Tomco Communications, Inc.

National Labor Relations Board - Board Decisions

Sep 25, 1975

220 N.L.R.B. 636 (N.L.R.B. 1975)

636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Tomco Communications , Inc. and United Electrical,
Radio and Machine Workers of America (UE) Lo-
cal 1412. Case 20-CA-8948
September 25, 1975
DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On December 31, 1974, Administrative Law Judge
Stanley Gilbert issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, the General Counsel
filed cross-exceptions to the Decision and a support-
ing brief, the Charging Party filed cross-exceptions to
the Decision and a supporting brief, and the Respon-
dent filed an answering brief to General Counsel's
and Charging Party's cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge but
only to the extent consistent herewith.
The General Counsel and the Charging Party con-
tend that the Respondent engaged in "surface bar-
gaining," in violation of Section 8(a)(5) of the Act. In
support of their contentions, the General Counsel
and the Charging Party primarily rely on the man-
agement-rights clause proposed and insisted on by
the Respondent. The General Counsel and the
Charging Party contend that this proposal, rigidly
adhered to throughout negotiations, would virtually
eliminate any possibility of the Union discharging its
representation obligations as the representative of
Respondent's employees.
It is well established that an employer's insistence
upon a management-rights clause does not, in and of
itself , constitute a violation of Section 8(a)(5) of the
Act.' However, the nature of an employer's proposals
on management-rights and other terms and condi-
tions of a collective-bargaining agreement are mate-
rial factors in assessing the employer's motivations in
the course of collective bargaining. Rigid adherence
to proposals which are predictably unacceptable to
the union may indicate a predetermination not to
reach agreement , or a desire to produce a stalemate,
1 N.L R.B. v. American National Insurance Co., 343 U S. 395 (1952).
in order to frustrate bargaining and undermine the
statutory representative.'
In its proposed management-rights clause, Re-
spondent demanded that the Union yield any and all
bargaining rights on such basic items as subcontract-
ing; the establishment, changing, combining, or eli-
mination of jobs; the setting of wage rates, individual
salaries, and the establishing or changing of an in-
centive or bonus form of compensation; and the re-
location or shutdown of operations or any part there-
of, as well as such matters as suspension, laying off,
recalling, retiring, demoting, disciplining, and trans-
ferring of the employees. An evaluation of all the
Respondent's proposals herein clearly shows that Re-
spondent was determined to force the Union and its
members to abandon their right to be consulted re-
garding practically any and all disputes that might
arise during the term of the contract relating to terms
and conditions of employment; i.e., to waive their
statutory rights to bargain collectively. Not only are
Respondent's proposals clearly designed to force the
Union into abandoning its statutory rights and du-
ties, but, at the same time, the totality of
Respondent's proposals, particularly in the benefit or
"economic" areas, indicates an intention on the part
of Respondent to penalize the employees for having
engaged in protected concerted activity'
Respondent's proposal as to vacations originally
detracted from the existing benefit by requiring an
employee to work an entire year prior to being eligi-
ble to receive a vacation. The existing condition was
that an employee earned ten-twelfths of a day vaca-
tion for every month worked. Upon objection by the
Union, Respondent made the concession of agreeing
to the preexisting manner of computation and ac-
crual 4
Another existing condition of employment was
that each employee earned 1 day's sick leave for each
month he worked. Under Respondent's proposal, the
employees would only be entitled to 6 days a year
rather than 12 days. Thus, for example, if an employ-
ee makes $5 an hour, the top rate for technicians, he
would suffer the immediate loss of a fringe benefit
that heretofore had an approximate value of $240.
Notwithstanding this proposed loss of an exisitng
fringe benefit, Respondent went even further by pro-
posing and insisting on another new condition which
provided that before an employee can draw sick pay
he must be absent from work on a working day for 1
2 Stuart Radiator Core Manufacturing Co, Inc, 173 NLRB 125 ( 1968),
Continental Insurance Co. v. N L R B, 495 F 2d 44 (C A 2, 1974).
3 Continental Insurance Co v N L R B, supra at fn. 2
This proposal is further complicated, however, by Respondent's propos-
al with regard to the existing 30-day probationary period . Respondent first
proposed that the probationary period be 150 days which it later reduced to
90 days with no right of vacation accrual unless the employee successfully
completed the probationary period.
220 NLRB No. 87
TOMCO COMMUNICATIONS, INC.
full day prior to being eligible to draw sick pay. Un-
der such a proposal, an employee would have to lose
at least 1 day's pay in order to draw any sick pay for
subsequent days out sick, and of course any sickness
or illness of only 1 day's duration would deny to the
employees any sick-pay benefit at all. Thus, medical
situations such as tooth extractions, diagnostic exam-
inations , the 24-hour virus, etc., under the
Respondent's new condition, would cause the em-
ployees to suffer from the loss of heretofore existing
benefits.
Other of Respondent's proposals clearly show that
this employer was engaging in a typical shell game,
giving with one hand and taking away with the other.
Thus, Respondent contends that it offered to in-
crease wages 10 cents an hour each year during the
term of a 3-year contract. However, an examination
of Respondent's wage proposal shows that all that
Respondent offered was an annual 10-cent-an-hour
increase in the upper limits of the rate range for each
classification, with the clearly spelled out caveat that
Respondent, and only Respondent, would determine
what hourly rate each employee would be paid with-
in his classification . Thus, there is no assurance that
any employee would even receive the 10-cent-an-
hour increase purportedly proposed for the second
and third years of the contract term.
Respondent's proposal on the discharge provided
that discharge and/or discipline shall be for just
cause . However, the management-rights clause pro-
vides that Respondent shall have the exclusive right
to discharge, suspend, or demote any employee, and,
under Respondent's proposed grievance clause, is-
sues arising out of the exercise of the rights reserved
to management under the management-rights clause
would not be subject to arbitration. Even
Respondent's attendance and punctuality bonus pro-
posal contains a "sleeper" provision. Under this pro-
posal, an employee who works every day in a 90-day
period would receive 10 hours of additional pay for
each such period to be added to his vacation pay.
The Respondent proposed that time in "paid sick
leave" would count as days worked. However, ex-
cused absences would not count as days worked.
Thus, a sick employee or one suffering from a tooth-
ache and excused to go to the dentist, would not, un-
der the 1-day waiting period in the sick-pay proposal,
be in "paid sick leave" status, thus causing the em-
ployee to lose any benefit from this proposal in any
90-day period in which he is sick or absent due to
illness or injury.
In this case , the record establishes that the Re-
spondent came to the bargaining table adamant in its
insistence that the Union (1) waive all rights to bar-
gain over issues not covered by the agreement, in-
cluding those not within the knowledge or contemp-
637
lation of either party; (2) waive all rights to partici-
pate in the determination of the hourly pay of each
employee and/or the right to grieve over any arbi-
trary action on the part of the Respondent with re-
gard to individual salaries; (3) waive all rights to be
consulted regarding practically all disputes that
might arise during the course of the contract term
including the right to grieve over arbitrary action of
the Employer in the fields of "suspending, schedul-
ing, assigning, discharging, laying off, recalling, pro-
moting, retiring, demoting and transferring of em-
ployees"; (4) waive all right to strike, protest, or
publicize in any way any arbitrary or unlawful acts
on the part of the Respondent, including those that
would not otherwise be subject to the arbitration
remedy; and (5) acquiesce in the loss to the employ-
ees of conditions of employment and fringe benefits
they had heretofore enjoyed.
It is a fundamental precept of labor relations law
that "the obligation to bargain collectively does not
compel either party to agree to a proposal or require
the making of a concession." However, as stated
above, the Board can and does consider the totality
of the employer's actions to assess its motivation in
determining whether it was really engaging in surface
bargaining with no genuine intention to reach agree-
ment. In appraising Respondent's actions, the words
of the United States Court of Appeals for the First
Circuit are appropriate:
It is difficult to believe that the Company with a
straight face and in good faith could have sup-
posed that this proposal had the slightest chance
of acceptance by a self-respecting union, or even
that it might advance the negotiations by afford-
ing a basis of discussion; rather, it looks more
like a stalling tactic by a party bent upon main-
taining the pretense of bargaining.5
In our opinion, Respondent's "last, best and final
offer" was nothing more than a demand on the part
of Respondent that the Union abdicate virtually ev-
ery right it would normally possess to represent effec-
tively the employees involved during the contract,
particularly when not only its representation rights
are decimated, but the overall improvement in the
employees' benefits are minimal if not nonexistent;6
nor can we accept the contention that Respondent,
whose negotiating agent is well schooled in the reali-
ties of collective bargaining, in good faith believed
that such a proposal would ever be accepted by the
5 N L R B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139
(C A 1, 1953 ), cert. denied 346 US 887
6 Compare the potential annual loss of $240 in sick-pay benefits alone
with the Respondent's wage proposal which, at its very best, would only
grant an annual increase of $208 , plus one additional paid holiday amount-
ing to $40
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union. In these circumstances, we find and conclude
that the Respondent has failed to engage in good-
faith bargaining as envisioned by the Act and that it
thereby violated Section 8 (a)(5) and (1) of the Act .7
We further find that the lockout of its employees
on January 29, 1974, was not a defensive or legiti-
mate bargaining-position lockout, but rather was de-
signed to discourage the employees' support of the
Union and to bring economic pressure to bear in
support of its unlawful bargaining position, and, by
locking out its employees in these circumstances, we
find that Respondent violated Section 8(a)(3) and (1)
of the Act.'
THE REMEDY
Having found that Respondent has violated the
Act, we shall order it to cease and desist from engag-
ing in the unfair labor practices found herein and
take certain affirmative action as provided in our Or-
der herein, designed to effectuate the policies of the
Act.
With respect to the overall bad faith exhibited by
Respondent during the course of negotiations, we
shall give a general bargaining order with the under-
standing that inasmuch as unit employees have been
deprived of the benefits of the certification year, said
year shall be deemed to begin on the date that Re-
spondent commences to bargain in good faith. With
respect to the locked-out employees, having found
that the Respondent violated Section 8(a)(3) of the
Act by locking out its employees in support of an
unlawful bargaining position, we shall order that the
Respondent offer said employees immediate and full
reinstatement to their former jobs or, if their jobs no
longer exist, to substantially equivalent positions,
without prejudice to their seniority or other rights
and privileges. Respondent will also be ordered to
reimburse them for any loss of pay they may have
suffered as a result of the discriminatory action
against them in the manner set forth in F. W. Wool-
worth Company, 90 NLRB 289, 291-293 (1950), to-
gether with 6-percent interest thereon in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716
(1963).
Upon the basis of the foregoing, and upon the en-
7 Continental Insurance Company, 204 NLRB 1013 (1973), enfd . 495 F.2d
44 (C.A. 2, 1974).
a Port Norris Express Company, 174 NLRB 684, 690 (1969). While we
agree with the Administrative Law Judge's conclusion that the alleged
"sick-out" was not a motivating factor in Respondent's locking out its em-
ployees , in the absence of any definitive evidence that employees absent on
sick leave during the month of January 1974 were not sick , we do not adopt
or pass on the Administrative Law Judge's conclusion that the employees
engaged in a partial "sick-out" in order to bring pressure on the Company
to agree to the Union's demand.
tire record in the case, we make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein
has been, engaged in commerce and in an operation
affecting commerce within the meaning of Section
2(2), (6), and (7) of the Act.
2. The Union is, and at all times material herein
has been, a labor organization within the meaning of
Section 2(5) of the Act, representing an appropriate
bargaining unit of employees of Respondent.
The appropriate unit is:
All production and maintenance employees em-
ployed by Respondent at its 2134 Old Middle-
field Way and 1078 B Wentworth, Mountain
View, California, facilities, excluding all office
clericals, guards and supervisors as defined in
the Act.
3. Since on or about November 9, 1973, and con-
tinuing thereafter to date, Respondent has, by its
overall course of conduct in the contract negotia-
tions, refused to bargain collectively in good faith
concerning wages , hours of employment, and other
terms and conditions of employment in violation of
Section 8(a)(5) and (1) of the Act.
4. By locking out its employees on January 29,
1974, in support of an unlawful bargaining position,
Respondent has violated Section 8(a)(3) and (1) of
the Act.
5. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
6. The second affirmative defense alleged by Re-
spondent is without merit.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
Tomco Communications, Inc., Mountain View, Cali-
fornia, its officers, agents , successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith
with United Electrical, Radio and Machine Workers
of America (UE) Local 1412 as the exclusive repre-
sentative of the employees in the unit described be-
low, concerning rates of pay, wages, hours of em-
ployment, and other conditions of employment:
All production and maintenance employees em-
ployed by Respondent at its 2134 Old Middle-
field Way and 1078 B Wentworth, Mountain
TOMCO COMMUNICATIONS, INC.
View, California, facilities, excluding all office
clericals, guards and supervisors as defined in
the Act.
(b) Discouraging membership in the above-named
Union by locking out its employees in support of an
unlawful bargaining position.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
protected under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the
Act:
(a) Upon request, bargain collectively in good
faith with the above-named Union as the exclusive
representative of all the employees in the unit de-
scribed above, concerning rates of pay, wages, hours
of employment, and other conditions of employment
and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Offer the employees who were locked out on
January 29, 1974, immediate and full reinstatement
to their former jobs, or, if their jobs no longer exist,
to substantially equivalent positions without preju-
dice to their seniority or other rights and privileges,
and make them whole for any loss of pay suffered by
them by reason of their discriminatory lockout in the
manner set forth in the section herein entitled "The
Remedy."
(c) Upon request, make available to the Board or
its agents, for examination and copying all payroll
and other records containing information concerning
its backpay obligation under this Order.
(d) Post at its places of business in Mountain
View, California, copies of the attached notice
marked "Appendix." 9 Copies of said notice, on
forms provided by the Regional Director for Region
20, after being duly signed by an authorized repre-
sentative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof and be main-
tained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notice
to employees are customarily posted. Reasonable
steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
9In the event that 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 National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
639
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found that we violated the National
Labor Relations Act and has ordered us to post this
notice and we intend to carry out the order of the
Board.
The Act gives all employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all these things.
WE WILL NOT do anything that interferes with
these rights. More specifically,
WE WILL NOT refuse to bargain collectively in
good faith with United Electrical, Radio and
Machine Workers of America (UE) Local 1412
as the exclusive representative of our employees
in the appropriate unit concerning rates of pay,
wages, hours of employment, and other condi-
tions of employment.
WE WILL NOT lock out employees for the pur-
pose of imposing an unlawful bargaining posi-
tion.
WE WILL, upon request, meet and bargain col-
lectively in good faith with a duly authorized
representative of the Union concerning rates of
pay, wages, hours of employment, and other
conditions of employment, and, if an under-
standing is reached, embody such understanding
in a signed agreement. The unit is:
All production and maintenance employees
employed by Respondent at its 2134 Old Mid-
dlefield Way and 1078 B Wentworth, Moun-
tain View, California, facilities, excluding all
office clericals, guards and supervisors as de-
fined in the Act.
WE WILL offer the employees who were locked
out on January 29, 1974, immediate and full re-
instatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other rights and privileges , and make them
whole for any loss of pay suffered by them by
reason of their discriminatory lockout.
TOMco COMMUNICATIONS, INC.
DECISION
STATEMENT OF THE CASE
STANLEY GILBERT, Administrative Law Judge : Based on a
charge filed on February 12, 1974, by United Electrical,
Radio and Machine Workers of America (UE) Local 1412,
hereinafter referred to as the Union , the complaint herein
was issued on August 13, 1974. The complaint alleges that
Tomco Communications , Inc., hereinafter referred to as
Respondent or Company , violated Section 8(a)(5), (3), and
(1) of the Act.' Respondent, by its answer, denies that it
engaged in conduct violative of the Act as alleged.2
Pursuant to notice , the hearing was held in San Francis-
co, California, on September 30 and October 1 and 2, 1974.
Appearances were entered on behalf of all the parties.
Briefs were received from the Respondent on November
26, 1974, from the General Counsel on November 29, 1974,
and from the Union on December 3, 1974?
Based upon the entire record 4 in this proceeding and my
observation of the witnesses as they testified , I make the
following:
FINDINGS OF FACT
1. BUSINESS OF RESPONDENT
Respondent is, and at all times material herein has been,
a California corporation engaged in the production of elec-
tronic components . During the year preceding the issuance
of the complaint , Respondent , in the course and conduct
of its business operations , purchased and received maten-
als and supplies valued in excess of $50,000 directly from
suppliers located outside the State of California , and sold
and shipped goods valued in excess of $50,000 directly to
purchasers located outside the State of California.
As is admitted by the Respondent, it is, and at all times
material herein has been , an employer engaged in com-
merce and in operations affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by the Respondent, the Union is, and at
all times material herein has been , a labor organization
within the meaning of Section 2(5) of the Act.
i The allegations of violations of Section 8(aXI) of the Act are derivative,
rather than independent allegations of unfair labor practices.
2 Respondent also alleges two affirmative defenses which are set forth
herein below.
7 After two extensions the time for filing briefs was set for November 29,
1974. (The Union's brief was sent from New York , by airmail and special
delivery on November 28, 1974 .) Nevertheless , it was considered
4 Errors in the transcript have been noted and corrected
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Information
The Respondent admits the following allegation with re-
spect to the bargaining unit involved herein:
At all times material herein all production and
maintenance employees employed by Respondent at
its 2134 Old Middlefield Way and 1078 B Wentworth,
Mountain View, California facilities, excluding all of-
fice clericals, guards and supervisors as defined in the
Act, have constituted a unit appropriate for the pur-
pose of collective bargaining within the meaning of
Section 9(b) of the Act.
It appears that during the time material herein there were
nine employees in the above-described bargaining unit.
The following facts are alleged in the complaint and ad-
mitted by Respondent.
(a) On October 25, 1973, a majority of the employees of
Respondent in the unit described above by secret-ballot
election conducted under the supervision of the Regional
Director for Region 20 of the Board, designated and select-
ed the Union as their exclusive representative for the pur-
poses of collective bargaining with Respondent.
(b) On November 2, 1973, the Acting Regional Director
for Region 20 of the Board certified the Union as the ex-
clusive representative for purposes of collective bargaining
of Respondent's employees in the unit described above.
(c) On or about November 9, 1973, December 5, 1973,
December 6, 1973, December 14, 1973, January 7, 1974,
January 8,5 and January 28, 1974, Respondent and the
Union met for the purpose of negotiating a collective-bar-
gaining agreement covering the employees in the unit de-
scribed above.
The record discloses that, at the aforesaid meetings to
negotiate a contract, the principal spokesman for the
Union was Paul Chown, an International representative of
United Electrical, Radio and Machine Workers of Ameri-
ca, and the principal spokesman for Respondent was
Charles H. Goldstein, a member of the law firm repre-
senting the Respondent in this proceeding.
B. The Issues
It is alleged in the complaint that Respondent violated
Section 8(a) (5) and (1) of the Act by the following:
1. By its overall course of conduct in the contract nego-
tiations which constituted a refusal to bargain in good
faith.
2. By refusing "to consider any proposal by the Union
providing for participation by union shop stewards in the
resolution of grievances and disputes respecting employ-
ees" in the bargaining unit described above.
3. By insisting "to impasse on its contract proposal for a
grievance procedure which provided no right for the Union
to be present at the initial presentation of employee griev-
ances and allowed only an `International representative' of
the Union to participate in subsequent steps of the griev-
ance procedure."
5 Although not alleged , it is found that there was a meeting on January 8.
1974
TOMCO COMMUNICATIONS, INC.
4. By insisting "to impasse on its contract proposal that
the Union or its members be prohibited from publicizing
that Respondent is unfair or that there is a dispute between
the Respondent" and the Union "or any other labor orga-
nization."
It is further alleged that Respondent violated Section
8(a)(3) and (1) of the Act on January 29, 1974, by locking
out the employees in the above-described bargaining unit
"in support of Respondent 's bargaining position and de-
mands as described above and/or because of said employ-
ees' activities on behalf of the Union."
As its first affirmative defense, the Respondent alleges
"that during the month of January 1974, pursuant to a
common plan , design and conspiracy, the Union and the
bargaining unit employees engaged in a deliberate slow-
down and sickout" which constituted concerted activities
not protected under the Act.
As a second affirmative defense, the Respondent alleges
that the complaint is "frivolous and totally lacking in mer-
it" and asked as a remedy therefor attorneys' fees and
costs.
C. Summary of the Negotiations
Chown, as above stated , was the principal spokesman
for the Union and was accompanied at the bargaining ses-
sions by a committee of employees consisting of Robert
Garcia and Rodney Williams . Goldstein, as above stated,
was the principal spokesman for Respondent and was ac-
companied by representatives of management , Thomas Ol-
son, president of Respondent , and Vincent Borelli, vice
president of Respondent.
The summary of negotiations is based , in the main, on
the credited portions of the testimony of Chown and Gold-
stein who were the principal witnesses for the respective
parties . At the first meeting on November 9, 1973, the
Union submitted a proposed contract. It appears that at
that meeting it was agreed that when the negotiators
reached an agreement as to a provision, both sides would
initial that provision which would signify a tentative agree-
ment thereto subject to the approval of the Union's mem-
bers and Respondent 's board of directors. It was further
agreed that the negotiators would not have a contract to
recommend either to the board of directors or the union
members until a complete document had been worked out.
At said November 9 meeting, the negotiators went
through each provision of the Union's proposed agree-
ment . Goldstein objected to the first paragraph of the
agreement on the ground that making the contract binding
upon its successors and assigns would make the Company
"less salable" and the Union's response was it wanted such
a provision in order to provide for continuity in case of a
change in ownership . As to purpose of the agreement set
forth in "Section 2," Goldstein stated that he was dissatis-
fied with the language and said that he would, at the next
meeting, bring in a rewritten version thereof . As to Article
I (Recognition) Goldstein stated that he thought it should
be more specific and that he would submit the language he
had in mind . As to Article II (Union Security) Goldstein
said he was not "in agreement in any way in having a
641
Union shop contract" to which the Union responded that
it strongly insisted on having a "union shop agreement."
With respect to Article III (Non-discrimination) there was
some discussion about the wording in Section 1 which ap-
peared to be merely a matter of disagreement in the matter
of semantics rather than in principle. With respect to Arti-
cle IV (Checkoff) Goldstein said that while he was not
agreeing to it, checkoff might be acceptable if there were a
clause indemnifying the Company for erroneous deduc-
tions, to which Chown replied that such a clause was a new
concept to him. With respect to Article VI (Hiring Proce-
dures) Goldstein indicated he did not see any need for the
provision and asked for further information about the
Union's job referral procedures at the next meeting. As to
Section 2 of the article, he stated that he doubted the ne-
cessity to have such a provision which required notice of
hiring be given to the chief steward, that since it was a
small company, employees would immediately know of
any new worker. The Union responded that it was neces-
sary for it to know the classification or rate of pay of a new
employee in enforcement of the contract.
Article VII (Reporting Pay), Article VIII (Call Back
Pay), and Article IX (Hours and Overtime) were discussed
briefly and were classified by Goldstein as economic is-
sues . He stated that they would have to be looked at as part
of the economic package of the agreement and they were
then passed over. With respect to Article X (Bulletin
Boards) Goldstein stated that the Company had no objec-
tion in principle to a bulletin board, but that he did not like
the language and would come back at the next meeting
with proposed language on the subject matter. With respect
to Article XI (Bereavement) and Article XII (Jury Duty)
Goldstein classified them as part of the "economic bag"
and indicated that the Company would have a response at
the next meeting. With respect to Article XIII (Paid Ab-
sence Allowance) Goldstein admitted that it was the cur-
rent policy of the Company for 12 days sick leave per year
but stated that there had been some abuse of it and that at
the next meeting would come in with a new proposal on
the subject. With respect to Article XIV (Plant Visitation
by U. E. Representatives) Goldstein stated that he thought
that it was "too free" but he might have a response at the
next meeting . With respect to Article XV (Safety and
Health) Goldstein stated that Section 3 thereof was the
present company policy and did not see any difficulty in
getting an agreement on that; but with respect to Sections
1 and 2, he stated that he thought there should be a simple
referral to the present laws of the land without further ex-
plication. Goldstein indicated that at the next meeting he
would bring in a proposed contract dealing with the mat-
ter. With respect to Article XVI (Leaves of Absence) Gold-
stein said he would have a proposal at the next meeting.
With respect to Article XVII (Paid Holidays) Goldstein's
reaction was that they currently have six paid holidays and
that this seems like an excessive demand but that the mat-
ter of the total number of holidays was also part of the
economic package. The next article is also numbered XVII
(Grievance Procedure). Goldstein's response was that he
thought it was much too broad, too general, too vague and
that he objected that it did not provide for a no-strike
clause which he thought should be in the contract. Gold-
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stein stated he would have a proposal on the grievance
procedure on the next meeting. With respect to Article
XVIII (Representation) Goldstein responded that it al-
lowed for "much too much freedom of movement" of
union stewards and other employee representatives of the
Union (for whose time the Company would be required to
pays e
There apparently was no Article XIX in the agreement.
With respect to Article XX (Vacations ) Goldstein's re-
sponse was that it was an economic matter that would have
to be studied and that he would come in with a proposal at
the next meeting . With respect to Article XXI (Wages)
Goldstein's response was that he thought the Union was
"shooting very high" and it appears that his response was
that he would have to study the article as part of the eco-
nomic package . With respect to Article XXII (Health and
Welfare) Goldstein responded that the Company had just
negotiated a new health and welfare plan and that he
thought there would be some difficulty involved in negoti-
ating another, and again , Goldstein said that the subject
matter was part of an economic package that would have
to be looked at in that light. With respect to Article XXIII
(Seniority) Goldstein responded that it was "much too
tight" and that "the Company had to have much clearer
freedom of action that is provided for." Goldstein stated he
would have a proposal on the seniority plan at the next
meeting . With respect to Article XXIV (Discharges) Gold-
stein stated that the Company was not totally opposed to
the concept of "just cause" but that he did not like the
language of the article and a discussion with respect to this
article was concluded with his statement that he would
come back with a proposal at the next meeting. With re-
spect to Article XXV (Continuation of Past Practices)
Goldstein took the position that he would not agree to the
clause because it was too vague and that the Union should
bring in a list of past practices and the Company would
consider whether to agree to incorporate them in the agree-
ment or not; he was adamant in opposing the blanket pro-
vision set forth in said article . It does not appear that the
Union ever submitted such a list.
There was then a discussion as to when a next meeting
should take place and Goldstein consulted a calendar and
said that he was not able to meet until on or about Novem-
ber 21 but that the date would be confirmed by consulta-
tion between Chown and Goldstein. Chown was subse-
quently advised by Goldstein that it was impossible to
meet before December 5 and 6, but that he could devote 2
full days on those dates to negotiations . It appears that
Goldstein promised that he would have the Company's
proposed agreement in the hands of the union representa-
tives prior to the meeting of December 5, but it was not
until the meeting of December 5 that the Respondent fur-
nished the union negotiators with its proposed agreement.
It appears that thereafter the negotiations were based on
the provisions in the Company's proposed agreement and
that there were no further references to the proposed agree-
t The grievance procedure and the representation clause provided for a
total of as many as six employees who could be involved (two stewards and
a four-man grievance committee ). It is noted that the entire unit consisted of
nine employees.
ment submitted by the Union on November 9. "Appendix
A" [omitted from publication] is the Company's proposed
agreement with the modifications thereof and indications
of those provisions which were agreed upon by the parties
as of the end of negotiations on January 8, 1974. An under-
standing of the following summary of negotiations at the
meetings subsequent to the first (on November 9) may,
perhaps, be enhanced by reference to said "Appendix A."
At the meeting on December 5, tentative agreement was
reached as to several of the provisions in Respondent's
proposed agreement, but the Union rejected the vast ma-
jority of the provisions contained thereon. With respect to
the no-strike clause contained in said proposed agreement
it appears that both Chown and Garcia rejected having a
no-strike clause in the contract. Chown argued that the
proposed arbitration as a terminal means of settling dis-
pute was a "sufficient remedy" and it appears that Garcia,
during the course of negotiations at the meeting on Janu-
ary 7, stated that the employees "are not going to give up
their right to strike." While there was some discussion ap-
parently about the additional language with respect to pro-
hibiting publicity about disputes, it does not appear that
this language was a material factor in the Union 's rejection
of the no-strike provision. The Union also rejected the
Company's proposed grievance procedure in that it did not
provide for the shop steward system and limited union in-
volvement in grievances to an International representative.
Apparently considerable discussion took place with re-
spect to the various provisions in the proposed agreement
since the meeting started at 10 a.m. and was not concluded
until 4:30 or 5 p.m., and the parties met again on Decem-
ber 6 for a morning session . It does not appear that any
further agreements were reached on that date.
The next meeting took place on December 14, 1973,
which began in the morning and lasted "a good part of the
day." At this meeting, the Union presented to the company
negotiators a revised proposal, "Appendix B" [omitted
from publication]. It contained four proposals with respect
to: I-Seniority; II-Grievance Procedure; III-Represen-
tation ; and IV-Management Rights . Although Chown
testified that Goldstein responded by rejecting the shop
steward system and insisting upon dealing only with an
International representative, Goldstein testified, and his
testimony is credited, that he offered to agree to the shop
steward system (set forth in "Appendix B") if the Union
would agree to the Company's provisions with respect to
management rights and its no-strike clause? It is noted that
the Union's grievance procedure provided for representa-
tion by a shop steward at the first step of the grievance,
i.e., the attempt to adjust the grievance with the employees'
foreman ; whereas, Article XX of the proposed agreement
submitted at the December 5 meeting provided, "a) The
employees concerned shall endeavor to adjust the matter
with their foreman ." The proposed agreement as of Janu-
ary 7, 1974, contains the same provision in Article XVIII,
Section 3(a).1 Apparently, Goldstein's offer to accept the
r There is nothing to support Chown's testimony on this point , whereas
Borelli's notes which were received into evidence support Goldstein 's testi-
mony.
s Apparently the words "or employer" were retained in the January 7
proposed contract inadvertently since the word "employer" was stricken
from the agreement submitted on December 5.
TOMCO COMMUNICATIONS, INC.
union steward system in exchange for the provisions con-
tained in the management rights and no-strike clauses was
rejected by the Union. There was some discussion on the
issue of the union shop and wages upon which there was
no agreement . The next meetings were held on January 7
and 8 , 1974, and arrangements were made for a state labor
conciliator to be in attendance . The Respondent presented
a new proposed agreement which is the agreement con-
tained in "Appendix A." As in the previous meetings, the
negotiators discussed the proposed agreement item by item
and the negotiations continued also on January 8 . Tenta-
tive agreement was indicated by the initials of the principal
negotiators and, as noted in "Appendix A," those agree-
ments which were arrived at are indicated in the left-hand
margin.
It does not appear that at the meetings on January 7 and
8 there was any further discussion of the Company's offer
to trade the shop steward system for the management
rights and no-strike clauses, nor does it appear that the
Company ever withdrew the offer prior to the impasse
which occurred as found herein below.
During the meeting on January 7 the Company pro-
posed a 10-cent-per-hour increase for all but two employ-
ees and the remaining to be reviewed later . The Union
rejected this proposal and the Company rejected the
Union's counterproposal . It is noted that at all the negotia-
tion sessions the Union indicated that it would accept
nothing short of a "union shop ." It is also noted that dur-
ing the period of the negotiations herein the Union had no
full-time business agents, that Chown handled all of the
Union's contract negotiations and that all of the union of-
ficers had full-time employment elsewhere . Goldstein, on
one hand, insisted he wanted an International representa-
tive involved in the grievance proceeding and not a local
representative and Chown responded that such a practice
was contrary to the Union 's policy . It is noted , however,
that the Union's original proposal (on November 9) pro-
vided that International representatives "be given free ac-
cess to the plant during working hours for the purpose of
administering this agreement , or for the purpose of con-
ducting union business ." It is further noted that when
Chown pointed out that his duties frequently took him
away from the area, Goldstein suggested that Garcia could
be appointed as his agent , but this was rejected by Chown.
The next and last meeting took place on January 28,
1974. Before setting forth what occurred on that occasion,
however, it appears appropriate to set forth matters which
occurred prior to said meeting on January 28.
According to the credited testimony of Morris Hudson,
who was an employee and a member of the bargaining unit
in December 1973 and January 1974, until he was locked
out on January 29, 1974, the employees discussed among
themselves the idea of lowering production in order to put
pressure on the Respondent . He further testified, however,
the he was not aware of any agreement that was reached to
implement the idea . Also, according to his testimony, one
of the ideas was that a slowdown could be accomplished by
employees not reporting to work. Chown testified that the
employees were upset by the delays in negotiations and
that at various times employees were urging strikes and
643
urging people to stay out sick, and that they did so in his
presence. It does not appear from his testimony that he
discouraged them from engaging in such tactics, and it is
found that by his silence he condoned their resorting to
putting pressure upon the Respondent by cutting down
production. Although there is insufficient evidence in the
record to permit the inference that they engaged in a slow-
down while at work, the evidence does support a finding
that the employees did engage in a partial "sickout." It is
noted that in November 1973, the total number of hours
that the employees in the bargaining unit were out sick was
16 and, in December 1973, 24 hours. However, in January
1974, eight of the nine employees in the bargaining unit
were out sick for varying numbers of hours and the total
number of hours of "sick time" for the members of the
bargaining unit was 137.5 hours. In contrast thereto, of the
seven employees who were not in the bargaining unit, only
two were out sick for a total of 24 hours during the month
of January 1974. In the circumstances it is concluded that
the employees did engage in a partial "sickout" in order to
bring pressure upon the Company to agree to the Union's
demands.
Also, during the month of January, the employees con-
tacted Olson and attempted to persuade him to change the
bargaining positions taken by Goldstein and it appears
that they did so at the suggestion of Chown. According to
credited testimony, Olson reported to Goldstein their at-
tempts to negotiate with him and complained to Goldstein
about an increase in the amount of sick leave. On January
15, 1974, Goldstein wrote a letter to Chown which, among
other things, complained about the above-mentioned ac-
tions of the employees.
The next and last meeting between the negotiators was
on January 28, 1974. At that meeting, according to
Chown's testimony, Goldstein referred to the sickout
which he (Chown) did not deny, since he was not in a
position to do so because he had no knowledge of the facts.
At said January 28 meeting, the state conciliator was also
present . During said meeting the Company modified its
wage proposal by agreeing to a 10-cent-per-hour increase
for all nine of the employees instead of for only seven, as
originally proposed. The Union rejected the proposal as
inadequate and the Company rejected a union counterpro-
posal. It appears that the meeting concluded when Gold-
stein notified the Union that its proposed agreement, as it
then stood, was its last, best, and final offer and stated that
the Union had until 5 p.m. on January 29, 1974, to accept
its proposal or the Company would take economic action.
No arrangements were made for a further meeting.
On January 29, Respondent gave a notice to its employ-
ees advising them of its demand that the Union accept the
Respondent's last, best, and final offer; that the Union has
not accepted it; that Respondent was taking "lawful eco-
nomic action" to reach a written agreement; and that, until
such time as the Union accepts said offer, Respondent was
locking out all bargaining unit employees. On February 1,
Chown sent a telegram to Respondent requesting that the
employees be allowed to return to work with the previous
wages and working conditions and that the negotiations
resume . Respondent replied the following day with a tele-
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gram that the employees could return to work only if the
Union agreed to Respondent's last, best, and final offer. A
week or 10 days after the lockout Chown called Goldstein
on the telephone and requested further bargaining. Gold-
stein stated that he was willing to meet, but that there had
been no change in the Respondent's position; and that, if
the Union was ready to accept the Respondent's offer, he
would be happy to have a meeting. Chown replied that the
Respondent would have to offer more money and union
security. Goldstein responded that, if the Union was not
going to change its position, it would be meaningless to
meet. Chown agreed, after some comment about the legali-
ty of a lockout and a suggestion by Chown that the Com-
pany might not have to take back some employees if an
agreement was reached . Goldstein rejected the suggestion
and the conversation ended. On June 24, 1974, Chown
wrote a letter to Respondent again requesting that employ-
ees be allowed to return to work and that negotiations re-
sume, but it appears that his request was not accepted since
there has been no meeting of the parties since January 28,
1974.
D. Concluding Findings
With respect to the allegation in the complaint that by its
"overall course of conduct" in the contract negotiations
Respondent refused to bargain in good faith, it is the con-
tention of the General Counsel and Charging Party that
the Respondent merely engaged in "surface bargaining."
On the other hand the Respondent contends that it bar-
gained in good faith, that "hard bargaining" is not a viola-
tion of the Act.
In essence the General Counsel's argument is the Re-
spondent made few concessions and insisted on many of its
own proposals. The Board stated in Kohler Co., 128 NLRB
1062, 1069 (1960):
While the record shows that the Respondent gave little
and held fast to many of its positions, the Act does not
compel any agreement whatsoever or that either party
agree to the other's proposals. It only requires the par-
ties to confer in good faith. N.L.R.B. v. Jones &
Laughlin Steel Corporation, 301 U.S. 1, 45; N.L.R.B. v.
American National Insurance Co., 343 U.S. 395.
In Artiste Permanent Wave Co., 172 NLRB 1922, 1939,
footnote 21 (1968), it is stated:
It is well settled that, under Section 8(d), 8(a)(5),
and 8(b)(3) of the amended Act, bargaining is a two-
way street, in which both parties have a clear obliga-
tion to bargain in good faith so that union conduct
which indicates a refusal to bargain in good faith may
remove the possibility of true negotiation and must be
considered in deciding whether the employer is acting
in good faith. Times Publishing Company, 72 NLRB
676, 682, 683; Phelps Dodge Copper Products Corpora-
tion, 101 NLRB 360, 368; N.L.R.B. v. Insurance Agents
International Union [Prudential Ins. Co.], 361 U.S. 477,
487, 488; Roadhome Construction Corp., 170 NLRB
668.
General Counsel argues that Respondent from the be-
ginning took positions on various issues which it could rea-
sonably predict would be rejected by the Union, frustrate
bargaining, and produce a stalemate. In support of this
argument, General Counsel referred to the Respondent's
proposal with respect to the grievance procedure "which
provided no right for the Union to be present at the initial
grievance and which allowed only an international repre-
sentative to participate in the subsequent steps? Based on
credited testimony, as found hereinabove, after the Union
presented its modified grievance procedure, as set forth in
"Appendix B," on December 14, 1973, the Respondent
agreed to accept the Union's proposal of a shop steward
system if it would in turn accept its proposed management
rights clause and its no-strike clause. This offer was reject-
ed by the Union. The General Counsel argues that the
Board management rights clause was predictably unac-
ceptable and that also predictably unacceptable was
Respondent's prohibition against publicizing labor dis-
putes by any means whatsoever which was part of
Respondent's proposed no-strike clause. In N.L.R.B. v.
American National Insurance Co., 343 U.S. 395, 409 (1952)
the Court stated:
Accordingly, we reject the Board's holding that bar-
gaining for the management functions clause pro-
posed by respondent was, per se, an unfair labor prac-
tice. Any fears the Board may entertain that use of
management functions clauses will lead to evasion of
an employer's duty to bargain collectively as to "rates
of pay, wages, hours and conditions of employment"
do not justify condemning all bargaining for manage-
ment functions clauses covering any "condition of em-
ployment" as per se violations of the Act. The duty to
bargain collectively is to be enforced by application of
the good faith bargaining standards of Section 8 (d) to
the facts of each case rather than by prohibiting all
employers in every industry from bargaining for man-
agement functions clauses altogether.
See all Texas Industries, Inc., 140 NLRB 527, 529 (1963).
The case cited by General Counsel, Stuart Radiator Core
Manufacturing Co., Inc., 173 NLRB 125 (1968), involved
factors not present in the proceeding and therefore is not
deemed to be applicable.
It is noted that the above-mentioned prohibition against
publicity was part of the no-strike clause . General Counsel
does not contend that it was inappropriate for the Respon-
dent to insist upon a no-strike clause, but merely confines
himself to the prohibition against publicity contained
therein. As stated hereinabove, the Union refused to accept
a prohibition against its right to strike and General Coun-
sel has failed to cite any cases which hold that the amplifi-
cation of the no-strike clause as proposed by Respondent
was unlawful. In view of the insistence of the Union on a
grievance and arbitration procedure, the request for a no-
strike clause is reasonable and Respondent by its amplifi-
cation of the no-strike clause apparently attempted to pro-
9 These two points are the subject matter of independent violations of
Section 8(a)(5) and (1) of the Act set forth in the complaint which allega-
tions are discussed herein below.
TOMCO COMMUNICATIONS, INC.
hibit conduct by the Union or its members which would be
disruptive of the Company's operations. In view of the
Union's insistence upon retaining the right to strike,1° the
amplified portion of the no-strike clause could not have
been a material factor in the minds of the union negotia-
tors.
As further evidence of Respondent's "surface bargain-
ing," General Counsel refers to the Respondent's proposal
of a zipper clause and clauses abolishing past practices. As
found hereinabove, when the Union proposed continuing
past practices, the Respondent stated that it would not
agree to such a broad provision, but that, if the Union
would bring in a list of past practices, it would consider
their inclusion in the agreement . It appears that the posi-
tion of the Respondent was that the Company's operations
had been very loosely handled and it would be difficult to
know what past practices the Union might rely on in the
future. Thus, it is deemed that Respondent quite reason-
ably proposed the abolishment of all past practices in order
to avoid ambiguities in the future and took the reasonable
position of being willing to consider any past practice the
Union specified. I have found no cases which hold that a
"zipper clause" is per se violative of the Act and its inclu-
sion in the Company's proposal appears to have been a
reasonable request in the circumstances of this case.
The Union further argues, in support of the contention
that the Respondent merely engaged in "surface bargain-
ing," that the Company made no wage proposal until the
meeting of December 7 (which was 10-cents-per-hour for
seven of the nine unit employees). It is noted that the nego-
tiations not only carried on during December 7, but con-
tinued on to December 8; that at the meeting on December
28 the Company offered to extend the 10-cent-per-hour
increase to the remaining two bargaining unit employees;
and that the Union made a counterproposal which was
rejected by the Company. Goldstein gave a reasonable ex-
planation for the basis of its wage proposal, that the
amount was consistent with the wages paid in the labor
market in the area. It does not appear appropriate to find
that the Respondent did not give the Union an ample op-
portunity to, bargain about the wage rate and that the
Respondent's insistence upon adhering to its proposal con-
stituted evidence of "surface bargaining."
It does not appear that the Respondent engaged in any
dilatory tactics and it is clear that Respondent discussed all
proposals on the bargaining table and fully explained its
positions. As a result of the negotiations, the parties were
able to agree on some items but remained far apart on
other matters . Absent a finding that the impasse was
caused by Respondent's failure to bargain in good faith, a
stalemate does not constitute evidence of "surface bargain-
ing," if it was caused by Respondent's "hard bargaining."
Atlantic Research Corporation Desomatic Products Division,
144 NLRB 285, 287, 295 (1963). While it is found, however,
that up to January 28, 1974, the Respondent did not en-
gage in "surface bargaining," 11 it is concluded that the
10 In N L.R.B. v. American National Insurance Co, 343 U.S. 395, 408
(1952), in In . 22, the Court affirmed the Board's ruling that an employer
may bargain in good faith for a no-strike clause
' Kohler Co., 128 NLRB 1062, 1069-70 (1960).
645
Respondent caused an impasse on January 28 by the
change in its bargaining position on that date.
It is found that at the meeting of January 28 the parties
reached an impasse after the Respondent stated that its
proposal, as amended, constituted its last, best, and final
offer, and it is found that this statement caused the im-
passe. It is further found that by this statement the Re-
spondent changed its bargaining position by insisting on its
grievance and arbitration clause as stated in its proposed
agreement, thereby withdrawing its proposal to agree to
the union shop steward system in exchange for its manage-
ment rights and no-strike clauses. That bargaining position
conditioned its execution of any contract with the Union
on the Union's acceptance of the Company's proposed
grievance and arbitration clause (which is discussed herein
below in considering the allegations of independent viola-
tions of Section 8(a) (5) and (1) of the Act).
It is alleged in the complaint that the Respondent violat-
ed Section 8(a)(5) and (1) by refusing to consider any pro-
posal by the Union for participation by union shop stew-
ards in the resolution of grievances and disputes. As found
hereinabove, the Respondent did consider said proposal
and offered to accept it as set forth in the Union's Decem-
ber 14 counterproposals (Appendix B) provided the Union
accept its proposed management rights and no-strike claus-
es. Therefore, it is found that the General Counsel has
failed to prove by a preponderance of the evidence the
aforesaid allegation in the complaint.
It is also alleged in the complaint that Respondent vio-
lated Section 8(a)(5) and (1) of the Act by insisting to im-
passe on a grievance procedure which provided no right for
the Union to be present at the initial presentation of em-
ployee grievances and allowed only an International repre-
sentative of the Union to participate in the subsequent
steps of the grievance. It is found that, by Respondent's
statement of its last, best, and final offer, the Respondent
was insisting to impasse upon such a grievance procedure.
In Bethlehem Steel Company, 89 NLRB 341, 347, the Board
held that Respondent violated Section 8(a)(5) and (1) of
the Act by insisting on the Union's acceptance of a clause
which did not provide for union representation at the first
step of the grievance procedure (the adjustment of a griev-
ance between the employee and his foreman) as a condi-
tion of executing any contract. Therefore, it is found that
Respondent violated Section 8(a)(5) and (1) of the Act by
insisting to the point of impasse on the Union accepting
the Company's proposal as it stood on January 28 which
contained a grievance procedure which failed to provide
for union representation at the first step of the grievance
and dictated who the representative of the Union should
be at subsequent steps of the grievance procedure. As for
Respondent's insistence upon an International representa-
tive at subsequent steps, it is well settled that an employer
cannot dictate to a Union who should or should not be the
Union's bargaining representative in negotiations between
them.
It is further alleged that Respondent violated Section
8(a)(3) and (1) of the Act by locking out its employees in
support of its bargaining position. In American Shipbuilding
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company v. N.L.R.B., 380 U.S. 300, 318 (1965) the Su-
preme Court stated:
Accordingly, we hold that an employer violates nei-
ther § 8(a)(1) nor § 8(a)(3) when after a bargaining
impasse has been reached, he temporarily shuts down
his plant and lays off his employees for the sole pur-
pose of bringing economic pressure to bear in support
of his legitimate bargaining position. [Emphasis sup-
plied.]
It is eminently clear from the record (of which Respondent
was aware) that the Union would not accept the grievance
and arbitration clause as set forth in the Company's final
proposal. Thus, it is found that Respondent's final propos-
al was calculated to evade bargaining and to avoid arriving
at a contract with the Union and that the lockout was not
imposed for the purpose of bringing economic pressure to
bear in support of a "legitimate bargaining position." Con-
sequently, it is concluded that Respondent violated Section
8 (a)(3) and (1) of the Act by locking out the employees in
the above-described bargaining unit. Bagel Bakers Council,
174 NLRB 622, 633 (1969). Port Norris Express Company,
174 NLRB 684, 690 (1969).
It is further alleged that Respondent violated Section
8(a)(5) and (1) of the Act by insisting to impasse on the
publicity prohibition in its proposed no-strike clause (as
stated hereinabove). No cases were cited which hold that
such a prohibition in a no-strike clause is violative of the
Act. It appears that Respondent was attempting to specify
types of conduct which usually accompany a strike or
which are utilized for the purpose of disrupting
Respondent's operations. In the circumstances it does not
appear that General Counsel has proved by preponderance
of the evidence the aforesaid allegation in the complaint.
As its first affirmative defense the Respondent alleges
that the bargaining unit employees engaged in a deliberate
slowdown and sickout which constituted concerted activi-
ties not protected under the Act. As found hereinabove,
there is no evidence of a slowdown while at work, but it has
also been found hereinabove that there was a partial sick-
out in that there was an abnormally large number of hours
of sick leave in January 1974 (137.5 hours). While the Re-
spondent did refer to the employees engaging in a sickout
in its letter to the Union on January 15 and again during
the meeting of January 28, it is my opinion that neither a
slowdown nor sickout was a motivating factor in locking
out the employees; 137.5 hours of sick leave during the
month constituted a minimal percentage of the total work
hours of the nine employees during the month, and there is
no showing of what effect, if any, the amount of sick leave
had upon the Respondent's production. In the circum-
stances it is inferred that a lockout was not imposed as a
defensive measure to a slowdown or sickout. Moreover, it
is noted that, in the notice to the employees of the lockout,
no mention was made of the employees engaging in a sick-
out or slowdown and when subsequently the Union made
the suggestion that the Respondent could refuse to rein-
state some employees (presumably objectionable because
of their engaging in a sickout), the Respondent rejected the
suggestion . Therefore, the Respondent's allegation of a
slowdown and sickout is without merit as a defense to the
finding that the Respondent violated Section 8(a)(3) and
(1) of the Act by locking out its employees on January 29,
1974. American International Aluminum Corp., 149 NLRB
1205, 1217 ( 1964). As to the Respondent 's second affirma-
tive defense that the complaint is frivolous and totally lack-
ing in merit , in view of the findings hereinabove , said de-
fense is without merit.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The unfair labor practices of the Respondent set forth in
section III, above, occurring in connection with its opera-
tions set forth in section 1, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes
burdening and obstructing commerce and the free flow
thereof.
V. THE REMEDY
It will be recommended that the Respondent be ordered
to cease and desist from engaging in the unfair labor prac-
tices found herein and take certain affirmative action, as
provided in the recommended Order below, designed to
effectuate the policies of the Act.
It having been found that Respondent has engaged in
unfair labor practices within the meaning of Section 8(a)(5)
and (1) of the Act by insisting as a condition of entering
into a bargaining contract that the Union accept a griev-
ance procedure which does not provide for union represen-
tation at the first step thereof and which dictates who shall
act as the Union's representative in the subsequent steps, it
will be recommended that Respondent be ordered to cease
and desist therefrom and, upon request, meet and bargain
with a duly authorized representative of the Union with
respect to the grievance procedure. It further having been
found that Respondent's insisting upon its aforesaid un-
lawful provisions for the grievance procedure to the point
of impasse and that its lockout of its employees on January
29, 1974, was predicated upon a bargaining position that
was not "legitimate" and thereby violated Section 8(a)(3)
and (1) of the Act, it will be recommended that the Re-
spondent be ordered to offer said employees immediate
and full reinstatement to their former jobs or, if their jobs
no longer exist, to substantially equivalent positions with-
out prejudice to their seniority or other rights and privi-
leges. It will be further recommended that Respondent be
ordered to reimburse them for any loss of pay they may
have suffered as a result of its discriminatory action against
them in the manner set forth in F. W. Woolworth Company,
90 NLRB 289, 291-293 (1950), together with 6-percent in-
terest thereon in accordance with Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
Upon the basis of the foregoing findings of fact, and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, engaged in commerce and in an operation affecting
TOMCO COMMUNICATIONS, INC.
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. The Union is, and at all times material herein has
been , a labor organization within the meaning of Section
2(5) of the Act representing an appropriate bargaining unit
of employees of Respondent.
3. Respondent violated Section 8(a)(5) and ( 1) of the
Act on January 28, 1974, by insisting to the point of im-
passe on the Union accepting as a condition of entering
into a bargaining contract with the Union that it accept a
grievance procedure which fails to provide for union repre-
sentation at the first step and which dictates whom the
union representative shall be at the subsequent steps.
4. On January 29, 1974, Respondent violated Section
8(a)(3) and (1) of the Act by locking out its employees in
support of an unlawful bargaining position.
647
5. The General Counsel has failed to prove by a prepon-
derance of the evidence that prior to January 28, 1974,
Respondent engaged in unlawful "surface bargaining."
6. General Counsel has failed to prove by a preponder-
ance of the evidence that Respondent violated Section
8(a)(5) and (1) of the Act by refusing to consider any pro-
posal by the Union providing for participation by union
shop stewards in the resolution of grievances.
7. The first affirmative defense alleged by the Respon-
dent is found without merit as a defense to the allegation
that it violated Section 8(a) (3) and (1) of the Act by lock-
ing out its employees on January 29, 1974.
8. The second affirmative defense alleged by Respon-
dent is without merit.
[Recommended Order omitted from publication.]