Oklahoma Rendering Co.

In the Matter Of OKLAHOMA RENDERING COMPANY and UNITED PACKINGHOUSE WORKERS OF AMERICA, CIO Case No. 16-C-1268.-Decided January 26, 1948 Mr. Ramey Donovan, for the Board. Messrs. William E. Anderle and John M. Lee, of Chicago, Ill., for the respondent. Messrs. Horace S. Gates and Buck Whittaker, of Oklahoma City, Okla., for the Union. 0 DECISION AND ORDER On February 13, 1947, Trial Examiner Max M. Goldman issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto.' The Trial Examiner also found that the respondent had not engaged in independent violations of Section 8 (1) of the Act as alleged in the complaint, and recommended that those allegations be dismissed.2 Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. On November 13, 1947, the Board, at Washington, D. C., heard oral argument in which the respondent participated; the Union did not appear. The Board has reviewed the rulings of the Trial Exam- iner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the respondent's exceptions and brief, and the entire record in the case, and finds merit in the respondent's exceptions for the reasons hereinafter set forth. ' Section 8 (1), 8 (3), and 8 (5) of the National Labor Relations Act, which the Trial Examiner found were violated , are reenacted in Section 8 (a) (1), 8 ( a) (3), and 8 (a) (5) of the Labor Management Relations Act, 1947 2 Inasmuch as no exceptions have been filed to the Trial Examiner 's recommendation of dismissal and in view of the entire record , we shall adopt his recommendation and dismiss the allegation of the complaint that the respondent engaged in independent violations of Section 8 (1). 75 N. L. R. B., No. 127. 1112 OKLAHOMA RENDERING COMPANY 1113 Under the circumstances disclosed in this record , we do not agree with the Trial Examiner's conclusions that the respondent refused to bargain collectively with the Union within the meaning of Section 8 (5) of the Act or that the respondent discriminated with respect to hire or tenure of employment within the meaning of Section 8 (3). The record discloses that, during the course of an economic strike participated in by 17 of the respondent's employees, the Union, at a conference with the respondent on September 14, 1945, offered to ter- minate the strike provided that all strikers be reinstated . The respond- ent, who had, unbeknown to the Union , replaced 3 of the strikers, countered with a proposal to reinstate those strikers for whom there existed vacancies and to place the remaining strikers on a preferential hiring list. When the Union inquired as to how many of the strikers' jobs had been filled, the respondent refused to supply such informa- tion, asserting in effect that the Union was not entitled to such data. Thereafter, and before September 22, 1945, the respondent hired 7 additional new employees . On September 22, 1945, by agreement with the Union, the respondent reinstated 6 strikers , on the basis of seniority, for the jobs then available , and placed the remaining 11 strikers on a preferential hiring list. During the subsequent 7- to 8-month period , the respondent reinstated , or offered work to the remaining 11 strikers as vacancies occurred. The Trial Examiner found ( 1) that the respondent refused to bar- gain collectively, on September 14, by refusing to impart to the Union the information as to the number of replacements which had been hired, thereby converting the economic strike into an unfair labor practice strike; and (2) that the respondent unlawfully discriminated against the 11 remaining strikers on September 22 by giving employ- ment preference to the 7 new employees who had been hired after the refusal to bargain occurred. Thus, the validity of the Trial Examiner 's findings rests upon the existence of a duty on the part of the respondent to grant the Union's request for information as to the number of employees who had been hired to replace strikers . We are of the opinion that, under the facts in this case, the respondent owed no such duty. By striking, the Union engaged in an economic contest with the respondent. As stated below, the Union offered to terminate the strike provided the respond- ent reinstated the strikers as a group . The respondent was justified in rejecting this proposal inasmuch as it had replaced three of the strikers and jobs were not available for all strikers . Instead, the respondent proposed to reinstate all strikers for whom vacancies existed and to place the remaining strikers on a preferential hiring list. So long as 1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union insisted upon reinstatement of all strikers as a condition to termination of the economic strike, as was the case on September 14, the respondent was under no obligation to supply the requested infor- mation as to the number of employees who had been hired to replace strikers. Thereafter, when the Union agreed to the reinstatement of less than the total number of strikers, it did not renew its request for such information. On the basis of the foregoing, we conclude that the respondent did not refuse to bargain collectively within the meaning of the Act. In the light thereof, we further conclude, contrary to the Trial Examiner, that the respondent did not discriminate against the 11 strikers, inas- much as, so far as appears, 10 of them were lawfully replaced during a strike which began as an economic strike and continued throughout its course as such; no vacancy existed on September 22 for the eleventh striker; and all of them were offered reinstatement as vacancies oc- curred. Accordingly, we shall dismiss the complaint in its entirety. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the complaint against Oklahoma Rendering Company, Oklahoma City, Oklahoma, be, and it hereby is, dismissed. CHAIRMAN HERZOG and MEMBER HOUSTON took no part in the consid- eration of the above Decision and Order. INTERMEDIATE REPORT Mr. Ramey Donovan, for the Board. Messrs. William E. Anderle and John M Lee, of Chicago, Ill., for the respondent. Messrs. Horace S. Gates and Buck Whittaker, of Oklahoma City, Okla., for the Union. STATEMENT OF THE CASE Upon a second amended charge duly filed by United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organiza- tions, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Sixteenth Region (Ft. Worth, Texas), issued its complaint dated April 26, 1946, against Oklahoma Rendering Company, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. A copy of the complaint accompanied by notice of hearing thereon was duly served upon the respondent and the Union. OKLAHOMA RENDERING COMPANY 1115 With respect to the unfair labor practices the complaint alleged in substance that the respondent had (1) on request refused to bargain with the Union as exclusive bargaining representative on certain dates in May, June, July, and September 1945, in a specified unit, although the Union was such representative ; (2) refused to employ in their former or substantially equivalent positions 17 named persons' for various given periods beginning in September 1945, and ending in April 1946, for the reason that they were members of or assisted the Union or engaged in concerted activity; and (3) interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by certain described conduct. In its answer and amended answer the respondent admitted certain facts of commerce, and the Union was certified by the Board as the exclusive bargaining representative in the unit set forth in the complaint, and certain other matters. It, however, denied that it had engaged in any unfair labor practices. Pursuant to notice, a hearing was held at Oklahoma City, Oklahoma, on May 21 and 22, 1946, before Robert M. Gates, Esq , the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its field representatives. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence pertinent to the issues At the close of the hearing, a motion by counsel for the Board to conform the pleadings to the proof with respect to formal matters was granted without objection. Al- though afforded an opportunity to do so, none of the parties argued orally on the record However, both counsel for the Board and the respondent filed briefs. Since the close of the hearing on May 22, 1946, Trial Examiner Gates has resigned as a Trial Examiner and is no longer associated with the Board. Be- cause of his ill health, no Intermediate Report with respect to this hearing had been prepared by Trial Examiner Gates prior to his resignation, and by special order, the undersigned, having read the record and examined all the exhibits offered and received, has been designated by the Chief Trial Examiner to act herein and instructed to prepare and issue this Intermediate Report on the record so made. On the basis of the foregoing and upon the entire record, the undersigned there- fore makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, an Oklahoma corporation, with offices and place of business in Oklahoma City, Oklahoma, is and has been engaged in the general rendering of animal carcasses, and the processing of carcasses, hides, greases, tankage, and other animal materials. Its products exceed $300,000 in value annually, 72 percent of which is shipped to points outside the State of Oklahoma. The respondent admits that it is engaged in commerce within the meaning of the Act. 'S E. Eggleston, Wyser Hotchkiss, Roy Williams, Willie Hawkins, James Grim, Seba (Scher) Chapman, Geoige Graham, Eugene Dobbins, Henry Agnew, James Starks, Climie Grigsby (Grisby), J Johnson, Silas Byrd, B J. Looney, Albert Calhoun, Bill Smith, and Willie Smith. 1116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATION INVOLVED United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, is a labor organization admitting to mem- bership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 1. The appropriate unit and representation by the Union of a majority therein Pursuant to a petition filed by the Union, the Board on February 27, 1945, issued its Decision and Direction of Election 2 in which it found that all production and maintenance employees at the Oklahoma City plant of the respondent including city truck drivers, but excluding clerical employees, "over the road" truck drivers, the manager, assistant manager, plant superintendent, assistant manager's helper, and any other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. On March 14, 1945, pursuant to said Decision and Direction of Election, an election was conducted by the Board among the employees in the appropriate unit. Of the approximately 28 eligible voters, 10 votes were cast for the Union, 5 cast against the Union, and 1 ballot was challenged. On May 9, 1945, the Board issued its Certification of Representatives, certifying the Union as the exclusive representative of all employees in the bargaining unit for the pur- poses of collective bargaining pursuant to Section 9 (a) of the Act. The under- signed, accordingly, finds that the Union was on May 9, 1945, and at all times thereafter has been the exclusive representative of the employees in the above appropriate unit for the purposes of collective bargaining 2. The refusal to bargain Following the certification the Union sought to negotiate a contract with the respondent. In the course of the negotiations as described below, each of the following participated although each was not necessarily present at every bar- gaining, conference. For the respondent there was Jack McCaw, plant manager, and L. R. Hartman, president; for the Union there was Horace S. Gates, Jr., and Buck Whittaker, representative ; A. J. Pitman, district director ; and employees Albert Calhoun, chairman of the bargaining committee, James Grim, Seba (Seber) Chapman, and Carl Eggleston, committeemen. The parties conferred on May 18 and 28, 1945, without reaching any agreement. Other meetings were held on June 7 and 8, and some tentative agreements were reached. On June 28, the parties met again. Gates and Whittaker were not satisfied with the state of negotiations and sought the assistance of the United States Conciliation Service. With the aid of a conciliator on July 13 and 14, five issues were resolved and embodied in an agreement. A stipulation was also entered into showing the position of the parties on the disputed issues, and an understanding was reached to submit a joint application for a wage increase to the National War Labor Board, hereinafter called WLB. On July 16, the application was executed by the parties. 2 60 N L It B. 907. OKLAHOMA RENDERING COMPANY 1117 The next meeting occurred on September 7. The parties conferred most of the day, but accomplished nothing That night Gates reported to the Union members on the state of negotiations, and they voted unanimously to strike the next morning, Saturday. Pursuant to their vote the employees did not report for work Saturday morning. McCaw and Hartman then got in touch with the conciliator, and he arrived on Sunday. The conciliator called Gates the same day and urged him to get the men to return to work explaining that it would be inappropriate to call a meeting of the parties while a strike was in progress. That night Gates called a meeting of the men and they were told of the conciliator's request that they return to work. The men voted to return and did work the next day, Monday, September 10. The parties then resumed their negotiations, and that afternoon a wage agreement was reached. The issues which still remained unresolved were maintenance of membership, check- off, seniority, and grievance procedure. The men, not satisfied with the progress of negotiations, decided that evening not to return to work and carried out their.decision the following day. On September 14, the parties had an informal meeting with certain personnel of the WLB, and an agreement was reached on seniority. Gates then offered to return the strikers to work provided they were all reinstated. Hartman stated, however, that he would reinstate only those strikers for whom there were vacancies and that he would place the remaining ones on a preferential hiring list. When Gates inquired as to how many of the strikers' jobs had been filled, Hartman replied that that was the respondent's business Then Gates asked whether the strikers who returned to work on the respondent's offer would retain their seniority and vacation rights. Hartman replied that he was unable to answer this inquiry at the moment, but that he would inform the Union within a day or so of his position. The next day the respondent told Gates that the men reinstated under the respondent's terms would retain their seniority and vacation rights. On September 19, a formal hearing was had before a regional panel of the WLB At this hearing where the unresolved contract issues were discussed, the parties maintained their respective positions concerning the reinstatement of the strikers, and the respondent refused again on request to supply the Union with information on the number of new employees who had replaced the strikers. No further conference was held concerning the unresolved contract issues. B. The dzsc7inunatory refusal to reinstate Although it does not appear that the respondent had ever given such informa- tion to the Union, it was disclosed at the hearing that on September 12, the day after the employees failed to report for work, the respondent hired three new employees.' As already stated, on September 14, the parties took their re- spective positions regarding reinstatement. Between this meeting on Sep- tember 14 and the WLB panel meeting on September 19, when the parties stated their positions again concerning reinstatement, it was disclosed at the hearing that the respondent hired seven additional new employees." During the morning of September 20, Whittaker and the 17 strikers appeared at the plant. The men indicated their willingness to return to work but left 3 Charles Renmck , B. Stephens , and Ballard. Dennis , Willis, Randall, Lira, Edmundson , Wyatt, and Gowans. 1118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD when McCaw explained that he could not use all of them Later that day, McCaw gave Whittaker a letter which contained an offer to reinstate 6 named men the following days Either on this day or the next, Whittaker protested to McCaw that Calhoun and a certain Willie Sinith, a union steward, should also be reinstated as they were the more skilled employees and had the greatest seniority. McCaw stated that he would never take Willie ^Snuth back, but that he would consult his superior concerning Calhoun. On September 21, McCaw reported back to Whittaker and submitted for his signature a letter addressed to the respondent which showed Calhoun's name listed with the other 6 men as being offered reinstatement. The letter again showed the preferential list arrangement and closed stating that "all matters in dispute . . . relative to reinstatement or rehiring are fully satisfied." Whittaker rejected the offer to reinstate Calhoun upon the condition that the dispute concerning reinstatement be considered satisfied, and as McCaw described it in his testimony, "So we settled on taking those six men back." The 6 men named in the letter of Sep- tember 20 returned to work on September 22. Thereafter, the remaining strikers were individually offered reinstatement and/or reinstated during the period from September 22, 1945, to May 1, 1946 During this period only the employees who had been on strike were hired It appears from the respondent's testimony and a statistical summary it introduced in evidence tending to sup- port the testimony, that the reinstatements took place as vacancies and other business conditions warranted it. C. The alleged interference, restracnt, and coercion Counsel for the Board in support of the allegations-of independent violations of Section S (1) of the Act (that the respondent from about March 1945, has vilified, disparaged, and expressed disapproval of the Union to its employees, has interro- gated its employees concerning their union activities, has urged, solicited, per- suaded, threatened, and warned its employees to refrain from assisting, becoming members of or remaining members of the Union), introduced testimony by employees Albert Calhoun, Willie Smith, James Starks, and James Grim involving Jack McCaw, and Brainard Sloan, plant foreman. According to the testimony of Calhoun and Smith, shortly before the Board election they were called into the office by McCaw and he told them that he was offering additional 12 cents an hour 6 This letter appearing on the respondent's letterhead addressed to the Union is as follows This morning you submitted IT men in a group for reinstatement on an "all or none" basis. Confirming my phone conversation of today with you, while we can not, at this time, use all of the men so submitted , we have enough work for and will reinstate the follow. ing if they report for work at the usual time tomorrow morning S C Eggleston-Cooker W. Hotchkiss--Cooker Roy Williams-Pressman Willie Hawkins-Pressman James Grim-Cut Up Man Sober Chapman--Laborer We have taken the above names from the Seniority list on the basis of the jobs for- merly held by them Should any former skilled or semi-skilled worker who has necessary seniority , desire reinstatement as a laborer, please send him in instead of the laborer above named Those members of the group not mentioned above, will be placed upon a preferred hiring list and you will be notified as openings arise OKLAHOMA RENDERING COMPANY 1119 to abandon the Union. Calhoun also testified that on this occasion McCaw asked who was the head of the Union, who among the employees had joined it, and whether the men would like to have more money. Smith testified as to another incident in which McCaw inquired as to who was the head of the Union. Starks gave testimony that in the latter part of March or April 1945, while he was wear- ing his steward's button in the plant 1lcCaw stated to him, "Ever since you have been wearing that God damn button you think you are smart." Also, "I am going to get rid of you and a lot more of you before it is over " According to Grim's testimony McCaw asked him what he thought of the Union and also told him that he didn't think the "boys" would get very much out of it In addition, Grim testified that Sloan told him that he didn't think much of unions and that he didn't like them The respondent by way of denial adduced testimony from McCaw and Sloan. Upon the record the undersigned is not persuaded that counsel for the Board has sustained his burden of proof and will therefore recommend that the allegations in the complaint relating to the independent violations of Section 8 (1) of the Act be dismissed. D. Conclusions Counsel for the Board, in substance, urges that the respondent was obligated under the Act upon request to bargain with the statutory representative, the Union, concerning reinstatement of the striking employees, and further that the respondent's refusal on request to impart to the Union the information relating to the number of jobs formerly held by the strikers which had been filled, constituted a violation of its duty to bargain regarding reinstatement On the other hand, the respondent takes the position, in part, in its brief. ". that there was not [at any time] any duty upon respondent to bargain collectively over the number of men to be reinstated There appears to be no question that the employees here ceased work as a conse- quence of and in connection with a current labor dispute and remained employees within the meaning of the Act. This is so, whether or not the employees be unfair labor practice strikers' Also, since the striking employees retained their status and since the Union continued as statutory representative, the respondent was legally obligated chi mg the course of the strike to coiitinue to bargain with the Union.' The cases cited in footnote 6 are Instances of refusal to bargain during a strike concerning the terms and conditions of employment, an agreement upon which would have terminated the strike Here there is a difference in the subject matter of the refusal, namely, reinstatement. But is this a difference of substance. The basic purposes of the Act are predicated upon the proposition that negotiations in good faith with the bargaining representative constitute the most effective way of avoiding and resolving industrial conflict.' In the cited cases it was this under- 6 See Jeffrey-De Witt Insulator Co v N L. R B , 91 P (2d) 134 (C C A 4) enforcing 1 N L. R B 618, cert denied 302 U S 731 , Black Diamond S S Corp v N L R. B, 94 F (2d) 875 (C C A 2) enforcing 3 N L R B 84, ceit denied 304 U. S 579, and N L R B v Reed cd Prince Mfg Co . 118 P (2d) 874 (C C A 1) enforcing 12 N. L R B , 944, cert denied 313 U S 595 i See cases cited in tootnote 6 'As the Senate Committee obsei ved about the application of the Act to striking employees To hold otherwise for the purposes of this bill would be to withdraw the Govern- ment from the field at the very point where the processes of collective bargaining 1120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lying principle, namely, that a duty to bargain toward the resolution of the issues leading to the strike continued during the strike, which formed the basis of the decisions. Certainly, in the instant case, where the subject matter sought to be bargained is reinstatement of the strikers, a subject which is directed toward the resolution of the strike itself, there must be a duty to bargain. There remains for consideration whether this duty to bargain concerning the reinstatement of the strikers has been breached by the respondent's refusal to disclose information relating to its personnel needs. We have seen that on Sep- tember 14 the Union offered to return the men as a group. The respondent coun- tered with a proposal in the form of a general principle that it would reinstate only those employees for whom it had employment and would place the remaining ones on a preferential hiring list. The Union inquired as to the number of jobs that had been filled, and the respondent refused to disclose the information. On September 19 the parties merely affirmed their prior positions. The collective bargaining pl ocess however contemplates, among other things, personal persua- sion, the interchange of ideas, timely communication of facts peculiarly within the knowledge of either party and affording the other party the opportunity to modify requests in accordance with the total situation thus revealed e While the strike was in progress on September 14 and 19, the respondent maintained its announced principle of reinstatement-that it would rehire only those for whom it had employment and would place the remaining employees on a preferential hiring list. The Union meanwhile was without any information as to which, if any, of the jobs formerly held by the strikers had been filled. During this period the respondent, nevertheless, hired seven new employees. These facts and the respondent's personnel needs were peculiarly within its knowledge However, on September 14 and again on September 19 it refused to make a disclosure of these facts in derogation of its duty to bargain To hold otherwise would permit the respondent to establish the terms of reinstatement upon a unilateral basis; for not only was the Union denied the opportunity to adjust its position on the basis of the actual facts of the respondent's personnel needs, but also the opportunity to inquire into the factual application of the reinstatement principle offered by the respondent and to assist in the administra- tion of the reinstatement process. The respondent maintains, however, that "The refusal to stipulate the number of replacements hired during the strike was clearly based upon the refusal of the union to recede from its position that all strikers must be reinstated and replacements discharged . . " It will be noted that this was the initial offer by the Union on reinstatement, and like the usual opening bid in bargaining, it represented the bidder's optimum demand. In addition, the respondent's refusal to disclose the facts effectively prevented the Union, as representative of all the employees in the unit, from modifying its offer To follow the respondent's view would require the Union to recede from its offer and to accept blindly the respondent's counterproposal before learning the full import of the counter- proposal and vest control of the reinstatement process in the hands of the has reached a critical stage and where the general public interest has mounted to its highest point Sen. Rep. 573, 74th Cong , l st sess , p 6 'See Matter of Singer Manufacturing Company. 24 N L R B 444. enf'd 119 F (2d) 131 (C C A 7), cert denied 313 U S 595. Matter of The Shevwln Williams Company, 34 N L R. B 651, enf'd 130 F (2d) 255 (C C A 3) , Matter of Aluminum Ore Company, 39 N L R B 1286, enf'd as modified 131 F (2d) 485 (C C A. 7) , and Matter of J II -Allison d Co , 70 N L R B 377. OKLAHOMA RENDERING COMPANY 1121 respondent for its unilateral determination and effectuation. The undersigned finds that the respondent's refusal to disclose the requested data was based on its own position which it, here urges as being correct, namely, that it was under no duty to bargain at any time regarding reinstatement. V Lastly, the respondent contends that this material in the hands of the Union "would have simply furnished the union with better information as to whether it could yet win the strike." Assuming without deciding that this is a relevent consideration, it should be pointed out that although this information could have been used by the Union to determine strike strategy, the record does not show that the Union sought this data for that purpose, or that it desired to continue the strike at all. On the contrary, the record shows that the request for this material came after the Union had announced its intention to abandon the strike and that it was in response to and for the purpose of making specific the respondent's counteroffer which, as has been pointed out, was proposed in the terms of a general principle. Further, on September 21, 2 days after the WLB panel hearing where it was again refused the information, the Union accepted the respondent's offer to reinstate 6 of the strikers on the respondent's mere statement that it could at that time employ only 6 of the 17 strikers. Accordingly, the undersigned finds that by refusing to impart the information requested by the Union concerning the number of positions which had been filled during the strike; the respondent on September 14, 1945, and thereafter, refused to bargain collectively with the Union as exclusive representative of its employees in an appropriate unit thereby prolonging the strike and interfering with, restrain- ing, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. As indicated above, after all the strikers appeared at the plant for work on September 20, McCaw handed Whittaker a letter stating that the respondent was willing to reemploy certain six men. Whittaker attempted to persuade McCaw to take back Smith and Calhoun also. McCaw rejected consideration of Smith's case, but undertook to reinstate Calhoun on condition that the Union consider the controversy concerning reinstatement as "fully satisfied." Whittaker de- clined this, proposal, but later capitulated to the respondent's position as con- tained in its letter of September 20. While negotiating on the basis of the re- spondent's offer during September 20 and 21 for the reemployment of only some of the strikers, Whittaker did not mention the Union's condition that all the strikers be reinstated, which it had made on September 14 in its original otter to return to work. Although the record does not show an express unconditional offer to return to work, as such, the undersigned finds, in view of the Union's treating in this manner the, reinstatement of less than the entire group of strikers, the Union's urging the reinstatement of additional employees, the Union's ac- cepting the reinstatement of the six employees for whom the respondent stated it had immediate employment, and particularly in view of the Union's acquiescing in a mere preferential hiring arrangement for the other employees, that the Union on September 21 abandoned its condition on reinstatement and abandoned the strike, and there remained its continuing offer to return the men to work. Upon this abandonment of the strike and upon the existing unconditional offer to return to work, the respondent had duties under the Act toward the unfair labor practice strikers. In this situation the ordinary right of an em- ployer to select his employees is qualified as a result of the unfair labor prac- tices causing or prolonging the strike, and not only are the striking employees entitled to reinstatement upon application, but also any refusal by the employer 1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of their request for reinstatement subjects him to liability for loss of wages sus- tained by virtue of the refusal.10 The respondent, however, refused to reinstate the employees it stated it would place on the preferential hiring list, taking the position that it clod not have sufficient work to employ them while continuing to employ the seven men it hired subsequent to September 14, although it was obligated on September 22, to re- instate those men even though this might have meant replacing the seven em- ployees hired subsequent to its violation of the Act" Upon the basis of the foregoing, the undersigned finds that the respondent on September 21, 1945, and thereafter, discriminated in regard to hire and tenure of employment of the employees it undertook to place on a preferential hiring list on September 21 and named in Appendix A, for the reason that they were members of or assisted the Union or engaged in concerted activity, thereby dis- couraging membership in a labor organization, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act 1V THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section 111, above , occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce V. THE REMEDY Since it has been found that the respondent has engaged in certain unfair labor practices, the undersigned will recommend that it cease and desist there- from and take certain affirmative action designed to effectuate the policies of the Act. The undersigned having found that the respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, he will recommend that the respondent, upon request, bargain collectively with the Union. The undersigned having also found that the respondent refused reinstatement to the employees named in Appendix A, in violation of the Act, he will recommend that these employees be made whole for the loss of wages sustained by them by reason of the respondent's delay in reinstating them occasioned by the preference accorded the seven employees hired subsequent to September 14 'z The computa- tion for wages so lost, it is recommended, shall be made in the following manner: (1) A determination shall be made of the total number of positions by classification which constituted the respondent's complement on September 22 (2) Then the number of positions by classifications which were filled on or prior to September 14, and the number of positions by classification filled on September 22, pursuant to the settlement agreement, shall be sub- tracted (3) The remaining positions shall thereupon be distributed among 10 See Black Diamond S. S Corp v N L R B, 94 F. ( 2d) 875 ( C C A 2 ) enforcing 3 N L R B 84, cert denied 304 U. S. 579 , and N L R B V. Remington Rand Inc . 94 F. (2d) 862 (C C A 2) enforcing 2 N L R B 626, cert denied 304 U S 576 11 See cases cited in footnote 10 12 For a related remedy see, Matter of Acme Air Appliance Company, Inc, 10JN L R B. 1385, enf'd as modified 117 F. (2d) 417 (C C A 2). OKLAHOMA RENDERING COMPANY 1123 the employees the 1 espondent undertook to place on a preferential list and named in Appendix A as if the respondent were on September 22 reinstating its employees to complete its complement to meet its business needs in accordance with its usual practice and in conformity with its practice regarding seniority, either to their former or substantially equivalent positions or, if these positions were not available, to the positions for which each had been qualified It is recommended that the respondent shall make payment to each of the workers it would have so employed of the amount each would have earned as wages from September 22, to the date each actually had been offered reinstatement. It is further recommended that in the event that any of the employees the respondent undertook to place on a preferential hiring list and named in Appendix A would not have been so reinstated on September 22, pursuant to the above method, it shall be deemed that each of those remaining had been placed on a preferential hiring list on that date. and the respondent shall make payment to each in this group of the amount each would have earned as wages from the date each would have been reached on that list for rehiring as employment became available to the date each actually had been offered reinstatement In each case, however, it is recommended that an allowance shall be made for net earnings," if any, during the period for which a back pay award is recommended The undersigned having further found that the respondent has on September 22 in conformity with the Act reinstated S C. Eggleston, Wyser Hotchkiss, Roy Williams, Willie Hawkins, James Grim, and Seba (Seber) Chapman, he will recommend that the complaint be dismissed as to them. Also since the undersigned has dound that the respondent has not violated the independent provisions of Sections 3 (1) of the Act, he will further recom- mend that the corresponding allegations of the complaint be dismissed. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2 All production and maintenance employees at the Oklahoma City plant of the respondent, including city truck drivers, but excluding clerical employees, "over the road" truck drivers, the manager, assistant manager, plant super- intendent, assistant manager's helper, and any other supervisory employees with authoiity to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively ieconimend such action, constitute a unit appropiiate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act 3. United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, was on May 9, 1945, and at all times there- after has been the exclusive representative of all the employees in the aforesaid "BY "net earnings" is meant earnings less expenses, such as for transportation, room, and board, incurred by an employee in connection with obtaining woik and working else- where than for the respondent , which would not have been incurred but for his unlawful refusal of reinstatement and the consequent necessity of his seeking employment elsewhere. See lltattei of Crossett Lumber Company, 8 N L R. B 440. monies received for work performed upon Petdeial, State, county, municipal, or other work-relief projects shall be considered as earnings Sec Xepublie Steel Corporation v N L R B, 311 U S 7 766972--' 8-vol 75--72 1 1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act - 4. By refusing on September 14, 1945, and at all times thereafter, to bargain collectively with United Packinghouse Workers of America, Local 13-A, affil- iated with the Congress of Industrial Organizations, as the exclusive representa- tive of all its employees in the appropriate unit, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (5) of the Act. 5 By discriminating in regard to the hire and tenure of employment of the employees named in Appendix A, thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act 7 The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 8 The respondent has not discriminated in regard to the hire and tenure of employment of S C. Eggleston, Wyser Hotchkiss, Roy Williams, Willie Hawkins, James Grim, and Seba (Scher) Chapman. 9 The respondent has not engaged in any independent violations of Section 8 (1) of the Act RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, and upon the entire record in the case, the undersigned recommends that the respondent, Oklahoma Rendering Company, Oklahoma City, Oklahoma, and its officers, agents, successors, and assigns shall : 1 Cease and desist from : (a) Refusing to bargain collectively with the United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all production and maintenance employees at the Oklahoma City plant of the respondent, including city truck drivers, but excluding the clerical employees, "over the road" truck drivers, the manager, assistant manager, plant superintendent, assistant manager's helper, and any other supervisory employees with authority to hire, promote, discharge, disci- pline. or otherwise effect changes in the status of employees or effectively recommend such action, with respect to rates of pay, wages, hours of employment and other conditions of employment ; (b) Discouraging membership in the above-named or any other labor organi- zation by refusing reinstatement to any of its employees or in any other manner discriminating in regard to their hire or tenure of employment or any term of condition of employment; and (c) In any other manner interfering with the efforts of United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, to bargain collectively with it on behalf of the employees in the aforesaid appropriate unit 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a),Upon request bargain collectively with United Packinghouse Workers of America, Local 13-A, affiliated with the Congress of Industrial Organizations, OKLAHOMA RENDERING COMPANY 1125 as the exclusive representative of all its employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (b) Make whole, in the manner set forth in "The remedy," the employees named in "Appendix A" for any losses of pay they have suffered by reason of the respondent's discrimination against them ; (c), Post at its plant at Oklahoma City, Oklahoma, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the respond- ent to insure that said notices are not altered, defaced, or covered by any other material ; and (d) Notify the Regional Director for the Sixteenth Region, in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the respondent has taken to comply herewith. It is also recommended that the complaint, insofar as it alleges that the re- spondent has violated the provisions of Section 8 (3) with respect to S. C. Eggleston, Wyser Hotchkiss, Roy Williams, Willie Hawkins, James Grim, and Seba (Seber) Chapman, and the independent provisions of Section 8 (1) of the Act, be dismissed. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Direc- tor in writing that it has complied with the foregoing recommendations, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, to- gether with the original and four copies of a brief in support thereof ; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall hle a copy with the Regional Director. Proof-of service on the other parties of all papers filed with the Board shall be promptly made as re- quired by Section 203 65. As further provided in said Section 203.39, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. MAX M GOLDMAN, Trial Exanaincr. Dated February 13, 1947. 1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A NOPICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL BARGAIN collectively upon request, with the UNITED PACKINGHOUSE WORKERS OF AIIrERIcA, LOCAL 13-A, affiliated with the CONGRESS OF INDUSTRIAL ORGANIZATIONS, as the exclusive representative of all the employees in the bargaining unit described below with respect to rates of pay, hours of employment or other conditions of employment; and, if an understanding is leached, embody such understanding in a signed agreement. The bargaining unit is: All production and maintenance employees including city truck drivers, but excluding clerical employees, "over the road" truck drivers, the manager, assistant manager, plant superintendent, assistant manager's helper, and any other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action. WE WILL Nor discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any labor organization. WE WILL make whole for any loss of pay suffered by the following employees as a result of the discrimination: George Graham Silas Byrd Eugene Dobbins B J Looney Henry Agnew Albert Calhoun James Starks Bill Smith Climie Grigsby (Grisby) Willie Smith J Johnson WE WILL NOT in any manner interfere with the efforts of the above-named union to bargain collectively with us as exclusive representative of all our employees in the above-described appropriate unit OKLAHOMA RENDERING COMPANY, Employer Dated ----------------------------- By ---------------------------------- (Representative) (Title) This notice must remain posted for sixty (60) days from the date of posting, and must not be altered, defaced, or covered by any other material.