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Case 10-CA-13407
March 15, 1979


By John H. Fanning Chairman; Howard Jenkins Jr. Member; Betty Southard Murphy Member

On November 16 1978 Administrative Law Court Robert W. Leiner issued the attached Decision in this proceeding. Thereafter Respondent filed exceptions and a supporting brief.

Pursuant to the provisions of Section 3(b) of the National Labor Relations Act as amended the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.

The Board has considered the record and the attached Decision in light of the exceptions and brief and has decided to affirm the rulings findings *fn1 and conclusions of the Administrative Law Court and to adopt his recommended Order. *fn1 Although we adopt the Administrative Law Court's conclusions in full we disagree with his characterization of the events of January 1978 herein as "impasse." Inasmuch as the Administrative Law Court has correctly found that the Respondent has bargained in bad faith we need not pass upon the issue of impasse.


Pursuant to Section 10(c) of the National Labor Relations Act as amended the National Labor Relations Board adopts as its Order the recommended Order of the Administrative Law Court and hereby orders that the Respondent Pillowtex Corporation Atlanta Georgia its officers agents successors and assigns shall take the action set forth in the said recommended Order except that the attached notice is substituted for that of the Administrative Law Court.



This matter was heard in Atlanta Georgia on August 28 and 29 1978 upon a complaint filed by the General Counsel of the National Labor Relations Board together with a Notice of Hearing dated March 24 1978 and Respondent's timely answer filed April 14 1978. The underlying charge and amended charge were filed on February 2 and February 28 1978 by International Brotherhood of Firemen and Oilers herein called the Union or Charging Party. The complaint alleges violation of Section 8(a)(1) (3) and (5) of the Act in that Respondent Pillowtex Corporation allegedly not only failed to bargain with the Charging Party in good faith (which conduct resulted in an alleged unfair labor practice strike) but allegedly refused to reinstate the unfair labor practice strikers. In the course of the hearing however it was stipulated that the strikers were ultimately reinstated to their former jobs and positions.

After the close of the hearing General Counsel and Respondent submitted briefs which have been duly considered.

Upon the entire record made in this proceeding including my observation of the demeanor of the witnesses as they testified and with due consideration of the briefs I hereby make the following:

Findings of Fact and Conclusions of Law

I. The Business of Respondent

Respondent an Illinois corporation maintains an office place of business and production facility located at 300 Wharton Circle S.W. Atlanta Georgia where it is engaged in manufacturing pillows. In the past 12 months a representative period Respondent sold and shipped goods valued in excess of $50 000 directly to customers located outside the state of Georgia. Respondent is and has been at all material times engaged in commerce within the meaning of Section 2(6) and (7) of the Act and I so find.

II. The Labor Organization Involved

International Brotherhood of Firemen & Oilers as Respondent admits is and has been at all material times a labor organization within the meaning of Section 2(5) of the Act.

III. The Alleged Unfair Labor Practices

Pursuant to the Union's petition for certification a Board-conducted election was held on August 26 1977 in a unit of Respondent's production and maintenance employees *fn1 and on November 17 1977 the Charging Party was certified as the statutory representative of Respondent's employees in that unit. Respondent admits that at all times since that certification the Union has been and is the statutory bargaining representative of the unit employees.

The parties stipulated that the Union and Respondent engaged in approximately 14 collective-bargaining sessions in the period commencing December 6 1977 ending May 2 1978. It was further stipulated that on February 1 1978 certain production and maintenance employees engaged in a strike; that on February 2 1978 the Union made on their behalf an unconditional offer to return to work; and that Respondent ultimately reinstated the striking employees notwithstanding it had told some of them that they had been economic strikers who were permanently replaced. *fn2 Finally it was agreed that on February 3 1978 certain additional employees engaged in a strike in support of those employees who had struck on February 1 and whom Respondent said it had permanently replaced. The employees striking on February 3 made an unconditional offer to return on February 6 and were reinstated in the period February 6 through March 8 1978.

Subsequent to the election of August 26 1978 a union negotiating committee was named among the employees. These four employees were Sadie Murray Cecelia Herman Patsy Jackson and Anna McNair. The four employee negotiators were also named shop stewards in the unit. The principal negotiator for the Union was International Representative Edward Draper; the principal negotiator for Respondent was Richard Kerner.

The Collective-Bargaining Section of December 6 1977

At the first meeting the Union presented 20 written proposals (including its economic package of 55 cents per hour wage increase shift differential and paid vacations) and stated that other demands would be subsequently presented. Respondent agreed to review them. Draper said that although the Union had the power to accept any Company proposition the Union would nevertheless seek ratification from the unit members. Similarly Respondent said that any agreement would have to go to its Board of Directors before final approval. Although the parties agreed that all items "agreed upon" would be reduced to writing and be "signed off" they also agreed that such agreed' upon items would nevertheless remain "tentative" until a final written agreement was executed (Tr. 239).

Of particular disagreement in the testimony was whether at this first meeting on December 6 or at any other time Kerner and Draper reached an oral "gentlemen's agreement" *fn3 wherein all non-economic issues would be merely negotiated (according to Draper) or actually resolved (according to Kerner) prior to the discussion of any economic issues. Kerner alleges (and Respondent insists Brief p. 2) that an agreement requiring resolution was made. *fn4 Draper asserts he agreed only that for purposes of orderly presentation non-economic issues would be taken up first. Draper denied that any binding agreement requiring preliminary absolute resolution of all non-economic issues was intended or made or that any agreement precluded him from discussing economic issues along with non-economic issues. *fn5 It is clear from Kerner's testimonial confusion as to what was agreed upon (see footnote above) that while the parties may have agreed on the discussion of non-economic issues first there was no agreement requiring resolution of all economic issues first as a condition of thereafter discussing economic issues. Thus in this discussion between laymen there was no legally effective meeting of the minds as to the nature of their oral "agreement". I therefore must conclude that as Draper testified and General Counsel argues the "agreement" was nothing more than an order of presentation rather than an agreement to preclude the discussion of all economic issues until all non-economic issues were fully resolved.

Kerner (Tr. 250): [Did you say at the January 13 meeting that] the agreement was that the parties had agreed not to discuss economic issues until the non-economic items had been resolved? Ans. "That's correct." (Emphasis supplied).

Kerner (Tr. 274):

Our initial agreement on the 6th of December said that we agreed that we would discuss the non-economics before moving on to the economics. (Emphasis supplied).

Kerner (Tr. 275):

Q. Did you have anything other than the agreement to discuss non-economics before reaching economic issues?

A. Our agreement made on the 6th of December was that we would negotiate discuss and negotiate non-economics before moving on to economics (Emphasis supplied).

Kerner (Tr. 276): [We agreed that] we would negotiate and reach agreement on the non-economic items before moving on to economic issues (Emphasis supplied).

At this first meeting the parties having first discussed the possible effect on their bargaining of repeal of Section 14(b) of the Act the Union demanded that Respondent agree to a checkoff clause of union dues. This demand was thereafter repeated in subsequent meetings.

The Collective-Bargaining Sessions of December 20 1977

At this session Kerner went through each union proposal. To some proposals he stated there was no problem to others he said he would offer different language; and with regard to the request for checkoff he said at this meeting and at all subsequent meetings that the collection of union dues was a "private matter" between the Union and its members and that Respondent was "philosophically opposed" to the collection of union dues on behalf of the Union. At this meeting and in the collective-bargaining session of the next day the parties discussed certain production bonus computations which had come into existence in 1977. When the Union pointed out that the unit employees faired better under the old production quota methods Respondent agreed to return to the old method of bonus computation.

The Collective-Bargaining Session of December 29 1977

At this meeting the parties discussed and agreed upon the Union's request for recognition safety and health standards the scope of the unit and its description. Certain unspecified other union and Respondent proposals were discussed. The Union again demanded that a checkoff of union dues appear in the contract and Respondent refused.

The Collective-Bargaining Sessions of January 4 5 and 6 1978

At these sessions the parties reviewed Respondent's proposals concerning management rights to which the Union raised objection. The parties discussed non-economic matters such as job classification arbitration seniority and rate protection. In each of these meetings the Union requested and Respondent refused to agree to a checkoff clause. The parties agreed on and initialed unspecified boilerplate clauses. At the meeting of January 6 Kerner noted but did not disclose (G.C. Exh. No. 4) that Respondent would never agree ("go to wire on") to the checkoff request. Although the testimony is not entirely clear Kerner took the position on January 6 that although here were "major differences" regarding the no-strike no-lock out clause seniority and management rights Respondent had not taken the position on those issues that it would not budge (Tr. 287).

The Collective-Bargaining Session of January 13 1978

At this meeting the Union presented four to five pages of hand-written demands including the grievance and arbitration provision seniority and checkoff language. Respondent submitted to the Union Respondent's final non-economic offer (G.C. Exh. No. 2). At the time of this presentation Kerner told Draper that this non-economic package was silent on some items including the checkoff issue. Kerner told Draper that Respondent did not intend to make any offer on checkoff but continued to refuse on philosophical grounds to accede to the Union's request for a checkoff. The parties also disagreed on at least two other non-economic matters: the recall rights of laid-off employees and the return to the bargaining unit of supervisory employees. When Respondent told the Union that it had made its final offer on non-economic issues and asked the Union to agree to it the Union refused Draper remarking that the Union required a check off clause in everyone of its contracts; that it "appeared" that they were at an impasse (Tr. 240); and that the parties proceed to discuss economic issues. In passing Kerner told Draper that if the Union agreed to Respondent's non-economic package such an agreement would exclude the omitted check off matters as being banned from further discussion.

I credit Draper's further testimony that he asked Kerner if it would be necessary for the Union to withdraw its check off request before Respondent would discuss economic items and that Kerner said that it would be necessary. I also credit Draper's testimony that Kerner ultimately said on January 13 that Respondent had made its final non-economic offer and that the Union would have to agree to it before Respondent would agree to discuss any economic issues. The credibility resolution in this regard is fully consistent with Respondent's position taken throughout the hearing that it would not agree to a check off clause and that a resolution of economic issues had been agreed upon by the parties as a precondition of discussing economic issues.

After Respondent made this "final" non-economic proposal which Draper found unacceptable Draper requested that the parties commence negotiating economic issues because as he said the parties had been unable to agree on all non-economic issues and that bargaining on economic issues might "wash out" the disagreements on the non-economic issues. *fn6 Kerner refused and reminded Draper of their agreement to resolve all non-economic matters before reaching economic matters. There is no dispute that as of this Friday January 13 meeting non-economic issues other than the checkoff matter had not been agreed upon. These included the no-strike no-lock out clause the management rights clause and seniority.

Kerner's January 16 1978 Letter to Draper:

On Monday January 16 1978 Kerner wrote (Respondent's Exhibit No. 1) to Draper referring to their prior meeting of Friday January 13 1978:

When we adjourned last Friday I had the feeling there was some confusion as to where these negotiations were going.

Our "final non-economic offer" on Friday was just that. A final attempt on by the Company to resolve the remaining non-economic issues. After discussing these proposals with you at the bargaining table it became apparent we still had many major issues to be resolved and in your words "It appears we are at an impasse". Ed I frankly have to agree with you.

Economics of course encompass the remaining issues to be negotiated. However you will recall at the outset of these negotiations both parties agreed that all the non-economic issues would be resolved before we went on to negotiate the economic issues.

In view of the significant differences that exist between us in the area of non-economics I sincerely doubt that trying to negotiate the economics would be fruitful in reaching a final overall agreement.

On the other hand if you feel we could accomplish some tangible positive results by continuing our meetings again next week then I will certainly make myself available at anytime during the seek.

If you would like to discuss this please give me a call. I plan to be in the office all this week. Cordially Richard E. Kerner Director of Personnel

As the result of this letter from Kerner Draper telephoned Kerner and set up a meeting for January 24 1978.

The January 24 1978 Collective-Bargaining Meeting:

At the January 24 collective-bargaining session Draper told Kerner that there would be a union meeting on the next day January 25; that a discussion of economic issues might help to move along the non-economic issues (Tr. 296); that Draper would like to take the company's economic offer to the employees; and that Respondent should make an economic proposal so that it could be taken to the employees. Draper also told Kerner that the Union would be willing to recommend the non-economic package offered by the Respondent if the dues check off matter were moved into the economic issues for discussion. Kerner refused the last proposal and told Draper that their agreement relating to economic and non-economic discussions precluded discussion of the check off provision among the economic issues and that the Union had first to execute the non-economic paragraphs in the Respondent's final non-economic package offer. When Draper said that many of the paragraphs in the non-economic proposal had economic implications Kerner responded by saying: "What if the company has no economic plan"? Draper said that Respondent had to have an economic proposal.

Kerner told Draper with regard to Draper's request to move on to economic matters that sometimes such discussions work (Tr. 296) but said that in view of the still significant unresolved non-economic problems the mere discussion of economic issues did not normally wash away the unresolved non-economic problems. The Union's economic demand since December 1977 consisted of a 55 cent per hour wage increase for unit employees a shift differential of 25 cents per hour and a vacation of 2 weeks to employees who had 1 year of service with Respondent.

Kerner told Draper that he would review the Union's proposals and responds to Draper's demands.

The January 25 Collective-Bargaining Session:

The parties met the next day January 25 1978. At this session Respondent again insisted no the "gentlemen's agreement" of not discussing economic issues before non-economics were resolved and both parties agree that at this meeting Draper told Kerner that he had made no agreement with Kerner to first resolve all non-economic problems before discussing economic issues. Draper told Kerner that he agreed only to first "discuss" all non-economic items.

Draper then accused Kerner of bargaining in bad faith by insisting on the resolution of non-economic matters before discussing the economic items. When Draper asked Kerner whether he was saying that the Union must in particular withdraw its check off demand and agree to Respondent's non-economic package before the Respondent would move on to discuss economic issues Kerner admits that he answered "yes" to this question *fn7 although he phrases it in a slightly differently way (Tr. 312-313): That he would not proceed to economic issues unless the Union "drop" the check off.

After Draper accused Kerner of bargaining in bad faith by the device of the "gentlemen's agreement" Draper said that in view of this situation he was withdrawing from agreement all of the tentatively "signed off" and dated agreements that the parties had initialed.

The Union Meeting of Employees on January 25 1978:

As Draper had informed Kerner earlier on that same day a union meeting was held at about 3:30 p.m. at a local motel. However some employees checked out of Respondent's plant at 2 p.m. and about 20 employees came to the motel with the four committeemen. At the meeting Draper explained to the employees that the Company was taking an unlawful position both insisting on the withdrawal of the checkoff provision before discussing economic issues and by its refusal to negotiate on wages (Tr. 106 122 145). On this statement the employees said they wanted to strike immediately but Draper advised against the strike telling them that it would not be advisable. Draper recommended instead that the 20 employees vote to permit any future lawful action against Respondent without his having to again call all the employees to another meeting. The employees voted in favor of such a right.

At a subsequent union meeting of January 31 1978 the negotiating committee told Draper that the employees were upset and wanted to strike immediately. Although Draper again told them that it was an ineffective method of resolving their problem at least two of the negotiating committee told Draper that the employees were going to walk out the next day at noon. Draper said he would be at the motel. Again that evening committeeman Cecelia Herman told Draper that the employees were going to strike at lunchtime on the next day February 1 1978.

The Strike of February 1 1978:

It is undisputed that some time on and after 10:30 a.m. of February 1 unit employees after discussing the matter with the negotiating committee's shop stewards agreed to walk out in protest over the fact that they had been told that the Respondent had refused to bargain. At 11:30 a.m. at least 36 employees walked out of Respondent's plant and punched out. It was stipulated at the hearing that on the next day February 2 1978 Draper on behalf of the striking employees made an unconditional application for the employees to return to work. It was further stipulated that Respondent by Kerner received that application from Draper; told Draper that the employees had engaged in an economic strike and as economic strikers had been permanently replaced; and that he was turning them away. Draper then asked Kerner for and Kerner gave him a list of those employees who had been permanently replaced. Only an unspecified minority of the February 1 strikers were permitted to return to work on February 3 the balance being told by Kerner they were permanently replaced. Thus the "permanently replaced" strikers appeared on the list.

It was stipulated at the hearing that 36 permanently replaced strikers by virtue of Respondent's action following the employees engaging in the February 1 strike were nevertheless offered reinstatement by Respondent and ultimately were reinstated at least those alleged in the complaint. *fn8

The Strike of February 3 1978:

On February 3 1978 the employees who had struck on February 1 and who were permitted to return to work on February 3 and additional unit employees engaged in a strike. The motivation for this February 3 strike was to attempt to force Respondent to reinstate the employees whom Respondent told it had been permanently replaced after participation in the February 1 strike.

On the next working day after the February 3 walkout Monday February 6 the entrances to the plant were blocked in such a way that all employees had to report to Kerner and plant manager Osborne. It was admitted by Kerner that on February 6 the employees who struck on February 3 requested their jobs back. It was stipulated at the hearing that at least ten employees who had participated in the February 3 strike in addition to those who had participated in the February 1 strike were reinstated and returned to Respondent's employment. *fn9

Gerald Lang on March 6 and Carrie Stringer reinstated on March 8 1978.

The Collective-Bargaining Session of March 8 1978

The next collective-bargaining session was on March 8 the first meeting since January 25.

Kerner testified that whereas in the January 13 collective-bargaining session Draper had merely requested or "suggested" that Respondent bargain on economic issues on March 8 1978 Draper demanded Respondent's economic proposals. In particular Kerner remembered that Draper said that all he really wanted was Respondent's answer to his demand for the 55 cent an hour wage increase for unit employees. Kerner told Draper that since Draper had withdrawn his tentative agreement on the non-economic matters Kerner wanted a review of all the non-economic matters on which the now had agreement. The session was spent reviewing these matters. Draper said that they were wasting time and he wanted to discuss economic matters. Notwithstanding that Kerner again reiterated that Draper was breaking their agreement to resolve non-economic matters first Kerner told Draper that he would present the Respondent's economic proposals at their next meeting and was not then prepared to discuss them.

The Meeting of March 13 1978:

At the opening of the March 13 meeting Kerner told Draper that the Respondent had given consideration to the Union's economic and non-economic demands and now was making a complete economic and non-economic offer. The non-economic matters were in writing and reflected some changes from Respondent's prior "final" non-economic offer. The changes contained some unspecified movement favorable to the Union's position in the no-strike clause. The non-economic matters offered by Respondent contained both Respondent's own proposals on the matters not agreed on sand contained the language of the non-economic matters on which agreement had been reached.

With regard to the Respondent's economic proposal it was not in writing but was a verbal statement. Kerner told Draper that Respondent's economic position was that there would be no increase or decrease or change in the wage rates and economic benefits of the unit employees that the Respondent was competitive in the Atlanta area on its wage rates and "That's our final economic offer."

At this meeting Draper submitted an alternative method to his request for checkoff. In lieu of a contractual checkoff of wages Draper suggested that employees be paid with two checks on payday: one check for $8 (representing monthly union dues) and a second check for the balance of the employee's wages. Kerner said he would consider the matter. After a luncheon break Kerner returned and said that Respondent found the proposal to be non acceptable called it a subterfuge and rejected it.

With regard to Respondent's final economic offer of March 13 Draper told Kerner that it was not acceptable to him or to the committee and that they would not recommend it to the unit. It is also uncontested that at this time there were non-economic issues other than the check off issue on which the parties did not agree. These issues included seniority and return of supervisors to bargaining unit positions.

The April 25 Collective-Bargaining Session:

In the next collective-bargaining session April 25 1978 Draper offered a second alternative to the check off clause. Draper suggested that a chair and table for union use be placed in Respondent's plant on the second and fourth Fridays of each month which were paydays to permit the employees to pay their union dues at the table. Later in the day Respondent refused the table and chair idea again stating that Respondent was philosophically opposed to participation in the collection of union dues a matter which was to be settled between the Union and its members.

At this April 25 meeting the Union changed its economic position in a manner not specified in the record. Kerner however described the change as an actual shift and movement. In any event Kerner left the room to consider the Union's change of position and when returning said that Respondent's final economic and non-economic position was on the table and he rejected the Union's economic offer though changed. Kerner refused to discuss the check off alternatives any further.

There was a meeting of May 2 1978 between the parties. Draper could not recall the substance of the meeting but recalled only that there was no agreement.

Some 10 days after the May 2 meeting the Union contacted the Federal Mediation and Conciliation Commissioner and asked for a further meeting. The Commissioner sent Kerner a letter requesting a new meeting. In response Kerner acknowledged receipt of the Commissioner's letter regarding the further meeting but said that the Commissioner's letter failed to mention a specific reason for the meeting. Kerner said that Respondent's position had not changed as outlined in his prior discussions with the Commissioner and with Ed Draper. *fn10

Discussion and Conclusions

Respondent in brief argues that the parties (1) reached impasse certainly no later than January 13 1978 on the Union's demand for a dues check-off clause and Respondent's refusal; (2) that the Union's request on January 13 and January 24-25 1978 for Respondent to discuss economic items in order to seek to avoid this impasse did not impose an obligation on Respondent to do so in view of the Union having entered into an agreement to resolve all non-economic issues prior to bargaining on economic issues and there remained other (aside from impasse on check-off) unresolved non-economic issues (no-strike clause arbitration seniority); (3) that even if there were no binding agreement relating to the resolution of unresolved non-economic issues Respondent's good faith belief that such an agreement existed permitted Respondent to refuse to bargain on economic issues; (4) that the unit employees strikes of February 1 and 3 1978 were the result of the impasse reached on the subject of checkoff and not of any unfair labor practice; (5) that the Union insisted on a check off as a condition of executing an agreement through March 1978 and that its goal in seeking to bargain on economic issues was to have Respondent trade check off in exchange for union compromises on economic issues; (6) that the March and April union alternatives to its check off proposal did not affect the prior impasse and the nature of the February strikes; and (7) that when the Union on January 25 1978 repudiated the agreement to resolve non-economic issues first and on March 8 made its demand for bargaining on economic issues Respondent on March 13 in good faith promptly presented a complete contract proposal containing an economic package.

A. Impasse:

The evidence shows that at least as early as January 4 1978 (General Counsel's Exhibit No. 4) and thereafter Union Agent Draper said he would not recommend an agreement regardless of other terms without a dues check off clause; and that at the January 13 bargaining session he said that the parties were at "impasse" on check off. On the other hand at the same January 13 meeting Draper requested that Respondent discuss economic issues precisely because the parties unable to agree on all non-economic issues might "wash out" the disagreements on non-economic issues by discussing and perhaps agreeing on economic issues. Indeed Respondent inferred this to be Draper's strategy when after his early January insistence on a dues check off clause he thereafter requested that they discuss economics (Respondent's Brief p. 8). The evidence it seems to me therefore shows that at no time prior to the strike of February 1 1978 was there any legal "impasse".

(1) No Impasse Occurred:

Once the parties reach impasse on a mandatory subject of bargaining and no subsequent event removes the impasse the employer as here would be relieved of any duty to further negotiate. Taft Broadcasting Co. 163 NLRB 475 enfd. 395 F. 2d 622 (C.A. D.C. 1968). Impasse as Respondent asserts (Brief p. 7) citing Yama Woodcraft Inc. d/b/a/ Cal-Pacific Furniture Mfg. Co. 228 NLRB No. 169 has been defined as that point in time in negotiations when the parties are warranted in assuming that further bargaining would be futile. Alsey Refactories Co. 215 NLRB 785 (Fn. 1). Here on January 13 there was no exchange between the parties each advising the other that its position was firm and intractable Lumber & Sawmill Workers Local 2647 (Cheney California Lumber Co.) 130 NLRB 235 238. On January 13 the Union having made no progress on check off and while saying that the parties appeared to be at impasse on the check off issue *fn11 requested bargaining on economic issues. No speculation is necessary to conclude what Respondent interpreted the Union's request to mean: Respondent knew (Respondent's Brief p. 8) that Draper by asking Respondent to discuss economic issues (the Union had presented its economic demands on December 6 and December 20 (Tr. 51) was willing to change its position on economics. When the Union's implicit offer of January 13 to change its economic position is coupled with Respondent's January 16 letter inviting the Union (Respondent's Exhibit No. 1) to continue to bargain (albeit doubting that subsequent negotiating on "... economics would be fruitful in reaching a final overall agreement.") it cannot be said that as of Respondent's January 16 letter or the subsequent meetings of January 24-25 when Draper sought to discuss economics the parties were at the end of their bargaining rope H.E. Fletcher Co. 131 NLRB 474 483; Builders Institute of Westchester County supra.

I conclude that at least through January 25 1978 when the Union was seeking to discuss economic issues to get around Respondent's insistence that it would not become involved in any check off there was no futility in bargaining and thus no impasse if for no other reason than Respondent's explicit invitation for continuing bargaining on economic issues in its letter of January 16. C.F. Dallas General Drivers Local 745 (Empire Terminal Warehouse Co. )355 F. 2d 842 (C.A. D.C.).

(2) Any Impasse Through January 25 1978 was broken:

While it is true that on January 13 Draper said that the parties appear to be at impasse Respondent failed to rest on the asserted impasse on check off and thereafter refuse to bargain on economic issues. Instead by its letter of January 16 to the Union Respondent's Exhibit No. 1) it agreed that "Economics of course encompass the remaining issues to be negotiated."

Indeed pursuant to Respondent's January 16 letter to Draper the parties actually met on January 24 and again on January 25. When on January 25 Draper requested discussion of economic items Kerner refused on the grounds of their "gentlemen's agreement" and demanded that the Union agree to the Respondent's non-economic package before Respondent would discuss economic issues.

Thus even if impasse existed on January 13 it was surely broken by Respondent's January 16 letter not only inviting further bargaining but first having expressed sincere doubts recognizing that bargaining on economic issues might yield results. Thus assuming arguendo that the parties were at impasse on January 13 on check off issues Kerner's statement to Draper on January 16 shows that continued subsequent negotiations on economic issues might be a way around their non-economic differences .I conclude that by such an invitation and by the subsequent bargaining on January 24 and 25 (a) to engage in subsequent negotiations and (b) to negotiate on economic issues Respondent effectively waived any right to rely on a January 13 impasse as a basis for there after refusing the Union's request to bargain on economic issues. Goodyear Tire & Rubber Co. 217 NLRB 73.

In fact on January 24-25 Draper requested (as he had done on January 13) what Kerner on January 16 had actually invited: discussion of economic issues as a device around their non-economic differences. *fn12 Draper was met with a refusal based only on their "gentlemen's agreement" to "resolve" all non-economic issues including check off before discussing economic issues and Kerner's insistence that the Union "drop" the check off demand and agree to Respondent's non-economic package before Respondent would discuss economic issues.

Having by its conduct broken or waived any prior check off impasse Respondent was now refusing to bargain on economic issues which it had invited a mandatory subject of bargaining. A refusal to bargain on a mandatory subject of bargaining violates Section 8(a)(5) of the Act. *fn13 N.L.R.B. v. Wooster Division of Borg-Warner Corp. 356 U.S. 342 349. If the party's behavior is in effect a refusal to negotiate or if it directly obstructs or inhibits the active process of discussion as Kerner did here the Board is authorized to order cessation of such behavior. Contrary to Respondent's assertion Respondent's subjective good faith (for 8(a)(5) violations) on the issue on which he refuses to bargain is no defense even if the party shows good faith bargaining on other matters. N.L.R.B. v. Katz 369 U.S. 736 743; Yama Woodcraft Inc. d/b/a Cal-Pacific Furniture Manufacturing Co. 228 NLRB No. 169.

Thus unless Respondent by virtue of its "agreement" with Draper was privileged to refuse to discuss economic issues (especially where as here it had itself invited Draper to enter into such economic discussions if he though it might "... accomplish some tangible positive results by continuing our meetings...." (Respondent's Exhibit No. 1) and Draper sought to do so) *fn14 then Respondent's refusal violated Section 8(a)(5) of the Act as alleged.

B. The "Gentlemen's Agreement"

The above conflicting testimony between Draper and Kerner with regard to the substance of their agreement regarding the discussion of non-economic issues and indeed Kerner's own testimony demonstrates that contrary to Respondent's assertion Kerner could not and did not arrive at an agreement with Draper requiring resolution of all non-economic issues before economic issues were reached. Kerner changed his testimony on the point through an entire spectrum of variations from a mere agreement to discuss (Tr. 274) as Draper insisted on January 25 to an agreement to discuss and negotiate (Tr. 275) to negotiate (Tr. 248) to an agreement to resolve (Tr. 250) and lastly to an agreement to negotiate and reach agreement (Tr. 276).

Since Kerner did not know what the terms of his "gentlemen's agreement" were and since Draper denied the agreement included resolution of non-economic issues before economic issues were discussed I cannot and do not on this record conclude that the preponderance of evidence (or any credible evidence) shows that an agreement requiring the preliminary resolution of outstanding non-economic issues was concluded by the parties.

Kerner's January 16 letter to the Union wherein he describes the parties' agreement as one requiring non-economic issues be first "resolved" is not impressively to the contrary. Firstly Kerner was unable to credibly testify (with the letter easily at hand) what the terms of the agreement encompassed and consistently contradicted himself on the point. Secondly communications between adverse parties during negotiations are vehicles peculiarly susceptible to self-serving statements and are therefor untrustworthy as proof of the truth of their contents.

Further I do not believe as would Respondent that Draper's silence on the issue until January 25 demonstrates that he believed that the "agreement" required a resolution of all non-economic items. (Respondent's Brief p. 2). While it is true that a party's silence or inaction may at times be a defense (showing acquiescence waiver etc.) N.L.R.B. v. Spun-Jee Corp. 385 F. 2d 379 (C.A. 2 1967) reversing and remanding 152 NLRB 943 Draper's silence in response to Kerner's letter concerning the content of their agreement is too ambiguous to necessarily infer an agreement to Kerner's assertion.

Lastly in view of Draper's denial and Cecelia Herman's corroborating testimony I do not credit Kerner's testimony that at the January 13 meeting Draper agreed to the resolution of non-economic issues before economic issues were discussed. The circumstances as demonstrated by Kerner's varying testimony are far too ambiguous with regard to the content of the agreement to credit Kerner's testimony on this point.

Thus the preponderance of credible evidence fails to show that the parties reached agreement requiring the resolution of all non-economic issues before economic issues could be discussed. Rather I credit Draper who testified that he agreed to Kerner's suggestion that they negotiate and attempt to resolve all non-economic issues before going to economic items (Tr. 12).

In view of Respondent's failure to come forward with proof *fn15 I conclude that no agreement of the parties permitted Respondent to refuse to bargain on the mandatory economic issues as requested by the Union. I further conclude that in the absence of such an agreement Respondent violated Section 8(a)(5) of the Act by refusing on and after January 24 1978 to discuss economic matters notwithstanding that the Union first requested discussion of economic issues on January 13.

Where as here any impasse on non-economic issues having been waived by Respondent Respondent's refusal to bargain about economic matters because it was privileged by agreement to do so and its instance that the Union accept Respondent's full non-economic package as a condition of Respondent's discussing economic issues comes within the holding of Yama Woodcraft Inc. 228 NLRB No. 169 where a violation of Section 8(a)(5) was found in similar conduct. Absent impasse or as here where if there was impasse it was broken if one of the parties insists that non-economic issues be completely resolved on terms favorable to it before it will discuss economic issues impasse is virtually guaranteed. Such a "procedural straight jacket" *fn16 is incompatible with the statutory duty to negotiate in a manner which facilitates agreement.

In view of the conclusion that no binding agreement existed it is unnecessary to reach or decide General Counsel's further assertion -- that any such agreement would be unlawful under public policy pronouncements in favor of unobstructed bargaining N.L.R.B. v. Insurance Agents' International Union 361 U.S. 447 and N.L.R.B. v. Katz 369 U.S. 736. Respondent asserts that the Board has never passed on the status of such agreement but its citation of H.K. Porter Co. v. N.L.R.B. 397 U.S. 99 seems wide of the mark since that case failed to deal with the issue of procedural impediments placed in the path of bargaining on substantive issues.

C. The Strikes of February 1 and 3 1978

The evidence shows and Respondent concedes (Respondent's Brief p. 3) that the February 1 strike occurred because the Union (Draper) told employees on January 25 1978 at the union meeting that Respondent was unlawfully refusing to bargain over economic items. Indeed the February 1 strike was due to the shop stewards telling employees that Respondent was refusing to bargain lawfully and the walk-out was to protest that conduct.

I have found that Respondent did violate Section 8(a)(5) commencing January 24 by refusing to bargain on economic issues and I further conclude in the absence of any evidence to the contrary that the February 1 strike was caused by (and did not merely follow) Respondent's unlawful conduct. Cf. Tufts Brothers Inc. 235 NLRB No. 100.

The strikers commencing with the initial February 1 walkout were therefore unfair labor practice strikers not economic strikers and could not be permanently replaced.

In accordance with the stipulation of the parties the striking employees unconditionally requested reinstatement on the next day February 2 and were thereafter all reinstated. *fn17

The evidence shows however that few of the returning unfair labor practice strikers were actually reinstated on the next working date Friday February 3; that although a few strikers returned to work on February 3 the 36 unfair labor practice strikers appearing on Respondent's February 2 list presented to Draper were told by Respondent that they were permanently replaced; and that the strike of February 3 resulted therefrom. Since Respondent was obliged not only to offer the February 1 strikers following their February 2 unconditional offer to return "immediate and full reinstatement " Newport News Shipbuilding and Dry dock Co. supra and to refrain from threatening or permanently replacing them I conclude that the strike of February 3 by the February 1 strikers and other unit employees to protest Respondent's permanently replacing many of the February 1 strikers and refusing them immediate reinstatement also constituted an unfair labor practice strike. It was stipulated that all these strikers of February 3 were also ultimately reinstated. *fn18

Respondent's advising these unfair labor practice strikers that they were permanently replaced and the failure to offer immediate and full reinstatement to all strikers in both strikes violates Section 8(a)(3) and (1) of the Act. Mastro Plastics Corp. v. N.L.R.B. 350 U.S. 270 278 (1956). That the "replaced" unfair labor practice strikers were ultimately reinstated does not obviate Respondent's initial unlawful conduct; it merely limits Respondent's back pay liability.

D. The Effects of Bargaining after the Strike

The subsequent bargaining resulted in the Union demanding a response to its economic demands and providing alternatives to its check-off demands. Respondent refused the two check off alternatives (separate checks and separate tables) and countered with a complete economic and non-economic offer. The economic offer a "final offer " was to maintain the economic status quo. *fn19 Respondent's non-economic offer to the Union contained inter alia apparently minor Respondent concessions on the no-strike language. The Union rejected the economic package offered by Respondent. Respondent rejected all Union alternatives to the check off. The Union did not withdraw its alternatives to check-off and did not accept Respondent's non-economic package.

The Union presented its economic and non-economic proposals at the first meetings in December 1977. At the collective-bargaining session 3 months 11 collective bargaining-sessions and two strikes later Respondent in response to the Union's "demand" for an economic counteroffer informed the Union it was not yet prepared to do so. The ground was that it was necessary to review the there to fore agreed upon non-economic provisions which the Union withdrew upon Respondent's unlawful refusal to bargain on wages. Although Respondent makes much in conclusionary terms of other non-economic issues which remained unresolved upon the resumption of post-strike bargaining the Union had abandoned the one demand to which Respondent had "philosophical" objections: the check off clause. Whatever the feasibility or wisdom of the Union's alternative positions on separate checks or separate tables for the collection of union dues neither was a contractual check off position. In response to this union retreat Respondent offered a "take it or leave it" wage offer: keep the status quo. Respondent termed its wage offer "a final offer."

It would seem that by such conduct Respondent was engaging in "bargaining" calculated to ensure that no agreement would be reached; or in the alternative that an agreement would be on terms it would dictate. When the Union abandoned its absolute check off demand Respondent then closed the door by submitting a final position -- take it or leave it. In the light of its past unfair labor practices and its statement to Draper that Respondent might not have a wage proposal such post-strike "bargaining" cannot be said to be good faith bargaining notwithstanding the Respondent is under no affirmative duty to grant a wage increase. Respondent by such cat and mouse tactics showed it had no "serious intent" to reach a common settlement ground. Romo Paper Products Corp. 220 NLRB No. 81 90 LRRM 1397 1398 and cases cited.

Even assuming Respondent's subsequent table bargaining viewed in isolation amounted to "good faith" bargaining Respondent may not escape the consequences of having caused an unfair labor practice strike by its insistence on fragmented bargaining Vander built Products Inc. 129 NLRB 1323 enf. 297 F. 2d 833 (C.A. 2 1961) then unlawfully threatening the unfair labor practice strikers with permanent replacement not reinstating them immediately and then with unfair labor practice strikers still unreinstated bringing the Union to the bargaining table as a defeated enemy. To say that the Respondent's subsequent bargaining was mere "hard bargaining" and washed clean the slate when it then makes an economic offer no self-respecting union could accept and then refuses to bargain at all with regard to this first final and only wage offer flies in the face of the prohibitions imposed on parties not to engage in mere surface bargaining or shadow boxing to a draw. While I am not at all suggesting that Respondent was obliged to make any concession with regard to wages it was not engaged in the good-faith collective bargaining required by Section 8(a)(5) of the Act when it made a take it or leave it offer on wages and refused thereafter to bargain with the Union on it after the Union capitulated on the check off clause. N.L.R.B. v. Herman's Sausage Co. Inc. 275 F. 2d 229 (C.A. 5 1960); Carpenters District Council of Jacksonville Florida et al 221 NLRB 876; Romo Paper Products Corp. supra; N.L.R.B. v. Reed and Prince Manufacturing Co. 205 F. 2d 131 139 (C.A. 1 1953); cert denied 346 U.S. 887; Local 103 Iron Workers (Associated General Contractors) 190 NLRB 741 742. Respondent's conduct comes directly within the proscription of N.L.R.B. v. Reed & Prince Mfg. Co. supra pp. 134-135 wherein Court stated that while the Board: ... cannot force an employer to make a 'concession' on any specific issues or adopt any particular position the employer is obliged to make some reasonable effort in some direction to compose his differences with the Union if Section 8(a)(5) is to be read as imposing any substantial obligation at all

I therefore conclude that Respondent's post-strike bargaining neither vitiated nor cured its prior violations of Section 8(a)(5) and indeed continued to demonstrate bad faith bargaining.

Upon the basis of the foregoing findings of fact and the entire record I make the following:

Conclusions of Law

1. Pillowtex Corporation the Respondent herein is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act.

2. International Brotherhood of Firemen & Oilers the Union herein is a labor organization within the meaning of Section 2(5) of the Act.

3. All production and maintenance employees employed by Respondent at its Atlanta Georgia facility but excluding the expediter all office clerical employees professional employees guards and supervisors as defined in the Act constitutes a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act.

4. Since August 26 1977 the Union has been and is now the exclusive representative of all employees in the aforesaid bargaining unit for the purpose of collective bargaining within the meaning of Section 9(a) of the Act.

5. The strikes by Respondent employees of February 1 and February 3 1978 were unfair labor strikes from their inception.

6. By refusing commencing January 24 1978 to permit discussion of economic issues in contract negotiations until all non-economic terms were agreed on and requiring as a condition of any such discussion that the Union agree to accept Respondent's terms on non-economic issues and by refusing to bargain on its economic offer Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act.

7. By refusing immediately to reinstate unfair labor practice strikers to their former positions of employment upon their unconditional applications for such employment on February 2 and February 6 1978 and by permanently replacing the listed February 1 economic strikers Respondent violated Section 8(a)(3) and (1) of the Act. Weather Tec Corp. 238 NLRB No. 210.

8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act.

The Remedy

Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) (3) and (5) of the Act I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Notwithstanding that Respondent ultimately reinstated all unfair labor practice strikers it told them and they were permanently replaced and rejected and unduly delayed such reinstatement for many of the strikers National Car Rental System Inc. 237 NLRB No. 23. I shall therefore order that each of the strikers be made whole for any loss of earnings he or she may have suffered as a result of Respondent's refusal to reinstate them commencing with the date when the unconditional offer was made as to them and until reinstatement by paying to each of them a sum of money equal to that which each would have earned as wages less any net earnings during such period together with interest to be computed in the manner prescribed by the Board in F. W. Woolworth Company 90 NLRB 289 (1950) and Florida Steel Corporation 231 NLRB No. 117 (1977). *fn20 See: Weather Tec Corp. supra.

Having found that Respondent has refused to bargain in good faith with the Union it will be recommended that the Respondent in good faith bargain collectively upon request with the Union as the exclusive representative of the employees in the appropriate unit and if an understanding is reached embody such understanding in a signed agreement.

As in Yama Woodcraft Inc. d/b/a Cal-Pacific Furniture Manufacturing Co. 228 NLRB No. 169 the General Counsel has not sought an extension of the certification year (see Mar-Jac Poultry Company Inc. 136 NLRB 785) but apparently seeks only a general bargaining order to remedy the unlawful refusal to bargain. Here as in Yama Woodcraft some 9 months into the certification year has gone by and Respondent has not bargained in good faith. Under these circumstances rather than provide an extension period of approximately 2-1/2 months from the resumption of the negotiations I am of the view that a general bargaining order is more meaningful. See Federal Pacific Electric Co. 215 NLRB 861

Upon the foregoing findings of fact conclusions of law and the entire record and pursuant to Section 10(c) of the Act I hereby issue the following recommended: *fn21


Respondent Pillowtex Corporation Atlanta Georgia its officers agents successors and assigns shall:

1. Cease and desist from:

(a) Refusing to bargain collectively in good faith with International Brotherhood of Firemen and Oilers herein called the Union as the exclusive representative of its employees in the following appropriate unit:

All production and maintenance employees employed by Respondent at its Atlanta Georgia facility but excluding the expediter all office clerical employees professional employees guards and supervisors as defined in the Act.

(b) Discriminating against its employees who engage in an unfair labor practice strike by refusing to reinstate them immediately upon their unconditional offer to return to work in their former positions of employment.

(c) In any other manner interfering with restraining or coercing its employees in the exercise of their rights guaranteed in Section 7 of the Act.

2. Take the following affirmative action which is necessary to effectuate the policies of the Act:

(a) Upon request bargain collectively with the Union as the exclusive representative of all employees in the aforesaid appropriate unit with respect to rates of pay wages hours of employment and other terms and conditions of employment and if an agreement is reached embody such understanding in a signed agreement.

(b) Make whole all those unfair labor practice strikers of February 1 and 3 for any loss of earnings they may have suffered by reason of the refusal to immediately reinstate them by payment to each a sum of money equal to that which each employee would normally have earned during the period commencing when the unconditional offer for reinstatement was made to the date of Respondent's reinstating such employee. Back pay shall be computed on the basis of calendar quarters in accordance with the method described above in the section entitled "The Remedy."

(c) Preserve and upon 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 back pay due under the terms of this Order.

(d) Post at its premises in Atlanta Georgia copies of the attached notice marked "Appendix." *fn22 Copies of said notice on forms provided by the Regional Director for Region 10 after being duly signed by Respondent's representative shall be posted by it for 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered defaced or covered by any other material.

(e) Notify the Regional Director for Region 10 in writing within 20 days from the date of this Order what steps the Respondent has taken to comply herewith.

Dated Washington D.C. November 16 1978

APPENDIX NOTICE TO EMPLOYEES Posted by Order of the National Labor Relations Board An Agency of the United States Government

After a hearing in which all parties were represented and afforded the opportunity to present evidence in support of their respective positions it has been found that we have violated the National Labor Relations Act in certain respects and we have been ordered to post this notice and to carry out its terms.

WE WILL NOT refuse to bargain collectively with International Brotherhood of Firemen & Oilers the Union as the exclusive representative of all employees in the appropriate unit described below and if an agreement is reached embody it in a signed contract. The appropriate unit is:

All production and maintenance employees employed by us at our plant located in Atlanta Georgia but excluding the expediter all office clerical employees professional employees guards and supervisors as defined in the Act.

WE WILL NOT discriminate against unfair labor practice strikers by failing to reinstate them immediately upon their unconditional request therefore.

WE WILL NOT in any other manner interfere with restrain or coerce any of our employees in the exercise of their rights to engage in activities protected by Section 7 of the Act.

WE WILL make whole for loss of pay any unfair labor practice striker whom we have reinstated for the period commencing with the employee's offer of unconditional return to work and ending with the date of reinstatement plus interest.




(Representative) (Title)

This is an official notice and must not be defaced by anyone.

This notice must remain posted for 60 consecutive days from the date of posting and must not be altered defaced or covered by any other material. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office Marietta Tower -- Suite 2400 101 Marietta Street N.W. Atlanta Georgia 30303 Telephone 404 -- 221 -- 2886.


*fn1 The unit which Respondent admits is appropriate within the meaning of Section 9(b) of the Act is: All production and maintenance employees employed by Respondent at its Atlanta Georgia facility but excluding the expediter all office clerical employees professional employees guards and supervisors as defined in the Act. At the time of the hearing Respondent employed approximately 100 employees in its Atlanta plant of whom approximately 85 were unit employees. It employs approximately 610 employees in its plants throughout the country.

*fn2 The dates of ultimate reinstatement were also stipulated. An unspecified number of striking employees returned to work on the next day (Friday February ) after the unconditional offer to return but many were directed by Respondent to return on February 6 and thereafter. The striking employee was reinstated on April 10 1978. See footnote 8 supra. On the basis of the above stipulation and in the absence of evidence to the contrary I conclude that those strikers appearing on a list prepared by Respondent were permanently replaced and that their ultimate reinstatement to unit jobs was in those positions which they held prior to the strike.

*fn3 It is assumed arguendo that if otherwise enforceable an agreement is not rendered unenforceable by its being denominated a "gentlemen's agreement."

*fn4 Kerner (Tr. 248): [At the January 13 meeting] I reminded [Draper] of the agreement that we had made back on December 6th that we would negotiate all the non-economics first and that we had major non-economic issues still to be resolved. (Emphasis supplied).

*fn5 Employee Cecelia Herman a member of the union negotiating committee corroborated Draper and testified that she was present at the first (December 6 1977) negotiating session and that Draper agreed only to discuss non-economic items before discussing economic items.

*fn6 Contrary to Kerner's testimony that Draper did not request moving to economic issues before January 25 Kerner admitted on cross-examination that on January 13 Draper "suggested" that due to the impasse on non-economic matters the parties proceed to economic matters. Kerner admitted that the reason Draper gave was that the discussion of economic matters might "wash out" the disagreements they faced on the non-economic items.

*fn7 Kerner denied saying this to Draper on January 13 (Tr. 242) and January 25 (Tr. 248). Respondent inaccurately states (Brief p.6) that Kerner said merely that non-economic issues would first have to be "resolved".

*fn8 The following is the stipulated list of employees who having engaged in the February 1 strike were permanently replaced. This listing agreed upon by the parties does not include the names of the employees if any who are not permanently replaced or who did not engage in the strike that day: L.G. Price reinstated February 7 1978; B.L. Copeland reinstated February 6; D.A. Harris February 16; R. Stegall reinstated February 6; S.M. Murray reinstated March 14; A. McNair reinstated February 6; A.D. Finney reinstated February 6; C. Herman reinstated February 21; L. Grier reinstated February 6; L. Taylor reinstated February 6; G. Cantrell reinstated March 7; W. Westley reinstated March 9; S. Bynum reinstated February 7; G. Mathis reinstated February 6; J. Adam reinstated February 6; C. Russell reinstated March 9; S. Simmons reinstated March 13; J. Thurmon reinstated February 13; R. Burton reinstated February 6; E. Huffman reinstated February 6; R. Weldon reinstated March 9; John Murray reinstated March 9; P. Thurmon reinstated March 7; J. Wilder reinstated February 22; R. Smith reinstated February 7; Y. Butler reinstated February 7; E. Thomas reinstated April 5; T.L. White reinstated March 9; D. Pressnell reinstated February 24; S. Pressnell reinstated February 6; B. Scott reinstated February 13; E. Foremen reinstated April 5; Carolyn Harris reinstated April 10; R. Griffin reinstated February 6; S. Gordon reinstated February 6 and L. Gaye reinstated February 27 1978.

*fn9 The reinstatement of the February 3 strikers are as follows: Marjorie Coates Catherine Gay Jeanette Petty and Patsy Jackson were reinstated on February 6. Robert Middlebrooks was reinstated on February 7. Hellen Minor on February 13; Pauline Leveritte on February 23; Catherine Bell on March 2;

*fn10 General Counsel adduced evidence of a third alternative by the Union relating to the check off provision. This third alternative related to the use of an armored car to enter Respondent's premises where the Respondent's employees' paychecks could be cashed and at the same time pay the union dues. Kerner credibly testified however that the only time the armored car was mentioned was to alleviate check cashing problems that the employees were experiencing at neighborhood banks; and that nothing was mentioned about the check off provisions nor did the armored car have anything to do with an alternative for check offs.

*fn11 Use of words like "impasse" or "deadlock" by the parties even relating to overall issues do not necessarily imply that future bargaining would be futile. Builders Institute of Westchester County 142 NLRB 126 127 (fn. 2). It may be noted that in that case where no impasse was found as in the instant case no date was set for future meetings prior to the strike although the mediator in that case said that future meetings would be called. Further here no mediator invited furture meetings - Respondent invited the future meetings of the parties to discuss economic issues. Thus as the Board noted (Builders Institute of Westchester County at p. 127): such bargaining devices or scare words such as "impasse" or "deadlock" are not binding legal conclusions: An impasse should not be mechanically inferred simply because the parties have failed to reach complete agreement after some specified number of negotiating sessions or whenever a party announces that its position is henceforth fixed and no further concessions can be expected.

*fn12 On January 24 Draper offered to capitulate on all non-economic differences except check off if Respondent would bargain on check off among the economic issues.

*fn13 Under Section 8(a)(5) of the Act it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees?" Collective bargaining is defined in Section 8(d) of the Act as the "... mutual obligation... to meet at reasonable times and confer in good faith with respect to wages hours and other terms and conditions of employment or the negotiation of an agreement...."

*fn14 No explanation appears in this record why Respondent on the one here wrote to the Union on January 16 (knowing of the alleged agreement to first resolve non-economic matters) inviting further meetings and discussions on "economics" (the "remaining issues to be negotiated") and then on January 24-25 at the first opportunity refuse to discuss the subject on which it had itself invited discussion. Certain ominous inferences are at hand including a desire by Respondent to cement the parties intobli a non-economic impasse by postponing economic bargaining to the end of negotiations. See particularly N.L.R.B. v. Patent Trader Inc. 415 F. 2d 190 (C.A. 2 1969) modified on rehearing 426 F. 2d 791 (1970).

*fn15 I conclude that General Counsel proved a prima facie violation of Section 8(a)(5) by proof as here of Respondent's refusal on January 24 to discuss economic issues after waiver of any prior impasse on the Union's check off demand. The burden of coming forward on the issue of the nature of the gentlemen's agreement passed to Respondent since it asserts that the agreement obviated any obligation to bargain on a mandatory subject of bargaining. The "gentlemen's agreement" is a matter of defense on which Respondent must shoulder the burden of coming forward to meet the General Counsel's prima facie case notwithstanding that the overall burden of proof of the 8(a)(5) violation rests on General Counsel.

*fn16 See: Hustad Use and Abuse of Ground Rules in Labor Negotiations 15 Air Force JAG Rev. 102 105-6 cited in Yama Woodcraft Inc. supra.

*fn17 I must assume in the absence of General Counsel's assertion or proof to the contrary that the employees were reinstated to unit positions or substantially equivalent positions.

*fn18 The fact that under the ordinary Board rule unfair labor practice strikers' backpay commences to run five (5) days after their unconditional offer to return to work does not relieve the employer of his obligation to "immediately reinstate" them. Newport News Shipbuilding and Dry dock Co. 236 NLRB No. 218. Where the employer "... unduly delays or ignores any unconditional offer to return to work... the 5-day period serves no useful purpose and back pay will commence as of the date of the unconditional offer to return to work." National Car Rental System Inc. 237 NLRB No. 23. Here Respondent told the listed unfair labor practice strikers they were permanently replaced economic strikers which conduct induced the February 3 unfair labor practice strike. Notwithstanding that some of both classes of unfair labor practice strikers returned to work on February 3 and 6 many others did not return to work for many weeks. Respondent by such conduct therefore rejected and unduly delayed respectively the unconditional offer to return to work and the reinstatement of the strikers. Cf. Drug Package Co. 228 NLRB 108 121 ([Then] Member Fanning and Member Jenkins dissenting in part).

*fn19 There is no union assertion that Respondent's position that it was "competitive" in its wage rates in the Atlanta area was untrue.

*fn20 See generally Isis Plumbing & Heating Co. 138 NLRB 716 (1962).

*fn21 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board the findings conclusions and recommended Order herein shall as provided in Section 102.48of the Rules and Regulations be adopted by the Board and become its findings conclusions and recommended Order and all objections thereto shall be deemed waived for all purposes.

*fn22 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals the words in the notice reading "POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD" shall be changed to read "POSTED PURSUANT TO A JUDGMENT OF A UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOARD."