Golden Eagle Spotting Co.

National Labor Relations Board - Board Decisions

Sep 27, 1995

319 N.L.R.B. 64 (N.L.R.B. 1995)

64
319 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent’s exceptions are limited to the judge’s findings
that it violated Sec. 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl and (fiMDBUfl
tions unilaterally and by engaging in regressive bargaining with re-
spect to union security.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Drywall Products, 91 NLRB 544 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*ERR17*fiMDNMfl, enfd. 188
F.2d 362 (fiMDBUfl*ERR17*fiMDNMfl3d Cir. 1951)fiMDBUfl*ERR17*fiMDNMfl. We have carefully examined the record and
find no basis for reversing the findings.
Golden Eagle Spotting Co., Inc. and Brewery Driv-
ers and Helpers, Local Union 133, affiliated
with International Brotherhood of Teamsters,
AFL–CIO. Case 14–CA–23333
September 27, 1995
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND TRUESDALE
On June 6, 1995, Administrative Law Judge Frank
H. Itkin issued the attached decision. The Respondent
filed exceptions1 and the Charging Party filed an an-
swering brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Golden Eagle Spotting Co.,
Inc., Hannibal, Missouri, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
Order.
Lynette K. Zuch, Esq., for the General Counsel.
Timothy L. Stalnaker, Esq., for the Respondent Employer.
Jan Bond, Esq., for the Charging Party Union.
DECISION
FRANK H. ITKIN, Administrative Law Judge. Unfair labor
practice charges and amended charges were filed in the
above case on November 15 and December 30, 1994, and on
January 26, 1995. An amended complaint issued on February
9, 1995, and was later further amended on March 3 and at
the hearing on March 6, 1995. The General Counsel alleged
that Respondent Employer has interfered with, restrained,
and coerced its employees in the exercise of their Section 7
rights, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17
Relations Act, by informing employees that the Employer
would not bargain in good faith with the Union, the duly cer-
tified collective-bargaining agent of an appropriate unit of its
employees, and that the Union’s bargaining with the Em-
ployer would be futile; by informing employees that the Em-
ployer would not bargain in good faith with the Union con-
cerning employee wages; by threatening to discharge em-
ployees if they went on strike; by telling employees that sup-
porting the Union was disloyal to the Employer; by promis-
ing to grant employees wage raises even if they were not
represented by the Union; and by threatening an employee
with physical harm or other reprisals because of the employ-
ee’s union activities.
The General Counsel further alleged that Respondent Em-
ployer has failed and refused to bargain in good faith with
the Union as the exclusive collective-bargaining representa-
tive of an appropriate unit of its employees, in violation of
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBU
three unit positions by promoting shift leaders to newly cre-
ated supervisory positions excluded from the unit and, fur-
ther, by implementing a safety and attendance bonus program
for the unit employees, without prior notice to the Union and
affording the Union an opportunity to bargain with respect
to this conduct or the effects of this conduct; by failing to
meet with the Union at reasonable times and, further, by ar-
riving late and leaving earlier than the agreed-on times at
scheduled negotiation sessions; by engaging in regressive
bargaining withdrawing prior agreements with respect to
union security and drug-testing proposals; by making propos-
als regarding the grievance procedure and changes in em-
ployee wages which grant the Employer the exclusive right
to determine the outcome of grievances and wage changes;
by its overall conduct during collective bargaining; and, fi-
nally, by implementing its final offer which made changes in
employment conditions including but not limited to wages,
the grievance procedure, layoff and recall, and a mandatory
alcohol and drug-testing policy for unit employees, without
reaching impasse on these issues, without the Union’s con-
sent and without affording the Union an adequate oppor-
tunity to bargain with the Employer with respect to this con-
duct.
Respondent Employer denies, inter alia, violating the Act
as alleged. Accordingly, hearings were held on the issues
thus raised in St. Louis, Missouri, on March 6 and 7, 1995,
and on the entire record, including my observation of the de-
meanor of the witnesses, I make the following
FINDINGS OF FACT
Respondent Employer is engaged in the spotting and su-
pervision of the loading of beer products on distributor and
common carrier trailers and is admittedly engaged in com-
merce as alleged. Charging Party Union is admittedly a labor
organization as alleged. On December 20, 1993, the Union,
following a Board-conducted representation election, was
certified as the exclusive collective-bargaining representative
for the following appropriate unit of the Employer’s employ-
ees:
All full time and regular part time spotting/drivers and
loading employees employed by Respondent at its St.
Louis, Missouri facility, excluding office clerical and
professional employees, guards and supervisors as de-
fined in the Act.
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65GOLDEN EAGLE SPOTTING CO.
Gary Scott, secretary-treasurer for the Union, testified that
on December 13, 1993, following the Board-conducted rep-
resentation election, he notified Company President Richard
Riesenbeck in writing, ‘‘request[ing] that your Company
promptly commence negotiations with [the Union] on a labor
agreement to cover all employees in the bargaining unit.’’
(fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 4.)fiMDBUfl*ERR17*fiMDNMfl Riesenbeck responded on December 30,
1993. (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 5.)fiMDBUfl*ERR17*fiMDNMfl The parties thereafter met some 11
times during 1994. The pertinent evidence is summarized
below.
I. THE JANUARY 27 MEETING
The parties first met on January 27. Union Secretary-
Treasurer Scott, accompanied by Union President Dudley
Alsop, attended this meeting for the Union. Company Presi-
dent Riesenbeck attended for the Employer. Scott explained
that the purpose of this meeting ‘‘was to set up future bar-
gaining . . . and how the process was going to take place.’’
Scott recalled:
Riesenbeck asked me if it would be permissible with
me to negotiate on Thursday evenings and during the
day on Friday because he was going to have his con-
sultant, [Kenneth] Smelcer, who was going to have to
travel from Iowa and it would make it convenient for
him. I told him, I am willing and ready to negotiate any
time and any place.
II. THE MARCH 25 MEETING
The next meeting was held, as scheduled, on March 25.
Scott and Alsop attended for the Union. Riesenbeck, accom-
panied by his general manager, Michael Summers, attended
for the Employer. Scott, as he testified, then gave the Em-
ployer ‘‘copies of a complete contract proposal.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C.
Exh. 6.)fiMDBUfl*ERR17*fiMDNMfl The Employer, in turn, gave the Union its ‘‘Em-
ployee Manual.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 7.)fiMDBUfl*ERR17*fiMDNMfl Scott recalled:
[W]e . . . didn’t go through the [Union’s] contract pro-
posal because . . . Riesenbeck had indicated to me
. . . he didn’t want to begin bargaining without his
consultant, Smelcer.
The parties ‘‘agreed to a further bargaining date’’ at 1:30
p.m. on April 8, and Riesenbeck ‘‘was going to bring his
consultant with him at that time.’’ Scott identified General
Counsel’s Exhibit 8 as his bargaining notes for this and later
bargaining sessions.
Scott noted that the scheduled April 8 bargaining session
‘‘was not held’’ because ‘‘the Company called and can-
celed.’’ This meeting was then rescheduled to 1:30 p.m. on
April 15.
III. THE APRIL 15 MEETING
The April 15 meeting was, as noted, scheduled to start at
1:30 p.m. Scott testified that Company Representatives
Riesenbeck and Summers arrived ‘‘shortly thereafter.’’ Scott
recalled:
I [Scott] asked if they had brought their representative
with them or if he was on his way. Riesenbeck said,
no, he could not make it . . . he was closing on his
house . . . he could make it the following week.
Scott had not ‘‘been advised of this before going to this
meeting.’’ The parties then set the next meeting for 6 p.m.
on April 21.
Scott testified:
Well, at that particular time, . . . since the Company
had the Union’s proposal [G.C. Exh. 6] for over two
weeks, we started to go through the proposal to see if
the Company had any questions with anything or if we
could start putting some of these items to bed.
Scott recalled, inter alia, that the ‘‘preamble’’ ‘‘language was
agreed to’’ by Riesenbeck except for ‘‘the insertion of
dates’’ and marked ‘‘okay.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 6.)
ognition and bargaining unit’’ language ‘‘was marked as
okay . . . after getting told by Riesenbeck that that was okay
with him.’’ Further,
[u]nder Art. 2, . . . Union security, . . . the Company
said the language was fine except . . . they had a prob-
lem with the 31st day because their current procedure
was to have a probationary period of six months. And,
the dues check off, he [Riesenbeck] didn’t really want
to get into that . . . he was a small Company and he
only had one secretary in St. Louis and . . . Hannibal
. . . . And so, I [Scott] put a question mark by that [on
G.C. Exh. 6] because he [Riesenbeck] needed to talk to
his payroll people . . . . On leave of absence, Art. 3,
Sec. 1, he asked for an explanation . . . . He said okay
with that and I marked it as okay. Under Sec. 2, which
is for just reasons . . . he said that he doesn’t have any
problem with that as long as it would be subject to the
grievance and arbitration procedure . . . .
We then went on to discharge [art. 4]. He
[Riesenbeck] said okay on Sec. 1. He said absolutely no
on Sec. 2 . . . . Sec. 3 he said okay, as he did for 4,
5 and 6. And Sec. 7, he said absolutely no way . . . .
We then went into seniority, Art. 5, Sec. 1. . . . He
[Riesenbeck] didn’t have a problem. Nor did he have
a problem with Secs. 2, 3, 4 and 5. He did want to
make a counterproposal on Sec. 6. On Sec. 7, he didn’t
want to agree to that . . . he wanted layoff by classi-
fication.
We then moved on to Art. 6, health and safety. He
[Riesenbeck] told me . . . under Secs. 1 and 2 he was
operating on Anheuser-Busch’s facilities [and] it would
only be to the extent that Anheuser-Busch could pro-
vide those [facilities]. Sec. 3 he said no. Sec. 4 he said
that was fine. Sec. 5 . . . I said that’s covered later on
. . . I’ll withdraw that proposal . . . . He said fine.
Secs. 6 and 7 were not agreed to at that particular time.
We went into vacations [art. 7]. He [Riesenbeck]
told me that there was no way in hell that anybody in
his employment was going to be given six weeks vaca-
tion. I asked him what his present schedule was and he
told me that it was a maximum of four weeks. . . .
Under Sec. 2 for the vacation check, he needed to
check with his payroll people. . . . And on eligibility,
Sec. 3, . . . he said [that his] work week starts at 2:30
p.m. on Sundays, and so I wrote that down as a nota-
tion to consider. Sec. 4, on the first sentence, he said
absolutely no, but on the second sentence or the last
sentence of Sec. 4, he said that was okay with him. On
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66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Sec. 5, I don’t have a response . . . but on Sec. 6 [va-
cation schedule] they did not like that . . . they were
going to rewrite Sec. 6 in its entirety. Sec. 7 was okay
with him. Sec. 8 was not okay with him.
On holidays [art. 8], the Company rejected . . . they
said that [they] currently only provided for eight holi-
days . . . . They told me that they would consider the
Friday after a Thanksgiving . . . but for now it was re-
jected.
On Art. 9, limitations of production, . . . after hav-
ing discussion on that, the Union deleted it from its
proposals.
On Art. 10, Union made materials and supplies,
[Riesenbeck] said that was all right.
[On art. 11, business agents and union officials,]
[Riesenbeck] said that was all right.
Under Art. 12, the grievance and arbitration proce-
dure, [Riesenbeck] said that he would have to check
with his consultant, that he didn’t know how that situa-
tion worked. But what he did know about it he did not
like.
Under Art. 13, supervisory employees, [Riesenbeck]
agreed that was all right. On Art. 14, the military
clause, he said . . . okay . . . . On Art. 15, on jury
duty, . . . he said it was all right and agreed to that.
Then we went into hours [art. 16]. . . . [Riesenbeck]
said that the language [in sec. 1] was fine but he need-
ed a broader period between the fourth and fifth hour
[for meal time]. Sec. 2 he had a question . . . . Sec.
3 the Company would offer me a counter. On Sec. 4
the Company didn’t understand what the odd hour was
[and] I explained it to them and put a question mark
[on G.C. Exh. 6]. On Sec. 5 [and sec. 6] the Company
told me that they would counter . . . . On Sec. 7 [and
sec. 8] . . . after discussing that . . . I agreed to delete
that from my proposal. And under Sec. 9 . . .
[Riesenbeck] won’t agree to that.
Scott explained that ‘‘that’s where we left off at that bargain-
ing session’’; the meeting had lasted about 3 hours; and the
parties agreed to meet again at 6 p.m. on April 21. Scott
noted that at no time during this session did Riesenbeck
claim ‘‘that he was without authority to enter into any agree-
ment for the Company’’ and, ‘‘other than with respect to the
grievance and arbitration procedure, did he say that he need-
ed to speak with his advisor.’’ Further, Riesenbeck never
claimed that ‘‘only his consultant could bind the Company.’’
Jerome Diekemper, attorney for the Union, also attended
this and later bargaining sessions between the parties. (fiMDBUfl*ERR17*fiMDNMflSee
G.C. Exh. 27, his bargaining notes.)fiMDBUfl*ERR17*fiMDNMfl Diekemper’s testimony
pertaining to this and later sessions corroborates in signifi-
cant part the testimony of Scott. (fiMDBUfl*ERR17*fiMDNMflSee Tr. 303–308.)fiMDBUfl*ERR17*fiMDNMfl
Company President Riesenbeck generally testified:
Q. . . . Did you ever agree to the Union’s proposal
on Union security?
A. In my mind, I never agreed to anything at that
meeting in that I had previously told Gary [Scott] that
without having Kenny [Smelcer] there, my labor nego-
tiator, I didn’t want to get in a position where I was
negotiating on something.
Kenneth Smelcer testified that he was to serve as
Riesenbeck’s labor consultant during the 1994 negotiations.
He was uncertain ‘‘what was the first meeting [he] at-
tended.’’ He generally claimed:
There was one [meeting] I was going to attend and then
it ended up getting moved and I was out west at the
time. I guess that might have been the first one when
he [Riesenbeck] went ahead. . . . And [as for] the sec-
ond [meeting], I had refinanced a house . . . . And I
said [to Riesenbeck] . . . just listen and discuss with
them what the clauses mean.
IV. THE APRIL 21 MEETING
Union Representative Scott wrote Company President
Riesenbeck on April 16 enclosing some ‘‘additional propos-
als’’ pertaining to ‘‘supervisory employees,’’ ‘‘job security’’
and the ‘‘successor clause’’ so that the Employer ‘‘can have
them in advance of’’ the scheduled April 21 meeting. (fiMDBUfl*ERR17*fiM
G.C. Exh. 9.)fiMDBUfl*ERR17*fiMDNMfl
This meeting, as noted, was scheduled to start at 6 p.m.
on April 21. The company representatives arrived at 6:30
p.m. Attending for the Union were Scott and Alsop and the
Union’s attorney, Diekemper. Attending for the Company
were Riesenbeck and Summers and the Company’s consult-
ant, Smelcer. Scott recalled:
We started off on Art. 17 [premium days] where we
had left off at the previous meeting of the 15th of
April. [See G.C. Exh. 6.] . . . I [Scott] asked if the
Company worked on Sunday. And they explained that
they only worked a couple of hours on Sunday, which
was the beginning of their workweek [and] it was con-
sidered Monday’s work. . . . [T]he Company handed
me . . . a letter that stated that they were going to
make all of their current . . . part time employees,
which were employees with more than six months of
service, to full time employment. This would entitle
them to health and welfare benefits . . . . [T]hen the
Company advised us that they had problems with pre-
mium days.
And then we moved on to Art. 18 [uniforms].
Riesenbeck said that the Company didn’t care if the
employees wore uniforms as long as they were present-
able . . . .
On Art. 19 on wages, it was agreed at the . . . be-
ginning of the session, it was Smelcer’s request, that
we discuss non-economic issues first and put these to
bed before we went on to economic issues.
And we then went to Art. 20 on picketing and struck
goods. The Company asked about the proposal. I ex-
plained that that gave the employees the right to honor
picket lines without being subject to disciplinary action.
Smelcer said he understood the proposal.
We then went on to Art. 21, Union stewards. . . .
Diekemper asked if the Company had any problem with
the language and Smelcer said he understood the pro-
posal as put forth.
And we went on to Art. 22, the welfare plan . . . .
I at that time asked for a copy . . . of all their current
benefits for health and welfare . . . . [T]he Union was
proposing that the Company could continue the same
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67GOLDEN EAGLE SPOTTING CO.
1 The notation ‘‘OK’’ appearing on G.C. Exh. 6 for this union pro-
posal was, as Scott explained, placed on G.C. Exh. 6 at a later time.
2 Scott initially recalled that G.C. Exh. 9 contains the Union’s
April 16 ‘‘additional’’ proposals to the Employer pertaining to ‘‘su-
pervisory employees,’’ ‘‘job security’’ and ‘‘successor clause,’’ and
G.C. Exh. 10 shows his handwritten notes made on the ‘‘proposals’’
during the April 21 negotiation session. Later, however, Scott cor-
rected his testimony to explain that ‘‘after reviewing my notes, what
I testified to on G.C. Exh. 10, was truly done at [the next] meeting
of May 12.’’ (fiMDBUfl*ERR17*fiMDNMflSee Tr. 109–111.)fiMDBUfl*ERR17*fiMDNMfl
health and welfare program that it had in effect at that
particular time [with Alliance]. Riesenbeck explained
that he didn’t want to be tied down to [his] Alliance
program. I told him that was fine . . . my proposal said
the Alliance program or the equivalent . . . [and he]
would have to go out and negotiate with substitute pro-
viders if he in fact saw fit.
[Under art. 23, pensions,] Riesenbeck stated that
there was no way that he was going to agree to [the]
Central States pension, that they currently had a 401K
in the Company plan in effect, however, they did not
provide any match by the Company.
[Under art. 24, unauthorized activity] . . . after I
read the proposal, Diekemper asked if Section 1 gave
anyone a problem from the Company. We got no re-
sponse.1
We then went on and read our Art. 25 on manage-
ment rights. . . . The Company said they would re-
spond later to our proposal.
We then moved on to Art. 26, the successor
clause. . . . [Cf. G.C. Exhs. 6, 9, and 10.2] They [the
Company] didn’t want to be hindered from selling their
business . . . the Company did not agree to that pro-
posal . . . . And then we went on to the job security
[and the supervisory employees] provision . . . .
Riesenbeck said that he wanted general manager Sum-
mers to perform bargaining unit work as the needs of
the business warranted. . . . [W]e were willing to in-
sert that the Employer shall not direct [or] require any
of its employees, other than the general manager, who
are not included within the bargaining unit covered by
this agreement, to do or perform any work . . . . [W]e
told them that they had leadmen [or shift leaders] for
spotters and leadmen for loaders on the different shifts,
and we would allow those people to work . . . they
were . . . bargaining unit members and not super-
visors. . . . [On independent contractors and sub-
contracting out work,] Riesenbeck brought up that there
was a dispute on the bulk heads . . . between [another
union and our Union] as to this work. It was currently
being done off site. So what we did is we said that we
would agree, except for bulk heads, and that if [work]
other than spotting and loading becomes available then
the parties would discuss alternatives . . . . On the job
security proposal, the Company said they understood
our proposal but did not agree.
We then went on to funeral leave, Art. 27 . . . .
Riesenbeck said that he could not agree to in-laws . . .
and I told him that was . . . already agreed to in his
employee manual. [Cf. G.C. Exh. 7.] Riesenbeck said
that they would give us a corrected copy [of the em-
ployee manual] at the next meeting.
. . . We then went on to the proposal on substance
abuse [art. 28]. The Company said that because of its
length they would need time to review this.
We then went to termination [art. 29]. Smelcer ques-
tioned Diekemper on the 60 day notice [and] with that
the meeting ended.
(fiMDBUfl*ERR17*fiMDNMflSee also the testimony of Diekemper (fiMDBUfl*
Kenneth Smelcer, the Employer’s labor consultant, gen-
erally recalled attending this session, and this ‘‘might have
been [his] first session.’’ (fiMDBUfl*ERR17*fiMDNMflSee Tr. 508.)fiMDBUfl*
V. THE MAY 12 MEETING
Union Representative Scott testified that the parties had
agreed to meet next at 6 p.m. on May 12 and during the
‘‘afternoon’’ of May 13. Scott, Alsop, Diekemper, and Union
Vice President Tim Leonard appeared for the Union as
scheduled on May 12. However, Riesenbeck and Summers
‘‘showed up’’ on May 12 at 6:30 p.m., and Smelcer, their
consultant, did not ‘‘arrive’’ until 9:30 p.m. Scott recalled:
[T]he meeting started by Riesenbeck wanting to address
the [Union’s] April 16 letter [see G.C. Exhs. 9 and 10,
and fn. 2, supra]. And again he stated that he needed
more flexibility in his operations. He didn’t see that in
our letter. With regards to not letting Mike [Summers]
occasionally drive a truck when someone doesn’t show
up, that’s when the discussions arose regarding the
handwritten language on Secs. 2 and 3 of job security
[as shown in longhand on G.C. Exh. 10]. After we did
those handwritten notes [or modifications of the
Union’s initial proposal to reflect the Employer’s con-
cerns], Riesenbeck agreed to Secs. 2 and 3 [as reflected
in G.C. Exh. 10].
See also General Counsel’s Exhibit 8, page 10 and General
Counsel’s Exhibit 27, page 13.
Scott again noted that Riesenbeck had not claimed that
‘‘he was without authority to enter into an agreement for the
Employer’’ or that ‘‘he could not make an agreement without
Smelcer.’’ Scott further noted that Riesenbeck had ‘‘advised
us at that particular time that he would not agree to a succes-
sor clause.’’ In addition, Scott also recalled:
At that particular time, . . . I had previously requested
that the Company provide the employees with a time
clock . . . and I asked if . . . if the time clock had
been put in place . . . . I was advised that it had not
. . . but Riesenbeck assured me that it would be short-
ly.
Discussion also ensued over, inter alia, ‘‘how many employ-
ees worked on each particular shift,’’ and ‘‘we agreed to Sec.
6 of Art. 16’’ pertaining to hours. (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exhs
And, the Employer presented the Union with a ‘‘corrected
copy’’ of its ‘‘Employee Handbook’’ or ‘‘Manual.’’ (fiMDBUfl*ERR17*fiM
G.C. Exhs. 11 and 7.)fiMDBUfl*ERR17*fiMDNMfl
As Scott further testified and his bargaining notes show
(fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 8)fiMDBUfl*ERR17*fiMDNMfl, Smel
[Smelcer’s] words upon arrival [were], ‘‘Nothing has
been agreed to yet.’’ Diekemper [said], ‘‘I beg your
pardon there’s been several things agreed to . . .’’ and
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68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 It was stipulated that ‘‘the three shift leaders . . . were promoted
outside the bargaining unit’’ on June 1, 1994. (fiMDBUfl*ERR17*fiMDNMflSee Tr. 350–
4 See also the testimony of employee Todd O’Laughlin describing
the duties of both Elliot and Kapper (fiMDBUfl*ERR17*fiMDNMflTr. 362–367)fiMDBUfl
Michael Elliot, called as a witness for Respondent, acknowledged
that his ‘‘duties’’ have not ‘‘changed as a result of the promotion
from shift leader to supervisor.’’ Elsewhere, he claimed that he has
‘‘more control of what happens on [his] shift.’’ Cf. G.C. Exh. 28,
where Riesenbeck wrote the unit shift leaders,
During this period of time it is an unfair labor practice if we
raise anyone’s salary other than Management. Therefore I am
recommending that the first of June we promote you three
leadmen to shift supervisors.
he [Diekemper] started reading from his proposals
going back to the first meeting that Diekemper was in-
volved . . . on April 15 . . . . [Following a caucus]
Smelcer [came] back into the room and [said], ‘‘They
have a problem . . . if the Union thinks that
Riesenbeck has agreed to certain items already.’’ He
[Smelcer] wanted to stop there until we could resolve
that issue. . . . Diekemper . . . explained to Smelcer
that we felt misled . . . and the Union believed at that
time that the Company was doing nothing but stalling
. . . knowing we were under a one year certification
rule. Riesenbeck stated he wanted to adjourn for the
day . . . [and] they were going to cancel [the next
day’s session]. I [Scott] told him [Riesenbeck] . . . it’s
getting late . . . we’re going into June . . . you are
only allowing me to negotiate with you four hours a
month . . . I need a proposal from the Company . . .
I need to set some dates . . . . Riesenbeck told me that
he would have Smelcer draw up a counterproposal or
some Company counterproposals and get them to the
Union prior to our next meeting.
Company President Riesenbeck claimed that, following a
‘‘conflict between Diekemper and myself’’ over ‘‘what I had
agreed to’’ or ‘‘didn’t agree to . . . previously,’’ it ‘‘was my
understanding that we are going to negotiate this thing . . .
we were now negotiating from a new position as far as what
had happened when [Smelcer] was not with me.’’ According
to Riesenbeck, ‘‘it was the Company’s position at that time
that any of the discussions or agreements during the March
25th, April 15th or April [21st] negotiating sessions were no
longer binding.’’
Smelcer generally recalled attending this session, as fol-
lows:
I [Smelcer] think May 12 was the second session
. . . . I was late because . . . I had attempted to bring
a classic car down for a car rally . . . in St. Louis and
I proceeded to blow three tires by the time I got to
Quincy . . . .
. . . .
[T]here definitely was an episode of where we threat-
ened to leave because there was no sense in continuing
negotiations where we were having a conflict whether
there was an agreement or there wasn’t an agreement
on these things, and we would just end up here [before
the NLRB] . . . .
. . . .
[W]e sat down basically then and agreed on the ones
we had agreed on . . . although we didn’t sign a mas-
ter copy.
Elsewhere, Smelcer generally claimed that this dispute or
‘‘heated discussion’’ over what had or had not been agreed
to arose both at this session and the prior meeting.
VI. THE EMPLOYER PROMOTES THREE UNIT SHIFT
LEADERS TO SUPERVISORS ON MAY 25
The next meeting between the parties was, as discussed
below, on June 3. However, on May 25, Company President
Riesenbeck sent a memorandum to Manager Summers, with
copies purportedly sent to Smelcer and Scott, stating in part
(fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 12)fiMDBUfl*ERR17*fiMDNMfl:
Per our discussion the other day, please be advised that
effective June 1, 1994, we will be promoting the three
shift leaders, David Hagler, David Kapper and Mike El-
liot. As you know, for quite some time they have been
functioning as leadmen and I feel because of the growth
we have experienced over the past eight months, as
well as Anheuser-Busch, Inc.’s intent to continue higher
than normal shipment quantities throughout the sum-
mer, we will need this extra line of management to
continue to offer our customers and Anheuser-Busch
our efficient, effective performance.
Please advise David Hagler that because of his high
salary level . . . we will be holding his salary at this
amount. . . . We will be raising [David Kapper’s] sal-
ary . . . . We will raise [Mike Elliot’s] salary . . . .
Please keep in mind that these gentlemen, like your-
self, will continue to drive and work in the same capac-
ity they have been in the past, but we are formalizing
the fact that drivers and loaders as well as secretaries
report to the shift leader on each of their respective
shifts. They will have management responsibilities in
selecting overtime situations and have input to you in
regard to promotions, disciplinary action, vacations and
all other management situations.
Scott was first given a copy of this document by a unit em-
ployee on June 1, shortly prior to the next meeting between
the parties. Scott explained that the parties had never dis-
cussed ‘‘promoting shift leaders to supervisory positions’’
and the Union had never ‘‘agreed’’ to these ‘‘promotions.’’
Further, there are no longer, as a consequence of this change,
any unit ‘‘shift leaders,’’ an elimination of three of some 27
unit positions.
David McGlynn, formerly employed by the Company as
a driver, testified that Kapper was his ‘‘shift leader’’ in 1994
and was ‘‘promoted to a shift supervisor’’ during the summer
of 1994.3 Kapper ‘‘reported to general manager Summers’’
and his ‘‘job duties’’ did not ‘‘change’’ ‘‘when he was pro-
moted.’’ Further, according to McGlynn, Kapper did not ex-
ercise the various cited indicia of supervisory authority. (fiMDBUfl*ERR17*fiM
Tr. 353–354.)fiMDBUfl*ERR17*fiMDNMfl4
VII. THE JUNE 3 MEETING
Union Representative Scott recalled that this bargaining
session was scheduled to start at 4 p.m. on June 3. However,
the Employer’s representatives arrived 20 minutes late. Scott,
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69GOLDEN EAGLE SPOTTING CO.
5 Scott later explained that the Union ‘‘wanted to put in there [art.
5, sec. 4(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl] the words, withou
G.C. Exh. 13.)fiMDBUfl*ERR17*fiMDNMfl
Alsop, Diekemper, and Leonard attended for the Union.
Riesenbeck, Summers, and Smelcer attended for the Em-
ployer. The Employer had sent the Union its proposed
‘‘agreement.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 13.)fiMDBUfl*ERR17*fiMDNMfl
Scott testified that the Employer’s representatives, ‘‘when
they arrived at 4:20, immediately took a 20 minute caucus,’’
and corrected ‘‘typos in their proposal.’’ Smelcer then ‘‘took
us through his proposal.’’ Scott testified:
On the preamble, we okayed it except for the dates
that are left blank. [See G.C. Exh. 13.] . . . The next
article [art. 1 recognition and unit] there was some dis-
cussion on the word ‘‘loaders’’ . . . [and] ‘‘loader ob-
servers’’ at the end of that paragraph . . . . [W]e had
agreed to replace the word ‘‘loaders’’ with the words
‘‘loader observers,’’ and we okayed and agreed to that
. . . .
The next article [art. 2] was freedom of choice.
Riesenbeck told me [Scott] that there had been persons
who had indicated to him their desires not to belong or
be required to join the Union. Diekemper said that he
wanted to make it understood that at a prior meeting
[Riesenbeck] had indicated the only problem with
Union security was a probationary period. . . .
[Diekemper] also indicated that there was no provision
in there to offer to provide for checkoff. Smelcer then
stated that if the employees wanted to join the Union
that they should be willing to write a check. Riesenbeck
said the same exact thing. . . .
We went on to Art. 3 Sec. 1 . . . disability, illness
and leaves of absence. . . . I had explained to the
Company that under our proposal we wanted the Com-
pany to provide for health and welfare benefits during
the four weeks of military training. We left that [Sec.
1] open. Under Sec. 2, we agreed to scratch out the
words ‘‘employees may elect which sick days will be
paid.’’ We agreed to insert . . . the words ‘‘consecu-
tive’’ and I dated that [on G.C. Exh. 13]. And we
agreed to put in ‘‘unused sick days will be paid to the
employees on the last paycheck of the year.’’ We
didn’t, however, agree to the total section . . . we only
agreed to those particular items.
The Company caucused . . . . When they came
back to the room, Smelcer advised me that he didn’t
want to make or agree to any changes at that particular
time, and he also advised me that he had to leave . . .
7:30 p.m.
Riesenbeck at the time told me that the Company
would grant leaves of absence for persons whose
spouse was dying of cancer, but not for someone who
wanted to go sailing around the world with his brother.
We then went into their Art. 4, discharge. The Union
section had a request for just cause. Diekemper asked
why would the Company have an objection to just
cause. Smelcer said, ‘‘because they would have to
prove it.’’ They wanted to write the discharge without
proving it. We then went to the Company’s Sec. 1; . . .
I had asked . . . how I could expect anybody to be off
for committee work if . . . he has to obtain a super-
visor’s permission . . . .
Scott noted that, under article 4, section 2 of the Employer’s
proposal, he ‘‘questioned . . . how that could be that the
Employer could make work rules and regulations that could
be against Union activities . . . you’re telling me then you
could make the rule that your employees can’t attend Union
meetings,’’ and Riesenbeck said: ‘‘Yeah, I think my proposal
has got a little bull shit in it.’’ The Union then agreed to sec-
tion 3 and marked ‘‘okay’’ on General Counsel’s Exhibit 13.
Under section 1 of article 5, seniority, the Union said it
‘‘would counter with bargaining unit’’ instead of ‘‘Company
seniority.’’ The Union would also ‘‘counter’’ on other pro-
posals in this article, but section 4 ‘‘A, B, C and E were
okay.’’5 Under article 6, health and safety, the Union had
‘‘no problems with Secs. 1 through 5,’’ and ‘‘agreed.’’
Under article 7, vacations, ‘‘it was exactly the language’’ the
Union had ‘‘proposed,’’ and the Union ‘‘agreed to it’’ except
for section 1 on ‘‘length of vacation’’ which ‘‘remained
open.’’ Under article 8, holidays, the Union ‘‘agreed’’ to
‘‘everything but Sec. 1.’’ Under articles 9 and 10, union-
made materials and supplies and business agents and union
officials, the Union ‘‘agreed.’’
Under article 11, the grievance procedure, Scott testified:
I [Scott] told them that it was not acceptable. I have
to be honest. I did laugh and so did my committee
when they found out that the president of the Company
[Riesenbeck] wanted to be the final and binding arbitra-
tor and that the Union was going to agree to and live
by his decisions. . . . [Riesenbeck] told me to be as-
sured that he was a fair guy . . . . [See G.C. Exh. 13.]
And, under article 12, supervisory employees, the Company
was now proposing that ‘‘supervisors may perform any bar-
gaining unit work at any time needed to further the interests
of the business.’’ Scott, referring to the Employer’s May 25
memorandum, General Counsel’s Exhibit 12, stated:
When we started out these negotiations we had one su-
pervisor. Today we have four. Next week [we] might
have 12. And by the time I get a contract I won’t have
any [unit employees]. . . . I told them I could not ac-
cept that . . . . I said that if they are supervisors they
are not going to be in the unit, and if they are going
to be supervisors they are not going to be performing
bargaining unit work. . . . I had previously agreed to
allow [manager] Summers to do what Riesenbeck had
said and that was to fill in for absentee problems. But
now, seeing where he was going with this, I told him,
absolutely not.
Under article 13, jury duty, Scott could not agree to section
1 ‘‘because they limited it to two weeks a year.’’ Under arti-
cle 14, hours, as Scott testified:
We scratched out the words ‘‘try to’’ [in sec. 1] and
we added the words ‘‘for lunch’’ [on G.C. Exh. 13]
after ‘‘minutes.’’ We agreed to that and dated it. I also
agreed to the Company’s proposal on Sec. 2 after
changing the word ‘‘driver’’ to ‘‘employees.’’ I coun-
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70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tered Sec. 3 with adding the words ‘‘except in the case
of emergency,’’ but that hadn’t been agreed to.
In addition, as Scott further testified, ‘‘[W]e then went into
the Union proposals on premium days because the Company
had left that out of their proposal.’’ Riesenbeck
responded that there would be no double time while
I’m in charge . . . the work week is 40 hours . . . I
pay time and a half after 40 hours . . . I start the work
week at my time.
Scott then ‘‘agreed to the Company’s proposal on Art. 15,
attire, but . . . I [Scott] am not agreeing to delete those other
[proposed] sections where the Company needed to provide
the uniforms.’’
Under article 16, wages, the Employer proposed in Gen-
eral Counsel’s Exhibit 13:
Sec. 1. Wages shall be determined by management
for each employee within the indicated ranges . . . :
All regular full time employees classified as drivers
. . . $6.50–$10.00 per hr.
All regular full time employees classified as loaders
. . . $6.50–$9.00 per hr.
All part time employees classified as drivers or load-
ers . . . $5.50–$9.00 per hr., without fringe benefits.
Sec. 2. All overtime shall be paid at the rate of time
and one half.
Scott testified:
I [Scott] told him [Riesenbeck] that it was totally unac-
ceptable . . . nowhere in my life have I ever seen a
range where the Employer would say certain people can
make this and certain people can make that. I want one
established wage rate.
The parties ended here and ‘‘set the next tentative session for
June 21 . . . at 3:00 p.m.’’ See also the testimony of
Diekemper (fiMDBUfl*ERR17*fiMDNMflTr. 313–321.)fiMDBUfl*ERR17*fiMDNMfl
VIII. THE JUNE 21 MEETING
This meeting was scheduled to begin at 3 p.m., however,
as Scott recalled, the Employer’s representatives arrived at
3:30 p.m. During preliminary discussions, Scott testified:
I [Scott] had asked . . . if the Company . . . had ap-
proached the bargaining unit employees requesting their
opinions as to whether or not they would cross a
[Union] picket line . . . . Riesenbeck indicated that he
did not . . . but doesn’t know if Mike [Summers] has
or not . . . . Alsop . . . asked Riesenbeck if he had
made the comment that he wasn’t going to [meet] with
those son of a bitches until after the 4th of July.
Riesenbeck responded that he had made the comment,
but that he did not refer to us as son of a bitches. [Cf.
Tr. 151–152; G.C. Exh. 8 at 18.]
The parties then resumed discussing the Employer’s pro-
posals set forth in General Counsel’s Exhibit 13. Scott testi-
fied:
[Under art. 17, Union stewards,] I [Scott] told him
[Riesenbeck] I would agree to everything because it
was the same as the Union had proposed . . . except
for the last sentence . . . [requiring all business to be
performed off the clock.]
I then identified that they [the Employer] made no
reference to the Union’s proposal of picketing and
struck goods in their proposal . . . .
Under article 18, welfare, the Employer proposed:
The Company will continue to cover its regular full
time employees under the same plan it maintains for its
non-bargaining unit employees on the same terms so
long as that plan is in effect.
Scott asked Riesenbeck: ‘‘[A]re you telling me that if you
decided to discontinue health and welfare coverage for non-
bargaining unit employees it would be discontinued for all
employees,’’ and Riesenbeck responded: ‘‘[C]orrect.’’ Fur-
ther, as Scott recalled, the Employer ‘‘made no reference to
a pension plan, [although] the Company told me in previous
negotiations that they would consider a pension plan.’’
Article 19, pertaining to unauthorized activity, was agreed
on and ‘‘okayed.’’ Under management rights in article 20,
Scott questioned:
[W]hy they had in their management right’s the part
that says they could discharge for just cause, but would
not allow that to be inserted at the Union’s request in
the discharge article. Riesenbeck and Smelcer both indi-
cated that they have the exclusive right to terminate an
employee . . . the ultimate, final and binding decision
was going to be Riesenbeck’s.
Then, the Company said ‘‘no’’ on the Union’s proposed
‘‘successor clause,’’ and the Union ‘‘agreed’’ to the Employ-
er’s article 21 funeral leave proposal.
Article 22 of General Counsel’s Exhibit 13 contains the
Employer’s counterproposed substance abuse policy. A dis-
cussion ensued. Finally, as Scott testified, ‘‘Riesenbeck then
told me [Scott] that he didn’t care to have a policy on sub-
stance abuse. I said that would be fine, and I would so note
it.’’
Article 23 pertains to termination. Scott ‘‘agreed’’ ‘‘except
for the term of the contract and dates.’’ Scott recalled that
‘‘the Company wanted a one year contract’’ and ‘‘the Union
wanted a three year contract.’’
Further negotiations were scheduled for July 14 and 15.
The Employer later ‘‘canceled.’’ The parties thereafter met,
as discussed below, on July 20 and 21.
IX. THE JULY 20 MEETING
Scott generally recalled that the Employer’s representatives
‘‘could have’’ ‘‘arrived about an hour late’’ for this July 20
meeting. Scott then gave to the Company ‘‘a counterproposal
from the Union for a complete labor agreement’’ which ‘‘in-
corporated some of the previously agreed items.’’ (fiMDBUfl*ERR17*fiMDNM
Exh. 14.)fiMDBUfl*ERR17*fiMDNMfl Scott noted a number of ‘‘changes
Union’s original position’’ as well as ‘‘deletions.’’ (fiMDBUfl*ERR17*fiMDN
161–170 and G.C. Exh. 8, 21–24.)fiMDBUfl*ERR17*fiMDNMfl Thus, for ex
Union’s proposed vacations were reduced to a maximum of
5 weeks; two proposed holidays were deleted; proposals per-
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71GOLDEN EAGLE SPOTTING CO.
6 G.C. Exh. 17 underlines the Union’s proposed changes in its past
bargaining positions or proposals.
7 See G.C. Exh. 18, a copy of G.C. Exh. 17 containing Scott’s ad-
ditional August 18 bargaining notes. G.C. Exh. 18 shows previous
Continued
taining to supervisory employees were ‘‘changed . . . to
allow that supervisors may perform the bargaining unit
work’’ under certain circumstances; union premium pay pro-
posals were deleted; specific union wage counterproposals
were made; and reference to a proposed substance abuse pro-
posal was deleted ‘‘because at the previous meeting the
Company indicated that it didn’t want it and I [Scott] agreed
to that.’’
Riesenbeck stated, ‘‘[J]ust looking at our proposal, it is
not acceptable.’’ Scott’s bargaining notes for this session re-
flect the positions of the parties with respect to the Union’s
various counterproposals. (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 8, 21–24.)fiMDBUfl*ERR17*fiMDNMfl Scott re-
called, inter alia, that the ‘‘Company . . . said no to . . .’’
the Union’s ‘‘unauthorized activity’’ and ‘‘funeral leave’’
proposals which the ‘‘parties had previously agreed to’’ ‘‘and
signed off on’’ at the June 21 meeting. Scott further recalled
that Smelcer then said that ‘‘they needed substance abuse’’
provisions, and Scott responded:
[T]ell me if you want one or tell me if you don’t want
one . . . I don’t know what you want . . . you change
every time I meet with you . . . we agree to something
and the next meeting we don’t agree.
This session then ended. See also the testimony of
Diekemper (fiMDBUfl*ERR17*fiMDNMflTr. 321–323)fiMDBUfl*ERR17*fiMDNMfl.
X. THE JULY 21 MEETING
This session was supposed to start, as agreed, at 4 p.m.
on July 21. The Employer’s representatives arrived 30-min-
utes late. At the beginning of this meeting, the Employer fur-
nished to the Union for the first time the following document
pertaining to a ‘‘safety and attendance incentive pool’’ pro-
posal, dated July 20, 1994, signed by Company President
Riesenbeck, and addressed to unit personnel (fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 15)fiMDBUfl*ERR17*fiMDNMfl:
Please be advised that effective July 1, 1994, and
each month thereafter, $200 will be put in a pool for
a three month period, totaling $600. At the end of each
quarter . . . all the names of full time employees in the
above classifications will be placed in a hat for two
separate drawings if they haven’t had any lost time in-
juries or unexcused absences.
Drivers only—if no accidents have occurred during
the quarter, the driver’s name drawn will receive $300.
All employees—if no lost time injuries or unexcused
absences have occurred, the employee whose name is
drawn will receive $300.
Scott explained that this was ‘‘the first time’’ that he had
‘‘learned that the safety and attendance incentive pool would
be effective July 1,’’ and he had never ‘‘agreed to this
plan.’’
Smelcer then handed Scott General Counsel’s Exhibit 16,
a copy of the Employer’s July 21 counterproposals. The Em-
ployer reviewed its counterproposals. (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 8 25–
31; and Tr. 183–193.)fiMDBUfl*ERR17*fiMDNMfl As the Union’s bargaining notes and
Scott’s testimony show, ‘‘the only discussion’’ on the
Union’s proposed union-security clause was simply a rejec-
tion. On leave of absence, ‘‘the Union countered with lan-
guage [which] the Company agreed to.’’ On discharge,
‘‘Diekemper again asked about just cause for discharge’’ and
‘‘Smelcer again said it was associated with arbitration’’ and
‘‘the Company doesn’t want any part of arbitration.’’ On su-
pervisors, the Company ‘‘wants their supervisors to perform
bargaining unit work.’’ On seniority, the Union agreed to
‘‘company seniority.’’ On wages, the Company rejected the
union counterproposal and ‘‘proposed [the Company’s] lan-
guage as it was before’’ ‘‘within a range’’; however, the par-
ties did agree on overtime at time and a half. On stewards,
the Company ‘‘changed its mind’’ on matters ‘‘previously
agreed to.’’ On welfare, the Company made no further coun-
terproposals and the Company ‘‘was looking into its own’’
pension program. On substance abuse, the Company ‘‘want-
ed [its] substance abuse’’ plan and the Union stated that it
would ‘‘counterpropose at a later date.’’
The Union then announced that it ‘‘wanted to request the
assistance of the FMCS,’’ and the Employer stated that it
only wanted to meet for ‘‘one day’’ and not for ‘‘two days
in a row.’’ See also the testimony of Diekemper (fiMDBUfl*ERR17*fiMDNM
329)fiMDBUfl*ERR17*fiMDNMfl.
Company President Riesenbeck generally claimed that the
Union ‘‘consented’’ to his ‘‘retroactive proposal’’ pertaining
to a ‘‘safety and attendance incentive pool.’’ (fiMDBUfl*ERR17*fiMDNMflG.C
Riesenbeck added:
This is certainly the impression I got from the con-
versation we had across the table . . . if he [Scott] had
said no I wouldn’t have implemented it. [See Tr. 478–
479.]
XI. THE UNION’S AUGUST 8 LETTER WITH
COUNTERPROPOSALS
On August 8 Scott mailed to Riesenbeck a copy of the
Union’s new counterproposals (fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 17)fiM
expedite the bargaining process’’ ‘‘scheduled at Federal Me-
diation . . . August 18 . . . from 1 p.m. to 8 p.m.’’6 Scott
also apprised the Employer:
This is also to express my concern with the inordinate
delays in the bargaining process necessitated by the
lack of availability by your bargaining committee. Over
the past seven months we have only been able to sched-
ule nine bargaining sessions and some of them for only
short periods of time. The Union has repeatedly indi-
cated that its schedule was open for entire week blocks
of time, yet our sessions were relegated to once or
twice a month because of the Company’s commitments.
We need to begin serious negotiations towards reaching
an agreement.
XII. THE AUGUST 18 MEETING
This meeting was scheduled to begin a 1 p.m. on August
18 ‘‘at the Federal Mediation office.’’ The Employer arrived
about 2 p.m. According to Scott and his bargaining notes
(fiMDBUfl*ERR17*fiMDNMflTr. 193–217; and G.C. Exh. 8 at 32–35)fiMDBU
sented its counterproposals, and the Union presented its
counterproposals.7 The Union, as Scott noted, also made ad-
ditional proposed changes in its positions at this meeting.
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72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
agreements reached on the various cited proposals marked as
‘‘closed,’’ agreements reached on August 18 marked as ‘‘okay,’’ and
remaining items marked as still ‘‘open.’’
Scott generally explained that, after going through his
‘‘proposal’’ (fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 17)fiMDBUfl*ERR17*fiMDNMfl, which ‘‘reflected past agree-
ments as closed,’’ ‘‘areas where there had been no agree-
ments as open,’’ and ‘‘underlined areas as changes from the
Union’s position from the July 20 session,’’ the ‘‘parties cau-
cused.’’ The parties then presented further counterproposals.
Scott summarized the exchange, restated in part as follows:
The Company told me [Scott] that they would accept
just cause for discharge if the [Union] would agree to
the Company’s proposal on grievance and arbitration
. . . .
[The Union proposed] that probationary employees
could be subject to discharge at the Employer’s discre-
tion . . . not subject to the grievance procedure . . . .
The Company offered to grandfather employees who
were currently making wages outside and higher than
the range they proposed . . . .
[T]he Union [would] add a new hi[re] [wage] classi-
fication . . . .
[On health and welfare] they [the Employer] told me
[Scott] they would maintain existing coverage as pro-
posed for one year because they were proposing a one
year agreement . . . .
[On substance abuse] the Union’s proposal provides
that the employees who were found guilty of the policy
for the first offense [except in case of a fatality] be re-
ferred to an employee’s assistance program . . . then
the employee is put back to work subject to random
testing a few times a year . . . and a second violation
is immediate discharge . . . subject to the grievance
procedure. . . . [The Company proposed] to do what-
ever they wanted to after the first offense [including
discharge] . . . .
[On vacations] the Union softened its position and
said they would agree to the Company’s maximum of
four weeks of vacation if [the Company] would agree
to our accrual rate . . . .
[On holidays] we [the Union] agreed to drop the re-
quest for Veteran’s day if the Employer would grant the
additional holiday [for the Friday after Thanksgiving]
and make it nine instead of eight . . . . [T]he Com-
pany was not going to give us any more than eight
holidays . . . .
[T]he Union made [a counterproposal] dropping its
request for a successor clause . . . [and] changed that
to a severance pay clause. [See G.C. Exh. 8 32–35.]
Scott specifically recalled:
The Company came back [from caucus] and Smelcer
stated they were very disappointed in the way the coun-
terproposals were presented by the Union. They were
not here to horse trade and they believed that is what
I [Scott] was doing. I [Scott] said that that is no dif-
ferent than your proposal telling me that you would ac-
cept my discharge [proposal] for [their] just cause [pro-
posal] if I accepted [their] grievance and arbitration
[proposal]. And they said, irregardless, we’re adjourn-
ing for today. . . . I got upset because it was only 6:15
p.m. I said that this was just another blatant attempt of
not wanting to continue to meet as reviously prom-
ised. . . . Riesenbeck then said . . . we’ll call you on
the 24th . . . we’ll provide you with answers to your
counterproposals and we’ll meet on August 25. [See
also the testimony of Diekemper, Tr. 329–334.]
XIII. THE EMPLOYER’S AUGUST 24 LETTER TO
ITS EMPLOYEES
Company President Riesenbeck, on August 24, issued a
letter to the unit employees (fiMDBUfl*ERR17*fiMDNMflG.C. Exh. 19)fiMD
alia, that ‘‘we are basically at an impasse’’; ‘‘I have agreed
to about all of the Union’s demands that I can and they don’t
seem to want to give in to us on anything more’’; and ‘‘I
just can’t agree to anymore of the things they want.’’
Riesenbeck, although acknowledging in his letter that ‘‘many
items have been agreed in our meetings,’’ then cited ‘‘items
. . . still open’’ as including the ‘‘Union shop clause’’;
‘‘unit work [by] supervisors’’; a ‘‘grievance procedure’’;
‘‘management rights’’; the ‘‘successor clause’’; and ‘‘so-
called economic items.’’ Riesenbeck claimed: ‘‘I have been
prevented from giving increases by the negotiating process.’’
Riesenbeck also stated:
I am looking forward to discussing these issues at our
upcoming meeting [to be held on August 28 at the Hol-
iday Inn]. We cannot negotiate, but we can discuss how
the business is being run and what the disagreements
are that currently exist. This meeting is not compulsory,
but I feel it would be to everyone’s benefit to attend.
I understand that the Holiday Inn has an excellent buf-
fet and we will be having brunch during the meeting.
Scott testified that the Employer had not ‘‘told the Union
that it thought they were at impasse,’’ and the Union was
‘‘still proposing items that represented movement on the
Union’s position.’’ Scott also had not ‘‘received a response’’
to his August 18 ‘‘counterproposals.’’ Counsel for Respond-
ent Employer, during colloquy, when asked whether or not
he was claiming ‘‘impasse at this point,’’ responded (fiMDBUfl*ERR17*fiM
222)fiMDBUfl*ERR17*fiMDNMfl: ‘‘On the 24th there was basically an impas
made some pretty substantial changes after that.’’
XIV. RIESENBECK’S EMPLOYEE MEETING ON AUGUST 28
Scott attended this employee meeting called by Riesenbeck
at the Holiday Inn on August 28. Scott recalled Riesenbeck
telling the assembled employees, inter alia,
. . . He [Riesenbeck] told the employees that the Union
wanted a third person to come in and be the person that
decides disputes when the Union and the Company
have a dispute, . . . and there was no way that he was
going to allow that to happen . . . .
He told the people that if they didn’t like it . . . to
just go ahead and strike . . . .
He told the employees that the only way he was
going to sign a contract was under his terms and his
terms only . . . .
With wages, he told the employees that the Union’s
proposal was utterly ridiculous and that he wanted to be
able to give people that he thought deserved wage in-
creases [their] increases . . . that is why he proposed
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73GOLDEN EAGLE SPOTTING CO.
8 As the record shows (fiMDBUfl*ERR17*fiMDNMflTr. 370–373, 380–385)fiMDBU
would thus receive under the Employer’s proposal a $1.50-an-hour
wage increase.
the wage range . . . . He said the only agreement on
wages was going to be . . . on his terms . . . and that
there was no way that he was going to agree to the
Union’s proposals . . . .
See also General Counsel’s Exhibit 20, Scott’s notes of this
meeting; the testimony of former employee David McGlynn
(fiMDBUfl*ERR17*fiMDNMflTr. 354–356)fiMDBUfl*ERR17*fiMDNMfl; and the testimony of employee John Link (fiMDBUfl*ERR17*fiMDNM
399–401)fiMDBUfl*ERR17*fiMDNMfl.
Company President Riesenbeck generally denied, inter
alia, various coercive statements attributed to him during the
August 28 employee meeting, and on other occasions, as
summarized herein.
XV. THE OCTOBER 21 MEETING
Scott testified that he never heard from the Company on
August 24, as promised, and consequently no meeting could
be set for August 25. The next bargaining meeting ‘‘was
scheduled’’ at Scott’s request at the Federal Mediation office
for October 21. Scott and the Union’s bargaining team
showed up at the Federal Mediation office on October 21.
The union representatives and the mediator waited for about
an hour. The mediator ‘‘finally track[ed] down Riesenbeck
who return[ed] his call.’’ Riesenbeck then told
[the mediator] that he is not going to be there at any
time during that day, and that he previously told his
[the mediator’s] secretary that he was not going to be
there.
The mediator, in relaying Riesenbeck’s message to the Union
representatives, explained: ‘‘[T]hat can’t be . . . I have no
secretary . . . mediators have answering machines . . . he
had heard nothing [previously] from the Company.’’
The mediator, at Scott’s request, then arranged for another
meeting at 5 p.m. on November 17 in the Federal Mediation
office. See also the testimony of Diekemper (fiMDBUfl*ERR17*fiMDNMflTr. 334–335)fiMDBUfl*ERR17*fiMDNMfl.
Company President Riesenbeck claimed:
[M]y secretary told me . . . that she called and can-
celed the [October 21] meeting . . . [and] if we want
her to come down and get on the witness stand . . .
she will attest to that . . . but we didn’t do it on pur-
pose . . . .
XVI. THE NOVEMBER 17 MEETING
The Employer arrived at this November 17 meeting about
45 minutes late. The Employer’s attorney, Timothy
Stalnaker, also attended this session. Scott recalled
Riesenbeck telling the mediator that ‘‘we [the Employer]
have been sitting across the street at the bar . . . we just
didn’t want to come over here.’’ Riesenbeck then restated the
Employer’s positions on various items and accused the
Union ‘‘of want[ing] [bargaining unit employees] to lose
their jobs’’ by requesting ‘‘industry seniority.’’ Scott re-
sponded disputing Riesenbeck’s assertion. Scott urged
Riesenbeck to ‘‘get down to the issues’’ and ‘‘let’s get mov-
ing.’’ The Employer announced:
The Company was going to present the Union with a
final offer . . . [and] they planned on implementing it
on December 17 . . . and the wages on December 15
. . . .
This document . . . [G.C. Exh. 21] was distributed . . .
[and the Employer stated] this was the Company’s final
offer.
Scott then observed that ‘‘previous negotiations had resulted
in numerous agreements between the parties that have been
. . . left out of the Company’s final proposal.’’ (fiMDBUfl*ERR17*fiMDN
243–250.)fiMDBUfl*ERR17*fiMDNMfl (fiMDBUfl*ERR17*fiMDNMflSee also
Scott recalled that counsel for the Employer replied:
Look, because of so many [omitted agreements], he
wanted an opportunity to go back and prepare . . . an-
other complete final offer with all the agreed upon
changes, and get it to [Scott’s] office the following day.
Scott again noted that no ‘‘impasse’’ had been declared by
the Employer. The meeting ended.
Scott did not receive this ‘‘complete final offer’’ the ‘‘fol-
lowing day’’ as promised. Instead, on November 20, the Em-
ployer distributed to its employees separate memoranda per-
taining to ‘‘a reserved gate’’ in the event of ‘‘picketing’’; a
purported statement of employee ‘‘rights as strikers’’ and at-
tempted disavowal of an alleged ‘‘threat’’ by the Employer
‘‘to fire employees who strike’’; and a statement of the Em-
ployer’s ‘‘offers.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exhs. 22, 23, and 2
253–256.)fiMDBUfl*ERR17*fiMDNMfl See also the testimony of Diekemper
337)fiMDBUfl*ERR17*fiMDNMfl.
In addition to the above testimony and documentary evi-
dence, former employee David McGlynn testified that Com-
pany President Riesenbeck had admonished him and his co-
workers during the evening of November 17: ‘‘Guys, don’t
let them talk you out of your jobs. Anybody that goes on
strike will be fired and not rehired.’’
Later, as McGlynn further recalled, General Manager
Summers had similarly admonished him and a coworker: ‘‘I
am sure going to hate to lose you.’’
Employee Todd O’Laughlin recalled that during the
evening of November 17, Company President Riesenbeck
told him and another coworker that the Company had given
the Union ‘‘a final proposal’’; that ‘‘included in this final
proposal would be [wages of] $9 an hour for the loaders and
$9.50 an hour for the drivers’’; that ‘‘we were going to get
that [wage increase]8 with or without the Union [on] Decem-
ber 15’’; that ‘‘we would not get our jobs back if he won
the strike’’; and that, before the 1993 Board-conducted rep-
resentation election, ‘‘he [Riesenbeck] had asked for a year
. . . we had flked him by voting the Union in . . . we
really stabbed him in the back by doing that.’’
Riesenbeck, as noted below, in fact implemented a pay
raise on December 15, as promised. See also the testimony
of employee Ken Torti (fiMDBUfl*ERR17*fiMDNMflTr. 380–385.)fiMDBUfl*E
Employee Larry Riddle recalled that during the evening of
November 17, Company President Riesenbeck told him and
his coworkers:
He [Riesenbeck] had just come from the contract meet-
ings . . . he didn’t see any resolution . . . he wasn’t
wasting his time anymore with contract meetings . . .
they had come to an impasse . . . .
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74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Michael Elliot, called as a witness for Respondent, generally de-
nied, inter alia, witnessing Riesenbeck make various coercive state-
ments attributed to him.
He [Riesenbeck] said to me [Riddle] that he had heard
that I was intimidating people for the Union, and I told
him that was not the case. . . . Riesenbeck said, if I
hear one more word from you, you and I will be taking
a walk and you will not be coming back . . . . [See
Tr. 391–395.]
See also the testimony of employee John Link (fiMDBUfl*ERR17*fiMDNMflTr. 401–404)fiMDBUfl*ERR17*fiMDNMfl.
Company President Riesenbeck claimed, inter alia, that
during the evening of November 17, he had made the follow-
ing statements to employees:
I [Riesenbeck] just want you to be aware that if we do
have a strike, if you cross the picket line, we will be
operating. If you don’t cross the picket line, there is a
possibility that you will be permanently replaced.
Riesenbeck insisted: ‘‘At no time did I make the comment
that anybody would be fired . . . .’’ Elsewhere, Riesenbeck
acknowledged that the word ‘‘fired’’ was used during his
conversations with employees that evening. Further,
Riesenbeck admittedly had
asked [Supervisor] Mike Elliot if this is the guy [em-
ployee Larry Riddle] that was mouthing off as far as
causing the problems . . ., [and then stated to Riddle
that] I [Riesenbeck] just talked to two young men that
you have been intimidating . . . you have threatened
them and I want that to cease immediately . . . if that
kind of situation occurs you are going to have severe
problems with me, something to that effect.9
XVII. THE EMPLOYER’S DECEMBER 8 ‘‘LAST OFFER’’
On December 8, counsel for the Employer mailed to
Union Representative Scott the ‘‘Company’s last offer.’’
Counsel stated that he ‘‘was sorry for the delay.’’ (fiMDBUfl*ERR17*fiMDNMflSee G.C.
Exh. 25.)fiMDBUfl*ERR17*fiMDNMfl This ‘‘last offer’’ was ‘‘supposed to reflect all the
agreed upon changes, prior agreements, . . . along with the
Company’s position on unresolved items.’’ However, as
Scott explained, ‘‘this document does not reflect the agreed
upon’’ items; ‘‘inserted things that were agreed to be de-
leted’’; and included language ‘‘never . . . discussed’’ or
‘‘agreed to.’’ (fiMDBUfl*ERR17*fiMDNMflSee Tr. 257–266.)fiMDBUfl*ERR17*fiMDNMfl Scott noted, inter alia, that
the Company ‘‘had always taken the position of a one year
contract’’ and the Union ‘‘had always taken the position of
a three year agreement’’; however, ‘‘this [last offer] provides
for a two year contract’’ despite the absence ‘‘of any discus-
sion of a two year contract.’’ Scott also again noted that the
Employer had not ‘‘claimed that the parties were at im-
passe’’ and there were a number of ‘‘outstanding articles’’
at the time, including union security, discharge, vacations,
holidays, grievance procedures, supervisory employees,
hours, wages, picketing and struck goods, health and welfare
and pensions, management rights, successor, job security,
and substance abuse. The Union ‘‘was . . . willing to make
proposals and movement on these articles.’’
Shortly thereafter, about December 15, Scott was notified
by the unit employees that the Employer had ‘‘implemented
its final proposal.’’ Indeed, on February 15, 1995, a unit em-
ployee was disciplined pursuant to the Employer’s imple-
mented substance abuse policy. (fiMDBUfl*ERR17*fiMDNMflSee G.C. Exh. 2
271. See also the testimony of former employee David
McGlynn (fiMDBUfl*ERR17*fiMDNMflTr. 358–359)fiMDBUfl*ERR17*fiMD
371–372)fiMDBUfl*ERR17*fiMDNMfl; employee Larry Riddle (fiMDBUfl*E
ployee John Link (fiMDBUfl*ERR17*fiMDNMflTr. 404–405)fiMDBUfl*ERR17
testified, was drug tested under this implemented policy and
suspended during February 1995.
I credit the testimony of Gary Scott, Jerome Diekemper,
David McGlynn, Todd O’Laughlin, Ken Torti, Larry Riddle,
and John Link as detailed and cited above. Their testimony,
as demonstrated, was in significant part mutually corrobora-
tive; was substantiated by uncontroverted documentary evi-
dence; and was substantiated by admissions of Respondent
Employer’s witnesses. And, relying also upon demeanor,
they impressed me as reliable and trustworthy witnesses. On
the other hand, I was not impressed with the testimony of
Richard Riesenbeck, Kenneth Smelcer, and Michael Elliot.
Their testimony, as demonstrated, was often vague, general,
unsubstantiated, incomplete, contradictory, and unclear. Thus,
for example, I find totally incredible Riesenbeck’s vague and
general assertions that ‘‘[i]n my mind I never agreed to any-
thing’’ at the April 15 ‘‘meeting’’; that the Union later ‘‘con-
sented’’ to his ‘‘retroactive’’ proposal pertaining to a ‘‘safety
and attendance pool’’; that he in fact did not make various
of the alleged coercive statements attributed to him; or that
his secretary, who did not testify here, had telephoned the
mediator in advance to cancel the scheduled October 21
‘‘meeting.’’
In sum, on this full record, I am persuaded that the above-
quoted and cited testimony of Gary Scott, Jerome
Diekemper, David McGlynn, Todd O’Laughlin, Ken Torti,
Larry Riddle, and John Link represents a complete and trust-
worthy account of the pertinent sequence of events. And, in-
sofar as the testimony of Richard Riesenbeck, Kenneth
Smelcer, and Michael Elliot conflicts with the above testi-
mony of Gary Scott, Jerome Diekemper, David McGlynn,
Todd O’Laughlin, Ken Torti, Larry Riddle, and John Link,
I find the testimony of the latter witnesses to be more trust-
worthy and reliable.
Discussion
Section 7 of the National Labor Relations Act guarantees
employees the ‘‘right to self-organization, to form, join or as-
sist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining
or other mutual aid or protection,’’ as well as the right ‘‘to
refrain from any or all such activities.’’ Section 8(fiMDBUfl*ERR17*fiMDN
the Act makes it an unfair labor practice for an employer ‘‘to
interfere with, restrain or coerce employees in the exercise
of’’ their Section 7 rights. The ‘‘test’’ of ‘‘interference, re-
straint and coercion under Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*E
turn on the employer’s motive or on whether the coercion
succeeded or failed . . . [t]he test is whether the employer
engaged in conduct, which it may reasonably be said, tends
to interfere with the free exercise of employee rights under
the Act.’’ See NLRB v. Illinois Tool Works, 153 F.2d 811,
814 (fiMDBUfl*ERR17*fiMDNMfl7th Cir. 1946)fiMDBUfl*ERR17*fiMDNMfl
of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMD
engaging in union activity they have stabbed . . . manage-
ment in the back’’ (fiMDBUfl*ERR17*fiMDNMflBelding Hausman Fabrics,
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75GOLDEN EAGLE SPOTTING CO.
239 (fiMDBUfl*ERR17*fiMDNMfl1990)fiMDBUfl*ERR17*fiMDNMfl)fiMDBUfl*ERR17*fiMDNMfl; by ‘‘promising benefits to employees’’ ‘‘wi
without the union’’ (fiMDBUfl*ERR17*fiMDNMflAPRA Fuel Oil, 309 NLRB 480 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDN
by telling employees that they will be fired or terminated if
they participate in an economic strike against the employer
(fiMDBUfl*ERR17*fiMDNMflCasa Duramax, Inc., 307 NLRB 213 (fiMDBUfl*ERR17*fiMDNMfl1992)fiMDBUfl*ERR17*fiMDNMfl)fiMDBUfl*
ing employees that he ‘‘would never sign a union contract’’
or bargain in good faith with their certified collective-bar-
gaining agent and, further, threatening employees with ‘‘re-
prisals’’ because of their protected union activities (fiMDBUfl*ERR17*fiMDNMflOvernite
Transportation Co., 296 NLRB 669 (fiMDBUfl*ERR17*fiMDNMfl1989)fiMDBUfl*ERR17*fiMDNMfl, enfd. 938 F.2d
815 (fiMDBUfl*ERR17*fiMDNMfl7th Cir. 1991)fiMDBUfl*ERR17*fiMDNMfl)fiMDBUfl*ERR17*fiMDNMfl.
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl of the A
practice for an employer ‘‘to refuse to bargain collectively
with the representative of his employees.’’ Section 8(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl of
the Act explains that ‘‘to bargain collectively is the mutual
obligation of the employer and the representative of the em-
ployees to meet at reasonable times and confer in good faith
with respect to wages, hours and other terms and conditions
of employment.’’ In NLRB v. Insurance Agents’ Union, 361
U.S. 477, 485, 486 (fiMDBUfl*ERR17*fiMDNMfl1960)fiMDBUfl*ERR17*fiMDNMfl, the Supreme Court recognized
that ‘‘[c]ollective bargaining . . . is not simply an occasion
for purely formal meetings between management and labor
while each maintains an attitude of take it or leave it; it pre-
supposes a desire to reach ultimate agreement, to enter into
a collective bargaining contract’’; though ‘‘the parties need
not contract on any specific terms . . . they are bound to
deal with each other with a serious attempt to resolve dif-
ferences and reach a common ground.’’ Similarly, in NLRB
v. Katz, 369 U.S. 736, 747 (fiMDBUfl*ERR17*fiMDNMfl1962)fiMDBUfl*ERR17*fiMDNMfl, the Supreme Court held
that the parties must refrain not only from behavior ‘‘which
reflects a cast of mind against reaching agreement,’’ but
from behavior ‘‘which is in effect a refusal to negotiate or
which directly obstructs or inhibits the actual process of dis-
cussion.’’ As stated by the court of appeals in NLRB v. Gen-
eral Electric, 481 F.2d 736, 762 (fiMDBUfl*ERR17*fiMDNMfl2d Cir. 1969)fiMDBUfl*ERR17*fiMDNMfl, cert. denied
397 U.S. 965 (fiMDBUfl*ERR17*fiMDNMfl1970)fiMDBUfl*ERR17*fiMDNMfl:
[T]he statute clearly contemplates that to the end of en-
couraging productive bargaining, the parties must make
‘‘a serious attempt to resolve differences and reach a
common ground’’ . . . an effort inconsistent with ‘‘a
predetermined resolve not to budge from an initial posi-
tion.’’ . . . A pattern of conduct by which one party
makes it virtually impossible for him to respond to the
other—knowing that he is doing so deliberately—
should be condemned by the same rationale that pro-
hibits ‘‘going through the motions’’ ‘‘with a predeter-
mined resolve not to budge from an initial position’’
[citations omitted].
And, the Board, with court approval, ‘‘has repeatedly admon-
ished that parties to collective bargaining are obligated to
display as great a degree of diligence and promptness in the
discharge of their bargaining obligations as they display in
other business affairs of importance,’’ for ‘‘[a]greement is
stifled at its source if opportunity is not accorded for discus-
sion or so delayed as to invite or prolong unrest or sus-
picion.’’ See Little Rock Downtowner, Inc., 145 NLRB 1286,
1305 (fiMDBUfl*ERR17*fiMDNMfl1964)fiMDBUfl*ERR17*fiMDNMfl, enfd. 341 F.2d 1020 (fiMDBUfl*ERR17*fiMDNMfl8th Cir. 1965)fiMDB
cited.
An employer violates this statutory duty to bargain in
good faith when he makes ‘‘unilateral changes in conditions
of employment under negotiation’’ for, as the court of ap-
peals explained in Television Artists AFTRA v. NLRB, 395
F.2d 622 (fiMDBUfl*ERR17*fiMDNMflD.C. Cir. 1968)fiMDBUfl*ERR17*fiMD
unilaterally implement such changes that ‘‘are reasonably
comprehended within his pre-impasse proposals’’ ‘‘after bar-
gaining to an impasse, that is, after good faith negotiations
have exhausted the prospects of concluding an agreement
. . .’’; there must be ‘‘no realistic possibility that continu-
ation of discussion at that time would be fruitful.’’ As the
Board restated in Sierra Publishing Co., 291 NLRB 552
(fiMDBUfl*ERR17*fiMDNMfl1988)fiMDBUfl*ERR17*fiMDNMfl, ‘‘[o]nly in
a complete breakdown in the entire negotiations is the em-
ployer free to implement his last, best and final offer.’’ Like-
wise, as noted in Kendall College, 228 NLRB 1083, 1088
(fiMDBUfl*ERR17*fiMDNMfl1977)fiMDBUfl*ERR17*fiMDNMfl, enfd. 570 F.
where an employer promotes bargaining unit employees
to supervisory positions, with a consequent abolition of
unit jobs, th[is] duty to bargain [also] arises.
In addition, an employer also violates this statutory duty to
bargain in good faith ‘‘by withdrawing or modifying out-
standing bargaining proposals in order to frustrate bargaining
or to prevent reaching an agreement.’’ See Northwest Pipe
& Casing Co., 300 NLRB 726, 734 (fiMDBUfl*ERR17*fiMDNMfl1990)fiMDBU
Applying the foregoing settled principles of labor law to
the credited evidence of record in the instant case, I find and
conclude that Respondent Employer resorted to proscribed
interference, restraint, and coercion in violation of Section
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR
gain in good faith with the certified bargaining agent of an
appropriate unit of its employees in violation of Section
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR
Thus, as the credited evidence of record detailed and cited
above shows, the Union wrote the Employer on December
13, 1993, ‘‘reques[ting] that [the] Company promptly com-
mence negotiations with [the Union] on a labor agreement.’’
The parties first met on January 27, 1994. Company Presi-
dent Riesenbeck asked, ‘‘[I]f it would be permissible . . . to
negotiate on Thursday evenings and during the day on Friday
because he was going to have [present] his consultant,
Smelcer, who [had] to travel from Iowa.’’ The Union agreed
stating that it was ‘‘willing and ready to negotiate anytime
and any place.’’ The next meeting was scheduled for March
25. The Union presented at this second meeting a ‘‘complete
contract proposal’’; however, Riesenbeck ‘‘didn’t want to
begin bargaining without his consultant Smelcer’’ who was
not present.
The next meeting was scheduled for April 8; however, the
Company ‘‘canceled’’ this session. The next meeting was
scheduled for April 15. Again, Company President
Riesenbeck showed up for this third meeting without his
consultant who assertedly ‘‘was closing on his house.’’ The
Union had not ‘‘been advised of this before going to this
meeting.’’ As Union Representative Scott testified,
at that particular time . . . since the Company had the
Union’s proposal for over two weeks, we started to go
through the proposal to see if the Company had any
questions with anything or if we could start putting
some of these items to bed.
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76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Scott recalled, inter alia, that the ‘‘preamble’’ ‘‘language was
agreed to’’ by Riesenbeck except for ‘‘the insertion of
dates’’ and marked ‘‘okay.’’ The ‘‘recognition and bargain-
ing unit’’ language ‘‘was marked as okay . . . after getting
told by Riesenbeck that that was okay with him.’’ Other pro-
posals were discussed and ‘‘marked as okay.’’ Specifically,
Under Art. 2, . . . Union security, . . . the Company
said the language was fine except . . . they had a prob-
lem with the 31st day because their current procedure
was to have a probationary period of six months. And,
the dues check off, he [Riesenbeck] didn’t really want
to get into that . . . he was a small Company and he
only had one secretary in St. Louis and . . . Hannibal
. . . . And so, I [Scott] put a question mark by that be-
cause he [Riesenbeck] needed to talk to his payroll peo-
ple . . . .
Under Art. 12, the grievance and arbitration proce-
dure, [Riesenbeck] said that he would have to check
with his consultant, that he didn’t know how that situa-
tion worked. But what he did know about it he did not
like.
As Scott credibly noted, at no time during this session did
Riesenbeck claim ‘‘that he was without authority to enter
into any agreement for the Company’’ and, ‘‘other than with
respect to the grievance and arbitration procedure, did he say
that he needed to speak with his advisor.’’ Further,
Riesenbeck had never claimed that ‘‘only his consultant
could bind the Company.’’
The company representatives, including Smelcer, arrived at
the next session on April 21 about 30 minutes late. The par-
ties continued discussing the Union’s ‘‘proposals’’ from
where they ‘‘had left off at the previous meeting of April
15.’’ Union Representative Scott recalled, inter alia,
[W]e went on to the job security [and the supervisory
employees] provision . . . . Riesenbeck said that he
wanted general manager Summers to perform bargain-
ing unit work as the needs of the business war-
ranted. . . . [W]e were willing to insert that the Em-
ployer shall not direct [or] require any of its employees,
other than the general manager, who are not included
within the bargaining unit covered by this agreement, to
do or perform any work . . . . [W]e told them that
they had leadmen [or shift leaders] for spotters and
leadmen for loaders on the different shifts, and we
would allow those people to work . . . they were . . .
bargaining unit members and not supervisors.
The next meeting was scheduled for 6 p.m. on May 12.
The company representatives, again without Smelcer, arrived
about 30 minutes late. Union Representative Scott testified:
With regards to not letting [General Manager] Mike
[Summers] occasionally drive a truck when someone
doesn’t show up, that’s when the discussions arose re-
garding the handwritten language on Secs. 2 and 3 of
job security [as shown in longhand on G.C. Exh. 10].
After we did those handwritten notes [or modifications
of the Union’s initial proposal to reflect the Employer’s
concerns], [Company President] Riesenbeck agreed to
Secs. 2 and 3 [as reflected in G.C. Exh. 10].
Scott again credibly noted that Company President
Riesenbeck had not claimed that ‘‘he was without authority
to enter into an agreement for the Employer’’ or that ‘‘he
could not make an agreement without Smelcer.’’
Smelcer showed up at this May 12 meeting about 3-1/2
hours late, and, as Scott recalled,
[Smelcer’s] words upon arrival [were], ‘‘Nothing has
been agreed to yet.’’ [Union attorney] Diekemper
[said], ‘‘I beg your pardon there’s been several things
agreed to . . .’’ and he [Diekemper] started reading
from his proposals going back to the first meeting that
Diekemper was involved . . . on April 15 . . . . [Fol-
lowing a caucus] Smelcer [came] back into the room
and [said], ‘‘They have a problem . . . if the Union
thinks that Riesenbeck has agreed to certain items al-
ready.’’ He [Smelcer] wanted to stop there until we
could resolve that issue. . . . Diekemper . . . ex-
plained to Smelcer that we felt misled . . . and the
Union believed at that time that the Company was
doing nothing but stalling . . . knowing we were under
a one year certification rule. Riesenbeck stated he want-
ed to adjourn for the day . . . [and] they were going
to cancel [the next day’s session]. I [Scott] told him
[Riesenbeck] . . . it’s getting late . . . we’re going into
June . . . you are only allowing me to negotiate with
you four hours a month . . . I need a proposal from the
Company . . . I need to set some dates . . . .
Riesenbeck told me that he would have Smelcer draw
up a counterproposal or some Company counterpropos-
als and get them to the Union prior to our next meet-
ing.
According to Company President Riesenbeck, ‘‘it was the
Company’s position at that time that any of the discussions
or agreements during the March 25th, April 15th or April
[21st] negotiating sessions were no longer binding.’’
The next meeting was scheduled for June 3; however, on
May 25, Company President Riesenbeck notified the Compa-
ny’s three unit leadmen that they were being promoted out
of the unit into newly created supervisory positions. The
credited evidence of record makes it clear that these three
former unit employees thereafter continued to perform their
same ‘‘duties’’; did not exercise any indicia of supervisory
status; and were in fact told by Riesenbeck:
During this period of time it is an unfair labor practice
if we raise anyone’s salary other than Management.
Therefore I am recommending that the first of June we
promote you three leadmen to shift supervisors.
Scott was first given a copy of the company document pro-
moting the three unit leadmen by a unit employee on June
1, shortly prior to the next meeting between the parties. Scott
credibly explained that the parties had never discussed ‘‘pro-
moting [unit] shift leaders to supervisory positions’’ and the
Union had never ‘‘agreed to these ‘‘promotions.’’ Further,
there are no longer, as a consequence of this unilateral
change, any unit ‘‘shift leaders,’’ thereby eliminating 3 of
some 27 unit positions.
The parties met for the sixth time on June 3. The Em-
ployer first presented its proposed ‘‘agreement’’ at this ses-
sion, over 5 months after the commencement of bargaining.
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77GOLDEN EAGLE SPOTTING CO.
Again, the Employer also arrived late for this meeting and
took additional time to correct ‘‘typos’’ in its proposed
‘‘agreement.’’ Later, Company Consultant Smelcer an-
nounced that he ‘‘had to leave [early at] . . . 7:30 p.m.’’
Union Representative Scott, referring to the Employer’s pro-
posed ‘‘agreement,’’ recalled:
[Under art. 11, the grievance procedure] . . .
[Riesenbeck] wanted to be the final and binding arbitra-
tor and that the Union was going to agree to and live
by his decisions. . . . [Riesenbeck] told me to be as-
sured that he was a fair guy.
Under article 12, supervisory employees, the Company was
now proposing that ‘‘supervisors may perform any bargain-
ing unit work at any time needed to further the interests of
the business.’’ Scott protested:
When we started out these negotiations we had one su-
pervisor. Today we have four. Next week [we] might
have 12. And by the time I get a contract I won’t have
any [unit employees]. . . . I told them I could not ac-
cept that . . . . I said that if they are supervisors they
are not going to be in the unit, and if they are going
to be supervisors they are not going to be performing
bargaining unit work. . . . I had previously agreed to
allow [general manager] Summers to do what
Riesenbeck had said and that was to fill in for absentee
problems. But now, seeing where he was going with
this, I told him, absolutely not.
And, under article 16, wages, the Employer proposed:
Sec. 1. Wages shall be determined by management
for each employee within the indicated ranges . . .:
All regular full time employees classified as drivers
. . . $6.50–$10.00 per hr.
All regular full time employees classified as loaders
. . . $6.50–$9.00 per hr.
All part time employees classified as drivers or load-
ers . . . $5.50–$9.00 per hr., without fringe benefits.
Scott testified:
I [Scott] told him [Riesenbeck] that it was totally unac-
ceptable . . . nowhere in my life have I ever seen a
range where the Employer would say certain people can
make this and certain people can make that.
The seventh meeting of the parties was on June 21. Again,
the company representatives arrived late for this meeting. In
discussing the Employer’s proposed ‘‘agreement,’’ Scott
noted, inter alia, that under article 18, welfare, he asked
Riesenbeck: ‘‘are you telling me that if you decided to dis-
continue health and welfare coverage for non-bargaining unit
employees it would be discontinued for all employees,’’ and
Riesenbeck responded: ‘‘correct.’’ Further, as Scott recalled,
the Employer ‘‘made no reference to a pension plan, [al-
though] the Company told me in previous negotiations that
they would consider a pension plan.’’ Further, article 22 of
the Employer’s proposed ‘‘agreement’’ contains the Employ-
er’s counter-proposed substance abuse policy. A discussion
ensued. Finally, as Scott testified, ‘‘Riesenbeck then told me
[Scott] that he didn’t care to have a policy on substance
abuse . I said fine and I would so note it.’’
Additional negotiation sessions were scheduled for July 14
and 15, however, later, the Company again ‘‘canceled.’’
The Employer’s representatives arrived about an hour late
for the eighth scheduled meeting on July 20. Scott then gave
to the Company ‘‘a counterproposal from the Union for a
complete labor agreement’’ which ‘‘incorporated some of the
previously agreed items.’’ Scott noted a number of ‘‘changes
from the Union’s original position’’ as well as ‘‘deletions.’’
Thus, for example, the Union’s proposed vacations were re-
duced to a maximum of 5 weeks; two proposed holidays
were deleted; proposals pertaining to supervisory employees
were ‘‘changed . . . to allow that supervisors may perform
the bargaining unit work’’ under certain circumstances; union
premium pay proposals were deleted; specific union wage
counterproposals were made; and reference to a proposed
substance abuse proposal was deleted ‘‘because at the pre-
vious meeting the Company indicated that it didn’t want it
and I [Scott] agreed to that.’’
Riesenbeck ‘‘stated, just looking at our proposal, it is not
acceptable.’’ Scott recalled, inter alia, that the ‘‘Company
. . . said no to . . .’’ the Union’s ‘‘unauthorized activity’’
and ‘‘funeral leave’’ proposals which the ‘‘parties had pre-
viously agreed to’’ ‘‘and signed off on’’ at the June 21 meet-
ing. Scott further recalled that Smelcer then said that ‘‘they
needed substance abuse’’ provisions, and Scott responded:
[T]ell me if you want one or tell me if you don’t want
one . . . I don’t know what you want . . . you change
every time I meet with you . . . we agree to something
and the next meeting we don’t agree.
The ninth meeting of the parties was on July 21. Again,
the Employer’s representatives arrived late. At the beginning
of this meeting, the Employer furnished to the Union for the
first time a document pertaining to a ‘‘safety and attendance
incentive pool’’ proposal, dated July 20, 1994, signed by
Company President Riesenbeck, addressed to unit personnel,
and by its terms ‘‘effective July 1.’’ Scott credibly explained
that this was ‘‘the first time’’ that he had ‘‘learned that the
safety and attendance incentive pool would be effective July
1,’’ and he had never ‘‘agreed to this plan.’’ In addition, as
the credited evidence of record shows, Company Consultant
Smelcer then handed Union Representative Scott a copy of
the Employer’s July 21 counterproposals. The Employer re-
viewed its counterproposals. ‘‘[T]he only discussion’’ on the
Union’s proposed union security clause was simply a rejec-
tion. On leave of absence, ‘‘the Union countered with lan-
guage [which] the Company agreed to.’’ On discharge,
‘‘[Union Attorney] Diekemper again asked about just cause
for discharge’’ and ‘‘Smelcer again said it was associated
with arbitration’’ and ‘‘the Company doesn’t want any part
of arbitration.’’ On supervisors, the Company ‘‘wants their
supervisors to perform bargaining unit work.’’ On seniority,
the Union agreed to ‘‘company seniority.’’ On wages, the
Company rejected the union counterproposal and ‘‘proposed
[the Company’s] language as it was before’’ ‘‘within a
range’’; however, the parties did agree on overtime at time
and a half. On stewards, the Company ‘‘changed its mind’’
on matters ‘‘previously agreed to.’’ On welfare, the Com-
pany made no further counterproposals and the Company
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78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
‘‘was looking into its own’’ pension program. On substance
abuse, the Company ‘‘wanted [its] substance abuse’’ plan
and the Union stated that it would ‘‘counterpropose at a later
date.’’
The Union then announced that it ‘‘wanted to request the
assistance of the FMCS.’’ The Employer, in turn, insisted
that it only wanted to meet for ‘‘one day’’ and not for ‘‘two
days in a row.’’ As a consequence, the Union wrote the Em-
ployer on August 8:
This is . . . to express [the Union’s] concern with the
inordinate delays in the bargaining process necessitated
by the lack of availability by your bargaining commit-
tee. Over the past seven months we have only been
able to schedule nine bargaining sessions and some of
them for only short periods of time. The Union has re-
peatedly indicated that its schedule was open for entire
week blocks of time, yet our sessions were relegated to
once or twice a month because of the Company’s com-
mitments. We need to begin serious negotiations to-
wards reaching an agreement.
The tenth meeting of the parties was scheduled to begin
1 p.m. on August 18 ‘‘at the Federal Mediation office.’’ The
Employer arrived late about 2 p.m. Union Representative
Scott explained that, after going through his ‘‘proposal,’’
which ‘‘reflected past agreements as closed,’’ ‘‘areas where
there had been no agreements as open,’’ and ‘‘underlined
areas as changes from the Union’s position from the July 20
session,’’ the ‘‘parties caucused.’’ The parties then presented
further counterproposals. Scott credibly recalled:
The Company came back [from caucus] and Smelcer
stated they were very disappointed in the way the coun-
terproposals were presented by the Union. They were
not here to horse trade and they believed that is what
I [Scott] was doing. I [Scott] said that that is no dif-
ferent than your proposal telling me that you would ac-
cept my discharge [proposal] for [their] just cause [pro-
posal] if I accepted [their] grievance and arbitration
[proposal]. And they said, irregardless, we’re adjourn-
ing for today. . . . I got upset because it was only 6:15
p.m. I said that this was just another blatant attempt of
not wanting to continue to meet as previously prom-
ised. . . . Riesenbeck then said . . . we’ll call you on
the 24th . . . we’ll provide you with answers to your
counterproposals and we’ll meet on August 25.
The Employer did not ‘‘call’’ the Union on August 24, or
‘‘provide . . . answers to . . . counterproposals and . . .
meet on August 25,’’ as promised. Instead, Company Presi-
dent Riesenbeck, on August 24, issued a letter to the unit
employees asserting, inter alia, that ‘‘we are basically at an
impasse’’; ‘‘I have agreed to about all of the Union’s de-
mands that I can and they don’t seem to want to give in to
us on anything more’’; and ‘‘I just can’t agree to anymore
of the things they want.’’ Riesenbeck, in this same letter, in-
vited the unit employees to meet with him on August 28.
There, Riesenbeck
told the employees that the Union wanted a third per-
son to come in and be the person that decides disputes
when the Union and the Company have a dispute, . . .
and there was no way that he was going to allow that
to happen . . . if they didn’t like it . . . to just go
ahead and strike . . . the only way he was going to
sign a contract was under his terms and his terms only
. . . the only agreement on wages was going to be . . .
on his terms . . . and that there was no way that he
was going to agree to the Union’s proposals.
As Union Representative Scott credibly explained, how-
ever, the Employer had not ‘‘told the Union that it thought
they were at impasse,’’ and the Union was ‘‘still proposing
items that represented movement on the Union’s position.’’
Scott also had not ‘‘received a response’’ to his August 18
‘‘counterproposals.’’ Indeed, counsel for Respondent Em-
ployer, during colloquy, when asked whether or not he was
claiming ‘‘impasse at this point,’’ responded: ‘‘On the 24th
there was basically an impasse. But we made some pretty
substantial changes after that.’’
The next bargaining meeting ‘‘was scheduled’’ at Scott’s
request at the Federal Mediation office for October 21. Scott
and the Union’s bargaining team showed up at the Federal
Mediation office on October 21. The union representatives
and the mediator waited for about an hour. The company
representatives never appeared. The mediator, at Scott’s re-
quest, then arranged for another meeting at 5 p.m. on No-
vember 17 in the Federal Mediation office. The Employer ar-
rived at this November 17 meeting about 45 minutes late.
Scott recalled Riesenbeck telling the mediator that ‘‘we [the
Employer] have been sitting across the street at the bar . . .
we just didn’t want to come over here.’’ Riesenbeck then re-
stated the Employer’s positions on various items and accused
the Union ‘‘of want[ing] [bargaining unit employees] to lose
their jobs’’ by requesting ‘‘industry seniority.’’ Scott re-
sponded disputing Riesenbeck’s assertion. Scott urged
Riesenbeck to ‘‘get down to the issues’’ and ‘‘let’s get mov-
ing.’’ The Employer instead announced:
The Company was going to present the Union with a
final offer . . . [and] they planned on implementing it
on December 17 . . . and the wages on December 15
. . . .
This document . . . was distributed . . . [and the Em-
ployer stated] this was the Company’s final offer.
Scott then observed that ‘‘previous negotiations had resulted
in numerous agreements between the parties that have been
. . . left out of the Company’s final proposal.’’ Counsel for
the Employer replied:
Look, because of so many [omitted agreements], he
wanted an opportunity to go back and prepare . . . an-
other complete final offer with all the agreed upon
changes, and get it to [Scott’s] office the following day.
Again, as Scott credibly noted, no ‘‘impasse’’ had been
declared by the Employer. The November 17 meeting ended.
Commencing on the evening of November 17, as the cred-
ited evidence of record shows, Company President
Riesenbeck apprised unit employees: ‘‘Guys, don’t let them
talk you out of your jobs. Anybody that goes on strike will
be fired and not rehired.’’
Employees were also told by Riesenbeck that the Com-
pany had given the Union ‘‘a final proposal’’; that ‘‘included
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79GOLDEN EAGLE SPOTTING CO.
in this final proposal would be [wages of] $9 an hour for the
loaders and $9.50 an hour for the drivers’’; that ‘‘we were
going to get that [wage increase] with or without the Union
[on] December 15’’; that ‘‘we would not get our jobs back
if he won the strike’’; and that, before the 1993 Board-con-
ducted representation election, ‘‘he [Riesenbeck] had asked
for a year . . . we had fcked him by voting the Union in
. . . we really stabbed him in the back by doing that.’’
In addition, an employee was openly threatened with phys-
ical violence by Riesenbeck because of the employee’s pro-
tected union activities.
Finally, on December 8, almost 3 weeks late, counsel for
the Employer mailed to Union Representative Scott the
‘‘Company’s last offer.’’ Counsel stated that he ‘‘was sorry
for the delay.’’ This ‘‘last offer’’ was ‘‘supposed to reflect
all the agreed upon changes, prior agreements, . . . along
with the Company’s position on unresolved items.’’ How-
ever, as Scott credibly explained, ‘‘this document does not
reflect the agreed upon’’ items; ‘‘inserted things that were
agreed to be deleted’’; and included language ‘‘never . . .
discussed’’ or ‘‘agreed to.’’ Scott noted, inter alia, that the
Company ‘‘had always taken the position of a one year con-
tract’’ and the Union ‘‘had always taken the position of a
three year agreement’’; however, ‘‘this [last offer] provides
for a two year contract’’ despite the absence ‘‘of any discus-
sion of a two year contract.’’ Scott again credibly noted that
the Employer had not ‘‘claimed that the parties were at im-
passe’’ and there were a number of ‘‘outstanding articles’’
at the time, including union security, discharge, vacations,
holidays, grievance procedures, supervisory employees,
hours, wages, picketing and struck goods, health and welfare
and pensions, management rights, successor, job security,
and substance abuse. The Union ‘‘was . . . willing to make
proposals and movement on these articles.’’ The Employer
thereafter ‘‘implemented its final proposal.’’ Indeed, on Feb-
ruary 15, 1995, a unit employee, Link, was disciplined pur-
suant to the Employer’s implemented substance abuse policy.
This record makes it clear that Respondent Employer was
unwilling to make ‘‘a serious attempt to resolve differences
and reach a common ground’’ with the Union. See cases
cited supra. The Employer, as demonstrated above, repeat-
edly failed and refused to meet with the Union at reasonable
times, repeatedly canceled scheduled meetings, and repeat-
edly arrived late and left early from meetings. At their fifth
May 12 meeting, Union Attorney
Diekemper . . . explained to [Company Consultant]
Smelcer that we felt misled . . . and the Union be-
lieved at that time that the Company was doing nothing
but stalling . . . knowing we were under a one year
certification rule. [Company President] Riesenbeck stat-
ed he wanted to adjourn for the day . . . [and] they
were going to cancel [the next day’s session]. I [Scott]
told him [Riesenbeck] . . . it’s getting late . . . we’re
going into June . . . you are only allowing me to nego-
tiate with you four hours a month . . . I need a pro-
posal from the Company . . . I need to set some dates.
The Employer first presented its ‘‘proposed’’ agreement’’ at
the sixth meeting of the parties on June 3, over 5 months
after the commencement of bargaining. Again, the Employer
arrived late and Smelcer had to leave earlier than scheduled.
The Union wrote the Employer on August 8:
This is . . . to express [the Union’s] concern with the
inordinate delays in the bargaining process necessitated
by the lack of availability by your bargaining commit-
tee. Over the past seven months we have only been
able to schedule nine bargaining sessions and some of
them for only short periods of time. The Union has re-
peatedly indicated that its schedule was open for entire
week blocks of time, yet our sessions were relegated to
once or twice a month because of the Company’s com-
mitments. We need to begin serious negotiations to-
wards reaching an agreement.
The Employer even arrived late at the next session scheduled
at the Federal Mediation office, where the following ex-
change occurred:
The Company came back [from caucus] and Smelcer
stated they were very disappointed in the way the coun-
terproposals were presented by the Union. They were
not here to horse trade and they believed that is what
I [Union representative Scott] was doing. I [Scott] said
that that is no different than your proposal . . . . And
they said, irregardless, we’re adjourning for today. . . .
I got upset because it was only 6:15 p.m. I said that
this was just another blatant attempt of not wanting to
continue to meet as previously promised.
The Employer thereafter failed and refused to show up at the
October 21 meeting scheduled at the Federal Mediation of-
fice, and arrived late at the final meeting at the Federal Me-
diation office on November 17, stating that ‘‘we [the Em-
ployer] have been sitting across the street at the bar . . . we
just didn’t want to come over here.’’ Clearly, Respondent
Employer was failing and refusing ‘‘to meet at reasonable
times and confer in good faith,’’ in violation of its statutory
bargaining obligation.
Respondent Employer, during this sequence of events, also
eliminated three unit positions by promoting its shift leaders
to newly created supervisory positions excluded from the
unit and, further, implemented a safety and attendance bonus
program for the unit employees, all without prior notice to
and affording the Union an opportunity to bargain. The cred-
ited evidence of record makes it clear that these three former
unit employees thereafter continued to perform their same
‘‘duties’’; did not exercise any indicia of supervisory status;
and were in fact told by Company President Riesenbeck:
During this period of time it is an unfair labor practice
if we raise anyone’s salary other than Management.
Therefore I am recommending that the first of June we
promote you three leadmen to shift supervisors.
Union Representative Scott was first given a copy of the
company document promoting the three unit leadmen by a
unit employee on June 1, shortly prior to the next meeting
between the parties. Scott credibly explained that the parties
had never discussed ‘‘promoting [unit] shift leaders to super-
visory positions’’ and the Union had never ‘‘agreed to these
promotions.’’ In like vein, at the ninth meeting of the parties
on July 21, the Employer furnished to the Union for the first
time a document pertaining to a ‘‘safety and attendance in-
centive pool,’’ dated July 20, 1994, signed by Company
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80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
President Riesenbeck, addressed to unit personnel, and by its
terms ‘‘effective July 1.’’ Scott credibly explained that this
was ‘‘the first time’’ that he had ‘‘learned that the safety and
attendance incentive pool would be effective July 1’’ and he
had never ‘‘agreed to this plan.’’ Respondent Employer, by
this unilateral conduct, again acted in derogation of its statu-
tory bargaining obligation.
Respondent Employer also repeatedly engaged in unjusti-
fied, regressive bargaining in an attempt to further frustrate
and stall the collective-bargaining process. Thus, as Union
Representative Scott credibly recalled, at the April 15 meet-
ing of the parties,
Under Art. 2, . . . Union security, . . . the Company
said the language was fine except . . . they had a prob-
lem with the 31st day because their current procedure
was to have a probationary period of six months.
As Scott credibly noted, at no time during this session did
Company President Riesenbeck claim ‘‘that he was without
authority to enter into any agreement for the Company’’ and,
‘‘other than with respect to the grievance and arbitration pro-
cedure, did he say that he needed to speak with his advisor
. . . .’’ Further, Riesenbeck had never claimed that ‘‘only
his consultant could bind the Company.’’
Later, at the April 21 session, as Scott credibly recalled,
[W]e went on to the job security [and the supervisory
employees] provision . . . . Riesenbeck said that he
wanted general manager Summers to perform bargain-
ing unit work as the needs of the business war-
ranted. . . . [W]e were willing to insert that the Em-
ployer shall not direct [or] require any of its employees,
other than the general manager, who are not included
within the bargaining unit covered by this agreement, to
do or perform any work . . . . [W]e told them that
they had leadmen [or shift leaders] for spotters and
leadmen for loaders on the different shifts, and we
would allow those people to work . . . they were . . .
bargaining unit members and not supervisors.
Thereafter, at the May 12 meeting, as Scott credibly recalled:
With regards to not letting [General Manager] Mike
[Summers] occasionally drive a truck when someone
doesn’t show up, that’s when the discussions arose re-
garding the handwritten language on Secs. 2 and 3 of
job security [as shown in longhand on G.C. Exh. 10].
After we did those handwritten notes [or modifications
of the Union’s initial proposal to reflect the Employer’s
concerns], [Company President] Riesenbeck agreed to
Secs. 2 and 3 [as reflected in G.C. Exh. 10].
Scott again credibly noted that Company President
Riesenbeck had not claimed that ‘‘he was without authority
to enter into an agreement for the Employer’’ or that ‘‘he
could not make an agreement without Smelcer.’’
However, when Company Consultant Smelcer finally
showed up at this meeting some 3-1/2 hours late, he sum-
marily announced: ‘‘Nothing has been agreed to yet.’’ Union
Attorney Diekemper protested:
‘‘I beg your pardon there’s been several things agreed
to . . .,’’ and he [Diekemper] started reading from his
proposals going back to the first meeting that
Diekemper was involved . . . on April 15.
According to Company President Riesenbeck, ‘‘it was the
Company’s position at that time that any of the discussions
or agreements during the March 25th, April 15th or April
[21st] negotiating sessions were no longer binding.’’
Subsequently, at the June 3 meeting, the Company pro-
posed that ‘‘supervisors may perform any bargaining unit
work at any time needed to further the interests of the busi-
ness.’’ Scott protested:
When we started out these negotiations we had one su-
pervisor. Today we have four. Next week [we] might
have 12. And by the time I get a contract I won’t have
any [unit employees]. . . . I told them I could not ac-
cept that . . . . I said that if they are supervisors they
are not going to be in the unit, and if they are going
to be supervisors they are not going to be performing
bargaining unit work. . . . I had previously agreed to
allow [general manager] Summers to do what
Riesenbeck had said and that was to fill in for absentee
problems. But now, seeing where he was going with
this, I told him, absolutely not.
Thereafter, at the June 21 meeting, Company President
Riesenbeck, following a discussion over his counterproposed
substance abuse policy, announced that ‘‘he didn’t care to
have a policy on substance abuse,’’ and the Union said
‘‘fine.’’ However, at the July 20 meeting, Company Consult-
ant Smelcer said that ‘‘they needed substance abuse’’ provi-
sions. Scott protested:
tell me if you want one or tell me if you don’t want
one . . . I don’t know what you want . . . you change
every time I meet with you . . . we agree to something
and the next meeting we don’t agree.
This record shows that Respondent Employer, by the
above and related conduct, repeatedly violated its statutory
duty to bargain in good faith by regressively withdrawing or
modifying its outstanding proposals and agreements, without
justification, in order to frustrate bargaining and prevent
reaching an agreement.
Ultimately, Respondent Employer, despite its repeated fail-
ures to bargain in good faith, implemented what it called its
‘‘final offer.’’ Union Representative Scott credibly recalled
that at the final November 17 meeting of the parties, the Em-
ployer announced:
The Company was going to present the Union with
a final offer . . . [and] they planned on implementing
it on December 17 . . . and the wages on December
15 . . . .
This document . . . was distributed . . . [and the
Employer stated] this was the Company’s final offer.
Scott then observed that ‘‘previous negotiations had re-
sulted in numerous agreements between the parties that have
been . . . left out of the Company’s final proposal.’’ Counsel
for the Employer replied:
Look, because of so many [omitted agreements], he
wanted an opportunity to go back and prepare . . . an-
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81GOLDEN EAGLE SPOTTING CO.
10 The Employer has not effectively relieved himself of liability
here for coercively threatening to fire his employees if they engaged
in an economic strike by his November 20 memorandum. (fiMDBUfl*ERR17*fiMDNMfl
Exh. 23.)fiMDBUfl*ERR17*fiMDNMfl For, as the Board restated in Passavant Memor
Hospital, 237 NLRB 138, 138 (fiMDBUfl*ERR17*fiMDNMfl1978)fiMDBUfl*ERR17*fiM
To be effective . . . such repudiation must be timely, unambig-
uous, specific in nature to the coercive conduct, and free from
other proscribed illegal conduct . . . [quotations and citations
omitted].
On this record, the claimed repudiation falls substantially short of
this mark.
other complete final offer with all the agreed upon
changes, and get it to [Scott’s] office the following day.
Finally, on December 8, almost 3 weeks late, counsel for
the Employer mailed to Union Representative Scott the
‘‘Company’s last offer.’’ Counsel stated that he ‘‘was sorry
for the delay.’’ This ‘‘last offer’’ was ‘‘supposed to reflect
all the agreed upon changes, prior agreements, . . . along
with the Company’s position on unresolved items.’’ How-
ever, as Scott credibly explained, ‘‘this document does not
reflect the agreed upon’’ items; ‘‘inserted things that were
agreed to be deleted’’; and included language ‘‘never . . .
discussed’’ or ‘‘agreed to.’’ Scott noted, inter alia, that the
Company ‘‘had always taken the position of a one year con-
tract’’ and the Union ‘‘had always taken the position of a
three year agreement’’; however, ‘‘this [last offer] provides
for a two year contract’’ despite the absence ‘‘of any discus-
sion of a two year contract.’’ Scott again credibly noted that
the Employer had not ‘‘claimed that the parties were at im-
passe’’ and there were a number of ‘‘outstanding articles’’
at the time, including union security, discharge, vacations,
holidays, grievance procedures, supervisory employees,
hours, wages, picketing and struck goods, health and welfare
and pensions, management rights, successor, job security,
and substance abuse. The Union ‘‘was . . . willing to make
proposals and movement on these articles.’’ The Employer
thereafter ‘‘implemented its final proposal.’’ Indeed, on Feb-
ruary 15, 1995, a unit employee was disciplined pursuant to
the Employer’s implemented substance abuse policy. The
credited evidence of record amply establishes that Respond-
ent Employer never previously had such a substance abuse
policy or had ever tested an employee for drug abuse.
As stated supra,
an employer is only privileged to unilaterally imple-
ment such changes that ‘‘are reasonably comprehended
within his pre-impasse proposals’’ ‘‘after bargaining to
an impasse, that is, after good faith negotiations have
exhausted the prospects of concluding an agreement
. . .’’; there must be ‘‘no realistic possibility that con-
tinuation of discussion at that time would be fruitful
. . .’’; ‘‘Only in this latter context where there has
been a complete breakdown in the entire negotiations is
the employer free to implement his last, best and final
offer.’’
This record makes it clear that the parties, as a consequence
of the Employer’s unlawful conduct, had not bargained in
good faith to impasse, and, consequently, Respondent Em-
ployer, by its unilateral implementation of its so-called ‘‘final
offer,’’ further violated its statutory bargaining obligation.
Company President Riesenbeck made clear to his unit em-
ployees:
He [Riesenbeck] told the employees that the Union
wanted a third person to come in and be the person that
decides disputes when the Union and the Company
have a dispute, . . . and there was no way that he was
going to allow that to happen . . . .
He told the employees that the only way he was
going to sign a contract was under his terms and his
terms only . . . .
With wages, he told the employees that the Union’s
proposal was utterly ridiculous and that he wanted to be
able to give people that he thought deserved wage in-
creases [their] increases . . . that is why he proposed
the wage range . . . . He said the only agreement on
wages was going to be . . . on his terms . . . and that
there was no way that he was going to agree to the
Union’s proposals.
Assessed in this context, Respondent Employer’s insistence
on a grievance system which would cede final and binding
authority to Company President Riesenbeck and its insistence
on a wage system which reserved sole discretion in determin-
ing unit employee wages within a wide range, were further
unlawful manifestations of its refusal to bargain in good
faith.
Turning to the independent 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR
clear that Respondent Employer engaged in conduct which
tended to impinge on employee Section 7 rights by inform-
ing employees that the Employer would not bargain in good
faith with the Union, the duly certified collective-bargaining
agent of an appropriate unit of its employees, and that the
Union’s bargaining with the Employer would be futile; by
informing employees that the Employer would not bargain in
good faith with the Union concerning employee wages; by
threatening to discharge employees if they went on strike; by
telling employees that supporting the Union was disloyal to
the Employer; by promising to grant employees wage raises
even if they were not represented by the Union; and by
threatening an employee with physical harm or other repris-
als because of the employee’s union activities, as alleged.10
CONCLUSIONS OF LAW
1. Respondent Employer is engaged in commerce and
Charging Party Union is a labor organization as alleged.
2. Charging Party Union is the exclusive collective-bar-
gaining agent of the following appropriate unit of Respond-
ent Employer’s employees:
All full time and regular part time spotting/drivers and
loading employees employed by Respondent at its St.
Louis, Missouri facility, excluding office clerical and
professional employees, guards and supervisors as de-
fined in the Act.
3. Respondent Employer has interfered with, restrained,
and coerced its employees in the exercise of their Section 7
rights, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR
Relations Act, by informing employees that the Employer
would not bargain in good faith with the Union, the duly cer-
tified collective-bargaining agent of an appropriate unit of its
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82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
11 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
employees, and that the Union’s bargaining with the Em-
ployer would be futile; by informing employees that the Em-
ployer would not bargain in good faith with the Union con-
cerning employee wages; by threatening to discharge em-
ployees if they went on strike; by telling employees that sup-
porting the Union was disloyal to the Employer; by promis-
ing to grant employees wage raises even if they were not
represented by the Union; and by threatening an employee
with physical harm or other reprisals because of the employ-
ee’s union activities.
4. Respondent Employer has failed and refused to bargain
in good faith with the Union as the exclusive collective-bar-
gaining representative of an appropriate unit of its employ-
ees, in violation of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fi
inter alia, eliminating three unit positions by promoting shift
leaders to newly created supervisory positions excluded from
the unit and, further, by implementing a safety and attend-
ance bonus program for the unit employees, without prior
notice to the Union and affording the Union an opportunity
to bargain with respect to this conduct or the effects of this
conduct; by failing to meet with the Union at reasonable
times and, further, by arriving late and leaving earlier than
the agreed-on times at scheduled negotiation sessions; by en-
gaging in regressive bargaining withdrawing prior agree-
ments with respect to union security and drug-testing propos-
als; by making proposals regarding the grievance procedure
and changes in employee wages which grant the Employer
the exclusive right to determine the outcome of grievances
and wage changes; by its overall conduct during collective
bargaining; and, finally, by implementing its final offer
which made changes in employment conditions including but
not limited to wages, the grievance procedure, layoff and re-
call, and a mandatory alcohol and drug-testing policy for unit
employees, without reaching impasse on these issues, without
the Union’s consent and without affording the Union an ade-
quate opportunity to bargain with the Employer with respect
to this conduct.
5. The unfair labor practices found above affect commerce
as alleged.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent Employer will be directed to cease and desist from
engaging in such unlawful conduct or like and related con-
duct and to post the attached notice. Affirmatively, to effec-
tuate the purposes and policies of the Act, Respondent Em-
ployer will be directed to, on request by the Union, bargain
in good faith with the Union and, if an understanding is
reached, embody that understanding in a signed agreement.
Further, Respondent Employer will be directed to, on request
by the Union, rescind the unlawful implementation of its
final contract offer commencing on or about December 15,
1994, and reinstitute the wages and terms and conditions of
employment that existed before its unlawful conduct, and
make whole the unit employees for any losses suffered as a
result of its unlawful action in the manner prescribed in Ogle
Protection Service, 183 NLRB 682 (fiMDBUfl*ERR17*fiMDNMfl1970)fiMDBUfl*ERR17*fiMDNMfl, with interest to
be computed as provided in New Horizons for the Retarded,
283 NLRB 1173 (fiMDBUfl*ERR17*fiMDNMfl1987)fiMDBUfl*ERR17*fiMDNMfl. Respondent Employer will similarly
be directed to, on request by the Union, rescind its unlawful
elimination of the three unit shift leaders out of the unit and
its unlawful implementation of a safety and attendance bonus
program, and make whole the unit employees for any losses
suffered as a result of its unlawful action with interest as
provided above. However, to the extent that the above un-
lawful unilateral changes implemented by Respondent Em-
ployer may have improved the terms and conditions of em-
ployment of the unit employees, no provision of the Order
should in any way be construed as requiring Respondent Em-
ployer to revoke such improvements. See Sierra Publishing
Co., supra. Finally, in accordance with Mar-Jac Poultry Co.,
136 NLRB 785 (fiMDBUfl*ERR17*fiMDNMfl1962)fiMDBUfl*ERR17*fiMDNM
extended and not start running until Respondent Employer
first commences to fulfill its statutory obligation to bargain
in good faith.
The record shows that one employee, John Link, was dis-
ciplined and suspended as a consequence of Respondent Em-
ployer’s unlawfully adopted drug abuse program. Respondent
Employer will therefore be directed to, if it has not already
done so, offer employee Link reinstatement and make him
whole for any loss of earnings and other benefits sustained
as a result of this unlawfully adopted drug abuse program,
computed on a quarterly basis from the date of his suspen-
sion and discipline to the date of a proper offer of reinstate-
ment, less any net interim earnings, as prescribed in F. W.
Woolworth Co., 90 NLRB 289 (fiMDBUfl*ERR17*fiMDNMfl1950)fiMDBUfl*E
puted in New Horizons for the Retarded, supra. Respondent
Employer will also be directed to preserve and make avail-
able to the Board or its agents, on request, all payroll records
and reports and all other records necessary to determine
backpay and compliance under the terms of this Decision and
Order. And, Respondent Employer will be directed to ex-
punge from its files any references to the above disciplinary
action of employee Link and notify him in writing that this
has been done and that evidence of this unlawful action will
not be used as a basis for future personnel action against
him, in accordance with Sterling Sugars, 261 NLRB 472
(fiMDBUfl*ERR17*fiMDNMfl1982)fiMDBUfl*ERR17*fiMDNMfl.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended11
ORDER
The Respondent, Golden Eagle Spotting Company, Inc.,
Hannibal, Missouri, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl Interfering wi
ees in the exercise of their Section 7 rights, in violation of
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDB
forming employees that the Employer would not bargain in
good faith with the Union, Brewery Drivers and Helpers
Local Union 133, affiliated with International Brotherhood of
Teamsters, AFL–CIO, the duly certified collective-bargaining
agent of an appropriate unit of its employees, and that the
Union’s bargaining with the Employer would be futile; by
informing employees that the Employer would not bargain in
good faith with the Union concerning employee wages; by
threatening to discharge employees if they went on strike; by
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83GOLDEN EAGLE SPOTTING CO.
12 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
telling employees that supporting the Union was disloyal to
the Employer; by promising to grant employees wage raises
even if they were not represented by the Union; and by
threatening an employee with physical harm or other repris-
als because of the employee’s union activities.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl Failing and refusing to bargain in good faith with the
Union as the exclusive collective-bargaining representative of
an appropriate unit of its employees, in violation of Section
8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl and (fiMDBUfl*ER
unit positions by promoting shift leaders to newly created su-
pervisory positions excluded from the unit and, further, by
implementing a safety and attendance bonus program for the
unit employees, without prior notice to the Union and afford-
ing the Union an opportunity to bargain with respect to this
conduct or the effects of this conduct; by failing to meet with
the Union at reasonable times and, further, by arriving late
and leaving earlier than the agreed-on times at scheduled ne-
gotiation sessions; by engaging in regressive bargaining with-
drawing prior agreements with respect to union security and
drug-testing proposals; by making proposals regarding the
grievance procedure and changes in employee wages which
grant the Employer the exclusive right to determine the out-
come of grievances and wage changes; by its overall bad-
faith conduct during collective bargaining; and, finally, by
implementing its final offer which made changes in employ-
ment conditions including but not limited to wages, the
grievance procedure, layoff and recall, and a mandatory alco-
hol and drug-testing policy for unit employees, without
reaching impasse on these issues, without the Union’s con-
sent, and without affording the Union an adequate oppor-
tunity to bargain with the Employer with respect to this con-
duct. The appropriate bargaining unit is:
All full time and regular part time spotting/drivers and
loading employees employed by Respondent at its St.
Louis, Missouri facility, excluding office clerical and
professional employees, guards and supervisors as de-
fined in the Act.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl On request by the Union, bargain in good faith with
the Union as the exclusive collective-bargaining representa-
tive of the above appropriate unit of its employees with re-
spect to their wages, hours, and other terms and conditions
of employment and, if an understanding is reached, embody
that understanding in a signed agreement.
(fiMDBUfl*ERR17*fiMDNMflb)fiMDBUfl*ERR17*fiMDNMfl On request by the Union, rescind the unlawful imple-
mentation of its final contract offer commencing on or about
December 15, 1994, and reinstitute the wages and terms and
conditions of employment that existed before its unlawful
conduct, and make whole the unit employees for any losses
suffered as a result of its unlawful action, with interest, as
provided in the remedy section of the Board’s decision. On
request by the Union, rescind its unlawful elimination of the
three unit shift leaders out of the unit and its unlawful imple-
mentation of a safety and attendance bonus program, and
make whole the unit employees for any losses suffered as a
result of its unlawful action, with interest, as provided in the
remedy section of the Board’s decision. However, to the ex-
tent that the above unlawful unilateral changes implemented
by Respondent Employer may have improved the terms and
conditions of employment of the unit employees, no provi-
sion of this Order should in any way be construed as requir-
ing Respondent Employer to revoke such improvements.
(fiMDBUfl*ERR17*fiMDNMflc)fiMDBUfl*ERR17*fiMDNMfl In accordance
year certification period will be extended and not start run-
ning until Respondent Employer first commences to fulfill its
statutory obligation to bargain in good faith.
(fiMDBUfl*ERR17*fiMDNMfld)fiMDBUfl*ERR17*fiMDNMfl Offer employ
statement to his former job or, if that job no longer exists,
to a substantially equivalent position, without prejudice to his
seniority or any other rights or privileges previously enjoyed,
and make him whole for any loss of earnings and other bene-
fits suffered as a result of the Employer’s unlawful conduct
against him, with interest, as provided in the remedy section
of the Board’s decision.
(fiMDBUfl*ERR17*fiMDNMfle)fiMDBUfl*ERR17*fiMDNMfl Remove from
suspension and disciplining of employee Link and notify him
in writing that this has been done and that the unlawful sus-
pension and disciplining of him will not be used against him
in any way.
(fiMDBUfl*ERR17*fiMDNMflf)fiMDBUfl*ERR17*fiMDNMfl Preserve and,
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under and compliance with the terms
of this Order.
(fiMDBUfl*ERR17*fiMDNMflg)fiMDBUfl*ERR17*fiMDNMfl Post at its faci
‘‘Appendix.’’12 Copies of the notice, on forms provided by
the Regional Director for Region 14, after being signed by
the Respondent’s authorized representative, shall be posted
by the Respondent immediately upon receipt and maintained
for 60 consecutive days in conspicuous places including all
places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by any
other material.
(fiMDBUfl*ERR17*fiMDNMflh)fiMDBUfl*ERR17*fiMDNMfl Notify the Re
from the date of this Order what steps the Respondent has
taken to comply.
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 vio-
lated 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
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84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
To form, join, or assist any union
To bargain collectively through representatives of
their own choice
To act together for other mutual aid or protection
To choose not to engage in any of these protected
concerted activities.
WE WILL NOT interfere with, restrain, and coerce our em-
ployees in the exercise of their Section 7 rights, in violation
of Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl1)fiMDBUfl*ERR17*fiMDNMfl of the
informing employees that we will not bargain in good faith
with the Union, Brewery Drivers and Helpers Local Union
133, affiliated with International Brotherhood of Teamsters,
AFL–CIO, the duly certified collective-bargaining agent of
an appropriate unit of our employees, and that the Union’s
bargaining with us would be futile; by informing employees
that we will not bargain in good faith with the Union con-
cerning employee wages; by threatening to discharge em-
ployees if they go on strike; by telling employees that sup-
porting the Union is disloyal to us; by promising to grant
employees wage raises even if they are not represented by
the Union; and by threatening an employee with physical
harm or other reprisals because of the employee’s union ac-
tivities.
WE WILL NOT fail and refuse to bargain in good faith with
the Union as the exclusive collective-bargaining representa-
tive of an appropriate unit of our employees, in violation of
Section 8(fiMDBUfl*ERR17*fiMDNMfla)fiMDBUfl*ERR17*fiMDNMfl(fiMDBUfl*ERR17*fiMDNMfl5)fiMDBUfl*ERR17*fiMDNMfl and (fiMD
three unit positions by promoting shift leaders to newly cre-
ated supervisory positions excluded from the unit and, fur-
ther, by implementing a safety and attendance bonus program
for the unit employees, without prior notice to the Union and
affording the Union an opportunity to bargain with respect
to this conduct or the effects of this conduct; by failing to
meet with the Union at reasonable times and, further, by ar-
riving late and leaving earlier than the agreed-on times at
scheduled negotiation sessions; by engaging in regressive
bargaining withdrawing prior agreements with respect to
union security and drug-testing proposals; by making propos-
als regarding the grievance procedure and changes in em-
ployee wages which grant us the exclusive right to determine
the outcome of grievances and wage changes; by our overall
bad-faith bargaining conduct during collective bargaining;
and, finally, by implementing our final offer which made
changes in employment conditions including but not limited
to wages, the grievance procedure, layoff and recall, and a
mandatory alcohol and drug-testing policy for unit employ-
ees, without reaching impasse on these issues, without the
Union’s consent and without affording the Union an ade-
quate opportunity to bargain with us with respect to this con-
duct. The appropriate bargaining unit is:
All full time and regular part time spotting/drivers and
loading employees employed by the Employer at our
St. Louis, Missouri facility, excluding office clerical
and professional employees, guards and supervisors as
defined in the Act.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
WE WILL, on request by the Union, rescind the unlawful
implementation of our final contract offer commencing on or
about December 15, 1994, and reinstitute the wages and
terms and conditions of employment that existed before our
unlawful conduct, and make whole the unit employees for
any losses suffered as a result of our unlawful action, with
interest, as provided in the Board’s decision. WE WILL, on
request by the Union, rescind our unlawful elimination of the
three unit shift leaders out of the unit and our unlawful im-
plementation of a safety and attendance bonus program, and
make whole the unit employees for any losses suffered as a
result of our unlawful action, with interest, as provided in the
Board’s decision. However, to the extent that the above un-
lawful unilateral changes implemented by us may have im-
proved the terms and conditions of employment of the unit
employees, no provision of the Board’s Order should in any
way be construed as requiring us to revoke such improve-
ments.
WE WILL offer to employee John Link immediate and full
reinstatement to his former job or, if this job no longer ex-
ists, to a substantially equivalent position, without prejudice
to his seniority or any other rights or privileges previously
enjoyed, and make him whole for any loss of earnings and
other benefits suffered as a result of the unlawful disciplinary
action against him, with interest, as provided in the Board’s
decision.
WE WILL remove from ours files any reference to the un-
lawful suspension and disciplining of employee Link and no-
tify him in writing that this has been done and that evidence
of this unlawful action will not be used as a basis for future
personnel action against him.
WE WILL preserve and, on request, make available to the
Board or its agents for examination and copying, all payroll
records, social security payment records, timecards, personnel
records and reports, and all other records necessary to ana-
lyze the amount of backpay due under and compliance with
the terms of the Board’s Decision and Order.
GOLDEN EAGLE SPOTTING COMPANY, INC.
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