J. W. Rex Co.

National Labor Relations Board - Board Decisions

Aug 31, 1992

308 N.L.R.B. 473 (N.L.R.B. 1992)

473
308 NLRB No. 71
J. W. REX CO.
1 The Respondent has requested oral argument. The request is de-
nied, as the record, exceptions, and briefs adequately present the
issues and the positions of the parties.
2 The Respondent has excepted to the revocation of its subpoena
seeking to compel the testimony of Commissioner Alex Kapner of
the Federal Mediation and Conciliation Service, who had participated
in the 1988 negotiations between the Respondent and the Union.
That exception is without merit. Settled public policy clearly pro-
hibits the Board from compelling the testimony of Federal mediators.
Tomlinson of High Point, 74 NLRB 681, 684–685 (1947).
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
We adopt the judge’s finding that the Respondent violated Sec.
8(a)(3) and (1) by unduly delaying the reinstatement of striking em-
ployees after November 16, 1988, because we agree with the judge
that the Respondent failed to demonstrate a legitimate and substan-
tial business justification for the delay. See, e.g., Aztec Bus Lines,
289 NLRB 1021, 1030 fn. 23 (1988). In this regard, however, we
do not rely on the judge’s finding that six strikers told the Respond-
ent they would accept recall, but never reported to work after the
strike. The record does not support that finding. The record indicates
that four of those individuals (Camburn, Fillman, Barber, and K.
Smith) informed the Respondent that they were not returning; one
(Burycz) was ‘‘on hold’’; and only one (Prince) was a ‘‘no show.’’
Because we find that the Respondent unduly delayed the reinstate-
ment of the strikers, it is unnecessary for us to decide whether the
judge correctly found that the 5-day ‘‘grace period’’ normally grant-
ed for reinstating ‘‘unfair labor practice strikers should be applied
to the reinstatement of economic strikers as well. See Drug Package
Co., 228 NLRB 108, 113–114 (1977).
4 In so finding, we do not rely on the Respondent’s failure to meet
with the Union between November 14, 1988, and March 1989, be-
cause, as we explain in the text below, we do not find the failure
to meet unlawful. Nor do we rely on the judge’s finding that the
Respondent’s ‘‘envy of nonunion competitors,’’ as indicated in a let-
ter to the Respondent’s employees, was symptomatic of bad faith in
the bargaining process.
In finding bad-faith bargaining, Member Oviatt relies solely on the
judge’s findings that the Respondent’s negotiator took the position
that he would consider proposals by the Union only for ‘‘cosmetic
changes’’ and that in effect he would give a ‘‘quick no’’ to any sub-
stantive proposals by the Union.
5 In affirming the judge on this issue, we find that L. W. Le Fort
Co., 290 NLRB 344 (1988), cited by the Respondent, is distinguish-
able from this case. In Le Fort, the Board found that the employer
had bargained to a valid impasse as of June 1, and was free to im-
plement the terms of its final proposal, which it had made on May
30. On June 11, the employer advanced another proposal, which
contained some terms that were less favorable than those of the May
30 offer; the employer also informed the union that if the new offer
was not accepted by June 14, it would consider impasse to have
been reached, and would withdraw all offers. A majority of the panel
(Chairman Stephens dissenting) found that the employer’s June 11
actions did not constitute surface bargaining such as to invalidate the
previously reached impasse. Le Fort thus differs from this case, in
which the Respondent proposed a contract with less favorable terms
than those it had previously offered, indicated in no uncertain terms
that it would not countenance any departure from the substantive
terms of the new proposal, and then implemented the newly pro-
posed terms after declaring impasse.
6 Consequently, it is unnecessary for us to decide whether the
judge correctly found that, even if the Respondent had bargained in
good faith, a valid impasse had not been reached at the time the Re-
spondent implemented the terms of its final proposal.
7 Unless otherwise stated, all dates are in 1988.
8 Although, as noted above, the Respondent began bargaining in
bad faith on November 7, 1988, no party contends that the strike
was converted to an unfair labor practice strike.
J. W. Rex Company and United Steelworkers of
America, AFL–CIO–CLC. Case 4–CA–17765
August 31, 1992
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On June 4, 1991, Administrative Law Judge Nancy
M. Sherman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and
the General Counsel filed an answering brief.
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 briefs1 and has
decided to affirm the judge’s rulings,2 findings,3 and
conclusions, as modified below, and to adopt the rec-
ommended Order, as modified.
We find, in agreement with the judge, that the Re-
spondent failed to bargain in good faith,4 in violation
of Section 8(a)(5) and (1), on and after November 7,
1988.5 We also find, in agreement with the judge, that
the parties had not bargained to a legally cognizable
impasse prior to the Respondent’s implementation of
its final contract proposal. In so finding, we rely on the
Respondent’s failure to bargain in good faith, as found
above.6 Unlike the judge, however, we do not find that
the Respondent’s failure to meet with the Union be-
tween November 14, 1988, and March 1989 was un-
lawful. For the reasons that follow, we find merit in
the Respondent’s exception to the judge’s finding that
its conduct in this respect constituted a failure to bar-
gain in good faith.
The Respondent and the Union have been parties to
a series of collective-bargaining agreements, the most
recent of which expired September 17, 1988.7 Al-
though the parties bargained in an attempt to reach a
successor agreement, the negotiations were not suc-
cessful, and the employees went on strike when the
contract expired. The strike, which is conceded to be
an economic strike at all times material,8 lasted several
weeks, during which time several additional negotiat-
ing sessions were held, with the participation of Alex
Kapner, a representative of the Federal Mediation and
Conciliation Service. No agreement was reached, how-
ever, and on November 14 the Respondent declared its
intention to begin hiring permanent replacements for
the strikers.
474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Pearson testified as follows:
Q. Now, did you–you testified previously that once Mr.
Kapner took over the negotiations he was the one who called
the meetings, is that correct?
A. Yes, the meetings had to be called through him, yes. [Em-
phasis added.]
10 Cf. Standard Rice Co., 46 NLRB 49, 53–54 (1942) (no 8(a)(5)
violation where parties failed to meet because of mutual misunder-
standing concerning which party was to contact the other about re-
suming negotiations).
On November 16, Union Representative Henry Pear-
son came to the Respondent’s plant and met with John
Rex, the Respondent’s president, and Linda Iltis, its
personnel director. Pearson informed Rex and Iltis that
the Respondent’s final bargaining offer had been re-
jected by the employees. He then gave Rex a hand-
written letter stating that the Union was offering un-
conditionally to return to work. Rex gave the letter to
Iltis, who read it and said ‘‘Okay.’’ Pearson then said,
‘‘We’ll need to continue negotiating.’’ Iltis replied, ‘‘I
understand.’’ There was no mention of when negotia-
tions would resume or how the next meeting was to
be scheduled.
On November 21, Pearson returned to the Respond-
ent’s plant, this time with union bargaining committee
member Lucien Hendricks. The two met with Iltis in
the lobby, and Pearson gave her another letter stating
the Union’s unconditional offer to return to work.
Pearson also reiterated that the Union still wanted to
continue negotiations, and Iltis replied, ‘‘All right.’’
No negotiations ensued, however, until March 1989.
In fact, not until January 1989 did either of the parties
contact the other concerning the resumption of bargain-
ing. By letter to John Rex, dated January 19, 1989,
Pearson stated that the Union was ‘‘waiting for the
Company to continue negotiations.’’ He denied that the
parties were at impasse, and opined that it was in the
best interests of the parties to negotiate as soon as pos-
sible. Iltis responded by letter dated January 23, 1989,
stating that ‘‘We always have been and will continue
to be ready to meet with you at the call of the Federal
Mediator.’’
The judge found that the Respondent violated Sec-
tion 8(a)(5) and (1) by disregarding the Union’s No-
vember requests for continued negotiations. She re-
jected the Respondent’s argument that the Union’s re-
quests were communicated directly by Pearson rather
than through the mediator, noting that not until late
January 1989 did the Respondent indicate a willing-
ness to honor such requests if made through the medi-
ator. We disagree and reverse.
According to the credited testimony, when Pearson
indicated on November 16 and 21 that the Union de-
sired to continue negotiations, he did not suggest any
dates, or even any general timeframe, for the resump-
tion of talks. Moreover, Pearson admitted on cross-ex-
amination that, after Mediator Kapner became involved
in the negotiations, Kapner was the one who had to
call for meetings.9 Pearson further conceded that
Kapner did not call a meeting between November 14,
1988, and March 1989. Pearson also admitted that the
Respondent never refused to meet with the Union, and
that the Respondent’s negotiators never refused to at-
tend a meeting.
On the basis of this record, we agree with the Re-
spondent that the judge erred in finding that the Re-
spondent unlawfully disregarded the Union’s requests
for continued negotiations. In the first place, Pearson’s
remarks to Iltis were hardly explicit requests for re-
newed negotiations. Lacking any suggestion of dates or
even timeframes for the resumption of bargaining,
those statements communicated only the Union’s re-
ceptivity to the idea of further bargaining—a receptiv-
ity that was reciprocated by Iltis on both occasions. Of
course, Iltis could have advanced the process by sug-
gesting dates herself, but so could Pearson. We decline
to find that the Respondent had any greater duty in this
regard than did the Union.
Pearson’s admission that the parties understood that
meetings were to be called (if at all) through the medi-
ator is also significant because it belies any suggestion
that the Respondent unilaterally imposed such a re-
quirement as a procedural obstacle to negotiations. In
addition, Pearson’s testimony leads us to reject the
judge’s finding that the Respondent’s reliance on that
understanding was suspect because it was not articu-
lated until late January 1989, instead of contempora-
neously with the Union’s November 1988 requests for
further bargaining. On the contrary, if the parties un-
derstood that meetings would be set up by the medi-
ator, as Pearson testified, it is not surprising that Iltis
did not mention that understanding to Pearson in No-
vember, since Pearson clearly was as well aware of it
as Iltis was. A more appropriate inference is that the
Respondent, pursuant to the parties’ understanding, as-
sumed that the Union would contact the mediator con-
cerning further meetings, and that the Respondent
would hear from the mediator concerning dates and
times for future bargaining sessions. When Pearson
sought to resume negotiations directly in January 1989,
Iltis simply reminded him that meetings were supposed
to be scheduled through the mediator. Given Pearson’s
admission that the Respondent and its representatives
never refused to meet with the Union, we are unable
to find, on this record, that the delay in resuming ne-
gotiations was the result of unlawful conduct on the
part of the Respondent.10 We shall, therefore, dismiss
this allegation of the complaint.
ORDER
The National Labor Relations Board orders that the
Respondent, J. W. Rex Company, Lansdale, Pennsyl-
475J. W. REX CO.
vania, its officers, agents, successors, and assigns, shall
take the actions set forth in the Order as modified.
1. Delete paragraph 1(d) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT interrogate you about activity pro-
tected by the Act, in a manner constituting inter-
ference, restraint, and coercion.
WE WILL NOT discourage membership in the Union
(United Steelworkers of America, AFL–CIO–CLC, and
its Local No. 5621) by delaying the reinstatement of
strikers who have unconditionally offered to return, or
by otherwise discriminating in regard to hire or tenure
of employment or any term or condition of employ-
ment.
WE WILL NOT fail or refuse to bargain in good faith
with the Union with respect to the unit referred to in
article I of our contract with the Union effective be-
tween September 15, 1985, and September 17, 1988.
WE WILL NOT, without the existence of a legally
cognizable impasse, make unilateral changes with re-
spect to minimum wage rates, the number of labor
grades, job classifications and job descriptions, job
evaluation policy, wage rates of group leaders, sales
bonus plan, wage-hour guarantees, overtime policy,
training period rate progression, temporary transfer
policy, recall, layoff, and bumping policies, policy re-
garding the recall of striking employees, seniority pol-
icy, vacation replacement policy, holiday pay and va-
cation policy, merit increase policy, payment of pro
rata vacation pay to employees who quit, job classi-
fication required to empty trash cans, the practice in
connection with the performance of unit work by su-
pervisors, or any other mandatory subjects of collective
bargaining, within the previously described bargaining
unit.
WE WILL NOT make unilateral changes with respect
to the assignment of unit work to persons not on our
payroll, or any other mandatory subjects of collective
bargaining, within the previously described bargaining
unit, without giving the Union prior notice and an op-
portunity to bargain.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of your
rights under the Act.
WE WILL make the following employees whole, with
interest, for any loss of pay they may have suffered by
reason of the discrimination against them:
Ann Antonacio Arland Landis
Joel Audain Alfred Leotta
Charles Ball Victor Lopez
Joe Bennett Willie Lott
Jose Carreras Thomas Mastromatto
Alan Clarke David Michie
Terry Copenhauer John Novotny
George Cute William Ordille
Mary Denton Damascene Pierre
Anthony Famularo Robert Reynolds
Thomas Felder Marcelo Rivera
Tod Frederick John Roeder
David Gerhart Rogelio Rosa
Carson Heil Harold Samuelson
Brian Hendricks Gary Schoch
Lucien Hendricks Albert Smith
Robert Hinkle Esau J. Smith
John Hodum William Stotsenburgh, III
J. Paul Homan Jose Vallejo
Gary Kaminski Eugene Waldspurger
Raymond Kreuson Charles Zeigler
WE WILL, on request by the Union:
(1) Rescind the minimum wage rates and merit in-
crease policy established about November 29, 1988.
(2) Restore the labor grades in existence until about
November 29, 1988.
(3) Rescind the changes made about November 29,
1988, in (a) job classifications and job descriptions; (b)
the job evaluation policy; (c) wage rates for group
leaders; (d) wage-hour guarantees; (e) overtime policy;
(f) the training period rate progression; (g) temporary
transfer policy; (h) recall, layoff, and bumping policy;
(i) seniority policy; (j) vacation replacement policy;
and (k) holiday pay and vacation policy.
(4) Abolish the sales bonus plan.
(5) Rescind the policy instituted about November
29, 1988, regarding the recall of striking employees.
(6) Resume the practice of paying pro rata vacation
pay to employees who quit.
(7) Rescind the requirement that bargaining-unit pro-
duction employees empty their trash cans.
476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The complaint alleges that Respondent bargained in bad faith
from about August 18 to about November 14, 1988. However, coun-
sel for the General Counsel averred in his opening statement, and
contends in his opening brief, that such alleged unlawful conduct
began on November 7, 1988.
2 My finding that the bargaining representative consisted of both
the Local and the International is based on the pleadings and on the
signature page of the most recent bargaining agreement. The parties
stipulated that the bargaining representative is the Local. Any issue
thus presented has no relevance to the merits of the instant case.
(8) Rescind the changes made, after the expiration
of the bargaining agreement on September 17, 1988, in
the practice in connection with the performance of unit
work by supervisors.
(9) Abandon the practice of permitting the unit work
of loading and unloading trucks to be performed by
truckdrivers not employed by us.
However, nothing in the Board’s Order is to be con-
strued as requiring us to cancel any wage or other fi-
nancial improvements without a request from the
Union.
WE WILL make employees whole, with interest, for
any loss of pay they may have suffered by reason of
our unlawful unilateral actions. As to our unilateral
abandonment of our prior practice of paying pro rata
vacation pay to employees who quit, such payments
will be made to Ann Antonacio, Edward Camburn,
John Fillman, and Kenneth Smith, and any other em-
ployees who failed to receive pro rata vacation pay
upon their resignation.
WE WILL, on request, bargain in good faith with the
Union as the exclusive representative of the employees
in the above-described unit with respect to rates of
pay, hours of employment, and other terms and condi-
tions of employment and, if an understanding is
reached, embody the understanding in a signed agree-
ment.
J. W. REX COMPANY
William E. Slack Jr., Esq. and Monica McGhie-Lee, Esq., for
the General Counsel.
Edward H. Feege, Esq. and Thomas G. Servodidio, Esq.,
both of Bethlehem, Pennsylvania, for the Respondent.
DECISION
STATEMENT OF THE CASE
NANCY M. SHERMAN, Administrative Law Judge. This
case was heard before me in Philadelphia, Pennsylvania, on
August 16–18 and September 20–22, 1989, pursuant to a
charge filed on December 12, 1988, against Respondent
J. W. Rex Company by United Steelworkers of America,
AFL–CIO–CLC (the International) on December 12, 1988,
and a complaint issued on March 29, 1989, and amended on
August 16, 1989. The complaint as amended alleges that Re-
spondent violated Section 8(a)(1) of the National Labor Rela-
tions Act (the Act) by interrogating employees regarding
their decision to abandon a strike and to return to work; vio-
lated Section 8(a)(1) and (3) of the Act by delaying the rein-
statement of 42 named strikers; and violated Section 8(a)(1)
and (5) of the Act by failing and refusing to bargain in good
faith,1 by changing terms and conditions of employment
without giving the employees’ collective-bargaining rep-
resentative an opportunity to bargain and (as to some such
changes) without giving the representative prior notice, and
by failing and refusing to meet and negotiate with the em-
ployees’ bargaining representative over the terms of a new
collective-bargaining agreement.
On the basis of the record as a whole, including the de-
meanor of the witnesses, and after consideration of the briefs
and reply briefs filed by counsel for the General Counsel (the
General Counsel) and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Pennsylvania corporation with a facility in
Lansdale, Pennsylvania, where Respondent is engaged in the
business of heat-treating metal parts. During the year preced-
ing the issuance of the complaint, Respondent, in the course
of such business operations, sold and shipped goods and ma-
terials valued in excess of $50,000 annually directly to points
located outside Pennsylvania. I find that Respondent is en-
gaged in commerce within the meaning of the Act, and that
assertion of jurisdiction over its operations will effectuate the
policies of the Act. NLRB v. Reliance Fuel Oil Corp., 371
U.S. 224 (1963); Siemons Mailing Service, 122 NLRB 81, 85
(1958).
Local Union No. 5621, United Steelworkers of America,
AFL–CIO–CLC (the Local) and the International are each
labor organizations within the meaning of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
1. Respondent’s preparations for the 1988 negotiations
Since 1959, the Local and the International (sometimes
jointly called the Union), have been recognized by Respond-
ent as the exclusive representative of an admittedly appro-
priate unit which consists essentially of Respondent’s pro-
duction and maintenance employees and drivers, and which
is specifically described in Conclusion of Law 3, infra.2 Re-
spondent and the Union have been parties to a series of col-
lective-bargaining agreements, the most recent of which be-
came effective on September 15, 1985, and expired by its
terms on September 17, 1988. Until that agreement expired,
the unit employees had conducted a total of one strike, in
1961.
Respondent operates a job shop which performs work pur-
suant to individual orders from customers. Between 1985 and
1987, Respondent’s sales declined by 35 percent. Profits also
declined, with 1987 showing a loss. John W. Rex, who is the
president and a director of Respondent and is also a share-
holder and a director of the corporation which owns all of
Respondent’s stock, testimonially attributed this deterioration
to competitors (both union and nonunion) which were able
to fill orders faster than Respondent and whose labor costs
477J. W. REX CO.
3 Although Respondent’s answer admits that Iltis was its agent, as
to Hoelscher such status is denied. Because Hoelscher’s status is ma-
terial solely for the purposes of determining whether Respondent is
answerable for his conduct in connection with negotiations, for pur-
poses of this case I believe to be sufficient the Respondent’s admis-
sion that he was its ‘‘chief negotiator,’’ Company President Rex’s
testimony that Hoelscher ‘‘led the negotiations, and Iltis’ testimony
that Hoelscher was Respondent’s ‘‘chief spokesman.’’ See Hyatt Re-
gency New Orleans, 281 NLRB 279, 282 (1986); Jet Spray Corp.,
271 NLRB 127, 133 (1984). In any event, admitted agent Iltis, who
was present throughout negotiations, ratified Hoelscher’s conduct by
failing to disavow it. See San Luis Obispo County Restaurant Assn.,
196 NLRB 1082, 1084 fn. 7 (1972).
4 An exhibit offered by Respondent shows, as to the period be-
tween 1982 and 1988, how many cases were withdrawn after being
taken to arbitration (13), how many were settled after the arbitration
hearing but before the decision issued (1), and the results of the 25
arbitrator’s awards actually issued—20 for Respondent, 4 for the
Union, and 1 ‘‘split decision.’’ An undisclosed number of the with-
drawals involved cases which were controlled by the disposition of
other cases in fact decided by the arbitrator. However, the exhibit
contains no breakdown by years. Hoelscher, who handled all of Re-
spondent’s arbitration cases during this period, testified that during
the 12 months after negotiations commenced in 1982, more griev-
ances were taken to arbitration than in any subsequent year (and
some were withdrawn). In May 1987, when Henry Pearson replaced
Schultz as the Union’s grievance processor, four arbitration cases
were pending, of which Pearson withdrew one which was close to
hearing. Thereafter, Pearson submitted three more grievances to arbi-
tration, of which he withdrew one. Two grievances went to arbitra-
tion after Pearson took over; Respondent prevailed in both of them,
and Hoelscher testified to the opinion that neither should have been
taken to arbitration. The record fails to show whether it was Schultz
or Pearson who requested arbitration in these two cases. Iltis testified
that after Pearson became involved, fewer frivolous grievances were
filed. However, both she and (in effect) Hoelscher testified that some
grievances which they considered frivolous had been unsuccessfully
taken by Pearson to arbitration; and Hoelscher testified without con-
tradiction to a statement by Pearson that he had taken some of these
cases solely because his superiors had told him to comply with the
wishes of the employee grievance committee.
5 Hoelscher then testified that at some point in time, Rex said that
he was upset about the ‘‘indirect costs’’ because of the disruption
of the manufacturing process when preparations were made for an
arbitration hearing on a grievance which was dropped at the last
minute. Iltis credibly testified that most of the time which she herself
spent in connection with grievances was spent preparing them for ar-
bitration, and that most of the dropped grievances were dropped so
close to the scheduled arbitration date that Respondent had already
completed its preparation.
(Respondent’s principal costs, other than energy costs) were
lower than Respondent’s.
Rex testified that shortly before the August 1988 com-
mencement of negotiations for a new bargaining agreement
to replace the 1985–1988 agreement, he had decided that he
was going either to liquidate the business, to find a way to
scale it down and provide only the services which were prof-
itable, or to try to deal with the issues of turnaround and
labor costs. During conferences with Labor Relations Con-
sultant Robert J. Hoelscher and Personnel Director Linda C.
Iltis in preparation for negotiations,3 Rex described these
concerns; Hoelscher testified that Rex expressed a preference
for the third option because he felt that he had an obligation
to his long-service employees. Rex asked Hoelscher to work
with Iltis and Respondent’s other managers to develop pro-
posals that would achieve the goals of improving operational
efficiency and reducing labor costs.
Further, Rex told Hoelscher to ‘‘get’’ into the arbitration
section the provision, called the ‘‘loser-pays-all’’ clause,
‘‘Compensation and expenses incident to the services of the
impartial arbitrator shall be paid by the losing party.’’ Both
the 1985–1988 agreement and its predecessor provided that
‘‘expenses and fees shall be paid equally by the parties.’’ A
loser-pays-all clause had been proposed by Respondent dur-
ing the 1985–1988 negotiations. However, Respondent had
dropped this proposal after receiving assurances from Inter-
national Representative Kenneth Schultz, who at that time
was handling grievances on the Union’s behalf, that there-
after he did not intend to take to arbitration employee griev-
ances of very little substance.4 As to Rex’s reasons for want-
ing this loser-pays-all provision, he testified on direct exam-
ination that he felt such a provision would tend to encourage
union leadership to exercise what Rex perceived as their re-
sponsibility to reject the membership’s request for arbitration
of plainly unmeritorious grievances. He further testified on
direct examination that his instructions to Respondent’s ne-
gotiators ‘‘had to do with the extensive number of grievances
and arbitrations that we had been having over the years . . .
I think we had more arbitrations in the last six years than
we had in the [whole] preceding of the company . . . . Until
’58 when the original United Steelworkers organized the
company [cf. supra, fn. 2] . . . . There was a lot of unrest
and upset about each of these issues and even when the
grievance was dropped, there was still a whole lot of time
that was spent not just by the committee and the people deal-
ing with it on an official basis, but the people in the shop,
too.’’ At this point in his direct examination, the following
exchange took place:
Q. Philosophically you don’t have any objection to
a grievance and arbitration procedure in the contract do
you?
A. No, of course not.
Q. What was your problem then?
A. My problem was cost. The fact that we spent so
much time dealing with these issues. It seemed to me
we [were] spending more time dealing with these issues
than we were doing in performing the services for
which we get paid that is heat treating. That is an exag-
geration, but it was that concerning to me.
When asked what Rex said, during prenegotiation meet-
ings with Iltis and Hoelscher, about the cost of arbitration,
Hoelscher testified at one point, ‘‘I don’t know that Mr. Rex
talked about the cost of arbitration. He said that the costs and
the inefficiencies caused by all of these frivolous arbitration
cases and he wanted this contract to contain what he wanted
the last time.’’ Hoelscher further testified, ‘‘I don’t know that
[Rex] ever really talked about the amount of time spent on
grievances as much as the arbitration developing it and the
cost associated with that which was said at times, but I don’t
particularly remember it being said that summer [1988].’’5
2. The initial bargaining session
During the bargaining negotiations, the Union was rep-
resented by International Representative Pearson and a 5-em-
ployee negotiating committee which until November 7, 1988,
included the Local’s president, vice president, and recording
478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 This finding is based on Iltis’ bargaining notes, received into evi-
dence without objection or limitation. The figure assumes that the
September 15 meeting and the October meetings began at 10 a.m.,
the hour when most of the other meetings began.
7 This finding is based on Iltis’ notes, which as to this proposal
contain only the entry ‘‘Open.’’ For demeanor reasons, I do not ac-
cept Hoelscher’s generalized testimony that ‘‘there were long discus-
sions every time [the loser-pays-all] proposal came up.’’
secretary. Respondent was represented by Hoelscher and
Iltis.
At the initial bargaining session, on August 18, 1988,
Pearson gave Respondent a document, in the form of pro-
posed changes in the 1985–1988 agreement, which set forth
the Union’s proposals with respect to a succeeding agree-
ment. At Hoelscher’s request, Pearson read these proposed
changes aloud and explained the perceived problem each
such proposed change was intended to address. The content
of some of these proposed changes is discussed infra.
Then, Hoelscher gave an opening statement to the effect
that Respondent wanted the freedom to run the plant effi-
ciently and profitably, without losing any jobs. Hoelscher
said that no wage increase should been given in 1985; and
that since then Respondent’s hourly employment had dimin-
ished by almost 50 percent, its salaried employment had di-
minished by 33 percent, and its sales had diminished by 49
percent. Hoelscher said that ‘‘jobs were being threatened un-
less we did something about it to turn this tide.’’ He said
that the average hourly rate in the plant was $10.20, the indi-
rect hourly costs were ‘‘even worse’’ and ran about $7.17,
and ‘‘we just had to address these problems.’’ Hoelscher fur-
ther said that low-skilled employees were being paid very
well for a low-skilled job. Then, Hoelscher gave the Union
a document, in the form of proposed changes in the 1985–
1988 agreement, which set forth Respondent’s proposals with
respect to a succeeding agreement. Hoelscher read these pro-
posals, numbered 1 through 22, aloud to the Union. During
this process, Pearson made at least some comments. When
Hoelscher reached proposal 18, the loser-pays-all proposal
(referred to in subsequent documents as ‘‘C-17’’), Pearson
said, ‘‘I just want you to understand I haven’t said no to
anything so far, but that one we are saying no to.’’ This was
the only company proposal Pearson did say no to.
3. Bargaining sessions between August 26 and
October 4, 1988, inclusive
a. Overview of the status of negotiations as of the end
of the October 4 session
The parties conducted additional bargaining sessions on
August 26 and 30, September 1, 12, 13, 15, and 16, and Oc-
tober 3 and 4, 1988. As of the end of the October 4 session,
the Union had abandoned its initial, August 18 proposals
with respect to visitation rights of union representative, no-
tice to Union of subcontracting, management rights, tem-
porary transfer of employees from day shift for purposes of
training new employees, pay for employees temporarily
transferred to higher paying jobs, time limits for filling post-
ed jobs, amount of compulsory overtime, advance notice to
Union of overtime, advance notice of requirement that active
employees fill in for vacationing employees, modification of
requirement that employees work immediately before and
immediately after a holiday in order to be paid for the holi-
day, increase in length of paid funeral leave and paid jury
duty leave, increase in length of vacations, increase in shift
premiums and in life, accidental death, and dismemberment
insurance, a change in health insurance plans, decrease in
length of employment to qualify for insurance, increase in
life insurance for pensioners, increase in company payment
into the pension plan, company payment for safety shoes,
paid sick days, a provision forbidding disciplinary suspension
until after a decision in any grievance case challenging the
suspension, and a limitation on intershift transfers. Also as
of the end of the negotiations on October 4, the Union had
agreed to Respondent’s proposals as to overtime to employ-
ees who had been out on a longterm illness, holiday pay for
employees out on workmen’s compensation, time limits on
scheduling of grievance meetings, pay for grievance-commit-
tee members for time spent during grievance meetings, a reg-
ular schedule for grievance meetings, only one grievance to
be arbitrated at a time, cancellation of insurance for strikers,
elimination of maternity benefits, and vacation pay for retir-
ees. Also as of the end of negotiations on October 4, Re-
spondent had agreed to the Union’s proposals as to posting
of temporary transfers, notification of employees regarding
vacation schedules, and inclusion of time spent pursuant to
subpoena as time worked for overtime and disciplinary pur-
poses. Still as of the end of negotiations on October 4, Re-
spondent had dropped its initial proposals as to the time per-
mitted employees to decide whether to ‘‘bump’’ or be laid
off, retention of prior wage rate by employee who elected to
‘‘bump,’’ loss of seniority for employees out on workmen’s
compensation, deletion of double time for work in excess of
11 hours a day, and elimination of definition of recognized
holiday.
As of the beginning of the bargaining session on October
4, the parties remained in dispute as to matters discussed,
infra, part II,A,3,d, and e.
b. Events at the meetings through September 16
The 10 meetings held on or before October 4 consumed
about 50 hours, including caucuses and lunchbreaks.6 As pre-
viously noted, at the first meeting, which consumed about 2-
3/4 hours, Pearson told Respondent that he was saying ‘‘no’’
to Respondent’s loser-pays-all proposal. At the second meet-
ing, on August 26, which consumed about 6 hours including
a caucus and a lunchbreak, Pearson stated that as to this pro-
posal his answer was, ‘‘No. We lose too many.’’ At most,
this proposal was merely mentioned at the third meeting, on
August 30, which consumed about 5-1/4 hours including a
caucus and a lunchbreak.7 At the fourth meeting, on Septem-
ber 1, which consumed 4-1/2 hours including a lunchbreak,
the parties went through the remaining unresolved issues.
When they reached the loser-pays-all proposal, Hoelscher
told the union representatives that this was an ‘‘important’’
proposal and that Respondent was ‘‘serious’’ about it. Re-
spondent said that too many cases were being taken to arbi-
tration and then dropped, and Respondent really felt they
were frivolous. Respondent further said that arbitration was
very expensive, time-consuming, and disruptive. Pearson said
that the decision to go to arbitration was made by him and
not the ‘‘Committee’’; that his answer to the loser-pays-all
proposal was still no, but that this proposal was still open
for consideration.
479J. W. REX CO.
8 This finding is based on Pearson’s testimony and on Iltis’ notes,
which as to this issue contain only the notation ‘‘No’’ for that day.
See supra, fn. 7.
9 My findings in this sentence are based on Iltis’ notes and testi-
mony. Hoelscher testified on cross-examination that he did not re-
member a specific conversation with Kapner away from the bargain-
ing table on this occasion. Accordingly, I do not credit Hoelscher’s
testimony (uncorroborated by Iltis) on direct examination that on that
day, Kapner highlighted the loser pays all issue by asking Hoelscher
and Iltis away from the bargaining table whether Respondent was
‘‘really firm’’ on that issue.
10 The Union believed that the proposal accepted by it included
continuation of a vacation bonus of 7 cents an hour; Respondent in-
tended this proposal to exclude the bonus.
The next meeting, on September 12, consumed more than
4 hours. During this meeting, the Union again said no to Re-
spondent’s loser-pays-all proposal.8 The next meeting, on
September 13, consumed about 5 hours. During this meeting,
Pearson said that he no longer gambled about taking griev-
ances to arbitration; Respondent said that bad cases had pre-
viously been taken to arbitration; Pearson said that the
present grievance committee was different; and Respondent
said that loser-pays-all was on the table because arbitration
is costly and Pearson ‘‘can say he wasn’t party to it.’’ For
the first time during negotiations, a representative of the Fed-
eral Mediation and Conciliation Service, Alex Kapner, was
present. The meetings on September 15 and 16, which each
consumed about 6 hours, were also attended by Kapner.
Pearson’s entries for these two meetings on a photocopied
status sheet given him by Hoelscher contain ‘‘No/no’’ after
the loser-pays-all proposal. Because Iltis’ notes contain noth-
ing about the matter, I conclude that it was discussed only
briefly (see supra, fn. 7).
When the September 16 meeting broke up, Pearson com-
mented that the negotiations had been handled very profes-
sionally and he particularly enjoyed using the worksheets
prepared by Hoelscher. Moreover, one employee member of
the bargaining committee stated that he had found the nego-
tiations to be enjoyable and educational, and another member
commented that he hoped ‘‘we had all learned more commu-
nication.’’
c. The membership’s rejection of Respondent’s ‘‘final
offer’’ of September 16; the strike
The Union’s internal procedures require its negotiators to
submit to the membership any proposed contract which the
employer has described as its final offer. During the Septem-
ber 16 bargaining session, Respondent told the Union, ‘‘this
is our last, final offer . . . there is no more.’’ On September
17, Pearson submitted Respondent’s September 16 proposal,
including the loser-pays-all proposal, to the membership,
without any recommendation from him or the committee one
way or the other. The membership overwhelmingly rejected
the proposal, for reasons not shown in the record. Pearson
relayed to the membership Respondent’s statement, at the
September 16 meeting, that Respondent was willing to let the
employees continue to work while negotiations continued,
provided Respondent received 2 hours’ notice of any strike.
The employees voted against continuing to work. On Sep-
tember 17, 1988, all of the about 60 employees in the bar-
gaining unit went out on what the parties agree was a pro-
tected economic strike.
d. The October 3 and 4 meetings
The next meeting, called by FMCS Representative Kapner,
was held on October 3, and lasted about 5-/1/2 hours. The
parties’ presentation to Kapner about their respective posi-
tions made it clear that the loser-pays-all proposal was still
on the table, but at the meeting there was little comment
about it.9
The next bargaining session was held on October 4, 1988,
and was also attended by FMCS Representative Kapner. Ini-
tially, the parties discussed a union suggestion to look into
a multiemployer pension plan, which Respondent said was
‘‘really not feasible . . . at this point.’’ Then, Respondent
orally described its still-pending September 16 proposals
with respect to wages, seniority, accident and sickness insur-
ance, pay for employees who participated in grievance meet-
ings, funeral leave, and the loser-pays-all proposal. As to this
last proposal, Pearson said no. After what Iltis testimonially
described as a ‘‘lengthy discussion’’ of Respondent’s senior-
ity proposal and then a union caucus, the Union agreed to
accept Respondent’s proposals as to seniority, pay for griev-
ance meetings, funeral leave, and (the parties believed)
wages.10 In addition, the parties reached agreement as to ac-
cident and sickness insurance. Respondent rejected the
Union’s proposal, which was still on the table, permitting
employees to ‘‘bid down’’ on vacancies, but, after caucusing,
agreed to the Union’s proposal regarding notification of rule
changes.
At this point, the Union asked Respondent to provide in
writing, for the parties’ signature, the tentative agreements on
seniority, funeral leave, and accident and sickness insurance.
Respondent’s negotiators said that they would have to go to
to Respondent’s office for this purpose, and would return in
about 20 minutes. The time was then 11:40 a.m., and the
parties had been meeting for about an hour.
An hour or an hour and a half later, Kapner telephoned
Hoelscher and urgently asked, in effect, why he and Iltis had
not returned. Kapner said that the union representatives were
‘‘anxious. They are sitting here.’’ Hoelscher told Kapner to
tell the union representatives to go out to lunch, and that he
and Iltis would work through the lunch period and would be
‘‘right back.’’ Hoelscher testified, in effect, that before re-
turning to the negotiating table that afternoon, he and Iltis
told Rex that the parties had come to an agreement.
At 2:15 p.m., Respondent’s negotiators returned with 13
sets of papers calling for the parties’ signatures. Each set of
papers included language covering a different bargaining
subject. These ‘‘sign-off’’ sheets included the tentative agree-
ments (with respect to seniority, funeral leave, and accident
and sickness insurance) which the Union had asked Respond-
ent to reduce to writing; the parties’ tentative agreement that
day regarding notice to the grievance committee of any new
rules and regulations; calendars indicating the paid holidays
for each of the 3 years contemplated by the parties as the
effective period of the contract; two memoranda of under-
standing with respect to rotation within a classification and
payment of accrued vacation; and a document which in-
cluded an arbitration provision with Respondent’s loser-pays-
all proposal underscored. Iltis testified that as to certain sub-
jects, she and Hoelscher had prepared ‘‘sign-off sheets’’ not
requested by the Union because, upon conferring at Respond-
480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 The testimony of Hoelscher and Iltis indicates that ordinarily,
Pearson would hand out copies of prepared sign-off sheets to his
committee, who would put them aside until they could be discussed
amongs themselves.
12 This finding is based on Iltis’ testimony. For demeanor reasons,
I do not accept Hoelscher’s uncorroborated testimony that he replied,
‘‘Mr. Rex feels every bit as strongly as the Union obviously does.’’
13 My findings in this sentence are based primarily on Rex’s testi-
mony. He did not recall what the ‘‘small issues’’ were, and she did
not testify to mentioning any issues other than loser-pays-all.
14 This finding is based on Hoelscher’s and Iltis’ testimony and her
notes. Because the unsigned sign-off sheet calls for funeral leave
with respect to both stepchildren and stepparents, I believe Pearson
was mistaken in testifying that as of the end of the October 4 meet-
ing, the inclusion of one of these classes of relatives was still an
ent’s office, ‘‘we realized that there were several issues that
we . . . did not really have language written on and needed
to write it.’’ Hoelscher testified to the belief that when he
and Iltis drafted the sign-off sheets, they set forth agreements
which the parties had in fact reached.
Respondent gave Pearson several copies of each of the
sign-off sheets in the order in which their subjects appeared
in the expired contract. As to the first few sheets, which had
been requested by the Union, he glanced at each and then
laid them aside.11 Then, Respondent gave him copies of the
sheet which contained the arbitration provision, with Re-
spondent’s proposed loser-pays-all language underlined. Pear-
son, who had twice rejected this proposal earlier that day and
before Hoelscher and Iltis had repaired to the plant to draft
the sign-off sheets, said, ‘‘No, I am not accepting this.’’
Hoelscher said that as to this matter, Respondent’s proposal
was the same that it had always been. Raising his voice and
engaging in actions which at least suggested he was about
to leave, Pearson said, ‘‘I told you that I am not going to
accept it . . . let’s go fellows,’’ and accused Respondent of
bargaining in bad faith. Hoelscher denied this, whereupon
Pearson said, ‘‘I read off to you what we would accept. I
said no to the arbitration expenses. It will be no. Everything
else is OK.’’ Hoelscher said that Pearson should calm down
and go through the rest of the sign-off sheets to see whether
there was anything else that the Union was not going to
agree to. Then, Hoelscher gave the Union the rest of the
sign-off sheets, the two proposed memoranda of understand-
ing, and the sets of calendars which showed the paid holi-
days for the 3-year period which (the parties anticipated)
would be covered by the contract under negotiation.
After some discussion of the sign-off sheets with respect
to seniority and funeral leave, Pearson said that the Union
could not go with the loser-pays-all proposal. Employee Wil-
liam C. Stotsenburgh III, a member of the employee nego-
tiating committee, said that Respondent was now dealing
with a different grievance committee. Respondent replied,
‘‘Maybe we’ll have the old committee back in three years.’’
Pearson stated that it was he who decided which cases went
to arbitration, and ‘‘If it has no merit, I don’t take it.’’
Stotsenburgh stated that he had no intention of wasting time
on frivolous grievances. At this point, the parties caucused
in order to give the Union an opportunity to go over the
sign-off sheets, and related material, presented by Respond-
ent.
When Hoelscher and Iltis went out into the hall, they were
joined by Kapner, who asked if Respondent was serious
about the loser-pays-all proposal. They replied that Respond-
ent ‘‘certainly was’’ serious.12 Iltis then left the others in
order to telephone Rex about the status of the negotiations.
Hoelscher testified, without contradiction or corroboration,
that after Iltis left to telephone Rex:
I said [to Kapner] there is no sense my calling Mr. Rex
because I know his opinion [about ‘‘loser-pays-all’’]. I
talked to him about it this morning. I talked to him
about it yesterday and it is firm. [Kapner] said you
know this really is an International problem for [Pear-
son; see infra, part II,A,3,f] and I said I understand that.
Hoelscher further testified that during the early part of the
negotiations he understood that to agree to loser-pays-all
Pearson would first have to get someone else to agree; but
that by the time of the October 4 conversation with Kapner,
Hoelscher had concluded that the employee committee or
Pearson’s superiors had told him he had to ‘‘stand firm on
loser-pays-all.’’
Rex testified that when Hoelscher and Iltis had returned to
the office earlier that day to prepare the sign-off sheets, Rex
was under the impression that Respondent and the Union had
come to an agreement. In Iltis’ telephone conversation with
him during the caucus break, she stated that there was no
agreement, that some issues were still outstanding, that the
primary issue was loser-pays-all, and that there were a ‘‘cou-
ple of small issues.’’13
Iltis testified to telling him that ‘‘what was holding up the
agreement was this loser pays all issue’’ and to asking him
whether he was still firm about maintaining this proposal.
She further testified that he said yes, because ‘‘he felt that
this was the only way to discourage the frivolous grievances
going to arbitration.’’ Because the foregoing testimony by
Iltis was not corroborated by Rex, and for demeanor reasons,
I do not credit such testimony by her. Iltis further testified
that upon her return to Hoelscher and Kapner, who were still
standing in the hall, Kapner asked why Respondent was ‘‘so
adamant’’ on the loser-pays-all issue; that she said the arbi-
tration cases were ‘‘just too time-consuming and disruptive
and expensive;’’ and that Kapner said Pearson had told him
this was an International issue and Pearson did not have the
authority to agree to Respondent’s proposal. On timely ob-
jection, Iltis’ testimony was not received to show the truth
of Kapner’s alleged representations to Iltis and Hoelscher.
Because Hoelscher did not corroborate her testimony about
this alleged conversation between them and Kapner, because
any such representations by Pearson to Federal Mediator
Kapner would have been inaccurate (see infra, part II,A,3,f),
and for demeanor reasons, I do not believe her testimony that
Kapner made such representations.
After the Union returned from its caucus, both parties ini-
tialed all the holiday calendars presented by Respondent;
signed the sign-off sheets with respect to notice of rules and
regulations, seniority, and insurance; and signed the memo-
randa of understanding regarding accrued vacation for sepa-
rated employees and rotation of heat treaters. The Union re-
fused to sign the funeral leave sign-off sheet, on the ground
that the Union had understood the agreement to call for 4
days’ leave as to stepchildren whereas the sign-off sheet
specified 3; Respondent undertook to consult its notes re-
garding this matter.14 In addition, the Union refused to sign
481J. W. REX CO.
open issue. Hoelscher credibly testified that the sign-off sheet con-
formed to his worksheets.
15 International District Director Reck is Pearson’s immediate su-
perior. Pearson also reports, ‘‘in a sense,’’ to Vogel, who is the as-
sistant to the district director.
16 The quoted material is from the transcript pages cited by Re-
spondent in support of its assertions, in its opening brief (p. 38, em-
phasis in original):
In fact, Mr. Pearson testified that his superiors specifically in-
structed him, before the 1988 negotiations commenced [in Au-
gust 1988], that he should NOT agree to the ‘‘loser pays all
provision.’’
Similarly, the Union sought the Company’s agreement on a
new method to calculate and deduct union dues from the em-
ployees’ paychecks. Mr. Pearson was specifically instructed by
his superiors to obtain this concession from the Company.
Respondent’s reply brief (p. 12) also cites these transcript pages,
inter alia, in support of its assertion (emphasis in original):
Mr. Pearson testified that prior to the onset of the negotiation
sessions, he received specific instructions from his superiors
[that] the Union should not agree to a ‘‘loser pays all’’ proposal.
At the hearing, Respondent’s counsel stated that he had not argued,
and did not intend to argue, that the loser-pays-all issue could not
have been resolved because Pearson’s superiors would never have
agreed to such a clause. Respondent’s counsel further stated that he
did not intend to argue that the Union in fact had an International
Continued
the sign-off sheet regarding loser-pays-all. Nor did the parties
sign the sign-off sheet as to checkoff; Hoelscher testified that
‘‘we didn’t sign that off because [Pearson] said hey we are
going to work it out, but I . . . don’t want to sign something
until we both agree and I accepted that from [Pearson] that
that wasn’t a problem that we could resolve that’’ (see infra,
part II,A,2,e).
Hoelscher testified that after the October 4 meeting broke
up, he and Iltis told Rex that the parties had not come to an
agreement. Hoelscher further testified to the opinion that as
of that date, he believed the parties to be ‘‘hopelessly dead-
locked’’ because of the loser-pays-all issue.
e. Negotiations regarding the checkoff clause
Among the sign-off sheets which were not executed on
October 4 was a company proposal with respect to the
checkoff clause. Included in the agreement which expired in
September 1988 was a checkoff clause which stated, inter
alia, ‘‘The Company shall promptly remit any and all
amounts so deducted to the International treasurer of the
Union, who shall notify the Company in writing of the re-
spective amounts of the dues and initiation fees which shall
be so deducted.’’ When the parties began the 1988 negotia-
tions in August, neither party proposed any changes in the
checkoff clause. At that time, Respondent was computing the
amount due, which consisted of double the average hourly
rate.
On an undisclosed date in 1987 or in 1988 before Septem-
ber, the International made in its dues structure certain
changes (effective February 1, 1989) which Pearson was
testimonially unable to explain in full, and which made more
difficult the calculation of how much each employee owed.
The new dues structure required at least two, and perhaps
three, calculations for every employee. A letter (inferentially
from the International) which set forth the new dues struc-
ture, and examples of the new calculations, were given to
Respondent by Pearson during the bargaining session on
September 12, 1988. The computers used by Respondent in
connection with payroll deductions were incapable of per-
forming the calculations required to determine the amounts
to be deducted under the new dues structure. Probably on
September 16, and certainly before October 4, Respondent
submitted to the Union a proposal to change the old checkoff
language by substituting the word ‘‘specific’’ for the word
‘‘respective.’’ Pearson testified that on October 4 this pro-
posal was unacceptable to the Union because (he believed)
Respondent was proposing that the amounts to be deducted
would be determined by ‘‘our financial officers,’’ and ‘‘they
were not capable of doing that.’’ A sign-off sheet prepared
by Respondent on October 4 stated, ‘‘The method of deduct-
ing Union Dues beginning February 1989 will be mutually
agreed upon by the parties.’’ Although Iltis testified that on
October 4 the Union agreed to this company proposal, it was
not signed by the parties on that day; as previously noted,
Hoelscher testified that Pearson said the parties were going
to work it out but he did not want to sign something until
they agreed. Pearson testified that as of October 4, 1988, it
was ‘‘probably’’ difficult to try to work out something that
could satisfy both parties on the checkoff issue. Hoelscher
testified that the issue ‘‘was a mechanical one. I don’t think
Mr. Pearson or I ever thought that either of us would take
a strike on that issue. It just was something that neither of
us knew how to resolve, but we always felt that we could
in fact resolve that. Some way we would make adjustments
until there could be a way.’’ Hoelscher further testified that
on a date he was not asked to give, the parties agreed that
Respondent’s ‘‘computer guy’’ would call up someone in an
appropriate union staff position to try to work out a method
for making the deduction.
f. Pearson’s instructions from the International about
the loser-pays-all and checkoff clauses
Pearson testified that when he told Respondent that his re-
fusal to agree to the loser-pays-all clause was a matter of
International policy, he based this statement ‘‘on the fact of
all the contracts I had over the years [he has been an Inter-
national staff representative since 1979], we never had one
where loser pays in arbitration.’’ He further testified as fol-
lows:
Q. Henry, during the fall of 1988 did you receive
any specific instructions from John Reck or John
Vogel15 about what you could or couldn’t agree to in
the Rex negotiations?
A. No, I didn’t receive any special instructions of
what I could or could not agree to, but there were cer-
tain things that I shouldn’t agree to if I could get
around it.
. . . .
There were certain things that—well, a couple of
things that probably I shouldn’t agree to if I could get
around negotiating the contract without.
Q. Okay, and who told you that?
A. John Reck.
Q. Okay. And what did he tell you to try to avoid
agreeing to?
A. Loser paying arbitration is one. The dues struc-
ture. That is about all.16
482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
policy against loser-pays-all, except to the extent of what Pearson
said his understanding was between August 18 and November 14.
17 Rather similarly, Iltis testified that during this period, ‘‘we did
any job that we were told . . . There were no grievances or no com-
plaints.’’
18 My findings as to this Hoelscher-Pearson conversation are based
on Pearson’s testimony. For demeanor reasons, I do not accept
Hoelscher’s denial that this Hoelscher-Pearson-Kapner meeting took
place. In view of the contents of Hoelscher’s remarks during these
two incidents, I infer that his telephone conversation with Kapner
came first. A mid-October date was given by Hoelscher as to the
telephone conversation with Kapner, and by Pearson as to the three-
man conference.
19 I infer from the contents of Hoelscher’s communication with
Kapner about October 20 and of the Hoelscher Pearson conversation
that the Hoelscher- Pearson conversation occurred first. The testi-
mony of Rex and Iltis indicates that Hoelscher erroneously attached
too a late a date (October 25) to his instructions from Rex to de-
velop contract language which would enable Respondent to operate
the plant the way Respondent was doing it during the strike.
Hoelscher credibly testified, in effect, that before mid-October Rex
said that Respondent should not give any across-the board increases,
and that anything Respondent gave should be tied to productivity.
20 This finding is based on Hoelscher’s testimony, received without
objection or limitation.
Hoelscher testified that when Kapner told him that loser-
pays-all was an ‘‘International problem’’ for Pearson,
Hoelscher understood that Pearson ‘‘on his own hook could
not make a decision to go along with it.’’ Iltis testified that
by ‘‘an International issue,’’ she understood that Pearson
‘‘did not, by himself, have the authority to agree to that pro-
posal.’’ Pearson testified that whether or not he would have
agreed to such a proposal ‘‘depends on how the negotiations
would have went.’’
As previously noted, Pearson submitted to the member-
ship, who rejected it, Respondent’s September 17 proposal,
which included Respondent’s loser-pays-all proposal and,
probably, Respondent’s checkoff proposal as well. Before
this vote was taken, Pearson told the membership what Re-
spondent wanted, including the loser-pays-all clause, and
what the benefits were. As described infra, part II,E, Pearson
later submitted to the membership, who rejected it, Respond-
ent’s November 7 proposal, which included both clauses.
Pearson made these submissions, in both cases without rec-
ommendation one way or the other, because Respondent had
characterized them as final offers and International policy re-
quires submission of such offers to the membership. Pearson
testified that if approved by the membership, either of such
proposals would have become a binding contract. Iltis testi-
fied to a belief that this would have been the result of mem-
bership approval.
B. The Preparation of Respondent’s Contract Proposal
of November 7, 1988
As previously noted, all of Respondent’s approximately 60
unit employees struck on September 16, 1988. The Union
did not request reinstatement of the strikers until November
16, 1988 (see infra, part II,F). Respondent continued to oper-
ate the plant during this entire period, and while recalling
strikers on various effective dates on and after November 29,
1988. Until about November 15, when Respondent hired 2
permanent replacements, Respondent was operating the plant
24 hours a day and 5 days a week, with about 22 manage-
ment, administrative, and clerical personnel, all of whom
worked at least 12 hours a day, and with 10 or 12 temporary
employees, some of whom worked shifts shorter than 12
hours. Using this work force, Respondent found itself able to
meet customer deliveries and to equal or better prestrike out-
put, although, according to Rex, ‘‘most of us could hardly
stand up during that period of time.’’ During this period, any
individual could be assigned to perform any job required.
During a series of meetings with Iltis and Hoelscher after
October 4, 1988, Rex attributed Respondent’s prestrike prob-
lems principally to the work rules and other restrictions con-
tained in the expired collective-bargaining agreement. He in-
structed Hoelscher and Iltis to redraft Respondent’s proposals
in a way which would allow the plant to be operated with
the sort of increased flexibility which was being exercised
during the strike, and with an incentive, comparable to that
shared by the personnel who worked during the strike, to
generate sales for Respondent. During these discussions, Rex
said that 22 people were working at the plant, with no griev-
ances, and Respondent was able in general to meet its deliv-
ery commitments.17 When asked on redirect examination
about such comments, Rex testified that he had no difficul-
ties with employees’ right to grieve problems, that successful
companies (whether union or nonunion) had to afford em-
ployees the ability to express dissatisfaction or concern, and
that ‘‘What I get upset about are the frivolous grievances.
The ones that happen over and over again, with the same
issues.’’
About mid-October, Kapner telephoned Hoelscher. Kapner
said that he had not talked to anyone from the Union, and
asked whether there was any change in the parties’ positions.
Hoelscher replied that ‘‘keeping any economics on the table
was getting tougher and tougher.’’ A few days later (see
infra, fns. 18–19), at a Hoelscher-Pearson meeting arranged
and attended by Kapner at which arrangements for another
negotiating session were discussed, Hoelscher said that he
was ‘‘coming back with a brand new contract’’ and that ‘‘it
was going to be a brand new ball game.’’ Pearson told
Hoelscher to ‘‘bring it out and let us see it.’’18 A few days
later, about October 20, Hoelscher told Kapner that Respond-
ent’s last offer had been withdrawn. Hoelscher further said
that the persons who were operating the shop were tired of
working 12-hour shifts, and Respondent was about at the
point where it was going to have to hire replacement work-
ers.19
Thereafter, Kapner telephoned Hoelscher that Kapner had
not had a request from either party, so he was calling a
meeting just to see what was going on on.20
C. Bargaining Negotiations on November 7, 1988
1. Introductory remarks by Hoelscher
The parties met again on November 7, 1988, their first
meeting since October 4. Kapner began the November 7 bar-
gaining session by stating that he had called the meeting
since neither party had requested to meet and the strike had
gone on for some time. Hoelscher asked Pearson whether he
had any change in position, or anything to offer; Pearson
said no. Then, Hoelscher stated that Respondent’s previous
offer was off the table. He said that during the strike, Re-
483J. W. REX CO.
21 My finding in this sentence is based on Pearson’s testimony. He
and employee committeeman Lucien Hendricks denied Hoelscher’s
testimony on direct examination that he said, ‘‘Nothing is written in
concrete or granite or whatever term you want to use that the goal
is the important thing.’’ For demeanor reasons, I credit Pearson and
Hendricks.
Pearson also, in effect, denied Iltis’ testimony that Hoelscher said
Respondent would be willing to talk about any changes which the
Union might wish to make which would be of major consequence.
Because Iltis improbably characterized this as an explanation of
Hoelscher’s statement that Respondent’s November 7 proposal was
its last, best, and final offer, I do not believe that portion of her tes-
timony described in this footnote.
22 Under the expired agreement, seniority was broken after a speci-
fied period of absence for noncompensable disabilities. Respondent’s
August 1988 proposal sought like treatment of absence for compen-
sable disabilities. However, by the end of the October 4 meeting this
proposal had been dropped.
spondent had learned a lot of things having to do with flexi-
bility and efficiencies and better ways to run the plant. He
stated that Respondent wanted to present its ‘‘last, best and
final proposal,’’ which Respondent hoped the Union would
consider and sign. Hoelscher said that his proposal had many
changes reflecting the knowledge which Respondent had ac-
quired during the strike.
Then, Hoelscher gave the Union copies of a complete pro-
posed agreement drafted by Respondent. He stated that Re-
spondent had made a lot of changes; that some were not as
drastic as they might appear; and that others had changed a
lot. He went on to say that probably 95 percent of the par-
ties’ previous tentative agreements were as they were nego-
tiated before the strike. Further, he said that a lot of the
‘‘language changes’’ were a result of what Respondent had
learned from running the plant during the strike and what
Respondent felt it needed in order to run the company and
survive as a company in the future. Hoelscher said that he
would go over Respondent’s proposal in detail and, when he
reached particular portions of the proposal, he would explain
the reason, goal, or objective therefor. He said that Respond-
ent would consider proposals by the Union for ‘‘cosmetic’’
changes; he did not explain what he meant by ‘‘cosmetic’’
changes, and the Union did not ask him.21 Then, Hoelscher
proceeded to go over the changes incorporated in Respond-
ent’s proposal.
2. Respondent’s new proposals
Respondent’s proposed contract included certain changes,
with respect to the expired contract, which Respondent had
never proposed before. Thus, Respondent sought to add, to
the management-rights clause in the expired agreement, the
words ‘‘the management of the plant and the direction of the
work force, including the right to hire, discipline, suspend,
or discharge for just cause, to assign to jobs, establish and
maintain standards of quality and quantity, to transfer em-
ployees within the plant, [and] to increase and decrease the
work force.’’ In addition, Respondent sought to amend the
‘‘management work’’ clause in the expired agreement, (1) so
as to permit ‘‘Employees not within the bargaining unit’’ to
perform unit work ‘‘to meet customer requirements when
necessary,’’ and (2) so as to delete provisions which per-
mitted nonunit employees to perform ‘‘classified’’ work ‘‘on
a pilot lot basis only,’’ forbade use of the section to establish
production standards or quotas, and permitted employee
grievances for the time or overtime involved for work per-
formed in violation of that section. Also, Respondent sought
addition of a new provision permitting the hire of temporary
employees for vacation replacements, at a lower minimum
than for regular employees and without seniority rights or
benefits. In addition, Respondent sought to eliminate restric-
tions imposed by the expired contract on its right to make
temporary transfers of employees between jobs. More spe-
cifically, Respondent (1) sought to delete the provisions in
the expired contract which restricted the circumstances under
which Respondent could make such transfers, limited Re-
spondent’s right to select temporary transferees, and afforded
employees certain rights to refuse such transfers; and (2) pro-
posed a provision that a temporary transferee to a higher
rated job than his regular job would be entitled to the higher
rate after working in the higher-rated job for 4 hours (rather
than two, as called for by the expired contract).
Also, Respondent proposed a provision shortening the time
period within which employees who wished to retain their
seniority had to appear for work upon recall from layoff,
stating that such period was to begin to run on the date of
mailing of certified mail or mailgram (rather than receipt, as
provided in the expired agreement), and also permitting tele-
phone notification; ‘‘[s]uch notification shall conclusively be
deemed to have been received.’’ Further, Respondent pro-
posed to shorten the period during which an employee could
be absent without breaking seniority, and to delete the provi-
sion that absence for any length of time due to a compen-
sable disability incurred during the course of employment
would not break seniority if the employee returned to work
within 30 days after final payment of statutory compensa-
tion.22 Also, Respondent proposed a provision that Respond-
ent had the right to recall striking employees after the effec-
tive date of the agreement without regard to seniority, and
that employees not recalled at the end of the current strike
would not be entitled to displace ‘‘replacement workers.’’
Further, Respondent proposed deletion of sentences in the
expired agreement calling for continuance of regularly sched-
uled shifts, ‘‘as in the past,’’ and for negotiation with the
Union regarding any deviation from the normal starting time.
In addition, Respondent sought to delete a provision in the
expired agreement that nobody would be required to work an
unreasonable amount of overtime. Further, Respondent
sought to cut the number of hours’ work guaranteed to em-
ployees who were called back to work after completing their
regular shift or called in to do emergency work on holidays
or weekends, and to delete language which at least implied
that such employees could decline to perform work which
had not led to the call-back or call-in. In addition, Respond-
ent proposed new limitations on employees’ right to receive
holiday pay, and proposed the option of providing compen-
satory time off rather than double time (in addition to holi-
day pay) to employees who were required to work on a holi-
day. Also, Respondent proposed shorter vacations for em-
ployees with less than 6 months’ service and the absolute
right to require work, and pay in lieu of time off, instead of
a fourth or fifth week of vacation. In addition, Respondent
sought the final and exclusive right to allot vacation periods
and to change such allotments. Also, Respondent proposed
484 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 Respondent had never before used part-time employees. Iltis tes-
tified that Hoelscher said the language of the expired agreement to-
gether with the language of the proposal already permitted Respond-
ent to hire part-time employees. Although she testified that she
‘‘probably would have considered’’ any such comments as signifi-
cant or important, and that she tried to include significant or impor-
tant things in her notes, her notes do not include such comments.
Accordingly, in the absence of corroboration and for demeanor rea-
sons, I do not believe her testimony about such remarks by
Hoelscher.
24 Namely, an undertaking by Respondent to notify the Union prior
to subcontracting and prior to issuing new rules and regulations; a
clause providing for shift preference; deletion of a clause in the ex-
pired contract affording employees the right to opt for voluntary lay-
off, without loss of seniority or of recall rights, rather than bumping;
a clause with respect to overtime equalization; a clause regarding ac-
tive employees’ claim to jobs from which they had been bumped;
recall of laid-off employees; identity of paid holidays; inclusion of
certain absences in time worked; grievance procedure; and insurance
coverage of separated employees.
25 This finding is based on Iltis’ notes, partly corroborated by her
testimony.
26 My finding as to the point during this meeting when Hoelscher
referred to the planned letter is based on Iltis’ testimony and notes.
Particularly because of these notes, I believe Hoelscher was mistaken
in testifying that he referred to the letter before describing Respond-
certain changes in the date on which employees were entitled
to be paid their vacation pay.
Further, Respondent proposed a ‘‘job evaluation’’ clause
under which Respondent could develop a new job description
and wage rate, and could put that wage rate into effect after
explaining it and the job description to the Union; but if the
wage rate was installed without the Union’s agreement, the
affected employees could file under the contractual grievance
procedure an unarbitrable grievance alleging that ‘‘the job is
improperly rated.’’ In addition, Respondent proposed the de-
letion of a memorandum of understanding regarding assign-
ment and rotation of heat treaters, and the deletion of letters
of intent regarding rotation of transferees and continuation of
starting up and shutting down equipment ‘‘as has been and
is presently being done.’’ In addition, Respondent proposed
to reduce to 5 the 22 labor grades called for in the expired
agreement, to specify a minimum rate for each, and Re-
spondent ‘‘at its sole discretion, may grant merit increases in
addition to the minimum rates specified above. Group leaders
will receive a minimum of $.25 per hour over the classifica-
tion they lead.’’ The lowest of these proposed minimums for
the respective labor grades was 10 cents an hour lower than
the lowest rate called for by the expired agreement; the high-
est of these proposed minimums was lower than the rate
called for by the expired contract for the seven highest labor
grades. In addition, Hoelscher said that Respondent had pro-
posed a profit-sharing plan, but that the Union had wanted
to look at the books, and, therefore, Respondent was instead
proposing a sales bonus plan ‘‘for all eligible employees
after the Company’s gross sales exceed a predetermined
‘floor’ amount.’’ Also, Hoelscher said that Respondent was
‘‘considering,’’ as ‘‘one more thing’’ which was not in Re-
spondent’s written proposal, a proposal for the use of part-
time employees, who would be subject to the union-shop
clause and accrue partial seniority, but would not be entitled
to benefits, except pension benefits if they worked more than
1000 hours.
During this presentation, Hoelscher stated that Respondent
had proposed combining job classifications, and increasing
Respondent’s right to make temporary transfers, because Re-
spondent had found that making temporary transfers under
the expired agreement was too time consuming. He further
stated that Respondent had proposed the use of part-time em-
ployees because, prior to the strike, it had been almost im-
possible to hire good employees even at the rate Respondent
was paying, and Respondent hoped it could obtain such em-
ployees by using employees with full-time jobs elsewhere or
women with children.23
3. Respondent’s proposals which had previously been
dropped or compromised
Respondent’s November 7 proposal also included some
proposals which during earlier 1988 negotiations Respondent
had either dropped or compromised. Thus, Respondent
sought to reduce from 36 to 24 hours the period within
which an employee could exercise his bumping rights, and
remove a provision entitling an employee who had bumped
into a lower paying job to receive for 30 days the rate asso-
ciated with his old position. Also, Respondent proposed the
elimination of double time after 11 hours of work on 1 day;
and the elimination of a fifth week of vacation for employees
with over 25 years of service (with the newly proposed ex-
ception that employees who were already receiving a 5-week
vacation would continue to do so). Further, Respondent re-
duced the amount of accident and sickness benefits it had
previously offered to provide. In addition, Respondent with-
drew its previous proposal, to which the Union had agreed,
to add stepchildren, and parents or stepparents but not both,
to the relatives for whose death paid funeral leave was given.
4. Other proposals by Respondent
In addition, Respondent’s proposal included some changes,
in clauses included in the expired contract, to which the par-
ties had agreed in earlier 1988 negotiations,24 and at least
one clause which during such negotiations the Union had
previously proposed but later dropped—namely, shortening
the period of service necessary to qualify for fringe benefits.
As to checkoff, Respondent’s proposal was the same as its
pre-October 4 proposal. As to arbitration, Respondent’s pro-
posal included certain changes already agreed to, and also
the loser-pays-all proposal. When Hoelscher reached the
loser-pays-all proposal, Pearson said, ‘‘It won’t be agreed
to,’’ and Hoelscher said, ‘‘I understand.’’25
5. Remarks after Hoelscher’s presentation
After concluding his review of these proposed changes,
Hoelscher expressed a hope that they would be acceptable to
the Union’s membership. He said that because newspaper ar-
ticles and advertisements had led Respondent to believe that
some of the employees might be unaware of or misunder-
stand Respondent’s proposal, Respondent was going to send
to all the employees a letter summarizing the proposed
changes.26 He further stated that the strike had lasted for 7
485J. W. REX CO.
ent’s proposal. Although his testimony is consistent with his own
notes, such notes are much sketchier than hers.
27 My findings in these two sentences are based on Iltis’ notes and
her and Hoelscher’s testimony. In view of such notes, I do not credit
Pearson’s denial. Heil and Lucien Hendricks were unable to recall
any discussion of loser-pays-all on that day.
28 My findings as to Respondent’s statements about pay for return-
ing strikers are based on Iltis’ notes and testimony, which as to Re-
spondent’s allegedly planned pay policy contain the same assertions
as a letter which Rex sent to the employees 2 days later (see infra,
part,II,D) and Respondent’s representations to the Union during the
November 14 bargaining session (see infra, part II,E). Respondent
did not in fact follow this policy (see infra, part II,H,L). Although
Hoelscher testified that Respondent did not intend to pay a returned
striker at least his prestrike rate unless he came back to his old clas-
sification, Hoelscher admitted that Respondent did not so advise the
Union. Cf. infra, fn. 55.
29 Rex testified that this paragraph was an expression of the same
type of frustration which led to Respondent’s loser-pays-all proposal.
30 This finding is based on Hoelscher’s testimony and on Iltis’ tes-
timony and notes. Although stating that the Union ‘‘eventually’’ ac-
cepted Respondent’s proposal for a sales bonus plan, Respondent’s
opening brief states that Pearson ‘‘initially indicated’’ rejection (pp.
12–13). In support of this latter assertion, that brief relies on pp. 276
and 883 of the transcript. Page 276 includes Iltis’ testimony that
Pearson ‘‘stated that his proposal was no wage increase and institute
the Sales Bonus Plan to see how it works.’’ Page 883 includes
Continued
weeks, that Respondent’s personnel were tired of working
12-hour shifts, and that unless the Union accepted Respond-
ent’s proposal, Respondent would later that week begin to
hire permanent replacements for the strikers. Hoelscher fur-
ther said that if the employees went back to work, ‘‘the su-
pervisory personnel that was in there would still be work-
ing.’’
Pearson remarked, ‘‘With what you’ve given us, the strike
will no longer be an economic one.’’ Hoelscher replied that
‘‘of course’’ the strike remained an economic one, that Re-
spondent had ‘‘the right to change language.’’ Pearson de-
scribed Respondent’s proposal in scatological language, and
said that going through it would take the Union a long time.
Hoelscher said that he would answer any questions. Kapner
suggested that the Union needed more specifics to evaluate
the sales bonus plan, and Hoelscher agreed. Pearson said that
he wanted a copy of Respondent’s proposed bonus plan, and
Hoelscher agreed to supply one. Pearson said that ‘‘even if
we agree to this contract, we can’t agree to loser pays all.’’
Hoelscher replied, ‘‘I understood you told me that was an
International problem,’’ and Pearson agreed that it was.27
Employee committeeman Lucien Hendricks said, ‘‘After
looking at this briefly, some of the things are absolutely ab-
surd for the working man.’’ After discussing various prob-
lems relating to the replacement and return of strikers, the
parties caucused.
During the caucus, Kapner joined Hoelscher and Iltis. He
asked whether they were serious on the loser-pays-all issue.
They replied that Respondent was definitely standing firm on
that. Kapner said that the Union wanted to know whether
Respondent could wait until the following Monday, Novem-
ber 14, before beginning to hire replacements, because the
Union felt it needed additional time to look through the pro-
posal. Kapner also asked whether Respondent could provide
the Union with more specifics on the sales bonus plan.
Hoelscher said that both requests could probably be granted,
but he would have to check with Rex and then call Kapner.
Kapner said that the Union wanted to know the rates Re-
spondent intended to pay the returning strikers. Iltis and
Hoelscher replied that they would be recalled at either their
previous rates or the minimum rate of the job, whichever
was greater; and subject to merit review, based on perform-
ance, which could raise or lower their respective pay. At
Kapner’s request, Iltis and Hoelscher so advised the Union.28
Later that day, Rex advised Hoelscher and Iltis that it would
be all right to hold off hiring replacements until November
14, when another bargaining session was scheduled.
Hoelscher so advised Kapner, and stated that meanwhile,
Hoelscher would try to get Kapner some information on the
sales bonus plan.
D. Events between the November 7 and the November
14 Bargaining Sessions
On November 9, 1988, Respondent mailed to all employ-
ees in the bargaining unit a letter from President Rex. After
stating that Respondent’s sales, profitability, and employment
had diminished, the letter went on to say:
There are ten competitors in the immediate area, mostly
all non-Union, who perform the same services as [Re-
spondent]. They have higher sales productivity and less
labor costs then we have, and they do not endure the
countless hours of nonproductive grievance meetings
and work slowdowns over frivolous issues that we have
endured.29
. . . .
the decision has been made to irreversibly change the
course of this business . . . . We will operate with
much more flexibility in areas such as assignment of
work to the employees we will have . . . .
In keeping with this new direction, the attached sum-
mary sheet outlines the changes proposed in our final
offer to reach an agreement with [the Union]. It is the
last and final offer and the best that can be offered, and
I urge you to consider it carefully and ratify it.
If this final Contract is rejected, we will hire replace-
ment workers who need not be terminated when the
strike is over . . . .
Attached to this letter was a summary of some of Respond-
ent’s proposals which were pending as of the end of the No-
vember 7 negotiating session. This summary also stated that
‘‘Recalled employees will be paid their old rate or the mini-
mum rate of the job to which they are recalled, whichever
is greater’’; this was not in fact done (see infra, part II,H,L).
On an undisclosed date between the November 7 and 14
bargaining sessions, Respondent gave the Union some mate-
rial explaining Respondent’s proposed sales bonus plan.
E. The November 14 Bargaining Session
The November 14 bargaining session began at 10 a.m. The
Union caucused until 10:15 a.m. Then, the Union asserted
that Respondent’s November 9 letter to the employees had
‘‘upset the apple cart.’’ After some discussion of the sales
bonus plan, Pearson stated that the Union was prepared to
forego any wage increase and to try the sales bonus plan to
see how it worked.30 He said, however, that there were some
486 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Hoelscher’s testimony that Pearson ‘‘said we can go with no wages
no wage increase and we can accept the bonus plan. We will see
how that works out . . . .’’
31 During the November 7 bargaining session, Respondent had told
the Union that Respondent did not need all of the 60 bargaining unit
employees who had worked for Respondent before the strike. As of
November 14, no permanent replacements had been hired; a total of
two permanent replacements were hired before the end of the strike.
32 Although the nature of this language is unclear, it may have re-
lated to double time for Saturday work assigned to equalize over-
time.
33 This finding is based on Iltis’ and Hoelscher’s notes, which as
to this matter I regard as more reliable than Pearson’s testimony that
he advanced no objection to this proposal.
34 Except that the Union protested including absences on work-
men’s compensation.
things in Respondent’s proposal that the Union could not live
with. Hoelscher said that rather than give the Union a ‘‘quick
no’’ he would like to see if the Union’s proposals were sub-
stantive or cosmetic. Iltis and Hoelscher testified that, in sub-
stance, Hoelscher explained that Respondent would not alter
its ‘‘objectives’’ and ‘‘goals’’ (such as moving people expe-
ditiously around the plant), but would consider union propos-
als directed to meeting such goals in another way. In the ab-
sence of contradiction, I credit their testimony in this respect.
Pearson began his response by rejecting Respondent’s new
proposal that ‘‘Notwithstanding any other provision in this
Agreement to the contrary, the Company shall have the right
to recall striking employees after the effective date of this
Agreement without regard to seniority. Employees not re-
called at the end of the strike . . . shall not be entitled to
displace replacement workers.’’31 Pearson also stated that the
checkoff matter was still up in the air. Then, he went through
Respondent’s remaining proposals in chronological order.
As to Respondent’s revived proposal to eliminate certain
provisions for double time after 11 hours of work on a single
day, the notes and testimony of both Iltis and Hoelscher state
that Pearson’s comments as a whole left them uncertain as
to whether he was accepting or rejecting this proposal. There
is no evidence that Respondent asked him to clarify his posi-
tion. Pearson asked questions, without expressing acceptance
or rejection, about the new proposal regarding use of tem-
porary employees for vacations, and the proposed new job
evaluation clause. Pearson gave mumbling comments, which
Hoelscher and Iltis could not understand, with respect to the
newly proposed deletion of language calling for continuation
of regularly scheduled shifts; there is no evidence that they
asked him to repeat his comments. Pearson expressed opposi-
tion to the newly proposed management work clause; to Re-
spondent’s new proposal to change from 2 hours to 4 hours
the period during which a temporary transferee had to work
at a higher rated job before being paid the higher rate, to the
newly proposed deletion of a clause permitting an employees
to reject a temporary transfer so long as a junior employee
was available who could perform the work, to the newly pro-
posed deletion of a clause requiring posting and notification
to the Union of temporary transfers of more than 1 day, and
to the newly proposed provision that an employee on layoff
status would be conclusively presumed to received a tele-
phoned recall message. He objected to the deletion of certain
language from the overtime-equalization clause.32 Also, he
objected to the newly proposed deletion of the language in
the expired contract that no employee would be required to
work an unreasonable amount of overtime; to the newly pro-
posed changes with respect to the expired contract regarding
call-back and emergency call-in (which changes reduced the
minimum hours guarantee and eliminated the employee’s op-
tion to refuse to perform work other than that for which he
had been called); to a proposed withdrawal of all holiday pay
from employees who failed to work their full scheduled
workdays before and after the holiday; to a proposed limita-
tion on the number of paid holidays to employees absent due
to compensable illness or injury; to a proposal that employ-
ees who were required to work on a paid holiday could at
Respondent’s option receive compensatory time off rather
than (in addition to the holiday pay) double time; and to the
elimination, as to employees with less than 20 years’ service
as of June 1988, of a fifth week of vacation after 20 years’
service. The Union stated that Respondent’s proposal as to
the grievance procedure was ‘‘okay’’ except for the loser-
pays-all clause, which was unacceptable; Pearson told
Hoelscher that it was an International policy that there would
be a 50–50 split. Also, Pearson wanted Respondent’s pro-
posed sickness and accident benefits to be increased to $200
a week (the amount to which the parties had previously
agreed beginning the second year of the contract term) from
$180.
As previously noted, the Union had refused on October 4
to sign the sign-off sheet prepared by Respondent as to fu-
neral leave, on the ground that as to the length of the leave
for the death of certain relatives the sheet inaccurately re-
flected the agreement reached during negotiations. Hoelscher
testified that Respondent then told the Union that as to this
matter, Respondent’s representatives would consult their
notes; and he further testified, ‘‘That wasn’t a big issue.’’
The sign-off sheet added stepparents and stepchildren to the
relatives for whose death funeral leave was provided; these
relatives were deleted from Respondent’s November 7 pro-
posal, which as to funeral leave was the same as the 1985–
1988 agreement. When Pearson reached this clause, two
members of the employee bargaining committee (John
Hodum and Gary Kaminski) pointed out this change, and
Hodum said, ‘‘We want step-children.’’
In addition, Pearson questioned the deletion of a memoran-
dum of understanding regarding assignment and transfer of
Heat Treaters A and Heat Treaters B; Respondent pointed
out that its proposed new job classifications did not include
these. Also, as to the proposal that an employee would lose
seniority after an absence of 1 year (or less, if he had less
than a year’s service) for any reason, the Union said that it
could not agree if the clause extended to an employee out
on workmen’s compensation.33
In reviewing Respondent’s proposals, Pearson made little
or no comment as to Respondent’s newly proposed expan-
sion of the management-rights clause, Respondent’s newly
proposed deletions of limitations on Respondent’s right to
make temporary transfers, Respondent’s proposed reduction
from 36 to 24 hours in the period for exercising bumping
rights, Respondent’s new proposal shortening the period of
absence which would cause loss of seniority,34 Respondent’s
newly proposed limitations on the vacation benefits of em-
ployees with less than 15 years of service, Respondent’s
newly proposed changes in vacation pay dates, Respondent’s
487J. W. REX CO.
35 This finding is based on Iltis’ notes, which as to this November
14 statement are undisputed.
36 My findings as to Kapner’s statements to the Union are based
on Lucien Hendricks’ testimony, received without objection or limi-
tation. The testimony of Iltis and Hoelscher about what Kapner told
them does not distinguish between his two visits. Iltis testified that
Kapner said Pearson could accept Respondent’s proposed groupings.
Hoelscher testified that Kapner said the Union was willing to accept
Respondent’s proposed groupings, but not the review process, and
everybody had to maintain his old rate. From the probabilities of the
case, I believe that on both occasions Federal Mediator Kapner con-
veyed the Union’s proposals accurately and completely. However,
there is little materiality to just what he did tell Respondent; see
infra, fn. 37.
37 My finding that Pearson presented his position directly to
Hoelscher and Iltis is based on Iltis’ testimony and notes, partly cor-
roborated by employee committeeman Heil; because of such notes
and demeanor considerations, I do not credit Hoelscher’s testimony
that he and Iltis were advised of the Union’s position through
Kapner alone, or Pearson’s and Lucien Hendricks’ testimony that
Hoelscher and Iltis did not return to the conference room after
Kapner conveyed their second message. My finding as to the sub-
stance of the Union’s expressed position is based on Pearson’s testi-
mony. For demeanor reasons, I do not accept Iltis’ testimony that
at this time, Pearson agreed to the job groupings but said that he
did not want the merit review program, and that she did not ‘‘be-
lieve’’ the Union ever said it would accept a merit review program
if grievances could be filed over individual reviews. As to this mat-
ter, Iltis’ notes state that Pearson said, ‘‘We’ll accept the grouping
as you have it, but no review.’’
38 This finding is based on Hendricks’ testimony, which is indi-
rectly corroborated by Hoelscher’s and Iltis’ testimony about
Kapner’s subsequent remarks to them. Hendricks and Pearson testi-
fied that Kapner expressed agreement with this view. Because any
such opinion by Kapner would as to an ultimate issue in the case
have negligible probative value, I need not and do not determine
whether he so stated.
new proposal affording it the right to allot and change vaca-
tion periods, or Respondent’s newly proposed deletion of let-
ters of intent regarding rotation of transferees and starting up
and shutting down equipment.
Pearson finished his presentation by stating that if the
Union ‘‘got some consideration’’ of its requested changes
and the rates of pay stayed as they presently were, the parties
could possibly come to an agreement. Hoelscher and Iltis
asked whether Pearson’s position meant keeping all 22 of the
existing labor grades. He replied yes, and that he ‘‘couldn’t
accept’’ the job groupings as Respondent had proposed them
or the proposed merit review program. Respondent stated
that during the last meeting, Respondent had told the Union
that each returning striker would come in ‘‘at his old rate,
or the minimum of the new job, but it could go up or down’’
depending on the periodic merit review.35 Pearson said that
the Union did not want the periodic review, because ‘‘some-
one could come in’’ at higher than the new minimum rate
for his job grouping and then have his rate reduced in con-
sequence of the periodic merit review. Hoelscher and Iltis
asked whether the Union’s position was that it did not want
‘‘them’’ reviewed up or down. The Union said yes.
At this point, the parties separated for a 6-minute caucus.
The union bargaining committee agreed, in Kapner’s pres-
ence, that the Union would accept Respondent’s proposed
job grouping, if the Union was allowed to grieve on the
merit review and the grouping. After absenting himself from
the room for a few minutes, Kapner returned and said that
Respondent had rejected this proposal. After that, the union
committee agreed, in Kapner’s presence, that it would accept
the grouping without the grieving, but would not accept the
merit review without the grieving. Kapner again left the
room. On his return, he told the Union that Respondent had
rejected this proposal.36 After another union caucus,
Hoelscher and Iltis returned to the conference room. Pearson
told them that he would accept Respondent’s proposed
groupings, but would accept a merit increase review only if
the Union had a right to grieve it. Hoelscher rejected this
proposal.37 There is no evidence that at this or any other
time, anyone referred to the no-strike clause which had been
included (in the language of the expired contract) in all pro-
posals by both parties, and which does not in terms permit
or forbid strikes as to nongrievable matters.
Hoelscher said that he had told the Union at the November
7 session that this was Respondent’s last and best offer. He
went on to say that the parties should discuss any union-pro-
posed changes which were not of ‘‘great substance.’’ How-
ever, Hoelscher said, most of what the Union had mentioned
was ‘‘very substantive’’ in that in a lot of cases Pearson had
reverted back to the language of the expired agreement; Re-
spondent had learned a lot from the period of the strike; and
Respondent had to have what it had put into its proposal in
some fashion. Hoelscher said that if the Union had any rec-
ommendations on language changes in order to accomplish
Respondent’s objectives, Respondent would certainly be will-
ing to sit and listen, but (referring to the document which
constituted Respondent’s complete proposed contract) ‘‘this
is the contract.’’ Pearson said, ‘‘Well, you know where we
stand.’’ Then, Hoelscher said that Respondent would start
hiring permanent replacements.
At this point, Kapner asked Hoelscher and Iltis to wait in
the hall a minute. After Hoelscher and Iltis had left the con-
ference room, the union representatives, at least, expressed
the opinion that Respondent was not bargaining in good
faith.38 Then, Kapner left the conference room and told
Hoelscher and Iltis that the Union was claiming that Re-
spondent was not bargaining in good faith and thought Re-
spondent had taken everything away. Hoelscher denied tak-
ing everything away, and said that a ‘‘lot of the changes’’
had been previously agreed upon between the parties (see
supra, fn. 24). Hoelscher testified to telling Kapner that the
union representatives ‘‘are not addressing any of our prob-
lems or goals. They are just saying yes or no and it is mostly
no and the alternative proposal is go by the old contract and
that just isn’t going to cut it.’’ Hoelscher went on to testify
to telling Kapner that Respondent was willing to consider
union proposals if they were ‘‘cosmetic. If it is just the lan-
guage or how we get there like if we are going from how
we get there we are willing to bend it, massage it we will
do whatever we have to. We have to have the ability to
move people. We will accommodate other problems they
have, but we have to achieve some of these goals. We have
to run the plant in a new fashion.’’ Hoelscher went on to tell
Kapner, according to Hoelscher’s testimony, that Pearson
‘‘just literally read everything back from the old contract
right back in,’’ and that as to merit review, temporary trans-
fers, temporary employees, and part-time employees, ‘‘all of
the major things they read right back to us was in the old
contract . . . . We want them left in the contract. [The
488 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
39 The record otherwise fails to show what, if anything, the Union
during the November 7 and 14 negotiations said regarding the use
of part-time employees, which Respondent orally mentioned at the
close of its November 7 presentation. As to the Union’s position
with respect to the other issues mentioned in Hoelscher’s testimony,
see supra, part II,E, which findings are largely based on Iltis’ notes
and her and Hoelscher’s testimony.
40 My findings as to the events in the lobby are based on the par-
ties’ stipulation, on a memorandum note which Iltis attached to Pear-
son’s letter, and on a composite of credible parts of the testimony
of Pearson, Iltis, and Rex. As to Iltis’ oral response to the letter, for
demeanor reasons I credit Iltis over Pearson, who testified that she
replied, ‘‘I understand’’; Rex did not testify about this matter. As
to Pearson’s remarks about bargaining, I accept the version in Iltis’
notes, which she made relatively soon after the incident, over her
oral testimony and over the testimonial versions of Rex and Pearson.
As to Pearson’s physical acts (about which he did not testify) while
making these remarks, I credit Iltis over Rex for demeanor reasons.
As to Respondent’s response to these remarks, for demeanor reasons
I credit Pearson and reject Iltis’ testimony that neither she nor Rex
replied at all.
Union hasn’t] addressed our problems.’’39 Hoelscher went on
to testify that Kapner then asked whether Respondent was
firm on these issues; that Hoelscher said yes; and that
Kapner then said he did not think there was much need to
continue meeting at that time. Because Iltis did not corrobo-
rate Hoelscher’s testimony with respect to this conference
with Kapner, I am inclined to disbelieve Hoelscher’s testi-
mony that he and Kapner made such remarks. In any event,
the principal relevance of such testimony—namely, what it
shows about Hoelscher’s state of mind—is not substantially
affected by whether he in fact expressed it to Kapner; see
infra, part II,M,1,a.
At this point, Hoelscher and Iltis left the premises. The
parties had met that day for a total of 1-1/2 hours, including
the caucuses after their first discussions.
As of the end of that meeting, no arrangements had been
made for any future meetings between the parties. Late in the
day on November 14 or on the morning of November 15,
Pearson advised Iltis that the Union was going to conduct a
ratification meeting on Wednesday, November 16, for the
membership to vote on Respondent’s November 7 proposal.
This proposal (including the loser-pays-all clause and the
checkoff clause) was presented to the membership, without
recommendation one way or the other. The membership re-
jected the proposal, and decided to remain on strike, because
of the ‘‘key issues’’ of ‘‘an insurance plan and money’’; the
foreman working proposal was not discussed at that meeting.
Iltis testified that if the employees had voted yes, ‘‘I would
assume we would have had an agreement.’’ Meanwhile, be-
tween November 14 and 16, Respondent hired two perma-
nent replacements for strikers.
F. The Union’s November 16, 1988 Request for
Reinstatement and for Resumption of Negotiations
At about 12:30 p.m. on November 16, Pearson came to the
lobby of the plant and asked the receptionist for Rex. On re-
ceiving this message, Rex asked Iltis to accompany him to
the lobby. When they reached the lobby, Pearson told them
that Respondent’s proposal had been unanimously rejected.
Then, Pearson gave an envelope to Rex, who told him to
give it to Iltis instead, that Rex had nothing to do with nego-
tiations. Then, Rex or Pearson gave the envelope to Iltis,
who opened it. The envelope contained a handwritten letter
to Rex, dated November 16 and signed by Pearson, which
stated, ‘‘By this letter, the union unconditionaly [sic] offer
[sic] to return to work.’’ After reading the letter to herself,
she said, ‘‘Okay.’’
When Rex and Iltis came into the lobby, Pearson had been
standing about 2 feet inside the lobby door. By the time Iltis
had finished reading it, he was leaning against the door. He
said, ‘‘We’ll need to continue negotiating.’’ Iltis said, ‘‘I un-
derstand.’’ Without a statement from Pearson or (so far as
the record shows) anyone else about a specific date for nego-
tiations or how one was to be set up, Pearson left the build-
ing.40
Rex testified that after Respondent received the Union’s
Wednesday, November 16 request for reinstatement and be-
ginning on a day while the picketing was still in progress,
management conducted a series of meetings during which
[W]e began formulating our plans as to the positions
that we needed to fill, the number of people that we
needed to fill the positions and reviewing those em-
ployees who were qualified to be able to fill those posi-
tions.
at that point we had a core group of current production
people and . . . some of the people that had assumed
some sales responsibilities, but now were back in the
shop and we would discuss the positions that we need-
ed . . . we felt that to be effective and to be successful
on a financial basis . . . we had to parallel a similar
method under which we had been operating.
Iltis, who attended some of these meetings, testified that it
was there determined that the criteria to be used in the selec-
tion process would be the employees’ skill and ability and
their records ‘‘as related to discipline, attendance, [and] the
way that they performed in the past.’’
The picketing which had begun about the beginning of the
strike continued until after the start of the business day on
Friday, November 18. On that day, Pearson telephoned Iltis,
advised her that the pickets had been removed, and asked
about the help-wanted advertisements for replacement work-
ers which he had seen in the newspapers after he had given
Respondent the application for reinstatement. Pearson said
that the Union intended to go to the NLRB about the matter.
Iltis said that Respondent had ordered these advertisements
before receiving the application, and had been unable to can-
cel them. Pearson said that he would have to check with
someone and would get back with Iltis that day. He did not
call her that day, and the pickets reappeared about an hour
after his telephone call.
G. The Union’s November 21, 1988 Request for
Reinstatement and for Resumption of Negotiations
After returning, the pickets continued to patrol the plant
until about 12:30 p.m. on Monday, November 21, when
Pearson and employee bargaining committee member Lucien
Hendricks came to the plant and met with Iltis in the
489J. W. REX CO.
41 During the strike, the plant did not operate on weekends. The
record fails to show whether picketing took place on the weekend
of November 19–20 or, for that matter, on any previous weekends.
42 My findings in this sentence are based on a composite of credi-
ble parts of the testimony of Pearson and Lucien Hendricks, both of
whom testified to the request to continue negotiations. For demeanor
reasons, I believe Hendricks’ testimony as to her reply, to the extent
that it may differ from Pearson’s testimony that she said that ‘‘she
understands, or something to that effect.’’ To the extent that her tes-
timony may differ from the testimony of Pearson and Hendricks, I
do not believe her testimony that Pearson’s oral remarks at that
meeting were confined to picket matters, that her oral remarks were
confined to the reinstatement matter, and that he did not request a
meeting.
43 As previously noted, at the November 7 meeting the Union had
asked (through Kapner) what Respondent intended to pay returning
strikers; and at the November 14 meeting Respondent had reiterated
its position as to their pay and had stated that it intended to start
hiring permanent replacements. Iltis attended both meetings.
44 Also referred to in the record as Copenhaver.
45 As to Lingenfelter, her notes state ‘‘Not returning—Quit (11–
23).’’
46 Also referred to in the record as Krewson.
47 As to these seven, Iltis’ compilation of the results of her tele-
phoning contains the entry ‘‘not returning—Quit.’’ The ‘‘Quit’’
dates range from November 23 to December 23. As to K. Smith and
Prince, her compilation suggests that they told her on November 23
that they wanted to return; that Smith told her on November 29 that
he would not return on November 30, the date he was told to report;
and that Prince failed to report on December 5, the day he was told
to report.
lobby.41 Pearson said that the pickets were now gone for
good, and that he had ‘‘screwed up’’ by putting them back
on Friday. Then, he gave her a letter, signed by him and di-
rected to Rex, which stated, ‘‘By copy of this letter, once
again, we repeat our prior offer to unconditionally return to
work.’’ Iltis replied that Respondent was ‘‘working on it and
it would be soon.’’ Pearson said that the Union still wished
to continue negotiations; she replied, ‘‘all right.’’42 He said
nothing about delaying the hiring of replacements or about
delaying the implementation of any of the provisions of Re-
spondent’s last offer.
H. The Recall of Strikers in November and
December 1988
Rex testified that when he read the Union’s Wednesday,
November 16 request for reinstatement he was uncertain as
to what it meant ‘‘plus the pickets were still out there. I
wasn’t sure if we were on strike or weren’t on strike or they
agreed to come back or just exactly what was happening.’’
He went on to testify that on Monday, November 21, Re-
spondent ‘‘still [was] zeroing down on the number of people
that we wanted in the positions.’’ Iltis testified that between
November 16 and 21, Respondent did not do anything sub-
stantial about recalling the strikers, because the application
for reinstatement had come as somewhat a surprise to Re-
spondent43 and because ‘‘Mr. Pearson came in on Wednes-
day [November 16] with a letter that they were uncondition-
ally offering to return to work but the pickets did not dis-
appear until Monday [November 21] afternoon . . . I felt
that if they were offering to return to work, they should not
still be picketing the plant. So, I did not know if his offer
was sincere.’’
Iltis’ notes reflect that her Monday, November 21 con-
versation with Pearson and Hendricks took place at 12:30
p.m. She credibly testified that because Pearson had asked
her to inform him who was going to be called back, she
called him about 4:30 p.m. on Tuesday, November 22; told
him that Respondent was now prepared to give him a listing
of the names and addresses of the first group of people Re-
spondent would be bringing back; and asked him whether he
wanted it. She credibly testified that Pearson initially said he
did not feel that he needed it, because he had told Lucien
Hendricks to telephone the strikers that they would be re-
called. Iltis went on to credibly testify that she again asked
Pearson whether he was sure he did not want the list, he then
said to go ahead, and that she then ‘‘gave him the list of
names that we were going to start calling.’’ Although the
record fails to show the number or identity of the persons
on this list, Rex testified that as of Monday, November 21
(the day before this Iltis—Pearson conversation), Respondent
had heard that a number of the strikers were not coming
back; and Respondent’s opening brief (p. 15) describes the
list which she gave him as ‘‘a list of the names of the em-
ployees that the Company would initially recall.’’ At about
5 p.m. on Tuesday, November 22, about a half hour after
giving this list to Pearson, Iltis began to make a ‘‘first call’’
to employees. During each such ‘‘first call’’ she asked the
employee if he or she was ‘‘ready, willing and able to return
to work . . . someday the following week. Although, I could
not give them a definite date or job or shift until I talked
to the majority of the people so that we would know where
we were going to put the people.’’
On November 22, Iltis attempted to telephone about 14 of
the approximately 56 strikers, 10 of these 14 being alleged
discriminatees (Reynolds, Copenhauer,44 Antonacio, Leotta,
Vallejo, Waldspurger, Homan, Bennett, Carreras, Clarke). Of
these 14, she made contact with about 8 on that day, includ-
ing 6 alleged discriminatees (Reynolds, Antonacio, Leotta,
Vallejo, Waldspurger, Carreras). All of these eight except
Carl Lingenfelter, who is not named as a discriminatee, told
her that they wanted to return.45 On the following day,
Wednesday, November 23, she attempted to telephone about
28 strikers, 21 of whom are alleged discriminatees (Hinkle,
Zeigler, Felder, Novotny, A. Smith, Ordille, Lott, Denton,
Mastromatto, Lopez, Rivera, Ball, Rosa, R. Kreuson,46 Lan-
dis, Famularo, Heil, Cute, Frederick, Schoch, Samuelson). Of
these 28 whom she first called on November 23, she made
contact that day with 17, including 11 of the alleged
discriminatees (A. Smith, Ordille, Lott, Denton, Mastromatto,
Lopez, Rosa, R. Kreuson, Famularo, Heil, and Cute). In ad-
dition, she made contact on November 23 with four of the
strikers whom she had called but had been unable to make
contact with on November 22, including three alleged
discriminatees (Copenhauer, Homan, and Clarke). All the al-
leged discriminatees stated that they wanted to return. The
record is unclear as to what the others told her.47 By the
time she left the plant on Wednesday, November 23, 1988,
the day preceding a 4-day Thanksgiving weekend during
which the plant was closed down, she had tried to reach 31
of the 42 alleged discriminatees, and had in fact made con-
tact with 20 of them. There is no evidence that she tried to,
or did in fact, make contact with any of the strikers on No-
vember 24 (Thanksgiving Day); Friday, November 25; or
Saturday and Sunday, November 26 and 27.
490 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
48 The alleged discriminatees so advised were Hodum, Reynolds,
Copenhauer, Antonacio, Hinkle, Zeigler, Felder, and Leotta. A No-
vember 29 reporting date was also given to the following employees,
not alleged to be discriminatees, who did not report to work and
quit: Camburn, Fillman, Barber, Suttle, and Beeman.
49 The alleged discriminatees so advised were Vallejo, Novotny, A.
Smith, Waldspurger, Homan, Lott, and Denton. A November 30 re-
porting date was also given to K. Smith and Burycz, not alleged to
be discriminatees, who did not report to work and quit.
50 Bennett, Mastromatto, Lopez, Carreras, Rivera, Ball, Rosa, and
Clarke.
51 The alleged discriminatees so advised were R. Kreuson, Landis,
Famularo, Heil, Cute, Frederick, E. J. Smith, Schoch, and Samuel-
son. A December 5 reporting date was also given to Prince, Brown,
and Miller, none of whom is an alleged discriminatee, and all of
whom failed to report for work and quit.
52 Ball, Carreras, Clarke, Cute, Hinkle, Homan, R. Kreuson, Lan-
dis, Leotta, Mastromatto, Novotny, Ordille, Reynolds, Rosa, Schoch,
A. Smith, E. J. Smith, Waldspurger, and Zeigler.
53 Famularo (down from $9.81 to $8.97), Felder (down from
$11.12 to $9.81), Heil (down from $9.81 to $9.64), Hodum (down
from to $9.81 to $9.64), and Stotsenburgh (down from $10.15 to
$8.97).
54 Antonacio (up from $9.98 to $10), Bennett (up from $11.65 to
$11.72), Copenhauer (up from $9.81 to $11.12), Denton (up from
$9.98 to $10), Frederick (up from $7.97 to $9.64), Lopez (up from
$9.98 to $10), Lott (up from $8.47 to $8.97), Rivera (up from $8.46
to $9.64), Samuelson (up from $8.46 to $8.97), and Vallejo (up from
$9.81 to $11.12).
55 If sustained, the General Counsel’s contention that Respondent’s
unilateral changes violated its bargaining obligation calls for an
order which would compensate the alleged discriminatees for mone-
tary losses entailed in connection with differences between their
prestrike and poststrike jobs or job classifications. See ‘‘The Rem-
edy,’’ infra. Iltis testified that ‘‘No one got a lower rate than . . .
they would have gotten had they worked that same job prior to the
strike.’’
56 This finding is based on the testimony of returning striker Ann
Antonacio. Rex’s testimony about what he said did not distinguish
between the four meetings; rather, he testified, while inspecting the
outline which he had used, ‘‘I would begin by welcoming the people
back.’’ For demeanor reasons, as to his remarks at this first meeting,
I credit her.
On Monday, November 28, the day after the Thanksgiving
weekend, Respondent began to turn on the equipment and
furnaces, which had been turned off on the Wednesday pre-
ceding Thanksgiving Day, and to get them heated up. Also
on November 28, Iltis telephoned 43 strikers to give them re-
porting dates later that week or on the following Monday,
December 5. Of these, 13 (8 of whom are alleged
discriminatees) were told to report to work on Tuesday, No-
vember 29;48 9 (7 of whom are alleged discriminatees) were
told to report to work on Wednesday, November 30;49 8 (all
alleged discriminatees) were told to report to work on Thurs-
day, December 1;50 and 12 (9 of whom are alleged
discriminatees) were told to report to work on Monday, De-
cember 5.51 Rex and Iltis testified that the strikers who were
recalled effective November 29 worked the day shift that day
and the third shift on and after November 30; that the strik-
ers recalled on November 30 worked the first shift that day
and the second shift on and after December 1; that the strik-
ers who were recalled effective December 1 worked the day
shift that day and and all times thereafter; and that the strik-
ers who were recalled effective December 5 worked the day
shift that day and various shifts thereafter. Also recalled ef-
fective December 5 was alleged discriminatee Ordille. Iltis
first made contact with him on November 23, on which date
he told her that he wished to return to work. However, she
made no subsequent contact with him until Thursday, De-
cember 1, on which date he was given his December 5 re-
porting date. Iltis made no effort to reach alleged
discriminatee William Stotsenburgh III until Wednesday, De-
cember 7. She made contact with him on that day, and on
December 8 she offered to recall him. He accepted, and re-
turned to work that day.
Respondent’s part-time temporary employees were let go
on Tuesday or Wednesday, November 29 or 30. The full-
time temporary employees continued to perform unit work
through Friday, December 2, and were then terminated. All
the management, supervisory, and clerical employees also
performed unit work through December 2. The following
week, most of the clerical employees resumed performing
their regular, nonunit clerical work, although some of them
continued to perform unit work on a periodic basis. Super-
visors continued to perform unit work until full-time super-
visory work was available for them. As discussed infra, eight
alleged discriminatees were not recalled until various dates
between March 1 and April 24, 1989.
Of the 34 alleged discriminatees who accepted Respond-
ent’s 1988 offers of recall, 19 were paid the same as they
had been paid before the strike,52 5 were paid less,53 and 10
were paid more.54 Respondent changed its job classifications
just before the strikers returned to work. The General Coun-
sel’s opening statement conceded, in effect, that all of the al-
leged discriminatees were eventually offered reinstatement.
Accordingly, I need not and do not consider whether the
record would otherwise support a reinstatement finding.55 Of
the strikers whose poststrike pay differed from their prestrike
pay, only three (Antonacio, Denton, and Lopez, all recalled
as inspectors) were paid at any minimum rate specified in
Respondent’s November 7 proposal. Each of these received
an increase from $9.98 to $10.
I. Remarks by Rex Upon Strikers’ 1988 Recall; Alleged
Unlawful Interrogation
During the 4-day Thanksgiving weekend after the Union’s
second request for reinstatement, Rex discussed the matter
with his wife, a licensed psychologist who had worked in the
plant. She recommended that he ‘‘express some feeling and
really try to open up some dialogue between [him] and the
rest of the people and explain where we were at and what
we were doing.’’ In view of her recommendation, and in
order to elicit more responses and ideas from the employee
audience, Rex decided to give a series of orientation meet-
ings in the induction area for the returning strikers, and pre-
pared an outline of the remarks he intended to make at all
of these meetings. All of these meetings were attended by
Rex, Iltis, the heat treat supervisors, and the managers.
Eight strikers returned to work on November 29, 1988.
The first such meeting was held at 7 a.m. that day. Rex
opened that meeting by saying that he ‘‘wasn’t too sure he
wanted [the strikers] back there,’’ and generally complained
about their being on strike and about picketing by union
members who were on workmen’s compensation.56
At this point, Rex made essentially the same remarks that
he made at the remaining striker orientation meetings. He
491J. W. REX CO.
57 He testified that he was referring to ‘‘a lot of gestures and a
lot of name calling and . . . stones that were thrown . . . tires that
were slashed and a lot of nasty things that were said and just a gen-
eral attitude of ugliness.’’ There is no other record evidence regard-
ing this matter.
58 My findings in this paragraph are based on Iltis’ testimony,
Rex’s testimony, and his outline, which he followed during his pres-
entation during all of the orientation meetings. Their testimony did
not differentiate between the meetings. I find that he made at all the
meetings the statements set forth in the paragraph to which this foot-
note is attached. As to the first meeting, such testimony was partly
corroborated by Antonacio; as to the December 5 meeting, such tes-
timony was partly corroborated by returning strikers Esau Jeffrey
Smith and Carson Heil.
59 My finding that he did not so advise the employees is based on
the testimony of Iltis, who was present throughout all the meetings,
that he did not give her any reasons for asking her to make entries
on the flip chart.
60 At that time, she was not sure whether she wanted to remain
in Respondent’s employ. That day, she had been assigned to a shift
other than her prestrike shift, to which, however, she was moved the
following day. She resigned from Respondent’s employ about a
month after her return, because of (she testified) ‘‘things in general
in the shop I did not agree with.’’ At the time of her resignation,
she had been in Respondent’s employ for more than 9 years.
61 Although the sheets from the flip charts are in evidence, as to
this question the record fails to show which sheet was prepared at
which meeting. Every sheet has at least five entries, none of them
reflecting Antonacio’s reply.
said that during the strike, Respondent had achieved nearly
the prestrike level of production, by operating with only 22
permanent and 10 temporary personnel, who worked long
hours; and that Respondent had learned about some of the
bottlenecks in Respondent’s business and a lot about pricing,
costing, and material handling, and had identified some areas
of insufficient return for Respondent’s effort. He went on to
say that during the strike, Respondent had found some super-
visors to be more able than others to solicit cooperation; and
that supervisors and employees had to be able to commu-
nicate better with one another. Rex said that during the
strike, Respondent had learned of the need for teamwork and
flexibility. Further, he said that before the strike, Respondent
had made the best offer available in view of Respondent’s
history of declining sales and profits, and without assurance
of increased productivity of sales. He said that at the time
of the strike Respondent had not changed health insurance
and pensions (as had been reported in some of the local pa-
pers), that Respondent wanted to drop the fifth week of vaca-
tion, but that when negotiations ‘‘ended in September’’ Re-
spondent intended to continue with it. Rex said that at the
time of the strike he had had three options—namely, (1) to
settle the strike for whatever the cost, but such action would
have been ‘‘financially unsound’’ and would have caused a
‘‘short term life’’ for the Company; (2) to close the plant
down permanently; or (3) to operate with the ‘‘non-union
employees’’ who did not strike and to shrink the business to
the scale where Respondent could manage with relatively
few people. He went on to say that management had decided
on the third option ‘‘basically to work the plant and operate
the plant as best we could.’’ Rex said that the nonunion em-
ployees had elected to work and save their jobs, and that in
one sense they had saved the jobs of the people who were
returning. Rex said that there had been some ugliness on the
picket line, including personal comments directed at him and
his wife and at several other people who were working;57
and that he questioned why he should continue to work with
or for people who had such animosity toward him and Re-
spondent. Rex said that before the strike he had felt a strong
obligation to provide continued employment to the people
who had worked in the plant for a long time; but that after
what he had seen on the picket line and after such a long
strike with 100-percent rejection of the contract, which he
felt was the best that Respondent could offer at that time, he
was not so sure, and only time would tell. Rex said that if
he could not run a business which employs people whom he
respected and who respected each other, he did not really
need to run a business of this type.58
At this point, Rex said that many good people had chosen
to quit and not come back to work with Respondent after the
strike. He asked the group whether anyone knew why these
people had quit, and asked Iltis to write down the responses
on a large flip chart. As previously noted, he had decided to
use this procedure as a means of generating a dialogue be-
tween him and the employees and eliciting more responses
and ideas from his audience; but he did not so advise the
employees.59 Nobody answered. Then, he directed this ques-
tion to each of the eight employees individually; but if a par-
ticular employee did not respond, Rex went on to the next
one. Iltis recorded these answers on the flip chart as ‘‘(1)
Found other employment (2) Lack of communication (3)
Tired of ‘bumping heads’ (4) Injured by Co. (5) New oppor-
tunity.’’ She did not record the names of the employees who
answered this question.
After that, Rex directed a general inquiry to those present
as to why they had bothered coming back. Nobody answered.
Then, he specifically directed this question to Local Union
President Hodum, a member of the union bargaining commit-
tee. Hodum said that he was 48 years old, and it was too
hard to find a job at his age. Rex specifically directed this
question to Hinkle and at least two other returning strikers,
all of whom replied that they needed their jobs. Rex specifi-
cally directed this question to employee Antonacio, who re-
plied that she was not sure she was back.60 Rex’s question
was answered by all the employees to whom he directly put
it, but not by anyone else. Iltis put down their answers, but
not their names, on her flip chart. However, she did not put
down Antonacio’s reply.61
As discussed to some extent infra, the questioning and the
flip-chart procedure took place at all of the other striker ori-
entation meetings. Afterward, at all of the meetings, Rex
used the flip chart to describe his views about Respondent’s
purpose—to be profitable; to provide its employees with
good wages and benefits and satisfying employment; and to
provide customer service and quality at a fair price. Then, he
described what he believed should be Respondent’s values
and philosophies, attaching importance to honesty, mutual re-
spect between employees, job satisfaction for each individ-
ual, and fair pay for a fair effort. He said that teamwork,
flexibility, and communication were very important. He said
that if Respondent was successful, all the employees should
benefit. He went on to say that Respondent was in many
ways like a business starting over, and that he believed the
existing building, equipment, and customers, and the good
employees returning to work, would be successful in allow-
ing Respondent to continue as a business. At this point, he
492 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
62 In addition to Heil and E. J. Smith, the strikers who returned
to work on that day were Ordille, R. Kreuson, Landis, Famularo,
Cute, Frederick, Schoch, and Samuelson.
63 Heil testified that Rex ‘‘insisted on each of us to give an an-
swer.’’ Heil later testified that he used the word ‘‘insisted’’ because
Rex ‘‘pointed to each one and asked for an answer.’’
64 This finding is based on the fact that the entry ‘‘offer was made
to return’’ is the only flip-chart entry which even arguably reflects
Smith’s reply. No dates appear on the flip-chart pages which were
written during the various meetings at which returning strikers were
asked the reason for their return.
asked Iltis to explain what he testimonially described as
‘‘some of the contract changes or some of the changes that
we had put into the last offer . . . that were different from
the preceding contract.’’ Then, Iltis reviewed the attachment
to the November 9 letter which summarized such differences.
In the course of doing this, she stated that there were fewer
job descriptions, that people were able to perform a number
of tasks in those job descriptions, that a bonus plan was as-
sociated therewith, that a professional job evaluator was
going to prepare new job descriptions in the near future, and
that thereafter Respondent would be developing a merit re-
view plan which (Respondent hoped) would take effect with-
in 90 days.
After Iltis’ presentation, Rex stated that the future task was
to develop ‘‘the teamwork and cooperation that . . . I felt
. . . really worked well’’ during the strike; that the change
in job classifications would allow for more flexibility; and
that in order to ‘‘get work out the door,’’ management would
sometimes be working beside unit employees and mainte-
nance employees would sometimes perform production work.
He stated that a lunchbreak would be afforded the employees
who had not previously had one, and that pending the con-
struction of a lunchroom, a temporary area had been set up
in the plant induction room where employees could eat their
lunch. He told the employees to ‘‘use a fair amount of dis-
cretion’’ in taking washup, cleanup, and coffee breaks. He
said that no merit review plan had yet been formulated, but
gave some of ‘‘the points that it might incorporate’’; and that
there would be a bonus sales plan, which had not yet been
totally formulated, because if Respondent was successful he
wanted the employees to share in that success. Rex stated
that there would be monthly meetings of all employees on
the third Saturday of each month. He said that the forthcom-
ing review process might lead to the separation of marginal
employees who proved unable to perform, as well as to re-
ward other employees. He said that he hated to have all the
rules that Respondent had had in the past, that it was the
good employees who got the most upset about the rules and
were discouraged in performing their tasks, and that it was
the 10 percent of poor employees for whom 90 percent of
the rules were developed and who were disciplined for
breaking them. He said that the attendance system had prob-
ably been Respondent’s biggest problem. Rex said that man-
agement had been instructed not to be arrogant or vindictive
or abusive, and that employees should let him know if they
believed any management personnel was out of line and he
would deal with it; ‘‘I expect the reverse to be true also.’’
At the conclusion of the November 29 orientation session,
returning strikers Hodum and Reynolds left the plant.
Rex began the remaining striker orientation meetings by
welcoming the strikers back; laying to one side the events in-
volving the questioning and flip charts, his and Iltis’ remarks
were essentially the same as described above in connection
with the first meeting. The December 5 meeting was at-
tended by returning strikers who included Heil and E. J.
Smith.62 During the questioning/flip-chart portion of the
meeting, Rex asked the group generally why some of the
strikers had not returned to work. Nobody volunteered a
reply. Then, Rex put this question to each returning striker
individually. When so questioned individually, E. J. Smith
replied that some people did not like the wording in a letter
sent out to each of the strikers (inferentially, the November
9 letter) or did not know where they stood with Respondent,
so they went elsewhere; no entry resembling these remarks
appears on Iltis’ flip chart, whose sheets are undated except
for one made at the November 29 meeting. When so ques-
tioned individually, Heil replied that he did not know. When
thus individually questioned, all the returning strikers replied,
but the record fails to show what the others said. Iltis re-
corded some of the responses, but not the speakers’ names,
on her flip chart. After that, Rex asked the group generally
why they had returned to work. Nobody volunteered a reply.
Then, Rex asked each returning striker individually why he
or she had returned. When thus individually questioned, E. J.
Smith replied that ‘‘the Union made an offer, [Rex] had ac-
cepted it, and here [Smith] was.’’ When thus individually
questioned, Heil, who since November 7 had been participat-
ing in negotiations as a member of the employee negotiating
committee, said that he needed the job.63 Iltis put onto her
flip chart six of the answers to these questions—‘‘Length of
service/Offer was made to return/Enjoyed working here/I like
it/Don’t want to start over/Retire soon.’’64 The record fails
to show whether some of the returning strikers failed to an-
swer this question by Rex. E. J. Smith gave honest testi-
mony that he did not feel threatened by Rex’s question about
why Smith had returned.
As to the questioning/flip chart portion of the other meet-
ings, the only testimony is that of Iltis and Rex, both of
whom (as noted) testified generally about all of the meetings.
A composite of their testimony shown as follows: Rex asked
the group generally why so many good people had chosen
to quit and not come back to work with Respondent after the
strike. Nobody answered. Then, Rex put this question to each
returning striker individually. If a particular striker failed to
respond, Rex proceeded to the next striker. Then, Rex asked
the group generally why they had not quit, but had chosen
to return to their jobs. Nobody answered. Then, Rex put this
question to each returning striker individually. If a particular
striker failed to respond, Rex proceeded to the next striker.
Iltis recorded some of the answers to both questions on her
flip chart, but did not record the names of the speakers.
Iltis recorded on her flip chart many, but not all, of the
answers to Rex’s questioning. Her flip chart for three of
these meetings contains the entries, in response to Rex’s
question about why other strikers had not returned, ‘‘Disgust
w/union leadership,’’ ‘‘Strike longer than anticipated,’’ and
‘‘Long strike.’’ Her flip chart for meetings other than the
December 5 meeting contains the entry, in response to Rex’s
question about the reason for the return of the striker ad-
dressed, ‘‘Unhappy w/union leadership.’’ However, most of
the answers, at least as she recorded them, did not expressly
493J. W. REX CO.
65 The flip chart contains such entries as: long service; like it here;
needed a job; like my job; willing to work with ‘‘you’’; desire to
qualify for a pension; a desire to work part time after retirement;
cannot go elsewhere; recognize good company; money; benefits;
family commitments; difficult to start over; and do not want to start
over. Cf. supra, fn. 64 and attached text.
66 This finding is based upon his testimony that during this week-
end, he prepared an outline of the remarks which he later made to
the returning strikers (see supra, part II,I). This outline indicates that
he intended to refer to the ‘‘Merit Review Plan,’’ the ‘‘Sales Bonus
Plan,’’ and flexible job classifications, all of which were included in
Respondent’s November 7 proposal. As discussed supra, part II,I, he
and Iltis advised the returning strikers on November 29 and there-
after that they would be returning under the terms of Respondent’s
last offer.
67 My findings in this sentence are based on Iltis’ testimony.
Where she used the term ‘‘consistent,’’ Respondent’s answer uses
the words ‘‘in accordance.’’
mention the Union or the state of negotiations.65 Rex and/or
Iltis credibly testified that the responses included: they need-
ed the job, it was too late to start over, they liked working
for Respondent, wages and benefits were good, and they
were close to retirement age and were looking out for their
pension interest.
Rex concluded each of the striker orientation meetings by
opening the floor for comments and questions. Not many
were made. At one of the meetings, a returning striker asked
whether there was still a union; Rex replied yes. A returning
striker asked at one of the meetings whether there would be
more negotiations; Rex replied that ‘‘there would be at any
time that a mediator called for a meeting . . . we would be
there.’’ A returning striker asked at one of the meetings, ‘‘if
since there was no union was the Company going to be de-
ducting union dues.’’ Rex replied that he was not sure, but
without checking with someone who knew about such mat-
ters, Rex believed that dues would not be deducted unless
there was a contract; however, Rex said, the employees were
still represented by the Union. A returning striker asked at
one of the meetings when his insurance would be effective;
Iltis replied that the strikers’ insurance would be reinstated
on the day they returned to work.
J. The Alleged Unilateral Changes
Rex testified, in effect, that by the end of the Thanks-
giving weekend, he had decided that upon the strikers’ recall,
Respondent would apply to their employment the terms of
Respondent’s proposal of November 7, 1988.66 Iltis testified
in August 1989 that when the striking employees came back
to work, they were working under the terms of that proposal,
and that they had been working under the terms of that pro-
posal since November 29, 1988.
About November 29, 1988, Respondent took the following
action consistent with its offer to the Union on November 7,
1988: established minimum wage rates; reduced the number
of labor grades; changed job classifications and job descrip-
tions; modified Respondent’s job evaluation policy; changed
wage rates of group leaders; instituted a sales bonus plan;
changed wage hour guarantees; changed the overtime policy;
changed the training period rate progression; changed the
temporary transfer policy; changed the recall, layoff, and
bumping policies; instituted the policy regarding the recall of
striking employees; changed the seniority policy; changed the
vacation replacement policy; and changed the holiday pay
and vacation policy.67 In addition, about November 29, Re-
spondent instituted a merit wage increase policy in accord-
ance with Respondent’s November 7 proposal. Also, after the
strike, and consistent with Respondent’s November 7 pro-
posal, Respondent abandoned the prior practice of paying pro
rata vacation pay to employees who quit. Between the end
of the strike and the first day of the hearing (August 16,
1989), about 17 employees quit. Among the employees who
quit but did not receive pro rata vacation pay were Ann
Antonacio, Edward Camburn, John Fillman, and Kenneth
Smith.
The complaint alleges that Respondent ‘‘changed its policy
regarding the performance of unit work by non-Unit employ-
ees . . . on or about November 29, 1988.’’ As discussed
supra, part II,B, during the strike supervisors spent most of
their time performing production work. After strikers re-
turned to work, Respondent had supervisors perform unit
work whenever it was needed and the supervisors had time
to do it. As noted supra, part II,C,2, the 1985–1988 agree-
ment contained significant limitations on the performance of
unit work by supervisors.
The complaint alleges that about November 29, 1988, Re-
spondent ‘‘eliminated paid lunch breaks.’’ Iltis testified that
under the expired agreement, employees in production were
on an 8-hour day, got paid for 8 hours, and ate as they
could; whereas the quality and maintenance employees’ day
was extended by one-half-hour to provide them with a one-
half hour unpaid lunch. Still according to Iltis, during the
1985 negotiations Respondent had told the Union that at
some point in the future, when Respondent was able to pro-
vide physical lunchroom facilities, Respondent would insti-
tute an unpaid lunchbreak for everyone at the facility. As
previously noted, Rex testified to stating, during the strike
orientation meetings in late November and early December
1988, that lunchbreaks were different from what they had
been before the strike. At that time, Respondent had set up
in the induction room an area which Iltis testimonially de-
scribed as a ‘‘temporary lunchroom facility.’’ Construction of
a lunchroom began in December 1988 and was completed by
the end of February 1989. Iltis testified in August 1989 that
‘‘we have now instituted what we had told the Union we
were going to which was a 20 minute unpaid lunch for ev-
eryone.’’ In consequence, the quitting hour for all the unit
employees on all three shifts was changed—as to the produc-
tion employees, it was extended by 20 minutes; and as to the
maintenance and quality control employees, it was shortened
by 10 minutes. The 1985–1988 contract included a ‘‘letter of
intent,’’ dated September 16, 1985, that, ‘‘The Company in-
tends to provide lunchroom facilities when all employees
have an unpaid lunch.’’ This ‘‘letter of intent’’ was included
in Respondent’s November 7, 1988 proposal, and there is no
evidence that the lunchbreak/lunchroom matter was ever dis-
cussed during the 1988 negotiations.
Before the strike, janitors in the bargaining unit emptied
the trash cans of production employees, and other firms’
truckdrivers who made deliveries to Respondent’s facility
were not permitted to perform the work, which was reserved
to unit employees, of loading and unloading other firms’
494 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
68 The attachment to Rex’s November 9 letter to all the unit em-
ployees included, in its summary of Respondent’s November 7 pro-
posed changes, the statement, ‘‘An amendment to the Pension Plan
has been prepared to allow employees who terminated their employ-
ment relationship with the Company to receive the amount of their
accrued benefit sooner than previously permitted.’’ It is unclear
whether Iltis’ remarks to the returning strikers referred to this matter.
69 This finding is based upon Hoelscher’s testimony, which on
timely objection was not received to show the truth of Kapner’s rep-
resentation.
70 Hoelscher testified that on January 23, Kapner (to whom Pear-
son had sent a courtesy copy of the January 19 letter) told Hoelscher
that Kapner had telephoned Pearson and asked why he had not tele-
phoned Kapner about having a meeting, to which Pearson replied
that he had written the letter because the lawyers told him to. On
timely objection, Hoelscher’s testimony in this report was not re-
ceived to show that Pearson made the remarks attributed to him.
Pearson credibly denied consulting counsel about the letter or so ad-
vising Kapner. Accordingly, and for demeanor reasons, I do not ac-
cept Hoelscher’s testimony about this conversation between him and
Kapner, who did not testify.
71 As used in the text, the job classification ‘‘inspector’’ refers to
the job with that title after the strike and with the prestrike title
‘‘Final Inspector (Inspector A).’’ The prestrike job classification
‘‘Inspector B’’ was encompassed in the poststrike job classification
‘‘Utility Worker.’’
trucks. When employees returned following the strike, Re-
spondent began to require production employees to empty
their own trash cans, and permitted other firms’ truckdrivers
to load and unload their trucks, without prior notice to or
bargaining with the Union.
The complaint alleges that about November 29, 1988, Re-
spondent changed its health insurance benefits and its pen-
sion plan. Iltis’ testimonial denial of this allegation is
uncontradicted.68 In addition, the complaint alleges that
about November 29, 1988, Respondent changed its policy re-
garding arbitration costs. On August 17, 1989, Iltis testified
without contradiction, ‘‘we have not changed the policy re-
garding arbitration costs. There have been no arbitrations.’’
K. The Union’s January 19, 1989 Request for
Continued Negotiations
Between November 21, 1988, and January 19, 1989, no-
body from Respondent contacted Pearson about resuming ne-
gotiations; nor did the Union contact Respondent for this
purpose. In December, Kapner told Hoelscher that he had not
heard from anyone and ‘‘I don’t know that anything is going
to be gained at this point with the holiday.’’ About January
2, 1989, Hoelscher telephoned Kapner and asked him what
was going on. Kapner said that he had not heard anything;
that during a discussion with Pearson about another case
Kapner had asked him about the dispute with Respondent
and Pearson had replied, ‘‘no, it is in the hands of the law-
yers.’’69 On January 19, 1989, Pearson mailed a letter to
Rex, bearing that date, which read as follows:
The Union is still waiting for the Company to continue
negotiations. Due to the fact that we were not at an im-
passe when the Company broke off negotiations, I be-
lieve it would be in the best interest of both parties to
negotiate as soon as possible and we are waiting to hear
from you.70
By letter dated January 23, 1989, Iltis replied, ‘‘We al-
ways have been and will continue to be ready to meet with
you at the call of the Federal Mediator.’’ A courtesy copy
of this letter was sent to mediator Kapner. The parties re-
sumed negotiations in March 1989. The last paragraph of Re-
spondent’s April 13, 1989 answer to the complaint states,
‘‘Even if the parties were not at impasse on November 21,
1988, they will either have reached a new collective bargain-
ing agreement or will be at impasse prior to the date sched-
uled for trial [July 17, 1989] in this action.’’ As of August
16, 1989, the first day of the hearing, the parties had not
reached an agreement.
L. Recall of Strikers in 1989
Eight of the strikers alleged to be discriminatees were not
recalled until March or April 1989.
Roeder, who before the strike had been a heat treater A—
group 1 at $11.47 an hour, was recalled to work as a utility
worker at $8.97 an hour, effective March 1, 1989, and quit
on March 21, 1989. Audain and Pierre, who before the strike
had been heat treaters B—group 2 at $9.81 an hour, were re-
called to work as utility workers at $8.97 an hour effective
April 10 and 17, 1989, respectively. Kaminski, who before
the strike had been an induction and flame hardener at
$10.15 an hour, was recalled to work as a utility worker at
$8.97 an hour effective April 19, 1989, and quit that same
day. Respondent offered to recall Gerhart effective April 3,
1989, but he did not return owing to physical disability.
Before the strike, Respondent had employed one inspector
on each of the first two shifts and two inspectors on the third
shift—a total of four inspectors.71 Immediately following the
strike, Respondent employed one inspector on each shift. In
late January 1989, after third-shift inspector Antonacio quit,
second-shift inspector Denton was transferred to the third
shift. After Denton’s transfer, she regularly came in early and
worked the last 2 hours of the second shift as well as the
entire third shift, and first-shift inspector Lopez began to reg-
ularly stay late and work the last 2 hours of the second shift.
During the 4 hours of the second shift when no inspector
was present, nonunit quality control employees performed
some inspection work. Michie, who just before the strike had
been an inspector at $9.98 an hour, was recalled as a utility
worker at $8.97 an hour effective April 3, 1989, and quit that
same day. Just before the strike, B. Hendricks had been a
shipper-receiver at $9.64 an hour; he was recalled as a ‘‘heat
treat’’ at $8.97 an hour effective April 19, 1989. Just before
the strike, L. Hendricks had been a shipper-receiver at $9.64
an hour; he was recalled as a material handler at $9.64 an
hour effective April 24, 1989. Both B. Hendricks and L.
Hendricks had been inspectors during part of their tour of
duty with Respondent. When inspector Antonacio quit in late
January 1989, she was receiving $10 an hour.
For reasons indicated supra, part II,H, I have made no ef-
fort to ascertain whether these recalled strikers were recalled
to the same jobs or shifts they occupied before the strike.
None of the strikers recalled in 1989 was paid at any mini-
mum rate included in Respondent’s November 7, 1988 pro-
posal.
Iltis testified that L. Hendricks, Kaminski, B. Hendricks,
Pierre, and Audain were recalled at a relatively late date be-
cause they had poor work records.
495J. W. REX CO.
72 NLRB v. Insurance Agents (Prudential Insurance Co.), 361 U.S.
477, 486–488 (1960); Marriott In-Flite Services, 258 NLRB 755,
764 (1981), enfd. 729 F.2d 144 (2d Cir. 1983), cert. denied 464 U.S.
829 (1983); Hotel Roanoke, 293 NLRB 182 (1989); J. P. Stevens
& Co., 239 NLRB 738, 749 (1978), enfd. in relevant part 623 F.2d
322 (4th Cir. 1980), cert. denied 449 U.S. 1077 (1981).
73 As to Respondent’s proposal permitting use of temporary em-
ployees during vacations, on Respondent’s cross-examination Pear-
son testified as follows:
Q. But apparently you didn’t flag that [on Pearson’s notes in
preparation for the November 14 negotiating session] as . . . an
objectionable paragraph?
A. No.
Q. Okay, so you would have accepted that. You had accepted
that in effect.
JUDGE SHERMAN: The witness nodded his head yes.
74 ‘‘The contract includes provisions permitting the Company to
hire . . . part-time employees desirous of working a regular schedule
of less than the normal 8-hour day. These employees would be re-
quired to join the Union and pay Union dues just as all other em-
ployees.’’
M. Analysis and Conclusions
1. Respondent’s alleged violations of Section 8(a)(5)
and (1) of the Act
a. Respondent’s alleged failure to bargain in good faith
on and after November 7, 1988
Section 8(d) of the Act defines the duty to bargain collec-
tively as the duty to ‘‘confer in good faith with respect to
wages, hours, and other terms and conditions of employment,
or the negotiation of an agreement, . . . but such obligation
does not compel either party to agree to a proposal or require
the making of a concession.’’ Accordingly, although the duty
to bargain does not compel a party to make concessions, dis-
charge of that duty does require a willingness by each party
to hear, deliberate, and consider changing its mind; and to
search for a common ground. Moreover, although the duty
to bargain presupposes a desire to reach ultimate agreement,
that duty is not satisfied by a mere willingness by one party
to enter into a contract of its own composition.72
On the basis of these principles, I agree with the General
Counsel that Respondent failed to bargain in good faith on
and after November 7, 1988, in that Respondent evinced an
unwillingness to consider any meaningful suggestions by the
Union in connection with Respondent’s proposal that day,
and entertained a fixed intent to put that entire proposal into
effect whether or not the Union agreed to it. In so finding,
I rely largely on Respondent’s conduct during and after the
November 14 bargaining session, the only such session be-
tween Respondent’s presentation of that proposal to the
Union and Respondent’s action in largely implementing it.
Respondent’s witnesses testified, in effect, that a principal
purpose of Respondent’s new proposals on November 7 was
a desire to continue operating the plant with the increased
flexibility which was being exercised during the strike, when
any individual could be assigned to perform any job re-
quired, and to provide employees with an incentive to gen-
erate increased sales. During the less than 2 hours of the No-
vember 14 session, the Union accepted Respondent’s pro-
posal for no wage increase and for a sales bonus plan which
gave employees an incentive to increase their productivity;
changed from outright rejection to outright acceptance of Re-
spondent’s proposal for more than a 75-percent reduction in
the number of labor grades; and, instead of adhering to the
Union’s initial outright rejection of Respondent’s proposal
for merit increases ‘‘at its sole discretion’’ (a proposal shown
by Respondent’s subsequent remarks as also encompassing
decreases to amounts at or above the contractual minimum),
accepted that proposal subject to the grievance procedure.
Furthermore, during that meeting the Union did not object at
all to Respondent’s proposed expansion of the management-
rights clause so as to include, among other things, the right
to assign to jobs and to transfer employees; or to a number
of other company proposals some of which significantly en-
larged Respondent’s freedom to transfer employees between
jobs (see supra, part II,E). Nor did the Union reject (although
it did request explanations of) Respondent’s proposals which
permitted Respondent to use temporary employees when per-
manent employees were on vacation; and afforded Respond-
ent the right unilaterally to put into effect (subject to a griev-
ance alleging that ‘‘the job is improperly rated’’) new job de-
scriptions and wage rates. If included in a complete and
binding contract, the proposals which the Union rather quick-
ly agreed to would constitute an appreciable contribution to-
ward Respondent’s goals of increased labor incentives and
flexibility, and considerable further assistance would be pro-
vided by inclusion of the proposals for which the Union
merely requested further explanation or about which the
Union did not comment at all. At the hearing, Respondent
and Pearson both took the position that Pearson’s failure to
object to some of Respondent’s November 7 proposals meant
that he would have accepted them.73 Nonetheless, Hoelscher
by his own admission concluded that the Union had not ad-
dressed ‘‘any’’ of Respondent’s problems or goals. Indeed,
by his own admission, he included in the Union’s com-
plained of conduct the Union’s failure to agree to give Re-
spondent the right to use part-time employees; even though
Respondent had told the Union that Respondent was merely
considering a company proposal on this subject, Respondent
never gave the Union a written proposal with respect thereto
(although Respondent indicated otherwise in the summary
sent to the employees on November 9),74 and the Union (so
far as the record shows) had never commented on this sub-
ject at all.
Respondent’s fixed determination to put into effect the
terms, and only the terms, in its own contractual proposal is
further shown by Company President Rex’s November 9 let-
ter to all employees in which Rex described Respondent’s
November 7 proposal as Respondent’s ‘‘final offer . . . last
and final offer . . . final contract’’ which Respondent was
urging the employees to ratify; this letter was sent to all unit
employees 2 days after Respondent gave the Union Respond-
ent’s November 7 proposal, and before the Union had had
an opportunity to even review it carefully, let alone to ac-
quaint Respondent with a careful and specific response. Re-
spondent’s indifference to any union suggestions with respect
to Respondent’s November 7 proposal is further shown by
Hoelscher’s statement, before presenting the Union with the
November 7 proposal, that this was Respondent’s ‘‘last, best
and final’’ proposal; by Hoelscher’s reiteration at the No-
vember 14 meeting that the November 7 proposal was Re-
spondent’s last and best offer; by his statement at that meet-
ing that this proposal ‘‘is the contract’’; and by his statement
496 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on November 7, immediately after apprising the Union for
the first time of numerous proposals which included a pro-
posal for supervisory performance of unit work, that even if
the strikers came back, ‘‘the supervisory personnel that was
in there would still be working.’’ Further evidence of Re-
spondent’s determination to effectuate its own proposal with-
out even considering the Union’s views is Respondent’s No-
vember 29 action in unilaterally at least purporting to effec-
tuate Respondent’s November 7 proposal, after disregarding
the Union’s November 16 and 21 requests for resumption of
negotiations, and in the absence of an impasse (see infra, part
II,M,1,c). Indeed, immediately upon being advised at the be-
ginning of the November 14 session that the Union could not
live with some of the things in Respondent’s proposal,
Hoelscher said, in effect, that he would give a ‘‘quick no’’
to any substantive union proposals. Further evincing Re-
spondent’s indifference to any proposals advanced by the
Union is Respondent’s failure to ask Pearson to clarify or to
repeat, in order to enable Respondent to know what they
were, certain comments, which Respondent’s representatives
believed self-contradictory or could not hear, about Respond-
ent’s November 7 proposal. Additionally indicating Respond-
ent’s bad-faith motivation is Rex’s reference, when urging
the employees to ‘‘ratify . . . this final contract,’’ to Re-
spondent’s ‘‘competitors, mostly all non-union, [who] have
higher sales productivity and less labor costs than we have,
and . . . do not endure the countless hours of nonproductive
grievance meetings and work slowdowns over frivolous
issues that we have endured.’’ A unionized employer’s envy
of nonunion competitors is not unlikely to infect his bargain-
ing with the union.
Accordingly, I find that Respondent bargained with the
Union in bad faith on and after November 7, 1988, in viola-
tion of Section 8(a)(5) and (1) of the Act.
b. Respondent’s alleged failure to honor the Union’s
alleged requests for continued negotiations
The credited evidence shows that Respondent disregarded
the Union’s November 16 and 21, 1988, requests for resump-
tion of negotiations, and did not express until January 23,
1989, any willingness to accede thereto. Respondent’s sole
tendered defense to its action appears to be the contention
that this request was directed to it by Union Business Agent
Pearson, and not by the Federal mediator, through whom the
parties had scheduled bargaining negotiations for an undis-
closed period which began no later than early October 1988.
I find any such defense to be without merit, particularly be-
cause not until late January 1989, more than 2 months after
Pearson’s November 1988 fruitless requests for continued ne-
gotiations, did Respondent indicate to him a willingness to
honor such requests if made through a mediator. See Kansas
Van & Storage Co., 273 NLRB 855, 863 (1984).
c. Respondent’s alleged unilateral changes
The undisputed evidence shows that about November 29,
1988, Respondent effected in employees’ working conditions
certain unilateral changes which were consistent with Re-
spondent’s November 7 proposal. Respondent contends that
this action was not unlawful because as of that time, the par-
ties had reached a bargaining impasse. However, ‘‘it is mani-
fest that there can be no legally cognizable impasse, i.e., a
deadlock in negotiations which justifies unilateral action, if
a cause of the deadlock is the failure of one of the parties
to bargain in good faith.’’ Shipbuilders (Bethlehem Steel Co.)
v. NLRB, 320 F.2d 615, 621 (3d Cir. 1963), cert. denied 375
U.S. 984 (1964). Accord: PRC Recording Co., 280 NLRB
615, 634 (1986), enfd. 836 F.2d 289 (4th Cir. 1987); Park
Inn Home for Adults, 293 NLRB 1082, 1087 fn. 9 (1989).
Accordingly, rejection of Respondent’s impasse defense is
required by my finding that before making these unilateral
changes, Respondent had engaged in bad-faith bargaining
which demonstrated Respondent’s total indifference to the
Union’s views regarding the proposals which Respondent
unilaterally implemented.
Furthermore, even assuming that Respondent had bar-
gained in good faith before unilaterally implementing a sub-
stantial part of Respondent’s November 7 proposal, Respond-
ent’s action violated Section 8(a)(5) and (1) because no bar-
gaining impasse existed. As to the existence of an impasse
which justifies unilateral implementation of pending propos-
als, ‘‘The bargaining history, the good faith of the parties in
negotiations, the length of the negotiations, the importance of
the issue or issues to which there is disagreement, the con-
temporaneous understanding of the parties as to the state of
the negotiations are all relevant factors to be considered
. . . .’’ Taft Broadcasting Co., 163 NLRB 475, 478 (1967),
affd. 395 F.2d 622 (D.C. Cir. 1968). In the instant case, al-
most all the issues which divided the parties as of the end
of the November 14 bargaining session had been created by
Respondent’s proposals of November 7, only a week earlier.
Almost the entire November 7 bargaining session had been
devoted to Respondent’s oral presentation and explanation of
these proposals. During the 90-minute November 14 bargain-
ing session, the Union accepted Respondent’s proposal of no
wage increase plus a sales bonus plan which would provide
employees with an incentive to improve productivity; accept-
ed Respondent’s proposed job grouping; accepted Respond-
ent’s proposed merit review program if it were rendered
grievable; tacitly accepted (by interposing no objections to)
a number of Respondent’s other new proposals, which (inter
alia) significantly expanded Respondent’s freedom to assign
and transfer employees; and—by asking questions—sug-
gested possible willingness to agree to Respondent’s pro-
posed clauses regarding use of temporary employees for va-
cations and regarding job evaluation. Furthermore, Respond-
ent’s representatives admittedly could not understand Pear-
son’s November 14 position with respect to double time, or
hear his November 14 comments with respect to Respond-
ent’s proposal regarding shift scheduling. Moreover, owing
to Respondent’s unlawful action in disregarding the Union’s
November 16 and 21 requests for the resumption of bargain-
ing negotiations, the parties did not meet at all between No-
vember 14 and Respondent’s implementation action on No-
vember 29, more than 2 weeks later. Also, the Union had
abandoned a number of its proposals, and agreed to a num-
ber of Respondent’s proposals, during the pre-November ne-
gotiations; and the parties had previously been parties to a
series of bargaining agreements during a 40-year bargaining
history which encompassed a single pre-1988 strike, in 1961.
In contending the existence of an impasse as of November
29, Respondent heavily relies on the Union’s bargaining pos-
ture with respect to the loser-pays-all and checkoff issues.
The credible evidence shows merely that Pearson’s superiors
497J. W. REX CO.
75 Nor do I credit Hoelscher’s testimony that, in effect, he attrib-
uted solely to the Union’s objections to loser-pays-all Pearson’s Oc-
tober 4 conduct in losing his temper and threatening to walk out of
the meeting. Rather, Hoelscher must have suspected that Pearson’s
conduct was due at least partly to Respondent’s conduct in consum-
ing almost 2-1/2 hours to draft sign-off sheets which Respondent had
undertaken to complete in 20 minutes, and then presenting a gratu-
itously drafted sign-off sheet calling for a clause (loser-pays-all)
which Pearson had twice rejected earlier that day.
76 Rather similarly, Iltis testified that as of November 14 she con-
cluded that the parties were never going to reach an agreement, be-
cause of the loser-pays-all issue and ‘‘because Mr. Pearson reverted
back to a lot of the language of the expired agreement which we
had made clear to him was totally unacceptable.’’ As to the extent
of Pearson’s proposed reversion, see supra, part II,E.
had instructed him that he ‘‘probably . . . shouldn’t agree to
[Respondent’s proposals as to these matters] if [Pearson]
could get around negotiating the contract without.’’ Further-
more, Pearson had twice submitted to the union membership
(without recommendation one way or the other), for accept-
ance or rejection, contracts proposed by Respondent both of
which included Respondent’s proposal with respect to loser-
pays-all and at least one of which also included Respondent’s
proposal as to checkoff. Iltis, as well as Pearson, testified
that these proposed contracts would have bound the Union
if approved by the membership, who rejected the September
16 proposal for reasons undisclosed by the record, and re-
jected the November 7 proposal for reasons of ‘‘an insurance
plan and money.’’ Moreover, as previously noted, as to the
checkoff issue Hoelscher himself testified that it was ‘‘a me-
chanical one [which] we always felt we could in fact re-
solve,’’ and to an agreement that Respondent’s ‘‘computer
guy’’ would call up someone in an appropriate union staff
position to try to work out a method for making the deduc-
tion. Furthermore, Hoelscher testified that the sign-off sheets
which he and Iltis prepared on October 4, 1988, and which
included the ‘‘loser-pays-all’’ clause and a clause stating that
‘‘The method of deducting Union Dues beginning February
1989 will be mutually agreed upon by the parties,’’ set forth
agreements which the parties had in fact reached.
Hoelscher’s testimony in this respect belies his further testi-
mony that at the meetings after the first bargaining session
‘‘other than the one time on September I think September 1st
sticks in my mind [Pearson] said no at this point. After that
it became absolute no.’’75 Under these circumstances, Re-
spondent can hardly claim a belief as of November 29 that
the Union would never have agreed to a contract which in-
cluded Respondent’s proposals as to loser-pays-all and
checkoff. Indeed, and even laying to one side the fact that
opposition to such company proposals had never been
evinced by the union membership who possessed ultimate
control over whether to accept any proposed contract which
Respondent characterized as final, the Union’s bargaining
representatives might have accepted Respondent’s positions
as to loser-pays-all and checkoff if further negotiations had
progressed toward an agreement with respect to the other
issues (directed to wage scales, job assignments, length of
work day, shift hours, required overtime, and preservation of
unit work) which had been created by Respondent’s Novem-
ber 7 proposal, and as to which the Union made significant
concessions on November 14. In view of the significance to
the employment relationship of such newly created issues,
which dominated the November 14 negotiations, it cannot be
said that the parties’ November 14 disagreement about loser-
pays-all and checkoff crippled the prospects of any agree-
ment even if Respondent had acceded to the Union’s requests
for further negotiations.
Respondent’s brief points to Hoelscher’s testimony that at
the conclusion of the November 14 meeting, he believed the
parties to be ‘‘hopelessly deadlocked’’ not only because of
the loser-pays-all issue, but also because of ‘‘the issue of
performance evaluation, temporary transfers, temporary em-
ployees all these which seemed to be no alternate proposal
from the Union.’’76 However, as previously noted, on No-
vember 14, the Union had agreed to Respondent’s perform-
ance-evaluation proposal if the evaluation were made
grievable; had tacitly accepted Respondent’s proposed en-
largement of its rights under the management-rights clause
and much of Respondent’s proposal regarding temporary
transfers; and had merely asked questions (rather than reject-
ing or tendering a counter proposal) about Respondent’s pro-
posal that temporary employees could be used during vaca-
tions and for a new job evaluation clause (and see supra, fn.
73). Accordingly, even if Hoelscher and Iltis (both experi-
enced negotiators) had nonetheless honestly concluded that
the parties were deadlocked as to the issues specified by
Hoelscher, any such conclusion would be so contrary to the
facts as to furnish no support to Respondent’s impasse con-
tention. Although Respondent also relies on the parties’ fail-
ure to agree about funeral leave, on November 14 the Union
expressed disagreement with only Respondent’s failure to in-
clude stepchildren, to whose inclusion Respondent had
agreed by October 4 but had withdrawn agreement on No-
vember 7.
In short, I conclude that even assuming Respondent had
been bargaining in good faith at all material times, as of No-
vember 29, 1988, the parties had not exhausted the prospects
of reaching an agreement and that, therefore, no valid im-
passe existed. Further, I find that Respondent ‘‘had a fixed
determination to implement [its proposals] regardless of the
status of its negotiations with [the Union] and without [the
Union’s] consent’’ (Howard Electrical & Mechanical, 293
NLRB 472 (1989)). Hence, the status of negotiations did not
privilege Respondent to effectuate its own proposals (even
those the Union had tentatively agreed to) on November 29,
1988. Saunders House v. NLRB, 719 F.2d 683 (3d Cir.
1983); Microdot, Inc., 288 NLRB 1015, 1016 (1988);
Harrah’s Marina Hotel & Casino, 296 NLRB 1116 (1989);
Bottom Line Enterprises, 302 NLRB 373 (1991); see also
Laborers Health & Welfare Trust Fund v. Advanced Light-
weight Concrete Co., 484 U.S. 539, 543–544 fns. 5 and 6
(1988); cf. Steego Transportation Equipment Centers v.
NLRB, 910 F.2d 268, 273 (5th Cir. 1990), the Board’s peti-
tion for certiorari granted, April 29, 1991, No. 90–1165.
Accordingly, I find that Respondent violated Section
8(a)(5) and (1) of the Act on November 29, 1988, by unilat-
erally taking the following action reasonably comprehended
within Respondent’s November 7, 1988 proposal: establish-
ing minimum wage rates; reducing the number of labor
grades; changing job classifications and job descriptions;
modifying its job evaluation policy; changing wage rates of
group leaders; instituting a sales bonus plan; changing wage
hour guarantees; changing the overtime policy; changing the
498 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
77 I need not and do not consider whether a legally cognizable im-
passe would have permitted unilateral implementation of this recall
proposal.
78 Although the cited cases involve subcontracting of unit work
rather than its performance by supervisors, I agree with the General
Counsel that the two situations are indistinguishable for purposes of
this analysis.
79 The complaint does not allege any violation in connection with
the length of the lunchbreak.
training period rate progression; changing the temporary
transfer policy; changing the recall, layoff, and bumping
policies; instituting the policy regarding the recall of striking
employees;77 changing the seniority policy; changing the va-
cation replacement policy; changing the holiday pay and va-
cation policy; instituting a merit increase policy; and aban-
doning the prior practice of paying pro rata vacation pay to
employees who quit. Similarly, Respondent violated Section
8(a)(5) and (1) by imposing the new requirement that bar-
gaining unit production employees (rather than bargaining
unit janitors) empty such production employees’ trash cans,
even assuming that such a new requirement was consistent
with Respondent’s proposed new job classifications.
For the same reasons, I agree with the General Counsel
that Respondent violated Section 8(a)(5) and (1) by its action
on and after November 29, 1988, in connection with per-
formance of unit work by supervisors. Before the strike
began, supervisors performed unit work only under very lim-
ited circumstances. As Respondent does not dispute, the per-
formance of unit work by supervisors is a mandatory subject
of collective bargaining. Maintenance Service Corp., 275
NLRB 1422, 1427 (1975). Because until November 7, 1988,
Respondent did not even propose a change in the provisions
of the 1985–1988 agreement which imposed such limitations,
Respondent’s action in having unit work freely performed by
supervisors after the expiration of the agreement was per-
mitted by Section 8(a)(5) solely because this action was a
means by which Respondent continued operations during the
strike (which began upon the September 17 expiration of the
agreement) and, absent impasse, did not privilege Respond-
ent to continue this practice after the strike had ended in No-
vember. See American Cyanamid Co. v. NLRB, 592 F.2d
356, 360–361 (7th Cir. 1979); Soule Glass & Glazing Co. v.
NLRB, 652 F.2d 1055, 1088 (1st Cir. 1981); Land Air Deliv-
ery, 286 NLRB 1131 (1987), enfd. 862 F.2d 354 (D.C. Cir.
1988), cert. denied 110 S.Ct. 52 (1989); Alexander Linn Hos-
pital, 244 NLRB 387 (1979), enfd. 624 F.2d 1090 (3d Cir.
1980).78
In addition, I find that Respondent violated Section 8(a)(5)
and (1) by its unilateral action in permitting the unit work
of loading and unloading trucks to be performed, after the
end of the strike, by truck drivers who were not in Respond-
ent’s employ. Respondent has not referred me to any contract
proposal by it, nor am I aware of any, which expanded any
right by Respondent to assign unit work to persons not on
Respondent’s payroll. Accordingly, such action was not rea-
sonably contemplated within Respondent’s November 7 pro-
posal, and violated the Act regardless of whether contract ne-
gotiations had reached a legally cognizable impasse. Amer-
ican Gypsum Co., 285 NLRB 100, 101 (1987). For the rea-
sons indicated in connection with Respondent’s unilateral ac-
tion regarding supervisors’ performance of unit work, the
fact that Respondent permitted outside truckdrivers to per-
form such loading and unloading work during the strike did
not privilege Respondent to continue after the end of the
strike this assignment of unit work which had been limited
to unit employees before the strike began.
However, the General Counsel has failed to show that Re-
spondent acted unlawfully with respect to the elimination of
paid lunch breaks. To be sure, Respondent may be
hypertechnical in contending that it never had paid
lunchbreaks; prior to the strike, production employees were
permitted to eat their lunch during hours for which they were
being paid. However, the 1985–1988 contract provided, in
effect, for an unpaid lunch when ‘‘lunchroom facilities’’
were provided; Respondent’s November 7 proposals included
such a provision; and the record fails to show that the ‘‘tem-
porary area’’ set up in the induction room when the strikers
returned to work did not constitute ‘‘lunchroom facilities’’
within the meaning of the 1985–1988 contract and the No-
vember 7 proposal. I conclude that the General Counsel has
failed to show unlawful unilateral action with respect to the
production employees’ lunchbreak. See Concrete Pipe Corp.,
238 NLRB 495 (1978).79
In addition, the undisputed evidence refutes the complaint
allegations that Respondent changed its health insurance ben-
efits, its pension plan, and arbitration costs. As to these alle-
gations, the complaint will be dismissed.
2. Respondent’s alleged violations of Section 8(a)(1)
and (3) of the Act
Economic strikers who make an unconditional offer to re-
turn to work are entitled to an offer of immediate reinstate-
ment to their former or substantially equivalent positions un-
less the employer can show that they have been permanently
replaced or that his action was due to some other legitimate
and substantial business justification. NLRB v. Fleetwood
Trailer Co., 389 U.S. 375, 378–379 (1967); NLRB v. W. C.
McQuaide, Inc., 552 F.2d 519, 528 (3d Cir. 1977); Harvey
Engineering Corp., 270 NLRB 1290, 1292 (1984). It is un-
disputed that on Wednesday, November 16, 1988, an uncon-
ditional offer to return was made by the Union on behalf of
all the strikers named in the complaint (see McQuaide, supra,
552 F.2d at 529), and that the offers of reinstatement made
to them were not effective until various dates between Tues-
day, November 29, 1988, and April 24, 1989.
Initially, Respondent contends that the application for rein-
statement did not become effective until Monday, November
21, 1988, when the picketing was permanently terminated.
The continuation of the picketing did not, of course, invali-
date the application. McQuaide, supra, 552 F.2d at 529.
However, Respondent appears to rely on Iltis’ testimony that
the continuation of the picketing until the afternoon of Mon-
day, November 21, confused her ‘‘Because I felt that if they
were offering to return to work, they should not still be pick-
eting the plant. So, I did not know if [Pearson’s] offer was
sincere.’’ However, the honesty of Iltis’ testimony in this re-
spect is cast into serious question by her remarks to Pearson
on November 18, when he first advised her that the pickets
had been removed, that Respondent had already attempted
(although unsuccessfully) to cancel all the help-wanted ad-
vertisements for replacement workers; and by her November
21 remarks to him, immediately after his second application
for reinstatement, that Respondent was already ‘‘working on
499J. W. REX CO.
80 Enfd. in part, set aside in part, and remanded in part 570 F.2d
1340 (8th Cir. 1978), decision on remand, 241 NLRB 330 (1979).
81 In Drug Package, the Board applied the 5-day rule in its deci-
sion on remand from the court of appeals, which had found the
strike to be an economic strike only. 241 NLRB at 332, particularly
fn. 13. However, certain peculiarities in that case militate against re-
garding it as clear precedent in connection with the instant case.
82 See Anaheim Plastics, 299 NLRB 79 fn. 3 (1990), see also
Wilkinson Mfg. Co. v. NLRB, 456 F.2d 298, 305 (8th Cir. 1972);
W. C. McQuaide, Inc., 220 NLRB 593, 610 (1975), enfd. in part
and remanded in part 552 F.2d 519 (3d Cir. 1977), decision on re-
mand 237 NLRB 177 (1978), 239 NLRB 671 (1978), enfd. 617 F.2d
349 (3d Cir. 1980). In Anaheim, the Board found that as to certain
strikers, whose status as economic or unfair labor practice strikers
the Board found unnecessary to resolve, the employer did not violate
the Act by delaying their reinstatement for 2 weeks, partly because
a tornado on the day before the application for reinstatement had
rendered production machines temporarily inoperative, had left the
plant full of standing rainwater, and had created a danger of injury
from electrical malfunctioning. In the instant case, Respondent relies
on at least alleged administrative problems only, and not on any
physical damage to the plant.
it.’’ Moreover, Rex testified (as did she, in effect) that the
picketing was still in progress when management began to
formulate its plans about whom to reinstate to what job. Fur-
thermore, there is no evidence that Respondent ever told
Pearson (either before the initial, November 18 removal of
the pickets or at any other time) that the continued picketing
had created any doubt as to the meaning or sincerity of the
November 16 offer to return. Although Respondent points to
Pearson’s November 21 remarks to Iltis that he had
‘‘screwed up’’ by putting the pickets back on November 18,
this remark could not have affected Respondent’s prior con-
duct and, moreover, may have referred (for example) to cre-
ating perceived unwarranted embarrassment to Respondent,
or unnecessary trouble and expense for the pickets and/or the
Union, rather than creating, as to the Union’s November 16
offer, ambiguities which Respondent never alleged to him.
Furthermore, Pearson’s November 18 complaint to Iltis about
the help-wanted advertisements for replacement workers lent
credence to the sincerity of his November 16 application.
Under these circumstances, I find that the unconditional ap-
plication for reinstatement was effective on Wednesday, No-
vember 16. See Dold Foods, 289 NLRB 1323, 1332–1333
(1988).
The General Counsel contends, in effect, that as to strikers
who had not been permanently replaced, Respondent was re-
quired to offer reinstatement effective on or before 5 days
following the effective date of the application for reinstate-
ment—that is, reinstatement effective on or before Monday,
November 21. In so contending, the General Counsel relies
on Drug Package Co., 228 NLRB 108, 113–114 (1977).80
Respondent contends that Drug Package is inapposite here
because that order involved what the Board found to be an
unfair labor practice strike, whereas the General Counsel
makes no contention here that the strike was other than an
economic strike.81 The General Counsel engages in some
oversimplification in urging that ‘‘there is no reason why
unreplaced economic strikers should be forced to wait longer
for reinstatement than unfair labor practice strikers’’ (Br. 58).
Thus, the Board’s Drug Package ruling represented
the appropriate balance between the administrative
problems faced by the employer, the right of the strik-
ers to reinstatement upon request, and the interests of
the lawfully hired replacements who must be terminated
to permit return of the strikers. Thus, the unfair labor
practice strikers have voluntarily left their jobs, albeit
in protest of their employer’s unfair labor practices, and
the time when they apply for reinstatement is solely
within their own control. On the other hand, the em-
ployer and the replacements, if any, have no such con-
trol . . . .
This language from Drug Package at least arguably indicates
that determining the date by which an employer is obligated
to honor the reinstatement applications of economic strikers
who have not been permanently replaced would require an
appropriate balance between the rights of economic strikers
who left their jobs without any unlawful employer provo-
cation, and replacements (if any) who never had any reason
to believe that their job claims were superior or even equal
to the claims of returning strikers; the instant case is some-
what atypical in that the employer did engage in unfair labor
practices during the strike, although they are not alleged to
have converted it into an unfair labor practice strike, and
most of the striker replacements were admittedly temporary.
However, after Drug Package a plurality of the Board re-
jected its then rule (not involved in Drug Package) that rein-
statement rights of unfair labor practice strikers who have en-
gaged in strike misconduct are to be determined by balancing
the gravity of their misconduct against the severity of the
employer’s unfair labor practices which have provoked the
strike. Clear Pine Mouldings, 268 NLRB 1044, 1045–1047
(1984), enfd. 765 F.2d 148 (9th Cir. 1985); cf. Mohawk Li-
queur Co., 300 NLRB 1075 fn. 3 (1990). The plurality’s ap-
proach would point to the conclusion that innocent economic
strikers’ right to reinstatement on application, although sub-
ject to some delay because of the employer’s administrative
problems and the replacements’ interests, is not subject to
further delay because the employer and the replacements are
innocent as well. Moreover, the Board has said that the rein-
statement rights of unreplaced economic strikers are the same
as those of unfair labor practice strikers;82 and, as to eco-
nomic strikers whose reinstatement was unlawfully delayed,
has ordered backpay beginning as of the unconditional offer
to return to work and without any grace period—precisely
the result called for by Drug Package with respect to unfair
labor practice strikers. Associated Grocers, 253 NLRB 31, 34
(1980), enfd. 672 F.2d 897 (D.C. Cir. 1981), cert. denied 459
U.S. 825 (1982); cf. Tall Pines Inn, 268 NLRB 1392, 1392
fn. 3, 1413 (1984).
For the foregoing reasons, I conclude that the Drug Pack-
age rule applies to unreplaced economic strikers as well as
to unfair labor practice strikers. Respondent admits, in effect,
that as of November 16, 1988, an opening was available for
each of the 34 alleged discriminatees who were recalled ef-
fective on or before December 8, 1988 (see R. Br. 51). How-
ever, the effective dates of these strikers’ recall was no ear-
lier than November 29, 1988,—at least 13 days after their
offer to return. Accordingly, I find at this point that Re-
spondent violated Section 8(a)(1) and (3) of the Act by de-
laying the reinstatement of the 34 strikers listed in Conclu-
500 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
83 In addition, management and supervisory employees performed
unit work during this period and thereafter; the significance of this
is discussed infra. During the strike, management, supervisors, cleri-
cal employees, and full-time temporary employees worked 12-hour
shifts. The record fails to show the length of their shifts between
November 16 and December 2.
84 Of the 34 discriminatees recalled effective December 8 or ear-
lier, Iltis attempted to contact 10 on November 22 (Reynolds,
Copenhauer, Antonacio, Leotta, Vallejo, Waldspurger, Homan, Ben-
nett, Carreras, Clarke), but on that date she reached only 6 (Rey-
nolds, Antonacio, Leotta, Vallejo, Waldspurger, Carreras). In addi-
tion, on that date she attempted to and did make contact with three
strikers not named in the complaint (Lingenfelter, Fillman, Barber),
and unsuccessfully tried to reach a fourth (Camburn). The record
fails to show whether her November 22 reference to ‘‘the first
group’’ was limited to those she had already been able to reach,
those whom she had tried to reach, those whom Respondent planned
to recall effective November 29, or some other ‘‘group.’’
85 Kennedy & Cohen of Georgia, Inc., 218 NLRB 1175, 1176
(1975), also cited by Respondent, found that the employer had law-
fully withheld an offer of reinstatement to an economic striker
whose job had been filled by a supervisor who after the strike had
been transferred into that job for a nondiscriminatory reason. The de-
cision does not suggest that the employer was subject to (let alone
violated) any duty to bargain; and (unlike here) the filling of that
job by a supervisor as to the poststrike period did not constitute an
unfair labor practice in and of itself.
sion of Law 6, infra, who were recalled in 1988 effective
November 29, 1988, and thereafter.
My conclusion that this case is controlled by Drug Pack-
age requires rejection of Respondent’s contention that as to
these strikers it did not violate the Act because Respondent
allegedly acted reasonably in connection with reinstating
them effective on various dates between Tuesday, November
29, and Thursday, December 8. In any event, the record fails
to support this contention. Thus, of the 10 or 12 temporary
employees whom Respondent had hired during the strike, the
full-time employees continued to work until December 2, and
the part-time employees continued to work until November
29 or 30. During this same period, Respondent’s nonunit,
clerical employees also performed unit work.83 Moreover,
Iltis’ Tuesday, November 22 conversation with Pearson
shows that by late afternoon on that day, Respondent knew
the identity of the first ‘‘group of people’’ Respondent would
be ‘‘bringing back’’;84 the failure of her records to show any
contact with any of the discriminatees between Thursday,
November 24, and Sunday, November 27, inclusive, shows
that by the end of Wednesday, November 23, Respondent
knew exactly whom it would offer on November 28 to recall
to work; and on November 28 the temporary replacements
were still working for Respondent. Indeed, as noted, Re-
spondent’s opening brief states, in effect, that Iltis knew by
late afternoon on Tuesday, November 22, which employees
Respondent would initially recall. Nevertheless, until Novem-
ber 28 Respondent did not even give a recall date to any of
the discriminatees, and as to some of them, the recall dates
then specified were as long as a week later. In short, Re-
spondent scarcely exerted itself in arranging for the recall of
the strikers for whom openings are not even claimed to have
been unavailable. An allegedly mitigating consideration re-
lied on in Respondent’s reply brief (p. 17)—namely, a desire
to provide each returning striker with ‘‘an orientation meet-
ing to ease the transition’’—in fact aggravates the serious-
ness of Respondent’s delay; Respondent used these orienta-
tion meetings to announce that the returning strikers would
be subject to Respondent’s unlawful unilateral changes in
important conditions of employment and to unlawfully inter-
rogate the returning strikers about protected activity (see
infra, part II,M,3).
As to the strikers not recalled until 1989, Respondent con-
tends that its delay in recalling them was justified because,
allegedly, no openings were available for them between the
date of their November 16, 1988 offer to return and the dates
of their recall. The burden of so showing is, of course, on
Respondent. Fleetwood, supra, 389 U.S. at 378 fn. 4; NLRB
v. W. C. McQuaide, Inc., 617 F.2d 349, 354 (3d Cir. 1980);
Consolidated Dress Carriers, 259 NLRB 627, 638 (1981),
enfd. in relevant part 693 F.2d 277 (2d Cir. 1982). Respond-
ent has failed to discharge that burden.
Respondent principally argues that during the strike, bar-
gaining unit work had been performed by Respondent’s su-
pervisors, and that the at least perceived success of this ar-
rangement led Respondent to ‘‘a fundamental, entrepreneurial
decision to have its supervisors continue to perform ‘hands
on’ work in the plant so that the supervisors could continue
to experiment with each production job to ensure that each
customer’s unique heat treating requirements were satisfied’’
(opening Br. 51). Respondent relies on Pillows of California,
207 NLRB 369 (1973); (during strike, strikers’ duties divided
among permanent replacements and supervisors); Lincoln
Hills Nursing Home, 257 NLRB 1145, 1157–1158 (1981)
(striking nurses’ jobs eliminated during strike by conversion
of employer’s nursing home from ‘‘skilled’’ to ‘‘intermediate
care’’ facility); Overhead Door Corp., 261 NLRB 657, 664–
665 (1982) (strikers’ production jobs filled during strike by
transferring employees hired as permanent employees during
strike for jobs discontinued during strike); Atlas Metal Parts
Co. v. NLRB, 660 F.2d 304, 310 (7th Cir. 1981) (need for
striker’s prestrike job eliminated by acquisition of machine
during strike). However, in none of these cases did the em-
ployer commit an independent violation of Section 8(a)(5) by
continuing after the strike the practice found to justify the re-
fusal to reinstate. Because Respondent violated Section
8(a)(5) by continuing to use supervisors for unit work after
the end of the strike (see supra, part II,M,1), their use for
this purpose cannot justify Respondent’s failure to recall
strikers. Land Air Delivery v. NLRB, 862 F.2d 354, 360 fn.
8 (D.C. Cir. 1988), cert. denied 110 S.Ct. 52 (1989), enfg.
286 NLRB 1131, 1132 (1987).85 Moreover, because the al-
leged lack of supervisory work for supervisors (two of whom
were hired during the strike) after the end of the strike would
not constitute a defense to giving them unit work under cir-
cumstances where such action would otherwise constitute a
violation of Section 8(a)(5), neither does such alleged lack
of supervisory work constitute a defense to assigning unit
work to supervisors rather than reinstating strikers to do it.
Respondent further contends that the amount of unit work
in the plant was less after the strike than before and, in ef-
fect, that in consequence jobs would have been unavailable
in November 1988, for the strikers not recalled until 1989,
even if Respondent had discharged its duty of adhering after
the strike to the prestrike, contractually generated practice of
permitting supervisors to perform unit work under limited
circumstances only. I find that Respondent has failed to dis-
501J. W. REX CO.
86 The record fails to show the prestrike jobs of any of these em-
ployees except Camburn, part of whose job called for skills not pos-
sessed by the strikers whose recall was delayed until 1989. However,
as discussed infra, Respondent continued to have such tasks per-
formed by a supervisor who began to perform them during the
strike. The record fails to show that after the end of the strike, a
job could not have been opened up for one of the 1989 returnees
by assigning such tasks to a striker who returned to work in 1988
or to a permanent replacement, or by training one of the 1989 re-
turnees to perform them.
87 Namely, maintenance helper, lift truck operator, furnace helper,
induction and flame helper ‘‘St.-Fixture Helper,’’ furnace operator
‘‘Prod.,’’ inspector B, blaster, production utility worker, helper ship-
per-receiving, janitor/laborer.
88 Although B. Hendricks’ personnel record states that he was re-
called as ‘‘Heat Treat,’’ no such job title was used in Respondent’s
poststrike classification system. His personnel record further states
that he was recalled as labor grade 1, which Respondent’s poststrike
wage structure applied to utility workers only.
89 Heflin had had almost no experience with the induction machine
prior to the strike, and had had to teach himself to perform setups
on that machine while the 2-month strike was in progress.
charge its burden of establishing this defense to its delay in
recalling such strikers.
Thus, 4 months or more before the effective recall date
(April 10, 1989) of the first striker recalled in 1989, Re-
spondent received resignations from six strikers (Camburn,
Fillman, Barber, K. Smith, Prince, and Burycz) who had told
Respondent that they would accept recall effective on various
dates between November 29 and December 5, 1988, but who
never did report to work after the strike.86 Indeed, the con-
tention in Respondent’s opening brief that, in effect, Re-
spondent was prepared to offer reinstatement effective by
about December 7, 1988, to all the strikers whom Iltis at-
tempted to contact on or before that date indicates that after
December 7, Respondent had a total of 11 vacancies, 1 for
each of the 11 strikers whom she called on or before Decem-
ber 7 but who resigned or failed to return. Moreover, begin-
ning on November 29, 1988, and continuing until at least the
August 1989 hearing, Heat Treat Supervisors Richard
Cressman and Walter Bates spent 6 to 8 hours a day per-
forming the unit work of loading and unloading furnaces,
driving forklifts, operating blasters, and performing a func-
tion known as masking. The same was true of Supervisor
Jerry Babalock after December 5, 1989. Between the end of
the strike and Christmas 1988, Personnel Manager Iltis spent
3 or 4 hours a day doing the unit work of operating blasting
machines. During this same period, Production Manager
David Brough spent 12 hours a day operating furnaces; be-
tween Christmas 1988 and February 1989, he spent 8 hours
a day at this work; and thereafter he cut his hours back to
4 hours a day 2 or 3 days a week and 7 hours a day the
rest of the time. The work performed by Brough requires no
special training, and can be performed by anyone if in-
structed to do it. Further, after the strike ended, salesman
Jerry Farra, a nonunit employee, worked in the shipping and
receiving department, where he loaded and unloaded trucks,
and also loaded and unloaded baskets for the all case line
and did some masking and blasting. He performed such work
for 2 hours a day and 3 or 4 days a week until Christmas
1988, and thereafter performed such work 1 or 2 days a
week until April 1989, the month of the 1989 recalls. Before
the strike, the work described in this paragraph had been per-
formed primarily by furnace operators, furnace helpers, and
utility workers; had been performed by these supervisors
very infrequently; and had never been performed by Farra.
During their respective periods of prestrike employment, the
jobs of furnace operators, furnace helpers and/or utility work-
ers had been performed by Roeder, Michie, Pierre, Kaminski,
and Audain, none of whom was recalled until March 1,
1989, at the earliest. Moreover, Hoelscher’s and Iltis’ testi-
mony shows, in effect, that Respondent anticipated that the
work encompassed by a number of prestrike separate job
classifications could be performed after a half-day’s training
at most, by the ‘‘utility worker’’ job classification unilater-
ally established by Respondent after the strike.87 Of the
seven strikers who were not recalled until 1989 and who in
fact reported to work, all but L. Hendricks were recalled as
utility workers.88 Although L. Hendricks was recalled as a
‘‘material handler,’’ in November 1988 Respondent had re-
called striker Frederick as a ‘‘material handler’’ even though
his prestrike classification (furnace helper) was encompassed
within the poststrike classification of ‘‘utility worker,’’ and
there is no evidence that he had ever held either of the
prestrike classifications (shipper-receiver and lift truck opera-
tor, both of them classifications in which L. Hendricks had
worked) which Respondent had merged into the poststrike
‘‘material handler’’ classification. Furthermore, employee
Heil credibly testified that a material handler (a classification
which B. Hendricks had also filled before the strike) could
perform masking and blasting, could help load and unload
baskets for the furnaces, and could run the belt furnaces.
Moreover, between December 5, 1988, and Christmas
1988, Supervisor Ken Kreuson (not to be confused with
discriminatee Raymond Kreuson, Ken’s brother), who before
the strike performed no bargaining unit work, worked 6 or
7 hours a day performing bargaining unit work on the fixture
and straightening table. After Christmas 1988, and until at
least August 1989, Ken Kreuson performed this work 2 or
3 hours a day. Also, between December 5, 1988, and at least
April 1989, Supervisor Sandy Zigon spent an hour a day per-
forming the bargaining unit work of wrapping packages for
pickup by the United Parcel Service. In addition, between
December 5, 1988, and February 1989, she spent up to an
hour a day performing the bargaining unit work of driving
a lift truck and unloading cans. Also, between December 5,
1988, and Christmas 1988, Safety Program Director Dennis
Nace spent between 6 and 8 hours a day performing the unit
work of loading and unloading trucks. Furthermore, between
December 5, 1988, and March 1989, Company President Rex
spent 3 or 4 hours a day, 4 days a week, performing the unit
work of operating a Brinell testing machine. Finally, after the
strike and until at least the August 1989 hearing, mainte-
nance supervisor Sid Heflin worked 8 or 9 hours a day in
the induction department performing unit work which con-
sisted of operating the induction machine and performing set-
ups. Before the strike, striker Kaminski had operated this ma-
chine and done some minor setups. Although he had never
performed some of the setups work performed by Heflin, Re-
spondent failed to show what proportion of Heflin’s
poststrike work consisted of this latter kind of setups, wheth-
er Kaminski could have learned to perform them, or how
long it would have taken him to learn.89 Although Rex testi-
fied that some of the work performed by nonunit personnel
502 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
90 Before the strike, Respondent had employed one inspector on
each of the first two shifts and two inspectors on the third shift. Im-
mediately after the end of the strike, Respondent employed one in-
spector on each shift.
from December 1988 through January 1989 was experi-
mental in nature, Respondent failed to identify what and how
many hours’ work he was referring to. Moreover, although
Rex testified in September 1989 that as of that date about
15 percent of Respondent’s ‘‘total volume’’ represented work
(performed for a single customer) which over a 3-month pe-
riod had been performed almost entirely by nonunit person-
nel because of the number of variables involved, there is no
evidence as to the number of man hours involved, and his
somewhat vague testimony as to dates suggests that Re-
spondent did not begin to perform the work in question until
after all the discriminatees had been recalled.
Furthermore, when a vacancy in the job of inspector was
created by the resignation on January 27, 1989, of third-shift
inspector Antonacio, Respondent did not offer that job to
unrecalled striker David Michie, who had been an inspector
just before the strike, or to unrecalled strikers B. Hendricks
and L. Hendricks, both of whom had performed the job in
the course of their prior employment. Instead, and even
though at the time of Antonacio’s resignation she was
‘‘going crazy trying to keep up with’’ her job,90 inspector
Mary Denton was transferred from the second to the third
shift, and regularly came in early and worked the last 2
hours of the second shift. At the same time, first-shift inspec-
tor Victor Lopez began to regularly stay late and work the
first 2 hours of the second shift. During the 4 hours of the
second shift when no inspector was present, nonunit quality
control employees performed some inspection work. This
transfer of unit work to nonunit employees, and this rear-
rangement of duties between, and increase in hours assigned
to, admitted bargaining unit employees, do not constitute a
defense to Respondent’s failure to recall strikers after
Antonacio’s late January resignation. Greater New Orleans
Artificial Kidney Center, 247 NLRB 973 fn. 2 (1980).
For the foregoing reasons, I find that Respondent also vio-
lated Section 8(a)(1) and (3) of the Act by delaying the rein-
statement of the eight strikers listed in Conclusion of Law
6, infra, as having been recalled in 1989, between November
16, 1988, and such 1989 dates, which are established by the
amended pleadings.
3. Respondent’s alleged independent violation of
Section 8(a)(1) of the Act
I agree with the General Counsel that Company President
Rex’s interrogation of returning strikers about their reasons
for returning constituted a violation by Respondent of Sec-
tion 8(a)(1) of the Act. Thus, the questioning was conducted
by Respondent’s top ranking executive, and in the presence
of Respondent’s personnel director and many (if indeed not
all) of its supervisors and managers, in groups of 7 to 11 em-
ployees whom management had instructed to attend such
meetings in a plant area where at least most of them did not
ordinarily work. None of the employees at any of the meet-
ings replied to Rex’s question to the group about their rea-
sons for returning, and every one of them was thereupon
questioned individually about the matter. Respondent’s per-
sonnel director made a permanent record of many of the re-
plies, in a manner which showed the returning strikers what
she was doing. Respondent’s reasons for making such a per-
manent record were not explained to the returning strikers,
and Respondent has not tendered a legitimate reason for
making this particular matter a subject of President Rex’s
questions. The meetings were held at the end of an unsuc-
cessful strike during which Respondent had engaged in bad-
faith bargaining in the very presence of two of the interro-
gated returning strikers, and such meetings served as a means
of conveying to the returning strikers Respondent’s unlawful
unilateral effectuation of many of the proposals which were
the subject of such bargaining. All of the interrogated em-
ployees were returning strikers whose recall Respondent had
unlawfully delayed until dates from 13 to 19 days after the
strikers’ offer to return. Rex began the first meeting by com-
plaining about the strike and expressing doubt that he wanted
the strikers to come back at all; he stated at all the meetings
that by working during the strike, the ‘‘non-union’’ employ-
ees had saved the returning strikers’ jobs; and he stated at
all the meetings that his prestrike feeling of a strong obliga-
tion to provide continued employment may have been under-
mined by a long strike which followed a unanimous rejection
of what he believed to be the best contract Respondent could
offer, and by the ‘‘ugliness’’ on the picket line. Further,
when Rex asked striker Antonacio individually why she had
bothered to return, she gave an obviously evasive reply—
namely, that she was not sure she was back. In view of all
the foregoing, I conclude that Rex’s interrogation of the re-
turning strikers about the reasons for their return constituted
proscribed interference, restraint, and coercion. See generally
Hunter Douglas, Inc. v. NLRB, 804 F.2d 808, 816–817 (3d
Cir. 1986), cert. denied 486 U.S. 1014 (1987), and cases
cited; Rossmore House, 269 NLRB 1176 (1984), affd. 760
F.2d 1006 (9th Cir. 1985).
No different conclusion is suggested by the honest testi-
mony of returning striker E. J. Smith that he did not feel
threatened by Rex’s question about why Smith had returned.
Whether particular conduct violates Section 8(a)(1) turns, not
on its actual effect, but on whether it had a reasonable tend-
ency in the totality of the circumstances to intimidate. NLRB
v. Keystone Pretzel Bakery, 696 F.2d 257, 259–260 (3d Cir.
1982); Hedstrom Co. v. NLRB, 629 F.2d 305, 314 (3d Cir.
1980), cert. denied 450 U.S. 996 (1981); Benjamin Coal Co.,
294 NLRB 572, 583 fn. 27 (1989). In any event, ‘‘As to this
sort of testimony, it has been observed that a feeling by em-
ployees ‘that they were under no sense of constraint . . . is
a subtle thing, and the recognition of constraint may call for
a high degree of introspective perception.’’’ NLRB v. Don-
nelly Garment Co., 330 U.S. 219, 231 (1947); see also Radio
Officers v. NLRB, 347 U.S. 17, 51 (1954). I note that counsel
did not ask Smith why he answered this question by Rex
only after being questioned individually, and not when Rex
posed it to the group.
I find no merit to Respondent’s contention that Rex’s
questions were not unlawful because they allegedly did not
implicate employees’ Section 7 rights. Rex’s questions about
why the questioned employee chose to return to work were
directed to employees who had participated in the admittedly
protected concerted activity of a strike for the purpose of in-
ducing Respondent to make a better contract offer to the
union which represented them, and who had returned to work
after that union’s reinstatement requests, and notwithstanding
503J. W. REX CO.
the employees’ action, in further exercise of their Section 7
rights, in rejecting Respondent’s most recent proposed con-
tract. Under these circumstances, Rex must have anticipated
that some employees’ explanations of why they had returned
would reveal their at least individual views about union rep-
resentation and/or the Union’s tactics. Furthermore, Rex must
have realized that in this setting, some returning strikers
might believe (even if erroneously) that their views about
these union matters were being solicited, and some returning
strikers might conceal, minimize, or otherwise misrepresent,
the role which their union views played in their decision to
return. Moreover, Iltis’ flip chart states that one employee
said he had returned because he was unhappy with the union
leadership; and another, stated that he had returned pursuant
to the Union’s offer to return (which reply Iltis’ flip chart
summarized as ‘‘offer was made to return’’).
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The International and Local (jointly called the Union)
are labor organizations within the meaning of Section 2(5) of
the Act.
3. The unit referred to in article I of the collective-bargain-
ing agreement between the Union and Respondent effective
between September 15, 1985, and September 17, 1988, is ap-
propriate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By virtue of Section 9(a) of the Act, the Union is now,
and has been at all times material herein, the exclusive rep-
resentative of the unit described in Conclusion of Law 3 for
the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other terms and con-
ditions of employment.
5. Respondent has violated Section 8(a)(5) and (1) of the
Act in the following respects:
(a) Failing and refusing to bargain in good faith with the
Union, with respect to the unit described in Conclusion of
Law 3, on and after November 7, 1988.
(b) Failing to honor the Union’s requests, on November 16
and 21, 1988, for continued negotiations with respect to that
unit.
(c) Unilaterally taking the following actions with respect
to that unit without the existence of a legally cognizable im-
passe: (1) establishing minimum wage rates; (2) reducing the
number of labor grades; (3) changing job classifications and
job descriptions; (4) modifying its job evaluation policy; (5)
changing wage rates of group leaders; (6) instituting a sales
bonus plan; (7) changing wage hour guarantees; (8) changing
the overtime policy; (9) changing the training period rate
progression; (10) changing the temporary transfer policy;
(11) changing the recall, layoff, and bumping practices; (12)
instituting a policy regarding the recall of striking employ-
ees; (13) changing the seniority policy; (14) changing the va-
cation replacement policy; (15) changing holiday pay and va-
cation policy; (16) instituting a merit increase policy; (17)
abandoning the prior practice of paying pro rata vacation pay
to employees who quit; (18) imposing a new requirement
that bargaining unit production employees (rather than bar-
gaining unit janitors) empty such production employees’
trash cans; and (19) changing the practice in connection with
the performance of unit work by supervisors.
(d) Unilaterally permitting the unit work of loading and
unloading trucks to be performed by truckdrivers not em-
ployed by Respondent.
6. Respondent has violated Section 8(a)(1) and (3) of the
Act by delaying the reinstatement of the following employ-
ees between November 16, 1988, and the dates after their re-
spective names:
Ann Antonacio November 29, 1988
Joel Audain April 10, 1989
Charles Ball December 1, 1988
Joe Bennett November 30, 1988
Jose Carreras December 1, 1988
Alan Clarke December 1, 1988
Terry Copenhauer November 29, 1988
George Cute December 5, 1988
Mary Denton November 30, 1988
Anthony Famularo December 5, 1988
Thomas Felder November 29, 1988
Tod Frederick December 5, 1988
David Gerhart April 3, 1989
Carson Heil December 5, 1988
Brian Hendricks April 19, 1989
Lucien Hendricks April 24, 1989
Robert Hinkle November 29, 1988
John Hodum November 29, 1988
J. Paul Homan November 30, 1988
Gary Kaminski April 19, 1989
Raymond Kreuson December 5, 1988
Arland Landis December 5, 1988
Alfred Leotta November 29, 1988
Victor Lopez December 1, 1988
Willie Lott November 30, 1988
Thomas Mastromatto December 1, 1988
David Michie April 3, 1989
John Novotny November 30, 1988
William Ordille December 5, 1988
Damascene Pierre April 17, 1989
Robert Reynolds November 29, 1988
Marcelo Rivera December 1, 1988
John Roeder March 1, 1989
Rogelio Rosa December 1, 1988
Harold Samuelson December 5, 1988
Gary Schoch December 5, 1988
Albert Smith November 30, 1988
Esau J. Smith December 5, 1988
William Stotsenburgh
III December 8, 1988
Jose Vallejo November 30, 1988
Eugene Waldspurger November 30, 1988
Charles Zeigler November 29, 1988
7. Respondent has violated Section 8(a)(1) of the Act by
interrogating employees about protected activity.
8. The unfair labor practices described in Conclusions of
Law 5–7 affect commerce within the meaning of Section
2(6) and (7) of the Act.
9. Respondent has not violated the Act with respect to the
elimination of paid lunchbreaks, or by changing its health in-
surance benefits, its pension plan, and its policy regarding ar-
bitration costs.
504 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
91 This is the relief requested on p. 69 of the General Counsel’s
opening brief. Respondent’s reply brief makes no claim that such a
commencement date, which accords with Board practice, is rendered
improper by the General Counsel’s statement on the record, on the
first day of the hearing, that backpay should begin after the 5-day
period. See Sinclair Glass Co., 188 NLRB 362, 363 (1971), enfd.
465 F.2d 209 (7th Cir. 1972).
92 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
THE REMEDY
Having found that Respondent has violated the Act in cer-
tain respects, I shall recommend that Respondent be required
to cease and desist therefrom, and from like or related con-
duct, and to take certain affirmative action necessary to ef-
fectuate the policies of the Act.
Respondent will be required, on the Union’s request, to re-
scind the unlawful unilateral actions taken by it; but nothing
in this Order is to be construed as requiring Respondent to
cancel any improvements in wages or other remuneration
without a request from the Union. In addition, Respondent
will be required, on request, to bargain with the Union in
good faith. Also, Respondent will be required to make em-
ployees whole for any losses they may have suffered by rea-
son of Respondent’s unlawful unilateral changes, and by rea-
son of Respondent’s unlawful delay in offering to recall
strikers. Because Respondent unduly delayed its recall offers,
the 5-day grace period which Respondent would otherwise
have been allowed to effectuate their return in an orderly
manner serves no useful purpose, and backpay will begin to
run as of the November 16, 1988, offer to return. Harris-
Teeter Super Markets, 242 NLRB 132 fn. 2 (1979), enfd.
644 F.2d 39 (D.C. Cir. 1981); Tall Pines Inn, supra, 268
NLRB 1392 fn. 3; Associated Grocers, supra, 253 NLRB at
34.91 All sums due under this Order shall include interest as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987). Loss of pay due to interruption or cessation of
active employment is to be computed in the manner pre-
scribed in F. W. Woolworth Co., 90 NLRB 289 (1950). In
addition, Respondent will be required to post appropriate no-
tices.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended92
ORDER
The Respondent, J. W. Rex Company, Lansdale, Pennsyl-
vania, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating employees about protected activity in a
manner constituting interference, restraint, or coercion.
(b) Discouraging membership in United Steelworkers of
America, AFL–CIO–CLC, or Local Union No. 5621, United
Steelworkers of America, AFL–CIO–CLC (jointly called the
Union), by delaying the reinstatement of strikers who have
unconditionally offered to return, or by otherwise discrimi-
nating in regard to hire or tenure of employment or any term
or condition of employment.
(c) Failing and refusing to bargain in good faith with the
Union with respect to the unit referred to in Article I of the
collective-bargaining agreement between the Union and Re-
spondent effective between September 15, 1985, and Septem-
ber 17, 1988.
(d) Failing to honor requests by the Union for continued
negotiations with respect to that unit.
(e) Without the existence of a legally cognizable impasse,
making unilateral changes with respect to minimum wage
rates; the number of labor grades; job classifications and job
descriptions; job evaluation policy; wage rates of group lead-
ers; sales bonus plan; wage hour guarantees; overtime policy;
training period rate progression; temporary transfer policy;
recall, layoff, and bumping policies; policy regarding the re-
call of striking employees, seniority policy; vacation replace-
ment policy; holiday pay and vacation policy; merit increase
policy; payment of pro rata vacation pay to employees who
quit; job classifications required to empty trash cans; the
practice in connection with the performance of unit work by
supervisors; or any other mandatory subjects of collective
bargaining, within the previously described bargaining unit.
(f) Making unilateral changes with respect to the assign-
ment of unit work to persons not on Respondent’s payroll,
or any other mandatory subjects of collective bargaining,
within the previously described bargaining unit, without giv-
ing the Union prior notice and an opportunity to bargain.
(g) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of their rights
under Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Make the following employees whole for any loss of
pay they may have suffered by reason of the discrimination
against them, in the manner set forth in the remedy section
of this decision:
Ann Antonacio Arland Landis
Joel Audain Alfred Leotta
Charles Ball Victor Lopez
Joe Bennett Willie Lott
Jose Carreras Thomas Mastromatto
Alan Clarke David Michie
Terry Copenhauer John Novotny
George Cute William Ordille
Mary Denton Damascene Pierre
Anthony Famularo Robert Reynolds
Thomas Felder Marcelo Rivera
Tod Frederick John Roeder
David Gerhart Rogelio Rosa
Carson Heil Harold Samuelson
Brian Hendricks Gary Schoch
Lucien Hendricks Albert Smith
Robert Hinkle Esau J. Smith
John Hodum William Stotsenburgh III
J. Paul Homan Jose Vallejo
Gary Kaminski Eugene Waldspurger
Raymond Kreuson Charles Zeigler
(b) Upon request by the Union:
(1) Rescind the minimum wage rates and merit increase
policy established about November 29, 1988.
(2) Restore the labor grades in existence until about No-
vember 29, 1988.
(3) Rescind the changes made about November 29, 1988,
in (a) job classifications and job descriptions; (b) the job
505J. W. REX CO.
93 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
94 The complaint contains two paragraphs numbered 12(a)(xxi),
both of which are dismissed. The complaint contains no par.
12(a)(xx).
evaluation policy; (c) wage rates for group leaders; (d) wage
hour guarantees; (e) overtime policy (f) the training period
rate progression; (g) temporary transfer policy; (h) recall,
layoff, and bumping policies; (i) seniority policy; (j) vacation
replacement policy; and (k) holiday pay and vacation policy.
(4) Abolish the sales bonus plan.
(5) Rescind the policy instituted about November 29,
1988, regarding the recall of striking employees.
(6) Resume the practice of paying pro rata vacation pay
to employees who quit.
(7) Rescind the requirement that bargaining unit produc-
tion employees empty their trash cans.
(8) Rescind the changes made, after the expiration of the
bargaining agreement on September 17, 1988, in the practice
in connection with the performance of unit work by super-
visors.
(9) Abandon the practice of permitting the unit work of
loading and unloading trucks to be performed by truckdrivers
not employed by Respondent.
However, nothing in this Order is to be construed as re-
quiring Respondent to cancel any wage or other financial im-
provements without a request from the Union.
(c) Make employees whole for any loss of pay they may
have suffered by reason of Respondent’s unlawful unilateral
actions, in the manner set forth in the remedy section of this
decision; as to the unilateral abandonment of the practice of
giving pro rata vacation pay to employees who quit, the pay-
ees are to include, but not be limited to, Ann Antonacio, Ed-
ward Camburn, John Fillman, and Kenneth Smith.
(d) On request, bargain in good faith with the Union as
the exclusive representative of the employees in the fore-
going appropriate unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of em-
ployment and, if an understanding is reached, embody the
understanding in a signed agreement.
(e) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(f) Post at its Lansdale, Pennsylvania facility copies of the
attached notice marked ‘‘Appendix.’’93 Copies of the notice,
on forms provided by the Regional Director for Region 4,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in conspicuous
places including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the
Respondent to ensure that the notices are not altered, de-
faced, or covered by any other material.
(g) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
IT IS FURTHER RECOMMENDED that paragraphs 12(a)(vii),
(xix), and (xxi) of the complaint are dismissed.94