R. D. Goss, Inc.

National Labor Relations Board - Board DecisionsJun 5, 1973

203 N.L.R.B. 1173 (N.L.R.B. 1973)

R. D. GOSS, INC. R. D. Goss, Inc. and International Brotherhood of Electrical Workers, Local 5, AFL-CIO. Case 6- CA-6212 June 5, 1973 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On February 26, 1973, Adminstrative Law Judge Ivar H. Peterson issued the attached Decision (errata issued on March 2, 1973) in this proceeding. Thereaf- ter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in answer to Respondent's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record I and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge 3 only to the extent consistent herewith .4 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that R. D. Goss, Inc., Clearfield, Pennsylvania, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning rates of pay, wages, hours, and other terms and condi- tions of employment with International Brotherhood of Electrical Workers, Local 5, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All construction electricians, including ap- prentices and working foremen working out of the R. D. Goss, Inc., Clearfield, Pennsylvania, place of business, excluding all other employees, office clerical employees and guards, profession- al employees and supervisors as defined in the Act. (b) Questioning its employees concerning their in- terest or activity on behalf of the aforesaid Union or 1173 any other labor organization and taking pictures of peaceful pickets. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain with International Brotherhood of Electrical Workers, Local 5, AFL- CIO, as the exclusive representative of the employees in the above-described appropriate unit and, if an understanding is reached, embody said under- standing in a written signed agreement. (b) Upon application, offer to reinstate the striking employees, to their former jobs, or if they no longer exist , to substantially equivalent jobs, and to make them whole for the earnings they lost as a result of any failure to return them to work 5 days after their un- conditional application to return, plus 6 percent inter- est. (c) Post at its Clearfield, Pennsylvania, plant cop- ies of the attached notice marked "Appendix." 5 Cop- ies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's authorized representative, shall be post- ed by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, de- faced, or covered by any other material. (d) Notify the Regional Director for Region 6, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply here- with. i The Respondent has requested oral argument This request is hereby denied as the record , exceptions, and briefs adequately present the issues and positions of the parties. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge . It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C A 3, 1951). We have carefully examined the record and find no basis for reversing his findings. 3 The Administrative Law Judge finds that taking a picture of pickets under the circumstances of this case is a violation of Sec. 8(a)(1) of the Act. We agree and find that , in accord with the testimony of a witness otherwise credited , Goss did, in fact , take a picture. Events occurring more than 6 months prior to the filing of the charges of this case are used as background and are not found to be separate viola- tions of Sec 8(a)(1) or 8(a)(5) of the Act 5 In the event that 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." 203 NLRB No. 175 1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated Federal law by refusing to bargain collectively with International Brother- hood of Electrical Workers, Local 5, AFL-CIO, and unlawfully questioned employees relating to their union activity and unlawfully took a picture of peace- ful pickets: WE WILL NOT refuse to bargain collectively with International Brotherhood of Electrical Workers, Local 5, AFL-CIO, as the exclusive representa- tive of all employees in the appropriate bargain- ing unit . The appropriate unit is: All construction electricians, including ap- prentices and working foremen working out of the R. D. Goss, Inc., Clearfield, Pennsylvania, place of business, excluding all other employ- ees, office clerical employees and guards, pro- fessional employees and supervisors as defined in the Act. WE WILL NOT unlawfully question employees concerning their concerted or union activity or otherwise interfere with their rights as guaran- teed in Section 7 of the National Labor Relations Act, as amended. WE WILL NOT unlawfully take pictures of peace- ful pickets. WE WILL upon request bargain with Interna- tional Brotherhood of Electrical Workers, Local 5, AFL-CIO, as the exclusive representative of the employees in the above-described appropri- ate unit and, if an understanding is reached, em- body said understanding in a written signed agreement. WE WILL, upon application, offer full reinstate- ment to any striking employees and pay them for the earnings they lost as a result of any failure to return them to work 5 days after their uncondi- tional application to return, plus 6 percent inter- est. R. D. Goss, INC (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 1536 Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644-2944. DECISION STATEMENT OF THE CASE IVAR H. PETERSON , Administrative Law Judge: I heard this case in Clearfield, Pennsylvania, on November 29, 1972, through December 2, 1972, both inclusive, upon the com- plaint issued by the Regional Director for Region 6 on September 29 based upon charges filed by Local 5, Interna- tional Brotherhood of Electrical Workers, AFL-CIO, on July 26, as amended on September 29. Briefly stated, the complaint, as amended, alleged that since on or about Janu- ary 27 the Respondent had unlawfully refused to bargain with the Union as the exclusive representative of all con- struction electricians, including apprentices and working foremen, working out of the Respondent's Clearfield place of business, for which unit the Union had been certified following an election on September 21, 1971. Additionally, the complaint alleged that the unit employees went on strike on or about June 30, 1972, which strike was caused, pro- longed, and continued by the unfair labor practices of the Respondent. In its answer filed on October 4, the Respon- dent admitted certain jurisdictional allegations but denied that it had committed any unfair labor practices. Pursuant to notice issued on November 21, counsel for the General Counsel advised that he intended to amend the complaint at the trial to substitute a new allegation for paragraph 6(a) of the complaint. Upon the entire record in the case and my observation of the witnesses as they testified, and a careful consideration of the briefs filed with me by the parties on January 15, 1973, I make the following: I FINDINGS OF FACT I JURISDICTION Respondent, a Pennsylvania corporation, with its sole place of business located in Clearfield, is engaged in electri- cal contracting. During the 12-month period immediately preceding the issuance of the complaint, the Respondent purchased and received goods and materials valued in ex- cess of $50,000 directly from points outside the Common- By letter dated January 19, counsel for the Respondent undertook to "correct what I consider to be rather substantial errors of fact relied upon" by counsel for the General Counsel in the latter's brief. The unopposed motion of counsel for the General Counsel to correct the transcript is hereby granted R. D. GOSS, INC. wealth of Pennsylvania for use at its Clearfield facilities. I find that the Respondent is and at all times material has been an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Interference, Restraint, and Coercion Basically, the Respondent's business is divided into resi- dential and nonresidential work. The former relates to serv- ices performed in homes and apartments with a maximum of four families residing therein. Nonresidential work con- cerns retail stores , shopping centers , service stations , hospi- tals, and other large structures. Nonresidential work is divided into rated and nonrated work; the former requires that the prevailing union wage scale must be paid, whereas the latter relates to work on which the union scale is not required to be paid. As noted above, the Union was certified as the exclusive collective-bargaining representative on Sep- tember 21, 1971, for the following appropriate unit within the meaning of Section 9(b) of the Act: All construction electricians, including apprentices and working foremen working out of the R. D. Goss, Inc., Clearfield, Pennsylvania, place of business, excluding all other employees, office clerical employees and guards, professional employees and supervisors as de- fined in the Act. On June 15, 1971, I heard a case involving the Respon- dent and the Union concerning the termination of three employees and other allegations that the Respondent had violated Section 8(a)(1) of the Act. On July 27, 1971, I issued my Decision in that proceeding finding that the Respondent had engaged in the alleged unfair labor practices. That deci- sion (Case 6-CA-5412) was adopted by the Board on Au- gust 25, 1971, in the absence of exceptions. Walter Fleck was one of the discriminatees in that case . During the last week in January 1972, Goss admittedly arranged to have dinner with Fleck and Fleck credibly testified that Goss questioned him about the Union and told him that he could be assured of continued employment with the Respondent if he gave up the Union. According to Fleck he answered that if Goss would sign an agreement with the Union he would gladly work for him. Fleck further testified that Goss replied that he had no intention of signing a contract with the Union and stated that the Union was controlled by the Mafia. About the middle of January Goss went to the hospital construction site in Lock Haven to talk with Bruce Young, another discriminatee from the previous case. Goss ques- tioned Young about what the Union had to offer him that the Respondent could not offer, to which Young replied that the Union might be able to secure more benefits and higher wages for the employees. Goss then took a copy of the union contract from his pocket and, according to Young and another employee who was present, Regis Grattan, stat- ed that some day, "I might have to sign a union agreement, but until then, I run an open shop. I'll never sign a union agreement unless they force me to. The Union was Mafia 1175 run and they were people manipulators." Larry Guelich, an employee, testified without denial that about March 30 he asked Goss for a raise in pay. Goss called Guelich an agitator and stated that Guelich and Young were of the same caliber. Goss inquired what Gue- lich felt about the Union, to which the latter replied that he thought it might be beneficial to the employees. Goss then spoke at some length about the Union and concluded his remarks by saying that he would never sign an agreement with "a Mafia outfit like that." On April 20, a meeting was held at the Clearfield Com- munity Center attended by employees as well as manage- ment personnel. Near the end of the meeting one of the employees inquired if Goss had heard from the Union. Goss replied that the employees who had been discriminatorily discharged had been reinstated with backpay and that two negotiating sessions had been held with the Union. Howev- er, he stated that he had not heard from the Union for some time and further said that he had no intention of signing a contract with the Union because it was controlled by the Mafia.2 On May 25 Goss summoned Harold Graham, a working foreman, to his office. According to the credited testimony of Graham, Goss stated that he was still attempting to "get something" on the "troublemakers" that would stand up in court. Graham further testified, and I credit him, that Goss stated that he was "never going to sign a contract" with the Union. On June 25 Goss called William Swisher, also a working foreman, to his office and gave him a letter stating that Swisher was being laid off. According to Swisher, Goss asked him why he and Harold Graham had done this to him. He also stated, "that he would lock the front door and throw the keys away before he would ever sign a union contract." The employees went on strike on June 30. Bernard Bear- er, an employee who joined the strike, testified that while he and Ed Thomas, another striking employee, were walking the picket line in front of the Clearfield Hospital, Goss drove up and started talking to them. Goss had a camera with him and stated that he could finish the hospital job with the crew that he had and that he could always get more men. Thomas then pointed to the picket sign and told Goss, according to Bearer, "all you have to do is sign right here," pointing to that portion of the sign which stated Goss "re- fuses to sign a bargaining agreement with Local No. 5 IBEW, AFL-CIO." It is, of course, elementary that questioning employees regarding their own union activities and sympathies as well as those of fellow employees is violative of Section 8(a)(1) of the Act. In addition, the Board has held that an employer's predictions to employees that it would never sign a union contract or that it would close the doors before doing so is equally violative of Section 8(a)(1) of the Act. It has also been held that an employer has no right to take pictures of employees engaged in peaceful picketing of his 2 A number of witnesses produced by the Respondent testified as to wheth- er Goss did state that he would not sign a union contract or that the Union was controlled by the Mafia . Eight of the eleven witnesses who testified for the Respondent stated that they did not recall whether Goss made these statements. 1176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD premises in a lawful strike , in the absence of a showing of justification or of valid explanation for such action. Flam- beau Plastics Corp., 167 NLRB 732, 743; Gopher Aviation, Inc., 160 NLRB 1698. Such conduct can amount to unlaw- ful surveillance and, consequently , interferes with , restrains, and coerces employees in the exercise of their rights guaran- teed them in Section 7 of the Act and, therefore, is violative of Section 8(axl) of the Act . I find that in the foregoing respects the Respondent violated Section 8(axl) of the Act. B. The Alleged Refusal To Bargain Following its certification as exclusive bargaining repre- sentative on September 21, 1971, the Union first met with representatives of Respondent on October 15. At the outset, William Branthoover, president of the Union, distributed a copy of the master labor agreement between the Union and Western Pennsylvania Chapter, Inc., National Electrical Contractors Association, herein referred to as NECA, which was effective from 1968 to 1972. The parties dis- cussed the proposed wage scale in this agreement as it ap- plied to the Respondent's residential and nonresidential work. The Respondent expressed considerable concern re- garding the residential wage scale . The Union's representa- tives informed the Respondent that the proposed contract would not apply to work in progress or upon work on which the Respondent had theretofore submitted a bid. The meet- ing lasted about an hour and was recessed upon the Respondent's request for more time to consider the various provisions of the proposed contract. Another meeting was scheduled for November 5, but this was later changed to November 4. Counsel for the Union stated that "at the very onset of the November 4 meeting, Goss stated that about one third of his work consisted of residential work or small commer- cial work" and that "he couldn't possibly do that kind of work" and pay the union scale because he would not be competitive . Representatives of the Union stated that they recognized that and , according to Kaplan, "while no specif- ic wage scale was submitted at that time . . . there was some discussion that there would be a lesser rate made available to him for that type of work." 3 The Respondent stated that he did not wish NECA to represent him in the resolution of grievances and the Union responded that with respect to matters affecting the Respondent the latter could name any- one he desired to represent him. The Respondent also disap- proved the clauses relating to subletting, the apprentice program, the restrictions placed upon working foremen, and possible deductions that would have to be made from the checks of employees . With respect to the wage scale for residential work, the Union advised Goss that its Interna- tional at that time was negotiating a contract with NECA that would lower the residential rate to about $5 an hour. Most of the negotiating meeting was taken up with a discussion of health and welfare programs . At the outset Goss inquired why his bargaining unit employees could not remain enrolled in the present health and welfare coverage which was provided through a plan administered by Associ- i In fact, only about 8.5 percent of Respondent 's work was residential. ated Builders and Contractors, Inc., herein referred to as ABC. In answer, the Union stated that this was not practical because the Respondent could not give steady employment to all of its employees . It is well known that in the construc- tion business the number of an employer's employees varies with the amount of work available and in consequence, Goss might have work for an electrician 1 month but not the next. Once an employee left the Respondent's employ, he would lose the coverage of the ABC plan and be'without health and welfare benefits. Thus, the Union argued that under its plan an electrician would receive health and wel- fare coverage without regard to the employer for whom he worked. With respect to the Respondent's concern regarding the cost and coverage provided by the Union's health and wel- fare plan, a comparison indicated that the Union's plan provided more extensive coverage and its cost amounted to 30 cents per hour as compared to 28 cents per hour for the ABC plan. Finally, Goss contended that an insurmountable obstacle to agreement was the requirement in the ABC plan that 75 percent of the Respondent's total number of eligible employees had to be enrolled in the plan or else the Respon- dent would lose the coverage. The Respondent contended that by removing the unit employees from the ABC plan he could not be able to satisfy the 75-percent requirement. In response to this, the Union suggested that the Respondent divide its payroll into two segments, one covering those employees represented by the Union and the other nonunit personnel including Goss. Counsel for the Respondent undertook to contact the insurance company to inquire whether the Respondent's employees could be divided into two segments, with the Respondent being required only to enroll 75 percent of the nonunit employees to retain the ABC coverage. Under date of November 18, 1971, counsel for the Respondent mailed counsel for the Union a letter stating that ABC required that 75 percent of the eligible employees be enrolled in its plan before coverage could be extended and that this require- ment could not be waived. The representatives of the Union indicated that the International had under consideration negotiations with regard to the residential agreement and wage scale which, if satisfactorily concluded, would put it in a position to offer the Respondent a residential wage scale in the area of $5 per hour which the Respondent indicated, in the October meeting, would be acceptable to it. Early in January 1972 Michael Namadan, an Internation- al representative of the Union, was assigned to assist the Union in its negotiations with the Respondent. He credibly testified that early in January he telephoned Goss to ascer- tain what obstacles the latter felt would prevent the execu- tion of an agreement . According to Namadan , Goss stated that the wage scale in the proposed contract was too high for his residential work and suggested that the International either place Clearfield County in the jurisdiction of Local 996 IBEW, or reduce the residential rate of the Union.4 Early in May the International approved the agreement and thereupon Namadan telephoned Goss and informed 4 The Respondent , through another concern nearby , had an agreement with Local 996 R. D. GOSS, INC. him of the latest developments and requested that the par- ties set a date to begin negotiations . Namadan credibly testified that Goss stated he did not wish to meet with the Union and that, as far as he was concerned , he would not execute an agreement with the Union. In addition, Nama- dan credibly testified that Goss stated that, since the law requires the Respondent to meet with the Union, the Union should send a letter requesting a date to begin negotiations, but that he (Goss) would only be "going through the mo- tions ." Namadan did mail a letter and the parties agreed to meet on May 31. When they met on May 31, the Union gave the Respondent a copy of the newly completed residential agreement and advised that the basic rate therein was $5.25 per hour , which was about the same as the Respondent paid under the contract with Local 996. The cost of the fringe benefits amounted to only 30 cents per hour as compared with 45 cents per hour in the Local 996 agreement . In addi- tion, the nonresidential rate of $8 .60 per hour proposed in the original contract was being reduced by 10 percent, or 86 cents per hour, to a figure of $7.74 per hour. The Respondent made no comment on the new proposal, but stated that he did not desire to pay travel expenses to employees . The Union responded that if that matter pre- sented a problem it would waive travel expenses on jobs on which the Respondent had already submitted bids and, in addition, it would be willing to negotiate further on travel expenses on future jobs. Goss next raised an objection to the payment of double time for overtime work and the Union then conceded overtime work could be done at time and a half. The parties then turned to a discussion of the scope of the residential agreement . The proposal of the Union covered only work performed on units built primarily for family residence , not exceeding four-unit apartments. Goss claimed that the proposal was not adequate because it did not cover small stores , churches, service stations , and the like. In response , the Union stated that the Respondent could extend the scope of the residential agreement to in- clude this type of work at the $5 .25 per hour rate. The next subject discussed was the health and welfare program . Goss referred to the 75-percent requirement of the ABC plan and stated that it was a stumbling block to reach- ing an agreement . In addition , Goss alleged that while the difference between the cost per hour of the two programs was slight , it had paid only 25 percent of the hourly cost of the ABC plan whereas , in contrast , it would have to pay the full hourly cost of the Union plan. In reply, the Union stated that negotiations could continue on those points and asked if the Respondent objected to any other aspect of the pro- posal . The Respondent then requested time to study the proposals, and later the parties agreed to meet on June 7. Later that day Namadan realized June 7 would be incon- venient for him and called Waters. The parties agreed to meet on June 12. However , Waters told Namadan that he doubted that any subsequent meetings would occur, be- cause Goss "was not going to go along with the agree- ments-any of the agreements and that he would get back to [Namadan ] the first of the week to let [him] know of Mr. Goss' stand after he had a chance to discuss the matter with him further ." Waters did not telephone Namadan and the latter, therefore , called Waters who stated that he had been 1177 busy and had not had an opportunity to discuss the matter with Goss . A few days thereafter , according to Namadan's uncontradicted testimony , Waters did telephone him and stated that Goss definitely would not sign a contract. In a letter dated June 7 , Waters wrote Namadan that an impasse in negotiations had been reached and the June 12 meeting was therefore cancelled . According to Namadan 's undenied testimony, upon receipt of this letter , he telephoned Waters and stated that in the view of the Union an impasse had not been reached and that the Union desired to continue negoti- ations at any time or place in hopes that an agreement could be reached . Namadan further denied the claim in Waters' letter that he (Namadan) had suggested future meetings should be held only if there was a reasonable chance of reaching an agreement . The conversation between Nama- dan and Waters ended by the latter reiterating the statement that Goss would not sign a contract. Early in August 1971, an organizational dinner was held by NECA at Ridgway, Pennsylvania , for the purpose of familiarizing electrical contractors in the Ridgway-Brad- ford area with the benefits of joining an employer associa- tion . Goss attended the meeting in his capacity as president of Elco Electrical Contractors , Ridgway , Pennsylvania. The chapter manager of NECA, Fred Wilkin, testified that he asked Goss if he intended to become a member of the association ; Goss replied , according to Wilkin , that he was interested but desired to be assured that membership in the association would not require that he sign a contract with the Union, stating that as long as he had money and strength to fight he would not enter into an agreement with the Union. Two of the Respondent 's foremen , Harold Graham and William Swisher , testified that just before the three discrimi- natees in the prior case returned to work in August 1971, Goss told them that they should endeavor to "get some- thing" on the three employees so that he could terminate them and substantiate his actions in court . Goss gave Swish- er a notebook in which to record information about the returned discriminatees and, as Swisher credibly testified, Goss questioned him as to how he had voted in the election. Swisher answered that he had voted in the negative. Both Graham and Swisher also testified that at a number of meetings of foremen Goss stated that he had no intention of signing a contract with the Union . During the last week in January Goss arranged to have dinner with Fleck, and testified that he desired to talk with Fleck because the latter was experiencing some domestic problems and his father had recently passed away . However, Fleck testified, and I credit him , that his father did not die until April 1972; he further testified that at this meeting Goss questioned him as to why the employees desired to be represented by the Union. In answer, Fleck stated that they desired the benefits and wages that the Union might obtain for them . Further, Fleck testified that Goss told him that he could be assured of continued employment with the Respondent if he gave up the Union , to which Fleck answered that if Goss signed the agreement with the Union he would gladly work for Respondent . Fleck added that in response Goss stated that he had no intention of signing a contract with the Union because it was controlled by the Mafia. The next day, so Fleck testified , he relayed the substance of this conversation 1178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with Goss to the other employees , saying that Goss said he would never sign a contract with the Union and that the latter was controlled by the Mafia; he also told employees that Goss had conditioned his future employment with the Respondent upon renouncing his affiliation with the Union. In mid-January, as Young and Grattan were working at a hospital construction site in Susqueview , Goss came to the site and asked Grattan to leave so that he could speak to Young. Grattan went into the next room, but was able to see and hear the conversation between Goss and Young. Young testified that Goss had accused him of calling the Respondent names, to which Young replied that Goss was correct if he was referring to Young's attempts to organize the employees . In response , Goss inquired what the Union had to offer Young that the Respondent could not offer, and Young replied that the Union might be able to secure more benefits and higher wages for the employees . There- upon , Goss took a copy of the union contract from his pocket and, according to Young and Grattan, stated "some- day I might have to sign a union agreement , but until then, I run an open shop. I'll never sign a union agreement unless they force me to . The Union was Mafia run and they were people manipulators." In his brief, counsel for the Respondent terms the testi- mony of Young and Fleck as incredible , in view of the fact that they were two of the three charging parties in the 1971 proceeding and, so he argues, if their testimony is believed it follows that Goss, "with full knowledge of the position and interest of these men , still smarting from the rebuke of that prior decision , and knowing full well that any statement that he might make to them would clearly and unequivo- cally be used by them against him at any time when such a statement would be necessary or useful , nonetheless alleg- edly committed a direct , flagrant and clear violation of the Act by relating his disinclination to execute an agreement to them." He continues that by saying that although "any- thing in this world is possible , it certainly tests one's credi- bility to think that a man of Mr . Goss' position and experience would ever fall into such a trap, even if one assumes he was inclined to make such a statement, which is, of course, neither the fact nor his present inclination." Counsel contends that there are two reasons why all the charges against the Respondent should be dismissed: (1) because the General Counsel "fully failed to meet his bur- den of proof to show any violation of the Act, let alone the ones alleged" and, (2) because of "the stale nature of the evidence adduced, which not only has no probative value, but, indeed, was probably improperly received and certain- ly would be improperly considered at this juncture , in light of the total testimony received in the case ." However, coun- sel appears to have overlooked the testimony of Wilkin, chapter manager of NECA, who testified that at the August NECA meeting Goss said that he was interested in joining NECA but wished to be assured that by doing so he would not be required to sign a contract with the Union, inasmuch he intended to fight the Union as long as he had money and strength to do so . Moreover, Foremen Graham and Swisher testified that shortly before the three discriminatees in the preceding case returned to work in August 1971, Goss stat- ed that they should endeavor to "get something" on the three in order that he might terminate them and support his action in court . Indeed , according to Swisher, Goss gave him a notebook in which to record information about the returned employees and further questioned Swisher as to how he had voted in the election . Goss testified that at the NECA meeting in August he did make a statement to the effect that the Respondent "had lost the election and was going . . . to go to negotiations ," and that he carried the union agreement with him and stated that he "couldn't sign an agreement in that form , because just economically it was not feasible for him to sign it in that form." Goss denied that at the July 26 meeting with the employ- ees he stated that he would never sign a union agreement. According to him he "had been reprimanded by the court here that I couldn't or shouldn't say this type of thing." I am convinced that the record in this case amply demon- strates that the Respondent did not bargain in good faith with the Union . In March 1971, the month following the commencement of organizational activity by the employees, three were disciminatorily discharged, as I found in the prior proceeding to which no exceptions were taken. A few days before the Board election on April 7, the Respondent held a meeting for the bargaining unit employees at its shop with management personnel in attendance . Six employees credibly testified that at that meeting Goss described the history of the business and the experiences his family had had with labor organizations . He stated that he preferred to have a nonunion operation and that the employees ' efforts to unionize would be meaningless because he would never sign a contract with the Union because he considered it to be controlled by the Mafia. As we have seen , at the May 31 meeting the Union gave up a number of demands in response to objections raised by the Respondent . However , Goss again raised the familiar 75-percent requirement of the ABC plan as a stumbling block and , for the first time , interjected the objection that while the difference between the relative costs of the two health and welfare programs was slight , the Respondent paid only 25 percent of the hourly cost of the ABC plan whereas it would have to pay the full hourly cost of the Union's plan. Quite obviously, the Respondent had known of this factor in the earlier negotiations but had never inter- jected this objection . When the Union proposed that negoti- ations continue in regard to the health and welfare items and inquired whether the Respondent had any objections to other aspects of the Union 's proposal , counsel for the Re- spondent requested more time to study the proposal. In response to the Union's question as to how much time the Respondent desired, Goss replied, "I can give them a reply in 15 minutes ." Namadan , realizing that the June 7 date the parties had agreed upon to resume negotiations was incon- venient for him, called counsel for the Respondent to sug- gest the meeting be held on June 12. Counsel for the Respondent stated he doubted that any subsequent meeting would occur because Goss "was not going to go along with ... any of the agreements" and that he would let Namadan know the first of the week as to the stand Respondent would take. Waters did not telephone Namadan and the latter then called Waters , who a few days later telephoned Namadan and stated that Goss definitely would not sign a contract. In these circumstances , I do not agree with the contention of counsel for the Respondent , as reflected in his June 7 R. D. GOSS, INC. letter to Namadan, that an impasse had been reached in the negotiations. It is not denied that after receiving Waters' letter Namadan telephoned Waters and stated that the Union did not feel that an impasse had been reached and that it desired to continue negotiations at any time or place in the hope of reaching an agreement . Namadan credibly testified, and his testimony is not denied, that his conversa- tion with Waters ended with the latter saying that the Re- spondent would not sign a labor agreement. In my opinion, the totality of the facts clearly reveals that the Respondent was "giving the Union a runaround while purporting to be meeting with the Union for the purpose of collective bargaining." N.L.R.B. v. Athens Manufacturing Company, 161 F.2d 8 (C.A. 5, 1947). It seems clear that the Respondent attempted to mislead the Union in claiming that a serious obstacle to reaching an agreement was the alleged inapplicability of the originally proposed contract to residential work which, according to the Respondent, com- prised one-third of its work. Actually, however, only 8.5 percent of the Respondent 's work was of a residential na- ture . Such misrepresentation , in my view, is an indication of bad-faith bargaining . Although Respondent led the Union to believe that it would be willing to sign a residential con- tract containing a rate of approximately $5 per hour, when the Union proposed such a rate the Respondent, in its letter of June 7, asserted that the cost of the contract was still too high. Moreover, the Respondent made no concessions or counterproposals, nor did the Respondent make a good- faith effort to solve the alleged issue regarding the 75-per- cent ABC enrollment requirement. Executive Vice Presi- dent Woodrow Moats of ABC testified that the Respondent could have, as a matter of fact , separated its employees into two groups , one under the union plan and the other under the ABC plan. Considering all the foregoing factors, I conclude and find that the Respondent has unlawfully refused to bargain with 1179 the Union and that it thereby violated Section 8(a)(5) and (1) of the Act. I further find that the strike which began in June was caused and prolonged by the Respondent's unfair labor practices. CONCLUSIONS OF LAW 1. The Respondent, R. D. Goss, Inc., is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Brotherhood of Electrical Workers, Lo- cal Union No. 5, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By coercively interrogating its employees concerning their union interest and activities, the Respondent violated Section 8(a)(1) of the Act. 4. By unlawfully refusing to bargain collectively with the Union, Respondent violated Section 8(a)(5) and (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices burdening and affecting commerce within the meaning of Section 2(6) and (7) of the Act. REMEDY I find that it is necessary that the Respondent be ordered to cease and desist from the unfair labor practices found and to take certain affirmative action, including reinstating all strikers, to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, upon their uncondi- tional offer to return to work. If necessary to provide jobs for strikers in the event their unconditional application to return to work, the Respondent shall discharge any replace- ment employees and, in addition, pay the strikers backpay from 5 days after their application to return to work until they are in fact employed. [Recommended Order omitted from publication.]