PARAGON PAINT CORP.

  DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

      317 NLRB No. 101
 
 Paragon Paint & Varnish Corporation and Local 8-406, Oil, Chemical and
 Atomic Workers International Union, AFL-CIO. Cases 29-CA-17710, 29-CA-
      17801, 29-CA-17835, 29-CA-17889, 29-CA-17926, and 29-CA-17966

        MAY 31, 1995

     DECISION AND ORDER

     BY MEMBERS BROWNING, COHEN, AND TRUESDALE

    On November 9, 1994, Administrative Law Judge Joel B. Biblowitz
issued the attached decision. The Respondent filed exceptions, a motion
to reopen the record, and a supporting brief. The General Counsel filed
a brief in support of the decision of the administrative law judge and a
letter in opposition to the Respondent's motion to reopen the record.
    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 briefs and has decided to affirm the judge's rulings,
findings, and conclusions and to adopt the recommended Order as modified
and set forth in full below.\1\
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    \1\We note that the judge made inadvertent errors in the Order and
notice. We will correct them. We also will add a broad remedial order.
The violations at issue are egregious. They include frequent
discrimination against employees selected as union representatives and
the unlawful layoff and subsequent unlawful lockout of, ultimately, the
entire bargaining unit. Moreover, the violations continued unabated
during an approximate 10-month period and the Respondent's owner and
president, Selma Rattner, acted as a principal in their commission. We
find that a broad remedial order is required in light of the
Respondent's unrelenting opposition to the employees' exercise of their
fundamental statutory rights. Hickmott Foods, 242 NLRB 1357 (1979).
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    The Respondent has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an
administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are
incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and find
no basis for reversing the findings.
    In adopting the judge's discrediting of the testimony of the
Respondent's owner and president, Selma Rattner, we rely on the judge's
assessment of her demeanor both as a witness for the Respondent and as a
hostile witness for the General Counsel pursuant to Section 611(c) of
the Federal Rules of Civil Procedure. We, however, do not rely on
Rattner's seating herself within range of testifying witnesses, or any
appearance Rattner may have given of ``staring down'' these witnesses.
It is axiomatic that deference is due credibility determinations based
at least partially on the judge's assessment of the demeanor of the
witness. See NLRB v. Original Oyster House, 822 F.2d 412, 414 (3d Cir.
1987). The judge satisfied this axiom in his assessment of Rattner's
veracity. Indeed, he contrasted Rattner's muted style and professed
ignorance of procedures and activities at the plant when Rattner
testified for the General Counsel with Rattner's seeming verbosity and
freely offered explanations about incidents when Rattner testified for
the Respondent. We therefore deny the Respondent's motion to reopen the
record to reassess the judge's discrediting of Rattner based on
Rattner's seating arrangements and appearance when she was not
testifying. These factors are irrelevant to the judge's valid assessment
of Rattner's credibility based on her demeanor.
    The Respondent also claims that the judge was biased against
Rattner. We have carefully examined the entire record, including the
judge's decision, and we are convinced that the judge's conduct does not
constitute even the appearance of partisanship. There is no basis for
finding that bias or partiality existed merely because the judge
resolved important factual conflicts arising in the proceeding in favor
of the General Counsel's witnesses.
    In addition, we find no merit to the Respondent's exception to the
judge's crediting the testimony of employee and Assistant Shop Steward
William Cerezo over Rattner's testimony concerning incidents that
occurred on February 1, 1994. The Respondent argues that the judge
should have granted the Respondent's motion to strike the testimony of
Cerezo on the basis of the General Counsel's failure to give the
Respondent all of Cerezo's affidavits prior to the Respondent's cross-
examination of Cerezo. The record reveals that the affidavit at issue
related to a charge that was withdrawn, not to the charges at issue in
this case about which Cerezo was testifying. Nevertheless, the General
Counsel gave the affidavit to the Respondent, the judge allowed the
Respondent further time to cross-examine Cerezo, and the Respondent did
so. In these circumstances, the judge correctly denied the Respondent's
motion to strike Cerezo's testimony.
    In the absence of exceptions, we adopt pro forma the judge's
findings that the Respondent violated Section 8(a)(1) of the Act by
interrogating employee Juan Gonzales on February 1, 1994, and Section
8(a)(5) and (1) of the Act by failing to provide the Union with
information about the Respondent's medical insurance program and the
names of current employees, their job titles, and hourly pay pursuant to
the Union's oral and written requests on November 29 and December 1 and
15, 1993.
    Also in the absence of exceptions, we adopt pro forma the judge's
dismissal of certain complaint allegations: (1) The 8(a)(5) and (1)
allegations involving the Respondent's failure to remit to the Union
dues and initiation fees deducted from employees' wages since June 1,
1993, the Respondent's refusal to permit shop stewards to attend
grievance meetings on worktime on June 16 and September 22, 1993, and
the Respondent's refusal to give the Union its books and financial
records pursuant to union requests at the December 1 and 15, 1993
negotiating sessions; (2) the 8(a)(3) and (1) allegations involving the
Respondent's warnings, 3-day suspensions, and transfer to the paint
filling department given to Assistant Shop Steward Hector Aponte on June
23, July 21, and October 25, 1993; (3) the 8(a)(1) allegations involving
the Respondent's closer supervision and following of Shop Steward
Michael Meyers and forcing him to put his clothes in a locked room on
February 1, 1994, and involving the Respondent's pulling on Assistant
Shop Steward William Cerezo's jacket on February 1, 1994; and (4) the
8(a)(5), (3), and (1) allegations involving the Respondent's December
27, 1993 discharge of Yugo A. Carmona, Pedro Mercado, Miguel Alvarado,
Jose Vendrell, Javier Restrepo, and Juan Serrano.
    Finally, we note that the judge found that the merger election
satisfied the Board's traditional due process criteria. Accordingly, we
need not pass on what action the Board would take had the election not
satisfied those standards. Toyota of Berkeley, 306 NLRB 893, 899 fn. 6
(1992).

ORDER

    The National Labor Relations Board orders that the Respondent,
Paragon Paint & Varnish Corporation, Long Island City, New York, its
officers, agents, successors, and assigns, shall
    1. Cease and desist from
    (a) Interrogating its employees about their support for the Union.
    (b) Imposing more onerous and less desirable working conditions on
its employees because of their union activity and because they engaged
in a concerted protest and strike commencing on December 22, 1993, and
other protected concerted actions.
    (c) Issuing warnings to its employees because of their union
activities.
    (d) Imposing more onerous and less desirable working conditions on
its employees because of their union activities.
    (e) Discharging its employees Arias, Sossinski, and, subsequently,
all but six of its employees because of union or other protected
concerted activity.
    (f) Suspending its employees because of union or other protected
concerted activity.
    (g) Forcing employees to work overtime because of union or other
protected concerted activity.
    (h) Requiring its employees to use the bathroom to change into and
out of their work clothes because of their union or other protected
concerted activity.
    (i) Refusing to reinstate its employees after they made an
unconditional offer to return to work on January 12, 1994.
    (j) Locking out its employees on about February 1, 1994.
    (k) Failing to give its attorney the required authority with which
to bargain with the Union about grievances.
    (l) Reducing the frequency with which it paid its employees without
prior negotiations with the Union.
    (m) Unilaterally refusing to grant the Union access to the facility.
    (n) Failing to provide the Union with information that it requested
regarding the medical insurance that it provided and the employees that
it employed.
    (o) In any other manner interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed them by Section 7 of
the Act.
    2. Take the following affirmative action to effectuate the policies
of the Act.
    (a) Offer Arias and Sossinski immediate and full reinstatement to
their former positions or, if those positions no longer exist, to
substantially equivalent positions without prejudice to their seniority
or other rights and privileges previously enjoyed and make them whole
for any loss of earnings and other benefits suffered as a result of the
discrimination against them in the manner set forth in the remedy
section of the judge's decision.
    (b) Make whole the other employees (those who were laid off on
December 22 as well as those who concertedly refused to work beginning
on December 27 and were included in the unconditional offer to return to
work dated January 12, 1994) for the loss of earnings and other benefits
suffered as a result of the discrimination against them in the manner
set forth in the remedy section of the judge's decision.
    (c) Remove from its files any reference to the unlawful layoffs and
terminations and notify the employees in writing that this has been done
and that the unlawful layoffs and terminations will not be used against
them in any way.
    (d) 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 analyze the amount of backpay due under the terms
of this Order.
    (e) On request, promptly provide the Union with the information that
it requested regarding the medical insurance that it provided to the
employees and the costs thereof and the names, job titles, and salaries
of all of the Respondent's nonsupervisory employees.
    (f) On request, promptly provide the Union with access to its
facility.
    (g) Post at its facility in Long Island City, New York, copies of
the attached notice marked ``Appendix.''\2\ Copies of the notice, on
forms provided by the Regional Director for Region 29, after being
signed by 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.
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    \2\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.''
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    (h) Notify the Regional Director in writing within 20 days from the
date of this Order what steps the Respondent has taken to comply.
    It is further ordered that the consolidated complaint is dismissed
insofar as it alleges violations of the Act not specifically found.


          APPENDIX

     Notice To Employees
   Posted by Order of the
          National Labor Relations Board
     An Agency of the United States Government

The National Labor Relations Board has found that we violated the
National Labor Relations Act and has ordered us to post and abide by
this notice.

Section 7 of the Act gives employees these rights.

To organize
To form, join, or assist any union
To bargain collectively through 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 interrogate our employees about their support for Local
8-406, Oil, Chemical and Atomic Workers International Union, AFL-CIO or
any other labor organization.
    We will not impose more onerous or less desirable working conditions
on our employees in retaliation for their protected concerted
activities.
    We will not issue warnings to our employees, suspend or discharge
our employees, force our employees to work overtime, lock out our
employees, or require our employees to use the bathroom to change into
and out from their work clothes in retaliation for their union
activities.
    We will not refuse to reinstate employees who made an unconditional
offer to return to work.
    We will not, without prior negotiation with the Union, reduce the
frequency with which we pay our employees, affect the Union's access to
our facility, or require our employees to use the bathroom to change
into, and out from, their work clothes.
    We will not refuse to give the Union requested information that is
necessary and relevant to it as the collective-bargaining representative
of our employees.
    We will not fail to give our attorney adequate authority with which
to deal with the Union.
    We will not in any other manner interfere with, restrain, or coerce
you in the exercise of the rights guaranteed you by Section 7 of the
Act.
    We will, on request, provide the Union with the cost and type of
medical insurance coverage that we provide for our employees, and with
the names, job titles, and salaries of all of our nonsupervisory
employees.
    We will, on request, allow the Union to visit our facility.
    We will make whole Antonio Arias and Ted Sossinski, with interest,
for any loss of earnings and other benefits they suffered as a result of
our discrimination against them and we will offer them immediate and
full reinstatement to their former jobs or, if those jobs are no longer
exist, to substantially equivalent positions without prejudice to their
seniority or other rights and privileges previously enjoyed and we will
make them whole for any loss of earnings and other benefits resulting
from their discharge, less any net interim earnings, plus interest.
    We will make whole the employees that we laid off at the end of the
day on December 22, 1993, as well as the employees that we refused to
reinstate pursuant to their unconditional offer to return to work dated
January 12, 1994, with interest, for any loss of earnings and other
benefits resulting from their layoff, less any net interim earnings,
plus interest.
    We will remove from our files any reference to the above-mentioned
discharges, layoffs, and refusals to reinstate, and we will notify each
of these employees in writing that this has been done and that we will
not use the discharges, layoffs, and refusals to reinstate, against them
in any way.

        Paragon Paint & Varnish Corporation
April M. Wexler, Esq. and Ann S. Goldwater, Esq., for the General
         Counsel.
Martin Gringer, Esq. (Franklin & Gringer), for the Respondent.


          DECISION

    Statement of the Case

    Joel P. Biblowitz, Administrative Law Judge. This case\1\ was heard
by me on June 6 and 7 and July 11 and 13, 1994, in Brooklyn, New York.
The amended consolidated complaint here, which issued on March 31,
1994,\2\ was based on unfair labor practice charges and amended charges
that were filed by Local 8-712, Oil, Chemical and Atomic Workers
International Union, AFL-CIO (the Union) on October 7, 1993,\3\ November
5, 17, and 24, December 13, January 5 and 26, 1994, February 2, 1994,
and April 4, 1994. The amended consolidated complaint alleges numerous
violations of Section 8(a)(1), (3), and (5) of the Act by Paragon Paint
& Varnish Corporation (Respondent). It is alleged that Respondent, by
Selma Rattner, its president and agent, on about October 5, threatened
to harass and discharge its employees because of their union activities,
and on about February 1, 1994, interrogated its employees about their
union activities, in violation of Section 8(a)(1) of the Act. It is also
alleged that Respondent discharged Antonio Arias from on about July 7
until about July 16, issued written warnings to Michael Meyers and
William Cerezo on about June 16, imposed less desirable and more onerous
working conditions on Meyers, in about June or July, by assigning him to
clean the fourth floor bathroom at the Long Island City facility (the
facility), suspended Hector Aponte for 3 days without pay, and issued a
warning notice to him, in June or July, transferred Aponte, in about
July, from his position in Respondent's batch making department to its
paint filling department, and discharged Arias from about August 27 to
about July 18, 1994, because of their support for, or activities on
behalf of, the Union in violation of Section 8(a)(3) of the Act. It is
further alleged that Respondent violated Section 8(a)(3) of the Act by
issuing a written warning to Aponte on about October 5, assigning Meyers
to work overtime in October, suspending Aponte for 3 days without pay on
about October 25, imposing less desirable and more onerous working
conditions on Aponte and Meyers by assigning them to clean the second
and first floor bathrooms at the facility on about October 25, and
discharged Ted Sossinski in October or November. It is also alleged that
Respondent violated Section 8(a)(5) of the Act by failing and refusing
to bargain in good faith with the Union which, for many years, had been
the collective-bargaining representative of most of its employees, in
that on about June 16 and September 22 it designated its attorney to
represent it at grievance meetings with the Union, but failed to
authorize the attorney to bargain with the Union, settle grievances, or
otherwise act on its behalf; on those same dates, prohibited Meyers and
Cerezo, the shop steward and assistant shop steward, from attending
grievance meetings which they had previously been allowed to do; since
about June, Respondent has failed and refused to remit to the Union all
union dues and initiation fees that it has deducted from the wages of
its employees pursuant to valid checkoff authorizations; on about
October 26, November 17, and December 1, Respondent refused to allow
union representatives access to its facility, notwithstanding that its
collective-bargaining agreement with the Union provides for such access;
and on about October 15, it reduced the frequency with which it paid its
employees from once every week to once every 2 weeks; this is also
alleged to violate Section 8(a)(3) of the Act. It is also alleged that
Respondent violated Section 8(a)(5) of the Act, since on about December
1, by failing to provide the Union with certain information that it
requested.
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    \1\As will be discussed below under ``Analysis,'' the General
Counsel's motion to substitute Local 8-406 for Local 8-712 is granted.
    \2\A further complaint in Case 29-CA-18275, which issued on June 3,
1994, and which was consolidated with the instant matter on that same
day, was settled by the parties during the hearing here and was
withdrawn and severed at that time.
    \3\Unless indicated otherwise, all dates referred to herein relate
to the year 1993.
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    It is further alleged that on about December 22, Respondent's
employees concertedly protested to Respondent its failure to pay them
certain wages due and, following this protest, Respondent discharged 11
named employees and refused to reinstate them until about March 8, 1994,
and that from about December 27 through about February 1, 1994, certain
of Respondent's employees ceased work concertedly and engaged in a
strike, and that this was an unfair labor practice strike caused by some
of Respondent's actions described above. It is alleged that Respondent
fired six named employees on December 27 and failed to reinstate them
until March 8, and that on January 11 and 12, 1994, the Union made an
unconditional offer to return for the employees who ceased work
concertedly on December 27, and those who were terminated on that same
day, but that Respondent refused to reinstate them until about March 8,
1994. Finally, it is alleged that on about February 1, 1994, the
employees on whose behalf the Union offered to return unconditionally
(as described above) did return to work; however, it is alleged that on
that date Respondent violated Section 8(a)(1), (3), and (5) of the Act
by: imposing more onerous and less desirable working conditions on
Cerezo by assigning him to be in charge of employees' work clothes and
where they change their clothes, and on Cerezo and Meyers, by repeatedly
requiring them to move heavy paint cans manually, without a handtruck or
other equipment, for no apparent business reason; subjected Meyers to
closer than normal supervision and followed him and required him to put
his clothes in a locked room; directed certain of its employees to leave
its facility in the middle of the workday and locked them out; and
pulled Cerezo by his jacket.

      Findings of Fact

       i. jurisdiction

    Respondent, a New York corporation with its principal office and
place of business in Long Island City, New York (the facility), has been
engaged in the nonretail manufacture, distribution, and sale of paints
and related products. During the year preceding the issuance of the
complaint, Respondent purchased and received at its facility products,
goods, and materials valued in excess of $50,000 directly from points
outside the State of New York. Respondent admits, and I find, that it
has been an employer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

           ii. labor organization status

    Respondent admits, and I find, that the Union has been a labor
organization within the meaning of Section 2(5) of the Act.

                  iii. the facts

    At the commencement of the hearing, the General Counsel moved to
amend the consolidated amended complaint by substituting Local 8-406,
Oil, Chemical and Atomic Workers International Union, AFL-CIO (Local
406) for the Union because the Union was ``amalgamated into'' Local 406.
Counsel for Respondent objected to this amendment. I reserved judgment
on this motion.
    It is the General Counsel's position that the Union merged with
Local 406, effective April 1, 1994, pursuant to an election conducted on
March 8, 1994. This contention is supported by the testimony of Sarah
Adams, who was the secretary treasurer for the Union, and Charles
Horvath, a representative of Local 406. Adams testified that in about
January 1994, the Union represented about 110 employees. Notification of
the merger election to be conducted on March 8, 1994, was given to the
shop stewards and to those present at prior meetings. In addition, the
notice was faxed to companies under contract with the Union, but not to
Respondent. This notice, with the Union's letterhead, but undated,
states:

    O.C.A.W.--Local 8-712

    Union Meeting Notice

           Date--Tuesday, March 8, 1994
           Time--5:30 P.M.
           Place--160 Montague Street
      Brooklyn, NY

           Agenda--1. Regular Monthly
       Business
        2. Amalgamation
       (merger) vote into another
          OCAW Local will be
       taken.

Adams testified that there was a regular union membership meeting in February 1994, specifically for Respondent's employees, at a diner near the facility; prior notice of the meeting was given to the shop stewards and all of the employees of Respondent attended the meeting. At this meeting she spoke of the ``possible merger into Local 8- 406'' and it was decided that the vote on merging with Local 406 would take place at the next union meeting on March 8, 1994. About seven union members attended the membership meeting on March 8, 1994. Notice of this meeting was sent to the shop stewards for each of the Union's shops to be posted at the shops. Michael Meyers, the shop steward at the facility, however never received it. Adams read the minutes of the prior meeting and a discussion took place about a merger with Local 406. Those present voted unanimously in favor of this merger. By letter dated March 9, 1994, Adams wrote to the president of the O.C.A.W. International union to inform him of the vote to amalgamate into Local 406. By notice to the officers of Local 406 and to the Union, dated March 23, 1994, the International president approved of the merger to be effective April 1. By letter dated March 31, Adams wrote to Respondent, as well as the other employers with whom it had contracts, that the Union had ``merged into'' Local 406. The letter concludes: ``Therefore, upon receipt of information from Local 8-406, kindly contact and forward all future correspondence regarding Local 8-712 union business to officers of merged Local 8- 406.''
    William Cerezo, an employee of Respondent and assistant shop steward at the facility, testified that shortly before the March 8, 1994 election, he received a telephone call from Adams saying that the election was going to take place and that he should attend. Of Respondent's employees, only he, Meyers, and Hector Aponte, another assistant shop steward at the facility, attended the meeting. Horvath testified that prior to the merger with the Union, Local 406 had approximately 1000 members. In about the late summer of 1993, he had discussions with Adams about a possible merger of the unions. In a letter dated November 1 to be posted on the bulletin board of all its shops, Horvath notified the Local 406 members of a regular monthly meeting to be held on November 16, at which one of the items to be discussed was an amalgamation with the Union. About 12 to 15 members attended the meeting, and a motion to accept an amalgamation with the Union was passed unanimously. After the Union voted to approve the amalgamation, Horvath wrote to the International, by letter dated March 10, requesting approval of the merger. As stated above, the International approved on March 23, 1994. The parties stipulated that since that time, Respondent has been remitting dues to Local 406 and has been making contributions to the International's pension fund, and that Rattner has met with representatives of Local 406.
    The Union had represented Respondent's production employees at the facility for approximately 20 years. The most recent contract between the parties is for the period December 1, 1991, through November 30, 1994. This contract contains a union-security clause and checkoff provision, providing that the Respondent shall deduct union dues and initiation fees from the members' wages and shall remit these amounts to the Union, as well as a grievance-and-arbitration clause. It is alleged that Respondent violated Section 8(a)(1), (3), and (5) of the Act by committing certain acts during scheduled grievance meetings and thereafter on June 16 and September 22. It is alleged that on those dates Respondent designated its attorney as its agent to represent it at the grievance meetings with the Union, but failed to authorize him to bargain with the Union over the grievances or to settle the grievances and, on these dates, prohibited Michael Meyers and Cerezo, the shop steward and assistant shop steward, from attending these meetings, notwithstanding the contract between the parties and the past practice of permitting shop stewards and assistant shop stewards to attend bargaining sessions and grievance meetings during working time and, on about June 16, issued written warnings to Meyers and Cerezo for attempting to attend the grievance meeting held at the facility that day.
    Adams whose testimony, while fairly credible and believable, was not a model of clarity, was one of those present on behalf of the Union at these grievance meetings. The meeting of June 16 was scheduled to attempt to settle some pending grievances. It took place in a room on
the second floor at the facility. Attending were Adams, Union Attorney Vito Mundo, Respondent Attorney Stephen Bermas, and Respondent's plant manager, Michael Murray. Adams testified that while she and Mundo were waiting for the meeting to begin, Meyers and Cerezo came into the room and ``then they were being paged to return to work and then they paged Steve Bermas to send them back to work.'' They never attended the meeting. At this meeting Bermas told them that he had no authority to make any decisions; all decisions were made by Rattner. When issues were discussed, Bermas walked out, spoke to Rattner, and reported her position on the grievance. As best as she could recollect, no grievances were settled with Bermas at this meeting. Adams could not remember how many times she had previously been at the facility prior to June, but on those occasions she was there with the then union president, Murray, who ceased working for Respondent on January 10, 1994, and testified as a witness for the General Counsel, testified that on that day ``we interpreted that we really were not obligated to have them [Meyers and Cerezo] leave their work area.'' Because they came to the grievance meeting, he issued them a written warning on the instructions of Rattner. He testified that, in the past, the Union's representatives were allowed to meet with the shop steward for brief periods to discuss grievances as long as it did not interfere with production, and the shop committee was allowed to attend ``grievance meetings.'' He testified further that at these meetings, Bermas told the Union that he didn't have the authority to resolve the grievances, that he had to check with Rattner, and he did not resolve any grievances on his own.     Mundo, whose law firm was retained by the Union to represent them for problems that they were having with Respondent, testified that he was present in the second floor room at the facility on June 16 for a grievance meeting. The purpose of the meeting was to attempt to resolve eight items for which the Union had issued demands for arbitration. When he and Adams arrived at the room, Meyers and Cerezo were already there, but Murray and Bermas told them that they had to return to their workplace, and they left. He wanted Meyers and Cerezo at the meeting because they knew best what was occurring at the facility, but they left as requested. Shortly after Meyers and Cerezo left the room, he heard Rattner yelling: ``I'll fire them all before I do anything. They'll all be gone.'' When they began discussing the grievances Bermas agreed with the Union on most of the grievances, but he said that he had to go out to discuss the issues with Rattner:

He went out for several minutes, came back maybe five minutes later and said well, I'm sorry, my view doesn't count, Ms.Rattner is a tough woman and she does things her way. Whether or not I think you have a point or not doesn't matter here, Ms. Rattner said that she wouldn't agree to any of these items to be resolved.

     Mundo asked why they were meeting if only Rattner had the authority to make the decisions, and Bermas said that he didn't have the authority and that he could only say what he was told, and that he had to go back to Rattner to ask her whether or not he could do something, ``and if she says no, she says no. My opinion doesn't count.'' On one of the occasions that Bermas left the room, he returned with Rattner. After discussing how she became involved in the business when he husband retired, she proposed: ``If you drop all the grievances, then    let's try to work forward from here, let's drop everything that's pending now.'' Mundo said that the Union would be happy to work with her, but they could not drop all the pending grievances. Rattner became upset and began yelling that the Union was going to put her out of business and she left the room. Nothing was resolved at that meeting.
    Cerezo testified that he was asked (presumably by the Union) to
attend this grievance meeting. As he got to the room where the meeting
was being held, Murray told him to return to his work station, which he
did. Shortly thereafter, Murray gave him a written warning for not being
at his work station when he should have been there. Cerezo asked Murray
why he wasn't allowed to attend the grievance meeting, and Murray told
him that Rattner didn't want him in the meeting during worktime. The
warning that Cerezo received that day states that he was in the
coffeeroom (where the grievance meeting took place) rather than at his
work station. He testified that when he told Murray that he was not in
the coffeeroom, Murray said: ``I wrote down what I was supposed to write
down. She wants to write you up for it, she's writing you up for it.''
Meyers, who had been shop steward at the facility for 3 or 4 years,
testified that on the evening Adams called him and told him that there
would be a grievance meeting in a room at the facility and asked him to
attend. He had never previously attended a grievance meeting. On the day
in question, before he and Cerezo could get into the room, Murray told
them that Rattner said that they were not allowed to be in the meeting
and that they should return to their work stations. Later that day,
Murray gave him a written warning identical to Cerezo's warning.
    Rattner was called as an 611(c) witness by the General Counsel at
which time she was asked about this June 16 grievance meeting, among
other subjects. She was asked:

Q. Directing your attention to June 16, 1993, isn't it true
   that there was a meeting with the union that day to
   discuss grievances?
A. I don't recall.
Q. Do you recall attending a meeting with the union or
   having a meeting scheduled with the union in June?
A. what was the date?
Q. June 16, 1993.
            A. I don't recall.

       Rattner then answered two
       questions fairly candidly:

Q. Isn't it true that prior to June 16, 1993, the shop
   committee attended grievance meetings and bargaining
   sessions?
A. They were asked to attend.
Q. Isn't it true that they attended those meetings?
A. Not always.

       Rattner then returned to her
       prior attitude and position:

Q. Isn't it true that these sessions were held during the
   work day, prior to June 16, 1993?
A. I don't recall.
Q. Isn't it true that they were held at 10 a.m. in the
   morning prior to June 16, 1993?
A. I don't recall.
Q. Did you attend those meetings, when they would have
   grievance sessions?
A. Not necessarily.
Q. Isn't it true that you had Michael Murray issue written
   warnings to both Meyers and Cerezo because they attempted
   to attend the union meeting on June 16, 1993?
A. I would doubt that.
Q. Isn't it true that written warnings were issued to both
   Meyers and Cerezo on June 16, 1993?
A. I don't recall.


Rattner's attitude and memory improved substantially about a month later when she was questioned about this incident by her counsel. At that time, she testified that at about 10 a.m. on June 16 she saw Meyers and Cerezo outside the coffeeroom, where the grievance meeting was to take place. Because that area was ``only for authorized personnel and not for the factory employees'' she told them that they had no business being there; ``they mumbled something about Union, you know, meeting, but that was it.'' A grievance meeting was scheduled to take place in that room at 11:30 that morning, but nobody was in the room at the time. She told Murray that they were there. She testified that she was aware that Meyers and Cerezo were going to participate in the grievance meeting. She further testified that in the prior 10 years there had never been a grievance meeting at the facility.
    Bermas testified that the June 16 grievance meeting was the first grievance meeting that he attended for Respondent. At either that session, or the grievance meeting on September 22, to be discussed more
fully below, Mundo accused him of not being in good faith because he did not have authority to negotiate with him on the grievances. Bermas responded that was ``nonsense . . . I had a client, I was the attorney,
not the client, and any type of agreement that he and I came to, of course, was subject to the approval of the client and in this case, really meant Mrs. Rattner.'' He testified that during the grievance
meetings of June 16 and September 22, there were some grievances that he was aware of prior to the meetings and some that he didn't know of until after the meetings began. As to the former, ``I knew on some grievances
going in to the meetings how far I could go and with those I didn't have to go back, but it is only because I already had her [Rattner]approval.'' He testified further: ``But . . . if we got in to new areas
that I couldn't have expected, so I couldn't have gotten . . . the parameters of my authority beforehand, then yes, I would have to go back to Ms. Rattner to have it approved.'' He never told Mundo that he agreed
with him on his grievances, but lacked the authority to resolve anything.
    The next grievance meeting took place at the facility on September
22 at 4 p.m. Adams and Frank Melton, an International representative
attended for the Union; again, Bermas and Murray attended for the
Respondent. Adams testified that she asked to have Meyers and Cerezo
join the meeting, but Rattner said that they would not be allowed to do
so until 4:20 p.m., when their workday was completed, but they never did
come to the meeting. Adams and Melton remained until about 4:30 p.m.;
they discussed grievances with Bermas and Murray, but Bermas left the
room and returned, saying that he had no authority to do anything about
the grievances and none were settled at this meeting. Melton testified
that prior to September 22, he had a number of conversations with
Rattner where it was agreed that the grievance meeting would take place
on September 22 at 4 p.m. Melton told her that he wanted his grievance
committee to be present, and she told him that Bermas and Murray would
be present for Respondent. He said that he had no objection to that. He
and Adams arrived at the facility that afternoon and were taken to the
conference room at 4 p.m.; Bermas was present, but Murray, Meyers, and
Cerezo were not. When Melton asked Bermas where they were, he said that
Murray was busy and the grievance committee members were loading a
truck. Bermas also told them that he didn't know anything about the
grievances and was not prepared to discuss them. Bermas left the room to
speak to Rattner, and when he returned Melton again asked him where
Murray and his committee were. Bermas said that he didn't know where
they were. Melton asked about the grievances and Bermas said that he
didn't know anything about the grievances that he was talking about.
Melton said that since his committee and Murray were not there, and
Bermas didn't know about the grievances, that they were leaving and, at
about 4:30 p.m., they left. Meyers testified that he knew ahead of time
that Melton and Adams would be at the facility on September 22 at 4 p.m.
for a grievance meeting. At about 3:55 p.m. that day, Murray told him
that they could not leave work to attend the meeting until 4:20 p.m. At
about 4:20 p.m. they went to the conference room, but everybody had left
by then.
    The complaint alleges that Respondent violated Section 8(a)(1), (3),
and (5) of the Act by assigning Meyers to clean the bathroom at the
facility in about June, and by assigning Meyers and Aponte to clean the
bathroom in about October. Meyers testified that in about June or July,
Rattner told him to come to her office because someone had filed a
complaint with OSHA and a woman from OSHA was there to inspect the
facility. At Rattner's request, Meyers showed the woman around the
facility. After this woman left, Murray told him that he had to clean
the fourth floor bathroom. He had never done this work before and it had
previously been performed by ``Nicky,'' who cleaned the bathrooms as
part of his job and was still working at the facility. Murray testified
that Meyers had submitted some grievances about the bathrooms and
Rattner told him to assign Meyers to clean the bathrooms--``to solve
that grievance.'' Meyers had never before cleaned bathrooms at the
facility. Previously, Murray had rotated this work among the newer
employees. Meyers continued cleaning the bathroom until the end of
December, and in about October, Aponte was assigned to clean another
bathroom at the facility. Without reciting Rattner's 611(c) testimony at
length, it was, again, generally, evasive and not responsive, although
she did testify that she did not direct Murray to assign Meyers to clean
the bathroom. As part of Respondent's case, in answer to questions from
her counsel, her answers were clear, concise, and direct:

Q. Did you ever instruct Michael Murray that they had to
   clean the bathrooms every day?
A. No.
Q. What, if any, instructions did you give to Murray about
   the cleaning of the bathrooms?
A. That we needed a schedule for maintaining the cleanliness
   of the bathrooms, and that this should rotate among the
   workers.
Q. And what was Mr. Murray's response?
A. He agreed.

    Meyers testified that in about September or October, right after he
gave a grievance to Murray, Murray told him that from then on he was to
clean the bathroom and he did so until about December. Murray also told
Aponte to clean another bathroom at the facility; Aponte is a union
committeeman. On cross-examination, Meyers testified that after he had
been told to clean the bathroom in June or July, he did it continuously
until the end of the year. He was asked, if that was so, why did Murray
have to tell him again in September or October to do it; he could not
answer this question. Aponte testified that about this time, Rattner
accused him of standing around talking to a fellow employee when he
should have been working; he denied it. Aponte asked Rattner why she was
harassing him, and she said that she would harass him until he left her
employ. Later that day she asked him if he felt that he was being
harassed and he said that he did. She told him that he should go to the
Union and tell them and he said that he would. Rattner told Frank to
give him a warning for not working, and he received a warning, dated
October 5, stating: ``Employee was seen not working. Also a warning for
conduct.'' Later that day, Murray told him that he was to clean the
bathroom on the second floor. He said that he would do it, but under
protest because he had never previously done it. He continued to perform
this work until December 22. Murray testified that in about October,
Meyers and Aponte together filed a grievance complaining that the
bathrooms at the facility were dirty. Rattner directed him to assign
Meyers and Aponte to clean the facility's bathrooms because they filed
this grievance. They had not previously been assigned to clean the
bathrooms. Rattner testified that she never instructed Murray to assign
Meyers and Aponte to clean the bathrooms and doesn't know whether she
received a grievance regarding the cleanliness of the bathrooms.
    It is next alleged that in about June or July, Respondent suspended
Aponte for 3 days without pay in violation of Section 8(a)(1), (3), and
(5) of the Act. Aponte testified that he was elected as assistant shop
steward in about late 1992; this involved covering for Meyers or Cerezo
in their absence. He has filed grievances on his own and he first
attended a grievance meeting in about summer 1993. On about June 23,
while he was making a batch of paint at his work station, an OSHA
inspector came through the facility. Shortly thereafter, Murray told
Aponte that Rattner wanted to speak to him; Aponte told Murray that he
wanted Meyers to come with him, but he was not allowed to accompany
Aponte. Rattner told Murray to give Aponte a 3-day suspension for
failing to wear a mask. He testified that he was wearing a mask, while a
lot of other employees were not. The procedure is to wear a mask while
pouring the paint, as he did. The 3-day suspension states that he had
been warned numerous times to wear the proper safety equipment. He
testified that he had previously been warned verbally about wearing the
mask. Respondent's records establish that he had previously received
warnings dated August 1, 1991; January 24, 1992; and January 11, April
16, and June 11. Meyers testified that Aponte became a member of the
union committee sometime in about 1993 at which time he (Meyers) told
Murray that Aponte was a member of the committee. Aponte attended his
first grievance meeting in December. Mundo testified that he didn't know
whether Aponte was part of the union committee at the time of the June
16 meeting. Murray testified that Aponte became part of the union
committee in about July or August.
    Murray testified that certain employees at the facility are required
to wear goggles, masks, and gloves during certain procedures, for
example, when they are mixing paints. The purpose is to prevent the
paint or airborne particles from coming in contact with their skin.
Aponte and other employees sometimes removed their mask and goggles.
Aponte was given the 3-day suspension in June because Respondent
``wanted to make an example of him, being that he was involved with the
union, he was a key figure to do that to.'' He was not present when
Aponte was allegedly not wearing his goggles and mask when he should
have been, although he knew that Aponte was in the processing area, an
area that requires that these items be worn, at the time. He also
testified that Rattner and Aponte had ``a very hostile relationship. She
didn't like him.'' Rattner testified that Aponte was given the 3-day
suspension because he was not wearing a mask and goggles when he should
have been wearing it. She did not observe any other employee in the
department who was not wearing a mask when he should have been wearing
it. She testified further that it was not until early 1994 that she was
aware that Aponte was part of the union committee. At that time, Aponte
was present at a meeting she had with the Union and she asked why he was
there. It was then that she was first told that he was part of the
committee.
    In about July, while at work, Aponte made a sign about a foot square
with the Union's name on it. He did it because many of the employees did
not know the Union's name, and he testified that he did it on his
breaktime. Rattner saw him with the sign and claimed that he made it
during working time, but Aponte claimed that he made it on his
breaktime. The next day he was transferred to a different job, filling
paint and was given a warning for making the sign. He had previously
been transferred when Rattner saw him doing something allegedly
improper. The warning that he received for this infraction is dated July
21.
    Aponte received a warning dated October 25, wherein he was suspended
for 3 days ``as a result of numerous warnings, verbal and written,
concerning not working as assigned, and conversing instead of working.''
It is alleged that this warning violates Section 8(a)(1) and (3) of the
Act. The sole testimony supporting this allegation is Aponte's testimony
that on the day in question while he was working ``moving paint around''
and waiting for the conveyor belt, Rattner passed by and claimed he was
talking to another employee instead of working. Aponte claimed that he
and the other employee were working, waiting for the conveyor belt. As a
result, he received the warning and, that afternoon, Murray told him
that he was to clean the second floor bathroom, which he had not
previously done.
    It is next alleged that Respondent fired Antonio Arias on about July
7 and failed to reinstate him between July 7 and 16, and discharged him
again on about August 27 and failed to reinstate him until July 18,
1994, in violation of Section 8(a)(1) and (3) of the Act. The contract
between the parties requires employees to become members of the Union
within 60 days of the commencement of employment at the facility. The
parties stipulated that Arias was first hired by Respondent on October
19, 1992, and terminated March 12. Arias testified that he began working
at the facility in October 1992 in the shipping department. He worked
for about 7 weeks and Murray ``sent him home'' without a reason. About 2
weeks later he returned to Respondent's employ this time mixing paint.
He filled out a new job application and again worked for 7 weeks and was
sent home by Murray without reason. In July, he was called again and
told to return to work the following day ``as a new employee'' in the
lab. He filled out another job application and worked for another 7
weeks at which time he was fired by Murray, although there had been no
complaints about his work. He was never a member of the Union and never
returned to Respondent's employ again. Murray testified that Arias
worked for the Respondent on several occasions. On the first occasion,
he worked for 3 or 4 months at which time Rattner instructed him to let
him go, allegedly because his did not perform quality work, whereas the
real reason was that if they kept him he would have to go into the
Union. Approximately 3 weeks later he rehired Arias as a new employee on
the instructions of Rattner, who felt that he did good work and that
they should use him again. She directed Murray: ``Bring him back and
take him up to the 60 days point and then . . . release him.'' They did
that to Arias on three occasions, in order to prevent him from working
for 60 days, when he would have had to join the Union. Rattner testified
that she never directed Murray to terminate employees when they were
about to reach their 60th day of employment with Respondent.
    Rattner was especially difficult and testy when being questioned
pursuant to Section 611(c) about Arias and his personnel files. Some
examples are:

Q. When I was out at your factory on Friday, I looked at
        your personnel files, isn't that correct? You provided me
   personnel files, isn't that correct?
A. Presumably you looked; I was not watching what you looked
   at.
Q. You provided them to me, isn't that correct?
A. The company provided them to you, yes . . . .
Q. Who handled the terminations in the factory?
A. I need a definition of termination.

Arias' payroll records establish that he worked from the week ending October 23, 1992, to the week ending March 5; during the final 8 weeks of this period, he worked 3 40-hour weeks and 5 32- hour weeks. He returned to Respondent's employ the workweek ending June 4 and worked until the workweek ending August 27. He worked 40-hour weeks for each        of the final 9 weeks of this period. It is not clear from these payroll records whether there was a break in his employment service between the workweek ending June 18, when he worked a 32-hour workweek, and the workweek ending June 25, when he worked a 40-hour week.     In a similar vein, it is alleged that Respondent discharged Ted Sossinski in about October or November, and failed to reinstate him in violation of Section 8(a)(1) and (3) of the Act. Sossinski did not testify. Murray testified that Sossinski was hired on July 13 and terminated August 13. He was a very good employee, but was terminated because: ``We were not allowing anybody to have enough time to go into the union.'' For about a year, at that time, they had not had any employee who worked for a long enough period to join the Union. He was rehired on October 4 ``as a new employee with nothing accrued'' and was terminated on November 19. Two days earlier, at a meeting, the Union notified Murray that Sossinski had a total in excess of 60 days of employment at the facility. Murray told Rattner that Sossinski ``had kind of slipped through the network, so we got rid of him the next day.'' Murray testified:

  Well, it happened to everyone that we hired for the period of a
  year, because no one ever made 60 days. If the union didn't
  question us on it, we would let them go past their 60 days, but
  the minute they brought up the issue, they were gone.

       Mundo testified that at a eting with Respondent he asked about certain employees and Murray stated that Sossinski was fired after their meeting on November 17 because the Union notified them that he was        employed long enough to be in the bargaining unit. Adams testified that at the November 17 meeting, the Union told Murray that employees had to go into the Union after 60 days of employment at the facility. She told Murray that there was an employee named Ted who should have been in the Union, and Murray said that he was employed there, but that he would terminate him. As stated above, Rattner eventually testified        that she never instructed Murray to terminate employees before they reached 60 days' employment. She had no direct        role in Sossinski's termination; however, she was informed that he did not produce the I-9 form that is required for employment with Respondent. As credibility is an important issue here however, it may be helpful to     recite some of her initial testimony as a 611(c) witness:

Q. Are you familiar with an employee named Ted Sossinski?
A. I know the name.
Q. Isn't it true that he worked for you on more than one
   occasion?
A. I don't know.
Q. Do you know what department he worked in?
A. We have no departments.
Q. What area did he work in?
A. We have no areas.
Q. Do people have job classifications?
A. No.

It is alleged that in about October, Respondent assigned Meyers to
work overtime in violation of Section 8(a)(1), (3), and (5) of the Act.
Meyers testified that in about October, he filled out some grievances
for employees about harassment. He had the grievances in his hand
preparing to give them to Murray or Rattner when he met Rattner on the
second floor of the facility at about 4:15 p.m. She asked him what he
had in his hand and he told her that they were grievances that he was
going to give her and she told him to put them down and to give them to
her after work. About 5 minutes later when the workday was over, Meyers
gave the grievances to Murray. About 5 minutes later, he was told that
he had to work overtime; he was not given a choice on the subject, and
he testified that he had never previously been assigned to work
overtime. Murray testified that on October 22, he received a grievance
from Meyers regarding the assignment of mandatory overtime. Shortly
thereafter, Rattner told him that Bermas said that Respondent could
assign mandatory overtime to employees. He knew that Meyers did not want
overtime work, and later that day, he told Meyers that he had to stay
overtime that day, or he was not to come in the following day. He was
given this overtime in retaliation for submitting the grievance and
being the shop steward. Rattner testified that Meyers was not given
overtime work because he complained about overtime work or because he
filed a grievance about overtime assignments.
    It is further alleged that Respondent violated Section 8(a)(5) of
the Act by denying the Union access to its facility since about October
26, notwithstanding the contract between the parties. Article 23 of the
contract, plant visits, provides:

A duly authorized representative of the Union shall be permitted
access to the factory of the Employer upon condition that he
shall before entering the factory, make application therefor to
the Employer, and upon further condition that he shall not
during such visits interfere with production in the factory.

       Adams testified that prior to
    October, the Union had no problem with visits to the facility; ``Mr. Melton, or anyone who chose to go over there, was allowed to go through the plant with no problem whatsoever. We'd park the van or the car in the back and just walk in. There was no problem.'' They did not have to call ahead of time, and did not need an escort at the facility. By fax to the Respondent dated October 26, Adams wrote that pursuant to article 23 of the contract, the Union ``would like to visit the plant on Wednesday, October 27, 1993, on or about 11:00 a.m. If, for any reason, you will not permit this visit, please explain why, and notify me immediately.'' Rattner wrote Adams that she could not come to the facility because Bermas was not there on that day and that ``[a]n appointment will have to be made to accommodate your request. We would also [have] to know the purpose of your visit.'' Adams then called Horvath and asked him to accompany her to the facility. When they arrived at the facility they spoke to the receptionist on the speaker phone at the entrance and asked permission to come inside to speak to Rattner or Bermas. She told them that they could not come in because Bermas was not there. She and Horvath noticed Bermas' car in the lot and Horvath got on the speaker phone and asked to see either Rattner or Bermas. They were allowed in and were met by Constantine Karras, the bookkeeper, who told them that they could not meet with Rattner, and Bermas was not available, so they left. By letter to Respondent, dated November 19, Adams notified Rattner ``that as a duly authorized representative of the Union, we would like to visit the plant on November 29, 1993 at approximately 11:00 a.m.'' She received no response to this letter.
    Murray testified that prior to October, article 23 of the contract ``was interpreted in a very loose fashion that we could handle it informally.'' Prior to this time, the Union did not have to make written notification, did not have to ``formally'' give the reason for the visit, and did not have to be escorted throughout the facility. At about that time, Rattner told him: ``they're holding us to the contract, so we're going to hold them to the contract, and it says here they have to apply, we interpret that they have to give written notification and it has to be approved by the company.'' Mundo testified that prior to a meeting that the Union had with Respondent's representatives on December 1, as will be discussed more fully below, OSHA found numerous violations at the facility. Sometime thereafter, but still prior to December 1, OSHA wrote to the Union that they had reached certain agreements with Respondent because Respondent alleged that it cleared up the violations.
He testified that he believes that under OSHA rules a party has a specific period in which to file exceptions to such an action. Adams' November 19 letter to Respondent was sent to determine whether the violations had been cleared up. In addition, at the wage reopener meeting on December 1, Mundo told Bermas that the Union wanted to visit the facility, but Bermas said that he didn't think that the Union had that right. Mundo showed him article 23 of the contract, and said, ``Now do you think that we have the right to go in?'' Bermas responded: ``We don't see any reason for it. Besides, you didn't give us sufficient notice.'' Mundo said, ``Well, we're all standing here now, let's pick a day so that nobody can say that we didn't give you sufficient notice,'' but Bermas refused to allow them to visit the facility. Mundo told Bermas that they had to visit the facility within the time period that OSHA gave them to object to its agreement with Respondent. Bermas said that the union people who work at the facility could do it, ``we're not allowing the Union in.''
    Rattner testified that she refused Adams' October 26 request for access to the facility because it was not possible to arrange a visit for the following morning, and these visits were Bermas' responsibility and he was not available to escort the union representatives throughout the facility. In addition, due to the nature of the operation, they have to restrict access to the facility because of the possible danger of a visitor smoking or getting splattered by the paint. She had never previously received a request from the Union to visit the facility. Bermas also testified that prior to this request, he had never received a request from the Union to visit the facility.     It is next alleged that on about October 15, Respondent reduced the frequency with which it paid its employees from once a week to once every 2 weeks in violation of Section 8(a)(1) and (5) of the Act. Murray testified that on a Friday in October he went to get the paychecks to distribute to the employees and was told that there were no checks, that beginning that week employees would be paid biweekly. He informed the employees of the change on that day. To his knowledge, Respondent did not first discuss this matter with the Union. A memo from Rattner to all employees, dated October 15, states: ``A change has occurred in the payroll system. Future payments of wages will be made every two weeks for wages earned over a two week period. You will receive the next payroll check on 29 October 1993.'' This biweekly pay lasted until December 22. Mundo testified that in October Adams told him that Respondent's employees informed her that beginning at that time they were going to be paid every 2 weeks instead of every week. He called Rattner and told her that it was a breach of contract for her to unilaterally change the payroll week without first discussing it with the Union. She told him to speak to her attorney, Gerald Richman, which he did, and Richman said that he would discuss it with Rattner. By letter to Rattner dated October 22, Mundo objected to this payroll change, alleging that it violated the contract. He testified that the Union received no prior notification from Respondent about this change. The Union filed notice of arbitration about the change, and shortly before the arbitration was to take place, Richman told him that Rattner agreed to return to the weekly payroll. By letter to Mundo dated December 8, Richman confirmed that ``beginning with the upcoming pay period,'' Respondent would return to a weekly pay system. On December 22, the employees eventually received checks for 2 weeks' work. Rattner was asked by the General Counsel:

Q. Did you discuss this [the payroll change] with anyone
   from the union, Local 8-712, Oil, Chemical and Atomic
   Workers, AFL-CIO?
A. It was not my responsibility to discuss with the union,
Administrative Law Judge: Remember, yes or no.
A. No, I did not.

    The next allegations involve the Union's request for information and
the Respondent's alleged refusal to provide the information. It is
alleged that by letter dated November 29, and by oral request on about
December 15, the Union requested that Respondent provide it with
information concerning the cost of medical insurance and types of
coverage provided; that by letter dated about December 1, and by oral
request on about December 15, the Union requested that Respondent
provide it with a list of all current employees, their job titles and
hourly pay; and that by letter dated about December 1, and by oral
request on about December 15, the Union requested that Respondent turn
over its financial books and records to the Union. It is alleged that
the Union was entitled to these financial records because on about
December 1 and 15, at the wage reopener talks, Bermas informed the Union
that Respondent could not afford any increase in wages or medical
benefits.
    Article 13(e) of the contract provides:

        Either the Union or the Employer, upon thirty days prior written
        notice to the other party, may reopen negotiations as of
        December 1, 1992 and/or December 1, 1993, solely on the issue of
        the rates of pay during the then remainder of the term of this
        contract. In all other respects, except as provided in Paragraph
        17 (b)1C of this contract, this contract shall remain in full
        force and effect until November 30, 1994.

      Article 17(b)1C provides an
      identical reopener on the
      subject of medical coverage. By
      letter to the Respondent dated
      November 29, Mundo wrote:

        In preparation for the collective bargaining negotiations
        concerning wages and medical benefits which is scheduled for
        Wednesday, December 1, 1993, please provide me, on behalf of the
        Union, with the information regarding the cost of medical
        insurance and types of coverage which was stipulated that you
        would provide the Union as a result of the July 16, 1993
        arbitration.

       Mundo testified that the Union needed this information because medical coverage was one of the subjects available for reopening, and in order to ``intelligently discuss and negotiate'' about this item,
they needed this information which, at the time, only the Respondent knew. By letter and fax dated December 1, Mundo wrote Rattner:

    On behalf of Local 8-712 OCAW, I hereby request the
   following information which is necessary for the Union to
   prepare for current negotiations concerning wages.
    A list of all current employees, their job titles and hourly
   salaries. Since employee's job functions have often been
   changed, it is necessary to have this information on an
   individual basis.
    Since this information is relevant for our negotiations
   session today and you do not have a large workforce,
   please have this information for us at this afternoon's
   meeting. In addition, please have the information
   previously requested regarding the medical insurance
   coverage available for today's negotiations.

    Bermas testified that in about August or September, the Union had
requested a list of all union members, and the dates of hire and wage
rates and he supplied this information to the Union. On December 1 the
Union again requested this information and Bermas said that he had
already given them the information. After consulting with his client,
Mundo said that they wanted a list of all former employees, going back
to the commencement of the contract, as well as the present employees.
Bermas said that he didn't have that information with him, but he would
have Karras prepare the list. Bermas left Respondent's employ on
December 30, prior to receiving this list. He never refused to give them
this list. As to the Union's request for health insurance information,
he testified that, although he does not remember receiving the November
29 letter requesting the medical insurance information, Mundo asked for
it at the December 1 meeting:

        I said to him [Mundo] . . . when the company reduced the medical
        benefits pursuant to the language in the agreement a year ago,
        there had been no request for information; there had been no
        reopener even on these benefits. Now the second year the company
        was not changing the benefits, they were continuing with the
        same benefit level and I just didn't see why any cost
        information was appropriate.

    Mundo testified that at the December 1 meeting he asked Bermas for
the medical benefit information requested in the November 29 letter, but
Bermas said that they weren't entitled to the information. Mundo asked:
``How are we supposed to negotiate if you don't tell us what benefits
there are and the cost of those benefits?'' Bermas refused to provide
this information. Mundo then asked for the payroll information requested
in the December 1 letter and Respondent gave him the list of current
employees with their wage rate written in. This list was not adequate
because the Union suspected that people were working at the facility who
should have been, but were not, union members, and Mundo told Bermas
that the list did not satisfy their request because it only gave the
information for existing union members. He asked Bermas how many people
were then working at the facility, and Bermas refused to answer, saying
that it was none of the Union's business. Mundo then gave Bermas a copy
of the Union's demands for the reopener: it requested a $2.50-an-hour
wage increase and a request to ``reinstate the medical coverage that was
in effect on December 14, 1992, including prescription coverage.'' Mundo
testified that Bermas' response was:

   There would be absolutely no wage increase, the company couldn't
   afford it, business was bad . . . so there was no way the
   employer could afford it. He told me, right now anything that
   costs money we are not going to do. I asked about the medical
   benefits, he said forget it, we're not going to pay anything
   additional; there'll be no increases at all at this time. I said
   are you telling me that the company cannot afford to pay any
   increases? He said that's right, there's no way we're going to
   pay any increases, we can't afford it. I specifically asked him,
   are you telling me the employer is pleading poverty in this
        case, that they can't afford any increases? He said, there'll be
   no increases, that's right. I'm telling you, we cannot afford
   it. At which time I then asked to be able to view the company's
   books and records since they were pleading poverty in
   negotiations, that they could not afford to pay it. He said
   absolutely not, there's no way we'll turn it over.

  Respondent never gave the Union its books and records. Murray testified that, at this December 1 meeting, after the Union asked for the additional wages and health benefits, Bermas said: ``We didn't have the best of years, and we couldn't afford to give out any salary increases, and we were not changing the health benefits, we couldn't afford to.'' Bermas also said that Respondent could not remain ompetitive if they gave the employees increased wages. The parties met again on December 15. The date was arranged in conversations between Mundo and Rattner, when Rattner told him that December 15 was the only day that she was available to meet. When they arrived at the facility on that day, Rattner was not there. Mundo asked Bermas where Rattner was, and he said that she was at the facility, but was not going to attend the meeting. Mundo objected to her absence, and asked Bermas if he would give him the information that he asked for. Bermas said that the Union had no right to the medical information. He asked for the information about the employees working at the facility, and Bermas refused to give him that information as well. Mundo asked Bermas if he had the authority to negotiate about the reopener issues and Bermas said: ``We don't have any money to give; there'll be no increases.'' Bermas testified that on December 1 and 15, pursuant to the reopener, the Union asked for about a $2-an-hour increase and to have the medical benefits returned to the level they had been before being reduced in the prior year. Bermas told him that there would be no wage increase: ``the condition in the paint industry . . . was very difficult and the competition was very tight and . . . if Paragon were to give any wage increase or any other of their cost increases, they just would not be able to be competitive any more.'' He testified that at these meetings he never said that Respondent could not afford a wage increase:

   I knew enough about labor law to understand the difference
   between a company pleading that they couldn't afford to give an
   increase and that they couldn't do it for competitive reasons. .
   . . As I understand it . . . if your claim at the collective
   bargaining table is that you can't afford it, then you have to
   substantiate that by opening up your books to the Union, and the
   company just didn't want to do that. And besides, that was not
   the fact, it was not a case that they could not afford it.

    The remaining allegations relate to the events of December 22 and
thereafter. Wednesday, December 22, was a payday and was the final
workday that week because of the Christmas holiday. The next workday was
scheduled to be Monday, December 27. The events of December 22,
triggered by Respondent's initial failure to pay its employees 2 weeks'
pay to make up for the change to the biweekly pay system 2 months
earlier, caused a work stoppage that began that day and lasted until
February 1 and then until about March 6.
    Cerezo testified that on December 22, the employees were expecting 2
weeks' pay because they had not been paid the prior week. They received
their checks and it only was 1 week's pay and they asked Murray why they
were not paid for 2 weeks and he said that he didn't know. All the
employees then went to the second floor of the facility to speak to
Rattner. Cerezo, Meyers, Aponte, and one other employee went to
Rattner's office and asked about their pay and she told them that they
had already been paid and that they should leave. They said that they
were owed 2 weeks' pay because they had not been paid the prior week.
She asked Murray if it was true that they had not been paid the prior
week and he said that it was true. The employees said that they would
not leave until they got all their pay, and Rattner and Murray went into
the office. Murray came out 15 minutes later and said that their checks
for the prior week would be mailed to them. The employees said that was
not acceptable because they needed the money for Christmas shopping. At
about 6, Karras, the bookkeeper (who had been away from the facility on
jury duty), arrived and asked what the problem was. When he was told
that the employees were demanding their pay for the prior week, he said,
``What are you talking about? It's in the safe.'' Murray and Karras went
into the office and got the checks. Murray then told the employees that
all the employees, with the exception of six, would get their checks. He
handed out the checks to all except six and he told those who were paid
to leave the building. The six who did not get their checks, apparently,
Earl Bruno, Juan Serrano, Juan Gonzales, Jose Vendrell, Javier Restrepo,
and Pedro Mercado, were told to go upstairs to see Rattner. Cerezo
testified that he and the other employees who were paid followed Murray
and the six employees upstairs because they wanted to make sure that
they were paid; however, they were not allowed to enter the area. They
stood on the floor and heard Rattner apologize for what had occurred and
tell the employees that they were to report for work on Monday. Murray
opened the door and told Cerezo and the other employees that they were
not to come to work on Monday, Rattner only wanted the six employees
with whom she spoke to work on Monday. This was the first time that they
were told not to come to work on Monday. Cerezo, who had been employed
at the facility for 17 years, testified that he had never previously
been laid off. There had been occasions when some employees' workweeks
were cut to 32 hours, usually by seniority, but they were given about 2
days' advance notification of this change. The employees complained that
there was no prior notification of this layoff and that it was not done
by seniority, and said that they were all going to report for work on
Monday, which they did. They arrived for work the usual time on December
27, but Murray told them that only six named employees whom Rattner
wanted would be allowed in. Some of the employees asked why they were
not being allowed to work and why weren't they chosen by seniority, and
Murray said that Rattner only wanted those six. The employees said that
if all of them couldn't work, none would work. They remained outside the
facility until 4:30 p.m. and none of them worked.
    Earl Bruno, who had been employed by Respondent for 17 years,
testified that when he was given his check by Murray on December 22, it
was only for 1 week's pay when it should have been for 2 weeks. He and
the other employees said that they were entitled to 2 weeks' pay, but
Murray said that Rattner said that they were only entitled to 1 week's
pay. They all handed Murray their checks and went to see Rattner. Bruno
stayed in the back, while Cerezo and some other employees were in front
and went into Rattner's office. Cerezo told Rattner that they should
have been paid for 2 weeks, not one, and she took the checks from Murray
and they went into her office. At about 6 p.m., Karras arrived and when
they told him the problem, he said that their checks were in the safe. A
few minutes later, Karras and Murray came downstairs and said that they
had the correct checks, but were ``holding back'' six checks, and that
those six employees should go upstairs to speak to Rattner. Bruno and
five other employees were not given their checks and went to the second
floor to speak to Rattner. Rattner handed them their checks, apologized
for the problem, and told them to have a nice Christmas. ``Pedro'' asked
about his vacation and Rattner said that she knew about it and would
take care of it. Bruno said that he wasn't paid the correct amount
because of his vacation and asked Rattner to look into it. She said that
she had a dinner appointment that night and didn't have time to look
into it. She walked away, and ``all of a sudden she turned around and
she told me, you stay home on Monday, too.'' On the following day, Bruno
was called by Joanne, the receptionist at the facility, and was told
that he was not to come to work on Monday. He testified that about 3 or
4 years earlier there had been a layoff at the facility where certain
employees were informed during the day that they would be laid off at
the end of the day. He was not laid off because of his seniority.
    Aponte testified that on December 22, when they got their checks,
they realized that they had only been paid for 40, rather than 80, hours
of work. They told Murray that they should have been paid for 80 hours,
and he said that was all they were supposed to get. They said that they
were not going to leave until they were paid all that they were owed.
Later, when Karras arrived, they told him of the problem and he said
that the checks were inside. Murray then gave out the checks and said
that whomever did not receive a check should go to the second floor, as
Rattner wanted to speak to them. Six employees did not get their checks
and they went to see Rattner. The other employees ``were concerned that
they might not get paid,'' so they followed them to the second floor.
When Rattner saw them she said: ``Didn't you get paid? Why don't you go
home?'' Aponte said: ``Just pay them and we'll all go at the same
time.'' Rattner said: ``Whoever got paid, go home.'' They started to
walk out and heard Rattner screaming at Murray ``that she wanted all of
us laid off for that day.'' Aponte, who had been employed at the
facility for 7 years, testified that he had been laid off in the past,
but was notified days in advance of the layoff and was able to use sick
leave or vacation days for the layoff period. On December 22, the
employees were first advised of the layoff at about 6 p.m., and were not
given the option of using sick days or vacation days for that period.
All the employees appeared for work on Monday morning, but the gate was
closed and they were not permitted to work. They appeared at the
facility every day until February 1, when they returned to work, albeit,
briefly.
    Mundo testified that on the evening of December 22 he received a
telephone call from Cerezo, who told him of the events of the day as
discussed above:

   So my advice to Mr. Cerezo was that it appeared that this was
   purely retaliatory by the employer and that this was an unfair
   labor practice, and that it was up to the employees, if the
   employees wanted to band together and take action. That, in
   fact, I advised them that they should all report to work on
   Monday. I told them that they should sign in, have a sign in
   sheet to show that everybody was there, and everybody ready and
   willing to work because the employer's actions were clearly
   illegal and improper . . . .

    Murray testified that in the past Respondent has had seasonal
layoffs in around December or January. On these past occasions (prior to
1993), Respondent notified the employees at least 2 weeks in advance and
gave them an opportunity to use accrued sick leave or vacation time
during this period. In December, he was not specifically told that there
was to be a layoff until late in the afternoon of December 22. He
testified: ``It happened every year, so I didn't have to specifically be
advised, but I wasn't specifically advised that that day it was going to
happen.'' He testified that on December 22, after he gave the employees
their checks, they complained that they were owed for 2 weeks' work. He
reported it to Rattner, who said: ``This is the payroll, it's prepared
and that's it.'' The employees refused to leave the facility until they
got their 2 weeks' pay. Rattner prepared to write new checks for the
employees to cover the second week's pay when Karras arrived and the
employees were given their full compensation. When he was about to give
the employees these additional checks, Rattner told him that on Monday
the facility would be closed for a seasonal reduction and she only
wanted six employees to come to work on Monday. This was the first that
he heard of this reduction. Rattner gave him a list of six employees and
he was told to tell those employees to go to see her in her office. He
did that, and told the other employees to go home and not to report for
work on Monday, but to call him on a daily basis and he would tell them
when to return. He went to Rattner's office with the six employees and
she told them to come to work on Monday. They said that they would not
come to work unless everybody came back. Bruno, who had been asking him
about alleged accrued vacation time that he had, then asked Rattner if
he could get his vacation time. Rattner said that it wasn't the proper
time to discuss it. ``But he pursued it for whatever reason, and tempers
flared, and Mrs. Rattner told him that he was not to come in on
Monday.'' On Monday, all the employees reported for work. He asked
Meyers if the six employees that they wanted were going to report for
work. Meyers said that they would not work unless everybody worked, and
they were not allowed to work. This procedure continued on a daily basis
until his employment with Respondent ended 2 weeks later.
    Murray testified further that Respondent has an inventory done every
year, and, as of December 22, it had not yet been done. Therefore, he
knew that it had to be performed on December 27, 28, and 29, because the
facility was to be closed on December 30 and 31. When asked on cross-
examination: ``And you knew you didn't need the full complement of
employees?'' he testified: ``Well, no, that doesn't follow.'' He
testified that ``the inventory was taken around production'' and that he
uses three or four of the unit employees for the inventory. He was
asked:

Q. Okay, now is it your testimony that you didn't know you
   needed a reduced work force for the week of December 27th?
A. It was my testimony that I didn't make that final
   decision and nothing had been said up until that point,
   but we all knew that that is a slow period. No specific
   decision, you can't tell people Friday not to come to work
    Monday.
Q. Well wasn't that your responsibility as plant manager to
   decide how many people you needed to work each week?
A. It should have been, but I didn't make that decision.

    A few moments later he was asked:

Q. Well, did you ever have a discussion with Mrs. Rattner,
   hey, it's December 22nd or December 21st, you know next
   week we're going to have the inventory, we've got to get
   it done by the end of the week, we don't have any orders.
   We've got to tell the people, reduce the work force?
A. No, we had no such discussion.
Q. You knew it was going to be slow?
A. Yes, I knew that, that I knew.
            Q. And you knew there was going to be an inventory?
A. I knew there was going to be an inventory.
Q. And you knew you only needed four or five people to do
   the inventory?
A. Right. But we had always done that around production when
   it was warranted.

    Rattner testified that on December 22, she had ``an understanding''
with Murray that they would do an inventory the following week and the
sales and production ``would be extremely reduced.'' In prior years,
during inventories, ``a select few . . . were called to work during that
period.'' On December 22, Murray came to her office and said that there
was a problem, that the employees were supposed to get two paychecks and
only received one. Earlier, Karras, who was on jury duty, had given her
the checks which she had locked in the safe. She was under the
impression that the biweekly pay had ended previously and that the
employees were only entitled to 1 week's pay. Murray left and, shortly
thereafter, the employees lead by Meyers and Cerezo came ``barging''
through the factory, waving their arms and yelling. They spoke to
Bermas, who then told Rattner that they said that they were owed 2
weeks' pay. Rattner looked in the safe, but could not locate the
additional checks. She then called the payroll company and was told that
another set of checks was issued, but she could not find these checks,
so she began to write a new set of checks for the employees. Before they
could be completed, Karras returned to the facility, showed her where
the checks were located in the safe, and they were given to the
employees. During this period while they were looking for the checks,
``I raised the subject with Michael Murray as to who was going to be
coming back, who was . . . going to be reporting for work for that three
day inventory period.'' They decided on six employees who would work the
following week and it was Murray's job to notify the employees. Bruno
was one of the employees who was originally scheduled to return the next
week. She testified however that when he complained to her about his
vacation pay,

        I had the very strong sense that there was an order [sic] of
        liquor at that point and also it was getting on to 6:00 and my
        impression was that he wasn't his usual self, that perhaps this
        wasn't a good idea to bring him back.

On the morning of December 27, Murray told her that all the
employees reported for work and that their position was that
none would work unless they all worked. She never fired the
employees. In answer to a question from the General
Counsel regarding whether employees are given prior notice
of layoffs, Rattner testified:


       ``The employees were notified
       the day before if they were not
       required to come to work the
       following day.''
 

    By letter dated December 30 (and faxed to Mundo) Richman stated that
he was notified by Rattner that nine named employees (none of whom were
individually discussed above) were to report for work on Monday, January
3, 1994. Mundo responded to Richman's letter on the same day. His letter
alleges that the work stoppage that began on December 22 was a lockout
that followed Respondent's unfair labor practice, and that the layoffs
were unlawful and were not done in accordance with seniority.\4\ The
letter asks about the status of all of the union members who were
employed at the facility.
---------------------------------------------------------------------------
    \4\Art. 9 of the contract states: ``Seniority shall prevail with
regard to layoffs, rehiring and promotions. When layoffs are necessary,
the last employee hired shall be the first laid off.'' Art. 9 also
states that the shop chairman and shop steward shall head the seniority
list in the event of a layoff.
---------------------------------------------------------------------------
    On January 5, 1994, representatives of the Union and the Respondent
met at a diner near the facility. Mundo testified that during the week
of December 27 he had numerous telephone conversations with Richman
regarding the situation at the facility. On January 4, 1994, he received
a telephone call from an attorney whose name he believes is Robert
Sachs, who said that Richman was no longer representing Respondent, that
he was, and he would like to arrange for a meeting of the parties. Mundo
said that he had been trying to do that since December 27. They agreed
to meet at a diner (chosen by Rattner) near the facility at 10 a.m. on
January 5, 1994. Everyone (Mundo, Adams, Meyers, Aponte, Cerezo, Melton,
and Sachs) except Rattner arrived on time. Sachs said that Rattner would
be detained a bit because there were some problems at the facility. At
10:45, Rattner had not yet arrived and Mundo told Sachs that they would
remain for only 5 more minutes. At 10:50, they got up, went into the
parking lot, and Rattner drove up. Mundo and the union representatives
decided to return to the diner with Rattner and Sachs. Sachs opened the
meeting by explaining the reason for the meeting. Adams then said
something to the effect of: ``She didn't provide us with'' when Rattner
jumped from her seat and said, ``I have a name, I'm not going to be
referred to as she, I want respect and I'm leaving, I'm not going to put
up with this.'' She got up and left and that was the end of the meeting.
On the following day Mundo got a call from Sachs saying that he was no
longer representing the Respondent. Cerezo's testimony about this
meeting is very similar except that he testified that it was Mundo, not
Adams, who used the word ``she,'' which caused Rattner to say that she
was to be addressed as Mrs. Rattner, that she would not be dictated to,
and that she was terminating the meeting. Rattner, who was asked about a
meeting that took place at the diner on January 20, 1994, testified that
she was late for the meeting because she was trying to hold the
operation together during the strike. She testified that the first
person to speak was Adams, ``who immediately proceeded to what I
considered to be a personal attack on me. . . . She accused me of
stealing money, of not paying my employees, of not paying Union dues and
a whole lot of things.'' Rather than listen to such a personal attack,
she left to return to the facility.
    There were numerous letters and telephone conversations after
December 22 among Mundo, Richman, and Rattner that were intended to
settle the dispute and get the employees back to work. Mundo testified
that on January 11, 1994, he had a telephone conversation with Rattner
about having the employees return to work. He wrote her a letter dated
January 12, 1994, confirming the details of this understanding. It
states, inter alia:

     This is to confirm your telephone conversation with me on
   the afternoon of January 11, 1994.
   You stated to me that you want all of your employees who are
   members of Local 8-712 OCAW, who have not been working
   since December 22, 1993, to return to work.
   The employees will return to work provided that all
   employees are allowed to return to work, the employer will
  not retaliate, discriminate or take any disciplinary or
   adverse action against any employee because he or she has
   not worked since December 22, 1993 or because of the
   events of December 22, 1993, which lead up to this action.
   The Union and its members hereby reserve all of their rights
   to take whatever action they believe proper whether via
   the Courts, the NLRB, the grievance procedure or any other
   forum it feels proper to protect their rights and obtain
   any remedies for all acts which have occurred since
   December 22, 1993.
   The return to work of any employee is not deemed a waiver of
   any such rights.

It should be noted that the nature of the cross-examination
of Mundo indicates that Respondent's position is that
this letter did not constitute an unconditional offer to return
because it provided for the return of all employees, whereas
1 week earlier Respondent wrote to Mundo that it wanted only
nine employees to return. 
Rattner called Mundo after receiving this letter and said
that she disagreed with it because the only way that the
employees could return to work was if they withdrew their
charges at the Board and their grievances. Mundo told her that
was not acceptable and such a demand might violate the Act. In
addition, Rattner faxed to Mundo a response on the same day. It
states, inter alia:

  In a brief telephone conversation with my attorney, I relayed
  your claim that ``the withdrawal of all charges at the NLRB is
  in and of itself a violation of the labor law.'' He informed me
  that there is a procedure for retracting such charges.''

On that same day, she also faxed him a letter stating that as she
told him in a telephone conversation that day, she never
agreed to the statements contained in paragraphs 4, 5, 6,
7, and 8 of his January 12 letter. Still later that day,
       Mundo wrote another letter to Rattner summarizing their
earlier correspondence and conversations that day and
concluding that the union members ``are agreeable to
return to work at Paragon Paint, provided they reserve all of
their rights at the NLRB, through the grievance process
and via any other forum they may have available to them.''
Between that date and late January, Mundo and Richman had
numerous conversations in which they attempted to come to an
agreement providing for the employees to return to work.
This eventually resulted in an agreement that the employees
would return to work on February 1, 1994, which they did, and which will be discussed more fully below.
    The parties met again on January 20, 1994, with basically the same
individuals representing the Union, and Richman and Rattner representing
the Employer. At the conclusion of the meeting a tentative agreement was
reached wherein the employees would receive a 3-percent wage increase
and would be paid $275 backpay to cover the prior 4 weeks of being out
of work. This agreement was subject to ratification by the employees,
and the committee members who were present at the meeting said that they
thought that there would be problems getting the employees to approve
this settlement. The employees voted not to accept this tentative
agreement, apparently, because they were angry that Rattner referred to
the $275 backpay as ``bread money,'' which some of them considered
insulting.
    Richman wrote to Mundo on January 27, 1994, that Respondent was
puzzled by the lack of response from the Union to the apparent
settlement agreed to a week earlier. The letter states that unless
Respondent hears from the Union by noon on January 28, 1994, that the
employees will return to work on Monday, January 31, 1994, Respondent
would be forced to hire replacement workers to maintain its business. On
the following day, Richman again wrote to Mundo that he expects the
employees to return to the facility on January 31, 1994, and that the
return would ``be without prejudice to any and all outstanding charges
which may presently be pending before the Labor Board.''
    At the orders of their delegate, the employees returned to work on
February 1, 1994, at the usual reporting time, before 8 a.m.; Rattner
arrived about 40 minutes later. Cerezo testified that Rattner asked Fred
Frank, Respondent's general manager at the facility, what Aponte was
doing on the labeling machine, where he was working that morning, and
where he had worked prior to December 22. Frank then transferred Aponte
to labeling cans by hand and she then asked where Meyers was and Frank
said that he was working on the third floor. Rattner left the second
floor and, about 15 minutes later, Meyers came to the second floor and
said that Rattner had been harassing him on the third floor. Rattner
then returned to the second floor and said that she wanted to have a
meeting with all the union members. Cerezo picked up the intercom phone
to page the employees on the other floors to come to the meeting, and
Rattner grabbed the phone away from him, saying that he had no right to
use that phone, she was the boss, and it was her phone. Meyers said that
he did have a right to call the members together for a meeting since he
was the assistant shop steward. The meeting took place at about 9 a.m.
that morning; all the union members were present, as were Rattner and
Frank. Rattner said that she wasn't running a nursery and that she was
not harassing them, that harassment meant either profanities or physical
contact. She said that they had to wear safety shoes at work and that
she expected an honest day's work from the employees and that is why she
was critical of them. Meyers asked a question, which Cerezo could not
recollect, and Cerezo asked her how were the employees supposed to
change into the safety shoes when she removed their locker room. Rattner
then told the employees that whoever wanted to work should return to
their work stations because the meeting was over. Because the meeting
took 15 minutes, they would not get a coffeebreak that morning. Cerezo
returned to work and Rattner told him that he should follow her into the
stockroom where the cans of paint are stored. She pointed to a batch of
5-gallon paint cans each weighing about 50 to 70 pounds and told Cerezo
to bring her the cans. Cerezo said that he didn't have a handtruck, and
Rattner said that he should carry it by hand, which he did. At that
point she told him to put it back. When he questioned her about it, she
said: ``If you want to work for me, you do as you're told.'' An employee
who was nearby said that she was harassing Cerezo, and she denied it and
said: ``Get out, go march in the snow one more time for another month or
so.'' Cerezo prepared to go down the stairs and she told him that was
not the way to go. When he continued, without arguing with her, she
grabbed and pulled on his jacket. Cerezo testified that as he was
preparing to leave, he saw Rattner stop employee Juan Gonzales and ask
him: ``Are you staying with me or are you with the Union?'' Gonzales
answered that he was a union member and was going with the Union.
Rattner then stopped another employee whose name is uncertain in the
record. She put her hand on his chest and asked if he was staying. He
said that he was not crazy, that he was going.
    Bruno testified that on the morning of February 1, 1994, Rattner
spoke to all the employees and said that telling the employees to work
fast is not harassment. A few minutes later, Cerezo made an announcement
in Spanish over the intercom. He asked a Spanish-speaking employee to
translate and was told that Cerezo said that they should return to the
second floor. When he got there, Cerezo told him that Rattner kicked
them out of the plant and they had to leave, so he did.
    Meyers testified that on the morning of February 1, 1994, he began
working on the third floor of the facility, but Rattner instructed Frank
to assign him to a job on the second floor. At about 9 a.m., Rattner had
a meeting of all the employees and told them that she was not running a
nursery; that the employees were there to work, and if they didn't want
to work they should get out. Meyers and Aponte said that she was
harassing the employees and she said that harassment is using
profanities of attacking somebody. Rattner also told them that they
couldn't work unless they wore the proper workshoes, and Cerezo said
that they had no place to change into the shoes. Rattner said that she
was putting Cerezo in charge of employees' work clothes and shoes and
that they should change in the bathroom, which they had not done
previously. Rattner then told Cerezo to come to the shipping department
and to move 2- and 5-gallon cans of paint. Normally they move them with
a handtruck, but there was no handtruck, so she told him and Karras to
go downstairs to get a handtruck. As he was coming back upstairs, he
heard Cerezo on the intercom telling the employees to return to the
second floor. When he got there, Cerezo told him that Rattner was
harassing him. Rattner told the employees that If they were not there to
work, to get out, and if they didn't leave, she would call the police.
Meyers went upstairs to get his coat and Rattner asked him where he was
going. When he responded, she had Frank follow him. He got his coat and
left with the other employees.
    Aponte testified that on February 1, when he returned to work, he
went to the machine that he had operated prior to December 22, the
labeling machine. A few minutes later, Rattner came by screaming that
she didn't want him working on that machine, she wanted him to put
``labels on quarts,'' a job that he had not previously performed. She
stood over him for about 5 or 10 minutes, saying that she wanted him to
label them ``right now.'' He said that he would do them, but could not
do them all at the same time. Rattner then asked Frank where Meyers and
Cerezo were; Frank said that he gave them an assignment, and Rattner
said: ``You're not to assign them anything. I'm going to assign them
work.'' Aponte continued working until the meeting was called where
Rattner spoke to the employees. At this meeting Rattner defined
harassment as using foul language or hitting an employee. Aponte was
translating what she said to a Spanish-speaking employee and Rattner
told Aponte to shut up. He said to her: ``You're talking about
harassment and you're screaming at me to shut up.'' She said: ``Just
shut up,'' and he did. Cerezo asked where the employees could change,
and she said that she was putting him (Cerezo) in charge of everybody
getting changed in the bathroom. Cerezo told her that the bathroom was
too small. At the conclusion of the meeting Aponte returned to his
labeling machine. Later that morning he saw Rattner telling Cerezo to
get ``a five'' can of paint. He saw Cerezo carrying it on his shoulder,
whereas they usually transported these cans by handtruck as they weigh
40 or 50 pounds. He then saw Rattner directing Cerezo to return the can
to where it had been previously. Cerezo did it, as ordered and waved to
Aponte to come to him. When he got there, Cerezo said: ``She's making me
carry the fives from one place to another and back.'' Aponte then said
to Rattner: ``I thought you said that you were not going to harass us?''
Rattner responded: ``If you want to work here, you'll do as I say.''
Aponte said that they would do what she said, ``but not that way.''
Rattner then said: ``If you're going to work with me, you work with me.
If not, get out.'' Aponte asked: ``What do you mean, get out?'' Rattner
screamed: ``Just get out. Get out of my factory.'' Aponte asked: ``Are
you throwing us out again?'' Rattner said, ``Just get out.'' He said
that he wanted to get his clothes and change, and she said that he
should just get his clothes and leave. As he was preparing to leave, he
saw Rattner pull on the coat of employee Fernando Ramos and she was
saying to all the employees that they should get out. As they employees
were leaving, she said: ``Why don't you go outside and walk a little
more in the snow. Maybe that month wasn't enough for you.'' He later
returned to work on about March 7, 1994, and left Respondent's employ on
June 28, 1994.
    Rattner testified that she had no advance knowledge that the
employees were going to report for work on February 1, 1994. Frank
called her at about 7:30 that morning to tell her that the employees
were standing outside and were told to report for work. Rattner told him
to let them in, which he did. She arrived at the plant at about 8 a.m.
and ``immediately went to the working areas and tried to assign, help
assign people to different jobs.'' This was a difficult task because the
employees had been out for 2 months, she had no time to prepare for
their return, and Murray was no longer working for her. Because of the
difficulties caused by the strike, the storage of materials needed a
major reorganization and she told Meyers and Cerezo to follow her to
reorganize this storage system. Without any direction from her, Cerezo
got on the intercom and told the employees to come to a meeting. When
she saw the employees assembled, she decided that she might as well
speak to them. Employees were shouting about harassment, and she told
the employees that if she tells them to do something they must follow
her orders. She told them that they were starting a ``new chapter,'' and
that it would initially be difficult because she did not have a chance
to plan for their return to work. At the conclusion of this meeting she
returned to assigning Meyers and Cerezo to the reorganization of the
storage system. She initially directed them to separate the inventory
into two categories; the ``specials'' that were produced for certain
customers, and the regular stock that Respondent carried. She never told
them that they could not use handtrucks to perform this work. In fact,
Meyers asked if he could get a handtruck and she told him that he could.
Cerezo began arguing with her, picked up a 5-gallon can of paint and
dropped it by her feet. Cerezo then shouted something and took the
intercom again. Rattner took it out of his hand and he yelled that it
was harassment, ``we can't work like this, you are not letting us
work.'' Rattner explained what needed to be done and the employees
started walking out. She tried to talk some of them into staying at
work, but the others said: ``Let's go, let's go.'' As the employees were
leaving, she saw that Meyers was going upstairs. She followed him
upstairs to see why he was there, and Meyers picked up an item of
clothing, turned around, yelled an obscenity at her, and left. She never
pulled at Cerezo's jacket and never told the employees to get out: ``No,
I tried to keep some of them there.''

        iv. analysis

    There are major credibility determinations that must be made here.
As may be evident from the recitation of the facts, I was not impressed
with the credibility or attitude of Rattner. The change from her
responses as a 611(c) witness to her responses as a witness for
Respondent a month later can best be described as miraculous. Whereas
she had earlier been extremely hostile with a difficulty remembering
events that occurred between 6 months to a year earlier, her subsequent
testimony revealed a memory adept at recollecting events of her
childhood. In addition to observing Rattner on the witness stand, I
observed her actions as well during the testimony of the General
Counsel's witnesses. Rather than sitting with her counsel, she sat in a
chair closest to the witnesses and appeared to be ``staring them down''
during their testimony. Neither the witnesses nor the General Counsel
complained about this, and it did not appear to affect the witnesses'
testimony, so I did nothing to stop it. This attitude however correlated
with her 611(c) testimony and the testimony of the General Counsel's
witnesses that depicted her as an Employer who was constantly harassing
them and who seemed intent on doing whatever she could to stymie, and
ultimately get rid of, the Union. The most important witness for the
General Counsel here was Murray. There is a tendency to look very
carefully at testimony given on behalf of the General Counsel by former
agents of Respondent. Very often, they are angry at their former
employer and are looking for a way to get even. This does not appear to
be the case with Murray. All that Respondent could establish about him
was that Rattner had refused to lend him some money shortly prior to his
leaving its employ, and that Cerezo had lent him some money. On the
other hand, unlike Rattner, he appeared to be testifying in an honest
and truthful manner. For example, as regards the events of December 22,
he testified that the production needs at the facility would be reduced
the following week and that even with some employees being required to
perform the inventory, layoffs would probably be needed. With no
difficulty, I credit the testimony of Murray over that of Rattner.
    On the first day of hearing here, the General Counsel moved to amend
the complaint to substitute Local 406 for the Union on the ground that
the Union was merged into Local 406. Counsel for Respondent objected
and, in his brief, alleges that this proposed merger was not performed
properly by the Union because written notice of the proposed merger was
not given to Respondent's employees, and there was no evidence that the
merger was approved by a secret-ballot election. The evidence
establishes that a regular membership meeting was held in February
solely for Respondent's employees, and all attended. At this meeting
Adams spoke of the possible merger into Local 406 and that the election
would take place on March 8, 1994. Notification of this merger election
was given to all shop stewards and those present at prior meetings, as
well as being mailed to all employers under contract, except Respondent,
presumably because its employees were then on strike and had not been at
the facility since December 22. Of the Union's 110 members, only about 7
attended the March 8, 1994 meeting (only 3 employed by Respondent) and
those present voted unanimously (apparently not by secret ballot) to
approve the merger.
    The Board has traditionally required that two conditions be met
before it will allow one union to be substituted for another. First, the
Board requires that the vote process occur under circumstances
satisfying minimum due process standards and, second, that there be a
substantial continuity between the pre- and postaffiliation bargaining
representative. Hammond Publishers, 286 NLRB 49 (1987). As the burden of
establishing that the merger was performed improperly rests with the
Respondent, and as the Respondent does not contest the second part of
this test, the only issue to be discussed is whether the vote and
prevote notification satisfied minimum due process standards. Insulfab
Plastics, 274 NLRB 817 (1985). Respondent objects that the employees
never received written notice of the proposed merger. Although the Union
could certainly have done more here, all Respondent's employees attended
a meeting in February at which they were told of the merger election to
be conducted the following month. In addition, shop stewards were given
notices of the upcoming election. The Union cannot be faulted for
failing to post a notice of the March 8 election at the facility, as the
employees had been away from the facility for some time and it seemed
highly unlikely that Rattner would have posted, or distributed, such a
notice to the employees. Additionally, none of the unit employees were
at the facility to see the notice. The Union did all that the Board or
courts would require it to do. Bear Archery, 223 NLRB 1169 (1976).
    Respondent's remaining objection to the merger is that it was not
conducted by secret ballot. The merger election was conducted on March
8, 1994, apparently not by secret ballot. Only about seven members
appeared and voted and the motion passed unanimously. In United States
Steel Corp., 185 NLRB 669 (1970), the vote on affiliation was taken by
the distribution of ballots that were to be marked anywhere in the room
and then were to be placed in a ballot box. Testimony established that
persons could, and did, see how others voted. The Board dismissed
objections to this vote and amended the union's certification:

        While the actual voting procedures did not follow the format
        employed in Board-conducted elections, it is evident that
        inexperience in conducting votes of this nature (elections of
        officers have been by mail ballot) contributed to the lack of
        some safeguards. However, there was no challenge at the time of
        the election or, thereafter until the hearing of the procedures
        used . . . and there is no evidence of manipulation in the
        distribution of the ballots, or of coercion in the voting.

       The court, at 457 F.2d 660 at 666 (3d Cir. 1972), disagreed
       because the voting procedure did not comport with the procedure
       employed by the Board or the Department of Labor and refused
       to enforce the Board's Order. In State Bank of India, 262 NLRB
       1108 (1982), the Board, in finding that an attempted merger
       was invalid because it failed to adhere to minimum standards of
       due process in ascertaining whether the employees were in
       favor of the merger, relied on the following factors:

        (1) the distribution of the notice announcing the December 2,
        1980 meeting at which the vote on the merger agreement was to be
        taken was not completed until shortly before the meeting was to
        take place and therefore was untimely; (2) the notice of the
        December 2 meeting failed to announce that a vote on the merger
        agreement would take place; (3) the individuals attending the
        December 2 meeting did not have access to copies of the merger
        agreement; (4) no record was kept of the identity of the
        individuals attending the December 2 meeting; and (5) in light
        of the above, the voting procedure--including the lack of a
        secret ballot--employed at the December 2 meeting was improper.
        [Emphasis added.]

       Toyota of Berkeley, 306 NLRB 893 at 899 (1992), states that the
       Board requires that the voting procedure satisfies minimum due
       process standards, ``and no specific procedures are
       mandated.'' In Insulfab, supra at 823, the administrative law
       judge stated:

        The Union was under no obligation arising out of statute or
        regulation to conduct its affiliation vote in a manner deemed
        suitable by the Respondent. The fact that it did not act in
        strict conformity with the procedures required for a
        representation election and chose instead to conduct its
        business more informally in accordance with the traditions of
        New England town meeting democracy is no basis for post hoc
        faultfinding.

       In the instant matter, the Union's entire membership in
       March 1994 numbered about 110. The Union's president had been
       disabled since about mid-1993. Adams ran the Union, without a
       working typewriter or fax machine. Although a show of
       hands might seem somewhat crude in hindsight, considering the
       size and operation of the Union, I can see nothing improper in
       it. Only about seven members showed up at the meeting and the
       vote was unanimous. I find that in light of the facts here, the
       merger election satisfied minimum due process standards,
       and the General Counsel's motion to amend the complaint to
       substitute Local 406 for the Union is granted.
  

  Under Wright Line, 251 NLRB 1083 (1980), the General Counsel has the
initial burden of establishing a prima facie showing to support the
inference that the employee's protected conduct was a ``motivating
factor'' in the employer's decision. If the General Counsel satisfies
this burden, the burden then shifts to the respondent to establish that
the same action would have taken place even absent the protected
conduct.
    The initial allegations relate to the grievance meeting held at the
facility on June 16. It is alleged that Meyers and Cerezo, the shop
steward and assistant shop steward for the Union at the facility, were
prohibited from attending this meeting (as well as the September 22
grievance meeting) in violation of Section 8(a)(1) and (5) of the Act.
The issue, therefore, is whether this was a unilateral change in
practice on the part of Respondent. Adams testified that she could not
remember how often she had previously been at the facility, but, on
those occasions, she was there with the then union president. Murray
testified that, in the past, the shop committee was allowed to attend
grievance meetings. Meyers, who had been the shop steward at the
facility for 3 or 4 years, testified however that he had never
previously attended a grievance meeting. Although I have already found
Murray to be a credible and believable witness, since this was a subject
that Meyers would be more familiar with, I credit his testimony as also
testified to by Adams, and find that the union representatives had not
attended these grievance meetings in the past. I therefore find that by
barring Meyers and Cerezo from attending the meeting during working time
on June 16 and September 22, Respondent did not unilaterally change the
working conditions at the facility and recommend that this allegation be
dismissed. Meyers and Cerezo each received a written warning for
attempting to attend the June 16 grievance meeting. Although the
testimony differs, it appears that Meyers and Cerezo were either in, or
adjacent to, the room where the grievance meeting was to take place for
a very short time, and left and returned to work when they were told to
do so. Considering Respondent's union animus here, and the fact that
Meyers and Cerezo missed little work due to the incident, I find that
the warnings they were given on June 16 were in retaliation for their
support for, and positions with, the Union. I therefore find that these
warnings violate Section 8(a)(1) and (3) of the Act.
    It is next alleged that Respondent violated Section 8(a)(1) and (5)
of the Act by placing Bermas in these grievance meetings without giving
him the proper authority to act to settle, or bargain about, these
grievances. Adams and Mundo testified that Bermas told them that he had
no authority to make any decisions, that all had to be made by Rattner.
In fact, whenever grievances were discussed, he left the meeting to
discuss them with Rattner. Bermas testified that as Rattner's attorney,
any agreement he reached with the Union was subject to her approval. In
addition, he differentiated between subjects that he was aware of prior
to the meeting, and those that he was not aware of. As to the former, he
knew how far that he could go without Rattner's approval. As to the
latter, he had to go to Rattner for approval of any agreement. I found
Mundo to be a credible witness attempting as best he could to testify
truthfully about events that occurred a year ago. As stated above, I
also found Adams to be a credible, though confusing, witness. Although
Bermas appeared to be testifying in an honest and truthful manner, as
there is a clear conflict between his testimony and that of Mundo and
Adams, I credit Mundo and Adams, principally because I find that Rattner
would not give her negotiator the necessary authority to enter
agreements with the Union about the grievances. National Amusements, 155
NLRB 1200 at 1206 (1965), states:

        Respondent's duty to bargain included the obligation to appoint
        a negotiator with real authority to negotiate and a willingness
        to meet at reasonable times and places. The law requires an
        employer to apply himself to collective bargaining sessions with
        the same degree of diligence and promptness as he does in his
        other important business interests, and his reluctance or
        apparent disinterest in this area or his failure to appoint an
        agent to negotiate fundamental issues is evidence of lack of
        good faith in the bargaining process.

       In Carpenters Local 1780, 244
       NLRB 277 at 281 (1979), the
       Board stated: ``While Respondent
       is not required to be
       represented by an individual
       with final authority to enter
      into an agreement, this
       privilege is subject to the
       proviso that such limitation
       does not act to inhibit the
       progress of negotiations.''
       Although these cases speak of
       negotiations rather than
       grievance meetings, as is
       present here, the rule is the
       same as good-faith collective
       bargaining extends to grievance
                  discussions. It is a waste of
       time for both sides, if the
       parties meet to attempt to
       resolve grievances, but the
                  representative of one side has
       no authority to do so. Because I
       find that the failure to give
       her representative the authority
       to properly act at grievance
       meetings is consistent with
       Rattner's general attitude here,
       I credit Adams and Mundo and
       find that Respondent violated
       Section 8(a)(1) and (5) of the
       Act.
    It is next alleged that Respondent discharged Arias on about July 7
and did not reinstate him until on about July 16, and discharged him
again on about August 27 and did not reinstate him until about July 18,
1994, in order to prevent him from becoming a member of the Union
pursuant to the union-security clause of its contract with the Union in
violation of the Act. Although the record is unclear whether Arias
worked continuously between about June 4 and August 27, or whether he
was discharged on about July 7, was rehired about 10 days later, and was
finally terminated on about August 27, I credit the testimony of Murray
that Arias was fired on about August 27 to prevent him from becoming a
member of the Union. This finding is supported by the lack of any other
reason for his termination; there was no evidence that he was anything
other than a good employee, as Murray testified, and he generally worked
full 40-hour weeks during the period of his employ. I therefore find
that by discharging Arias on about August 27, Respondent violated
Section 8(a)(1) and (3) of the Act. There is a similar allegation
regarding Sossinski. It is alleged that in about October or November,
Respondent discharged Sossinski to prevent him from becoming a member of
the Union. The testimony establishes that at a meeting on November 17,
the Union informed Murray that Sossinski had in excess of 60 days of
employment with Respondent (he had been employed for 30 days in July and
August, and was rehired on October 4) and that he therefore had to
become a member of the Union. When Murray informed Rattner of this
situation, she directed him to fire Sossinski to prevent him from
joining the Union, which he did on November 19. The timing was right,
there is no lack of animus, and Respondent presented no defense to this
discharge, other than Rattner's unsupported testimony that he was fired
because he did not produce the required I-9 documentation. I find that
this discharge on November 19 violates Section 8(a)(1) and (3) of the
Act.
    The next allegation is that Respondent imposed less desirable and
more onerous working conditions on Meyers, by assigning him to clean the
fourth floor bathroom at the facility in about June or July, and the
first floor bathroom during the week of October 25, and by assigning him
to work overtime in about October. As stated above, Meyers had been
employed at the facility for 10 years and had been the shop steward at
the facility for 3 or 4 years. Meyers testified that he was given this
bathroom assignment in about June after he accompanied an OSHA agent to
inspect the facility on the basis of a complaint that had been filed
with OSHA. When he returned, Murray told him that he had to clean the
fourth floor bathroom at the facility. In his 10 years of employment
with Respondent, he had never previously performed this work, and the
employee who did it was still employed. Murray testified that Meyers had
filed grievances about the condition of the bathrooms, and Rattner told
him to assign Meyers to clean it to solve the grievance. The difference
between their testimony is not surprising as a year had passed since the
incident occurred, and Meyers and Murray could have confused a grievance
with an OSHA inspection. Further, Respondent presented no evidence to
establish why Meyers was given this assignment. I find that the evidence
establishes that Meyers was given the assignment in retaliation for his
union activities in violation of Section 8(a)(1) and (3) of the Act. As
the evidence establishes that Meyers continued to clean the bathroom
until December 22, I find it unnecessary to determine whether he was
unlawfully assigned to clean a different bathroom in October. In
October, Meyers had some grievances in his hand preparing to give them
to Murray or Rattner. When he met Rattner at about 4:15 p.m., she asked
what he had in his hand and he said that they were grievances that he
was going to give to her. She told him to wait until after work, which
he did, and gave them to Murray about 5 minutes later. A few minutes
later Murray told him that he had to work overtime that day. The
overtime was mandatory and he had not previously been assigned to
overtime work. Murray testified that he knew that Meyers did not like
overtime work and he assigned this work to Meyers, on orders from
Rattner, because Meyers had filed the grievances as the shop steward. As
Meyers was ordered to perform the overtime work in retaliation for his
filing grievances as the union shop steward, this also violates Section
8(a)(1) and (3) of the Act.
    It is next alleged that in June or July Respondent suspended Aponte
for 3 days without pay, in about July, issued Aponte a written warning
and transferred him from his position in its batch making department to
its paint filling department, issued him a written warning on about
October 5, and on about October 25 suspended him for 3 days without pay
and assigned him to clean the second floor bathroom at the facility.
Aponte received a written warning dated June 23 stating: ``Employee has
been warned numerous times . . . concerning not wearing proper safety
equipment--Employee is now being suspended for three days.'' Murray
testified that Aponte was given this warning because Respondent wanted
to make an example of him because of his union activities; however, he
was not present at the time that Aponte was allegedly not wearing his
goggles on June 23. Additionally, Murray also testified that Aponte did
not become a part of the union committee until July or August, and there
is no evidence of any earlier union activities on the part of Aponte.
The convincing evidence fails to establish any union activity on
Aponte's part until after this warning. Considering Aponte's prior
warnings and the lack of proof that it was his union activities that
caused this June 23 warning (it may have been that Rattner just didn't
like Aponte, as Murray testified), I recommend that this allegation be
dismissed. I would also recommend that the allegations regarding the
warning that he received on July 21, and the subsequent transfer to the
paint filling department be dismissed. As stated above, Aponte had
received other prior warnings and there is a lack of convincing evidence
of union activities on his part at that time. Although there is
substantial evidence of animus on the part of Respondent, that does not
mean that all discipline that it metes out violates the Act. That is
especially so in this situation, where the boss sees an employee at his
work station with a union sign. It was not unreasonable to assume that
he made it during his working time.
    Aponte received written warning on October 5 for ``not working'' and
``conduct'' and a warning on October 25 for ``disobedience'' stating:
``As a result of numerous warnings, verbal and written, concerning not
working as assigned, and conversing instead of working, employee is
suspended for three days.'' In addition, on about October 25 he was
assigned to clean the second floor bathroom. By this time, Aponte's
position with the union committee was known to Respondent. In addition,
unlike the prior warnings, Rattner's contemporaneous comments to Aponte
connect the warnings to his union activities. When she told Aponte about
the October 5 warning, she told him to tell the Union about it. I
therefore find that this warning violates Section 8(a)(1) and (3) of the
Act. As there is no direct evidence that this October 25 warning and
suspension were caused by his union position and activities (and Rattner
was not very circumspect in her feelings toward the Union and its
supporters) I would recommend that this allegation be dismissed.
Although there is also no direct evidence connecting the bathroom
cleaning assignment to his union activities, there are two factors that
convince me that it was in retaliation for his union activities. His
union activities were now known to Respondent, and he and Meyers had
never previously been assigned to clean the bathroom at the facility.
Two union committeemen receiving assignments to clean bathrooms is too
much to be considered a coincidence. I therefore find that this
assignment violated Section 8(a)(1) and (3) of the Act.
    The next allegations to be discussed involved alleged violations of
Section 8(a)(1) and (5) of the Act. It is alleged that on about October
15, Respondent changed the frequency for which its employees were paid
from weekly to biweekly. On October 15, Respondent notified its
employees that beginning the following week, they would no longer be
paid weekly; rather, they would be paid every other week. There was no
prior negotiation or notification to the Union. This biweekly pay system
lasted through December. The frequency that employees are paid is a
mandatory subject of bargaining. King Radio Corp., 166 NLRB 649, 654
(1967); Sommerville Mills, 308 NLRB 425 at 439 (1992). Respondent made
this change without first contacting, or bargaining with, the Union. It
therefore violated Section 8(a)(1) and (5) of the Act.
    The next allegation in this category is that on about October 26,
November 17, and December 1, Respondent denied the Union access to the
facility, even though the contract between the parties provides for such
access in violation of Section 8(a)(1) and (5) of the Act. Article 23 of
the contract provides:

        A duly authorized representative of the Union shall be permitted
        access to the factory of the Employer upon condition that he
        shall before entering the factory, make application therefor to
        the Employer, and upon further condition that he shall not
        during such visits interfere with production in the factory.

The uncontradicted testimony of Adams and Murray is that prior
to October there were no restrictions on the right of the
Union to visit the facility.
       They just showed up and walked in. In about October, Rattner
told Murray that she interpreted the contract to mean that the
Union had to make prior application to visit the
facility, and if the Union ``was holding us to the contract,
we're going to hold them to the contract.'' Actually, she did
more than that, she refused to allow the Union to visit the
facility on about October 27, November 29, and December 1.
Mundo testified that one reason for the Union's request to visit
the facility was to determine whether to file exceptions to OSHA's findings at the facility.
By unilaterally changing the practice allowing the Union to
visit the facility, as set forth in its contract, Respondent
violated Section 8(a)(1) and (5)of the Act. Harvey's Wagon
       Wheel, 236 NLRB 1670 (1978);
15th Avenue Iron Works, 301 NLRB 878 (1991).
    The next allegations allege that Respondent refused to provide
certain information to the Union in violation of Section 8(a)(1) and (5)
of the Act. These information requests cover three different areas; by
requests on November 29 and December 15, the Union requested information
on the cost and type of medical insurance coverage provided by
Respondent, information allegedly needed for the contract reopener on
that subject; by request of December 1 and 15, the Union requested a
list of all current employees, job titles, and hourly pay, which was
needed to investigate whether all employees were joining the Union after
60 days of employment, as required by the contract; and on December 1
and 15 the Union requested that the Respondent furnish it with its books
and records to substantiate its alleged inability to afford a wage
increase in the wage reopener negotiations. The law is clear that an
employer must provide a union with requested information where there is
a probability that the information would be relevant to the union in
fulfilling its statutory duties as the bargaining representative of the
employer's employees. When the requested information concerns wage
rates, job descriptions, and other information pertaining to employees
within the bargaining unit, the information is presumptively relevant.
Where the information does not concern matters pertaining to the
bargaining unit, the union must show that the information is relevant.
NLRB v. Acme Industrial Co., 385 U.S. 432 (1967); Trustees of the
Masonic Hall, 261 NLRB 436 (1982). The contract contained a clause
allowing the Union or Respondent to reopen the contract on December 1 on
the subjects of wages and medical coverage, and the Union properly
exercised this right to reopen. There can be no question that the Union
was entitled to the medical insurance information requested in its
November 29 letter. This information was necessary for the Union to
intelligently negotiate about this subject. I cannot understand the
testimony of Bermas, an otherwise articulate witness, that because the
Union had made no information request a year earlier when the Respondent
reduced medical benefits, he ``just didn't see why any cost information
was appropriate'' in 1993. I therefore find that Respondent's failure to
provide the Union with the medical coverage information requested on
November 29 violated Section 8(a)(1) and (5) of the Act.
    On December 1, the Union requested that Respondent provide it with a
list of all current employees, their job titles, and salaries. The list
that Respondent provided gave only the union members with their
salaries. That, obviously, missed the point. The Union suspected that
Respondent was employing people at the facility who should have been in
the Union, but were not. These suspicions were not without substance; 2
weeks earlier, when the Union told Murray that Sossinski had been
employed long enough to be in the Union, Murray said that if that were
true he would be terminated. A list of all employees (not union members)
employed at the facility was clearly relevant to the Union in
determining whether the union-security clause of the contract was being
followed. By refusing to provide the Union with this information, the
Respondent violated Section 8(a)(1) and (5) of the Act. Duquesne Light
Co., 306 NLRB 1042 (1992). The final allegation in this area is that
Respondent refused to turn over its books and records to the Union after
claiming that Respondent could not afford to pay an increase to its
employees. When an employer alleges an inability to pay as a defense
against a proposed wage increase, it must substantiate that claim if the
union demands to see its books and records. NLRB v. Truitt Mfg. Co., 351
U.S. 149 (1956). As the Union requested this information at the meetings
on December 1 and 15, and Respondent never provided it with the
information, the only issue is whether Respondent, at these meetings,
said that it could not afford a wage increase. I found Bermas' testimony
very convincing on this subject. As stated above, I found him to be a
very articulate and sometimes convincing witness. He testified that he
knew enough about labor law to understand the difference between saying
that you could not afford an increase (where you have to turn over your
books and records) and saying that you could not do it for competitive
reasons (without the need to turn over the books and records), and that
makes sense. I do not credit Mundo's testimony that at the December 1
meeting Bermas, on three occasions, stated that Respondent could not
afford a wage increase. While Bermas may not have been an expert in the
field of labor law, he was clearly not so stupid and gullible as to
respond as Mundo testified that he did. I therefore find that Respondent
never alleged an inability to pay at the December 1 and 15 meetings, and
therefore was not under an obligation to turn over its books and records
to the Union. I therefore recommend that this allegation be dismissed.
    Finally, the complaint alleges that since about June 1 Respondent
has failed to remit to the Union all dues and initiation fees which it
deducted from its employees wages in violation of Section 8(a)(1) and
(5) of the Act. There was no evidence to support this allegation. In
fact, the only evidence adduced on this subject was that the Union did
not possess checkoff authorization forms from its members. In addition,
the General Counsel's brief does not address this issue, and I recommend
that this allegation be dismissed.
    The remaining allegations relate to the events of December 22 and
the subsequent events. It is alleged that on that day the Respondent
discharged all the unit employees at the facility (with the exception of
the six who were told to report for work on December 27) because they
engaged in concerted activities of demanding the full 2 weeks' pay owed
to them. Respondent defends that the following week was historically a
slow week warranting large layoffs, and that was the reason that they
were told not to come in until further notice. The employees' testimony
on this subject was especially credible. Cerezo, who had been employed
by Respondent for 17 years, testified that, in the past, employees'
workweeks were cut to 32 hours, but it was usually done by seniority and
the employees were given 2 days' notice of the change. Aponte, who had
been employed at the facility for 7 years, testified that he was laid
off in the past, but he was notified days in advance of the layoff and
was given the option of using vacation days or sick leave during the
layoff. Bruno testified that 3 or 4 years earlier there had been a
layoff without any advance warning, but because of his seniority (17
years at the facility) he was not laid off. Murray also testified that,
in the past, employees were given advance warning of layoffs and were
given an opportunity to use vacation time or sick leave during that
period. I find that the overwhelming credible evidence establishes that
these employees were told not to return to work on December 27 because
of their protected activities on December 22. We start with the
incredible amount of union animus displayed by Rattner over the prior 6
months. Additionally, the employees were not told of the layoff until
about 6 p.m. that day, after they had concertedly protested the fact
that they were not paid in full; until that time, Murray had not been
told of the layoff. Further proof that this was discriminatorily
motivated is that the employees were not given an opportunity to use
sick leave and vacation leave during this period, and that the layoffs
were not chosen by seniority or superseniority, as provided by the
contract. Murray testified credibly that work would be slow the
following week and that even with some additional employees needed for
the inventory, some layoffs would be required. I find however that the
number of those being laid off and Rattner's choices for layoff were
selected discrim- inatorily, and that the layoff of these employees on
December 22 violated Section 8(a)(1) and (3) of the Act. The fact that
some layoffs would have occurred regardless is a factor to be considered
in the supplemental hearing here.
    Bruno was originally one of the six employees chosen by Rattner to
work the following week. It is alleged that because he protested the
amount of his check and vacation pay, Rattner changed her mind and said
that he could not work the following week. Bruno and Murray testified to
that effect; Rattner testified that she smelled liquor on his breath and
decided that it was not a good idea to bring him back. Although it is
true that Mercado questioned Rattner about his vacation pay before
Bruno, without retribution, it appears from Murray's credible testimony
that Bruno was more persistent, which may explain Rattner's reaction. I
therefore find that Rattner laid him off on December 22 because of his
protected concerted activities in violation of Section 8(a)(1) of the
Act.
    It is next alleged that on December 27, Respondent discharged the
six employees (less Bruno who was laid off after he protested his pay on
December 22) who were scheduled to work on December 27.\5\ The General
Counsel's brief alleges that ``it should be found that Respondent
discharged these six employees on January 3, when it stopped asking for
any employees to report for work, for their concerted activities.''
Rather, the evidence establishes that, by letter dated December 30,
Respondent requested that the six employees (less Bruno and plus four
others, nine in total) report for work on Monday, January 3, 1994. The
evidence further establishes that the employees banded together,
agreeing that none would work unless they all worked, and that was the
reason that these six employees did not work. They were never terminated
by Respondent. I therefore recommend that this allegation be dismissed.
---------------------------------------------------------------------------
    \5\The record is unclear who, other than Bruno, these six employees
are. In addition, the complaint and the General Counsel's brief are not
always consistent on this subject. I therefore leave this determination
to the supplemental hearing.
---------------------------------------------------------------------------
    Beginning on about January 3, 1994, the Union established a picket
line at the facility. The complaint alleges that from December 27 to
about February 1, 1994, these employees ceased work concertedly and
engaged in a strike that was caused by Respondent's unfair labor
practices. The complaint further alleges that by oral communication and
letter of its attorney on February 11 and 12, the Union made an
unconditional offer for the employees to return to work.
    In Typoservice Corp., 203 NLRB 1180 (1973), the Board stated: ``An
unfair labor practice strike does not result merely because the strike
follows the unfair labor practice. A causal connection between the two
events must be established.'' National Fresh Fruit & Vegetable Co., 227
NLRB 2014 at 2017 (1977), stated: ``It is well established by Board and
court precedent that a strike is an unfair labor practice strike if only
one cause, even if not the primary cause, was the employer's unfair
labor practice, notwithstanding the presence of economic issues.'' Tufts
Bros., Inc., 235 NLRB 808 at 810 (1978), stated:

  An unfair labor practice strike is one which is caused in whole
  or in part by an unfair labor practice. The requirement of a
  causal connection between the unfair labor practice and the
  strike is not satisfied merely because the two coincide in time.
  It is necessary for the Board to find that Respondent's unlawful
  conduct in fact constituted a contributing cause to the strike
  that followed.

The connection between the strike and the unfair labor practices here is unmistakable. It is unnecessary to discuss Respondent's pre-December 22 unfair labor practices because the unfair labor practices of that day was the immediate cause of the strike. The evidence is lear that the employees concertedly engaged in the work stoppage beginning on December
27 because Respondent had unlawfully laid off all but six of the employees. Protesting that none will work unless all work is a layman's way of protesting a layoff (found unlawful). I therefore find that commencing December 27, employees of Respondent engaged in a strike protesting Respondent's unfair labor practices.
Mundo's letter to Respondent of January 12, 1994, states that ``the employees will return to work provided that all employees are allowed to return to work,'' that the Employer will not take any action against any employee regarding the events of December 22, and the Union and the employees reserved their rights to take any action before the courts, the Board, or the grievance machinery of the contract: ``The return to work of any employee is not deemed a waiver of any such rights.'' Respondent denies that this was an unconditional offer to return to work. In his cross-examination of Mundo, counsel for Respondent stressed that Mundo's letter stated that all would return when, 10 days earlier, Richman had written that Respondent had work for nine named employees. In his brief, counsel for Respondent alleges that the letter was not an unconditional offer to return to work because it was an inaccurate recapitulation of his earlier conversations with Richman. The brief states:

        There was nothing in Mundo's conversation with Richman relating
        to the continuation or non-continuation of the NLRB charges.
        Respondent submits that Rattner did not want to inadvertently
        waive or concede rights that she might have had without first
        ascertaining what the paragraphs meant. In denying that the
        statements set forth in paragraphs 4, 5, 6, 7 and 8 were made,
        she did not reject an unconditional offer; she was just setting
        the record straight.

     Although it is not entirely clear from this statement, I
will assume that Respondent is alleging that the offer was not
an unconditional offer to return because it reserved the rights of the employees to take whatever legal action that was available to them and because it stated that all the employees would return.\6\

As regards the Union's reservation of its rights, clearly this does not
convert an otherwise unconditional offer into a conditional offer. These rights exist by statute, and the Union would have had these rights even if it were not so specified in
the letter. Additionally, if Rattner had specifically demanded that the employees give
up these rights in order to be reinstated, it would probably constitute a violation of the
Act.
---------------------------------------------------------------------------
    \6\Whereas Rattner's fax to Mundo dated January 12, 1994, states
that she never agreed to the statements contained in pars. 4, 5, 6, 7,
and 8 of his January 12, 1994 fax, it is par. 3 where Mundo states that
the employees will return provided that all are allowed to return.
Because par. 8 of Mundo's fax however simply states the name of the
union agent to contact if she has any questions, I assume that Rattner
misnumbered the paragraphs and was objecting to this provision in par.
3.
---------------------------------------------------------------------------
    More difficult is the question whether because the January 12, 1994
letter states that ``[t]he employees will return to work provided that
all employees are allowed to return to work'' converts this letter into
a conditional offer to return to work. I find that it does not. Because
they were engaged in an unfair labor practice strike and none of them
engaged in conduct so serious as to deprive them of reinstatement, all
the employees were entitled to reinstatement. Richmond Recording Corp.
v. NLRB, 836 F.2d 289 (7th Cir. 1987). If Respondent had a question as
to this portion of the offer to return, it should have advised Mundo and
sought clarification of his position. It did not do so, and I find that
this January 12, 1994 letter constituted an unconditional offer to
return to work. Woodlawn Hospital, 233 NLRB 782 (1977); Columbia
Portland Cement Co., 303 NLRB 880 (1991). I therefore find that backpay
begins to accumulate for all the employees, including the six who were
not laid off on December 22, on January 17, 1994, 5 days after this
unconditional offer to return. Drug Package Co., 228 NLRB 108 (1977).
    February 1, 1994, was a day in which many events occurred within a
short period of time at the facility. On that day, the employees
reported for work, for the first time since December 22. Under normal
circumstances this would have been a difficult time for Respondent with
about 18 employees reporting for work after being out for more than a
month, and with Murray, the plant manager, no longer employed at the
facility. It is alleged that Rattner's activities that morning made a
difficult situation chaotic. It is first alleged that on that day
Respondent required its employees at the facility to change into their
work clothes in the bathroom, contrary to prior procedure, in violation
of the Act. The evidence establishes that when Rattner spoke to the
employees on that day, she told them that they would have to change into
their work clothes (in the morning, and back into their street clothes
in the afternoon) in the bathroom at the facility. This was a change
from their past practice, and had not been previously discussed with the
Union. Rattner testified generally about changes in the areas that
Respondent rented and it may be that these changes resulted in the loss
of the employees' changing room. If that were so, Respondent could have
discussed it with the Union to work out alternative plans. Respondent
failed to do so. Although, at first glance, this may seem to be an
inconsequential matter, for the employees who have to change twice a
day, this affects their terms and conditions of employment. It is a
mandatory subject and, as Respondent introduced this change without
prior notice to, or bargaining with, the Union, it violates Section
8(a)(1) and (5) of the Act. It is also alleged that by assigning Cerezo
to be in charge of the employees' changing in the bathroom, Respondent
violated Section 8(a)(1) and (3) of the Act. Respondent never explained
why Cerezo (or any employee) was needed to be in charge of the
employees' changing in and out of their work clothes. Considering
Rattner's union animus throughout this period, and on February 1, 1994,
in particular, I find that it was done to punish Cerezo for his support
for the Union and his position with the Union. I therefore find that it
violates Section 8(a)(1) and (3) of the Act.
    The next allegation involves Rattner's assignment to Meyers and
Cerezo to move the heavy paint cans. As the employees had been away for
over a month, obviously, much was to be done before the facility would
be operating at full capacity. It is also obvious that in a situation
such as this, employees, initially, have to expect changes in
assignments, at least, until the facility is operating smoothly. That,
however, does not explain Rattner's assignment of Meyers and Cerezo to
separate the paint cans by regular stock and specials. Even if that were
a worthwhile cause, it seems more reasonable to get the facility
operating smoothly first, and then assign employees to move the cans.
The other unanswered question is why Rattner chose Meyers and Cerezo,
the union steward and assistant steward, from all its employees, to
perform this work. Considering the clear union animus here, I have no
difficulty in finding that they were chosen because of their union
positions. Although the evidence establishes that Rattner sent Meyers
and Karras to get a handtruck, before they returned, she assigned Cerezo
to carry a 50-pound can of paint without a handtruck for no apparent
reason, and I therefore find that these assignments violated Section
8(a)(1) and (3) of the Act.
    It is next alleged that Respondent violated the Act by subjecting
Meyers to closer than normal supervision and by following him. In this
regard, I found Rattner's testimony reasonable and logical. The
employees were leaving, and Meyers was going upstairs instead of
downstairs. With feelings inflamed, as they must have been, it was not
unreasonable for her to look to see where he was going. I therefore
recommend that this allegation be dismissed. It is further alleged that
Respondent violated the Act by requiring Meyers to put his clothes in a
locked room. As I find no evidence to support this allegation, I
recommend that it be dismissed. It is also alleged that during this
incident, Rattner interrogated an employee about his support for the
Union. Cerezo's credible evidence establishes that as the employees were
preparing to leave the facility, Rattner asked Gonzales: ``Are you
staying with me or are you with the Union?'' Gonzales said that he was a
union member and was leaving. Rossmore House, 269 NLRB 1176 (1984), and
Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), provide that in
interrogation situations such as this, the administrative law judge and
the Board must look at all the circumstances to determine whether the
interrogation was coercive and violated Section 8(a)(1) of the Act.
Facts to look at include the background and surrounding circumstances,
who was the questioner and who was questioned and whether he/she was an
active and open union supporter, and the place and method of
interrogation. In the instant situation, Rattner had displayed union
animus and committed numerous violations of the Act over the prior 8
months. She was the boss and had just ``fired'' all the employees for
the second time in about 5 weeks. Under these circumstances, the
interrogation reasonable tended to coerce Gonzales, and it therefore
violates Section 8(a)(1) of the Act. In this regard, it is also alleged
that Rattner pulled Cerezo by his jacket in violation of the Act.
Although I credit the testimony of Cerezo that during the final
encounter with Rattner on February 1, 1994, she pulled on his jacket, I
find that under the circumstances here that would not have a tendency to
coerce him, and I recommend that this allegation be dismissed.
    The final allegation here is that Rattner concluded the events and
workday of February 1, 1994, by directing its employees to leave the
facility and locked them out from that day until about March 8, 1994, in
violation of Section 8(a)(1), (3), and (5) of the Act. The credible
evidence supports this allegation. Rattner committed numerous violations
on and prior to December 22, resulting in an unfair labor practice
strike by her employees and they picketed the facility from about
January 3, 1994. As evidenced by her actions at the January 5, 1994
meeting, she was not pleasantly disposed toward the Union. When she was
called on February 1, 1994, and told that the employees had returned,
without advance warning, she was obviously more annoyed at the
employees, and showed it beginning about a half hour later when she
arrived at the facility. As found above, she committed numerous
violations in the short period that she was at the facility. As an
example, when Cerezo complained about being forced to carry a 50-pound
can of paint for no apparent reason, she responded that if you work for
her, you do as you are told. When Aponte claimed that she was harassing
them, she said that either the employees worked with her or they should
get out. When Aponte asked her what she meant, she said, ``Get out of my
factory.'' She also told the employees that they should spend some more
time walking in the snow, as they had before, and they left. Clearly,
the employees had done nothing to warrant being terminated, other than
supporting the Union and engaging in an unfair labor practice strike
from December 27 to February 1, 1994, and it was these activities and
her dislike for the Union which caused Rattner to direct her employees
to leave and to lock them out until about March 8, 1994, in violation of
Section 8(a)(1) and (3) of the Act. The complaint also alleges that
because the contract contains a no-strike, no-lockout clause, this
lockout violates Section 8(a)(1) and (5) as well, and I agree.
    At the hearing and in his brief, counsel for Respondent argues that
the issues here should be deferred to the contractual grievance
procedure under Collyer Insulated Wire, 192 NLRB 837 (1971), and United
Technologies Corp., 268 NLRB 557 (1984). The General Counsel defends in
two areas. One, that it is never appropriate to defer breach of access
and failure to provide information cases, which are included here and,
as regards the remainder of the case, because of the ``egregious
violations'' here, deferral would be inappropriate. The grievance
provision in the contract covers ``Any controversy, claim or dispute or
grievance of any nature whatsoever arising between the employer and the
Union or any employees.''
    In the long history of deferral cases, principally lead by Collyer,
supra, a number of factors had to be present in order for the Board to
defer its jurisdiction to the grievance-arbitration machinery of the
parties' contract: that the arbitration clause clearly encompassed the
dispute at hand, the employer was willing to utilize the arbitration
procedure to resolve the dispute, and the dispute arose within the
confines of a long and productive collective-bargaining relationship and
there was no claim of employer animosity to the employees' exercise of
protected rights. Put in another way, whether the employer's conduct
``constitutes a rejection of the principles of collective bargaining''
as was stated in the dissenting opinion in General American
Transportation, 228 NLRB 808 (1977). In United Aircraft Corp., 204 NLRB
879 (1973), the Board stated:

        We continue to believe that an exploration of the nature of the
        relationship between the parties is relevant to the question of
        whether in a particular case we ought or ought not defer
        contractually resolvable issues to the parties own machinery.
        Where the facts show a sufficient degree of hostility, either on
        the facts of the case at bar alone or in the light of prior
        unlawful conduct of which the immediate dispute may fairly be
        said to be simply a continuation, there is serious reason to
        question whether we ought defer to arbitration.

    The instant matter presents a classic situation of an employer who,
during the period in question, rejected the collective-bargaining
process. I have found, inter alia, that beginning in June, Rattner
appointed Bermas to represent Respondent in grievance meetings without
giving him the proper authority to act and disciplined the shop steward
and assistant shop steward for attempting to attend the June 16 meeting,
fired employees rather than let them join the Union as provided in the
union-security clause of its contract with the Union, discriminated
against its shop steward and assistant shop steward for their actions in
those capacities, refused to provide the Union with requested and
relevant information, and refused to provide the Union with access to
its facility. All these found violations illustrate a rejection of the
collective-bargaining process. As for its activities involving Meyers
and Cerezo, the Board in Joseph T. Ryerson & Sons, Inc., 199 NLRB 461 at
462 (1972), stated that a threat of reprisal for engaging in union
activities:

        strikes at the foundation of that grievance and arbitration
        mechanism upon which we have relied in the formulation of our
        Collyer doctrine. If we are to foster the national policy
        favoring collective bargaining and arbitration as a primary
        arena for the resolution of industrial disputes, as we sought to
        do in Collyer, by declining to intervene in disputes best
        settled elsewhere, we must assure ourselves that those
        alternative procedures are not only ``fair and regular'' but
        that they are or were open, in fact, for use by the disputants.

The evidence establishes that for the period of June through February 1994, Respondent rejected most aspects of collective bargaining with the Union by not engaging in meaningful grievance meetings, not turning over relevant documents to the Union, not allowing it access to the facility, discriminating against its representatives at the facility, and more. It appears that Rattner's principle purpose during this period was to get rid of the Union and its supporters. In this situation, deferral to the contract's grievance-and-arbitration procedure is not warranted.
     Conclusions of Law

    1. Respondent Paragon Paint & Varnish Corporation has been an
employer engaged in commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
    2. The Union has been a labor organization within the meaning of
Section 2(5) of the Act.
    3. The following employees of Respondent constitute a unit
appropriate for the purposes of collective bargaining within the meaning
of Section 9(b) of the Act:

  All employees employed by Respondent in its plant located at 5-
        49 46th Avenue, Long Island City, New York, including working
        foremen, and excluding salesmen, chemists, laboratory
        assistants, clerical office employees, guards and supervisors as
        defined in the Act.

    4. At all material times, the Union and/or Local 406 has been the
collective-bargaining representative of the employees described above.
    5. Respondent violated Section 8(a)(1) of the Act in the following
manner:
    (a) Interrogating its employees about their support for the Union.
    (b) Imposing more onerous and less desirable working conditions on
its employees because they engaged in a concerted protest and strike
commencing on December 22 and other protected concerted actions.
    6. Respondent violated Section 8(a)(1) and (3) of the Act in the
following manner:
    (a) Issuing warnings to its employees.
    (b) Imposing more onerous and less desirable working conditions on
its employees.
    (c) Discharging its employees Arias, Sossinski, and subsequently all
but six of its employees.
    (d) Suspending its employees.
    (e) Forcing employees to work overtime.
    (e) Requiring its employees to use the bathroom to change into their
work clothes.
    (f) Refusing to reinstatement its employees after they made an
unconditional offer to return to work on January 12, 1994.
    (g) Locking out its employees on about February 1, 1994.
    7. Respondent violated Section 8(a)(1) and (5) in the following
manner:
    (a) Failing to give its attorney the required authority with which
to bargain with the Union about grievances.
    (b) Reducing the frequency with which it paid its employees without
prior negotiations with the Union.
    (c) Unilaterally refusing to grant the Union access to the facility.
    (d) Failing to provide the Union with information that it requested
regarding the medical insurance that it provided and the employees that
it employed.
    (e) Requiring its employees to use the bathroom to change in and out
of their work clothes.

         The Remedy

    Having found that Respondent has engaged in certain unfair labor
practices, I shall recommend that it be ordered to cease and desist
therefrom and to take certain affirmative action designed to effectuate
the policies of the Act.
    As I have found that Respondent unlawfully discharged Arias and
Sossinski, I shall recommend that Respondent be ordered to offer them
immediate reinstatement to their former positions of employment or, if
those positions no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privileges, to
make them whole for the loss they suffered, and to expunge from its
files any reference to these terminations. I have also found that
Respondent unlawfully laid off all but about six of its employees on
December 27. It is clear that Meyers, Cerezo, Aponte, and Bruno are 4 of
the approximately 12 who were unlawfully laid off at that time. I leave
it for the supplemental hearing the identity of the others. The backpay
of these employees begins on that day and runs until about March 8,
1994, when they were apparently reinstated to their former positions of
employment. As the Union made an unconditional offer of reinstatement
for all its members on January 12, 1994, the backpay for the
approximately six remaining employees commences on January 17, 1994, and
also runs to March 8, 1994, when they were apparently reinstated. It is
recommended that Respondent make each of these groups of employees whole
for the loss they suffered due to the discrimination against them.
Backpay shall be computed in accordance with F. W. Woolwoth, 90 NLRB 289
(1950), and New Horizons for the Retarded, 283 NLRB 1173 (1986).
    [Recommended Order omitted from publication.]