Reliable Tool Co.

National Labor Relations Board - Board Decisions

Oct 21, 1983

268 N.L.R.B. 101 (N.L.R.B. 1983)

RELIABLE TOOL CO.
Reliable Tool & Machine Company, Inc. and Local
Lodge 1541 of District Lodge 113 of the Inter-
national Association of Machinists and Aero-
space Workers, AFL-CIO. Case 25-CA-13926
21 October 1983
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 13 August 1982 Administrative Law Judge
Wallace H. Nations issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed copies of his
briefs to the judge.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the judge's rulings,
findings, and conclusions only to the extent consist-
ent with this Decision and Order.
The judge found that the Respondent bargained
in bad faith, in violation of Section 8(a)(5), when
during an economic strike it withdrew its prestrike
package of proposals and substituted a new pack-
age, some of the provisions of which were less fa-
vorable to the Union than withdrawn proposals on
which the parties had reached agreement. We are
persuaded that, in the circumstances presented
here, that finding is in error.
Early in the contract negotiations the parties
agreed that all agreements on individual provisions
would be tentative and nonbinding until a complete
agreement had been reached. As the judge recog-
nized, the withdrawal of individual proposals pre-
viously agreed to does not constitute a per se viola-
tion of a party's duty to bargain, although it prop-
erly may be considered in determining whether
that party's total pattern of bargaining conduct
warrants the conclusion that it is seeking to avoid
rather than to reach an agreement. Central Missouri
Electric Cooperative, 222 NLRB 1037, 1042 (1976).
Here, the parties' express sanctioning of the non-
binding nature of agreements on individual items
makes particularly appropriate the application of
that principle. The judge found, however, that the
Respondent engaged in bad-faith bargaining be-
cause, in his estimation, the substituted package
was, overall, "substantially more unfavorable to the
Union" than the previous package.
The particular items on which the Respondent is
said to have regressed in its later proposal involve
recognition of the Union in future plants, the time
allowed for filing grievances, union security, se-
268 NLRB No. 3
niority, insurance benefits, and pensions.' At the
same time, the new package included the option of
an additional 5-cent-per-hour wage increase or an
additional holiday, plus an additional day of paid
vacation, increases in major medical and disability
benefits, lengthening the rest period, and uncondi-
tionally granting a wage premium for the third
shift.
At the time the Respondent made its new pro-
posal package, negotiations had been at a standstill
for over 2 months because of a temporary impasse
over the location for bargaining sessions during the
strike, the Union not wishing to "cross its picket
line" to meet with Respondent within the plant. 2
Respondent, therefore, did not "sidetrack" a for-
ward-moving process by introducing new elements
into the negotiations. It would appear from this
standpoint that, rather, a fresh proposal was at least
as likely to propel negotiations forward as to delay
them. The proposals themselves, although found by
the judge to be, taken together, substantially more
unfavorable to the Union than the positions taken
by the Respondent previously, are not so "harsh,
vindictive, or otherwise unreasonable" that they
warrant the presumption that they were proffered
in bad faith. See Chevron Chemical Company, 261
NLRB 44, 46 (1982). Whether, balancing the addi-
tional concessions against the "takeaways," the
whole package was more or less favorable than the
previous package is, in fact, debatable. 3 Arguably,
there might be circumstances under which the
withdrawal of proposals agreed upon, and the in-
sistence on provisions similar to those proposed by
Respondent here, would evidence an intention not
I As set forth more fully in the attached judge's decision. the later
package affected these matters as follows:
I. The Respondent withdrew its agreement that recognition of the
Union would extend to future plants in Noble County, Indiana. It
continued to recognize the Union in its two existing plants.
2. After agreeing that certain grievances would be timely if filed
within 2 working days. Respondent reverted to its position that the
time limit be 48 hours.
3. The Respondent first agreed to an agency-shop union-security
provision but then proposed an open shop.
4. On recall from layoffs, Respondent first agreed to strict seniori-
ty, but later proposed the addition, "provided that they have the re-
quired skills and ability to perform the work available." Agreement
on notification at least 2 working days in advance of layoff and on
superseniority for union stewards, officers, and committeemen was
withdrawn.
5 The Respondent proposed withdrawal of maternity benefits
from the existing and agreed-upon insurance package.
6. The later package proposed withdrawal from the union pension
plan and establishment of "another retirement plan."
2 There is no exception to the judge's finding that the Respondent
acted lawfully when it "insisted" during the early months of the strike
that negotiations, when resumed, should continue to be held at its offices
within the struck plant.
a To the extent that the Respondent sought to capitalize on its ability
to weather the strike by seeking terms more favorable to itself, its con-
duct was, in any event, lawful. Hickinbotham Bros.., Ltd., 254 NLRB 76,
102-103 (1981): O'Malley Lumber Co. 234 NLRB 1171. 1179-80 (1978).
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to reach an agreement. Here, however, the Re-
spondent merely made new proposals for the
Union's consideration. The Union refrained from
continuing negotiations over the subjects on which
it claims the Respondent regressed in its new pack-
age, preferring instead to resolve the legitimacy of
the Respondent's bargaining conduct by litigating
the instant proceeding. Since we find that the with-
drawal and substitution of proposals were not un-
lawful, we shall dismiss the complaint.4
ORDER
The complaint is dismissed.
4 We note also that the Respondent's conduct reveals neither an inten-
tion to undermine the parties' longstanding bargaining relationship nor an
adamant refusal to reach compromises.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge:
On September 18, 1981, Local Lodge 1541 of District
Lodge 113 of the International Association of Machinists
and Aerospace Workers, AFL-CIO (the Union), filed a
charge against Reliable Tool & Machine Company, Inc.
(Respondent). The complaint issued on November 20,
1981, alleging that Respondent has failed and refused and
is failing and refusing to bargain collectively in good
faith with the Union in violation of the Act. A hearing
was held before me on these matters at Fort Wayne, In-
diana, on April 18 through 21, 1982. Briefs were re-
ceived from the General Counsel and Respondent.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent maintains its principal office and place of
business at Kendallville, Indiana, where it engages in the
manufacture, sale, and distribution of automotive parts
and related products. During the 12-month period ending
August 31, 1981, Respondent, in the course and conduct
of its business operations, derived gross revenues in
excess of $500,000, and sold and shipped from its facili-
ties products, goods, and materials valued in excess of
$50,000 directly to points outside the State of Indiana. I
find that Respondent is an employer within the meaning
of the Act and that it will effectuate the policies of the
Act to assert jurisdiction in this case.
II. THE LABOR ORGANIZATION INVOLVED
Local Lodge 1541 of District Lodge 113 of the Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, is a labor union within the meaning of
the Act.
Ill. THE ALLEGED UNFAIR LABOR PRACTICES
In 1963 and prior thereto Respondent was engaged in
manufacturing operations in Kendallville, Indiana. In
1963 the Company recognized the Union as the repre-
sentative of production and maintenance employees of
the Company and a contract was negotiated between the
Company and the Union in that year. All of the 1963
contract negotiations were conducted by Harvey Charles
who was then the president of the Company. Harvey
Charles' son, Arthur Charles, participated in all of the
1963 negotiation meetings as an adviser and all of the
meetings were held in the office of the president of the
Company. At the time of the 1963 negotiations, the
Company had only one plant and the president's office
was located in that plant, known as the South Main
Street Plant. There were approximately 10 or 11 meet-
ings.
The contract negotiations were held again in 1966 and
all negotiation meetings were conducted for Respondent
by Harvey Charles in his office at the South Main Street
Plant. Arthur Charles was again present at all negotia-
tion meetings as an adviser.
The 1969 contract negotiations were conducted for the
Company by Harvey Charles and all meetings were held
in his office at the South Main Street Plant. Arthur
Charles was present at all the negotiation meetings. The
1969 negotiation meetings did not result in a contract
being agreed upon prior to the expiration of the previous
contract and a strike started on June 27, and ended on
September 29.
During the period of the 1969 strike there were four
contract negotiation meetings while the Union was pick-
eting. These four meetings were held in the office of the
president of the Company and Respondent contends that
union officials crossed the picket line to attend the meet-
ings. The Union contends that during this strike the
picket lines were withdrawn during the negotiating ses-
sions so that its officials did not have to cross the picket
line.
The next contract negotiations were in 1972 and
Arthur Charles had become president of the Company.
All of the negotiation meetings in 1972 were again held
in the office of the president at the South Main Street
Plant. Arthur Charles conducted all the meetings as the
chief company representative.
In 1978 there were again contract negotiations and all
the meetings were held on company premises in the
office of President Arthur Charles. By this time the
Company had built a new building on West Ohio Street
and the office of the president was then located in that
building. Arthur Charles presided as chief company
spokesman at all the meetings.
The current contract negotiations began in 1981. All
the meetings prior to the expiration of the contract on
June 27 were held in the office of the president, Arthur
Charles, at the West Ohio Street Plant. Charles presided
over the meetings as chief company spokesman. The first
negotiating meeting was held on May 19, and was devot-
ed to the Union's presentation of its proposal of a new
contract draft.
The second 1981 negotiating meeting was held on May
28. At this meeting the Company commented on various
union proposals and the Company presented its written
proposed contract draft.
102
RELIABLE TOOL CO.
Subsequent meetings were held on June 16, 17, 18, 19,
22, 24, and 25. At these meetings there was extensive dis-
cussion of various proposals and counterproposals by
both parties and tentative agreement on several specific
contract articles was reached. However, no agreement
was reached on the total contract and the parties reached
an impasse on June 25. Details as to the portions of the
contract for which tentative agreement had been reached
will be given, as pertinent, at a later point in this deci-
sion. On June 27, the Union began a strike which contin-
ues to this day.
During the period from June 27 to November 3, a
Federal mediator was utilized to try to end the impasse.
Early in July, Arthur Charles received a contact from
the mediator concerning the holding of a bargaining ses-
sion. The testimony of the mediator is not of record and
what he relayed between the parties of necessity must be
gathered from the parties' representations of what he
said. The only significant disparity in the parties' under-
standing in this period relates to the site of a proposed
meeting between the Union and Respondent. Charles tes-
tified that the mediator asked whether he would meet
with the Union and Charles replied that he would meet
with the Union at any time it wanted. Charles testified
that the mediator then asked where the meeting should
be held and Charles said that it should be held at the
company offices where they had always been held. The
mediator expressed the view that the Union would not
cross its picket line.
The mediator made subsequent contact with Charles,
who continued to express the view that the meeting
should be held where it had always been held, in the
company offices. Charles contends that the mediator
never, during this period of time, suggested a specific al-
ternate location for a meeting. The Union refused to
cross its picket line as it is a violation of its International
constitution to do so and subjects the members crossing
the picket line to a variety of penalties. The General
Counsel, on brief, contends that the Union did suggest
alternate locations; however, I can find no clear support
for this contention in the record. There is certainly no
evidence that the mediator actually suggested an alter-
nate meeting site.
The stalemate over a meeting place continued through
the summer until around the middle of October when
Charles initiated a suggestion to the mediator that the
parties meet alternately on company premises and off
company premises. The arrangement proposed by
Charles was satisfactory to the Union and subsequent
meetings were held beginning on November 11.
Previously, on September 4, the Company wrote a
letter to the Union advising of the withdrawal of the
Company's existing proposal and stating that the Compa-
ny was working on a new proposal which would be sub-
mitted to the Union in the near future. On September 15,
the Company had completed a rewrite of its proposed
contract-draft and on that date the new proposal was de-
livered to the Union by the mediator.
After delivery of the new proposal to the Union, the
mediator returned to the Company and advised Charles
that the Union did not like the proposal they had re-
ceived. He stated that the Union was going to take the
proposal to the membership, which was done. Thereaf-
ter, no contact was made between the Company and the
Union until November 3, when the Union sent a letter to
the Company requesting a meeting to negotiate over the
Company's September 15 proposal. Arthur Charles then
suggested alternate meeting sites and meetings were set
up to begin in November.
The first such meeting was held on November II. At
the start of the meeting, Charles introduced Raymond
Nelson, a labor consultant, and Bill Lear as the new
company representatives at the bargaining meetings.
There were no agreements arrived at during the Novem-
ber II meeting and subsequent meetings were held on
November 24, December 4, 7, and 11, 1981, and January
11, 1982. No agreement was reached between the parties
and there have been no meetings since January 11, 1982.
Under the facts and the pleadings, there were four
issues presented in this proceeding. First, has Respondent
refused to bargain in good faith since July 6, 1981, by re-
fusing to meet with the Union except at its offices until
November 11, 1981? Second, did Respondent, on Sep-
tember 4, 1981, withdraw its package of proposals for
the purpose of avoiding its obligation to bargain in good
faith with the Union? Third, did Respondent refuse to
bargain in good faith by submitting to the Union unrea-
sonable contract proposals on September 15, 1981?
Fourth, was the Union's economic strike of June 27,
1981, converted to an unfair labor practice strike by Re-
spondent's actions in insisting that the parties engage in
negotiations at the Company's facilities or by its subse-
quent actions.
A. Issue of Whether Respondent Refused to Bargain
in Good Faith by Insisting on Meeting at Its Offices
Between July 6 and November 11, 1981
As noted above, Respondent's president, Arthur
Charles, insisted, through the Federal mediator, that al-
though the Company was willing to meet at any time
with the Union, such meetings must take place in the
company offices which were behind the Union's picket
line. The fact that the Union would not cross its own
picket line was relayed about July 6, 1981, to Charles by
the Federal mediator. There is a dispute in this record, as
reflected in the briefs, as to whether the Union suggested
any alternate meeting sites at any time. Charles contends
that they did not. The Union's representative, Bruce
Putman, in an incomplete answer, indicated that, at some
unspecified time, alternate sites were suggested to the
mediator. What the mediator relayed to the Company on
this point is not of evidence. I credit Charles' testimony
that no specific alternate sites were suggested.
The employer has a duty to meet at reasonable times
and places with the union in order to bargain. The ques-
tion is whether or not the Company's insistence on meet-
ing at its offices was reasonable or unreasonable under
the circumstances.
After the breakdown in negotiations between the par-
ties in June, it does not appear from the evidence that
either side was particularly insistent on resuming negotia-
tions. In the time frame between the institution of the
strike and the withdrawal of the Company's existing pro-
103
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
posals on September 4, the evidence reflects very little
concern by either side about the fact that negotiations
were not taking place. It may well be that both parties
were waiting during this period to see what effect the
strike might have.
Under these circumstances, I cannot find that the
Company's insistence on resuming negotiations at its of-
fices was unreasonable. All negotiations since recognition
of the Union in the early 1960's had been held at the
company offices, even during a previous strike. Although
I agree that the Union did not have an obligation to
cross its own picket line, in actual practice it had either
crossed its picket line in the earlier strike or had with-
drawn its pickets during the times at which negotiation
sessions were held at the company offices. The company
offices had proven to be a satisfactory meeting place to
both the Union and the Company in all previous negotia-
tions and I cannot find that specific alternate sites were
relayed to Respondent by the Union in this time frame.
Because of the past practices of the Union and Respond-
ent, including bargaining sessions at the company offices
during a previous strike, I find that the Company's insist-
ence on meeting at its office during the period between
July 6 and September 15, 1981, in and of itself, does not
constitute a refusal to bargain in good faith.
B. Did Respondent's Withdrawal of Outstanding
Proposals on September 4, by Itself or Combined with
Its Proposals of September 15, Constitute Refusal to
Bargain in Good Faith
As noted earlier, by Respondent's letter of September
4, 1981, it withdrew all of the tentatively agreed-upon
articles of the contract. There had been agreement on
many of the sections of the 25 involved articles, although
clearly disagreement existed as to several of the more im-
portant articles. Although the General Counsel urges
that the mere withdrawal of the agreed-upon proposals
on September 4 in and of itself constitutes an unfair labor
practice, it is difficult to reach a decision on this point
until one views the Company's subsequent actions. The
Company did not simply withdraw its proposals and sit
tight until the Union filed a charge alleging refusal to
bargain. Rather, its September 4 letter indicated that new
proposals were being formulated by the Company which
would be shortly forwarded to the Union in order to
resume negotiations. What the Company offered in the
way of new proposals appears to me to be the key to de-
termining whether it was continuing to bargain in good
faith on and after September 4, or whether the Company
intended to avoid its obligation to bargain.
The new proposal which the Respondent submitted to
the Union through the Federal mediator on September
15 was a complete contract-draft which incorporated
many of the matters which had been agreed to between
the parties prior to the impasse on June 25, but also in-
cluded new proposals with some more favorable to the
Union and some proposals less favorable than the Com-
pany's last position in June.
The proposals included six items on which the Compa-
ny's September 15 proposals represented a plus for the
Union. These items were the following:
1. An option of an additional 5-cent-per-hour
wage increase (having the effect of making the ini-
tial increase to 55 cents) or an additional holiday.
2. An additional day added to the vacation
period.
3. Raising the major medical insurance maximum
from $250,000 to $500,000.
4. Increasing the weekly insurance sickness and
accident benefit from $80 to $90 effective the first
year of the agreement.
5. Increased the previously agreed ten minute
rest period to fifteen.
6. Removed contingency placed upon the in-
crease to 30 cents in third shift premium.
On the other hand, the Company proposed the follow-
ing changes which must be considered less favorable to
the Union than its position when negotiations broke off
on June 25:
1. With respect to recognition, the Company had
agreed as of June 1981 that recognition applied to
all plant employees of Respondent in Noble
County, Indiana (the two plants at Kendallville, In-
diana and any future plants in Noble County, Indi-
ana). The September proposal would limit recogni-
tion to the two existing plants in Kendallville, Indi-
ana.
2. Under the contract article dealing with man-
agement, after considerable give and take, the Com-
pany and the Union had agreed as of June 1981 to
accept the wording of the previously existing article
which, inter alia, allowed two working days for em-
ployees to file complaints against management. The
September proposal withdrew this agreement and
substituted an earlier proposal that the time frame
be 48 hours. The Union believes that the two work-
ing days wording protects employees against the
running of weekends against employees in their
right to file a complaint.
3. With respect to union security and representa-
tion, after negotiation over various changes, the
parties had agreed in June that there would be no
change in the previous contract which called for an
agency shop. The September proposal by Respond-
ent changed this agreement and proposed an open
shop, a proposal that is totally unacceptable to the
Union.
4. The September 15 proposal changed Section
IV of Article 4 (seniority) by adding a provision
which stated, "that employees have required skills
and the ability to perform available work"; deleted
the previously agreed to Section V (Superseniority
for Union officers, shop stewards, and union com-
mitteemen); and withdrew the agreed to language
of the old Section VII and substituted more onerous
language.
5. The September proposal provided for some
improvements in the insurance package but called
for the removal of maternity benefits that had been
covered in the old agreement.
104
RELIABLE TOOL CO.
6. Under the old agreement in the portion dealing
with pensions, which had six sections, the Respond-
ent contributed to the Union's pension program. In
its 1981 proposals the Union sought the same agree-
ment but with increased contributions by the em-
ployer. The employer sought no changes in the ex-
isting contract. Under the union pension plan [it]
proposed to establish a company pension plan, the
terms of which would be subject to bargaining.
The Union urges that it also reached an agreement as
of June 1981, whereby there would not be mandatory
overtime. Its representatives claim that, as part of a pack-
age trade-off at the next-to-last negotiation session, Re-
spondent indicated that it would drop its proposed man-
datory overtime proposal. Arthur Charles hotly disputed
this. I believe that the Union is mistaken in its belief that
an agreement was reached on this issue. There is nothing
in writing to indicate that an agreement was reached and
Charles showed no hesitation at the hearing to agree that
Respondent had changed its position on a number of pre-
viously agreed-to contract provisions. There is nothing
so special about mandatory overtime that would lead me
to find that an agreement had been reached and Charles
was trying to hide the fact. I credit Charles' testimony
and position in this regard.
In addition to the foregoing, Respondent's September
proposal also made some changes which were neither
more nor less favorable to the Union on certain articles
about which no agreement had been made and did not
change its position on other unagreed-upon articles.
Comparing the Company's position as of June 25 with
the new proposals, one can only conclude that the Sep-
tember proposal is substantially more unfavorable to the
Union than the June 25 agreement.
Two of the September company proposals, that of of-
fering an open shop to the Union after agreeing to an
agency shop by June 25, and the proposal to remove the
existing pension plan and replace it with an unknown
one after agreement to the Union's pension plan, are by
themselves so unfavorable to the Union that it has to cast
serious doubt on the Company's desire to resume and
conclude bargaining to an agreement. The General
Counsel also asserts that the proposed mandatory over-
time provision in the September proposal is a harsh re-
versal of Respondent's earlier agreement on overtime.
However, since the fact of the agreement is in dispute
and I find from the evidence that the Company had not
agreed, as of June 25, to noncompulsory overtime, I do
not find that this is a change in its previous position.
Respondent urges that the aspects of its September
proposal which are negative to the Union are either rea-
sonable offsets to the proposed positive items or reflect
its perceived improved bargaining position as it had
weathered the strike without much problem. In support
of its position that it is serious about bargaining in good
faith, albeit from a superior position, Respondent points
out that it initiated the new proposals, urged meetings
for negotiations on the proposals, and suggested, through
the mediator, alternate meeting sites. On the surface this
appears to be a reasonable position.
However, in my opinion, the September proposals go
far beyond merely asserting a perceived improved bar-
gaining position seeking concession or reasserting posi-
tions originally urged by it in the initial bargaining ses-
sions. Primarily, the change of position from agreement
on an agency shop to a demand for an open shop and a
totally new demand to pull out of the existing pension
plan and bargain for a new one are real barriers raised
by Respondent to thwart successful negotiations. The
two proposals are more indicative of an intention to
cease recognizing the Union as a bargaining agent rather
than serious proposals over which the Company intends
to bargain. I find it significant in this regard that in the
bargaining sessions that took place in the fall and early
winter of 1981-1982 the Company offered no movement
whatsoever on these items.
Consequently, though I agree with Respondent that it
has a lawful right in the circumstances to withdraw what
was then on the table as of September 4, and substitute a
new proposal to attempt to resume meaningful negotia-
tions, I find it has gone too far in the harshness of its
proposals. I find that the new proposals were so unac-
ceptable to the Union on the surface as to reflect a con-
scious intent on the part of Respondent to completely
stymie meaningful negotiations. Accordingly, I find that
Respondent is now, and has been since its withdrawal of
all theretofore agreed-to articles of the proposed con-
tract, refusing to bargain in good faith, in violation of
Section 8(a)(5) of the Act. See Randle-Eastern Ambu-
lance Service, 230 NLRB 542 (1977); Walker Die Casting,
Inc., 255 NLRB 212 (1981).
Respondent relies on the recent case of Hickinbotham
Bros. Ltd., 254 NLRB 96 (1981), in support of its propo-
sition that its actions should not constitute an unfair
labor practice. As pointed out by Respondent, the facts
and issues in Hickinbotham are similar to those of the
present case and, indeed, it appears that some of manage-
ment's actions in the instant case were taken with Hickin-
botham in mind. In Hickinbotham, the employer and the
union agreed, at the onset of negotiations, that all agree-
ments on individual provisions would be tentative until
an entire collective-bargaining agreement was reached, a
situation similar to that involved herein. During the ini-
tial negotiations in Hickinbotham, some issues were re-
solved. However, no agreement was reached on issues of
seniority, job bidding, and the employer's proposal to
change from the Teamsters pension plan to its own plan.
After several bargaining sessions, the employer put its
best offer in writing, but it was rejected by the union
membership which voted to strike. During the strike, the
employer achieved nearly full production by hiring re-
placements and using supervisory employees. At the first
meeting after the strike began, the narties agreed that
they had reached an impasse and a Federal mediator was
appointed to conduct further meetings. At subsequent
meetings the employer withdrew its earlier proposals and
submitted new proposals less favorable to the union on a
number of issues. In particular, the employer reverted to
its original proposal concerning an open-shop provision
and remained firm on other issues despite signs of move-
ment by the union. The union filed an 8(a)(5) charge al-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leging that the employer had withdrawn earlier propos-
als in bad faith and he made regressive, onerous propos-
als as an alternative. The Board approved the administra-
tive law judge's decision dismissing the complaint in its
entirety. In Hickinbotham, the administrative law judge
noted that the newly stated proposals of the employer
were reasonably tenable positions and that such with-
drawals of earlier proposals followed by offering of new,
albeit harsher alternatives, is lawful where
. . . in addition to the flexing of its economic
muscle, Respondent had specific reasons for its re-
version to an earlier proposal, some of which are di-
rectly attributable to circumstances changed by the
strike such as the replacement's expressed desire not
to have to join a union and a savings realized by
subcontracting certain processes which had never
been subcontracted before. Other reasons were the
same as those advanced when the provisions were
initially proposed. It is immaterial whether the
Union, the General Counsel, or I find these reasons
totally persuasive. What is important, and I so find,
is that these reasons are not so illogical as to war-
rant an inference that by reverting to these propos-
als Respondent has evinced an intent not to reach
agreement and to produce a stalemate in order to
frustrate bargaining [254 at 102-103].
The difference between the instant situation and that
presented in Hickinbotham is that the employer in Hick-
inbotham had detailed and logical reasons for its original
proposals and its later proposals even though they were
unfavorable to the Union. For example, it proposed to
take the bargaining unit employees out of the Teamsters
pension plan and place them under an existing pension
plan which it had in operation in its other plants for
many years. It had done a study of the Teamsters plan
and found that it was not financially sound. There is no
showing in the instant case that the Employer had made
a serious investigation of the soundness of the involved
Union's pension plan nor did it offer evidence as to the
soundness and successful operation of whatever pension
plan it had in mind when it made its September 15 pro-
posal. Similarly, the employer in Hickinbotham wanted
to change to an open-shop situation since many of the
strike replacements, who would remain as permanent
employees, had requested that they be nonunion. There
is no evidence in this case that any such similar request
had been made by those strike replacements who may
expect to stay on as permanent employees.
In conclusion, I find that although the Employer in
this case attempted to track the actions approved in
Hickinbotham, the harsh new September proposals,
unlike the employer's proposals in Hickinbotham, are not
supported by logical reasons and appear designed only to
thwart negotiation and undermine the Union.
C. Has the Respondent's Refusal to Bargain in Good
Faith Converted the Union's Economic Strike into an
Unfair Labor Practice Strike
Although I do not agree with the position of the Gen-
eral Counsel that Respondent's initial insistence after the
strike began upon meeting with the Union at its office
constitutes an unfair labor practice, thereby converting
the strike in progress into an unfair labor practice strike,
I find that its actions of September 4, 1981, and thereaf-
ter had this effect. See Randle-Eastern Ambulance, Inc.,
supra. I find that the Company's letter of September 4,
1981, was the first step in what has turned out to be a
series of steps to frustrate negotiations. Thus, I find that
the Union's economic strike was converted to an unfair
labor strike on September 4, 1981, and Respondent is ob-
ligated to reinstate strikers replaced after September 4,
1981, on their request, even if Respondent has to dis-
charge strike replacements to accomplish this goal.
On the basis of the above findings of fact and the
entire record in this case, I make the following
CONCLUSIONS OF LAW
1. The Respondent, Reliable Tool & Machine Compa-
ny, Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. Local Lodge 1541 of District Lodge 113 of the
International Association of Machinists and Aerospace
Workers, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By refusing to bargain collectively and in good faith
with the Union after September 4, 1981, Respondent has
engaged in, and is engaging in, unfair labor practices in
violation of Section 8(a)(1) and (5) of the Act.
4. The strike among Respondent's employees which
commenced on June 27, 1981, was converted to an unfair
labor practice strike by Respondent's unfair labor prac-
tices on September 4, 1981.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices in violation of Section 8(a)(1) and
(5) of the Act, I shall recommend that Respondent be or-
dered to cease and desist therefrom and from any like or
related manner of infringing upon its employees' Section
7 rights and to take certain affirmative actions designed
to effectuate the policies of the Act.
I have found that Respondent unlawfully refused to
bargain with the Union which has been the certified and
contractual representative of its employees for a number
of years. I shall therefore recommend that it be ordered
to bargain collectively with the Union, on request, con-
cerning rates of pay, wages, hours, and other terms and
conditions reached.
I have also found that an economic strike was pro-
longed and converted into an unfair labor practice strike
on September 4, 1981, by Respondent's conduct in viola-
tion of the Act. I shall therefore recommend that Re-
spondent be ordered to offer, on application, to all strik-
ing employees who were not permanently replaced while
economic strikers, reinstatement to their former jobs or,
if those jobs no longer exist, to substantially equivalent
positions without prejudice to their seniority or other
rights and privileges, discharging, if necessary, any re-
106
RELIABLE TOOL CO.
placements hired on or after September 4, 1981, and to
make each of these striking employees whole for any loss
of earnings they may have suffered by reasons of Re-
spondent's failure, if any, to reinstate them within 5 days
after the date on which they apply for reinstatement to
the date of Respondent's offer of reinstatement, by pay-
ment to each of them of a sum of money equal to the
amount they would normally have earned during said
period, less net earnings, if any, during said period, plus
interest, to be computed in the manner described in F.
W. Woolworth Co., 90 NLRB 289 (1950); Florida Steel
Corp., 231 NLRB 651 (1977); and Isis Plumbing Co., 138
NLRB 716 (1962).
[Recommended Order omitted from publication.]
107