Lion Oil Co.

680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD LION OIL COMPANY and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 15-CA-488. August 5,1954 Decision and Order On July 30,1953, a majority of a panel of the Board issued proposed findings of fact, proposed conclusions of law, and proposed order in the above-entitled case, finding that the Respondent had engaged in certain unfair labor practices and ordering that it cease and desist therefrom and take certain affirmative action as set forth in the pro- posed findings, conclusions, and order, attached hereto. Thereafter the Respondent filed exceptions to the proposed findings, conclusions, and order, a supporting brief, and a request for oral argument. On September 24, 1953, at Washington, D. C., the Board heard oral argu- ment in which the Respondent, the Charging Union, and the General Counsel participated. Thereafter, in the light of the exceptions, brief, and oral argument, the Board has reviewed the proposed findings, conclusions, and order and only insofar as they are consistent with this Decision and Order hereby adopts the panel's proposed findings, conclusions, and order. 1. The first issue that must be decided in this case involves inter- pretation of the notice provisions of Section 8 (d) of the Act. The Respondent contends that the Union failed to observe the waiting re- quirements of that section before striking to enforce its demands, and that by such conduct it removed the striking employees from the pro- tection of the Act. We do not agree. The pertinent facts are not in dispute. In 1950 the Respondent and the Union entered into a collective-bargaining contract which by its terms was to remain in effect until October 23, 1951, and was to con- tinue in force thereafter for an indefinite period, subject to cancella- tion on notice by either party. Specifically, the duration clause per- mitted 60 days' notice to amend on or after August 24, 1951, and if the parties did not agree on a new contract after that period, a further 60 days' notice to terminate the contract completely.' 1 This clause reads as follows : This agreement shall remain in full force and effect for the period beginning October 23, 1950, and ending October 23, 1951 , and thereafter until cancelled In the manner hereinafter in this Article provided. This agreement may be cancelled and terminated by the Company or the Union as of a date subsequent to October 23, 1951 , by compliance with the following procedure : (a) If either party to this agreement desires to amend the terms of this agree- ment, it shall notify the other party In writing of its desire to that effect , by regis- tered mail. No such notice shall be given prior to August 24, 1951. Within the period of 60 days, immediately-following the date of the receipt of said notice by the party to which notice Is so delivered, the Company and the Union shall attempt to agree as to the desired amendments to this agreement. (b) If an agreement with respect to amendment of this agreement has not been reached within the 60-day period mentioned In the subsection immediately 109 NLRB No. 106. LION OIL COMPANY 681 On August 24, 1951, the Union notified the Respondent and the Federal Mediation and Conciliation Service of its desire to amend the contract and of the existence` of a- labor dispute, and sent a-copy of its letter to the State Labor Commissioner for the State of Arkansas. Negotiations on modification of the contract began on August 29, 1951. On February 14, 1952, the employees voted to strike and notified the Respondent. The strike, after several postponements, occurred on April 30, 1952. On June 21, 1952, the employees offered to return to work, and the Respondent refused to reinstate them. A new contract and a strike settlement were executed on August 3, 1952, and on August 4 the strikers began to return to work. The August 24, 1951, notices of the existence of a labor dispute were adequate in content and destination to meet the formal requirements of Section 8 (d), and we so find. The issue then is whether the Union's resort to economic action was so timed with respect to the notices as to satisfy the waiting period set out in the section. Because of the importance of this issue and because the section since its enactment has so seldom required construction by the Board, we deem some general comment on its meaning advisable. The pertinent language of the section is set out below.' The fundamental purpose of the section is to assure that, once parties have stabilized their bargaining relationship by entering into a contract, the stability achieved will not be placed in jeopardy by strikes or lockouts. It is for this reason that the section provides for a waiting period before strike or lockout action by the parties. Clear- preceding, either party may terminate this agreement thereafter upon not less than sixty days' written notice to the other. Any such notice of termination shall state the date upon which the termination of this agreement shall be effective 2 Section 8 (d) . . . where there is in effect a collective -bargaining contract covering employees in an industry affecting commerce , the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract , unless the party desiring such a termination or modification- (1) serves a written notice upon the other party to the contract of the pro- posed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification ; (2) offers to meet and confer with the other party for the purpose of nego- tiating a new contract or a contract containing the proposed modifications ; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute , and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate dis- putes within the State or Territory where the dispute occurred , provided no agree- ment has been reached by that time ; and (4) continues in full force and effect , without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract , whichever occurs later; . Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the par- ticular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended, . . . 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ly, Congress was interested in establishing an orderly procedure for contract negotiations and in-preventing the industrial unrest that is the natural consequence of the failure of parties to abide by their collective-bargaining agreements.3 With the congressional purpose as a background, we advert to the language itself of Section 8 (d). It is to be noted that the initial phrase of the notice provisions contained in the section, which neces- sarily applies to all the following subdivisions, reads : "Where there is in effect a collective-bargaining contract covering employees . . . no party . . . shall terminate or modify such contract, unless...." Thus, the plain wording of the section makes the required notices man- datory at all times when collective-bargaining agreements are in effect, not only when a party desires to terminate but equally when a party seeks to modify a contract.4 It is argued that the notice provisions of the section are applicable only when a contract is about to end. It would be futile, however, in our opinion, to require a waiting period for strikes and lockouts only at a time when the parties are already on notice, by virtue of their own agreement, of the imminence of termination. That such limited view could not have been the con- gressional intent is not only shown by the plain and unambiguous lan- guage set out above, but also by the fact that there is no logical dis- tinction-in the perspective of the congressional objective of promot- ing industrial peace-between one period of a contract and another. Certainly, it is as desirable to discourage interruptions to the free flow of commerce arising from labor disputes during the life of a bargain- ing agreement as at or near its termination. Turning now to the situation presented by the instant case, the critical provision is 8 (d) (4), which provides that the employer and union shall continue in effect the existing contract, without resorting to strike or lockout for "sixty days after such notice is given or until the expiration date, whichever occurs later." [Emphasis supplied.] It is urged that, despite the plain wording of the statute, Congress intended that 60 days constitute the maximum waiting period before strike or lockout. We are unable to agree. If that had been the intent, there would have been no point in Congress inserting in 8 (d) 3It is evident from the legislative history of the 1947 amendments to the Act, which include Section 8 (d), that Congress was generally concerned with promoting industrial peace by having parties adhere to collective-bargaining agreements. Thus, the Senate Committee on Labor and Public Welfare in its report among other things said : "Statutory recognition of the collective agreement as a valid and enforceable contract is a logical and necessary step It will promote a higher degree of responsibility upon the parties of such agreements , and will thereby promote industrial peace " S. Rep . No 105 on S 1126, p 17. * Senator Ball , a proponent of Section 8 (d), said: "The provision . . . provided that where a contract between a union and an employer is in existence , fulfilling the obligation on both sides to bargain collectively means giving at least 60 days' notice of the termina- tion of the contract , or of the desire for any change in it, is another provision aimed pri- marily at protecting the public, as well as the employee, who have been the victims of `quickie' strikes " [ Emphasis supplied.] Cong. Rec., May 12, 1947, p. 5146. LION OIL COMPANY 683 (4) the phrase "until the expiration date" or the additional phrase "whichever occurs later." The language of 8 (d) (4) is not ambiguous and cannot be amended or rewritten by administrative interpretation. Moreover, if resort be had to legislative history, it appears that Sen- ator Taft, the coauthor of the Act, made it clear that 8 (d) (4) re- quires a waiting period before strike or lockout during the life of a contract when he said : "If such notice is given, the bill provides for no waiting period except during the life of the contract itself.75 Our primary problem, it seems to us, therefore, is to ascertain what Congress meant by "expiration date" in this context. Once this is determined as applied to the various types of contracts in use in the labor field, our task is greatly simplified, since we then have dis- covered a fixed pole against which to measure the waiting period. That is to say that the application of Section 8 (d) (4) then becomes a matter of simple arithmetic. If the notice is given more than 60 days before the expiration date, the expiration date becomes the critical date prior to which no strike or lockout is lawful; likewise, if the notice is given less than 60 days before the expiration date, then the 60-day period extending beyond the expiration date is controlling. If Section 8 (d) is considered both in the framework of industrial reality 6 and in the perspective of the congressional purpose to protect the stability of collective-bargaining agreements against strikes and lockouts during the life of the contract, it becomes clear that Con- gress used the term "expiration date" to signify the date in the course of a labor contract when the contract, by its own terms, is subject to either modification or termination, regardless of whether notice is re- quired explicitly by the agreement. The term "expiration date" as used in Section 8 (d) (4) thus has a twofold meaning; it connotes not only the terminal date of a bargaining contract, but also an agreed date in the course of its existence when the parties can effect changes in its provisions. Under this view, the expiration date of a fixed term contract with no provisions for reopening is the actual terminal date. In this connection, we do not say that Congress intended by Section 8 (d) to convert contracts for fixed terms into contracts at will, terminable G Cong Ree , April 23, 1947, p 3952. The Senate Minority Report, in objections to Sec- tion 8 (d) stated: "Since not every collective bargaining contract contains a no-strike clause, the effect of the proposal is to incorporate such provisions by legislative fiat." S Min Rep No 105, Pt 2, on S 1126, p. 22. It is significant that notwithstanding this contention , the section was passed by Congress in its present form. 9 For example, the Board with court approval has held that with respect to Section 8 (d) notice of intention to modify a bargaining contract in substantial respects is the equivalent of notice to terminate. J. W. Woodruff, Sr. d/b/a Atlanta Broadcasting Company, 90 NLRB 808, 811, enfd 193 F 2d 641 (C A. 5) ; Great Bear Logging Company, '59 NLRB 701, 703; American Woolen Company, 57 NLRB 647, 649 ; Atlas Felt Products Company, 68 NLRB 1, 3 ; William Barnett & Son, Inc., 74 NLRB 81, 82, 83. Accord : Moran Shoe Co. and United Shoe Workers, Local 200-A, 2 Amer. Labor Arbitration Awards, 67, 880 (Sept 25, 1947 ) ; Anderson v. Tuoms, et al, 230 Minn 490, 42 N. W. 2d 204 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on 60 days' notice. The "expiration date" of a contract containing an automatic renewal clause-i. e., an agreement subject to modification or termination upon notice at fixed annual periods-is the earliest date on which modification or termination could be effective. We think the same rule applies to a contract for a fixed term providing for a wage reopening at a prescribed period. Similarly, in contracts of in- definite duration, which are rare in labor relations, the 60-day notice to modify or terminate would fix the period during which lockouts and strikes are proscribed. Our dissenting Member, Mr. Murdock, characterizes this interpre- tation of the statute as reading a no-strike clause into every contract. This characterization misapprehends the purport of our decision. Our interpretation preserves the right to strike in all circumstances where the parties have provided in their agreement for negotiating substantial changes in its provisions-if the statutory requirements of Section 8 (d) are met. Moreover, our decision has no bearing on the right to strike for reasons and purposes other than to obtain con- tract modification or termination. We say only that strikes to alter the provisions of a firm contract of fixed duration, and containing no provision for modification, must await the termination date. Member Murdock's interpretation of Section 8 (d) destroys, in our opinion, the obligation of the parties to abide by the terms of a collective-bargain- ing agreement. For he would permit strikes and lockouts to force changes in the terms of a bargaining agreement at any time during its lifetime, rather than only at such time as was contemplated by the parties when they entered into the agreement. In fine, Member Mur- dock's interpretation defeats the congressional purpose of promoting stability in bargaining relationships. Our holding, moreover, supports the prime objective of the Act as a whole, to encourage the "practices and procedures of collective bar- gaining." It has been stated too often to bear repetition that the ulti- mate achievement of collective bargaining is the contract itself. If, as we believe, Congress, in the 1947 Amendments to the Act, deemed it wise through Section 8 (d) to insist upon adherence to fixed contracts voluntarily negotiated and executed, its step only furthered the basic purpose of the Act itself. Nor, in the light of experience, is our con- struction inconsistent with the actualities of industrial life. Contracts for fixed periods are not made to be broken. That the intention to be bound by the established expiration date is ever present during negotiations is conclusively evidenced by the stress always placed in contract negotiations on wage reopening-or other modification- clauses. These clauses, now almost universal in bargaining contracts exceeding 1 year in duration, are in effect qualifying reservations of LION OIL COMPANY 685 the privilege to economic action at dates earlier than the final termi- nal day.7 On this point, we feel that we should comment on the critical sig- nificance which Member Murdock attaches to the differences between contractually provided notices to modify and notices to terminate.8 The inconsistency between such a view and the salutory purposes of the entire section is especially illustrated by this very case. Thus, under Member Murdock's interpretation, we take it that the Union was free to strike without giving any notice whatsoever in August 1951, since this was presumably not "around the expiration date of the contract." This is apparently so for the reason that the contract had no fixed expiration date. However, our colleague would further hold that, having given notice to modify, the Union by its own action in seeking to comply with 8 (d) (at a time when he thinks it was not required by 8 (d) to do so) created an obligation to give a second notice and then await the final termination of the agreement before it could lawfully strike. In short, the Union, under his interpretation, could have struck without any notice in August, but, by virtue of giving the notice, and having exhausted all the mediating and negoti- ating requirements of Section 8 (d) could not lawfully strike the fol-. lowing April. We cannot accept this proposition. In our opinion, (1) this view would encourage resort to "quickie" strikes and lockouts in the middle ,of a contract term, (2) it would encourage the termination of con- tracts as opposed to their modification, and (3) it would penalize a union which withholds strike action for a protracted period in an effort to reach agreement rather than merely observing the minimum )waiting period provided in the statute. We are certain that Congress did not intend that Section 8 (d) should have such unsettling results. It suffices for our decision here that the contract specifically pro- vided for modification and that the earliest date on which modifica- tion could be made effective was October 23, 1951. The notice was given precisely 60 days before that date. As the notice was served on August 24, the end of the 60-day statutory period and the date fixed in the contract for making modifications (which, as indicated above, we consider tantamount to "expiration" as that term is used in Section 8 (d) (4)) coincided.9 Thus, the Union, before striking to enforce its economic demands satisfied the statutory requirements, 7 In discussing the union's duty to bargain as set out in Section 8 (b) (3) and (8) (d) of the 1947 Amendments, Senator Morse said : "A contract has been signed, and I take the position this afternoon , as I have taken the position in many cases, that the union, once it signs a contract has no sight to strike during the life of the contract if the strike is to force a change in the terms of the contract " 8 As noted above, the Board has repeatedly refused to distinguish between notice to modify and notice to terminate , considering them for the purposes of Section 8 (d) one and the same thing 8 See American Lawn Mower Company, 108 NLRB 1589. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and consequently the striking employees never lost the protection accorded economic strikers by the Act. Our decision in this case is not inconsistent, we believe, with the interpretation which the Court of Appeals for the Eighth Circuit placed upon Section 8 (d) in its opinion in the Wilson case. Local No. 3, United Packinghouse Workers of America, CIO v. N. L. R. B. 210 F. 2d 325, 331-333. In that case, a strike was called more than 60 days after the giving of notices of the kind required by Section 8- (d), but before the expiration date of a contract between the Com- pany and the Union. A majority of the Board in the Wilson case had concluded that Section 8 (d) prohibits a strike to secure modifi- cation or termination of a contract only for a period limited to 60 days after the notices required by the section have been given, and had held that the strike in question did not contravene the section because the 60-day waiting period had been satisfied . The court of appeals believed , however, that the strike contravened Section 8 (d) because it occurred before the expiration date of the bargaining con- tract. Because of the basis on which the Board decided the Wilson case, the construction of 8 (d ) which we adopt here was not presented by the Board to the court. Leaving aside the effect of the wage re- opener, we agree with the view of the court of appeals, consistent with the opinions expressed herein, that the 60-day notice period is not the maximum waiting period. Subject to the construction which we have given to Section 8 (d) here, we adopt the view that the waiting period extends until the "expiration date" of the contract. In this case, it is clear that the statutory waiting period has here been satisfied since the strike herein occurred after the "expiration date" of the parties' agreement had passed. 2. A majority of the panel of the Board in the proposed findings, conclusions of law, and order found that the Respondent had violated Section 8 ( a) (3) and ( 1) by certain conduct. We agree that the Respondent has violated these sections of the Act for the following reasons: During contract negotiations , on April 29, 1952, the Respondent informed the Union that it wanted a no-strike clause in the contract. Subsequently, at other meetings, the Respondent stated that it would not sign an agreement which did not contain a no-strike clause and a. termination clause which did not provide for automatic renewal. The Union was informed by the Respondent on June 20 , 1952, that the strikers had not been replaced . On June 21 , 1952, the Union un- conditionally offered to return the employees to work. The Respond- ent replied that it would not permit the employees to return until a new agreement had been reached which included a no-strike clause and the termination clause which it wanted . After the offer to return to work was rejected , the Union requested a meeting on grievances to LION OIL COMPANY 687 present the employees' claims to 2 weeks' pay in lieu of notice of layoff under the old contract. The Respondent refused to entertain any grievances. On June 23, 1952, the Union repeated its offer to have the employees return to work. On the same date the Respondent sent a letter to the Union and mailed copies to the strikers at their homes. The Respond- ent's letter stated (details are set forth in the proposed findings) that it would not settle the dispute until the employees represented by the Union agreed not to strike for a 1-year period. The Respondent on June 21, 1952, and subsequently, refused to permit the employees to return in a group and on June 23, 1952, notified the strikers that they could not return until the Union had signed a contract providing for agreement not to strike for 1 year. On June 21, 1952, and for several days, many employees, individually and in groups, made offers to return to work. As stated in the pro- posed findings, they were informed that they would have to speak to the plant superintendent who in many cases was not available. Dur- ing this time, however, certain employees were permitted to go to work after they had been individually interviewed by the plant super- intendent upon the agreement and under the condition that they would remain at work. Significantly, the Respondent resumed opera- tions in its sulphuric acid section on June 25, 1952, and in the am- monium sulphate section on June 26, 1952, both of which had been shut down during the strike. Thus, on June 21, 1952, and the following days, the Respondent interviewed individual strikers and reinstated them upon their assur- ance that they would not strike. At the same time the Respondent refused the Union's offer to have the strikers return until, among other things; the Union agreed to a no-strike clause for a 1-year period, a condition which the Union was resisting. This position of the Re- spondent was communicated to all the strikers by the Respondent's letter. As this conduct required employees, as a condition of em- ployment, to give up their adherence to the Union as their bargaining representative in this respect and to return after personal interview as individuals, and not as a group, it constituted discrimination, coer- cion, restraint, and interference violative of the Act, as to the strikers who continued to adhere to the lawful bargaining position of their statutory representative. In the circumstances of this case, therefore, we find that the Re- spondent violated Section 8 (a) (3) and (1) of the Act by discrimina- torily refusing to reinstate the employees listed in the complaint, as it rejected the Union's attempts to get the strikers back to work, but at the same time individually interviewed the strikers and reinstated them upon their assurance that they would not strike. 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A majority of the panel also found that the Respondent had violated Section 8 (a) (5), and thereby Section 8 (a) (1), of the Act, by certain conduct set forth in detail in the proposed findings, conclu- sions, and order. We agree with the panel's conclusions in this respect, but we do not adopt all the grounds upon which the panel based its proposed conclusion. We find, however, for the reasons stated in the proposed findings, conclusions, and order that the Respondent violated Section 8 (a) (5) and (1) by (1) dealing with the individual strikers at a time when it refused to deal with the Union on the return to work of the employees, following the Union's abandonment of the strike by its unconditional offer to return the strikers; and (2) by making the withdrawal of unfair labor practice charges a condition precedent to the signing of a contract. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Lion Oil Com- pany, El Dorado, Arkansas, its-officers, agents, successors, and as- signs, shall: 1. Cease and desist from : (a) Discouraging membership in Oil Workers International Union, CIO, or in any labor organization, by discharging, or refusing to reinstate, any of its employees, or by discriminating in any other manner with regard to their hire, tenure of employment, or any term or condition of employment. (b) Refusing to bargain collectively with Oil Workers Interna- tional Union, CIO, as the exclusive representative of the employees in the unit herein found to be appropriate. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights of self-organization, to form labor organizations, to join any labor organization, to bargain collec- tively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Make whole the employees who went out on strike on April 30, 1952, and who are listed in the complaint herein for any loss of pay they may have suffered by reason of Respondent's discrimination against them, in the manner set forth in the section entitled "The Rem- edy" in the attached proposed findings. LION OIL COMPANY 689 (b) Post at its plant in El Dorado, Arkansas, copies of the notice attached hereto, marked "Appendix A." 10 Copies of such notice, to be furnished by the Regional Director for the Fifteenth Region, shall, after being duly signed by Respondent's representative, be posted for sixty (60) consecutive days thereafter in conspicuous places, in- cluding all places where notices to employees customarily are posted. Reasonable steps shall be taken by Respondent to insure that said no- tices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the Fifteenth Region, in writ- ing, within ten (10) days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed insofar as it alleges that the Respondent discriminated against its employees in violation of Section 8 (a) (4) of the Act. MEMBER PETERSON , concurring : I agree with Chairman Farmer and Members Rodgers and Beeson in their ultimate findings that the Union complied with the applica- ble terms of Section 8 (d) of the Act and that the Respondent violated Section 8 (a) (1), (3), and (5) of the Act. However, in my view they adopt an artificial interpretation of the provision in paragraph numbered (4) of Section 8 (d), which requires maintenance of the contractual terms and conditions, without resort to strike or lockout, "for a period of sixty days after such notice is given or until the ex- piration date of such contract, whichever occurs later." It seems apparent to me that the prime purpose of Congress in en- acting Section 8 (d) was to prevent "quickie" strikes or precipitate lockouts designed to secure the modification or termination of collec- tive-bargaining agreements. To accomplish this purpose, Congress established a mandatory 60-day "cooling off" period during which either party to a labor agreement is forbidden to resort to economic action to enforce its demands for modification or termination of the contract. In my opinion, the duty to maintain the contractual status quo for 60 days attaches whenever the parties enter into negotiations to modify or terminate a contract. That was the reasoning of the Board majority in the Wilson case,1' and I would adhere to it. By giving the term "expiration date" a specialized meaning, for which I find no warrant in the Act or its legislative history, my col- leagues in the majority establish a "fixed pole" against which the waiting period is to be calculated or measured. They say "expira- tion date" means "the date in the course of a labor contract when the 10 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order " the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." 11 Wttson & Co , Inc., 89 NLRB 310. 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contract, by its own terms, is subject to either modification or termina- tion." They then hold that if a notice is given more than 60 days- before the expiration date, as they define the term, the obligation to refrain from economic action continues until the expiration date is reached. Thus, the "cooling off" period is enlarged beyond 60 days, and the effect is to hold strikes occurring more than 60 days after notice but before the contract expiration date to be unfair labor prac- tices. But Congress in Section 13 stated that nothing in the Act, "except as specifically provided for herein , shall be construed so as either to interfere with or impede or diminish in any way the right to strike. . . ." Moreover, it seems to me that Section 8 (d) itself, in stating that an employee loses his employee status if he "engages in a strike within the sixty-day period specified in this subsection ," indi- cates that Congress intended the "cooling off" period to be only 60 days in duration rather than a flexible period of 60 or more days depending on the time interval between the date notice is given and the contract "expires." Therefore, I do not think the Board would be warranted in interpreting Section 8 (d) so as to impair the right to strike for periods in excess of 60 days following the giving of notice. I readily concede that my construction of paragraph numbered (4) of Section 8 (d) does not give full effect to its literal language. As written, and viewed in isolation , that paragraph appears to require the maintenance of the contractual status quo until the expiration date of the contract-even though notice was given more than 60 days earlier-if the expiration date "occurs later" than the end of the 60- day period calculated from the date notice was given. But I think the result which follows from such a literal interpretation operates to write into many labor contracts a no-strike clause of substantially longer duration than 60 days , contrary to the intention of Congress, as expressed in the other paragraphs of this section, and elsewhere. I think such an extension of the statutory limitation on the right to strike can be avoided by construing the phrase "whichever occurs later" as having specific reference to a situation in which notice of de- sire to modify or terminate was given less than 60 days before the ter- mination date of the contract. I believe Congress wished to make clear that in such a case the 60-day "cooling off" period should be observed before economic action could be taken, even though it extended beyond the end of the contract. As pointed out by Senator Taft (Cong. Rec., April 23, 1947, p . 3955 ), if a party "waits, let us say, until 30 days be- fore the end of the contract to give the notice , then there is a waiting period provided during which the strike is an unlawful labor practice for 60 days from that time, or to the end of the contract and 30 days beyond that time." Applying my view of Section 8 (d) to the facts of this case , I would hold that the notice of desire to amend given by the Union on August LION OIL COMPANY 691 24, 1951, was adequate to meet the requirements of Section 8 (d). As the strike in support of this demand did not occur until April 30, 1952, 8 months after the giving of notice, there can be no question that the Union fully met the 60-day waiting period. Therefore, the strikers did not lose their status as employees, but on the contrary were en- titled to the protection of the Act. In addition to the reasons set forth in the main opinion, I would find that the Respondent's refusal to recognize the continuing existence of the contract and its refusal to permit the Union to administer it dur- ing the strike, are further grounds for finding that the Respondent violated Section 8 (a) (5) of the Act. i MEMBER MURDOCK, dissenting : I cannot agree with my colleagues in their interpretation of Section 8 (d) of the Act. In view of my interpretation of that section, the Union did not comply with it, and I am led to the ultimate conclusion that the complaint should be dismissed in its entirety. In 1950 the Respondent and the Union executed a contract contain- ing the following provisions with respect to the duration of the agree- ment. Article I This agreement shall remain in full force and effect for the period beginning October 23, 1950, and ending October 23, 1951, and thereafter until canceled in the manner hereinafter in this Article provided. This agreement may be canceled and terminated by the Com- pany or the Union as of a date subsequent to October 23, 1951, by compliance with the following procedure : (a) If either party to this agreement desires to amend the terms of this agreement, it shall notify the other party in writing of its desire to that effect, by registered mail. No such notice shall be given prior to August 24, 1951. Within the period of 60 days, immediately following the date of the receipt of said notice by the party to which notice is so de- livered, the Company and the Union shall attempt to agree as to the desired amendments to this agreement. (b) If an agreement with respect to amendment of this agreement has not been reached within the 60-day period mentioned in the subsection immediately preceding, either party may terminate this agreement thereafter upon not less than sixty days' written notice to the other. Any such no- tice of termination shall state the date upon which the termi- nation of this agreement shall be effective. The contract did not contain a no-strike clause. 334811-55-vol 109-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 24,1951, the Union notified the Respondent and the Fed- eral Mediation and Conciliation Service of its desire to amend the contract and of the existence of a labor dispute, and sent a copy of its letter to the State Labor Commmissioner for the State of Arkansas. Negotiations on modifications of the contract began on August 29, 1951. On February 14,1952, the employees voted to strike and notified the Respondent. The strike, after several postponements, occurred on April 30, 1952. On June 21, 1952, the employees offered to return to work, and the Respondent refused to reinstate them. A new contract and a strike settlement were executed on August 3,1952, and on August 4 the strikers began to return to work. On April 30, 1952, the date of the strike, the contract was in "full force and effect." With this finding the parties are in agreement. According to the provisions of the contract, it became one with no specific expiration date after October 23, 1951, unless canceled in the manner provided for in the contract. The method of termination is clearly defined in the contract. Either party desiring to amend the contract was to give such notice not earlier than August 24, 1951, 60 days before October 23, 1951. If agreement on modification was not reached within the 60-day period, the contract became one terminable upon the giving of 60-day notice of termination by either party. The record discloses that neither party gave the notice to terminate pro- vided for by the contract, and thus it continued in effect up to August 3, 1952, when a new contract was executed. Section 8 (d) Qf the Act not only provides certain standards by which the Board must determine whether employers and labor or- ganizations have fulfilled their duties to bargain collectively under the Act, but it also provides for the loss of employee status, for the purpose of the Act, to those employees covered by a contract who strike under certain conditions. The relevant portions of Section 8 (d) pertinent to a situation where a contract is in existence are as follows : . .. where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such con- tract shall terminate or modify such contract, unless the party desiring such a termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating' a new contract or a contract coiitdin= ing the proposed modifications ; LION OIL COMPANY 693 (3) notifies the Federal Mediation and Conciliation Serv- ice within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate dis- putes within the State or Territory where the dispute oc- curred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock-out, all the terms and conditions of the exist- ing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an em- ployee of the employer engaged in the particular labor dispute, for the purposes of Sections 8, 9, and 10 of this Act, as amended. . . . The proviso of Section 8 (d), in my opinion, applies only to the period around the expiration date of a contract and does not apply earlier during the term of a contract. The proviso enumerates the duties of contracting parties when they seek to terminate, renew, or renegotiate a contract for a fixed period upon the expiration of its term or when they seek to terminate or modify a contract of indefi- nite duration; it does not define the obligations of contracting parties with respect to changing the provisions of a contract during its term. The proviso only directs and encourages the bargaining efforts of parties to a contract during the crucial period when an existing con- tract is about to expire and negotiations for a succeeding contract are appropriate. Section 8 (d) describes the action which employers and labor or- ganizations must take to fulfill the duty to bargain required by the Act. The proviso to the section imposes additional obligations upon the parties where there is in effect a collective-bargaining contract, and certain procedural requirements are outlined in paragraphs (1), (2), (3),and (4). The language used throughout the proviso limits the application of the procedure set forth therein to termination or modification of a contract at its expiration date. Thus paragraph (1) of the proviso clearly says that a party desiring termination or modification of an existing contract shall serve a written notice of the proposed change "sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification." [Emphasis supplied.] It does not say that 60 days' notice must be given whenever a party wants to negotiate changes in a contract, but that notice must 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be given only at a particular time-immediately preceding the expira- tion date of the contract, or, if the contract has no expiration date, then 60 days prior to the proposed termination or modification. The latter provision obviously covers contracts of indefinite duration or one terminable at will as in this case. Paragraph (2) of the proviso requires a party desiring termination or modification of a contract to offer to meet and confer with the other party for the purpose of "negotiating a new contract or a contract containing the proposed modifications."' Such language points to the negotiation of a contract to succeed an existing contract upon its ex- piration date. Paragraph numbered (4) of the proviso directs that a party desiring to terminate or modify a contract shall continue in effect, without resort to strike or lockout, the terms of the contract "for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later." The notice referred to in this paragraph is the notice which paragraph numbered (1) states shall be given "sixty days prior to the expiration date" of a contract. Hence the 60-day period during which strikes and lockouts are banned by paragraph numbered (4) would ordinarily be the 60-day period immediately preceding the expiration date of a contract. However, in the event the party who is required to give notice delays and fails to give notice at the time specified in paragraph numbered (1), he is prohibited from engaging in a strike or lockout after the expiration date of the contract when he would otherwise be free to exert his eco- nomic force; he may not use such tactics until 60 days after he has given the required notice. Thus paragraph numbered (4) regulates the conduct of parties to a contract during the period around its expira- tion date. That part of Section 8 (d) after the outline of procedure to be followed by a party seeking termination or modification of a contract further demonstrates that the proviso applies only to termination or modification of a contract upon its expiration. Here Section 8 (d) explains that the duties imposed by paragraphs numbered (2), (3), and (4) shall become "inapplicable upon an intervening certification of the Board, under which the labor organization or individual, which is a party to the contract, has been superseded as or ceased to be the representative of the employees subject to the provisions of Section 9 (a)." [Emphasis supplied.] Under our well-known contract-bar policy the Board refuses to conduct representation proceedings when a bargaining contract is in existence, absent unusual circumstances. Therefore, an "intervening certification" would usually occur only during the period around the expiration date of a contract. Section 8 (d) further clarifies the proviso by stating that the obli- gations set forth in paragraphs numbered (2), (3), and (4) shall not LION OIL COMPANY '695 be construed as requiring either party to a contract for a fixed period to discuss modification of its terms if such modifications will become effective before the contract provides for the reopening of terms. Therefore the modifications contemplated by paragraphs numbered (2), (3), and (4) -modifications on which the parties have an obliga- tion to discuss-must be modifications which would become effective upon the expiration of the existing contract and which would ap- propriately be negotiated during the period around the expiration date of the contract. Finally, Section 8 (d) provides that "any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee . . . for the purposes of Sections 8, 9, and 10, of this Act." [Emphasis supplied.] This language contem- plates only one 60-day period, the notice period which paragraph numbered (1) declares shall begin 60 days before the expiration date of an existing contract. It does not contemplate a 60-day cooling- off period at any time during the term of a contract that one party de- sires to change the contract. The proviso does not purport to regu- late strikes or strikers at any time other than during this specified 60- day period. Not only does the wording of the proviso to Section 8 (d) show that Congress was prescribing certain standards of conduct during the period around the expiration of a contract, but the legislative history concerning the proviso also supports this view. The provisions of Section 8 (d) were derived from the Senate Bill. The Senate Report on S. 1126 referring to Section 8 (d) states: Another substantive feature of this subsection is a provision which relates to employers and labor organizations which are parties to collective agreements. Most agreements have an expiration date, with an automatic renewal clause in the absence of advance notice by either side of a desire to terminate or modify. Under this section, parties to collective agreements in the future would be required to give 60 days' notice in advance of the termination date, if they desire to terminate or amend. Should the parties fail to agree on a new contract in the next 30 days, the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse. Should the notice not be given on time, irrespective of the presence or absence of a 60-day clause in the collective agreement, it becomes an unfair labor practice for an employer to change any of the terms or conditions specified in the contract for 60 days or to lock out his employees. Similarly, it is an unfair labor practice by a union to strike before the expiration of the 60-day period. Any em- ployee who engages in a strike during the 60-day period would lose any rights under Sections 8, 9, and 10 of the Wagner Act, unless 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and until he is reemployed. It should be noted that this section does not render inoperative the obligation to conform to notice provisions for longer periods, if the collective agreement so pro- vides. Failure to give such notice, however, does not become an unfair labor practice if the 60-day provision is complied with. [Emphasis supplied.] (Sen. Rep. No. 105 on S. 1126, p. 25.) - The legislative history, as reflected in the remarks of Senator Taft on the floor of the Senate, also demonstrates that the purpose of the proviso, in his opinion, was to afford the parties to a contract adequate time "before the end of the contract" for free collective bargaining and the intervention of the Mediation Service. In this connection Senator Taft stated : We have provided in the revision of the collective bargaining pro- cedure, in connection with the mediation process, that before the end of the contract, whether it contains such a provision or not, either party who wishes to open the contract may give 60 days' notice in order to afford time for free collective bargaining, and time for the intervention of the Mediation Service. If such notice is given, the bill provides for no waiting except during the life of the contract itself. If, however, either party neglects to give such notice and waits, let us say, until 30 days before the end of the contract to give the notice, then there is a waiting period pro- vided during which the strike is an unlawful labor practice for 60 days from that time, or to the end of the contract and 30 days beyond that time. In that case there is a so-called waiting period during which a strike is illegal, but it is only brought about by the failure of the union itself to give the notice which the bill requires shall be given. So it seems to me to be no real limitation of the rights of labor unions. (Cong. Rec., April 23, 1947, p. 3955.) [Emphasis supplied.] Likewise, Senator Ives, in proposing an amendment to Section 8 (d) (3), not material to this case, described Section 8 (d) as one, "which provides that employers or employees shall serve notice 60 days before the expiration of a contract if there is going to be any change. . .." [Emphasis supplied.] (Cong. Rec., May 9, 1947, p. 5081.) The Chairman and Members Rodgers and Beeson argue that it would be futile to require a cooling-off period only at the termination of the contract. But that is just what Congress did, although I can- not agree that Congress by so doing indulged in a futility. Their opinion states that "it is as desirable to discourage interruptions to the free flow of commerce arising from labor disputes during the life of a bargaining agreement as at or near its termination." This conclu- sion, which appears to be central to their interpretation of Section 8 (d), seems to me to be based essentially upon what they individually LION OIL COMPANY 697 believe would be good policy rather than upon the language of the statute or the legislative history. It is my opinion, however, that it is neither incumbent upon the Board nor proper for the Board to question the wisdom of Congress as reflected in the words of Section 8 (d) and its legislative history. In the words of the Supreme Court of the United States in Colgate-Palmolive Peet Co. v. N. L. R. B., 338 U. S. 355 at 363, "It is not necessary for us to justify the policy of Congress. It is enough that we find it in the statute." I am of the opinion that my interpretation of Section 8 (d) is a literal appli- cation of the language enacted by Congress toward a logical and rea- sonable result. By giving literal effect to the words of Congress, I have avoided statutory surgery, on the one hand, or legislative policy engrafting, on the other. Although the language of the statute speaks for itself, I have also found, as it appears above, that supporters of the bill, including the chairman of the Senate committee, believed that Section 8 (d) was applicable only at the time around the expiration of the contract. In going to the legislative history, I have looked to the committee reports and the statements in debate of supporters of the bill, unlike the Chairman and Members Rodgers and Beeson, who rely upon the statements of Senators Murray and Morse who voted against the bill and upon the Senate minority report. As the Supreme Court stated in S&hwegmanrt Bros. v. Calvert Distillers Corp., 341 U. S. 384 at 394, "The fears and doubts of the opposition are no authoritative guide to the construction of legislation. It is the sponsors that we look to when the meaning of statutory words is in doubt." I cannot, among other things, reconcile the provision of Section 8 (d) that, "the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms and conditions contained in a contract for a fixed period, if such modi- fication is to become effective before such terms and conditions can be reopened under the provisions of the contract" with the conclusion of Member Peterson that Congress established a mandatory 60-day "cooling-off" period which "attaches whenever the parties enter into negotiations to modify or terminate a contract." Is it reasonable to conclude that Congress could have required a "cooling-off period" for bargaining at a time when it expressly stated neither party was under an obligation to bargain on changes in the contract? I wish to make it clear beyond any doubt that in my opinion Con- gress has not removed no-strike clauses in contracts from the sphere of collective bargaining and legislated them into every collective- bargaining agreement by the terms of Section 8 (d). Congress did, in effect, write into contracts a 60-day notice period similar to the 60-day notice to terminate or modify contracts with automatic re- newal clauses, which the Senate report stated are found in "most 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreements." In referring to such contractual provisions , the Senate report, quoted earlier, stated that "irrespective of the presence or ab- sence of the 60-day clause in the collective agreement " parties to con- tracts must give such 60-day notice to terminate or modify under Section 8 ( d). I am unable to perceive in the language of Section 8 (d) or in the legislative history any indication that Congress in- tended to remove agreements not to strike from the practices and procedures of collective bargaining and to write a no-strike clause into every collective-bargaining contract . I would, moreover, be very hesitant to make such an inference of congressional intent in the face of the admonition contained in Section 13 of the Act , which states : "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifica- tions on that right." [Emphasis supplied.] That Congress did not intend to enact compulsory no-strike clauses into contracts is also evident from another section of the Senate re- port. In Senate Report No. 105 on S. 1126, on pages 16 and 17, the Senate committee discussed title III of the amendment which relates to suits by and against labor organizations for breach of collective- bargaining agreements . The committee viewed the provisions of Section 301 as insuring the stability to be desired in collective-bar- gaining relations. The committee, however, made it apparent that it did not intend to write no -strike clauses into collective-bargaining agreements by the enactment of Section 8 (d), for on page 17 imme- diately following the paragraph quoted in footnote 3 of the three- Member opinion the report stated : It has been argued that the result of making collective agree- ments enforceable against unions would be that they would no longer consent to the inclusion of a no-strike clause in a contract. This argument is not supported by the record in the few States which enacted their own laws in an effort to secure some measure of union responsibility for breaches of contract. Four States- Minnesota, Colorado, Wisconsin, and California-have thus far enacted such laws and, so far as can be learned, no-strike clauses have been continued about as before. In any event, it is certainly a point to be bargained over and any union with the status of "representative" under the NLRA which has bargained in good faith with an employer should have no reluctance in including a no-strike clause if it intends to live up to the terms of the contract. The improvement that would result in the stability of industrial relations is, of course, obvious. [Emphasis supplied.] If Congress had intended to prohibit strikes at any time during the term of a contract , would it have been concerned with the argument LION OIL COMPANY 699 that title III, section 301 (that labor unions may sue and be sued in the Federal courts), would discourage unions from agreeing to the inclusion of no-strike clauses in contracts? If it had been intended to remove no-strike provisions from the realm of collective bargain- ing, would the report have then stated that the inclusion of no-strike clauses in contracts "is certainly a point to be bargained over?" Would it have made the declaration of opinion that a union which intends to live up to its contract ought not to be reluctant to agree to a no-strike clause? I think not. The Chairman and Members Rodgers and Beeson refer to the inter- pretation given to Section 8 (d) by the Court of Appeals for the Eighth Circuit in Local No. 3, United Packinghouse Workers of America, CIO v. N. L. R. B. In my opinion the court rejected the construction placed upon Section 8 (d) by the Chairman and Members Rodgers and Beeson; the court also refused to accept the interpreta- tion of Member Peterson. Both viewpoints were presented to the court. Under these circumstances and with due respect to the Court of Appeals for the Eighth Circuit, I am constrained to adhere to the views expressed in my opinion until the Supreme Court of the United States has had an opportunity to pass on the question. The Chairman and Members Rodgers and Beeson state that their interpretation does not have the effect of writing a no-strike clause into every contract-only into some agreements. It is apparent that this statement significantly limits the broad, general, and sweeping language and rationale which appear before that statement in their opinion. As I have explained earlier, however, the language of Sec- tion 8 (d) contemplates one 60-day period within which employees who engage in a strike shall lose their status as employees. The three-member opinion further states that their interpretation of Section 8 (d) "preserves the right to strike in all circumstances where the parties have provided in their agreement for negotiating substantial changes in its provisions. . . ." This in its context is tantamount to saying that Section 8 (d) wrote a no-strike clause in every collective-bargaining contract for the period of its duration but that the parties by agreement to a reopening clause can nullify or abrogate the statutory provision as the three Members construe it. This in itself as a principle is very questionable, but more than that, I find it extremely difficult to reconcile this position with that taken by the same Board Members in General Electric Company, 108 NLRB 1290, where the majority set aside a contract as a bar to a representa- tion petition because of the nature of its reopening provisions. As I view it, the three Members are stating in the present case that they are protecting the right to strike during the term of a contract if the parties have provided for reopening to negotiate substantial changes. With equal force, however, in the General Electric case the majority 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD has declared that if the parties do exercise the right to agree on such provisions, under the circumstances of that case, stability does not exist and the union is immediately vulnerable to a rival petition. Not contributing to an understanding of what the majority is preserving is the majority opinion in American Lawn Mower Co., 108 NLRB 1589 (cited by the three Members in footnote 9) in which the modifica- tion and termination clauses of a contract were coterminous and where the majority, holding that a notice to modify actually terminated the contract, stated, "It would seem incongruous to hold that there is a valid contract binding upon the parties at the very time that the Union strikes to obtain an effective agreement with the Employer." I fail to discern the filament of logic or consistency which would make these various statements and decisions coherent. As I analyze their opinion, the Chairman and Members Rodgers and Beeson further limit the general basis of their argument by stat- ing that the opinion expressed by them "has no bearing on the right to strike for reasons and purposes other than to obtain contract modi- fication or termination." By this, I take it, they agree with the de- cision in Mastro Plastics Corp. and French-American Reeds Manu- facturing Co., Inc., 103 NLRB 511, where former Chairman Herzog and I dissented in part. As we stated: "The language used in Section 8 (d) does not distinguish as to what types of strikes or lockouts are prohibited during the 60-day period." Our reasons for disagreeing with the majority on this point are fully expressed in our opinion in that case and will not be repeated here. In summary, as to the interpretation of Section 8 (d), I am con- vinced by the language of that section that the proviso applies only when parties to a fixed-term contract seek to terminate or modify it upon its expiration or when they seek to terminate or modify a con- tract of indefinite duration or one terminable at will. I further think that this view is a reasonable one, consistent with the intent of Con- gress as revealed in the legislative history. Having reached this conclusion as to the meaning of Section 8 (d) there remains the effective application of this section to the facts in the present case. As I interpret the duration provisions of the contract between the Respondent and the Union, the contract was to be in effect until October 23, 1951, and thereafter was to continue as a contract terminable at will upon the giving of notice in accordance with speci- fied procedure. After October 23, 1951, therefore, the contract was in existence without a definite termination date, but could be brought to expiration simply and reasonably by compliance with its clear terms at the will of either party. Under my view of the statute, Section 8 (d) was applicable whenever one of the parties desired to terminate this latter contract. The Union was therefore obligated at such time to comply with the procedures set forth in that section. Such pro- LION OIL COMPANY 701 cedures required the Union here, where the contract contained no ex- piration date, to serve written notice upon the Respondent of its pro- posed termination or modification of that contract 60 days prior to the time it proposed to make such termination or modification and to re- frain from striking during those 60 days. This the Union failed to do when it went on strike in April 1952 to compel immediate modification or termination of the existing contract by agreement on the Union's proposals. The earlier notice it gave on August 24, 1951, did not meet the 8 (d) requirements . That notice was of a desire to amend the initial contract for the purpose of complying with the provisions of the contract on amendments ; it was given before the contract termin- able at will came into being and hence was given before the period when the proviso to Section 8 (d) applied . As the Union failed to give notice to the Respondent and the Conciliation Service and any State mediation agency as required by Section 8 (d), and the em- ployees, nevertheless , struck, the strikers lost their status as employees of the Respondent and were not entitled to reinstatement at any time after they struck on April 30,1952. The Chairman and Members Rodgers and Beeson have decided that the "expiration date" or "modification date" of the contract was Oc- tober 23, 1951, and conclude that the notices given on August 24, 1951, met the requirements of Section 8 (d). According to them, "If Section 8 (d) is considered in the framework of industrial reality and in the perspective of the Congressional purpose to protect the stability of col- lective bargaining agreements against strikes and lockouts during the life of a contract , it becomes clear that Congress used the term 'expira- tion date' to signify the date in the course of a labor contract when the contract by its own terms is subject to either modification or termina- tion. . . ." That Congress was aware of, and took into consideration, the fact that many contracts contain a 60-day automatic renewal provi- sion effective 60 days before the termination date of a contract is appar- ent from the reference made to those provisions on page 25 of the Senate report which is quoted and discussed earlier in this opinion. I do not know, however, what "framework of industrial reality" dictates that the Chairman and Members Rodgers and Beeson then find that "ex- piration date" means something esoteric, something quite unlike the meaning ordinarily applied in the law of contracts. I suggest that the problem of expiration date, which to me means "termination date," created by the Chairman and Members Rodgers and Beeson would quickly dissolve if they were willing to read, and to give effect to, the simple and cogent language of the contract itself. Under those provisions the notice given on August 24, 1951, did not terminate the contract, and, when October 23, 1951, arrived, the contract did not expire, but under its terms was converted into a contract terminable at will upon the giving of the 60-day notice to terminate required by 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its terms. It is my opinion that, except when it would be contrary to law, the terms of a contract freely arrived at after collective bargain- ing should be given the clear meaning intended by the contracting parties. In view of the Union's failure to comply with Section 8 (d)' of the Act and Respondent's genuine attempts to reach a collective-bargain- ing agreement from August 29, 1951, to August 3, 1952, when a new contract was executed, I would not find violations of Section 8 (a) (5) in the isolated incidents alleged as such violations. As I would find neither a violation of Section 8 (a) (3) nor Section 8 (a) (5), I would dismiss the complaint in this case. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership in Oil Workers Inter- national Union, CIO, or in any other labor organization of our employees, by discriminating against them in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection, and to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL MAKE whole the employees who went on strike on April 30, 1952, for any loss of pay suffered as a result of the discrimina- tion against them between June 21, 1952, and August 3, 1952. WE WILL NOT engage in any acts, in any manner interfering with the efforts of Oil Workers International Union, CIO, to negotiate for, or represent, the employees in the bargaining unit consisting of : All production, chemical, and operating employees and all janitors, porters, maids, and laborers, at our chemical plant at El Dorado, Arkansas, excluding all other maintenance LION OIL COMPANY 703 employees, guards, firemen , office and clerical employees, non- working foremen, and supervisors as defined in the Act. LION OIL COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered , defaced, or covered by any other material. Proposed Findings of Fact , Proposed Conclusions of Law, and Proposed Order STATEMENT OF THE CASE Upon charges duly filed by Oil Workers International Union, CIO, herein called the Union, the General Counsel, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana) of the National Labor Relations Board, herein called the Board, issued his complaint dated August 11, 1952, against Lion Oil Company, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Sec- tion 8 (a) (1), (3), (4), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the parties. With respect to the unfair labor practices, the complaint alleged in substance that: (1) The Respondent on or about June 21 and until about August 4, 1952, refused to reinstate striking employees entitled to reinstatement; (2) from July 16 until July 30, 1952, the Respondent imposed as an additional condition to the rein- statement of the striking employees the withdrawal of the charges filed by the Union in this proceeding; (3) and after June 21, 1952, the Respondent refused to bargain collectively with the Union as the duly authorized representative of its employees. The Respondent duly filed its answer denying the commission of any unfair labor practices. Pursuant to notice, a hearing was held on August 26, 27, 28, and 29, 1952, at El Dorado, Arkansas, before the late Trial Examiner Henry J. Kent. The General Counsel and the Respondent were represented by counsel and the Union by repre- sentatives. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally, and to file briefs. Briefs from the Respondent and the General Counsel have been received. Because of the death of Trial Examiner Henry J. Kent, the Chief Trial Examiner on January 16, 1953, designated another Trial Examiner to perform the duties and exercise the powers of Trial Examiner in the place of Trial Examiner Kent. On January 30, 1953, the Board, however, acting pursuant to Section 102.36 of the National Labor Relations Board Rules and Regulations, Series 6, as amended, issued an order that the case be transferred and continued before the Board, that the order designating another Trial Examiner be revoked, that no Trial Examiner's Intermediate Report be issued, and that proposed findings of fact, proposed conclu- sions of law, and a proposed order be issued. Pursuant to said Rules and Regula- tions, any party may, within 20 days from the date of these proposed findings of fact, proposed conclusions of law, and proposed order, file exceptions, together with a supporting 'brief Should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board simultaneously with the statement of any exceptions filed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Murdock, and Peterson]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. Under date of September 18, 1952, the Respondent and General Counsel submitted a stipulation on corrections to that part of the official report of proceedings dealing with material sections of the contract between the Union and the Respondent which was executed on August 3, 1952 This stipulation has been accepted, and the cor- rections have been made part of the official record in the case. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Lion Oil Company, a Delaware corporation, has its principal office and place of business in El Dorado, Arkansas, near which it operates its chemical plant. The Respondent is engaged in the refining and distribution of petroleum and petroleum products and in the manufacture and sale of chemical products. During the calendar year of 1951 the Respondent received raw materials from outside the State of Arkansas valued in excess of $1,000,000. During a similar period the Respondent sold, shipped, and delivered finished products to States other than the State of Arkansas valued in excess of $1,000,000. We find that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Oil Workers International Union, CIO, is a labor organization admitting to mem- bership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background and summary of events On March 23, 1944, the Union was certified as bargaining representative of Respondent's production employees. In June 1947 employees in the labor depart- ment were included in the bargaining unit represented by the Union. The issues in this case give particular significance to the past relations between the Respondent and the Union. On March 2, 1949, the Union during contract nego- tiations stated that, if agreement was not reached, the men were going to strike. The parties discussed an orderly shutdown, but no date of the prospective strike was mentioned. However, as the meeting continued with negotiations on the contract, the Respondent instituted a gradual shutdown. The plant was then shut down at the Respondent's request in an orderly manner by the union members who, however, did not consider themselves on strike and who reported for work. The shutdown lasted for 10 days, during which time new facilities were tied in to the rest of the plant. On April 21, 1950, the Union did strike over contractual terms. That strike lasted for 8 days. The Union notified the Respondent in advance and offered to have its members shut the plant down, but the Respondent declined the offer and kept the plant in partial operation. The International Association of Machinists, which represents the maintenance employees, went out on a strike which lasted for 35 days in May 1951. The picket line was set up after the day shift had gone to work; but, although the Union recognized the I. A. M. picket line, the day-shift employees remained inside and, working a double shift, shut down that portion of the plant which the Respondent did not operate during the strike. Since August 12, 1946, the date of the first contract between the Respondent and the Union, and prior to April 30, 1952, the date of the strike involved in this pro- ceeding, the parties had executed five additional contracts. On August 24, 1951, the Union notified the Respondent and the Federal Mediation and Conciliation Service of its desire to amend the contract and of the existence of a labor dispute, and sent a copy of its letter to the State Labor Commissioner for the State of Arkansas. Negotiations on modifications of the contract began on August 29, 1951. On February 14, 1952, the employees voted to strike and notified the Respondent. The strike, after several postponements, occurred on April 30, 1952. The Respond- ent petitioned for an injunction in the Union County Chancery Court on May 1, 1952; on June 4, 1952, a temporary restraining order was issued, and picketing stopped. On July 2, 1952, the chancery court dismissed the petition of the Respondent and the cross-petition of the Union, which alleged that the Respondent had locked out the employees, and on July 3, 1952, the picketing was resumed. On June 21, 1952, the employees offered to return to work and the Respondent refused to reinstate them. Negotiations on a new contract which had been conducted since August 29, 1951, were culminated by the execution of a new contract and a strike settlement on August 3, 1952. The striking employees began to return to work on August 4, 1952, and by August 15, 1952, all employees involved except four had returned. LION OIL COMPANY 705 B. Discriminatory refusal to reinstate 1. The facts The last contract prior to the one executed on August 3, 1952, at the time the strike was settled, contained the following provisions with respect to the duration of the agreement. Article I This agreement shall remain in full force and effect for the period beginning October 23, 1950, and ending October 23, 1951, and thereafter until canceled m the manner hereinafter in this Article provided. This agreement may be canceled and terminated by the Company or the Union as of a date subsequent to October 23, 1951, by compliance with the following procedure: (a) If either party to this agreement desires to amend the terms of this agreement, it shall notify the other party in writing of its desire to that effect, by registered mail. No such notice shall be given prior to August 24, 1951. Within the period of 60 days, immediately following the date of the receipt of said notice by the party to which notice is so delivered, the Company and the Union shall attempt to agree as to the desired amendments to this agreement. (b) If an agreement with respect to amendment of this agreement has not been reached within the 60-day, period mentioned in the subsection immedi- ately preceding, either party may terminate this agreement thereafter upon not less than sixty days' written notice to the other. Any such notice of termination shall state the date upon which the termination of this agreement shall be effective. On August 24, 1951, in accordance with Section 8 (d) of the Labor Management Relations Act, the Union notified the Respondent, Federal Mediation & Conciliation Service, and the State Labor Commissioner for the State of Arkansas that it desired to modify the contract and that a labor dispute existed. The parties met and negotia- tions began on August 29, 1951. At no time did either the Respondent or the Union notify the other that it was terminating the contract. Throughout the negotiations, which continued after the strike, the Respondent's position was that the strike had breached and thus terminated the contract. In its answer, however, the Respondent states that the contract was still in effect for the entire period beginning June 21 and ending August 3, 1952. At the request of the International organization the employees voted on Febru- ary 14, 1952, to strike. The strike was first set for March 3, 1952. On February 29, 1952, the Union at a meeting informed the Respondent of the impending strike and discussed with the Respondent whether the latter wanted the Union's members to shut down the plant in an orderly manner or whether the Respondent would arrange to do it otherwise. On March 6, 1952, the parties met again, and the Union informed the Respondent that the strike had been postponed until March 10, 1952, and that the Union still wanted to know if the Respondent wished the union members to shut down the plant. The Respondent stated, that, if the men were going on strike, the supervisory personnel would operate the plant. In view of pending Wage Stabilization Board proceedings, the strike was further postponed to 12:01 a. in., April 30, 1952. During this time there were several meetings between the Respondent and the Union, and at a meeting on April 29, 1952, the Union stated that it was still willing to shut down the plant in an orderly manner. At a union membership meeting on April 29, 1952, the Union acceded to the Respondent's request for another postponement. On April 30, 1952, the union membership rejected the Respondent's last contract offer and voted to strike at 11 p. m. that day; the Respondent was so notified, and the strike began at 11 o'clock, April 30, 1952. Approximately 613 men went on strike, and the Respondent shut down part of its plant and continued to operate part of it with its supervisory, clerical, and technical personnel. On June 4 and 5, 1952, E. P. Shelton, officer of the local and chairman of the local bargaining committee, appeared at the plant gate with three groups of strikers and stated that they had reported to go to work . When Shelton in response to a question from Sprague, plant superintendent, stated that the men would report for work when there was no picket line , Sprague stated that he could not permit them to return under such conditions. The International Association of Machinists , which had been on strike since the expiration of its contract on May 15 , 1952, and which maintained a picket line until June 20, 1952, when it signed a contract with the Respondent, 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporarily withdrew its pickets on each of these occasions but immediately resumed picketing when the groups departed . On May 31, 1952, the picket lines of the Union and the I. A. M. had similarly withdrawn to permit a group of approximately 125 men to approach the plant gate without crossing a picket line. After Sprague, plant superintendent, had interviewed approximately 28 of the men and told them that under the operation of the plant at that time he could not put them back to work without advance notice, the group left. During the strike, negotiations for a new contract (set forth more fully in the section of these findings dealing with the refusal to bargain) continued. At the meeting on June 20, 1952, the Union was assured by the Respondent that none of the strikers had been replaced. On June 21, 1952, the union committee headed by Robert F. Goss, International representative, met with the Respondent's repre- sentatives headed by H. D. Dickens, attorney for the Respondent. Prior to the meeting, according to Goss' testimony, the Union had decided to offer to return to work if there was no way to agree on a contract without acceding to the Respondent's demand for a no-strike clause. Upon being informed by Dickens that the no-strike clause was a "must" item, Goss asked if the "powers-that-be," meaning the board of directors of the Respondent, were available. Dickens replied that some of them were; Goss then asked for a recess. During this recess the union committee decided to make its offer to return to work to Dickens, although some of the committee had doubts as to whether Dickens possessed the authority to make a decision. Goss testified that he understood that previously, when the men had offered to return to work at the plant gate, the "old contract" had been mentioned. Consequently, he suggested to the committee, and it decided, that he would make the offer and that the other members of the committee would not enter the discussion until he had made it clear that the offer was completely unconditional . Goss cautioned the committee members not to mention the "old contract." When the meeting reconvened, Dickens stated that he was the "powers-that-be." Goss replied that then his problem was simplified and that he "was offering to return all the strikers unconditionally and wanted to know what schedule they should report on with no strings attached." Dickens asked if Goss meant an uncondi- tional offer, and Goss replied "with no strings attached " The meeting recessed; and, when the parties met again that afternoon, Dickens informed the union com- mittee that he was authorized to state that the Respondent would not let the employees return until a new agreement had been reached which would include a no-strike clause and the term of agreement provisions which the Respondent wanted. Dickens stated that the strikers could return to work under the old contract if it was amended to include the no-strike clause and term-of-agreement provisions he referred to. Goss asked Dickens if he did not consider the old contract in effect, and Dickens replied it was a legal question and he could not answer . Goss, during the meeting, informed Dickens that the Union's offer to return was unconditional and continuing. Dickens advised Goss that the Respondent's refusal to reinstate also was continuing unless the Union was notified to the contrary. The witnesses both for the General Counsel and the Respondent, were in sub- stantial agreement with regard to the events of the June 21, 1952, meeting as they related to the offer to return to work. There was a conflict, however, as to whether or not Goss' offer was to return to work under the terms of the "old contract." Goss, Young, Whitworth, Moore, and E. P. Shelton, all members of the union committee, testified that the "old contract" was not mentioned by Goss when he initially made the offer to return to work. Four of these witnesses also testified that Dickens was the first person to bring up the question of returning to work under the "old contract." During the cross-examination of Shelton, portions of his testi- mony in the injunction proceeding on July 2, 1952, which indicated that Shelton had testified in that proceeding that Goss had said the strikers would offer their surrender and return to work under the existing agreement, were read to him. He had also testified in the court proceeding that Walden, general counsel for the International Union, had advised the local members to return to work under the existing contract and that pursuant to that advice the Union had attempted to return to work. On redirect examination other portions of Shelton's testimony in the injunction proceeding were read to him which contained statements that if any strings were attached to Goss' offer he, Shelton, did not hear them and that he at that time was willing to return to work unconditionally. J. L. Doughtery, coordinator of labor relations for the Respondent, testified that Goss' offer "as he left it" was to have the men to return to work under the condi- tions of the old contract. On cross-examination Doughtery explained that he had referred to an offer made toward the end of the meeting . At the negotiating meet- ings which he attended, Doughtery took shorthand notes which he dictated to his LION OIL COMPANY 707 secretary. When these notes were transcribed, they were distributed among the officials of the Respondent. After refreshing his recollection from these minutes Doughtery testified that the minutes accurately stated that "After the recess Mr. Goss stated that the union offered an unconditional return of all the strikers and asked Mr. Dickens when the Company wanted the employees to return to work. . . . He said, `we are ready and available.' Mr. Dickens stated that that is an operational problem and he couldn't say when they could return. Mr. Goss added, `The union is not asking an increase in wages or anything else.' " Later on in the meeting, according to Doughtery, after his initial offer was rejected, Goss stated that the employees were individually offering to return to work under the existing contract. Dickens' testimony regarding the June 21, 1952, meeting was in general agree- ment with that of the other witnesses. He, however, testified that Goss had said that he was making an unconditional offer for the men to return to work under the existing contract. Dickens, who testified that Doughtery's transcribed shorthand notes of the minutes were distributed among the Respondent's officials, stated that he had received a copy of the notes of the meeting of June 21, 1952, and that, although he had read them about a week or 10 days after the meeting, he did not notice any discrepancies in the minutes. He, nevertheless, testified that he thought that Goss had at that point in the meeting stated that the men would return under the "existing agreement." It thus appears that the witnesses agreed generally on the reinstatement aspects of the June 21, 1952, meeting, and that all the witnesses, including Doughtery, an official of the Respondent, but with the exception of Dickens, concur in the testi- mony that Goss did not condition the initial offer to return to work upon a contiu- ation of the terms of the "old contract." It further appears that the union committee specifically intended not to condition its offer to return to work upon the continua- tion of the "old contract" and attempted, by a committee meeting during a recess, to avoid any possibility of misunderstanding on that score. The testimony of Dick- ens in this respect is further put in question by the notes of the meeting which were taken in shorthand by Doughtery, distributed to the Respondent's officials, and in which Dickens had found no discrepancies although he had read them within 7 to 10 days from the meeting In view of these factors, we are of the opinion that the testimony of the bargaining committee members most accurately reflects what was said, and accordingly we credit their testimony in this respect. During the meeting of June 21, 1952, after his initial offer to return to work had been rejected, Goss informed Dickens that the Selective Service Act guaranteed returned veterans 1 year's work after their discharge and requested that the veterans who had not had 1 year's work since returning to the Respondent's employ from the Armed Forces be permitted to return to work. After another recess, Dickens stated that the veterans should apply to Sprague, plant superintendent, and he would tell them how and when to go to work. A request by Goss for a list of the veterans was rejected, and Goss was told that the Union should notify the veterans at a meeting to apply to Sprague. Following the meeting, for several days many employees, individually and in groups, in person and by telephone, made offers to return to work. They were informed that they would have to speak to Sprague who in many cases was not available. Certain employees, however, were permitted to go to work after June 21, 1952, when they had been individually interviewed by Sprague and had given him assurance that they would stay at work. Several veterans also were taken back at that time. Goss, under date of June 23, 1952, wrote the Respondent, to the attention of Dickens, in confirmation of his offer of June 21, 1952, to have the men return to work. The letter stated. "As we told you at that time this offer to return to work was unconditional and is a continuing offer." On the same day over the signature of Martin, the Respondent's president, the Respondent sent a letter to the Union and mailed copies of it to the strikers at their homes. This letter set forth the Respondent's last offer and the Respondent's reason for insisting on a term-of-agreement provision and a no-strike clause. The letter also contained the statement: "Your union has suggested that the men represented by it be permitted to return to work, in which event the provisions of the new agreement between the Company and the Union could be worked out at a later date." The Respondent then stated in the letter that it could not accede to that suggestion as the Union would not agree that the strikers would continue "to work thereafter for any period of time." The letter further stated that: "Therefore, we cannot settle this dispute until such time as the men and women you represent are willing to agree to go to work and continue to work for a period of at least one year with no strike or other work stoppage during that period." 334811-55-vol. 109-46 708 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The nature of the Respondent's operations has particular significance in this case, in view of the Respondent's defense to the charge of having discriminatorily refused reinstatement. The basic product manufactured by the Respondent is anhydrous ammonia, of which the greater part is converted into ammonium nitrate solution, ammonium sulphate, and prilled or pelleted ammonium nitrate. The principal units of the plant are anhydrous ammonia, nitric acid, ammonium nitrate solution, am- monium nitrate pelleting, sulphuric acid, and ammonium sulphate. Some of the plant equipment is operated at high temperature and pressures. In the manufacturing process in some of the units, particularly in the anhydrous ammonia section, expensive alloy tubes and catalysts are employed to achieve the proper chemical reactions. Although the kind of tube used in the production of anhydrous ammonia has been improved, and, when the tubes have to be replaced, seamless tubes will be installed, the tubes now in use are welded. The plant is normally operated on a continuous basis, 24 hours a day, every day in the year, and the tubes are kept at a uniformly high temperature. If the tubes are permitted to cool, there is the likelihood that they will break or crack at the welds. When this occurs the catalysts within are destroyed. The same possibility of damage exists in bringing a cooled-off unit to operating tem- perature. As illustrative of the damage that may occur, Respondent's officials testified concerning an incident, occurring about 1 year before the hearing, where damage costing from $175,000 to $200,000 was caused by an operator who made the mistake of cutting the steam out of the reform tubes. The entire plant, including the anhydrous ammonia section, which, when this strike began was shut down to 75 percent of its production, was shut down completely in 1951. At that time 2 tubes were damaged with a cost of approximately $9,000. During the strike involved in this proceeding 2 tubes in the reform unit were cracked causing between $3,700 and $4,000 damage and $2,400 damage occurred in the nitric acid plant. On April 30, 1952, when approximately 613 employees went on strike, all of the plant, except 75 percent of the anhydrous ammonia section, was shut down. Super- visory, clerical, and technical employees numbering 154 remained on the job. Between April 30 and June 21 they were augmented by 19 other employees making a total of 173 employees operating the plant on June 21, 1952, when the strikers offered to return to work. At that time all sections of the plant, except the sulphuric acid, ammonium sulphate, and pelleting plant, were in operation. According to the testi- mony of Sprague, plant manager, the 173 employees then at work were producing at a rate which would require 248 employees under normal operating conditions. This was accomplished by having the employees live in the plant and, from April 30 to May 7, 1952, working on a schedule of 4 hours on, 8 hours off, 4 hours on, 4 hours off, 4 hours on. After May 7, the men were permitted to go home once every 3 days for 16 hours. The sulphuric acid section started up on June 25, 1952, and the ammo- nium sulphate, on June 26, 1952. The pelleting plant did not operate until August 4, 1952, the day after the strike was settled. On June 20, 1952, the Respondent assured the strikers that none of them had been replaced, and after the strike it continued to treat them as employees. Smith, director of labor relations for the Respondent, testified that none of the strikers was discharged. The strikers were paid sickness benefits, employees' credit privi- leges were extended to them, and, upon authorization to deduct their contribution to group insurance and hospitalization premiums from wages earned after the strike, the Respondent maintained its own and the employees' contributions to such insur- ance premiums. 2. The parties' contentions The Respondent urges that the dismissal of the strikers' cross-complaint by the Union County Chancery Court where the strikers alleged damages and sought equitable relief is res judicata as to the claims of the strikers. It also contends that the employees were not entitled to be reinstated, as they had not complied with the clause of the contract which provided that employees on unauthorized absence not due to injury or illness would not be permitted to return to work without 8 hours' notice. The General Counsel urges that, although the 8-hour provision was not applicable to a strike situation, nevertheless, the employees did give such notice of their intention to return. The Respondent urges that a strike during a contract is a violation of Section 8 (d) (4) of the Act: neither party terminated the contract, and, even though the contract did not contain a no-strike clause, the strike during the existence of the contract was an unfair labor practice. The Respondent states that it is cognizant of the Board's decisions to the contrary, but urges the Board not to apply the principles of those cases to a situation where, as here, the strike was called as a part of the nationwide strike in an industry where there is no history of industrywide LION OIL COMPANY 709 bargaining. The General Counsel relies on the Board's decision in United Packing- house Workers of America, CIO, etc. (Wilson d Co., Inc.), 89 NLRB 310. It is further contended by the Respondent that, even if the refusal of the Respond- ent to reinstate the employees on and after June 21, 1952, was a lockout conducted by the Respondent to strengthen its bargaining position , the Respondent had the legal right to take such action. In support of its contentions, the Respondent cites the decisions in Morand Brothers Beverage Co. v. N. L. R. B., 190 F. 2d 576 (C. A. 7), and Leonard et al. v. N. L. R. B., 197 F. 2d 435 (C. A. 9). Moreover, argues the Respondent, its right to refuse to permit the strikers to return until they had agreed to remain at work is approved by the Board's decision in Betts Cadillac Olds, Inc , et al., 96 NLRB 268. It is urged that the rule of the Betts Cadillac case should be applied here, as neither the union nor the men would give assur- ance that they would remain at work for any given time, the offer to return to work was made on the condition that negotiations would continue, the union con- tended that it had the right to strike under the contract, on June 4 and 5, 1952, Shelton, speaking for three groups who reported for work, stated that the men would report to work every time there was no picket line, substantial damage is caused when equipment is shut down, and the Respondent feared that the men would return and then hold a work stoppage as a threat over the Respondent. On the other hand, the General Counsel argues that the June 21, 1952, offer to return to work was one which the Respondent had a legal obligation to accept. It was an unconditional offer to return, and, moreover, the written offer 2 days later was also unconditional. However, according to the General Counsel, even if the offer were to go back to work under the contract, it would still create an obligation to reinstate, as the Board has held that an offer to return need only to seek a return to the status quo preceding the strike (Seven Up Bottling Company of Miami, Inc., 92 NLRB 1622, 196 F. 2d 424 (C. A. 5), and E. A. Laboratories, Inc., 80 NLRB 625) and a condition that contract negotations continue is not such a condition as will vitiate the offer. Further, argues the General Counsel, as the Board held in Morand Brothers Beverage Co., et al., 99 NLRB 1448, the Respond- ent may not resort to a lockout in order to support its contractual demands, and, moreover, the lockout was in reprisal for the Union's going out on strike and was motivated by a desire to interfere with concerted activity, in that the Respondent conditioned reinstatement upon an abandonment of the right to strike for 1 entire year. The General Counsel would distinguish this case from Betts Cadillac Olds, Inc., et al., 96 NLRB 268, and International Shoe Company, 93 NLRB 907. In the pres- ent case, urges the General Counsel, there is no history of quick strikes without notice and no threat of another strike, so consequently the Respondent has no substantial and reasonable cause to believe that another strike was intended. In this case there is no danger that the Respondent would suffer undue hardship caused by a strike without adequate notice. 3. Conclusions as to the refusal to reinstate The Respondent's contention that the Board is precluded from considering the claims of the strikers by reason of the dismissal of their cross-petition by the Union County Chancery Court we find to be without merit. The Board has paramount initial jurisdiction over the subject matter herein; nor was the Board a party to the injunction proceeding before the chancery court. Furthermore, the present proceed- ing is not one to adjudicate private rights, but is a proceeding to effectuate the public policy set forth in the National Labor Relations Act, as amended. (H. N. Thayer Company, 99 NLRB 1122; United Shoe Machinery Corporation, Inc., et al., 96 NLRB 1309, at 1325; and Deluxe Motor Stages, 93 NLRB 1425.) The Board likewise finds without merit the Respondent's contention that the employees were not entitled to reinstatement, because they had not given 8 hours' notice of intention to return to work in accordance with the provision of the contract which required such notice after unauthorized absence not due to injury or illness. We do not believe that such a provision is applicable to the particular circumstances of a strike situation and a request for reinstatement, such as present in this case. In any event, however, it is apparent from the record that such notice was in fact given by the Union to the Respondent. As indicated above, on August 24, 1951, the first date when it could have done so under the contract. the Union notified the Respondent of its desire to modify the contract and informed the Federal Mediation and Conciliation Service and the State Labor Commissioner for the State of Arkansas of that fact and of the existence of a labor dispute. The strike did not take place until April 30, 1952. Under the prin- ciple of United Packinghouse Workers of America, CIO, etc. (Wilson f Co., Inc.), 710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 89 NLRB 310, the requirements of Section 8 (d) of the Act have been met and the Board accordingly rejects the Respondent's contention that the Union has failed to comply with Section 8 (d). With respect to the issue of whether or not the Respondent was justified in refusing to reinstate the strikers , the General Counsel relies on the Board 's decisions in Morand Brothers and Davis Furniture, and the Respondent cites the decisions of the courts of appeals in those cases. The Respondent, further, would have the Board decide the case in its favor in light of Betts Cadillac, the General Counsel urges that Betts Cadillac and International Shoe are inapposite. In our opinion, the facts of the present case require the Board to distinguish this. case from those relied on by both the General Counsel and the Respondent. Morand Brothers involved a discharge of, and Davis Furniture involved a tempo- rary layoff of, employees by members of the association to which the struck employ- ers belonged and through which they bargained. The Betts Cadillac case also concerned a shutdown by members of an association when two of the members were struck. In that case the Board affirmed the Trial Examiner's recommendation that the complaint be dismissed. The operations of the employers involved in that proceeding were the repair and servicing of auto- mobiles. Ninety-five percent of this work was completed the same day it was received. The threat of strike was present, and no assurance was given by the union that the association members not already struck would be notified, before an exten- sion of the strike to their operations, in time to finish the work in the shop. In International Shoe (where a majority of the Board dismissed the complaint), which more closely approaches the present case than the cases referred to above, the parties had agreed on a contract including a maintenance-of-membership clause, but the local union, although it had ratified the contract, deferred signing the agreement until it had been approved by the international union. At the time the employer was signing the agreement, a work stoppage occurred for the purpose of forcing nonunion employees to join the union. This stoppage disrupted other departments of the plant. The same morning, the union notified the employer that the third-shift employees in one of the departments would not report for work that day unless two, employees working there joined. The employer thereupon told the union that it would no longer agree to the maintenance -of-membership provision in the contract. When the third-shift employees failed to report, the employer shut down the plant, which remained closed until a new contract was executed. Three days after the plant was closed, the union stated that the employees were willing to return under condi- tions existing at the time of the shutdown. The employer, however, aware of the union's coercive intent in instigating the quick work stoppages , refused to open the plant until the union had signed a contract containing a no-strike clause and an escape clause permitting resignations from the union of those who had joined after a certain date. The latter provision was intended to counteract the effect of the coercive tactics used by the union in recruiting membership. In the present case, it is our opinion that the Respondent was not justified in refusing to reinstate the strikers until the Union signed a contract with a 1-year no-strike clause and for a fixed 1-year term without an automatic renewal clause. It has been established for many years (N. L. R. B. v. Mackay Radio d Telegraph Co., 304 U. S. 333) that economic strikers who have not been replaced are en- titled to reinstatement upon their unconditional request. It is clear that here the strikers were not replaced and that they made an unconditional request to return to, work. Even if, as contended by the Respondent, the request were made subject to continuation of negotiations and the terms of the existing contract, which had not been terminated, such "condition" would not be objectionable as it asked only that the Respondent do that which it was legally bound to do and to return to the situation which existed at the time the strike began. (See Seven Up Bottling Company of Miami, Inc., 92 NLRB 1622, enfd. by the Court of Appeals for the Fifth Circuit in 196 F. 2d 424, and E A. Laboratories, Inc., 80 NLRB 625.) The two principal grounds urged by the Respondent as justification for its refusal to reinstate the strikers are the nature of its operations and its fears of recurrent strikes without due notice within a short time. These factors are argued as the bases for its insistence in not permitting the employees to return until the Union agreed to relinquish the right to strike for 1 year and to execute what the Union termed a "sudden death" contract, i e., one which would definitely expire on a certain date without any provision for automatic renewal or continu- ation beyond the 1-year term. In connection with the nature of the Respondent's operation, the record shows that, because of the temperatures and pressure under which some of the equip- ment operates, there is a likelihood of damage in both shutting down the plant LION OIL COMPANY 711 .and starting it up again . As indicative of that fact, damage to the equipment costing approximately $6,400 occurred during the strike. In our opinion, however, under the circumstances of this case , the Respondent has not proved a case of misconduct by the Union , delinquency by the employees in their obligations to the Respondent, or undue hardship to the Respondent. We are aware, of course, that almost all, if not all, strike situations cause some detriment -of various kinds to the parties involved, but, in our opinion, that alone is not sufficient to deny to the strikers their statutory right to reinstatement under the conditions of this case The damage to the Respondent's equipment and the probability of damage ap- pear to be comparatively negligible in relation to the value of the plant, the large volume of business done by the Respondent, the loss of sales to customers during a complete shutdown , and the damage to equipment possible during full normal operation of the plant when there is no strike. Thus, it was estimated by a responsible official of the Respondent that the replacement value of the plant is $55,000,000, the complaint alleged, and the Respondent admitted, that the Respondent during the calendar year of 1951 received raw material from outside Arkansas in excess of $1,000,000 and sold, shipped, and delivered finished prod- ucts to other States valued in excess of $1,000,000; and, that as testified by Respond- ent's officials, a mistake by 1 operator about 1 year before the strike resulted in damage costing from $175,000 to $200,000. The Respondent's decision to oper- ate as much of its plant as possible with its supervisory, clerical, and technical employees was motivated by its desire to minimize its loss in sales as well as to protect the equipment. It further appears from the record that one part of the equipment (alloy tubes) most likely to fail has been improved, and, when it is replaced. the danger of damage in this respect will be greatly diminished, if not removed. The record also clearly shows that the Union has been most meticu- lous in its concern over minimizing the possibility of damage each time there has been a strike at the plant. Further, in support of its contention that it had the right to refuse reinstatement until the strikers agreed "to remain at work," that is, until the Union agreed to forego the right to strike for 1 year, the Respondent relies on the facts, proved in the record, that the Union claimed the right to strike under the contract, that the Union refused to agree not to strike for a 1-year period, that several groups of strikers on June 4 and 5, 1952, stated that they would work when there was no picket line, and that the Union had, in fact, gone out on strike. The Respondent would further justify its refusal to reinstate upon fears expressed by its officials that the men would return to work and then hold a work stoppage as a threat over the Respondent. It is our conclusion, however, that the Respondent's expressed fear of another strike within a short time was not based on the realities of the situation. The Respondent, itself, admitted that it had no criticism of any notice that the Union gave of its intention to strike, that it had not received any notice or threat from the Union or any source to support its fears, and that the only reasons for its premonition were those enumerated in the preceding paragraph. The record amply demonstrates that the Union, in this and other previous strike situations at the plant, displayed the utmost concern that undue hardship should not be incurred by the Respondent, by giving the Respondent full and sufficient notice and offering to conduct the shutdown in an orderly manner at the direc- tion of the Respondent. The record also shows that in the course of contract negotiations during the strike the Union by its proposals gave positive evidence, not only that it did not intend to go out again within a short time, but that, in fact, it was willing to forego its right to strike for certain periods of time, albeit short of the 1-year period sought by the Respondent. Thus, on June 26, 1952, the Union offered to refrain from striking until the grievance involved in any dispute had gone through 4 steps of the grievance procedure, a process which was estimated to take from 1 to 4 months. On July 3, 1952, as a counterproposal to the Respond- ent's offer that the no-strike clause be inoperative after 10 consecutive unsuccess- ful discharge appeals, the Union suggested that the number of unsuccessful ap- peals be set at 5. Likewise, on July 11, 1952, the Union proposed a no-strike provision under which, if, after 60 days of negotiations, agreement was not reached, the Union would be free to strike. On June 21, 1952, and the following days, the Respondent individually interviewed striking employees and reinstated them upon their assurance that they would not strike. This was done at a time when the Respondent unlawfully rejected the Union's attempts to get the employees back to work and when the Respondent declined to deal with the Union on grievances. In our opinion this conduct constitutes discrimina- tion violative of the Act, as it required the employees, as a condition of employment, 712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to give up their adherence to the Union as their bargaining representative in this respect and to return as individuals after personal interviews and not as a group. In the circumstances of this case we find, therefore, that the Respondent violated Section 8 (a) (3) and ( 1) of the Act by discriminatorily refusing to reinstate the employees listed in the complaint and by individually interviewing the strikers and reinstating them upon their assurance that they would not strike at a time when the Respondent rejected the Union's attempts to get the strikers back to work and declined to deal with the Union on grievances. C. The refusal to bargain 1. The facts The facts with regard to the bargaining conferences are, in the main, undisputed: On August 24, 1951 , the Union , under the terms of the contract in existence at that time, notified the Respondent that it desired to modify the agreement and specified 34 provisions of the contract which it desired to amend Meetings began between the Union and the Respondent on August 29, 1951, and between that date and April 30, 1952, the date the strike began, 37 bargaining sessions were held. Between April 30 and August 3, 1952, when the strike was settled and the new contract executed, the parties held approximately 27 additional meetings . From August 29, 1951, to June 13, 1952, the Respondent's representatives were led by Smith , director of industrial rela- tions. When he became ill, Dickens, one of the Respondent's lawyers, became spokes- man for the Respondent. Meinert, a director and vice-president of the Respondent, conducted the negotiations through the period of June 25 through July 17. Meinert suffered an injury to his leg on July 6 , 1952, but held 3 or 4 meetings in his room at the hospital , after which he was unable to continue with the conferences . Negotia- tions were concluded by Davis, Respondent's counsel and a director of the Company On June 29 , 1952, at the Union's request Meinert addressed a union membership meeting and explained the Respondent 's reasons for its proposals at the bargaining conferences . On July 3, 1952, at the Union 's request , Barton, chairman of the Re- spondent's board of directors , and T. M Martin, president of the Respondent, met with Goss, International representative of the Union , and Marsh , local member of the bargaining committee. Martin also attended a meeting preceding the strike on April 30. During the negotiations the union committee was headed by four different International representatives and a member of the local bargaining committee who- was authorized to act as an International representative. By February 1952 when the Union took its strike vote and notified the Respondent of its intent to strike, the parties, who had been negotiating since August 29, 1951, had still not reached agreement on wages, shift differentials , paid holidays, certain classifications, sickness benefits, clothing allowance, and a pay in lieu of notice pro- vision. Immediately before the strike , a series of meetings was held on April 28, 29, and 30; there had been no agreement on the questions which were still in issue in February. At the April 28 meeting the Respondent for the first time stated that it wanted a no-strike clause in the contract . At the April 29 meeting the Respondent revised its wage offer, and the Union cut down the amount of the wage increase which it requested. At the beginning of the afternoon meeting on April 30 ( there appar- ently were meetings in the morning and night also on April 30) the Respondent requested a revision of the pay in lieu of the notice clause and the no -strike clause. Later in the meeting the Respondent increased its wage offer 2 cents an hour and stated, that, if the Union would accept the Respondent 's revision of the pay in lieu of notice clause , it would withdraw its request for a no-strike clause The Respondent's offer was reiected by a membership meeting of the Union and the strike began at 11 that night. During the strike negotiations continued On May 20, 1952, the Respondent made alternative proposals. Under 1 of them. the Resporclent offered a wage increase of 15 cents an hour and 6 and 12 cents ' shift differentials . It also agreed to a seventh paid holiday but withdrew previous proposals which had been agreed to by the Union regarding group insurance and annuities and certain classification upgradings. The alternative proposal contained 131/, cents' an hour wage increase, 6 and 12 cents' shift differentials , and the insurance and annuities previously agreed to , but no seventh holid'v Both proposals contained a no-strike clause and a revision in the provision for the duration and termination of the contract, which also provided for a July 1 termintion date. This revision read : "This agreement shall remain in full force and effect from the date of its execution until 12.01 a m July 1 1953." The record does not show that a revision of the termination provisions had been proposed before this date, and a witness who testified regarding this meeting did not recall that there had been a discussion of a termination provision previously. The Respondent informed the Union that the Respondent's contracts for the sale of fertilizer ran from July 1 to LION OIL COMPANY 713 July 1 of the next year, and it wanted its labor contracts to have the same anniversary date. The Union did not oppose changing the anniversary date to July 1, but it did oppose having the contract definitely end on a certain date without provision for renewal, and it urged that the same kind of contract opening clause be retained which had been in the contract in effect at the time of the strike . Near the conclusion of the meeting the Union asked the Respondent if it would submit a list of "just what it would take to reach an agreement." At the May 21 , 1952, meeting the parties reviewed the negotiations up to that time. At the suggestion of the Federal conciliator who was present the two com- mittees met with him separately. After meeting with the Respondent's representa- tives, the conciliator presented the union committee with a written list submitted in response to the Union 's request at the meeting of May 20 , 1952. After the committee members had read the list , the Union asked the conciliator if he could get the respondent to sign the proposal. The conciliator did not know , and after going into the room in which the Respondent 's representatives were meeting, returned, took back the written proposal of the Respondent from the Union, and went back into the room where the Respondent's representatives were. He later returned and stated that the Respondent would not sign the proposals . When the Union requested a copy of the proposals , the conciliator, after conferring with the Respondent's representatives , stated that if he got one for himself , it would not be available to the Union. When the Respondent and Union convened together as part of this meeting , the Respondent refused to give the Union a copy of the proposals, and Smith told the conciliator that the two "absolute musts" were the Union's agreement to the no-strike clause and to the term of agreement provision. Although throughout the hearing the latter clause was referred to as the "July 1 termination date," it is apparent from the record that a July 1 expiration date for the initial term of the contract was not the issue, for the Union did not object to having the contract run from July 1 to July 1. Its objection was to the Respondent's proposed deletion of a clause for renewal in the absence of notice to terminate. At the meeting of May 29, 1952, the parties reviewed the negotiations , but there was no change of position. Again the Respondent stated its position that the two "fundamental" items were the no-strike clause and the termination date. On May 30, 1952 , the Union wrote the Respondent's board of directors and protested that the Respondent's representatives had not been given authority to negotiate a contract to a conclusion, set forth the areas of dispute (term of agreement, no-strike clause, pay in lieu of notice on layout, withdrawal by Respondent of agreement to upgrade certain classifications and to liberalize employees ' benefits plans, and wage increases ), the Union's position on these areas of dispute , and requested a meeting with the board of directors. By June 13 , 1952, the points in issue were increased by the Union 's demand for the payment of the wage increase allowable under Wage Stabilization Board regu- lations without prior approval , from December 27 , 1951, to April 30, 1952, the time the strike began . There was another meeting on June 14 , 1952, at which the Respondent again explained that it wanted the contract to expire definitely on July 1, the same day that its contracts for the sale of fertilizer ended. The Union agreed to the July 1 date but proposed that reopening, modifying , notice to terminate , and automatic renewal on that date should also be provided for by provisions for reopening 120 days before July 1 and the giving of notice of termina- tion 60 days before July 1. The Respondent rejected this proposal. On June 16 , 1952 , Smith, who became ill, was replaced by Dickens as spokesman for the Respondent 's representatives . The Respondent offered in writing a termina- tion provision , an interpretation of which was requested by the Union of Dickens, who found it necessary to go into recess before he could reply . On June 17, 1952, the parties reached tentative agreement on a pay in lieu of notice clause. The Union asked the Respondent to give it the Respondent 's best offer not containing a no-strike clause which the committee could take to the union membership in an effort to settle the strike . Dickens replied that the Respondent "still had two fundamentals that they had to have ," the no-strike clause and the termination pro- vision, and had no proposals to offer which would not contain both those items. On June 18 , 1952, Dickens stated that the Respondent would not sign any kind of a contract unless it contained both these clauses. The parties met again on June 20 , 1952. The Union was still willing to accede to the Respondent's demand for a July 1 termination date, but it still wanted a 60-day period for notification of desire to modify and a 60-day period in which notice to terminate would be permitted. The Union representative, Goss, asked Dickens, if the Union accepted the Respondent's proposal on the term of agreement, would the Respondent withdraw its demands for a no-strike clause. Dickens replied 714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the negative, to the effect that a contract acceptable to the Respondent would have to contain both provisions. The events of the June 21, 1952, meeting relating to the offer to return to work and the refusal to reinstate are treated under that section of these proposed findings. The meeting also dealt with the contract proposals of the parties. As recited else- where, the Union questioned Dickens' authority, but upon Dickens' assurance that he was the "powers that be," to negotiate a contract, it tendered him its offer to return to work. Dickens' reaction indicates clearly that he was not empowered, at least, to reject or accept the Union's offer to end the strike. During the early part of the meeting there was a discussion of the no-strike clause. Goss asked Dickens if the Union could trade agreement on the termination clause for the Respondent's withdrawal of the no-strike clause. Goss and E. P. Shelton testified that Dickens replied that he did not think so, and in reply to this specific question, stated that the no-strike clause was a "must" item. Dickens testified that Goss had asked if the Respondent had an offer to make that did not contain a no-strike clause, that he had replied in the negative, that he asked Goss to make an offer containing such a clause, and that Goss said that he had no such offer to make. Dickens, however, confirmed the accuracy of the minutes of the meeting prepared by Doughtery (the preparation and use of these minutes at the hearing are discussed fully in the section of these proposed findings regarding the refusal to reinstate), which reported that in reply to Goss' direct question, Dickens stated that it was the Respondent' s posi- tion that a no-strike clause was a "must" item. At this meeting Dickens stated that "his instructions were that the company cannot put the employees back to work until we have an agreement and that agreement will include a no-strike clause and termination date of July 1." Goss asked Dickens for several items of information including a list of all employees working, of the jobs that were filled, a statement of whether there were any supervisors working, a statement of how the Respondent desired the employees to comply with the grievance procedure under the contract, and a list of all veterans who had not had 1 year's work since their return from the Armed Forces. Goss also requested a meeting on grievances for the next day; in view of the Respondent's refusal to reinstate, the Union was requesting 2 weeks' pay in lieu of notice of layoff under the "old" contract. After a recess, requested by Dickens, Goss' requests were denied. The Respondent also declined to entertain any grievance on the ground that the contract was not in effect. On June 23, 1952, the Union sent a written request for a grievance meeting to Martin, the Respondent's president. Meinert, Respondent's vice president, entered the negotiations on June 25, 1952, when the Respondent withdrew its alternative proposals and agreed to the 15-cent per hour increase with 6-cent and 12-cent shift differentials (which the Wage Stabili- zation Board was approving in other cases), to grant a seventh holiday, and to return to its previous agreement on classifications, insurance, and annuities. The Respondent rejected the Union's request for retroactive pay and continued to adhere to its demand for a no-strike clause and the termination clause without provision for automatic renewal. These three items were the principal differences which remained in issue. On June 26, 1952, the Respondent stated that the "old" contract was not in effect, that it would not consider the grievances of the employees under that con- tract if presented by the Union, but would entertain grievances from individual employees. The Union offered to accept a no-strike clause provided that the fifth step of the grievance procedure be eliminated and further provided that, after a grievance had gone through the fourth step of the grievance procedure without settle- ment, the no-strike clause would be inoperative. The first four steps of the process would take the grievance through the foreman, plant manager, plant superintendent, and the director of industrial relations; the fifth step would be arbitration. It was estimated that it would take from 1 to 4 months for a grievance to go through the four steps. The Respondent rejected this proposal. On July 3, 1952, the Respond- ent proposed that the no-strike clause be inoperative if the Union lost 10 successive discharge cases processed through to a special appeal to the Respondent's president or vice president. The Union suggested 5 successive discharges, but that was not acceptable to the Respondent. Nor was the Union's proposal that the no-strike clause be inoperative if an arbitrator in a grievance proceeding held that the Respondent had violated the contract. In response to the Union's request to meet with the Respondent's board of direc- tors, the chairman of the board, Barton, and the Respondent's president, Martin, met with Goss and Marsh on July 3, 1952 During this meeting Barton stated that, when the strike was over, the top personnel would do all they could to avoid any future trouble and asked the Union's reason for opposing a no-strike clause. He was informed that the employees worked with the lower levels of management and were fearful that, if a no-strike clause was put into the contract, the lower levels of man- LION OIL COMPANY 715 agement would take advantage of the strength that would give the Respondent. Barton then told the union representatives that "We are going to insist on one thing and that is you sign a contract with a no-strike clause in it. . . . We may have to go to extreme measures to sign that kind of agreement with you. . We are going to insist you sign a no-strike clause contract." The nature of the "extreme measures" was not explained. On July 11, 1952, the Union again met with Meinert and proposed a no-strike provision under which, if, after 60 days of negotiations, agreement was not reached, the Union would be free to strike. The Respondent's representatives stated that it wanted a no-strike contract for a full year's duration and that the Union's proposal was for a contract for only 60 days. The Union further requested the Respondent's reaction to an agreement whereby the Union would accept the Re- spondent's term of agreement proposal, i. e., one without an automatic renewal or continuation provision, for the Respondent's acceptance of a clause providing that there be no strike unless sanctioned by a vote, under secret ballot, of 75 percent of the employees in the bargaining unit. This proposal was rejected at a meeting held the next day on July 12, 1952. At the July 11 meeting, the withdrawal of unfair labor practice charges which had been filed with the National Labor Relations Board was discussed, and Re- spondent informed the Union that it expected the Union to withdraw the charges. With respect to the same subject, the dropping of the charges, Shelton, Young, and Whitworth, members of the bargaining committee, testified that on July 16, 1952, Meinert stated that Respondent "would not even sign this type of a no- strike clause unless we would drop all charges pending with the NLRB and file no charges in the future out of anything that happened during the strike," that, as the Union would not withdraw the charges, "we can't make an agreement then," and that "there wouldn't he a contract unless we did drop the NLRB charges." Meinert stated that the minutes of the meeting prepared by Doughtery and dis- cussed earlier in these findings were incorrect when they stated that, "Mr. Goss said the Union would not drop them and Mr. Meinert replied that we won't settle." He did, however, recall that in effect he had stated, as quoted in the minutes, that he did not think the Respondent would sign a contract unless the Union dropped the unfair labor practice charges. In view of the testimony of the three members of the bargaining committee, the minutes of the meeting prepared by an official of the Respondent, and Meinert's testimony itself, despite his denial that he said the Respondent would not settle without the withdrawal of the charges, we believe that the testimony of Shelton, Young, and Whitworth gives a more accurate account of this incident, and we credit them in this respect. Accordingly, we find that at the meeting of July 16, 1952, Meinert conditioned the signing of a contract upon the withdrawal by the Union of unfair labor prac- tice charges pending before the Board Also at the July 16, 1952, meeting, there was discussion about how the men who were returning to work did it, and how the other strikers were going to get back to work. Meinert stated that the men were returning on their own initiative, but that the Respondent would not let the entire group of strikers back until the contract was signed. On July 12, 1952, the Respondent had submitted a list of 11 points for the settlement of the strike; 2 of the points were the withdrawal of the pending charges and the withdrawal and waiver of any grievances which occurred during the strike. The first of these demands were withdrawn by Respondent on July 30 and the second on July 31, 1952. On August 3, 1952, the contract was executed by the parties. With respect to the term of the agreement, the significant changes are that the initial term of the contract runs from August 3, 1952, to June 30, 1953, and instead of a min- imum 60 days' notice of termination, the new agreement provides that the con- tract will terminate 48 hours after the notice to terminate. The 60 days' notice to amend remains essentially the same, and the contract continues in effect until cancelled as described above. The new contract contains a no-strike, no-lockout clause on matters arising out of disputes which can be referred to arbitration under the agreement, or relating to a wage, wages, and the discharge of a person without seniority. Under the terms of the contract, the no-strike, no-lockout clause is to be rendered inoperative upon the failure of the Respondent to comply with the decision of the arbitration board. 2. The parties' contentions The General Counsel contends that the Respondent violated Section 8 (a) (5) by its adamant position on the no-strike and term of agreement clauses, in- 716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD terjected into the bargaining conferences after substantial agreement had been reached on many items, by failure to give Dickens sufficient authority to permit him to make commitments , by dealing with individual strikers as to reinstatement while refusing to discuss the matter with the Union, by refusing to furnish the information requested by the Union at the June 21 meeting , and by conditioning the reinstatement of the strikers and the signing of an agreement upon the with- drawal of the unfair labor practices charges in this case. The General Counsel also contends that the Respondent 's conduct in refusing to recognize that the con- tract was in effect and to permit the Union to administer it during the strike is an illegal refusal to bargain . Although during the negotiations the Respondent contended that the contract in effect at the time of the strike, April 30, 1952, was no longer in effect, in its answer to the complaint in this case , the Respondent has alleged that the contract was in full force and effect for the entire period of June 21 through August 3, 1952. The Respondent urges that its insistence on a no -strike clause and termination date was not violative of 8 (a) (5)-that bargaining for such clauses is not per se violative-that at all times it was properly represented at the meetings , that it had the right to refuse to permit workers to return to work until they agreed to remain at work, and that the Respondent's attempt to get the Union to with- draw the NLRB charges as part of the strike settlement was not a failure to bargain as it was not made as a condition precedent to concluding an agreement and as it did not prevent a settlement. 3. Conclusions as to the refusal to bargain On March 23, 1944, the Union was certified by the Board as bargaining represent- ative of the Respondent's production employees with certain exceptions. On August 12, 1946, the Union and the Respondent executed their first contract for employees of the operating department and the chemical laboratory. In June 1947 the labor department employees were included in the contractual bargaining unit. The con- tract in the record, which was in effect at the time of the strike, describes the unit for which the Union was recognized by the Respondent as bargaining representative. In substance the parties do not now challenge this unit. It is found that the following employees of the Respondent at its chemical plant at El Dorado, Arkansas, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (c) of the Act: All production, chemical, and operating employees and all janitors, porters, maids, and laborers, excluding all other maintenance employees, guards, firemen, office and clerical employees, non- working foremen, and all supervisors, as defined in the Act. The Respondent's answer to the complaint admitted that the Respondent has rec- ognized the Union as the exclusive bargaining agent, and it does not now challenge the Union's majority status. The complaint alleged, and we find, that at all times material hereto a majority of the employees, in the unit above found appropriate, designated or selected the Union as their representative for the purposes of collective bargaining. The first question to be considered in connection with the allegation that the Respondent unlawfully refused to bargain is the Respondent's position with respect to its demands for a no-strike clause and a contract without an automatic renewal clause. On April 28, 1952, approximately 8 months after negotiations began, 2 months after the employees notified the Respondent of their intention to strike, and 2 days before the strike, after several postponements actually occurred, the Respondent for the first time stated that it wanted a no-strike clause in the contract. On May 20, 1952, the Respondent for the first time insisted on a contract without an automatic renewal clause. After these dates the Respondent stated that it would not sign a contract, settle the strike, or permit the strikers to return to work unless the Union agreed to these provisions. Under certain conditions the Board would, and has, found conduct similar to that described above to be one of the elements evidencing bad faith in bargaining rela- tions. (See Toiver Hosiery Mill, Inc., 81 NLRB 658.) An analysis, however, of the proposals, counterproposals, and the final agreement on the two issues primarily in dispute, made during, and reached after, a course of bargaining which included approximately 64 meetings in approximately 11 months, indicates that, despite the Respondent's position, there was a "give and take" during the negotiations, and the Respondent's insistence upon its demands was not such as to evidence bad faith. Nor do we find Dickens' status as Respondent's representative from June 16 to June 25, 1952, indicative of bad faith. We do not believe it necessary to determine whether or not Dickens had been invested with authority sufficient to make him a LION OIL COMPANY 717 genuine representative for negotiating purposes . The period during which Dickens was the principal spokesman for the Respondent-June 16 to June 25-when viewed in the total picture of the numerous bargaining conferences , is negligible in contrast. Furthermore , the record shows that at all other times the Respondent was represented by responsible officials of the Respondent and that each change of representative, except the replacement of Dickens, was occasioned by illness. Thus, Smith, Respond- ent's director of industrial relations , led the Respondent's representatives from August 29, 1951, to June 13, 1952,-when he became ill and was replaced by Dickens, one ,of the Respondent's attorneys. . Meinert, a director and vice president of the Respond- ent, who succeeded Dickens, was forced by a personal injury to withdraw after con- ducting several conferences in the hospital to which he was confined . His successor in negotiations was Davis , Respondent's counsel and a director of the Company. ,On other occasions the Respondent 's president and Respondent's chairman of the board of directors also met with union representatives. The Board does, however, find violations of Section 8 (a) (5) in (1) the Respondent's dealing with individual strikers at a time when the Union had abandoned the strike by offering the unconditional return to work of the strikers and the Respondent had refused to deal with the Union on the matter; (2) the Respondent's conditioning of the signing of an agreement upon the with- drawal of the unfair labor practice charges in this case; and (3) the Respondent's .refusal to recognize that the contract was in effect , not having been terminated, and to permit the Union to administer it during the strike. The record is clear that the Respondent refused to discuss, beyond a flat rejection of the Union's offer of the return to work of the strikers, the Union's request for reinstatement and that it also informed the Union that it would not permit the Union , in performance of its obligations as bargaining representa- tive, to present grievances for the strikers. During this time, however, the Re- spondent did individually interview strikers and, upon securing certain agreements from them, permitted them individually to return to work. The Respondent also informed the Union that, although it would not consider the grievances of the employees, if presented by the Union, it would entertain grievances from individual employees. We view this conduct as bypassing the Union in derogation of the Union's status as exclusive bargaining representative , and thus it constitutes a refusal to bargain in violation of the Act. The record is equally clear that the Respondent made the withdrawal of the 'unfair labor practice charges a condition precedent to the signing of an agreement. The initiation of unfair labor practice proceedings does not suspend the operation of the Act; nor does it relieve the Respondent of the duty to bargain. As the Court of Appeals for the Fourth Circuit declared in Hartsell Mills, the Respondent "could not thus make its compliance with the act dependent upon dismissal of charges that it had been guilty of violating it." We, therefore, in accordance with well-established policy (see American Laundry Machinery Company, 76 NLRB 981, The Toledo Desk & Fixture Co., 75 NLRB 744, and Hartsell Mills Co, 18 NLRB 268, enfd. as modified in 111 F. 2d 291 (C. A. 4) find that this conduct also violated Section 8 (a) (5) of the Act. Finally, there remains for consideration the Respondent's repeated denial that the last contract before the one executed on August 3, 1952, was still extant after April 30, 1952, the date of the strike, and its refusal to permit the Union to administer the contract. Under the terms of the contract, as neither party had given the notice of termination provided for, the contract remained "in full force and effect," the strike of April 30, 1952, did not breach or terminate the agreement. It is true that the Board will not find a violation of a contract to be an unfair labor practice. The Board's reasons for that policy are given in United Packing- house Workers of America, CIO, etc. (Wilson i Co., Inc.), 89 NLRB 310 at 317. We, however, do not view the Respondent's conduct in this respect as a mere breach of contract; it goes to the fundamental concept of the Union's status as bargaining representative of the Respondent's employees. Under the circum- stances of this case, the Respondent had a statutory obligation to recognize the Union as the exclusive bargaining representative and to permit the Union to func- tion as such. To deny the Union recognition as the exclusive agent under the contract and to frustrate its performance as such bargaining agent constitutes, in our opinion, a failure by the Respondent to fulfill its statutory duty to bargain under Section 8 (a) (5) of the Act. We also find that, as the Respondent's conduct constituted a failure to bargain, it thereby interfered with, restrained, and coerced the Respondent's employees in the exercise of the rights guaranteed in Section 7 of the Act in violation of Section S (a) (1). 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Alleged violation of Section 8 (a) (4) The General Counsel contends that the demand by the Respondent that the unfair labor practice charges in this case be withdrawn as a condition to a strike settlement and the execution of an agreement also violated Section 8 (a) (4) as well as Sec- tion 8 (a) (5), in that at the same time, the Respondent refused to reinstate the strikers until a settlement and contract were agreed to, thereby discriminating against the strikers because of the charges filed in their behalf. The General Counsel fur- ther contends that discrimination against employees because of charges filed by a union on their behalf will support a Section 8 (a) (4) complaint. The Respondent interposes the same defenses against this allegation as it does against the charge that the same conduct constitutes a violation of 8 (a ) (5), that is, that the demand was not a condition precedent to concluding an agreement and that such a request is not an unfair labor practice if it does not prevent a settlement. In addition , the Respondent urges that Section 8 (a) (4) applies only to an indi- vidual employee who has filed an unfair labor practice charge or who has given testi- mony in a Board proceeding. As the Respondent's demand that the charges be withdrawn was retracted approx- imately 14 days after it was made and as the policies of the Act will as well be effectuated by a remedial order based upon a finding that the Respondent in this case violated Section 8 (a) (3) of the Act, we find it unnecessary to determine whether or not the Respondent also violated Section 8 (a) (4). IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The Board finds that the activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening or obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent discriminated in regard to the tenure of employment of their employees by refusing them reinstatement from June 21 to August 3, 1952. Although these employees were offered reinstatement on August 3, 1952, they are entitled to reimbursement for working time lost as a result of the discriminatory action. The Board will therefore order the Respondent to make whole each of its employees for any loss of pay he may have suffered by reason of the dis- crimination against him, by payment to him of a sum of money equal to that which he normally would have earned in such position, from the date of the discrimination against him to the date of his reinstatement , less his net earning during said period. The back pay shall be computed in the manner established by the Board, and the Respondent shall make available to the Board, upon request, payroll and other rec- ords to facilitate the checking of the back pay due. (F. W. Woolworth, 90 NLRB 289.) It has also been found that the Respondent by certain conduct violated Section 8 (a) (5) and (1) of the Act. We shall order that it cease and desist from such activities . However, under the circumstances of this case , we do not believe that an affirmative order to bargain is necessary; we shall, therefore, omit such bargain- ing order. Upon the basis of the above findings of fact and upon the entire record in this case, the Board makes the following: CONCLUSIONS OF LAW 1. Oil Workers International Union, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the em- ployees who went out on strike on April 30, 1952, whose names are listed in the complaint herein, Respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. All production, chemical, and operating employees and all janitors, porters, maids, and laborers, at the Respondent's chemical plant at El Dorado, Arkansas, excluding all other maintenance employees , guards, firemen, office and clerical employees, nonworking foremen , and supervisors , as defined in the Act, constitute LION OIL COMPANY 719 a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. Oil Workers International Union, CIO, was on April 30, 1952, and at all times since has been, the exclusive representative of all employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 5. By refusing to bargain collectively with Oil Workers International Union, CIO, as the exclusive representative of the employees in the appropriate unit, the Respond- ent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 7. The foregoing unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. [Text of Order omitted from publication.] MEMBER MURDOCK, dissenting: I am unable to agree with the majority of this panel that the strike of April 30, 1952, was protected activity. It is my opinion that the strike on that date was undertaken by the Union in violation of Section 8 (d) of the Act and that the strikers therefore lost the status of employees protected by the statute. The General Counsel has urged and the majority has found that on April 30, 1952, the date of the strike, a contract was in "full force and effect." With this finding I am in complete agreement . According to the provisions of the con- tract, which are quoted in the majority opinion, the contract became one with no expiration date after October 23, 1951, unless canceled in the manner pro- vided for in the contract. The method of termination is clearly defined in the contract. Either party desiring to amend the contract was to give such notice not earlier than August 24, 1951, 60 days before the end of the initial term. If agreement on modification was not reached within the 60-day period, the contract became one terminable upon the giving of 60 days' notice of termination by either party. The record discloses that neither party gave the notice to terminate provided for by the contract, and thus it continued in effect up to August 3, 1952, when a new contract was executed. Section 8 (d) of the Act provides certain standards by which the Board must determine whether employers and labor organizations have fulfilled their duties to bargain collectively under the Act. The relevant portions of Section 8 (d) perti- nent to the situation where a contract is in existence are as follows: where there is in effect a collective-bargaining contract covering em- ployees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such a termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event such contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (2) offers to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifi- cations; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultane- ously therewith notifies any State or Territorial agency established to mediate and conciliate disputes within the State or Territory where the dispute occurred, provided no agreement has been reached by that time; and (4) continues in full force and effect, without resorting to strike or lock- out, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: . Any employee who engaged in a strike within the sixty-day period speci- fied in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute , for the purposes of sections 8, 9, and 10 of this Act, as amended. . . . 720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As I stated in my concurring opinion in United Packinghouse Workers of America, CIO, etc. (Wilson & Co., Inc.), 89 NLRB 310 at 319, the language of Section 8 (d) is plain and unambiguous. It sets forth the procedure to be followed in the termina- tion or modification of a contract at its expiration date. My reasons for reaching this conclusion are discussed fully in my opinion in the Wilson & Co. case. It is sufficient here to say that not only does the wording of the several subsections of Section 8 (d) show that Congress was prescribing certain standards of conduct during, the period around the expiration of a contract, but the legislative history concerning. the proviso also supports this view. In the present case, the Union notified the Respondent on August 24, 1951, of its desire to amend the contract. It also notified the Federal Mediation and Con- ciliation Service and the State labor commissioner of the existence of a labor dispute. However, under the terms of the contract that notice did not terminate the contract, and, when October 23, 1951, the end of the 60-day period after the notice to modify and the end of the initial term of the contract, arrived, the contract did not expire,. but under its terms was converted into a contract terminable at will upon the giving of a 60-day notice to terminate. At any time thereafter, upon the giving of the 60-day notice of termination required by its terms, the contract was subject to termi- nation, but it was not so terminated. Section 8 (d) (4) required the Union to refrain from striking for a period of 60 days after notice was given or "until the expiration date of such contract, whichever occurs later." It is questionable to me that the "notice" given by the Union here, and in the circumstances of this case, is the kind of notice contemplated by the statute- However, it is not necessary to determine that question, for, in any event, the exten- sion of the contract continued, as neither of the parties gave the notice to terminate. Even assuming that the notice to modify given on August 24, 1951, met the require- ments of the statute, the expiration date, which occurred later, became the significant date and the one which marked the end of the Union's obligation to refrain from striking. As the Union did strike within this period, it violated Section 8 (d) (4) and the strikers thereby lost their status as employees of the Respondent and were not entitled to reinstatement at any time after they struck on April 30, 1952. In view of the Union's failure to comply with Section 8 (d) of the Act and the Respondent's genuine attempts to reach a collective-bargaining agreement from August 29, 1951, to August 3, 1952, when a new contract was executed, I would not find a violation of Section 8 (a) (5) in the isolated incidents upon which the majority finds a technical violation. As I would find neither a violation of Section 8 (a) (3) nor Section 8 (a) (5), f would dismiss the complaint herein. CASHMAN AUTO COMPANY and LOCAL 841, INTERNATIONAL BROTHER- HOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMERICA, AFL, AND LODGE 1898 OF DISTRICT 38 OF INTERNATIONAL ASSOCIATION OF MACHINISTS, AFL RED CAB COMPANY and LOCAL 841, INTERNATTONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WAREHOUSEMEN AND HELPERS OF AMER ICA, AFL, AND LODGE 1898 OF DISTRICT 38 OF INTERNATIONAL ASSO- CIATION OF MACHINISTS, AFL. Cases Nos. 1-CA-875 and 1-CA-876. August 5,1954 Supplemental Decision and Order On March 26, 1952, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding, which order was thereafter enforced by the United States Court of Appeals for the First Circuit by a decree entered on December 11, 1952. The decree provided, inter alia, that the Respondents make whole certain of their 109 NLRB No. 105.