Federal Mogul Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1974

212 N.L.R.B. 950 (N.L.R.B. 1974)

950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Federal Mogul Corporation and Office and Profession-
al Employees International Union , Local 42, AFL-
CIO. Case 7-CA-10404
August 21, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On February 21, 1974, Administrative Law Judge
Herzel H. E. Plame issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the'Administrative Law Judge and to
adopt his recommended Order.
We agree with the Administrative Law Judge's
finding that Respondent's "refusal to submit or dis-
cuss, or to permit any discussion of, economic propos-
als in the contract negotiations, and [Respondent's
requirement] as a condition for any such discussion
that the Union agree to accept Respondent's terms on
certain noneconomic matters, was a refusal to bargain
in good faith in violation of Section 8(a)(5) and (1) of
the Act," and that the Union's strike which com-
menced on May 30, 1973, was in protest of
Respondent's unlawful conduct and was, therefore,
an unfair labor practice strike.
On the basis of credibility resolutions, which are
amply supported by the record, the Administrative
Law Judge found that at the first negotiating meeting
in August 1972 the Union submitted its entire con-
tract proposal, except for its wage proposal, which
was to be submitted after Respondent complied with
the Union's request for certain data respecting job
descriptions and rates of pay for unit employees.
At the second meeting on September 30, 1972, Re-
spondent "firmly established" 2 ground rules for ne-
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544
(1950), enfd 188 F.2d 362 (C.A 3, 1951). We have carefully examined the
record and find no basis for reversing his findings.
2
Our dissenting colleague states that Respondent only "suggested" these
ground rules . We regard the Administrative Law Judge 's characterization as
gotiations, namely: (1)- that all noneconomic issues
would be discussed and negotiated first and economic
issues would be held until the end of the negotiations;
and (2) that items agreed to and initialed by the par-
ties would not be discussed further. Furthermore, Re-
spondent was not concerned with whether the Union
negotiators consented to, and it did not know if they
agreed with, the ground rules, but this was the way
Respondent normally proceeded in contract negotia-
tions and it insisted on holding all economic matters
until the end of the negotiations. Indeed,
Respondent's personnel manager and its principal
negotiator, Michael Willard, credibly testified that the
union negotiators "were unhappy whenever [he] stat-
ed what [Respondent's] position was with regard to
rejection of the economic demand" before the end of
negotiations.'
As negotiations progressed, agreement was reached
only on a few noneconomic items of substance. There
was sharp disagreement on four items: management
rights, union security, grievance procedure, and the
number of hours in the regular workweek. (The Union
finally abandoned its proposal to reduce the number
of hours in the workweek on May 29, 1973, and
agreed to Respondent's position on that point.) Al-
though the Union's entire proposal had been on the
table since August 1972, including vacations, insur-
ance, profit sharing, sick leave, longevity, shift pay,
and cost-of-living increases, Respondent refused to
discuss these items until the end of negotiations, and
Respondent did not submit any counterproposals
concerning these items.
Nevertheless, in early April 1973, the Union sub-
mitted its wage proposal, which was reviewed by Re-
spondent but later taken back by the Union to make
some corrections. The wage proposal was resubmitted
on May 10, 1973. At another meeting on May 24,
1973, Respondent rejected the proposal on wages
without giving any reason, and again did not offer any
counterproposal. At this point, the Union advised Re-
spondent of the strike vote and that employees would
go on strike on May 30, 1973, in order to get a coun-
terproposal from Respondent. The parties met again
on May 29, 1973, in the presence of a state mediator,
at which time the Union asked for Respondent's eco-
nomic proposal. Each time the Union made this re-
quest Respondent insisted that negotiations continue
on the remaining noneconomic issues. The employees
did strike on May 30, 1973, in protest against
Respondent's refusal to make any proposal on eco-
nomic issues.
At a subsequent meeting in June 1973, called by the
fully supported by the record.
s Again, contrary to our dissenting colleague, we can hardly agree, on the
basis of the Administrative Law Judge's credibility findings , that the ground
rules were a "mutually accepted procedure."
212 NLRB No. 141
FEDERAL MOGUL CORPORATION 951
state mediator, the Union's offer: (1) to recede from
a partial union shop to a full agency shop was rejected
by the Respondent on the ground that requiring the
payment of dues was a compulsion; (2) to separate
out areas for strike in its proposal for grievance proce-
dure was rejected because Respondent was unwilling
to use an arbitrator; and (3) to make further conces-
sion on management rights was not accepted because
Respondent wanted flexibility in dealing with office
workers as they are a support group. On July 11, 1973,
the parties met again and went over their respective
positions on the "big three" without "noticeable"
movement on either side, and the meeting recessed.
After resuming, Respondent tendered its contract
proposal, including a wage offer of 3 percent annually
for 3 years, which would automatically terminate if
not accepted by the Union by 12 noon on Monday,
July 16, 1973.
The parties discussed the scheduling of another
meeting, which became a problem because of the au-
tomatic deadline and the fact that negotiators from
both sides had prior commitments-the Union's neg-
otiators on days prior to July 16 and the Respondent's
negotiators on days following July 16. Because of
these business commitments, including July 16, which
were communicated to Respondent on July 11, the
union negotiator asked Respondent to extend the
deadline in view of its short time, but the request was
refused .4 The union negotiators agreed to meet on
July 16, 1973, provided they could cancel other com-
mitments between then and July 16 which would give
them needed time to get together to review the eco-
nomic proposal. Since the negotiators were unable to
cancel their commitments they were unable to review
the proposal, and so informed the state mediator, who
in turn advised Respondent that the meeting was can-
celed, and the offer lapsed.'
On August 28, 1973, the parties met for the last time
and the Union tried to negotiate a return to work of
the striking employees and the terms of a contract. As
Respondent had hired replacements during the strike,
it would not agree to the return-to-work offer, but did
offer preferential hiring as jobs opened to those strik-
ers who signed unconditional requests to return. The
Union agreed and the strike was terminated. Eleven
A This is the answer to our dissenting colleague's not knowing why appar-
ently no union inquiry was made to extend the deadline Also, with respect
to the statement in the dissent that Respondent "had clearly flown a signal
on the 11th that the deadline was open to later discussion," the record shows
that Respondent would consider extending the deadline if it appeared that
there was ment or value in extending it at the July 16 meeting, but Respon-
dent would "not give [the Union] an open and blanket commitment"
5 Contrary, to our dissenting colleague, we believe that the Administrative
Law Judge adequately reviewed and properly resolved, on the basis of cred-
ited evidence which has record support, the fact that the July 16 meeting was
firm provided the Union's negotiators could cancel their prior business com-
mitments, and that Respondent certainly knew of these prior commitments.
of the strikers sought to return.
The Administrative Law Judge found that Respon-
dent not only refused to make any economic offer but
also blocked any discussion of economic proposals
until the Union agreed to Respondent's "big four"
proposals, and this conduct was antithetical to good-
faith bargaining and exhibited a cast of mind against
reaching agreement. Further evidence of this attitude
is the fact that before discussing economic matters the
Union had to concede exclusive control to' Respon-
dent over matters that parties are obligated by law to
bargain about and which are commonly contained in
bargaining agreements.
We also agree with the Administrative Law Judge's
rejection of Respondent's argument that its submis-
sion of a contract proposal, including an economic
offer, on July 11, 1973, cured or halted its unfair labor
practices. As the Administrative Law Judge noted,
this offer automatically lapsed at noon of the one day
that Respondent was available to negotiate with the
Union over the 20 subjects listed in the offer, subjects
which the Union had not seen and was not familiar
with because Respondent refused to make a proposal
until July 11, 1973. As a practical matter, Respondent
was making a take-it-or-leave-it offer during a period
when the union negotiators did not have the time nor
the opportunity to meet for a needed review and anal-
ysis of the proposal so that they could bargain intelli-
gently about its contents. This sort of practice at a
crucial stage of negotiations denied the Union an op-
portunity to bargain collectively and is further evi-
dence of the Respondent's attempt to block
meaningful discussion of the terms of the sought-after
collective-bargaining agreement.
As noted, supra, we agree with the Administrative
Law Judge's credibility resolutions, findings of fact,
and conclusions of law. Accordingly, we shall adopt
his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, Federal Mogul Corporation,
Greenville, Michigan, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
CHAIRMAN MILLER, dissenting:
The facts here present a picture of a troubled nego-
tiation which failed to produce agreement between
the parties and resulted in what has obviously been an
unsuccessful strike. The failure of the parties to have
952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a successful negotiation was caused by a number of
factors, some of which are not, as I shall later point
out, fully explicated on this record. But none of the
factors which are explained by the evidence, in my
view, constitute bad-faith bargaining on the part of
either the Employer or the Union.
Negotiations between Respondent and the Union
began in August 1972, some weeks after the Union
had been certified in late June 1972. Eight meetings
were held in 1972 and 16 more in the first 5 months
of 1973. A number of negotiating meetings were can-
celed and a substantial number of others were started
tardily or suddenly postponed because of difficulties
encountered by the International Union in servicing
this Local. Although the Company had suggested that
the Union's problems in this regard evidenced bad
faith, the facts do not bear out this charge. Instead it
seems reasonably clear from the evidence that the
Union's difficulties were administrative in nature. Be-
cause of internal difficulties, budgetary and other-
wise, it was not able to provide the kind of continuity
in negotiators and the kind of regular, reliable meet-
ing dates which might have made the negotiations
more productive.
Despite these problems negotiators progressed, al-
beit perhaps more slowly than would be deemed real-
ly desirable by those practiced in the art of collective
bargaining. There is no serious claim here, however,
nor could one be sustained, on the record before us,
that during these early stages of the negotiations there
was only "surface bargaining" or any other indicia of
bad faith.
Near the outset of the -negotiating meetings Re-
spondent Personnnel Manager Willard suggested
ground rules for negotiations which included the cus-
tomary ground rule that noneconomic issues would
come first and be disposed of before the parties tack-
led the economic items. This ground rule was adhered
to without objection from the Union until the meet-
ings late in May. The decision of the Administrative
Law Judge seems to suggest that this rule was forced
on the Union by the Respondent, and the Administra-
tive Law Judge also seems somehow shocked by this
procedure. Neither his suggestion nor his seeming
shock can be justified by the record or by customary
standards of negotiating practice.
As to the record-and also as to customary practic-
es-the testimony of the Union's vice president is
enlightening. He testified:
I was informed at the beginning of the meeting
by Mr. Willard that he was accustomed to negoti-
ating language first which is certainly a common
enough custom and that was fine with the Union.
Similarly, Union Bargaining Committeeman Bur-
gess, both in direct testimony and in an affidavit given
to the Board in the course of the investigation of this
case, verified that the Union did not object, until
sometime in May 1973, to the practice of confining
the discussion to noneconomic issues and not pro-
ceeding with economic items until the noneconomic
ones had been resolved.
Respondent Personnel Manager Willard testified,
without contradiction, that each of the different union
representatives, who were sent in as spokesmen over
the course of the bargaining, agreed that this was the
"normal bargaining procedure that they were used to
following."
Such a procedure is in accord with bargaining prac-
tices generally, a fact which the Administrative Law
Judge seems not to have recognized or understood.
Volume I of Law and Practice of the Labor Con-
tract, a treatise authored by Benjamin Werne, has this
to say on this subject at page 223:
Management is best advised not to talk wages or
money benefits until desired changes have been
worked out on other aspects of the agreement
. ... The agreement should be combed from
top to bottom before there is a concession on
money matters. Company negotiators must keep
the cost of inefficient operation in mind as clearly
as the dollar-and-cents value of an added holiday
or extra week's vacation allowance. A seniority
provision which compels the layoff of the only
men who can handle a certain kind of assignment
can be as damaging to the future of the business
as the cash paid out to employees on sick leave.
Concentration on economic issues to the exclu-
sion of all other factors is a common pitfall of the
inexperienced negotiator.
In the instant case, in conformity with this custom-
ary and, here, mutually accepted procedure, the par-
ties did deal first solely with the noneconomic issues
and reached agreement on a substantial number-
some 25 or 26 items. The Administrative Law Judge,
without justification in my view, characterized these
as "peripheral noneconomic subjects." But when ex-
amined, it appears to me that they represented, in toto,
a very considerable area of agreement on considera-
bly more important than "peripheral" issues. They
included such subjects as seniority, layoff and recall
procedures, the manner of representation of employ-
ees by union stewards and other representatives, and
other items important to any collective agreement
which I doubt that anyone truly experienced in collec-
tive negotiations would regard as "peripheral."
FEDERAL MOGUL CORPORATION 953
There remained, however, difficulty with certain
items. Eventually both parties agreed that the key to
the success or failure of the attempt to resolve noneco-
nomic matters lay in four principal areas in which the
negotiators had failed to come to an agreement, but
on which an agreement would have to be reached if
the contract were to be acceptable to both parties: (1)
management rights, (2) union security, (3) grievance
procedure, and (4) hours of work. On these clauses, by
May 10, there had been virtually no movement by
either party. Respondent had proposed a broad man-
agement rights clause whereas the Union had not
agreed to include any kind of management rights
clause whatever.
The Union had proposed the maximum union se-
curity permitted under law, and the Respondent had
insisted on a complete open shop. As to grievance
procedure, the parties had reached substantial agree-
ments about most of the procedure, but had parted
company with respect to pay for grievance time and
as to what disputes under the agreement should be
arbitrable-the Union insisting that all disputes
should be arbitrable and up to this point the Compa-
ny insisting that none should be. Finally, there were
substantial differences with respect to the hours of
work clause, where, again, it would appear that each
party had refused to budge from its initial proposal.
On May 10 the Union for the first time submitted
a complete economic package which contained the
Union's initial proposal on the obviously crucial item
of wages. The proposal was quickly rejected by Re-
spondent and no counterproposal was made. Rather,
Respondent's representatives urged that the parties
return to the process of attempting to reach agreement
on the noneconomic items. Neither party engaged in
any extensive discussion of the merits or demerits of
the particulars of the union economical proposal. The
Union protested that it now wanted to talk economics
even without settling the noneconomic items, but the
Company insisted that the parties should follow the
procedures which they had been following for the
many months of negotiations and attempt to resolve
the noneconomic items before proceeding to econom-
ics.
In the last days of negotiation before the beginning
of the strike which commenced May 30, 1973, some
little progress was made with respect to the noneco-
nomic items in dispute, but not enough to enable the
parties to reach agreement. Respondent modified its
position with respect to arbitration by agreeing that
disciplinary cases would be arbitrable and that certain
other cases could be sent to arbitration on a case-by-
case basis' The Union continued to insist on arbitra-
tion of all disputes and indicated that if the manage-
ment would agree to this it would agree to a firm
no-strike clause.
On union security Respondent had offered a check-
off clause but would not agree to a union shop. The
Union, on its part, made no concessions from its full
union-shop demands until May 29, when it proposed
a union shop for new employees combined with an
agency shop for present employees who had not yet
joined the Union. This proved unacceptable to Re-
spondent.
On the remaining item-hours of work-the Union
dropped its demands and agreed to the company pro-
posal of a 40-hour week, which was a continuation of
the hours under which the office unit had historically
been operated.
As to management rights, the Union indicated its
first willingness to consider such a clause on May 24 6
Respondent then made some modifications in its pro-
posed management rights clause, but the differences
between the clause proposed by Respondent and the
clause proposed by the Union were not resolved.
Something should perhaps be said about the
Respondent's management rights proposal, which the
Administrative Law Judge appears to have viewed as
unduly and perhaps unlawfully broad. The original
management proposal in this regard reads as follows:
Unless expressly and specifically provided to
the contrary in this Agreement, the management
of the Company's business at Greenville, Michi-
gan, and the direction of the working forces in-
cluding the planning, direction, and control of
operations, the scheduling of work and the as-
signment of employees to such work, the crea-
tion, change, or abolition of jobs or job
classifications, the retirement of employees, the
control and regulation of all equipment and
other property of the Company, the determina-
tion of work standards and of the quality and
quantity of work to be produced, the determina-
tion of the source of materials and supplies, the
selection of customers, the transfer or cessation
of operations in whole or in part, the work to be
contracted out, the transfer of work out of the
plant, the methods, processes and means of per-
forming the work, the determination and estab-
lishment of any new or emproved work methods
or facilities, the establishment and enforcement
of reasonable rules of conduct, are all vested sole-
ly and exclusively in the Company. It is further
6 Such was the testimony of Union Bargaining Committeeman Burgess.
Union witness Solenberger testified that the Union had submitted a draft
management rights clause earlier The Administrative Law Judge does not
appear to have resolved the question of which witness' recollection was most
nearly accurate.
954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed that the Company retains the right to ex-
ercise any other right, function, or prerogative of
management which is not abridged by an express
and specific provision of this Agreement.
date jobs and operations (subject to giving the
union notice of such change); and the right to
enact company policies, plant rules, and regula-
tions which are not in conflict with this agree-
ment, are vested exclusively in the employer.
The Company retains the right to hire, sus-
pend, discipline, and discharge for proper cause,
to transfer and to relieve employees from duty
because of lack of work or other legitimate rea-
sons, except as expressly and specifically provid-
ed to the contrary on the Agreement.
The Company's not exercising any right here-
by reserved to it, or its exercising any right in a
particular way, shall not be deemed a waiver of
any such right or preclude the Company from
exercising the same in some other way not in
conflict with the express terms of this Agreement.
There is no substantial difference between this
clause and others which have been incorporated in
many collective agreements. Bulletin No. 1245-5, is-
sued by the Bureau of Labor Statistics of the Depart-
ment of Labor, is a study of management rights
clauses in collective agreements. The study points out
(p. 7) that some contracts contain short and simple
statements of management rights, while others are
"lengthy, with particular rights illustrated in detail."
Typical clauses of the latter variety are then set forth
in the study. Note the following clause therein set
forth (p. 7) which differs only in minor detail from the
one proposed in the instant case:
The management of each employer and its oper-
ations, the direction of the work force, including
the right to hire, retire, assign, suspend, transfer,
promote, discharge, or discipline for just cause,
and to maintain discipline and efficiency of its
employees and the right to relieve employees
from duty because of lack of work or for other
legitimate reasons; the right to determine the ex-
tent to which the plant shall be operated; the
right to introduce new or improved production
methods, processes or equipment; the right to
decide the number and location of plants, the
nature of equipment or machinery, the products
to be manufactured, the methods and processes
of manufacturing, the scheduling of production,
the method of training employees, the designing
and engineering of products, and the control of
raw materials; the right to assign work to outside
contractors and to eliminate, change or consoli-
To the extent, therefore, that the Administrative
Law Judge relies on the language of Respondent's
proposed management clause as establishing an
8(a)(5) violation, I believe he has erred. In this area,
as in some other portions of his rationale, he seems to
have been less than fully familiar with the practical
realities of collective negotiations.
Returning now to the chronology of the negotia-
tions-immediately preceding the strike the Union
once again demanded that the Respondent make an
economic offer. Respondent continued to insist the
parties should follow their original ground rules and
resolve noneconomic items before reaching the eco-
nomic issues. Although General Counsel sought to
show that Respondent issued an ultimatum that the
Union had to surrender and actually sign
Respondent's proposals on these items before pro-
ceeding to the economic discussions, the record does
not bear out this contention, and the Administrative
Law Judge properly made no such finding. Thus,
Union Representative Solenberger testified with re-
spect to such an alleged ultimatum:
A. There was nothing like-well that was 'not
said on either occasion. The closest thing that I
can remember to it was something Mr. Eastman
said on the 13th which was not said on the 29th,
that it would be pointless to-to make an eco-
nomic offer with the other things unresolved.
JUDGE PLAINS Unresolved?
THE WITNESS Yes.
Solenberger also testified, when asked whether the
failure to reach agreement on May 29 was as much the
result of the Company's refusal to accept the Union's
point of view on the items remaining in dispute as it
was the Union's refusal to accept the Company's
point of view, by saying "I think that would be a
matter of opinion."
Thus on May 29 both parties had moved somewhat
from their initial positions with respect to manage-
ment rights and grievance procedures, but that move-
ment was too little, on both sides, to bring about
agreement on either of these two issues. On union
security the Company had moved a little by granting
checkoff and the Union had moved somewhat from
its demand for the maximum union security permitted
FEDERAL MOGUL CORPORATION 955
by law but no agreement was reached on this issue.
On hours of work, the Union's recession from its ini-
tial demand had brought agreement. There thus re-
mained three key noneconomic items on which many
months of serious negotiations had failed to produce
agreement and the Company was unwilling to pro-
ceed to serious economic discussions until, in accor-
dance with initially agreed-upon procedures, these
key noneconomic issues were settled. The resulting
impasse produced a strike.
It is apparent from the testimony that in the union
meetings preceding the strike it was the hope and
desire and plan of the Union that by striking it would
be able to put sufficient pressure on the Company to
force it to make an economical proposal. The Union,
however, at no time indicated to the Company that if
it made an economic proposal the Union would be
willing to move further than it had on the crucial
noneconomic items. The Company's strategy in refus-
ing to make an economic offer until these basic non-
economic items were settled was consitent with the
practice of the parties throughout most of the negotia-
tions. Furthermore, contrary to the seeming assump-
tion by the Administrative Law Judge, Respondent
was following the conventional wisdom in so doing.
As Werne says in the opus previously cited, (p. 223):
If the Union has won economic gains, it is not
likely to be much interested in management's
suggestions for revising such items as the trans-
fer, layoff, grievance or leave procedure.
And the reader will recall Werne's warning elsewhere,
quoted supra, that
Concentration on economic issues to the exclu-
sion of all of all other factors is a common pitfall
of the inexperienced negotiator.
Respondent's experienced negotiators were plainly
trying valiantly to avoid that pitfall.
The facts show that Respondent's negotiators here
were, indeed, experienced. Respondent has agrre-
ments with unions elsewhere in the country and is a
party to two collective-bargaining agreements cover-
ing other units at this location. There is no suggestion
in the record anywhere of union animus on the part
of the Company or of any motivation for its actions
other than an earnest desire to follow those bargain-
ing stratagems most likely to secure provisions in the
agreement it deemed favorable to the management.
That, of course, is not violative of any provision of the
Act.
On the other hand, the Union's strategy of engaging
in strike at this juncture-i.e., May 30-was, from its
point of view, equally well advised. It had been unable
to persuade Respondent to agree to its proposals on
noneconomic issues and Respndent was standing firm
and refusing to proceed with economic matters until
the noneconomic issues could be resolved. Quite un-
derstandably, the Union's negotiators deemed their
best move to be one of bringing economic pressure to
bear on the Employer in an attempt to get the negotia-
tions off dead center and to pressure the Employer
into a more flexible position on the noneconomic is-
sues as well as "smoking out" a definitive employer
offer on economic items. It had, on May 11, foreseen
the probable need to employ that stratagem and had
carefully secured advance strike authorization from
the membership, even before knowing definitely what
the Employer might offer at the latter May meetings.
Picket signs had been prepared during the last week
in May. The Union's negotiators were, obviously, also
well seasoned and knowledgeable about bargaining
tactics. So it was that on May 30 the already prepared
picket signs were put to use and the strike began.
It is interesting to note that although the Union
regarded the Respondent's position in the bargaining
as requiring a resort to economic pressure, its experi-
enced negotiators quite obviously did not, at the time,
regard Respondent's attitude as evidencing any bad
faith in negotiations. For the Union, again demons-
trating its expertise, immediately attempted'to secure
the benefit of having this Board declare the strike to
be an "unfair labor practice strike" by filing an unfair
labor practice charge almost simultaneously with its
strike call. It charged only, however, that certain
claimed unilateral action not relevant to any of the
issues discussed was unlawful. That charge was found
by the General Counsel to be without merit, and only
later was any charge, filed with respect to
Respondent's bargaining conduct here in issue.
The objectives of the strike pressure were, in part at
least, fulfilled. At the first meeting following the
strike, although neither party made any significant
movement with respect to the noneconomic items,
Respondent, under pressure of the strike, was "per-
suaded" to abandon its insistence that discussions
continue to be confined to noneconomic items. In-
stead, it was "persuaded" to submit a complete "pack-
age" on all economic items, including wages.
In an effort to stimulate prompt and serious negoti-
ations Respondent put a time limit on its offer-a not
uncommon practice at crucial stages of collective bar-
gaining. Although the Administrative Law Judge re-
garded this time limit as having "ultimatum"
characteristics, the evidence on the record suggests
instead that it was essentially a typical negotiating
gambit. Thus, according to Personnel Manager Wil
lard, industrial Relations Manager Eastman, in re-
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sponse to a union inquiry as to whether the time limit
be extended, made clear both that the time limit was
not an irrevocable ultimatum and also that the terms
offered did not constitute a "take-it-or-leave-it" offer.
Instead he stated in answer to Union Representative
Spotwood's inquiry about an extension on the time
limit in the offer "that it would depend on the tone of
the negotiations:... If we are making progress I am
sure we can discuss it and we can . . . things are going
along well at that time we will talk about extending
the offer."
After the Union reviewed the Respondent's eco-
nomic offer for clarity, the parties agreed to meet on
the morning of July 16 for further negotiations. There
is some difference in the testimony about the firmness
of the parties' agreement to this schedule, which, in
my view, was not adequately reviewed or properly
resolved by the Administrative Law Judge. While
General Counsel's witnesses indicated that Union
Negotiator Spotwood was less than certain about her
ability to agree firmly to that schedule, Respondent's
witnesses testified that the agreement to that date was
firm, and that they were not made aware of any prob-
lems which the union negotiator might have in meet-
ing what they regarded as a firm commitment to meet
on July 16. In reviewing the record, the evidence
seems to me to compel a finding that Union Negotia-
tor Spotwood may have subjectively anticipated some
difficulties about the July 16 date, but that she did not
communicate them to the management representa-
tives on July 11. Only after the management represen-
tative had left the July I1 meeting did Spotwood make
certain telephone calls, which appear not to have re-
solved her difficulties, but she did not, even then, tell
any of Respondent's representatives that there would
be a problem about the feasibility of this agreed-upon
date.
Spotwood or some union official, at a later date,
advised the mediator that the meeting for the 16th
could not take place because of Spotwood's unavaila-
bility. And on July 13 the mediator so advised
Respondent's representatives. Employee Negotiator
Dickenson also testified that he did not learn of the
cancellation until the weekend preceding July 16.
Subsequently, a further meeting was scheduled for
July 25. Respondent's industrial relations manager
traveled a considerable distance by automobile in or-
der to attend this meeting, only to find when he ar-
rived that once again the Union had inexplicably
canceled it on that very morning. There is no evidence
that the Union ever inquired of either the mediator or
the Company as to whether, in view of the union
inspired cancellations of the July 16 and 25 meetings,
Respondent would consider its economic offer still
available for discussion or whether it had any new or
different economic offer to make. So far as the record
shows, there was no further union request for a meet-
ing until sometime in August, when a meeting for
August 28 was arranged by the mediator. Although
the Union initially indicated that it wished to contin-
ue negotiating the terms of a contract at that time, it
made no serious attempt to do so at this meeting.
Instead, after a brief exchange of comments, the
Union advised Respondent that the strike was over
and discussions then focused solely on the issue of the
reinstatement or rehiring arrangements for striking
employees, most of whom by the time had been re-
placed. That issue went unresolved. The Union asked
for a reinstatement of all the strikers, whereas Re-
spondent took the position that most strikers had
been replaced and that therefore all it could offer,
essentially, was preferential hiring as jobs opened up,
with the promise that any reinstated striker retain his
full seniority, but without credit for the time involved
in the strike.
The Union then volunteered that if the Company
would agree to take back all the striking employees,
the Union would not only drop its unfair labor prac-
tice charge but would also relieve Respondent of all
obligation to bargain further. It is of particular inter-
est, in assessing Respondent's bonafides here, to note
that it chose not to take advantage of this offer to rid
itself of the Union and to relieve itself of all bargain-
ing obligations by accepting this rather remarkable
union proposal.'
It is upon this evidence that the Administrative Law
Judge and my colleagues would find that "the evi-
dence demonstrates that Respondent was not bar-
gaining with any sincere intentions of reaching an
agreement with the Union." I do not see how that
conclusion can possibly withstand judicious scrutiny
of this record.
As I view the facts, they establish only that both
parties had firm positions on certain key noneconom-
ic issues which, because of their importance to both
sides, were characterized by the parties as "the big
four." On these issues-union security, arbitration,
management rights, and hours of work-neither par-
ty, throughout several months of negotiations, retreat-
ed in any substantial degree from its respective
original ground. The Union insisted upon the maxi-
mum union security permissible under law, and the
Respondent resisted firmly. The Respondent insisted
on a relatively strong management rights clause, and
7 Also of interest in assessing Respondent's motivations throughout this
series of events is the fact that Respondent, in hiring permanent replacements
for the stokers , advised the replacements that they were being hired as
"permanent replacements" but frankly volunteered also to advise each such
new hire that because of a pending unfair labor practice charge there was a
chance of a future legal determination that the strikers might later be in a
position to reclaim their jobs
FEDERAL MOGUL CORPORATION 957
the Union resisted firmly. The Union insisted upon
arbitration of all disputes, while the Respondent
wished arbitration on none. The Union wished to re-
duce the workweek; the Employer insisted on main-
taining it at its 40-hour level. Only as a self-imposed
deadline of the end of May approached did either
party make any moves whatever in these areas. As the
facts developed, when they did move, they moved too
little to accomplish anything more than a narrowing
of the "big four" issues to a "big three." On the big
three, both parties moved a little. Respondent made
some modifications of its management rights clause.
The Union offered some modification of its full
union-security demand. Both parties abandoned their
extreme positions on arbitration and there began to be
some exploration, although ultimately an unfruitful
one, of whether there could be an agreement to arbi-
trate some, but not all, issues.
Dissatisfied with the amount of company move-
ment on these issues and eager to talk money, the
Union brought pressure on the Company by calling a
strike.
The events following the strike, particularly the
Union's conduct with respect thereto, are difficult to
understand or assess , although , admittedly, a review
tribunal such as this Board-is not in the best position
to understand the subtleties and nuances of a situa-
tion from which it is distant in both fact and time,
upon a cold and never truly complete record.
We do not know, for example, why, when the
Union had finally successfully pressured the Compa-
ny into making an economic offer, it seems to have
been so unconcerned about canceling the crucial July
16 meeting. Almost any experienced negotiator, view-
ing, this record, would view that meeting as having
been the optimum time for the achieving of a settle-
ment . Nor do we know why apparently no union in-
quiries were made as to whether the Respondent's
assertion of a July 16 deadline for its economic offer
could be extended in view of the necessity of cancel-
ing or postponing the July 16 meeting , even though
Respondent's negotiator had clearly flown a signal on
the 11th that the "deadline" was open to later discus-
sion. Had the Union already determined that its strike
could no longer be supported? Had the employees
already shown a willingness to accept something very
close to the Company's last offer? Was a settlement
on those terms too embarrassingly low to conform to
what the Union may have determined to be satisfacto-
ry wage and fringe benefit standards? Had the main-
tenance of this "strike at a location which had
apparently proved very difficult for the Union ade-
quately to service become too burdensome for it? One
cannot help but be curious about these questions, but
we have answers to none of them.
All we know is that the record facts appear, inexpli-
cably, to show a remarkable lack of concern by the
Union's International representative about a rapidly
deteriorating situation from the Union's point of
view. Even the next scheduled meeting, some 9 days
later, was abruptly, and without notice or explanation
either to Respondent or to the employee -negotiators,
cancelled, apparently without any request for an early
rescheduling.
The Union's position at the August 28 meeting
strongly suggests that at some point the International
representatives of the Union became convinced that
they could not obtain what they regarded as a satis-,
factory agreement. For at that meeting, the Union
abandoned not only the strike, but also freely offered
to abandon its representative status. Thus the Union
never again, so far as we know, even requested anoth-
er meeting or attempted to engage in any further ef-
forts on behalf of the employees in this unit, other
than to seek to have General Counsel of this Agency
pursue the unfair labor practice route. And it will be
remembered that it had voluntarily offered to forego
even that at the August 28 meeting.
Whatever the explanation for these events, there is
not a shred of evidence anywhere to suggest that Re-
spondent was doing anything, in this entire sequence
of events, other than to obtain contract terms which
it deemed satisfactory to it. There is not only a com-
plete lack of evidence to suggest that Respondent was
attempting to undermine the bargaining or to seek to
rid itself of the Union, but indeed all of the evidence
suggests quite the contrary. At the plant in question,
Respondent has agreements with two other unions
and there is nothing in this record to suggest that its
relationships with those unions is other than satisfac-
tory. Indeed, the fact that the toolroom unit acted
responsibly in honoring the no-strike clause' in its
agreement with Respondent during 'the strike of the
office personnel suggests that Respondent and that
union-the UAW-have a mature relationship.
When Respondent was offered an opportunity to buy
its way out of the bargaining relationship by reinstat-
ing all strikers and accepting a voluntary, waiver of
bargaining rights by the Union, it rejected it. When
Respondent hired permanent replacements, it demon-
strated its respect for the law which this Agency ad-
ministers by fairly putting all such replacements' on
notice that a proceeding, was pending before this
Board which might have an adverse effect on the per-
manence of the replacements' employment.
If, upon this kind of record, I were to sign my name
to a decision and opinion concluding that "Respon-
dent was not bargaining with any sincere intention of
reaching an agreement with the Union" it would seem
to me that I would be speculating in unsupported
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assumptions in a most injudicious way. Equally sig-
nificant, it is my view that by signing such an opinion
I would be demonstrating a complete lack of expertise
about this practicalities of collective bargaining.
For to hold that Respondent was guilty of anything
by proposing a management clause which so closely
parallels clauses repeatedly included in collective
agreements would evidence a total lack of under-
standing of what goes on in bargaining rooms around
this country. To suggest that an employer who insists
upon noneconomic issues being resolved before the
bargaining proceeds to a full consideration of eco-
nomic issues would show an equally embarassing na-
ivete about the practical aspects of labor-management
negotiations. To find that the frequently used bar-
gaining ploy, of putting a time limit on an economic
offer at the time of the "crunch" in collective bargain-
ing demonstrates anything other than a serious at-
tempt to force prompt and serious negotiations and
thus to end a strike would be a similar admission of
an unrealistic, ivory-tower approach to the facts
about the conduct of labor negotiations.
In sum, it is my view that the finding of a violation
of Section 8(a)(5) upon this record is both contrary to
law and unsupported by the evidence. And it belies
the expertise in the art and practice of collective bar-
gaining which I would like to think resides in this
Board. For these reasons, I respectfully dissent, and
would dismiss the complaint in its entirety.
DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: The
issue in this case is whether Respondent refused to bargain
in good faith with the Charging Party (Union), the certified
representative of the unit of Respondent's office employees
at the Greenville, Michigan, plant, in the negotiations for an
initial collective-bargaining contract that took place over
the span of a year from August 1972 to August 1973 without
agreement reached. The claim is that Respondent prevented
meaningful collective bargaining from taking place by re-
fusing to discuss, or itself submit, economic proposals in-
cluding wage proposals, unless and until the Union would
agree to three noneconomic proposals relating to (1) man-
agement rights, (2) an open shop, and (3) a grievance proce-
dure that, except in employee dismissal cases, excluded
binding arbitration as the ultimate step and, where the
Union would not accept the employer's decision, could be
settled only by strike that would terminate the contract if
the strike endured longer than 5 days.
The Union, viewing the alleged conduct and bargaining
posture of Respondent as a violation of Section 8(a)(5) and
(1) of the National Labor Relations Act (the Act), called a
strike of the unit employees on May 30, 1973, and filed an
unfair labor practice charge with the Board.' The strike
i The original charge was filed May 30, 1973 A first amended charge was
filed June 4, 1973, and a second amended charge was filed August 27, 1973.
ended on August 28, 1973, without a collective-bargaining
agreement being reached.
The complaint,2 in addition to alleging the 8(a)(5) and (1)
failure to bargain in good faith, alleged- derivative 8(a)(3)
violations by Respondent, in failing to accord the rights due
unfair labor practice strikers to the striking employees who
sought to return to work and were denied reinstatement in
some cases or tardily reinstated in other cases.
Respondent's answer and position at the trial was that it
engaged in lawful hard bargaining prior to the strike, that
during the strike it made a complete economic and contract
offer which the Union ignored, that the strike was an eco-
nomic strike and not an unfair labor practice strike, and that
the returning strikers were entitled only to the reinstatement
rights of economic strikers.
The case was tried in Greenville, Michigan, on November
7-8, 1973. The Union and Respondent have filed briefs.
Upon the entire record in the case, including my observa-
tion of the witnesses and consideration of the briefs, I make
the following: 3
FINDINGS OF FACT
I JURISDICTION
Respondent is a Michigan corporation operating several
plants in the State of Michigan. The plant at Greenville,
Michigan, the only facility involved in this case, is engaged
in the manufacture, sale, and distribution of precision bear-
ings for automotive, farm implement, and highway equip-
ment.
In calendar 1972, a representative year of its operations,
Respondent manufactured at, and sold And distributed
from, the Greenville plant products valued in excess of
$500,000, of which products valued in excess of $50,000
were shipped directly to points outside Michigan.
Respondent is, as the parties admit, an employer engaged
in commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
The Union is, as the parties also admit, a labor organiza-
tion within the meaning of Section 2(5) of the Act.
11 THE UNFAIR LABOR PRACTICES
A. Union Representation at the Plant
At Respondent's Greenville plant which produces preci-
sion bearings for automotive and other equipment, the bulk
of the workers, some 400-500, comprise a production and
maintenance unit, represented by the Federal Mogul Work-
ers Association (Workers Association), an independent
2 Original complaint filed July 16, 1973, amended complaint filed Septem-
ber 28, 1973.
3 The transcript of the record requires correction in two places in order
to avoid misunderstanding. The transcript as a whole is replete with garbled
words and sentences, largely reflecting poor reporting and transcription.
Fortunately, the meanings at these places come through notwithstanding the
garbles. Since none of the three parties has requested correction of the record,
I have refrained from attempting any larger task of correction than the two
changes set out herein. Accordingly, it is ordered, that the transcript of the
proceedings is corrected in certain particulars
FEDERAL MOGUL CORPORATION 959
union unaffiliated with an international union.
Respondent's toolroom employees at the plant, between
25-50 persons, is a separate unit, represented by the Auto
Workers Union (UAW).
The office workers unit, the third unit at the plant, com-
prising about 30 office clerical employees and laboratory
technicians, is represented by a third union, Local 42
OPEIU, the Union directly involved in this case.
Workers Association and UAW each have collective-bar-
gaining contracts with Respondent for their respective
units.
The Union, Local 42, achieved the status of representa-
tive of the office clerical workers unit by election June 16
and Board certification June 26, 1972, but neither the ensu-
ing negotiations for an initial contract nor the strike that
commenced on May 30, 1973, has produced an agreement.
B. The Negotiations for a Contract
The negotiations between Respondent and the Union
began in a first meeting, August 23, 1972. All told, eight
meetings were held in 1972. Sixteen further meetings were
held in the first 5 months of 1973, through May 29, and the
Union called a strike of the unit employees commencing
May 30, 1973. There were two additional negotiating meet-
ings while the strike was in progress, held in June and July
1973, arranged by State Mediator Mason, who became in-
volved starting with the May 10, meeting, and a final
meeting (the 27th) held August 28, 1973, for the purpose of
the Union terminating the strike and attempting to arrange
for the return to work of the strikers.
Respondent's principal. negotiator in the first 24 meetings
August 1972-May 1973, until the strike of May 30, 1973,
was its Greenville plant personnel manager, Michael Wil-
lard. In the three final meetings during the strike, James
Eastman, the company industrial relations manager for its
component parts group (covering five of Respondent's
plants including Greenville) to whom Willard was responsi-
ble, took charge of the negotiations, with Willard continu-
ing to participate as part of the employer's committee.
The Union had an employee bargaining committee, of
which employee Edwin Dickenson, chairman of the em-
ployee unit and bargaining committee, and employee Rob-
ert Burgess, were the principal members. However, the
Union's professional employees from Detroit (and one from
Kalamazoo) were the spokesmen and chief, negotiators for
the Union. In the first meeting August 23, 1972, where the
Union brought m its contract proposals, and in the last
meeting, August 28, 1973, where the Union sought to nego-
tiate return of the strikers to work, the union spokesman was
its president and business representative, Mabel Holleran,
of Detroit. Starting with the second meeting, September 30,
1972, because Personnel Manager Willard apparently want-
ed weekend meetings to avoid pulling both employees Dick-
enson and Burgess off jobs, the Union sent as spokesman
its business representative, Norma Tackett, from Kalama-
zoo (which was closer, than Detroit). Then came a shift in
preference for night meetings, and still later afternoon meet-
ings, during the week. Tackett couldn't handle night meet-
ings, according, to Union President Holleran, and Union
Business Agent Ruth Spotwood of Detroit was assigned to
be union spokesman. Before she was free to step in, Union
Vice President Peter Solenberger of Detroit acted as spokes-
man at the sixth and seventh meetings, November 28 and
December 2, 1972, and thereafter Union Agent Spotwood
took over as union spokesman and handled most of the
negotiating meetings for the Union. Because of concern for
Spotwood's failing health in mid-1973 Union Vice President
Solenberger came with her and acted as cospokesman at the
24th and 25th meetings, May 29 and June 13, 1973, but not
the 26th meeting, July 11, 1973, when she was again sole
chief spokesman for the Union. This was Spotwood's last
meeting, she took medical leave at the end of July, was
hospitalized sometime thereafter, and remained so at the
time of the trial. Union Vice President Solenberger testified
that he was chairman of the Union's board of review, which
kept track of what the business representatives were doing,
so that Union Agent Spotwood was reporting to him
through the whole period of her participation in the negotia-
tions, he said.4
C. The Impediment
At the first negotiating meeting between Respondent and
the Union, August 23, 1972, the Union submitted its pro-
posal for a contract (G.C. Exh. 2), complete except for a
wage proposal. The Union indicated that its wage proposal
would come later after Respondent had supplied the current
job descriptions and rates of pay, which the Union request-
ed and later received.
Beginning with the second meeting, September 30, 1972,
Personnel Manager Willard set the ground rules for the
negotiations, namely, (1) that all noneconomic issues would
be discussed and negotiated first and economic issues would
be held until the end, and (2) that items agreed to and
initialled by the parties would not be discussed further.
Willard testified that he firmly established these ground
rules successively with Union Negotiators Tackett, Solen-
berger, and Spotwood. He was not concerned with whether
they consented; indeed, he said, he didn't know if they
agreed, but this was the way he normally proceeded in
contract negotiations and this was the way the negotiations
were held.
Union Vice President Solenberger conceded that in his
first negotiating meeting as union spokesman, November
28, 1972, he went along with Personnel Manager Willard's
ground rule of putting noneconomic matters ahead of eco-
nomic matters, sometimes described by the parties as nego-
tiating language first or negotiating the words first.
Employee Burgess testified that at the January 17, 1973,
meeting, with Spotwood then the new union spokesman,
Willard insisted on holding all economic matters till the end
of the negotiations "to get the words out of the way," as he
put it, and Spotwood did not question this.
However, as Personnel Manager Willard testifed, the
union negotiators were always unhappy with his repeated
statements rejecting economic demands until noneconomic
were accepted, and in the last three or four negotiating
Except for Union Agents Spotwood and Tackett, all of the persons
named and described above testified and supplied the pertinent information
concerning the negotiations
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meetings before the strike of May 30, 1973, said Willard, the
Union started to talk about getting economic proposals
from Respondent.
Going back to the beginning and over a period of time as
the negotiations proceeded, the parties were able to dispose
of and agree upon the language of a group of clauses on
peripheral noneconomic subjects, such as union recogni-
tion, military leave, nondiscrimination, use of bulletin
boards, union representation by stewards, leaves of ab-
sence, personal leave, layoff and recall procedure, and some
few others. It became clear however, that there was a sharp
cleavage and inability to reach agreement on a number of
noneconomic items. Most prominent were four issues, la-
beled by the parties "the big four" (later "the big three"
when the Union accepted the Respondent's position on one
of the items). These were, (1) a management rights clause
(G.C. Exh. 3), which Respondent proposed early in the
negotiations; (2) union security; (3) the grievance proce-
dure; and (4) number of hours of the regular workweek.5
On item (1), management rights, Respondent claimed en-
tire control of all operations, including creation and change
of jobs and job classifications, without negotiation with the
Union. The Union's position, according to Union Vice Pres-
ident Solenberger, who provided counterproposals, was a
willingness to concede the employer's sole control and dis-
cretion over planning, operations, equipment, and material,
but that creation and change of jobs and job classifications
should be matters of negotiation with the Union. At the
time of the commencement of the strike, the most that Re-
spondent would move in this direction was a willingness to
drop sole control over retirement of employees. Respondent
rejected the union suggestion to use the management rights
clause that was in Respondent's contract with the UAW
governing the employees of the toolroom.
On item (2), union security, the Union wanted compulso-
ry union membership as a condition of employment of all
employees. Respondent would agree only to voluntary
union membership, for those current and new employees
who wanted it. As negotiations progressed, the Union of-
fered to drop the requirement of union membership for
current nonunion employees and limit the requirement to
incoming employees. This was not acceptable to Respon-
dent, but it did offer to provide a checkoff of union dues
from voluntary union member employees. After the strike
began May 30, 1973, in the first meeting thereafter, June 13,
1973 (called by State Mediator Mason), the Union offered
a further modification of its position to a "full agency
shop," which under Michigan law gave both incoming and
current employees a right to choose not to join the Union
but required each nonjoiner to pay to the Union, as bargain-
ing representative, a service fee equivalent to union dues for
members.6 This was not acceptable to Respondent.
On item (3), the grievance procedure, Respondent's initial
position was that the final step of the procedure should be
management's determination, coupled with a no-strike
5 It was evident at trial , as at the negotiations , that there was an overlap
of economic effect in many of the so-called noneconomic matters, neverthe-
less item (4) above was treated as a noneconomic item in the negotiations.
6 See Warczak v. Board of Education, School District of City of Detroit, 84
LRRM 3008, 61 LC § 52, 225 (Mich. Cir. Ct., 1973)
pledge by the Union. This was not acceptable to the Union,
said Union Vice President Solenberger, because it gave Re-
spondent the complete right to interpret the contract. The
Union wanted arbitration as the final step of the procedure
and was ready to concede a no-strike pledge under that
condition. The Union also wanted the stewards' investigat-
ing time to be paid time.
By the time of the strike, May 30, 1973, Respondent had
moved to a willingness to agree to arbitration as the final
step in dismissal of employee cases only; as a'final step for
all other grievances, where the Union would not accept
management's determination, the Union would have to
strike, and if the strike endured more than 5 days the con-
tract between the parties would terminate. This proposal
was not acceptable to the Union (The Union cut down its
demands regarding stewards, and Respondent appeared
willing to pay for steward's investigating time in one step of
the grievance procedure.)
At the meeting May 29, 1973, on the eve of the strike,
Personnel Manager Willard suggested a willingness by Re-
spondent to agree to arbitration on a case by case agreement
to arbitrate, but conceded that this meant no arbitration
unless agreed to each time a dispute arose. The union felt
this still left the Respondent in control of interpreting the
contract. On the Union's part, Union Vice President Solen-
berger offered at the June 13, 1973, meeting (after the strike
began) to separate out areas or subjects of disputes that
would be arbitrated and areas of disputes that would be
settled by strike, but Respondent declined to explore this.
On item (4), hours of workweek, the Union wanted a
35-hour week, 7-hour day, Respondent wanted a 40-hour
week, 8-hour day. On the eve of the strike, at the meeting
of May 29, 1973, Respondent rejected a union compromise
offer of a 37 1/2-hour week, and the Union gave in and
agreed to the 40-hour week.
At this point the "big four" became the "big three" non-
economic items that were stalled in the postures of dis-
agreement described above.
As the parties went through the various articles of a pro-
posed contract from meeting to meeting, evolving agree-
ment on some items and disagreement on others,
Respondent adamantly held to its refusal to discuss eco-
nomics until the rest of the contract was agreed upon. The
Union's entire proposal, including all of its economic pro-
posals (other than wages) such as vacations, insurance, prof-
it sharing, sick days, longevity pay, shift pay, and cost of
living increases had been before Respondent since the early
meetings of 1972 (a few had come in as amendments to the
original proposal, G.C. Exh. 2, submitted at the first meet-
ing). Respondent submitted no counterproposal in the pres-
trike meetings of 1972 and 1973 other than occasional drafts
of articles, such as its management rights article (G.C. Exh.
3).
According to employee committee members Dickenson
and Burgess (Personnel Manager Willard corroborated
this), in several of the early 1973 meetings, Union Negotia-
tor Spotwood sought to have Respondent "lay the words
aside," get to the economic issues, and come back to the
words; but each time Willard refused and insisted they
would deal with the words first and then the economic part.
Thus, said Dickenson, each time the negotiating parties
FEDERAL MOGUL CORPORATION 961
reached an economic matter in the union proposal, they
wrote an E (for economic) on it and put it in the back of
their folders.
At the meeting of either April 10 or April 11, 1973, said
Personnel Manager Willard , Union Negotiator Spotwood
submitted the union wage proposal related to job descrip-
tions and classifications , but then took the proposal back
temporarily to make some corrections and resubmitted it in
final form at the meeting of May 10, 1973 . Willard took the
proposal saying, according to employee Burgess, that he
needed time to study it.
At the next meeting, May 24, 1973, when asked about the
Union's economic proposal Personnel Manager Willard
said, according to his own testimony as well as the testimo-
ny of the employee witnesses , that the proposal was reject-
ed, gave no reasons for rejecting it, refused to discuss it, and
offered no counterproposals . Furthermore , as employees
Burgess and Dickenson testified , Willard said the Respon-
dent would not give the Union an economic proposal until
it signed Respondent's four clauses ("the big four") on man-
agement rights , union security , grievance procedure, and
hours of work.
At about this point, following a caucus of employees
Dickenson and Burgess and Union Negotiator Spotwood,
Spotwood advised Willard of a prior strike vote taken by
the employees and set a strike deadline of May 30. Accord-
mg to Burgess and Dickenson about 25 employees had met
on the previous May 11 in the local bank building to receive
a report on the progress of negotiations and to consider
strike action. Dickenson chaired the meeting. He explained
the course of the negotiations and Respondent 's insistence
on getting agreement on the "big four" items before it would
talk about economics . He asked for a strike vote in order to
get a counterproposal from Respondent . Burgess told his
fellow employees the strike vote was needed to get their
power behind the union negotiators to obtain an economic
proposal, but that a strike vote didn 't mean that they would
necessarily have to strike . Burgess said the vote was 21-4 for
a strike.
Personnel Manger Willard testified that he was aware of
the strike vote taken , before the May 24 meeting. At the
conclusion of the May 24 meeting the parties set the next
meeting for May 29 , with everyone involved fully aware that
a strike had been set for May 30 if there was no negotiating
movement toward agreement.
The May 29 meeting was a long one , from 5 p.m. till after
midnight. The state mediator participated, as he had in the
earlier May meetings , and noted his understanding that
unless an agreement was reached there would be a strike the
next day. Union Vice President Solenberger described the
meeting in some detail and Personnel Manager Willard
agreed that Solenberger's description was essentially accu-
rate. In summary , the parties went through three successive
rounds of considering the unresolved noneconomic items,
in particular the "big four," with some suggested modifica-
tions by each side not acceptable to the other. On each
round -either Union Negotiator Spotwood or Solenberger or
both would ask Respondent for its economic proposals and
each time, said Solenberger , Willard made the same replies,
namely, the Union's economic proposals were rejected, Re-
spondent was willing to negotiate a complete contract that
night , but would not be making economic counterproposals
until the Union agreed to Respondent 's terms on the big
four noneconomic issues. (Willard indicated , in his testimo-
ny that he didn't lump these issues as a group in his replies;
rather, when asked for Respondent 's economic offer, he
would reply to the Union , we reject your economic propos-
als, but are you ready to sign our management rights clause?
repeating this formula with the various big four clauses.) On
one of these rounds, the Union gave up on one of the big
four items, namely, its contention for a 35-hour week and
accepted Respondent's 40-hour week , reducing the big four
noneconomic issues to the big three . Nevertheless there was
no change in Respondent's refusal to make any offers or
negotiate regarding the Union 's economic proposals.
D. The Strike and Subsequent Negotiations
As a result, the unit employees went on strike May 30,
1973. Their picket signs stated that the Company refused to
bargain fairly and was engaging in an unfair labor practice;
and their advance and contemporaneous advice to the lead-
ership and members of the other unions in the plant was
that the office employees were not going on, or on, an
economic strike but had to strike in order to get an econom-
ic proposal from Respondent because Respondent would
not give any such proposal unless the Union signed up on
Respondent 's four major noneconomic demands (testimony
of Vice President Peterson of Federal Mogul Workers Asso-
ciation , the shop employees' union; and union circulars,
G.C. Exhs. 4 and 5).
With the strike in progress , the negotiating committees
met next on June 13, 1973, at the call of the state mediator.
Respondent's Industrial Relations Manager Eastman took
over as spokesman for Respondent. (In his testimony East-
man agreed that Union Vice President Solenberger's de-
scription of the meeting was accurate .) According to
Solenberger, Union Negotiator Spotwood noted at the start
that the Union having conceded at the May 29 meeting on
the hours of work issue, the three other major noneconomic
issues remained as the stumbling block under Respondent's
ultimatum that the Union would get no economic proposal
until it agreed to Respondent's positions on the three issues.
The parties then moved through a discussion of these items.
On the union shop issue, Solenberger offered to recede
from a partial union shop to a full agency shop, which
would give every employee, newcomers as well as existing
employees, the choice of joining the Union but nonjoiners
would pay agency fees equivalent to union dues (see text at
fn. 6, supra). Eastman said that requiring new employees to
join the Union or even pay agency "dues " was a compulsion
that would not attract the kind of employees Respondent
wanted.
On the grievance procedure, and the Union 's contention
for arbitration as the final step in settling grievances rather
than strike, Solenberger offered on the part of the Union to
separate out areas for arbitration and areas for strike. East-
man replied that Respondent was unwilling to turn manage-
ment over to a third person, named an arbitrator;
Respondent wanted grievances settled between the parties.
On the management rights article , Solenberger suggested
that the Union was willing to make further concessions if
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent would show some willingness to compromise
its position of total control. Eastman answered that because
the office workers of the Greenville plant were a support
group for the rest of the plant, Respondent wanted flexibili-
ty in dealing with them and hence wanted a very complete
management rights clause.
As a result of this discussion, said Solenberger, the parties
had come the circle of noneconomics to economics. Union
Negotiator Spotwood asked if the Respondent would give
an economic counterproposal.
With elaboration, said Solenberger, Industrial Relations
Manager Eastman refused. Eastman explained that making
a contract was like building a building-one had to have a
sound foundation and these noneconomics were the sound
foundation, until completed there would be no building.
Eastman said it would be pointless for Respondent to make
an economic offer with those matter unresolved.
The union negotiators commented that Eastman's posi-
tion was the same as Personnnel Manager Willard's position
previously expounded, that Respondent had not altered its
stance of requiring the Union to accept the Respondent's
positions on the big three items before it would make an
economic proposal, and that the parties were at the same
'Place they had been at the conclusion of the May 29 meet-
ing. The mediator adjourned the meeting without setting a
new date.
On July 11, 1973, at the call of the state mediator, the
negotiators met again at the bank building in Greenville,
with Eastman as spokesman for Respondent and Spotwood
as spokesman for the Union. According to employee negoti-
ators Dickenson and Burgess, the, parties went over the
controversial big three items without noticeable movement
on either side. Spotwood then said the Union could not
accept Respondent's grievance procedure, management
rights, and union security positions in order to get an eco-
nomic proposal.
Following a lunchbreak in the meeting, Respondent came
back to the negotiating table with a handwritten offer of a
proposed contract (plus two typed sheets on a management
clause and loss of seniority, G.C. Exh. 6). The offer included
Respondent's economic proposals, including a wage offer of
an annual 3 percent wage increase for 3 years, commencing
in August 1973.
Item 23 of the offer made clear that the proposal only
identified the items of the proposed contract, leaving the
express language to be drafted. Item 23 concluded with the
following condition:
This offer is in effect until 12:00 noon July 16, 1973.
Unless it has produced a settlement it is withdrawn and
no longer exists.
Industrial Relations Manager Eastman read through the
offer, and the union negotiators said they would review it.
The parties then (it was Wednesday, July 11) discussed a
next meeting, which became a problem, as employee Dick-
enson noted, because Respondent was insisting that its offer
was good only until 12 noon, Monday, July 16, and Indus-
trial Relations Manager Eastman said he could not meet
anytime before 10 a.m. July 16, nor anytime thereafter in the
following week, because of other business commitments.
Union Negotiator Spotwood also had conflicting date prob-
lems (according to Dickenson, Burgess, and Eastman), in-
cluding commitments for July 16. Eastman thought her
problems related to the intervening days. She asked, accord-
ing to Dickenson if extension of the July 16 time limit was
possible in view of the short time it allowed, and Eastman
replied no, adding if the parties met in the morning of the
16th and time was needed to help come to an agreement, he
might think about it. Eastman corroborated Dickenson's
testimony, but also made clear that it was the intention that
Respondent's proposal for a contract would lapse if not
accepted by July 16.
Union Negotiator Spotwood then agreed to a meeting at
the same location, 10 a.m., July 16, provided, according to
employee negotiators Dickenson and Burgess, that she was
able to cancel other scheduled meetings for July 16. It was
their testimony that when the meeting of July 11 broke up,
Spotwood had left the impression that there would be a
meeting at 10 a.m., July 16, which she would attend unless
she called the state mediator to the contrary. Managers
Eastman and Willard testified that she left the impression
the date was firm without any proviso.
In any event, according to Personnel Manager Willard
the state mediator telephoned him on July 13 saying the
Union could not make the meeting on Monday, July 16, and
the mediator, without provision for a new date, cancelled
the meeting. Employee negotiator Dickenson testified he
learned of the cancellation of the meeting on the weekend
preceding July 16 7
No meeting of the negotiators was held on July 16, and
the Union did not communicate with Respondent either
concerning the merits of its offer of July 11 or requesting its
extension beyond the July 16 time of lapse. Correspond-
ingly, Respondent gave no indication to the Union directly
or indirectly that the expiration time of the offer had been
extended beyond noon July 16, 1973.
Commenting in his testimony on the absence of any
union communication concerning the Respondent's offer of
July 11, employee negotiator Burgess said the negotiating
committee felt that the brief life of the offer, July 11-16,
with Manager Eastman specifying he could negotiate re-
garding it only on July 16 and Union Negotiator Spotwood
unable to break her previously made appointments that day,
was unreasonable; and the proposal having lapsed, there
was nothing to respond to. Employee negotiator Dickenson
stated, on cross-examination by Respondent, that the com-
mittee regarded the Respondent's economic offer of July 1 I
terminated by its own terms on July 16. Industrial Relations
Manager Eastman, on his cross-examination by the General
Counsel, conceded that Respondent's offer of July 11 had
lapsed on July 16 by the Union's failure to accept the offer.
On Respondent's cross-examination of Union Vice Presi-
dent Solenberger, concerning the absence of a union re-
sponse to the Respondent's offer of July 11 and
continuation of the strike, Solenberger testified that he be-
came aware of Respondent's offer within the next day or
7 Personnel Manager Willard claimed that the state mediator called him
later and scheduled another meeting for July 25 which the mediator thereaf-
ter cancelled allegedly because the Union cancelled. However, there was no
indication in the testimony of the employee and union witnesses of any
awareness by the union negotiators of these alleged conversations of a sched-
uled meeting for July 25, or cancellation thereof, and I do not credit Willard's
claim.
FEDERAL MOGUL CORPORATION 963
days after it was made. However no thought was given to
ending the strike at this point , he said , because the employ-
ees were on strike on account of Respondent's ultimatum
that they must accept Respondent 's bargaining positions on
noneconomic matters before they would be given an eco-
nomic proposal . Now, continued Solenberger , on July 11,
Respondent was offering a total contract , including an eco-
nomic offer, but again in the form of an ultimatum that the
offer had to be accepted by July 16 or it would disappear.
The strike continued , he said, because of the ultimatum
character of the offer and because the offer expired on the
day the union representative could not attend the meeting
because of other duties.
E. Termination of the Strike
On August 28, 1973, approximately 3 months after the
strike began, a last meeting of the negotiating committees
was arranged by the state mediator. The Union had a com-
mittee of six, headed by President Holleran and Vice Presi-
dent Solenberger; Respondent had a committee of four
headed by Industrial Relations Manager Eastman and Per-
sonnel Manager Willard. (Solenberger and employee nego-
tiator Burgess provided the description of the meeting
accepted by Respondent's witnesses.)
Union President Holleran stated that the Union had
come to negotiate a return to work of the striking employees
and to continue negotiating the terms of a contract. East-
man responded, saying Respondent would not agree to a
return to work of the strikers but would offer them only a
preferential hiring as jobs opened to those striking employ-
ees who signed unconditional requests to return to work.
Eastman indicated that the strikers had been replaced and
that only two jobs were open, but if job opportunities devel-
oped Respondent would consider all who requested rein-
statement; and those reinstated would retain their seniority,
but without credit for the time involved in the strike.
In reply, Union President Holleran proposed that if Re-
spondent would take back all of the striking employees, the
Union would drop its unfair labor practice charge and Re-
spondent would be relieved of further bargaining for a con-
tract. Respondent refused the offer.
The union committee then caucused and, on return to the
meeting, announced that the strike was over and that the
employees would be asked to sign reinstatement requests.
Union President Holleran gave Industrial Relations Man-
ager Eastman a handwritten letter stating that the strike was
terminated. The meeting ended with no further arrange-
ment for contract negotiating sessions , and with the under-
standing that the state mediator would call a meeting at the
request of either side. At the time of trial there had been no
further meetings or requests for meetings.
While the strike had been in progress, Respondent began
hiring replacements for the striking employees, according to
Personnel Manager Willard, starting with a few temporary
employees in the first week and, in the latter part of June
1973, hiring permanent replacements. The replacements
were told, in writing, that they were being hired as perma-
nent replacements of strikers, but that because of a pending
unfair labor practice charge there was a chance of a future
legal determination that the strikers might be in a position
to reclaim the jobs (Resp. Exh. 1, dated June 20, 1973). At
the same time, Respondent notified the strikers, in writing,
that it was hiring replacements to fill their jobs (G.C. Exh.
9, dated June 18, 1973).
Willard testified that some of the employees came back
to work before the strike ended, that others resigned and
took employment elsewhere, some before and some after
the strike ended, that no jobs were eliminated, and that at
the time of trial all jobs that existed at the time of the strike
but one were filled either with new hires or with those for-
mer strikers who had been returned to the job.
The General Counsel contends, because of the alleged
unfair labor practice strike that there has been Section
8(a)(3) discrimination in the case of eleven employees who
were on strike and sought return to work. Based upon the
stipulations of the parties the facts concerning the eleven
employees are as follows:
Robert Barnes-apphed for reinstatement at the end of
strike, and has not resigned, but has not been offered rein-
statement.
Deanna Jones-applied for reinstatement at end of strike,
and has not resigned, but has not been offered reinstate-
ment.
Richard Russell-applied for reinstatement at end of
strike, was offered, on October 23, 1973, a job starting Octo-
ber 29, 1973, as a blueprint operator at $124 per week in lieu
of his previous job as detailer I at $153 per week. There was
no stipulation or evidence that the substitute job was the
equivalent of the previous job.
Ronald Porter-applied for reinstatement at end of strike,
gave 2 weeks' notice of resignation effective September 18,
1973,8 but was never offered reinstatement.
Jerry Barber-apphed for reinstatement at end of strike,
gave 2 weeks' notice of resignation effective September 24,
1973, but was never offered reinstatement.
Cliff Larned-applied for reinstatement at end of strike,
gave 2 weeks' notice of resignation effective September 24,
1973, but was never offered reinstatement.
Robert Burgess-applied for reinstatement at end of
strike, gave 2 weeks' notice of resignation (sent September
28) effective October 12, 1973, was offered on September 27,
1973, reinstatement at work in a different classification than
his previous job at the same $147 per week with a maximum
of $168 (as against his former maximum of $186) per week.
There was not stipulation or evidence that the substitute job
was an equivalent job.
Marie Linder-applied for reinstatement at the end of
strike, reinstated to former job effective November 5, 1973
Jackie Lake-apphed for reinstatement at end of strike,
reinstated to former job effective September 24, 1973.
Doris Peterson-applied for reinstatement on or about
August 16, 1973 (which was prior to end of strike), and was
reinstated to former job effective October 8, 1973.
Dennis Burdick-applied for reinstatement on or about
August 16, 1973 (which was prior to end of strike), and was
reinstated to former job prior to the end of strike on a date
8 It was stipulated that resignation with 2 weeks' notice was required for
an employee to obtain accrued vacation pay In each of the resignation
notices listed here, it was further stipulated that the accrued vacation money
was paid
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unspecified by the parties.
In connection with each of the eleven named employees,
Personnel Manager Willard testified that each had been
permanently replaced before the end of the strike and none
of their jobs had been eliminated.
F. Concluding Findings
Looking at the course of negotiations over the 9 months
and 24 meetings that culminated in the employees' strike,
the evidence demonstrates that Respondent was not bar-
gaining with any sincere intention of reaching an agreement
with the Union.
As stated by the Supreme Court in N.L.R.B. v. Insurance
Agents' International Union, AFL-CIO [Prudential Insur-
ance Co.], 361 U.S. 447, 488 (1960), the Act imposes "a
mutual duty upon the parties to confer in good faith with
a desire to reach agreement"; and, as further said by the
Court in N.LR.B. v. Katz, 369 U.S. 736, 747 (1962), the
bargaining obligation requires that the negotiating parties
refrain from behavior "which directly obstructs or inhibits
the actual process of discussion, or which reflects a cast of
mind against reaching agreement." In this regard, the Board
can examine the contents of proposals put forth or positions
taken, for "if the Board is not to be blinded by empty talk
and by the mere surface motions of collective bargaining,
it must take some cognizance of the reasonableness of the
positions taken by an employer in the course of bargaining
negotiations. . . [W]hile the Board cannot force an em-
ployer to make a `concession' on any specific issue or adopt
any particular position, the employer is obliged to make
some reasonable effort in some direction to compose his
differences with the union, if Section 8(a)(5) is to be read as
imposing any substantial obligation at all." Kayser-Roth
Hosiery Company, Inc. v. N.L.R.B., 430 F.2d 701, 702-703
(C.A. 6, 1970), citing and quoting N.LR.B. v. Reed & Prince
Manufacturing Company, 205 F.2d 131, 134-135 (C.A. 1,
1953), cert. denied 346 U.S. 887 (1953).
Here, Respondent was not only refusing to make any
economic offer but also blocked any discussion, over the
9-month prestrike period, of any of the Union's economic
proposals, and then insisted on maintaining this state of the
negotiations unless and until the Union would agree to
Respondent's major noneconomic proposals. Respondent's
refusal to discuss the half of the contract of most signifi-
cance to the employees, and its requirement that the Union
had to agree to part of the other half of the contract before
the Union could obtain discussion of all parts of a whole
contract, was antithetical to good-faith bargaining. The re-
fusal and the requirement obstructed the process of mean-
ingful contract discussion and exhibited on Respondent's
side a cast of mind against reaching agreement, because, as
Union Negotiator Solenberger pointed out from negotiating
experience (and Respondent's experienced negotiators were
equally aware), a sufficient economic offer can help a union
in giving up more in terms of union security, management
rights, and other noneconomic matters.
The inference against Respondent's sincerity and good
faith in bargaining was heightened by the fact that the prior
condition for permitting discussion of economic matters
obliged the Union to concede that Respondent would have
exclusive control over creation and change of jobs and job
classifications, job assignments, transfers, suspensions, and
like matters, which were conditions of employment as to
which the parties were obligated by law to bargain collec-
tively, and which matters are commonly covered in collec-
tive-bargaming contracts and made subject to grievance
and arbitration procedures, ITT Henze Valve Service, 166
NLRB 592, 597, 598 (1967). Not only was there no arbitra-
tion contemplated in the Respondent's required condition
(except for dismissals), but wherever the Union might dis-
agree with Respondent's decision or interpretation its only
recourse would be strike which would terminate the con-
templated collective-bargaining contract after 5 days of
strike. Obviously, such a condition would defeat the object
of achieving labor peace and stability by collective agree-
ment. Respondent's requirement that the Union agree to
such condition in advance of discussing a whole contract
created the appearance that Respondent was denigrating
the Union and the collective-bargaining process in the eyes
of the bargaining unit employees.
That the union negotiators complied with Respondent's
insistence on dealing first with noneconomic matters and
initially waived insistence on their part of full contract dis-
cussion, provides no basis for Respondent now faulting the
Union, as Respondent appears to do in its brief. The rec-
ord discloses that the Union engaged in good-faith bar-
gaining on the noneconomic matters, including providing
proposals for compromise and giving in to Respondent
completely on one of the big four items. The alleged delays
and lateness affecting some of the meetings, and the
change in union negotiators (noted supra), were matters
unrelated to Respondent's conversion of its ground rule on
negotiating noneconomics first into an unyielding condi-
tion that Respondent's position on the important noneco-
nomics matters had to be accepted by the Union before
there could be any discussion and negotation of any eco-
nomic matters. Thus the simple answer to Respondent's
contention that the bona fides of its ' collective bargaining
cannot be tested because the Union did hot bargain in
good faith, is that the Union did bargain in good faith,
Imperial Machine Corp., 121 NLRB 621 (1958)?
In this connection, the Union's threat of strike while ne-
gotiations were in progress, was not inconsistent with its
good-faith bargaining, N.L.R.B. v. E. L. Dell, Jr., Trading
as Waycross Machine Shop, 283 F.2d 733,739 (C.A. 5, 1960).
I find that Respondent's refusal to submit or discuss, or
to permit any discussion of, economic proposals in the con-
tract negotiations, and requiring as a condition for any such
discussion that the Union agree to accept Respondent's
terms on certain noneconomic matters, was a refusal to
bargain in good faith in violation of Section 8(a)(5) and (1)
of the Act. The Union's strike, that commenced on May 30,
1973, was in protest of Respondent's unlawful conduct and
9 I did not, and do not, accept the General Counsel's view that the Union's
bargaining conduct was so much separable from Respondent 's bargaining
conduct that the latter could be tested independently, without examining the
Union's bargaining conduct, as the special facts warranted in Chicago Typo-
graphical Union No 16, (Chicago Newspaper Publishers Association), 86 NLRB
1041, 1063 (1949). It appeared to me that Times Publishing Co., 72 NLRB 676,
683 (1947), using mutual testing as the criterion for the usual case, was more
apt for the case at bar.
FEDERAL MOGUL CORPORATION 965
was an unfair labor practice strike.
Respondent argues that even though its bargaining con-
duct, prior to May 30, 1973, may have sparked the strike,
its submission on July 11, 1973, 6 weeks after the strike
began, of a contract proposal including an economic offer,
cured or at least halted its unfair labor practice, and that it
was the Union's failure to meet with Respondent, or other-
wise reply to Respondent's offer, that prolonged the strike
another 6 weeks before,it ended in defeat for the Union.
The contention might have had merit if Respondent had
submitted its midstrike economic offer in good faith. How-
ever, the nature of `the offer and the manner in which it was
made available suggests that Respondent was not desirous
of reaching an agreement with the Union, but rather was
seeking to acquire a defense to the unfair labor practice
charge filed with the Board by the Union. Thus, the offer
was open only until noon of the one day following the
making of the offer on which Respondent would engage in
negotiation concerning it, July 16, and the offer had to be
accepted in that time or it lapsed, as it did. The offer con-
tained over 20 items or articles that the parties had never
discussed -and that the Union had not seen , because of
Respondent's intransigence in the preceding 11 months of
negotiation, on such important matters as wages, merit, and
cost-of-living increases, holidays, vacations, insurance and
hospital benefits, employee investment plan, pension plan,
and others. Moreover the language of those proposed arti-
cles was not provided with the offer but was to be drafted
later, although the language of a new noneconomic propos-
al by Respondent on loss of seniority was included in the
offer.
For all practical pruposes, Respondent was making the
Union a take-it-or-leave-it offer, which negates the desire to
reach ultimate agreement that collective bargaining presup-
poses, N.L.RB. v. Insurance Agents International Assn, su-
pra, 361 U.S. at 485, and see General Electric Company, 150
NLRB 192, 193, fn. 3, 267 (1964); and, in effect, snatched
back the offer before there was time and opportunity to
consider and bargain about it. Respondent's conduct was
still another piece of the pre-strike pattern that denied the
Union any meaningful discussion or opportunity for discus-
sion of the economic terms of a contract, and was a further
attempt to discredit the Union and the collective bargaining
process, in the eyes of the unit employees. Compare, Quality
Motels of Colorado, Inc., 189 NLRB 332,'335, 337 (1971),
holding that employer's take-it-or-leave-it proposal and
abrupt withdrawal of offer was to discredit the union; and
Thompson Brothers Coal Company, Inc., 192 NLRB 24, 25
(1971), holding that an employer' s eventual offer of wage
increase , after 15 months of sterile negotiating meetings
and 10 weeks of strike, was not indicative of a sincere de-
sire to compose differences and reach agreement with the
union if possible.
Respondent's total bargaining conduct, both after as well
as before the strike began, did not comport with its obliga-
tion to bargain in good faith, and violated Section 8(a)(5)
and (1) of the Act. The strike remained an unfair labor
practice strike for its duration.
Since the strike was an unfair labor practice strike, the
striking employees did not lose their status as employees
and were entitled to full reinstatement to their former or
substantially equivalent positions immediately upon their
unconditional offer to return to work, even though perma-
nent replacements had been hired, Mastro Plastics Corp. v.
N.L.R.B., 350 U.S. 270, 278 (1956); N.L.R.B. v. Fitzgerald
Mills Corp.; 313 F.2d 260, 269 (C.A. 2, 1963), cert. denied
375 U.S. 834 (1963).
Respondent's written terminations of the unfair labor
practice strikers and purported permanent replacement of
them in late June 1973 was a violation of Section 8(a)(3) and
(1) of the Act, ITT Henze Valve Service, supra, 166 NLRB
592, 599; and Respondent's refusal to immediately reinstate
the eleven strikers (named in sec. II, E, above), upon their
respective unconditional requests for reinstatement, also
violated Section 8(aX3) and (1) of the Act, Mastro Plastics
Corp. v. N.L.R.B., supra, 350 U.S. at 278.
Seven of these eleven strikers have not been reinstated to
their former or substantially equivalent jobs, and are enti-
tled to an order for reinstatement, including those of the
seven who "resigned" to obtain their accrued vacation pay
after they had requested reinstatement. Among the seven
are employees Richard Russell and Robert Burgess who
were offered lesser jobs than they formerly held. All I 1 of
the strikers are entitled to be made whole for loss of earn-
ings as a result of refusal to reinstate, or failure to promptly
reinstate, them to their respective former or substantially
equivalent jobsl
CONCLUSIONS OF LAW
1. By refusing, since August 23, 1972, to bargain in good
faith with the Union as the certified representative of the
bargaining unit of Respondent's office workers at the
Greenville plant, including refusal to discuss or submit eco-
nomic proposals, conditioning discussion of economic mat-
ters on prior acceptance of Respondent's terms on
noneconomic matters, and otherwise preventing full and
meaningful contract negotiations, Respondent has engaged
in unfair labor practices in violation of Section 8(a)(5) and
(1) of the Act.
2. These unfair labor practices caused an unfair labor
practice strike by Respondent's bargaining unit employees,
which strike was prolonged by Respondent's continued re-
fusal to bargain in good faith.
3. During the unfair labor practice strike Respondent
unlawfully terminated the employment of the striking em-
ployees and purported to replace them permanently, there-
by engaging in unfair labor practices in violation of Section
8(a)(3) and (1) of the Act.
4. Notwithstanding unconditional requests for reinstate-
ment by 11 of the former striking employees, Respondent
failed to promptly reinstate them, or to offer them prompt
reinstatement, to their former or substantially equivalent
jobs, and has yet to reinstate or offer to reinstate seven of
them, thereby engaging in unfair labor practices in violation
of Section 8(a)(3) and (1) of the Act.
5. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
In connection with an order that Respondent bargain in
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
good faith, the Union is entitled to application of the reme-
dy developed by the Board in Mar-jac Poultry Company,
Inc., 136 NLRB 785, 786-787 (1962),1 so that the employees
of the bargaining unit would enjoy a year of good-faith
bargaining and not be deprived of the services of the Union
as their selected bargaining agent by technical expiration of
the initial year of certification which, unless altered, began
June 26, 1972.
It will be recommended, that Respondent: (1) Cease and
desist from its, unfair labor practices; (2) upon request, re-
sume bargaining and bargain with the Union in good faith,
recognizing that the initial year of certification of the Union
as representative of the bargaining unit shall be deemed to
begin on the date Respondent commences to bargain with
the Union in good faith; (3) offer immediate and full rein-
statement to his former or substantially equivalent, job to
each of the unfair labor practice strikers who applied or
applies, dismissing if necessary persons hired on and after
May 30, 1973. In this regard Respondent shall make whole
for any resulting loss of earnings any applying striker who
was or is refused reinstatement within 5 days after his appli-
cation, the loss of earnings to be computed on a quarterly
basis as set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), approved in N.L.R.B. v. Seven Up Bottling Com-
pany, 344 U.S. 344 (1953), with interest at 6 percent per
annum as provided in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), approved in Philip Carey Manufacturing
Company v. N.L.R.B., 331 F.2d 720 (C.A. 6, 1964), cert.
denied 379 U.S. 888 (1964); and (4) post the notices provid-
ed for herein.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended: 11
ORDER
A. For the purpose of determining the duration of the
certification of the Union as the recognized bargaining rep-
resentative of the appropriate unit, the initial year of certifi-
cation shall be deemed to begin on the date the Respondent
commences to bargain in good faith with the Union.
B. Respondent, its officers, agents, successors and as-
signs, shall:
1. Cease and desist from:
(a) Failing and refusing to bargain collectively in good
faith with the Union as the collective-bargaining representa-
tive of the office workers unit, found appropriate by the
Board, comprising Respondent's general office employees,
office clerical employees, and laboratory technicians, at the
Greenville, Michigan, plant, but excluding all professional
10 And see, Commerce Company dlbla Lamar Hotel, 140 NLRB 226, 229
(1962), enfd 328 F2d 600 (C A. 5, 1964), cert. dented 379 U.S 817 (1964);
Burnett Construction Company, 149 NLRB 1419, 1421 (1964), enfd . 350 F.2d
57 (CA 10, 1965); Capitan Drilling Company, 167 NLRB 144, 146 (1967),
enfd . 408 F.2d 676 (C A. 5, 1969).
11 In the event no exceptions are filed as provided by Sec. 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , recommendations, and order herein shall , as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and order, and all objections thereto shall be
deemed waived for all purposes.
employees, confidential employees, custodians, guards, and
supervisors as defined in the Act, and all employees repre-
sented by other labor organizations.
(b) Failing and refusing to promptly offer to reinstate,
and to reinstate, to their former or substantially equivalent
jobs former striking employees who have applied uncondi-
tionally for reinstatement.
(c) In any like manner interfering with, restraining, or
coercing employees in the exercise of their rights guaranteed
under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain collectively in good faith with
the Union as the bargaining representative of all employees
in the office workers unit, described in paragraph 1(a)
above, with respect to wages, hours, and other terms and
conditions of employment, and if an understanding is
reached embody it in a signed agreement.
(b) Offer to employees Robert Barnes, Deanna Jones,
Richard Russell, Ronald Porter, Jerry Barber, Cliff Larned,
Robert Burgess, and to all other employees who partici-
pated in the strike which began on May 30, 1973, who
unconditionally applied or apply for reinstatement, and
who have not already been reinstated, immediate and full
reinstatement to their former positions, without prejudice to
their seniority or other rights and privileges, dismissing if
necessary persons hired by Respondent on and after May
30, 1973. Make whole each of the aforenamed seven em-
ployees, and employees Marie Linder, Jackie Lake, Doris
Petersen, and Dennis Burdick, who were reinstated but not
promptly as required by law, and any other such applying
employee, for any loss of earnings suffered if Respondent
delayed or delays in reinstating him or refused or refuses to
reinstate him, for so long as the delay or refusal continued
or continues beginning 5 days after the employee applied
for reinstatement, and computing the loss of earnings in the
manner set forth, in the section of this Decision entitled,
"The Remedy."
(c) Preserve and, upon request, make available to the
Board and its agents, for examination and copying, all pay-
roll records, social security payment records, timecards, per-
sonnel records and reports, and all other records necessary
to ascertain loss of earnings under the terms of this order.
(d) Post in its plant at Greenville, Michigan, copies of the
attached notice marked "Appendix." 12 Immediately upon
receipt of copies of said notice, on forms to be provided by
the, Regional Director for Region 7 (Detroit, Michigan), the
Respondent shall cause the copies to be signed by one of its
authorized representatives and posted, the posted copies to
be maintained for a period of 60 consecutive days thereafter
in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from the date of the receipt of this order,
12 In the event that the Board 's order is enforced by ajudgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall be changed to read "Posted
Pursuant to a Judgment of the United States Court of Appldals Enforcing
an Order of the National Labor Relations Board "
FEDERAL MOGUL CORPORATION 967
what steps the Respondent has taken to comply herewith.
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 having found, after a
trial , that we violated the National Labor Relations Act, we
hereby notify you that:
WE WILL NOT fail or refuse to bargain collectively in
good faith with Office and Professional Employees In-
ternational Union , Local 42, AFL-CIO (the Union).
WE WILL upon request bargain collectively in good
faith with the Union as the bargaining representative of
all employees in the bargaining unit described below
with respect to wages, hours, and other terms and con-
ditions of employment , and, if an understanding is
reached, embody it in a signed agreement . The bargain-
ing unit is:
WE WILL NOT in any like manner interfere with your
right to join, assist, or be represented by, a labor union,
or interfere with any of your rights of self-organization
and mutual aid guaranteed under Section 7 of the Act.
Because the Board has found that the employees on strike
since May 30, 1973, were unfair labor practice strikers,
WE WILL offer back to employees Robert Barnes,
Deanna Jones, Richard Russell, Ronald Porter, Jerry
Barber, Cliff Larned, Robert Burgess, and to each
other former striker who applies unconditionally for
reinstatement, his old job (if he has not already been
reinstated), and will dismiss, if necessary, persons hired
since May 30, 1973. To these seven named employees,
and to employees' Marie Linder, Jackie Lake, Doris
Petersen, and Dennis Burdick, who were reinstated but
not promptly as required by law, and to any other
applying former striker whose reinstatement was or is
delayed or refused, WE WILL pay each for any resulting
loss of earnings suffered as a result of our failure or
refusal to have reinstated him or to reinstate him within
5 days after his application for reinstatement.
All general office employees, office clerical em-
ployees, and laboratory technicians, at our Green-
ville, Michigan, plant; but excluding all professional
employees, confidential employees, custodians,
guards, and supervisors as defined in the National
Labor Relations Act (the Act), and all employees
represented by other labor organizations.
WE WILL NOT fail or refuse to promptly offer to reinstate,
and to reinstate, to their former or substantially equiva-
lent jobs former striking employees who have applied
unconditionally for reinstatement.
Dated By
FEDERAL MOGUL CORPORATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 500 Book Building, 1249 Washing-
ton Boulevard, Detroit, Michigan 48226, Telephone
313-226-3200.