Hostar Marine Transport Systems, Inc.

National Labor Relations Board - Board Decisions

Apr 9, 1990

298 N.L.R.B. 188 (N.L.R.B. 1990)

188 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hostar Marine Transport Systems , Inc. and Shop-
men Iron Workers Local Union 501, a/w Inter-
national Association of Bridge, Structural and
Ornamental Iron Workers, AFL-CIO. Cases 1-
CA-25375 and 1-CA-25411
April 9, 1990
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On August 14, 1989, Administrative Law Judge
Robert A. Giannasi issued the attached decision.
The Respondent and the General Counsel filed ex-
ceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings , findings,I and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Hostar
Marine Transport Systems, Inc., Plympton, Massa-
chusetts, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
i The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F 2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
We agree with the judge that the employees' walkout on March 7,
1988, constituted protected concerted activity In so doing, we find it un-
necessary to rely on his additional fording that even if the walkout had
been unprotected, the Respondent nevertheless subsequently condoned its
employees' conduct.
John Welsh, Esq., for the General Counsel.
Richard B. Slosberg, Esq., of Portland, Maine, for the Re-
spondent.
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge.
This case was tried on November 14, 15, and 16, 1988, in
Boston, Massachusetts. The consolidated complaint al-
leges that the Respondent violated Section 8(a)(1) of the
Act by making two threats to employees and violated
Section 8(a)(3) and (1) of the Act by disciplining, sus-
pending, and discharging employees for engaging in two
short walkouts, one for 1-1/2 hours and the other for 1
day. The complaint also alleges that the Respondent
failed to bargain in good faith with the Charging Party
298 NLRB No. 20
Union (the Union) in violation of Section 8(a)(5) and (1)
of the Act. The Respondent filed an answer denying the
essential allegations of the complaint and the parties sub-
mitted briefs which I have read and considered.,,
Based on the entire record, including the testimony of
the witnesses and my observation of their demeanor, I
make the following
FINDINGS OF FACT
I. JURISDICTIONAL MATTERS
The Respondent, a corporation with an office and
place of business in Plympton, Massachusetts, is engaged
in the manufacture and sale of boat trailers and stands. In
the course and conduct of its operations, the Respondent
sells and ships from its Plympton facility products,
goods, and materials valued in excess of $50,000 directly
to points outside the Commonwealth of Massachusetts
and purchases and receives products, goods, and materi-
als valued in the excess of $50,000 directly from points
outside of the Commonwealth. Accordingly, I ford that
the Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
H. THE UNFAIR LABOR PRACTICE ALLEGATIONS
A. The Facts
1. Background
The Respondent was incorporated on March 14, 1986.
It began manufacturing operations on July 1, 1986. The
owners of the Respondent are Tom Armstrong, Dwight
Stimson, and Bill Houghton. Armstrong is most closely
involved in the manufacturing operation; Houghton is re-
sponsible for sales and marketing; and Stimson handles fi-
nance, administration, and production control.
The Respondent began its operations in Norwell, Mas-
sachusetts, out of a building owned by Co-owner Tom
Armstrong. The first two employees were Rick Rose-
bach and Frank Knudsen. In early August 1986, the Re-
spondent moved its operations to the present facility in
Plympton, Massachusetts.
2. The union campaign and early bargaining
On June 26, 1987, the Union sent a letter to the Re-
spondent advising it that a majority of its employees had
selected the Union to represent them and requesting rec-
ognition. After the Union filed an election petition, the
Board held a representation election which the Union
won. On September 30, 1987, the Union was certified as
the exclusive bargaining representative for the Respond-
ent's employees in the following unit:
All full-time and regular part time production em-
ployees employed by the Employer at its Plympton,
i The General Counsel filed a motion to correct transcript which was
unopposed I grant the motion.
HOSTAR MARINE TRANSPORT SYSTEMS 189
Massachusetts facility, but excluding all other em-
ployees, office clerical employees, professional em-
ployees, managerial employees and supervisors as
defined in the Act.
In an exchange of letters in October 1987, the Union
asked for and received from the Respondent certain in-
formation preparatory to bargaining negotiations.
On December 7, 1987, Union President David M.
Mortimer sent a letter to the Respondent enclosing a
copy of a "proposed new agreement to be negotiated
with your Company." The proposed agreement was a
preprinted form agreement with an orange cover which
was prepared by the Union's International. It contained,
inter alia, a provision stating that the International was
not a party to the agreement but it was required to ap-
prove the agreement "as to form." The agreement also
provided for union security and check off of union dues
as well as other standard clauses with some blanks filled
in with such items as the specific holidays requested and
the proposed classifications and rates of pay for unit em-
ployees. The agreement also provided for fringe benefit
payments to the Union's fringe benefit trust funds and for
pension payments to the International's pension fund.
The agreement was to have been effective retroactively
from September 11, 1987.
On December 21, 1987, the Union was sent a letter by
Richard B. Slosberg, the Respondent's attorney, notify-
ing the Union that he would be negotiating on behalf of
the Respondent and asking the Union to contact him to
arrange for an initial meeting.
The parties met for their first bargaining session on
January 11, 1988, at the Union's office in Braintree, Mas-
sachusetts. The Union was represented 'by International
Representative Robert Thomas, Union President Mor-
timer, and employee Frank Knudsen. At this meeting the
parties reviewed the Union's proposal.
Slosberg objected to the provision in the Union's pro-
posal that described the unit as encompassing mainte-
nance work because the Board's certification had re-
ferred only to production work. In fact the Respondent
employed no separate maintenance workers; the produc-
tion employees 'performed maintenance work. Thomas
said that this had been an oversight. Slosberg stated that
he would be guided by the certification.2
The Respondent also objected to the clause concern-
ing the International Union not being a party to the con-
tract. Slosberg questioned why, if the International did
not want to be a party, it wanted the 'right to approve
the agreement. The Union's response was that this was
"a policy." Slosberg had other objections to the union
proposals concerning union security, grievance-arbitra-
tion, and' limitations on the steward's ability to act on
behalf of the Union. At this meeting the Union also pro-
vided the Respondent with booklets describing the
2 Subsequently, on March 14, 1988, the Union filed a unit clarification
petition with the Board to include maintenance employees in the certified
unit On April 12, 1988, the Board's Regional Director wrote the Union a
letter stating that the unit clarification petition would be held in abeyance
because the Union had filed unfair labor practice charges that were being
investigated. The Respondent subsequently agreed to the Union's position
on unit clarification and the petition was withdrawn.
Union's fringe benefit and pension plans which were in-
corporated in its proposal.
The second negotiation session was held on January
27, 1988, again at the Union's office. The same people
represented the Union, but two of the Respondent's
owners, Dwight Stimson and William Houghton, joined
Slosberg for the Respondent.
The Respondent objected to the Union's proposal on
retroactivity, asking instead for a 1-year contract effec-
tive as of the date of employee ratification. It also object-
ed to union security, stating that this decision should be
left to the employees and to dues-checkoff, stating that it
did not want to assume this responsibility. The Respond-
ent also objected to the concept of seniority because it
wanted the flexibility to promote, lay off, and rehire em-
ployees without regard to seniority. The Respondent ac-
cepted the concept of a grievance procedure, but it ob-
jected to arbitration because it felt that arbitration was
unnecessary. The Respondent also objected to the
Union's proposals on subcontracting and job classifica-
tions because it wanted to retain the flexibility to move
employees around and to out source some of the work.
The Respondent indicated that it would submit pro-
posals of its own on management rights, no-strike, no-
lockout, leaves of absences, reporting pay, and health
and safety. It also agreed in principle to union proposals
on bulletin boards, safety shoes, savings clause, and visi-
tation rights. The Union indicated a willingness to accept
the Respondent's current health plan rather than its own
and asked for a copy of the existing health benefits book-
let.
The Respondent noted that there were no classifica-
tions at present. It proposed retention of the present
system of no-wage classification, but it suggested a wage
increase for the employees. Actually, the Respondent
proposed several broad classifications. But the Union in-
sisted on its own detailed wage classification system. The
Union also insisted on its seniority proposal.
At the end of this meeting, Thomas asked for more
frequent meetings and for a counterproposal from the
Respondent. Slosberg said he was preparing a counter-
proposal and said he would notify the Union as to his
availability for another meeting.
The third negotiation session was held on February 3,
1988, again at the Union's office. At this meeting the Re-
spondent submitted its counterproposal which the parties
reviewed.
The Respondent's proposal provided for a $1-per-hour
wage increase, provisions on reporting pay, holidays,
overtime pay, hours of employment, vacations, the exist-
ing health insurance paid for entirely by the Respondent,
leave of absences, grievance procedure, plant visitation,
bulletin boards, safety and health, and savings clause.
The Respondent's proposal also contained a broad
management-rights clause and a zipper clause providing
that the agreement contained the full agreement of the
parties. The Respondent also proposed a no-strike, no-
lockout clause.
On February 9, 1988, the Respondent sent a notice to
its employees setting forth the economic package it had
submitted to the Union.
190 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The parties met again on February 19, 1988. At this
meeting the Union withdrew some of its proposals in-
cluding the right of the International to approve the
agreement as to form. It also agreed to the Respondent's
reporting pay and leave-of-absence provisions as well as
the Respondent's proposed retention of the current
health insurance program. The Union also agreed to the
Respondent's proposals on health and safety and plant
visitation as well as its grievance proposal so long as it
included arbitration. The Union also tentatively agreed
to the Respondent's zipper clause.
The parties remained far apart on union-security and
dues-checkoff, job classifications, seniority, management-
rights, subcontracting, no-strike, and no-lockout issues.
The Respondent and the Union were also apart on the
Respondent's position that it be able unilaterally to set
hours and work schedules.
At the end of this meeting, the parties agreed to meet
again on February 25.
On February 24, Slosberg telephoned Thomas and told
Thomas that he was involved in a jury trial and would
be unavailable to meet the next day but that he would
try to get back to Thomas to arrange a meeting. Thomas
told Slosberg that he and Mortimer had a 2-week vaca-
tion scheduled beginning on February 27. The parties did
not reach each other again before Thomas left on his va-
cation.3
On March 1, 1988, Slosberg wrote a letter to Thomas
stating that he attempted to contact Thomas that day and
had left a message on Thomas' answering machine. Slos-
berg asked Thomas to call him "as soon as possible" to
arrange for further bargaining meetings.4
3. Respondent's work schedule prior to
March 7, 1988
In the early days of the Respondent's operations its
work schedule was quite flexible. The employees were
given keys to the plant and employee Knudsen often
opened and closed the facility. This flexibility has never
really changed according to the credible testimony of
employee witnesses. The employees worked whatever
hours they wished.
Stimson testified that, in March 1987, he and Arm-
strong informed employees that Respondent was going
to curtail operations to "roughly 40 hours a week." This
meant the employees were to work four 10-hour days,
Monday through Thursday. Employees were told that
there would be occasional overtime. Stimson further tes-
tified that, when business picked up in August 1987, he
told employees that Respondent was switching to five
10-hour days, Monday through Friday. According to
Stimson this schedule has been in effect since August
1987.
On cross-examination Stimson said that the established
schedule reflected the "hours that we expected [the em-
3 Apparently, Mortimer was also scheduled for a vacation at this time.
Thus, neither union negotiator was available for a period of about 2
weeks.
A At prior meetings the Respondent had promised to provide a copy of
its health insurance coverage certificate and an omitted portion of its
grievance proposal . By separate letters to the Union in late March the
Respondent provided this information.
ployees] to be at work unless they told us they weren't
going to be there." Stimson admitted that, if the employ-
ees notified-the Respondent that they were not going to
be present, they need not abide by the established hours.
According to Stimson, "[w]e expected them to work, but
we have never penalized or disciplined anyone for not
working" including not working on Friday. Stimson also
admitted that some employees punched out and left early
and did not work on Fridays or other days. Stimson tes-
tified that at least one employee, James Davis, did not
show up on Fridays and would not call in, but he was
never disciplined. This comports with the testimony of
employee witnesses who said that employees were given
great leeway as to required working hours. They had no
required starting or quitting times and, according to
credible testimony, any overtime was voluntary and not
mandatory.
Stimson also testified that the Respondent's 4-day
schedule announced in March 1987 was "the intended
schedule" but that he told employees that "there would'
be occasions when we would ask [employees] to work an
extra day, a fifth day, or an extra four or five hours or
whatever, depending on the need at the time." This extra
time was considered overtime. He testified that the Re-
spondent would not order employees to work overtime
but simply "asked them to." He further testified that the
Respondent "never said that it was mandatory" and
"never penalized anybody for not working overtime."
When Stimson tried to explain the change of schedule
that allegedly took place later in 1987, he was unable to
specify exactly what was changed. He testified, in appar-
ent contradiction to his earlier testimony, that he did not
expect Friday to be an overtime day.5
After the hearing, the Respondent submitted documen-
tary evidence, which has been identified as Respondent's
Exhibit 15, setting forth hours worked by employees
over the relevant period. The General Counsel stated no
objection to receipt of the exhibit and I admit it into evi-
dence. I do not find it very helpful in determining
whether employers were required to work certain hours
or days. However, the documentary evidence does con-
firm that generally employees did work 10 hours per
day, 5 days a week. Thus, beginning sometime in March
1987, employees worked less often on Fridays. However,
in June 1987 it appears that employees began working
more often on Friday. There was no Friday work in July
but in August it resumed; indeed employees also worked
on Saturdays. The employees seemingly worked regular-
ly on Fridays through mid-March 1988. During this
period the employees worked different hours but most
prevalent was a daily schedule of 7 a.m. to 5 p.m.
Based on all the evidence submitted in this case, in-
cluding my assessment of the credibility of the witnesses
on this issue, I fmd that the Respondent's scheduled
hours of work prior to March 1988 was 7 a.m. to 5 p.m.,
Monday through Friday. I also fmd, however, that em-
ployees were not required to work any particular hours
5 To the extent that Stimson 's testimony can be viewed as suggesting
that Friday was a required workday, I reject this testimony as contrary
to the more credible testimony of employee witnesses as well as other
parts of Stimson 's own testimony
HOSTAR MARINE TRANSPORT SYSTEMS 191
or any particular overtime. They were permitted to leave
early or miss days so long as they gave notice to the Re-
spondent; indeed, the employees were never penalized
even if they failed to give notice. Employees often left
work after 8 hours and missed Fridays without being pe-
nalized. Thus, although the Respondent maintained an
ostensible schedule of work, it permitted employees to
work their own hours and it had no policy of mandatory
overtime.
4. Further bargaining and the walkouts of
March 7 and 18
In late February or early March, the Respondent's em-
ployees met to -discuss the progress of the negotiations.
The employees decided to put pressure on the Respond-
ent by declining to work what they considered to be vol-
untary overtime. They decided to work 8-hour days and
40 hours per week.
On March 7, 1988, a Monday, a group of employees
punched out and left work at 3:30 p.m. after working 8
hours. Co-owner, Armstrong saw them leave and said,
"see you later fellows." He did not object to their leav-
ing at this hour.
The following day, March 8, 1988, the Respondent
posted a notice on the cafeteria bulletin board which
stated as follows:
This is to reaffirm to all employees that the shop
work schedule which has been in effect since
August 1987, continues to be in effect for the fore-
seeable future. The schedule is: 7:00 a.m. to 5 p.m.
Monday through Friday.
A copy of this notice was also sent to the employees.
The Respondent did not consult with the Union prior to
posting and mailing the notice.
The parties met for their fifth negotiating session on
March 14, 1988. Thomas, Mortimer, and Knudsen repre-
sented the Union; Slosberg represented the Respondent.
The parties reviewed their positions, but neither side
moved from their earlier positions. The Union then indi-
cated that it intended to hold a meeting to present the
Respondent's proposal to the employees. Slosberg indi-
cated that such a meeting was premature and that the
Respondent's offer, should not be considered a "final
offer."s
Union Steward Knudsen returned to the plant after the
bargaining session and informed an official of the Re-
spondent that its proposal would be presented to the em-
ployees that afternoon. Stimson knew about the meeting.
That same day, March 14, the Union called a meeting
of the employees to discuss the Respondent's proposal.
The meeting was held at 3:30 p.m. The employees reject-
ed the Respondent's proposal and decided to refuse to
work on Friday of that week.
6 In a March 22 letter to Thomas, Slosberg summarized his position at
the March 14, 1988 meeting He stated that, contrary to Thomas, he,
Slosberg, did not think further meetings were a waste of time, that he
was prepared , to bargain further, that the Respondent 's position was not
its final offer, and that'it was premature to bring the Respondent's pro-
posal to the employees at this time. He also asked Thomas to call him to
arrange another meeting.
Although the Respondent obviously knew about the
meeting, it is unclear whether the Respondent specifical-
ly knew of the employees' decision to refuse to work on
Friday. However, there is uncontradicted testimony that,
on Thursday, March 17, when Armstrong gave work in-
structions to Knudsen and another employee for the next
day, he said, "if you don't get around to it until Monday,
we'll see you then."
On Friday, March 18, 1988, some of the unit employ-
ees did not report for work.
On Monday, March 21, 1988, the employees who did
not work on Friday reported for work. On that day,
eight of the employees who had missed work on March
18 were given 2-day suspensions. Six of the eight were
also informed that they had left early 'on March 7 and
that the suspension covered this incident as well. This
amounted to a warning for having left early on March 7.
One employee, Richard Olson, who had left early on
March 7, but apparently not missed work on March 18,
was issued a warning notice. Another employee, Richard
Mielke, was initially suspended for missing work on
March 18, but that suspension was rescinded on March
21 because he had informed the Respondent that he
would be absent on that day for National Guard duty.
However, Mielke apparently elected to take the suspen-
sion; the notice to Mielke indicates that Mielke should
have received a warning notice, apparently for leaving
work early on March 7.
Still another employee, James Davis, was discharged
when he reported for work on March 21. He met with
Stimson and was told that he was terminated for low
production. Stimson also mentioned that the Respondent
was concerned that a trailer that Davis had worked on
had had brake problems. Davis said he hoped Stimson
did not think he had sabotaged the trailer. Stimson said,
"I didn't say that."
After the employees received their suspensions and
warnings on March 21, they decided to go on an indefi-
nite strike. The strike lasted until April 5, 1988. After
making an unconditional offer to return to work, the
striking employees were reinstated, except for James
Davis, who had been discharged.
5. Further negotiations from May 5, 1988, to
August 22, 1988
On May 5, 1988, the parties met for the sixth time.
The parties made significant progress at this meeting.
The Respondent proposed the immediate implementation
of wages increases: $1 per hour for striking employees
and 50 , cents for employees hired during the strike. The
Union agreed, expressly reserving its right to continue
proposing retroactivity. The Respondent agreed to add
"maintenance" to the unit description and to add
"mother and father in-laws" to the bereavement leave
section. The Union agreed to Respondent's proposals for
a regular payday, reporting pay and health insurance.
The Union also agreed to the Respondent's grievance
provision provided that arbitration be added. The Re-
spondent agreed and promised to draft such a provision.
The parties met for the seventh time on May 11, 1988.
The parties again reviewed the outstanding proposals.
192 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
They spent much time on union security and dues check-
off. However, no agreements were reached at this meet-
ing.
Mortimer and Slosberg met again on May 20, 1988.
The Respondent again rejected the Union's proposal for
union security. The Respondent also rejected any form
of seniority because of its desire to retain flexibility. The
Union did not deviate from the seniority provision it had
initially proposed. Slosberg stated that he would draft
additional language on holiday pay and field fabrication,
and that the Respondent would consider providing safety
glass lenses.
The parties met again on May 27, 1988, their ninth ses-
sion . The Respondent submitted its second written pro-
posal which incorporated earlier agreements and includ-
ed an arbitration provision. Most of the discussions that
day centered on the Respondent's no-strike provision
which incorporated all the affirmative union obligations
set forth in the Union's proposal but rejected any limita-
tion on union liability in return for such affirmative un-
dertakings.
Further negotiation sessions were held on June 3, July
14, and August 22, 1988. At the July 14 meeting, the
Union submitted its second written proposal. As of the
August 22 meeting, the parties remained apart on union
security, dues checkoff, management rights, seniority, no
strike and other less important issues.
B. Discussion and Analysis
1. Alleged threats
At the second negotiation session on January 27, 1988,
Frank Knudsen, an employee negotiator on the Union's
bargaining team, mentioned that it had been a long time
since he and other employees had received a raise.
Knudsen said that he had been promised that he would
get a raise in July 1987. Stimson reacted angrily and
stated that he had "money for you [and another employ-
ee] written down . . . in July . . . [b]ut when this damn
union stuff started, I couldn't give it to you." Attorney
Slosberg tried to calm Stimson down and they took a
short break from the meeting.?
Knudsen testified that, when he was hired in July
1986, Co-owner Tom Armstrong promised him a raise in
1 year. This would have been in July 1987. Stimson testi-
fied that before receiving the Union's letter, he and other
management officials had been considering giving Knud-
sen and another employee a raise "before two payrolls
arrived" but had not yet decided on the amount. He fur-
ther testified that he was subsequently advised by coun-
sel that the Respondent could not grant raises or change
holidays or vacation schedules.
7 The above is based on Knudsen's credible testimony which was es-
sentially corroborated by two other witnesses, David Mortimer and
Robert Thomas. Stimson's testimony is not really inconsistent although
his version is more toned down than Knudsen 's. Stimson testified that he
did indeed tell Knudsen that he would have received a raise in July 1987
but for receipt of the Union's letter asking for recognition about that
time. He testified that he told Knudsen, "you probably would have
gotten a raise, except the week that we were considering it we got the
letter from the union saying that we had to do everything through
them."
The question here is not whether or not the Respond-
ent unlawfully withheld a promised wage increase. The
question is whether Stimson's remarks-at a bargaining
session-attributing the failure of the Respondent to give
employees a raise to the onset of the Union constitutes
unlawful coercion. I find that it does and that Stimson's
statement was therefore violative of Section 8(a)(1) of
the Act.
It is well settled that an employer is required to pro-
ceed with an expected wage or benefit adjustment as if
the union were not on the scene. Atlantic Forest Products,
282 NLRB 855, 858 (1987). Accordingly, the announce-
ment of a delay in a planned wage increase which at-
tributes the delay to the onset of the union is unlawful.
Id. at 859. Stimson's statements attributed the Respond-
ent's failure to give raises only to the presence of the
Union. He did not give any other explanation. Nor did
he explain that he was trying to avoid influencing a
Board election. Nor were Stimson's statements off-hand
or casual remarks. Indeed, they were made in direct re-
sponse to Knudson's protest about the slow pace of ne-
gotiations. The result was that the employees were led to
believe that selection of the Union caused them to lose
benefits to which they would otherwise be entitled. Such
statements discourage support for the union based on em-
ployer action and thus violate Section 8(a)(1) of the Act.
See American Telecommunications Corp., 249 NLRB
1135, 1137-1138 (1980); Gupta Permold Corp., 289 NLRB
1234 (1988).
Sometime in January or February 1988, employee
James Davis was in Stimson's office to order some parts.
In the course of their conversation, Davis referred to the
pending negotiations. According to Davis, he said, "why
don't we just knock off the bullshit and make it right up
front, sign the contract and let us guys go back to
work." Stimson replied, "I'm not going to sign that
orange piece of shit no matter what. I'll send the work
out, have it done outside cheaper and at a faster rate."
Stimson testified that Davis approached him in the
plant in early January 1988 and initiated a conversation
about the negotiations. According to Stimson, Davis
said, "why don't you sign that friggin contract so we can
get back to work?" Stimson responded that he would
rather "go under than to sign a document" which he de-
scribed as that "sack of shit." Stimson testified that he
objected to the Union's original draft agreement because
it was prepared by the Union's International on the basis
of form language which did not apply to Respondent's
operation.
Although there are some differences in the testimony
of the two witnesses as to what was said, their versions
are substantially in accord. The General Counsel empha-
sizes Davis' testimony that Stimson said he would affirm-
atively subcontract the work and points out that there is
uncontradicted testimony that Stimson made a similar
statement on another occasion when telling employees
why he was against the Union.8 The Respondent empha-
a That statement was made in the summer of 1987, shortly after the
Respondent received the Union's recognition demand, when Stimson
spoke to the assembled employees. The General Counsel has not urged
Continued
HOSTAR MARINE TRANSPORT SYSTEMS 193
sizes that Stimson was simply objecting to the Union's
initial contract offer and was not saying that he would
affirmatively do anything but that he would prefer that
the Company "go under" rather than agree to the terms
of the Union's offer.
In the context in which the remarks were made, I be-
lieve that Stimson was not making a threat of reprisal.
He had already accepted the Union as bargaining agent.
He did object to what he viewed as the Union's rigid ad-
herence to an unrealistic first proposal and he was trying
to give the impression that he would not agree to that
proposal. However, he was not saying that he would
never agree to a contract, or that he would not bargain
in good faith. He said only that he would not agree to
the Union's initial proposal. It was in this context that
Stimson said that he would rather the Company "go
under" or farm out its work. The statement, in whatever
form it was made, was the equivalent of saying that hell
would freeze over before Stimson agreed to the Union's
initial proposal. This is the kind of hyperbole that could
not seriously be viewed as a threat by an employee who
initiated the conversation about the negotiations and used
his own hyperbole-that the employees were not work-
ing because negotiations had not been concluded quickly.
Davis wanted Stimson to sign the contract proffered by
the Union and suggested that, if he did, the employees
would go back to work. To imply from Stimson's re-
sponse to Davis that he would subcontract work in retal-
iation against the Union would be as foolish as taking
Davis' words literally to mean that the employees would
strike or were striking or engaging in an unprotected
slow down. Indeed, even under Davis' version,'Stimson's
words are ambiguous. Stimson was supposedly going to
subcontract work only if he were forced to sign the
Union's initial proposal. He, of course, could not be
forced to sign that proposal and the Union was not enti-
tled to have it signed. In my view there was no specific
threat of retaliation in Stimson's remarks, and I shall dis-
miss this portion of the complaint.
'2. The March 7 and 18 walkouts
It is uncontested that Respondent disciplined employ-
ees for leaving work early on March 7 and staying home
from work on March 18. It is also uncontested that, on
these occasions, the employees missed work to protest
what they perceived to be the Respondent's intractable
bargaining position. This was a concerted protest.
A strike is, of course, a basic concerted activity guar-
anteed protection by the Act. NLRB v. Washington Alu-
minum Co., 370 U.S. 9 (1962); International Van Lines,
409 U.S. 48, 52-53 (1972). There are exceptions to this
rule where the strike is either partial, that is,,where em-
ployees perform some but not all tasks lawfully assigned
by their employer (Audubon Health Care Center, 268
NLRB 135, 137 (1983)), or part of a plan of intermittent
action (Polytech Inc., 195 NLRB 695 (1972)). See also
E. R. Carpenter Co., 252 NLRB 18, 20-22 (1980). More
this statement as a violation of the Act, but argues that it explains some
of the Respondent's other conduct. I have considered this evidence, but I
do not believe it is sufficiently developed for me to make a finding that it
seriously impacted any of the Respondent's other alleged misconduct.
specifically, concerted refusals to work nonmandatory
overtime are protected concerted activities and do not
constitute unprotected partial strikes. Coast Engraving
Co., 282 NLRB 1236, 1251-1252 fn. 1 (1987); Imperia
Foods, 287 NLRB 1200, 1204 (1988). Finally, even where
strikers engage in conduct that may be otherwise unpro-
tected, an employer may not treat strikers in a disparate
manner. See Chesapeake Plywood, 294 NLRB 201, 203
(1989).
In the instant case the evidence is quite clear that the
Respondent did not require the employees to work over-
time. As in Coast Engraving, supra at 1251-1252, here,
"the evidence establishes that employees had previously
refused overtime work without reprimand or other ad-
verse consequences." Stimson's testimony indicates that
employees who left work early and did not work on par-
ticular days, including Fridays, were not penalized.
Moreover, any overtime was considered voluntary.
Thus, on the week of March 7, the employees missed 1-
1/2 hours, but worked over 40 hours the rest of the
week; and on the week of March 14 the employees
worked every day of a 5-day 10-hour per day work
schedule except for Friday. They missed only what was
considered voluntary overtime. Accordingly, by disci-
plining, suspending, and discharging employees for refus-
ing to work voluntary overtime, the Respondent inter-
fered with protected concerted activity. And because
this activity was sanctioned through the Union, the Re-
spondent's punishment also interfered with union activi-
ty., The Respondent thus violated Section 8(a)(3) and (1)
of the Act.
The Respondent defends against the allegation that its
discipline of employees for the March 7 walkout was un-
lawful by stating that it was not notified of the group ac-
tivity and had no idea it was the product of concerted
action (Br. 15, 16). Respondent's contention is without
merit. The evidence is uncontradicted that the employees
decided as a group to leave work early on March 7 in
support of the Union's bargaining position. There is no
general requirement that an employer.be given notice of
a strike. Savage Gateway Supermarket, 286 NLRB 180,
182-183 (1987). Nor do I view as plausible Stimson's tes-
timony that he regarded the walkout of a group of most
of his employees at 3:30 p.m. as individual random acts
unrelated to bargaining negotiations. Indeed, Stimson ad-
mitted that he "knew [the employees] were unhappy
with something . . . ." Moreover, Co-owner Armstrong
saw the group leaving in -unison. The context of the
walkout-in the midst of negotiations-together with the
fact that the employees walked out at the same time,
clearly supports the inference that the Respondent knew
that the employees were engaged in concerted, not indi-
vidual, action. Further, the Respondent reacted to the
walkout not by inquiring why each individual had left
work early, but by posting a notice of general applica-
tion setting forth the existing work schedule. By the time
it actually imposed its discipline for the March 7 walk-
out, 2 weeks later, on March 21, the Respondent knew
that the employees had' walked out again-actually,
stayed 'home-after attending a union meeting, at which
the employees rejected its final offer. Thus, the Respond-
194 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent clearly knew of the concerted nature of the March 7
walkout before it disciplined its employees for the walk-
out.9
It is clear from the evidence that the single refusal to
work nonmandatory overtime on March 7 was protected
concerted activity. Nor was it viewed as a part of a plan
of intermittent- action at the time.
However, even if the walkout of March 7 could be
deemed to be unprotected, the Respondent's discipline of
the employees for missing work on this occasion was
nevertheless unlawful. First of all, the Respondent con-
doned any misconduct by failing to discipline the em-
ployees or to raise any objections to the walkout until 2
weeks later . Thus, the Respondent permitted the employ-
ees to return to work on March 8 and thereafter without
objecting or even raising the matter with employees.
Indeed, it did nothing even after the employees left work
early on March 14 to attend a union meeting. In these
circumstances, I find that the Respondent did not really
view the conduct as warranting discipline and it in effect
condoned the alleged misconduct. See General Electric
Co. 292 NLRB 843, 844 (1989); Dow Chemical Co., 152
NLRB 1150, 1151, 1162-1163 (1965).
In addition, Stimson admitted that the Respondent did
not discipline employees who in the past had left work
before 5 p.m. even where no advance notice was given.
Other testimonial evidence from employees confirmed
that employees left work early without being disciplined.
Thus, the Respondent's discipline of the employees who
left work early on March 7 was an example of disparate
treatment. Only after the Respondent clearly knew that
the employees were protesting the Respondent's bargain-
ing position did it discipline employees for conduct that
had -not theretofore been the cause for discipline. Thus,
the Respondent's belated discipline of employees who
left work early on March 7 not only interfered with pro-
tected concerted activity but discriminated against them
for engaging in union-related activity.
As for the refusal to work on March 18, the Respond-
ent again asserts that the employees' refusal to work was
not protected concerted activity and that it did not know
the employees were engaging in concerted action. I
reject this contention as well. The Respondent knew that
the employees had rejected its contract offer at the
March 14 meeting and, when its employees failed to
report to work the next Friday, it must have known that
they were acting in concert. I reject Stimson's rambling
and implausible testimony that he viewed the absences as
individual decisions not to work. Like the earlier refusal
to work overtime, this refusal to work was a complete,
not a partial, strike. Moreover, Friday work was not
mandatory. Thus, the Respondent could neither punish
the employees nor treat them in a disparate manner be-
cause they protested as a group.
Because the Respondent condoned the March 7 walk-
out, the March 18 refusal to work was not part of a plan
for intermittent strikes. However, even without consider-
9 Documentary evidence shows that, on March 14, the employees left
work early-about 3:30 p m. in order to attend the union meeting at
which the employees decided not to work the following Friday. The Re-
spondent obviously knew about this meeting and did not object to it or
penalize employees for leaving work early to attend it.
ing the condonation of the March 7 walkout, the two
walkouts-that of March 7 and that of March 18-could
not be viewed as an unprotected pattern of intermittent
strikes. The employees worked 10 hours on the 4 days
after March 7, a total of 48 hours. The next week they
worked 38 hours. They worked 8 hours on Monday,
March 14, taking off early to participate in a meeting
wherein they rejected the Respondent's contract propos-
al and decided not to work the following Friday. They
worked 10 hours on the next 3 days and missed work on
Friday, March 18. They then reported for work on
Monday, March 21; after they received the Respondent's
discipline for the earlier walkouts, they engaged in a
strike which lasted about 2 weeks. Although there were
some deviations from the above pattern, it generally re-
flects the hours worked by the employees. This does not
qualify as a plan for intermittent strikes, particularly in
view of Stimson's testimony that the Respondent did not
penalize employees for not working to its 50-hour-per-
week work schedule. The Respondent cited no cases in
support of its contention that the employees' action was
unprotected and those I have read do not support the
contention that two walkouts of the type involved here
constitute a pattern of intermittent strikes. See Crenlo v.
NLRB, 529 F.2d 201, 204 (8th Cir. 1975); NLRB v.
Empire Gas, 566 F.2d 681, 686 (10th Cir. 1977).
In any event, the Respondent's 2-day suspension for
the March 18 strike and its disciplinary action for the
March 7 walkout was discriminatory and for this reason
alone was violative of the Act. The Respondent treated
the employees in a disparate manner because they struck
to protest the Respondent's bargaining position. Stimson
admitted that employees were not penalized for not
working scheduled hours and for missing Friday work
even when no advance notice was given. Indeed, Stim-
son admitted that the Respondent had never before
issued' reprimands to its employees and placed repri-
mands in their files. That the Respondent disciplined em-
ployees for this conduct only after a group protest estab-
lishes the violation in this case. The discipline not only
interfered with protected concerted activity, but, because
the activity was undertaken through the Union, the disci-
pline also tended to discourage union activity.
In all the circumstances, I find that the Respondent's
discipline and suspension of employees for missing work
for 1-1/2 hours on March 7 and for the entire day on
March 18 was violative of Section 8(a)(3) and (1) of the
Act.
3. The Davis discharge
The General Counsel also alleges that the Respondent
discriminatorily discharged Davis for engaging in the 1-
day walkout on March 18. The Respondent denies that it
discharged Davis for this reason but instead alleges that
it discharged him for poor workmanship. I find that the
General Counsel has proved a violation and that the Re-
spondent's alleged reason for the discharge was a pre-
text.
Davis engaged in a 1-day protected walkout to protest
the Respondent's bargaining position. This was, as I have
mentioned above, a protected concerted activity. The
HOSTAR MARINE TRANSPORT SYSTEMS 195
next working day Davis was fired . The timing of the dis-
charge , along with the unlawful discipline of other strik-
ers at the same time , establishes that a reason for the dis-
charge was unlawful.
The General Counsel 's case is strengthened because
the Respondent 's explanation for the discharge fails to
withstand scrutiny and amounts to a pretext.
Stimson, who alone made the decision to discharge
Davis, testified that , in late January, he orally warned
Davis about his productivity and the quality of his work
and complained that Davis was interfering with the
work of others . Stimson claimed that Davis improved his
performance for about 3 or 4 weeks, but then he began
to wander around the shop . He gave no specific exam-
ples of such wandering and there is no other evidence of
warnings to Davis about his work. Stimson also said that
Davis made a mistake in the installation of a trailer light,
but he called this a "minor" matter and admitted that he
is not a "qualified judge" on the technical aspects- of
building trailers.
Stimson testified that he discharged Davis because
Davis was unavailable on Friday to help repair a trailer,
which he had allegedly worked on and which had
broken down that day because of bad brakes . As a result,
Bill Houghton had to travel to Providence, Rhode
Island, with some parts to repair the trailer. It is clear
from Stimson's own testimony that he discharged Davis
because of Davis' unavailability the previous Friday
when he was participating in concerted protected activi-
ty. At one point in his'testimony, Stimson said that he
fired Davis because he "screwed up a trailer ." But later
he said that if Davis had been available on Friday to
"rework that trailer . . . I would have felt differently
about it."
I do not credit Stimson's testimony about Davis' poor
work performance prior to the dates of Davis ' protected
activity . He was unable to give specifics and his testimo-
ny on this point was general and ambiguous . Moreover,
the record reveals that he loaned Davis a substantial sum
of money repayable in weekly installments on March 2.
It is unlikely that Stimson would have done so if Davis
were performing so poorly that he was in danger of im-
minent discharge as Stimson's testimony suggests.
Indeed , it appears that whatever prompted the discharge
occurred after the loan was made . Davis participated in
two walkouts during this period . Nor has the Respond-
ent shown that Davis was responsible for whatever hap-
pened to the trailer brakes that allegedly caused prob-
lems on March 18 . Stimson's testimony was not corrobo-
rated in any way and he himself admitted he had no
technical expertise from which he could assess Davis'
work. Davis' uncontradicted testimony is that he alerted
Tom Armstrong, the management official who does have
technical expertise, to the brake problems on the trailer.
Armstrong told Davis not to worry about the problems.
Finally, I found,Stimson's testimony, on several other
issues, particularly his rambling testimony on cross-exam-
ination concerning his alleged lack of knowledge that the
striking employees were engaged in a, group protest, not
to have been candid or reliable . In addition, Stimson's
testimony was inconsistent . At one point he conceded
that Davis "would not show up and would not call in";
later he claimed not to have remembered this. In these
circumstances, I reject his reasons for the discharge of
Davis and find instead that the real reason for the dis-
charge was that Davis engaged in a protected strike on
Friday, March 18. The Respondent's discharge of Davis
was thus violative of Section 8(a)(3) and (1) of the Act.
4. The alleged surface bargaining violation
The General Counsel alleges that the' Respondent vio-
lated Section 8(a)(5) of the Act by unilaterally establish-
ing a new schedule of working hours on March 8, 1988,
and by bargaining in bad faith, from January through
March 1988, by (1) advancing and adhering to "predict-
ably unacceptable" , bargaining proposals; (2) excluding
the Union from any effective means of participation in
decisions affecting terms and conditions of employment;
(3) delaying the submission of contract proposals and re-
quested information to the Union; and (4) failing to meet
and confer at reasonable times. The complaint also in-
cludes a general provision alleging that the Respondent,
by "its overall acts and conduct," including the specified
allegations, failed to bargain in good faith.
Section 8(a)(5) of the Act requires an employer to bar-
gain in good faith with the union representing its em-
ployees. Each party must make a "serious attempt to re-
solve differences and reach a common ground." NLRB
v. Insurance Agents, 361 U.S. 477, 486, 487, 488, (1960).
While one party may not approach the bargaining table
with a closed mind, -neither is it bound to yield any posi-
tion fairly maintained. And the' Board "may not compel
concessions or otherwise sit in judgment upon the sub-
stantive terms of collective bargaining agreements."
NLRB v. Herman Sausage Co., 275 F.2d 229, 232 (5th
Cir. 1960), quoting from NLRB v. American National In-
surance Co., 343 U.S. 395 (1952). See also Reichhold
Chemicals, 288 NLRB 69 (1988).
Even where initial bargaining positions are rigid,
before finding a failure to bargain in good faith, the
Board considers such matters as a party's explanations
for positions, its conduct on other issues and the other
party's responses. Moreover, the Board understands that
parties who make strong statements at the beginning'of
bargaining often meliorate their positions later. See Ste-
penson-Yost Steel, 294 NLRB 395 (1989).
Applying these principles here, I find that the General
Counsel has failed to prove by a preponderance of the
evidence that the Respondent bargained in bad faith in
violation of Section 8(a)(5) and (1) of the Act as alleged
in the complaint.
I do not believe that the General Counsel has shown
by a preponderance of the evidence that the Respond-
ent's March 8 notice amounted to a unilateral change in
work hours. The evidence supports the view that the
notice simply reaffirmed the intended work schedule that
was in effect prior to March 8. Although the testimony
of employees establishes that the Respondent did not pe-
nalize them for taking time off, it does not establish that
the Respondent did not have a schedule of work hours.
The Respondent did have such a schedule even though it
did not enforce it. Stimson's testimony is consistent with
the latter view. Thus, I have found the Respondent's en-
196 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
forcement of the March 8 notice on March 21 was dis-
criminatory insofar as it resulted in the discipline of em-
ployees for not having adhered to scheduled work hours
on March 7 and 21. However, the notice posting itself
was not unilateral action because there was no sugges-
tion that the Respondent was changing anything; indeed
the notice purported to restate the existing work sched-
ule and to a certain extent it did. The Respondent did
not penalize employees for the March 7 walkout until 2
weeks later . Accordingly, I shall dismiss the allegation
that the March 8 notice was a unilateral change of work-
ing hours within the meaning of the Act.
Next, I turn to the specific allegations that the Re-
spondent delayed submitting proposals and information
to the Union and failed to meet at reasonable times. I
find nothing in the General Counsel's evidentiary presen-
tation on these matters that would warrant a finding of
bad faith. The General Counsel alleges that the Respond-
ent delayed scheduling the first negotiation session from
the time the Union's first proposal was submitted. I see
no unreasonable delay. The proposal was submitted on
December 7, 1987, and the first session was held on Jan-
uary 11, 1988. Even without taking into account the in-
tervening holiday season, this delay is not unusual. Nor,
despite the Union's apparent interest in concluding nego-
tiations quickly, were the subsequent meetings delayed in
any unusual way. The Respondent submitted its counter-
proposal on February 3, 1988. The fact that the final
portion of its grievance proposal was missing at this time
was inadvertent and not the result of an intentional
desire to procrastinate. The language was subsequently
provided and because the language was ultimately ac-
cepted by the Union, there was no prejudice to the
Union's bargaining position. Likewise, the Respondent's
delay in providing a health insurance document was in-
advertent and lacking in any prejudice. The document
contained or referred to information generally known by
the employees. The employees had been given health in-
surance booklets covering the existing plan and the Re-
spondent proposed continuing the same plan. The re-
quested document was subsequently provided and, here
again , the Union accepted the Respondent's proposal.
The delays in these instances were not lengthy and not
deliberate.
The General Counsel also contends that a particular
hiatus from February 25 through March 14 was caused
by the intransigence of the Respondent's lawyer. Howev-
er, it was the union negotiators who were unavailable for
2 weeks. While it is true that the Respondent's attorney
was unavailable to meet on February 25 because of an
unexpected litigation matter, he did notify the union ne-
gotiators as soon as he learned of his unavailability and
attempted to set up an early meeting on the return of the
union negotiators. Nothing in this particular incident
could be called evidence of bad faith.
The General Counsel saves his heavier arguments for
the other allegations. Thus, it is alleged that the Re-
spondent's management-rights clause and certain other
clauses gave it the complete authority to regulate the
employees' hours, wages, and terms and conditions of
employment, and excluded the Union from any effective
representation of employees. I disagree with the General
Counsel's characterizations of the Respondent's bargain-
ing positions.
First of all, the General Counsel concentrates on the
early part of the negotiations. However, the bargaining
cannot be so restricted. Thus, the Respondent did make
significant economic proposals advantageous to the em-
ployees, including a wage increase, in its February 3,
1988 proposal. It later put the wage increase proposal
into effect with the agreement of the Union. And, al-
though it resisted arbitration early in the bargaining, it
subsequently accepted arbitration. Moreover, the Re-
spondent's early insistence that the contract not include
recognition of maintenance employees was perfectly
proper. There were no strictly maintenance employees
and the Board's certification had excluded them. Never-
theless, after the Union petitioned for a clarification, the
Respondent agreed to the inclusion of maintenance em-
ployees. The Respondent was also on sound ground in
objecting to the Union's provision that the International
be permitted to approve the agreement but not be a
party to it. There was no reason for this clause to be in
the agreement for the Union's internal arrangements for
approval of an agreement need not be a subject of bar-
gaining . But, in any event, the Union later dropped this
matter.
Indeed, much of the early bickering in these negotia-
tions was due to the Union 's insistence that a form agree-
ment, essentially drafted by the International, be accept-
ed by the Respondent without alteration. That proposal
included provisions that had little or no relationship to
the Respondent's operation. The Respondent was newly
formed and operated quite informally. It had an absolute
right to draft a proposal that conformed to its view of
how it could handle a union in its fledgling business, and
it did so, submitting its first proposal in a reasonably
timely manner on February 3, 1988. Moreover, the
Union itself never budged from some of its proposals, for
example union security and dues, seniority, and job clas-
sifications. This evidence provides a backdrop against
which the Respondent's positions and posture must be
evaluated.
Viewing all the circumstances of the negotiations, in-
cluding the Union's positions, I cannot agree that the Re-
spondent's bargaining proposals and positions illustrated
bad-faith bargaining. Some of the provisions the General
Counsel attacks were harsh but not inherently unlawful.
The Respondent insisted on broad management-rights
and no-strike clauses as well as flexibility in job classifi-
cations and assignments. The Respondent explained its
positions on all of these matters. Actually, the manage-
ment-rights clause provided that it could be limited by
whatever the parties agreed on in the contract; and Mor-
timer testified that his only objection to the clause was
that the Respondent wanted a broader right to subcon-
tract than the Union was willing to grant. Nor did the
Respondent's position on the no-strike clause show a
desire not to reach agreement; the Union had proposed
its own no-strike, no-lockout clause. Likewise, the Re-
spondent's determination to retain control over assign-
ments and to reject strict job classifications was related
to its desire to maintain flexibility in a young and close
HOSTAR MARINE TRANSPORT SYSTEMS 197
knit business enterprise. The Union was itself unwilling
to change its position to meet the Respondent's need for
flexibility. By the same token the Respondent was not
obligated to accept the Union's proposals on union secu-
rity and dues checkoff. The Union itself was adamant on
these proposals. In the absence of other indicia of bad-
faith bargaining, the Respondent's refusal to accept these
proposals was not unlawful. Moreover, none of the Re-
spondent's proposals could be considered to have been
adamantly adhered to as of the end of March 1988, the
date when the General Counsel contends that a complet-
ed refusal to bargain occurred. Slosberg specifically told
union representatives that the employee vote of March
14 was premature and that the proposal that the employ-
ees were voting on was not a "final offer." The Re-
spondent was desirous of reaching agreement and made
significant concessions to this end even after the Union's
2-week strike in late March and early April. According-
ly, I find that the Respondent did not adamantly insist on
contract proposals that would strip the Union of its rep-
resentative status or would otherwise establish bad-faith
bargaining . See Commercial Candy Vending Division, 294
NLRB 908 (1989).
Nor did the Respondent commit unfair labor practices
that established bad faith at the bargaining table. Al-
though Stimson did, make an outburst at one of the bar-
gaining sessions to the effect that two employees would
have received a raise the previous July but for the onset
of the Union, this remark did not adversely affect the
bargaining process. The Respondent's lawyer quickly
calmed Stimson and the Respondent did offer an across-
the-board raise during negotiations and later implement-
ed the raise with the Union's consent. Stimson's state-
ment did not, in my view, adversely affect the bargaining
process. Likewise, the Respondent did discipline employ-
ees for their protests on March 7 and 18. However, here
again, I do not believe that the Respondent's unfair labor
practices infected the bargaining process. The Respond-
ent's conduct was the result of its anger at the employees
for their walkouts and was not part of a plan to frustrate
bargaining . The Respondent did not discriminate against
the employees for the 2-week strike they engaged in
after the unlawful disciplinary action. Indeed, it seemed
to make some concessions after that strike. These unfair
labor practices show the Respondent's animus against the
Union; but they do not provide a sufficient indicia of
bad-faith bargaining to warrant the finding of a violation
in the circumstances of this case. See River City Mechani-
cal, 289 NLRB 1503 (1988); Aztec Bus Lines, 289 NLRB
1021, 1023 (1988).
In all the circumstances, I do not believe that the to-
tality of the Respondent's conduct evinces a desire not to
reach agreement or to frustrate bargaining. Accordingly,
I shall dismiss the complaint allegations that the Re-
spondent bargained in bad faith in violation of Section
8(a)(5) and (1) of the Act.
2. By warning and suspending employees for engaging
in protected concerted activity in support of the Union's
bargaining position on March 7 and 18, 1988, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
3. By discharging employee James Davis for engaging
in protected concerted activity in support of the Union's
bargaining position on March 7 and 18, 1988, the Re-
spondent violated Section 8(a)(3) and (1) of the Act.
4. The violations set forth above are unfair labor prac-
tices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
5. Respondent has not otherwise violated the Act.
THE REMEDY
I shall recommend that the Respondent be ordered to
cease and desist from engaging in the conduct found un-
lawful herein and to post an appropriate notice. I shall
also recommend that the Respondent rescind the warn-
ings and suspensions issued to employees on March 21,
1988, for their participation in protected concerted activ-
ity and to offer reinstatement to employee James ]Davis.
The Respondent will also be ordered to make employees
whole for any loss of earnings or compensation they may
have suffered due to the Respondent's unlawful conduct,
computed as provided in F. W. Woolworth Co., 90 NLRB
289 (1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987).
On the foregoing findings of fact and conclusions of
law, I issue the following recommended I I
ORDER
The Respondent, Hostar Marine Transport Systems,
Inc., Boston, Massachusetts, its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Attributing the failure to grant employees wage in-
creases or other benefits to the onset of the Union.
(b) Warning, suspending, discharging, or otherwise dis-
ciplining employees for engaging in protected concerted
activity within the meaning of Section 7 of the Act.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Offer to employee James Davis immediate and full
reinstatement to his former job or, if that job no longer
exists, to a substantially equivalent position, without prej-
udice to his seniority or other rights, and make him and
all other employees who were unlawfully suspended for
engaging in protected concerted activity whole for any
loss of earnings or benefits that they may have suffered
because of the Respondent's unlawful conduct in the
manner set forth in the remedy section of this decision.
CONCLUSIONS OF LAW
1. By attributing the failure to grant a wage increase to
the onset of the Union, the Respondent violated Section
8(a)(1) of the Act.
10 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings , conclusions, and recommended
Order shall, as provided in Sec. 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
198 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(b) Remove from its records and files any notations
dealing with the warnings, suspensions, and discharges
found unlawful herein and notify the affected employees
in writing that this has been done and that evidence of
the warnings, suspensions, and discharges will not be
used as a basis for future personnel actions.
(c) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(d) Post at its office in Plympton, Massachusetts,
copies of the attached notice marked "Appendix.""
Copies of the notice, on forms provided by the Regional
Director for Region 1, after being signed by the Re-
spondent's authorized representative, shall be posted by
the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including
all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respond-
ent to ensure that the notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
It is further recommended that those allegations of the
complaint not found to have been sustained herein are
dismissed.
11 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
WE WILL NOT attribute the failure to grant employees
wage increases or other benefits to the onset of the
Union.
WE WILL NOT warn, suspend, discharge, or otherwise
discipline employees for engaging in protected concerted
activity within the meaning of Section 7 of the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their Section 7 rights.
WE WILL offer to employee James Davis reinstatement
to his former job of, if that job no longer exists, to a sub-
stantially equivalent position, without prejudice to his se-
niority or other rights with full backpay. WE WILL also
make whole with interest Davis and other employees
who lost pay because of our unlawful suspension of them
for engaging in protected concerted activity in March
1988.
WE WILL remove from our records any warnings or
notations dealing with the unlawful warnings, suspen-
sions , and discharges of March 1988 and notify the em-
ployees in writing that this has been done and that evi-
dence of such warnings, suspensions, and discharges will
not be used as a basis for future personnel actions.
HOSTAR MARINE TRANSPORT SYSTEMS,
INC.