Cote Bros. Bakery, Inc.

National Labor Relations Board - Board Decisions

Dec 17, 1981

259 N.L.R.B. 776 (N.L.R.B. 1981)

776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cote Bros. Bakery, Inc. and Local 348, Bakery, except that the attached notice is substituted for
Confectionery and Tobacco Workers Interna- that of the Administrative Law Judge.
tional Union of America, AFL-CIO. Cases 1-
CA-17666 and 1-CA-17762 APPENDIX
December 17, 1981 NOTICE To EMPLOYEES
~DECISION ANDORDER, ~ POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
BY CHAIRMAN VAN DE WATER AND An Agency of the United States Government
MEMBERS JENKINS AND HUNTER
On July 9, 1981, Administrative Law Judge After a hearing at which all sides had an opportu-
Robert W. Leiner issued the attached Decision in nity to present evidence and state their positions,
this proceeding. Thereafter, Respondent filed ex- the National Labor Relations Board found that we
ceptions and a supporting brief, a motion to reopen have violated the National Labor Relations Act, as
the record, and a motion to dismiss.' amended, and has ordered us to post this notice.
Pursuant to the provisions of Section 3(b) of the WE WILL NOT threaten to discharge employ-
National Labor Relations Act, as amended, the Na- ees who engaged in a lawful strike by telling
tional Labor Relations Board has delegated its au- them that they are "through" if they continue
thority in this proceeding to a three-member panel. to engage in the strike.
The Board has considered the record and the at-E WILL NOT insist, to the point of bargain-WE WILL NOT insist, to the point of bargain-
tached Decision in light of the exceptions and brief ing impasse, on nonmandatory subjects of bar-
and has decided to affirm the rulings, findings,2 andn dn anamnty fr or -
gaining, including an amnesty for all our em-conclusions of the Administrative Law Judge and, i a r eployees who pass through or work behind theto adopt his recommended Order. U s picet
Union's picket line.
ORDER WE WILL NOT in any like or related manner
Pursuant to Section 10(c) of the National Labor interfere with, restrain, or coerce employees in
Relations Act, as amended, the National Labor Re- the exercise of the rights guaranteed them i
lations Board adopts as its Order the recommended Section 7 of the Act.
Order of the Administrative Law Judge and WE WILL, upon request, bargain collectively
hereby orders that the Respondent, Cote Bros. in good faith with Local 348, Bakery, Confec-
Bakery, Inc., Manchester, New Hampshire, its offi- tionery and Tobacco Workers International
cers, agents, successors, and assigns, shall take the Union of America, AFL-CIO, in the below-
action set forth in the said recommended Order, described unit with respect to wages, hours,
and other terms and conditions of employment
'Respondent moves to reopen the record to adduce evidence that its and embody any understanding reached in a
assets have been foreclosed and are being liquidated, and that an involun-
tary bankruptcy petition has been filed against the Company. Inasmuch as signed agreement:
this evidence if established would not in any way affect the findings and
result herein, see Sec. 102.48(dX1) of the Board's Rules and Regulations, Bakery Production Department, Porters,
Series 8, as amended, and inasmuch as such matters are more appropriate- Plant Maintenance and Shipping Depart-
ly handled at the compliance stage of this proceeding, we decline to ments excluding Executives office and
grant Respondent's motion. For the reasons discussed by the Administra-
tive Law Judge in fn. 10 of his Decision, we also deny Respondent's clerical employees, guards, professional em-
motion to dismiss. .... . . ployees, and supervisors as defined in theI Respondent has implicitly excepted to certain credibility findings
made by the Administrative Law Judge. It is the Board's established Act.
policy not to overrule an administrative law judge's resolutions with re-
spect to credibility unless the clear preponderance of all of the relevant WE WILL, upon their unconditional offer to
evidence convinces us that the resolutions are incorrect. Standard Dry return to work, reinstate the strikers to their
Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951). We have carefully examined the record and find no basis for re- old jobs, dismissing, if necessary, any replace-
versing his findings. ments hired in their place, except where such
In agreeing with the Administrative Law Judge that Respondent vio-replacements occurred before June 24, 1980,
lated Sec. 8(aX5) of the Act, we find it unnecessary to pass upon the al-
ternative theory (which he characterized as "legally unnecessary" to and make them whole for any loss of earnings
decide) which he discussed in pars. 9 and 10 of the section of his Deci- that they may incur, with interest. Striking em-
sion entitled "Discussion and conclusions" and in the section entitled
"The Strike as of June 24, 1980." ployees who were premanently replaced or
We note that the Administrative Law Judge inadvertently miscited whose jobs were abolished before June 24,
Nelson Filter, a Division of Nelson Industries, Inc. The correct citation is 1980, shall be offered jobs when and if the pre-
255 NLRB 1080 (1981).
Finally, we shall conform the Administrative Law Judge's notice with
his recommended Order.
259 NLRB No. 101

DECISION AND ER,,
P O ST E D BY O R D E R O F T H E
A ft e r a i g a t w h ic h a si d e s h a d a
t o t t t i iti ,
. t h e t t
,
Iamended,
i l
t t r - r panel. to engage in the strike.
E
t i i i ,
s,2 i cluding n a nesty or all ur em-
l i py who ps t o r b the
in s pik tline.
.
in t e r fe re , , l i
t h e e x e r c is e o f t h e tee in
W E W IL L ,
n
' s t t t i t at its a y U ersta i g reached in a
,
Signed
\, - o.^ tion rtment, D^-*.-^
D) lations,Bakery i t, s,
-
l l t t e c lia ce stage of this proceeding, e decline to ents, excluding Executives, office and
s, ,
Up Unc i Off O
Stri O
oducts, B f . O jb dsiin f esar n epc-
1). r f l r d r ,
i it t i istrati e a Judge that Respondent vio- replacements Occurred before June 24, 1980,
l-
ti
t ti f is i- t t t a i r, it i terest. triking e -
."
W
lter, isio of N e lso us ries nc . T h e c o r e ct c itat io n is 1 9 8 0 sh a l e o f e r e d o b s w h e n a n d if t h e -
).
-
sis e'"Id
COTE BROS. BAKERY, INC. 777
manent replacements leave, or when positions from points located outside the State of New Hampshire.
become available for which they are qualified. Respondent, at all material times, has been, and is, an
employer engaged in commerce within the meaning of
COTE BROS. BAKERY, INC. Section 2(2), (6), and (7) of the Act.
DECISION II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, Respondent admits, and I find
STATEMENT OF THE CASE that Local 348, Bakery, Confectionery and Tobacco
ROBERT W. LEINER, Administrative Law Judge: The Workers International Union of America, AFL-CIO, is a
charge in Case l-CA-17666 was filed and served on July labor organization within the meaning of Section 2(5) of
15, 1980, by Local 348, Bakery, Confectionery and To- the Act.
bacco Workers International Union of America, AFL-
CIO, herein called the Union or Local 348, upon CoteII. THE ALLEGED UNFAIR LABOR PRACTICES
Bros. Bakery, Inc., herein called Respondent. The charge . Bckground
in Case 1-CA-17762 was filed and served by the Union
on August 19, 1980, on Respondent. The Regional Di- At the hearing, the General Counsel and Respondent
rector for Region 1 of the National Labor Relations substantially amended their respective pleadings: The
Board, herein called the Board, acting for and on behalf General Counsel withdrew various allegations of inde-
of the Board's General Counsel, issued a complaint and pendent violations of Section 8(a)(l) of the Act. Re-
notice of hearing on October 15, 1980. Pursuant to the spondent admitted that it and the Union were parties to a
second charge herein, the aforesaid Regional Director, collective-bargaining agreement effective from May 4,
on January 25, 1981, issued an order consolidating cases 1977, through May 7, 1979, encompassing the following
and amended complaint and notice of hearing. Respond- unit:
ent filed timely answers to both the original and the
amended complaint on October 23, 1980, and January 15, Bakery Production Department, Porters, Plant
1981, respectively. The consolidated amended complaint, Maintenance and Shipping Departments, excluding
herein referred to as the complaint, alleges that Respond- Executives, office and clerical employees, guards,
ent violated Section 8(a)(l) and (5) of the National Labor professional employees and supervisors as defined in
Relations Act, as amended, by virtue of various alleged the Act.
threats to employees on June 10 and 11, 1980, after the
commencement of a strike and by virtue of a refusal to Respondent, in addition, also admitted that the above
bargain by Respondent as shown by certain acts it com- unit is one appropriate for the purposes of collective bar-
mitted during collective-bargaining negotiations occur- gaining within the meaning of Section 9(b) of the Act,
ring on June 24, 1980. The complaint, as modified at the and that since onor about 1951 the Union has been the
hearing, also alleges that the strike, which commenced designated exclusive collective-bargaining representative
on or about June 10, 1980, was converted into an unfair of Respondent's employees in the above unit' and had
labor practice strike on or about June 24, 1980. In its an- been recognized as such by Respondent for purposes of
swers Respondent admits various allegations of the com- Section 9(b) of the Act until on or about June 30, 1980.
plaint but denies the commission of any unfair labor The parties agree that the Union engaged in an eco-
practices. nomic strike commencing at or about noon, June 10,
Pursuant to notice, a hearing was held on the issues 1980, but the General Counsel alleges, and Respondent
raised by the pleadings in Boston, Massachusetts, on May denies, that the strike became an unfair labor practice
13 and 14, 1981. After close of receipt of the evidence, strke on June 24, 1980. There is no dispute that the
the parties waived oral argument and thereafter filed strike continued through the time of the hearing herein.
timely briefs which have been duly considered. It is admitted by the General Counsel that Cote Bros.
Upon the entire record in this case, including the Bakery has been in substantial financial difficulty at least
briefs, and upon my observation of the witnesses as they since 1979. At all material times from the end of 1979
testified, I hereby make the following: until June 1980, Respondent maintained an $800,000 debt
to the Indian Head Bank, Nashua, New Hampshire,
FINDINGS OF FACT herein called the Bank. By June 1980, Respondent had
defaulted on repaying this loan and was insolvent in
1. JURISDICTION excess of $323,000. Furthermore, for at least 6 months
The complaint alleges, Respondent admits, and I find prior to June 1980, Respondent had defaulted on its obli-The complaint ll eges, Respondent adm New Hampshire gation to pay contributions to the Union's pension fund
that, at all material times, Respondent, a New Hampshire collective-bargaining agreement (G.C.
corporation, maintained its office and principal place of under an expired collectivebargaining agreement (G.C.
business at 87 Elm Street, Manchester, New Hampshire, Ex. expied My , 1 , whih agreeent hits exp
where it has been, and is now, engaged in the manufac orally extended by the parties subsequent to its expira-where it has been, and is now, engaged in the manufac- tion. Lastly Respondent had been in default of paying
ture, sale, and distribution of bread and rolls, annually
shipping products valued in excess of $50,000 directly to The actual collective-bargaining representative prior to June 1, 1979,
points outside the State of New Hampshire, and annually was another local of the same International. On June 1, 1979, that local
receiving products valued in excess of $50,000 directly was merged into Local 348.
.
e c ti o n 6 ) , an d 7 ) o f t h e A
c t .
111
T H E L A B O R
, , ti
t h e A c t .
te I IL T H E ^EG
A. ackground

,
)(l) )
t l t, i iti , l itt t t t
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l i t, i an
d t h at s nc e o n o r ab o u t 19 5 1 t h e U nio n ha s be en t h e
ri i l i r ini g nt ti
i o f ' l i t it'
be en i t f r f
e c t i n o f th e A c t u n t il o
n o r a b o u t J u n e 3 0 1 9 8 .
h e P
ri l 19 80
bu t t h e G er al C o u ns el a nd
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th at t h e st r ik e b ec a m e an un f a ir lab o r r ti
. t i ,
st ik e J un e 19 8 . T h e
r e s i t t h at t h e
l f r l s
t r i k e t ti t ri r i .
l l
is r l l
, t nti l i l i l
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si nc e 19 79 . A t all t ri l ti fr t f 1979
ti
u n t J u ne 19 80 t
i
I.
t l li
l int all t its, and I find ' i
ll t ri l t, ir ^ une anepie ll ti - r i i agree ent ( . .
ti l expired l l t rg agreem nt had been
i , r 7, 7) re m t ad en
er ithasbee, no a in u - i i t f - to.Laty t had been in default f paying
l a l t l pau a
Shi i l i Of tl I i i ,
i l a , , l l
1
^

t l t t
i i r
i
r l
.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the interest on its bank debt for at least that same 6- call from Respondent's attorney, he acceded to the re-
month period. Negotiations regarding a new collective- quest not to do so for at least 1 day.
bargaining agreement occurred from time to time since Louis Murray testified that he agreed with his attorney
expiration of the old agreement. (Horton) and the other bank official (O'Brian) that there
By April 1979, the Bank had employed a financial con- would be no negotiations by the Bank with any union
sultant, Charles R. Hefford, to review and evaluate Re- people and no involvement in Respondent's union affairs.
spondent's financial condition and prospects. In a report Their only function was to demonstrate Respondent's un-
to the Bank (not presented at this hearing), Hefford ad- happy financial position to the Union. Thus, at their re-
vised the Bank that, notwithstanding Respondent's de- quest, Ullrich went to the picket line and returned with
faults, it need not at that time take over Respondent's several union business agents and officers, including
assets (apparently pursuant to its right as a creditor) and McLellan and Local 348 Business Manager David
that Respondent could continue as a viable business pro- Murray, as well as several picketing employees. Ullrich
vided various internal changes and economies were insti- left them. With the union business agents as well as the
tuted. Thereafter, Hefford became a financial consultant striking employees standing in Respondent's loading
to Respondent. 2 area, a conversation ensued between the parties. Local
Sometime no later than May 1980, in bargaining with 348 Business Manager David Murray testified that Bank
Respondent, the Union demanded an economic package Vice President Louis Murray said that if a strike contin-
which consisted of a 92-1/2-cent-per-hour increase. The ued for 2 days Respondent would "fold." He said that
Bank authorized Respondent to offer no higher than a Bank Official O'Brian added that the Bank had given Re-
total of 30 cents per hour: 17-1/2 cents per hour for spondent the 30-cent-per-hour economic package and, if
maintenance of existing benefits; and a 12-1/2-cent-per- the Union did not believe Respondent's financial condi-
hour wage increase. Respondent made this cnunteroffer tion, the Union could inspect the books. David Murray
in May 1980. said that he answered that the Union knew of Respond-
In support of its continued claim of financial inability ent's financial problems; the Union had given Respond-
to pay higher wages, it is undisputed that as early as Oc- ent a I-year extension without increases and believed
tober 1979 Respondent offered, and the Union agreed, to that they already had an agreement for a zero increase
have the Union inspect its books and records. The Union for the first year of a new contract and 75 cents per hour
did so on or about October 3, 1979. I further find that, at for the second year. O'Brian then allegedly answered
all material times thereafter, Respondent has offered to that the Bank had told Respondent that it could offer
prove its continued financial inability to pay greater eco- only 30 cents per hour and was telling the Union the
nomic increases. same thing. The Union said that the strike would contin-
On June 10, 1980, the parties held a collective-bargain- ue.
ing session in which the Union demanded 92-1/2 cents Frank Volpe, a Local 348 business agent, testified that
per hour as a total economic package. Respondent of- the bank officials not only said that Respondent would
fered 30 cents per hour and offered to prove, again, its have greater financial problems if the strike continued,
inability to make a more fruitful economic offer. The but the Bank would foreclose its loans to Respondent
Union nevertheless insisted on its demand of 92-1/2 cents and sell Respondent's equipment and everybody would
per hour and engaged in an economic strike commencing lose their jobs.
at or about noon on that day. At noon, a picket line was Louis Murray, who on June 10 caused O'Brian, to
authorized by the Union's officials, including Kenneth serve Respondent with a demand for payment of the de-
McLellan, an International vice president of the Union. faulted loan, testified that he told the union officials and
At the start of the June 10 strike, Bruce Ullrich, gener- the employees that the Bank was there not to negotiate
al manager of Respondent, telephoned Louis Murray, a or get involved between the parties but merely as an in-
senior vice president and chief loan officer of the Bank, dependent third party; that the Bank's interest concerned
for help and counsel. He told Murray that the Union ap- whether to foreclose its loan and liquidate Respondent's
parently did not believe Respondent's poor financial po- business; that Respondent was $361,000 into insolvency;
sition and that perhaps Murray and the Bank could con- that any slowdown of revenue coming in could have a
vince the Union that Respondent was unable to pay fatal impact on the Company"; and that the Union
more. should "draw its own conclusions as to what would
Within a half hour, Murray, together with the Bank's happen with the continuation of the strike" He denied
attorney and another bank official, arrived at Respond- telling them that a continuation of the strike would force
ent's bakery, met with Ullrich and asked Ullrich what Respondent to close or even mentioning 30 cents per
they could do. They decided that the Bank, as a "neutral hour or anything with regard to negotiations. He testi-
third party," should speak to the Union's officials in the fed that he told the employees and union officials only
absence of Ullrich (or any other of Respondent's supervi- that he was there as a third party giving the Bank's point
sors) and denonstrate to them Respondent's financial dif- of view with regard to Respondent's financial condition.
ficulties. Murray also credibly testified that, at that time,
he considered it to be a prudent act, in protecting the B. Louis Murray's Statements as Alleged Violations of
Bank's interest, to activate the legal machinery to take Section 8(a)(1)
over Respondent's assets but, pursuant to a telephone
Ihinseothr____indagnto__tebnkThe complaint alleges that Respondent, by the Bank's
2There is no suggestion that he remained an agent of the bank officials as its agents, told the employees that the Bank
,
Iarea,
.
1-
.
,
i l t, ti
l i t l i t l
i i l
ili l i
i r l
i i strik co encing lose their jobs.
is
i ' l , t
ti l i l i i i l
t t t t tri , ll i , r- t l t t t t r t t ti t
l t, t l i i t t
i i i i f l i , t i rt t ' i t t
l l. t t t i it t'
tl l i l t l ;
i i t t t l ta ,yl r i i l
t l
m o r e . I l i l i
i i lf i t i ti i ."
tt t ffi i l, i t - t t t ti ti f t tri l f r
r t ti
l i ti ti . ti
rt ," l ' l l
rvi
i l if i l i
. i l ti
i ti ray's ts l l tions
t t ti ( )( )
t' t t, t t t l
I There is no sggestion that e remained an aent of t e banThe l i t ll s t t t, t 's
2
There is no suggestion that he re ained an agent of the bank ffici ls as its a e ts, t l t e e l ees t t t e a
"
i i j .
COTE BROS. BAKERY, INC. 779
would foreclose and the employees would lose their jobs rich approached him and told him that he was trying to
if the employees continued to strike. Respondent contests get a shift together for that night to continue to work;
this agency status, but no finding on the point is neces- that if Tuthill wanted to come to work he could; but that
sary since I dispose of the Bank's action on the merits.3 if the strike continued, the plant would close permanent-
The General Counsel did not call McLellan to corrobo- ly. Ullrich denied having any such conversation with
rate the testimony of Volpe and David Murray. Similar- Tuthill. I credit Tuthill and discredit Ullrich. I do so on
ly, Respondent called neither its attorney (Horton) nor the basis of the specificity of Tuthill's recollection and
its agent (O'Brian) to substantiate and corroborate the on the demeanor of the witnesses. I conclude, neverthe-
testimony of Louis Murray. less, that Respondent did not violate Section 8(aXl) of
I resolve the testimonial conflict between the Bank the Act by telling Tuthill, a striking employee, that Re-
and the union officials as follows. I conclude that Louis spondent would close its plant permanently if the em-
Murray did tell the assembled union officers and employ- ployees continued to strike. I note that, although eco-
ees that continuing the strike would cause Respondent nomic elements were mentioned by Ullrich to Tuthill,
such loss of revenue as to cause it to fold, and that the the statement was insulated by the then existing facts,
Bank would foreclose the loan, and sell the equipment above stated. I recommend that this allegation be dis-
and everybody would lose their jobs if the strike contin- missed
ued. That is the meaning of his "draw [your] own con- The only remaining alleged violation of Section 8(a)(1)
clusions remark." I also conclude that Louis Murray's is in paragraph 8(b) and involves Respondent's vice
and the other bank officials' statements to the union offi- esident, Colette Cote, and a telephone conversation she
cials and employees, that a continued strike meant such a had with striking employee John Shea in the evening on
loss of revenue as to necessarily cause the Bank to fore- June 11, 1980. According to Shea, Cote telephoned him
close, Respondent to go out of business, and the employ- at his home and asked him to return to work and he re-
ees to lose their jobs, in the presence of the objective fi- p t p-
nancial data known to the Union for at least 6 months, plied that hewould ot doso withoutthe Union's
were insulated from any coercive effect as an unlawful proval. To this, Shea testified, Colette Cote said that ifwere insulated from any coercive effect as an unlawful
"threat" within the meaning of the Act. Thus, such state- he did not return that day, "Youre through."
ments, in conjunction with Louis Murray's unchallenged Cote could not recall any particular conversation with
testimony that, in the Bank's interest, it should have im- John Shea, although she testified that she telephoned 30
mediately taken over and liquidated Respondent's assets of the 60 striking employees in order to have them
and that it contemporaneously presented a demand to return to work because, as she told them, the Company
Respondent for payment of its defaulted loan (as a legal had decided to operate and was trying to get a shift to-
preliminary to taking over Respondent's assets), were gether. Cote testified that she told all 30 employees
based on clear and open economic data which demon- whom she telephoned that Respondent was merely
strated a reasonable belief on the Bank's part that Re- trying to start a production line and asked them to
spondent could not continue in business suffering the an- return. While she could not recall what Shea answered,
ticipated economic losses due to the strike. This is legally she denied telling him, or any other employee, that they
far different from an attempt, without objective, support- were "through" if they did not return to work.
ing economic data, by an employer to coerce employees On the basis of his demeanor and the specificity of his
into giving up their right to strike by a threat to go out testimony, together with the particular lack of recollec-
of business. The Supreme Court recognized this in tion of Cote regarding her conversation with him, I
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575, 618 credit Shea and conclude that, as alleged, Cote told him
(1969). Under Gissel, I conclude that Louis Murray's that, if he did not return to work that day, he was
statements concerning Respondent's going out of busi- "through"; and that such statement was a threat of dis-
ness ("draw [your] own conclusions") in the face of a charge uttered to a striker in violation of Section 8(a)()
loss of revenue due to the strike was a "reasonable pre- of the Act. This is far different from an objective prog-
diction based on available facts." Gissel, supra at 618. nostication of going out of business.
Certainly, there is no evidence of the Bank's insincerity
in making these predictions. I therefore recommend that D. The Alleged 8(a)(5) Violations
paragraph 8(d), which alleges an independent violation
of Section 8(aXl) of the Act by virtue of the bank offi- I. The collective-bargaining session of June 17, 1980
cials' June 10 statements to Respondent's striking em- Following the June 10 bargaining session which result-
ployees of a threat to go out of business, be dismissed. ed in the strike of that day, the Federal Mediation and
C. Other Alleged 8(a)(1) Violations Conciliation Service called a further meeting for June 17,
1980. The Union's witnesses, particularly David Murray
According to the testimony of Scott Tuthill, an em- and Frank Volpe, testified that at Respondent's attor-
ployee engaged in the June 10 strike, he met Bruce Ull- ney's (Bennett) request the Union's full committee of em-
rich in the bakery parking lot in the afternoon on June ployees and union agents selected and worked principal-
10 while the strike was in progress. He testified that U11- ly through a subcommittee consisting of Volpe, David
Murray, and McLellan (succeeded by Joseph Thibodeau
'Were a finding necessary, I would conclude that Respondent used the at meetings after June 17). The testimony is in dispute as
bank officials to persuade the Union of Respondent's insolvency and the to whether at this June 17 collective-bargaining session
economic consequences of a continued strike Within the scope of such
activities, they were Respondent's agents. the parties resolved the question of the Union's accept-
3
, t t t i t i l t ti 8(aX() f

l l t l , ll t . I
t i j if t e stri e contin- issed.
. t i t i f i r [ ] l i i ll i l ti ti
el i r r ." I l l t t i rr ' i i ( ) i l t'
' ffi i l ti
i l l , t t ti tri t t i i l i i
l f r s t sarily t t f r - , r i t , t t l d i
cl s , t t t f i , t l - t i i
t l t ir j , i t r f t j ti i a h wu n d so wh th U a
i l t l t t , li t
h at h e w o u l d " o t d o so w l h o u t t h e v n on 's ap
nancal dta nownto he Uion or t lest monhs, proval. this, hea testified, lette te sai t at if
r i l f l he did not r Sternethatddayle"toC'tesahdohat."
n o t r e t u r n t . 'r .
e ts, in j ti it is rr ' ll
o te c o u ld n o t r e c a
i J o h n e a , lt s t stifi t at she tele e 30
o f t h e 60 t i i l i r r t a e t e
r e t u rn t o , t l t , t a
tr i t t s ift t -
t t t l ll l

. . .
XI)
. i l
)( 1.
h e
' t i l i i i l
l t t i , ,. l
l)
c il ia t io n e r v c e c a l le d
a f u r t h e r f ,

bank off
c i
als to persuade the nion
f
espondent's insolvency and the t t r t t i ll ti - r ini g i
i f ti stri . it i t s f s c
ti ndent's f '
s
l e d l d

e

P' le
" "
l t
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ance of Respondent's outstanding offer of a 30-cent-per- the employees who crossed the picket line, McLellan
hour economic package. Contrary to the testimony of said that what Respondent was asking for was against
Respondent's witnesses Ullrich and Hefford, I credit the the International constitution; that members had a right
particular testimony of Volpe, who testified that the to bring charges against other members; and that, in
union subcommittee, at that bargaining session, agreed to view of the fact that he thought that there was an exist-
present the 30-cent-per-hour package to the full commit- ing agreement, that Respondent had "doublecrossed" the
tee, that the full committee ultimately agreed to recom- Union. McLellan recalled that, in addition, he told Ben-
mend the 30-cent-per-hour package to the membership, nett that while the Union could not agree to a provision
and that the subcommittee so notified Respondent. against reprisals against members who crossed the picket
Further, I conclude, while the ultimate question of line because the members had a right to file charges
whether the subcommittee told Respondent that the under the union constitution, the union officers had no
Union was going to recommend to the membership the interest in taking reprisals against such members. Volpe's
30-cent-per-hour economic package is not dispositive and testimony corroborates David Murray's and McLellan's
while this is not an "acceptance" of Respondent's offer, I credited testimony.
also make the subsidiary finding that at the beginning of Charles R. Hefford, present at the meeting as Re-
the meeting (after the Union acknowledged that it knew spondent's financial consultant, credibly recalled that,
that Respondent was in deep financial trouble) Respond- when the Union stated that it could not bind the mem-
ent initially inquired whether the Union was prepared to bership from making charges against the members who
submit Respondent's offer to its membership with an af- crossed the picket line, but that the officers had no inter-
firmative recommendation. While the Union at first said est in taking retaliation, Bennett or Ullrich said that such
that it would submit the recommendation without com- an assurance from the Union was not sufficient and that
ment, it then agreed to meet with the full committee on Respondent wanted an assurance against retribution or
the matter and submit it to them. It was after this cau- retaliation by the membership. He recalled Ullrich saying
cusing that the subcommittee returned and, as above that the union officers' assurance, as it stood, was not
noted, told Respondent that the Union would recom- good enough; and that Respondent needed an agreement
mend the 30-cent-per-hour package to the membership. I against retaliation from any quarter against the employ-
also find that it was Union Vice President McLellan ees who passed through the picket line since they were
who, before caucusing with the full committee, told Re- the older, experienced employees needed by Respondent
spondent that the Union would submit the 30-cent-per- to operate. He recalls that Respondent called them its
hour wage package "without recommendation." I con- "key" people. Ullrich recalled that McLellan said he
elude that after caucusing the Union notified Respondent hoped Respondent was not trying to tell him how to run
that it was prepared to recommend the 30-cent-per-hour "his Union."
economic package to the membership for a vote, and I credit Hefford's testimony that at that point McLel-
that the vote, in accordance with Respondent's request, lan said that, since there could be no agreement with
would be by secret ballot. regard to the issue of retribution or retaliation against
At the time of this June 17 meeting, the strike was in members who had crossed the picket line, he would not
progress for 1 week. During the meeting, and before the present Respondent's 30-cent-per-hour economic offer to
Union's caucus to consider acceptance of the economic the membership. At that point, after McLellan said that
package, Ullrich told the Union of a number of inci- the members had a constitutional right under the Interna-
dences of strike misconduct affecting some (about 17) tional constitution to file charges against members who
employees who had crossed the picket line and workedl r t i t li r crossed the picket line, Bennett asked for a copy of the
for Respondent during that week. Ullrich read off a list constitution to see what the members' rights were.
of allegations of attempted rape, scratching and painting McLellan said that he did not have a copy of the consti-
cars, and threats to employees who crossed the picket tution with him but would provide Bennett with a copy
line. McLellan denied knowledge of the incidents but thereafter, and suggested that Bennett, as a lawyer,
added that he would pass the word that the members might find a way around this problem. A copy of the
should abstain from violence.l st i fr i le ce. constitution was subsequently served on Bennett.
I further find that, after the subcommittee returnedand rhe adised Resp, aftde . .tuncmion comttree Volpe credibly testified, and Ullirch's and Hefford'sand advised Respondent that the Union committee3 n - t on ommic testimony supports the conclusion, that this June 17would recommend the 30-cent-per-hour economic pack-would recommend the \0-cent-per-hour economic pack- meeting broke up after Bennett said that Respondent
age, Respondent (Bennett) said "great" but that the par- could not allow the employees who crossed the picket
ties still had to resolve the problem of protecting the line to have problems and would have to have an agree-line to have problems and would have to have an agree-working employees against any threats or reprisals from m t t "ment that these "key people" would not be subject tothe returned strikers. I find, in accordance with Ullrich's ny union etibutn ee by h n te id thany union retribution either by having them fired by thetestimony, that Bennett and Ullrich told the Union that nion through o of union me i or theUnion through loss of union membership or through theRespondent sought to protect employees who crossed .Respondent sought to pr t e s wo c d imposition of heavy union fines which might cause them
the picket line and any "new hires." Ullrich and Bennett to quit their e oyen
told the Union of Respondent's concern with the Union's
anticipated retaliation against its members who crossed 2. The collective-bargaining session of June 24, 1980
the Union's picket line. David Murray recalled that,
when Respondent, through Ullrich and Bennett, demand- The Federal Mediation and Concilation Service called
ed a contract provision that there be no reprisals against a meeting on June 24. The meeting opened with the me-
espo dent,.against

'
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it

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i i ' ti l
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t t
i ti i
' i i i i
, i ti ti l
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s t
t i ll i li ti ti t ' i
l t i i i ti
, t t l
t

l t i v ti ti quentl r
. ,„..-. ri' jur rI further find that, er the subcommittee re urned.Volpe ' . - , ,. . .. -and a vised Respondent that the Union co mittee
m bo up a Bn si ta Resonenr» -i. /n \ -i .. " i-. .1.. .1meeting r e after ennett sai t at es e t, t tt i r t t t t t r- l t ll t l s r ss t e ic et
ti till t e 1 , . , . 'i_. * i r ~~~~~lin
i l i t e p w no b subjct t. c . * ' B „ , . - , ., ,„, . .ment
a r it in fired by e. . . „ , , ,,ii *i. . u .. TT .u
t ti , t t tt llri t l t i t t Ui t l through t- ,*" , ,. . , . , , , ~~~Uniont t t t t . . -. ~ . i >t s t t r tect ployees ho rosse i iti
. mlyet
r
COTE BROS. BAKERY, INC. 781
diator asking the Union to explain its International con- dation against the members who had crossed the picket
stitution and the members' right to file charges against line. Thibodeau testified that he could not recall the
members who crossed the union picket line. latter phrase being used: that the Company wanted to
Attorney for Respondent (Bennett) then stated that pick and choose because it did not want to reinstate
since he had been provided with the copy of the union those responsible for violence. I do not credit Thibo-
constitution between the two meetings, and the Union deau's lack of recollection, and I conclude that such a
had rejected a premeeting suggestion that the Union right was linked with the question of Respondent's desire
exact a token $25 fine on each member who had crossed to pick and choose among employees, rejecting those
through the picket line, the way around the problem of whom it thought responsible for various acts of intimida-
union retaliation was that the Union agree to an "agency tion and violence. Thibodeau, in any event, denied
shop." Bennett said that an agency shop would require asking Bennett why or who he wanted to pick and
merely the payment of union dues and fees without re- chose.
quiring union membership and that the union members Volpe testified that Bennett, after hearing that the
who had crossed the picket line could neither be heavily Union had met with the unit employees regarding the
fined nor retaliated against. This would permit their con- filing of charges, said that the parties had another prob-
tinued employment as key people by Respondent. The lem and that Respondent wanted to pick and choose
Union refused to agree to the offer. Thereafter, Bennett from among those strikers who returned. Volpe recalled
suggested, and the Union rejected, an agreement for an that the Union's response was that it could never agree
initial 1-year agency shop to be followed by the reinstitu- to that, that the meeting broke up, and that the bargain-
tion of a union-shop provision in the second year of a 2- ers returned to the picket line. Volpe could not recall
year contract. The Union told Respondent that it would any linkage between the alleged violence and Respond-
not agree to any form of agency shop. ent's desire to pick and choose. As aforesaid, I find that
David Murray recalled that at that point Attorney there was a linkage mentioned by Respondent between
Bennett asked whether the Union could discharge the its desire to pick and choose from among returning strik-
employees who crossed the picket line and the Union re- ers and its appraisal of whether the strikers were en-
sponded that it could not and even gave reasons (not dis- gaged in acts of violence or intimidation.
closed in this record either by direct examination or
cross-examination) why it could not cause a discharge of 3. The June 24 collective-bargaining session
such employees. David Murray testified that after the according to Respondent's witnesses
Union again said that the union officials would not retali-
ate, and would even recommend to its members that they Hefford recalled that the Federal mediator, at the con-
take no reprisals but could not guarantee that, Bennett clusion of the June 17 collective-bargaining session,
said that he agreed that the Union had done everything stated that he saw the possibility of progress if the retali-
possible and that he understood and approved of the ation or "retribution" issue could be addressed. He re-
Union's action. I do not credit David Murray's further called that the opening of the June 24 session concerned
testimony that Bennett then said that the parties had "an the question of the Company's desire for assurances pro-
agreement." I do, however, credit Volpe's testimony that tecting the employees who crossed the picket line during
at the June 24 meeting the Union told Respondent that, the strike; and that, after the Union rejected Bennett's
in the intervening week since the June 17 meeting, the suggestions both of an agency shop and of a secondary
union committee had met with the employee-members variation requiring a union shop following 1 year of an
and that the members would not cause problems with re- agency shop, Bennett said that the Union had also reject-
prisals against members who had crossed the picket line. ed an intermediate position taken during the period be-
This substantially corroborates David Murray's testimo- tween the collective-bargaining sessions (of a $25 fine for
ny that at one point Bennett said that he agreed that the members who had crossed the picket line) and that it
Union had done everything possible and that he under- now seemed to him that the Union actually did want to
stood and approved of the Union's conduct with regard take retaliation against those members who had crossed
to gaining as much as possible from the membership with the picket line during the strike. Ullrich then added that
regard to an assurance and agreement against the filing Respondent was in the business of selling bread "not
of retaliatory charges by union members against those people."
who crossed the picket line. Hefford and Ullrich denied that any "pick and
According to the General Counsel's witnesses, particu- choose" statement was ever made by Respondent, that
larly David Murray, Volpe, and International Union Respondent ever expressed the desire to pick and choose
Representative Thibodeau (who on June 24 had replaced from among returning strikers, and that seniority among
McLellan), Bennett then said, after hearing union assur- returning picketers was ever discussed; and both assert
ances (there would be no trouble from the union mem- that the meeting broke up only after the Union could not
bership in filing charges against members who had give assurances to Respondent against retaliation or retri-
crossed the picket line), that in order to help insure the bution against members who had crossed the picket line.4
protection of employees who had crossed the picket line
from retaliation by individual members Respondent re- 4 To the extent Respondent asserts (br., p. 4) that at the June 24 session
quired the right to "pick and choose" from among the Respondent stated that the issue of union reprisals against nonstriking em-ployees who returned to work was no longer in issue, such assertion is
returning striking employees since some of the strikers not supported by the evidence and is rejected. Similarly rejected is Re-
were responsible for alleged acts of violence and intimi- Continued
, t
t i t li l it r il i had et ith the unit e ployees regarding the
i t li t i t. i l it , i
l t. ie a t at espondent anted to pick and choose
t t . r ft r, tt fr t se stri ers ho returned. olpe recalled
'
t ll t r i tit - t t t, t t t e eeti broke up, and that the bargain-
i
. i t l t t t it l a li a e et ee the alleged violence and espond-
' . ,
t li ti t t
it t t t i -
i t i l i ti i ti .
.
'
,

'
e d
t h e
n o w

t h e n e . ll i t t t
,
4
4 .
ir t ri t t " i and choose" fro a ong the Respondent stated that the issue of union reprisals against nonstriking cm-l r t r t l i i , w rti i
Si O ,

782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ullrich testified that the only statement remotely con- 10 economic strike into an unfair labor practice strike
cerning "picking and choosing" was made at the June 17 upon Respondent's insistence on such conditions.
meeting when he said that, if Respondent caught any of Thus, the resolution of the question of whether the
its employees engaging in violence or intimidation, Re- parties agreed to Respondent's 30-cent-per-hour econom-
spondent would prosecute such employees and they ic package or, indeed, whether the Union agreed to
would then have a hard time returning to work for Re- submit to its membership the 30-cent-per-hour package
spondent. with a recommendation for acceptance (as the General
Thus, Hefford and Ullrich denied that any "pick and Counsel suggests) or with a neutural recommendation (as
choose" condition was attached to any agreement. Respondent argues) is not dispositive. The question to be
Rather, Ullrich and Hefford testified that the June 24 resolved with regard to Respondent's bargaining stance
collective-bargaining session broke up because and after is solely whether it refused to bargain within the mean-
Bennett asserted that the Union evidently desired to take ing of Section 8(a)(5) of the Act by insisting on either or
retaliation against the members who had passed through both of the elements alleged in paragraph 13 of the com-
the picket line and Ullrich said that Respondent sold plaint, as set forth above.
bread and not people. They thus deny not only that there I R's i r i -
was a "pick and choose" condition attached by them If Respondent's witnesses are to be believed, Respond-as a " ic and choose" condition attached by the ent's main bargaining issue and problem was its desire
after reaching an agreement on union retaliation (as the ent's man arainin issue and problem was its desire
for, and demand to receive, assurances from the UnionGeneral Counsel's witnesses testified), but also that there that there wod be no r etaliation against the Unon
was any agreement on retaliation. They testified that the e r w o d e t n ginst the n
June 24 session broke up only because of the Union's re- embers who had assed through its picket line and
fusal to give assurances from its members that there worked during the strike. These assurances were of two
would be no retaliation against the members who had types: () assurances with regard to their physical safety
passed through the picket line and worked during the and (2) assurances that Respondent would neither levy
strike. fines against them nor cause them to lose union member-
ship, nor, in any event, exercise any rights to have them
4. Discussion and conclusions discharged or retaliated against so that the employees
would either quit or no longer be able to work for Re-The complaint (par. 13) alleges a violation of Section spondent. Thus, Hefford and Ullrich insisted that Re-
8(a)(5) of the Act because Respondent, on or about June spondent and the Unin cld nt are n te
24, 1980, demanded as conditions of agreement that (I) spo n d en an d th e n o n c o u l n o t ag ree o n t h e n o nth24, 19, demanded as conditions of agreement that (m ) ability to give sufficient assurances against retaliation
the Union agree not to take reprisals against union mem- against the union members who had worked during the
bers who did not honor the picket line, and (2) Respond- te uon ebr wohd oed dstrike and continue to work for Respondent.ent be given power to choose the striking employees
who would be allowed to return to work. In addition Since the Union denied knowledge of and responsibili-
the complaint, as amended at the hearing, alleges that the ty for the act of alleged violence and intimidation, and
economic strike of June 10 was converted, on June 24, Respondent, apart from physical safety, was most con-
1980, by Respondent's demand for the imposition of the cerned about (1) the filing of charges by union members
aforesaid conditions, into an unfair labor practice strike. which might result in fines against key personnel who
At the hearing the parties appeared to take the posi- might then leave Respondent's employ and (2) the power
tion that in order to resolve the above issues it was nec- of the Union to cause key personnel to lose union mem-
essary to first decide whether the parties had reached an bership and perhaps thereby run afoul of the contract's
agreement on an economic package, and, if so, whether union-security clause (G.C. Exh. 2, art. I) requiring
such an agreement established a basis for violation of the union membership as a condition of employment, I con-
Act if the only remaining elements at issue were the dude that what caused impasse here was the Union's in-
questions of a union guarantee against reprisals and al- ability to satisfy Respondent's desires with regard to pro-
leged demand by Respondent of a right to pick and tecting its key personnel from retaliatory action by the
choose from among returning striking employees. The union membership. Thus, Ullrich testified, with regard to
Board precedents fail to suggest that an agreement on Respondent's demand that the "key personnel" be pro-
some or all economic or other elements is necessary in tected, that on June 24 Attorney Bennett said that the
order to establish an 8(a)(5) violation. Union's rejection of both the "agency-shop device" and
The instant case is not concerned with surface bargain- the "small fine device" forced Bennett to affirmatively
ing, unlawful action to forestall reaching an agreement, conclude that the Union did want to take retaliation
or alleged overall bad-faith bargaining in violation of against the members who had worked behind the picket
Section 8(a)(5). Rather, it is concerned with the narrow line. Thus, after Ullrich said that Respondent sold bread
problem of whether Respondent unlawfully insisted to and not people, the parties left and there were no further
"impasse" on matters which Sections 8(a)(5) and 8(d) of bargaining sessions or meetings.
the Act do not permit to form the basis of an "impasse" Respondent's demand as a condition of agreement that
and whether such tactic on June 24 converted the June the Union, in substance, guarantee by contract provision
that its members would not take action or file charges
spondent's contention (br., p. 5) that impasse resulted from Respondent's which would result in discipline, including fines, of the
insistence on a new union-security clause in the contract. Respondent, in members who crossed the picket line and worked (and
any event, appears to admit (br., p. 19) that it insisted on a guarantee
against reprisals binding on all union members as a condition of agree- continue to work) for Respondent, obviously related to
ment. Alone, impasse on such an issue is unlawful, matters of internal union affairs. The Board has clearly
would thn have ahard tim returnig to wor for Re- submit t its memership te 30-cen-per-hou-packag
'
, t
t
t l
i i l t ) it t r l r ti (
iti t i t i iti . ti t
r ti l i i
ll ti - r ini g i ft i l l t it f t i i i t
tt rt t t t i i tl ir t t i f ti ( )( ) t i i i i
r t li ti i t t r t r t f t l t ll i t
li i t l , t f t .
r t l . t t l t t t f sne' we a to be beli Reo-
w "pi k " iti tt t m ^^"dent s witnes es are to be believed, Respond-
ft r r i r t i r t li ti ( t fe n tr s m al ndemand to rs u r l it ir
r l itnes ti at t erwo d o r e tal ito i
r t r t li ti . t tifi t t t t h a t t h r e u l b no ret a lh at uo a ainst t U ion's
i r l f t i ' r - l em b er s w h o h ad P t r it i t li
f s l t i assurances fr its e bers t t t r r ri the strik . s assurances ere f t
l be r t li ti i st t e bers had apnd (2) assurances it r r t t ir ysic l safety
t i an
(l W t l it r l
psrike.
ne s i t t t l i r-
i
i i l i t
The complaint (par. 13) alleges a violation of Section l it r it l l t -
of\e\ copan pr.i- . n3 alle a vaion of Seti spondent. Thus, Hefford and Ullrich insisted that Re-
. T Hef r a Ur i tha Re-
24, 1980, de anded as c iti s f agree ent that (1) s
p o n de n t an d th e Uni o n c o u ld n o t ag r ee o n t h e Unio n 's
24,190, a cndtios f aremet tat(I ability to give sufficient assurances against retaliation
l i a t e e adw se rin t
r i t r t i t li , (2) s - strik ead o n wo r k f or R ond ent.
t i r t t tri i l and t ontdnied knor ofsp ndenb
l ll t r t r t rk. In addition, Since the nion denied knowledge of and responsibili-
the c l i t, as a ended at the hearing, alleges t t the t y f o r th e a c t pr o f rm ph ynce and i ti i ti , and
i 4,Responde , rt i l f t ,
, ' i c e r n
e d ab o u t t h e rili o f u o n
i i , i w h ic h r es u l t i
n fi n e s i t l
t h l e a v e '
o f t h e o n

c lu d e

. ) l i i li e, i i ,
i i t a i -s c rity clause in the contract. Respondent, in e bers who Crossed the picket line and worked (and
.
t, l t
l ful,.matters
'
t ec i
a l l ege d n
i
c
t i
l i
COTE BROS. BAKERY, INC. 783
held that internal union affairs are not mandatory sub- against the members who had passed through the picket
jects of bargaining s included within the terms, wages, line, although not a guarantee, were understood by Ben-
hours, or other terms or conditions of employment. nett and acceptable by him. They also testified that Ben-
While not illegal subjects of bargaining, they are merely nett said that there was a further problem, however, in
"nonmandatory" subjects of bargaining. Nordstorm, Inc., that Respondent insisted on the right to pick and choose
supra; Fetzer Broadcasting Company, 227 NLRB 1377, from among the remaining striking employees for the ex-
1387 (1977). An employer may not insist that a union isting jobs in their return to work.
accept provisions which intrude on the disciplinary Insistence to impasse on such a right would violate
powers over its members expressly reserved to unions by Section 8(a)(5) of the Act since many, if not most, of the
the proviso to Section 8(b)(l)(A) of the Act.6 Independ- strikers apparently had not been permanently replaced as
ent Stave Company, 175 NLRB 156, 159 (1969). In Nord- of June 24 and were unfair labor practice strikers. While
storm, Inc., supra, the Board held that a proposal that the issue of reinstatement of economic strikers may be a
employees who crossed the picket line be granted amnes- mandatory subject of bargaining (Nordstrom, Inc., supra
ty from union discipline was a nonmandatory subject of at 610, fn. 16, citing Pepsi-Cola Bottling Co. of Miami,
bargaining. Inc., 186 NLRB 477 (1970); Midwestern Instruments, Inc.,
Thus, if Respondent's witnesses' version of the basis for 133 NLRB 1132, 1141 (1961)), here some of the strikers
disagreement and the breakup of bargaining at the June appear to be unfair labor practice strikers. If an agree-
24 collective-bargaining session is credited, the parties ment to treat unfair labor practice strikers as economic
reached disagreement, and ceased thereafter to bargain, strikers for purposes of reinstatement is of no effect and
on the Union's refusal to accede to Respondent's demand is in derogation of the strikers' rights and contravenes
that the Union agree that there would be no union retri- Board policies (Nordstrom, Inc., supra, Wooster Division of
bution from its members against the members who had Borg-Warner Corp., 121 NLRB 1492, 1495 (1958)), then
crossed the picket line. Under the above cited cases, Re- an employer's demand to impasse that it be accorded the
spondent's insistence on such a clause relates to a non- right unilaterally to decide whom to reinstate from
mandatory subject of bargaining, and insistence to im- among unfair labor practice strikers would be insisting
passe, as here, on such a nonmandatory subject of bar- on a right the Union may not give; i.e., an unlawful con-
gaining violates Section 8(a)(5) of the Act.' As I have dition under N.L.R.B. v. Wooster Division of Borg-Warner
said above, it is immaterial whether the parties had Corp., spra. Insistence to impasse on such a demand
reached agreement on other mandatory subjects of bar- would violate Section 8(a)(1) and (5) of the Act.
gaining. Respondent's insistence, as a condition of agree- As above noted, however, I need not reach or decide
ment, upon the Union's agreeing to a nonmandatory sub- this issue since the remedy would be the same if agree-
ject of bargaining violates Section 8(a)(5) and (1) of the ment were reached on the issue of union retaliation but a
Act. I will recommend that Respondent cease bargaining new impasse occurred on Respondent's alleged demand
to impasse on this, and any other nonmandatory issue. of unilateral power to pick and choose among returning
It is thus, it seems to me, legally unnecessary for reme- strikers.
dial purposes to reach or decide the further question
posed by any crediting of the General Counsel's wit- F. The Strike as of June 24, 1980
nesses who testified that on June 24 agreement was
reached on the issue of retaliation when Respondent, As above noted, I regard as immaterial and, in any
through Respondent's attorney, Bennett, said that the case, not dispositive the resolution of the question wheth-
Union's efforts in having its members not make charges er the parties had reached agreement on many or,
indeed, all other subjects of bargaining on June 24. The
issue with regard to the conversion of the admitted JuneMandatory subjects of bargaining (Nordstorm, Inc., 229 NLRB 601, w r t
609 (1977), citing International Union of Operating Engineers. Local Union 10 economic strike into an unfair labor practice strike on
No 12 (Associated General Contractors of America, Inc., etc.), 187 NLRB June 24 is whether unfair labor practices on June 24 pre-
430, 432 (1970)) "are those comprised in the phrase 'wages, hours, and cipitated, in whole or in part, the continuation of the
other terms and conditions of employment' as set forth in Section 8(d) of strike. Again, it is not a question of whether there were
the Act. While the language is broad, parameters have been established,
although not quantified. The touchstone is whether . . the proposed open issues involving mandatory subjects of bargaining
clause sets a term or condition of employment or regulates the relation which remained unsettled; rather, the issue is whether
between the employer and its employees." Cf. First National Maintenance Respondent's insistence upon nonmandatory (or unlaw-
Corp. v. N.LR.B., 452 U.S. 666(1981). ful) subjects of bargaining, in whole or in part, caused
* The proviso to Sec. 8(b)(IXA) states: "[T]his paragraph shall not
impair the right of a labor organization to prescribe its own rules with the continuation of the strike. Tufts Brothers, Inc., 235
respect to the acquisition or retention of membership therein." NLRB 808, 810 (1978). While it might be argued that
' The Supreme Court, in N.LR.B. v. Wooster Division of Borg-Warner there was no agreement on the economic package, there
Corp., 356 U.S. 342, 349 (1958), cited in Nordstrom, Inc., supra. at 609: is no question that the economic package appeared on its
[G]ood faith does not license the employer to refuse to enter into way to resolution and, indeed, would have been submit-
agreements on the ground that they do not include some proposal
which is not a mandatory subject of bargaining .... (S]uch con- ted to the unit by the union representatives (according to
duct is, in substance, a refusal to bargain about the subjects that are Respondent's witnesses, without the union's recommen-
within the scope of mandatory bargaining. This does not mean that dation, by a secret-ballot vote, which procedure was sat-
bargaining is to be confined to the statutory subjects .... But it isfactory to Respondent). What caused the breakup of
does not follow that, because the company may propose these [nonman-
datory] clauses. it can lawfully insist upon them as a condition to any the June 24 collective-bargaining session and the continu-
agreement. [Emphasis supplied. ation of the strike was Respondent's insistence (on the
,
'

l .
li . i,
I ., .,
' t i , 1141 (1961)), ere s e f the strikers

str , : t i i i f
,
' it t
i t t
.'
, ., upra
ti l
i i . t' i i t , iti r i
t, t i ' r i t t r - i i i l if
j t f r i i i l t ti ( )( ) i li ti
t. I ill t t t i i '
t i ss t i , t r t ry i . il t l t i
f r r - strikers.
. ,
A s a b o v I i t i l , i
c a se ,
e r t r,
~~," ,. ,. . ,., , , ,-,,.„ nn „» d te e
'Mandatory ,, i d t c o t a Jn
ing r . Stri i Stri
. r l A eric , c .), ctic
s
t r t r iti f l t' as set f rt in ection 8(d) of stri e. gain, it is not a question f hether there were
w i
i tif . t r i i
t e ,
i l ce U
rp. ., (1 . i
I l [11 i l t
Stri

I . t i
., . . , ( ), it i r tro , Inc., supra. at 609: is no question that the econo ic package appeared on its
Oo f it t li t l r t r f s t t r i t t r l ti and, indeed, l have been sub it-
l
t r j t i i i t ti r i

Se r t
t t t bjects ... t iit i f t r t s t). at caused the breakup of
s se
] , lly i i i ti -
t. plied.])ation t
e
. ter ision
., str , ti
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence adduced from its own witnesses) on the Union's 4. By insisting to impasse on a nonmandatory subject
agreeing, as a condition to overall agreement, to have its of bargaining on June 24, 1980, Respondent violated Sec-
members not seek or engage in any disciplinary acts or tion 8(a)(5) of the Act.
charges against the members who worked, and continue 5. By unlawfully insisting to impasse, on June 24, 1980,
to work, for Respondent during the strike and who had on a nonmandatory subject of bargaining, Respondent
passed through the picket line. I have concluded that thereby and then converted the economic strike, which
such insistence was unlawful within the meaning of Sec- commenced on June 10, 1980, into an unfair labor prac-
tion 8(a)(5) since Respondent was insisting to impasse on tice strike.
a mere permissible bargaining subject (N.L.R.B. v. Woos- 6. The above unfair labor practices are unfair labor
ter Division of Borg-Warner Corp., supra at 350; Nord- practices affecting commerce within the meaning of Sec-
strom, Inc., supra at 609; Independent Stave Co., supra at tion 2(6) and (7) of the Act.
159); and I further conclude that Respondent's insistence
to impasse on this nonmandatory subject of bargaining THE REMEDY
was the predominant, if not the entire, cause of the con- The General Counsel concedes that there is no mone-
tinuation of the 15 strike on and after June 24, 1980. tary loss involved in this case. The parties agree that the
N.L.R.B. v. Laredo Coca Cola Bottling Company, 613 strike, which originated on June 10, 1980, is still in prog-
F.2d 1338 (5th Cir. 1980); Latrobe Steel Company, 244 ress and that the Union and the striking employees, as of
NLRB 528 (1979). Again, I would reach the same con- the time of the hearing, have failed to offer uncondition-
clusion if the General Counsel's witnesses were credited: ally to return to their jobs.
that the collective-bargaining session of June 24 failed Having found that Respondent is engaged in certain
because of Respondent's insistence to impasse on a right unfair labor practices within the meaning of Section
to pick and choose among the striking employees (who, 8(a)(l) and (5) of the Act, Respondent will be ordered to
after June 24, were unfair labor practice strikers) con- cease and desist therefrom and to take certain affirmative
cerning their return to jobs with Respondent. Nordstrom, action designed to effectuate the policies of the Act.
Inc., supra at 609, citing Wooster Division of Borg-Warner The remedies herein will relate, inter alia, to the em-
Corp., supra at 1495. I might note, in passing, that regard- ployees engaged in an economic strike from June 10
less of whether the right to pick and choose from among through June 23, 1980. With regard to the period June
returning economic strikers is a mandatory subject of bar- 10 through June 23, 1980, the record is unclear concern-
gaining (especially including the method and means by ing how many employees crossed the picket line and re-
which they are returned to jobs), where the number of turned to work, when and for which jobs permanent re-
jobs available is less than the number of outstanding placements were hired, how many jobs remained availa-
striking employees (cf. Nelson Filter, a Division of Nelson ble for the strikers in the period ending June 23, 1980,
Industries, Inc., 255 NLRB 131 (1981); United Aircraft and which, if any, jobs were abolished. The determina-
Corporation (Pratt and Whitney Division), 192 NLRB 382 tion of such matters is better left to the compliance stage
(1971)), what respondent here was insisting upon was not of the proceeding. Marlene Industries Corporation, et al.,
an agreement and schedule with regard to picking and 255 NLRB 1446 (1981). In any event, the rights of the
choosing and was not bargaining towards such an agree- economic strikers whose jobs were filled by permanent
ment, but was (to impasse) the unilateral right to do so. replacements between June 10 and 23 are governed by
Such a position, not bargaining, would from the outset the Board's rule in The Laidlaw Corporation, 171 NLRB
arrogate to Respondent the sole right to pick and choose 1366 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert.
from among striking employees. Such conduct would be denied 397 U.S. 920 (1970). In restating the Laidlaw rule,
the arrogation to itself of the power concerning a subject in Giddings & Lewis, Inc., 255 NLRB 742 (1981), the
(return of striking employees to their jobs) which the Board declared that economic strikers who uncondition-
Union was vitally involved in. Such conduct, as I have ally apply for reinstatement are to be reinstated; but,
suggested, likewise would have violated Section 8(a)(5) when their positions are filled by permanent replace-
of the Act if the issue were actually reached. ments, they are entitled to full reinstatement either upon
the departure of the permanent replacements or when
CONCLUSIONS OF LAW jobs for which they are otherwise qualified become
available (Flatiron Paving Company, d/b/a Flatiron Mate-
1. Respondent Cote Bros. Bakery, Inc., is an employer rils Company, 250 NLRB 554 (1980)), unless they have
within the meaning of Section 2(2), (6), and (7) of the in the meantime acquired other regular and substantially
Act. equivalent employment or the employer can sustain its
2. Local 348, Bakery, Confectionery and Tobacco burden of proof that the failure to offer reinstatement
Workers International Union of America, AFL-CIO, is a was for legitimate and substantial business reasons. It will
labor organization within the meaning of Section 2(5) of therefore be recommended that, upon these economic
the Act. strikers' or the Union's (in their behalf) making an un-
3. By telling employees engaged in an economic strike, conditional offer to return to their old jobs, Respondent
or or about June 10 or 11, 1980, that they were offer them their old jobs; but to such strikers whose jobs
"through" if they did not return to work and abandon were permanently filled on or prior to June 23, 1980,
the strike, Respondent violated Section 8(a)(l) of the their rights to jobs in the bakery will be subject to the
Act. above rights, conditions, and limitations.
.
. .
t

t i t, if t t tir , f t c - eneral ounsel concedes that there is no one-
.
. . l i , t till
t t t i t t i i l , f
). , il t iti

i i t i
t i ti
) t
r i s r i ill relate, i t r li , t t e e -

,
);
,
). i
,

. t t . , I ., i l ials , , l
i i i ti ) ti i l t nti ll
c t

.
)(l)
T HE
COTE BROS. BAKERY, INC. 785
With regard to the striking employees whose jobs I. Cease and desist from:
were not filled by permanent replacements on and before (a) Threatening its employees with discharge by telling
June 23, 1980, or whose jobs were not abolished in that them that they are "through" if they do not return to
period, or, in any case, where jobs for which they are work and abandon a lawful economic strike.
qualified have become available after any such perma- (b) Refusing to bargain in good faith with Local 348,
nent replacement or abolition, I will recommend that Bakery, Confectionery and Tobacco Workers Interna-
their rights be governed by the rules relating to the rein- tional Union of America, AFL-CIO, by insisting to bar-
statement of unfair labor practice strikers. Cf. Nelson gaining impasse upon amnesty from union discipline for
Filter, a Division of Nelson Industries, Inc., supra; Latrobe employees who are members of the Union who crossed
Steel Co., supra. Thus, any permanent replacements hired the Union's picket line and worked during a lawful
on and after June 24, 1980, or any new hires for jobs strike, or upon any other nonmandatory subject of bar-
which were opened commencing on that date for which gaining, in the following appropriate unit:
the strikers were qualified, must be dismissed for the Bakery Production Department, Porters, Plant
benefit of any striker who makes an unconditional offerMaintenance and Shipping Departments, excludingMaintenance and Shipping Departments, excluding
for reinstatement to his old job which job, as aboveExecutives, office and clerical employees, guards
noted, was not filled before June 24, 1980, when the eco- professional employees, and supervisors as defined
nomic strike ceased. Thus, I shall recommend to the in the Act.
Board that, upon the Union's or the employees' offer un-
conditionally to abandon the strike and return to their (c) In any like or related manner interfering with, re-
old jobs, Respondent shall reinstate and recall the for- straining, or coercing employees in the exercise of the
merly striking employees to their old jobs, or to vacan- rights guaranteed them in Section 7 of the Act.
cies in jobs for which the strikers are qualified, dismiss- 2. Take the following affirmative action necessary to
ing, if necessary, any employees incumbent in those jobs effectuate the policies of the Act:
who were hired on or after June 24, 1980. (a) Upon request, bargain collectively in good faith
The Board's rule also requires that unfair labor prac- with the Union, as the exclusive collective-bargaining
tice strikers be made whole for any loss of earnings they representative of all its employees in the above-noted ap-
may have suffered as a result of Respondent's refusal, if propriate unit, with respect to wages, hours, and other
any, to reinstate them in a timely fashion by paying to terms and conditions of employment, and embody any
each of them that which he would have earned as wages understanding reached in a signed agreement.
in the period commencing 5 days after the date on which (b) Upon their unconditional offer to return to work,
each unconditionally offers to return to work to the date reinstate the strikers to their old jobs, dismissing, if nec-
of Respondent's offer of reinstatement, less any net earn- essary, any replacements hired in their place, except
ings during such period, said backpay to be computed in where such replacements occurred before June 24, 1980,
the manner prescribed in F. W. Woolworth Company, 90 and make them whole for any loss of earnings that they
NLRB 289 (1950), with interest thereon to be computed may incur in the manner set forth in the section of this
in the manner prescribed in Florida Steel Corporation, 231 Decision entitled "The Remedy." Striking employees
NLRB 651 (1977). See, generally, Isis Plumbing & Heat- w h o were permanently replaced or who se jobs were
ing Co., 138 NLRB 716 (1962). abolished before June 24, 1980, shall be offered jobs
The Board's further rule is that if Respondent has al- when and if the permanent replacements leave, or whenThe Board's further rule is that if Respondent has al- become available for which they are qualified.positions become available for which they are qualified.
ready rejected, or hereafter rejects, unduly delays, or ig- (c) Preserve and, upon request, make available to the
nores, any unconditional offer by employees to return to Board or its agents, for examination and copying, all
work, or attaches unlawful conditions to its offer of rein- payroll records, social security records, senior-
statement, the above 5-day period serves no useful pur- ity records, timecards, collective-bargaining agreements,
pose, and backpay will commence as of the uncondition- personnel records and reports, and all other records nec-
al offer to return to work. Newport News Shipbuilding essary to analyze the basis for the reinstatement of eco-
and Dry Dock Company, 236 NLRB 1637 (1978). nomic and unfair labor practice strikers and the amount
Upon the foregoing findings of fact, conclusions of of backpay, if any, due under the terms of this recom-
law, and the entire record, and pursuant to Section 10(c) mended Order.
of the Act, I hereby issue the following recommended: (d) Post at its plant at 87 Elm Street, Manchester,
New Hampshire, copies of the attached notice marked
ORDERB "Appendix." 9 Copies of said notice, on forms provided
The Respondent, Cote Bros. Bakery, Inc., Manchester, by the Regional Director for Region 1, after being duly
New Hampshire, its officers, agents, successors, and as- signed by Respondent's authorized representative, shall
signs, shall: be posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive days
i In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find- In the event that this Order is enforced by a Judgment of a United
ings, conclusions, and recommended Order herein shall, as provided in States Court of Appeals, the words in the notice reading "Posted by
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and Order of the National Labor Relations Board" shall read "Posted Pursu-
become its findings, conclusions, and Order, and all objections thereto ant to a Judgment of the United States Court of Appeals Enforcing an
shall be deemed waived for all purposes. Order of the National Labor Relations Board."
1.
i
t t i li i ,
it t i iti l f erMainten nce i i t t , l i
f r i t t t t boveEx cutives,
I ll r to the in the Act.

.
t e r m s a n d
t h
a r , , t
w h e r e , ,
a n d m
a k e t h e m w h o le f o r lo s s o f t
( ), it i t t
m a y n c u r t h e
in t e r r ri i l i t l ti ,
D e c i o n e n t it le d T h e
. r l i - l s j r
i ., ( ). li f r , , ll ff r j
rule is t - ,when f
oard s further rule is that if espondent has al- siti s il l li .
r r j t , r r ft r j t , l l , i
r , iti l ff r l t t i ti i l
l f l i i rl d, ,ca uy p i
t t t, t i f l r ini g
i iti l ll
l i ing l i t
, i

" "
s t, t r . r , ., ,
' t i r r t ti , s all
si s, s all:
t r f, i t i
' fil r i . 102.46 f the
r
s t r i k
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter, in conspicuous places, including all places IT IS FURTHER ORDERED that the complaint be, and it
where notices to employees are customarily posted. Rea- hereby is, dismissed insofar as it alleges violations of the
sonable steps shall be taken by Respondent to insure that Act not specifically found herein.' 0
said notices are not altered, defaced, or covered by any
other material. Hampshire; Respondent has apparently ceased operations and will not
(e) Notify the Regional Director for Region 1, in writ- resume operations; Respondent's employees were terminated effective
ing, within 20 days from the date of this Order, what June 13, 1981, without any possibility of returning to their former jobs;
steps Respondent has taken to comply herewith. no meaningful remedy can now be granted; and further proceedings
would be vain, costly, and contrary to the purpose of the Act and the
powers of the Board.
" Bearing the date of June 26, 1981, Respondent filed aost-trial Respondent's motion is hereby denied. The matters alleged in the
motion, supported by an annexed affidavit of the same date (herein AL motion and affidavit are not part of the record in this case, as defined by
Exh. I) by its attorney, Peter R. Kraft, Esq., to dismiss the consolidated Sec. 102.45(b) of the Board's Rules and Regulations, Series 8, as amend-
complaint on the grounds that, effective June 13, 1981 (subsequent to the ed, and are not properly before me. Moreover, the issues raised by Re-
close of the record herein), Respondent's assets have been taken over and spondent's allegations are for the compliance stage of this proceeding.
are being liquidated by Indian Head National Bank of Nashua, New See S Freedman Electric Inc., 256 NLRB 432, fn. 1 (1981).

1
Ot
J u n 13 19 8 1'
t t t t l r it . no eaningful remedy can now be grant ed; and fur ther proceedings
"0 t l pos -trial
d n
t
's o
l
f it I f it n , f
n 1) , l ' l ti , ,
l i f ti rl
i t' t l ti i .
i i l . . ).
te rt r