Commercial Candy

National Labor Relations Board - Board Decisions

Jun 12, 1989

294 N.L.R.B. 908 (N.L.R.B. 1989)

908 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
K-B Resources , Ltd., Inc., d/b/a Commercial Candy
Vending Division and Department Stores, Pack-
age, Grocery, Paperhouse , Liquor and Meat
Drivers , Helpers and Warehousemen, Local
Union No. 995, affiliated with International
Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America , AFL-CIO.'
Case 17-CA-11386
June 12, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND HIGGINS
On July 24, 1984, Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief.
The National Labor Relations Board has delegat-
ed -its authority in this proceeding to a three-
member panel.
The Board has considered the decision and
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings 2 and
conclusions3 only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Sec. 8(a)(5) and (1) of the Act by engaging in bar-
gaining with the Union without an intention of
reaching agreement, and that the Respondent's
conduct caused the employees to engage in a
strike. He also concluded that the Respondent vio-
lated Section 8(a)(3) and (1) by refusing to reinstate
striking employees on receipt of their unconditional
offer to return to work.
The Respondent excepts to the judge's charac-
terization of its conduct during the course of nego-
tiations and his finding that the strikers were enti-
tled to immediate reinstatement. We find merit to
the Respondent's exceptions.
Section 8(d) of the Act sets forth the parties'
mutual obligation to bargain in good faith, but
makes clear that "such obligation does not compel
' On November 1, 1987, the Teamsters International Union was read-
mitted to the AFL-CIO Accordingly, the caption has been amended to
reflect that change
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We agree with the judge's conclusion that the Respondent violated
Sec 8(a)(1) of the Act by engaging in direct dealing with employees in
an effort to persuade them to bypass the Union and negotiate a contract
with the Respondent's owner, Bond, the employees were further in-
formed that they would be better off without the Union because Bond
would never sign a union contract We have conformed the judge's rec-
ommended Order to these findings and conclusions
either party to agree to a proposal or require the
making of a concession." A party is entitled to
stand firm by a bargaining proposal legitimately
proffered.4 The Board is not permitted, under the
guise of finding bad faith, to require the employer
to contract in a way which the Board deems
proper,5 nor may the Board "directly or indirectly
compel concessions or otherwise sit in judgment
upon the substantive terms of collective bargaining
agreements."6
The key issue for determination in cases where
surface bargaining has been alleged, as here, is
whether the Respondent's approach to bargaining
demonstrated an unyielding rigidity during negotia-
tions that rendered collective bargaining a futility.7
It is necessary to scrutinize an employer's overall
conduct, both at and away from the bargaining
table, to determine whether it has bargained in
good faith.8
Applying these principles of law to the record
here, we find that the Respondent did not engage
in surface bargaining. The judge's finding that the
Respondent failed to bargain in good faith is pre-
mised largely on his subjective evaluation of the
Respondent's proposals, and fails to consider ade-
quately the totality of the circumstances.
At the outset, we note that there was no refusal
by the Respondent to meet with the Union, to
make concessions in its bargaining position, or to
provide adequate justification for its bargaining
posture. The Respondent met with the Union on
six occasions between July 1 and October 12, 1982.
There is no contention that it failed to meet at rea-
sonable times and places.9 Although the judge
found that the Respondent "rigidly adhered to pre-
dictably unacceptable proposals," an examination
of the Respondent's contract proposals establishes
that it modified or withdrew several of them in re-
sponse to concerns expressed by the Union.
A primary area of dispute during the course of
negotiations was the Respondent's wage proposal.
At the time negotiations began, employees were
earning $7.41 per hour. The Union initially pro-
posed a $5-per-hour increase in wages each year
over the 3-year life of the contract. The Respond-
ent proposed a change in the method of compensa-
tion, which would have given a guaranteed weekly
4 Cook Bros, 288 NLRB 387, 389 (1988)
5 NLRB v Herman Sausage Co., 275 F.2d 229, 231-232 (5th Cir 1960).
6 NLRB v American National Insurance Co, 343 U S 395, 404 (1952)
7 Borg-Warner Corp, 198 NLRB 726, 729-730 (1972)
8 Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984)
e Indeed, after negotiations had broken off, the Respondent, by mail-
gram dated October 18, 1982, indicated its willingness to engage in fur-
ther negotiations The Union did not respond to its offer We find no sup-
port in the record for the judge's characterization of the Respondent's
offer as a self-serving effort to cover its tracks by creating the impression
of a willingness to resume the negotiations (see judge's decision at fn. 2)
294 NLRB No. 82
COMMERCIAL CANDY VENDING DIVISION
base salary of $175 with a 3-percent commission on
nonperishable items i ° and a 1-cent commission on
each package of cigarettes. The Respondent did
not present its proposal as a request for a wage
concession. Rather, the Respondent indicated its
belief that the commission wage system would
result in increased earnings for employees.
The Union never requested any information
about or supporting data for the Respondent's
wage proposal.11 Although the Union lowered its
wage demands throughout the negotiations, it
never wavered from its position that employees be
paid on an hourly basis. Thus, the Union remained
as firm in its basic position regarding wages as did
the Respondent. On the whole record, the Re-
spondent's position on wages cannot fairly be said
to have been calculated to avoid reaching agree-
ment with the Union.
The judge found that the Respondent' s manage-
ment-rights clause proposal indicated a bad-faith
bargaining posture . It is not unlawful for an em-
ployer to propose and bargain concerning a broad
management-rights clause.12 The Board has found
bad-faith bargaining when the employer has insist-
ed on a broad management-rights clause and a no-
strike clause, while at the same time refusing to
agree to an effective grievance procedure.13 The
Respondent's proposal, however, did not except its
exercise of management rights from the purview of
the grievance procedure.14 Nor can it be said that
it was refusing to agree to an effective grievance
procedure.
10 The judge found that under the terms of the Respondent's wage
proposal, the definition of "non-perishable" would be left up to the Re-
spondent's owner Bond, with the result that he could severely restrict the
potential commission earnings of employees The record establishes that,
while the parties may not have come to complete agreement on the defi-
nition of that term, the Respondent did not anticipate leaving that defini-
tion to Bond's discretion Indeed, Bond testified that the term exempted
only sandwich and cold food items, which left the bulk of the Respond-
ent's products subject to the 3-percent commission
ii The judge apparently predicated his finding of bad faith in part on
the Respondent's failure to engage in "salesmanship" of its wage propos-
al He suggested various methods whereby the Respondent could have
made its wage proposal more attractive to the Union, including the pres-
entation of evidence to corroborate its belief that employees' wages could
be increased In point of fact, the Respondent's proposal was not a clear-
ly unreasonable plan to restructure the wage rate The Union took no ini-
tiative to examine the proposal , but instead adhered to its own economic
position The law does not require the Respondent to present its wage
proposal in any particular fashion , nor does it require it to make a wage
proposal that would be most appealing to the Union K Mart Corp, 242
NLRB 855, 876 (1979), enfd 626 F 2d 704 (9th Cir 1980)
12 American National Insurance Co, supra, Tritac Corp, 286 NLRB
426, 427 (1987)
is San Isabel Electric Services, 225 NLRB 1073, 1079 fn 7 (1976) See
also Htckinbotham Bros, 254 NLRB 96, 103 (1981)
14 The Union's primary objection to the Respondent's management-
rights proposal was the subcontracting provision The Respondent's chief
negotiator , Tate , repeatedly assured the Union 's representatives that if a
problem should arise in this area , the Union could grieve the matter
Thus, far from attempting to block the Union's access to the grievance
procedure , the Respondent was encouraging its use
909
That the Respondent made final agreement on
union-security and dues-deduction provisions con-
tingent on the Union's acceptance of its package
deal does not establish that it engaged in surface
bargaining. The judge found the Respondent's fail-
ure to include the dues-checkoff provision in its
final offer was indicative - of its intent to avoid
reaching agreement, discrediting the Respondent's
chief negotiator's testimony that such failure was
inadvertent. The Respondent was not required to
agree to the dues-checkoff provision;15 even so, it
is clear from its handwritten proposal of September
24, 1982, that the Respondent meant to include the
provision as part of its final package offer.
In its initial proposal, the Respondent informed
the Union that it was seeking an alternative pension
plan for its employees. The Respondent did not
submit its alternative plan until September 24, 1982,
because it was only then that the Union provided it
with the pension information it had earlier request-
ed. The Respondent proposed placing its current
pension contributions into Individual Retirement
Accounts; however, the Union refused to consider
that alternative. A review of the Respondent's pro-
posal and its reasons for advancing that-proposal
reveals that neither was calculated to frustrate bar-
gaining. Indeed, the Respondent's initial proposal
provided several pages documenting its concerns
with the present pension plan.16
Although the Respondent's wage proposal neces-
sarily involved a change in contractual language
relative to employees' hours of work, the Respond-
ent's position on hours was not inflexible. The Re-
spondent initially proposed a 40-hour workweek
scheduled on a regular basis during a 7-day
week.'' There was no provision for overtime pay
because of the Respondent's proposed conversion
to a commission system of wage payment. The Re-
spondent's position changed substantially by the
time it presented its final proposal, which provided
for overtime pay of time and one-half for work
performed in excess of 40 hours and for 4 hours'
guaranteed reporting pay. The final proposal also
promised to try to continue to schedule employees
for less than 40 hours each week and provided for
formal notification to the Union at least 3 days in
advance of scheduling changes.
15 Tritac Corp, supra
's The judge characterizes the Respondent's submission of a proposal
to change the existing pension plan as being indicative of its bad faith by
being proffered "without the slightest apparent concern over whether
that might not be a better subject for another time " Certainly, both par-
ties must be free to submit proposals on all proper bargaining subjects
without regard to a judge 's subjective analysis of appropriate bargaining
styles Pension plans are irrefutably appropriate subjects of bargaining
11 The former contract provided for a workweek of 5 consecutive
days, Monday through Friday, with overtime paid after 40 hours
910 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The Respondent' s initial proposal regarding holi-
days eliminated the employee's birthday as a float-
ing holiday. In response to the Union's demands,
the Respondent reinstated that provision.
Earlier contracts between the parties contained a
separate clause dealing with the discharge of em-
ployees. The Respondent initially proposed elimi-
nating that clause based on its reasoning that dis-
charge provisions belonged in the grievance proce-
dure. Its final proposal acceded to the Union's
demand for a separate contract discharge clause.
Although the Respondent initially proposed a
contractual provision dealing with the Union's re-
sponsibility with regard to the enforcement of the
contract, it withdrew that clause from succeeding
proposals as a result of the Union's opposition.
The Respondent initially proposed insertion of a
contract clause permitting supervisory employees
to perform bargaining unit work under certain con-
ditions. After discussing the proposal with the
Union's 'negotiating committee, the Respondent
withdrew the proposal from its final contract
terms.
The former contract provided for 12 days of sick
leave per year for employees. The Respondent ini-
tially proposed eliminating that provision and sub-
stituting a "wellness" program that provided that
employees could earn one-half day's pay for each
full calendar month in which they missed no work
for any reason. In its second offer, the Respondent
withdrew that proposal as a result of union opposi-
tion, and reinserted the former contract language.
Although the Respondent initially proposed
modifying the health and welfare provisions of the
contract, it eliminated those changes from its final
proposal. Also in response to union objections, the
Respondent withdrew reference to the no-strike
clause from its final grievance procedure proposal.
Finally, the Respondent's final offer accepted the
Union's proposal on funeral leave.
This review of the Respondent's bargaining posi-
tions amply demonstrates that they were not clear-
ly designed to frustrate agreement on a collective-
bargaining contract. The Respondent modified, re-
drafted, and withdrew proposals in major areas in
response to concerns expressed by the Union. It
also put forth legitimate business rationales and jus-
tifications in support of many of the changes it
sought. While setting forth the Respondent's initial
proposal in great detail, the judge failed to consider
adequately the Respondent's subsequent movement
relative to those proposals.18
Is In finding that the Respondent engaged in surface bargaining, the
judge apparently relied in part on the alleged failure of the Respondent
to provide the Union with a final contract for signature Assuming that
the Union did make such a request , the failure of the Respondent to per-
In sum , we find that the totality of the Respond-
ent's conduct throughout the negotiations demon-
strates hard bargaining at best; the evidence falls
short of establishing surface bargaining on the Re-
spondent's part. The parties met in frequent negoti-
ating sessions and the record reflects no conduct
by the Respondent away from the bargaining table
which would suggest that its bargaining positions
were taken in bad faith in order to frustrate agree-
ment on a contract. It appears that the judge at-
tempted to substitute his judgment for that of the
Respondent in assessing the appropriateness of the
substantive terms of its collective-bargaining pro-
posals. That the Board may not do.19 Accordingly,
we dismiss the 8(a)(5) allegations. It follows, and
we find, contrary to the judge, that the strike was
an economic stnke,20 and that the employees were
thus not entitled to reinstatement on their uncondi-
tional offer to return to work. We therefore also
dismiss the 8(a)(3) allegations.
CONCLUSIONS OF LAW
1. K-B Resources, Ltd., Inc., d/b/a Commercial
Candy Vending Division is an employer engaged
in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Department Stores, Package, Grocery, Paper-
house, Liquor and Meat Drivers, Helpers and War-
ehousemen, Local Union No. 955, affiliated with
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America,
AFL-CIO is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Since about July 15, 1975, the Union has been
the exclusive representative for the purposes of col-
lective bargaining of the employees in the follow-
ing unit:
All full-time and regular part-time vending
route salesmen employed by the Respondent at
the facility, excluding office clerical employ-
form this ministerial task cannot be considered a substantial factor dem-
onstrating bad faith in the circumstances of this case Union President
Larson admitted receipt of a copy of the Respondent 's final proposal on
October 12 , 1982 There is no evidence that there was any change in that
proposal between that date and the Union 's subsequent requests In these
circumstances, the Respondent 's alleged failure to provide an additional
copy of its final proposal cannot be used to establish surface bargaining
19 Tntac Corp, supra, 427
20 Although we agree with the judge that the Respondent violated
Sec 8(axl) of the Act in certain respects (see fn 2), we do not find such
violations sufficient to convert the strike to an unfair labor practice
strike The statements made by Route Supervisor Bicknell were made
well in advance of the strike to employees who were subsequently
present during negotiations There is no evidence that the conduct of the
Respondent which we have found in violation of the Act caused or pro-
longed the stake See Gilberton Coal Co., 291 NLRB 344, 348 (1988); All-
britton Communications, 271 NLRB 201, 207 (1984)
Inasmuch as we have found only violations of Sec , 8(a)(l) of the Act,
we have amended the judge's recommended order to provide for narrow
remedial language
COMMERCIAL CANDY VENDING DIVISION 911
ees, professional employees , guards and super-
visors as defined in the Act.
4. The Respondent did not violate Section
8(a)(5) and (1) of the Act by refusing to bargain in
good faith with the Union as the exclusive repre-
sentative of the employees in the above-described
unit.
5. From October 12 to November 8, 1982, the
Respondent's employees were engaged in an eco-
nomic strike.
6. The Respondent did not violate Section
8(a)(3) and (1) of the Act by denying employees
Jimmy Shadden, Donald Craig, Brian Sampson,
and Jimmy Harrigan reinstatement on November 8,
1982, on their unconditional offer to return to
work, and instead placing them on a preferential
hiring list.
7. The Respondent did not threaten employees
with reprisals because they requested that a super-
visor discontinue performing bargaining unit work.
8. The Respondent committed unfair labor prac-
tices in violation of Section 8(a)(1) of the Act by
engaging in direct dealing with employees in an
effort to persuade them to negotiate a contract
with the Respondent's owner and to bypass the
Union, and by informing employees that they
would be better off without the Union because
Bond would never sign a contract with the Union.
9. The above-described unfair labor practices
affect commerce within the meaning of Section
2(6) and (7) of the Act.
ORDER
dix."21 Copies of the notice, on forms provided by
the Regional Director for Region 17, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices `to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order, what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not found herein.
MEMBER HIGGINS , dissenting in part.
I agree with my colleagues and the judge that
the Respondent violated Section 8(a)(1) of the Act
when it dealt directly with employees in an effort
to convince them to bypass their Union and negoti-
ate a contract directly with its owner, Bond, and
by telling employees they would be better off with-
out a union because Bond would never sign, a
union contract. I cannot, however, join with my
colleagues in their finding that the Respondent bar-
gained in good faith with the Union: Rather, for
the reasons fully explained in his decision, I would
adopt with the judge's finding that, when viewed
in its entirety, the Respondent's conduct both at
and away from the bargaining table reveals that it
had no intentions of reaching any agreement with
the Union.
The National Labor Relations Board orders that
the Respondent, K-B Resources, Ltd., Inc., d/b/a
Commercial Candy Vending Division, Kansas City,
Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Engaging in direct dealings with employees
in an effort to persuade them to negotiate a con-
tract directly with the Respondent and to bypass
the Union.
(b) Informing employees that they would be
better off without a union because the Respondent
will never sign a contract with the Union.
(c) In any like or related manner interfering
with, restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its facility in Kansas City, Missouri,
copies of the attached notice marked "Appen-
2I If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered' us to post and abide by this notice.
WE WILL NOT engage in direct dealings with em-
ployees in an effort to persuade them to negotiate a
contract directly with us and to bypass Department
Stores, Package, Grocery, Paperhouse, Liquor and
Meat Drivers, Helpers and Warehousemen, Local
Union No. 955, affiliated with International Broth-
912 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, AFL-CIO.
WE WILL NOT inform employees that they would
be better off without the Union because we will
never sign a contract with the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
K-B RESOURCES, LTD., INC., D/B/A
COMMERCIAL CANDY VENDING DI-
VISION
Constance N. Traylor, Esq., for the General Counsel.
Michael P. Alden, Esq. and David McCarthy, Esq., of Lin-
coln, Nebraska, for the Respondent.
Robert L. Dameron, Esq., of Kansas City, Kansas, for the
Charging Party.
DECISION
out submitting any supporting evidence or argument at
the hearing or on brief. The record reflects that the
Union was certified in such capacity July 15, 1975-this
based upon the formal complaint allegation and Re-
spondent's express admission thereto. The record further
reflects that the Union has continued to actively serve in
such capacity, including during the course in negotia-
tions between the parties for a new contract July
through October 1982 as well as in the aftermath of
those negotiations, that is, attempts to secure strikers' re-
instatement and copies of a new contract in November
and December, the filing of the charges herein, and the
hearing in June 1983 wherein the Union as Charging
Party was represented by counsel who participated fully
on behalf of the union members' interests. In short, there
is no advanced or apparent support for Respondent's
denial to this allegation in the complaint and by all ac-
counts the Union, in fact, continued in its certified capac-
ity as exclusive collective-bargaining representative for
Respondent's employees at all relevant times. It is so
found.
STATEMENT OF THE CASE
HAROLD BERNARD, JR., Administrative Law Judge. I
heard this case in Kansas City, Kansas, on June 20, 21,
and 22, 1983, following charges (December.28, 1982, and
January 31, 1983) and issuance of the complaint (Febru-
ary 4, 1983) alleging that Respondent violated Section
8(a)(l), (3), and (5) of the Act during contract negotia-
tions between the parties from July to October 1982 by
engaging in threatening conduct and surface bargaining,
and by thereafter refusing to reinstate unfair labor prac-
tice strikers notwithstanding their unconditional offer to
return to employment on November 8, 1982.
FINDINGS AND CONCLUSIONS
I. JURISDICTION
Respondent operates a vending machine products dis-
tribution and supply business in Kansas City, Missouri,
its State of incorporation, and annually purchases goods
and services valued in excess of $50,000 directly from
sources outside Missouri in the course of such oper-
ations . I find, as Respondent admits, that it is an employ-
er engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act, and was certified as the exclu-
sive collective-bargaining representative of employees in
the following appropriate unit:
All full-time and regular part-time vending route
salesmen employed by the Respondent at the facili-
ty, EXCLUDING office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act.
Respondent, in its answer to complaint filed February
11, 1983, admitted the foregoing, that is, the Union's past
representative status, but denied that the Union had con-
tinued to be such representative in February 1983 with-
II. THE UNFAIR LABOR PRACTICES
Background
Respondent owner Gary Bond purchased the business
in May 1979, and when the then-existing contract be-
tween the predecessor to Bond and the Union ran out,
Bond signed a new agreement running from August 1979
to August 1982, which was similar to or the same as the
former agreement. The 4 route salesmen covered by the
contract serviced some 464 machines, which were
stocked with soda pop, snacks, cold and hot drinks,
canned food, dairy products, and cigarettes.
After the Union sent Bond a letter on June 4, reopen-
ing the parties' contract for negotiations looking to a
new agreement, the parties met on six occasions in the
following 4 months.
July 1-The Union's Opening Proposal
This 'meeting was held in Bond's office attended by
Union Representatives Bobbie Davidson and David Sim-
mons , Local 95 secretary-treasurer and business agent,
the four route salesmen , and Bond. The Union proposed
only 6 changes among the contract's 16 articles, asked
for discussion on uniform cleaning costs, and that a new
provision, concerning funeral leave, be added, content to
leaving all remaining articles the same. The Union's
opening proposals sought a new 3-year term in the par-
ties ' agreement, the addition of a single floating holiday
annually, deletion of the existing requirement that em-
ployees on sick leave provide a doctor 's slip , a wage in-
crease of $5 per hour in each of the following 3 years,
full company payment into health and welfare, and an in-
crease in the pension benefit.
Bond laughed off the proposals with the comment that
if he agreed, such would put him out of business, and the
meeting ended, having lasted only 20 to 25 minutes.
COMMERCIAL CANDY VENDING DIVISION 913
July 23-The Respondent's Proposal
This meeting, also at the Company's premises, was at-
tended by the same persons plus John Tate and David
McCarthy, attorneys skilled in labor relations practice
and representing Respondent. Tate set the tone for the
negotiations , informing the Union that the Company's
"vast number of proposed changes and modifications"
were brought about in part, by the Union's "fantastic fi-
nancial demands" stating further that "due to the Union
being unrealistic, we've decided we had better do some-
thing different."
Tate proceeded to read a 106-page proposal, describ-
ing the existing contract article language , usually fol-
lowed by his own commentary, philosophical or other-
wise, then the proposed modification followed once
more by personal commentary. (Jt. Exh. 4.) When he
was done, it was obvious the Respondent 's position
called for numerous , drastic changes in existing employ-
ee benefits, and rights established in the previous two
collective-bargaining agreements.
Wages
Thus, Tate proposed outright elimination of the exist-
ing wage system based upon an hourly rate which also
guaranteed employees an 8-hour day and minimum of 40
hours a week plus time and a half of the $7.41 rate for
overtime, and advanced in its place an incentive pay
system based upon commissions for certain sales plus a
base pay of $175 weekly.
Seniority
In place of an existing contract provision (art. 4) grant-
ing employees full seniority rights. "Seniority shall pre-
vail at all times based upon length of service and qualifi-
cations," Respondent proposed that seniority govern
only if the Company "deems" that skill, ability and pre-
vious experience are equal, adding the still further re-
striction "unless other business conditions [unspecified]
prevail." (Jt. Exh. 4, p. 13.)
Management Rights
Respondent proposed to include in the parties' agree-
ment a first -time management -rights clause delegating to
itself all-encompassing authority in or to specified areas
within the employer-employee relationship and work-
place sphere of activities. Thus, Tate's proposal claimed
management's retention of rights as follows-
ARTICLE-MANAGEMENT RIGHTS.
The Company shall retain the rights to manage
the plant and its business, including but not limited
to, the right to determine the length of the workday
and work week, the work rules and when overtime
shall be worked, to determine the starting and quit-
ting time and the number of hours and shifts to be
worked, to hire, promote, demote and transfer em-
ployees, to determine the qualifications, efficiency
and ability of employees, to determine the work
load performance level and to make or change rea-
sonable rules, regulations and practices; to close
down or move the business or any part thereof or
curtail operations ; to discontinue its business in
whole or in part and to sell or dispose of all or any
part of its assets and to participate in any form of
reorganization described in the Internal Revenue
Code; to control and regulate the use of machinery,
equipment and other property of the Company; to
determine the number of employees in each classifi-
cation; to introduce new or improved production
methods and products to be handled; and otherwise,
generally, to manage the operation and direct the
working force. The above rights are not all inclu-
sive, but enumerate by way of illustration the type
of rights which belong to the Company.
The Company shall also have the right to disci-
pline, reprimand, suspend or discharge employees
for gust cause, to subcontract work when necessary
and to layoff and recall employees; provided these
rights shall not be used to avoid the other provi-
sions of this Agreement.
Union Cooperation and Responsibility
Presented on the heels of the proposal on management
rights was another new provision expressly imposing
upon the Union responsibility to cooperate with the
Company to assure a full days' work from union mem-
bers, to actively combat "absenteeism and other practices
which restrict the efficient operation of the plant" and
that the Union's members shall give notice to the Com-
pany before absences. The clause further stated, that the
Union "will earnestly strive to improve and strengthen
good will between the Company and its employees, the
Union and the Public." (Jt. Exh. 4, p. 22.)
Union Security and Checkoff
Tate proposed to eliminate the union-security and
checkoff provision in the existing contract, article 12,
stating the Company would use it for leverage as a bar-
gaining tactic to get other items, yet then proceeding
into a long and drawn out philosophical attack on the ex-
isting clause, likening it at one point to the stenciling of
Jews in Germany , stating, "In a sense you are asking us
to `stencile' every employee union, before that employee
has a right to work for this Company." (Jt. Exh. 4, p.
37.) Tate's diatribe also labeled the union-security clause
un-American, and further stated, "Just because labor
unions have violently imposed their will on society in
the past is no reason at all today for this company to
agree to force, to enslave if you please, employees into
the labor union movement."
Inasmuch as Tate had earlier indicated that the Com-
pany was using the matter of the union-security clause
only as a chip in the bargaining process to gain other
items, it is not clear why he would engage in such an
intense prolonged attack on this contract provision, an
attack so vitriolic as to easily risk inflaming feelings at
the bargaining table and thereby obstructing the bargain-
ing process itself, unless this was of no concern to him, a
matter treated further below.
914 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
No-Strike Clause
The parties' existing contract clause expressly provid-
ed that, "it will not be a violation of their Contract for
employees to refuse to work where there is a strike,
lockout or picket line." approved by the Teamsters Joint
Council No. 56. At this session , Tate proposed a new
clause containing the language, "The Union agrees that
there shall be no strike, sympathy strike, slowdown,
picketing or other stoppages, suspension of, or interfer-
ence with the Company's work or business." The clause
deprived employees who particiapted therein of any re-
course to the grievance procedure or any other contract
provision except on the question whether the act took
place, and gave the Company the sole right of discipline,
including discharge of the employee. Respondent's clause
also omitted mention of the existing no-lockout provision
with an offer to make such a promise if the above no-
strike provision were accepted. (Jt. Exh 4, pp. 23, 41.)
The proposed clause also deleted subsidiary rights ac-
corded the Union in the event of strikes or resulting
damage and the like. (Art. 13, Jt. Exh. 1.)
of lower vacation benefits if business dropped along with
commissions connected to W-2 income for the year. In
addition, the proposal sought to lengthen time periods
between tenure-based benefit categories, eliminate the 5-
week benefit for 20-year employees altogether, and pro-
posed restricting summer vacations.
Pensions
Tate's proposal called for the existing Teamsters Cen-
tral States, Southeast and Southwest Areas Pension
Fund, contained in the parties' contract, Article 15-Pen-
sion , to be completely discarded, and replaced by new
proposals involving individual retirement accounts
(IRAs) to be jointly funded by employees and the Com-
pany, or, also a discontinuance of the Teamsters plan, an
alternative plan under which the Company would give
directly to employees only two-thirds of the present
company contribution to the fund, leaving them alone to
fend for themselves regarding any pension benefit, and
less well off due to Respondent's reduced contribution.
(Jt. Exh. 4, pp. 44-105.)
Supervisors and Bargaining Unit Work
Respondent proposed that there be no impediment to
what duties could be performed by its supervisors absent
layoff or loss of overtime situations in the course of busi-
ness operations, a departure from the existing protection
for unit employees in the current contract wherein it is
stated, "The Company agrees that no supervisor shall do
bargaining unit work." (Art. 12, Jt. Exh. I and Jt. Exh.
4, p. 24.)
Sick Leave
Respondent proposed to entirely discontinue any pay-
ments to employees off work due to illness, although the
then present benefit consisted of 12 days sick pay, there
was no dispute that Tate was told that only 1 employee
had been off 1 day sick that year, and the union proposal
had sought only the modest change that a doctor's slip
be eliminated from the requirement for receiving sick
pay. In its place, Respondent proposed a so-called well-
ness plan wherein employees could earn one-half day's
pay for each month the employees had missed no work
for any reason, amounting only to a 6-day benefit. (Jt.
Exh. 4, p. 30.) It contained no provision for employees
out sick and therefore the sick leave benefit protection
against pay lost due to accident or illness would be en-
tirely lost to employees.
Vacations
The company proposal was a drastic change from the
existing vacation benefit, inasmuch as it was to be based
upon 2 percent of the employee's W-2 shown compensa-
tion for the year, a figure tied, in turn, to the new incen-
tive pay plan based upon commission described above.
By contrast, the existing plan was based upon number of
weeks the employee was entitled to, given his years of
tenure, multiplied by that employee's weekly salary-a
definite sum and therefore an ascertainable amount the
employee could count on. Respondent's proposal had
strong elements of uncertainty and the admitted potential
Overtime
Respondent's negotiator also proposed that "over-
time" pay, a benefit lost to employees in its original form
wherein it was based upon time and one-half the $7.41
regular hourly rate yielding $11.12 (lost because Re-
spondent's wage incentive commission plan eliminated
the hourly pay scale for a commission plan), be reduced
to a prorata type computation against the $175 newly
proposed "base" weekly salary. This "overtime" propos-
al, unclear at best due to the Respondent' s emphasis on a
commission plus base pay plan, would yield a substantial-
ly lesser amount in overtime pay, that Is, only about
$6.57 per overtime hour, compared to the then current
$11.12 per overtime hour.
Hours
Respondent's proposal eliminated the guarantee of 8
hours a day, 40 hours a weekwork, as a corollary to the
proposed switchover to a commission-plus-base pay
system. The existing guarantee of 40 hours was omitted
from Respondent's proposal, and the Monday through
Friday definition of a workweek was eliminated by a
new definition, "the normal seven (7) day week." The
employees' then current protection against being called
back to work within 8 hours of having completed a tour
of duty was eliminated in Tate's commentary on the pro-
posed new clause. (Jt. Exh. 4, pp. 3-5.)
Probationary Period
The Company's proposal substantially lengthened the
probationary period from the existing 30 days to 120
days.
Health and Welfare
Tate stated there would be no increase in the Compa-
ny's contributions, rejecting the Union's proposal. He
also stated there should be lower contributions by the
Company if the person covered by the plan were single,
COMMERCIAL CANDY VENDING DIVISION
or if the person covered has a spouse who is covered
elsewhere, and declared he thought a plan other than the
Teamsters program' should be checked due to costs of
the former being so high, indicating investigations into
such were being made.
Holidays
Tate's proposals rejected the Union's request for an
additional holiday, sought to switch the "floating" holi-
day to a fixed date, and withdrew the paid holiday from
an employee out sick, a benefit accorded employees in
the current contract. (Jt. Exh 1, p. 2, Jt. Exh. 4, p 8.)
The proposal also withdrew holiday pay from any em-
ployee who had not yet completed the probationary
period, which was, as noted, extended three times longer
than the existing 30 to 120 days.
Other Subjects
Respondent further sought an express right by a con-
tract provision to administer polygraph tests to all em-
ployees at intermittent and unscheduled times, sought a
"tightening up" in the discharge-grievance procedure lan-
guage, and proposed to limit the Company's costs for
laundering uniforms to one-half, whereas the current
practice limited an employee's costs to $2.75 There were
no apparent or anticipated problems on the contract term,
3 years, the safety provision, and jury duty
The Third Meeting-August 24
This 2-hour meeting at Federal Mediation offices con-
sisted of the Union dropping its wage proposal in half-
from $5 an hour to $2.50, adhering to its positions on
hours, seniority, vacations, sick leave, grievance proce-
dure, and health and welfare benefits, as well as union
security and the existing no-strike contract language. The
Union also counterproposed a new offer on uniforms,
and reduced its pension payment benefits request.
Although Respondent made a proposal on funeral
leave, it took the position it could not negotiate a con-
tract without receiving information it had requested from
the Union the previous meeting on the existing pension
fund, and made no changes in any of the sweeping pro-
posals made during the second meeting.
The Fourth Meeting-September 2
Citing Respondent's intentions to seek cost reductions
and the need to "protect our future through limitations
in our contract," Tate refused to withdraw the Compa-
ny's proposal to delete the 40-hour a week, 8-hour week-
day guarantee, and 4-hour guarantee on call-in pay on
Saturday, notwithstanding Davidson's stated reasons in
justification for its continuance. Addressing only a single
concern expressed by the Union, which had manifested
general and specific disagreement with abolishing the
guarantee completely, as Respondent's proposal required,
Tate expressed a willingness to limit the required work-
week to 5 days if the Union would otherwise agree to
management's proposal. Since this "counterproposal" ad-
dressed a relatively minor potential disadvantage in the
Company's broadside rejection of the employees' guaran-
tee-a mainstay in the agreement at the time, it appears
915
to be a transparent bargaining "concession" tactic rather
than reflecting any appreciable flexibility in the Compa-
ny's position on its drastic proposal. The Union rejected
the proposal.
Respondent continued to oppose an extra holiday but
would allow the floating holiday then in existence to
continue to float providing the employee gave a week's
notice before its use; agreed to continue the same uni-
form allowance, but allow employees to clean their own
subject to discharge if the employee's uniform was not
cleaned and ironed properly; conditioned acceptance of
the Union's proposal regarding vacations on the stipula-
tion it would apply only to present employees and not to
any future employees; conditioned acceptance of the
"present" (not the Union's proposal) sick leave provision
on agreement "on everything else"; expressed the need
for more figures on health and welfare, and pressed its
request on the Union again for the information on the
pension.
In the major areas of importance wherein Respondent
sought far-reaching contract modifications described
above, including seniority, management rights, union co-
operation, unauthorized activity, supervisory work,
wages, vacations, union security and checkoff, and
hours, Respondent did not move.
The Union, citing problems over abuse in the use of
polygraph tests, problems arising from the proposed
elimination of the employees' seniority rights, problems
with the proposed management-rights clause's sweeping
scope, including its subcontracting clause, the risk of
injury to employees if required to cross picket lines pur-
suant to Respondent's unauthorized activity clause (no-
strike clause), the loss of vacation benefits under the va-
cation proposal made by Respondent if sales, and thus,
income should drop, and past accommodations by the
Union regarding supervisory performance of unit work,
opposed the Respondent's proposals in those areas.
Seeking headway in the efforts to arrive at a compro-
mise, the Union dropped its wage proposal to $2, to
which Respondent made no response, dropped its pen-
sion benefit request another two steps lower beyond
what it had already been reduced to, agreed to a lesser
holiday benefit by lessening entitlement to holiday pay,
and submitted a proposal to lessen Saturday pay and split
the shift then in response to the Company's declared
need for greater flexibility and cost reduction
At the conclusion of the meeting, the Union requested
an extension of the parties' contract beyond a deadline
set in Tate's letter, but the latter refused citing the
Union's footdragging on the pension information and the
unexplained "feeling" that the Union had "bogged-
down" negotiations.
The Fifth Meeting-September 24
Continuing its efforts to reach an agreement, the
Union dropped its wage requests substantially lower to
$1 the first year, and 75 cents in the remaining 2 years;
and, in response to company concern, tightened the
grievance-clause language to require an employee to file
a grievance within 3 days after his knowledge of the al-
leged contract violations rather than allowing unrestrict-
916 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ed filing time. Davidson also advised Tate the union
counterproposal on hours accorded Respondent 'greater
flexibility given its split-shift, caused elimination of Satur-
day premium dollar pay, reminding Tate that Tate's pro-
posal on hours continued to eliminate the guarantees, and
that under his management-rights clause, the Company
could lay off employees in order to have its work done
more cheaply elsewhere. In reply, Tate stated that was
not the Company's intention , and opined that the words
"if necessary" would provide access to the grievance
procedure without offering to meet the Union's natural
concern by inserting either-a further amendment or clari-
fication expressing such intention and safety-value in the
contract. The Union nevertheless further agreed to move
the discharge clause into the grievance procedure clause
as suggested by Respondent, but continued to object to
the polygraph proposal, and Respondent's continuing in-
sistence on its no-strike proposal. Respondent continued
to reject the Union's proposal on health and welfare, of-
fering only to continue the same level of benefits and
agreed to give back the fifth week of a vacation benefit
it had withdrawn from the existing vacation benefit if the
Union agreed to the remainder of its proposals. Respond-
ent agreed to restore 4 hours of the call-in pay to the 8
hours deleted under its earlier proposal, but omitted
mention of a lunch period under its proposal on breaks,
which otherwise 'continued the same times for breaks,
and withdrew its proposals on union cooperation and
sick leave, leaving the latter the same while continuing
to_ reject the Union's proposed change eliminating a doc-
tor's slip.
Respondent's position of funeral leave accepted the
Union's proposal, and it also withdrew its proposal on
supervisory work leaving matters where they stood on
this subject as described above, that is, the Union accom-
modating Respondent's needs as they arose. Respondent
remained firm and unwilling to move from its position
on seniority, wages, union security, and checkoff (except
as further developed later in the meeting described
below as to union security).
Instructive in assessing Respondent's motives in this
case is that the Union also proposed another version of a
management-rights clause to Respondent quite similar in
many respects to Respondent's proposal but its reasona-
ble effort toward a compromise was rejected by Re-
spondent's reply that it saw nothing wrong with its own
proposal, though the Union pointed to concern over sub-
contracting. (Jt. Exh. 9.)
After about 2 hours had elapsed, Davidson, based on
what had transpired, and expressing the belief Tate had
not moved at all, asked for Respondent's best offer,
which Tate later presented to him. (Jt. Exh. 10.) Since
that offer remained substantially, if not nearly exactly the
same , as Respondent's prior position except that Re-
spondent would agree to union security and checkoff if
all the Company's proposals were agreed to, Davidson ex-
pressed his frustration with Respondent's restrictions "all
the way" on the Union as to wages, hours, seniority,
holidays, and vacation pay, and the meeting ended, Da-
vidson repeating his conviction that Tate had not moved
at all and stating he intended to call a strike vote.
The Sixth and Final Meeting-October 12
This meeting was attended by the local Union's presi-
dent. Ron Larson, called in by Davidson, who asked
Larson to try to avert a strike. Larson called the media-
tor to set up the meeting to see if, "we could resolve the
issues," and was joined by another business representa-
tive for Local 955. Tate, Bond, and the mediator com-
pleted the lineup of those present.
Tate proposed a written "final" offer which warned it
would be put into effect 6 days later absent agreement or
acceptance, again conditioning the union-security clause
upon acceptance of the package This proposed contract,
face, nevertheless continued to delete the union-security
checkoff clause which was an integral part of the existing
union-security agreement . (Jt. 11, p. 7, art. 14.)
Larson went over the proposed contract indicating the
Union's objections to the sweeping nature of the manage-
ment-rights clause, detailing what, in the Union's view,
would fall under the Company's sole prerogative to con-
trol if the clause were accepted, and declaring Tate's
proposal was "insulting to my intelligence, explained the
basis for the Union's objections, illustrating by example
what the Union was concerned would occur if the Re-
spondent's proposals were accepted, mentioned again the
Union's views concerning the -no-strike provision, and
possible danger to employees crossing picket lines as re-
quired by the clause, and disputed the Company's basis
for discarding the pension plan on the grounds that it
was not underfunded as contended by Respondent.
Larson recalls further that Tate produced no figures in
support of the Company's wage proposal which the par-
ties also discussed and wherein the $175 base in the
Company proposal was compared to the nearly $300
then current wage.
Larson then offered to reduce the Union's proposal on
wages yet a fourth time, down to a 50-cent increase per
hour, and to avert a strike by keeping the remaining con-
tract provisions in place the way they were. Indicating
also that the Union's position ignored other earlier areas
of agreement, Tate rejected the Union's offer, stating
"No, you've got your final proposal and there will be no
changes."
Respondent's Conduct away from the
Bargaining Table
In events paralleling negotiation sessions and accord-
ing to two employee witnesses, Respondent's route sales-
men admitted Supervisor Brian Bicknell told the employ-
ees at Respondent's facility that they would be better off
going to Gary Bond and negotiating their own contract,
that he did not think Bond was going to sign a contract.
Employee Jimmy Shadden placed the above conversa-
tion in mid-June. Shadden also testified that around the
first of July, Bricknell told him and another employee,
Brian Sampson, that they would be better off on a com-
mission basis, made derogatory remarks concerning
Union. Negotiator Davidson-claiming Davidson never
did anything for him and that he was glad he was not in
the Union-and again said Bond was not going to sign a
contract with the Union. Again, this time in August,
Shadden testified he was present when Bricknell, re-
COMMERCIAL CANDY VENDING DIVISION
sponding to a question by Sampson to Bracknell concern-
ing what Bricknell thought of the contract negotiations
at that time, replied, "Well, I can guarantee you that
Gary Bond is not going to sign any more contracts."
Employee Sampson testified that Bricknell asked Samp-
son and Shadden why they should not get a contract
with Gary Bond themselves, (that it would be) "a better
deal," they would just have to trust Bond. Sampson said
Bricknell made it apparent "we'd be better off without
the Union because Gary Bond could give us higher
wages and he wouldn't have to pay this that or the
other." Sampson further recalls a conversation in August
when Bricknell told Shadden and him that under no cir-
cumstances would Bond sign the contract, and that
Bricknell stated this on other occasions as well.
For his part, Bricknell at first testified under direct ex-
amination that he never told employees that Gary Bond
would not sign a contract, but on cross-examination ad-
mitted he told employees that there "was no way that
Gary's going to sign a contract for $15.00 an hour," and
testified he could "not recall" the contents in any
"other" conversations. Bricknell's failure to recall other
conversations leaves intact,the employees' corroborating
accounts of Bricknell's reported statements. Further,
while Bricknell did not strike me as one who would
stray from the truth, his nervousness and tight self-con-
trol marked by discomfort while on the stand stood in
contrast to the opposing freely offered testimony by the
employee witnesses Further, these witnesses testified to
more than two occasions when Bricknell made these re-
marks and Bricknell only remembers two occasions
when such comments were attributed to him and it was
not made clear , even under his account , whether he re-
ferred to Bond not signing a contract for $15 an hour on
only one of those occasions-leaving intact the testimony
concerning Bond not signing a contract-period-on the
other, or whether he was testifying that on both occa-
sions, he had added the proviso "for $15.00 an hour." It
is not likely, in my view of the record, that Bricknell
would state, in August, when the Union had already
lowered its wage proposal below the "$5.00 per hour
over 3 years" in the negotiations, that Bond would never
sign a contract "for $15 an hour," for such would be a
meaningless comment absent such a proposal from the
table
I conclude therefore, on the credited testimony, that
the Respondent, through Bricknell and by the above
conduct, unlawfully engaged in direct dealings with em-
ployees in an effort to persuade them to negotiate a con-
tract with Respondent's owner, Gary Bond, and to
bypass the Union while the parties were in negotiations,
offered employees the prospect of a "better deal" to
thereby undermine employee support for the Union, and
further threatened employees with the prospect that Re-
spondent would never sign a contract with the Union,
thereby confronting employees with the prospect of
meaningless futility in the negotiating efforts by the em-
ployees' lawful collective-bargaining representative, to
further lessen employee union support, all in violation of
917
Section 8(a)(1) of the Act.' Quality Engineered Products
Co., 267 NLRB 593 (1983); Carpenters Local 1780, 244
NLRB 277, 280 (1979); and D & H Mfg. Co., 239 NLRB
393, 403-404 (1978).
Postnegotiating Session Events
On the Saturday following the final negotiating session
on October 12, the union representatives, Davidson and
David Simmons, the secretary-treasurer, and the business
agent , met with the four route drivers,,who had been
present at all or most of the meetings listening to Re-
spondent's proposals, which the men discussed and re-
viewed at this Saturday meeting. There was talk in par-
ticular that the employees "could not live" with the lan-
guage in the Company's proposals, as they would under
employees' analysis lose money, whether business re-
mained at the present level or got worse. Employees also
expressed the view that it was wrong for the Company
to seek terms that would cause them to lose money, re-
ferring to the percentage commission system.
Following this discussion, the employees voted to
reject the Company's proposals and go on strike.2
The employees went out on strike for the next 3
weeks, and then met with union representatives to dis-
cuss ending the strike and accepting Respondent's last
offer, on November 18. Upon employees reaching a deci-
sion to do so, in a vote, Simmons contacted Bond and
then Tate's associate attorney McCarthy on the spot, ad-
vising them of the employees' meeting with the Union
and their desire to return to work pursuant to uncondi-
tional offers. Respondent admits that such written uncon-
' I find no trace of unlawful retaliatory motive behind Bond's reactions
on July 23, to the drivers' request that Bracknell be removed, as he had
become a supervisor, from performing Saturday route work It is a fact
that the contract prohibited supervisory performance of unit work, but
the evidence shows that this was a matter generally resolved by the par-
ties, especially when employees, as regards this route work, did not
desire assignment , requiring Bond to find a willing person His "new
rules" response seems connected to operational considerations only, such
as safeguarding property and ensuring that the route would be serviced,
rather than to action designed to penalize the employees' concerted activ-
ity
By mailgram dated October 18 confirming an October 15 message,
Tate notified the Union that implementation of the last offer was delayed
until October 25 or later, and that the Company was agreeable to further
contract negotiations in the meantime "should Union believe impasse can
be broken" (emphasis added) This telegram reveal no intention by Re-
spondent to move from its entrenched positions, herein found to compel
the conclusion that it had engaged in purely surface bargaining , rather it
seems designed as an effort to cover its tracks by creating the impression
of a willingness to resume the negotiations at the same time belying a sin-
cere intent to engage in meaningful bargaining by casting the Union in
the role of an appeaser with the condition for such negotiations being
"should Union believe impasse can be broken " In short, this telegram is
worded so as to convey the message that if there are to be renewed ne-
gotiations , the Union will be expected to be the party making conces-
sions, it reveals no corresponding willingness on Respondent's part to do
so, or to consider doing so, yet it was Respondent's overall conduct de-
scribed above, which led to the breakdown in the parties' negotiations,
including its take-it -or-leave-it attitude on contract provisions of major
significance Accordingly, the Union's failure to reply to Respondent's
self-serving message in no way can be considered to lessen Respondent's
responsibility for the failure of these negotiations
There is no evidence or allegation that Respondent in fact implemented
the changes in employment conditions as stated in the telegram , conse-
quently the issue of any unlawful unilateral changes in employment con-
ditions is not before me
918 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ditional offers to return to work from employees Donald
Craig, Brian Sampson, and Jimmy Shadden were made
on November 8, 1982. (G.C. Exh. 1 G.) Respondent re-
fused by letter on the same date, November 8, to rein-
state the employees, claiming they had been replaced.
(R Exh 8.)
Simmons, during these conversations with Bond and
later the same day with Counsel McCarthy, specifically
inquired as to the employment conditions under which
employees would be returning to work and in the call to
McCarthy, asked him to "send me a copy of the contract
the way he understood it so we could go ahead and exe-
cute it and put it into place."3 Respondent never sent a
copy of the contract to the Union. McCarthy, while on
the stand, was not asked to address Simmons' testimony
that the latter requested a copy of the contract for exe-
cution, thus Simmons' account stands as credible and un-
contested. While McCarthy did testify that "nothing was
said about the. Union accepting the Company's last
offer," in this conversation, this is not the same as deny-
ing Simmons' express testimony, and parallel-as well as
later-events satisfy me that Respondent knew or should
have known-in fact could have easily taken steps to
find out-that the Union was requesting the contract for
execution but decided not to send a copy for reasons dis-
cussed below. Thus, McCarthy testified that he dictated
the wording on a statement Bond was to-secure employ-
ee signatures on to constitute employee "unconditional
offers" and those offers, signed by employees contain the
Respondent's last offer verbatim on the management-
rights clause, as well as referring generally to health and
welfare in the existing contract-as was also Respond-
ent's last offer, its position on pension, wages, and dis-
charge, In short, the record reveals that employees were
not just returning to work while negotiations would con-
tinue, they were agreeing to the contract offer-the gist
in it , if not every other provision-and there was no ob-
jection from the Union, a fact consistent with its commu-
nicated acceptance of the Respondent's contract. (Jt.
Exh. 13.) Later events, when Simmons telephoned
McCarthy's office on December 13, again manifest the
Union's desire to sign a contract, for, on that date, Sim-
mons says he called both Bond seeking a copy of the
contract, and later called McCarthy asking him for a
copy, being told "they'd send us a copy." McCarthy
denies talking to Simmons that day and presented
records showing he was out of town, but admitted re-
ceiving a message from his secretary stating that Sim-
mons had called asking for a copy of Respondent's last
offer, while Bond admits that Simmons called asking if
he had gotten a copy of the Company's last offer con-
tract. McCarthy's only reason, he testified, for not send-
ing along a copy of the contract was he believed the
Union already had one, and, for his part, Tate testified
he was not told the Union had asked for one. I do not
see why a party to negotiations which have lopsidedly
gone in its favor would not jump at the chance to settle
so important a matter by the mere expenditure of effort
9 Employee Jimmy Shadden recalled that Simmons telephoned and
told Gary Bond the employees wanted to go back and that "we'd accept
the latest final offer "
involved in delivering or mailing a copy of the Respond-
ent's own last offer contract to the other side, if there
was even the slightest suggestion, let alone the substan-
tial manifestations to such effect in this case, that such
would be accepted, unless a motive to avoid such an
agreement entirely fueled Respondent's failure to do so.
Moreover, instead of doing what would have been the
natural thing were there an interest in the slightest
degree to reach an agreement, even on its own terms in
all respects, Respondent not only failed to grant the re-
quest (or check it out) but also, only 2 days after the
Union's latest request to sign the agreement, Respondent
filed an RM petition with the Board's Regional Office
questioning the Union's very status as the bargaining rep-
resentative, and in the present proceeding, denied that
the Union was such representative, in its answer to the
complaint, without advancing any argument or evidence
to support its position, conduct hardly consistent with
any intention to enter into an agreement with the Union.
Analysis and Conclusions
The question whether Respondent engaged in surface
bargaining with no intention to reach an agreement with
its employees' certified collective-bargaining representa-
tive has required a very careful examination into the
record evidence within clearly marked guiding param-
eters established by Board law before answering. Every
exhibit and minute of meetings, all testimony regarding
the events in issue, as well as carefully crafted conten-
tions on briefs, received thoughtful consideration.
It bears repeating at the outset that the Board has been
consistent in its adherence to the Supreme Court's early
admonition that the Board may not "sit in judgment on
the substantive terms of agreements." NLRB v. American
National Insurance Co., 343 U.S. 395, 404 (1952). A cor-
ollary to this principle is the specific 8(d) provision in
the Act that the bargaining obligation imposed by the
Act does not require agreement to a proposal or making
a concession, but as was stated by later Chief Adminis-
trative Law Judge Arthur Leff such provision "may not
be used as a protective cloak where bad faith otherwise
appears." "M" System, Inc., 129 NLRB 527, 547 (1960).
Judge Leff stated further:
Good faith, or the want of it, is concerned essen-
tially with a state of mind. There is no shortcut to a
determination of whether an employer has bar-
gained with the requisite good faith the statute com-
mands. That determination must be based upon rea-
sonable inference drawn from the totality of con-
duct evidencing the state of mind with which the
employer entered into and participated in the bar-
gaining process The employer's state of mind is to
be gleaned not only from his conduct at the bar-
gaining table, but also from his conduct away from
it-for example, conduct reflecting a rejection of
the principle of collective bargaining or an underly-
ing purpose to bypass or undermine the Union
manifests the absence of a genuine desire to com-
pose differences and to reach agreement in the
manner the Act commands All aspects of the Re-
COMMERCIAL CANDY VENDING DIVISION
spondent 's bargaining and related conduct must be
considered in unity, not as separate fragments each
to be assessed in isolation . As was stated by Mr.
Justice Frankfurter in his separate opinion in NLRB
v. Insurance Agents International Union [ (Prudential
Insurance)], supra, 316 U.S 477 ( 1960)].
. .. the significance of conduct, itself apparently
innocent and evidently insufficient to sustain an
unfair labor practice may be altered by imponder-
able subleties at work. . . . Activities in isolation
may be wholly innocent, lawful and "protected"
by the Act, but that ought not to bar the Board
from finding if the record justifies it, that the iso-
lated parts "are bound together as parts of a
single plan [to frustrate agreement ]. The plan
may make the parts unlawful.
The Supreme Court also noted in Insurance Agents,
that
[T]he Board has been afforded flexibility to deter-
mine . . . whether a party's conduct at the bargain-
ing table evidences a real desire to come into agree-
ment. . . . And specifically we do not mean to
question in any way the Board's powers to deter-
mine the latter question, drawing inferences from
the conduct of the parties as a whole. NLRB v. In-
surance Agents (Prudential Insurance), supra at 498.
Further, the Court noted at 485.
Collective bargaining, then, is not simply an occa-
sion for purely formal meetings between manage-
ment and labor , while each maintains an attitude of
"take it or leave it"; it presupposes a desire to reach
ultimate agreement, to enter into a collective bar-
gaining agreement.
More specific , recent exposition concerning the nature
of the duty to engage in good-faith bargaining can be
found. Thus, it has been stated that,
The parties are duty-bound "to enter into discussion
with an open and fair mind , and a sincere purpose
to find a basis of agreement" (NLRB v. Herman
Sausage Co ., 275 F.2d 229, 231 (5th Cir 1960)), to
"approach the bargaining table with an open mind
and purpose to reach an agreement consistent with
the respective rights of the parties ." Majure v.
NLRB, 198 F.2d 735, 739 (5th Cir. 1952) "The es-
sential thing," as the Supreme Court in the Insur-
ance Agents case quoted with approval from the
Board 's first annual report , "is . . the serious
intent to adjust differences and to reach a accepta-
ble common ground."4
It is still further instructive to note that , in the judge's
decision from which the foregoing was extracted, cited
below in the footnote and adopted by the Board, it was
observed with clear support in guiding precedent that,
4 A-1 King Size Sandwiches, 265 NLRB 850 (1982)
919
In NLRB v. Wright Motors, Inc., 603 F.2d 604, 609-
610 (7th Cir 1979), the court stated.
Sometimes, especially if the parties are sophisti-
cated, the only indicia of bad faith may be the
proposals advanced and adhered to. NLRB v.
Holmes Tuttle Broadway Ford, Inc., 465 F 2d 717,
719 (9th Cir. 1972), Vanderbilt Products, Inc. v.
NLRB, 297 F.2d 833 (2d Cir. 1961); NLRB v.
Reed & Prince Manufacturing Co., 205 F.2d 131,
134-135, 139 (1st Cir. 1953), certiorari denied,
346 U.S. 887. . . . The fact that it may be diffi-
cult to distinsuish bad faith bargaining from hard
bargaining cannot excuse our obligation to do so.
The decision went on to note other cases wherein "sur-
face bargaining" violations had been found based upon
the proposals advanced and adhered to by the parties, in-
cluding American Parts System,5 in which the Judge's de-
cision, adopted by the Board, included reference to a
guiding precedent which stated , inter alia , that "the issue
was whether Respondent's approach to bargaining dem-
onstrated an unyielding rigidity during negotiations
which made collective bargaining a futility."s It is also
clearly established therein, and in the A-1 King Size Sand-
wich decision (at 857) with still further supporting prece-
dent that "unusually harsh and unreasonable proposals"
may support a finding of bad-faith bargaining.
Guided by the foregoing, I find Respondent's conduct
at the bargaining table to manifest an intention to avoid
reaching agreement and, while this finding requires no
further basis for its support, that Respondent's conduct
away from the table tends to clearly reveal further that it
had no intention of reaching such an agreement and in-
stead, evidences a desire to rid itself of the employees'
collective -bargaining representative.
The finding is based on a totality of circumstances, as
opposed to any one specific factor and in reaching this
conclusion , the parties ' apparent concessions to each
other or agreements in a few areas, such as jury duty,
term of contract, funeral leave, safety, and placement or
positioning of the clause on discharge, have been taken
into account but considered insubstantial compared to
the subjects, of far greater import for employees, on
which no progress was made.
Respondent approached bargaining with the professed
intent to impose drastic changes and overhaul the provi-
sions in the existing contract , and its desire to do so is
not by itself unlawful . Had it attempted to do so in a
manner involving the give and take exchange of propos-
als standing a chance for approval , or had yielded to re-
buffs with counterproposals on primary subject matters
evidencing open -mindedness or the slightest desire to
reach an agreement , the result in this case might be dif-
ferent. The fact that it did not do so even while starting
a blunderbuss attack on existing employee rights and
benefits long in place connotes a sinister plan or designed
strategy to forestall agreement.
5 232 NLRB 41 (1977), A-1 King Size Sandwiches , supra at 859
6American Parts System , supra at 47 , citing Borg-Warner Corp, 198
NLRB 726, 729-730 (1972)
920 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The wage proposal on its face displaced a guaranteed
hourly wage and weekly income-also the measuring
stick for overtime pay and vacations-which had been
cornerstone benefits for years, and was admittedly a
base-plus-commission incentive system yielding unknown
results, Respondent thereby pushing what was a pig in a
poke on employees and union negotiators with no sup-
porting data. It was not until this hearing that Respond-
ent disclosed a computer printout (R. Exh. 7), purported-
ly to demonstrate employee anticipated income, and of
course by then it was irrelevant to the concerns of the
union negotiators. Even so, the exhibit reflects peak busi-
ness period estimated sales, and business could drop
below those estimates thereby lowering employee
income . Further, under the plan, Bond was to determine
what was perishable and nonperishable, which would
heavily influence the employee commission, and employ-
ee estimates at the hearing-and during the negotiation
periods-sharply differed as to the amount of sales per
item from that portrayed in Respondent 's Exhibit 7, and
as to the overall volume of sales.
The Union rejected the proposal, and, even though
Respondent's Exhibit 7 might have served as a means to
ventilate the Union's problems with the wage proposal,
since Bond had it available then. Tate failed to produce
the exhibit at negotiations as it was not his practice to do
so, and McCarthy, on brief, argues Respondent had no
duty to do so. Furthermore, Tate made no effort to make
the proposal any more attractive say by increasing the
commission rate, due to the Union's "disinterest," yet
steadily insisted upon the proposal to the conclusion in
the parties' negotiations. It is inconceivable that Re-
spondent would have foregone the small effort involved
in presenting Respondent's Exhibit 7 or its equivalent to
explain , justify, sell, or enhance the prospect of the
Union accepting the wage proposal, a radical departure
from the employees' established wage system, unless it
harbored no desire for its acceptance. Tate even admit-
ted he was unfamiliar with the employees' working
hours at this hearing and Bond merely replied he had not
furnished Respondent's Exhibit 7 because the Union had
not asked for it. Such lack of concern for whether or not
its drastic proposal on a subject of overriding importance
to the question whether a contract would ever be
reached evidences an indifference ill-conducive to mean-
ingful negotiations, as there was no claim of economic
necessity. In fact, Tate made it clear no such claim was
being advanced, yet the Union made it clear that it per-
ceived the proposal as imposing losses on employees in
reduced business periods in the form of lesser income
and reduced vacations (not to mention reduced overtime
and call-in pay). In sum , I cannot accept that Respondent
in good faith believed the Union could agree to such a
proposal, "at least in the absence of any supported claim
of economic necessity." United Contractors, 244 NLRB
72, 73 (1979). Moreover, the prospects for increased
income were purely speculative, making Respondent's
proposal lacking in generosity and reality-deficiencies
deemed relevant in assessing the bona fides in employer
wage proposals. K Mart Corp., 242 NLRB 855 (1979).
Respondent also insisted unyieldingly on virtually gut-
ting employee seniority rights out of the contract as de-
scribed above. On brief, Respondent claims there was an
absence of concern by the Union inasmuch as the only
employee witness at this hearing had no problem with
the proposal. The witness in fact described concern for
another older fellow employee who could, under Re-
spondent's proposal, be simply discharged upon cessation
of his route absent his former seniority rights, and Re-
spondent's position misses the mark further for the Union
at negotiations opposed such a proposal directed, once
again, at the destruction of a fundamental employee pro-
tection, arguing that the Respondent had no compelling
reason to eliminate seniority as "a route driver was a
route driver." Again, an instance arises where, with no
persuasive reasons rooted to economic or operational ex-
igencies being advanced, Respondent moved to cut away
another fundamental right from the core of employees'
long-established working conditions and never pulled
back from such effort, instead arguing later before me
that the Union has a kind of burden of proof to show
concern and the reason for its concern over a proposal
seeking to overthrow important values to employees-
obvious on its face.
Respondent's proposed management-rights clause, set
forth above, left the Union and employees very few of
their former rights in the workplace free from challenge
or the Company's sole control. Its unprecedented scope
and grants of power are similar to the contents in clauses
involved in cases wherein the employer was found to
have unlawfully insisted upon their inclusion in a collec-
tive-bargaining agreement. S-B Mfg. Co., 270 NLRB 485
(1984); K-Mart Corp., supra at 863; American Parts
System, supra at 47; and Hospitality Motor Inn, 249
NLRB 1036 (1980). The clause conferred these powerful
rights, including the power to exercise control over
hours, work rules, shifts, demotion, transfer, efficiency of
employees, workload, relocating , sale of the business,
and a host of other matters, but also the right to subcon-
tract work when necessary with only the vaguely
worded qualification that those rights shall not be used
to "avoid" other provisions in the agreement, a fragile
and unreassuring window-dressing-like verbiage against
exercise of the enumerated and implied authority accord-
ed otherwise unreservedly and exclusively to the Compa-
ny.
Tate not only refused to accept a union counterpro-
posed clause reasonably comparable to Respondent's, but
failed to explain why, stating he did not see anything
wrong, "with ours," a further similarity to the employ-
er's bargaining conduct found unlawful in the cited K-
Mart case above (p. 863), as well as further indicating a
"take it or leave it" bad-faith mindset since such conduct
prohibited any attempt "to find a common ground upon
which he and the Union could resolve their differences."
Hudson Chemical Co., 258 NLRB 152, 155 (1981). I find
that Tate knew, should have know, and, in fact found
out quickly, that the Union would not accept the propos-
al and that he did not even advance it as a basis for fur-
ther discussion, as shown by his curt rejection of the
Union's counterproposal-all indicating when combined
with his immovable stance against any modifications
thereto through the end in negotiations, an absence of
COMMERCIAL CANDY VENDING DIVISION
good-faith bargaining on his part.7 NLRB v. Reed &
Prince Mfg. Co., 205 F.2d 131, 139 (1st Cir. 1953), cert.
denied 346 U.S. 887.
These foregoing proposals obviously would create
storm clouds on the horizon within the view or reasona-
ble contemplation of Tate, a seasoned labor relations
lawyer, yet to them he added a proposal to wipe out the
employees' existing pension plan, in its present form alto-
gether without the slightest apparent concern over
whether that might not be a better subject for another
time-given the drastic cutbacks and troubling proposals
he had already put in the works. Nor did he even follow
another available tactic, for example, only yielding on
the proposed elimination , or phasing in parts of the new
plan contingent upon the local union securing approval
from higher union levels to withdraw from the existing
plan-the variations, if one desired to seek such goal as
part of a negotiated agreement or an accommodation
clearing the way for negotiations and agreement in other
areas-are numerous though the key element, a sincere
desire and open-mindedness towards reaching an agree-
ment remains the same. Instead, Respondent did not
budge an inch.8 Tate, whatever substantial reasons he
had to believe it would be a good idea to get his client
out of the pension plan then in place-and the Union
contradicted one such reason emphasized by Respondent,
viz. The alleged unfunded contingent liability, still bore
the responsibility not to press unyieldingly on so many
fronts that to a reasonable observer, no agreement by the
Union could be expected, yet he pushed this matter with
the others without stopping or modifying or trading it
off in exchange, again manifesting a take-it-or-leave-it at-
titude and disinterest in reaching any accommodation.
Respondent's proposals and responses in other respects
are described above and reflect either withdrawals of ex-
isting benefits-the lunch period, the restriction against
being required to report for work within 8 hours of a
completed work shift, the workweek definition, Monday
through Friday, the reduction in holiday pay entitlement
when an employee is sick, the reduction in overtime pay
as such was to be based upon a fixed base lower by far
than the existing hourly wage rate, the loss of holidays
to employees until they served 120 rather 30 days proba-
tionary period, the loss of employee protection against
supervisors doing unit work, the loss of protection
against discharge for refusing to cross a picket line, or
the rejection of union proposals, outlined above, and im-
position by contract of unlimited unscheduled polygraph
tests. Respondent's proposals were, insofar as any im-
' Absent a context being available concerning the surrounding circum-
stances, I am not inclined to accord significance to the proffer of evi-
dence as to two other contracts with another Teamsters Union in another
state which contain such management-nghts clause, a fact, even if such
context were submitted, which would not justify Tate's insistence on the
clause after it did become obvious the Union would oppose it in the form
advanced by him
8 Bond testified to a prenegotiation period comment by an employee to
the effect he would like an IRA plan in apparent support for the propos-
al This was not mentioned at the negotiations and such could hardly fuel
any reasonable anticipation by a seasoned negotiator, such as Tate, that
the Union would agree to a wholesale revamping and withdrawal from a
long-established nationwide pension fund plan for an untried competing
plan in a blink of an eye
921
provement in employee benefits are concerned, relatively
minor, meager, speculative or uncertain, and, in the eyes
of the union organizers, regressive, factors militating
against any good-faith intention on Tate's part to reach
an agreement. Carpenters Local 1780, supra.
Finally, as noted above, Tate obfuscated matters by
first stating that the Company would use its proposal to
eliminate the union-security clause as a bargaining chip,
but then launching into a counterproductive harangue
designed to energize the parties into argumentation and
heated dispute, rather than negotiations. It is well settled
that,
While the Act does not require that an employer
grant a union's bargaining proposals for union-secu-
rity and dues-checkoff provisions, the assertion of
"philosophical" objections does not satisfy the statu-
tory obligation to bargain in good faith concerning
these matters. Sweeney & Co. v. NLRB, 437 F.2d
1127, 1134-35 (5th Cir. 1971), enfg. 176 NLRB 208,
211-212 (1969) 9
To make matters worse from the viewpoint of the par-
ties reaching an agreement, Respondent thereafter, in
strings-attached bargaining tactics, told the union repre-
sentatives it would agree to union security if all other
matters were agreed upon, but when proferring its final
offer in the form of a contract ready for execution to the
Union, eliminated the existing checkoff provision, Tate
testifying at the hearing that this was an oversight, an as-
sertion I cannot rely upon for two reasons- one, because
that contract proposal was the Respondent's final offer
insofar as the Union knew-and it eliminated checkoff;
and two, I cannot believe that so experienced and thor-
ough an expert in labor relations as Attorney Tate,
would be this careless-he was much too painstakingly,
even assidiously careful, in preparing all other proposals
in a very exacting, precise manner.
I conclude therefore that regarding all the foregoing,
Respondent rigidly adhered to predictably unacceptable
proposals thereby indicating a "predetermination not to
reach agreement, or a desire to produce a stalemate, in
order to frustrate bargaining and undermine the statutory
representative." Tomco Communications, 220 NLRB 636
(1975); and Rockingham Machine-Lunex Co. v. NLRB,
665 F.2d 303 (8th Cir. 1981), Marriott Corp, 258 NLRB
755 (1981), and cases cited above.
In reaching this conclusion as to Respondent's overall
lack of good-faith bargaining, I have reviewed as well
the Union's conduct and find examples when it yielded-
several times on its wage position-on pension benefits,
on grievance language, on Saturday premium pay, on an
extra holiday proposal, its proposed change in sick leave,
uniform allowances, health and welfare, and showed
flexibility by making a counterproposal of a new man-
agement-rights clause reasonably close to Respondent's
rigidly adhered to proposed on that subject, and at the
end, proposing a fourth reduction in its wage proposal to
only a small increase in wages, and continuation of exist-
ing contract provisions-all providing no reason for Re-
9 Hospitality Motor Inn, supra at 1040
922 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's obdurate posture, including its take-it-or-leave
it position regarding the Company's final offer on the
last day in negotiations. 10
I have already noted above the independent violations
of Section 8(a)(1) consisting of threats and promises, in-
volving attempts at direct dealings with employees cal-
culated to undermine their representative during contract
negotiations, and which tend to confirm the fmding
above that Respondent engaged in surface bargaining in
violation of Section 8(a)(5) of the Act.
It is clear, and I find, that such conduct entirely, if not
substantially, caused the strike on October 18, which
lasted until November 8, and that therefore, when Re-
spondent on that date refused the employees' uncondi-
tional offers to return to work, but rather stated they
would be placed on preferential lists (and continued to
refuse to reinstate them thereafter), Respondent, by re-
fusing to immediately reinstate the unfair labor practice
strikers, violated Section 8(a)(3) and (1) of the Act. Car-
penters Local 1780, supra at 281, citing Dubo Mfg. Corp.,
148 NLRB 1073 (1964), enfd. 353 F.2d 157 (6th Cir.
1965); and National Fresh Fruit & Vegetable Co., 227
NLRB 2014 (1977); C & E Stores, 221 NLRB 1321, 1322
(1976).
There is no disputing that the Union conveyed the
four employees' desires to abandon the strike and return
to work, to both Bond and McCarthy, a decision they,
the employees, had reached in a vote at Simmons' office
on November 8, In fact, three of the employees, Jimmy
Shadden, Donald Craig, and Brian Sampson-it is
agreed-even signed offers prepared by Respondent
wherein they, the employees, agreed to return under
conditions solely imposed by Respondent, described
above (Jt. Exh. 13), that same day. Regarding the fourth,
Jimmy Harrigan, it is undenied that his abandonment of
the strike and offer to return to work was conveyed to
Respondent along with the others by the Union the same
day, and it is clear from Respondent's letter to Samp-
son-also the same day-that it would have been futile
for Harrigan to have made any further offer to return to
work. Thus, McCarthy's letter stated, in response to Sim-
mons ' call, "However, in that permanent employees have
been hired for all striking employees there is at the
present time, no job openings for a striking employee to
return to." (R. Exh. 8.) Under such circumstances, I find
that employee Jimmy Harrigan, as well as the other
three discharged unfair labor practice strikers, are enti-
tled to reinstatement and backpay. See generally Blu-
Fountain Manor, 270 NLRB 199 (1984), and, for the
principle that the Board does not require the employee
to engage in a futile act, see, e.g., Macomb Block &
Supply, 223 NLRB 1285, 1286 (1976); Mason City Dressed
Beef, 231 NLRI3 735, 747-748, and fn. 3 (1977); Alexan-
der's Restaurant & Lounge, 228 NLRB 165, 179 (1977);
and Penzel Construction Co., 185 NLRB 544 (1970).
CONCLUSIONS OF LAW
1. K-B Resources Ltd., Inc ., d/b/a Commercial Candy
Vending Division is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Department Stores, Package , Grocery, Paperhouse,
Liquor and Meat Drivers , Helpers and Warehousemen,
Local Union No. 955 , affiliated with International Broth-
erhood of Teamsters , Chauffeurs , Warehousemen and'
Relpers of America, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Since on or about July 15, 1975, the Union has been
the exclusive representative for the purposes of collec-
tive bargaining of the employees in the following unit:
All full-time and regular part -time vending route
salesmen employed by the Respondent at the facili-
ty, excluding office clerical employees , professional
employees, guards and supervisors as defined in the
Act.
4. By refusing to bargain in good faith with the Union
as the exclusive representative of the employees in the
above-described unit, Respondent engaged in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of
the Act.
5. By denying striking employees Jimmy Shadden,
Donald Craig, Brian Sampson, and Jimmy Harrigan rein-
statement on November 8, 1982, upon their uncondition-
al application, because of their union and concerted ac-
tivities, Respondent discriminated against them to dis-
courage membership in a labor organization in violation
of Section 8(a)(3) and (1) of the Act.
6. By engaging in the following conduct, Respondent
committed unfair labor practices in violation of Section
8(a)(1) of the Act:
(a) Telling employees they could get a better deal by
going to Respondent's owner directly than with the
Union.
(b) Telling employees that Respondent's owner is not
going to sign any more contracts.
(c) Informing employees they would be better off
without the Union.
7. Respondent did not threaten employees with repris-
als because they requested a supervisor discontinue per-
forming bargaining unit work.
8. The above-described unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
10 Respondent 's failure to send a copy of its final contract offer to the
Union when such was reasonably called for had it harbored any intention
to reach any agreement with the Union , its filing of an RM petition 2
days after the last day in bargaining by which an election was sought as
to the continuing status of the Union as Respondent 's employee repre-
sentative-viewed in combination with Respondent's answer, unsuppor-
tedly denying the Union 's status as bargaining representative , have al-
ready been noted above and are entirely consistent with the finding
herein as to Respondent 's intentions
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5)
of the Act, I shall order that it cease therefrom and take
certain affirmative action designed to effectuate the poli-
cies of the Act.
As I have found that Respondent has unlawfully failed
or refused to reinstate unfair labor practice strikers
Jimmy Shadden, Donald Craig, Brian Sampson, and
COMMERCIAL CANDY VENDING DIVISION 923
Jimmy Harrigan, I shall order that Respondent offer the
four above-named individuals immediate reinstatement to
their former positions or, if such jobs no longer exist, to
substantially equivalent positions , without loss of seniori-
ty and other rights and privileges previously enjoyed,
discharging if necessary , any replacements hired I shall
further order that Respondent make Jimmy Shadden,
Donald Craig , Brian Sampson, and Jimmy Harrigan
whole for any loss of earnings or other benefits they
have suffered as a result of the discrimination against
them from the date Respondent unlawfully refused to re-
instate them to the date of Respondent 's offer of rein-
statement, in accordance with the Board's formula set
forth in F. W. Woolworth Co., 90 NLRB 289 (1950), with
interest thereon to be computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977).11
I shall order that Respondent preserve and make avail-
able to the Board or its agents, upon request, all perti-
nent records and data necessary to determine the amount
of backpay due, and I shall order Respondent to post ap-
propriate notices. Finally, since Respondent has engaged
in unfair labor practices of a sufficiently egregious nature
as to demonstrate a disregard for its employees' funda-
mental statutory rights, I shall order Respondent to cease
and desist from in any other manner infringing upon the
rights guaranteed to its employees by Section 7 of the
Act.12
[Recommended Order omitted from publication.]
11 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
12 See Hickmott Foods, 242 NLRB 1357 (1979)