Brady-Stannard Motor Co., Inc.

National Labor Relations Board - Board Decisions

Jan 15, 1985

273 N.L.R.B. 1434 (N.L.R.B. 1985)

1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brady-Stannard Motor Co., Inc. and Local 259,
United Automobile, Aerospace and Agricultural
Implement Workers of America. Case 2-CA-
19219
15 January 1985
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 7 November 1983 Administrative Law Judge
Arline Pacht issued the attached decision. The Re-
spondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of
the decision.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions only to the extent consistent with this
Decision and Order.
The judge found that the Respondent, after bar-
gaining to impasse with the Union, violated Section
8(a)(5) when it paid its striker replacements a
higher hourly wage rate than that offered to the
Union during negotiations. The judge noted that
after impasse is reached an employer is free to
change existing terms and conditions of employ-
ment if those changes are "reasonably comprehend-
ed" within its final offer. The judge found that the
change in hourly wage rates here was inconsistent
with the Respondent's final offer to the Union and
thus was an unlawful unilateral change. The judge
further found this conduct to have been inherently
destructive of employee rights and thus also viola-
tive of Section 8(a)(3). The judge also found that
by these acts the Respondent prolonged the strike
and thereby converted it into an unfair labor prac-
tice strike. Consequently, the judge concluded that
the Respondent also violated Section 8(a)(1) and
(3) by failing to promptly reinstate unfair labor
practice strikers on their unconditional offer to
return to work.
We disagree. Contrary to the judge, we find that
the actual wages paid to the striker replacements
were consistent with those offered the Union in the
Respondent's final proposal. Consequently, we find
that the Respondent did not unilaterally change the
terms and conditions of employment in violation of
Section 8(a)(5). Consistent with this finding we also
reverse the judge's further findings of 8(a)(1) and
(3) violations set forth above, all of which were
premised on the unlawful unilateral change.
The facts are as follows. The parties reached im-
passe on 27 July 1982 after six bargaining sessions
had taken place. At the 27 July meeting the Re-
spondent offered an hourly wage rate of $9.38 with
the number of hours worked to be computed from
what is known in the trade as the Factory Book.'
Alternatively, the Respondent offered to continue
the expired contract for 1 year. The contract guar-
anteed a minimum weekly wage of $310. It further
provided for $8.85 per hour, with the number of
hours worked to be computed from the Chilton
Book. No agreement was reached and a strike
ensued.
In August the Respondent hired permanent re-
placements for the strikers. In determining a wage
formula, the Respondent reviewed its competitive
position. In order to improve its efficiency, it de-
cided to use the more economical Factory Book as
it had proposed, and so to set an hourly rate of
$9.75 per hour with a 35-hour-minimum weekly
guarantee total of $341.25. Because the hourly rate
and, more importantly, the guaranteed minimum
were higher than that paid the strikers, the judge
concluded that the Respondent had violated Sec-
tion 8(a)(5) by paying the replacements that wage.
The Respondent, however, excepts to this conclu-
sion, arguing, as it did before the judge, that a vio-
lation should not be predicated on the formula used
for determining wages, rather, the Board should
examine actual earnings over the 6-month period to
determine if the Respondent's implemented wage
package was reasonably comprehended within its
alternative proposals to the Union. We find the Re-
spondent's exception persuasive, particularly
where, as here, earnings can vary significantly
based on the numbers of tasks performed, and the
numbers of hours alloted to a task for purposes of
calculating wages. Thus, contrary to the judge, we
would not focus on the minimum guarantee, when
we can examine actual earnings over a significant
period of time.
Using this analysis the record shows that the
actual wages received by the replacements over a
6-month period in 1983 were generally the same or
less than the strikers had earned during a similar
period in 1982 under the terms of the expired con-
tract. Thus, while the replacements' hourly rate
was higher than that of the expired contract, their
actual earnings did not correspondingly increase
because the number of hours paid was no longer
calculated on the Chilton Book. Accordingly, the
actual wages paid to the replacements were not
higher than those offered to the Union but, rather,
were consistent with one of the Respondent's alter-
native final offers, i.e., its offer to continue the
' The Factory Book and the Chilton Book are industry manuals each
of which specifies time allotments for tasks performed Mechanics' wages
are based not on actual hours worked but on hours deemed to have been
worked as set forth in the respective manuals Generally, the Chilton
Book has more generous time allotments
273 NLRB No. 178
BRADY-STANNARD MOTOR CO. 1435
terms of the collective-bargaining agreement. 2 In
these circumstances, we find that the wages paid
the replacements were reasonably comprehended
within the Respondent's final proposal to the
Union and that the Respondent did not unilaterally
change the terms and conditions of employment in
violation of Section 8(a)(5).3
ORDER
The complaint is dismissed in its entirety.
MEMBER DENNIS, dissenting.
Contrary to my colleagues, I do not think that
the Respondent's final iiiroposals to the Union rea-
sonably comprehended the wage package the Re-
spondent unilaterally implemented for striker re-
placements.
The Respondent made two alternative offers to
the Union: (1) $9.38 per hour calculated on the
"Factory Book," with no minimum guarantee; and
(2) $8.85 per hour calculated on the "Chilton
Book," with a $310-per-week minimum guarantee
(continuation of existing contract). The Respondent
gave replacements $9.75 per hour calculated on the
"Factory Book," with a $341.25 minimum guaran-
tee. Thus, the "Factory Book" terms the Respond-
ent gave the replacements were incontestably
better than the "Factory Book" offer made to the
Union in both hourly rate ($9.75 versus $9.38) and
minimum guarantee ($341.25 versus nothing). In
my view, this comparison alone establishes a viola-
tion; the Respondent was not entitled unilaterally
to implement "Factory Book" terms more gener-
ous than the "Factory Book" offer it made to the
Union. My colleagues argue, however, that the uni-
laterally implemented "Factory Book" terms
proved to be no more advantageous to the replace-
ments, in actual earnings, than the "Chilton Book"
contractual terms had been to the strikers.
2 Thus, contrary to the Jtidge, it is not significant that the replace-
ments' minimum weekly guarantee; holiday, personal leave, and sick pay
were higher than the strikers' under the expired contract, because, even
including these higher earnings, the replacements still did not average
more than the strikers in terms of actual earnings Accordingly, the terms
Implemented for the replacements were consistent with those offered the
Union In contrast, our dissenting colleague concludes that the terms im-
plemented for the replacements "had significant advantages" over those
offered the Union In so doing, however, she Ignores evidence of the re-
placements' actual earnings which effectively disproves her contention
Instead, she relies on the implemented terms "on their face", however,
our colleague does concede that It is "unclear" whether the implemented
terms really are more advantageous than those offered the Union due to
the many variables present here Precisely because of these many varia-
bles, It is impossible to weigh the relative advantages of the implemented
terms vis-a-vis those offered the Union merely by appraising those terms
"on their face," and it is improper to conclude that one is better than the
other based on such a superficial analysis Thus, it is our dissenting col-
league, rather than we, who uses "the wrong measuring stick" We prefer
to rely on the clear facts which show that the replacements' actual wages
were not higher than those offered the Union
3 Richard O'Brien Plastering Go, 268 NLRB 676 (1984)
Assuming arguendo that the implemented "Fac-
tory Book" terms were lawful if they were no
more generous than the contractual "Chilton
Book" terms that the Respondent offered to contin-
ue, I nevertheless would find a violation. Here, be-
cause of the different time allotments in the two
books, it is difficult to compare the implemented
"Factory • Book" hourly rate with the "Chilton
Book" hourly rate. Minimum weekly guarantees
can be compared, however, because they are stated
ih dollar amounts. The implemented minimum
guarantee was $341.25, compared with $310 under
the "Chilton Book" offer. Thus, the implemented
minimum guarantee was better than either of the
Respondent's alternative offers. Moreover, as the
judge observed, the implemented terms yielded
higher holiday, personal day, and sick leave pay
rates than either of the Respondent's offers.
In looking to gross actual earnings over a 6-
month period, my colleagues use the wrong meas-
uring stick. The normal methodology in this type
of case is to compare the terms that were imple-
mented with the terms that were offered. The
Board must judge the terms on their face (as the
parties must do at the bargaining table), rather than
look with hindsight at actual, earnings experience.
. The Union here might have chosen to accept the
implemented "Factory Book" terms, as they ap-
peared better on their face than the offered alterna-
tives. Whether acceptance would have proven ad-
vantageous for the Union is unclear, because 'actual
earnings depend on numerous variables, such as in-
dividual skill and productivity and the amount and
type of work available to be performed. The strik-
ers might have earned more than their replace-
ments did, or they might not have. The critical
point, however, is that the Respondent never gave
the Union the opportunity to consider the imple-
mented "Factory Book" terms, which had signifi-
cant advantages over the terms the Respondent did
offer. The Respondent thereby violated Section
8(a)(5) and (3), as the judge found.
DECISION
STATEMENT OF THE CASE
ARLINE PACHT, Administrative Law Judge. This case
was heard in New York, New York, on August 1, 2, 3,
and 10, 1983, pursuant to a charge filed on November 3,
1982, and amended on April 25, 1983. The complaint and
notice of hearing, issued on June 31, 1983, and amended
on July 20, 1983, alleges that Brady-Stannard Motor Co.,
Inc. (the Respondent) violated Section 8(a)(1), (3), and
(5) of the National Labor Relations Act (the Act). Spe-
cifically the Respondent is alleged to have unilaterally
offered and paid an hourly wage rate and a weekly mini-
mum wage guarantee to replacement workers higher
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than that ever offered to Local 259, United Automobile,
Aerospace and Agricultural Implement Workers of
America (the Union) during contract negotiations. The
complaint also alleges that when the Respondent's strik-
ing service department employees learned of this their
economic strike was converted into an unfair labor prac-
tice strike. The complaint further alleges that the Re-
spondent violated Section 8(a)(1) and (3) of the Act by
failing to reinstate all of the striking employees after the
Union forwarded on their behalf an unconditional offer
to return. The Respondent denies the commission of any
unfair labor practice, and contends that the wages paid
to replacement workers were reasonably comprehended
within its final bargaining proposals.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Briefs,
which were filed on behalf of the General Counsel and
the Respondent, have been carefully considered together
with all the evidence in this case. On the entire record,
and from my observation of the demeanor of the wit-
nesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and at all times material herein has
been, a New York corporation with an office and place
of business in Brewster, New York, where it is engaged
in the retail sale, service, and repair of new and used
automobiles. Annually, in the course and conduct of its
business operations, the Respondent derives gross reve-
nues in excess of $500,000, sells and ships from its facility
products, goods, and materials valued in excess of
$50,000 directly to firms located outside the State of
New York, and purchases and receives at its facility
products, goods, and materials valued in excess of
$50,000 directly from firms located outside the State of
New York. Accordingly, the complaint alleges, the Re-
spondent admits, and I find that the Respondent is now,
and has been at all times material herein, an employer
engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
The Union is now, and has been at all times material
herein, a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A Background
Operating under franchise, the Respondent sells new
Cadillacs, Oldsmobiles, and Chevrolets, and services
both new and used vehicles at its Brewster, New York
facility. Its 32 employees are organized into four operat-
ing divisions: administration, sales, service, and parts.
Since July 1979, the Union has represented the 17 em-
ployees in the service and parts division in the following
unit:
All service shop employees, including service writ-
ers, mechanics, "A" parts persons, "B" parts per-
sons, drivers, polishers, foremen polishers, utility
persons, tow truck drivers, and dispatchers em-
ployed by the Respondent at its facility, excluding
office clerical employees, new and used car sales-
men, guards, watchmen, professional employees and
supervisors as defined in the Act.
The unit employees were covered by a collective-bar-
gaining agreement which was effective from July 16,
1979, to July 15, 1982 The agreement provided, among
other things, that as of July 1981 mechanics, also re-
ferred to as Class A technicians, would be paid an
hourly rate of $8.85 and guaranteed a 35-hour work-
week. In other words, mechanics were assured of a mini-
mum weekly wage of $310. Although the contract called
for a 40-hour workweek, mechanics' wages were not cal-
culated by simply multiplying their $8.85 hourly wage
rate by the literal number of clock hours worked.
Rather, wages were calculated on a flat-rate or produc-
tive-hour basis according to three different methods
First, for all work under warranty, the amount of time
allocated to perform a particular repair was itemized by
year and model of car in a trade manual referred to as
the Factory Book. The amount of time provided to com-
plete repairs which were not under warranty was speci-
fied in a separate reference work, the Chilton Book. As a
general rule, the Chilton Book provided more time for a
job than did the Factory Book For example, whereas
the Chilton Book prescribed 5.5 hours to overhaul a
transmission in a 1980 Chevrolet, only 3.5 hours were al-
lowed for the identical function in the Factory Book.
However, it is not invariably true that the Chilton Book
set more generous times than did the Factory Book. On
some operations the manuals varied only slightly if at all.
One witness with extensive experience in the trade sug-
gested that for 90 percent of the jobs the Chilton Book
allocated 30 percent more time for a given job than did
the Factory Book. It also appeared true, however, that
the Chilton Book differed more significantly from the
Factory Book when the jobs were complex than when
they were more simple.
To summarize then, the Chilton and Factory Books
are identical m that each establishes specific amounts of
time for the completion of given repairs in various types
of cars The books differ as to the length of time allocat-
ed for each repair. In addition, the Respondent estab-
lished a third method of calculating an employee's pro-
ductive time. It created a "menu" or list of common re-
pairs not under warranty, and established flat-rate times
which were generally less than the Chilton times for
those jobs in order to reduce the cost to the customer
A mechanic's weekly wage was calculated in the fol-
lowing manner: the employee entered a brief description
of each assigned job on a timecard and indicated wheth-
er the job was under warranty, customer-paid, or on the
menu. Management then determined the amount of time
allowed for each job by referring to the appropriate
manual or menu. The total productive hours accumulat-
ed during a 5-day week multiplied by the $8.85 hourly
rate determined the employee's weekly wage, but only if
the productive hours exceeded 35. If a mechanic's pro-
ductive time fell below 35 hours, he would receive a
BRADY-STANNARD MOTOR CO 1437
guaranteed minimum wage of $310 (35 multiplied by
$8.85).
In addition to wages being calculated on a flat-rate
basis as described above, the contract also provided for
certain wages to be earned on a straight-time basis. Thus,
each year 11 paid holidays, 6 sick leave days, 2 personal
days, school training days (typically 6 to 10 a year), be-
reavement, and call-in pay all were determined by mul-
tiplying 8 clock hours by the $8.85 hourly wage rate.
B. Collective-Bargaining Negotiations
During the 2-month period of time prior to the expira-
tion of the collective-bargaining agreement, the parties
conferred on six occasions in an effort to negotiate a new
contract. Economic issues were the central concerns Of
both the Respondent and the Union. The Company, like
others affected by the recession in the automobile indus-
try, wanted far-reaching concessions from the unionized
workers. Not unnaturally, the Union 'hoped to obtaiii in-
creased benefits and wages. Joe Lewis, the Union's busi-
ness agent and principal riegotiator, conceded without
hesitation that from the outset the Respondent's position
was that all work should be calculated in accordance
with the Factory Book, that the hourly wage rate shoald
not be raised, that the weekly guarantee should be abol-
ished, and that job classifications should be revised to
provide for Class B mechanics. However, the Union
sought an expansion of the guaranteed workweek from
35 to 40 hours and a 12-1/2-percent increase in wages
with continued reliance on the Chilton`Book. During the
next several bargaining sessions, both sides made certain
concessions. Although the record is somewhat obscure as
to the parties' positions vis-a-vis the hourly weekly
wage, it appears that at one of the meetings the Re-
spondent agreed to retain the 35-hour guarantee, but
failed to come to terms with the Union on an hourly
wage rate. At a subsequent meeting, the Respondent
agreed to retain the 35-hour guarantee, but attempted to
tie it to a productivity clause. Thereafter, the Respond-
ent agreed to a 5-percent increase in the $8.85 hourly
rate and the Union retreated from its- demand for a 12-
1/2-percent increase and a 25-percent increase for the
polisher and parts driver,- to a 10-1/2 percent increase
over 2 years.
On July 27, the Respondent raised its offer to a 6-per-
cent increase on the $8.85 hourly rate based on the Fac-
tory Book. The Union, in turn, trimmed its request to a
9-percent increase on the $8.85 rate with a retention , of
the Chilton Book. In a final effort to avert a strike, the
Respondent alternatively offered to continue operations
under the current contract for another year.
When the negotiating team presented the Respondent's
alternative proposals to the members of the bargaining
unit, they voted unanimously to reject them and to
strike. Thus, on July 27, when the strike vote was taken,
the parties had failed to agree on an hourly wage rate,
on the exclusive use of the Factory Book, on revised job
classifications, or on a weekly. guarantee. The following
day, the 17 service -department employees went out on
1 The call-in pay provision apparently guaranteed 8 hours', pay for an
employee who reported to work when, in fact, work was not available
strike; , picketers bearing placards began a vigil outside
the Respondent's premises. Although bargaining contin-
ued after the strike commenced, the parties were unable
to resolve their differences. In November, the Company
raised its offer from 6 to 7 percent over the $8.85 hourly
wage rate on the Factory Book. This proposal was unac-
ceptable to the Union, although it did acquiesce to the
establishment of a Class B mechanic position.
C. The Strike
In the latter part of August, as the strike persisted, the
Respondent placed advertisements in several local news-
papers for striker replacements. The Respondent's busi-
ness manager Robert Murphy instructed the company's
bookkeeper Robin Morgan to review the striking em-
ployees' wages during the preceding year as a means of
establishing an appropriate wage which could be offered
to the replacements. Pursuant to these instructions
Morgan prepared an analysis, introduced into evidence
as Respondent's Exhibit 1, from which she concluded
that the Class A technicians had earned an average
hourly of $9.93. 2 On the basis of her analysis, manage-
ment decided to offer replacement workers $9.75 an hour
on the Factory Book with a 35-hour guaranteed work-
week.
On September 10, a job applicant emerged from an
interview with the supervisor of the service department
and disclosed to Larry Devita, a striking , technician
walking the picket line, that he had been offered a
hourly rate of $9.75 and a 35-hour guaranteed work-
week. He agreed to allow DeVita to make copies of a
piece of paper given to him by the supervisor on which
these terms were written. DeVita left the picket line
briefly and then returned with copies of the paper which
he shared with his fellow strikers. By the account of sev-
eral other mechanics who were on the picket line that
day, the pickets became exceedingly angry on learning of
the Restiondent's offer. By the next day, all of the strik-
ing employees had knowledge of Brady-Stannard's
terms. It .became a source of constant comment on the
picket line with strikers expressing anger and bitterness
that the Respondent was' willing to offer better terms to
people "off the street" than to its own employees,, many
of whom had , more than 10 years' seniority. As DeVita
described it, the strikers were "fuming mad . . . . They
were cursing up and down, they couldn't believe that
after being there for so many years and their seniority
, • . they could offer these. guys more money."
2 Although I have no doubt that Morgan made a good-faith effort to
analyze the employees' weekly in order to derive an average
hourly rate, her study builds on several generalized assumptions which
make its conclusions imperfect and unreliable For example, the entire
analysis is, based on the assumption that each mechanic spent 27. percent
of his productive hours for a 6-month period on warranty work Yet, the
27-percent figure was calculated On records for only 1 month Moreover,
that percentage was used to estimate the percentage of' all employees'
productive time spent on customer-paid work, rather than obtaining this
figure from actual records for the months involved Morgan also accept-
ed as true the assumption that the amount of productive hours allocated
for all customer-paid labor was uniformly 30 Percent greater 'than fo'r
warranty work Any slight variation in these broad assumptions could
significantly alter Morgan's conclusion that the average hourly rate for
mechanics was $9 93
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day after this revelation, Ronald Miller, an-
other striking Class A mechanic and shop steward, con-
tacted Business Agent Lewis about the Company's $9.75
offer. Early the next week, Lewis met with the strikers
and promised to seek legal advice from the Union's
counsel as to how to proceed In the interim, according
to employees who testified at the hearing, the Respond-
ent's wage offer was a constant source of discussion and
hostile comment among the union members. Although
the strikers admittedly did not know whether the Re-
spondent would use the Factory or Chilton Book to cal-
culate the replacement workers' productive hours, they
believed that with a $9 75 hourly rate the replacements
would be earning more. However, they also voiced out-
rage that the Respondent offered a 35-hour guaranteed
workweek at the higher hourly rate to the replacements,
a concern which went beyond the question of which
manual would be used. Thus, Shop Steward Miller was
unable to predict whether mechanics would take home
greater wages at a $9.75 rate on the Factory Book than
an employee making $8.85 an hour on the Chilton Book
because of all the variables involved, but he was certain
that the weekly guarantee at $9.75 would result in a min-
imum weekly wage higher than anything offered to the
strikers. Another mechanic, George Caimi, also had no
doubt as to what the Respondent's offer entailed. He
noted that the union members "had never been offered
anywheres near that amount of money as an hourly
rate." He then related that he had taken a scrap of paper
and found that when he multiplied "9 75 times 35 comes
out to be a greater number than 8.85 times 35. It comes
out to more money." When Larry DeVita was asked
whether he calculated the difference between the hourly
rate offered to replacements and his own, he answered
without hesitation: "You bet I did . . $9 75 x 8 hours x
35 hours come out to about $31.60 more than I was
going to get even with a 6% increase." Miller also point-
ed out that the higher wage rate offered to replacement
increased the amount of pay earned for holidays, person-
al days, and school training days.
As promised, Lewis consulted with the Union's attor-
ney and on November 3, an unfair labor practice charge
was filed with the Board accusing the Respondent of
violating Section 8(a)(1), (3), and (5) of the Act by offer-
ing the higher hourly rate to the replacement workers
when it had not previously been proposed to the Union.
On November 10, Lewis again met with the strikers ex-
plaining the steps the Union had taken. New picket signs
appeared shortly thereafter accusing Brady-Stannard of
being unfair.
D The Strikers' Offer to Return
After picketing for almost 7 months and with the onset
of cold weather, the employees decided to offer to
return to work The Union telegraphed the Respondent
on February 15 on behalf of the strikers stating that they
were unconditionally prepared to return to work. In a
telegram dated February 17, the Company responded
that there were no current vacancies, but promised to
recall the men if any openings arose. Beginning on
March 2, the Respondent wrote to 8 of the 10 strikers
offering them reinstatement After conferring with one
another, the employees realized that offers had not been
extended to all of them Consequently, they all agreed to
reject the reinstatement offers and remain on strike. The
strike and the picketing at the Respondent's facility still
were in progress at the time of this proceeding.
E. Discussion
1. Positions of the parties
There is no allegation that the Respondent refused to
bargain in good faith or that the strike was not economic
in origin Rather, the complaint is narrowly drawn and
alleges only that the strike became an unfair labor prac-
tice strike when the Respondent unilaterally offered and
paid to replacement workers a greater hourly wage rate
and a guaranteed minimum workweek which exceeded
any offer made to the Union during collective-bargaining
negotiations in violation of Section 8(a)(1), (3), and (5) of
the Act. The complaint further alleges that the Respond-
ent's refusal to reinstate all of the strikers after they ten-
dered an unconditional offer to return also violated the
Act and further prolonged the strike
The Respondent's defense rests on its claim that the
post-impasse wages paid to replacement workers were
lower than those earned by Class A mechanics prior to
the strike. Since these wage payments were reasonably
comprehended by the Respondent's final bargaining pro-
posals, no unfair labor practice was committed and the
strike remained economic in nature. Therefore, the Re-
spondent maintains, it was under no obligation to offer
immediate reinstatement to all of the strikers pursuant to
their offer to return.
2 Respondent's unfair labor practices
It is well settled that an employer may institute
changes in existing terms and conditions of employment
after Impasse has been reached following good-faith ne-
gotiations, provided that the changes are "reasonably
comprehended" in its final proposal Taft Broadcasting
Co., 163 NLRB 475 (1967), enfd sub nom. Television &
Radio Artists v. NLRB, 395 F.2d 622 (D.0 Cir 1968)
Put another way, any revisions in the terms which the
employer puts into effect subsequent to impasse may not
be "substantially different from, or greater than, any
which the employer has proposed during its negotia-
tions." NLRB v. Crompton Highland Mills, 337 U S 217,
225 (1949)
The parties do not disagree that an impasse occurred
on July 27, 1982, after six bargaining sessions had taken
place. 3 Although each side demonstrated flexibility and
made concessions from its initial position, differences re-
mained on economic issues, including the amount of the
hourly wage rate, whether the Chilton Book would be
retained, whether mechanics' job classifications would be
expanded to include additional job categories, and
whether the guaranteed 35-hour workweek would be
maintained. Since good-faith bargaining did not bring
about a resolution of these key issues, since the parties
apparently understood that a rejection of the Respond-
ent's final alternative proposals would precipitate a
strike, and since neither party seemed committed to
BRADY-STANNARD MOTOR CO

1439
making additional concessions at the July 27 meeting, the
conclusion is warranted that an impasse existed at that
time. In addition, the employees' rejection of the Compa-
ny's final proposals provides compelling evidence that
they regarded negotiations at that time as deadlocked
The fact that bargaining resumed in August and contin-
ued on various dates in November and December is not
inconsistent with a finding of impasse, for throughout the
subsequent negotiations the parties drew no closer to-
gether on the issues which divided them on July 27.
The first critical question which must be resolved,
then, is whether the Respondent's post-Impasse offer and
payment to striker replacement mechanics were "reason-
ably comprehended" within its final alternative proposals
to the Union. For the reasons set forth below, I find that
the Respondent unilaterally offered and implemented
terms of employment for the replacements greater than
those offered during collective bargaining and that such
conduct violated Section 8(a)(1), (3), and (5) of the Act
The Respondent stipulated at the hearing that in early
September 1982 it offered and did, in fact, begin paying
three newly hired Class A mechanics an hourly rate of
$9.75 based on the Factory Elook, accompanied by a
guaranteed 35-hour weekly minimum wage. Moreover,
the Respondent stipulated that It never offered the same
terms to the Union throughout their negotiations, nor has
it notified and offered to bargain with the Union about
them. The Respondent further admitted that at no time
during negotiations did it propose hourly rates and
weekly guarantees to the Union which matched or ex-
ceeded those paid to the replacements
Without belaboring the point, it is obvious that $9.75 is
a greater hourly rate than $9 38 or $8.85, the final figures
offered to the Union. By the same token, it is clear that
the weekly guarantee of $341.25, the product derived by
multiplying 35 hours times $9.75, exceeds both the mini-
mum weekly wage guaranteed to the members of the
bargaining unit under their expired contract or the
$328 30 sum resulting from the Respondent's offer to In-
crease the hourly wage rate to 59.38 It also follows that
the $9 75 hourly rate led to other inequities when com-
paring the proposals to the bargaining unit employees to
the offer and payments to replacement workers. Thus,
the Respondent conceded that replacements would be el-
igible for holiday, sick leave, school training, and person-
al days at a wage rate calculated by multiplying a
straight time of 8 hours by the higher $9 75 hourly rate.
The Respondent relies on a document submitted into
evidence which compares the actual earnings of replace-
ment workers during the first two quarters of 1983 with
those of the strikers for the same time period in 1982, ar-
guing that this exhibit proves that the replacements'
earnings were less than those of the strikers.4
4 The following figures are taken from (3 C Exh 13
Strikers-1982
DeVita Sr $ 9,728 27
Miller 10,002 26
Palochick 10,362 83
DeVita Jr 19,985 83
Numerous flaws inhere in the Respondent's arguments,
the most serious of which stems from its reliance on the
replacements' actual wages. By comparing their 6
months earnings to those of the bargaining unit members,
the Respondent has apparently missed the essential thrust
of the complaint. The harm alleged in the complaint is
not directed to the maximum which might be earned
under one hourly rate or the other; rather, it focuses on
the minimum weekly wage guaranteed to replacements
which exceeded that proposed for bargaining unit em-
ployees.5
This is a matter which has significance independent of
whether or not the Chilton Book is eliminated. Thus, the
Union's business agent and chief negotiator testified
without controversion that the parties bargained about
the guaranteed weekly wage as a separate item and that
it continued to be a critical and unresolved issue
throughout the negotiations. The strikers, too, expressed
discontent not only about their perception that the re-
placements would earn greater wages, but also that the
new formula for a weekly guarantee assured them a
higher minimum wage rate than the Union was offered.
Given Brady-Stannard's business decline, the strikers'
concern as to a guaranteed weekly minimum wage was
hardly academic. Indeed, the record shows that the re-
placement workers relied heavily on their guarantee.
One of the newly hired mechanics drew on the minimum
wage 30 out of the 41 weeks he worked, another resort-
ed to the guarantee in 12 of 33 weeks, while a third drew
on the guarantee for 12 of his 44 workweeks. It stresses
the obvious to point out that, if the striking employees
were to have invoked their guarantee at the rate offered
to them by the Respondent during negotiations, they
would have taken home $31.50 less per week than that
paid to the replacements.
Even apart from the issue of the guaranteed weekly
wage, it is not at all certain that wages calculated wholly
on the Factory Book at $9.75 an hour would necessarily
result in a reduction of mechanics' earnings, as the Re-
spondent contends. There are, as one of the strikers sug-
gested, too many variables between the circumstances
which govern the wages earned by the bargaining unit
members and those by the replacement workers to deter-
mine with any degree of accuracy that the elimination of
the Chilton Book mandated a decrease in real earnings.
It is true, as the witnesses conceded, that the Chilton
Caimi 13,602 87
McCarley 11,304 40
Romano 13,578 92
Replacements—I 983
Hagley $10,665 20
Schmidt 9,367 59
O'Connor 9,862 62
5 It is this distinction which makes the Respondent's analysis of the
strikers' average hourly wage rate largely irrelevant to a determination of
the threshold issue in this case (See R Exh 1 ) Whatever the average
hourly wage rate based on actual earnings of the striking mechanics may
have been, It has little bearing on a comparison between the contractual
hourly wage rate and guaranteed workweek offered to union members
and the terms subsequently implemented for replacements
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manual was more generous in times allotted to certain re-
pairs and, therefore, generally more advantageous to the
mechanic. Nevertheless, in determining whether or not
the Chilton Book made a difference m calculating real
earnings, it is important to bear in mind that only a por-
tion, approximately 40 percent, of the mechanics' pro-
ductive hours were calculated on the basis of Chilton
timeframes. Moreover, for some of the repairs performed
by the mechanics, no distinctions or only insignificant
ones existed between the times allotted in either manual.
Consequently, it is impossible to accurately predict
whether calculating all productivity at a $9.75 hourly
rate on the basis of the Factory Book would, in fact,
produce a weekly wage less than that comprehended in
the Respondent's final proposal to the Union.
There are other variables which make a valid compari-
son problematic. For example, it may be appropriate to
make allowances for the fact that the replacements took
longer to perform their tasks out of an unfamiliarity with
a new workplace, to factor into the equation the continu-
ation impact of a general decline in the automobile indus-
try, or to acknowledge the loss of business occasioned by
the strike. In addition, the Respondent unilaterally re-
vised the menu after the strike commenced and also
eliminated a $10.45 special hourly rate previously paid to
mechanics for heavy-duty work on trucks. The Union
was not notified of either of these actions and they were
apparently never mentioned during collective bargaining.
Therefore, they should not be taken into account in de-
ciding the central issue in this case since it is impossible
to state what position the Union would have taken had it
been permitted to bargain over these matters.
Further, the record does not wholly support the Re-
spondent's contention that the formula established to de-
termine wages for the replacements necessarily produced
decreased earnings. General Counsel's Exhibit 1 shows
that one of the mechanics hired subsequent to the strike,
Brian Hagley, earned a higher average weekly wage
then did four of the bargaining unit technicians, while
another new employee, O'Connor, earned more than the
senior DeVita.
In sum, given all the variable circumstances which ex-
isted before the strike and afterwards, it requires a leap
of faith to conclude that the wage package offered and
given to replacement workers was less favorable overall
than that offered to the Union during negotiations There
is one matter, however, which remains beyond specula-
tion—that is, that the replacement mechanics were of-
fered a higher hourly rate and a guaranteed workweek
which had to produce income greater than that ever of-
fered to the Union. There can be no doubt that $9 75
times 35 hours assures a greater minimum wage than
does $8.85 multiplied by a 35-hour workweek, and that
$9.75 multiplied by 8 hours straight time is greater than
$8.85 per hour for holidays, personal days, or sick leave.
By offering and granting to replacement workers these
terms of employment, more desirable than any offered to
the strikers, the Respondent violated Section 8(a)(1) and
(5) of the Act. Moreover, the Board has held, in some-
what parallel circumstances, that such actions have a po-
tentially devastating impact on the right of employees to
strike for they are inherently destructive of employees'
rights. Therefore, Section 8(a)(3) of the Act is violated as
well Burlington Homes, 246 NLRB 1029, 1030 (1979);
NLRB v. Erie Resistor Corp., 373 U.S 221, 226 (1963).6
3. The strike's conversion into an unfair labor
practice strike
The next question to be considered is whether the Re-
spondent's unlawful conduct in offering and paying a
higher hourly wage rate together with a 35-hour weekly
guarantee to replacement workers converted an econom-
ic strike into an unfair labor practice strike.
The resolution of this question turns on proof that the
unfair conduct was causally connected to the continu-
ation or prolongation of the strike. Compare Whisper Soft
Mills, 267 NLRB 813 (1983), and Robbins Co., 233
NLRB 549 (1977), with Burlington Homes, supra at 1032,
and Winter Gardens Citrus Products v. NLRB, 238 F.2d
128 (5th Cir. 1956). Here, there is convincing evidence to
support the conclusion that the Respondent's unfair labor
practices described above contributed in substantial
measure to alienating the strikers and thereby prolonging
the strike.
There is no dispute that striking employees learned of
the Respondent's wage offer to a replacement mechanic
on September 10 What the Respondent controverts is
the contention that their knowledge contributed to a pro-
longation of the strike. In this regard, it could be argued
that the strikers' testimony as to their hostile receipt of
this information was self-serving. 7 But it is not possible
easily to disregard the strong evidence of the workers'
anger and their perception of their employer's conduct as
unfair. Thus, the record shows that the union members
took certain unambiguous actions. First, DeVita, swiftly
reacting to what he perceived as an unjust offer, per-
suaded the applicant to accompany him while he made
copies of the paper containing the damaging terms. Im-
mediately thereafter, he shared the information with his
fellow picketers. By the following day all the strikers
were aware of the Respondent's action. On September
11, the shop steward sought the union business agent's
advice as to how to proceed on this issue. Thereafter,
the business agent met with the strikers and assured them
that he would pursue the matter. He did so and within a
reasonable time period the Union filed an unfair labor
practice charge devoted exclusively to its protest of the
Respondent's wage offer. Finally, the picket signs were
changed to reflect the fact that the focus of the strike
was to protest an unfair labor practice. There is no pre-
cise way to measure the degree to which the Respond-
ent's unfair labor practices determined the employees'
decision to see the strike to the finish, for motivation is
6 The Respondent contends that it chose the $9 75 hourly rate solely to
attract applicants with a fair wage offer However, specific evidence of
discriminatory motivation is unnecessary since the Respondent's conduct
"by its very nature contain[s] the implications of the required intent
NLRB v Erie Resistor Corp, supra at 227 See also Radio Officers v
NLRB, 347 U S 17 (1954)
7 With some limited exceptions, the collective-bargaining agreement
requires that a full investigation be made prior to a discharge Other arbi-
trators, who have heard cases involving the Company, have held that the
"full investigation" requirement may be met without the need to inter-
view the employee affected
BRADY-STANNARD MOTOR CO. 1441
not a matter which can be quantified with certainty, es-
pecially when the events which affected or changed
their motivation occurred while the employees were on
strike. It is unnecessary to divine subjective intent, how-
ever, for there is visible objective evidence here which
provides ample proof that "the strikers' resolve to con-
tinue the strike was strengthened by what they perceived
as another unfair labor practice committed by Respond-
ent." The fact that the strike continued without any
sign of weakening until February 15 when the strikers
unconditionally offered to return to work provides fur-
ther proof of the intensity of the strikers' resolve.
To be sure, the strike continued to have economic ob-
jectives throughout its duration. However, a strike, such
as the one at issue here, may be converted into an unfair
labor practice strike "if only one cause, even if not the
primary cause, was the employer's unfair labor practice,
notwithstanding the presence of economic issues." Supe-
rior National Bank, 246 NLRB 721, 724 (1979), quoting
National Fresh Fruit & Vegetable Co., 227 NLRB 2014
(1977), enf. denied on other grounds 565 F.2d 1331 (5th
Cir. 1978). There is compelling proof that the unit mem-
bers continued to strike against Brady-Stannard at least
in part because of the Respondent's unlawful conduct in
offering a higher hourly wage rate and a higher guaran-
teed weekly wage to striker replacements than was of-
fered to the Union during negotiations. I conclude, there-
fore, that the strike became an unfair labor practice strike
on September 10, 1982.
4. Respondent's obligation to reinstate strikers
When a strike which is economic at its inception is
converted into an unfair labor practice strike, the strikers
acquire the full reinstatement rights of unfair labor prac-
tice strikers on the date of conversion. See Carpenters
Local 1780, 244 NLRB 277, 281 (1979). Accordingly, an
employer is obligated to immediately reinstate any striker
who was not permanently replaced prior to the date of
conversion to his former or substantially equivalent posi-
tion of employment on his unconditional application to
return to work, even if striker replacements must be ter-
minated to make way for the returning employee. NLRB
v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938).
As found above, a strike, economic in nature, became an
unfair labor practice protest on September 10, and on
February 15 the employees requested reinstatement with-
out conditions. At this juncture, the Respondent was re-
quired to offer immediate reemployment to all bargaining
unit employees who had not been permanently replaced
prior to September 10.9
8 See Member Jenkins' dissent in Burlington Homes, supra at 1033. The
majority in that case disagreed with Member Jenkins' view that the strike
was converted into an unfair labor practice strike, since the strikers were
unaware of the employer's wage offer and, even after the General Coun-
sel learned of the employer's unlawful conduct dunng an investigation of
the original charge, no amended charge was ever filed alleging that the
wage offer to the replacements was unlawful. See Burlington Homes,
supra at 1032 fn. 11. These factors distinguish Burlington from the present
Case.
9 Striking employees who were permanently replaced prior to the Sep-
tember 10 conversion date are entitled to reinstatement to their former or
substantially similar jobs as they become available before those jobs are
offered to new employees. See Laidlaw Corp, 171 NLRB 1366 (1968),
Instead, on February 17 the Respondent declined to
reinstate any of its former employees claiming that there
were no vacancies. In its brief, the Respondent denies
that it had a legal obligation to offer reinstatement to all
unreplaced strikers since the strike remained an econom-
ic one at all times. Having found to the contrary that it
was converted to an unfair labor practice strike, the Re-
spondent was obliged to promptly accept the returning
workers even if it entailed dismissing replacements. The
Respondent's refusal to do so violates Section 8(a)(1) and
(3) of the Act and clearly prolonged the strike. See Tufts
Bros., 235 NLRB 808, 823 (1978).
Beyond this, the Respondent again violated the Act
when it subsequently offered to reinstate most but not all
of the strikers. Because of its failure to offer reemploy-
ment to the two service advisers, Strobino and Smith,
the other striking employees rejected the reinstatement
offers and chose to continue the strike. In these circum-
stances, the strikers were entitled to refuse to return to
work and by doing so did not forfeit their status or rein-
statement rights as unfair labor practice strikers. Condon-
ing similar conduct by striking employees in Southwestern
Pipe, 179 NLRB 364 (1969), modified 444 F.2d 340 (5th
Cir. 1971), the Board ruled:
[E]mployees do not lose their right to reinstatement
by engaging in a continued strike to protest their
employer's failure to offer reinstatement to other
strikers. They merely revert to their status as unfair
labor practice strikers until such time as the em-
ployer accedes to their demands or until they termi-
nate the strike. [Id. at 365.]
Thus, the mechanics' decision to remain on strike does
not alter their right to reinstatement. However, the Re-
spondent's subsequent offer of reemployment to some of
the strikers limits its duty to compensate them for lost
wages to a period from February 17 to the dates on
which job offers subsequently were extended. As to the
two service advisors to whom no reinstatement offers
were made, the Respondent is obligated to promptly
offer them their positions back and make them whole for
any loss of earnings incurred as a result of its continuing
refusal to reinstate them.
enfd. 414 F.2d 99, 103-105 (7th Cir. 1969), cert. denied 397 U.S. 920
(1970). Jt Exh. 1 attempts to detail the employment history of the re-
placement workers but I find that document somewhat confusing. An ex-
amination of this exhibit suggests that only Ronald Morgan was perma-
nently replaced by an employee hired prior to September 10. Should his
position become available by the departure of the replacement, he must
be recalled unless he has obtained regular and substantially equivalent
employment elsewhere. Another new employee, J. Astrologo, was hired
as a polisher on September 2 to replace David Churchill, but Astrologo
was terminated a month later. At that point in time, Churchill was enti-
tled to be recalled on offering unconditionally to return. Instead, the Re-
spondent hired another replacement, thordino, on June 30. Additionally,
the General Counsel submits that Lyke, a parts driver, was permanently
replaced. However, Jt. Exh 1 shows that Lyke was rehired and terminat-
ed again in August. I leave the unraveling of Lyke's ambiguous employ-
ment status, as well as other questions affecting which employees may
have been permanently replaced, to the compliance stage of this proceed-
ing.
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. At all times material herein, the Union has been the
exclusive collective-bargaining representative of employ-
ees in the following appropriate unit:
All service shop employees, including service writ-
ers, mechanics, "A" parts persons, "B" parts per-
sons, drivers, polishers, foremen polishers, utility
persons, tow truck drivers, and dispatchers em-
ployed by the Respondent at its facility, excluding
office clerical employees, new and used car sales-
men, guards, watchmen, professional employees and
supervisors as defined in the Act.
4. Since about September 1, 1982, the Respondent vio-
lated Section 8(a)(1), (3), and (5) of the Act by unilateral-
ly, without prior notice to and consultation or bargaining
with Local 259, United Automobile, Aerospace and Ag-
ricultural Implement Workers of America, offering to
pay and paying its replacement mechanics a greater
hourly wage rate and a higher weekly minimum wage
than was offered to the Union during contract negotia-
tions.
5. The strike which began on July 27, 1982, was pro-
longed by the Respondent's unfair labor practices as de-
scribed in paragraph 4 above, thereby converting the
striking employees into unfair labor practice strikers on
September 10, 1982.
6. Notwithstanding the Union's unconditional request
for reemployment on behalf of the strikers, the Respond-
ent denied them prompt reinstatement, thereby discrimi-
nating against Ronald Miller, Lawrence C. DeVita,
George Cairn', William McCauley, Edward Palocnick,
Vincent Romano, Timothy Jaczola, Lawrence J. DeVita,
George Smith, and Edward Strobino, in violation of Sec-
tion 8(a)(1) and (3) of the Act.
7 By failing at all times to offer reinstatement to two
of the strikers, Edward Strobino and George Smith, not-
withstanding their unconditional requests to return, the
Respondent prolonged the strike in violation of Section
8(a)(3) and (1) of the Act.
8. The above-described unfair labor practices affect
commerce withm the meaning of Section 2(6) and (7) of
the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
required to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act. As found above, the Respondent unilaterally
and without consultation with the Union granted an in-
crease in the hourly wage rate and a higher guaranteed
workweek to striker replacements without bargaining
with the Union as the exclusive representative of the em-
ployees in the appropriate unit and such conduct unlaw-
fully discriminated against the strikers. Accordingly, the
Respondent shall be ordered to cease and desist from en-
gaging further in such practices and, on request, the Re-
spondent shall revoke all unilateral changes in the terms
and conditions of employment in the aforesaid unit.
The Respondent also was found to have violated Sec-
tion 8(a)(3) and (1) of the Act by denying reinstatement
to the strikers after they unconditionally requested reem-
ployment to their former or substantially equivalent posi-
tions. Subsequently, the Respondent offered reinstate-
ment to eight of the strikers but failed to offer positions
to the two service advisers. Consequently, I shall recom-
mend that the Respondent be ordered to offer to the
strikers who were not permanently replaced prior to
September 10, 1982, immediate reinstatement to their
former or substantially equivalent positions, without prej-
udice to their seniority or other rights which they for-
merly enjoyed, discharging any replacements if neces-
sary. Further, I shall recommend that the Respondent be
required to make all strikers whole for any loss of earn-
ings they may have suffered as a result of the Respond-
ent's failure to reinstate them immediately on their ten-
dering unconditional offers to return to work. Such com-
pensation shall be computed from the date of the Re-
spondent's refusal to return them to work to the date
that offers of reinstatement may have been made in ac-
cordance with the formula set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231
NLRB 651 (1977). See generally Isis Plumbing Co., 138
NLRB 716 (1962). Payroll and other records in the Re-
spondent's possession shall be made available to the
Board or its agents to assist the backpay computation.
While the unfair labor practice findings herein are not
inconsequential, the record does not reflect any previous
history of similar findings against the Respondent nor
does it demonstrate union animus or bad faith in the ne-
gotiations Under these circumstances, I find It appropri-
ate to recommend the narrow injunctive language "in
any like or related manner." See Hickmott Foods, 242
NLRB 1357 (1979).
[Recommended Order omitted from publication ]