San Isabel Electric Services, Inc.

National Labor Relations Board - Board Decisions

Aug 31, 1976

225 N.L.R.B. 1073 (N.L.R.B. 1976)

SAN ISABEL ELECTRIC SERVICES, INC.
San Isabel Electric Services , Inc. and Local Union No.
667 of the International Brotherhood of Electrical
Workers, AFL-CIO. Cases 27-CA-4156, 27-CA-
4370, and 27-CA-4439
August 31, 1976
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND WALTHER
On April 16, 1976, Administrative Law Judge
Martin S. Bennett issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a brief, and the Charging Party filed a brief
in support of the Administrative Law Judge's Deci-
sion. In addition, the General Counsel filed cross-
exceptions and a brief, and Respondent filed an an-
swering brief to the cross-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 and the at-
tached Decision in light of the exceptions and briefs,
and has decided to affirm the rulings, findings, con-
clusions, and recommendations of the Administra-
tive Law Judge only to the extent consistent here-
with.
Although we agree with the Administrative Law
Judge that Respondent did not bargain in good faith
with the Union on and after June 14, 1974, in viola-
tion of Section 8(a)(5) and (1) of the Act, that Re-
spondent discharged strikers Walter Smith and
James McQueen in violation of Section 8(a)(3) and
(1) on December 16, 1974, and that Respondent re-
fused to return to work all other strikers whose jobs
had not been eliminated after their unconditional of-
fer to return on February 26, 1975, in violation of
Section 8(a)(3) and (1), we do so only for the reasons
that follow.
By and large, the facts of the case are not in dis-
pute.
Background
As an electrical public utility, Respondent is en-
gaged in the manufacture and sale of electricity in
southern Colorado. Respondent's principal office
and place of business is located in Pueblo, Colorado,
and it has maintained places of business at pertinent
times in La Veta, Trinidad, and Aguilar, Colorado.
Since 1953, the Union has been certified to represent
employees of the Respondent in essentially the fol-
lowing unit:
1073
All line and service foremen, journeymen line-
men, groundmen, stockroom clerks-building
maintenance, meter testers, meter readers, truck-
drivers, collectors, appliance servicemen, cash-
ier-stenographer, cashier-clerk, and apprentices
employed by San Isabel Electric Services, Inc.;
but excluding office clerical employees and all
guards, professional employees, and supervisors
as defined in the Act.
Apparently, Respondent and the Union had an
amicable collective-bargaining relationship until ear-
ly 1973, when Respondent hired George L. Dibble as
executive vice president with principal responsibility
for labor relations. Thereafter, in the spring of 1973,
Respondent's president, Edward Gaither, decided to
seek substantial changes in the collective-bargaining
agreement expiring in June of that year in order "to
achieve the maximum amount of work accomplished
for minimum dollar cost."
Among other things, Respondent sought to replace
a number of specific safety and work rules contained
in the labor contract, as well as a provision estab-
lishing a point union-management safety committee
with the authority to make additional safety rules,
with a provision giving Respondent virtually abso-
lute discretion to prescribe such rules. The Union de-
clined to agree to this, as well as a number of other
changes desired by Respondent in the labor contract.
Thus, as required by the interest arbitration clause of
the collective-bargaining agreement, the parties pre-
sented their cases to an arbitrator. In an award dated
November 14, 1973, the arbitrator resolved most of
the outstanding issues in favor of the Union. He also
noted that either party could, by timely notice, termi-
nate any future contract entirely, thus avoiding resort
to interest arbitration in case no agreement was
reached on a new contract.
April-July 1974
In view of what it considered to be the unsatisfac-
tory outcome of the 1973 interest arbitration, Re-
spondent gave notice to the Union on April 2, 1974,1
that it intended to cancel the labor contract expiring
on June 15. Subsequently, on April 11, the Union
wrote Respondent asking that negotiations begin on
a new contract, and outlining nine changes it wished
to make in the existing collective-bargaining agree-
ment. Respondent replied by letter dated April 22,
stating that it was willing to meet "to develop an
outline on which a new Contract may be developed
by mutual agreement and negotiation." On April 23,
the Union suggested in a letter that "negotiations"
1 Unless otherwise indicated, all dates hereinafter are in 1974
225 NLRB No. 151
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
begin on April 26. Respondent, however, objected to
the Union's use "of the verb `negotiate' " in an April
25 letter, and emphasized it was agreeable to meet
only to discuss an "outline" to form the basis of later
"negotiation."
In any event, representatives of Respondent and
the Union met in 11 tape-recorded collective-bar-
gaining sessions between May 1 and June 14. During
these meetings, Respondent's representative, Vice
President Dibble, took the position that he was "not
negotiating," and repeatedly insisted that the pur-
pose of these meetings was only to set up an "out-
line" or "agenda" of subjects for later negotiation.
Thus, although the Union expressed its willingness to
negotiate changes in the existing contract, and in-
deed placed on the table a new contract proposal of
its own, Respondent refused to submit a formal con-
tract proposal or counterproposal of any kind for dis-
cussion.
Instead, Respondent offered a list of "suggestions
for an outline of items that would be suitable for
inclusion in the framework for negotiations" on May
21. Later, on June 3, Respondent presented a docu-
ment classifying the various clauses of the Union's
contract proposal into categories with the following
headings: "A. Agreeable for Inclusion on Agenda
but Requires Discussion and Modifications Before
Acceptable; B. Agreeable to Consider for Discussion
as Related Subjects After Basic Contract Agenda
Has Been Completed; C. Items of Fringe Benefits To
Be Negotiated After Basic Contract Agreement; D.
Working Rules To Be Negotiated; E. Not Agreeable
To Include on Agenda; F. Requires Job Description
and Job Evaluation." Among the items listed under
category E, "Not Agreeable To Include on Agenda,"
were certain safety and work rules desired by the
Union, including some which were present in the ex-
piring labor agreement.
Meetings between Respondent and the Union
were held on May 1, 6, 13, 14, 21, and 23; and June
3, 6, 10, 12, and 14. Little significant discussion of
any sort occurred before May 23, on which date Dib-
ble made clear to James Ozzello, the union business
agent, that Respondent would not accept mandatory
grievance arbitration: "There is not going to be man-
datory arbitration, for a fact." The negotiators dis-
cussed some of the less controversial subjects in cate-
gories A and B of Respondent's so-called "agenda"
on June 3 and 6. However, on June 6, Dibble indi-
cated that he would not be willing to proceed to dis-
cuss other subjects until the grievance arbitration is-
sue had been settled:
OzzELLO: What you are saying is that you
don't think we can agree to any of these other
items until an agreement is made here, is that it?
DIBBLE: Not in the way we have approached
the Grievance Procedure and you get into the
Arbitration Procedure which is a hang-up. . . .
OzzELLO: Yeah, but that's not what I asked,
George. I said, you don't feel we can go on and
agree to any other items on these other pages
DIBBLE: . . . frankly, no . . . .
OZZELLO: . . . until we reach an agreement
on the Arbitration.
DIBBLE: Frankly, no.
OZZELLO: Work Rules, Fringe Benefits, etc.
DIBBLE: Yeah.
Respondent restated this position in meetings on
June 10 and June 12.
Meanwhile, the Union had filed a refusal-to-bar-
gain charge against Respondent on June 11. After
receiving notification that the 8(a)(5) charge had
been filed, Dibble informed Ozzello on June 14 that
Respondent would not hold any further meetings
with the Union until the issue raised by the charge
had been resolved.2 Ozzello, in turn, told the 15
members of the bargaining unit that Respondent had
refused to negotiate during the pendency of the
8(a)(5) charge, and they decided to strike beginning
June 17, after the expiration of the existing contract.
Subsequently, on July 15, 1974, the Regional Di-
rector for Region 27 issued a complaint based upon
the union charge, alleging that Respondent had re-
fused to bargain about "wages, hours, and other
terms and conditions of employment while an unfair
labor practice charge is pending against the Respon-
dent."
August 1974-March 1975
On August 20, hearing began on the complaint.
The Administrative Law Judge, in view of the par-
ties' long and generally satisfactory bargaining rela-
tionship, encouraged Respondent and the Union to
make a fresh attempt to negotiate an agreement. The
parties consented, and further hearing was post-
poned. When the hearing was resumed on October
17, the Regional Director and Respondent entered
into a settlement agreement, which obligated Re-
spondent to bargain in good faith with the Union.'
Meanwhile, the parties had agreed to exchange
contract proposals during a meeting on August 20.
The Union resubmitted a proposal it had made on
May 14, which, inter aha, contained a number of
2 Respondent's insistence at the hearing that negotiations broke down as
a result of a union demand for mandatory interest arbitration is not sup-
ported by the tape transcripts of the bargaining sessions
3 The Union objected to the resolution of its charge in this manner
SAN ISABEL ELECTRIC SERVICES, INC. 1075
safety and work rule provisions, including the follow-
ing:
ARTICLE 13
Section 1. The parties hereto agree to establish a
joint safety committee, composed of equal rep-
resentation from the Company, employees and
the Union. Each representative to be selected by
the group they represent.
Section 2. The Union agrees on behalf of its
members that the provisions of the Safety Man-
ual of the Company, as approved by the Joint
Safety Committee, will be observed.
Section 3. When any employees are involved in
accidents either the Company or the Union or
both may conduct investigations. Both parties
shall have the privilege of having representa-
tives, of their own selection, take part in these
investigations. If any difference of opinion
should arise between the Union and Company
representatives as to the cause of the accident or
the guilt or innocence of the parties concerned
that cannot be satisfactorily settled between
these representatives, the matter may be referred
by either party to a board of arbitration for set-
tlement as called for in the arbitration provi-
sions of this agreement.
ARTICLE 14
Section 5. A Journeyman Lineman shall not
work on live high potential wires or equipment
carrying more than 500 volts unless assisted by
another journeyman or a third year apprentice,
except in those cases of emergency where lives
may be in danger.
Section 8. All work done on current carrying
conductors of 6900 volts or more shall be done
with hotsticks.
Section 10. Two men shall be sent on all trouble
calls in rural areas. In urban areas, one man
may be sent to determine the nature of the call,
but shall not work alone on voltages above 500
volts.
All these provisions, except article 14, section 5, were
among those listed by Respondent as not to be in-
cluded on any agenda for negotiations in the docu-
ment it presented to the Union on June 3.4
Respondent's initial contract proposals contained
a broad management rights clause, giving it unilater-
al authority to set safety rules, and a separate provi-
4 It should be noted that the expired contract provided for a safety com-
mittee like that described in art 13, secs I and 2 It also contained provi-
sions similar to secs 5 and 8 of art 14 , as well as a number of other safety
and work rules
sion allowing it to do the same in regard to work
rules. The work rules provision also stated, however,
that, "Rules before being put into effect shall be sub-
mitted to the Union for their information. Should a
rule be discriminatorily stated or applied, it may be
challenged by application of the Grievance and Arbi-
tration Procedure." The arbitration procedure of
Respondent's proposed contract stated that, to be ar-
bitrable, a grievance "must not involve the exercise
of any of the exclusive rights of the Employer as set
forth in this Agreement." It also provided that the
arbitrator shall not "substitute his discretion for that
of the Company or the Union." In discharge or disci-
plinary cases, the contract stated that the arbitrator
"cannot substitute his judgment for the Company's
and can reverse the Company only if he finds that
the discharge or disciplinary action is not supported
by evidence, or the Company's action is arbitrary or
discriminatory."
A subsequent proposal by Respondent, dated Sep-
tember 19, contained the following clause:
ARTICLE 33
Joint Safety Committee. A Safety Committee
shall be formed from the Bargaining Unit em-
ployees, Non-Bargaining Unit employees, and
management representatives and shall schedule
regular periodic meetings to be held throughout
the system served by San Isabel and shall have
the prerogative to make recommendations to the
Company on all safety matters.
The other relevant parts of Respondent's contract
proposal regarding safety and work rules and the
grievance and arbitration procedure remained the
same.
The Union responded on September 24 with a
contract proposal containing this provision relating
to a safety committee:
ARTICLE 36
Joint Safety Committee- A Safety Committee
shall be formed from the Bargaining Unit em-
ployees, Non-Bargaining Unit employees, and
management representatives, each group to have
equal representation and each representative to
be selected by the group they represent. The
Safety Committee will schedule regular periodic
meetings to be held throughout the system
served by San Isabel and shall be able to make
effective recommendations to the Company on
all safety matters.
The Union's proposal also contained several specific
"work rules" (the distinction between work and safe-
ty rules is often unclear), including its earlier de-
mands, referred to above, that "hotsticks" be used by
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees working on current carrying conductors
of 6900 volts or more, and that two men be used to
work on equipment carrying more than 500 volts, ex-
cept in certain circumstances.
The final agreement, which the Union ultimately
accepted on February 26, 1976, but refused to sign
because Respondent asserted that all but one of the
strikers' positions had been filled by permanent re-
placements, contained the same language concerning
a safety committee as that used in the Union's Sep-
tember 24 proposal. However, among the manage-
ment rights retained by Respondent under the final
contract is the right to establish "objective standards
for safety, health and property protection measure-
ments by the Company." The provisions relating to
work rules and the grievance and arbitration proce-
dure remained the same as that in Respondent's orig-
inal contract proposal.
Altogether Respondent and the Union held 10
bargaining meetings between August 20 and January
24, on, besides those two dates, September 3, 18, and
30; October 18 and 29; November 15 and 21; and
December 13. However, because only the meetings
of October 29 and November 15 were tape-recorded,
the testimony conflicts somewhat about the parties'
positions on safety and work rules during the bar-
gaining sessions.
James Ozzello, the union business agent, testified
that Respondent's position on safety and work rules
during the meetings on September 3, 18, and 30 was
that any safety committee would have the power to
recommend only, and that Respondent would estab-
lish safety and work rules, subject only to submission
to the grievance and arbitration procedure explained
above. Mr. Glenn Bergmann, Respondent's chief
negotiator during this second series of meetings with
the Union, testified, in essence, that the substance of
various work and safety rules were discussed, al-
though Respondent refused to include specific work
and safety rules in a contract. On cross-examination
at the hearing, Mr. Bergmann testified as follows:
Q. Is it not true that throughout the negotia-
tions it was the Company's position that they
would establish the work rules?
A. Yes, that is correct.
Q. And in regard to the safety committee it
was the Company's position that they would es-
tablish the safety rules considering recommen-
dations by possible safety committee, recom-
mendations that may be made by employees, or
any other recommendations that may or may
not be made?
A. That is correct.
Of particular importance, therefore, in determin-
ing whether any meaningful negotiation took place
over safety and work rules during the post-August 20
period are the tape transcripts of the October 29 and
November 15 bargaining sessions. Concerning safety
rules, Bergmann told the union representatives point-
blank on November 15,
Gentlemen, I've got to repeat something I've
said many times, and that is this: Safety is not
negotiable. Now there may well be varying opin-
ions as to what is safety and what is not safety,
but I think your language implies to me that you
can negotiate what is safe and what isn't and,
gentlemen, that just isn't possible, because either
a practice is safe when done in the appropriate
sequence, or it is not safe. Negotiating does not
make it safe, nor does it make it unsafe ... .
Earlier, on October 29, Bergmann had emphasized
that the safety committee was to have the authority
to recommend only, and that establishment of safety
rules was within management rights, subject to the
grievance and arbitration procedure. But, as Berg-
mann stated at the same meeting,
[K]eep in mind what is-what are the bases for
grievance. Number one is discriminatory appli-
cation, above all, okay. Now you're not going to
grieve our judgment calls, that I'll assure you,
because that is a management function, right
As to work rules, Vice President Dibble told the
Union during the October 29 meeting that,
We have made a proposal to you and before we
promulgate a work rule, we will submit it to you.
You have a period for consideration and you
have the ability to grieve under the grievance
procedure, and we will not put it into effect until
the grievance is settled. Any protection you
need, or feel that you need, certainly is well cov-
ered in that area . . . .
Furthermore, the following dialogue took place in
the same meeting between Ozzello and Bergmann:
OZZELLO: I have one more question. On our
proposal at (sic) work rules, would you be agree-
able to go through that proposal paragraph by
paragraph, and if we reach an agreement, place
it in the agreement?
BERGMANN: No, our proposal to you, Jim, is
the work rules would not be placed within the
agreement. And our proposal still stands.
As noted previously, the Union ultimately accept-
ed a contract giving Respondent the right to set work
and safety rules, subject only to challenge as to dis-
criminatory statement or application of a rule
SAN ISABEL ELECTRIC SERVICES, INC.
through the grievance and arbitration procedure.'
Also, anoint safety committee, composed of manage-
ment, bargaining unit employees, and nonbargaining
unit employee representatives, was to have the power
of "effective recommendation" on safety matters.
The Union notified Respondent of its willingness
to execute such a contract by letter on February 26,
1975. In a companion letter of the same date, the
Union made an unconditional offer to return to work
on behalf of the 15 striking members of the bargain-
ing unit. Respondent, however, in a letter dated
March 3, 1975, informed the Union that all the strik-
ers' jobs, except one, had either been abolished or
filled by permanent replacements. In addition, Re-
spondent had discharged two employees, Walter
Smith and James McQueen, on December 16 for al-
leged picket line misconduct occurring on December
11.
In view of Respondent's refusal to return the strik-
ers to their jobs, the Union filed a charge on March
4, 1975, alleging that Respondent had violated Sec-
tion 8(a)(3) of the Act by that action. The Union had
previously filed a charge on December 26, alleging
that the discharges of Smith and McQueen violated
Section 8(a)(3), and the Regional Director for Region
27 had issued a complaint on that charge on Febru-
ary 28, 1975. Ultimately, the Regional Director set
aside the settlement agreement which had disposed
of the original refusal-to-bargain complaint, reinstat-
ed that complaint, and consolidated it with the Smith
and McQueen complaint, and another complaint al-
leging that Respondent had unlawfully refused to re-
turn the strikers to work. This occurred on Septem-
ber 8, 1975.
Therefore, the main issues presented to the Ad-
ministrative Law Judge for decision were (1) whether
Respondent had engaged in a continuing refusal to
bargain commencing June 14, 1974; (2) whether Re-
spondent discharged employees Smith and McQueen
in violation of Section 8(a)(3) on December 16, and
(3) whether Respondent unlawfully refused to return
the strikers to work after February 26, 1975, also in
violation of Section 8(a)(3).
The Administrative Law Judge's Decision
The Administrative Law Judge found that Re-
spondent had, indeed, refused to bargain collectively
with the Union on and after June 14, and that, in
striking to protest this refusal to bargain on and after
5 Respondent's representative , Bergmann , testified at the hearing , howev-
er, that the Union had made clear at the November 21 meeting that "it
would be impossible for them to accept any contract that did not return all
of the people to their jobs and basically that being a condition of
accepting our proposal "
1077
June 17, all the original members of the bargaining
unit were unfair labor practice strikers after that
date . In reaching this conclusion , the Administrative
Law Judge relied primarily upon the document pre-
sented by the Respondent to the Union on June 3,
which listed certain safety and work rules desired by
the Union as not includable on an agenda of subjects
for negotiations , and upon statements by Mr. Berg-
mann that Respondent 's position all along was that it
would establish safety and work rules for its employ-
ees unilaterally.
In addition , the Administrative Law Judge found
that Respondent had violated Section 8 (a)(3) of the
Act by discharging strikers Smith and McQueen for
insufficient cause on December 16. The Administra-
tive Law Judge found violations of Section 8(a)(3) in
the refusal of the Respondent to return to work the
13 other striking members of the bargaining unit, on
the ground that Respondent 's continual refusal to
bargain preserved to the present their initial status as
unfair labor practice strikers . However , the Adminis-
trative Law Judge concluded that some jobs in the
bargaining unit had been eliminated , and thus or-
dered that Respondent place on a preferential hiring
list those individuals it could not immediately rehire.
Respondent's Contentions
Respondent contends that the Administrative Law
Judge erroneously cited Respondent's June 3 docu-
ment, which apparently excepted certain safety and
work rules from negotiation, as evidence that it re-
fused to bargain about those subjects after August
20. Respondent argues that a new negotiator, Glenn
Bergmann , took over bargaining responsibilities on
that date, and never relied on the June 3 document to
avoid discussion of safety and work rules. Respon-
dent also asserts that the Administrative Law Judge
improperly found that Bergmann "flatly testified that
it was then the position of Respondent that it would
establish safety and work rules without negotiating
with the Union."
Respondent takes the position that the settlement
agreement of October 17 cured any defect in its bar-
gaining posture prior to that time, that it bargained
in good faith at least from that time, and that it com-
mitted no other unfair labor practices which would
justify setting aside the settlement agreement. Re-
spondent argues that it fully discussed safety and
work rules with the Union, that it modified its posi-
tion on a joint safety committee, and that the Union
ultimately accepted the contract.
Respondent also challenges the finding that it dis-
criminatorily discharged employees Smith and Mc-
Queen in violation of Section 8(a)(3). And Respon-
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dent argues that it did not act unlawfully in refusing
to reinstate the striking bargaining unit members af-
ter February 26, because they became economic
strikers after the execution of the settlement agree-
ment, whether or not they were before.
Conclusions
The record evidence recited above clearly shows
that Respondent insisted at all times on retaining as
a management function the right to establish safety
and work rules, although apparently agreeing to in-
form the Union in advance of rules it intended to
impose, to consider recommendations from the
Union and a safety committee, and to permit chal-
lenges as to discriminatory statement or application
of work rules and as to unjustified discharges result-
ing from application of any safety or work rule,
through the grievance and arbitration procedure. It is
also clear that, prior to August 20, Respondent had
refused to meet with the Union at all, commencing
on June 14, because the Union had filed an 8(a)(5)
charge against it.
The starting point in any analysis of Respondent's
bargaining position must be N.L.R.B. v. American
National Insurance Co., 343 U.S. 395 (1952). In that
case, the Supreme Court decided that an employer
may bargain for the inclusion of mandatory subjects
of bargaining within a management functions clause
without committing a per se violation of Section
8(a)(5) of the Act.' However, the Court said, the
"good faith bargaining standards" of Section 8(d) of
the Act must be applied on the facts of each case to
determine whether an employer has violated Section
8(a)(5) in demanding a particular management rights
clause. Therefore, our task is to decide whether Re-
spondent acted in good faith by insisting during ne-
gotiation upon clauses giving it the unilateral author-
ity to make work and safety rules for its employees.
Respondent correctly contends that its presettle-
ment agreement conduct cannot be used to establish
a refusal to bargain after the execution of the agree-
ment. However, as Respondent also points out, evi-
dence concerning its earlier negotiating stance may
be used as background to cast light on its motives in
negotiations following Respondent's entering into
the settlement agreement. Adams Millis Texturing
Plant, formerly known as Tex-Elastic Corporation, 209
NLRB 899 (1974); D. W. Hearn d/b/a D. W. Hearn
Machine Works, 185 NLRB 736 (1970).
In this connection, therefore, we cannot ignore
Respondent's clear-cut refusal to bargain after June
6 Both safety rules , N L R B v Gulf Power Company, 384 F 2d 822 (C A
5, 1967 ), and work or plant rules , Miller Brewing Company, 166 NLRB 831
(1967), enfd 408 F 2d 12 (C A 9, 1969), are mandatory bargaining subjects
14 on the ground that the Union had filed an 8(a)(5)
charge against it. As the Administrative Law Judge
properly found, a refusal to bargain because of the
pendency of an 8(a)(5) charge is itself a violation of
that Section of the statute. O'Land, Inc., d/b/a Ra-
mada Inn South, 206 NLRB 210 (1973). Furthermore,
in meetings with the Union before June 14, it is note-
worthy that Respondent apparently excluded from
consideration certain safety and work rules desired
by the Union (the items Respondent listed as "not
agreeable to include on agenda" for negotiation in
the document it presented to the Union on June 3);
that it declined to make any formal contract proposal
to the Union; and that it refused to proceed to the
discussion of other topics until the issue of mandato-
ry grievance arbitration had been settled. All these
factors, in our opinion, reflect a state of mind incon-
sistent with a willingness to reach genuine agreement
with the Union, and indicate bad faith on
Respondent's part during this series of meetings. In-
deed, the exclusion of work and safety rules even
from an agenda for negotiation constitutes a per se
violation of Section 8(a)(5). And there can be no
doubt that the decision of the members of the bar-
gaining unit to strike on June 17-after Respondent
refused to meet further with the Union-rendered
them unfair labor practice strikers from that date for-
ward.
We must still decide, however, whether Respon-
dent began to bargain in good faith with the Union
after August 20, when it agreed to resume negotia-
tions with the Union, or, at least, after October 17,
the date Respondent entered into the settlement
agreement. As the Board stated in Adams Millis, su-
pra at 900, "The threshold question . . . is whether
there is `evidence of substantial unlawful conduct
following the settlement agreement."'
What the various contract proposals and counter-
proposals during the post-August 20 period, the tape
transcripts of the October 29 and November 15 bar-
gaining sessions, and, in large part, the testimony at
the hearing of negotiators for both sides, indisput-
ably disclose is that Respondent at all times refused
to discuss the substance of any safety or work rule
requested by the Union, even though many had been
contained in the expired collective-bargaining con-
tract. Respondent steadfastly insisted on the authori-
ty to establish work and safety rules.
We do not find significant Respondent's agree-
ment to the creation of a three-party safety commit-
tee with the power of "effective recommendation."
The tape transcripts of the October 29 and Novem-
ber 15 meetings, held after the safety committee pro-
vision had been agreed upon, show that Respondent
still insisted upon the unfettered right to make safety
SAN ISABEL ELECTRIC SERVICES, INC.
rules, and apparently did not consider this provision
as impairing that right. Furthermore, the manage-
ment functions clause of the final contract secures
this right to establish safety rules for Respondent.
Also, Bergmann, Respondent's main negotiator, ad-
mitted at the hearing that Respondent's position
throughout was that it must retain complete freedom
to set safety standards.
Nor are we impressed by the fact that the Union
ultimately accepted a contract proposal by Respon-
dent, although it refused to sign it because Respon-
dent declined to return to work all the members of
the bargaining unit. As Bergmann conceded at the
hearing, the Union had made it clear during the No-
vember 21 bargaining session that it could not exe-
cute a contract which did not return all the striking
members of the bargaining unit to work. This fact,
coupled with the Union's refusal to sign the contract
whose terms it had approved when Respondent did
not return the strikers to work, strongly indicates that
the Union's predominate concern in agreeing to
Respondent's demands on safety and work rules was
the preservation of its members' jobs. In no way,
however, is union acceptance of the terms of the con-
tract probative of Respondent's good or bad faith
during the negotiating process.
We believe the proper result is reached in this case
by contrasting two decisions of the Board involving
employer insistence upon a management rights
clause, in which we reached different conclusions as
to whether Section 8(a)(5) had been violated. In Flor-
ida Machine & Foundry Company, and Fleco Corpora-
tion, 174 NLRB 1156 (1969), remanded 441 F.2d
1005 (C.A.D.C., 1970), supplemental decision 190
NLRB 563 (1971), enfd. 78 LRRM 2895, 66 LC ¶ 12,
214 (C.A.D.C., 1971), the employer insisted through-
out the negotiations on a sweeping management
rights clause reserving to itself broad authority to
control the employees' working conditions-a clause
not dissimilar in nature to the management rights
and work rules provisions demanded by Respondent,
as well as a no-strike clause. Furthermore, conditions
of employment covered by the management func-
tions provisions were not to be subject to the griev-
ance and arbitration procedure. The Board observed
that the employer maintained this position, although
such a clause "drastically curtailed" the Union's rep-
resentation rights, which, even without a contract,
would have required the employer to consult with the
Union before effecting changes in wages, hours, and
other conditions of employment.' On these facts,
7 We have consistently found bad-faith bargaining in cases in which an
employer has insisted on a broad management rights clause and a no-strike
clause during negotiations , while , at the same time , refusing to agree to an
effective grievance and arbitration procedure See, generally, Kayser-Roth
1079
along with some other indicia of bad faith, the Board
concluded that the employer had violated Section
8(a)(5).
No such violation was found in employer insis-
tence upon the inclusion in a contract of a broad
management rights clause in Long Lake Lumber
Company, 182 NLRB 435 (1970), affirmed 458 F.2d
852 (C.A.D.C., 1972), however. The Board carefully
noted that the employer had decided to bargain for
such a clause where it had had none previously for
three reasons: (1) The union had requested that the
employer discharge its production manager a few
years earlier, (2) the union had filed an 8(a)(5) charge
when the employer changed the workweek of an em-
ployee from Monday through Friday to Tuesday
through Saturday, acting under the impression that
this was permissible since the contract was silent on
the subject, and (3) certain decisions of the Board
and the courts convinced the employer it needed to
specifically reserve rights which it wanted to exercise
unilaterally. Thus, the employer had plausible rea-
sons for desiring such a clause.
Most significant, however, the Board stressed that
the employer agreed to negotiate a "comprehensive
code governing the employees' wages, hours, and
conditions of employment." In this connection, the
Board noted that the employer did not foreclose bar-
gaining about any particular subject and that it had
"expressed its willingness to bargain with the Union
about the elimination of any of the specific rights
enumerated in its proposals." Also, the employer
wanted to reserve to itself only matters not specifical-
ly covered in the contract. And any action taken by
the employer pursuant to the management rights
clause could be challenged through the grievance
procedure, after which the union would have the
right to take economic action in support of its posi-
tions, if necessary. In these circumstances, therefore,
the Board refused to infer bad faith on the part of the
employer in bargaining for a management rights
clause.
In denying the Union's petition for review in Long
Lake Lumber, the court of appeals specifically ap-
proved the Board's analysis of the case, and, in lan-
guage particularly pertinent to the instant case, stat-
ed, 458 F.2d at 859:
It may well be that some one or more of the
specific rights included in the employer's un-
questionably broad proposal would, if they be-
came the sticking point at which negotiations
broke down, expose the employer to the charge
Hosiery Company, Inc, 176 NLRB 999 (1969), ITT Henze Valve Service,
Controls and Instruments Division, ITT, 166 NLRB 592 (1967), East Texas
Steel Castings Company, Inc, 154 NLRB 1080 (1965), "M" System, Inc,
Mobile Home Division Mid-States Corporation, 129 NLRB 527 (1960)
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of having been motivated by a bad faith purpose
to reach no agreement at all. But whether such a
purpose exists, however, is to be divined from
the facts of each case-and the nature of a
party's opening proposals is only one of such
facts. Others include the climate and course of
bargaining negotiations as a whole. The employ-
er here, at the beginning of the bargaining and
repeatedly thereafter, invited the union to desig-
nate those items in its management proposals to
which it excepted, and emphasized that it was
prepared to consider the elimination of any of
the enumerated rights, as well as the inclusion of
any express reservations of union rights deemed
important by the union.
Applying the foregoing principles to the facts of
the instant case, Respondent's bad-faith bargaining
is manifest both after the August 20 resumption of
negotiations and after the October 17 settlement
agreement . Unlike the employer in Long Lake, Re-
spondent consistently refused to discuss with the
Union specific safety and work rules, except to insist
that it would settle for nothing less than the absolute
right to promulgate such rules unilaterally. Respon-
dent offered only to inform the Union in advance of
the safety and work rules it intended to establish, and
to listen to recommendations of the Union and the
so-called joint safety committee. This is most strik-
ingly shown by Business Agent's Ozzello's request,
during the October 29 bargaining meeting, that each
work rule which the Union desired be discussed indi-
vidually to see if agreement could be reached on any
particular rule, and Respondent's reply that it would
not be willing to consider such rules.
Additionally, Respondent's decision as to appro-
priate safety and work rules would clearly be final,
not simply an initial determination as in Long Lake,
because the only ground for grieving work rules un-
der the proposed contract is discriminatory state-
ment or application, and discharges under work or
safety rules may be subject to arbitration only if "ar-
bitrary or discriminatory" or "not supported by evi-
dence." As noted earlier, the contract also provides
that the arbitrator shall not "substitute his discretion
for that of the Company or the Union, nor shall he
exercise any responsibility of the Company or the
Union." A no-strike clause was also included in the
contract, depriving the Union of the option of taking
economic action to protest work or safety rules im-
posed by Respondent. Thus, taken as a whole, the
proposed contract would strip the Union of any ef-
fective method of representing its members on the
issues of safety and work rules.
In short, Respondent has raised a smokescreen in ,
the form of insistence upon a management rights faith was fully litigated at the hearing
clause covering safety and work rules, to conceal an
effort to exclude the Union from any participation in
decisions affecting important conditions of employ-
ment, as in Florida Machine and Foundry Co., supra,
thus exposing its bad faith during these negotiations.
It follows from this finding that Respondent's refusal
to return to work those strikers whose jobs had not
been abolished after the unconditional offer to return
to work on February 26, 1975, violated Section
8(a)(3), as these individuals continued to be unfair
labor practice strikers at all times after June 17. Ad-
ditionally, for the reasons stated in the Administra-
tive Law Judge's Decision, we find that Respondent
discharged strikers Smith and McQueen on Decem-
ber 16 in violation of Section 8(a)(3).
In the consolidated complaint, the General Coun-
sel alleges a continuing refusal to bargain on and
after June 14 by Respondent. Our finding that this
violation has in fact continued since then is sufficient
ground to set aside the settlement agreement.' There-
fore, we need not consider whether Respondent vio-
lated the terms of the settlement agreement by its
discharges of Smith and McQueen, or by refusing to
return to work the other strikers after February 26.
For the same reason, we find it unnecessary to con-
sider whether the discharges of Smith and McQueen
prolonged the strike in any way.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondent,
San Isabel Electric Services, Inc., Pueblo, Colorado,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Refusing to bargain in good faith with Local
Union No. 667 of the International Brotherhood of
Electrical Workers, AFL-CIO, as the certified collec-
tive-bargaining representative of the employees in
the following described unit:
All line and service foremen, journeymen line-
men, groundmen, stockroom clerks-building
maintenance, meter testers, meter readers, truck-
drivers, collectors, appliance servicemen, cash-
ier-stenographer, cashier-clerk, and apprentices
employed by San Isabel Electric Services, Inc.;
but excluding office clerical employees and all
guards, professional employees, and supervisors
as defined in the Act.
(b) Discouraging membership in the aforesaid
Union, or any other labor organization, by discharg-
s In any event Respondent ' s post-August 20 refusal to bargain in good
SAN ISABEL ELECTRIC SERVICES, INC. 1081
ing, refusing to return to work, or otherwise discrimi-
nating against, employees in any manner with regard
to their hire and tenure of employment or any term
or condition of employment.
(c) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Bargain in good faith with the aforesaid
Union, upon its request, as the exclusive representa-
tive of the employees in the above-described appro-
priate bargaining unit, and embody in a signed
agreement any understanding reached.
(b) Offer Walter Smith and James McQueen im-
mediate and full reinstatement to their former posi-
tions or, if those jobs no longer exist, to substantially
equivalent positions, without prejudice to their se-
niority or other rights and privileges, and make each
of them whole for any loss of earnings (including any
expenses incurred in seeking other employment) suf-
fered by reason of their discharge by the Respon-
dent, in the manner established by the Board in
F. W. Woolworth Company, 90 NLRB 289 (1950), to-
gether with interest thereon at the rate of 6 percent
per annum (Isis Plumbing & Heating Co., 138 NLRB
716 (1961) ).
(c) Offer Simon Aguirre, Frank Aranda, Vernon
Blanton, William Macovich, Guy Molinaro, Thomas
Monarcho, Douglas Rigirozzi, Jose Sais, John Zane,
Wanda Pachorek, Rita Thompson, Dana Dunagan,
and Harold Jones immediate and full reinstatement
to their former positions or, if those positions no lon-
ger exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights and
privileges. If employment is not available, place them
on a preferential hiring list and thereafter offer them
reemployment as such employment becomes avail-
able and before other employees are hired for such
work and without loss of seniority or other rights and
privileges. Make them whole for any loss of pay they
may have suffered by payment to them of a sum
equal to that which they would normally have
earned, beginning 5 days after their unconditional
application for reinstatement on February 26, 1975,
and continuing until the discriminatees are either of-
fered employment or placed on a preferential hiring
list by Respondent, or obtain substantially equiva-
lent employment elsewhere, whichever occurs first.
Said backpay is to be computed, with interest there-
on, as set forth in paragraph 2(b) above.
(d) Preserve and, upon 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.
(e) Post at its place of business at Pueblo, Colora-
do, and any other places of business, copies of the
attached notice marked "Appendix."9 Copies of said
notice, on forms provided by the Regional Director
for Region 27, after being duly signed by Respon-
dent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered
by any other material.
(f) Notify the Regional Director for Region 27, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
9In 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 "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain in good faith
with Local Union No. 667 of the International
Brotherhood of Electrical Workers, AFL-CIO,
as the certified collective-bargaining representa-
tive of the employees in the following described
unit:
All line and service foremen, journeymen line-
men, groundmen, stockroom clerks-building
maintenance, meter testers, meter readers,
truckdrivers, collectors, appliance servicemen,
cashier-stenographer, cashier-clerk, and ap-
prentices employed by San Isabel Electric
Services, Inc.; but excluding office clerical
employees and all guards, professional em-
ployees, and supervisors as defined in the Act.
WE WILL NOT discourage membership in the
aforesaid Union, or any other labor organiza-
tion, by discharging, refusing to return to work,
or otherwise discriminating against, employees
in any manner with regard to their hire and ten-
ure of employment or any term or condition of
employment.
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed them under Section 7
of the National Labor Relations Act.
WE WILL bargain in good faith with the afore-
said Union, upon its request, as the exclusive
representative of the employees in the above-de-
scribed appropriate unit, and embody in a
signed agreement any understanding reached.
WE WILL offer Walter Smith and James Mc-
Queen immediate and full reinstatement to their
former positions or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges, and make each of them whole for any
loss of earnings (including any expenses incur-
red in seeking other employment) suffered by
reason of their discharge by us, with interest at
the rate of 6 percent per annum.
WE WILL offer Simon Aguirre, Frank Aranda,
Vernon Blanton, William Macovich, Guy Moli-
naro, Thomas Monarcho, Douglas Rigirozzi,
Jose Sais, John Zane, Wanda Pachorek, Rita
Thompson, Dana Dunagan, and Harold Jones
immediate and full reinstatement to their former
positions with us or, if those jobs no longer exist,
to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges. If employment is not available, WE
WILL place them on a preferential hiring list and
thereafter offer them reemployment as such em-
ployment becomes available and before other
employees are hired for such work and without
loss of seniority or other rights and privileges.
WE WILL pay them backpay, with interest at 6
percent, starting 5 days after their unconditional
applications for reinstatement and continuing
until they are offered employment or placed on
a preferential hiring list, or obtain substantially
equivalent employment elsewhere, whichever
occurs first.
SAN ISABEL ELECTRIC SERVICES, INC.
DECISION
STATEMENT OF THE CASE
MARTIN S. BENNETT, Administrative Law Judge: This
matter was heard at Pueblo, Colorado, on November 11,
12, and 13, 1975.1 The instant consolidated complaint, is-
1 Two prior hearings before another Administrative Law Judge, on Au-
gust 20 and October 17, 1974, led to settlement discussions and these were
abortive More specifically , the earliest case was ostensibly settled on Octo-
ber 17 , 1974, but this was set aside by the Regional Director on September
8, 1975 On the later date, October 17, 1974, testimony was taken briefly by
sued September 8, 1975, and based upon various charges
filed June 12 and December 26, 1974, and February 18 and
March 4, 1975, by Local Union 667 of the International
Brotherhood of Electrical Workers, AFL-CIO, herein the
Union, alleges that Respondent , San Isabel Electric Serv-
ices, Inc., has engaged in unfair labor practices within the
meaning of Section 8(a)(5), (3 ), and (1) of the Act. Briefs
have been received from the parties.
Upon the entire record in the case, and from my obser-
vation of the witnesses , I make the following:
FINDINGS OF FACT
1. JURISDICTIONAL FINDINGS
Respondent is a Colorado corporation maintaining its
principal office and place of business at Pueblo, Colorado,
where , as an electrical public utility, it is engaged in the
manufacture and sale of electricity. It annually enjoys a
gross volume of business in excess of $250 ,000 and pur-
chases and receives goods and materials valued in excess of
$50,000 directly from points outside the State of Colorado.
I find that the operations of Respondent affect commerce
within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union No. 667 of the International Brotherhood
of Electrical Workers, AFL-CIO , is a labor organization
within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction, The Issues
The initial complaint in this matter, Case 27-CA-4156,
as noted , was settled by the General Counsel and Respon-
dent on October 17, 1974 , and this settlement was set aside
by the Regional Director on September 8, 1975. The pre-
sent consolidated complaint alleges that Respondent re-
fused to bargain in good faith with the Union; discharged
Walter Smith and James McQueen because of union and
protected concerted activities ; thereafter refused to rein-
state 15 named unfair labor practice strikers, including
Smith and McQueen, who struck on June 17 in protest of
Respondent's refusal to bargain with the Union on and
after June 14, 1974; that said strike was prolonged by
Respondent 's unfair labor practices involving Smith and
McQueen ; and attacks Respondent 's failure and refusal to
reinstate the 15 strikers , these being Smith , McQueen, and
Simon Agirre, Frank Aranda , Vernon Blanton, William
Macovich, Guy Molinaro, Thomas Monarco, Douglas Ri-
girozzi, Jose Sais, John Zane, Wanda Pachorek, Rita
Thompson , Dana Dunagan , and Harold Jones.
The Union was originally certified in 1953 as the bar-
gaining representative of a unit of all line and service fore-
men, journeymen linemen , groundmen, truck drivers,
storeroom clerks-building maintenance , meter testers,
him from two witnesses and the transcripts for both dates were received in
evidence , without objection I therefore deem this testimony to be properly
before me
SAN ISABEL ELECTRIC SERVICES, INC. 1083
meter readers, collectors, appliartce servicemen, cashier-
stenographers, cashier-clerks and apprentices, but exclud-
ing office clerical employees, guards, professional employ-
ees and supervisors. There is no serious dispute, and I find,
that this was a unit appropriate for the purpose of collec-
tive bargaining within the meaning of Section 9(b) of the
Act. I also find, on this record, that at all times material
herein, the Union has been and now is the representative of
said employees within the meaning of Section 9(a) of the
Act.
On June 15, 1974, the most recent contract between the
parties duly expired, pursuant to timely notice by Respon-
dent, and the employees in the unit struck on June 17,
1974. While the Charging Party did accept Respondent's
final contract offer on February 26, 1975, following a num-
ber of bargaining meetings, it declined to execute same
because of the prior discharges of Smith and McQueen,
referred to above and treated below. And Respondent re-
jected the unconditional offer of the alleged unfair labor
practice strikers on February 26, 1975, to return to work.
B. The Settlement of Case 27-CA-4156
As stated, the Regional Director set aside the settlement
in that case. Respondent moved to reverse this on grounds
of estoppel and this is hereby denied. While settlement
agreements are obviously desirable, and the Board respects
same , it is manifest that they are predicated upon a final
settlement of a matter. But such is not the case here, be-
cause other violations of the Act, below found to be meri-
torious, lend support to the decision by the Regional Direc-
tor to issue a consolidated complaint in all three cases.2
Stated otherwise, if the Board withheld its jurisdiction in
the first case, in my judgment, this would compound and
prolong the controversy which the settlement agreement
was intended to resolve. See Princeton Sportswear Corpora-
tion of Pennsylvania, 220 NLRB 1345 (1975).
C. The Refusal To Bargain on and After June 14, 1974
Respondent, in effect, contended herein that the Union
insisted to the point of an impasse on mandatory arbitra-
tion of economic issues. This claim is based upon the fact
that the previous contract contained language which pro-
vided for arbitration of the economic issues. There were
some 11 meetings between Respondent and the Union be-
tween May I and June 14, 1974.
It is noteworthy that, at the first of these meetings, the
Union stated its willingness to revise the old contract. To
this, Respondent replied that it would not negotiate until
something was developed in the nature of a program upon
which negotiations could commence. What compounded
the problem is that the spokesman for Respondent, George
Dibble, flatly stated that he was not "negotiating ." This I
fail to appreciate because the simple fact is that the parties
met some 11 times concerning a new contract and, at no
time prior to August 29, 1974, did Respondent submit a
contract proposal.
2 That is, to reissue the first complaint and the consolidation of same with
the other two
What is perhaps most significant herein is that, on June
3, 1974, Respondent submitted a summary of the Union's
contract proposal and that it therein,3 in a section cap-
tioned, "NOT AGREEABLE TO INCLUDE ON AGENDA,- listed a num-
ber of subjects which were obviously subjects for mandato-
ry bargaining.
1. The parties hereto agree to establish a joint safe-
ty committee, composed of equal representation from
the Company, employees and the Union. Each repre-
sentative to be selected by the group they represent.
2. The Union agrees on behalf of its members, that
the provisions of the Safety Manual of the Company,
as approved by the Joint Safety Committee, will be
observed.
3. When any employees are involved in accidents
either the Company or the Union or both may con-
duct investigations. Both parties shall have the privi-
lege of having representatives, of their own selection,
take part in these investigations. If any difference of
opinion should arise between the Union and Compa-
ny representatives as to the cause of the accident or
the guilt or innocence of the parties concerned that
cannot be satisfactorily settled between these repre-
sentatives, the matter may be referred by either party
to a board of arbitration for settlement as called for in
the arbitration provisions of this agreement.
4. All work done on current carrying conductors of
6900 volts or more shall be done with hotsticks.
5. Two men shall be sent on all trouble calls in rural
areas. In urban areas, one man may be sent to de-
termine the nature of the call, but shall not work alone
on voltages above 500 volts.
6. The Wage Schedule for employees covered by
this agreement is set forth in Exhibit "A" which is
attached hereto and made a part hereof and shall be
retroactive to June 15, 1974.
7. Permanent employees shall be given two (2)
weeks notice before being laid off.
Respondent took the position thereafter, on June 14,
that an impasse had been reached and refused to continue
discussions, apparently on the premise that the filing of the
charge in the first case was a strategic or negotiating tactic.
I do not, on a preponderance of the evidence, accept the
claim that an impasse was reached as of June 14. This is so
because Respondent's sole position was that it was reject-
ing the Union's contract proposal, but it had not yet made
one of its own. There were, in fact, no negotiations and
Respondent held fast on the need of an agenda, obviously
excluding the mandatory bargaining items it refused to in-
clude on an agenda. The General Counsel further points
out, and I agree, that a refusal to bargain based upon the
filing of the charge in the first case because Respondent
construed this as a negotiating tactic is violative of the Act.
See O'Land, Inc., d/b/a Ramada Inn South, 206 NLRB 210
(1973).
Respondent, as indicated, contended that its attacked
conduct was resolved by the set aside settlement agree-
ment, ostensibly on the basis of the contract agreed to on
3 Joint Exh 21
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
February 26, 1975. But Respondent went too far. It is axio-
matic that an employer is required under Section 8(d) of
the Act to negotiate concerning work rules in a plant. It
has been demonstrated herein that in negotiating for the
prior contract in 1973 Respondent refused to negotiate on
safety rules. The record discloses ° that, in a subsequent
arbitration, the arbitrator rejected the position of Respon-
dent that safety rules were not negotiable and decided
rather that they were a subject of mandatory bargaining.
And, as shown by Joint Exhibit 21 in section E, Dibble
refused to treat safety and work rules as a subject of nego-
tiations.5
Indeed, Glenn Bergmann, a representative of
Respondent's trade association, Mountain States Employ-
ers Council, entered the negotiations late in August 1974
and refused to negotiate on safety and work rules thereaf-
ter. He flatly testified that it was then the position of Re-
spondent that it would establish safety and work rules
without negotiating with the Union. He offered only to
entertain recommendations by the Union on these rules
and he did not consider this as falling within the grievance
procedure.
Bergmann also testified that this was Respondent's uni-
form position throughout all their discussions. Simply stat-
ed, Respondent has refused to negotiate over work and
safety rules included under the previous contract, after ar-
bitration, and presented for negotiation by the Union in
the instant dispute. As stated above, I agree with the deci-
sion of the Regional Director to set aside the settlement
agreement in the first case and find that Respondent has
refused to bargain within the meaning of Section 8(a)(5)
and has violated Section 8(a)(1) of the Act.
D. The Discharges of McQueen and Smith
Respondent sent letters on December 16, 1974, discharg-
ing Walter Smith and James McQueen because of an inci-
dent on December 11 when they, as strikers, spoke with a
new employee. The decision was admittedly made by Pres-
ident Gaither on the basis of advice to him that the two
named strikers had submitted threats of violence to a new
replacement; namely, Fred Stevenson. Testimony as to this
incident was presented by Stevenson, as well as by Mc-
Queen and Smith and also by Line Supervisor Kenneth
Leatherwood, employee Dennis Brgoch and then Town
Marshall Clyde Potts of LaVeta, this is a situs of Respon-
dent within its service district. Stevenson is not now in the
employ of Respondent and Potts is no longer town mar-
shall.
Leatherwood and Brgoch in essence testified that Smith
said, in a conversation in the street, that they would do
anything to see to it that Stevenson would not remain in
the employ of Respondent. Stevenson was a very vague
witness and did not "remember this whole thing at all." He
conceded that he shook hands with the person who spoke
with him and characterized the conversation as "friendly."
Joint Exh 2
He did resign from the employ of Respondent, allegedly on
the basis of the sidewalk conversation.
As the General Counsel points out, even on the face of
the testimony of Leatherwood and Brgoch as to what
Smith allegedly stated, this was not cause for the termina-
tion of the two men. This conversation took place in day-
light on the main street of LaVeta before a number of wit-
nesses, including the town marshall, Potts. If this is strike
misconduct, it was not violent or of serious character and
does not rise to the stature of rendering the two strikers
unfit for further employment. The conversation was am-
biguous at best and I find that this was insufficient to sup-
port a decision to discharge the two employees. I find,
therefore, that the discharges of McQueen and Smith were
violative of Section 8(a)(3) and (1) of the Act. Richlands
Textile, Inc., 220 NLRB 615 (1975), and Afro-Urban Trans-
portation, Inc, 228 NLRB 213 (1976).
E. The Refusal To Reinstate the Strikers
It is manifest that the conduct of Respondent in reject-
ing the contract proposals of the Union , not making coun-
terproposals and taking the position that mandatory areas
of negotiation were not negotiable and refusing to bargain
because of the resort of the Union to the processes of the
Board constituted conduct violative of the Act . It therefore
follows that the strikers who struck in protest of this con-
duct herein were unfair labor practice strikers with full
rights of reinstatement.
There is evidence that the strikers were some 15 in num-
ber, and that available jobs in the bargaining unit had been
reduced somewhat as of February 26, 1975, when the
Union , in behalf of its constituents , advised Respondent
that they were unconditionally offering to return to work.
Thus, the number of jobs available as of February 26, 1975,
was less. While there is surface merit to the claim of the
General Counsel that the 15 strikers are entitled to immedi-
ate reinstatement , I find that , on compliance , it may be-
come necessary to put some of them upon a preferential
hiring list.
To sum up, Respondent refused to bargain over condi-
tions of mandatory bargaining, discharged two strikers
without sufficient cause, and failed to reinstate unfair labor
practice strikers.
And, even in the event Respondent now requires a lesser
complement of employees , it is obligated to return to work,
under a nondiscriminatory system based upon items such
as seniority or other nondiscriminatory tests, those unfair
labor practice strikers who were replaced during the strike.
Moreover , those not reinstated because of the reduction in
staff are to be placed upon a preferential hiring list. And as
for those who were replaced , it will be recommended that
Respondent be ordered to make them whole for any loss of
backpay, after their unconditional offer to return to work.
To conclude , Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(5), (3), and
(I)6
5 There is evidence concerning the need of a two-man versus a one-man 6 In my judgment, those of the 13 to be reinstated and those to be placed
crew in certain conditions, as well as the use of specific safety equipment upon a preferential hiring list, as well as the amounts of backpay to be
versus another type, but I deem it unnecessary to set this forth herein awarded, are properly a matter for the compliance stage of this matter
SAN ISABEL ELECTRIC SERVICES, INC. 1085
CONCLUSIONS OF LAW
1. San Isabel Electric Services, Inc., is an employer with-
in the meaning of Section 2(2) of the Act.
2. Local Union No. 667 of the International Brother-
hood of Electrical Workers, AFL-CIO, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
3. By discharging Walter Smith and James McQueen on
December 16, 1974, Respondent has engaged in unfair la-
bor practices within the meaning of Section 8(a)(3) of the
Act.
4. By refusing to reinstate the other 13 strikers named
above who were unfair labor practice strikers on and after
February 26, 1975, Respondent has engaged in conduct
violative of Section 8(a)(3) of the Act.
5. Respondent's line and service foremen, journeymen
linemen , groundmen, truck drivers, storeroom clerks-
building maintenance, meter testers, meter readers, appli-
ance servicemen, cashier-stenographers, cashier-clerk and
apprentices, but excluding office clerical and professional
employees, guards and supervisors constitute a unit appro-
priate for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
6. At all times material herein, the Union was and now
is the majority representative of the employees in the afore-
said bargaining unit within the meaning of Section 9(a) of
the Act.
7. By claiming that the Union insisted to the point of
impasse on mandatory arbitration of economic issues, by
insisting in the course of 11 bargaining meetings that it was
not negotiating, by taking the position that it would not
agree to include a number of the Union's contract propos-
als on the bargaining agenda, by refusing to bargain be-
cause the Union had filed an unfair labor practice charge,
and by taking the position that it would unilaterally estab-
lish safety and work rules and not negotiate same with the
Union, Respondent has engaged in unfair labor practices
within the meaning of Section 8(a)(5) of the Act.
8. By the foregoing, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
9. The aforesaid unfair labor practices are unfair labor
practices within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
I have found that the Respondent has violated Section
8(a)(3) and ( 1) of the Act by discharging Walter Smith and
James McQueen on December 16, 1974, and by refusing to
reinstate 13 other unfair labor practice strikers ; namely,
Simon Agirre , Frank Aranda , Vernon Blanton, William
Macovich , Guy Molinaro , Thomas Monarcho , Douglas
Rigirozzi , Jose Sais, John Zane, Wanda Pachorek, Rita
Thompson , Dana Dunagan, and Harold Jones on and after
February 26, 1975. I shall therefore recommend that Re-
spondent offer Smith and McQueen immediate and full
reinstatement to their positions or, if these positions no
longer exist, to substantially equivalent positions , without
prejudice to seniority or other rights and privileges . See the
The Chase National Bank of the City of New York, San
Juan, Puerto Rico, Branch , 65 NLRB 827 ( 1946).
I shall further recommend that Respondent make them
whole for any loss of pay they may have suffered as the
result of their discharge by payment of a sum of money
equal to that they normally would have earned from said
date to the date of Respondent's offer of reinstatement,
less net earnings , with backpay and interest thereon to be
computed in the manner prescribed by the Board in F. W.
Woolworth Company, 90 NLRB 289 (1950 ), and Isis Plumb-
ing & Heating Co., 138 NLRB 716 (1962).
As for the other 13, the same recommendations are
made including payment of backpay with the under-
standing that those for whom work is not available are to
be placed upon a preferential hiring list. As noted, the
treatment of this group lends itself to the compliance stage
of the case. And Respondent will be ordered to bargain
with the designated bargaining unit of its employees.
[Recommended Order omitted from publication ]