Dynatron/Bondo Corp.

National Labor Relations Board - Board Decisions

Apr 3, 2001

333 N.L.R.B. 750 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 750
Dynatron/Bondo Corporation and Union of Nee-
dletrades, Industrial and Textile Employees,
AFL–CIO. Case 10–CA–29735
April 3, 2001
DECISION AND ORDER
BY MEMBERS LIEBMAN, HURTGEN, AND
WALSH
On February 25, 1998, Administrative Law Judge
Keltner W. Locke delivered a bench decision and certi-
fication in this proceeding. The General Counsel, the
Charging Party, and the Respondent each filed excep-
tions and a supporting brief, and the Respondent filed an
answering brief.
On September 30, 1998, the National Labor Relations
Board, by a three-member panel, issued an Order re-
manding proceeding to administrative law judge.1 The
Board, finding that the bench decision lacked sufficient
rationale, ordered the judge to prepare a supplemental
decision with a “written analysis of the facts and legal
precedent relevant to all the issues presented in this
case.”
On April 15, 1999, the judge issued the attached sup-
plemental decision in this proceeding. The Respondent
filed exceptions and a supporting brief, the Charging
Party filed cross-exceptions and a supporting brief, and
the Respondent filed an answering brief.
The Board has delegated its authority in this proceed-
ing to a three-member panel.
The Board has considered the bench decision, the
supplemental decision, and the record in light of the
exceptions to the bench and supplemental decisions and
briefs and has decided to affirm the judge’s rulings,
findings,2 and conclusions as explained below and to
adopt the recommended Order as modified below.3

1 326 NLRB 1170.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
The Charging Party’s request for additional remedies is denied.
3 The judge inadvertently neglected to order the Respondent to bar-
gain with the Union. We shall modify his recommended Order accord-
ingly.
We shall also modify the judge’s recommended Order in accordance
with our decision in Indian Hills Care Center, 321 NLRB 144 (1996).
Finally, we clarify the judge’s make-whole remedy in par. 2(b) of
his recommended Order to provide that the Respondent shall reimburse
employees for any expenses ensuing from the Respondent’s unlawful
conduct, as set forth in Kraft Plumbing & Heating, 252 NLRB 891 fn. 2
(1980), enfd. 661 F.2d 940 (9th Cir. 1981), such amounts to be com-
puted in the manner set forth in Ogle Protection Service, 183 NLRB
682 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), with interest as pre-
scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987).
At issue, inter alia, is whether the Respondent law-
fully declared that the parties were at a bargaining im-
passe in October 1996. The judge found that the Re-
spondent’s unremedied unfair labor practices “had a
direct, serious and pervasive adverse effect” on the bar-
gaining process and that there was a “causal connection
between these unremedied unfair labor practices and the
parties’ failure to reach agreement.” The judge con-
cluded that the Respondent could not lawfully declare
impasse and implement its final contract proposals. For
the reasons set forth below, we agree with the judge.
1. Background
The Union began its organizing activities at the Re-
spondent’s facility in 1989. On June 5, 1991, the Board
certified the Union as the collective-bargaining repre-
sentative of the Respondent’s production and mainte-
nance employees. Thereafter, the Respondent refused to
bargain with the Union and refused to furnish requested
information.
On November 8, 1991, the Board found that the Re-
spondent had violated Section 8(a)(5) and ordered it to
bargain with the Union.4 The Respondent did not meet
with the Union for the first time until July 27, 1993,
after the United States Court of Appeals for the Eleventh
Circuit enforced the Board’s Order. Between July 27,
1993, and October 10, 1996, the parties held 35 bargain-
ing sessions. During the last session, the Respondent
declared that the parties had reached impasse. The bar-
gaining sessions will be discussed in more detail below.
During the 3 years of bargaining, the Respondent re-
peatedly acted in disregard of its employees’ rights un-
der our Act. In 1997 the Board found that the Respon-
dent had violated Section 8(a)(5) by making the follow-
ing unilateral changes to employees’ terms and condi-
tions of employment:5

• In October 1991, after the Union was certified,
the Respondent increased employee contributions to
the cost of health insurance premiums.
• In October 1992 the Respondent increased em-
ployee contributions to the cost of health insurance
premiums.
• In May 1993 the Respondent discontinued giv-
ing merit increases to employees.
• In July 1993 the Respondent changed its smok-
ing policy.

4 305 NLRB 574, enfd. 992 F.2d 313 (11th Cir. 1993).
5 323 NLRB 1263.
333 NLRB No. 90
DYNATRON/BONDO CORP. 751
• In October 1993 the Respondent increased em-
ployee contributions to the cost of health insurance
premiums.
• In October 1994 the Respondent increased em-
ployee contributions to the cost of health insurance
premiums.

In the same case, the Board found that the Respondent
committed the following violations of Section 8(a)(3):

• In June 1994 the Respondent discharged Union
negotiating committee member Floyd Robin Davis.
• In August 1994 the Respondent converted the
resignation of Union negotiating committee member
Mark Pepper to a termination.
• In November 1994 the Respondent converted the
resignation of Union negotiating committee member
Gene Bennett to a termination.
• In February 1995 the Respondent converted the
resignation of Union negotiating committee member
Bob Moss to a termination.

Finally, in the same case, the Board found that the Re-
spondent violated Section 8(a)(1) in February 1992 by
engaging in surveillance of its employees’ union activi-
ties.
Further, in a separate proceeding in 1997,6 the Board
found that the Respondent continued to discriminate
against employees who supported the Union. Specifi-
cally, the Board found that the Respondent committed
the following violations of Section 8(a)(3):

• On September 14, 1995, the Respondent sus-
pended Union negotiating committee member Lee
Carter.
• On September 19, 1995, the Respondent dis-
charged Carter.
• In January 1996 the Respondent discharged out-
spoken union adherent Brenda Rogers.

In 1999, all of the above-listed unfair labor practice
findings were upheld by the Eleventh Circuit. NLRB v.
Dynatron/Bondo Corp., 176 F.3d 1310.7

6 324 NLRB 572 (1997).
7 The court disagreed with the Board in certain other respects. Spe-
cifically, the court reversed the Board’s finding that the Respondent
unlawfully implemented a “late arrival to work station” rule and dis-
charged employee Lamar Shelton for violating the rule. The court also
reversed the Board’s findings that the Respondent unlawfully instituted
new work policies relating to material handlers, parking, compensation
for work during power outages, and the use of identification cards. The
Board recognizes that the court’s opinion is controlling for purposes of
resolving the issues presented by this case. See Dynatron/Bondo Corp.,
330 NLRB 16 (1999) (accepting Eleventh Circuit’s decision as the law
of related case involving the same parties).
The Respondent’s unfair labor practices, starting
shortly after the Union was certified and continuing dur-
ing negotiations, were a source of controversy from the
beginning of bargaining.
As stated above, a few days before the first bargaining
session, the Respondent announced the change in the
smoking policy, to be effective the day after bargaining
began. The smoking policy change consumed much of
the first bargaining session on July 23, 1993. Union
negotiator Harris Raynor expressed the Union’s suspi-
cions about the timing of the policy change: “You don’t
come to the table on July 27th and say you are going to
implement a policy on July 28th; it’s now irrelevant
because you have already announced it. That’s typical
of the [Respondent’s] tactics of bargaining.” The Re-
spondent’s negotiator, Walt Lambeth, disingenuously
responded, “That’s why we didn’t make it effective until
tomorrow—so we could negotiate with you.”
Again, as stated above, by the time negotiations be-
gan, the Respondent had twice increased employee con-
tributions to the cost of health insurance premiums.
During the first bargaining session, the Union attempted
to discuss the Respondent’s unilateral increases in em-
ployee contributions. The Respondent refused the Un-
ion’s request to rescind the increases and refused to dis-
cuss the matter because it was pending before the Board.
The Union also complained at the first bargaining ses-
sion about the Respondent’s surveillance of union
activities. The Respondent announced that it intended to
continue its video surveillance of company property.
At the September 27, 1993 session, the Respondent,
as though to emphasize its disregard for its obligation to
bargain with the Union, announced an additional in-
crease in employee contributions to the cost of health
insurance premiums “in accordance with our past prac-
tice.” The Respondent spurned the Union’s attempt to
discuss the increase at the next bargaining session on
October 21, 1993. Then, on August 29, 1994, the Re-
spondent again unilaterally announced further increases
in employee contributions to the cost of health insurance
premiums, despite the Union’s reminder that such
changes were the subject of unfair labor practice litiga-
tion. The subject came up again on September 19, 1994.
Union negotiator Raynor complained that the change “is
a violation. You are not authorized to change the rates
unless you negotiate.” Lambeth replied, “We’ll negoti-
ate about insurance and be happy to talk with you about
what we do in the future. Until we reach an agreement,
we’ll continue doing the same as we have in the past.”
Then, on September 9, 1996, the Respondent again uni-
laterally announced further increases in employee con-
tributions to the cost of health insurance premiums.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 752
The Respondent’s unilateral discontinuation of annual
merit increases was another contentious issue during
bargaining. In the September 9, 1993 session, the Union
sought to determine whether the Respondent had discon-
tinued its merit increase policy. The Respondent re-
fused to answer any questions, accusing the Union of
seeking to “continue [its] pattern of harassment of this
company . . . . If [the Union] were honestly seeking
information for the purpose of bargaining, it might be a
little easier to communicate.” Then, on September 27,
1993, the Respondent insisted that merit raises were not
being given, but stated that it was not allowed to grant
them unless the Union agreed. On July 22, August 29,
September 19, October 6, 1994, and January 9, 1995, the
Respondent refused to be forthcoming about various
aspects of the merit increase policy because of pending
litigation or other reasons.
Finally, one at a time at regular intervals during the
course of bargaining, the Respondent unlawfully dis-
charged six employees, five bargaining committee mem-
bers, and a vocal union supporter. Dealing with the
discharges consumed considerable time at the bargain-
ing table. Equally significant, the discharges made it
difficult for the Union to replace bargaining committee
members because unit members feared retribution for
serving on the committee.
The Respondent declared that the parties were at a
bargaining impasse at the October 10, 1996 bargaining
session. Shortly thereafter, the Respondent sent a draft
of its final proposal to the Union. The Union insisted
that impasse had not been reached and that bargaining
should continue. The Respondent countered that, be-
cause the Union would not agree to its final proposal, “it
is clear that further meetings are futile and we are at an
impasse.” On October 31, 1996, the Respondent noti-
fied the Union of its announcement to employees that
the parties were at impasse and that, effective November
4, 1996, the Respondent would implement an increase in
employee contributions to the cost of health insurance
premiums and a wage increase.
2. Discussion
Generally, “a lawful impasse cannot be reached in the
presence of unremedied unfair labor practices.” White
Oak Coal, 295 NLRB 567, 568 (1989). And, in the ab-
sence of a lawful, good-faith impasse, an employer may
not unilaterally implement its final contract offer. Id.
Indeed, an employer that has committed unfair labor
practices cannot “parlay an impasse resulting from its
own misconduct into a license to make unilateral
changes.” Wayne’s Dairy, 223 NLRB 260, 265 (1976).
Not all unremedied unfair labor practices committed
before or during negotiations, however, will lead to the
conclusion that impasse was declared improperly, thus
precluding unilateral changes. Alwin Mfg. Co., 326
NLRB 646, 688 (1998), enfd. 192 F.3d 133 (D.C. Cir.
1999). Only “serious unremedied unfair labor practices
that affect the negotiations” will taint the asserted im-
passe. Id. (Emphasis added.) Thus, the central question
is whether the Respondent’s unlawful conduct detrimen-
tally affected the negotiations over a new collective-
bargaining agreement and contributed to the deadlock.
In Alwin, 192 F.3d at 139, the court identified
at least two ways in which an unremedied ULP can
contribute to the parties’ inability to reach an
agreement. First, a ULP can increase friction at the
bargaining table. Second, by changing the status
quo, a unilateral change may move the baseline for
negotiations and alter the parties’ expectations
about what they can achieve, making it harder for
the parties to come to an agreement.
Applying the Alwin standard here, we find that there is
ample evidence that the Respondent’s conduct made it
harder for the parties to come to an agreement.
The Respondent set the tone for negotiations on the
first day of bargaining. By the end of the first session,
the Respondent had refused to delay implementation of
the change in the smoking policy, had refused to discuss
its increase in employee contributions to the cost of
health insurance premiums, and had stated its intention
to continue to engage in surveillance of employees’ un-
ion activities. As stated above, the Board found that the
Respondent’s changes and surveillance were unfair la-
bor practices. All in all, the first bargaining session was
an inauspicious start to what became increasingly frac-
tious negotiations.
The Respondent remedied none of the unfair labor
practices, despite the Union’s repeated protests during
bargaining. Instead, the Respondent continued violating
the Act during bargaining by repeatedly announcing
unilateral increases in employee contributions to the cost
of health insurance premiums, refusing to discuss the
annual merit increase policy,8 and discharging union
members.
It is evident that the Respondent used its intransigence
regarding previous unilateral changes and repeated uni-

8 In addition to our finding that the Respondent’s actions moved the
baseline for negotiations and created friction at the bargaining table, we
note that the unilaterally-imposed increase in health insurance premi-
ums and the discontinuance of merit increases had an immediate and
direct impact on unit employees—the diminution of regular, take-home
pay. “Clearly, these were not isolated or insignificant matters, but
rather were areas in which the entire bargaining unit was adversely
affected in the most fundamental way—in their paychecks.” Inter-
mountain Rural Electric Assn., 305 NLRB 783, 789 (1991), enfd. 984
F.2d 1562 (10th Cir. 1993).
DYNATRON/BONDO CORP. 753
lateral changes during bargaining to gain an advantage
in the bargaining process. In essence, the Union could
not formulate bargaining proposals based on a status quo
because the Respondent, by repeatedly acting unilater-
ally and refusing to discuss its changes, kept terms and
conditions of employment in a constant state of flux.
Further, the Respondent’s conduct forced the parties to
focus on its changes, which it refused to rescind, rather
than on legitimate bargaining proposals. We conclude
that the Respondent’s conduct “move[d] the baseline for
negotiations . . ., making it harder for the parties to come
to an agreement.” Alwin, supra, 192 F.3d at 139.
Additionally, we find that there is ample evidence that
the Respondent’s unfair labor practices increased fric-
tion at the bargaining table. First, the Respondent’s re-
fusals to discuss unilateral changes in terms and condi-
tions of employment and the Respondent’s attack on the
Union for filing unfair labor practice charges about these
changes could be expected to create friction. Further,
the discharging of union bargaining committee members
would tend not only to hinder the committee’s ability to
negotiate, but also would reasonably lead it to believe
that its very existence was under attack.9 In fact, the
exchanges quoted above, between Union negotiator
Raynor and the Respondent’s negotiator Lambeth, ex-
emplify that friction did occur at the table.
We conclude that the parties were unable to reach an
agreement due in part to the existence of the unremedied
unfair labor practices committed by the Respondent. It
follows that the parties could not, and did not, reach a
good-faith impasse, and that the Respondent was not
entitled to implement its final contract proposals by
changing wages and group health insurance.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge, as
modified below, and orders that the Respondent, Dyna-
tron/Bondo Corporation, Atlanta, Georgia, its officers,
agents, successors, and assigns, shall take the action set
forth in the Order as modified.
1. Insert the following as paragraph 2(c) and reletter
the subsequent paragraphs accordingly.

9 Oddly, the Respondent’s exceptions illustrate its inclination to en-
gage in action that would create friction. In the supplemental decision,
the judge stated that the Respondent’s “acts did not build trust in [its]
good faith at the bargaining table, but signaled the opposite, a trust-
destroying demand for surrender.” The Respondent excepts to the
judge’s further statement that “experience demonstrates that progress at
the bargaining table bears a direct relationship to the success of the
parties in building some degree of trust.” This exception exhibits a
disdain for the bargaining process that mirrors the Respondent’s atti-
tude about its bargaining obligation, which it has repeatedly refused to
accept despite Board and court orders.
“(c) On request, bargain with the Union as the exclu-
sive representative of the employees in the following
appropriate unit concerning terms and conditions of em-
ployment and, if an understanding is reached, embody
the understanding in a signed agreement. The appropri-
ate unit is:
All production and maintenance employees em-
ployed by the Employer at its Atlanta, Georgia fa-
cility, including all quality control technicians, but
excluding all office clerical employees, technical
employees, laboratory and professional employees,
guards, and supervisors as defined in the Act.”
2. Substitute the following for relettered paragraphs
2(d) and (e).
“(d) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports, and
all other records, including an electronic copy of such
records if stored in electronic form, necessary to analyze
the amount of backpay due under the terms of this Or-
der.
(e) Within 14 days after service by the Region, post at
its facilities in Atlanta, Georgia, copies of the attached
notice marked “Appendix.”10 Copies of the notice, on
forms provided by the Regional Director for Region 10,
after being signed by the Respondent’s authorized repre-
sentative, shall be posted by the Respondent immediately
on 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 no-
tices are not altered, defaced, or covered by any other
material. In the event that, during the pendency of these
proceedings, the Respondent has gone out of business or
closed the facility involved in these proceedings, the Re-
spondent shall duplicate and mail, at its own expense, a
copy of the notice to all current employees and former
employees employed by the Respondent at any time
since October 25, 1996.”
3. Substitute the attached notice for that of the admin-
istrative law judge.
10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 754
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 or-
dered us to post and abide by this notice.

Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these pro-
tected concerted activities.

WE WILL NOT make changes in the wages or group
health insurance of our employees in the bargaining unit
represented by the Union of Needletrades, Industrial and
Textile Employees, AFL–CIO, without providing the
Union adequate notice of the proposed changes and ade-
quate opportunity to bargain about them.
WE WILL NOT in any like or related manner inter-
fere with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
WE WILL, on request, rescind the changes we made
by implementing our wage and group health insurance
proposals unilaterally, and restore the terms and condi-
tions of employment pertaining to wages and group
health insurance which were in effect before we unlaw-
fully changed them.
WE WILL, to the extent that any employee was af-
fected adversely because of the changes we made in
wages and group health insurance, make each such em-
ployee whole, with interest, for all losses the employee
suffered because of the unlawful changes.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on terms
and conditions of employment for our employees in the
following appropriate bargaining unit:
All production and maintenance employees em-
ployed by us at our Atlanta, Georgia facility, includ-
ing all quality control technicians, but excluding all
office clerical employees, technical employees,
laboratory and professional employees, guards, and
supervisors as defined in the Act.
DYNATRON/BONDO CORPORATION
SUPPLEMENTAL DECISION
KELTNER W. LOCKE, Administrative Law Judge. On
February 25, 1998, I issued a bench decision and certification
in this case. On September 30, 1998, the Board issued an order
remanding the case to me with instructions to issue a supple-
mental decision. Dynatron/Bondo Corp., 326 NLRB 1170
(1998).
Thereafter, I issued an order affording the parties the oppor-
tunity to file briefs. Both the General Counsel and Respondent
did file briefs, which I have carefully considered.
Findings Regarding Uncontested Issues
I adopt the following findings, set forth in the bench decision
and certification, regarding uncontested issues. The charge in
this proceeding was filed by the Union on November 8, 1996,
and a copy was served by first-class mail on Respondent on
November 8, 1996.
At all material times Respondent, a Georgia corporation,
with an office and place of business in Atlanta, Georgia, called
Respondent’s facility, has been engaged in manufacturing
automobile filler, and other automotive products.
During the relevant 12-month period, Respondent, in con-
ducting its business operations, sold and shipped from its At-
lanta, Georgia facility goods valued in excess of $50,000 di-
rectly to points outside the State of Georgia. At all material
times Respondent has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
At all material times the Union has been a labor organization
within the meaning of Section 2(5) of the Act.
All production and maintenance employees by the Respon-
dent at its Atlanta, Georgia facility, including all quality control
technicians, but excluding all office clerical employees, techni-
cal employees, laboratory and professional employees, guards,
and supervisors as defined in the Act constitute a unit appropri-
ate for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
On September 8, 1989, in an election by secret ballot, con-
ducted under the supervision of the Regional Director for Re-
gion 10, a majority of the employees in this unit designated and
selected the Union as their representative for the purpose of
collective bargaining with Respondent with respect to rates of
pay, wages, hours of employment, and other terms and condi-
tions of employment. On June 5, 1991, the Board certified the
Union as the exclusive collective-bargaining representative of
all the employees in the unit described above.
The Issue of Impasse
Paragraph 10 of the complaint alleges that on or about Octo-
ber 25, 1996, Respondent implemented the wage and group
health insurance proposals that had been contained in its final
bargaining proposal to the Union regarding the terms and con-
ditions of employment of the employees in the unit. Respon-
dent’s answer admitted that it had implemented the wage and
group health insurance proposals contained within its final
bargaining proposal, but further asserted that this implementa-
tion was “pursuant to lawful impasse to the Union regarding the
terms and conditions of employment” of the employees in the
unit.
DYNATRON/BONDO CORP. 755
In my February 25, 1998 bench decision, I found that no
lawful impasse existed when Respondent implemented the
wage and group health insurance proposals because at that time
unfair labor practices existed which Respondent had not reme-
died. Specifically, I found that Respondent previously had
made a number of unilateral changes in working conditions
which the Board had found unlawful in Dynatron/Bondo Corp.,
323 NLRB No. 217 (1997),1 and Dynatron/Bondo Corp., 324
NLRB No. 98 (1997).2 These unlawful changes included uni-
laterally instituting new disciplinary rules, changing its parking
policy, and creating a new policy for employee compensation
during power outages.
I found that these unremedied unfair labor practices pre-
cluded the existence of a lawful impasse.3 My bench decision
stated, in part, as follows:

[I]f the evidence shows the bargaining process is felt to
have been adversely affected by employer’s unfair labor
practices, the parties cannot reach a valid bargaining im-
passe; see Intermountain Rural Electric Association, 305
NLRB 783 at 789 [1991].
In the case of Columbian Chemicals Co., 307 NLRB
592, at footnote one [1992], the Board stated that an em-
ployer’s application of the unilaterally implemented policy
to employees would preclude a finding that the employer
had bargained in good faith to impasse after implementing
that policy.
In Dynatron/Bondo Corporation, 323 NLRB 1263, is-
sued July 16, 1997, the Board found that the Respondent
herein had made unlawful unilateral changes, including
discontinuing its past practice of granting merit raises, in-
creases its unit employees’ contributions to their health in-
surance program, and imposing a total smoking ban.
In Dynatron/Bondo Corporation, 324 NLRB 572, is-
sued September 30, 1997, the Board found, among other
violations, that the Respondent herein had unlawfully
made a number of unlawful changes in working conditions
unilaterally, including unilaterally instituting new discipli-
nary rules, changing its parking policy and creating a new
policy for employees’ compensation during power out-
ages.

In view of the unilateral changes found unlawful by the
Board in the previous cases, and because the Respondent had
not remedied these changes, I concluded that a lawful impasse
did not exist.
Reviewing my decision, however, the Board determined that
I had not applied the correct legal standard, and remanded the
case to me for that purpose, stating, “for the judge to conclude
that the unremedied unfair labor practices prevented the parties
from reaching lawful impasse, he must first find that there was
a causal connection between the previous unfair labor practices
and the failure to reach an agreement.” The Board further
stated:

1 Appearing in bound volume as 323 NLRB 1263.
2 324 NLRB 572.
3 Other unremedied unfair labor practices include discrimination against
employees serving on the Union’s bargaining committee.
The record contains evidence of the parties’ extensive
bargaining, which the judge failed to discuss. Further, the
judge’s brief discussion contains no explanation for why
he believed the bargaining was adversely affected by the
Respondent’s prior unfair labor practices.

Dynatron/Bondo Corp., 326 NLRB 1170 (1998).
I understand the Board’s concern to be grounded in the im-
portant principle that the Board’s authority is remedial, not
punitive. Ordinarily, an employer which bargains in good faith
may implement its final offer at impasse. Denying the Respon-
dent this right would be punitive unless the evidence establishes
that the unremedied unfair labor practices had an adverse im-
pact on the negotiations.
If the previously found and still unremedied unfair labor
practices did push the negotiators in the direction of impasse,
then the claimed impasse resulted from the Respondent’s own
wrongdoing. Therefore, allowing Respondent to implement its
final offer would violate the principle that a wrongdoer should
not be permitted to benefit from its unlawful action.
There is no conflict between the principle that the Board’s
authority to order relief is remedial, not punitive, and the prin-
ciple that a wrongdoer should not profit from its transgression.
If the unremedied unfair labor practices pollute the negotiating
atmosphere and make agreement less likely, this consequence
must be addressed and rectified, not as punishment, but as part
of restoring the status quo which existed before Respondent
broke the law.
The inquiry must begin by identifying the unfair labor prac-
tices which the Board found in the two previous cases cited
above. Then, I must determine what effect, if any, these unlaw-
ful acts had on the negotiations.
The Board has found, inter alia, that Respondent violated the
Act by discharging, at various times, three members of the
Union’s negotiating committee, by discharging another em-
ployee who supported the Union, and by converting the resig-
nations of three union negotiating committee members into
discharges. These unlawful acts of discrimination against un-
ion negotiators all took place during the course of the bargain-
ing which began in July 1993 and ended with the Respondent’s
unilateral implementation of its wage and group health propos-
als on October 25, 1996.
In the previous cases, the Board also found that the Respon-
dent violated Section 8(a)(5) and (1) of the Act by unilaterally
changing a number of terms and conditions of employment
which were mandatory subjects of bargaining, without reaching
either agreement with the Union or lawful impasse. These
unlawful changes included discontinuing the practice of grant-
ing merit increases to employees after their 90-day probation-
ary periods and after their anniversary dates, unilaterally in-
creasing employee contributions to group health insurance
premiums, changing its smoking policy from a partial to a
complete ban, promulgating a new disciplinary policy for mate-
rial handlers, and instituting new rules regarding parking, late
arrival, failure to bring identification cards to work, and for
payment in the event of a power outage.
The unlawful discharge of members of the Union’s negotiat-
ing committee has an obvious effect on the bargaining process.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 756
Moreover, these unfair labor practices entailed more than ter-
minating the employment of the Union’s negotiators. Signifi-
cantly, Respondent’s unlawful conduct also included a continu-
ing refusal to reinstate these employees. These acts of discrimi-
nation produced a number of effects which have an adverse im-
pact on the bargaining process.
Most obviously, the unlawful firing of employees on the Un-
ion’s bargaining team reasonably and forseeably interfered with
the continuity of that committee and, therefore, hindered the
Union’s ability to negotiate. The Union’s chief negotiator,
Harris Raynor, credibly testified that “as individual members of
our committee left, whether voluntarily or not, it was very dif-
ficult to replace them. Getting people to volunteer to be on the
committee was difficult because people felt that there might be
retribution taken against them.”
In its brief, Respondent urges that Raynor’s testimony be re-
jected. It argues that the evidence “shows that none of the un-
remedied unfair labor practices had any effect on the progres-
sion of the parties’ negotiations, much less precluded agree-
ment from being reached.” Respondent asserts that the unre-
medied unfair labor practices had no effect on the ability of the
Union to get employees to serve on its bargaining committee.
Respondent further stated:

The Union’s contention that employee support was
undermined by fear of retaliation is further belied by the
fact that employee participation was greater in 1996 than
in prior years. Indeed, more employees participated in the
final negotiating meetings than ever before. (R.Br. 17,
emphasis in original.)

Based on Raynor’s demeanor as a witness, however, I credit
his testimony. I also reject Respondent’s argument because
there is no showing that the number of employees who showed
up as union negotiators bore any reliable relationship to the
level of fear created by Respondent’s unlawful discharges. The
record does not reflect how many employees declined the Un-
ion’s request for volunteers.
Additionally, I reject Respondent’s related argument that the
continued presence at the bargaining table of an employee after
his unlawful discharge demonstrates that the firing of this em-
ployee did not affect negotiations. Specifically, Respondent’s
brief asserted that Lamar Shelton, who was discharged unlaw-
fully, “continued to participate in the negotiations even after he
was terminated in March 1996 . . . . In fact, his termination was
discussed during the April 8, 1996, negotiation meeting. Noth-
ing in the negotiating notes show, however, that Shelton’s ter-
mination adversely affected the parties’ ability to negotiate
during that session or any of the subsequent sessions.” (R.Br.
17–18.)
It certainly is true that the notes of the April 8, 1996
negotiating session do not indicate that a brawl ensued after
Shelton showed up. The notes do not even suggest that the
negotiators reacted to each other with greater-than-usual
acrimony. The absence of overt hostility, however, does not
signify that Respondent’s unlawful discharge of Shelton had no
effect on the negotiations simply because he continued to
attended some bargaining sessions.
Under the logic of Respondent’s argument, a chemical would
not be considered toxic unless the body reacted immediately
with coughing and gagging in protest. The most insidious con-
taminants only become manifest over time and through the
silent damage they produce. It would be naive to conclude that
Respondent’s unlawful discharge of this negotiator caused no
harm to the process of reaching agreement simply because it
did not turn a bargaining session into the Jerry Springer Show.
Moreover, the fact that negotiators spent considerable time
discussing a discharge which the Board has found discrimina-
tory and unlawful plainly demonstrates that the unfair labor
practices were having a detrimental effect on bargaining. Fo-
cus on Respondent’s unlawful discrimination necessarily de-
tracted from discussion of the parties’ contract proposals.
The unlawful discharges of union committee members nec-
essarily caused other types of harm to the bargaining process,
as well. Regardless of whether the fear of retaliation reduced
the number of employees on the Union’s bargaining committee,
it foreseeably would discourage them from speaking candidly
about workplace problems. Such fear chills the open, robust
discussion which facilitates effective negotiation.
The specter of discrimination evoked by the unlawful dis-
charges also interfered with the development of the working
relationships necessary to reach compromise on sensitive is-
sues. These unremedied unfair labor practices destroyed the
essential ingredient of trust.
In theory, perhaps, opposing sides might be able to reach an
agreement without ever trusting each other at all. In labor ne-
gotiations, however, experience demonstrates that progress at
the bargaining table bears a direct relationship to the success of
the parties in building some degree of trust. Nothing can de-
stroy trust more quickly than Respondent’s unlawfully dis-
charging members of the Union’s negotiating team. Refusing
to reinstate these employees, even after the Board ordered Re-
spondent to do so, perpetuated a bargaining relationship barren
of trust.
In assessing the adverse impact on trust, the unlawful dis-
charges should be viewed together with Respondent’s other
unremedied unfair labor practices. When employees consid-
ered the Respondent’s unlawful firings of union negotiators,
they would also take into account the numerous changes in
working conditions which Respondent unlawfully made over
the course of negotiations.
All of the unlawful acts, considered together, conveyed a
message of intimidation. These unfair labor practices, and the
Respondent’s refusal to remedy them when ordered to do so,
constituted a demonstration of raw power seemingly unre-
strained by law. The pervasive impact of the unlawful acts, and
Respondent’s continued willingness to disregard the labor law,
could only broadcast to the employees a calculated message
that “resistance is futile.”
These acts did not build trust in Respondent’s good faith at
the bargaining table, but signalled the opposite, a trust–
destroying demand for surrender. The Union did not surrender,
and the bargaining process continued until Respondent declared
impasse in October 1996. However, the fact that negotiations
did not die instantly does not signify an absence of serious in-
jury to the bargaining process.
DYNATRON/BONDO CORP. 757
Notes of the bargaining sessions reflect how the unremedied
unfair labor practices injected a continuing tension which made
a meeting of the minds more difficult. This tension is readily
apparent, for example, in the following exchange between Re-
spondent’s attorney, Walter Lambeth (WL), and the Union’s
chief negotiator, Harris Raynor (HR), reported in the notes of
the September 25, 1996 bargaining session:

HR: What about Hours of Work and Overtime? You
got a new proposal.
WL: We have gone through and explained our posi-
tion on that. We reject it completely. We have no further
movement.
HR: That doesn’t mean we may not have movement
on other proposals.
WL: Do you have any?
HR: It takes time.
WL: I suggest you get on with it. These people have
been sitting around without an increase for three years,
while you’re fooling around. We’re ready right now for
you to take this proposal to your people. We want to wrap
this up.
HR: We think consideration of the Labor Board will
more than compensate these people. I don’t think people
need to worry that something is being held from them. I
think when the Labor Board goes back and recalculates the
back pay, there may be some substantial money—far more
than what you are offering in your proposal.
WL: We’re not the first bit concerned with what the
Labor Board is doing. We’re concerned with these nego-
tiations at this table. I suggest you forget about the Labor
Board and get on with getting to an agreement.

Respondent’s implication that the Union was allowing the
charges it filed with the Board to distract it from the task of
negotiating, has a particularly disingenuous ring, considering
that the Respondent’s unlawful actions had prompted filing of
the charges. Indeed, Respondent’s violations of the labor law
have been established in two separate proceedings and are now
beyond question.
Therefore, Respondent’s criticizing the Union for filing
charges with the Board seems about as appropriate as taking a
hammer under the poker table, hitting the opponent’s big toe,
and then responding to his exclamations with a demand that he
shut up and play cards. No one can doubt that it is the hammer
blow, not the resulting howl of pain, which is responsible for
the disruption. Likewise, any harm to the negotiating process
originated in the Respondent’s unlawful acts, not in the Union’s
lawful protest of them.
Still, the statements by Respondent’s attorney to the union
negotiator, that the Union should stop “fooling around” and
should “forget about the Labor Board and get on with getting to
an agreement,” indicate the harm the unfair labor practices had
caused to the bargaining process. Such statements are symp-
toms of a frustrating disorder in bargaining, even if incorrect as
to its etiology.
Bargaining notes reflect that Respondent’s unlawful unilat-
eral changes particularly harmed the bargaining process from
the very outset. This impact becomes clear by examining how
individual unilateral changes affected negotiations.
Before bargaining began on July 27, 1993, Respondent an-
nounced it was changing its policy concerning employees
smoking on the premises, resulting in a total ban. In Dyna-
tron/Bondo Corp., 323 NLRB 1263 (1997), the Board found,
inter alia, that respondent made this change without notice to or
bargaining with the union, and that it violated Section 8(a)(5)
and (1) of the Act. In the same decision, the Board also found
that respondent had committed unfair labor practices when it
increased employee contributions to their health insurance pre-
miums after the union was certified as the employees’ exclusive
bargaining representative in 1991.
Bargaining notes establish that discussion of the unilateral
change in smoking policy consumed a significant portion of the
parties’ time at the first negotiating session and continued to be
a source of disagreement in bargaining. At the first bargaining
session, negotiators also came into conflict over the Respon-
dent’s unlawful change in health insurance premiums. Bargain-
ing notes reflect the following exchange between the Union’s
representative, Harris Raynor (HR), and the Respondent’s at-
torney, Walter Lambeth (WL):

HR: The union will continue to insist that the com-
pany return any increased amount of premium and any
change made in November 1991, when you normally re-
view insurance costs. We want to know what changes
were made in 1991.
WL: These are complaints that are there with the
Board. It is up to the Labor Board to decide what they
want to do. I am not at this point sure what our position is.
That is the decision of the company. I don’t think it would
be appropriate for us to respond. Not about matters that
are pending in litigation. [Emphasis added.]

Respondent’s unwillingness even to discuss the substance of
the change in health insurance premiums at this first bargaining
session provides compelling evidence of the chilling effect this
unfair labor practice had on negotiations. Although Respon-
dent offered, as a reason for its refusal to discuss this issue, the
fact that unfair labor practice litigation was pending, that reason
is hardly persuasive. Respondent’s unlawful conduct resulted
in the unfair labor practice litigation, and it cannot rely upon
the consequences of its own unlawful acts to excuse its lawful
bargaining obligation.
Although Respondent’s unilateral changes in smoking policy
and health insurance premiums had an adverse impact on bar-
gaining, another unlawful change caused even greater damage
to negotiations. In Dynatron/Bondo Corp., 323 NLRB 1263
(1997), the Board also found that the respondent had an estab-
lished pattern and practice of granting raises to employees on
their probationary or annual anniversary dates and that the em-
ployees had come to view these increases as fixed terms and
conditions of employment.
In May 1993, well after the Union became the certified bar-
gaining representative but before the first negotiating session,
Respondent discontinued its practice of granting such wage
increases without notifying or bargaining with the Union. The
Board found that this change violated Section 8(a)(5) and (1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 758
The bargaining notes reflect that this unilateral action had a
significant and continuing effect on the negotiations. At the
September 9, 1993 session, for example, Union Representative
Harris Raynor and Respondent’s attorney, Walter Lambeth, had
the following exchange:

HR: Do you have a policy for evaluating employees
approximately on anniversary date and at other times be-
fore? It’s a simple question. It’s also part of a written re-
quest.
WL: You’ll get responses to your legitimate requests
for information. Your real purpose in asking this is to file
charges against this company so that you can continue
your pattern of harassment of this company, and that is
why I want to make certain that when you get an answer, it
is accurate. If you were honestly seeking information for
purposes of bargaining, it might be a little easier to com-
municate.

The unlawful discontinuation of the periodic raises continued
to be a source of friction throughout negotiations. When this
issue arose during the October 6, 1994 session, for example,
Respondent’s attorney told the Union that the Respondent
could not “go back and correct these things” because the Union
had “our hands tied. We are locked in.”
At the June 17, 1996 session, the Union asked if employees
received a bonus for perfect attendance. The Respondent’s
attorney responded, “They get $25.00. Are you going to file a
charge about that?”
Throughout negotiations, Respondent made such statements,
indicating that it blamed the Union for filing charges and that it
considered the charges a source of delay and an impediment to
bargaining. However, Respondent’s logic does not go quite far
enough. The undeniable strains which Respondent tried to
attribute to the unfair labor practice charges actually arose be-
cause of the unlawful acts which precipitated them.
As the exclusive representative of the bargaining unit em-
ployees, the Union had every right to file charges with the
Board and to seek a remedy for the Respondent’s unfair labor
practices. It cannot be blamed for trying to right the wrong
done to the employees it represents.
Under the law, the Union’s assertion of its legal rights does
not constitute an impediment to bargaining. Rather, it is Re-
spondent’s unlawful unilateral actions, and its refusal to undo
them, which burdened and obstructed the negotiating process.
Such changes show Respondent’s contempt for its bargaining
duty more dramatically, and more painfully, than if Respon-
dent’s negotiators had greeted their union counterparts each
time with a salute of thumb to nose.
As the administrative law judge stated in Alwin Mfg. Co.,
326 NLRB 646 (1998), “While no unfair labor practice is in-
significant, in the context of determining whether an impasse is
present, some have more significance than others in the negoti-
ating process and its progress. For example, unilateral changes
in employees’ terms and conditions of employment may consti-
tute significant violations of the Act in the context of which
misconduct, no lawful impasse can be reached.” Affirming, the
Board stated:

During the time period covered by the present pro-
ceeding, the Respondent still has not complied with the
remedial obligations imposed by [the Board’s previous or-
der]. Rather, as the judge correctly observed, “the Respon-
dent, without hiatus, has continued to enforce its unlaw-
fully implemented vacation policy and minimum produc-
tion standards, has continued to discipline employees for
not meeting those standards and has inflexibly insisted on
including these terms in the next collective-bargaining
agreement.”
Indeed, the judge specifically found that the Respon-
dent’s insistence on maintaining the unlawfully imple-
mented employment terms resulted in friction and dis-
agreement at the bargaining table and ultimately was re-
sponsible, in material part, for the breakdown in negotia-
tions.

Alwin Mfg. Co., Inc., above. I find that the Respondent’s con-
duct in the present case is remarkably close to the actions which
the Board found violative in Alwin.4 See also Great Southern
Fire Protection, 325 NLRB 9 (1997); Intermountain Rural
Electric Assn., 305 NLRB 783 (1991).
In sum, I find that Respondent’s unremedied unfair labor
practices had a direct, serious, and pervasive adverse effect on
the collective-bargaining process. Further, I find that there is a
causal connection between these unremedied unfair labor prac-
tices and the parties’ failure to reach agreement. Therefore, I
conclude that Respondent could not lawfully declare impasse
and implement its wage and group health insurance proposals.
CONCLUSIONS OF LAW
1. Dynatron/Bondo Corporation, is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act.
2. Union of Needletrades, Industrial and Textile Employees,
AFL–CIO is a labor organization within the meaning of Section
2(5) of the Act.
3. The following employees of Respondent (the unit), con-
stitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
All production and maintenance employees by the Respon-
dent at its Atlanta, Georgia facility, including all quality control
technicians, but excluding all office clerical employees, techni-
cal employees, laboratory and professional employees, guards,
and supervisors as defined in the Act.
4. At all times since June 5, 1991, based on Section 9(a) of
the Act, the Union has been the exclusive collective-bargaining
representative of the unit.
5. Respondent violated Section 8(a)(5) and (1) of the Act, by
on/or about October 25, 1996, unilaterally implementing its

4 In Alwin, the administrative law judge ordered the respondent to re-
imburse the union for expenses related to negotiations, and also ordered
the respondent to reimburse the union and the General Counsel for
litigation costs. The respondent did not file exceptions to these re-
quirements and the Board adopted them.
In the present case, the General Counsel has not sought reimburse-
ment of either negotiation or litigation expenses. In the absence of such
a request, I will not reach the issue of whether such remedies would be
appropriate here.
DYNATRON/BONDO CORP. 759
contract proposals regarding wages and group health insurance
when it was in negotiations with the Union for a collective-
bargaining agreement, and at a time when Respondent’s prior
unremedied unfair labor practices, affecting negotiations, pre-
cluded a lawful impasse.
6. This unfair labor practice affects commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act, described below in the recom-
mended Order, including posting the notice to employees at-
tached as an appendix.
I hereby issue the following recommended5
ORDER
The Respondent, Dynatron/Bondo Corporation, of Atlanta,
Georgia, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Making unilateral changes in its employees’ wages and
group health insurance without providing the Charging Party
adequate notice of the proposed changes and adequate opportu-
nity to bargain about them.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) At the Charging Party’s request, rescind the changes it
made on or about October 25, 1996, by implementing its wage

5 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
and group health insurance proposals unilaterally, and restore
the terms and conditions of employment pertaining to wages
and group health insurance which were in effect before it
unlawfully changed them.
(b) To the extent that any employee was affected adversely
because of the changes in wages and group health insurance
which the Respondent made unilaterally on about October 25,
1996, the Respondent shall make each such employee whole,
with interest, for all losses the employee suffered because of the
unlawful changes.
(c) Preserve and, on request, make available to the Board or
its agents for examination a copy of all payroll records, social
security records, timecards, personnel records and reports, and
all other records necessary to analyze the amount of backpay
which may be due under this order.
(d) Within 14 days after service by the Region, post at its fa-
cilities in Atlanta, Georgia, copies of the attached notice
marked “Appendix.” Copies of the notice, on forms provided
by the Regional Director for Region 10, after being signed by
the Respondent’s authorized representative, shall be posted by
the Respondent immediately on receipt and maintained for 60
consecutive days in conspicuous places including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to ensure that the
notices are not altered, defaced, or covered by any other mate-
rial. In the event that, during the pendency of these proceed-
ings, the Respondent has gone out of business or closed the
facility involved in these proceedings, the Respondent shall
duplicate and mail, at its own expense, a copy of the notice to
all current employees and former employees employed by the
Respondent at any time since October 25, 1996.
(e) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Regional Director attesting to the
steps that the Respondent has taken to comply.