Mohawk Liqueur Co.

National Labor Relations Board - Board Decisions

Dec 31, 1990

300 N.L.R.B. 1075 (N.L.R.B. 1990)

1075
300 NLRB No. 146
MOHAWK LIQUEUR CO.
1 The judge found that the unfair labor practice strike, which commenced
on or about June 1, 1987, converted to an economic strike about August 3.
We agree. The General Counsel and the Charging Party except, arguing that
the unfair labor practice strike remained as such after August 3 because (1)
the Respondent had not, in attempting to remedy its earlier unlawful failure
to pay the COLA increase, satisfied the standards set forth in Passavant Me-
morial Area Hospital, 237 NLRB 138 (1978), for remedying unfair labor prac-
tices, and (2) even assuming that the parties were at lawful impasse on and
after August 3, the Respondent had failed to restore, at least initially, the con-
ditions existing prior to its unlawful June 1 implementation of its final offer.
The General Counsel and the Charging Party contend that the Respondent’s
failures in these two respects served to prolong the strike.
We reject their first argument for the reason set forth by the judge. Their
second argument was not made to the judge, and thus it is questionable wheth-
er it may be considered at this time. (At the hearing the General Counsel and
Charging Party contended that what concerned the strikers and prolonged the
strike was the Respondent’s alleged unlawful refusal to supply certain informa-
tion. This separate 8(a)(5) allegation was dismissed by the judge, and no ex-
ceptions have been filed to that dismissal.) Even assuming that the second con-
tention is timely raised, however, we find that the General Counsel failed to
establish a nexus between the Respondent’s continuing implementation of its
final offer and the prolongation of the strike.
2 The complaint also alleged that the Respondent violated Sec. 8(a)(1) by
failing to reinstate and thereafter discharging six other employees because of
their strike activities. The judge recommended that these complaint allegations
be dismissed. No exceptions were filed to the judge’s recommendation con-
cerning these allegations.
3 It is unclear to what extent the judge actually relied on NLRB v. Thayer
Co., supra, to arrive at her determination that the Respondent violated Sec.
8(a)(1) of the Act by failing to reinstate, and discharging, Witmer. Basically,
under Thayer, to determine whether an employee’s misconduct forfeits that
employee’s right to reinstatement, the employer’s unfair labor practices (that
may have provoked the strike) are balanced against the gravity of the striker
misconduct. In Clear Pine, supra, the Board plurality opinion rejected this doc-
trine, but there was no holding on the issue because the vote was split 2–2
Continued
Mohawk Liqueur Company and General Industrial
Employees Union, Local 42, Distillery, Recti-
fying, Wine and Allied Workers’ International
Union, AFL–CIO. Cases 7–CA–27022, 7–CA–
27165, 7–CA–27214, 7–CA–27461, and 7–CA–
27592
December 31, l990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On March 8, 1989, Administrative Law Judge
Arline Pacht issued the attached decision. The General
Counsel and the Charging Party filed exceptions and
briefs in support. The Respondent filed exceptions and
a brief in support and an answering brief in response
to the General Counsel’s and the Charging Party’s ex-
ceptions and briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions only to the extent consistent with this Deci-
sion and Order, to modify the recommended remedy,
and to adopt the recommended Order as modified.
The complaint alleged, inter alia, that the Respond-
ent violated Section 8(a)(1) of the Act by failing to re-
instate and thereafter discharging employee Mary Lou-
ise Witmer as a result of her participation in strike ac-
tivity.2 The judge found the violation as alleged, and
the Respondent excepts. We find merit in the Respond-
ent’s exception.
In considering the complaint allegation regarding
Witmer, the judge was guided by GSM, Inc., 284
NLRB 174 (1987), and Clear Pine Mouldings, 268
NLRB 1044 (1984), in light of the balancing doctrine
as articulated by the First Circuit in NLRB v. Thayer,
213 F.2d 748 (1st Cir. 1954). The judge found that,
while on picket duty, Witmer threw stones or pebbles
at job applicant Scott Scribner’s car as he drove
through the picket line, causing $131 in damage. The
judge concluded that Witmer’s ‘‘conduct comes within
the type proscribed in GSM, Inc.’’ Nonetheless, the
judge concluded that, because the Respondent had pro-
vided no evidence which indicated that Witmer’s mis-
conduct actually intimidated Scribner, or any other em-
ployee, the Respondent had no lawful reason to deny
Witmer reinstatement. Thus, the judge found that the
Respondent violated Section 8(a)(1) by failing to rein-
state and by discharging Witmer. We do not agree.
In Clear Pine Mouldings, supra, the Board ad-
dressed the question of what test should be applied in
determining whether an employer may refuse to rein-
state a striker based on alleged strike misconduct.
There, the Board stated that the test is ‘‘whether the
misconduct is such that, under the circumstances exist-
ing, it [the misconduct] may reasonably tend to coerce
or intimidate employees in the exercise of rights pro-
tected under the Act.’’ Id. at 1046, citing NLRB v.
W. C. McQuaide, Inc., 552 F.2d 519, 528 (3d Cir.
1977). We find, as indeed the judge found, that
Witmer’s stone-throwing conduct which caused $131
damage to an automobile was the sort of misconduct
which may serve as a ground for discharge under
Clear Pine and GSM, Inc.
In concluding that the Respondent was obligated to
reinstate Witmer, the judge applied the Clear Pine
standard to examine Witmer’s misconduct, but in
doing so relied on the reactions of particular employ-
ees. That was error. The Clear Pine standard is an ob-
jective one. It does not call for an inquiry into whether
any particular employee was actually coerced or in-
timidated. Rather, the test is applied to determine
whether the conduct at issue would reasonably tend to
coerce or intimidate an individual faced with such con-
duct. Under that test, we find, contrary to the judge,
that Witmer’s action provided a basis for a lawful re-
fusal to reinstate because such stone throwing, under
all the circumstances, would reasonably tend to intimi-
date employees in the exercise of their protected
rights.3
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on this point. See also Aztec Bus Line, 289 NLRB 1021, 1025 (1988). Assum-
ing arguendo that the Thayer doctrine should be applied in this case, we none-
theless find that the Respondent did not violate the Act in regard to Witmer.
The Respondent’s unfair labor practices were not of an egregious nature that
could be deemed to have provoked, or could justify, Witmer’s stone-throwing
misconduct. Chairman Stephens would not apply the balancing test as set out
in Thayer, although he agrees that immediate provocation must be considered
in judging whether a particular action amounts to misconduct that would jus-
tify denying reinstatement.
1 All dates occurred in 1987 unless otherwise noted.
Thus, as a direct result of her picket line mis-
conduct, Witmer has forfeited her right to reinstate-
ment. We reverse the judge in this respect and find
that the Respondent’s failure to reinstate Witmer did
not violate Section 8(a)(1) of the Act.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Mo-
hawk Liqueur Company, Novi, Michigan, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order as modified.
1. Delete paragraphs 1(c) and 2(b).
2. Substitute the following for paragraph 2(c).
‘‘(c) Preserve and, on request, make available to the
Board or its agents for examination and copying all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of interest on
the COLA payments due to members of the bargaining
unit.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT do anything to interfere with these
rights.
WE WILL NOT fail to bargain in good faith by failing
and refusing to pay a cost-of-living allowance as pro-
vided in our collective-bargaining agreement with the
General Industrial Employees Union, Local 42, Dis-
tillery, Rectifying, Wine and Allied Workers’ Inter-
national Union, AFL–CIO, as the appropriate bar-
gaining agent of our employees in the appropriate unit
described below
All full-time and regular part-time employees em-
ployed by the Employer at its facility located at
42700 Mohawk Drive, Novi, Michigan, but ex-
cluding Teamsters, salesmen, professional em-
ployees, office clerical employees, managerial em-
ployees, guards and supervisors as defined in the
Act.
WE WILL NOT fail to bargain in good faith by insist-
ing to impasse that the Union either bargain about or
agree to forgo COLA which is due under an existing
collective-bargaining agreement.
WE WILL NOT unilaterally implement changed terms
and conditions of employment without reaching a valid
impasse.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
the rights guaranteed them by Section 7 of the Act.
WE WILL make employees in the bargaining unit
whole for any loss they may have suffered by reason
of our delay in paying the COLA due on June 4, 1987,
by paying interest on those payments, computed in ac-
cordance with Board policy.
MOHAWK LIQUEUR COMPANY
Charles Morris, Esq., Richard F. Czubaj, Esq., and James
Walter, Esq. for the General Counsel.
John S. Schauer, Esq., and Camille A. Olson, Esq. (Seyfarth,
Shaw, Fairweather & Geraldson), for the Respondent.
Donald B. Greenspon, Esq. (Greenspon, Scheff & Wash-
ington), for the Charging Party.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. Upon charges
filed by the General Industrial Employees Union, Local 42,
Distillery, Rectifying, Wine and Allied Workers’ Inter-
national Union, AFL–CIO (the Union) on June 4, 1987,1 as
amended on June 29, and upon additional charges filed on
July 22, August 4, November 9, December 23, and January
12, 1988, a third order consolidating cases, fourth amended
complaint and notice of hearing issued on January 26, 1988,
alleging that the Respondent, Mohawk Liqueur Company
(Respondent or the Company) committed unfair labor prac-
tices in violation of Section 8(a)(1), (3), and (5) of the Na-
1077MOHAWK LIQUEUR CO.
2 Exhibits offered into evidence by counsel for the General Counsel (General
Counsel) are cited as G.C. Exh. lll, the Union’s exhibits as C.P. Exh.
lll, and the Respondent’s exhibits as R. Exh. lll.
3 By motion dated December 29, 1988, Respondent requested leave to sup-
plement the record with a December 6, 1988 determination order of the Michi-
gan Department of Labor and an arbitral decision involving the discharge of
a former Mohawk Liqueur employee on the ground that these decisions sup-
port its argument in this case that it lawfully withheld a cost-of-living allow-
ance (COLA) payment to employees. The General Counsel and Charging Party
filed opposition thereto.
Respondent’s motion is denied. The Michigan Department of Labor issued
its cursory decision under a statute ‘‘with different definitions, policies and
purposes from those of the . . . Act.’’ Central Broadcast Co., 280 NLRB
501 fn.1 (1986). Moreover, those decisions are totally silent with regard to the
fact-finders’ rationale and do not reveal whether the state agency or the arbi-
trator considered or decided the matters before them in accordance with the
dictates of the Act or Board precedent.
4 McKesson Corporation’s Beverage Group has owned and operated Mo-
hawk Liqueur since 1971.
tional Labor Relations Act (the Act). The Respondent filed
timely answers denying that it had violated the Act.
The case came to trial before me in Detroit, Michigan, on
April 19–22, July 25–29, and September 7, 1988, during
which times the parties had full opportunity to examine and
cross-examine witnesses, to introduce documentary evi-
dence,2 and to argue orally. After considering the witnesses’
demeanor, the parties’ posttrial briefs, and on the entire
record,3 pursuant to Section 10(c) of the Act, I make the fol-
lowing
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, a Michigan corporation, with an office and
place of business in Novi, Michigan, is engaged in the im-
porting, rectifying, nonretail sale and distribution of liqueur,
distilled spirits, and related products. During the year ending
December 31, 1986, which period is representative of its op-
eration during all times material, Respondent purchased and
had delivered to its Novi place of business liqueur and re-
lated products valued in excess of $100,000 of which prod-
ucts valued in excess of $50,000 were delivered to its Novi
facility directly from places located outside the State of
Michigan. During the same time period, Respondent, in the
course and conduct of its business operations, sold and dis-
tributed at its Novi facility products valued in excess of
$100,000, of which products valued in excess of $50,000
were shipped directly to points outside the State. Based on
these facts, I find that Respondent is now, and has been at
all times material, an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
The Union is, and has been at all times material, a labor
organization within the meaning of 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Overview
Respondent and the Union, which represents the produc-
tion and maintenance workers at the Novi plant, have had a
collective-bargaining relationship since the 1960s. The dis-
pute in this case arose out of negotiations for a new contract
to succeed the one due to expire on midnight May 31, 1987.
Bargaining committees, led by Vernon Frakes, Inter-
national vice president of the Union, and Jane Downey, di-
rector of labor relations for the McKesson Beverage Group,4
met throughout May without reaching agreement. From the
outset, it was clear that the parties were far apart on numer-
ous issues and that bargaining would be difficult because the
Company, facing a decline in its competitive position, was
seeking far-reaching financial concessions. In the employees’
view, the Respondent’s proposal to delete COLA payments
from the new contract was especially troublesome. At the
final bargaining session on May 29, after receiving the Re-
spondent’s final offer, the Union realized for the first time
that the Company intended to delete COLA not only from
the new contract, but also to withhold the COLA payment
which was supposed to issue on June 4, 4 days after the
agreement expired. A strike commenced on June 1.
The Respondent did not issue the COLA checks on their
due date and implemented its final offer. While the strike
was in progress, collective bargaining resumed in mid-July.
Although the parties were unable to resolve their differences,
the Respondent issued the June 4 COLA payments on July
28. Thereafter, at a membership meeting on August 3, the
employees voted to continue the strike, justifying their action
in part on their belief that the Company had refused to re-
lease the names of employees who might be terminated for
alleged picket line misconduct. The Respondent maintains
that it did not unlawfully withhold information; rather, when
the Union made a firm and specific request, the information
was provided expeditiously.
The employees submitted an unconditional offer to return
to work on August 12. However, having hired permanent re-
placements on August 5, the Respondent refused to reinstate
all the strikers. In the ensuing months, the Respondent held
interviews with 12 employees to determine whether they
should be reinstated in light of alleged picket line mis-
conduct. After concluding these interviews, six employees
were discharged.
Subsequently, in January 1988, the parties executed a col-
lective-bargaining agreement retroactive to June 1, which
was a slightly modified version of the Respondent’s final
offer.
The Issues
These facts, set forth in greater detail below, pose the fol-
lowing overarching issues.
1. Was the Respondent’s declaration that it would not
issue COLA payments on June 4 as provided, and its subse-
quent withholding of those payments until July 28, a unilat-
eral alteration of the terms and conditions of employment in
violation of Section 8(D) and Section 8(a)(1) and (5) of the
Act?
2. Was the strike which commenced on June 1 triggered,
at least in part, by the Respondent’s announcement that it
would withhold the June 4 COLA payment, or was the strike
caused entirely by economic differences?
3. If the Respondent did violate the Act by refusing to
make the June 4 COLA payment, did it subsequently cure
its unfair labor practice by issuing the COLA checks on July
28?
4. Did payment of the June 4 COLA increase thereafter
convert the strike into one which was solely economic in
character?
5. Did Respondent unlawfully refuse to furnish the Union
with information as to the identity of strikers who allegedly
were under investigation for picket line misconduct? If so,
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Notes taken by employee Witmer, a member of the union bargaining com-
mittee, and by Carroll, a member of Respondent’s negotiating team, both sup-
port Frakes’ testimony in this regard.
6 In its brief, Respondent contends that Local President Hall testified that
he reviewed matters such as strike benefits and unemployment compensation
at the May 28 meeting. In fact, the transcript shows that Hall initially was
confused about the date, but quickly corrected himself to state with certainty
that these matters were not raised until after the strike commenced. (Compare
Tr. 1103 and 1104.)
did the strike then continue as an unfair labor practice protest
in part because of this refusal?
6. By executing a collective-bargaining agreement in Janu-
ary 1988, which was retroactive to June 1, 1987, did the
Union waive its right to any of the remedies prayed for in
the complaint?
Collective Bargaining Prior to the Strike
In March, Local 42 President Ken Hall notified the Com-
pany that the Union wanted to renegotiate the parties’ con-
tract and was not interested in renewing or extending the cur-
rent collective-bargaining agreement. Thereafter, the parties
arranged their first negotiating session for May 7.
At this first meeting, the parties exchanged proposals and
apparently recognized that they were far apart. While the
Union was proposing a continuation of cost-of-living allow-
ance (COLA) payments, a three-step wage increase, and
other improved terms, the Respondent was seeking extensive
concessions including the elimination of the COLA provision
and a 10-percent wage reduction.
Since the 1970s the parties’ collective-bargaining agree-
ments, including the one which was due to expire on May
31, provided that ‘‘Each employee covered by this Agree-
ment shall receive a cost of living allowance in accordance
with the provision get forth in Appendix ‘B’ attached here-
to.’’ (G.C. Exh. 2 at 13.) The formula for determining the
precise amount and the dates that COLA payments were to
issue was spelled out with unmistakable clarity in the appen-
dix. The following chart, extracted verbatim from the agree-
ment, demonstrates that the parties left nothing to chance:
Allowance Ef-
fective Date
Based on Index Published
For
Date Check Will Be
Issued
Dec. 1, 1984 Oct. 1984 Dec. 4, 1984
June 1, 1985 Apr. 1985 June 6, 1985
Nov. 30, 1985 Oct. 1985 Dec. 5, 1985
May 31, 1986 Apr. 1986 June 6, 1986
Nov. 29, 1986 Oct. 1986 Dec. 4, 1986
May 31, 1987 Apr. 1987 June 4, 1987
The contract further provided that the employees were to re-
ceive COLA payments on precise dates for all paid hours
worked during the previous 6-month period as specified
above. The final COLA payment of June 4 was the only one
which was to issue after the agreement expired.
During the May 7 meeting, Frakes asked Downey what the
Company meant by the proposal to delete COLA. When
Downey answered that article XIII and appendix B would be
eliminated from the contract and that there would be no more
COLA payments, Frakes commented that this would pose a
problem. Nothing further was said by either side about the
COLA proposal at this time.
The parties met again on May 15 and 18, but, because
Frakes was unable to attend, little of substance was accom-
plished. Instead, the bargaining committees discussed Re-
spondent’s economic problems, particularly the loss of its
Hiram Walker bottling business. When Frakes returned to the
bargaining table on May 19, time was spent bringing him up
to date. At this time, Downey provided him with a copy of
the Hiram Walker letter canceling its contract with the Re-
spondent. After reviewing Respondent’s other proposals,
Frakes speculated that a strike was likely.
Modest movement was made by both sides at the next two
sessions on May 20 and 21, but major differences remained
on such matters as the COLA payments, wages, mandatory
overtime, and seniority. On the morning of May 22, before
the sixth bargaining session, Hall obtained strike authoriza-
tion from the Union’s International president, George Or-
lando, as required by the Union’s constitution. At the meet-
ing, Downey provided Frakes with typed copies of several
revised proposals which he had requested during a telephone
conversation with her the previous evening. Frakes then told
Downey that the Union would move from its proposal if the
Respondent would do so also. Downey replied that the Com-
pany had moved significantly from its initial positions and
was waiting for the Union’s response.
After caucusing, Frakes advised the Respondent that the
Union was rejecting the revised proposals which were re-
ceived that morning. At this, Downey said, ‘‘It sounds like
you’re telling me we are at impasse.’’ Frakes replied that
they were close to it and again asked Downey to prepare the
Company’s final offer by May 29.5
Downey and several members of both the management
and union bargaining committees recalled that Frakes also
stated at this meeting, that if the COLA provision was not
retained, he could not submit the final offer to a membership
vote and a strike would result. Frakes denied having made
such a comment. In resolving this testimonial conflict, I rely
heavily on Downey’s notes of this, as well as of other collec-
tive-bargaining meetings, which corroborate her testimony.
Downey, a highly trained and sophisticated negotiator, was
a methodical and meticulous notetaker. While she did not
transcribe verbatim conversations, she generally covered all
important topics systematically. Since her notes were taken
contemporaneously and for business purposes unrelated to
litigation, I find that they provide a reliable recordation here.
Frakes, on the other hand, frequently suffered from the famil-
iar human failing, forgetfulness, and was seldom permitted to
refresh his recollection with his own notes.
As scheduled, a union membership meeting was held on
May 28 at which time Frakes reviewed the Company’s pro-
posals. Matters of greatest importance to the employees con-
cerned the retention of COLA, wages, and seniority. How-
ever, when a vote was taken, the employees did not identify
specific strike issues. Rather, by a margin of 59 to 2, they
authorized the bargaining committee to call a strike unless
the Respondent’s final offer changed significantly.6
The May 29 Meeting
On the morning of May 29, Federal Mediator Robert Robb
telephoned Downey and agreed to attend the bargaining ses-
1079MOHAWK LIQUEUR CO.
7 Union and management representatives both denied initiating the request
for a mediator’s presence at the May 29 meeting. Since even before bargaining
began, both the state and Federal mediation services were told when negotia-
tions would begin and when the contract expired, it is altogether likely that
Robb himself initiated the call to Downey, knowing that the expiration date
was just a few days away.
8 Included among the Company’s rejected proposals was a lengthened proba-
tionary period, revised seniority rights, limitations on overtime and vacation
pay, a shared payment rather than company funded health plan, and the end
of COLA.
9 Hall testified without dispute that he ordered the picket signs after the
meeting ended on May 29.
10 Frakes initially testified that he had a telephone conversation with Dow-
ney sometime in June at which time he made his first request for the names
of strikers who would be discharged. He also referred to a call with Downey
on June 16 in an affidavit. When probed about this call on cross-examination,
he finally realized that the reference to this date in his affidavit probably was
an error. Downey was certain that she did not talk with Frakes until July 9.
sion scheduled later that day. Downey then contacted Frakes
to tell him that Robb would be present.7
When the session convened, the parties reviewed the status
of their original proposals with Robb. At this time, the Union
still was requesting a number of changes which were unac-
ceptable to the Respondent, including a 75-cent-an-hour
wage increase spread over 3 years, an additional holiday, an
increase in vacation time, improvements in the seniority sys-
tem, increases in disability and severance pay, four additional
days of personal leave, and continuation of COLA.
Downey then distributed the Respondent’s final offer
which retained concessionary terms the Union previously had
rejected.8 The parties differ widely as to the sequence of
events and the substance of the dialog during the balance of
this meeting.
Downey testified that shortly after she began to review the
final offer, but apparently before she reached the wage or
COLA provisions, Frakes interrupted to say there would be
a strike. Downey asked if this meant they were at impasse.
Frakes said they were and stated that pickets would be post-
ed at Sunday, midnight. The union committee then withdrew
for a caucus. Frakes denied that he declared an impasse or
referred to a strike until after the Union had caucused. Here,
too, I rely on Downey’s contemporaneous notes to resolve
this dispute. The notes confirm her testimony with regard to
the sequence of events and are consistent with notes taken
by Carroll. Accordingly, I am persuaded that Frakes stated
there would be a strike before the Union first caucused at the
May 29 meeting.
During their caucus, the members of the union bargaining
committee began carefully to review the final offer. Jim
Thersson, member of the union team, called the committee’s
attention to a note in the final offer which, in his words,
struck them like a ‘‘bombshell.’’ Specifically, the note stat-
ed: ‘‘The cost of living allowance which is effective as of
May 31, 1987, and payable on June 4, 1987, will not be
paid.’’ (G.C. Exh. 6 at 10.)
Frakes returned to the meeting room to ask Downey if the
note was an error. Protesting that the employees were owed
that payment for the last 6 months of work, he said that the
Respondent’s action created an unfair labor practice strike
and that without the June COLA payment, he could not sub-
mit the Company’s final offer back to the union members for
a vote.
Downey testified that she told Frakes the June COLA pay-
ment was one of a number of economic items over which
the parties were at impasse and that he previously told her
he was not going to ask for a vote on the final offer unless
COLA payments were continued. She then asked Frakes
whether the Union would accept the contract and abstain
from striking if the Respondent made the June 4 COLA pay-
ments. Downey and Carroll maintained that Frakes said no,
that there would be a strike. At this, Downey told him that
since the parties were at impasse Respondent would imple-
ment its final offer on June 1.
Frakes agreed that Downey asked him if the Union would
accept the final offer if the June 4 COLA payments were
made, but he answered: ‘‘I don’t know.’’ He further related
that when he reported Downey’s comments to the bargaining
committee the members no longer wished to negotiate. Be-
fore the meeting ended and with the union bargaining com-
mittee present, Frakes testified that he asked Downey if she
was willing to make the COLA payments and whether it
would serve any purpose to negotiate over the weekend. Ac-
cording to Frakes, she replied negatively, stating that the
Union had the final offer and nothing would change over the
weekend. However, in an affidavit supplied to an NLRB in-
vestigator shortly after the events in question, Frakes avowed
that he told Downey it would do no good to negotiate over
the weekend in light of the Respondent’s final offer. Given
these contradictory statements, I rely instead on Downey’s
clearer and more consistent account as set forth above.
Although the record does not show exactly when the mem-
bers of the bargaining committee realized that the final offer
included a wage reduction of 5 percent rather than 10 percent
as originally proposed, it apparently was sometime after they
discovered Respondent’s intent to withhold the June 4 COLA
checks. Frakes stated at the trial that given the 5-percent
wage change he would have submitted the final offer to a
membership vote were it not for the Company’s stance on
the June 4 COLA payment.
After the meeting ended, Thersson and another bargaining
committee employee, Howard Kaechle, went to the plant to
tell the exiting employees that a strike was being called be-
cause the Company had decided to withhold their June
COLA checks.
The Strike Begins
Strikers started to picket the facility on June 1. The fol-
lowing day, they began carrying placards identifying the pro-
test as an unfair labor practice strike.9 Soon after the strike
began, Hall advised the employees about strike benefits, un-
employment compensation, and other related matters.
Frakes and Downey had no contact in June.10 However,
Downey spoke by phone with Union President Orlando on
June 29 at which time she agreed to give him notice before
the Respondent hired permanent replacements. As promised,
letters were sent to the union leadership on July 1, advising
that the Company would hire permanent replacements unless
the unit members returned to work by July 9. Similar letters
were sent to the strikers the following day. No one re-
sponded to these letters.
At Frakes’ request, the mediator assisted in scheduling a
bargaining meeting for July 15. In full session, the Union
made a new offer which receded from its earlier economic
demands. However, the Union continued to seek payment of
the June 4 COLA wages. Downey responded that the
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 On direct examination, Frakes indicated that during the July 15 meeting
he asked Downey about granting amnesty; that is, taking back all the workers.
She responded that they were investigating six employees for picket line mis-
conduct, but when he asked for their names she would not release them, ex-
plaining that they were still under investigation. On cross-examination 2 days
later, Frakes reported that this exchange (with some variations) took place on
July 16.
12 Another member of the bargaining committee, Rachel Navarro, also ap-
peared as a witness and was questioned about the August 3 meeting. However,
as she herself admitted, her recall at trial, more than a year after the events
in question, was far from perfect. Her testimony also suffered from her inabil-
ity to separate her personal reactions from actual discourse. Accordingly, I am
compelled to disregard her testimony.
Union’s new offer gave the Company no reason to alter its
final offer.
After caucusing, Frakes returned with another proposal
which accepted the final offer as a starting point. In brief,
the Union asked for several modifications including a dele-
tion of the mandatory overtime requirement, a wage freeze,
more sick and personal days off, 1000 qualifying hours for
vacation pay, and payment of the June 4 COLA. Downey
agreed to confer with other management officials about the
Union’s proposals, whereupon they agreed to reconvene the
next day.11
The Union’s Request for Information
Sometime after the July 16 meeting began, the question of
which employees might be discharged for picket line mis-
conduct arose. Frakes described a fairly extensive exchange
with Downey on this matter. He said that the topic arose
when he told Downey he would present the contract to the
union members for a vote if all of them were taken back to
work. Downey told him that not all the striking employees
would have jobs because the Company had hired some re-
placements. Then, he asked how many people were involved
in picket line misconduct. (At another point in his testimony,
Frakes stated that during this meeting he asked Downey for
the names of the three people who, during a prior telephone
call, she had indicated would be discharged.) When Downey
purportedly replied that six persons were under investigation
and that there might be more. He asked who they were. She
answered that they were still under investigation. Frakes said
that he insisted on having the names so that he could tell the
membership who was discharged before asking them to vote
on the final offer. However, Downey refused his request,
saying she was unprepared to give him that information.
Downey gave a briefer account of their exchange. She ac-
knowledged that Frakes asked if anyone would be dis-
charged, and if so, who; but that was all he asked. She told
him that some people might be discharged, but that no deci-
sions had been made, and would not be, until the facts were
reviewed and the employees given an opportunity to present
their side of the story.
On cross-examination, Frakes admitted that Downey told
him the Company could not give him any names because no
decisions about discharges had been made; that no decisions
would be made until the Company reviewed all the evidence,
and that each person involved was given a chance to present
his or her defense. Yet, he also maintained that it was at this
meeting that Downey told him that either three or six em-
ployees would be discharged. It is difficult to believe that
Downey said no decisions had been made, as Frakes admit-
ted, and at the same time also believe that she said that Re-
spondent would fire three or six employees. Frakes appar-
ently was confused both about the dates and contents of
these discussions. In contrast, Downey was clear and con-
sistent. Her notes and those of Carroll’s support her account,
while notes of the July 16 meeting taken by Union Secretary
Susan Greene contain no reference to a request for informa-
tion. Accordingly, I rely on Downey’s recollection with re-
spect to this first request for information.
As the July 16 meeting was ending and after the Respond-
ent made two minor revisions to its final offer, Frakes asked
Downey whether Respondent would pay the June 4 COLA
if the employees accepted the final offer. When she asked
Frakes if he was making a proposal, she received no re-
sponse.
Frakes and Downey next talked by phone on July 23. In
substance, Frakes asked whether all the employees could re-
turn to work and receive the June COLA payments if they
ratified the final offer. Downey pointed out that the Com-
pany had hired permanent replacements, but agreed to review
the matter with her superiors.
Respondent’s Payment of COLA
When Downey and Frakes next spoke by phone on July
27, she informed him that the Company was issuing COLA
checks to the workers. When Frakes again asked whether ev-
eryone could return to work, Downey noted that no one had
offered to return yet for whom there were no jobs. Frakes
then suggested that any discharge which the Union disputed
could be resolved through the grievance procedure. At
Frakes’ request, Downey provided her itinerary and tele-
phone numbers for the coming week.
On July 28, the Respondent mailed COLA checks to the
union members with a cover letter which stated in pertinent
part:
The . . . National Labor Relations Board decided
that there was a legal issue as to our bargaining on the
June 4th COLA payment. No final determination . . .
has been made, and it is the position of Mohawk . . .
that our bargaining in respect to the June 4th payment
was proper.
. . . regardless of who is right or wrong, we have made
the June 4th payment. It is no longer an issue in nego-
tiations.
We recognize your right to strike . . . If you decide
to continue your strike, we will take steps to continue
our business, including steps to permanently replace
those who have not returned to work by August 4.
[G.C. Exh. 5.]
The Strike Ends
In light of the Company’s payment of COLA and offer to
reinstate the striking employees, the Union called a mem-
bership meeting for August 3. Although witnesses’ memories
of this gathering had faded by the time of trial, Union Sec-
retary Greene was able to locate her handwritten and type-
written notes of the meeting, which afford the only contem-
poraneous record of what may have occurred.12 These notes
indicate that the members wanted to return to work in ap-
1081MOHAWK LIQUEUR CO.
13 Greene’s typed notes omit her handwritten reference to the members’ in-
terest in returning to work ‘‘l wk Thursday,’’ which I interpret to mean 1
week from the coming Thursday, August 13. (Compare G.C. Exhs. 25 and 26.)
14 Greene’s handwritten notes contain a comment, ‘‘report back after 8–11’’
which does not appear in the typed version.
15 Downey was traveling for business reasons and learned of the letter when
she telephoned her office on August 7.
16 The Union did not send a copy of the request for information to Luskey.
He first learned of the request on August 6 after receiving a copy of the unfair
labor practice charge which the Union filed with the Board.
17 Respondent eventually discharged 6 of the 12 persons on the list provided
to Frakes, after conducting individual interviews with them in August and Sep-
tember. The allegations concerning these discharges will be discussed in detail
below.
proximately 10 days, with amnesty.13 However Frakes told
the group that the Company would not grant amnesty, and
had advised him that ‘‘there are six people they will not take
back because of supposed actions on the picket line (possibly
more than six people).’’ (G.C. Exh. 26.) Notwithstanding the
above-quoted comment from Greene’s notes, which she
typed several days after the meeting, she testified at trial that
Frakes referred to six people who were going to be ‘‘inves-
tigated’’ rather than discharged for picket line misconduct.
Greene next reported that the Union’s counsel explained
the unfair labor practice charge which had been filed with
the Board. He also informed the group that the Agency had
not determined whether the strike would be considered an
unfair labor practice or economic action. Frakes then told the
members that Respondent had violated the Act by not sub-
mitting the names of those they would not take back. How-
ever, he assured them that the Union had requested their
names and reasons for their discharges and intended to file
another unfair labor practice charge about this.
Greene’s notes indicate that counsel explained that the em-
ployees could either continue the strike, accept the final
offer, or return to work without a contract. Thereafter, the
members voted unanimously to remain on strike and await
a report on further negotiations scheduled for August 11.14
When testifying, Greene embellished her sketchy notes by
stating that the motion was ‘‘to remain on strike until the
August 11th negotiation meetings and with the hopes that the
Negotiating Committee could come back with a negotiated
COLA with amnesty for their members . . . and also the
names of people that were being charged with misconduct on
the picket line.’’ Frakes’ recollection of this meeting was
somewhat vague, but he too recalled that employees ex-
pressed concern about voting on the contract before knowing
who would be terminated. Given their concern, he believed
that the members voted to remain on strike to see whether
the bargaining committee could obtain the names of those to
be discharged, convince Respondent to grant amnesty, and
add COLA to their final offer at the bargaining session set
for August 11.
As he told the membership, Frakes sent a letter by regular
mail to Downey at her San Francisco office on August 3
stating:
At one of our negotiating sessions on July 7, 1987, and
again in a telephone conversation . . . on July 28 . . .
I requested information regarding striking employees
who, according to the Employer have forfeited their re-
instatement rights due to misconduct during the strike.
You refused my requests on both occasions. Since this
issue is of major concern to the Union, is a stumbling
block in our negotiations, and since the Union needs
this information to conduct its own investigation . . .
I am, for the third time requesting this information.
Specifically . . . the names of the strikers who alleg-
edly committed acts of misconduct, the dates . . . and
what the alleged . . . misconduct consisted of. (G.C.
Exh. 8.)
The following day, August 4, Frakes mailed a second let-
ter to Downey which was identical to the first except that it
set forth corrected dates showing that the information re-
quests were made on July 16 and 27, rather than July 7 and
28. On the same day, the Union filed another unfair labor
practice charge alleging that the Respondent had failed to
bargain in good faith by refusing to provide the Union with
information regarding striking employees who the Company
claimed forfeited their reinstatement rights by misconduct
during the strike. (G.C. Exh. l(i).)
Downey first learned of the Union’s August 3 letter when
it reached her office on August 7. However, Frakes and
Downey did not speak again until the bargaining meeting of
August 11.15 She arrived late, after she and Patrick Luskey,
Respondent’s vice president and general manager of oper-
ations, spent the morning reviewing materials pertaining to
alleged picket line misconduct in order to respond to the
Union’s request.16
At the outset of the August 11 meeting, Frakes asked
whether the Respondent had modified its amended final offer
and whether the Company would grant amnesty to all the
employees. Downey testified that when she pointed out that
this was the first time he had used the word amnesty Frakes
erupted in an angry tirade, prompting her to walk out of the
meeting. Frakes followed and apologized for his outburst, ex-
plaining that he was putting on a show for his committee.
During this recess, Downey gave Frakes the requested infor-
mation, repeated that decisions would be made only after the
12 employees on the list were interviewed, and agreed that
either he or Hall could be present.17
Frakes denied Downey’s account of their contretemps. In-
stead, he stated that he asked whether the employees would
be taken back to work if they accepted the contract. Downey
responded that the Company had hired permanent replace-
ments and would take the striking employees back as needed.
He then asked how many employees were discharged to
which she replied, ‘‘12.’’ When he remarked that it had
jumped from six, Downey denied that she had ever men-
tioned that number. Frakes then retorted, ‘‘Well, I recall you
saying six.’’ (Tr. 117.) He said that their angry exchange was
mutual and that he apologized later, but only as a courtesy.
Although Frakes’ detailed account of the remarks which im-
mediately preceded their dispute do not appear in Downey’s
notes, it may be that she failed to record every word uttered
during these heated moments. However, it makes no sense
that Downey would announce that 12 employees would be
discharged, and minutes later, emphasize that discharge deci-
sions would be made only after the employees were inter-
viewed. Thus, logic leads me to accept Downey’s account of
this scene.
The Strike Ends; the Contract is Signed
At the union membership meeting on August 12, the em-
ployees were told that the Respondent would not alter its
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
final offer, that the interviews would be conducted with 12
strikers before any discharges occurred, and that approxi-
mately 48 permanent replacements had been hired as of Au-
gust 10. With the COLA checks issued and information
about those charged with picket line misconduct in hand, the
employees voted to make an unconditional offer to return to
work on August 14 without a contract. Frakes acknowledged
that although the employees still were dissatisfied with the
final offer, the consensus was to offer to return quickly in
an effort to defuse a decertification petition circulating in the
plant.
The parties engaged in one more bargaining session on
September 17. On November 25, the union members ratified
the final offer and in January the parties executed the collec-
tive-bargaining agreement, retroactive to June 1, 1987. The
contract specifically provides in pertinent part that:
This Agreement shall become effective as of June 1,
1987 and shall remain in . . . effect through May 31,
1990.
This Agreement is made in full belief by both parties
thereto that it is in every respect legal. If any section,
clause or sentence of this Agreement is for any reason
held to be invalid, such a decision shall not affect the
remaining portions of this Agreement.
All rights and duties of both parties are specifically
expressed in this Agreement and such expression is all
inclusive and supersedes all prior written or oral agree-
ments . . . and concludes the obligation for collective
bargaining for its term.
III. DECISION AND CONCLUDING FINDINGS
Respondent Violated the Act by Withholding Cola
The June 4 COLA was an Accrued Right Under the
Existing Contract
The threshhold question here centers on whether Respond-
ent was obligated to make COLA payments to the employees
on June 4, even though the parties’ collective-bargaining
agreement expired on May 31. The General Counsel and the
Charging Party argue that the COLA adjustment was a vest-
ed term of an extant collective-bargaining agreement. As
such, the argument continues, it was a permissive subject of
bargaining over which impasse could not lawfully be
reached. Moreover, the Respondent’s failure to pay the June
COLA was a unilateral change in the terms of the then-ex-
tant agreement. Respondent contends that since it had no
duty to make a COLA payment after the agreement expired
the continuation of a COLA provision in the succeeding con-
tract, including the June 4 COLA, was a mandatory subject
of bargaining over which the parties reached impasse. Ac-
cordingly, it lawfully implemented its final offer, which in-
cluded the elimination of all COLA payments, including the
one otherwise due on June 4.
In support of the position that the COLA payment was a
vested benefit owed under the terms of the 1984–1987 labor
contract, the General Counsel and Charging Party cite
Meilman Food Industries, 234 NLRB 698 (1978), enfd.
mem. 593 F.2d 1371 (D.C. Cir. 1979). In Meilman, the arti-
cle of the collective-bargaining agreement which expired on
December 6, 1974, read that if the consumer price index ex-
ceeded a certain level on specified dates within the life of
the contract, then the COLA payment was due on or after
July 1 and January 1. The Board concluded that the cost-of-
living adjustment had accrued even though its effective date
fell after the expiration of the collective-bargaining agree-
ment. In so ruling, the Board stressed that the agreement
clearly established that the relevant time for determining
when the adjustment accrued was the review date which fell
within the life of the agreement. 234 NLRB at 698, 704.
Basing its decision on the explicit language of the agreement,
which is ‘‘clear on its face and requires no construction or
interpretation beyond its plain meaning,’’ the Board held that
the adjustment was due and payable. Therefore, the failure
to pay the COLA was a unilateral change in the existing
wage structure in violation of Section 8(a)(1) and (5). Id. at
698.
The Board and the courts have considered this same issue
in two subsequent cases. In Struthers Wells Corp., 262
NLRB 1080 (1982), the Board ruled that the employer was
obliged under a contract which expired on November 1,
1980, to pay COLA due in January 1981, based on a con-
sumer price index set the preceding November 15. The court
of appeals denied enforcement of the Board’s Order, specifi-
cally finding that since both the calculation period and the
payment date occurred after the contract’s life the COLA
payment was not an ‘‘existing term and condition of employ-
ment that survived the expiration of the . . . agreement.’’
721 F.2d.465, 472 (3d Cir. 1983).
More recently, in Harvstone Mfg. Corp., 272 NLRB 939
(1984), the Board again found that an employer was obli-
gated to pay COLA effective on September 1, 1982, where
the parties’ collective-bargaining agreement expired 1 day
earlier, on August 31. The Court of Appeals for the Seventh
Circuit denied enforcement, finding that, unlike Meilman, in
which the review dates were ‘‘definitely established, the re-
view dates in Harvstone: lacked concreteness since they were
to occur’’ sometime following the publication of the con-
sumer price index for the particular period. This lack of a
concrete review date was critical to the circuit court’s con-
clusion that:
There is no language in the agreement establishing the
review dates as the time at which the cost-of-living ad-
justments became contractually enforceable rights.
[T]he review dates have no significance in determining
the Respondent’s obligations to pay the cost-of-living
adjustments. We therefore find that the Respondent’s
contractual duty to pay such adjustments arose, and the
employees’ rights to such adjustments accrued, only on
the effective dates during the life of the agreements.
Since the September 1, 1982 effective date occurred
after the expiration of the . . . bargaining agreements,
the Respondents were not obligated to pay the adjust-
ment in question. [785 F.2d at 580–581.]
The lesson derived from the above-cited cases is that an
employer’s obligation to pay a cost-of-living adjustment due
after an agreement expires will turn on the specific language
of the COLA provision contained in each collective-bargain-
ing agreement. In the instant case, the cost-of-living increase
clearly was determined on a fixed and certain date within the
term of the parties’ collective-bargaining agreement. It was
1083MOHAWK LIQUEUR CO.
18 Respondent claimed it was always ready to bargain about its June 4
COLA proposal; yet, the decision to abolish it was presented in the final offer
as if it were a fait accompli. Moreover, Downey pointed out to Frakes that
as a rule, Respondent did not alter the terms of a final offer.
19 Unlike the General Counsel who characterizes the Respondent’s June 4
COLA demand as a nonmandatory subject of bargaining, the Charging Party
contends that the demand, was, in fact, illegal since to accede to it, would
require the Union to commit an unlawful act under Federal and state law. Be-
cause the complaint did not allege that the Respondent’s conduct was illegal,
and the question of illegality was not litigated at the instant hearing, it is inap-
propriate to consider the Charging Party’s argument here.
effective on May 31, which may have been the final date of
the contract, but was within the life of the agreement, none-
theless. Thus, under the rationale of any of the above-cited
cases, the COLA payment here was an accrued benefit with-
in the term of the 1984–1987 contract.
Respondent relies on the court of appeals’ decision in
Harvstone, to argue that it had no duty to make the final
COLA payment and could bargain to impasse about it be-
cause it was payable 4 days after the contract expired. Re-
spondent’s reliance on the appellate decision in Harvstone is
misplaced. As discussed above, the court reasoned that the
measurement date was imprecise and the effective date in the
Harvstone contract fell outside the term of the labor agree-
ment. In the present case, the only date to fall beyond the
term of the parties’ agreement was the date the COLA
checks were to issue. The June 4 payment date simply served
as a deadline by which time the Respondent had agreed and
was bound to complete rather perfunctory mathematic cal-
culations based on hours worked within the life of the con-
tract. This required ‘‘no employer discretion whatsoever.’’
Meilman Food Industries, supra at 706. The date when
checks were supposed to issue under the just expired agree-
ment should not be confused with the effective date of May
31 when COLA vested for all hours worked in the preceding
6-month period. As the administrative law judge observed in
Harvstone: ‘‘Such previously negotiated contractual provi-
sions, to take effect during or even after the term of the con-
tract, are binding and do not require reincorporation into a
further contract.’’ The Union was not required to ‘‘rebargain
that which has already been secured by a binding past agree-
ment.’’ 272 NLRB at 943.
Respondent’s Decision to Withhold COLA Constituted
a Refusal to Bargain
Under Sections 8(a)(5) and 8(d) of the Act, an employer
may not unilaterally terminate or modify a collective-bar-
gaining agreement governing wages, hours, and other terms
and conditions of employment during the term of that agree-
ment without first providing the representative of its employ-
ees an opportunity to bargain concerning the proposed
changes. NLRB v. Katz, 369 U.S. 736, 741–748 (1962).
Section 8(d) further provides that no party to an agreement
shall be required ‘‘to discuss or agree to any modification of
the terms and conditions contained in a contract for a fixed
period, if such modification is to become effective before
such terms and conditions can be reopened under the provi-
sions of the contract.’’ In other words, unless there is an ex-
press provision to reopen the contract, neither party may in-
sist upon a modification of the agreement during its term.
Thus, while an employer may propose midterm modifications
of a current collective-bargaining agreement a union need not
assent to proposed changes and is not obliged to bargain
about them during the contract term. An employer violates
8(a)(1) and (5) by altering any term of a collective-bar-
gaining agreement governing a mandatory subject of bar-
gaining without obtaining the consent of the union, even if
the reason for the change is financial difficulty. Standard Fit-
tings Co. v. NLRB, 845 F.2d 1311 (5th Cir. 1988).
Having found above that the June COLA payment was an
express term of the parties’ executed collective-bargaining
agreement, it follows, pursuant to Section 8(d) of the Act,
that the Union had no duty to bargain about it, much less
to acquiesce. Without the Union’s consent, the Respondent’s
unilateral decision to eliminate the COLA payment automati-
cally constituted a refusal to bargain in violation of Section
8(a)(1) and (5) of the Act. NLRB v. Standard Fittings, supra;
Meilman Industries, supra. Therefore, whether the parties
bargained to impasse on the elimination of the June 4 COLA
payment is irrelevant for the Union was not obliged to bar-
gain at all where the proposal concerned changing a manda-
tory and vested term of employment. Ibid.
The Respondent contends that it did not violate the Act by
conditioning bargaining on the Union’s acceptance of its
June 4 COLA proposal as alleged in the complaint. Respond-
ent submits that in actuality, it did nothing more than include
a proposal to abolish the June COLA payment as part of a
series of proposals to revise the expiring contract. Even if
Respondent’s contention is factually correct, its legal premise
is in error.18
To demonstrate its willingness to bargain about the June
4 COLA issue, Respondent points out that Downey encour-
aged Frakes to counteroffer at the May 29 meeting. Thus,
she asked whether the Union would agree to the final offer
if the Company withdrew the June 4 COLA proposal. Be-
cause the Union had an absolute right to resist bargaining
over any change to the June COLA, Respondent’s readiness
to bargain is completely irrelevant. Indeed, Respondent’s
error was to retain its June 4 COLA proposal as a
bargainable issue in the face of union resistance.
Moreover, the Company’s willingness to negotiate about
its June 4 proposal came at a steep price: the Union’s accept-
ance of the final offer. In other words, Respondent used the
June 4 COLA as a bargaining chip. By retaining and imple-
menting this onerous condition as a lever to extract accept-
ance of its final offer, Respondent engaged in bad-faith bar-
gaining.19
The Respondent asserts that its proposal to delete the June
4 COLA payment was based on a good-faith and arguably
sound interpretation of the expired labor agreement. Citing
NCR Corp., 271 NLRB 1212 (1984), Respondent submits
that the instant controversy is nothing more than a contract
dispute which presents no evidence of antiunion animus or
bad faith.
Addressing a similar assertion in Meilman, supra at 705–
706, the administrative law judge aptly wrote: ‘‘the resolu-
tion of this dispute does not turn on the interpretation of a
contract clause. Where, as here, the issue involves a legal
matter arising from the obligation under the Act to refrain
from changing the conditions of employment, such is within
the special competence of the Board.’’ As in Meilman, what
is in issue here is adherence to the command of Section 8(d)
that no party to an agreement shall be required ‘‘to discuss
or agree to any modification of the terms and conditions con-
tained in a contract for a fixed period.’’
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
20 Respondent’s reliance on NLRB v. Great Dane Trailers, 388 U.S. 26
(1967); and Nuclear Fuel Services, 290 NLRB 309 (1988), is misplaced for
those cases discuss antiunion motivation in the context of 8(a)(3) violations.
Even if under the Great Dane test, Respondent had produced substantial busi-
ness justification (which it has not), fiscal distress does not excuse an employ-
er’s obligations under an existing contract. Standard Fittings Co. v. NLRB,
supra.
Like the COLA provision in Meilman, the COLA clause
in the present dispute was clear on its face. No serious con-
tention can be raised that the effective date, expressly set
forth as May 31, was not within the term of the current
agreement. Moreover, the COLA clause in the unexpired
contract was not marred by vagueness which troubled the
Circuit Court in Harvstone. Thus, the straight forward con-
tractual provision here bears no resemblance to those at issue
in NCR Corp. supra, where the Board found that two sepa-
rate and ambiguous articles in the agreement admittedly gave
rise to conflicting and equally plausible interpretations.
In NCR, the Board observed that as additional evidence of
its good faith, the employer gave the union 4 months’ notice
of its intent to introduce changes in accordance with its con-
struction of the labor agreement. In contrast, the Respond-
ent’s last minute announcement that the June 4 COLA would
be deleted undermines its claim of good faith. Respondent
suggests that it gave the Union adequate notice of its intent
to withdraw the June 4 COLA on May 7 in its first set of
contract proposals. However, that proposal referred solely to
the deletion of article XIII and appendix B in the new con-
tract; it was silent about the June 4 COLA payment. If Re-
spondent wanted to alert the Union from the outset that it in-
tended to cancel the June cost-of-living increase, Downey
could have done so in unambiguous terms just as she did in
the final offer. Respondent surely had to suspect that its deci-
sion to cancel the June 4 COLA payment would hit the
Union like the proverbial ‘‘bombshell.’’ By reserving its
stunning announcement for the 11th hour and by condi-
tioning receipt of the June 4 COLA on the employees’ ac-
ceptance of its final offer Respondent engaged in bargaining
tactics that do not comport with the requirements of Section
8(d) of the Act.
In the final analysis, by acting upon its proposal to abolish
the June 4 COLA, Respondent unilaterally altered the exist-
ing wage structure. This conduct automatically violates Sec-
tion 8(a)(1) and (5) despite the possibility of overall subjec-
tive good faith. See Chemical Workers v. Pittsburgh Plate
Glass Co., 404 U.S. 157, 183–188 (1971); NLRB v. Katz,
369 U.S. 736, 747 (1962).20
Respondent’s Position on the June 4 COLA
Precluded Impasse
As a general rule, an employer may implement changed
terms and conditions of employment unilaterally after bar-
gaining has reached impasse. However, there can be no ‘‘le-
gally cognizable impasse . . . if a cause of the deadlock is
the failure of one of the parties to bargain in good faith.’’
Marine & Shipbuilding Workers v. NLRB, 320 F.2d 615, 621
(3d Cir. 1963), cert. denied 375 U.S. 984 (1964). Therefore,
where an employer’s failure to bargain in good faith has ob-
structed the bargaining process, the employer may not rely
on a resulting impasse to justify unilateral changes in wages
or other terms of employment. Id. at 964.
As found above, Respondent failed to bargain in good
faith by proposing to eliminate the employees’ vested right
to a sizeable COLA payment, ranging from $2000 to $2500
each. However, a separate question arises as to whether Re-
spondent’s unlawful conduct obstructed the bargaining proc-
ess.
In addressing this question, a brief recapitulation of the
pertinent facts is in order. At the outset of the May 29 bar-
gaining meeting, the parties differed on a number of issues
involving mandatory subjects. The Union was not yet aware
of the Company’s June 4 COLA ultimatum. Soon after Re-
spondent tendered its final proposal, Frakes said the parties
were at impasse and a strike would ensue. He and the union
bargaining committee then caucused to review the balance of
the final offer. It was at this time that the Union first discov-
ered the Company’s intent to withhold the June 4 COLA
checks. Frakes immediately asked Downey whether the Re-
spondent meant what it said and protested the Company’s ac-
tion. Downey responded by asking Frakes whether the Union
would accept the final offer if COLA was paid. Frakes right-
fully refused to negotiate about the June 4 payment and con-
cluded negotiations. A strike commenced on June 1.
Respondent points out that the Union had declared an im-
passe even before realizing that the Company intended to
eliminate the June 4 COLA; therefore, the differences be-
tween the parties were so numerous and severe that impasse
was inevitable with or without the June 4 COLA issue. Re-
spondent submits that because the June 4 COLA proposal
was not a contributing cause of the impasse, it was free to
unilaterally implement its final offer.
As the facts recited above show, Frakes did announce an
impasse just before the union team left the meeting room on
May 29 to caucus. However, his premature declaration was
not necessarily binding. Even at that juncture, a strike was
not inevitable. It is important to bear in mind that prior to
interrupting the bargaining in order to caucus, the union ne-
gotiators had not reviewed Respondent’s final offer in its en-
tirety and had not discovered that Respondent had integrated
the elimination of the June 4 COLA payment into its final
offer package. If on returning to the meeting room to ques-
tion Downey about the June 4 COLA proposal, Frakes had
been assured that Respondent had erred and would make the
payment and also was advised that the Company had im-
proved its wage proposal, the Union might have become
more conciliatory and continued to negotiate at least over the
weekend. However, that did not happen and it is impossible
to say now what course negotiations would have taken if it
had. By presenting a final offer which included its intent to
withhold a vested COLA payment, Respondent insinuated an
unlawful issue into the bargaining process. Furthermore, Re-
spondent conditioned the performance of its lawful duty to
pay the June 4 COLA on the Union’s acceptance of the bal-
ance of the final offer, thereby inextricably linking
bargainable with nonbargainable terms. When it discontinued
negotiations on the entire final offer package, which incor-
porated the nonbargainable term, the Union acted within its
rights. The Union did not have to bargain about what already
was owed to the employees. Since impasse results only after
good-faith bargaining takes place, impasse did not and could
not occur as a result of what took place on May 29. Given
these circumstances, it is impossible to determine whether
bargaining might have continued and impasse averted. See
1085MOHAWK LIQUEUR CO.
21 Separate questions arise as to (l) whether Respondent could implement the
final offer after paying the June 4 COLA on July 28, and (2) whether the
Union waived its opposition to implementation of the final offer by executing
a contract which was retroactive to June 1. These issues will be discussed
infra.
Latrobe Steel Co., 244 NLRB 528, 533 (1979). Therefore,
under well-settled principles, the Respondent may not rely on
an impasse brought about in part by its own unlawful con-
duct to justify unilaterally changing terms and conditions of
employment.21 See NLRB v. Katz, supra. In doing so, Re-
spondent violated Section 8(a)(1) and (5). Gaso Pumps, Inc.,
274 NLRB 532 (1985).
Respondent cites certain cases such as Taft Broadcasting
Co., supra, to support the claim that it was privileged to act
unilaterally. These cases are inapposite here because unlike
the instant proceeding which involves a proposal concerning
a midterm modification, the authorities cited by the Respond-
ent deal with bargaining over terms not yet settled by con-
tract.
The Strike was Caused, at Least in Part, by
Respondent’s Unfair Labor Practice
An unfair labor practice strike is one which is precipitated
in whole or in part by an unfair labor practice. A strike
which starts out in support of economic objectives may be-
come an unfair labor practice strike if an employer commits
an intervening unfair labor practice which is found to have
prolonged the strike or ‘‘is likely to have significantly inter-
rupted or burdened the course of the bargaining process. ‘‘C-
Line Express, 292 NLRB 638 (1989). The Board and the
courts consistently have required that the unlawful conduct
be a factor (not necessarily the sole or predominant one)
which caused or prolonged the work stoppage, but a causal
connection is not established by a mere coincidence in time.
Tufts Bros., 235 NLRB 808, 810 (1978); Reichhold Chemi-
cals, 288 NLRB 69 (1988). In the instant case, the Respond-
ent committed an unfair labor practice by proposing to delete
the June 4 COLA and soon thereafter the employees com-
menced a strike. The question here is whether Respondent’s
unlawful act was a contributing cause of the strike.
Recently, the Board acknowledged that its search for this
causal link is often problematic, causing it to rely on both
objective and subjective considerations. C-Line Express,
supra at 638. In addition, the Board observed that:
Certain types of unfair labor practices by their nature
will have a reasonable tendency to prolong the strike
and therefore afford a sufficient and independent basis
for finding conversion. . . . The common thread run-
ning through these cases is the judgment of the Board
that the employer’s conduct is likely to have signifi-
cantly interrupted or burdened the course of the bar-
gaining process. [Id. at 638.]
The record in this case supports the conclusion that Respond-
ent’s unfair labor practice was a contributing cause of the
strike.
Clearly, the parties were far apart on a number of eco-
nomic issues throughout the course of negotiations. However,
prior to the bargaining meeting on May 29, the union mem-
bers had taken no actions which necessarily made the strike
inevitable. Thus, the employees did not identify specific
strike issues or cast a definitive strike vote at the May 28
membership meeting. Rather, the vote was conditional; that
is, the bargaining committee was authorized to call a strike
if the Respondent’s final offer did not contain significant
change. Therefore, the prestrike vote in this case does not
prove whether or not the the June 4 COLA proposal was a
motivating factor driving the employees to strike. Cf.
Reichhold Chemicals, supra, where the Board found that the
employer’s unlawful proposal was not presented to employ-
ees at strike vote meetings and therefore played no part in
their decision to strike.
Significantly, the Union did not arrange to have a mediator
attend the May 29 meeting, a prerequisite which Frakes un-
derstood was essential to obtaining strike sanction and finan-
cial support from the International. Further, the Local had not
taken other steps which generally are associated with strike
preparation. No assignments were made for picket line duty;
employees were not advised about strike benefits, and picket
line signs or posters were not ordered until after the May 29
meeting. Such conduct is not customary if employees have
a concrete and fixed strike date in mind.
Given this absence of strike preparation, it is fair to infer
that the union negotiators were seeking some change in the
Respondent’s offer that would justify postponing a strike, at
least so that the parties could bargain through the weekend
to the contract’s expiration date of May 31. Even though
Frakes indicated a strike would ensue when he first left the
bargaining table on May 29, it bears repeating that he made
this statement before he had reviewed the entire document
and consulted with the rest of his committee. As I concluded
above, it is now impossible to state with certainty whether
or not the Union might have continued to negotiate even for
several more days and avoided a strike were it not for the
Respondent’s demand that the employees forfeit their COLA
checks.
There can be no uncertainty that the Respondent’s position
on denying the June 4 COLA payment elicited immediate
and intense employee reaction which fueled commitment to
a strike. Thersson’s comment that the announcement hit them
like a bombshell surely reflected his coworkers’ sentiments
when they too learned that they would be deprived of over
$2000 for work already performed. Frakes instantly protested
the Respondent’s proposal, telling Downey that the employ-
ees would be engaged in an unfair labor practice strike. Sig-
nificantly, Frakes did not withdraw from negotiations until
after the employees discovered Respondent’s scheme to with-
hold the June 4 COLA. Again, speculation would be required
to say that the parties could not have made significant
progress toward agreement by bargaining throughout the
weekend were it not for the Company’s unlawful demand.
On the afternoon of May 29, the entire work force was
told that the strike was being called to protest Respondent’s
action on the June COLA payment. One employee, Patricia
Gomez, recalled that Howard Kaechle, a member of the bar-
gaining committee, explained that if the employees accepted
the final offer, they would not receive the COLA checks. On
all the foregoing facts, I conclude that the Respondent’s re-
fusal to pay the June 4 COLA was one of the principal rea-
sons the employees struck.
Even assuming that the Union had decided to strike before
learning of the Respondent’s position on the June 4 COLA,
it is fair to infer that the Respondent’s unlawful practice, by
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
22 General Counsel contends that by failing to furnish the Union with re-
quested information regarding the identity of strikers, Respondent engaged in
other unlawful conduct and thereby failed to meet another of Passavant’s
standards. However, I find below that Respondent did not unlawfully refuse
to supply the Union with names of employees who might be discharged for
strike misconduct.
23 In Struthers Well Corp., 262 NLRB 1080 (1982), the Board-ordered rem-
edy for the employer’s refusal to make COLA payments due under the terms
of an expired collective-bargaining agreement included the payment of the
COLA with interest.
24 One employee, Rachel Navarro, testified that she voted to remain on
strike because of her continued anger at the Company’s conduct in with-
holding the June 4 COLA. However, Navarro did not suggest that she or any
other employee expressed this view publicly at the August 3 meeting. There-
fore, I cannot conclude that her reason for prolonging the strike was widely
shared.
its nature, would have ‘‘a reasonable tendency to prolong the
strike and therefore afford a sufficient and independent basis
for finding’’ that the strike, economic in conception, was
converted to an unfair labor practice strike from the moment
that the workers left the plant. C-Line Express, supra at 638.
Although the parties were divided over other issues, there
can be no doubt that the Respondent’s conduct with respect
to the COLA payment was of overriding concern to the em-
ployees. The Union’s original unfair labor practice charge
filed on June 4 focused on the Respondent’s denial, and was
a topic of discussion between Downey and Frakes throughout
July. Respondent obviously understood the importance of this
matter since Vice President of Operations Luskey admitted
that the COLA checks were issued precisely in the hope of
ending the strike and wooing the employees back to work.
These circumstance offer ample proof that the Respondent’s
unlawful conduct was central to the issues that ‘‘stood in the
way of the parties reaching agreement on a contract’’ and
thereby ‘‘significantly interrupted and burdened the bar-
gaining process.’’ Id. at 638–639.
In sum, I conclude that there was a causal nexus between
Respondent’s unfair labor practice and the strike which com-
menced on June 1. The strike continued as a protest of Re-
spondent’s unlawful actions at least until August 3 when,
after having received their overdue COLA payments, the em-
ployees met to decide whether to abandon the strike. The
next question to be resolved is whether the strike continued
as an unfair labor practice strike after the August 3 meeting.
Respondent’s Failure to Fully Remedy its Unlawful
Conduct did not Prolong the Strike
The General Counsel and the Charging Party argue that
simply by issuing COLA checks on July 28, the Respondent
did not remedy its unlawful conduct in accordance with
Board requirements. Consequently, they reason that the em-
ployees continued to be unfair labor practice strikers until
they offered to return to work unconditionally on August 12.
In support of their argument, counsel rely principally on
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
In that case, the Board held that in order to escape liability
a respondent’s disavowal of unlawful conduct must be time-
ly, unambiguous, specific in nature to the coercive conduct,
and free from other proscribed illegal conduct. Further, there
must be adequate publication of the repudiation to the af-
fected employees, no proscribed conduct by the employer
after publication and assurances given to the employees that
their employer will not thereafter interfere with the exercise
of Section 7 rights.
Little analysis is needed to recognize, as counsel correctly
allege, that Respondent’s effort to cure its prior misdeed
failed to satisfy most of Passavant’s stringent standards. The
COLA checks were not issued until more than 7 weeks after
they were due. In Passavant, 7 weeks was found to be un-
timely. Far from disavowing its unlawful act, in the cover
letter accompanying the checks, Respondent maintained that
its action was proper. That letter also gave no assurance that
Respondent would not engage in the same or other unlawful
practices again.22 Further, the Respondent made no effort to
compensate the employees for the delay by granting interest
on the belated payments, a remedy which is owed to make
them whole, as the General Counsel properly contends.23
Consequently, because the Respondent has not entirely cured
its unfair labor practice, complete relief in accordance with
the Passavant criteria shall be recommended in the remedial
section of this decision.
However, it does not follow that because Respondent
failed to rectify its unfair labor practice as prescribed by
Board precedent that its conduct continued to prove ‘‘an ob-
stacle in negotiations’’ or prolonged the strike. C-Line Ex-
press, supra at 639. As discussed above, not every unfair
labor practice is causally connected to a contemporaneous
strike. The evidence must establish a nexus between the two.
In the present case, proof of causality is lacking. Minutes
taken at the union membership meeting of August 3 show
that the Respondent’s failure to pay the June 4 COLA had
no bearing on the employees’ decision to continue the strike.
Government witnesses who testified about the August 3
membership meeting did not suggest that the Company’s
former unlawful conduct was mentioned as a possible reason
for continuing the strike.24 Similarly, Secretary Greene’s
minutes of this meeting show that the Respondent’s earlier
unlawful behavior played no part in the strike vote. Finally,
it is noteworthy that although the Union initially grieved the
Respondent’s refusal to pay the June 4 COLA, at no time
did its request for relief include the payment of interest. On
these facts, I find no proof of a causal connection between
Respondent’s failure to completely cure its unlawful conduct
and the employees’ decision to continue the strike beyond
August 3. Reichhold Chemicals, supra at 75.
Respondent did not Unlawfully Refuse to
Provide Information
Paragraph 18(a) of the complaint alleges, in substance, that
from July 16 until August 11, Respondent refused to provide
the Union with the names of striking employees who would
be discharged or were being investigated for possible termi-
nation due to alleged picket line misconduct. Paragraph 18(b)
further avers that the strike was prolonged, in part, by this
refusal. For the reasons set forth below, I find that Respond-
ent acted with reasonable dispatch in supplying the requested
information to the Union. Since I do not find that the Re-
spondent violated the Act as alleged, it follows that the strike
did not continue as an unfair labor practice protest after Au-
gust 3.
No real dispute exists as to the legal principles applicable
to this facet of the instant case. Thus, it is well settled that
an employer has a duty to provide information relevant to the
Union’s performance of its duties that must be done with
reasonable dispatch following a union’s good-faith request
1087MOHAWK LIQUEUR CO.
which is sufficiently clear to place the employer on notice
as to the information requested. See generally NLRB v. Truitt
Mfg. Co., 351 U.S. 149 (1955).
As set forth in the fact statement, and as pleaded in the
complaint, the Union first raised the subject of possible dis-
charges for strike misconduct on July 16. At a collective-bar-
gaining meeting on that date, Frakes simply asked ‘‘if any-
one would be discharged and if so, who?’’ His inquiry im-
plies that he assumed the Respondent had made such deci-
sions already. He did not ask for the names of those who
might be or had been investigated.
I credit Downey’s testimony regarding her response to
Frakes. She told him candidly that although some employees
might be fired she had no names to give him for the Com-
pany had not made such decisions, and in fact, was holding
the matter in abeyance. She further explained that the Com-
pany had not even determined who might be investigated but
that each such individual would have an opportunity to
present his version of the alleged offense. Frakes did not pur-
sue the matter further; he did not even ask when such deci-
sions might be made. Given Frakes’ background as a sea-
soned negotiator, he certainly knew how to frame a clear and
specific request for information if that was his intent. Instead,
his question seemed to be posed casually and in an off-hand
manner. Downey did not attempt to conceal information. Her
failure to provide names on July 16 cannot be taken as a re-
fusal to provide information. She could not give what did not
exist.
Frakes did not return to this topic until July 27. Prior to
that date, the employees attended a union membership meet-
ing on July 17 at which time they agreed to continue the
strike. Frakes conceded that no questions were raised at the
meeting about discharges and he did not mention that the
Company had refused to provide information. Frakes and
Downey spoke next by phone on July 23 at which time he
assured her that if the June 4 COLA was paid, he could get
the employees back to work if they had all their jobs back.
Notwithstanding Frakes’concern with assuring positions for
all employees, he did not request information about indi-
vidual investigations or potential terminations.
When Downey informed Frakes during a July 27 tele-
phone call, that the the COLA checks would be issued, he
asked whether that meant that all the employees could return
to work. Downey replied with a nonsequitur; in effect, she
said that the Company had not turned away anyone who had
offered to return to work. Frakes then mused that some em-
ployees might be fired for strike misconduct and suggested
that the Union could grieve any discharge decisions which it
disputed. Frakes may have assumed that he impliedly had re-
newed his July 16 request for the names of those who would
be discharged, but he did not literally request such informa-
tion from Downey. Even if his generalized comments could
be construed as a request, Respondent did not withhold infor-
mation for at that time no one in management had focused
on which of the strikers might be dismissed. In fact, apart
from an effort during the first week of the strike to marshall
evidence in support of a preliminary injunction, Respondent’s
officials had not reviewed any data to determine which em-
ployees would be investigated because of alleged picket line
misconduct.
On July 28, or shortly thereafter, the employees received
their COLA checks with a cover letter advising them that
they would be permanently replaced unless they returned to
work by August 5. Notwithstanding this deadline, Frakes at-
tempted to reach Downey by phone only once on July 31.
When that proved unsuccessful, he did not try to call her
again although he had her itinerary and phone numbers.
Before his next contact with Downey, Frakes met with the
union members on August 3. He and the Union’s attorney
informed the members that the NLRB had not determined
whether the strike would be considered an unfair labor prac-
tice or an economic strike now that the June 4 COLA pay-
ment was no longer an issue. Frakes further stated that the
Company would not take back at least six of the strikers, and
that the Union would file a charge accusing the Company of
refusing to supply the names of those who would be termi-
nated. The membership then voted to continue the strike and
directed Frakes to obtain those names and make one final ef-
fort to wrest better terms from the Respondent at a bar-
gaining session scheduled for August 11.
Although the need for the names of possible dischargees
was purportedly urgent, Frakes made no effort to telephone
or cable management. Instead, the Union’s next contact with
Respondent was via a letter dated August 3 in which for the
first time, Frakes specifically requested the names of strikers
who allegedly committed acts of misconduct on the picket
line, the dates of such occurrences and the substance of the
alleged offense. This also was the first time that the Union
had asked for information about employees who might be in-
vestigated, rather than those whom the Company had decided
to discharge.
A second letter followed on August 4 to correct inaccurate
dates recited in the previous writing. Both letters alleged that
Downey had refused Frakes’ two prior requests for informa-
tion about ‘‘striking employees who, according to the Em-
ployer have forfeited their reinstatement rights due to ’mis-
conduct’ during the strike.’’ Based on findings set forth
above, this accusation was groundless.
Further, both the August 3 and 4 letters asserted that the
refusal to supply this information was ‘‘of major concern to
the Union’’ and ‘‘a stumbling block in our negotiations.’’
Notwithstanding this claim, both letters were sent by regular
mail and did not reach Downey’s San Francisco office until
at least 4 days later. No copy was sent to Luskey, although
he was Respondent’s senior official on site. On August 4, be-
fore the letters could reach their destination, the Union filed
an unfair labor practice charge based on the alleged refusal
to furnish information. If time was of the essence, and indeed
it was, the Union could have telegraphed its request or
rushed the letters by express mail, a form which the Union
used when sending an unconditional offer to return to work
on behalf of the strikers a week later. Since Frakes had Dow-
ney’s complete itinerary, he could have attempted to reach
her by phone. The Union’s lack of diligence in this affair
wholly defeats its contention that the failure to obtain the re-
quested information was a stumbling block to negotiations.
I do not imply that the union members had no legitimate
need to obtain the requested information, nor do I suggest
that they were disinterested in determining whether some of
their fellow workers might be discharged. However legally
justified the inquiry may have been, the Union’s dilatory be-
havior indicates that it did not pursue the quest for informa-
tion with a real sense of urgency or view the receipt of the
names as critical to further negotiations. Instead, it appears
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
25 Although a request for the names of strikers accused of strike misconduct
and a request for amnesty may share a common purpose, they are not inter-
changeable. The former looks to the receipt of specific names; the latter seeks
group relief regardless of individual wrongdoing.
26 Quoted in C-Line Express, supra at 638.
27 All but one of the permanent replacements were hired prior to August 5.
However, they were terminated on August 4 and rehired on August 5 when
the strikers failed to return to work.
The Charging Party submits that the strikers should have been afforded a
reasonable period of time—until August 14—to receive the names of strikers
who might be discharged and of strike replacements, so that they could evalu-
ate the bona fides of Respondent’s intent to reinstate all of them on August
4. If the employees truly wanted to test Respondent’s word, the most reliable
method would have been to appear for work on August 4. Alternatively, if
the requested information was as crucial as alleged, the Union could have re-
quested that the Respondent extend the August 4 deadline until it was received
and evaluated.
28 The General Counsel and Charging Party contend that the Respondent
wrongfully continued to hire strike replacements after receiving the Union’s
offer to return to work at noon on August 13. The Union separately argues
that the Respondent had a duty to refrain from hiring replacements after it
learned informally prior to August 13 that an offer to return was forthcoming.
Luskey admitted to hearing ‘‘a rumor’’ that the employees would offer to re-
turn, but he had no confirmation of this fact, and no knowledge of when the
offer might be transmitted. The record also shows that a permanent replace-
ment started working on August 13 after previously being interviewed and tak-
ing a physical exam, before Luskey had the Union’s offer in hand. In these
circumstances, I do not find that the Respondent acted improperly by putting
a replacement employee to work on August 13.
29 These same conclusions also make it unnecessary to decide whether, by
subsequently ratifying a collective-bargaining agreement in November, which
was retroactive to June 1, the employees waived their right to backpay and
other benefits which would have been due if the expired agreement were still
in effect. The parties’ arguments regarding waiver were premised on assump-
tions which have not been adopted; that is, that the Respondent’s unfair labor
practices prevented it from legitimately implementing its final offer prior to
the date the Union ratified the successor contract and that the workers retained
their status as unfair labor practice strikers.
30 Uncontroverted evidence shows that former employees Bint, Cules,
Fregonara, Grabowski, Mackay, and Macklin resigned or retired on various
dates in 1988 and thereby extinguished their reinstatement rights. In addition,
Dallas Easterwood and Timothy Kersmen have been on physical disability
leaves since before June 1, 1987, and although offered reinstatement on Au-
gust 17 were unable to return to work.
that the Union may have charged the Respondent with a re-
fusal to supply information in an effort to protect its mem-
bers as unfair labor practice strikers until one last effort
could be made at the August 11 bargaining session to seek
amnesty and improve the terms of the final offer.25 As the
Court observed in Soule Glass Co., supra, 652 F.2d at 1080
. . . in examining the union’s characterization of the
purpose of the strike, the Board and the court must be
wary of self-serving rhetoric of sophisticated union offi-
cials and members inconsistent with the true factual
context.26
Within several days after Downey received the Union’s re-
quest she and Luskey reviewed the available documentation
and prepared an appropriate response which she delivered to
Frakes on August 11. Her prompt attention to the Union’s
inquiry was typical of the way that Downey did business.
Never before had she deprived the Union of information. She
had no conceivable reason to withhold such information on
this occasion and indeed did not do so. When she received
a clear and specific request, she responded with more than
reasonable dispatch. See Snively Groves, Inc., 109 NLRB
1394 (1954). Downey’s and Luskey’s conduct on behalf of
the Respondent in this regard did not violate the Act.
In sum, when the entire factual actual context is consid-
ered, it becomes evident that the Respondent’s purported re-
fusal to supply information did not really hinder negotiations.
Further, the Respondent did not unlawfully refuse to supply
information as alleged in the complaint and, thus, was not
guilty of violating the Act. Therefore, even if the employees
voted to continue the strike in part on the good faith but mis-
taken belief that the Respondent had willfully refused to sup-
ply the names of potential discharges, that belief does not
alter the legal status of the strike. See Burlington Homes, 246
NLRB 1029, 1045 (1979).
Since the Respondent did not commit an unfair labor prac-
tice by refusing to divulge names in a timely manner, the
strike may not be characterized as an unfair labor practice
strike after August 3. Instead, on that date, it became a strike
addressed solely to economic issues. At this juncture, with
the parties at impasse only over contract terms, the Respond-
ent could lawfully implement its final offer.
Reinstatement Issues
Since the work stoppage was converted to an economic
strike on August 3, the workers then became economic strik-
ers. As a matter of law, the Respondent then was entitled to
and did hire permanent replacements on August 5, as it in-
formed the Union it would do if the strikers failed to return
to work by that date.27 Thereafter, the Respondent had no
legal duty to reinstate former strikers who unconditionally
offered to return to positions held by permanent replace-
ments.28 NLRB v. Mackay Radio & Telegraph Co., 304 U.S.
333, 345–346 (1938). Subsequent to Respondent’s recall to
fill remaining vacancies, 15 union members properly were
returned to work on August 17 under the operative terms of
the final offer. Given the foregoing conclusions, claims that
the employees were unfair labor practice strikers entitled to
immediate reinstatement when they unconditionally offered
to return to work are without merit.29
Of course, economic strikers remain employees indefi-
nitely even after they are replaced, and are entitled to rein-
statement to current or future vacancies as they arise. See
Laidlaw Corp., 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969), cert. denied 397 U.S. 920 (1970). In accord-
ance with Laidlaw, Respondent is required to offer positions
to employees listed in paragraph 19(f) of the complaint as
vacancies occur, with the exception of those who subse-
quently retired, resigned, or were justifiably terminated for
strike misconduct.30
The complaint alleges in paragraphs 20(b) through (d) that
Respondent improperly delayed reinstating four named em-
ployees for varying periods of time. Such delays are unlaw-
ful ‘‘unless the employer can show that his action was due
to ‘legitimate and substantial business justifications.’’’ NLRB
v. Fleetwood Trailers Co., 389 U.S. 375, 379 (1967). The
Respondent submits that the delay in reinstating each of the
workers named in the complaint was based on legitimate
business concerns. I find support in the facts and the law for
Respondent’s position.
A preliminary question here is whether the Respondent
had good cause to recall the former strikers and begin inter-
views with employees accused of picket line misconduct on
August 17 rather than August 14, the date that the Union of-
fered to return. In addressing this issue, Respondent pre-
sented uncontroverted evidence that time was needed to ar-
range job manning and production schedules, thereby making
1089MOHAWK LIQUEUR CO.
31 Psykala, interviewed about a single nail-throwing incident, was absolved
when Respondent was unable to prove that any property damage occurred.
Kaechle, who was accused of yelling at a company manager and asking a re-
pairman not to enter the facility, redeemed himself by apologizing to the man-
ager.
32 Of the five who were not discharged, only one, Kaechle, was senior
enough to return to work. Psykala also was reinstated after he was inter-
viewed, but his name was not on the list which Downey gave to Frakes on
August 11.
33 Clear Pine Mouldings, 268 NLRB 1044 (1984), quoting NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 527 (3d Cir. 1977).
August 17 the earliest feasible date on which it could arrange
for the efficient return of the strikers. Evidence also was ad-
duced that the Company had a consistent practice of recalling
employees from layoff at the start of a new workweek,
which in this case was August 17.
The date selected to recall the former strikers was within
the 5-day period that the Board has found ‘‘justified as pro-
viding a reasonable period of time for employers to accom-
plish those administrative tasks necessary to the orderly rein-
statement of the unfair labor practice strikers.’’ Drug Pack-
age Co., 228 NLRB 108, 113 (1977), enfd. in part 570 F.2d
1340 (8th Cir. 1978). An employer also needs time to attend
to administrative tasks in recalling economic strikers and to
prepare for investigatory interviews with strikers accused of
picket line misconduct. Furthermore, the Respondent had rea-
son to believe that employees would be unwilling to attend
such interviews until the strike had ended and their cowork-
ers had returned to work.
I turn next to the evidence regarding the reinstatement of
four employees named in the complaint. The Respondent
asked George Psykala and Howard Kaechle to report to the
facility on August 17 for investigative interviews to deter-
mine whether discharges were warranted for alleged strike
misconduct. Based on these interviews, the Company decided
not to discharge either man and sent mailgrams offering them
reinstatement.31 Psykala returned to work on August 19, the
day after receiving notice of his reinstatement. Kaechle did
not respond to a mailgram but on August 20 encountered
Luskey by chance, and acceded to his request that he apolo-
gize to the manager in question. Kaechle offered his apology
the following day and returned to work on August 24.
Respondent had a legitimate interest in investigating inci-
dents of alleged strike misconduct before returning suspected
perpetrators to the plant. After conducting a brief review of
the facts related to Psykala’s alleged misconduct, Respondent
promptly reinstated him. The delay in reinstating Kaechle
was not the Company’s doing. Kaechle offered his apology
just 1 day after Luskey was able to reach him, but that fell
on Friday, August 21. His reinstatement took place on Mon-
day, August 24, the start of a new workweek when the Com-
pany customarily recalled laid-off workers. Based on these
facts, I do not find that Respondent wrongfuly delayed rein-
stating either Psykala or Kaechle.
The complaint further alleges that Respondent unlawfully
failed to reinstate George Mamer until September 14 and
James Cole until November 23. However, Respondent pre-
sented uncontroverted evidence that Mamer was recalled ac-
cording to plant seniority by classification as soon as there
was an opening for another mechanic. Cole was recalled on
November 20 to fill a vacancy created when Respondent dis-
charged a permanent replacement whose skills proved unsat-
isfactory. However, Cole had accepted a position with an-
other firm on June 2 and rejected the job offer. Given this
uncontradicted evidence, I conclude that Respondent adduced
evidence showing legitimate business reasons to justify its
delay in offering reinstatement to both Mamer and Cole.
The Discharge of Employees for Picket
Line Misconduct
In the several months following the strike’s cessation, the
Respondent interviewed each of the 12 employees whose
names had been provided to the Union. Subsequent to these
interviews, Respondent discharged 7 of the 12.32 During the
trial in this case, I granted the Government’s motion to
amend counts in the complaint, effectively dismissing allega-
tions of discrimination with respect to former employees
Jerry Helton and Manuel Medina. The remaining allegations
deal with the propriety of Respondent’s decisions to termi-
nate Mary Louise Witmer, Patricia Gomez, Michael Nowak,
Mary Suyak, and Ursula Binder.
The Legal Framework
It is well settled that employees who have committed seri-
ous acts of strike-related misconduct are not entitled to rein-
statement. However, if an employer defends its refusal to re-
instate an employee on these grounds, it need not prove that
the accused employee actually committed the acts alleged;
only that it had an honest belief in the employee’s guilt. If
the Respondent succeeds in making this showing, the Gen-
eral Counsel then bears the burden of proving either that the
employee was not responsible for the acts alleged or that the
conduct was not serious enough to warrant discharge. Gem
Urethane Corp., 284 NLRB 1349, 1354 (1987). In deter-
mining what sort of conduct will be regarded as sufficiently
egregious to justify discharge, the Board has adopted an ob-
jective test which asks ‘‘whether the misconduct is such that,
under the circumstances existing, it may reasonably tend to
coerce or intimidate employees in the exercise of rights pro-
tected under the Act.’’33 In addition, the General Counsel
submits that where appropriate it is necessary to balance the
employer’s unfair labor practice which provoked the indus-
trial disturbance against whatever employee misconduct may
have occurred in the course of the strike.’’ NLRB v. Thayer
Co., 213 F.2d 748, 755 (1st Cir. 1954). In accordance with
these standards, I next review the evidence bearing on the
discharges of the five employees named in the complaint.
Mary Louise Witmer
Respondent cited two incidents in which Witmer allegedly
was involved: blocking the ingress of a truck-trailer and
throwing rocks at a car.
In the first incident, which occurred soon after the strike
began, Witmer, with a number of other employees, blocked
a truck, preventing it from entering the plant grounds for ap-
proximately 20 minutes. Witmer had no recollection of the
incident although Luskey identified a photograph which was
taken at his direction, showing that she did engage in this
blocking episode. However, Luskey acknowledged that
Witmer would not have been discharged for participating in
this episode alone. Moreover, other employees who engaged
in blocking suffered no sanctions. Therefore I am inclined to
believe that Respondent regarded this incident as a
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
34 I doubt that Witmer threw rocks (a term which implies objects more mas-
sive than stones or pebbles) as Respondent alleged, for she is a small woman,
and by Scribner’s own account, threw only what she could hold in one hand.
35 Proof of discriminatory intent is not necessary to show that an employer’s
conduct reasonably tended to interfere with, restrain, or coerce an employee
under Sec. 8(a)(1). Roadway Express, 250 NLRB 393 (1980).
makeweight, basing its decision to discharge Witmer prin-
cipally on her involvement in a second incident.
On July 24, Scott Scribner, an applicant for employment,
was driving away from the plant in his 1977 auto. He ob-
served five women picketing on the right-hand side of the
road, the last of whom had her hand raised in a clenched fist
as if to throw something. As he drove past them, he heard
a clanking sound on the right rear side of the car. Shortly
after leaving the area, he stopped to examine his car, finding
five or six small chips and one dent on the right rear side
of the vehicle which he had freshly painted the month be-
fore. While Scribner was at a medical clinic taking a pre-em-
ployment physical exam, Plant Manager Cliff Krieger, who
had heard about the incident, telephoned him to determine
what had happened. Scribner told Krieger about his experi-
ence and described the woman he believed was responsible
as short, chunky, black-haired Mexican in appearance, wear-
ing black shorts and a pink top. Krieger confirmed that this
description fit Witmer, the same person who two security
guards at the scene had identified as the person who had
thrown stones at the car. Later that day, Scribner filed a po-
lice report. However, he did not have his car repaired or ob-
tain an estimate until a month later. Then, on August 19,
after Krieger asked him for a statement about the incident,
Scribner took the plant manager’s advice and obtained an es-
timate for $131.
At her discharge interview, Witmer said she could not re-
call such an event; at the trial she stated emphatically that
she never had thrown anything other than a wad of paper at
passing cars. Two fellow employees who had picketed with
Witmer on July 24 testified that they had not seen her throw
anything at all.
Scribner seemed to be a completely impartial witness; he
did not invent the damage to his car and had no discernible
reason to point a finger of blame at Witmer rather than at
one of the other women with her. Further, two security
guards identified Witmer as the perpetrator.
In assessing Respondent’s motivation in this matter, I bear
in mind that Luskey and Downey did not seem to approach
these interviews intent on ridding the Company of as many
union supporters as possible, since they recalled as many of
the employees as there were vacancies, and retained five of
those who were investigated, two of whom had sufficient se-
niority to return to work. Thus, there is no evidence that Re-
spondent was motivated by antiunion animus in terminating
Witmer or, indeed, any of the other employees who were dis-
charged. I further note that the proper test against which to
measure these discharge decisions is whether Respondent
held an honest belief in a striker’s culpability, not whether
that striker was guilty beyond a reasonable doubt. Given
these considerations, I am persuaded that the Respondent’s
officials honestly believed that Witmer was responsible for
the damage to Scribner’s car and discharged her principally
for this reason.
Witmer’s testimony was predictably self-serving and not
very reliable given her inability to acknowledge blatant mis-
conduct by another striker, Medina, that was committed in
her presence. Although two witnesses testified in Witmer’s
behalf, their efforts to vindicate her were weakened by the
fact that they could not have observed her at every moment
during the entire picketing shift. Therefore, I do not find
their testimony sufficiently convincing to overcome evidence
of Witmer’s wrongdoing.
Whether Witmer’s conduct was egregious enough to war-
rant discharge raises a separate issue. Addressing this prob-
lem in GSM, Inc., 284 NLRB 174 (1987), the Board reversed
an administrative law judge who found that kicking, slap-
ping, and throwing beer cans at moving vehicles was ‘‘‘rel-
atively innocuous’ because they were ‘unaccompanied . . .
by verbal or other intimidating conduct,’ because the strikers
themselves ‘did not exhibit any threatening or violent de-
meanor’. . . and/or because their assaults did not actually
damage those vehicles.’’’ Id. at 174. Without considering
whether the employer’s unfair labor practices had provoked
the strikers in accordance with the Thayer doctrine, the
Board found that such conduct
is intimidating enough in and of itself without being ac-
companied by additional threats. . . . [W]hile such
conduct might be ‘‘relatively innocuous’’ when meas-
ured against more violent behavior, it nevertheless is
violent conduct which may reasonably tend to coerce or
intimidate employees in the exercise of their rights pro-
tected under the Act.
See also Western-Pacific Construction Co., 272 NLRB 1393,
1395 (1984), affd. 782 F.2d 839 (9th Cir. 1986).
I have little doubt that Witmer threw some stones or, more
likely, pebbles at Scribner’s car.34 It also seems clear that her
conduct comes within the type proscribed in GSM, Inc. How-
ever, on the evidence presented here, it cannot be said that
under all the circumstances her conduct coerced or intimi-
dated any employee. Clear Pine Mouldings, supra. Indeed,
the evidence affirmatively suggests that the single employee
involved was not at all affected by the experience. Scribner
obviously was nonchalant about the matter; it did not occur
to him to file a police report until Krieger’s question planted
the idea in his mind; he did not intend to repair his vehicle
and, in fact, did not even obtain an estimate until Krieger re-
quested that he do so some 3 weeks after the fact. He did
not report the matter to the Company until asked to do so.
No evidence was introduced at the trial that any other em-
ployee saw or heard about this incident. Hence, there was no
showing that any employee tended to be or was in fact in-
timidated by Witmer’s act. Consequently, Respondent has no
lawful reason to deny her reinstatement.
In reaching this conclusion, I recognize that Respondent
did not act with antiunion animus and, therefore, did not vio-
late Section 8(a)(3). At the same time, Witmer was dis-
charged unjustifiably while engaging in protected concerted
activity. Therefore, in terminating Witmer, I conclude that
Respondent violated only Section 8(a)(1) of the Act.35
Patricia Gomez
Gomez was terminated for her alleged involvement in
three incidents: putting a nail-studded piece of wood under
the tire of a truck leaving the facility on June 8; threatening
1091MOHAWK LIQUEUR CO.
and swearing at Luskey, and striking an employee’s car with
a picket sign.
On June 8, while standing on the Company’s loading
dock, Company Purchasing Manager Greg Zalut saw Gomez,
who was some 40 feet away, carry a two-by-four piece of
wood to the front of a truck as it was leaving the premises.
Zalut momentarily lost sight of Gomez and did not see her
throw anything. However, he did see a board flipping around
in the street. When Gomez came back into Zalut’s view, she
was empty handed, but then, she picked up two pieces of
wood lying in the street and tossed them aside. Minutes later,
Luskey contacted the truckdriver and learned that the tire on
the driver’s side had been punctured by nails and was losing
air.
Several weeks later, aided by binoculars, Zalut again saw
Gomez throw a small piece of wood in the path of an exiting
truck. When the truck was gone, he observed her collect a
few pieces of wood and toss them under a parked van. He
reported the matter to Luskey, but he did not raise this dur-
ing her interview.
The second incident occurred as Luskey was leaving the
plant to escort temporary replacements. He testified that
Gomez shouted in a threatening manner that he ‘‘better not
try to . . . bring these people into the plant.’’ Gomez admit-
tedly followed Luskey in her car to see where he was meet-
ing the replacements. Luskey further stated that on his return,
as he was crossing the picket line with the replacements,
Gomez shouted an obscenity at him.
A replacement employee, Marian Ward, who met Gomez
when she first worked at the plant several years before, testi-
fied about the third incident. As Ward was riding in a car
toward the plant, Gomez, in a band of strikers, hit the hood
of the vehicle on the passenger side with a picket sign. How-
ever, the car was unharmed.
As in the Witmer case, I find sufficient evidence to sup-
port the Respondent’s claim that it acted upon an honest be-
lief in Gomez’ guilt. While Zalut was some distance away
from Gomez, he had no reason to single her out from the
rest of the picketers. Neither Luskey nor Ward had any mo-
tive to place blame on her either. Ward, in particular, did not
impress me as being at all vindictive. If Respondent wanted
to bolster its case against Gomez, Zalut could have insisted
that he saw the entire incident. Instead, he only related as
much as he observed. It is not critical that he did not actually
see Gomez throw the wood; a strongly supported inference
alone will suffice to establish Respondent’s good-faith belief
in her liability.
I do not find that Gomez’ denials of wrongdoing were
anymore compelling than Witmer’s. Indeed, by admitting
that she followed Luskey’s car, Gomez revealed a keen inter-
est in the replacements. It takes little imagination to translate
that interest into anger which led her to commit the acts as
alleged. Assertions by fellow strikers that they did not see
Gomez throw any wood suffers from the same deficiency
that impaired the testimony of Witmer’s witnesses; that is,
they could not attest that they observed her 100 percent of
the time. I conclude, therefore, that the General Counsel has
not established Gomez’ innocence. Overall, her conduct ex-
ceeded the bounds of protected strike activity. Accordingly,
Respondent is not obliged to reinstate her.
Mary Suyak
Suyak was interviewed about her alleged role in two of-
fenses: taking a cap from an employee while threatening
him, and spraying cars with an abrasive liquid.
Employee Anthony Edwards testified that as he drove to
work on June 1 with his car window half open, Suyak,
whom he knew casually, reached in, seized a Mohawk base-
ball cap from his head, and told him he would not get it
back until she returned to work. Edwards, who claimed that
this remark made him nervous, reported it immediately to
Luskey. Suyak admitted taking the cap but said it was mere-
ly a joke. She did not recall making the comment that Ed-
wards attributed to her. Edwards’ apprehension hardly seems
reasonable given Suyak’s harmless words and deed. I fail to
see any threat implied by her comment. Considering that Ed-
wards was crossing a picket line on the first day of the strike
when the employees just had learned they were losing their
earned bonus, it is easy to imagine that Suyak viewed Ed-
wards’ Mohawk cap as if it were a matador’s cape. Standing
alone, this incident is too trivial to rise to the level of a dis-
chargeable offense. See Superior Bank, 246 NLRB 721, 724
(1979).
Three company employees, who were driving one behind
the other in caravan style was they left work on June 23, tes-
tified about another incident involving Suyak. Production
Planner Robert Clemens stated that he was driving directly
behind employee Peg Burns and Greg Zalut when he saw
Suyak on the right-hand side of the road holding a squirt bot-
tle. As the two cars ahead of him passed her by, he saw
Suyak squirt each one with a clear liquid. Clemens said that
he swerved away but stared directly at Suyak, causing her
to conceal the bottle behind her back. Clemens talked to
Zalut and Burns the next day and on examining their cars
observed streak marks along the passenger side which ap-
peared to have been caused by dissolved paint. He reported
the matter to Luskey and gave a statement to the police early
the next week.
Zalut’s testimony is consistent with Clemens’. As he slow-
ly drove by, he saw Suyak with her hand raised holding a
squirt bottle. The next instant, he found his windshield
streaked with what he initially thought was water. He tried
to clean the window with his windshield wiper but when this
worsened matters, he stopped at a gas station to clean the
window more thoroughly. At that time, he was unaware that
any liquid had spilled onto the body of the car. It was not
until he washed his car over the weekend that he found
streak marks on the passenger side, roof, and trunk of the
car. On Monday, June 29, he obtained an estimate of over
$500 to repair the damage, a copy of which he gave to
Luskey.
Peg Burns, formerly an accounts receivable manager with
Respondent, explained that she was intent on following Zalut
as closely as possible when they left the plant. Therefore, al-
though she saw Suyak holding a bottle, she did not observe
her squirting anything from it. Not until early the next morn-
ing when Clemens asked if her car was damaged did she in-
spect it and discover that some oily substance had streaked
and discolored its top and side.
Suyak disclaimed responsibility for damaging these vehi-
cles both at her interview and at trial. The General Counsel
and Charging Party presented no witnesses in Suyak’s behalf.
Instead, they made much of the fact that Zalut and Burns did
not discover the damage to their cars right away so that
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
36 Binder was out of the area until the time of her interview. Although
Luskey questioned her about throwing rocks, Respondent did not pursue this
allegation at the instant hearing.
someone other than Suyak could be responsible. They also
pointed out that inconsistent dates were cited for the occur-
rence. Neither of these defenses disturb the conclusion that
Respondent acted upon an honest belief that Suyak was re-
sponsible for causing fairly extensive property damage. Both
of the questions raised by counsel are easy to explain. Burns
did not refer to a date which differed from the one men-
tioned by Zalut and Clemens. Rather, the record shows that
Respondent’s counsel inadvertently proposed an incorrect
date in posing a question to Burns. Luskey, too, merely cited
the date on which reports were made to him, rather than the
correct date of the incident. Regardless of this slight confu-
sion, it is clear that Clemens, Zalut, and Burns all recalled
and spoke of the same event. Further, Zalut’s and Burns’
failure to observe the damage to their cars immediately may
be due to the fact that the spray was colorless and the car
paint apparently did not corrode instantaneously. In any
event, even if I were to conclude that the General Counsel
and Charging Party succeeded in creating a reasonable doubt
about Suyak’s culpability, that is not enough to satisfy the
burden of proving she did not commit the offense. Accord-
ingly, I conclude that Suyak was lawfully discharged.
Michael Nowak
Respondent interviewed Nowak about three incidents, the
first of which involved blocking ingress of a truck on June
5, together with Witmer and other employees.
He also was charged with a more serious offense: throw-
ing nail-spiked wood under the tires of a truck departing
from the plant on June 5. Using binoculars from a vantage
point in the plant, Luskey observed Nowak running along the
driver’s side of an exiting leased truck as another striker,
Jerry Helton, ran on the passenger side. Both men tossed
pieces of wood under the truck’s tires. After the truck de-
parted, Luskey saw Nowak retrieve the wood. About an hour
later, the truck’s lessor called Luskey to inform him that
pieces of wood with nails countersunk into them had pierced
and flattened several of the truck’s tires. A police report was
filed by the driver the same day.
Employee Diane Reno testified about a third incident
which occurred on August 7. As she was returning to work
after lunch in a car driven by a coworker, Connie Johns, a
stone hit the car making a small chip in the windshield.
Johns stopped the car and walked over to a group of strikers
on the roadside. Nowak then stepped out in front of the
group and hurled several obscenities at her. Johns and Reno
immediately reported the encounter to Luskey and filed a
complaint with the police the same day.
At his interview and in this proceeding, Nowak denied
having thrown wood under a truck or a stone at John’s car.
Some months after the latter incident, Luskey learned that
neither Johns nor Reno had seen anyone throw the stone at
the car. (Apparently, they assumed Nowak was responsible
because he had stepped forward when Johns left her car.)
Luskey indicated at the trial that based on this new quali-
fying information he reassessed his decision to terminate
Nowak and concluded that his discharge still was warranted
based on the seriousness of Nowak’s participation in the June
5 wood-throwing incident. See Roure Bertrand Dupont, Inc.,
271 NLRB 443, 444 (1984).
In light of the information which Luskey had on hand at
the time of Nowak’s discharge, it is clear that the Company
possessed sufficient evidence to form an honest belief that
Nowak had engaged in three incidents of strike-related mis-
conduct. Respondent would concede that Nowak’s participa-
tion in the June 5 blocking episode was not enough standing
alone to justify discharge. Luskey further suggested that reli-
ance on the incident involving John’s car probably was un-
sound. Therefore, the General Counsel only had to establish
that Nowak was not involved in damaging a truck on June
5.
When a truck leaves a facility with its tires intact, passes
over pieces of wood thrust in its path, and shortly thereafter
winds up with flat tires caused by punctures made by nails
countersunk in wood, a reasonable person would infer a
causal connection between these events. Such an inference is
warranted here. The best that can be said in Nowak’s defense
is that the evidence failed to prove whether he or Helton
bore greater responsibility for spiking the truck’s tires. In
GSM Inc., supra at 174–175, the Board found that even in
the absence of evidence that a striker was directly engaged
in coercive or intimidating conduct, ‘‘his active cooperation
with pickets engaged in such conduct justified his dis-
charge.’’ Similarly, although there is no proof that Nowak
handled wood with nails embedded in it, he joined in a ven-
ture with someone who apparently did. It is clear that he and
Helton were bent on doing some mischief to the truck and
must accept responsibility for the consequences of their acts.
Thus, his ‘‘active cooperation with [Helton] in such conduct
justified his discharge.’’ Ibid.
Ursula Binder
Ursula Binder was interviewed in mid-October about inci-
dents which occurred on July 20: throwing rocks at and
spraying paint remover on a car.36
Joaquin Guerrero began working for Respondent in the
guise of a newly hired employee. In reality, he was em-
ployed by a business loss prevention firm and assigned to
work at the Mohawk plant to detect possible thefts or sabo-
tage by new hires. As he drove toward the facility on July
20, a woman whom he later described as blonde-haired, ap-
proximately 5’ 9’’ tall, wearing a red tank top, blue jean
shorts, and sandals, began yelling obscenities at him.
When leaving the plant, Guerrero (who used the alias Her-
nandez at work) noticed the same woman holding a squirt
bottle walk toward the driver’s side of his car. He began roll-
ing up his window just as she squeezed the bottle, spraying
the side of his car with some liquid. He left the immediate
vicinity but stopped minutes later to telephone the police and
his supervisor, Dominowski. Guerrero inspected his car to
find paint dripping down a wide swath on the driver’s side.
When his supervisor arrived, Guerrero explained what had
happened and described the woman he had seen squirt his
car.
Dominowski telephoned Luskey and told him about the in-
cident. Then he drove to the facility and seeing only one
picketer who fit Guerrero’s description, photographed her as
she was approaching a white automobile. Guerrero identified
the woman in the photo as the same person who squirted his
1093MOHAWK LIQUEUR CO.
37 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 objec-
tions to them shall be deemed waived for all purposes.
car. It was Ursula Binder. Guerrero subsequently obtained an
estimate of over $1000 to repaint the vehicle.
Binder adamantly denied any complicity in this episode.
However, she acknowledged that she generally fit Guerrero’s
description, that she was the person in the photograph and,
as the photo showed, was approaching her white car at the
end of her picket line tour of duty. Based on the accuracy
of Guerrero’s description and proof that extensive damage
was done to his car, Luskey formed an honest belief in Bind-
er’s guilt.
The General Counsel points to some slim evidence that in-
dicated another woman picketer may have fit the description
given by Guerrero. However, the government did not
produce her as a witness in order to determine whether she
was picketing on the date in question, whether she owned the
same clothing that Binder wore on that occasion, or whether
Guerrera truly mistook Binder for her. The government, not
the Respondent, has that obligation since it bears the affirma-
tive duty to establish innocence.
The Charging Party further suggested in its brief that pre-
senting a single picture of Binder to Guerrera, rather than a
photo array, was impermissible suggestive. The strictures of
criminal procedure do not set the standards for appropriate
conduct in this forum. Counsel have made a valiant effort to
cast doubt on Guerrera’s identification of Binder, but they
have not established, in accordance with Board standards,
that she did not commit the wrongful act for which she was
discharged.
CONCLUSIONS OF LAW
1. Mohawk Liqueur Company, is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. General Industrial Employees Union, Local 42, Dis-
tillery Rectifying, Wine and Allied Workers’ International
Union, AFL–CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. At all times material, the Union has been the exclusive
bargaining agent for purposes of collective bargaining within
the meaning of Section 9(a) of the Act of employees in the
following appropriate bargaining unit:
All full-time and regular part-time employees employed
by Respondent at its facility located at 42700 Mohawk
Drive, Novi, Michigan, but excluding Teamsters, sales-
men, professional employees, office clerical employees,
managerial employees, guards and supervisors as de-
fined in the Act.
4. The Respondent violated Section 8(a)(1) and (5) of the
Act by failing to bargain in good faith with the Union in that
it failed and refused to pay a cost-of-living allowance
(COLA) due under an unexpired collective-bargaining agree-
ment; insisted to impasse that the Union forgo and/or bargain
about the accrued and vested COLA as if it were a manda-
tory subject of bargaining; and unilaterally implemented the
terms and conditions of its final offer without having reached
a valid impasse on June 1 until August 3, 1987.
5. The strike, which commenced on June 1, 1987, was
caused and prolonged in part by the Respondent’s unfair
labor practices and, thus, was an unfair labor practice strike
from its inception until on or about August 3, 1987. After
that date, the strike continued as an economic strike. The Re-
spondent was lawfully entitled to implement its final offer on
or about August 4 and hire permanent replacements from
August 5 until August 13, when it received an unconditional
offer to return to work submitted by the Union on the em-
ployees’ behalf.
6. The Respondent violated Section 8(a)(1) of the Act by
discharging employee Mary Louise Witmer for engaging in
protected concerted strike activity.
7. The Respondent’s unfair labor practices referred to
above affect commerce within the meaning of Section 2(6)
and (7) of the Act.
8. Allegations in the consolidated complaint which were
found to lack merit shall be dismissed.
THE REMEDY
Having found that the Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom and take certain affirmative action set forth
below designed to effectuate the policies of the Act, includ-
ing the posting of an appropriate notice to inform employees
that it will not engage in further vioations of the Act.
In addition, having found that Respondent withheld the
cost-of-living allowance owed employees from June 4 to July
28, 1987, I shall order Respondent to make whole all em-
ployees who were members of the bargaining unit during the
period of time that the COLA accrued by paying them inter-
est on the COLA amount computed in accordance with
Board policy.
Lastly, I shall recommend that Respondent offer Mary
Louise Witmer immediate and full reinstatement to her
former or substantially equivalent position, without prejudice
to her seniority or other rights and privileges, discharging if
necessary any replacement. Respondent also shall make
Witmer whole for any loss of earnings she may have suf-
fered by reason of her unlawful discharge by paying to her
a sum of money equal to the amount she would have earned
as wages from August 17, 1987, to the date Respondent of-
fers full reinstatement, less net earnings acquired by her dur-
ing this period. The amount of backpay shall be computed
in the manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950), plus interest as computed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). The Respondent shall
be ordered to expunge from its records any reference to
Witmer’s unlawful discharge, give her written notice of such
expungement, and advise her that its unlawful conduct will
in no way be used for further personnel actions against her.
On these findings of fact and conclusions of law and on
the entire record, and I issue the following recommended37
ORDER
The Respondent, Mohawk Liqueur Company, Novi, Michi-
gan, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Refusing to bargain in good faith with the General In-
dustrial Employees Union Local 42, Distillery, Rectifying,
Wine and Allied Workers’ International Union, AFL–CIO, as
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
38 If this Order is enforced by a judgment of a United States court of ap-
peals, the words in the notice reading ‘‘Posted by Order of the National 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.’’
the exclusive bargaining agent of its employees in the appro-
priate unit described in paragraph (b) below, failing to pay
a cost-of-living allowance as provided in the parties’ collec-
tive-bargaining agreement; insisting to impasse that the
Union bargain about or agree to forgo an accrued COLA;
and unilaterally implementing the terms and conditions of a
final offer without bargaining to a lawful impasse.
(b) The appropriate bargaining unit is:
All full-time and regular part-time employees employed
by Respondent at its facility located at 42700 Mohawk
Drive, Novi, Michigan, but excluding Teamsters, sales-
men, professional employees, office clerical employees,
managerial employees, guards and supervisors as de-
fined in the Act.
(c) Discharging employees because they engaged in pro-
tected concerted strike activities.
(d) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of rights guaran-
teed them by 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make whole employees who were members of the ap-
propriate bargaining unit for any loss they may have suffered
by Respondent’s delay in paying the COLA due on June 4,
1987, by paying interest to them computed in accordance
with Board policy.
(b) Offer Mary Louise Witmer immediate and full rein-
statement to her former or substantially equivalent position,
without prejudice to her seniority or other rights and privi-
leges previously enjoyed, and make her whole for all earn-
ings lost by reason of her unlawful discharge, as set forth in
the remedy section of this decision. Delete from its files any
reference to her discharge, notify her in writing that this has
been done, and that the discharge will not be used against
her in future personnel actions.
(c) Preserve and, on request, make available to the Board
or its agents, for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due to Witmer and the amount
of interest on the COLA payments due to members of the
bargaining unit.
(d) Post at its Novi, Michigan place of business copies of
the attached notice marked ‘‘Appendix.’’38 Copies of the no-
tice, on forms provided by the Regional Director for Region
7, after being signed by the Respondent’s authorized rep-
resentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.