Thill, Inc.

National Labor Relations Board - Board Decisions

May 31, 1990

298 N.L.R.B. 669 (N.L.R.B. 1990)

THILL, INC. 669
Thill, Inc. and International Union , United Automo-
bile, Aerospace and Agricultural Implement
Workers of America (UAW). Cases 30-CA-
6608 and 30-CA-6765
May 31, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND OVIATT
On March 11, 1983, Administrative Law Judge
Karl H. Buschmann issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' and the General Counsel filed an answering
brief.2
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions to the extent consistent with this Deci-
sion and Order.
1. Interrogations. The administrative law judge
found, and we agree, that the Respondent coer-
cively interrogated several of its employees in vio-
lation of Section 8(a)(1),of the Act.
As more fully set forth in the judge's decision,
the Union filed a petition on December 24, 1980,
was certified on March 12, 1981,4 and the first bar-
gaining session occurred on April 13. On June 24,
Foreman Mark Maples approached one of the
Union's stewards, Timothy Neubauer, and asked
him how much the Union was "trying to get" and
"how much money" would be sufficient to "satisfy
[him] in a contract." Maples also asked whether
Neubauer could "afford to go on strike." About
the same time, Maples made separate approaches to
employees Charles Daker and Steven Albright at
their work stations, asking each whether he would
go out on strike. Maples also asked Daker whether
he thought the employees could afford to go out
on strike, considering their complaints that they
were, "hurting" because of a 15-percent pay cut
that had been imposed on them in December 1980.
i The Respondent moved to amend its brief to clarify the numbering of
exceptions and its position The motion is denied The Respondent has
requested oral argument. The request is denied as the record, exceptions,
and briefs adequately present the issues and the positions of the parties
2 The General Counsel filed an opposition to the Respondent' s motion
to amend brief
3 The Respondent has excepted to some of the judge's credibility find-
ings . The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
4 All dates hereafter are in 1981 unless otherwise identified.
Maples essentially admitted to these and other in-
terrogations, testifying that he might have ques-
tioned as many as five employees, including Neu-
bauer, Daker, and Albright, although he character-
ized his questions as focusing on why they were
not satisfied with the Respondent's contract pro-
posals and whether they wanted more money or
benefits.
We find that Foreman Maples' interrogations
violated Section 8(a)(1) of the Act because they
amounted to singling out unit members one by one,
and questioning them behind the back of their
elected collective-bargaining representative, about
either their personal bottom-line positions on an ac-
ceptable collective-bargaining agreement or their
readiness to engage in a strike in support of the
Union's bargaining position, or both. See, e.g., Van
Dorn Plastic Machinery Co., 265 NLRB 864, 885-
886 (1982), enfd. in pertinent part 736 F.2d 343, 350
(6th Cir. 1984), cert. denied 469 U.S. 1208 (1985);
Cagle's Inc., 234 NLRB 1148, 1150 (1978), enfd. in
pertinent part 588 F.2d 943 (5th Cir. 1979). See
also Central Broadcast Co., 280 NLRB 501, 503
(1986) (finding coercive interrogation in supervi-
sor's inquiry into union's strategy for opposing dis-
criminatory actions by employer). In so finding, we
note that systematic questioning occurred, rather
than a single isolated incident, that each employee
was approached as an essentially captive audience
at his work station, and that the questioning ap-
peared to be aimed at ferreting out differences in
viewpoints between the employees and their elect-
ed representative. In view of all these circum-
stances,' we find that a violation is established
under the test set forth in Rossmore House, 269
NLRB 1176 (1984), affd. sub nom. Hotel & Restau-
rant Employees Local 11 v. NLRB, 760 F.2d 1006
(9th Cir. 1985).5
2. Discriminatory warnings to union activists. We
also agree with the judge that the Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discri-
minatorily issuing a written reprimand to Timothy
Neubauer on, June 19 and issuing a verbal warning
to Beverly Solomon on July 22.
Neubauer, a union shop steward who was out-
spoken in meetings between the employees and
management; was ostensibly reprimanded for an in-
cident in which he allegedly turned off a gas valve
on a forklift. The credited evidence shows, howev-
er, that the Respondent did not know for sure
whether Neubauer had turned off the valve, did
not question employee Steven Sprout, who was in
5 We do not, however, rely on the judge's finding that some employees
kept lists of Maples' questions to submit to the Union as demonstrating
that "the employees felt restrained "
298 NLRB No. 90
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the' best position to observe what, if anything, had
occurred, and finally gave Neubauer a warning for
"horseplay," which the Respondent now contends
in its brief was for appearing to turn off a gas
valve. There was no evidence that any employee
had ever been disciplined for such an incident, and
Neubauer had never previously received a warning
of any kind. This warning was accompanied by a
threat that a second similar offense would result in
discharge.
Solomon had been active in the Union's organiz-
ing campaign , was a member of the Union's collec-
tive-bargaining committee, and was very vocal on
behalf of employees in meetings with management
concerning restoration of the December 1980 pay
cut. After making a telephone call from a shipping
office telephone during each of two of her breaks
on July 22, Solomon received a written warning
for a "non-emergency use" of the telephone "with-
out authorization."
The Respondent argues that the two calls violat-
ed a rule in its employee handbook under the head-
ing, "Personal Telephone Calls." In fact, the rule is
unclear as to the status of calls on breaktime. Al-
though initially stating that "[p]ersonal calls are to
be confined to those of necessity and emergency,"
the rule then describes procedures for delivering
incoming messages to employees so that they can
make "call backs," notes that pay telephones have
been installed for employee use, and that "in the
case of an emergency call," the employee "will be
paged to an office and immediately directed to a
Company phone." The references to "call backs"
and pay telephones indicate that the first sentence
should not be read as a limit on all employee tele-
phone calls, and an employee might fairly read the
rule as indicating that, as to emergency calls, he
could be called from his work station to take them
immediately on a company telephone, but that such
arrangements are not made for other types of tele-
phone calls. Although there is also a suggestion
that perhaps, the nonemergency callbacks were to
be made only on the pay telephones, this is not
spelled out. Thus, read as a whole, the rule on
which the Respondent relies is not squarely incon-
sistent with the credited testimony of both Solo-
mon and employee Sandy John that, prior to July
22, they had used the office telephone without per-
mission during breaktime for nonemergency calls
and that they understood this to be the accepted
practice. That such a tacitly accepted practice had
existed until the Respondent decided to issue a
warning to this union activist is supported by Solo-
mon's undisputed testimony that when she com-
plained about the warning to Company Superin-
tendent Jack Guhl, stating that she knew that three
other- employees had made telephone calls the same
day "and nothing was said to them," Guhl merely
replied that there was "a rule in the handbook
against using the telephone" and did not either seek
to learn the identities of the employees mentioned
by Solomon or specifically dispute Solomon's inter-
pretation of the rule.
We agree with the judge's implicit conclusion
that the record supports an inference that these em-
ployees' union activities were the real reason for
the issuance of warnings to them and that the as-
signed reasons were mere pretexts. In particular we
rely on the Respondent's knowledge of their union
activities, its manifest hostility to the Union and the
collective-bargaining process, and the singling out
of these two for warnings on the basis of conduct
for which no other employee had ever been
warned. These findings establish a violation of Sec-
tion 8(a)(3) and (1) under the rule of Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir.
1981), cert. denied 455 U.S. 989 (1982), as ex-
plained in Limestone Apparel Corp., 255 NLRB 722
(1981).
3. Unilateral change in insurance benefits. The
judge found that on July 1, the Respondent' in-
formed its employees through a memorandum
given to them, without prior notice to the Union,
that the Respondent had changed insurance carri-
ers effective that date. As a consequence, the
memorandum explained, benefits would be im-
proved, with a slight increase in the premiums to
be paid by employees, and all claims initiated after
the July 1 effective date would be processed by the
new carrier. The Union's negotiating team was in-
formed of this change on July 6. Although the Re-
spondent on that date expressed its willingness to
talk about the change, the' Union declined to do' so
because it viewed the change as a fait accompli.
We agree with the judge that the Union could
not be faulted for failing to request bargaining
simply because there was a 30-day grace period ex-
tending to the end of that month in which the new
policy could be canceled. The Respondent did not
communicate that fact, and the Union reasonably
believed that it had been notified of a change that
had already occurred. The judge found, and we
agree, that the unilateral change was a violation,
under Section 8(a)(5) and (1) of the Act, of the
duty to bargain in good faith.
4. Unlawful conduct related to the 15 percent pay
cut and other direct dealing violations. The judge
found, and we agree, that' the Respondent violated
Section 8(a)(5), (3), and (1) of the Act by its ac-
tions and statements concerning a 15-percent pay
cut that was announced in December 1980, to
become effective on January 1, and that was re-
THILL, INC 671
stored on July 1 only for the Respondent's non-
union employees.
According to credited evidence, the Respond-
ent's president, Russell Thill, declared at the time
that the pay cut was announced that, unless the
Respondent was forced out of business in the inter-
im, the cut was temporary and would be restored
for all employees on July 1. Hence, restoration of
the 15-percent cut on that date- was an existing con-
dition of employment for all the employees and not
something that would have to be negotiated with a
collective-bargaining representative. See NLRB v.
United Aircraft Corp., 490 F.2d 1105, 1109 (2d Cir.
1973), modified 86 LRRM 2448 (1974) (scheduled
future wage increase an existing term of employ-
ment). Nonetheless, the Respondent restored the
cut only for the nonunion employees on July 1,
contending that it was negotiable for those who
had selected the Union. The Respondent thereby
discriminated against the unit employees on the
basis of their choice of union representation, in vio-
lation of Section 8(a)(3) and (1) of the Act; and be-
cause the Respondent denied them the pay restora-
tion unilaterally,' bypassing the Union, it also vio-
lated Section 8(a)(5) and (1) of the Act. Eastern
Maine Medical Center, 253 NLRB 224, 242-243
(1980), enfd. 658 F.2d 1, 7-10 (1st Cir. 1981);
NLRB v. United Aircraft Corp., supra, 490 F.2d at
1109-1110.6
The Union correctly and consistently took the
position that the employees were entitled to the
pay restoration on-July 1 and did not need to bar-
gain to obtain it. The Respondent, through meet-
ings conducted with employees in August by Presi-
dent Thill and through comments later made by
members of management when the pay cut was fi-
nally restored to the unit employees, falsely sug-
gested that the Union had been ' saying "no" at the
bargaining table to a restoration of the pay cut and
was therefore to blame for the employees' reduced
pay.
During the August meetings with the employees,
President Thill ' also invited the employees to dis-
cuss with him any other problems (in addition to
the pay cut) they had with their jobs. He criticized
the Union's bargaining table positions and urged
the employees to tell the union representatives to
quit "dragging their feet" by "taking up too much
time" with matters Thill thought unimportant (e.g.,
the grievance procedure and dues checkoff) and to
"get down to the serious matters."
6 As Member Cracraft agrees with the finding that the failure to re-
store the 15-percent wage cut to employees in July 1981 violated Sec
8(a)(3) of the Act and this fully remedies the violation under either
theory, she finds it unnecessary to pass on the finding that the Respond-
ent violated Sec 8(a)(5) by failing to bargain over the restoration of the
15-percent pay cut.
The foregoing conduct violated Section 8(a)(5)
and (1) of the Act because it constituted solicitation
of grievances, direct dealing with employees over
working conditions, and denigrating the Union in
the eyes of the employees through mischaracteriza-
tion of its bargaining position.''
5. Bad faith conduct at the bargaining table. The
judge found that the Respondent violated Section
8(a)(5) and (1) of the Act through certain bargain-
ing table conduct. We agree with respect to the
findings that the Respondent failed to incorporate
agreed-on provisions in written drafts during the
course of bargaining and in what it proffered as its
final offer, insisted on a union-security clause that
could reasonably be read as barring any kind of
union activity by employees on company premises
during nonworktime and, after December 15, re-
fused without justification to meet with the Union
for bargaining.8
a. The parties bargained in 26 sessions over a
period of 8 months, beginning on April 13 and
ending on December 15, when the Respondent sub-
mitted its final offer and thereafter declined to
engage in any further bargaining. Progress toward
reaching agreement was impeded in part, as the
judge found, by the Respondent's reneging on ear-
lier agreements9 and its failure to include agreed-
on provisions in its written revised offers. These
drafting omissions were not de minimis typographi-
cal errors but concerned matters of importance to
the employees, such as the conditions under which
' We do not, however, adopt the judge's finding of an unlawful threat,
prior to the election, to make the wage cut restoration negotiable if the
Union won No such threat was either alleged in the complaint or litigat-
ed at the hearing Neither do we find a violation in the Respondent's res-
toration of the pay cut in October, as did the Judge, because the Re-
spondent was legally obligated to restore the pay cut What was unlawful
was the failure to restore the cut earlier and the misleading comments
made about who was to blame for that failure We have modified the rec-
ommended Order accordingly
8 The judge found that the Respondent violated its duty to bargain in
good faith by giving insufficient authority to its bargaining representa-
tives, taking an inflexible position toward the issue of union security, and
restricting the time and duration of bargaining sessions . We find, under
the circumstances of this case, that the General Counsel did not establish
by a preponderance of the evidence that the Respondent 's conduct with
regard to the allegations noted above violated Sec 8(a)(5) of the Act
With respect to the finding that the Respondent insisted on a 60 -day con-
tract termination provision , we note that the Respondent 's final offer con-
tained no such provision Rather, it provided that the contract would
remain in effect until December 15, 1982 (i.e., a proposed 1-year term)
and would "continue thereafter for successive periods" unless either
party gave notice 60 days "prior to the expiration date , or any yearly an-
niversary date thereafter " This is a standard contract termination provi-
sion geared to Sec 8(d) of the Act Thus, we agree with the Respond-
ent's contention that the record does not support the judge's finding in
this regard We are modifying the recommended Order to eliminate the
foregoing findings of unlawful conduct
9 For example, the parties had agreed on a contractual provision that
the Union would make best efforts to secure volunteers to work overtime
when needed, but that overtime would not be mandatory The Respond-
ent subsequently submitted a letter from President Thill imposing condi-
tions inconsistent with the no -mandatory-overtime agreement.
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
prior or subsequent absences would disqualify em-
ployees for holiday pay, the amount of time for
filing grievances, and how soon a laid-off employee
would be removed from the seniority list.'0 Al-
though the Respondent did finally correct some of
these errors when they were called to its attention
by the union negotiator, the corrections were
made only after the Union had filed an unfair labor
practice charge concerning the problem. The initial
omissions and the delays in making corrections
made it difficult for the parties to determine where
negotiations stood in any given bargaining session,
and necessitated needless and time-consuming dis-
cussions of matters already settled. Finally, we note
that, after the error in the drafting of the proposal
on holidays was called to the Respondent's atten-
tion, the Union did-in November-submit written
language (G.C: Exh. 95(b)) embodying 'what, ac-
cording to Lepianka's credited testimony, had been
the parties' agreement in June. In particular, Le-
pianka testified that on June 9, the Respondent had
grudgingly agreed to put into the contract its cur-
rent practice-allowing employees to be paid for a
holiday even if they were absent on the days
before or after or both, so long as they had a note
from a doctor or a lawyer attesting to, respective-
ly, an illness or a required court appearance that
necessitated their absence. Yet the Respondent still
omitted any such qualifying language from the final
proposal it submitted in December.
b. We also agree with the judge that the Re-
spondent insisted to impasse on an illegal proposal
when it included in its final proposal a provision
entitled "Union Security" that contained a section
prohibiting (solicitation, dues collection, or "any
other Union activity on Company time, except as
expressly permitted by the Company work rules."
The Respondent properly does not argue that
"Company time" is a clear equivalent of "working
i° According to the testimony of the Union's chief bargaining repre-
sentative, Bernard Lepianka, who was generally credited by the judge,
the Union had asked the Respondent to be responsible for typing up
agreed-on provisions because Lepianka's only available office assistance
was a secretary who worked 4 hours a day and who had duties other
than helping with the bargaining at the Respondent's establishment The
Respondent agreed to this arrangement We further note that , in explain-
ing why the Respondent did not wish ever to bargain for 2 days in a
row, as the union requested, Superintendent Guhl, who was on the Re-
spondent's bargaining committee, testified that the Respondent wanted to
allow a generous amount of time for careful bargaining preparation Al-
though we do not find a manifestation of bad faith in the Respondent's
refusal to meet more frequently, we note that the lengthy intervals be-
tween bargaining sessions, which occurred at the Respondent's request,
undermine the Respondent 's suggestion that its errors in drafts of tenta-
tive agreements (which Guhl admitted were sometimes repeated even
after the Union had pointed them out) were mere accidents. Contrary to
our dissenting colleague, given this procedural agreement for the negotia-
tions, we would not find that the impediment to bargaining occasioned
by these errors should be partially imputed to the Union because it failed
to step in and take over a duty the parties had agreed would be that of
the Respondent
time" and therefore a permissible restraint on
union-related communications between employees.
See Our Way, Inc., 268 NLRB 394 (1983). See also
NLRB v. -Magnavox Co., 415 U.S. 322 (1974), re-
hearing denied 416 U.S. 952 (1974). Rather, it as-
serts that the inclusion of the reference-to-work
rules makes this a legal prohibition. i a We disagree.
The work rule on which the Respondent relies is
couched as a prohibition rather than an express
permission, so even if it is presumptively valid, it
does not necessarily clarify the contractual provi-
sion . Moreover, work rules were committed to the
Respondent' s sole discretion under the manage-
ment-rights clause in its final proposal, so making
the contractual provision subject to work rules did
not assuredly and unequivocally remedy its defect.
c. Finally, we agree with the judge that the Re-
spondent also manifested bad faith through its re-
fusal to meet with union negotiators after the De-
cember 15 bargaining session , despite the Union's
repeated requests for further bargaining. Because,
as explained below, the December 15 "final offer"
was a culmination of bargaining that did not meet
the obligation to bargain in good faith, no valid im-
passe existed that might suspend even temporarily
the Respondent's bargaining obligation. Taft Broad-
casting Co., 163 NLRB 475, 478 (1967).12
6. Overall bad faith bargaining. We agree with
the judge's finding of overall bad-faith bargaining
on the basis of the disruptive conduct regarding
settled issues , the insistence on an unlawful no-so-
licitation provision, the refusal to meet with the
Union after December 15, the interrogations, the
discriminatory warnings, the unilateral change in
insurance benefits, the discriminatory refusal to re-
store the 15-percent pay cut, and the direct dealing
on that and-other matters. All this conduct was cal-
culated to undermine the Union in the eyes ' of the
employees and unfairly weaken its bargaining
strength.
The interrogations-which took place only a few
months after the Union was certified, when it was
still in the position of trying to establish credibility
as a bargaining representative-represented at-
tempts to sound out employees on possible dis-
agreements with the Union's position at the bar-
gaining table. Moreover, Foreman Maples' taunt to
employee Daker concerning his financial ability to
go out on strike when the employees were "hurt-
ing" from the earlier 15-percent pay cut presaged
I I We note that this is the only ground on which the Respondent has
excepted to the judge's finding concerning the provision restricting union
activity
12 Therefore, although we agree that the refusal to meet after Decem-
ber 15 was a violation of Sec 8(a)(5), we do not agree with the judge
that that refusal "created an impasse "
THILL, INC. 673
the Respondent's dual strategy in the ensuing
months of giving the 15-percent back to nonunit
employees and telling the unit employees that the
Union was responsible for their continuing to
endure the lower pay rate. By unilaterally imposing
the change in insurance coverage in July and solic-
iting grievances directly in August, the Respondent
conveyed the message that it could ignore the
Union as the employees' representative whenever it
wished. By giving discriminatory warnings to two
employees who served in union leadership roles,
the Respondent reinforced its message of contempt
for the Union as employee representative.
The foregoing conduct, taken as a whole, does
not represent the behavior of an employer that ac-
cepts the employees' chosen representative as an
equal at the bargaining table and seeks through
good-faith negotiations to reach a collective-bar-
gaining agreement.
AMENDED REMEDY
The judge recommended that the Respondent be
ordered to recognize the Union on the commence-
ment of bargaining and for 12 months thereafter as
if the initial certification had not expired. Addition-
ally, the judge found that the Respondent's con-
duct was of such nature as to warrant issuance of a
broad order requiring the Respondent to cease and
desist from infringing in any other manner on the
rights guaranteed employees by Section 7 of the
Act.
The Respondent excepts to both of these recom-
mendations. It argues that, instead of the 12-month
extension of the certification year, the Board
should issue its standard Mar-Jac Poultry Co.13
remedy, extending the certification year only by
the amount of time remaining in the certification
year at the point the employer commenced its re-
fusal to bargain in good faith. It contends that a
broad order is not justified because it has no histo-
ry of violating the Act and its violations are not so
egregious and widespread as to demonstrate a gen-
eral disregard for employees' fundamental rights.
We find merit only in, the exception regarding the
broad order,14 and eve shall frame our Order ac-
cordingly.
We decline to limit the bargaining order as in
Mar-Jac because the Respondent's violations, be-
ginning in the middle of June, commenced early in
the collective-bargaining process and were, as
shown above, all calculated to subvert the Union's
role as a collective-bargaining representative. We
cannot find under these circumstances that the bar-
gaining process ever had a chance to get seriously
13 136 NLRB 785 (1962).
14 H,ckmott Foods, 242 NLRB 1357 (1979).
and fairly underway . Glomac Plastics v. NLRB, 592
F.2d 94, 100-101 (2d Cir . 1979), enfg. in pertinent
part 234 NLRB 1309 fn . 4 (1978). See also Colfor,
Inc., 282 NLRB 1173, 1174 ( 1987), enfd . 838 F.2d
164 (6th Cir . 1988) (decision on extension of certifi-
cation year is not a matter of "simple arithmetic
calculation"). Finally , we are amending the Order
to provide for the computation of interest under
the formula set out in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987).
ORDER
The National Labor Relations Board orders that
the Respondent, Thill, Inc., Menasha and Oshkosh,
Wisconsin, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating any employees
about their union support or union activities.
(b) Soliciting grievances from the employees.
(c) Interfering with the employees' rights and
misrepresenting that the Union had opposed the
revocation of the 15-percent pay cut.
(d) Issuing written or oral warnings to any em-
ployees or otherwise discriminating against them
because of their union activities.
(e) Failing to return the promised 15-percent cut
pay to its employees or otherwise discriminating
against them because they belonged to the Union.
(f) Failing or refusing to meet or bargain with
the Union as the exclusive bargaining representa-
tive of the employees in the following unit:
All full-time and regular part-time, production
and maintenance employees employed at the
Employer's Oshkosh, Wisconsin and Menasha,
Wisconsin facilities; excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
(g) Unilaterally changing insurance carriers and
insurance coverage or other working conditions
without prior notice to the Union and without af-
fording the Union the opportunity to bargain.
(h) Bypassing the Union as the elected represent-
ative of its employees and directly dealing with the
employees concerning their pay and working con-
ditions.
(i) Refusing to bargain in good faith.
(j) In any like or related manner interfering with,
restraining, or coercing employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Remove from its files any reference to the
unlawful written or oral warnings given to Beverly
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Solomon and Timothy Neubauer and notify those
employees in writing that it has done so and that it
will not use the warnings against them in any way.
(b) Reimburse with interest all employees for the
loss in pay that they suffered by the Respondent's
failure to revoke the 15-percent pay cut effective
July 1, 1981.
(c) Preserve and, on request, make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Recognize the Union on resumption of bar-
gaining in good faith and for 12 months thereafter
as if the initial certification year had not expired.
(e) On request meet with the Union and bargain
in good faith as the exclusive bargaining represent-
ative of the employees in the unit described above
concerning wages, hours, and other terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement.
(f) Post at its facilities in Menasha and Oshkosh,
Wisconsin, copies of the attached notice marked
"Appendix."15 Copies of the notice, on forms pro-
vided by the Regional Director for Region 30,
after being signed by the Respondent's authorized
representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60
consecutive days in conspicuous places including
all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material.
(g) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
MEMBER OvIATT, concurring in part and dissent-
ing in part.
I agree with the majority, except I would not
find that the Respondent engaged in bad-faith con-
duct at the bargaining table and I would not extend
the certification for 1 year as provided in the ma-
jority opinion.
I do not believe that my colleagues' conclusion
with respect to the bargaining properly evaluates
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 "
the role of both parties in the negotiating process.
The parties bargained for approximately 8 months
and held 26 bargaining sessions. The record is un-
clear as to the exchange of written proposals and
counterproposals, though there is some indication
that, at least initially, the parties presented written
proposals. It may be inferred from the record that
at each bargaining session the parties discussed var-
ious proposals and reached an agreement in princi-
ple on at least some of the proposals discussed that
day. In accordance with the Union's request, the
Respondent typed what it thought was the parties'
understanding concerning contract clauses arrived
at that day and presented the typewritten docu-
ment to the Union at the next bargaining session.
There were numerous instances when the Union
did not believe that the written proposal submitted
by the Respondent comported with the agreement
reached at the prior meeting. This necessitated fur-
ther discussion, which in turn delayed the negotia-
tions. Apparently this same type of procedure was
followed at the final meeting on December 15. The
Respondent submitted its final proposal, only again
to have the Union point out that there were errors,
whereupon the negotiations broke down.
There is no persuasive evidence that, to frustrate
or delay the negotiations, the Respondent engaged
in a deliberate scheme to omit provisions or to
present them inaccurately, or distorted or omitted
any provision where it was unambiguously clear
that the parties had agreed to a specific provision.
On the contrary, the record shows that the Re-
spondent was disposed to nailing down the parties'
oral understanding. Union Agent Lepianka testified
that when errors were pointed out the Respondent
agreed to the changes. Lepianka further testified
that the Union also made errors and omissions in
written proposals it submitted, and that Respond-
ent's representatives brought this to the Union's at-
tention.' There is also evidence that the Respondent
suggested that the Union should study the Re-
spondent's proposals, make any necessary changes
in the proposals, and return them so corrections
could be made' or discussed. Despite the evidence,
the majority concludes that' the Respondent's con-
duct constituted bad-faith bargaining.
With more than 50 years of experience behind us
in labor-management relations under the Act, con-
tract negotiation has become a more professional
science than it was at its inception. Negotiators
normally have experience in the manner in which
contracts are to be negotiated and have a knowl-
edge of the law and of their rights under the law.
Thus, when a negotiator for one side agrees to
omit from the negotiations certain procedures that
experience tells him may help to guard against mis-
THILL, INC. 675
understandings between the parties, that negotiator
can hardly complain when the omission later re-
sults in those very misunderstandings. In this case,
the Union agreed to allow the Respondent to write
up after each session -and to bring back to the
Union at a later session the agreed-on proposals.
With only 26 meetings held over an 8-month
period, one could reasonably expect that some slip-
page in recollection or understanding would have
occurred between meetings. This is evidenced here
by the testimony of Lepianka that a large number
of proposals were made orally across the table, and
that his notes made at bargaining sessions did not
reflect verbatim what was proposed or what was
agreed to. Yet the union negotiators apparently
were not sufficiently concerned about how the
agreed-on contract provisions were being drafted
and brought back to the table to suggest that the
Union, too, or the Union alone, should write its
version of the agreed-on items and present that
version at a later meeting. Had the Union been
concerned that the Company was using this tactic
to delay negotiations, it had ample opportunity to
control and correct the situation by submitting its
own written version of the agreed-on items as the
negotiations proceeded.
No doubt both sides could have negotiated
better. Keeping accurate records of what was
agreed to aid/or the parties' intent with respect to
the various proposals, including initialing contract
terms at the time of agreement on those terms,
might well have alleviated the problems here. But,
holding that the Respondent acted in bad faith
when it presented in writing its own understanding
of agreed-on terms from the previous session or
sessions does not fairly take .into account what was
at best an -imperfect bargaining process.
I would not find that the Respondent violated
Section 8(a)(5) in this respect. Consequently, I
would not extend the certification for a year as the
majority, does, because the alleged bad faith at the
bargaining table was the lynchpin for that remedy.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coercively interrogate any em-
ployees about their union support or union activi-
ties.
WE WILL NOT solicit grievances from the em-
ployees.
WE WILL NOT interfere with the employees'
rights and misrepresent that the Union had opposed
the return of the 15-percent pay cut.
WE WILL NOT issue written or oral warnings to
our employees or otherwise discriminate against
them because of their union activities.
WE WILL NOT fail to return the promised 15-per-
cent pay to our employees or otherwise discrimi-
nate against them because they belong to the
Union.
WE WILL NOT fail or refuse to meet or bargain
with the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America (UAW), as the exclusive bargaining repre-
sentative of our employees in the following unit:
All full-time and regular part-time production
and maintenance employees employed at the
Employer's Oshkosh, Wisconsin and Menasha,
Wisconsin facilities; excluding all office cleri-
cal employees, professional employees, guards
and supervisors as defined in the Act.
WE WILL NOT unilaterally change insurance car-
riers and insurance coverage or other working con-
ditions without prior notice to the above-named
Union and without affording the Union the oppor-
tunity to bargain.
WE WILL NOT bypass the Union as the elected
representative of our employees and directly deal
with the employees concerning their pay and
working conditions.
WE WILL NOT refuse to bargain in good faith.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL remove from our files any reference to
the written or oral warnings given to Beverly Sol-
omon and Timothy Neubauer and notify those em-
ployees in writing that we have done so and that
we will not use the warnings against them in any
way.
WE WILL recognize the Union on resumption of
bargaining in good faith and for 12 months thereaf-
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ter as if the initial certification year had not ex-
pired.
WE WILL reimburse all employees for the loss in
pay that they suffered by our failure to revoke the
15-percent pay cut effective July 1, 1981.
WE WILL bargain, on request, with the Union in
good faith as the exclusive bargaining representa-
tive of our employees in the unit described above
concerning wages, hours, and other terms and con-
ditions of employment and, if an understanding is
reached, embody the understanding in a signed
agreement.
THILL, INC.
Sharon Gallagher, Esq. and Dennis Selby, Esq., for the
General Counsel.
Dennis Weden, Esq. and Michael Wescott, Esq. (Ropella &
Van Horne), of Milwaukee, Wisconsin, for the Re-
spondent.
George Graf Esq., of Milwaukee, Wisconsin, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
KARL H. BUSCHMANN, Administrative Law Judge.
These cases were tried at Menasha and Oshkosh, Wis-
consin, on March 16-19, and April 12-15, 1982. The
charges were filed by International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America (UAW) on July 14 and October 8, 1981,
against Thill, Inc. The complaints issued on September
10 and November 30, 1981. They were ordered consoli-
dated on December 2, 1981. The consolidated complaint,
as amended, alleges that the Respondent violated Section
8(a)(1), (3), and (5) of the National Labor Relations Act
(the Act). Respondent filed timely answers in which it
admitted the jurisdictional allegations in the complaint,
and in which it denied the commission of any unfair
labor practices. The issues are whether Respondent un-
lawfully (1) engaged in acts of interrogation; (2) threat-
ened its employees, (3) refused to return a 15-percent
wage reduction to employees in a bargaining unit be-
cause of the advent of the Union; (4) issued written and
oral warnings to employees Timothy Neubauer and Bev-
erly Solomon; (5) unilaterally changed insurance carriers;
(6) bypassed the Union in dealing with the employees in
a variety of ways; and (7) engaged in bad-faith bargain-
mg or surface bargaining and, as a condition to consum-
mating any agreement, insisted that the Union agree to
certain provisions.
On the entire record' including my observation of the
demeanor of the witnesses, and after consideration of the
briefs filed by the General Counsel and the Respondent I
make the following findings of fact and conclusions of
law.
I The separate motions to correct transcript, filed by the General
Counsel and the Respondent, are hereby granted
FINDINGS OF FACT
The Respondent, Thill, Inc., is a Wisconsin corpora-
tion with plants located in Oshkosh and Menasha, Wis-
consin. It is engaged in the manufacture and nonretail
sale of fabricated metal parts. It is admittedly an employ-
er within the meaning of Section 2(2), (6), and (7) of the
Act. The Umon, International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of
America (UAW), is admittedly a labor organization
within the meaning of Section 2(5) of the Act. The
Union was selected as the bargaining representative for
the employees at Respondent's plant on March 4, 1981,
and certified on March 12, 1981, in a unit described as:
All full time and regular part-time production and
maintenance employees employed at the Employer's
Oshkosh, Wisconsin and Menasha, Wisconsin facili-
ties; excluding all office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act.
Background
In December 1980, Russell Thill, president of Thill,
Inc., announced to his employees that due to the eco-
nomic problems facing his Company it was necessary to
reduce the wages of all employees by 15 percent, effec-
tive January 1, 1981. During the same meeting Thill
stated that the 15 percent in pay would be restored by
July 1, lest the Company would no longer be in business.
As a result of Respondent's announcement, the employ-
ees turned to the Union. They approached Bernie Le-
pianka, the representative for the UAW. The Union con-
ducted an organizing campaign among the employees,
and on December 24, 1980, it petitioned for an election
in Case 30-RC-3902 on behalf of all regular full-time
and part-time production and maintenance employees in
the Oshkosh and Menasha plants. An election was sched-
uled for March 4, 1981. On March 12, 1981, the Union
was certified to represent the bargaining unit consisting
of all full-time and regular part-time production and
maintenance employees employed at the Employer's
Oshkosh, and Menasha, Wisconsin facilities; excluding all
office clerical employees, professional employees, guards
and supervisors and defined in the Act.
Bargaining for an initial contract commenced on April
13, 1981. Thereafter, 25 additional bargaining sessions
followed. The last session occurred on December 15,
1981. However, the parties failed to reach an agreement.
Representing the Company during the bargaining were
Dennis Weden, counsel for the Respondent, and Jack
Guhl, the Company's superintendent. The Umon was
represented by Bernie Lepianka, as well as employees
Keith Knepfel, Beverly Solomon, and Jim Martin.
Respondent's conduct prior to the negotiations and in
the negotiations is under scrutiny for numerous unfair
labor practices. For example, it issued disciplinary warn-
ings to employees Tim Neubauer and Beverly Solomon
both of whom were active on behalf of the Union. Re-
spondent also conducted interrogations of employees in
June 1981 and unilaterally changed insurance policies for
the bargaining employees in July 1981 without notifying
THILL, INC. 677
or bargaining with the Union. Effective July 1, Respond-
ent restored the 15-percent pay to the nonunion employ-
ees only. In September 1981 Respondent reportedly
made certain threats to an employee's father Thill fre-
quently met and dealt directly with the employees con-
cerning their working conditions. Under scrutiny is also
the Company's demeanor during an OSHA inspection of
the plant in November 1981. Finally, General Counsel
charges that the Company failed to bargain in good faith,
when, for example, it failed to authorize the representa-
tives with sufficient authority to reach an agreement; re-
fused to meet at reasonable times and for sufficient dura-
tion to reach an agreement; reneged on prior points of
agreement; and failed to give the Union certain and nec-
essary information. The alleged violations will be dis-
cussed in seriatim.
Alleged Violations
Interrogations
The complaint alleges that in June 1981, acting
through Supervisor Mark Maples, Respondent interro-
gated several employees. The record shows that Mark
Maples, a foreman at Respondent's Oshkosh plant, re-
turned from a meeting on June 24, 1981, approached
Timothy Neubauer, and asked him "how much the
Union is trying to get and how much money would be
sufficient for him to sign a contract? Whether he could
afford to go on strike." Neubauer testified he had given
general and noncommittal answers to these questions.
Maples also asked Charles Daker in June 1981, whether
he would go out on strike if there were one, and wheth-
er he could afford a strike considering that the 15-per-
cent pay cut was hurting them financially already.
Maples similarly asked Steven Albright whether he
would join a strike if there were one, to which Albright
replied that he would. Indeed, Maples' questioning of
these employees and others had become so obvious that
union steward, Keith Knepfel, requested fellow employ-
ee Neubauer to record typical questions which Maples
had put to the employees. The employees who were
questioned by Maples were then asked to sign the state-
ment. It was used by the Union during the negotiations
between Union Representative Lepianka and Thill at the
July 6 bargaining session, where Lepianka complained
that supervisors of Thill should not be going around in-
terrogating employees as to whether or not they would
go on a strike.
Supervisor Maples admitted talking to at least five of
the employees trying to find out if the people were-
what the people were after, why they wanted the Union.
Maples testified: "Well, basically what I did was I talked
to approximately five people when I was on second shift,
and I basically just asked people why they were dissatis-
fied with the Company, what-was wrong with it,
why-weren't they making enough money, did they
want more benefits." Maples who talked to the employ-
ees while they were at their work station, observed that
some employees were open and explained to him why
they were unhappy. Others did not respond to his ques-
tioning. When that happened, he just said, okay, and
walked away. Maples finally admitted that he talked to
more than five employees, and that he talked to them
along the same lines as he had talked to the five employ-
ees.
The law is clear, interrogation is unlawful when it is
coercive in the light of the surrounding circumstances,
considering the time, place, personnel involved, the in-
formation sought as well as the employer's obvious parti-
ality. Blue Flash Express, 109 NLRB 591 (1954). It is Re-
spondent's position that Respondent's conduct did not
violate the Act but that Maples' questioning of the em-
ployees amounted to no more than the normal supervisor
and employee conversation. Respondent argues that
Maples' conversation did not seek information to be used
against the employees, but that Maples, as direct foreman
of the employees, had daily conversations with them and
that such conversations and questions were informal and
general in nature. The General Counsel on the other
hand, submits that Maples' conduct amounted to unlaw-
ful interrogation, because it demonstrated an obvious
tendency to coerce. Since Respondent failed to give any
assurances that reprisals would not be taken, the ques-
tioning concerning the employees' intentions to strike or
not to strike was of particular severity, according to
General Counsel.
Considering all surrounding circumstances, the record
clearly supports the inference that Maples' interrogations,
had the tendency to coerce the employees. Several of
them gave a vague answer or none at all. Other employ-
ees kept a record of the questions and submitted the list
to the Union all of which showed that the employees felt
restrained. Furthermore, the interrogation was not
simply a pattern of idle conversation or light-hearted talk
away from the scene of employment in an informal set-
ting, rather it was conduct specifically intended to elicit
information designed to benefit the Employer in his cam-
paign against the Union. Accordingly, I find that Re-
spondent violated Section 8(a)(1) of the Act.
Discriminatory Warnings
Timothy Neubauer. The complaint alleges that Re-
spondent violated Section 8(a)(3) and (1) of the Act
when it issued a written warning to employee Timothy
Neubauer and threatened to discharge him. According to
the evidence, Neubauer needed the Company 's forklift to
move certain items sometime during the second shift on
June 19, 1981. Neubauer left his work station in search
for a forklift and noticed that fellow employee Steven
Sprout was using one. Neubauer asked him whether he
could use the machine. During this conversation, Neu-
bauer had momentarily placed his hand on the gas valve
of the forklift while its engine was running . When Neu-
bauer returned to his work station, Sprout drove off and
checked the valve to see whether it was still turned on.
This short episode had been observed by Acting Fore-
man Loyal Straveler while in his office located approxi-
mately 20 or 25 yards from the scene He promptly rep-
rimanded Neubauer, telling him never again to turn off
the gas valve on the lift truck. Neubauer emphatically
denied that he had turned off the gas valve. Sometime
during the evening, after Supervisor Straveler and Plant
Superintendent John Guhl had discussed the incident,
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Guhl prepared a written warning for Neubauer. He was
summoned to the office and again accused of turning off
the gas on the forklift. Even though Neubauer denied
that he had done so, Guhl handed him a written warn-
ing.
The testimony on this issue was somewhat inconsist-
ent. Straveler testified that he saw Neubauer turning off
the valve and Sprout later turning it back on. Sprout
generally corroborated Neubauer's testimony, but he did
not recall specifically whether or not Neubauer had
placed his hand on the valve. He testified as follows why
he checked the gas valve following his conversation with
Neubauer (Tr. 406):
I checked to see if it was on because sometimes
people when they are done, they shut it off and put
the park brake on and stuff like that. I was making
sure it was still on.
Sprout confirmed that the gas valve was still on and that
it had not been turned off by anyone.
Guhl handed Neubauer a written warning that evening
with the warning "Tim understands that a second offense
of this nature is cause for discharge," for the offense
"play tricks on other employees." Since Straveler had
been unsure whether Neubauer actually had turned off
the gas valve, Guhl told Neubauer that the warning was
officially for horseplay and that Neubauer would be dis-
charged for a second offense.
Respondent argues that Neubauer was properly disci-
plined not necessarily for the act of turning off the gas
valve but for "horseplay." Pointing to the possibility of a
serious accident in the event the propane gas valve is
shut off, Respondent further argues that Neubauer was
fully aware of the work rule prohibiting horseplay. It is
General Counsel's position that this warning to Neubauer
violated Section 8(a)(3) of the Act because the incident
was used as a pretext to reprimand a union steward. In
this regard the record shows that Neubauer was elected
union steward at Thill's Oshkosh plant in April 1981 and
served until August 1981 when he left the employ of the
Respondent. He was the only union official during the
second shift at that time. He was the most outspoken on
behalf of the employees during the meetings between the
employees and Thill's management. During his entire
tenure from September 1980 until August 1981 Neubauer
had never been reprimanded orally or in writing by the
Respondent.
A review of the relevant record evidence suggests that
Respondent's conduct during this episode was suspect.
First, it failed to collect the necessary data to make sure
that Neubauer had actually turned off the valve. For ex-
ample, Respondent could have questioned fellow em-
ployee Sprout. Secondly, if Neubauer had in fact not
turned off the gas valve on the forklift, the record is
devoid of any other evidence of "horseplay." Respond-
ent therefore, is incorrect in suggesting that the actual
turning off or on of the gas valve was inconsequential
since the warning was given for horseplay. Third, this
relatively trivial incident had a comparatively grave con-
sequence, i.e., discharge for an act of similar nature.
Fourth, no other employee has ever been warned for a
similar offense. On balance it is clear, therefore, that
Neubauer's union activity and not this incident was re-
sponsible for Respondent's action in this regard. Wright
Line, 251 NLRB 1083 (1980). I, therefore, find that Re-
spondent violated Section 8(a)(3) and (1) of the Act by
discriminatorily reprimanding Neubauer for his union ac-
tivity.
Beverly Solomon. On July 22, Beverly Solomon re-
ceived a warning from Supervisor Larry Clark because
she had used the Company's telephone. Although it was
a verbal warning, it was reduced to writing and made a
part of her employee record. The written memorandum
states "on two occasions Bev was using Company
phone-without authorization-for nonemergency calls."
Because Solomon had been a union activist, it is General
Counsel's position that this warning was discriminatory.
Respondent, however, argues that Solomon admitted the
use of the telephone, that she knew that the Company's
work rules prohibited its use, and that the verbal warn-
ing was totally justified.
Respondent's work rules (R. Exh. 2, p. 15) provide as
follows:
Personal telephone calls are to be confined to those
of necessity and emergency. Callbacks will be taken
on incoming calls and every effort will be made to
deliver the call back to you within 30 minutes. Pay
telephones have been installed for your use. In case
of an emergency call, you will be paged to an office
and immediately directed to a Company phone.
Solomon admitted that she had used the company tele-
phone during her 9 a.m. break on July 22 and that she
was unable to complete the call. At that time her fore-
man, Clark, observed her on the phone but took no
action against her. Superintendent Guhl, however, in-
formed Clark that he had observed Solomon using the
phone and inquired whether Clark had given her permis-
sion to use it. Clark denied that he had. Solomon again
used the telephone during her noon break. This time,
Vice President Keith Cramer had observed her. Cramer
informed Clark and inquired whether Clark had given
her permission to use it. Clark then approached Solomon
at her work station and told her that he had to give her
a verbal warning for using the telephone without permis-
sion. She replied that she was under the impression that
employees were permitted to use the telephone as long
as they were doing it on their own time. She accused the
Company of discriminating against her. On the following
day, Solomon approached Guhl in the plant and,told him
that she had received a verbal warning for using the
Company's telephone, and that she thought that the
action was unfair because she knew of several other em-
ployees who had used the telephone on the same day
and had not received any warnings whatsoever. Guhl
merely stated that the employee handbook prohibited the
use of the Company's telephone. Solomon replied that
she was aware of the rule but that they have always had
the right to use the phone on their own time. Fellow em-
ployee Sandy John corroborated Solomon's testimony as
follows (Tr. 293):
THILL, INC. 679
I was under the impression we could use the phone
on our breaks and any time without asking permis-
sion if we needed to make a phone call, but we had
to do it on our breaks. If we had an urgent phone
call or anything during working hours, we had to
ask permission, but breaktime was our time and
when we could use the phone.
The Company failed to produce any documents showing
that warnings had been issued to other employees for the
unauthorized telephone use. Indeed, Guhl and Clark ad-
mitted that they had never issued any warnings for such
an offense. It appears therefore that the Company did
not fully enforce the rule contained in its handbook but
had singled out employee Solomon.
As a 5-year veteran on the first shift at Respondent's
Menasha plant, Solomon had been a member of the
Union's bargaining committee since its inception. She
was also a witness during the Union's certification hear-
ing in Case 30-RC-3902 which ultimately lead to its cer-
tification on March 12, 1981. She assisted in the Union's
organizational campaign and was vocal on behalf of the
employees during the meetings between Thill and the
employees concerning the 15-percent pay reduction.
Considering Respondent's disparate treatment of Solo-
mon in issuing a verbal warning to her and because of
her prominent union role the inference is obvious. Wright
Line, 251 NLRB 1083 (1980). Respondent retaliated
against this employee in violation of Section 8(a)(3) and
(1) of the act.
The Threat of Loss of Jobs
As alleged in the complaint, General Counsel submits
that Ronald Karow threatened employees with the loss
of their jobs by January 1; 1982. Sandy John testified
that her father, Joseph Fuchs, told her of a conversation
which he had with Karow at a party. On that occasion,
Karow said that if the employees went out on a strike,
"there would be a whole new crew at, Thill Incorporat-
ed" by January 1. He also said, strike or no strike there
would be a whole new crew at Thill, Inc., by January
1982. It is clear however, that John's testimony was
based upon hearsay. Furthermore. Karow testified, albeit
unconvincingly, that he had no recollection of such a
conversation. Because of the insufficiency of the evi-
dence on this issue, I cannot find a violation of the Act.
Respondent's Unilateral Change in Insurance
Carriers
By memorandum, dated July 1, 1981, Thill informed
its employees that it had selected a new insurance carri-
er, inter alia, as follows (G.C. Exh. 4):
We are pleased to notify you that we have ob-
tained a quotation which will provide improved
benefits for only a slight increase in premium cost.
Our new health insurance carrier will be Aetna
Life and Casualty Company, and our group life and
weekly income insurance will be provided by Trav-
elers Insurance Company-I am sure both of these
names are familiar to you.
All claims initiated after July 1, 1981 will be
processed through the Aetna Company and the nec-
essary claim forms may be obtained through the
Personnel Office and/or Connie. Claims in process
prior to July 1, 1981 will continue to be processed
through Penn Mutual who will honor them.
The attached outline will describe improvements
that have been made in your health insurance bene-
fits effective July 1, 1981. The additional salary de-
duction cost for those of you insuring dependents
(family plan) will be $1.40/month.
All employees and dependents who are presently
enrolled in the insurance program will automatical-
ly be contacted to complete the enrollment card for
the new plan. Those employees who are not pres-
ently enrolled for the health insurance but desire to
become a member of the new plan may do so by
contacting the Personnel office.
We are pleased that through the diligent efforts
of our in house operation and the services of our in-
surance broker, we have been able to gain this new
insurance coverage that provides an increase in
your benefits while affording a minimal increase in
the cost.
The Union was not informed of the change until July
6, 1981, during one of the bargaining sessions. Weden
handed the notice to Lepianka with the comment, "we
are informing you that we have changed insurance carri-
ers effective July 1, 1981." Lepianka explained his reac-
tion to Weden's announcement as follows:
When the Company announced the change and had
given the union a copy'of this letter, I had stated to
the Company, one, that I believed that they have an
obligation to bargain with the union regarding the
change of insurance carriers either to the point of
agreement or to the point of impasse. And that the
Company had obviously contemplated the change
in carriers prior to July 1 and that the union was
available for such discussions.
To Lepianka's complaint that the Company had a duty
to bargain, Weden stated: "We are willing to talk about
it now." Lepianka said, "it doesn't make much sense to
talk about it after the fact."
Respondent argues that the change in insurance carri-
ers did not constitute final action on its part, since it had
a grace period of 30 days before the Penn Mutual Life
Insurance Company, its prior carrier, cancelled the
policy, so that bargaining was still possible at the time
the Union was informed. Moreover, according to Re-
spondent, the new policy was superior to the old policy
since monthly employee contributions increased by only
$1.40 a month, as compared to a planned increase of $14
on the old policy.
Technically, Respondent may be correct in stating that
there was still time to bargain over the issue; but the
Company announced the insurance changes both to the
employees, as well as to the Union as an accomplished
fact. This is evident by the tenor of the written an-
nouncement (G.C. Exh. 4) and the conversations be-
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tween Weden and Lepianka. The Union was informed on
July 6, that the change had already been made effective
July 1. Although Weden expressed his willingness "to
talk to [the Union] about it now," Lepianka replied that
it didn 't make any sense "to talk about it after the fact."
Respondent certainly did not make any effort to correct
the apparent false impression that the change was a final
decision . Had Respondent explained at that point that the
matter was a mere proposal , not yet finalized and still ne-
gotiable, it would have been in a better position to argue
that " [t]he Respondent presented this issue to the Union,
they refused to talk about it and did not bargain in good
faith." (P. Br. p. 17.) Castle-Pierce Printing Co., 251
NLRB 1293 ( 1980).
Moreover, it cannot be gainsaid that the change in car-
riers was a substantial change; for it changed the month-
ly contribution by each employee. Clearly, Respondent
effectively bypassed the Union and failed to bargain in
good faith in violation of Section 8(a)(5) and ( 1) of the
Act. Keystone Consolidated Industries v. NLRB, 606 F.2d
171 (7th Cir. 1979).
Trill's Meeting with Employees Concerning the 15-
Percent Pay Cut
In December 1980, Thill reduced the pay of its em-
ployees by 15 percent, because he claimed to have in-
curred financial difficulties . When he announced the 15-
percent pay cut to the employees at various meetings,
Thill also stated that he would return the 15 percent by
July 1 or the Company would no longer be in business.
Although Thill denied making that promise, the record
leaves no doubt that the employees clearly heard him
and that he made that statement unequivocally. (Tr. 18,
282, 261 , 332.) During the union campaign , Thill sudden-
ly changed his position . He told the employees that if the
Union won , the 15 percent would become a negotiable
item (Tr. 196). Indeed, on July 1, 1981, after the Union
was certified , Thill returned the 15 percent to all non-
union employees of the Company (Tr. 850). Thill contin-
ued to take the position during the negotiations that the
restoration of the pay was to be negotiated with the
Union . The Union 's position, however, has been consist-
ent, i.e, that the 15 percent should have been reinstated
immediately , and that it should not have been part of the
negotiations between management and the Union (Tr.
500).
During the middle of July 1981, Thill 's employees
drafted a short memorandum , addressed to Russell Thill,
requesting a meeting concerning the 15-percent wage re-
duction. The memorandum , signed by almost all of the
employees on the three shifts, states as follows (G.C.
Exh. 3):
We the undersigned want a meeting with you to
discuss our decrease . You promised our 15% back
the 1st. of July, or "Their would be no Thill, Inc.
_ You would close the doors." We are into the 2nd.
week of July, and still operating.
This is not a Union issue. This is a promise you
made before the Union was ever voted on. You
have always said, "You didn't need to put that
promise in writing, you 've made bigger deals by
your word." Russ, we know you are a man of your
word & you've told us you'd take care of us.
To remind you, you've also said you'd meet with
the people anytime. We have been a captive audi-
ence at your request, we expect the same courtesy.
Responding to these petitions , Thill held meetings on
August 3, 1981, with several small groups of employees.
Additional meetings were held on August 10 and 28.2 In
these meetings , according to the General Counsel, Re-
spondent has gone beyond a mere discussion of the 15-
percent pay reduction ; instead , Thill has used these meet-
ings to mischaracterize the Union 's conduct during the
bargaining negotiations and to blame the Union for Re-
spondent 's failure to restore the 15-percent reduction.
Respondent has done this , General Counsel argues, in an
effort to bypass its obligation to deal with the Union.
In this regard , the record contains the testimony of
employees who heard the speeches, the testimony of
Russell Thill who gave them , and voluminous written
notes3 taken by the Respondent . It is, initially , clear that
Thill did not only discuss the 15-percent pay reduction,
but fully elaborated in his speeches on other areas of
concern to the employees . For example , Thill discussed
the Company 's economic condition and also gave a
status report on the negotiations between the Union and
management (G.C. Exh. 64). Thill also agreed to answer
questions which the assembled employees raised. In this
context, Thill briefly discussed strikes, the economic out-
look for the Company, the status of the contract negotia-
tions, the need for temporary manpower , and general
wage increases . During these meetings , Thill repeatedly
represented to the employees that the 15-percent reduc-
tion was an economic issue to be negotiated with the
Union and that he would not restore the money unless
the matter was first negotiated with the Union . He also
encouraged the employees in small groups to talk about
their problems, including the Union and their working
conditions . He urged them to influence their union repre-
sentatives and to get them going when they were "drag-
ging their feet," or taking too much time up with griev-
ance procedures and checkoff, and to get them down to
the serious matters. One of the employees testified as fol-
lows about Thill's message to them (Tr. 289):
A. Well, Russ Thill started by saying he wanted
these small groups so we could talk about things in
a relaxed setting and we could talk about anything
on our mind, the Union, working conditions, any
problems we have with employees or jobs. And he
had stated that he wanted-that we should all talk
to our Union representatives and kind of get them
2 General Counsel 's motion to amend par 7 of the complaint request-
ing the Board's consideration of Respondent 's meetings held on June 11,
August 10 and 28 , 1981, is granted , since they were fully litigated during
the instant hearing
2 General Counsel had questioned the reliability of the written notes
taken by the Respondent Since the notes were admittedly edited by the
Respondent , they cannot be accorded the same weight as a witnesses'
recollection taken under oath and subjected to cross-examination Never-
theless these notes show the subject matter discussed , as well as the tenor
of the meetings
TILL, INC. 681
going on this, that they were dragging their feet,
taking too much much time up with grievance pro-
cedures and check-off and get down to the serious
matters, the money matters, insurance, and whatnot
and talk about the more important things, to get off
language items.
Thill clearly expressed his encouragement to the em-
ployees and invited them to freely talk to him or other
supervisory personnel when they had complaints about
working conditions or about their fellow employees (Tr.
292). He further stated that the Company would not be
able to survive a strike by the employees (Tr. 36).
On the basis of the foregoing, as well as additional
statements made by Thill in his speeches, as detailed in
General Counsel's brief, I find that the Respondent di-
rectly dealt with the employees concerning their pay and
other working conditions, in deviation of past practice,
and he bypassed the Union in dealing directly with the
employees, all in violation of Section 8(a)(5) and (1) of
the Act. Moreover, he solicited the employees' griev-
ances and in some instances misrepresented the Union's
conduct and its position on certain issues. This is evident
from an examination of the testimony of the witnesses
who heard these speeches and, in some instances, was
supported by Thill's summary of notes taken during
those speeches. He also threatened that the restoration of
the 15 percent became negotiable if the Union won. Such
conduct violates Section 8(a)(1) of the Act. Further,
since Respondent withheld the restoration of the 15 per-
cent to the employees when the employees chose the
Union, Respondent discriminated against them because
of their protected concerted activities. Respondent there-
by violated Section 8(a)(3) and (1) of the Act.
The Return of the 15 Percent
On October 21, 1981, Russell Thill made this brief an-
nouncement to his employees (G.C. Exh. 7):
This year all our employees took a 15% wage cut
which was necessary because of extremely adverse
business conditions for our Company.
We have been working with the Labor Board on
this issue to no avail. Last night we presented, with
no strings attached, the reinstatement of the 15% at
the bargaining table, with the understanding that
any retroactive or future adjustments would be sub-
ject to continuing bargaining negotiations.
We recognize the economic hardship that this has
caused all of our people, and it is my decision and
that of the Company, that the 15% is being reinstat-
ed with the check that you receive today.
At the same time, Respondent's foremen Mark Maples,
Larry Clark, and Neil LePoint approached several em-
ployees at their duty station and informed them that
during a negotiation session on the previous day, Octo-
ber 20, Russell Thill had offered to return the 15-percent
pay reduction to the employees, but that the Union had
refused the offer. In fact, however, the Union had not re-
fused the offer. The Union's position, credibly explained
by Lepianka in his testimony, was' that the 15 percent
was not a negotiable issue with the Union, and that it
should have been returned to the employees effective
July 1, 1981, as promised by the Respondent. Lepianka
testified as follows about the discussions during the nego-
tiating session on October 20 (Tr. 502):
Okay. When the bargaining session was coming to a
close, the Company stated that really there is no
more to talk about except one thing. We want to re-
instate the 15 percent effective tomorrow. Does the
union agree. The response of the union was that the
union's position is that the Company should rein-
state the 15 percent retroactive to July 1. 1 believe
that again Mr. Weden said we want to reinstate the
15 percent effective tomorrow. Does the union
agree. And I would have restated my position that
it be retroactive to July 1, 1981.
However, the Union's position had never been to
refuse the restoration of the 15 percent; indeed it had
only changed its position to the extent that it requested
retroactivity no longer to May but only to July 1 (Tr.
502). It is, of course, clear that Respondent knew the
Union's position, and it is obvious that the Union to
which the employees had originally turned for' help
when Respondent had effectuated the cut, on January 1,
1981, would not have taken such a position.
For the Respondent simply to represent to the employ-
ees that the Union had opposed the restoration of the 15
percent without the further explanation that it had also
insisted upon its retroactivity, was a clear mispresenta-
,tion designed to undercut the Union's bargaining posi-
tion. Respondent thereby interfered with the right of the
employees to be represented by the Union in violation of
Section 8(a)(1). Moreover, when on October 21, Thill
implemented the restoration of the pay retroactive to
October 11, 1981, he in effect ignored the Union's posi-
tion which had requested retroactivity to July 1, 1981.
Such unilateral dealing violates Section 8(a)(5) and (1) of
the Act.
OSHA Inspections
The Occupational Safety and Health Administration
conducted several inspections of Respondent's plant in
Oshkosh and Menasha. On November 5 and 9, two
OSHA inspectors, Gordon Kohn and Jim Taetsch, vis-
ited the Oshkosh plant to undertake an inspection of the
facility. According to the complaint, Respondent wrong-
fully denied the Union its right to be present during
these inspections.
Occupational Safety and Health Regulations and Pro-
cedures provide as follows with regard to the right of
accompaniment (sec. 1903.8):
(a) Compliance Safety and Health Officers shall
be in charge of inspections and questioning of per-
sons. A representative of the employer and a repre-
sentative authorized by his employees shall be given
an opportunity to accompany the Compliance
Safety and Health Officer during the physical in-
spection of any workplace for the purpose of aiding
such inspection. A Compliance Safety and Health
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Officer may permit additional representatives au-
thorized by employees to accompany him where he
'determines that such additional representatives will
further aid the inspection. A different employer and
employee representative may accompany the Com-
pliance Safety and Health Officer during each dif-
ferent phase of an inspection if this will not inter-
fere with the conduct of the inspection.
(b) Compliance Safety and Health Officers shall
have authority to resolve all disputes as to who is
the representative authorized by the employer and
employees for the purpose of this section. If there is
no authorized representative of employees, 'or if the
Compliance Safety and Health Officer is unable to
determine with reasonable certainty who is such
representative, he shall consult with a reasonable
number of employees concerning matters of safety
and health in the workplace.
The record shows that the inspectors met with the
Company's representatives Jack Guhl and Keith Cramer
and asked if the Company had a union. Guhl stated that
the UAW represented the employees. Guhl identified
employee Randy LeBelle as the employees' safety repre-
sentative. However, LeBelle had no connection with the
Union. He had been selected as the Company's safety
representative prior to the Union's election. The inspec-
tors asked LeBelle whether he wanted to accompany
them on the inspection tour. He declined. When asked
whether he knew of anyone else who would accompany
them, LeBelle replied "no."
The UAW's representative, Keith Knepfel, who
should have been identified by the Company as the ap-
propriate employee representative pursuant to OSHA's
regulations, was however, not officially notified by the
Company. He only casually met the inspectors on the
second day of the inspection when they came by his
work station. On that occasion, Knepfel requested to
meet with the inspectors to discuss certain safety aspects
of his machine. During these discussions, Guhl twice of-
fered Knepfel the opportunity to comment on his
status-presumably his position in the Union. Knepfel,
however, declined stating that he didn't see any benefit
"to help the Company out on this in any way" (Tr. 443).
Since Knepfel was not specifically requested by the
Company nor the OSHA representatives to accompany
them, and since LeBelle had refused to go along with the
inspection, it was conducted without the accompaniment
of any employee representative. The record is unclear
whether the Company had initially disclosed the identity
of Keith Knepfel as the Union's representative to the
OSHA inspectors. Lepianka's testimony (Tr. 824) indi-
cated that the OSHA people were not aware of it; yet
the OSHA report, prepared 1 day after the inspections,
plainly reveals Knepfel as the UAW's representative (R.
Exh. 306). Since Lepianka's testimony was based on
hearsay, I have resolved the dispute in favor of Respond-
ent's evidence and find that Knepfel was identified as the
Union's representative by the Company when the inspec-
tors visited Respondent's premises.
The evidence does not support General Counsel's alle-
gation that the Union was actually denied its right to be
represented during the OSHA inspections. To be sure,
Respondent failed to designate Knepfel as the only au-
thorized employee representative and, instead notified
LeBelle, but Respondent did not hide the Union's status
as the employees' bargaining representative. The evi-
dence suggests that the OSHA inspectors failed to re-
quest any representation from the Union. Had they done
so, it is doubtful that Respondent would have denied the
Union's representation, as evidenced by Respondent's
conduct toward Knepfel on the second day of the in-
spection. I cannot find that Respondent intentionally at-
tempted to hide Knepfel's status as the employees' repre-
sentative nor that it denied his participation in the in-
spection. Accordingly, I cannot conclude that the Re-
spondent violated Section 8(a)(5) and (1) of the Act in
this instance.
Alleged Bad-Faith Bargaining
The complaint lists numerous indicia to support the al-
legation that Respondent engaged in a course of overall
bad-faith bargaining to avoid reaching a bargaining
agreement with the Union._ The negotiation lasted from
April 13, 1981, the date of the first meeting to December
15, 1981, when the parties held their last meeting. A total
of 26 bargaining sessions were held. Respondent was rep-
resented by Dennis Weden, Esq., Respondent's attorney
in this case, and Jack Guhl, Respondent's superintendent.
Bernard Lepianka along with Keith Knepfel, Beverly
Solomon, and Jim Martin conducted the negotiations on
behalf of the Union. The record on this issue consists of
detailed testimony of the principal participants in the ne-
gotiations, notably Lepianka and Guhl. In addition to the
testimony, the evidence consists of minutes (R. Exhs. 85-
110) taken by several individuals specially employed by
the Respondent. Purporting to be verbatim transcripts
they are nevertheless edited versions.4 I have, therefore,
principally relied upon the sworn testimony of the wit-
nesses who were subjected to vigorous cross-examination
for the accuracy of the parties' conduct of the negotia-
tions.
Although both parties had professed to bargain in
good faith in an effort to reach a bargaining agreement,
the record shows that 26 bargaining sessions, led by two
experienced negotiators, Lepianka and Weden, which
stretched over a period of 8 months, failed to produce an
acceptable contract. General Counsel has put the blame
on the Respondent submitting that Thill merely went
through the motions and generally engaged in bad-faith
bargaining and finally manufactured an impasse as dem-
onstrated by the following conduct:
4 For example, Sharon Larson, who was specially hired by Respondent
to take notes, testified that she initially typed a rough draft from her
notes and then submitted the draft to Respondent who could have made
changes in the final version Another witness who recorded several nego-
tiations was Cindy LeBelle. She was employed as Respondent's sales co-
ordinator and prior to that worked as Russell Thill's secretary She testi-
fied that Jack Guhl reviewed her notes and on occasion suggested that
she make changes Other individuals who took the notes were Michael
Westcott, a law clerk employed by counsel for the Respondent who also
appeared at the hearing on behalf of the Respondent, and Majorie Kern-
gan, who did not testify
THILL, INC. 683
Lack of authority of Thill's bargaining team. When Le-
pianka presented Thill with an initial proposal on April
13, Lepianka explained that he had the authority to reach
a tentative agreement subject to the approval of the
Union's membership. Weden similarly assured the Union
that he had full authority to negotiate an agreement on
behalf of the Company. The evidence, however, shows
that Russell Thill retained ultimate control over the' ne-
gotiations and played an active role behind the scene,
deeply involving himself into individual proposals. For
example, Thill discussed specific proposals both before
and after the bargaining sessions. Indeed, Guhl testified
(Tr. 1253): "The Company bargaining team met with the
president of the Company [Thill] on occasion during this
period to try to find further movement in [the Compa-
ny's] package" and that on occasion it had to seek au-
thorization from Thill to make certain proposals. (Tr.
188, 1178.) In general, Thill had a certain preconceived
outline for such items as job classification, hours of
work, overtime, and union security, from which the bar-
gaining team could not deviate (Fr. 148-149, 154, 188,
1178). This obviously' restricted the Respondent's repre-
sentatives in their effort to compromise or participate in
a give-and-take environment. Respondent admitted that
"Russell Thill would not consent to anything but an
open shop because of deeply held personal feelings" and
that the Company had strongly held positions in the
areas of "check-off, seniority and job posting and manda-
tory overtime" (P. Br., 19-21). Company negotiators
found it difficult to change Thill's strongly held opinions
on such issues. Clearly, Thill's team did not have the full
authority to negotiate' a tentative proposal; moreover,
Thill's direct and detailed involvement with the various
proposals hindered the company negotiators in their ef-
forts to negotiate an acceptable agreement.
Timing of the negotiations. Lepianka credibly testified
that in spite of his pleas to meet more frequently or for
longer duration, he was met with resistance by Respond-
ent's team (Tr. 482-483).; For example, Weden generally
refused to meet for "longer than three or four hours per
night" (Tr. 1117); moreover, even though the Union was
prepared to meet on consecutive days or on weekends,
Respondent refused (Tr: 234, 1117, 1299).', Under the
guise that longer meetings would become unproductive,
that employees could not be excused from work, and
that the negotiating teams needed advance preparation,
Respondent imposed restrictive limitations upon the bar-
gaining process (Tr. 489, 1117). In an effort to show that
the meetings lasted much longer, Respondent submitted
into evidence its list showing the times' and duration of
the, negotiations sessions; (R. Exh. 111) and argues that
the meetings were lengthy, lasting an average of 4 hours.
Even accepting Respondent's evidence of the duration of
the meetings, it shows that on 4 days, the sessions lasted
from 6 to 7 hours, but the average time of the remaining
sessions was approximately 3.5 hours. This was not far
off the estimate made by Lepianka in his testimony (Ti.
362): "The best average that ][ could think to give was
that the meetings lasted approximately 3 hours. . . . I
think there were two sessions that were quite lengthy.
. . . They could have been about six hours." Moreover,
Respondent's own document confirms that there were no
weekend meetings or sessions on successive days.
The Company also dictated in those negotiations the
beginning time for the negotiations. Although the parties
had agreed at the May 11 session to schedule all future
meetings at 1 p.m., Respondent announced at the very
next meeting on May 26, that it needed "the people for
production" and that henceforth meetings had to be
scheduled after 4 p.m. (Tr. 500, R. Exh. 111).
Obviously, such intransigence not only lead to a re-
strictive and restraining' atmosphere in which to bargain,
but it also signaled to the parties the notion that Re-
spondent was in no hurry to conclude a bargaining con-
tract.
Failure to submit counterproposals. General Counsel
argues that Respondent hampered the bargaining process
by resubmitting prior proposals, rather than making new
proposals. In this connection, Lepiankas testified that Re-
spondent's negotiators resubmitted proposals' which had
already been considered before. General Counsel also
points to certain proposals which contained pages which
were dated in the lower right-hand corner showing that
those pages were culled from a previously submitted
proposal and reassembled with new cover pages.
My analysis of the record does not show that Re-
spondent resubmitted old proposals in order to stifle the
negotiations. Moreover, it is conceivable that the parties
had failed to reach an agreement on the previously sub-
mitted items and that the' same proposals were resubmit-
ted in an effort to resolve them at the next opportunity.
Omissions of and reneging on previously 'agreed-upon
items in its contract proposals. To the allegations that Thill
failed to incorporate into its proposals certain items to
which the parties had already agreed, Respondent argues
that either "simple typing errors" 'were responsible, or in
other instances, the Union was fully aware of the Com-
pany's intent and had unjustly accused Respondent nego-
tiators. In any case, the record reflects an unusually high
rate of errors, omissions, or additions to the proposals.
For example, on June 9, 1981, the parties had agreed that
an employee, would receive holiday pay if he worked at
least 6 hours the day before and the day after or had a
valid excuse from a doctor. Yet this agreement was not
inserted in the subsequent contract proposal. Respondent
admitted its intent "to honor doctor's excuses as excused
absences for the days before and after holidays" (Tr.
1230). But Thill plainly refused to reduce the agreement
to writing because "it might in effect encourage people
or promote absenteeism if, a person were able to easily
get a doctor's excuse." Instead, the Company insisted
that "the notes at the bargaining table" would be suffi-
cient as a source of reference.
At the meeting on September 2, 1981, the parties had
initially agreed on a recognition clause which included
temporary employees' who performed bargaining unit
work. The Company then changed its mind during the
same meeting and subsequently insisted on excluding
temporary employees from recognition.
The parties had agreed on August 27, to a provision
dealing with an employees' removal from the seniority
list in a layoff situation. Yet on at least six subsequent
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
meetings the Company failed to incorporate this item.
This alone resulted in repetitious discussions and several
retyped versions of the proposal.
Union Negotiator Lepianka summarized in his testimo-
ny some of the typical omissions and conflicts in individ-
ual proposals which the Company had submitted to the
Union during the bargaining session on October 9, 1981.
The Company's proposal, submitted on that day for in-
stance, specified 5 days (meaning calendar days) in the
grievance procedure; yet, there had already been a prior
agreement defining "days" as working days; moreover,
even though the parties had also agreed that the first
step of the grievance procedure would be considered
paid company time, Respondent's proposal omitted the
payment aspect. The Company's proposal further failed
to reflect that the parties had already agreed to a 5-day
time limit (as opposed to 3 days) within which a more
senior employee could "produce both the quality and
quantity of a normal operator" who is bumped. Also
omitted in the proposal was the parties' prior agreement
that overtime be optional rather than mandatory. Not
until the Company submitted its proposal on December
1, did it reflect the agreed-to language on voluntary
overtime. Another omission which annoyed the Union
was the provision for the duration of the agreement. Sig-
nificantly the Company had initially proposed a provi-
sion permitting termination of the contract after 60 days.
It then drafted a proposal for a 6-months duration of the
contract. The parties finally agreed to a 1-year provision.
Even then, Respondent omitted this agreement from its
resubmitted proposals.
Lepianka testified that omissions of similar nature were
of common occurrence with Thill. Even when the Union
had brought them to the attention of Thill's team, it
chose to ignore them or it failed to make the appropriate
corrections. He explained how Respondent's conduct af-
fected, the negotiations as follow (Tr. 585):
I think that starting somewhere in October be-
cause of the number of times we had reached agree-
ment on items and we would find that the Compa-
ny's proposal would not contain such an agreement,
I believe we had asked the Company that we would
like a proposal from them that would reflect every-
thing that was agreed to and their position exactly
as it would be presented to the membership because
of the number of problems we have had spending a
good 'portion of the bargaining session correct
something that we thought we agreed to the last
time. And periodically trying to review where we
are at.
Respondent was fully aware of the Union's frustrations
on this issue (Tr. 1251-1253). During the November 10
meeting, the Union, continuously frustrated by a lack of
progress, as well as Respondent's confusing and incom-
plete proposals, requested final and complete proposals
from the Company (Tr. 1252-1253). Thill thereupon pre-
sented a "complete" proposal on December 1 and a
"final" proposal on December 15, 1981. However, Thill's
purported "complete proposal" still did not contain all
the provisions previously agreed to. Indeed, at least six
items over which the parties had bargained in the course
of 26 sessions had been omitted from the Company's
final proposal; yet this was the package which the Union
was expected to present to the membership. Respondent
had to admit this dilemma at the hearing. To illustrate,
Respondent's negotiator Guhl admitted in his testimony
that Lepianka "[i]n his request on the 10th of November
session . . . asked for a proposal he could take back to
the membership and intended to present to the member-
ship of the Local" (Tr. 1254). Thill reluctantly admitted
that the proposal was incomplete and attempted to justi-
fy the omissions in the final proposal as follows (Tr.
956): "I'm saying the agreed to items were agreed to,
and the rest of the information that represented move-
ment was brought in the final package." The Union obvi-
ously dissatisfied with Respondent's cooperation, ex-
pressed its exasperation at the December 15 session and
requested further bargaining. Yet at this, the last bargain-
ing sessions between the parties, Respondent's position
was explained as follows (Tr. 540): "The Company's
answer was look, we gave you our final proposal. That
is where we are at. That is what you asked for and this
is what you got." In a final attempt to obtain a contract,
the Union asked for a recess in the same meeting, and
then called the Company back and told them that "[it]
understood at the last bargaining session that each side
was to go and really search for a new position to get an
agreement." It handed the Company the Union's propos-
al (Tr. 541). But the Company rejected it, stating "we
have given you our final proposal" which will be with-
drawn in 7 days (Tr. 541). Despite numerous subsequent
requests by the Union to bargain further, the Company
has refused, claiming that the "UAW and the Respond-
ent knew that an impasse had been reached," because a
"final offer does in fact mean impasse." (P. Br. p. 22).
The record clearly shows that Respondent's conduct
went beyond the commission of a few typographical
errors or accidental omissions. The Thill team frustrated
the bargaining process with empty promises, conscious
omissions, and distorted proposals.
The failure to furnish information. An additional
method of frustrating the negotiations and hampering the
Union's ability to bargain, according to the General
Counsel, was Respondent's, refusal to furnish vital infor-
mation. The Union had requested the Company to fur-
nish the reasons that employees Sprout and Wesenberg
had been disciplined. The Company responded by letter
of, October 14, 1981, as follows in the case of Stephen
Sprout: "Mr. Sprout was terminated because he made
numerous harassing telephone calls to Mr! Russell L.
Thill, owner of Thill, Inc. and his family., The calls re-
sulted in his conviction by the Circuit Court of Winneba-
go County." (G.C. Exh. 81.)
The Company explained Wesenberg's discipline by
letter of October 13, 1981: "Wesenberg was, an [sic] dis-
ciplinary suspension without pay September, 30th
through October 2nd, 1981, because of an' incident in-
volving insubordination on September 29, 1981." (G.C.
Exh. 80.)
The Union requested additional information. Respond-
ent complied and sent additional information by separate
THILL, INC
letters, dated October 27, 1981, relating to Wesenberg's
insubordination and Sprout's harassing telephone calls
(G.C. Exhs. 93(a), 94(a)).
Contrary to General Counsel' s arguments , I find the
information sufficiently detailed. It provided the Union
with the dates, the individuals involved, and a more de-
tailed explanation of the offenses. Any additional infor-
mation could have been gathered by the Union from an
inquiry of the two employees who were disciplined.
The complaint also alleges that the Company wrong-
fully withheld documentation showing the cost of admin-
istering a checkoff. The record is initially unclear as to
the when the Union made its first demand for this infor-
mation. Lepianka's testimony indicates that the Union
could not -have demanded the information in the -early
stage of the negotiations, since the Company's position
"through the majority of contract negotiations was that
they are not interested in it." (Tr. 486.) He testified fur-
ther that the Company subsequently changed its position
and indicated that it considered the proposed checkoff to
be a cost item . Assuming that the Union had made-a
demand for such information, Respondent in November
or December furnished the Union with an estimate for
the cost (G.C. Exh. 98) and thereafter, on January 6,
1982, with a more detailed breakdown (G.C. Exh. 107).
Even though Respondent failed to advise the Union
whether it or the Company were to assume this cost, it
cannot be gainsaid that Respondent had furnished the re-
quired information.
The complaint's allegation that the Respondent failed
to submit any, data concerning standard-setting proce-
dures is also not well taken. Lepianka testified that he
had requested that information during one of the, bar-
gaining sessions , probably on October 26. He subsequent-
ly made a written request for that information and 'testi-
fied as follows about the Company's response (Tr. 571):
A. The information that was requested of the com-
pany on the standards and how they established the
standards; the company had supplied me some in-
formation as to what the standards were in some of
the areas. But I don't believe that the company had
ever really supplied me with information how they
established that standard. I think that the company
basically said we don't have a very sophisticated
way of establishing our standards. I think that was
the answer. Verbal answer by the company to me
on that.
Although the Union may not have received what it
considered a satisfactory response, the record indicates
that some of the material was provided, but that the
Company had not developed any sophisticated plan
which they could have supplied to the Union (Tr. 1220).
On the basis of the foregoing, I cannot conclude that
Respondent frustrated the bargaining process by the fail-
ure to provide relevant information.
Respondent's demand to include certain provisions as
prior conditions to an agreement. The complaint finally al-
leges that Respondent, as a condition of consummating
any agreement, demanded the inclusion of three provi-
sions, one relating to union security, one dealing with the
685
posting of documents on the bulletin board, and a provi-
sion enabling any party to cancel the agreement on 60
days' written notice.
Thill submitted the proposal which contained the three
controversial provisions on October 9, 1981 (G.C. Exh.
78). Section 2, under the heading union security, states:
The Union further agrees not to intimidate or
coerce any employee of the Company into joining
the Union, nor to solicit members or to collect
union dues or engage in any other Union activity
on Company time, except as expressly permitted
under subsequent provisions of this agreement.
It is, of course, clear that a broad prohibition against
employees' solicitation "on company time" may apply to
nonworking time as well as to working time. The rule,
on its face, violates Section 8(a)(1) of the Act. Republic
Aviation Co. v. NLRB, 324 U.S. 793 (1945). General
Counsel is therefore correct in his argument that Re-
spondent insisted upon an illegal provision in the con-
tract proposal.
The additional, alleged unlawful clause in its October
9 proposal is one which deals with the bulletin boards
(G.C. Exh. 78):
The Union agrees to use the bulletin board only
for the posting of notices of social functions, meet-
ings, elections, and Union appointments, or any
other material authorized by the Company. Copies
of such notices shall first be submitted to manage-
ment for approval.
The General Counsel argues that such a provision is
not only overly broad but also illegal. It is well settled
that in the absence of any agreement, the Company has
no duty to provide bulletin boards for the use of the em-
ployees or the Union. Section 8(a)(1) of the Act would
prohibit an employer from interfering with the union ac-
tivities of its employees by, for example, screening or se-
lectively posting union material after the Company had
agreed to provide a bulletin board exclusively for the
union. Under the circumstances here, the record fails to
show unequivocally whether the Company's proposal
contemplated the maintenance of a union bulletin board
or whether the Company had merely expressed its agree-
ment to post ' certain union material on the Company's
bulletin board. In any case, the proposed provision, albeit
ambiguous, is not illegal on its face.
Finally, the, General Counsel points to the 60-day pro-
vision in the, proposal which would have permitted
either party to terminate the contract at the expiration of
60 days after written notice. If Respondent was willing
to risk calling a contract at an end in such a short time
period, after the parties had devoted their bargaining ef-
forts over a period of at least 6 months, it is apparent
that Respondent displayed a cavalier attitude about its
bargaining obligation when it offered such a provision.
Respondent's witness Guhl denied that his position on
October 9 had been to demand acceptance by the Union
of the three provisions as a condition to an agreement.
However, by, resubmitting the same provisions in its
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
"final" proposals on December 1 and 15, Thill clearly
continued to insist upon the Union's acceptance of them.
While Respondent may not have used these articles as a
condition precedent to any agreement with the Union, it
certainly did not facilitate the bargaining process when it
resubmitted the 60-day provision or the no-solicitation
requirement. To the contrary, it thereby exacerbated an
already stymied negotiating process.
Discussion of Thill's Bargaining Conduct
In addition to the specific misconduct already dis-
cussed and alleged in the complaint, General Counsel
points to Thill's refusal throughout the entire negotia-
tions to make any significant or meaningful concessions
as evidence of bad faith. Indeed, General Counsel has
shown that Thill was not only unyielding but advanced
less desirable working conditions in certain areas than ex-
isting practice. For example, Thill's proposals would
have extended the employees' workday by 15 minutes
while the Union ultimately bargained for the existing
working hours; similarly, overtime which had been vol-
untary would have become mandatory, and an existing
paid break would have become unpaid under Thill's vari-
ous proposals. Moreover, in lieu of any meaningful
union-security clause, Respondent bargained for a non-
discrimination provision and an unacceptable no-solicita-
tion rule. Claiming strong religious and ethnic beliefs,
Thill rejected the Union's initial counterproposal for a
union shop. The Union then moved to a modified union
shop and finally a maintenance-of-membership provision.
Respondent rejected out of hand all such proposals.
Thill's uncompromising attitude illustrated above,
went beyond any accepted form of hard- bargaining.
Consideration of the totality of negotiations shows con-
clusively that Respondent failed to bargain in good faith
and that it manufactured an impasse at the conclusion of
26 bargaining sessions, in which it thwarted the Union's
efforts to reach an agreement.
Thill proved to be adept in handling its business trans-
actions in a timely, resolute and accurate fashion. It
changed insurance carriers in a matter of days when it
deemed it advantageous to its economic position. Thill's
business letters did not contain any typographical errors
or omissions of sentences or paragraphs. By contrast, its
bargaining team "labored" over an 8-month period with-
out the end result of an agreement. So be sure, the Act
does not compel the parties to reach an agreement and
the duty to bargain in good faith does not require a com-
pany to make concessions on any specific issues or to
adopt any particular position, but "the employer is obli-
gated to make.some reasonable effort in some direction
to compose his differences with the Union." NLRB v.
Reed & Prince Mfg. Co., 205 F.2d 131 (1st Cir. 1953). In-
dicia of bad-faith bargaining are an employer's inflexible
position toward union security, dilatory tactics with an
apparent interest to reach an impasse, the unreasonable
scheduling of bargaining meetings, and the failure to des-
ignate an agent with sufficient authority.5 As already dis-
5 For citations, see Morris, The Developing Labor Law, pp 288-289
(1971)
cussed, Thill's negotiating team lacked full authority to
negotiate a contract and had to rely on periodic instruc-
tions from Russell Thill who exercised control behind
the scene. Thill clearly evidenced a totally inflexible po-
sition toward union security and other items. By refusing
to meet on weekends or on successive days, by insisting
that meetings would have to be scheduled at 4 p.m. and
not run for longer than 3 or 4 hours, Thill exhibited an
unreasonable attitude. Respondent also employed dilato-
ry tactics with an intent to reach an impasse by reneging
or omitting prior agreed-upon provisions. Significantly,
by refusing to meet after the December 15 negotiations,
Thill created an impasse. Justifying its refusal to meet on
the basis that the Union had asked for a final package on
that day, that it had received it, and that the negotiations
are necessarily at an end when a final offer is requested
and rejected, Thill claims that an impasse had been
reached. Yet the record shows and Respondent did not
deny, that Respondent's final package still omitted sever-
al items previously agreed to.
Having considered the totality of the negotiations as
well as the commission by Respondent of numerous
unfair labor practices during the crucial time of the bar-
gaining process, I have no difficulty in finding that Re-
spondent had violated its duty to bargain in good faith in
violation of Section 8(a)(5) and (1) of the Act.
CONCLUSIONS OF LAW
1. The Respondent, Thill, Inc., is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
2. International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW) is a labor organization within the meaning of
Section 2(5) of the Act.
3. The Union has represented the following employees
in a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-time production and
maintenance employees at the employer's Oshkosh,
Wisconsin and Menasha, Wisconsin facilities; ex-
cluding all office clerical employees, guards and su-
pervisors as defined in the Act.
4. By coercively interrogating its employees, Respond-
ent violated Section 8(a)(1) of the Act.
5. By soliciting the grievances of its employees, Re-
spondent violated Section 8(a)(1) of the Act.
6. By threatening to regard the revocation of the 15-
percent pay cut as a negotiable item in the event the
Union won, Respondent violated Section 8(a)(1) of the
Act.
7. By representing to the employees that the Union op-
posed the revocation of the pay cut without further dis-
closure that the Union had insisted upon its retroactivity,
Respondent interfered with the employees' rights in vio-
lation of Section 8(a)(1) of the Act.
8. By issuing a written warning to Timothy Neubauer
and a verbal warning to Beverly Solomon because they
engaged in union activities, Respondent violated Section
8(a)(3) and (1) of the Act.
THILL, INC. 687
9. By restoring the 15-percent pay to all nonunion em-
ployees on July 1, 1981, and by failing to restore the 15-
percent pay to its employees who belonged to the Union,
Thill discriminated against its employees because of the
Union, in violation of Section 8(a)(3) and (1) of the Act.
10. By changing insurance carriers and insurance cov-
erage without prior notice to the Union and without af-
fording the Union the opportunity to bargain, Respond-
ent violated Section 8(a)(5) and (1) of the Act.
11. By directly dealing with the employees concerning
their working conditions and by bypassing the Union as
the elected representative of its employees, Respondent
violated Section 8(a)(5) and (1) of the Act.
12. By revoking the 15-percent pay cut effective Octo-
ber 11 without bargaining with the Union about the issue
of retroactivity, Respondent violated Section 8(a)(5) and
(1) of the Act.
13. In view of Respondent's commission of unfair
labor practices, and by engaging in the following con-
duct, Respondent failed to bargain in good faith, avoided
reaching a contract, and created an impasse, in violation
of Section 8(a)(5) and (1) of the Act:
(a) Failed to invest its representatives with suffi-
cient authorityto reach an agreement.
(b) Restricted the times and duration of the bar-
gaining sessions.
(c) Reneged on and omitted previously agreed
upon items in its contract proposals.
(d) Demanded the inclusion of two proposals, an
unlawful solicitation provision and a 60 day cancel-
lation provision.
(e) Assumed an inflexible position towards a
union security clause.
(f) Refused to meet with the Union for further
bargaining.
14. All other alleged violations have not been substan-
tiated.
REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I find it necessary to order it
to cease and desist and to take certain affirmative action
designed to effectuate the policies of the Act.
The Respondent, having discriminatorily failed to
revoke the 15-percent pay cut to the union employees ef-
fective July 1, 1981, must make them whole for any loss
of earnings, plus interest. 6
Since Respondent unilaterally changed insurance carri-
ers, which resulted in increased insurance premiums, Re-
spondent should have to bargain over this issue if the
Union requests it. However, Respondent should not be
ordered to reimburse the increased premiums to the em-
ployees since the record indicates that the premiums
under the old policy would have increased.
Further, since Respondent failed to bargain in good
faith and manufactured an impasse, a bargaining order is
required. Thill should also be ordered to recognize the
Union upon the commencement of bargaining and for 12
months thereafter as if the initial certification had not ex-
pired.
Finally, as the Respondent has engaged in serious and
widespread misconduct as to demonstrate a general dis-
regard for the employees' fundamental rights, I find it
necessary to issue a broad order, requiring the Respond-
ent to cease and desist from infringing in any other
manner upon rights guaranteed employees by Section 7
of the Act. Hickmott Foods, 242 NLRB 135'7 (1979).
[Recommended Order omitted from publication.]
8 See Florida Steel Corp., 231 NLRB 651 (1977), Isis Plumbing Co, 138
NLRB 716 (1982)