Paul Mueller Co.

National Labor Relations Board - Board Decisions

Sep 25, 2000

332 N.L.R.B. 312 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
Paul Mueller Company and Sheet Metal Workers
International Association, Local No. 208. Cases
17–CA–17623, 17–CA–17715, 17–CA–17898, 17–
CA–17988, 17–CA–18153, 17–CA–18397, 17–
CA–18465, 17–CA–18493, and 17–CA–18688
September 25, 2000
DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On May 21, 1997, Administrative Law Judge Marion
C. Ladwig issued the attached decision. The General
Counsel and the Charging Party each filed exceptions
and a supporting brief. The Respondent filed exceptions,
and the Charging Party filed an answering brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three member panel.
The Board has considered the judge’s decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings, and conclu-
sions only to the extent consistent with this Decision and
Order.
1. The Respondent excepts to the judge’s finding that
it unlawfully delayed reinstatement for 89 unfair labor
practice strikers who made an unconditional offer to re-
turn on May 22, 1996. On July 25, 1997, the Respondent
also filed an alternative motion to reopen record to take
additional evidence on this issue. The Respondent as-
serts that the General Counsel had stipulated during the
hearing that the complaint made no allegation as to the
timeliness of the strikers’ reinstatement. In the event that
its exception to the judge’s finding is not sustained, the
Respondent requests that the hearing record be reopened
so that it can explain the circumstances as to the delay in
reinstating the strikers.
On July 30, 1997, the General Counsel filed an agree-
ment to reopen the record. The General Counsel stated
that, in light of the Respondent’s apparent good-faith
belief that the issue of the timely return of strikers would
not be litigated, he would accede to the record being re-
opened on this issue. Based on the General Counsel’s
agreement, we will grant the Respondent’s motion, sever
the timely reinstatement issue in Case 17–CA–18688,
and remand this issue for further appropriate proceedings
before the judge.
2. The judge recommended dismissal of the allegation
that Plant Superintendent McGuire violated Section
8(a)(1) of the Act by threatening two former strikers with
closer supervision because of their union activities. We
find merit in the General Counsel’s exceptions on this
issue.
On May 22, 1996, the Respondent accepted an offer
from the Union’s president-business manager, Hulse, for
about 100 strikers to return to work. Hulse himself was
among those in the returning striker group. The Union
had authorized these employees to return while it contin-
ued the strike with other employees. The Respondent
reinstated Hulse and Roger Humphrey, among others, on
May 31, 1996.
On that same day, Plant Superintendent McGuire
summoned Hulse to his office and told him that if the
efficiency rating for Hulse’s department declined from its
current high level, he would look around to see “if the
returning strikers [were not] pulling a slowdown or gold-
bricking.” Later that same day, McGuire also told Hum-
phrey that his department had a high efficiency rating
and that “they didn’t want [him] to come in there and
disrupt the department . . . [and] to keep up the work and
not pull a slowdown.” Immediately after this meeting,
Supervisor McKenna told Humphrey that they were “go-
ing to keep an eye on [him] and make sure [that] I didn’t
slow down and disrupt the department.”
The judge found McGuire’s (and, implicitly,
McKenna’s) statements to be lawful as “a reasonable,
understandable precaution against the disruption of pro-
duction since most of the strikers were returning, but the
strike was still continuing.” We disagree.
The Board has long held that employer threats of
closer supervision because of union activity violate Sec-
tion 8(a)(1) of the Act. Wellstream Corp., 313 NLRB
698, 704 (1994); Jennie-O Foods, 301 NLRB 305, 310
(1991); and Olympic Limousine Service, 278 NLRB 932,
936 (1986). Contrary to the judge, the strikers’ exercise
of their lawful right to strike did not justify singling them
out for closer supervision on their return to work,
whether or not a strike continues. There must be some
reasonable objective basis for fearing that the returning
strikers would not perform their jobs as they had in the
past or would attempt to disrupt the productivity of co-
workers. No such evidence exists in this case.1
Moreover, not only did management officials McGuire
and McKenna single out two returning strikers to warn
them that they would be closely supervised, but the offi-
cials strongly implied that they would be held responsi-
ble if departmental productivity declined, regardless of
whether the former strikers engaged in unprotected con-
duct that fostered or contributed to that decline. See,
e.g., Armour-Dial, Inc., 245 NLRB 959 (1979) (unlawful
to single out union committeemen for discipline beyond
the scope of their individual misconduct).

1 Lacking any evidence, our dissenting colleague and the judge
would permit an employer to presume that returning strikers are more
likely than their coworkers to impair productivity. We find no warrant
in the Act for this discriminatory presumption.
332 NLRB No. 29
PAUL MUELLER CO. 313
The statements by McGuire and McKenna must also
be considered in the context of other unlawful actions
against returning strikers in the same time period. In
fact, 2 weeks after McGuire’s conversation with Hulse,
he discriminated against Hulse by issuing a written warn-
ing because Hulse was keeping a log of his jobs. The
logging of jobs was a common employee practice that
Hulse himself had followed since 1992. We think that it
is not purely coincidental that McGuire sought to inter-
dict the maintenance of a job log that could have pro-
vided a returning striker some defense against manage-
ment claims that he was engaged in a work slowdown.
In addition, other returning strikers were subjected to
discrimination by the Respondent’s failure to reinstate
them to their former jobs or by its assignment of more
onerous work to them.2
Based on the foregoing, we find that the statements
about closer surveillance would reasonably tend to re-
strain or coerce employees from engaging in or support-
ing protected union activities. These statements were
therefore threats in violation of Section 8(a)(1) of the
Act.
3. The judge found that in July 1995 the Respondent
unilaterally transferred the bargaining unit work of as-
sembling several stainless steel tanks (used for wine pro-
duction) to another plant, without bargaining with the
Union. In finding this action to be a violation of Section
8(a)(5) and (1) of the Act, the judge rejected the Respon-
dent’s reliance on a management-rights provision in the
parties’ expired collective-bargaining agreement. He
found that the provision did not provide the required
clear and unmistakable waiver of the Union’s right to
bargain about this subject.
In exceptions, the Respondent contests the judge’s
interpretation of the management-rights provision.3 We
find no need to address this issue. It is well established
that “the waiver of a union’s right to bargain does not
outlive the contract that contains it, absent some evi-
dence of the parties’ intention to the contrary.” Ironton
Publications, 321 NLRB 1048 (1996). A management-
rights clause constitutes such a waiver and, as such, is
ordinarily limited to the duration of the collective-
bargaining agreement. Blue Circle Cement Co., 319
NLRB 954 (1995); U.S. Can Co., 305 NLRB 1127
(1992), enfd. 984 F.2d 864 (7th Cir. 1993); Control Ser-
vices, 303 NLRB 481, 483–485 (1991), enfd. 961 F.2d
1568, 975 F.2d 1551 (3d Cir. 1992); and Holiday Inn of

2 The Respondent did not except to the judge’s findings that it com-
mitted these unfair labor practices against Hulse and the other returning
strikers.
3 The Respondent does not contest the judge’s finding that the work
transfer involved a mandatory bargaining subject.
Victorville, 284 NLRB 916 (1987). We therefore find
that the Respondent cannot rely on the management-
rights provision here to justify its unilateral action after
the expiration of the contract containing that provision.
For this reason, we adopt the judge’s conclusion that the
Respondent violated Section 8(a)(5) and (1) of the Act.4
ORDER
The National Labor Relations Board orders that the
Respondent, Paul Mueller Company, Springfield, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Unilaterally transferring bargaining unit work
without giving the Union advance notice and an opportu-
nity to bargain about the transfer decision and its effects.
(b) Unilaterally paying new employees start wages
rates that are higher than those offered in negotiations
with the Union.
(c) Unilaterally adopting the Med-Pay Plus, PBA, or
other delivery system in its health insurance plan.
(d) Unilaterally limiting increased retirement benefits
to retirement plan participants on the current payroll.
(e) Unilaterally giving a retroactive wage increase to
reward nonstriking employees.
(f) Threatening any unfair labor practice striker with
permanent replacement if he does not abandon a strike.
(g) Promising to promote any employee for abandon-
ing a strike.
(h) Threatening closer supervision of employees be-
cause they engaged in protected union and strike activi-
ties.
(i) Discriminating against any employee for being a
union official in the plant.
(j) Failing to return unfair labor practice strikers to
their former jobs after their unconditional request.
(k) Issuing onerous work assignments to returning
strikers for engaging in a strike.
(l) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning wages and other terms and condi-
tions of employment and, if an understanding is reached,
embody the understanding in a signed agreement:

All full-time and regular part-time craftsmen, fabrica-
tors, and production workers employed by Paul Muel-
4 Member Hurtgen would find the violation because the Respon-
dent’s conduct was not shown to be consistent with past practice.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
ler Company at its Springfield, Missouri facility, ex-
cluding all executives, managers, professional employ-
ees, technical employees, office employees, clerical
employees, administrative employees, guards, and su-
pervisors as defined in the Act and employees em-
ployed in the machine shop, maintenance areas, and
other machinist work areas.

(b) Restore the assembly of wine tanks to the bargain-
ing unit employees in the Springfield plant.
(c) Raise the start wage rate for all production workers
to $7.85 an hour, retroactive to May 1, 1995, and grant
the production workers backpay, with interest.
(d) On request of the Union, restore the health care de-
livery system in existence for bargaining unit employees
prior to implementation of the Med-Pay Plus and PBA
delivery system and make unit employees whole for any
losses they may have suffered as a result of the plan
change, as provided in Kraft Plumbing & Heating, 252
NLRB 891 (1980), enfd. mem. 661 940 (9th Cir. 1981).
Reimbursement shall be made with interest computed in
the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987).
(e) Rescind the amendment to the retirement plan that
limited the increased benefits to retirement plan partici-
pants on the current payroll.
(f) On request, return Steward Gerald Clevenger and
employees Eugene Crain, Timothy Daniels, and Luong
Nguyen to their former positions before the strike.
(g) Within 14 days from the date of this Order, remove
from its files any reference to the unlawful written warn-
ings given President-Business Manager James Hulse and
Secretary-Treasurer Gary Horned, and within 3 days
thereafter notify them in writing that this had been done
and that the warnings will not be used against them in
any way.
(h) Preserve and, within 14 days of a request, make
available to the Board or its agents for examination and
copying, all payroll records, social security payment re-
cords, timecards, personnel records and reports, and all
other records necessary to analyze the amount of back-
pay due under the terms of this Order.
(i) Within 14 days after service by the Region, post at
its facility in Springfield, Missouri, copies of the attached
notice marked “Appendix.”5 Copies of the notice, on
forms provided by the Regional Director for Region 17,
after being signed by the Respondent’s authorized repre-

5 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
sentative, shall be posted by the Respondent and main-
tained for 60 consecutive days in conspicuous places
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Re-
spondent has gone out of business or closed the facility
involved in these proceedings, the Respondent shall du-
plicate and mail, at its own expense, a copy of the notice
to all current employees and former employees employed
by the Respondent at any time since October 20, 1994.
(j) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has take to com-
ply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act not
specifically found.
IT IS FURTHER ORDERED that the issue in Case
17–CA–18688 pertaining to the Respondent’s alleged
failure to timely reinstate 89 strikers who made an un-
conditional offer to return to work on May 22, 1996, is
remanded to the judge for reopening of the record and for
further proceedings consistent with this Decision and
Order.
IT IS FURTHER ORDERED that the judge shall pre-
pare and serve on the parties a supplemental decision
containing credibility resolutions, findings of fact, con-
clusions of law, and recommendations to the Board.
Following service of the supplemental decision on the
parties, the provisions of Section 102.46 of the Board’s
Rules and Regulations shall apply.

MEMBER HURTGEN, dissenting in part.
Contrary to my colleagues, I do not find merit to the
allegation that the Respondent violated Section 8(a)(1)
by unlawfully threatening two strikers who returned to
work during an ongoing labor dispute with closer super-
vision. Rather, I find that the challenged statements to
these strikers were, as found by the judge, “reasonable
understandable precaution[s] against the returning strik-
ers disrupting production in support of the remaining
strikers.”
In late May 1996, striking employees James Hulse
(also the Union’s president-business manager) and Roger
Humphrey returned to work, some 10 months after more
than 200 unit employees went on strike against the Re-
spondent. At the time of their return, more than 40 em-
ployees remained out on strike. Upon their return, Plant
Superintendent McGuire informed Hulse that Hulse’s
department had achieved an efficiency operating rating
PAUL MUELLER CO. 315
of 120 percent and that, if that rating did not continue, he
would look to see “if the returning strikers [were not]
pulling a slowdown or goldbricking.” McGuire similarly
informed Humphrey that Humphrey’s department’s rat-
ing was at 117 percent and that “they didn’t want me to
come [back] in there and disrupt the department . . . to
keep up the work and not pull a slowdown.” Subse-
quently, Supervisor McKenna told Humphrey that they
were “going to keep an eye on me and make sure [that] I
didn’t slow down and disrupt the department.”
In affirming the judge, I note that Hulse and Hum-
phrey had returned to work after a prolonged strike, dur-
ing which the Respondent had continued its operations,
and after which many employees remained out on strike.
The Respondent was simply telling Hulse that if effi-
ciency fell, the Respondent would investigate to see if
the returning strikers were responsible.1 Similarly, the
Respondent warned Humphrey that it did not want him
to engage in a slowdown or other disruptions. I agree
with the judge that the above-cited statements were rea-
sonable, indeed prudent, cautionary statements that did
not violate the Act. Further, unlike the cases on which
my colleagues rely, the Respondent’s statements were
directed toward the maintenance of its production levels
in the midst of an ongoing strike. In my view, such
statements would not reasonably tend to restrain or co-
erce those employees from engaging in or supporting
lawful union activities.
Nor do I agree with my colleagues that the supervi-
sor’s statements “strongly implied that [the two employ-
ees] would be held responsible if departmental produc-
tivity declined.” (Emphasis in original.) On the con-
trary, when informing Humphrey that they were “going
to keep an eye on me and make sure [that] I didn’t slow
down and disrupt the department [emphasis added],”
Supervisor McKenna was clearly addressing his individ-
ual conduct. Cf. Armour-Dial, Inc., 245 NLRB 959, 960
(1979).2
Accordingly, I would dismiss this 8(a)(1) allegation.

1 Contrary to my colleagues’ assertion, I have not made any pre-
sumptions regarding the conduct of employees who returned to work
during the ongoing labor dispute. Nor is such a presumption to be
drawn from the Respondent’s statements. The Respondent was simply
telling the returning employees that if production fell, the Respondent
would investigate to determine whether they were responsible.
2 Unlike my colleagues, I would not bootstrap subsequent Respon-
dent conduct in order to find unlawful these statements to Hulse and
Humphrey. More particularly, my colleagues speculate that the Re-
spondent intended to interdict log keeping in order to deprive employ-
ees of a defense against a claim of work slowdown. There is nothing to
support this speculation, and the envisaged scenario never occurred.
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 vio-
lated the National Labor Relations Act and has ordered us to
post and abide by this notice.

WE WILL NOT unilaterally transfer bargaining unit
work without giving the Sheet Metal Workers Interna-
tional Association, Local No. 208 advance notice and an
opportunity to bargain about the transfer decision and its
effects.
WE WILL NOT unilaterally pay new employees start
wage rates that are higher than those offered in negotia-
tions with the Union.
WE WILL NOT unilaterally adopt the Med-Pay Plus,
PBA, or other delivery system in our health insurance
plan.
WE WILL NOT unilaterally limit increased retirement
benefits to retirement plan participants on the current
payroll.
WE WILL NOT give a retroactive wage increase to
reward nonstriking employees.
WE WILL NOT threaten any unfair labor practice
striker with permanent replacement if he does not aban-
don a strike.
WE WILL NOT promise to promote any employee for
abandoning a strike.
WE WILL NOT threaten closer supervision of em-
ployees because they engaged in protected union and
strike activities.
WE WILL NOT discriminate against any employee for
being a union official in the plant.
WE WILL NOT fail to return unfair labor practice
strikers to their former jobs after their unconditional re-
quest.
WE WILL NOT issue onerous work assignments to re-
turning strikers for engaging in a strike.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL restore the assembly of wine tanks to our
bargaining unit employees in the Springfield plant.
WE WILL, on request, bargain with the Union and put
in writing and sign any agreement reached on wages and
conditions of employment for our employees in the bar-
gaining unit:

All full-time and regular part-time craftsmen, fabrica-
tors, and production workers employed by us at our
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 316
Springfield, Missouri facility, excluding all executives,
managers, professional employees, technical employ-
ees, office employees, clerical employees, administra-
tive employees, guards, and supervisors as defined in
the Act and employees employed in the machine shop,
maintenance areas, and other machinist work areas.

WE WILL raise the start wage rate for all production
workers to $7.85 an hour, retroactive to May 1, 1995,
and grant the production workers backpay, with interest.
WE WILL, on request of the Union, restore the health
care delivery system in existence for bargaining unit em-
ployees before we implemented the Med-Pay Plus and
PBA delivery system.
WE WILL make whole any bargaining unit employ-
ees who may have suffered any loss as a result of our
unilateral change in health plans, with interest.
WE WILL rescind the amendment to the retirement
plan that limited the increased benefits to retirement plan
participants on the current payroll.
WE WILL, on request, return Steward Gerald
Clevenger and employees Eugene Crain, Timothy
Daniels, and Luong Nguyen, to their former positions
before the strike.
WE WILL, within 14 days from the date of this Order,
remove from our files any reference to the unlawful writ-
ten warnings given President-Business Manager James
Hulse and Secretary-Treasurer Gary Horned, and WE
WILL, within 3 days thereafter notify them in writing
that this had been done and that the warnings will not be
used against them in any way.

PAUL MUELLER COMPANY

Richard C. Auslander and Francis A. Molenda, Esqs., for the
General Counsel.
Stanley E. Craven, Esq., of Kansas City, Missouri, for the Re-
spondent.
Patrick J. Riley, Esq., of Washington, D.C., for the Union.
DECISION
STATEMENT OF THE CASE
MARION C. LADWIG, Administrative Law Judge. These
consolidated cases were tried in Springfield, Missouri, on Au-
gust 19–21, 1996. The charges and amended charges were filed
from September 23, 1994, through August 14, 1996, and the
sixth consolidated complaint was issued August 14, 1996.
After an impasse in negotiations and implementation of its
last offer on September 19, 1994, the Company unilaterally
made additional changes in conditions of employment and
transferred bargaining unit work to its nonunion Iowa plant
without bargaining with the Union. During the strike that fol-
lowed, the Company continued to determine unilaterally the
employees’ wages and working conditions as if the Union no
longer existed in the plant.
The primary issues are whether the July 25, 1995 strike was
an unfair labor practice strike and whether the Company, the
Respondent, further violated Section 8(a)(1), (3), and (5) of the
National Labor Relations Act.
FINDINGS OF FACT
I. JURISDICTION
The Company, a corporation, manufactures stainless steel
tanks at its facility in Springfield, Missouri, where it annually
ships goods valued over $50,000 directly outside the State. The
Company admits and I find that it is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of
the Act and that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Impasse and Implementation of Last Offer
On May 19, 1994, the Company and Union began bargaining
for a new agreement at the Springfield, Missouri plant to suc-
ceed their 3-year collective-bargaining agreement expiring June
11, 1994 (Tr. 19, 117; GC Exh. 2). In the negotiations that fol-
lowed, the Company sought changes in its self-insured health
insurance program to contain the increasing costs. The only
such changes discussed in the negotiations were the Company’s
proposal to increase the annual deductible and to increase the
employees’ copayment. (Tr. 20, 64–65, 70, 117, 530.)
The 1991–1994 agreement provided in article 16, “Hospi-
talization and Insurance Program,” that “The program will pro-
vide a range of benefits equivalent to the existing program and
will continue to be funded by company contributions on behalf
of employees.” Speaking for the Company, Personnel Director
Michael Young said that the Company had experienced some
$3 million in claims experience in the previous 3 years. He
emphasized that all company employees, including officials
and the employees in the Company’s nonunion Osceola, Iowa
plant, had the same coverage and that whatever was decided at
the bargaining table would be implemented companywide. (Tr.
65–66, 117.)
International Organizer Michael Krasovec took the position
that the Union represented only 44 percent of the employees
and that he needed and was requesting the names of all the
participants (including dependents) in the health insurance plan,
together with the dollar amounts of their claims for each of the
past 3 years (Tr. 21–22, 66–67, 115–116).
Young stated his willingness to provide this information, but
insisted that the Union pay for it (Tr. 67). He stated in his July
27, 1994 letter to Krasovec, in part (GC Exh. 4):

We have no objection whatsoever to arranging for the
information to be obtained and provided to you. However,
the company does not wish to expend its time, money and
resources compiling this information, especially since we
have advised you in negotiations that the information,
when completed, is not going to cause us to change our
PAUL MUELLER CO. 317
position that all Mueller employees should be covered
equally by the same health insurance plan.
Our best estimate as to the actual cost of producing the
information you have requested is in the range of $3000–
$4000, and we have proposed that you should agree to pay
that amount before the Company undertakes the project.

Krasovec took the position that for the Company “to ask us
to consider taking a cut in something and then also ask us to
pay for the information to prove that they needed to cut, in my
opinion, was ludicrous.” He refused to pay for the information.
(Tr. 68, 119–121, 451–452.)
On September 19, 1994, after the Union rejected the Com-
pany’s proposal, Young wrote Krasovec a letter, declaring a
bargaining impasse and announcing implementation of its final
offer (Tr. 64, 466; R. Exh. 11). The General Counsel and Union
dispute a valid impasse because of the Company’s refusal to
provide the requested information.
On October 31, 1994, Krasovec agreed to pay for the infor-
mation. Young then checked with the third-party administrator
of the Company’s self-insured plan to determine the actual cost
of providing the information. Alan Lemley, president of Benefit
Consultants, Inc., testified that in Young’s initial call to him
about providing the information, he gave Young an estimate of
$1500. Lemley sent Young a fax, stating that “Per our conver-
sation, we would charge our regular hourly time charges not to
exceed $1500.” (Tr. 69–71, 120–122, 531; GC Exh. 5.)
After Lemley prepared the information, Young changed his
position and refused to provide the names of the nonunit par-
ticipants because of a privacy issue. Young agreed, however, to
“provide access to all of our data to a union attorney or union
certified accountant operating under a confidentiality agree-
ment” for an audit to verify the claim payments. (Tr. 27–28,
71–75, 122–123, 128–133, 454–450, 533–534; GC Exhs. 6, 7;
R. Exhs. 6, 9.)
Because of the Union’s refusal, before the declared Septem-
ber 19 impasse, to pay any part of the cost of the claims pay-
ment history, I find that the Company’s refusal to provide the
information before that date did not preclude a valid impasse.
Regarding the Company’s change of position after the Union
agreed to pay the $1500 cost of compiling the information, I
find that the Company’s offer to permit an audit by a union
attorney or certified accountant would provide the necessary
verification that the claim payments were actually made, with-
out infringing on the privacy of the nonunit participants.
Accordingly I find that the Company did not commit the al-
leged violation of Section 8(a)(5) and (1) of the Act by refusing
to furnish the Union with a listing of all company employees
and their dependents and the individual costs for the Com-
pany’s providing health care for each employee and dependent
for each of the past 3 years.
I find that there was a valid impasse in bargaining on Sep-
tember 19, 1994.
B. Unfair Labor Practice Strike
1. Bargaining obligation after impasse
It is well established that the fact of an impasse enables the
employer to make unilateral changes in working conditions that
are “not substantially different or greater than any which the
employer . . . proposed during the negotiations.” Atlas Tack
Corp., 226 NLRB 222, 227 (1976), enfd. 559 F.2d 1201 (1st
Cir. 1997). As recently held in Grondorf, Field, Black & Co. v.
NLRB, 107 F.3d 882, 886 (D.C. Cir. 1997), “When impasse
occurs, an employer may implement only those changes rea-
sonably falling within its pre-impasse proposal.”
It is also well established that when an impasse in bargaining
is reached, the duty to bargain is not terminated, but only sus-
pended. The Supreme Court observed in Charles D. Bonanno
Linen Service v. NLRB, 454 U.S. 404, 412 (1982):

As a recurring feature in the bargaining process, impasse is
only a temporary deadlock or hiatus in negotiations “which in
almost all cases is eventually broken, through either a change
of mind or the application of economic force.” . . . Further-
more, an impasse may be “brought about intentionally by one
or both parties as a device to further, rather than destroy, the
bargaining process.” . . . Hence, “there is little warrant for re-
garding an impasse as a rupture of the bargaining relation
which leaves the parties free to go their own ways.”

The impasse doctrine is not a device to allow any party to
continue to act unilaterally and to ignore the collective-
bargaining process in determining the conditions of employ-
ment. Yet here, the Company was doing both.
2. Making unilateral changes after impasse
After declaring an impasse on September 19, 1994, the
Company first made a unilateral change—not proposed in ne-
gotiations—in the retirement plan on October 20, 1994, as
found below. Next, the Company refused the Union’s Novem-
ber 18 request (GC Exh. 6) for “immediate resumption of nego-
tiations.” Young responded on November 22 (GC Exh. 7):

In response to your letter of November 18, 1994, there
appears to be no reason to meet for further negotiations.
You have our final offer. Unless and until we have some
indication that the Union is ready to accept the offer in all
substantial respects, further negotiations would be a waste
of time. [Emphasis added.]

The first negotiating session after the September 19, 1994
impasse was held 5 months later on February 15, 1995. By this
time the Regional Director on December 30, 1994, had issued
the first refusal-to-bargain complaint (GC Exh. 1E) and Per-
sonnel Director Young had given International Organizer
Krasovec a letter on February 2, 1995 (GC Exh. 8), stating

We have arranged for the following benefit improve-
ments to the Group Medical Insurance Program covering
all Paul Mueller employees: [listing five improvements].
We assume you will have no objections to these im-
provements which we intend to implement and announce
to employees as soon as the arrangements are finalized.
Let me know if you do object to any of these im-
provements by Monday, February 6, 1995.

On February 3, 1995, Krasovec hand-delivered to Young a
critical letter (GC Exh. 9), protesting the unilateral action and
stating: “I feel if you had shown a little more generosity like
this when we were at the table, instead of your take it or leave
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 318
it, ‘screw you we’ll do whatever we want’ attitude, we may just
have a new contract by now.”
In the February 15 session, as indicated in the Company’s
notes of the meeting (GC Exh. 45, p. 1), Young acknowledged
that the “NLRB has issued a complaint,” but added that “noth-
ing is illegal until a court so decides. We may not have that
answered for 2–3 years.” The notes also attribute to Young the
following statements:

Company felt it would be a good idea to meet since it’s
been quite some time since our last meeting.
We are not here to draw a line between us—but we are
here to listen to you and try and reach an agreement.
Please understand our last offer is still open for your ac-
ceptance. [Emphasis added.]

The notes indicate (p. 2) that Young referred to his February
2 letter “regarding some group insurance benefit improvements
we plan to make” and to Krasovec’s February 3 letter objecting
to the changes. Young asked, “Can we discuss it?” and “are you
willing to negotiate?” Krasovec answered, “I’ll discuss the
changes with you. I have objections to any unilateral changes
until we reach an agreement or are declared at impasse.”
The notes further indicate that they began discussing the five
offered improvements and that Young stated “we plan to im-
plement them effective March 22 unless the Union could agree
to bypass the 30-day provision in our implemented offer.” He
stated that “This is a good example of the advantage in retain-
ing flexibility to change the plan” (discussed below).
Thus, Young offered to negotiate, giving the Union another
chance to accept the Company’s last offer, and discussed the
offered benefit improvements. Young made no mention, how-
ever, of the Company’s decision to announce 2 days later, at
employee meetings in the plant, a different delivery system for
providing the group health benefits (Tr. 78–79, 584). Young
admits that none of the five improvements related to the new
delivery system (Tr. 514).
This delivery system consisted of a preferred provider or-
ganization, Med-Pay Plus, for physician and hospital benefits
and Pharmacy Business Associates, the PBA managed prescrip-
tion drug plan, for prescriptions (GC Exhs. 11, 12). Completely
ignoring the Union as the bargaining representative of the unit
employees, the Company unilaterally instituted these two plans
without discussing them with the Union (Tr. 78–79, 584).
Meanwhile, as discussed below, the Company made other
unilateral changes without affording the Union an opportunity
to bargain.
3. Unilateral changes before the strike
a. Amendment to retirement plan
In the pre-impasse negotiations, the Company offered to in-
crease the accrued retirement benefits and Personnel Director
Young stated that the proposal covered all participants in the
retirement plan. On October 20, 1994 (a month after the Com-
pany implemented its proposal), however, the Company unilat-
erally amended the retirement plan to limit the increased bene-
fits to retirement plan participants on the current payroll.
The expired 1991–1994 agreement had provided, in article
15 (GC Exh. 2, p. 10), graduated monthly retirement benefits of
$12 for years of credited service before 1981, $14 until 1984,
and $20 after 1984.
The Company’s August 10, 1994 “modified last and final of-
fer” (GC Exh. 3 p. 1) stated “we have agreed to make the fol-
lowing modifications [to our initial final offer],” including:

(2) Retirement benefits increased to $21 per year for
all [emphasis in original] years of credited service up to 35
years maximum (Page 23).
. . . .
A copy of the proposed new contract [emphasis
added] is attached.

The attached “proposed new contract” provided (GC Exh. 3 p.
23):

The accrued pension formula shall be twenty-one dol-
lars ($21) times an employee’s years of credited service,
provided that no more than 35 years of credited service
shall be used. [Emphasis added.]

Neither wording of the proposal restricted the coverage to cur-
rent employees.
When this provision was discussed in the pre-impasse nego-
tiations on August 9, 1994, as International Organizer Krasovec
credibly testified, he asked Personnel Director Young: “Does it
cover everybody in the plan?” Young answered, “Yes, it does.”
(Tr. 79–80.)
Krasovec specifically remembered his question because ear-
lier in a union caucus a member of the union negotiating com-
mittee, Al Crossland, had asked, “Does this include me?”
Crossland, having accrued retirement benefits as a company
employee before becoming a business agent (Tr. 470), was still
a participant in the plan. The specific point of Krasovec’s ques-
tion to Young, “Does it cover everybody in the plan?” was to
determine whether the provision covered all participants. (Tr.
80–83.) By his demeanor on the stand, Krasovec impressed me
most favorably as a truthful witness, with a good memory of
what happened.
Upon claiming in an answer on cross-examination that
Krasovec was asking about “current” employees, Young added
in the same answer: “Mr. Crossland, when the name came up
was not a current employee.” (Tr. 506.) Thus, although Young
claimed that Krasovec was asking only about current employ-
ees, his testimony reveals his knowledge that Krasovec was
asking the question specifically in reference to Crossland’s
retirement benefits. By his demeanor on the stand, Young ap-
peared to be less than candid.
The Company’s notes of the August 9, 1994 bargaining ses-
sion (Tr. 521) do not indicate that Krasovec asked only about
“current” employees being covered, rather than all current (not
retired) participants in the plan. The notes (which are not con-
tended to be verbatim) instead indicate that Krasovec asked:
“Under the retirement program, that $21 proposal covered all
[company] employees currently entitled to that plan [emphasis
added].”
Having credited Krasovec’s testimony that he asked if the
Company’s offer covered “everybody in the plan” and Young
answered, “Yes, it does,” I find that it was clear to both Young
and Krasovec at the time that Young was confirming that all
PAUL MUELLER CO. 319
plan participants were covered, whether or not on the current
payroll.
Evidently being unwilling to adhere to the wording of the
Company’s own “proposed new contract,” the Company on
October 20, 1994, unilaterally—without notice to the Union—
adopted amendment no. 1, which specifically limited the cover-
age of the increased retirement benefits to current and future
employees. The amendment provided (GC Exh. 46, p. 2) that

(a) If a Participant was an Active Participant on Sep-
tember 19, 1994 [emphasis added], or first became an Ac-
tive Participant after that date, his monthly Accrued Bene-
fit as of any date will be an amount equal to $21.00 multi-
plied by his Accrued Service (not to exceed 35 years) on
such date.
(b) If a Participant was not an Active Participant on
September 19, 1994 [he would be entitled to the previous
graduated $12, $14, and $20 accrued benefits].

On February 16, 1995, Krasovec requested an update on the
operation of the retirement plan (GC Exh. 13). Upon receiving
a copy of amendment no. 1, he complained to Young (Tr. 82–
83):

I pointed out the Board of Trustees had adopted something
different than what was in their last and final offer to the Un-
ion, that [the amendment] still contained the graduated pen-
sion benefits, and that’s not what we were told at the bargain-
ing table, and that’s not what I presented to those people in the
meeting when it was asked at a union meeting.

Although the October 20, 1994 minutes of the board of trus-
tees (GC Exh. 46) show that Young was present at the meeting
in which amendment no. 1 was adopted, it is undenied (as
Krasovec credibly testified) that Young first “told me he didn’t
have any idea” what the amendment was. After Krasovec then
pointed out that the graduated benefits were still in the plan the
trustees adopted, Young’s response was: “We did it.” (Tr. 82–
83.)
I find that the Company’s unilateral amendment to the re-
tirement plan on October 20, 1994 was “substantially different”
from the Company’s pre-impasse proposal.
I therefore find that the Company’s adoption of the unilateral
change in the retirement plan after the impasse violated Section
8(a)(5) and (1) of the Act.
b. Change in health care plan providers
The Company admits in its answer (GC Exh. 1HHH) the al-
legation in the complaint (GC Exh. 1FFF ¶ 9d) that about Feb-
ruary 17, 1995, it failed to continue in effect the preexisting
conditions of employment “by announcing and instituting new
. . . conditions of employment . . . including changes in the
health insurance plan, instituting a preferred provider organiza-
tion called Med-Pay Plus, and changing to a new prescription
drug cover plan called Pharmacy Business Associates.”
Although this unilateral action is not defended in its brief,
the Company evidently would contend that it lawfully reserved
the right to make such changes by including the following pro-
vision in its pre-impasse proposal, in article 16, “Group Medi-
cal and Life Insurance Program” (GC Exh. 3 p. 23), imple-
mented on September 19, 1994 (R. Exh. 11):

Major benefit changes will be discussed with the Un-
ion at least thirty (30) calendar days prior to becoming ef-
fective.

Under this provision the Company on December 19, 1994,
had raised, effective January 1, 1995, the health-insurance de-
ductible from $100 to $200 and the copayment from 10 percent
of the first $1000, to 20 percent of the first $2500. This in-
creased the employees’ annual out-of-pocket limit from $200 to
$700. (Tr. 467; R. Exh. 12.)
As discussed above, the Company’s notes of the February
15, 1995 negotiating session indicate that Young was relying
on this “Major benefit changes” provision in the implemented
pre-impasse proposal when discussing the five benefit im-
provements he announced in his February 2, 1995 letter to
Krasovec. He stated that the Company planned to implement
the improvements plan on March 22 “unless the Union could
agree to bypass the 30-day provision in our implemented offer”
and that “This is a good example of the advantage in retaining
flexibility to change the plan” (GC Exh. 45, p. 2).
Although both the January 1, 1995 benefit changes increas-
ing the deductible and copayment and the five benefit im-
provements would be included in the description, “Major bene-
fit changes,” I find that instituting an “entirely new delivery
system,” as held in Loral Defense Systems-Akron, 320 NLRB
755, 756 (1996), was not “reasonably comprehended” in the
implemented proposal, reserving the Company’s discretion to
make changes in benefits.
As found, the only health plan changes discussed in the pre-
impasse negotiations were the Company’s proposal to increase
the annual deductible and to increase the employees’ copay-
ment. There was no indication that the Company intended by its
proposal to reserve the discretion not only to make benefit
changes in its self-insured group health plan, but also to change
plan providers.
Moreover, even if Company had retained the discretion to
change plan providers after discussion with the Union at least
30 days before, it failed even to discuss the new delivery sys-
tem with the Union before implementing the change (Tr. 78–
79, 584).
As found, Young on February 15, 1995, made no mention of
the Company’s decision to announce the Med-Pay Plus pre-
ferred provider plan (with a Med-Pay Plus Network Physician
List of 460 physicians, GC Exh. 11) and the PBA managed
prescription drug plan (GC Exh. 12) in employee meetings 2
days later on February 17 (GC Exh. 10).
The only possible reference in the Company’s notes of the
February 15 session (GC Exh. 45, p. 2) to the February 17 em-
ployee meetings would be the following question by Krasovec
and answer by Young (appearing in the notes after their discus-
sion of the five benefit improvements offered by the Company
in Young’s February 2 letter to Krasovec):

I understand there is somebody coming from Principal
to discuss these insurance changes. I want to be present.
As their official union representative, I’m asking for you
to consider letting me set in.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 320
I’ll consider it. I’ll let you know tomorrow.

Young admitted that he later refused, telling Krasovec “we
didn’t feel he needed to be a part” of it (Tr. 32–33).
Young claimed on direct examination that the Med-Pay Plus
and PBA plans “were discussed in negotiations with the Union”
in the February 15 bargaining session (Tr. 473–474). On cross-
examination, when shown a copy of the Company’s notes of
the February 15 session, Young admitted, “I don’t see any-
where [that] we specifically said Med-Pay Plus or PBA.” His
only explanation for there being no mention in the notes of any
such discussion was: “Well, as I said, these, all of our minutes
are just a summary.” (Tr. 501.)
When Krasovec was recalled as a rebuttal witness and asked
if Med-Pay Plus was discussed at the February 15, 1997 negoti-
ating session, he positively and credibly testified, “No, sir, ab-
solutely not” (Tr. 584). I discredit, as a fabrication, Young’s
claim to the contrary.
I find that instituting the Med-Pay Plus and PBA delivery
system in the health insurance plan, as announced to the em-
ployees on February 17, 1995, was not “reasonably compre-
hended” within the Company’s implemented pre-impasse pro-
posal.
I therefore find that by unilaterally instituting the “entirely
new delivery system” in the insurance plan after the impasse,
the Company engaged in an unlawful refusal to bargain in vio-
lation of Section 8(a)(5) and (1).
c. Increase in new employee wages
About May 1, 1995 (after the September 19, 1994 impasse in
bargaining and nearly 3 months before the July 25, 1995
strike)—without notice to or bargaining with the Union—the
Company raised the start wage rates of some recent and newly
hired production workers above the start rates in the Com-
pany’s implemented pre-impasse proposal to the Union.
The start rates in the Company’s pre-impasse proposal (GC
Exh. 3, p. 5) were $6.50 an hour for production worker (with
periodic raises to $6.80 in 12 months, $7.30 in 24 months, and
a top rate of $7.85 in 36 months), $8.20 for fabricator (raised to
$8.70, $9.50, and $10.85 top rate), and $11.70 for craftsman
(raised to $12.20, $12.70, and $14.10 top rate). The night-shift
differential was 50 cents (Tr. 39).
On May 4, 1995, when Krasovec was meeting with employ-
ees scheduled to give pretrial affidavits (as he credibly testified)
(Tr. 84):

[T]hey were livid because they had found out through the
company grapevine that employees, new hired employees,
virtually new employees had received as much as $1.30 an
hour increase across the board.
Q. Was that putting these new people higher than the
existing bargaining unit employees?
A. In some cases, [the] new hires that had been there a
very short amount of time were receiving the same wages
as people that’d been there three or four years or longer.

Krasovec immediately called Young to protest the unilateral
action and asked for a meeting to talk about it. Later in a meet-
ing Young told Krasovec in effect that the Company “felt like
they had to do it to keep or attract employees.” Krasovec ob-
jected that the Company “ought to give an equal raise to every-
body or bargain for the amounts of the raises.” (Tr. 84–86.)
Young testified that he did not recall exactly what he told
Krasovec, but “I told him we may have given wage increases”
(Tr. 37).
In response to a subpoena, Young produced a list of 78 em-
ployees hired after the impasse, from September 19, 1994,
through May 8, 1996, showing the dates of hire and wages (Tr.
37–38; GC Exh. 14). Without explanation, the Company omit-
ted the start wage rates of all except three employees hired
before the July 25, 1995 strike, although including the start
rates of 37 of the employees hired after the strike.
The three employees were production workers Michael Cox
(hired 7/11/95), Shadrack Cummings (hired 7/6/95), and Frank
Whitaker (hired 5/19/95). Their rates were $1.35 an hour higher
than the start rates in the Company’s implemented pre-impasse
proposal. Cummings and Whitaker were paid the 36-month top
rate of $7.85 instead of the $6.50 start rate in the pre-impasse
proposal, and Cox was paid the top $8.35 night rate. (GC Exh.
3, p. 5, 14.)
The list also shows that on May 1, 1995 (4 days before
Krasovec learned that the Company was unilaterally granting
wage increases to new employees), the Company gave the same
$1.35 an hour increase to five other employees already on the
payroll. They were production workers Perrie Campbell (hired
3/15/95), Leah Cooper (hired 10/17/94), Stacy Dickison
(10/17/94), David Gibson (hired 2/23/95), and Richard Steimel
(hired 2/7/95). The Company also on July 24, 1995 (a day be-
fore the strike) unilaterally raised production worker David
Findley (hired 5/11/95) to the top $8.35 night rate. (GC Exh. 3,
p. 5, 14.)
Thus the evidence shows that—without bargaining with the
Union—the Company between May 1 and July 25, 1995 paid
nine new and recently hired production workers the top rate,
which was $1.35 higher than the start rate, even though em-
ployees hired before the impasse were being required to work
36 months to receive the top rate.
The Company concealed the start rate of 11 other production
workers, 10 fabricators, and 4 craftsmen, who were hired after
the September 19, 1994 impasse and before the July 25, 1995
strike, by omitting their start rates from the list of new employ-
ees (GC Exh. 3, p. 5, 14). The evidence does not reveal if any
of these 25 other new employees were paid starting rates higher
than those in the Company’s pre-impasse proposal.
When called as a defense witness, Young testified on direct
examination (Tr. 477):

Q. [By Mr. Craven] Now, at any time since the nego-
tiations began for this contract, has any employee ever re-
ceived more than the contractual maximum [emphasis
added] rate proposed to the union in negotiations?
A. Absolutely not.

This testimony, of course, is misleading. The Company’s
prepared documents (GC Exhs. 3 p. 5, 14) show that the Com-
pany was paying certain employees more than the proposed
start rate—not more than the proposed “maximum” (36-month
top) rate to which the company counsel referred in his question.
PAUL MUELLER CO. 321
Relying on Young’s misleading testimony and ignoring the
company-prepared documents in evidence, the Company con-
tends in its brief (at 9):

In no instance . . . was any employee moved to a rate higher
than the amount offered to the Union in negotiations (Tr.
477).

This contention in the brief is obviously incorrect. The docu-
mentary evidence shows that certain employees were “moved
to a higher [start] rate than the amount offered to the Union in
negotiations.” I reject the contention as erroneous.

The Union contends in its brief (at 10) that “the wage in-
crease had a discriminatory effect” because “senior bargaining
unit employees did not receive the wage increase and were
much more likely to be actively involved in or at least sympa-
thetic to the Union than brand new employees.”
There is obviously merit in the Union’s contention.
Finding that the start wage rate in its implemented pre-
impasse proposal was too low to attract and keep new employ-
ees, the Company proceeded to ignore the employees’ collec-
tive-bargaining representative. Instead of negotiating to remedy
the low-wage problem, the Company granted a wage increase
to some employees hired after the impasse, beyond what it was
willing to offer in negotiations with the Union.
Not only was the Company refusing to bargain in good faith
regarding wages, it was accomplishing two apparent discrimi-
natory goals. First, as the Union suggests, it was showing favor-
itism toward new employees, who had not been supporting the
Union over the years.
Second, as the General Counsel contends in his brief (at 28),
the Company acted unilaterally in making the changes after
impasse, “as though the Union did not exist.” This was clearly
intended to undercut support for the Union, making a possible
strike (R. Exhs. 13–16) less likely to succeed.
I find that paying the 36-month top rate to new and recently
hired employees after the September 19, 1994 impasse and
before the July 25, 1995 strike was a unilateral change in work-
ing conditions, a wage increase that was substantially greater
than any that the Company proposed during the negotiations.
I therefore find that the unilateral change in the production-
worker start wage rate violated Section 8(a)(5) and (1).
d. Transfer of work to nonunion plant
Finally in July 1995, after repeatedly making unilateral
changes in employee working conditions without notice to or
bargaining with the Union, the Company took actions evidently
designed to, and successfully did, provoke a strike—being the
“last straw,” as the Union contends in its brief (at 15).
In July it began transferring to its nonunion Iowa plant for
assembly some wine tanks, which for years had been manufac-
tured by union employees in the Springfield plant (Tr. 330–331,
335–338, 575–578). As Krasovec credibly testified (Tr. 87):

I received word they were sending equipment, the welding
machines, some specific machinery that was amenable only to
wine tank manufacturing, component parts, and material for
wine tanks, and I believe even some just newly started wine
tanks, [packing and shipping employees] were told to pack
them up and send them to Iowa.
. . . .
A. [In a meeting shortly after that] I asked [Young]
what was the deal about the wine tanks going to Iowa.
Q. What did Mr. Young say?
A. He didn’t know anything about it.

On Monday, July 24, 1995 (the day before the strike began),
Krasovec wrote Young in part (GC Exh. 24):

This is to follow up on my voice mail message to you
on Friday, July 21, 1995. In our negotiating session
Thursday, July 20, 1995, concerning the employee pension
plan, I inquired of you concerning the rumor of equipment
being shipped and orders being rerouted to Osceola, Iowa
for manufacture. At that time you disavowed any knowl-
edge, but said you would get back with me the following
day if it was true, that I was filing a formal complaint and
protesting those actions. I subsequently left a message for
you to please call or leave a voice mail message verifying
if this was true or not. I also attempted to “flag” you down
as you were leaving for lunch on Friday, to no avail. Since
that time, I have been informed by people in the plant that
it is in fact true. The Paul Mueller Company is rerouting
some 9 wine tanks, historically manufactured at this facil-
ity, resistant welding machines, spot welders, rolls and
other equipment which have been used at this facility for
years to Osceola for manufacture of these tanks. I also un-
derstand that at least two supervisors, along with some in-
structors have been reassigned from our facility to Osceola
to train the personnel there.
At this time, I demand immediate negotiations over the
transfer of this work and equipment, as this will drastically
alter the work in our facility.
Since I did not hear from you by the end of business
Friday, as I stipulated Thursday, I have no reason to re-
strain from filing further Unfair Labor Practice charges.

The only time in the past when wine tanks were transferred
to Iowa for assembly was in 1988, when the Company had a
previous strike at the Springfield plant and sent a single order
there, at a financial loss to the Company (Tr. 151, 417, 489–
490, 560, 564, 574–575; R. Exh. 20).
The Company offers no defense for failing to notify the Un-
ion before transferring the regular bargaining unit work to the
nonunion plant. Neither does it make any contention that there
was any urgency that prevented it from negotiating with the
Union before depriving the employees of this work.
The Company does contend in its brief (at 7–8):

Prior to the strike, the Springfield plant was operating at full
capacity yet could not fulfill required production needs. At the
same time, the Company’s Osceola, Iowa facility needed
work as it had 45 employees on layoff. [Emphasis added.]

This contention is not persuasive. In the first place, the re-
cord does not support the Company’s representation that there
were “45 employees on layoff” at the Iowa plant. In fact, the
Company’s own witness, Operations Manager Duane Shaw,
admitted at the trial: “In the middle of 1995 we did not have a
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 322
formal layoff. I believe at that point we began posting notices
for voluntary layoff” (Tr. 543–544 and 548).
This contention in the brief that there were 45 laid-off em-
ployees at the Iowa plant before the July 25, 1995 strike at the
Springfield plant is obviously contrary to Shaw’s admission. I
reject this contention also as erroneous.
The Company introduced two documents in evidence (R.
Exh. 21; Tr. 544–545 and 549–550) purporting to show the
extent of excessive capacity at the Iowa plant resulting from a
drop in the market for the plant’s principal product, milk cool-
ers (which have been manufactured at both the Springfield and
Iowa plants, depending on the workload) (Tr. 331–334, 547–
549, 557, 560).
The two documents are graphs entitled “Iowa Load” as of
July 12 and August 14, 1995. They purport to show the “capac-
ity” of the Iowa plant and indicate a work force of 77 employ-
ees in July 1995.
Both graphs, however, show on their face that the projected
capacity is based on an inexplicable expansion of the work
force from 77 in July 1995 to 91 in August 1995 and thereaf-
ter—despite the drop in the milk-cooler market. (“Capacity” is
defined on the graphs as follows: “Capacity based on 95 people
for Apr-May, 81 [in] June, 77 [in] July, and 91 [in] Aug on out,
100% efficiency, 90% load factor.”) Such a distortion of the
size of the work force during and after August 1995 would
obviously inflate the purported unused capacity.
After explaining these documents, Shaw claimed: “We had
quite a number of people in December [1995] and January
[1996] on voluntary layoff. I do not know, do not recall the
exact number, but I believe it was approximately 40 percent of
the work force, and that’s a rough estimation.” (Tr. 544–545,
549–551.)
Although the two graphs and another document relating to
the Iowa plant (R. Exh. 21) were forecasts, the Company pre-
pared a further exhibit (Tr. 563; R. Exh. 23) that shows the
actual annual work hours at the Iowa and Springfield plants.
This exhibit appears to belie Shaw’s rough estimate of a 40-
percent voluntary layoff in December 1995 and January 1996 at
the Iowa plant.
The exhibit (R. Exh. 23) shows that in 1995, the monthly av-
erage work hours at the Iowa plant (112,915.6 annual hours
divided by 12) was 9410 hours which, with one exception
(10,518 hours in 1994), was higher than the average monthly
work hours in any of the previous years at that plant. The next
two highest previous monthly averages were 8885 hours in
1990 and 8392 hours in 1993. If the hours of work on the wine
tanks in 1995 are excluded (112,915.6 minus 3189), the re-
maining monthly average in 1995 (9144 hours) would be 11.2
percent higher than the 1990 monthly average and 17.7 percent
higher than the 1993 monthly average.
In 1996, instead of the hours going down with a 40-percent
voluntary layoff, the average monthly hours for the first 7
months of the year (before the trial) grew from 9410 hours in
1995 to 10,733 hours (an increase of 14 percent). If the wine
tank hours are excluded in the 1995 and 1996 figures, the
monthly average in 1996 would have been an increase of 8
percent over the 1995 average.
Thus, contrary to the purported great loss of work at the
Iowa plant, employment there in 1995 and the first 7 months in
1996 was next to the highest of any year since the plant opened
in 1987 (Tr. 332–333, 560).
In the second place, there is no persuasive evidence that “the
Springfield plant was operating at full capacity yet could not
fulfill required production needs.” The Company cites no evi-
dence in its brief to support this contention.
It is obvious that Shaw—the only witness called by the
Company to support this contention—misconstrued the graph
on which the Company evidently relies. The graph (without
supporting documentation) is entitled “Tank Shop Load” (R.
Exh. 22). It purports to represent the total sales (somehow
measured in hours) for the weeks of July 21, 1995, through
January 12, 1996, and to forecast additional sales from October
6 to January 12, 1996.
The graph indicates that “Total Sold” during the week of
July 21 and the first 6 weeks of the strike (July 28 through Sep-
tember 1, 1995) exceeded the tank shop capacity. To the con-
trary, Shaw claimed that the graph shows “work scheduled”—
not total sales. He testified that work scheduled for the week of
July 21 was about 8100 hours, that the capacity of the tank shop
is about 4800 hours a week, “so we had more work than we had
people to do the work as of July 21st” (Tr. 551).
I find that both the preparation of the graph and Shaw’s in-
terpretation of it were designed to deceive.
Even if sales could be figured in hours, there is nothing on
the graph to indicate that those hours were scheduled to be
performed that week. The graph states instead, “Total Sold.”
Moreover, the “capacity” line on the graph does not represent
the capacity of the tank shop in the ordinary sense of the word.
It purports to be based on “148 people, 93% capacity, 80% load
factor.”
Defined this way, the capacity of the tank shop is shown to
be the same for the first 6 weeks of the strike (as if none of the
tank shop employees joined the strike, leaving a vacancy). The
graph shows that the tank-shop capacity dropped about 1000
hours on Labor Day week, about 2000 hours on Thanksgiving
week, and about 3000 hours on Christmas week.
When construing the graph, Shaw first testified that the ca-
pacity line “shows this is the number of people we have, the
available capacity” (Tr. 552). When asked “How can you put
out more work than you have capacity for?” he claimed “that’s
the challenge . . . we, of course worked some overtime which
would give us some additional capacity” (Tr. 553). Thus he was
then using the word “capacity” in the sense of available em-
ployees.
Later on the stand, Shaw changed his testimony and used the
word in a different sense. When admitting that employees in
“perhaps five different departments had the ability” to do the
tank-shop work and “We have many highly skilled employees
. . . in other areas of the company [that] could be transferred
and regularly are transferred to help with overload situations,”
Shaw used “capacity” in the sense of available space or equip-
ment. He claimed, “We didn’t have any available capacity. We
. . . had more work than we could build in the tank shop in gen-
eral.” (581–583.) He did not dispute that the Company had
lowered the amount of available equipment in the tank shop by
PAUL MUELLER CO. 323
sending wine-tank manufacturing equipment to the nonunion
plant. When testifying, Shaw appeared willing to fabricate any-
thing that might help the Company’s cause.
I reject, as not supported by credible evidence or documenta-
tion, the Company’s defense that before the strike, the Spring-
field plant “was operating at full capacity yet could not fulfill
required production needs.” I reject, as a falsification, the
Company’s further defense that its nonunion plant in Iowa “had
45 employees on layoff” before the July 25, 1995 strike.
I also find that even if these defenses were accepted, they
would not constitute justification for changing the working
conditions at the Springfield plant—transferring regular bar-
gaining unit work after the impasse in bargaining—without
notice to or bargaining with the Union. The change in working
conditions was a mandatory subject of bargaining and, as dis-
cussed, the Company has not contended that there was any
urgency that prevented it from negotiating with the Union be-
fore removing this bargaining unit work.
I further reject the Company’s contention that the “Manage-
ment Prerogatives” clause in the expired contract provides a
defense for its transfer of the wine tanks. As held in Bozeman
Deaconess Hospital, 322 NLRB 1107 (1997), it is well estab-
lished that “the waiver of a statutory right will not be inferred
from general contractual provisions; rather, such waivers must
be clear and unmistakable” and that “generally worded man-
agement-rights clauses” will not be construed as waivers of
statutory bargaining rights.”
The clause provides (GC Exh. 2, art. 2, p. 1) that “The Com-
pany shall retain all of the rights and functions of Management
. . . including . . . the right to manage the Company’s operations
and . . . determine the work to be subcontracted, or done by
employees . . . to open, operate or maintain other production
facilities . . . to determine the operations or services to be per-
formed by employees at the Company’s Springfield, Missouri
facilities.” It did not include the right to transfer bargaining unit
work to another plant.
I therefore find that by unilaterally transferring the wine
tanks to its nonunion Iowa plant after the impasse in bargaining
and before the July 25, 1995 strike, the Company engaged in an
unlawful refusal to bargain in violation of Section 8(a)(5) and
(1).
4. Cause of strike
On the weekend after Young on July 20, 1995, disclaimed
any knowledge of the transfer of wine tanks to the nonunion
Iowa plant and on Friday, July 21, reneged on his promise to
“get back with” Krasovec “if it was true,” over 200 union
members met and discussed the situation (Tr. 91).
Concerning the transfer of wine tanks, employees asked at
the meeting “a lot of questions” about the Company’s “shipping
their work outside of the plant in Springfield, Missouri where it
historically had been done” and expressed fear “they were go-
ing to ship everything out.” They complained about the Med-
Pay Plus health care plan the Company had adopted, stating
that they “were having a horrendous time getting their benefits
paid” and were upset that they “couldn’t go to their own doc-
tors, couldn’t go to their own hospitals.” Among other com-
plaints, employees “were very upset about the [wage] increases
to the new hires.” (Tr. 91–92, 95.)
Krasovec told the members that “we had done everything . . .
we could do through using the National Labor Relations Board
to cease these unfair labor practices” and the “only recourse I
saw at that time was that we may have to strike” (Tr. 92).
President-Business Manager James Hulse stated that the Com-
pany “was committing unfair labor practices and we didn’t
have any alternative but maybe to pursue a strike.” The union
membership authorized the calling of a strike. (Tr. 218, 280.)
On Monday, July 24, 1995, Krasovec gave Young a letter
complaining of the alleged unfair labor practices and advised
that “if these situations are not rectified by 12:01 a.m., July 25,
1995, you will leave us no other choice but to begin an Unfair
Labor Practice Strike shortly thereafter” (GC Exh. 25). The
Union then went on strike. The strike signs read “Unfair Labor
Practice.” (Tr. 218.)
The evidence is clear that the unfair labor practices about
which the employees complained at the strike-authorization
meeting were a major cause of the strike that began July 25,
1995 (Tr. 92).
I therefore find that the strike was an unfair labor practice
strike.
C. Conduct During the Strike
1. Contract offer
During the strike, which was continuing at the time of trial in
August 1996 (Tr. 151, 259), the Company did nothing to rem-
edy the immediate precipitating cause of the unfair labor prac-
tice strike: namely, its unilateral transfer of bargaining unit
work to its nonunion Iowa plant.
On October 11, 1995, the Company made a written offer for
a 5-year agreement. The offer would freeze for that 5-year pe-
riod the production-worker start wage rates below the $7.85 36-
month top rate in the implemented pre-impasse proposal, being
paid some new employees hired after the September 19, 1994
impasse and before the July 25, 1995 strike (GC Exh. 3, pp. 5,
14).
The offer (GC Exh. 18, p. 3), setting out the “classifications
and rates of pay [that] shall be in effect during the term of this
Agreement,” provided that the start wage rate for production
worker would be $6.80 in the 1st year, $7 in the 2d year, $7.20
in the 3d year, $7.35 in the 4th year, and $7.50 in the 5th year.
These start rates were all below the $7.85 rate already being
paid.
As found, the Company had granted that top wage as the
start rate to some production workers hired after the impasse
because the $6.50 start rate in the implemented pre-impasse
proposal was too low to attract and keep new employees. The
Company never offered $7.85 as the start wage rate to the Un-
ion.
The contract offer further set out the periodic raises to be
given employees in each of the three classifications for each of
the 5 years. For the first year, the craftsman start rate was
$12.05 an hour (raised to $12.60 in 6 months, $13.10 in 12
months, $13.80 in 18 months, and $14.50 in 24 months). The
fabricator start rate was $8.45 (raised to $8.95, $9.50, $10.50,
and $11.15 top rate). The production worker start rate, as indi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 324
cated, was $6.80 (raised to $7.10, $7.65, $7.75, and $8.10 top
rate).
As part of the Company’s October 11, 1995 offer to settle
the strike (GC Exh. 18, p. 2), the Company also offered to give
the employees the option to return to the previous health care
delivery system, permitting them again to go to their own doc-
tors and their own hospitals, or to remain with “the company
designated managed care organization (currently Med-Pay
Plus),” with a lower deductible and copayment. This offer
would require the Union to agree that Med-Pay Plus was the
Company’s “currently” designated health care delivery system,
implying that the Company was reserving the discretion to
change the delivery system at will.
A third part of the Company’s October 11, 1995 settlement
offer (GC Exh. 18, p. 3) would raise the accrued pension for-
mula from $21 to $25 a year—without restoring the coverage to
all participants in the plan.
The Union rejected this settlement offer.
2. Retroactive wage increases and other changes
On February 20, 1996 (as discussed below) the Company,
through a welding technician acting as its agent (as discussed
below), revealed to a striking employee that the Company had
decided not “to negotiate anymore until these unfair labor prac-
tice[s are] settled . . . that could be two or five years on appeals
. . . and that they were going to pay 40 or 50 cents backpay an
hour from September 19, 1995, up until the present day.”
A month later, the Company proceeded to carry out such a
plan.
On March 19, 1996, the Company notified the Union by let-
ter (GC Exh. 16) that effective April 1, 1996, it “intends to
implement” the wage increases in its October 11, 1995 offer, as
well as the pension benefit improvements and additional health
insurance options.
The letter further stated (as the Company had previously
planned and revealed to the striker through its employee agent):
“Additionally, a retroactive wage adjustment will be paid to
employees who worked from September 19, 1995 [the 1-year
anniversary of the September 19, 1994 implementation its pre-
impasse proposal] to April 1, 1996 (including those who
worked during that period but who subsequently joined the
strike).”
Thus, the Company was announcing its unilateral decision to
make the changes in conditions of employment as a fait accom-
pli, an accomplished fact. On March 27, 1996, it met with the
Union about 20 minutes and made it clear that its decision was
irreversible. It “explained what they were going to do,” asking
only if the Union “was going to reconsider” the October 11
offer or “had any questions.” (Tr. 93, 284.).
On March 28, 1996, the Company sent a letter to the em-
ployees (GC Exh. 18), reporting that “Yesterday we met with
the Union to discuss management’s intention to implement
[emphasis added] the first year wage increases, pension benefit
improvement and the health insurance option” in its October
11, 1995 offer and that the “Union did not raise any objec-
tions.”
The announced wage increases, which were implemented ef-
fective March 25, 1996 (as revealed by a company-prepared
exhibit, GC Exh. 14), did nothing to remedy the Company’s
unilateral conduct in paying a higher start wage rate (never
offered to the Union) to production workers hired after the
September 19, 1994 impasse and before the July 25, 1995
strike.
The exhibit (GC Exh. 14) further reveals that in implement-
ing these March 25, 1996 wage increases, the Company contin-
ued to favor new employees hired after the impasse and before
the strike, as shown by the following examples.
Production worker Frank Whitaker was paid the old (pre-
impasse proposal) 36-month top rate of $7.85 when he was
hired May 19, 1995 (2 months before the July 25, 1995 strike).
On March 25, 1996, when purporting to implement its October
11, 1995 offer, the Company paid him the new 24-month top
rate of $8.10 ($1 above new 6-month rate of $7.10 in the Octo-
ber 11, 1995 offer) (GC Exhs. 3, 14, 18).
Production worker Michael Cox was paid the old 36-month
top night rate of $8.35 when he was hired on July 11, 1995.
When the Company promoted him to fabricator on February 5,
1996, it paid him the old 36-month top rate of $10.85 ($2.65
above the old start rate of $8.20 for a fabricator). On March 25,
1996, it paid him the new 24-month top rate of $11.15 ($2.70
more than new start rate of $8.45 for the first 6 months as fabri-
cator).
Craftsman Vernie Monteer (hired 5/4/95) was raised to the
old 36-month top night rate of $14.60 on October 9, 1995
($2.40 above the old start night rate of $8.20 for the first year).
On March 25, 1996, the Company paid him the new 24-month
top night rate of $15 ($1.90 above the new 6-month night rate
$13.10).
These are not isolated examples. The company-prepared ex-
hibit (GC Exh. 14) reveals that in implementing the new wage
rates on March 25, 1996, the Company gave such favored
treatment to a total of 32 production workers, fabricators, and
craftsmen who were hired after the September 19, 1994 im-
passe and before the July 25, 1995 strike. The amounts above
the rates announced to the Union and the employees, and pur-
portedly implemented, ranged from 45 cents to $2.70 an hour.
This conduct during the strike is not specifically alleged as
violative of the Act.
The Company’s March 28, 1996 letter to the employees fur-
ther announced that “we believe it was only fair [emphasis
added]” to make the “wage adjustment” retroactive to all em-
ployees who remained nonstrikers for any time since Septem-
ber 19, 1995 (3 weeks before the Company’s October 11, 1995
offer to the Union).
I find that this retroactive “wage adjustment,” because it was
“only fair,” was obviously a reward for crossing the picket line.
I also find that it was a demonstration to the employees that the
Company intended to continue determining itself the employ-
ees’ conditions of employment as if the Union no longer ex-
isted in the plant and that the retroactive pay was intended to
undercut support for the Union.
This letter to the employees was dated March 28, 1996, 8
months after the strike began. Although 149 of the 208 strikers
remained on strike (GC Exh. 20), the Company added:

PAUL MUELLER CO. 325
As we have previously informed you, we view the
strike as “effectively over” and we continue to increase
our capacity by hiring new employees and aggressively
training and promoting. . . .
We are very optimistic about our future in view of the
excellent cooperation and team effort by our working em-
ployees. [Emphasis added.]

The Company was saying that the strike was futile and that
as far as it was concerned, the Union was defeated. The Com-
pany was conveying the clear message to the employees that it
was “very optimistic about our future [without any union in the
plant].” An obvious purpose was to break the strike and elimi-
nate union representation of the employees.
As found, the Company’s unilateral decision to make the
wage and other changes was announced as a fait accompli, and
the changes were implemented without the Company remedy-
ing the unfair labor practices that were a major cause of the
strike.
I therefore find, as alleged in the complaint, that by announc-
ing and instituting the new terms and conditions of employ-
ment, comprising the changes in the wage rates, the health in-
surance plan, and the retirement plan, as well as the wage in-
crease retroactive to September 19, 1995—in the absence of a
bona fide impasse over the changes—the Company failed and
refused to bargain in good faith in violation of Section 8(a)(5)
and (1).
I further find that this conduct, without good-faith bargain-
ing, prolonged the unfair labor practice strike, as alleged.
3. Threats and promises
It is undisputed, as striking employee Tom Gillette credibly
testified (Tr. 340–341), that welding technician Michael Teague
came to his home about 7 p.m. on February 20, 1996, and said:

[The Company was not] going to negotiate anymore until
these unfair labor practice[s are] settled and . . . that could be
two or five years on appeals . . . that they wanted only 50 em-
ployees back and that I should go in while the jobs are still
there. . . . the first ones that went in would be on first shift, and
the later ones would be on second and third shift. . . . that Ja-
mie Claybough . . . if he came back in they would make him a
master craftsman and pay him 75 cents an hour more money
. . . that the replacements that they hired were permanent
workers and that they were going to pay 40 to 50 cents back-
pay an hour from September 19, 1995 up until the present
day. And if I went in, I could get in on some of that. And he
told me that Mike Krasovec hadn’t been telling us the truth
about this unfair labor practice strike.

Although Teague is not a supervisor, I find that he was act-
ing as the Company’s apparent agent. The Company’s employ-
ing him in his position of welding technician created a reason-
able basis for the employees to believe that he was authorized
to act on its behalf.
Teague is one of the two welding technicians in the weld-
ing/engineering department. He is responsible for about 150 of
the 250 welders in the plant, as defined in the Company’s posi-
tion description (Tr. 347–348, 352–353; GC Exh. 40, pp. 1–2):

“The Welding Technician is responsible for direct
technical control of . . . welders and welding operators in
the manufacturing operations to comply with company
policy and ASME Boiler and Pressure Code. . . . Has full
technical responsibility . . . for welding performance quali-
fications . . . . Instruct employees on the correct welding
procedures on all welding and cutting equipment. . . . Ad-
minister welding test for existing and potential weld-
ers. . . . Determine if applicants are qualified for a welding
classification. . . . Evaluate substandard work. Recom-
mend and oversee the corrective action and repair.

Teague trains and tests welders and issues the certification
required for an ASME welder, a higher classification (Tr. 166–
167, 176, 339, 344, 350, 355–357, 362, 366–367, 373–374).
He testified that he is not a member of the bargaining unit
because “I’m company employed.” Although hourly paid, he
does not punch a timeclock, does not wear a hard hat, and
spends a large part of the time in his office. There he has a tele-
phone, computer, and file cabinets in which he maintains “cop-
ies of everybody’s welding tests they have taken” and “has
information on different welding equipment” (Tr. 349, 354,
358–360.)
Teague regularly attends meetings with sales people, engi-
neers, supervisors, and “other people in the office” (Tr. 361).
In these circumstances, I find it evident that the employees
“would reasonably believe that the employee . . . was reflecting
company policy and speaking and acting for management,” Pitt
Ohio Express, 322 NLRB 867 fn. 2 ( 1997); Kellwood Co., 206
NLRB 665, 672 (1973) (nonunit trainer as management
spokesman). He was participating in the Company’s campaign
to break the strike, going to Gillette’s home, making threats and
promises to persuade Gillette to return to work, and revealing
the Company’s plans not to negotiate with the Union and to
give employees crossing the picket line retroactive pay (as the
Company announced a month later).
Gillette was an unfair labor practice striker, entitled to his
job back if he returned to work. I find, as alleged, that the
Company unlawfully (a) threatened Gillette with permanent
replacement if he did not abandon the strike, (b) indicated that
it would be futile for him to continue supporting the Union, and
(c) promised a promotion to another striking employee to per-
suade the employee to abandon the strike, engaging in coercive
conduct in violation of Section 8(a)(1).
4. Discrimination against union officers
a. Against Secretary-Treasurer Gary Horned
On January 30, 1996, the Company overruled the foreman’s
decision to give Gary Horned a verbal warning for being a few
minutes late from lunch and gave him a written warning, with
the threat of a possible 5-day suspension or termination as the
next action to be taken. It is undisputed, as Horned credibly
testified, that previously the Company had permitted Horned
and other employees to make up the time at the end of the shift
for being late, without any discipline (Tr. 182, 189).
Horned was secretary-treasurer of the Local and a member of
the union negotiating committee. As decided by the Union, he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 326
remained at work during the strike to serve as union steward to
represent nonstriking employees. (Tr. 178–179.)
It is undisputed that Horned was told by Supervisor Wayne
Horton on January 30 that he would be given a verbal warning
for returning late from lunch in the Company’s picnic area (Tr.
179–183, 191, 214). He was later called to the office of Plant
Superintendent Kenny McGuire and given a written warning
for “Failure to be in his assigned work area[, returning] from
lunch approximately 7 minutes late,” with the threat of “5 day
Suspension or Termination” as the “Next action to be taken (if
necessary)” (Tr. 185–187; GC Exh. 31.)
When Horned asked in the January 30 meeting about the
verbal warning he had been told he would be getting, Horton
said, ”No, you got your verbal.” (Tr. 186.) Horton was referring
to an incident on January 4, 1996. Horned and several employ-
ees had been at a door looking for some commotion outside the
plant and McGuire told Horned “you shouldn’t be over there”
and “he wanted me to stay in my work area.” Horned said okay.
McGuire then hit Horned on the shoulder, “just started laugh-
ing,” and walked off. Nothing was said about a verbal warning,
and there was evidently no record of a verbal warning in
Horned’s file. (Tr. 183–185, 192–195.) As prepared by Horton,
the January 30 written warning did not show any previous
counseling “in the past 12 months” (Tr. 206; GC Exh. 31).
It is undisputed that Horned protested in the meeting on
January 30: “But you didn’t tell me I was getting a verbal warn-
ing.” McGuire responded that he did not have to tell Horned or
put it on his record. Horned argued, “Wait a minute. If you
don’t put it on my record and you don’t tell me I got a verbal
warning, how in the hell am I supposed to know I got a verbal
warning?” McGuire again responded, “Well, I don’t have to tell
you you got a verbal warning and I don’t have to put it on your
record.” (Tr. 186.)
In the absence of any verbal warning in Horned’s file, I infer
that the Company’s claim that Horned had been given a verbal
warning earlier that month was fabricated as an afterthought, to
justify the January 30 written warning.
On January 31, 1996, Horned complained in writing (GC
Exh. 32) that the Company did not follow “their own corrective
procedure” by not giving the verbal warning (on January 30) as
Horton had stated, but going “to the next step which is more
drastic,” bypassing the normal procedure because of Horton’s
position as the Local’s financial secretary-treasurer and chief
steward. The next day he gave Personnel Director Young a
letter (GC Exh. 23), stating in part: “I feel l am being discrimi-
nated against, as it appears that other employees are not repri-
manded for . . . being a few minutes tardy.”
On February 5, 1996, Young responded, sending Horned a
letter (GC Exh. 22) that reveals the Company’s determination
to find some justification for giving the union official the writ-
ten warning. Although the Company’s practice both before and
after this incident was to permit employees to eat their lunch on
the Company’s premises outside the plant in the picnic area
without clocking out (Tr. 179–180, 213–216), Young asserted
in the letter: “I would point out that your supervisor did not
include that you left the premises during lunch, without clock-
ing out and in on your timecard. This may have resulted in your
suspension [emphasis added].”
I discredit Young’s claim, when called as a defense witness,
that “If people leave the building, they have always been re-
quired to clock out.” Despite this claim, he admitted that
“there’s no specific work rule that says you have to clock out to
eat in the picnic area,” which is “company property,” and “I
believe our work rule says company premises.” He then
claimed, however, that “we have always practiced that if they
leave the building they should clock in and clock out.” (Tr.
516–517.)
Finally Young admitted, on further questioning by the union
counsel (Tr. 517):

Q. [By Mr. Riley] But would you agree that it is a
common practice for employees to eat lunch in the picnic
area without clocking out?
A. I would agree that that occurs.

I find that the General Counsel has made a prima facie show-
ing that the Company was unlawfully motivated and that it
gave Secretary-Treasurer Horned the written warning because
he was a union official in the plant, in its unlawful campaign to
undercut support for the Union. Wright Line, 251 NLRB 1083
(1980).
The Company having failed to demonstrate that it would
have taken the same action against Horned in the absence of his
serving as a union official. I find that the Company unlawfully
discriminated against him in violation of Section 8(a)(3) and
(1).
Because the Company has not disputed the credited testi-
mony that it had previously permitted Horned and other em-
ployees to make up the time at the end of the shift for being
late, without any discipline, I deem it unnecessary to rule on the
allegation that the Company unlawfully refused to furnish the
Union with requested information that might establish disparate
treatment.
b. Against President-Business Manager James Hulse
On June 17, 1996, about 2 weeks after master craftsman
Hulse returned to work from the strike, the Company singled
him out and gave him a written warning for continuing to keep
a log of his jobs. He had been keeping such a log since 1992. It
was common practice for employees to keep a record of their
work, and employees have continued doing so after Hulse was
given the warning. (Tr. 217, 236–237, 241–242, 252–253, 284–
285, 380, 417, 428.)
Supervisor Chris McKenna had told Hulse on June 13 that he
did not want Hulse to keep the log anymore, and Hulse had said
okay. Hulse then realized that when the production part goes to
another department, the paperwork goes with it and he has no
record of the part number. He continued keeping the log, want-
ing to talk to McKenna again about it. (Tr. 242.)
On June 14, McKenna asked if Hulse was still keeping his
record. Hulse said that yes he was, that he was not trying to be
insubordinate, but “I wanted to talk more about it.” He ex-
plained that after he told McKenna he would quit keeping the
log, he realized that when he sent the paperwork off with the
part, “I had no record of what part of that job that I worked on.”
He requested a meeting with Personnel Director Young, with
Steward Horned present. (Tr. 243.)
PAUL MUELLER CO. 327
Instead of the Company granting the request for such a meet-
ing, Plant Superintendent McGuire personally intervened on
June 14. As found, McGuire was responsible for already giving
Horned a discriminatory written warning.
McGuire came to Hulse’s job with McKenna and said, “Jim,
Chris tells me that he asked you to stop keeping a log of your
jobs and you are still doing it.” Hulse said yes and explained
why. McGuire said “You don’t need to do that” because “Chris
has all that in his computer.” (Tr. 244.)
Hulse stated that “I’m a master level [craftsman],” and “If
Chris doesn’t trust me to get into his computer, how can I trust
him to put the information in right about me?” Expressing his
concern of being disciplined “for something that I didn’t do,”
Hulse explained that previously he had been accused of “mak-
ing mistakes on a couple of jobs that I didn’t even work on and
. . . I took Chris over to my clipboard and showed him the day
that that job was done that I hadn’t worked on it. And so, I
didn’t want to be disciplined for something I didn’t do and I
wanted a record of it. . . . I didn’t have access to . . . his com-
puter.” (Tr. 244–245.)
McGuire responded that the Company is here to make
money, and Hulse agreed. “I want the company to make
money,” but “This only takes 20, 25 seconds to write down”
and other people have used his log. “It’s actually making the
company money. If it helps them run down a part, saves time.”
(Tr. 245.)
As Hulse credibly testified, McGuire “started the conversa-
tion again and I felt like he was leading up to disciplining me or
tell me to quit, and that’s when I butted in and told him . . . if
you are going to say what I think you are getting ready to say
. . . I want a job steward.” McGuire responded that Hulse was a
shop steward. Hulse said, “Well, I know I’m a shop steward,
but I also want one,” pointing out that “Gary Horned is a shop
steward here.” McGuire said, “I’ll see if he’s available.” This
was about 2:15 or 2:30 p.m., Friday, June 14. Quitting time
was 3:30 p.m.
About 1:30 p.m. the following Monday, June 17, McKenna
called Hulse to a meeting in McGuire’s office, with Steward
Gerald Clevenger present. There McGuire asked if Hulse was
still “keeping a log after Chris asked you not to,” said the Com-
pany was here to make money, and stated, “I’m going to write
you up.” (Tr. 246–247.)
Hulse stated that he was not trying to be insubordinate, that
“I thought there was going to be another meeting because I’d
asked for a job steward, and you said that [you] would see if
Gary Horned was available. And so I thought there was going
to be another meeting, so I continued that Monday . . . keeping
a log . . . up until the time . . . of this meeting.” (Tr. 247.)
Hulse protested that he had kept a log since 1992 and there
had been no problem. He asked “why there is a problem now
two weeks after I returned back from strike?” He told McGuire
that McKenna had used his log (in checking the dispatch list)
and also “other people in the office” (expeditors looking for a
job or a part). He repeated: “Nothing was said then. Why is it a
problem now?” (Tr. 240–241, 248.)
McGuire said he was still going to write Hulse up, even
though “I told him that there was other people that I knew of
that kept a log.” McGuire asked for their names, but Hulse
refused to supply them, explaining that his practice as a union
steward was “never use anybody’s name unless I clear it with
them first.”
It is not disputed, as Clevenger credibly testified, that
Clevenger spoke up during the meeting and said he was not
aware that keeping notes was wrong “because I keep notes,
too.” McGuire told him, “It may be necessary in your depart-
ment but in Jim’s department it is not.” (Tr. 428, 432–433.)
The written warning given to Hulse on June 17, 1996, signed
by McKenna and McGuire (GC Exh. 35), was for “Willful
Insubordination,” stating that “employee willfully disregarded
instructions and continued to conduct personal business during
work hours.”
At the trial Hulse credibly named a number of employees
who kept a log on the job. These included David Ball, who had
told Hulse that he started keeping a log after the computer had
him down as doing a job that he had never been on. (Tr. 252–
253.)
On cross-examination, after Hulse repeated his estimate of
“about 20, 25 seconds” to make each entry in his log, the com-
pany counsel asked him to demonstrate how long it would take
to make the entry when moving from one job to another. He did
so, and the parties stipulated that it took 18 seconds. (Tr. 260–
267; R. Exh. 2.)
Hulse further credibly testified on cross-examination that
since receiving the written warning, he has continued keeping
the record at home, but without the part numbers, and has seen
other employees keeping such detailed records. They have also
“come up and told me that they have.” (Tr. 268–269). Other
employees credibly testified about the common practice of
keeping a record of their work.
Fabricator Debra Behrens (hired May 5, 1995, GC Exh. 20)
was told “I should write down everything that I work on.” She
believed “everybody keeps a record.” (Tr. 284–285.) Craftsman
Robert Wilson has been keeping a personal log for years. His
supervisor was aware that he was doing so, because “there have
been times” that the supervisor asked him when he had worked
on a certain job, for welding certification purposes. He testified
on cross-examination that “Yes,” he has “been keeping a log”
since he returned from the strike (Tr. 380). Craftsman David
Cotter was aware that Gerald Clevenger and Don Warnecke
still keep a log (Tr. 417).
Thus Plant Superintendent McGuire, who was already re-
sponsible for giving the Union’s secretary-treasurer, Horned, a
discriminatory written warning, gave the Union’s president-
business manager, Hulse, the written warning after he returned
from the strike. McGuire singled out this second union official
and disciplined him for continuing to follow the common prac-
tice of keeping a log of the jobs. Although it took Hulse only a
fraction of a minute to keep a record of each of his jobs and
although the Company had benefited by the record, McGuire
repeatedly claimed that his purpose was to make money for the
Company. He ignored Hulse’s legitimate fear that he (like
Horned) would be wrongfully disciplined.
I find that the General Counsel has made a prima facie show-
ing that the Company was again unlawfully motivated and that
it gave President Hulse the written warning because he was a
union official in the plant, in its campaign to undercut support
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 328
for the Union. I also find that the Company has failed to dem-
onstrate that it would have taken the same action against Hulse
in the absence of his serving as a union official. I therefore find
that the Company unlawfully discriminated against him in vio-
lation of Section 8(a)(3) and (1).
5. Delayed reinstatement of strikers
It is undisputed that on May 22, 1996, as President-Business
Manager Hulse credibly testified, he and about 100 other strik-
ers made an unconditional offer to return to work. International
Organizer Krasovec, as their spokesman, told Plant Superinten-
dent McGuire that as unfair labor practice strikers making their
unconditional offer to return, they should be put back to work.
McGuire said he would accept their offer to return, but that
“they wouldn’t take [them] right now.” (Tr. 236–237.)
It is well established, as the Board held in Grondorf, Field,
Black & Co., 318 NLRB 996, 997 (1995), enfd. in relevant part
107 F.3d 882 (D.C. Cir. 1997):

Because unfair labor practice strikers are entitled to
special remedial provisions, even if there is no allegation
of any denial of reinstatement, we shall order the [employ-
ers] to offer the strikers, on their unconditional applica-
tions to return to work, immediate and full reinstatement
to their former jobs or, if such positions no longer exist, to
substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously en-
joyed, discharging, if necessary, any replacements hired
after the onset of the strike. The [employers] shall make
the strikers whole for any loss of earnings and other bene-
fits resulting from its failure to reinstate them within 5
days of their unconditional requests, with backpay and in-
terest.

Having denied that the strike was an unfair labor practice
strike, the Company reinstated only 15 of the strikers within the
5-day period by May 27, 1996. It belatedly reinstated 15 later in
May, 56 in June, 9 in July, and 9 also in August (8 of the 9
during the week before the trial that began on August 19). (GC
Exh. 20.)
In summary, the unfair labor practice began on July 25,
1995. As found, 149 strikers remained on strike on March 28,
1996, when the Company informed the employees that the
strike was “effectively over.” A total of 104 strikers made an
unconditional offer to return to work on May 22, 1996. The
Company reinstated 15 of the 104 strikers within 5 days. It
belatedly reinstated the remaining 89 employees by the time of
trial. There remained over 40 employees on strike (Tr. 151; GC
Exh. 20).
6. Failure to return strikers to former positions
Gerald Clevenger. When the Company belatedly reinstated
Steward Clevenger on June 3, 1996, it assigned him to train as
a fabricator welder instead of returning him to his former job as
electrician (Tr. 426).
Eugene Crain. On June 18, 1996, when the Company belat-
edly reinstated Eugene Crain, it refused to return him to his
former job of sandblasting in department 960, stating that sand-
blasting was slow there. It assigned him to less desirable work,
training and working as a floor grinder in department 945. His
former sandblasting job was being performed by an employee
whom he was training when he went on strike. (Tr. 419–422;
GC Exh. 41.)
Timothy Daniels. Before the strike, fabricator Timothy
Daniels was in charge of the plate heat exchangers assembly
area, was doing all the shipping paperwork, and was “inspect-
ing the units, just making sure that everything gets done right in
the department.” After belatedly reinstating him on June 3,
1996, the Company would no longer place him in charge of the
assembly area, stating that “they didn’t have to put us back” in
the same job as long as they gave “our money back” and “put
us back in the same classification.” He had been replaced by an
employee he had trained before going on strike. (Tr. 310–313,
316–320.)
Luong Nguyen. When craftsman Luong Nguyen, a certified
ASME welder, was belatedly reinstated on June 17, 1996, the
Company refused to return him to Bay One, forming tank
heads. It assigned me to less desirable work in Bay Seven. (Tr.
435–439.)
Having caused the unfair labor practice strike, the Company
was obligated to assign these returning strikers, after their May
22, 1996 unconditional offer to return, to the positions they
held before going on strike in protest. Instead, the Company
failed and refused to return them to their former jobs, which
were being performed by nonstriking employees.
I find that the Company has failed and refused to return these
unfair labor practice strikers, Steward Gerald Clevenger and
employees Eugene Crain, Timothy Daniels, and Luong
Nguyen, to their former positions in retaliation for their engag-
ing in the strike. I therefore find that the Company unlawfully
discriminated against them, violating Section 8(a)(3) and (1).
7. Assignments to onerous work
Daniel Gambriel. On June 17, 1996, the day before the
Company belatedly reinstated master fabricator Daniel
Gambriel, Supervisor Michael Cook told production worker
Rusty Fender, a strike replacement, to work on a different job.
Fender was then steaming plates, “getting all the glue and rub-
ber off of them . . . about the worst job there is.” It is undenied
that Cook told Fender to do the different job so Cook “could
leave the job to Danny” (Gambriel) who would be coming back
on June 18. (Tr. 404–405.)
Although Gambriel had been the leadman in the department
before going on strike, coordinating and inspecting the work,
Cook assigned him when he arrived on June 18, 1996, to the
onerous, “awful nasty,” job steaming about 250 plates. On June
19 Steward Clevenger went with him to the office to complain
“about me not being rightfully returned to my rightful posi-
tion.” Cook told him that “as far as they were concerned, the
case was closed.” For 2 weeks he was assigned to this and other
onerous work. (Tr. 314–315, 405–413, 415, 430.)
Mackey Boles, Jerry Marshall, and Robert Wilson. On June
12 and 13, 1996, after craftsman Mackey Boles, fabricator Jerry
Marshall, and craftsman Robert Williams were reinstated, the
Company took them from their jobs in the plant. While non-
striking junior and replacement employees were performing
their jobs, they were assigned to work those 2 days in the yard
in the hot sun, doing the onerous work of cleaning up trash and
PAUL MUELLER CO. 329
picking up, cutting, and loading scrap metal in the dumpster.
(Tr. 376, 378–379, 381–391, 393.)
The Company was obviously giving preference in assigning
work to the nonstriking junior and replacement employees. I
find that the General Counsel has made a prima facie showing
that the Company assigned the onerous work to the returning
unfair labor practice strikers in retaliation for their engaging in
the strike. The Company has failed to demonstrate that it oth-
erwise would have taken the same action against them.
I therefore find that the Company discriminatorily issued the
onerous work assignments to Mackey Boles, Daniel Gambriel,
Jerry Marshall, and Robert Wilson for engaging in the strike,
violating Section 8(a)(3) and (1).
8. Other alleged violations
a. Absenteeism
The amended complaint (GC Exh. 39) alleges that about Oc-
tober 18, 1995, the Company unlawfully issued a verbal warn-
ing to Debra Behrens (a member of the union negotiating
committee) for engaging in activities on behalf of the Union.
The Company asserts that Behrens was absent 11 days in the
14-day period, October 4 to 17. The General Counsel offered
testimony that because she was working on the third shift, she
would be absent both the night before and after she attended a
daytime meeting, but failed to account for other absences. (Tr.
286, 301.)
I find that the General Counsel has failed to prove that she
was being discriminated against. I therefore find that the allega-
tion must be dismissed.
b. Parking restriction
The complaint alleges that on October 30, 1995, the Com-
pany unlawfully prohibited striking employees from parking in
the employee parking lot. The Company then reserved the park-
ing lot for “actively working employees and official company
business” (Tr. 50–51, 114–115, 327, 396–397; GC Exh. 19.)
Neither the General Counsel nor the Union has cited any
precedent for finding a violation of the Act for prohibiting
strikers from trespassing on company property to park their cars
during a strike. I find that the allegation must be dismissed.
c. Picket shelter
About November 22, 1995, the Union erected a wooden
picket shelter (about 4 feet wide, 10 feet long, and 8 feet high)
without permission on the Company’s premises across the
street from the plant and refused to remove it. The Company
made various efforts to have the shelter removed and on De-
cember 28, 1995, did remove and store it in its warehouse until
the Company returned it to the Union. Upon recovering the
shelter, the Union placed it back on the Company’s premises
near where it had been. (Tr. 95–113, 134–148, 156–157, 218–
236, 323, 441–443; GC Exhs. 26–27, 34, 38, 42–43; R. Exhs.
1–2.)
On January 4, 1996, the Company issued written warnings to
12 strikers for failing to carry out its instructions to vacate the
shelter and also brought trespass charges against them for po-
lice summons. In deference to the Board’s alleged jurisdiction
over the matter, the trespass charges were dismissed. (Tr. 61,
158–163, 167–168, 172–175, 281–283, 311, 322–325; GC
Exhs. 21, 29–30.)
Again, neither the General Counsel nor the Union has cited
any precedent for finding a violation of the Act for prohibiting
such a trespass on the Company’s property. I find that the 12
striking employees were engaged in unprotected activity and
that the Company’s issuing the written warnings and bringing
the trespass charges against them for engaging in this unauthor-
ized trespass on its property did not violate the employees’
right to engage in protected concerted activities.
I therefore find that the allegations that the Company unlaw-
fully removed the picket shelter, ordered the striking employees
to vacate the shelter, and took the disciplinary action against the
12 striking employees must be dismissed.
d. Threat of closer supervision
On May 31, 1996, after President-Business Manager Hulse
was belatedly reinstated, he was called to Plant Superintendent
McGuire’s office. There McGuire stated that Hulse’s depart-
ment had an efficiency rating of 120 percent and that if it did
not stay that way, he would be looking around to see “if the
returning strikers [were not] pulling a slowdown or goldbrick-
ing.” (Tr. 238.)
That same day, when striker Roger Humphrey was also rein-
stated, McGuire told him that his department had an efficiency
rating of 117 percent , that “they didn’t want me to come back
in there and disrupt the department . . . to keep up the work and
not pull a slowdown.” After the meeting, Supervisor McKenna
said they were “going to keep an eye on me and make sure
[that] I didn’t slow down and disrupt the department.” (Tr.
165.)
The General Counsel contends in its brief (at 38) that
McGuire “was threatening these employees with closer super-
vision because of the union activities.” I disagree.
McGuire’s statements were made in the context of the return
of most of the strikers, yet the strike was continuing. Under
these circumstances I deem his statements to be a reasonable,
understandable precaution against the returning strikers disrupt-
ing production in support of the remaining strikers.
I therefore find that the allegation that McGuire threatened
“its employees with closer supervision because of their union
activities and support” must be dismissed.
CONCLUSIONS OF LAW
1. By unilaterally transferring bargaining unit work, the as-
sembly of wine tanks, from its Springfield plant to its nonunion
plant in Osceola, Iowa without notice to or bargaining with the
Union, the Company has engaged in unfair labor practices af-
fecting commerce within the meaning of Section 8(a)(5) and (1)
and Section 2(6) and (7) of the Act.
2. By unilaterally paying new production workers a start rate
of $7.85 an hour, which was never offered the Union in nego-
tiations, the Company violated Section 8(a)(5) and (1).
3. By unilaterally instituting in its health insurance plan the
Med-Pay Plus and PBA delivery system, which was not rea-
sonably comprehended in its implemented pre-impasse pro-
posal to the Union, the Company violated Section 8(a)(5) and
(1).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 330
4. By unilaterally changing the pre-impasse proposal to limit
the increased benefits to retirement plan participants on the
current payroll, the Company violated Section 8(a)(5) and (1).
5. The strike that began on July 25, 1995, was an unfair labor
practice strike.
6. By unilaterally announcing and implementing its deci-
sion—without bargaining to impasse—to make changes in the
health insurance plan and retirement plan on April 1, 1996, to
grant wage increases on March 25, 1996, and to make the wage
increases retroactive to September 19, 1995, the Company vio-
lated Section 8(a)(5) and (1).
7. By threatening an unfair labor practice striker with perma-
nent replacement if he did not abandon the strike, by indicating
to him that it would be futile for him to continue supporting the
Union, and by promising a promotion to encourage an em-
ployee to abandon the strike, the Company engaged in coercive
conduct in violation of Section 8(a)(1).
8. By discriminatorily giving President-Business Manager
James Hulse and Secretary-Treasurer Gary Horned written
warnings because they were union officials in the plant, in its
campaign to undercut support for the Union, the Company
violated Section 8(a)(3) and (1).
9. The Company failed to reinstate, within 5 days, 89 of the
104 unfair labor practice strikers who made an unconditional
offer to return to work on May 22, 1996.
10. By discriminatorily failing and refusing to return the un-
fair labor practice strikers, Steward Gerald Clevenger and em-
ployees Eugene Crain, Timothy Daniels, and Luong Nguyen, to
their former positions, the Company has violated Section
8(a)(3) and (1).
11. By discriminatorily issuing onerous work assignments to
strikers Mackey Boles, Daniel Gambriel, Jerry Marshall, and
Robert Wilson after reinstating them, in retaliation for their
engaging in the strike, the Company violated Section 8(a)(3)
and (1).
12. The undisputed appropriate bargaining unit is

All full-time and regular part-time craftsmen, fabricators, and
production workers employed by Paul Mueller Company at
its Springfield, Missouri facility, excluding all executives,
managers, professional employees, technical employees, of-
fice employees, clerical employees, administrative employees,
guards, and supervisors as defined in the Act and employees
employed in the machine shop, maintenance areas, and other
machinist work areas.

REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
Having unlawfully transferred the assembly of wine tanks to
its nonunion plant in Iowa without notice to or bargaining with
the Union, the Company must restore this bargaining unit work
to unit employees in the Springfield plant and make bargaining
unit employees whole for any lost earnings resulting from the
transfer, plus interest.
As found, because the Company’s $6.50 start wage rate in its
implemented pre-impasse proposal was too low to attract and
keep production workers after the impasse and before the July
25, 1995 strike, the Company unilaterally raised the start rate
$1.35 to $7.85 an hour, which it began on May 1, 1995, paying
some new production workers without notice to or bargaining
with the Union. It never offered the wage increase in negotia-
tions with the Union.
After the Union went on strike, which was caused in part by
this unlawful refusal to bargain, the Company did nothing to
remedy the violation of Section 8(a)(5) and (1). To the con-
trary, it offered the Union a contract that would freeze the pro-
duction-worker start rate, for a period of 5 years, below $7.85.
At the same time, the Company was continuing to favor not
only these new employees, but also other production workers,
fabricators, and craftsmen hired after the impasse and before
the strike—paying them wages as high as $2.70 above the rates
it had offered the Union.
Effective March 25, 1996, without bargaining to impasse on
wages, the Company implemented the 5-year freeze on the
production-worker start rate below $7.85.
Under these circumstances, and in view of the Company’s
continuing to determine unilaterally the employees’ wages and
working conditions as if the Union no longer existed in the
plant, I find that as a necessary remedy for its refusal to bar-
gain, the Company must raise the start wage rate for all produc-
tion workers to $7.35 an hour, retroactive to May 1, 1995, and
grant the production workers backpay, with interest.
Having implemented other changes in wage rates effective
March 25, 1996 without bargaining to impasse on them and
having otherwise refused to bargain while acting “as though the
Union did not exist,” the Company must on request by the Un-
ion bargain in good faith on wages and other conditions of em-
ployment.
As a necessary remedy for its unilaterally instituting the
Med-Pay Plus and PBA delivery system in its health insurance
plan, the Company upon request by the Union must restore the
previous health care delivery system and make whole unit em-
ployees for any incurred expenses caused by these unlawful
changes in the plan, with interest.
To remedy its unlawful amendment to the retirement plan,
limiting the increased benefits to retirement plan participants on
the current payroll, the Company must rescind this amendment
and make whole any plan participant adversely affected, with
interest.
For the unfair labor practice strikers who remained on strike
after May 22, 1996, the Company must offer them, on their
unconditional requests to return to work, immediate and full
reinstatement to their former jobs or, if such positions no longer
exist, to substantially equivalent positions, without prejudice to
their seniority or other rights and privileges previously enjoyed,
discharging, if necessary, any replacements hired after the onset
of the strike on July 25, 1995.
The Company must make these strikers whole for any loss of
earnings and other benefits resulting from its failure to reinstate
them within 5 days of their unconditional requests, with back-
pay and interest computed in the manner prescribed in F. W.
PAUL MUELLER CO. 331
Woolworth Co., 90 NLRB 289 (1950) and New Horizons for
the Retarded, 283 NLRB 1173 (1987).
Having failed to reinstate, within 5 days, 89 unfair labor
practice strikers who made their unconditional offer to return to
work on May 22, 1996, the Company must make them whole
for any loss of earnings and other benefits resulting from its
failure, with backpay and interest.
Having failed and refused to return four of the strikers to
their former positions after belatedly reinstating them, the
Company must promptly do so upon request.
[Recommended Order omitted from publication.]