Excavation-Construction

EXCAVATION-CONSTRUCTION 649 Excavation-Construction, Inc. and Drivers, Chauf- feurs and Helpers Local Union No. 639, a/w In- ternational Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Cases 5-CA-9678 and 5-CA-9813 March 26, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE On July 20, 1979, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel, the Charging Party, and Respondent filed excep- tions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,1 and conclusions of the Administrative Law Judge and to adopt his recommended Order, with the additions and modifications described below.2 1. The Administrative Law Judge concluded that Respondent did not violate Section 8(a)(5) and (1) of the Act by unilaterally implementing a change in the rate of pay for Saturday work on its A-14 project based on his finding that an impasse in bar- gaining between Respondent and the Union had occurred at the time the change was implemented. The General Counsel and the Union except to the I Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. I In par. (c) of his recommended Order, the Administrative Law Judge used the broad cease-and-desist language "in any other manner." However, we have considered this case in light of the standards set forth in Hickmorr Foods, Inc., 242 NLRB No. 177 (1979), and have concluded that a broad remedial order is inappropriate inasmuch as it has not been shown that Respondent has a proclivity to violate the Act or has en- gaged in such egregious or widespread misconduct as to demonstrate a general disregard for the employees' fundamental statutory rights. Ac- cordingly, we shall use the narrow injunctive language, "in any like or related manner," in our Order. In par. 2(b) of his recommended Order, the Administrative Law Judge provided that the employees who participated in the unfair labor practice strike which began on August 14, 1978, shall be made whole in the manner set forth in the section of his Decision entitled "The Remedy." In "The Remedy," however, he failed to provide that, if Respondent has al- ready rejected, or hereafter rejects, unduly delays, or ignores any uncon- ditional offer to return to work or attaches unlawful conditions to its offer of reinstatement, the 5-day period for offering reinstatement serves no useful purpose and backpay will commence as of the unconditional offer to return to work in accordance with our Decision in Newport News Shipbuilding and Dry Dock Company, 236 NLRB 1637 (1978). We shall include such appropriate language in our Order. 248 NLRB No. 81 Administrative Law Judge's conclusion, contend- ing that no impasse in collective bargaining had oc- curred at that time. We agree. The Union and Respondent participated in nine bargaining sessions between April 28 and August 26, 1978. The Union was represented principally by its president, Daniel George. Respondent had var- ious representatives at the negotiating sessions but, following the session on May 31,3 Attorneys Siegel and Boardman acted as Respondent's principal spokesman. Prior to the 1978 negotiations for a new contract, Respondent had belonged to a mul- tiemployer bargaining group called Construction Contractors Council, Inc., which had negotiated and executed a contract with the Union, effective August 1, 1975, through April 30, 1978. That con- tract provided, inter alia, for premium pay for Sat- urday work. Respondent withdrew from the Con- struction Contractors Council prior to the expira- tion of the 1975-78 agreement, but did not join an- other multiemployer group, Capitol Area Trucking Association (CATA), which was formed by some of the other employer members of the Construction Contractors Council who had withdrawn at the same time as Respondent. As noted by the Admin- istrative Law Judge, the almost concurrent negotia- tions between the Union and CATA are relevant to those between Respondent and the Union be- cause of the congruity of the issues discussed and the virtual identity of the individuals who repre- sented the negotiating parties. Additionally, the CATA agreement was frequently treated as a point of reference by Respondent and the Union in the course of their negotiations. The first proposed CATA contract, agreed to by the Union's negotiators on May 19, 1978, but sub- ject to ratification by the Union's membership, pro- vided, inter alia, for a Saturday makeup day. This meant that employees would receive premium pay for Saturday work only if they had worked more than 40 hours during the preceding week or worked more than 8 hours on the makeup day. The makeup day was a major subject of discussion be- tween the Union and CATA, and its inclusion in the agreement was ultimately the reason that the Union's membership rejected the first proposed CATA agreement. Subsequently, CATA aban- doned its demand for a Saturday makeup day and on June 23, following membership ratification, CATA and the Union executed an agreement which was identical to the rejected agreement, except that it provided for premium pay for all Sat- urday work. The subject of the Saturday makeup day was raised by Respondent at its May 31 negotiating ses- 3 Unless othewise indicated, all dates hereinafter refer to 1978. E X C A V A TI O N -C O N S T R U C TI O N 649~~~~~~~~~~~~~~~~~~ 650 DECISIONS OF NATIONAL IABOR RELATIONS BOARD sion with the Union. However, since at that time the CATA agreement still contained a provision for a Saturday makeup day, further discussion of that issue was deferred by Respondent and the Union until the CATA agreement was submitted to the membership for ratification. On July 6, subse- quent to the execution of the CATA agreement, Respondent sent a telegram advising the Union that, beginning on July 15, it would no longer pay premium pay for Saturday work on its A-14 job. Respondent suggested that the Union call if it had any questions. On July 11, at the next meeting of the parties, Union Representative George brought up the telegram and Saturday pay issue. Respon- dent's representative, Siegel, indicated that Respon- dent would accept an agreement identical to the first proposed CATA agreement, including the Sat- urday makeup day for the A-14 project. George reminded Siegel that it was unlikely that Respon- dent's employees would approve the contract with a makeup day inasmuch as the CATA employees had rejected it. Siegel explained Respondent's par- ticular circumstances to George. George responded that he would take Respondent's proposal back to the employees for a vote, but told Siegel that the employees were not going to "buy it." Siegel then inquired whether there were any corresponding concessions Respondent could give in exchange for the makeup day. George said that "I couldn't think of anything . . . that I thought our people would trade off the make up day for." On July 13, George sent Respondent a letter protesting its intended change in Saturday pay and informing it, inter alia, that the Union would con- duct a referendum among Respondent's employees concerning Respondent's contract proposal, and would request that employees strike if Respondent implemented the Saturday makeup day. Respon- dent replied by telegram on July 14 in which it mischaracterized the Union's position by stating that the Union "had refused" to offer a corre- sponding concession in exchange for the Compa- ny's right to pay straight time on Saturday at the A-14 project and that the Union had "indicated that it is not agreeable to further negotiations on these issues." Respondent further declared that the parties were at an impasse and that, consequently, it reserved the right to institute its "final offer" of the July 11 negotiating session. Respondent's ropo- sal for the Saturday makeup day was rejected by a vote of its employees at a union meeting on the night of July 14. On Saturday, July 15, Respondent put in effect the Saturday makeup day. The Administrative Law Judge found that as of July 11 the parties were apart on the issue of the Saturday makeup day only, that they had fully ex- plored the issue, and were unable to find any basis for resolving their differences. Accordingly, he concluded that the parties were at an impasse and that Respondent's institution of the Saturday makeup day was lawful. A genuine impasse in negotiations exists when, despite the parties' best efforts to achieve an agree- ment, neither party is willing to move from its po- sition.4 Until the collective-bargaining process had been exhausted, no impasse can occur. 5 We find that the collective-bargaining process had not been exhausted here when Respondent instituted the Sat- urday makeup day. In this regard, Respondent clearly had a fixed determination to cease giving premium pay for Sat- urday work on the A-14 job when it commenced work there on July 15, regardless of the status of its negotiations with the Union. Indeed, the bid through which Respondent acquired that job, which was prepared in May, was based on the as- sumption that Saturday would be a makeup day. Similarly, the contract which Respondent negotiat- ed with the Laborers Union in May, which includ- ed both a Saturday makeup day and a "most fa- vored nation" clause, must have anticipated corre- sponding provisions in Respondent's contract with the Union here. Moreover, although as the Admin- istrative Law Judge concluded, the parties fully ex- plored the Saturday makeup day question by the July 11 negotiating session, George did not reject the Saturday makeup proposal at that time. Rather, while stressing the improbability of employee ratifi- cation of such a provision, George agreed to take the provision back to the employees for a vote. Significantly, this vote had not yet been taken when Respondent announced in its July 14 tele- gram that the parties were at an impasse. Respondent does not claim that it had been ad- vised by the Union of the employees' rejection of the proposal at the time that it implemented the change. Instead, Respondent merely assumed that the employee vote promised by George would be an empty gesture and that it would have no impact on the Union's negotiating posture. Such assump- tions are not an adequate substitute for collective bargaining. In view of the foregoing, we conclude that no impasse existed when Respondent unilater- ally implemented the Saturday makeup day at the A-14 jobsite, and that, by such conduct, it violated Section 8(a)(5) and (1) of the Act. 6 4 Dust-Tex Service, Inc., 214 NLRB 398, 405 (1974). 5 Mechanical Contractors Association of Newburgh, 202 NLRB 1, 3 (1973). 6 We further find that the strike herein was caused, in part, by Respon- dent's unlawful institution of this unilateral change Accordingly, we rely on this additional finding in adopting the Administrative Law Judge's conclusion that the strike herein was an unfair labor practice strike from Continued EXCAVATION-CONSTRUCTION, INC. 651 2. Prior to the strike called by the Union on August 14, Respondent paid its drivers $8.30 per hour in addition to contributions totaling $.84 per hour to the health and welfare and pension funds. This amounted to a total hourly labor cost of $9.14. Upon commencement of the strike, Respondent unilaterally began paying $9.14 per hour straight wages, without any contributions to the health and welfare and pension funds, to strike replacements and to any drivers in the unit who did not join the strike. The Administrative Law Judge found that, contrary to the allegation in the complaint, Re- spondent by such conduct did not institute an un- lawful unilateral wage increase. Rather, he con- cluded that drivers' wages remained the same and had merely changed form. We disagree. Admittedly, Respondent's hourly labor costs both prior to and after the strike were the same. The fact remains, however, that after the strike commenced Respndent's employees received an ad- ditional amount in straight wages in lieu of pay- ments to the union funds. It is well established that such a change in the manner of pay constitutes a wage increase and that such a unilateral increase is in derogation of a union's status as the employees' bargaining representative, and violative of Section 8(a)(5) and (1) of the Act. 7 In view of our conclusion that the granting of $9.14 per hour to strike replacements and drivers working after the commencement of the strike was unlawful, we additionally find that Respondent vio- lated the Act by offering such increased wages to picketing employees if they returned to work and abandoned the strike. In this regard, the Adminis- trative Law Judge credited employee Williams that, on or about August 19, "one of the pickets asked [Respondent's officials] if they returned what the wages would be," and that Lyons, one of Re- spondent's executive officers, responded that the "pay would be $9.14 with all the money going into the man's pocket." Lyons further stated, in reply to another employee's question as to fringe benefits, that there would be none and that "they would get all their pay in their pockets." It is well established that such an economic inducement to abandon a strike interferes with the employee's right to choose whether to engage in protected activity.8 its inception. See, e.g.. C & E Stores, Inc.. C d E Supervalue Division, 221 NLRB 1321 (1976). * See, e g. Erich R. Weber and Bernadine T Weber, Co-Partners, d/b/a Weber's Bakery, 211 NLRB 1, 14 (1974), and Portage Realty Corporation, 184 NLRB 28, 33-34 (1970). 8 Smith's Complete Market of Tulare County,. Inc., d/b/a Smith's Com- plete Market, 237 NLRB 1424 (1978); Fetzer Broadcasting Company, 227 NLRB 1377, 1380 (1977) Accordingly, we find that Respondent, through Lyons, violated Section 8(a)(1) of the Act.9 The Administrative Law Judge concluded that Respondent violated Section 8(a)(1) on August 12 by General Manager Campbell's interrogation of employee Gray, a union shop steward, concerning what would transpire at an upcoming union meet- ing at which a strike vote ultimately was taken. We agree with this conclusion. In so doing, however, we specifically note that Campbell's own testimony as to his reasons for meeting with Gray included the broad purpose "to find out what the Union was voting on." Furthermore, Campbell gave no assur- ances to Gray against reprisals. The Board has long held that a supervisor's interrogation of employees concerning prospective union meetings without such assurances is coercive.' ° Accordingly, we find that in the circumstances here Gray's interro- gation by Respondent was unlawful. 1 AMENDED CONCLUSIONS OF LAW Substitute the following for Conclusion of Law 2 and renumber the subsequent Conclusions of Law accordingly: "2. By reason of the foregoing and by reason of the unlawful interrogation of employee William Gray by General Manager Larry Campbell on August 12, 1978, and by the unlawful offer of in- creased wages to striking employees by Respon- dent's executive officer, Timothy Lyons, on or about August 19, 1978, Respondent has interfered with, restrained, and coerced employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. "3. By refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit by, in July 1978, unilaterally changing the rate of pay for Sat- urday work without bargaining to impasse about such change, and by, in August 1978 and there- after, unilaterally granting a wage increase to em- ployees, Respondent has thereby engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act." I Although the complaint specifically alleged that Respondent's gener- al manager, Campbell, rather than Lyons, made such an unlawful offer to picketing employees, the matter was fully litigated and clearly falls within the scope of the complaint. 'O See, e.g. Production Plating Company, 233 NLRB 116, 120 (1977); Dresser Industries, Inc., 231 NLRB 591, 594 (1977). "i Even assuming arguendo, as urged by Respondent, that in some cir- cumstances an employee's status as a union steward might justify inquir- ies with the limited purposes of ascertaining the probability of a strike. Campbell's interrogation clearly was beyond such a limited scope. 652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Excavation-Construction, Inc., Bladensburg, Mary- land, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging or otherwise discriminating against employees in regard to their hire, tenure of employment, or other terms and conditions of their employment in order to discourage membership in Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- ica, or any other labor organization, or to discour- age participation in a lawful strike. (b) Coercively interrogating employees concern- ing their union activities. (c) Offering economic inducements to employees to abandon a strike. (d) Refusing to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit by unilateral- ly changing the rate of pay for Saturday work without bargaining to impasse about such change, and by unilaterally granting wage increases to em- ployees, except that nothing contained herein shall be construed as requiring Respondent to revoke any wage increase or other benefits which it has heretofore granted. (e) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Offer Ernest Wellons, Milton Suggs, and James Robinson immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, and make each of them whole for any loss of earnings he may have suffered by reason of Respondent's unlawful dis- crimination against him in the manner set forth in the section of this Decision entitled "The Remedy." (b) Upon application, offer immediate and full re- instatement to their former positions or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges previously enjoyed, to all those employees who participated in the strike which began on August 14, 1978, and who have not already been reinstated, dismissing, if neces- sary, any persons hired as replacements by Respon- dent on and after August 14, 1978. If sufficient jobs are not available for those employees, they shall be placed on a preferential hiring list in accordance with their seniority or other nondiscriminatory practices theretofore utilized by the Company, and they shall be offered employment before any other persons are hired. Respondent shall also make whole these employees for any loss of earnings they suffered by reason of Respondent's refusal, if any, to reinstate them, within 5 days of their un- conditional request, with interest thereon to be computed in accordance with Florida Steel Corpo- ration, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). If Respondent herein has already rejected, or hereaf- ter rejects, unduly delays, or ignores any uncondi- tional offer to return to work or attaches unlawful conditions to its offer of reinstatement, the 5-day period serves no useful purpose and backpay will commence as of the unconditional offer to return to work. (c) Upon request, bargain collectively with the Union as the exclusive bargaining representative of the employees in the appropriate unit with respect to the rate of pay for Saturday work and wage in- creases. (d) Make the employees whole for any loss of earnings they may have suffered by reason of Re- spondent's unilateral change in the rate of pay for Saturday work with interest thereon to be comput- ed in accordance with Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). (e) Preserve and, upon request, make available to the Board or its agents, for examination and copy- ing, all payroll records, social security payment re- cords, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its places of business copies of the at- tached notice marked "Appendix." 12 Copies of said notice, on forms provided by the Regional Di- rector for Region 5, after being duly signed by Re- spondent's representative, shall be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that '2 In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursu- ant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Hoard" EXCAVATION-CONSTRUCTION INC. 653 said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discharge or otherwise dis- criminate against our employees in regard to their hire, tenure of employment, or any term or condition of their employment in order to discourage membership in Drivers, Chauffeurs and Helpers Local Union No. 639, a/w Inter- national Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America, or any other labor organization, or to discour- age participation in a lawful strike. WE WILL NOT coercively interrogate em- ployees concerning their union activities. WE WILL NOT offer our employees econom- ic enducements to abandon a strike. WE WII.L NOT refuse to bargain collectively with the Union as the exclusive bargaining representative of the employees in the appro- priate unit by unilaterally changing the rate of pay for Saturday work without bargaining to impasses about such change, and by unilateral- ly granting wage increases to employees, except that we shall not be required to revoke any wage increase or other benefits which we have heretofore granted. WE WII.L NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed them in Section 7 of the Act. WE WILL offer Ernest Wellons, Milton Suggs, and James Robinson immediate and full reinstatement to their former jobs or, if such jobs no longer exist. to substantially equivalent positions, without prejudice to their seniority and other rights and privileges previously en- joyed and WE WILL make each of them whole for any loss of earnings he may have suffered by reason of our unlawful discrimination against him, with interest. WE WILL, upon application, offer immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges previ- ously enjoyed, to all our employees who have engaged in the strike which began on August 14, 1978, and who have not already been rein- stated, dismissing, if necessary, any employees hired as replacements since the beginning of the strike. if insufficient jobs are available for these employees, they shall be placed on a preferential hiring list and they will be offered employment before any other persons are hired for such work. WE WILL make such ap- plicants whole for any loss of earnings they may suffer by reason of any refusal on our part to reinstate them beginning 5 days after their application for reinstatement until the date of our offer of reinstatement, with inter- est. WE WILL, upon request, bargain collectively with the Union as the exclusive bargaining representative of the employees in the appro- priate unit with respect to the rate of pay for Saturday work and wage increases. WE WILL make the employees whole for any loss of earnings they may have suffered by reason of our unilateral change in the rate of pay for Saturday work, with interest. EXCAVATION-CONSTRUCTION, INC. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, ADMINISTRATIVE LAW JUDGE: These proceedings, consolidated by an order dated Octo- ber 25, 1978, were heard in Washington, D.C., on Febru- ary 5, 6, 8, 9, and 12, 1979. The complaint in Case 5- CA-9678, based on a charge and amended charges of unfair labor practices respectively filed on July 20 and August 22 and 31, 1978, by Drivers, Chauffeurs and Helpers Local Union No. 639, a/w International Broth- erhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, alleges that Excavation-Construction, Inc., herein called the Compa- ny, has engaged in and is engaging in conduct constitut- ing unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. The complaint in Case 5-CA-9813, based on a charge of unfair labor practices filed by the Union on August 28, 1978, alleges that the Company has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act. Re- spondent filed timely answers to the complaints, denying that it had committed the alleged unfair labor practices, but admitting the jurisdictional allegations of the com- plaints. Following the close of the hearing, each of the parties filed a brief, each of which has been carefully considered. Upon the entire record in these proceedings, and from my observation of the witnesses and their demeanor, I make the following: 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE UNFAIR LABOR PRACTICES A. The Issues The Company does heavy construction work in the metropolitan Washington area and in connection there- with operates a fleet of trucks. For more than 10 years the Union has been the collective-bargaining representa- tive of the Company's truckdrivers, and the Company and the Union have been parties to a series of collective- bargaining agreements covering these employees. The most recent agreement expired on April 30, 1978, and has not been renewed, although the parties have engaged in discussions directed towards the negotiation of a su- ceeding agreement. The complaint in Case 5-CA-9678 alleges that: (1) Since July 15, 1978,' Respondent has failed and re- fused "to bargain in good faith with the Union by unilat- erally implementing a change in the pay rate for Satur- day work, a term and condition of employment, at a time when negotiations on this subject were continuing." (2) On July 17 Respondent discriminatorily discharged its employees Ernest Wellons, Milton Suggs, and James Robinson and discriminatorily suspended its employee Johnnie Bunn "because they engaged in a protected con- certed refusal to work." (3) By the foregoing conduct and by the conduct of General Manager Larry Campbell, who, on July 14, threatened employees with discharge "should they engage in a protected work stoppage," Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them in Section 7 of the Act. (4) A strike by Respondent's truckdrivers, begun on August 14, was caused and has been prolonged by the foregoing unfair labor practices. The complaint in Case 5-CA-9813 alleges that: (1) Between August 12 and 26 the Company engaged in conduct described in subparagraphs (a) through (j) of paragraph 6, which constituted violations of Section 8(a)(1). (2) Respondent has refused to bargain in good faith with the Union (a) by "unilaterally, and without notice to or bargaining with the Union, granting a wage in- crease for employees in excess of any offer made to the Union during contract negotiations"; and (b) by the con- duct set forth in paragraph 6 of the complaint. (3) The strike of Respondent's truckdrivers which began on August 14 was caused and has been prolonged by the foregoing unfair labor practices. Not covered by the allegations of the complaints and not litigated at the hearing are whether the Company en- gaged in negotiations with the Union without any good- faith intention of reaching an agreement and whether, since August 14, Respondent unlawfully denied reinstate- ment to striking employees. During the tmes material to these proceedings the persons listed below were representatives of the parties: Unless otherwise indicated all dates refer to calendar year 1978. For the Company: James W. Lyons-president; Timo- thy K. Lyons-an executive officer; Larry A. Camp- bell-general manager; Robert P. Jenkins-assistant gen- eral manager; Donald L. Davidson-general superinten- dent; Walter Jones, Jr.-truck superintendent; Earl Jones-truck foreman; Paul Rhodes-attorney; Allen G. Siegel-attorney; Stephan J. Boardman-attorney. For the Union: Daniel George-president; James I. Williams-vice president and business agent; John Cat- lett-treasurer; William Pinckney-business agent; Wil- liam Gray-shop steward; Pat Shaw-attorney. B. The Collective-Bargaining History The Company, which does general hauling and exca- vation work, at the times relevant hereto employed ap- proximately 65 drivers in the collective-bargaining unit represented by the Union. The Company has been party to four contracts with the Union during the past II years. The most recent agreement was effective from August 1, 1975, to April 30, 1978. During the term of that contract, the Company was a member of the Con- struction Contractors Council, Inc., a multiemployer as- sociation, which negotiated and executed the 1975-78 agreement on behalf of its members. The contract, among other things, provided that beginning September 1, 1977, the hourly wage rate for the category of drivers employed by the Company would be $8.30 and, in addi- tion, the Company would contribute 41-1/2 cents per hour to a health and welfare fund and 42-1/2 cents per hour to a pension fund for a total hourly labor cost of $9.14. The agreement also provided that all time worked on Saturdays would be paid at one and a half times the regular established rate of pay. Prior to the expiration of the 1975-78 agreement, cer- tain employer-members, including the Company, with- drew from Construction Contractors Council, Inc. Seven of these employers formed another multiemployer collec- tive-bargaining organization known as the Capitol Area Trucking Association, herein referred to as CATA, which on behalf of its members has negotiated an agree- ment with the Union to succeed the agreement that ex- pired on April 30. The Company, however, has not joined CATA and has conducted its negotiations with the Union separately. Appropriate notices were served on the Company by the Union so that their agreement expired on April 30 in accordance with its terms, and the strike which began on August 14 did not violate the time and notice provisions of Section 8(d) of the Act. C. The 1978 Negotiations Because of the congruity of issues and of the individ- uals who represented the negotiating parties, the 1978 ne- gotiations between CATA and the Union are relevant to the 1978 negotiations between the Company and the Union. In the CATA negotiations, the Union was repre- sented principally by its president, Daniel George, and CATA was represented by Allen G. Siegel and Stephan J. Boardman, of the law firm of Arent, Fox, Kintner, Plotkin & Khan. By May 19, after five negotiating ses- sions, these parties reached an agreement, subject to rati- EXCAVATION-CONSTRUCTION, INC. 655 fication by the Union's membership, which, among other things, extended the expired contract for I year, pro- vided for no change in wage rates but for an increase of 8-1/2 cents per hour in the employers' contributions to the health and welfare fund, and for a Saturday makeup day, which clause reads: All time worked on Saturday shall be paid at the rate of one and one-half times the regular estab- lished rate of pay, except in the event of inclement weather during the regular Monday through Friday work week which prevents normal work oper- ations, in which event, employees agreeing to work a Saturday make-up day will be paid the regular hourly rate, unless they have exceeded forty (40) hours for the week or eight (8) hours in the make- up day. The Saturday makeup day was a major subject of discus- sion between the parties during their negotiations. The Union's membership, at a meeting which was also attended by employees of the Company, rejected the proposed agreement only because of the provision for the Saturday makeup day. Ultimately, CATA abandoned its demand for a Saturday makeup day and, after a union ratification meeting held on June 21, an agreement was executed by CATA and the Union on June 23, which was identical with the rejected agreement except that it provides that all time worked on Saturday shall be paid at the rate of one and a half times the regular established rate of pay. The Company and the Union particiapted in nine bar- gaining sessions which were held on April 28, May 19 and 31, June 21, July 11, and August 1, 9, 18, and 26. The Union's principal spokesman was its president, Daniel George. Various officials of the Company attend- ed these meetings, including General Manager Campbell. Its attorney, Paul Rhodes, attended the May 31 meeting. Following this meeting, Allen G. Siegel and Stephan J. Boardman were substituted as attorneys for the Compa- ny, and were the principal spokesmen thereafter. The negotiations between the Company and the Union are relevant to these proceedings only in connection with the question of whether by July 15 the parties had reached an impasse, because the complaint alleges that on that date the Company unilaterally changed a condi- tion of its drivers' employment by treating Saturdays as a makeup day at the project known as A-14, which is the construction of the Rockville route, Nicholson Lane sta- tion, for the Washington Metropolitan Area Transit Au- thority. Thus, evidence concerning the negotiations which does not relate to this subject is not material to the issues in these proceedings, particularly as the com- plaint contains no general allegation that the Company had engaged in bad-faith bargaining with the Union. Daniel George was not present at the April 28 meet- ing. Vice President Williams was the spokesman for the Union at that meeting, which was brief. Campbell told the union representatives that after the Union concluded its negotiations with CATA it should bring the CATA agreement to him and "he would take a look at it and if he found nothing wrong with it, that he would sign it." On May 8, Campbell, in a letter to Williams, confirmed his position that he would enter into the same contract as CATA "if he found no problems with it," which con- tract would be retroactive to May 1. At the May 19 meeting, according to George, Camp- bell stated, "I want a three year agreement, I want a wage freeze, no health and welfare increase, no pension increase, no increase in holidays or anything else." George responded that he was prepared to discuss these issues but wished to bring him up to date in regard to the CATA agreement. 2 George informed Campbell that the CATA agreement calls for a wage freeze for I year, but with an 8-1/2-cent increase in the required contribu- tions to the health and welfare fund. Campbell asked for a copy of the CATA agreement, which George gave him. George advised him that the Union's membership had not yet ratified the agreement but that he "felt it would be ratified by the membership." The meeting con- cluded with Campbell saying that he would think about the CATA agreement, but that he preferred a 3-year contract, and with George saying that he would forward to Campbell additional proposals with respect to a possi- ble 3-year contract.3 No such proposals were sent to the Company by the Union. Daniel George testified that at the May 31 meeting Paul Rhodes, who was then the spokesman for the Com- pany, emphasized that the Company required a 3-year agreement with the Union because it had long-term con- tracts to which it was committed and wanted the wage stability that a 3-year collective-bargaining agreement would afford. The Company proposed that such agree- ment would contain a wage freeze for the first year only. George further testified that there was no discussion about Saturday overtime at this meeting. However, on cross-examination George testified that at this meeting he gave the Company a copy of the proposed CATA agree- ment as it was drafted prior to its rejection by the Union's membership. I credit the contrary testimony of Robert Jenkins that a Saturday makeup day was dis- cussed at the May 31 bargaining session. According to Jenkins, Rhodes stated that it was essential to the indus- try for union contractors to have a Saturday makeup day so that they could compete against the nonunion con- tractors and that the bids for work which the Company had submitted were prepared on the assumption that makeup work on Saturdays would be at regular rates. The union representatives did not disagree and advised the Company that the CATA agreement contained a Sat- urday makeup day, but that the agreement had not yet been presented to the Union's membership for ratifica- tion. The next negotiating session was held on June 21. Representing the Company at this and all later bargain- ing meetings were Allen G. Siegel and Stephan J. Board- man, who also represented CATA in negotiations with 2 As of May 19, Ihe negotiators on behalf of the Union and CAT A had reached an agreement, subject to union ratification, which was for a I- year period and included Saturday as a makeup day. 3 Timothy Lyons testified that at the May 19 meeting, when Campbell initially asked for a 3-year contract, Campbell's proposal was that there would be a freeze on wages and fringe benefits for the first year and a 50-cent hourli wage increase in each of the next 2 years 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union which had just been concluded. According to Daniel George, at the outset of the meeting Boardman said, "Dan, we just finished negotiating the CATA agreement, so we all know what is in there. He said the company would like to have that agreement for three years .... " George responded that he would not con- sider the CATA agreement for 3 years and, if the Com- pany wished to negotiate a 3-year contract, the CATA agreement would have to be changed. "Steve Boardman then responded.... he thought we were wasting time since we had just rehashed this and I said, yes, but we just rehashed the so-called dump truck contract with only one year's language and we negotiated language in there which we thought our people could live with for a year and at that he said, OK, I understand your position and you understand my position and the meeting broke up." On July 6 the Company sent the Union a telegram, ad- vising it that the Company, beginning on July 15, did not intend to pay premium rates for Saturday work at the A-14 job. The telegram requested the Union to call if it had any questions. The parties next met on July 11. George testified that early during the meeting he complained to Siegel, who was acting as spokesman for the Company, that "not only have I been faced with two or three different attor- neys, but I am faced with one day the company is talk- ing to me about a three year contract and then also I get this telegram . . . I have no idea at all exactly what the company is looking for .... " Siegel replied, "I got good news for you .... I can put all your problems to rest. The Company has agreed to the CATA concept." George then asked what was the meaning of the Compa- ny's July 6 telegram. According to George, Siegel "gave me a history of the company, its collective bargaining agreements and why they neded [a Saturday makeup day]. They had certain problems that other dump truck companies did not have and as a result of that, they wanted to have a makeup day for Saturdays .... 4 I then said, Allan, you and I both know we just finished negotiating a CATA contract. We did not exclude the [company] people from coming into that meeting [where the employees of the CATA companies rejected the Sat- urday makeup day], so they understand the make up day I said, there is no way I can go to E&C employees and say you guys got a make up day when the entire indus- try has rejected a make up day .... I said, how can I, in good faith, sit here and negotiate something for E&C that our people have already rejected .... So, he said, that is the posture that E&C has. They had problems that aren't the same as the other industries. I said, I'll take it back to my people but I can tell you right now, they are not going to buy it." At this point Siegel "asked me what corresponding concessions could the company give, could they buy a make up day with and I said al that time I didn't have anything that I knew of that: would serve as some kind of a plum for our people to 4 The Company's bid for the A-14 job, which was prepared in May 1978. was based on the assumption that work on Saturday would not be at premium rates. The Company's collective-bargaining agreement with the Laborers Union provides that, on the A-14 job, Saturday would be :a makeup day. give up making Saturday a straight time day." George further testified, "I said I couldn't think of anything at that time that I thought our people would trade off the make up day for." The meeting ended on this note with no future meeting being scheduled. The parties next met on August 1. Siegel informed Daniel George that the other crafts had agreed to a Sat- urday makeup day. However, no progress was made to- wards resolving the parties' differences. At the succeed- ing meeting, which was held on August 9, Siegel again asked George what the Union wanted for a Saturday makeup day, and this time George responded that the membership would agree to a Saturday makeup day for a wage increase of 50 cents per hour. The Company re- sponded that such an increase would be too costly and was therefore unacceptable. The Union began a strike against the Company on August 14. A bargaining session was held 4 days later on August 18. At this meeting, Boardman advised George that, unless the parties were able to reach an agreement settling the strike, the Company would hire permanent replacements for the striking employees. However, no progress towards settling the strike or resolving the par- ties' collective-bargaining differences was made. The last meeting between the parties, which was held on August 26, also was unproductive. D. Withdrawal of Premium Pay for Saturday Work When the Company submitted its bid for the A-14 job, in order to compete effectively against nonunion con- tractors, it included no allowance for premium pay for Saturday work. The Company had no occasion to do Saturday work on that project prior to July 15. On July 6, the Company sent the Union the following telegram: SUBJECT: METRO JOB A-14 DUE TO COMPETITIVE FACTORS, AND FOR OTHER GOOD AND SUFFICIENT ECONOMIC REASONS, IT IS THE INTENTION OF EXCAVATION CONSTRUCTION INC COMMENCING SATURDAY JUILY 15 TO PAY STRAIGHT TIME FOR ALL HOURS WORKED EXCEPT TO THE EXTENT THAT EMPLOYEES WORK MORE THAN 40 HOURS IN ANY ONE WORK WEEK OR MORE THAN 8 HOURS IN ANY WORK DAY, BUT NOT BOTH. THIS MEANS NO PREMIUM PAY, AS SUCH, EXCEPT AS STATED. SHOULD YOU HAVE ANY QUESTIONS PLEASE CALL ME. General Manager Campbell testified that before sending the telegram he consulted with company counsel, who advised him to allow the Union enough time to negotiate with the Company about the subject before discontinuing premium pay for Saturday work. On July 11, representatives of the Company and the Union met and discussed the Company's proposal at length. On July 13, Daniel George sent the Company the following letter to the attention of General Manager Larry Campbell: On July 11, 1978, 1 met with Messrs. Allen Siegel and Tim Lyons at the former's offices in an effort to negotiate a collective bargaining agreement be- EXCAVATION-CONSTRUCTION, INC. 657 tween Local 639 and Excavation Construction (E & C). I was informed that the company (E & C) was agreeable to signing an agreement similar to that of the Capital Area Trucking Association (CATA), and currently in force between Local 639 and CATA, but with one exception-that of no over- time on Saturday or Sunday. The position as outlined by the Company's attor- ney is the same as that stated in a telegram to Local Union 639 on July 6, 1978. Because this position was made unilaterally and in violation of the collec- tive bargaining agreement between Local 639 and Excavation Construction, Local 639 has no choice but to take such action as it deems necessary to pro- tect Local 639 members' contractual relationship. Local 639 therefore will continue the day-to-day contract extension as agreed upon between the par- ties until the company institutes such action as out- lined in the company's telegram to Local 639 dated July 6, 1978. However, the local union will conduct a referendum of the employees of E & C with a re- quest that they strike E & C if the company imple- ments its unilateral change of the collective bargain- ing agreement, in violation of that agreement and company's bargaining obligations. The Company replied by telegram on July 14, as fol- lows: YOUR l.ETIER OF JUI.Y 13, 1978 HAS BEEN RE- CEIVED. IT CONTAINS A FACTUAL INACCURACY. AT THE MEETING REFERRED TO E-C REQUESTED THE UNION TO OFFER A CORRESPONDING CONCESSION IN EXCHANGE FOR THE RIGHT TO PAY STRAIGHT TIME ON SATURDAY AND SUNDAY AT THE A-14 JOB ONLY. THE UNION REFUSED TO MAKE SUCH A PROPOSAl.. E- C IS WILLING TO SIGN THE CATA AGREEMENT EXCEPT ONLY THAT IT WISHES TO WORK FOR STRAIGHT TIME ON SATURDAY AND SUNDAY AT A- 14 AND NOWHERE ELSE. THE UNION HAS INDICATED THAT IT S NOT AGREEABLE TO FURTHER NEGOTIA- TIONS ON THESE ISSUES. HENCE, WE ARE AT AN IM- PASSE. SINCE WE ARE AT AN IMPASSE E-C RESERVES ITS L.EGAL RIGHT TO INSTITUTE ITS LAST AND FINAl. OFFER. THAT FINAL OFFER IS, AS STATED BY MR. SIEGEL AT THE MEETING, TO SIGN THE CATA AGREEMENT AS IS, BUT WITH THE RIGHT TO WORK AT STRAIGHT TIME SATURDAY AND SUNDAY AT A- 14, AND ONLY AT A-14, UNLESS THE EMPLOYEE HAS WORKED MORE THAN 40 HOURS FOR THE WORK WEEK OR MORE THAN 8 HOURS IN ANY WORK DAY. 5 Beginning on Saturday, July 15, the Company placed in effect the change proposed in its July 6 telegram. As aptly put by the General Counsel in his brief, "[t]he question to be answered . . . is whether or not an impasse was reached when Respondent implemented its change on July 15. If, on the day in question, impasse G C Exh. 7, which was received in evidence, has been filed by the reporter with the rejected exhibits in this case. I grant the General Coun- sel's motion to remove G.C. Exh 7 from the file of rejected exhibits and to secure it with General Counsel's exhibits, which were received in evi- dence had not been reached, then Respondent's action would constitute unilateral action and a violation of Section 8(a)(5) of the Act." On the other hand, if the parties were at an impasse, then Respondent's action was not unlawful.6 The General Counsel and the Charging Party, who contend that there was no impasse, argue that prior to July 15 discussions between the parties concerning the Saturday makeup day largely were limted to the single bargaining session held on July 11. This, of course, ig- nores completely the relationship of the CATA negotia- tions to the negotiations between the Company and the Union. The evidence is that prior to July the Company and the Union were marking time until the CATA nego- tiations were completed. At the parties' first bargaining meeting on April 28 the Company agreed, which agree- ment it confirmed by letter on May 8, that "whatever contract Local 639 arrived at from its negotiations with the Capitol Area Trucking Association, [the Company] would then take a look at it and if [the Company] found no problems with it, [the Company] would then sign such contract retroactive to May 1, 1978." This position on the part of the Company harmonized with the Union's objective, as testified to by its president, Daniel George, which was to achieve uniform conditions of work for all its members so that it was looking to negoti- ate an agreement with the Company which would resem- ble as much as possible the agreement it reached with CATA. Although the Company at the May 19 and 31 and June 21 meetings broached the subject of a 3-year agreement it was not pressed by the Company nor ex- plored by the Union. No other material substantive sub- ject was discussed by the parties except the Saturday makeup day. The Saturday makeup day question was dis- cussed briefly at the May 31 meeting. There was little reason then, or at the prior bargaining sessions, for the Company to pursue the question, because the Union in its negotiations with CATA had agreed to a Saturday makeup day. When the Company and the Union met on May 19, the union negotiators already had reached a firm agreement with CATA-subject only to ratification by its membership-which included a Saturday makeup day. At the May 31 meeting, the Union gave the Compa- ny a copy of the proposed CATA contract which in- cluded a Saturday makeup day provision. Other than that the Company would have preferred a 3-year con- tract instead of the I-year contract which the Union had negotiated with CATA, as of May 31 there was no sub- stantial divergence between the Union's and the Compa- ny's positions. 7 Accordingly, through May 31 there had been little reason for extended discussions between the Company and the Union because there were only minor differences in their respective positions. However, the posture of the negotiations changed after May 31 when the CATA agreement was rejected at the union ratifica- t Taft roadcasting Co., WDAF AM-Flf TV, 163 NLRB 475, 478 (1967), affd sub nom. American Federation of Television and Radio Artists, Al--CIO, Kansas Local v .NL.R.B., 395 F2d 622. 624 (D.C. Cir. 1968). 7 The only economic improvement contained in the CATA agreement was the relatively slight increase of 8-1/2 cents per hour (less than I per- cent of the total labor cost of 9.14 per hour) in the required employers' contributions to the health and welfare fund 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion meeting. By June 21, when the Company next met with the Union, CATA and the Union had resolved their differences by CATA withdrawing its demand for a Sat- urday makeup day. Also, between May 31 and June 21, the Company retained as its attorneys Messrs. Siegel and Boardman, who represented CATA in its negotiations with the Union. Thus, at the June 21 meeting, which was brief, Daniel George and Boardman agreed that it was unnecessary for them to "rehash" the discussions they had had during the CATA negotiations. Contrary to the General Counsel and the Charging Party, as of the June 21 meeting the Saturday makeup day question had been thoroughly explored by the nego- tiators for the two parties. It is true that the larger part of their discussions was in connection with their CATA negotiations, but from the very outset of the negotiations between the Company and the Union it was understood that the CATA agreement, if not adopted in its entirety by the Company, would be the framework around which the Company and the Union would develop their agree- ment. In these circumstances no useful purpose would have been served by Daniel George and Siegel and Boardman repeating to each other on July 11 or at any other bargaining session the same arguments they had ex- changed during their meetings while negotiating the CATA agreement. 8 At the July 11 meeting, Siegel announced that the Company was prepared to accept the CATA agreement with the single reservation that it wanted a Saturday makeup day for the A-14 project only. George, on behalf of the Union, firmly and unequivocally rejected a Saturday makeup day. When Siegel asked whether there was any concession the Company could offer in ex- change for a Saturday makeup day, George responded that there was none. "[T]he act does not encourage a party to engage in fruitless marathon discussions at the expense of frank statement and support of his position."9 Whether negotiations have reached a genuine impasse is a "matter of judgment" to be made on the basis of "all relevant factors" in the particular circumstances of each case.' Thus, in Stratford Industries, Inc., 215 NLRB 682, 684 (1974), the Board found that an impasse existed where there was only one issue upon which the parties were in disagreement and, in Dixon Distributing Compa- ny, Inc., 211 NLRB 241, 244 (1974), the Board found that an impasse developed at the first bargaining session which lasted only 20 minutes. The General Counsel argues that "impasse was not reached over the make-up day issue because the parties continued to meet and negotiate over this issue after the unilateral change had been instituted. While this is not conclusive evidence that impasse had not been reached, it is strong evidence that Respondent never allowed the Union sufficient time in which to formulate a bargaining position or to fulfill its role as bargaining representative." s See Contineral Insurance Company and Underwriters Adjusting Compa. ny, 204 NLRB 1013, 1014, 1019-20 (1973), enfd. 495 F.2d 44 (2d Cir 1974). 9 N.LR.B. v. American National Insurance Co., 343 U.S. 395, 404 (1952). 10 Taft Broadcasting Co., supra, affd. sub nom. American Federation of Television & Radio Artists v. N.L.R.B.. supra. As of July 11, the Union and the Company were apart on only one subject; namely, the Saturday makeup day. The Company was firm in its position that it required that concession and the Union was adamant that it would not give the Company a Saturday makeup day when it had refused that point to CATA. Nothing that the Union's representatives said on July 11 or in their letter of July 13 indicated that the Union wished "time in which to formulate a bargaining position." The Union's bargaining position was and still is clear. It will not con- cede a Saturday makeup day to the Company. The fact that the parties continued to negotiate after July 11 does not negate the existence of an impasse. "[A] genuine im- passe is akin to a hiatus in negotiations. In the overall on- going process of collective bargaining, it is merely a point at which the parties cease to negotiate and often resort to forms of economic persuasion to establish the primacy of their negotiating position." An impasse does not terminate the bargaining process, for the parties remain bound to negotiate in good faith towards an agreement. 1 2 I find that as of July I 11 the parties were apart on only one issue, that the subject had been fully explored by them, and that they then were unable to find any basis for resolving their differences. Therefore, the negotia- tions between the Company and the Union had reached an impasse and the Company did not in any manner vio- late its statutory collective-bargaining obligations by es- tablishing Saturday as a makeup day for the A-14 pro- ject. 3 E. The Alleged 8(a)(3) Violations The Company has promulgated a set of uniform rules and regulations covering the conduct of its employees. The preamble to the document reads: The following rules and regulations, and the penal- ties charged for violations of same, are placed into effect, with the approval of your Union, so that all employees of this firm may know what duties are required of them in the general operation of this firm's business. Pertinent hereto are the following: Rule 4(b) entitled "Reports & Reporting for Work," reads: "Failure to report for work at designated reporting time: First of- fense-reprimand; second offense-3 day layoff; third and subsequent offenses of aggravated cases-discharge." Rule 7(d) entitled "Miscellaneous" reads: "Refusal of Job: Subject to discharge." On July 17, Johnnie Bunn was suspended for 3 days and Ernest Wellons, Milton Suggs, and James Robinson were discharged. The complaint in Case 5-CA-9678 al- leges that such discipline was unlawfully discriminatory " Hi-Way Billboards. Inc., 206 NLRB 22, 23 (1973), enforcement denied 500 F.2d 181 (5th Cir. 1974) 12 See C Morris, "The Developing Labor Law," 331, 386 (1971). Cf. N.L.R.B. v. E. L. Dell. Jr., Trading as Waycross Machine Shop, 283 F.2d 733, 740 (5th Cir. 1960). 1' "it cannot be doubted that a deadlock on one critical issue can create as impassable a situation as an inability to agree on several or all issues." American Federation of Television and Radio Artists. AFL-CIO v. N.L.R.B., 395 F2d at 627, fn 13 (D.C Cir. 1968) EXCAVATION-CONSTRUCTION, INC. 659 as it was imposed "because of their membership in and activities on behalf of the Union, and because they en- gaged in a protected concerted refusal to work." Re- spondent contends that these employees were disciplined because on Saturday, July 15, they were guilty of infrac- tions of the above-quoted rules. Saturday work is voluntary. If the Company requires drivers to work on a Saturday, the practices is for Truck Foreman Earl Jones, on Friday afternoon when the driv- ers return to the Company's main facility, to ask each driver if he wants to work the next day. Those who answer "yes" are listed on the "work list" and those who say they are unavailable are listed on the "off list." No pressure is put on a driver to work; the choice is his. A driver cannot be fired for refusing to work on Saturday. However, if a driver commits himself to work on Satur- day and then fails or refuses to do so, he is subject to discipline in accordance with the Company's rules and regulations. After the work list is completed, it is given to Truck Superintendent Walter Jones, Jr., who uses it to prepare the schedule for Saturday's work, including the assignments of drivers to the various trucks and pro- jects. A trip ticket is prepared for each driver, which de- scribes the particular job to which the driver is assigned. It is undisputed that the four named discriminatees on Friday, July 14, agreed to work the next day, Saturday, July 15. Suggs and Robinson each testified that Truck Superintendent Walter Jones promised him that he would be paid time and a half if he worked on Saturday, July 15. Wellons did not testify at the hearing and John- nie Bunn testified that he asked Earl Jones what he would be paid the next day and Earl Jones replied that he did not know. 14 Walter Jones, Jr., denied that he promised Suggs and Robinson that they would be paid time and a half for work on Saturday, July 15. credit Jones, not only because he impressed me as being a truthful and reliable witness, but also because it is im- probable that only two of the Company's drivers were promised premium pay for working on Saturday, July 15, and the rest were not. In accordance with a prior announcement, the Union held a meeting for the Company's drivers on the night of June 14. General Manager Campbell, who had seen a notice of the union meeting, spoke to the drivers during the day. In part, Campbell told the drivers that the Com- pany had offered to enter 35 into the same contract that CATA had executed, with only one difference-that the Company wanted a Saturday makeup day for the A-14 job-and that Daniel George had rejected the offer and that Campbell believed that George intended to call a strike. Campbell encouraged the employees to go to the union hall that night to vote. He also said that he had been a union operator a long time and wanted to contin- ue that way. The union meeting on the night of July 14 was chaired by Union Vice President James Williams. The principal subject discussed at the meeting was the Company's tele- 4 Union Shop Steward William Gray testified that he overheard the conversation between Milton Suggs and Walter Jones, Jr According to Gray, "Suggs asked him, was it going to be straight time or time and a half .. Mr Jones told him he didn't know, but he needed every driver he had to come in. He said he would get time and a half. gram of July 6 in which it advised that it intended, be- ginning Saturday, July 15, to treat Saturdays as a makeup day at the A-14 project.' 5 A vote by secret ballot was taken as to whether or not to accept the Com- pany's proposal. The proposal was rejected by a vote of 27 to 5.' s Some of the union members understood that the sense of the meeting was that they were not to work at straight time rates on Saturdays or Sundays. Thus, Union Shop Steward William Gray testified, "We just made an agreement not to work on Saturdays and Sun- days straight time." James Robinson testified, "At that time [the July 14 union meeting] we didn't vote to strike, we just voted that we wasn't going to accept the offer to work straight time on Saturday.... We all agreed to go to work the next day which was Saturday, because we didn't know what they was going to do, whether they was going to pay us straight time or time and a half. If it came they were going to pay us straight time. we would strike." Williams and George, however, testi- fied that neither they nor any other union official on July 14 gave instructions to the employees of the Company to refuse to work overtime. On Saturday, July 15, although 10 to 13 drivers were assigned to work on the A-14 project, and did work on that job, Robinson, Suggs, and Wellons, who also had re- ceived assignment to the A-14 project, refused to work. Robinson reported to the Company's office, found that his trip ticket was for the A-14 project, and learned that he would not be paid time and a half for work on that day. He then refused to work and left the premises. Five minutes after Robinson left, Wellons and Suggs came into the Company's office at or about the same time. Both of these employees, who also had been assigned to the A-14 project, refused to work because the Company would not pay them time and a half their regular rate." 15 Union President Daniel George testified that he was unable to attend the July 14 union meeting and that he had "instructed Mr Wil- liams to take the CATA agreement to the E&C employees, read it to them as well as read the telegram to them [Company's telegrams of July 6 and July 14] and, in effect, ask the members as to what their posture was going to be . 1' Williams testified that no strike vote was taken at the July 14 meet- ing However, in a pretrial affidavit he averred: "There was a lot of dis- cussion. Then we had a vote on whether to work on straight time on Saturday and whether to accept the company's contract offer (the CATA contract) with one change-no Saturday premium pay. The vote was about 27 to 5 not to work or accept Saturdays on straight time and strike if necessary." The ballot which was used at the meeting reads as follows: YES---- A vote "YES" is a vote to accept the final proposed contract. Final Ballot NO--- A vote "NO" is a vote to reject the final proposed contract and to authorize a strike (It takes two-thirds (2/3) vote of the members of the Local Union in- volved who are present and voting in order to reject the proposed con- tract and to authorize a strike ) It is understandable therefore that several witnesses testified that a strike vote was taken at the union meeting on the night of July 14 17 Union Shop Steward William Gray. who was in the Company's of- fices on July IS at the time the three employees indicated that they would not work at straight time rates, testified that .a hile Suggs was in Continued 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Three other drivers-Johnnie Bunn, Chauncey Middleton, and Joseph McKinney-who were scheduled to work on Saturday, July 15, did not report for work. McKinney telephoned to advise that he would not be able to work because of an illness in his family. Bunn and Middleton failed to report for work and did not tele- phone with an excuse. There is no evidence in the record what jobs had been assigned to Bunn, Middleton, and McKinney. Bunn and Middleton were laid off for 3 days because of their unexcused absences on July 15. The refusals of the three drivers to work on Saturday, July 15, were duly reported to General Manager Camp- bell. The latter telephoned Attorney Boardman about the matter and Boardman cautioned that, before the employ- ees were disciplined, the Company should determine that their refusals to work were not the beginning of or part of a general strike. Accordingly, Campbell instructed As- sistant General Manager Robert Jenkins to question each of the three drivers on Monday as to why he had refused to work the previous Saturday. When Wellons, Suggs, and Robinson reported for work on Monday, July 17, they were called into a con- ference room where they met with Robert Jenkins, Walter Jones, Jr., Earl Jones, and Eddie Storke. Jenkins asked Wellons why he had not worked for straight time on Saturday, and Wellons replied, "Friday night we were told not to work for straight time on Saturday, and the majority of the guys signed it, so I was one of them, and I went along with it."18 To the same question Rob- inson responded, "Same reason." Suggs' answer was, "Mostly the same reason that I was told that I was going to be paid time and half to come in on Saturday. I was told Friday that I would be paid time and a half before the meeting. When I got here Saturday morning, it was a different story. I didn't have but 32 hours." A debate then followed as to whether the three drivers had been promised time and a half if they worked on Saturday, July 15. Suggs and Robinson insisted that such promise had been made to them by Walter Jones and Jones denied having made that promise. It was pointed out to the employees that, of 43 drivers, Wellons, Suggs, and Robinson were the only ones who claimed they had been promised time and a half for work on Saturday, July 15. The three drivers were discharged at the conclusion of the meeting and were given their paychecks, which had been prepared in advance of the meeting. Respondent's contention is that Wellons, Robinson, and Suggs were discharged for insubordination. That is true. They refused an assigned job and under the Compa- ny's rules were subject to discharge. The General Coun- sel, on the other hand, contends that "[t]here is little doubt that the drivers, in refusing to work overtime at straight time wages, were engaged in concerted activ- ity." Contrary to the General Counsel, the evidence in this regard is not crystal clear. Union Officers George and Williams testified that, at the union meeting on July the office Suggs "asked me what should he do and I told him he already got his ticket, there was nothing I could tell him to do." 18 A tape recording of the July 17 meeting was made by the Compa- ny. A copy of the tape and the transcript of the tape were introduced into evidence by Respondent. I find that the tape and the transcript accu- rately reflect what occurred. 14, no strike vote was taken and they did not instruct the drivers to refuse any Saturday work. Wellons, Robinson, and Suggs separatey and independently decided and noti- fied Respondent that they would not work on Saturday, July 15, at straight time rates.'9 Thus, whether the three drivers were engaged in a strike 20 depends upon the construction given to the circumstances surrounding their individual refusals to work rather than upon direct evidence that jointly they had decided to refuse Saturday work at straight time rates. Between July 6 and July 15 the differences between the Union and the Company as to whether Saturday should be a makeup day had come to a head. By the morning of July 15, the opposing positions of the Union and the Company had become firm and for the moment, at least, irreconcilable. The Company in its telegrams of July 6 and 14, and at the July 11 negotiating session, in- dicated its intention to discountinue premium pay for Saturday work at the A-14 project. The Union at the July 11 meeting resolutely informed the Company that it would not accede to the Company's proposal and, in its July 13 letter to the Company, threatened to strike if the Company should implement its proposal to discontinue premium pay for Saturday work at the A-14 job. The Company was conscious that the parties' difference might lead to a strike and General Manager Campbell, in a talk with his drivers on July 14, informed them that he believed that Union President George intended to call a strike.21 Before the Company discharged the three driv- ers on July 17, the Company had been advised by its counsel that the employees may have been engaged in a strike. When Robert Jenkins asked Ernest Wellons why he had refused to work on Saturday, Wellons answered, "Friday night [at the union meeting] we were told not to work for straight time on Saturday, and the majority of the guys signed it, so I was one of them, and I went along with it." In reply to the same question from Robert Jenkins, both Robinson and Suggs stated that they had refused to work on Saturday, July 15, for the "same reason." Accordingly, before the Company dis- charged the three drivers it was apprised that they were following a plan of concerted action formulated at the July 14 union meeting. That implementation of this plan was, in fact, the underlying motive of the three employ- ees is reflected most clearly by Robinson's testimony that "[w]e all agreed to go to work the next day which was Saturday, because we didn't know what they was going to do, whether they was going to pay us straight time or time and a half. If it came they were going to pay us straight time, we would strike." 22 Thus, the individual actions of the three drivers had a common purpose. The fact that only three of Respondent's drivers acted upon such common purpose does not vitiate or attenuate the 19 If the Compamy had promised to pay each of them time and a half for Saturday work, and then had reneged on its promise, that would be a breach of an oral contract, but alone would not be an unfair labor prac- tice. 20 "The term 'strike' includes any strike or other concerted stoppage of work by employees .... " Sec. 501 of the Act. 21 Thus, in its brief, Respondent points out that "management was sen- sitive to the Union's position that it would strike" 22 Similarly, Union Shop Steward Gray testified, "We just made an agreement not to work on Saturdays and Sundays at straight time." EXCAVATION-CONSTRUCTION. INC. 061 concerted nature of their activity. 23 Also, the strike on their part was in support of, not in opposition to, the Union's position in its negotiations with the Company, and constitutes an activity protected by Section 7.24 The complaint in Case 5-CA-9678 allges that John Bunn, who was suspended for 3 days because of his ab- sence from work on July 15, was disciplined because he also had engaged in a concerted refusal to work. I agree with Respondent that "[t]he short answer to this allega- tion is that General Counsel did not introduce a shred of supporting evidence, and thus for this reason alone this aspect of the complaint should be dismissed." Respondent contends that even if Wellons, Suggs, and Robinson were engaged in a concerted activity it was unprotected because they were engaged in a partial strike. However, contrary to Respondent, the drivers' re- fusals to work on July 15 only, in the circumstances here, were not an intermittent work stoppage as would strip from them the normal protection given to striking employees by the Act. The immunity from employer dis- cipline afforded employees who are engaged in peaceful concerted action by the Act has been narrowly limited and generally was denied only when " (1) the objective of the activity contravened the provisions or basic poli- cies of the Act or the provisions of a related federal stat- ute, or (2) the means utilized to obtain a lawful objective were 'indefensible' by all recognized standards of con- duct. The latter category included, for example, major violence or similar misconduct, slowdown, intermittent work stoppages, and the refusal to obey orders while drawing pay." 2 5 Respondent argues: In the instant case, employees Wellons, Suggs, and Robinson refused to perform Saturday work on the A-14 project unless they were paid the premium overtime rate. The employees expressly refused to work on the project at the straight-time rate. They said, however, that they were willing to perform work at any other job site where they could receive premium pay. It is also clear that each employee 23 "[T]here is no legal prerequisite that there be a prior consensus for mutual support among those who participated in the walkout." Phaostron Instrument and Electronic Company, 146 NLRB 996, fn. I (1964), enfd. 344 F.2d 855 (9th Cir. 1965). Further, even if the refusals to work on Saturday, July 15, by each of the three drivers are considered as having been their individual decisions, they nevertheless were engaged in a con- certed activity within the meaning of the Act. In determining whether action taken by a single individual is "concerted," the cases distinguish between action "aimed at resolving only a personal problem and one also having the welfare of other workers in mind." Randolph Division, Ethan Allen. Inc. v. VL.R.B., 513 F.2d 706, 708 (Ist Cir. 1975). Accord: .L.R.B. v. Sencore, Inc., 558 F.2d 433 (8th Cir. 1977). "The requirement of concertedness relates to the end, not the means." Randolph Division. Ethan Allen, Inc. v. N.L.R.B., 513 F.2d at 708, citing NL.R.B. v. Inter- boro Contractors, Inc., 388 F.2d 495, 500 (2d Cir. 1967). Here, the end being pursued by the three drivers was opposition to straight time pay for Saturday work for all the Company's drivers and not the resolution of strictly personal problems. See Pink Moody, Inc., 237 NLRB 39 (1978). But see ARO. Inc., 227 NLRB 243 (1976), enforcement denied 596 F2d 713 (6th Cir. 1979). 24 NL.R.B. v. R. C Can Company, 340 F.2d 974 (5th CIr. 1964) (An unauthorized walkout is protected if it seeks to generate support for, and acceptance of, the union's demands and does not conflict with or repudi- ate union policy such as. for example, a no-strike pledge.). 26 NL..RB. v. Washington Aluminum Co., 370 U.S. 9, 13-14 (1962). 2 C G. Conn, Limited v. L.R.R, 108 F.2d 390, 397 (7th Cir. 1939). was willing to work during the regular workweek and each employee reported for work on the fol- lowing Monday. Moreover, it is reasonable to infer from the evidence that these employees would not have been willing to work at the A-14 job site on any Saturday during a workweek in which their hours of work was less that forty. However, Respondent's construction of the evidence is incomplete. Saturday work for the Company's employees is voluntary. Thus, a driver who refuses to work on Sat- urdays, regardless of the reason, is observing an estab- lished condition of his employment and is not seeking "to work upon terms prescribed solely by him."2 6 Within the posture of voluntary Saturday work, the only circumstances under which the drivers' conduct might be statutorily indefensible is if their intention was to follow a consistent practice of volunteering for work on Saturdays and then, after reporting to the job, refusing to accept their assignments. Although the three drivers re- fused to accept their assignments on July 15, after having agreed to work on that day, the record does not support an inference that they planned to repeat the same con- duct on succeeding Saturdays. First, there is no direct evidence to support any such inference; second, Respon- dent refers to no evidence in the record from which any such inference may be constructed; third, the testimony of Robinson indicates that he and the other drivers were uncertain as to what the Company was going to pay them on Saturday, July 15, and Robinson decided to go to work in order to ascertain what would happen; and fourth, when Respondent interviewed the three drivers on July 17, it made no attempt to ascertain what their intentions were in regard to future Saturday work before discharging them.2 7 What occurred here, and I so find, is that Wellons, Suggs, and Robinson engaged in a I-day strike, not in "intermittent work stoppages" and were not seeking "to work on terms prescribed solely by themselves." 2 1 Only when employees adopt a strategy of continuing work stoppages, or refusals to perform assigned tasks which may be characterized as a "strike on the installment plan," 2 9 does their activity become "indefensible" and lose its protected status. Thus, "[t]wo one-day work stoppages in three months do not give rise to a repeated 27 In John S. Swift Company. Inc., 124 NLRB 394 t1959). enfd 277 F.2d 641 (7th Cir 1960), as in Valley City Furniture Companv, 11(10 NLRB 1589 (1954), enfd. 230 F.2d 947 (6th Cir 1956), and Honolulu Rapid 7ran- rit Company, Ltd., 110 NLRB 1806 (1954), " the employer was aare that the employees had decided to adopt the tactics of recurrent or inter- mittent walkouts as a means of forcing concessions in bargaining In all three cases, also, the employees had been sarned that continuance of such a tactic would bring about the use of counter-measures designed to blunt the pressures being brought to bear I believe that these were the critical elements in all three cases, and that the absence of one or both might well have produced a different result. The fact that in these cases the employees' bargaining tactic was to refuse to work scheduled hours is significant only insofar as it exposed the employees' intention to embark on an intermittent or recurring strike." First 'atronal Bank of Omaha, 171 NLRB 1145, 1150 (1968), enfd. 413 F.2d 921 (th Cir 1969) s8 John S. Swift Company. Inc., 124 NLRB at 397 29 C G. Conn. Ltd. v. .VL.R.B.. supra. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pattern of half-strikes." 30 In short, while intermittent work stoppages are an exception to the broad guarantees embodied in Section 7 of the Act, it does not authorize an employer to use the penalty of discharge to punish employees for engaging in a single, concerted work stop- page of limited duration in protest over working condi- tions. 31 I find that the discharges on July 17 of Wellons, Suggs, and Robinson, because of their -day work stop- page strike in support of the Union's bargaining stance in its negotiations with the Company, constituted discrimi- nation in regard to tenure of employment which discour- ages membership in the Union and thus violates Section 8(a)(3) and, further, that such discharges also interfered with, restrained, and coerced employees in the exercise of the right to assist labor organizations and to engage in other concerted activities for the purpose of mutual aid or protection and therefore violates Section 8(a)(1). F. The Alleged Unilateral Wage Increase Paragraph 8 of the complaint in Case 5-CA-9813 allges that Respondent has refused to bargain in good faith with the Union "[b]y unilaterally, and without notice to or bargaining with the Union, granting a wage increase for employees in excess of any offer made to the Union during contract negotiations." Under the terms of the collective-bargaining agreement that expired on April 30, 1978, the Company paid its drivers $8.30 per hour plus a 41-1/2-cent-per-hour contribution to a health and welfare fund and a 42-1/2-cent-per-hour contribution to a pension fund for a total hourly labor cost of $9.14. On August 14, the Union called a strike against the Compa- ny. Thereafter, the Company hired replacements for its striking drivers and paid the replacements, as well as any other drivers who did not join the strike, $9.14 per hour without any contributions to health and welfare or pen- sions. Thus, there was no increase in the aggregate wages paid the Company's drivers after August 14, but merely a change in its form. It is noted that the com- plaint does not allege any unfair labor practice by reason of the change in the form that wages to its employees were paid but merely that Respondent unlawfully grant- ed "a wage increase for employees in excess of any offer made to the Union during contract negotiations." As this did not happen, I find that the General Counsel has not proved the above-quoted allegation of the complaint. 32 30 N.L.R.B. v. Robertson Industries, 560 F.2d 396 (9th Cir. 1976). a' Polytech. Incorporated, 195 NLRB 695, 696 (1972). Accord: N.L.R.B. v. A. Lasaponara & Sons Inc., 541 F.2d 992, 998 (2d Cir. 1976), cert denied 430 U.S. 914; First National Bank of Omaha v. N.L.R.B., 413 F.2d 921, 923-925 (8th Cir. 1969). a2 In his brief, the General counsel argues that "the wage package of- fered on August 16 was greater than anything proposed to the Union." This is contrary to the evidence as the Company's total labor cost per hour for its drivers remained the same after the strike as it was before the strike. G. Interference, Restraint, and Coercion The complaints allege that Respondent engaged in var- ious conduct constituting violations of Section 8(a)(1) in- dependent of the alleged infringements of Section 8(a)(3) and (5). One such allegation, referring to an incident on July 14, is set forth in the complaint in Case 5-CA-9678 and 10 additional incidents are set forth in paragraph 6 of the complaint in Case 5-CA-9813. These allegations will be considered below. 6. Respondent on or about July 14, 1978, [violat- ed Section 8(a)(1)] . . . by the conduct of Larry Campbell, in threatening employees with discharge should they engage in a protected work stoppage. In reference to this allegation of the complaint, the General Counsel in his brief asserts: At employee meetings held by Larry Campbell in the drivers room on July 12 and 14, Campbell told the drivers that he wanted to pay straight time for Saturday work on the A-14 job. He also told the drivers that the Union wasn't doing him or the driv- ers any good .... He further stated that he wanted to go nonunion because he had bid low on the A-14 job and they would do better if they just left the union . . .. Campbell further told the driv- ers that he wanted to go nonunion and that he didn't want anything to do with the Union, that the Union wasn't doing the drivers any good. He said that he could give the drivers a better plan, like hospitalization, and that he wouldn't give what the Union wanted. Campbell stated that the drivers would have to accept what he offered because he was going to replace them quick and fast. He also stated that the Union was out to get him.... Campbell offered the drivers $9.14 per hour without the Union. I have carefully checked the transcript citations of the General Counsel and find that the only witness who tes- tified that Campbell threatened employees with dis- charge was Elias McCrea, who testified: Really the one that stands out most in my mind was the one that he said he wants to go nonunion. He don't want to have nothing to do with the union. He told us the union wasn't doing us no good. He say he will give us a better plan or what- ever, like hospitalization and so forth, that he wasn't going to give what the union was. He said we would have to accept that because he was going to replace us quick and fast.... He said the union was out to get him. He didn't want to have any- thing to do with them because the union was out to get him. Respondent's witnesses-Robert Jenkins, Earl Jones, and Larry Campbell-denied that Larry Campbell, on the occasions in question, threatened employees with dis- charge should they engage in a strike. According to Jen- kins, Campbell told the employees that "he thought Mr. George intended to strike the job. He said if he strikes EXCAVATION-CONSTRUCTION, INC. 663 the job, we intend to continue work. He said we had a lot of old employees, good employees that had been with us a long time and hoped we wouldn't lose any of them but we intended to keep operating and any one that wanted a job that they would be welcome to work and he understood that some of them probably couldn't do it Union Shop Steward William Gray, who was a wit- ness for the General Counsel, corroborated Respondent's witnesses, not McCrea. According to Gray, on the occa- sion in question Campbell said that "he didn't know if the union was going to strike or not. If they did, he would replace all the drivers that didn't come to work and he did hate to lose us because we were all good drivers, he had the best drivers in town." I do not credit McCrea's testimony and find that the General Counsel did not prove that on or about July 14 Respondent threatened employees with discharge should they engage in a strike. Accordingly, I shall dismiss the allegation quoted above. 1. The conduct of Larry Campbell on or about August 12, 1978, in interrogating employees regarding their union activities and sympathies (par. 6(a)) The only evidence adduced in support of this allega- tion concerns a private conversation between Campbell and Union Shop Steward William Gray about 4 p.m. on August 12. Gray testified that Campbell "was irritated that we were having a [union] meeting that Sunday and he wanted to know what the meeting was about, wheth- er we were striking or not and I told him I didn't know." The conversation then drifted to other subjects. Campbell testified as follows: Q. What was the purpose of the meeting [with William Gray]? A. Two purposes. One purpose was to find out what the union was voting on and two was to ask Mr. Gray about one of the drivers that I had been told he had mentioned not to take the ticket. Thus, there is no dispute that on the occasion in question Larry Campbell questioned William Gray as to what might transpire at the union meeting scheduled for the next day, August 13. What constitutes unlawful interrogation is not always clear. However, I believe on the authority of Dependable Lists, Inc., 239 NLRB No. 195 (1979), and CBS Records Division of CBS, Inc., 223 NLRB 709 (1976), that Camp- bell's questioning of William Gray on August 12 consti- tuted unlawful interrogation and I so find. 2. The conduct of Larry Campbell, on or about August 12, 1978, and on or about August 19, 1978, in threatening employees with loss of their jobs if they began and/or continued a strike (par. 6(b)) The conduct of Larry Campbell, on or about August 19, 1978, in stating to employee pickets that he would no longer meet with the Union for purposes of collective bargaining (par. 6(h)) The conduct of Larry Campbell on or about August 19, 1978, in offering employee pickets increased wages and improved insurance benefits if they returned to work and abandoned their strike (par. 6(i)) No evidence was adduced regarding any occurrences on August 12. About 11 a.m. on Saturday, August 19, Campbell went to the picket line at the Company's Bla- densburg premises accompanied by other management personnel where he spoke to the pickets. Three witnesses called by the General Counsel testified in regard to the allegations set forth above. As to the first item, James Williams testified that Campbell "stated that the men would have until noon that day to return to work if they wanted to return . . . but if they did not return by noon, they would be re- placed." This testimony was corroborated by General Counsel's witnesses Elias McCrea and William Gray and is not disputed by Respondent's witnesses. I find that such testimony does not support the allegation of the complaint that Campbell threatened employees with loss of their jobs if they continued their strike. In his brief, the General Counsel refers to no evidence to support the allegation of the complaint that Campbell threatened em- ployees with loss of their jobs "if they began" a strike. Accordingly, I shall recommend that paragraph 6(b) of the complaint be dismissed. The only evidence adduced by the General Counsel in support of paragraph 6(h) is the following testimony of William Gray: Q. Did anybody ask about the company meeting with the union? A. Yes, they asked him, why they couldn't talk about it and he said he was finished talking, he didn't have no more to say, that if there would be any talk, it would be between his lawyers and the union lawyers. He had nothing else to say about it. Even if I credited William Gray, despite the fact that his testimony is uncorroborated, I would find that his testi- mony does not support the particular allegation of the complaint. However, I find that Gray gave an inaccurate description of what happened. I credit the testimony of Respondent's witnesses-Robert Jenkins, Edward Storke, and Larry Campbell-that one of the pickets asked Campbell whether there would be any more meetings and he replied that he would not negotiate in the street. I find the General Counsel has not proved paragraph 6(h) of the complaint and I therefore shall recommend that it be dismissed. 664 DECISIONS OF NATIONAL I.ABOR RELATIONS BOARD With respect to paragraph 6(i) Williams testified that "[o]ne of the pickets asked if they returned what the wages would be. I believe Mr. Lyons answered this question and said the pay would be $9.14 with all the money going into the man's pocket and someone asked about the fringe benefits and he said there would be none, they would get all their pay in their pockets." Wil- liams' testimony is generally consistent with the testimo- ny of Respondent's witnesses Storke, Timothy Lyons, and John Lyons. I credit Williams' testimony rather than the somewhat different testimony of the General Coun- sel's witnesses, McCrea and Gray. For the reason given in section F of this Decision, I find that the the General Counsel has not proved paragraph 6(i) of the complaint and I shall recommend that it be dismissed. 3. The conduct of Larry Campbell, on or about August 15, 1978, at the Rockville, Maryland, jobsite in discharging an employee, identified only by his last name, Mitchell, in the presence of employee pickets, because of his refusal to cross the picket line (par. 6(c)) The conduct of Larry Campbell on or about August 15, 1978, and on other dates in August 1978, the exact dates not known to me, at the Rockville, Maryland, jobsite and Bladensburg, Maryland, location, in instructing employees, within the presence of employee pickets, to drive trucks over the employee pickets (par 6(d)) The conduct of Larry Campbell, on or about August 15, 1978, at the Rockville, Maryland, jobsite in assaulting a union official in the presence of employee pickets (par. 6(g)) The heading allegations refer to events that occurred at approximately 2 p.m. on August 15 at the A-14 jobsite in Rockville when pickets for a time prevented a line of trucks from leaving the premises. The General Counsel's principal witness in regard to these events was James Woodward, an organizer for the Union. In giving his tes- timony Woodward was obviously partisan, argumenta- tive, defensive, and unresponsive to questions asked him on cross-examination. Further, his testimony in material respects contradicted statements given by him prior to the hearing. I find that Woodward was a totally unreli- able witness and I do not credit any uncorroborated tes- timony given by him. Of the various witnesses who testi- fied concerning the events in issue, I was most impressed by and have given the greatest credit to the testimony of Calvin Nedd. 33 Calvin Nedd testified that about 2 p.m. on August 15 he was the operator of the lead truck in a line seeking to exit from the A-14 jobsite. The pickets stood directly in his way so that he was unable to drive into the street. Campbell went to the picket line and directed the pickets to move aside. However, Woodward instructed the pick- 33 Respondent's evidence is overwhelming that Nedd was he driver involved in the incident referred to in par. 6(c) of the complaint. The General Counsel was unable to produce a scintilla of evidence other than the unbelievable testimony of Woodward that an individual by the name of Michael or Mitchell was the driver of the truck in question. ets not to move and to stand where they were. Campbell then approached Nedd and told him "to go ahead and move the truck up" Nedd drove closer to the pickets, but as they would not move aside he stopped the truck. Campbell again directed Nedd to drive ahead, but Nedd refused. Campbell then went to the picket line and told the men to move aside and let the trucks leave. As there was no response from the pickets, Campbell went to Woodward and pushed Woodward to the right side of the truck. Woodward ran to the other side of the truck, picked up a shovel and raised it in a threatening manner. Then, according to Nedd, "Campbell pointed his finger at [Woodward], as though he was telling him to put the shovel down, but I couldn't hear nothing then, so one of the fellows came up, one of the strikers, they came up and grabbed [Woodward]." Campbell then directed Gen- eral Superintendent Donald Davidson to board the truck. Davidson got onto the passenger seat. Nedd again at- tempted to drive the truck forward, but the pickets still would not move out of the way. Campbell told Nedd to get out of the trcuk and instructed Timothy Lyons to get in and drive it out of the premises, which Lyons did. Nedd further testified that Campbell did not tell him that he was fired, but that he was still working for the Com- pany. Nedd also testified that he did not see Campbell with a gun. As I credit the testimony of Calvin Nedd, I find that the General Counsel has not proved paragraph 6(c) of the complaint. In connection with the above incident Milton Suggs testified that he overheard Campbell tell Calvin Nedd "to go on through [the picket line] and . . . [r]un over them." 3 4 Elias McCrea testified: Q. Do you recollect whether or not Larry Camp- bell said anything directly to the drivers to drive through this picket line? A. He told him to run over us. He told him to run over us. Q. Is that what he said? A. He did not say that, but the impression that he was giving was the drivers to just keep rolling. In regard to the same incident William Gray testified that Campbell "told the driver [Calvin Nedd] to run over us, told Woody [James Woodward] to get the hell out of the way." I credit the contrary testimony of the driver of the truck, Calvin Nedd, that on the occasion in question on August 15 Campbell did not tell him "to drive [his truck] over the employee pickets." William Gray was the only witness the General Coun- sel called upon to testify in regard to other occasions when Campbell allegedly instructed "employees, within the presence of employee pickets, to drive trucks over the employee pickets." Gray testified that he heard Campbell say "run over [the pickets] if they got in the way . . . [a]bout three times, I guess." According to Gray's further testimony, the first incident occurred at :' Suggs also testified, "W]e were all in front of the truck, we were slowing them all down. There was no trucks going through without us hassling the drivers, saying 'you scab,' and so forth." EXCAVATION-CONSTRUCTION, INC. 665 the Bladensburg premises on or about August 16 or 17, when somebody stopped one of the trucks and Campbell in a normal voice told the driver to "[d]rive over them if they get in the way." The second incident occurred on August 15 at the A-14 site and has been described above. The third incident, however, did not involve Campbell. According to Gray, early in the day on August 15 at the Rockville site, James Woodward was talking to a person in a red Mustang when Timothy Lyons approached them and "told the driver to come on in that they were hiring drivers and the driver was talk- ing to Mr. Woodward and that was when Mr. Lyons told him to go ahead, run over them, go on in, they were hiring drivers." Gray's testimony is completely un- corroborated and denied by Respondent's witnesses. I do not credit Gray and find that the General Counsel has not proved that on any occasion Campbell told truck- drivers to run over pickets. 35 The third headed allegation refers to the altercation that took place between Campbell and Woodward at the A-14 site in the afternoon of August 15. Campbell was seeking to move the Company's trucks past the picket line while Woodward was instructing the pickets to stand fast. Ultimately there was a confrontation between Campbell and Woodward. Campbell pushed Woodward and Woodward picked up a shovel with which he threat- ened Campbell. Both men backed away when other per- sons in the area interceded. Some witnesses for the Gen- eral Counsel testified that Campbell started to pull an object out of his pocket which appeared to be a gun. Campbell denied that he had a gun with him and I credit Campbell in this respect. While the first laying on of hands was by Campbell, his action was provoked by Woodward refusing to permit the trucks to pass and in- structing the pickets not to move. Whether or not the conduct of Campbell constituted a technical assault, I find that, in the circumstances where Woodward and the pickets belligerently were preventing the Company from driving its trucks out of the A-14 jobsite, the altercation between Campbell and Woodward did not within the meaning of Section 8(a)(l) interfere with, restrain, or coerce employees, particularly the employees involved and present at the A-14 site at the time in question, in the exercise of their right to strike or any other right guaranteed by Section 7. I find that the General Counsel has not proved, and therefore I shall dismiss, paragraphs 6(c), (d), and (g) of the complaint. 4. The conduct of Earl Jones, on or about August 19, 1978, in telling an employee that his return to work would be conditional upon the employee's refusal to assist a union official in a civil action for assault brought by the union official against Larry Campbell (par. 6)) No evidence was offered by the General Counsel in support of this allegation of the complaint. Accordingly, I shall recommend its dismissal. 35 Campbell instructed drivers to move their trucks across the picket line, but such instruction is not alleged in the complaint to be an unfair labor practice 5. The conduct of Samuel Lanham, Earl Jones, and Walter Jones on or about August 14 and 15, 1978, and other dates in August 1978 (the exact date not known to me), in photographing employees engaged in picketing at the Rockville, Maryland, and Florida Avenue and Benning Road, Washington, D.C., jobsite (par. 6 (e)) The Union commenced its strike against the Company on August 14. Sometime during that day, Larry Camp- bell received reports that employees seeking to go to work were threatened with bodily harm if they crossed the picket line and that the striking employees were en- gaging in mass picketing which interfered with ingress to and egress from the Company's jobsites. Campbell con- sulted his attorneys who advised him that they would commence a proceeding to enjoin the alleged unlawful strike activity and who instructed Campbell to take pho- tographs for use as evidence in such proceeding, which would depict what was occurring at the picket lines. During the next 2 days, Earl Jones and Walter Jones took nine still photographs of the picketing activity. Al- though motion papers for an injunction were drafted by the Company's attorneys, the proceeding was not pur- sued further because the mass picketing of the Compa- ny's jobsites was discontinued. The evidence adduced at the instant hearing, regarding what occurred on August 15 at the A-14 site alone, would seem to support the Company's contention that it had reasonable justification for believing that the Union was engaging in impermissi- ble strike conduct, and that if such strike conduct contin- ued it was entitled to a civil injunction against the same. It is well established that "photographing strikers en- gaged in picketing or employees engaged in other union activities constitutes illegal interference, restraint, and co- ercion . . " in the "absence of any proper justification therefor . ."36 In this case, the photographs of the striking employees were taken for a legitimate purpose, to wit, to secure evidence to support an application to an appropriate state court for an injunction. Accordingly, I find no violation of the Act by reason of the photo- graphs taken of the striking employees by Respondent on August 15 and 16.3 7 6. The conduct of the Employer by a photgrapher, whose name is not known to me, on or about August 26, 1978, at the Bladensburg, Maryland, location, in photographing a union official in the presence of employee pickets (par. 6 (f)) The only evidence adduced in support of this allega- tion of the complaint is the vague and uncertain testimo- ny of Union Vice President Williams. He testified: A. I'm not sure I testified here today about pho- tographs, but in my affidavit it states there were photographs made. There were photographs made. s6 Puritana Manufacturing Corporation, 159 NLRB 518, 519, fn. 2 (1966). 37 Matlock Truck Body & Trailer Corp., and its agent Roy L. Matlock, 217 NLRB 340, 352 (1975): Cavalier Division of Seeburg Corporation and Cavalier Corporation. 192 NLRB 290, 296 (1971); Stark Ceramics Inc.. 155 NLRB 1258, 1269 (1965), enfd 375 F.2d 202 (6th Cir 1967); Hilton Mobile Htomes, 155 NLRB 873, 874 (1965). 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Of whom were the photographs made up? A. They were photographs made up while I was sitting there in the lobby .... I'm not sure if he was shooting at me .... When we came out of the office, the other people came out of the meet- ing, there were photographs taken of the [union] president and others who were coming out of that door. Q. That was the door to the company offices? A. That is correct. Q. At the time the photographs were made of you and the other union officials leaving the compa- ny building, isn't it a fact there were no employees around? WITNESS: I don't believe there were any employ- ees there. I shall recommend that this allegation of the complaint be dismissed for two reasons. First, there is no evidence that the Company was responsible for any photographs that might have been taken at the time referred to by Williams and, second, no employees were present when the incident occurred. 7. Since on or about the dates indicated Respondent has refused, and continues to refuse, to bargain in good faith with the Union by the following acts and conduct (the conduct set forth above in par. 6) This allegation in the complaint in Case 5-CA-9813 is to the effect that the 10 specifically alleged violations of Section 8(a)(1) also constitute in the aggregate a viola- tion of Section 8(a)(5). The theory as expressed in Gen- eral Counsel's brief, is that "Respondent's conduct away from the bargaining table disparaged and undermined the Union and its representatives in violation of Section 8(a)(5) of the Act." The only authority cited by the Gen- eral Counsel in support of this allegation of the com- plaint is Safeway Trails, Inc., 233 NLRB 1078 (1977). I shall dismiss this allegation of the complaint for two rea- sons. First, except for the single interrogation of Union Shop Steward Gray by Campbell on August 12, I have found that the General Counsel failed to prove the al- leged 8(a)(1) violations and, second, even if all the 8(a)(l) allegations of the complaint had been proved, the princi- ple of Safeway Trails, Inc., would not be applicable. H. The Character of the Strike The complaints in both cases allege that the strike which began on August 14 was caused and has been pro- longed by Respondent's unfair labor practices. I have found that the discharges of Wellons, Suggs, and Robin- son on July 17 violated Section 8(a)(1) and (3). There- after, their terminations intruded upon the dealings be- tween the parties. Thus, at the August I negotiating ses- sion, the union representatives advised the Company that "any kind of settlement that we would have [will require that] our people [be] reinstated with all back pay and no loss of seniority and Mr. Siegel responded that he didn't think he would have any problem reinstating them, but there would be no backpay at that time, however, he would not give . . . a definite answer." Then, at the August 9 negotiating session Union President George again asked the Company to reinstate the three dis- charged drivers. The Company offered to reinstate them but without backpay. This offer was rejected. On August 12 Larry Campbell, after questioning Union Shop Ste- ward William Gray about what was expected to tran- spire at the union meeting scheduled for the next day, entered into a discussion about the discharge of the three drivers, particularly Suggs. The vote which authorized the August 14 strike was taken at a union meeting held on August 13. Although of principal concern was the Company's insistence upon a Saturday makeup day, nevertheless, the issue of the three discharged employees was discussed at the meeting and the Union's leadership indicated that they would not agree to any contract settlement which did not provide for the reinstatement of the terminated employees. The principle is well established that "when it is rea- sonable to infer from the record as a whole that an em- ployer's unlawful conduct played a part in the decision of employees to strike, the strike is an unfair labor prac- tice strike."3 8 Furthermore, "it is not necessary to adduce specific proof of the causal connection between the Respondent's actions and the strike" because "[t]he Board has held in numerous cases that such a connection may be inferred from the record as a whole." 39 Here, the connection between Respondent's unfair labor practices and the strike is manifest. Wellons, Suggs, and Robinson were discharged on July 17. Less than a month later, on August 14, the strike began. At the bar- gaining sessions held on August 1 and 9, the Union spe- cifically informed the Company that a satisfactory reso- lution of the issues raised by these discharges was a nec- essary prerequisite to the successful conclusion of their negotiations. The same subject again was raised on August 12 in a discussion between General Manager Campbell and Union Shop Steward Gray. Finally, at the union meeting of August 13, when the strike vote was taken, Union President George informed the members that the Union would not agree to any contract settle- ment that did not include the reinstatement of the dis- charged employees. The fact that other issues, the Satur- day makeup day in particular, may have had a greater influence upon the decision to strike than the discharges does not change the character of the strike. As the court observed in the Steelworkers cases, "[t]hough economic issues were also involved in the strike, it is well settled that 'if an unfair labor practice [has] anything to do with causing the strike, it [is] an unfair labor practice strike."' 4 Respondent argues, "[e]ven assuming, ar- guendo, that the Respondent committed some unfair 38 Larand Leisurelies. Inc., 213 NLRB 197, 198, fn. 4 (1974), enfd. 523 F 2d 814 (6th Cir 1975). 39 Tarlas Meat Company, 239 NLRB No. 200 (1979). 4o United Steelworkers of America AFL-CIO [Mississippi Steel Corp.] v. .VL.R.B., 405 F.2d 1373, 1377 (D C.Cir. 1968). Accord: Matlock Truck Body & Trailer Corporation, supra. EXCAVATION-CONSTRUCTION, INC. 667 labor practices, such action would not necessarily render the strike an unfair labor practice strike. In this regard, the burden is upon the General Counsel to prove by sub- stantial evidence that such unfair labor practices were a 'principal cause' of the strike." The law, however, is to the contrary. "[T]he burden is on the Respondents to demonstrate that the strike would have occurred and would have continued irrespective of its unfair labor practices, rather than upon the General Counsel to dem- onstrate the contrary, that is, that but for Respondents' unfair labor practices, there would have been no strike and that it would not have lasted so long."4 ' I find, therefore, that the strike which began on August 14 was caused by Respondent's unfair labor practices. tI. THE EFFECT OiF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section 1, above, occurring in connection with its operations de- scribed in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. Ill. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent unlawfully discharged employees Ernest Wellons, Milton Suggs, and James Robinson on July 17, 1978, 1 shall recommend that Re- spondent offer each of them immediate and full reinstate- ment to his former job or, if that job no longer exists, to a substantially equivalent position, without prejudice to his seniority and other rights and privileges previously enjoyed, and make him whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from the aforesaid date of his termination to the date of Respon- dent's offer of reinstatement, less his net earnings during such period. The backpay provided for herein shall be computed on the basis of calendar quarters, in accor- dance with the method prescribed in F. W Woolworth Company, 90 NLRB 289 (1950). Interest thereon shall be computed in the manner prescribed in Florida Steel Cor- poration, 231 NLRB 651 (1977).42 I have also found that the strike, which began on August 14, 1978, was caused by Respondent's unfair labor practices. Accordingly, I shall recommend that, upon application for reinstatement, 4 3 Respondent shall '' he Lundy Packing Company, 223 NLRB 139., 158 1976), enfd 549 F.2d 300 (4th Cir 1977), cert. denied 434 S. 818 Accord Larand Lei- surehles v. .AL.R.B., supra. 42 See, generally, Ius Plumbing & Heating Co., 138 NLRB 716 (1962) 43 The General Counsel introduced in eidence a telegram from the Union to the Company dated November 6, 1978, which reads, "Team- sters ocal Union #639 on behalf of all bargaining unit employees, hereby makes its unconditional offer for the return Io wsork of all such employees" However, the complaint contains no allegation that Respon- reinstate to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without im- pairment of their seniority or other rights and privileges, all those employees who participated in the strike which began on August 14, 1978, and who have not already been reinstated, dismissing, if necessary, any persons hired as replacements on or after August 14, 1978. If, after such dismissals, there are insufficient positions re- maining for all the striking employees who desire rein- statement, the available positions shall be distributed among them, without discrimination because of their union membership, activities, or participation in the strike, in accordance with seniority or other nondiscri- minatory practice as theretofore was applied by the Company in the conduct of its business. Those strikers for whom no employment is immediately available after such distribution shall be placed upon a preferential hiring list with priority determined among them by se- niority or by such other nondiscriminatory' practice as theretofore was applied by the Company in the conduct of its business and, thereafter, in accordance with such system, they shall be offered reinstatement as positions become available and before other persons are hired for such work. I shall also recommend that Respondent make the striking employees whole for any loss of earn- ings they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate them, by pay- ment to each of them of a sum of money equal to that which he normally would have earned during the period from 5 days after the date on which he applied, or shall apply, for reinstatement, to the date of Respondent's offer of reinstatement to him, absent a lawful justification for Respondent's failure to make such offer. Backpay shall be computed and interest thereon shall be added in accordance with the remedial provisions described above. Upon the basis of the foregoing findings of fact and upon the entire record in these cases, I make the follow- ing: CONCLUSIONS OF LAW 1. By discriminatorily discharging Ernest Wellons, Milton Suggs, and James Robinson on July 17, 1978, thereby discouraging membership in the Union, Respon- dent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8(a)(3) of the Act. 2. By reason of the foregoing and by reason of the un- lawful interrogation of employee William Gray by Gen- eral Manager Larry Campbell on August 12, 1978, Re- spondent has interfered with, restrained, and coerced em- ployees in the exercise of the rights guaranteed them in Section 7 of the Act, and thereby has engaged in unfair labor practices within the meaning of Section 8(a)(l) of the Act. 3. The strike which began on August 14, 1978, is an unfair labor practice strike. dent unlawfully has refused to reinstate the striking employees Accord- ingly, the issue as to whether a valid request for reinstatemert was made and whether Respondent unlaw fully has refused to reinstate the striking employees shall be deferred to the compliance stage of these proceedings 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]