Petition for Review of an Order of the National Labor Relations Board.
Before Pell, Circuit Judge, Markey,*fn* Chief Judge of the U.s. Court of Customs and Patent Appeals, and Wood, Circuit Judge.
Atlas Metal Parts Co., Inc. (Atlas) petitions to review, and the National Labor Relations Board (board) cross-petitions to enforce, the board's order of September 17, 1980. The board found Atlas guilty of violating Sections 8(a) (1), 8(a)(3), and 8(a)(5) of the National Labor Relations Act. We modify.
Atlas is a small shop, employing 35 persons in the preparation of metal parts for other manufacturers. In 1956, it recognized Local 806, Allied Industrial Workers of America, AFL-CIO (Union) as the collective-bargaining representative of its employees. Atlas and Union entered into successive collective-bargaining agreements, the most recent (the 1977 contract) covering March 1, 1977 to March 1, 1978.
Bargaining on a new agreement began February 1, 1978,*fn1 when Union proposed 24 changes in the 1977 contract. On February 15, Atlas countered with 36 proposed changes. During the next six weeks, the parties met five more times, engaging in the give and take of collective bargaining.
All contracts since 1957 contained a union security clause, requiring employees to join the Union and to maintain membership therein after 45 days of employment. Beginning in 1967, the contracts also provided for checkoff of union dues. Atlas wished to eliminate the security and checkoff provisions and to replace them with an affirmative freedom of choice provision concerning Union membership.*fn2
By April 3, Atlas had retreated from 34 of its original demands and the only issues separating the parties were union security and checkoff.
On April 6, the employees struck. The parties met five times during the 13-week strike. At the first meeting, on April 20, Union submitted and Atlas agreed to four new proposals seeking guarantees for striking employees. Union security and checkoff continued, however, to separate the parties.
No progress was made on May 1 and 16. Union increased its wage demand on June 6, and its accident/sickness benefits demand on June 30. Atlas countered by reintroducing several original proposals on June 30.
By letter dated July 11, Union advised it was terminating the strike as of July 14, and offered on behalf of all striking employees to return to work on July 17. Atlas responded that it would recall returning strikers on a seniority basis as work became available. It did not offer to terminate replacement employees to make room for returning strikers.
On August 4, Union wrote to Atlas, requesting the names, dates of hire, and classifications of all active employees, and the names of employees who resigned or were terminated since the strike began. Union's letter included: "The Union further requests to know whether the Company has contracted out work, to whom and for how long. We are further requesting copies of any agreements of subcontracting." Union advanced no reasons for its requests. On August 7, Atlas replied that it would comply with the first two requests. Concerning the third, Atlas said, "with respect to contracting out work, the Company has done this for many years."
The parties met on seven more occasions between August 4, 1978 and February 13, 1979. During that period, Union dropped its proposals for union security and checkoff. Atlas adhered to several of its original proposals.
Between April 3, 1978 and February 6, 1979, Atlas took these unilateral actions on the dates indicated:
1. An April 3, 1978 wage increase of 7 1/2 per cent to all employees;
2. A May 1, 1978 increase in accident and sickness benefit from $84 to $91 per week;
3. An August 1978 work rule change suspension of the third step in the progressive disciplinary procedures for ...