Atlas Metal Parts Co.

National Labor Relations Board - Board Decisions

Sep 17, 1980

252 N.L.R.B. 205 (N.L.R.B. 1980)

ATLAS METAL PARTS CO.
Atlas Metal Parts Co., Inc. and Local 806, Interna-
tional Union, Allied Industrial Workers of
America, AFL-CIO. Cases 30-CA-4646 and
30-CA-4822
September 17, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On December 13, 1979, Administrative Law
Judge David L. Evans issued the attached Decision
in this proceeding. Thereafter, Respondent, the
General Counsel, and the Charging Party' filed ex-
ceptions and supporting briefs. Respondent also
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 3
The Administrative Law Judge found that the
General Counsel had failed to establish that Re-
spondent violated Section 8(a)(3) of the Act by re-
fusing to reinstate unfair labor practice strikers sub-
sequent to their unconditional offer to return to
work. He therefore recommended that that portion
of the complaint be dismissed. We disagree.
As fully set forth in the Administrative Law
Judge's Decision, the parties began negotiation for
a new collective-bargaining agreement on February
t We find no merit to the Charging Party's request for backpay for
striking employees during the strike. We also find no merit to the Charg-
ing Party's request for litigation expenses, see Heck's Inc., 215 NLRB 765
(1974).
2 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products;
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
We have also considered Respondent's contention that the Administra-
tive Law Judge displayed bias and prejudice against Respondent in this
proceeding and that he should have disqualified himself. We have care-
fully considered the record and the attached Decision and reject these
charges of bias alleged by Respondent as unsupported.
In fn. II of the Administrative Law Judge's Decision, the Administra-
tive Law Judge incorrectly stated that certain testimony referred to the
March 15 bargaining session rather than the February 15 bargaining ses-
sion. We hereby correct this inadvertent error.
s The Administrative Law Judge inadvertently did not include his
finding of Respondent's changing or eliminating employees' wages, hours,
and other terms and conditions of employment in his recommended
Order. We hereby include it. We also modify his notice to conform with
his recommended Order.
252 NLRB No. 29
1, 1978.4 Although the parties met on a number of
occasions, the Administrative Law Judge found,
and we agree, that Respondent did not bargain
with an intention of reaching an agreement and
thus engaged in surface bargaining in violation of
Section 8(a)(5) of the Act. It is within the context
of this bad-faith bargaining that, on April 1, the
union membership voted to strike in protest of Re-
spondent's unfair labor practices and in support of
the Union's contract demands. The strike began on
April 6 and continued until the Union notified Re-
spondent that the strike was to be terminated on
July 14. In addition, the Union notified Respondent
that all of the striking employees unconditionally
requested reinstatement on July 17 to their former
jobs. In agreement with the Administrative Law
Judge, we find that the strike was caused and pro-
longed by Respondent's unlawful conduct and that
it was an unfair labor practice strike.
An employer's responsibility to reinstate an eco-
nomic striker is limited to the employer's legitimate
and substantial staffing requirements. 5 On the other
hand, it is well established that, upon an uncondi-
tional offer to return to work, unfair labor practice
strikers are entitled to immediate reinstatement to
their former jobs or, if such jobs no longer exist, to
substantially equivalent positions. 6 Further, the
burden is upon the employer to offer immediate
and unconditional reinstatement, even if striker re-
placements must be terminated to make room for
the returning strikers. 7
In the instant case, at the time the striking em-
ployees unconditionally requested reinstatement,
Respondent was of the view that the strike had
been an economic strike and that the returning
strikers were economic strikers.8 Accordingly, Re-
spondent informed the Union that it would recall
the returning strikers to whatever jobs were availa-
ble. Respondent did not terminate any of the em-
ployees that had been hired to replace the strikers
in order to make room for the returning strikers.
Respondent merely offered to recall the strikers
when work became available. Respondent, howev-
er, had an obligation to offer immediate and full re-
instatement to its returning unfair labor practice
strikers and its failure to terminate strike replace-
ments in order to make room for those strikers vio-
* Unless otherwise indicated, all dates hereafter refer to 1978.
s The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert, denied 397 U.S. 920 (1970). See also N.LR.B. v.
Fleetwood Trailer Co.. Inc., 389 U.S. 375, 378 (1967).
6 N.LR.B. v. McKay Radio & Telegraph Co., 304 U.S. 333 (1938).
7 Laredo Coca Cola Bottling Company, 241 NLRB 167 (1979).
* At the time of the strike, at the hearing, in its brief to the Adminis-
trative Law Judge, and in its exceptions to the Administrative Law
Judge's Decision, Respondent has argued that the strike was an economic
one and that it was under no obligation to offer immediate reinstatement
to its employees who had unconditionally offered to return to work.
205
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lated Section 8(a)(3) of the Act.9 In these circum-
stances, we find in agreement with the General
Counsel that the questions of which employees
were discriminatorily denied reinstatement by Re-
spondent is a matter that can best be determined at
the compliance stage of this proceeding. Accord-
ingly, we find that the General Counsel has estab-
lished that Respondent violated Section 8(a)(3) and
(1) of the Act, by discriminatorily denying immedi-
ate reinstatement to unfair labor practice strikers
who had unconditionally offered to return to work.
AMENDED REMEDY
In addition to the remedies recommended by the
Administrative Law Judge, having found that Re-
spondent committed additional violations of Sec-
tion 8(a)(3) and (1) of the Act, we shall order it to
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Since we have found that Respondent failed to
reinstate the unfair labor practice strikers upon an
unconditional offer by the strikers to return to
work, we will order that they be offered immediate
and full reinstatement to their former jobs or, if
those jobs no longer exist, to substantially equiva-
lent positions without prejudice to their seniority
or their rights and privileges previously enjoyed,
and that Respondent make them whole for any loss
of earnings that they may have suffered by reason
of the unlawful failure to reinstate them by pay-
ment to them of a sum of money equal to that
which they normally would have earned as wages,
from the date of the unlawful failure to reinstate
them to the date of their actual reinstatement, less
net earnings to which shall be added interest com-
puted thereon in the manner prescribed in F. W
Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corp., 231 NLRB 651 (1977); ° see,
generally, Isis Plumbing & Heating Co., 138 NLRB
716 (1962).
Upon the foregoing findings of fact, conclusions
of law, and the entire record and pursuant to Sec-
tion 10(c) of the Act, we issue the following:
AMENDED CONCLUSIONS OF LAW
Add the following as Conclusions of Law 11:
"11. By refusing to reinstate unfair labor practice
strikers upon their unconditional offer to return to
work, Respondent has engaged in, and is engaging
9 Coca Cola Bottling Company of Miami Inc., 237 NLRB 936 (1977).
See also N.L.R.B. v. Top Manufacturing Co., Inc., 594 F.2d 223 (9th Cir.
1979).
t0 Member Jenkins would compute interest in the manner set forth in
his partial dissent in Olympic Medical Corporation, 250 NLRB No. II
(1980).
in, unfair labor practices within the meaning of
Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Atlas Metal Parts Co., Inc., Waukesha, Wisconsin,
its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraph (c) and re-
letter the subsequent paragraphs accordingly:
"(c) Refusing to reinstate unfair labor practices
strikers upon their unconditional offer to return to
work."
2. Insert the following as paragraph (e) and re-
letter the subsequent paragraphs accordingly:
"(e) Changing or eliminating employees' wages,
hours, or other terms and conditions of employ-
ment established by collective bargaining with the
Union without bargaining in good faith with the
Union."
3. Insert the following as paragraph 2(d) and re-
letter the subsequent paragraphs accordingly:
"(d) Offer all unfair labor practice strikers imme-
diate and full reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equiv-
alent positions without prejudice to their seniority
or other rights and privileges previously enjoyed,
and make them whole for any loss of pay they may
have suffered by reason of the refusal to reinstate
them by payment to them of a sum of money equal
to the amount they normally would have earned as
wages from the date of their unconditional offer to
return to work to the date of their reinstatement in
the manner set forth in the section of this Decision
and Order entitled 'Amended Remedy."'
4. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
206
ATLAS METAL PARTS CO.
WE WILL NOT refuse to bargain collectively
in good faith concerning rates of pay, wages,
hours, and other terms and conditions of em-
ployment with Local 806, International Union,
Allied Industrial Workers of America, AFL-
CIO, as the exclusive bargaining representative
of the employees in this appropriate unit:
All of our employees excluding executives,
supervisors, foremen, professional employ-
ees, office clerical employees, draftsmen, all
other employees who have the right to hire,
and fire and discharge and certain tempo-
rary employees not to exceed five (5) in
number, which are defined as summer stu-
dent help for a period not to exceed ninety
(90) days.
WE WILL NOT discourage membership in
Local 806, International Union, Allied Indus-
trial Workers of America, AFL-CIO, or any
other labor organization, by delaying reinstate-
ment of employees, reducing wages of employ-
ees, denying job opportunities to employees,
or otherwise discriminating against our em-
ployees for engaging in a protected strike or
other lawful union or concerted activities for
the purpose of mutual aid and protecton.
WE WILL NOT refuse to reinstate any unfair
labor practice striker who unconditionally
offers to return to work.
WE WILL NOT threaten employees with the
assignment of more onerous working condi-
tions if they file grievances.
WE WILL NOT instruct our employees not to
talk about the Union in the absence of a valid
no-solicitation rule.
WE WILL NOT change or eliminate our em-
ployees' wages, hours, or other terms and con-
ditions of employment established by collec-
tive bargaining with the Union without bar-
gaining in good faith with the Union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
WE WILL, upon request, bargain collectively
in good faith with the Union as the exclusive
representative of the employees in the above
bargaining unit concerning rates of pay,
wages, hours, and other terms and conditions
of employment, and embody any understand-
ing reached in a signed agreement.
WE WILL, upon the Union's request, rescind
any or all changes in terms and conditions of
employment made by us after February 15,
1978, pursuant our unilateral implementation
of certain of our bargaining proposals, includ-
ing specifically our proposed elimination of
our employees'pension plan, making payments
as necessary to restore the plan. We shall con-
tinue such conditions in effect and continue to
make such payments as required to the pension
fund until we have negotiated in good faith
with the Union to a new agreement or an im-
passe on the pension fund and other matters
affecting our employees' terms and conditions
of employment.
WE WILL make whole any of our employees
in the above-described unit for any losses they
may have suffered as a result of our unlawful
unilateral actions, including specifically our
unlawful elimination of their pension plan.
However, our employees shall not be required
to repay us for the moneys they received in
lieu of payments to their pension plan which
we unlawfully abolished.
WE WILL offer unfair labor practice strikers
immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions without prej-
udice to their seniority or other rights and
privileges previously enjoyed, and WE WILL
make them whole for any loss of pay they
may have suffered by reason of the refusal to
reinstate them by payment to them of a sum
equal to the amount they normally would have
earned as wages from the date of their uncon-
ditional offer to return to work to the date of
their reinstatement, plus interest.
WE WILL furnish the above-named labor or-
ganization the information it requested con-
cerning the use of subcontractors.
WE WILL make whole, with interest, Donald
Behling for any losses he may have incurred
by reason of our unlawful delay in reinstating
him, the reduction of his wage rate, and the
refusal to consider him for a truckdriving job,
and WE WILL, only on the basis of lawful con-
siderations, give Donald Behling consideration
for the job of truckdriver and give him a rea-
sonable amount of time to consider any offer
made in that regard.
WE WILL reimburse employee-members of
the union negotiating committee for wages
they lost, if any, while attending negotiating
sessions on and after February 15, 1978, with
interest.
ATLAS METAL PARTS CO., INC.
207
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: A hear-
ing in this consolidated proceeding was held on May 7,
8, 9, and 10, 1979, at Milwaukee, Wisconsin, based on
charges filed against Atlas Metal Parts Co., Inc., herein
called Respondent or the Company, by Local 806, Inter-
national Union, Allied Industrial Workers of America,
AFL-CIO, herein called the Union or the Charging
Party. Based on these charges the Regional Director
issued complaints and first amended consolidated com-
plaint and notice of hearing alleging various violations of
Section 8(a)(1), (3), and (5) of the Act by Respondent.
Amendments to the first amended consolidated com-
plaint were made at the hearing. Respondent duly filed
answers to the complaints and amendments thereto deny-
ing the commission of any unfair labor practices.
The General Counsel, the Charging Party, and Re-
spondent have filed briefs which have been carefully
considered.
Upon the entire record' and my observations of the
witnesses and upon the inherent probabilities and im-
probabilities of the testimony of the witnesses, and
having taken into account the arguments made at the
hearing and in the briefs submitted, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent is a Wisconsin corporation engaged in the
manufacturing and processing of metal parts in Wauke-
sha, Wisconsin, where during the year preceding the is-
suance of the complaint herein it purchased and received
goods and materials valued in excess of $50,000 directly
from points located outside the State of Wisconsin and
sold and shipped goods valued in excess of $50,000 di-
rectly to customers located outside Wisconsin. The com-
plaint alleges, Respondent admits, and I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
Respondent is basically a job-shop manufacturing op-
eration which employs approximately 35 employees on
two shifts. It has recognized the Union since about 1956
as the collective-bargaining representative of its produc-
tion and maintenance employees. The parties have en-
tered successive collective-bargaining agreements, the
most recent of which (and which I shall refer to as the
1977 contract) was effective from March 1, 1977, to
March 1, 1978. All contracts since 1957 have provided a
union-shop agreement requiring employees to join the
Union (and/or maintain their membership therein) after
I Counsel for the General Counsel has moved without opposition that
the transcript be corrected in certain respects.
45 days of employment. Since 1967 all agreements have
contained a provision for checkoff of union dues. At the
hearing it was stipulated that as of February 3, 1978,2 33
of the 35 employees in the production and maintenance
unit were members of the Charging Party and have ex-
ecuted authorizations for checkoff of their union dues
from their weekly paychecks.
The parties met 19 times between the date of Februray
1, 1978, and February 13, 1979, to negotiate renewal of
the 1977 contract. The central issue of this case is wheth-
er during the course of these meetings Respondent nego-
tiated without intent to reach a collective-bargaining
agreement. Other issues in this case are whether Re-
spondent engaged in various acts in violation of Section
8(a)(1) before, during, and after the period of negotia-
tions; whether a strike which occurred during the midst
of the negotiations was caused or prolonged by any
unfair labor practices of Respondent; whether Respond-
ent discriminated against certain employees in violation
of Section 8(a)(3) of the Act before or after the strike;
and whether Respondent committed various other viola-
tions of Section 8(a)(5) of the Act by such alleged ac-
tions as individual bargaining, unilateral actions, and re-
fusal to furnish information relevant and necessary to the
Union's function as collective-bargaining representative
of the employees in the unit.3
A. Alleged Independent Violations of Section 8(a)(1)
and Discrimination Against Employee Rigdon
The complaint alleges that during February and
March Supervisors Frank Barr and Robert Palatear
threatened an employee, namely, Darrell Rigdon, with
more onerous working conditions if he filed grievances
and impliedly promised him better working conditions if
he refrained from doing so.
The punch press operators, such as Rigdon, were paid
on an incentive basis. Jobs were rated as to how many
pieces could be made in an hour. If incentive employees
made above the rate, they would receive a commensu-
rate percentage above a contractually stated base rate.
Obviously, if a job was rated too high it would be more
difficult, or impossible, to make the incentive premium.
If an employee felt the rating on a job was too high, he
would, by himself or through his committeeman, verbal-
ly complain or grieve to Foreman Barr or Assistant
Foreman Palatear.
Rigdon testified that in early February he was work-
ing on a job when Frank Barr approached him and com-
mented that the particular job was well rated. Rigdon re-
plied that it was not and he intended to file a grievance
which he thereafter did. The grievance was successful
2 All dates hereinafter are within 1978, unless otherwise stated.
3 As alleged in the complaint and admitted by Respondent, the parties'
contracts have included the following unit description which unit is ap-
propriate for the purposes of collective-bargaining under Sec. 9 of the
Act:
All employees of Respondent] excluding executives, supervisors,
foremen, professional employees, office clerical employees, drafts-
men, all other employees who have the right to hire and discharge
and certain temporary employees not to exceed five (5) in number
which are defined as summer student help for a period not to exceed
ninety (90) days.
208
ATLAS METAL PARTS CO.
and the job rerated but, according to Rigdon, Barr ap-
proached him shortly thereafter and, "told me that I
should stop filing a grievance on jobs. And if I did that,
I would make more money and things would run a lot
smoother. And if I did not, he would give me, as we
refer to, as dirty jobs, which means bad rated jobs."
Rigdon further testified that in early March, after he had
been successful in another grievance, Barr repeated the
previously quoted statement. After this second grievance
and second comment by Barr, according to Rigdon, as-
sistant foreman Palatear approached him and told him
"basically the same thing as Frank told me in the morn-
ing, that I should keep a low profile and come down and
stop writing grievances on the jobs, and I would defi-
nitely make more money."
When asked about this last remark on cross-examina-
tion, Palatear credibly denied the "low profile" remark,
but he, as well as Barr, admitted telling Rigdon that if he
would spend less time filing grievances he would make
more money. Barr denied being able to recall telling
Rigdon that he would receive "dirt" jobs if he continued
filing grievances about rates, but his testimony fell short
of a credible denial of Rigdon's testimony that Barr
twice threatened him with "dirt" or heavy jobs if he
continued filing grievances over rates. Both Barr and Pa-
latear acknowledged that Rigdon filed more grievances
over rates than most other employees.
Since Rigdon was an incentive employee, the admitted
statements that it would be more profitable for him to
spend time working, even as opposed to filing griev-
ances, appears to be self-evident, and nonviolative. How-
ever, the remark by Barr that he would assign "dirt"
jobs to Rigdon if he continued to file grievances is a
direct threat of retaliation for engaging in protected ac-
tivities and I find and conclude that it was a violation of
Section 8(a)(1) for Barr to have done so.
As violation of Section 8(a)(3) of the Act, the General
Counsel alleges that after Barr's second remark regarding
"dirt" jobs, "Respondent discriminatorily assigned its
employee Darrell Rigdon to more onerous tasks for
having filed a grievance." In this regard Rigdon testified
that shortly after Barr's second threat of "dirty" jobs, he
was assigned a quarter-inch steel job which lasted for 4
days. Rigdon testified that employees were usually left
on such jobs for no more than 2-1/2 or 3 days. Rigdon
first testified that he did not complain to the foreman
about being kept on the job the fourth day, but then he
testified that he complained to his foreman (not specify-
ing Barr or Palatear) and was told to file a grievance.
Rigdon first testified that no grievance was filed over the
matter, but he then testified that a grievance over harass-
ment was filed in regard to the assignment. No such
grievance was placed in evidence if it was filed.
Barr and Palatear testified that jobs were assigned in
rotation and there is no evidence that the initial assign-
ment of the job in question was made on any other basis.
That is, there is no evidence that the job was taken out
of rotation in order to give it to Rigdon and Rigdon did
not claim to have been working on another job when he
received the assignment. There was no reliable evidence
that employees were taken off of such jobs without re-
quest after the third day and Rigdon's testimony of his
complaint and grievances, or lack thereof, is too self-con-
tradictory to conclude that he was left on the job despite
complaints. In summary, I find there is insufficient evi-
dence to support a conclusion that because of discrimina-
tory motivation Rigdon was either assigned or left upon
a more onerous task because he had filed a grievance.
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
The complaint alleges that in the week before the
strike which began on April 6, 1978, Respondent's presi-
dent, Fenlon, encouraged an employee, namely, Edwin
Kressin, to take a vacation "so that the employee would
not be present at the start of the anticipated strike and
available to go on strike." Kressin had been a spot
welder for Respondent since 1939 and was the senior
employee in the plant. In such position he had first
choice as to when he would take his vacation. Kressin
testified that some time during the week before the April
6 strike, Fenlon spoke to him at his work station and
"told me if I could take my vacation, because the em-
ployees are going out on strike, and that way I wouldn't
have to worry about walking. And when it was over, I
could come back to work." Kressin testified that he told
Fenlon that he would not take his vacation at that time
because he wanted to be present to assist the striking em-
ployees and engage in the picketing himself because
"them are my buddies, and I organized this Union in
1954. And, I said, we'll go in and either make it or break
it."
Fenlon testified that before the exchange between
Kressin and him, Respondent had posted a notice show-
ing how much vacation time each employee had ac-
crued. Fenlon testified that the strike vote had been
taken and "I explained to Mr. Kressin that the vacation
schedule if he was going to take vacation, would have to
be scheduled to a strike because if the Union did go on
strike all benefits would stop, including vacations, pay-
ment to the pension fund, and insurance benefits." Kres-
sin denied that Fenlon suggested that the vacation be
taken before the strike because Respondent would not be
paying vacation benefits during the strike.
I credit Fenlon's account of this exchange. There is no
evidence that Kressin was particularly active in the
Union at that point and, although he had been one of the
original organizers, there is no reason to believe that
some 25 years later Fenlon would select him as an em-
ployee worthy of inducement to refrain from strike ac-
tivities. Accordingly, I shall recommend that this allega-
tion of the complaint be dismissed.
The complaint alleges that in the week before the
April 6 strike, Barr told an employee that he was stupid
if he went on strike. For this allegation the General
Counsel relies on the testimony of David Donald
Roessler, who testified Barr made such a statement. Barr
testified that he recalled making such statement to
Rigdon, but not Roessler. He testified that he told sever-
al employees that they would be stupid to be striking
rather than working and getting paid.
The General Counsel advances no cogent argument
for concluding that Barr's undenied remark would inter-
fere with, restrain, or coerce Roessler or any other em-
209
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee in their Section 7 rights, and none can be envi-
sioned by me. Accordingly, I shall recommend that this
paragraph of the complaint be dismissed.
The complaint alleges that in April, after the strike
began, Fenlon created the impression that the employees'
union activities were being kept under surveillance. The
General Counsel does not indicate upon what testimony
he relies for such an allegation, but presumably it is that
of employee Ronald Edward Kennedy who testified that
on a Saturday during the strike Fenlon was driving his
automobile out of the plant through a gate which Kenne-
dy was picketing. Kennedy testified that Fenlon "rolled
down the window and said . . . he asked what I was
doing there because he felt there was a union meeting,
he said. And I said there wasn't any to my aware. And if
there was, I didn't know anything about it. And then he
said well, I could go home unless I wanted to watch an
empty plant." Fenlon admitted the remarks as testified to
by Kennedy; however, I can find no element of interfer-
ence with or restraint or coercion of Respondent's em-
ployees' Section 7 rights in this remark. Accordingly, I
shall recommend that this allegation of the complaint be
dismissed.
The complaint alleges that in early April, Fenlon "so-
licited a striking employee to return to work with a
promise of police protection while crossing the picket
line." To this allegation employee Kennedy testified that
a week after the strike started he and his son went to the
office to pick up a paycheck he had coming. Kennedy
asked Fenlon how long the strike would last and Fenlon
replied that it was up to the employees and "he said I
could come back to work any time I wanted and I didn't
have to feel any threats, that he had police protection for
us." This comment is undenied by Fenlon but under the
circumstances, I again can find no element of interfer-
ence with or restraint or coercion of employees in their
exercise of Section 7 rights in this one remark and, ac-
cordingly, I shall recommend that this allegation of the
complaint be dismissed.
The complaint alleges that on or about August 10,
Jacob Teufel, Respondent's production manager, "threat-
ened an employee with discharge if the employee did not
accept a transfer to another job." The General Counsel
does not mention the matter in his brief, but presumably
he relies on employee Donald Behling's testimony that,
after the strike, as employees were being reinstated to
various jobs, Teufel told him that he would be required
to accept a job as a punch press operator or be dis-
charged. Behling had theretofore been a tool and die-
maker, as discussed infra.
Teufel admitted making the statements in question to
Behling, however, he also added that, upon legal advice,
he almost immediately repudiated the remark and by tell-
ing Behling that he did not have to accept the transfer.
Behling acknowledged this repudiation in his testimony,
and I find that there is no violation of the Act in Teufel's
repudiated remark. Accordingly, I shall recommend this
paragraph of the complaint be dismissed.
The complaint alleges that during August 1978 Barr
"prohibited employees from talking about union mat-
ters." Behling testified, and Barr essentially admitted,
that as he was engaging in a discussion with other em-
ployees just before quitting time, Barr, from about 30
feet away, yelled at him to stop talking about union busi-
ness on company time. There had never before been a
rule against talking about union or any other matters
during employees' working time and I find that Barr's
(yelled) instruction to Behling violated Section 8(a)(1) of
the Act as it was a discriminatory prohibition to Behling
(and all other employees who heard, or heard of, the in-
struction) against engaging in discussions about the
Union but no other topic.
B. Alleged Bad-Faith Negotiations
1. The negotiations
The bargaining sessions in issue were conducted for
the purpose of negotiating a contract to succeed the 1977
contract. Both parties made written and oral proposals
which were keyed to that contract. 4
Minutes of each of the 19 bargaining sessions were
kept by Respondent's negotiator, James C. Mallien. 5 The
Union's chief negotiator, Regional Representative Mark
Bloomier,6 was the General Counsel's chief witness
about the substance of the bargaining sessions, and Mal-
lien was Respondent's. The minutes of the sessions
(which were composed by Mallien immediately after
each session) were introduced into evidence by the Gen-
eral Counsel. Bloomier was asked whether the minutes
of each session contained "any inaccuracies, incomplete-
ness or misstatements of the Union's position taken at
[each] meeting." Bloomier usually answered in the nega-
tive to this repeated inquiry. Where he took exception to
statements or testified about additional remarks which
are significant, 7 I have noted his testimony. Respondent
basically relied on the minutes as its evidence of what
happened at the meetings, Mallien making only a few ad-
ditions (which are noted) and no deletions to the minutes
in his testimony. Therefore, the recitations of fact about
the sessions are the recitations of the minutes unless oth-
erwise indicated.
Meeting 1, February 1, 1978
At the first session, the Union presented a list of items
as proposals for changes in the 1977 contract which Re-
spondent aptly described as a "laundry list." The Union
made the following proposals: Allowing checkoff on al-
ternate paydays so that an increase in Union dues could
be taken out of larger checks; an additional holiday; pro-
visions covering when holidays fall on Saturdays and
Sundays; provisions regarding applications of seniority to
layoff; calculation of pay for vacations for employees
who transfer from piecework to hourly basis; add over-
' It is to be noted that, although the parties had had a contractual rela-
tionship for over 20 years, only the original and the 1977 contracts were
placed in evidence. Accordingly, I have relied on stipulations of the par-
ties and undisputed testimony for the history of certain clauses.
5 Mallien was usually assisted by Respondent's president, Lester G
Fenlon, or Production Manager Jacob (Jake) Teufel, and/or Supervisor
Richard Geux.
K Bloomier was usually assisted by employee bargaining committee
members Behling, Kohn, and/or Deitzler.
7 Bloomier also did a small amount of quibbling with certain recita-
tions in the minutes which is unnecessary to discuss herein.
210
ATLAS METAL PARTS CO.
time to computing vacation pay; add specified relatives
for coverage of the funeral leave clause; 20-percent in-
crease in wage rates; cost-of-living clause granting a 1-
cent raise for each 3/10-percent increase in the 1967
Consumer Price Index every 3 months; proposals for pe-
riodic wage reviews; proposals to bring a timestudy
expert into the plant if the grievance procedure does not
settle rates for new jobs; increase second-shift premium
from 20 cents to 25 cents; increase employer contribution
for insurance from 85 percent to 100 percent; replace
Travelers Insurance Company, the existing company car-
rier, with Allied Industrial Workers' Health and Welfare
plan; substantial increase in coverage of the health plan;
increase in pension contributions to the Allied Industrial
Workers' plan from 17 cents to 22 cents per hour for all
hours worked; count contract negotiation and grievance
procedure time spent by bargaining committee members
in calculating vacation and pension; increase life insur-
ance from $4,000 to $6,000; increase weekly accident and
sickness benefit from 84 to $110; add two classifications
to the contract and delete one; and certain down time be
paid at 150 percent of base rate.
Mallien asked Bloomier what he thought of the idea of
direct payments to employees instead of contributions to
the AIW pension plan provided by all prior contracts be-
tween the parties. Mallien noted that employees could
invest such moneys in an individual retirement account s
if they wished. Bloomier expressed doubts about how
such a plan could work; Mallien asked Bloomier to at
least find out what the members thought about it.
Meeting 2, February 15, 1978
There was little discussion at the second meeting. The
Company presented its initial proposal which was keyed
to the 1977 contract. Article by article the following
proposals were made by Respondent:
The 1977 contract excluded from the bargaining unit
described in Article 1, "Recognition, Purpose and Union
Security," five summer students who worked for less
than a 90-day period. Respondent proposed deletions in
the clause so that five "students, whether they worked
only in summers or whether they worked more than 90
days, would be excluded from the unit." The "purpose"
section had recited that a harmonious relationship is an
objective of the contract and that the parties would
strive for a "continuously more successful operations."
Respondent proposed to eliminate this clause and "pur-
pose" is stated to be only the setting forth of the terms
and conditions of employment. Respondent proposed to
delete the union-shop9 provision which had appeared in
all prior contracts dating back to 1957. In the place
thereof Respondent proposed to insert:
Section 1.03. The Union and the Company agree
that whether an employee belongs to the Union or
doesn't belong to the Union is a matter of personal
'Such individual programs are available under 1974 amendments to
the Internal Revenue Code, 26 U.S.C. § 408, where no employer pro-
gram is available.
I This clause stated that employees would be required to join the
Union after 45 days or employment and/or maintain their membership in
the Union, as noted above.
choice for each individual employee. Employees do
not have to belong to the Union or pay a fee to the
Union in order to work at the Company.
This "affirmative-no-union-shop" language pro-
posal, °0 as I shall refer to it herein, plays a signifi-
cant part in the negotiations. Respondent further
proposed to eliminate checkoff which had been in
all previous contracts since 1967.
The following changes in the prior article 11, "Hours
of Work and Overtime," were proposed by Respondent:
A provision that reduction of the 8-hour workday 40-
hour workweek must be by mutual consent was eliminat-
ed. Respondent proposed that shift hours could be
changed on "business needs," and Respondent proposed
to delete the prior provision that 48 hours' notice to em-
ployees and committeemen would be given if shift hours
were changed; Respondent proposed to substitute there-
for a proposal to give "reasonable" notice to employees,
making no mention of committeemen. The 1977 contract
limited a 4-hour showup pay provision by only specified
causes "such as fire emergencies, power breakdowns";
Respondent proposed to limit the showup pay to all
"contingencies beyond the control of the company." The
1977 contract covered all injuries on company property,
granting employees pay for the remainder of the shift;
Respondent's proposal covered only pay for injuries "in
the course of employment." Respondent proposed
making all overtime compulsory, although it did agree to
ask all qualified employees before compelling any one
employee to work overtime.
For article III, "Holidays," no change was proposed
by Respondent.
For article IV, "Seniority," the following proposals
were made: The definition of "seniority" would be
changed from "length of service" to length of time that
an employee had worked for the Company, the differ-
ence being that striking time would not be considered as
time worked. For layoffs, Respondent proposed that full-
time employees could bump part-time employees if the
full-time employee is "qualified"; the prior contract re-
quired only the full-time employee "be available." Re-
spondent also proposed to be allowed to deviate from se-
niority in selecting two employees during a contract year
who would not be affected by a layoff. The 1977 con-
tract recited that in cases of recalls, seniority would
govern provided that an employee could perform the
work; Respondent proposed to add the word "satisfacto-
rily" to the performance requirement. The prior contract
provided recall rights companywide; Respondent's pro-
posal provided for recall "by classification." The 1977
contract provided that seniority would terminate upon
layoff for a period one-half the length of an employee's
seniority or I-year service, whichever one is greater; Re-
spondent proposed that layoffs of 12 months or the
length of seniority, whichever is less be deemed to termi-
nate seniority. (The net effect, of course, would be that
employees with less than one or greater than 2 years se-
10 Respondent essentially duplicated the effect of this proposal in a
proposed amendment to the "Non-Discrimination" clause of the 1977
contract. However, this redundant clause was not mentioned again in the
bargaining, and I shall make no further reference to it in this Decision.
211
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
niority would lose recall rights they would otherwise
have had under the 1977 contract.) The 1977 contract
provided for superseniority, not limited to layoffs and re-
calls, for bargaining committee members who, under all
contracts and proposals, had grievance-handling func-
tions; Respondent proposed to delete all superseniority
for the individuals holding these positions.
Article V, "Leave of Absence," of the 1977 contract
provided for leaves of absences without limitation upon
the basis on which they could be granted; Respondent's
proposal recites that leaves of absences would be granted
only for specified reasons, to wit: maternity, illness in the
immediate family, or physical or mental disabilities. Re-
spondent's 1978 proposal would have barred all "gainful
employment" during any period of layoff; there was no
such limitation in the 1977 contract.
Respondent proposed to change article VI, "Vaca-
tions," to base vacation pay on total earnings for the
prior 12 months divided by 52, as opposed to the method
of the 1977 contract which provided vacation pay based
on hourly rate or incentive pay for the preceding 12
weeks. (Of course, the net effect of Respondent's propos-
als was to penalize employees for nonpaid time during
the preceding year, such as strikes.)
Article VII of the 1977 contract, "Grievance Proce-
dure," provided for grievance procedure and binding ar-
bitration. Respondent proposed no changes in the griev-
ance procedure but did propose that rather than arbitra-
tors being selected from panels submitted by Federal Me-
diation Conciliation Service, a permanent arbitrator,
from panels submitted by the Wisconsin Employment
Relation Commission, be designated. For the arbitration
clause Respondent proposed deletion of the expression
that arbitration is binding on the parties. It further pro-
posed that either party could demand the transcript of
arbitration proceedings and, if this demand was made,
the cost of the transcription would be equally borne by
the parties; in the 1977 contract cost fell on the party re-
questing transcription. Respondent further proposed that
a 20-day limit be placed on any transcription and a 45-
day limit be placed on any arbitrator to issue his deci-
sion. The prior contract permitted bargaining committee
members to leave their departments to investigate or
adjust grievances if they secured permission of their su-
pervisors. Respondent proposed that, in addition, bar-
gaining committee members must also receive permission
of the supervisor of any department they seek to enter to
investigate or adjust a grievance. The 1977 contract pro-
vided for pay for bargaining committee members while
handling grievances; Respondent proposed to delete such
pay except where the bargaining committee members
were attending meetings scheduled by Respondent
during working hours. Respondent further proposed ex-
pressly to eliminate pay for any time spent by the bar-
gaining committee members in bargaining, whereas there
was no provision on this topic in the 1977 contract.
Article VII of the 1977 contract had a usual no-strike
clause; Respondent proposed to eliminate the employees'
right to engage in sympathy and unfair labor practice
strikes in the 1978 contract.
Respondent proposed no expressed change in article
VIII, "Management Rights Clause."
Article IX of the 1977 contract, entitled "General,"
provided for union executive board or bargaining com-
mittee members being allowed to have an unspecified
amount of time off for "Union business" during regular
working hours after receiving approval from Respond-
ent; Respondent's 1978 proposal provided for leaves of
absences for not more than 30 days for executive board
or bargaining committee members for the purpose only
of attending "a convention of the Union." Article IX of
the 1977 contract further provided that any changes in
wages, hours, or working conditions must be by mutual
consent; Respondent proposed to delete this section and
in its place establish the unqualified right to "institute or
pay wages and/or benefits which are in excess of the
minimum provided in this agreement." Article IX of the
1977 contract further provided that supervisors could not
perform bargaining unit work except in specified condi-
tions such as instructing new employees; Respondent's
1978 proposal repeats the exceptions with the preference
that "the company will not normally assign supervisors
to the performance of work normally performed by
members of the bargaining unit except under [the same
specified conditions]." (Of course, injection of the term
"normally" twice would render the section meaningless.)
The 1977 contract provided that employees would not
be required to work on material from a strikebound
plant; Respondent's March 15 proposal would qualify
such restrictions with the phrase "from a strike-bound
plant that is not an established customer of the compa-
ny." Article IX of the 1977 contract had permitted post-
ing of all Union notices except those which will in
anyway embarrass or harass the Company. Respondent's
proposal limited the use of the bulletin board to the an-
nouncement of union meetings, elections, appointments,
and union recreational and social events. The 1977 con-
tract had simply required employees to receive regular
pay, less jury pay, for any days they served on a jury.
Respondent's proposal limited jury pay to 10 days and
required employees to report for work on days they
served on juries "whenever possible for more than 1
hour" or be disqualified for jury pay. Respondent's pro-
posal for article IX would have further deleted the prior
contract's provision that required removal of all written
warning notices from any employee's personnel file 1
year after entry and further provided that disciplinary
action for violation of one rule would not be culminative
as to violations of other rules. Finally, for article IX, Re-
spondent proposed that funeral leave be reduced in terms
of which relatives' death are included and the time al-
lowed for funeral leave reduced to that necessary to ar-
range and attend up to maximum of 3 days; the prior
contract simply allowed 3 days for the funerals of speci-
fied relatives.
Except for a proposed general increase, discussed
infra, Respondent made no proposals in the language of
article X, "Wages," or article XI, "Insurance."
The prior contracts between Respondent and the
Union provided for participation in the Allied Industrial
Workers' AFL-CIO, region 9 pension trust fund in con-
junction with Bankers Life Insurance Company, Des
Moines, Iowa. The 1977 contract, article XII, provided
212
ATLAS METAL PARTS CO.
for a contribution of 17 cents per hour for each hour
worked by Respondent to that pension fund. In its Feb-
ruary 15 proposal, Respondent proposed that it retain the
right to eliminate the pension fund and pay, by separate
quarterly check, each employee 17 cents per hour for up
to 40 hours a week worked; the prior contract provided
no limitation on the number of hours per week per em-
ployee for which Respondent was required to contribute
to the AIW pension fund. The proposal to delete the
pension funds concluded:
It is hoped that the employees would utilize this ad-
ditional money for Individual Retirement Account
(IRA) in accordance with applicable law. Upon ob-
taining written authorization from an employee, the
company will deposit this money directly to the em-
ployee's Individual Retirement Account.
Article XIII of the prior agreement "Terms of Agree-
ment," simply recited that the contract was intended to
be the entire agreement between the parties and the par-
ties intended the agreement to conform to existing laws.
For article XIII, Respondent proposed to eliminate those
provisions. It proposed "Rules of Construction," a sec-
tion which would restrict the definition of "just cause"
and place a strict definition of "past practice" on arbitra-
tors which would exclude from consideration, inter alia,
matters which "must not be in opposition to the terms
and conditions of this agreement." (Of course, agreement
with this latter term would mean that arbitrators could
not consider past practices.) Respondent further pro-
posed as "Waiver of Bargaining," a waiver of bargaining
rights during the term of the agreement not only as to
matters expressly covered but also "any subject or
matter not specifically covered in this Agreement, even
though said subject of matter may not have been within
the knowledge or contemplation or either or both of the
parties at the time they negotiated or signed this agree-
ment."
Respondent's proposal of February 15 concluded, "the
Company proposes an across-the-board wage increase of
6.8 percent for all regular full-time employees. For in-
centive workers, the implementation to affect [sic] the in-
crease to be discussed and worked out." Mallien testified
that at this meeting, Respondent also proposed that the
Union could have simply a renewal of the 1977 contract,
with no changes, if it were willing to accept a 6.8-per-
cent wage increase. Bloomier did not directly dispute
Mallien's testimony on this point; he testified that he
simply could not remember such a proposal being made.
When asked what the Union responded to the "inde-
pendent 6.8 percent increase" proposal, Mallien testified
that the Union stated that it would have to study Re-
spondent's proposals before replying. In addition to
Bloomier's failure to deny Mallien's testimony, Respond-
ent points to its minutes of the February 15 meeting as
corroborating Mallien's testimony that the unqualified
6.8-percent wage increase proposal was made at the Feb-
ruary 15 meeting. Respondent notes that the minutes of
this meeting (as well as other meetings), were posted by
Respondent at the plant and no bargaining committee
member objected to the inclusion of the reference to this
proposal. However, even without a credible, unqualified
denial, it is unlikely that the proposal was made at all,
but a virtual certainty that if it was, it was not made in a
serious vein. The reasons for this conclusion are:
(1) Mallien was clear that his negotiating instructions
from Fenlon were to "try and get a contract that would
not require people to belong to the Union. Try to do
something about the pension. And try to keep the eco-
nomics to a cost-of-living increase which was somewhere
around 6.8." Also, Fenlon himself admitted on cross-ex-
amination that elimination of union shop and checkoff
were "must" items and he never authorized Mallien to
change Respondent's position on those issues." Mallien
is a lawyer of 30 years' experience and I am confident
that he had no intention of committing the gross misfea-
sance of simply renewing the 1977 contract without any
attempt to eliminate the pension fund obligations and the
union-shop clause as instructed by Fenlon.
(2) The proposal (of contract renewal, a 6.8-percent
wage increase, and nothing more) was never reasserted,
even in the face of strike threats, a 12-week strike, and
over a year of negotiations, all discussed infra. Had the
proposal been made, Respondent assuredly would have
reasserted it at some stage of this protracted, expensive
labor dispute.
(3) The proposition of a 6.8-percent increase in wage
with no other changes and a proposal of a 6.8-percent in-
crease in wages coupled with the plenary changes just
enumerated are mutually exclusive. It would be fatuous
to conclude that Respondent went to all the trouble of
preparing the enumerated proposals with the serious in-
tention of dropping them if the Union would agree
simply to an increase in wage rates equal to the preced-
ing year's increase in the Consumer Price Index.
(4) As discussed infra, Respondent granted wage in-
creases far in excess of 6.8 percent and continued to
insist (throughout a 12-week strike and over a year of ne-
gotiations) on, inter alia, the elimination of union shop
and checkoff, thus, demonstrating that its objective was
far greater than limiting its costs to 6.8 percent which is
all that would have been achieved had its proposal been
serious.
(5) Mallien had testified that the Union responded to
this "proposal" by saying it would have to consider the
language of other proposals. Mallien did not at the fol-
lowing meeting (or thereafter) ask if the Union would
accept the 6.8-percent wage increase without any lan-
guage changes. Had Respondent been serious, it at least
would have asked.
Actual, serious, proposals, acceptance of which would
dramatically alter the course of bargaining would, at
least, be mentioned more than once. The "proposal" of
6.8-percent wage increase, contract renewal and nothing
more was mentioned again by neither party during the
course of the bargaining, either verbally or in writing.
' In self-contradictory testimony which I discredit, Fenlon did testify
that while the elimination of the union-security provisions were a "must"
item and that he never authorized Mallien to deviate from that position.
Respondent did offer to simply renew the contract for a 6 8-percent wage
increase at the March 15 meeting
213
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meeting 3, February 23, 1978
Respondent's minutes of the third meeting state that
Mallien proposed to put into effect the 6.8-percent
across-the-board wage increase, effective March 1, while
negotiations continued, and the Union was opposed to
such implementation. Bloomier testified that the Union
stated that any wage increases should be held so that a
complete contract could be negotiated. Bloomier further
testified, without contradiction, that in this meeting Re-
spondent gave as its reasons for proposal of deleting the
union-shop and checkoff provisions that Respondent
wanted the employees to have freedom of choice about
the union membership and did not want to be bothered
with the union business of checkoff. Bloomier testified
that he responded that the parties had had the union-
shop agreement since the beginning of the relationship
and things had not been that difficult. The exchange re-
garding the union-shop and checkoff positions are not re-
corded in Respondent's minutes nor was the Union's
stated reason for the Union's opposition to the implemen-
tation of the 6.8-percent wage increase on March 1.
At the February 23 meeting the Union dropped its
proposals regarding reporting paying, additional holiday,
laying off of part-time employees, methods of computa-
tion of credit earned vacation, institution of a cost-of-
living clause, and requests for additional classifications.
The Union explained several other proposals and made
the following modifications of its economic proposals:
Instead of 20-percent increase in I year, the Union pro-
posed a 2-year contract with I l-percent increase the first
year and 10-percent increase the second year (to this
Mallien responded that the wage increases would force
Respondent out of competitive position); it reduced its
demand for 100-percent contribution to the health insur-
ance program to 90 percent; it dropped its pension con-
tribution demand from 22 cents to 19 cents the first year
and 20 cents the second year; and it dropped its life in-
surance coverage demand from $6,000 to $5,000.
In discussing Respondent's proposal of February 6, the
Union agreed to the "Purpose" proposal but none other.
Respondent offered no change in its proposals (and, spe-
cifically, it did not propose that the prior contract be re-
newed with a 6.8-percent wage increase).
Meeting 4, March 10, 1978
The parties met at the Federal Mediation and Concilia-
tion Service office, with Commissioner DeHaven, for the
fourth meeting. Also present was an AIW pension trust
administrator who was present to discuss various
changes that were to be made in the AIW pension plan.
According to Respondent's minutes, Bloomier an-
nounced that there had been a membership vote to strike
but he had personally restrained the men. Mallien replied
that the employees could strike but the Employer could
replace the striking employees.
The minutes recite that the Union agreed to portions
of Respondent's proposal to limit the authority of arbi-
trators but was opposed to the concept of a permanent
arbitrator. The minutes further state that the Union
agreed to Respondent's proposed "Waiver Bargaining
Clause" if the following sentence could be added:
This shall not prevent parties from mutually agree-
ing to changes or amendments if they wish.
Bloomier denied that he agreed to Respondent's propos-
als on arbitration and waiver of bargaining and I credit
his denial. 12
No other matters were agreed upon at this session; the
minutes reflect no concessions by Respondent.
Meeting 5, March 15, 1978
For the fifth meeting, the parties met with the Federal
mediator, and the Union made the following proposals:
The Union reproposed its original demand that in the
event an employee does not have a paycheck forthcom-
ing out of which union dues could be paid such deduc-
tion will be made the following payday; the Union reas-
serted its demand for an additional floating holiday; it re-
duced its wage increase request to 9-percent for the first
year, but requested a 9-percent wage increase for a
second year of the contract; it further proposed a shift
premium of 22 cents, an insurance contribution of 100-
percent on the part of Respondent (which was an in-
crease of its 90-percent demand on February 23); it re-
duced its demand for increased accident and sickness
coverage, it proposed that the pension stay with the
AIW plan, and it reduced its weekly accident and sick-
ness benefit demand to $91 per week. The Union's
March 15 proposal included a second year of the con-
tract with a 9-percent wage increase, a shift premium of
23 cents and an increase in accident and sickness benefit
to $98 a week.
Mallien asked for specific union responses on Respond-
ent's proposal of February 15, its initial proposal, and the
minutes reflect the following: The Union stated that it
opposed the unlimited right of Respondent to raise
wages above stated minimums because it was afraid of
favoritism. Mallien responded that he would propose an
employers' right to raise wage "on a classification or
across-the-board basis." Bloomier denied that Respond-
ent made this across-the-board proposal and I credit his
denial principally because Respondent's proposal made at
the following bargaining session, March 27, does not in-
clude such a provision. The Union agreed to add "sym-
pathy strike" to the existing no-strike language. Mallien
advanced the following reasons for proposing that the
pension proposal be abrogated: Employees were less
likely to spend the money because, if they invested in an
IRA fund, there would be penalties imposed if they
withdraw the money; the employees could put "the IRA
money" into annuity policies with an insurance company
and, in that way, "own" the insurance pension; and final-
ly, the employees are adults and should be allowed to
handle their own money. The Union further objected to
Respondent's proposed restrictive changes in the existing
funeral leave policy.
Respondent proposed that a 7.5-percent wage increase
be put into effect the next pay period, and, according to
12 In addition to having a demeanor far more credible than that of
Mallien, I find it impossible to believe that Bloomier, or any other self-
respecting union representative, would so easily give up all bargaining
rights during the term of a contract.
214
ATLAS METAL PARTS CO.
the minutes, the Union disagreed. The minutes do not
state the reason for disagreement but Bloomier credibly
testified that he said he wanted a complete agreement
before any wage increases were put into effect. The
company minutes further reflect that Bloomier stated
that he was opposed to a permanent arbitrator selected
from the Wisconsin Employment Relations Commission
(WERC), as Respondent had initially proposed, and that
Mallien pointed out that a permanent panel meant arbi-
tration cases could be handled faster and cheaper since
WERC does not charge a fee. Mallien added that if the
Union was opposed to using the WERC for arbitrators,
Respondent would offer to eliminate arbitration as a final
step of the grievance procedure and allow the right to
strike over all unresolved matters involving the meaning
and/or application of the contract. The Union did not
agree to this proposal either, and the matter was left
open. The Union further objected to a 45-day limit on an
arbitrator's decisions and the Company replied that it
would be willing to drop the 45-day requirement if the
Union were willing to agree to a 45-day liability limit on
the backpay that might be assessed against Respondent in
any arbitration. In his testimony, Bloomier agreed that
the minutes were essentially accurate as far as they went,
but he further credibly testified that he also objected to
the 20-day time limit on the typist for typing up tran-
scriptions of arbitrations as Respondent had initially pro-
posed.
Respondent's minutes further reflect that the Union
objected to dropping the 24-hour notice of shift changes
but would agree to the 1977 provision being renewed
with the provision that the 24-hour notice need not
apply in emergencies. The Union further objected to the
proposed unlimited right of Respondent to grant merit
wage increases and the Union further proposed retaining
the AIW pension fund. The minutes reflect that Mallien
responded that Respondent was opposed to the AIW
pension fund because: it had no voice in its changes; the
Employer would escape responsibility under ERISA'3 if
the pension fund provision were eliminated; and the Em-
ployer wanted to pay money directly to employees and
let them secure their own retirement program. No agree-
ments were reached.
Meeting 6, March 27, 1978
The parties met again in the presence of the Federal
mediator and the Union presented a proposal for a 2-year
contract which included the following provisions: Re-
spondent would withdraw all language proposals except
those which had previously been agreed to; dues deduc-
tions would be made only from checks of pay periods
for which the Employer had pay coming; economic
benefits for the first year would be: a wage increase of 8
percent; shift premium increase to 22 cents; sickness and
accident benefit of $91; insurance premiums to be con-
tributed in the same percentage as in the 1977 contract
(85 percent); and a pension contribution to the AIW fund
of 18 cents. For the second year there would be an 8-
percent wage increase, $97 a week sickness and accident
" Employee Retirement Income Security Act of 1974, 29 U.S.C. §
1001.
benefit and a pension contribution of 19 cents per hour
worked.
Respondent's representatives recessed and returned
with the following proposals for a complete contract:
"In addition to other items previously agreed," deletion
of the union shop clause and inclusion of the affirmative
no-union-shop provision quoted above; deletion of
checkoff, deletion of the definition of workday (8 hours)
and workweek (40 hours, Monday through Friday, inclu-
sive) from the section of the 1977 agreement which pro-
vided the basis for calculation of overtime; reassertion of
the provision regarding overtime was not for a guarantee
of overtime; reassertion of the arbitration clause in its ini-
tial proposal; reassertion of its restricted jury and funeral
leave pay; and reassertions of the demand that it have
the right to abolish the pension plan and institute an 18-
cent-per-hour direct payment to employees in lieu there-
of. Respondent proposed a 7.5-percent wage increase and
further demanded the right to treat the wages agreed
upon as minimums only. Respondent proposed a second
year to the contract which would include a 7-percent
wage increase, accident and sickness benefit increased to
$91 a week, and increased payment "for IRA" to 19
cents per hour.
The minutes recite that Mallien pointed out that two
employees who had quit had lost all benefits under the
AIW pension fund that if they had had IRA accounts
this would not have happened. Mallien further pointed
that the Company would "like" to have accounts for
those for whom pension has accrued "frozen" but the
minutes do not indicate if Mallien stated how this could
have been done.
The minutes further recite that Mallien declared that
the parties were at impasse, and, therefore, Respondent
would on the following Monday, April 3, 1978, institute
the following: a 7-1/2-percent wage increase, pension
payments would be made directly to the employees in-
stead of the fund, and the Employer will discontinue
checkoff and enforcement of the union-shop provisions
of the contract.
The minutes recite and Mallien testified that the Union
stated that 8-percent was its "bottom figure" on wages.
Bloomier credibly testified that the Union never ex-
pressed a "bottom figure" for wages.
Meeting 7, March 30, 1978
The parties met again at the Federal Mediation and
Conciliation Service office where Bloomier presented a
2-year proposal effective March 1. For the first year of
the contract the Union proposed a 3-percent increase to
day workers and 25 cents to be added to the incentive
workers' base rate and further proposed an accident and
sickness benefit of $91 a week and a 17-cent-per-hour
contribution to the AIW pension fund. For the second
year the Union proposed a 7-1/2-percent wage increase
for all day workers and a 25-cent increase in the base
rate of incentive workers. Finally, the Union proposed
that all language proposals of the Company be with-
drawn.
The Company withdrew to consider the Union's pro-
posal and returned with its "final offer" which was for a
215
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2-year contract effective April 3 providing for a 7-1/2-
percent wage increase the first year with a base wage in-
crease of 25 cents for the incentive workers. The Com-
pany further proposed a $91 accident and sickness bene-
fit and 18 cents per hour to employees "for their own in-
dividual retirement account or whatever they want to
use the money for." Respondent further proposed to
eliminate union shop and checkoff but did not propose
that the contract include the affirmative no-union-shop
language. For the second year, Respondent proposed a
7-1/2-percent wage increase for day workers; increase of
incentive workers' base rates by 25 cents, and "increase
payments for IRA to 19 cents an hour." Finally, Re-
spondent proposed "other changes as previously agreed."
The Union counterproposed a -year contract effective
March 1 agreeing to the 7-1/2-percent wage increase and
the 25-cent-per-hour incentive raise and $91 accident and
sickness benefit to which the parties had already agreed,
but it again proposed to retain the union shop and check-
off and the AIW pension fund agreement.
Mallien, on behalf of Respondent, declared that the
parties were at "mpasse" so that the Company was on
April 3 going to institute a 7-1/2-percent wage increase
as well as the $91 accident and sickness benefit. Mallien
further stated that as of April 3, there would be no ob-
servation of the union-shop or checkoff clause by Re-
spondent, but that it would hold off on abbrogating the
pension fund agreement until Respondent found out what
the effect of the termination would be on the employees.
Mallien did state that 18 cents per hour which it pro-
posed to pay to the employees in lieu of the AIW pen-
sion fund would be on all hours worked as opposed to a
limit of 40 hours per week as Respondent had originally
proposed.
Bloomier, according to the minutes, told the Company
that there would be a membership meeting on April 1,
and that the employees would probably strike. Mallien
testified that Bloomier did not expressly object to the im-
plementation of the wage increases and there is no evi-
dence that he did so except possibly for the reference to
the strike.
April 1, 1978
On Saturday, April 1, 1978, the membership of the
Charging Party met and Bloomier reviewed for them the
proposals of both sides. Bloomier told the employees that
he felt Respondent was bargaining in violation of its obli-
gations under the labor laws and that the employees
should strike because of Respondent's unfair labor prac-
tices over which he intended to file charges. A majority
of the employees voted to do so.
April 3, 1978
On this date, Mallien and Bloomier had a phone call,
subsequent to which Mallien wrote a letter to Bloomier
reciting the substance of the phone call as follows: (1)
the Company and the Union were in agreement that
there would be a 2-year contract with 7-1/2-percent
wage increases for each year and 25-cent-an- hour in-
crease in the base rate for incentive workers; (2) effective
date of the wage increases would be March 1; (3) the ac-
cident and sickness insurance coverage would be $91 a
week; (4) the pension plan remains "as is" and "both
sides will explore other plans and IRA"; (5) the parties
were still in disagreement about continuance of the
checkoff and union-shop provisions of the contract.
In his testimony Bloomier did not take issue with Mal-
lien's recitation of the parties' respective positions; there-
fore, it is undisputed that, as of April 3, the parties were
in agreement on other issues, to wit; retention of the
1977 contract's provisions on the AIW pension fund, se-
niority computation, strikebound work, superseniority for
bargaining committee members, and arbitration and no-
strike clauses. Similarly, there was, in effect, agreement
that there were to be none of the following provisions
which were not in the 1977 contract: affirmative no-
union-shop clause; right of Respondent to treat wage
rates as minimums; and Respondent's proposal for rules
of construction and waiver; and the various other regres-
sive provisions in Respondent's February 15 proposal
enumerated above.
Respondent effectuated the 7-1/2-percent wage in-
crease on April 3 and the $91 sickness and accident bene-
fit on May 1.
April 6, 1978
The employees began a strike on April 6 which lasted
until July II. As discussed infra, I find that the strike
was caused and prolonged by unfair labor practices of
Respondent.
Meeting 8, April 20, 1978
At the point of the eighth bargaining session the par-
ties were still apart only on union shop and checkoff. In
this session the Company reaffirmed its willingness to
agree to continue contributions to the AIW pension fund
(and explore others) and a 7-1/2-percent wage increase
effective March 1; and the Company further agreed to
reimburse strikers who had paid full premium for health
insurance during the strike; it further agreed that there
would be loss of seniority for the strikers; and it agreed
that all employees could be returned to their specific
jobs.
No agreement was made at this meeting because the
Union refused to agree to deletion of the checkoff and
union-shop clauses.
Meeting 9, May 1, 1978
The ninth bargaining session was a brief meeting in
which the parties again acknowledged that they were
then apart only on union security and checkoff. Mallien
again argued that Respondent was opposed to compel-
ling employees to belong to the Union although it had
no objection to their doing so. The minutes do not re-
flect any arguments made concerning checkoffs.
Meeting 10, May 16, 1978
The parties met again on this date and their respective
positions were reiterated. There was no movement on
either side. Mallien suggested that as part of a strike set-
tlement agreement, as well as the contract, a preferential
216
ATLAS METAL PARTS CO.
hiring agreement be worked out for the employees who
by that point had been replaced or for whom no work
was then immediately available. There was discussion of
this proposal but no indication in Respondent's minutes
of the respective positions.
Meeting II, June 6, 1978
At the 11th session the Union proposed to settle the
strike and the contract issues by the following proposals:
(1) All workers hired during the strike would come
under an agency-shop agreement but all other "new"
(presumably meaning those hired after its termination)
would be required to join the Union and all present
members would be required to retain their membership.
(2) The Union proposed to increase wages from 7-1/2
percent effective March 1, 1978, and 7-1/2 percent on
March 1, 1979, as Respondent had proposed March 30,
to 8-1/2 percent on March 1, 1978, and 8 percent on
March 1, 1979. (3) Finally, the Union proposed that the
contract be effective March 1, 1978, and expire on April
1, 1980.
Mallien replied that the Union was asking for more
than it had theretofore Mallien's notes recite that Bloo-
mier stated, "things had changed." Bloomier testified
that he pointed out as the justification for his raising the
economic demands that the Union was making a conses-
sion on union security and wanted something in return.
Meeting 12, June 30, 1978
The Union proposed at this meeting that the 7-1/2 per-
cent granted on April 2 be made retroactive to March 1,
1978, and that an additional half percent be effective on
the date the contract was effective; the Union further
proposed an 8 percent wage increase on March 1, 1979
as it proposed in the previous session. The Union pro-
posed increase of the accident and sickness benefit to
$95.14 Finally, and most importantly, the Union dropped
its proposal to continue union shop and proposed instead
a maintenance of membership clause, but the Union per-
sisted in its insistence upon continuation of the checkoff
provision.
Mallien replied to the Union's proposals by rejection
of the maintenance-of-membership proposal and asserted
the following demands: The inclusion of the affirmative
no-union-shop clause as originally proposed on February
15; elimination of checkoff and union shop; money for
"pension" payments were to be made directly to the em-
ployees and not to Allied Industrial Workers' pension
plan; the Union was to pay for all damages done during
the strike to the plant and the company property; inclu-
sion of its seniority proposals which would have the
effect of eliminating time spent striking as time accrued
for seniority purposes; only a I-year contract; a provision
that wage increases be considered minimums only and
that the employer had the right to pay in excess of the
wage increase stated in the contract; demanded inclusion
of its original strikebound work proposal; and inclusion
of its original rules of construction and waiver clauses.
14 The Union later told Mallien that this was a typographical error.
but this was false as demonstrated by the fact that the $95 accident and
sickness proposal reappears subsequently.
(It is to be noted that Mallien did not assert any demand
for revision of the 1977 arbitration clause at this point.)
As is recited by Mallien's minutes, and essentially ad-
mitted by Bloomier, Bloomier replied: "The Union's
answer is 'no' and 'you can go to hell."'
Meeting 13, August 4, 1978
At the 13th meeting the Union reverted to its proposal
that the wage increases would be 7-1/2 percent effective
March 1, 1978, and requested another 7-1/2 percent ef-
fective March 1979; it reasserted its demand for an in-
crease in the accident and sickness benefit to $95; it pro-
posed no break in seniority for strike time and that strike
time be counted for purposes of computing seniority for
purposes of figuring vacation eligibility: the Union again
proposed that maintenance of membership and checkoff
be included and that the contract expire on March 1,
1980; finally, the Union proposed that employees be
given the specific jobs that they held before the strike.
Respondent counterproposed a -year contract and all
other of its positions of June 30 were reasserted.
Meeting 14, August 29, 1978
At the 14th meeting the Union advanced two propos-
als which differed from its August 4 proposal only to the
extent that it agreed to drop its maintenance-of-member-
ship demand, but it demanded retention of the checkoff
clause. The Union further reverted to its $91 per week
accident and sickness benefit proposal.
Respondent restated its August 4 proposals including
its demand that checkoff be eliminated and offered a 3-1/
2 percent wage increase effective October 1, 1978. Mal-
lien proposed to begin paying at the beginning of the
quarter, October 1, direct payments of 17 cents per hour
to employees in lieu of AIW pension fund payments.
Mallien again added that the Company did not want to
be involved with ERISA as a justification for terminat-
ing its participation in the AIW pension fund. As the
minutes recite, Mallien said Respondent "would rather
take the money and give it directly to the people every 3
months."
Other matters were discussed at the meeting, including
union objections to the foremen doing work theretofore
assigned to unit employees. The charge in Case 30-CA-
4882 had been filed on August 3 alleging refusal of
"proper reinstatement" of the striking employees. The
charge expressly referred to subcontracting, but testimo-
ny disclosed that the Union had included the use of su-
pervisors working as a basis for that portion of the
charge.
Meeting 15, September 26, 1978
At the 15th meeting the Union dropped its demand for
a 2-year contract, agreeing to accept a -year contract
effective on September 30, 1979, but reasserted other po-
sitions taken on August 4 and August 29. Mallien replied
that Respondent had no change of positions.
217
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meeting 17, October 12, 1978
Although the parties went to the Federal Mediation
office for the 16th "meeting," they did not meet face to
face. The only significant matter reflected by the compa-
ny minutes is that on this date Mallien told the mediator,
in response to his inquiry, that Respondent had no
changes to make even if the Union dropped its demand
for checkoff.
October 2, 1978
On October 2, Respondent effectuated the 3-1/2-per-
cent increase proposed on August 29. It further effectu-
ated the proposal (reintroduced on June 30) to pay di-
rectly to employees, in lieu of contribution to the AIW
pension fund program, 18 cent per hour for a maximum
of 40 hours per week.
Meeting 17, October 12, 1978
At the 17th meeting the Union proposed that the 7-1/
2-percent wage increase effected April 3 be made retro-
active to March I, on top of the October 2 increase of 3-
1/2-percent. It continued to keep the same position taken
on September 26 regarding pension, seniority, vacation,
but withdrew its proposal regarding checkoff. It pro-
posed a 25-cent-per-hour maximum on wage increases
and proposed that employees not be required to perform
work of strikebound plants where the purchaser had
been a regular customer of the employer during the pre-
ceding 5 years. It counterproposed a waiver clause limit-
ed only to matters covered in the agreement.
Respondent took an extensive recess and returned with
the following proposals: The contract would be effective
from the date of signing for a period of I year only;
retain the wages in effect on that date, October 12,
making no provision for retroactivity; all wages were to
be considered "minimums"; direct payments in lieu of
AIW pension fund would continue. Respondent reassert-
ed its definition of seniority as time actually worked
except for specific examples including absences not in
excess of 2 days (for example, the strike such as the one
of that year); it reproposed elimination of all supersenior-
ity for bargaining committee members as in its original
proposal; and it demanded the affirmative no-union-shop
language. Regarding the proposal that employees not be
required to work on strikebound work except for estab-
lished customers, the Company replied; as related in the
posted minutes:
Section 9.05 This section limits the work that the
Company may do for its customers who are in-
volved in a strike. The Company has made a pro-
posal for modifying 9.05 so as to allow the Compa-
ny to perform work for established customers. The
Union wants to put five-year limit on "established
customers." The Company is unwilling to agree and
now counterproposes the deletion of Section 9.05 in
its entirety.
While Respondent had not theretofore made a propos-
al to modify the management-rights clause, in this session
of October 12, it proposed to amend the management-
rights clause of the previous contract to include an un-
limited right to determine whether "any of the work will
be subcontracted or performed by supervisors" and the
right to make work rules unilaterally. Respondent stated
as a reason for the proposals the fact that the Union had
filed charges about and otherwise protested Respondent's
use of supervisors to perform work and certain subcon-
tracting after the strike was terminated. Respondent re-
submitted its original proposal regarding waiver of all
bargaining rights during the term of the contract. (Re-
spondent's minutes recite that this proposal had been
agreed to by the Union on March 10, but Bloomier
denied having agreed to the proposal and I credit this
denial.) Finally, the minutes recite that the Union had
previously agreed to Respondent's arbitration proposal
and that Respondent demanded that these be included in
the new contract. I find that there had been no agree-
ment to the arbitration clauses as proposed; rather, I find
that the clauses had been withdrawn by Respondent on
March 30 when it submitted a proposal which did not in-
clude that provision.
The October 12 meeting was ended with no agreement
reached.
Meeting 18, November 27, 1978
At this session the Union resubmitted all of its October
12 proposals except the following: It increased from 5 to
10 of the number of years in which a purchaser could
have been a customer of Respondent, for whom the em-
ployees could be required to perform strikebound work.
It agreed to Respondent's demand for waiver of all bar-
gaining rights. In its submission of this date the Union
expressly declared the arbitration sections were open
denying that any agreement had been reached thereupon.
It is undisputed that before the strike there was a four-
step progressive discipline procedure for absences (oral
warning, written warning, 3-day "layoff" or suspension,
and discharge). It is further undisputed that some time
after the strike (although it is unclear as to just when)
Respondent eliminated the layoff step of this procedure
without prior notice to or consulation with the Union.
At the November 27 session the Union proposed that the
work rules in effect March I be retained and specifically
that the layoff step of the progressive absentee discipline
be retained. Mallien responded that Respondent wished
to establish the right to determine all work rules unilater-
ally, as specified in its management-rights proposal of
September 26, and specifically that it would not agree to
retain the layoff step of the absentee disciplinary proce-
dure.
Respondent's minutes of the October 12 meeting recite
that the Union would not agree to a 1-year contract
without another wage increase in March 1979; it would
agree to the affirmative no-union-shop clause only if
agreement was reached on all other matters; it was un-
willing to delete the strikebound work proposal; it was
unwilling to agree to the amended management-rights
clause and it proposed a 2-cent payment to be made for
"wives' annuity." In his testimony Bloomier took no ex-
ception to these recitations.
No agreement was reached in this session.
218
ATLAS METAL PARTS CO.
February 6, 1978
On this date Fenlon wrote Bloomier stating that Re-
spondent was considering improvements: a 4-percent
wage increase effective March 12; increasing shift differ-
ential from 20 cents per hour, "Pension (Money for Ira)"
increase from 17 cents an hour to 20 cents an hour
"based on a 40 hour week"; an increase in life insurance
from S4,000 to $10,000; payment of S7 toward the cost of
prescription safety glasses; and increased payment
toward safety shoes from $5 to $7 an hour for not more
than one pair per year. The Company stated that insur-
ance costs may have to be raised because of an increase
in prices, but that the Respondent would continue to pay
85 percent of the cost as it was then doing. The letter
concluded that the Company would bargain about the
matters upon request.
Meeting 19, February 13, 1978
Respondent's minutes of the final meeting in evidence
recite that it was called to discuss the February 6 letter
from Fenlon to Bloomier. The Union asked several ques-
tions about "IRA" proposals and agreed to the wage and
shift-differential increases. The Union stated that it still
wanted the AIW pension plan as opposed to direct
grants of money to employees.
The parties went over the respective positions; the
Union agreed to the deletion of all strikebound work
proposals, but no further movement was made.
At the end of this, the last, bargaining session the fol-
lowing matters remained unresolved: Whether the AIW
pension was going to be continued or was the money to
be paid in lieu thereof directly to the employees and
whether payments in lieu of pension, if any, would limit
to 40 hours per week; the effective date of the contract;
the definition of "seniority" and the effect it would have
on vacation benefits; whether any superseniority for bar-
gaining committee members continued; whether the con-
tract would contain Respondent's affirmative no-union-
shop language; the grievance and arbitration provisions;
whether the agreed-upon wage rates were to be only
minimums with the unlimited right of the Company to
pay in excess of those wages being established; and
whether Respondent would have an unlimited right to
establish work rules, subcontract work, and have super-
visors perform what theretofore had been work per-
formed only by bargaining employees. Finally, also unre-
solved was the issues of replacement of certain strikers
or the reinstatement of certain strikers.
March 12, 1979
On March 12, Respondent implemented all of the eco-
nomic changes which Fenlon had proposed to Bloomier
in his letter of February 6.
No further negotiating meetings were held.
2. Conclusions regarding negotiations
Section 8(a)(5) of the Act establishes a duty "to enter
into discussion with an open and fair mind, and a sincere
purpose to find a basis of agreement." N.L.R.B. v.
Herman Sausage Company, Inc., 275 F.2d 299, 231 (5th
Cir. 1960). As the Supreme Court stated in N.L.R.B. v.
Insurance Agents' International Union, AFL-CIO (Pruden-
tial Insurance Company of America], 361 U.S. 477, 485
(1960):
Collective bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor, while each maintains an attitude of
"take it or leave it"; it presupposes a desire to reach
ultimate agreement, to enter into a collective bar-
gaining contract.
This obligation does not compel either party to agree to
a proposal or make a consession. N.L.R.B. v. American
National Insurance Co., 343 U.S. 395 (1952); specifically,
it does not compel agreement on checkoff, N.L.R.B. v.
H. K. Porter Company, 397 U.S. 99 (1970), or other
union-security provisions. However, the Board may, and
does, examine the contents of the proposals put forth,
for, "if the Board is not to be blinded by empty talk and
by the mere surface motions of collective bargaining, it
must take some cognizance of the reasonableness of the
position taken by an employer in course of bargaining
negotiations." N.L.R.B. v. Reed & Prince Manufacturing
Company, 205 F.2d 131, 134 (Ist Cir. 1953), cert. denied
346 U.S. 887.
Pursuant to these principles I have considered the
course of the bargaining. Full consideration leads me to
conclude that Respondent has failed to fulfill its statutory
obligation and was, as the General Counsel alleges, en-
gaging in "surface" bargaining, or bargaining without in-
tention to reach agreement.
To decide whether an employer has approached and
remained at the bargaining table in good faith requires
determination of the existence or nonexistence of many
overlapping elements including the advancement of pre-
dictably unacceptable proposals, 15 the "reasonable-
ness"' 6 of the justifications advanced for proposals
which are questioned, the reintroduction of previously
abandoned proposals which or the reneging on agree-
ments previously reached, 7 and the advancement of
proposals which are regressive in nature relative to those
previously advanced. Each of these elements is present
here.
The proposals initially advanced by the Union were
almost entirely economic. Respondent listened to the
"laundry list" at the first session and then returned at the
second with a proposal that replied to the wage demand
(6.8 percent offered as against 20 percent demanded).
But, in addition, it advanced its initial proposal which
would have left only two of the sections of the prior
contract (and few of the then existing terms and condi-
tions of employment) unchanged, each radically for the
worse.
Is Continental Insurance Co. v. NLR.B., 495 F.2d 44 (2d Cir. 1974);
see also Seattle-First National Bank, 241 NLRB 753 (1979), and cases
cited therein.
'6 See N.LR.B. v. Reed d Prince Manufacturing Company, supra.
"7 San Antonio Machine & Supply Corp. v. N.LR.B., 363 F2d 633 (5th
Cir. 1966)
' NL.R.B. v. Pacific Grinding Wheel Co., 572 F.2d 1343 (9th Cir.
1978).
219
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To begin with it is to be noted that Respondent pro-
posed to eliminate the recitation that the parties desired a
"harmonious relationship." The only reason for elimina-
tion of such an innocuous statement was to serve notice
that an industrial relations war had been declared. With
this declaration Respondent advanced proposals, accept-
ance of which would have: reduced the size of the unit
(by permitting arbitrary classification of any five employ-
ees as excluded "students"); eliminated union shop and
checkoff (which had been extant for 20 and 10 years, re-
spectively); limited pay for injuries received on the em-
ployer's property; made overtime compulsory; redefined
"seniority" to penalize employees for strikes; reduced
recall rights; eliminated unlimited superseniority for the
employees who were negotiating for the Union (and had
grievance-handling duties); reduced leave-of-absence
rights; made arbitration more expensive, less effective
and nonbinding while enlarging the coverage of the no-
strike clause to include sympathy and unfair labor prac-
tice strikes; eliminated the existing pension fund; and
given Respondent the unfettered right to determine and
effectuate unilaterally any changes of terms and condi-
tions of employment which were not specifically men-
tioned, even if the matters had not been considered, or
even known of, during negotiations.
No article except those covering holidays, manage-
ment rights, and insurance was left unassaulted. Even for
these it must be noted that Respondent did not expressly
reply to the Union's proposals for another holiday and
another insurance carrier and it really proposed to en-
large the management rights by incorporation of various
provisions into other sections such as shift hours, com-
pulsory overtime, "normal" use of supervisors to per-
form bargaining unit work, grievance investigations, and
rights to unilaterally raise wage rates.
Reasons for specific proposals must be examined, espe-
cially those regarding union shop and checkoff since
they were the only ones outstanding before the April 6
strike.
In its brief, Respondent advances the following reasons
for its absolute insistence upon elimination of all union-
security provisions:
First, it is common knowledge (a) that industrial
union membership is decreasing; (b) that industrial
unions are losing elections more often; (c) that there
are many more decertifications being effected; (d)
that the public support for labor unions has marked-
ly decreased; and (e) that labor may have lost much
of its reputed national legislative clout.
Assuming the accuracy of these tactual assertions, each is
predicated upon employees' disaffection with unions, not
industrial warfare waged at the bargaining table. More-
over, these were not reasons advanced (for obvious rea-
sons) at the negotiating sessions herein.
At the bargaining sessions Respondent advanced as the
reason for elimination of checkoff that it did not wish to
be concerned with the Union's bookkeeping business; for
elimination of the union-shop clause it reasoned that it
believed that its employees should have freedom of
choice and that it simply did not wish to agree to be a
party to such provision any longer; for the affirmative
no-union-shop proposal it advanced no reason.
In regard to checkoff it is to be noted that Respondent
did deduct money for a "sunshine fund" and proposed to
deduct and transmit to banks the employees' "IRA
money." The discriminatory inconsistency belies any as-
sertion of good faith. Farmers Co-Operative Gin Associ-
ation, 161 NLRB 887 (1966).
The union-shop agreement had been in effect for 20
years and there is no evidence that there was any em-
ployee defection from, or even dissatisfaction with, the
Union, no attempt (pursuant to Section 9 of the Act) to
revoke the Union's authority to negotiate such a clause,
and no alleged abuse of the clause by the Union. (Indeed,
there was no evidence that it had never been enforced.)
Therefore, Respondent's position cannot be argued as
being oriented in any concern over the well-being or in-
terests of its own employees. Moreover, viewed along
with the simultaneous submission of the unreasoned, re-
dundant, and inflammatory affirmative no-union-shop
proposal, it must necessarily be concluded that the es-
pousal by Respondent of a newly found, abstract philo-
sophical opposition to union shop clauses is disingenous.
The only reason for elimination of the pension fund
Respondent advanced at bargaining was that the employ-
ees could put the money into individual retirement ac-
counts and it did not wish to be concerned with obliga-
tions under ERISA. As discussed infra, Fenlon admitted
telling employees Kennedy and Geske that employees
would have "ready cash that they would have credited
to their accounts." While possibly of immediate appeal to
younger employees such as Kennedy and Geske, the pro-
posal would devastate older employees of earned pen-
sions and, presumably, employees would worry more
about loss of their pension than Respondent would about
having to comply with ERISA.
Examining these additional proposals, and noting espe-
cially the reasons advanced initially or subsequently for
others as I have just done, it is clear that Respondent did
not approach the bargaining table with intent to find a
common ground upon which the parties could resolve
their differences. It approached the table with the intent
to create differences. It intended to create these differ-
ences by proposing to eliminate nearly every benefit
which the employees had secured by union representa-
tion and to reduce the Union itself to a vapid state.
While advancement of none of these proposals consti-
tutes a per se violation,19 they cumulatively demonstrate
that Respondent did not "approach the bargaining table
with an open mind and purpose to reach an agreement
consistent with the respective rights of the parties." L. L.
Majure Transport Company v. N.L.R.B., 198 F.2d 735,
739 (5th Cir. 1952); N.L.R.B. v. Herman's Sausage Co.,
supra.
Accordingly, I conclude that Respondent began its
course of bargaining in violation of Section 8(a)(5) of the
t9 Indeed, modification of the unlimited superseniority provision
would seem imperative in view of recent case law. See Dairylea Coopera-
tive, Inc., 219 NLRB 656, enfd. 531 F.2d 1162 (2d Cir. 1976). However, if
case law was Respondent's reason, or good-faith renegotiations of the
clause its objective, it is not reflected by the record herein.
220
ATLAS METAL PARTS CO.
Act when it advanced its initial proposal on February 15,
1978.
From the advancement of Respondent's initial propos-
al, and at all times thereafter the negotiations consisted
almost entirely of gamesmanship20 to see which, if any,
of the preexisting terms and conditions of employment
would be incorporated in any contract subsequently
signed.
On April 3, on the eve of the strike, Mallien did (tem-
porarily) abandon the last of his regressive proposals
except elimination of union shop and checkoff and did
agree to renew all other language of the contract. Spe-
cially, it is to be noted that Respondent agreed to reten-
tion of the AIW pension fund as well as various econom-
ic concessions including a 2-year contract with 7-1/2-
percent wage increase for each year and an increase in
accident and sickness coverage. However, Respondent
remained adamant in its demand that, union shop and
checkoff be discontinued, and the strike ensued.
On June 6, when the strike was in its second month,
the Union made the first movement on the union-security
issue. It proposed that strike replacements could come
under an agency-shop provision, but in advancing this
proposal it simultaneously asked for an increase of I per-
cent above what the parties had theretofore agreed to for
the first year of the contract (with retroactivity for the
period from March I to the April 6 strike date) and one-
half percent for the second. Further movement was
made by the Union on June 30 when it dropped its pro-
posal to continue the union-shop clause and proposed in-
stead a maintenance-of-membership clause.
For no reason other than apparent (correct) estimation
that the Union was about to capitulate on the two issues
which had theretofore divided the parties and further re-
alization that the meager wage difference between them
was insufficient to justify avoiding agreement, Mallien,
on June 30, reintroduced the proposals for an affirmative
no-union-shop-clause, elimination of the union pension
fund and institution of direct payments to the employees
of money in lieu thereof proposals which would have the
effect of eliminating time spent striking in figuring se-
niority, the proposals that wages agreed upon were to be
treated only as minimums, the strikebound work propos-
al its rules of contruction and waiver which would have
rendered arbitration nugatory (by eliminating considera-
tion of past practices), and waived all rights of the Union
to bargain during the term of the contract (including the
right to bargain upon matters which were not even
known at the time the contract was consumated); that is,
it reintroduced almost all of the previously withdrawn
provisions of its February 15 proposal.
Although the Union thereafter capitulated on mainte-
nance of membership (as well as union shop), on August
'o Any doubt that Respondent was engaged in an all-too-serious game
of catch-me-if-you-can is removed by the following quotation from its
brief wherein it comments upon one stage of the Union's collapse thusly:
It is interesting to note that had the Union reached this point in its
bargaining position on April 3 instead of October 12, the parties
would have had total agreement. See, GC-14. Unfortunately, man
has not as yet devised a way to squeeze toothpaste back into a tube.
This metaphor compels the conclusion that Respondent continues to con-
sider "bargaining" to be an exercise in artful dodging to avoid reaching a
contractual agreement with the Union.
29 and, further capitulated on checkoff on October 12,
Respondent's only response was to first reintroduce its
proposal for complete elimination of all superseniority
for bargaining committee members and reintroduction of
its arbitration proposal which, as noted, had the effect of
severely limiting an arbitrator's authority, increase the
expense of arbitration, limit all possible liability of Re-
spondent to 45 days' backpay and, most importantly,
remove the expression that arbitration decisions were
binding.
The technique of reintroducing proposals which had
been taken from the table is a practice which has been
roundly condemned by the Board and the courts.21 Re-
spondent cites O'Malley Lumber Company, 234 NLRB
1171 (1978), for the proposition that an employer is free
to reintroduce proposals upon a finding that "its econom-
ic power makes possible the negotiations of a more fa-
vorable contract." O'Malley Lumber does not give the
employer a license to reintroduce proposals previously
rejected and withdrawn any time after a strike. In
O'Malley the proposals advanced by the employer were
none of the kind advanced herein; that is, none were pre-
dictably unacceptable; there was no insistence on the
reintroduced proposals as there was in this case; and,
most importantly, Respondent herein did not reintroduce
all of the predictably unacceptable proposals after a dis-
covery of new economic strength; it reintroduced them
only after it appeared that agreement was near because
of the Union's capitulation on union shop and checkoff.
Another technique universally condemned by the
Board and the courts is regressive or retributive bargain-
ing.22 The best example of this technique is found in Re-
spondent's maneuver on struck work, Section 9.05 of the
1977 contract. When the parties were unable to agree on
how far the employer could go back to call a customer
"established," Respondent countered with elimination of
the existing proposal entirely and in its posting of the
minutes of October 12, told the employees that disagree-
ment was its reason for eliminating the provision. That
is, Respondent was retaliating, and it wanted the employ-
ees to know it was doing so. Further examples of regres-
sion lie in Respondents' March 15 proposal to eliminate
arbitration when the Union would not agree to the pro-
posed dilution of the clause. Retribution oriented in the
exercise of employees' statutory right to have charges
filed on their behalf is found in Respondent's Proposals,
and Subsequent insistence, on unlimited rights of subcon-
tracting and use of supervisors to perform unit work be-
cause the Union filed charges on those issues.2 3 Finally,
similarly retributive proposals are those insisted on by
Respondent to redefine seniority to penalize employees
for exercise of the statutory right to strike.2 4
Si See N.LR.B. v. San Antonio Machine Supply Corp.. supra, and
case cited therein.
aa See N.LR.B. v. Pacific Grinding Wheel Co., supra, also United
Brotherhood of Carpenters and Joiners of America. AFL-CIO, Local Union
No. 1780, 244 NLRB No. 26 (1979); and Preterm. Inc., 240 NLRB 654
(1970).
2S See Moarkle Manufacturing Company of San Antonio, 239 NLRB
1353 (1979).
24 See N.L.R.B. v. Erie Resistor Corporation, 373 U.S. 221 (1963).
221
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's course of conduct in these negotiations
was quite similar to the Employer's as outlined by the
Second Circuit in N.L.R.B. v. Herman Sausage Co., Inc.,
supra. There the employer demanded a contract equal to
that of a competitor rather than renew or improve upon
the one then expiring. When the Union produced the
competitor's contract the employer counterproposed re-
vision of the previous contract with 26 "take away"
modifications, including elimination of checkoff. The
Union gradually capitulated on certain items but "when
the Union met a demand, something new was added." 2 5
Here, Respondent proposed its "take away" items initial-
ly, then withdrew all but two of them (checkoff and
union shop) on March 30 and April 3; then, when the
Union began to capitulate on those two items Respond-
ent resubmitted and thereafter adamantly insisted upon
agreements to all previously withdrawn take away items
as well as continuing in its unyielding, unreasoned 2
demand that union shop and checkoff be eliminated.
There is no significant difference in the tactics utilized
by Respondent herein and the employer in Herman Sau-
sage except for the fact that for a time (from April 3 to
October 12) Respondent "in concession" feigned to agree
to withdraw its "take away" proposals and renew all
1977 contract language except for union shop and check-
off. Those "concessions" were more tactical than real as
they were consession only on its proposals which would
have eviscerated the prior contract and (directly or ulti-
mately) eliminated the Union. Moreover the "conces-
sions" were quickly withdrawn when the Union began
its capitulation on union shop and checkoff. As noted in
Herman Sausage "to make a concession here and there
could be the very means by which to conceal a purpose-
ful strategy to make bargaining futile or fail."2 7
Upon the entire record, I find and conclude that by its
course of conduct in negotiations Respondent failed to
bargain in good faith with the Union concerning the
terms and conditions of employment of employees in the
unit described above. While I find that a part of the
course conduct was Respondent's refusal to bargain con-
cerning union shop and checkoff, 2 8 this resolution of the
issue to no matter derogates from the admonition of the
Supreme Court in H. K. Porter Co. v. N.LR.B., to the
effect that the existing statutory scheme prohibits official
compulsion by the Board or the courts over the actual
terms of the collective-bargaining agreement.
I further find that the purpose of the Act requires a
directive to Respondent, upon request, to resume bar-
gaining with the Union in a manner consistent with the
requirement of Section 8(d) of the Act.
3. The unfair labor practice strike
It is undisputed that the employees voted to strike
after Bloomier informed them on April 1, that Respond-
ent had been bargaining in bad faith and that he intended
to file charges over the matter with the National Labor
26 275 F.2d at 233.
t" See discussion supra.
27 275 F.2d at 232.
a' Queen Mary Restaurants Corporation, 219 NLRB 776 (1975), enfd.
560 F.2d 403 (9th Cir. 1977); Pacific Grindine Wheel Co., Inc., supra: Mar-
len Cabinets, Inc., 243 NLRB 523 (1979).
Relations Board. It is true that when the employees
began the strike, the parties were apart only on the issues
of union shop and checkoff. However, since Respond-
ent's position on these two issues was a pivotal part2 9 of
its violative course of conduct, it must be concluded that
the strike, at least in part, was caused by Respondent's
conduct which violated Section 8(a)(5) and (1) of the
Act, and I so find and conclude.
The strike continued until July II, when the Union, by
letter of that date made an unconditional30 offer on
behalf of the striking employees to return to work.
C. Other Alleged Violations of Section 8(a)(5)
1. Individual bargaining
The complaint alleges that since on or about February
3, 1978, Respondent bypassed the Union and dealt direct-
ly with employees. General Counsel's contentions in this
regard rests on Respondent's posting of Mallien's minutes
of the bargaining session and one conversation Fenlon
had with two employees.
The minutes of the bargaining sessions were composed
by Mallien who dictated his notes into a portable record-
er immediately after each bargaining session. The dicta-
tion was then transcribed by a typist. These minutes,
after being reviewed by Mallien, were posted along with
any written proposals which were exchanged. While it is
true that the minutes failed fully to set forth the positions
and reasons for the positions taken by the Union, they
only occasionally misstated those positions and the mis-
statements are so sporadic that no conclusions can be
drawn that this was done by Mallien intentionally. The
minutes did make one reference to Bloomier's being un-
prepared to explain one of his proposals (request for
wage reviews) and they did blame the Union for delays
of minutes or hours while the Employer's representative
cooled their collective heels. However, in contrast to the
facts of the cases cited by the General Counsel in his
brief, there were no threats contained in the minutes and
no demand, or even urging, that the Union or any partic-
ular representative of the Union be repudiated. In fact,
minutes do not urge the employees to do anything.
Accordingly, I find no violation of Section 8(a)(5) in
Respondent's posting of its bargaining minutes.
The conversation alluded to by the General Counsel as
individual bargaining by Fenlon was conducted during a
series of "waste control" meetings. These meetings
which also had been conducted during prior years of
bargaining were used by Respondent to explain to em-
ployees the course of negotiations and positions it was
taking. Respondent also used the meetings to ask em-
ployees about their work and what would help them to
do it better, although there is no allegation that Respond-
ent solicited grievances in these meetings.
2a Indeed, as Fenlon testified, he never authorized Mallien to compro-
mise on these two issues.
30 Contrary to Respondent's contention, the fact that some individual
employees requested different shifts or jobs than Respondent offered
them on or after July 17, does not render the Union's July I 1, offer "con-
ditional."
222
ATLAS METAL PARTS CO.
The General Counsel placed in evidence the testimony
of employees Kenneth Geske and Ronald Kennedy who
attended the same meeting. Kennedy and Geske testified
that in addition to discussing various jobs, Fenlon stated
that he could not understand why employees would not
prefer direct payments which they could use for IRA
pension funds rather than being covered by the AIW
pension plan. They testified that Fenlon stated that
money would be credited to their account immediately
whereas under the AIW plan they would have to wait 5
years for any benefits to accrue to them. Fenlon ad-
mitted the remarks described by Kennedy and Geske and
further admitted telling the employees that Respondent's
"pension" proposal would give them "ready cash" that
they would have credited to an account of their own.
While Fenlon did explain to Geske and Kennedy the
virtues of Respondent's proposal, the conversation falls
far short of individual bargaining prohibited by Section
8(aX5). Fenlon offered the employees nothing, he asked
them to do nothing, and the statements can be consid-
ered bargaining in no sense of the word. Accordingly, I
shall recommend that this allegation of the complaint be
dismissed.
2. Unilateral actions
The complaint and amendments thereto allege the fol-
lowing admitted unilateral actions as independent viola-
tions of Section 8(a)(5):
The April 3, 1978, wage increase of 7-1/2 percent to
all employees:
The May 1, 1978, increase in accident and sickness
benefit from $84 to $91 per week.
The October 1, 1978, wage increase to all employees
of 3-1/2 percent.
The August 1978 work rule change, suspension of the
third step in the progressive disciplinary procedures for
absences; namely, 3-day layoffs.
The February 6, 1979, implementation of a general
wage increase of 4 percent.
The February 6, 1979, increase of shift differential
from 20 cents to 22 cents per hour.
The February 6, 1979, increase of life insurance cover-
age from $4,000 to $10,000.
The February 6, 1979, institution of payment for em-
ployees' safety glasses and increase in payment from $5
to $7 the allowance for safety shoes.
The complaint further alleges that on or about Octo-
ber 1, 1978, Respondent unilaterally instituted "a new re-
tirement program for employees" and also alleges that on
February 6, 1979, Respondent unilaterally increased its
payments to the "IRA program" from 17 cents to 22
cents.
Respondent replies to each of these allegations that the
actions were taken only after impasse was reached in
bargaining and therefore it had a lawful right to institute
its last proposal on each of the topics. As I have found
above, however, Respondent began its course of bargain-
ing in bad faith on February 15, 1978. Since a finding of
"impasse" requires antecedent good-faith bargaining, 3"
no impasse was reached. Rather, the actions were taken
sI Taft Broadcasting Co. WDAF AM-FM TV. 163 NLRB 475 (1967)
only after bargaining was stalemated by Respondent's
violative course of bargaining. Accordingly, I reject Re-
spondent's defense of "impasse." It is to be further noted
that there was no bargaining at all on the institution of
the elimination of the third step of the disciplinary proce-
dure. Respondent unilaterally eliminated the step and
then proposed, and insisted upon, contractual terms me-
morializing the fait accompli
With regard to the allegation that Respondent unilater-
ally instituted and thereafter increased its payments to a
new retirement program for employees, it is to be noted
that this allegation of the complaint is a mischaracteriza-
tion of what happened. Respondent did not institute a
new retirement program. As stated in its notice to em-
ployees dated September 27, Respondent took the fol-
lowing action:
At the end of each calendar quarter (beginning with
the quarter ending September 30, 1978), each regu-
lar and full-time employee who at those times has at
least I year of seniority and is then on the payroll,
will receive a separate check from the company,
computed on the basis of 18 cents per hour for up
to 40 hours per week for hours worked during the
then-ending calendar quarter. This is in lieu of com-
pany payments into the AIW Union pension plan. It
is hoped that the employees will utilize this addi-
tional money for an individual retirement account
("IRA") in accordance with federal tax law.
This is not the institution of a pension plan. It is an insti-
tution of a direct grant of moneys to employees with
only a stated hope that they take steps to secure their
own individual retirement account. Accordingly, it is
concluded that on October 1, 1978, Respondent abol-
ished the pension fund then existing for its employees
and it unilaterally granted to the employees a wage in-
crease of 18 cents per hour for up to 40 hours per week
worked and increased that payment to 22 cents per hour
on or about February 6, 1979, all in violation of Section
8(a)(5) of the Act. Crest Beverage Co., Inc., 231 NLRB
116 (1977), and cases cited therein.3 2
The complaint further alleges that Respondent at some
time during this strike unilaterally subcontracted a sub-
stantial amount of tool-and-die and punch-press work.
The complaint further alleges that upon the termination
of the strike Respondent unilaterally and discriminatorily
refused to return the subcontracted work to the unit.
Neither the General Counsel nor Charging Party argues
these allegations in their briefs and I find no violation in
Respondent's actions in this regard. The contracting out
during the strike was nothing more than the usual em-
ployer attempt to avert the economic consequences of a
strike and is under no theory unlawful. There was unre-
32 While the abolishment of the AIW pension fund program is not spe-
cifically alleged, the action is the immediate consequence of the imple-
mentation of a "new retirement" plan, as alleged in par. 12(e) of the com-
plaint, and therefore "clearly falls within the ambit of the complaint."
Party Cookies. Inc.. 237 NLRB 612 (1978). This is especially true where
the employer has professed a hope that IRA accounts will be started by
the employees with the new direct payments since, the Internal Revenue
Code such accounts are available only to individuals.
223
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
butted testimony that Respondent had always contracted
out some work in the tool-and-die department. While the
General Counsel placed in evidence records which dem-
onstrate payments made before, during, and after the
strike for work contracted out, there is no evidence as to
when the work was done or to what extent it differed in
nature from Respondent's past practice. Accordingly, I
find no violation in Respondent's failure to return work
to unit employees after the strike.
Finally, as unlawful unilateral action, the complaint al-
leges that in late March 1978, Respondent unilaterally
gave certain of its employees a bonus for high produc-
tion. The testimony in this regard is that in late March
1978, Fenlon made a bet with the punch-press supervi-
sors that neither shift could exceed 90-percent incentive
during any week in which the entire shift had a perfect
attendance record. During I week of March, the second-
shift punch-press operators did achieve this goal and
Fenlon paid off the supervisors. In addition, he granted
to all punch press operators on the second shift (and one
setup man who operated a punch-press for a few hours
that week) gift certificates worth $7 at a local restuarant,
apparently a chain-type steakhouse. No other employees
received such certificates and the grant has not been re-
peated.
Respondent's brief characterizes the grant of the trade
certificates as "spontaneous generosity." I agree. I find
that, assuming a theoretical violation to have occurred, it
would not effectuate the policies of the Act to issue re-
medial order upon this isolated action of Respondent.
Accordingly, I shall recommend that this allegation of
the complaint be dismissed.
3. Refusal to furnish information
The complaint alleges that since on or about August 4,
1978, Respondent has refused to furnish the Union infor-
mation concerning subcontracting. By letter of August 4,
from Bloomier to Fenlon, the Union requested, in writ-
ing, certain information which was furnished. Additional-
ly, as Bloomier's letter states: "The Union further re-
quests to know whether the company has contracted out
work, to whom and for how long. We are further re-
questing copies of any agreement of subcontracting."
Mallien replied by letter dated August 7, in which he
stated that he would furnish other information requested
by the Union but, "with respect to contracting out work,
the company has done this for many years."
The issue of subcontracting was vital not only to the
negotiations outlined above but also the replacement of
returning employees such as Behling discussed below.
Respondent makes no argument that the information is
not relevant and necessary to the performance of the
Union's duties as collective-bargaining representative. In
fact, Respondent does not address this allegation of the
complaint in its brief at all. Since it is not disputed that
Respondent did in fact refuse to furnish this information,
which I find was relevant and necessary to the Union's
statutory functions of collective-bargaining and griev-
ance handling, I find that Respondent's refusal to furnish
said information was violative of Section 8(a)(5) of the
Act. Specifically regarding information about subcon-
tracts allegedly affecting striking employees, see Wallace
Metal Products, Inc., 244 NLRB No. 10 (1979); see also
N.L.R.B. v. Acme Industrial Tool Co., 385 U.S. 432;
Markle Manufacturing Co. of San Antonio, 239 NLRB
1142 (1979).
D. Alleged Discrimination Against Strikers
I. John Carson
The complaint alleges that on or about July 17, and
August 11, Respondent refused to assign returning striker
John Carson to the second shift in order to discourage
employees from engaging in activities on behalf of the
Union in violation of Section 8(aX5) of the Act.3 3 Before
the strike Carson had been a punch-press operator and
punch setup man on the first shift. Carson had been a
past president of the Union and actively participated in
the strike from April 6 through July 11. Carson was not
reinstated on July 17 along with some other returning
strikers, but on August 11 he received a letter from
Fenlon instructing him to report to work as a utilityman-
janitor, suggesting that he take it and wait for a better
paying job when it became open. When Carson reported,
Teufel told him that there was no job open as a utility
man-janitor but he could have a punch-press operator's
job. Carson asked for a second-shift job as opposed to
the first-shift job which Teufel offered. When asked why
he requested a second-shift job, Carson replied that he
wanted to avoid personal animosity toward him from
Fenton. (If there was such animosity, evidence thereof
was not placed in the record.) Teufel denied Carson's re-
quest, but the following week Teufel recalled employee
Hoffemyer to work the second shift as a punch-press op-
erator without offering the shift to Carson.
In regard to the reason the employer refused to allow
Carson to transfer to the second shift, Company Negotia-
tor and Attorney James C. Mallien, who advised Re-
spondent in various reinstatement matters, testified:
"Well, we felt that we didn't have adequate supervision
to permit Carson to work on the second shift and there
was not much supervision and Carson had been involved
in some very serious threats. He told somebody he was
going to kill them in the course of the strike. And we
felt that we better have him on the first shift where we
could keep an eye on him."
Carson admitted that during the strike he said loudly
in the presence of an employee who was attempting to
cross the picket line that he did not care if such employ-
ees got their head bashed in. This statement was made in
the presence of several other employees.3 4 There is no
evidence that Respondent would have granted Carson's
request to transfer to second shift for any reason other
than his threat upon the life of the nonstriking employee.
Since the admitted threat by Carson was not activity
protected by the Act, no violation can be based on Re-
13 It is to be noted that this is not an allegation that Respondent un-
lawfully refused to reinstate Carson after unconditional offer to return to
work was made on his behalf. It is essentially an allegation that, after
Carson was offered reinstatement, he requested transfer to the second
shift and that request was denied because of discriminatory motivation.
'4 Over this incident Carson pleaded nol contendre to a Wisconsin
charge of threatening the life of another person.
224
ATLAS METAL PARTS CO.
spondent's actions in this regard. Accordingly, I shall
recommend this allegation of the complaint be dismissed.
2. Donald Behling
The complaint alleges that on or about July 17 and
July 26, Respondent discriminatorily refused to reinstate
returning striker Donald Behling to his former classifica-
tion in the tool-and-die department and further alleges
that on or about August 24, 1978, Respondent discrimin-
atorily refused, and continues to refuse, to consider Behl-
ing for a truckdriver's position, all in order to discourage
employees from engaging in activities on behalf of the
Union in violation of Section 8(a)(3).
Behling has been employed by Respondent for about
17 years. He started out as a tool-and-die maker appren-
tice and was promoted 4 years later to the position of
tool-and-die maker which was one of the highest paid
classifications in the bargaining unit. Behling was a union
signatory to the 1977 contract and was chairman of the
1978 bargaining committee and attended all but one of
the negotiations sessions for the 1978 contract. As tool-
and-die maker Behling "did everything from sharpening
dies, anything that was asked to do, we did in the tool
room . . . including sharpening dies, repairing dies,
building dies, this type of situation, and die grinding."
For all such work he was paid diemaker's rate. Two
other employees, Francis Carl Tom and Russel Haffel-
meyer, worked with Behling in the toolroom. On July
25, Behling was called back to work as a janitor-utility
man doing mostly sweeping and maintenance-type work.
Behling worked as such from July 28 until September 10,
when he was placed in the toolroom and classified as a
die grinder.
Sometime in late August, while Behling was working
as a janitor, he made an application for transfer to a job
as truckdriver for which there was then a vacancy.35
Behling was denied his request to transfer to the truck-
driver's job. At the September 8 negotiating session,
Mallien told the Union the denial was being made be-
cause Behling had constantly been "bad mouthing" the
Company and would not make a good "ambassador." At
the hearing the only "bad mouthing" ascribed to Behling
by Fenlon were statements he made during 1977 and
1978 negotiating meetings.
Respondent introduced no evidence of any type to ac-
tivity by Behling during the course of the negotiations
which could be considered unprotected by the Act.
Since his participation in negotiations was plainly pro-
tected by the Act, whether Respondent considered it
"bad mouthing" or not, the refusal to assign Behling the
truckdriving job based thereon is a violation of Section
8(a)3) and (1) of the Act and I so find and conclude. At
the hearing Fenlon feebly advanced further excuses for
not granting the truck driving job to Behling. First, he
contended that Respondent did not know whether Behl-
ing had the proper driver's license because his (17-year
old) application did not reflect it. However, Behling was
not asked if his application was currently, or ever was,
36 Behling was paid $5.28 per hour as "utility man-janitor"; with the 7-
1/2-percent increase of April 3, as a truckdriver, he would have made
$5.51 per hour.
accurate. Fenlon also stated that Behling was sometimes
absent on Mondays, but his record of absenteeism was
not introduced by Respondent and Fenlon conceded that
Behling was never disciplined for absences. Accordingly,
I find these belated excuses to be frivolous afterthoughts,
and not a defense to the allegation. Finally, at the hear-
ing, Fenlon advanced another reason for denying the
truckdriving job to Behling which deserves separate con-
sideration. Fenlon testified: "I'll add one thing, that his
actions on the picket line-we thought that he should be
supervised a little more closely rather than have him out
in the streets distributing our products." Picket line ac-
tivity is generally protected, and the duty of going for-
ward with evidence of conduct which would remove the
mantle of statutory protection is upon Respondent if,
upon such alleged misconduct, it bases its poststrike em-
ployment decisions. Rubin Brothers Footwear, Inc., 99
NLRB 610 (1952). Respondent adduced no evidence of
such misconduct, further fortifying my conclusion that
the refusal to grant Behling the truckdriving job was dis-
crimination in violation of Section 8(a)(3) and (1) of the
Act.
After being denied the truckdriving job, Behling con-
tinued working as utilityman-janitor until he was re-
turned to the toolroom on September 10. During the
strike Respondent contracted out all the tool-and-die
work which it could. Before the strike, Behling and em-
ployee Francis Carl Tom were classified as tool-and-die
makers and no employee was classified as a die grinder
although they regularly did die grinding work. They,
along with employee Russell Haffelmeyer (whose classi-
fication is not disclosed by the record) performed all the
toolroom work. The toolroom foreman, Gotlieb Kellen,
was contractually prohibited from performing either
grinding or diemaking work. After the strike, until Behl-
ing was returned to the tool-room on September 10, the
work was performed by employee Richard Quilan, who
was hired during the strike from his sweeping job on
September 10, he was reclassified as a die grinder and
paid the rate for that job which was less than that of die-
maker.3 6 Only when Behling was assigned specific die-
making tasks was he paid at the diemaker's rate. It was
Behling's undisputed testimony that before the strike he
was paid the diemaker's rate, whether he was diemaking
or die grinding.
As I have found infra, the strike from April 6 to July
11, was caused and prolonged by Respondent's unfair
labor practices. Therefore, Respondent had a duty to re-
instate Behling upon his unconditional application, dis-
charging if necessary any replacement who was hired
during the strike. Given the factor that the strike was
caused by unfair labor practices of Respondent, the only
defense left for the refusal to reinstate Behling is that his
job was lawfully abolished.
Respondent contends that the need for a full-time die-
maker was eliminated because during the strike it began
to use a new type of die which could not be fabricated in
'6 Under the expired contract, diemakers received 6.33 per hour; the
stated rate for the die grinder job, when it was filled, was $5.27 per hour.
As discussed infra, all subsequent raises in wages were on a percentage
basis, so the differences would remain constant.
225
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the shop, so the work necessarily had to be contracted
out. The evidence of this change in die use, in terms of
volume and nature, is solely Fenlon's bare testimony
which I find to be insufficient to meet Respondent's
burden of proving that the job had, in fact, been abol-
ished with introduction of a new die. Also, if the job was
abolished by subcontracting, the abolishment was accom-
plished without notice to or consultation with the Union
in violation of Section 8(a)(5) of the Act, and therefore
not done lawfully.
Since the record is insufficient to conclude that the job
was, in fact, abolished, the conclusion is left that all Re-
spondent did was delay reinstatement of Behling until
September 10, and then reduced him to the rate of a die
grinder from that of a diemaker, a difference of $1.06 per
hour. This is so because before the strike, Behling was
then the diemaker's rate, whether he was diemaking or
die grinding. Given the failure of Respondent to prove
the job was lawfully abolished the only differentiating
factor proven by this record is the strike and Behling's
participation in it, a basis prohibited by Section 8(a)(3)
and (1) of the Act.
In summary, I find and conclude that in violation of
Section 8(a)(3) and (1) of the Act, Respondent delayed
Behling's reinstatement from July 17 until September 10,
upon which latter date it unlawfully reduced Behling's
wages by $1.06 per hour, and further that during the
period in which Behling's reinstatement was being de-
layed, Respondent unlawfully refused to consider him
for the position of truckdriver. Therefore, Respondent
shall be ordered to increase Behling's wages to that of a
diemaker and make him whole for any loss he suffered
by reason of the delay3 7 in reinstatement and the subse-
quent reduction of his wage rate. Since the diemaker job
paid $1.13 more per hour than the truckdriving job, it is
unlikely that Behling would have preferred to keep the
truckdriving job over the diemaking job. However, there
may be desirable overtime involved or reasons personal
to Behling which could cause him to do so. Therefore, it
shall be ordered that Behling be given nondiscrimina-
tory3 8 consideration for the truckdriver's job and, if of-
fered, the option of choosing which job he prefers, and
he shall be given a reasonable amount of time to make
his selection.
3. Other strikers
The complaint alleges that "on or about July 17, 1978,
Respondent failed and refused to reemploy and reinstate
the striking employees to their former or substantially
equivalent positions of employment" after they made un-
conditional offers to return to work on July 11. Re-
spondent denied this paragraph of the complaint, but the
General Counsel put into evidence no testimony regard-
ing a refusal to reinstate any employee except Behling.
37 At minimum, it must be concluded that this delay was "undue" so
there is no purpose served in attempting a reasonable accommodation be-
tween the interests of the employee in returning to work as quickly as
possible and the employer's need to effectuate that return in an orderly
manner; accordingly, the 5-day grace period usually afforded employers
shall not apply. Newport News Shipbuilding & Dry Dock Company, 236
NLRB 1637 (1978).
3a Of course, if Behling is disqualified from the job solely because of
lawful considerations, Respondent is not required to offer it to him.
At the hearing the General Counsel indicated that he
thought that the issue of which other employees were
denied reinstatement should be left to the compliance
stage of this case. I disagree. The issue was drawn by the
pleadings. The alleged refusal to reinstate strikers was
the violation, not the remedy. The burden of proving the
allegation was upon the General Counsel, and I find that
he failed to do so. Accordingly, I shall recommend that
this allegation of the complaint be dismissed. 3 9
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE
UPON COMMERCE
The activities of Respondent, set forth in section III,
above, occurring in connection with the operations of
Respondent described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor pratices I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act. I shall order
Respondent to meet, upon request, with the Union and
bargain collectively concerning rates of pay, wages,
hours of employment, and other terms and conditions of
employment of the employees in the unit found appropri-
ate herein and, if agreement is reached, embody it in a
signed contract. It is further appropriate to order Re-
spondent to honor the terms of the expired contract until
impasse or a new contract is reached. United Contractors
Inc., et al., 244 NLRB No. 13 (1979). I shall further
order Respondent to make whole its employees for any
losses they may have incurred by its unilateral elimina-
tion of the AIW pension fund. (However, in no event are
the employees to be compelled to remit to Respondent
the moneys they have received in lieu of Respondent's
contribution to that pension fund.) Respondent shall be
further ordered to make all pension contributions as re-
quired by the contract that expired March 1, 1978, to the
extent that such contributions have not been made, and
to continue such contributions until Respondent negoti-
ates in good faith with the Union to a new contract or to
an impasse. Crest Beverage Co., supra. I shall further rec-
ommend that Respondent be required to make whole
employee Donald Behling for the discrimination against
him in the manner specified in section II, (D),(2), above
with interest computed thereon in the manner proscribed
in F. W. Woolworth Company, 90 NLRB 289 (1950), and
Florida Steel Corporation, 231 NLRB 651 (1977); see,
generally, Isis Plumbing & Heating Co., 138 NLRB 716
(1962). For the reasons set forth in M.F.A. Milling Com-
pany, 170 NLRB 1079 (1968), enfd. 463 F.2d 953 (D.C.
Cir. 1972), I shall recommend that Respondent reimburse
39 Compare MCC Pacific Valves, A Unir of Mark Controls Corporation,
244 NLRB No. 138 (1979), where the matter was left to the compliance
stage only because the General Counsel was erroneously precluded from
presenting evidence on the issue.
226
ATLAS METAL PARTS CO.
the employee-members of the union negotiating commit-
tee for the wages lost, if any, while attending past nego-
tiating sessions with interest thereon to be calculated in
the same manner as stated above. K-Mart Corporation,
242 NLRB 855 (1979).
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate for the purposes
of collective bargaining:
All employees of Respondent excluding executives,
supervisors, foremen, professional employees, office
clerical employees, draftsmen, all other employees
who have the right to hire and fire and discharge
and certain temporary employees not to exceed five
(5) in number, which are defined as summer student
help for a period not to exceed ninety (90) days.
4. At all times material herein the Union has been the
exclusive collective-bargaining representative of the em-
ployees in the unit described in paragraph 3 of this sec-
tion.
5. Since on or about February 15, 1978, and continuing
thereafter to date, Respondent has, by the following acts
and conduct, refused to bargain collectively in good faith
concerning wages, hours of employment, and other
terms and conditions of employment for the employees
in the unit described above in violation of Section 8(a)(5)
of the Act.
(a) Its overall conduct in negotiations beginning on
February 15, 1978.
(b) By unilateral changes in wages and other terms and
conditions of employment.
(c) By failing and refusing to furnish the Union with
information regarding subcontracting.
6. The strike which began on or about April 6, 1978,
was caused and prolonged by the unfair labor practices
of Respondent in its overall course of bargaining and its
unilateral actions taken before July 11, 1978.
7. By discriminating against employee Donald Behling,
by delaying his reinstatement, reducing his wage rate,
and refusing to consider him for transfer from the posi-
tion of janitor to that of truckdriver, Respondent has
violated Section 8(aX3) and (1) of the Act.
8. By threatening an employee with more onerous
working conditions if he filed a grievance, and by discri-
minatorily instructing employees not to talk about the
Union, Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaran-
teed by Section 7 of the Act, and thereby has engaged in
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
9. The above unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7, of the Act.
10. The General Counsel has proved no other allega-
tions of the complaint.
Upon the basis of the foregoing findings of fact and
conclusions of law and pursuant to Section 10(c) of the
National Labor Relations Act, as amended, I hereby
issue the following recommended:
ORDER40
The Respondent, Atlas Metal Parts Co., Inc., Wauke-
sha, Wisconsin, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with the Union,
upon request, as the exclusive representative of employ-
ees in the following appropriate bargaining unit:
All employees of Respondent excluding executives,
supervisors, foremen, professional employees, office
clerical employees, draftsmen, all other employees
who have the right to hire, and fire and discharge
and certain temporary employess not to exceed five
(5) in number, which are defined as summer student
help for a period not to exceed ninety (90) days.
(b) Discouraging membership in Local 806, Interna-
tional Union, Allied Industrial Workers of America,
AFL-CIO, or any other labor organization, by delaying
reinstatement of employees, reducing wages of employ-
ees, denying job opportunities to employees, or other-
wise discriminating against employees for engaging in a
protected strike or other lawful union or concerted ac-
tivities for the purposes of mutual aid and protection.
(c) Threatening employees with the assignment of
more onerous working conditions if they filed griev-
ances.
(d) Instructing employees not to talk about the Union
on Respondent's premises during working time in ab-
sence of a valid no-solicitation rule.
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of rights guaran-
teed them by Section 7 of the National Labor Relations
Act, as amended.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain in good faith with Local
806, International Union, Allied Industrial Workers of
America, AFL-CIO, as the exclusive bargaining repre-
sentative of the employees in the unit described above
and, if an understanding is reached, embody such under-
standing in a written, signed contract.
(b) Honor the provisions of the contract which expired
on March , 1978, until impasse or a new contract is
reached.
(c) Make whole the employees in the above-described
unit for any losses they may have incurred by reason of
Respondent's unilateral discontinuance of their pension
plan and pay all pension contributions as required by the
bargaining contract that expired on March 1, 1978, to the
'0 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recemmended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
227
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extent that such contributions have not been made, and
continue making such payments until Respondent negoti-
ates in good faith with the Union a new agreement or to
an impasse. However, in no event shall the employees be
required to remit monies paid to them in lieu of contribu-
tions to the pension plan Respondent discontinued un-
lawfully.
(d) Furnish to the above-named labor organization the
information requested concerning the use of subcontrac-
tors.
(e) Make whole, with interest, Donald Behling, for
losses he may have incurred by reason of the delay in re-
instating him from July 11 to September 10, 1978, the
subsequent reduction of his wage rate, and the refusal to
give him consideration for the job of truckdriver.
(f) Make whole each employee member of the negoti-
ating committee of the Union for earnings lost while at-
tending past bargaining sessions with interest thereupon
in the manner prescribed by Isis Plumbing & Heating Co.
and Florida Steel Corporation, supra.
(g) Post at its Waukesha, Wisconsin, facility copies of
the attached notice marked "Appendix." 4 ' Copies of said
4" In the event this Order is enforced by a Judgment of the United
States Court of Appeals, the words in the notice reading "Posted by
notice on forms furnished by the Regional Director for
Region 30, shall, after being duly signed by Respondent's
authorized representative, be posted immediately upon
receipt thereof and be maintained by it for 60 consecu-
tive days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or cov-
ered by any other material.
(h) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
228