Indiana Desk Co., Inc.

National Labor Relations Board - Board Decisions

Oct 10, 1985

276 N.L.R.B. 1429 (N.L.R.B. 1985)

INDIANA DESK CO.
Indiana Desk Company, Inc. and United Furniture
Workers of America, AFL-CIO, and its affili-
ated Local 334-236
Command Investigations Bureau, Inc ,. and United
Furniture Workers of America, AFL-CIO, and
its affiliated Local 334-236. Cases 25-CA-
14384, 25-CA-14384-2, 25-CA-14513, 25-
CA-14687, 25-CA-14891, 25-CA-15104, 25-
CA-15244, 25-CA-15959, 25-CA-15031
10 October 1985
DECISION AND ORDER
BY MEMBERS DENNIS, JOHANSEN, AND
BABSON
On 8 April 1985 Administrative Law Judge
James T. Youngblood issued the attached decision.
The General Counsel filed exceptions and a sup-
porting brief. The Charging Party filed cross-ex-
ceptions and a supporting brief.' Respondent Indi-
ana Desk Company, Inc. (Desk) filed cross-excep-
tions and a brief in support of its cross-exceptions
and in answer to the General Counsel's exceptions
and brief. Thereafter, the Charging Party filed a
memorandum of law in opposition to Respondent
Desk's third cross-exception, pertaining to the
judge's ruling denying, in part, the motion for par-
tial summary judgment.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fndings,2 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondents, Indiana
Desk Company, Inc., Jasper, Indiana, and Com-
mand Investigations Bureau, Inc., Indianapolis, In-
diana, their officers, agents, successors, and assigns,
shall take the action set forth in the Order.
i Respondent Desk's motion to strike the Charging Party's exceptions
is denied as lacking in merit Contrary to Respondent Desk's contention,
we find that the Charging Party's exceptions were timely filed and com-
plied with Sec 102.46 of the Board 's Rules and Regulations.
2 In the absence of exceptions , we adopt , pro forma , the judge's find-
ing that Respondent Desk 's implementation of the pension plan effective
1 April 1982 did not violate the Act.
The judge inadvertently stated that Respondent Desk's 19 May 1982
mailgram issued 6 "months," instead of "weeks," after the strike com-
menced 29 March 1982
J. Frederick Gatzke, Esq. and Sharon Bailin Esq., of Indi-
anapolis, Indiana, for the General Counsel.
1429
Irvin H. Rich, Esq., of Louisville, Kentucky, and James
R. Kniffen, Esq., of Nashville, Tennessee, for Respond-
ent Indiana Desk.
Ronald P. Jones, of Indianapolis, Indiana, for Respondent
CIB.
Andrew Irving, Esq., of New York, New York, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
JAMES T. YOUNGBLOOD, Administrative Law Judge.
The several complaints and amendments allege that Indi-
ana Desk Company, Inc. (Respondent Desk or Desk)
and Command Investigation Bureau, Inc. (Respondent
CIB or CIC) engaged in extensive violations of Section
8(a)(1) of the Act, and that Respondent Desk also en-
gaged in acts and conduct in violation of Section 8(a)(3)
and (5) of the Act. This matter was tried before me in
Jasper, Indiana, on various dates between December 5,
1983, and October 4, 1984. All parties were represented
at the hearing and the General Counsel, Respondent
Desk, and United Furniture Workers of America, AFL-
CIO, and its affiliated Local 334-236 (the Union) filed
briefs which have been duly considered.
On the entire record in this matter, from my observa-
tions of the witnesses and their demeanor while testify-
ing, and after due consideration of the briefs filed herein,
I make the following
FINDINGS OF FACT AND CONCLUSIONS'
1. THE BUSINESS OF THE EMPLOYERS INVOLVED
Respondent Desk is an Indiana corporation engaged in
the manufacture, sale, and distribution of wood office
furniture and related products at its Jasper, Indiana facili-
ty. Respondent CIB is an Indiana corporation engaged in
the business of operating a security service and providing
security, guard, and related services to other enterprises
and individuals. Its principal office is in Indianapolis, In-
diana, and it performs its services in various locations in
the State of Indiana. During 1982 and 1983 Respondent
CIB performed such services for Respondent Desk at its
Jasper, Indiana facility.
The Respondents admit, and I find, that they are em-
ployers within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Respondents admit, and I find, that United Furni-
ture Workers of America, AFL-CIO, and its affiliated
i The facts found herein are a compilation of the credited testimony,
the exhibits, and stipulations of fact, viewed in light of logical consisten-
cy and inherent probability Although these findings may not contain or
refer to all of the evidence, all has been weighed and considered. To the
extent that any testimony or other evidence not mentioned in this deci-
sion may appear to contradict my findings of fact, I have not disregarded
that evidence but have rejected it as incredible, lacking in probative
weight, surplusage, or irrelevant. Credibility resolutions have been made
on the basis of the whole record, including the inherent probabilities of
the testimony and the demeanor of the witnesses. Where it may be re-
quired I will set forth specific credibility findings.
276 NLRB No. 165
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local 334-236 are labor organizations within the mean-
ing of Section 5 of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Facts
The employees of Respondent Desk have been repre-
sented by the United Furniture Workers of America,
AFL-CIO for approximately 40 years, and since at least
1976 the Union has been the exclusive representative for
purposes of collective bargaining in a unit consisting of
all production and maintenance employees and all intra-
city truckdrivers. The most recent collective-bargaining
agreement between the parties was negotiated in 1979 for
a 3-year period ending January 9, 1982.
On July 27, 1981, the Union advised Respondent Desk
that it desired to amend/or modify the existing collec-
tive-bargaining agreement as soon as possible, and re-
quested that Respondent Desk submit certain informa-
tion. On August 3, 1981, Respondent Desk replied that it
was in the process of compiling the information request-
ed and indicated that as the contract did not expire until
January 9, 1982, it saw no reason to commence negotia-
tions before the fall of 1981. On October 30, 1981, the
Union again sent a notice to the Company notifying it of
its desire to amend and/or modify the agreement and re-
questing certain information. On December 2, 1981, the
Union advised Respondent Desk that in two separate let-
ters it had requested certain information and advised that
the incentive system as used in the plant was to be given
a very high priority in the upcoming negotiations and
that the information requested was important to the
Union in this regard.
On December 4, 1981, formal negotiations between
Respondent Desk and the Union began. George Roth-
man, Director of United Furniture Workers of America's
insurance and pension funds, was the chief spokesman
for the Union, although he was not present at this initial
session. Ivan Rich Jr., Respondent Desk's counsel, was
the chief spokesman for Respondent Desk. At this ses-
sion the Union presented a complete proposal for a con-
tract.2 Between December 4, 1981, and July 27, 1983,
the parties had approximately 22 negotiation sessions.3
In the collective-bargaining agreement between Re-
spondent Desk and the Union which was to expire on
January 8, 1982, article 65 entitled "No Strikes or Lock-
outs" read as follows:
There shall be no strikes or lockouts by either
party; provided, however, this restriction shall not
apply when and if wage reopening negotiations
occur on the wage issue. Engaging or participating
in an unauthorized strike by an employee shall be
cause for discharge.
In the contact proposals presented by the Union on
December 4, 1981, this article 65 was changed to read as
follows:
2 See Exhs 31a and b.
3 The parties entered into a stipulation covering the bargaining and the
proposals. This is entitled "Exh. 31 "
There shall be no strikes or lockouts by either
party; provided, however, this restriction shall not
apply when and if wage reopening negotiations
occur on the wage issue, or when, in the opinion of
the Union, the Company is not negotiating griev-
ance settlements in good faith or paying arbitration
awards.
The last sentence was also dropped from the prior provi-
sion. At this meeting the parties reserved the right to add
to, modify, or amend proposals at any time during the
negotiations.
The next bargaining negotiation session was held on
December 14, 1981. The Company was represented by
Rich, and the chief spokesman for the Union was
George Rothman. At this meeting the Company gave its
response to the Union's proposals which were presented
at the December 4 meeting, and the Union presented the
Company with its pension fund "A" plan and its insur-
ance fund proposal, which included dental benefits. As
indicated the Company made responses to the Union's
proposals and also indicated that it would be willing to
give the Union the right to strike as proposed. The Com-
pany informed the Union that it would be presenting a
comprehensive proposal on insurance and pension bene-
fits at the next meeting.
The next bargaining session was held on December 22,
1981. George Rothman did not attend this session. At
this meeting the Union withdrew its proposed language
with regard to the no-strike provision, article 65. With
regard to article 24, the grievance procedure, the Union
proposed that if it failed to proceed to arbitration within
40 working days after receiving the Company's negative
response to the third-step discussion, the dispute or
grievance shall be deemed settled or dropped. The Com-
pany made several counterproposals, but specifically
with regard to the Union's latest proposal on article 24,
step 4, advised that it intended to redraft that section and
the no-strike clause to provide arbitration for everything
except incentive rates, and that on rates the first three
steps of the grievance procedure would remain the same
but if no agreement was reached the Union would have
the right to strike within certain time limitations.4 The
4 In the contract between the parties which expired on January 9,
1979, art 45, which dealt with incentive work rates, provided that any
dispute or difference with reference to any incentive rate shall be adjust-
ed by collective bargaining only and may not under any of the terms of
that agreement or otherwise be submitted to arbitration for final and
binding determination That agreement, like the agreement which was to
expire on January 9, 1982, prohibited strikes or lockouts by either party
except in wage reopening negotiations on wage issues In the agreement
which was negotiated in 1979, and to expire on January 9, 1982, the par-
ties removed from art. 45 that language which provided for collective
bargaining between the parties and also eliminated'the language specify-
ing that incentive rates could not be arbitrated. This meant that if the
Union was dissatisfied over a proposed incentive rate set by the Compa-
ny, its recourse was through the grievance and arbitration procedure By
its new proposal of December 4, 1981, relating to strikes and lockouts, in
addition to the grievance and arbitration procedure, the Union would
now have the right to strike when in its opinion the Company was not
negotiating grievance settlements in good faith or paying arbitration
awards, which necessarily would cover incentive rates of pay.
INDIANA DESK CO.
Company indicated that these provisions should be in
writing and that at the next session it intended to present
a comprehensive proposal on economics, health and wel-
fare, and pensions.
The next bargaining session was held on December 31,
1981, and the Company presented its written proposals,
which are contained in the stipulation as Exhibits 31c, d,
e, and f. With regard to disputes over incentive rates the
Company provided in article 24 a subparagraph reading
as follows:
Any dispute regarding the establishment or modifi-
cation of incentive rates shall not be subject to arbi-
tration, but the Union shall have the right, within
ten (10) working days after the Company' s negative
response in Step 3 and after forty-eight (48) hours
actual notice to the Company, to take lawful eco-
nomic strike action in support of its position in that
dispute. In the event of Union economic action as
provided in the preceding sentence, the Company
shall retain all its rights, including the right to per-
manently replace striking employees.
Additionally the Company proposed a very broad and
comprehensive no-strike provision and a no-lockout pro-
vision.
The Company also set forth in separate documents
both its comprehensive pension plan proposal and insur-
ance proposal. Both of these proposals were to be in lieu
of the Union's pension plan and the Union's insurance
plan. At this meeting Rothman informed the Company
that presenting a new pension proposal 10 days before a
contract was to end was strike provoking.
The next meeting was held on January 5, 1982.
George Rothman did not attend this meeting. The parties
discussed various items of the contract proposals but
nothing spectacular was resolved. The parties met again
on January 6, 1982, and again George Rothman was not
present. At this meeting the Union held fast to its rights
under article 24 to arbitrate incentive rates. The Union
withdrew some of its other proposals and the parties dis-
cussed other articles and reached agreement on some of
them.
The next bargaining session was held on January 7,
1982, at which time the Company presented its so-called
final offer which covered some movement in certain arti-
cles but left most proposals the same. At that meeting
the parties agreed to extend the current collective-bar-
gaining agreement on a day-to-day basis from January 9,
1982, subject to a 10-day notice of cancellation by either
party. Again George Rothman was not in attendance at
this meeting.5
The next meeting was held on February 4, 1982, and
Rothman was in attendance at this meeting. At this meet-
ing the Company presented certain amended proposals,
attached to the stipulation as Exh. 31g. The Union also
presented certain counterproposals, and other than that
all other proposals remained the same.
5 Rothman's absence from the January meetings was due to a death in
his family.
1431
The next bargaining session was held on February 5,
1982, and the Company, to a certain extent, offered its
proposal on insurance . Insurance and pensions were dis-
cussed with no agreement and the Union held firm to its
prior proposals.
The next bargaining session was on February 25, 1982.
At this session the Company presented new proposals;
they are attached to the stipulation as Exhs. 31m, n, o,
and p. The Union presented several additional proposals
and after discussion all other proposals remained the
same.
The next bargaining session was held on March 6,
1982. Pension and insurance proposals were discussed
and neither party changed its contract proposals.
The next bargaining session was held on March 13,
1982. The pension proposals were discussed and neither
party changed its contract proposals.
B. The Bargaining Within the 10(b) Period
The next bargaining session was held on March 25,
1982. The Union presented additional proposals, includ-
ing an addition to its proposed article 41,6 which provid-
ed that "until such agreement has been set, affected em-
ployees will receive average pay." By practice the em-
ployees received "average pay" when the parties could
not agree on an incentive rate. This proposal would have
made it a contractual provision.' Also the Union pro-
posed a change in article 45 which would have reinstated
the no-arbitration language dropped in 1979.
Thus, the Union was proposing that the parties return
to the pre-1979 contract with respect to collective bar-
gaining and no-arbitration of incentive rates, adding that
until agreement was reached employees would receive
average pay.
On the morning of March 29, 1982, the Union went on
strike and began picketing Respondent Desk's premises
in Jasper, Indiana. Later in the day the parties had a ne-
gotiation session in which the Union proposed that the
pension benefit be reduced to $19.50 per month rather
than $20 a month. In all other respects the parties held to
their prior contract proposals on all other issues.
On April 30, 1982, another negotiation session was
held and the parties held to prior contract proposals and
the Union offered settlement proposals on some out-
standing grievances. At the negotiation session of May
12, 1982, the parties held to prior contract proposals. On
June 23, 1982, the Union proposed that on incentive
rates it could agree to some further modification of arti-
cles 41 and 45 but could not agree to total control by the
6 The Union's proposed art 41 states that
So long as the existing piece work system is maintained, it is agreed
that the present piece work rates, or piece work rates on any new
items or on the reinstatement of old items which had piece work
rates and are not now being produced, shall be set by agreement be-
tween the Union and the Company No new rate will be set, nor any
odd/existing rate will be changed, without prior agreement with the
Union. [The italicized language was added in the 1981 proposals]
T Average pay is defined as the average hourly incentive rate an em-
ployee earns over a 13-week period prior to June 1 of each year, except
in the cabinet room where the average is computed on a monthly basis
Average is utilized in determining vacation and holiday entitlements and
is also used as the rate of compensation when an employee is not per-
forming piece-rate work
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company. Concerning pensions , the Union offered to
consider the Company' s pension with conditions and
modest increases . Concerning insurance , the Union of-
fered to take the Company plan with dental and optical
language as proposed by the Union. The Company stated
that it would stand on prior proposals but could prob-
ably implement some of the Union's eyeglass language in
the Company' s insurance plan.
On July 7, 1982, the Union presented a document sum-
marizing the position of the parties. The parties held to
their prior proposals.
On September 24, 1982, the Union made a counterpro-
posal that it would accept the Company's article 24 upon
acceptance of the Union's position on article 41 and the
Union's position on step 4 of its grievance proposal.8
The Union made several other counterproposals, includ-
ing proposals on articles 26, 32, 37, 38, 42, 43, 45, and 47,
and also proposed that all employees who were em-
ployed on March 29, 1982, other than those who did not
choose to return for various reasons would get their jobs
back. It does not appear that the Company had any pro-
posals at this meeting.
The next bargaining session was held on November 19,
1982. The Union presented documents summarizing the
positions of the parties to date and the parties held firm
to their prior contract proposals. The next meeting was
held on December 3, 1982. The parties held to their
prior proposals except that the Union withdrew its vaca-
tion proposal for "as is" in the expired contract. The
next meeting was held on April 22, 1983, and the parties
held to their prior proposals except the Union lowered
its pension benefit proposal from $19.50 to $18.
The next bargaining session was held on July 27, 1983,
and in response to a union letter, the Company made a
full proposal which is set forth as Exhibit 31t to the stip-
ulation. The Union held to its earlier proposals except it
again lowered its pension benefit proposal from $18 to
$17. This was the last bargaining session between the
parties.
Related Events
In the meantime on February 15, 1982, by letter, Re-
spondent Desk informed the Union of its desire to imple-
ment its pension proposal because the end of the United
Furniture Workers of America's pension plan year on
February 28, 1982, as an appropriate circumstance. The
letter also gave the 10-day notice of cancellation of the
current collective-bargaining agreement because of the
pension plan considerations. At the February 25, 1982
bargaining session Respondent Desk reaffirmed its inten-
tion to cancel the collective-bargaining agreement on
February 27, 1982.
On April 20, 1982, Respondent Desk resumed oper-
ations of the Jasper facility with replacement workers.
By mid-August, the Company had achieved the full com-
plement of employees necessary to operate the plant
s As indicated the Company 's ait 24 provided that incentive disputes
may not be arbitrated , but the Union can strike . Seemingly the Company
could change the rate after negotiations However, the Union proposed
that the Company accept its art 41, which precludes changing any rate
new or old without agreement , which would certainly be inconsistent
with the Company 's art. 24.
with approximately 165 employees. During the period
April 20 to August 18, 1982, the Company sent its strik-
ing employees letters informing them that their jobs had
been filled by permanent replacements. It appears that
not all the striking employees were replaced, as some 32
striking employees returned to work before being re-
placed, while certain other employees were never re-
placed.
On May 19, 1982, the Company telegramed the Union
advising that in light of certain recent court decisions in-
dicating that a union's unilateral telegraphic acceptance
of an employer's last offer may be sufficient to create a
contract, the Company wanted to advise that its offer
with respect to noneconomic items was no longer subject
to acceptance in such a manner , and that tentative agree-
ment on all noneconomic items was withdrawn but sub-
ject to possible reinstatement only after 5 days notice in
formal negotiations of the Union' s willingness to accept
the Company's terms.
On Saturday, November 20, 1982, the Union sent the
following telegram to Respondent Desk:
DEAR MR. KREMPP:
YOU ARE HEREWITH NOTIFIED THAT LOCAL 334/236
UFWA AFL-CIO HAS UNCONDITIONALLY TERMINAT-
ED THE STRIKE AGAINST INDIANA DESK COMPANY
AND THAT ALL OF THE STRIKING EMPLOYEES (A
LIST OF WHOSE NAMES WILL BE FURNISHED TO YOU
AT THE DATE AND TIME NEXT SHOWN) WILL BE RE-
PORTING TO THE COMPANY'S OFFICE AT 13TH AND
MILL STREETS, JASPER, INDIANA, MONDAY, NOVEM-
BER 22, 1982, AT 6:30 A.M. READY TO RETURN TO
WORK AND ARE, BY THIS NOTIFICATION TO THE
COMPANY, APPLYING FOR THEIR REINSTATEMENT AS
PER COMPLAINT NUMBER 25-CA-14891, ISSUED NO-
VEMBER 12, 1982, BY WILLIAM T. LITTLE, REGIONAL
DIRECTOR, NATIONAL LABOR RELATIONS BOARD,
REGION 25, FEDERAL OFFICE BUILDING, 575 NORTH
PENNSYLVANIA, ROOM 238, INDIANAPOLIS, INDIANA
46204.
On Monday morning, November 22, 1982, the striking
employees gathered at the Company's premises. Most,
though not all, of the employees signed a sheet of paper
which was passed around the lined up members.
Thereafter Union President Nicholson and Shop Fore-
man-Chairman Fendel went to the Company's offices
and presented General Manager Braun a letter indicating
the same unconditional termination of the strike and that
all the strikers were to return to work as had been set
forth in the telegram. The list of signatures was also
given to Braun. He in turn handed the union representa-
tives a letter dated November 22, 1982, indicating that
the striking employees had been permanently replaced in
an economic strike and would be notified of job openings
in accordance with the law pertaining to economic strik-
ers. By letter dated December 10, 1982, the Union's
counsel informed the Company that if there was any
question regarding the strikers' return to work being un-
conditional, he wanted to make it perfectly clear that the
strikers' offer to return to work was unconditional and
was not conditioned on any changes in the plant.
INDIANA DESK CO.
He continued by indicating that the Union would con-
tinue to seek a fair contract and would pursue all reme-
dies available and that this should not be construed as an
attempt to place conditions upon the strikers' applica-
tions to return to work. Thus, the Union was making it
clear that the employees' offer to return to work was un-
conditional.
Although the Company did not immediately recall the
striking employees, it did recall certain striking employ-
ees as it needed employees. In this regard approximately
30 striking employees were recalled. It appears also that
20 of these striking employees were recalled to their
exact former jobs. Of the 10 remaining recalled employ-
ees, it appears that the striker who had filled that exact
position was first considered but, when that person was
unable or unwilling to fill the position, his position was
offered to the striker having the greatest experience on
that job. Although the Company admits that it did not
recall employees on a seniority basis to fill jobs, it con-
tends that it did what it was required to do under the
law.
C. The Charges and Complaints
On March 26, 1982, in Case 25-CA-14384, the Union
charged that Respondent Desk has engaged in violations
of Section 8(a)(3) and (5) of the Act since about March
1, 1982, in that it discriminated against its employees be-
cause of their support for and membership in the Union
and has refused to bargain in good faith with the Union
by:
1. Unilaterally changing the content and enforce-
ment of work rules.
2. Unilaterally revoking an employee's right to
keep drinking water at his work station.
3. Unilaterally ceasing payment of contributions
to the United Furniture Workers Insurance Fund
and United Furniture Workers Pension Fund A.
4. Unilaterally changing insurance and pension
coverage for employees represented by United Fur-
niture Workers of America.
On May 7, 1982, after an investigation, the Acting Re-
gional Director for Region 25 refused to issue a com-
plaint in a letter and a two-page summary report. With
regard to the bargaining between the parties, the Acting
Regional Director stated:
From December 1981 until March 29, 1982, the
parties engaged in 13 bargaining sessions in an at-
tempt to reach a new collective bargaining agree-
ment. During negotiations, both sides made propos-
als which were subsequently modified. Many agree-
ments were reached. The real area of controversy
precluding an agreement centered around pension
and insurance proposals. The Employer proposed
new benefits and new carriers, while the Charging
Party opposed changing from its own plans to inde-
pendent carriers and questioned the benefits under
the Employer's proposal. Several bargaining ses-
sions dealt almost exclusively with these issues.
Both parties exchanged information regarding their
1433
proposals and advocated their respective positions
but no agreement was reached . Both parties took
firm positions on issues they deemed important, but
at the same time each party remained ready to bar-
gain and was willing to make counterproposals until
the last bargaining session which was held on
March 29, 1982. At the end of this session , the Em-
ployer asked if the Charging Party had any new
offers . The Charging Party said no and the Employ-
er representative of the Respondent said , "Nor, do
we." No new offers have been proposed by the
Union and no new bargaining sessions have been
scheduled or held. At this meeting, the negotiations
broke down because each side remained firm on
their last offer which had already been rejected.
The Employer bargained hard but there was no evi-
dence presented that it bargained in bad faith. The
parties simply reached impasse because neither had
additional counteroffers to make. Upon reaching im-
passe the Employer had the right to implement its
last offer, which it did . Therefore, unilateral imple-
mentation of that last offer was not violative of the
Act.
The matter was appealed and on July 23, 1982, the
Office of Appeals denied the appeal substantially for the
reasons set forth in the Acting Regional Director's letter
of May 7, 1982. In the meantime, on July 16, 1982, the
Union filed an 8(a)(1), (3), and (5) charge (Case 25-CA-
14687) against Respondent Desk alleging as follows:
1. Since on or about May 19, 1982, the Employer
has failed to bargain in good faith with the Charg-
ing Party by failing to make an offer to enter into a
collective bargaining agreement.
2. On a date subsequent to March 29, 1982, the
Employer discharged the following individuals be-
cause of their activities on behalf of, membership in
and support for the Charging Party: Francis
Schepers, Kenneth Morgan, and George Clark.
On September 17, 1982, in Case 25-CA-14687, the Re-
gional Director issued a summary report and letter stat-
ing that he was refusing to issue a complaint on the
8(a)(3) and (5) allegations of the charge. Some of the
8(a)(1) allegations were retained.
This action by the Regional Director was appealed to
the Office of Appeals, Office of the General Counsel.
While this appeal was pending, on September 23, 1982,
the Union filed an 8(a)(1), (3), and (5) charge, Case 25-
CA-14891, alleging that since about March 26, 1982, and
continuing to date, Respondent Desk has refused to bar-
gain in good faith with the Union by:
a. Refusing to meet for reasonable times for pur-
poses of collective bargaining, and,
b. Engaging in surface bargaining.
The charge further alleged that about April 1, 1982,
the Employer imposed a new pension plan which is un-
lawful in that..
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a. It discriminates against employees engaged in
activity protected by the Act, i.e., a lawful strike;
and,
b. It is substantially different from the pension
plan offered by the Employer during collective bar-
gaining.
The Employer unilaterally changed the terms and
conditions of employment by failing to post desig-
nated vacation period 4 months in advance of tenta-
tive date and at least 2 months in advance of a firm
date.
On October 29, 1982, while the charge in Case 25-
CA-14891 was pending in the Region, the Director of
Appeals on behalf of the General Counsel denied the
appeal in Case 25-CA-14687 substantially for the reasons
set forth in the summary report attached to the Region's
dismissal letter of September 17, 1982.
On November 12, 1982, the Region issued a complaint
in Case 25-CA-14891, which was the only pending
charge relating to violations of Section 8(a)(5), all the
other charges having been dismissed and their dismissals
sustained on appeal . In the November 12, 1982 complaint
the General Counsel alleges that Respondent Desk failed
and refused to bargain in good faith with the Union in
that at all times since about March 26, 1982, Respondent
Desk has bargained with a fixed intent to avoid reaching
a collective-bargaining agreement; that since about
March 26, 1982, Respondent Desk has insisted as a con-
dition of reaching agreement that the Union accept cer-
tain onerous, predictably unacceptable changes from the
previous collective-bargaining agreement, including a
provision which would remove the subject of incentive
rates from the coverage of the grievance arbitration pro-
cedure, etc., and a provision which, in the event of a
violation of the no-strike clause proposed by Respondent
Desk, would impose damages on the Union for injury
and damages and would constitute a waiver by the
Union of all legal defenses to the grant of injunctive or
other equitable relief, any Federal or state statute, law,
or legal interpretation to the contrary notwithstanding.
The complaint further alleges that these provisions were
not provisions respecting wages , hours, or terms and
conditions of employment; that since about March 29,
1982, Respondent Desk in furtherance and support of its
demands as outlined above bargained to impasse; that
since about April 1, 1982, Respondent Desk unilaterally
implemented a change in its pension plan for production
and maintenance employees and intracity truckdrivers,
thereby affecting the wages, hours, and terms and condi-
tions of employment; that Respondent Desk engaged in
this conduct notwithstanding the lack of a valid impasse;
and that since about April 1, 1982, Respondent Desk
awarded preference in terms and conditions of employ-
ment only to its employees who did not engage in and
who abandoned the strike as discussed further in the
complaint. The complaint further alleges that the em-
ployees who went on strike on March 29, 1982, went on
strike because of these unfair labor practices and that the
strike was prolonged by Respondent Desk's unfair labor
practices as set forth above.
On December 2, 1982, the Regional Director issued an
order consolidating cases, consolidated complaint, and
notice of hearing, which consolidated the complaints in
Cases 25-CA-14513 and 25-CA-14687 with the com-
plaint in Case 25-CA-14891, which had issued on No-
vember 12, 1982. The consolidated complaint adds addi-
tional violations of Section 8(a)(1) of the Act.9
On December 9, 1982, following the issuance of the
complaint as set forth above, the Union filed a motion
with the General Counsel, requesting that the General
Counsel reconsider his prior decisions in which he af-
firmed the decisions of the Region in refusing to issue
complaints in the cases as set forth above. In support of
its motion for reconsideration, the Union stated:
The issuance of complaints on November 12 and
December 2, 1982, against the Employer in Cases
Nos. 25-CA-14513, 14687 and 14891 and the allega-
tions therein establish a new legal context which re-
quires re-examination of the dismissed charges and
the issuance of a complaint or complaints thereon.
On September 30, 1983, the General Counsel granted
the Union's motion for reconsideration in all relevant re-
spects, reinstated the previously dismissed charges, and
authorized the issuance of additional complaints, which
in part form the basis of this proceeding.
Respondent Desk filed a Motion for Summary Judg-
ment, objecting to the actions of the General Counsel in
reviving the dismissed charges based on a motion for re-
consideration which was untimely filed because it was
not predicated on newly discovered evidence and there-
fore the General Counsel failed to comply with the
Board's Rules and Regulations, specifically Section
102.19(c).'°
Respondent Desk made it clear in its several memoran-
da filed in support of its Motion for Summary Judgment
that it was not questioning the General Counsel's author-
ity to revive dismissed charges, even those that are
barred by Section 10(b), when the motion for reconsider-
ation is in accordance with the Board's Rules and Regu-
lations.
9 In Case 25-CA-14513 the Union had submitted evidence that the
Employer sent notices to the striking employees that they had been per-
'manently replaced . The Union argued that the Employer was discrimi-
nating against these employees because they were unfair labor practice
strikers . At that time the Region considered the strikers to be economic
strikers subject to replacement and dismissed that portion of the charge
on July 15, 1982 A subsequent appeal in that matter was also dismissed
10 Sec 102 19(c) provides.
(c) The general counsel may sustain the regional director 's refusal
to issue or reissue a complaint , stating the grounds of his affirmance,
or may direct the regional director to take further action , the general
counsel's decision shall be served on all the parties . A motion for re-
consideration of the decision must be filed within 10 days of service
of the decision , except as hereinafter provided , and shall state with
particularity the error requiring reconsideration . A motion for recon-
sideration based upon newly discovered evidence which has become
available only since the decision on appeal shall be filed promptly on
discovery of such evidence. Motions for reconsideration of a deci-
sion previously reconsidered will not be entertained, except in unusu-
al situations where the moving party can establish that new evidence
has been discovered which could not have been discovered by dili-
gent inquiry prior to the first reconsideration
INDIANA DESK CO.
On January 12, 1984, I issued an Order granting Re-
spondent Desk's Motion for Partial Summary Judgment
because the motion for reconsideration did not allege,
and was not predicated on, newly discovered evidence,
dismissing the charges in Cases 25-CA-14384 and 25-
CA-14687 and that portion of the consolidated com-
plaint that was based on these charges.
Pursuant to a motion for clarification on January 27,
1984, I issued a further Order indicating that I intended
to totally dismiss the charges in Cases 25--CA-14384 and
25-CA-14687 to the extent that they were dismissed and
that dismissal was sustained on appeal. However, I indi-
cated that the September 23, 1982 charge could raise any
violation back for 6 months even though that same mate-
rial may have been raised and considered by the earlier
dismissed charges.
Both parties took special appeals to the Board from
these Orders but the Board let the orders stand."
D. The Alleged 8(a)(1) Violations
During the first 2 weeks of the strike which began on
March 29, 1982, Respondent Desk employed Pinkerton
guards to protect its property. In this regard there were
two guards on each shift who sat in a car on the Compa-
ny's property near the lumber stacks and made hourly
patrols on foot around the perimeter of the plant in
Jasper, Indiana. On April 16, 1982, the Pinkerton guards
were replaced by guards employed by Respondent CIB.
The consolidated complaint alleges that between the
period April 1982 and November 1982 Respondent Desk
and its agent Respondent CIS engaged in various acts
and conduct violative of Section 8(a)(1) of the Act. In
fact, the complaint alleges approximately 54 separate vio-
lations of Section 8(a)(1), many of which are cumulative.
Although the Respondents denied the commission of any
unfair labor practices, they did not offer any witnesses to
refute or contradict any of the testimony relating to the
8(a)(1) conduct of the General Counsel's witnesses. In
fact, in its brief Respondent Desk makes no attempt to
defend against the 8(a)(1) allegations.
On March 31 or April 1, 1982, near midnight, Desk
Supervisor Kern Quackenbush suddenly and without sig-
naling or warning turned his vehicle into an entrance to
Respondent Desk's property located off 13th Street,
striking employee Joe Applegate with the front end of
his car, knocking Applegate 6 to 10 feet into the plant
property from where he had been picketing on 13th
Street. Quackenbush did not bother to stop his car after
striking Applegate. He drove onto company property,
parked his car, and went inside the brick building. Ap-
plegate suffered bruises to his leg as a result of this con-
duct. This conduct certainly interfered with the strikers'
1 In view of the Board's recent decision in Ducane Heating Corp, 273
NLRB 1389 (1985), holding that it will no longer allow the reinstatement
of dismissed charges beyond the 6-month limitation of Sec. 10(b), absent
special circumstances involving fraudulent and concealment of informa-
tion by a respondent, it is my conclusion that the charge filed in Case 25-
CA-14384 on March 26, 1982, and the charge filed in Case 25-CA-14687
on July 16, 1982, are extinguished by the operation of Sec 102 19(c) of
the Board 's Rules and Regulations and are time -barred by Sec. 10(b) of
the Act.
1435
right to engage in picketing, and I find that Respondent
Desk violated Section 8(a)(1) in this regard.
On April 16, 1982, Respondent CIB's president Ron
Jones and a complement of security guards arrived at
Respondent Desk's plant about noon. They arrived in a
caravan of about 10 to 12 vehicles; approximately 30
men and 8 Doberman pinscher and German shepherd
dogs pulled onto Respondent Desk's property and began
unloading their equipment and setting up their oper-
ations. The trailer, which was later used as CIB's Jasper
headquarters, was moved into place and the guards car-
ried their weapons (shotguns or rifles) from the cars to
the trailer. Other weapons were distributed to the guards
or placed in vehicles. Two of the guards displayed their
skills with a martial arts weapon, known as a nunchaku,
which consisted of two pieces of wood joined by a metal
chain. Other guards demonstrated their martial arts skills
by kicking at the walls of the facility and breaking
boards with their hands, The dogs were unloaded from
the vehicles on leashes and were allowed to lunge at
each other and to attack guards wearing protective
sleeves. The guards started taking up their posts at the
various locations on plant property and surrounding
streets and the dogs were tied amidst the lumber stacks
on the property. Most guards appeared to be wearing
handguns. As the CIB guards were getting set up, Nor-
bert Kreilein, Respondent Desk's production and person-
nel manager, and Amos Braun, Respondent Desk's gen-
eral manager, were present.
I find that the manner of the CIB's arrival at the plant,
the display of weapons, the attack dogs, and the martial
arts performances were designed to intimidate the strik-
ing employees and were violative of Section 8(a)(1) of
the Act. As this performance was done in the presence
of the general manager and personnel manager of Re-
spondent Desk, there is no doubt that Respondent Desk
condoned the performance.12
In the last week of April or the first week of May
1982, three CIB guards were riding in a black van pulled
alongside the vehicle of striking employee Oscar
Worman and tried to force his vehicle off the road, at
the same time pointing a pistol and a camera out the
window toward Worman. This type of conduct certainly
threatens, restrains, and coerces employees in the exer-
cise of their rights under Section 7 of the Act, and is
therefore violative of Section 8(a)(1) of the Act.
On June 20, 1982, CIB Supervisor Phillip Beyer and
CIB guard Penman confronted striking employee Ernie
Dedrick at the 12th Street picket line and in the presence
of other pickets, including Dedrick's teenage daughter,
Penman told Dedrick he ought to kill him, and Beyer
stated, "[J]ust wait, your time is coming, we'll get you."
At this point Penman drove away in his car, stopped a
few feet from the pickets, and told Dedrick, "[Y]ou'd
better be watching, we'll get you if it takes till the end of
12 Additionally, it is clear that Respondent CIB is an agent of Re-
spondent Desk and that Respondent Desk is responsible for the violation
committed by Respondent CIB, its supervisors , and employees , and I so
find.
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike." This conduct clearly violates Section 8(a)(1)
of the Act, and I so find.13
In mid-July 1982, about 8 a.m. at the 12th Street en-
trance to the picketed facility, at a time when the re-
placement workers had arrived at the plant, when no ve-
hicles were attempting to enter the plant, and when em-
ployees Roger Ingle , Larry Mehringer, and Gene Gehl-
hausen were picketing, CIB guard Derwood Jacobs
came off company property, stepped in front of Ingle, el-
bowed him, and shoved him backwards calling him
"chicken sh- s- of a b-," and dared Ingle to hit him.
When Gene Gehlhausen protested to Jacobs that he had
no right to elbow people as the pickets were not causing
any trouble and were walking a legal picket line, Jacobs
gave Gehlhausen a hard shove with his stomach. He
then pushed Gehlhausen up 12th Street towards Mills
Street using his stomach to shove Gehlhausen roughly 20
feet, while Gehlhausen unsuccessfully tried to step
around him. Supervising CIB guard Beyer, who was
standing nearby with a video camera and apparently
ready to photograph this scene, told Jacobs to stop and
the incident ended. This conduct is clearly violative of
Section 8(a)(1), and I so find.
On August 18, 1982, around 7 a.m., after the replace-
ment workers had already entered the plant, Gene Gehl-
hausen was at the 12th Street entrance picket line in the
course of making his rounds as picket captain. During a
discussion of the relative merits of the strike, CIB Super-
visor Beyer came off company property, pushed Gehl-
hausen out into the street, and kept shoving him for ap-
proximately 50 feet. When Beyer went back towards the
12th Street entrance Gehlhausen walked around the
plant to Mills Street where he saw strikers near the front
office door. At about this point Beyer came up behind
Gehlhausen and shoved him with his hand out into the
street. Superintendent Kreilein and a city policeman
were present and Gehlhausen asked if they were going
to let the guards shove them around like that in front of
oncoming cars, to which Beyer responded, "[Y]ou're just
scum anyway, you don't have a right to live." Kreilein,
who was standing nearby, laughed and continued talking
to a policeman and ignored Gehlhausen. Although this
incident was not specifically alleged as a violation, it was
thoroughly litigated and is similar to other incidents of
physical assaults, and shows Respondent Desk's condo-
nation and ratification of the CIB guard's misconduct.
Therefore I find that this conduct violates Section 8(a)(1)
of the Act.
13 It appears that during the course of the picketing when vehicles car-
rying nonstriking employees or replacement workers were attempting to
enter or leave the premises pickets would patrol in front of these vehicles
preventing them from entering or leaving the premises . It appears from
the testimony that all of the pickets would insist on walking in front of
each vehicle before it could enter Thus, obviously this created a backup
either on the street or in the plant Much of the confrontation between
the pickets and the guards occurred at these times when the guards were
physically trying to push the pickets out of the way in an attempt to
permit the vehicles to enter or leave the plant To the extent that the tes-
timony in this record reflects that the guards were merely pushing or
shoving pickets out of the way so the vehicles could come in or out of
the plant, I do not regard this conduct violative of Sec 8(a)(1) of the
Act. See Excavation-Construction, Inc., 248 NLRB 649 at 665. (1980)
On June 30, 1982, at the 12th Street entrance to the
plant striking employee Ed Beck was attempting to pho-
tograph CIB Supervisor Beyer, who was transferring a
rifle from his car to the trailer on the plant property.
Beck was seated on a ledge of a building wall located
across from the 12th Street entrance to the plant. Beyer
got into his car, which was parked alongside the trailer,
and drove it straight at Beck stopping within several
inches of Beck's body. Beyer made some remarks about
taking his picture and laughed, backed up, and drove off.
This type of conduct is clearly violative of Section
8(a)(1) of the Act, and I so find.
In early May 1982, striking employees Russ McCraney
and Art Smith were picketing at the carpool area14 at a
time when all replacement workers had left for the day.
CIB guards Perman, Bill White, and Supervisor Beyer
were standing nearby and Pernian said, "You guys might
was well just give it up, `cause you guys lost this thing.
You guys might as well just go look for another job
somewhere else, cause this is all over with." When Beyer
left the group in his blue pickup truck he swerved right
at employee McCraney, who had to push away from the
vehicle to avoid being hit. Beyer stated that the next
time he would run over his "ass." This conduct clearly
violates Section 8(a)(1), and I so find.
Subsequent to this incident, during the summer of
1982, another incident occurred between Beyer and
McCraney in which Beyer drove his truck or car, at the
entrance at 12th Street, to a point where he pinned
McCraney's foot against the curb and thereby injured his
foot. This conduct clearly is violative of Section 8(a)(1)
of the Act, and I so find. Several witnesses called by the
General Counsel testified to incidents where the striking
employees were almost hit by vehicles driven by the
guards, who swerved the vehicles very close to the pick-
eting employees and then laughed. This type of conduct
clearly is violative of Section 8(a)(1) of the Act, and I so
find.
On June 1, 1982, around 11:30 p.m., Joe Applegate
was making his rounds as picket captain when CIB Su-
pervisors Ron Jones and Beyer drove up in a blue
Datsun 2802 and stopped alongside Applegate. Jones
picked up a sawed-off shotgun from his lap, pointed it at
Applegate, and said if he made any wrong moves Jones
would blow him away. This conduct is clearly violative
of Section 8(a)(1) of the Act, and I so find.
On June 30, 1982, picketing employee Steve Hawkins
was at the 12th Street entrance with other pickets while
replacement workers were arriving for work. Hawkins
and a replacement worker named McCoy were arguing
and CIB Supervisor Beyer commented that they ought
to take Hawkins into the street and beat the "s- out of
him." Then CIB guard Danny Morgan shoved Hawkins
into the street and told Hawkins he wanted Hawkins to
take a swing at him so he could tear Hawkins' head off.
At this point CIB Supervisor Beyer and Guard Derwood
Jacobs joined them in the street and with Morgan encir-
14 The carpool area was used by Respondent Desk as a parking area
for replacement workers from approximately April 20, 1982, when re-
placement workers first began working until about a month or two later
when replacement workers started parking on the plant premises.
INDIANA DESK CO.
cling Hawkins they pushed Hawkins around until an-
other picket yelled for help from a policeman parked
nearby.
This conduct clearly occurred at a time when the
pickets were not preventing replacement workers or
their vehicles from entering or leaving the premises. This
was merely an argument between a replacement worker
and a striker when the guards interceded and engaged in
the conduct above. This conduct was clearly uncalled
for, and was an unlawful physical attack on Hawkins'
person clearly violative of Section 8(a)(1) of the Act, and
I so find.
In late July 1982, Union Representative Randy Har-
rington visited the 12th Street picket line around i 1 p.m.,
bringing kool-aid to the pickets. On their arrival CIB Su-
pervisor Beyer yelled out derogatory remarks comparing
Harrington to the Reverend Jim Jones incident in Africa.
Harrington told Beyer to shut up, at which point Beyer
took off the gun he was wearing, laid it on a number
stack, and went across the street to where Harrington
and other pickets were standing. Beyer began shoving
Harrington with his hands, and he used his chest like a
battering ram to charge at Harrington. Beyer attempted
to provoke Harrington into a fight but Harrington re-
fused. This conduct clearly demonstrates that the CIB
guards were on the premises to demoralize, harass, and
intimidate the strikers and to discourage their further
picketing on behalf of the Union. As such it clearly was
violative of Section 8(a)(1) of the Act.
E. The Alleged Surveillance by the CIB Guards
The record reflects that during the early part of the
strike and at least until about November 1982 Union
Representative Randy Harrington stayed in a room at
the Jasper Holiday Inn. During the early part of the
strike the record reflects that the CIB guards would sta-
tion themselves at an elevated vantage point on the
premises of another establishment located near the Holi-
day Inn. From this point the CIB guards sitting in a ve-
hicle would be able to observe the Holiday Inn parking
lot where the union representatives parked their vehicles,
and they could observe the outer entrance to the hotel
room occupied by Harrington. Also the CIB guards
were observed in and around the Holiday Inn late at
night and at least on one occasion Ron Jones, the owner
of CIB, was spotted standing in front of Harrington's
room window. From the testimony in the record I find
that Respondent CIB engaged in surveillance of the
union representatives by their presence near the Holiday
Inn and at the very least gave the impression to the
union representatives and striking employees that their
activities were under surveillance.
The record is replete with testimony of the striking
employees concerning CIB guards in vehicles following
them from the plant and on the highways leading from
Jasper near their homes, and vehicles driven by guards in
and around the city of Jasper. Although I agree that
some of these incidents constituted surveillance, or at
least gave the impression of surveillance to the employ-
ees, only those specific incidents discussed hereinafter do
I find to be violative of Section 8(a)(1) of the Act.
1437
Striker Don West credibly testified that on April 19,
20, and 21, 1982, he was followed from Jasper to his
trailer in Huntingburg, Indiana, which is approximately
10 miles from the picketed plant. Each time it was the
same guard that followed West to his trailer. West credi-
bly testified that on one of these occasions the guard
parked in a city park near the trailer, and West ap-
proached the guard on foot. The CIB guard admitted to
keeping West's trailer under surveillance. This clearly is
conduct violative of Section 8(a)(1) of the Act.
On two occasions the CIB guards engaged in surveil-
lance of the home of striking employee James Wilcox.
The first incident occurred early in the strike when a ve-
hicle, which Mrs. Wilcox recognized as one that was
usually parked next to the CIB trailer on the Indiana
Desk property, was parked near her home with three
CIB guards in it whom she recognized. There was a
large dog in the vehicle and it remained nearby for 10
minutes while Mrs. Wilcox hung laundry in her yard.
The second occurrence was around dusk one evening
during the same time frame when a vehicle, also recog-
nized by Mr. and Mrs. Wilcox as being one of those used
by the CIB guards, stopped near their house and re-
mained 5 to 10 minutes, pulling off just after the Wil-
coxes came out of the house. The fact that Ron Jones at
the carpool picket line told Wilcox, "[W]e know where
you live," and when Wilcox replied, "I know you do,
I've seen you there," Jones responded that "you have to
expect harassment if you are going to be a picket" clear-
ly demonstrates that Ron Jones was aware of the surveil-
lance by the guards in his employment. This conduct
clearly constitutes unlawful surveillance and creation of
the impression of surveillance among Respondent Desk's
employees and is violative of Section 8(a)(1) of the Act.
Wendell Satterfield testified that in late May 1982, he
noticed a blue chevy citation driven by a CIB guard stop
for approximately 1 minute in front of his house, which
is located out in the country about 16 miles from Jasper.
Although suspicious, I do not regard this incident as
constituting surveillance.
On April 21, 1982, about midnight, picketing employee
Mike Chrismas was driving from the plant to his home in
Ferdinand, Indiana, approximately 15 miles from Jasper,
when he realized he was being followed by a CIB guard,
so Chrismas drove between 90 and 100 miles per hour
but could not lose the CIB vehicle. When he arrived at
home, the car drove by very slowly, turned around,
almost came to a stop in front of his house, and then
drove off. This incident of alleged surveillance was not
covered by the complaint, but it was fully litigated at the
hearing and in my view clearly establishes the fact that
the CIB guards did engage in surveillance of the activi-
ties of the striking employees, or at the very least gave
the impression that their activities were under surveil-
lance, and therefore was violative of Section 8(a)(1) of
the Act.
On the outskirts of Jasper there is a restaurant called
Jerry's where both the picketing employees and the CIB
guards would have their breakfast, lunch, and dinner,
and where the guards as well as the pickets would go on
their break periods. On several instances the CIB guards
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at Jerry's restaurant gave the impression to the picketing
employees that their activities were under surveillance
when they would motion and watch the employees and
talk on their radios. At least on one occasion the CIB
guards shined their spotlight into the restaurant where
the strikers were sitting . This conduct in my view clearly
gave the impression to the striking employees that their
activities were under surveillance , and was violative of
Section 8(a)(l) of the Act.
The complaint alleges additional incidents of surveil-
lance and there was testimony by the striking employees
concerning vehicles with CIB guards appearing behind
them near the plant, at points on the road , and at places
within close proximity to their homes . However , in these
instances , it appears to me that for the most part these
happenings were pure happenstance and circumstantial,
and I would be hard pressed to conclude that these fol-
lowings were deliberate in an attempt to demonstrate to
the employees that their activities were under surveil-
lance. While not free from doubt I do not find these inci-
dents unlawful.
F. The 8(a)(5) Allegations
Paragraph 8, subparagraphs (a), (b), and (c), of the
consolidated complaint which issued on August 16, 1984,
alleges that Respondent Desk has failed and refused to
bargain in good faith with the Union since about Decem-
ber 4, 1981,15 in that it has bargained with a fixed intent
to avoid reaching a collective-bargaining agreement and
has insisted as a condition of reaching agreement that the
Union accept certain onerous , predictably unacceptable
changes from the previous collective-bargaining agree-
ment including:
(i) A provision which would remove the subject
of incentive rates from the coverage of the griev-
ance arbitration procedure, severely limit the right
of the Union to strike over incentive rates, and
thereby affectively insure Respondent Desk unilat-
eral control of rates of pay and deny the Union the
right to bargain over such rates.
(ii) A provision which in the event of a violation
of the no-strike clause proposed by Respondent
Desk would impose damages on the Union for
injury and damages and would constitute a waiver
by the Union of all legal defenses to the grant of in-
junctive or "other equitable relief . . . any federal
or state statute , law, or legal interpretation to the
contrary notwithstanding."
Additionally the complaint alleges in subparagraph (d)
that the last provision mentioned is not a mandatory sub-
ject of bargaining and that Respondent Desk's insistence
to the point of impasse also constitutes a refusal to bar-
gain.
These allegations deal with the Company' s proposals
on (1) incentive pay, and (2) the Company' s proposed
no-strike clause ; both are alleged to be predictably unac-
15 in view of my Order on the Motion for Summary Judgment, March
23, 1982, is the 10(b) date
ceptable and at least the no-strike clause is alleged to be
a nonmandatory subject of bargaining.
These two proposals were made by the Company on
January 5, 1982, in response to the Union 's proposals
which had been submitted to the Company on December
4, 1981.
The two prior collective -bargaining agreements be-
tween the parties , the one which expired on January 9,
1979 (the 1976 contract), and the one with an expiration
date of January 9, 1982 (the 1979 contract), provided in
article 41 that all piecework rates shall be set by agree-
ment between the Union and the Company. Additionally,
the 1976 contract, in article 45, provided that any differ-
ence or dispute between the parties over any such rate
shall be adjusted by collective bargaining and may not be
submitted to arbitration for final and binding determina-
tion . In the 1979 contract the parties deleted this provi-
sion relating to arbitration, thus making the setting of in-
centive rates subject to the grievance -arbitration provi-
sions of the collective-bargaining, agreement . In its pro-
posals which it submitted on December 4, 1981, the
Union left article 45 intact, except that it changed the
percentages from 50 percent to 75 percent , and added
that inspectors and loaders may exceed the hourly rate
by 100 percent.
Additionally, in article 65 dealing with strikes and
lockouts, the Union proposed that there be no strike or
lockouts provided . However, this restriction shall not
apply when and if wage reopening negotiations occur on
the wage issue, or when , in the opinion of the Union, the
Company is not negotiating grievance settlements in
good faith or paying arbitration awards. Thus, the Union
initially made changes in the incentive rates percentages,
and first asked for the right to strike where, in the opin-
ion of the Union, the Company is not negotiating griev-
ance settlements in good faith or paying arbitration
awards , which necessarily covered the setting of incen-
tive rates.
It was following these proposals that the Company
submitted its proposals which the Region now concludes
and argues were predictably unacceptable and from their
inception established Respondent Desk's intent to not
reach an agreement , thus making Respondent Desk
guilty of bargaining in bad faith.
The first proposal would be in article 24, the last para-
graph of step 4 of the grievance procedure , and reads as
follows:
Any dispute regarding the establishment or modifi-
cation of incentive rates shall not be subject to arbi-
tration, but the Union shall have the right within
ten (10) working days after the Company's negative
response in Step 3 and after forty-eight (48) hours
actual notice to the Company, to take lawful eco-
nomic strike action in support of its position in that
dispute. In the event of union economic action as
provided in the preceding sentence , the Company
shall retain all its rights, including the right to per-
manently replace striking employees.
In addition , Respondent Desk proposed in article 65,
the clause dealing with strikes and lockouts language ex-
INDIANA DESK CO.
empting paragraph 24 regarding disputes over incentive
rates, a broad no-strike and no-lockout provision which
provided as follows:
Paragraph 65:
Except in strict conformity with the provisions of
Paragraph 24 regarding disputes over incentive
rates, the Union agrees that there shall be no picket-
ing, boycotts, sympathy strikes, sitdown, walkout,
slowdown, or strikes of any kind or degree whatso-
ever, or any other interference with the Employer's
business of any nature for any reason whatsoever.
If any employee, or group of employees, repre-
sented by the Union in this unit, shall violate the
intent of this section, the Union shall take immedi-
ate affirmative action to prevent such illegal acts
and take all necessary steps to the end that work
will be properly and orderly resumed. The Union,
in such case, will within six hours notify the Com-
pany and such employee, or employees, in writing,
of its disapproval of such violation. Violation of the
provisions of this Article shall be grounds for disci-
plinary action or discharge without recourse to the
grievance procedure by either the Union or the em-
ployees.
It is understood and agreed, without in any way
limiting the generality of the first section of this Ar-
ticle, that any refusal on the part of any employee
to cross any picket line at any place, when it is nec-
essary to cross such picket line in the performance
of his duties, as the Company in its sole discretion
shall direct, shall be a work stoppage or slowdown
in violation of this Article and this Agreement.
It is further understood and agreed, without in
any way limiting the generality of the foregoing,
that any refusal by any employee to perform his
duties because such duties, as the Company in its
sole discretion shall provide, require him to handle
or be connected with the handling, loading or un-
loading of goods being transported to or from any
operation wherein the employees are on strike or
are involved in any type of work stoppage, such
cargo being generally referred to as "hot cargo," or
any other refusal to perform said duties in order to
support any other Union activity, shall be consid-
ered a work stoppage or slowdown in violation of
this Article and this Agreement.
In the event of any violation of any provision of
this Article, the Company shall have such rights
and recourse as the law may provide, and the
Union shall be subject to such liability as the law
may provide, including liability for any and all
injury or damage which may result from such viola-
tions. No employee engaged in conduct violative of
this Article shall accrue rights, be eligible for pay-
ments under, or participate in any benefit programs
under this contract. It is further expressly under-
stood and agreed, without limiting the generality of
the foregoing, should any action in violaion of the
intent of this Article occur during the life of this
Agreement, the Company may seek injunctive or
1439
other appropriate or equitable relief in a court of
competent jurisdiction, and it is hereby also express-
ly agreed that such court of competent jurisdiction
shall be vested with, and have full legal authority
and jurisdiction to grant and order appropriate in-
junctive or other equitable relief to bring an imme-
diate end to any such conduct in violation of this
Article, any federal or state statute, law, or legal in-
terpretation to the contrary notwithstanding.
The Company agrees that it will not cause a vol-
untary complete cessation of operations of the Com-
pany to support the Company's bargaining position,
commonly called "lockout," so as to prevent em-
ployees from working. Temporary or permanent
shutdowns by the Company for economic or other
reasons shall not be considered lockouts.
As can easily be ascertained, incentive rates were of
great concern to both parties because this necessarily de-
termined the amount of wages employees received.
Prior to 1979, incentive rates were set by agreement of
the parties and were not subject to the arbitration provi-
sions of the collective-bargaining agreement. In 1979 for
the first time the provisions exempting incentive rates
from the arbitration and grievance procedure of the con-
tract was eliminated.' 6 This did not make matters any
better but, on the contrary, created more of a problem
between the parties and certainly was not to the liking of
either the Union or Respondent Desk. Thus, it appears
that if the Company set a tentative rate which was not
agreed to, it had the choice of paying that rate and being
subject to backpay in the long run or paying the "aver-
age" rate as it normally did until the rate dispute was re-
solved, either through agreement or through arbitration.
This was not satisfactory to Respondent Desk because
when an employee is on "average pay" he is being paid
on a piece rate basis, but is not, on the other hand, obli-
gated to produce any particular amount of goods to earn
the average pay.
As I have indicated earlier, Respondent Desk informed
the Union that it might be willing to give it the right to
strike; however, before Respondent Desk made its pro-
posals the Union withdrew its proposal giving it the
right to strike over incentive rates.
Desk's proposal of January 5, 1982, left intact articles
41, 42, 43, 44, and 45 as they existed under the 1979 con-
tract. However, it added a new paragraph to article 24
providing that disputes regarding the establishment or
modification of incentive rates shall not be subject to ar-
bitration, and gave the Union the right to strike.
There is nothing in this proposed article which states
that if the Union did not exercise its right to strike it for-
feited the grievance. At least as I see it, at this point if
the Union did not exercise the right to strike it was in no
worse position than it was under the 1976 contract.
Under that contract the parties provided for collective
is The Union and the General Counsel contend that the Company pro-
posed the provision making incentive rates subject to the grievance and
arbitration procedure. However, it seems that the Company granted this
clause to the Union as a concession, at least it appears that way from the
notes presented in evidence by George Rothman.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bargaining on incentive rates, but there was no arbitra-
tion or right to strike. This appears to be the same posi-
tion that the Union would be in under Respondent
Desk's proposal, except that it did have the right to
strike if it exercised that right within 10 days. Because
the Union failed to exercise that right within 10 days the
right no longer existed. It did not provide that the griev-
ance was forfeited. Moreover, as I understand the testi-
mony in this proceeding the Union was perfectly willing
to resort to the old 1976 contract, providing that no new
rate is set or old rate changed without agreement, and
that "average pay" is paid until agreement is reached.
Under the circumstances of this case I cannot agree
that the Company's proposal, as offered, was one that
was predictably unacceptable and a per se violation of
the Act. A reversion to an old contract provision may be
hard bargaining and regression but it does not make it a
per se violation.
While the right to strike may not be a very effective
economic weapon to the Union at the present time be-
cause its strike was not effective against this employer, it
does not make the offer a predictably unacceptable term.
Accordingly, I shall recommend that the complaint be
dismissed as to this allegation.17
Additionally, the complaint alleges that the no-strike
clause proposed by Respondent Desk was also predict-
ably unacceptable and therefore a per se violation of the
Act in that "it would impose damages on the Union for
injury and damages" and would constitute a waiver by
the Union of all legal defenses to the grant of injunctive
or "other equitable relief . . . any Federal or state stat-
ute, law, or legal interpretation to the contrary notwith-
standing."
For some time the courts and the Board have been re-
jecting simple no-strike and no-lockout clauses, without
more, as being inapplicable in certain strike or lockout
situations. Thus, it appears that more explicit language is
required. As the Board stated in Keller-Crescent Co., 217
NLRB 685, 687 (1975), the statutory right to honor
picket lines "exists unfettered and undiminished in the
absence of some explicit language contained in the con-
tract unmistakably waiving or in some manner limiting it,
or language, warranting resort to consideration of collat-
eral evidence of contractual intent, which evidence clear-
ly and unequivocally establishes that the union under-
stood and intended said language to waive or limit the
statutory right, despite the lack of the reduction of this
intent into clear and expressed language in the contract."
It would appear then that Respondent Desk was trying
to conform with current law and was being specific in
the fact that the Union was giving up its right to strike.
Moreover, in the instant case the Union had expressed a
clear and unequivocal desire to strike during the contract
term. This was clearly set forth in the Union's December
4, 1981 contract proposals. In this context, certainly a
17 I do not regard Kayser-Roth Hosiery Co, 176 NLRB 999 (1969), as
being controlling in this matter . In that case the Union did not propose
initially that it have a right to strike for any matters but in fact proposed
a no-strike no-lockout clause Secondly the clause proposed by the em-
ployer provided that in the event the Union did not exercise the limited
right to strike its grievance or complaint would be forfeited . This does
not appear to be the fact in the present case.
specific detailed no-strike, no-lockout clause was appro-
priate. Moreover, there is very little evidence in this
record to indicate that the Union ever raised any objec-
tion to this contract proposal, and there is nothing in the
charges filed in May, July, or September 1982 which in
any way raises any objection to this contract provision.
The contract further provides that in the event of a
violation of the article, the Company shall have such
rights and recourse as the law may provide and the
Union shall be subject to such liability as the law may
provide, including liability for any and all injury or
damage from such violations. This appears to me to be
nothing but a perfectly harmless clause setting forth the
rights and liabilities of the parties and, either alone or in
conjunction with a concededly mandatory object, could
not be treated as a factor of impasse in any negotiations.
See Radiator Specialty Co. v. NLRB, 336 F.2d 495 (4th
Cir. 1964).
Additionally, the injunctive jurisdictional waiver was
discussed in a somewhat similar case by the United
States Court of Appeals for the District of Columbia in
Electrical Workers UE v. NLRB, 409 F.2d 150 at 154-155
(D.C. Cir. 1969), wherein it concluded that such propos-
als are components of the no-strike proposals and as such
are mandatory subjects of bargaining.
In the circumstances of this case, there is nothing in
this proposed no-strike, no-lockout provision that I view
as being predictably unacceptable, and therefore a per se
violation of the Act. Accordingly I shall recommend
that paragraphs 8(a), (b), and (c)(i) and (ii) of the com-
plaint be dismissed in their entirety.
Paragraph 8(d) of the complaint alleges that the provi-
sion described above in paragraph 8(c)(ii) is not a provi-
sion respecting wages, hours, or other terms and condi-
tions of employment, and paragraph 8(e) specifies that
about March 29, 1982, in furtherance and support of this
demand Respondent Desk bargained to impasse.
There is no doubt, and I agree with the complaint and
with the contentions of Respondent Desk, that the par-
ties did bargain to impasse on March 29, 1982. However,
I disagree with the General Counsel that such an impasse
was brought about by insistance on nonmandatory sub-
jects of bargaining. In any event, even if it be found that
article 65 contained certain provisions which could be
construed as nonmandatory subjects of bargaining, such
as the liability and the jurisdictional waiver provisions, in
my view the record evidence is insufficient to establish
that the impasse was brought about by any hangup on
these provisions. Accordingly, it is my recommendation
that paragraphs 8(d) and (e) of the complaint be dis-
missed in their entirety.
Paragraph 8(f) of the complaint alleges that about
April 1, 1982, Respondent Desk unilaterally implemented
its pension plan and its insurance plan; paragraph 8(g)
specifies that Respondent Desk did this notwithstanding
the lack of a valid impasse, and that it implemented a
pension plan which differed in certain respects from the
pension plan contained in its previous offers to the
Union.
To the extent that paragraphs 8(f) and (g) are predicat-
ed on the proposition that Respondent Desk bargained to
INDIANA DESK CO. 1441
impasse on nonmandatory subjects of bargaining and that
there was no valid impasse , I shall recommend that para-
graphs 8(f) and (g) be dismissed for the reasons set forth
above.
I will now consider that part of paragraph 8(g) which
alleges that Respondent Desk implemented a different
pension plan.
For many years the Union had administered its own
pension and insurance plans. Because of dissatisfaction
with these plans, the Company proposed to set up its
own pension plan and insurance plan.
General Counsel's Exhibit 68 contains the language of
the pension plan which was proposed by Respondent
Desk during the bargaining. The several provisions con-
tained in the proposed language which the General
Counsel contends were changed in the implemented plan
are as follows:
PROPOSED LANGUAGE
Section 2.11(a) Past Credited Service If the
Member was employed by the Employer on Febru-
ary 27, 1982 and is actively employed by the Em-
ployer for ninety (90) or more full consecutive cal-
endar days commencing on or after the Effective
Date, he shall receive credit for past Credited Serv-
ice. Past Credited Service means the total number
of yeas and completed months of employment with
the Employer prior to January 1, 1982 rounded up
to the next high tenth (1/10th) of a year.
Section 2.11(d) Notwithstanding the above, if the
Member was covered under the Prior Plan as of
February 27, 1982, in no event shall such Member's
Credited Service as of February 28, 1982 be less
than his credit as defined in the Prior Plan.
Section 3.01 Initial Eligibility Each employee who
was a member of the Prior Plan on February 27,
1982, shall become a Member of this Plan as of the
Effective Date, without further action on his part.
Each other Employee shall become a Member of
the plan on any Participation Date (Commencing
with July 1, 1982) coincident with or next following
after the date the employee has been an active Em-
ployee for at least ninety (90) consecutive calendar
days. Each Employee will be given a summary of
the Plan when he becomes a Member.
IMPLEMENTED LANGUAGEis
Section 2. 11(a) Past Credited Service If the
Member was employed by the Employer on April
1, 1982 and is actively employed by the Employer
for ninety (90) or more full consecutive calendar
days commencing on or after the Effective Date, he
shall receive credit for past Credited Service. Past
Credited Service means the total number of years
and completed months of employment with the Em-
ployer prior to January 1, 1982 rounded up to the
next higher tenth ( 1/10th) of a year.
18 This langauge comes from G C Exh . 75, which appears to be the
language which Respondent Desk implemented
Section 2.11(d) Notwithstanding the above, if the
Member was covered under the Prior Plan as of
February 27, 1982, in no event shall such Member's
Credited Service as of February 28, 1982 be less
than his credit as defined in the Prior Plan.
Section 2.11(e) Notwithstanding the above, if a
Member terminates employment after April 1, 1982
and is subsequently reemployed and again becomes
a member, his Credited Service shall not include
any periods of employment prior to reemployment
if (i) said Member's benefit pursuant to Section 5.01
was zero at date of termination and (ii) the Mem-
ber's consecutive Breaks in Service as of his reem-
ployment date equal or exceed the Member's Cred-
ited Service as of this termination date.
Section 3.01 Initial Eligibility Each Employee
who was a member of the Prior Plan as of February
27, 1982 and who was actively employed by the
Employer on April 1, 1982, shall become a Member
of this Plan on April 1, 1982 without further action
on his part. Each other Employee shall become a
Member of the Plan on any Participation Date
(commencing with July 1, 1982) coincident with or
next following after the date the employee has been
an active Employee for at least ninety (90) consecu-
tive calendar days. Each employee will be given a
summary of the Plan when he becomes a Member.
In the proposed language members who were em-
ployed by Respondent Desk on February 27, 1982, and
actively employed for 90 days commencing from the ef-
fective date shall receive credit for past credited service.
Also employees who were members of the prior plan on
February 27, 1982, shall become members of this plan as
of the effective date without further action on his part.
Thus, under this language all striking employees would
be employees as of February 27, 1982, and would have
to do nothing further under Section 3.01 dealing with eli-
gibility. However, under Section 2.11(a) even those em-
ployees who were employed by the employer on Febru-
ary 27, 1982, which necessarily encompasses the striking
employees, would also have to be actively employed by
the employer for a 90-day period commencing on or
after the effective date of this agreement. Thus it would
appear that all employees striking or otherwise would
have to work for a 90-day period in order to be given
credit for past credited service. The language as imple-
mented, in section 2.11(a), requires that for past credited
service the employee be employed by the employer on
April 1, 1982 (this necessarily covers the striking em-
ployees) and be actively employed by the employer for
90 or more consecutive calendar days commencing on or
after the effective date in order to receive credit for past
credited service. On its face this merely moves the date
from February 27 until April 1, 1982, but still requires
that the employee be actively employed for a 90-day
period, which for all practical purposes is consistent with
the proposed language presented by Respondent Desk
prior to the impasse. The rub comes in reading section
3.01 of the language which was implemented. Under the
language as proposed, an employee who was a member
of the prior plan on February 27 was a member of the
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
new plan as of the effective date without further action
on his part. Thus, there was no requirement that the em-
ployee have any period of time as an active employee
other than that as required in section 2.11(a).
In the new section 3.01 the language requires that each
employee who was a member of the prior plan as of
February 27, 1982, and who was actively employed by
the employer on April 1, 1982, shall become a member
of this plan on April 1 without further action on his part.
Thus, striking employees could not qualify under this
provision. However, the section reads on that each other
employee shall become a member of the plan on any par-
ticipating date coincident with or next following after
the date the employee has been actively employed for at
least 90 consecutive days. The gist of this last sentence
would require that any striking employee who returned
to work after April 1, 1982, would have to work 90 days
prior to a commencement date before becoming a
member of the plan. The commencement dates are July 1
and January 1, and, therefore, an employee would have
to put in 90 days of employment prior to any given Janu-
ary 1 or July 1. Thus, any striking employee who re-
turned let us say 89 days prior to a commencement date
would have to work that 89 days, plus the full 6 months
between January 1 and July 1, or July 1 and January 1
of the following 6 months, in order to become a member
of this plan. This is the language or the requirement that
the General Counsel contends is bad and was changed
for discriminatory reasons. Under this plan it is possible
that a returning striking employee could conceivably be
required to work 89 days plus 180 days to become a
member of this plan, and this could conceivably post-
pone his retirement for this extended period.
The record reflects that at the meeting of March 25,
1982, there were some remarks by company negotiator
Rich to the extent that the effective date of the pension
plan as set forth in section 3.01 might be changed and
that he announced a change in the effective date of the
plan to April 1, 1982. There was also testimony from
witnesses that Rich made some comment about a 90-day
period and that Rich was referring to section 3.01 of the
plan. At best the testimony is ambiguous and it cannot be
ascertained whether Rich was putting the Union on
notice that the plan would be modified to read as that
ultimately implemented in section 3.01. In any event, it
would seem that from the comments by Rich this would
have put the union negotiators on notice at least enough
to make an inquiry as to what he was referring to and
precisely what the change was going to be. However the
Union chose not to make any inquiry in this matter
whatsoever. Like this entire course of bargaining, at least
in my view, the Union did not take the Company serious
in its proposals and its proposition that it was going to
set up its own pension and insurance plan if they could
not come to terms on the Union's proposals. Thus, it is
my serious view that the Union was merely stonewalling
the entire negotiations until it could bring about a strike
and it hoped that by the strike Respondent Desk would
crumble and give it what it asked for in negotiations. In
the past there had been relatively few strikes between
the Union and Respondent Desk and some way or the
other the negotiations seemed to bring about a contract.
While I do not mean to imply that the Union did any-
thing wrong in this type of negotiations, it just appears
to me that the Union did not take this employer serious
during the negotiations which began in December 1981.
In any event about April 1, 1982, Respondent Desk
did in fact implement the pension plan as set forth above.
There is no doubt that the implemented language in sec-
tion 3.01 is different from the language in section 3.01
that was proposed to the Union. There is no doubt that
the language at least to some extent is substantial.
Although the change in the pension plan was put into
effect on April 1, 1982, the General Counsel argues that
the Union did not become aware of this change until
August 1982 when Respondent Desk mailed a notice to
all employees regarding the pension plan on which it
was then seeking approval from the IRS. Shortly there-
after, in September 1982, the Union filed the current
charge specifically alleging that Respondent Desk had
implemented a plan substantially different from the pen-
sion plan offered by it during the negotiations. In the
earlier charges which were dismissed the Union had al-
leged as a violation the unilateral implementation of the
plan, but in its charges it made no mention of the fact
that the plans differed. Neither was there any discussion
of this specific point in the Regional Office memos or the
General Counsel 's memos dismissing these charges.
After the Employer learned of the charge brought by
the Union over the change in the pension plan, Rich
asked the Union's negotiator Rothman if there was a
problem, and Rich further offered to clean up the provi-
sion and return to the old language. Rich testified that
after he offered to clean up the provision and return to
the old language he never got a response from Rothman.
Rothman, on the other hand, asserted that he did
accept Rich's offer and asked if that meant that Rich
would write the IRS and amend the proposal Respond-
ent Desk had submitted in August 1982. According to
Rothman, Rich responded that he would do this and
Rothman asked that he send him a copy, to which Rich
responded he would try or would if he had to. The Gen-
eral Counsel suggests that resolving this conflict is rela-
tively easy by simply asking which version is more in-
herently probable. He continues by saying that the Union
having filed a charge with the Board which alleged
changes to the pension plan it would be difficult to imag-
ine that Rothman would not accept Respondent Desk's
offer to implement the plan as proposed, that is, go back
to the plan that was proposed during negotiations. But
resolution of the credibility problem on this point is not
that easy. It is clear that the Union wanted its pension
plan and not the pension plan of Respondent Desk. It is
also clear that by agreeing to changes in the Employer's
plan the Union could be agreeing to accept this plan. Up
to this point the Union had never given any indication
that it would be satisfied with any plan other than the
one it was proposing and was then administering. It
seems perfectly consistent that Rothman would not
accept the Company's proposal to change the plan back
to what it was during the negotiations because the Union
wanted its plan and was not interested in agreeing to any
changes in the proposals of Respondent Desk or its plan.
INDIANA DESK CO. 1443
In his brief the General Counsel refers to Respondent
Desk's pension summary description which was distribut-
ed to the employees, which states "if you were employed
on April 1, 1982, and continued to work for at least an-
other 90 days in a row after that your past time with the
company will be counted for credited service and years
of service," as being a proposition whereby Respondent
Desk "has taken away from the striking employees all of
their past credited service." It seems that Respondent
Desk was merely telling the striking employees that after
they returned to work they must work 90 days to be en-
titled to their past credited service. Thus, it may be that
the Employer had already corrected that which it told
Rothman it would do. In any event, to the extent that
there is a discrepancy in the testimony between Rothman
and Rich on this point, I credit the testimony of Rich,
and conclude that at least when the change in language
was called to Respondent Desk's attention it made an
offer to correct the implemented plan. In this regard
Rich's testimony had more of a ring of truth than that of
Rothman. I do not agree with the General Counsel's
view of these facts, and conclude that it is just as consist-
ent that Rothman refused to accept this plan because he
did not want Respondent Desk's plan as implemented or
as proposed.
In any event, although it is true that Respondent Desk
implemented a plan somewhere different from the one it
proposed during negotiations, the employee notification
letter which Respondent Desk distributed to its employ-
ees and apparently posted on the company bulletin board
does not indicate that it was the Company's intent to
alter the proposed language in the manner in which it
was interpreted. Thus, in its notice to the employees the
Company specified that all employees who were mem-
bers of the United Furniture Workers fund as of Febru-
ary 27, 1982, and who were actively employed on April
1, 1982, were automatically a participant in the Compa-
ny's plan on April 1, 1982. All other employees were eli-
gible to participate as soon as they completed 90 consec-
utive calendar days of active employment after April 1,
1982. There is nothing in this language which specified
that this 90 days had to be performed prior to a partici-
pation date as set forth in the implemented section 3.01.
Thus, it would appear that the Company did not intend
that employees work more than 90 consecutive days to
be eligible under the plan.
It is my conclusion that Respondent Desk's implemen-
tation of the plan did not violate the Act. I reach this
conclusion because the plan implemented was well
within the language discussed with the Union, because
from the testimony of Rich and the language contained
in the notice to the employees it does not appear that
Respondent Desk intended that striking employees work
more than 90 days to be entitled to past credited service
and eligibility under the plan, and, most importantly, be-
cause Respondent Desk offered to change the language
and revert to the language as proposed during the nego-
tiations. Therefore, as Respondent Desk has indicated its
willingness to correct this language, and I assume that it
would do so, I shall recommend that this portion of the
complaint be dismissed.19
Paragraphs 8(h) and (i) of the complaint allege that
about March 1, 1982, Respondent Desk unilaterally
ceased contributions to the Union's pension and insur-
ance funds notwithstanding the lack of a valid impasse in
negotiations between it and the Union.
As indicated earlier the contract expiration date was
January 9, 1982. The parties had agreed earlier that the
contract would be extended on a day-to-day basis subject
to a 10-day notice to terminate. Respondent Desk on
February 15, 1982, gave the Union a notice of its inten-
tion to cancel the contract. At the February 25, 1982
meeting Rich requested if the Company could implement
the insurance plan. The Union advised that it could not
because there had been no impasse.
This record also reflects that, according to the Union,
there was an agreement between the parties that Re-
spondent Desk would not have to make contributions for
either the insurance or the pension program for March
1982 and thereafter, and that Union's funds would con-
tinue to provide benefits under the two plans and what-
ever party eventually got its program negotiated would
cover the cost. There seems to be no doubt that the Em-
ployer agreed to this, at least insofar as the insurance
provisions were concerned. Although the record is not
all that clear that the Company agreed in the same
manner with regard to the pension program, there does
not appear to be any specific problem raised during ne-
gotiations over this problem.
This matter was fully covered by the earlier charges
and these charges were dismissed and sustained on
appeal by the General Counsel. It is my conclusion that
these allegations have no merit, and if any merit exists to
these allegations at all they are barred by Section 10(b)
of the Act. Therefore I recommend dismissal of para-
graphs 8(h) and (i) of the complaint.
Paragraph 8(j) of the complaint alleges that about May
19, 1982, Respondent Desk withdrew its final offer,
thereby evidencing a fixed intent to avoid reaching an
agreement, and thereafter until July 27, 1982, refused to
offer, or to commit itself to, any proposal unless or until
the Union agreed to accept, in total, the proposal Re-
spondent Desk had withdrawn, thereby making the
Union's acceptance of an offer to which Respondent
Desk would not agree a precondition of further negotia-
tions.
As indicated earlier the Union had instituted a strike
against Respondent Desk on March 29, 1982, and by
April 20, 1982 Respondent Desk had hired a sufficient
number of replacement workers to resume its operations.
On May 19, 1982, Respondent Desk sent the Union the
following telegraphic message:
In light of recent Court decision indicating that uni-
laterally telegraphic acceptance of an employer's
offer may be sufficient to create a contract, this is
to advise you that the company's offer with respect
to noneconomic items is no longer subject to ac-
19 See Carlsen Porsche Audi, 266 NLRB 141 (1983).
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ceptance by your organization in such a manner,
tentative agreement on all noneconomic items is
withdrawn but subject to possible reinstatement
only after 5-days notice in formal negotiations of
your willingness to accept the company's terms.
The Company stated that after successfully weathering
the strike for 6 months it had won the economic battle.
Therefore, in order to press its advantage and prevent
the Union from automatically receiving the benefits of
the Company's prestrike concessions, it withdrew the
proposals, as set forth in the telegram.
On May 21. 1982, responding to the Company's mail-
gram the Union inquired if the mailgram required that
the Union state its willingness to accept the Company's
terms as a condition to the resumption of formal negotia-
tions. Respondent Desk responded on May 24, 1982, ad-
vising chief negotiator George Rothman that "the com-
pany's mailgram of May 19, 1982, places no conditions
on the resumption of formal negotiations." This was re-
ceived by the Union on May 25, 1982.
Thus, in my view, it is clear that Respondent Desk
placed no conditions on further negotiations. Moreover
from the telegram it would appear that the Company's
offer, although no longer subject to acceptance by the
Union by telegram, was available to the Union in negoti-
ations after a 5-day notice of the Union's willingness to
accept the Company's terms. I see nothing in this to con-
dition future bargaining. The Company's mailgram seems
to me to be perfectly consistent with the decision in
Pepsi-Cola Bottling Co. v. NLRB, 659 F.2d 87 (8th Cir.
1981), and its withdrawal or conditional withdrawal of
its prior proposals was not unlawful.
Furthermore, the mere fact that the parties met and
conducted negotiation sessions after the May 19, 1982
telegram until July 1983 in and of itself indicates that the
Employer placed no conditions on future negotiations.
The General Counsel argues, however, that Respond-
ent Desk did not know what proposals it had on the
table. Respondent Desk was well aware of its proposals
for negotiator Rothman continued to include these pro-
posals in his summaries which he prepared prior to each
bargaining session. Moreover, there is nothing in this
record to indicate that Respondent Desk was willing to
accept or, in fact, sought to accept any of the Company's
proposals which it had withdrawn.
In my view, under recent Board decisions Respondent
Desk would have been perfectly justified in withdrawing
all of its prestrike proposals, even those that had been
agreed to, and would have been entitled to renegoti-
ations on all of these proposals. Respondent Desk sought
only that the Union give it a 5-day notice of its willing-
ness to accept the Company's prestrike proposals and
then the parties would consider these proposals in nego-
tiations. The Union never sought to agree to these pro-
posals or even to consider them in negotiations. See
Barry-Wehmiller Co., 271 NLRB 471 (1984).
Therefore, it is my conclusion that the General Coun-
sel has failed to establish by sufficient evidence the alle-
gations of paragraph 8(j) of the complaint , and I shall
recommend that it be dismissed.20
Paragraph 8(k) of the consolidated complaint alleges
that on July 27, 1983, Respondent Desk made a proposal
substantially withdrawing its agreement to previously
agreed-upon matters and substantially added proposals
not previously proposed by Respondent Desk in the
areas where the parties had agreement , all of which was
predictably unacceptable and designed to prevent the
parties from reaching agreement , and thus violative of
Section 8(a)(5) of the Act.
At the April 22, 1983 bargaining session negotiator
Rothman apparently asked Rich if he had a completed
agreement which the Union could sign. Rich responded
that he did not have one . While there are several ver-
sions of this conversation it would appear that Rothman
asked for a contract that the Union could agree to and
sign and Rich indicated that he did not have one or one
was not available . It appears that Rich did not think the
Union would sign the contract even if one was available.
In any event on June 29 , 1983, Don Riger , the director
of District 7, UFWA, AFL-CIO, informed Rich that at
the next bargaining session they would expect the Com-
pany to be ready to present to the committee a full pro-
posal that the Company would agree to, if accepted by
the bargaining committee and membership of the Local
Union. On July 18, 1982, Rich responded that as the
Union's proposal of April 22, 1982, did not alter the
Union 's position in any significant respect he saw no
reason to respond to it with a new company proposal.
He further indicated , however, that as the mailgram indi-
cated the Union 's desire to have a new proposal from the
Company, the Company was prepared to formulate a
comprehensive settlement package that reflected the cur-
rent state of the relative economic strength of the parties.
He advised that "you should understand that this propos-
al will not be as favorable from your point of view as
that which your organization has repeatedly rejected."
He further advised , "[I]n knowing this if you still wish to
meet and receive the proposals the company would pre-
pare to have representatives at the negotiating session on
July 28, 1983."
In response to Rich's letter , on July 19, 1983 , Riger re-
sponded by stating that when he asked the Company to
present to the committee its full proposal that the Com-
pany would agree to, he did not say that the Union was
asking the Company to reduce the previous proposals.
Riger further advised that "we assume that your reflec-
tions on the current state of the relative economic
20 In dismissing the 8 (a)(5) allegations of the charge in Case 25-CA-
14687, which alleged as a violation the precise allegation as contained in
par 8(1) of the instant consolidated complaint, Regional Director Little
on September 17, 1982, stated
The Union also alleged that the employer withdrew its final offer
from the bargaining table through the issuance of a telegram to them
on or about May 19, 1982 The investigation disclosed that the em-
ployer had not withdrawn its final offer through the issuance of the
telegram , only conditioned it upon face-to-face acceptance , and that,
even had it done so, the changed circumstances at the time , particu-
larly the hiring of replacement strikers, created sufficiently changed
circumstances that the employer could request its items previously
agreed upon be re-negotiated There was no indication that the
Union ever accepted the final offer at any time.
INDIANA DESK CO. 1445
strength of the parties would include reference to the
substantial backpay liability of the company accumulat-
ing to the strikers." He further advised that "we stand
ready as we always have to meet with the company and
resume bargaining," and he indicated that the Union
would examine any proposal that the Company present-
ed.
At the July 27, 1983 bargaining session Respondent
Desk prepared and presented a new proposal for the
Union which was taken, for the most part, from the Indi-
ana Cabinet, a related company in which the same nego-
tiating parties, both the Union and Respondent Desk,
had successfully concluded negotiations in October 1982.
The record reflects that Respondent Desk presented its
proposal; and that it was made clear that it was only a
proposal and was negotiable; and that the Union then
caucused and returned highly incensed, stating that this
was a regressive agreement and was less than the Com-
pany's final offer of March 29, 1982, and rejected the
proposal immediately. The Union then made a counter-
proposal with regard to the insurance plan.
The General Counsel contends that Respondent Desk's
offer of July 27, which was less than the final offer in
March 1982, was a regression and designed as "predict-
ably unacceptable" and clearly presented to hinder and
prolong bargaining.
An employer after it has successfully weathered a
strike, because of the changed circumstances, may re-
quest renegotiations on items which the parties had
agreed to prior to the strike. If the employer proposes
changes which are less than those previously offered he
must make a satisfactorily explanation for those changes.
Here there was some explanation by Rich in a limited
area, and his telegram prior to the negotiation session he
indicated that the contract would be something less than
that previously offered. He did not in that telegram ex-
plain why particular items would be changed other than
just changed circumstances.
Whether Respondent Desk would have given a com-
plete explanation for the changes in the July 27, 1983
proposal I cannot say for the Union caucused and reject-
ed the proposal without any further discussion or expla-
nation. At all times Respondent Desk indicated that the
proposal was negotiable and did not advise the Union
that it was this or nothing else, and did not take a take-it-
or-leave it attitude.
Although it appears that Respondent Desk did take a
harsh position at this negotiation session, and proposed a
contract which the Union undoubtedly did not want and,
as indicated, totally rejected, it is not my function to de-
termine what the Employer should propose or not pro-
pose in negotiations. It is clear that all of these proposals
had been accepted by this Union at another employer
and that the same parties had negotiated that agreement.
Under the circumstances, it is my conclusion that the
General Counsel has failed to establish that Respondent
Desk proposed predictably unacceptable proposals and
that it engaged in bad-faith bargaining in this regard, and
I shall therefore recommend dismissal of paragraph 8(k)
of the complaint.21
At the close of the hearing the General Counsel
amended the complaint to add a new subparagraph (n) to
paragraph 8, which reads as follows:
On or about April 1, 1982, Respondent unilateral-
ly changed the method by which it compensated
employees when not on the piece work-when not
on the piece rate system and ceased paying "aver-
age pay," without giving-without providing the
Union notice and opportunity to bargain.
This amendment apparently relates to the testimony of
Kreilein that following the strike in 1982 Respondent
Desk ceased paying "average pay" to employees who
were working on piecework where the rate had not been
established by agreement.
The General Counsel contends that during the discus-
sions on contract negotiations prior to the strike Re-
spondent Desk at no time made any proposals which
would do away with average pay. Kreilein testified that
to his knowledge there was no specific proposal to elimi-
nate average pay but this would have been a necessary
result of Respondent Desk's contract proposal on incen-
tive pay.
As I understand Respondent Desk's argument through-
out this proceeding, one of the basic problems with the
incentive rate pay system was that in the past when the
parties could not agree upon an incentive rate during the
interim period the employees were paid average pay.22
Respondent Desk's proposal on incentive rates neces-
sarily meant that if agreement could not be reached on
the proposed incentive rate, Respondent Desk would put
it into effect and leave the Union to its economic re-
sources to resolve the dispute. The Union obviously un-
derstood this, for it proposed as a contractual item
during any period of disagreement on incentive rates that
employees be paid average pay, but not necessarily 100
percent. In my view, the discontinuance of average pay
after the strike was consistent with the Company's con-
tract proposals and further bargaining with the Union
over this item was not necessary.
Accordingly, it is my recommendation that paragraph
8(n) of the complaint be dismissed in its entirety.
Paragraphs 8(1) and (m) allege that since about April
1, 1982, Respondent Desk by its actions as to the pension
plan described in paragraph 8(f) awarded preference in
terms and conditions of employment only to its employ-
ees who did not engage in and who abandoned the
strike, and that such conduct is inherently destructive of
the rights guaranteed employees by Section 7 of the Act.
In view of ray disposition of paragraphs 8(f) and (g) of
the complaint, and as I find no evidence to support these
21 Par. 12 of the complaint also alleges this to be a violation of Sec.
8(a)(3) As I find no discriminatory motive in Respondent Desk's actions,
this allegation is also dismissed
22 There is nothing in the contract that specifies that when the parties
cannot agree on an incentive rate an employee shall be paid average pay
This apparently grew out of a custom and practice between the parties
and existed apparently at all times up until the strike
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations, I shall recommend that they be dismissed in
their entirety.
F. The Strike, the Strikers, and the Recall of the
Striking Employees
Paragraph 9(a) of the complaint alleges that about
March 29, 1982, certain employees of Respondent Desk
represented by the Union and employed at the facility
ceased work concertedly and engaged in a strike.
Paragraph 9(b) of the complaint alleges that the strike
was caused by the unfair labor practices of Respondent
Desk, which occurred prior to the strike, and that Re-
spondent Desk's unfair labor practices prolonged the
strike. Respondent Desk denies this allegation.
I have reviewed the minutes of the Union's meetings,
General Counsel Exhibit 99, from January until March
27, 1982, just prior to the strike. The January minutes in-
dicate that the main discussion was over the contract and
it was agreed to continue the contract on a day-to-day
basis. The minutes reflect that George Rothman ex-
plained how the Company wanted total control and how
that would affect the employees' lives and talked about a
possible strike and how the employees would go about it.
The membership agreed to go on strike if the Company
did not make some concessions . Thus, it was apparent
that as early as January 1982 the Union was considering
a strike against the Company.
At the February 19, 1982 meeting Union President
Nicholson advised that there was no new progress in the
bargaining, and that the contract was being continued on
a day-to-day basis. He said that the Company was firm
on its offer, it would not give anything, and it wanted to
have its own insurance and pension fund. He further ad-
vised that the Company also wanted to be able to set the
piece rates the way it wanted. The Company's contract
was then voted down by the union membership. Randy
Harrington also talked about the possibility of a strike.
At the March 19, 1982 meeting Nicholson advised the
membership that the Company had refused to talk and
that it gave iLS final offer . He said that the employees
had no choice but to go on strike. The membership
agreed to give the bargaining committee the right to call
a strike at any time.
An additional meeting was held on March 27, 1982.
Nicholson advised the employees that the Company re-
fused to bargain in good faith and that the only alterna-
tive was to go on strike to make the Company bargain.
A vote was taken to let the bargaining committee call a
strike at any time they wished.
On March 29, 1982, the Company's employees went
out on strike. This strike occurred prior to the negotia-
tion session of March 29, 1982, at which the parties ar-
rived at their impasse.
The picket signs , at least those that were depicted in
this proceeding, indicated that the Union was on strike
for fair bargaining.
In Tufts Bros., 235 NLRB 808 at 811 (1978), the Board
stated:
Unfair labor practices must be more than a source
of dissatisfaction, they must be one of the reasons
for striking. It is clear that the Union locked into
itself into a strategy whereby progress at the negoti-
ating table on union-security and other economic
issues was the requirement for avoiding a strike. We
therefore conclude that the strike of November 8
was a result of a genuine impasse in bargaining and
was purely an economic strike.
Thus, it is clear to me that even if there are unfair
labor practices coinciding with the progress of the nego-
tiations and prior to a strike by the Union, you must con-
clude that these unfair labor practices were the resulting
factor in the strike and not merely because of the eco-
nomics of the situation. Here, as early as January 1982
the Union had taken a strike vote because the Employer
had not made any concessions in the bargaining.
The fact that the issues and proposals on which the
Union and the Employer were engaging in hard bargain-
ing ultimately became the subject of unfair labor practice
charges and this complaint does not mean that this strike
was over the unfair labor practices of this employer.
This strike was over the fact that the Employer had pro-
posed certain items which the Union objected to and
which it would not concede to the Employer, and which
the parties engaged in bargaining and ultimately reached
impasse on March 29, 1982.
In any event, as I have found that the Employer had
not engaged in any unfair labor practices prior to the in-
ception of the strike, it is my conclusion that the strike
was not an unfair labor practice strike and that the em-
ployees were not unfair labor practice strikers. More-
over, it is also my conclusion that the 8(a)(1) conduct en-
gaged in by Respondent Desk and its agent Respondent
CIB after the commencement of the strike did not con-
vert this economic strike into an unfair labor practice
strike nor did it prolong that strike.
Paragraph 10 of the complaint alleges that about No-
vember 20, 1982, and on December 3 and 10, 1982, the
Union on behalf of the striking employees made an un-
conditional offer to return to their former positions of
employment.
While I do not regard the November 20, 1982 tele-
gram and letter as an unconditional offer to return to
work, I do regard the December 3 communication by
the Union as an unconditional offer to return all the
striking employees to work. However, as I have con-
cluded that these employees were not unfair labor prac-
tice strikers, Respondent Desk was under no obligation
to give them jobs replacing the replacement workers.
However, as economic strikers they are entitled to be re-
instated when there are jobs available.
The complaint further alleges in the subparagraphs to
paragraph 10 that Respondent Desk in and after January
1983 failed and refused to comply with the established
contractual and customary incidence of seniority in re-
calling the economic strikers and therefore violated Sec-
tion 8(a)(3) of the Act.
In Laidlaw Corp., 171 NLRB 1366 (1968), the Board
stated that economic strikers who unconditionally apply
for reinstatement at a time when their positions are filled
by replacement workers remain employees of the em-
ployer and are entitled to full reinstatement on the depar-
ture of these replacements unless they have in the mean-
INDIANA DESK CO. 1447
time acquired regular and substantial employment, or the
employer can sustain his burden of proof that the failure
to offer full reinstatement was for legitimate and substan-
tial business reasons.
Laidlaw did not describe the method and the manner
in which economic strikers were to be recalled. It did
not specify that they be called back on the basis of se-
niority or in any other particular manner.23
Following the receipt of the request to return the
striking employees to work the Employer notified the
Union that the striking employees had been permanently
replaced and as economic strikers that they will be noti-
fied of job openings in accordance with the law pertain-
ing to economic strikes.
Thereafter, on various dates commencing about Janu-
ary 11, 1983, Respondent Desk offered recall to 46
former striking employees, 30 of whom have accepted
reinstatement . The record reflects that the last striker to
be recalled was recalled on May 2, 1984.
It is clear that Respondent Desk did not recall the
strikers according to their departmental seniority. The
Company's witnesses testified that almost in every in-
stance when an employee was recalled there was in fact
an employee more senior who could perform the particu-
lar job. Respondent Desk asserted that although it did
not follow any seniority procedure in its recall of the
economic strikers, its practice where possible was to
recall the precise employee that had performed the job
prior to the strike and the economic striker would be re-
placing the employee that replaced him.
The General Counsel contends that any system de-
vised by Respondent Desk that did not follow seniority,
if the senior employee was capable of performing the
job, is inherently destructive of Section 7 rights and dis-
criminatory.
The General Counsel further contends that the system
devised by Respondent Desk is obviously subject to ma-
nipulation so that Respondent Desk can avoid recalling
any particular striker it so desires due to the many excep-
tions in its system, and that this makes the system clearly
a pretext. I have carefully read the decisions and the ar-
guments made by both the General Counsel and Re-
spondent Desk in this matter and I am of the opinion
that none of the cases cover the specific problem raised
in this proceeding. That is, in a Laidlaw recall situation
must the employer recall economic strikers on a strictly
seniority basis without regard to the job involved, assum-
ing that the most senior employee can perform the func-
tion, and thus give preference to seniority rather than
giving the job to the specific employee that had the job
prior to the strike?
In the instant case the Employer without regard to se-
niority ga-,e the available job to the employee who had
that job prior to the strike, and in the event of the un-
23 At the time of the strike, March 29, 1982, Respondent Desk had a
complement of approximately 170 employees . On April 20 , 1982, Re-
spondent Desk commenced operation of the facility with replacement
workers and by mid-August 1982 had achieved a full complement of em-
ployees necessary to operate the plant with about 165 employees. Not all
of the Company 's striking employees were replaced as some 32 striking
employees returned to work before being replaced Others were never re-
placed.
availability or the declination of that employee it then of-
fered that job to the most qualified other striking em-
ployee. There is clearly no evidence here that the Em-
ployer went out on the street and hired employees. It is
clear that all employees who were recalled to replace the
replacements were former striking employees. This is not
a situation as in Laidlaw where the employer hired em-
ployees off the street rather than recall striking employ-
ees and could not give a business justification. Certainly
the business justification as contemplated by Laidlaw
would only be required if the employer hired employees
other than strikers. Here the question is not the hiring of
employees other than strikers but giving preferential
treatment among the striking employees.
There is much to be said for the fact that the best
practice in such a situation might be to recall strikers on
a strictly seniority basis. On the other hand the employ-
ees who went on strike did not go on strike on a seniori-
ty basis. However, in the absence of some evidence by
the General Counsel that Respondent Desk purposely
discriminated among the striking employees by failing to
follow seniority, I do not feel that I am in a position to
determine that this practice engaged in by Respondent
Desk was inherently destructive of Section 7 rights and
discriminatory. The testimony reflects that 20 of the 30
strikers were recalled to their exact former jobs and that
of the 10 remaining , the striker who had filled that exact
position was first considered, but when that person was
unable or unwilling to fill the position it was offered to
the striker having the greatest experience on that job.
As I indicated there is no allegation that the Company
either hired new employees off the street after the strik-
ers offered to return to work or transferred employees to
a vacancy to create a chain reaction for discriminatory
reasons, and other than the hypothetical situations set up
by the General Counsel, which I do not discount, I
cannot conclude that this practice used by Respondent
Desk in recalling the striking employees was discrimina-
tory. Accordingly, I shall recommend that this allegation
of the complaint be dismissed in its entirety. Moreover,
the fact that Respondent Desk did not bargain with the
Union over the manner in which it recalled the striking
employees is not a violation of Section 8(a)(5). There-
fore, I shall recommend that this allegation of the com-
plaint be dismissed.
CONCLUSIONS OF LAW
1. Indiana Desk Company, Inc. and its agent Com-
mand Investigations Bureau, Inc. are employers engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Furniture Workers of America, AFL-CIO,
and its affiliated Local 334-236 are labor organizations
within the meaning of Section 2(5) of the Act.
3. By its supervisor and agent striking a picketing em-
ployee with a motor vehicle; by threatening and implied-
ly threatening employees by a display of weapons, attack
dogs, and a marshal arts performance by the CIB guards;
by meancing employee Oscar Warman and trying to
force his vehicle off the road while pointing a pistol and
a camera out the window of their vehicle toward
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Warman; by supervising guard Phillip Beyer and CIB
guard Penman in the presence of other pickets threaten-
ing to kill employee Dedrick; by threatening employee
Dedrick with reprisals; by the mid-July 1982 physical as-
sault by CIB guard Derwood Jacobs upon employee
Ingle and employee Gehlhausen; by the August 18, 1982
physical assault by supervising guard Beyer upon em-
ployee Gehlhausen; by the June 30, 1982 physical assault
with a vehicle by supervising guard Beyer upon employ-
ee Beck; by the threat by supervising guard Beyer to em-
ployees at the carpool area that the next time he would
run over them; by supervising guard Beyer driving his
car against employee McCraney's foot; by the CIB
guards swerving their vehicles at striking employees
while they were walking on the picket line; by the June
1, 1982 incident when CIB Owner Jones pointed a
sawed-off shotgun at employee Applegate; by the June
30, 1982 incident involving employee Steve Hawkins
where the CIB guards shoved striking employee Haw-
kins into the street and threatening to tear his head off,
by the July 1982 incident in which supervising guard
Beyer attempted to provoke Union Representative Har-
rington into a fight, Respondent Desk and its agent Re-
spondent CIB have engaged in conduct violative of Sec-
tion 8(a)(1) of the Act.
4. By stationing the CIB guards near the Holiday Inn,
at which place Union Representatives Harrington and
Rothman were staying; by the April 19, 20, and 21 inci-
dent involving striker Don West in which a CIB guard
followed him for approximately 10 miles from Respond-
ent Desk's plant and stationed himself near West's trailer;
by parking near the home of striking employee Wilcox
and by informing employee Wilcox that the guards knew
where he lived and that he should expect harassment; by
the April 21, 1982 following of the vehicle of striking
employee Mike Chrismas by a CIB guard; by the con-
duct of the CIB guards in watching the striking employ-
ees while they were at Jerry's Restaurant, including shin-
ing of their spotlights into the restaurant on the strikers
while they were sitting, the Respondents engaged in
clear acts of surveillance or clearly engaged in the un-
lawful creation of the impression of surveillance among
Respondent Desk's employees in violation of Section
8(a)(1) of the Act.
5. The General Counsel has not established by a pre-
ponderance of the credible evidence that the Respond-
ents violated Section 8(a)(3) of the Act as alleged in the
complaint.
6. The General Counsel has not established by a pre-
ponderance of the credible evidence that Respondent
Desk has violated Section 8(a)(5) of the Act as alleged in
the complaint.
On these findings of fact and conclusions of law and
on the entire record I issue the following recommend-
ed24
ORDER
The Respondents, Indiana Desk Company Inc., Jasper,
Indiana, and Command Investigations Bureau, Inc., Indi-
anapolis, Indiana , their agents, officers, successors, and
assigns, shall
1. Cease and desist from
(a) Threatening and impliedly threatening employees
with physical harm if they did not refrain from engaging
in picketing or otherwise assistng the Union.
(b) Physically assaulting or threatening to physically
assault employees with motor vehicles because employ-
ees engaged in activities on behalf of the Union.
(c) Threatening its employees with death or physical
harm because of their activities on behalf of the Union.
(d) Physically restraining, shoving, or assaulting its
employees because they engage in lawful picketing or
otherwise assist in supporting the Union.
(e) Soliciting picketing employees to engage in fights
because they are engaged in lawful picketing or other-
wise assist in supporting the Union.
(f) Creating an impression among its employees that
their union activities and concerted activities for the pur-
poses of collective bargaining or other mutual aid or pro-
tection are under surveillance by the Respondents.
(g) Physically assaulting union representatives in the
presence of striking employees because they were en-
gaged in lawful picketing and otherwise assisting and
supporting the Union.
(h) Engaging in surveillance of their striking employ-
ees' union activities.
(i) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Respondent Desk shall post at its Jasper, Indiana
facility and Respondent CIB shall post at its Indianapolis,
Indiana facility copies of the attached notice marked
"Appendix."25 Copies of the notice, on forms provided
by the Regional Director for Region 25, after being
signed by the Respondents' authorized representatives,
shall be posted by them immediately upon receipt and
maintained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondents have taken to comply.
IT IS FURTHER RECOMMENDED that the allegations of
the complaint which have not been supported by a pre-
ponderance of the evidence be dismissed.
24 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings , conclusions , and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
25 If this Order is enforced by a Judgment of a United States Court of
Appeals, the words in the 'notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
INDIANA DESK CO. 1449
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten or impliedly threaten employ-
ees with physical harm if they do not refrain from en-
gaging in picketing or otherwise assisting the Union.
WE WILL NOT physically assault or threaten to phys-
ically assault employees with motor vehicles because em-
ployees engage in activities on behalf of the Union.
WE WILL NOT threaten employees with death or phys-
ical harm because of their activities on behalf of the
Union.
WE WILL NOT physically restrain, shove, or assault
employees because they engage in lawful picketing or
otherwise assist in supporting the Union.
WE WILL NOT solicit picketing employees to engage in
fights because they are engaged in lawful picketing or
otherwise assisting the Union.
WE WILL NOT create an impression among employees
that their union activities and concerted activities for the
purpose of collective bargaining or mutual aid or protec-
tion are under surveillance.
WE WILL NOT physically assault union representatives
in the presence of striking employees because they are
engaged in lawful picketing and otherwise assisting and
supporting the Union.
WE WILL NOT engage in surveillance of striking em-
ployees' union activities.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
INDIANA DESK COMPANY, INC.
COMMAND INVESTIGATIONS BUREAU, INC.