Brown & Sharpe Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 28, 1990

299 N.L.R.B. 586 (N.L.R.B. 1990)

586 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Brown & Sharpe Manufacturing Company and Dis-
trict Lodge 64, International Association Of
Machinists & Aerospace Workers, AFL-CIO,
and its Local Lodges 883, 1088 and 1142 and
Local No. 119, International Federation of Pro-
fessional & Technical Engineers, AFL-CIO.
Cases 1-CA-19224, 1-CA-19690, 1-CA-
19958, 1-CA-20283, 1-CA-20291, 1-CA-
20304, 1-CA-20508, 1-CA-21560, and 1-CA-
19567
August 28, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On Apnl 5, 1989, Administrative Law Judge
Benjamin Schlesinger issued the attached decision
The General Counsel and the Charging Party filed
exceptions and supporting briefs The Respondent
filed a cross-exception and supporting argument
and a brief in support of the decision of the admin-
istrative law judge, in opposition to the exceptions
of the General Counsel and the Charging Party,
and in reply to the briefs in support of exceptions
The National Labor Relations Board has delegat-
ed its authonty in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions, cross-exception,
and briefs and has decided to affirm the judge's nil-
mgs, findings, and conclusions as modified and to
dismiss the complaint in its entirety
1 The judge found, and we agree for the reasons
stated below, that certain allegations of bad-faith
bargaining by the Respondent are barred by Sec-
tion 10(b) of the Act The allegations at issue are
that the Respondent engaged in surface bargaining
by insisting, without valid economic considerations,
on certain proposals as absolute, without which it
could not reach any agreement As more fully set
forth in section I of the judge's decision, the
charges involving these allegations initially were
dismissed by the Regional Director on the ground
that the investigation showed that the Respondent's
proposals were advanced because of lawful busi-
ness considerations The General Counsel affirmed
the Regional Director's dismissal on appeal Ap-
proximately 2 years later, the General Counsel re-
instated the charges in light of evidence discovered
in the investigation of a new unfair labor practice
charge concerning David Waterman, the Respond-
ent's former industrial relations director
The evidence consists of minutes and position
papers of the Respondent's steering committee,
dated from March to September 1981, concerning
preparations for negotiations for a new contract in
299 NLRB No 89
September 1981 1 The General Counsel argues that
these documents show that the Respondent's con-
tract proposals were not advanced for lawful busi-
ness reasons The General Counsel contends that
under the rationale of Ducane Heating Corp , 2 the
Respondent's failure in the initial investigation to
disclose documents which contradict its assertion
that its proposals were legitimate, as well as its in-
tentional nuscharactenzation of the proposals as ab-
solutes, amount to fraudulent concealment of oper-
ative facts warranting the tolling of the 10(b) limi-
tation period
We find no ment in this argument Having re-
viewed the evidence allegedly concealed, we find
that it does not sufficiently support the charge so
as to warrant extending the 10(b) limitation period
The Board similarly rejected the General Counsel's
attempt to reinstate a charge outside the 10(b)
period in Duff-Norton Go, 275 NLRB 646 (1985)
In that case, a charge alleging that the Respondent
discharged employee Pnvette in violation of Sec-
tion 8(a)(3) and (1) was dismissed Approximately
16 months later the General Counsel reinstated the
charge because the Respondent's former supervi-
sor, Tucker, gave an affidavit indicating that he
had set Pnvette up for discharge by tampering
with certain machines The Board, citing Ducane
Heating Corp, supra, noted that a dismissed charge
may be reinstated outside the 6-month limitation
period of Section 10(b) if a respondent fraudulently
conceals operative facts underlying the violation al-
leged However, the Board concluded that there
was nothing in the Duff-Norton case which war-
ranted extending the limitations proviso Reviewing
the evidence proffered by the General Counsel, the
Board found that even assuming Supervisor Tucker
tampered with the machines as alleged and that
this, in part caused the production of defective
parts, Tucker's action would have affected Pnvette
only indirectly because he inspected parts but did
not produce them Further, the Board found that
Tucker's tampering would not have explained all
of the defects or the delay in discovering defects
that the Respondent had cited as reasons for dis-
charging Pnvette In such circumstances, the
Board found there was an insufficient nexus be-
tween Tucker's asserted tampering and Pnvette's
performance of his inspection duties so as to con-
clude that the Respondent fraudulently concealed
the operative facts pertaining to Pnvette's dis-
charge In essence, the Board held that the evi-
dence must sufficiently support the charge before it
1 All dates are in 1981 unless otherwise indicated
2 273 NLRB 1389 (1985), enfd mem 785 F 2d 304 (4th Or 1986)
BROWN & SHARPE MFG CO 587
,
can be used as a basis for extending the 10(b)
period -
We make the same holding here After reviewing
the evidence the General Counsel seeks to intro-
duce, we find that even viewing the evidence in a
light most favorable to the General Counsel's posi-
tion, it does not support a finding that the Re-
spondent advanced proposals as genuine absolutes
when it actually did not consider the proposals to
be important to its operations The evidence, there-
fore, does not warrant the conclusion that the Re-
spondent concealed the operative facts pertaining
to its bargaining intentions either by mischaracter-
izmg its proposals as absolutes or by failing to dis-
close the steering committee minutes and position
papers
The General Counsel's argument focuses on the
Respondent's proposals concerning job preference3
and mandatory transfers which led to a stalemate
in negotiations The General Counsel points to one
document, dated June 1, entitled "Position
Paper/Job Preference" and to another dated May
29, entitled "Position Paper Transfers" According
to the steering committee minutes, these papers as
well as five other position papers were presented to
the committee at its June 1, 1981 meeting
The paper on job preference describes the con-
cept as having its roots in the incentive system
where the equipment an employee operated signifi-
cantly affected his earning ability The paper states
that when the incentive system was dropped in
1967, employees began to exercise job preference
in order to improve their working conditions, e g,
get assigned to less demanding equipment in clean
rooms The history section of the paper ends as fol-
lows
For the last three years the company and
Union have been constantly battling over job
preference with each party trying to erode the
other party's position The Company has at-
tempted to build favorable past practices
which would negate the job preference past
practice The Union has been in a challenge
position, grieving whenever they find the
Company not honoring job preference The
Company is looking for a grievance to take
forward to arbitration to destroy the concept
of job preference while the Union is looking
'Job preference or machine seniority gives an employee the right to
exercise semonty to obtain an assignment to a specific job or machine
which could not be operated by another employee The employee as-
signed to the machine can not be assigned to a different machine even
temporanly, unless the employee's assigned machine remains idle during
the transfer This exercise of seniority is called machine seniority in the
production and maintenance unit and job preference in the office clericals
wut The proposals and discussions in negotiations on this Issue for the
two units were substantially the same
for a grievance to arbitrate with which they
can win job preference
The paper goes on to state that a survey of manag-
ers in the Machine Tool Division and the Industrial
Products Division indicated that the managers "felt
that job preference had minimum cost impact but
was a general annoyance The absence of job pref-
erence would make the managers' job easier"
With regard to negotiating objectives, the paper
concludes "The Company should not negotiate
concermng job preference since failure at the nego-
tiations table would severely weaken the compa-
ny's case if we decided to arbitrate it" The paper
ends with the following summary
Job preference is an issue best addressed by
the establishment of favorable past practice
Shop management does not feel job preference
significantly affects the cost of operating the
shop This feeling is based on the knowledge
of shop managers that an employee that exer-
cises job preference and cannot perform the
job they have transferred to can be disciplined
and discharged
The minutes of the June 1, 1981 meeting indicate
that a final decision was not taken on whether job
preference should be raised in negotiations Under
the heading of job preference, the minutes state
"Both Bill Masser and Howard Geyer said they
might want to review this again even though it was
recommended that it be dropped "4
The position paper on transfers begins with the
following history
Managers have been able to use lack of
work, temporary and company request trans-
fers with very few problems Some managers
have used the company request transfer as a
way to avoid notification of the union for a
lack of work situation
The union has not held us to our contractual
obligations in regard to a five-day notice prior
to layoff if the employee was to be transferred
due to lack of work
After reviewing the contract language on transfers,
the paper ends with the following summary "It is
the opinion of this Committee that we can effec-
tively deal with the current contract language"
The minutes of the June 1, 1981 meeting again
indicate that a final decision was not taken on the
issue of transfers Under the heading "Transfers,"
the minutes state "The position paper stated that
* Masser was vice president and general manager of the Industrial
Products Division Geyer was vice president in charge of the Machine
Tool Division
588

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
managers could live with the language as it is, and,
again, Bill Masser and Howard Geyer expressed
concern that we still may want to change the lan-
guage"
Negotiations for the new contract began on Sep-
tember 4 The minutes of the September 10 steering
committee meeting contain another position paper
on job preference It states there has been a signifi-
cant increase in the Union's attempt to solidify job
preference Under the heading "Cost Benefit," the
paper states "Substantial psychological impact for
management More effective utilization of employ-
ees within labor grade resulting in a 3 percent to 5
percent productivity improvement (1 2 million sav-
ings—labor plus fnnge benefits )" The paper pre-
dicts that the Union's response will be "extremely
emotional" and evaluates the risk of proposing the
elimination of job preference as "High Poll for all
work assignments within labor grade If the Com-
pany does not prevail, job preference becomes a
fact" The paper ends with the following recom-
mended positions
Only address the question if we intend to
take a strike on the issue
Eliminate "transfer" and add "permanent"
Within an occupational code management
will make all machine assignments with its dis-
cretion
Strike issue
The September 10 minutes also contain a docu-
ment entitled "Recommended First Proposal" This
document identifies certain high-risk issues Con-
cerning job preference, it states
Job preference was the highest-risk item
identified by the Company Negotiating Com-
mittee If the Company proposes elimination of
job preference and does not succeed, the con-
cept of job preference will no longer be an
issue of past practice, but, in fact, an operating
condition in the plant, whereby employees
would be able to select their job—i e, machine
or permanent assignment, whenever an open-
ing occurred on their shift within labor grade
It is the Committee's assessment that if the
Union takes a case of job preference to arbitra-
tion, the company will lose the case If the
Company is going to propose elimination of
job preference, it is the committee's recom-
mendation that the Company be prepared for a
six-month stnke, plus a high economic settle-
ment The Company Negotiating Committee
makes the following recommendations on Job
Preference
a If the Company intends to stay in Rhode
Island for an extended period, the elimination
of job preference should be proposed, and the
Company should be willing to take a six-
month strike to achieve it with high econom-
ics
b If the Company proposes elimination of
job preference and it is not achievable during
these negotiations without a strike, and as a
result of that the Company decides that it will
move within a few years, the Company should
not be willing to take a strike over job prefer-
ence
The September 10 minutes also include a posi-
tion paper on "Company Request Transfers" This
paper identifies involuntary company request trans-
fers as a negotiating objective Under the heading
"Cost Benefit," it states "Would have to work the
jumor employee for temporary lack of work Utili-
zation of skills Because most of skills are grouped
there is a limited utility in mandatory transfers out-
side seniority groups Flexibility Improve Produc-
tivity" The paper states that the risk of proposing
mandatory transfers is "high" and recommends
four company positions
Company Request transfers will be mandato-
ry
Company Request transfers for 30 working
days per quarter for good business reason
Company Request transfers of 30 working
days per employee for the life of this agree-
ment
Mandatonly transfer a person for a specified
period of time to another seniority group with
the same occupational code
The document setting forth the recommended
first proposal also lists mandatory transfers as a
high-risk issue and states
Mandatory Transfers was identified as a high-
nsk proposal The Company Committee feels
that with the proper safeguards and a Union
recommendation, mandatory transfers would
be acceptable by the membership with a rea-
sonable economic package
The General Counsel contends that these docu-
ments show that in June 1981, job preference and
mandatory transfers were nomssues for the Re-
spondent, that job preference in fact had been re-
jected because of its minimum cost impact The
General Counsel argues that the documents there-
fore contradict the Respondent's assertions during
bargaining that job preference and mandatory
transfers were issues which for legitimate business
reasons it considered absolute
We find no merit in the General Counsel's posi-
tion Even assuming the existence and authenticity
BROWN & SHARPE MFG CO 589
of the steering committee position papers and min-
utes as an expression of the Respondent's bargain-
ing intentions, we find that these documents do not
support a finding that job preference and mandato-
ry transfers were nomssues for the Respondent
With respect to job preference, the June 1 posi-
tion paper does not describe it as an unimportant
matter Instead, the paper stresses that the Re-
spondent and the Union struggled over this issue
for 3 years, with the Respondent attempting to
build a practice which would negate the job prefer-
ence past practice and the Union challenging each
such attempt Nor does the paper indicate that the
recommendation to drop the issue from negotia-
tions was based on its minimum cost impact
Rather, the paper states that job preference should
not be negotiated because "failure at the negotia-
tions table would severely weaken the Company's
case if we decided to arbitrate it"
Although the June 1 paper refers to the insignifi-
cant cost effect of job preference, this is not cited
as a reason to drop the issue from negotiations
Rather, the paper reports that it is the opinion of
shop managers that although job preference is a
general annoyance which makes their jobs harder,
it did not significantly affect operating costs The
shop managers' feelings that the cost effect of job
preference was insignificant was attributed to their
knowledge that they could discipline and discharge
an employee who did not perform the job he had
gotten through job preference Higher level man-
agement's assessment of cost is not mentioned in
the paper
Finally, the minutes of the June 1 steering com-
mittee meeting indicate that contrary to the Gener-
al Counsel's assertion, the issue was not rejected in
June Rather, two higher level managers, Masser
and Geyer, were recorded as stating they might
want to review it again even though the position
paper recommended that it be dropped
A review of the September 5 position paper on
job preference and the September 10 recommended
final proposal does not show a shift in the Re-
spondent's evaluation of the importance of the
issue, but rather a shift in the strategy for dealing
with it Both the June and September positions ex-
press awareness of the danger of losing the issue in
negotiations The June paper, however, recom-
mends dropping job preference from negotiations,
while the September documents recommend raising
the issue but only if the Respondent intends to stay
for an extended period in Rhode Island and is will-
ing to take a 6-month strike with a high economic
settlement
The September documents also show a shift in
the cost assessment of job preference We fail to
see, however, how this shift indicates, as the Gen-
eral Counsel urges, that the Respondent found an
insignificant cost impact in June but inexplicably
found a significant impact in September As noted
above, the June position was based on shop manag-
ers' feelings that the cost was insignificant because
they would be able to discipline or discharge an
employee who was not performing the job he got
through job preference It was not presented as a
view held by all sections of management Nor were
the recommendations of the June paper accepted
by the full steering committee In contrast, the Sep-
tember paper is attributed to the full steering com-
mittee, including higher levels of management, and
asserts that the elimination of job preference would
have a "substantial psychological impact for man=
agement" and would result in a 3 to 5 percent pro-
ductivity improvement We see nothing mherently
contradictory between an opinion of lower level
management that the cost is insignificant because of
the ability to discipline and discharge employees,
and a higher level management opinion that the
cost is significant because of the psychological
impact on management and the utilization of em-
ployees within labor grade
Finally, even assuming the position in the June 1
paper contradicts the September position, the Gen-
eral Counsel's argument fails because the recom-
mendations of the June 1 paper were not adopted
at the June 1 meeting of the steering committee and
thus cannot be viewed as an expression of the Re-
spondent's position on job preference at that time
Our review of the documents on mandatory
transfers leads to the same conclusion The May 29
position paper on transfers states that managers
have had very few problems with them It is silent
on the question of cost impact As was the case
with job preference, the recommendation of the
paper to stay with the current contract language
on transfers was not accepted by the full steering
committee The minutes for the June 1 meeting
state that Masser and Geyer expressed concern that
the Company might want to change the language
The documents indicate, therefore, that there was
no determination in June that transfers were not an
issue for negotiations
The September position paper and recommended
final proposal are attributed to the full steering
committee The position paper states that mandato-
ry transfers would result in utilization of skills,
flexibility, and improved productivity The recom-
mended final proposal acknowledges that mandato-
ry transfers is a high-risk proposal but expresses the
view that with proper safeguards and a umon rec-
ommendation, the membership would accept it
with a reasonable economic package We see no in-
590 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
herent contradiction between this position and the
May 29 position which made no attempt to analyze
cost factors and merely stated that the managers
had few problems with transfers and could live
with the current contract language
Further, as was the case with job preference, we
find that even assuming the position of the May 29
paper contradicted the September position, the
General Counsel's case is not established because
the recommendation of the May 29 paper was not
adopted at the June 1 steering committee meeting
and thus cannot be viewed as an expression of the
Respondent's intentions concerning transfers at that
time
Accordingly, our review of the steering commit-
tee position papers and minutes does not support a
finding that the Respondent advanced proposals in
negotiations as absolutes based on valid business
considerations, when the Respondent had in fact
determined that the proposed items were not im-
portant and did not require change from the ex-
pired contract Because the documents do not sup-
port the allegation that the Respondent engaged in
surface bargaining, the Respondent's failure to dis-
close them, or its characterization of its proposals
as legitimate absolutes, could not amount to a
fraudulent concealment of the operative facts un-
derlying the alleged violation of Section 8(a)(5) 5
For these reasons, we agree with the judge's con-
clusion that the allegations of the complaint which
are based on the unfair labor practice charges in
Cases 1-CA-19224, 1-CA-19567, and 1-CA-19690
must be dismissed because the General Counsel has
not established that the 10(b) limitations period
should be extended
2 The judge further found, and we agree, that
the Respondent did not violate Section 8(a)(5) and
(1) of the Act by refusing to reveal to the Union
the names of current employees who were strike
replacements We disagree with his finding, howev-
er, that the Respondent violated Section 8(a)(5) by
withholding from the Union the names of strike re-
placements who had been terminated
With respect to the Union's request for the
names of current employees, the judge noted testi-
mony that there were two mass demonstrations in
which people were injured and property was dam-
aged, that a van exploded, and that the General
Counsel issued a complaint alleging 28 separate in-
cidents of conduct by the Union including threats
of bodily harm, rock throwing, arson, detonating
6 In light of this conclusion, we find It unnecessary to rely on the
judge's application of Dwane Heating Corp, supra Chairman Stephens
would rely both on the analysis under Duff-Norton Ca, 275 NLRB 646
(1985), set out above and on the judge's analysis under Dwane Heating
Corp, supra See his dissent in Kanaku Co, 293 NLRB 435, 437-441
(1989)
explosive devices, and assault 6 The judge also
noted that although most of the violence took
place at or near the Respondent's facilities, some
employees were harassed at their homes and some
were assaulted at places where they met to car-
pool The judge finally noted that at the hearing
the Union neither denied that these acts of violence
occurred nor denied that it was responsible for
them The judge found that in this setting, the Re-
spondent had a reasonable basis for believing that
the Union was fostering the violence He conclud-
ed that there was, therefore, a clear and present
danger that the Union would continue the violence
and there was a substantial reason for the Respond-
ent to withhold the names of current employees 7
We agree with this analysis
Regarding the refusal to give the names of termi-
nated strike replacements, however, the judge
found that because there was an attempt to disrupt
the Respondent's busmess by preventmg the Re-
spondent's employees from reportmg to work,
there would be little purpose for the Union to
commit violence against employees who were no
longer working for the Respondent and not report-
ing to work The judge concluded there was,
therefore, no clear and present danger that the
Union would take action against terminated em-
ployees and that the Respondent had no justifica-
tion for withholding their names
The Respondent argues, on cross-exception, that
the judge's conclusion concerning terminated em-
ployees is inconsistent with his conclusion concern-
ing current employees The Respondent stresses
that there was uncontradicted evidence of massive
violence at the plant and that employees were
being harassed and assaulted away from the plant
The Respondent argues that in these circumstances
there is no basis for the judge's finding that no
clear and present danger existed that the Union
would take action against replacements and line
crossers even after termination of employment We
find merit in this argument
The Union did not deny at the hearing that
widespread violence occurred at the plant or that
strike replacements or line crossers were harassed
and assaulted away from the plant Nor did it deny
responsibility for these acts With such evidence of
violence directed against strike replacements, oc-
curring not only at the picket line but at their
homes and other places away from the plant, we
6 The judge found that although the Informal settlement of the case in-
volving these allegations did not constitute a confession of liability, there
was nevertheless enough proof to convince the Regional Director to
Issue a complaint
7 Burkart Foam, 283 NLRB 351, 356 (1987), enfd 848 F 2d 825 (7th
Cir 1988), and Safehte Glass, 283 NLRB 929, 948-949 fn 26 (1987)
BROWN & SHARPE MFG CO 591
find that there is a clear and present danger that
violent action might be taken against those who re-
placed strikers regardless of whether they contin-
ued to work or had been terminated We, there-
fore, find that the Respondent had a substantial
reason for withholding the names of strike replace-
ments who had been terminated and did not violate
Section 8(a)(5) of the Act by refusing to reveal
those names to the Union
ORDER
The complaint is dismissed
Joseph F Griffin, Esq , for the General Counsel
William R Powers, Esq and Thomas C Keeney, Esq
(Powers, Karsch Kinder, Inc ), of Providence, Rhode
Island, for the Respondent
Raul L Lovett, Esq and Marc Gursky, Esq (Lovett, Mor-
gera, Schefnn & Gallogly), of Providence, Rhode
Island, for Charging Party Machinists
Richard A Skolnik, Esq , of Providence, Rhode Island,
for Charging Party Engineers
DECISION
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I THE UNFAIR LABOR PRACTICE CHARGES
BENJAMIN SCHLESINGER, Administrative Law Judge
On November 5, 1981, Charging Party District Lodge
64, International Association of Machinists & Aerospace
Workers, AFL-CIO (Union) filed an unfair labor prac-
tices charge m Case 1-CA-19224 allegmg that Respond-
ent Brown & Sharpe Manufacturing Company violated
Section 8(a)(1) and (5) of the National Labor Relations
Act, 29 U S C § 151 et seq , by refusing to bargain in
good faith with the Union The charge stated that "[O]n
or about September 4, 1981 and continuing since, [Re-
spondent] engaged in an anti-union animus campaign by
regressive bargaining, by refusing to discuss wages and
major economic benefits unless and until other proposals
calling for reductions in previously enjoyed seniority
benefits and union representation rights had been re-
solved [and Respondent] bargained in bad faith de-
signed to preclude acceptance of a collective bargaining
agreement between the parties, refused to negotiate on
[Respondent's] `absolutes,' circumvented the Union's
elected bargaining agents, [and] dealt directly with the
employees, for the purposes of undermining the Union's
majority status with its membership"
On December 28, 1981, the Acting Regional Director
of Region 1 refused to issue a complaint His dismissal
letter stated, in part, as follows
[W]ith respect to the allegation that [Respondent]
engaged in regressive bargaining, I conclude from
the investigation that there is no evidence that [Re-
spondent] made proposals for revisions in the job
transfers and reassignments for the purpose of frus-
trating or impeding the collective bargaining proc-
ess Rather, it appears from the investigation that al-
though these proposals may have been unpalatable
to the Union, they were nevertheless advanced by
[Respondent] only because of the lawful business
consideration of attempting to increase production
and achieve other lawful ends
With respect to the allegation that [Respondent] re-
fused to discuss its own proposals, or "absolutes,"
the evidence revealed in the course of the investiga-
tion does not support the allegation Rather, it ap-
pears from the investigation that those items were
freely and frequently discussed by the Union and
[Respondent] at various times in the negotiations
The Union appealed the dismissal to the Office of Ap-
peals, which on January 29, 1982, denied the appeal for
the reasons set forth by the Acting Regional Director
On October 18, 1981, the employees represented by
the Union went on strike, and employees represented by
Charging Party Local No 119, International Federation
of Professional 8c Technical Engineers, AFL-CIO (Engi-
neers) honored the Union's picket line On February 17,
1982, the Engineers filed an unfair labor practice charge
m Case 1-CA-19567 against Respondent alleging that on
or about February 15, 1982, Respondent locked out the
Engineers' members who reported to work, sought to re-
quire such members to apply unconditionally for rein-
statement to employment on an individual basis in viola-
tion of the parties' collective rights and collective-bar-
gaining agreement, and failed to negotiate in good faith
On April 8, 1982, the Regional Director dismissed this
charge, finding that Respondent could require the em-
ployees who honored the picket line to execute written
applications for reinstatement He also found that Re-
spondent could have permanently replaced them Implic-
it in that conclusion was a finding tht the Union's strike
was an economic stnke and that the Engineers' members
were striking in sympathy with economic strikers Thus,
Respondent did not lock them out or unlawfully deny
them reinstatement because it had replaced many of
them and there was no work available for the remainder
of them The Engineers filed no appeal from the Region-
al Director's refusal to issue a complaint
The Union filed a new unfair labor practice charge on
June 14, 1982, in Case 1-CA-19958 On July 29, 1982,
the Regional Director refused to issue a complaint re-
garding the allegation that Respondent violated Section
8(a)(1) and (5) of the Act by unilaterally implementing in
April and May 1982 various changes in working condi-
tions He found that negotiations for a renewal contract
were at impasse when Respondent announced and imple-
mented these changes, which were reasonably encom-
passed within its preimpasse proposals That was based in
part upon the findings in Cases 1-CA-19224 and 1-CA-
19690 that Respondent did not engage in bad-faith bar-
gaining The latter case involved another charge filed by
the Union on March 18, 1982, alleging that Respondent
violated Section 8(a)(1) and (5) of the Act by engaging
in dilatory tactics by refusing to meet and postponing
meetings, by engaging in regressive bargaining by repeat-
edly escalating its contractual demands, withdrawing and
then resubmitting proposals, and advising the Union after
592 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it had signified agreement to specific proposals that Re-
spondent was reconsidering its demands, by proposing
that employees hired since the stnke be given a different
seniority listing from its regular employees, by placing a
deadline on its latest offer, and by threatening to refuse
to meet with the Union The Acting Regional Director
dismissed this charge on April 28, the Union appealed,
and the Office of Appeals denied the appeal on June 16,
1982
The Regional Director also dismissed the allegation in
Case 1-CA-19958 that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to negotiate the
terms of the entire agreement and insisting on discussing
only the proposed subcontracting of work by Respond-
ent Respondent settled the remaining allegations of the
charge by informally agreeing that, in the absence of a
bona fide impasse, it would not make unilateral changes
of wages, hours, or working conditions provided for in
its expired collective-bargaining agreements with the
Union and agreed to rescind and give no further effect to
certain changes it made in May 1982 and thereafter The
Union appealed from that settlement and the Regional
Director's dismissal of the remaining allegations of the
charge
All these proceedings were reviewed after the Union
filed a new unfair labor practice charge on September
29, 1982, in Case 1-CA-20283 There, the Union charged
that Respondent had continued to refuse to bargain in
good faith, as follows
Since on or about July 30, 1982 the Union became
aware that prior to the commencement of negotia-
tions Mr David Waterman, former Industrial Rela-
tions Director for [Respondent], was terminated by
[Respondent] for refusing to carry out a bargaining
position designed to preclude reaching agreement
with the Union in collective bargaining, by means
inconsistent with and in violation of the National
Labor Relations Act
Almost a year later, on September 27, 1983, the Office
of Appeals sustained in part and denied in part the
Union's appeals, as follow
Based on newly-discovered evidence produced
during the supplemental investigation ordered m
Case No 1-CA-20283 on February 8, 1983, it was
concluded that the dismissals of Cases Nos 1-CA-
19224 and 1-CA 19690 should be reconsidered, sua
sponte Winer Motors, Inc , 265 NLRB No 185, Cali-
fornia Pacific Signs, Inc , 233 NLRB 450 After a full
consideration of all of the evidence presented in
Cases Nos 1-CA-19224, 19690, 19958, 20283, and
20508, it was concluded that [Respondent's] con-
duct during the collective bargaining negotiations
commencing in September 1981 raised Section
8(a)(1) and (5) issues warranting Board consider-
ation based on record testimony developed at a
hearing before an Administrative Law Judge Inas-
much as there is reasonable cause to believe that the
strike which commenced on October 18, 1981 was
an unfair labor practice strike, ab num, it was
deemed unnecessary to determine whether the
unfair labor practices alleged in Case No 1-CA-
19958 converted the stnke at that time In view of
our determination that the stnke was an unfair labor
practice stnke, the settlement in Case No 1-CA-
19958 was deemed inadequate and the Union's
appeal thereof is sustained
The broad complaint in this proceeding followed on
December 7, 1983 1
II THE PARTIES, JURISDICTION
Respondent's answer admits, and I find, that it is and
has been at all times material herein a Delaware corpora-
tion with it principal office and place of business at Pre-
cision Park, Town of North Kmgstown, County of
Washington, and State of Rhode Island (North King-
stown facility), where it engages, through as two divi-
sions-machme tools and industrial products-m the
manufacture, sale, and distribution of precision machine
tools and related products Respondent also, until De-
cember 22, 1982, maintained another division at Grey-
stone, in the Town of North Providence, County of
Providence, and State of Rhode Island (Greystone facili-
ty) In its operations, Respondent has caused large quan-
tities of metals, steel, tools, and instruments unsed by it
in the manufacture of precision machine tools to be pur-
chased and transported in interstate commerce from and
through various States of the United States other than
Rhode Island and has caused substantial quantities of
precision machine tools to be sold and transported from
its facilities in interstate commerce During 1981 and
1982 Respondent sold and shipped goods valued in
excess of $50,00 directly to points outside Rhode Island
I conclude, as Respondent admits, that it is an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
Since in or about 1947, Local Lodges 1088 and 1142 of
the Union have been and are, by virtue of Section 9(a) of
Act, the certified exclusive collective-bargaining repre-
sentative of the following described unit for collective
bargaining about rates of pay, wages, hours of employ-
ment, and other conditions of employment, which unit is
appropriate for the purposes of collective bargaining
withm the meaning of Section 9(b) of the Act
All production and maintenance employees of Re-
spondent employed at its North Kingstown and
Greystone facilities, exclusive of clerical employees,
employees represented by the Engineers, guards and
all supervisors as defined in the Act
I The other relevant docket entries are as follows The unfair labor
practice charge in Case 1-CA-20291 was filed on September 30, 1982,
the charge in Case 1-CA 20291 was filed an September 30, 1982, the
charge in Case I-CA-20304 was filed by Local Lodges 1142, 1088, and
883 of the Union on October 4, 1982, and the charges in Cases 1-CA-
20508 and 1-CA-21560 were filed by the Union on December 8, 1982,
and November 10, 1983, respectively The complaint was amended by
the Acting Regional Director for Region 1 on December 29, 1983, and
was later amended at the hearing, which commenced on January 30,
1984, was held in Providence, Rhode Island, and various dates in 1984-
1985 and 1987-1988, and concluded on January 19, 1988
BROWN & SHARPE MFG CO 593
Since in or about 1953, Local Lodge 833 of the Union
has been and is, by virtue of Section 9(a) of the Act, the
certified exclusive collective-bargaining representative of
the following described unit for collective bargaining
about rates of pay, wages, hours of employment, and
other conditions of employment, which unit is appropri-
ate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act
All clerical employees of Respondent employed at
its North Kingstown and Greystone facilities, exclu-
sive of production and maintenance employees, em-
ployees represented by the Engineers, guards and
all supervisors as defined in section 2(11) of the
Act
Respondent has recognized the respective Local
Lodges in successive and separate collective-bargaining
agreements, one series for its production and mainte-
nance unit, another for its clerical employees, the most
recent agreements being effective by their terms from
October 18, 1979, to October 18, 1981, and all agree-
ments having been negotiated by the Umon on behalf of
and as agent for its Local Lodges I conclude, as Re-
spondent admits, that the Union, its Local Lodges 883,
1088, and 1142, and the Engineers are labor organiza-
tions within the meaning of Section 2(5) of the Act
III THE ALLEGED UNFAIR LABOR PRACTICES
A Preliminary Matters, Section 10(6)
On July 29, 1981, the Umon on behalf of its Local
Lodges requested bargaining for new agreements, and
bargaining began on September 4, 1981, and continued
until October 18, 1983 From the content of the unfair
labor practice charges quoted above, one need not divine
that bargaining was very difficult However, before even
arnvmg at the point of possibly boring the reader with
who said what at each of the bargaining sessions that are
involved in this proceeding, I must answer the General
Counsel's and the Union's briefs which attack Respond-
ent's bargaining strategies from their inception
At the opening of the hearing, Respondent moved to
dismiss numerous paragraphs of the consolidated com-
plaint based on Section 10(b) of the Act, which provides
in relevant part
[N]o complaint shall issue based upon any unfair
labor practice occurring more than six months prior
to the filing of the charge with the Board and the
service of a copy thereof upon the person against
whom such charge is made
Respondent argued that then General Counsel William
Lubbers had no authority 2 years later to reinstate the
charges, because the early unfair labor practice charges
had been dismissed, no appeal had been taken by the En-
gineers, and the dismissals of .the Union's charges had
been appealed to and denied by the Office of Appeals
However, I found that he did have authority California
Pacific Signs, 233 NLRB 450 (1977), upon which he
relied, rejected a respondent's contention that Section
10(b) barred the reinstatement of a dismissed charge
based on newly discovered evidence The Board stated,
at 451
Section 10(b) of the Act provides that no com-
plaint shall issue based on any unfair labor practice
occurring more than 6 months prior to the filing of
a charge with the Board This section, however, re-
lates only to the actual filing of charges and, once a
charge has been timely filed, the control over, and
disposition of, that charge is vested exclusively with
the General Counsel pursuant to Section 3(d) of the
Act The General Counsel thus has virtually unlim-
ited discretion to proceed on such timely filed
charges as he deems fit 4 and, in the absence of a
showing of abuse of the discretion, the Board will
not interfere with General Counsel's exercise there-
of
4 See Silver Bakery Inc of Newton, 150 NLRB 421 (1964)
Winer Motors, 265 NLRB 1457 (1982), which expressly
overruled Silver Bakery, also appeared to support the
General Counsel's authority There, the Board held that
the Regional Director could not revoke her earlier ap-
proval of the withdrawal of a timely filed charge after
the 10(b) 6-month period had expired, but stated, at
1457-1459
[W]e are guided by the Board's longstanding recog-
nition of the proviso in Section 10(b) as being a 6-
month statute of limitations Where such a clear
limitations period has been created by Congress, we
find that the Board exceeds its authority to allow
the General Counsel to ignore such a limitations
period on equitable grounds In reaching this con-
clusion, we agree with the First Circuit's assessment
when it denied enforcement of our Order in Silver
Bakery [351 F 2d 37 (1965)] that reinstatement of
charges beyond the 10(b) period based on equitable
considerations was created out of whole cloth and
that
From the standpomt of respondents, for whom
Section 10(b) was enacted, we can think of no
good reason why the mere filing of a charge
which is withdrawn with the consent of the
Board, so that no proceedmgs are pending,
should leave in the Board a roving discretion to
determine that so-called equities warrant the rein-
stitution of the proceedings without limit of time
The fact that the Board may feel that its discre-
tion is benignly exercised cannot answer the clear
purpose of a statute of limitations [351 F 2d at
39]
[W]here a respondent fraudulently conceals from a
charging party the operative facts underlying a vio-
lation of the Act, the limitations period does not
begin to run until the charging party knows or
should have known of such operative facts 12 Such
a rule, however, clearly had no application to the
case before us where the alleged discnmmatees
were not ignorant of the alleged violation within
594 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the limitations period Further, we take issue with
our dissenting colleagues' position that our decision
here unduly rewards respondents for deceiving the
General Counsel concerning the motive for or
nature of its misconduct It is a rare case where a
respondent agreed with a charging party's assess-
ment that respondent engaged in conduct violative
of the Act Rather, in most cases, respondent denies
the misconduct alleged or proffers an explanation,
and the General Counsel must decide if the evi-
dence is sufficient to sustain the charging party's
position If so, the General Counsel issues a com-
plaint, if not, he dismisses the charge In other
words, the denial of the misconduct by the respond-
ent should not be and is not dispositive of the
charge
12 Local 825. International Union of Operating Engineers AFL-
CIO (Building Contractors Association of New Jersey), 228 NLRB
276 (1977), cited in the dissent, is a case which turned on the
Board's interpretation of the facts, the majority finding that the
charging party withdrew his charge in reliance on respondent's
false statements concerning its luring hall rules, and the dissent
finding that there was no fraud Involved and thus no reason to toll
the limitations period This case clearly has no application or rel-
evance to the situation here In Local 825, respondent allegedly
gave a false explanation to the charging party as to the reason for
his nonreferral which induced him to withdraw his charge Here,
the Board investigated the charge, determined that it was lacking
in merit, and solicited a withdrawal That the Respondent did not
confess to unfair labor practices during the original investigation
but, rather, denied the allegations or profferred an economic de-
fense, does not constitute the type of "fraud" warranting reinstitu-
tion of a charge in spite of the 6-month limitation of Sec 10(b)
NLRB v Don Burgess Construction Corporation. d/b/a Burgess
Construction, Builders and Donald Burgess and Verlon Hendrix.
d/b/a V & B, 569 F 2d 378 (9th CV 1979), enfg 227 NLRB 765
(1977), Pullman Building Company, 251 NLRB 1048 (1980), and
Plumbers and Steamfitters Local No 4a United Association of Jour-
neymen and Apprentices of Plumbers and Pipelining Industry of the
United States and Canada, AFL-CIO (Mechanical Contractors Asso-
ciation of Washington), 242 NLRB 1157 (1979), cited by our col-
leagues, are similarly distinguishable In Don Burgess, the charging
party union was not aware that Respondent was even employing
carpenters, let alone nonunion ones In Pullman, the Charging
Party union was unaware that respondent was operating a non-
union jobsite In Plumbers and Steamjitters Local No 40, the charg-
ing party was unaware that his name had been removed from a
hiring hall list and the Administrative Law judge noted that, in
such cases, "the six month limitation period does not begin to run
until the unlawful activity has become known to the
charging party NLRB v Allied Products Corporation Richard
Brothers Division, 548 F 2d 644, 650 (6th Cu. 1977) " 242 NLRB at
1161 [Emphasis supplied ] Thus, in all these cases, the 10(b) period
was tolled because the charging party did not have reason to be-
lieve that an unfair labor practice had been committed and, there-
fore, had not filed a charge Our colleagues appear to mistakenly
equate these situations with those in which, as here, the General
Counsel has belatedly determined that a complaint should Issue on
an already-withdrawn charge
Nor does a denial of allegations previously made constitute
fraudulent concealment See Dayco Corporation v Firestone Tire &
Rubber Co, 386 F Supp 546, 549 (DC Ohio 1974), affd sub
nom Dayco Corporation v Goodyear Tire & Rubber Company, 523
F 2d 389 (6th Ce. 1975) Yet as pointed out by the First Circuit in
NLRB v Silver Bakery of Newton, 351 F 2d at 39, our colleagues
have "created out of whole cloth" an ill-defined standard that
would permit the revival of long-deceased charges whenever alle-
gations of equitable considerations are raised
Because the Union's and the Engineers' charges were
timely filed and had not been withdrawn, and because
the Waterman charge allegedly contained newly discov-
ered evidence, I denied Respondent's 10(b) motion
There was a second part of its motion to dismiss those
allegations on the equitable ground that the General
Counsel's earlier dismissals had led Respondent to
assume that the strike was economic As a result, Re-
spondent claimed that it then hired permanent replace-
ments for its economic strikers Now, Respondent con-
tended, with the change of the General Counsel's posi-
tion 2 years later, Respondent might be liable for a most
substantial liability to both the permanent replacements
and the stnkers if I found that the strike was an unfair
labor practice strike I reserved ruling on this part of Re-
spondent's motion Furthermore, after review of the par-
ties' briefs, I withdrew my prior denial of Respondent's
10(b) motion Instead, I reserved decision on it until I
had heard the entire case, so that I could assess whether
the General Counsel had, in the words of California Pa-
cific Signs, abused his discretion by reinstating the previ-
ously dismissed charges
Respondent filed a special appeal from my ruling, and
the Board stayed the hearing in this proceeding Almost
a year later, the Board, acting on mistaken assumption
that I had demed Respondent's motion, reversed my de-
cision and remanded the same to me with instructions to
reconsider it in light of its then 2-week-old decision in
Ducane Heating Corp, 273 NLRB 1389 (1985), enfd
mem 785 F 2d 304 (4th Or 1986), which severely limit-
ed Cahfornia Pacific Signs and much of the rational of
Winer Motors This hearing reconvened to receive testi-
mony solely on the issues raised by Ducane Heating
Ducane Heating involved the revocation of a prior dis-
missal of a charge based on evidence newly discovered
after the 10(b) period had expired The Board found no
substantial distinction between a withdrawn unfair labor
practice charge, as in Winer Motors, and one that had
been dismissed, and refused to permit the reinstatement
of any charge "outside the 6-month limitations period of
Section 10(b) absent special circumstances in which a re-
spondent fraudulently conceals the operative facts under-
lying the alleged violation Where there is a fraudulent
concealment, the limitations period begins to run when
the charging party knows or should have known of the
concealed facts" 273 NLRB at 1390 I now restate and
reaffirm the Order I issued
1 The earlier dismissal of portions of the complaint
In preparation for the collective-bargaining negotia-
tions in 1981, Respondent formed a steering committee
which examined various provisions of the then subsisting
collective-bargaining agreements, assessed their impor-
tance to the parties, decided whether Respondent should
propose changes, and predicted what would be the
Union's reaction to those changes Subcommittees pre-
pared position papers and the steering committee held
meetings and kept minutes Central to the complaint's al-
legation of surface bargaining was that, among other
things, Respondent insisted that certain "absolutes"—
proposals which dealt with the issues of job preference
and machine seniority and mandatory transfers of em-
ployees—had to be contained in any new agreement
BROWN & SHARPE MFG CO 595
It was only after the Union filed the Waterman charge
(Case 1-CA-20283) and Waterman complied with an in-
vestigtory subpoena, that the General Counsel developed
a new theory Respondent's management personnel had
examined and analyzed these proposals in preparation for
collective bargaining and initially deemed them to be in-
significant to Respondent's operation of its business
However, they also opined that the Union would find
the proposals so touchy that, if Respondent failed to
withdraw them, the Union would strike, a result which,
both the General Counsel and the Union contend, Re-
spondent desired Thus, Respondent deviously induced
the Umon to strike over contractual provisions which
were meaningless to Respondent but were of greatest im-
portance to the Umon—all to rid itself of the Union 2
The alleged proof, the "smoking gun," consisted of the
steering committee's minutes and position papers These
were, m the words of the General Counsel's letter, the
"newly discovered evidence"
If that characterization was correct, Ducane Heating
dictated that I grant Respondent's 10(b) motion, because
newly discovered evidence was no longer legally suffi-
cient to justify reconsideration of closed proceedings and
dismissed charges The General Counsel and the Union,
therefore, had to make an argument different from the
one relied upon by General Counsel Lubbers Their ar-
gument, tailored to Ducane Heating, was that Respond-
ent fraudulently concealed the existence of the docu-
ments during the course of the Region's mvestigation of
the early unfair labor practice charges I held that a re-
spondent, including Respondent herein, has no obligation
to cooperate with the General Counsel in the investiga-
tion of an unfair labor practice charge It may supply no
information whatsoever, if it so desires It may merely
state its position, without providing sworn statements or
witnesses who will be mterrogated under oath, or it may
choose to cooperate and provide requested witnesses to
answer all questions But, as the Board noted in Winer
Motors, mvanably a respondent will deny the commission
of any unfair labor practice, and that alone does not con-
stitute "fraudulent concealment"
In this proceedmg, Respondent produced witnesses
who sought to convmce and persuade the Region's field
attorney that it did nothing wrong and, more specifical-
ly, that it bargained in good faith It provided, as re-
quested, bargaining notes, correspondence, and the pro-
posals and counterproposals It described what occurred
at the negotiations and its reasons for taking the positions
that it did When asked what the term "absolutes"
meant, Respondent answered and related what it applied
to and why it was applied Although it made no mention
of any position papers, the Union had made the field at-
torney aware of the existence of the steering committee
by the Union Because the "absolutes" constituted the
core of the dispute, I could not excuse his failure to ask
Respondent for all documents which related to the "ab-
solutes" or to the steering committee If Respondent had
2 Although not determinative of the motion or this proceeding, it is
fair to note that Respondent counters this argument by contending that
its =nal position was rejected after further study and review and that It
truly and in good faith believed that the "absolutes" were of utmost un-
portance to its continued, successful operations
answered that there were none, its response may well
have constituted a fraudulent concealment Kanalas Go,
293 NLRB 435 (1989) But there was no demand, and
there was no duty imposed upon Respondent to produce
position papers or the steering committee's minutes or
anything else, unless the field attorney made that
demand
Fraudulent concealment involves a duty to reveal an
operative fact In his brief opposing Respondent's
motion, counsel for the General Counsel cited Black's
Law Dictionary, 5th edition, West Publishmg Co, to
define the term as "The hiding or suppression of a mate-
rial fact or circumstance which the party is legally or
morally bound to disclose The test of whether fail-
ure to disclose material facts constitutes fraud is the ex-
istence of a duty, legal or equitable, arising from the rela-
tion of the parties, failure to disclose a material fact with
intent to mislead or defraud under such circumstances
being equivalent to actual 'fraudulent concealment
Counsel for the General Counsel and the Union cited
many decisions supporting their view that somehow Re-
spondent had a duty to reveal the existence of the nun-
utes and position papers I found none of them helpful
Rather, there has been no showing whatsoever that Re-
spondent had a duty to reveal anything
A concealment, if any, must be fraudulent There was
no proof that Respondent committed any fraud There
was no misstatement because the important questions
were never asked and the pertinent information was
never demanded All that was present was Respondent's
failure to tell the field attorney about minutes and papers
which might have contradicted the bona fides of its posi-
tion that it truly desired the "absolutes," rather than pro-
posed them solely as a means to create an impasse and
cause a strike However, as the Board said in Winer
Motors, it is a rare case where a respondent agrees that it
has violated the Act and it is typical that a respondent
denies a violation and proffers an explanation for its con-
duct If this were an 8(a)(3) discharge case, the General
Counsel would have the Board authorize reinstatement
of a charge anytime she later finds some new or addi-
tional evidence that an employer was motivated by the
employee's union activities There is no doubt that such
evidence is newly discovered, but Ducane Heating no
longer permits that to justify the reinstatement of a
charge There must be a fraudulent concealment, and
that, I found, was lacking in this proceeding
Accordingly, I dismissed the allegations of the com-
plaint which were based upon the unfair labor practice
charge filed and later dismissed in Cases 1-CA-19224, 1-
CA19567, and 1-CA-19690 One dismissed allegation
was that the strike was an unfair labor practice strike ab
initio The Union's allegation in Case 1-CA-19958 that
the strike was converted to an unfair labor practice stnke
had not been considered Therefore, I gave the General
Counsel the right to move to amend the complaint to en-
compass allegations arising out of the charges which
were not subject to Section 10(b) of the Act I also gave
the parties the right to move for reconsideration of the
scope of my order Only Respondent did so I denied
Respondent's motion, but I restated my intention to con-
596 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
sider the remaining allegations of the complaint only to
the extent that they occurred within 6 months of the
filing of any surviving charge I specifically noted that
there was nothing that prohibited the parties from intro-
ducing the newly discovered evidence, as well as other
evidence, as background to the charges which remained
in the complaint Rikal, Inc v NLRB, 721 F 2d 402, 405
(1st Cu 1983) The General Counsel, the Union, and the
Engineers requested the Board to grant special permis-
sion to appeal from my order The Board denied permis-
sion
2 The scope of this decision
Almost the entire brief of the Union is premised on its
request that I decide this proceeding as if I never grant-
ed Respondent's motion The General Counsel's brief
contends that Respondent engaged in surface bargaining
from the commencement of negotiations and that the
Union struck to protest that unfair labor practice 3 Ex-
plicit in the Union's brief and implicit in the General
Counsel's is a request that I disregard my Ducane Heat-
ing order I decline to do so To rule otherwise not only
would disregard what I have held to be Board law but
also would undermine the Board's refusal to permit the
parties to appeal 4
The Board knew, at the time I reserved judgment on
Respondent's 10(b) motion, that it had Ducane Heating
under consideration In what all must agree was an un-
usual action, the Board stayed the hearing in this pro-
ceeding in the middle of a tnal day The Board vacated
the stay when it reversed my order, which the Board be-
lieved denied Respondent's 10(b) motion, and the Board
directed that I reconsider the motion based on its then
recent Ducane Heating decision Thus, the Board must
have thought that the resolution of the 10(b) issue was
important enough not only to interrupt the hearing but
also to redirect the focus of the hearing to at least a par-
tial disposition of the proper scope of the complaint 5
Indeed, when I dismissed a major portion of the com-
plaint, and the parties requested special permission to
appeal, the Board did not hold that I erred It assuredly
was aware that I did not intend to find violations on any
allegation that was time-barred, and it did not direct me
to consider the allegations which I had dismissed In
these circumstances, I will neither reverse myself nor
consider issues which are no longer before me
Thus, the complaint does not allege that the Union's
strike was an unfair labor practice strike from its incep-
tion It alleges only that the strike was prolonged by the
3 This is utterly inconsistent with her contention that, because of my
Ducane Heating ruling and the Board's denial of her request for special
permission to appeal, she would not address the allegation that the
Union's strike was an unfair labor practice strike from its inception
The Board's Order permits the parties to renew their discontent with
my Ducane Heating order by filing exceptions to this decision, so the
Board has by no means left the General Counsel and the Union without a
remedy
5 Respondent's reply brief to the Board on It original request for spe-
cial permission to appeal to the Board made that point "Respondent
must endure weeks of what may well be unnecessary hearing before the
Administrative Law Judge, must affirmatively defend against time barred
charges, and will continue to be exposed to contingent liability of awe-
some proportions"
unfair labor practices which remain in the complaint
Furthermore, because the strike started well outside the
10(b) penod, Board law does not permit me to find that
the strike was an unfair labor practice strike Greenville
Cotton Oil Go, 92 NLRB 1033 (1951), affd sub nom
American Federation of Grain Millers v NLRB, 197 F 2d
451 (5th Cif 1952) Therefore, I must find that the em-
ployees' strike against Respondent was an economic
strike If the strike was prolonged by Respondent's com-
mission of unfair labor practices, the strike, as alleged in
the remaining portion of the complaint, would then be
converted into an unfair labor practice strike
My mina' point of reference is about February 28,
1982, because that is 6 months before the filing of the
first unfair labor practice charge which survived Re-
spondent's 10(b) attack and is a convenient date to begin
to detail the parties' negotiations However, because the
complaint alleges not only surface bargammg but also
unilateral changes, it is still necessary to summarize the
earlier negotiations to understand that the parties were
not in agreement on February 28, 1982, what areas were
in dispute, how the parties perceived of the possibility of
reconciling their positions, how the parties had treated
their proposals and how they had revised them or re-
mained adamant, and how all these facts affected the
right of Respondent to make the unilateral changes in
terms and conditions of employment and engage in other
conduct that, the General Counsel contends, caused the
strike to be converted into an unfair labor practice strike
B The Early Negotiations, the Absolutes, the Strike,
and the Unresolved Issues
The negotiations between the Union and Respondent
began on September 4, 1981, when the Union proposed
increases to practically every provision of the collective-
bargaining ageement, 6 what may be charitably character-
ized as a "soup to nuts" wish list for higher wages,'
double time, triple time, more holidays, 8 and sick days,
improved vacation and other benefits, better medical,
dental, and life insurance, better pensions, 9 severance
benefits, eased eligibility for benefits, increased shift dif-
ferentials, simplification of the arbitration procedure, ad-
ditional union stewards, and the like Perhaps historians
of the labor movement in the United States will look
upon the Union's proposals as the norm for the first full
year of the new Reagan administration Workers had
become accustomed to demanding more and more bene-
fits and higher and higher wages—and generally getting
'Although two agreements are involved, one for the production and
maintenance unit and the other for the office clerical unit, I will refer to
both as one agreement because there is no useful purpose for differentiat-
ing between them Furthermore, I will not differentiate between the ne-
gotiations for the two units in September and early October, which were
held separately, because the nature of the proposals and the discussions at
the separate negotiations were substantially the same
7 The Union proposed a 13-percent wage Increase in each of the 2
years of its proposed agreement, together with a cost-of-h ying clause
° This, at least, appears to be the effect of the Union's demand that a
holiday which falls on Saturday would be celebrated on the preceding
Friday
9 The pension plan provided a benefit of 59 per month per year of
service The Union sought an Increase to $11 in the first year of the
agreement and $12 in the second
BROWN & SHARPE MFG CO 597
much of what they wanted—but the new Republican ad-
ministration, starting with its response to the air traffic
controllers' strike, evoked some new thinking by indus-
try, and these negotiations, although not necessarily the
harbinger of a tougher attitude which was to prevail
during the next 7 years, if not more, represented some-
thing profoundly different
Management, too, had its wishlist of takeaways, a
word that may not have been as familiar in 1981 as it is
today As negotiations proceeded, it should have become
evident that Respondent's list had not been proposed, as
often happens, solely as a bargaining device to persuade
the Union to reduce or drop some of its demands This
time, Respondent made some of its proposals with the
expressed intention of not withdrawing them " On Sep-
tember 18, Richard Jocelyn, Respondent's principal ne-
gotiator, prefaced his presentation of proposals by noting
the less than vigorous state of Respondent's business and
certain of its product lines, analyzing the wages and
workers' productivity during the expiring agreement,
and stating that it was his objective to reduce inefficien-
cies and increase flexibility to permit Respondent to meet
its competition and face the next 10 years He threatened
that these negotiations were the most serious since 1967,
when Respondent successfully negotiated the elimination
of the incentive system, but he added that Respondent
did not intend to offer a small raise—wages were not
going to be an issue Among his written proposals were
Respondent's right to establish working schedules with-
out any limitation, to establish and change starting times
of employees, and to require junior qualified employees
to work on holidays and during Respondent's annual va-
cation and Christmas shutdown 11 Respondent wanted
the ability, if there were a layoff, to offer an employee
other work and did not want to be required, as it then
was, to give 5 days' notice It wanted to be able to
accept the offer of a senior employee to be laid off
before a junior employee, without having to seek the
consent of the Union It wanted to eliminate the require-
ment that it had to conduct timestudies whenever an em-
ployee claimed that the work standards were inaccurate
and the Umon's shop steward agreed
Jocelyn had two other proposals, not yet written
These became the major obstacles to an agreement The
first was that Respondent could require employees to
accept temporary transfers, and they need not consent to
the transfers, as in the past The second was the abolition
of machine seniority, job preference, 12 and permanent
job assignment Although these terms had a different sig-
nificance years before, when Respondent maintained an
'° I recognize that the original complaint alleged that Respondent pro-
posed certain provisions, which it knew were predictably unacceptable to
the Union, with the fixed intention of frustrating agreement, as part of its
surface bargaining conduct For whatever purpose, Illegal or legal, Re-
spondent wanted certain of these proposals in its new agreeement
11 An employee could take time off later by mutual agreement be-
tween Respondent and the employee
12 The distinction between machine seniority and job preference is
simply one that pertains to the different bargaining units Machine senior-
ity was a seniority right in the production and maintenance agreement,
whereas office clericals were entitled to job preference Otherwise, the
principles were the same
incentive pay system," they meant that an employee
had the right to exercise seniority to obtain an assign-
ment to a specific job or machine, and that machine
could not be operated by another employee The em-
ployee assigned to the machine could not be assigned to
a different machine even temporarily', unless the employ-
ee's assigned machine remained idle during the transfer
The initial reaction of Robert Thayer, the Union's princi-
pal spokesman, was that Respondent's proposal was re-
gressive, and he was bothered by its tone, which ap-
peared to charge the Umon with being the sole obstacle
to full production Respondent ought, instead, to be
looking for more union participation, instead of making
proposals which permitted employees to make their own
decisions without union participation
Negotiations on the job preference and mandatory
transfer proposals continued without appreciable
progress Repeatedly, Thayer claimed that there was no
need for Respondent's proposals because the Union had
always cooperated with Respondent and that, unless Re-
spondent could demonstrate to the Union's satisfaction
why the changes were needed, he would not agree to
the proposals Thayer testified that Respondent never
told him why these new proposals were needed Jocelyn
denied that this was so He testified that he called
Thayer's attention to specific past problems" and often
told Thayer that Respondent wanted the flexibility to
assign those whom it wanted to particular jobs, to
change assignments, and to require its employees to
work when Respondent wanted, and not when the
Union consented or the employees condescended to do
so In addition, Jocelyn argued that these were proposals
which management felt it needed, and, rather than Re-
spondent having to prove why it wanted these proposals,
the Union had to show the possible, harm which would
be done to it and the employees, weighed against the
benefits of what Respondent believed would result in the
effective operation of its business The concepts had to
be included in the collective-bargaining agreement, Joce-
lyn said It was the Union's responsirility to propose lan-
guage which would protect the employees and eliminate
any realistic problems which the Umon foresaw
Whatever one may think of these respective positions,
it cannot be denied that the negotiators were completely
at odds over the job preference and machine semonty
and mandatory transfer issues, which Jocelyn ultimately
termed absolutes, provisions that Respondent had to
have Throughout the remaimng negotiations, Respond-
ent maintained that position, although on occasion it re-
fined its proposals to meet specific objections which
is machines offered greater opportunities for employees to
exceed the established standards, and the assignment to those machines
was traditionally a perquisite of seniority Without incentive pay, these
jobs were still more attractive to the older employee because, although
they required more mental and visual skills, the 'machines were physically
easier to operate Probably, the more senior employee did not have to
work as hard in order to meet the timestudy for his machine and could
thus be protected from any disciplmary proceedings based on lack of pro-
duction
i4 example, Jocelyn argued that employees in some Instances had
negotiated special deals as the price for agreeing to transfers
598 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Thayer raised 15 In like fashion, throughout all negotia-
tions, Thayer resisted any agreement which would di-
minish the right of the employees to select their jobs and
machines and retain them Respondent's proposal was a
lcPear strike issue" and was "not attainable despite the
money" that Respondent might offer The Union was
"rigid in this area"
These were not the sole issues separating the parties
There was another, which Jocelyn had identified as a
strike issue, that was equally offensive to the Union Re-
spondent wanted to change the basis for the calculation
of pension benefits The present plan provided that em-
ployees would be paid a flat amount for each year of
service Jocelyn proposed to change this by paying the
employees amounts based upon their labor grades, so
that employees with higher pay scales would receive
greater pensions than lower paid employees, even though
they had worked the same number of years Thayer
found this proposal unacceptable for a variety of reasons,
including Respondent's Commitment (Thayer represent-
ed) in the 1975 and 1979 negotiations that it would never
change the present pension plan Thayer immediately
branded it a "strike issue"
When the strike commenced on October 19, 1981,
more than these absolutes separated the parties The par-
ties had discussed a myriad of issues By a few days
before the agreement's expiration date, Respondent, in
response to Thayer's arguments, had withdrawn many of
its original proposals and revised others," but Respond-
ent was very much on the offensive and m control of the
negotiations That resulted, in part, from Jocelyn's insist-
ence that noneconomic proposals be considered and re-
solved first, and Thayer's lack of strong resistance 17 Be-
cause there was never a meaningful consensus on the ab-
solutes, which were "non-economic," Jocelyn did not
offer Respondent's wage proposal (11-, 10-, and 9-per-
cent increases m the proposed 3 years of the agreement
and pension proposal (from $9 to $9 25-$10 50 in the first
year of the contract, depending on the employee's labor
15 For example, Respondent lunged the mandatory transfer proposal to
temporary transfers of up to 30 days, only where necessary It agreed
that no employee would suffer a loss of pay, and, when a transfer was to
a higher paying position, the employee would be paid the higher rate
Respondent would not transfer an employee to a higher seniority group
where there was a layoff, except when Respondent required an employee
to fill in for someone who was temporarily absent By the commence-
ment of the strike, Respondent's demand had narrowed to its use only
when a request for volunteers was unsucesseful Respondent limited its
job preference proposal to apply to assignments only within the same
labor grade and shift and only to maximize efficiency and for good busi-
ness reasons
16 For example, when Thayer rejected Respondent's proposal to delete
timestuches, Jocelyn agreed that the Union's president would make the
final decision about whether the tunestudy would be conducted Then, he
withdrew his entire proposal on umestudies if the Union would assure
Respondent that it would ask for a study only when it sincerely believed
that a standard was significantly incorrect Respondent withdrew its pro-
posal to remove the requirement that the Union had to consent before a
senior employee's request to be laid off before a junior employee could
be granted In response to the Union's proposal to streamline the griev-
ance procedure, Jocelyn agreed to eliminate one step of five when the
grievance involved suspensions and discharges
i " Thayer described that the past practice was that Respondent wanted
to agree first on non economics, the Union wanted to discuss economics,
and the discussion "just meshed" in a "continuous process"
grade, to $10 25-$13 in the third year) until 2 days
before the contract was to expire
Thayer did not react immediately to the amounts of
the wage increases Rather, he said that a 3-year agree-
ment presented a major problem Within a day, he real-
ized that he could not find fault with the amounts that
Respondent proposed, and his "major problem" disap-
peared However, several other proposals, which de-
pended o the length of the agreement, had to be revised
Because the contract deadline was soon approaching,
and with the absolutes unresolved and, to Thayer, unre-
solvable absent total surrender, Thayer, in the hope of
reaching an agreement, agreed to many of Respondent's
"final" proposals and withdrew many of the Union's pro-
posals However, Thayer, in addition to maintaining his
opposition to the absolutes, continued to propose in-
creased vacation pay and safety shoe allowance, chiro-
practic and additional dental benefits, and revision of the
arbitration procedure He also proposed to give up
washup time, provided for in the present agreement, and
trade it for 2 days of sick leave Finally, he rejected
other proposals sought by Respondent, including an in-
crease of the length of the then 90-day probationary
period and a revision of the dates for the Christmas shut-
down, when the employees customarily took their vaca-
tions
But this brief and incomplete recitation of what re-
mained for further discussion is not a wholly accurate
one Shortly before the stnke commenced, Respondent
withdrew its offer On Friday, October 16, Jocelyn an-
nounced that he wanted to conclude negotiations by 9
o'clock that evening and that, if no agreement had then
been reached, Respondent's offer would be withdrawn
Negotiations continued until well past that hour—Joce-
lyn first proposed Respondent's wage offer at almost 10
p m —and, finally, at sometime after 245 a m, Jocelyn
withdrew Respondent's entire offer, but not before offer-
ing to extend the expiring contract for another week to
permit additional bargaining, with any agreed-upon wage
increase to be retroactive He also cautioned later that
the absolutes would remain on the table 1 week from
then, and the week after that On October 18, the
Union's membership, which was advised of both the
Union's and Respondent's last offers, rejected the exten-
sion, and the strike began
C The Negotiations from October 18, 1981, to
February 26, 1982
When the parties resumed negotiations on October 21,
1981, a session which Jocelyn asked to be held to get
feedback from the Union's membership, he acted as if his
offer were still on the table and invited Thayer to review
both his and the Union's final offers and define the areas
of differences From Thayer's perspective, there were
still numerous strike issues the absolutes, the pension
plan, the dates for notification to employees that they
would have to work during the normal plant shutdowns,
and the relaxation of the arbitration procedure Thayer's
proposal to exchange washup time for sick days sudden-
BROWN & SHARPE MFG CO

599
ly became a strike issue The parties were stalemated,"
and there were hints that the Union's acquiescence in a
system to ensure that the employees came to work on
time, did not leave early from work or for lunch, or
arrive late from lunch ("clock ringing"), made during the
final stages of negotiations before the strike, would be
withdrawn At one point, Jocelyn said to Thayer that he
thought that Respondent's wage offer was sufficient to
have bought machinery seniority, but apparently the
Union did not think so
A meeting later that month was the occasion for
Thayer to vent all his frustrations The Union had never
negotiated economics, had never had a "fair shake" at
the table, and had the final proposal "dumped on us"
The Union's negotiating committee was not part of any
negotiating process Respondent was a dictator, refusing
to discuss and agree upon the demands of the Union and
proposing working conditions that Respondent "knew
we couldn't accept" Respondent's absolutes constituted
an attempt by it to "bastardize the seniority system" It
was impossible for the Union to accede to Jocelyn's re-
quest to write language that would protect the employ-
ees 19 The reason, Thayer explained, that the Union was
on strike was the "erosion of the seniority rights of the
people" On specific proposals, Thayer raised one new
argument He objected to the mandatory transfer provi-
sion because, as drafted, it put the onus on the Union to
agree with Respondent that there was a critical need for
the transfer and that a junior capable employee should be
transferred The Union would not tell an employee to
move when he did not want to
The Union and Respondent met four times in Novem-
ber On November 6 Jocelyn, responding, at least in
part, to Thayer's contention that Respondent had earlier
pledged not to touch the benefit schedules of the pension
plan, proposed to grandfather all employees hired before
the contract-signing date Those employees who became
covered under the pension plan after January 1, 1976,
would be paid pension benefits based on each year of
their service Respondent offered, for a 3-year contract,
$10-$11-$12, which equaled the Union's last offer before
the strike Those employees covered by the plan on Jan-
urary 1, 1976, would be paid on the same schedule or the
newly proposed benefit by labor grade amount, whichev-
er was higher Thayer showed no sign that he would
agree to this compromise The parties could agree only
on something negative, that they had a new problem
during the strike, Respondent had discharged some em-
ployees Thayer said that he had to obtain a strike settle-
" Thayer described his frustration with Jocelyn's attempt to prod the
Union into supplying Input Into the absolutes
You can't get creative to put other language The elimination of ma-
chine semonty, is the elimination of machine semonty Your can't
address It You can't say you have a partial elimination of machine
seniority It either is or It Isn't which was the same box we were in
throughout the year of negotiations I mean, short of agreeing to it,
how can you address it Other than agreeing to your elimination of
machine seniority
"Thayer explained to Jocelyn "Look, you can't disguise the Issue,
there's nothing that you can do, we can come up with, that changes
something that says you lose machine seniority and job preference, and
there's no way to disguise it, it's there, it's not going to change, you
haven't changed"
ment agreement which provided for no discharges and
no repercussions
The parties then recessed and returned to discussions
that evening when Thayer presented a counterproposal
Earlier in the negotiations, the Union had sought a
union-shop provision for its office clerical employees On
October 17, immediately before the strike, Thayer with-
drew that proposal Now he put it back on the table He
also retreated from his offer to give up washup time for
sick days and his previous tentative agreements prohibit-
ing employees from earning seniority while acting as su-
pervisors and increasing the amounts of shift differen-
tials He modified his proposals for bereavement leave,
union stewards, and clock ringing He also wanted am-
nesty for all the striking employees and proposed that
Respondent reimburse the employees for any insurance
premiums they paid during the strike and assume the ob-
ligation for all claims which would have been covered
had there been no strike Jocelyn commented that
Thayer's new proposal put the parties further apart on
25 items than they were before On 14 of those, the par-
ties had previously reached tentative agreement (Thayer
agreed at the hearing that, although his new counterpro-
posal adopted some of Respondent's proposals, it cost
more and was more favorable to the Union than its pro-
posals just before the commencement of the strike )
On November 17, Jocelyn made a counterproposal
which contained most of the proposals which were of-
fensive to the Union Thayer said that he still saw as ab-
solutes—not only those proposals that Respondent had
said that it had to have but also those proposals that
Thayer had said that in no event would the Union agree
to—job preference and machine seniority, mandatory
transfers, pension plan, Christmas vacation, and the 3-
year agreement Thayer described the first two absolutes
as being as "dynamite" now as they were 5 weeks before
and said that the Union's strike was not economic but
was a matter of survival The membership had rejected
Respondent's pension proposal The current pension ben-
efits were uniform, the people liked it that way, and not
one member wanted to change it
Less major problems still caused enormous difficulties,
even after a month's strike The parties still bickered
over clock ringing to ensure that employees did not
leave for lunch before they were supposed to They
could not agree to the dates when Christmas vacation
would be scheduled or to the amount of the shift differ-
entials or the shoe allowance or to the inclusion of root
canal therapy in the dental benefits or chiropractic cov-
erage under the health benefit plan There was also utter
disagreement about what should be included in a strike
settlement agreement, a dispute which loomed larger
each time the parties met All these disagreements were
reflected in a counterproposal which Thayer made later
that day
On November 20, Jocelyn made a new counterpropos-
al which differed from its previous offer in only a few
respects, but they were meaningful He deleted the re-
quirement that the Union had to agree to the mandatory
transfer, thus answering Thayer's previous argument that
he did not want the Union to participate Of more
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
portance, he added a provision permitting the Union to
block any transfer of an employee simply by filing a
grievance against it After review, Thayer declared that
the parties were still 11 issues apart Commenting on ma-
chine seniority and job preference, he said that he had no
way to address it "It either is or it isn't Mho was
something they wanted and [we] didn't," The union
committee did not know how to negotiate with "an abso-
lute requirement", it appeared to him that the parties
were "dead"
On November 23, Jocelyn distributed Respondent's
final offer, again with relatively few important
changes 20 The mandatory transfer provision was trans-
ferred to the management-rights clause and was limited
somewhat in its application However, even the presence
of any clause mandatmg the transfer of any employee
without that employee's consent was predictably not
going to be agreed to by Thayer, and it was not To him,
it was still "obviously a strike issue" Jocelyn now pro-
posed that the contract terminate on November 25, 1984
When there had been strikes in 1975 and 1979, the expi-
ration dates remained the same as they would have been
without the strikers, argued Thayer, who said that the
new date compounded the parties' problems And the
discharges of employees for picket line misconduct was
"going to be a problem," because Respondent was un-
willing to agree on the Union's strike settlement proposal
requiring that all strikers be reinstated In sum, there
was, according to Thayer, "no way in hell" that the con-
tract would be approved by the Umon's membership At
membership meetings held later that day, the vote for re-
jection was "overwhelming"
In early December, a few of the negotiators for each
side met in an attempt to think of some ideas to resolve
the issues raised by the absolutes One of the approaches
was based on a proposal for job ranking made by the
Union at the begmmng of negotiations Employees
would not be paid by their labor grade for what they did
and what machines they operated Instead, the employ-
ees were to be paid based on their knowledge and skills
Thayer's original proposal was contained in a union con-
tract at a nearby manufacturmg plant and provided for
workers being paid for their knowledge of some, most,
or all jobs That proposal never received a very favor-
able reception from Jocelyn, who conducted a brief
survey of only 11 of Respondent's approximate 170 se-
niority groups and computed $137,000 as increased base
wages for just that limited number However, Thayer
had frequently contended that job ranking would make
unnecessary the contractual protection of machine se-
monty and job preference
As a result, Jocelyn proposed to Thayer a concept of
job ranking, albeit different from what Thayer had origi-
nally proposed Jocelyn's progressions to higher labor
grades would be automatic, based on lapse of time
Eventually, all the workers would reach the highest
grade, but what would happen when they obtained their
20 In making these rather summary conclusions, I do not Intend to
imply that Respondent was unresponsive to the changes sought by the
Union In fact, Respondent made some concessions, although obviously
not significant enough to please Thayer
highest level caused this new proposal to go nowhere In
Jocelyn's words
The main objection that I got from Bob, to this
proposal was our position when a person could do
all, there was no more job preference
When they were doing some or most, we told
them we would attempt to assign them the work
within labor grade, but when they reached the top
grade for their job, there was no more job prefer-
ence
He wanted it the reverse that a person while
they were in the first or second step up, no job
preference for them because they got reassigned all
over the place, to learn their job When the[y]
reached the top they maintained job preference
Early m the negotiations, Thayer had accused Jocelyn of
trying to get job ranking without paying for it By that,
he meant that Respodent could transfer employees any-
where they were needed if it adopted job ranking Now,
he contended that, once an employee knew how to per-
form all the jobs in the plant and was being paid for the
knowledge, he had the right to pick his own job or ma-
chine and not perform anything else It should surprise
no one that Thayer's interpretation ended the discussion
The strike lingered through the end of the year and
into 1982, and Respondent began to take a hard look at
where it was and where it wanted to be The employees
were now receiving unemployment insurance benefits
and would do so for 20 or more weeks, and Thayer ad-
mitted to Jocelyn that he was feeling no pressure from
the employees to settle the strike Jocelyn decided to
supply that pressure In early January, Jocelyn advised
Thayer that Respondent was seriously considering hiring
replacement employees and advised the Engineers,
which was conducting a sympathy strike, that it was
considering hiring replacements for their members In
order to scare the strikers into thinlcmg that their jobs
were in jeopardy, Respondent loaded production equip-
ment on flatbed trucks and shipped the equipment, un-
covered, out of the plant and through the picket line
Respondent's officers began to give interviews to the
news media, and Respondent telephoned Rhode Island
Governor Joseph Garrahy to warn that it had to take se-
rious steps if it were to survive Fmally, Respondent
commenced interviewing prospective new employees
These steps had minimal impact The Federal Media-
tion and Conciliation Service (FMCS) called the parties
to a meeting in Boston The parties never met face to
face, but Respondent announced that it was seriously
considering hiring replacement employees because the
striking employees were seemingly content to receive un-
employment insurance benefits and the Union had no im-
petus to settle In early February, Governor Garrahy
asked Don Roach, Respondent's president, to address
him and his representatives and the Union's negotiating
committee about the competitive disavantages which
faced Respondent Roach reviewed Respondent's posi-
tion, specifically identifying that problems of inefficien-
BROWN & SHARPE MFG CO 601
cies were mvolved 21 and had to be solved The Gover-
nor asked if the parties wanted to resume negotiations
Thayer said that he would sleep on it
On February 14, Respondent published a full-page ad-
vertisement in the Providence Journal which reproduced
a letter previously sent to its employees The letter
warned that Respondent had reached a "fork in the
road" and, with no prospect of an early settlement, it
had to consider its survival even if that meant hiring re-
placement employees (By then, Respondent had already
begun hiring replacements for the Engineers ) On Febru-
ary 18, the parties met to negotiate about Respondent's
notice that it intended to subcontract certain bargaining
unit work The meeting was aborted, however, when
Thayer insisted that the negotiations include consider-
ation of a strike settlement agreement and Jocelyn insist-
ed that the subcontracting decision should not be bogged
down by and confused with the contract negotiations
On February 22, about 1000 pickets held a "solidanty
day" protest, which resulted in personal injury, property
damage, the closing of Respondent's plant, Respondent's
injunction action in the Rhode Island Superior Court and
filing of an unfair labor practice charge, and, ultimately
and of greater consequence to this proceeding, hard feel-
ings and new issues which further complicated the settle-
ment of the dispute between the parties
D The Status of the Negotiations, Impasse
By this tame, the strike was more than 4 months old If
the original unfair labor practice complaint were still
pending, I would have to determine whether Respond-
ent's violations of the Act caused the breakdown of the
negotiations, but I do not have to do so now All that is
before me is the status of negotiations so that I may de-
termine whether future events affected or altered the re-
lationship between the parties and Imposed upon Re-
spondent certain legal duties with which it did not
comply I conclude that, as of the end of February 1982,
before the relevant 6-month penod during which unfair
labor practices are alleged, the parties were at impasse,
and they had been at impasse for some time The Board
defined impasse in Taft Broadcasting Co, 163 NLRB 475,
478 (1967), enfd sub nom Television Artists AF7'RA v
NLRB, 395 F 2d 622 (D C Cir 1968)
Whether a bargaining impasse exists is a matter of
judgment The bargaining history, the good faith of
the parties in negotiations, the length of the negotia-
tions, the importance of the issue or issues as to
which there is disagreement, the contemporaneous
understanding of the parties as to the state of nego-
tiations, are all relevant factors to be considered in
deciding whether an Impasse in bargaining existed
The negotiations began in September 1981 and the par-
ties met 10 days, some of them very full days, prior to
the strike The complaint no longer alleges that there
was any lack of good faith at that time The overriding
issue that kept the parties apart, and one that was of the
greatest importance to the parties, was Respondent's
desire to have complete flexibility in its assignment of
employees to work, to transfer exployees to positions
where Respondent needed them, and to require them to
work when Respondent desired Jocelyn represented at
the very beginning of negotiations, and he never misled
Thayer, that Respondent was not going to sign an agree-
ment without the two absolutes Conversely, the Union
interpreted Respondent's proposals as a full assault on
the employees' seniority nghts, and some of 'Thayer's
comments, quoted above, demonstrate that he thought
that there was no possibility of a settlement which in-
cluded the absolutes Indeed, on October 17, Thayer re-
jected Jocelyn's proposal to extend the agreement for a
week, because the absolutes would remain on the table
and the Union would never agree to them Thus, I find
that the parties well understood that they were at im-
passe as early as the beginning of the strike, at least if
they continued to maintain their positions regarding the
absolute, as they in fact did
Another way of determining whether the parties are at
impasse requires an inquiry into the possibility that the
parties will change their positions Is there a "ray of
hope with a real potentiality for agreement if explored in
good faith m bargaining sessions ?" NLRB v Webb Furni-
ture Corp, 366 F 2d 314, 316 (4th Cir 1966) Or would
additional bargaining be futile? Alsey Refractories Co, 215
NLRB 785 (1974) And would it be fruitless to hold fur-
ther meetings? NLRB v Dell, 283 F 2d 733, 740 (5th Cir
1960) Based solely on the absolutes, I conclude that
there was an impasse on October 18, 1981 Even if this
conclusion were doubtful, surely the parties had reached
an impasse by the end of the next 4 months There were
some negotiations in October and some substantive and
productive sessions in November, at least to the extent of
agreements reached which avoided some minor disputes
But all the major controversies remained Not only were
the absolutes untouched but also the parties could not
even think of a way to approach the problem of meeting
some middle road, with each side preserving something
At the end of the November sessions, Thayer took Re-
spondent's final offer to his membership, which rejected
it overwhelmingly No new negotiations were scheduled
The only event of moment in December was the attempt
by Jocelyn to think up some new way of approaching
the items in dispute His group came up with an idea,
based on Thayer's proposal, but Thayer's quick rejection
made it obvious that semonty rights were sacred to him
and that he would not bargain them away Nothing hap-
pened in January and February 1982 that would give
anybody hope that there was a better chance of a settle-
ment With Respondent's threat to employ replacements,
the positions of the parties could only harden, and they
did I conclude that by the beginning of any arguably ap-
plicable 10(b) period, the parties were at impasse The
breach unfortunately grew wider
E The Negotiations from February 26 through
March 1982
By late February 1982, some of the Umon's unfair
percent that of workers in Japan labor practice charges had been dismissed by Region 1
21 Roach stated that the productivity of Rhode Island workers was 60
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and were being appealed to the Office of Appeals, the
strike had its moments of violence, and Respondent was
seeking an injunction (its state court action had been re-
moved by the Union to the Federal court), the newspa-
pers were reporting that the Union wanted to resume ne-
gotiations, and Romeo Calderone, the Rhode Island di-
rector of labor, asked the parties to meet with him on
February 26 The meeting was held, but the parties re-
mained in separate rooms Jocelyn told Calderone that
Respondent's final offer made on November 23, 1981,
would no longer settle the strike, because Respondent
had incurred costs of $12 million during the strike Joce-
lyn was not even going to make a proposal If the Union
had one, he would listen to it, but he warned that Re-
spondent had learned much from operating the plant
during the strike with nonumon personnel, and any set-
tlement had to reflect the lessons learned
Calderone left to confer with the Union and returned
with a written proposal in which the Union agreed to
some provisions that it had not agreed to before Howev-
er, regarding the mandatory transfer of employees, there
was written next to it "discuss and resolve" To Jocelyn,
"after 20 weeks of strike [this] was a non-proposal"
Later, Governor Garrahy arrived and told Jocelyn that
the Union was prepared to move on the absolutes Joce-
lyn could not contain his anger and told the Governor
that he was being used or had misunderstood or (and in
less polite terms) did not know what he was talking
about Jocelyn asked him to go back to the Union and
venfy that it was prepared to move The Governor re-
turned to report that the Union was not so prepared 22
I take a brief pause from this narrative to indicate
what issues remain in the complaint regarding Respond-
ent's alleged surface bargaining In a nutshell, not much
of 19 factual allegations relied on as evidence of the
unfair labor practice, only 2 remain Respondent is
charged (1) with failing and refusing to make any bar-
gaining proposal from March 28, 1982, through May
1983, and (2) on or about June 25, 1983, with "introduc-
ing new, regressive and predictably unacceptable propos-
als into negotiations" Accordingly, I describe the negoti-
ations solely to make understandable my findings relating
to these remaining allegations
On March 2, the United States district court ruled that
it had no jurisdiction over Respondent's injunction action
and remanded it to the state court where, after the first
hour of hearing that day, the judge instructed the parties
to return to negotiations for 5 days That prompted some
intense, but ultimately fruitless negotiations which began
the next day and ended 2 weeks later, with the parties in
even greater disagreement It started with Jocelyn's pres-
entation of some new written proposals One permitted
Respondent to require employees to take physical exanu-
nations and to transfer employees who were receiving
workmen's compensation benefits to different jobs so
they would continue to work Another proposed a ban
22 Jocelyn's testimony about his anger with Governor Garrahy leads
me to believe him In addition, I find that the Union was not prepared to
change its views about the absolutes, as in fact it did not for more than a
year thereafter I find that R Exh 63 was given to Respondent and that
the fifth page attached to G C Each 50 was not given by the Union to
Calderone for dehvery to Respondent
on sympathy strikes Another contained several new sub-
stantive proposals, (1) supervisors would be permitted to
perform some unit work which was incidental to their
supervisory duties so that they could perform minor
maintenance and could routinely revise standards and
methods of operation, (2) there would be a "labor pool"
to permit Respondent to assign employees immediately
to eliminate bottlenecks in the production system and
reduce overtime, and (3) the expiration dates of the
agreements for the clerical unit and the production and
maintenance unit would be different, the latter expiring
on January 25, 1985, after the end-of-the year shipping
rush and when Respondent would have better informa-
tion on which to base its proposals
Jocelyn revised one of his earlier proposals Respond-
ent had learned during the strike that many of the time
standards were mcorrect Some were too high, others,
too low Timestudies cost money, and it was in the fore-
man's interest to ensure that the standards were correct
because he was evaluated on the performance of his em-
ployees Supervisors had been running the machines and
were familiar with them, and the supervisors would
decide whether a timestudy was necessary or whether
the request for a study was made only to harass Finally,
Jocelyn proposed a strike settlement agreement which
provided, among other things, that the replacement em-
ployees would maintain their employment and that any
returning employees had to take physical examinations
To all this, Jocelyn added that he would probably have
additional proposals based on Respondent's experience of
running the plant during the strike
Thayer asked Jocelyn whether Respondent's last pro-
posal was still on the table and whether the new and re-
vised proposals were merely modifications of the last
proposal Jocelyn replied that Respondent was no longer
willing to settle for what it had previously offered The
Union had no proposals from Respondent, other than the
ones that he had just presented He was preparing lan-
guage for other proposals After a caucus, Thayer an-
nounced that the new demands gave no signal that good-
faith bargaining was going to commence He requested
that Jocelyn withdraw his last proposals so that the par-
ties might discuss and resolve the proposals that original-
ly had created the strike Jocelyn refused to do so Cal-
derone opined that the parties were "worse off" than
they were at the beginning of the strike Thayer said that
the Union was bargaining in good faith, pointing out that
he had dropped his opposition to several of Respondent's
proposals on February 26 without even coming to the
table Jocelyn replied that Respondent had learned much
m the last 20 weeks and had developed different methods
for getting the work done, such as a teamwork concept
and employees going back and forth between different
jobs There was nothing magical about employees doing
other kinds of jobs Supervisors were running as many as
four machines, were moving their own work, and were
not killing themselves They did not need employees
from the maintenance department to help them move
Besides, different methods were not warranted the strike
had cost $12 million and Respondent was not quoting
orders and not shipping some goods Thayer contended
BROWN & SHARPE MFG CO 603
to Calderone that Jocelyn was going through the mo-
tions "[B]ased on the proposal they put on the table this
morning, how could he ever even conceive that this
company was going to try to resolve this thing "23
That evening, Thayer began to review where the par-
ties were, identifying the proposals that he thought the
parties had agreed upon and one, the amount of the shift
differentials, as proposed by Respondent, that the Union
was now agreeing to Jocelyn interrupted and stated that
he was still reviewing those proposals, that Respondent
had found during the stnke that certain changes might
become useful, and that it might want to make other
changes or no changes at all Jocelyn said that, even on
matters previously and tentatively agreed to by Respond-
ent, there was no longer a tentative agreement on any-
thing because of what Respondent had learned during
the strike For example, Respondent now felt that an em-
ployee should work the full day before and the full day
after a holiday in order to be paid for the holiday, a pro-
posal that Respondent had previously made and with-
drawn 24 Respondent was no longer willing, as it had
been before, to agree, as the Union had proposed, that
no more than 50 percent of the employees could be re-
quired to work during any normal vacation week
On other matters, however, Jocelyn said either that
the proposal tentatively agreed upon was still acceptable
or that Respondent was not considering any change of
its previous position or that Respondent agreed to a cer-
tain proposal, once Thayer had changed the Union's po-
sition to an agreement with what Respondent had previ-
ously proposed On yet other issues, such as mandatory
transfers, Jocelyn said that Respondent might submit an-
other proposal "[That one's under active consideration
as far as the company was concerned" When the discus-
sion turned to some economic matters, even though
there had been a tentative agreement, Jocelyn said that
there was none, notmg "You'd better know that the eco-
nomics is a big issue from here on out because this strike
has cost the company a lot of money, and the whole pro-
posal regarding the economics is still up in the air" On
still other proposals, when Thayer agreed to certain pro-
posals, Jocelyn reminded Thayer that he had earlier in
the session given a new proposals on that very subject,
and the new proposal reflected that Respondent was no
longer willing to agree to proposals that it had been will-
ing to accept before the strike
Thayer argued that by so doing, Jocelyn was digging
the hole deeper and deeper, that the negotiations were
getting worse, and that Respondent was offering propos-
als that were regressive Sometime later, Jocelyn re-
marked that the only movement by the Union was on
as Thayer had other reactions to Respondent's proposals The Union
was certified for the production and maintenance employees, and there
was "no way that they realistically could expect us to give up our
nghts under that certification and now accept supervisors doing bargain-
mg unit work" It was "Inconceivable" to expect that the Union would
accept that proposal The labor pool was a "one-way street," without
benefit to the Union "[There's just no way in hell that they could even
realistically expect us, with these Issues now staring us in the face, to get
serious about any kind of resolve It was all a one way street and It con-
tinues to be that one way street"
24 The current agreement provided only that the employee be "in at-
tendance" both days
the benefit for safety shoes, but Thayer claimed that he
had moved on various demands (shift differentials, super-
visors' seniority, and sick days) and had not escalated his
demands The only items that the Union was looking for,
contended Thayer, was that its strike should not eco-
nomically hurt the employees Some employees had con-
tinuing illnesses, and the Union still wanted them cov-
ered by insurance (albeit at the employees' expense) One
employee had died, and the Union wanted to make sure
that Respondent still had life insurance Because vacation
pay was a percentage of an employee's yearly earnings,
the employees should be credited as if they had worked
40 hours a week during the stnke Otherwise, there
would be "a drastic effect on their vacation" pay The
parties resolved none of these demands, and they
reached no agreement on any of their respective propos-
als for a strike settlement agreement, such as retention or
termination of replacement employees, recall of strikers,
no reprisals, and withdrawal of all unfair labor practice
charges
On March 4, Jocelyn did not have a written proposal,
but he began to review certain of the outstandmg issues
He sought the Union's assurance that it would continue
to cooperate on the issue of employees' starting times If
the Union agreed, he would not offer any new proposals
He agreed to leave intact the proposal that Respondent
could require only 50 percent of its employees to work
during the normal vacation shutdowns However, he had
a problem making up for the time lost by reason of the
strike and wanted the Union to agree in a side letter that
Respondent would have the right to work full depart-
ments during the August and December shutdowns in
1982 Jocelyn repeated Respondent's earlier position that
an employee must work the full day before and the full
day after a holiday to be eligible for that holiday He
also said that there might be times that Respondent
wanted to move a senior person into another department
Thus, he had problems with the concept, previously
agreed to by the parties, that junior employees would be
moved Furthermore, he said that the contract should
not restrict Respondent from transfernng employees into
departments that had layoffs, because Respondent might
have to clear bottlenecks immediately, without the neces-
sity of recalling employees from layoff Finally, he with-
drew his earlier proposal that the Union's filing of a
grievance would block a transfer The employees would
have to accept the transfer, but the grievance could con-
tinue to arbitration If the Union agreed to this revision,
Respondent might be able to avoid the concept of a
labor pool
Jocelyn discussed other matters, such as his new pro-
posal on clock ringing, and defended Respondent's insist-
ence that unit employees were entitled to gain seniority
credit while working as supervisors and that supervisors
could do unit work Thayer questioned whether Jocelyn
was serious about the latter demand The employees
would not agree to that provision The discussion turned
to the strike settlement agreement Jocelyn announced
that under his proposal the replacement employees
would continue to work and the employees who were
discharged for strike misconduct would remain fired
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Any standards that the supervisors found were incorrect
would be changed He still insisted on physical examina-
tions, noting that the strike was then 20 weeks old and
Respondent would not be held responsible for any inju-
ries that the strikers had incurred elsewhere He talked
about the possibility of the phased recall of the stnkers,
but said that work had dropped off Finally, he threat-
ened that he had more proposals m this brief case, but he
would leave them there for the present However, if the
strike lingered, he might want to add more proposals In
the meantime, the parties had enough on the table to dis-
cuss
Thayer complained that, although the Union had pro-
posed a complete contract, Respondent was holding
back, with the Union wondering what it was going to
add later If the Union had any hope of reaching an
agreement, it had to know all the issues, rather than re-
solving some issues, only to have Respondent make new
proposals Jocelyn refused to commit himself and re-
served the right to add more proposals or modify present
proposals at any time The state mediator reminded Joce-
lyn that the parties had returned to negotiations under a
court order and that the Department of Labor was to
report to the judge Without an offer from Respondent,
the mediator did not know what he had to settle It was
impossible for him to mediate
Thayer continued to complain that he was bargammg
in the dark and that it was impossible to bargain with
threats of new proposals or modifications hanging over
the Union's head While the Union had confined itself to
its orgmal proposals and had not escalated its demands,
Thayer contended that Respondent had made eight new
demands, which it knew were so "totally unacceptable
that the Union and its membership could never
agree and [were] obviously so regressive that [they
were] unable for acceptance" Provisions which the
Union thought had tentative agreements, Thayer contin-
ued, were no longer agreed to, and Respondent was
mamtammg that it had the right to add more provisions
Thayer thought that the Union knew why it had struck
m October 1981, and the reason was Respondent's abso-
lutes Now Jocelyn was moving the center of the cause
of the strike, and the Union was unable to negotiate co-
gently Thayer pleaded with Jocelyn to make a complete
offer so that the Union could agree to the proposals or
disagree with them or at least agree to disagree He sug-
gested that, without such a proposal, Respondent was
not attempting to negotiate but was only sitting at the
table because the judge had ordered Respondent to do
SO
Calderone and the mediators supported Thayer, con-
tending that they could function only if they knew what
the issues were Jocelyn retorted that the Union had also
changed its position, revertmg from its previous tentative
agreements on clock rmgmg and that employees earned
seniority credit when acting as supervisors Nonetheless,
Jocelyn assured Thayer that he would not alter his posi-
tion for 5 days Thayer understood that, if no agreement
were reached in 5 days, "all bets were off" and Jocelyn
would make additional proposals Thayer proposed that
the parties recess and caucus and put together their
entire proposals Jocelyn replied that he did not know
whether he was prepared to do so
That afternoon, Respondent withdrew its request for
an injunction, and so the judge's order to negoitiate was
no longer effective However, the parties resumed their
negotiations the following day, Friday, March 5, but
there was no exchange of proposals Indeed, little hap-
pened, except that Calderone became angry, felt that the
mediators were being used, threatened that he would file
a report with Governor Garrahy, and called upon the
parties to prepare and exchange full proposals Jocelyn
said that he needed time to discuss his proposal with Re-
spondent, and negotiations recessed until Tuesday,
March 9, when the parties exchanged complete propos-
als The Union's proposal still showed differences on a
variety of lesser issues the length that an employee
could accumulate the allotment for safety shoes, the
number of days that an answer had to be filed in the
second step of the gnevance procedure, and the amounts
of different dental benefits The nght of Respondent to
require employees to take physical examinations was still
rejected, as were the no-sympathy strike clause and the
expiration dates of the agreements
However, the Union drastically changed its proposal
regarding machine seniority and job preference and man-
datory transfers by offering to reduce the then present
118 seniority groups (in the production and maintenance
unit) by classifying them by occupations and no longer
by departments For example, painters in the paint de-
partment m all divisions would be mcluded m the same
classification, and there would be seniority in that classi-
fication Now, Thayer explained, if Respondent had 10
painters in the machine tool division and 10 in mdustnal
products, it would have a pool of 20 people whom it
could use wherever it wanted at any time, with total
flexibility The Union's proposal included only 23 occu-
patinal classifications, and Respondent could assign em-
ployees even from the North Kingstown to the Greys-
tone facility, if it felt that it had the need to do so, and
assign senior employees before their juniors, or vice
versa, without limitation
Jocelyn prefaced his presentation by stating that Re-
spondent's proposal would remain on the table until
March 17 In addition, he noted that a van had recently
been blown up, and if there were any other violence, he
would not negotiate Thayer denied knowledge of any
such incident Jocelyn later reviewed each of Respond-
ent's proposals, indicating the tentative agreements and
the areas where the parties were still apart in their think-
ing Most of the tentative agreements reflected agree-
ments made months before The disagreements were
almost the same as those which had lingered and festered
for months, except for those proposals which Jocelyn
first proposed in early March
Much discussion centered on the Union's new proposal
for seniority by occupational classification Jocelyn noted
that it would do away with machine seniority, and
Thayer agreed, adding that there would be no job pref-
BROWN & SHARPE MFG CO

605
erence either 25 The Union's proposal, Thayer said,
would allow Respondent to move employees wherever
Respondent wished The only possible negative impact
would involve layoffs, because Respondent would have
to lay off first the junior employee of all the employees
in the classification Otherwise, Thayer contended that
his offer encompassed Respondent's labor pool proposal
of a week before 26
However, Thayer refused to give Respondent all that
it wanted Thayer still maintained that the voluntary
transfer provision worked well and he did not want to
amend it Although Jocelyn thought that the occupation-
al grouping was interesting, he contended that Respond-
ent still wanted to mandate a transfer of any employee
anywhere, and Thayer's proposal did not fully address
mandatory transfers For example, if all painters were
busy, Jocelyn wanted the right to dictate who else
should paint He also said that Thayer's proposal raised
problems about overtime assignments (because the con-
tract provided for a form of equalization of overtime,
Respondent would have to divide overtime with some
equality among the employees in all the divisions, even if
only one division had substantial overtime), layoffs (be-
cause of the three divisions, the one with the junior em-
ployee might be the busiest and could ill afford to lose
an employee), and upgradmgs (again, the Union's pro-
posal might force Respondent to transfer an employee
from its busiest division to one which was not busy) Jo-
celyn said that he viewed Respondent's viability not as a
company as a whole, but as three separate divisions, and
he was not interested in combining them into one seniori-
ty group Finally, he complained that Respondent was
satisfied with the general principle of machine semonty,
which encompassed specialization on particular ma-
chines, and felt that the Union's new proposals would
interfere with a worker's skills
Thayer countered that the essence of Respondent's
mandatory transfer proposal was to get rid of departmen-
tal and machine semonty and yet, now, Jocelyn was ar-
guing that both were beneficial Nonetheless, Thayer
conceded at the hearing that Jocelyn had never proposed
that mandatory transfers would be 'muted to divisional
lines He conceded that, under the Union's proposal, Re-
spondent could transfer only those employees m the
same labor classification He conceded that one of the
disputes still centered on the Union's insistence that
transfers outside of the labor classification would still be
voluntary, which Respondent wanted to make mandato-
ry Finally, Thayer also conceded at the hearing that Re-
spondent's proposal afforded Respondent more flexibility
than did the Union's
The discussion then turn to the strike settlement pro-
posals Thayer still insisted that all striking employees
who had preexisting illnesses and those who became ill
during the strike receive their medical benefits He also
proposed that Respondent rescind all promotions, re-
schedule all missed vacations, and take no reprisals
25 Thayer had not made a similar proposal for the office clerical em-
ployees, but said that, if the concept was agreed to for the production
and maintenance employees, a similar concept could be worked out for
the office clencals
26 Jocelyn's March 9 proposal omitted any reference to a labor pool
against the employees He reworded his striker replace-
ment proposal, but it was effectively the same—Re-
spondent would immediately recall all employees, strik-
ers, and replacements, by seniority Thus, the replace-
ments (other than strikers who returned during the strike
or employees who never went on strike), who had com-
paratively little seniority, would be bumped by the strik-
ers who had many more years of service The result of
the Union's proposal would be that most of the replace-
ment employees would lose their jobs and the strikers
would be rehired
After a caucus, Thayer reviewed Respondent's propos-
als, indicating, as Jocelyn did earlier, where the parties
had reached tentative agreements and where the parties
differed The differences were substantial They included
the requirement that employees may receive holiday pay
only if they work the full days before and after the holi-
day, the scheduling of Christmas week, and what par-
ticularly riled Thayer was that Respondent had the
power to require employees to work on New Year's
Eve, Respondent's proposal that it could require employ-
ees to work during the normal August and Christmas
shutdown and, at its sole discretion, offer them either
time off or pay in heu of their vacations, without afford-
ing the employees any right to choose what they
wanted, mandatory transfers, which had become worse
because Respondent withdrew provisions requiring it to
transfer junior employees before senior employees, pro-
lubiting transfers into departments where there had been
layoffs, and blocking transfers when a grievance had
been filed, separate expiration dates for the two con-
tracts, a no-sympathy strike clause, 27 job preference, Re-
spondent's proposal to limit the accumulation of the pur-
chase price of safety shoes for only 2 years, not a longer
period, as the Union wanted, physical examination of all
employees,28 nmestudies (but the Union now would
agree to Respondent's proposal of November 23, 1981),
pensions (if the cost of the Union's proposal was the
same as Respondent's, why should pensions be an issue,
argued Thayer), supervisors doing bargaining unit work,
even with Respondent's newly proposed limitation that
supervisors could not work than 20 percent on unit work
in any calendar quarter," a system of seniority that
would establish four classes of employees, (1) employees
working before the strike who worked during the strike,
(2) employees hired during the strike, (3) strikers who
had been replaced by other employees after the strike
commenced, and (4) unreplaced strikers, 3° increases in
the dental plan, changing of standards on machines by
supervisors, without any union participation, and with-
drawal of all litigation
The negotiations for the week ended with Thayer's
complaint that Jocelyn was holding a gun to the Union's
head by imposmg a March 17 expiration date on his pro-
27 Thayer stated to Jocelyn "I don't think I have to tell you how far,
how much consideration we could give to something like that"
26 Thayer said "(There is no way that the memberslup is going to
buy that, there is no way that we can even recommend that"
a° Thayer said "There was Just no way in hell that we could let super-
visors do work that we had been certified for"
02 Thayer said, in "strenuous terms" "[There was no way that we
were going to agree to that"
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
posal and a general discussion of the Union's labor classi-
fication proposal, which Jocelyn thought represented
some "good thinking" that he wanted to examine more
closely He stated that he had some concerns, but he
would see whether the proposal could be "fine-tuned"
The parties discussed the Union's proposal again on
March 12 Jocelyn stated that, while he would continue
to examine the benefit of combmmg some of the labor
groups, he did not believe that the Union's proposal an-
swered fully what Respondent's mandatory transfer pro-
vision attempted to accomplish Furthermore, the Greys-
tone facility was a separate division, and the employees'
skills there were different from the employees' skills in
North Kingstown Thayer contended that his proposal
was more beneficial to Respondent than the current con-
tract For example, if there were a layoff, it was conceiv-
able that one division's most junior employee might have
10 years' seniority, and he would have to be laid off At
another division an employee with only 3 years' seniority
would maintain his job Respondent would retain more
experienced employees by agreemg to the Union's pro-
posal Jocelyn countered that Respondent invariably
found other employment for the more experienced em-
ployee who otherwise would be laid off
Ultimately, Jocelyn said that he could not view the
Union's proposal as a substitute for Respondent's propos-
al of mandatory transfers and the elimination of machine
seniority and job preference Again, Thayer contended
that his proposal eliminated machine seniority and that
he addressed the job preference proposal by broadening
the group entitled to jobs to include all the skilled em-
ployees Again, Jocelyn argued that, if the group were
broadened, Respondent would have more difficulty in
laying off and upgrading employees and equaliziang
overtime Thayer said that the parties were getting no-
where and accused Jocelyn of not even thinking about
the Union's proposal The contract was to include Re-
spondent's proposals and nothing else, they were abso-
lutes Calderone said that, because Respondent had re-
jected the Union's proposal, he saw no pomt in contmu-
mg to talk about any of the other issues, and he called
for a break in the negontions He would confer separate-
ly with the parties If he believed that there was a point
in resuming, he would try to arrange a meeting
The parties met on March 17 to discuss Respondent's
proposal to subcontract some of its work Later, howev-
er, the discussion turned to the contract negotiations, and
Thayer accused Jocelyn of escalating his demands Joce-
lyn refused to debate whether ins proposals were escala-
tions or new proposals, but stated that they reflected
conditions that Respondent now thought would make it
more competitive He referred to the 1975 and 1979
strike and said that Respondent's resolve was never
firmer One side was merely going to have to persuade
the other Respondent's original demands were still unre-
solved, and Respondent was prepared to hold to its de-
mands until the economic pressures brought one side for
the other to its knees
That day, after the meeting, Thayer wrote to Jocelyn
asking for specific information about Respondent's sub-
contracting of work, including the costs being quoted by
the prospective vendors or Respondent's subsidiaries
who were under consideration to manufacture the work
Despite the complaint's allegation that Respondent did
not supply this information to the Union, Thayer testified
that he received the names of the prospective vendors
and some of their costs Jocelyn not only exhibited a
letter, dated Apnl 30, in which he provided cost infor-
mation to Thayer but also testified that he orally gave
the rest of the information to Thayer at the bargaining
table, a position which is partially supported by the
Union's notes of the negotiations held on March 28 The
General Counsel's brief omits discussion of this allega-
tion, and so I have no guide to what the General Coun-
sel believes was not produced in violation of the Act 3
In all the circumstances, the General Counsel has proved
nothing, and I will dismiss paragraphs 17(a) and 19(a) of
the complaint
Earlier, the parties had met on March 24 to discuss
further Thayer's request for information, and, although
the meeting had been called primarily to discuss subcon-
tracting, the discussion also touched upon the general
contract negotiations Thayer stated that Jocelyn had
never addressed the Union's proposal If Jocelyn main-
tamed that Respondent was holdmg to its absolutes and
that they were not negotiable, he should openly say so
The meeting ended with each party accusing the other
of escalating the demands After that meeting, as a result
of new alleged incidents on the picket line which result-
ed from another "solidarity day" on March 22, 32 Re-
spondent again applied for an injunction Again, as part
of the judge's consideration of the application, the judge
ordered the parties to negotiate over the weekend with
the help of the State Department of Labor
So it was that the parties returned to negotiations on
March 28 Calderone felt that it was best if the parties
abandoned their subcontracting negotiations and returned
to the March 9 proposal to discuss and resolve the issues,
or, at least, to find out where the parties were going Jo-
celyn agreed to do so, as long as everyone realized that
the March 9 proposal was no longer on the table, that it
had a deadline of March 17, and that date had come and
gone A heated argument followed, with Thayer corn-
planing that he could not make progress without a pro-
posal to discuss Jocelyn said that he could discuss the
outstanding issues and, if Thayer did not know them by
then, they had nothing to discuss However, if the Union
had a proposal, he would listen to it and discuss it
Thayer said that it was ridiculous, Jocelyn was asking
the Union to sit there and bargain against itself Jocelyn
reiterated that his proposal had expired and, despite the
mediator's urging, he refused to offer it again No further
meetings were scheduled, and the parties would not meet
again for 4 months, when they met only to discuss sub-
contracting
31 I requested counsel for the General Counsel to submit with his brief
a proposed order setting forth all the relief which he was requesting
That may have provided a clue to what material he thought had not been
produced Unfortunately, he faded to do so
32 Jocelyn testified that there were approximately 1500 pickets who
closed down the main road There was violence 60 car windshields were
smashed, the security shed was incinerated, the Winnebago from which
Respondent attempted to videotape the demonstration was disabled, and
people were injured and had to be taken to the hospital
BROWN & SHARPE MFG CO

607
F The Last Negotiations 1982-1983
In April 1982 Governor Garrahy contacted the parties
and offered to set up a faztfmdmg commission, whose
purpose would be to hear the issues from both sides and
arrive at a potential resolution The parties would not be
bound by its recommendations The Union agreed, but
Respondent refused, rejected what it perceived to be a
political settlement of the strike Accordingly, no com-
mission was established nor was factfinding conducted
By now, the strike had continued for one-half year, and
the parties were further at odds than ever No negotia-
tions were held in April, and nothing was scheduled in
May, but there was some other activity
On April 6, Jocelyn advised Thayer that Respondent
had implemented the wage increase and increases of
dental benefits, life insurance, major medical, and safety
shoe allowance contained in its November 1981 offer On
May 10, Jocelyn announced to Thayer four proposals,
which were contained in the proposal of March 9, 1982,
that Respondent intended to implement eligibility for
holiday pay, work dunng August and Christmas 1982 va-
cations, 120 calendar days' probationary period, and su-
pervisors doing bargaining unit work Thayer did not
reply Jocelyn sent yet another letter on May 17, advis-
mg that Respondent intended to implement its March 9,
1982 proposal to correct the incorrect standards found
during the strike On May 26, Thayer responded to both
of Jocelyn's May letters and reminded him that he had
placed a deadline on his March 9 proposal, which no
longer existed Thayer wrote that the proposed imple-
mentations constituted illegal unilateral changes of man-
datory subjects of bargaining and requested "immediate
meaningful negotiations" Jocelyn declined on June 1"
In the summer, Governor Garrahy and the State's
Congressional delegation asked the parties to meet in
Washington, D C, with Kenneth Moffett, then acting di-
rector of FMCS There was a meeting on July 26, but
the parties never met face to face Nor was much accom-
plished because, although Thayer was willing to discuss
his last proposal, he did not want to get "suckered" into
negotiating only from his own proposal He also con-
tended that Respondent not only was unwilling to put its
own proposal on the table but also would settle only on
its own terms A month later, on August 26, the parties
again met at FMCS, and this time both came to the
table The Union made a new proposal, which reflected
matters tentatively agreed upon in past negotiations and
agreements which the Umon had not agreed to before,
33 Long after the Union had filed its charge in Case 1-CA-19958 alleg-
ing that Respondent had unilaterally Implemented its proposals, Jocelyn
wrote to Thayer on December 9, 1982, that, despite the earlier notifica-
tions, Respondent had not corrected any incorrect standards or imple-
mented it's eligibility rule for holiday pay and had complied with past
practices regarding assignment of work dunng vacation periods Re-
spondent had used "sparingly" the proposal regarding supervisors doing
bargaining unit work, which did not deprive individuals of reinstatement
or recall from layoff, and Respondent had terminated employees between
their 90th and 120th days of employment Jocelyn rescinded the imple-
mentation of these proposals, said that he was ready to bargain, and
agreed to provide the Union with the names of those employees who had
been terminated after their 90th day of employment, to entertain any
grievance filed on their behalf, and to waive any defense that the em-
ployees were probationary
and from which were missing proposals which the Union
had previously made but Repondent had consistently re-
jected Jocelyn was cautious in his response although he
had read the union new seniority proposal, he had not
had an opportunity to study it However, it appeared to
be a companywide seniority provision, which the Union
knew in March was not acceptable, and he felt that the
new proposal moved the parties even further from what
Respondent wanted Thayer argued that Respondent's
subsidiary, which was located in the Midwest, had re-
cently negotiated the seniority system that the Union
now proposed Jocelyn promised to respond to the pro-
posal at the next meeting
On September 2, Jocelyn responded to the Union's
proposal He noted the absence of any proposals about
sympathy strikes and supervisors doing bargaining unit
work He said that the Union wanted now to eliminate
the contract's product cost measurement plan, which Re-
spondent had never proposed and did not want to elimi-
nate Jocelyn said that the provision was important to
Respondent to gauge employees' performance and to
price products He cntimzed the Union's proposal for
plantwide seniority as emanating from the contract of a
, company which not only manufactured one product but
also employed only 160 employees, about one-tenth of
Respondent's complement What was workable there,
with bumping and job bidding, had no bearing on an op-
eration of Respondent's size, and the proposal moved the
parties further apart Jocelyn argued that Respondent
always had the right to lay off employees, albeit subject
to certain rules, but at least employees would be laid off
Under the Union's new proposal, an employee who was
laid off would have the right to bump any less senior
employee, plantwide Under the new proposal, an em-
ployee could change his shift every 6 months Respond-
ent's employees never had that right One of the recur-
ring issues of these negotiations was Respondent's pro-
posal that an employee could accrue seniority even while
serving as a supervisor Thayer previously wanted to
freeze that employee's seniority, and Respondent reject-
ed that Now, Thayer's new proposal would have elimi-
nated the employee's seniority after 2 years There were
other differences, and Jocelyn was astonished that
Thayer would even make such an offer
Thayer replied that he had tried every type of propos-
al to satisfy Respondent's claim that it wanted flexibility'
and, if nothing could satisfy Respondent and if Respond-
ent's proposal remained the same, then the parties were
at an impasse Jocelyn said that Respondent had no inter-
est in companywide seniority, it preferred departmental
seniority, and, because there was a mix of products be-
tween the industrial products and the machine tool divi-
sions, he had no desire to move employees between divi-
sions Jocelyn suggested that both sides look at and pos-
sibly rethink their positions and, if anyone thought of
any bright ideas, he should contact the mediators
Apparently, no one had any original thoughts The
strike continued, and the parties met sporadically late in
1982 to discuss particular changes that Resopondent was
thinking about implemetmg On September 9 and 15 they
discussed subcontracting and the transfer of work be-
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween seniority groups, as provided in the expired agree-
ment On November 18 they met to discuss subcontact-
mg and the closing of the Greystone facility They met
on December 8, because Christmas vacation was soon
approaching, and Jocelyn had notified Thayer that Re-
spondent intended to change the vacation dates and
wanted to know whether the Union wished to negotiate
Jocelyn then proposed to close a half day on December
24, and, if the employees worked the half day, to pay
them for a full day, and the plant would close on De-
cember 27-31 Thayer replied that this was one of the
Union's strike issues He was unwilling to negotiate por-
tions of Respondent's withdrawn offer that Respondent,
by threatening to implement them, wanted to discuss
from time to tune Instead, he felt that Respondent
should place a full and comprehensive proposal on the
table Jocelyn refused to commit himself to making such
an offer The rest of the meeting was devoted to Re-
spondent's notice to the Union of its intention to close its
Greystone facility It was later closed
During the latter part of 1982, the parties also engaged
in written communication By letter dated September 13,
Thayer asked Jocelyn for all copies of any transfers nor-
mally supplied to the Umon under the terms of the ex-
pired contract, upgradings of employees, and any letters
of termination It was only after the Umon filed unfair
labor practice charges and after the investigation of them
began that Respondent supplied some notices of transfers
and upgradmgs, but Respondent removed the names of
the employees affected by the actions Before the strike,
Respondent had given to the Union weekly a separation
report listing who left its employ, either by quit or tenm-
nation Respondent had not given reports to the Union
after the strike began, but Jocelyn testified that Respond-
ent had not prepared any reports, and I have no reason
to suspect that his testimony is inaccurate
In a letter dated September 14, Jocelyn replied that
the information regarding transfers and upgradmgs
would not be supplied because "that would necessarily
require disclosure of the names of employees currently
working at the plant" He said that this position had been
upheld by the Board's Regional Office, which had ap-
proved Respondent's practice of refusing to state the
names and addresses of replacement employees, and,
since then, Respondent never supplied them to the
Union 34 Respondent, however, supplied reports of disci-
pline, with the names of the employees, when the disci-
pline involved employees who had worked for Respond-
ent before the strike
The parties did not meet again, except to discuss vari-
ous of Respondent's proposed changes of conditions of
employment, until the summer of 1983 Their meeting
was a result of substantial effort by Thayer, who urged
Jocelyn to submit another written proposal after the De-
cember 8, 1982 bargaining session That day, Thayer
wrote Jocelyn that the Union did not decline to discuss
the vacation shutdown, but felt that it must receive a full
proposal containing all of Respondent's modifications so
34 In one senes of letters, Respondent represented that the employee
dud not want him name divulged to the Union and that he was offered
union representation, which he declined
that it could fully and intelligently address the outstand-
ing issues On December 23 Jocelyn replied that he
ought not prepare a new proposal, "a rather major un-
dertaking," unless the Union was willing to agree to Re-
spondent's proposals not to replace its replacement em-
ployees, to discharge those employees accused of serious
misconduct during the strike, and to be reimbursed for
property damage incurred during the strike The ex-
change of letters continued into January and February,
with accusations being made by Jocelyn that Thayer was
only trying to set up Respondent for the filing of more
unfair labor practices charges Finally, on February 18,
1983, Jocelyn agreed to prepare a full and comprehen-
sive proposal 35
Thayer should have expected what Jocelyn delivered
on June 25 Jocelyn had written to him on February 18,
1983
We intend to utilize what we perceive to be
our present bargaining power, to persuade you to
give us an agreement which will undo generations
of restncitive language and practices and equip us,
in terms of flexibility and discretion, to respond to
an eventual upswing in a way which would never
have been possible under the expired Agreement or
any proposal we have made to date
Jocelyn's proposal was solely for the production and
maintenance unit, the proposal for the office clencals
was to follow shortly Before explaining the proposal,
Jocelyn reviewed the history of the entire dispute, in-
cluding Respondent's hiring of replacements, its making
of the March 9, 1982 proposal with the caveat that he
had other proposals that he was not making at that time,
the Union's development of new tactics, including its
massive demonstrations and its picketing of the places of
business of Respondent's directors, the strike's effect on
Respondent, with an emphasis on the Union's alleged
vandalism and character assassination, the financial loss
incurred by Respondent, and the expenses of training
new employees, repairing property that had been dam-
aged, and hiring security personnel
He then reviewed Respondent's proposal, which in-
cluded the elimination of all past practices and stipula-
tions and the union shop, Respondent could unilaterally
establish measurment standards or amend or abolish
them, without recourse to arbitration, the elimination of
tmiestudies, Respondent would designate the dates of the
summer and Christmas shutdown with 10 weeks' notice,
and cancel or reschedule the shutdowns, without any
notice, vacation pay would be based on a percentage of
an employee's straight time earnings during the prior
year, elimination of all semonty, revision of wage scales,
so that employees would be paid different amounts de-
pending on whether they were inexperienced new hires,
experienced new hires or transferees, or promoted em-
ployees, a one-time 11-percent wage increase, with no
35 While the parties were exchanging this correspondence, the parties
met on January 12 to discuss a new seniority group which Respondent
wanted to create in its industrial products division
BROWN & SHARPE MFG CO

609
expiration date for the contract," the pension plan
would remain at $9 per month, per year of service, and
Respondent would pay a specified amount for health
coverage, and the employees, who had never been re-
quired to contribute before, would pay the remainder, in-
cludmg any increases during the contract
Jocelyn summarized that business was "absolutely ter-
rible" and "bombing" Respondent had furloughed 200
management employees The plant was running at about
64 percent of capacity He had hopes that business
would pick up in the fourth quarter, but in the meantime
Respondent reported losses of $12 million, and the strike
cost it more than that Respondent spent $26 million on
security alone Some product lines were destroyed, some
by Respondent's inability to deliver, some by the strike,
and some by the economy The only good thing to
report was that the Japanese were not penetrating the
market but were waiting for the recession to end But
they were still present, and still competitive
On July 15, the Union responded with its counterpro-
posal, which showed no readiness to surrender Thayer
highlighted some of the proposals a 3-year agreement,
with yearly wage increases of 11, 10, and 9 percent, one
increase in the pension to $10, and one increase in life
insurance, from $9000 to $10,000 coverage On other
matters previously proposed by Jocelyn, Thayer said
that he wanted to discuss them Jocelyn excepted to
Thayer's failure to propose specific language on certain
provisions, notably semonty Thayer's proposal regard-
ing that issue of critical importance to Respondent was
only "discuss and negotiate" Jocelyn indicated that he
was unsure how he wanted to proceed with the negotia-
tions, but he agreed to review the Union's proposal
The parties next met on August 25, and Jocelyn an-
nounced that he considered the Union's proposal incom-
plete and could not understand why Thayer requested
that he put together a complete proposal Thayer an-
swered that Jocelyn had proposed some new concept
which the parties needed to explore Jocelyn said that
the parties were "miles apart" and he did not know how
to convince the Umon that Respondent was sincere and
that it was fighting for its survival The discussion con-
tinued, questions were asked and answered, and the par-
ties resolved nothing On September 2, the Union offered
specific language on some proposals that it had previous-
ly submitted as "discuss and negotiate" It finally agreed
to Respondent's proosal of mandatory transfers, a move
that might have had more significance had the Union
agreed to Respondent's current proposal However, what
the Union agreed to was the proposal that Respondent
made in March 1982, and that proposal was no longer
being offered by Respondent In addition, the Union re-
verted to its proposal of occupational classifications, a
proposal which had been rejected by Respondent in
March 1982 Jocelyn wanted additional time to consider
whether he could integrate certain of the new proposals
with Respondent's, but he cautioned that there was "a
big gap" Thayer insisted that the best way to close the
gap was to start a dialogue about what Respondent
*a This was not a firm proposal for the duration of the contract Joce-
lyn stated that he was not proposing a duration at that time
wanted to attain, but Jocelyn restated that he would ex-
amine the proposals, and the meeting adjourned
On September 13, the parties met again, and Jocelyn
said that the gap that he had perceived was present, that
the Union's proposals did not answer his, and that the
parties were more "miles apart" than they had been in
March Jocelyn said that Respondent won the strike and
there was no reason that it should settle on the Union's
terms Instead, the Union should settle on Respondent's
terms If the Union wanted to do that, it was free to do
so, if not, there was no point in further negotiations
The last negotiations took place on September 30 and
October 4, 5, and 18 The parties have not met since
then These meetings involved solely Respondent's inten-
tion to implement changes in its health care program so
that those employees who took early retirement could no
longer opt to be covered under Respondent's Blue Cross-
Blue Shield plan by paying the rate paid by Respondent
The 106 employees on strike had applied for early retire-
ment, and Jocelyn said that their coverage under Re-
spondent's rate would cost Respondent money The
change took effect in November or December
At about this time, or shortly after, the parties were
advised that General Counsel Lubbers had ordered the
issuance of the complaint in this proceeding On October
24, 1983, Thayer made an unconditional written offer to
return to work on behalf of all the striking employees
and that day withdrew the Union's picket line Receiving
no reply, Thayer wrote again on October 28, asking Jo-
celyn to review the earlier letter On November 1, Joce-
lyn replied, accepting Thayer's offer However, he ad-
vised that there were "virtually no positions currently
available" and advised further that the employees had
been placed on a preferential hiring list When positions
became available, they would be offered to qualified re-
turning strikers
There followed a series of letters between the parties
The Umon insisted that the strikers, as unfair labor prac-
tice strikers, should be immediately returned to their
former positions Respondent insisted that the strikers
were merely economic strikers, who would be rehired
only when vacancies occurred In addition, Respondent
insisted that returning strikers were entitled to reinstate-
ment only upon their passing a physical examination Fi-
nally, on November 1, Jocelyn stated his willingness to
resume negotiations, but, with the unfair labor practice
complaint soon to issue, Thayer, in this and later ex-
changes of correspondence, now insisted that the Union
would be willing to negotiate only upon the immediate
reinstatement of the strikers He took the same position
in answer to Jocelyn's request for discussion of an inter-
im wage increase and the conclusion of discussions on
the early retirement conversion option Furthermore,
Thayer agreed to bargain about the implementation of
these proposals only if they were part of the total pack-
age, but Jocelyn contended that he had a nght to discuss
the two issues alone However, if the Union wished to
present a total package, it was free to do so The parties
remained deadlocked, and the Union, now finding
strength in its budding and hopefully successful unfair
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
labor practice proceeding, resumed picketmg in late De-
cember
IV ANALYSIS AND CONCLUSIONS
A Surface Bargaining
Section 8(a)(5) of the Act requires that parties to nego-
tiations have a sincere desire to reach an agreement
NLRB v Insurance Agents, 361 U S 477, 485, 489 (1960),
General Electric Co, 150 NLRB 192, 268 (1964), enfd
418 F 2d 736 (2d Cu 1969) A sincere desire to agree,
however, does not meant that a party may not engage in
hard bargaining or must accede to the desires of the
other party Section 8(d) of the Act provides that the ob-
ligation to bargain in good faith "does not compel either
party to agree to a proposal or require the making of a
concession" The Board has said "A party is entitled to
stand firm on a position if he reasonably believes that it
is fair and proper or that he has sufficient bargaining
strength to force the other party to agree" Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984), citing
NLRB v Advanced Business Forms Corp, 474 F 2d 457,
467 (2d Cu 1973)
The antithesis of bargaining in good faith is surface
bargaining In that instance, a party simply attempts to
make it appear that it is willing to reach an agreement,
although it has no intention to do so The Board has held
that although adamant insistence on a bargaining position
is not of itself a refusal to bargain, the following conduct
is indicative of bad faith "delaying tactics, unreasonable
bargaining demands, unilateral changes in mandatory
subjects of bargaining, efforts to bypass the union, failure
- to designate an agent with sufficient bargaining author-
ity, withdrawal of already-agreed upon provisions, and
arbitrary scheduling of meetings" Atlanta Hilton, 271
NLRB at 1603 (footnotes omitted)
The original complaint contained a miscellany of this
conduct, plus numerous other examples of alleged bad
faith In their totality, they may have presented at least a
more involved factual basis to support a finding of sur-
face bargaining However, all that remains is an emascu-
lated complaint containing two allegations from which I
am urged to find a totality of conduct that Respondent
did not sincerely desire an agreement with the Union
The first is that Respondent made no counterproposal
from March 28, 1982, through May 1983 The second is
that, when at last Respondent made a counterproposal in
June 1983, it was regressive and predictably unaccept-
able The General Counsel's brief does not explain why
the first allegtion violates the Act Rather, the brief re-
cites facts and law supporting all the dismissed allega-
tions and concludes that the strike was an unfair labor
practice stnke from its inception" Then, it contends
"The brief states
In summary, Respondent, by its overall pattern of bargaining,
namely, predetermined set of proposals which were not critical, its
disruptive bargaining tactics (declaring an Impasse, cancelling a
meeting, setting deadlines for the completion of negotiations), its fail-
ure to present an economic package including a pension plan until
the very end of negotiations, its communications with its employee[s]
engaged in bargaining with no sincere desire to reach agreement and
therefore violated Section 8(a)(5) of the Act [Footnote omitted ]
that Respondent's March 1982 proposal (which is not al-
leged in the complaint) was regressive and predictably
unacceptable to the Union, that this prolonged the strike,
as did Respondent's advice to the Union that it intended
to implement various changes in terms and conditions of
employeement, and that—and I quote the argument in its
entirety—"the bargaining in the summer of 1982 was a
continuation of Respondent's course of conduct bad faith
bargainging especially in light of Respondent's refusal to
make a proposal" (Emphasis added )
The General Counsel and the Union do not claim that
there was no impasse The contend only that the impasse
was caused by Respondent's bad-faith bargaining prior to
the strike and the applicable 10(b) period Because of my
Duncane Heating order, I cannot treat the impasse as one
caused by unfair labor practices I have previously found
that an impasse existed on October 18, 1981, when the
stnke began, and 4 months later, in late February 1982
Reviewing the negotiations after February 1982, I find
that the parties continued to be utterly stalemated and
that negotiations were fruitless Had it not been for the
violence which prompted Respondent to commence an
injunction action and the resultant state court order
which required the parties to return to negotiations, the
parties may well not have met in March 1982, so clear it
was to them how deeply divided they were Later nego-
tiations were sporadic and minimal Efforts of the FMCS
in the summer resulted in nominal new concessions by
the Union, but no major accomplishment on the abso-
lutes Although the Union made a new seniority propos-
al, that would have so altered the way Respondent could
do business that Thayer could not reasonably have ex-
pected that Respondent would agree to it No substan-
tive negotiations were held during the rest of 1982 The
only real activity in 1983 occurred when Respondent
presented its counterproposal, which now constitutes
part of the complaint The summer negotiations showed
no signs of a real chance for success
In attempting to ascertain whether further negotiations
were going to be fruitful, and limiting for the moment
my analysis solely to the two absolutes, I find that Joce-
lyn was never going to withdraw his proposals He had
earlier threatened that they must comprise part of the
overall settlement of the negotiations, and, although he
was prepared to revise his proposals to meet certain of
Thayer's objections and, in fact, did so, he saw no sense
in meeting with Thayer until Thayer indicated some
assent Until September 1983 Thayer, however, never
withdrew his fervent opposition to the elimination of ma-
chine seniority and job preference Although Jocelyn re-
peatedly asked Thayer to revise Respodent's proposals to
resolve any problems that he thought might arise,
Thayer did not do so
I am not blaming Thayer Thayer expressed in No-
vember 1981 that the Union was on strike only because
of Respondent's proposals, and not the Union's He had
the right to maintain and continue his opposition To
him, the absolutes constituted Repsondent's attack on the
little seniority protection that the Umon provided to its
older members Thayer was not going to risk that loss
There was nothing in Jocelyn's proposal Thayer could
BROWN & SHARPE MFG CO 611
rewrite to salvage something for his members Respond-
ent's proposal either was or it was not Only if it "was
not" was it acceptable, if it "was" there was nothing to
talk about So firm was his distaste for the mandatory
transfer clause that Thayer rejected Jocelyn's revision to
permit the Union the unilateral right to veto any transfer
pending review by an arbitrator Respondent had no
right to transfer any employee against his or her will,
and the Union was not going to permit an arbitrator to
approve such transfer To Thayer, there was no reason,
not even a valid, legitimate, and business-justified reason,
that should permit Respondent to force an employee to
transfer against his will
At least that was Thayer's position until the summer of
1983, when he finally agreed to Jocelyn's proposal made
and withdrawn almost a year and a half before By then,
of course, Jocelyn was no longer willing to give Thayer
some of the protections contained in the prior offer,
which Jocelyn had revised to meet certain of Thayer's
objections In that respect, Thayer simply accepted man-
datory transfers too late As to machine seniority and job
preference, Thayer never accepted it at all The dispute
involving that proposal contmued throughout all negotia-
tions and never showed any sign of resolution
Admittedly, these were the only two issues in the ne-
gotiations Because the parties were never able to resolve
them, they were never able to reach a variety of other
issues which appeared to be major stumbling blocks The
provisions of a strike settlement agreement, including the
thorny issue of the reinstatement of strikers, surely
would have created problems My sampling of Thayer's
reactions shows how little he thought of certain of Re-
spondent's proposals and how he projected that the
Union's membership would reject those proposals I find
that Thayer thought that bargaining was fruitless and
futile
Respondent's view was the same In a meeting in Oc-
tober 1982 with a committee of Respondent's representa-
tives, Governor Garrahy said that he had attended an
AFL-CIO meeting where he had been given a hard time
about the strike He hoped to resolve it Jocelyn told him
that prospects for a settlement were "virtually " Re-
spondent was suffering business reversals and had begun
layoffs The Union was relying on the Waterman charge
for salvation It had nothing to gain by ending its strike
The strikers would be giving up their weekly strike ben-
efits, and there were no vacancies for strikers to fill I
conclude that the parties correctly understood that they
were at an impasse and that additional negotiations
would not be fruitful, as in fact they proved not to be 38
The first component of Respondent's alleged surface
bargaining is that Respondent made no counterproposal
after March 17, 1982, while an impasse existed The Gen-
eral Counsel's brief omits any authority to support her
theory that Respondent violated the Act, and there is un-
38 The views of the mediators support my conclusion Calderone was
aware that the absolutes could not be resolved unless the Union agreed to
them or Respondent withdrew them He also knew that neither party
was prepared to change its position For example, when It became evi-
dent in March 1982 that Respondent would not agree to the Union's new
semonty proposal, Calderone told the parties that he saw no point in
continuing to talk about any of the other issues
doubtedly good reason The very existence of an impasse
means that there is no real hope that, without substantial
and meaningful movement, the parties can reach an un-
derstanding What the complaint seeks is a ruling that a
party must attempt to break an impasse by making new
offers No one has ever imposed such an obligation upon
parties to collective bargaining, because it is a finding
that one of the parties has a duty to yield on its position
However, Section 8(d) states, and it has always been un-
derstood to mean what it says, that no one, not Respond-
ent here, and not the Union, either, had to make any
concession
What is remarkable about this alleged component of
surface bargaining is that it seeks to invalidate the very
concept of an impasse If approved, the complaint dic-
tates that a party has the duty to do something to pre-
vent an impasse from occurring 39 However, the Board
has instructed that "parties' duty to bargain during im-
passe is suspended pending a change in circumstances"
J Hofert Co, 269 NLRB 520, 522 (1984) Once Respond-
ent withdrew its final proposal in March 1982, it "was
under no legal obligation to put forth a new proposal
regardless of whether the final proposal was explic-
itly withdrawn" Id 49 The General Counsel's theory di-
rectly contradicts this authority, as well as common
sense I find that it lacks merit
The second component of the surface bargaining com-
plaint, the regressive and predictably unacceptable pro-
posal of June 1983, has equally little appeal Collective
bargaining depends on not only reasoned consideration
of various arguments but also the parties' needs and de-
sires A party is free to take any bargaining stance which
reflects its preception of its needs and bargaining
strength at the time "An employer is entitled to advance
a position smcercely held, notwithstanding the employ-
er's having taken a different position at an earlier time"
Atlas Metal Parts Co v NLRB, 660 F 2d 304, 308 (7th
Cir 1981) (footnote omitted)
The stnke was more than 20 months old on June 25,
1983, when Respondent made its allegedly regressive
proposal Because of the impasse over the absolutes, the
negotiations since the beginning of the strike were spo-
radic There were some discussions immediately after the
beginning of the strike and stretching into November
1981 There was some movement toward reconciling the
positions of the parties regarding the absolutes, but Joce-
lyn did not move far enough to placate the Union The
December 1981 efforts of a "think tank" resolved noth-
ing when Thayer changed his position on the effects of
job ranking Thereafter, the principal negotiations took
38 The theory of the complaint would support a finding that the Union
was equally guilty of surface bargaining because it refused to agree to the
absolutes
40 The General Counsel suggests that it was somehow unfair or even
illegal for Respondent to withdraw any of its offers at any time or to set
a deadline on them That suggestion is unsupported and Inaccurate The
reason why a party should be permitted to place a deadline on an offer
or withdraw It is that the Board's rules of contract law are qiute different
from the technical rules of common law A party may accept an offer
months after it was made, even when that party earlier responded with
counterproposals and rejections and only later accepted the offer Curtin
Matheson Scientific, 287 NLRB 350 (1987), see generally Pepsi-Cola Bot-
tling Co v NLRB, 659 F 2d 87 (8th Cir 1981)
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
place in March 1982, and those sessions resulted solely
because the state court judge who was considering Re-
spondent's injunction application ordered the parties to
resume their negotiations
Those negotiations brought the parties no closer The
absolutes remained a fundamental difference, with no
real hope of resolution A stnke settlement agreement
became a massive problem The resolution of the rehir-
ing of the strikers or the continued employment of the
replacements never came close to resolution Additional
problems resulted from Respondent's alleged experiences
learned during the strike, such as supervisors working on
unit work Thayer said that he would never agree to
them And the problems grew, and the number and qual-
ity of the differences between the parties became greater
Their dispute broadkned, rather than lessened
By November 1982 the parties could not agree upon
the scope of what they should be talking about Jocelyn
wanted to discuss the changes that he wanted to imple-
ment, while Thayer wanted to discuss the proposed
changes in the context of the entire agreement Thayer
urged Jocelyn to make a new proposal However, Joce-
lyn did not want to expend that effort unles he could
have some assurance that Thayer was willing to settle
some of the issues which resulted from the strike De-
spite Thayer's refusal to commit himself, Jocelyn finally
gave the Union a complete proposal, as Thayer had re-
quested Respondent had won the stnke, but it had lost
business and money and had paid for its strike expenses
Under the Act, Respondent was entitled to consider
what it had suffered during the strike, take a hard look at
its bargaining strength, and change its demands accord-
ingly O'Malley Lumber Co, 234 NLRB 1171, 1179-1180
(1978), L W Le Fort Co, 290 NLRB 345 (1988) Once
it determined that the Union had lost the strike, Re-
spondent could capitalize on its new-found economic
strength to "retrieve some of the economic benefits that
it lost in the prior contracts" without violating the Act
World Publishing Co, 220 NLRB 1065, 1071 (1975), enfd
sub nom Omaha Typographical Union v NLRB, 545 F 2d
1138 (8th Cir 1976) "A strike is a two-edged sword
Depending upon how it affects the employer's oper-
ations, the strikers may gain concessions or they may
lose concessions previously obtained" Hickmbotham
Bros Ltd, 254 NLRB 96, 102 (1981) And Respondent
had the nght to impose a deadline on the time that the
Union had to accept it Barry- Wehmiller Co, 271 NLRB
471, 472 fn 7 (1984), J Hofert Co, supra See also Hen-
drick Mfg Co, 287 NLRB 310 (1987)
If Respondent had the right to retrieve what it had
lost in prior negotiations and concessions it had earlier
given and make changes in accord with what it learned
aunng the strike, then its proposals, even if regressive,
do not violate the Act To prove a violation of the Act,
the General Counsel must show that Respondent's June
proposals were "of such a nature as to warrant the con-
clusion that they were intended to frustrate meaningful
bargiumng " Pipe Line Development Co, 272 NLRB 48,
49 (1984) The ensuing negotiations, however, never fo-
cused on Respondent's proposals Instead, Thayer, per-
haps mindlessly or perhaps with much thought, because
he had no solution to the problem posed by the abso-
lutes, other than rejection, offered a counterproposal
which, on the central issue of the absolutes, stated that
the parties should discuss and negotiate them Jocelyn
immediately made an issue out of Thayer's lack of a
meaningful proposal after almost 2 years of negotiations
He properly directed the negotiations to the original
core of the parties' disagreement, the absolutes And
there, in the summer of 1983, the negotiations remained
The negotiators never began a full discussion of the new
proposals, such as the reduced wage offer, the open
shop, and all the other provisions that were arguably re-
gressive
As a result, I find no evidence that in offering them
Respondent was motivated by bad faith or an intent to
frustrate agreement Challenge-Cook Bros, 288 NLRB
387 (1988) Respondent exercised its right to use its eco-
nomic muscle in good faith to make up for what he per-
ceived were years of contractual strangulation Because
there were no meaningful negotiations about the new
proposals, I find no other evidence which proves that
Jocelyn made the proposals vindictively or that Re-
spondent was wedded to its entire offer Hickinbotham
Bros Ltd, supra, 254 NLRB at 104, Barry- Wehmiller Co,
supra, 271 NLRB at 473 Finally, there was no proof
that Respondent's proposal, which it never wanted to
make because it was convinced that the Umon would not
agree to the issues that caused the strike, sidetracked the
negotiations and caused the negotiations to be unsuccess-
ful The negotiations had been unsuccessful for almost 2
years, without the June 1983 proposal Reliable Tool Co,
268 NLRB 101 (1983)
The General Counsel also alleges a violation by re-
peating what Thayer often said at the bargaining table,
that Respondent's proposal had no chance of being ac-
cepted by a self-respecting union, relying upon NLRB v
Reed & Prince Mfg Co. 205 F 2d 131 (1st Or 1953),
cert denied 346 US 887 (1953), Sweeney & Co, 176
NLRB 208, 212 (1969), modified 437 F 2d 1127 (5th Cir
1971) In Reichhold Chemicals, 277 NLRB 639, 640
(1985), the Board appeared to abandon any subjective
evaluation of bargaining proposals "The Board will not
attempt to evaluate the reasonableness of a party's bar-
gaining proposals, as distinguished from bargaining tac-
tics, in determining whether the party had bargained in
good faith" However, the Board, on "further reflec-
tion," concluded that the prior statement was "an impre-
cise description of the process the Board undertakes in
evaluating whether a party has engaged in good-faith
bargaimng " Reichhold Chemicals, 288 NLRB 69 (1988)
The Board continued
Specifically, the quoted sentence could lead to the
misconception that under no circumstances will the
Board consider the content of a party's proposal in
assessing the totality of its conduct during negotia-
tions On the contrary, we wish to emphasize that
in some cases specific proposals might become rele-
vant in determining whether a party had bargained
in bad faith The Board's earlier decision in this case
is not to be construed as suggesting that this Board
has precluded itself from reading the language of
BROWN & SHARPE MFG CO 613
contract proposals and examining insistence on ex-
treme proposals in certain situations
That we will read proposals does not mean, how-
ever, that we will decide that particular proposals
are either "acceptable" or "unacceptable" to a
party Instead, relying on the Board's cumulative in-
stitutional experience in administering the Act, we
shall continue to examine proposals when appropri-
ate and consider whether, on the basis of objective
factors, a demand is clearly designed to frustrate
agreement on a collective-bargaining contract The
Board's task in cases alleging bad-faith bargaining is
the often difficult one of determining a party's
intent from the aggregate of its conduct In per-
forming this task we will strive to avoid making
purely subjective judgements concemmg the sub-
stance of proposals [Footnote omitted ]
I find, therefore, that there is no legal justification for
the allegation that Respondent engaged in surface bar-
gaining because the Union, as a "self-respecting" union,
could not accept the absolutes Whether Respondent pro-
posed the absolutes to frustrate agreement would have
been a viable argument had it been raised timely, but it is
barred by my Ducane Heating ruling Whether the abso-
lutes are "extreme proposals" is also barred by Section
10(b) If that issue were not barred, I would find that the
provisions that would permit Respondent to transfer and
assign employees are not uncommon in collective-bar-
gaining agreements Furthermore, although the Union
adamantly opposed them, it finally agreed to one of the
mandatory transfer provisions proposed by Respondent
The Union was also willing at one time to eliminate se-
niority if Respondent would agree to the Union's job
ranking proposal Under these circumstances, I find that
the proposals are not "extreme" and that Respondent did
not violate the Act by proposing them 4 1
The General Counsel makes two other arguments The
first is that Respondent's offer was for a contract without
a term That is an unfair and unwarranted characteriza-
tion of what Jocelyn offered in June The Union's notes
show that Jocelyn said that he "was not proposing [a
contract duration] at this time" Respondent's notes state
that Jocelyn thought that the contact duration "will
depend on [the] contract" Jocelyn was obviously saying
that, depending on the substantive terms of what the par-
ties agreed to, he would propose a term of the contract
For example, I understood him to mean that, if the par-
ties agreed to one wage increase, 1-year agreement could
be negotiated If they agreed on two increases, a 2-year
term could be agreed upon In no sense did I understand
that Jocelyn was proposing a single wage increase in a
contract with no end
41 Jocelyn testified at some length about private conversation he had
with some officials of the Union's International organization in September
1983 There was a move, behind Thayer's back, to settle the strike based
on Jocelyn's June 25 offer, omitting the open-shop proposal A scheme
was adopted to undercut Thayer, but all efforts failed when General
Counsel Lubbers announced that he had authorized Issuance of a consoli-
dated complaint This testimony tends to show that Jocelyn made his
June 25 proposal not to frustrate agreement, but to obtain an agreement
He was almost successful
The second argument of the General Counsel, quoted
in its entirety, is that "[W]hen the Union made a coun-
terproposal it was completely rejected by the Respond-
ent [and Respondent failed] to even consider the Union's
proposal" I am not sure what this argument means The
brief says nothing more—no citations of authority, no
words of wisdom I do not even know how this relates
to what Respondent is charged with Finally, I do not
know what the General Counsel expected of Respond-
ent If the expectation was that Respondent should im-
mediately have made concessions, I have already reject-
ed that notion
The two major issues continued to the absolutes Al-
though the Union finally gave in to the idea of mandato-
ry transfers, it never agreed to Respondent's proposal on
job preference Instead, Thayer offered a proposal for a
massive revision of seniority principles which Respond-
ent had rejected almost 18 months before I know of no
reason that Respondent was required to pause before re-
jecting what appeared to be a badly calculated offer or
should not have had the immediate right to reject this
proposal After all, it had analyzed the proposal fully a
year and one-half year before Because of the lack of any
legal support in the brief, apparently the General Coun-
sel knows of no reason, either Finally, the exchange of
proposals in mid-1983 represented an attempt by the
Union to return to offers which had some validity when
the Union had greater bargammg strength Now, the
Union was weak and Respondent was capitalizing on
that weakness and its strength The Act permits it to do
so Rescar, Inc , 274 NLRB 1 (1985)
B The Refusals to Furnish Information
I have previously dismissed one allegation of the com-
plaint alleging that Respondent refused to furnish the
Union with certain information There are other similar
violations which remain in the complaint On September
13, 1982, Thayer requested that Respondent supply him
with copies of transfers normally supplied to the Union
under the terms of the expired collective-bargaining
agreement, copies of upgrading of employees, and copies
of any letters of termination of employees in the units
represented by the Union On September 21, 1982, Re-
spondent notified the Union that a returning striker, who
requested that Respondent not divulge his name, had
been suspended for 10 days On September 24, Thayer
demanded, among other things, the employee's name,
which Jocelyn refused to give
Jocelyn's refusal to supply that employee's name was
consistent with his refusal to supply the names of any of
the employees in the other documents that Thayer had
requested A bit of historical perspective is warranted by
letter dated March 1, 1982, the Union requested the
names and addresses of all replacement employees Re-
spondent, replying on April 6, 1982, declined to do so
because it would create a "clear and present danger to
the employees" The names and addresses of replace-
ments are prsumptively relevant, and the Union does not
have to particularize its need for such =formation
Trumbull Memorial Hospital, 288 NLRB 1429 (1988),
Bozzuto's, Inc , 275 NLRB 353 (1985), Georgetown Hoh-
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
day Inn, 235 NLRB 485, 486 (1978) However, when the
Union filed an unfair labor practice charge based on this
refusal Respondent argued before the Regional Director,
and convinced him, that no complaint should issue be-
cause the Union's picket line misconduct would lead to
violence to and harassment of the strike replacements
The Union's unfair labor practice charge in Case 1-CA-
19690 was dismissed, and the Office of Appeals affirmed
that decision
In response to the Union's letters m September 1982,
Respondent initially refused to supply any of the infor-
mation that the Union sought However, as part of an in-
formal settlement of the Union's unfair labor practice
charge, Respondent agreed to provide everything but the
names of the employees The General Counsel now
argues that the omissions of the names render the infor-
mation useless and that, in any event, it is well estab-
lished that there must be more than a speculative con-
cern on Respondent's part, there must be a clear and
present danger, citing Burkart Foam, 283 NLRB 351
(1987), enfd 848 F 2d 825 (7th Cir 1988), Safehte Glass,
283 NLRB 929, 948 fn 26 (1987)
The General Counsel contends that Respondent pro-
vided no evidence that the Union would harass the strike
replacements I disagree Jocelyn testified to two mass
demonstrations in which people were injured and prop-
erty was damaged He testified to an explosion of a van
He testified that Respondent twice brought injunction
actions against the Union Respondent filed an unfair
labor practice charge complaining of the violence, and
the General Counsel issued a complaint alleging 28 sepa-
rate incidents of 8(b)(1) conduct occurring from Febru-
ary 4 to June 3, 1982 The conduct complained of ranged
from threats of bodily harm to throwmg rocks and other
projectiles to arson and detonating explosive devices and
assault 42 The Union executed an informal settlement
agreement of the charge While the settlement does not
constitute a confession of liability, there was nonetheless
enough proof to convince the Regional Director to issue
a complaint
This is a sufficient showing of harassment of and vio-
lence against the strike replacements Most of the vio-
lence took place at or near Respondent's facilities Some
employees, however, were being harassed at their homes,
and some employees were assaulted at places where they
met to carpool The object was to stop current employ-
ees from breaking the strike, and it is logical to infer that
the Union was responsible At the hearing, the Union
42 On March 31, 1982, the state court found similar conduct committed
since March 4
damage to automobilies, threats, threats of physical violence, broken
windows, flying missiles One incident testified to, a six-inch boulder
or stone was thrown through a window in an occupied vehicle
There has been at least one fire, an attempt to block Ingress and
egress in North Kingstown by throwing debris on the road, pound-
ing on automobiles, nails in the highway, nails in tires And there is
no question in my mind of the extent and the horribly violent nature
of these facts, as I have determmed them to be The March 22 inci-
dent was chaos, anarchy, danger to hfe, and a condition that a civil-
ized society ought not be expected to endure
Nonetheless, the court was unable to find that the Union was responsible
for this conduct, despite its finding that Thayer was present at the picket
line daily, a fact that may well have convinced the Board of the Union's
liability
neither denied that the violence occurred nor that it was
responsible for the violence I find that Respondent had
a reasonable basis for believing that the Union was fos-
tering this violence There was, therefore, a clear and
present danger that the Union would continue its illegal
activities and a substantial reason for Respondent to
withhold the names of current employees I will, there-
fore, dismiss the complaint as it alleges that Respondent
violated Section 8(a)(5) by refusing to reveal the names
of current employees
However, there was no showing that the Union com-
mitted violence against employees who had been ternu-
nated There was obviously an attempt to disrupt Re-
spondent's business by preventing Respondent's employ-
ees from reporting to work There would be little pur-
pose for the Union to commit violence against those who
were no longer working for Respondent and who were
not reporting for work I, therefore, find no clear and
present danger that the Union would take action against
them and conclude that Respondent had no justification
for witholdmg their names 43 I conclude that Respond-
ent has violated the Act in this one respect
C The Unilateral Changes
I have recited various unilateral changes which consti-
tute allegations of the complaint Because there is no evi-
dence to the contrary, I credit Jocelyn's letter that stated
that some of those changes had not been implemented
There is still a legitimate claim of impropriety because
his letter constituted a threat to violate the Act In addi-
tion, I find that Respondent increased wages and other
benefits on or before April 6, 1982, and implemented an
interim wage increase on or about December 5, 1983 Fi-
nally, on or about November 23, 1983, Respondent an-
nounced that it was going to eliminate the early retiree
health plan conversion plan effective on November 30,
1983
I have found above that the parties had reached an
impass long before Respondent implemented these
changes It is well settled that, when there is an impasse,
an employer is free to change terms and conditions of
employment as long as those changes were reasonably
encompassed in its earlier rejected proposals, as they
were here NLRB v Katz, 369 U S 736, 745 (1962),
Western Publishing Co, 269 NLRB 355 (1984) The rule
applies to all the prompasse proposals, even if no im-
passe had occurred as to certain of the proposals which
were implemented Western Publishing Co, supra
The only facts presented which may distinguish this
proceeding from the ordinary one is that certain of the
implemented proposals had earlier been withdrawn I
find no cogent reason that Respondent should not be
permitted to do exactly what it did The Union had the
opportunity to accept a contract containing all the pro-
posals that Repsondent later implemented The Union
had the opportunity to discuss each of these proposals
and to persuade Respondent to offer a contract more to
43 By November 18, 1982, Respondent had agreed to settle the portion
of Case 1-CA-19958 relating to many of the Union's demands for infor-
mation and had given It the names of the employees who had been sus-
pended or terminated
BROWN & SHARPE MFG CO 615
the Union's liking It ultimately decided that Respond-
ent's proposal was insufficient The impasse continued,
and Respondent was entitled to withdraw its offer, was
under no duty to propose a different proposal, and could
make changes in working conditions so long as they did
not exceed what it had previously offered to the Union
J Hofert Co, 269 NLRB 520, 520-522 (1984), Taylor-
Winfield Corp, 225 NLRB 457, 463 (1976) For the same
reasons, Respondent did not violate the Act when it
granted the interim wage increase in December 1983
The Union had agreed to that wage increase more than a
year before, Respondent had made no better offer in the
interim, and the amount of a wage increase was never an
issue that separated the parties
The last unilateral change complained of was Re-
spondent's proposal to eliminate the health insurance for
retirees, a proposal which Respondent had discussed
with the Union as early as July 12, 1983, and at four
later negotiating sessions The Union consistently refused
to assent to this kind of relief unless it was a part of a
total settlement of the strike Because of the Union's po-
sition, the parties were once again at an impasse, and Re-
spondent was entitled to do what it did An even more
compelling reason is that Respondent, while agreeing to
talk about the issue, relied upon and never waived its
rights under Chemical Workers v Pittsburgh Glass, 404
U S 157 (1971) That holds that the bargammg obliga-
tion does not extend to the benefits of former employees
who have retired Respondent's brief represents that its
proposal affected only then retired employees I am not
convmced that this is wholly correct However, to the
extent it is, I conclude that Respondent did not violate
the Act by unilaterally changing benefits when it had no
obligation to bargain and the persons who were affected
by the change were not employees within the meaning of
the Act
Finally, Jocelyn raised both the interim wage increase
and the retirees' benefits issues throughout November
1983 and offered to bargain about them before imple-
mentmg his proposals It was Thayer who repeatedly re-
fused to negotiate about these changes unless all strikers
were first reinstated Accordmgly, I conclude that Re-
spondent never refused to negotiate about the implemen-
tation of these proposals, as the complaint alleges
D Condition for Reinstatement of Strikers
Commencing in mid-July 1982 Respondent condi-
tioned the reinstatement of strikers upon their taking and
passing a physical examination The complaint alleges
that commencing November 1, 1983, Respondent's con-
dition violated the Act Again, the General Counsel's
brief contains no supporting legal argument or citations
I find that under past practice Respondent conducted
physical examinations of employees who returned from
absences covered by Workmen's Compensation benefits
or leaves of absence exceeding 2 weeks By November
1983 the strike was more than 2 years old Because the
requirement for physical examinations applied to all em-
ployees after they had been absent from Respondent's
employ for 2 weeks, Respondent's attempt to impose the
requirement on returning strikers did not amount to
treating them as new employees Thus, it was not an ille-
gal condition for their reinstatement I find no violation
Aztec Bus Lines, 289 NLRB 1021 (1988) 44
E The Conversion of the Strikers
I have found that Respondent committed a single
unfair labor practice of refusing to give to the Union the
names of employees who were discharged The record is
barren of any suggestion that this conduct had any rela-
tionship to the continuation of the Union's strike Fur-
thermore, the Union never mentioned Respondent's re-
fusal to its members I conclude that the strike continued
solely because the Union could not reach an agreement
with Respondent and was attempting to exert economic
pressure to obtain an agreement containing more favor-
ble terms than what Respondent offered it At no time
was the strike converted into an unfair labor practice
strike
V THE EFFECT OF THE UNFAIR LABOR PRACTICE ON
COMMERCE
Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respond-
ent described in section II, above, have a close, mtunate,
and substantial relationship to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the
free flow thereof
VI THE REMEDY
Having found that Respondent has engaged in an
unfair labor practice within the meaning of Section
8(a)(1) and (5) of the Act, I shall recommend that it
cease and desist therefrom and post an appropriate
notice Because Respondent gave the Union the names of
the discharged employees in 1982, no affirmative remedy
is warranted
[Recommended Order omitted from publication ]
"Respondent contends that in March 1982 It proposed to conduct
physical examinations of its employees at any time Because the Union
rejected that proposal, Respondent argues that it was entitled to Imple-
ment it However, Respondent never gave the Umon notice that it in-
tended to implement this proposal, and there is no proof that the proposal
was ever implemented In addition, there was no showing that this provi-
sion was applied to any employees except returning strikers I reject this
defense