Challenge-Cook Brothers

National Labor Relations Board - Board Decisions

Apr 8, 1988

288 N.L.R.B. 387 (N.L.R.B. 1988)

CHALLENGE—COOK BROS. 387
Cook Brothers Enterprises, Inc., d/b/a Challenge—
Cook Brothers and Machinists Automotive
Trades, District Lodge No. 190 of Northern
California, affiliated with International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO. Case 32-CA-2909
April 8, 1988
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND BABSON
On June 18, 1982, Administrative Law Judge
David P. McDonald issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel and the Charging
Party each filed limited cross-exceptions and briefs
in support.
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, 2 as modified, and to adopt the recom-
mended Order, as modified.
The judge found that the Respondent violated
Section 8(a)(5), (3), and (1) of the Act by: engaging
in bad-faith bargaining with the Union; refusing to
recognize and bargain with the Union; failing to
provide information requested by the Union for
bargaining; interrogating strike replacement appli-
cants about their union sympathies; unilaterally
eliminating a unit position in retaliation for the em-
ployees striking; and refusing to reinstate unfair
labor practice strikers on their unconditional offer
to return to work. We agree with the judge's find-
' In sec. III,B,3, par 2 of the judge's decision, the sentence beginning
with, "Burnett's recollection . . . ." should read, "Thacker's recollection
11
2 In adopting the judge's determination that the Respondent's question-
ing of stnke replacement applicants about their union sympathies consti-
tuted unlawful interrogation, we note that he nuscharactenzes certain as-
pects of W A. Sheaffer Pen Co., 199 NLRB 242 (1972) Although he
found, and we agree, that the Sheaffer case is distinguishable from the in-
stant case and that it affords no protection for the Respondent's actions,
the judge maccurately states that Sheaffer involved employer questioning
of employees rather than job applicants. Furthermore, the prestnke poll
of employees that did occur in that case was conducted by the union and
not the employer
In the absence of exceptions, we adopt, pro forma, the judge's dismissal
of the allegation that the Respondent coercively interrogated applicant
Andrew Burnett, noting that in reaching his conclusion the judge relied
on Burnett's testimony concerning his subjective reaction to the inter-
view questions, i e, that he was not coerced
We adopt the judge's finding that the Respondent's unilateral elimina-
tion of the mechanic position was retaliatory and in violation of Sec
8(aX5), (3), and (1) It violates Sec 8(a)(5) because, even if viewed as a
partial shutdown of the Respondent's operations, the action could not
properly be characterized as the mere exercise of an entrepreneurial pre-
rogative when the decision was made for antiunion motives See Straw-
sine Mfg. Co., 280 NLRB 553 (1986).
ings in all respects except for his determination that
the Respondent violated Section 8(a)(5) and (1) of
the Act by engaging in bad-faith bargaining tactics.
I. THE SURFACE BARGAINING ALLEGATIONS
As fully set forth in the judge's decision, the Re-
spondent and the Union have had a bargaining re-
lationship dating back approximately 40 years. The
parties' most recent collective-bargaining agree-
ment expired September 1, 1979. Following the ex-
piration of that contract, six negotiation sessions
took place. At the initial meeting on September 19,
1979, the Union presented its initial contract offer.
On October 2, 1979, the Respondent provided its
counterproposals. Citing adverse economic condi-
tions in the industry, on October 19, 1979, the Re-
spondent advised the Union that contrary to past
practice it would not be able to match the East
Bay area wage rates. Despite this setback on
wages, the parties agreed that same day on certain
pension issues. Thereafter, the Respondent provid-
ed the Union with a written version of its latest
offer. This document addressed the duration of the
agreement, provided a $1-an-hour wage increase
retroactive to the expiration of the previous agree-
ment, provided for hourly wage increases for each
of the remaining years of the contract, proposed a
retroactive increase in the amount the Respondent
would contribute to the pension plan, and provided
increases in the Respondent's pension contributions
for future contract years. These proposals repre-
sented increases on both wages and pensions. The
Respondent's letter also stated that other terms and
conditions were to remain as they had been under
the last contract.
In November 1979 the parties met again. Wages
were the primary topic. Neither side altered its po-
sition, with the Respondent pointing to a gloomy
economy as limiting its financial resources and the
Union adhering to its position that the Respondent
meet the area's Franchise Truck Dealers wage rate
as it had done in the past. No agreement was
reached. On January 21, 1980, the Respondent's
three employees—two partsmen and the mechan-
ic—began an economic strike.
On February 5, 1980, the parties met in the
office of a Federal mediator. The meeting lasted
only 7 minutes. The Respondent announced its ad-
herence to its previous offer, but without retroac-
tivity on wages and pension contributions. The Re-
spondent also stated that it wanted to eliminate the
union-security clause and that it intended to hire
permanent replacements for the striking employees.
With the Respondent's presentation of its positions,
the union representatives simply left the meeting
and went to the picket line to inform the strikers of
288 NLRB No. 46
388 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
these developments. Sometime in early February,
the "On Strike" message on the picket signs was
changed to "Unfair."
In early March, the Respondent hired three re-
placements to fill in for the two striking partsmen,
but allowed the mechanic's slot to remain unfilled.
On March 17, 1980, the Respondent filed an RM
petition, which it later withdrew. During April and
May 1980, the Union requested information for
bargaining, some of which the Respondent provid-
ed in June. Following the Union's unconditional
offer that the strikers return to work, the Respond-
ent agreed to place them on a preferential rehire
list. When the parties met for the last time on July
1, 1980, however, the Respondent informed the
Union that it had eliminated the mechanic's posi-
tion, that the partsmen positions were filled, and
that it had not changed its stance regarding the
elimination of the union-security provision.
The judge determined that the course of the par-
ties' negotiations reveals no evidence of bad faith
on the part of the Respondent before February 5.
Although noting that the Respondent had departed
from past practice by refusing to match area wage
standards, the judge found that the Respondent's
explanation for its position—the changing econom-
ic conditions and the reasonable (and, ultimately,
accurate) prediction that the industry was going to
be facing even greater fmancial difficulties in the
future—justified its break from past years on
wages. The judge, however, found that the events
of February 5 demonstrated an abrupt change in
tactics, marking the first evidence of the Respond-
ent's intent to frustrate meaningful bargaining. The
judge reasoned that while the Respondent's Febru-
ary 5 conduct alone might signify nothing more
than a permissibly hardened approach to bargain-
ing, its subsequent rigid insistence on the "predict-
ably unacceptable" elimination of the long-estab-
lished union-security provision reveals the Re-
spondent's unlawful predetermination not to reach
agreement. Accordingly, he concluded that the Re-
spondent's proposed withdrawal of the union-secu-
rity clause and retroactive pay and its subsequent
"refusal to bargain" over withdrawal of the union-
security clause violate Section 8(a)(5) of the Act.
We disagree.
Although the judge correctly notes that the to-
tality of conduct must be assessed before it can be
determined whether a party has engaged in bad-
faith or surface bargaining, 3 we believe the judge
3 The judge relied on Tomco Communications, 220 NLRB 636 (1975),
enf. denied 567 F.2d 871 (9th Cir. 1978). Although the court reversed the
Board's finding of a violation, it endorsed the Board's analysis that all the
relevant evidence must be considered. The court stated (567 F 2d at 883,
citing NLRB v. Stanislaus Implement Co., 226 F 2d 377, 381 (9th ,Cir,
1955)):
failed to give adequate consideration to all the rele-
vant circumstances of bargaining in reaching his
conclusion.
First, as noted above, during the 1979 bargaining
sessions there was give and take on both sides on a
variety of issues. No evidence of bad faith exists
from that stage of negotiations. Moreover, the evi-
dence also discloses valid economic reasons for the
Respondent's failure to adopt the area wage rate,
the biggest point of disagreement between the par-
ties. Following a period of 2 months in which no
contract talks took place, the Union began an eco-
nomic strike in late January 1980. It was only after
the Union took this hardened stance that the Re-
spondent, in turn, hardened its approach by main-
taining its position on economics, withdrawing ret-
roactive pay and pension contributions, proposing
an open shop through the elimination of the union-
security clause, and announcing its intention to
remain open during the strike by using replace-
ments.
The Respondent's economic outlook for its in-
dustry had not improved since it had first enunci-
ated to the Union its reasons for not being able to
accede to its money demands. In fact, the only per-
tinent intervening event between the time the Re-
spondent first announced its position on economics
and the February 5 meeting was the strike—a
matter that could only worsen the Respondent's al-
ready shaky fmancial condition. In these circum-
stances, the Respondent's decision to eliminate the
retroactive application of its wage and pension pro-
posals cannot fairly be characterized as regressive
or baseless, but rather it is a reasonable reaction to
the Union's exertion of increased economic pres-
sure by striking.
Regarding the Respondent's proposal to elimi-
nate union security as a condition of employment,
it should be noted that the existence of such a
clause in previous contracts does not by itself obli-
gate the parties to include it in successive con-
tracts. See, e.g., H. K Porter Co. V. NLRB, 397
U.S. 99 (1970); Frontier Dodge, 272 NLRB 722, 730
fn. 24 (1984); and American Thread Co., 274 NLRB
1112 (1985). By the same token, just as a party may
seek to change contract provisions previously
agreed to, a party may choose either to modify its
bargaining proposals during the course of negotia-
tions or to hold fast to them. As stated in Atlas
Metal Parts Co. v. NLRB:4
A state of nund such as good faith is not determined by a consid-
eration of events viewed separately. The picture is created by a con-
sideration of all the facts viewed as an integrated whole.
4 660 F.2d 304, 308 (7th Qr. 1981).
CHALLENGE—COOK BROS. 389
An employer is entitled to advance a posi-
tion sincerely held, notwithstanding the em-
ployer's having taken a different position at an
earlier time. . . . Union security . . . [is a]
mandatory [subject] of bargaining, and "[a]
party . . . is entitled to stand firm on a posi-
tion if he reasonably believes that it is fair and
proper or that he has sufficient bargaining
strength to force agreement by the other
party."
As the court there recognized, the bargaining proc-
ess is one characterized by displays of relative
strengths and strategic posturing. The parties are
free to adjust their positions in response to changes
occurring during negotiations. In this instance the
Respondent countered the Union's show of
strength (the strike) by reemphasizing and expand-
ing its previously announced economic position, by
seeking to curtail an aspect of the Union's strength
(the union-security clause), and by attempting to
strengthen its own hand by continuing operations
with replacement workers. These developments,
viewed in the context of the parties' entire bargain-
ing environment, do not, as the judge finds, reveal
an intent to frustrate agreement, but rather are rea-
sonable, if not predictable, reactions of manage-
ment facing difficult economic conditions and a
tough union counterpart. In these circumstances,
therefore, we find that the substance of the Re-
spondent's February 5 proposals does not establish
that the Respondent was engaging in regressive
bargaining.
In addition, we note that the conduct of the par-
ties during the February 5 meeting does not sub-
stantiate the judge's finding that the Respondent
was employing unlawful bargaining techniques.
The judge aptly notes that once the Respondent
announced its revised positions, the union repre-
sentatives did not try to discuss these issues or to
engage in negotiations over any other matters. In-
stead, the union team asked the Respondent for
clarification on the meaning of the proposals and,
on receiving the explanation, simply left the meet-
ing. No further questions or dialogue took place,
despite the fact that there is no evidence that such
an effort by the Union would have been futile. The
session ended with the union representatives
abruptly departing less than 10 minutes after its
start. What the Union was saying by its actions, if
not in words, was that it was remaining fixed to its
pre-February 5 positions. Clearly, both sides were
engaging in hard bargaining tactics, and not the
Respondent alone.
Finally, because the judge made his finding of
surface bargaining on a totality of conduct basis, he
also relies on the Respondent's subsequent adher-
ence to its proposal to delete the union-security
clause as indicative of a predisposition to thwart
agreement. As stated above, a party may stand firm
by a bargaining proposal legitimately proffered.
See Atlas Metal Parts Co. v. NLRB, supra; Atlanta
Hilton & Tower, 271 NLRB 1600, 1603 (1984), and
cases cited therein. In this case the General Coun-
sel has failed to adduce sufficient evidence to show
that the Respondent asserted its proposal disingen-
uously or was unwilling to discuss it with the
Union. There is also no evidence that in maintain-
ing its position on open shop that the Respondent
was motivated by bad faith or an intent to frustrate
agreement. See American Thread Co., supra. In-
stead, we fmd that the Respondent's adherence to
the elimination of union security was a reasonable
bargaining stance under all the circumstances. Ac-
cordingly, our analysis of the Respondent's post-
strike bargaining strategy provides no basis for
concluding that the Respondent violated its duty to
bargain in good faith.
H. WITHDRAWAL OF RECOGNITION FROM THE
UNION
We agree with the judge's determination that the
Respondent failed to establish a good-faith doubt
about the Union's continued majority and that its
withdrawal of recognition from the Union and re-
fusal to bargain and provide information violates
Section 8(a)(5) and (1). In reaching this conclusion,
however, we place no reliance on Pennco, Inc., 250
NLRB 717 (1980), and rely instead on the Board's
recent decision in Station KKHI, 284 NLRB 1339
(1987). In Station KKHI, the Board overruled
Pennco and the presumption that strike replacement
employees support the union in the same propor-
tion as the striking employees. The Board will no
longer make any presumption of replacement em-
ployees' support or nonsupport for the union, but
will require 'some further evidence of union non-
support' before concluding that an employer's
claim of good-faith doubt of the union's majority is
sufficient to rebut the overall presumption of con-
tinuing majority status."5
In Station KKHI, the employer's evidence of the
union's loss of majority consisted of its five re-
placement employees' regularly crossing the
union's picket line at a time when there were but
three remaining striking employees. The Board
found that neither their repeated crossings of the
picket line, nor the union's failure to contact the re-
placements during the strike, was sufficient to dem-
onstrate convincingly what the replacements' senti-
ments toward union representation were. Absent
'Station KKHI, supra.
390 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
other evidence of the replacements' preference, the
Board concluded that there was no basis for a
good-faith belief that the union lacked majority
support.
Similarly, in this case the only evidence of non-
support for the Union, other than the replacements'
daily crossing the picket line to report to work,
consists of tainted—and thereby unreliable—state-
ments from the Respondent's managers that the re-
placements opposed union representation. 8 In the
absence of any objective and reliable evidence,
therefore, we find no good-faith basis for the Re-
spondent's asserted belief that the Union failed to
enjoy majority support. In these circumstances, we
fmd that the Respondent's withdrawal of recogni-
tion and subsequent refusal and delay in providing
the Union with requested information violate Sec-
tion 8(a)(5) and (1) of the Act.
III. THE STRIKERS' REINSTATEMENT RIGHTS
Based on his finding that the Respondent en-
gaged in unlawful surface bargaining beginning
February 5, 1980, the judge concluded that the
economic strike begun January 21, 1980, was there-
by prolonged and converted into an unfair labor
practice strike. In section 4 of his decision, there-
fore, the judge provides for the reinstatement
rights of the strikers as unfair labor practice strik-
ers, that is, finding that they are entitled to rein-
statement to their former jobs as of the date of
their unconditional offer to return to work, May
23, 1980. This is so because he found that the strike
converted from an economic strike into an unfair
labor practice strike before the March 10, 1980
date by which the Respondent had hired perma-
nent replacements for striking partsmen Risso and
Effinger. As set forth above, we do not agree that
the Respondent's bargaining conduct during Febru-
ary was unlawful and, consequently, we do not
adopt his fmding that the strike became an unfair
labor practice strike prior to the hiring of replace-
ments. We agree, however, with the judge's find-
ings that the Respondent subsequently engaged in a
number of other unlawful activities that, together,
had the effect of converting the strike into an
unfair labor practice strike. Specifically, beginning
on March 17, 1980, as a result of its unlawful inter-
rogation of strike replacement applicants, the Re-
spondent refused to recognize the Union's contin-
ued majority status and withdrew recognition from
6 The Judge found, and we agree, that the response of the three re-
placements who were hired were tainted because they were given in a
coercive atmosphere, arising from the unlawful interrogations of these
employees concerning their union sympathies In such circumstances, as
noted by the Judge, an employer cannot rely on the results of its unfair
labor practice conduct to Justify its refusal to bargain with an incumbent
111110n
the Union as the representative of the employees.
Thereafter, the Respondent refused to bargain with
the Union, refused to provide the Union with infor-
mation it had requested for bargaining, and an-
nounced its retaliatory elimination of the position
of journeyman mechanic. These actions foreseeably
operated to prolong the strike. In light of these
fmdings, we differ with the judge only about the
date on which the strike converted to an unfair
labor practice strike.
Because we find that the strike did not convert
until after the replacements for the striking parts-
men were hired, we adopt the judge's alternative
reinstatement remedy, which provides that the two
partsmen were entitled only to preferential rehiring
as of the date of their unconditional offer to return.
It is undisputed, however, that the Respondent
failed to rehire the partsmen when openings in
their positions arose in February 1981. Therefore,
we find that Risso and Effinger are entitled to rein-
statement as of that time. Because no replacement
was hired for the mechanic, we also adopt the
judge's additional finding that Lovett is entitled to
reinstatement to his position as of his May 23, 1980
unconditional offer to return. 7 Accordingly, the
judge's remedy is modified to provide that Risso
and Effinger be offered reinstatement to their
former positions as partsmen or, if such positions
no longer exist, to substantially equivalent posi-
tions, without prejudice to their seniority or other
rights, dismissing, if necessary, any employees
hired after February 1981 to replace them. The Re-
spondent will make them whole for any loss of pay
they suffered by reasons of its refusal to reinstate
them as of February 1981, 8 computed in the
manner prescribed in F. W Woolworth Co., 90
NLRB 289 (1950), with interest to be computed in
the manner prescribed in New Horizons for the Re-
tarded, 283 NLRB 1173 (1987). 9 Lovett is to be of-
fered reinstatement to his position as mechanic, and
backpay is to be computed as of May 23, 1980, in
the manner described above.
7 We note that even if the strike were not found to have converted to
an unfair labor practice strike the reinstatement rights of the strikers
would not be affected.
8 Deternunation of the precise dates in February 1981 on which Risso
and Effinger should have been reinstated is left to the compliance stage
of this proceeding.
9 In accordance with our decision m New Horizons for the Retarded,
283 NLRB 1173 (1987), interest on and after January 1, 1987, shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 U.S.C. § 6621. Interest on
amounts accrued prior to January 1, 1987 (the effective date of the 1986
amendment to 26 U.S.0 § 6621), shall be computed in accordance with
Florida Steel Corp., 231 NLRB 651 (1977).
CHALLENGE-COOK BROS. 391
AMENDED CONCLUSIONS OF LAW
1. In Conclusion of Law 6, delete subparagraph
(a) and reletter subparagraphs (b), (c), and (d) as
(a), (b), and (c), respectively.
2. In Conclusion of Law 7, substitute "March 17,
1980" for "February 5, 1980",
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Cook Brothers Enterprises, Inc., d/bia
Challenge-Cook Brothers, Oakland, California, its
officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 2(b).
"(b) Offer Clarence Lovett, Larry Risso, and
Gordon Effinger immediate and full reinstatement
to their former jobs or, if such positions no longer
exist, to substantially equivalent positions, without
prejudice to their seniority or other rights and
privileges previously enjoyed, discharging, if neces-
sary, any partsmen replacements hired after Febru-
ary 1981, and make such employees whole for any
loss of earnings resulting from its failure properly
to reinstate them in the manner set forth in the sec-
tion of this decision entitled 'The Strikers' Rein-
statement Rights."
2. Substitute the following for paragraph 2(c).
"(c) Open its service department at the Oakland
site, restoring the mechanical work to the bargain-
ing unit."
3. Substitute the attached notice for that of the
administrative law judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these
rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT interrogate our applicants for em-
ployment concerning their union sympathies.
WE WILL NOT refuse to recognize and bargain
collectively in good faith with the Machinists
Automotive Trades, District Lodge No. 190 of
Northern California, affiliated with International
Association of Machinists and Aerospace Workers,
AFL-CIO as the exclusive bargaining agent in the
following appropriate unit:
All journeymen, general mechanics, field serv-
ice employees, trainee mechanics, helpers,
parts employees, apprentices, garage employ-
ees, assemblers, maintenance and custodial em-,
ployees employed by Respondent at its place
of business located at 7101 San Leandro
Street, Oakland, California; excluding profes-
sional employees, truck sales, office clerical
employees, guards, and supervisors as defined
in the Act.
WE WILL NOT refuse or delay to supply the
Union with necessary and relevant bargaining in-
formation it has requested.
WE WILL NOT unilaterally make or effect any
changes in the working conditions of the bargain-
ing unit, by eliminating a unit position, without
first giving notice to the Union, the collective-bar-
gaining representative and affording such repre-
sentative an opportunity to bargain collectively re-
garding such change.
WE WILL NOT eliminate bargaining unit work or
pay customers to perform the bargaining unit
work, because of the union activities of our em-
ployees.
WE WILL NOT refuse to reinstate employees or
otherwise discriminate against our employees, be-
cause of their union activities.
WE WILL NOT discourage membership in the
above-named Union, or in any other labor organi-
zation, by refusing to reinstate unfair labor practice
strikers upon their unconditional request.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain collectively in
good faith with the Machinists Automotive Trades,
District Lodge No. 190 of Northern California, af-
filiated with International Association of Machin-
ists and Aerospace Workers, AFL-CIO, as the ex-
clusive bargaining representative of the employees
in the appropriate unit described above, concerning
rates of pay, wages, hours, or other terms and con-
ditions of employment and provide relevant and es-
sential information when requested by the Union
and, if an agreement is reached, embody it in a
signed contract.
392 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL offer Clarence Lovett, Larry Risso,
and Gordon Effmger immediate and full reinstate-
ment to their former jobs or, if such positions no
longer exist, to substantially equivalent positions,'
without prejudice to their seniority or other rights
and privileges previously enjoyed, discharging, if
necessary, any partsmen replacements hired after
February 1981, and make such employees whole
for any loss of earnings resulting from our failure
to reinstate them with interest.
WE WILL open our service department at the
Oakland site and restore the lost mechanical work
to the bargaining unit.
FINDINGS OF FACT
I. JURISDICTION
The Respondent admits that it is a California corpora-
tion, with an office and a place of business in Oakland,
California, engaged in the nonretail sales and service of
construction equipment. During the last 12 months, Re-
spondent, in the course and conduct of its business oper-
ations, sold and shipped goods or services valued in
excess of $50,000 directly to customers located outside
the State of California. The complaint alleges, the Re-
spondent admits, and I find that the Respondent is an
employer engaged in commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
II. LABOR ORGANIZATION
COOK BROTHERS ENTERPRISES, INC.,
D/B/A CHALLENGE-COOK BROTHERS
Marcia .1. Canning, Esq., for the General Counsel.
George B. Smith, Esq. (Constangy, Brooks & Smith), of
Atlanta, Georgia, for the Respondent.
Burton F. Boltuch, Esq. (Beeson, Tayer, Kovach & Silbert),
of San Francisco, California, for the Charging Party.
DECISION
n
STATEMENT OF THE CASE
DAVID P. McDoNALD, Administrative Law Judge.
This case was tried before me at Oakland, California, on
March 31 and April 1, 1981, 1 pursuant to a complaint
issued by the Regional Director for the National Labor
Relations Board for Region 32 on October 16, and subse-
quently amended on March 18 and April 1, 1981, 2 which
was based on a charge filed on July 28 by the Machinists
Automotive Trades, District Lodge No. 190 of Northern
California, affiliated with International Association of
Machinists and Aerospace Workers, AFL-CIO (the
Union). In general the complaint alleges that Cook
Brothers Enterprises, Inc., d/b/a Challenge—Cook
Brothers (the Respondent or the Company), has engaged
in certain violations of Section 8(a)(1), (3), and (5) of the
National Labor Relations Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, to argue orally, and to file briefs. Since
the close of the hearing, briefs have been received from
all parties.
On the entire record, my observation of the witnesses,
and the consideration of the submitted briefs, I make the
following
All dates are in 1980 unless otherwise stated.
2 During the hearing the General Counsel was allowed to amend the
complaint to allege that Gary Morris was a statutory supervisor, to
which the Respondent admitted in an oral stipulation and further alleged
that on "approximately 50 separate occasions between February 1, 1980
and March 10, 1980 the Respondent by Morris had unlawfully interrogat-
ed job applicants regarding their union sympathies and activities," m vio-
lation of Sec. 8(aX1) of the Act
The Union is a labor organization within the meaning
of Section 2(5) of the Act.
in. THE ALLEGED UNFAIR LABOR PRACTICES
A. Issues
The primary issues are whether the Respondent violat-
ed
1. Section 8(a)(1) of the Act by unlawfully interrogat-
ing job applicants regarding their union sympathies and
activities.
2. Section 8(a)(3) and (1) by its elimination of the posi-
tion of journeyman mechanic and its failure and refusal
to reinstate three allegedly unfair labor practice strikers
to their former positions after the Union made valid un-
conditional offers to return to work.
3. Section 8(a)(5) and (1) by making regressive propos-
als: withdrawing previously agreed-to provisions on
union security and retroactivity; withdrawing recogni-
tion of the Union as the exclusive collective-bargaining
representative at a time when it allegedly lacked objec-
tive considerations to believe the Union no longer repre-
sented a majority of its employees; refusing to meet, bar-
gain, and supply relevant information requested and
needed by the Union in its role as the exclusive repre-
sentative of its employees; and eliminating the position of
journeyman mechanic without notice or bargaining with
the Union.
B. The Facts
1. Background
The Respondent is primarily engaged in the manufac-
ture of cement mixers at its plants in Ohio, Georgia, and
Industry, California. It also operates a sales office in
Oakland, California, where it maintains a parts and serv-
ice department to service mixers on both a warranty and
nonwarranty basis. Prior to January 21, the Respondent
employed Larry Risso and Gordon Effmger as partsmen,
and Clarence Lovett as journeyman mechanic.
The parties stipulated that the Respondent and the
Union have had a collective-bargaining relationship since
at least 1965. The Union's business representative, Rich-
ard Harold Spencer, inspected all former collective-bar-
gaining agreements between the parties and discovered
CHALLENGE—COOK BROS. 393
they extended back to the 1940s, with the Union acting
as the exclusive collective-bargaining representative of
certain employees of the Respondent. Each successive
collective-bargaining agreement, from the 1940, to the
most recent, of which was effective from September 1,
1976, to September 1, 1979, contained a union shop
union-security clause. In fact, the Respondent had never
proposed the elimination of this clause until February 5,
1980. At the trial it was stipulated that the Respondent
has union shop union-security provisions in all of its cur-
rent contracts at its other plants in Georgia, Ohio, and
Industry, California. The Ohio plant previously had a
maintenance-of-membership union-security provision,
which was changed to a union shop form of union secu-
rity in the current contract. Until the 1979 bargaining
sessions, the Company had traditionally accepted the
East Bay Area wage rate schedules, with occasional
fringe benefits modifications.
2. Negotiations
The Company and the Union met on six occasions for
the purpose of negotiating a new collective-bargaining
agreement: September 19, October 2 and 19, and Novem-
ber 15, 1979, and February 5 and July 1, 1980, Oyvind
Frock, Respondent's director of industrial relations, rep-
resented the Company at all the sessions and was assisted
by Gary Morris. Richard Spencer, a union business rep-
resentative, was the only individual to represent the
Union at the first three sessions. Subsequently, Michael J.
Day, the Union's area director, became the Union's chief
negotiator at the remaining sessions, and James Edwards,
a union business representative, was present during the
February 5 meeting.
The ,first session, on September 19, 1979, began with
Spencer presenting the Union's opening proposal. It was
admittedly an inflated package including increased vaca-
tion schedules, additional holidays, vision care, retiree
health and welfare, and a $75-per-month increase in pen-
sion contributions. As in the past, the goal of the Union
was to secure the area wage settlement, which had al-
ready been reached with the Franchise Truck Dealers. It
called for a $3.40 hourly wage increase over the next 3
years.
The Company presented its counterproposal at the
next session on October 2, 1979,'7 which was below the
area wage rate. The Union did not change its original
proposal. Spencer testified that at one of their meetings
he told Frock that the Union would like to maintain the
area rates and conditions. Both Frock and Spencer left
the October 2 meeting with the feeling that eventually
they would arrive at the area wage rate.
Early in October 1979, the Federal Reserve Board an-
nounced its decision to tighten the money supply and
thus raise interest rates. The Respondent's business is di-
rectly tied to the construction industry. The Company
reevaluated the prevailing business conditions and the ap-
proaching economic climate and concluded the Federal
Reserve policy would have a significant adverse impact
on the building industry and its own profits. Based on
this evaluation the Company concluded that it could no
longer fmancially afford to accept the area wage rates.
At the October 19 sesssion, Frock's announcement that
the Respondent could not meet the area wage rate total-
ly shocked Spencer. Frock had explained to the Union,
with a great deal of detail, that due to the economy, the
Federal Reserve Board's action, and the pending slump
in the construction business, the Company could not
afford to pay the area wage rate. Spencer testified the
Union accepted the Respondent's counterpension propos-
al of $20 per year and dropped its demands for vision
care, retiree health and welfare, additional holidays, and
increased vacations. The Union never again raised these
issues in subsequent sessions.
In response to the Union's request, Frock restated the
Company's October 19, 1979 final offer in his letter of
October 26, 1979. It provided a 3-year contract from
September 1, 1979, to September 1, 1982; a $1-per-hour
retroactive increase to September 1, 1979, and an addi-
tional wage increase of 60 cents and 50 cents per hour
for each succeeding year; a $20 monthly increase in the
pension contribution retroactive to September 1, 1979,
and an additional $20 increase per month for each suc-
ceeding year of the contract. Frock's letter also con-
tained a list of agreed changes and concluded with the
sentence: "All other terms and conditions of the 1976-
1979 agreement were to remain unchanged." The letter
did not make reference to the Union's initial demand for
vision care, retiree health and welfare, increased vaca-
tions, or the union-security clause. This letter did repre-
sent a 10-cent-per-hour increase in wages and an increase
in the Company's contribution to the pension fund.
Michael Day, area director for the Union, became the
chief negotiator and was actively involved in the negoti-
ations at the November 15, 1979 session. That meeting
dealt mainly with wages, with neither side changing
their positions. The Respondent stated that, based on the
economic forecast, it could not financially afford to meet
the area rates. Day's goal remained unchanged. The
Union wanted the Franchise Truck Dealers' agreed
wage. He showed Frock a copy of the Franchise Truck
Dealers' final settlement. Frock recalled that Day said,
"We're in a box that we have these area rates that we
have to maintain."
The three employees of the unit initiated an economic
strike against the Respondent on January 21. The two
partsmen, Risso and Effinger, testified they struck in re-
sponse to the Company's final offer.
Day and Edwards, representing the Union, and Frock
and Morris, representing the Company, met for the next
session at the Federal mediator's office in San Francisco
on February 5. The entire meeting lasted only 7 minutes.
Frock announced that the Company had not changed its
prior final offer, except that the Company was with-
drawing the retroactive portion of the wage and pension
agreements, it intended to hire permanent replacements
for the strikers, and it wanted an open shop. Frock testi-
fied that he did not propose an open shop, but a modifi-
cation that would not require the permanent replace-
ments to join the Union. Al. the beginning of the hearing,
all parties stipulated to the following:
Six, it is stipulated that prior to the strike, during
the negotiation session of 1979, Challenge—Cook
Brothers, Inc. made no mention of proposing an
394 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
open shop and/or eliminating the union-security
provision.
Seven, it is stipulated that at the first bargaining
session held in 1980—which was on February 5,
1980—Challenge—Cook Brothers, Inc. withdrew its
proposal that wage increases would be retroactive
to the expiration date of the prior contract, and that
it proposed at this meeting that the union-security
provision be eliminated and that the facility be an
open shop.
Day was upset by the proposed elimination of the union-
security clause and felt he never had an opportunity "to
negotiate their position on wages.
Immediately after the February meeting, Day and Ed-
wards proceeded to the picket line where Day informed
Risso and Effinger of the latest developments. The strik-
ers kept each other informed and had relayed the infor-
mation to any striker who was not present. Risso testi-
fied that even if the Respondent had met their wage de-
mands, he would not have given up their strike if it
meant accepting and open shop.
The original picket signs stated "On Strike." However,
at some point the signs were changed to read "Unfair."
The various witnesses were able to agree when the
change was made. Edwards believed it was after the
February 5 meeting. Spencer was of the belief that the
"Unfair" sign was raised after an unfair labor practice
charge was filed on February 1 and taken down when
the charge was dismissed on March 10. The "Unfair"
signs again reappeared at an unknown date and have re-
mained. Spencer testified that the word "Unfair" was
added because of the Respondent's unfair labor practices,
including the deletion of the mechanic's position and the
regressive proposals such as the open shop and the elimi-
nation of the union-security clause.
3. RM petition
The Respondent placed advertisements in the local
newspapers for the position of partsmen. The ad indicat-
ed that a labor dispute was in progress. When the appli-
cants arrived it was necessary for them to cross the
picket line to file their applications. Approximately 50 in-
dividuals responded to the advertisement. Gary Morris
interviewed each applicant, over a period of 2 to 3
weeks, and asked them how they felt about unions, were
they for or against them, and would they cross the
picket line if they received the job. 3 Morris indicated the
purpose of his question, concerning the picket line, was
to be certain if they hired an individual he would not be
afraid to cross the line and would return to work each
day. All the applicants stated they would cross the
picket line and none indicated they were prounion. The
record is not clear if the questions concerning unions
were general or referred specifically to the Machinists
Union.4 Morris made the final decision to hire Andrew
3 Gary Morris was the Respondent's parts and service manager.
4 Frock had instructed Moms to ask each applicant if they would
cross the picket line and what were their feelings toward unions
Burnett, Kelly Thacker, and David Jenkins, but only
after he conferred with Holloway and Frock. Morris
stated his selection of these three men was based on their
experience and qualifications.
While interviewing Thacker, Morris asked him if he
was a member of a union, would he cross the picket line,
and was he for or against unions. Thacker replied that he
was against unions. Although he was presently a member
of a union, he wanted to withdraw and take a nonunion
position. Bumett's recollection was slightly different. He
recalled that he was interviewed separately on the same
day by both Morris and Holloway. 3 They both informed
him of the working conditions and benefits, and that
there was a strike in progress. Someone also told him
that there may be some type of vote on the Union. Since
he had answered an ad that mentioned that there was a
labor dispute in progress and he crossed the picket line
to apply for the job, Thacker felt it was obvious he was
willing to cross the picket line and did not favor unions.
However, he could not recall making any statement con-
cerning unions during the interview and remarked, "I am
very definitely antiunion, and I'd stand on my soapbox if
somebody got me started."
Morris asked Burnett the same questions that he had
asked Thacker. Burnett also expressed his dislike for
unions in general and his willingness to cross the picket
live. Morris could not fully recall the interview with Jen-
kins, nor the latter's responses.
After the interviews were completed, Morris informed
Holloway that these men did not want a union. When
they were hired on March 3, 4, and 10, Holloway in-
structed Morris to send each new man to his office.
Holloway stated these meetings were not interviews be-
cause they had already been hired. He was simply fol-
lowing established policy of welcoming new employees
and explaining to them the working conditions and bene-
fits. When he mentioned the existence of the strike, they
all responded that they did not wish to be represented by
a union. Holloway could not recall if the men specifical-
ly mentioned the Machinists Union. Based on the infor-
mation he received directly from these three permanent
partsmen replacements, Holloway dictated and signed
the following statement on March 10, 1980:
I am now and since July 1973 have been Branch
Manger of Challenge—Cook Bros. Sales & Service,
Northern California Division.
Within the past three weeks David Jenkins,
Trainee Parts Technician, Kelly Thacker, Trainee
Parts Technician, and Andrew Burnett, Trainee
Parts Technician, have informed me they do not
wish to be represented by the Machinists Union.
Except for the change in his job position, Morris signed
an identical document, which he thought was prepared
by Frock. 6 Morris insisted that although he did not pre-
5 William E. Holloway was the branch manager for the Respondent at
the Northern California division, Oakland, California.
6 Frock testified that he and their labor attorney suggested the word-
ing, but Moms and Holloway were to use the wording only if it fit the
circumstances.
CHALLENGE—COOK BROS. 395
pare the statement, it was true and based on information
he received from each trainee during their interviews.
On March 17, 1980, the Respondent filed an RM peti-
tion at the National Labor Relations Board based on ob-
jective considerations that the Machinists no longer rep-
resented a majority of their employees. Frock testified
that the above statements signed by Holloway and
Morris were the only objective considerations that the
Respondent relied on to support the RM petition.
The RM hearing was held on April 11 and during a
recess Spencer approached Frock and asked if they
could not get back to the bargaining table without pro-
ceeding through the hearing and election process. Frock
expressed a willingness to return to the bargaining table,
but indicated the Company's position on the open shop
and preferential hiring had not changed. Since the
Union's policy is to not sign an open-shop contract,
Spencer felt that Frock's response ended any chance of
returning to the bargaining table at that time. This con-
versation was followed by a letter from the Union's at-
torney, dated April 22, 1980, to the Respondent. The
letter requested that "the Company immediately recom-
mence collective bargaining sessions and commence bar-
gaining in good faith." In addition the letter requested
that the Company supply information that the Union felt
it needed to adequately perform its duties as the bargain-
ing representative of the employees. In his letter of April
25, Frock responded in part:
Due to the pendency of the decertification elec-
tion and the existence of objective considerations
that the Machinists no longer represent a majority
of our employees, we see no point in attempting to
negotiate a new contract until the decertification
issue is settled.
Regarding your request for various and sundry
records and documents, we do not understand how
these relate to the bargaining process and request
you specify in what way this information does
relate to the bargaining process.
The union attorney renewed their request for informa-
tion in his letter of April 28. The Company did not re-
spond. After the RM hearing was held and prior to the
scheduled election, the Respondent withdrew its RM pe-
tition near the end of May. Again through its attorney,
in a letter dated May 23, the Union repeated its request
for the Respondent to meet and provide the previously
requested information. In addition the letter stated:
Second: On behalf of the three employees pres-
ently on strike, this is to Inform you that the em-
ployees hereby make an unconditional offer to
return to work.
The Company responded through its attorney, Erwin
Lerten, in a letter dated June 2. The Respondent agreed
to furnish part of the requested information and indicated
by reference to paragraph E of the Union's May 23 letter
that at that time there were no openings for the positions
of "journeyman general mechanic, field serviceman,
tramee mechanic, helper, parts employee, apprentice
gal age employee, maintenance and custodial employee
and assembler." Because Lerten stated there were no
openings due to the employment of permanent replace-
ments, the Respondent indicated the strikers would "be
placed on a preferential hiring list and, in the event that
any openings become available for which they are quali-
fied, they will by recalled to work in accordance with
their seniority." The Company followed this letter by
correspondence to the Union from Frock dated June 4,
which confirmed a date to resume bargaining and pro-
vided some of the information requested by the Union.
4. Final negotiation session
The parties were unable to meet on June 4, therefore
the session was rescheduled for July 1. The final meeting
was very short. Day wanted to know if there was any
work for the strikers. Frock explained that there were no
openings for the partsmen because they had hired perma-
nent replacements, and there was no mechanical work
available and none for the foreseeable future. Prior to the
strike the Company did not have any plans to eliminate
the position of mechanic, although the need for mechan-
ics had declined in ,recent years. In February 1979, the
Respondent was forced to lay off three of the four jour-
neymen mechanics due to lack of work. After the strike
began the Respondent made no effort to replace the me-
Clinic, because they felt it was an impossible task to find
a qualified mechanic who would cross the picket line in
the Oakland area. As a result, the Respondent informed
their customers that the Company would not be able to
perform mechanical work during the strike. Most of the
customers maintained their own shops and were able to
do their own work. If the mixer was still under warran-
ty, the Respondent paid for the work. At the beginning
of the strike there were approximately 30 mixers under
warranty. As the construction business continued to
suffer, fewer mixers were purchased and, by July, there
were only 10 mixers under warranty. Since there was no
movement in the positions of either side, the session was
very short. The Union asserts that it was prevented from
further negotiating wage changes because the Company
was adamant on the issue of an open shop and the elimi-
nation of the union-security clause from the contract.
C. Analysis and Conclusion
1. Interrogation of job applicants
During the interviews of the 50 applicants, Morris fol-
lowed Frock's instructions and asked the individuals if
they received the job,, would they cross the picket line,
how did they feel toward unions, and were they for or
against unions. Prior to Morris' testimony, the General
Counsel had been unaware of the nature of the Respond-
ent's questions to the job applicants. At the conculusion
of Morris' testimony the General Counsel moved to
amend the complaint by adding an allegation of unlawful
interrogation of job applicants in violation of Section
8(a)(1) of the Act.
The Respondent opposed the amendment arguing that
the new allegation was totally unrelated to the substance
and pattern of the original charge and was thus beyond
the 10(b) period. The original charge was filed on July
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
28, 1980, and alleged that Respondent had violated Sec-
tion 8(a)(1), (3), and (5) of the Act:
1. By engaging in regressive and bad-faith collec-
tive-bargaining and at times refusing to bargain at
all.
2. By failing and refusing to discuss or negotiate
concerning the reinstatement of and refusing to re-
instate one or more of the striking unfair labor prac-
tice strikers.
3. Failing and refusing to provide relevant infor-
mation to the exclusive bargaining representative of
the employees.
4. By unilaterally, and without notice to the
Union (the exclusive bargaining representative)
making changes in wages, hours, and working con-
ditions and substituting new benefit. Said changes
and substitutions were done to discourage union ac-
tivity.
5. By failing and refusing to adequately notify the
Union and failing to discuss the decision and effects
of the decision to eliminate journeyman mechanical
work.
By the above and other acts, the above-named
employer has interfered with, restrained, and co-
erced employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
The complaint was issued on October 16, 1980, and
amended on March 18, 1981, generally alleging the con-
duct encompassed in the above charge. In addition the
complaint contained the following allegation:7
9(b) On or about March 17, 1980, and again on
April 25, 1980, Respondent withdrew recognition of
the Union and/or refused to bargain with the Union
as the exclusive collective bargaining agent of the
employees in the unit described above in paragraph
5, at a time during which it did not possess objec-
tive consideration's to believe that the Union no
longer represented a majority of the employees in
the aforementioned unit.
The General Counsel's motion to amend was granted
and the Respondent was given an opportunity to contin-
ue the case in order to have adequate time to investigate
and prepare its defense. The Respondent did not request
a continuance. The facts surrounding the amended alle-
gations were fully litigated.
In R. J. Causey Construction Co., 241 NLRB 1096
(1979), the original charge and complaint specifically al-
leged that the Respondent violated Section 8(a)(3) and
(1) of the Act by discharging Castiglione, an employee,
for engaging in union and/or other activities protected
under the Act. The administrative law judge allowed the
General Counsel, at the last minute of the trial, to amend
by alleging that the Respondent violated Section 8(a)(5)
by refusing to make benefit payments for Castiglione
during his employment as an apprentice carpenter. The
Board found that the facts surrounding the amendment
7 Par. 9(b) was in the ongmal complaint The italicized portions were
added in the amendment filed on March 18, 1981
were not related to the facts surrounding the allegations
in the original charge. Thus, the original charge did not
apprise RespondentS of the factual matter on which the
amendment to the complaint was predicated. Therefore
the judge erred in granting the motion to amend. In
reaching this conclusion, the Board stated that the "rules
regarding the requisite relationship as to both timeliness
and subject matter of a proposed amendment to a com-
plaint to the original charge have been succinctly articu-
lated by the United States Court of Appeals for the
Second Circuit."
(1) A complaint, as distinguished from a charge,
need not be filed and serviced within the six
months. (2) If a charge was filed and served within
six months after the violations alleged in the charge,
the complaint (or amended complaint), although
filed after the six months, may allege violations not
alleged in the charge if (a) they are closely related
to the violations named in the charge, and (b) [they]
occurred within six months before the filing of the
charge. 2
2 NLRB V. anion Coil Company, Inc., 201 F.2d 484, 491 (1952),
cited with approval in Laborers International Union of North Amer-
ica, Local No 282, AFL-CIO (Millstone Construction Company),
236 NLRB 621 (1978).
In the instant case, the alleged unlawful interrogations
occurred in early March, which was within the 6-month
period before the filing of the charge. The original
charge and complaint specifically alleged that the Re-
spondent violated Section 8(a)(1), (3), and (5) of the Act.
The amendment, which was filed during the hearing, al-
leges an independent 8(a)(1) violation by unlawfully in-
terrogating job applicants about their union sympathies.
The original charge in this proceeding alleges, inter alia,
that by "the above and other acts," Respondent has
interfered with, restrained, and coerced employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The Board has held that the printed catchall language in
the charge is adequate and sufficient to support the par-
ticularized allegations of interference, restraint, and coer-
cion contained in the complaint. Niagara Falls Memorial
Medical Center, 236 NLRB 342 (1978); Benner Glass Co.,
209 NLRB 686, 687 (1974); and Texas Industries v.
NLRB, 336 F.2d 128 (5th Cir. 1964). In addition, I find
that the facts alleged in this amendment are closely relat-
ed to the facts alleged in paragraph 1 of the charge and
paragraph 9(b) of the complaint. Paragraph 1 of the
charge alleges that at times the Respondent refused to
bargain at all, and paragraph 9(b) asserts that the Re-
spondent "did not possess objective considerations to be-
lieve that the Union no longer represented a majority of
the employees in the aforementioned unit." The Re-
spondent refused to bargain after it filed an RM petition
and admitted it based its objective considerations on the
information it obtained from the job interviews of David
Jenkins, Kelly Thacker, and Andrew Burnett. These
same interviews form the basis for the General Counsel's
amendment alleging unlawful interrogation of job appli-
cations. Accordingly, I find this amendment was not
CHALLENGE—COOK BROS. 397
barred by the 6-month limitation period as set out in Sec-
tion 10(b) of the Act.
Morris freely admitted that he followed Frock's in-
structions and asked each job applicant the same basic
questions. The Respondent argues that the thrust of
Morris' questions are not to determine the applicants'
union membership, but rather their willingness to report
to work when it required the crossing of a picket line. In
support of this position, the Respondent cites W A.
Sheaffer Pen Co., 199 NLRB 242 (1972), enfd. 486 F.2d
180 (8th Cir. 1973), for the proposition that:
The Board has never privileged the interrogation
of applicants concerning their willingness to cross a
picket line except in situations where a strike was in
progress.5
5 Roadhome Construction Corp , 170 NLRB 668, 674
In both of these cases the individuals questioned were
employees and not job applicants. In the Sheaffer case
the employees were polled 6 weeks before the expiration
of their contract. The Board found under those circum-
stances the employer had violated Section 8(a)(1) of the
Act. The Roadhome case also differs from the instant
case, since the interrogation was extremely limited. On
the first morning of the strike,, the employer and its su-
perintendent knew that some of the men had not signed
authorization cards The superintendent approached a
group of strikers and asked if any of the employees who
had not signed the cards were there. It was the superin-
tendent's responsibility to start the job and the purpose
of his question was simply to determine who was avail-
able for work. Morris' interrogation of job applicants
went far beyond determining the willingness of job appli-
cants to cross a picket line to work. If that were the sole
intended purpose of his question, then there was no
reason for him to make such an inquiry. Approximately
50 applicants responded to the Respondent's newspaper
ad, which indicated there was a labor dispute in progress
and, on their arrival, the applicants observed that it was
necessary for them to cross the picket line to submit an
application. Obviously, the purpose of Morris' inquiry
went beyond a mere determination of a fact that was al-
ready obvious by the presence of the 50 job applicants.
When interrogation takes place in the context of job
interviews, the Board has found that such interrogations
are "inherently coercive." Bighorn Beverage, 236 NLRB
736, 751 (1978), enfg. 614 F.2d 1238, 1241 (9th Cir.
1980). The Ninth Circuit found that Maykuth, the presi-
dent of Bighorn:
used the employment application forms in the inter-
views and questioned each worker that he subse-
quently hired about his union sympathies. In addi-
tion, there was his statement that refusal to cross a
picket line would not be an excuse for failing to de-
liver to customers. Therefore, "Wile question in this
case carried with it the inherent implication that the
answer given would have affected the applicants'
chances of employment." W. A. Sheaffer Pen Co. v.
NLRB, [486] Fld 180, 182 (8th Cir. 1973). Despite
the inherently coercive impact of the questions con-
cerning union membership, Maykuth took no steps
to alleviate it. We, therefore, find that the use of the
employment forms and the questioning concerning
union membership support the Board's findings that
respondent violated Section 8, supra.
In Clear Pine Mouldings R NLRB, 632 F.2d 721 (1980),
the Ninth Circuit granted enforcement of the Board's
Order and found that although the manager's question
may have been vague, they supported the conclusion
that the questions carried the clear implication that the
answer given by the job applicant affected his chances of
employment. The absence of direct threats by the com-
pany does not alter the conclusion that when a personnel
manager asks questions concerning the applicant's union
sympathies, an inferred coercion exists.5
In the instant case, Morris' questions were not vague.
The Respondent wanted to know what the applicants'
union sympathies were. The record is void of any evi-
dence that would provide any reasonable explanation
about how the questions had a legitimate purpose. Obvi-
ously, a job interviewee will consider seriously the ques-
tions that are asked of him. As previously noted, inquir-
ies concerning union sympathies are inherently coercive.
Bighorn Beverage, supra. Morris made no attempt to di-,. .mmish the apprehension his remarks may have made
with the 50 applicants.
Of the three permanent strike replacements, only
Andrew Burnett appeared at the hearing. He testified
that he did not recall Morris asking him questions con-
cerning his union sympathies. With considerable convic-
tion, Burnett testified that he was very definitely antiun-
ion and he would stand on his "soapbox if someone got
him started." I credit Burnett's assertions and find that,
in reference to Burnett, he was not coerced by Morris'
question. This finding, however, is limited to Burnett.
The fact that he was not coerced does not take away
from the coercive nature of the interrogations of the re-
maining job applicants. Having considered all the sur-
rounding circumstances, I find the interrogation by
Morris of the remaining job applicants, including David
Jenkins and Kelly Thacker, during their job interviews
was coercive and therefore a violation of Section 8(a)(1)
of the Act.
2. Alleged bad-faith bargaining
The complaint alleges that the Respondent violated
Section 8(a)(5) of the Act by refusing to provide relevant
information requested by the Union, making regressive
proposals by withdrawing previously agreed-to clauses
for union security and retroactive wage benefits, refusing
to meet or bargain with the Union, withdrawing recogni-
tion of the Union as the exclusive collective-bargaining
agent for the unit employees, and eliminating a unit posi-
tion of journeyman mechanic without prior notification
to or bargaining with the Union. It is the position of the
General Counsel and Charging Party that the Respond-
8 The Respondent's reliance on Penasquitos Village v. NLRB, 565 F.2d
1074 (9th Cir 1977), is misplaced inasmuch as the interrogation in that
case was of employees, not job applicants.
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ent, by its conduct and actions, engaged in bad-faith bar-
gaining. It is well established that in determining wheth-
er a party has bargained in good or bad faith it is neces-
sary to examine the totality of all the events and sur-
rounding circumstances. NLRB v. Pacific Grinding Wheel
Co., 572 F.2d 1343 (9th Cir. 1978); J. P. Stevens & Co. v.
NLRB, 623 F.2d 322, 326 (4th Cir. 1980), and Queen
Mary Restaurants Corp. v. NLRB, 560 F.2d 403 (9th Cir.
1977). Viewed separately, the actions of a party may be
construed as acceptable hard bargaining. When viewed
together, however, those same actions may reflect an un-
willingness or failure to bargain in good faith as required
by Section 8(d) of the Act:
to bargain collectively is the performance of the
mutual obligation of the employer and the repre-
sentative of the employees to meet at reasonable
times and confer in good faith with respect to
wages, hours, and other terms and conditions of em-
ployment . . . but such obligation does not compel
either party to agree to a proposal or require the
making of a concession.
The Supreme Court discussed the effect of Section 8(d)
and concluded it was "clear that the Board may not,
either directly or indirectly compel concessions or other-
wise sit in judgment upon the substantive terms of col=
lective bargaining agreements." NLRB v. American Na-
tional Insurance Co., 343 U.S. 395, 404 (1952). In H. K
Porter Co., 397 U.S. 99, 107 (1970), the Supreme Court
further held, "It is implicit in the entire structure of the
Act that the Board acts to oversee and referee the proc-
ess of collective bargaining, leaving the results of the
contest to the bargaining strengths of the parties." Thus,
the Board has power under the Act to require employer
and employees to negotiate in good faith, it does not
have the power to compel either party to agree to any
substantive contractual provision of a collective-bargain-
ing agreement.
a. Regressive bargaining
A review of the history of past collective bargaining
between the Respondent and the Union reveals that ulti-
mately the wage differences were settled on terms com-
parable to the area standards found in the Franchise
Truck Dealers final settlement. The first two bargaining
sessions in 1979 were in keeping with past practice.
During the first meeting, the Union presented what was
admittedly an inflated demand and at the second session
the Company responded with its offer. Although the par-
ties were not in agreement as to wages at the end of the
second session, both Frock and Spencer testified that the
negotiations were moving in the direction of a wage set-
tlement comparable to the Franchise Truck Dealers' set-
tlement.
At the third bargaining session the Company departed
from past practice. Frock announced that his Company
could not afford to meet area standards. At this meeting
and at the fourth meeting Frock explained to both Spen-
cer and Day that the Respondent was convinced the
building industry was in serious economic trouble. The
Federal Reserve had announced a tight money program
that would have an adverse effect on the Nation's con-
struction. Since the Company manufactured, sold, and
serviced cement mixers any decline in the construction
industry would have a very direct effect on the profits of
the Respondent. In contrast, the Company argued that
the Franchise Truck Dealers provided a product that
was not limited to the building industry and therefore
they could afford to pay a higher wage. On October 19,
the Union accepted the Company's pension proposal and
dropped all other demands, except for an increase in
wages. The Union rejected the Respondent's wage offer
and continued to demand the area standard. Neither side
was willing to change its wage position at the fourth
meeting on November 15. Finally, the Union called for
an economic strike and began picketing on January 21,
1980, to protest their wage dispute.
There was no evidence adduced to indicate that the
Respondent bargained in bad faith prior to February 5,
1980. It is true the Company departed, from past practice
by refusing to ultimately accept the area wage standards.
However, the Company presented a reasonable explana-
tiOn for their position, based on changing economic con-
ditions. The Company's forecast, in the fall of 1979, that
the construction industry faced severe financial difficul-
ties in the approaching years, was extremely accurate.
On February 5, the parties met very briefly. The Com-
pany announced its position had not changed, except that
it was withdrawing its agreement for retroactive pay, it
intended to hire permanent replacements for the strikers,
it wanted an open shop, and the elimination of the union-
security provision. It was undisputed that all prior con-
tracts contained a union-security clause, which the Re-
spondent agreed to maintain in its letter of October 19,
1979. It is the contention of the General Counsel that
"the unprecedented act of demanding an open shop con-
tract, as well as a retraction of the retroactive wages,"
constituted bad-faith bargaining. In support of this posi-
tion the General Counsel relied heavily on Queen Mary
Restaurants Corp., 219 NLRB 776 (1975), enfd. 560 F.2d
403 (9th Cir. 1977), and Tomco Communications, 220
NLRB 636 (1975), enf. denied 567 F.2d 871 (9th Cir.
1977).
In the Tomco case, the Board reiterated the "funda-
mental precept of labor relations law that the 'the obliga-
tion to bargain collectively does not compel either party
to agree to a proposal or require the making of a conces-
sion.' However, as stated above, the Board can and does
consider the totality of the employer's actions to assess
its motivation in determining whether it was really en-
gaging in surface bargaining with no genuine intention to
reach agreement." Although the Respondent in the
Tomco case had a right to insist on a management-rights
clause, 9 the Board found that its rigid adherence to pro-
posals that are predictably unacceptable to the union may
indicate a predetermination not to reach an agreement.
Tomco arrived at the bargaining table adamant in its in-
sistence on the acceptance of its proposed management-
rights clause, which virtually required the union to abdi-
cate nearly every right it would normally possess and
9 NLRB v. American National Insurance Co., 343 U.S. 395 (1952).
CHALLENGE—COOK BROS. 399
need to adequately represent its members. At the very
first meeting, Tomco rejected the union-security clause
that had been in previous contracts and was contained in
article II of the union's proposed contract. Eventually
the unit employees participated in a partial "sickout" and
Tomco responded with a lockout. Throughout the vari-
ous bargaining sessions Tomco conceded little and de-
manded a great deal. In the circumstances, the Board
concluded that Tomco's representative had not bar-
gained in good faith since he knew the company's pro-
posals would never be accepted by the union. Thus, by
examining the employer's conduct of adamantly pursuing
proposals that were impossible for the union to accept, it
became evident that Tomco was motivated by a desire to
engage in surface bargaining and it did not, in fact, have
a genuine intention to reach an agreement. The employ-
er's efforts were to simply frustrate meaningful bargain-
ing.
The employe: in the Queen Mary case exhibited an
intent to frustrate meaningful collective bargaining from
the very beginning. In fact, while the bargaining was in
progress the employer attempted to defeat the union by
committing a large number of unfair labor practices.
Indeed, the restaurant attempted to cover up these unfair
labor practices by offering one important witness $150 to
leave town in an effort to prevent him from testifying
and urging another witness to testify advantageously for
the employer regardless of the facts. When the employ-
er's efforts to defeat the union failed, it acted unilaterally
regarding the critical subjects of wages and seniority,
denied the union information necessary for informed bar-
gaining, and, in bad faith, placed the union in an unten-
able position regarding union security and the hiring hall.
The Respondent urges that the Board's decision in
Olin Corp., 248 NLRB 1137 (1980), provides precedent
in the instant case due to the factual similarity. After the
commencement of the strike, Olin Corporation informed
the union and employees that if they did not return to
their work by January 19, the company would begin to
restaff the plant on January 23. On Monday, January 30,
the first day the replacement workers arrived, the com-
pany informed the union it was withdrawing the union-
security provision from its outstanding offer. The union-
security clause had been in prior contracts. The Board
rejected the argument that the company had violated
Section 8(a)(5) of the Act by withdrawing the union-se-
curity provision:
In context, the Employer's modification of its
proposed agreement by withdrawing the union-se-
curity provision before agreement had been
reached, and its refusal to bargain about the with-
drawal at that time when it was operating with a
new work force do not constitute an 8(a)(5) viola-
tion.
In the same case the Board also found the union had at-
tempted to frustrate the bargaining process in violation
of Section 8(b)(3).
Although there are factual similarities between Olin
and the instant case, there are also significant differences.
The Olin employer notified the union of its intention to
withdraw the union-security clause only after it had
hired permanent replacements and learned of their con-
cern about having to join the union. In addition, by
letter, Olin infomed the union the reasons for taking this
action and concluded by expressing a willingness to dis-
cuss the union security-clause in the event of "changed
circumstances in the future." In contrast, the Respondent
in the present case had neither hired nor even inter-
viewed replacement workers when it announced its in-
tention to withdraw the union-security clause. Under
those circumstances Frock had no way of predetermin-
ing the union sympathies of future replacement workers.
When Frock announced the employer's decision to with-
draw the union-security clause, he neither provided an
explanation, nor a willingness to discuss the matter. Sub-
sequently, the Respondent remained adamant in its oppo-
sition to the security clause.
The events of February 5 marked an abrupt change in
the tactics of the Respondent. Prior to that date the
Company had bargained in good faith. In fact, standing
alone, the Respondent's actions on February 5 may
appear to be nothing more than permissible hard bargain-
ing. However, as seen in Tomco, supra, in order to deter-
mine whether an employer is engaging in surface bar-
gaining with no genuine intention to reach an agreement,
it is necessary to consider the totality of the Respond-
ent's actions to assess its motivations. When all the facts
and circumstances are considered, it is clear that the Re-
spondent's withdrawal of the retroactive pay and the
union-security clause were only the first in a series of un-
lawful actions taken by the Company that revealed their
intent to frustrate meaningful collective bargaining.
Thus, in the circumstances of this case, the Company's
rigid adherence to the withdrawal of the union-security
clause, which was predictably unacceptable to the
Union, indicated a predetermination not to reach an
agreement. Having considered all the circumstances and
events that preceded and occurred after the Respond-
ent's announced modification of its proposed agreement,
find that the withdrawal of the union-security clause
and retroactive pay and the subsequent refusal to bargain
concerning the withdrawal of the union-security clause
constituted a violation of Section 8(a)(5) of the Act. In
reaching this finding, I have considered the totality of
the Respondent's actions as outlined in the remaining
portions of this decision.
b. Respondent's refusal to meet or bargain with the
Union
The Respondent admits it refused to bargain with the
Union on March 17 and April 25, 1980. On March 17, it
filed an RM decertification petition with the NLRB. The
petition was later withdrawn on or about May 22. It is
the position of the Respondent that if it had bargained
with the Union, while the RM petition was pending, it
would have been in violation of Section 8(a)(2). In the
circumstances, I disagree.
In order for the Respondent to lawfully withdraw rec-
ognition from the incumbent Union it must meet certain
standards as set out by the Board's decision in Celanese
Corp. of America, 95 NLRB 664 (1951). In a more recent
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
case, Guerdon Industries, 218 NLRB 658, 670 (1975), the
Board held:
[A] certified union, upon expiration of the first year
following its certification, enjoys a rebuttable pre-
sumption that its majority representative status con-
tinues. . . . the presumption [also] continues to
apply after the expiration of a collective-bargaining
agreement. . . . The presumption may be rebutted,
[however] by evidence establishing that the Union
no longer [enjoys majority representative status].
Even without such showing of loss of majority, an
employer may refuse to bargain if he relies on a rea-
sonably based doubt as to the continued majority
status of the Union. [As to a reasonably based
doubt, two prerequisites for sustaining that defense
are that the asserted doubt must be based on objec-
tive considerations and such doubt must be raised in
a context free of unfair labor practices.]
The burden of proving the existence of reasonable doubt,
based on objective considerations that are free of the
taint of unfair labor practice, rests on the employer. Nu-
Southern Dyeing & Finishing, 179 NLRB 573 (1969).
Frock testified that the sole objective consideration
relied on by the Respondent to give rise to a reasonable
doubt about the Union's majority were the two state-
ments signed by Morris and Holloway on March 10,
1980. The wording of these two statements were suggest-
ed by the Company's labor attorney and Frock. In re-
calling their conversations with the three permanent re-
placements, neither Morris nor Holloway could remem-
ber if the men said they did not wish to be represented
by the Machinists or were simply disenchanted or op-
posed to unions in general. Regardless of the exact re-
sponse of the three replacements and the remaining 47
individuals who were interviewed, the fact remains the
applicants gave their answers in a coercive atmosphere. I
have previously found that Morris' inquiries of these job
applicants about their union sympathies represented un-
lawful interrogations in violation of Section 8(a)(1) of the
Act. Obviously, the fruits of such an unlawful interroga-
tion are tainted, suspect, and unreliable. The applicants'
response may have been true or simply the utterances of
men who were in need of work. Morris asked all 50 ap-
plicants if they were for or against unions. It is difficult
to conceive of an individual who would respond to a
newspaper ad that warns of a pending labor dispute,
cross a picket line, submit to an interview, and then
reply to Morris that he was for the union. Obviously, if
he wants the job and observes the union dispute, he will
provide some negative response, regardless of his actual
union sympathies. At the bare minimum, in the context
of a job interview, the answers by a job applicant con-
cerning union sympathies or support are unreliable and
cannot serve as the basis of reasonable doubt about the
Union's majority. Nor can the employer presume a lack
of union majority when strike replacements and other
employees cross a picket line Penne° Inc., 250 NLRB
716 (1980), supplementing 242 NLRB 467 (1979); NLRB
v. Mar-Len Cabinets, 659 F.2d 995 (9th Cir. 1981).
Absent evidence to the contrary, new employees, includ-
ing strike replacements ; are presumed to support the
union in the same ratio as the employees they replace.
The objective considerations in this case were tainted
because they rose from an unfair labor practice. It is set-
tled that an employer may not use the results of its earli-
er unfair labor practices to justify its refusal to bargain
with the incumbent union. Thomas Industries, 255 NLRB
646 (1981); Oklahoma Osteopathic Hospital, 238 NLRB
1113 (1978); Medo Photo Supply Corp. v. NLRB, 321 U.S.
678 (1944). Accordingly, I find that the Respondent has
presented no credible evidence supporting its asserted
belief that the Union no longer represented a majority of
its employees at the time it refused to bargain. Respond-
ent has not rebutted the presumption of the Union's con-
tinued majority status. In view of the foregoing, I con-
clude that by refusing to recognize and bargain with the
Union concerning a collective-bargaining agreement, Re-
spondent violated Section 8(a)(5) of the Act.
c. Refusal to provide requested information
In a series of letters dated April 22 and 28 and May
23, 1980, the Union requested various information per-
taining to the unit employees at the Respondent's Oak-
land facility concerning hourly wages, a bonuses, holiday
pay, vacation benefits, and pension payments for employ-
ees between February 1 and May 22, 1980; documents
showing the number of hours worked and total compen-
sation received by employees between January 15 and
May 22, 1980; a list of current and future job openings
for unit positions; and all unit job applications; including
the three strike replacements, from January 1 to May 22,
1980. 10 In his letter of April 25, Frock responded to the
Union's first request by stating that the Company had
objective considerations that questioned the Union's ma-
jority status and until the decertification issue was settled
it was pointless to attempt tc negotiate a settlement. In
addition he requested the Union to specify how the re-
quested information related to the bargaining process. In
its letter of April 28, the Union repeated its request for
the information and explained the information was rele-
vant because the Company had an obligation to negotiate
regarding reinstatement of the striking employees. The
Respondent, through Frock, ignored the request. After
the decertification petition was withdrawn, the Union
again renewed its request for the information in its letter
of May 23. The Respondent's attorney, in a letter dated
June 2, refused to provide the job applications of the
three strike replacements because he could not under-
stand their relevance. The Company also expressed fear
for the safety of the three strike replacements, based in
part on the assertions that nails had been strewn on the
company driveway. 11 He further informed the Union
10 The information requested in the April 22 and May 23 letters was
identical, except for the period requested. In general the April 22 letter
requested information between August 1 and April 15, 1980, except for
the documents providing the number of hours worked and total compen-
sation paid, which covered the period between January 1 and April 15,
1980.
11 Other than this June 2 reference to the "nails strewn on the Compa-
ny driveway," there was no other evidence or reference to any form of
strike violence.
CHALLENGE—COOK BROS. 401
that the Company did not have any work available, nor
any planned future job openings for the three striking
employees, because the work was being performed by
the permanent replacements. The Company, however,
indicated it would place the strikers on a preferential
hiring list and in the event of an opening they would be
recalled according to their seniority. On June 4, Frock
forwarded to the Union a copy of the most recent se-
niority report showing the hiring dates, pay rates, and
classifications for the Oakland employees and copies of
the weekly payroll timesheets, The Union was never
provided any additional information.
An employer is required to furnish relevant informa-
tion, at the request of the Union, which is "in the em-
ployer's possession" and "needed by a labor union for
the proper performance of its duties as the employees'
bargaining representative." Detroit Edison Co. v. NLRB,
440 U.S. 301, 303 (1979). It is well established that when
the information that is requested deals with wages, bene-
fits, job classifications, and terms and conditions of em-
ployment, there is a presumption of relevancy and there-
fore no special showing of relevance or necessity is re-
quired." Even in those areas where the requested infor-
mation is not covered by a presumption of relevance, a
liberal "discovery-type standard" is used to determine
relevancy. NLRB v. Acme Industrial Co., 385 U.S. 432,
437 (1967).
'With the exception of the request for the job applica-
tions of the three strike replacements, all other requested
information found in the Union's letters of April 22 and
28 and May 23, 1980, were clearly relevant. The infor-
mation should have been provided promptly after the
Respondent received the Union's letter of April 22.
NLRB v. John S. Swift Co., 277 F.2d 641 (7th Cir. 1960).
The fact that the request for information was made while
the decertification petition was pending does not free the
Respondent of the obligation to promptly furnish the in-
formation, in the circumstances of this case. As previous-
ly indicated, I have found the Respondent lacked ade-
quate objective considerations to support its filing of the
RM petition because the considerations were based on its
own unfair labor practice violations. An employer may
not use the results of its earlier unfair labor practices to
justify its refusal to furnish relevant requested informa-
tion. Accordingly, in the circumstances of this case, I
fmd the Respondent violated Section 8(a)(5) of the Act
by failing to promptly furnish the requested information
to the Union.
d. Elimination of the journeyman mechanic's position
It is undisputed that prior to the inception of the Janu-
ary 21 strike, the Company had neither expressed, con-
sidered, nor formulated any plan for the elimination of
Lovett's unit position as a journeyman mechanic. The
Respondent defends its actions by stating it "did not seek
to eliminate the mechanic's position but rather was
forced into the discontinuance of its service department
' NLRB v. F. W. Woolworth Co., 352 U.S. 938 (1956); Woodworkers
Locals 6-7 v. NLRB, 263 F.2d 483 (D.C. Cir 1959); Ohio Power Co., 216
NLRB 987 (1975), enfd. 531 F.2d 1381 (6th air. 1976); Maywood Do-Nut
Co., 256 NLRB 507 (1981).
-
by a combination of two factors: the strike and the gen-
eral economic downturn." The General Counsel and the
Charging Party argue that regardless of the reasons for
its actions, the Respondent had a duty to bargain with
the Union over the decision and the effects of the deci-
sion to eliminate Lovett's position as journeyman me-
chanic. The Respondent further argues that it did not
simply eliminate the position of one employee, but the
whole service department. Thus, it relies on Stanley Oil
Co., 213 NLRB 219 (1974), for the proposition that when
an employer decides to completely discontinue a product
line, it has no duty to bargain over that decision.
The record is not clear about when the decision was
made to eliminate the mechanic's position. As late as
June 2 and 4, however, the Respondent's correspondence
reveals that it informed the Union that Lovett would be
placed on a preferential rehire list. This statement was
made in response to the Union's unconditional offer to
return to work. These letters are not only silent on the
elimination of unit work, they provide a strong inference
that the position of journeyman mechanic still existed.
The Company did not hire a strike replacement for the
mechanic's position during the stike. Frock also admitted
that he had never informed the Union of the Company's
decision, either orally or through correspondence, until
the July 1 final collective-bargaining session. It was
during that final session that Frock announced, as a fait
accompli, that the Company had eliminated the position
of journeyman mechanic.
The Stanley case is distinguishable on its facts. There
the employer completely closed its service department
and took itself out of the business of servicing equipment.
The credible evidence in the present case would indicate
that the action of the Respondent was only temporary.
Frock spoke in terms of the foreseeable future and not
the permanent elimination of the service department. The
Company, under the sales warranty contracts, remained
obligated to service the cement mixers for its customers.
Although the number of cement mixers that were under
such a warranty decreased from 30, at the inception of
the strike, to 10 by July 1, the Respondent remained ob-
ligated to service those mixers. It met this obligation by
paying its customers to perform their own mechanical
work. In essence, the unit work was subcontracted to the
Company's customers. Those same customers had ex-
pressed a preference for the Company to provide the me-
chanical service under the warranty. Gary Morris, the
service manager, testified it was less costly for the Com-
pany to perform the warranty work than to pay the cus-
tomers. Thus, at the time Lovett offered to uncondition-
allY return to work, there did exist a need for a journey-
man mechanic to perform the warranty work that had
been subcontracted to the customers. If the Respondent
wished to continue to subcontract the warranty work to
its customers, it had a satutory obligation to bargain with
the Union, as Lovett's exclusive bargaining representa-
tive, concerning the decision and the effect of the deci-
sion to eliminate the unit work. I find that by failing to
notify and bargain with the Union over the elimination
of Lovett's job, the Respondent violated Section 8(a)(5)
of the Act.
402 DECISIONS OF THE NATIONAL LABOR. RELATIONS BOARD
3. Elimination of journeyman mechanic's position as
a violation of Section 8(a)(3) and (1)
It is the contention of the General Counsel that the
journeyman mechanic's position was eliminated by the
Company in retaliation for the strike activity of Lovett
and the other striking employees, in violation of Section
8(a)(3) and (1) of the Act. The Respondent denies the al-
legations and argues that the decision to discontinue the
mechanic's function was the result of the strike and the
continued downward slide of the Company's business.
The record does support the Respondent's assertions that
its economic success was directly linked to the construc-
tion industries. Since the fall of 1979, the building indus-
try has continued to deteriorate. To emphasize its plight,
Frock reviewed the change in the number of its employ-
ees in the various plants around the country. The Re-
spondent's plant in the City of Industry, California, expe-
rienced a drop in employees from 600 in the bargaining
unit in early 1979 to as low as 175. The Ohio plant
dropped from 400 bargaining unit employees to the low
200s. The Georgia plant was new and the Respondent
anticipated 250 bargaining unit employees; however, the
number never rose above 75. In the past, the Oakland
site had as many as 10 to 12 mechanics in the service de-
partment. As business continued to deteriorate, the
number of mechanics dwindled to four by February
1979, when an additional three were laid off for lack of
work. Although these statistics provide a general overall
view of the Respondent's economic condition, they fail
to provide specific information to support the alleged
business decision to eliminate the last journeyman me-
chanic's position at the Oakland site.
In the present case, the threshold question that must be
answered is what were the actual "motivating factors,"
that prompted the Respondent's actions. The Board in a
recent decision, Wright Line, 251 NLRB 1083 (1980),
enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982), provided a clear explanation about the proper
analysis of the Respondent's action, when dual motives
exist. In such a case there are two factors to be consid-
ered. In the instant case, was there a legitimate business
reason for eliminating Lovett's position and, second, was
the Employer's reaction also based on the fact that
Lovett had actively participated in the strike. The Gen-
eral Counsel meets its burden of proof and makes a
prima facie case by presenting evidence "sufficient to
support the inference" that Lovett's concerted activities
were "motivating factors" in the Company's decision.
Once this is established, the burden will shift to the Re-
spondent to demonstrate that the same action would
have taken place even in the absence of Lovett's partici-
pation in the strike.
It is undisputed that prior to the inception of the strike
all collective-bargaining agreements contained a union-
security clause, as did the proposed new contract. The
Company also freely admitted that prior to the strike it
did not have any plans for the elimination of Lovett's
position as a journeyman mechanic. In addition, the Re-
spondent's conduct was free of any unfair labor practice
violations until after the beginning of the January 21
strike. Then on February 5, the Company announced its
intentions to eliminate the union-security clause from the
proposed contract and establish an open shop. It pro-
ceeded to unlawfully interrogate job applicants as to
their union sympathies. Three of these individuals, who
professed a dislike for unions, were ultimatley hired as
permanent strike replacements for the partsmen. Then,
based on the tainted objective considerations that the
Company had obtained through job interviews, the Re-
spondent filed an RM petition and refused to bargain
with the Union or supply requested information. Finally,
the Company refused to rehire Lovett after his uncondi-
tional offer to return to work. Thus, the Company's con-
duct abruptly changed after the strike had begun. There-
after, the Company proceeded to violate the Act in retal-
iation for the strike. Accordingly, I find that the General
Counsel has met its burden of proof and has made a
prima facie case by presenting sufficient evidence to sup-
port the inference that the unit employees' participation
in an economic strike was a "motivating factor" in the
Respondent's decision to eliminate the unit journeyman
mechanic position and not rehire Lovett.
As previously noted, the Respondent provided general
information about the decline in its business and the
number of employees throughout the country. However,
very little information was presented by the Company to
support its assertions that Lovett was not rehired for
business reasons. Gary Morris, the Respondent's service
manager, asked Holloway several times whether they
were going to hire a replacement for the mechanic. Each
time he was told, "At this time we are not doing any-
thing about the position." The credible evidence indi-
cates that mechanical work was available at the Oakland
site, when on May 23 Lovett and the other strikers of-
fered to return unconditionally. There were at least 10
cement mixers still under warranty. In addition; Morris
testified that customers preferred to have Lovett perform
the mechanical work on their vehicles rather than do the
work in their own shop. In fact, in the past both warran-
ty and nonwarranty customers were willing to defer re-
pairs until Lovett was free to work on their mixers.
During the strike these customers were turned away. It
is reasonable to assume from Morris' testimony that
many of these customers would return as soon as Lovett
was available. Morris also explained it was cheaper for
the Company to have Lovett perform the mechanical
work than to pay the customers to repair their own vehi-
cles, which were still under warranty. Although the Re-
spondent has advanced broad economic reasons to dem-
onstrate that its business had declined, it failed to pro-
vide specific information to support its position that the
journeyman mechanic's position was eliminated for busi-
ness reasons. Having considered all the foregoing reasons
that were asserted by the Company as legitimate business
reasons for their actions involving Lovett, I find that Re-
spondent has failed to meet its burden to demonstrate it
would have reached the same decision absent the pro-
tected conduct. In light of the above, I fmd that the pre-
ponderance of credible evidence supports the allegations
that the Respondent violated Section 8(a)(3) and (1) of
the Act when it eliminated the journeyman mechanic po-
sition and refused to rehire Lovett after his offer to
return to work unconditionally on May 23, 1980.
CHALLENGE—COOK BROS. 403
4. Failure to reinstate the strikers
The Union began its economic strike on January 21,
1980, as a protest against the final wage offer of the
Company. Such an economic strike may be converted to
an unfair labor strike if the Respondent subsequently
commits unfair labor violations that have the effect of
prolonging the strike. In the present case I have found
that the Respondent has in fact committed a series of
unfair labor practices commencing on February 5, 1980.
At that time, the Company announced that it would
have an open shop, withdrew the previously agreed-to
retroactive pay, and eliminated the union-security clause
from the proposed contract. Subsequently, the Respond-
ent continued to violate the Act by refusing to bargain
with the Union and refusing to furnish the Union with
requested information, eliminating the journeyman me-
chanic's position from the unit without bargaining with
the Union, and filing an RM petition based on tainted ob-
jective considerations. The strikers were kept informed
of these violations. These unfair labor practices did have
the effect of prolonging the strike. Therefore, the eco-
nomic strike was converted to an unfair labor strike as of
February 5, 1980.
As unfair labor practice strikers, Lovett, Risso, and Ef-
finger were entitled to immediate reinstatement to their
former positions when on May 23 their Union offered to
return to work unconditionally, even iNheir former jobs
were filled with permanent replacements. Of course, the
Respondent had hired permanent replacements for the
partsmen, but not for the journeyman mechanic. The Re-
spondent's failure to reinstate the unfair labor strikers as
of May 23, 1980, constituted a violation of Section
8(aX3)and (1) of the Act.
Assuming, arguendo, that the economic strike was not
in fact converted to an unfair labor practice strike prior
to March 10, 1980, when the last permanent replacement
was hired, then the strikers would only be entitled to
preferential hiring as of May 23, the date they offered
unconditionally to return to work. Although the Re-
spondent in its correspondence of June 2 and 4 indicated
that the strikers would be placed on such a preferential
hiring list, they were not reinstated when two of the re-
placement partsmen quit in February 1981. Holloway,
the Respondent's branch manager, testified that the two
replacements had left voluntarily and were not laid off
due to lack of work. In fact, he stated that the two re-
placements would still be working if they had not quit.
Under these circumstances, Risso and Effinger were enti-
tled to reinstatement as of February 1981. Because re-
placements were not hired for the position of journey-
man mechanic, Lovett was entitled to reinstatement as of
May 23, 1980.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
ON COMMERCE
The activities of the Respondent, as set forth above,
occurring in connection with its operations as described
above, have a close, intimate, and substantial relationship
to trade, traffic, and commerce among the several States
and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. Cook Brothers Enterprises, Inc., d/b/a Challenge—
Cook Brothers is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Machinists Automotive Trades, District Lodge No.
190 of Northern California, affiliated with International
Association of Machinists and Aerospace Workers,
AFL-CIO is a labor organization within the meaning of
Section 2(5) of the Act.
3. The appropriate unit for the purpose of collective
bargaining within the meaning of Section 9(b) of the Act
is
All journeymen, general mechanics, field service
employees, trainee mechanics, helpers, parts em-
ployees, apprentices, garage employees, assemblers,
maintenance and custodial employees employed by
Respondent at its place of business located at 7101
San Leandro Street, Oakland, California; excluding
professional employees, truck sales, office clerical
employees, guards, and supervisors as defmed in the
Act.
4. At all times material the Union has been and is the
exclusive representative of all the employees in the
above-described unit for the purpose of collective bar-
gaining within the meaning of Sections 9(a) and 8(a)(5)
of the Act.
5. By interrogating applicants for employment in Feb-
ruary and March 1980 concerning their union sympa-
thies, the Respondent has engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) of the Act.
6. The Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section
8(a)(5) and (1) of the Act by the following conduct:
(a) Since February 5, 1980, and continuing thereafter
to date, the Respondent has failed and refused to bargain
collectively in good faith with the Union by its overall
course of conduct in the contract negotiations.
(b) Since on or about March 17, 1980, by refusing to
recognize and bargain with the Union concerning a col-
lective-bargaining agreement.
(c) Since on or about April 22, 1980, by failing and re-
fusing to provide the Union, in a timely fashion, certain
necessary and relevant information it had requested.
(d) By unilaterally, without prior notice to or consulta-
tion with the Union, eliminating the unit position of jour-
neyman mechanic and by failing and refusing to bargain
about the effect of the elimination.
7. The strike, which commenced on January 21, 1980,
was converted to an unfair labor practice strike on Feb-
ruary 5, 1980—the date the Respondent commenced
committing a series of unfair labor practices, that had the
effect of prolonging the strike.
8. The Respondent has violated Section 8(a)(3) and (1)
of the Act by failing and refusing to reinstate Clarence
Lovett, on May 23, 1980, because of his union activities
and further by the elimination of the unit position of
journeyman mechanic because of Lovett's union activi-
ties.
404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9. The Respondent has violated Section 8(a)(3) and (1)
of the Act by failing and refusing to reinstate Clarence
Lovett, Larry Risso, and Gordon Effinger, the unfair
labor practice strikers who unconditionally offered to
return to work on May 23, 1980.
10. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
DIE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certainlf-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent had engaged in a series
of unfair labor practices in violation of Section 8(a)(5)
and (1) of the Act, which conduct had the effect of pro-
longing the January 21, 1980 economic strike, thus con-
verting it to an unfair labor practice strike as of Febru-
ary 5, 1980, it will be recommended that the Respondent
offer to all its employees who engaged in the strike rein-
statement to their former jobs or, if such positions no
longer exist, to substantially equivalent positions, without
prejudice to thier seniority or other rights and privileges,
dismissing, if necessary, any employees hired to replace
the striking employees, and that Respondent make them
whole for any loss of pay they may suffer by reason of
Respondent's refusal to reinstate them, on request, by
payment to each of them a sum of money equal to that
which would normally have been earned as wages
during the period beginning 5 days after the date on
which unconditional offers to return to work were made
on behalf of the employees, and terminating on the date
of the Respondent's offer of reinstatement, such loss to
be computed in the manner set forth in F. W. Woolworth
Co., 90 NLRB 289 (1950), and Isis Plumbing Co., 138
NLRB 716 (1962). Such employees for whom no em-
ployment is immediately available will be placed on a
preferential hiring list for employment as positions
become available and before other persons are hired for
such work. Priority for placement on such list is to be
dertermined by seniority or some other nondiscrimina-
tory test. See Cutten Supermarket, 220 NLRB 507 (1975).
In addition, having found that the Respondent unilat-
erally changed the working conditions of its bargaining
unit by eliminating the position of journeyman mechanic
and paying its customers to perform the mechanical
work previously assigned to the unit, without adequate
and complete notice and bargaining with the Union, I
shall order Respondent to restore the status quo ante by
opening the service department, by restoring the lost me-
chanical work to the bargaining unit, and by thereafter
bargaining, following complete and adequate notice to
good faith concerning any proposed changes affecting
the bargaining unit.
Because of the character and scope of the unfair labor
practices found, I find a broad cease-and-desist order is
necessary. See Hickmott Foods, 242 NLRB 1357 (1979).
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed13
ORDER
The Respondent, Cook Brothers Enterprises, Inc.
d/b/a Challenge—Cook Brothers, Oakland, California,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Interrogating applicants for employment with the
Respondent concerning their union sympathies.
(b) Refusing to recognize and bargain collectively in
good faith with the Machinists Automotive Trades, Dis-
trict Lodge No. 190 of Northern California, affiliated
with International Association of Machinists and Aero-
space Workers, AFL-CIO as the exclusive bargaining
agent in the following appropriate unit:
All journeymen, general mechanics, field service
employees, trainee mechanics, helpers, parts em-
ployees, apprentices, garage employee, assemblers,
maintenance and custodial employees employed by
Respondent at its place of business located at 7101
San Leandro Street, Oakland, California; excluding
professional employees, truck sales, office clerical
employees, guards, and supervisors as defined in the
Act.
(c) Refusing, failing, or delaying to supply the Union
with necessary and relevant bargaining information.
(d) Unilaterally making or effecting any changes in the
working conditions of the bargaining unit by eliminating
a unit position without first giving notice to the Union,
the collective-bargaining representatives, and affording
such representatives an opportunity to bargain collective-
ly regarding such change.
(e) Eliminating bargaining unit work or paying cus-
tomers to perform the bargaining unit work because of
the union activities of its employees.
(f) Failing and refusing to reinstate an employee, or
otherwise discriminating against an employee, because of
the union activities of its employees.
(g) Discouraging membership in the above-named
Union, or in any other labor organization, by refusing re-
instatement to unfair labor practice strikers upon their
unconditional request.
(h) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the purpose and policies of the Act.
(a) On request, bargain collectively in good faith with
the Machinists Automotive Trades, District Lodge No.
190 of Northern California, affiliated with International
Association of Machinists and Aerospace Workers,
AFL-CIO as the exclusive bargaining representative of
13 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
CHALLENGE—COOK BROS. 405
the employees in the appropriate unit described above,
concerning rates of pay, wages, hours, or other terms
and conditions of employment and provide relevant and
essential information when requested by the Union and,
if an agreement is reached, embody it in a signed con-
tract.
(b) Offer Clarence Lovett, Larry Risso, and Gordon
Effinger immediate and full reinstatement to their former
jobs or, if such positions no longer exist, to substantially
equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed, dis-
charging, if necessary, any replacements hired after Feb-
ruary 5, 1980; and make such employees whole for any
loss of earnings resulting from its failure to reinstate
them within 5 days of their unconditional request in the
manner set forth in the remedy section of this decision.
Such employees for whom no employment is available
will be placed on a preferential hiring list based on se-
niority or some other nondiscriminatory test for employ-
ment as jobs become available.
(c) Open its service department at the Oakland site, re-
storing the lost mechanical work to the bargaining unit,
and thereafter bargain in good faith, following complete
and adequate notice concerning any proposed changes
affecting the bargaining unit employees' wages, hours, or
working conditions.
(d) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the
terms of this Order.
(e) Post at its place in Oakland, California, copies of
the attached notice marked "Appendix."" Copies of the
notice, on forms provided by the Regional Director for
Region 32, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
14 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,"