Mathieson Chemical Corp.

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the' recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we notify our employees that: WE WILL NOT discourage membership in United Furniture Workers of Amer- ica, CIO, or any other labor organization of our employees, by discriminating in regard to their hire or tenure of employment or any term or condition of employment. WE WILL NOT interrogate our employees concerning their membership, union affiliations, activities, or sympathies, on behalf of United Furniture Workers of America, CIO, or any other labor organization of our employees, or threaten them with discharge because of their union affiliations, activities, or sympathies, in a manner constituting interference, restraint, or coercion in violation of Sec- tion8 (a) (1). WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form, join, or assist United Furniture Workers of America, CIO, or any other labor organization, to bar- gain collectively, through representatives of their own choosing, and to engage in concerted activities for the purpose 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 condition of employment, as authorized in Section 8 (a) (3) of the National Labor Relations Act. WE WILL offer to James Childress, Ethel Childress, Louise Durham, and Glover Jackson, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and priv- ileges previously enjoyed, and make them whole for any loss of pay suffered by them as a result of the discrimination in the manner and to the extent rec- ommended in the Intermediate Report. All, of our employees are free to become or remain members or to refrain from becoming or remaining members of the above-named Union, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. We will not discriminate against any employee because of membership in or activity on behalf of any such labor organization. SAnrns LUGGAGE 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. Mathieson Chemical Corporation and/or Olin Mathieson Chem- ical Corporation anal United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 152, AFL and United Broth- erhood of Carpenters and Joiners of America, Local 1369,. AFL and International' Brotherhood of Electrical Workers, Local 425, AFL. Cases NQs-. 6-6A-435,6-C4= 836, and A-837. October 18, 1955 DECISION AND ORDER On June 17, 1955, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that ,14 NLRB No. 85. MATHIE.ON CHEMICAL CORPORATION 487, the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom .and take certain affirmative action, as set forth in the copy of, the In- termediate Report attached hereto. Thereafter the Respondent filed exceptions to the Intermediate Report and a brief.' The Pipe Fitters also filed a brief. 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. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, with the modifications noted below. 1. Because the facts in these cases satisfy us that the Respondent's motivation was discriminatory, we agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) and (1) of the Act with respect to the major issue, the Respondent's new superseniority policy. It is highly significant that not until the strike was over, and all the strikers had been put back to work, did the Respondent for the first time decide to separate its employees into two seniority groups for layoff purposes, depending on whether or not they had returned to work before the end of the strike. The Respondent does not claim and there is no suggestion in the record that, as an economic measure to get employees to work during the strike, it had promised them super- seniority. In fact, it does not appear that the matter of relative seniority was ever mentioned to any employees before the end of the strike. Nevertheless, in the ensuing economic layoff, the Respondent in effect dismissed the complainants because of their protected ac- tivity in remaining on strike until its termination, while retaining an equal number of other employees with less seniority because they had not remained on strike. It was stipulated that the complainants would not have been selected for layoff under the seniority system estab- lished pursuant to the old contracts-the only layoff system shown, by the record to be in effect at the Respondent's plant prior to the ad- vent of superseniority. Moreover, it is clear that even under the new system the complainants would not have been -laid off if they too had returned to work before the Unions called the strike off. On these facts we are convinced, as was the Trial Examiner, that the- Respondent's change of seniority policy and its consequent dis- missal of the complainants were in fact motivated, not by any legit- imate economic interest of its own, but by a desire to punish the coln- 1 The Respondent also filed a motion to incorporate into the record a posthearing contract made with one of the Charging Unions, Carpenters The General Counsel opposed the motion on the ground that the alleged contract had no bearing on the issues. For the reasons set forth in N. L R. B v. American National Insurance Company, 343 U S. 395, footnote 4, and Efco Manufacturing Company, 108 NLRB 245, the motion is hereby denied. Ogg' DECISIONS OF NATIONAL - LABOR RELATIONS -BOARD plaindhts-for exercising the right -guaranteed : in Section 7 to engage in-concerted-activities, and a wish to reward the 'other employees for abandoning or not participating in the strike. Whether the Respond ent's unlawful actions are regarded as a discouragement of member- ship in the Unions which the employees had selected as their collet tive-bargaining representatives, and thus a violation of Section 8 (a}' (3) of the Act, or as an infringement of the more general statutory right to engage in concerted activities for mutual aid or protection and thus a violation of Section 8 (a) (1), we find that the remedy herein- after ordered is necessary to effectuate the policies of the Act 2 2. The unlawful motivation underlying the Respondent's proposal and imposition of the superseniority clause during the very time it was ostensibly bargaining with the Unions, clearly reveals also its bad faith in the contract negotiations themselves. As we have already found, the Respondent's discriminatory seniority policy was a re- taliatory measure to penalize its employees for having exercised their statutory rights. Its argument now, that the simultaneous attempt to cement that policy in a final contract reflected only a good-faith- desire to perpetuate its concept of economic justice, is hardly persua- sive. Rather, the Respondent's invocation of the new seniority policy in the contract negotiations, and its insistence even a year later- although all other issues had been settled between them-that the Unions either accept the new policy or forego any contract at all, establish that it did not deal with the Unions in good faith, as it was required to do under the statute. Indeed, in the circumstances of this case, the Respondent's insistence upon its seniority-clause demand satisfies us that throughout the bargaining period involved, its conduct towards the Unions was colored by a bad-faith resolve never to come to terms on a written agreement. Viewed against this background, the Respondent's other responses to the Unions' attempts to continue the bargaining conferences gain added significance as also revealing an outright decision to refuse to bargain. Thus, on March 15, 1954, it re- jected the Unions' request for a collective-bargaining meeting with a statement that the Unions' proposal should be made through the Federal Mediation and Conciliation Service; on April 15 or 16,1954, it turned down another, bargaining request with the advice that the Unions' proposal be submitted in writing; and finally, on April 27, 1954, it refused still another invitation to bargain by simply saying that an impasse had been reached and that further negotiations would 2 In defense of its action the Respondent cites the case of N. L R. B v. Potlatch Forests. Inc., 189 F. 2d 82 (C. A 9 ), where the court denied enforcement of an 8 (a) (3) finding on somewhat similar facts. We have carefully considered the Potlatch decision and are of the unanimous opinion that it is distinguishable on its facts from the instant case. In any event, Acting Chairman Rodgers and Member Murdock are constrained, with due deference to that court , to disagree with the decisionito , the extent that. it may contict .with the present finding. MATHIESON CHEMICAL CORPORATION 489 be futile.3' 'On the foregoing facts, and on the entire record, we find, as did the Trial Examiner, that the Respondent' refused to bargain with the Unions and thereby violated Section 8 (a) (5) and (1) of the Act.- ,. ORDER Upon the entire record in these cases , and pursuant to Section 10 (c): of the-National Labor Relations Act, as amended, the National Labor Relations-Board hereby orders that the Respondent, Mathieson Chemical Corporation and/or Olin Mathieson Chemical Corporation, Morgantown, West Virginia, and its officers, agents, successors, and assigns,-shall: - 1. Cease and desist from : -(a)- ;Discouraging membership in or lawful activities on behalf of United Association of Journeymen and Apprentices of the Plumbing and 'Pipe Fitting Industry of the United States and' Canada, Local 152, AFL; United Brotherhood of Carpenters and Joiners of America, Local 1369, AFL; International Brotherhood of Electrical Workers, Local 425, AFL; or any other labor organization,- by laying off any of its employees or otherwise discriminating in regard to hire or tenure of employment or any term or condition of employment. (b) Refusing to bargain collectively with any of the above-named labor organizations as the exclusive representative of all its employees in the ,respective unit herein found -to be appropriate, with respect to rates of pay, wages, hours of work, and other conditions of employ- ment. - - (c) In any other manner interfering with, restraining;,or coercing its employees in the exercise of the right to self-organization, to form or join labor organizations, to assist any of the above-named labor organizations, to' bang zin collectively through representatives of their own choosing, and to engage in concerted activities'for the purposes of collective bargaining or other mutual aid or protection, and 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 organi- zation as a condition 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) Offer to Robert Permar, Michael D. Eddy, Sr., Herman Morris, Francis Ruggerio , Wayne O. Mayfield, C. B. Smyth, and Elwood Frum immediate and full reinstatement to their former or substan- tially equivalent positions without prejudice to their seniority or other a } We do not adopt the Trial Examiner's finding that the Respondent 's failure to reply to a bargaining request of the Unions dated March 23 also constituted an unlawful refusal to bargain . Instead, we find, as also appears in the Intermediate Report, that 7 the Respondent did reply to this request on March 30 . 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rights and privileges, and make them whole in the manner set forth in the section of the Intermediate Report entitled "The Remedy.". (b) Upon request preserve and make available to the Board or its agents for examination and copying, all payroll records, social-se- curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of back pay due under the terms of this Order. (c) Rescind forthwith its discriminatory seniority policy an- nounced on April 2, 1954, and effectuated on April 9, 1954, and restore all employees affected thereby to the seniority they would have en- joyed absent such discriminatory policy. (d) Upon request bargain collectively with each of the three above- named labor organizations as the exclusive representative of all the employees in the respective appropriate unit, and embody in a signed agreement any understanding reached. (e) Post at its place of business in Morgantown, West Virginia, copies of the notice attached to the Intermediate Report marked "Ap- pendix." 4 Copies of said notice, to be furnished by the Regional Di- rector for the Sixth Region, shall, after being duly signed by the Re- spondent, be posted by it immediately upon receipt thereof and main- tained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Sixth Region in writing, within ten (10) days from the date of this Order, what steps the Re- spondent has taken to comply herewith. MEMBER PETERSON took no part in the consideration of the above Decision Ad Order. * The notice shall be amended , however, by substituting for the words "The Recommenda- tions of a Trial Examiner" in the caption thereof , the words "A Decision and Order." 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 " INTERMEDIATE REPORT STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, was heard before the duly designated Trial Examiner at Morgantown, West Virginia, on May 16 and 17, 1955, pursuant to due notice to all parties. All parties were represented at the hearing and were afforded full opportunity to be heard, to examine and cross -examine witnesses, to introduce evidence relevant and material to the issues, to argue orally upon the record , and to file briefs and proposed findings General Counsel engaged in oral argument, the Respondent and the Pipe Fitters filed briefs. The consolidated complaint , issued by the General Counsel of the National Labor Relations Board, the latter herein called the Board, alleges in substance that the above-named Respondents : ( 1) Since on or about March 15, 1954, have refused MATHIESON CHEMICAL- CORPORATION 491 to bargain in good faith with the above-named labor organizations as exclusive bargaining representatives of employees in certain appropriate units; (2) on April 2, 1954, discriminatorily altered its previous seniority policy to discourage mem- bership in and activities on behalf of said labor organizations; (3) on April 9, pursuant to said seniority policy, discriminatorily laid off seven named employees and since then has refused to reinstate them; and (4) by such conduct has interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act. In its duly filed answer the Respondent denied the commis- sion of the alleged unfair labor practices. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Olin Mathieson Chemical Corporation is a Virginia corporation engaged in the manufacture, sale, and distribution of ammonia, methyl alcohol, hexamine, and coke oven byproducts in several States of the United States, having its principal office in Baltimore, Maryland. On or about August 31, 1954, as the result of a corporate merger, the business of Mathieson Chemical Corporation and its Morgantown, West Virginia, plant, the only facility here involved, was continued under the name and style of Olin Mathieson Chemical Corporation. Mathieson Chemical was a Virginia corporation, also, with a principal office in Baltimore, Maryland, and with plants and places of business in various States, including the Morgan- town plant, where it was engaged in the production and sale of the above-described products. During the 6-month period before August 31, 1954, the latter corporation made, sold, and shipped products valued at more than $1,000,000, of which amount more than 90 percent was shipped from Morgantown to points outside the State of West Virginia, and during the same period it purchased raw and other materials for use at its Morgantown plant valued at more than $1,000,000, of which about 30 percent came from points outside West Virginia. During the 6-month period between September 1954 and March 1955, Olin Mathieson made, sold, and shipped products and purchased raw materials in value and percentages in interstate com- merce as above-described for Mathieson Chemical. The Respondent, the term hereinafter used to cover both corporations, stipulated at the hearing that it was engaged in commerce within the meaning of the Act and that the Board has jurisdic- tion. It is so found. H. THE ORGANIZATIONS INVOLVED United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 152, AFL, United Brother- hood of Carpenters and Joiners of America, Local 1369, AFL, and International Brotherhood of Electrical Workers, Local 425, AFL, are labor organizations within, the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues The major issues arise from the Employer's decision , made during or soon after an economic strike, and as expressed by the testimony of Plant Manager M. B. Wright, to "retain in the work group" with seniority over strikers all employees who did not strike or who returned to work during the strike. Specific acts claimed by General Counsel as violative of the Act were in implementation of this decision, and consist especially of: (1) A proposal made on April 2, 1954, and at all times thereafter insisted upon by the Employer, that new contracts being negotiated must include a clause granting "super-seniority" to "any employee . . . who re- mained at or returned to work . . . during the period from February 25, 1954, to noon March 17, 1954"-the full term of the strike above referred to, and (2) the unilateral effectuation of that policy by actually laying off in accordance with its provisions certain employees who took part in the strike and failed to return until it was called off. The complaint also claims, as additional items of refusal to bargain in good faith, that the Respondent engaged in "dilatory and delaying" negotiating tactics, and that it refused to discuss any issues between April 27, 1954, and March 3, 1955. In the two succeeding sections will be set forth: (1) the relevant facts; and (2) the opposing contentions of the parties- and the,Trial Examiner's conclusions. 492 DECISIONS,AF.NATIONAL LABOR RELATIONS BOARD B. The facts, In 1952, the following Board-conducted elections,' the, three labor organizations here involved as Charging Parties were duly certified 2 as the exclusive bargaining representatives for certain groups of maintenance employees, as follows: United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 152, A. F. L. (herein called the Pipe Fitters) for the units found appropriate by the Board: All pipefitters and helpers, excluding all other employees and supervisors. All welders and helpers, excluding all other employees and supervisors. All instrument repairmen and helpers, excluding all other employees- and supervisors. United Brotherhood of Carpenters and Joiners of America, Local 1369, A. F. L. (herein called the Carpenters) for the units found appropriate by the Board: All machinists, bench mechanics and helpers, excluding all other employees and supervisors. All millwrights and helpers, excluding all other employees and supervisors. All material fabricators and helpers, excluding all other employees and supervisors. All carpenters and helpers, excluding all other employees and supervisors. International Brotherhood of Electrical Workers, Local 425, A. F. L. (herein called the Electrical Workers) for the unit found appropriate by the Board: All electricians and helpers, excluding all other employees and supervisors. Following the certifications and negotiations, the Respondent entered into contracts with the three craft Unions. All three contracts were to expire on February 10, 1954. In November 1953, the Unions formally notified the Employer, in accordance with terms of the existing agreements, that they desired to negotiate certain modifications. In December the Employer acknowledged the request and, in its turn, expressed a desire to modify the contracts. Negotiations began on or about January 10, 1954. Thurman L. Radford, business representative for the Pipe Fitters, served as spokesman for the craft Unions. Between January 10 and February 10-when the contracts were to expire-about a dozen meetings were held. No full agreement was reached, although it appears that there was give and take on both sides. On February 10 representatives of the three Unions and the Employer sent a joint telegram to the Federal Mediation and Conciliation Service. Relevant excerpts from that wire are: - • The three unions jointly and the company have been attempting to renegotiate a contract expiring Feb. 10, 1954. A number of items have been agreed upon. A number of items including a wage increase, certain additional fringe benefits, and other proposed contractual clauses are in dispute. Both parties have reached a point where agreement appears impossible. A strike has been threatened any time after midnite Feb. 10, 1954. To avoid this it is imperative that as soon as possible, mediation and concilliation [sic] machinery be used in attempt to reconcile the differences.3 Mediation officials attended subsequent -meetings. On February 17 the Unions withdrew some of their proposals but, particularly as to wages, no agreement was reached. On February 24 the strike began. General Counsel concedes that the strike was economic in nature. ",On March 15, Plant Manager Wright sent Radford'the following letter: - - You will be interested in knowing that on Wednesday, March 17, 1954, the Company will start to interview applicants for some of the jobs which were for- merly filled by striking employees. This is information which I felt is in your interest to know. - Upon receipt of this letter Radford promptly telephoned Thomas Kileen, the company attorney and negotiator, and asked for a negotiation meeting. Kileen re= plied that if,Radford had,any proposals to make he should make them through the Mediation. Service. Radford thereupon called a Mediation official, reported Kileen's I The Board's Decisions,. Orders,- and Direction of Elections are set but in Mathieson Chemical- Corporation, 100 NLRB 1028 and 101 NLRB 274 2 The certifications were stipulated by the parties in these proceedings. .3 The saine wire also pointed out "the 60 day notice required by law:' had been filed by the Unions. - - - , f ' ' MATHIESON CHEMICAL CORPORATION,"-,,'., , 493 communication, and asked him io arrange 'a meeting. This official - told. Radford that A.' A. Abner, assistant to the president of the Respondent, would not be avail- able for a meeting for a week. About the same time Radford was approached by James Coon, head of the local chamber of commerce and of a citizens' committee, who offered services to -obtain peaceful labor relations at the Respondent's plant. Radford responded that the best thing he and his committee could do would be, to arrange for the `resumption of negotiations between the Company and the Unions. Later Coon communicated with Radford, and asked him, "If this citizens' committee would request you to return the striking employees to work at the plant, and negoti- ations would be resumed, and you return them to work under the terms of the old agreement, would you be agreeable" Radford agreed to this proposal, the strike was terminated, and the strikers re- turned to work at noon on March 17. Whatever the basis for Coon's assurance to. Radford that negotiations would resume,4 none were immediately held. On March 23, Radford sent the following 'communication to the Company: On March 15, 1954, I telephoned the Mathieson Chemical Corporation and requested that negotiation between the Mathieson Chemical Corporation and the 3 AFL Unions, which represent certain of the Company's employees, be resumed. After conferring with Mr. A. S. Gilliam and Mr. Kileen, Mr. Kileen advised me, in part, to relay my proposal of resuming negotiations to Mr. William Rose of the Federal Mediation and Conciliation Service. On March 15, 1954 I contacted Mr. William Rose of the Federal Mediation and Conciliation Service, and advised him that it was the desire of the 3 AFL Unions to resume negotiations. I was informed by Mr. Rose that Mr. A. A. Ahner [a company representative] would not be available for a meeting with us during the week ending March 20, 1954. We hereby offer to meet and confer with the Representatives of the Company for the purpose of negotiating further on the unresolved issues and looking toward the fulfillment of our mutual obligation-the execution of a written agreement. Although this letter was sent by registered mail, the Respondent did not reply to it. On March 29, Radford again wrote to the Respondent, pointing out that he had not .received a reply to his previous letter, quoting from it, again seeking meetings, and concluding: I had hoped that directing the striking employees, of the 3 AFL Local Unions, to return to work, without any agreement whatsoever, would demonstrate to the Company and the Public -our sincere desire to resolve the issues between the Company and our Unions. If the Mathieson Chemical Corporation continues to refuse to bargain in good faith by ignoring our repeated efforts to resolve our differences; the alternatives which we may pursue are very limited. This letter was also published in the local newspaper. On March 30, Assistant Manager A. S. Gilliam, of the Respondent, replied as follows: This is in reply to your letter of March 23, 1954. We will meet with you at"a time mutually convenient to consider such matters as may be germane. 'I would suggest Friday, April 2, as a date for a meeting provided this is agreeable to you and your committee. A meeting was held on April 2. , At this meeting the Employer offered to sign contracts with the three Unions containing all provisions previously agreed to except .that the seniority clauses must include,the following addition: Anything in this Article IV on- seniority to the contrary notwithstanding, employees in the journeymen classification and•employees in the Helper Classi- fication within a Work Group covered by this Contract who were not at, work from February 25, 1954, until at or after noon on March 17, 1954, shall be laid off before any employee so classified in the same- Work Group who remained at or returned to work or was hired' during the period from February 25, 1954; to noon March 17,. 1954, is laid- off. , * The complaint does not claim, nor is any,finding made, that the "citizens' committee" was an instrument of the Respondent. , r - , 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the same time the Respondent informed the `union representatives that it intended to lay off 94 employees in the maintenance' department the following week, on April 9, and that the superseniority policy contained in the above proposal would be used in selecting individuals for the layoff. The Unions flatly rejected the proposal and protested against the announced statement of layoff policy. Despite the Unions' unequivocal rejection of this seniority policy, on April 9 the Respondent proceeded with the layoff in accordance with it. The seven individuals here involved, who were laid off on April 9 out of their regular seniority order while others of lesser seniority were retained, are as follows: Robert Permar Francis Ruggerio Michael D. Eddy, Sr. Wayne O. Mayfield Herman Moms C. B. Smyth Elwood Frum 5 Employees retained, while the above-named were let go, were employees who had either returned to work during the strike or who did not strike. None of the seven above-named employees has been recalled to work. (This finding is a reasonable inference drawn from the facts: (1) The Respondent offered no evidence to refute the allegation of the complaint that-since April 9, 1954, said employees have been refused reinstatement, and (2) the testimony of Plant Manager Wright to the effect that up to the time of the hearing and since the layoff of April 9, 1954, with the exception of recalling two welders unidentified and apparently not here involved, there has been no change in the size of the maintenance groups employed.) On April 15 or 16, Radford telephoned Kileen seeking a negotiating meeting, but was informed that the Company did not wish to meet with the Unions, and that if he had any proposals to make they should be submitted in writing. On April 20, Radford wrote to the Respondent, stating in part: On April 16, 1954, I telephoned the Mathieson Chemical Corporation and requested of Mr. T. E. Kileen a negotiation session between the Mathieson Chemical Corporation and the 3 AFL Unions which represent certain of the Company's employees. Mr. Kileen stated that the Company did not wish to meet and suggested that we submit our proposals in writing. Since, apparently, we have no other alternative, we are submitting, in part, our proposals. In doing so, we would like to point out that this is a very impractical method of resolving the many issues that remain unresolved. The letter then outlined certain union proposals, including a reduced wage demand, and repeated its request for a meeting with the Employer's representatives. On April 27, Wright replied as follows-the text of his letter being quoted in full: This is in reply to your letter of April 20, 1954. As you know, we negotiated for several months regarding the renewal of the the three A. F. L. contracts which expired simultaneously on February 10, 1954. The only issue was a wage increase which we opposed. Your group went out on strike to enforce your demand for a wage increase. We told you repeatedly in meetings before and during the strike, and in one meeting held after the strike, that there could be no wage increase granted this year, giving you our ieasons therefor in detail many times. As a result of the strike, certain new issues arose. At the meeting after the strike on April 2, 1954, we stated the conditions under which we would sign an agreement and you said those conditions were totally unacceptable to you and you could never agree to them. We stated that our offer would remain open for five days. We next heard from you on April 15, asking for a meeting to discuss "'the unresolved issues." We told you that we do not propose to sit in a series of futile meetings repeating our respective position and asked that you submit any new proposal in writing. You have now done so. You still propose a wage increase, although we have told you in many meetings over a period of several months that we could not b It was stipulated at the hearing by the parties that the above-identified employees were thus laid off. Since no evidence was offered, and, the Respondent does not claim;'that any , new employees were hired as replacements during the -strike, that issue clearly is not before the Trial Examiner, and will not be discussed, herein. MATHIESON CHEMICAL CORPORATION 495 grant a wage increase . You totally'ignore the new issues which arose as a re- sult of the strike. ` Your position is utterly unrealistic. It illustrates the futility of further meetings on questions regarding which we are apparently hopelessly in opposition. We are forced to reject the proposals contained in your letter of April 20. It is unnecessary to cite reasons which have been given to you so many times before. We see nothing to be gained in a meeting such as you propose. You know our position too well to waste your time and ours in futile discussions of pre- viously rejected proposals. Radford took this letter as a refusal to meet and shortly thereafter, on June 7, all three AFL Unions filed charges against the Respondent with the Board, claiming violations of the Act by refusing to bargain and by discriminating against strikers. After thus replying, on April 27, 1954, to the Unions' request to meet, the Re- spondent did not communicate with Radford again until February 12, 1955, when Wright wrote to him as follows: We have not heard from you since we wrote you April 27, 1954. We now re- instate the proposal made by us in that letter and the proposal we made in our meeting with you on April 2, 1954, ammended [sic], however, as follows: We propose to increase the straight time hourly wage rates for any employees which may represent in the amount of 3¢ per hour effective February 13, 1955; provided we receive your concurrence. We will be glad to receive your con- currence in writing and if you prefer to confer with us, you may do so. On February 15, Radford replied, pointing out that the Company' in its letter of April 27, 1954, above quoted, had refused to meet as requested, and that a number of unresolved issues had then been pending, and agreeing to meet on any day set by the Company. The parties met on March, 3, 1955. Representatives of the three Unions, including Radford, were present. No witness at the hearing testified fully as to his recollec- tion of all discussions at this meeting. Copious notes taken by Industrial Relations Manager W. T. Webb were received in evidence. It appears unnecessary here to attempt complete reconstruction of this negotiating meeting, since there is no apparent dispute as to understandings reached except as to a single matter-that of actual inclusion in written agreements of the new seniority policy unilaterally put into effect by the Company on April 2, 1954. In substance, the testimony and Webb's notes show that agreement was reached, or discussions dropped, on all points except that of seniority. As to the "superseniority" amendment, quoted heretofore, it ap- pears from cross-examination of Radford by counsel for the Respondent that the latter sought to establish that the Unions, on March 3, actually agreed to permit in- clusion of the disputed clause in written agreements. Not only did Radford stoutly and credibly deny having made such an agreement, but the apparent claim is not supported by testimony on the part of Respondent's witnesses, nor by Webb's notes. In any event, as the exchange of later correspondence shows-which is quoted be- low-the Unions made it unequivocally plain to the Company, before the written agreements were submitted for signature, that it would not accept a contract con- taining a clause which it was claiming, before the Board, to be illegal. On March 14, Radford wrote to the Respondent as follows: In accordance with the discussions that Representatives of United Association Local Union No. 152, I. B. E. W. Local Union No. 425, and Carpenters Local Union No. 1369 had with your Representatives on March 3, 1955, we herewith accept the entire proposals of your Company, unconditionally, which are as follows: ' 1. Increase of three cents ($.03) per hour for all employees represented by the above Local Unions. 2. All of the proposals which were tentatively agreed upon prior to the strike. 3. A One-Year Agreement. 4. Seniority Provision proposed by you on April 2, 1954, and against which an Unfair Labor Practice Charge is now pending before the National Labor Relations Board, will be held in abeyance until the Board renders its decision. If the -Board determines that your proposed provision is legal, then the Contract will be amended to include it. 496 DECISIONS=-OF 'NATIONAL LABOR ;RELATIONS BOARD -' 'If the Board determines that the-provision is - illegal then-the, Seniority Provision of the last Contract shall be, included. in the present Contract by.amendment. If you will draft contracts and forward them to us, we will execute them. - Despite Radford's above-quoted written statement of his understanding that the controversial seniority clause was to be "held in abeyance until the Board renders its decision," Wright on March 21 sent to the Unions-written agreements for signa- ture which contained the seniority, clause, and accompanied the contracts with a cov- ering letter which said, in part: In accordance with your letter of March 14, in which you advise that United Association Local Union No. 152, IBEW, Local Union No. 425, and Carpenters Local Union No. 1369, have unconditionally accepted the entire proposals made on March 3, 1955, by the, company to the representatives of these three unions in a negotiating session held at Morgantown, we are send- ing you enclosed herewith copies of agreements between the company and each of the unions for execution by the unions and return to us. Wright in the same letter called particular attention to the disputed seniority clause. In view of the apparent position taken by counsel for the Respondent during the hearing, as to agreement reached on Match 3, it is noteworthy that Wright makes no such claim in his letter. As to the seniority clause he says: "Pending final adjudication of the strike-seniority issue raised by the three local unions, we, on March 3, 1955, proposed that the strike-seniority provision above referred to would remain unchanged, but that if final adjudication of the strike issue were adverse to the company, the second paragraph'of Article IV, Section 5 (a) would, in accordance with such decision, be deleted from the contract." [Emphasis supplied.] On March 30, 1955, Attorney Thomas X. Dunn for the Pipe Fitters, who had been present at the March 3 meeting, replied to Wright's above-quoted letter as follows: As counsel for the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada and Local Union 152, it was not my understanding that the strike seniority pro- vision (Art. IV, Section 5-A) would be included in a new agreement, pend- ing a determination of the legality of that provision by the National Labor Relations Board. The proposal was that if all other conditions were agreed upon, then the status of the strike seniority would be left for the Board. For these locals to agree to the insertion of the strike seniority provision in their contract at that time would obviously be placing them in the position of expressly agreeing that you could continue to commit an unfair labor practice while we are claiming the opposite before the Board. They, in effect, would be consenting to your illegal conduct and the question of waiver and estoppel could become an issue in the case where such does not exist at this 'time. There is no purpose, legally or factually, for your insistence that this pro- vision remain in the contract, and when the writer appeared at the March 3, 1955 conference, he did so hoping that the parties, in good faith, could come to an understanding on all differences except the matter pending before the Board. It is apparent that you do not wish to deal with these local unions and par- ticularly it is your wish that they not represent any men in your plant. We consider your conduct in refusing to execute a contract as further evidence of bad faith and refusal to bargain. Local 152 will not waive any of its rights in, the case- before the Board by executing an agreement with the strike seniority clause contained in it. In the last piece of correspondence exchanged before the hearing to be introduced into evidence, Wright replied to Dunn's letter as.follows, on April 7, 1955: The proposal of the Company'made to the three unions March 3, 1955, was. carefully explained, and I believe you will recall-'having clarified the strike- seniority proposal for Mr. Radford during the--meeting. In order that there would be no misunderstanding, we offered to furnish to the unions copies of all revised 'articles, and did so with certain exceptions at the meeting on March 3. The other revisions including the one on strike-seniority were sent to, Mr. Radford following the meeting with our letter of March 3. ' MATHIESON 'CHEMICAL` CORPORATION = 497- Mr. Radford advised us by letter, dated' March '14 'that the three unions "unconditionally" accepted the proposal' made by the Company, and we for- .warded to Mr. Radford 6 copies of each of the three contracts for execution as required by him. The Company, as ' we ` indicated in our letter of March 21, is ready and willing to execute the contracts sent the unions embodying the agreements reached by the parties' good faith in collective bargaining.- We had hoped to expedite contract execution by sending them all to Mr. Radford as he suggested, and we advised him that we would execute them for the Company upon their return, signed,'by us. ' We look forward to consummating the agreement reached by the Company and the three unions through execution of the contracts sent Mr. Radford which embody that agreement. Before turning to resolution of the matters in legal dispute, it would be appro- priate to resolve the apparent controversy as to facts, particularly as to whether or not there was: (1) agreement by the Union, on March 3 or thereafter, to permit inclusion of the Company's seniority clause in the contract, or (2) agreement by the Company to exclude it, as alleged by an amendment to the complaint at the hearing The Trial Examiner finds that no agreement was reached on this point. Careful reading of Webb's copious notes, which are in evidence, reveals only that the com- pany attorney insisted that the clause be included and that Radford as stoutly ob- jected. The testimony of Gilliam, a company representative present, further sup- ports the finding that no agreement was reached, as shown by the following ex- cerpts: (Gilliam),. . . Mr. Dunn expressed to Mr. Radford at that time thinks Mr. Stull has made it clear, amounts to having it in the contract, or leaving it up to the Board; then the Board will determine. Q. Did that satisfy Mr. Radford, as you recall? A. It didn't appear to. . . . A. The last reference to seniority, as I recall it-and I am refreshing my mind from my notes-was near the end -of the meeting when Mr. Dunn in- quired about the seniority clause, and suggested that if the locals here, if they withdrew the no-strike issue, would it then be enough to change the com- pany's mind on seniority by withdrawing our position on this and put the old seniority -back, at which Mr. Stull replied, "No, we aren't withdrawing anything... . Nor do Wright's two letters, of March 21 and April 7, quoted above, warrant belief that-he considered that any such agreement to include the clause had been reached on March 3. In both letters he refers only to what he claims was unconditional ac- ceptance on March 14, in Radford's letter of that date, of, the proposals made by the Company on March 3. Radford's letter is not ambiguous. Its language plainly transmits the message that the Unions were unconditionally accepting the proposal that the disputed clause be kept out of any signed agreement unless and until it should be found legal by the Board. For whatever reason, Wright chose to lift the words "unconditional" and "accept" from their context. - Whether Radford's recollection was correct or not, to the effect that on March 3 the Company agreed to hold the seniority clause in abeyance, it is clear that no agreement was ever reached by the parties to include it in the contract until its legality had been passed upon by the Board. On the other hand, Radford's testi- mony as to his recollection lacks support in that of employee Heldreth, also present at the March 3 meeting. The Trial Examiner believes the evidence insufficient to, establish clearly that on that date the Company agreed to hold the clause in abeyance. C. Conclusions No evidence to the contrary having been offered by the Respondent , and all testi- mony on the point indicating that at all times material the parties have been negotiat- ing on that basis, it is concluded and found that: (1) The units described in section III, B, above, are appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act; (2) since October 6 and December 9, 1952, the re- spective labor organizations involved herein have been and now are the exclusive bargaining representatives of the employees in said units ;, and (3 ) since on or before March • 15, 1954, and at'all times thereafter, said labor organizations have sought to, bargain collectively with the Respondent. - , ' • , • , -, ' 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As noted heretofore, the major issue for determination here is whether or not, under the Act, the Respondent's imposition and effectuation of the new seniority policy were unfair'labor practices. It has been found above that on April 2, 1954, during negotiations, the Em- ployer announced the new policy and proposed that the Unions agree to it, and that on April 9 despite the Unions' flat objections the Employer laid off employees in accordance with it. Just what is the nature of that policy? It gave returning strikers employment rights of value greater than they had earned by mere length of service with the Company. Wright's testimony makes it plain that it was given, as a re- ward, to employees abandoning the strike or not going on strike. He said: ". '. we owed these men an obligation for as much job' security as possible." There being no evidence to the contrary, it is reasonably inferred that the Employer assumed this "obligation" voluntarily, without request from anyone and without necessity. Indeed, in his brief counsel for the Respondent says: ". . . the necessity for protecting Com- pany's business was not mentioned." No claim was advanced that the "obligation" was assumed in order to get replacements during the strike-new employees in con- tradistinction to employees on strike. It was a gift, in short, to employees who had abandoned their right to engage in protected concerted activities. But it was not a gift, or reward, coming out of the Employer's pocket. Until a layoff occurred, it could be of value only as psychological "job security"-mental assurance that the recipient would be among the last to go, no matter how long he had worked for the Company. When the "obligation" was satisfied and the so-called debt paid, its substance came out of the very employment tenure of fellow-employees, as actually happened on April 9. Men with longer service were let go. Thus the discrimination, both in latent policy and overt application, was real and not incidental. The return- ing striker could not benefit, in terms of employment, except at the expense of the striker who chose to exercise his legal right. In short, the nature of the policy was such that the reward could not be paid one except by simultaneously punishing another. The same coin, with two 'sides, taken from one employee's pocket and given to another. Had the Respondent merely offered such an inducement to its employees while they were on strike, its act would have been found violative of the Act by the Board, in accordance with its decision in Dinion Coil Co., Inc., 110 NLRB 196. There the Board found that during a similar economic strike occurring during negotiations the employer "bypassed the Union, and tended to undermine its prestige as the em- ployees' exclusive representative" by threatening to withdraw, among other things, "seniority credits " In his able brief, counsel for the Respondent appears to rely mainly upon the con- tention that "There is here no evidence of discrimination nor of any purpose or at- tempt to discourage union membership," and upon the decision of the United States Court of Appeals for the Ninth Circuit, in Potlatch Forests, Inc., 189 F. 2d 82, which set aside 87 NLRB 1193, quoting from that court decision- So far as Sec. 8 (a) (3) is concerned, Potlatch may adopt any rule of seniority it desires-whether or not that rule violates an existing agreement-so long as that rule does not discourage union membership by discrimination. Counsel failed to quote the following, however, from the same decision: In the instant case, therefore, the "discrimination" between replacements and strikers is not an unfair labor practice despite a tendency to discourage union activities, because the benefit conferred upon the replacements is a benefit reasonably appropriate for the employer to confer in attempting "to protect and continue his business by supplying places left vacant by strikers." As noted heretofore, the Respondent makes no claim that the reward to returning strikers in this case was to "protect or continue" the business. It appears to the Trial Examiner that on this point, as well as others pointed out by General Counsel in his argument, and by counsel for the Pipe Fitters in his brief, this case is distinguishable from Potlatch. It has been found that the new policy was discriminatory in favor of employees leaving the strike and against those who remained on strike until called off. It has also been found, on the basis of Wright's testimony, as well as the plain facts of the labor dispute, that the motive for inaugurating and applying the new policy was to reward employees who abandoned the strike and to punish those who had remained on strike. The Board and the courts have long held that it is common knowledge that a strike called by the bargaining representative of employees is (barring certain types of strikes not involved here) "concerted activities" within the meaning of Sec- tion 7 of the Act and an activity within the scope of participating "membership in any MATHIESON CHEMICAL CORPORATION 499 labor organization ." The strike which is here involved was a union activity" which members were called upon to perform in an effort to pressure the Employer to yield to the economic demands of the employees' legal bargaining representative. It reasonably follows that any discrimination in favor of employees who ceased this union activity and against those who continued it could have had no other effect than to discourage union membership to the extent that it warned all employees, upon penalty of like treatment, that they must not in the future exercise the strike privilege of such membership . That no member of management admitted as a witness that the Respondent acted with the intent of discouraging union membership is not a critical flaw in General Counsel's proof. The Supreme Court of the United States said in Radio Officers' Union, et al., 347 U. S. 17: Both the Board and the courts have recognized that proof of certain types of discrimination satisfies the intent requirement . This recognition that specific proof of intent is unnecessary where employer conduct inherently encourages or discourages union membership is but an application of the common law rule that a man is held to intend the foreseeable consequences of his conduct. The Trial Examiner concludes and finds that both the announcement of the unilateral policy, and its application , were discriminatory and designed to discourage membership in the Unions involved, and thus were violative of Section 8 (a) (3) of the Act. It appears unnecessary here to pass upon a question which the parties, during negotiations , expressed some wish to have the Board decide-whether, per se, the discriminatory seniority policy was illegal . In passing, however, it may be well to draw the attention of both the Board and the parties to Minneapolis Star and Tribune Company, 109 NLRB 727, where the Board majority found that both the employer and the union violated the Act, not only by exercising, but also by enter- ing into a contract which permitted the union to put at the bottom of the usual seniority list an employee who declined to participate in strike activities. Since dis- crimination is the act to be guarded against, and it makes little difference to the employee whether it is the union or the employer who initiates the discrimination against him, it would appear that the rule should likewise frown upon any agreement permitting an employer to discriminate against employees who participate in a strike. It has been found above that, pursuant to the new seniority policy, the following individuals were laid off on April 9, 1954, while others of lesser seniority were retained: Robert Permar Francis Ruggerio Michael D. Eddy, Sr. Wayne O. Mayfield Herman Morris C. B. Smyth Elwood Frum Having concluded that the policy invoked was violative of the Act, the Trial Ex- aminer concludes and finds that the individuals named above were laid off discrimi- natorily, in order to discourage union membership and activity, in violation of Section 8 (a) (3) of the Act. Turning now to the no less important question as to whether the unilateral appli- cation by the Respondent of its new seniority policy and its insistence that it be included in any signed agreement constituted a refusal to bargain, within the mean- ing of Section 8 (a) (5) of the Act. In his brief, counsel for the Respondent con- tends: ". . . refusal to bargain cannot be sustained on the basis of one parties' [sic] insistence on a proposal any more than upon the other parties' rejection of it." He cites no authority for such a broad contention and the Trial Examiner knows of none . The Board has repeatedly found that a very real distinction exists between merely proposing, or urging, a point being negotiated and insisting upon it to the point of forcing the other party to accept or forego any contract (For cases in which proposals fell short of ultimate insistence , see Solar Aircraft Company, 109 NLRB 130, and United States Gypsum Company, 109 NLRB 1113. For cases in which proposals became "a condition precedent to an agreement," see I. B S. Manufacturing Company, et al., 96 NLRB 1263, at p. 1269, Pecheur Lozenge Co., Inc., 98 NLRB 496, at p. 497, and Stylecraft Furniture Company, 111 NLRB 930.) Since it has been found as a fact, in the preceding section, that the Respondent has made acceptance of its proposal "a condition precedent to an agreement," from April 2, 1954, to the time of the hearing, the Trial Examiner concludes and finds that this conduct was a clear refusal to bargain in violation of Section 8 (a) (5) of the 387644-56-col 114-33 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. It follows. and is likewise found that the Respondent violated the same section on April 9, 1954, when it unilaterally put into effect, during the course of negotia- tions and over the Unions' objections, a policy which it could- not legally insist that the Unions,agree to include in a contract. This is so, whether or not the policy was of itself. discriminatory and illegal. As to remaining issues raised by the complaint, General Counsel urges that the Respondent failed to bargain in good faith by following conduct found above to have occurred: (1) Kileen's insistence on March 15, 1954, that Radford make any further negotiating proposals through the Federal Mediation Service; (2) the Company's failure to reply to Radford's letter of March 23, which again requested a meeting; (3) Kileen's rejection on April 16 of Radford's telephonic request to meet and his instruction that any proposals be submitted in writing; and (4) the Company's letter of April 27, which effectively cut off further negotiations for nearly a year. The Trial Examiner concludes that General Counsel's contentions have merit. As to points (1); (2), and (3), it would appear that ample support of General Counsel's position is to be found in the following quotation from the decision in N. L. R. B. v. United States Cold Storage Corp., 203 F. 2d 924 (C. A. 5), and cases therein cited: Section 8 (d) of the Act defines "collective bargaining" as the "obligation of the employer and the representatives of the employees to meet at reasonable times and confer in good faith." This statutory obligation is not satisfied by merely inviting the union to submit any proposition they have to make in writing where either party seeks a personal conference. And in amore recent case, Bewley Mills, 111 NLRB 830, the Board has found sim- ilarly dilatory and evasive tactics to be violative of Section 8 (a) (5) of the Act. And as to point (4), the language of Wright's letter of April 27, 1954, could hardly have been'reasonably interpreted by Radford as other than a clear refusal to meet and' negotiate. It has been quoted in full above. In •it Wright acknowledges the request to meet, rejects the written proposals flatly, and closes with the firm declaration that management sees "nothing to be gained in a meeting." It was hardly incumbent upon the Unions to make further efforts to meet, having been twice, within a period of- 2 weeks, refused an audience.. It would appear that they pursued the appropriate course provided by the Act, and filed charges with the Board. This plain refusal' on the part of the Respondent to carry out its obligations as defined by the Act was in violation of Section 8 (a) (5) of the Act. In conclusion, it is further found that by the aforesaid conduct by the Respondent in violation of Section 8 (a) (3) and (5) of the Act, it interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, and thereby violated Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices affecting commerce, the Trial Examiner will recommend that it cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent discriminatorily laid off seven employees on April 9, 1954, and has denied reinstatement to them, and that such discrimination has been pursuant to its discriminatory seniority policy put into effect on the same date. It will be recommended that the Respondent forthwith rescind said senioriy policy and unconditionally offer the said seven employes immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to seniority and other rights and privileges. It will also be recommended that the Respondent make whole the same employees for any loss of pay they may have suffered by reason of the discrimination against them, by payment to each of them of a sum of money equal to the amount he would normally have earned from April 9, 1954, to the date of offer of reinstatement, less his net earnings during that period. The amount, of back pay due shall be computed according to Board policy set forth in F. W. Wool- worth Company, 90 NLRB 289. Payroll and other records in possession of the Re- spondent are to be made available to the Board, or its agents, to assist in such computation. MATHIESON CHEMICAL CORPORATION 501 It will be fuither recommended that the Respondent bargain in good faith with the Unions here involved, upon request, and that it not insist, as a condition of executing any agreements, upon the discriminatory seniority policy herein described. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 152, AFL; United Brother- hood of Carpenters and Joiners of America, Local 1369, AFL; and International Brotherhood of Electrical Workers, Local 425, AFL, are labor organizations within the meaning of Section 2 (5) of the Act. 2. Since October 6, 1952, said labor organization of Pipe Fitters has been and now is the exclusive representative of all employees in the following appropriate units for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act: All pipe fitters and helpers, excluding all other employees and supervisors All welders and helpers, excluding all other employees and supervisors. All instru- ment repairmen and helpers, excluding all other employees and supervisors. 3. Since October 6, 1952, said labor organization of Carpenters has been and now is the exclusive representative of all employees in the following appropriate units for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act: All machinists, bench mechanics and helpers, excluding all other employees and supervisors. All millwrights and helpers, excluding all other employees and super-' visors. , And since December 9, 1952, said labor organization has similarly been the ex- clusive bargaining representative of all employees in the following units: All material fabricators and helpers, excluding all other employees and supervisors. All carpenters and helpers, excluding all other employees and supervisors. 4. Since October 6, 1952, said labor organization of Electrical Workers has been and now is the exclusive representative of all employees in the following ap- propriate unit for the purposes of collective bargaining within the meaning of Section 9 (a), of the Act: All electricians and helpers, excluding all other employees and supervisors. 5. By refusing on and after March 16, 1954, to bargain collectively with the afore- said labor organizations as the exclusive representative of the employees in the ap- propriate units the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 6. By discriminating in regard to the hire and tenure of employment , and condi- tions of employment, of employees Robert Permar, Michael D. Eddy, Sr., Herman Morris, Francis Ruggerio, Wayne O. Mayfield, C. B. Smyth, and Elwood Frum, there- by discouraging membership in the aforesaid labor organizations, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 7. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication ] APPENDIX NOTICE -TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Re- lations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada , Local 152, AFL; United Brotherhood of Carpenters and Joiners of 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD America, Local 1369, AFL; International Brotherhood of -Electrical Workers, Local 425, AFL; or in any other labor organization of our employees, by dis- charging, laying off, or refusing to reinstate any of our employees or by dis- criminating in any other manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT insist, as a condition of executing any agreements with the above- named labor organizations, that they include provisions granting discriminatory seniority privileges to employees who did not exercise, or ceased exercising, their right under the Act to engage in concerted activities, during the February-March 1954 strike. WE WILL NOT, in any manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all 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 bargain collectively, upon request, with the three above-named labor organizations, as the exclusive representatives of employees in the respec- tive appropriate units set forth below, with respect to grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment, and, if an understanding is reached, embody such understanding in signed agree- ments.' All pipe fitters and helpers, excluding all other employees and supervisors. All welders and helpers, excluding all other employees and supervisors. All instrument repairmen and helpers, excluding all other employees and supervisors. All machinists, bench mechanics and helpers, excluding all other em- ployees and supervisors. All millwrights and helpers, excluding all other employees and supervisors. All material fabricators and helpers, exclud- ing all other employees and supervisors. All carpenters and helpers, ex- cluding all other employees and supervisors. All electricians and helpers, excluding all other employees and super- visors. WE WILL offer the following named employees immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them: Robert Permar Francis Ruggerio Michael D. Eddy, Sr. Wayne O. Mayfield Herman Morris C. B. Smyth Elwood Frum WE WILL rescind our policy of depriving participants in the strike of February- March 1954 of the seniority which they would have had but for such policy. All our employees are free to become or remain members of the above-named or any other labor organization. We will not discriminate in regard to hire or tenure of employment against any employees because of membership in or activity, on behalf of any such labor organization. OLIN MATHIESON CHEMICAL CORPORATION, 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.