Federal Dairy Co., Inc.

1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhoods have engaged in and are engaging in unfair labor-practices within the meaning of Section 8 (b) (3) of the Act. - . . 5. By failing to continue in full force and effect , without resorting to strike, all the terms and conditions of the existing .contracts for a period of 60 days after the giving of the notice required in Section 8(d)(3) as provided by Section 8(d)(4) of the Act, the Biotherhoods have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (3) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Federal Dairy Company, Inc. and Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Case No. 1-CA-3115. March 3, 1961 DECISION AND ORDER On August 9, 1960, Trial Examiner Albert P. Wheatley issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report, and supporting briefs.' The Board 2 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following additions and modifications.' 1. For the reasons set forth in the Intermediate Report, we agree that the strike by the Respondent's employees which began at midnight on February 21, 1960, was from its inception an unfair labor practice strike. We also agree with the General Counsel's contention that even if the strike were economic in its inception, it thereafter was converted to an unfair labor practice strike. The evidence shows that on Febru- ary 22, 1960, the first day of the strike, and continuing to on or about ' The Respondent's request for oral argument is denied as the record, including the exceptions and briefs, adequately sets forth the issues and the positions of the parties. ' 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 [ Chairman Leedom and Members Rodgers and Jenkins]. ' Respondent, among other things , takes exception to the amending of the charges, the service thereof, the amending of the complaint , the manner of recall of witnesses and their examination after the complaint was amended , the extent of the participation in the bear- ing by counsel for the Charging Party, and to the conduct of the hearing, charging the Trial Examiner with bias and prejudice. We find the various rulings on these issues made at the hearing by the Trial Examiner to the proper and not prejudicial to Respond- ent. In regard to the charge of bias and prejudice made against the Trial Examiner in his conduct of the hearing, we find no support in the record for this charge. To the con- trary, the record shows Respondent was afforded every reasonable opportunity to present its case and make its record. 130 NLRB No. 85. . FEDERAL DAIRY COMPANY, INC. 1159 February 25, Respondent's officers approached the picketing employees and urged them to abandon the strike and to come back to work, stating to the employees that the Union was dead and that Respondent would not negotiate, or sign a contract, with the Union. The Board has held that a threat by an employer not to recognize its employees' bargain- ing representative, or not to sign a contract with such representative, is coercive and violative of Section 8(a) (1) of the Act.' We find, there- fore, that the threats by Respondent not to negotiate or sign a contract with the Union were coercive, and, therefore, constituted unfair labor practices. _ Accordingly, even assuming that the strike was economic at its inception, it was converted to an unfair labor practice strike on and after February 22,1960.11 2. Respondent excepts to the refusal of the Trial Examiner to admit evidence at the hearing of alleged strike violence by individual em- ployees. The Trial Examiner excluded this evidence on the ground that an issues as to this matter had not been joined in the pleadings or otherwise. The record shows that on the second day of the hearing the Charg- ing Party amended the 8(a) (1) and (5) charge against Respondent to charge also a violation of Section 8(a) (3) because of Respondent's re- fusal to reinstate, upon request, striking employees. Thereafter, dur- ing the cross-examination of a witness, Respondent's counsel asked the witness if he had not been accused of several acts of violence during the strike. Upon objection by General Counsel, Respondent' s counsel stated the matter went directly to the witness' credibility, and also had. a bearing on his eligibility for employment, or reemployment, by Re- spondent. The Trial Examiner sustained the General Counsel's objec- tion. After further remarks on the admissibility of the evidence by Respondent's counsel, the Trial Examiner advised the counsel that he had several alternatives insofar as the Trial Examiner's ruling was concerned, and one of these was to amend his answer and place in issue the matter of strike violence. Subsequently, the General Counsel amended the complaint to allege a violation of Section 8 (a) (3) of the Act by the refusal of Respondent to reinstate striking employees upon request. The Trial Examiner recessed the hearing for approximately 21/2 weeks to afford Respondent an opportunity to answer the amended complaint. Respondent's amended answer was duly, filed. It did not raise as a defense to the alleged refusal to reinstate striking employees the matter of strike violence, but instead raised the defense that the strikers were economic strikers and had been replaced or had been offered reemployment. A Walton Manufacturing Company, 124 NLRB 1331 ; Waycross Machine Shop, 123 NLRB 1331 ; San Angelo Standard, Inc., 110 NLRB 1091 ; Grunwald-Marx, Inc., 127 NLRB 476. 6 Grunwald-Marx, Inc., supra; Giu8tina Bros . Lumber Co., 116 NLRB 700, 731; Maurice Embroidery Works, Inc., 111 NLRB 1143. 1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Thereafter, at the resumed hearing, Respondent's counsel, during the cross-examination of a witness, asked if the witness had solicited the customers of Respondent while working during the strike for another dairy. The General Counsel objected to the question. Re- spondent's counsel then stated, "I may be a• little premature in an- ticipating that perhaps there will be some issues joined in these proceedings, which would make this type of interrogation proper. However, we do not have it at this moment." The Trial Examiner sus- tained the objection, again pointing out to Respondent's counsel that no issue had been raised as to whether the witness had been discharged and/or denied reinstatement because of any misconduct. After fur- ther discussion Respondent's counsel then closed the matter with the- remark, "I think you are right." We find, under the circumstances of this case, the Trial Examiner's refusal to admit evidence of alleged strike violence or misconduct was proper. The Trial Examiner gave Respondent's counsel every op- portunity properly to present the issue of strike violence or miscon- duct as a defense to the alleged refusal to reinstate striking employees, even to the extent of advising counsel he could amend his answer to bring the issue properly before the Trial Examiner. In these circum- stances, we find no prejudicial error in the Trial Examiner's rulings. 3. The Trial Examiner found that Respondent took the position during negotiations that it was financially unable to meet the Union's demands, and that, upon request, it failed to furnish the Union with information and material to substantiate its position. The Respond- ent excepts to this finding. We agree with the Trial Examiner. The record shows that Respondent consistently took the position that it had operated at a loss during its previous fiscal year, that it could not afford to meet the Union's proposals, could offer no more than a health and welfare program, that its Internal Revenue report for the previous year would show it had operated at a loss, and that its profit and loss statement for the previous year would show it had lost money. Like the Trial Examiner, we interpret the Respondent's, position as constituting a plea of "inability to pay" a wage increase and to satisfy other economic demands within the meaning of N.L.R.B. v. Truitt Mfg. C0.6 Respondent contends that it in fact offered adequate information to support its "inability to pay" plea. The record, however, we find, does not support this contention. According to the credited evidence, the record shows only that at a meeting with Federal and State con- ciliators on January 25, 1960, Respondent's counsel offered to permit a check of its books by any outside accountant whom the conciliators chose. The Union declined this offer. Respondent's counsel then stated to the Union, "We'll not give you the papers, the CPA papers, 0 351 U.S. 149. FEDERAL DAIRY COMPANY, INC. 1161 and you have no right to them." In these circumstances, like the Trial Examiner, we find that Respondent did not meet its obligations to furnish the Union, upon request, and in good faith, with information to substantiate its plea of "inability to pay."' 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, Federal Dairy Com- pany, Inc., Providence, Rhode Island, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local Union 64, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, by failing, upon request, to furnish said Union with such record information and other probative material as will tend to substantiate the Respondent's claim of inability to meet the Union's demands and will enable said Union to discharge its func- tions as the statutory representative of the Respondent's employees; by unilaterally withdrawing benefits from its employees; by attempt- ing to bargain directly with its employees; and by engaging in dila- tory tactics in scheduling meetings. (b) In any other manner refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of em- ployment with Local Union 64, international Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, as the ex- clusive representative of its employees in the following appropriate unit : All drivers and plant employees, including route foremen and tank drivers, but excluding office employees, guards, professional em- ployees, and supervisors as defined in the Act. (c) Discouraging membership in the above-named labor organiza- tion by refusing to reinstate, upon their unconditional request, any of its employees engaged in concerted activity as unfair labor practice strikers; or, because of their union membership or activity, by dis- criminating in any other manner with respect to their hire or tenure of employment or any term or condition of employment, except to the extent permitted by Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist the above-named labor organization, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in con- 7 N.L.R.B. v. Truitt Mfg. Co., supra; Tennes8ee Chair Company, Inc., 126 NLRB 1357. 1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities for the purposes of collective bargaining or .other mutual aid and 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, 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) Furnish Local Union 64, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America, with such record information and other probative material as will tend to sub- stantiate the Respondent's claim of financial inability to meet the Union's demands and will enable said Union to discharge its func- tions as the statutory representative of the Respondent's employees. (b) Upon request, bargain collectively with the above-named Union as the exclusive representative of all the employees in the appropriate unit, and embody in a signed agreement any understanding reached. (c) Offer to the employees listed on Appendix A, who were on strike as of April 4,1960, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay, in the manner set forth in the Section of the Intermediate Report entitled "The Remedy." (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, .all payroll records, social se- curity payroll records, timecards, personnel records and reports, and all other records necessary for an analysis of the amounts of backpay due and the reinstatement rights of employees in accordance with the terms of this Order. (e) Post at its plant in Providence, Rhode Island, copies of the notice attached hereto marked "Appendix B." 8 Copies of said notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily. posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the First Region, in, writing, within 10 days from the date of this Order, what steps the Respond- ent has taken to comply herewith. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." FEDERAL DAIRY COMPANY, INC. . APPENDIX A 1163 Name Street City and State Aquire, Joseph 319 Atlantic Ave. Warwick,-R.I. Brown, Wilson 13 Green St. Warwick, R.I. Bonaventure, Anthony 12 Summer Ave. Central Falls, R.I. Bouchard, Armand Arrowhead Trail Spragueville, R.I. Buono, Frank 363 Dyer Ave. Cranston, R.I. Casino, Pasquale 40 Ansonia.Road -Warwick, R.I. Coppa., Vito 161 Westcott Ave. Cranston, R.I. Croce, Lawrence 28 Gainer Ave. No. Prov., R.I. Cicione, Louis 18 Glenwood Ave. Cranston, R.I.- Dorney, William 23 Lena St. East Prov., R.I. DeSandro, Silvio 29 Princess Ave. Cranston, R.I. Dionne, Edward 20 Boyd St. Providence, R.I. DiCicco, Pasquale 3 Flora St. Providence, R.I. Fay, James 200 Courtney Ave. Pawtucket, R.I. Federico, Vincent 11:Messenger. St. Providence, R.I. Feuti, Joseph 135 Samuel Ave. Pawtucket, R.I. Gagne, Armand 55 Ponagansett Ave. Providence, R.I. Gagne, Joseph 18 Matson Ave. Providence, R.I. Insana, Peter 59 Second Ave. Cranston, R.I. Iacono, Louis J. 851/2 Vinton St. Providence, R.I. Lopez, Carmine 25 Parsonage Drive Warwick, R.I. Mobilia, Vincent 48 Grove St. Providence, R.I. Lord, Anthony 86 Home Ave. Providence, R.I. Loparto, Robert 188 Whitmarsh St. Providence, R.I. Monti, Frank 20 Winfield Road Johnston, R.I. Montefusco, Frank 68 Villa. Ave. Warwick, R.I. Monti, John 18 Dora St. Providence, R.I. Nero, Anthony 10 Joslin Street Providence, R.I. Nicini, Armando 175 Maplewood Ave. Cranston, R.I. Piaciteill, Antonio 42 Oak Street Providence, R.I. Regine, Frank 21 Angelo Ave. No. Prov., R.I. Regine, Ralph 168 Laurel Hill Ave. Providence, R.I. -Regine, Raymond 190 Laban St. Providence, R.I. Rotondo, Joseph 141 Murray St. Providence, R.I. Rotondo, Joseph (Jr.) 91 Clarence St. Providence, R.I. Silvestri, Rocco 38 Abbott St. Providence, R.I. Saccoccio, Salvatore 23 Cedar St. Cranston, R.I. Sharp, Maurice 79 Pettis Drive Warwick, R.I. Savoie, George 183 Manton Ave. Providence, R.I. Tagliaferri, Vincent 21 Champlain Place Providence, R.I. .Tomassi, Dante 172 Allston St. Providence, R.I. Vasseur, Theodore 53 Ponagansett Ave. Providence, R.I. 1164 DECISIONS OF • NATIONAL LABOR RELATIONS BOARD Name Street City and State Ward, John 7 Young Ave. Providence, R.I. Ysenbart, Donald 54 Cromwell St. Providence, R.I. Guilbeault, Henry 158 Pine St. , Pawtucket, R.I. APPENDIX B 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 NOT discourage membership in Local Union 64, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, by re- fusal to reinstate any of our employees because of their union membership or activity, or by discriminating against them in any other manner with respect to their hire or employment tenure, or any term or condition of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self- organization, to form labor organizations, to join or assist Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor or- ganization, to bargain collectively through representatives of their own free choice, or to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or pro- tection, or to refrain from 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, as authorized in Section 8(a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL bargain collectively, upon request, with Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, as exclusive representative of the employees in the bargaining unit described below, with re- spect to rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody such understanding in a written and signed agreement. WE WILL furnish the above-named Union with such record information and other probative material as will tend to sub- stantiate our claim of inability to meet the Union's demands. WE WILL offer all of our employees who were on strike on April 4, 1960, immediate and full reinstatement to their former or sub- stantially equivalent positions. FEDERAL DAIRY COMPANY, INC. 1165 WE wiLL make our employees whole for any loss of pay each of them may have suffered as a result of our discriminatory refusal to reinstate any of them on April 4, 1960, after their unconditional offers to return. The bargaining unit is: All drivers and plant employees, including route foremen and tank drivers, but excluding office employees, guards, professional employees, and supervisors. FEDERAL DAIRY COMPANY, INC., 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 RECOMMENDATIONS STATEMENT OF THE CASE This proceeding, with all parties represented , was heard before the duly designated Trial Examiner in Providence, Rhode Island, on various dates beginning April 14 and ending on May 27, 1960. The issues litigated were whether Federal Dairy Com- pany, Inc., herein called Respondent, violated Section 8(a)(1), (3 ), and (5) of the National Labor Relations Act, as amended , herein called the Act or the statute. After the hearing in this matter , counsel for the General Counsel and counsel for Respondent filed briefs with the Trial Examiner which have been considered in preparing this report. Upon the entire record, and from his observations of witnesses , the, Trial Examiner makes the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Rhode Island corporation maintaining its principal office and place of business in Providence,'Rhode Island, where it engages in the manufacture, sale, and distribution of dairy products . Annually more than $500,000 worth of milk or dairy products are shipped directly to Respondent from points and places outside the State of Rhode Island . There is no issue herein concerning jurisdiction and the Trial Examiner finds that the evidence adduced satisfies the Board 's requirement for the assertion of jurisdiction. . II. -THE LABOR. ORGANIZATION INVOLVED Local Union 64, International Brotherhood of Teamsters , Chauff eurs, Warehouse men and Helpers of America, herein called the Union , is a labor organization within the meaning of Section 2(5),of the Act. III. 'THE ALLEGED UNFAIR LABOR PRACTICES . A. Issues The primary issues herein are: (1 ) Whether Respondent, following certification of the Union, failed to bargain in good faith; (2) whether a strike which occurred on February 22, 1960, was an unfair labor practice strike ; (3) whether the strikers are entitled to reinstatement ; and (4 ) whether appeals to the striking employees to abandon the Union and come back to work were unlawful discharges. With respect to.the refusal to bargain issue (which - is the core of this matter), the General Counsel's case has a 14-pronged thrust-that Respondent refused-to supply pertinent and relevant financial data upon request by the Union, that Re- spondent unilaterally withdrew benefits while negotiations were pending, that Respondent attempted to induce its employees to repudiate the'Union ,as their repre- sentative and to deal directly with Respondent , and that. Respondent engaged in dilatory tactics in scheduling meetings. 1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The Facts' The factual situation involved herein concerns primarily events subsequent to November 9, 1959-the date the Rhode Island State Labor Relations Board certified the Union as the bargaining agent for Respondent's drivers and plant employees. Nevertheless,- some :background appears appropriate. In October 1959 the Union undertook, for the third time in the past 10 years, to organize the employees of Respondent. These activities culminated in a strike for recognition on November 2, 1959, in which most of Respondent's employees par- ticipated. On that date (November 2), and as a direct result of the strike, the parties (Respondent and the Union) agreed to a consent-election proceeding before the Rhode Island State Labor Relations Board (agreed to a comparison of authorization cards with company records). As noted above, the State Board issued a certifica- tion of representatives on November 9, 1959. The State Board certified the Union to be the bargaining agent for "all drivers. and plant employees, including, route foremen and tank drivers, excluding office employees;-guards, professional. employees, and supervisors."2 Although the State Board's certification was not issued until November 9, the parties were aware of the results of the cross-check of authorization cards prior to that date and, in the light thereof, agreed to enter into discussions looking toward a. collective-bargaining agreement. On November 2, Paul Hanoian, business agent for the Union, was informed that Allan Seserman, Respondent's lawyer, would be the negotiator on behalf of Respondent and (Hanoian) agreed to prepare his demands and contact Seserman at a future date for the purpose of negotiating a contract. However, there appears to be an issue herein as to whether there was an oral com- mitment by the Union (Hanoian ) on November 2 to seek a contract only through Respondent's counselor (Seserman ). While there is some evidence in the record indicating that such a commitment was made, the record as a whole does not clearly support any such claim. The instructions Seserman gave his client (Respondent) 3 and the events subsequent to November 2 4 indicate that with a possible exception of Seserman no one was aware of such a commitment , if indeed there was one. On the basis of observations of witnesses and analysis of the record herein the Trial Examiner rejects any contention that such a commitment was made by Hanoian.5 1 The Trial Examiner will state in narration what the Trial Examiner believes and finds to be the facts as revealed by the evidence adduced. The findings of fact are based upon the Trial Examiner's consideration of the entire record and observations.., of wit- nesses. All evidence "on disputed points is not described so as not to burden this report unnecessarily. However, all has `been considered and, where required, resolved. In determining credibility: in this proceeding, the Trial; Examiner: has, considered inter alia: the, demeanor and 'conduct of witnesaea; their candor or lack thereof ; their apparent fair- ness, bias, or prejudices; their lnterest,or lack thereof ; their ability to know, comprehend, and understand the matters about -which they. have testified ; whether they have been contradicted or otherwise impeached ; and consistency and inherent probability of the testimony. 2The validity of the State Board certification is not challenged - herein . The. Union by virtue of the certification swas, and,is, , the exclusive. representative for, the employees in the above-named unit. See Pehirieula'Asphalt '& Construction Company, 127 NLRB 136. $ Seserman's -testimony reveals' that he . told. his client ,: ".That Hanoian was, the col- lective bargaining . agent, thatrunquestionably there' may be 'things that might come up in the plant,; there' might be grievances, might ? be something , that might come , up in the interim'with respect to working conditions, or things that' might happen with respect to a particular employee, and that the, 'Almonte ;brothers should realize: that if Paul Hanoian wanted to call them or see them in regard to any matters involving a grievance, or a misunderstanding, perhaps, between a foreman and an employee, that under present condi- tions they should always meet with him when he wants to, listen to what he has to say, and if there is a way in which they can straighten out the situation they shouldn' t hesi- tate to do it. But, if they became,involved in something they didn 't understand they were to contact me and I ' would `advise them or assist them" ; and "that if Mr. Hanoian called them in regard to a problem iii, the plant, or that if as a result of any matter that came up they bad to call him with reference to something, or a complaint between employees, or grievances, that they should not hesitate to do so, and try to dispose of it and settle It." 4On several occasions ofhcers'of"Respondent and Hanoian met and discussed terms and conditions of employment. - 5 Further, such a com mitment and breach thereof, if such occurred , would not excuse a refusal to bargain , if such a, refusai,oeeurred. See American Vitrified Products Company, 127 NLRB 701, footnote„1:. FEDERAL DAIRY COMPANY, INC. 1167 On November 20, 1959, Business Agent Hanoian met and conferred with Re- spondent's owners.6 This meeting was called to discuss, and the parties did discuss, a grievance involving an employee by the name of Joseph Rotondo, Sr. After the discussion involving Rotondo, the meeting became "a get acquainted meeting" at which working conditions in general-in broad rather than specific terms-were discussed. During the course of the meeting Hanoian complained about certain remarks allegedly -made by Respondent's sales manager (Dandanelli), and obtained Respondent's assurances that such remarks would cease. Hanoian and the Almonte brothers also discussed the composition of the bargaining unit. The Almontes sought to exclude from the unit tank drivers and Hanoian insisted on bargaining for employees in the certified unit, which included tank drivers. On November 23, 1959, Business Agent Hanoian and Respondent's president, Henry Almonte, conferred at the Martinique Restaurant in Providence, RhodeIsland. This was another "get acquainted meeting" and the discussions were general rather than specific: During the-course of this. meeting the parties reiterated their positions concerning tank drivers and discussed the type of contract the Union sought from Respondent. Hanoian orally proposed a contract similar to the one the Union had with Crandall Dairy or similar to the one in effect at Whiting Dairy. Henry Almonte - did not accept or reject such proposal. Apparently he took the matter under con- sideration. In any event, the meeting ended with an understanding that Hanoian would draft and submit a written proposal. in the near future. Another meeting between Hanoian and Respondent,7 at the Martinique Restaurant, took place on November 30, 1959. The parties again stated their positions con- cerning tank drivers and talked, in general terms, about the applicability of the provisions of the Crandall and Whiting contracts to Respondent's operations. During a telephone conversation on or about December 3, 1959, Seserman in- quired when Hanoian would have the union proposals ready for discussion and Hanoian told him he would let him know soon. About the same date (perhaps that evening) Hanoian mailed to Respondent a two-page document outlining the union proposals. Upon receipt of this document Henry Almonte telephoned Hano- ian and inquired what was expected of Respondent-whether "we are going to wait for Mr. Seserman to get in touch with me or what you want me to do?" Hanoian suggested a meeting in his office between himself and the Almonte brothers. On December 4, 1959, such a meeting was held. At the meeting on December 4, which lasted 6 or 7 hours, the parties discussed the.-Union''s,'proposals;^ reiterated their positions concerning tank drivers, discussed the'economic issues involved in the Union's proposals, and agreed upon a retro- active date of December 1, 1959, as the date proposals agreed upon would be effec- tive.'. At this meeting Respondent claimed that it was operating at a loss-operat- ing in the red-and could not afford to meet the economic proposals of the Union and the Union (Hanoian) disputed this contention. The original proposals of the Union were in outline form and indicated on the face of the proposal that a compre- hensive collective-bargaining agreement would be submitted at a later date . At this meeting on December 4 the parties anticipated that the comprehensive proposals would be forthcoming the next day and, at Respondent's request, Hanoian agreed to send such proposals to Seserman, which he did on or about December 7, 1959. Another meeting between the, Almonte brothers and Hanoian was scheduled for the next day, December 5, 1959'.9. On December 5, 1959, Business. ' Agent.Hanoian.and the Almonte brothers (Henry, Angelo, and Alfred) spent some 6 or 7 hours discussing the terms of a comprehen- sive collective-bargaining agreement (a 32-page contract proposal ) which Hanoian 8 Henry Almonte, Respondent's president ; Alfred Almonte, Respondent's vice presi- dent; and Angelo Almonte, Respondent's secretary and treasurer. Respondent, for prac- tical purposes, is a family concern owned and operated by the Almonte brothers just named. T Henry Almonte and, after the meeting was in progress , Angelo Almonte. 8 It is not clear from the record whether retroactivity was agreed upon at this meeting or the meeting on December 5. But such an agreement was reached on one of these dates. The specific date of such agreement is not important herein , except as it affects the credibility of Hanoian and Henry Almonte and since the Trial Examiner believes and finds Hanoian -a more reliable witness than ,Henry Almonte, he (the Trial Examiner) has accepted the date given by Hanoian. .9 There are sharp conflicts of evidence between Hanoian and Henry Almonte, the only witnesses giving 'detailed testimony concerning this meeting, and the findings of fact made above . are based upon the testimony of Hanoian which the Trial Examiner credits. . See footnote, 1. In making this credibility resolution , the trial Examiner is acutely aware of the background , the experience, and the acumen of the individuals involved. 1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presented to the Almontes on that date. Respondent again claimed that it was operating at a loss-in the red-and could not afford to meet the economic pro- posals of the Union. This meeting ended with an understanding that there would be another meeting in the near future at which Seserman would represent Re- spondent.'0 By letter dated December 7, 1959, Hanoian advised Seserman, DEAR MR. SESSERMAN: In accordance with our understanding, we are en- closing herewith for your perusal our proposed Agreement with your client Federal Dairy Company, Inc. Very truly yours, "A few days after December 5" Henry Almonte telephoned Hanoian and advised him that on advice of counsel Respondent was not willing "to go along with the December 1, 1959, retroactive date" and that Respondent would leave the final decision on this matter and collective bargaining generally up to its counsel, Mr. Seserman. On December 15 and 19, 1959, Hanoian, the Almonte brothers; and Seserman met and discussed, inter alia, the Union's contract proposals. Offers and counter- offers were made as the meetings progressed and tentative agreements were reached on some, but not on all, items. A considerable portion of these meetings was de- voted to discussing items in the Union's proposal which would increase Respondent's operating expenses-the additional costs were estimated by Hanoian to be between $50,000 and $60,000 and by Respondent to be more than that amount-and agree- ments were not reached on these items. Prior to this meeting but after the Union became the bargaining agent (after November 2, 1959), Respondent canceled or withdrew, without notice to, or consultation with, the Union, certain benefit pro- grams which had been in effect prior to the advent of the Union 11 and at this meet- ing (on December 15, 1959) Hanoian complained about this conduct. Respondent's counsel then advised Respondent to reinstate the benefit programs and restore the status quo and maintain it at least until the conclusion of the contract negotiations. Respondent indicated an intention to do so but the record herein reveals that no steps were taken in this direction. This meeting ended with an understanding that the parties would meet again sometime after the holidays and with a further under- standing that Respondent's proposals (in writing) concerning items requiring an increase in operating expenses (cost items) would be forthcoming soon.12 Hanoian and the three Almonte brothers conferred at Respondent's place of business on January 7, 1960. At this meeting the parties alluded to the Union's proposal and Respondent told Hanoian, "We cannot give you any wage, increases, 10 Respondent's brief is highly critical of Hanolan because of -his conduct in meeting as noted above-with Respondent's officials outside of the presence of Respondent's counsel- and asserts that Hanolan exploited the "ignorance of the officers of the Company" (who are foreign born) by trying to make "deals" with them when he (Hanolan) knew they had not the benefit of counsel. Under the circumstances revealed by this record, the Trial Examiner is not persuaded that Hanolan should be criticized for meeting with Respond- ' ent's officials outside the presence of Respondent's counsel. It seems to the Trial Examiner that Respondent's criticism is misplaced. While certain segments of the testimony of. Henry Almonte indicate an attempt to exploit, his testimony as a whole does-not support such an assertion and clearly the record as a whole refutes any such contention. n Prior to November 2, 1959, three separate benefit programs were in effect at Re- spondent's place of business, namely,' a bonus program for new business, a contest for new business (which ran from May 30, 1959, to September 30, 1959, but new customers had to be retained until October 31, 1959, and payments to winners were to be made after that date), and a safety bonus plan (under which employees without an accident for 6 months were to receive a $30 bonus-this plan was inaugurated in June 1959). 12 As noted above, five persons attended these meetings. Only two (Hanoian and Seserman) gave detailed testimony concerning what occurred. Direct and responsive answers were not the habit of either-Hanoian favored conclusions and Seserman circum- locution. Further, Seserman's testimony contains equivocation, evasion, and misleading' inferences which seem to be according to design rather than chance. There are major differences in the testimony of Hanolan and Seserman and the Trial Examiner has resolved these differences by crediting the testimony of Hanoian. In' making these credibility resolutions (and others involving Hanoian and Seserman) the Trial Examiner has considered the matters just mentioned, the fact that Respondent had available, but did not. use, corroborative testimony, namely, the testimony of the'Almontes,'and the items set forth in footnote 1. ' FEDERAL DAIRY COMPANY, INC. 1169 we cannot afford it, we are operating in the red, the only thing we can offer you is a health and welfare plan which costs $4.20 a week, provided we furnish the carrier, we have the choice of the carrier of the insurance." Hanoian was further told that the prevailing terms and conditions would continue-that there would be "no wage increases" and no improvement on the vacation schedule. Hanoian stated to the Almonte brothers that the offer was "inadequate, unsatisfactory and we cannot accept it, I [Hanoian] cannot understand why a large independent dairy of this size doing the volume of business that they were doing cannot afford to meet the standards within the industry in this area" and was told "We can't give you any more." On January 11, 1960, Hanoian and a union committee met with Seserman and the three Almonte brothers at Respondent's place of business. Hanoian complained about Respondent's failure to reinstate the benefit programs previously mentioned herein and was told Respondent would give further consideration to these matters. Some of the economic proposals of the Union (guaranteed minimum wages for ice cream drivers, wholesale drivers, retail drivers, and route foremen, wage increases for inside employees, and pay for overtime work and paid holidays) were discussed and Respondent made certain offers which the Union rejected as being inadequate. The parties agreed to discuss these matters at their next meeting (which was held on January 14, 1960) at which time Respondent would submit its proposals on these matters in writing.13 On January 14, 1960, Hanoian and a union committee met with Seserman and the three Almonte brothers at Respondent's place of business, at which time Re- spondent presented a proposal outlining Respondent's offer on monetary items. Re- spondent's proposal reads as follows: WAGE RATES [It is agreed that the following wage taxes shall prevail for a five (5) day work week in the designated classifications of employment) January 11, 1960 1960 1961 1962 Wholesale driver----- $54.50 plus commission __________________________________ $82 $84 $88 Wholesale foreman--- $5.50 guarantee over average of drivers . Guarantee $84 $87 $90 Retail driver _________ Commission --------------------------------------------- plus $24 $25 $26 Guarantee ---------------------------------------------- $74 $75 $76 Retail foreman------- Average of drivers plus $5.50____________________________ $84 $87 $90 Ice cream driver------ 2 percent commission - ---------- _______________________ plus $46 $47 $48 Guarantee - ------------------------------------------- $82 $84 $88 Paid holidays -------- ---------------------------------------------------------- 2 4 6 NOTE.-All other employees not covered by above schedule will receive a blanket $2 per week increase. The Union claimed that Respondent's proposals were "inadequate" and offered counterproposals. In its counterproposals the Union sought $1 more than Re- spondent had proposed in the blanket-increase proposal, $1 more than Respondent had proposed with respect to drivers, etc., for 1960 together with an understanding that no one would receive less than he was then receiving, four paid holidays instead of two during 1960, a retroactive date of December 1, 1959, vacations as proposed in its original proposals, uniforms at company expense, additional money for em- ployees working more than 45 hours per week, reinstatement of the benefit programs previously mentioned in this report, a health and welfare plan, and a written con- tract incorporating these items and items previously agreed upon. Respondent claimed it could not afford to meet these union proposals and offered the Union a 18 These findings of fact are based upon the testimony of Hanoian. Again there are major differences in the testimony of Hanoian and Seserman. For reasons previously noted the Trial Examiner credits Hanoian's version. 597254-61-vol. 130-75 1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD choice of either the proposals submitted by Respondent at this meeting (set forth above) or a health and welfare program costing $4.20 per man per week and a 1-year contract. The Union rejected this offer stating it was unsatisfactory, un- realistic, and inadequate. Respondent and the Union did not settle their differences at this meeting, and no meetings for the future were then scheduled, although the Union informed Respondent that "a deadline had been set for action against the Company on January 21 if no agreement had been reached." 14 As a result of a telephone call from Seserman to Hanoian a meeting of the parties with representatives of the Federal and State Mediation and Counciliation Services was scheduled for January 25, 1960. On January 25, 1960, the parties (Hanoian and Seserman and the three Almonte brothers) met with State and Federal conciliators. The history of this matter and the positions of the parties (noted earlier herein) were given to the conciliators and it was noted that there were substantial differences insofar as money items were con- cerned. Hanoian again questioned Respondent 's claim of financial inability to meet the union demands and requested that Respondent furnish the Union pertient data bearing upon its claim of inability to pay. Respondent refused to allow the Union to examine its books and records but did offer to let a third party (an independent accountant) see them and report the results of his audit to the Union. The Union rejected this offer.15 On January 26, 1960, Respondent held a meeting of its employees at the plant at which Angelo Almonte (Respondent's secretary and treasurer) told the employees Respondent would curtain operations rather than meet the union demands and sought to induce the employees to abandon the Union.ls On January 27, 1960, Hanoian held a meeting at the plant at which he reviewed for the employees the history of this matter (outlined above). On February 2, 1960, Hanoian and Seserman and the three Almonte brothers met again with the conciliators. This meeting was essentially a repetition of the meeting held on January 25-the Company offered either of its proposals of January 14 and claimed inability to go beyond these proposals and the Union rejected these proposals and asked for proof of inability to pay and the Company refused to come forward with such proof except through a third party. Hanoian suggested arbitra- tion of the matter but Seserman rejected this suggestion. No further meetings were then scheduled.17 On February 9, 1960, Respondent called a meeting of the employees at the plant which Hanoian attended at the request of Respondent. Alfred Almonte (Re- spondent's vice president) opened the meeting with "this meeting was called for the purpose of reporting to you what has transpired up to date between the Union and the Company on the contract negotiations if I say anything illegal I would like Paul Hanoian to stop me." Hanoian stated that such a meeting was illegal but Alfred ".just. laughed and kept on talking." Alfred Almonte said, "We have offered you people a health and welfare program and that's the best we can do we can't afford to give you any more. I urge you to accept it, you can't do any better, we are not making the kind of money to give you any more. In fact, we are losing money, operating in the red again," and then presented Hanoian. Hanoian then gave his version of the differences between Respondent and the Union and stated that he could not understand why a dairy the size of Respondent could not afford more economic benefits and offered to pay for arbitration if Respondent would. go to arbitration. Respondent rejected this offer. There followed a question and answer session in 14 The above findings of fact are based upon the testimony of Hanoian which is cor- roborated in part by Pasquale DiCicco. Here, as in other instances involving conferences attended by Seserman and Hanoian, there are major differences between the testimony of these two individuals. For reasons previously indicated, the Trial Examiner credits Hanolan's version. "There are major differences between Hanoian and Seserman concerning what took place at this meeting and the findings of fact made above are based upon the testimony of Hanoian. See footnote 12. The reference in footnote 12 to equivocation, evasion, and misleading inferences is based primarily upon Seserman 's testimony concerning Respond- ent's position regarding its books and records. The Trial' Examiner considers Seserman's testimony with iespect to this matter considerably less than candid. is Based upon the testimony of Louis Cicione and Pasquale DiCicco. Angelo Almonte denied that he said "anything" at this meeting. 1TThe findings of fact made above are based upon testimony of Hanolan. Here again there are major differences between his testimony and the testimony of Seserman. FEDERAL DAIRY COMPANY, INC. 1171 which Respondent again offered its proposals of January 14 and claimed inability to pay for more economic benefits.18 On February 17, 1960, Hanoian telephoned Henry Almonte and requested a meeting on or about February 25 to discuss further contract terms. Almonte told Hanoian that he (Almonte) "was going out of town with his wife, his wife was ill, and he was tired" and that "the best I can do is maybe March 23rd." Hanoiah com- plained about this long delay and Almonte then suggested March 18. Hanoian com- plained again and asked for an earlier meeting with the other two Almonte brothers and Seserman but Henry Almonte refused to honor this request. Sometime between this date (February 17, 1960) and the date of the strike (February 22, 1960) Henry Almonte went to Florida. By letter dated February 18, 1960, from Hanoian to Respondent's employees, Hanoian complained about Respondent's conduct (noted above) and scheduled a meeting for February 21, 1960, to discuss the matter. At a union meeting on February 21, 1960, Hanoian told Respondent's employees about his efforts to negotiate and about the telephone conversation with Henry Almonte on February 17 and the employees voted to strike at midnight that date (Feb- ruary 21, 1960). The strike lasted until April 4, 1960. On the latter date the Union, on behalf of the striking employees, informed Respondent that the strike "is terminated" and requested reinstatement to the jobs the strikers held at the commence- ment of the strike or to substantially equivalent employment. At the same time each individual striker submitted a similar request for reinstatement. The persons whose names appear on Appendix A have not been reinstated.19 .During the early days of the strike (and prior to February 25, 1960), Respondent urged the striking employees to abandon the Union and come back to work. One of the grounds that Respondent used in appealing to the strikers to abandon the Union was that the Union was dead insofar as Respondent was concerned and that Re- spondent would not negotiate with, or sign a contract with, the Union. By letter dated February 25, 1960, Respondent advised its striking employees; DEAR SIR: It is indeed unfortunate that the union chose to strike our plant rather than accept the terms and conditions of employment offered them on your behalf. We have strived for the past forty years to build up a business that has given stable and lasting employment to all, and it is not easy for us to see all our efforts over the years shattered by demands that could not possibly be' met without destroying the very company that supports us all. We certainly would like to have all our former employees return to their jobs, and at'the same time regret that a suitable agreement with the union could not -have been worked out. We also wish to inform you that we hold no bad feeling against you for your activity on behalf of the union nor do we intend to discriminate against you in any' form for whatever activity you were or are engaged in on their behalf. However we must continue to operate our business as best we can under all the conditions that face us: To -do otherwise would be to abandon those of our employees who desire to continue working for us. This we shall never do so long as it is in our power to continue our operations. If you are desirous of returning to work please do so by February 29, 1960. After this date we shall assume that,you are not willing to work for us under present conditions and shall offer your job to others who may be inclined to do so. 'Respondent'held open until February 29, 1960, the jobs of the strikers and there- after replaced the strikers with permanent replacements. However, Respondent did thereafter' offer employment to some of the strikers. Conclusions On the basis of the foregoing findings of fact, the Trial Examiner concludes that Respondent has not met the statutory obligation to bargain in good faith. That such 'obligation has not been met is established by Respondent's refusal to supply pertinent and relevant financial data upon request by the Union, by Respondent's unilateral 18 Based upon the testimony of Hanoian, Pasquale DiCicco, and Frank Buono, which is 'corroborated in part by Henry and Angelo Almonte. w After the strike ended some of the employees listed in Appendix A were offered lobs but not reinstatement. 1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD withdrawal of benefits, by Respondent's attempts to bargain directly with its em- ployees, and by Respondent's dilatory tactics in scheduling meetings. While Respondent asserts (in its brief) that Respondent did not take the position it was financially unable to meet the Union's demands, it is plain from the evidence adduced that such a plea within the meaning of N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, was maintained throughout the negotiations. Such being the situation, it was Respondent's obligation, upon request, to furnish the union representative record in- formation and other probative material to substantiate its claim. The offer to furnish appropriate books and records to a third party does not satisfy this obligation. See N.L.R.B. v. Truitt Mfg. Co., supra, and Tennessee Chair Company, Inc., 126 NLRB 1357. As noted above, after the certification of the Union as the bargaining agent and after the Union had been recognized by Respondent as such agent, Respondent uni- laterally eliminated three separate benefit programs. While there maybe_some justi- fication for Respondent's action with respect to the contest for new business since that contest ended prior to the certification (although any money earned thereunder was not payable until December) the unilateral cancellations of the other two pro- grams does not stand in the same position. The unilateral cancellations of these two programs while negotiations with the Union were pending were incompatible with the mode of collective bargaining which the statute contemplates. It was an undercut- tirig of the Union's performance of its function's as the employee's bargaining repre- sentative. See Leisure Lads, Inc., 124 NLRB 431, and Hensley Equipment Com- pany Inc., et al., 121 NLRB 556. Respondent's appeals to its employees to abandon the Union, made at the January 26 and February 9, 1960, meetings and during the early days of the strike, were at- tempts to go behind the designated representative and negotiate with the employees themselves and were subversive of the mode of collective bargaining which the statute has ordained. See Medo Photo Supply Corporation v. N.L.R.B., 321 U.S. 678; Squaw Valley Development Corp., 128 NLRB 9; Orange Premium Stamps (Division of Alfred M. Lewis, Inc.), 127 NLRB 1491; Ralph's Wonder, Inc., 127 NLRB 1280; and Marlboro Electronic Parts Corp., 127 NLRB 122. Whether the appeals to the employees to abandon the strike were a tactical maneuver to get the employees to return to work need not be determined herein because to the extent that the appeals went beyond soliciting employees to return to work and encouraged them to abandon the Union they (the appeals), in the light of the entire record herein, were an under- cutting of the Union as the bargaining agent and an indicia of bad-faith bargaining.:, ,Respondent's refusal to honor the Union's request of February 17, 1960, for an early meeting, in the light of the circumstances then prevailing, amounted to dilatory tactics and further reflects a negation of the collective-bargaining obligations im- posed by the Act. In view of the foregoing, the Trial Examiner concludes and finds that by the aforementioned conduct Respondent failed to meet the statutory obligation to bargain in good faith and thereby violated Section 8(a) (5) and (1) of the Act. In the light of the record as a whole, and the findings of fact made in this report, there is little doubt that Respondent's failure to bargain. in good faith was the, basic cause of the strike which commenced on February 22, 1960; and that te strikingem , ployees were unfair labor practice strikers. As unfair labor :practice strikers, the strikers were entitled to reinstatement upon application 20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE' The activities of the Respondent set forth in section III, above, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of the Act, the Trial Examiner recommends that Respondent, to effectuate the policies of 20 Whether the appeals to the employees to abandon the strike were a tactical maneuver or discharges need not be determined herein in view of the findings and conclusions that the strikers were unfair labor practice strikers entitled to reinstatement and since the remedy which the Trial Examiner deems appropriate is the same whether the employees are viewed as dischargees or unfair labor practice strikers or both. See Butler Knitting Mills, Inc., 127 NLRB 68. FEDERAL DAIRY COMPANY, INC. 1173 the Act, cease and desist therefrom and take the affirmative action hereinafter specified. Having found that Respondent engaged in several distinctive acts constituting viola- tions of Sections 8 (a) (5) and (1) of the Act and believing that the record discloses an, attitude of opposition to the statute 's purposes, the Trial Examiner recommends that Respondent cease and desist from engaging in conduct found violative of the Act and from in any other manner refusing to bargain. Having found that Respondent's striking employees are unfair labor practice strikers entitled to reinstatement on and after April 4 , 1960, the date of their uncon- ditional application for reinstatement , the Trial Examiner recommends that Respond- ent, if it has not already done so, offer the employees listed on Appendix A, full reinstatement to their former or substantially equivalent positions, dismissing, if nec- essary, employees hired since February 22 , 1960, to replace them . If, after the dis- missal of replacement employees , there are not enough positions available for all of the workers, entitled to reinstatement, available positions should be distributed among them, without discrimination because of their union membership , activity, or partici- pation in the strike, on the basis of a seniority system , or any other nondiscriminatory practice with respect to work assignments previously followed by the Respondent in the conduct of its business . The employees for whom no work may be immediately available, after such distribution , should be placed on a preferential hiring list, with priorities determined on the basis of the seniority system or other nondiscriminatory system previously followed by the Respondent in the conduct of its business; they should be offered reinstatement thereafter in accordance with such a list as positions becomt available and before other persons are hired for the work. Reinstatement, as recommended in this report, should be effectuated without prejudice to the seniority of the employees or any of their other rights and privileges . It is also recommended that Respondent reimburse all of the employees entitled to reinstatement for any loss of pay they may have suffered by reason of Respondent's discrimination with respect to them, by payment to each of a sum of money equal to the amount which each normally would have earned as wages during the period from April 4, 1960, the date of Respondent's refusal to reinstate the employees upon their unconditional appli- cation, to the date of the Respondent's offer to reinstate the employees or place them on a preferential hiring list in the manner described above, less his net earnings during that period. Such pay losses shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289. Ultimate Findings and Conclusions In summary, the Trial Examiner finds and concludes: 1. The evidence adduced in this ,proceeding satisfies the Board 's requirements for the assertion of jurisdiction herein. 2. Local Union 64, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, is a labor organization within the meaning of the Act. 3. The following employees of Respondent constitute a unit appropriate for the purposes of collective bargaining within the meaning of the Act: All drivers and plant employees , including route foremen and tank drivers, but excluding office employees, guards, professional employees, and supervisors as defined in the Act. 4. At all times since on or about November 9, 1959, the Union has been the ex- clusive representative of all employees in the aforementioned unit for the purposes of collective bargaining with respect to rates of pay, wages , hours of employment, and other conditions of employment. 5. The evidence adduced establishes that Respondent refused to bargain and thereby engaged in unfair labor practices within the meaning of Section 8(a) (1) and (5) of the Act by refusing to supply pertinent and relevant financial data upon request by the the Union, by unilaterally withdrawing benefits while negotiations with the Union were pending, by attempting to bargain directly with its employees and by dilatory tactics in scheduling meetings. 6. The strike which lasted from February 22 to on or about April 4, 1960, was an unfair labor practice strike. 7. At the conclusion of the strike mentioned in the preceding paragraph the strikers made unconditional applications for reinstatement which Respondent failed and re- fused to honor thereby engaging in unfair labor practices within the meaning of Sec- tion 8 (a)( I) and (3) of the Act. 8. The aforesaid activities are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.]