Cerro de Pasco Corp.

936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not show that the duties of any die setter has changed since the Board's earlier determination. The die setters are listed in the Employer's organizational chart as supervisors and they are so described in the Employer's position description of the die setter categories. Al- though there was testimony that some die setters spend a portion of their time doing production work, there was no testimony that any die setter did not perform supervisory functions; and it appears that the performance of such production work by die setters is incidental to the performance of their supervisory duties. In these circumstances, we shall exclude all die setters from the unit. The following employees constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act : All production employees and maintenance employees I in plants 1, 2, 3, 4, and 5 of the Employer in Two Rivers and Manitowoc, Wisconsin including clerical employees in the production department office, but excluding executive, administrative and professional em- ployees, general and factory office employees, die (setters, machine shop employees, pipe fitters, sheet metal workers, electricians, and pattern- makers, their helpers and apprentices, guards, watchmen, and super- visors as defined in the Act." [Text of Direction of Election omitted from publication.] 7 This category includes window washers , janitors, and similar classifications s The unit found appropriate conforms to that requested in the petition , as amended, and is the unit for which the Employer and Intervenor have bargained since 1942 Lewin-Mathes Company, Division of Cerro de Pasco Corpora- tion and United Independent Electrical Workers of America. Case No. 14-CA-1917. March 4, 1960 DECISION AND ORDER On April 17, 1959, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that it be dismissed in its entirety, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the General Counsel filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed exceptions to the Intermediate report and a brief in support of its exceptions to the Trial Examiner's Intermediate Report. The Board has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, 126 NLRB No. 105. LEWIN-MATHES COMPANY, ETC. 937 the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the General Counsel. The relevant findings of fact made by the Trial Examiner, but not his conclusions or recom- mendations are, as indicated below, hereby adopted. 1. The Trial Examiner found that the Respondent did not bargain in bad faith with the Union in violation of Section 8(a) (5) of the Act. We do not agree. On December 2, 1957, following an election, the Board certified the Union as the exclusive bargaining representative of "all maintenance electricians at Respondent's Monsanto, Illinois plant, including Class `A,' Class `B,' and other job classes." In that representation proceed- ing, the Respondent vigorously opposed the severance of this electrical maintenance unit from the established production and maintenance unit which for years has been represented by United Steelworkers. After its certification, the Union initiated contract negotiations with the Respondent. An examination of the record herein discloses that throughout these discussions the Respondent approached the bargain- ing table without a genuine desire to reach agreement except, perhaps, on a basis which would subvert the Union's bargaining status. Thus, in its original contract proposals, the Union submitted a recognition clause which was coextensive with the Board certification. The Re- spondent, however, insisted on its own proposed recognition clause which varied from the unit description in the certification in that it recognized the Union as the representative only of employees "clas- sified" as maintenance electricians rather than of employees perform- ing electrical maintenance work which is implicit in the certification. The Respondent's purpose for thus narrowing the Union's representa- tive status is revealed by another provision in the Respondent's pro- posed recognition clause wherein the Respondent reserved to itself the right to "assign[ing] work normally done by the employees in the unit to employees normally employed outside this bargaining unit...." 1 The Union objected to these clauses because they under- mined its bargaining status and could serve as a convenient vehicle for destroying the certified unit. Obviously, there was justification for such apprehension. Although the Respondent ultimately agreed to accept the Union's certified unit description, it nevertheless ada- mantly insisted on retaining this right to assign electrical mainte- nance work to employees outside the unit and this position, as the Trial Examiner found, constituted a continuing stumbling block to agreement. Consistent with its foregoing position, the Respondent also de- manded a management prerogative clause which recognized its abso- lute right to assign work of maintenance electricians to employees 1 This provision also reserved to the Respondent the right to subcontract "work of any kind." 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD outside the certified unit. Because this clause also undercut its rep- resentative status, the Union opposed it. It is clear that acceptance of this clause, as well as the recognition clauses discussed above, would completely remove the question of work assignments from the grievance procedure and would leave the Union in the impotent posi- tion of witnessing work "normally" performed by members of the unit being given to employees "outside" the unit. As the Trial Examiner found, the Respondent's insistence on the management clause with respect to the absolute right to assign work was an addi- tional deterrent to the parties' reaching an agreement.' Further evidence of the Respondent's bad-faith bargaining is re- flected in its persistent rejection during negotiations of the Union's requests for a work jurisdiction provision in the contract which would define the extent and scope of the work of members in the unit. Here, again, the Respondent's insistence on the absolute right to assign electrical maintenance work to any employees it chose prevented con- sideration of a work jurisdiction clause, much less agreement. Indeed, according to the undisputed testimony of Biggs, president of the Union, referred to in the Intermediate Report, the Respondent's president, Lewin, at the April 7, 1958, meeting, reiterated the Re- spondent's position that it was not going to get into any jurisdictional problems and that, unless the Union accepted its proposed manage- ment and recognition clauses, it was a waste of time to continue negotiations and invited strike action by the Union. Other evidence that the Respondent was determined not to negoti- ate a contract with the Union is indicated in its refusal to discuss wages and the duration of the contract with the Union. It is true that the Union originally consented to defer consideration of these two subjects while other matters were being discussed. However, when no agreement could be reached on such matters principally because of the Respondent's uncompromising insistence on its right to assign work outside the unit,' the Union could not persuade the Respondent to discuss wages and contract duration. In effect, the Respondent thereby made acceptance of its work assignment pro- posal a condition of bargaining on other subjects. Plainly, this is not good-faithbargaining contemplated by the Act. Moreover, during the strike which the Union called in protest to the Respondent's bad-faith bargaining, the Respondent unilaterally increased the basic hourly wage rate for maintenance electricians to $2.521/2 which was a rate provided in the United Steelworkers' contract and which, early 2 The extent to which the Respondent insisted on its management prerogative is indi- cated by its demand that it have the exclusive right to lay off any employee for a period of 5 days without its action even being subject to the grievance procedure. 8 The Respondent and the Union had little difficulty in coming to agreement with re- spect to hours of work, workweek, vacations, holidays, and safety precautions . However, such agreement reflected existing conditions of employment. LEWIN-MATHES COMPANY, ETC. 939 in the contract negotiations, the Union had proposed as a basis for discussion and the Respondent had rejected. It is settled law that during a strike a party's bargaining obligation is not suspended, and an employer may not disregard the employees' bargaining representa- tive and take unilateral action, as was done here. Also revealing of the Respondent's bad-faith bargaining and an intent to eliminate the Union as a bargaining force in the plant is an incident involving Garrett, an employee in the Steelworkers' unit. While the strike was in progress, the Respondent's plant engineer, ,Silverstein, interviewed Garrett in the presence of Lazem'by, the United Steelworkers' president, and urged him to transfer into the _maintenance electricians' unit and replace a striker. Apparently, to induce Garret to accept the job, Lazemby told Garrett that there was going to be a Board election in December 4 and that they " were going to try to draw the men in the electrical unit back into the Steelwork- ers" unit. The Respondent's plant manager did not contradict Laz- ,emby or otherwise disavow that such was also the Respondent's purpose .5 Lastly, the Respondent prevented agreement by interposing its final stumbling block when it told the Union that it would not sign any contract which did not accord the strike replacements superseniority over the strikers. Such a condition was clearly in derogation of the rights of unfair labor practice strikers which status, as indicated below, the strikers enjoyed. In view of the foregoing, and upon the entire record in the case, we find that the Respondent did not bargain in good faith with the Union as the duly certified representative of the Respondent's em- ployees in an appropriate unit. Instead, we find, the Respondent approached the bargaining table with a fixed determination to avoid agreement unless the Union relinquished a significant portion of its right to bargain as such exclusive statutory representative. This is clearly contrary to the bargaining requirements of the Act and it violated Section 8 ( a) (5) and (1) thereof. We further find that, by unilaterally increasing the wage rate of maintenance electricians dur- ing the strike without negotiating with the Union, the Respondent also independently violated Section 8 (a) (5) and (1) of the Act. 2. The Trial Examiner found that the Respondent did not violate Section 8(a) (3) and (1) of the Act by denying reinstatement to any 'This was the anniversary of the Union 's certification 5It is also ' noted that the Respondent did not miss the opportunity to point out to maintenance electricians their poor judgment in selecting the Union as their bargaining representative . Thus, during the early stage of negotiations when the Respondent laid off three maintenance electricians, the Respondent's president observed that it was re- grettable that they had let them go in view of their long service with the Company and that if they had remained in the Steelworkers ' bargaining unit they could have exercised seniority in the plant and continued working, but as it was "they had nowhere to go but out of the gate " 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the strikers when they offered to return to work because he found that they were economic strikers who were permanently replaced. We do not agree. The record establishes, and we find, that the strikers went out on strike in protest to the Respondent's bad-faith bargaining. For this reason, they become unfair labor practice strikers who, under estab- lished law, were entitled to reinstatement to their jobs upon uncon- ditional application, even if it required dismissal of the replacements. It is undisputed that on July 1, 1958, the Union made unconditional application for the return of all the strikers. However, the Respond- ent reinstated only six strikers 6 on that date because the other strikers had been replaced.' Accordingly, we find that the Respondent discriminated against the strikers who were denied reinstatement on their unconditional application in violation of Section 8(a) (3) and (1) of the Act. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent refused to bargain in good faith with the Union that represented a majority of the employees in an appropriate unit. Accordingly, we shall order the Respondent, upon request, to bargain with the Union as the exclusive representa- tive of the employees in the appropriate unit. We have also found that the Respondent discriminatorily denied reinstatement to certain unfair labor practice strikers.8 Accordingly, we shall order the Respondent to offer the employees immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and priv- ileges, discharging, if necessary, any replacements in order to provide work for such strikers. We shall also direct the Respondent to reim- burse the foregoing employees for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by paying to each of these employees a sum of money equal to the amount that he normally would have earned as wages for a period beginning 5 days after the date of his unconditional application for reinstatement to the date of the Respondent's offer of reinstatement, less his net earnings during said period. The amount of backpay O In August 1958, one of the replaced strikers , Sherman Aaron , was recalled when a replacement quit. It does not appear that he was reinstated with the rights and seniority to which he was entitled 7 Sherman Aaron , William Allen , Donald Galtsch, Miles Jackman, George Mertz, Joseph Mollet, Charles Price, Charles Prohaska, and Paul Flock were not reinstated. 8 See footnote 7. LEWIN-MATHES COMPANY, ETC. 941 due shall be computed according to Board policy set forth in F. W. Woodworth Company, 90 NLRB 289. Payroll and other records in possession of the Respondent are to be made available to the Board, or its agents, to assist in such computation and in determining the right to reinstatement. Because the Trial Examiner recommended dismissal of the complaint, and in accordance with Board practice, we exclude from the above period the time from the date of the Inter- mediate Report to the date of the Order herein in computing the amount of backpay to which each employee is entitled. In view of our findings concerning the Respondent's refusal to bar- gain, and the Respondent's discrimination against the strikers, a potential threat of future violations exists which requires the inclu- sion of a broad cease-and-desist provision in our Order. CONCLUSIONS OF LAW 1. The Respondent, Lewin-Mathes Company, Division of Cerro de Pasco Corporation, is engaged in commerce within the meaning of the Act. 2. United Independent Electrical Workers of America is a labor organization within the meaning of Section 2 (5) of the Act. 3. Since December 2, 1957, said labor organization has been the exclusive representative of all employees in the following appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act : All maintenance electricians at Respondent's Monsanto, Illinois, plant including class A, class B, and other job classes, but excluding all office clerical employees, professional employees, guards, watchmen, all other employees, and all supervisors as defined in the Act. 4. By refusing to bargain collectively with the aforesaid labor organization as the exclusive representative of its employees in an appropriate unit, and by unilaterally instituting a wage increase, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) and (1) of the Act. 5. By discriminating in respect to hire and tenure of employment of Sherman Aaron, William Allen, Donald Gaitsch, Miles Jackman, George Mertz, Joseph Mollet, Charles Price, Charles Prohaska, and Paul Finck, thereby discouraging membership in United Independent Electrical Workers of America, the Respondent violated Section 8 (a) (3) and (1) of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Lewin-Mathes Com- 942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany, Division of Cerro de Pasco Corporation, Monsanto, Illinois, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain concerning rates of pay, wages, hours of employment, or other conditions of employment with the United Independent Electrical Workers of America, as the exclusive repre- sentative of all maintenance electricians at its Monsanto, Illinois, plant including class A, class B, and other job classes, but excluding office clerical employees, professional employees, guards, watchmen, all other employees, and all supervisors as defined in the Act. (b) Instituting changes in the terms and conditions of employment of employees in the appropriate unit described above without first consulting with and bargaining with the Union. (c) Discouraging membership in United Independent Electrical Workers of America, or in any other labor organization, by discharg- ing, refusing to reinstate, or otherwise discriminating against em- ployees in regard to their hire or tenure of employment or any term or condition of employment. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union, or any other labor or- ganization, 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 or all such activities, except to the' extent 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, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain with United Independent Electrical Workers of America as the exclusive representative of all employees in the above-described appropriate unit concerning rates of pay, wages, hours of employment, and other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer Sherman Aaron, William Allen, Donald Gaitsch, Miles Jackman, George Mertz, Joseph Mollet, Charles Price, Charles Prohaska, and Paul Finck immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements in order to provide work for such strikers, and make them whole in the manner set forth in the section of the Board's Decision entitled "The Remedy." LEWIN-MATHES COMPANY, ETC. 943 (c) Preserve and, upon request, 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 backpay due and the rights of reinstatement under the terms of this Order. (d) Post at its plant at Monsanto, Illinois, copies of the notice attached hereto marked "Appendix." s Copies of said notice, to be furnished by the Regional Director for the Fourteenth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Fourteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. MEMBER RODGERS took no part in the consideration of the above Decision and Order. 9In 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 " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL bargain, upon request, with United Independent Electrical Workers of America as the exclusive representative of all employees in the bargaining unit described below in respect to rates of pay, wages, hours of employment, and other conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is : All maintenance electricians at our Monsanto, Illinois, plant including class A, class B, and other job classes, but excluding all office clerical employees, professional employ- ees, guards, watchmen, all other employees, and all super- visors as defined in the Act. WE WILL NOT make unilateral changes in wages or other terms and conditions of employment without consulting and negotiating with the Union, and we will not otherwise seek to discredit or 944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undermine the bargaining status of the Union or otherwise re- fuse or fail to bargain in good faith with the Union. WE WILL NOT discourage membership in United Independent Electrical Workers of America, or in any other labor organiza- tion, by discharging, refusing to reinstate, or otherwise discrimi- nate against our employees in regard to their hire or tenure of employment or any terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist the above- named or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from engaging in any or all such activities, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization as a condition of employment in conformity with Section 8 ( a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer Sherman Aaron, William Allen, Donald Gaitsch, Miles Jackman, George Mertz, Joseph Mollet, Charles Price, Charles Prohaska, and Paul Finck immediate and full reinstate- ment to their respective former, or substantially equivalent, posi- tions, discharging, if necessary, any replacement hired on or since April 20, 1958, and make each of them whole for any loss of pay he may have suffered as a result of the discrimination against him. All of our employees are free to become, remain , or refrain from becoming or remaining, members of any labor organization, except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the National Labor Relations Act. LEWIN-MATHES COMPANY, DIVISION OF CERRO DE PASCO 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. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This is a proceeding under Section 10 (b) of the National Labor Relations Act, as amended ( 61 Stat. 136; 29 U.S.C. Sec. 151 et seq. ), herein referred to as the Act. On June 16, 1958, United Independent Electrical Workers of America (herein- after sometimes called the Union) filed a charge against the Respondent, Lewin- Mathes Company , Division of Cerro de Pasco Corporation (hereinafter sometimes LEWIN-MATHES COMPANY, ETC. 945 called the Employer or the Company ), alleging that the Employer "has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) sub- sections ( 1) and (3) and (5)" of the Act. Thereafter, on October 17, 1958, the General Counsel of the National Labor Relations Board caused the Regional Director for the Fourteenth Region to issue a complaint against the Employer, together with a notice of hearing. The complaint alleges violations of Section 8(a) (1) (3 ), and (5) of the Act. In essential part the complaint sets forth that: Since on or about December 2 , 1957, the Union has been the exclusive bargaining representative for the purpose of collective bargaining in a certain described unit but that since on or about that date the Company has refused to bargain in good faith with the Union ; on or about June 30, 1958, the Company refused to reinstate certain named employees to "their former or substantially equivalent positions of employment"; such refusal to reinstate the named employees was "because of their activities on behalf of the Union, in order to discourage membership in a labor organization and because they engaged in protected concerted activities, including an unfair labor practice strike, on behalf of the Union , with other employees" in the described bargaining unit thereby discriminating against these employees; and the Company has refused to bargain collectively with the Union as the exclusive representative of its employees in the described unit. After being furnished with certain particulars by counsel for the Gene^et Counsel, the Company interposed timely answer to the allegations of the coniplainr, denying substantive violations of the Act and as a separate affirmative answer alleging that certain unfair labor practices asserted by the General Counsel occurred more than 6 months prior to the filing of the charges and are, therefore , barred by Section 10(b) of the Act. On the issues raised by the pleadings, this case came on to be heard before the duly designated Trial Examiner at St. Louis, Missouri , on January 20, 1959. The hearing was closed February 10. At the hearing, the General Counsel and the Respondent Company were represented by counsel . Full opportunity to be heard, to examine and cross-examine witnesses , and to introduce evidence bearing upon the issues, to argue orally upon the record, to file proposed findings of fact and conclusions of law, and to file briefs was afforded each party. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT 1. THE BUSINESS OF LEWIS-MATHES COMPANY, DIVISION OF CERRO DE PASCO CORPORATION The Respondent Company is and has been at all times material hereto a New York corporation, with branch establishments in several of the States of the United States, including its place at Monsanto, Illinois, the establishment involved herein, where it is engaged in the business of smelting, refining, and fabricating ores and metals. The Respondent Company in the course and conduct of its business operation during the year 1957, a representative period, sold and shipped products valued in excess of $50,000 from its establishment at Monsanto, Illinois, to points directly outside the State of Illinois. During this same period the Respondent purchased goods valued in excess of $50,000, which goods were transported and shipped to the Monsanto, Illinois, establishment from points outside the State of Illinois. The Respondent Company is, and at all times material to this proceeding has been, engaged in commerce and its activities affect and have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Independent Electrical Workers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES On July 1, 1957, Lewin-Mathes Company and United Steelworkers of America, AFL-CIO (hereinafter sometimes called the Steelworkers ), entered into a cc'lective- bargaining agreement to run through June 30, 1959 . The Company recognized the Union as the sole and exclusive collective-bargaining representative, during the life of the agreement, for all hourly rated employees employed at the Monsanto plant, the term "employee" being meant to apply to all employees "who perform maintenance, production , and service work" except supervisory and other employees 554461-60-vol. 126-61 946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD usually excluded from a production and maintenance unit. This agreement super- seded one entered into between the Company and Local Union No. 4294, United Steelworkers of America, CIO, on July 1, 1955, which ran until June 30, 1957. This 1955-57 agreement covered the same employees within the bargaining unit as that just described and contained within the 1957-59 agreement. Following the filing of a petition for certification by the Union, the Charging Party herein, on July 7, 1957, it was certified as the exclusive bargaining representa- tive for employees in a unit described as "all maintenance electricians at Respond- dent's Monsanto, Illinois plant including Class `A,' Class `B' and other job classes but excluding all office clerical employees, professional employees, guards, watch- men, all other employees and all other supervisors as defined in the Act." The certification of representative was issued December 2, 1957. Case No. 14-RC-3212 (unpublished). The unit so certified is comprised of those maintenance electricians who previously had been included within the unit represented by the Steelworkers. Shortly after the certification of the Union on December 2 and on about Decem- ber 5, 1957, George Biggs as president of the Union advised Richard Lewin, presi- dent of the Company, that the Union desired to enter into negotiations. Thereafter on December 27, 1957, representatives of the Union and representatives of the Company met for the purpose of negotiating a collective agreement. At this, as in subsequent meetings mentioned below, Biggs and a committee represented the Union and Lewin, Joseph Pfeiffer, director of labor relations, and Henry L Schweich, assistant secretary, represented the Company. At the first meeting on December 27, the union representatives submitted to, the Company proposals in the form of a complete proposed collective agreement containing numbered articles regarding recognition, union security, hours of work and workweek, seniority, vacation, holiday pay, (permissible) union activities, mili- tary service, employee welfare plans, death in the family, jury duty, safety, griev- ance procedure, strike responsibility, work jurisdiction, clothes allowance, appren- ticeship, and a final article dealing with the duration of the proposed agreement. The parties then started to discuss the proposals of the Union. In all, some 14 meetings were held between union and company representatives. After the meeting December 27, 1957, they met on January 2, 3, 12, 21, 24, and 29; February 11 and 25; March 7 and 14; April 7; May 5; and June 10, 1958. At the December 27 meeting the parties reached at least an implied agreement that Biggs for the Union was to read through the proposed contract submitted by the Union, article by article or section by section, and explain the intent; that if the intent was questioned a representative or representatives of the Company were to voice disapproval or objection as the discussion went on. During this meeting and up until at least the meeting of January 21, this method of discussion was gen- erally followed. For example, at the first meeting, after Biggs had read section 2 of article I, Lewin (according to Biggs) remarked that there were terms in section 2 that would have to be defined and that the Company objected to the definition of employee, saying "the electrical maintenance work" was the objectionable part and would have to be defined. Biggs replied that he could see nothing wrong with it because it gave the Company the right to use electrical supervisors in cases of emer- gency or to instruct new employees in a way to perform safe work. Biggs further told Lewin that electrical maintenance work was being performed in the plant by Lowry Electric Company employees on premium days i in a switch gearhouse, and Biggs told Lewin he thought the work "belonged to us" and that the Union was entitled to the work, to which Lewin replied that since there was no contract they could assign the work as they saw fit. (Incidentally, it may be noted that this maestion of the right of work for the maintenance employees, members of the Union, was a stumbling block all through the negotiations.) At these meetings the recognition clause, distribution of overtime, work jurisdiction, shift differentials and assignments of work, holiday pay, management rights, the union-security clause, the welfare plan, apprenticeship, the safety clause, the grievance procedure suggested by the Union, all were discussed. As early as the meeting of January 3, the Union stated in writing a definition or a description of the work which its representatives felt should normally be done by maintenance electricians. At that same meeting Biggs suggested, after considerable discussion, modification of the management rights clause, and at the meeting of January 14, submitted in writing a counterproposal on the management clause. The Company suggested that certain language contained in the agreement between the Company and the Steelworkers I Lowry Electric Company theretofore had been called in from time to time to perform electrical maintenance work. The employees of Lowry were not under the supervision of the Company, but of Lowry. LEWIN-MATHES COMPANY, ETC. 947 be used in one or more respects. These examples are not all-inclusive, but are mentioned to demonstrate that the parties were seriously discussing the proposals advanced by the Union, and that the Company did make certain counterproposals. It should be noted that President Lewin took the position that the matter of wages and the matter of the duration of the contract ought to be deferred until other main provisions of the proposals of the Union had been mutually agreed upon or mutually modified, and to this there was a tacit or implied agreement by the union representatives. It should be noted too that up until he meeting of January 21, there had been several tentative agreements reached on certain proposals; for example, the Company proposal was accepted by the Union with respect to the grievance procedure2 The Company at the session he13 on January 21 submitted a counterproposal intended to incorporate all subjects of discussion agreed upon in previous negotiation sessions. This Company counterproposal, like that of the original union proposal, was in the form of a proposed collective-bargaining agreement set up with article headings and sections under each article. After being handed the document by Lewin Biggs remarked that it was quite lengthy but that he and his committee would attempt to go into it and discuss its various sections in deail, which company representatives agreed to, and accordingly the discussion concerning the counter- proposal started with section 1 of article I. At this time the majoi subjects under discussion were with respect to work jurisdiction and assignment of work, the language of the management clause, the retention of seniority by maintenance electricians considered in connection with the seniority of electricians still covered by the Steelworkers unit,3 probationary employees, work jurisdiction insofar as main- tenance electricians were concerned (job rights over other electricians), the military service clause, the supply of hand tools, the question of vacation pay, wage rates, whether wage rates for the Union could be of a pattern set forth in the collective agreement between the Company and the Steelworkers, and certain refinements in connection with each of these subjects. At the meetings of January 29 and February 11, the parties continued to negotiate on the same subjects. Near the end of the January 29 meeting, Lewin told Biggs that the Company intended to lay off three men and a discussion as to how the selection of these men for layoff would be made ensued. During that meeting the question of layoffs and recalls had been discussed. Biggs testified that at the January 29 meeting he wrote out and handed a proposed management-rights clause to company representatives. In connection-with manage- ment prerogative and layoffs and recalls, Biggs expressed the view to Lewin and his associates that the Company could use its own employees where in other parts of the plant Lowry Company electricians were performing electrical maintenance work; that supervisors had performed electrical maintenance work at various times, and that in his opinion there was enough work to keep employees on the job-to this Lewin replied that assignment of work was a company prerogative. The General Counsel takes the position that in this respect the Company was arbitrary and de- manded the use of company prerogative as stated by its president in order to weaken or possibly discriminate against those of its employees who were maintenance elec- tricians and members of the Union. Regarding the layoff of the three men at this time, Biggs said that Lewin remarked that if they had remained in the Steelworkers bargaining unit they could have exercised seniority in the plant and would still have been working, but as it then was they had no place to go but out the gate; further, according to Biggs, he told Lewin the Union could not accept the provisions of the management clause as above discussed because the Company could destroy the unit, to which Lewin replied that it was not the intention of the Company to destroy the 3It appears that a management-right clause had been suggested by Biggs to Lewin at the meeting of January 3 and that Biggs had written out a proposal in longhand ; that it was as this meeting that Pfeiffer presented a grievance procedure in typewritten form in accordance with a discussion had at the previous meeting and that the Union agreed to the grievance procedure as proposed by the Company on that date. There is some con- fusion as to dates in this long record but it appears that between the first meeting and the meeting of January 21 there had been agreements made and disagreements had with respect to several proposals and counterproposals. Discussions during these negotiation sessions were quite lengthy and encompassed other than the brief outline of subjects indicated above. 8 With respect to seniority, the Union was apprehensive that if maintenance electricians in its unit did not have seniority within the department, the Company would be able to bring in 16 electricians from the other unit who had seniority in the sense of company seniority over the maintenance electricians, and the 15 maintenance electricians would have to be let go. 948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unit but said the Company did want the sole and exclusive right to assign the work to whom the Company saw fit. At the February 11 meeting, after further discussion of several open questions, Biggs asked Lewin if the Company would be willing to meet with the Federal Mediation and Conciliation Service at its offices, to which Lewin agreed. Heretofore, all meetings had been held in the company conference room in the main building of the Lewin-Mathes plant. The next meeting between the parties was held at the offices of the Federal Con- ciliation and Mediation Service with Commissioner Sheehan, at which time prior proceedings and pending issues were reviewed. Biggs testified that he offered then to accept the seniority clause offered by the Company provided that no apprentices be laid off, explaining that there were very few apprentices and there would be no appreciable effect in case of layoff, but that Lewin said the Company would not accept that proposal. At a meeting held March 7, again at the Federal Mediation and Conciliation Service offices, the Union submitted certain written proposals, in the form of counter- proposals, covering a proposed preamble, management clause, union-security clause, training program clause, a clause covering work jurisdiction (assignment of work), seniority, and a duration clause. According to Biggs, Lewin again said that he did not desire to set any time limit or settle on a duration clause for the contract until the question of wages had been settled; Biggs apparently adhered to his request made January 24, that the Company give the Union the same type of wage schedule as contained within the Steelworkers' current agreement with the Company. At the March 14 meeting, again with Commissioner Sheehan, the subjects of tool allowance, training program and work jurisdiction, duration and seniority, and union security were discussed. On the question of tool allowance, Biggs said that Lewin refused the request after giving it some thought; Biggs told Lewin that the Union would not haggle too much over tool allowance and then tore up the proposal. On the subject of the proposed training program, according to Biggs, Lewin said he might work up something to cover intent on the training program; Biggs accepted the Company's proposal on a safety clause; there was some discussion concerning the Union's pro- posal for a clothes allowance, and there was tentative agreement that there might be a possibility that the electricians rent their clothes from a laundry service pro- vided it did not work a hardship on the Company through having the service be gate-checked. On the subject of work jurisdiction, no agreement was reached; on the subject of duration, Biggs said that Lewin said that the rest of the contract "should be settled first." Concerning union security, Biggs submitted a written proposal for maintenance of union membership together with a provision for voluntary checkoff of union dues, which was rejected. On April 7, a meeting was held, again at the Federal Mediation and Conciliation Service offices, and discussion was had concerning a management clause, union security, and work jurisdiction. After discussion of the Union's suggestion that a part of the recognition clause of the Steelworkers' contract of 1955-57 be incorporated in the agreement, the Com- pany stood on the proposal contained in the document presented by it. On the sub- ject of work jurisdiction, again according to Biggs, Lewin said that the Company was not going to get into any jurisdictional problems and would assign the work as it saw fit; that unless the Union could accept the proposed management clause and the Company's recognition clause it was a waste of everybody's time to continue negotiations. Lewin said also that he felt that there came a time when one party or the other had to exert enough pressure to try to bring about an agreement of some kind. This meeting ended without a date being fixed for the parties to meet again. On Sunday, April 20, 1958, Biggs called a meeting of the membership of the Union and he and his committee reported to the membership their progress, or lack of progress, in negotiating a collective agreement with the Company. A strike vote was taken and about 3 p.m. on that day a picket line was established at the plant of the Company. At the inception of this strike, the 15 maintenance employees named in footnote 5 employed as maintenance electricians went on strike. At the request of the Union, through Biggs, Commissioner Sheehan arranged a meeting between the parties at his office for May 5. Then, Biggs asked Lewin if the Company would submit the items in dispute to arbitration if the men returned to work. Lewin refused to arbitrate the issues. An unscheduled meeting between the parties was held at the Company offices on June 6, when Biggs asked Lewin for the reinstatement of the strikers-"I asked Mr. Lewin could the men return to work and how many." At that time, Lewin told Biggs that there had been some replace- ments, as he recalled the number was five, and that the first five men "through the gate" would be returned to work. Biggs then, according to him, told Lewin that the Union would accept the contract in full with the exception of wage provisions, LEWIN-MATHES COMPANY, ETC . 949 to which Lewin replied that he did not feel that that was the time or place to talk about the contract since there was a meeting scheduled for June 10. The meeting of June 10 was held at the offices of the Federal Mediation and Conciliation Service with Commissioner Sheehan present. Biggs asked Lewin how many replacements had been made in the jobs previously worked at by the strikers, to which Lewin replied, seven; Biggs asked Lewin who they were and the latter replied he did not know; Biggs asked Lewin what the rate of pay was for the re- placements they had put on the job and was advised that they were being paid at the rate of $2.521/z per hour, the same rate of pay previously and then in effect for so-called class 17 maintenance employees who were covered by the Steelworkers contract. At the time the maintenance electricians went on strike they were being paid at the rate of $2.32/ per hour, more or less. Biggs asked Lewin why the Union had not been consulted before the rate of pay for replacements was put into effect, to which Lewin replied that in the absence of a contract he did not have to consult the Union as to wage scales; he said that in his opinion the Company should have consulted the Union since it was the bargaining representative for the unit. Biggs asked Lewin if the $2.52/ rate would apply to the maintenance electricians who returned to work, to which Lewin replied that that would depend upon the contract, that the Union would have to present grievances and represent the replace- ments, to which Biggs replied that if they were classified as electricians and were in the maintenance unit, the Union would represent them, but so far as seniority was concerned, the Union considered the strikers had the most seniority within the unit. Biggs thereupon offered to accept the proposal of the Company as then under- stood with the exception of the article proposed by the Company on wages and, except for that provision, called the "Whole Agreement Clause," subject to approval of the union membership. Lewin said he could not accept that, and further that the Company would have to revise its seniority clause to insure superseniority for replacements over those strikers whose jobs they then held. In response to a ques- tion by one of the union committeemen, Gaitsch,4 Lewin said that it would take some time to work up a seniority clause of the type the Company had in mind be- cause such a clause would have to insure the replacements superseniority in all respects, including wages and overtime. Shortly thereafter the meeting was ad- journed with no agreement having been reached on any of the points discussed. After company representatives left the last meeting, union representatives re- quested Commissioner Sheehan to arrange another meeting, if possible. No sub- sequent meeting could be or was arranged by the Commissioner. After negotiations had been broken off on June 10, and while the strike was in progress, the Company through its director of labor relations entered into an agree- ment with the representatives of the Steelworkers on June 5, 1958. This agreement, after setting forth that the Company had offered transfers to certain of its Monsanto plant employees within the Steelworkers unit, said transfers to be made to positions outside the bargaining unit then represented by that union (and because the current collective-bargaining agreement between the Company and the Steelworkers provided that an employee "will lose his seniority if he transfers out of the barga ining unit"), stated that: Any employee currently within the bargaining unit represented by the Union [Steelworkers] who transfers to any job at the Monsanto Plant outside the bargaining unit, but not including Supervisory, Technical, Clerical, Professional, Student and Plant Protection jobs, shall be permitted to return to the unit without loss of seniority and the Company and the Union specifically agree that the provisions of Article V Section 6, shall not apply to such employees so transferring, and the seniority of such employee so transferring back to the unit, shall be in the same manner as if the employee had not transferred originally. Before this agreement was made between the Company and the Steelworkers, the Company had sent a letter under date of April 30 "to each of the maintenance electricians employed by this Company who are on strike": On April 20, 1958, the maintenance electricians employed by Lewin-Mathes Company at its plant at Monsanto, Illinois, represented by the United Inde- pendent Electrical Workers of America, commenced a strike in order to force upon the Company certain economic demands. The company regrets that you and your fellow maintenance electricians deemed it necessary to resort to such drastic economic action. The Company wishes to be fair with the people on • Donald Galtsch and Paul Flock, with Biggs, served as negotiators for the Union., 950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike. It wants you to know the following severe consequences that may flow from such strike. Under the law, employees engaged in an economic strike are subject to being permanently replaced. When so replaced, they no longer are entitled to rein- statement and to get their jobs back. In effect, they no longer retain their status as employees. The Company is obliged to meet drastic ;action with drastic measures. This is to serve notice upon you that unless you return to work by Thursday, May 8, 1958, the Company will be obliged to give immediate consideration to replac- ing permanently each and everyone of you. Remember, once permanently replaced, you lose your status as an employee of Lewin-Mathes Company. Between 10 o'clock and noon on the morning of July 1, pursuant to the request of Biggs for a meeting, he and Gaitsch met with Pfeiffer at the offices of the Com- pany. Biggs informed Pfeiffer that all 15 of the strikers were ready to return to work and Pfeiffer in response said that there were not jobs for 15 and that, as Biggs must be aware, there had been certain replacements of jobs made during the course of the strike. After conferring with Sanford S. Silverstein, plant engineer, on the telephone, Pfeiffer informed Biggs that there were places for six strikers and no more, and asked Biggs whether he had a list of the six which he should like to return, to which Biggs replied that Pfeiffer would have to furnish the names. Biggs shortly after was furnished with the names of Lampe, Fortman, O'Dell, Ealy, Thompson, and his own as strikers who would be returned to work by the Company at that time.5 It freely is conceded by counsel for the Respondent and is clearly shown upon the record that as of July 1 and thereafter such seniority lists as were main- tained and observed by the Company gave Hill, Harvell, Brown, Bobish, and Mike, transferred from the unit represented by the Steelworkers, what is called super- seniority over strikers who on July 1 or thereafter returned to work as maintenance electricians.6 It also appears that when Collins, another replacement, left the employ of the Company in August, Aaron, a former striker, was hired to take his place. The Company freely concedes and the record shows that with respect to overtime posting for jobs as shown by weekly overtime assignments of work posted in the department for Saturday work, the replacements after July 1 were given preference for such overtime assignment. Whether or not the practice in posting after October in respect of giving superseniority to the men who replaced strikers would seem to be immaterial in any respect since it is shown that Biggs, who returned to work on July 1, another of the strikers who went back after the strike, did from time to time work overtime. After the deadline day of May 8, set forth in the Company's letter to each striker under date of April 30, the president of the Company decided to attempt to make replacements. Some attempt was made to secure employees from outside the sources. Two such sources were contacted by Plant Engineer Silverstein. From May 8 to about the end of May, according to President Lewin, company executives had been unable to obtain replacements, there were complaints from persons in charge of operations that electrical maintenance work was lacking, and so it was decided to attempt to obtain replacements from within the plant maintenance group. It was then that it was decided to consult representatives of the Steelworkers as to whether or not any of the members of the bargaining unit represented by that union would s Gaitsch, Jackman , Price, Finck, Prohaska, Mollet, Mertz, Aaron, and Allen, the other strikers , were not offered reinstatement as of that day. 6It was stipulated between counsel at the hearing that as of January 1, 1958, 15 main- tenance electricians were employed by the Company, including • Lawrence O'Dell, George Biggs , Andrew Lampe, Joseph Mullet, William Allen, Charles Prohaska, Charles Ealy, Roy Thompson, Sherman Aaron, Donald Gaitsch, Charles Price, George Mertz, Paul Flack, and Miles Jackman, that Charles Price, Miles Jackman, and Paul Finck were laid off on or about January 29, 1958, and that Guy Hill, Mickey Bobish, Delmar Brown, Jess Harvell, Goebel Collins, and S William Mike were employed as electricians at the Respondent's plant as of June 6, 1958 By stipulation entered into at the hearing it is shown that employees Guy Hill, Jesse Harvell, Delmar Brown, Mickey Bobish, and William Mike started work as electricians at the plant on June 5 and have worked as electricians at said plant "to this date and have been paid as electricians to this date" that the timecards for these five men carry the following designations until September 1 Bobish, millwright ; I-larvell, combination welder ; Hill, millwright, William A Mike, mill- wright, and another man, Delmar R Brown (who apparently started work as an elec- trician on June 5), millwright, and that the designation of job classification on each timecard . for each of these men was changed on the cards to that of electrician on September 1, 1958. LEWIN-MATHES COMPANY, ETC . 951 be willing to make a change and become replacements for the strikers . On about the following day, Lewin was furnished with the names of 10 or 12 maintenance people, members of the Steelworkers unit, who might be willing to become replace- ments for the strikers but would not do so with a cut in pay , or without assurance that if they had to leave the electrical maintenance unit they could come back into the Steelworkers unit without loss of seniority according to the provisions of the collective agreement then in effect between the Steelworkers and the Company. After passing the list of names furnished by Griffin , the Steelworkers representative, to the proper persons, Lewin was advised that seven on the list given to him by Griffin had been approved . Lewin then called Griffin and said that the Company would offer these men the jobs as replacements at $2.521/2 cents per hour and that the Company would be agreeable to providing the safeguards asked . Thereafter, the written agreement of June 5 was entered into between the Company and the Steel- workers providing the assurances asked for by that union and agreed to by the Company. Concerning the June 6 meeting, Lewin said that: Biggs had called him on the telephone at his (Lewin's ) St. Louis office on the morning of that day and requested a meeting; Lewin told him at that time that he did not consider it proper to continue negotiations with a meeting scheduled at the Federal Mediation and Conciliation Service; at a meeting held later in the day at the plant, Lewin took the same position, but did tell Biggs that with respect to the five remaining openings , he made clear to Biggs that the jobs "were there at $2.521/2 cents an hour." Contrary to the testimony of Gaitsch, with respect to what happened at the June 10 meeting, Lewin said that: Biggs asked whether the Company had changed its position; the Company told him no, there had been no change in position other than the fact there had been replacements put to work, and it would be necessary because they had been granted superseniority to make a change in the seniority proposal which had not yet been agreed upon; and Gaitsch 's testimony to the effect that the Union offered to accept the contract in full except for the "entire agreement clause" and wages was incorrect . Further, in regard to this meeting, Lewin said that Biggs stated emphatically that the Union would not recognize replacements ; that he told Biggs that he thought that it was the duty of the Union under the law to represent the replacements since they had become members of that unit. Considering all of the testimony of Biggs both on direct and cross -examination, and the apparent adamant position of the Union throughout the whole course of negotiations, that it intended and wanted to preserve to the fullest extent the right of the strikers with respect to seniority , job rights, and work jurisdiction, the Trial Examiner believes the memory of Lewin as to what transpired at the June 10 conference is better than that of either Biggs or Gaitsch. The testimony of Gaitsch with respect to the bargaining sessions, beginning with the one of February 25, is substantially the same as that of Biggs concerning the subjects discussed between the Union and the Company . - At that meeting and the subsequent meetings on March 7 and 14, his testimony confirms that on work jurisdiction, or the right of members of the Union to preference on work assignments , management rights, seniority, and the duration of the contract , the parties were far apart. He also confirmed or substantiated Biggs in connection with the Union offer to arbitrate every matter in issue as of May 5 and that the company representatives refused to arbitrate these issues. The substance of his testimony as to the June 6 meeting on company premises does not differ in real effect from that of Biggs as to what occurred at this meeting; that is, with respect to the Company saying that the question of wages would have to remain open as long as there was no agreement on a contract. The great deterrent in the way of the reaching of an agreement between the parties was the insistence on the one hand of the Union to full jurisdiction and seniority rights within its unit and the insistence of the Company on the other of management rights with respect to assignment of work and, later, after the strike began, its right to protect the replacements who had been hired during the strike by giving them the seniority and assurances which had been promised to them before they undertook to replace the strikers . Assistant Secretary Schweich con- firmed the testimony of President Lewin of the Company that after the June 6 meet- ing Lewin informed President Biggs of the Union that seven men who had replaced strikers were being paid at the rate of $2.521/2 cents per hour; he said further that these men had been granted seniority over and above those rights which would be obtained by any of the strikers were they to return to work in the future, and that Lewin said further that there were five jobs then open at the rate of $2.521/2 cents and that he, Lewin , thought Biggs as president of the Union should report this to his members and tell them that there were five jobs open at that rate if strikers then desired to return . Schweich confirmed the testimony of Lewin and others as to 952 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what transpired at the June 10 meeting . There is not much deviation of essential fact between the testimony of Biggs, Lewin , and Schweich with respect to this meet- ing, except it is said by Schweich that Lewin again informed Biggs that the rate of pay for replacements or for returning strikers and both would be at the rate of $2.521/2 cents per hour, but there was some discussion with respect to distribution of overtime, the preparation of a new seniority clause by the Company, and dis- tribution of premium pay and a few other subjects. According to Schweich, the Union after consideration stated through its representatives at this meeting that they would tentatively accept the proposed clause dealing with distribution of premium pay and holiday work and a clause referring to distribution of overtime work; that there was further discussion with respect to the Company's proposal concerning recognition of management rights. After heated discussion , according to Schweich, Biggs stated that the Union could not negotiate a contract which recog- nized the replacements, to which Lewin replied he could not negotiate a contract which did not recognize replacements and "on that rather heated note the meeting was adjourned." There are no questions of credibility in the true sense to be resolved herein. Such variances appearing from the testimony of the several witnesses , as indicated above and on the record in full, result from best memory according to partisan position and interpretation of the individual witness. The Trial Examiner believes, and finds, that each party engaged in good -faith bargaining throughout the whole period of negotiations. At the hearing, the General Counsel introduced evidence through the business agent of the American Federation of Peace Officers, Guards, Enforcement and Security Personnel for the purpose of showing that in certain contracts between that union and predecessor unions the union had negotiated a union -security or main- tenance-of-membership clause. Counsel for the Respondent moved to strike this testimony as being immaterial and irrelevant to the issues in this case. At the time of the motion, the Trial Examiner could not tell whether or not it was relevant or material and reserved ruling. Counsel for the Respondent, at the end of Respondent's case, introduced the testimony of the assistant foundry superintendent, Kenneth Woods , to prove that in and after the year 1936, when the Mine, Mill and Smelter Workers Union was bargaining agent for the production and maintenance unit in the Monsanto plant of the Company, that union was not able to negotiate a union-security clause in its first contract. Upon review of the whole record, the motion of the Respondent to strike the testimony of the witness called by the General Counsel is granted , and the testimony of the witness called by the Respond- ent is disregarded as having no weight and as being immaterial to the issues in this case. Prior to the strike and before the assignment of replacements of strikers on July 1 , the Company gave a basic written test for junior electricians . The General Counsel at the hearing asked for the results of tests taken by the replacements prior to the time they succeeded strikers on the job to be produced by the Respondent, and counsel for the Respondent agreed and stipulated that although such examina- tions had been given in the past with respect to the ability or qualifications for a man to be employed as a junior electrician , nevertheless these tests were not given to the men who replaced the strikers either at , before, or after the time they started work as maintenance electricians . It further was stipulated that on April 7, 1952, Mike, one of the replacements , took such a test and did not obtain a passing mark. From this, together with the situation in connection with the June 5 agreement between the Company and the representative of the Steelworkers in which the Company agreed to certain "safeguards" to be given to those of the Steelworkers who should transfer over as maintenance electricians , the General Counsel asks that circumstantially, an inference should be drawn to establish collusion between the Steelworkers and the Company in an effort to destroy the unit represented by the Union, the Charging Party herein . No such inference can be drawn on the facts. Summary and Concluding Findings In whole context, this Trial Examiner cannot find that the Respondent Company had no right to use the employees of Lowry Electric in the face of an economic as distinguished from an unfair labor practice strike; he cannot find that the "grant- ing" or giving of different wage rates to replacements for striking employees, in the circumstances related above, constituted interference or discrimination. Able counsel for the General Counsel , in argument and in brief, has cited strong authority to sustain his position. E.g., Southern Saddlery Company, 90 NLRB 1205; N.L.R.B. v. Montgomery Ward & Co., 133 F. 2d 676 (C.A. 9), and other cases. However, this case must rest on its own particular facts. N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149. It now is expressly found that the Union and the Company each T$E ROOT DRY GOODS CO., INC. 953 engaged in. good-faith; bar aining during the times above mentioned, and failed to reach agreement; that the Union lost an economic strike, and the Company did not contravene any of the provisions of the Act in maintaining its position during and after the inception of dispute. Motions of the Respondent To Dismiss the Complaint At the hearing, at the conclusion of the case -in-chief of the General Counsel, and again at the conclusion of the Respondent's case, counsel for the Respondent moved to dismiss the complaint herein. Motion to dismiss is hereby granted. CONCLUSIONS OF LAW 1. The Respondent, Lewin-Mathes Company, Division of Cerro de Pasco Cor- poration, is, and at all times material hereto has been, engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Independent Electrical Workers of America is, and during the times material hereto has been, a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent above named has not been and is not now in violation of the National Labor Relations Act, as amended, as alleged in the complaint. [Recommendations omitted from publication.] The Root Dry Goods Co., Inc.' and Ruth Walker I and Associa- tion of Root Store Employees, Petitioners. Cases Nos. 35-RD- 102 and 35-RC-1742. March 4, 1960 DECISION 3 AND DIRECTION OF ELECTION Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing 4 was held before George M. Dick, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. 1 The name of the Employer appears as amended at the hearing. is Retail Store Employees Union Local Number 550, Retail Clerks International Associa- tion, AFL-CIO, intervened in the instant cases on the basis of a 8-year contract covering selling employees only . The contract, which expired prior to the filing of both petitions, ie: not urged as a bar to an election . Alleging that Ruth Walker, an employee of the Employer who is the individual Petitioner in Case No . 35-RD-102, was absent from the hearing on the instant petitions, the Intervenor moved to dismiss her petition . We deny the motion. Walker was represented by counsel at the hearing. The Intervenor was free to subpena her. There is no requirement in the Act or the Board 's Rules that she attend such a hearing. -Economy Furniture, 122 NLRB 1113 , footnote 2. 8The Intervenor requests the Board to postpone processing of the instant petitions pending determination of an appeal, which the Intervenor has taken from a refusal of the Regional Director , to issue an unfair labor practice complaint against the Employer, and which was pending at the time of the hearing. It is a long-established practice of the Board not to hold representation proceedings in abeyance after unfair labor practice charges have been found to be without merit by the Regional Director , notwithstanding the fact that the Regional Director's action is still under investigation by the General Counsel. Cuneo. Press of Indiana, 114 NLRB 764 . In any event, we have been ad- ministratively advised that the appeal has been denied by the General Counsel. & The Intervenor objected to consolidation of the RC and RD petitions and moved to dismiss the petitions because they are signed by the same person and are "inconsistent." We find no merit., in these contentions. Consolidation is a matter for administrative determination;. No party has shown that it has been prejudiced by consolidation of the Instant petitions. The fact that Walker filed the RD petition in her individual capacity and signed the. RC petition as an officer of the RC Petitioner does not, standing Along- justify justify a finding of inconsistency in the petitions . Great Atlantic and Paoi)lo Tea Company, 116 NLRB 1468, at 1465. 126 NLRB No. 114.