Viking Connectors Co.

National Labor Relations Board - Board Decisions

Oct 19, 1989

297 N.L.R.B. 95 (N.L.R.B. 1989)

VIKING CONNECTORS CO 95
Viking Connectors Co. and International Union,
United Automobile, Aerospace and Agricultural
Implement Workers of America, UAW Local
509, AFL-CIO. Cases 31-CA-16140 and 31-
CA-16527
October 19, 1989
DECISION AND ORDER
BY MEMBERS CRACRAFT, HIGGINS, AND
DEVANEY
On October 26, 1988, Administrative Law Judge
Clifford H Anderson issued the attached decision
The Respondent filed exceptions and a brief and
the General Counsel and the Charging Party filed
answering briefs The Charging Party also filed ex-
ceptions to which the Respondent filed an answer-
ing brief
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt his recommended Order
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Viking Connectors Co, Chatsworth,
Van Nuys, and Covina, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order
1 The Charging Party excepted to the judge's remedy First, It request-
ed that the Board reconsider the decision in Ex-Cell-0 Corp, 185 NLRB
107 (1970), and award compensation to employees equal to what it is rea-
sonable to assume they would have obtained if the Respondent had not
bargained in bad faith We decline to overrule Ex-Cell-0 The Charging
Party also requested an award of litigation expenses based on Tudee Prod-
ucts Inc , 194 NLRB 1234 (1972), which provides for reimbursement of
certain litigation costs where a party engages in frivolous litigation In
the circumstances of this case we do not find that an award of litigation
costs would be appropriate
The correct citation to Crane Co in sec B,1 of the judge's decision is
244 NLRB 103 (1979)
Ann L Weiman, Esq , for the General Co-tinsel
Christopher A Burrows, Tom Petrzdes, Esq and Thomas P
Burke, Esq , with them on brief (Pettit & Martin), of
Los Angeles, California, for the Respondent
David S Adelstein, Esq (Schwartz Steinsapir, Dohrmann
& Sommers), of Los Angeles, California, for the
Charging Party
DECISION
STATEMENT OF THE CASE
CLIFFORD H ANDERSON, Administrative Law Judge I
heard these consolidated cases in trial on April 26 and
27, 1988, in Los Angeles, California The matter arose as
follows On October 28, 1986, the International Union,
United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW Local 509, AFL-CIO
(the Union or the Charging Party) filed a charge docket-
ed as Case 31-CA-16140 against Viking Connectors Co
(Respondent or the Employer) 1 Following an investiga-
tion, the Regional Director for Region 31 of the Nation-
al Labor Relations Board (Board) issued a complaint and
notice of hearing on December 12, 1986, regarding Case
31-CA-16140 On February, 19, 1987, the Regional Di-
rector approved an all-party informal settlement agree-
ment concerning Case 31-CA-16140 On May 7, 1987,
the Charging Party filed a separate charge against Re-
spondent docketed as ,Case 31-CA-16527 Following an
investigation, on February 23, 1988, the Regional Direc-
tor for Region 31 set aside the informal settlement agree-
ment in Case 31-CA-16140 and issued an order consoli-
dating cases, consolidated amended complaint and notice
of hearing regarding Cases 31-CA-16140 and 31-CA-
16527
The complaint alleges and the answer denies that Re-
spondent violated Section 8(a)(5) and (1) of the National
Labor Relations Act (Act) by bargaining in bad faith
with the Union concerning production and maintenance
emploYees employed by Respondent at Its Chatsworth,
Van Ntiys, and Covina, California locations More specif-
ically, the General Counsel alleges that Respondent en-
gaged 'in bad-faith bargaining subsequent to the approval
of the settlement agreement described above, thereby
justifying the Regional Director's setting aside the settle-
ment agreement The General Counsel also alleges that
Respondent's bargaining before the 'settlement agreement
was approved constitutes additional violations of Section
8(a)(5) and (1) of the Act •
,FINDINGS OF FACT
All parties were given full opportunity to participate
at the hearing, to introduce relevant evidence, to call, ex-
amine, and cross-examine witnesses, to argue orally, and
to file postheanng briefs
On the entire record herein, including helpful briefs
from all parties, and from my observation of the wit-
nesses and their demeanor, I make the following
I The correct title of Respondent was not definitively established The
original charges in this matter addresssed Respondent as "Viking Con-
nectors Company" The complaints styled Respondent as 'Viking Con-
nectors, Inc ' Respondent's pleadings indicate the appellation "Viking
Connectors, Inc" is wrong and should properly be Viking Connectors
Co Respondent s pleadings seemed most consistent with the remainder
of the record evidence Inasmuch as there was no dispute regarding juris-
dictional facts or other substantive matters, Respondent s suggested title
is used herein If the matter remains in dispute, It may be litigated in sub-
sequent stages of this proceeding as necessary
297 NLRB No 15
96 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT2
Respondent is now and has been at all times material,
a State of California corporation with places of business
located in Chatsworth Covina and Van Nuys Califor
ma, where it is engaged in the manufacture and assembly
of electronic and electric connectors and related prod
ucts Respondent, in the course of its business operations
annually sells goods and services valued in excess of
$50 000 directly to customers located outside the State of
California Respondent is and has been at all times mate
nal an employer engaged in commerce and in a business
affecting commerce within the meaning of Section 2(6)
and (7) of the Act
I JURISDICTION
II LABOR ORGANIZATION
The Union is a labor organization within the meaning
of Section 2(5) of the Act
III ALLEGED UNFAIR LABOR PRACTICES
A Chronology of Events
1 Background
On August 15 1986 the Regional Director for Region
31 of the National Labor Relations Board, in Case 31-
RC-6054 certified the Union as representative of Re
spondent s employees in the following unit
All production and maintenance employees em
ployed by Respondent at its Chatsworth Van Nuys
and Covina California locations excluding office
clerical employees professional employees guards
and supervisors as defined in the Act and employ
ees of Sandia Corporation
There is no dispute that at all material times the unit has
been appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act
On August 18, 1986, the Union sent a letter to Re
spondent with the following text
The Employees of your Company have voted to af
filiate with U A W Local 509 Prior to meeting
with you for the purpose of negotiating an agree
ment, the Union is requesting the following mfor
mation
List of all Employees
Seniority dates of all Employees
Rate of pay of all Employees
List of all classifications including the minimum
and
maximum rate range
Minimum and maximum wages per hour and the
rate range of
2 As a result of the pleadings and stipulations of counsel includmg a
large number of stipulated exhibits the parties substantially reduced the
factual matters in dispute at the hearing Where not otherwise noted
these findings are based on the pleadings stipulations and stipulated doc
uments or uncontested documentary and testimonial evidence
each Employee and also the method of pro
gression
A copy of the Insurance Plan (including the
amount the
Company pays and the amount the Em
ployees [sic] pays)
The number of paid holidays in effect at your
plant
Pension Plan or Severance Plan if any
Requirements and amount of vacation
Incentive Plan if any
Night shift premium
Any other benefits or privileges that your Em
ployees now receive
On September 10 1986 Respondent sent the Union a
letter with the following text and attachments as de
scribed
Enclosed is a copy of the information you re
quested in your August 18 letter regarding Viking
employees name, rate of pay classification and serv
ice date We have no wage ranges or progression
We were working on this project as the union came
in and had not finalized or implemented the pro
gram
We observe 9 paid holidays have no pension
plan nor an incentive plan Our second shift premi
um is 300 and third 500 Vacation is accrued at the
rate of 2 weeks per year up to 5 years service and 3
weeks after 5 years service
Other benefits and our Medical benefits are out
lined in our Employee Handbook and Employee
Benefit Handbook The cost of the medical plans
are outlined on the attached sheet The company
cost of these programs is [quotations deleted]
2 Session one phase one bargammg3
An initial collective bargaining session was held pur
suant to prior agreement on October 9 1986 Present for
Respondent were Gerald Hedman Respondent s chief
negotiator, Don Miner Respondent s director of finance
and George Webster Respondent s production manager
Present for the Union were Howard Dickerson secre
tary treasurer of the Union Julian Cervantes vice presi
dent of the Union and an employee negotiating commit
tee composed of Jose Vallee Jesus Garcia and Mana
Martinez 4
Following opening exchanges and inquiries regarding
the authority of the parties to approve any agreement
reached and an initial procedural decision to seek tenta
tive agreement on an item by item basis the Union s
written proposal was reviewed This proposal had been
mailed to Respondent earlier in October and contained,
inter aim, a recognition clause, a union security and
3 Bargaining occurring before the settlement agreement is referred to
as phase one bargaining It occurred entirely in 1986 Postsettlement
agreement bargaining is referred to as phase two bargaining
* Unless otherwise noted the bargainers remained the same through
bargaining or the identity of particular bargainers was not relevant to re
solving the factual or legal Issues herein
VIKING CONNECTORS CO 97
checkoff clause, and a grievance and arbitration clause
providing for binding arbitration Following the presen-
tation of the Union's proposal, Hedman suggested that
the proposals submitted by the Union, if accepted, would
require an employee wage reduction He further suggest-
ed that existing wages need not be raised because market
conditions allowed filling available positions at existing
wage rates
Respondent did not present proposals at this session
but rather reviewed the economic outlook in the com-
puter industry and its own perceived place within that
industry Thus Respondent's negotiators argued that
business conditions had deteriorated over the preceding 2
years, that its customers were not economically vigor-
ous, and that "offshore competition had become particu-
larly acute"
3 Session two, phase one bargaining
The following day, October 10, 1986, a second bar-
gaining session was held Respondent presented a limited
number of proposals, including, inter aim, the following
contract clauses
Recognition
For the duration of this Agreement, employer rec-
ognizes union as per the Unit certified by the Na-
tional Labor Relations Board, Case #31-RC-6054,
for all present facilities, located within Zip Code
91311 as it existed on August 7, 1986
Employee Rights
In recognition of Section 7 employee rights and of
declining unionism in the United States and of Em-
ployer's right to an unreduced labor market, no em-
ployee shall be required to become or remain a
Union member, or to pay any dues or fees whatso-
ever to Union
Sub-Contracting and Plant Siting
The Employer may subcontract without limit, and
may locate, relocate, open, close, curtail or expand
any present or future plant whether or not covered
by this Agreement
No substantive agreement was reached at this session
Hedman complained of errors in the Union's proposal as-
serting that it was a waste of time to discuss the docu-
ment in light of its errors
4 Session three, phase one
The third bargaining session was held on October 20,
1986 5
Respondent submitted additional proposals including,
Inter aim, the following
Management Rights
The management of the operations and direction of
the workforce are vested exclusively in the Em-
ployer, who retains all management rights as most
broadly defined, except as specifically limited by
5 The Union had mailed its revised proposals to the Employer on Oc-
tober 17, 1986, which proposals were also delivered by hand on October
20
the explicit provisions of this 'Agreement Nothing
in this Agreement is intended to limit the Employ-
er's sole and exclusive rights to manage the oper-
ations and direct the work force
In addition to the general management preroga-
tives reserved by the Employer and recognized by
the Union, the Union specifically recognizes the
Employer's reserved rights to maintain, cancel,
modify, amend, restrict, expand or otherwise
change any existing benefit, program, policy, prac-
tice or procedure not specifically controlled by the
explicit language of this Agreement, and to institute,
cancel, modify, amend, restrict, or expand any bene-
fit, program, policy, -practice or procedure as it sees
fit, in its sole and exclusive judgment, as and when
it deems appropriate All benefits, work rules, and
working conditions or other terms and conditions of
employment shall remain as they are until revised,
amended, modified, expanded, restricted, cancelled,
added to or deleted from or otherwise changed by
the Employer in his [sic] sole and exclusive discre-
tion, as and when it deems appropriate
Wages
Wages, individual rates of pay, differentials, premi-
ums and progression ladders shall be determined
solely by the Employer, and may be revised from
time to time in whatever manner and whenever the
Employer deems appropriate
Respondent also proposed to continue the grievance pro-
cedure "separately provided and maintained by the Em-
ployer" A broad no-strike clause was also proposed
A discussion followed respecting the Employer's new
proposals Howard Dickerson addressed Respondent's
proposed management-rights clause suggesting the Em-
ployer's past practices ought to be continued Hedman
challenged this contention suggesting "perhaps so, per-
haps not" Dickerson noted that the Employer's pro-
posed grievance language referred to the Employer's
then existing procedures and asked for a copy of those
procedures Hedman responded that the procedure was
not a part of the agreement but would remain separate
The Union's wage proposal called for a 10-percent
annual wage increase for all employees Respondent
argued that the Union's wage proposal was exorbitant
particularly when considered with the Union's proposed
pension plan Respondent argued "our question is still on
the negative side as to how much employees will give
up" Respondent indicated it would prefer to have direct
wage payments rather than nonwage benefits such as va-
cations or other fringe benefits The parties' positions
were discussed and opinions exchanged concerning many
of the Employer's proposals including recognition, no
discrimination, employee rights, subcontracting and man-
agement rights As to other contract clauses such as
union access, Respondent indicated it was considering
changes in its proposal
5 Fourth session, phase one
The fourth bargaining session was held the following
day on October 21, 1986 The Union's proposals were re-
98 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
viewed with Respondent not accepting any of the pro-
posals Respondent was adamant that it did not wish to
accept any element of union security and further suggest-
ed that the Union's checkoff proposals were unsatisfac-
tory because Respondent was not interested in the union
status of employees and did not want to become the
Union's bookkeeper or collection bureau
Following this discussion, Respondent offered certain
modifications to its earlier proposals Respondent modi-
fied its subcontracting clause to add the language "Upon
written request from the Union, the Employer will dis-
cuss the effects on employees of its decision" In its rec-
ognition clause it deleted the language referring to the
zip code Finally, to its no-discrimination clause, it added
the additional phrase "during the life of this agreement"
Respondent made additional new proposals concerning
jury duty leave, funeral leave, union bulletin board main-
tenance, union representation, complete agreement, and
duration language The last paragraph of Respondent's
proposal respecting union representation stated
All employees of the Employer, whether Union
members are not, shall be eligible to be elected as
Shop Steward or Committee Person The first such
election shall be held at Viking within fifteen (15)
days following the signing of this Agreement, and
annually thereafter during the life of this Agree-
ment At each election, any person who has served
as either Steward or Committee Person at all time
within the immediately preceding three (3) year-
period will not be allowed to be a candidate for
either office until he or she has been at least three
(3) total years out of office
The Union agreed to consider Respondent's proposals
and an additional bargaining session was scheduled for
October 23, 1986
6 Fifth session, first phase
On October 23, 1986, the parties held an additional ne-
gotiation session in the absence of Howard Dickerson
Respondent's then-current proposals were reviewed Ad-
dressing funeral leave, the Union sought the addition of
stepsons and stepdaughters to those family members
whose death would trigger the funeral leave provisions
Respondent declined these proposals The Union further
requested that funeral leave be extended to include me-
morial services which proposal Respondent accepted
Regarding jury duty, the Union sought to increase the
paid jury leave from 10 to 20 days Respondent did not
agree to the increase Substantial discussion was held re-
garding the contract proposal covering the union bulletin
board The size of the bulletin board, its location, and
the specification of restrictions on what could be on the
bulletin board, as well as limits on the duration of post-
ing were all subjects of discussion with no resolution
reached on any item The Union proposed language lo-
cating the bulletin board by the timeclock Respondent
responded "perhaps—we haven't decided yet We are
proposing to have it within the plant"
Union representation at the plant was discussed The
Union sought supersemority for its representatives This
was declined by Respondent Respondent's proposal re-
quiring 3 weeks' notification prior to assumption of
duties by a new representative was challenged by the
Union as being too long and proposed that the Union's
agent assume his or her position immediately after provi-
sion of written notice to the Employer Respondent indi-
cated it would consider the matter and respond The
Union also objected to the Employer's proposal's provi-
sion that employees who were not members of the Union
were eligible to be union steward
Julian Cervantes complained that management's pro-
posal kept prior stewards and committee persons out of
office for 3 years and further complained of the need for
annual elections Hedman responded
We believe you can agree to anything you want
Whatever the Union does internally we don't care
about We would like to be able to agree on repre-
sentatives because it would probably help adminis-
tration of the agreement We want to work out lan-
guage telling the requirements et cetera for your
stewards to be recognized by Viking This is our
best offer
The grievance reference in the Employer's last propos-
al was again discussed Hedman's bargaining notes reflect
that he stated "The separate procedure is called 'em-
ployee appeals procedure,' and all your committee mem-
bers have received copies of Viking's handbook"
Respondent told the Union its proposals were overly
generous and unacceptable Following additional caucus-
es it was determined that no agreements could be
reached that day, and the parties agreed to meet the fol-
lowing day
7 Session six, phase one
On October 24, 1986, the parties again met in the ab-
sence of Howard Dickerson The meeting was brief with
the parties generally adhering to previous positions Re-
spondent did agree to a modification of its bulletin board
proposal, i e, the bulletin board could be locked by the
Union The meeting ended without additional negotia-
tions being scheduled Respondent suggested that there
was no need to continue bargaining as it had made its
"Last, Best and Final" offer and that the parties were at
impasse Cervantes called Hedman soon after the negoti-
ation session ended, seeking additional meetings Hedman
told Cervantes there was no need to continue negotia-
tions as Respondent had made its last concessions and
the Union did not agree to its proposals
8 Session seven, phase one
The parties met again on November 13, 1986 Cervan-
tes was absent, and Dickerson and Keith Skotnes were in
attendance Respondent's proposals were discussed with
tentative agreement being reached on funeral leave and
jury duty The bulletin board proposals were discussed
The Union sought language that the bulletin board be lo-
cated in a "prominent place" This proposal was rejected
by Viking who wished to retain the discretion in the
contract to locate the bulletin board wherever it wished
VIKING CONNECTORS CO 99
Respondent proposed a new grievance procedure and
no-strike clause The gnevance procedure was not man-
datory and allowed the Union to bring matters to arbi-
tration only with the Employer's agreement Respond-
ent's no-strike proposal stated
During the life of this Agreement, neither the em-
ployees nor the Union (including any of its agents
and employees) shall either engage in, encourage or
foster any strike, sympathy strike, interruption of
work, work stoppage or work slowdown or other-
wise interfere with the operations of the Employer
In the event of any conduct in violation of the
above, the Union shall be subject to financial liabil-
ity for such violation unless the Union does the fol-
lowing
1 Immediately after the beginning of such vio-
lation, declares publicly that such action is unau-
thorized and is a violation of this Agreement, and
2 Promptly orders employees to return to
work, notwithstanding the existence of any picket
line or other impediment, and
3 Refrains from challenging any disciplinary
action taken by the Employer relative to employ-
ees participating in or encouraging such conduct
The Employer has and may freely exercise the right
to hire replacements for those employees who are
disciplined or discharged for conduct in violation of
this no-strike commitment
Respondent also proposed a 3-year contract the dura-
tion of which was contingent on union acceptance of the
Employer's entire proposal Respondent rejected the
Union's written proposals and no further agreements
were reached on the Employer's submissions The meet-
ing then ended with the Union indicating it desired addi-
tional bargaining the following day with the assistance of
a Federal mediator
9 Session eight, phase one
The following day, November 14, 1986, the parties
met separately with the Federal mediator, Phyllis Cayse,
without direct face-to-face bargaining Respondent com-
plained to Cayse of delays in the Union's supplying a
"clean copy" of its proposals and that the Union's lead
negotiator had been unavailable during some previous
sessions The mediator was told by union agents that the
Union was desirous of obtaining an Employer wage pro-
posal and the Employer's acceptance of a union-security
clause The mediator returned to Respondent and it was
determined that there was no profit in attempting to ne-
gotiate further inasmuch as Respondent did not intend to
comply with the Union's demands
By letter dated November 14, 1986, prepared after the
session, Gerald Hedman sent a letter to Howard Dicker-
son with the following text
We regret that our bargaining process has not
produced an Agreement and that except for the two
items initialed yesterday as Tentatively Agreed e,
jury duty leave and funeral leave clauses], we are at
impasse on every other item
Enclosed is a copy of Viking's Last, Best and
Final Offer, including all the changes of positions
we have made The Union may accept this offer
any time until 12 Noon on Tuesday, November 18,
1986 by delivering written notice of acceptance to
Viking at its Chatsworth plant [address omitted]
If you do not accept the offer as outlined above,
Viking may choose to unilaterally implement all or
parts of the offer as and when it chooses anytime
after 12 Noon on Tuesday, November 18, 1986
On November 18, 1986, the Union sent Respondent a
letter with the following text, in part
This is to confirm our rejection of Viking's last,
best and final offer dated November 14, 1986 Even
av cursory inspection reveals that this offer does not
differ substantially from the Employer's initial pro-
posal Nor does it indicate any areas of substantial
movement on the part of the Employer
Indeed, almost every section of the final offer il-
lustrates the unwillingness of the Employer to com-
promise or for that matter, show any intent to reach
agreement on wages, hours, and other terms and
conditions of employment To declare impasse after
so few attempts at negotiation underscores the Em-
ployer's bad faith bargaining, as does the insistence
on, including non-mandatory subjects of bargaining
in at least one section of the final offer
10 The settlement agreement
On October 28, 1986, the Union filed Case 31-CA-
16140 accusing Respondent of bargaining in bad faith
On February 19, 1987, the Regional Director approved
an all-party settlement agreement which contained a non-
admission clause but did not contain any language ex-
tending the certification year As part of the agreement,
Respondent made the following assurances
WE WILL NOT rigidly adhere to impasse on any,
provision whereby we retain unilateral control over
wages, hours of employment and other terms and
conditions of employment
WE WILL NOT rigidly adhere to impasse on any
grievance procedure not to be included in any col-
lective-bargaining agreement, and over which we
retain unilateral control, and WE wILL. NOT propose,
as part of our last and final offer, a voluntary arbi-
tration procedure as the final step of the above-de-
scribed grievance procedure, where it is coupled
with a no-strike provision
WE WILL bargain in good faith with Local 509
over wages, hours of employment, and other terms
and conditions of employment of our employees
11 Session one, phase two
The parties resumed negotiations on March 24, 1987
Following discussion it was agreed that each party's out-
standing proposals remained valid and that the funeral
leave and jury duty clauses remained tentatively agreed
to Respondent notified the Union_ that it intended to
close its Covina, California plant and wished to move the
100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Covina employees to the Chatsworth facility Respond
ent submitted a written proposal regarding incentives
Respondent wished to offer to transferring employees
and discussion of the proposal ensued Following discus
sion on that topic, Respondent requested and received
permission to raise three employees wage rate from
$410 to $425 per hour
Respondent arguing it had a problem retaining certain
highly skilled workers at current wage rates proposed to
increase the top wage rates of the three top wage class'
fications within a contemplated 10 level classification
scheme The other seven levels were not further de
scribed nor were wage rates other than maximum rates
in the top three classifications discussed Respondent
noted its proposal would not increase the wage rates of
employees in those classifications automatically but
rather simply raise the ceiling of allowable wages with
decisions as to granting of individual wage increases to
remain within the Employer s discretion Respondent
also presented a modified grievance and arbitration/no
strike proposal which provided for mandatory binding
arbitration while retaining the no strike language cited
supra
Following a caucus, the parties again discussed the
union bulletin board clause Any agreement foundered
on the term prominent which the Union sought in con
trolling the location the of bulletin board The Employer
was not willing to have its discretion so limited The
Union agreed to the proposed wage increase in the three
classification wage ceilings but argued that an increase
should be given to everyone in the classifications to take
effect retroactively and that this should not occur until
all employees obtained raises Hedman responded that
there was no assurance that other employees would ever
receive wage Increases and that Respondent did not be
heve in retroactivity as a general proposition seeing no
economic or business justification for such after the fact
payments Respondent s proposed grievance procedure
was discussed at length with amendments to wording
being discussed and considered The Union opposed
combining any no strike clause particularly one with the
breadth of Respondent s proposed clause with the gnev
ance procedure
12 Session two, phase two
On April 2 1987 the parties met again with Julian
Cervantes present The Union informed Respondent that
it had received strike authorization and set a tentative
deadline of April 15 1987 for a strike unless meaningful
negotiations occurred and Respondent presented a full
proposal on all issues Respondent then presented new
and modified proposals These proposals included provi
mons to go into effect if the Covina operation were
transferred to the Chatsworth facility a grievance and
no strike procedure a paid vacation clause and an hours
of work clause Respondent s new proposed termination
of employment clause stated
Employees may be discharged at the discretion of
the Employer for a satisfactory reason A satisfac
tory reason is a nonpretextual reason which is satis
factory to the Employer
The Employer s proposals included a definition clause
and a layoff and recall clause The layoff and recall
clause in essence gave Respondent complete discretion in
selection of employees for layoff and recall save that,
where the Employer in its sole judgment determined two
employees were equal seniority would determine the
order of layoff or recall Respondent s language provided
that employees in layoff for 31 consecutive days would
be terminated
The Employer submitted a paid holiday clause which
provided eight paid holidays and holiday pay at 1 1/2
times base rates The Employer submitted a plant secun
ty clause and a section on unpaid leaves of absence The
unpaid leaves of absence clause provided inter aha 5
days of sick leave after 6 months of continuous employ
ment The new management rights clause stated
Section 1
The Employer retains all rights to manage and
direct the operations except to the extent such
rights are specifically limited or modified by the
terms of this Agreement Nothing in this Agreement
is Intended to limit the Employer's sole and exclu
sive right to manage the business and direct its
working force including (by way of example and
not by way of limitation) the right to establish new
jobs eliminate old jobs and increase or decrease the
number of jobs to set rates of pay during the term
of the Agreement to determme the products and
methods and means of manufacture including the
introduction of new or improved methods process
es and facilities the right to contract or subcontract
for goods or services of any kind, the right to
schedule and assign work transfer and lay off em
ployees and discipline, suspend and discharge them
for cause to extend maintain curtail or terminate
the operations of the Employer and determine the
size location and relocation of the plant facilities, to
determine the quality of workmanship required and
maintain performance records for all jobs to estab
hsh and require employees to observe reasonable
rules and regulations issued by the Employer to de
termme the number and starting time of shifts and
the number of persons to be actively employed
Section 2
The Union agrees that its officers agents and
members shall cooperate with the legitimate offers
of the Employer to train new employees to improve
the skill ability and production of present employ
ees and to reduce waste and spoilage of materials
Section 3
In addition to the general management preroga
fives reserved by the Employer and recognized by
the Union as exemplified above the Union specifi
cally recognizes the Employer s right to modify the
existing health care and/or insurance plans and any
programs, policies practices or procedures relating
thereto as deemed advisable in its sole and exclusive
judgment from time to time
VIKING CONNECTORS CO

101
The Erni)foyer also submitted group benefit language
which stated as follows
All non-introductory, regular, full-time employees
are covered under Viking's medical, life, accidental
death and dismemberment benefit plans Your bene-
fits booklet provides the details for each of the ben-
efits described above These benefits may be revised
as the Employer deems fit in its sole discretion, and
employee cost-sharing may be increase or decreased
whenever appropriate
The Employer also submitted a legality and complete-
ness article which at section 2 states
This document includes the entire -and 'complete
field of agreement between the parties and resulted
from negotiations in which each had unlimited right
and opportunity to make demands and proposals
with respect to any subject or matter in the area of
collective bargaining and each voluntarily and un-
qualifiedly waives the right and agrees that the
other party shall not be obligated to bargain collec-
tively with respect to any subject or matter referred
to or covered or not referred to or not covered in
this document even though such subject or matter
may not have been within the knowledge or con-
templation of either or both of the parties at the
time they negotiated and signed this Agreement
During this bargaining session the Union again sought
a union-security clause Respondent continued to oppose
compulsory union membership Dickerson asked
Hedman if Respondent's new proposal included a pro-
posal on wages and Hedman responded the Employer
had developed a plan "to be presented in due course"
The meeting ended without agreement
On April 8, 1987, Hedman sent Dickerson a letter con-
taining, inter aim, the following text
As I answered you on Thursday, Viking has for-
mulated and is finishing a comprehensive wage plan
for the bargaining unit You saw certain aspects of
it relating to the top three of ten possible levels
when we discussed those with you at some length
on March 24, and you agreed with our need to be
competitive with the labor market for our compara-
ble jobs
In any event, a copy of our proposal to date is
included with several updates and clarifications I
would like to call your attention to three articles
which incorporate substantive changes
The letter contains a modification to Respond-
ent's unpaid leaves of absence proposal to conform
to a court decision concerning California's pregnan-
cy leave statute The letter further mentions the
group benefits language which was modified to ex-
pressly cover the existing dental benefits Finally,
with respect to management rights, the letter con-
tained the following
MANAGEMENT RIGHTS As would seem ob-
vious by our stated willingness to present a compre-
hensive wage plan, the words, " to set rates of
pay " referred only to our desire to be able to
-grant general increases to Viking employees as ap-
propriate You will notice this has been clarified
Included with the letter was a 28-page composite of Re-
spondent's proposals with its then-current modifications
including an open-shop clause 6 with the following lan-
guage
No present or future employee shall be required, as
a condition of employment, to either become a
member of the Union or to maintain such Union
membership Neither shall any present or future em-
ployee be required for any reason to tender fees or
dues to the Union for bargaining representation,
such as (for example only) in an "Agency Shop" sit-
uation
14 Session three, phase two
The parties met again in bargaining on May 6, 1987
The Union presented a written response to the Employ-
er's earlier proposals The Union sought a union-security
clause which grandfathered existing employees and
sought to eliminate from Respondent's proposals the lan-
guage which reserved discretion to the Employer to take
various unilateral action or which lowered terms and
conditions of employment below existing levels
Respondent presented a complete 10-step wage classifi-
cation system incorporating existing job titles but did not
supply any proposed wage rates The Covina relocation
language was again discussed with Respondent urging
immediate consideration Respondent altered its April 8,
1987 proposal by increasing paid holidays from eight to
nine and establishing holiday pay at 1-1/2 times base rate
as a minimum with allowance for an increased rate The
grievance language was also modified
15 Session four, phase two
The parties met again in bargaining on May 28, 1987
The regular participants were present save Dickerson,
with Keith Skotnes acting as union chief negotiator Re-
spondent presented two written proposals at the session
The first was a list of minimum wage rates for each of
the 10 classification levels contained in its earlier propos-
al The Union inquired of Respondent whether or not
there would also be maximum wages proposed Hedman
suggested that whether maximum rates would be pro-
posed was "up to the course of bargaining" The second
written proposal was a modified layoff and recall provi-
sion which,m essence eliminated Respondent's unilateral
control .over the process and provided for 3 months' se-
mority .. retention as opposed to the then-existing 6-month
retention period -
Holiday pay was 'discussed and the Union noted that
the current employee handbook provided double-time
holiday pay while the Employer's last proposal provided
only for time-and-a-half rates The Union proposed re-
tention of the then-current double-time rate for holiday
pay Respondent responded that double-time pay was
6 Apparently this open shop language has not formerly been presented
at the April 2 session
102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
necessary at the time the company had adopted it but
was no longer an economic requirement The gnev
ance and arbitration clause was discussed in an effort to
compromise differences The Union s union security and
dues checkoff proposals were again discussed and reject
ed During this session Respondent withdrew its termma
non of employment proposal Further Respondent modi
fled its management rights clause to eliminate language
providing Respondent the right to unilaterally modify
group benefits
16 Session five phase two
The next collective bargaining session was held on
June 16 1987 Hedman was absent with Christopher
Burrdws serving as Respondent s chief negotiator At
this session Respondent proposed a complete wage and
classification clause establishing minimum and maximum
wages for each of the 10 classification levels The pro
posal called for the reduction of wages of those employ
ees who were in a particular classification but were paid
a rate over the maximum for that classification It further
provided in section 2 The Company reserves the right
to review market conditions and to increase employee
wages as deemed appropriate based upon the Employer s
interpretation of the labor market The proposal further
provided that merit pay would be awarded or re
moved by the Employer in its sole judgment and that
the Employer retains all rights to determine perform
ance standards and to set and enforce these standards
Discussion ensued regarding the proposed classifies
tion system and the effect of its implementation Re
spondent suggested that relatively few employees—four
or five—would have their wages cut by the proposal
The Union suggested its analysis led it to believe that
over 50 employees would have their wages cut in the
first three wage levels No agreement was forthcoming
17 Session six phase two
The next bargaining session was held on July 15 1987
with Chris Burrows in charge of negotiations for Re
spondent and Keith Skotnes for the Union At this ses
mon Respondent increased the minimum and maximum
wage proposal previously submitted by 8 cents per hour
for the lower seven classifications with the exception
that the level one minimum or starting rate remained un
changed In support of its proposals Respondent argued
that its June 16 wage proposal produced a net increase in
wage costs to the Employer of a total for all employees
of $5 25 per hour and at its July 15, 1987 proposal pro
duced a net total wage cost increase of $11 53 per hour 7
Respondent further confirmed that the language of its
section 3 of the proposed management rights clause
which gave it the right to modify health and insurance
plans would be deleted No new proposals or modifies
non of existing positions were submitted by the Union
and no agreements were reached at this session
7 Thus the Increase on total costs per hour per employee would be
this amount divided by the total number of employees in the unit Thus
if the unit contained 1C0 employees the cost increase per hour per em
ployee would be 5 25 cents and 11 53 cents respectively
A subsequent bargaining session was scheduled, then
postponed No subsequent sessions were ultimately held
because the Employer on August 20 1987, took the po
sition that the Union had lost majority support in the
unit and that it no longer represented unit employees
Respondent therefore withdrew recognition of the Union
and has not modified that position to date
B Analysis and Conclusions
1 The issues presented
The General Counsel in this case alleges a violation of
Section 8(a)(5) of the Act which holds that it is an unfair
labor practice for an employer to refuse to bargain col
lectively with representatives of its employees Section
8(d) of the Act defines the obligation to bargain collec
tively as one mvolvmg the duty
to meet at reasonable times and confer in good faith
with respect to wages hours and other terms and
conditions of employment, or the negotiation of an
agreement or any question ansmg thereunder
but such obligation does not compel either party to
agree to a proposal or require the making of a con
cession
The Act requires, therefore, that the Board determine
whether or not an employer s conduct during bargaining
is such as to indicate a sincere effort to negotiate in good
faith and reach agreement In considenng these issues
the Board under the guidance of the courts scrutinizes
the parties overall conduct in bargaining to determine
whether or not bargaining has been conducted in good
faith
From the context of an employer s total conduct, it
must be decided whether the employer is lawfully
engaging in hard bargaining to achieve a contract
that it considers desirable or is unlawfully endeavor
mg to frustrate the possibility of arnvmg at any
agreement
J D Lunsford Plumbing 254 NLRB 360, 370 (1981),
quoting from West Coast Casket Co 192 NLRB 624, 636
(1971) enfd as relevant part 469 F 2d 871 (9th Or
1972)
The Board has recently listed in a summary of legal
principles some of the conduct it considers indicative of
a lack of good faith
Although an adamant insistence on a bargaining po
salon is not of itself a refusal to bargain in good
faith, Neon Sign Corp v NLRB 602 F 2d 1203 (5th
Cir 1979) other conduct has been held to be mdie
ative of a lack of good faith Such conduct includes
delaying tactics 13 unreasonable bargaining de
mands, 14 unilateral changes in mandatory subjects
of bargaining 15 efforts to bypass the umon 10 fail
ure to designate an agent with sufficient bargaining
VIKING CONNECTORS CO 103
authority," withdraw of already agreed-upon pro-
visions," and arbitrary scheduling of meetings 18
13 NLRB v Wonder State Mfg Co, 344 F 2d 210 (8th Or
1965), Crane Co 244 NLRB 103 (1979)
" NLRB v Holmes Tuttle Broadway Ford, 465 F 2d 717 (9th
Or 1972)
"NLRB v Fitzgerald Mills Corp, 133 NLRB 877 (1961), enfd
313 F 2d 260 (2d Cir 1963), cert denied 375 U S 834 (1963)
i8 Cal-Pacific Poultry, 163 NLRB 716 (1967)
" Billups Western Petroleum Ca, 169 NLRB 964 (1968), enfd
416 F 2d 1333 (5th Or 1969)
18 Valley Oil Co, 210 NLRB 370 (1974)
18 Moore Drop Forging Co, 144 NLRB 165 (1963)
Atlanta Hilton & Tower, 271 NLRB 1600, 1603 (1984)
In the instant case no contentions are made that Re-
spondent's agents lacked authority, that meetings were
delayed, or that unilateral changes or withdrawal of
agreed-upon provisions occurred The thrust of the Gen-
eral Counsel and the Charging Party's argument herein is
that Respondent made unreasonable bargaining demands
which were designed not to reach an agreement but
rather to frustrate one Thus, they argue Respondent (1)
insisted on proposals on nonmandatory subjects, (2) in-
sisted on contract language which would give Respond-
ent substantial unilateral control over working condi-
tions, and (3) by making unreasonable proposals respect-
ing wages and other terms and conditions of employ-
ment, Respondent failed to bargain in good faith Re-
spondent argues its bargaining was hard but fair and in-
volved concessions on its part not matched by the
Union
The "unreasonable bargaining demands" classification
set forth in the Atlanta Hilton's recitation of traditional
indicia of bad-faith bargaining, supra, has been a difficult
area subject to ongoing development and interpretation
by the Board and the courts In the recent case of Reich-
hold Chemicals, 288 NLRB 69 (1988), the Board restated
its views concerning the relevance of specific bargaining
proposals in determining whether a party has bargained
in bad faith The Board stated at 69-70
That we will read bargaining contract proposals
does not mean, however, that we will decide that
particular proposals are either "acceptable" or "un-
acceptable" to a party Instead, relying on the
Board's cumulative institutional experience in ad-
ministering the Act, we shall continue to examine
proposals when appropriate and consider whether,
on the basis of objective factors, a demand is clearly
designed to frustrate agreement on a collective-bar-
gaining contract The Board's task in cases alleging
bad-faith bargaining is the often difficult one of de-
termining a party's intent from the aggregate of its
conduct In performing this task we will strive to
avoid making purely subjective judgments concern-
ing the substance of proposals
Each party to collective bargaining "has an en-
forceable right to good faith bargaining on the part
of the other " 7 Enforcement of that nght is one of
the Board's most important responsibilities Indeed,
the fundamental rights guaranteed employees by the
Act—to act in concert, to organize, and to freely
choose a bargaining agent—are meaningless if their
employer can make a mockery of the duty to bar-
gain by adhering to proposals which clearly demon-
strate an intent not to reach an agreement with the
employees' selected collective-bargaining represent-
ative The Board will not have fulfilled its obliga-
tion to look at the whole picture of a party's con-
duct in negotiations if we have ignored what is
often the central aspect of bargaining, i e, the pro-
posals advanced by the parties 8
7 Eastern Maine Medical Center v NLRB, 658 F 2d 1 (1st Or
1981)
8 As the court in Eastern Maine Medical Center, supra at 10, ob
served
There is indeed a tension created by asking the Board to
judge the reasonableness of the bargainers, but not to supervise
the substance of their bargaining The major resource making
this tension tolerable is the agency's accumulated institutional
experience in making precisely these thoughts of judgment We
thus do not likely disregard the Board s informed judgment in
the especially delicate task of judging whether, in context, a
strategy of bargaining is more likely calculated to obstruct
agreement than to bring about the best compromise possible
[Citations omitted ]
The instant case also involves the setting aside of a set-
tlement agreement entered into in midbargaimng The
consideration of the propriety of setting aside a settle-
ment agreement in such circumstances was recently dis-
cussed in Carlsen Porsche Audi, 266 NLRB 141 (1983) In
essence, the propriety of setting aside a settlement agree-
ment involves consideration of an employer's postsettle-
ment conduct using the evidence of presettlement con-
duct as background evidence Only if a determination is
made that postsettlement conduct constitutes an unfair
labor practice may the settlement agreement be set aside
and the presettlement conduct considered as a separate
unfair labor practice
2 The Employer's post-February 1987 or phase'
two bargaining
At the onset it is appropriate to consider Respondent's
conduct following approval of the settlement agreement
consistent with the provisions of Carlsen Porsche Audi,
supra
a The General Counsel's complaint allegations
Paragraph 11 of the consolidated complaint alleges
that at various times between the months of March
through July 1987, Respondent
(a) proposed and rigidly adhered to a wage pro-
vision reserving to Respondent the right to increase
wages, to grant or remove step increases, to award
or remove merit pay, and to select and remove lead
persons and determine their pay,
(b) proposed and rigidly adhered to provisions
reducing current employee wages, layoff and holi-
day benefits, with no accompanying claim of eco-
nomic necessities,
(c) proposed and rigidly adhered to provisions ef-
fectively reserving to Respondent the right to
change, reduce or increase work hours
104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The General Counsel further alleges that Respondent by
its overall acts and conduct has failed and refused to
bargain collectively As part of the remedy provision of
the complaint, the General Counsel seeks an extension of
the bargaining year consistent with Mar Jac Poultry 136
NLRB 385 (1982) as modified by Colfor Inc 282
NLRB 1173 (1987)
b Respondents proposals
As set forth in part in the recitation of bargaining
proposals, supra Respondent consistently sought to re
serve to itself by explicit contract language the right to
review market conditions and to increase employee
wages as deemed appropriate based upon the Employer s
interpretation of the labor market The Employer s final
proposal on July 15 1977 contained the following The
Employer may grant earlier or larger increases in recog
ninon of employee performance Such extra discretion
ary pay may also be removed when in the Employer s
sole judgment, the reason for the earlier or larger in
creases no longer exist The Employer s proposal fur
ther stated The Employer retains all rights to determine
performance standards and to set and enforce these
standards Merit pay, in the Employer s final proposal,
included the following
Merit pay may be awarded by the Employer above
the job rate as and when it deems meritorious per
formance warrants same, and the Employer may
remove merit pay when in its sole judgment, the
meritorious performance no longer exist
With respect to unit leadpersons the Employer s propos
al states The selection and removal of leadpersons if
any and the amounts of lead pay if any shall be deter
mined by the Employer
Disregarding the Employer s earlier proposals which
called for wages to be entirely within its discretion Re
spondent first proposed minimum wage rates for the
entire unit, save leadmen on May 28 1987 At the June
16 1987 session maximum wage rates were first pro
posed by Respondent On July 15 1987 session Respond
ent proposed an 8 cent per hour increase to the wage
ranges of the lower 7 of 10 job classifications
Respondent s last proposals with the exception of cer
tam clauses agreed on by the Union provided largely for
a continuation of existing benefits 8 Thus group medical
and dental benefits life and accidental death, and dis
memberment plans remained the same The Employer of
fered reductions from current levels of holiday pay Thus
the employee benefit handbook in effect at relevant times
for unit employees describes double time wages for
working on holidays The Employer s last proposals to
the Union offered time and a half for holiday pay Re
a There is some confusion respecting the number of paid holidays final
ly offered by the Employer The Employer s earlier proposal of eight
paid holidays was Increased to nine on May 6 1987 as reflected in both
Respondent s and the Union s bargaining notes The stipulated exhibits of
subsequent proposals however do not carry forward this Improved offer
rather they simply recapitulate the original eight holiday offer In light of
this confusion I do not rely on the issue of the number of paid holidays
in my determinations herein
spectmg wages the Employer s first complete proposal
was made on June 16 1987 and increased as noted on
July 15, 1987 Both wage proposals in the Employer s
unchallenged calculations resulted in a net increase in
total wage costs to the Employer The Union and the
General Counsel note that the wage range proposals of
the Employer require wage decreases among a signifi
cant number of employees Further they note that the
Employer persisted in proposing wage range minimums
which did not correspond to the wages actually paid em
ployees For example at level 1 the Employer s original
ly proposed starting rate of $3 80 per hour an amount
not increased in the July 15 1987 offer was artifically
low inasmuch as employees were not then being hired by
Respondent at less than $425 an hour
Certain of Respondent s more onerous proposals were
abandoned in later negotiations Thus the Employer s im
nal wage layoff and recall grievance and arbitration,
and termination of employment proposals initially re
served total control and discretion to the Employer
Such control was significantly modified by the Employ
er s May 28, 1985 proposal So too the Employer in the
May 28 June 16 and July 15 bargaining sessions made
clear that new wage classifications were subject to the
grievance and arbitration clause that termination for
cause would be subject to the grievance and arbitration
clause by the addition of whatever language is neces
sary and that the management rights clause would be
modified to restrict the Employer s nghts to modify ben
efit plans during the life of the contract The Employer s
union representative clause which until June 16 restricted
the Union s right to limit union steward appointments in
the manner inconsistent with the Union s Internal rules
was modified as per NLRB concerns on June 16
c Analysis regarding phase two bargaining
The bargaining after the settlement agreement was en
tered into on February 19 1987, presents narrow ques
tons essentially limited to the propriety of Respondent s
proposals offered in bargaining First the commumca
tions between Respondent and unit employees contended
by the General Counsel as being improper occurred
during phase one bargaining and hence if improper
were subsumed into the settlement agreement While the
parties in this closely litigated case raised various ques
tions regarding the propriety of statements made at the
bargaining table late arrivals and substitutions for absent
negotiators I found these factors peripheral to the main
issues and not on this record, significant to the outcome
of the case or worthy of discussion here
The General Counsel suggests, somewhat grossly char
actenzing her arguments that Respondent engaged in
bad faith bargaining by (1) delaying offers concerning
wages, (2) making proposals which retained employer
control over working conditions thus depriving the
Union of its representational role (3) by making regres
sive proposals when compared and contrasted to existing
conditions, (4) making proposals which it realized no
union could accept and (5) through its total course of
conduct not seeking to reach agreement
VIKING CONNECTORS CO 105
Turning initially to the General Counsel's contention
that Respondent's proposals in their totality seek to un-
dermine the Union's role as exclusive representative of
employees concerning wages, hours and working condi-
tions, it is clear from the summary immediately above
and the more detailed description of proposals set forth
supra that the Employer initially sought to retain virtual-
ly all authonty to itself in its contract proposals and, by
the conclusion of the negotiations in July 1987, had only
slightly modified that position This is so even in the pro-
posals as to wages because the wage ranges proposed by
Respondent coupled with its proposed retained authonty
to increase wages in any manner it saw fit, as well as its
complete retention over merit increases and decreases
and leadpersons' wages, gave the Employer large discre-
tion in controlling employee wages 9
The Board's decision in A-1 Kingsize Sandwiches, 265
NLRB 850 (1982), enfd 732 F 2d 872 (11th Cir 1984),
cert denied 469 U S 1035 (1984), cited with approval in
Reichhold Chemicals, 288 NLRB 69 (1988), contains a
learned marshaling of Board and court authority that
such attempts to preserve control by an employer is a
violation of Section 8(a)(5) of the Act I so find here Re-
spondent argues that the Board has found employer pro-
posals which retain discretion with regard to wage and
merit pay proper in Southern Wipers, 192 NLRB 816
(1971) The employer's discretion in its proposals in that
case however falls far short of the widespread control
which Respondent attempted to reserve to itself in the
Instant matter
The General Counsel also argues that Respondent's
proposals were in part regressive in that they in various
degrees offered lower benefits than employees currently
enjoyed, that the Employer bargained inflexibly on such
matters as union security and even such minor matters as
union bulletin board language The General Counsel's ar-
guments here are substantially weaker under current
Board law The Employer's explanation early in bargain-
ing that it did not wish to increase its employee labor
costs and that increases in benefits in one area would re-
quire concomitant reductions in other areas coupled with
its view that it did not wish to compel employee mem-
bership in the Union are, under current Board law, ex-
amples of hard rather than surface bargaining So too the
fact that the Employer's July wage proposals, setting
aside the question of the timing of those proposals which
will be considered, infra, produced a significant number
of wage reductions for unit employees, is not, standing
alone, independently a violation where the total net
wage costs are increased The General Counsel did not
contest Respondent's assertions at the heanng which
were consistent with its assertions at the bargaining table,
that its wage proposals, in aggregate, constituted a net
increase in the Employer's wage bill The Employer's
9 The wage ranges themselves when compared and contrasted to
actual wages paid by the Employer reveal an even larger discretion For
example the wage range proposed by the Employer for level I started at
a significantly lower rate than was in fact being offered to starting em-
ployees Thus were the proposal to be accepted, Respondent would have
an ability to lower starting wages from its current practice without being
in violation of the contract's terms or to Increase them under its reserved
nght to do so
brief argument during bargaining that it did not believe
the labor market merited its then existing double-time
holiday pay rather than its proposed time-and-one-half
holiday pay is likewise in isolation more a matter of hard
rather than surface bargaining
While I have considered those employer proposals the
General Counsel and Charging Party characterized as re-
gressive in reaching a decision on the totality of conduct
allegation of the General Counsel, I do not find, under
current Board law, including the recent Reichhold deci-
sion closely analyzed by the parties at the hearing and on
brief, that Respondent has violated the Act by bargain-
ing in bad faith solely on the basis of the "regressive"
contentions of the General Counsel
An important part of the General Counsel's case, par-
ticularly in light of Respondent's withdrawal of recogni-
tion at the close of the certification year, is that Re-
spondent withheld any significant proposal on wages
until the 1 1 th hour thereby preventing meaningful bar-
gaining from occurring sufficient for a contract to be
reached before the expiration of the certification year
Respondent contended during bargaining and at the
hearing, without challenge by the General Counsel, that
its wage pattern at the commencement of the certifica-
tion year was somewhat dispersed and unstructured as a
result of the consolidation of several different business
entities At the initial bargaining sessions Respondent
represented that it had been endeavoring for some time
to systematize or standardize its wage structure and that
such a wage proposal would be forthcoming Respond-
ent's early bargaining on general wages however was
limited to rejecting the Union's proposal for a general
wage increase and submitting its own proposal that
wages would be left in its control Respondent did not
propose a wage structure, even without wages attached
to the structure until May 28 and did not propose its first
complete wage package until the penultimate bargaining
session on June 16, 1987 10
Respondent's defense to the attack on the timing of its
wage proposals is founded on the notion that Respondent
had long been diligently working on a new wage struc-
ture I reject this assertion as insufficient on several
grounds First, It is incumbent on the parties to bargain-
ing to treat negotiations seriously Respondent's chief ne-
gotiator was a highly experienced negotiator who could
well understand the need for a complete proposal on
such an important matter as wages to be made early in
the bargaining Yet, initially, only a proposal to retain
employer control over wages was made Second, by Re-
'° Wage minimums had been proposed at the previous session but a
"minimums only" proposal does not constitute a complete wage proposal
Further Respondent's negotiator's assertion at that session that maximum
rates would be proposed only as bargaining justified, is Important direct
evidence of the Employer's willingness to delay or withhold its wage
proposals to gam tactical and even strategic advantage over the Union
Respondent argues its discretion over wages in its final proposals was
heavily circumscribed by the proposal's requirement of 5-cent increases
semiannually for employees I do not find this argument persuasive be-
cause the size of such mandated increases would require least 20 years for
an employee to traverse the narrowest classification level wage range
Larger wage Increases were within the Employer's discretion and could
be awarded and later withdrawn Thus true practical discretion remained
with the Employer
106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent's own statements, it had been working on a
new wage structure for a substantial period before the
Union's certification However complex Respondent's
wage classification determination process may have been,
and on this record there is no evidence of the extent, du-
ration or intensity of that process, the penod of time
before the certification coupled with the lengthy period
which passed before the classification proposal was pre-
sented to the Union is simply far too great on this record
to satisfy the obligation of an employer to treat negotia-
tions as a matter of pnonty in its business arrangements
I find on this record that the Employer delayed its
wage offers not because of the difficulty of arriving at a
wage classification system but rather to delay negotia-
tions beyond the certification year I have previously
found that the fact that the Employer's wage proposals
resulted in an effective wage reduction for a significant
number of employees was not in of itself violative of the
Act The difficulty and disagreements in ascertaining the
effects of the Employer's wage proposals, given that
wage ranges were involved and coupled with the fact
that the Employer had reserved to itself discretion on
granting increases, made the likelihood even of an imme-
diate understanding of the proposal's effects and conse-
quences by the Union virtually impossible The 1 1 th
hour nature of wage proposals which were certain to re-
quire analysis by the Union coupled with Respondent's
failure to explain the wage proposals save on a "net cost
basis" in bargaining virtually assured that time would in-
evitably pass before appreciation and understanding of
the proposals could be achieved by the Union This cir-
cumstance increased the likelihood that the late wage
proposals would push the negotiations past the certifica-
tion year I find the Employer's delay in making its wage
proposals despite the Union's ongoing efforts to obtain
such a proposal is an independent violation of Section
8(a)(5) of the Act and is direct evidence that Respondent
was bargaining not with an intention to reach agreement,
but rather with an intention to delay bargaining until the
Employer might withdraw recognition from the Union
d Conclusions regarding phase two bargaining
Considering the above factors as well as the evidence
of presettlement agreement bargaining to the extent cog-
nizable under Carlsen Porsche Audi, supra, and based on
the entire pattern of bargaining, I have found Respond-
ent's postsettlement agreement bargaining was not in
good faith and therefore violated Section 8(a)(5) and (1)
of the Act As discussed above, Respondent's proposals
by retaining substantial control over wages, hours, and
working conditions sought to diminish the role of the
Union as the employees' representative Further Re-
spondent's substantial delay in tendering its wage propos-
als and delay in removing the most onerous and over-
reaching of its proposals until the 11th hour of the certi-
fication year are persuasive evidence, on this record, that
Respondent did not bargain with an intention to reach
agreement with the Union but rather engaged in the
course of conduct designed to frustrate and delay agree-
ment and, in so doing, undermine the Union's support
among employees in an attempt delay any agreement
with the Union until after the certification year when
recognition might be withdrawn As noted above, this
decision does not turn so much on the lack of "generosi-
ty" or "regressiveness" of Respondent's economic pro-
posals as in those proposals' wide-ranging retention of
control over wages, hours, and working conditions as
well as the significant delay in making a complete pro-
posal covering wages
3 The settlement agreement
Having found that Respondent engaged in bad-faith
bargaining subsequent to the approval of the settlement
agreement, I find the Regional Director's determination
that the settlement agreement be set aside was correct
Research Products/Blankenship Co, 258 NLRB 19 (1981),
Roadway Express, 254 NLRB 668 (1981) It is therefore
appropriate to consider the presettlement or "Phase
One" bargaining in light of the allegations of the com-
plaint
4 Phase one bargaining
The eight collective-bargaining sessions held during
phase one occurred from October 9 through November
14, 1986, with the final session not involving face-to-face
meetings but rather involving separate discussions with
the assistance of a Federal Mediation and Conciliation
official That final session foundered when, although the
facts are somewhat in dispute, it became clear that the
Union thought further bargaining unprofitable, inter aim,
because of the absence of a comprehensive wage propos-
al from the Employer
The proposals offered by the Employer dunng phase
one bargaining, as set forth in some detail supra, include
several proposals which were subsequently abandoned
Thus the nonbinding grievance and arbitration clause
coupled with a strong no-strike clause, the very broad
management rights clause, the language reserving to Re-
spondent exclusive control over employee termination,
and the proposals reserving to Respondent the right to
change wages and fringe benefits essentially at will, were
modified over time as discussed supra The cases cited in
the proceeding analysis may be applied to these matters
without additional discussion Certainly if the lesser
degree of control retained by Respondent in its phase
two bargaining proposals and the delay in offering wage
proposals in phase two bargaining constitutes a failure to
bargain in good faith, Respondent's much more restnct-
mg proposals in phase one bargaining coupled with a
complete absence of a phase one wage proposal despite
the Union's efforts to obtain one," support the same
findings as those made, supra, as to phase two bargain-
ing
Two phase one matters require additional analysis
First was the Employer's "employee rights" proposal
which was part of its initial offer and was maintained,
without modification, throughout Phase One bargaining
That proposal, stated
Employee Rights
" The proposal that the Employer set wages is not regarded as a
good-faith proposal for purposes of this analysis
VIKING CONNECTORS CO 107
In recognition of Section 7 employee rights and
of declining unionism in the United States emphasis
added and of employer's right to an unreduced
labor market, no employee shall be required to
become or remain a Union member, or to pay any
dues or fees whatsoever to Union
In the analysis of phase two bargaining, supra, I held
that the General Counsel's "intransigence argument," 1 e,
that Respondent's inflexibility on matters such as union
security, union bulletin board, and union representation12
did not support a finding of an independent violation of
the Act The Board's view emphasized in recent cases is
that such conduct is hard rather than surface bargaining
if it occurred in a context free of otherwise improper
bargaining The employee rights proposal quoted above
however is not simply an example of an employer's in-
sistence on retention of its own rights and a reluctance to
assist the union, i e, hard bargaining The clause pro-
posed by the Employer and insisted on without modifica-
tion throughout phase one bargaining contains language
which is gratuitously derogatory of trade unionism gen-
erally and hence the Charging Party There is no eco-
nomic benefit to the Employer nor any in restriction of
Union advantages in the inclusion of the proposals' "de-
clining unionism" phrasing Such language even though
without any effect on the substantive nghts of the par-
ties, is clearly a matter about which any trade union
would have strong and hostile views regarding inclusion
in a collective-bargaining agreement I find that this pro-
posal and the Employer's resistance to any modification
of the proposal until April 1987, when more than half
the certification year had passed, was designed not only
to enrage the Union's negotiators but to retard any likeli-
hood of an agreement being reached The Employer's
negotiator was an experienced employer representative
with a long history of collective-bargaining representa-
tion I find he would have, without a doubt, recognized
the effect of such a proposal on the Union Thus I find
the maintenance of this proposal by the Employer is
direct evidence of the Employer's intention to poison the
negotiations, not for the purpose of improving the Em-
ployer's bargaining position, but rather to prevent any
agreement from being reached during the certification
year
A second matter relevant only to phase one bargaining
is the Employer's proposals regarding union representa-
tion insofar as they attempted to control the Union's in-
ternal procedures The General Counsel correctly cites
the case of NLRB v Borg-Warner Corp, 356 U S 342,
350 (1958), for the proposition that the maintenance of
such proposals to impasse violates Section 8(a)(5) of the
Act While these proposals were modified in phase two,
they continued through phase one bargaining
In conclusion, for the reasons set forth in my analysis
of phase two bargaining, supra, and in light of the discus-
sion immediately above regarding aspects of the bargain-
12 Here union representation proposals are considered, not as an at-
tempt to Interfere with the Union s representational role, a matter dis-
cussed Infra, but rather as part of the Employer's failure to make propos-
als or concessions which would allow the Union greater ease of adminis-
tration such as union checkoff or supersemonty for union stewards
mg which were limited to phase one, and on the record
as a whole, I find that Respondent's phase one bargain-
ing, as a predicate to the phase two bargaining found
violative above, was both independently violative of the
Act and constituted but one part of Respondent's total
course of conduct in seeking (1) to avoid reaching an
agreement with the Union, and (2) to undermine the
Union's role as representative of Respondent's employ-
ees In my consideration of the employees' rights propos-
al language quoted immediately above, I found direct
evidence that Respondent's motives dunng negotiations
were to avoid reaching agreement with the Union until,
through the passage of time, the Employer could attempt
to withdraw recognition of the Union as representative
of its employees All this conduct, on the basis of the
cases cited supra, violates Section 8(a)(5) and (1) of the
Act and I so find 13
5 The Employer's August 1987 withdrawal
of recognition
The General Counsel's complaint alleges that at all
times following its certification, the Union has been rep-
resentative of employees within the unit This allegation
brings into issue Respondent's August 1987 withdrawal
of recognition The Board has long held that an irrebuta-
ble presumption of continuing majority status on the
behalf of a certified union continues through the certifi-
cation year Thereafter a labor organization enjoys a "re-
buttable presumption" of continuing majority which may
be challenged by an employer in certain circumstances
The basis for the Employer's withdrawal of recognition
herein was not litigated at the hearing and, for purposes
of this analysis, may be presumed to comply with the
Board requirements for evidence sufficient to overcome
a rebuttable presumption of union majority
An important limitation to an employer's ability to
withdraw recognition from a union however is that such
action must occur in a context free from unfair labor
practices Terrell Machine Co, 173 NLRB 1480 (1969),
enfd 427 F 2d 1088 (4th Cir 1970) Having found that
Respondent in its entire course of bargaining was not
seeking to reach agreement with the Union but was
rather acting to frustrate any agreement and to delay ef-
fective bargaining until the conclusion of the certification
year, all in violation of Section 8(a)(5) and (1) of the
Act, it is clear that Respondent's withdrawal of recogni-
tion hard upon the conclusion of the certification year is
invalid and cannot stand
One of the purposes of the Board's provision of an ir-
rebutable presumption of majority status during the certi-
fication year is to allow bargaining to proceed unencum-
bered by challenges to the Union's representative status
for a sufficient penod of time to allow the Union to to
"show its stuff" to employees so that the employees'
13 The General Counsel submitted into evidence a series of wntten
communications by the Employer to unit employees during phase one
bargaining I have considered these communications and, in light of the
findings above, do not find It necessary to analyze them separately While
part of the record as a whole and considered in reaching the decisions
herein, I do not find them to be a significant factor in evaluating the Em-
ployer's conduct herein nor separately violative of the Act
108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
wishes and desires respecting continued representation,
to the extent they are to be tested, will be informed by
observation of the Union's performance over a reasona-
ble period If a labor organization is, by an employer's
illegal course of conduct, prevented from engaging in ef-
fective bargaining, the union's support amongst employ-
ees is improperly eroded If that eroded support may
then be advanced by an employer as the basis for with-
drawing recognition, the employer benefits from its own
wrongdoing 14 Accordingly, I find that Respondent's
withdrawal of recognition occurred during the time it
was engaging in ongoing unfair labor practices and
therefore, is invalid Inasmuch as the record indicates
that the Employer's withdrawal of recognition has not
been rescinded and no further bargaining has occurred
since July 1987, it follows that the Union continues to
represent the unit employees of Respondent and that Re-
spondent's continued withholding of recognition of the
Union is also improper
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall order it to cease and desist
therefrom and take certain affirmative action designed to
effectuate the purposes and policies of the Act including
the posting of remedial notices in English and Spanish
languages
The General Counsel seeks an extension of the Union's
certification year for a period of 9-1/2 months in order
that the Union may ultimately enjoy the same period of
good-faith bargaining uninterrupted by challenges to its
presumption of majority that it would have enjoyed had
the Employer engaged in good-faith bargaining through-
out the period at issue The General Counsel's cases are
apt for violations of this kind See Colorfor, Inc , 282
NLRB 1173 (1987), Mar-Jac Poultry Co, 136 NLRB 785
(1982) Respondent was put on notice of the relief the
General Counsel was seeking in the underlying com-
plaint I shall grant the remedy sought Accordingly, I
shall include in my recommended remedy a 9-1/2-month
extension of the certification period after bargaining re-
commences
• CONCLUSIONS OF LAW
1 Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act
2 The Union is a labor organization within the mean-
ing of Section 2(5) of the Act
3 At all times material the following described unit of
Respondent's employees constitutes the unit appropriate
for purposes of collective bargaining within the meaning
of Section 9(b) of the Act
All production and maintenance employees em-
ployed by Respondent at its Chatsworth, Van Nuys,
and Covina, California locations, excluding office
clerical employees, professional employees, guards
14 In part for this reason, the Board provides for extension of the certi-
fication year where the bargaining process has been tainted by employer
wrongdoing See remedy section, infra
and supervisors as defined in the Act, and employ-
ees of Sandia Corporation
4 At all times material herein, the Union has been the
exclusive representative for the purposes of collective
bargaining of the employees in the above-described unit
5 By refusing to bargain in good faith with the Union
as the exclusive representative of its employees in the
above described unit since on or about October 9, 1986,
and by withdrawing recognition form the Union on or
about August 20, 1987, Respondent has engaged in unfair
labor practices within the meaning of Section 8(a)(5) and
(1) of the Act
6 The unfair labor practices described above are
unfair labor practices affecting commerce within the
meaning of Section 2(2), (6), and (7) of the Act
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed"
ORDER
The Respondent, Viking Connectors Co, Chatsworth,
Van Nuys, and Covina, California, its officers, agents,
successors, and assigns, shall
1 Cease and desist from
(a) Unreasonably delaying contract proposals in order
to delay collective bargaining and undermine the Union's
support among employees
(b) Proposing and rigidly adhering to contract lan-
guage unreasonaly retaining Employer discretion over
wages, hours, and working conditions thereby undermin-
ing the Union's ability to represent employees
(c) Making contract proposals which serve no other
purpose but to impede negotiations and gratuitously
insult the Union and its collective-bargaining agents
(d) In any manner engaging in surface bargaining or
other collective bargaining not in good faith, without
real intention of reaching a meaningful collective-bar-
gaining agreement with International Union United
Automotive, Aerospace & Agricultural Implement
Workers of America, UAW Local 509, AFL-CIO, as
the designated exclusive bargaining representative of its
employees in the certified unit
(e) In any other manner interfering with, restraining,
or coercing employees in the exercise of their rights
guaranteed by Section 7 of the Act
2 Take the following affirmative action necessary to
effectuate the policies of the Act
(a) Recognize the Union as the exclusive representa-
tive of the employees in the following unit
All production and maintenance employees em-
ployed by Respondent at its Chatsworth, Van Nuys,
and Covina, California locations, excluding office
clerical employees, professional employees, guards
La If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
VIKING CONNECTORS CO 109
and supervisors as defined in the Act, and employ-
ees of Sandia Corporation
(b) Upon request, bargain collectively in good faith
with the above-named labor organization as the exclusive
representative of all Respondent's employees in the ap-
propriate unit and continue such bargaining for 9-1/2
months after the date of the first bargaining session fol-
lowing Respondent's formal notification of the Union of
its recognition and compliance with this decision
(c) Preserve and, on request, make available to the
Board or its agents, for examination and copying, all
records necessary to ensure that this recommended
Order has been complied with
(d) Post at its facilities copies of the attached notice
marked "Appendix"" and its Spanish-language equiva-
lent Copies of the notice, on forms provided by the Re-
gional Director for Region 31, after being signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt and maintained for
60 consecutive days in conspicuous ,places, including all
places where notices to employees are customarily
posted Reasonable steps shall be taken by Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material
(e) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply
16 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
You will recall that we have previously posted a notice
similar to this one wherein we made a commitment to
you to obey the law After a formal hearing at which all
parties had an opportunity to present evidence and state
their positions, it has been decided by the National
Labor Relations Board that we did not live up to our
promises contained in the first notice and that we have
continued to violate the National Labor Relations Act,
as amended Therefore, we have been ordered to post
this notice and further ordered to advise you that we
intend to honor the commitments made to you in this
notice
The International Union United Automobile, Aerospace
& Agricultural Implement Workers of America, UAW
Local 509, AFL-CIO has represented our employees in
the following unit since August 1986
All production and maintenance employees em-
ployed at our Chatsworth, Van Nuys, and Covina,
California locations, excluding office clerical em-
ployees, professional employees, guards and super-
visors as defined in the National Labor Relations
Act and employees of Sandia Corporation
WE WILL NOT wrongfully withdraw recognition from
the Union as representative of our employees in the unit
described above
WE WILL NOT refuse to bargain collectively with the
Union as the exclusive representative of our employees
in the unit described above
WE WILL NOT, during bargaining, unreasonably delay
making proposals regarding wages, hours and working
conditions in order to undermine the Union's support
amongst our employees
WE WILL NOT, during bargaining, make and adhere to
proposals seeking to reserve to ourselves the right to
control employees' wages, hours, and working conditions
in a manner that defeats the Union's ability to represent
its employees and seeks to undermine the Union's sup-
port among employees
WE WILL NOT, during bargaining, make and adhere to
contract proposals designed in whole or in part to frus-
trate bargaining and/or to embarrass and antagonize
umon negotiators
WE WILL NOT in any other manner interfere with, re-
strain, or coerce employees in the exercise of their rights
guaranteed by Section 7 of the National Labor Relations
Act
WE WILL recognize the Union as the exclusive repre-
sentative of our employees in the unit described above
upon resumption of bargaining in good faith and for 9-
1/2 months thereafter as if the initial year of certification
had not expired
WE WILL bargain collectively in good faith with the
Union as the exclusive representative of our employees
in the bargaining unit described above, concerning
wages, hours, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed, written agreement
VIKING CONNECTORS CO