NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

American Standard Companies, Inc., American Standard Inc., d/b/a American Standard and Glass, Molders, Pottery, Plastics & Allied Workers International Union, AFL–CIO, CLC, and its Local Union No. 7A. Cases 8–CA–33352, 8–CA–33477, 8–CA–33551, 8–CA–33641, 8–CA–34284, 8–CA–34372, and 8–CA–34809

May 30, 2008

DECISION AND ORDER

By Chairman Schaumber and Member Liebman

On September 18, 2006, Administrative Law Judge Jane Vandeventer issued the attached decision.1 The Respondent, General Counsel, and Charging Party each filed exceptions and a supporting brief, an answering brief, and a reply brief.2 The General Counsel filed a motion to correct the transcript,3 as well as a motion to strike a portion of the Respondent’s brief in support of its exceptions. Regarding the latter motion, the Charging Party filed a supporting brief and the Respondent filed a brief in opposition.4

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,5 and conclusions as modified,6 and to adopt the recommended Order as modified below.7 The General Counsel excepted to the judge’s failure to award extraordinary remedies, as requested. We agree, for the reasons discussed by the judge, that the Board's traditional remedies are sufficient to address the unfair labor practices found.

This case primarily involves the parties’ bargaining for a successor collective-bargaining agreement in April 2002 and subsequent events related to that bargaining. We agree, for the reasons discussed by the judge, that the Respondent committed numerous unfair labor practices in this timeframe.8 In doing so, we reject the Respondent’s argument that it has already remedied several of these violations as part of a set-aside settlement agreement.9 Because the settlement agreement has been set aside, the notices posted pursuant thereto are of no effect and the Respondent should be ordered to post appropriate notices as a result of the Decision entered herein. General Printing Co., 263 NLRB 591, 594 (1982).

The major issue in this case is whether the parties reached a successor agreement in the late hours of April 30, and the early morning hours of May 1. The judge found, and we agree, that the parties had not reached agreement or impasse, and that consequently the Respondent violated Section 8(a)(5) on May 1, by abandoning negotiations.10 At the hearing, the judge prohibited the parties from introducing various pieces of evidence involving a private mediator employed by the parties during the late stages of their negotiations. The Respondent contends that the judge erred in this evidentiary ruling, and that it was precluded from introducing evidence that would have established that the parties reached agreement on a successor contract. We need not reach the issue, as the parties’ subsequent conduct—when the mediator was not present—establishes that the parties had not agreed on a successor contract.

In the late hours of April 30, after a month of protracted bargaining, the Union, through the mediator, indicated that it would agree to the Respondent’s most-recent economic proposal, but that, in exchange, the Respondent would need to agree to some specific economic changes as well as to the resolution of the many outstanding noneconomic issues. Around midnight (when the parties’ then-operative collective-bargaining agreement was scheduled to expire), the Respondent, through the mediator, apparently agreed to some of the specific changes requested by the Union, but the Respondent did not address the noneconomic issues. After the Union called a brief strike, the parties agreed to continue negotiating over the outstanding noneconomic issues with two teams of two representatives each. The mediator went to bed and was no longer involved after this point.

At approximately 1 a.m. on May 1, these teams began negotiating over an outstanding overtime provision. The parties agreed on some points, while agreeing to come back to other issues. At about 2 a.m., the parties began discussing an outstanding job bidding provision. Around 3:30 a.m., the parties agreed to break and reconvene at 10 a.m. While the Union was prepared to continue negotiating at that time, the Respondent, through its attorney, announced that the Respondent had only agreed to review—but not negotiate—the open noneconomic items, and that the parties had agreed on a successor contract.

We agree with the judge’s conclusion that the parties’ conduct in the early hours of May 1 establishes that there was no “meeting of the minds” on a successor agreement. The parties agreed to continue negotiating over the outstanding noneconomic issues, and the parties in fact did so in the early morning hours of May 1, when the mediator was no longer present. Evidence regarding the mediator that the judge refused to allow would not change our conclusion that the Respondent violated Section 8(a)(5) when it refused to continue negotiations in the absence of impasse or agreement on May 1, and its related actions after this time.11

Amended Conclusion of Law

We substitute the following for Conclusion of Law 3

“3. By refusing to continue negotiations with the Union in the absence of an impasse or an agreement, by falsely asserting that an agreement had been reached and unilaterally implementing the terms of its bargaining proposal in the absence of an impasse, by dealing directly with employees and bypassing the union, by unilaterally polling employees about working hours, by unilaterally implementing prize, incentive, and bonus programs without notice to the Union or affording the Union an opportunity to bargain, by unilaterally implementing an attendance policy and an incentive award program without notice to the Union or affording the Union an opportunity to bargain, by unilaterally implementing changes in clean-up times and disciplining two employees based on the change, by failing to provide relevant information requested by the Union, and by unilaterally changing the wages of Demand Flow employees without notice to the Union or affording the Union an opportunity to bargain, Respondent has violated Section 8(a)(5) and (1) of the Act.”

ORDER

The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, American Standard, Tiffin, Ohio, its officers, agents, successors, and assigns, shall take the action set forth in the Order as modified.

1. Substitute the following for paragraph 1(b)

“(b) Refusing to continue negotiations with the Union in the absence of an impasse or an agreement, falsely asserting that an agreement had been reached and unilaterally implementing the terms of its bargaining proposal in the absence of an impasse, dealing directly with employees and bypassing the union, unilaterally polling employees about working hours, unilaterally implementing prize, incentive, and bonus programs without notice to the Union or affording the Union an opportunity to bargain, unilaterally implementing an attendance policy and an incentive award program without notice to the Union or affording the Union an opportunity to bargain, unilaterally implementing changes in clean-up times and disciplining two employees based on the change, failing to provide relevant information requested by the Union, and unilaterally changing the wages of Demand Flow employees without notice to the Union or affording the Union and opportunity to bargain.”

2. Substitute the following for Section 2(b)

“(b) Rescind, upon the Union’s request, the changes in terms and conditions of employment made unilaterally from May 7, 2002 through August 11, 2003.”

3. Substitute the attached notice for that of the administrative law judge.

Dated, Washington, D.C. May 30, 2008

Peter C. Schaumber, Chairman

Wilma B. Liebman, Member

(seal) National Labor Relations Board

APPENDIX

Notice to Employees

Posted by Order of the

National Labor Relations Board

An Agency of the United States Government

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO

Form, join, or assist a union

Choose representatives to bargain with us on your behalf

Act together with other employees for your benefit and protection

Choose not to engage in any of these protected activities

We will not interrogate you about your union membership, affiliation, activities, or sympathies.

We will not threaten you with loss of jobs or other unspecified reprisals because of your union activities.

We will not threaten you with discharge or plant closure because of your union activities.

We will not threaten you with a lawsuit because of your union activities.

We will not request you to report on the union or protected activities of other employees.

We will not give you the impression that your union or protected activities and those of other employees are under surveillance by us.

We will not instruct you to stop engaging in the protected activity of writing letters to newspapers about your wages, hours, or working conditions.

We will not solicit your grievances and imply that we will remedy them.

We will not coercively question you about your union activities.

We will not solicit your opinions about open bargaining issues during negotiations.

We will not disparage the Union or try to bypass the Union and deal directly with you.

We will not refuse to continue negotiating with the Union in the absence of an impasse or an agreement.

We will not refuse to bargain with the Union by falsely asserting that an agreement has been reached on a collective-bargaining agreement with the Union in the following appropriate bargaining unit:

All production and maintenance employees at Respondent's Tiffin, Ohio facility, excluding all supervisors, engineers and time study men, plant production men, office employees, salaried employees, confidential employees, product development modelers.

We will not refuse to bargain with the Union by unilaterally imposing our bargaining proposal and all its terms and conditions of employment on you in the absence of an impasse in bargaining.

We will not deal directly with you and bypass the Union by polling you concerning working hours and shifts.

We will not refuse to bargain with the Union by unilaterally implementing a new attendance policy and incentive award program without notice to the Union and without affording the Union the opportunity to bargain about them.

We will not refuse to bargain with the Union by unilaterally implementing prizes, incentives, or bonus programs without notice to the Union and without affording the Union the opportunity to bargain about them.

We will not refuse to bargain with the Union by unilaterally implementing changes in clean-up times, and by disciplining employees under that change.

We will not refuse to bargain with the Union by failing and delaying providing the Union with information necessary to its carrying out of its duty to represent you.

We will not refuse to bargain with the Union by unilaterally changing the wages of Demand Flow employees without notice to the Union and without affording the Union an opportunity to bargain about it.

We will not in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act.

We will, upon request, bargain collectively with the Union in the unit set forth above.

We will send letters to employees Vincent Gaietto and Richard Mizen stating that the discipline they received concerning clean-up times has already been removed from our records and that it will not be used against them.

We will provide the Union with the information it requested in its letters dated in June 2003.

We will, upon the Union’s request, rescind the changes in terms and conditions of employment we made from May 7, 2002, through August 11, 2003.

We will make whole, with interest, all employees in the bargaining unit for any loss of earnings or other benefits they may have suffered as a result of our unlawful changes in terms and conditions of employment.

american standard companies, inc., american standard, inc. d/b/a american standard

Karen N. Neilsen, Esq., for the General Counsel.

G. Ross Bridgman and David A. Campbell, Esqs, for the Respondent.

Ross P. Andrews, Esq., for the Charging Party.

DECISION

Statement of the Case

Jane Vandeventer, Administrative Law Judge. This case was tried on approximately 22 days, beginning on July 23, 2003, and ending on September 29, 2005, in Tiffin, Ohio. The complaint alleges Respondent violated Section 8(a)(1), (3), and (5) of the Act by conduct occurring from January 2002 through August 2003. The complaint allegations are dealt with in detail below. The Respondent filed an answer and amended answers denying the essential allegations in the complaint. After the conclusion of the hearing, the Charging Party and Respondent filed briefs which I have read.[1]

i. procedural history

A. Background

The first charge in this proceeding was filed in May 2002. On July 23, 2003, the trial of the approximately six consolidated cases was opened in Tiffin, Ohio. After 3 days of negotiations, a settlement of this large case was agreed, and on July 29, 2003, I approved a tri-lateral informal settlement agreement.

B. Procedural Issues

Apparently, compliance issues arose among the parties subsequently, and ultimately motions were made to set aside the informal settlement agreement. All parties were agreed in moving to set aside the settlement agreement. On March 29, 2005, the trial herein was resumed. I granted the motion of all parties to set aside the informal settlement agreement. Later in the proceedings, I granted the motion to consolidate Case 8–CA–34809 with the six cases already before me, as it involved the same parties as well as allegations relating in time and subject matter to the six consolidated cases.

C. Remedial Issues

In the complaint, the General Counsel has requested extraordinary remedies such as reimbursement by Respondent of the Charging Party’s and the General Counsel’s costs of litigation, including accounting services, the reading of the notice to employees by a high ranking corporate official, and the mailing of the notice to former employees.

Respondent, for its part, has moved that if violations of Section 8(a)(1) of the Act are found, as alleged in the complaint, its posting of a notice to employees on those violations be waived, since Respondent did post a notice during the fall of 2003 pursuant to the informal settlement agreement.

Based on the testimony of the witnesses, including particularly my observation of their demeanor while testifying, the documentary evidence, and the entire record, I make the following

Findings of Fact

i. jurisdiction

Respondent is a Delaware corporation with an office and place of business in Tiffin, Ohio, where it is engaged in the manufacture of vitreous china plumbing fixtures. During a representative 1-year period, Respondent sold and shipped from its Tiffin, Ohio, facility goods valued in excess of $50,000 directly to points outside the State of Ohio. Accordingly, I find, as Respondent admits, that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.

The Charging Party (the Union) is a labor organization within the meaning of Section 2(5) of the Act.

ii. unfair labor practices

A. Background

The Union has represented the employees of Respondent for over 60 years, since approximately 1945.[2] There is no record of any Board findings of unfair labor practices by the Respondent at the Tiffin plant before this case. As of 2002, in nearly 60 years, there had been very few strikes, and only one of any appreciable duration.

During the period involved herein, Respondent manufactured at its Tiffin plant large ceramic sinks, toilet bowls, toilet tanks, industrial and hospital sinks, and similar products. The plant is essentially a pottery, with various departments responsible for pouring clay or “slip” into molds to create products called “greenware,” firing the greenware in huge kilns, glazing the fired pieces, firing the pieces once again, and packing and shipping the finished products. In 2002, the Tiffin facility was the only plant of Respondent making these products in the United States.

In 2001, a new plant manager, John Carlberg, and a new human resources director, Stan Savukas, began work at the Tiffin plant. Also during 2001, the Union elected a new president, Ron Fatzinger. The collective-bargaining agreement in effect had been negotiated in 1997, and was scheduled to expire on April 30, 2002. At some places in the record, this agreement was referred to as the “red book.”

B. Unilateral Change Allegation: Safety Glasses Policy

1. Facts

In November 2001, Respondent’s safety director Duane Deboo talked with the Union’s relatively new president, Ron Fatzinger, about Respondent’s proposed new policy regarding safety glasses. Respondent would require all employees to wear safety glasses, including employees who wore prescription lenses. There is no dispute that this discussion took place. Ron Fatzinger states that Deboo did not make clear that Respondent’s plan would not cover the entire cost of prescription safety glasses in all cases, for example, if the employee chose a more expensive frame. Deboo, in his testimony, could not recall whether this particular point was covered in his conversation with Fatzinger or not.

The Union did not request additional discussions nor did it request bargaining about the safety glasses policy. The new safety glass policy went into effect in January 2002. Employees procured prescription safety glasses as instructed. In the case of a number of employees, Respondent did not pay for the entire cost of their safety glasses, and so the employees themselves paid for part of the cost of the glasses.

At trial, Respondent took the position that the new policy permitted employees to wear plain-lens safety glasses called “visitor glasses” over their ordinary prescription glasses, and therefore avoid incurring the cost of getting prescription-lens safety glasses. Evidence of this practice was ambiguous. The evidence was far from clear that employees knew of this exception to the prescription safety glass policy.

2. Discussion and analysis

There is no dispute that the subject of the change was a mandatory subject of bargaining. Likewise, there is no dispute that Respondent informed the Union of the impending policy change and gave the Union at least a summary of what the policy change would mean. The Union did not request further discussions or bargaining. Therefore, Respondent implemented the policy change lawfully. The fact that one of the aspects of the plan—the fact that employees might have to pay part of the cost of the glasses depending on the style they purchased – was not adequately understood by the Union does not relieve the Union of the obligation to request bargaining.

It is well settled that an employer which gives the employees’ representative adequate notice of a contemplated change in wages, hours, or working conditions has fulfilled its bargaining obligation. It is then up to the union to request bargaining on the subject if the union desires to make modifications in the proposal. If the union does not do so, the employer may implement the proposed change legally. TXU Electric Co., 343 NLRB 1404 (2004); Bell Atlantic Corp., 336 NLRB 1076 (2001).

C.. Meeting of the Minds

1. Initial negotiations

Negotiations for a successor contract to the 1997–2002 agreement began in early April 2002.[3] Respondent’s bargaining committee consisted of John Carlberg, Stan Savukas, Dan Pieffer, controller, and Leonard Simmons, production manager. Kathy Flewelling[4] attended the sessions in order to take notes for Respondent’s committee. At some of the negotiating sessions, especially toward the end of April, Kathy Hartvickson, Respondent’s corporate director of human resources, and Mo Heshmati, corporate vice president, were present and acted as part of the bargaining committee. A representative of Respondent’s corporate benefits department, John Collins, attended a few sessions in late April in order to assist in presenting Respondent’s benefits proposal, but he was not a part of the committee. The Union’s bargaining committee consisted of Ron Fatzinger, president, Jerry Haver, vice president, Craig Goshe, recording secretary, Vincent (Vinnie) Gaietto, statistician, Paul Elcher, guard, and Lloyd Nolan, international representative. In addition, Jamey Baker and Jeremy Hill attended the negotiations as observers. The parties agreed to begin with non-economic issues such as overtime procedures, job bidding procedures, union security, and the like. Noneconomic issues were sometimes referred to in the record as “language issues.” The parties further agreed to proceed to economic issues such as pay and medical insurance after dealing with the noneconomic issues.

Respondent’s objective in the negotiations was to change the contract dramatically, according to Respondent’s witnesses Carlberg and Savukas. Respondent proposed the complete elimination of many jointly agreed plant rules and practices which had been negotiated over the years. Among employees, there was widespread sentiment that they were working excessive overtime and had far too few days off. The Union wished to negotiate some solution to this problem as well as try to speed up dealing with grievances, which had stacked up over the preceding year.

Initially, each party presented its first bargaining proposal, confined to noneconomic issues. Over the course of the next few weeks, some issues were agreed to, were put into written form, and were initialed by each party.

By the third week of April, the bargaining had still not progressed beyond the noneconomic issues. On April 23, the Union informed the Respondent that they did not think Respondent was being serious about the negotiations, and if things did not change, there would be a strike after the expiration of the contract on April 30. The Union requested a federal mediator be called in to assist the parties. Upon finding that no federal mediator was available on an immediate basis, the next day Respondent proposed, and the Union agreed to use a private mediator whom Respondent had used during other negotiations. Beginning on about April 26, the mediator joined the bargaining and began to assist the parties. Hartvickson was present as part of Respondent’s committee from April 26, through the end of negotiations on May 1.

2. The final week

On April 27, Respondent added attorney Desmond Massey to its bargaining committee. Massey introduced himself to the union committee by saying that he was there only to deal with economic issues. During a lengthy presentation, he also outlined his background, other negotiations he had participated in, and Respondent’s need for change and flexibility, including doing away with piecework, and all or most of the past practices developed by the Union and Respondent over the course of their bargaining relationship. He testified that he had negotiated economic issues for Respondent at others of Respondent’s facilities.

On April 27, however, the parties were still discussing noneconomic issues.[5] During that day, Respondent proposed a scheme whereby the parties would review old past practice agreements and addenda, and try to streamline or eliminate them, with impasses going before an arbitrator. The Union appeared to be willing to agree to such a procedure, but its counterproposal contained significantly simpler language. In response to the Union’s counter-proposal, Massey loudly told the Union that they were “pissing in the wind,” and “picking flyshit out of pepper.” No agreement was reached on this procedure.

Later that day, the parties were reviewing the noneconomic proposals, with a view to pinpointing which items were still outstanding. During this review, Massey got angry and announced that negotiations of noneconomic issues were at an end. Massey insisted that the parties leave noneconomic issues for a time. Massey stated that Respondent’s final offer on noneconomic issues was on the table, but that if and when the parties could agree on economic issues, Respondent was willing to “revisit” noneconomic issues. The Union submitted a counter offer which listed all the noneconomic or “language” issues which were still open. Massey testified that he said there would be no more negotiation on the noneconomic issues, but no other witness recalled this statement. Several witnesses, including Respondent witnesses, did recall that Massey stated willingness to revisit the noneconomic issues once the parties had agreed on economic issues. I therefore discredit Massey’s testimony on this point.[6] I find that Respondent did show willingness to come back to noneconomic issues at the conclusion of economic issues.

For the remaining days of April, the parties discussed their widely different economic proposals. Respondent proposed elimination of piecework, and of the incentive “quarters” paid to Demand Flow employees, among other changes. Its proposal contained a comprehensive wage classification scheme for the entire plant which significantly altered the status quo. Respondent’s medical insurance proposal included a contribution from employees. The Union proposed some improvements to wages and benefits, but did not want a complete overhaul of the pay system which was in place.

3. April 30 and May 1

By April 30, the parties had not reached many agreements on economic issues. Heshmati was present at most of the joint bargaining sessions on that day. At one point, he angrily told the Union that their proposals would break Respondent. By approximately 10 o’clock in the evening, outstanding economic issues included Respondent’s proposed wage classification system, the new medical insurance plan, and the open non-economic or language issues. There were approximately 37 of these noneconomic issues. Respondent’s bargaining notes reflect the statement, “if we have a tentative agreement on outstanding issues, may be inclined to revisit non-economics.”

The parties broke into separate caucuses at about 10 o’clock, and went into separate rooms.[7] After some discussion among the union committee, and their realization that the strike deadline was at midnight, the committee members put together a counteroffer. At about 11 o’clock, the Union proposed to agree to the overall wage classification system, with the caveat that several specific jobs, such as “bench hustler” were reassigned to different classifications within the system, accept the medical insurance, provided there was a cap on the employees’ contributions in the 3rd year of the contract, a proposal to deal with outstanding grievances, a full-time paid union representative, and proposed all the language issues were to be resolved. The union committee asked the mediator to convey its offer to Respondent.[8] While the union committee waited for a response, Vinnie Gaietto worked at his computer listing the specific noneconomic language issues that remained to be resolved.

As time passed, and no response was received, Fatzinger made several calls to the union hall to advise the union members to continue their preparations for a strike and for picketing in support of the strike. The second of these calls occurred at approximately 11:45 p.m. Some minutes later, the mediator returned with a response from Respondent, but the response did not address all the job classification changes, gave no response to the proposal of a cap on the medical insurance contribution, and gave no response to the Union’s demand that the language issues be resolved. The other proposals made by the Union were apparently agreed to by Respondent. None of these agreed points were reduced to writing, nor initialled by the parties.

According to Respondent’s witnesses, they were surprised when the mediator returned with the Union’s response, as they thought they had addressed all the issues. How Respondent’s committee got confused is not clear. Respondent’s committee then made a phone call to their corporate headquarters to get final approval for the medical insurance contribution cap. By this time, midnight had passed, without either party specifically requesting an extension of time for negotiations or an extension of the contract through a time certain or the conclusion of negotiations.

In the union caucus room, Fatzinger called the union hall and advised the members there that they were on strike and to deploy the pickets to their assigned areas. At some point within about 15 minutes after midnight, the mediator returned with Respondent’s answer, which agreed to the medical insurance cap and the one job reclassification in the wage scheme, but did not agree to continue negotiation of the noneconomic language issues. None of these agreed points were reduced to writing nor initialled by the parties. All the union committee members who testified stated that Fatzinger displayed anger at the failure of the negotiations by sweeping his papers off the table. The union committee then gathered their papers and began to leave the hotel building where negotiations were being held, and to go to the parking lot.

As Fatzinger returned from the parking lot into the building to get more of his papers, Hartvickson and other members of Respondent’s committee were standing inside, as was the mediator. Hartvickson pleaded with Fatzinger to stop the strike. Massey stated that he had never heard of a union going out on strike over language issues. The mediator cursed and called the union committee stupid. Fatzinger replied that they didn’t understand how important those language issues were to the employees, that they had been working 12 hours a day, 7 days a week, and they never saw their families. Fatzinger proceeded up the stairs towards the union caucus room. Before he reached the room, Simmons stopped him and said that they would all lose their jobs if there was a strike, because the plant would be shut down. Fatzinger continued to the caucus room, where he and Nolan talked over the possibility of extending the current contract until negotiations could be concluded. They agreed to meet with the Respondent committee and went to the lobby to do so. Fatzinger and Nolan met with Massey and Hartvickson and told them the Union was willing to extend the current contract (called in testimony, “extending the clock”) in order to finish negotiating the open language items. Hartvickson nodded affirmatively, thanked them, and hugged Fatzinger. It was suggested that the remaining items might be dealt with more efficiently by a subcommittee of two committee members from each team. Fatzinger and Hartvickson agreed to this procedure. Respondent chose Carlberg and Savukas for its subcommittee, and the Union chose Vinnie Gaietto and Jerry Haver. The Union called off the strike.

At about 1 a.m. on May 1, the subcommittee began work on the remaining noneconomic language issues. The record evidence reveals that the union subcommittee was instructed to agree, modify, or withdraw its language proposals, in order to try to secure quick agreement to a few of the most important language issues in return for dropping others. Respondent’s committee was instructed by Heshmati that it didn’t have to agree to anything, but to give the Union a few things, according to Savukas’ testimony. The subcommittees met and began to go through the open noneconomic issues. They began with overtime, and were able to agree on a few parts of the overtime section, and agreed to leave others open. After approximately an hour progress on the overtime language issues slowed, and the parties moved on to the job bidding proposals. They continued to deal with language issues in the job bidding proposal for approximately another hour or so.

In the meantime, Fatzinger was called on the phone and asked to come to Respondent’s caucus room alone, once apparently to discuss what point the parties had reached in their negotiations. Fatzinger testified that he felt uncomfortable being without his committee, and left the caucus room. The second time he went to Respondent’s caucus room in response to Respondent’s summons, he was presented with a piece of paper which, as well as Fatzinger could recall, stated that the parties had reached agreement on economic issues, and that a contract was set to go into effect within 24 hours of the signing of the proferred document. Fatzinger was asked to sign this paper. Fatzinger testified that he did not understand the statement presented to him, and was leery of being tricked into stating that there was an agreement, when in his mind, an agreement was still in the process of being negotiated by the subcommittee. Fatzinger declined to sign the document, and left the caucus room.

The subcommittee was able to arrive at agreement on certain parts of the job bidding proposal, but when the parties disagreed about a particular item, Savukas suggested a break. It was then about 3 or 3:30 a.m. A few minutes later, Fatzinger suggested to the four subcommittee negotiators that they get some sleep and resume negotiations in the morning. Fatzinger suggested 1 p.m., but Carlberg countered with a morning meeting, and it was agreed that the four subcommittee negotiators would resume their work at 10 a.m. the same day.

At about 9 a.m., Heshmati visited Respondent’s plant, and met with the office staff, who had arrived ready to go to work in the plant in the event of a strike. He told the employees that Carlberg and Savukas were not there because they had been up late the night before negotiating. Heshmati said that negotiations were going to continue that day, as no settlement had been reached. Witness Elizabeth Cleveland testified without contradiction that Heshmati said nothing about a contract having been reached.[9]

At the hotel where negotiations took place, the union committee arrived by 10 a.m., but had to wait for some time before any Respondent committee members appeared. About 30 minutes later, however, Massey and Hartvickson entered the main negotiating room. Massey stated that there had been some kind of misunderstanding the evening before, and that Respondent had agreed only to “review” the open noneconomic issues, not to “negotiate” them. Nolan became angry, and stated that he knew the difference between negotiate and review. The union committee said they were ready to resume negotiations. Massey stated that agreement on a contract had been reached. Nolan and Fatzinger both stated that no contract had been reached. Massey reasserted that one had been reached. The union committee withdrew to a caucus. After discussing the surprising claim that a contract had been agreed to, the union committee was at a loss for a response, but decided to put forth some alternative proposals to Respondent. The union committee returned to the two-person Respondent committee and proposed as one alternative that the parties simply renew the 1997–2002 collective-bargaining agreement for another 3 years. If Respondent did not want to accept that option, the Union stated that it would take Respondent’s last proposal to the membership to see if the employees would accept it. In response to Massey’s question whether the union committee would recommend its acceptance, Fatzinger responded that they would not recommend and would not oppose it. Hartvickson asked what would happen if the employees rejected the Respondent’s last proposal, and Nolan said that the Union would give Respondent an “orderly shutdown,” toward a strike. After taking a caucus in their turn, Respondent’s committee returned. Massey stated that Respondent still took the position that there was a contract. Nolan said there was no contract, and referred to the four-person subcommittee which had been negotiating the remaining language issues. Massey argued back, raising his voice, and stated that Respondent was a “corporate gorilla,” and that the Union was a “pissant.” Massey told the union committee that if the Union went on strike, Respondent would sue “each and every one of you” as well as the International Union for a million dollars a day.

Ultimately, Respondent agreed to the Union’s second proposal to submit Respondent’s last proposal to the employees for a vote. The vote was scheduled for the following day. Respondent campaigned in favor of its last proposal. Respondent released news to a local radio station about the middle of the day on May 1, stating that an agreement had been reached between Respondent and the Union.

Beginning on May 2, Respondent announced to employees that there was a contract, and urged them to vote in favor of it. The employees voted against Respondent’s last proposal by a large margin. Despite this rejection by the employees, and despite subsequent requests by the Union to return to negotiations, Respondent implemented its last proposal on May 7.

There is no evidence that Respondent claimed during the April 30 to May 7 period that there was an impasse in negotiations.

4. Discussion and analysis

The first question which must be addressed is whether there was indeed an agreement on a collective-bargaining agreement at any time on the night of April 30, through the morning of May 1. I found above that the Union’s last proposal which was sent to Respondent included as one of its points that the noneconomic or language issues be resolved. There is no evidence that Respondent gave the Union back any response to this particular point in its two responses, one shortly before midnight, and the other approximately a quarter of an hour after midnight. Therefore, the issue of the unresolved language proposals had clearly not been settled. Whether Respondent’s committee realized or did not realize that there was one significant issue which was not settled at 12:15 a.m. on May 1, is not significant. Within a short time thereafter, the Union’s actions in calling a strike and leaving the hotel, as well as Fatzinger’s statements to Respondent’s committee, informed Respondent’s committee clearly that there was an issue still outstanding, and that issue was the language proposals.

Respondent’s conduct after hearing that a strike had been called, and hearing Fatzinger’s remarks showed that it understood by 12:30 or 1 a.m. that there was more bargaining to do if a strike were to be averted. Respondent agreed to sit down again to try to resolve the remaining language issues. Both sides tried to speed the process by paring down the negotiating team for the language issues. When several hours of continued bargaining did not resolve all the language issues, the parties agreed to continue negotiations at 10 a.m., some 7 hours later. It is eminently clear that negotiations were still going on; they were certainly not concluded, not considering that another session had been agreed upon. No written and initialled agreements embodying the four or five points which had been agreed between the parties at midnight or shortly thereafter had been drawn up, as had been the parties’ practice heretofore. This is strong evidence of the absence of an agreement, of a meeting of the minds, in the early hours of May 1, when the parties took a break to get some sleep. Crittenton Hospital, 343 NLRB No. 81, slip op. at 2 (2004). Cf. Branch Cheese, 307 NLRB 239 (1992).

Some hours later, at some time after ten a.m., it was Respondent that refused to continue with the examination of the remaining language issues, and the attempt to resolve them. Up until this time, both parties had behaved as if negotiations were going to continue. Heshmati had announced as much in the plant at around 9 a.m. Respondent’s about-face in announcing at about 10:30 or 11 a.m. that a contract already existed and had been agreed to must indeed have been surprising to the union committee. It would be as surprising to any reader of the record evidence herein. There is no evidence in this record that the parties agreed to all the terms of a collective-bargaining agreement. It is clear Board law that an agreement must be complete in order to show that there has been a “meeting of the minds” necessary to the formation of a contract. Mutual agreement on “all material terms” is an essential element of a binding contract. The fact that the Union had been willing to strike over the failure of agreement on the noneconomic language issues—and the fact that they involved mandatory subjects of bargaining such as overtime and job bidding procedures—clearly establish that the unresolved issues were indeed substantial and material issues. Sheridan Manor Nursing Home, 329 NLRB 476, 478 (1999); Henry Bierce Co., 307 NLRB 633, 628–629 (1992).

Respondent contended at trial that its negotiators agreed to “discuss” the unresolved noneconomic issues, but that its negotiators did not mean bargain or negotiate about them. There is no credible evidence in this record that Respondent made clear to the Union at that time that it was using the word “discuss” in such a specialized sense, rather than its ordinary meaning. The Union therefore was entitled to apprehend Respondent’s intention to discuss or talk about the unresolved issues as an agreement to continue bargaining about them. In addition, Respondent’s conduct at the time indicated that it was bargaining or negotiating about the unresolved issues. It designated a bargaining subcommittee consisting of the two local managers, Carlberg and Savukas, to sit down with a two-member union subcommittee at a table. Heshmati instructed Respondent’s negotiators to “give” on some issues. This conduct looks exactly like bargaining, and I find that it was bargaining. I reject Respondent’s late-raised contentions that is did not agree to continue bargaining, that it used the word “discuss” only, and that “discuss” meant something other than its ordinary meaning.

Respondent’s other late-raised defense, that an impasse had been reached by the early hours of May 1, is without merit. The parties had agreed to continue negotiating at 10 a.m. on May 1. The subcommittee had not even finished going through all the noneconomic issues, much less come to final positions on them. Each side “reserved” on some items. This is ordinarily understood to mean that the parties mean to come back to those items, not that they are at their final positions. In addition, no person on Respondent’s negotiating committee used the word “impasse” on the morning of May 1. Instead, Massey and the other members insisted that there was a “contract,” not an impasse. The record evidence can simply not be contorted into a shape that would support Respondent’s argument that an impasse existed on May 1. The Union showed that it was ready to continue coming up with offers and alternative proposals even in the face of Respondent’s impudent claim that a contract had been reached the preceding night, as shown by the Union’s offers to continue the previous contract in effect, or to submit the Respondent’s last proposal to the employees for a vote. These facts, taken together, preclude a finding of impasse. Grinnell Fire Protection Systems Co., 328 NLRB 585, 586 (1999), enfd. 236 F.3d 187 (4th Cir. 2000), cert. denied, 534 U.S. 818 (2001).

It is immaterial whether Respondent acted out of honest error, and believed that there had been agreement around midnight, or whether it knew full well that there had been no agreement, and had simply decided to attempt to foist its last proposal on the Union under the guise of a purported agreement. The lack of a meeting of the minds, the lack of a contract, would be the same, and Respondent’s violation of its duty to bargain would be the same. However, if Respondent had been acting in good faith, Respondent should have returned to the bargaining table once its last proposal had been rejected.

Respondent’s abandonment of negotiations when no agreement had been reached and no impasse had been reached is a violation of its duty to bargain in good faith, and violated Section 8(a)(5) of the Act. Likewise, its implementation of its last proposal in the absence of agreement or impasse also violated Section 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736 (1962); Grinnell Fire Protection Systems Co., supra at 586; American Automatic Sprinkler Systems, Inc., 323 NLRB 920, 937–938 (1997).

D. Allegations of Section 8(a)(1) Conduct

1. Before May 1

Employee James Uhrik testified that in mid-April, agent John Kesler,[10] a modeler (designer) for Respondent, approached him and asked him what employees in his department wanted in a contract. Uhrik said they wanted better wages and a good contract. Kesler replied that they would get more money. Within a day or two, Kesler again approached Uhrick and told him that he, Kesler, had been talking with the employees in the “bowl beam” area, and had asked them if they would go on strike, and they had said that they would. Kesler did not testify at the hearing.

About April 24, according to the testimony of Ron Fatzinger, Carlberg called him into his office and asked Fatzinger why he was talking with employees in the plant. Fatzinger replied that he was making sure the stewards communicated to employees that they were to work as usual, and not to have any slow-downs. The two talked about the possibility of a strike the following week, and Fatzinger promised that the employees would conduct an “orderly shut-down” of the plant. Carlberg told Fatzinger that he didn’t “need” the current employees and that if they did go on strike, that Respondent would “shut the plant down.” Carlberg did not address this conversation in his testimony.

Witness Elizabeth Cleveland, a former accounting clerk in Respondent’s office, testified that she was called into several meetings during the period April 24 to 30, by John Carlberg, along with other office employees. It is undisputed that Cleveland and several other office employees were not supervisors of Respondent. At the first of these meetings, the attendees were instructed that they would be expected to work in the plant in the event of a strike. At the second of these meetings, on April 26, about 60 supervisory, salaried, and office employees were present. Carlberg made a presentation about how well the Tiffin plant was doing, and told them to go out and tell the bargaining unit employees how well the plant was going to do in the future. Carlberg further told the supervisory, salaried, and office employees that if they heard anything about negotiations or about the union from the employees, they were to be sure to report such comments back to him. At the third meeting a few days later, some such comments were reported to Carlberg. Carlberg did not address these allegations in his testimony.

I find that each of these three undisputed incidents constitutes coercive conduct in violation of Section 8(a)(1) of the Act. The first remarks by Kesler convey to the employee an impression that employees’ union activity, e.g., intentions regarding participating in a strike, were under surveillance by Respondent. See, e.g. Spartech Corp., 344 NLRB 576 (2005); Jewish Home for the Elderly of Fairfield Co., 343 NLRB 1069 (2004); Wal-Mart Stores, 340 NLRB 220 (2003); Flexsteel Industries, 311 NLRB 257 (1993). The second incident is a threat to close the plant if the employees choose to strike, which is per so coercive. See, e.g., Contempora Fabrics, Inc., 344 NLRB 851, 858 (2005); Jewish Home for the Elderly of Fairfield Co., above. The third incident constitutes a request to employees to survey the union activities of other employees, and to report such activities back to Respondent. Wal-Mart Stores, above.

2. May 1 and 2

On the morning of May 1, at about 9 a.m., employee Cleveland was called to a meeting in the plant’s office area where Mo Heshmati addressed her, along with other employees and supervisors. She testified that Heshmati asked the employees and supervisors, “what are the employees saying out on the floor” about the situation involving the union, the strike, and the negotiations. Heshmati did not testify at the hearing,[11] nor did any other witness testify about this incident and thus Cleveland’s testimony is unrebutted.

It is clear that Heshmati’s question regarding the union activities and sentiments of employees was coercive with respect to Cleveland and the other nonsupervisory office staff present at the meeting. The meeting was in Respondent’s plant offices, and the question was asked by a high corporate official. It gave employees the impression that employees’ union activities and sentiments were under surveillance by Respondent and requested them to report on the union and protected activities of other employees. Accordingly, I find that Heshmati’s statement on May 1, violated Section 8(a)(1) of the Act. See, e.g., Spartech Corp., above; Wal-Mart Stores, above; Flexsteel Industries, above.

Massey’s threat to sue individual union officers and committee members for millions if they chose to go on strike was described above. Such a threat to sue employees for exercising their Section 7 right to strike is an egregious example of coercive conduct. It is a violation of Section 8(a)(1) of the Act. Cf. Braun Electric Co., 324 NLRB 1, 4 (1997).

The Union’s vote on Respondent’s final offer was scheduled to be held on May 2. It is undisputed that on May 1 and 2, supervisors throughout the plant spoke to their employees and encouraged them to vote in the Union’s ratification vote. Tom Bushkuhl, an employee for more than 30 years, testified that admitted supervisor Isadore “Mac” MacLaughlin spoke to him on May 2, about Respondent’s economic package, and stated that the raises looked good. Bushkuhl testified that Mac said that whatever he did, “don’t let the union tell you how to vote” in the upcoming ratification vote. Mac Laughlin testified, but did not recall the specifics of any of his conversations with employees.

Employee Carol Perin testified that on the same date, she attended a meeting of employees at which admitted supervisor Tim Harold told employees that the contract offered by Respondent was good, and recommended to employees that they vote for Respondent’s proposal, which he called a “contract.” Perin testified that Harold told the employees that if they did go out on strike, Respondent could “close the doors.”

Also on May 2, Jim Hall spoke to employee Tom Plott in the maintenance department. According to the testimony of Plott, Hall asked Plott what he thought of the new “contract.” Plott replied that it “sucks” because the money in it is “dirty money” taken from Plott’s fellow employees who had been paid piecework. Plott added that the overtime never stops. Hall asked him if he was going to vote on the “contract” that evening. Plott replied that he was, and was going to vote it down. Hall said that he hoped the vote was positive, because if it was not, there was the possibility that “we won’t be here after the end of the year, that they will close the doors.” Plott also witnessed Hall and engineer Dave Keisel asking employee Delbert Schank if he was going to vote that evening. According to the testimony of Delbert Schank, he replied that he was going to vote against the Respondent’s “contract.” Hall then asked Delbert Schank three separate times why he wanted to quit. Each time, Delbert Schank replied that he was not quitting and did not intend to quit.[12]

On the same day in Tim Herold’s office, Supervisors Tim Herold and Terry Hunter held a meeting of employees in which they talked about the “good points” of Respondent’s last offer. Employee Jodi Fisher attended the meeting. According to Fisher’s testimony, Herold asked employees how they intended to vote on the Respondent’s contract offer. After some discussion about the merits of the offer, Terry Hunter said that if it was voted down, we would no longer have a plant, we would all be losing our jobs. At another meeting the same day, Tim Herold talked to a different group of employees in engineer John McNamara’s office. Employee Donnie Jacobs attended. He testified that, after describing Respondent’s offer, Herold encouraged the employees to vote in favor of it. Herold went on to say that if there was a strike, only half the employees would return to work. When an employee asked if the plant would close if there was a strike, Herold replied, yes, but don’t take that as a threat. Neither Tim Herold nor Terry Hunter testified.

Also on May 2, Supervisor Jerry Reedy asked employee Bruce Arbogast whether he had voted on Respondent’s offer, according to Arbogast’s testimony. Reedy refused to answer. A little later, Arbogast was with about fourteen employees from his department, the Bowl Beam department, when supervisors Ken Hammer and Jerry Reedy came to talk to them about Respondent’s offer. Hammer said that if the offer was not ratified by the employees, the Tiffin plant would not be here, because Respondent would make the products in Mexico. Hammer asked the employees which ones had not voted, and to raise their hands if they had not voted. He told them he would give them time off to go and vote. Neither Hammer nor Reedy testified.

Employee Eugene Wise testified that on May 2, he received a message on his telephone answering machine from supervisor Dale Schwochow. According to Wise, he returned the call, and Schwochow told him that they had worked together a long time, and he would hate to see them lose their jobs, as they had families to support. He added that Wise should “keep an open mind” when he went to vote. Dale Schwochow testified but had no recollection of specific calls.

The approximately nine conversations detailed above