Industrial Electric Reels

National Labor Relations Board - Board Decisions

Apr 12, 1993

310 N.L.R.B. 1069 (N.L.R.B. 1993)

1069
310 NLRB No. 169
INDUSTRIAL ELECTRIC REELS
1 Unless otherwise noted, all dates are in 1991.
2 The Union explains that, although it filed numerous exceptions,
‘‘they all boil down to one basic exception from which all of the
others flow,’’ that is, that the judge erroneously found that the Re-
spondent ‘‘‘repudiated’ its unlawful bargaining conduct up to and in-
cluding July 1, 1991, thereby converting the unfair labor practice
strike into an economic strike. Further, that the poststrike conduct of
the employer created an impasse which permitted the employer to
permanently replace the employees then on strike.’’ The Union as-
serts that the ‘‘Questions to be argued’’ are ‘‘Whether or not the em-
ployer’s remedial conduct subsequent to July 1, 1991 effectively re-
pudiated its past conduct . . . thus turning the unfair labor practice
strike into an economic strike, setting the ground work for bar-
gaining to impasse and the ultimate replacement of striking employ-
ees with permanent replacements.’’ We understand from the fore-
going that the Union’s arguments are based entirely on its assertion
that the Respondent did not effectively remedy its July 1 conduct.
The Union has not formally excepted to the judge’s recommended
dismissal of the complaint allegations that the Respondent unlaw-
fully refused at times to discuss economic issues and that the Re-
spondent refused after July 1 to meet with the Union until after July
4. The Union’s brief does contain several suggestions that the Re-
spondent demonstrated bad faith in other ways, but does not identify
the conduct referred to or explain why it should affect our decision.
In the absence of such identification or explanation, we decline to
find such bad-faith bargaining.
The Respondent has moved to strike the Union’s exceptions and
brief on the ground that they are based on theories—surface bar-
gaining and ineffective repudiation of unlawful conduct—not argued
to the judge. We deny the motion. Although we would not have
characterized this as a ‘‘surface bargaining’’ case, ‘‘take-it-or-leave-
it’’ bargaining, of the sort alleged to be unlawful here, has the same
kind of ‘‘going through the motions’’ quality as surface bargaining.
Similarly, although the Union inaccurately states that the judge
found that the Respondent repudiated its July 1 conduct, rather than
that it remedied that conduct (as the judge actually found), the two
concepts are not unrelated. See Mohawk Liqueur Co., 300 NLRB
1075, 1086 (1990). In any event, the parties’ contentions on this
point are moot; as we find that the Respondent did not violate the
Act on July 1, it is immaterial whether its conduct on that day was
either remedied or repudiated.
Industrial Electric Reels, Inc. and Lodge 31, Inter-
national Association of Machinists and Aero-
space Workers, AFL–CIO. Case 17–CA–15705
April 12, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On July 7, 1992, Administrative Law Judge Wallace
H. Nations issued the attached decision. The Charging
Party filed exceptions and a supporting brief; and the
Respondent filed exceptions, a supporting brief, and a
brief in answer to the Charging Party’s exceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings, and con-
clusions only to the extent consistent with this Deci-
sion and Order.
This case concerns the Respondent’s conduct during
its negotiations with the Union (the Charging Party)
over a successor collective-bargaining agreement in
1991.1 The complaint alleges that the Respondent vio-
lated Section 8(a)(5) and (1) by bargaining in bad faith
in several respects, and by implementing its last offer
with respect to returning strikers without having first
bargained to a lawful impasse. The complaint also al-
leges that the Respondent violated Section 8(a)(3) and
(1) by refusing to reinstate unfair labor practice strikers
after the Union had made an unconditional offer on
their behalf to return to work.
The judge found that the Respondent had bargained
in bad faith in only one respect, namely, by making a
‘‘take it or leave it’’ offer to the Union on July 1.
Having found this violation, however, the judge found
that the Respondent subsequently offered to, and did,
engage in further bargaining and at all times thereafter
bargained in good faith, ultimately to a lawful impasse,
and lawfully implemented its final offer. The judge
further found that the Respondent’s unlawful conduct
on July 1 was not a contributing cause of the strike,
and that the strike was, from the beginning and after-
wards, an economic strike. Because the strikers were
economic strikers who had been permanently replaced,
the judge found that the Respondent was not obliged
to reinstate them on request; he also found that the Re-
spondent did make a valid offer of reinstatement to all
strikers except for those accused of strike misconduct.
In sum, the judge found that the Respondent did not
violate Section 8(a)(3) and violated Section 8(a)(5)
only by the manner in which it presented its offer on
July 1.
In exceptions, the Respondent contends that the
judge erred only in finding that its conduct on July 1
was unlawful, and that the complaint should be dis-
missed altogether. The Union argues that the judge in-
correctly found that the Respondent effectively repudi-
ated its July 1 conduct, and hence that he also erred
in finding that the strike was an economic strike, that
the Respondent lawfully implemented its final offer
after bargaining to a good-faith impasse, and that it
lawfully permanently replaced the strikers.2 For the
reasons that follow, we agree with the Respondent, and
we shall dismiss the complaint in its entirety.
As the judge found, the Respondent and the Union
have been parties to a series of collective-bargaining
agreements, the most recent of which was effective
from July 5, 1988, through July 4, 1991. The parties
commenced bargaining over a successor agreement in
May. At the first bargaining session, on May 29, the
parties agreed to follow the same procedure they had
used in the 1988 negotiations, that is, to discuss non-
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The complaint alleges that the Respondent unlawfully refused to
discuss economic issues before July 1. As the parties had agreed to
discuss only noneconomic issues first, the judge dismissed that alle-
gation, and no exceptions were filed to the dismissal.
4 Brockley was present at the May 29 session, as he had been at
the first session in 1988.
5 The importance of those issues, and the parties’ positions con-
cerning them, are explained in the judge’s decision.
6 Both Gary Miller and James Mueller, who also represented the
Union at the June 27 meeting, testified that Miller made no such
statement. However, the judge seems to have discredited their denial.
Indeed, the judge found Gary Miller to be a generally unreliable wit-
ness.
7 In fact, the Respondent’s July 1 proposal was put to a ratification
vote by the Union on July 2, and was rejected.
8 We therefore do not find significance in the Respondent’s rejec-
tion of the Union’s June 25 request to extend the 1988 contract. The
Union asked for a contract extension in 1988 after the membership
had voted to reject the Respondent’s initial economic proposal. In
1991, by contrast, the Union requested a contract extension before
the Respondent had made its economic offer, but did not renew its
request after the employees had rejected the Respondent’s proposal.
In addition, the July 4 expiration date of the contract fell on a Thurs-
day in 1991; the next workday was Monday, July 8. Thus, in 1991,
even without a contract extension, there was a full week between the
July 1 negotiating session and the first day that a failure to reach
agreement would have effectively forced a decision over whether to
strike or to work without a contract.
economic issues before taking up economic proposals.3
They also agreed that, as in 1988, the Respondent’s
president, Don Brockley, would not take part in nego-
tiations until the parties were ready to discuss eco-
nomic issues.4
The parties’ negotiators met again on May 30 and
on eight more occasions in June. Numerous proposals
were exchanged; some were agreed to, and others were
dropped. At the end of the June 27 session, however,
several important issues—the Respondent’s ability to
make technological changes, subcontracting, certain
job classifications, and severance pay—remained unre-
solved.5
At the June 25 meeting, the Union’s chief nego-
tiator, Gary Miller, proposed that the existing contract
be extended, but the Respondent’s negotiators did not
agree. At the June 27 session, one of the Respondent’s
negotiators, Ken Hamlin, responded that the morale at
the plant was bad, and that the Respondent wanted to
conclude the negotiations and have a new contract be-
fore the July 4 expiration date of the existing agree-
ment. The parties agreed to hold the next bargaining
session on Monday, July 1, and that Brockley would
be present to discuss economic proposals. (Brockley
was in Europe on June 27, but returned to Omaha on
Friday, June 28; he told his bargaining team to be pre-
pared to meet over the weekend.)
According to the apparently credited testimony of
Tony Bailey, a member of the Respondent’s negoti-
ating team, when the July 1 bargaining date had been
set, Gary Miller told Bailey and Hamlin, ‘‘Fine, you
guys are going to have to give us your best offer on
Monday so we can take a vote then.’’6 The judge then
found that:
Although the Union representatives may not
have intended it, I believe that both Hamlin and
Bailey honestly believed that the Union had asked
for the Company’s best offer to be presented on
July 1. No other meetings were set and evidently
a ratification vote meeting was scheduled for July
2. This position was communicated to Brockley in
Europe. Everything the Company did next points
to the fact that it held the belief that their July 1
proposal would be voted upon on July 2.7
We note that the Respondent’s good-faith belief, as
found by the judge, that it was expected to make its
best offer to the Union on July 1 was consistent with
the course negotiations took in 1988. Thus, in 1988,
after several bargaining sessions, Brockley returned to
the negotiations and the Respondent made its first eco-
nomic offer on July 1. The Union voted the proposal
down. The Union then sought, and obtained, the Re-
spondent’s agreement to extend the contract. The par-
ties met again on July 6 and reached a tentative agree-
ment, which was ratified the next day.8
In any event, Brockley and his 1991 negotiating
team set about drafting the Respondent’s initial eco-
nomic proposal. Brockley was worried about a strike,
because he was afraid the Respondent could not with-
stand one. Complicating matters was the fact that the
Respondent, with the Union’s acquiescence, had imple-
mented a ‘‘two-tier’’ wage system in 1986. In
Brockley’s view, the higher paid Tier I employees
were still being overpaid, and he wanted to hold the
line on wages for that group. That being the case,
Brockley doubted that the Tier I employees would ap-
prove any proposal the Respondent might make. The
Respondent therefore structured its proposal with the
goal of making it attractive to the Tier II employees,
who constituted about 60 percent of the unit, in the
hope that enough of them would vote for the proposal
and that it would be ratified. The proposal thus pro-
vided for no wage increase in the first year for Tier
I employees, followed by 1-percent increases in each
of the next 2 years. For Tier II employees, the Re-
spondent offered a 10-percent first-year wage increase
and 3-percent increases in each of the next 2 years.
The Respondent also proposed increasing the deduct-
ible on the employees’ health insurance, increasing the
premiums paid by the employees, and requiring em-
ployees to pay 20 percent of the first $2500 of covered
expenses annually.
At the July 1 meeting, the Respondent presented and
explained its economic proposal. After a discussion,
the Union caucused and returned with a counter-
1071INDUSTRIAL ELECTRIC REELS
9 The pertinent testimony is recounted in sec. III,B,2 of the judge’s
decision.
10 The judge inadvertently misstated certain details of the offers
made at the July 22 bargaining session. The Respondent’s initial
offer that day for Tier I employees was for wage increases of 4, 3,
and 2 percent for the 3 years of the contract, and for 6, 3, and 3
percent for Tier II employees. The Union’s counterproposal for Tier
I employees was for 3, 3, and 2 percent. These inconsequential er-
rors do not affect our decision.
11 The judge found nothing unlawful in Brockley’s unwillingness
to discuss the Union’s counterproposal at length, because he found
that proposal to be incompatible with the Respondent’s economic
goals. Rather, he found unlawful the Respondent’s refusal to con-
sider any substantive change in its own offer.
12 The judge cited General Electric Co., 150 NLRB 192 (1964),
enfd. 418 F.2d 736 (2d Cir. 1969), cert. denied 397 U.S. 965 (1970),
and American Meat Packing Corp., 301 NLRB 835 (1991).
13 NLRB v. Insurance Agents’ Union, 361 U.S. 477, 485, 498
(1960).
14 Id. at 485, citing 1 NLRB Annual Report 85–86 (1936); General
Electric Co., supra, 150 NLRB at 194.
15 Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984); Gen-
eral Electric Co., supra, 150 NLRB at 197.
proposal. The Union proposed annual wage increases
of 5, 4, and 4 percent for Tier I employees, and larger
increases for employees in Tier II; at the end of 5
years, Tier II would have been merged into Tier I. The
Union also proposed phasing the Respondent’s insur-
ance proposals in over a 3-year period.
When it became clear that the Union was calling not
only for a merger of Tier II into Tier I, but at consid-
erably higher wage rates than the Respondent had pro-
posed, Brockley said he was not interested in the
Union’s proposal. Exactly what was said thereafter is
unclear, because the judge did not attempt to resolve
the discrepancies in the testimony concerning the rest
of the bargaining session.9 According to the union wit-
nesses, Brockley told the union negotiators that they
had his offer ‘‘and that’s it,’’ or ‘‘take it or leave it.’’
Gary Miller testified that Brockley said there was noth-
ing more to talk about; Miller then asked Brockley to
put a total written proposal together—the Respondent’s
best offer—so that the Union could vote on it the next
day, and Brockley agreed to do so. Gary Miller also
testified that he asked Brockley if they could let the
employees have the proposal during the holidays and
vote on it afterward, but that Brockley refused and also
refused to extend the contract. Still according to Gary
Miller, the Respondent’s negotiators left while the
Union’s bargaining team was caucusing. The Respond-
ent’s witnesses testified that Gary Miller asked
Brockley for his best offer, and that Brockley replied
that Miller already had it, although the figures for the
Tier II employees could be reduced and those for the
Tier I employees increased if that would help to get
the proposal accepted. The Respondent’s witnesses tes-
tified that Gary Miller said that the Respondent’s offer
‘‘sucked,’’ and that he was going to recommend a
strike; Miller testified that he may have made such a
comment.
On July 2, the Respondent gave the Union its full
written proposal. The employees voted to reject the
offer and to strike. On July 3, the Respondent gave the
Union a letter from Brockley stating that the Respond-
ent was ready to meet with the Union at the Union’s
convenience to continue good-faith negotiations. Gary
Miller called Ken Bailey that same day and asked
when the parties could meet again. According to Bai-
ley’s credited testimony, Bailey told Miller that the
Respondent was prepared to negotiate through the
weekend to avoid a strike, but Miller refused. The
strike commenced on July 8. The parties resumed ne-
gotiations on July 11. At this and subsequent meetings,
the parties engaged in further bargaining over eco-
nomic issues; however, although both the Respondent
and the Union modified their initial positions,10 no
agreement was ever reached.
As we have noted, the judge did not decide which
version of the events of July 1 should be credited. He
found it unnecessary to do so because, in his view,
under any version, Brockley’s actions on July 1 clearly
conveyed a ‘‘take it or leave it’’ message. Con-
sequently, the judge found that the Respondent dem-
onstrated an unwillingness to negotiate over its eco-
nomic proposal on that date, or to make any significant
change in that proposal, thus forcing the Union to call
for a vote over the Respondent’s economic package
without significant negotiation. The judge found that
the manner in which the Respondent presented its
‘‘first, best and final’’ offer and its refusal to negotiate
seriously over it violated Section 8(a)(5).11 Even
though he found that the Respondent made its eco-
nomic offer in an attempt to reach a contract (a posture
the judge recognized is normally not the mark of bad-
faith bargaining), he concluded that the Respondent
was unlawfully attempting to circumvent the bar-
gaining process.12
Whether an employer has fulfilled its statutory duty
to bargain in good faith depends on whether its con-
duct at the bargaining table (and elsewhere) dem-
onstrates a real desire to reach agreement and enter
into a collective-bargaining contract.13 ‘‘The essential
thing is . . . the serious intent to adjust differences
and to reach an acceptable common ground.’’14 Be-
cause the existence or nonexistence of good faith de-
pends on the employer’s desire or intent, the Board
must consider the employer’s overall conduct.15 In this
regard, Section 8(d) specifically provides that the duty
to bargain in good faith ‘‘does not compel either party
to agree to a proposal or require the making of a con-
cession.’’ Thus, the Board has held that ‘‘[a] party is
entitled to stand firm on a position if he reasonably be-
lieves that it is fair and proper or that he has sufficient
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Atlanta Hilton & Tower, supra, 271 NLRB at 1603 (citation
omitted).
17 General Electric Co., supra, 150 NLRB at 196, citing NLRB v.
Truitt Mfg. Co., 351 U.S. 149, 154 (1956) (Frankfurter, J., concur-
ring).
It is not always easy in practice to draw the fine distinctions be-
tween lawful and unlawful bargaining conduct in this area. As the
court of appeals put it in General Electric, ‘‘The difficulty here . . .
arises out of the herculean task of legislating a state of mind.’’ 418
F.2d at 762.
18 Sage Development Co., 301 NLRB 1173, 1176 (1991), citing
Allbritton Communications, 271 NLRB 201, 206 (1984), enfd. 766
F.2d 812 (3d Cir. 1985), cert. denied 474 U.S. 1081 (1986).
19 NLRB v. Insurance Agents’ Union, supra at 485; General Elec-
tric Co., supra, 150 NLRB at 194.
20 88 Transit Lines, 300 NLRB 177, 178 (1990).
21 Long Island Jeep, 231 NLRB 1361, 1367 (1977).
22 Ibid.
23 See fn. 2, supra.
24 In 1988, the Respondent also presented its initial economic offer
on July 1, and it was voted on (and rejected) on July 2.
25 See Long Island Jeep, supra at 1367.
bargaining strength to force the other party to
agree.’’16 However, entering negotiations ‘‘with a pre-
determined resolve not to budge from an initial posi-
tion’’ betrays an attitude inconsistent with good-faith
bargaining.17 Statements made at the bargaining table
may, of course, be evidence of an intention not to bar-
gain in good faith. However, the Board is careful not
to ‘‘throw back in a party’s face remarks made in the
give-and-take atmosphere of collective bargaining,’’
because to do so would frustrate the Act’s policy of
encouraging free and open communications between
the parties.18
A party may be found to have violated its duty to
bargain in good faith by maintaining a ‘‘take-it-or-
leave-it’’ attitude while going through the motions of
bargaining.19 Thus, ‘‘if a party is so adamant con-
cerning its own initial positions on a number of signifi-
cant mandatory subjects, we may properly find bad
faith evinced by its ‘take-it-or-leave-it’ approach to
bargaining.’’20
Applying the foregoing principles to the events in
this case, we find, contrary to the judge, that the Re-
spondent did not violate Section 8(a)(5) at the July 1
meeting. We find, instead, that the Respondent’s con-
duct and statements at that session, when viewed in the
context of the parties’ prior and subsequent actions,
were fully consistent with good-faith bargaining.
To begin with, we note that, even if the Respondent
couched its initial economic proposal on July 1 in lan-
guage indicating that it was presenting its best or final
offer, that fact alone does not compel a finding of bad
faith. The duty to bargain does not preclude a party
from making its best offer first, or require ‘‘auction’’
bargaining.21 And although presenting an offer on a
‘‘take-it-or-leave-it’’ basis may be evidence of bad
faith, it is not per se unlawful. The determination of
whether a party making such an offer has bargained in
bad faith must be based on the totality of that party’s
conduct.22
Here, the Respondent has not been found to have
acted unlawfully in any respect other than by its be-
havior at the July 1 bargaining session. The judge rec-
ommended dismissal of all the other complaint allega-
tions, and the Union does not argue that any of the Re-
spondent’s other conduct in negotiations was unlaw-
ful.23 Nor is there any contention that the Respondent
engaged in other conduct which, though lawful, none-
theless might be indicative of bad faith. Therefore, any
finding that the Respondent failed to bargain in good
faith would have to stand on the Respondent’s July 1
actions.
The Respondent’s conduct and statements on July 1
cannot be evaluated, however, without considering
both what preceded and what followed them. The par-
ties had agreed, as they had in 1988, to take up non-
economic matters first and to reach economic issues
only later, when Brockley would be present. On July
1, the parties met to discuss economic issues for the
first time. The judge found that the Respondent’s ne-
gotiators came to that session honestly believing that
the Union wanted them to present their best offer, and
that the Union would put the offer to a ratification vote
on July 2.24 In effect, the Respondent’s negotiators did
as they believed they had been asked. They brought to
the table an economic proposal that met the Respond-
ent’s business needs and that they also believed had a
reasonable chance of being accepted. The latter point
was important, because Brockley feared the Respond-
ent could not withstand a strike, and therefore struc-
tured the offer to make it attractive to the Tier II em-
ployees who constituted the majority of the unit. Hav-
ing presented its offer, with the expectation that it
would be voted on the next day, the Respondent rea-
sonably declined to make any further offers for the
time being.25 During the July 1 session, the Union’s
Gary Miller asked Brockley to give his best offer so
that it could be voted on the next day. Thus, even if
the Union’s negotiators had not asked for the Respond-
ent’s best offer before July 1, Miller admittedly did so
on that date.
On July 2, the Respondent tendered a written copy
of its July 1 offer to the Union, at Gary Miller’s re-
quest. When the employees rejected the proposal, the
Respondent offered on July 3 to meet at the Union’s
convenience for further bargaining. Although bar-
gaining did not resume until July 11, the judge found
that the delay was caused by the Union’s refusal to ac-
cept the Respondent’s suggestion to bargain through
the weekend, if necessary, to avoid a strike. During the
subsequent bargaining, as noted, the Respondent modi-
fied its economic proposals, although never to the
Union’s satisfaction.
1073INDUSTRIAL ELECTRIC REELS
26 We do not rely on the judge’s discussion of the relative reason-
ableness of the parties’ July 1 offers.
27 See Long Island Jeep, supra.
General Electric and American Meat Packing, relied on by the
judge, are clearly distinguishable from this case. In both cases, the
employers not only displayed a ‘‘take-it-or-leave-it’’ attitude, which
we find absent here, but also engaged in numerous other actions, in-
cluding other violations of Sec. 8(a)(5), which further indicated bad
faith.
Because we find that the Respondent acted lawfully on July 1, we
need not decide whether the judge correctly found that the Respond-
ent effectively remedied its conduct on that occasion.
28 The Union does not dispute the judge’s finding that the strikers
were permanently replaced.
1 All dates are in 1991 unless otherwise noted.
The foregoing, we find, is not the account of a
course of bad-faith bargaining. We find no suggestion
in this record that the Respondent entered into negotia-
tions ‘‘with a predetermined resolve not to budge from
an initial position.’’ The credited evidence establishes
that the Respondent, honestly believing that the Union
wanted its best offer on July 1, presented the most at-
tractive proposal it was prepared to offer at that time,
in the hope of reaching a contract and avoiding a
strike. We have already observed that it is not per se
unlawful for a party to make its best offer first, and
it is hardly inconsistent with good-faith bargaining for
a party to make its best offer at the request of the
other party. Having been asked for, and having made,
its best offer, the Respondent cannot be seriously fault-
ed for its temporary unwillingness to modify its pro-
posal, at least until the employees had voted on it.
Even if Brockley did tell the union negotiators to
‘‘take it or leave it,’’ that statement, in the context of
the Union’s request for the Respondent’s best offer
which was to be voted on the next day, does not sug-
gest an attitude on the part of the Respondent of the
sort condemned in General Electric and other cases. In
this context, such a statement differs little, if at all,
from an announcement that the offer on the table is the
Respondent’s best, as the Union had requested. There
is no evidence that the Respondent was simply ‘‘going
through the motions’’ of bargaining or lacked a ‘‘seri-
ous intent to adjust differences and reach an acceptable
common ground.’’ There was no obdurate refusal here
to consider any alternatives to the Respondent’s initial
proposal.26 Indeed, after that offer was rejected, the
Respondent moved promptly to resume bargaining, and
thereafter modified its proposals in a further attempt to
reach agreement.
In sum, we find that the Respondent’s actions and
statements on July 1, viewed in the context of the rest
of the negotiations and in light of the fact that the re-
mainder of its conduct was neither unlawful nor other-
wise indicative of bad faith, were in accord with the
Respondent’s duty to bargain in good faith.27
Because we have found that the Respondent’s con-
duct on July 1 was not unlawful, and because we agree
with the judge that the Respondent’s bargaining con-
duct was otherwise lawful, we adopt his finding that
the strike was an economic strike and not an unfair
labor practice strike from its inception. We also adopt
the judge’s finding that the Respondent lawfully imple-
mented its July 22 offer after bargaining in good faith
to impasse; thus, the strike was not converted to an un-
fair labor practice strike because of the implementation
of that offer. Finally, we adopt his finding that the Re-
spondent did not violate Section 8(a)(3) by failing to
reinstate the strikers on request, because they were
economic strikers who had been permanently re-
placed.28 We therefore shall dismiss the complaint.
ORDER
The complaint is dismissed.
Lyn R. Buckley, Esq., for the General Counsel.
Richard Thesing, Esq. and David F. Byrnes, Esq., of San
Francisco, California, for the Respondent.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges and amended charges filed by Lodge 31, Inter-
national Association of Machinists and Aerospace Workers,
AFL–CIO (the Union) on July 12 and 29 and August 12 and
15, 1991,1 the Regional Director for Region 17 issued a
complaint and notice of hearing on November 15, alleging
inter alia, that Industrial Electric Reels, Inc. (Respondent or
Company) engaged in certain activity in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act (the
Act). Another amended charge was filed by the Union on
December 18. Respondent filed timely answer to the com-
plaint, wherein it admits, inter alia, the jurisdictional allega-
tions of the complaint and denies it committed any unfair
labor practice.
Hearing was held in this matter in Omaha, Nebraska, on
March 25–27 and 30–31 and April 1, 1992. Briefs were re-
ceived from the parties on or about May 29, 1992. Based on
the entire record, including my observation of the demeanor
of the witnesses and after consideration of the briefs, I make
the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, a corporation, with an office and place of
business in Omaha, Nebraska, is engaged in the manufacture
and sale of electrical reels and related products. It admits the
jurisdictional allegations of the complaint and I find that it
is now and has been at all times material to this proceeding
an employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 According to Brockley, the Company is considering bringing this
production to Omaha if costs can be contained.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. An Overview of the Conflict and Involved Issues
Respondent is a manufacturing company which produces
electrical reels and is owned by a French company,
Delechaux. Since about 1970, the Respondent has recognized
the Union as the exclusive collective-bargaining representa-
tive of its employees in the following unit:
All employees in the classifications of tool, die, jig, and
fixture maker; journeyman machinist; apprentice ma-
chinist; journeyman welder; material control; drill press
operators including drill press set-up operator; drill
press operator, drill press production operator; utility
assembler; material handler; production worker; painter;
utility painter and shipping and receiving clerk em-
ployed by Respondent at its facility located in Omaha,
Nebraska, but excluding office clerical employees,
guards and supervisors as defined in the Act.
The parties have entered into a series of collective-bar-
gaining agreements, the last of which was effective by its
terms for the period from July 5, 1988, through July 4, 1991.
The parties began negotiations for a successor agreement in
May.
Prior to negotiations for a successor agreement to the one
expiring July 4, the Company and the Union had developed
goals which they were intent on achieving at the bargaining
table. Respondent had brought in Don Brockley as president
in 1986. He initiated a study of the Company, seeking to ex-
pand its sales. According to Brockley the study revealed that
this could be accomplished by expanding the Company’s dis-
tribution network, expanding its product line to include lower
end products, and cutting the cost and price of the products
it presently made. To achieve this goal, Respondent dramati-
cally expanded its number of distributors, created a low-end
product line made in Taiwan,2 and achieved cost reductions
through establishing a two-tier wage system at its Omaha fa-
cility. A wage study made in 1985–1986 indicated to
Brockley that his unit employees were making about 40 per-
cent more than employees of area competitors and that the
Company’s prices were about 10 to 15 percent above those
of its competitors.
Therefore, in 1986, during the middle of a collective-bar-
gaining agreement, the Company and Union negotiated a sec-
ond, lower tier of wages for new hires (Tier II). For several
years prior to this, the Company had ceased hiring new em-
ployees or replacing employees who left the Company. It had
instead increasingly utilized subcontractors to control labor
costs. Brockley testified that this process could not continue
indefinitely and the lower tier of wages would allow the
Company to hire new employees and at the same time make
its products more competitive from a cost standpoint. At no
time has Respondent asked that existing Tier I employees
take a wage cut.
The lower wage for new hires did in fact result in in-
creased sales and substantial hiring of new employees. When
the lower tier of wages went into effect the Company had
29 employees in the unit. At the time of the strike involved
herein, there were 46 unit employees, 29 of which were Tier
II employees, and only 17 were Tier I employees.
Brockley testified that though the changes he instituted be-
ginning in 1986 significantly increased sales for the Com-
pany, sales growth flattened toward the end of 1989 and the
beginning of 1990. Therefore, he again sought ways to make
the Company’s product more competitive from a pricing
standpoint. He determined to achieve this more competitive
position by holding down wage and health insurance costs,
modernizing the plant’s equipment and realizing additional
flexibility in the use of employees in the manufacturing proc-
ess.
With respect to wages, Respondent proposed to offer little
or no increases in the wages of Tier I employees, who it be-
lieved were still substantially overpaid based on area salaries
and its ability to hire new employees at the Tier II wages,
and to make more significant increases in the Tier II salaries.
To differing degrees, both the Union and the Company want-
ed to ultimately merge the two tiers of employees though
their methods to accomplish this end differed dramatically.
The Company acknowledged that having two tiers caused
morale problems with the lower paid employees. The Union
understandably wanted all the employees to make the higher
Tier I wages. The Company’s method for merging the Tiers
was to sharply limit growth in the Tier I wages while giving
significant raises to the Tier II employees over a period of
time until the two tiers were merged. The Union proposed
giving significant raises to the Tier I employees, and even
more significant raises to the Tier II employees, so that when
the two tiers were merged the employees would be at a much
higher wage level than that envisioned by the Company. The
Union’s wage proposal would have cost the Company about
$450,000 whereas the Company’s proposal cost about
$250,000 in additional labor costs over the life of the con-
tract.
With respect to the other major component of labor costs,
health insurance, Respondent had experienced significant in-
creases in the cost of this benefit in the 3 years since the
last contract was negotiated. To gain control over the growth
of this cost, Respondent proposed substantially increasing the
employees’ contribution toward insurance premiums and in-
creasing the level of deductibles. The Union wanted certain
additional benefits added to the existing health insurance
plan at no additional cost to the employees.
The Respondent frequently had the need to have its em-
ployees work overtime to meet fluctuating customer demand.
It had experienced strong resistance to overtime work from
its employees, even though it had instituted a bonus system
to encourage willingness to work overtime. To solve this
problem, Respondent wanted a mandatory overtime provi-
sion, a provision which the Union opposed. The Company
initially proposed 10 hours of mandatory overtime, a position
which softened to 5 hours during negotiations. The Union
initially offered no mandatory overtime, but softened that po-
sition to offer 4 hours of mandatory overtime during negotia-
tions. However the Union wanted the employees to have the
right to pick which day the overtime was worked, and the
right to work 1 hour of overtime before a shift and 1 hour
1075INDUSTRIAL ELECTRIC REELS
after a shift. This latter requirement did not suit the Com-
pany because it created problems in scheduling and super-
vising the overtime.
The Company wanted more flexibility in subcontracting,
especially on some smaller jobs which could not be produced
efficiently in the plant. Under the expiring contract, and the
parties interpretation of that contract, this could only be done
at a substantial penalty in the event that some employees
were on layoff status or not working in their skill trade, a
condition which existed at the plant. The Union opposed any
change in subcontracting provisions. With respect to this
issue, and others which could affect job security, the Union
feared that Respondent was seeking ways to eliminate jobs
and/or transfer work to another, nonunion, plant owned by
Respondent’s French corporate parent. It therefore opposed
these changes vigorously, and as a further preventative meas-
ure, proposed that a severance pay provision be instituted,
initially proposing that a permanently laid-off employee be
given a week’s pay for each year of employment.
On the issue of so-called technological change, the parties
also took divergent stances. The Company had not intro-
duced any new equipment into the plant for years, at least
in part because of contract provisions which would not there-
after allow Respondent to lay off employees if the layoff was
caused by the introduction of the new equipment. Although
the contract provisions in this regard are ambiguous, the par-
ties had evidently interpreted them in a very restrictive man-
ner. Respondent gave an example of the problems this
caused citing an incident where it terminated some proba-
tionary employees on the last day of their probation because
it was considering bringing in a new CNC lathe. At the time
the Company was in a peak production mode and these em-
ployees were needed. When demand slackened however, they
would likely be candidates for layoff. However, because of
the parties interpretation of their contract, if these employees
were allowed to complete their probation and the lathe were
brought in, the Respondent would not thereafter be allowed
to lay them off as they could contend that they were layed
off because of the new machinery. The Company decided it
wanted the new equipment so it terminated the employment
of the involved employees so that it would not thereafter
have to permanently retain them. This situation did not sit
well with the Union.
The Company wanted to bring in more new equipment as
the equipment in the plant was evidently very outdated and
more modern equipment was necessary if the Company
wanted to remain competitive. The Union opposed this pro-
posed change as it feared that new equipment might result
in layoffs of employees. The Company’s position was that
the new equipment would create, not cut, jobs in the plant.
The Company and the Union also differed on changes in
the existing contract which would allow certain items pre-
viously purchased from outside suppliers to be made in
house. This matter was referred to as the so-called fab shop
issue. The Company wanted to use higher skilled employees
to set up the work, and utilize its lowest paid unit employees
to perform this work. The Union wanted the higher paid,
more skilled classifications to be used for both setup and
production. In its contract proposal on this issue, Respondent
proposed the work be set up by drill press operator and
thereafter the production run accomplished by a production
worker. The Union wanted the work done by welders, the
highest paid employees.
In the negotiations in June, the Company told the Union
that the equipment it wanted to bring in with respect to the
fab shop consisted of punch presses, brake presses, and
shears. With respect to equipment affected by the techno-
logical change issue, the Company wanted to bring in a CNC
lathe, punch presses, brake presses, shears, lathes, and mills.
The Company also wanted to bring in a NCNY which would
be affected by the production processes language of the con-
tract.
Given these agendas, and a fair amount of mutual distrust,
the parties began negotiations in late May 1991 for a suc-
cessor agreement to the one expiring July 4. According to
the complaint, the Respondent refused to discuss economic
proposals until the negotiation session of July 1, when it pre-
sented the Union with its first and final offer with respect
to economic issues. The next day the Union rejected the Em-
ployer’s offer, and again, according to the complaint, the
Employer refused to meet again before the July 4 expiration
date of the existing contract. On July 8, the first working day
after the contract’s expiration, the Union began a strike
against Respondent, which the complaint alleges was an un-
fair labor practice strike caused by Respondent’s actions on
July 1 and its refusal thereafter to meet and bargain in good
faith prior to the expiration of the existing contract.
The Respondent contends that the manner in which nego-
tiations were conducted up to and including the meeting on
July 1, including the manner in which the economic offer
was made, was a matter of mutual agreement between it and
the Union. It further contends that its economic offer was ne-
gotiable on July 1, but the Union choose not to negotiate
over it. After the Union voted on July 2 not to accept the
contract offered by Respondent, Respondent offered on July
3 to meet and negotiate further, an offer which the Union did
not accept until after the strike began on July 8.
After July 8, the parties met in several bargaining sessions.
It is alleged that in a bargaining session held July 16, the Re-
spondent refused to discuss economic issues until agreement
was first reached on all outstanding noneconomic issues,
thereby prolonging the strike. The complaint also alleges that
on July 24, Respondent declared impasse and thereafter, on
July 29, implemented its final offer. The complaint alleges
that the declaration of impasse was premature and the unilat-
eral implementation was unlawful and prolonged the unfair
labor practice strike. Respondent contends that it was willing
to discuss economics, and in fact made a concessionary eco-
nomic offer in the meeting of July 16. It further contends
that the parties were at impasse on July 24 and that it com-
municated that position to the Union both orally and in writ-
ing. It took the Union’s expressed lack of room for further
movement and agreement to cancel the only remaining
scheduled meeting to be agreement that the parties were at
impasse. Beginning on or about July 29, the Respondent per-
manently replaced the striking employees and implemented
its last offer to the Union. On or about August 7, the Union
made what the complaint characterizes as an unconditional
offer to return to work. Thereafter Respondent offered rein-
statement to all but five of the striking employees, maintain-
ing that it had no duty to make such an offer to these five
because they engaged in strike misconduct. The strikers did
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Hereinafter, Gary Miller will be referred to as Miller and Loni
Miller will be referred to as Loni Miller.
not return to work pursuant to Respondent’s offer and remain
on strike to this day.
Though I believe the foregoing recitation fairly sets out the
issues framed by the complaint, I will set out the specific
complaint allegations as they are very specific and are very
fact dependent. I will also set forth the substance of the
charges on which the complaint is based as the manner in
which charges were filed indicates problems with this case
from the outset. The first charge, filed July 12, alleges that
Respondent, by its president, Don Brockley, refused to bar-
gain in good faith by since on or about July 1, by using tac-
tics that could cause an immediate impasse with his ‘‘take
it or leave it’’ first and final offer. This charge was amended
on July 29, to additionally complain that Respondent since
on or about July 18, violated the Act by arbitrarily increasing
the cost to the employees of health insurance. The allegation
does not appear in the complaint. A third amended charge
was filed on August 15. This charge repeats the original alle-
gation, drops the allegation about health insurance, and adds
an allegation that the Respondent since August 7 has refused
to reinstate unfair labor practice strikers after the Union
made an unconditional offer to return to work. It also alleges
that the Respondent has bargained in bad faith since on or
about July 2.
The complaint, which issued on November 15, alleges:
(1) At various times material herein, in or about the
months of May, June, July, and August 1991, Respondent
met for the purpose of engaging in negotiations with respect
to wages, hours, and other terms and conditions of employ-
ment of employees in the described unit.
(2) During the time period described above, the Respond-
ent engaged in the following acts and conduct:
(a) In all of the negotiation meetings held before July 1,
1991, Respondent refused to discuss economic issues and in-
sisted that only noneconomic issues be discussed by the par-
ties.
(b) Or or about July 1, 1991, Respondent first presented
its economic proposal to the Union and took the position that
this first proposal on economics was its last, best offer.
(c) On or about July 1, 1991, after presenting its last, best
economic offer to the Union, Respondent insisted on the pro-
posal and refused to bargain further on the Union’s counter-
proposal on the economic issues.
(d) On or about July 1, 1991, Respondent refused to meet
with the Union again before the existing contract expired on
July 4, 1991.
(e) On or about July 16, 1991, Respondent took the posi-
tion that all noneconomic items had to be agreed on before
it would discuss economic issues further.
(f) On or about July 24, 1991, Respondent declared im-
passe in bargaining at a time when Respondent and the
Union had not reached impasse.
(g) On or about July 29, 1991, Respondent unilaterally im-
plemented its offer with regard to returning strikers at a time
when Respondent and the Union had not reached impasse in
bargaining.
(h) Since on or about July 8, 1991, certain employees of
Respondent represented by the Union and employed at Re-
spondent’s facility, ceased work concertedly and engaged in
a strike.
(i) On or about July 29, 1991, Respondent permanently re-
placed employees who engaged in the strike.
(j) On or about August 7, 1991, the Union made an uncon-
ditional offer to return to their former positions of employ-
ment on behalf of the employees who engaged in the strike.
(k) On or about August 7, Respondent failed and refused
to reinstate the employees referred to above, and continues
to fail and refuse to reinstate them.
The complaint concludes that Respondent’s alleged con-
duct violates Section 8(a)(1), (3), and (5) of the Act, and that
the strike was caused by Respondent’s unfair labor practices
described in paragraphs (2)(a) though (d) above and was pro-
longed by Respondent’s unfair labor practices described in
paragraphs (2)(e) through (g) above. On December 15, the
Union filed another amended charge in this proceeding
which repeats the original charge, and adds that Respondent
has since on or about August 7 and continuing to date, re-
fused to reinstate unfair labor practice strikers who made an
unconditional offer to return to work, and further, since on
or about July 29, unilaterally implemented their offer without
first bargaining and reaching an impasse. This late amend-
ment was obviously filed because no earlier charge supported
the complaint allegations about unlawful implementation of
the Respondent’s final offer and the failure to reach impasse.
The Union’s allegations of bad-faith bargaining by Respond-
ent since July 2, was withdrawn, and was not incorporated
in the complaint.
I do not believe the facts or the law support any of the
complaint allegations of unfair labor practices other than the
allegation that Respondent violated the Act by the manner in
which it presented its economic offer on July 1. As will be
shown hereinafter, the Region relied on certain statements of
fact given it by the Union to issue the complaint. At the
hearing, it was demonstrated that many of these statements
were not correct, thus leaving the complaint factually unsup-
ported in significant areas.
All of the acts alleged by the complaint to have been vio-
lations of the Act fall in chronological order, and thus will
be dealt with in that fashion.
B. The Bargaining Process Leading to Respondent’s
Alleged ‘‘Take it or Leave it’’ Economic Offer
of July 1
1. Did Respondent violate the Act as alleged by
refusing to discuss economic issues and insisting that
only noneconomic issues be discussed prior to July 1?
In negotiations, the Union was represented by Business
Agent Gary Miller. Miller has been responsible for rep-
resenting the involved bargaining unit for at least 9 years and
participated in the negotiations which led to the expiring con-
tract. The other members of the Union’s bargaining com-
mittee were employees James Mueller, Sebastian (Subby)
D’Agosta, and Mike Campos. The Company was represented
by its President Don Brockley and management members
Ken Hamlin and Tony Bailey. The Company’s financial offi-
cer Loni Miller3 participated in some of the negotiations.
The involved negotiations were in many ways similar to
the 1988 negotiations which resulted in the contract which
expired on July 4, 1991. A description of these negotiations
is given because I believe that what happened in them bears
1077INDUSTRIAL ELECTRIC REELS
on the parties motivation and actions in the 1991 negotia-
tions. In 1988, the parties first met with everyone on both
bargaining committees, including Brockley, present. They ex-
changed proposals and agreed that noneconomic items would
be discussed before economic items. Brockley did not attend
the sessions wherein noneconomic items were negotiated.
After the first five or six sessions, held at the union hall, it
was decided to use a mediator and move the sessions to a
hotel. There were two sessions held with the mediator before
Brockley came back to negotiations. On July 1, 1988, Re-
spondent made its first economic offer. The Union took a
vote on the proposal and turned it down. Miller then called
Brockley and asked for a contract extension, which he grant-
ed. The parties then met on July 6 and reached a tentative
agreement, which was ratified by a nearly tie vote the next
day. During the week preceding July 6, 1988, Miller had
several conversations with Brockley in which he said that he
was trying to avoid a strike. The wage increases in the 1988–
1991 contract called for percentage increases for Tier I of
zero, 1, and 2 percent for the first, second, and third years
of the contract. For Tier II employees, the increases were 8,
6, and 5 percent. The other major issues in the 1988 negotia-
tions were insurance, wages, mandatory overtime, and sub-
contracting. As noted earlier, these issues, with the addition
of technological change, were the main issues in the 1991
negotiations.
The first 1991 bargaining session was held at the union
hall on May 29, with the Union represented by Miller,
Campos, Mueller, and D’Agosta. The Company was rep-
resented by Brockley, Hamlin, and Bailey. At this meeting,
the parties exchanged proposals and set the groundwork for
future sessions. As in the 1988 negotiations, the parties
agreed to first bargain over noneconomic items and defer
economic proposals until later. It was agreed that Brockley
would not participate again in negotiations until the parties
were ready to discuss economics.
As the parties mutually agreed to discuss noneconomic
items first and defer until later the discussion of economic
items, I find that Respondent did not ‘‘refuse to discuss eco-
nomic issues and insist that only non-economic issues be dis-
cussed by the parties,’’ as alleged in the complaint, and that
no violation of the Act was committed in this regard.
In the meeting on May 29, the parties agreed to meet
every Tuesday and Thursday on a regular basis. It appears
that the parties agreed to meet on June 4, 6, 11–13, 18, 20,
25–26, and 28, and July 1–3. Although the contract was to
expire on July 4, July 4–7 were also potential meeting dates
prior to a strike because July 8 was the first workday after
July 4. The Union proposed a number of changes in the ex-
isting contract, the most significant of which included mov-
ing all Tier II employees to Tier I; an across-the-board 10-
percent wage increase for each year of the contract and
COLA; adding prescription drug plans, dental, and eyecare
plans to the health insurance package; increasing the Em-
ployer’s contribution to the pension fund; adding life insur-
ance and severance pay of 1 week per year of service; and
increasing pay for overtime with no provision for mandatory
overtime. During the course of negotiations, the Company
costed out this proposal and pointed out to the Union that
it would cost $447,000 in additional expense over the exist-
ing contract and would require a 6-percent price increase to
pay for it.
At the first meeting, Brockley gave an overview of what
the Respondent considered important issues from its view-
point. He mentioned the Respondent’s frustration with not
being able to purchase new equipment because of contract
restrictions, and that if the Company could add new equip-
ment, it would increase the total number of employees at the
plant. The Company proposed, as most pertinent, mandatory
overtime, changes in employee classifications to allow fab
shop work to be performed by lower classification workers,
and changes to allow flexibility in bringing in new equip-
ment. The Company made no initial economic proposal con-
sistent with its agreement to discuss these matters at a later
date.
The parties met again on May 30 and went through pro-
posals in more detail. Some relatively minor matters were
tentatively agreed to.
At the next meeting, on June 6, the company representa-
tives took the position that each item proposed, beginning
with the first, must be resolved before negotiations could
begin on the next item. Miller objected to this procedure and
Company acquiesced. The company representatives also
identified a number of items considered economic and which
would be deferred until Brockley returned to negotiations.
These were deferred by mutual agreement. Union bargaining
committee member Mueller testified that he asked the Com-
pany for its justification for proposed changes in subcontract-
ing and technological changes provisions, and was not given
an answer. He testified that Miller repeated the question and
was told by Hamlin that the Company wanted the employees
to have less job security. I have difficulty accepting this tes-
timony, at least insofar as it implies that the Company was
offering no justification for its positions on the involved
issues. The issues of subcontracting and technological change
had been discussed on a number of occasions prior to nego-
tiations with the Union’s shop committee, on which both
Campos and Mueller served. On these occasions, the Com-
pany’s problems had been advanced and its reasons for relief
given. In addition, Brockley, at the outset of negotiations and
at virtually every other meeting in which he participated gave
a talk or speech wherein he expressed the Company’s goals
and why its proposals were necessary to achieve these goals.
I am not at all sure that the Union believed what they were
told and apparently feared that the Company harbored some
unstated ulterior motive for the proposed changes. However,
I cannot find from this testimony that the Company offered
no explanation or justification for its proposals.
The parties met again on June 7, where agreement was
reached on some proposals and some proposals were with-
drawn. The Company presented a written status report on ne-
gotiations to date.
The parties met on June 10 and again agreed tentatively
to some items and some further items were withdrawn. The
Company presented another written status report.
Meetings set for June 11 and 12 were canceled by the
Company because of suspected vandalism by employees.
This matter was put to rest and the parties met on June 13
and discussed proposals. According to Mueller, the parties
spent much of the time discussing the fab shop issue.
The next meeting was held on June 18 and the fab shop
issue was again discussed. The Union was upset because it
believed that the Company had proposed prior to negotia-
tions that if the fab shop work were brought in, it would be
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
set up by welders and the work performed by drill press op-
erators. In negotiations, the Company had changed its posi-
tion to one where it wanted drill press operators to do the
set up and less-skilled production workers to do production.
This of course would cost the Company less money and con-
versely deprive the more skilled and highly paid employees
some new work. Miller testified that the parties were a long
way apart at this point.
The parties met again on June 20. There was some
progress at this meeting and there were several tentative
agreements and withdrawals made. At this point, economic
issues aside, the toughest issues were classifications, wherein
the Company wanted to lump a number of classifications
into the production worker classification, the fab shop, man-
datory overtime and job-security issues, including subcon-
tracting and technological change.
The parties met again on June 25, with the Union sug-
gesting that a federal mediator be called in to help. The com-
pany negotiators at first objected, but then agreed. They con-
tinued to negotiate. Miller indicated that he proposed a con-
tract extension at this meeting and Hamlin did not agree.
Mueller testified that he had prepared a package proposal
dealing with several issues, including a proposal on certain
economic issues. According to Mueller, when he tried to
present it, Hamlin told him that economic issues had to wait
for Brockley who was in Europe and would not be back until
the following week.
At the meeting on June 27, the Company proposed to
grandfather existing employees with respect to the techno-
logical change and subcontracting or farm-out issues. This
did not satisfy the Union which still feared the Company
planned to move work to another plant. The Company took
the fab shop proposal out because of the union opposition.
On mandatory overtime, the Company dropped its initial pro-
posal of 10 hours of mandatory overtime to 5. The Union
counterproposed 2-1/2 hours of mandatory overtime, with the
right to have 1 hour before a shift and 1 hour after, as well
as the right to pick the days overtime was worked. The Com-
pany objected to this as it would require the presence of a
supervisor all week just to supervise overtime. There were
also situations where the Company needed employees to
work overtime together, something it could not require under
the Union’s proposal. Thus, by the end of the meeting of
June 27, the parties had not reached agreement on techno-
logical changes, subcontracting, some job classifications, or
severance pay.
At the meeting of June 25, the Union had asked if the
contract could be extended as the parties were still far apart
and economic issues had not been addressed. In response, at
the meeting held on June 27, Hamlin responded that the mo-
rale at the plant was bad and the Company wanted to get ne-
gotiations over with and a have a contract before the expira-
tion date. Miller then asked when Brockley would return and
was told he would return by Friday, June 28. To this point,
there is little dispute in the testimony. However, the evidence
offered by union witnesses and company witnesses on the
events which next transpired is very different. Hamlin sug-
gested meeting on June 29, but Miller indicated he would not
be available, but could meet on July 1, 2, and 3. Miller testi-
fied that he asked when Brockley would be available and
was told that he would meet on July 1, but could not be at
meetings on July 2 and 3. Miller did not believe that
Brockley could attend a meeting before July 1 as he was in
Europe. Brockley, however, did return on June 28 and had
told his bargaining team to be prepared to meet over the
weekend. According to Bailey, Miller then said, ‘‘Fine, you
guys are going to have to give us your best offer on Monday
so we can take a vote then.’’ Mueller and Miller testified
that this was not said.
Although the union representatives may not have intended
it, I believe that both Hamlin and Bailey honestly believed
that the Union had asked for the Company’s best offer to be
presented on July 1. No other meetings were set and evi-
dently a ratification vote meeting was scheduled for July 2.
This position was communicated to Brockley in Europe. Ev-
erything the Company did next points to the fact that it held
the belief that their July 1 proposal would be voted on on
July 2. However, whether Company correctly or incorrectly
understood that the Union wanted its best offer on July 1,
its actions on that date would still have violated the Act in
my opinion.
2. Did the Respondent violate the Act by its actions at
the July 1 negotiating meeting?
Prior to the July 1 meeting, the Company’s negotiation
team had met with Brockley and begun preparation of an
economic proposal. On June 19, Brockley met with Bailey,
Hamlin, and his chief financial officer, Loni Miller, prior to
leaving for Europe to discuss the status of negotiations and
to develop an economic offer. Brockley was worried about
the possibility of a strike, fearing the Company could not
sustain one. Because of the long experience of many of its
employees, blueprints for the development of production
items were not completely finished, and the employees were
free to complete work from the incomplete prints. Without
the experienced employees, Brockley did not believe work
could be completed. With respect to his aims on economics,
based on his experience in hiring Tier II workers, Brockley
believed that Tier I employees were being overpaid by at
least 30 percent. Loni Miller developed several wage and in-
surance proposals, costing each out. His goal was to produce
a package that would have a chance of ratification, hold
down or cut back Tier I wages, pass on some of the in-
creased insurance costs to the employees, and meet the finan-
cial performance guidelines set for the Company by its
French owners. At some point, he decided that the Company
could pay about $250,000 in additional wages over the life
of the contract and meet these guidelines. Although his early
proposals were discussed, none of them were selected by
July 1.
In a morning meeting on July 1 to prepare the wage and
insurance proposal, Loni Miller presented more proposals.
Brockley felt that Tier I was not going to be happy with any
company proposal, so in order to have a chance to have a
contract ratified, he aimed the proposal at Tier II employees,
who constituted the majority of employees. Although Miller
proposed one scenario in which Tier II employees would get
substantial raises, but Tier I would be dropped back to the
Tier II level, Brockley dismissed it because it would have in-
jured the Tier I employees who had allowed him to introduce
Tier II and Brockley felt it might cause a strike. Using his
other proposal as a starting point, the Company’s bargaining
team structured its proposal to appeal to the Tier II employ-
ees who constituted about 60 percent of the unit employees.
1079INDUSTRIAL ELECTRIC REELS
4 Witnesses from both sides of this dispute described a number of
conversations they had with the mediator and responses he reported
to them from the other side. I am not relying on any of these de-
scriptions in any way. For the most part they are totally self-serving
and totally incapable of being tested as the mediator did not testify.
Furthermore, even if they were accurately described, one does not
really know if the mediator accurately passed on to one of the par-
ties what the other side asked, or accurately reported what he was
told.
It felt it could sell the plan to them and get a contract. It
felt that Tier I employees would vote against the plan under
any wage proposal because of the increase health insurance
costs it was imposing on the employees. Respondent believed
that the proposal had a good chance of ratification because
its wage offer to the Tier II employees was so appealing.
Loni Miller testified that the July 1 meeting began with
Brockley giving a short talk on the condition of the Com-
pany and where it was trying to go. He stressed that the
Company had to remain competitive and be able to make the
changes that its competitors were making. When he finished,
the Company presented its economic proposal. Loni Miller
explained the proposal both with respect to the wage pro-
posals and the health insurance. He also explained the impor-
tance of the health insurance proposals, citing the rapidly ris-
ing costs in this area.
The Company’s economic proposal for Tier I employees
provided for no increase in the first year, and a 1-percent in-
crease in each of the next 2 years of the contract. For Tier
II employees, it proposed a 10-percent increase in the first
year, and 3-percent increases in each of the next 2 years. It
included a proposal on increasing the pension contribution.
The health insurance proposal called for doubling the deduct-
ible from $100 per person or $200 per family to $200 per
person or $400 per family. It proposed that employees pay
20 percent of the first $2500 of covered medical expense in-
stead of the 100-percent coverage presently provided. It also
called for an increase in monthly employee premium con-
tributions from the current $10 per person or $20 per family
to $20 per person or $40 per family. Its noneconomic pro-
posal, which was a draft of the Company’s last language pro-
posal reflecting all tentative agreements and withdrawals was
submitted separately in a packet entitled ‘‘final draft.’’
There was a discussion of the proposal, and according to
company witnesses, other outstanding issues. The Union then
took a caucus where it prepared a counterproposal. This
counterproposal, inter alia, called for increases in the Tier I
wages 5 percent, 4 percent and 4 percent over the 3-year life
of the proposed contract. It also called for the phasing out
of Tier II over a 5-year period, significantly raising the wage
levels for both Tiers. The proposed increases amounted to
several dollars an hour for both Tiers. It proposed reaching
the Company’s position on insurance in stages over the life
of the contract.
The parties began discussing this proposal and it became
clear that it would not only merge Tier II with Tier I over
a 5-year period, but would also raise Tier I at the same time
by about 5 percent per year. Brockley indicated that the
Company was not interested in that proposal. At this point,
the description of the meeting varies, depending on whether
a company witness or a union witness was giving testimony.
Miller testified that he started explaining the counter-
proposal and Brockley asked to see it. Brockley looked at it,
commented that it merged Tier I and Tier II, and said that
he was not interested in the counterproposal, the Union had
his proposal, take it or leave it. Miller’s affidavit says
‘‘Brockley said this was his offer and indicated that we could
take it or leave it. I do not remember exactly what he said.’’
Mueller testified that Brockley said, ‘‘You have my proposal
and that’s it.’’ The Union then caucused and Miller asked the
mediator if the Union could prepare another counter-
proposal.4 The mediator said he would check with the Com-
pany and reported back that the Company said the Union had
its proposal, take it or leave it. Miller testified that he and
the mediator met with Brockley and he asked if there was
anything they could talk about, and Brockley said no. He
asked Brockley to put together a total written proposal to
present to the Union for a ratification vote the next day.
Brockley said he would do it. According to Miller, the union
committee then went to their caucus room where he asked
the mediator if there was anything they could do to continue
negotiating. The mediator came back and said the Company
had left. Miller testified that at this meeting there was no dis-
cussion of mandatory overtime, the fab shop, apprentices, se-
niority, the Union’s position on insurance or other issues. On
cross, he remembered that Brockley gave a talk to the com-
mittee on bringing the Company out of the 1950s and into
the 1990s. He remembers asking Brockley to give his best
offer so it could be voted on the next day. He said he may
have made the comment, ‘‘this [the proposal] sucks, we can
do better than this, there’s no way I’m going to tell the em-
ployees to vote for this, I’m going to tell the employees that
if they strike, they will get a better deal.’’ Miller believed
that Respondent had committed an unfair labor practice by
failing to negotiate over the economic proposal. This belief
was the reason for his being upset and part of the reason he
recommended the contract proposal be turned down and the
employees strike. The other part was his dislike of some of
the language in the contract proposal.
Miller testified that he had asked the Company if they
could let the employees have the proposal over the holidays
and take a vote after them. Brockley would not allow this
nor would he extend the contract. Miller said he expected the
contract to be extended because it was extended in the 1988
negotiations. It should be noted that in 1988, the contract
was not extended until after the initial vote was taken and
the proposed contract was rejected. On cross, Miller admitted
that he did not make a request for contract extension after
July 1.
Loni Miller testified that after Brockley rejected the
Union’s counterproposal, the parties then discussed some of
the other outstanding issues including subcontracting, over-
time, and technological changes. The meeting became heated
and the mediator suggested the parties break into different
rooms. While the Union caucused, Brockley suggested that
Loni Miller determine what would happen to costs if the pro-
posed percentage increases were changed around.
The Union returned after about a half hour to an hour, and
Brockley gave a speech on the importance of the Company’s
proposals. Miller said for the Company to give him its best
offer so the Union could vote on it. Brockley replied that the
Company move the figures around a bit, taking money from
Tier II, and putting it into Tier I if it would help the contract
be ratified. However, if merging Tier II with Tier I is in-
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I do not find that Respondent cut off the Union’s presentation
of its counterproposal. The Company’s witnesses notes of this meet-
ing reflect that all economic portions of the counterproposal were at
least mentioned, including a proposal for life insurance, prescription
drug card, and health insurance including deductibles and contribu-
tions. Union committee member Mueller admitted on cross that he
could not remember when the union presentation was ‘‘cut off,’’ but
that their insurance proposal may have been discussed. The meeting
did become heated when the Company refused to consider the merg-
ing of Tier II with Tier I, and as this was the most important ele-
ment of the Union’s counterproposal the Union’s witnesses memory
of discussion of the other elements of the proposal may be under-
standably weak, given the absence of notes.
6 Although this unwillingness to move may well have been caused
by Respondent’s mistaken belief that the Union wanted its best offer
on July 1, a conversation between Mueller and Bailey the following
day indicates that negotiation over the economic proposals did not
take place. On July 2, Bailey approached Mueller at the plant and
asked Mueller if he thought the employees were going to strike.
Mueller replied that he did not know, but that a vote would be taken
that afternoon. Mueller then asked Bailey why Brockley had handled
negotiations in the manner he did on July 1. Bailey replied that he
did not see much negotiation going on.
volved, then the parties were far apart. He indicated that
other than some moving of the figures between Tiers, the
Union had the Company’s best offer. Miller told Brockley
that he thought the proposal sucked and would not rec-
ommend it to the employees. According to Loni Miller, Gary
Miller also said that he was going to tell the employees that
if they went on strike, they could do better. At that point the
Union left.
According to Brockley, in the July 1 meeting with the
Union, after he had turned down the Union’s counteroffer,
the parties discussed overtime, a premium for training, health
insurance, including the Union’s proposal for a prescription
card, and severance pay. The Union made a complete presen-
tation of its proposal. At the end of this discussion, Gary
Miller asked Brockley for his best offer and Brockley indi-
cated that he had it, though he could move the percentages
around if it would get a favorable vote. The Union then left
the negotiations to caucus. They came back a little later and
Brockley made a presentation about why all the proposals it
made were necessary. Miller got frustrated and told Brockley
that his offer sucked, and that he was going to recommend
a strike.
I do not believe it necessary to decide which version of
this meeting is correct, or which portions of the testimony
of each witness is the most credible on this point. Regardless
of which version of this meeting one accepts, it is clear that
Respondent was not willing to really negotiate over its eco-
nomic proposal at this time.5 It had purposely prepared a
proposal which would appeal to Tier II employees, con-
ceding that nothing it was willing to offer would likely ap-
peal to Tier I employees. According to the company wit-
nesses, it offered only to ‘‘fudge’’ the percentages between
Tiers to achieve ratification. It seems clear to me and it must
have been clear to the Union that the Company was unwill-
ing to make any significant change in its economic proposal
at the July 1 meeting. Whether Brockley used take it or leave
it language or not, that was the clear import of his actions.
I do believe that the meeting ended with Miller frustrated,
telling the Company that their offer ‘‘sucked,’’ and that he
was going to recommend that it be rejected. Whether other,
noneconomic issues were discussed briefly or not at all, as
indicated by union witnesses, or more fully, as indicated by
company witnesses is not really relevant. It was the Com-
pany’s forcing of the economic package to a vote without
significant negotiation that matters in the context of the com-
plaint. I believe that the Company violated the Act by the
manner in which it presented its economic offer and refused
to seriously negotiate over it. I make this finding even
though I believe that by making the offer in the manner it
did Respondent was attempting to reach a contract, a position
not normally consistent with a finding of failure to bargain
in good faith. It is my belief that though Respondent did
want a contract, it was attempting to circumvent the bar-
gaining process to get one. That I believe violates the Act.
General Electric Co., 150 NLRB 192 (1964), American Meat
Packing Corp., 301 NLRB 773 (1991).
Respondent took a calculated risk in its presentation, based
on its assesment of how a vote might go, taking into consid-
eration what had happended at the previous negotiations in
1988. The previous contract had been ratified on a very close
vote and so it had some reason to believe that it might
achieve ratification of its July 1 proposal. If it did not, then
even though it may have committed an unfair labor practice,
it still had time to resume negotiations and try to get a con-
tract by further bargaining. However, it cannot avoid at least
the initial consequences of its actions. It did, in the context
of the July 1 meeting, present its ‘‘first, best and final
offer,’’ and forced the Union to take it to a vote without af-
fording any real bargaining over the offer.
Although I have found that Respondent’s method of pre-
senting its economic offer violates the Act, I feel compelled
to discuss briefly the substance of the parties’ economic pro-
posals, as the General Counsel on brief takes an approach
which seems to assume that there is something very wrong
with the Respondent’s economic proposal, and something in-
herently right about the Union’s July 1 counterproposal. At
least within the context in which the Board has looked at the
substantive content of proposals to determine whether they
are made in good faith or not, this assumption is not correct.
If anything, the Union’s insistence on the merger of the two
tiers, at a much higher Tier I wage rate, given the Com-
pany’s immediate past history, appears to be more unreason-
able to the Company than the Company’s July 1 offer to the
employees. The Company had negotiated the Tier II wage
level in 1986 and retained it with little increase in the Tier
I wages in the 1988 negotiations. Brockley had made it clear
that he considered the Tier II wages one of the keys to the
Company’s continued success. Therefore, it is certainly rea-
sonable that he would not seriously entertain a proposal
which would undo what he had gained in the earlier negotia-
tions and set back his goals for the Company. If that was not
clear to the Union before July 1, it should have been there-
after. Indeed, in subsequent negotiations, the notion of merg-
ing the tiers was dropped and the parties seriously discussed
levels of percentage wage increases for both tiers which
would not result in their merger. Thus, what I find to be un-
lawful about Respondent’s behavior at the July meeting is
not its refusal to engage in some protracted discussion of the
Union’s counterproposal, but an unwillingness to consider
any substantive change in its own proposal.6
1081INDUSTRIAL ELECTRIC REELS
At a subsequent bargaining session held July 11, Mueller testified
that Loni Miller said, ‘‘Gary [Miller], if this is the way the game
is going to be played, we’ll know better next time. We could have
come in low and worked up high, but we sat down and offered you
guys the best deal we could come up with. To continue negotiations
any further would have been a waste of our time and your time.’’
7 Bailey also testified that Miller called him at the plant on July
5 and in this conversation, Bailey again asked to meet before the
July 8 strike date. Miller denies speaking to Bailey on July 5. I be-
lieve that one or the other of the witnesses is incorrect about the date
of the phone call, but all agree that such a call took place, though
not on its contents.
8 There is no mention in this affidavit that Miller asked the medi-
ator to set up a meeting.
C. Was the Strike Which Began on July 8, Caused by
Respondent’s Unfair Labor Practices?
On July 2, Miller picked up the Respondent’s full proposal
from Loni Miller, who told him copies would be sent to the
Union a little later. About 4 p.m., the employees came to the
union hall for a ratification vote. There were 44 members
present. Miller went through each article of the contract and
took questions. He told the employees that there was no ne-
gotiation over the economic package, that it was given to the
committee on a take it or leave it basis. Miller testified that
he was asked what should be done, and he replied that he
was filing unfair labor practice charges against the Company
for what he believed was illegal action, and that his rec-
ommendation was to turn the contract down and go on strike.
Committee members Mueller and Campos also rec-
ommended that the contract not be ratified and that the em-
ployees go on strike. Mueller testified that he urged the
members to strike because the Union wasn’t given a fair
shake at the negotiation table, especially with the events of
the July 1 meeting, which he described to the membership.
He thought the proposed contract was a bad agreement, but
more important was the fact that Respondent would not ne-
gotiate with the bargaining committee. At the hearing he tes-
tified that some members asked why the contract could not
be extended and negotiations continued. He informed them
that management had refused to extend the contract. In an
affidavit given to the Board, he stated that members had
asked why they could not continue to work without a con-
tract while negotiations continued. His affidavit indicates he
replied that the Company would not make that option avail-
able to the Union. He disavowed his affidavit. I credit his
affidavit as being given more closely in time to the event
than his testimony. He agreed that it would have been pos-
sible to negotiate on July 3–7 without a contract extension
being necessary. He told the members before the strike vote
the Company would not meet to negotiate any other days
that week. The membership voted to reject the contract and
strike.
At this meeting, picket signs were already made and were
sitting on the stage at the front of the room. Six of the signs
said the Union was on strike against Respondent for unfair
labor practices. These signs had been previously used for an-
other strike. Three of the signs prepared specifically for the
involved strike said the strike was for wages, hours, and
working conditions.
Employees who attended this strike vote meeting testified
that a major reason they voted to strike was Brockley’s take
it or leave it action as described to them by Mueller and Mil-
ler.
Miller testified that after the meeting, he called the medi-
ator, told him the contract had been voted down and the
Union wanted to have another meeting and was ready to
meet. The mediator said he would inform the Company and
get back with Miller. On July 3, Miller received a letter from
the Respondent, hand delivered by Mueller. Mueller was
aware of the contents of the letter. In the letter Brockley stat-
ed that Respondent was ready to meet with the Union at the
Union’s convenience to continue good-faith negotiations. Ac-
cording to Miller, he then called Bailey and asked if they
could set up another meeting. Bailey testified that Miller
called him on July 3 and asked when the parties would meet.
Bailey told him the Company was prepared to negotiate
through the weekend to avoid a strike. According to Bailey,
Miller said no.
Miller testified on direct that the Union did not refuse to
meet that week. Mueller testified that he overheard Miller’s
end of this conversation and that Miller told Bailey that the
employees were on strike and for Bailey to let him know
when the Company was available to meet. He testified that
he did not hear Miller refuse to meet.7 I credit Bailey’s as-
sertion that Respondent offered to meet and negotiate over
the weekend and Miller said no. Loni Miller testified
credibly that he canceled weekend plans on Brockley’s direc-
tion to remain available for negotiations. However, it is the
serious inconsistency in Miller’s versions of the events be-
tween July 2 and 8 that weighs most heavily against believ-
ing him. There is no mention in Miller’s affidavit given to
the Board that he asked the mediator to set up a meeting in
response to the Company’s offer to meet. In fact, Miller’s af-
fidavit states that ‘‘Between July 3rd and July 11th, no one
from the Company asked me when we were going to get
back together. I had called Fraizer [the Federal mediator] and
told him we rejected the Company’s offer and Fraizer set up
the meeting for July 11.’’8 Rather incredibly, General Coun-
sel finds no inconsistency in this statement in Miller’s affi-
davit and the actual facts. I, however, find that Miller did not
tell the Board the truth in the investigatory stage of this pro-
ceeding, and I do not believe his testimony that he did not
refuse to meet before the strike began. On cross-examination,
Miller admitted Bailey called and asked when they were
going to get back together. He could not ‘‘recall’’ Bailey
asking if he were available to meet on the weekend and say-
ing no. (See Tr. 200–201.)
Neither Mueller nor Miller told any other members about
either Respondent’s letter offering to resume negotiations or
the Bailey conversation prior to July 8. Mueller testified that
he would have gone on strike even if the Company offered
to negotiate on every day from July 3 to the date of the
strike because of what happened on July 1. He later testified
that the strike could possibly been avoided by fruitful nego-
tiations prior to the strike.
Miller at least impliedly blames the mediator for not set-
ting up a meeting before the strike began. He does admit that
he took responsibility for setting up the meeting and I seri-
ously question whether he did in fact ask the mediator to set
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Bailey testified that he talked with Miller on the picket line on
both July 8 and 9, asking him when negotiations were going to re-
sume. Miller said he would set something up.
10 It should be remembered that when voting to take a strike, the
employees were told that Respondent refused to bargain further be-
fore the contract’s expiration, would not extend the contract, and
would not bargain in the absence of a contract. By July 3, the first
of the statements was no longer true, and Miller did not ask Re-
spondent if its position had changed on the other two, even though
it had extended the contract in similar circumstances in 1988.
up a meeting until after the strike began.9 I find no credible
evidence that he made any effort whatsoever to respond to
the Company’s request to meet and certainly did not inform
the bargaining unit members of the offer, though ostensibly
the refusal to negotiate over economics was the prime reason
for the strike. Moreover, he did not again ask for a contract
extension even though the Company had offered to continue
negotiations and in previous negotiations had extended the
contract when an initial proposal had been rejected by a vote
of the employees.
I do not find that under the circumstances presented that
the strike can be characterized as an unfair labor practice
strike from its inception. The Respondent took a risk when
it forced its proposal to a vote, perhaps not realizing that its
actions in this regard could anger the employees to such an
extent that even the Tier II employees would reject its pro-
posal. However, I do not believe that the Union has the lux-
ury of ignoring what I find to be a good-faith offer to resume
negotiations well before the strike began. This is especially
true since there had been a significant change in cir-
cumstances between July 1 and 3. On July 1, Respondent
may have hoped its proposal would be ratified by the em-
ployees. On July 3, it not only knew this was not the case,
but it faced with the immediate prospect of a strike. One
could assume that the strike vote itself had gotten the mes-
sage across to Respondent that its employees could not be
bullied and it had to negotiate. This seems to be the case in
light of Respondent’s immediate offer to resume negotia-
tions. Actually going on strike would accomplish nothing
more, at least with respect to the stated reason for calling the
strike an unfair labor practice strike.
If any bad faith is evident at this stage of events, I believe
it is on the part of the Union generally and Miller specifi-
cally. As noted above, Miller told the Board during the in-
vestigation stage of this controversy that ‘‘between July 3rd
and July 11th, no one from the Company asked me when we
were going to get back together.’’ This is patently untrue.
The complaint alleges that on or about July 1, the Company
refused to meet with the Union again before the existing con-
tract expired on July 4. This allegation, which is clearly
based on Miller’s evidence about the July 1 meeting and his
failure to tell the Board about Respondent’s subsequent of-
fers to meet on July 3, is obviously important. If the unfair
labor practice which triggered the strike vote was Respond-
ent’s unwillingness to bargain, then a good-faith change in
that position must be tested to determine whether Respondent
is in fact willing to negotiate in good faith.10
Miller, who was in control of the situation, chose not to
test Respondent’s offer. His refusal to do and his failure or
refusal to notify the membership of the offer and seek their
advice on how to proceed indicates to me that he wanted a
strike for economic reasons, not to redress the refusal to ne-
gotiate over economics on July 1. Even if Miller doubted
that Respondent would entertain serious bargaining over eco-
nomic issues, I believe he had the obligation of testing Re-
spondent’s good faith before he could take the membership
on a strike and accurately call it an unfair labor practice
strike. I find that the Respondent’s offer to meet and nego-
tiate prior to the strike date, coupled with the Union’s refusal
to meet and test Respondent’s good faith, effectively rem-
edies Respondent’s conduct on July 1. If Respondent had
been found to have violated the Act on July 1, and if Re-
spondent had not made the offer to immediately resume bar-
gaining, the Board would have ordered Respondent to cease
and desist from its unlawful actions and to begain bargaining
in good faith. Respondent voluntarily took these same reme-
dial steps. I find that the strike which began on July 8 was
an economic strike from its inception. K-B Resources, 294
NLRB 908 (1989); Whisper Soft Mills, 267 NLRB 813
(1983).
D. Did Respondent Unlawfully Refuse to Discuss
Economic Issues at a Bargaining Session held July 16,
and Thereafter Unlawfully Declare Impasse and
Unilaterally Implement Its Last Offer?
1. The meetings of July 11, 16, and 22
Although it is not mentioned in the complaint, the parties
resumed negotiations on July 11. If a refusal to discuss eco-
nomics at a subsequent meeting held on July 16 can be said
to have unlawfully prolonged the strike, then under any ra-
tional theory of the case what happened at the meeting of
July 11 in this regard is also relevant and material. Union
witnesses testified generally that Respondent was unwilling
to discuss economics at this meeting.
According to Miller on direct examination by General
Counsel, Hamlin called the employees a liability and a bunch
of wimps. The parties argued and then caucused. Miller testi-
fied that the Union drafted a proposal, but was told that the
Company wanted to settle noneconomic matters first and that
ended the meeting. On cross-examination, Miller admitted
this did not happen. Miller first could not remember that the
Company in this meeting said it was okay to discuss eco-
nomic items. However, his affidavit states that ‘‘They [Re-
spondent] said they could talk about economics, but there
was not much discussion about those items. They did not re-
peat that we had their final proposal on wages.’’ On cross,
Miller admitted there was discussion of the health insurance
proposal.
The Union’s economic proposal presented at this meeting
called for percentage increases of four, three and three for
Tier I, nine, eight and a half, and eight for Tier II, with an
additional 10 cents a quarter until Tier II matched Tier I, and
5 cents an hour additional for pensions. The Union increased
its proposed severance pay from prior proposals. The pro-
posal continued the Union’s position on mandatory overtime
and seniority. The Union proposed that the fab shop be put
back in the proposal with higher paid employees performing
set up and production, that subcontracting be eliminated and
for the Company to provide steel-toed shoes.
Bailey testified that at the July 11 meeting, he had costed
out the Union’s economic proposal and pointed out to the
Union at this meeting that it would increase the Company’s
existing costs by $447,000 and would require a 6-percent in-
1083INDUSTRIAL ELECTRIC REELS
crease in prices. This was given in response to Mueller call-
ing the Company’s noneconomic proposals ‘‘ballbusters,’’
and Bailey referring to the Union’s economic proposal simi-
larly. Union witnesses testified that Loni Miller in effect said
that the Company had presented the best deal it could come
up with and it would be a waste of time to discuss the
Union’s proposal (to merge Tier II with Tier I) any further.
All witnesses agreed to one degree or another that a substan-
tial amount of time was spent discussing the health insurance
issue.
Union witnesses testified that at this meeting the Union
began by asking that all previous tentative agreements be
kept and the Company gave silent approval. They objected
at the end of the meeting when the Company gave another
of its draft proposals, this one containing some language
which it had earlier agreed to withdraw. Of course, the
Union itself had proposed a more regressive severance pay
provision in this same meeting.
I believe the foregoing recitation of evidence makes it
clear that the Company did not foreclose discussion of eco-
nomic issues. In fact, it appears from the credible evidence
that one of the prime economic issues, health insurance, was
discussed at length. That the Company was not willing to en-
tertain a proposal to merge the two tiers of employees is not
a refusal to discuss economics. There is no showing that any-
one from the Union suggested any change be made in Re-
spondent’s economic offer and Respondent did not reiterate
that that offer was its final offer.
The parties next met on July 16. At this meeting Brockley
offered to give the Union a lump sum dollar figure for wages
and let the committee decide how to distribute it between
Tiers and years, but wanted to discuss the remaining issues
first and get them out of the way. The parties did discuss
some of them. According to Loni Miller, the parties were
close to an agreement on subcontracting as the Company had
agreed to grandfather existing employees. The Union still ex-
pressed concern about two welders who were working in a
lesser classification. It felt that if some welding work was
farmed out, these two employees would never have a chance
to get back to their welding classification. Brockley offered
to enter into a side letter addressing this point. The Union
seemed to agree and took a caucus. Loni Miller testified that
he had prepared a costing of the Company’s wage proposal
which showed the Company was offering an additional
$268,000 in wages over the 3-year life of the proposed con-
tract. It was never given to the Union because the meeting
ended without the parties coming back together. Both com-
pany witnesses and union witnesses offered testimony about
the reason the meeting ended, each citing conversations with
the mediator which favored the side offering the testimony.
As I stated earlier, I do not rely on these one-sided conversa-
tions with the mediator as there is no way to test their truth-
fulness. For all I know, the mediator may have told one side
one thing and the other something else. In any event, the
Union evidently did not take Brockley’s offer seriously, or
did not consider it good enough to seriously consider. The
Union made no economic counteroffer to Brockley’s pro-
posal at this meeting.
I consider the offer to let the union committee decide or
at least propose how the dollar amount of Respondent’s pro-
posal would be split between the tiers to be a valid conces-
sion, and the Union’s witnesses at the hearing did also. How-
ever, at this meeting, the Union did not seek to explore this
concession and did not ask for any particulars, including
what dollar amount Brockley was offering. That Brockley
also wanted to settle the remaining noneconomic issues is
certainly not inconsistent with reaching an agreement. The
Respondent at this meeting was willing to make concessions
on noneconomic matters and did make an economic conces-
sion. I do not find that its actions in either the meeting of
July 11 or 16 could be considered unfair labor practices or
to have converted the strike to an unfair labor practice strike
or unlawfully prolonged the strike.
The next meeting was held on July 22. In the interim, the
Company had sent the employees a letter dated July 19 urg-
ing them to return to work and stating that if they did not,
the Company would begin hiring permanent replacements.
To this point, no real production had been accomplished
since the strike began, though management with some part-
time help had continued shipping product.
On July 22, the Company proposed changing its wage pro-
posal to one offering Tier I employees increases of 1 percent,
4 percent, and 3 percent, and Tier II increases of 6 percent,
3 percent, and 2 percent. The Union then submitted a coun-
terproposal. The Company accepted the Union’s proposal
that Tier I employees be given a 3-percent-per-year increase,
and countered the Union’s Tier II proposed 8-percent, 3-per-
cent, and 3-percent increase with a 6-percent, 4-percent, and
4-percent proposed increase. The Union proposed some
changes in the health insurance proposal, but no agreement
was reached on any proposal on this date except for one with
respect to holidays. At this point, Loni Miller estimated that
the Company and Union were about $100,000 apart. Since
July 1, the Company had upped its wage offer by about
$25,000. Near the end of this meeting Gary Miller made a
comment about shutting the Company down, which irritated
Brockley. The mediator broke up the meeting at this point,
with each side indicating that they had nothing more to give.
At the end, the Company’s latest economic proposal was
under consideration by the Union, and a further meeting was
scheduled for July 25.
Miller testified that he, in private, handed Brockley a letter
which said that the Union wanted to return all employees to
work under the expired contract and begin marathon negotia-
tions to reach an agreement. He said Brockley handed the
letter back to him and said he was not interested. Mueller
and D’Agosta testified that Miller told them that he had
shown the letter to Brockley on July 22 and Brockley had
rejected it. Brockley denies ever seeing the letter. I credit
Brockley’s denial based on my findings with respect to Mil-
ler credibility and for the reasons set forth below. If the em-
ployees wished to return under the terms of the expired con-
tract as July 22, they could simply return to work as no re-
placements had been hired and the Company had not imple-
mented any of its proposals. Such a proposal would have
made sense after replacements had been hired, but not be-
fore. Indeed, in his letter to employees on July 19, Brockley
had expressly urged the employees to return to work. On
cross-examination, Miller agreed that the letter might have
been prepared on another later date. No mention of this letter
appears in any of Miller’s affidavits.
No contention is made that anything that happened in the
meeting of July 22 violates the Act. Although I have found
that Respondent’s written and oral offers to resume negotia-
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 It is difficult to discern accurately what was offered by the
Union in a bargaining session held August 2. The testimony with re-
spect to this meeting is fragmented and generalized.
12 Loni Miller overheard this telephone conversation and heard
Brockley indicate that the parties were at impasse.
13 The letter was sent certified mail and the receipt indicates that
the Union received it on July 25.
tions remedied its unlawful act on July 1 and thus the strike
was an economic strike from its inception, I would further
note that the bargaining which occurred on July 11, 16, and
22 would also constitute a remedy of that unfair labor prac-
tice. As noted immediately below, the employees held a
meeting on July 23, wherein the status of negotiations was
reported to them and they voted not to discuss the contract.
If the report to them was accurate, they would have learned
that the parties had seriously negotiated over economics and
that the gap between the parties had narrowed significantly.
Thus, as their stated reason for starting the strike no longer
existed, they could have ended the strike, returned to work
and continued the negotiations. By choosing not to do so, I
would find that the strike reverted an economic one, assum-
ing, which I do not, that it was an unfair labor practice strike
at its inception.
2. Did the Company unlawfully declare impasse and
implement its last offer?
The Union held a meeting on July 23. As noted, the em-
ployees had been sent a letter by the Company urging them
to return to work and informing them that it may begin hir-
ing replacements. At the meeting, Miller told the employees
he had filed unfair labor practice charges and updated them
on the status of negotiations. The employees voted not to
discuss the contract anymore and the meeting ended. Accord-
ing to Mueller, Miller told the members that negotiations
were slow, and he did not feel they were really in good faith
and he had filed unfair labor practice charges. Mueller ad-
dressed the group. He remembered a member speaking from
the floor saying that if the members gave into threats of re-
placement, that the next time there would be replacements
from the first day. Mueller explained some of the problems
with negotiations, that there were times the Company would
not touch on issues, that the committee received a lot of in-
sults, and that he was upset because the Company had ac-
cused the committee of misinforming the membership. He
asked the members to refrain from talking with management.
He said Miller told the members about the wage proposal re-
ceived from the Company on the previous day, and that the
members had to be more flexible to get things settled. He
suggested that the Union might have to give in on one of
the security proposals, but not both. This position was not
communicated to the Company in any fashion until a meet-
ing held either August 2 or 5.11
On August 23 or 24, Miller received a call from Brockley
who asked if there was any reason to hold the next meeting
on August 25. Miller asked him if he had any room for
movement and Brockley said no. Miller then said that if he
did not have room for movement, there was no point in
meeting. Brockley testified that Miller said he had no room
to move and no proposals to make. Miller denied that he said
in this conversation that the Union had no room to move. I
do not believe this denial. Miller then testified generally that
the Union did have some room for movement. However, the
Company had made the last proposal, and if the Union had
reason to move, why cancel the meeting? On cross, Miller
modified his version of the conversation to indicate that the
Union had room to move only if the Company made some
movement first. He then indicated that he did not say this
on the telephone. Because of Miller’s demonstrated lack of
candor in this record and because his actions do not logically
make sense, I credit Brockley’s version of this conversa-
tion.12 If one believes his earlier testimony, just 2 days be-
fore he was suggesting marathon bargaining sessions. Signifi-
cantly, Miller called the mediator and canceled the meeting.
He next received a letter from Brockley verifying the can-
cellation of the meeting set for August 25. This letter, inter
alia, states:
As I advised you, Industrial Electric Reels, Inc. does
not have any further proposals to advance in the nego-
tiations. I understood you to indicate that the Union
likewise has no further proposals or modified proposals
to make. This leaves our respective positions where
they were when we ended our session on Monday, July
22. Unless you have further proposals, or modifications
to proposals, that you wish to discuss and which might
resolve our negotiations, I believe we are at impasse
and that further negotiations would be futile. If you
have any proposals, modifications or ideas which might
bring us to agreement, please let me know right away,
as the Company’s position is that we are at impasse in
our negotiations.
Miller testified that he received the letter on the 25th or
26th, and that at some point, he took the letter to the Union’s
attorney who looked at it.13 By letter dated July 31, he re-
sponded in a letter to Brockley. This letter states that the
Union does not feel the parties are at impasse and feels it
has some room for movement. It asks that Brockley contact
him to set up a meeting.
Between the date of the Union’s receipt of Brockley’s let-
ter declaring impasse and its response some 6 days later,
some real changes took place in the parties’ relationship. Be-
ginning July 26, the Company placed newspaper ads for re-
placement workers. The wage rates mentioned in the ads
were the rates contained in its July 22 proposal. On July 29,
the Company had a large number of persons come into the
plant to apply for jobs as replacements, an event obvious to
those strikers on the picket line. The Company offered evi-
dence that it had 19 applicants on July 26, 33 on July 27,
148 on July 29, and 91 on July 30. Miller testified that he
first learned of the applicants on Friday, July 26, and first
learned that replacements had been hired and were working
on Monday, July 29. The Company also implemented its
offer of July 22 with respect to replacements it hired and the
few strikers who crossed the picket line and returned to
work.
Miller at some point called the mediator to set up a meet-
ing, and the mediator contacted the Company on July 31. As
a result, a negotiation meeting was held on August 2. At this
meeting the Company made no concessions. The Union
made some proposals which included some concessions in
return for concessions from the Company. They were all re-
jected.
1085INDUSTRIAL ELECTRIC REELS
14 As noted at the outset of this decision, the Union did file an
unfair labor practice charge over the declaration of impasse in De-
cember, a month after the complaint issued. The charge was filed
at the direction of the Region.
Another meeting was held on August 5. Miller testified
that the Union offered to accept the Company’s proposals
and go back to work. This offer was rejected. The Company
presented a proposal which added some items which it had
previously dropped or withdrawn. The Union would have to
agree to these to get a new contract. At some point in this
meeting, Miller agreed to accept the Company’s proposal as
of August 5, a proposal more favorable to the Company than
its proposal of July 22, if the Company would recall the
strikers rather than put them on a preferential hiring list. The
Company was unwilling to do this.
I believe the parties were at impasse as of July 22 or 24,
when Respondent declared impasse. ‘‘Impasse is a way of
describing that point in collective bargaining at which, at
least until further developments occur,’’ the parties have bar-
gained in good faith in an effort to agree to a set of terms
and conditions of employment, but have been unable to
strike an accord. When that point is reached, two practical
consequences ensue: (1) an employer may put into effect,
without further discussion with the union, terms earlier of-
fered by it during the bargaining; and (2) either party may,
for the present, refuse to schedule bargaining sessions.
The authoritative definition of impasse is that given by the
Board in Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
an impasse exists when ‘‘good-faith negotiations have ex-
hausted the prospects of concluding an agreement.’’ The Taft
case has also been quoted, probably in every impasse case
issued by the Board since 1967, for the summary of some
of the factors relevant to the determination of the existence
of an impasse (at 478):
Whether a bargaining impasse exists is a matter of
judgment. The bargaining history, the good faith of the
parties in negotiations, the length of the negotiations,
the importance of the issue or issues as to which there
is disagreement, the contemporaneous understanding of
the parties as to the state of negotiations are all relevant
factors to be considered in deciding whether an impasse
in bargaining existed.’’ [Storer Communications, 294
NLRB 1056 (1989).]
Each of the above-cited factors in determining whether im-
passe existed on July 24 will be briefly discussed.
(a) Bargaining history: The parties have enjoyed a collec-
tive-bargaining relationship since 1970 and have entered into
a number of collective-bargaining agreements. They have
necessarily engaged in a number of negotiations to reach
those agreements. Both of the principals involved in the in-
stant negotiations, Miller and Brockley, had engaged in bar-
gaining with each other in the past. For them to reach a point
where each states that there is no further room for move-
ment, given the past history of bargaining and their knowl-
edge of each other, indicates to me that the parties have actu-
ally reached impasse and are not simply engaging in some
ploy to force movement from the other side.
(b) Good faith of the parties: Although I have found that
Respondent engaged in an unlawful bargaining tactic in the
meeting of July 1, I have also found that it remedied that ac-
tion. Overall, I find that Respondent engaged in good faith,
though at times, hard bargaining with an honest aim of
reaching an agreement. The same can be said for the Union.
The parties had reached a number of tentative agreements,
and both had made significant concessions on a number of
serious issues. For example, Respondent had during the
course of negotiations proposed grandfathering current em-
ployees on subcontracting and technological change issues,
reducing by half the number of hours it sought on mandatory
overtime, and raising the amount of money involved in its
economic package by about $25,000 from July 1.
(c) Length of negotiations: By July 22, the parties had met
14 times, and had identified almost from the outset of nego-
tiations the issues on which they most seriously disagreed.
These issues had been discussed over and over, and though
concessions had been made with respect to many of them,
no agreement had been reached on any of them. These issues
included subcontracting, technological change, mandatory
overtime, and economics. The length of negotiations also
seems parallel with the 1988 negotiations wherein in about
the same number of sessions, agreement had been reached.
I agree with Respondent that both sides appeared to be wait-
ing for some intervening event to occur before either was
willing to give further.
(d) Seriousness of the issues about which there is dis-
agreement: As noted in detail at the beginning of this deci-
sion, the issues of subcontracting, technological change, man-
datory overtime, and economics were important to both
sides. Both had goals with respect to these issues which lead
to immediate confrontation. The Company sought to control
costs and make its plant more competitive by achieving more
flexibility in the use of its employees, by modernizing its
equipment, and by less restrictive use of subcontracting. The
Union genuinely disliked the two-tier wage structure, wanted
substantial raises for Tier I employees, and feared the ‘‘job
security’’ changes proposed by Respondent were a means to
reduce the workforce. Each side had in their own minds le-
gitimate reasons for taking the stances they did on these
issues and by insisting on their positions, neither side in my
opinion was trying to frustrate the bargaining process.
(e) Contemporaneous understanding of the parties: Based
on the telephone conversation of Miller and Brockley, and
Brockley’s letter confirming that conversation, I find that
both parties agreed that they were at impasse on July 24.
Both parties indicated that they had no more room for move-
ment, and Miller canceled the next and only scheduled meet-
ing. If the Union had room for movement, it could have re-
sisted canceling the meeting and made a counterproposal to
the Respondent’s outstanding proposals. If the Union dis-
agreed with Respondent’s letter, Miller could have responded
immediately by letter rather than waiting a week, or could
have simply called. The Union could have filed an unfair
labor practice charge alleging unilateral declaration of im-
passe. It did none of these things.14
As I noted at the outset of this discussion, impasse does
not mean forever. I believe that impasse did exist on July 24,
and developments occurred over the next several days which
prompted the resumption of negotiations. These events were
the hiring of replacement workers and the implementation of
the Company’s last offer with respect to those workers. The
response of Miller to Brockley’s written declaration of im-
passe appears to me to be a direct response to the hiring of
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 The parties stipulated that the Company had evidence which
would support the belief that those employees had engaged in picket
line misconduct, and that the Union had such knowledge when it re-
layed its ‘‘all or none’’ offers.
replacements and not to a busy schedule as contended by
General Counsel. The Union’s agreeing with the Respond-
ent’s demands within the next week also indicate to me that
the Union was not at all certain that it was engaged in an
unfair labor practice strike. I believe that the Union, like
Brockley, initially believed that Respondent’s employees
could not be replaced because of their long experience. I fur-
ther believe that the hiring of these replacements broke the
impasse.
As I have found that Respondent lawfully declared im-
passe, I also find that its implementation of the July 22 offer
with respect to the replacements was lawful.
E. Did Respondent unlawfully fail and refuse to
reinstate strikers on and after August 7?
I have heretofore found that the strike was an economic
strike and thus, the striking employees were only entitled to
the reinstatement rights of economic strikers, not unfair labor
practice strikers. A fair amount of evidence was adduced at
the hearing on whether the Union ever made an uncondi-
tional offer to return to work because it insisted that all strik-
ers, including some who were accused of serious strike mis-
conduct, be returned as a group. This evidence will not be
discussed as it is unnecessary to the disposition of this case.
On August 6, the Union learned that the Region was
issuing a complaint in this matter, and in a letter dated Au-
gust 7, Miller wrote Brockley:
On behalf of all of the employees, bargaining unit
members, I hereby make an unconditional offer to re-
turn to work at the prior terms and conditions which
existed before the strike. I would be most happy to
meet with you at your earliest convenience to determine
scheduling of the return of the unit to the plant. Obvi-
ously, with this unconditional offer to return to work,
we hope to get everyone back to work as soon as pos-
sible.
I find that this offer is not unconditional as it predicates
the return of the strikers on the Respondent reinstating them
under the terms and conditions which existed prior to the
strike. Respondent had lawfully implemented different terms
and conditions and was not obligated to reinstate the strikers
under the older conditions.
Brockley responded on August 8 with a letter to Miller,
in which he states that he was willing to meet to discuss the
return of the strikers, though he commented that he did not
believe he was legally bound to recall them because of the
hiring of replacements. He also stated the Respondent’s posi-
tion that strikers would return under the conditions set out
in the Respondent’s offer of August 5, and not the expired
contract. He advised that if the Union did not accept that
offer, the parties were again at impasse.
Miller sent Brockley another letter on August 12, which
states:
In my August 7, 1991 letter I made an unconditional
offer to return all striking employees to work. I am
making the same unconditional offer in this letter. We
are offering to return to work at your current terms and
conditions of employment. We are not conceding that
your current terms and conditions have been lawfully
implemented. The union wants all striking employees
returned to work immediately. I am available to meet
with you on Tuesday, August 13, 1991, to work out the
return of all of the striking employees.
By August 12, four employees had been offered reinstate-
ment by Respondent. Thereafter, several meetings were held
between the parties attorneys to discuss the matter of rein-
statement. Following these meetings, during August, valid re-
instatement offers were sent to all striking employees except
five accused of strike misconduct.15 Two striking employees
returned pursuant to the offer of reinstatement. None of the
other striking employees responded. All of these striking em-
ployees were permanently replaced.
Contrary to the complaint allegations, I find that following
the Union’s offer to return to work, the Respondent did make
a valid offer of reinstatement to all of its striking employees
to whom it had an obligation to offer reinstatement and did
not violate the Act as alleged. If the striking employees now
wish to return to work, they may have a right to be placed
on a preferential hiring list as the strike has evidently never
formally ended.
CONCLUSIONS OF LAW
1. Respondent Industrial Electric Reels, Inc. is an em-
ployer 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 meaning
of Section 2(2) of the Act.
3. The Respondent, on July 1, 1991, by presenting its ini-
tial economic proposal during negotiations in a take it or
leave it manner and refusing to seriously negotiate over eco-
nomics until a vote was taken by the Union on its proposal
violated Section 8(a)(1) and (5) of the Act.
4. The strike which commenced on July 8, 1991, was an
economic strike from its inception as Respondent remedied
its unfair labor practice of July 1, before the commencement
of the strike.
5. The Respondent lawfully declared an impasse in nego-
tiations on July 24 and thereafter, lawfully implemented the
terms and conditions of its last offer.
6. The strike was neither prolonged by nor converted to
an unfair labor practice strike by any action of Respondent
alleged in the complaint.
7. The unfair labor practice found to have been committed
by Respondent is one which affects commerce within the
meaning of Section 2(6) and (7) of the Act.
8. The Respondent did not commit any other unfair labor
practice alleged in the complaint.
REMEDY
Having found that Respondent engaged in conduct in vio-
lation of Section 8(a)(1) and (5) of the Act, it is hereby or-
dered to cease and desist therefrom. As Respondent there-
after remedied its unfair labor practice, I recommend that it
be ordered only to post appropriate notice.
[Recommended Order omitted from publication.]