Emhart Industries

National Labor Relations Board - Board Decisions

Nov 13, 1989

297 N.L.R.B. 215 (N.L.R.B. 1989)

'EMHART INDUSTRIES 215
Emhart Industries, Hartford Division and Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, Local 376. Cases 39-CA-1642, 39-CA-
2159, and 39-CA-2327
November 13, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND HIGGINS
On April 18, 1986, Administrative Law Judge
Wallace H Nations issued the attached decision
The General Counsel and the Charging Party filed
exceptions and supporting briefs, and the Respond-
ent filed a 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 the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions to the extent that they are consistent
with our Decision and Order
1 The General Counsel alleged that the Re-
spondent violated Section 8(a)(5) of the Act in
March 1983 2 by failing and refusing to bargain
with the Union over the procedure to recall former
economic strikers The judge dismissed the allega-
tion and we adopt the dismissal for the reasons
stated below
The pertinent facts for our decision are as fol-
lows On Wednesday, March 16, the Union sent a
telegram to the Respondent offenng to return to
work from an economic strike that began in Sep-
tember 1982 Because of lack of work in process
and because maintenance needed to be done, the
Respondent did not need a full complement of em-
ployees immediately The Respondent's vice presi-
dent, Donald MacKay, told Union President Phil-
lip A Wheeler this on March 17 Later that day
the Respondent sent a telegram to the Union that
stated
Reinstatement of strikers will begin on
Monday, March 21st Employees who are to
return next week will be notified by telephone
or telegram All other employees will prompt-
ly receive [unemployment compensation] slips
by mail We request meeting with you and
' The General Counsel has excepted to some of the judge s credibility
findings The Board's established policy is not to overrule an administra-
tive 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 re-
versing the findings
2 The following dates are 1983 unless otherwise indicated
your committee to discuss return to work and
other issues Suggest 1 30 p m Tuesday,
March 22nd Please advise promptly
On Friday and through the weekend, the Respond-
ent notified the employees, including certain stew-
ards, that it needed to reopen the plant It is undis-
puted that the employees were reinstated to the
jobs they held immediately prior to the strike and
those reinstated were the most senior in their re-
spective classifications Approximately 70 employ-
ees returned to work on Monday, March 21
During the day on Monday, Union Shop Chair-
man Joe Belliveau filed several grievances includ-
ing one that stated, "Employer has laid off wrong
employees Request that Employer reinstate proper
employees" The Respondent later met with the
Union over this grievance in second- and third-step
meetings and the grievance was denied
At the parties' meeting on Tuesday, March 22,
the Respondent inquired about who was to pay for
the insurance for unremstated strikers After discus-
sion of this issue, the Respondent inquired about
union steward representation of employees who
had been called back and asked if the Union
wanted to appoint stewards Wheeler responded
that the Union already had stewards and it wanted
them called back pursuant to the expired contract
The union representatives then inquired about spe-
cifics of what work the Respondent had subcon-
tracted during the strike and about other issues
The judge credited Cecily Emond, the Respond-
ent's manager of employee relations, who testified
that the Union asked no questions and made no
comments about the procedure that was being used
to reinstate employees
The judge dismissed the allegation that the Re-
spondent violated Section 8(a)(5) during these
March 1983 events He found that the Union did
not request bargaining over the reinstatement pro-
cedure until months after it was implemented 3 In
their exceptions, the General Counsel and the
Union argue that even if the Union did not request
bargaining over the reinstatement procedure for re-
turning strikers, a violation still occurred because
the Respondent implemented the procedure with-
out giving the Union an opportunity to bargain In
the circumstances of this case, we do not agree
It is incumbent on an employer who is going to
implement a term of employment such as a proce-
dure for reinstating employees from an economic
strike to give timely notice to the employees' rep-
3 We do not rely on any implication by the judge that under Indiana
Desk Co, 276 NLRB 1429 (1985), the Respondent had no obligation to
bargain over the procedure for reinstating strikers See Food Service Co,
202 NLRB 790, 804 (1973)
297 NLRB No 29
216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative As the Board stated in Intersystems
Design 4
To be timely, the notice must be given suffi-
ciently in advance of the change to allow a
reasonable opportunity to bargain However, if
the notice is too short a time before implemen-
tation or because the employer has no inten-
tion of changing its mind, then the notice is
nothing more than informing the union of a
fait accompli
If, however, a union has sufficient notice of a
contemplated implementation and does not request
bargaining, it waives the right to bargain and no
8(a)(5) violation flows from the implementation
Medzcenter, Mid-South Hospital, 221 NLRB 670
(1975) What constitutes sufficient notice and what
constitutes a sufficient request to bargain depends
on all the circumstances of a case 5
With regard to whether the Respondent's notice
gave the Union sufficient time to request bargain-
ing we note that, depending on when it received
the Respondent's telegram, it had 3 to 4 days in
which to respond In the circumstances of this
case, this was sufficient time We note that the
Union informed the Respondent on March 16 of its
offer to return to work the next day The Respond-
ent had no notice of an imminent return before that
date As of March 16 the Union had been on stnke
and the plant had been closed for more than 5
months We also note that after receiving the
Union's telegram, the Respondent operated under
the understanding that it was required to reinstate
employees expeditiously 6
We also find that the Respondent's notice did
not reflect an intent not to change its mind Rather,
the telegram itself suggested a meeting with the
Union to discuss reinstatement Both the General
Counsel and the Union emphasize that the Re-
spondent suggested a meeting on Tuesday, the day
after implementation We do not find this persua-
sive First, we note that the Respondent was not
obligated to initiate bargaining As the Board stated
4 278 NLRB 759 (1986), quoting from Ciba-Geigy, 264 NLRB 1013,
1017 (1982), enfd 722 F 2d 1324 (7th Cir 1983)
5 Med:center, 221 NLRB at 678 Compare Medrcenter and Globe-Union,
222 NLRB 1081 (1976) (notice sufficient), with Alamo Cement, 277
NLRB 309, 314 (1985) (notice insufficient) Compare also MCA Distribut-
ing, 288 NLRB 1173 (1988), Al Landers Dump Truck, 192 NLRB 207
(1971), and Armour, 280 NLRB 824 (1986) (request sufficient), with
American Bushnes, 164 NLRB 1055 (1967), Kentron of Hawaii, 214 NLRB
834 (1974), and Clarkwood Carp, 233 NLRB 1172 (1977) (request insuffi-
cient)
6 This is not a case in which we are presented with the question of
whether the Respondent acted expeditiously in reinstating returning strik-
ers To the contrary, the Respondent clearly attempted to do so Rather,
the issue is whether the Respondent's expeditious reinstatement of strikers
was designed to, or resulted in, frustration of its bargaining obligations
For the reasons discussed, we hold that it did not
in Kentron, 7 "When an employer notifies a union of
proposed changes in terms and conditions of em-
ployment, it is incumbent upon the union to act
with due diligence in requesting bargaining" The
fact that the Respondent suggested a meeting on
Tuesday did not preclude the Union from suggest-
ing an earlier time There is no evidence on this
record that the Union, aware that reinstatement
would occur on Monday, made any attempt to
contact the Respondent about discussing the proce-
dure beforehand
Although the Respondent's notice did not specif-
ically state what procedure it would use in reinstat-
ing employees, it did communicate to the Union
that reinstatement would occur on Monday, the
use of some procedure was implicit Although
Union President Wheeler testified that he believed
that the Respondent would use plantwide seniority
in reinstating employees, which was the procedure
under the recall-from-layoff provision of the par-
ties' expired contract, there is no evidence that the
Respondent was responsible for his belief An em-
ployer is not obligated to follow a recall-from-
layoff provision in a strike situation in the absence
of the parties' agreement to do so Bio-Science Lab-
oratories, 209 NLRB 796 (1974) 8
Accordingly, we conclude that the Respondent's
method of reinstatement on Monday, March 21,
was not unlawful because notice was sufficient and
the Union did not request bargaining
Regarding events after reinstatement began on
Monday, we also find no violation As of that
point, it was incumbent on the Union to "indicate a
desire to negotiate" about reinstatement proce-
dures, MCA Distributing, supra, and it did not do
so It is clear that Union Shop Chairman Belliveau
had contact with Employee Relations Manager
Emond on Monday, but there is no evidence that
he or anyone else from the Union inquired about
the reinstatement procedure or requested the Re-
spondent to bargain about it Belliveau did give
Emond one grievance, among several, which stated
that the Respondent had "laid off the wrong em-
ployees under the normal and established proce-
dures" Although under certain circumstances a
grievance could be considered a request for bar-
gaming, 9 we do not believe that this grievance
7 214 NLRB at 835
9 We also agree with the judge that there was nothing inherently dis-
criminatory about the Respondent's method of selecting employees for
reinstatement, which was to identify the jobs required and reinstate the
employees who held those jobs before the strike There also was no
showing that the Respondent selected this method for discriminatory rea-
sons
9 See, e g, MCA Distributing, supra, though we note the special cir-
cumstances of that case, including the fact that the parties had a current
contract and grievance procedure
EMHART INDUSTRIES 217
constituted a request to bargain about the reinstate-
ment procedures As noted, the General Counsel
elicited no testimony that any union representative
made any contemporaneous inquiries or objections
about the general procedure Although it appears
likely in the circumstances, there is no evidence
that Emond read the grievance that day or even
that week There is no evidence that the Union
treated this grievance differently, in , terms of
making a request to bargain, from the other griev-
ances it submitted that day Rather, the evidence
indicates that the Union did not pursue the ques-
tion of reinstatement in general, but dealt with it
only as it related specifically to the recall of stew-
ards In this context, and in light of the March 22
discussion of steward recall (discussed below), we
do not find that the grievance alerted the Respond-
ent sufficiently to constitute a request to bargain
about the general reinstatement procedure
The parties met pursuant to the Respondent's
suggestion on Tuesday, March 22 As the judge
found, the Union neither inquired about nor object-
ed to the procedure used for recalling employees
The Union's interest, as indicated by the issues on
which it initiated discussion, was on whether, and
to what extent, the Respondent had subcontracted
work dunng the strike When the Respondent
raised the question of union steward representation,
the Union asserted that all the stewards should be
recalled pursuant to the expired contract 10 In our
view, the Union's proposed adherence to the ex-
pired contract in the recall and appointment of
stewards cannot reasonably be said to have consti-
tuted a demand for bargaining about the much
broader question of the procedures to be followed
in the overall reinstatement of the entire work
force "
In light of all the considerations discussed above,
we shall therefore dismiss the allegation that the
Respondent refused to bargain about the procedure
for the reinstatement of employees in March 1983
2 The General Counsel alleged that the Re-
spondent failed and refused to bargain in February
1984 when it changed the procedure for recalling
unreinstated strikers As more fully discussed in the
judge's decision, the parties bargained about the re-
instatement procedure from October to December
1983 In November 1983 the Respondent proposed
a four-page, eight-paragraph integrated document
titled "Special Reinstatement Procedure" On De-
'° The expired contract generally provided, as an organizational
matter, that the number of stewards would be determined according to
the total number of unit employees and/or supervisors
ii We note that the General Counsel neither alleged nor litigated a
separate violation based on a refusal to bargain about recall of stewards,
or on a unilateral change in the organizational basis for their appoint-
ment
cember 12 there were continued discussions about
reinstatement and the Respondent's proposal The
parties agreed to reinstitute the use of the "recall
selection form," which certain employees used to
designate the jobs to which they preferred to be re-
called, but the parties continued to disagree on su-
persemonty for stewards and other issues In Feb-
ruary 1984 the Respondent announced that it
would reinstate employees pursuant to two para-
graphs of the November proposal that provided for
using plantwide seniority when recalling employees
to their original job classifications and which pre-
scribed certain conditions for recall to other jobs at
the same or lower grade than the original job clas-
sification The Respondent subsequently recalled
employees accordingly
The judge dismissed the February 1984 unlawful
unilateral change allegation, finding that the parties
had reached an impasse on the procedure for rein-
stating strikers For the reasons stated by him, we
adopt the finding that the parties were at an im-
passe We do not, however, adopt the dismissal of
the allegation
Upon impasse an employer may implement
changes that are reasonably encompassed within its
pre-impasse proposals An implemented change
may not be substantially different from what had
been proposed earlier 12 Nor may changes differ
from an earlier agreement by the parties on the
subject 13
Here the Respondent's reinstatement procedure
as implemented in February 1984 constituted an
unlawful unilateral change because this procedure
reflected only a relatively small part of the com-
prehensive system proposed by the Respondent in
November (its last pre-impasse proposal) and failed
to include use of the "recall' selection form" agreed
on by the parties in December In particular, the
system as implemented failed to include the follow-
ing features of the November proposal (1) an em-
ployee's right to bid on a higher grade job once re-
called, (2) criteria for determining an employee's
eligibility for jobs other than his original job (in-
cluding a 5-day orientation penod to learn minor
job requirements), (3) a notification procedure for
employees pnor to an employment recall, and (4)
rights of unreinstated strikers who had bid on
openings in the plant We find, contrary to the Re-
spondent's contention, that these were not "minor"
omissions Because the February 1984 change in
the reinstatement procedure thus differed signifi-
cantly from both the Respondent's own proposal
and its agreement with the Union, we conclude
12 Tampa Sheet Metal Ca, 288 NLRB 322 (1988)
13 Sacramento Union, 291 NLRB 552 (1988)
218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that its unilateral implementation violated Section
8(a)(5)
3 The General Counsel alleged that the Re-
spondent violated Section 8(a)(5) in November
1983 by abandoning the arbitration procedures in
the parties' expired contract We adopt the judge's
dismissal, which predated our decision in Indiana &
Michigan Electric Co , 14 for the following reasons
The record contains very little evidence about
the Respondent's refusal to arbitrate certain griev-
ances The parties stipulated that the Union had re-
quested arbitration of grievances that arose after
the parties' contract expired and that the Respond-
ent had refused to arbitrate those grievances, but
they did not stipulate to the basis for the Respond-
ent's refusal The record also contains a letter from
the Union to the Respondent that requests arbitra-
tion on 10 grievances listed by number, date, and a
l-to-3 word description Grievances 1406-1411 had
dates prior to the September 12, 1982 expiration of
the contract, and grievances 1413-1417 had March
1983 dates Finally, there is a letter from the Re-
spondent that states that it is responding to the
Union's request to arbitrate grievances 1413-1417
The letter states, "Please note that there is no arbi-
tration clause currently in effect and we decline to
participate in the arbitration of these matters"
We find this case very similar to A H Belo
Corp , 15 in which the evidence regarding that re-
spondent's refusal to arbitrate was ambiguous on
the issue of whether it had made a blanket refusal
to arbitrate any grievance of any kind, whether or
not it would "arise under" the expired agreement
within the meaning of Nolde Bros v Bakery Work-
ers Local 358 16 As in A H Belo Corp, the Re-
spondent's letter does not clearly identify the
reason for refusing to arbitrate the listed grievances
and it is not clear that the Respondent took its po-
sition without reference to the content of the griev-
ance Accordingly, we cannot conclude that a pre-
ponderance of the evidence weighs in favor of
finding the kind of wholesale repudiation of the ar-
bitration procedure that was found unlawful in In-
diana & Michigan Electric 17
AMENDED CONCLUSION OF LAW
Substitute the following for Conclusion of Law
3
"3 The Respondent engaged in an unfair labor
practice within the meaning of Section 8(a)(5) and
(1) and Section 2(6) and(7) of the Act by unilateral-
i4284 NLRB 53 (1987)
i 5 285 NLRB 807 (1987)
16 430 US 243 (1977)
" Chairman Stephens would remand this portion of the case for the
judge to take further evidence in light of Indiana & Michigan Electric
ly changing the method of reinstating economic
strikers"
REMEDY
Having found that the Respondent has violated
Section 8(a)(5) and (1) of the Act, we shall order it
to cease and desist and, on the Union's request, to
reinstate the economic striker reinstatement proce-
dure in effect prior to the unilateral change in Feb-
ruary 1984, and to make whole all employees who
were denied recall because of the Respondent's
February unilateral change
ORDER
The National Labor Relations Board orders that
the Respondent, Emhart Industries, Hartford -Divi-
sion, Bloomfield, Connecticut, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Unilaterally changing the method for reinstat-
ing economic strikers in a manner substantially dif-
ferent from its pre-impasse bargaining proposals
and different from its agreements with the Union
(b) 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) Offer to unremstated stnkers who would
have been reinstated to available positions in the
absence of the Respondent's unlawful unilateral
change of reinstatement procedures, immediate and
full reinstatement to their former jobs or, if those
jobs no longer exist, to substantially equivalent po-
sitions, without prejudice to their seniority or any
other rights or privileges previously enjoyed
(b) Make whole any unremstated strikers de-
scribed in paragraph 2(a) for any loss of earnings
and other benefits suffered as a result of the unilat-
eral change in reinstatement procedure by payment
to each of them a sum of money equal to the
amount he or she normally would have earned
from the date they would have been reinstated to
the date of the Respondent's offer of reinstatement,
less net interim earnings, with backpay to be com-
puted in the manner prescribed in F W Woolworth
Go, 90 NLRB 289 (1950), with interest to be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987)
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
., - ' `EMIII ART INOUSTRIES 219
amount of backpay due under the terms of this
Order
(d) Post at its Bloomfield, Connecticut facility,
copies of the attached notice marked "Appen-
dix " 18 Copies of the notice, on forms provided by
the Regional Director for Region 34, 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
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply
18 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 refuse to bargain with Internation-
al Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, Local
376, by unilaterally implementing a new reinstate-
ment from strike procedure that is substantially dif-
ferent from our pre-impasse proposals or that is dif-
ferent from what we have agreed to implement
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
WE WILL offer unremstated strikers who would
have been reinstated but for our unilateral change
immediate and full reinstatement to their former
jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions without prejudice to their
seniority and other rights and privileges, and WE
WILL make them whole for any loss of earnings or
benefits'suffered by reason of our unilateral change,
plus interest
EMHART INDUSTRIES, HARTFORD DI-
VISION
Harvey Shrage, Esq , for the General Counsel
Burton Kamen and Kenneth Plumb, Esqs , of Hartford,
Connecticut, for the Respondent
William J Gagney Jr, Esq , of Hartford, Connecticut, for
the Charging Party
DECISION
STATEMENT OF THE CASE
WALLCE H NATIONS, Administrative Law Judge On
3 May 1983, International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, Local 376 (the Union), filed its charge in Case
39-CA-1642 against Emhart Industries, Hartford Divi-
sion (Respondent), and a complaint issued on 29 August
1984 The charge in Case 39-CA-2159 was filed on 3
May 1984, and a complaint issued on 21 September 1984
The charge in Case 39-CA-2327 was filed on 7 Septem-
ber 1984, and a complaint issued on 30 October 1984 On
30 October 1984, the officer in charge of Subregion 39 of
the Board issued an order further consolidating cases
which resulted in the consolidation of the three above-
named cases The three cases involved allegations by the
Union that Respondent has violated the National Labor
Relations Act (the Act) by failing and refusing to bargain
with the Union as more specifically set out below
A hearing was held before me on 25 and 26 June 1985
Subsequently, briefs were received from the General
Counsel, Respondent, and the Charging Party
I THE BUSINESS OF RESPONDENT
Respondent has admitted that it is a Connecticut cor-
poration with an office and place of business in Windsor
and Bloomfield, Connecticut The Company is engaged
in the manufacture and nonretail sale and distribution of
glass forming machinery and related products During a
representative period of time, Respondent, during the
course and conduct of its business operations described
above, purchased and received at the Windsor and
Bloomfield facilities products, goods, and materials
valued in excess of $50,000 directly from points outside
the State of Connecticut Respondent is now, and has
been at all times material, an employer engaged in com-
merce within Section 2(2), (6), and (7) of the Act I find
that it will effectuate the policies of the Act to assert ju-
risdiction in this proceeding
II THE LABOR ORGANIZATION INVOLVED
The Union is now, and at all times material has been, a
labor organization within the meaning of Section 2(5) of
the Act
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III THE ALLEGED UNFAIR LABOR PRACTICES
The unfair labor practices involved in this proceeding
fall into three primary categories First it is alleged that
Respondent has failed and refused to bargain with the
Union regarding the procedure to be utilized in recalling
unremstated strikers and has unilaterally implemented a
system for recalling strikers that is not consistent with
plantwide seniority Second it is alleged that Respondent
has violated Section 8(a)(1) and (5) of the Act by unilat
erally abandoning the arbitration procedures set forth in
the parties expired collective bargaining agreement with
out prior notice to the Union and without affording the
Union the opportunity to negotiate and bargain with Re
spondent over this matter Third, it is alleged that Re
spondent has violated the Act by bypassing the Union
and dealing directly with employees by (a) informing
employees that it would be futile for them to retain a
union as their bargaining representative (b) threatening
employees with loss of employment and unspecified re
pnsals unless they abandoned the Union (c) promising
its employees by soliciting their complaints and gnev
ances, increased benefits and improved terms and condi
tions of employment, and (d) negotiating with bargaining
unit employees concerning the terms and conditions of
employment
A Allegations Relating to Reinstated Strikers and
Respondents Refusal to Bargain
1 Facts relating to reinstatement issue
In September 1982, following the expiration of a col
lective bargaining agreement which had been in effect
since 1979, the Union engaged in a strike which contm
ued until mid March 1983 1 On 16 March the Union sent
Respondent a telegram stating that its members were of
fermg to return to work effective Thursday 17 March
This telegram was the Company s first indication that the
Union was ending the strike On the same day, Respond
ent sent the Union a telegram acknowledging receipt of
the Union s telegram and stating that it was in the proc
ess of reviewing the situation including production and
personnel needs and would respond further in the next
few days At this time the Company s manufactunng
area was practically empty and most of the work in
progress had been finished by salaried employees or sub
contracted
On the morning of 17 March Local Union President
Phillip A Wheeler appeared at the plant with a number
of employees who were prepared to begin work The
gates were closed and a notice was posted stating the
Company would contact the employees individually
Wheeler requested a security guard to arrange a meeting
with vice president of labor relations for Respondent
Donald MacKay Shortly thereafter Wheeler met
MacKay at the plant gate and Wheeler asked MacKay
why he was not allowing employees to go back to work
and whether the Company was locking them out
MacKay replied the employees were not being locked
out but due to plant conditions some maintenance and
1 All dated are in 1983 unless otherwise indicated
problems employees would be brought back first to get
the plant ready for operation MacKay also indicated
that employees would be receiving unemployment corn
pensation slips
Later that day MacKay sent Wheeler a telegram stat
mg
1 Reinstatement of the strikers would begin on
Monday March 21
2 Those employees who would return on that
day would be notified by telegram or telephone
3 All other employees would promptly receive
unemployment slips in the mail and
4 The company requested to meet with the
Union s negotiating committee to discuss the return
to work of the employees as well as other issues
The suggested meeting time was 1 30 p m, on Thursday
22 March
Wheeler testified that at this time it was his belief Re
spondent would utilize a recall procedure outlined in the
parties expired labor agreement Under the parties ex
pired agreement the recall of employees from layoff was
based upon plantwide seniority
On the other hand, because of the absence of work on
the floor it was Respondent s position that it was impos
sible to reinstate even a majority of the strikers for some
period of time Only certain setup people as well as some
of the production/manufacturing people would be
needed to initially get the plant into working order To
meet these needs the Company decided to determine
which job classifications were needed and reinstate the
individuals who held those positions at the time of the
strike Approximately 70 workers were reinstated on
Monday 21 March These employees were reinstated to
the jobs they held immediately prior to the stnke and
they were the most senior people in those job classifies
tions
Shortly after the workers returned Joe Belliveau the
union shop chairman filed several grievances with
Cecily Emond the Hartford Division manager of em
ployee relations In one of the grievances the Union
contended the Company had reinstated the wrong em
ployees and requested the employees be recalled in ac
cordance with the provisions of the expired agreement
Respondent made no attempt to discuss its reinstatement
procedure with the Union prior to its implementation on
21 March
On 22 March the Union and Respondent held a meet
mg at the State Labor Department as requested in Re
spondent s earlier telegram It is undisputed by the par
ties questions of supersemonty and insurance were dis
cussed at this meeting There is a dispute however as to
what was said by the parties regarding reinstatement of
employees generally Wheeler testified he complained
about the manner in which the Company recalled the
strikers According to Wheeler Respondent s position
was it had no obligation to recall the stewards back and
they had no obligation to follow any procedure for rein
stating strikers Wheeler testified the Union disagreed
with the Company s position and if Respondent did not
wish to follow the established procedures outlined for re
EMHART INDUSTRIES 221
calling employees in the expired collective-bargaining
agreement, the Company had an obligation to bargain
with the Union over the implementation of the new pro-
cedure Wheeler testified the Company, at that point,
took the position that it could recall the employees as it
wished
Cecily Emond, present at the meeting for Respondent,
testified that there was no discussion of the recall of
strikers issue Both of the witnesses offering this conflict-
ing testimony appeared to be truthful However, a letter
sent shortly after the meeting from Wheeler to MacKay
mentions the 22 March meeting as well as another meet-
ing on 30 March and makes certain information requests
.. The letter also notes that a large number of bargaining
unit employees had not yet returned to work The letter
makes no mention of the recall procedure or a request to
bargain over that procedure Based primarily on the fact
that this letter makes no mention of the recall procedure
or the request to bargain over it, I credit Emond's state-
ment that the subject did not come up at the 22 March
meeting
On 3 May the Company filed an unfair labor practice
charge alleging Respondent had failed and refused to
bargain collectively and in good faith with the local
Subsequent to an investigation, during the second week
of August the parties were informed by the Subregional
Office that a complaint and notice of hearing would issue
alleging, among other things, that Respondent failed to
bargain over the procedure for recalling economic strik-
ers
On 25 August MacKay sent a letter to Wheeler stat-
ing, among other things, that the Company has been, and
remains, willing to discuss the procedures for reinstating
economic strikers The letter also stated the Union had
never raised the issue at the bargaining table, although
seven negotiation sessions have been held since the rein-
statement process began The letter also addressed other
issues Wheeler responded to this letter with a letter of
his in which Wheeler disputed MacKay's claim that the
Union had not previously raised the recall issue Wheeler
agreed to meet and suggested MacKay either follow the
normal procedure and contact a mediator or as an alter-
native contact Wheeler directly and set up a meeting
In a letter dated 9 September MacKay responded to
Wheeler's letter by offering to discuss the issues in ques-
tion prior to, during, or after Wheeler's third-step griev-
ance meeting MacKay indicated that he did not believe
the formality of a mediator and offsite meetings were
necessary, and agreed to such meetings if the Union so
desired MacKay suggested Wheeler contact him or the
mediator and set up a meeting
On 26 October the Union and the Company held a ne-
gotiating session Wheeler initiated the discussion con-
cerning the procedure utilized for recalling strikers
Wheeler asked why the Company was unwilling to
recall striking employees under the terms of the old con-
tract The Company's representative responded the pro-
cedure utilized was the most efficient manner in getting
the plant back into operation after the strike ended
Wheeler asked why union stewards were not recalled
pursuant to the supersemonty clause in the contract since
the stewards were familiar with the jobs to be per-
formed The Company responded they did not want to
recall stewards and let them bump people The Union
formally proposed the Company recall employees in the
future by plantwide seniority as outlined in the expired
agreement and immediately recall union stewards and if
necessary bump employees to make room for the union
stewards The Union proposed that past liabilities be left
in negotiation
The Company countered the Union's proposal by of-
fering to recall in the future by plantwide seniority if (1)
the Union would settle all pending related grievances, (2)
eliminate the Company's prior liability, and (3) agree to
eliminate the mandatory trial period provided for in the
expired agreement and allow the Company to recall
based on an employee's skill and ability The Company
refused to agree to recall union stewards After a caucus,
the Union agreed to substitute a 5-day familiarization
period for the mandatory trial period Additionally, the
Union modified its requirements that the stewards be im-
mediately recalled and was requested the stewards be the
first employees recalled for future employee needs The
session ended with the Company offering to put its pro-
posal in writing
At the next negotiating session, the Company submit-
ted a proposal entitled, "Special Reinstatement Proce-
dure" Although the parties generally agreed vacancies
be filled by plantwide seniority, Wheeler informed the
Company that the second paragraph, the "Release
Clause," went beyond its earlier proposal in that it condi-
tioned settlement of the recall issue not only upon the
resolution of outstanding grievances, but upon the
Union's waiver of all claims (except unfair labor prac-
tices) involving the reinstatement procedure The Union
also questioned several other proposals
In a 10 November letter the Company informed the
Union that the "Release Clause" was not a condition of
settlement On 23 November Wheeler responded by dis-
puting the Company's claim in its 10 November letter
that the Union insisted the Company withdraw a portion
of its proposals, and the Union offered proposals which
included the Company deleting the second paragraph in
its 4 November proposal
On 12 December the parties met for a negotiating ses-
sion agreeing to reinstitute the recall selection form and
to utilize plantwide seniority However, they disagreed
on other aspects of the proposal including supersemonty
On the morning of 22 December, Emond informed
Shop Chairman Belliveau that the Company wanted to
implement the 4 November proposal with regard to fill-
ing two vacancies at its Bloomfield facility Belliveau in-
formed Emond the Union would not agree to such a
procedure until bargaining was completed on the recall
of strikers issue The vacancies were filled utilizing the
procedure which had been in effect since the strike
ended On 1 February, another vacancy arose and
Emond approached Belliveau and Local Union Officer
Madore offering to apply the plantwide seniority proce-
dure contained in paragraphs 1 and 2 of the Special Re-
instatement Procedure The Union again objected to this
procedure until the matter had been settled by negotia-
tion The Company filled the position utilizing the proce-
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dure it had been following since the strike ended There-
after, according to the Company, because of the difficul-
ty of distinguishing the legal rights of two categories of
employees, unreinstated strikers and laid-off employees,
the Company on 10 February informed the Union it
would be implementing the plantwide seniority proce-
dure contained in paragraphs 1 and 2 of the Special Re-
instatement Procedure Since February 1984, vacancies
have been filled using the plantwide seniority method
2 Conclusions relating to the March reinstatement
procedure and the bargaining issue
There are two primary areas of concern involved in
the reinstatement issue One is whether Respondent had
an obligation to bargain with the Union before initiating
a reinstatement policy upon receipt of an unconditional
offer to return to work or within a reasonable time there-
after initiate such bargaining Second, after bargaining
over this issue had occurred, did the Company act in bad
faith by unilaterally instituting a recall procedure in Feb-
ruary 1984 that differed from the procedure it had used
at the end of the strike
Before discussing the details of these concerns, I find,
under the circumstances which existed at the time the
unconditional offer to return to work was made, the
recall procedure utilized by the Company was not inher-
ently destructive of Respondent's employees' Section 7
rights and it was prompted by legitimate business con-
cerns Indeed, the General Counsel does not seriously
urge the fault with the Company's action lies with the
plan that it did implement, but rather with its refusal or
failure to bargain over the procedure to be used with the
Union prior to implementation
The Board's decision in the recent case of Indiana
Desk Go, 276 NLRB 1429 (1985), 2 clearly holds the
General Counsel's position to be error As noted by Re-
spondent in its supplemental brief, the pertinent facts of
Indiana Desk and the instant case are substantially the
same Both cases involved the reinstatement of economic
strikers and their employer's bargaining obligation with
respect to the utilization of the reinstatement procedure
In both cases, the applicable collective-bargaining agree-
ments had expired and the unions went on strike At the
time the unions made their unconditional offer to return
to work, neither employer was able to immediately rein-
state all of the strikers who had offered to return to
work Both unions urged that the employers were legally
obligated to utilize the recall provisions contained in the
expired collective-bargaining agreements to determine
which strikers should be offered reinstatement
In the instant case, use of the reinstatement procedure
would have meant reinstating the strikers on the basis of
their plantwide seniority, while in Indiana Desk, the
strikers would be reinstated based on their departmental
seniority In both cases, the employers urged they were
under no legal obligation to reinstate the strikers in ac-
cordance with the expired provisions of the agreement
Rather, the employer in Indiana Desk, chose to fill avail-
able vacancies with those strikers who had held the posi-
2 Affirming, without modification, the decision of Administrative Law
Judge James Youngblood
lions in question immediately prior to the strike When
this person declined the reinstatement offer, Indiana
Desk, then offered the position to the striking employee
having the greatest experience in that particular Job In
the instant case, Respondent filled vacancies based on se-
niority within each Job classification The effective result
of this system was to fill the positions with those em-
ployees who had held the position immediately prior to
the strike In neither case did the employers hire replace-
ments off the street ahead of striking employees
In neither case did the Respondent seek to initiate bar-
gaining with their respective unions over the reinstate-
ment procedure to be utilized prior to the actual com-
mencement of the reinstatement process It also appears
the Union in each case never requested bargaining over
the reinstatement process until sometime after the rein-
statement process had already begun
As noted above, I have found the Union did not re-
quest bargaining over the reinstatement issue other than
a request that supersenionty treatment be given to stew-
ards, at the 22 March meeting between the Union and
Respondent I further find no formal request was made
by the Union for bargaining over this particular issue
until it responded to the 25 August letter from MacKay
to Wheeler, after which bargaining sessions commenced
on the issue I do not view the filing of the 3 May
charge in Case 39-CA-1642 to constitute a request for
bargaining over the reinstatement issue The charge itself
was too vague, in my opinion, to constitute such a re-
quest It is my finding the first indication the Union de-
sired to bargain over the reinstatement procedure was
transmitted by the Subregional Office in early August to
Respondent in a conversation indicating the Subregional
Office intended to issue a complaint Shortly thereafter,
MacKay wrote to Wheeler indicating the Company was
willing to bargain over the reinstatement issue if the
Union desired The Union's response to this letter was, I
find, the first request made for bargaining over the pro-
cedure to be utilized to reinstate employees other than
stewards
In Indiana Desk, supra, Judge Youngblood determined
the Company had not violated Section 8(a)(1), (3), and
(5) of the Act by reinstating the striking employees
After discussing in detail the reinstatement procedure uti-
lized by Respondent in Indiana Desk, Judge Youngblood
found the procedure was not inherently destructive of
Section 7 rights nor discriminatory Then, and important-
ly, Judge Youngblood found, and the Board affirmed,
"The fact that Desk did not bargain with the Union over
the manner in which it would recall the striking employ-
ees is not a violation of Section 8(a)(5) " Judge Young-
blood then recommended the allegation and complaint
relating to the reinstatement process and the requirement
to bargain be dismissed
Although the case appears to be almost identical with
respect to the reinstatement issue, the General Counsel
and the Charging Party urge that Indiana Desk is not ap-
plicable to this proceeding because the General Counsel
in Indiana Desk chose to present the case primarily on
the theory that the procedure devised to reinstate strikers
was in itself the primary violation of the Act Had the
EMHART INDUSTRIES 223
issue of failure to bargain with the Union over the rein-
statement procedure not been presented to Judge Young-
blood and the Board in Indiana Desk, I would be in-
clined to agree with the position taken by the General
Counsel and the Union in this case However, the refusal
to bargain over the reinstatement procedure was part of
the complaint which was presented on brief by the par-
ties to Judge Youngblood, and forms a part of his deci-
sion Therefore, though it is not fully discussed in the de-
cision, it was clearly presented and decided and I find
that it governs the disposition of the similar issue in this
proceeding
Insofar as the instant complaint in this proceeding al-
leges that the recall procedure utilized by Emhart fol-
lowing the unconditional offer to return to work in
March and the Company's failure or refusal to initiate
bargaining with the Union over this procedure constitute
violations of the Act, I find that they do not and would
recommend those portions of the complaint relating to
these matters be dismissed
3 Conclusions relating to the February change in
reinstatement procedures
Respondent, in early February 1984, informed Shop
Chairman Belliveau that plantwide seniority conforming
generally to paragraphs 1 and 2 of the "Special Rein-
statement Procedure" would be used for future recalls
The General Counsel contends this is a separate violation
of the Act in that Respondent unilaterally changed the
recall procedure and refused to bargain to agreement on
the matter or, in the alternative, if bargaining had
reached an impasse, for the failure of Respondent to im-
plement the full recall procedure contained in its last bar-
gaining offer to the Union Respondent contends that its
unilateral change was lawful under either the Board's ra-
tionale and Indiana Desk, or under the Board's guidelines
in Rio-Science Laboratories, 209 NLRB 796 (1974) Under
the holding of Indiana Desk, supra, discussed above, it
would appear Respondent could implement a change in
its recall procedure which is not discriminatory or de-
structive of employees' Section 7 rights and for which it
has a business reason, without bargaining over the proce-
dure Under the law of Indiana Desk, therefore, Re-
spondent has not violated the Act and the allegations in
the complaint in this regard should be dismissed
However, even if the instant proceeding in this regard
is not governed by the holding in Indiana Desk, I find
Respondent's February unilateral change of mterrecall
procedure was lawful in any event I further find Re-
spondent had reached an impasse in its negotiations over
the reinstatement procedure As can be seen from the
foregoing factual discussion, both parties had bargained
in good faith during the negotiations over the reinstate-
ment issue for a number of bargaining sessions The pri-
mary point for which no agreement could be made was
the issue of the recall of stewards and related procedures
which could require bumping of employees previously
reinstated Neither side had moved from their positions
on these issues since the initiation of negotiations over
the reinstatement matter In February there had been no
resumed negotiations for approximately 2 months and
from what I can find from the record, no more were
scheduled
The Company's implementation of change in the rein-
statement procedure in February, while not identical
with its last offer, adopted substantially the procedure
that had been urged by the Union since the ending of the
strike, that is, Respondent went to a plantwide seniority
basis for filling future vacancies I find the factual cir-
cumstances surrounding the implementation in February
of the new reinstatement plan meets the requirements set
out by the Board in Bio-Science, supra Although the
Company did not implement all of the proposals that it
had made to the Union, including (1) an employee's
right to bid on a higher grade job once recalled, (2) cri-
teria for determining an employees' eligibility for jobs
other than his original job, (3) a notification procedure
for employees prior to an employment recall, and (4) the
rights of unremstated strikers who had bid on openings
in the plant, I believe the plan implemented was certain-
ly within the spirit of the negotiations as it met the basic
request of the Union for a plantwide seniority basis for
reinstatement I further believe the General Counsel's as-
sertion that Respondent would have to follow its last
proposal to the Union, to the letter, goes beyond the re-
quirements of the Board in both Rio-Science, and Indiana
Desk Accordingly, for the reasons set forth above, I find
the Respondent has not violated the Act by implement-
ing its plantwide seniority procedure in February 1984
and would recommend the complaint, insofar as it al-
leges a violation of the Act by this action, be dismissed
B Allegations Relating to Violations of the Act by
Respondent's Meeting with Employees
With respect to this issue, the parties agreed, between
April and August 1984, employee productivity was a sig-
nificant issue and was discussed by the parties during ne-
gotiations On 4 April 1984, the Union proposed a two-
tier committee system to act as a study committee to
evaluate jobs in the plant and recommend changes to im-
prove productivity Subsequently, the Union and the
Company exchanged a series of letters between May and
June 1984 on the subject of productivity
On 28, 29, and 30 August 1984 Robert Thibodeau, the
Hartford Division vice president of manufacturing, con-
ducted several mandatory employee meetings These
meetings were attended by salaried and hourly employ-
ees for the purpose of attempting to establish procedures
for improving productivity and quality control
Each meeting was conducted essentially in the same
manner Employees were called to the cafeteria and
given the opportunity to have coffee and doughnuts and
to mingle among themselves for 10 to 15 minutes Thibo-
deau then called the meeting to order and spoke for
about 20 to 30 minutes after which employees were
given the opportunity to ask questions Each meeting
lasted approximately 50 minutes
George Johnson, an Emhart employee attending one
of the meetings, described the meeting as follows He
testified after the refreshments Thibodeau stated he was
not going to speak to employees as vice president but
was going to speak as one employee to another Accord-
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mg to Johnson, Thibodeau said he wanted management
and employees to become more competitive because jobs
were at stake Thibodeau stated he wanted to have a
committee down the line that would insure management
and input into different jobs as far as quality and quantity
is concerned With respect to the Union, Thibodeau
stated this would have to be done without a union con-
tract for the simple reason the union contract was going
to be a lengthy situation which was out of his hands, it
was in the courts' hands Johnson testified he addressed
Thibodeau at the meeting telling him he was not too en-
thusiastic about attending the meeting for the reason that
two similar jobs he had done on his machines have been
subcontracted out Johnson said Thibodeau told him he
would look into it and get back to him which he did that
afternoon At that meeting, unattended by any other em-
ployees, Thibodeau stated to Johnson he had looked into
the matter and, as far as the particular jobs were con-
cerned, it was out of his hands, but he intended to "plug
the hole"
Employee Phil Parenteau testified at a similar meeting,
"Thibodeau made opening remarks to the effect that it
was an open meeting and that anyone could talk about
anything they wanted to talk about, that they [the em-
ployees] did not need a union and they didn't need a
contract but, we just have to work together and shake
hands together" He said Thibodeau stated all jobs were
on the line and jobs could be saved by improving pro-
ductivity Thibodeau suggested having group meetings
on a regular basis Parenteau also testified that another
employee named Stanley Moores tried to ask Thibodeau
about improving the inspection department and was told
by Thibodeau if he did not like his working conditions in
the inspection department, "Don't let the door hit you in
the ass on the way out" Stanley Moores is a member of
both union negotiating committee and the grievance
committee The meeting he described was the same
meeting described by Johnson above
Anthony Denezzo testified that at a meeting he had at-
tended Thibodeau stated the Company preferred the
Missouri plant (another Emhart facility) over plant 4
(Emhart's Bloomfield plant) because it is more economi-
cal to run He stated, "Thibodeau said the employees
were in danger of losing their jobs if we didn't turn
things around at the plant and that a contract wouldn't
help solve our problems" Thibodeau also stated he
wanted to set up quality circles throughout the shop
wherein a group from each department would meet
every week for an hour or so in the department and talk
over ways to improve quality and production
Thomas Davenport testified at one of the meetings he
had attended Thibodeau indicated that plant 4 was possi-
bly going to close and he did not want to see plant 2
(Windsor Locks) go the same route He stated, "Thibo-
deau indicated we didn't need a union nor a contract to
get our jobs done We have our jobs at stake, we have
our pensions and benefits at stake" He said Thibodeau
also indicated there would be future weekly meetings
and those meetings would be conducted to find ways to
cut cost He also indicated there was going to be super-
visory changes and that they would need volunteers to
conduct these meetings
Davenport said Thibodeau then opened the meeting
for suggestions and Stanley Moores, whose testimony is
noted above, asked him why suggestions were not being
used and Thibodeau indicated, "Moving lights around,
wouldn't be solving the problems of the company" Dav-
enport said Moores then asked why the meetings were
not held on a voluntary basis and Thibodeau indicated
they would be mandatory, that if Moores did not like the
way the Company was doing things, "there's the door
Do not let it hit you in the backside on the way out"
Employee Edmond Patterson testified he had attended
a similar meeting and as the meeting started Thibodeau
stated he did not want what was apparently happening
to plant 4 (its imminent closing) to happen to plant 2 and
wanted the employees to cooperate to make plant 2 a
more productive shop Patterson stated Thibodeau went
on to say, "there is no point in us waiting—the employ-
ees—waiting on a contract to start working together be-
cause the union (he was a member of the negotiat-
ing committee) and as he sees it the Union and the com-
pany, at that point, is hopelessly deadlocked and it will
be a long time before we get a contract signed" He
said Thibodeau went on to say the meeting was being
called to set up a quality circle between employees and
the Company and if production and quality picks up at
the shop he will be able to go back to his boss and say,
"The guys are doing a good job, let's give them a con-
tract" Patterson testified he asked Thibodeau what he
was trying to propose as a quality circle and why was it
any different from what the negotiating committee of the
Union, which Patterson was a member, was proposing
Thibodeau stated he did not want to talk about anything
that had to do with negotiations
Thibodeau testified about the meetings and his state-
ments In giving the reasons for the meetings, Thibodeau
noted that in late August morale was pretty low in the
shop The employees had heard about a letter the Com-
pany had sent to the Union stating the Company was
looking to the possibility of consolidating its factory op-
erations There were rumors in the shop that the Hart-
ford facilities were going to be next and Thibodeau de-
cided to hold a meeting and talk about the subject Thi-
bodeau stated at the meetings he started by talking about
what "we" have to do to obtain job security in the Hart-
ford Division He stated that many employees were con-
cerned about the letter that was sent to the employees, in
the Bloomfield operation (plant 4) The Company was
looking at the consolidation of the activities and his com-
ment was, "We, alone in the manufacturing operation,
could prevent such a thing from happening" He stated,
"We have it within our power the ability to give our-
selves job security by working together The customers
are demanding a better quality product at reduced
prices" He stated to the employees that the plant's pro-
ductivity in that timeframe had been slipping and it had
to be turned around He noted that some customers had
been complaining about products that were leaving the
plant and that the Company had to improve quality and
do a better job in order to survive in the economy He
told employees they could produce a better product and
had to in order to be able to compete with other compa-
EMHART INDUSTRIES 225
mes and with some of Emhart's intercompany affiliates
He noted the plant could buy parts from other affiliates
at less than it cost to make them in-house The employ-
ees had an opportunity of working together to bring jobs
back from Sweden and from Singapore, affiliates which
were also making parts similar to those made in Hart-
ford
He also noted the parent company was not going to
show Hartford the way and the plant had within its own
means the talent and the room to build a better product
at less cost He stated, "We didn't need—we didn't need
the Union also, to come in to tell us what to do
Alnght9 To reduce cost, to make a better quality prod-
uct"
He then said the employees could do it by working to-
gether and he was setting up individual group meetings
with each department where the employees would be sit-
ting down to discuss their particular areas and what has
to be done to be more competitive The meetings were
established and are going on to this date
Thibodeau promised if productivity and quality were
improved it would give the employees and himself a re-
tirement at Emhart He noted to the employees that he
was a new employee with Emhart and was concerned
about his job
With respect to negotiations, Thibodeau stated the sub-
ject came up a couple of times and that he repeated sev-
eral times he was not there to negotiate a contract and
would not discuss anything that was at the bargaining
table
Robert McMillan, an assembly manager for Respond-
ent, testified he attended the meeting at which employee
Patterson was present At the meeting he testified Thibo-
deau stated
There were going to be meetings held in the em-
ployees department offering the opportunity to
make suggestions to the company for improvements
in almost everything relative to their job tool-
ing, travelers instructions and material Any-
thing they felt might help the Company be more
productive and be a better place to work and for
their willingness to offer suggestions and the Com-
pany's willingness to evaluate and adopt them, they
would be better for being a more productive facili-
ty
He testified Thibodeau made no promises to employees
for benefits if productivity improved With respect to
labor negotiations, Thibodeau answered questions from
employees about negotiations saying he could not discuss
matters because the negotiations were in progress and it
was not appropriate He did not recall Thibodeau
making any comments about the Union and linked job
security and productivity to the improvement in the
quality of work and reductions in cost
Frank Plewa, plant engineer with Respondent, also
testified and confirmed Thibodeau's description of the
meetings With respect to comments regarding labor ne-
gotiations he said Thibodeau set the tone, he was not
there to negotiate a contract "and that we were here to
try and do our part as far as improving efficiency and
productivity"
The complaint alleges the actions of Respondent, in
holding the meetings, violates the Act in a number of
ways It alleges the Union has been bypassed and em-
ployees negotiated with directly over terms and condi-
tions of employment, the employer has unlawfully solic-
ited grievances and complaints and promised employees
benefits, and has attempted to undermine the status of
the Union with the employees Respondent did exclude
the Union's representatives, other than employee mem-
bers, from the meetings and it did specifically discuss im-
proving productivity and quality which topics were at
least part of the ongoing negotiations between the Com-
pany and the Union at the time of the meetings
I do not find the meetings violated the Act as alleged
The situation at the Windsor Locks plant was obviously
not good at the time of the meetings As noted above,
there were rumors, which ultimately proved true, that
the nearby Bloomfield facility of Emhart would close
and its operation shifted elsewhere The Windsor Locks
plant was receiving complaints about the quality of its
work and its production level was being questioned as
well The situation at the facility was one of uncertainty
over the facility's future and the outcome of protracted
negotiations between the Company and the Union
It is clear from the testimony that the talks given by
Thibodeau had a clear purpose, the improvement of pro-
duction and quality at the Windsor Locks facility It was
made clear by Thibodeau to the employees at each of
the meetings their purpose was to discuss ways to im-
prove production, quality, and help insure job security
for everyone at the facility, including Thibodeau himself
It was likewise made clear the meetings would address
nothing currently being discussed in the negotiations
The meetings, in my opinion, were not wide-ranging but
did specifically focus on the issues of production and
quality I do not find Thibodeau, at the meetings, solicit-
ed complaints or grievances from the employees, rather,
he only requested the employees cooperation and sugges-
tions on improving production and quality I also do not
find he promised any benefits except for the obvious ben-
efit that job security would be enhanced if production
and quality improved at the facility I do not credit the
testimony of witness Patterson that at one of the meet-
ings Thibodeau promised a quick contract if production
improved The comment is completely out of line with
the testimony of all the other witnesses describing the
meetings
The statements made by Thibodeau about the contract
and the Union, except for the statement attributed to him
by Patterson which I have discredited, do not, in my
opinion, undermine the Union's position nor seek to
erode the support for the Union by the employees The
meetings as described by the testimony almost assume
the fact of the Union's continued presence, the fact a
contract would ultimately be reached and the Union
would continue to be the representative of the employ-
ees The meetings, in my opinion, spoke more to the per-
sonal involvement of the individual employee in his or
her job and sought suggestions from the individual em-
226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
\
ployee on how to improve productivity and quality in
each job As noted above, the only benefit offered was
general job security for all The meetings in question
were mandatory for the employees but employee partici-
pation in followup meetings was strictly voluntary
Given the overall context of the meetings under the cir-
cumstances facing the Windsor Locks plant, I do not
find them to be unlawful
C Issue of the Company's Refusal to
Arbitrate Grievances
By letter dated 16 November Local President Wheeler
indicated to Donald MacKay the Union's desire to pro-
ceed to arbitration over certain grievances Several of
these grievances arose from events which occurred after
the parties collective-bargaining agreement had expired
on 12 September 1982 The Company did proceed to ar-
bitration on those grievances which involved events oc-
curring before the expiration of the contract However,
the Company, by letter dated 18 November informed the
Union that it would not arbitrate grievances concerning
events which occurred after the agreements' expiration
The parties stipulated at the hearing the Company had
maintained its position it was not required to arbitrate
grievances pertaining to matters which arose after the
expiration of the agreement
The issue for decision is whether the Company is obli-
gated to arbitrate postcontract grievances pursuant to the
terms of the expired collective-bargaining agreement
Prior to 1977, the Board's position on this matter was, as
stated in, Hilton Davis Chemical Go, 185 NLRB 241
(1970), an employer's refusal to arbitrate a grievance
which onginated after the expiration of a collective-bar-
gaining agreement does not violate Section 8(a)(5) of the
Act The Board's position was modified by the Supreme
Court's 1977 decision in Nolde Bros v Bakery Workers
Local 358, 430 U S 243, in which the Court held an em-
ployer's obligation under an arbitration clause may sur-
vive the contract's expiration when the dispute, even
though arising after the contract's expiration, is over an
obligation arguably created by the expired contract In
Nolde, supra, the Supreme Court was faced with a griev-
ance over severance pay and ultimately held the employ-
er must proceed to arbitration over that question The
Court pointed out severance pay was a right which had
"vested or accrued" during the term of the expired con-
tract The Court also stated the parties in Nolde, supra,
had not indicated an intention to terminate the use of the
contract arbitration procedure once the collective-bar-
gaining agreement had expired On this point, the Court
stated, "In short, when the dispute is over a provision re-
vision of the expired contract, the presumption favoring
arbitrability must be negated expressly or by a clear im-
plication" See also American Sink Top & Cabinet Go,
242 NLRB 408 (1979)
Noting by way of comparison, the Board's decisions in
S & W Motor Lines, 236 NLRB 938 (1978), and Cardinal
Operating Go, 246 NLRB 279 (1979), the General Coun-
sel contends the parties did not intend for the arbitration
feature of the grievance procedure to expire with the
contract as there was no language indicating the clause
could be extended only by written agreement as was the
situation in the above-cited cases
On the other hand, relying to a great extent on S & W,
supra, and Cardinal, supra, Respondent urges the parties'
actions show they did not intend for the arbitration fea-
ture to continue First, Respondent noticed in the negoti-
ations held immediately prior to the expiration of the last
contract, both the Union and the Company proposed
changes in the clause, which would have called for arbi-
tration procedures different from that in the existing con-
tract Respondent goes on to note if it is found as a result
of this complaint the arbitration feature survived the ex-
pired contract, utilization of the arbitration clause in the
expired agreement would push the parties to use a proc-
ess neither party found completely desirable nor could
they agree upon during negotiations Secondly, the Com-
pany notes during negotiations the Union also submitted
a proposal for the right to either strike or arbitrate over
grievances The arbitration clause in the existing agree-
ment contained a no-stnke provision and Respondent
urges that attainment of an arbitration clause is a conces-
sion by the Employer which the Union generally agrees
to a no-strike clause See Teamsters Local 174 v Lucas
Flour, 369 U S 95 (1962) Both an arbitration and a no-
strike clause were present under the expired agreement
Respondent argues by going on strike after the expiration
of the agreement the Union indicated its intention that
the provisions of the expired agreement were no longer
in effect
Respondent urges that forcing the Company to arbi-
trate grievances which originated after commencement
of the strike would significantly upset the quid pro quo
relationship between arbitration clauses and no-strike
clauses and the Union would be allowed to have the ben-
efit of both options, ignoring the no-strike provision and
requiring the Company to arbitrate
I find with the Respondent that the existence of the
strike, as well as the parties' negotiations over changes in
the arbitration procedure, reflects their intent that the ar-
bitration procedure, as contained in the last contract, did
not survive the contract I believe the instant case is gov-
erned by the Board's holding in Cardinal, supra, and S &
W, supra The situation in the instant proceeding is simi-
lar to that both of the above-mentioned cases except for
the existence of a clause requiring a written agreement to
extend portions of the contract I do not find this feature
in those cases as significant as I do the Union's consider-
ing itself not bound by the expired contracts' no-strike
clause and by the fact that the parties were negotiating
for substantial changes in the procedure itself Accord-
ingly, for the reasons set forth above, I find the arbitra-
tion clause did not survive the contract and Respondent
was not obligated to arbitrate grievances arising after the
expiration of the contract which did not arise from the
expired contract I will, therefore, recommend the por-
tion of the complaint alleging a violation of the Act by
Respondent's refusal to arbitrate such grievances be dis-
missed
Inasfar as the consolidated complaints allege no other
violations of the Act by Respondent, my Order will pro-
vide for the dismissal of the complaints
' EMHART INDUSTRIES 227
CONCLUSIONS OF LAW
1 Emhart Industries, Hartford Division, is an employ-
er engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act
2 International Union, United Automobile Aerospace
and Agricultural Implement Workers of America, Local
376, is a labor organization within the meaning of Sec-
tion 2(5) of the Act
3 The Respondent did not engage in unfair labor prac-
tices within the meaning of the Act as alleged in the con-
solidated complaints
[Recommended Order for dismissal omitted from pub-
lication]