Mooney Aircraft, Inc.

1194 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD 3. By interfering with, restraining, and coercing Quarles 'in the exercise or rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication ) Mooney Aircraft, Inc. and Lodge 725, International Association of Machinists, AFL-CIO. Cases Nos. 23-CA-1015 and 23-CA- 1056. August 24, 1961 DECISION AND ORDER -On March 16, 1961, Trial Examiner Arnold Ordman issued his In- termediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices as alleged in the complaint and recommended that the complaint be dismissed with respect to these allegations. Thereafter the General Counsel filed exceptions to the Intermediate Report and a supporting brief. No exceptions were filed by the Respondent. Pursuant to Section 3(b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [Members Rodgers, Leedom, and Fanning]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the General Counsel's exceptions and brief, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner, except as modified herein. THE REMEDY Having found that the Respondent has engaged in and is engaging in certain unfair labor practices, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent by its vice president, Ander- son, and the chief of its planning department, McDaniel , reprimanded 1 The Respondent filed no exceptions to the findings and conclusions of the Trial Examiner that the Respondent had engaged in certain unfair labor practices alleged in the complaint Accordingly, the Board pro forma adopts all these findings and conclu- sions of the Trial Examiner. 132 NLRB No. 100. MOONEY AIRCRAFT, INC. 1195 employees because they elected the Union- as their bargaining repre- sentative, and warned them that it has the means at its disposal to frustrate the processes of collective bargaining with a resultant layoff of employees and the closing down of the plant, all in violation of Section 8 (a) (1) of the Act. Accordingly, we shall order the Respond- ent to cease and desist from that conduct: The broad pattern of the violations found evinces a general hostility on the Respondent's part to the principles of collective bargaining and to the right of employees to engage in legitimate concerted activities for purposes of organization or other mutual aid and protection. Ac- cordingly, in order to make the remedy coextensive with the threat of future unfair labor practices, we shall, as recommended by the Trial Examiner, issue a broad order enjoining all forms of unlawful inter- ference with rights guaranteed employees by Section 7 of the Act. - It has been found that the Respondent defaulted in its statutory obligation to reinstate 'the strikers, on whose behalf the Union on July 9, 1960, applied unconditionally for reinstatement, by: (a) in- sisting that they make individual applications for the return to work, and (b) by reinstating them to employment other than on a 5-day, 40-hour-week basis, which had been in effect before the strike. Ac- cordingly, we shall order that the Respondent make these strikers whole for any loss of pay they may have suffered by reason of the be- lated and incomplete reinstatement by payment to each of them a sum of money which he would have earned as wages based on a 5-day, 40-hour workweek during the period from July 11, the next working day following the Union's unconditional application for reinstatement, to the day of complete reinstatement, less the wages received from the Respondent during the period of incomplete reinstatement. It has been found that by discharging Donald Anderson on April 7, 1960, and denying him reinstatement upon request, the Respondent violated Section 8(a) (3) and (1) of the Act. As Anderson had prior to his discharge joined the other strikers and as it appears from the record that he would not have abandoned the-strike prior to its termi- nation, his backpay shall be computed from July 11, 1960, when he unconditionally applied for reinstatement, until July 25, 1960, when he was reinstated to his former or equivalent position less his earnings during the interim period. 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 the Respondent, Mooney Aircraft, Inc., its officers, agents, successors, and assigns, shall : 1196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from : (a) Refusing to bargain collectively in good faith with Lodge 725, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of its production and maintenance em- ployees with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. (b) Discharging or refusing to reinstate employees to their former or substantially equivalent positions for the reason that they engage in a strike or concerted activities protected by the Act. (c) Reprimanding and threatening employees that the Union's victory at the polls is tantamount to a slap in the Respondent's face and that it might be followed by a layoff of employees. (d) Warning and threatening employees that the bargaining with the Union could be dragged for years, during which time union mem- bers might be laid off, and an economic strike promoted with a result- ant replacement of strikers by "right thinking" people. *(e) Warning employees during the bargaining negotiations that the Respondent has no intention of signing a contract with the Union, and that it would close the plant before it would sign a contract. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist Lodge 725, International Asso- ciation of Machinists, AFL-CIO, 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 bar- gaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively in good faith with Lodge 725, International Association of Machinists, AFL-CIO, as the ex- clusive bargaining representative of its production and maintenance employees with respect-to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement. (b) Reinstate and make whole, as provided in The Remedy section of this Order, all strikers, including Donald R. Anderson, who have made an unconditional request for reinstatement. (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 amount of backpay due under the terms of this Order. MOONEY AIRCRAFT, INC. 1197 (d) Post at its office in Kerrville, Texas, copies of the notice at- tached hereto marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Twenty-third Region, shall, after being duly signed by the Company 's representative, be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, .or covered by any other material. (e) Notify the Regional Director for the Twenty-third Region, in writing, within 10 days from the date of the Order , what steps have been taken to comply therewith. IT IS FURTHER ORDERED that the allegation that Respondent violated Section 8 (a) (3) and ( 1) of the Act by refusing to reemploy Thomas F. Peiser be dismissed. IIn 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, upon request, bargain collectively in good faith with Lodge 725, International Association of Machinists, AFL-CIO, as the exclusive bargaining representative of our production and maintenance employees with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. WE WILL reinstate to their former and substantially equivalent positions, and make whole for any failure to do so heretofore, all strikers, including Donald R. Anderson, who have made an un- conditional request for reinstatement. WE WILL NOT reprimand or threaten our employees with a lay- off or closing down of the plant because they have engaged in lawful concerted activities; warn our employees that we will never sign a contract with Lodge 725, International Association of Machinists, AFL-CIO, or that the bargaining with the said Union could be dragged for years during which time union mem- bers might be laid off or replaced by "right thinking" people; or in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form 1198 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD labor organizations, to join or assist the said Union , or any other labor organization, to bargain collectively through concerted activities for the purposes of collective bargaining or mutual aid or protection ; or to refrain from any and all such activities. MOONEY AIRCRAFT, 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 STATEMENT OF THE CASE This proceeding was heard before the duly designated Trial Examiner in Freder- icksburg, Texas, on October 10, 1960, and in Kerrville, Texas, on October 11, 12, and 13, 1960, on a consolidated complaint issued by the General Counsel of the National Labor Relations Board and on answer of Mooney Aircraft, Inc., Respondent herein. The issues litigated were whether Respondent had violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended. At the close of the hearing, the parties waived oral argument. Subsequently, General Counsel filed a brief which has been duly considered. Upon the entire record, and upon my observation of the witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent is a Kansas corporation with its principal office and place of business in Kerrville, Texas, where it is engaged in the manufacture, sale, and distribution of small aircraft. During the 12-month period preceding the issuance of the complaint herein, Respondent in the course of its operations made interstate purchases of ma- terials and equipment exceeding $50,000 in value, and likewise made interstate sales of finished products, principally aircraft, totaling more than $50,000 in value. Re- spondent in its anwer to the complaint admits the foregoing facts and admits also that it is engaged in commerce within the meaning of the Act. I so find. II. THE LABOR ORGANIZATION INVOLVED Respondent admits, and I find, that Lodge 725, International Association of Machinists, AFL-CIO, the Charging Party, herein called the Union, is a labor organi- zation within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and issues On June 24, 1959, the Union filed with the Board a petition for certification as bar- gaining representative of Respondent's production and maintenance employees at its Kerrville, Texas, plant. Pursuant to a consent-election agreement between the Union and Respondent, approved by the Board's Regional Director, an election was held among these employees on July 24, 1959. This election was set aside following an investigation of objections, and a second election was conducted on September 10, 1959. Pursuant to the results of the second election, the Board, on September 18, 1959, formally certified the Union as exclusive bargaining representative of all pro- duction and maintenance employees of Respondent at its Kerrville, Texas, plant, excluding office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act. The parties agree, and I find, that the foregoing grouping of employees constitutes an appropriate bargaining unit for purposes of col- lective bargaining. Shortly after the certification, and at the Union's request, bargaining negotiations began between Respondent and the Union. Although these negotiations continued, with occasional breaks, until the time of the hearing in the instant case, no agreement MOONEY AIRCRAFT, INC. 1199 has resulted. On January 28, 1960, the Union filed charges with the Board alleging a refusal by Respondent to bargain in good faith in violation of Section 8(a) (1) and (5) of the Act. The Union withdrew these charges on March 8, 1960. On April 5, 1960, the Union again filed charges alleging a refusal to bargain (Case No. 23-CA- 1015). On the following day, April 6, 1960, Respondent's employees went on strike. Subsequently, the Union filed amended charges in Case No. 23-CA-1015, alleging, in addition to the refusal to bargain, certain discriminatory conduct by Respondent in violation of Section 8(a)(3) and (1) of the Act. These charges and amended charges culminated in an informal settlement agreement executed by Respondent and the Union on June 10, 1960, and approved by the Board's Regional Director on June 16, 1960. Respondent undertook in the settlement agreement to post, and comply with, provisions of a notice stating, inter alia, that it would not refuse to bargain with the Union or engage in other conduct in derogation of its duty to bargain in good faith, and that it would reinstate and make whole employees who went on strike on or after April 6, 1960. The settlement agreement also contained a provision stating that " [c] ontingent upon compliance with the terms and provisions hereof, no further action shall be taken in the above case." On or about July 9, 1960, the strikers offered unconditionally to return to work. On July 18, 1960, the Union filed new charges alleging a discrimination by Respond- ent against Donald R. Anderson, an employee, in violation of Section 8-(a) (1) and (3) of the Act (Case No. 23-CA-1055, not published in NLRB volumes). One week later, on July 25, 1960, the Union again filed charges (Case No. 23-CA-1056) alleging that Respondent on and after June 18, 1960 (2 days after approval of the settlement agreement) was refusing to bargain in good faith with the Union and was discriminating against returned strikers in violation of Section 8(a) (1), (3), and (5) of the Act. Respondent, in its answer, denies in substance that it engaged or was engaging in unfair labor practices. Set forth below is a summary of the relevant evidence on the several issues pre- sented as well as findings and conclusions based thereon. B. The refusal to bargain in good faith The bargaining negotiations in the instant case, initiated at the Union's request, began in October 1959 and were still continuing at the time of the instant hearing. Between 30 and 40 bargaining sessions were held, including sessions prior to the strike of April 6, 1960, sessions during the strike, and sessions thereafter. At no time was agreement achieved. General Counsel contends that the failure to achieve agreement was due to Respondent's failure to bargain in good faith. In support of this contention, General Counsel alleged in his complaint, and adduced evidence in an effort to establish, that Respondent during the course of bargaining : (1) Stated to its employees that it would never sign a contract with the union; (2) stated to its em- ployees that it intended to force the Union to strike, after which it would hire new employees to replace the strikers; (3) engaged in dilatory and evasive tactics designed to abort the collective-bargaining process and avoid an agreement with the Union; (4) insisted adamantly on a 5-year contract without a wage-reopening clause ; (5) re- fused to furnish financial data to the Union, upon proper request, to substantiate the claim of inability to grant wage increases; (6) refused to discuss counterproposals submitted by the Union; (7) repeatedly withdrew at bargaining meetings concessions and commitments made at previous bargaining meetings ; and (8 ) unilaterally on July 31, 1960, terminated a health insurance plan which Respondent itself had sub- mitted to the Union shortly before the strike. A detailed and chronological recital of the proceedings at each of the bargaining sessions and of other acts and statements by Respondent would serve no useful pur- pose. The essential pattern of conduct here relevant will appear from a summary of the evidence under the general headings below. 1. Respondent's statements that it would not sign a contract with the Union and that it would force a strike and hire new employees to replace the strikers At or about the time of the elections which culminated in the certification of the Union, Respondent through its president, Hal Rachal, and its vice president in charge of production, Herb Anderson, made speeches to the employees indicating its oppo- sition to the unionization of its employees and disparaging the Union. One such speech was made by Herb Anderson to all the employees over a plant loudspeaker system just prior to the first election. According to employee W. C. McLean, presi- dent of the Union, Anderson purported to read a section of the Taft-Hartley Act and some State laws regarding striking. Anderson went on to say, according to McLean, that a strike was the only weapon the Union had with which to fight the Company; 1200 DECISIONS OF- NATIONAL LABOR RELATIONS BOARD that since economic strikers could be replaced, this was not a very effective weapon; and that if the employees went on strike, they would be replaced. Employee Spicer also testified concerning this speech. According to Spicer, Anderson said the Com- pany -was obligated only to meet with the Union, that it did not have to reach an agreement, and 'that it could "stall" for years if it chose. Anderson, who left the employ of the Company on or about May 15, 1960, did not testify at the hearing. I credit McLean's testimony. I find that Anderson in substance read or sum- marized controlling law to the effect that economic strikers could be replaced and that Respondent would replace economic strikers. While this statement manifested Respondent's opposition to unionization, I do not believe Anderson's remarks, as related by McLean, were violative of the Act. On the other hand, as related by employee Spicer, Anderson's remarks that the Company was obligated only to meet with the Union, that it did not have to reach an agreement with the Union, and that it could "stall'-' for years, could fairly be interpreted as an admonition to the employ- ees that their efforts to engage in collective bargaining by selecting the Union as their representative would be a futility. However, my appraisal of Spicer's testi- mony in this regard inclines me to the belief that he was confusing Anderson's remarks on this occasion with Anderson's later remarks at a meeting of foremen and assistant foremen. McLean in his detailed recital of Anderson's speech on this occasion made no mention of the remarks reported by Spicer. Accordingly, I find that Herb Anderson's remarks over the loudspeaker system on the eve of the first election were not violative of the Act.' I reach a contrary conclusion as to Herb Anderson's remarks at the meeting of foremen and assistant foremen. That meeting was called by Anderson immediately after the second election in which the employees selected the Union as their bar- gaining representative. For the first and, so far as appears, the only time, assistant foremen were invited to attend a foremen's meeting? According to Spicer, Anderson said on that occasion that the Union had been voted in; that President Rachal felt this was a slap in the face by the employees; and that there would be a layoff as soon as the stockpile of planes justified it. Anderson stated further, according to Spicer, that while the Company had to meet with the Union, it did not have to reach an agreement; that bargaining could be dragged out for 10 years during which members would get 'out of the Union or be laid off; that after a year a petition for a new election could be circulated; and that if this did not work, an economic strike could be promoted and the strikers replaced with "right thinking" people. Foreman Collazo, who was also in attendance at this meeting, gave a similar version of Anderson's remarks. On the other hand, Richard W. Tonnessen, Respondent's pro- duction superintendent, and William C. McDaniel, its acting chief planner, gave a different account. According to them, Anderson spoke only of production problems and scheduling problems, and made no mention concerning how Respondent would handle negotiations with the Union. The testimony given by Spicer and Collazo is the more credible, explains the presence at the meeting of the assistant foremen, and is also corroborated in large part by the course of Respondent's later conduct. Accordingly, I find that Anderson made the remarks attributed to him by Spicer and Collazo, and that Respondent thereby revealed at the very outset its intention to frustrate collective bargaining and interfere with the statutory rights of its employ- ees. See Great Southern Trucking Co. v. N.L.R.B., 127 F. 2d 180, 185 (C.A. 4), cert. denied 317 U.S. 652. Further evidence of Respondent's attitude in this regard is revealed by statements of William C. McDaniel who was in charge of the planning department in Respond- ent's plant. After bargaining negotiations began and before the strike of April 6, 1960, McDaniel told employee Donald R. Anderson in the presence of several bystanders that Respondent had no intention of signing a contract with the Union. McDaniel also told employee David A. Anderson in April or May 1960 that Respond- ent would close the plant down before it would sign a contract. McDaniel did not ' This is also the situation with respect to two speeches made by President Hal Rachal, one to the employees on the day of the first election and the other at an "open house" in Respondent 's plant between the first and second elections In both instances Rachal disparaged the union but his remarks were free of threat of reprisal or force or promise of benefit 2 Assistant foremen are members of the bargaining unit certified by the Board. The parties are in agreement that assistant foremen are not supervisors within the meaning of the Act. Actually, they are regularly employed on specific rank-and-file jobs and only on occasion fill in for absent foremen . See Couaina Associates, Inc v. N L.R.B , 283 F 2d 242, 243-244 (CA 2). MOONEY AIRCRAFT, INC. 1201 deny making the foregoing statements although he testified at the hearing in Respond- ent's behalf. I find that he made these statements and that they were violative of the Act. 2. Respondent's dilatory and evasive tactics during the bargaining negotiations The early bargaining negotiations between the Union and Respondent were con- ducted on the latter's behalf by Herb Anderson, production superintendent. How- ever, at a later stage in the negotiations , Hal Rachal, Respondent's president, dis- closed that Anderson had no authority to bind Respondent to any matter which might involve Respondent in any costs or expenditures . In the early bargaining conferences in October and November 1959, Anderson did discuss provisions in the Union's proposed contract and agreement was reached on a number of such provi- sions which did not involve costs. But whenever a cost item was raised, such as wages, vacations, holidays, insurance, sick leave, and the like, Anderson took the position that these were cost items and that Respondent would not entertain or even discuss any proposal which entailed benefits not presently being granted to the employees or which would involve additional expenditures of any kind. In subse- quent negotiating sessions the Union reduced the economic demands contained in its original contract proposal , but Anderson persisted in the position that Respondent would not sign any contract incorporating economic benefits not presently being granted by Respondent. In the bargaining session of November 11, 1959, considerable discussion took place relating to Respondent's earnings and its ability to pay increased costs. Anderson agreed to the Union's demand that Respondent supply financial data in support of its position but declared that whatever this information would reveal, no increase in pay or fringe benefits would be given. Beginning in December 1959, at the request of the Union, a Federal mediator participated in the bargaining sessions .3 Respondent, however, did not change its position . At the January 8, 1960, meeting, Anderson stated in the presence of the Federal mediator that "further negotiations were fruitless unless the union was ready to sign a contract under the conditions that were existing in the company at this time." During this same period the Union suggested that unresolved issues be submitted to arbitration. Respondent's president, Rachal, who at this time began to participate personally in the bargaining negotiations , agreed that arbitration would be a fair and impartial way to resolve issues. Discussion then arose as to the method of selecting an arbitrator. Rachal suggested that the Union name an arbitrator forthwith that would be acceptable to the Union and that Respondent would investigate the arbitra- tor and inform the Union within a reasonable time whether the named arbitrator was acceptable to Respondent . Rachal, for his part, rejected a request that Respond- ent initially name the arbitrator. In any event, the Union, by letter dated December 31, 1959, submitted to Respondent the name of an arbitrator coupled with a state- ment that if Respondent deemed the named arbitrator unacceptable, the Union would accept any member of the American Board of Arbitration or the Federal Mediation and Conciliation Service recommended by Respondent to resolve the remaining issues. At the January 8, 1960, bargaining conference the Union, having received no reply to its letter, asked Anderson when a reply could be expected. Anderson responded that in his opinion no decision would be reached in less than 30 days and vouchsafed the explanation that if Rachal had any desire to reach an agreement, the decision could be made in a much shorter time, but since Rachal was not interested in having a contract, he would delay the matter as long as possible. On the following day, January 9, Rachal wrote to the Union asking for a "verified list of all your dues paying members in good standing" so that Respondent could investigate whether the "proposed arbitrator is in any manner associated with or related to any member of the International Association of Machinists." As already noted, the Union filed refusal to bargain charges on January 28, 1960. At the March 5, 1960, bargaining session V. M. Cameron, an IAM Grand Lodge representative, entered the negotiations at the request of the Union, a procedure followed in situations where unfair labor practice charges are pending or a strike is imminent. Cameron suggested a temporary break in negotiations while both sides reevaluated their positions . It was agreed to drop the arbitration proposal. Cameron also undertook to withdraw the pending charges in order to have a better atmosphere when negotiations resumed. 8 Anderson had been asked by the Union at a previous meeting to join in a request for a Federal mediator. Anderson replied that the Union could do so but that Respondent would not join in the request 1202 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Later resumption of bargaining. negotiations beginning March 19, 1960, again proved fruitless. The Union scaled down its economic demands considerably; however, Respondent did not budge from its earlier position and refused even to discuss the new union proposals. At the following bargaining session, March 26, 1960, Respondent submitted its first and only proposed agreement. This proposal included all noncost items as to which the parties had previously agreed but as to cost items provided only those wages and benefits which had previously been in effect. A significant addition, however, was that Respondent's proposed agreement was for a 5-year term with no reopening clause. The union negotiators protested vehemently to this 5-year provision which would bind the employees for 5 years to their present pay scale and benefits. However, Respondent insisted that its proposed agreement be submitted to the membership of the Union. The membership, as the union negotiators foretold, rejected the proposal. The last meeting before the strike was held on March 30, 1960. The Union made a final effort to secure a contract for a shorter term and for that purpose reformulated minimal demands. Anderson refused to negotiate further, refused also to telephone Rachal who was not present at the March 30 meeting, and told the Union that its proposed agreement was its last offer. "You can take it or leave it." The strike began on April 6. Several months earlier, on December 29, 1959, at a special meeting of the Union, the membership had voted to authorize its negotiating committee to call a strike if in the committee's opinion, Respondent continued its refusal to bargain in good faith. On April 5, the membership, having been fully informed of the status of the bargaining, reaffirmed their strike vote. The strike commenced the following morning and pickets were stationed at the Mooney premises. Negotiating sessions continued during and after the strike. The bulk of the negotiations on the part of Respondent beginning the latter part of June were con- ducted by Rachal himself, Herb Anderson having left Respondent's employ. Again the negotiations were to no avail. In addition to resisting any proposal which might entail any expenditure on Respondent's part, Rachal insisted upon renegotiating every single item in the proposed contract, refused in several instances to accept provisions to which Respondent had previously agreed and which Respondent itself had proposed, sought to have the union membership hold a vote as to each item as it was negotiated, and persisted in the position that any agreement reached as to any item was tentative only and conditioned upon consummation of an entire agree- ment. As to Respondent's change of position on items previously agreed upon, Rachal explained, variously, that time had passed, that conditions had changed, that he had reconsidered the matters, and that he, not Anderson, was now doing the negotiating. After several bargaining sessions, the negotiating meetings became wholly perfunctory, involving no more than questions as to whether there was a change in position. This was the posture of the bargaining at the time of the instant hearing. Appraising the foregoing course of conduct, it is apparent, and I find, that without regard to possible economic justification for Respondent's refusal to agree to items involving increased costs on its part, Respondent's whole pattern of behavior at the bargaining sessions revealed a fixed determination not to enter into any agreement at all. The statutory duty to bargain calls for something more than merely meeting with union representatives to state that the employer cannot or will not change its position. And while the statute does not require agreement or concessions, it cer- tainly imposes the obligation to make some reasonable effort to compose differences. As the Supreme Court recently said in N.L.R.B. v. Insurance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U S. 477 at 485, Collective bargaining . . . is not simply an occasion for purely formal meet- ings between management and labor, while each maintains an attitude of "take it or leave it"; it presupposes a desire to reach ultimate agreement, to enter into a collective bargaining contract. Without belaboring the point, I think it clear from the foregoing facts, which are virtually undisputed, that Respondent did not bargain in good faith with the Union and that it thereby violated Section 8(a)(5) and (1) of the Act. I so find. 3. Other conduct by Respondent indicative of a refusal to bargain in good faith General Counsel, in his brief to the Trial Examiner, cites and relies upon other conduct by Respondent to demonstrate lack of good faith in bargaining negotiations. To the extent General Counsel's contentions in these respects are found herein to MOONEY AIRCRAFT, INC. 1203 have merit, they, of course, constitute added support for the unfair labor practice finding heretofore made. Taking up these matters seriatim, General Counsel urges that Respondent acted in bad faith when it asserted an inability to pay wage increases although during the same period it granted raises to the employees in its subassembly department. The evidence shows, preliminarily, that at a bargaining session early in November 1959 when various items in the Union's proposed agreement were being discussed, Herb Anderson stated that Respondent had had a new pay scale under consideration but that when the Union came in, the matter was dropped. Anderson also stated definitively on this occasion that there "will not be any increase in pay now or in the foreseeable future." As already shown, Respondent maintained this position throughout all the succeeding bargaining negotiations. Nevertheless, in July or August of 1960 Respondent unilaterally increased the scale of wages in the sub- assembly department of its plant.. Rachal informed the Union of this increase at the bargaining session of July 30, 1960. General Counsel argues that this entire pattern of conduct was intended as a disparagement of the Union in the eyes of the employees and that considered in connection with Respondent's other conduct, it was further indication of Respondent's lack of good faith in the bargaining negotiations. I find merit in General Counsel's contention. See N.L.R.B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701, 703 (C.A. 4), cert. denied 340 U.S. 811. General Counsel also argues that Respondent was derelict in its obligation to furnish the Union with financial data to substantiate its claim of inability to grant economic benefits and was likewise derelict in respect to furnishing the Union with a list of employees, their seniority dates, wage rates, and all fringe benefits. The evidence reveals that the Union's first request for financial data was made at the bargaining session of November 11, 1959, after some discussion of Respondent's profit status. Respondent did, albeit reluctantly, furnish such data on December 1, 1959, and furnished additional financial data on February 20, 1960. General Counsel complains that Respondent unduly delayed in furnishing this data and did not prop- erly present or arrange it. It must be remembered, however, that the type of data the Union sought here was complex, not too readily assembled, and that honest dif- ferences might arise as to how such data should be assembled and interpreted. Under all the circumstances, therefore, and applying the test laid down in N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, 153, that in this area the determination in each case "must turn upon its particular facts," I find that General Counsel has not sustained the burden of establishing that Respondent defaulted in his obligation to furnish financial data. The situation respecting Respondent's delay in furnishing the Union with a list of its employees, their seniority dates, wage rates, and fringe benefits is less favorable to Respondent. That information was, of course, essential for the Union in order that it might properly discharge its bargaining function. N.L.R.B. v. F. W. Wool- worth Co., 352 U.S. 938, reversing 235 F. 2d 319. Moreover, the data sought was readily available and apparently not difficult to compile. The Union formally re- quested this information in its letter of September 26, 1959. It repeated this request at the November 11, 1959, session and Herb Anderson rejected the request on the ground that the data was not relevant to the negotiations and of no concern to the Union. Respondent did finally furnish the information but not until February 20, 1960, 5 months after the initial request and 3 months after the request was renewed. I find that here, as in Reed & Prince Manufacturing Company, 96 NLRB 850, 853, affd. 205 F. 2d 131 (C.A. 1), cert. denied 346 U.S. 887, Respondent's "delay in supplying the requested data may be viewed legitimately as . . . evidence of bad faith to be considered in the making of [the] over-all finding herein." Another facet of Respondent's conduct upon which General Counsel relies to establish'that Respondent was bargaining in bad faith was Respondent's unilateral cessation of its health and insurance plan. Under this plan, initiated by Respondent before the advent of the Union, Respondent paid 25 percent of the medical and hospital bills for employees who were on the company payroll at least 1 year and 50 percent of such bills who were employed by Respondent 2 years or more. At the November 9, 1959, bargaining session, in the course of discussing a proposed contract provision regarding health and welfare, Herb Anderson announced that he could give no assurance that the health and insurance plan already in effect and described above would not be canceled as of January 1, 1960. Actually, Respondent in December 1959 extended the plan to July 31, 1960, and on March 26, 1960, submit- ted to the Union as part of its own contract proposal a provision that the "insurance Plan that is now in effect will remain in effect . . . unless changes are mutually agreed upon between the Company and the Union." Nevertheless, on July 31, 1960, 614913-62-vol. 132-77 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent unilaterally discontinued the plan, allegedly for financial reasons 4 The obligation of an employer to bargain concerning matters of this kind is too well settled to require extensive citation of authority. See, e.g., W. W. Cross and Company v. N.L.R.B., 174 F. 2d 875 (C.A. 1). By parity of reasoning, unilateral action is violative of that obligation. Moreover, in the context of the present case, as General Counsel correctly contends, it is further evidence of Respondent's bad faith in its collective-bargaining negotiations .5 C. Discrimination against strikers 1. The strike: its cause and prolongation The complaint alleges that Respondent by its unlawful refusal to bargain caused and prolonged the strike of its employees which began on April 6, 1960. As already set forth, the union membership had voted both on December 29, 1959, and on April 5, 1960, to authorize its negotiating committee to call a strike if, in the com- mittee's view, Respondent continued its refusal to bargain in good faith. The proposed strike had likewise received the approval of the Union's parent Inter- national. The issue here, however, is not whether the membership or its negotiating committee thought or believed that Respondent was engaging in an unlawful refusal to bargain as of the time the employees went on strike but, rather, whether Respond- ent was as a matter of fact and law engaged at that time in an unlawful refusal to bargain. If the latter question is answered in the affirmative, it then becomes rele- vant whether the employees struck for that reason or for some other reason. Addressing myself to the first question I find that Respondent had engaged in a refusal to bargain in good faith within the meaning of the Act prior to the time of the strike. To recapitulate briefly, Respondent by that time had not only publicly stated its antipathy to the Union but had emphasized at a meeting at which non- supervisory employees were present that it intended to drag out bargaining negotia- tions in order to get rid of the Union or, alternatively, that it would bring about an economic strike and replace the strikers with "right thinking" people. Statements were also made to employees prior to the strike to the general effect that Respondent would never sign a contract with the Union. The course of conduct in which Re- spondent engaged during the bargaining negotiations prior to the strike was, in sum, an implementation of the foregoing statements. Thus, Respondent throughout ada- mantly refused to discuss any items in a proposed contract which in its view would entail expenditures on its part and insisted that unless the Union yielded completely in this regard, further negotiations were futile. Respondent's extreme positions with respect to the selection of an arbitrator likewise betrayed its intention to stalemate negotiations as did its refusal to cooperate in any manner when the Union repeatedly and substantially scaled down its economic demands. By way of emphasis, Respond- ent at the March 26, 1960, meeting submitted its only proposed agreement which provided for no economic benefits whatever beyond those then existing and sought to bind the employees in that status for a 5-year term with no recourse. Respond- ent's insistence that this proposal be submitted to the union membership for a vote and its insistence at the March 30, 1960, meeting that the Union could "take it or leave it" strongly suggests that Respondent anticipated or hoped that the strike which it had previously contemplated would result. Even without regard to Respondent's 'At the same time Respondent announced that it was going to discontinue making payroll deductions for work clothes, tools, and Blue Cross and Blue Shield insurance premiums. Respondent had had this practice in effect before the advent of the Union. 5 General Counsel also relies on the allegedly inconsistent positions taken by Respond- ent with respect to its refusal to agree to the Union's dues checkoff proposal. In the course of the bargaining sessions , Respondent predicated its refusal here, like its refusal as to many other items, on the ground that the proposal would entail additional costs to the Company. At the hearing, however, Rachal testified that be had always been opposed to dues checkoff because such a system would reveal which employees were union mem- bers and which were not, and that union feelings were strong in the area. While the latter reason strikes the Trial Examiner as less than convincing, it does not follow either that it was not sincerly advanced or that it was inconsistent with the "cost" factor previously relied upon. 'Similarly, I am unable to accept General Counsel's contention that the absence of Rachal from the bargaining sessions of September 17 and October 8, 1960, were part of Respondent's overall plan to frustrate the bargaining process. In view of Rachal 's regu- lar attendance at the other bargaining sessions and the nature of the explanations given for his absence at the two meetings in question, I believe a finding of bad faith as to the latter would be speculative and unwarranted. MOONEY AIRCRAFT, INC. 1205 contemporaneous refusal to furnish wage and seniority data until February 20, 1960, Respondent's refusal to bargain in good faith prior to the strike was firmly established. Equally clear on the record , I find, is the evidence that the strike was caused by this refusal to bargain in good faith . Indeed, the final strike vote was taken at the meeting of April 5, 1960, after the employees had been fully informed of the status of the bargaining. "At that point the Union had to strike or abandon its role as the certified bargaining representative of the employees ." N.L.R.B. v. E. L. Dell, Jr., Trading as Waycross Machine Shop, 283 F. 2d 733, 740-741 (C.A. 5). It follows, moreover, that Respondent's continuation of its unlawful refusal to bargain pro- longed the strike. 2. Respondent's failure to reinstate the strikers to their former or substantially equivalent positions As unfair labor practice strikers, Respondent's employees were, of course, entitled, upon request, to reinstatement to their former or substantially equivalent positions, discharging, if necessary, any employees hired to replace them. Mastro Plastics Corp. et al. v. N.L.R.B., 350 U.S. 270, 278, and cases cited. The strike began on April 6, 1960. On July 9, 1960, the Union made an unconditional request on behalf of the strikers for reinstatement. Respondent insisted, however, that the strikers make individual applications to return to work. This was done and the bulk of the strikers returned to work on July 18, 1960, or shortly thereafter. Prior thereto, however, Respondent had hired a substantial number of replacements for the strikers so that its total employee complement on July 18, 1960, including returning strikers and replacements, was considerably larger than it had been before the strike. In any event, with the exception of a few scattered departments, all employees of Re- spondent went on a shortened work schedule as of July 18, 1960, consisting of a 4-day, 32-hour week instead of the 5-day, 40-hour week which had previously been in effect. This shortened workweek continued for several months. General Counsel argues that by reducing the workweek Respondent, pro tanto, denied the returning strikers reinstatement to their former or substantially equivalent jobs, and that this denial arose because of Respondent's failure to discharge, to the extent necessary, replacements hired during the course of the strike. Respondent, on the other hand, adduced evidence to show that for several months prior to July 18, 19,60, Respondent had been contemplating, for reasons of economic need, a speedup in its production from the rate of 1 airplane per 12 working hours to the rate of 1 airplane per 8 working hours; that Respondent was also making a changeover from the production of an old model airplane to a new model airplane; and that while these problems were current, the strike occurred. According to Ralph W. Harmon, Respondent's vice president in charge of engineering and manufacturing, Respondent determined to go on a 4-day week solely for economic reasons. Harmon acknowl- edged, however, that this determination was consummated about the time Respondent received notice that the strikers were returning and that it would have been virtually impossible to operate on a shortened schedule if the strikers had not returned. More- over, by this method Respondent was able to keep on its payroll a larger complement of employees to meet anticipated future manpower needs. The short of the matter is, however, that Respondent was obligated under the Act to reinstate its employees to their former jobs even if it had to discharge their replace- ments in order to do so. N.L.R.B. v. E. L. Dell, Jr., Trading as Waycross Machine Shop, supra, 283 F. 2d at 741. To the extent that it retained the replacements and thereby left inadequate work to enable it to effect complete reinstatement, it defaulted in its statutory obligation. Respondent cannot now evade that obligation on the ground that it was more advantageous for it to retain both the strikers and their replacements on an abbreviated work schedule. I find that by doing so Respondent discriminated against the returning strikers in violation of Section 8(a) (3) and (1) of the Act.6 IIn this connection the record contains testimony that in response to queries by re- turning strikers as to why the workweek was cut, various supervisors in Respondent's hierarchy indicated that Respondent had promised the replacements they would not be terminated at the end of the strike and that Respondent anticipated, and even welcomed, the prospect that returning strikers would quit because of the shortened workweek. Such testimony, of course, squares with the theme enunciated by Herb Anderson immediately after the second election that, if necessary, a strike could be utilized to get rid of union adherents Nevertheless, since the testimony here cited is in sharp dispute and since unlawful discrimination has already been found on an independent ground, I deem it unnecessary to resolve the conflicting testimony. 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The discharge of Donald R. Anderson Donald R. Anderson began his employment with Respondent in June 1958 as a wood assembler in the wood shop. Subsequently, he transferred to a job in the planning department where he was employed at the time of the strike. Donald R. Anderson was a member of the Union and active in its behalf. Re- spondent knew of this membership and activity. Anderson was active on the picket line during the strike and served as picket captain from the second week of the strike to the end. Moreover, even before the strike Anderson had several conversations with Assistant Planner William C. McDaniel, his supervisor, in the course of which McDaniel stated that a striker would not have a job in his organization, and that if Anderson did not cross a picket line, his job would be terminated. Anderson stated his reluctance to cross a picket line, explaining that he had been a member of IAM in Milwaukee and that if he crossed a picket line, he would never get another job there. McDaniel replied, "That is up to you." 7 Anderson worked up until the day of the strike. On April 6, 1960, the day the strike began, Anderson went out on strike with the others. Under date of April 7, 1960, 1 day later, Respondent wrote Anderson stating in substance that due to his unauthorized absence without notice, his employment was terminated effective immediately.8 On July 11, 1960, Anderson, who in the meantime had sought other work and applied for State unemployment compensation, filed application together with other striking employees to return to work for Respondent. As he was going into Respondent's office for that purpose he met Rachal. Rachal asked Anderson whether he worked in the planning department. When Anderson replied affirma- tively to this query and agreed also that the planning department was not in the appropriate bargaining unit, Rachal closed the conversation .9 The very next day, July 12, 1960, Respondent again wrote Anderson acknowledging receipt of his ap- plication to return to work but reiterating that his employment had been "terminated as of April 7, 1960, due to unexcused absence, and under these circumstances you will not be re-employed with Mooney Aircraft." 10 On July 18, 1960, as already noted, the Union filed unfair labor practice charges against Respondent alleging discriminatory termination of Anderson's employment. Several days later at the July 23 bargaining conference, Anderson's status came up for discussion. Daniel G. Blue, representing the Union, asked Rachal whether he knew Anderson had applied for, and been denied, reinstatement. Rachal stated that Anderson had been discharged for absenteeism and added that Anderson had not been a member of the appropriate bargaining unit. Blue informed Rachal that in the opinion of the Union Anderson had been treated discriminatorily, whereupon Rachal inquired whether it was not Respondent's right to discharge Anderson for his activities inasmuch as Anderson was not a member of the bargaining unit. Blue answered that all employees were entitled to protection under existing law. Rachal offered to compromise the matter by putting Anderson to work the follow- ing Monday if the Union would drop any unfair labor practice charges it may have filed.ll The Union, so far as appears, did not accept the compromise offer but Anderson was put to work by Respondent on Monday, July 25, 1960. I find, as alleged in the complaint, that Anderson was discriminatorily discharged and denied reinstatement because of his union activity. The evidence in that re- gard is ample and persuasive. Thus, even before the strike began, Anderson was told that his refusal to cross a picket line would result in his termination. When Anderson, as he had previously indicated he would, did refuse to cross the picket line, he was promptly discharged. The reason asserted by Respondent for the dis- charge, namely, unexcused absence without notice, was patently a pretext. In the first place, Anderson had been absent only 1 day or, at the most, 2, when the April 7 letter discharging him was written, whereas evidence in the record establishes that, 7 McDaniel, who testified at the bearing, made no mention of these conversations and they stand undenied on the record. The parties stipulated at the hearing that Anderson received this letter on April 14. e The record is not clear as to whether the planning department employees were or were mot in the bargaining unit but resolution of that issue is not required for purposes of this proceeding. 10 At the hearing, however, Respondent advanced the somewhat novel contention that because Anderson had not received the April 7 discharge letter until April 14, his dis- charge was not effective until that date. I reject the contention and find that Anderson was discharged on April 7. 31 The foregoing findings concerning the July 23 discussion of Anderson's status are based on the testimony of Blue and of employee Spicer, both of whom I credit. MOONEY AIRCRAFT, INC. 1207 under settled company policy, only 3-day absences were considered ground for dis- charge. Moreover, in view of the fact that the strike began on April 7 and in view of Anderson's previously declared reluctance to cross a picket line, Respondent had every reason to suspect, at the very least, that Anderson's absence was attributable to the strike and not to negligence or insubordination.12 More credible is the ex- planation implicit in Rachal's query at the bargaining session of July 23, i.e., Rachal's belief that because Anderson was not a member of the bargaining unit he was not entitled to strike or engage in other concerted activities in that regard and hence was subject to discharge. The statutory guarantee to employees to engage in a lawful strike contains no such limitation. Anderson, no less than his fellow em- ployees, was entitled to immunity from reprisals for exercising his right to strike or engage in other concerted activities for mutual aid and protection. Respondent in- truded upon that immunity. I find that Respondent by discharging Donald R. Anderson and by denying him reinstatement upon request violated Section 8(a)(1) and (3) of the Act. 4. The alleged refusal to reinstate Thomas F. Peiser The original complaint in this proceeding made no reference to Thomas F. Peiser. At the opening of the hearing General Counsel,'without objection, amended the com- plaint to allege that Respondent had discriminatorily refused to "reinstate" Peiser. Testimony in support of this allegation was adduced, largely from Peiser himself, and it appeared from Peiser's own testimony that he had not sought reinstatement but had merely asked to be hired as a new employee. Accordingly, General Counsel prior to resting his case, moved to strike the amendment relating to the refusal to "reinstate" Peiser and to substitute therefor an' allegation that Respondent discrim- inatorily refused to "reemploy" Peiser. Respondent opposed this motion but upon due consideration the Trial Examiner permitted the substitution subject to the con- dition that Peiser be made available for further cross-examination by Respondent in the light of the new allegation. Respondent later waived his right to cross-examine Peiser. The relevant evidence may be briefly summarized. General Counsel established that Peiser had been employed by Respondent as a combination welder from 1958 until the strike on April 6, 1960, and that his work as a welder had been highly regarded. General Counsel further established that Peiser •had played a lead- ing role in the Union, participated in the bargaining negotiations in behalf of the Union, and was active in the strike, all of which Respondent knew. At the con- conclusion of the strike in July, Peiser did not apply for reinstatement with the other strikers, having in the meantime found other employment. About a month later in a casual conversation at a cafe with Don Turley, foreman of final assembly, Turley told Peiser that Respondent was short of welders and asked Peiser what his plans were. Peiser replied that he did not know whether he would be coming back or not. On October 3, 1960, however, almost 3 months after the strike ended and about a week before the hearing in the instant case began, Peiser came to Respondent's plant to inquire about job possibilities. At the time Respondent needed welders and, as already noted, Peiser's qualifications in that regard were unquestioned. Never- theless, after a number of conferences on October 3, 1960, and on succeeding days, with various members of Respondent's supervisory hierarchy, Peiser was denied employment. General Counsel argues from the foregoing that Peiser was denied employment which was available and for which he was fully qualified because of his membership and activities in behalf of the Union. Unlike the situation respecting Donald R. Anderson, there is in Peiser's case a dearth of any direct evidence to support an inference that Peiser's union or strike activities played a role in Respondent's determination. Admittedly, the refusal to give Peiser a job which was open and for which he was qualified raises a suspicion, but mere suspicion does not afford a basis for an unfair labor practice finding. Moreover, there is affirmative evidence that Respondent's actions respecting Peiser were not motivated by hostility to his union or strike activities. The fact is that at the conclusion of the strike, Respondent did allow the strikers to return to work, excluding only Anderson whom Respondent mistakenly regarded as falling in -a,spe- 1z Even assuming Respondent was unaware of the strike and of Anderson's participa- tion therein, the invalidity of the discharge is still apparent. The fact is that Anderson was on strike and the statutory protection accorded strikers is paramount. See Home Beneficial Life Insurance Company, Inc. v. N.L.R.B., 159 F. 2d 280, 285 (C.A. 4), cert. denied 332 U.S 758. 1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cial category because he was not a member of the bargaining unit. Peiser did not seek to return to work at that time and, as already noted, indicated in an informal conversation with Don Turley a month later that he did not know whether he would be coming back or not. Furthermore, as Peiser freely admitted to Vice President Harmon, he never gave any notice to Respondent between the end of the strike in July and his application for work in October of his desire to return or not to return to work. As Harmon stated on that occasion, such conduct on the part of an em-1 ployee is quite irregular and is not generally tolerated. Finally, Peiser's applica- tion itself was likewise irregular. As he himself testified, his primary interest at the time of his application for a job was the number of hours he would work and when he was told by Foreman Dietrich that the current work schedule was 44 hours a week, indicated that that was not enough to get by on and asked for something better. Foreman Dietrich, who impressed me as a straightforward witness and not unfavorably disposed to Peiser, credibly testified that he reported this conversation to Tonnessen prior to Tonnessen's rejection of Peiser's application for a job.13 Un- der all these circumstances, including Peiser's acknowledged desire for more work- ing hours than were currently scheduled and his prior lack of interest in keeping Respondent informed of his desire to return or not to return to work, I find that Re- spondent had sound reason to reject Peiser's application for employment without regard to his union or strike activities. Upon all the evidence I am satisfied and I find that General Counsel has not established any unlawful discrimination respecting Peiser. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, inti- mate, 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 Pursuant to Section 10(c) of the Act, I will recommend that Respondent cease and desist from engaging in the unfair labor practices found herein. The broad pattern of the violations found evinces a general hostility on Respondent's part to the prin- ciples of collective bargaining and to the right of employees to engage in legitimate concerted activities for purposes of organization or other mutual aid and protection. Accordingly, I believe a broad order enjoining all forms of unlawful interference with rights guaranteed employees by Section 7 of the Act is also appropriate here in order to make the remedy coextensive with the threat of future unfair labor practices. Affirmative relief is also required here in order to effectuate the policies of the Act. I will therefore direct that Respondent bargain in good faith with the Union upon request. I will further direct that to the extent Respondent has not fully complied with its statutory obligation to reinstate and make whole the strikers who uncondi- tionally requested reinstatement, it now do so. In this connection, it should be noted, as the complaint alleges and the answer admits, that an unconditional offer to return to work was made on or about July 9, 1960,14 and that Respondent, as a matter of law, was obliged to discharge strike replacements, as necessary, to afford full and ade- quate reinstatement to the strikers in respect to their working hours and other terms and conditions of their employment. Donald R. Anderson presents a special case inasmuch as, under findings already made, he was specifically discharged on April 7, 1960. Normally, an employee un- lawfully discharged is entitled to backpay from the date of his discharge and is not required to make a request for reinstatement. Where, as here, however, the em- ployee involved is a striker and it does not plainly appear that he would in any event have abandoned the strike prior to its termination, the Board is averse to granting backpay during the period the employee would have abstained from work because of the strike even absent the discharge. Dunkirk Broadcasting Corporation, et al., 120 1s Peiser testified that in his interview with Tonnessen and in subsequent interviews he did not condition his request for a job on receiving more working hours than were cur- rently scheduled. However, even assuming the officials in question were aware of Peiser's change of position in this regard, they could well evaluate Peiser's application for employment in terms of the conditions he had previously imposed 14 That offer was adequate . See N L.R B. v. Marden Mfg. Co., 217 F. 2d 567, 571, footnote 10 (C.A. 5), cert. denied 348 U.S. 981. Respondent is, of course, culpable for any delay occasioned by its insistence upon individual applications by the strikers as a precondition to their return to work. > KNICKERBOCKER PLASTIC CO., INC. 1209 NLRB 1588, 1593. In the case of Anderson; it is particularly apparent from his own statements prior to the strike that he would not cross a picket line. Accordingly, I believe the period for which backpay should be awarded Anderson should begin from the date he, in company with other strikers, first indicated to Respondent his availability, for employment. With respect to implementation of the make -whole provisions of this order, the procedure outlined in F. W. Woolworth Company, 90 NLRB 289, shall be followed so far as relevant here , and Respondent shall be directed to make available to the Board upon request,' payroll and other records appropriate for that purpose. Finally, I will recommend that Respondent post appropriate notices and furnish compliance reports. Upon the foregoing findings, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Sec- tion 2 (2), (6), and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. ,3. All production and maintenance employees of Respondent at its Kerrville, Texas, plant, excluding office clerical employees, professional employees, guards, watchmen, and supervisors as defined in the Act, constitute a unit appropriate for pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. 4. At all times material herein the Union has been the exclusive bargaining repre- sentative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. Since 'on or about September 26, 1959, Respondent, as demonstrated by oral statements and by other acts and conduct , has refused and is refusing to bargain in good faith with the Union as the exclusive bargaining representative of its employees in violation of Section 8 (a) (5) and (1) of the Act. 6. By failing and refusing, upon request, to reinstate strikers to the same or sub- stantially equivalent positions held by them before the strike, Respondent has vio- lated Section 8 (a) (3) and (1) of the Act. 7. By discharging Donald R. Anderson on April 7, 1960, because of his partici- pation in the strike and his refusal to cross the picket line, Respondent further violated Section 8 (a) (3) and (1) of the Act. 8. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent did not violate Section 8 (a) (3) and (1) of the Act by refusing to reemploy Thomas F. Peiser. [Recommendations omitted from publication.] Knickerbocker Plastic Co., Inc. and International Association of Machinists, District Lodge No. 727. Case No. 21-CA-1111. August 25, 1961 - SUPPLEMENTAL DECISION AND ORDER On April 30, 1953, the National Labor Relations Board, herein called the Board, issued a Decision and Order in the above-entitled proceeding;' finding, inter alia, that the Respondent had violated Section 8(a) (3) and (1) of the Act by discharging certain of its em- ployees, -herein called claimants. The Board therefore ordered that the Respondent make the claimants whole for any loss of pay which they might have suffered as a result of the discrimination against 1104 NLRB 514. 132 NLRB No. 106.