Magic Chef, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 380 (N.L.R.B. 1987)

380 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Magic Chef, Inc. and Dorothy Williamson . Case 10-
CA-19683
30 September 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 31 March 1986 Administrative Law Judge
Irvin H. Socoloff issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed limited cross-exceptions
and a brief in support of the judge's decision to
which the Respondent filed a response, and the
Union filed a response to the Respondent's excep-
tions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions as modified, 3 and to adopt the rec-
ommended Order as modified.
i The Respondent asserts that the judge was biased toward the Gener-
al Counsel and the Charging Parties Our examination of the record dis-
closes no evidence of bias
2 The Respondent has excepted to some of the judge's credibility find-
ings The Board 's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1951), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In affirming the credibility resolutions underlying the 8(a)(1) threat
made by Supervisor Johnson to employee Davis, we note that Johnson's
statement was consistent with the judge's finding, which we affirm, that
employee Williamson was instructed by her supervisor not to talk to
other employees about the Union
3 On 8 May 1987, following the negotiation of a comprehensive non-
Board settlement agreement in Cases 10-CA-18978 and 10-CA-19889,
the Board issued an order granting the unopposed joint motion of the Re-
spondent and the Union to withdraw their charges and sever these cases
from Case 10-CA-19863 and remand them to the Regional Director for
Region 10
The original charge filed in Case 10-CA-18978 on 11 February 1983
alleged that the Respondent engaged in bad-faith bargaining , permanently
replaced unfair labor practice strikers, and solicited decertification au-
thorizations from employees-all in an effort to undermine the Union in
violation of Sec 8(a)(5) and (1) of the Act The charge filed in Case 10-
CA-19889 on 23 December 1983 alleges that in anticipation of the strike's
end, the Respondent discriminated against strikers by hiring far more re-
placements than it needed and by discriminating against four returning
strikers in violation of Sec 8(a)(3) The charge in Case 10-CA-19863
filed on 18 October 1983 alleges that the Respondent constructively dis-
charged employee Dorothy Williamson, and the amended complaint in
that case alleges that Supervisor Avery Johnson threatened employee
(Carlon Davis) with reprisals for joining or engaging in activities on
behalf of (e g , talking) the Union
In connection with the charges in Case 10-CA-18978, a complaint
issued containing allegations that the Respondent placed numerous re-
strictions on Williamson and kept her union activities under surveillance
in February and March 1983, in violation of Sec 8(a)(1) The judge
found that the Respondent violated Sec 8(a)(1) in the manner alleged He
also found, based on the complaint allegations resting on the charge in
Case 10-CA-19863, that the Respondent constructively discharged Wil-
liamson in violation of Sec 8(a)(3) In its exceptions, the Respondent con-
ORDER
The Respondent, Magic Chef, Inc., Cleveland,
Tennessee, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Constructively discharging employees be-
cause they support the Union.
(b) Threatening employees with reprisals if they
speak to other employees about the Union.
(c) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Offer to Dorothy Williamson immediate and
full reinstatement to her former position or, if that
position no longer exists, to a substantially equiva-
lent position, without prejudice to her seniority and
other rights and privileges. Make her whole for
any loss of pay she may have suffered by reason of
the discrimination against her by payment to her of
a sum of money equal to that which she normally
would have earned as wages, from the date of the
discrimination to the date of the Respondent's offer
of reinstatement less net earnings during such
period, with backpay to be computed in the
manner prescribed in F. W. Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded.4
(b) Remove from its files any reference to the
unlawful discharge and notify the employee in
tends the 8(a)(1) allegations are time-barred by Sec 10(b) insofar as they
are not related to charges filed in Case 10-CA-18978 and occurred more
than 6 months prior to the filing of the constructive discharge charge in
Case 10-CA-19863
In view of the "comprehensive" withdrawal and settlement of the
charges in Cases 10-CA-18978 and 10-CA-19889, on which basis the
General Counsel originally had alleged the restrictions as 8(a)(1) viola-
tions, we decline to find that the restrictions and surveillance constitute
violations of the Act Accordingly, we find it unnecessary to pass on the
Respondent's exceptions relating to Sec 10(b) However, the record es-
tablishes that the Respondent's restrictions and surveillance were de-
signed to , and did, force Williamson to quit the Respondent, and we have
considered this evidence as background supporting the constructive dis-
charge allegations, which were timely filed, in affirming the judge's find-
ing that the Respondent violated Sec 8(a)(3) by causing Williamson's ter-
mination See Bryan Mfg Co v NLRB, 362 U S 411 (1960)
In view of the above, we shall further modify the judge's recommend-
ed Order by deleting all reference to conduct that violates the Act other
than the 8(a)(3) conduct discussed herein and the 8(a)(1) threat of reprisal
made to Davis
4 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after I January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621 Interest on
amounts accrued prior to I January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
286 NLRB No. 33
MAGIC CHEF, INC. 381
writing that it has done so and that it will not use
the discharge against her in any way.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its Cleveland, Tennessee facility
copies of the attached notice marked "Appendix."3
Copies of the notice, on forms provided by the Re-
gional Director for Region 10, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(e) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken lo comply.
5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees with reprisals
if they speak to other employees about the Union.
WE WILL NOT discharge or otherwise discrimi-
nate against any of you for supporting International
Molders and Allied Workers, AFL-CIO-CLC and
its Local Union No. 48, or any other union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL offer to Dorothy Williamson immedi-
ate and full reinstatement to her former position or,
if that position no longer exists, to a substantially
equivalent position, without prejudice to her se-
niority and other rights and privileges. WE WILL
make her whole for any loss of earnings she may
have suffered because of the discrimination against
her, plus interest.
WE WILL notify her that we have removed from
our files any referance to her discharge and that
we will not use the discharge against her in any
way.
MAGIC CHEF, INC.
Karen Cordry, Esq. and Mary L. Bulls, Esq., for the Gen-
eral Counsel.
Joe H. Clark Esq. and Carl H. Trieshmann, Esq., of At-
lanta, Georgia , for the Respondent.
David M. Cook, Esq., of Cincinnati, Ohio, for the Charg-
ing Parties.
DECISION
STATEMENT OF THE CASE
IRWIN H. SOCOLOFF, Administrative Law Judge. On
charges filed on 11 February 1983, 28 December 1983,
and 16 April 1984, by International Molders and Allied
Workers, AFL-CIO-CLC and its Local Union No. 48
(the Union), and on 18 October 1983 by Dorthy William-
son, an individual, against Magic Chef, Inc. (the Re-
spondent), the General Counsel of the National Relations
Board, by the Regional Director for Region 10, issued
complaint, and amendments thereto, and an order con-
solidating cases dated 2 October 1984, alleging violations
by Respondent of Section 8(a)(5), (3), and (1) and Sec-
tion 2(6) and (7) of the National Labor Relations Act
(the Act). Respondent, by its answers, denied the com-
mission of any unfair labor practices.
Pursuant to notice, trial was held before me in Cleve-
land, Tennessee, on 10 October 1984; 5-9 and 13-16 No-
vember 1984; 10-14 and 18-21 December 1984; 28-31
January 1985; 1 and 12-15 February 1985; and 18-20
March 1985, at which the General Counsel, the Charg-
ing Parties, and the Respondent were represented by
counsel and were afforded full opportunity to be heard,
to examine and cross -examine witnesses , and to introduce
evidence. Thereafter, the parties filed briefs that have
been considered.
On the entire record' in this case, and from my obser-
vations of the witnesses, I make the following
FINDINGS OF FACT
I JURISDICTION
Respondent, a Delaware corporation, has an office and
place of business in Cleveland, Tennessee, where it is en-
gaged in the manufacture of appliances. Annually, it sells
and ships from its Cleveland, Tennessee plant, finished
products valued in excess of $50,000 directly to custom-
ers located outside the State of Tennessee. I find that Re-
spondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
I The General Counsel's unopposed motion to correct the transcript is
granted
382 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. LABOR ORGANIZATION
International Molders and Allied Workers, AFL-CIO-
CLC and its Local Union No. 48 are labor organizations
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Background
Respondent, a full-line appliance manufacturer, oper-
ates 16 manufacturing plants across the United States and
employs some 11,000 individuals. At six of the plants, the
employees are represented by labor organizations. At its
Cleveland, Tennessee, and City of Industry, California
plants, Respondent manfactures finished gas and electric
ranges . The City of Industry employees are represented
by the Teamsters Union
After a number of unsuccessful efforts to organize the
production and maintenance employees working at the
Cleveland facility, the Union, in May 1979, won an elec-
tion conducted by the Board among the then 1300 em-
ployees at that locale. The Union was certified on 5 June
1979 and, thereafter, following extensive negotiations,
the parties concluded a collective-bargaining agreement,
containing a checkoff provision, effective from 16 March
1980 to 23 January 1983.
Respondent and the Union engaged in negotiation of a
second contract, beginning 20 December 1982. When, by
23 January 1983, the day the existing agreement expired,
the parties had failed to conclude a new agreement, the
Union called a strike. Respondent hired permanent re-
placements for the strikers. Toward the end of the strike,
in late July 1983, Respondent increased its production
goals and hired an additional 160 new workers. More
workers were hired until 3 September 1983, when the
parties concluded an agreement, including a plan to rein-
state strikers as vacancies occurred. On that date, the
Union, in writing, made an unconditional offer to return
to work on behalf of the striking employees
In the instant case, the General Counsel contends that
Respondent violated Section 8(a)(5) of the Act by failing
to bargain in good faith with the Union during the 1982-
1983 negotiations, as evidenced by its bargaining conduct
pertaining to a contractual checkoff provision. Respond-
ent asserts that, during negotiations, it set forth its objec-
tions to checkoff in good faith and earnestly sought
agreement on that and other issues. Alternatively, Re-
spondent claims, it lawfully used checkoff as a bargain-
ing tool to gain other concessions from the Union.
The General Counsel further contends, and Respond-
ent denies, that the strike was an unfair labor practice
strike, precipitated by Respondent's bad-faith bargaining,
that Respondent violated Section 8(a)(1) of the Act
when, on 4 February 1983, it announced that the strikers
had been permanently replaced; that Respondent violated
section 8(a)(3) of the Act by hiring replacements, be-
tween 27 July and 3 September 1983, for the purpose of
eliminating the rights of striking employees to reinstate-
ment and that Respondent violated Section 8(a)(3) by its
refusal to reinstate unfair labor practice strikers on their
unconditional offer to return to work. Also at issue is
whether, on 30 April 1983, Respondent constructively
discharged employee Dorothy Williamson in violation of
Section 8(a)(3) and whether it engaged in other conduct
violative of Section 8(a)(1) of the Act.
B. Facts and Conclusions
1 Bargaining conduct and related matters2
a. The 1979-1980 negotiations
Following certification of the Union in June 1979, the
parties began contract negotiations in July of that year.
They agreed to try to complete negotiations by 13 De-
cember. Throughout the months of bargaining , checkoff
was a major issue. The Union, through Cubitt, stated
that it would never favorably recommend a contract
offer to the membership if the offer did not include a
checkoff provision. Respondent, through its chief spokes-
man at these negotiations, John Bryan, said that it did
not want to act as a collection agency for the Union. On
13 December, Respondent made its "final offer." Cubitt
stated that he could not recommended it as it did not
contain checkoff and the parties were still apart on many
other items. Bryan said that the Union had received Re-
spondent's best offer and Respondent's position would
not change.
Following the 13 December meeting , Cubitt placed a
telephone call to Jerry Ward, a member of the Magic
Chef bargaining team, and stated that the Union would
drop its other demands and reach agreement if it could
get another 10-cent increase in wages and a checkoff
provision. A pension matter may also have been dis-
cussed. Ward responded, stating that he would have to
8 Unless otherwise indicated, the factfindings contained in this section
are based on the testimony of William Cubitt, International staff repre-
sentative and the Union's chief spokesman at both the 1979-1980 and the
1982-1983 negotiations While certain key points are in dispute, the vast
majority of his testimony stands corroborated and uncontradicted in this
record Cubitt impressed me as a thoroughly honest and forthright wit-
ness in possession of a remarkable memory of events Although, under-
standably, no witness, including Cubitt, could remember every detail or
occurrence at each of the many bargaining sessions , I am convinced that
Cubitt, in his testimony, conveyed an accurate account of the events that
transpired His testimony was unshaken during an exhaustive and repeti-
tive cross-examination , which consumed almost 4 days and which ulti-
mately was terminated by me Other members of the Union's negotiating
committee, such as Mattie Webb, Wallace Cross, and Gerald Parks, im-
pressed me as truthful witnesses but they lacked the breadth of recollec-
tion displayed by Cubitt International Vice President George Roper, like
Respondent's vice president of manufacturing Jerry Ward, displayed little
memory of bargaining table events Respondent's chief spokesman at the
1982-1983 negotiations, William Foust, corporate vice president of
human resources, did display a relatively full recollection of events
However, I found Foust an evasive, argumentative, and hostile witness
whose testimony suffered, in some instances , from internal inconsisten-
cies Accordingly, I have not relied on Foust's testimony in certain criti-
cal areas where it differs from the credited testimony of Cubitt I have,
likewise, placed little reliance on the testimony of Larry Brand, a
member of Respondent's negotiating team and its plant director of human
resources I found Brand an evasive witness in possession of a very selec-
tive memory of the details of events Like Foust, Brand's demeanor as a
witness did not suggest an attempt to relate the facts Finally, although
the bargaining notes of both the Union and Respondent are in evidence, I
have accorded them little weight The Union's notes were taken by an
employee-negotiator, Mattie Webb, who did not impress me as entirely
competent to perform that function Respondent's bargaining notes were
shown to be a less than complete and accurate version of bargaining table
occurrences
MAGIC CHEF , INC. 383
confer with top management about the matter and he
would then get back to the Union . Ward never did re-
spond and , indeed , the Union never got the 10-cent in-
crease . At a subsequent union membership meeting held
to consider Respondent 's proposal, it was rejected in ac-
cordance with the bargaining committee 's recommenda-
tion . The committee so recommended because of the ab-
sence of a checkoff provision , unsatisfactory economic
proposals , and its problems with the seniority provision
and the bonus system . A strike vote was not taken be-
cause the plant was soon to be shut down for Christmas
vacation . A strike would have cost the membership their
vacation and paid holidays
The parties next met in January 1980 , and continued to
negotiate until early March . At that time , Respondent
made its second "final offer" that , also, did not contain a
checkoff provision . Cubitt said that he could not recom-
mend it to the membership in view of the economic pro-
posals, seniority and bonus system matters , and the ab-
sence of checkoff. The parties were also apart on the
contract expiration date as the Union wanted the agree-
ment to run for 3 years from the date of ratification and
Respondent desired a mid-December expiration date. At
a membership meeting held on 9 March , the company
proposal was rejected and a strike authorization vote was
passed.
Several days later, the Union was notified by Federal
Mediator Maurice Tipple that the Company wanted to
have an off-the-record meeting of the chief spokesmen in
an attempt to avert a strike . The parties met on 14
March at which time the Union agreed to drop wage
and other matters but listed four areas of major concern:
checkoff, expiration date , the bonus system, and a pen-
sion provision . The Union conceded on the bonus system
matter after further explanation by the Company of its
proposal . The Company conceded on the pension point.
It agreed to a checkoff provision provided that the
Union granted a 2-week escape time allowing employees,
during that period , to obtain return of their dues-deduc-
tion authorization cards. The Union accepted that proce-
dure . It was not until the next day , 15 March , at a meet-
ing attended by Bryan , Ward , company attorney Joe
Clark , Cubitt , and Roper , that the parties resolved the
expiration date issue , agreeing to it compromise date of
23 January 1983. The union bargaining committee stated
that it would recommend approval of the agreement and,
on 16 March , it was ratified.
At the time of ratification , some 850 of the 1300 unit
employees had signed dues-deduction authorization
cards. About 50 employees took advantage of the negoti-
ated escape period and withdrew their cards . Thereafter,
during the contract period , few employees took advan-
tage of escape periods , despite frequent written advice
from Respondent as to their right to do so and the
method of accomplishing same . Throughout the term of
the contract , 60 to 65 percent of the unit employees paid
their dues by means of the checkoff system.
In March 1980, when the contract was ratified, union
dues were a flat $ 10.50 per month . In August 1980, the
International Union set dues at twice the average hourly
wage within a plant , effective January 1982, with dues
for 1981 set at a flat rate of $12 per month . During the
summer of 1981, the Union requested of Magic Chef, and
received , the average wage rate at the Cleveland plant,
in order to establish the 1982 dues of the unit employees.
On the basis of the information received from Respond-
ent, those dues were set at $13.30 , as of January 1982.
The Union waived increases for 1983.
b. The "extension" talks
In May 1982 , 8 months before contract expiration,
Foust contacted Cubitt and asked to have an off-the-
record meeting . Two such meetings were held that
month , attended by Foust , Brand , and Cubitt . Roper at-
tended the second meeting only. At those sessions, Foust
stated that Respondent had major corporate decisions to
make by July. One such decision was how to allocate
production of ranges between the City of Industry, Cali-
fornia plant and the Cleveland plant . Foust announced
that Respondent desired a 3-year contract extension at
Cleveland . When Cubitt said that the Cleveland employ-
ees wanted to negotiate contractual changes, Foust
stated that there were incentives for the Union to agree
to an extension . First , Foust said , an extension could halt
layoffs and increase the number of jobs at Cleveland.
Secondly , Foust stated , an extension would enable the
Union to avoid labor problems it might otherwise experi-
ence . In the latter connection , Foust informed the Union
that Respondent had been approached by employees
who desired to have a decertification election and, ac-
cording to Foust, an extension agreement would stop
such a movement. On the other hand , Foust warned,
absent agreement , the Union could expect a decertifica-
tion movement in the fall which , he stated , would re-
ceive the "all out" support of S. B. Rymer Jr., Respond-
ent's chairman of the board. Foust added that Rymer
was not happy with the Union in the first place and that,
in the event of a decertification petition , money would
not be a problem . On the other hand , if an extension
agreement were reached , Respondent would not get in-
volved in a decertification movement . These comments
were repeated by Foust at the second meeting , at which
time Cubitt agreed to allow him to address the Union's
executive board.
Foust and Brand met with the executive board on 10
June 1982. Foust stated that , in the event of an extension
agreement, jobs could go to Cleveland and , also, that
such an agreement would be a way to avoid labor prob-
lems in the fall. The executive board decided to author-
ize exploratory discussions . Thereafter , Foust met with
the Union 's bargaining committee and informed them
that, if an agreement were reached , Respondent would
stay out of any decertification movement . During the
course of subsequent negotiating sessions, Foust repeat-
edly raised the decertification matter and warned that
the Union would have labor problems that fall . Neither
side proposed any changes in the contractual checkoff
provision but Respondent did agree that, if the talks
proved fruitful, it would stop sending letters to employ-
ees explaining how to revoke their checkoff authoriza-
tions . By mid -July, however , the extension talks proved
unsuccessful and negotiations ceased.
384 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
c. The 1982-1983 prestrike negotiations
On 1 November 1982, the Union sent a contract re-
opener notice to Respondent. The Company responded
on 9 November, suggesting that negotiations begin on 8
December 1982. On 15 November, a petition seeking a
decertification election was filed with the Board and,
subsequently, the parties agreed to postpone negotiations
until the Board acted on the petition. The Union advised
the Board that there were, then, 950 unit employees,
rather than the figure of 880 listed in the petition. On 6
December, the Regional Director dismissed the petition
because the signed cards submitted in support of it did
not request that the Union be decertified but, merely,
asked for an election. Respondent and the petitioners
filed requests for review.3
The parties met to begin negotiation of a second con-
tract on 20 December. They agreed that Cubitt and
Foust, as chief spokesmen, would make all official pro-
posals and sign tentative agreements .4 The Union asked
that Respondent put on the table their final proposal by
2 p.m. on 22 January, allowing a 24-hour period before
the Union's ratification meeting set for 2 p.m. on 23 Jan-
uary. At the outset of the meeting, Foust asked the
Union to agree to an immediate decertification election
or, alternatively, to a contract extension until Respond-
ent's appeal of the dismissal of the decertifcation petition
was settled. Cubitt said that the decertification matter
would stand on its own and that this was the time to ne-
gotiate a new contract. Respondent objected, claiming
that the parties would be negotiating an agreement that
might later become null and void. This discussion con-
sumed several hours, until the noon break, when, finally,
Cubitt asked Foust if the Company was refusing to bar-
gain about a new agreement. Foust said no and, follow-
ing lunch, negotiations began. Although the parties
agreed to deal with language items first and economic
items afterward, the Union presented its initial proposals,
which included economic items . The Union proposal
added to article V of the contract, the checkoff provi-
sion, a new section 6, requiring Respondent, annually, to
advise the Union of the average hourly wage rate at the
plant. As noted, this was information already being sup-
plied by Respondent in order to allow the Union to cal-
culate the amount of its dues. As the parties reviewed
the Union's proposal, article by article, Respondent
raised no objection to the new section 6 of the checkoff
article. Likewise, throughout negotiations, Respondent
never stated that it had any concern about that.
The parties met again on 4 January 1983, at which
time the Company presented its noneconomic proposal.
This proposal sought to remove some 150 to 200 em-
ployees from the bargaining unit and to eliminate check-
off. Cubitt stated that an agreement could not be reached
without a checkoff provision. Foust said that Respondent
did not want to be in the position of administering inter-
nal union affairs . Additionally, Foust claimed that Re-
3 On 18 February 1983, the Board reversed the Regional Director's de-
cision, and remanded the case That matter remains pending
4 Throughout the course of negotiations , while other members of the
respective bargaining committees made comments and explaiend propos-
als, Cubitt and Foust did, in fact, make all contract offers.
spondent received complaints from employees whenever
there was a dues increase and that the employees held
Respondent responsible for same. Cubitt answered that
the Union had not received the same complaints and that
the employees were not utilizing the escape periods.5
At meetings held on 7, 11, 12, 13, and 18 January the
major topic of discussion was seniority. Other matters
were also discussed and some agreements were reached.
During a break in negotiations on 18 January , a discus-
sion was held among Cubitt, Foust, International Staff
Representative Gerald Parks, and Respondent's attorney,
Joe Clark. Foust stated that the Union's proposal with
respect to Respondent's safety program was a major
problem. Cubitt answered that the matter was not a
major issue to the Union and that it would not hold up
an agreement. Cubitt added that the Union could under-
stand Respondent's position on safety and that the Union
felt just as strongly about checkoff. Foust said that he
was not authorized to put checkoff on the table.6 Later,
during the bargaining session, the Union withdrew its
proposed changes in the safety language. Cubitt stated
that, under no conditions, would the Union negotiating
committee recommend a contract that did not include
checkoff.
The parties met on 19 January, at which time Re-
spondent presented a complete new language proposal,
which, again , sought deletion of the checkoff article.
With respect to that matter, Foust again stated that Re-
spondent would not be put in the position of being a col-
lection agency for the Union. He claimed that when em-
ployees had dissatisfactions with checkoff, they blamed
the Company instead of the Union. Cubitt said that the
evidence did not bear this out as the Union had not re-
ceived complaints and very few people had withdrawn
their dues-deduction authorizations. Cubitt added that, as
the Union was not seeking a major overhaul of the man-
agement rights clause, the Company should not be at-
tacking checkoff. Clark argued for Respondent that, if
the parties agreed to take checkoff out of the contract,
there would be no need for a nondiscrimination clause as
Respondent would not know who belonged to the
Union.7 Clark also stated that checkoff was costly.8 The
6 Foust testified at trial that Respondent 's real reason for its stated po-
sition on checkoff was to enable it to use that matter as a bargaining tool
to get a favorable contract Thus, he testified , he knew that checkoff was
something that the Union wanted and it is "something that we are not
necessarily that interested in" so there is no reason to grant it until the
Company feels that the time is appropriate There are checkoff clauses in
all of Respondent's contracts with the other unions at other facilities In
addition , at Cleveland , Respondent makes deductions from employee
paychecks for chartable contributions , deposits to the Magic Chef Credit
Union , and for the repayment of loans taken to purchase Magic Chef ap-
pliances and safety equipment
8 Cubitt's testimony concerning this conversation was corroborated by
Parks. Foust , in his testimony , denied stating that he lacked the authority
to negotiate about checkoff For the reasons stated at fn . 2, 1 discredit
Foust's testimony in this regard
4 During the term of the first contract, there was but one discrimina-
tion charge filed , by employee Bill Webb , a steward, and, thus, a known
union adherent In any event , Respondent did not , during later negotia-
tion sessions , make reference to discrimination claims in the context of
discussion about checkoff
8 Respondent did not state at negotiations what, in fact , checkoff cost
MAGIC CHEF, INC. 385
final prestrike bargaining sessions were held on 20, 21,
22, and 23 January. At the meetings on 20 and 21 Janu-
ary, numerous proposals were exchanged and agreement
was reached with respect to the grievance and arbitra-
tion and the bonus provisions. This left as the major un-
resolved issues economics, certain seniority provisions,
unit composition, number of stewards, and checkoff.
On 22 January the parties exchanged new proposals.
Respondent withdrew its proposed unit exclusion, of-
fered a greater number of stewards than previously pro-
posed, and made other noneconomic concessions. At 6
p.m., 20 hours before the Union's scheduled ratification
vote, Respondent made its first economic offer, which,
essentially, would have frozen existing wages and bene-
fits. Foust stated that this was his first offer and not his
best offer and that he was not proposing to increase
wages at that time because there were, still, too many
other items on the table. The offer did not include a
checkoff provision. Rather, Respondent proposed, as a
means of dues collection, that the Union be provided
with a table and a chair, in-plant, I day each month. The
Union could staff the table with a paid representative
and collect dues. Cubitt stated that this was an unwork-
able form of dues collection as the plant was very large
and in three separate locations and the Union would
have to have on hand large sums of money to cash pay-
checks if it collected dues on payday. If not done on
payday, employees might not have sufficient cash with
them.
The parties caucused from 7 to 10 p.m. During that
time, the Union sent a new proposal to Respondent,
through Federal Mediator Maurice Tipple, in which the
Union reduced its economic demands . To highlight the
importance of checkoff, the Union listed it first and un-
derscored it. When the parties met at 10 p.m., Foust de-
livered a new proposal that provided for some increases
in wages and benefits and adhered to the table-and-chair
approach to dues collection. Cubitt again stated that that
could not work in a plant as large as the Cleveland plant;
it would be an administrative nightmare . Foust said,
again , that Respondent did not wish to act as a collection
agency for the Union. Clark stated that the employees
blamed Respondent for everything and asked if the
Union would consider alternatives to checkoff. Cubitt
said that there was a strong relationship between check-
off and the remaining contract issues . Negotiations re-
cessed again and, then, resumed about midnight at which
time Cubitt presented another union proposal that con-
tained reduced economic demands and accepted most of
Respondent's most recent seniority proposals. Unlike the
rest of the Union's proposal, checkoff was listed in cap-
ital letters . After another brief recess, Foust told the
Union that he had gone as far as he was authorized to go
at that time and that he needed to consult with top man-
agement. The parties then agreed to reconvene at 8 a.m.
on 23 January.
Between 7 and 8 a.m . on 23 January, Foust met with
Respondent's chairman of the board, S. B. Rymer Jr. At
8 a.m., negotiations resumed and the Company presented
a proposal containing an increased wage and benefit
package. Checkoff was listed as "to be discussed." Clark
asked if there was any other form of dues collection,
beside checkoff, that the Union would consider, such as
a bank draft system. Cubitt stated that checkoff was the
only workable and suitable arrangement. After a caucus,
the Union represented a new proposal with decreased
economic demands. Cubitt then told Respondent's bar-
gaining committee that "they knew excactly what the
hold up was in the-us moving and we were not in con-
crete that we still had a lot of movement and that they
knew the one thing that was preventing us from moving
off of any of these and they knew what it would take to
get us to come off of these remaining items." Cubitt
asked Foust to put his best offer on the table and stated
that Foust knew what the hold up was. As the negotia-
tors started to leave the room, for a recess, Clark look at
Cubitt and said , "What's checkoff worth to you?" Cubitt
responded, "Put it on the table and I'll show you."9
During the recess, the Union's negotiating committee
discussed their position, in the presence of Mediator
Tipple, and concluded that, if the Company offered an-
other 5- or 10-cent increase in wages, plus checkoff, the
committee would recommend acceptance of the offer.
Cubitt told Tipple to use his discretion concerning the
Union's economic position but instructed the mediator to
inform Respondent that, in the committee's opinion,
there would be a strike if checkoff was not in the final
offer. Tipple left and returned some 20 minutes later. He
told Cubitt, "Bill, you've got a strike on your hands, it
doesn't make any difference what you do, checkoff is not
there." t o
The parties reconvened at 11 a.m. and Respondent de-
livered a proposal labeled as its "BEST OFFER." It
contained an increase from the previous wage offer of 10
cents in the first year and 5 cents in the second year. The
proposal did not contain a checkoff provision. Rather, a
bank draft system was offered under which employees
could authorize their banks or savings and loan associa-
tions to deduct money from their accounts and send it to
the Union in payment of dues. Cubitt objected and point-
ed out this could involve a large number of banks and
that, in any event, most of the employees did not have
bank accounts. Cubitt said that this arrangement could
not work. Foust stated that the Union could have the
bank draft system or the table and chair. Foust further
stated that this was his "best offer under the circum-
stances." After a brief caucus, Cubitt said that the com-
9 In light of Foust's statement to Cubitt, on 18 January , that he, Foust,
was not authorized to put checkoff on the table, I think Cubitt's com-
ment, considered in context, informed Respondent that, if it would place
the subject of checkoff on the bargaining table, then the Union would
show Respondent what it was worth. Cubitt was not asking Respondent
to concede checkoff in advance, but rather, to engage in collective bar-
gaining about it.
10 Foust , Brand , and Ward all testified that the message delivered to
them during the recess, by Tipple, did not contain any mention of check-
off Rather, they claimed, Tipple told them that Cubitt was having "a
hell of a time" with his committee that the committee was "way out in
left field" and still had exorbitant economic demands
I have previously concluded that Foust, Brand, and Ward were not re-
liable witnesses In addition , I note their testimony concerning what was
stated to them by Tipple does not fit easily into the flow of events at the
bargaining table I discredit their testimony I credit Cubitt's corroborat-
ed testimony concerning the instructions that he gave to the mediator I
think it fair to infer, in the absence of credible evidence to the contrary,
that Mediator Tipple delivered the message, as instructed
386 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mittee would recommend that the proposal be turned
down and that, more than likely, there would be a strike.
Cubitt added that there was still movement on the union
side. Foust stated that Respondent's offer was good until
8 p.m. that night. If not accepted by then, it would be
withdrawn, the contract would terminate, and the Com-
pany would cease to honor the employees' checkoff au-
thorizations. The Union withdrew its last offer. The
meeting ended about noon.
At trial, Foust claimed that Respondent's refusal to
concede checkoff during the prestrike period was based
on the wide economic gap that still existed, as reflected
in the last written offers of the parties. According to
Foust, calculations later prepared showed a cost differ-
ence of $10 million in the two proposals. This contention
was neither made to the Union during negotiations, nor
entirely proven at trial. Also during prestrike negotia-
tions, Respondent gave no indication to the Union that
checkoff was available in return for economic conces-
sions. In addition, the $10 million calculation, even if ac-
curate, must be viewed in the context of the significant
progress made by the parties during the 18-hour period
in which economics had been discussed and the oral
statement of Cubitt at the negotiating table and those he
delivered through Tipple, away from the table.
Cubitt conducted the ratification meeting beginning at
2 p.m. on 23 January. He reviewed Respondent's last
offer article by article. Cubitt stated that Respondent's
refusal to grant checkoff was a way to destroy the
Union. Parks spoke to the membership and said that the
employees had been trying to get a union for 17 or 18
years and that, since certification of the Union, in 1979,
the Company had been trying to destroy it. Without
checkoff, Parks said, the Union would not be around
long. The membership voted to turn down the proposal
and to strike.
d. The strike; hiring of replacements; negotiations
The employees struck at 8 p.m. on 23 January, at the
expiration of the first contract. Respondent began to hire
replacements on the morning of 24 January. By 11 a.m.
it had hired some 700 people. In addition, some 400 em-
ployees in the unit at the time the strike started either
did not strike or returned to work several days after the
start of the strike. This resulted in a work force greater
by some 150 than the prestrike complement and the new
work force was, thereafter, reduced by attrition. Con-
trary to the testimony of Foust and Brand, there is sub-
stantial record evidence that Respondent informed the
replacements that they were permanent employees as
early as 24 and 25 January. Also, during the first 2 weeks
of the strike, Respondent's supervisor, Jerry Lyles, su-
perintendent of the finishing department, solicited em-
ployees to sign cards seeking a decertification election. i i
" Lyles' activities in that regard were established by the testimony of
former employees Kimberly Pugh and Carolyn Matthews, disinterested
witnesses who testified in a forthright manner I credit their testimony
over the denial of Lyles whose testimony I found, generally, to be vague
in material respects
A second decertification petition was filed on 4 February
1985.
The first meeting of the parties, after the strike began,
occurred on 4 February. The Union submitted a proposal
that, Foust said, sought more than the Union had asked
for on 23 January. Cubitt stated that, as Respondent had
withdrawn its proposals of 23 January, the Union had
the right to start again. Foust announced that the re-
placements had been made permanent employees and,
further, that Respondent had established a striker rein-
statement plan under which strikers who applied for
work would be placed on a preferential list and brought
back, by seniority, as vacancies occurred within their
classifications. Cubitt stated that the strikers had gone
out as a group and would return as a group.
The Union filed its bad-faith bargaining charges on 11
February. At a negotiation session that day, Respondent
proposed that a wage increase for the unit employees be
effective in April, rather than January, as in its prestrike
proposal. The parties adhered to the striker reinstatement
positions taken on 4 February. Respondent and the
Union met again on 2 March, at which time the Union
announced that it would institute a national boycott of
Magic Chef products made in Cleveland, Tennessee. At
an off-the-record conference of Cubitt and Foust, in the
presence of Tipple, Cubitt told Foust that the strike
should not have occurred as the parties were down to
checkoff and a few small issues that should have been re-
solved. Cubitt stated that, in his opinion, the strike was
entirely over checkoff. Foust answered, stating that he
had not been authorized to put checkoff on the table
then and he was not authorized to do so now. 12
The parties next met on 12 March. Two days earlier,
on Thursday, 10 March, Respondent hired 69 new work-
ers and reinstated 8 strikers. This was the first group
hiring since the beginning of the strike. At the 12 March
meeting , the Union made a new proposal, specifically
conditioned on the reinstatement of all strikers within 1
week of ratification. The proposal was rejected.
Negotiations did not resume until 22 April. One day
earlier , on 21 April, Respondent hired 75 new workers
and reinstated 9 strikers. At the 22 April meeting, the
Union presented another proposal, conditioned on the re-
instatement of the strikers within 2 weeks of ratification.
This proposal removed section 6 from the checkoff arti-
cle, returning that article to that which existed in the
prior contract. As the Union had, again, changed its
method of calculating dues, it no longer needed from Re-
spondent the plant average hourly wage. Cubitt stressed
that the major issue at that time was returning the strik-
ers to work. He stated that, hopefully, if agreement were
reached, the decertification petition, the NLRB charges,
and Respondent's recently instituted lawsuit against the
Union would disappear. Foust asked for time to study
the new proposal and the parties agreed to meet again on
25 April.
At the 25 April meeting, Foust stated that he was en-
couraged as the Union was now ready to agree to the
12 Foust denied that he made the comments attributed to him by
Cubitt His denial is not credited
MAGIC CHEF, INC 387
old contract language on checkoff. He said that if all
other items fell into place, checkoff, standing alone,
would not prevent the parties from reaching an agree-
ment This, of course, represented an entirely new posi-
tion for Respondent. Indeed, at the end of the meeting,
Foust looked at Cubitt and said, "you got something
today that you thought you'd never get."
In the course of the 25 April meeting, Respondent pre-
sented a proposal incorporating its striker rehire plan and
noted that all vacancies had been filled. The Union ad-
hered to its demand that the strikers be returned as a
group. Cubitt stated that reinstatement was the major
issue and that wages were a major problem The parties
did agree that resolution of the other legal matters was
not a condition of settlement.
At a meeting held on 29 April, the parties engaged in
some discussion of economic proposals. The majority of
the time was spent discussing reinstatement, with neither
side yielding from previous positions. Cubitt asked if
there were any jobs available. Foust said no. They
agreed not to meet again until one side or the other
could make major concessions.
On 23 May, Respondent hired 44 new workers and re-
instated 1 striker. It met with the Union on 24 May, to
announce that it would implement its proposed wage in-
crease . Foust, in response to inquiry, again told Cubitt
that there were no available jobs. The parties again
agreed that there would not be another meeting until one
side or the other had major concessions to make.
In mid-July, Cubitt contacted Mediator Tipple and
asked him to arrange a bargaining meeting with Re-
spondent . Tipple called Foust on 12 or 13 July, and a
meeting was scheduled for the morning of 22 July. On
20 July, Respondent hired 43 new workers and reinstated
2 strikers.
Respondent conducts monthly sales, planning, and in-
ventory meetings, referred to as "SPI" meetings, where
decisions on production levels and other matters are
made. These meetings of Respondent's top officials at the
Cleveland plant are normally held about the 15th of each
month and, always, between the 12th and 18th of the
month. However, on 15 July, Respondent scheduled the
July SPI meeting for the afternoon of 22 July. Vice
President of Manufacturing Jerry Ward attended both
the morning bargaining session with the Union, and the
afternoon SPI meeting.
At the 22 July bargaining meeting, Cubitt said that he
wanted to clarify where the parties stood on a contract
and, especially, with respect to the striker rehire plan.
Respondent and the Union then reviewed, article by arti-
cle, Respondent's last proposal. The Union made no
counterproposals but Cubitt had Foust verify that check-
off would not be a problem. The parties engaged in an
in-depth analysis of how the striker rehire plan would
operate and, for the first time, the Union did not take the
position that all strikers must be returned as a group.
Cubitt asked if any jobs were available and Foust said
no Cubitt then asked for a freeze on hiring. Before the
end of the morning session, Foust or Clark asked "are
we nearing an agreement?" Cubitt said, "that's a safe as-
sumption." The brief afternoon session was, as noted, not
attended by Ward who left after the morning meeting in
order to attend the afternoon SPI meeting. At the after-
noon bargaining meeting, the parties engaged in addition-
al discussion about the operation of the striker rehire
plan. Respondent and the Union agreed that they would
meet again on 29 July and that, in the interim, the
Union's bargaining committee would consult with the
Union's executive board. Foust asked that the Union
submit a written proposal at the 29 July meeting.
At the SPI meeting, Respondent decided to increase
production by 15 percent and Ward was instructed to
staff the plant accordingly. Ward testified that he made
no report at the SPI meeting as to the events that morn-
ing at the bargaining session because it was his percep-
tion that no progress had been made, a perception shared
by Foust. The decision to increase production from 2000
units to 2300 units per day was, Ward testified, based on
the incoming order rate, the backlog of unshipped
orders, and Respondent 's new and aggressive marketing
program to increase sales. All the production increase
was projected for the Cleveland plant, with none to
come from the City of Industry plant. It is undisputed
that, thereafter, Respondent never did produce 2300
units per day and that the marketing program failed to
generate the projected number of orders. In October
1983, the production goal was decreased to 2050, where
it remained.
As a result of the decision reached at the 22 July SPI
meeting, Ward decided that 164 additional employees
were needed. The Union was not advised of this fact.
Before the Union and Respondent met again, on 29 July,
161 new workers had been hired and 3 strikers had been
recalled.
Respondent and the Union met, as scheduled, on 29
July. Cubitt asked if the rumors he had heard concerning
hiring were true. Foust said that 164 people had been
hired that week. Cubitt told Foust that he "had com-
pletely blowed [sic] us out of the water" and that the
hiring had killed a settlement. Foust said that the hiring
was to meet production needs. Foust asked for the
Union's written proposal and Cubitt stated that, under
the circumstances, there was no need for it because the
Union had been completely blown out of the water.
Foust, according to his tesitmony, stated that "we came
here today thinking we would have an agreement by
now." Respondent, through Clark, turned the subject of
the meeting to checkoff and requested that the Union get
new dues-deduction authorization cards signed, a sugges-
tion that precipitated a lenghty argument. The meeting
ended without the scheduling of another session.
The final collective-bargaining meeting took place on
29 August. After further discussion of Respondent's out-
standing proposal, including the striker rehire plan, tenta-
tive agreement was reached. It was further agreed that
the Union's unfair labor practice charges against Re-
spondent, the decertification petition, and Respondent's
lawsuit against the Union would stand on their own
merits and be unaffected by the contract settlement. The
Union did agree to end the boycott. Foust told Cubitt
that no jobs were then available. Cubitt again asked for a
hiring freeze and Foust refused.
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent continued to hire new workers until and
including 2 September, the day before the Union's mem-
bership voted to ratify the contract. This despite substan-
tial record evidence that, in the summer months, and
therafter, many plant employees spent significant
amounts of time either idle or in performance of nonpro-
ductive chores. Describing the apparent overstaffing at
the plant, one witness testified that there were "helpers
helping helpers." In addition, there is evidence that,
during this period, Respondent relaxed enforcement of
its work rules.
In 1983, from 1 January through 22 July, Respondent
posted only 100 jobs for bidding by plant employees.
However, between 25 July and 27 July, 23 jobs were
posted. From 29 July, through 3 September, Respondent
posted and filled another 100 jobs. Employee Carlon
Davis, a striker who abandoned the strike and returned
to work, in August 1983, testified that, late in August, he
discussed a personnel problem with the plant director of
human resouces, Larry Brand, in the presence of his as-
sistants, Judson Vines and Don Baldry. Davis testified
that Brand talked about the strikers and said:
Well, I'll tell you right now we don't owe those
god damn son-of-bitching bastards nothing out
there. Carlon, we owe it to people like you and
these people that crossed the picket line these jobs.
We've got to get them filled up. You know the dam
is going to break and we are going to have more
people in here than we can take care of.
Brand and Vines, in their testimony, confirmed the fact
of the meeting, but denied that Brand made the state-
ments attributed to him by Davis. I found Davis a be-
lievable witness who testified in a clear and forthright
manner. As noted at footnote 2, I did not find Brand to
be a credible witness. Vines was not convincing on this
point and his testimony suggests that he may not have
been present for the entire conversation. I find that the
conversation occurred as related by Davis.
At the ratification meeting held on 3 September,
Cubitt explained to the membership that the proposed
strike settlement was without prejudice to the unfair
labor pracitce charges filed against Respondent. He em-
phasized that it was the Union's view that the strikers
were unfair labor pracitce strikers. The agreement was
ratified by a vote of 284 to 119.
From 20 July through 2 September 1983, Respondent
hired or recalled 255 employees, up until the date of rati-
fication. Thereafter, not a single former striker was re-
called during September, October, or November of that
year. The Union filed grievances that led to the recall of
the first four former strikers on 19 December. During
the period 3 September 1983 to January 1985, 217 unit
employees left Respondent's employ, but only 44 strikers,
of some 500 who sought reinstatement, were recalled.
Thus, after increasing its production goals and hiring 164
employees, at the end of July 1983, Respondent, post-
strike, reduced its production goals and decreased its
staff by some 173 employees. Staff reduction was by at-
trition. Despite its reduced production goals, Respondent
did not lay off any workers. Had it done so, the laid-off
workers, under the terms of the contract, would, gener-
ally, have fallen below the former strikers on the rein-
statement list, for seniority reasons.
According to Cubitt's corroborated testimony, at a
third-step grievance meeting held on 9 December 1983,
he complained about Respondent's failure to recall strik-
ers to replace employees who had left Respondent's
employ, that is, Respondent's failure to fill vacancies.
Cubitt said that he did not understand why, for months
on end during the strike, there was a need to hire so
many people but, once the contract was signed, there
was no need to fill vacancies. Brand said that Respond-
ent had overhired in July and August, creating an excess
of employees in certain classifications. These people,
Brand said, were being used to fill jobs as they became
available.13
As noted, after grievances were filed, Respondent, on
19 December, recalled the first four former strikers,
Larry Kyle, Roger Silvers, Dennis Goforth, and Daniel
Pierce. They were required to undergo a day-long orien-
tation session. According to the credited, corroborated
testimony of Kyle, Brand spoke to this group and,
during his talk, Kyle asked if Respondent would be
bringing back other former strikers. Brand said yes, a
few, "through the same procedure that y'all four came
back." Kyle asked if, by the same procedure, Brand
meant grievance procedure. Brand replied yes.14
e. Conclusions with respect to Respondent's bargaining
conduct and the hiring of replacements
The statutory duty to bargain in good faith obligates
each party to the collective-bargaining process to make
"a serious attempt to resolve differences and reach a
common ground " NLRB v. Insurance Agents, 361 U.S.
477 (1960). A party may not approach the bargaining
table with a closed mind, but it is not bound to yield any
position fairly maintained. As the Act does not regulate
the substantive terms of a contract, the Board may not,
directly or indirectly, compel concessions. NLRB v.
American National Insurance Co., 343 U.S. 395 (1952).
The Act does, however, prohibit a party from taking a
position for the purpose of preventing agreement. Like-
wise, when one party to negotiations advances a propos-
al, not for legitimate reasons, but for the purpose of de-
stroying or crippling the other party, the statutory bar-
gaining obligation is not met. Roanoke Iron & Bridge
Works, 160 NLRB 175 (1966), enfd. 390 F.2d 846 (D.C.
Cir. 1967). A party may take a position in order to gain
bargaining leverage but, if it "is prepared to make a con-
cession, it is evidence of bad faith if it withholds that fact
to the extent of permitting negotiations to founder and a
strike to ensue, without ever imparting this possibility to
the other party." Cincinnati Cordage & Paper Co., 141
NLRB 72 (1963).
In this case, Respondent contends that its objections to
checkoff, as set forth at the bargaining table, were assert-
13 Brand's contrary testimony is not credited See in 2 William
Gibson, Brand's assistant, also testified about this discussion but lacked a
clear recollection of the conversation
14 To the extent that Brand's testimony is inconsistent with the forego-
ing, it is not credited
MAGIC CHEF, INC. 389
ed in good faith. To assess the validity of that position,
attention must be paid to its overall pattern of conduct.
In that connection , Respondent's claims of good faith are
significantly undercut by evidence of its repeated threats,
during the summer of 1982, to fund and support a decer-
tification campaign and by its conduct, immediately after
the strike began, in soliciting signatures in support of a
decertification petition.
At the bargaining table, Respondent consistently as-
serted two grounds of opposition to checkoff, namely,
that it did not wish to act as a collection agency for the
Union, and that it had received complaints from employ-
ees about checkoff. The first ground is difficult to under-
stand in view of the fact that there are checkoff clauses
in all of Respondent's contracts with other unions at
other facilities. Moreover, at Cleveland, Respondent
makes deductions from employee paychecks for charita-
ble contributions, deposits to the Magic Chef Credit
Union, and for the repayment of loans taken to purchase
Magic Chef appliances and safety equipment. Respond-
ent advanced no evidence, either at the bargaining table
or at trial , in support of the second ground, employee
complaints . Rather, as shown in the statement of facts,
the record evidence fairly supports the inference that the
unit employees, who had been tutored by Respondent as
to the means of withdrawing their dues-deduction au-
thorizations , did not complain about checkoff, either to
the Union or to Respondent. At the 19 January bargain-
ing session , Respondent briefly asserted cost and the pos-
sibility of discrimination claims as reasons for its opposi-
tion to checkoff. Yet, again, it advanced no supporting
data. Rather, in light of the history under the first con-
tract, it is clear that Respondent's experience would
hardly warrant an opposition to checkoff so as to better
enable it to defend against discrimination claims.15 At
the 25 April bargaining session, Respondent sought to
explain its previous opposition to checkoff on a new and
different ground, namely , the fact that, theretofore, the
Union had sought to add a new section 6 to the checkoff
article as it existed in the first agreement . Yet, as shown
in the statement of facts, that section merely sought to
codify the practice of the parties during the term of the
old agreement under which Respondent, annually, sup-
plied the Union with the average hourly wage at the
plant . During all the prestrike discussions about checkoff,
Respondent never once claimed that it had a difficulty in
that regard . In light of the above, and in consideration of
Foust's testimony that checkoff is "something that we
are not necessarily that interested in," I conclude that
Respondent entertained no real and legitimate opposition
to checkoff and that explanation for its bargaining con-
duct lies elsewhere. Indeed, at trial, Foust conceded as
much as he testified, essentially, that the real reasons for
Respondent's position were not those that it asserted at
the bargaining table but, rather, its desire to use checkoff
as a bargaining tool. 16
15 Cf American Thread Co, 274 NLRB 1112 (1985)
16 Seemingly, Respondent 's offer of the table and chair and of a bank
draft system , as alternatives to checkoff, were consistent with that ap-
proach, as Cubitt explained , and Respondent knew, that those were not
workable means of dues collection at the Cleveland plant
Respondent's principal contention that it was using
checkoff as a bargaining tool in order to obtain a favor-
able contract simply flies in the face of the record evi-
dence concerning its conduct at and away from the bar-
gaining table. During negotiations, prior to 25 April, Re-
spondent never once gave indication to the Union that
checkoff was available in return for economic conces-
sions. Respondent did the opposite. It informed the
Union that its negotiators were not authorized to bargain
about checkoff. Within hours of the strike deadline, Re-
spondent learned from Mediator Tipple that the Union
would settle for a small economic increase, plus check-
off. The Company responded to that information by of-
fering the economic increase and denying checkoff.
Before negotiations ended on 23 January, Cubitt repeat-
edly told Foust that Respondent knew what the "hold
up" was and that the Union stood ready "to come off of
these remaining items" in return for checkoff. Yet,
checkoff was not forthcoming. If, as it claims, Respond-
ent stood ready to trade checkoff in return for other con-
cessions, it carefully hid that possibility as it permitted
negotiations to founder and a strike to ensue over the
checkoff issue. It maintained an adamant refusal to put
checkoff on the bargaining table until 25 April, 3 months
after the strike started, and at a time when another issue,
reinstatement of the strikers, had displaced checkoff as
the main issue between the parties.
I find and conclude, as alleged in the complaint, that,
during the 1982-1983 negotiations, Respondent violated
Section 8(a)(5) of the Act by failing and refusing to bar-
gain in good faith. It did not use checkoff as a bargaining
tool, but, rather, it refused to put checkoff on the bar-
gaining table in order to frustrate agreement and precipi-
tate a strike. As the strike was, in substantial part, caused
by Respondent's unfair labor practices, I further con-
clude that the strikers were unfair labor practice strikers.
Respondent further violated the Act when, on 4 Febru-
ary, Foust announced that the unfair labor practice strik-
ers had been permanently replaced. That announcement.
demonstrably, prolonged the strike.
It is difficult to read the record evidence concerning
the 22 July bargaining session without concluding that
the Union stood ready to capitulate, that is, to accept
Respondent's last offer, including the striker rehire plan,
and that it communicated that position to Respondent.
Indeed, at the meeting, after Respondent's last proposal
was reviewed in depth, Respondent asked if agreement
was near and Cubitt said that "that's a safe assumption."
When the parties recessed negotiations, until 29 July, so
as to allow the Union's bargaining committee to consult
with its executive board, agreement was at hand and Re-
spondent knew it. That is amply demonstrated by Foust's
comment at the 29 July meeting that Respondent "came
here today thinking we would have an agreement by
now." Between the 22 and 29 July meetings, Respondent
suddenly and secretly increased its production goals and
hired 161 new workers. Yet, it never produced at the
level of its new goals and, shortly thereafter, it aban-
doned those goals. It retained the new employees, de-
spite a lack of work for some or all of them. Indeed, Re-
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent continued to hire until the day preceding con-
tract ratification.
These circumstances are, to say the least, cause for
grave suspicion that Respondent, between 26 July and 2
September 1983, hired workers for the purpose of elimi-
nating the reinstatement rights of the strikers, but, far
more than suspicion is warranted in light of the state-
ments of the plant director of human resources, Larry
Brand , made in late August and in mid -December. Late
in August, preceding ratification, Brand told Carlon
Davis that Respondent was in a rush to fill jobs because
"the dam is going to break." In December, Brand admit-
ted to union representatives that the reason that Re-
spondent was not replacing workers who left its employ
was because Respondent had excess employees, due to
overhiring in July and August. I find and conclude that
Respondent hired some 183 employees, from 26 July to 2
September 1983, in order to eliminate the reinstatement
rights of the strikers, in violation of Section 8(a)(3) of the
Act. The hiring caused a prolongation of the strike. Re-
spondent further violated Section 8(a)(3) of the Act by
failing and refusing to reinstate the unfair labor practice
strikers following their unconditional offer to return to
work made on 3 September 1983.17
2. Dorothy Williamson18
Williamson was employed by Respondent from Octo-
ber 1968 until June 1969, and, again , from June 1970,
until she terminated her employment on 30 April 1983.
For the 10- to 12-year period preceding the strike, she
worked on the first shift as a production checker or
timekeeper in the enamel department. She performed her
duties under the supervision of the department superin-
tendent, Jerry Lyles, and she shared an office with him,
in the east plant, which was also utilized by other super-
visors. Williamson was responsible for the time and pro-
duction records of some 150 enamel department employ-
ees who worked in the east and west plants. She assigned
clock numbers, picked up timecards, recorded employee
work hours, verified assignments , calculated bonuses,
filled out bonus sheets and delivered them for processing,
collected and delivered mail and supplies, and ran er-
rands. Williamson's duties required that she make fre-
quent trips between the east and west plants, which are
about 300 yards apart, as well as to the production lines
and the main office, including the payroll and IBM de-
partments. Also, she made stops at the human resources
department, the credit-union, and the first aid office. In
addition to the work-related conversations than she held
with the plant supervisors and the office employees, Wil-
liamson , with the knowledge of the supervisors, includ-
11 There is no contention that the reinstatement rights of the unfair
labor practice strikers were waived by the contract settlement, including
the sinker rehire plan, since , as shown in the statement of facts, those
rights were expressly preserved
18 The factfindings contained in this section are based, primarily, on
the testimony of employee Dorothy Williamson who testified in a clear
and cohesive manner and impressed me as a truthful witness I have not
relied on the testimony of Williamson 's supervisor , Jerry Lyles, superin-
tendent of the finishing department , whose testimony I found, alternately,
vague and improbable For the reasons stated at fn 2, 1 have accorded
little weight to the testimony of the plant Director of Human Resources
Larry Brand
ing Lyles and Brand, and often in their presence, en-
gaged in frequent nonwork-related discussions with pro-
duction and office employees as she moved about the
plant in the performance of her duties. Before the strike,
she was also responsible for maintaining a list of enamel
department employees, including names, clock numbers,
job classifications, hire dates, and telephone numbers that
were used by the supervisors to contact employees at
home.
While Williamson was not a unit employee, her sister,
brother, and brother-in-law were in the bargaining unit
and were members of the Union who participated in the
strike Her situation was not unique in that regard as
other of Respondent's employees and supervisors, who
worked during the strike, had relatives who were strik-
ers. In any event, after honoring the strike during its first
2 days, 24 and 25 January, Williamson went to the plant
very late in the day on 25 January, on learning that, if
she did not report that day, her job would be gone. She
saw Lyles who welcomed her back and told her that Re-
spondent wanted "Company people 100%."
During the course of her first days at work after the
start of the strike, Williamson went to the work stations
of the replacement employees and obtained their names,
social security numbers, and job classifications, and she
assigned clock numbers to them. Thereafter, Williamson
went about the performance of her regular duties and the
additional tasks required because of the presence of an
almost entirely new work force.
On Monday, 7 February 1983, Lyles told Williamson
to get the employee list up to date. Thereafter, William-
son compiled a new list of working employees in the de-
partment, including names, clock numbers, job classifica-
tion, and hire dates.19 She gave it to Lyles and explained
that she had not had time to obtain the telephone num-
bers of the replacement employees. Lyles said that the
supervisors would get that information and he took the
list and put it on his desk. Williamson never saw the list
again and she was never advised that it was missing.
Williamson had a conversation with replacement em-
ployee Raymond Morgan on 17 February. She learned
from Morgan, who was working in the assembly depart-
ment, that he had been solicited, while working, to sign a
card seeking a decertification election. Williamson asked
Morgan to give a statement to the Union about that, and
she handed him a slip of paper containing her sister's
name and telephone number She told Morgan that he
could call her sister and arrange to give a statement.
Later that same day, Lyles met with Williamson and
told her that Brand had advised him that Williamson had
been talking to people about the Union. Lyles said that
the Company was concerned that she was giving infor-
mation to people engaged in misconduct. He stated that
he was going to put restrictions on her and that she
could no longer go to the personnel office. Lyles further
stated, "Well, from now on Dorothy, I have to know
where you are at, where you are going, what time you
will be back, what route you will be taking . . . . I have
to know when you go to the bathroom, when you will
18 The list did not contain employees' home addresses
MAGIC CHEF, INC 391
be back." Lyles told Williamson that she was not to talk
to anyone and that Brand had set the rules and would be
watching her because she had been talking about the
Union. Lyles further stated that he knew that members
of Williamson's family were on strike and that the Com-
pany would be watching her.
On 18 February, Williamson met with Brand to ask
why she had been placed on restriction. He said, "Well
Dorothy, we have reason to believe that you're giving
information to the Union." Brand further told her that he
had talked to people and, as she had family in the Union,
it was better to restrict her from going to places and
talking to people. He stated that he, Brand, had told
Lyles to instruct supervisors to keep an eye on William-
son and not let her talk to anyone.
The restrictions were, thereafter, strictly enforced.
When Williamson needed to go anywhere in the plant,
she had to wait for Lyles to come to the office so as to
request his permission to leave. She was required to tell
him what route she would take, and where she would be
at any given moment in time. When at the west plant,
she would have to call him at the east plant to request
permission to return. If Lyles was not available when she
called, she would have to sit and wait at the west plant
until she could reach him. Likewise, she was not permit-
ted to go to the bathroom without first informing Lyles.
Williamson testified that the restrictions upset and hu-
miliated her. Clearly, they interfered with her ability to
do her job.
About 1 week later, Lyles told Williamson that there
would be additional restrictions and that she was to
cease taking work to the payroll department, a task
thereafter performed by another employee. Also, she was
not to go to IBM or engineering. Lyles said that an em-
ployee had worn a union hat on the production lines that
day and the Company thought that Williamson was
behind it.
In March, after Williamson brnefly spoke to another
employee, Lyles told her that "I told you not to be talk-
ing to anyone." He further stated that the Company was
watching her and she was to keep her mouth shut and
not talk to people. Thereafter, Williamson testified, other
employees would not speak to her
On 29 April, Lyles told Williamson that Respondent
and the Union were at an impasse and that the strikers
would not be back. This caused Williamson to lose hope
that the strike would be settled and the restrictions lifted.
On 30 April, she terminated her employment, telling
Lyles, "Jerry, I can't take it anymore . . . I've had it
.. . The restrictions, just everything on me . . . The
way y'all treated me, the way you're doing me . . . I've
not done anything that I'm ashamed of . . . you won't
ever relieve the restrictions . .. I'm quitting work and
I'm going to stay home." Lyles told her that she would
be better off that way as "you've been marked here."
She again stated that she could not take the treatment
any longer.
At trial, Williamson credibly denied that she ever
passed the employee list or any other documents or con-
fidential information to the Union or to individual strik-
ers. Neither Brand nor Lyles ever accused her of taking
the employee list. Following 30 April, Williamson sought
other employment and noted as her reason for leaving
Magic Chef that she wanted a better job. Prospective
employers questioned why she had quit after 14 years of
employment. Thereafter, Williamson told prospective
employers that she had left Magic Chef to stay home
with her children. In this connection, it is noted that Re-
spondent listed on Williamson's termination slip that her
reason for quitting was to enable her to stay home with
her children. Williamson, in her testimony, denied that,
pointing out that her children were of school age and ar-
rived home from school about the same time that she,
Williamson, normally came home from work.
The testimonies of Brand and Lyles establish that the
impetus for the restrictions placed on Williamson came
from Brand . According to Brand's testimony, there were
two reasons for restricting her, to stop her from roaming
about the plant and to safeguard confidential information.
With respect to the first matter, Brand testified that,
during the first 2 weeks of the strike he had personally
observed Williamson moving about the areas of the plant
and spending an undue amount of time talking to people
in the human resources department However, later in
his testimony , Brand claimed that he did not know how
production checkers perform their duties and could not
state that Williamson was going about the performance
of her job in a different manner than before the strike.
Lyles, in his testimony, conceded that Williamson's job
duties required her to move from place to place about
the plant. Regarding the second matter, Brand testified
that, after 2 to 3 weeks of the strike, he had noticed that
an undue number of people working in the enamel de-
partment had been victims of acts of violence. Later, he
learned that the employee list prepared by Williamson
was missing. On 17 February, Brand claimed, he was
told by employee Morgan that Williamson had told him
that the Union had his telephone number. Brand formed
the belief that Williamson had given the employee list to
people outside the Company. Nonetheless, after Lyles
prepared a new list, he kept it in an unlocked drawer in
his desk to which Williamson and others had access.
Indeed, the restrictions imposed by Respondent were not
designed to, and did not serve the purpose of, containing
her access to confidential employee information.
Brand was unable to satisfactorily explain the basis of
his conclusion that an undue number of enamel depart-
ment employees had been victimized. Neither he nor
Lyles could explain how they reached the conclusion
that Williamson had pilfered the list that she had earlier
turned over to Lyles. As to the matter of Morgan's
home telephone number, that employee worked in the
assembly department and, therefore, neither his name nor
telephone number would have appeared on the list of
enamel department employees in question. Respondent
did not restrict other production checkers and did not
place restrictions on other employees who had relatives
on strike.
I conclude that the reasons advanced by Respondent
to explain the restrictions placed on Williamson are pre-
textual. As Lyles informed Williamson, shortly after her
conversation with Morgan, that restrictions were being
placed on her because she had been talking to people
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
about the Union, I further conclude that the restrictions
were , in fact , in reprisal for her union activities . The re-
strictions were designed to cause , and did cause, Wil-
liamson to experience continual humiliation and to
render her unable properly to perform her job. By 30
April , the unrelieved restrictions forced her resignation.
I find and conclude that , on 30 April 1983 , Williamson
was constructively discharged because of her union ac-
tivities, in violation of Section 8(a)(3) of the Act. Re-
spondent further violated the Act when , on 17 February
1983, it imposed restrictions on her because she had
talked to an employee about the Union . Respondent,
through Lyles and Brand , violated Section 8(a)(1) of the
Act by telling Williamson that Respondent would be
watching her because she had been talking about the
Union.
3. The remaining 8(a)(1) allegations
I find and conclude , as alleged in the complaint, that
Respondent, by its plant director of human resources,
Larry Brand , violated Section 8(a)(1) of the act by in-
forming employee Carlon Davis, in late August 1983,
that Respondent would fill jobs before the dam breaks,
that is , before the strike is settled and the strikers offer to
return to work ; by telling employees , in December 1983,
that Respondent had overhired during the strike and,
thus, would not recall former strikers to fill apparent va-
cancies ; by informing employees, in December 1983, that
former strikers would not be reinstated except through
the grievance procedures . All these statements made
clear to employees that Respondent would impose a pen-
alty, loss of job rights , on those who engaged in the
strike.
There is uncontradicted record evidence that Re-
spondent allows its employees to talk among themselves,
while working , about any subject matter . Carlon Davis
testified that , on 13 August 1983, the day he abandoned
the strike and returned to work he was approached
during the workday by Supervisor Avery Johnson. Ac-
cording to Davis ' testimony , Johnson stated that he,
Johnson, had been told by certain employees that Davis
was talking about the Union . Johnson told Davis that
Davis knew what could happen if he did this on compa-
ny time . Johnson, in his testimony, presented an entirely
different version of this conversation . Thus, the supervi-
sor testified, the conversation occurred a few days after
Davis ' return and was prompted by the fact that Johnson
had received complaints from employees that Davis was
harassing them and calling them "scabs." Johnson testi-
fied that he told Davis that he, Johnson , was afraid that
a fight might break out and someone might be fired.
Johnson 's testimony , that he had received information
that an individual who had abandoned the strike and re-
turned to work was calling his coworkers "scabs," is im-
probable . Davis presented the more believable version of
the conversation, and I credit his testimony in that
regard . I find that Respondent, through its supervisor,
Avery Johnson , violated Section 8(a)(1) of the Act by
threatening employee Carlon Davis with reprisals if
Davis talked to his fellow employees about the Union.
Employee Larry Davis , Carlon 's brother , testified that,
summoned to appear in Brand's office. When Davis re-
ported , he was directed to the human resources auditori-
um, which is frequently used for meetings, where Re-
spondent 's attorney , Carl Trieshmann was waiting to see
him. Trieshmann gave Larry Davis a piece of paper stat-
ing that , as an attorney for Magic Chef, he, wanted to
speak to Davis in connection with the attorney's trial
preparation . The statement emphasized that it was up to
the employee to decide whether to participate in the
interview and that the employee had the right to termi-
nate the conversation at any time . The statement further
advised the employee that neither reward nor punish-
ment would flow if the employee aided, or refused to
aid, the attorney . After Davis read the statement , Triesh-
mann stated , orally, that the interview was strictly vol-
untary . He told Davis that he wanted to see the affidavit
that the employee had furnished to the Board . Davis said
no. Trieshmann asked if Davis would bring it to the at-
torney's motel room . Davis again said no . Trieshmann
said that he wanted to see what was in the affidavit so
that he would not have to go to trial blindfolded. Davis
again refused to furnish the affidavit and told the attor-
ney that he was leaving. Carlon Davis testified about a
similar incident , about the same time , between himself
and Trieshmann, and he , too, refused to give Trieshmann
his affidavit.
As Trieshmann provided repeated assurances to the
Davis brothers that any cooperation they might give was
voluntary and that there would be no reprisals if they
chose not to cooperate and as the Board , apparently, no
longer regards the request to see an affidavit as per se
violation of the Act,20 I conclude that the complaint al-
legation in this regard should be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above , have a close , intimate, and
substantial relationship to trade , traffic , and commerce
among the several States and tend to lead to labor dis-
putes burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practice conduct in violation of Section
8(a)(5), (3 ), and (1) of the Act, I shall recommend that it
be ordered to cease and desist therefrom and to take cer-
tain affirmative action necessary to effectuate the policies
of the Act.
CONCLUSIONS OF LAW
1. Respondent Magic Chef, Inc. is an employer en-
gaged in commerce , and in operations affecting com-
merce, within the meaning of Section 2(2), (6), and (7) of
the Act.
several days before the trial began in this matter , he was 20 See Dayton Typographical Service, 273 NLRB 1205 (1984)
MAGIC CHEF, INC. 393
2. International Molders and Allied Workers, AFL-
CIO-CLC and its Local Union No. 48 are labor organi-
zations within the meaning of Section 2(5) of the Act.
3. All production and maintenance employees em-
ployed by Respondent at its Cleveland, Tennessee facili-
ty, and employees of the repair parts section of the
Cleveland service department, excluding all office cleri-
cal employees, technical employees, professional employ-
ees, truckdrivers, guards, and supervisors as defined in
the Act, constitute a unit approprial a for the purpose of
collective bargaining within the meaning of Section 9(b)
of the Act.
4. At all times material , the Union has been, and is
now, the exclusive representative of all employees in the
aforesaid bargaining unit for the purposes of collective
bargaining within the meaning of Section 9(a) of the Act.
5. By refusing to bargain in good faith with the Union,
as the exclusive representative of the bargaining unit em-
ployees, concerning rates of pay, wages, hours, and other
terms and conditions of employment, Respondent has en-
gaged in unfair labor practice conduct within the mean-
ing of Section 8(a)(5) of the Act.
6. The strike that commenced on 23 January 1983, was
an unfair labor practice strike from its inception.
7. By its announcement on 4 February 1983, that it
had hired permanent replacements for the unfair labor
practice strikers, Respondent has engaged in unfair labor
pracitce conduct within the meaning of Section 8(a)(1) of
the Act and caused a prolongation of the strike.
8. By constructively discharging Dorothy Williamson
on 30 April 1983, Respondent has engaged in unfair
labor practice conduct within the meaning of Section
8(a)(3) of the Act.
9. By hiring employees beginning 26 July 1983
through 2 September 1983, in order to discriminate
against its striking employees, Respondent has engaged
in unfair labor practice conduct within the meaning of
Section 8(a)(3) of the Act and caused a further prolonga-
tion of the strike.
10. By refusing to reinstate unfair labor practice strik-
ers on their unconditional application for reinstatement
on 3 September 1983, Respondent has engaged in unfair
labor practice conduct within the meaning of Section
8(a)(3) of the Act
11. By threatening employees with loss of jobs because
they participated in a strike, Respondent has engaged in
unfair labor practice conduct within the meaning of Sec-
tion 8(a)(1) of the Act.
12. By threatening employees with reprisals if they
speak to other employees about the Union, Respondent
has engaged in unfair labor practice conduct within the
meaning of Section 8(a)(1) of the Act.
13. By imposing restrictions on employees because of
their union activities, Respondent has engaged in unfair
labor practice conduct within the meaning of Section
8(a)(1) of the Act.
14. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act. .-
[Recommended Order omitted from publication.]