Reichhold Chemicals, Inc.

National Labor Relations Board - Board Decisions

Nov 22, 1985

277 N.L.R.B. 639 (N.L.R.B. 1985)

REICHHOLD CHEMICALS
Reichhold Chemicals , Inc. and Teamsters Local 515.
Case 10-CA-20331
22 November 1985
DECISION AND ORDER
By CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 9 May 1985 Administrative Law Judge Law-
rence W. Cullen issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party filed a brief in opposition
to the exceptions.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent violated
Section 8(a)(5) and (1) of the Act by engaging in
surface bargaining and by insisting to impasse on a
waiver of the employees' right to strike. The judge
also found that the employees' strike in April 1984
was an unfair labor practice strike and that the Re-
spondent violated Section 8(a)(3) and (1) of the Act
by failing to reinstate striking employees on their
unconditional request to return to work. We re-
verse the judge's finding.2
The Union was certified by the Board on 5 No-
vember 1982 as the exclusive bargaining represent-
ative of the Respondent's production and mainte-
nance employees. The parties began bargaining on
an initial contract in January 1983. At the Union's
request the parties deferred bargaining on econom-
ic matters until agreement was reached on all non-
economic matters., During 29 bargaining meetings
held between 18 January 1983 and 15 February
1984 the parties exchanged proposals and counter-
proposals, and reached agreement on a number of
items . After the final session on 15 February 1984,
however, the parties still disagreed about several
noneconomic issues and therefore had not bar-
gained with respect to economic matters. The
Union struck the Respondent on 1 April 1984. The
strike ended on 6 April 1984 when the Union made
' The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect . Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
2 We affirm the judge's finding that the Respondent 's supervisor Henry
violated Sec 8(a)(l) by threatening employees with discharge and the fu-
tility of bargaining
639
an unconditional return-to-work offer on behalf of
all striking employees. At that point the Respond-
ent ceased hiring permanent replacements for strik-
ers, recalled a number of strikers who had not been
replaced, and placed the remaining strikers on a
preferential hiring list. As of the hearing, 27 strik-
ers had not been returned to work despite their un-
conditional offers to do so.
The Respondent's initial contract proposal of 24
February 1983 included a broad management-rights
clause, a narrow grievance definition, and a com-
prehensive unauthorized work stoppage provision.
The Respondent amended its management-rights
and work stoppage proposals on 13 October 1983
in an attempt to make them acceptable to the
Union. Although the parties resolved many sub-
stantive issues during negotiations, they did not
reach agreement on, inter alia, the management-
rights clause, the definition of a grievance, or the
no-strike clause.
The judge's surface bargaining finding is based
primarily on the Respondent's insistence on these
three proposals. He concluded that the manage-
ment-rights, grievance, and no-strike proposals in
combination were unreasonable and impeded any
prospects for reaching agreement. In determining
that the Respondent engaged in surface bargaining,
the judge also relied on the supervisory threat that
he found violative of Section 8(a)(1), other state-
ments by supervisors to employees which were not
specifically found to be unlawful, and his finding
that the Respondent unlawfully insisted to impasse
on a "non-permissive" subject of bargaining, i.e.,
the waiver of employees' statutory rights.
Contrary to the judge, we find that the totality
of the Respondent's conduct throughout the course
of negotiations establishes that the Respondent en-
gaged in hard bargaining, rather than surface bar-
gaining. The Respondent was willing at all times to
meet and bargain with the Union, attended all
scheduled meetings, fulfilled its procedural obliga-
tions, exchanged proposals, and made concessions
on numerous issues.3 The Supreme Court has held
that an employer lawfully may bargain for provi-
sions such as the Respondent's proposed manage-
ment-rights, grievance, and no-strike clauses.
NLRB v. American National Insurance Co., 343
U.S. 395, 407-408 (1952). Further, as the Board
stated in Rescar, Inc.,4 "[I]t is not the Board's role
3 In fact, the judge noted that it appeared that the Respondent was
somewhat more diligent in attending meetings pi epared to discuss matters
than was the Union Further, shortly after the 15 February 1984 meeting,
the Respondent notified a Federal mediator that it was willing to bargain
with the Union in March
4 274 NLRB 1 (1985)
277 NLRB No. 73
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to sit in judgment of the substantive terms of bar-
gaining , but rather to oversee the process to ascer-
tain that the parties are making a sincere effort to
reach agreement." The Board will not attempt to
evaluate the reasonableness of a party's bargaining
proposals, as distinguished from bargaining tactics,
in determining whether the party has bargained in
good faith. Accordingly, the Respondent's insist-
ence on broad management-rights and no-strike
clauses with a restrictive grievance provision is not
evidence of an intent to frustrate the collective-bar-
gaining process.
As part of its proposed no-strike clause, the Re-
spondent sought a waiver of the employees' statu-
tory rights to engage in unfair labor practice strikes
and to seek redress from the Board or other tribu-
nal for discipline imposed under the clause on strik-
ers who are replaced. 5 The judge found that the
waiver of rights sought by the Respondent was a
"non-permissive" subject of bargaining in conflict
with public policy and that the Respondent's insist-
ence to impasse on it constituted a violation of Sec-
tion 8(a)(5), separate from the surface bargaining
violation.
We disagree with any implication in the judge's
use of the term "non-permissive" that the dual
waiver of rights demanded by the Respondent is an
illegal bargaining subject. Generally, a no-strike
clause is a mandatory subject of bargaining.6 There
is nothing in the Act which prohibits a union from
contractually waiving the employees' right to strike
over unfair labor practices'' as long as it satisfies its
duty of fair representation. Further, the proposed
waiver of the right of replaced striking employees
to avail themselves of the Board's processes must,
in the absence of other evidence, be read as permit-
ting only nondiscriminatory application, and it does
not extend to any other possible appeals by em-
ployees to the Board on other matters. Because this
waiver is merely derivative of the waiver of the
right to strike, it, too, is a mandatory subject of
bargaining. Consequently, we find that the Re-
spondent would have been entitled to insist to im-
passe on the dual waiver of rights in question.8 Ac-
cordingly, the Respondent's conduct with respect
to the proposed waivers was neither violative of
Section 8(a)(5) nor indicative of bad-faith bargain-
ing.
5 The Respondent's proposed no-strike provisions are set out as Ap-
pendices B and E of the judge's decision
6 Shell Oil Co, 77 NLRB 1306 (1948).
7 See Mastro Plastics Corp v. NLRB, 350 U.S. 270 (1956), Metropolitan
Edison Co Y. NLRB, 460 U S 693 (1983).
8 Having found that the proposed waivers are mandatory subjects of
bargaining, we find it unnecessary to decide whether the parties reached
impasse on them, and we disavow the judge's determination that the par-
ties were at impasse regarding the waivers on 15 November 1983
What remains of the totality of conduct relied on
by the judge in finding surface bargaining are cer-
tain statements by supervisors to employees regard-
ing the negotiations. We have found, in agreement
with the judge, that in February 1984 a supervisor
threatened two employees with discharge and the
futility of bargaining. The judge also found that at
unspecified times during the course of negotiations
five different supervisors made workplace, state-
ments to three employees to the effect that the Re-
spondent would not enter into a contract and- that
adverse consequences would occur if the employ-
ees went on strike. Although finding that a number
of these statements occurred within the 6-month
limitations period of Section 10(b), the judge did_
not find them to be violative of Section 8(a)(1), but
merely cited them as evidence of bad-faith bargain-
ing.
We conclude that the 8(a)(1) threat which we
have found and the other supervisory statements
cited by the judge are not sufficient to prove that
the Respondent intended to frustrate the Union and
employees in their attempts to negotiate a collec-
tive-bargaining agreement. There is no evidence
that any of the supervisors involved were actual
participants in those negotiations or in the develop-
ment of the Respondent's negotiation policy. This
away-from-the-table conduct is not sufficient to in-
validate that which was otherwise lawful, good-
faith bargaining by the Respondent.
In view of our findings that the Respondent did
not violate Section 8(a)(5), it follows that the strike
was not an unfair labor practice strike. According-
ly, we also reverse the judge's finding that the Re-
spondent violated Section 8(a)(3) by permanently
replacing its striking employees.
ORDER
The National Labor Relations Board orders that
the Respondent, Reichhold Chemicals, Inc., Ken-
sington, Georgia, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening its employees with discharge or
other reprisals if they engage in concerted activities
on behalf of the Union, or with the futility of their
continued support of the Union as their bargaining
agent.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
REICHHOLD CHEMICALS
(a) Post at its facility in Kensington, Georgia,
copies of the attached notice marked "Appendix."9
Copies of the notice, on forms provided by the Re-
gional Director for Region 10, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
s If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board " shall read "Posted Pursuant to a Judgment of
the United States Cour t of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE. WILL NOT threaten you with discharge or
other reprisals if you engage in concerted activities
on behalf of Teamsters Local 515, or threaten you
with the futility of your continued support of the
Union as your bargaining agent.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
REICHHOLD CHEMICALS, INC.
Josephine S. Miller, Esq., and Victor A. McLemore, Esq.,
for the General Counsel.
641
Lowell W. Olson, Esq. (Constangy, Brooks, and Smith), of
Atlanta, Georgia, for the Respondent.
Tim Edwards, Esq. (Gerber, Gerber & Algee), of Memphis,
Tennessee, for the Charging Party.
DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge.
This case was heard before me on 3, 4, 5, 30, and 31 Oc-
tober 1984, at La Fayette, Georgia. The hearing was
held pursuant to a complaint issued by the Regional Di-
rector for Region 10 of the National Labor Relations
Board (the Board) on 21 August 1984. The complaint is
based on an amended charge filed by Teamsters Local
515 (the Union or the Charging Party) on 13 August
1984, and alleges that Reichhold Chemicals, Inc. (the Re-
spondent) has violated Section 8(a)(1) of the National
Labor Relations Act (the Act) by issuing a threat of dis-
charge to Respondent's employees if they joined or en-
gaged in activities on behalf of the Union and that it has
violated Section 8(a)(5) of the Act by refusing to bargain
in good faith and that it has violated Section 8(a)(3) of
the Act by refusing to allow its employees to return to
work following an unfair labor practice strike and the
employees' unconditional offer to return to work. The
complaint is joined by the answer of Respondent where-
in it denies the commission of any violations of the Act.'
On the entire record in this proceeding, including my
observation of the witnesses who testified herein, and
after due consideration of the positions of the parties and
briefs filed by the General Counsel and Counsel for Re-
spondent, I make the following
FINDINGS OF FACT AND ANALYSIS 1
I. JURISDICTION
The complaint alleges, the Respondent admits, and I
find that Respondent is, and has been at all times materi-
al, a Georgia corporation with an office and place of
business at Kensington, Georgia, where it is engaged in
the manufacture of chemical products, that during the
past calendar year (prior to the filing of the complaint), a
representative period, Respondent sold and shipped from
its Kensington, Georgia facility finished products valued
in excess of $50,000 directly to customers located outside
the State of Georgia, and that Respondent is, and has-
been at all times material, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
11. THE LABOR ORGANIZATION
The complaint alleges, the answer admits, and I find
that the Union is, and has been at all times material, a
labor organization within the meaning of Section 2(5) of
the Act.
1 The General Counsel's unopposed posthearing motion to correct the
record by including therein its G C Exh. 18 in the rejected exhibit file is
granted.
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE APPROPRIATE UNIT
The complaint alleges, the answer admits, and I find
that:
All production and maintenance employees em-
ployed by Respondent at its Kensington, Georgia
facility, including all lab technicians, but excluding
all office clerical employees, professional employ-
ees, technical employees, guards and supervisors as
defined in the Act, constitute a unit appropriate for
the purpose of collective bargaining within the
meaning of Section 9(b) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On 5 November 1982, following an election held on 27
and 28 October 1982, the Union was certified as the ex-
clusive bargaining representative of all of the employees
in the above -described unit. In December 1982 the Union
requested that the Respondent bargain collectively with
it and in January 1983 the Respondent and the Union
commenced bargaining an initial labor agreement be-
tween them. At the request of the Union the parties
agreed to defer negotiating with respect to economic
matters until agreement was reached on noneconomic
matters. During the period of the commencement of ne-
gotiations from January 1983 until February 1984, when
the last negotiation meeting was held, the parties met on
29 separate occasions . During these negotiations the par-
ties submitted proposals and counterproposals and agree-
ment was reached on a number of items. However, as of
the date of the final negotiation session in February 1984,
the parties had not agreed to several noneconomic mat-
ters (some of which are the subject of the allegations of
bad-faith bargaining in the complaint), and had not com-
menced bargaining with respect to economic matters. On
1 April 1984 the Union struck the Employer's facilities.
The strike was of short duration and the Union offered
the employees back to work to the Employer uncondi-
tionally on 6 April 1984. The Employer had hired some
strike replacements during the short strike period and
subsequently allowed its employees to return to work
except for those for whom strike replacements had been
hired . As of the date of the hearing in this matter, 27
strikers had not been returned to work by the Employer.
B. The Alleged 8(a)(1) Violation-the Alleged Threat
Issued by Supervisor Joe Henry to employees James
Stoker and Jimmie Warnock
Facts
Employee James Stoker testified that in the second
week of February 1984 he and employee Jimmie War-
nock were working in the Employer's chemical laborato-
ry when Shift Supervisor Joe Henry entered the labora-
tory to pick up some shipping sheets. A conversation oc-
curred concerning how business was and Stoker told
Henry "that it looked like we was going to have to go
out on strike" and that Henry replied that if the employ-
ees went out on strike they would lose their jobs as the
Employer was not going to give the employees a con-
tract. Stoker then inquired of Henry whether he thought
the Respondent would give the employees a labor agree-
ment if they went on strike to which Henry replied,
"No, I don't" and "Things are going to be different."
Stoker asked Henry what he meant and Henry replied,
"Well, you will find out if you go on strike." Jimmie
Warnock testified that Henry had stated that the Re-
spondent would not give the employees a contract and
that if they struck, the employees would lose their jobs.
Henry denied having had the conversation or having
made the statements although he acknowledged that he`
went through the lab once a shift as part of his responsi-
bility as a shift supervisor.
He testified further that in February or March 1984,
he went into the lab and found the phone off the hook
after unsuccessful attempts by a foreman to get in touch
with the employees in the lab and that he asked Stoker
why the phone was off the hook and told him that he
Henry would appreciate it if he Stoker would try to
keep the phone on the hook. He contended that this was
the only conversation he had with Stoker and Warnock.
He acknowledged on cross-examination that he had
talked to Stoker and Warnock on other occasions in the
lab and that he has had general conversations with them.
He also acknowledged having been present at meetings
where the foremen or supervisors were informed as to
what was occurring in the contract negotiations between
the Respondent and the Union. He testified that the ne-
gotiations were "briefly just scanned over" and that they
were not informed as to the details but were told that
"things were going smooth" and that "it was in the lan-
guage stage and we weren't involved in any of that and I
wasn't really concerned about it." He testified he did not
recall ever having been asked anything concerning the
contract by the employees, that they may have done so
but that he just did not recall.
Analysis
I credit the testimony of employees Stoker and War-
nock that Henry issued the threat as set out above. I
found their testimony to be specific and credible. Con-
versely, I did not believe the denial of Henry that he had
made such a threat. I also find it unlikely and do not
credit his testimony that he was only generally apprised
of the status of negotiations to the limited extent that
things were going smoothly and that negotiations were
in the language stage. I also consider it unlikely that he
would not recall whether he had conversations with em-
ployees concerning the ongoing negotiations. I accord-
ingly find that Respondent violated Section 8(a)(1) of'the
Act by the issuance of said threat of discharge and the
futility of bargaining for a labor agreement, by its super-
visor Henry to employees Stoker and Warnock.
C. The Various Alleged Statements of Respondent's
Supervisors to Certain of Respondent's Employees
Concerning the Contract Negotiations
Facts
Employee David Reece testified that between January
1983 and 1 April 1984 (the date of the commencement of
REICHHOLD CHEMICALS
the strike), he had conversations with several of Re-
spondent's supervisors, specifically Charles Mitchell,
Terry Johnson, Joe Henry, Clyde Willingham, and Mac
Agnew concerning the status of the contract negotia-
tions. He testified that he had these conversations with
Charles Mitchell, a production foreman on the A shift "a
couple of times a month," but could not recall when
these conversations took place, but testified they took
place in the control room, the breakroom, and the strip-
per room. He testified that "Mitchell said more than
once the company did not intend to give us a contract
and if we did go out on strike, we could and would be
permanently replaced, that they were going to run the
plant with us or without us." He testified further that
"Bobby" Edwards [sic Evans] was present at the time of
this conversation.
Reece also testified that Clyde Willingham, a shift su-
pervisor, spoke with him concerning the Union on an av-
erage of once every 2 or 3 months, that these conversa-
tions occurred in the store room and in the breakroom,
but was also unable to place the dates or times of these
conversations. Reece testified that Willingham told him,
"that he was afraid we were going to lose our jobs. The
company did not intend to give us a contract. They were
going to run the plant if we went out on strike, we
would be replaced."
Reece testified also that Day-Shift Yard Crew Fore-
man Mac Agnew discussed the Union with him about
once a month when he (Reece) was on the day shift in
the control room, and that Agnew told -him that the
Company would not give the employees a contract and
that if they went on strike they would be replaced and
lose their jobs.
Reece ' also testified that Production Foreman Terry
Johnson spoke to him once every 2 or 3 months con-
cerning the Union in either the control room or the pro-
duction foreman's office, but could not place the time or
date of these conversations. Reece testified that Johnson
told him "that we were making a mistake, that we
weren't going to get a contract, and if we went out on
strike, when we did we would be replaced."
Reece also testified that Shift Supervisor Joe Henry
discussed the Union with him every 2 or 3 months in the
control room and possibly the breakroom, but was
unable to place the date or time of these conversations,
Reece testified that Henry told him "that the company
had no intention of giving us a contract. If we went out
on strike, we would lose our job."
Warehouse employee Charles Smith testified that
during the period from January 1983 until April 1984, he
had conversations with Mac Agnew with whom he
shared an office in the warehouse approximately once a
month, but could not place 1 he times or dates of these
conversations. Smith testified that "Mac Agnew told me
that we would never get a contract, and we would stand
to lose our job if we went on strike."
Employee Bobby Evans testified that he had approxi-
mately 15 conversations with Supervisor Charles Mitch-
ell concerning the Union after January 1983, that the
conversations occurred once or twice a month and
picked up in number following the strike vote taken by
the Union in August 1983. He placed these conversations
643
as having occurred primarily in the vicinity of the break-
room with approximately two of them occurring in the
lab. On two occasions employee Reece was also present.
On other occasions employees Charles Autrey, Charles
Hughes, and Jimmie Warnock may have been present.
He was unable to place the dates or times that these con-
versations occurred. On these occasions Mitchell stated
"that we didn't have a chance of getting a contract, the
company was not going to give us one and if we did
strike, we would be without a job."
Respondent called as witnesses Supervisors Clyde Wil-
lingham, Terry Johnson, James "Mac" Agnew, Wesley
Lee "Joe" Henry Jr., and Charles T. Mitchell, each of
whom denied the statements attributed to him by the em-
ployees concerning the Union.
Supervisor Willingham initially testified on direct ex-
amination that he had never talked to David Reece about
the Union, nor had any conversations with any other
employee when he told the employees that Respondent
would never give the Union a contract. He testified that
he was kept up to date concerning the progress of nego-
tiations and that he had attended meetings with Herman
Allison who was Respondent's outside counsel with re-
spect to labor relations and the chief negotiator for Re-
spondent. On cross-examination, Willingham acknowl-
edged that he had heard employees discuss the pending
contract negotiations and that the employees had asked
him how the negotiations were progressing, but denied
that he told the employees anything as he contended that
he did not know how negotiations were progressing. In
response to further questioning on cross-examination,
Willingham admitted that he had answered employees'
questions concerning contract negotiations. He also ad-
mitted having had general conversations with employee
Reece, but denied that they involved contract negotia-
tions. In response to my questioning, Willingham testified
that he told several employees who questioned him con-
cerning contract negotiations that they were in the lan-
guage stage, but that was all he knew as he had not been
informed of any more specific details of the status of the
negotiations. He testified further on redirect examination
that he had attended three supervisory meetings during
the course of the negotiations.
Supervisor Terry Johnson testified on direct examina-
tion that he had had only a single conversation with
Reece concerning the Union, and that this took place the
day after the election and involved a statement by Reece
that Reece appreciated that Johnson had not said any-
thing to Reece prior to the election concerning the
Union. He denied having had any other conversations
with Reece concerning the Union. On cross-examination,
he denied having had any knowledge of the progress of
negotiations although he had attended supervisory meet-
ings, but denied that the negotiations were discussed at
those meetings. He testified that he was told not to talk
to the employees concerning the Union. He acknowl-
edged that the employees sometimes asked him how ne-
gotiations were progressing, but testified that he told
them he did not know.
James "Mac" Agnew denied that he had ever talked
to Reece about the Union He acknowledged having had
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discussions with employee Charles Smith about the
Union when he would ask Smith (a member of the union
bargaining committee) whether there had been any
progress and Smith would reply that the parties were
making progress. He denied ever having told Smith that
Respondent would never give the Union a contract or
that the employees would lose their jobs if they went on
strike. He admitted that he had answered employees'
questions concerning negotiations. He acknowledged that
he had attended supervisory meetings when Respondent
updated the supervisors and foremen on the progress of
negotiations. In answer to questions from me, Agnew
testified that, in response to questions by the employees
concerning the progress of negotiations, he answered
their questions if he knew the answer and if he did not
know the answer, he found out. However, in response to
further questioning by me, he was unable to remember
when these conversations occurred, with whom they oc-
curred, or what he had told them.
Wesley "Joe" Henry, a shift supervisor, testified that
he had never had any conversation with Reece concern-
ing the Respondent's unwillingness to give the employ-
ees a contract or their replacement in the event they
struck the Respondent. As noted previously in this deci-
sion, he also denied the statements attributed to him by
employees Stoker and Warnock that he had told them in
February 1984 that Respondent would never give the
Union a contract and that they would lose their jobs if
they went on strike. He acknowledged on cross-examina-
tion that he had general conversations with Reece, War-
nock, and Stoker. He acknowledged also that he had at-
tended supervisory meetings when the supervisors were
apprised of the status of negotiations, that they were told
negotiations were going smoothly and were in the lan-
guage stage. He testified he was not informed of the first
strike vote (in August 1983) at these meetings, but
learned of it from the employees. He testified he did not
recall whether he had been asked any questions about
negotiations by the employees, but testified this might
have occurred.
Production Foreman Charles Mitchell testified that he
had not made the statements attributed to him by em-
ployee Reece to the effect that the Respondent did not
intend to give the employees a contract and that they
would be permanently replaced if they went out on
strike as Respondent was going to run its business with
or without the employees. He also denied having made
the statements attributed to him by employee Evans con-
cerning the negotiations or the Respondent's unwilling-
ness to give the employees a contract. He also testified
that he could recall no specific, discussion with an indi-
vidual employee concerning the Union but testified he
overheard conversations between other employees con-
cerning the Union and negotiations. On cross-examina-
tion, he acknowledged that on some occasions he lis-
tened to conversations among the employees concerning
the progress of negotiations and may have joined in
these conversations and that he heard employees state
that they wished contract negotiations would be com-
pleted ("for it to get over with"). He did not recall the
employees involved in these conversations other than
employee Ragland who was a member of the Union's ne-
gotiating committee and with whom he discussed negoti-
ations individually. In addition, Respondent called sever-
al employees who are currently employed by Respond-
ent, all of whom testified that they had not been threat-
ened with the futility of bargaining or adverse conse-
quences if the employees went on strike.
Analysis
I credit the testimony of employees Reece, Smith, and
Evans that the statements attributed to the various super-
visors were made to the employees over the course of
the contract negotiations as set out above to the effect
that Respondent would not enter into a contract, that
bargaining was futile, and that adverse consequences
would occur if the employees went on strike. In making
these determinations, I have considered the interests of
the witnesses . Neither set of witnesses are impartial.
Thus, each of the General Counsel' s witnesses to these
alleged conversations are employees who were perma-
nently replaced and were not returned to work following
their unconditional offer to return. Each of the supervi-
sors called by Respondent to rebut the charges are cur-
rently employed by Respondent. I have also considered
the inability of the General Counsel's witnesses to speci-
fy dates and times concerning these alleged statements
by Respondent's supervisors. However, I am convinced
that these employees were candid concerning these con-
versations, notwithstanding their substantial interest in
the outcome of these proceedings and their inability to
specify the dates and times of these conversations. I find
that this inability is (as the General Counsel contends) re-
lated at least in part to the large number of instances in-
volved over an extended period of time . I also consider
irrelevant the testimony of several current employees
called by Respondent that they themselves were not
threatened with the futility of bargaining or adverse con-
sequences if the employees went on strike.
I cannot subscribe to Respondent's contention that
these antiunion statements should not be imputed to it
under these circumstances on the ground that the super-
visors were not kept abreast of the status of negotiations.
I find it unlikely that the supervisors were apprised of
negotiations by Respondent only to the limited extent
testified to by the supervisors that they were told only
that the parties were at odds over language. I also do not
find credible the uniform denials of these supervisors that
such conversations took place. I note particularly in the
case of supervisor Agnew that he acknowledged that
conversations had occurred between him and the em-
ployees concerning negotiations, but when questioned by
me about as to the specifics, he testified he was unable to
recall. I found the denials of these conversations by these
supervisors to be stilted and unconvincing. I thus con-
clude that the various statements attributed to Respond-
ent's supervisors did occur and reflected Respondent's
intent to frustrate the Union and employees in their at-
tempts to negotiate a collective -bargaining agreement.
REICHHOLD CHEMICALS 645
D. The Alleged Bargaining Violations
Facts
Following the Union's certification in December 1982
and its submission of its initiall contract proposal mailed
to the Respondent on 28 December 1982, the parties
commenced negotiations for an initial labor agreement
with the first meeting held on 18 January 1983. The
chief spokesman and negotiator for the Union was Noel
Robert Carl Logan Jr., the Union's president and busi-
ness manager. On several occasions during the course,of
negotiations, other union representatives served as the
spokesman for the Union in the absence of Logan. The
chief spokesman and negotiator for the Respondent was
its attorney, Herman Lee Allison. Including their initial,
negotiation meeting of 18 January 1983, the parties en-
gaged in 29 separate bargaining sessions with the final
session held on 15 February 1984. At the request of the
Union the parties had agreed to set aside economic mat-
ters for discussion until noneconomic matters were re-
solved.
In February 1983 the Respondent submitted its initial
contract proposal including a lengthy and broad manage-
ment-rights clause, a restrictive grievance definition, and
a restrictive unauthorized work stoppage clause. It subse-
quently amended its management-rights and unauthor-
ized work stoppage proposals on 13 October 1983.2
During the course of negotiations the patties resolved
many substantive issues. However, agreement was not
reached on the management-rights clause, the definition
of a grievance, or the unauthorized work stoppage
clause. These, three clauses, among others, remained
items of dispute throughout negotiations.
Business Manager Logan testified as follows: Follow-
ing the submission of the Union's initial proposal on 28
December 1982, the parties commenced bargaining on 18
January 1983. The Company, through its representative
Allison, submitted its initial proposals at a later meeting
on 24 February 1983, including its proposals on the
grievance procedure, management-rights, and unauthor-
ized) work stoppage (Jt. Exh. 1).
Various aspects' of the Union's and the Company's pro-
posals were discussed throughout the course of negotia-
tions with agreement reached on a number of proposals
and a number remaining unresolved. At the 18 March
1983 session, Allison told the union representatives that
the Company had to have a basic management-rights
clause with the rights set out in the agreement. Company
rules were also discussed and Allison stated that the
Company wanted sole discretion with the Union having
no recourse through the grievance procedure. Stewards
were discussed as were the grievance procedure and un-
2 App A-Respondent ' s original Management Rights Proposal of 24
February 1983-Jt Exh I
App B- Respondent 's original Unauthorized Work Stoppage Propos-
al of 24 February 1983-Jt Exh 1
App C --Respondent 's definition of a grievance in its original Griev-
ance Procedure and Arbitration Proposal of 24 February 1983-Jt Exh
1
App D-Respondent 's Management - Rights Proposal of 13 October
1983-G.C Exh. 7
App E--Respondent ' s Unauthorized Work Stoppage Proposal of 13
October 1983-G C. Exh 8
authorized work stoppage clauses, among others. At the
session of 26 July 1983, section 1 of the grievance proce-
dure was discussed and Allison stated the Company's po-
sition that a grievance was a specific violation of the
contract whereas the Union contended a grievance was a
(1) violation of the contract, (2) violation of past prac-
tice, (3) unfair treatment, or (4) violation of the law. At
that meeting Allison stated that the Company was going
to have a management»rights clause and that the Union
would be precluded from arbitrating management rights.
Logan stated there would be a management-rights clause
but the Union would not give up its right to grieve. Alli-
son stated the Union would not have the right to grieve
the selling or closing of the plant in whole or in part.
Logan said he had never signed a contract with that pro-
vision, whereas Allison stated he had never signed one
without it. Logan told Allison he thought the Company
was attempting to obtain an unfair advantage. At the
next meeting on 27 July 1983, various provisions of man-
agement rights were discussed. Allison asked Logan
whether he had any proposals to work out the disagree-
ments, and Logan told him "Not at this time."
At the session of 13 August 1983, the parties also dis-
cussed the definition of a grievance and Allison asked
Logan what a grievance was to which Logan replied
that it was a violation of the contract, past practice, law,
or unfair treatment. Certain other items of the grievance
procedure were agreed upon at that meeting. During this
meeting inspection rights were also discussed, concerning
whether a management representative should accompany
a union representative at all times when he is in the
plant. The Company's position was that the union repre-
sentative should be accompanied by a management rep-
resentative, whereas the Union's position was that he
need not be accompanied by a management representa-
tive.
At the meeting of 18 August 1983, the parties dis-
cussed grievance and arbitration and in answer to an in-
quiry by Allison, Logan told Allison the Union was not
prepared to respond to the Company's proposals with
regard to the grievance and arbitration procedure as he
did not think there was any movement at that time and
he would need to discuss this with the Union's attorneys.
At the 30 August 1983 meeting, it was noted that the
noneconomic items remaining open or unresolved at that
time were checkoff, management rights, protection of
rights, maintenance of stewards, work stoppage, subcon-
tracting, pay day, and appendix B. At the meeting of 15
September 1983, the parties discussed grievance and arbi-
tration and management rights. Logan told Allison at
that meeting that the Union would not agree to a more
favorable provisions clause, and that the management-
rights clause was a strike issue . Logan listed what the
Union considered to be strike issues, which were the
more favorable provisions clause, grievance and arbitra-
tion, checkoff, management rights, no-strike (unauthor-
ized work stoppage), protection of rights, special rights,
stewards, discharge and suspension, maintenance of
standards, and subcontracting At the meeting of 30 Sep-
tember 1983, Logan gave the Company a typed list of
union proposals on remaining noneconomic issues and
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
made it a package and also gave the Company amended
management-rights and unauthorized work stoppage pro-
posals.
The next meeting was 13 October 1983, and Allison
told the Union that their package had left very little
room for the Company to negotiate and that he had de-
leted from the Company's proposal a requirement under
the no-strike clause that employees cross a lawful pri-
mary picket line of another employer. Logan responded
that this was covered in the Union's protection of rights
proposal, whereas Allison responded regarding the set-
ting up of picket lines, and stated if the parties had a
contract the employees would be expected to come to
work and cross a picket line. Logan responded, "You are
trying to restrict the grievance procedure and preclude
an arbitrator from ruling on legitimate grievances," and
Allison responded, "You are absolutely right." At that
point the parties stated that they had made all the moves
they could. The Company withdrew its more favorable
provisions clause at this meeting.
The next meeting was held on 14 October 1983, and
Allison stated the Company had made all the movement
it could under the current circumstances, and Logan re-
plied that, "I guess we'were there, we had agreed to dis-
agree" and stated that, "We intend to take action." The
remainder of the meeting involved Allison's statements
that the Company intended to operate the plant and
would hire replacements, that the employees would be
permitted to keep their insurance if they entered the
plant and made arrangements to do so, and that he ex-
pected any picket line to be peaceful or the Company
would take action . The next meeting was held on 15 No-
vember 1983, at which time a Federal mediator was
called in at the request of the Union. Various issues were
discussed at this meeting . The Union made the Company
a package offer accepting the Company's section 1-A in
place of the Union's section 1 grievance procedure pro-
posal, accepting the Company's proposal in regard to
"Agreement" and withdrawing the Union's protection of
rights and maintenance of standards proposals if the
Company would accept the Union's last proposal on
management rights and unauthorized work stoppage, and
also withdraw its proposal on the scope of the agree-
ment.
The Company agreed to accept the Union's offer to
accept the Company's section 1 proposal of the griev-
ance procedure, but stated that the grievance procedure
would otherwise remain as proposed by the Company.
Allison stated that the Company had made its last offer
on management rights and unauthorized work stoppage.
Logan told Allison that the Company had "grabbed up
all the goodies" and otherwise "stood pat" on their posi-
tion, and unless the Company would rethink its position,
the Union would withdraw its proposals submitted as of
this date. In response to a question from the mediator,
Allison stated that management rights were not subject
to arbitration . The mediator asked Allison about unfair
labor practice strikes, and Logan stated the Union had
the right to engage in an unfair labor practice strike
under the law, and Allison replied it did not if it were
waived in the contract. In response to a statement by
Logan that the Company's position was that manage-
ment rights were not arbitrable, Allison responded,that
this was not so as the first sentence stated that manage-
ment rights was subject to the agreement. The next
meeting was held 13 December 1983, and at the begin-
ning of the meeting Logan announced that since the
Company had rejected the Union's proposals of 15 No-
vember 1983, that the Union was withdrawing these pro-
posals and was now proposing its proposals of 30 Sep-
tember 1983, except in the area of its management-rights
and no-strike clauses wherein the Union was reinstating
its proposal of 18 March 1983. The Company requested a
caucus, and on its return Allison stated the Company
would stand with their last offer, and that the Union had
taken a giant step backward in its negotiations.
The parties agreed to adjourn until the Union could
make arrangements for its attorney to represent them in
negotiations. The next meeting was held on 15 February
1984, at which time the Union was represented by its at-
torney Tim Edwards, and which was also attended by
the Federal mediator. At that meeting the definition of a
grievance was discussed at length with Edwards address=
ing inquiries to Allison who told Edwards that past prac-
tice, management rights, and wage levels were excluded
from the grievance procedure. Allison told Edwards that
the Company was attempting to get an express waiver of
sympathy strikes, and also that once the agreement was
signed, the employees cannot go on strike for any reason
whatsoever. Allison told Edwards the only aspect to be
arbitrated if an employee went on strike was the question
of participation, but that the severity of discipline im-
posed by the Company on the employee was not arbitra-
ble. Allison acknowledged that the Company was requir-
ing an express waiver of the employees' Section 7 rights
under its unauthorized work stoppage proposal.
Logan testified that two strike votes were taken. Ini-
tially on 2 August 1983, Logan held a meeting with the
employees and told them that it looked as if they were
not going to be able to obtain an agreement without a
strike, as the Company's management-rights proposal
would supersede the remainder of the contract; the Com-
pany's no-strike clause proposal would prevent a strike
for any reason whatsoever or honoring a picket line of
any kind; the Company's management-rights proposals
severely restricted what could be grieved; and the Com-
pany's inspection rights proposal barred private conver-
sations between union representatives and employees,
and required stewards to conduct union business on their
own time. He concluded that no self respecting union
would put their name on such a contract. The employees
voted unanimously to strike at that meeting.
Subsequently on 1 April 1984, Logan met with the em-
ployees again and informed them of the status of negotia-
tions and told them that the Company's language was
unreasonable and a strike was inevitable and reviewed
the Company's management-rights proposal again and
told the employees it would supersede the remainder of
the contract. He also reviewed what he had told them in
the 7 August 1983 meeting with regard to the Compa-
ny's unauthorized work stoppage 'proposal, and that if
they agreed to these proposals, the employees .would not
have a significant labor agreement. A voice vote was
REICHHOLD CHEMICALS
taken and the employees unanimously agreed to strike
that date , which they did. The strike lasted 6 days
'whereupon the Union offered the employees back to
work. to the employer unconditionally on 6 April 1984.
Union Business Agent Terrence E. Guffey testified
that he attended the 1 August 1983 meeting at which the
employees voted to strike and the 1 April 1984 meeting
at which Logan told the employees that the manage-
ment-rights clause proposed by Respondent would super-
sede ("take away") the other clauses in the contract.
Guffey also testified that Logan discussed all of the con-
tractual provisions on which the parties had not agreed,
including the unauthorized work stoppage clause, after
which a voice vote of the employees was taken and they
unanimously voted to strike . On 6 April 1984 Guffey of-
fered the striking employees back to work unconditional-
ly to Respondent 's plant manager Potts.
The testimony of Logan and Guffey concerning the
two strike vote meetings was essentially corroborated by
employees Stoker , Warnock, Reece, Smith , and Evans,
who testified concerning these meetings . Stoker recalled
that Logan discussed the management -rights clause, the
grievance and arbitration procedure , the no-strike clause,
and Respondent 's proposal that a management represent-
ative accompany union representatives during plant
visits. Stoker testified that at the 1 April 1984 meeting,
Logan reviewed the management -rights clause and the
grievance procedures and told the employees that no
self-respecting union would accept the Respondent's pro-
posals. Reece testified that Logan told the employees at
the 1 April meeting that the Respondent 's proposed man-
agement-rights clause was unreasonable . Smith testified
that Logan discussed the management -rights clause, the
no-strike clause, and several other clauses at the 1 April
meeting. Warnock testified that Logan discussed the
management rights and no-strike clauses and plant visits
at both meetings . Evans testified that Logan told the em-
ployees at the August 1983 meeting that the Respond-
ent's proposed management -rights clause would super-
sede the rest of the contract and also discussed the no-
strike clause , and that Logan told the employees at the 1
April meeting that the Respondent 's position was the
same and called for a strike vote.
The Respondent called 14 employees who either re-
turned to work during the course of the strike or were
recalled by Respondent after the strike, and who were
all currently employed by Respondent at the time of the
hearing. Most of these employees generally testified on
direct examination that at the strike vote meetings they
had attended in August 1983 and/or April 1984, Logan
discussed as the central strike issue the Union 's demand
that it be allowed to make plant visits without the ac-
companiment of management representatives , and also an
issue concerning stewards performing their union duties
while on paid working time . On cross-examination, some
of these employees acknowledged that Logan had dis-
cussed the Respondent's management-rights proposal and
no-strike clause while other employees could not recall
whether he had done so.
Respondent 's legal counsel and negotiator Herman Al-
lison testified that the Respondent was willing at all
times to bargain with the Union, attended all scheduled
647
meetings , exchanged proposals , and that the parties
reached agreement on many issues involving concessions
on both sides, but that the Union remained unwilling to
discuss the Respondent 's proposed management-rights
clause throughout the course of negotiations ; that Re-
spondent at no time told the union representatives that
any of its proposals or positions were final or that it was
unwilling to consider counterproposals , and that it was
prepared to meet and was awaiting contact from the
Federal mediator to set another meeting following the
February 1984 meeting, and was unaware of the strike
until it occurred on 1 April 1984; that following the
strike it commenced to hire permanent replacements for
the striking employees , but permitted those employees
who had not been replaced to return to work following
the end of the strike and placed the remaining strikers on
a preferential hiring list.
Allison testified as follows: On one occasion in June
1983, he requested that union business agent Guffey, who
was substituting for Logan , discuss Respondent's pro-
posed management -rights clause and Guffey responded,
"There ought to be something better to talk about than
that." At another bargaining session on 26 July 1983, he
offered to Business Manager Logan to go through Re-
spondent 's management-rights clause point-by-point and
told him everything was open to discussion , but was un-
successful in getting Logan to discuss it, except that
Logan listed the items of the management-rights propos-
al the Union did not agree with, and that he (Allison)
asked Logan whether he (Logan) had any proposal for
resolving the management-rights clause or any part of it
and that Logan responded, "Not at this time " Logan
would not tell Allison what problems he had with Re-
spondent's management-rights proposal or its unauthor-
ized work stoppage clause. The parties also disagreed on
the definition of a grievance.
At the July meeting , Logan continued to object to
management's proposal that union representatives be ac-
companied through the plant by management representa-
tives. During the course of negotiations , the parties re-
moved several items from other articles and placed them
into Respondent's management-rights proposal to obtain
agreement on the other articles. At a negotiation meeting
on 15 September 1983, Logan told Allison that "We are
all in on Grievance and Arbitration," as he Logan saw
no significant movement that could be made and then
suggested the parties discuss management rights, and
then listed six items of the Respondent 's proposed man-
agement-rights clause as strike issues, and then designat-
ed several strike issues in Respondent's unauthorized
work stoppage clause . Logan then told Allison that there
were other items in these two clauses which were also
strike issues , but which the Union was willing to discuss.
The parties never discussed in detail any of the six items
designated as strike issues in Respondent 's management-
rights proposal or any of the six items designated as
strike issues in Respondent 's unauthorized work stoppage
proposals.
The six designated strike issues in the management-
rights clause were: (1) "the unqualified right to place any
or all of such rights into effect without notice to, or ne-
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gotiations with, the union"; (2) "the right to determine
from time to time which jobs shall be paid on piece,
hourly, piece incentive, or bonus rate, including the right
to formulate and institute such systems unilaterally and
without notice to any party"; (3) "the right to determine
. .. or other tests for the security of the employees,
plant premises, or property of the Company's"; (4) "the
right to determine whether to use employees full-time or
part-time"; (5) "the right to establish, revise, or discon-
tinue policies, practices, procedures, rules and regulations
for the conduct of business, and from time to time to
change, amend, modify, or abolish such policies,'prac-
tices, rules and regulations subject to the provisions of
this agreement"; (6) "It is hereby agreed that the re-
served management rights as set forth herein, or else-
where in this Agreement, shall not be subject to the
grievance and arbitration provisions of this Agreement
nor shall they be subject to impairment by an arbitration
award under this Agreement." The six designated strike
issues in the Respondent's unauthorized work stoppage
proposal were: (1) the prohibition against sympathy
strikes; (2) the prohibition against "including any manner
of stoppage not herein specified or anticipated by the
parties. Failure or refusal on the part of any employee to
comply with any provision of this Article shall be cause
for whatever disciplinary action, including suspension or
discharge, against whatever number of employees is
deemed necessary by the Company. In administering
such discipline, the Company may distinguish between
leaders and other participants in the unauthorized work
stoppage, strike, slowdown, or other interference with
production."; (3) following a requirement in the clause
that the Union use all efforts at its disposal to return
striking employees to work and enforce all penalties pro-
vided for in its constitution and "the failure of the Union
to so act, after due notice given by the Company, shall
be construed to mean that the Union sanctioned or con-
doned the action of the employees involved. Such com-
munication shall be communicated by the Company as it
deems appropriate."; (4) "Neither the violation of any
provision of this Agreement nor the commission of any
act constituting an unfair labor practice or otherwise
made unlawful by any federal, state, or local law shall
excuse the employees, the Union, or the Company from
their obligations under the provisions of this Agree-
ment."; (5) "It is expressly understood and agreed that an
employee covered by this Agreement shall not withhold
their services from the Company in connection with any
labor dispute, whether or not at the Employer's prem-
ises, and it is agreed that the Union will not authorize or
condone the action of any employee in so withholding
their services, including cases where the performance of
such services may require that the employees cross and
work behind picket lines established by this or other
local unions or other labor organizations at any place, in-
cluding a customer's place of business. There shall be no
refusal to work on, handle, or produce any materials or
equipment because of a labor dispute affecting this Com-
pany, a vendor purchaser, supplier, or carrier of said ma-
terials or equipment."; (6) "It is further agreed that if
such prohibited activity occurs the Company shall have
the unrestricted right to replace any and all such partici-
pants and they shall have no further rights under this
Agreement and no action in law or equity or before any
administrative agency, including the National Labor Re-
lations Board. This right to replace employees engaging
in misconduct prohibited by this Article shall be in addi-
tion to other disciplinary action, as deemed appropriate
by the Company, provided for in this Article."
At the hearing Allison contended that the designated
strike issue number 6 in Respondent's unauthorized work
stoppage proposal was a "throw away," that he inserted
to trade off by giving it up in order to bargain for some-
thing else in another clause. Allison testified that Logan
also listed check off, inspection rights, and stewards as
strike issues, but contended that the only area of dis-
agreement with respect to stewards was whether they
would be paid, and that the only disagreement on inspec-
tion rights was whether union representatives must be
accompanied by members of management when they
made plant tours, and that the Respondent had already
indicated to the Union that it would agree to check off,
but wanted to discuss it under economic issues and to
obtain something in return for it. Allison testified further
that on 30 September 1983 Logan gave Respondent a
counterproposal as a package on noneconomic matters
and told Respondent that it had to be accepted in total
and could not be accepted in part only. This package in-
cluded a typed counterproposal on management rights
and on unauthorized work stoppages. Allison told Logan
Respondent would need to review the counterproposal
and to reconvene to consider it, and the parties met
again on 13 October 1983, at which time Respondent of-
fered a counterproposal to the Union's proposal of 30
September 1983, and told the Union that it was not a
package offer and the Union could select items of agree-
ment if it chose. According to the testimony of Allison,
he inquired whether Logan would agree to insert "lead-
ership ability" in the requirements for the quality control
shift leader position if the Respondent agreed to all of
the outstanding issues and Logan stated he would not do
so.3 Allison also withdrew the Respondent's most favor-
able provisions clause. Logan proposed that the parties
adjourn for the day and that Respondent give him its po-
sition the next day. The parties met the next morning
and Allison told Logan that the Respondent could not
move further at this time because of the Union's insist-
ence that Respondent accept the Union's package pro-
posal in its entirety or not at all, but that Respondent
was willing to consider any changes or revisions the
Union would advance, and that the Union was free to
pick and choose among the proposals offered by Re-
spondent. The Union requested a break, and on its return
Logan stated, "Herman [Allison], I reckon we are
there," and after further conversation stated, "Reluctant-
ly, we must take action." Allison then told Logan that in
the event of a strike the Respondent would continue to
operate the plant with replacements if necessary to do
so, and would permit the employees to continue their
group insurance if they came in and made arrangements
3 Logan was recalled on rebuttal by the General Counsel and denied
that Allison had made such an offer.
REICHHOLD CHEMICALS 649
to do so, and that Respondent expected any picket line
to be peaceful . Logan requested Respondent to contact
him if there was a change in its position and stated he
would do the same.
Allison testified further that on 15 November 1983, at
the Union's request , the parties met with a Federal medi-
ator, Maurice Tipple. At Allison's request, Logan went
over several outstanding items and proposed changes on
some of them. The Respondent caucused and on its
return told Logan his proposals were not significant, but
that Respondent would go through them and did so at
this meeting , and Respondent agreed to some of the
Union's proposed changes, including the Union's agree-
ment to accept the Respondent 's definition of a griev-
ance. Allison told Logan that with respect to manage-
ment rights that Respondent 's "position at this point in
time was as stated in our last offer," but denied that he
had told Logan that the Respondent had made its last
offer on management rights and unauthorized work stop-
page. The last offer of Respondent referred to by Allison
was its written proposal of 13 October 1983. After Alli-
son had gone through all of these provisions, the Union
caucused and on its return stated that Respondent "had
gobbled up all the goodies and stuck to [its] position."
The parties' representatives Logan and Allison then met
with the mediator and agreed to another meeting which
was ultimately scheduled for 13 December 1983. Allison
contends that after the meeting ; the parties were in agree-
ment with respect to management rights and in substan-
tial agreement on the unauthorized work stoppage
clause. At the meeting of 13 December 1983, Logan
stated that since Respondent had rejected his last propos-
al that he was withdrawing all of the Union's proposals
at the last meeting and was returning to the Union's pro-
posals of 30 September 1983, except with respect to man-
agement rights and unauthorized work stoppage , with re-
spect to both of which the Union was returning to its ini-
tial proposal of 18 March 1983. Respondent caucused
and on its return Allison told Logan that he was upset as
he had thought they were close to agreement and that
the Union had taken a giant step backward in their nego-
tiations . Logan suggested he bring in the Union's attor-
ney Tim Edwards, and Allison agreed.
The parties next met on 15 February 1984, with Ed-
wards speaking on behalf of the Union. Edwards com-
menced by asking Allison questions as to what was cov-
ered in the grievance procedure and what was excluded.
Allison told him management rights was excluded from
the grievance procedure . Edwards also inquired whether
Allison was attempting to obtain an express waiver of
sympathy strikes to which Allison replied in the affirma-
tive. Questioning by Edwards centered primarily on
what was covered under the grievance and arbitration
procedure . The meeting broke up with Respondent walk-
ing out in protest over Edwards' method of questioning
Allison. When the parties returned , Edwards told Allison
that the unauthorized work stoppage clause was not
agreeable, and he believed that another paragraph of the
Respondent' s proposal on unauthorized work stoppages
was not legal . At the suggestion of the mediator, the par-
ties adjourned . Allison subsequently received a call from
the mediator asking whether he would be willing to meet
in March, and agreed to do so but had no further contact
from the mediator . Management rights had never been
discussed.
The Union 's proposal of 30 September 1983, regarding
management rights was almost identical to the Respond-
ent's proposal with the exception of Respondent's pro-
posal that management rights were not subject to the
grievance procedure , and the Union 's 30 September 1983
unauthorized work stoppage clause was considerably
more restrictive than its 18 March proposals . On cross-
examination , Allison acknowledged that he at no time
advised the Union that there were any throwaways in
Respondent 's unauthorized work stoppage proposal.
Analysis
1. The surface bargaining allegation
The General Counsel contends that Respondent en-
gaged in surface bargaining in violation of Section 8(a)(5)
and (1) of the Act in this case by insisting on a broad
management-rights clause and a restrictive grievance
procedure and unauthorized work stoppage clause as the
broad management-rights clause retained in Respondent
control over every facet of the employment relationship
permitting management to change these terms and condi-
tions of employment at will , and that this , along with the
restrictive grievance procedure which precluded the as-
sertion of anything arguably a management right as a
grievance and the restrictive unauthori zed work stop-
page clause which prohibited the employees from engag-
ing in a strike of any kind including an unfair labor prac-
tice strike or a Section 502 strike protesting hazardous
conditions (which would be particularly applicable in the
case of a chemical manufacturing operation such as Re-
spondent has), which precluded access to the National
Labor Relations Board or any other governmental
agency, all combined to render the labor agreement a
nullity. The General Counsel relies on NLRB v. Herman
Sausage Co., 275 F.2d 229, 231 (5th Cir. 1960), wherein
the Board and court looked to the substantive positions
taken by the employer in bargaining to determine wheth-
er the employer had made a good -faith effort to bargain,
and concluded it had not. As in the instant case, the em-
ployer had engaged in bargaining over a long period of
time, exchanged proposals , and made concessions, but
the court held in Herman Sausage, supra , that these ac-
tions by the employer could be the method by which the
employer could conceal its strategy to make bargaining
futile. The General Counsel also relies on A-I Icing Size
Sandwiches , 265 NLRB 850 ( 1982), a case it asserts is fac-
tually very similar to the instant case and in which case
the Board found that the employer 's state of mind was
inconsistent with a willingness to reach agreement in
view of its insistence on its management-rights, no strike,
and nondiscrimination and wage proposals "retaining to
itself total control over virtually every significant aspect,
of the employment relationship ." In A-I King Size Sand-
wiches, supra , the employer also had proposed restrictive
grievance and no strike clauses as in the instant case. The
General Counsel also relies on the statements of Re-
spondent's supervisors to certain of the employees as
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found supra to the effect that Respondent would not
agree to a contract, and that adverse consequences
would occur if the employees went on strike. The Gen-
eral Counsel also points to the conduct of Respondent's
chief negotiator Allison as evidence of Respondent's lack
of good faith in bargaining for a labor agreement, par-
ticularly his manner of testifying at the hearing in this
case, and his assertion at the hearing that a portion of its
unauthorized work stoppage proposal was merely a bar-
gaining chip to be thrown away as the parties came
closer to agreement, but which proposal was never with-
drawn by Respondent even after the onset of the strike,
as well as Allison's alleged refusal to answer the ques-
tions of the Union's attorney Edwards in a meaningful
way concerning what types of matters could be grieved,
and his assertion at the trial that the Union refused to
discuss the Respondent's management-rights proposal
which was denied by Union Business Manager Logan.
The Respondent contends that the record is devoid of
any evidence of dilatory tactics on the part of Respond-
ent, but rather shows that Respondent met at all reasona-
ble times, exchanged proposals, and reached agreement
with the Union on a number of contract clauses whereas
the Union's chief negotiator Logan was absent on several
occasions and that the other union representatives, who
substituted for him on those occasions, were unprepared
to engage in meaningful contract discussions, and further
that the Union was unable or unwilling to discuss the
Respondent's management-rights proposal during the
entire course of bargaining notwithstanding repeated at-
tempts by Allison to persuade them to discuss Respond-
ent's proposals or to offer counterproposals to resolve
the differences between the parties. Respondent particu-
larly relies on Logan's withdrawal of the Union's 30 Sep-
tember 1983 proposals as evidence of its own lack of
good faith in bargaining. The Respondent relies on
NLRB v. American National Insurance Co., 343 U.S. 395
(1952), wherein the parties were "deadlocked on a man-
agement-function clause and the Court held that such a
clause was not evidence of bad faith" and concluded the
parties' "inability to reach agreement was due to the
Union's unyielding position in opposing the management-
function clause." Respondent also relies on Chevron
Chemical Co., 261 NLRB 44 (1982), for the proposition
that an employer's proposal of a strong management-
rights clause and no-strike clause in conjunction with a
limited arbitration clause may be merely evidence of
lawful hard bargaining rather than unlawful surface bar-
gaining by the employer. Respondent also relies on Gulf
States Mfrs., 579 F.2d 1298 (5th Cir. 1978), wherein the
court reviewed the Board's finding of bad-faith bargain-
ing against the employer and held that if any party were
guilty of bad-faith bargaining it was the Union as a result
of its recalcitrance in bargaining as contrasted with the
employer's willingness to meet and bargain, the employ-
er's lack of dilatory tactics , and its assumption of "the
bulk of the responsibility for preparing proposals and
writing up agreements." The Respondent also relies on
NLRB v. Tomco Communications, 567 F.2d 871 (9th Cir.
1978), wherein the court reversed the Board's finding of
surface bargaining by the employer in that case and re-
jected as vague the Board's use of the phrase "terms
which no self respecting union could be expected to
accept" in the Board's finding that the employer's final
offer was evidence of bad faith.
In the instant case I conclude that Respondent did,
through its chief negotiator Allison, assert that it had to
have a broad management-rights clause, a restrictive
grievance definition, and a restrictive unauthorized work
stoppage clause, the combination and net effect of which,
if it were successful in obtaining these clauses as set out,
would have been to retain complete control in manage-
ment over the terms and conditions of employment of its
employees, and would have rendered the labor agree-
ment as meaningless in view of management's unrestrict-
ed right to change the terms and conditions of employ-
ment at management's whim, and would have rendered
the Union as totally ineffective in representing the em-
ployees.
After a review of all the testimony I am convinced
(notwithstanding Allison's testimony at the hearing that
these clauses were open to negotiation) that these clauses
were presented to the Union as a fait accompli as what
management had to have in order to reach agreement
(elicited management rights which were not subject to
the grievance procedure and complete waiver of all of
the employees' Sec. 7 rights). I do not credit Allison's as-
sertion at the hearing that the waiver of statutory rights
contained in the unauthorized work stoppage clause was
a mere bargaining chip or throwaway. I find implausible
that Allison would not have withdrawn this provision if
it were in fact a mere bargaining chip. I find that the
proposals in combination made by Respondent were un-
reasonable and impeded any prospects for reaching
agreement. I also find that the Union sufficiently detailed
its opposition to these clauses and that Respondent was
well aware of this opposition, but took no steps to re-
solve them. I do not credit Allison's testimony that on 30
September 1984 he offered to settle all outstanding issues
if the Union would agree to the insertion of "leadership
ability" as a qualification for the quality control shift
leader position. I find this implausible in view of Re-
spondent's insistence on these proposals over the ex-
tended period of negotiations and credit Logan's testimo-
ny that Allison did not make such an offer.
I also find that Respondent persisted in its position
throughout negotiations that it had to have the control
set out in its management-rights, unauthorized work
stoppage, and grievance definition proposals, and that
Allison was well aware that these were the major im-
pediments to agreement between the parties. I reject Re-
spondent's assertion that the stumbling block to agree-
ment was the Union's failure to negotiate and discuss the
issues, particularly the management-rights clause. It is
clear that Logan advised Allison what the items of dis-
pute were with respect to his proposals, and that Allison
took no significant actions to resolve the disputes, or
made no significant concessions with respect to them.
However, it is undisputed that Respondent was prepared
to and did meet with the Union at agreed-on times, and
that there was no evidence of a refusal of Respondent to
furnish information, and there was no evidence it other-
wise engaged in any technical violations concerning the
REICHHOLD CHEMICALS
mechanics of the negotiations. Rather, it appears that Re-
spondent was somewhat more diligent in attending meet-
ings prepared to discuss matters than was the Union, al-
though I do not find that the Union was dilatory in bar-
gaining.
I find that the Board law set out in Herman Sausage,
supra, and A-I King Size, supra, is applicable here. I find
that Respondent engaged in surface bargaining in viola-
tion of Section 8(a)(5) and (1) of the Act by its insistence
on the combination of its broad management-rights
clause, its restrictive unauthorized work stoppage clause,
and its restrictive definition of a grievance, which was
inconsistent with a sincere desire to reach an agreement.
I do not find that the Union's withdrawal of its package
proposal was evidence of its bad faith in negotiating an
agreement, but I find it was the result of the frustration
of the Union in its unsuccessful efforts to reach an agree-
ment, and Respondent's unwillingness to make any mean-
ingful changes in its proposals of which it had been ap-
prised by the Union were strike issues.
I also have considered the violation of Section 8(a)(1)
found herein which occurred in the 10(b) period and
which in my view was indicative of Respondent's intent
to frustrate the collective-bargaining process in this
regard, and the various other instances of Respondent's
intent to frustrate agreement which were found by me as
set out above. In making the determination that Re-
spondent engaged in surface bargaining, I have also con-
sidered the Respondent's insistence to impasse on the
waiver of the employees' statutory rights, a nonpermis-
sive subject of bargaining, as found infra in this decision.
I have also considered Allison's assertion at the hearing
that Respondent's proposal that the employees statutory
rights be waived was merely a bargaining chip on which
he did not intend to insist. As found above, I did not
credit this assertion . Thus, I Find that the totality of the
evidence in this case supports a finding that Respondent
engaged in surface bargaining in violation of Section
8(a)(5) and (1) of the Act.
I have also considered the Board's recent decision in
Rescar, Inc., 274 NLRB 1 (1985), wherein the Board in
reliance on NLRB Y. American National Insurance Co.,
343 U.S. 395, 407-408 (1952), stated:
Moreover, it is not the Board's role to sit in judg-
ment of the substantive terms of bargaining but
rather to oversee the process to ascertain that the
parties are making a sincere effort to reach agree-
ment.
In the Rescar case, the Board disagreed with the ad-
ministrative law judge's conclusion that the employer
had tied together broad management-rights and no-strike
clauses inflexibly with a severely limited grievance arbi-
tration provision, but rather found that two of the
clauses had been agreed on early in negotiations while
the third clause remained a matter of dispute at the time
of the cessation of bargaining. Additionally, the Board in
the Rescar case did not rely on a statement by the em-
ployer's vice president that the employer would not sign
a contract noting that the statement had occurred prior
651
to a presettlement agreement and outside the 10(b)
period
In the instant case, unlike the Rescar case, all three
contract clauses (the broad management-rights clause,
the unauthorized work stoppage clause, and the restric-
tive grievance procedure) were tied together, and Re-
spondent insisted on them without substantial change
throughout the course of bargaining to the point of im-
passe up to and including the 1 April strike and beyond.
Moreover, in the instant case, the 8(a)(1) violation found
(wherein Supervisor Henry told two employees that the
employer would not sign a contract and that they would
be replaced if the employees went on strike) occurred
within the 10(b) period, as did certain of the other state-
ments to the same effect by others of Respondent's su-
pervisors. Although the General Counsel's witnesses
were unable to place the dates of these conversations,
their testimony clearly established that certain of these
instances occurred within the 10(b) period. Moreover,
unlike the Rescar case, Respondent in this case insisted
on the waiver of the employees' statutory rights which I
have found is further evidence of its intent to frustrate
the collective-bargaining process. I note also with the ne-
gotiations involved in the instant case, an initial agree-
ment between the parties may be more difficult to
achieve than an amendment to a preexisting agreement.
However, I find that Respondent 's stance throughout
bargaining was that it had to have an agreement that
would give it total control, and that it essentially main-
tained this inflexible position with respect to the manage-
ment-rights clause, the unauthorized work stoppage
clause, and the restrictive grievance procedure, and that
it followed through on the threat of its supervisors and
of Allison that it would replace the employees in the
event of a strike.
I find also that Chevron Chemical Co., supra, relied on
by Respondent, is distinguishable from the instant case.
In the Chevron case, the Board found that the employer
had not engaged in bad faith or surface bargaining by in-
sisting on its management -rights, no-strike, and arbitra-
tion proposals. In that case, the Board cited NLRB v.
American National Insurance Co., supra:
[T]he Board has been afforded flexibility to deter-
mine . . . whether a party's conduct at the bargain-
ing table evidences a real desire to come into agree-
ment . . . and specifically we do not mean to ques-
tion in any way the Board's powers to determine
the latter question , drawing inferences from the
conduct of the parties as a whole.
In the Chevron case, unlike the instant case, the Board
specifically found a lack of other evidence which would
support a finding of bad faith, stating at 47:
Finally, no other unfair labor practices are involved
here, and the record reflects no conduct by Re-
spondent away from the bargaining table which
would suggest that its negotiating positions were
taken in bad faith.
652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I conclude and find that Respondent en-
gaged in surface bargaining in violation of Section 8(a)(5)
and (1) of the Act.
2. The alleged insistence to impasse on
nonmandatory subjects of bargaining
The General Counsel also contends that Respondent
violated Section 8(a)(5) and (1) of the Act by its insist-
ence to impasse on nonmandatory subjects of bargaining
in the unauthorized work stoppage proposal, specifically
by its insistence to impasse on its proposal that the Union
and employees waive their statutory rights to engage in
unfair labor practice strikes and of access to the Board
and other governmental agencies and the courts. The
waiver of statutory rights in futuro as was proposed by
Respondent in this case is a nonpermissive subject of bar-
gaining in conflict with public policy and insistence to
impasse thereon violated Section 8(a)(5) and (1) of the
Act. See American Cyanamid Co., 235 NLRB 1316, 1324,
1325 (1978), enfd. 592 F.2d 356 (7th Cir. 1979). I find
that the parties were at an impasse concerning this clause
on 15 November 1983, under either Logan's or Allison's
version of that meeting. This impasse continued into
February 1984, up to and including the 1 April 1984
strike by the employees.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act by insisting to impasse on a
nonpermissive subject of bargaining.
E. The Alleged 8(a)(3) Violations
I find that the evidence supports a finding that the
strike was an unfair labor practice strike in protest of Re-
spondent's unfair labor practices as found herein. Al-
though other issues (such as the inspection right dispute
and stewards' pay dispute) were undoubtedly on the
table and discussed at the strike vote meeting, the pri-
mary focus of the strike was to protest Respondent's in-
flexible stand at the bargaining table concerning its man-
agement-rights, grievance, and no-strike proposals, in-
cluding its proposal that the employees waive their statu-
tory rights.
It is undisputed that, subsequent to the initiation of the
strike by the employees, the Respondent commenced to
hire permanent replacements. When the employees
learned of this and after the Union's business manager
Logan learned that employees of another of Respond-
ent's facilities would not support these employees in their
strike, the Union's representative offered each of the
striking employees back to work unconditionally and
each employee did so individually. At that point the Re-
spondent ceased to hire permanent replacements and
shortly thereafter recalled and allowed to return to work
a number of employees who had not yet been perma-
nently replaced. It, however, refused to allow the re-
mainder of its striking employees to return to work con-
tending they had been permanently replaced. As of the
date of the hearing, 27 of the striking employees had not
been allowed to return to work notwithstanding their un-
conditional offer to do so.
As I have found that the Respondent violated Section
8(a)(5) of the Act by engaging in surface bargaining and
by its insistence to impasse on a nonpermissive subject of
bargaining, I conclude that the strike was an unfair labor
practice strike. It is well established that employers may
not permanently replace employees engaged in an unfair
labor practice strike as the Respondent did here. I ac-
cordingly find that Respondent violated Section 8(a)(3)
of the Act by permanently replacing its striking employ-
ees.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The unfair labor practices of Respondent as found
herein have an effect upon commerce within the mean-
ing of Section 2(6) and (7) of the Act.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. The Union is the certified bargaining representative
for the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its Kensington, Georgia
facility, including lab technicians, but excluding all
office clerical employees, professional employees,
technical employees, guards and supervisors as de-
fined in the Act.
4. Respondent violated Section 8(a)(1) of the Act by
the threat of discharge, and the futility of bargaining for
a labor agreement with the employer issued to its em-
ployees by Respondent's supervisor.
5. Respondent bargained in bad faith in violation of
Section 8(a)(5) and (1) of the Act by engaging in surface
bargaining and by insisting to impasse on the waiver of
the employees' statutory rights.
6. Respondent violated Section 8(a)(3) and (1) of the
Act by permanently replacing its employees who were
engaged in an unfair labor practice strike against Re-
spondent.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take the following affirmative
actions designed to effectuate the policies of the Act.
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by engaging in surface bargaining and
by insisting to impasse on a waiver of the employees'
statutory rights, I shall recommend that Respondent, on
request, bargain with the Union as the exclusive repre-
sentative of the employees in the appropriate unit con-
cerning terms and conditions of employment and, if an
understanding is reached, embody the understanding in a
signed agreement.
Having found that Respondent failed and refused on 6
April 1984, on their unconditional request to return to
work, to reinstate its striking employees, I shall recom-
REICHHOLD CHEMICALS
mend that Respondent be ordered to offer to all striking
employees immediate and full reinstatement to their
former positions and make them whole for any loss of
earnings or benefits suffered as a result of Respondent's
refusal to honor their unconditional request to return to
work, with interest thereon, to be computed in the
manner prescribed in F. W. Woolworth Co., 90 NLRB
289 (1950). Interest thereon shall be computed as set
forth in Florida Steel Corp., 231 NLRB 651 (1977). See
generally Isis Plumbing Co., 138 NLRB 716 (1962).
[Recommended Order omitted from publication.]
APPENDIX A
Respondent's Original Management Rights Proposal
of February 24, 1983
Joint Exhibit 1
ARTICLE - MANAGEMENT RIGHTS
This Agreement is not intended to interfere with,
abridge or limit the Company's right to manage its plant.
In order to operate its business and except as expressly
and specifically limited or restricted by a provision of
this Agreement, the Company reserves and retains in
full, exclusively and completely, any and all management
rights, prerogatives, and privileges previously vested in
or exercised by the Company, and the unqualified right
to place any or all of such rights into effect without
notice to, or negotiations with, the Union. These rights
include, but are not limited to: the right to plan, direct,
control, increase, or decrease the operations; the right to
determine whether the operations or any part thereof
continues; the right to establish new jobs and job classifi-
cations and to abolish, combine, or change existing jobs,
classifications and their requirements; the right to estab-
lish the rates of pay for new job classifications; the right
to determine from time to time which jobs shall be paid
on piece, hourly piece incentive or bonus rate, including
the right to formulate and institute such systems unilater-
ally and without notice to any party; the right to deter-
mine the price of its product or services, the sales meth-
ods, the volumes of sales and the methods of production
and financing; the right to determine the products to be
manufactured, sold or handled and the services to be
rendered including their quantity and quality; the right
to shift products in and our of the plant; the right to, in
its discretion, schedule and assign or reassign work duties
for regular and overtime work and to establish reasona-
ble standards in accordance with its determination of the
needs of the jobs and the operation; the right to increase
or decrease the number of jobs, employees, shifts, and/or
the number of working hours per day or per week; the
right to determine shift schedules and change such
scheduling; the right to have its work or any portion
thereof including repairs and/or maintenance done by
any person, firm or corporation; the right to establish,
modify, rescind, or change and the right to enforce
safety rules for the orderly conduct of plant operations,
including the right to impose discipline, up to and includ-
ing discharge, for violation thereof; the right to deter-
mine the need for and administration of physical exami-
653
nations, mental tests, or other tests for the security of the
employees, plant premises, or property of the Company;
the right to determine the qualifications for, and make
the selection of, its managerial and supervisory forces;
the right to purchase products, materials and parts from
any source including the right to determine the purchase
price of all such purchases; the right to determine wheth-
er to use employees full time or part time; the right to
change materials, processes, methods, products, tech-
niques and/or machines, equipment and operations and
to discontinue or introduce new materials, processes,
methods, techniques and/or machines, equipment and
products; the right to determine the selection, retention,
or substitution of any vending service; the right to deter-
mine the method of funding each Company benefit in-
cluding the identity and selection of the carrier or trust-
ee. The Company shall be the sole judge of applicants
for employment as well as employee qualifications, phys-
ical fitness and the skills required for each job classifica-
tion and the qualifications and standards necessary for
any of the jobs it may have or may create in the future
and whether such standards necessary for any of the jobs
it may have or may create in the future and whether
such standards and levels are being met; the Company
shall determine the number of employees it shall employ
at any one time, the number assigned to any particular
function, division, or assigned area, the policies affecting
the selection and training of new employees, and the
right to establish, revise or discontinue policies, prac-
tices, procedures, rules and regulations for the conduct
of business, and from time to time to change, amend,
modify or abolish such policies, practices, rules and regu-
lations. Subject to the provisions of this Agreement, the
Company shall have the right to determine when over-
time shall be worked and to require employees to work
overtime; the right to transfer employees from job to
job, work station to work station, and shift to shift, and
to change, add to or reduce the number of employees,
shift and work schedules; the right to determine whether,
when and where there is a job opening; the right to sepa-
rate probationary employees without recourse to any
provision of this Agreement; the right, in its sole discre-
tion, to hire or rehire employees, transfer, or layoff em-
ployees because of lack of work or other legitimate
reason, and recall employees who are laid off; demote,
promote, suspend, discipline or discharge for any cause
not in violation of this Agreement. The rights of man-
agement will not be used to discriminate against any em-
ployee because of their membership in the Union.
It is expressly understood and agreed that all rights
heretofore exercised by the Company or inherent in the
Company as the owner and operator of the business, or
as an incident to the managemenet thereof, not expressly
contracted away by a specific provision of this Agree-
ment are retained solely by the Company. Any rights
granted to or acquire by the employees or the Union
under this Agreement or during its life shall have no ap-
plication beyond the terms of this Agreement or any re-
newal thereof.
The failure of the Company to exercise any power,
function, authority, or right reserved or retained by it, or
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of any power, function, authority, or right in
a particular manner shall not be deemed a waiver of the
right of the Company to exercise such power, function,
authority, or right, or to preclude the Company from ex-
ercising the same in some other manner, so long as it
does not conflict with an express provision of this Agree-
ment.
The Company has and shall retain the right to move,
sell, close, liquidate, or consolidate the plant in whole or
in part, and to separate its employees in connection with
said moving, selling, closing, or liquidating of the plant
or any portion thereof; however, in the event the Com-
pany decides to do so, it will negotiate with the Union
concerning the effects thereof upon the employees. It is
fully understood and agreed that the decision to move,
sell, close, or liquidate shall rest solely with the Compa-
ny and its obligation shall be limited to advising concern-
ing such decision and negotiating concerning the effects
thereof on the employees.
It is agreed that the reserved management rights as set
forth herein, or elsewhere in this Agreement, shall not be
subject to the grievance and arbitration provision of this
Agreement nor shall they be subject to impairment by an
arbitration award under this Agreement
It is further agreed that the Company shall have the
unrestricted right to determine where production shall be
performed and may, notwithstanding this Agreement or
any provision herein, transfer work to or from the loca-
tion covered by this Agreement to or from any other lo-
cation, as it may deem necessary or appropriate, at any
time
APPENDIX B
Respondent's Original Unauthorized Work
Stoppage Proposal of February 24, 1983
Joint Exhibit 1
ARTICLE- UNAUTHORIZED WORK
STOPPAGE
For the duration of this Agreement, the Union, its offi-
cers, representatives, members and the employees cov-
ered by this Agreement, shall not authorize, instigate,
cause, aid,, encourage, ratify or condone, nor shall any of
the aforementioned parties take part in any strike, slow-
down, work stoppage, boycott, picketing, sympathy
strike, blockage of ingress or egress at the Company's
premises, or other interruption or interference of a like
or similar nature with the work of the Company includ-
ing any manner of stoppage not herein specified or an-
ticipated by the parties Failure or refusal on the part of
any employee to comply with any provision of this Arti-
cle shall be cause for whatever disciplinary action, in-
cluding suspension or discharge, against whatever
number of employees is deemed necessary by the Com-
pany. In administering such discipline, the Company may
distinguish between leaders and other participants in the
unauthorized work stoppage, strike, slowdown, or other
interference with production
It is agreed that in the event of a work stoppage, pick-
eting, or other curtailment of any nature unauthorized by
the Union shall, upon receiving notice thereof, immedi-
ately send a telegram to its steward or other representa-
tive at the plant, with a copy to the Company, ordering
those employees engaged in such illegal activity to
return to work and immediately cease the violation. The
Union further agrees to use all efforts at its disposal and
within its power to see that they do so including the im-
position of any and all penalties provided for in the
Union's constitution The failure of the Union to so act,
after due notice given by the Company, shall be con-
strued to mean that the Union sanctioned or condoned
the action of the employees involved. Such communica-
tions shall be communicated by the Company as it deems
appropriate. The Union further agrees that the work will
proceed as ordered and that any complaints as to man-
agement's orders shall be handled through the Grievance
Procedure; and thaT, a refusal to perform work ordered
by management shall be considered a violation of this
Agreement.
In consideration of this "No Strike" pledge by the
Union and employees, the Company shall not lock out
employees for the duration of this Agreement provided,
however, this Agreement should not be construed as re-
quiring the Company to stay in continuous operation
contrary to its rights contained in the Management's
Rights clause of this Agreement. Neither the violation of
any provision of this Agreement nor the commission of
any act constituting an unfair labor practice or otherwise
made unlawful by any federal, state or local law shall
excuse the employees, the Union or the Company from
their obligations under the provision of this Agreement.
The Union agrees that for the full term of this Agree-
ment, and any renewal or extension thereof, it will at all
times cooperate fully with the Company in maintaining
full production.
It is expressly understood and agreed that an employee
covered by this Agreement may not withhold their serv-
ices from the Company in connection with any labor dis-
pute, whether or not at the Employer's premises, and it
is agreed that the Union will not authorize or condone
the action of any employee in so withholding their serv-
ices, including cases where the performance of such
services may require that the employees cross and work
behind picket lines established by this or other local
unions or other labor organizations at any place, in-
cludng a customer's place of business. There shall be no
refusal to work on, handle, or produce any materials or
equipment because of a labor dispute affecting this Com-
pany, a vendor, purchaser, supplier or carrier of said ma-
terials or equipment
The Company shall have the sole and complete right
to immediately discharge any employee participating in
any unauthorized strike, slowdown, walk-out or any
other cessation of work and such employee or employees
shall not be entitled to nor have any recourse to any
other provision of this Agreement, including the Griev-
ance and Arbitration provision.
In the event of misconduct prohibited by this Article,
neither party shall meet or discuss the merits of the dis-
pute until such time as the illegal action is terminated. It
is further agreed that if such prohibited activity occurs
REICHHOLD CHEMICALS
the Company shall have the unrestricted right to replace
any and all such participants and they shall have no fur-
ther rights under this Agreement and no action in law or
equity or before any administrative agency, including the
National Labor Relations Board. This right to replace
employees engaging in misconduct prohibited by this Ar-
ticle shall be in addition to other disciplinary action, as
deemed appropriate by the Company, provided for in
this Article.
APPENDIX C
Respondent's Original Grievance Procedure and
Arbitration Proposal of February 24, 1983
Joint Exhibit 1
ARTICLE-GRIEVANCE PROCEDURE AND
ARBITRATION
Section 1. Grievance Procedure
(a) A grievance is a complaint wherein it is alleged
that the Company has failed to abide by the terms of this
Agreement . It is specifically understood and agreed that
no dispute shall be considered subject to the grievance
procedure if the matter grieved about is not specifically
covered by this Agreement.
Should any employee feel that he is aggrieved by an
order of management or his supervision , it is understood
and agreed the employee shall first obey such order or
direction prior to having any recourse to the Grievance
Procedure as set forth herein.
APPENDIX D
Respondent's Management Rights Proposal of
October 13, 1983
General Counsel's Exhibit 7
ARTICLE-MANAGEMENT RIGHTS
This Agreement is not intended to interfere with,
abridge or limit the Company's right to manage its plant.
In order to operate its business and except as expressly
and specifically limited or restricted by a provision of
this Agreement, the Company reserves and retains in
full, exclusively and completely, any and all manage-
ment's rights, prerogatives, and privileges previously
vested in or exercised by the Company, and the unquali-
fied right to place any or all such rights into effect.
These rights include, but are not limited to: the right to
plan, direct, control, increase, or decrease the operations;
the right to determine whether the operations or any
part thereof continues; the right to establish new jobs
and job classifications and to abolish, combine, or change
existing jobs, classifications and their requirements; the
right to establish the rates of pay for new job, classifica-
tions:, the right to determine the price of its products or
services, the sales methods, the volume of sales and the
methods of production and financing; the right to deter-
mine the products to be manufactured, sold or handled
and the services to be rendered including their quantity
and quality; the right to shift products in and out of the
plant:, the right to, in its discretion, schedule and assign
655
or reassign work duties for regular and overtime work;
the right to increase or decrease the number of jobs, em-
ployees, shifts, and/or number of working hours per day
or per week; the right to determine shift schedules and
change such scheduling; the right to have its work or
any portion thereof including repairs and/or maintenance
done by any person, firm or corporation; the right to es-
tablish, modify, rescind, or change and the right to en-
force safety rules for the orderly conduct of plant oper-
ations, including the right to determine the need for and
administration of physical examinations and mental tests;
the right to determine the qualifications for, and make
the selection of, its managerial and supervisory forces;
the right to purchase products, materials and parts from
any source including the right to determine the purchase
price of all such purchases; the right to determine wheth-
er to use employees full time or part time; the right to
change materials, processes, methods, products, tech-
niques and/or machines, equipment and operations and
to discontinue or introduce new materials, processes,
methods, techniques and/or machines, equipment and
products; the right to determine the selection, retention,
or substitution of any vending service; the right to deter-
mine the method of funding each Company benefit in-
cluding the identity and selection of the carrier or trust-
ee. The Company shall be the sole judge of applicants
for employment, physical fitness and the skills required
for each job classification and the qualifications and
standards necessary for any of the jobs it may have or
may create in the future and whether such standards and
levels are being met; the Company shall determine the
number of employees it shall employ at any one time, the
number assigned to any particular function, division, or
assigned area and the policies affecting the selection and
training of new employees. The Company shall have the
right to determine when overtime shall be worked and to
require employees to work overtime; the right to transfer
employees from job to job, work station to work station,
and shift to shift, and to change, add to or reduce the
number of employees, shift and work schedules; the right
to determine whether, when and where there is a job
opening; the right to separate probationary employees
without recourse to any provision of this Agreement; the
right, it its sole discretion, to hire or rehire employees,
transfers, or layoff employees because of lack of work or
other legitimate reasons, and recall employees who are
laid off; demote, promote, suspend, discipline or dis-
charge for just cause. The rights of management will not
be used to discriminate against any employee because of
their membership in the Union.
It is expressly understood and agreed that all rights
-heretofore exercised by the Company or inherent in the-
Company as the owner and operator of the business, or
as an incident to the management thereof, not expressly
contracted away by a specific provision of this Agree-
ment are retained solely by the Company. Any rights
granted to or acquired by the employees or the Union
under this Agreement or during its life shall have no ap-
plication beyond the terms of this Agreement or any re-
newal thereof.
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The failure of the Company to exercise any power,
function, authority or right reserved or retained by it, or
the exercise of any power , function , authority or right in
a particular manner shall not be deemed a waiver of the
right of the Company to exercise such power , function,
authority , or right , or to preclude the Company from ex-
ercising the same in some other manner , so long as it
does not conflcit with an express provision of this Agree-
ment.
The Company has and shall retain the right to move,
sell, close , liquidate , or consolidate the plant in whole or
in part , and to separate its employees in connection with
said moving , selling , closing , or liquidating of the plant
or nay portion thereof; however , in this event the Com-
pany will negotiate with the Union concerning the ef-
fects thereof upon the employees . It is fully understood
and agreed that the decision to move , sell, close , or liqui-
date shall rests solely with the Company and its obliga-
tion shall be limited to advising concerning such decision
and negotiating concerning the effects thereof on the em-
ployees.
It is agreed that the reserved management right as set
forth herein , or elsewhere in this Agreement , shall not be
subject to the grievance and arbitration provisions of this
Agreement nor shall they be subject to impairment by an
arbitration award under this Agreement.
It is further agreed that the Company shall have the
unrestricted right to determine where production shall be
performed and may, notwithstanding this Agreement or
any provision herein , transfer work to or from the loca-
tion covered by this Agreement to or from any other lo-
cation , as it may deem necessary or appropriate at any
time.
It is understood and agreed that this Management's
Rights provision shall not be exercised in such a way as
to conflict with any other provision of this Labor Agree-
ment.
APPENDIX E
Respondent 's Unauthorized Work Stoppage
Proposal of October 13, 1983
General Counsel 's Exhibit 8
ARTICLE-UNAUTHORIZED WORK
STOPPAGE
For the duration of this Agreement, the Union , its offi-
cers , representatives , members and the employees cov-
ered by this Agreement , shall not authorize , instigate,
cause , aid, encourage , ratify or condone , nor shall any of
the aforementioned parties take part in any strike, slow-
down , work stoppage, boycott, picketing , sympathy
strike , blockage of ingress or egress at the Company's
premises, or other interruption or interference of a like
or similar nature with the work of the Company includ-
ing any manner of stoppage not herein specified or an-
ticipated by the parties . Failure or refusal on the part of
any employee to comply with any provision of this Arti-
cle shall be cause for whatever disciplinary action, in-
cluidng suspension or discharge , against whatever
number of employees is deemed necessary by the Com-
pany In administering such discipline, the Company may
distinguish between leaders and other participants in the
unauthorized work stoppage , strike , slowdown , or other
interference with production.
It is agreed that in the event of a work stoppage, pick-
eting , or other curtailment of any nature unauthorized by
the Union, the Union shall, upon receiving notice there-
of, immediately send a telegram to its steward or other
representative at the paint , with a copy to the Company,
ordering those employees engaged in such illegal activity
to return to work and immediately cease the violation.
The Union further agrees to use all efforts at its disposal
and within its power to see that they do so including the
imposition of any and all penalties provided for in the
Union 's constitution. The failure of the Union to so act,
after due notice given by the Company , shall be con-
strued to mean that the Union sanctioned or condoned
the action of the employees involved Such communica-
tion shall be communicated by the Company as it deems
approrpiate . The Union further agrees that the work will
proceed as orderd and that any complaints as to manage-
ment 's orders shall be handled through the Grievance
Procedure; and that a refusal to perform work ordered
by management shall be considered a violation of this
Agreement.
In consideration of this "No Strike" pledge by the
Union and employees, the Company shall not lock out
employees for the duration of this Agreement provided,
however, this Agreement should not be construed as re-
quiring the Company to stay in continuous operation
contrary to its rights contained in the Management's
Rights clause of this Agreement. Neither the violation of
any provision of this Agreement nor the commission of
any act constituting an unfair labor practice or otherwise
made unlawful by any federal , state or local law shall
excuse the employees , the Union or the Company from
their obligations under the provisions of this Agreement.
The Union agrees that for the full term of this Agree-
ment , and any renewal or extension thereof , it will at all
times cooperate fully with the Company in maintaining
full production.
It is expressly understood and agreed that an employee
covered by this Agreement may not withhold their serv-
ices from the Company in connection with any labor dis-
pute , whether or not at the Employer's premises, and its
is agreed that the Union will not authorize or condone
the action of any employee in so withholding their serv-
ices . There shall be no refusal to work on , handle, or
produce any materials or equipment because of a labor
dispute affecting this Company, a vendor , purchaser,
supplier or carrier of said materials or equipment.
The Company shall have the sole and complete right
to immediately discharge any employee participating in
any unauthorized strike , slowdown , walk-out or other
cessation of work and except for the question of whether
an employee actually participated in such unauthorized
action, such employee or employees shall not be entitled
to nor have any recourse to any other provision of this
Agreement , including the Grievance and Arbitration
provision.
REICHHOLD CHEMICALS 657
In the event of misconduct prohibited by this Article,
neither party shall meet or discuss the merits of the dis-
pute until such time as the illegal action is terminated. It
is further agreed that if such prohibited activity occurs
the Company shall have the unrestricted right to replace
any and all such participants and they shall have no fur-
ther rights under this Agreement and no action in law or
equity or before any administrative agency, including the
National Labor Relations Board. This right to replace
employees engaging in misconduct prohibited by this Ar-
ticle shall be in addition to other disciplinary action, as
deemed appropriate by the Company, provided for in
this Article.