United Mine Workers of America

220 DECISIONS OF NATIONAL LABOR lELATIONS BOARD There remains for consideration the Employer's contention that driver-salesmen are supervisors of their helpers. It appears that each driver-salesman has a helper. The record is conflicting as to just how the helpers are selected and disciplined. It is clear, however, that the relationship between the driver- salesman and his helper is akin to that of a craftsman and his helper. We therefore conclude that the driver-salesmen are not, by reason of their relationship with their helpers, supervisors as defined in the Act.' We find that the following employees of the Employer constitute a -unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act: All driver-salesmen and helpers at the Employer's warehouse at Caguas, Puerto Rico, excluding all other employees, guards, and super- visors as defined in the Act. [Text of Direction of Election omitted from publication.] MEMBER RODGERS took no part in the consideration .of the above Decision and Direction of Election. 8 See Wells Dairies Cooperative, 109 NLRB 1450; General Beverages Company, 85 NLRB 696 ; Atlanta Coca-Cola Bottling Company, 83 NLRB 187. United Mine Workers of America , District 50, and United Mine Workers of America, Local Union No. 12915 and West Virginia Pulp & Paper Co. Case No. 2-CB-1788. June 19,1957 DECISION AND ORDER On November 29, 1956, "Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding finding that the Respondents had engaged in and were engaging in certain unfair labor practices in violation of Section 8 (b) (3) of the Act, and recom- mending that they cease and desist therefrom and take certain af- firmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondents filed exceptions to the Intermediate Report together with supporting argument, and the Charging Party filed a brief in support of the Intermediate Report. 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 Murdock, Rodgers, and Bean]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, and the entire record in 118 NLRB No. 28. UNITED MINE WORKERS OF AMERICA 221 the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' ORDER Upon the basis of the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondents, United Mine Workers of America, District 50, and United Mine Work- ers of America, Local Union No. 12915, and their officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Refusing to bargain collectively with West Virginia Pulp & Paper Co., or any other employer, by failing to notify the Federal Mediation and Conciliation Service and any appropriate State agency of the existence of a dispute within the meaning of Section 8 (d) (3) of the Act, within 30 days after service of notice upon West Virginia Pulp & Paper Co., or any other employer, that the Respondents seek or desire modification of a collective-bargaining contract; provided, however, that no such notice under Section 8 (d) (3) shall be required if an agreement is reached within 30 days following service of a notice that. modification of a bargaining contract is sought or desired. (b) Engaging in, or causing or instructing the employees of West Virginia Pulp & Paper Co., or any other employer, to engage '111, It strike, for the purpose of modifying or terminating a collective- bargaining contract, without first having complied with the require- ments of Section 8 (d) of the Act. 2. Take the following affirmative. action which the Board finds will effectuate the policies of the Act : (a) Post at the business offices of United Mine Workers of America, District 50, and of United Mine Workers of America, Local Union No. 12915, copies of the notice attached hereto marked "Appendix A." 2 Copies of the said notice, to be furnished by the Regional Di- rector for the Second Region, shall, after being duly signed by official representatives of the Respondents, be posted by the Respondents im- mediately upon receipt thereof and be maintained by them for a period of sixty (60) days thereafter, in conspicuous places, including all places where notices to members of the Respondent Unions are cus- tomarily posted. Reasonable steps shall be taken by the Respondents 1 Retail Clerka, etc. (d. C. Penney), 109 NLRB 754 ; Local No. 156, United Packingho'u.' 1Porkeis , etc. (Du Quoin Packing Company), 117 NLRB 670; see also N. L. R. It, v. Lion. Oil Co., 352 U. S. 282 . The Intermediate Report , issued on November 29, 1956, had proceeded on the assumption that the strike was still current, However, we note in the briefs of the parties that the strike was terminated with the execution of anew contract on November 24, 1956. This does not materially affect our conclusions and remedial order in the case. Ibid. 2In 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 a United States Court of Appeals , Enforcing an Order." 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to insure that said notices are not altered, defaced, or covered by any other material. (b) Furnish to the said Regional Director, duly signed by Respond- ents' representatives as set forth in (a) above, copies of the said notice, marked "Appendix A" for posting, the Company willing, for 60 consecutive days, at places in the Company's plant in Mechanicville, New York, where notices to employees are customarily posted. (c) Notify the Regional Director, in writing, within ten (10) days from the date of this Decision and Order, what steps they have taken to comply herewith. APPENDIX A NOTICE TO ALL MEMBERS OF UNITED MINE WORKERS OF AMERICA, DISTRICT 50, AND UNITED MINE WORKERS OF AMERICA, LOCAL UNION No. 12915, AND TO ALL EMPLOYEES OF WEST VIRGINIA PULP & PAPER COMPANY AT ITS PLANT IN MECHANICVILLE, NEW YORK Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, We hereby give notice that : WE WILL NOT refuse to bargain collectively with West Virginia Pulp & Paper Co., or any other employer, by failing to notify the Federal Mediation and Conciliation Service and any appro- priate State agency of the existence of a dispute within the mean- ing of Section 8 (d) (3) of the Act, within 30 days after service of notice upon West Virginia Pulp & Paper Co., or any other employer, that we seek or desire modification of a collective- bargaining contract; provided, however, that no such notice under Section 8 (d) (3) shall be required if an agreement is reached within 30 days following service of a notice that modifi- cation of a bargaining contract is sought or desired. WE WILL NOT engage in, or cause or instruct the employees of West Virginia Pulp & Paper Co., or any other employer, to engage in, a strike, without first having complied with the requirements of Section 8 (d) of the Act. UNITED MINE WORKERS OF AMERICA, DISTRICT 50, Dated------------ ---- By------------------------------------- (Representative ) ( Title) and UNITED MINE WORKERS OF AMERICA, LOCAL UNION No. 12915, 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. UNITED MINE WORKERS OF AMERICA 223 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This proceeding, with all parties represented, was heard by the Trial Examiner in New York City, October 22, 1956, on the complaint of the General Counsel (issued on a charge filed by the Employer) and the answer of Respondent Unions. The only issue is whether the Respondent Unions engaged in a strike for a contract change without complying with the procedure of Section 8 (d) of the National Labor Relations Act, thereby bringing them afoul of their bargaining obligation under Section 8 (b) (3), insofar as such obligation assimilates the requirements of Section 8 W. All other issues are conceded: There is no question concerning the Board's juris- diction. The Employer, a nationwide manufacturer of pulp and paper, at the affected plant in Mechanicville, New York, receives materials and ships products in interstate commerce in amounts exceeding $1,000,000 per year for each category. Nor is there any issue concerning the status of Respondent Unions as the exclusive bargain- ing representative of the employees in the agreed unit (a comprehensive one embrac- ing all hourly paid employees in the Mechanicville plant). This brings us at once to the merits, the findings on which are based on facts not in dispute. FINDINGS OF FACT 1. THE UNFAIR LABOR PRACTICE A. The contract and the modification clause The Employer and the Respondent Unions entered into a contract on May 27, 1955, covering the hourly paid employees at the Mechanicville plant. By its terms, it was to terminate September 27, 1956, but Article V, paragraph 57 permitted an earlier termination on certain conditions. Under it, either party could request a modification of the wage rate by serving upon the other a 60-day notice to that effect no earlier than May 28, 1956. The clause also provided that on or before the 50th day of the 60-day period, if no agreement was reached, either party could notify the other of its intention to regard the 60-day notice as one of termination, and in that event, the contract would "terminate at the end of the said sixty day period," unless agreement was interveningly reached or the server of the original notice withdrew its modification request. B. The invocation of the clause and the ensuing strike Pursuant to the foregoing provision, Respondents, on May 28, 1956, served written notice on the Employer that they desired a change in the wage rate. Bargaining conferences between representatives of the Employer and of the Respondents there- upon ensued, which have been held to the present day. But meanwhile, the following occurred: On July 9, or 42 days after service of the modification notice, no agreement having been reached, Respondents, for the first time, notified the Federal and State media- tion authorities of the dispute. On July 16, pursuant to the "50th day" portion of the modification clause, Respondents sent the Employer "a ten day notice of termina- tion of the existing labor management Agreement." Meanwhile a strike had been announced to commence the morning of July 27, 1956. As that deadline approached, Ray Stocker, personnel chief and assistant manager at the Mechanicville plant, told Robert R. Wright, field representative of Respondent District 50, that a strike on July 27 would be illegally premature. Wright replied that he had been told the same thing by a Federal conciliator but that he disagreed. On July 26, Stocker again met with the representatives of the Respondents. Some mention should here be made of the composition of Respondents' representation at the meetings. It consisted of M. R. Patterson and Robert R. Wright, regional di- rector and filed representative, respectively, of Respondent District 50, and a committee, called the Union Committee, composed of people in the Respondent Local Union under the leadership of the president of the Local. At the July 26 meeting, Respondents were additionally represented by Frank O' Brien, the special designee of the president of District 50 to handle the matter. He acted as the main spokesman for the Respondents at that meeting. Stocker, at the July 26 meeting, proposed that the date for the expiration of the contract be extended to August 15, with negotiations to resume July 30. The con- ference ended with an assurance from O'Brien that the representatives of District 50 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the Union Committee would recommend adoption of Stocker's proposal to the membership of the Local Union at two meetings scheduled for that evening (to accommodate different shifts). At meetings of the membership held 7:30 and 11 that night, Respondents' repre- sentatives made the recommendation as promised. But something went awry. Earlier in the day, after receiving the assurance from O'Brien, the Employer, in order to put the plant in readiness again for operation, posted a notice to its supervisors, announcing the Union Committee's proposed recommendation to the membership and stating that the plant would operate the following morning. The notice came to the attention of the working force before the first of the two scheduled meetings. At each of the meetings which followed, the membership shouted down the Respond- ents' representatives with accusations of a sell out and questions of "who gave the authority to the Company to post a notice that the strike was off." In what Regional Director Patterson termed as a "pretty rough meeting," the membership voted the recommendation down. That same night, over the telephone, first Wright, then Patterson, describing that session to Stocker as a "tough meeting," announced that the strike was on for the following morning. The strike began the morning of July 27, and has been in progress ever since. Although the strike as called was contrary to the recommendation of the repre- sentatives of District 50 and of the Union Committee, neither Respondent, at any time, repudiated the action of the membership, nor have they ever indicated that the strike was not authorized. There is no question but Respondents have been conducting the strike ever since. However while all this is going on, representatives of the Employer and Re- spondents have continued to hold bargaining sessions. Beginning with the date of the strike, these sessions have also been attended by the representatives of the Federal and State mediation authorities.' There is no suggestion that from the time 60-day notice was served, either before or after the strike, the representatives of Respondents have ever been remiss in making an honest effort to explore all possibilities for resolution of the dispute on a mutually satisfactory basis. C. Legal result The statutory bargaining obligation of parties to a collective-.bargaining agreement, employer and union alike, encompasses conformity with the procedure of Section 8 (d) of the Act. The procedure thus prescribed is superimposed by operation of law as a condition to the valid calling of a strike to terminate or modify a bargaining agreement, whatever else the agreement might itself provide. A party seeking to terminate or modify an existing contract, may not resort to a strike or a lockout for that purpose, unless, as stated in Section 8 (d), that party: (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, . . ; (2) offers to meet and confer with the other party for the purpose of negoti- ating a new contract or a contract containing the proposed modification; (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 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, which- ever occurs later: It is on item (3) that Respondents faltered. Item (3) requires that notification of the dispute be given to the Federal and State mediation authorities within 30 days after service of the 60-day notice to the opposite party.2 The 60-day notice having i Before the strike, the Employer and Respondents had a total of 10 conferences. Six of them occurred after Respondents had already notified the Federal and State mediation au- thorities of the dispute. Yet none of them was attended by any mediation or conciliation representative, Federal or State. However, the latter have been attending the meetings which followed the outbreak of the strike. 3 Respondents assert that "it is not clear when such notice is to be filed ; 1. e., within thirty (30) days from notice given under Section 8 (d) (1) or within thirty (30) days after such `notice of the existence of a dispute,' or more clearly within thirty (30) days after the I UNITED MINE WORKERS OF AMERICA 225 .been served on the Employer on May 28, the 30-day period thereafter for notifying the mediation authorities expired June 27. Respondents did not do so until July 9, or 12 days too late.3 It follows that Respondents notification of the mediation authorities was not in conformity with the requirements of subdivision (3) of Section 8 (d) of the Act. Does Respondents' default in the third item of Section 8 (d) invalidate the strike? No, contend Respondents, and for two reasons: First, that Section 8 (d) does not apply to an attempted modification within the term of a contract but only to a strike for a new contract at the terminal stage of the old; and secondly, even if Section 8 (d) applied to an attempted modification during the term of the contract, noncompli- ance with the provision for notification of the mediation authorities, while perhaps a violation of their bargaining obligation under Section 8 (b) (3), does not in- validate the strike, as long as the notifier has honored the other requirements of Section 8 (d) (i. e., has given the 60-day notice to the opposite party and has negotiated in good faith during all that period before resorting to strike action). Each of its contentions, as Respondents recognizes, is opposed to established Board doctrine. The first contention relies on the view expressed by Board Member Mur- dock in United Packinghouse Workers (Wilson & Co. Inc.), 89 NLRB 310, 319 and Lion Oil Company, 109 NLRB 680, 693, that Section 8 (d) "applies only to the period around expiration date of a contract and does not apply earlier during the term of a contract," a view which he reaffirmed in his dissent in Retail Clerks, etc. (J. C. Penney), 109 NLRB 754 at 761. But the Board never adopted that view and expressly rejected it in Lion Oil Company, 109 NLRB 680. It there held that Section 8 (d) applies "not only when a party desires to terminate but equally when a party seeks to modify a contract." And it is that view which is binding on the Examiner. Respondents suggest that the Lion Oil Company case, now pending before the United States Supreme Court on certiorari, was argued about a month ago, and decision should be reserved until the Supreme Court has spoken. Even if involved in the case before the Supreme Court were the contention which Respondents here raise, it would not be a ground for the Examiner to hold up decision, where there is no uncertainty concerning the rule which is binding upon him under prevailing Board doctrine. But the contention which Respondents advance is not a live issue (apart from the fact that they too rely on a "termination," as shown by their notice served on the "50th day"), and is not before the Supreme Court in the Lion Oil case. The Board, which is petitioner there (N. L. R. B. v. Lion Oil Co., 77 S. Ct. 330) and the employer-respondent, are both proceeding upon the hypothesis of the full appli- cability of Section 8 (d) to a proposed modification of a contract during its life. The only divergence is in the minimum waiting period prescribed under (4) of Section 8 (d) before valid strike action can be taken.4 The basic proposition that Section 8 (d) applies to a proposed modification sought during the life of a contract even prior to its terminal stage will thus be unaffected by any decision of the Supreme Court in the Lion Oil case, and stands as the governing rule. The contention of Respondents, advanced in opposition to that rule, is accordingly rejected. The second contention of Respondents, that compliance with the provision for for notification of the mediation authorities as prescribed by (3) of Section 8 (d) dispute arose." It would seem reasonably plain that the term "such notice," as used throughout Section 8 (d), refers to the 60 day notice served on the opposite party, and that what item (3) requires is that "within 30 days after such notice," the party who has given it also "notif[y] the Federal [turd State mediation authorities] . . . of the existence of a dispute." At any rate, as Respondents recognise, that is how the Board has inter- preted the requirement of Section 8 (d) (3) for notification to the mediation authorities. See Retail Clerks, etc. (J. C. Penney), 109 NLRB 734. Any contention to the contrary is thus water, whatever its quality, which is over the dam. 3 Possibly 14 days, since the notification, mailed July 9, reached the authorities July 11. 4 The Board held that 60 days after service of the notice of proposed modification is adequate, where it is given pursuant to a clause in the contract permitting reopening for that purpose. .10.9 NLRB at 6S3-84. The Eighth Circuit Court of Appeals disagreed. Ad- hering to its earlier decision in Wilson d Co. v. N. L. it. B.. 210 F. 2d 325, cert. denied 348 U. S. 822, that the notifier must wait until the end of the originally stipulated terns of the contract. that court held the situation was no different when the notifier acts under a clause in the contract permitting reopening for purposes of modification, and there too lie must wait out the entire stipulated term of the eonlr.iet. Lion Lit Co. v. N. L. it. It.. 221 F. 2d 231 (C. A. 8). It is that decision which the Board, in invoking certiorari (76 S. Ct.. 471), is seeking to have reversed. 450553--5 S-vol. 118-16 r 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is not a condition to a valid strike, was considered by the Board in Retail Clerks, etc. (I. C. Penney Co.), 109 NLRB 754, and explicitly rejected. There, after noting that the provision in question was "an integral part of the scheme evolved by Congress for achieving a higher degree of stability in collective bargaining," the Board stated: Section 8 (d), by its plain language and intent, made it unlawful for the Respondent Union to strike . . . without first serving notice of the dispute with the Company upon the Federal Mediation Service. [Emphasis supplied.] 5 The variant here is that Respondents struck, not before giving any but only before giving timely notification to the mediation authorities. But unless the 30-day time limit set by Section 8 (d) (3) for that purpose is to be regarded as a nullity, it must follow that the legal consequences of a tardy notification are no better than .an omitted one-in the circumstances of this case at least. The strike on July 27, assuming it to have occurred following compliance with the 60-day waiting period prescribed by Section 8 (d) (4), nevertheless took place after an interval of sub- stantially less than the minimum of 30 days which would have elapsed had Respondents notification been timely.6 Since Respondents chose not to defer strike action long enough after their belated notification to the authorities to afford the latter the minimum 30 days they would have had if the notification had been given within 30 days after service of the modification notice, we do not have the question of whether, if Respondents had so waited, they would have overcome the untimeliness either in point of law or on a discretionary basis to warrant mitigation of the normal remedy. Whatever appeal there might have been in the argument that one who has thus forborne for 30 days after service of a belated notice has fulfilled the legislative purpose as adequately as one who has given his in time,? Respondents have taken that factor out of play here. If too late had a chance at all, it was spent when backed up with too little. It thus became no better than never. The Employer, who filed the charge on which the complaint issued, argues for a specific finding that by striking in nonconformity with Section 8 (d) (3) of the Act, the Unions also violated their contract with the Employer. The request, it is feared, misconceives the nature of this proceeding before the Board. It may therefore not be amiss to allude briefly to certain fundamentals. The National Labor Relations Act, as embodied in Title I of. the Labor Management Relations Act, is concerned with unfair labor practices as defined in Section 8. When the Agency prosecutes an infraction of an unfair labor practice provision, it acts only in vindication of the public interest. "The proceeding is not, it cannot be made, a private one to enforce a private right. It is a public procedure, looking only to public ends." Agwilines, Inc. v. N. L. R. B., 87 F. 2d 146, 150 (C. A. 5). "The Board . does not exist for the `adjudication of private rights'; it `acts in a public capacity to give effect to the declared public policy of the Act. . " Phelps Dodge Inc. v. N. L. R. B., 313 U. S. 177, 193. In recognition of this, only the Board can prosecute the in- fraction and seek enforcement of the remedy. Amalgamated Utility Workers V. Consolidated Edison Co., 309 U. S. 261, 269-270; and by that token the obligations s See, in accord , International Union of Operating Engineers v. Dalalem Construction Co., 193 F. 2d 470 (C. A. 6). 6 The Employer suggests that apart from the notice to the mediation authorities, Re- spondents could not validly have struck on July 27th because the G0 -day period from A lay 28, the date of service of the original notice , did not expire, so it claims, until the end of July 27. The theory of the General Counsel, stated in Employer counsel 's presence at the outset and the end of the hearing , is that liability was predicated only on the failure to comply with Section 8 ( d) (3). Laying aside whether this newly raised issue is open, the disposition of the case on the basis of the theory on which it was prosecuted and tried, makes it unnecessary to consider the point raised by the Employer . But if it were so necessary , it should be observed that the Employer in computing the 60 days has excluded May 28, the date the notice was served , and has begun its computation with the day following. However, the Board has held that in such a computation , the date of service of the notice is included and counted as the first of the requisite 60 days. The Ohio Oil Co., 91 NLRB 759. Under that standard, the 60th day ended July 26, the day before the strike. 7 Bat. see, contra . International Union of Operating Engineers v. Dahlem Construction Co., 193 F. 2d 470 , 473 (C. A. 6). UNITED MINE WORKERS OF AMERICA 227 which the Act imposes run to it as fiduciary of the public interest , not to any private party. N. L. R. B. v. Killoren, 122 F. 2d 609, 612 (C. A. 8) cert. denied 314 U. S. 696; Nathanson v. N. L. R. B., 344 U. S. 25, 26 The subject of inquiry in respect to the unfair labor practice here is whether Respondents struck in conformity with the procedure of Section 8 (d) of the statute, regardless of what else the contract forbade or permitted . Whether the public obligation thus imposed by the statute was, as the Employer suggests, so assimilated into the contract as additionally to confer a private right in the contracting parties each against the other, is outside the domain of our inquiry, and is more appropriately to be addressed to a tribunal concerned with the "adjudication of private rights." Phelps Dodge case supra.8 The request for specific consideration and a finding upon the matter thus proposed is accordingly rejected , as being outside the issue here. II. THE REMEDY The violation here found, as all agree, does not go to the acceptance or rejection by Respondents of the bargaining principle, for no one has challenged the sincerity of their efforts to work out a solution of the dispute with the Employer . Hence, a broad order directing them to abide by principles of good-faith bargaining, which they have not offended, would here be neither necessary nor warranted . N. L. R. B. v. Express Publishing Company, 312 U. S. 426. The transgression lay in the failure to follow a procedure which Congress has laid down as preliminary to valid strike action to alter an existing contract. It will be to that to which the recommendations will be specifically directed. As in the Retail Clerks, etc. (J . C. Penney Company ) case, 109 NLRB 754, it will be recommended that Respondents cease and desist from resorting to such strike action, where there has not been prior compliance with Section 8 (d), specifically , item (3), because that was the one omitted, and , in general Section 8 (d) as a whole , because of the "integral" role that (3) plays with the remainder. The recommendation above necessarily embraces the strike of July 27, which is still current. To except the existing strike from the scope of the remedy, as Re- spondents suggest, would be, as the Board put it in the Retail Clerks case, to "permit the very act which constitued the Respondent Union [ s'] misconduct to go unremedied." In urging that the present strike be excluded from the scope of the remedy, Re- spondents state that to include it "would disrupt present negotiations and give birth to new problems as well as personal antagonisms." This assumes that remedies for statutory infractions must always be painless . Long experience under this Act demonstrates that more often it is the reverse . The remedies frequently entail im- mediate drastic adjustment and even upheavals which must be endured in favor of the long-range considerations underlying the legislation . Examples which imme- diately come to mind are those which, over the years , have been invoked to remedy infractions by the other party in the labor relations picture-the employer. For instance, a reinstatement order to remedy discriminatory severances of employees frequently entails dismissal of persons who have innocently taken the jobs of the discriminatees; 9 an order directing an employer, remedially , to bargain with a majority representative whose bargaining rights it had dishonored, but which has since lost its majority, frequently involves tying the existing employees to a repre- sentative, which, for all that appears, they now would seem no longer to want; 10 and an order directing an employer to cease dealing with a representative it has unlawfully assisted or dominated involves denying, sometimes temporarily and some- times permanently , the employees representation by the offending organization, 8 See e. g. International Union of Operating Engineers v. Dalalem Construction Co., .supra, footnote 7, where the court, in a private suit between contracting parties, laid down the converse proposition-that whether there has been compliance with Section 8 (d) of the statute is not controlling on whether there has been compliance with the contract. °Kansas Milling Company, 80 NLRB 925 , 929, enfd. as modified 185 F . 2d 413 (C. A. 10) Brown and Root, 99 NLRB 1031 , 1046 enfd . as modified 203 F . 2d 139 (C. A. 8). " Ray Brooks v. N. L. R . B., 348 U. S . 96: Franks Bros. v. N. L. R. B ., 321 U. S. 702 ; Great Southern Trucking Co . v. N. L. R. B., 130 F. 2d 984, cert. denied 322 U. S. 729. 228 DECISIONS* OF NATIONAL LABOR RELATIONS BOARD even thought they may have obtained benefits through it," and have become attached and devoted to it.12 All of the above is strong medicine, but it is medicine nevertheless, prescribed to insure the soundness of our body politic under the policy evolved and laid down by the legislature. Respondents' misfortune is that after falling down on the requirement that their notice to the mediation authorities be timely, they forewent the opportunity of building up even a colorable equity to the extent of forebearing at least long enough to give the mediation authorities, as a minimum, as much time to try to avert the strike as the latter would have had if Respondents' notification had been timely. Instead, they compounded their original error by striking in the face of warnings first by a Federal conciliator and then by the Employer; and after its outbreak, they continued it in the face of a swift wire.from the Employer protesting its illegality and demanding that they take immediate measures to repudiate and stop it. Re- spondents cannot, of course, take shelter in the fact that they recommended post- ponement of the strike to the membership and were voted down, for it puts them in the following dilemma: If they failed to advise the membership of the illegality of such action, they dissipated their very standing to seek amelioration; on the other hand, if the membership voted them down in the face of Respondents' advice that the strike would be illegal, and, as would appear, Respondents did not exert the leadership to repudiate and terminate the illegal step, then they have created the very vacuum which has compelled the Government to move in. As a final consideration: Just as the Board, when it remedies offenses by an em- ployer, does not permit the latter to retain any advantage it may have derived from an illegal course, so here too, such disadvantage as Respondents claim they will incur by having their demands unsupported by the present strike, necessarily flows. from the same principle, for the strike support to which they would cling was illegally invoked. The requirement that Respondents not strike for a contract change except in conformity with Section 8 (d) will therefore apply to the strike which is current as well as to the future. Since the offense occurred only in the course of the Respondents' dealing with the Employer at its Mechanicville plant, and, so far as appears, there is no record of such an offense on their part, anywhere before, there would appear to be neither the need nor warrant for extending the injunctive requirement beyond the situs of the controversy. Cf. N. L. R. B. v. Ford Motor Co., 119 F. 2d 326, 330-331 (C. A. 5). If anything, a pervasive injunction extending beyond the area of the dispute would lead only to diffusion of focus and tend to blur the outline of the remedy patterned to the controversy in issue. Upon the findings and the record, there are hereby made the following: CONCLUSIONS OF LAW 1. The Respondents are labor organizations within the meaning of the Act.. 2. The Respondents at all times material herein, have been and are the exclusive collective-bargaining representative, within the meaning of Section 9 (a) of the Act, of the following employees of the Employer at its plant in Mechanicville, New York: All hourly paid production, maintenance, and shipping employees, including hourly paid laboratory employees and hourly paid plant clerks, excluding executive, super- visory clerical, office, and laboratory employees on salary. 3. By striking to effectuate a change in contract terms despite failure to notify the Federal and State mediation authorities within 30 days after service of their 60-day modification notice, as prescribed by Section 8 (d), Respondents violated their duty to bargain collectively within the meaning of Section 8 (b) (3) of the Act, and thereby engaged and are engaging in an unfair labor practice within the meaning of said section of the Act. 4. The said unfair labor practice affects commerce within the meaning of the Act. [Recommendations omitted from publication.] Ar L. R. B. v. Colorado Fuel d- Iron Co., 121 F. 2d 1.65. 171-172 (C. A. 10) ; Corning Glass Works v. N. I'. R. B., 118 F. 2(1625,629 (C. A. 2). 19 Red A rrow Freight Line, 180 F. 2d 585 (C. A. 5) enfg. 77 NLRB 859: A'. L. R. B. v. Newport News Shipnilding cE Dry Dock Co., 308 U. S. 241., 247; Hershey Metal Products Company, 76 NLRB 695.