Stephen-Son-Yost Steel

National Labor Relations Board - Board Decisions

May 31, 1989

294 N.L.R.B. 395 (N.L.R.B. 1989)

STEPHENSON-YOST STEEL
Lapham-Hickey Steel Corporation d/b/a Stephen-
son-Yost Steel and United Steelworkers of
America, District 34. Case 17-CA-13243
May 31, 1989
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On December 30, 1988, Administrative Law
Judge Frederick C. Herzog issued the attached de-
cision. The Respondent filed exceptions and a sup-
porting brief.
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 brief and has
decided to affirm the judge's rulings, findings, and
conclusions, as modified below, and to adopt the
recommended Order.
We agree with the judge that the Respondent
violated Section 8(a)(5) and (1) by bargaining in
bad faith and by unilaterally implementing new
terms and conditions of employment after only the
second bargaining meeting between the parties on
September 29, 1986.1 As the judge found, the par-
ties exchanged written bargaining proposals at their
initial negotiating meeting on September 19. The
Union's proposal sought substantially increased
wages, changing and raising one job classification,
liberalized leave, and health care benefits. The Re-
spondent's proposal was in the form of a complete
contract package and provided, inter alia, for re-
ductions in pay rates for leadmen, new hires,
number of job classifications (which would affect
wages), and elimination of cost-of-living adjust-
ments.
During the morning session of their next and
final meeting on September 29, the parties agreed
to a number of compromise positions.2 Then,
during the lunchbreak, Union Bargaining Repre-
sentative Cooper presented the Respondent with a
wage proposal calling for a 44-cent-an-hour in-
crease in each of the two job classes to match
those enjoyed by the Respondent's employees at its
St. Louis facility.3 The Respondent's chief negotia-
' All dates refer to calendar year 1986
2 The parties reached agreement on some economic issues , including
leadman pay, retention of the existing dental and (certain aspects of the)
medical insurance plans, and also agreed to forgo contract language
changes proposed involving noneconomic matters, t e , recognition, union
security, and checkoff provisions The Respondent at that point had
made no responses with respect to other noneconomic grievance issues
involving lack of heat, broken windows, and slow payment of insurance
claims
3 We find, contrary to the judge, that it was the Union's (rather than
the Respondent's) bargaining objective to obtain wages equivalent to
395
tor, Hobson, responded, according to Hobson's
own testimony, that the parties were too far apart,
but that Cooper insisted that the St. Louis wage
scale was what was needed to "make it fly."
Hobson further testified that Cooper thereupon of-
fered to discuss what other economic benefits the
Union would be willing to give up in order to get
the St. Louis wage rate. The Respondent then de-
clined not only the Union's wage proposal, but also
the offer to explore movement on other economic
items in return for the proposed increase, as sug-
gested by the Union. After the lunchbreak Hobson
presented the Union with what he called a final
offer. The Union again offered to discuss tradeoffs,
saying that the membership would reject the final
offer, but the Respondent reiterated that its offer
was final. The union membership rejected the offer
that same day (September 29), and on September
30 the Respondent posted a bulletin setting forth
the economic conditions of employment (contained
in its final offer), which would become effective
the following day for the reason that "there is no
signed contract as of Midnight 9-30-86." Thereaf-
ter, the Union's efforts to reach the Respondent to
arrange further negotiating meetings were unsuc-
cessful.
We agree with the judge's conclusion that no
genuine impasse was reached by the parties on Sep-
tember 29. Only two bargaining sessions were held,
and at the morning meeting of the second session
there was substantial movement from the positions
taken at the first meeting 10 days earlier. Indeed,
agreement was reached on leadman pay, union se-
curity, and checkoff, to cite a few examples, on
which the parties previously had been at odds.
Thus, the parties' ability to compromise and reach
agreement on numerous, previously disputed issues
that morning demonstrates that neither party could
have reasonably concluded at that juncture that
further bargaining was not possible. The Respond-
ent, however, seized on the Union's presenting a
new proposal for a 44-cent-an-hour wage increase
during the luncheon recess to justify the tendering
of its "final offer" after the recess. In this regard,
Hobson testified that he considered the union wage
proposal to represent the Union's "bottom line"
and that, consequently, it was evident that the par-
ties "were too far apart" for further compromise of
their respective positions. When pressed by the
judge to explain why the Union's proposal prompt-
ed the Respondent's "final offer," Hobson asserted
those that the Respondent was paying to employees at its St Louis facili-
ty However, notwithstanding the judge's reliance on his erroneous read-
ing of the record, we find, as set forth below, ample support for his ulti-
mate conclusion that there was no genuine impasse reached between the
parties on September 29
294 NLRB No. 27
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he took Cooper (who he considered to be
truthful) at his word when, in making the proposal,
Cooper stated that the St. Louis rate was what it
was going to take to "make it [an agreement] fly."
We are not persuaded by this explanation be-
cause the evidence shows that Cooper's proposal
was neither final nor written in stone; and, under
all the circumstances, Hobson should have recog-
nized that to be the case.4 For, although the Union
made plain that parity with the St. Louis wage rate
was a prime objective, it also advised the Respond-
ent that it was willing to discuss giving up other
economic items to compensate for that increase.
The Respondent, however, refused even to explore
the Union's offer to discuss potential tradeoffs for
increased wages.5 Instead, the Respondent returned
to the bargaining table after the break and, without
further bargaining, presented a written document
containing the terms of its "final offer"-an offer
which it had every reason to believe, in light of the
Union's bargaining position until then, would be re-
jected by the unit employees.6
In these circumstances, we find the Respondent's
precipitous presentation of a "final offer," instead
of exploring the Union's offer to discuss what it
was willing to trade for the wage increase, demon-
strates its true bargaining objective of declaring an
impasse for the purpose of implementing its own
terms and conditions of employment rather than
reaching agreement with the Union.7
4 See Printing & Graphic Communications Local 13 v NLRB, 598 F 2d
267, 273 (D C Cir 1979), in which the court stated that "[p]arties com-
monly change their position during the course of bargaining notwith-
standing the adamance with which they refuse to accede at the outset "
See also Teamsters Local 1750 v NLRB, 788 F 2d 27 fn 11 (D C Cir
1986) Here, as shown infra, there is no evidentiary basis for even infer-
ring that Cooper took an adamant bargaining position with respect to the
wage increase proposal In fact, the contrary conclusion is warranted,
given Cooper's repeated assertions that the Union was willing to discuss
tradeoffs
5 See NLRB v Eltec Corp, 870 F 2d 1112, 1117 fn 2 (6th Cir 1989), in
which the court noted that
Respondent's duty to bargain on this issue is not negated by the pos-
sibility or even the substantial probability that the Union would not
agree to respondent's proposed economic concessions The purpose
of the duty to bargain is to give the collective bargaining process a
chance to operate regardless of the possibility of success To hold
otherwise would allow employers and unions to skip the bargaining
stage altogether based upon their perceptions regarding the low
probability of reaching an agreement
Here, the Respondent has similarly shut the door on the Union's offer
to explore tradeoffs based on its asserted perception that no acceptable
agreement could be reached , rather than give the bargaining process a
chance to work
6 In fact, upon receiving the offer, Cooper told Hobson that the offer
would be voted down if all Hobson wanted was an answer to his stated
"take it or leave it" ultimatum Later that same day, the unit employees
unanimously rejected the offer
7 The language, "There is no signed contract as of Midnight 9 -30-86,"
on the face of the Respondent ' s September 30 posting of its "`Economic'
conditions of employment" implies misleadingly that new conditions are
necessary because of the expiring contract In fact, economic contractual
terms generally remain in force after the contract's expiration We find
that this misleading , publicly stated reason for implementing the final
offer lends further support to our conclusion that the Respondent de-
Accordingly, we find that the Respondent, in
violation of Section 8(a)(5) and (1), engaged in bad-
faith bargaining and unilaterally implemented its
contract offer without a genuine impasse having
been reached. We also find, as did the judge, that
the employees subsequently struck to protest the
foregoing unlawful conduct, and thereafter made
an unconditional offer to return to work, but were
refused reinstatement by the Respondent in viola-
tion of Section 8(a)(3) and (1) of the Act.8 We ac-
cordingly adopt the judge's conclusions of law and
his recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Lapham-
Hickey Steel Corporation, d/b/a Stephenson-Yost
Steel, North Kansas City, Missouri, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Glared a bargaining impasse simply to work its will as soon as possible
and not because it fully explored the grounds for agreement and reason-
ably concluded that none was possible
Member Cracraft does not find the bulletin misleading and, according-
ly, does not rely on it in finding that no impasse occurred
s The judge correctly determined that backpay for the unremstated
strikers should be computed in the manner prescribed in F W Woolworth
Co, 90 NLRB 289 (1950) He also correctly determined that the unit em-
ployees should be made whole for any losses they may have suffered by
virtue of the unlawful changes in their wages, hours, and working condi-
tions He did not, however, indicate the backpay formula to be applied to
that portion of the make-whole remedy The backpay owed the employ-
ees as a consequence of these unilateral changes shall, therefore , be com-
puted in the manner prescribed in Ogle Protection Service, 183 NLRB 682,
683 (1970)
Stephen E. Wamser, Esq., for the General Counsel.
William J. Cooney, Esq. (McBride, Baker & Coles), of
Chicago, Illinois, for the Respondent.
DECISION
STATEMENT OF THE CASE
FREDERICK C. HERZOG, Administrative Law Judge.
This case was heard by me in Kansas City, Kansas, on
January 11 and 12, 1988, and is based on a charge filed
by United Steelworkers of America, District 34 (the
Union) on January 7, 1987,1 alleging generally that
Lapham-Hickey Steel Corporation d/b/a Stephenson-
Yost Steel (Respondent) committed certain violations of
i All dates hereafter shall refer to the calendar year 1986 unless speci-
fied otherwise
STEPHENSON-YOST STEEL
Section 8(a)(1),2 (3), and (5)3 and Section 8(d)4 of the
National Labor Relations Act, U.S.C § 151 et seq. (the
Act). On November 5, 1987, the Regional Director for
Region 17 of the National Labor Relations Board (the
Board) issued a complaint and notice of hearing alleging
violations of Sections 8(a)(1), (3), and (5) and 8(d) of the
Act. Respondent thereafter filed a timely answer to the
allegations contained within the complaint, denying all
wrongdoing.
All parties appeared at the hearing and were given full
opportunity to participate, to introduce relevant evi-
dence, to examine and cross-examine witnesses, to argue
orally, and to file briefs. Based on the record, my consid-
eration of the briefs filed by the General Counsel and
counsel for Respondent, and my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The complaint alleges, the answer admits, and I find
that Respondent is a corporation with an office and place
of business in North Kansas City, Missouri, where at all
times material it has been engaged in the business of war-
ehousing, processing, and distributing carbon steel; that
during the 12-month period ending September 30, 1987,
in the course and conduct of its business operations, it
purchased and received at its facility mentioned above
products, goods, and materials valued in excess of
$50,000 directly from points outside the State of Missou-
ri; that during the same 12-month period it derived gross
revenues from such business operations in excess of
$500,000.
Accordingly, I find and conclude that Respondent is
now, and at all times material has been, an employer en-
gaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
2 Sec 8(a)(1) of the Act provides that
It shall be an unfair labor practice for an employer-
(1) to interfere with, restrain, or coerce employees in the exercise
of the rights guaranteed in section 7
Sec 7 provides that
Employees shall have the right to self-organization , to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in other concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, and shall also have the right to refrain from any or all
such activities
Sec 8(a)(5) of the Act provides that
It shall be an unfair labor practice for an employer-
(5) to refuse to bargain collectively with the representatives of his
employees, subject to the provisions of section 9(a)
* Sec 8(d) of the Act provides that
(d) For the purposes of this section, to bargain collectively is the
performance of the mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable times and confer in
good faith with respect to wages, hours, and other terms and condi-
tions of employment, or the negotiation of an agreement or any
question arising thereunder, and the execution of a written contract
incorporating any agreement reached if requested by either party,
but such obligation does not compel either party to agree to a pro-
posal or require the making of a concession
H. THE LABOR ORGANIZATION
397
The complaint alleges, the answer admits, and I find
that the Union is now, and at all times material has been,
a labor organization within the meaning of Section 2(5)
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. General Background and Labor Relations History
As shown above , Respondent operates as a processor
and seller of carbon steel goods from its facility in North
Kansas City, Missouri . That facility had, previous to its
acquisition by Respondent , been used for a similar pur-
pose by another company which employed workers in a
unit described as follows:
All production and maintenance employees em-
ployed at (the facility mentioned above), including
truck drivers whose headquarters are at said plant,
excluding, however, office and clerical employees,
supervisors, watchmen, office janitors and porters.
Respondent obtained the facility on February 29, 1984,
by purchasing the assets and goodwill of the previous
company, Stephenson-Yost Steel. Among such assets was
that company's "right, title and interest in and to" the
then current union contract. The contract referred to
was the latest in a series of approximately seven succes-
sive collective-bargaining agreements which had been
negotiated on behalf of the employees at the facility by
the Union, since it obtained representation rights in about
1963. Respondent expressly agreed to "assume and per-
form all duties and obligations to be performed by [the
previous company] during the life of the contract." Evi-
dently it did so, for there has been nothing raised indicat-
ing to the contrary, such as difficulties with other unions
which represent employees in other units or the occur-
rence of (a) strike(s) at the facility. Indeed, it is not
claimed that Respondent has ever previously been the
subject of unfair labor practice charges or complaints.
Though of no relevance to the issue of Respondent's
culpability here, it seems beneficially instructive concern-
ing the frame of mind of the Union's negotiators, and the
affected employees, to note here that negotiations be-
tween the Union and Stephenson-Yost Steel, which led
to the collective-bargaining agreement preceding the ne-
gotiations which form the core of this case, did not
prove useful from the Union's or employees' standpoint.
In fact, they led to an agreement that provided for a
wage freeze and an actual reduction of benefits.
In late July the Union timely notified Respondent of
its desire to reopen the collective -bargaining agreement
for new negotiations when it expired on September 30.
Respondent acceded to the Union's request and entered
into negotiations. However, these negotiations did not
lead to agreement. Instead, after only two negotiating
sessions , they led to Respondent's declaration of an im-
passe, a long hiatus in bargaining, a strike by the nine
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
employees5 in the unit, and disputes about the strikers'
reinstatement rights.
B. Contentions of the Parties and Issues
The General Counsel claims that Respondent bar-
gained in bad faith , without real - intent to seek agree-
ment, that no impasse was reached by the negotiators,
that an ensuing (albeit long-delayed ) strike was caused or
prolonged by-unfair labor practices of Respondent; and
that Respondent has failed and refused to meet its obliga-
tions to reinstate employees.
Respondent claims to have engaged in lawful , if hard,
bargaining , untainted by unfair labor practices , resulting
in a quick impasse after the second bargaining session.
Instead , so Respondent asserts, it is the Union that has
frustrated the bargaining process, most notably by its en-
gagement in concerted bargaining with other unions, lo-
cated in other cities and States , which have had labor ne-
gotiations with Respondent during the timeframe in-
volved here . Finally , so Respondent claims, the strike
was not caused or prolonged by unfair labor practices,
and the Union 's alleged demand for reinstatement on
behalf of employees was invalid.
Accordingly, I turn now to an examination of the
events in question.
C. Events at the Bargaining Table
Each of the two prestrike bargaining sessions was held
at a motel , evidently engaged by one of the parties, not
far from Respondent 's facility in North Kansas City,
Missouri.
Present and representing the Union at each of the
prestrike sessions were Ernie Cooper (a staff representa-
tive of the Union), Harold Cecil (a longtime employee of
Stephenson-Yost Steel and committeeman for the Union),
and Doug Falconer (another longtime employee of Ste-
phenson-Yost Steel and committeeman for the Union).
Representing Respondent at each of the sessions were
Jeffrey M . Hobson (corporate operations manager for
Respondent) and Richard A. Kill (division manager of
the facility in North Kansas City). Cooper and Hobson
acted as chief negotiators and spokesmen for their re-
spective sides.6
Each of the two bargaining sessions preceding the
strike began around 9 : 30 a.m . and lasted until around 2
p.m., excluding lunch.
5 The parties stipulated that during the period from May 1, 1987,
through July 9, 1987, the unit's employee/members consisted of, and only
of, the following persons
Fred Aldrich Cal Monroe
Harold Cecil Ike Pinaire
Richard Circle Brad Strange
Doug Falconer Kenny Hawkins
John Hays-
The five persons named all testified at the trial No other persons tes-
tified
1. First session-September 19
Opening pleasantries aside, Hobson told the Union's
negotiators that he preferred that negotiations be con-
ducted in an orderly manner, free of shouting. He went
on to say that when the parties reached a point where a
final offer would be appropriate, the Respondent would
make one, that it would be described as such, and that
no further offers would be made concerning the subject
matter.
The parties exchanged written proposals during this
first session.
The Union's called for an additional floating holiday, a
"substantial" wage increase, changing the classification
of a job known as "sideloader" so as to raise it, adding
funeral leave provisions, increased cost-of-living adjust-
ment by adjustment of the formula used in implementing
it, additional vacation for employees with 20 years of
service, reinstatement of a dental plan, addition of eye
care, adding health insurance for retirees with 30 years'
service, and discussion of complaints' concerning alleged
slow payment of insurance claims, lack of heat in the
building, and lack of safety equipment, including gloves.
The parties seem not to dispute the fact that this meet-
ing was conducted in evident good spirits, devoid of ob-
vious rancor or display of negative emotions. Instead, the
general tone seems to have been that it went about as
well as each had hoped for, i.e., from the Union's stand-
point, although the Union wanted Respondent to be
more generous and forthcoming, it was not truly disap-
pointed in the way the first meeting progressed, given
the realities of such negotiations; from Respondent's
standpoint, Respondent had the opportunity to set the
tone it wished to convey during negotiations. For exam-
ple, on hearing Cooper's description of some 2 dozen
broken windows at the facility, Hobson blandly replied
that he would look into the matter and get back to
Cooper about it. A similar exchange took place regard-
ing a complaint concerning the alleged late or slow pay-
ment of insurance claims. Thus, the Union complained of
unfairness and Respondent responded equably, with evi-
dent reasonableness, but firmly.
Respondent's proposal differed somewhat from the
Union's, not only in content, but also in form It was pre-
sented as a complete proposal. It called for changing the
Union's recognition clause from past contracts so as to
delete truckdrivers from the unit description; it also
called for changes in the union-security and checkoff
provisions made in past contracts. Respondent also pro-
posed deletion of provision for promoting unit employees
to positions outside the unit, changes in the hours of
work to eliminate a floating holiday, and deletion of pro-
visions for weekend holidays and leadman pay; it pro-
posed a reduction in the number of job classifications
(which would affect wages), pay rate for new hires and
elimination of pay for jury duty and funeral leave; it pro-
posed to eliminate the cost-of-living adjustment, the job
evaluation plan, and the provision for severance pay; it
proposed to reduce the vacation benefit and change the
language in the old grievance-arbitration clause.
7 Initially brought up as grievances
STEPHENSON-YOST STEEL
The parties took a break to refresh themselves after
this exchange of proposals.
When they returned , Cooper reviewed Respondent's
proposals aloud, and characterized them as "drastic take-
aways." On inquiring why Respondent wanted to take
the truckdrivers out of the unit , Hobson replied that Re-
spondent needed flexibility to call in an outside trucking
firm when its drivers were working the warehouse.
Cooper said he had no problem with Respondent solving
that problem , and that Respondent had been doing it
since 1963 ; he suggested that Respondent go on calling
outside help as needed , but that it leave its own truck-
drivers in the unit . Hobson promised to reconsider and
get back to his on this.
A similar exchange , with a like result , followed con-
cerning the proposed changes in union security , check-
off, evaluation of temporary supervisors , weekend holi-
days, and leadmen . Both sides agreed to table further dis-
cussion of the issues of proposed cuts in the fringe bene-
fit package such as major medical, dental , and short-term
disability plans, floating holidays , severance pay, reduc-
tion in vacation schedules, increased hours to accrue va-
cation leave, and cost-of-living adjustment, since these
were mutually viewed as economic issues.8
Cooper called for the provisions for job classes and
wage scales, jury pay, and funeral leave to be placed
back in the contract . He also called for Respondent to
increase the number of days employees would have to
file grievances from 2 to 5 days, in view of the fact that
truckdrivers might be away from the facility for that
long or longer . Similarly, he requested an increase in Re-
spondent's proposed time limit for requests for arbitra-
tion.
The parties agreed to correct a typographical error
concerning the expiration date for the proposed collec-
tive-bargaining contract . They also agreed on the design
of the medical plan.
2. Second session-September 29
The second and final meeting preceding the strike
began with an explanation that Hobson 's daughter was
ill, and that this would require Hobson to leave early in
the afternoon.
Respondent gave the Union its revised proposals, both
economic and noneconomic . Respondent dropped its
proposed changes in the old contact 's provision for rec-
ognition, union security, checkoff, funeral leave (as well
as including the Union 's proposal regarding step-parents
and guardian). Respondent also agreed to the Union's
proposal for increasing the number of days to file for a
grievance or arbitration . Respondent proposed to restore
the provisions for promoting unit employees to positions
outside the unit . Respondent continued to propose the
deletion of a floating holiday , but it restored the old lan-
guage covering treatment of weekend holidays and lead-
man pay . Respondent remained firm on its new provi-
sions for wages, except for an agreed-on change in a
clerical job classification . Respondent proposed two
a The parties had evidently reached agreement to put off discussion of
such matters until resolution of noneconomic issues , as parties to negotia-
tions are wont to do.
399
wage classes with six job classifications. The pay rate
was to be $3 less per hour for new hires , and provision
was made for hourly wages of $10 . 15 and $10 .79 for cur-
rent employees. Respondent indicated it would be agree-
able to a job evaluation proposal by the Union , so long
as it was kept to "something simple ." On Cooper's pro-
test that he did not understand what was wanted,
Hobson told him to put something in writing and get it
to him, which Cooper agreed to do. Respondent's pro-
posal for insurance (medical and dental) and vacation
was "as proposed ." Respondent proposed to include
some provision for severance pay, though at a reduced
rate from the expiring contract. Respondent proposed
that all this be put in a contract for 3 years ' duration.
In the ensuing discussion agreements were reached on
the medical insurance plan's design , and on the dental
plan already in effect , but not on the comprehensive
major medical plan, with its increased deductible
amounts, or the short-term disability plan. No agreement
was reached upon vacations , wages for current employ-
ees, elimination of cost -of-living adjustments , severance
pay, the checker job classification , or even on the $3-per-
hour wage reduction for new hires (since Respondent re-
fused to agree on this unless it was part of an en_ tir`e
package agreement).
The Union presented its revised proposal to Respond-
ent during the luncheon break which followed . It pro-
vided for revising the provisions for floating holiday,
severance pay provisions , and a capped cost-of-living at
15 cents per hour per year . It provided for an additional
week of vacation after 20 years and wage increases of 44
cents for each of the two job classes, with 5-percent in-
creases thereafter for the second and third years of the
contract. Discussion of the proposed wage increase led
to the possibility being broached by Cooper of his under-
taking to give up other items in order to obtain the wage
increase sought."
After lunch Hobson presented what he called a final
offer . It proposed a freeze on wages and vacation bene-
fits, the elimination of cost -of-living adjustments and sev-
erance pay, wages for new hires being reduced by $3 per
hour, and medical and dental insurance "as proposed."
Cooper responded by claiming that this represented
concessionaire bargaining , and asked where Respondent
put the money it saved , since he had been under the im-
pression that Respondent sought only to keep its eco-
nomic package the same, rather than to save money.
Not only did Respondent not deny that Cooper had made this offer,
it was Hobson who initially testified about this point , and who later but-
tressed it and amplified under cross -examination that the Union had of-
fered to give up some other items if "they could get the St . Louis maybe
.44 or .45 cent package." Hobson was asked:
By Mr . Wamser:
Q. So I guess from that, did he, in fact , tell you he would give up
on other items if he could get that?
A. Yes, he did . Yes, he did.
Thus, I deem it admitted that the Union offered during the second and
final meeting to "move" on "other items" in order to accommodate Re-
spondent's needs in the economic area . Respondent 's unwillingness to
even explore Cooper's offer in order to learn whether or not he was sin-
cere, or what benefits might lay therein for Respondent, bespeaks a desire
to avoid and evade, rather than to reach , agreement on a new collective-
bargaining agreement with the Union.
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hobson told him it was Respondent's final offer, and the
Union could take it or leave it Cooper told him that it
would be voted down if all he wanted was an answer,
but reminded that there were items still to be discussed,
such as job evaluation and safety items. Hobson replied
merely that was Respondent's economic package.
At that, the meeting broke up. Based on this record,
there is no evidence ,that Respondent ever "got back" to
the Union with responses to the several items it had
promised it would.
Cooper, Cecil, and Falconer went from there to the fa-
cility and conducted a vote among the unit's members on
Respondent's final offer. It was unanimously rejected.
The three negotiators then went to Kill's office and
used the phone there to phone the Federal mediator's
office. Both Cooper and Kill spoke to the mediator. At
the end of the conversations (evidently they were carried
out with a certain amount of privacy being afforded
whoever was speaking to the mediator), Kill told Cooper
that he was unable to do anything.
3. The implementation of the final offer
On September 30, Respondent posted a bulletin at the
facility. It stated that, effective the following day, the
"Economic conditions of employment" would be as set
forth in the bulletin The body of the bulletin, following
the letterhead and salutation, read as follows.
1. Insurance as proposed, Medical and Dental.
2. Vacation-All current employees vacation re-
mains the same as old contract.
New Hires-as of 10-1-86.
1 week after 1 year
2 weeks after 2 years
3 weeks after 10 years
3. COLA dropped from contract.
4. Wage Scale:
Job Class 1-$10.50 per hour
Order Filler
Machine Operator
Truck Driver .
Raymond Operator
Job Class 2-$11.145 per hour
Maintenance Men
Panograph Operator
All new' hires as of 10-1-86 $3.00 per hour less,
with $.25 per hour increase every 90 days till maxi-
mum dollar rate m job class is reached
Language as proposed in last offer to apply.
There is no signed contract as of Midnight 9-30-86.
Stephenson-Yost Steel
4. The failure of efforts to bargain further
As you know the employees have turned down
the Company's offer. The employees are going to
continue to work, thus allowing us time to set up
meeting dates to resolve the issues.
The Union is willing to meet with you at any
time. I feel that with the assistance of Federal Medi-
ator Gene Bralley the problems could be quickly re-
solved.
Awaiting your reply, I am
Sincerely,
On October 9 Kill responded, as follows:
Dear Mr. Cooper,
As we stated in our last meeting we have made
you our final offer. We do not have anything fur-
ther to discuss.
Sincerely,
Cooper testified that he thereafter tried unsuccessfully
several times to reach Kill or Hobson by phone, leaving
messages for them to call him, in an effort to schedule
further negotiations. He claimed to have received no re-
sponse and, as a result, to have thereafter confined his
further efforts to contact the Respondent to the interven-
tion of the Federal mediator. Hobson testified that he re-
ceived no messages or other attempts to communicate
from Cooper or any other union representative. Kill
simply testified that he received nothing from the Union.
I resolve this credibility conflict in favor of the version
of events supplied by Cooper, on the basis of his superior
demeanor in testifying.
Despite the breakdown in negotiations, Respondent's
employees continued to work. From all that appears,
they have since worked, when not engaged in a strike,
subject to the terms of the bulletin posted on October 1.
D. The Union's Presence at the Bargaining in Chicago
On May 12 and 13, 1987, Respondent was engaged in
collective-bargaining negotiations at Chicago, Illinois,
with a union representing its employees in a unit located
in Chicago.
Cooper and Cecil appeared at these negotiations and
observed what happened, as did a representative of an-
other union which represented some of Respondent's em-
ployees in a unit located in St. Paul, Minnesota. At the
May 13, 1987 meeting, the representative of the Chicago
union made a proposal to Respondent that somehow in-
cluded common duration dates and wage proposals for
all three units of employees.
No claim is made that either Cooper or Cecil partici-
pated in the Chicago negotiations in any fashion other
than as set forth above.
E. The Strike
On May 16, 1987, having returned from Chicago,
Cooper conducted a meeting of employees from four
separate units at a hall in North Kansas City. He dis-
cussed with them their various options, Le, he told them
On October 1 Cooper wrote to Kill. He stated, in per- they could continue trying to meet with the Company in
tinent part: order to resolve the contract differences, and he told
STEPHENSON-YOST STEEL
them that they could strike to try to force the Company
to the bargaining table. No action was attempted at this
meeting.
After the meeting, Cooper met privately with Falcon-
er and Cecil. They engaged in further discussion of their
options, with the thought in mind that Falconer and
Cecil would relay any news to the employees at Re-
spondent's facility, and then decide what they wanted to
do. According to Falconer he complained at this meeting
that "the working conditions had gotten severely out of
hand . . . and we was shifting men around from job to
job . . . before the job was even completed . . . and one
man was doing the work of two .. . ." He recalled that
Cooper then told him and Cecil that they would have to
take a vote of the men to decide what to do
1. Timing
On May 18, 1987, Cooper called Cecil and learned
that the employees had voted unanimously to strike. In
Cecil's words, they had "had enough stalling," were "fed
up," and wanted to strike
This date coincides with the onset of a strike by the
Respondent's employees in the Chicago unit, and is only
a day or two preceding the onset of a strike by the Re-
spondent's St. Paul employees. The Union's witnesses
claimed that they had not made the decision to strike in
unison with these other unions, but acknowledged that
they were well aware of the strike plans of the other
unions.
The nine employees began to strike on May 20, 1987,
around 6:30 a in, and continued to do so until October 1,
1987.
On both May 20 and 21, 1987, Respondent notified
each employee, in writing, that (paraphrasing), if he re-
mained on strike as of May 27, 1987, his status would be
that of an economic striker, subject to replacement, but
not fired. Each employee was also notified that, until re-
placed, he was welcome to return to his job, and that,
even thereafter, he retained certain job rights.
2. Evidence of the strike's purpose
The decision to strike was made by the employees at a
meeting outside the facility , in its parking lot. The meet-
ing was conducted by Cecil and Falconer after work on
May 18, around 4:30 p.m. It was attended by all nine em-
ployees in the unit.
Cecil credibly testified that he told the men that, "[i]t's
come time for us to make a decision on what we're
going to do now. You know, we can either continue to
work like we have been or we can go on strike and try
to get this settled." He asked for suggestions or com-
ments, but received none. He then asked all those in
favor of continuing to work to raise their hands; no one
did so. Then he asked those in favor of going out on
strike to raise their hands; everyone present raised a
hand. As noted above, he later that evening reported the
results to Cooper by phone.
Falconer credibly testified that he told the others at
the meeting referred to above that "we was here to take
a strike vote to see if we could resolve this contract dis-
pute that we was going under," and that a discussion of
401
the options ensued. Falconer testified that "there was
several items brought up with one man trying to work
two walk-in cranes and one man trying to work the large
20-foot shear, five-eighths shear by himself." He recalled
the affected employees, Richard Circle and John Hays,
bringing up these complaints. He went on to detail that
he then said, "I want a show of hands of those that want
to stay and work under these conditions," and no one
raised a hand But, when he then asked if they wanted to
strike, "I got 100 percent raise of hands for the strike."
No other person testified about the events surrounding
the decision to engage in a strike.
Cooper credibly testified that he supplied the men
with picket signs shortly before the picketing began, on
both may 19 and 20. One such sign, so he also testified,
measured approximately 28 or 30 inches by 12 or 14
inches, and read as follows-
UNFAIR
LABOR
DISPUTE
STRIKE
UNITED
STEEL WORKERS
OF AMERICA
AFL-CIO
Another picket sign supplied by Cooper left out the
first three lines of the first sign, and replaced them with
the word, "ON."
Cooper credibly testified that such, or similar, signs
were carried by the men, or displayed on or about their
vehicles, and even tacked on poles, throughout the
course of the strike. His testimony on this point was cor-
roborated by Cecil and Falconer. It was contradicted,
however, by that of Hobson and Kill. I resolve the
credibility dispute in favor of Cooper, on the basis of his
superior demeanor while testifying.
Cooper testified that he conducted another meeting of
the employees in the facility's parking lot on May 27,
1987 Present were eight employees, plus the Union's
subdirector. The subdirector asked the employees if they
wanted to continue to strike, or to return to work.
Cooper testified that, "There was a vote ... until they
could get the . . . until they could get it resolved or at
least get it back to the bargaining table, they then voted,
eight all, to stay out."
F. The Resumption of Bargaining
On July 9, 1987, the parties met once again. Cooper
testified that he applied for reinstatement unconditionally
on behalf of the employees. He stated that, following dis-
cussion of check-lists of economics and noneconomics,
he said, "Well, there is some other issues that we ought
to discuss, and that is the issues about the strikers." He
stated that he went on to tell Respondent that he could
have the picket signs down on the following day, and
place the employees back to work at 8 a in. He recalled
that Hobson merely responded with a question about
whether he had heard anything from the National Labor
Relations Board, and that he said he had not, but that he
402 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
would put the employees back to work on July 10. He
recounted that he told Hobson that he still regarded the
replacements as unfair and "scabs," but "that they were
not permanent replacements because they did not adver-
tise in the paper nor at any one of their interviews when
they hired the employees, did they ever convey to them
that they was permanent replacements."
Kill responded that they had intended them to be
After fruitless discussion, Hobson stated that they would
have to wait and get the ruling of the NLRB. At that,
Cooper asked if that meant that Respondent intended not
to reinstate the employees on strike, and Hobson stated
that they would just have to wait on the ruling.
By letter of July 16, 1987, Hobson advised Cooper fur-
ther that Respondent's position was that "those people in
the plant" are permanent replacements. He also reiterat-
ed the Respondent's position on wages, i.e., a 3-year
freeze.
On July 22, 1987, Cooper wrote Hobson, among other
things, that the Union had offered on July 9 to have the
employees report back to work on July 10, and had been
met by the Respondent's statement of a desire to wait for
the ruling of the NLRB. No response correcting any al-
leged misrepresentations contained in Cooper's letter was
ever made by Respondent.
No progress has been made in negotiations in the inter-
im since.
G. Analysis and Conclusions
1. The violation of Section 8(a)(5)
a. The failure to bargain in good faith
The obligation to bargain collectively, though never
satisfied by application of rote or formula, is defined in
Section 8(d), set forth above. Yet, difficulties are routine-
ly encountered in the application of that definition to
cases of the sort-detailed above.
For we do not deal here with the sorts of conduct
which are deemed so patently contrary to a genuine
desire to reach agreement that the fact of their occur-
rence will sustain a finding of a per se violation. Actions
that fly in the face of the 8(d) requirements have long
been considered to be per se violations of the Act's bar-
gaining duty, regardless of any other good-faith activi-
ties. For example, if an employer were, during negotia-
tions, to make unilateral increases in wages, changes in a
merit wage policy, and sick leave policy, all of which
are deemed to be "mandatory" subjects for bargaining, it
will be held guilty of a per se violation of Section
8(a)(5). When faced with such a situation, the Supreme
Court said in NLRB v. Katz, 369 U S. 736, 743 (1962):
[A] refusal to negotiate in fact as to any subject
which is within Section 8(d) and about which the
union seeks to negotiate, violates Section 8(a)(5),
though the employer has every desire to reach
agreement with the union upon an overall collective
bargaining agreement and earnestly and in all good
faith bargains to that end.
Moreover, obvious per se violations aside, the courts
consider an employer's entire course of conduct, or the
totality of circumstances, in determining good- or bad-
faith bargaining. The appropriate standard is whether the
circumstances clearly indicate "a desire not to reach an
agreement with the union." NLRB v. Reed & Prince
Mfg., 205 F.2d 131 (1st Cir. 1953). The Board, too, has
followed the "totality of circumstances" standard in
these types of cases. In Atlanta Hilton & Tower, 271
NLRB 1600 (1984), it stated:
[T]he obligation does not compel either party to
agree to a proposal or require the making of a con-
cession. Both the employer and the union have a
duty to negotiate with a "sincere purpose to find a
basis of agreement," but "the Board cannot force an
employer to make a `concession' on any specific
issue or to adopt any particular position." The em-
ployer is, nonetheless , "obliged to make some rea-
sonable effort in some direction to compose his dif-
ferences with the union, if § 8(a)(5) is to be read as
imposing any substantial obligation at all."
It is necessary to scrutinize an employer's overall
conduct to determine whether it has bargained in
good faith. "From the context on an employer's
total conduct, it must be decided whether the em-
ployer is lawfully engaging in hard bargaining to
achieve a contract that it considers desirable or is
unlawfully endeavoring to frustrate the possibility
of arriving at any agreement ." A party is entitled to
stand firm on a position if he reasonably believes
that it is fair and proper or that he has sufficient
bargaining strength to force the other party to
agree.
Although an adamant insistence on a bargaining
position is not of itself a refusal to bargain in good
faith . . . other conduct has been held to be indica-
tive of a lack of good faith Such conduct includes
delaying tactics, unreasonable bargaining demands,
unilateral changes in mandatory subjects of bargain-
ing, efforts to bypass the union, failure to designate
an agent with sufficient bargaining authority, with-
drawal of already agreed-upon provisions, and arbi-
trary scheduling of meetings
Although the Board has recently reaffirmed its stand-
ards for the review of contract proposals in Reichhold
Chemicals, 288 NLRB 69 (1988), it has also announced
its determination to "continue to examine proposals
when appropriate and consider whether, on the basis of
objective factors, a demand is clearly designed to frus-
trate agreement on a collective-bargaining contract." Id.
Here, there are a number of factors that are consistent
with Respondent's argument that it engaged in good-
faith efforts to reach agreement:
(1) Respondents' unblemished record with the Board is
indicative that, at least, Respondent has no proclivity to
violate the Act.
(2) Respondent has not even been charged with, much
less proven guilty of, independent violations of the Act,
which might be indicative of animus.
(3) Respondent entered into negotiations with the
Union with seeming willingness.
STEPHENSON-YOST STEEL
(4) Respondent conducted itself in the negotiation ses-
sions without evident anger or other display of emotion
indicative of either resentment at being required to par-
ticipate, or thinly veiled hostility toward the entire proc-
ess.
(5) Respondent both received and gave proposals to
the Union.
(6) Respondent demonstrated in a number of instances
the ability and willingness to change or modify its posi-
tion.
There are, however, some other factors which are in-
dicative that a contrary desire was harbored by Re-
spondent when it entered into negotiations:
(1) Respondent was not truly the same employer, but
only the purchaser of the employer, which had a history
of approximately seven successive preceding efforts to
compose its differences with its employees (and is there-
fore not entitled to the benefit of the favorable inference
arising from such a lengthy history of good-faith dealings
with the Union).
(2) Respondent's substantive proposals, initially calling,
inter alia, for changing the recognition clause long used,
the union-security and checkoff provisions, the elimina-
tion of fairness procedures for promotion, elimination of
the provisions for cost-of-living adjustments, job evalua-
tions, and severance pay, plus changes in the old griev-
ance-arbitration clause, were scarcely likely to make its
proposal to actually lower or freeze wages for a long
period of time palatable to its employees; that Respond-
ent ultimately called for a freeze on wages and vacation
benefits, the elimination of cost-of-living adjustments and
severance pay, plus a lowered wage package for new
hires, and a medical and dental insurance package al-
ready known to be unacceptable to the Union can easily
be viewed as efforts by it to bring back from the Union
concessions which the Union had won in bargaining of
days long past.
(3) Respondent 's unwillingness to continue negotia-
tions past what was only the second negotiation session,
seems indicative of an unseemly haste to arrive at an
"impasse" in negotiations.
(4) Respondent's unwillingness to even discuss the
Union's offer to make further concessions in order to
meet Respondent's stated objectives in negotiations.
(5) Respondent's failure to ever "get back" to the
Union as promised regarding matters which had been
previously raised in negotiations, and as to which there
was never either agreement or impasse reached (e.g, job
evaluations or disability plan).
(6) Respondent's failure to afford the Union a fair
period of time in which to review Respondent's compre-
hensive proposal
Thus, using the standard announced by both the Board
and the courts, i.e., "the totality of circumstances," the
picture is scarcely crystal clear that either of the compet-
ing points of view is totally "on the side of the angels "
But, I find it compelling, dispositively so, that Re-
spondent's haste to reach the state of impasse apparently
caused it to brush right past a number of possibly reason-
able bases for prolonging negotiations past the second
meeting.
403
For example, no one can say what effect, if any, the
unfortunate illness of the daughter of Respondent's nego-
tiator may have had on the course of negotiations that
day.
Further, while, on the one hand it is indicative of good
faith on the part of Respondent that it modified its posi-
tion on no less that 11 separate items during the course
of the second negotiating session , it seems suspiciously
contrived and preconceived "that the very fact that such
modifications were leading to tentative agreements and
accords would lead to no renewal of hope" by Respond-
ent that further negotiations concerning more important
or fundamental items, such as "economics ," might also
yield to the process of compromise. After all, the whole
negotiation process had scarcely begun, yet progress was
already being made, and continued to be made, right up
to the end of the second session . I do not understand
what made Respondent feel that continuing the process,
however briefly, would prove so futile that it was not
worth even exploring. My suspicion is that Respondent
actually feared that the negotiation process might work,
and felt obliged to bring it to a premature end.
There had been but two meetings before Respondent
declared an impasse , and announced the implementation
of the "final offer." The parties were still in the process
of getting to know one another and feeling each other
out, given the fact that Respondent had taken over the
position of the prior employer. Moreover, there was no
showing, or even an attempt to show, that Respondent
was involved in some emergency situation , making the
need for concessions and implementation more urgent;
certainly there was nothing in this record to explain why
one or two more sessions of negotiations would have
proven harmful to Respondent's interests.
None of this is to say that there is any magic formula
to determine the proper number of negotiating sessions
an employer must engage in before it may logically and
safely declare that further negotiations are deemed futile,
and that the parties at an impasse . It is recognized that
employers have a legitimate . interest in getting on with
business and, at some point, they must be free to face re-
ality
But how is a trier of fact to view an employer that
hears, but apparently ignores, a union announce , during
only its second negotiation session , that it is willing to
meet the employer's previously announced main bargain-
ing objective, i.e., a comparative wage scale with a facili-
ty in St. Louis? As set out above, there is no dispute that
this occurred; Hobson himself testified that Cooper made
this concession to him at the second bargaining session.
Yet, by all that appears, there was absolutely no further
discussion of the matter.
My conclusion and finding from the totality of circum-
stances here, where the "last circumstance" is the em-
ployer's "brush off' of the union 's professed willingness
to meet its most important negotiating objective, is that
the employer was not truly interested in agreement, but
only in impasse , in order to privilege its imposition of re-
vised provisions of wages, hours, and working condi-
tions.
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
This, of course, quite obviously fails to meet the stand-
ard set forth in Section 8(d) of the Act and, for that
reason , is violative of Section 8(a)(5) and (1) of the Act.
I so find and conclude.' o
b. The claimed impasse in negotiations
Since the Board 's decision in Taft Broadcasting Co.,
163 NLRB 475 (1967), certain "first principles" have
been repeatedly drawn therefrom , as follows:
An employer violated his duty to bargain if,
when negotiations 'are sought or are in progress, he
unilaterally institutes changes in existing terms and
conditions of employment. On the other hand, after
bargaining to an impasse , that is, after good-faith
negotiations have exhausted the prospects of con-
cluding in agreement , an employer does not violate
the Act by making unilateral changes that are rea-
sonably comprehended within his pre-impasse pro-
posals:
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of
the parties in negotiations , the length of the negotia-
tions, the contemporaneous understanding of the
parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an im-
passe in bargaining existed.
Here, in applying these principles , I have no alterna-
tive but to find and conclude, as I do, that no genuine
impasse ever existed in this case . For, as I have already
set out ; the claimed impasse was contrived , rather than
real.
It seems a reasonable conclusion that it was deemed a
desirable end by Respondent because, as stated by the
Supreme Court in Taft , while an employer is normally
not free ' to unilaterally change previously negotiated
terms and conditions-of employment , it becomes so if it
can be said that good-faith negotiations have led to a
genuine impasse. Thus, such an employer is free to
impose his own terms and conditions of employment, an
obvious, and tempting , economic benefit to an employer.
Having found that no legally cognizable impasse ever
existed , I-am necessarily led to also find and conclude, as
I do, that the repeated refusals , or failures to respond af-
firmatively to the Union 's demands (in person, by letter,
or relayed through the Federal mediator ), as well as the
implementation of the Respondent 's "final offer," were
impermissible . Further, I find that Respondent's imple-
io I note here that I do not agree with the argument of Respondent
that the evidence is sufficient to demonstrate that the Union engaged in
"concerted bargaining" with the local unions from Chicago or St Paul
On the other hand, I would not conclude that it was mere coincidence
which led to the presence of the Union at the negotiations in Chicago, or
which prompted the timing of the strike But Respondent has not pointed
out, nor could it, any authority holding that a Union must behave stupid-
ly, as if it operates in a vacuum , when it decides about the best time to
exert its economic leverage , or that a strike must be caused "purely" by
unfair labor practices , in order to retain the Act's protection for strikers
who engage in strikes characterized as "unfair labor practice strikes "
Accordingly, I find such conduct to have had no legal significance in
the outcome of this case
mentation of its "final offer" " i constituted unilateral
changes in wages, hours, and working conditions which
must be rescinded until and unless they have been sub-
jected to good -faith bargaining resulting in a valid im-
passe . Finally, I find that by each of the above-described
actions Respondent has violated Section 8(a)(5) of the
Act. I shall provide an appropriate remedy for each such
violation.
2. The violation of Section 8(a)(3)
a. The nature of the strike
The Union conducted several strike votes. The record
is uncontradicted that on each such occasion the vote
was preceded by a certain amount of discussion among
the affected employees , and that on each such occasion
the employees , or at least some of them , determined to
engage in , or to continue to engage in, strike activity be-
cause of a desire to compel Respondent to "return to the
bargaining table ." For example:
(1) Falconer credibly testified that he told the others at
a meeting on May 18, 1987 , that , "we was here to take a
strike vote to see if we could resolve this contract dis-
pute that we was going under ," and that a discussion of
the options ensued. Falconer testified further that "there
was several items brought up with one man trying to
work ' two walk -in cranes and one man trying to work
the large 20-foot shear, five-eighths shear by himself."
He recalled the affected employees , Richard Circle and
John Hays, bringing up these complaints He went on to
detail that he then said , "I want a show of hands of those
that want to stay and work under these conditions," and
no one raised a hand . But, when he then asked if they
wanted to strike, "I got 100 percent raise of hands for
the strike."
(2) Cooper credibly testified that on May 27, 1987, the
Union's subdirector asked the employees if they wanted
to continue to strike, or to return to work . Cooper testi-
fied further that, "There was a vote .. . until they could
get the . . . until they could get it resolved or at least
get it back to the bargaining table, they then voted, eight
all, to stay out."
Moreover, there was other credible evidence of the
intent of employees in engaging the strike . Cooper credi-
bly testified that he supplied the men with picket signs
shortly before the picketing began , and that many of
these signs made prominent reference to an "UNFAIR
LABOR DISPUTE." Cooper also credibly testified that
such signs were displayed throughout the course of the
strike . His corroborated testimony on this point has been
found superior to that of contradictory testimony sup-
plied by Hobson and Kill.
My conclusion from all of this is that the primary
focus of the employees ' decision to strike was to protest
the failure and refusal of Respondent to bargain further,
or in good faith . The evidence also tends to establish that
the implementation of the unilateral changes contributed
to the failure of the parties to earlier resolve their differ-
i i Counsel for the General Counsel has effectively conceded that Re-
spondent 's implementation did not illegally differ from its previous pro-
posals
STEPHENSON -YOST STEEL
ences that had led to the strike. Since I have found the
failure to bargain in good faith, merely engaging in "sur-
face bargaining," to have been the very essence of the
unfair labor practices committed by Respondent, it nec-
essarily follows that I should, as I do, also find and con-
clude that the strike was caused and prolonged by unfair
labor practices of Respondent, because the evidence re-
ferred to above clearly establishes the necessary " causal
connection" between the very unfair labor practices I
have found to have been committed and the employees'
decision to engage in and/or remain on strike. Buffalo
Concrete, 276 NLRB 839, 841 (1985), Tufts Bros., 235
NLRB 808, 811 (1978); Typoservice Corp., 203 NLRB
1180 (1973); compare Burlington Homes, 246 NLRB 1029
(1979).
I agree with the argument made by counsel for the
General Counsel that the fact that the employees delayed
going on strike until it would be most likely to have an
adverse economic impact on Respondent is scarcely in-
dicative that the unfair labor practices of Respondent
were not the cause behind the decision to strike. Matlock
Truck & Trailer Corp., 217 NLRB 346, 355 (1975).
"Timing is significant, but not conclusive in establishing
the basis for a strike." Burns Motor Freight, 250 NLRB
276, 277-278 (1980).
b. The demand for and the refusal of reinstatement
Cooper's verbal requests while meeting with Respond-
ent's negotiators on July 9, 1987, together with his letter
of July 22, 1987, were, in my opinion, sufficiently clear
to convey the then-current desire of employees to return
unconditionally to their former positions of employment.
Such requests may be ignored by an employer at its
own peril, even if they are made collectively for all em-
ployees by the union's representative, as they were here.
Colonial Haven Nursing Home, 218 NLRB 1007, 1011
(1975). Certainly, such requests are ample to modify the
previously stated position that they desired reinstatement
only if the permanent replacements were first discharged.
Respondent argues in its brief that, "[b]oth sides
agreed that the issue [of whether employees were enti-
tled to reinstatement] would have to await determination
by the NLRB." I cannot agree. For, as set forth above, I
have also determined that the striking employees were
unfair labor practice strikers, and not economic strikers,
as argued by Respondent. Unfair labor practice strikers
are entitled to immediate reinstatement on application,
without regard for whether or not their positions have
been filled by replacements. Stuart Radiator Core Mfg.
Co., 173 NLRB 125, 126 (1968). Although I find no am-
biguity in the overall words of Cooper, whether in
person or in writing, when he requested reinstatement
for all employees on July 9, and again on July 22, 1987,
even if I were to do so it would not excuse Respondent,
for an employer which receives a request for reinstate-
ment which it considers to be ambiguous bears the
burden of requesting clarification to resolve any doubts
about the true nature of the request. Hadden House Food
Products, 242 NLRB 1057, 1058 at fn. 6 (1979). It is not
claimed that the Respondent ever did so.
Accordingly, I find and conclude that Respondent vio-
lated Section 8(a)(3) of the Act when it failed and re-
405
fused to return all striking employees to their former po-
sitions upon receipt of their unconditional offers to
return to work first conveyed by Cooper on July 9,
1987, and repeated thereafter, until12 the employees
were actually reinstated on October 1, 1987. I shall pro-
vide an appropriate remedy for these violations.
CONCLUSIONS OF LAW
1. 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. All production and maintenance employees em-
ployed by Respondent at its facility located in North
Kansas City, Missouri , including truckdrivers whose
headquarters are at said plant, excluding, however, office
and clerical employees, supervisors, watchmen, office
janitors and porters constitute a unit appropriate for col-
lective bargaining within the meaning of Section 9(b) of
the Act.
4. At all times material the Union has been the exclu-
sive collective-bargaining representative of all the em-
ployees in the unit described above by virtue of Section
9(a) of the Act.
5 By failing and refusing to engage in good-faith ne-
gotiations, by engaging in "surface bargaining" without
the intent to reach an agreement, by avoiding and evad-
ing an agreement, by declaring the existence of an im-
passe in negotiations in order to be able to unilaterally
implement changes in the wages, hours, and working
conditions of employees, by actually implementing the
terms and conditions of an outstanding proposal at a time
when no genuine impasse existed, and by like and related
conduct Respondent has violated Sections 8(a)(5) and (1)
and 8(d) of the Act.
6. By failing and refusing to grant timely reinstatement
to unfair labor practice strikers on their unconditional re-
quest to return to work, Respondent violated Section
8(a)(3) and (1) of the Act.
7. The strike of Respondent's employees which took
place between May 20 and October 1, 1987, was an
unfair labor practice strike, and the employees who par-
ticipated in the strike were unfair labor practice strikers.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find that it must be ordered to
cease and desist and to take certain affirmative action de-
signed to effectuate the policies of the Act.
1E Respondent's argument that it should be excused, at least in part, be-
cause two employees were offered job openings at a bargaining session of
August 20, 1987, is without merit The offer(s) were clearly part of a
contract proposal, a portion of which was "economic package as pro-
posed," the old proposal which called for abolition of company-owned
trucks and trailers Thus, there was nothing "unconditional" about these
"offers", as a result , they were ineffectual to toll backpay Thor Power
Tool Co, 148 NLRB 1379, 1390 (1964), and Cooperative Decredito y
Ahorro Vegabojena, 261 NLRB 1098, 1100 (1982)
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Having found that Respondent violated Section 8(a)(5)
and (1) of the Act by engaging in surface bargaining, by
implementing unilateral changes in the wages, hours, and
working conditions of its employees at a time when no
genuine impasse existed, and by like and related conduct,
it shall be required that Respondent, on request, bargain
with the Union as the exclusive representative' of the em-
ployees in the , appropriate unit concerning terms and
conditions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment; further, it shall be required that, on the Union's re-
quest, and consistent with this decision, Respondent re-
scind any unilateral changes made effective on and after
September 30,. 1986, and, consistent with this decision,
continue to give effect to those terms and conditions of
employment previously in effect at its facility in North
Kansas City, Missouri, for the employees in the previous-
ly described unit, until Respondent and the Union reach
a good-faith impasse, execute a new collective-bargaining
contract, or the Union refuses to bargain in goodfaith.
Consistent herewith, Respondent shall be required to
make employees whole for any losses they may have suf-
fered by virtue of its unlawful unilateral changes in their
wages, hours, and working conditions.
Having found that Respondent failed and refused on
July 10, 1987, on their unconditional request to return to
work, to reinstate its striking employees, it shall be re-
quired that Respondent 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 in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). See generally Isis Plumb-
ing Co., 138 NLRB 716 (1962).
Respondent shall also be required to expunge from its
files all references to its unlawful refusal to reinstate its
striking employees on their unconditional offer to return
to work on July 10, 1987, and to notify them in writing
of this expunction, and that said action or notations on
their personnel files shall not be used as a basis for future
personnel actions concerning them. See Sterling Sugars,
261 NLRB 472 (1982).
On these findings of fact and conclusions of law' 3 and
on the entire record, I issue the following recommend-
ed''
ORDER
The Respondent, Lapham-Hickey Steel Corporation
d/b/a Stephenson-Yost Steel, North Kansas City, Mis-
souri, its officers, agents, successors, and assigns, shall
1. Cease and desist from
1' All outstanding motions inconsistent with this Order are hereby
overruled
14 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules , be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) Refusing to bargain collectively, on request, con-
cerning rates of pay, wages, hours, and' other terms and
conditions of employment, in good faith, with United
Steelworkers of America, District 34 (the Union), which
is the exclusive bargaining representative for employees
in the following appropriate unit:
All production and maintenance employees em-
ployed by Respondent at its facility located in
North Kansas City, Missouri, including truck driv-
ers whose headquarters are at said plant, excluding,
however, office and clerical employees, supervisors,
watchmen, office janitors and porters.
by engaging in surface bargaining without real effort or
intent to attempt to reach agreement with the representa-
tive of our employees, by such means as declaring that
an impasse in negotiations exists when no genuine im-
passe exists, by implementing unilaterally the terms of an
outstanding contract proposal, thereby effecting changes
in the terms and conditions of employment of our em-
ployees without having first engaged in good-faith nego-
tiations in a genuine effort to reach agreement on the
terms and conditions of our employees' wages, hours,
and working conditions.
(b) Refusing to reinstate its unfair labor practice strik-
ers pursuant to their unconditional offer to return to
work.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the following appro-
priate unit concerning terms and conditions of employ-
ment and, if an understanding is reached, embody the un-
derstanding in a signed agreement. The appropriate unit
is:
All production and maintenance employees em-
ployed by Respondent at its facility located in
North Kansas City, Missouri , including truck driv-
ers whose headquarters are at said plant , excluding,
however, office and clerical employees, supervisors,
watchmen , office janitors and porters.
(b) Offer the employees named below, if it has not al-
ready done so, immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or any other rights or privileges previously en-
joyed, and make them whole for any loss of earnings and
other benefits suffered as a result of Respondent's failure
to honor their requests to return to work from an unfair
labor practice strike, in the manner set forth in the
remedy section of the decision, dismissing, if necessary,
any employees hired on or after May 10, 1987, when the
unfair labor practice strike began. The names of the em-
ployees entitled to these rights are:
Fred Aldrich Kenny Hawkins
STEPHENSON-YOST STEEL
Harold Cecil Cal Monroe
Richard Circle Ike Pinaire
Doug Falconer Brad Strange
John Hays
(c) Remove from its files any references to the unlaw-
ful refusals to reinstate , and provide the affected employ-
ees, in writing , assurance that it has done so, and that its
action against them will never be used against them in
the future in any way
(d) Preserve and, on request , make available to the
Board or its agents for examination and copying , all pay-
roll records and reports , and all other records necessary
to analyze the amount of backpay due under the terms of
this recommended Order.
(e) Post at its offices in North Kansas City, Missouri,
copies of the attached notice marked "Appendix." 15
Copies of the notice , on forms provided by the Regional
Director for Region 17, after being signed by the Re-
spondent '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 Respondent to
ensure that the notices are not altered , defaced , or cov-
ered by any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
15 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice
Section 7 of the Act gives employees these rights.
To organize
To form, loin, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion and
To choose not to engage in any of these protect-
ed concerted activities.
407
WE WILL NOT refuse to bargain collectively in good
faith concerning rates of pay, wages, hours, and other
terms and conditions of employment with United Steel-
workers of America, District 34 as the exclusive collec-
tive-bargaining representative for our employees in the
following appropriate unit:
All production and maintenance employees em-
ployed by us at our facility located in North Kansas
City, Missouri , including truck drivers whose head-
quarters are at said plant, excluding, however,
office and clerical employees, supervisors, watch-
men, office janitors and porters.
WE WILL NOT engage in surface bargaining in an
effort to avoid or evade agreement with the collective-
bargaining representative of our employees, or in an
effort to arrive at an "impasse" in negotiations, and so
that we may thereby be enabled to implement unilateral
changes in the wages, hours, and working conditions of
our employees.
WE WILL NOT unilaterally alter any of the terms and
conditions of employment of our employees in the
above-described bargaining unit.
WE WILL NOT discourage membership in or activities
on behalf of the above-named, or any other, labor orga-
nization by refusing to reinstate unfair labor practice
strikers, or by otherwise discriminating against employ-
ees in their hire or tenure.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL offer full and immediate reinstatement to
their former or substantially equivalent positions to any
unfair labor practice striker who had not been reinstated
on or before October 1, 1987, and WE WILL make them
whole for any loss of pay or benefits which they have
suffered by reason of the discrimination practiced against
them, with interest
WE WILL provide assurance in writing to each of the
employees who engaged in the unfair labor practice
strike against us that we have removed all references to
our refusal to reinstate them in a timely manner, and WE
WILL also assure them that we will never use any infor-
mation in any such references against them in any way in
the future. The affected employees are:
Fred Aldrich Kenny Hawkins
Harold Cecil Cal Monroe
Richard Circle Ike Pinaire
Doug Falconer Brad Strange
John Hays
LAPHAM-HICKEY STEEL CORPORATION
D/B/A STEPHENSON-YOST STEEL