United Brother of Carpenter & Joiners, Local 1780,

National Labor Relations Board - Board Decisions

Aug 17, 1979

244 N.L.R.B. 277 (N.L.R.B. 1979)

UNI FED BROTHD. OF CARPENTERS & JOINERS I. LOCAI. 1780
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 1780 and Of-
fice and Professional Employees Union, Local No.
445, AFL-CIO. Case 31-CA-7253
August 17. 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENI.LO()
AND TRUCESDAI.E
On January 19, 1979, Administrative Law Judge
Bernard J. Seff issued the attached Decision in this
proceeding. Thereafter, the General Counsel and Re-
spondent filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of' the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board had 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. only to
the extent consistent herewith.
The General Counsel contends, in substance, that
the United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 1780 (herein
referred to as Respondent), commencing on or about
June 20, 1977, violated Section 8(a)(5) of the Act by:
(1) engaging in collective bargaining with the Union
with no intention of reaching an agreement; (2) by
offering collective-bargaining counterproposals which
included terms of employment significantly less than
those existing prior to the negotiations: and (3) reneg-
ing and/or changing its position on contract terms to
which it had agreed previously. The General Counsel
further contends that Respondent's violations of Sec-
tion 8(a)(5) and () of the Act were the cause of the
strike which occurred herein, thereby rendering it an
unfair labor practice strike. The General Counsel ad-
ditionally contends that by failing to immediately re-
instate three unfair labor practice strikers upon their
unconditional offer to return, Respondent violated
Section 8(a)(3) and (I) of the Act. Finally, the Gen-
eral Counsel contends that Respondent indepen-
dently violated Section 8(a)(1) of the Act in several
respects.
The Administrative Law Judge concluded that, al-
though there was evidence tending to show that Re-
spondent failed to bargain in good faith, Respondent
did not violate Section 8(a)(5) and (1) of the Act since
it did, in fact, execute an agreement with the Union.
Accordingly, he dismissed that allegation of the com-
plaint. In view of his dismissal of the alleged violation
of Section 8(a)(5). he concluded that the strike that
occurred herein was an economic, rather than an un-
fair labor practice. strike. The Administrative Law
Judge found, however, that by denying reinstatement
to three of the strikers, without sufficient economic
justification. Respondent "discharged" the three em-
ployees in violation of Section 8(a)(3) and (I) of the
Act. He further found that Respondent violated Sec-
tion 8(a)(1) of the Act b threatening to terminate
employees on several occasions ift' they exercised their
right to strike.
For the reasons expressed below. we find merit to
the General Counsel's exceptions to the Administra-
tive Law Judge's Decision. AccordinglN, we find. con-
trary to the Administrative Law Judge, that Respon-
dent failed to bargain in good faith. at Ieast until Jul5
14. 1977. and, therefore. violated Section 8(a)(5) and
(I) of the Act. We further find that the strike that
occurred herein was precipitated, at least in part, by
Respondent's unfair labor practices and was, there-
tfore, an unfair labor practice strike. Since Respon-
dent failed to reinstate three unfair labor practice
strikers upon their uncondititional offer to return to
work, we find that it discriminatorily denied them re-
instatement in violation of Section 8(a)(3) and (1 of
the Act. Finally, while we agree with the Administra-
tive Law Judge's finding that Respondent has vio-
lated Section 8(a)( 1 ) of the Act as set forth above, we
find additional violations of Section 8(a)( I ) as fully
set forth herein.
On or about JanuarN 18, 1977. a majority of Re-
spondent's clerical employees' designated the Union
as their collective-bargaining representative. There-
after, on January 21, 1977,2 the Union wrote a letter
to Respondent requesting recognition. On February
8, Respondent replied by letter and extended recogni-
tion to the Union as the exclusive bargaining repre-
sentative of its clerical employees. This letter also in-
dicated that negotiations would commence at a
mutually convenient time.
As found by the Administrative Law Judge. state-
ments were made to the clericals in the early part of
1977 about the possibility of their success in contract
negotiations. In January. Harry Kaiser, the Financial
secretary of Respondent and a member of its execu-
tive board, told employee Judy Treichel that the at-
mosphere and conditions which the employees en-
joyed would not be the same with a union agreement.
In March, Michael Otero, an assistant business agent,
indicated to Treichel that Charles Connely. Respon-
dent's business agent, would handle the negotiations
I The four emploees involved In this proe.eding aire Jud T richel. June
Driscoll. Karen McEIrath. and Bernardine Montosa.
: All dates are in 1977, unless otherwise indicated
244 NLRB No. 26
277
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
and that the employees "were getting in over their
heads," since Respondent was experienced in these
matters. In addition, he indicated that the Union was
"not going to come away with anything," that "nego-
tiations were going to be rough," and that the em-
ployees "were going to learn the hard way."
At the first negotiating session on April 26, Re-
spondent was represented by Connely, while present
for the Union were officers Patricia Watson and Ha-
zel Galwaich and three of the four employees in-
volved. At this session the Union presented its first
written proposal which included, inter alia, a starting
rate of $6.75 per hour for new clericals, 15 days a year
in sick leave, double time for all overtime, a continu-
ation of Respondent's policy of making all contribu-
tions into the pension and health and welfare fund,
and an effective date for the agreement of January 21,
1977.3 After a brief discussion regarding the proposal,
Connely indicated he would present a counterpro-
posal at the next meeting.4
On May 17, Connely submitted Respondent's
counterproposal, which included the following terms:
(I) a starting wage rate of $5.15 per hour, which in-
creased in steps to $7.35 per hour after I year; (2) 15
days of sick leave per year: (3) all increases in pension
and health and welfare contributions to be paid by
the employees; (4) employees with I to 5 years' ser-
vice would receive 5 vacation days per year, with an
additional 5 days at the end of the next two 5-year
intervals. Among the matters tentatively agreed to by
Prior to the commencement of negotiations the clerical employees en-
joyed the following terms and conditions of employment:
(I) A wage rate of S$7.10 after I year of service (2) wage increases in equal
percentage to that of Respondent's members in their master agreement: (3)
all health and welfare and pension contributions were paid by the Respon-
dent; (4) 12 sick days per year; (5) 2 weeks' vacation after I years; and (6)
double time for all overtime work.
The Administrative Law Judge noted Connely's testimony that he stated
at the beginning of each bargaining session that any tentative agreement was
subject to approval by, and ratification of, Respondent's membership. He
also noted that the clerical employees testified that Connely was "evasive
about exactly what authority the Executive Board had given him." He fur-
ther noted, however, that employee Judy Treichel admitted that Connely
made references during the early meetings that "the Executive Board would
buy this or the Executive Board won't buy this." In addition, employee June
Driscoll corroborated these statements, although she did not attend negotia-
tions until the second meeting. While the Administrative Law Judge found
that there is a "difference of opinion" as to whether or not Connely ex-
plained during the early sessions that any tentative agreement would have to
be approved by the executive board, he nevertheless failed to resolve this
"difference of opinion."
We are of the view that the record supports a finding that Local 445 was
aware of the limitations on Connely's authority by the second bargaining
session. In the regard, we rely on the testimony of Treichel and Driscoll, who
were credited by the Administrative Law Judge in several instances. We also
rely on the testimony of Treichel that it was the "understanding" of the
employees, based on their knowledge of Respondent's operations, that any
agreement had to be approved by the executive board and Respondent's
membership. Finally, we note that, in view of the extensive involvement of
the executive board in the later stages of negotiations, it seems improbable
that Connely did not indicate, in some manner, that he did not have com-
plete authority to bind Respondent.
the parties at that meeting were an effective contract
date of January 21, 1977, double time for all over-
time, and the payment of at least 4 hours of overtime
for all work outside and normal work schedule (re-
porting pay). The meeting ended, however, with the
parties far apart on the definition of temporary and
part-time employees and whether part-time employ-
ees should receive proportionate benefits. A third
meeting was scheduled for May 24.
At the May 24 meeting, Bruce Groulx. an Interna-
tional representative for the Union, made his first ap-
pearance as a negotiator. The session began with an-
other discussion of the problem of defining part-time
and temporary employees. The parties also attempted
unsuccessfully to reach agreement on the wage scale.
Agreement was reached, however, with respect to a
number of articles in the proposal.
The record reveals that on May 31, Connely at-
tended a meeting of Respondent's executive board.
At this meeting, he presented the various proposals
and counterproposals that had been discussed and
made recommendations to the executive board as to
their acceptability. Pursuant to a request by Connely,
the executive board formulated a set of instructions as
to what proposals he should present at the next bar-
gaining session. After the meeting, Connely prepared
a written proposal reflecting those instructions.
At the fourth bargaining session held on June 20,
Groulx, Watson, and all four clericals were present
for the Union, while Connely again represented Re-
spondent. At this session, Connely presented the pro-
posal that he had prepared pursuant to the instruc-
tions of the executive board. As found by the
Administrative Law Judge, this proposal contained
offers which were less than Respondent's original of-
fer in some respects, and in certain instances, less
than the employees existing benefits. Specifically, Re-
spondent: (I) proposed beginning wage rates that
were substantially less than previously offered; (2) re-
duced the minimum overtime (reporting pay) hours
from 4 to 2: (3) reduced vacation time to 5 days for
the first year and 10 days thereafter; (4) eliminated
language with respect to paid leaves of absence and
funeral leave; (5) reduced paid sick days from 12 to
10; and (6) demanded that increases in health and
welfare and pension contributions be borne by the
employees.
When Groulx questioned Connely as to the reasons
for each of the above-noted changes in position, Con-
nely responded only by saying "That's what the Ex-
ecutive Board wanted." Groulx reacted heatedly to
Respondent's proposals and indicated that he had no
choice but to file unfair labor practice charges and to
seek strike sanction from the clericals. Connely re-
sponded by saying "go ahead and do what you have
278
tINIlED BROTHD. OF CARPENTERS & JOINERS. L.OCAL 1781)
to do" and indicated that this was Respondent's final
offer and that the Union could "take it or leave it."
Thereafter, although discussed only in passing b
the Admininstrative Law Judge, the record clearly re-
veals that on June 22. the four clerical employees.
along with two officers of the Union, met to discuss
the results of the June 20 negotiating session. Treichel
testified, without contradiction, that during this dis-
cussion the employees expressed the view that Re-
spondent was "playing a game with them" and that
they "were being taught a lesson, so to speak, for
having unionized." Following the discussion. a strike
vote was taken, which resulted in a unanimous deci-
sion to strike. The employees further decided that the
strike should commence on July I, since that would
be a very difficult time for Respondent to cope with a
strike. The employees noted that several of Respon-
dent's contracts with employers in the construction
industry would expire on that date, and that Respon-
dent would be in the midst of an audit. On June 28 or
29, the employees had another meeting, at which time
they again unanimously voted to strike.5 On July I
the strike commenced. Respondent hired three re-
placements to work in the clerical office after the
commencement of the strike.
As set forth by the Administrative Law Judge, dur-
ing late June, Respondent's agents6 made several co-
ercive statements to employees regarding the negotia-
tions.7 In this respect, Otero told employee
Bernardine Montoya that Local 445 should have ac-
The employees prepared picket signs at the meeting. one of which stated.
"On strike against Carpenters' Local 1780 for bargaining in bad faith
OPEIU Local 445."
6 In its answer to the complaint. Respondent admitted that Kaiser and
Connely are its agents and further admitted that they are supervisors within
the meaning of Sec. 2(11) of the Act. Respondent contends, however, that
the conduct of Otero. Ballard, and Laub cannot be attributed to it. In this
regard, we not that Otero and Ballard were members of Respondent's execu-
tive board, while Laub acted solely as an assistant business agent. We regu-
larly consider such individuals to be agents of a Union. See. e.g, Peninsula
Shipbuilders Association (Newport News Shipbuilding and Drydock Co). 239
NLRB 831 (1978). Moreover, we find that under the circumstances. the
employees involved in this proceeding would reasonably believe that the
statements of the above individuals reflected the position of Respondent. Cf.
American Lumber Sales. Inc., 229 NLRB 414. 420 (1977). Accordingly. we
find no merit to Respondent's contention.
7 Respondent has excepted to the credibility findings made by the Admin-
istrative Law Judge with respect to the conduct referred to above.
The record reveals that the testimony of Respondent's witnesses conflicted
with that of the General Counsel's witnesses regarding these statements.
While the Administrative Law Judge did not make explicit credibility find-
ings with respect to the conflicting testimony. it is clear from his Decision
that he implicitly resolved the conflict in favor of the General Counsel's
witnesses. In doing st. he based his credibility findings primarily on demea-
nor. See Electri-Fle.rx Company. 228 NLRB 847 11977). enfd. in relevant part
570 F.2d 1327 (7th Cir. 1978).
It is the Board's established policy not to overrule an administrative law
judge's resolutions with respect to credibility unless the clear preponderance
of all the relevant evidence convinces us that the resolutions are incorrect
Standard Dry Wall Products Inc., 91 NLRB 544 1950). enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no basis for
reversing his findings.
cepted Respondent's June 20th proposal "because the
proposals will only get worse ... if you think this one
was bad you should see the rest." According to the
testimony of Montoya and Treichel, on three occa-
sions Kaiser stated that the employees would always
have better conditions without a contract. In addi-
tion, they recalled Otero stating that McElrath was
one of the main reasons why there was difficulty in
reaching agreement, and that after she was "let go.
things might take a turn." In the presence of Otero.
Laub told Montoya that the employees should receive
all funds due them before a strike because "if they did
go out on strike they would not be coming back."
Shortly after the strike began, Connely visited
McElrath at her home and made several references to
the strike. He began by telling her that he did not
want to see her lose her job. Connely then asked her
to cross the picket line and to solicit the other em-
ployees to do likewise. He warned that "if the em-
ployees did not cross the picket line, they would be
walking out forever . . . that he would teach them a
lesson ... and that they would not get their jobs back
in any way, shape or tform." Finally, although not
discussed by the Administrative Law Judge. the rec-
ord discloses that Bobby Ballard, a member of the
Union's executive committee, took photographs of
McElrath and Driscoll while they were on the picket
line and indicated that these photographs ould act
as evidence to fire them.
Subsequent to the commencement of the strike, ne-
gotiations continued. Pursuant to the suggestion of
Michael Chadbourn, president of the Central Labor
Council in Las Vegas, the parties contacted Roger
Laird, a mediator for the State of Nevada, who
agreed to assist the parties during their negotiations.
The next bargaining session took place on July 5.
Laird was present at this meeting, as he was at all the
remaining ones. Watson. Groulx, and the four em-
ployees were present for the Union, while Connely
and a majority of the executive board were present
for Respondent. At this meeting. Respondent's June
20 proposal served as the basis for discussion, al-
though for the first time Respondent proposed a
broad management's rights clause. Although some
concessions were made on both sides regarding minor
matters, the economic issues and the issue of the man-
agement's rights clause remained unresolved.
At the next session on July 7, Respondent pro-
posed, for the first time, a reduction in the rate of
overtime pay from double time to time and one-half
and a wage scale that provided different wage rates
for employees who were working on July 1. the date
of the strike, and those that were hired afterwards.
I We note that the testimony of Driscoll and Treichel confirms this state-
ment.
279
I)E(tlSIONS OF NA IIONAI L.ABOR RELATIONS BOARD
Againll in view of the new reduced proposals. little
progress was made. The July 14 meeting, however,
resulted in some major concessions by the Union and
set the stage for the climactic session of July 20.
As set forth by the Administrative Law Judge.
Groalx testified that the Union was present at the
July 20 meeting "to capitulate . . . we had been
beaten . . the object of the session was to cut a deal
.. and get the women back to work." In this regard,
the Administrative Law Judge noted that a compar-
ision of the proposals of June 20 and July 7 with the
tentative agreement reached on July 20 demonstrated
the "meagerness of the Respondent's concessions."
Thus, in return for a wage increase of 30 cents per
hour for clericals with at least I-year service9 and pro
rata benefits for part-time employees. Local 445
agreed to terms and conditions of employment less
advantageous than those existing before the com-
mencement of negotiations. In particular, the agree-
ment reached on July 20 provided for a decrease in
paid sick leave, as well as decreases in reporting and
overtime pay. Also, all increases in contributions to
the fringe benefit trust funds were to be borne by the
employees. Pursuant to a discussion among them-
selves. the clericals agreed that they could return to
work on the following Monday, July 25. When Con-
nely was asked if this arrangement was acceptable, he
replied, "That's fine, I don't see any problem, I'll
have to check with Harry [Kaiser] and see what the
situation is." At the close of the meeting, Driscoll told
Connely. "See you Monday" to which he replied,
"See you then." On July 22, however. Connely, sent a
telegram to Treichel, Driscoll, and McElrath which
stated as follows:
In order to avoid any misunderstanding re-
garding agreement with Office employees. Local
1780 is not prepared to terminate replacements
for Elva June Driscoll, Judy Treichel, and Karen
McElrath.
At present time there are no positions avail-
able. The three employees will be placed on a
preferential hiring list, and will be offered em-
ployment when a position is available.' 0
The terms of the agreement reached on July 20
were implemented after it was ratified by Respon-
dent's membership on August 18. The contract was
finally executed on January 18, 1978.
On the basis of the foregoing facts, the Administra-
tive Law Judge found that the threats made by Con-
nely, Otero, and Laub to the effect that employees
who went on strike would be terminated violated Sec-
9 The agreement did provide for a wage reopener after I ear.
l0 The record reveals that Bernardine Montoya was recalled to her ormer
job as a dispatcher and began working on July 25.
tion 8(a)( I) of the Act. As set forth above, although
the Administrative Law Judge referred to numerous
other coercive statements made by Respondent's
agents, he did not specifically find them to be viola-
tive of Section 8(a)( I ) of the Act.
Accordingly, we find that Respondent violated Sec-
tion 8(a)(1) of the Act by: telling employees that they
would not receive any benefits from negotiations;
threatening that bargaining proposals would get
worse as negotiations progressed; stating that em-
ployees would always have better terms and condi-
tions of employment without a contract; indicating
that one particular employee was the reason negotia-
tions were not succeeding; inducing employees to
cross their own picket line; and photographing em-
ployees while they were picketing."
As noted above, the Administrative Law Judge
concluded that Respondent had not failed to bargain
in good faith, and therefore had not violated Section
8(a)(5) and (I) of the Act. Although he found certain
aspects of Respondent's bargaining tactics to be evi-
dence of a determination not to bargain in good faith,
he concluded that such evidence was negated by the
fact that the parties ultimately did reach an agree-
ment and execute a contract.
We do not agree with the Administrative Law
Judge's analysis or conclusion regarding this issue.
We do not think that Respondent's bargaining tactics
prior to July, 14, which we find to be violative of the
Act, can be excused by the bargaining and resulting
contract that occurred thereafter, even assuming that
the subsequent bargaining was in good faith." In this
regard, we agree with a statement made by the
United States Court of Appeals for the Ninth Circuit
in N.L. R.B. v. Ramona ' Mexican Food Producl's,
Inc.' There, the court, in enforcing a finding by the
Board that the respondent therein had, inter alia,
failed to bargain in good faith, stated that:
We have examined the documents offered by
the Company and conclude that the Law Judge
was correct in rejecting each of them as irrele-
vant to the issues. The ultimate terms of the post
strike agreement reached after a long unsuccess-
ful unfair labor practice strike infers more to the
success of the Company officials' evasive stalling
and unlawful tactics than it does to the presence
of good faith bargaining.
It is well settled that determination as to whether a
respondent has demonstrated adherence to the princi-
' See L H & J. Coal Company, Inc, 228 NLRB 1091. 1097 (1977): Lar-
and Leisurelies. Inc.. 213 NLRB 197. fn. I (1974).
12 Cf. Carpenters' District Council of Jacksonille, Florida and Vicinity and
Carpenters Local Union No. 627 of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and North Florida Carpenters Joint Appren-
ticeship Committee. 221 NLRB 876 (1975).
1 531 F.2d 390. 395 (9th Cir. 1975). enfg. 203 NLRB 663 (1973).
28()
UNITED BROTH[. OF CARPENTERS & JOINERS. LOCAI. 178(0
pies of good-faith bargaining is made by "drawing
inferences from the conduct of the parties as a
whole."'4 Applying this standard to Respondent's en-
tire course of conduct, we find that, at least until July
14, Respondent did not bargain in good faith.
In the first instance we rely on the fact that Con-
nely, Respondent's chief negotiator, although vested
with limited authority by the executive board, had
little direction from that body until May 31, approxi-
mately 35 days after negotiations began. While Re-
spondent is not required to be represented by an indi-
vidual with final authority to enter into an agreement.
this privilege is subject to the proviso that such a limi-
tation does not act to inhibit the progress of negotia-
tions. In the instance case, we are of the view that by
limiting Connely's authority, and then absenting
themselves from negotiations, Respondent's executive
board created possibilities for delay and obstruction
which do not comport with the duty to bargain in
good faith.' 5
Further evidence of Respondent's failure to bar-
gain in good faith is the fact that at the June 20 meet-
ing Connely reneged on proposals that tentatively
had been agreed upon without giving any explanation
for their retraction other than to state, "That's what
the Executive Board wanted." In our view, it is ap-
parent that withdrawal by an employer of proposals
tentatively agreed upon without any attempt to justi-
fy the reasons therefore obstructs the collective-bar-
gaining process.'6 We also note that on June 20, Con-
nely stated that the Respondent's proposal was its
final offer, and that the Union could "take it or leave
it." It is beyond dispute that adopting a "take it or
leave it approach" to negotiations constitutes evi-
dence of bad faith.' 7 Although Respondent did con-
tinue to negotiate after this statement, the record
demonstrates that, until July 14, Respondent also
continued to reduce its offers regarding certain eco-
nomic benefits below its initial proposal and, in cer-
tain instances, below existing benefits. We consider it
to be inimical to the principles of good-faith bargain-
ing for an employer to offer, without adequate expla-
nation, proposals less favorable than those previously
offered and rejected, especially when no significant
compensatory proposals are involved.8 Finally, when
Respondent's unlawful conduct away from the bar-
14 N.L R.B. v. Insurance Agents' International Union. A FL CIO Pruden-
tial Insurance Company], 361 U.S. 477. 498 (1960).
"5 See J. P. Stevens & Co., Inc., 239 Nl.RB 738 (1978). Coronet (lsuals.
Inc., 207 NLRB 304 (1973).
6"See The General Athletic Products Contpanv, 227 NLR 1565. 1574
(1977).
1I N. LR.B. v. Insurance Agents' International Union. A FL ('10 Pruden-
tial Insurance Co.], 361 US at 486.
Pacific Grinding Wheel Co., Inc., 220 NLRB 1389 (1975). enfd 572 .2d
1343 (9th Cir. 1978). See also Tomco Communiuations, Inc. 220 NL.RB 636
(1975), enforcement denied 567 F.2d 871 (9th Cir. 1978); Romni Pper Prod
urcs Corp., 220 NLRB 519 (1975).
gaining table, which we have fully detailed aboe is
viewed together with the intransigent and somewhat
cavalier attitude it exhibited at the bargaining table.
we find that Respondent's overall approach to nego-
tiations undermined the basic concepts of meaningful
collective bargaining.'9 Accordingly, we find that.
based on the totality of its conduct. Respondent vio-
lated Section 8(a)(5) and ( I ) of the Act.
As not above, since the Administrative Law Judge
did not find the alleged violation of Section 8(a)(5) oft
the Act, he concluded that the strike was an economic
strike, and therefore the strikers were entitled only to
the reinstatement rights of economic strikers as set
forth in Te Laidlawi (rporalion. 2" lie found. how-
ever, that hb refusing to reinstate three of the strikers
without sufficient economic justification Respondent.
in effect, discharged them in violation of Section
8(a)(3) and (I) of the Act.
It is settled that a strike is an unfair labor practice
strike if one of its causes is the employer's unfair la-
bor practice, notwithstanding the presence of eco-
nomic issues. 21
We think the record, as outlined aboxe. clearl
demonstrates that the strike was motivated, at least in
part. by the Respondent's bargaining posture up until
the time of the strike. In view of our finding that
Respondent's conduct during this period violated
Section 8(a)(5) and ( I) of the Act, we find, contrary to
the Administrative Law Judge. that the strike com-
mencing on July I was an unfair labor practice strike.
Accordingly. the strikers are entitled to the full re-
instatement rights of unfair labor practice strikers.
The record demonstrates that on July 20, all of the
striking employees made an unconditional offer to re-
turn to work. On Jul, 22, Respondent refused this
offer by a telegram indicating that Driscoll, Treichel.
and McElrath would not he immediately reinstated.
but rather would he placed on a preferential hiring
list. By refusing to immediiately reinstate three unfair
labor practice strikers. Respondent violated Section
8(a)(3) and ( I of the Act.22
In accordance with our findings above and upon
consideration of the entire record, we make the fIl-
lowing:
CO()N('IUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners
of America. AFL CIO. Local Union No. 1780, is an
See (Cag/it' Ia . 234 NLRB 1148 (1978. enl'd 588 F 2 943 (5th ('ir
1979).
2
171 NLRB 1366 (1968)
2m National Fresh Fruit & P'eguetl/e ('omn!pani. uawhil BAmno ('C,. i,
227 NI.RB 2014 (1977); (' & F Si,,r, In,l . (' & It ' Suirilual'u, DtIi,,l. 221
NLRB 1321. 1322 (1976).
22 Dubo Manufacturing (orportlion, 148 N LRB 1073 1964). entd. 351
F.2d 157 (6th Cir. 1965).
281
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. Office and Professional Employees Union, Local
No. 445, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. Since on or about February 8, 1977, the Union
has been the exclusive representative for the purposes
of collective bargaining of the employees in the fol-
lowing unit:
All full-time and regular part-time office clerical
employees employed by the United Brotherhood
of Carpenters and Joiners of America, AFL-
CIO, Local Union No. 1780 at its Las Vegas,
Nevada, office: but excluding all other employ-
ees, including business representatives, guards,
and supervisors as defined in the Act.
4. By refusing to bargain in good faith with the
Union as the exclusive representative of the employ-
ees in the above-described unit, Respondent engaged
in unfair labor practices within the meaning of Sec-
tion 8(a)(5) and (1) of the Act.
5. By denying striking employees Driscoll.
Treichel, and McElrath reinstatement on July 25,
1977, upon their unconditional application, because
of their union and concerted activities, Respondent
discriminated against them to discourage member-
ship in a labor organization in violation of Section
8(a)(3) and (I) of the Act.
6. By engaging in the following conduct, Respon-
dent committed unfair labor practices in violation of
Section 8(a)(1) of the Act:
(a) Telling employees that they will not receive
any benefits from negotiations.
(b) Threatening employees that bargaining propos-
als will get worse as negotiations progress.
(c) Telling employees that they always will have
better terms and conditions of employment without a
contract.
(d) Stating that one particular employee is the rea-
son that negotiations are not succeeding and intimat-
ing that if she is discharged negotiations will progress.
(e) Soliciting employees to cross their own picket
line.
(f) Photographing employees while they are en-
gaged in peaceful picketing.
(g) Threatening to terminate employees if they ex-
ercise their right to strike.
7. The above-described unfair labor practices af-
fect commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in un-
fair labor practices in violation of Section 8(a)(1), (3),
and (5) of the Act, we shall order that it cease there-
from and take certain affirmative action designed to
effectuate the policies of the Act.
As we have found that Respondent has unlawfully
failed or refused to reinstate unfair labor practice
strikers. June Driscoll, Judy Treichel, and Karen
McElrath, we shall order that Respondent offer the
three above-named individuals immediate reinstate-
ment to their former positions or, if such jobs no
longer exist, to substantially equivalent positions,
without loss of seniority and other rights and privi-
leges previously enjoyed, discharging if necessary,
and replacements hired. We shall further order that
Respondent make June Driscoll, Judy Treichel, and
Karen McElrath whole for any loss of earnings or
other benefits they have suffered as a result of the
discrimination against them from the date Respon-
dent unlawfully refused to reinstate them to the date
of Respondent's offer of reinstatement, in accordance
with the Board's formula set forth in F. W. Wool-
worth Company, 90 NLRB 289 (1950), with interest
thereon to be computed in the manner prescribed in
Florida Steel Corporation, 231 NLRB 651 (1977).23
We shall order that Respondent preserve and make
available to the Board or its agents, upon request, all
pertinent records and data necessary to determine the
amount of backpay due, and we shall order Respon-
dent to post appropriate notices. Finally, since Re-
spondent has engaged in unfair labor practices of a
sufficiently egregious nature as to demonstrate a dis-
regard for its employees' fundamental statutory
rights, we shall order Respondent to cease and desist
from in any other manner infringing upon the rights
guaranteed to its employees by Section 7 of the Act.2 4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO, Local Union No. 1780, Las Vegas, Ne-
vada, its officers, agents, and representatives, shall:
I. Cease and desist from:
(a) Refusing to bargain in good faith with the Of-
fice & Professional Employees Union, Local 445,
AFL-CIO as the exclusive representative of the em-
ployees in the unit described below, concerning rates
of pay, wages, hours of employment, and other terms
and conditions of employment:
All full-time and regular part-time office clerical
employees employed by United Brotherhood of
See, generally. Isis Plumbing & Heating Co. 138 NLRB 716 (1962).
4 See Hickmot Foods, Inc.. 242 NLRB 1357 (1979).
282
UNITED BROIHI). OF CARPENTERS & JOINERS, LO(AL 1780
Carpenters and Joiners of America, AFL-CIO,
Local Union No. 1780. at its as Vegas, Nevada,
office; but excluding all other employees, includ-
ing business representatives. guards, and supervi-
sors as defined in the Act.
(b) Discouraging membership in the Office and
Professional Employees Union, Local No. 445. AFL
CIO. or any other labor organization. by refusing to
reinstate or otherwise discriminating against employ-
ees for engaging in a protected strike or other lawful
union or concerted activities for the purposes of mu-
tual aid and protection.
(c) Telling employees that they will not receive any
benefits from negotiations.
(d) Threatening employees that bargaining propos-
als will get worse as negotiations progress.
(e) Telling employees that they always will have
better terms and conditions without a contract.
(f) Indicating to employees that one particular em-
ployee is the reason negotiations are not succeeding
and intimating that if she is discharged negotiations
will progress.
(g) Soliciting employees to cross their own picket
line.
(h) Photographing employees while they are en-
gaged in peaceful picketing.
(i) Threatening to terminate employees if they ex-
ercise their right to strike.
(j) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them by Section 7 of the National Labor
Relations Act, as amended.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Upon request, bargain in good faith with the
Office and Professional Employees Union, Local 445.
in the unit described above, and, if an understanding
is reached, embody such understanding in a written
signed contract.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
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.
(c) Offer to June Driscoll, Judy Treichel, and Ka-
ren McElrath immediate and full reinstatement to
their former positions or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority and other rights and privi-
21 Nothing herein is to be construed as impinging in any way upon the
validity of the collective-bargaining agreement executed by the parties on
January 18. 1978.
leges previously enjoyed. discharging. it necessary,
any replacements hired, and make June [)riscoll,
Judy Treichel, and Karen McElrath whole for any
loss of earnings or other benefits suffered as a result of
the discrimination against them, in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Post, at its office in Las Vegas, Nevada, copies
of the attached notice marked "Appendix. "26 Copies
of said notice, on forms provided by the Regional
Director for Region 31. after being dulN signed by
Respondent's representative. shall be posted by Re-
spondent immediately upon receipt thereoft and be
maintained by it for 60 consecutive das thereafter, in
conspicuous places, including all places where notices
to employees customarily are posted. Reasonable
steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(e) Notift the Regional Director tor Region 31. in
writing, within 20 days from the date of this Order.
what steps Respondent has taken to compl herewith.
26 In the eent tht his Order is enforced h a Judgment of a niled
States Ctourt of Appeals. the words it the notice reading "Posted by Order of
the National Labor Relations Board" shall read "Posted Pursualnt to a Judg-
ment of the United States Court o Appeals nforcing an Order of the Na-
tilnal I hor Relations oard"
APPEN[)IX
No [Ici To EPl.OYEE.iS
PosIID) BY ORDER ()F 1111
NAII()NAI. LABO)R RAII()NS BARD
An Agency of the United States Government
After a hearing, the National Labor Relations Board
has found that we violated the National Labor Rela-
tions Act, as amended, and has ordered us to post this
notice. We will abide by the following:
WtE WILL. NOT refuse to bargain in good faith
with the Office and Professional Employees
Union, Local 445, AFL-CIO, as the exclusive
representative of the employees in the unit de-
scribed below. concerning rates of pay, wages.
hours of employment, and other terms and con-
ditions of employment.
WE- WILL NI discourage membership in the
Office and Professional Employees Union, Local
No. 445, AFL-CIO. or any other labor organiza-
tion, by refusing to reinstate or otherwise dis-
criminating against employees for engaging in a
protected strike or other lawful union or con-
certed activities for mutual aid and protection.
WL Wll.l NOT tell employees that they will not
receive any benefits from negotiations.
283
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WIll. NOT threaten employees that bar-
gaining proposals will get worse as negotiations
progress.
WE WILL NOT tell employees that they always
will have better terms and conditions of employ-
ment without a contract.
WE WILL NOT state that one particular em-
ployee is the reason that negotiations are not
succeeding and intimate that if she is discharged
negotiations will progress.
WE WILL NOT solicit employees to cross their
own picket line.
WE WILL. NOT photograph employees while
they are engaged in peaceful picketing.
WE WILL NOT threaten to terminate employees
if they exercise their right to strike.
WE WILL NOT, in any other manner, interfere
with, restrain, or coerce our employees in the ex-
ercise of their rights under Section 7 of the Na-
tional Labor Relations Act, as amended.
WE WILL, upon request, bargain in good faith
with the Office and Professional Employees
Union, Local No. 445, AFL-CIO. in the unit de-
scribed below with respect to rates of pay, wages.
hour of employment, and other terms and condi-
tions of employment, and, if an understanding is
reached, embody such understanding in a signed
agreement:
All full-time and regular part-time office cleri-
cal employees employed by United Brother-
hood of Carpenters and Joiners of America.
AFL-CIO, Local Union No. 1780, at its Las
Vegas, Nevada office: but excluding all other
employees, including business representatives,
guards, and supervisors as defined in the Act.
WE WILL offer June Driscoll, Judy Treichel.
and Karen McElrath immediate and full rein-
statement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions
without prejudice to their seniority or other
rights or privileges previously enjoyed.
WE WIL make June Driscoll, Judy Treichel,
and Karen McElrath whole for any loss of earn-
ings or other benefits they suffered as a result of
the discrimination against them, with interest.
UNITED BROTHERHOOD OF CARPENTERS
AND JOINERS OF AMERICA, AFL CIO, Lo-
CAL UNION No. 1780
DECISION
STATEMENT OF THE CASE
BERNARD J. SEFF, Administrative Law Judge: This case
came for hearing before me on various dates from May 30
to June 21, 1978. in Las Vegas, Nevada.' The case involves
the United Brotherhood of Carpenters and Joiners of
America. AFL CIO, Local Union NO. 1780. acting as the
Employer, and Office and Professional Employees Union.
Local No. 445. AFL CIO, hereinafter referred to as Local
445 or Clerks. The complaint alleges that the Carpenters
were guilty of refusing to bargain in good faith and thereby
violated Section 8(a)(5) of the Act. Flowing from and de-
pendent on the proof of this alleged violation, the Carpen-
ters, by telling the Clerks that if they went out on strike.
they would "walk forever," which, if found as alleged. is in
violation of Section 8(a)(1). Certain employees did strike
and were initially denied reinstatement after making an un-
conditional request to be returned to work, which is hereaf-
ter described by the General Counsel as being an unfair
labor practice strike.
After the close of the hearing, the General Counsel and
Respondent submitted briefs which have been duly consid-
ered.
Upon the entire record made in this proceeding, includ-
ing my observation of the demeanor of the witnesses as they
testified. and with due consideration of the briefs, I hereby
make the following:
FININ)IN(S () FA(I
1. III. HBUSINESS O() RSPONDiEN
The original complaint in this case was issued on Febru-
ary 28, 1978. The original charge was dated July 25, 1977.
An amended charge dated August 29, 1977. was also filed.
At all times material herein, Respondent, a local union
affiliated with the International Brotherhood of Carpenters
and Joiners of America, AFL CIO, herein called the Inter-
national, has maintained its principal place of business in
Las Vegas, Nevada, where it is engaged in organizing un-
represented employees and representing its members and
other employees in collective bargaining with various em-
ployers concerning wages, hours. and other terms and con-
ditions of employment.
Respondent is now and has been at all times material
herein, an integral part of the International, which has an
annual inflow from its affiliated locals in various States of
the United States in excess of $1 million.
Respondent, in the normal course and conduct of its op-
erations, collects dues, fees, and assessments from its mem-
bers and annually receives a gross income from this and
other sources in excess of $500,000, of which per capita tax
in excess of $50,000 is remitted annually from Respondent's
Las Vegas, Nevada, office to the International located in
Washington, D.C. Respondent is and has been at all times
material, engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
11. 111 I.LABOR ORGANIZAIION INVOLVID)
Office and Professional Employees Union. Local No.
445, AFL-CIO, is a labor union within the meaning of Sec-
tion 2(5) of the Act.
I All dates are in 1977. unless otherwise stated.
284
N II[) B3RO tI). ()- ('ARP'NTlIRS & JOIN RS. I.OCAL 178(O
111. II1 1 \ I I(I;:) MA N I X R NBiR PRA i IS
The following-described employees of Respondent con-
stitute a unit appropriate for the purpose of collectixe bar-
gaining within the meaning of Section 9(b) of the Act:
All full-time and regular part-tinme olffice clerical em-
ployees of Respondent. but excluding all other employ-
ees. including business representatives, guards and su-
pervisors as defined in the Act.
On or about January 18. 1977. a majority of the employ-
ees of Respondent in the unit described above designated or
selected the Union as their representative for the purposes
of collective bargaining with Respondent. At all times since
January 18. and continuing to date, the Union has been the
exclusive representative for the purposes of collective bar-
gaining of the employees in the unit described above by
virtue of Section 9(a) of the Act, and has been, and is now,
the exclusive representative of all the employees of this unit
for the purposes of collective bargaining with respect to
rates of pay, wages, hours of employment, and all other
terms and conditions of employment.
By letter dated February 8. Respondent. acting through
Charles Connely, business representative, recognized the
Clerks as exclusive collective-bargaining representative of
the employees in the unit described above and agreed to
meet and bargain with them.
A. The /.ssue.s
The following issues are in question:
(1) Whether the Respondent violated Section 8(a)(5) by,
bargaining in bad faith: (2) if so, did the bad-faith bargain-
ing cause or prolong the strike: and (3) if so, did Respondent
violate Section 8(a)(3) of the Act by refusing to reinstate the
strikers as required under Laidlaw. In other words. if there
was bad-faith bargaining and this caused or prolonged the
strike, the strikers are unfair labor strikers and are therefore
entitled to special reinstatement rights under Fleetwood
Trailer and Laidlaw.
The General Counsel predicates his entire case upon a
finding of 8(a)(5) refusal to bargain by Respondent. Most of
the other alleged unfair labor practices will flow only from
a finding of that violation. If there is an 8(a)(5) refusal to
bargain, then the clericals' strike, which occurred as a result
of their failure to reach agreement with the Carpenters
Union, was an unfair labor practice strike. When such a
strike exists. the Employer. upon an unconditional request
for reinstatement, must reinstate the unfair labor practice
strikers to their original positions. discharging any replace-
ments that might have been hired. Failure to do so is in
itself an unfair labor practice discrimination in violation of
Section 8(a)(3) of the Act: which would require a remedy
ordering reinstatement with appropriate backpay.
If there is not an 8(a)(5) refusal to bargain, then the strike
is merely an economic strike, and the economic strikers are
only entitled to reinstatement if no permanent replacements
have been hired prior to their request for reinstatement. It
appears that in the instant case. the situation involves the
fact that permanent replacements were hired before the
strikers' request for reinstatement. In such a case. the eco-
nonlic strikers under 7'11 Laidl/a (Cor t nolt, 171 N LRB
1366 (1968). only have the right to reinstatement when and
it' the permanent replacements leave of their own accord.
Thus. if there is no 8(a)(5) ,iolation there is no unfair labor
practice strike and no right to immediate reinstatement.
I'here is an independent 8(a)(I) violation i in fact, Re-
spondent made a statement that "if the employees walk.
they would walk forever." It should be pointed out that the
General Counsel does not attempt to draw this 8(a)( I) vio-
lation into the strike as either a precipitating or prolonging
fact. As will later he developed, the facts suggest that the
strike was begun because of an inability of the clerical em-
ployees to obtain satisftactory results at the bargaining ta-
ble. The strike was planned before the above-quoted state-
ment was made. The strike ended when progress occurred
on economic issues, and the strike was not prolonged by
reinstatement controversies. It should be pointed out that
the mere existence of an unfair labor practice by an em-
ployer, contemporaneously with the start of a strike, will
not automatically make that strike an unfair labor practice
strike. La-Ron Corporation d/b/a Precision Carpet. Inc..
223 NLRB 329 (1976).
It would appear that the General Counsel's exclusive re-
liance on the 8(a)(5) refusal to bargain as the cause of the
strike suggests that the General Counsel has implicitly re-
jected 8(a)( I) as such a cause. Therefore, unless the 8(a)(5)
refusal to bargain is found, there cannot be an unfair labor
practice strike in the case, and the charges regarding rein-
statement violations would appear to require dismissal.
B. Di7e 41legeed I'iol trion of'Seclionl 8(a)(s)
There were eight bargaining sessions: April 26. May 17
and 24. June 20. and July 5. 7. 14, and 20.
In addition to the bargaining sessions mentioned above.
there were four mediating sessions which took place July 5,
7. 14. and 20.
C. The Smllmloatioi o/the Generalr/ Counsel's Comnplalint
The General Counsel's brief summarizes the material in
the complaint as follows:
The complaint alleges that Respondent violated Sec-
tion 8(a)(5). (3) and (I) of the Act by engaging in col-
lective bargaining with no intention of reaching agree-
ment: offering collective-bargaining proposals which
included terms of employment significantly less than
those existing prior to the commencement of the nego-
tiations: reneging and/or changing position on con-
tract terms to which they had previously agreed: tell-
ing an employee that employees would have received
better terms and conditions of employment if they had
not gone on strike: telling Local 445 and employees
that no more proposals would be forthcoming and that
Local 445 could "take it. or leave it": telling Local 445
and employees that Respondent would not meet fur-
ther unless the Union agreed to it final proposal: in-
ducing an employee to cross a picket line: soliciting an
employee to induce other employees to cross a picket
line and threatening that employee with discharge if
285
I) ('lISI()N S OF NA I IONAI I.ABOR REIAI N()NS BOARI)
thes did not do so: conditioning and reaching a con-
tract upon the termination of an emploxee: telling an
emploee that Iocal 445 would not get anything from
negotiatiis: threatening to fire employees engaged in
a strike: telling employees that Respondent's proposals
would keep getting worse. thit the employees would
get nothing better. and threatening employees with dlis-
charge for engaging in protected activity. The com-
plaint further alleges that commencing on or about
Jul 1. certain employees of Respondent commenced a
slrike which was caused and prolonged by the Respon-
dent's unfair labor practices delineated above. Finally
the complaint alleges that on or about July 20. those
employees who had previously struck made an uncon-
ditional offer to return to work, anll offer which was
refused by Respondent on or about July 22. and con-
tinuing to date.
[). .4nth.'i. tl cd Gcm'rzcl on,.siderltions
One of the most difficult aspects of the judicial tasks im-
posed by the Act is that of distinguishing between the law-
ful from the unlawful in the context of "hard" bargaining. 2
I am indebted for the excellent collation of Board and court
decisions as to what constitutes a refusal to bargain as well
as for the explanatory comments of Administrative Law
Judge Richard L. Boyce.
The Act itself reveals not so much what is proscribed as
what is not. Section 8(b) of the Act. while it does state that
the 8(a)(5)/8(h)(3) bargaining obligation is "mutual" as be-
tween employer and union,4 defines the obligation onl in
the abstract as one of "meeting at reasonable times and
conferring in good faith." The Section later specifies that
the obligation "does not compel either party to agree to a
proposal or require the making of a concession." This latter
part was construed by the Supreme Court to mean that "the
Board may not, either directly or indirectly. compel conces-
sions or otherwise sit in judgment upon the substantive
terms of collective bargaining agreements."' when read to-
gether with Section 13 of the Act which states: "Nothing in
this Act. except as specifically provided for herein, shall be
construed so as either to interfere with or impede or dimin-
ish in any way the right to strike, or to affect the limitations
or qualifications on that right."'
This provision also has created problems, for it means
"abstract logical analysis" perhaps to the contrary that
2 See, generally. Cox, "The Duty to Bargain in Good Faith." 71 Harv. L.
Rev. 1402 (1958); Wellington, "Freedom of Contract and Collective Bar-
gaining Agreement." 112 U. Pa. L. Rev. 467 (1964).
Graphic Arts Internaional nion. Local 280 (Samuel L. Holmes) 235
NLRB 1084 (1978).
4 As noted by the Supreme Court, it was the intent of Congress. when
enacting Sec. 8(b)(3). to condemn in union spokesmen those bargaining ali-
tudes "that have been condemned in management" bh the previously en-
acted Sec. 8(a)(5). N L.R B. v. Insurance Agents International mnion. AFI.
CIO [Prudential Ins. (Co/. 361 U.S. 477. 487 (1960).
N ..R.B v. American National Insurance Ca. 343 U.S. 395, 404 1952).
has been an inhibiting and confounding influence of the delineation of bad
faith.
6An overtime ban in support of a bargaining objective is to strike for
purposes of the Act. I.ocal 742. International USlion or Electrical Radio and
Machine Workers..4 F. CO (Randall Bearings. Inc i. 213 NI.RB 824 t 1974).
"the use of economic pressure . . . is in itself not at all
inconsistent with the duty oit bargaining in good falith."'
It should bhe stated that the Act otherwise olffers no real
signs by which to tell good- from bad-faith bargaining:
"The principal task of elaboration was left for the Board
and the courts."' Nor does the reading of' the cases reduce
the subject to perfect understanding. In fact, it can be said
that "there is more than enough scripture upon the subject
to enable an 5 devil to cite some of it for his purpose.
" '
llowcecr despite the difficulties, certain guidelines do
emerge. First, the test is frmed of subjective attitude to
quote from .L. R.B. v. Rctc d& Primnt c Miuf/illuring ( orIn-
patir, which is a significant decision in the area:
The ultimate issue whether the ('orompan (or union)
conducted its bargaining negotiations in good fitith in-
volves a finding of motive or state of mind which can
only be inferred from circumstantial evidence. It is
similar to the inquiry whether an employer discharged
an employee for union activit . .. .
Second, the requisite good faith has been defined vari-
ousN as "''a desire to reach ultimate agreement. to enter into
a collective-bargaining contract," N 'I..R.B. v. . ln.surance
Ag,'ents' Union. supra at 361 U.S. 485: "a willingness to ne-
gotiate toward the possibility of effecting compromises"; a
"willingness among the parties to discuss freely and fully
their respective claims in demands and, when these are op-
posed. to justif ' them on reason":12 and "the serious intent
to adjust differences and to reach an acceptable common
ground. " '3 ood faith is "inconsistent with the predeter-
mined resolve not to budge front an initial position":'4 "re-
quires more than a willingness to enter upon a sterile dis-
cussion of union-management differences . .. [yetJ does not
encourage a party to engage in fruitless marathon discus-
sions at the expense of' frank statement and support of his
position":"' and it is not satisfied by "the most willingness
of one party in the negotiation to enter into a contract of his
own composition. " l
Much of the difficulty with cases such as the instant case
is that of' reconciling notions of' good faith just cited with
the earlier quoted savings provision of Section 8(b). The
Supreme Court has stated:
Obviously there is tension between the principle that
the parties need not contract on any specific terms and
a practical enforcement of the principle that they are
bound to deal with each other in a serious attempt to
resolve differences and reach a common ground.l7
N''. ..R B v. Insurance Agents' Union. supra at 489 491.
8Wellington. supra at 470.
9 Shattuck Denn Mining Corporatcon Iron King Branhi v. N.L.R.B.. 362
F.2d 466. 469 (9th Cir. 1966).
30205 F2d 131 139 140 (Ist Cir. 1953).
A 4ssoiated General Contractors o/ America. Eansville Chapter. Inc. v.
' l R B. 465 F.2d 327. 335 (7th Cir. 1972).
'11 .L R.B. v. George P. Pilling & Son Co.. 119 F.2d 32. 37 3d Cir. 1941).
11 'al-Lite Division of United Stalte (;Gpsum C(ompan. 2(00 NLRB 1098,
1101 1t 972). enforcement denied 484 F.2d 108 (8th Cir. 1973).
14 I. R.B. v. Truitt Mfg. Co.- 351 U.S 149. 154 (1956). (Note separate
Erankfurter pinion.)
1 N L RB. v. American National Insuran (,,, upra a 404
t L'S. Gipsuoi Co.. supra at 101.
I 5'. R. B. v. Insurance A4gent' Intcernational U'nion. .4 FL CIO, 316 U.S.
477. 486 1960).
28(
I N1111) BR()I'HI). 01: C(ARPN'I'FRS & JO()INERS. I.()<'AI 1780
In connection , ith the toregcing discussion, it should he
stated that:
[I]he negotiation of labor contracts is not a gentle art.
.. hat may appear to he all unreasonable, obdurate
demand may be no more than the skillful practice of
:he negotiator's art, designed to wring concessions
from the opposite side.'"
Therefore. it can be said that good faith "is not necessar-
il incompatible with stubborness or even with what to an
outsider ma' seem unreasonableness":' a position "genu-
inel\ and sincerely held ... mai be maintained forever
though it produce a stalemate." 2'' and "intransigence of it-
selfl' does not establish had fiith."' But again as stated in
N. L. R B. v. Reed & Prince M;fg. Co..
. . . hile the Board cannot force an employer or
union] to make a "concession" on anN specific issue or
to adopt any particular position. the employer or
union] is obliged to make some reasonable effort in
sonaw direction to comptose his differences w ith a union
(or employer] if Section 8(a)(5i [and 8(b)(3)] is to be
read as imposing any substantial obligation at all.:
To summarize, bargaining rigidity is neither irrelevant to.
nor conclusive. of the inquiry. Although its presence alone
does not equate with bad faith, it is virtually indispensible
to such finding "concessions ... . raise a strong inference
of good faith."" That is to say that the degree of the rigid-
ity. its nature, and the circumstances of its exercise are
among the aggregate of factors to be weighed when assess-
ing bargaining conduct.2? By whom the bargaining is exer-
cised employer or union probahlN also figures in the
equation, the mutuality of bargaining obligation notwith-
standing. On the one hand, because of his control of the
"purse strings," an employer often stands to gain more from
a bargaining impasse than does a union, for he then can
institute unilateral changes far beyond those at union dis-
posal.2 5 A union, by contrast, rarely is motivated not to seek
some sort of contract. Other factors, too, may contribute to
the entrance of bad faith and can include, among myriad
variations; failure to invest the spokesman with that au-
"8 United Steelworkers of America.4 AFL CIO . ' L. R B. 441 F.2d 1005.
1008 (D.C. Cir. 1970).
'9 N.L.R.B . Truilt Mfg. Co., supra at 155.
l0 N.L. R. B. v. A meida Buslmne. supra at 731.
L'.S. Gvpsum Co.. supra at I 00.
22205 F.2d 134. 135 (Ist Cir. 19531.
21 N.L.R.B. v. General Electric Company. 418 F.2d 736. 758 2d Cir. 1969).
14 See Chauffeurs, Teamsters and Helpers, Local Union No. 301 (Merchant.
Moving and Storage, Inc.), 210 NLRB 783. 786 ( 1974): Local Union No. 103.
Iron Workers, AFL-CIO (Associated General Contractors of America, Evans-
ville Chapier, Inc. ) 190 NLRB 741. 742 (1971): The Proctor d Gamble Manu-
facturing Companm. 160 NLRB 334. 338 339 (1966). During the hearing,
citing the celebrated General Electric Boulwartsm decision. the General
Counsel seemed to contend that Respondent's rigidity alone established a
violation. General Electric Compan,, 150 NLRB 192 (1964). While it is true
that p. 194 of that decision contains language indicative of such a per se
approach. "a party who enters into bargaining negotiations with a 'take it or
leave it' attitude violates ts duty to bargain " Later decisions. including
those cited in this footnote, reaffirm the need to prove subjective bad faith In
the hard-bargaining situation.
2' N.L.R.B. v. Benne Kat:, d/b/a Williamsburg Seel Products Co. 369
U.S. 736 (1962). Ben Cutler v. N.L.R.B.., supra, at 290; Proctor & Gamble
Manufacturing Companv, supra at 338.
thority enabling mneaningul give-and-take: altering the sub-
stlailce of' proposals and reneging on tentattixe agreements
summarily rejecting the others' proposals on a broad scale:
and adsvancing proposals at once unreasonable and predict-
abhl without prospect of' acceptance, Ihere is still another
gulideline to emerge, not so much trotm a re;dinli of the
cases as from common policy sense. It is llhat. even though
a parts brings to the bargaining an attitude of bad faith.
there call he no violation or at least no renmedh absent
the showing that the had aith somehow crippled the nego-
tiations.
Applying the principles enumerated aboe to the facts at
hand. it is concluded that Respondent did not lack the req-
uisite good faith in its negotiations because despite the alle-
gations in the complaint, the parties did reach agreemen t
on a contract and executed the same.
The General Counsel seeks to make much of his coniclu-
sion that ('onnely lacked authorit) to make concessions
and, in fact, lacked authorit) to conduct negotiations with
the view towards reaching a conclusion. This attitude of the
General C(ounsel is belied hs the fact that C(onnely tre-
quentl' stated. in the course of his negotiations, that certain
proposals of the Clerks could not be accepted b the Car-
penters and he used language such ats: "I can recommend
this: I don't think I can sell that':" in sumi. ('Connel's au-
thorit! must necessarily have been limited to the knowledge
of the negotiators because four clerical emplosees have
worked for the Carpenters Union for a number of sears and
knew that all matters have to he submitted to the executive
board and if approved hb them, must be offered to the
membership for their approval through a ote. In an
event. a number of the General Counsel's allegations are
obviously without substance where he alleges in allegation
I I:
Commencing on or about June 20, 1977, and at all
times thereafter. Respondent did refuse, and continues
to refuse. to bargain collectively with the Union as the
exclusive collective-bargaining representative of all
employees in the unit described above in that:
(a) Respondent engaged in collective bargaining
with the Union with no intention of reaching an agree-
ment.
(b) On or about June 20 and Jul 5 Respondent
offered counter collective-hargaining proposals which
included terms of employment significantly less than
those existing prior to the commencement of negotia-
tions.
(c) On or about June 20 and July 5, 1977. Respon-
dent reneged and/or changed its position on contract
terms to which it had previously agreed.
Obviously. allegation II and its subdivisions have no
substance and must be dismissed because, in fact, the Car-
penters did agree with the Clerks and executed a contract
which is included in the record.
Paragraph 14 alleges the strike described in paragraph 13
above:
(a) was caused and provoked by the unfair labor prac-
tices of Respondent described in paragraph II above
and lb) was prolonged by the unfair labor practices of
Respondent described in paragraphs 16 and 17 below.
287
I)I('ISIOS NA NAIABO R IONS B TIO AL LAB R ELATI OARD)
In fact. whait happened in this case is that the employees
were unsuccessful initially in securing terms of a contract to
their liking, a.tl they went on strike because of' their failure
to secure the economic demands which they had made
upon the Carpenters. The lact that later the employees who
went on strike to enforce their economic demands encoun-
tered great difliculty in being reinstated constitutes an un-
lhir labor practice, but not one related to the allegation of
refusal to bargain. T'here is no nexus between the reason for
the employees going out on strike and the subsequent re-
fusal of the Carpenter's to reinstate those employees who
unconditionally applied for reinstatement. The subject mat-
ter of the refusal to reinstate comprises a separate and dis-
tinct violation of Section 8(a ) I ) and (3). which will be dealt
with ila.
Both the General Counsel and Respondent place particu-
lar emphasis on the bargaining session that took place on
June 20. Substantial differences separated the parties on the
negotiations which took place on that day as follows:
(a) Benefits for part-time employees: (b) whether health
and welfare and pension contribution increases during the
term of the contract would come out of the wage package
or would be paid by the Employer over and above a wage
increase: (c) overtime and the 2- or 4-hour guarantee: (d)
holidays and whether Saturday would be considered as a
holiday: and (e) sick leave and vacation pay.
In addition. there were differences and there was no
agreement on whether there should be a paid leave of ab-
sence for certain itemized circumstances: including senior-
ity for part-time employees.
It was in this meeting that the Clerks' union representa-
tive, Mr. Groulx, told Connely that the offer was "just a
bunch of crap." Groulx threatened to file unfair labor prac-
tices, and he charged that Connely and the Carpenters Lo-
cal 1789 have engaged in bad-faith bargaining.
It was after the remark by Groulx that it was a "bunch of'
crap" that Connely then told the Clerks "go ahead and do
what you have to do."
It was after this bargaining session that the clerical em-
ployees talked about going on strike. According to the testi-
mony of the clerical employees, when Connely told them
that what had been offered on June 20 was the final posi-
tion of the Carpenters. then the office employees would
have no other alternative except to go out on strike. On
June 29, the four employees who were members of the
Clerks Union voted to go on strike.
In order to understand the frustration of the clerical em-
ployees, it is helpful to record the terms and conditions of
the employment prior to the advent of the Union:
(I) Wages of $7.10 after I year of service: (2) wage in-
creases of the same percentage as the Carpenters in their
master agreement: (3) all health, welfare, and pension con-
tributions paid by the Respondent; (4) 12 sick days per
year: (5) 2 weeks vacation after I year of service: (6) double
time for all overtime performed: and (7) a minimum of 4
hours reporting pay equal to 8 hours of straight time for all
work performed outside of the normal work period. Part-
time employees also enjoy vacation and sick-leave benefits.
The employees wanted these terms and conditions re-
duced to writing because of ambiguity and uncertainty as
to their application.
Judy Treichel was discussing a statement made by Harry
Kaiser, the financial secretary and a member of Respon-
dent's Executive Board. Kaiser told Treichel that the atmo-
sphere and the conditions which they enjoyed would not be
the same with a union agreement. Further discussion took
place between Treichel and Mike Otero, an assistant busi-
ness agent, vice president and a member of the executive
board of Respondent. Otero stated that C'huck Connely, an
admitted agent. would handle the negotiations and that the
employees were getting in over their heads in negotiations
because that's what Respondent did best. Furthermore.
Otero expressed the opinion that Local 445 was not going
to come away with anything, that it was going to be rough,
and that they were going to learn the hard wa.
Respondent opened the second session of' bargaining by
counterproposing a low wage rate for starting clericals of
$5.15 per hour, accumulation of sick leave to be set at 8
hours a year ( 16 hours less than beliore negotiations), cleri-
cals' responsibility for any increases in pension and health
and welfare contributions, and furthermore, that clerical
employees with I to 5 years of service be given 5 days of
paid vacation with an additional 5 days granted at the next
two 5-year intervals. The clerical employees were repre-
sented in their bargaining by employees Treichel. June
Driscoll, Karen McElrath Bernardine Montoya, as well as
Patricia Watson and Hazel Galwaich, officers of the Union.
all of whom represented Local 445. Connely testified that
he specifically stated at the beginning of each session that
each tentative agreement was subject to approval by the
executive board and ratification by the membership of Re-
spondent. There is a difference in opinion as to whether or
not during the early sessions with the Carpenters Union
that an)' comments were made to indicate that Connely
explained that any tentative agreement would have to be
approved by the executive board: in this connection it
should be noted that Treichel admitted that Connely made
references from time to time that "the Executive Board
would buy this or the Executive Board won't buy this."
Driscoll, too. remembers these references, although not un-
til the second or third meeting which she attended. Accord-
ing to the clerical employees, Connely was evasive about
exactly what authority the executive hoard had given him.
He did say that after the bargaining process was complete,
and he and Local 445 had worked something out, he was to
bring it to the Executive Board as a "package." Afterwards,
the executive board could possibly make a proposal to the
girls.
The fourth bargaining session took place on June 20 with
the entire clerical staff, Watson, and Groulx. Connely
opened the meeting by presenting the executive board's
written counterproposals, which were less than Respon-
dent's original counteroffer and less than the existing bene-
fits. Respondent proposed beginning wage rates that were
substantially less than previously offered; reduced the over-
time from 4 to 2 hours: cut vacation time to 5 days for the
first year and 10 days thereafter: eliminated language deal-
ing with paid leave of absence and funeral leave: reduced
sick days from 12 to 10. and demanded that increases in
health and welfare and pension costs be paid by the em-
ployees. After each of the aforementioned changes were an-
nounced by Connely Groulx asked for an explanation. In
X288
UNITED BROTHD. OF CARPENTERS & JOINERS. I.OCAL 1780
reply, Connely merely stated. "That's what the executive
board wanted." The reaction of the clerical employees to
these reduced offers was that Respondent was leaving
Groulx no other choice except to seek strike sanction from
her clerical employees and to file unfair labor practice
charges. Connely added that this was the final offer and
they could "take it or leave it." Connely did not deny mak-
ing this statement. McElrath recalled that Connely said
there would not be any more negotiations if this offer by the
Carpenters was rejected.
Montoya recalls that Otero stated that Local 445 should
have accepted the June 20 proposal and that they should
take what they could get "because the proposals will only
get worse ... if you think this one was bad you should see
the rest."
Montoya also confirmed Treichel's conversations with
Kaiser. Thus, she recalls Kaiser stating, on at least three
occasions, that the employees would always have better
conditions without a contract. Montoya also recalls Otero
stating that McElrath was one of the main reasons why
they were having a difficult time getting a contract, and
that, after she was let go, things might improve.
Finally, Montoya recalls Laub stating that the employees
should get their money if they went out on strike because if
they did go out on strike, they would not be coming back.
The president of the Central Labor Council. Mike Chad-
bourn, said that at one point during the meeting Watson
had told him that negotiations were "hung up" over eco-
nomic issues. Later, in reference to the strike, Chadbourn
admitted that Watson had told him that Local 445 had
negotiated in good faith for some period of time and felt
they could not drag the situation out any further.
At the first meeting to discuss whether or not a strike
would take place, the employees discussed several reasons
for striking. One. clearly, was the proposal of June 20.
which they did not consider to be a "serious proposal."
The clerical employees decided to go on strike on July I.
and this date was chosen because Respondent would then
be engaged simultaneously in other negotiations; the first
10 days of the month are the most busy, and thus the strike
would have maximum impact.
Towards the beginning of the strike. Connely visited
McElrath at her home. During the conversation that then
ensued, which lasted approximately an hour. Connely made
repeated references to the pending strike.
Connely told her that he did not want to see her lose her
job. He asked her to cross the picket line and to solicit the
other employees to do the same. He thought that if McEI-
rath crossed, the others would follow. Connely then warned
that "if the employees did not cross the picket line, they
would be walking out forever ... that he would teach them
a lesson ... but they would not come back to their jobs...
and that they would not get their jobs back in any way,
shape or form." A comparison of the proposals of June 20
and July 7 and the meeting of June 20 demonstrates the
meagerness of Respondent's concessions. In return for an
immediate boost in pay of 30 cents to $7.40 per hour for
clericals with a least a year's service and a promise that
part-time employees would receive the same benefits as full-
time employees, Local 445 agreed to terms and conditions
of employment more onerous than before negotiations be-
gan: i.e.. less sick leave, less reporting pay. less for ov ertime.
increases and health and welfare, pension to be borne by
the employees. and an agreement that the effective da of
the contract would be July 20. Groulx testified that "thes
were present on July 20 . . . because they were going to
capitulate . . . we had been beaten . . . the object of the
session was to cut a deal . . . and get the women back to
work." In addition, Local 445 received a 5-cent raise for the
clericals in exchange for withdrawing a pending 8(a)(5) un-
fair labor practice charge, which they did. Shortl\ there-
after, the clericals collectively agreed that they could return
to work the following Monday. July 25. When Grouls and/
or Laird asked Connely if this arrangement was acceptable.
Connely replied, "That's fine. I don't see any problem. I'll
have to check with Harry [Kaiser] and see what the situ-
ation is."
It appears that agreement about the re-employ ment of
the clerical employees had been reached. The record shows
that Driscoll said to ConnelN. "See you Mondas." Connel 3
replied. "See you then." In addition attention is called to
the fact that no mention was made by Connely that anyone
had been replaced and that an' decision had been made
prospectively to replace anyone.
Whatever agreements had been reached among Connely
and the clerical employees, the entire situation turned
around when (onnely sent a telegram to Treichel. )riscoll.
McElrath, and Local 445 for delivery on Jul) 22. he text
of the telegram. signed only by Connel., reads:
IN ORDER T1'O AL)OID ANY MISUNDERSIANDI)N(i RI:(i.ARD-
IN( AGREL.MENT VI llt OF()('F: IMPI.()OYES .O( Al 1780 is
NOT PREPARIID 1ro ltRM.INAII- I'IRRMANIN RI:PIA(I:-
MENIS FOR EI.VA J()ONI D)RIS('O(I Jl.')Y 1Rl ('III .. K -
RIN M('EI.RAIII.
Al PRESENI iIMit IRliER ARE NO POSIrIONS A \'Il ABI .
Ti It'tRITI EMPI.(OYIIS 'WIl1. BI PI.A('ti) ON A PREFEIR-
FNIIAL IIRIN( BASIS AND I.ill . B )IIERtI) IMPIOY-
MENI IIL:N A P()SIlION IS AAIIAB.I:.
After the misunderstandings concerning the union-securit
clause had been resolved, the terms were implemented after
ratification on August 18. Management rights language was
added at Connely's request and limited by a proviso request
by Treichel. Typographical errors were corrected, and lan-
guage clarifying vacation schedules was added. There is no
nexus between the reason for the employees going out on
strike and the subsequent refusal of the Carpenter's to rein-
state those employees who unconditionally applied for rein-
statement. The subject matter of the refusal to reinstate
comprises a separate and distinct violation of Section
8(a)(I) and (3). which will be dealt with iifra.
It does not appear that there is any evidence to show thati
the executive board approved either the language changes
or the management rights proviso at any time. Neither is
there any evidence of an explanation made bh Connel as
to why it was not required.
E. The Posilion of the Genral Coutnsel waith Revec! to the
Alleged 8()(5) [Vi ,tion
The General Counsel contends that RespondeLnl's ac-
tions, both at and away from the bargaining table. from the
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inception of the negotiations and continuing until at least
July 7, clearly demonstrated an intention not to reach a
collective-bargaining agreement in violation of Section
8(a)(5) and (1) of the Act. As is set forth in the General
Counsel's brief, this conclusion is predicated upon:
(I) Connely's failure to make clear any limitations
placed upon his authority; (2) The lack of any definitive
substantive instruction given by the Executive Board to
Connely until at least May 31; (3) the fact that Respondent.
through Connely, withdrew approval of articles to which he
previously had agreed; (4) Respondent's bargaining posture
which, at least until July 5, was to reduce its offer continu-
ally; (5) the plethora of admissions by agents of Respon-
dent, most of whom were members of the governing execu-
tive board, to the effect that they did not want a contract:
and (6) Connely's remarks on June 20.
The General Counsel calls attention to the decision of
Tomco Communications, Inc.. 220 NLRB 636 (1975), in
which the Board held that an employer violated Section
8(a)(5) of the Act when it proposed benefits that were less
than the existing provisions. For example, the Employer
had reduced sick leave from 12 to 6 days, had reduced the
eligibility years for vacations, had terminated its past prac-
tice of awarding sick pay to the first day of sickness, and
had changed the bonus system for perfect attendance. In
Tomco, the Board declared:
Rigid adherence to proposals which are predictably
unacceptable to the union may indicate a predetermi-
nation not to reach agreement, or a desire to produce a
stalemate, in order to frustrate bargaining and under-
mine the statutory representative . . . but at the same
time, the totality of Respondent's proposals, particu-
larly 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."
The General Counsel goes on to point out that Respon-
dent proposed substantial reductions in existing employee
benefits at the June 20 and July 5 bargaining sessions. Re-
spondent's proposal reduced sick leave from 12 to 10 days:
reduced vacation leave after I year from 10 days to 5 days:
required employees to pay for premium increases in pen-
sion and health benefits. although Respondent previously
had paid for these increments; excluded regular part-time
employees from receiving proportionate fringe benefits; re-
duced guaranteed work hours on scheduled days off from 4
to 2; reduced guaranteed work hours if scheduled to work
on meeting nights from 4 to 2: and eliminated prior propos-
als with regard to paid leave of absence and funeral leave.
At the fifth bargaining session, Respondent additionally
proposed that overtime pay be changed from double time
to time-and-a-half, cut down the pay scale, and introduced
a broad management-rights clause.
Quoting further from the brief of the General Counsel, in
The General Athletic Products Company. 227 NLRB 1565.
1574 (1977), the Administrative Law Judge stated, in a de-
cision adopted by the Board:
26 Tomco Communications Inc. supra at 636.
A finding of overall subjective bad faith normally
does not turn on a showing that specific acts or omis-
sions on the part of a respondent amount per se to
violations of Section 8(a)(5) of the Act. Instead. var-
ious acts and omissions pointing in the direction of bad
faith are relied upon as evidence to demonstrate a ba-
sic disposition on the part of an employer to avoid its
obligation to bargain with the aim of reaching an
agreement. One such element is the reneging on con-
tract proposals, which are first offered or agreed on
and retracted. In enforcing a bargaining order of the
Board, the Fifth Circuit said on this point:
It is well established that withdrawal by the em-
ployer of contract proposals tentatilcl I Emphasis
supplied] agreed to by both the employer and the
union in earlier bargaining sessions without good
cause is evidence of' lack o good faith, regardless of
whether the proposals constituted valid ofrlrs subject to
acceptance under traditional contract law. [Emphasis
supplied.j N.L.R.B. v. A oerican Seating Cotmpany of
Mississippi, 424 F.2d 106 (C.A. 5. 1970).
Here, as noted, Connely withdrew from previously
agreed-upon articles without giving any reason other than
"that's what the Executive Board wanted." Nowhere did
Connely say why that was the Executive Board wanted.
Again, therefore, this is evidence of bad faith since Respon-
dent proferred no "good cause" for its withdrawal.
At the June 20 negotiating session, after the executive
board's proposals were presented, Connely told the group
that that was the final offer, and that there would be no
more offers. It is undisputed that he told them to "take it or
leave it." Adopting a take-it-or-leave-it position constitutes
evidence of bad faith. N.L.R.B. v. Insurance Agents' Inter-
national Union, AFL CIO Prudential Ins. Co.], 361 U.S.
477. 484, 485 (1960): Federal Mogul Corporation, 212
NLRB 950 (1974).
Analysis and Concluding Findings Concerning Refusal-to-
Bargain Allegations
The complaint in allegation 11 states that on or about
June 20, and at all times thereafter, Respondent did refuse
and continues to refuse to bargain collectively with the
Union as the exclusive collective-bargaining representative
of all the employees of the unit described above. in that:
A. Respondent engaged in collective bargaining with the
Union with no intention of reaching in agreement.
B. On or about June 20 and July 5, 1977. Respondent
offered counter collective-bargaining proposals which in-
cluded terms of employment significantly less than those
existing prior to the commencement of negotiations.
C. On or about June 20 and July 5, 1977. Respondent
reneged and/or changed its position on contract terms to
which they had previously agreed.
With respect to each of the subsections of allegation I I.
the short answer is that these paragraphs must all be dis-
missed in that the Carpenters Union did ultimately bargain
with the Clerks and reached agreement on a contract which
was executed in January 1978. Whatever occurred in the
course of the bargaining, which constituted what appeared
290
UNITED BROTHD. OF CARPENTERS & JOINERS. LOCAL 1780
to be evidence of a determination on the part of the Car-
penters not to bargain in good faith, has been negated by
the ultimate fact that the parties did reach final agreement
on contract. Much of what transpired between the parties
may be characterized as "hard bargaining" and carries with
it no onus which requires a remedial order. Apart from the
possibility that during the course of the life of the contract
there may be some issues which require further bargaining,
there would seem to be no basis for the issuance of a re-
fusal-to-bargain order. Such an order, when viewed against
the fact that the parties did ultimately reach agreement on
the contract, would appear to be an exercise in futility.
The Problem of Reinstatement of Strikers Under the
Facts in the Case in Question
Allegation 14 in the complaint states that the strike,
which began on July 1, was: (I) caused and provoked by
the unfair labor practices of Respondent: and (2) was pro-
longed by the unfair labor practices of Respondent. It is
clear from the record that the employees went on strike on
July I because they had been unsuccessful in securing terms
of employment that satisfied them, and thus the strike was
caused by economic matters. By the same token, it was not
prolonged by the commission of unfair labor practices since
the unfair labor practices had nothing whatever to do with
the going out on strike of the employees.
It is, however, true that employees Bernardine Montoya,
Judy Treichel, Elva Driscoll, and Karen McElrath, after
having been verbally assured on July 20 that they would be
reinstated on July 25, 1977, and after making an uncondi-
tional offer to return to the former positions of employ-
ment, have been denied reinstatement, and by this denial
Respondent has violated Section 8(a)(3) and (1) of the Act.
At the outset, it must be noted that the above-named
employees were warned specifically by Connely that if they
went out on strike "they would walk forever." The threat to
terminate the employees for exercising their right to strike.
which is guaranted by the Act, is in and of itself. a clear
violation of Section 8(aX)(1) of the Act. That such a threat
was made is also clear from the record, and I so find. Not
only did Connely threaten that if the employees went out
on strike they would lose their jobs, but this threat was
reinforced by the remarks of Montoy and Laub. While
Laub is not a member of the Executive Board, he made
clear threats in the presence of Montoya, who is a member
of the Executive Board, and who by his acquiescence and
threats made by Laub, acquiesced in binding the Carpen-
ters Union. that the employees would lose their jobs if they
went out on strike.
Since the strike was an economic one, the strikers are
entitled under the Act only to reinstatement when vacan-
cies appear. At the very least, they must be put on a prefer-
ential hiring list and reemployed whenever there is a va-
cancy in the unit of which they are a member. Their rights
in this regard are clearly established by the Board's decision
in the Laidlaw case.
The General Counsel states in his brief that "Respon-
dent's refusal to bargain in good faith was the only cause of
the strike." From this bold assertion it is concluded that the
strike was, at its inception and at all times thereafter, an
unfair labor practice strike.
I have found supra that the strike was an economic strike.
The bargaining, while hard, ultimately led to the parties
signing a contract.
The four clericals took a strike vote because they did not
find that the proposals given by the Carpenters l.ocal were
acceptable. The strike therefore was an economic strike and
not an unfair labor practice strike.
However, Respondent did engage in clear violations of
the Act when it cautioned the employees not to strike and
accompanied this suggested restraint with a direct threat
that anyone who went out on strike would be discharged
and would not be re-employed.
Employee McElrath was visited at her home by Connely.
He said that if we did not cross the picket line "we would be
walking forever and that he'd teach us a lesson. and we
would not be coming back for our jobs.... If we continued
on strike that we would be out there forever walking."
McElrath overheard Otero talking to Laub. Hie said that
if the girls were out on strike that "we would be sTalking
forever."
June Driscoll testified that board member Otero said. "if
you go out on strike you won't be coming back." Also
Otero and Laub were talking to the girls and either he or
Otero said. "we should be sure to collect all of our pay . . .
before we went on strike because we wouldn't be coming
back."
After an exchange of proposals and the making of con-
cessions by both sides at the meeting of July 20, the clerical
employees expressed a willingness to return to work on
Monday, July 24. However, all four clerical employees re-
ceived telegrams on July 22 from Connelv which were iden-
tical in language and stated:
IN ORDER TO AVOID ANY MISUNDERSTAND)ING REGARD-
ING AGREEMENT '11H OFFICE EMPILOYEES I.OCAI. 1780 Is
NO] PREPAREI) o ERMINATE PREMANEN I RI'IA('I-
MENTS FOR EIVA ONE DRIS('OI.I.. JUDY rRE('Il!I.. K-
REN M(1Ei1RAIIl.
AT PRESENT TIME rHERI ARE NO POSIIIONS AVAIIABI.I.
THIE THREE EMPLOYEES WIlL BE PL.ACED ON A PREFIREN-
TIAI HIRING BASIS AND WItI. RE OFFEREID EMP)OYMIENI
W/HEN A POSITION IS A\VAILABI.F.
The General Counsel draws the reasonable inference that
when Connely told the employees theN could report back to
work on a Monday, the replacement employees were
merely temporary and therefore the permanent jobs had
not been filled.
The threats made by Connely, Otero, and Laub that em-
ployees who were not on strike would never be re-employed
are clear violations of the Act. Furthermore. this fact is
underscored by Connely's refusal to restore the employees
to their jobs. The right to strike is not only specifically pro-
tected in the Act, but it is well established by adjudicated
cases that go back to the earliest days of the National Labor
Relations Act wherein employees who go on strike remain
employees unless their jobs have been filled permanently bh
replacements.
Originally. there were four clerical employees who went
out on strike. However. Montoya was recalled as a dis-
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
patcher and began working again on July 25. Furthermore,
the Carpenters' brief indicates that an opening occurred in
August 1977. Cheryl Bitto told Connely she was going to
quit and the Carpenters sent a telegram to McElrath advis-
ing her that there was an opening and that she should re-
port to work on September 6 if she wanted to return to
work for the Carpenters Union. McElrath called Connely
and said she had a better job and she was satisfied and not
interested in working at the Carpenters Union. Connely tes-
tified that he then planned to call one of the other two
strikers to return to work, but before he made such a call he
was told by Bitto that she had changed her mind and had
decided to stay.
It is not possible to ascertain from the record before me
precisely what reinstatement rights had been denied and
how much backpay is due to the striking employees. How-
ever, this matter can be determined when the case reaches
its compliance stage.
Concluding Findings and Analysis
After an exhaustive review of the facts of the instant case
and a study of the adjudicated cases, I conclude that the
Carpenters did, in fact, engage in hard bargaining, but were
not guilty of a refusal to bargain because Respondent did
ultimately reach agreement with the Clerical Union and
executed a contract. I therefore recommend that those alle-
gations in the complaint which allege that Respondent re-
fused to bargain be dismissed.
With respect to the discharge of the strikers, I further find
that Respondent did violate Section 8(a)(l) and (3) of the
Act. It is not disputed that Treichel, Driscoll, and McElrath
made an unqualified offer to return to work and indeed
thought they had been reemployed as of July 25. Further-
more, there is not testimony from any witnesses, including
Kaiser, the financial secretary, which demonstrates any eco-
nomic reasons why the strikers were not called back after
July 20.
Montoya did return to work on July 25, but the other
three employees were denied reinstatement to their prior
jobs. In any event, all four employees are entitled to back-
pay for the period from the date of their offer to return to
work until they were re-employed. The record is not clear
as to when the last three employees were re-employed, but
this matter can be disposed of when the case reaches the
compliance stage.
CONCLUSIONS OF LAW
1. United Brotherhood of Carpenters and Joiners of
America, AFL-CIO, Local Union No. 1780, is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Office and Professional Employees Union, Local No.
445, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. The Union has been the exclusive representative for
the purposes of collective bargaining of the employees in
the following unit:
All full-time and regular part-time office clerical em-
ployees of Respondent, but excluding all other employ-
ees, including business representatives, guards, and su-
pervisors as defined in the Act.
4. By discharging employees Judy Treichel, June Dris-
coil, Karen McElrath, and Bernardine Montoya, Respon-
dent has engaged in and is engaging in unfair labor prac-
tices within the meaning of Section 8(a)(3) and (1) of the
Act.
THE REMEDY
Having found Respondent violated Section 8(a)(3) and
(I) of the Act, I shall recommend that it cease and desist
therefrom and take certain affirmative action to effectuate
the policies of the Act. The Remedy should be fashioned
with a view to restoring the situation, as nearly as possible,
to that which would have prevailed minus the unfair labor
practices. I also shall order that Respondent make the unit
employees whole for any financial loss they may have suf-
fered by reason of the unfair labor practices engaged
against them. I shall therefore recommend that Respon-
dent, if it has not already done so, offer each of them imme-
diate and full reinstatement to their former jobs, or, if those
jobs are no longer in existence, to substantially equivalent
positions, without prejudice to their seniority and other
rights and privileges and to make them whole for any loss
of pay or other employment benefits they may have suf-
fered as a result of their discharges. Backpay shall be com-
puted on a quarterly basis in accordance with F W. Wool-
worth Company, 90 NLRB 289 (1950), with interest as
prescribed in Florida Steel Corporation, 231 NLRB 651
(1977). See, generally, Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
[Recommended Order omitted from publication.]
292