The General Tire and Rubber Co.

THE GENERAL TIRE AND RUBBER COMPANY 269 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 thereof. V. THE REMEDY Having found that International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent, have violated Section 8 (b) (4) (i) and (ii) (B) of the Act, I shall recommend that it cease and desist therefrom and take certain affirma- tive action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard, its agent, is a labor organization within the meaning of Section 2(5) of the Act. 2. By inducing and encouraging employees of U.S. Tire Engineers, Inc., and of other employers having electrical contracts with Plauche Electric , Inc., to engage in a strike or a concerted refusal in the course of their employment to perform services with the object of forcing or requiring their respective employers to cease doing business with Plauche Electric, Inc., and any other person, International Brotherhood of Electrical Workers, Local Union 861, and Arneth Lard , its agent, have engaged in unfair labor practices within the meaning of Section 8 (b) (4) (i) and (ii) (B) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] The General Tire and Rubber Company and International Union of Operating Engineers , Local 826, AFL-CIO. Case No. 16-CA- 1471 (formerly 33-CA-654). January 15, 1962 DECISION AND ORDER On June 30, 1961, Trial Examiner Howard Myers issued his Inter- mediate 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 Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of these allegations. There- after, the General Counsel and the Respondent filed exceptions to the Intermediate Report together with supporting briefs. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Fanning, and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, 135 NLRB No. 28. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated herein 2 We agree with the Trial Examiner, and for the reasons stated by him, that the Respondent unlawfuly refused to bargain with the Union in violation of Section 8 (a) (5) and (1) of the Act, and that the resulting strike was an unfair labor practice strike. However, we do not agree with the Trial Examiner's finding that the Respondent did not unlawfully discriminate against striking employees De La Cruz, Campos, Garcia, Moreno, and Alvarez. These five employees had been hired by the Respondent through Stone and had refused to cross the picket line during the strike. On the same day that the strike ended, the Respondent notified its guard that these employees (as well as Bishop who had previously been discharged for cause) were not to be permitted to enter the plant. The Trial Examiner appears to have premised his finding that this treat- ment of these employees was not unlawful on the fact that the Re- spondent's agreement with Stone had been canceled and on his holding that the services of these employees were no longer needed. With re- spect to the cancellation of the agreement between the Respondent and Stone, we fail to perceive how this serves to justify the discharge and refusal to reinstate these five employees. As the Trial Examiner him- self found, and with this finding we agree, these employees were at all material times employees of the Respondent. The termination of the employing arrangement the Respondent had with Stone could not and did not affect the status of these employees vis-a-vis the Respondent. As to the need for their services, we think that the record clearly estab- lishes that the Respondent did have openings for them. We note that shortly after the termination of the strike, the Respondent, following the same procedure as it once did with Stone, referred these employees to Dresser Engineering Company, and through Dresser offered to each of these employees the same, or substantially the same, employment in jobs they had performed prior to the strike. It is well established that unfair labor practice strikers are entitled to reinstatement upon their unconditional application to return to work. By discharging these five employees who were unfair labor practice strikers, and by refusing to reinstate them, the Respondent violated Section 8 (a) (3) and (1) of the Act. 1 Absent exceptions , we adopt pro forma the Trial Examiner's recommended dismissal of those allegations in the complaint pertaining to statements made by Barker and Stone, the transfer and discharge of Sanderson , the discharge of Bishop , Respondent 's treatment of Parris , Wilson, Powell , and Eaves , and a lockout of the striking employees z Subsequent to the issuance of the Intermediate Report herein , the General Counsel filed a motion to remand this case and to reopen the bearing for the purpose of permitting the General Counsel to amend the complaint and consolidate with the instant case unfair labor practice allegations contained in a charge filed in Case No 16-CA-1506 A reply in opposition to this motion was filed by the Respondent As it appears that the charge in Case No 16-CA-1506 alleges new unfair labor practices which may properly be litigated in that case, the motion is denied Palmer Manufacturing Corporation, 94 NLRB 1477 THE GENERAL TIRE AND RUBBER COMPANY 271 The Remedy Having found that the Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent failed and refused to bargain in good faith with the Union. Accordingly, we shall order the Re- spondent to bargain with the Union as the exclusive representative of the employees in the appropriate unit, and, if an understanding is reached, to embody such understanding in a signed agreement. It has also been found that the Respondent discriminatorily denied employment to De La Cruz, Campos, Garcia, Moreno, and Alvarez. The record reveals that subsequent to this discrimination offers of reinstatement were made to each of these strikers, but it is not clear as to when these offers of reinstatement were made. The dates of the offers of reinstatement can, however, be determined at the compliance stage of the proceeding. Accordingly, since proper offers of reinstate- ment were made, we shall only order the Respondent to reimburse the employees named in the Appendix attached hereto for any loss of pay they may have suffered by reason of the Respondent's discrimina- tion against them by paying to each of these employees a sum of money equal to the amount that he normally would have earned as wages from September 26, 1960,3 to the dates of the respective offers of reinstatement, less his net earnings during said period. The amount of backpay due shall be computed according to Board policy set forth in F. W. Woolworth Company, 90 NLRB 289. Payroll and other records in possession of the Respondent are to be made available to the Board or its agents to assist in such computation. Ordinarily, where, as here, the Board finds, contrary to a Trial Examiner, that a re- spondent has violated Section 8(a) (3) of the Act, provision is made for the tolling of backpay from the date of the Intermediate Report to the date of the Board's Decision and Order. Because in the instant case proper offers of reinstatement were made to the discriminatees prior to the hearing herein, which offers terminated liability for fur- ther backpay, a tolling provision is unnecessary. . In view of our findings concerning the Respondent's refusal to bargain and its discrimination against the above-named striking em- ployees, we find that the nature of the violations requires the inclusion of a broad cease-and-desist provision in our Order 4 3 Although the discrimination occurred on September 22, 1960 , it appears , as the Trial Examiner found , that September 26 was the earliest date the Respondent could have re- called the strikers to work. 4 N L.R B. v. Entwistle Mfg. Go, 120 F 2d 532, 536 (C A 4). 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Upon the entire record in this 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, The General 'Tire and Rubber Company, its officers, agents, successors , and assigns, shall : 1. Cease and desist from : (a) Discouraging membership in, or activities on behalf of, Inter- national Union of Operating Engineers, Local 826, AFL-CIO, or any other labor organization of its employees, by discharging or refusing to reinstate, or by discriminating in regard to the hire or tenure of employment or any other term or condition of employment of any of its employees. (b) Refusing to bargain collectively with, International Union of Operating Engineers, Local 826, AFL-CIO, as the exclusive statutory representative in the appropriate unit. (c) In any other manner interfering with, restraining, or coercing ,our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist International Union of 'Operating Engineers, Local 826, AFL-CIO, or any other labor or- ganization, to bargain collectively through representatives of their own choosing for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities. 2. Take the following affirmative action which the Board finds will ,effectuate the policies of the Act : (a) Upon request, bargain collectively with International Union .of Operating Engineers, Local 826, AFL-CIO, as the exclusive statu- tory representative of the employees in the appropriate unit and em- =body in a signed agreement any understanding reached. (b) Make whole Alfredo De La Cruz, Julian Campos, Jose Garcia, 'Thomas Moreno, and Jesus Alvarez in the manner set forth in that section of our decision entitled "The Remedy" for any loss of pay each may have suffered by reason of the Respondent's discrimination against him. (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social se- ,curity payment records, timecards, personnel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this Order. (d) Post at its plant in Odessa, Texas, copies of the notice attached hereto marked "Appendix." 5 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being 5In 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." THE GENERAL TIRE AND RUBBER COMPANY 273 duly signed by the Respondent's representative, be posted by the Re- spondent 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 by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Sixteenth Region, in writ- ing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, as amended, be and it hereby is, dismissed, insofar as it alleges violations not found. MEMBER RODGERS dissenting : I do not agree that the Respondent violated Section 8 (a.) (5) and (3) of the Act, and, accordingly, would dismiss the complaint in its entirety. First, with respect to my colleagues holding that the Respondent violated Section 8 (a) (5) of the Act, I do not believe that the record here warrants funding that the Respondent refused to bargain in good faith. The record shows that representatives of the Respondent and the Union first met on March 17, 1960, and that 17 negotiating sessions were held thereafter. Throughout these sessions the Respond- ent submitted proposals and counterproposals in an effort to arrive at a contract. Evidence of the Respondent's good-faith bargaining efforts is found in the progress made during these negotiating sessions. For example, at the eighth meeting held on May 24, 1960, the Union presented a list of 79 "must" items, which it maintained had to be included in the contract. Through the give and take of bargaining, the Union's second "must" list, which was presented at the 12th ses- sion on June 23, 1960, was reduced to 46 items. Through further nego- tiations, the "must" list was reduced to 26 items as of the 16th session held on September 7, 1960, and the Respondent, at the next meeting held on September 13, 1960, offered to compromise on nine of these items. I would find, therefore, that while the bargaining negotiations between the Respondent and the Union were hard and long, the Re- spondent bargained in good faith. I do not agree with my colleagues' finding that the Respondent violated Section 8(a) (3) of the Act by discriminating against De La Cruz, Campos, Garcia, Moreno, and Alvarez. First, it should be noted at the outset that some of these alleged discriminatees were in- cluded within the bargaining unit. Second, it should be noted that the status of these individuals was established by an agreement which the Respondent had with Stone. This agreement provided that Stone, for a stated compensation which includes wages , and an overriding 634449-62-vol. 135-19 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percentage, was to furnish the Respondent with laborers. Pursuant to this agreement, Stone hired the above-named individuals, placed them on his payroll, and sent them to work at the Respondent's plant. While at work at the Respondent's plant, these individuals were sub- ject to the Respondent's direction and control and could be discharged by the Respondent. The Trial Examiner found that these individuals were employees of the Respondent. I question whether this finding is legally sound. However, I need not decide the precise status of these individuals, for, in any event, whatever employment relationship existed was clearly contingent upon the continuance of the arrangement between the Respondent and Stone. On September 21, the day before the strike ended, Stone canceled that agreement. Therefore, I fail to understand how it can be said that the Respondent's refusal to permit these in- dividuals to return to work after Stone terminated the agreement was unlawful. Moreover, I would point out that there is no showing that the Re- spondent's actions here were discriminatorily motivated. As noted by the Trial Examiner, shortly after the strike ended the Respondent re- ferred each of these individuals to Dresser Engineering Company with whom the Respondent entered into an agreement similar to the agreement canceled by Stone, and Dresser in turn offered to each the same or substantially equivalent employment at the Respondent's plant in jobs they had before the strike. The Respondent's treatment of these individuals evidences that Respondent was not motivated by union animus or by the fact that these individuals had not worked during the strike. I would, therefore, find that the Respondent did not unlawfully discharge these individuals, or unlawfully refuse to reinstate them. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL bargain collectively, upon request, with International Union of Operating Engineers, Local 826, AFL-CIO, as the ex- clusive bargaining representative of all the employees in the bar- gaining unit described below in respect to rates of pay, wages, hours of employment, or other conditions of employment, and, if an understanding is reached, embody it in a signed agreement. The bargaining unit is : All our Odessa, Texas, production and maintenance employees and' laboratory technicians, including head Ioperators, head THE GENERAL TIRE AND RUBBER COMPANY 275 technicians, head craftsmen, and special laborers, but exclud= ing clerical employees, safety inspectors, professional em- ployees, guards, and supervisors as defined in the Act. WE WILL NOT discourage membership in, or activities on behalf of, International Union of Operating Engineers, Local 826, AFL- CIO, or any other labor organization of our employees, by dis- charging or refusing to reinstate, or by discriminating in regard to the hire or tenure of employment, or any other term or condition of employment, of any of our employees. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist International Union of Operating Engineers, Local 826, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL make whole the employees named below for any loss of pay suffered by reason of the discrimination against them : Alfredo De La Cruz Thomas Moreno Julian Campos Jesus Alvarez Jose Garcia THE GENERAL TIRE AND RUBBER COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office (300 West Vickery Street, Forth Worth, Texas; Telephone Number Edison 5-5341) if they have any question concerning this notice or compliance with its provisions. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE Upon a charge and an amended charge duly filed on August 8 , and September 9, 1960,1 respectively, by International Union of Operating Engineers , Local 826, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel2 and the Board, through the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint, dated September 20, against The General Tire and Rubber Company, herein called Respondent, alleging that Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a)'(1); 1 Unless otherwise 'noted, all dates mentioned herein refer to 1960. 2 This term specifically refers 'to counsel for the General Counsel appearing at the hearing. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (3), and(s) and Section 2(6) and (7) of the National Labor Relations Act, 61 Stat. 136, as amended from time to time, herein called the Act. Copies of the charges, complaint, amendment to complaint,3 and notice of hearing were duly served upon Respondent and copies of the complaint, 'amendment to complaint, and notice of hearing were duly served upon the Union. On September 27, Respondent duly filed an answer to the complaint and on Octo- ber 13, duly filed an answer to the amendment to the complaint. Each of said documents denied the commission of the unfair labor practices alleged. Pursuant to due notice, a hearing was held between October 18 and December 16, at Midland, Texas, before the duly designated Trial Examiner. The General Counsel and Respondent were represented by counsel and participated in the hearing. Full and complete opportunity was afforded the parties to be heard, to examine and cross-examine witnesses, to present evidence pertinent to the issues, to argue orally at the conclusion of the taking of the evidence, and to submit briefs on or before January 25, 1961. Briefs have been received from the General Counsel 'and from Respondent which have been carefully considered. Upon the entire record in the case, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS OPERATIONS The General Tire and Rubber Company, an Ohio corporation, has its principal offices and place of business in Akron, Ohio. Respondent also operates a plant at Odessa, Texas, the employees of which are the only ones involved in this proceeding, where it is engaged in the manufacture of synthetic rubber. During the 12-month period immediately preceding the issuance of the complaint herein, which period is representatave of all times material, Respondent's Odessa plant's out-of-State purchases of raw materials exceeded $50,000. During the same period said plant's out-of-State shipments of synthetic rubber exceeded $50,000. Upon the basis of the foregoing facts, it is found, in line with established Board authority, the Respondent is engaged in, and during all times material was engaged in, business affecting commerce within the meaning of Section 2(6) and (7) of the Act and that its operations meet the standards fixed by the Board for the assertion of jurisdiction. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization admitting to membership employees of Respondent. Ill. THE UNFAIR LABOR PRACTICES INVOLVED A. The refusal to bargain collectively 1. The appropriate unit and the Union's majority status therein The complaint, as amended, alleges, the answer, as amended, admits, and the Trial Examiner finds, that at a Board-conducted election held on January 28, a majority of the production and maintenance employees and laboratory technicians employed at Respondent's Odessa, Texas, plant, including head operators, head technicians, head craftsmen, and special laborers, but excluding clerical employees, safety in- spectors, professional employees, guards, and supervisors as defined by the Act, selected and designated the Union as their exclusive representative for the purposes of collective bargaining with respect to grievances, labor disputes, rates of pay, wages, hours of employment, or other conditions of employment; that on February 5 the Board certified the Union as such representative of all the aforementioned em- ployees; and that since February 5 the Union has been their statutory bargaining representative. 2. The negotiations a. The pertinent facts 4 Pursuant to the Union's request for a bargaining meeting, made on or about February 5, representatives of Respondent and Union met on March 17. At this 8 Dated September '30. ' In the light of the Trial Examiner's observation of the conduct and deportment at the hearing of all the witnesses, and after a very careful scrutiny of the entire record, all of which has been carefully read and parts of which have been reread and rechecked several times , and being mindful of the contentions of the parties with respect to the THE GENERAL TIRE AND RUBBER COMPANY 277 meeting, the Union submitted a complete proposed contract with the exception of a clause pertaining to "a progression chart." After the Union's representatives had outlined to Respondent's representatives, in a somewhat perfunctory manner, the various contract terms and the meaning of certain verbiage used in the proposed con- tract, the meeting concluded with the understanding that the parties would meet again on March 30. On March 30 and April 6, 19, and 20, the parties met and, at Respondent's request, detailed discussions were had relative to the Union's March 17 proposed contract, but no definite agreement was reached with respect to any provision thereof. During the course of the initial meeting and at those held on April 19 and 20, the Union requested Respondent not to "contract out" maintenance work which was then being performed by persons within the unit for which the Union had been certified. Respondent replied that it had contracted out maintenance work in the past, that it intended to continue to do so whenever it so desired, and that it had no intention whatsoever to "bargain away" its right to contract out any type of work, for that privilege was going to have to be under the sole discretion of the Company. At the April 20 meeting, Respondent submitted to the Union certain written counterproposals which were discussed in conjunction with the Union's proposals. These counterproposals concerned such subjects as the length of the contract, vaca- tions, holidays, jury service, strikes and lockouts, plant bulletin boards, safety, and sanitation. The past practice of Respondent had been to grant its production and maintenance employees 1 week's paid vacation after 1 year of service, 2 weeks' pair vacation after 2 years of service, and 3 weeks' paid vacation after X11 years of service. The Union's proposed contract called for 2 weeks' paid vacation after 1 year of service, 3 weeks' paid vacation after 10 years of service, and 4 weeks' paid vacation after 20 years of service. Respondent's proposal called for 1 week's paid vacation after 1 year of service, 2 weeks' paid vacation after 2 years of service, and 3 weeks' paid vacation after 15 years of service. The past practice of Respondent had been to grant its production and maintenance employees eight paid holidays each year. The Union proposed that Respondent grant said employees nine paid holidays. Respondent's proposal called for seven paid holidays. At subsequent meetings between the parties 5 Respondent submitted other written counterproposals. One such proposal, contained under the heading, "Preamble," states, among other things, "The Union hereby recognizes the Company's exclusive right to manage its business, direct and assign and classify the working force, estab- lish rules, contract work, discharge, suspend, discipline, and such other rights of management that are not expressly modified herein or by statutory prohibitions." The Union complained that by inserting in the above-quoted clause Respondent's unrestricted right to contract out work, Respondent thereby was in a position to destroy the unit found appropriate by the Board and the Union's representative status, by contracting out all the work then done by the employees in said unit. Despite the Union's often repeated protests, Respondent never recessed from its position that it had the absolute right to contract out any and all work it desired and that its right to do so was not a bargainable subject, except that it did agree to amend said clause by adding the following clause, "It is understood the Union retains the statutory rights provided by law, none of which are surrendered herein." At the May 11 meeting, Respondent presented a proposed. grievance procedure clause. This proposal, after setting forth the various steps which had to be followed before a grievance went to arbitration, provided that in "all cases of complaints or grievances alleging improper discharge or suspension, Steps One (the time within which grievance must be submitted to the aggrieved employee's immediate super- visor) and Two (the time within -which the appeal must be made to the head of the department if the aggrieved employee is not satisfied with the decision of his immediate supervisor) will be bypassed. In such cases the arbitrator shall not be empowered to modify the degree of discipline imposed by the Company." Despite the Union's protest at this meeting and at subsequent meetings that such a clause merely gave the arbitrator. nothing to determine save the question whether the credibility problems here involved, of the fact that in many instances testimony was given about events which took place many months prior to the opening of the hearing, and of the fact that very strong feelings have been generated by the circumstances of this case, coupled with the fact that it would protract this report greatly to summarize all the testimony or to spell out fully the confusion and inconsistencies therein, the following is a composite picture of all the factual issues involved with respect to this subsection. G There were some 18 meetings all told. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employee involved actually violated a company rule or not, Respondent maintained that it would not agree to any arbitration clause which did not so limit the arbitrator's authority because it did not intend to have any arbitrator telling it to what degree it may discipline its employees. At the aforesaid May 11 meeting, Respondent presented a proposal regarding hours of work. This proposal provided for a base workweek of 40 hours. The Union then inquired whether Respondent intended to do away with the three 40-hour weeks and one 48-hour week which the employees had been regularly working, and if Respondent did not intend to change the employees' regular hours of work would it so state in the bargaining contract. Respondent replied that it had no present intention of changing the employees' schedule of hours but it might decide to do so at some later date and hence, because it had the right to unilaterally limit the hours of work to 40 hours a week, it would not put into the contract any mention of whether it would or it would not retain the then existing employees' scheduled hours of work. In fact, Respondent maintained that it had the absolute right to unilaterally change the work schedules any time without any advanced notice to the employees.6 Nor would Respondent at this meeting include a provision in the contract that it would continue to supply coveralls or laboratory jackets to those employees who were then receiving them. All Respondent would consent to include in the contract, with respect to those pieces of clothing, were provisions to the effect that if "any Article herein be held invalid by any court, such decision shall not invalidate the other Articles" and "All subjects or claims not treated herein are waived for the term hereof." Prior to May 24, the Union had called upon the Federal Mediation Service for assistance. On May 24, the mediator assigned to the situation first separately conferred with the Union's representatives and then separately conferred with Respondent's rep- resentatives. Thereafter the mediator attended a joint union-respondent meeting. There the status of the negotiations were outlined to the mediator and Respondent also submitted to the Union a complete proposed contract, including a wage scale. Respondent's proposed wage scale was below the then prevailing one. In fact, the proposed wage scale reduced some employees' wages as much as 40 cents an hour. When the Union objected to the wage cut, Respondent stated that the then prevailing wage scale should not be used as the basis of bargaining on wages. The meeting concluded with the understanding that the parties would meet with the mediator the following morning and that, in the interim, the mediator would study the contract proposed by each party. The following day, May 25, in the mediator's presence, the parties discussed anew the proposals submitted by each. Respondent agreed to continue its policy of annually giving each employee eight paid holidays instead of the seven it had previously proposed, but it made no proposal regarding a checkoff, loss of pay when a work schedule was changed, a wage reopener, computation of holiday over- time pay (though the method was outlined in Respondent's employees' manual), termination pay, and various other clauses contained in the Union's proposed con- tract. Respondent stated that it had no intention of modifying its "contract out" work proposal. The mediator and the parties next met on June 16. Respondent stated, at the outset of the joint meeting, that the employees' pay would remain at the then existing scale until the employees created sufficient seniority to warrant being ad- vanced to the next higher classification. The Union objected to such a proposal maintaining that, in reality, that arrangement would be a cut in pay in that the employees had been promoted in 90 days whereas under this proposal some em- ployees would have to wait 18 months before they could receive a pay increase. Further discussion was had with respect to other Respondent proposals but no agreement was reached with respect to any of them. The parties and the mediator met on the afternoon of June 16, at which time the mediator announced that he had been informed that Respondent was then pre- senting its final proposals . Discussion was had regarding one proposal but no agreement was reached with respect to it. The Union then inquired whether Re- spondent would agree to meet it after the strike vote, which had been set for June 22, had been taken, and Respondent said that it would. As of May 11 It was the policy of Respondent, as stated in Respondent's manual, a copy of which was supplied to each new employee upon being hired, that the employees would be given 5 days' notice before any change of schedule and if they did not receive at least 16 hours' advance notice, they would receive time and a half for the first shift worked on the new schedule. THE GENERAL TIRE AND RUBBER COMPANY 279 On June 23, Respondent and the Union met. The former was advised by the latter that the strike vote was overwhelmingly carried. The Union complained that one of Respondent's top officials had been telling some of the employees "If they did not like [Respondent's] contract proposals they should have kept what they had and not voted for the union." 7 The Union then outlined certain proposals which had to be incorporated in any contract before the contract would be acceptable to it. Discussion was had with respect to these union demands but Respondent refused to agree to any of them. On June 24, the mediator met with the parties and Respondent agreed to retain certain practices which were then in effect at the plant, but would not agree to most of the so-called union "must" items. During the course of one of the June meetings, Respondent proposed to grant any employee with 1 year's accredited service 1 week's paid vacation and to grant any employee with 2 or more years' accredited service 2 weeks' paid vacation. On July 24, Jesse Jones, an assistant regional director of the Union, informed Respondent that the Union would accept all of Respondent's proposals provided Respondent would agree to a dues checkoff clause. Respondent refused the offer maintaining, as it did throughout the negotiations, that it was the Union's responsi- bility to collect its own dues. There were several other meetings, the last being held on September 14; some with and some without the presence of the mediator. It would serve no useful pur- pose here to outline in detail what transpired thereat for no agreement was reached, except to certain minor clauses b. Concluding findings The -Board and the courts have been uniformly in accord with the doctrine that it is the duty of an employer to enter discussions with respect to collective bargain- ing "with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of employment." 8 Respondent's conduct in this regard fell far short of this standard. Respondent failed utterly to discharge its statutory duty to bargain collectively with the Union as the representative of the employees in the appropriate unit in good faith. It is clear that Respondent at no time during Fits prolonged negotiations entertained any intention of entering into an agreement with the Union. The fact that Respondent entered into the negotiations with a mind "hermetically sealed against even the thought of entering into an agreement" 9 with the Union is evidenced, in part, by first offering a wage scale less than it was then paying and one less paid holiday than it was then giving its employees. Further evidence that Respondent lacked any intention of entering into discussions with the Union with an open and fair mind, and with a sincere purpose to find a basis of agreement is its absolute refusal to bargain with respect to such matters as contract-out work. This is not to say that the Union must first approve before an employer may contract out work, but it is to say that a chance to bargain must be afforded before an employer enters into a contract affecting the hire and tenure of his union workers' employment. This is so because "Such unilateral action minimizes the influence of organized bargaining. It interferes with the right to self-organization by emphasizing to the employees that there is no necessity for a collective bargaining agent." 10 Also illustrative of the inescapable conclusion that Respondent was giving, as the court said in N.L.R.B. v. Athens Manufacturing Company, 161 F. 2d 8 (C.A. 5), "a runaround while purporting to be meeting with the Union for the purpose of collec- tive bargaining" is the fact that when the Union, on July 24, agreed to incorporate into a contract all of Respondent's proposals provided Respondent would consent to a checkoff, Respondent flatly refused the offer. 7 This official was present at the aforesaid meeting but did not deny making the statement. s Globe Cotton Mills v. N L R B, 103 F. 2d 91, 94 (C A. 5). In accord, N L.R B v Whittier Mills Company, at al., 111 F 2d 474 (C.A. 5) ; N L R B v. Athens Manufacturing Company, 161 F. 2d 8 (C A. 5) ; N L.R.B. v. Reed & Prince Manufacturing Company, 118 F 2d 874 (CA. 1). 9 N L R B v. Griswold Manufacturing Company, 106 F 2d 713, 723 (C.A 3). 1o May Department Stores v N.L.R.B, 326 U.S. 376, 385. See also N.L R.B v. Crompton-Highland Mills, 337 U S 217; N.L.R.B v. Burton-Dixie Corporation, 210 F. 2d 199 (CA. 10) ; N.L.RB. v. Brown-Dunkin Company, Inc., 287 F. 2d 17 (C.A. 10). 280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in the case, the Trial Examiner finds that on March 17, 1960,11 and at all times thereafter, Respondent refused to bargain collectively in good faith with the Union as the exclusive statutory representative of its employees in a certain appropriate unit with respect to grievances, labor disputes, rates of pay, wages, hours of employment, and other conditions of employment, and by such refusal which is violative of Section 8(a)(5) of the Act, Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The alleged 8(a) (1) statements of Morris Barker Gaylin Bishop was initially interviewed for employment as an outside mainte- nance man on July 8 by Morris Barker, Respondent's safety engineer. Bishop testified that after he successfully passed certain written aptitude tests given to him by Barker, the latter informed him that Respondent was not then hiring anyone but was securing whatever personnel it needed from H V. Stone; i2 that Barker then referred him to Stone; that before leaving Barker's office for Stone's place of busi- ness, Barker asked him how he felt about the Union; and that when he reported for work on the Monday following his referral by Stone, Barker told him and two other men, who had been hired that day through Stone,13 that they would not be allowed to belong to the Union nor would they be allowed to discuss the Union with any other employee. Barker denied that he asked Bishop how he felt about the Union or that he told Bishop, Howard, or Morgan that they would not be allowed to belong to the Union or discuss it with the other employees. The Trial Examiner credits Barker's denials and finds that he did not make the above referred to statements attributed to him by Bishop. This finding is based not only upon the credited testimony of Morgan and Howard, which substantially corroborates Barker's testimony, but also upon (1) a careful scrutiny of the entire record in the case, all of which has been care- fully read, and parts of which have been reread and rechecked several times; (2) the candor with which Barker testified; and (3) the fact that Barker, Morgan, and Howard particularly impressed the Trial Examiner as being persons who are careful with the truth and meticulous in not enlarging their testimony beyond their actual 11 The date of the first meeting between the parties looking toward a collective- bargaining contract 12 During the course of the bargaining negotiations, referred to above, Respondent and H V. Stone, an operator of a local construction company, entered into a written agree- ment under which Stone, for a stated compensation, was to furnish Respondent with laborers It is Respondent's contention that the laborers furnished by Stone were Stone's employees and not Respondent's. The credible evidence convincingly establishes (1) appli- cants for labor employment were solicited by Respondent through newspaper advertisement and by other means; (2) said applicants were first interviewed by Barker or by William B Fleck, Respondent's industrial relations manager; ( 3) if an applicant appeared satis- factory to the interviewer, the applicant was then given a written aptitude test; (4) if the applicant successfully passed said test, the interviewer would then advise the appli- cant the wage scale he was to receive and then refer the applicant to Stone ; (5) when the applicant arrived at Stone's establishment, Stone, or in Stone's absence by the person then in charge of Stone's office, would take the applicant's name, his social security number, and secure from the applicant an executed W-2 tax withholding form; (6) the applicant was then instructed by Stone or his substitute to report for work at Respond- ent's plant ; and (7) when the persons furnished by Stone were put to work , Respondent (a) controlled the retention of said persons in that it had the absolute right to discharge them, as it did in the case of Bishop, ( b) required them to adhere to the discipline and other rules applicable to its employees , ( c) accorded them the same general supervision, privileges , and prerequisites as ordinary employees , furnished them with tools, equipment, uniforms , and (d ) had them perform the same type of work as was being performed by its regular employees. Under the circumstances, the Trial Examiner finds that the per- sons furnished by Stone were , during all times material , Respondent 's employees within the meaning of Section 2(3) of the Act. The May Department Stores, et al, 59 NLRB 976, 987, enfd . 154 F. 2d 533 ( C.A. 8), cert. denied 329 U S. 725 ; Local 911, International Brotherhood of Teamsters, etc., 122 NLRB 499. Cf. United States v Silk, 331 U S 704, 713, American Broadcasting Company, a Division of American Broadcasting -Paramount Theaters, Inc, et al, 117 NLRB 13, 18; Serv-Us Bakers of Oklahoma, 121 NLRB 84, 87, at footnote 3 ; Southern Shellfish Co , Inc, 95 NLRB 957, 962-963 ; Ben v. United States, 139 F. Supp. 883, affd. 241 F. 2d 127 (C.A. 7). is Namely, William Howard and Earl Morgan. THE GENERAL TIRE AND RUBBER COMPANY 281 knowledge of what occurred or what was said. On the other hand, Bishop gave the Trial Examiner the impression that he was studiously attempting to conform his testimony to what he considered to be his best interest C. The alleged 8(a) (1) statement of Stone Alfredo De La Cruz, a laborer furnished Respondent by Stone, testified that when he saw Stone, after being referred to Stone by Barker, Stone told him to quote from De La Cruz's testimony, "You can't belong to [the Union] because we're not having any unions in the company." Stone denied that he made the aforesaid statement attributed to him by De La Cruz. Stone testified that the only thing he said to De La Cruz about the Union was during the strike when De La Cruz telephoned and said that he was afraid to cross the picket line and that he told De La Cruz it was up to De La Cruz to do whatever he thought best. After a very careful examination of the record regarding this De La Cruz-Stone incident, the Trial Examiner is convinced, and finds, that what Stone actually told De La Cruz was that Stone's company did not have a union and that De La Cruz could not joint a union and work for Stone. D. The alleged discriminatory job transfer of Roger Allen Sanderson Sanderson testified that he was first hired by Respondent on September 9, 1957, as a trainee operator; that he continued as such for 3 months; that thereafter he worked on several different jobs, each lasting from 1 to about 3 months, that from January 1959 until August 1960, he worked in the outside area on reactors and recovery; that on August 1, 196'0, he was assigned to work in the coagulation area; that when he was assigned to the coagulation areas, he asked his shift foreman, Harry Miller, if he was being transferred because his work was not satisfactory on his then job; that Miller assured him that he had been doing satisfactory work and that the transfer was being made solely because of "cross-section training," which training was part of his overall job; and that upon returning to the plant after the conclusion of the strike, he returned to his coagulation job. The credited evidence established that employees, such as Sanderson, are rotated from one job to another when the need to do so arises. The only evidence from which an inference could possibly be made that Sander- son's August 1960 transfer was motivated by union animus is the fact that Sanderson attended the July 22 bargaining session and had gotten into an argument with Plant Manager Percy J. Wallace. The record, however, discloses, and the Trial Examiner finds, that Sanderson was a long-time known union adherent for he served as a union observer in the first election held at the plant in 1958; that it was customary to transfer employees such as Sanderson from job to job as part of an overall "cross- section training"; that the rotation of assignments is an advantage to the operator; and that the coagulation area assignment was no more arduous and unpleasant than the jobs previously assigned Sanderson. Upon the record as a whole, the Trial Examiner finds that Sanderson's transfer to a job in the coagulation area was not violative of the Act. E. The alleged discriminatory discharge of Sanderson On December 2, 1960, Sanderson worked on the midnight to 8 a.m. shift in coagulation area on the "A" line. During this shift the technical department changed the specification for the rubber to be produced. The specification for the change in formula was first signed by Sanderson's shift foreman, Don Barr, then signed by Instrument Man Winters, and then approved by Operator Weinkauf. Following this, Sanderson started up the "A" line and ran it for a period of about 2 or 3 hours. During this period, Sanderson testified, and the Trial Examiner finds, that he failed to make the calibrations he was required to make; that he entered readings on the calibration sheet which he did not take; that the figures he entered upon the calibration sheet would lead the person whose job it was to inspect the calibration sheet to a false impression; and that if Sanderson had entered the correct calibration or entered none at all the foreman would have been able to detect that there was something wrong with the flow of "AO" and the foreman would then shut down the coagulation operation. It is the General Counsel's contention that Sanderson was not discharged because he had made false entries but because of his union affiliation. In support to this contention, the General Counsel points to the fact that Operator Bosse, who dis- covered that "the office" had not been changed, received but a 5-day layoff for falsification of records, that Winters received but 1-day layoff, and that Weinkauf 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received a warning slip only and that slip was handed to him about 10 days after the incident had occurred and then only after the complaint in the instant proceeding had been amended to allege Sanderson's discriminatory discharge. There is some evidence in the record that about eight coagulation operators had been falsifying their "AO" records. The credited evidence is clear, however, that Respondent had no knowledge of ,these falsifications. 14 Moreover, the evidence is clear, and the Trial Examiner finds, that Sanderson's past work record was a poor one, in that since his employment he had been warned or reprimanded about his work by every shift foreman under whose supervision he had worked.15 In addi- tion, the record is devoid of any credible evidence that Bosse, Winters, or Weinkauf had ever been disciplined or warned for poor workmanship. Upon the entire record in the case, the Trial Examiner is convinced, and finds, that Sanderson was discharged for cause and not for the reasons advanced by the General Counsel. F. The alleged discriminatory discharge of Bishop As found above, Bishop was employed in July by Respondent through Stone to perform maintenance work. He worked continuously thereafter at the plant until the start of the strike on September 18. Bishop, although not a union member, did not report for work on September 19, but did report for work the following day. About mid-morning on September 20, the second day of the strike, Bishop and two other nonstriking employees, Charles Hogan and Gary Johnson, got into a discussion during a rest period about the striking employees, Bishop being sympa- thetic to the strikers and Johnson being otherwise. Bishop resented Johnson's re- marks and particularly Johnson's attitude toward the strikers and clearly indicated his resentment by threatening Johnson with physical violence if Johnson did not stop "running down the Union men." Word of this discussion, and of Bishop's threats to Johnson, soon came to ,the attention of Foreman Harry Lengfeld who communicated the facts to his super- visor, Master Mechanic Newell Harriman. Harriman then called Johnson into his office where the latter told Harriman about his "trouble" with Bishop and of Bishop's threat to "punch him in the nose " Harriman, after he "got rid of" Johnson, told Bishop, to quote Harriman's credited testimony, "I thought that I ought to get him out of the plant," whereupon Harriman, after discussing the Johnson-Bishop incident with his superiors, discharged Bishop 16 and escorted him out of the plant. The Trial Examiner has given very careful consideration to the testimony given by all the witnesses testifying about the Johnson-Bishop discussion, about the sub- sequent two Bishop-Harriman conversations on September 20,17 and about Bishop's discharge and his removal from the plant, and finds that Bishop was discharged solely because Bishop threatened to assault another employee at a time when feelings between groups of employees were running high between the factions sympathetic toward the strikers and those who felt otherwise. Under the circumstances, and upon the entire record in the case, the Trial Examiner finds that the allegations of the complaints, as amended, that Bishop's discharge was violative of Section 8(a) (3) of the Act are not supported by substantial evidence. "The Trial Examiner is not unmindful of the fact that Weinkauf, a nonunion employee and who worked during the strike, testified that he once told Barr that it was impossible, at times, to take a calibration "if I was having trouble somewhere else" and that Barr replied that he would "try to get it fixed " This testimony does not, as the General Counsel seems to suggest, disclose Respondent's knowledge that the coagulation operators were falsifying their records 15For example, when working under Foreman Gray, Sanderson failed to check the dryers as required and he made 2 ,400 pounds of "wet" rubber thereby causing Respondent a financial loss; on another occasion Sanderson had allowed latex to run into three com- pressors which had to be torn down ; on another occasion Foreman Cook had to talk to Sanderson about doing a proper job of cleanup , and on two separate occasions between February and August 1960, Sanderson had serious foam runovers thereby allowing latex to get into the butadiene compressor which caused, on one occasion, a 6- to 7-hour loss of production and created a danger to the plant 16 Contrary to Respondent's contention, the Trial Examiner finds that Bishop was dis- charged by Harriman on September 20 17 Harriman , while not particularly denying the statements attributed to him by Bishop gave his version of what was said by him and by Bishop. Harriman impressed the Trial Examiner as being a truthful witness and therefore the Trial Examiner finds that Harri- man's version of the said conversations to be substantially in accord with the facts. THE GENERAL TIRE AND RUBBER COMPANY 283 G. The alleged discriminatory discharge of Alfredo De La Cruz, Julian Campos, Jose Garcia, Thomas Moreno, and Jesus Alvarez On Thursday, September 22, Barker gave Respondent's guard a list containing the names of De La Cruz, Campos, Garcia, Moreno, Alvarez, and Bishop with instructions not to permit said six persons to enter the plant. These employees were furnished to Respondent by Stone. The credited and undenied testimony reveals that on or about September 21, Respondent canceled its agreement with Stone and that due to the strike these em- ployees' services were no longer needed; that shortly after the strike ended, Respond- ent referred the above-named employees to Dresser Engineering Company, Odessa, Texas, with whom Respondent had entered into an agreement similar to the Stone- canceled agreement; and that within a few days after the conclusion of the strike Respondent offered said six employees substantially equivalent employment to the jobs they had prior to the strike. Upon the entire record in the case, the Trial Examiner finds that the General Counsel has failed to support the allegations of the complaint, as amended, that the aforenamed six persons were discriminated against in violation of the Section 8 (a) (3) of the Act. H. The alleged discrimination against Jim Parris, Grover Wilson, Richard Powell, B. J. Eaves, and B. E. Anderson The complaint, as amended, alleged that when Parris, Wilson, Powell, Eaves, and Anderson returned to work after the strike they were either demoted or assigned to different or more arduous jobs. The credited evidence establishes that immediately prior to the strike Anderson, a striker, was head craftsman at $3.12 per hour; that when Anderson returned to the plant on September 26,18 he was assigned to "A" craftsman job at $2.95 per hour; that job of head craftsman had been abolished at the conclusion of the strike because the necessity for such a job no longer existed; that Anderson had held the job of head craftsman on a temporary basis for about 2 years prior .to the strike and Respond- ent's records disclose that such temporary status had never been removed; and that Respondent determined, after careful consideration and without Anderson's union affiliations and sympathies playing any part in its determination, to assign Anderson to the job he had prior to the aforesaid temporary assignment. Powell, immediately prior to the strike, was working as vacation relief for Head Technician W. D. Massey at $3.02 per hour. With the commencement of the strike all vacations were canceled and this action did away with the vacation relief schedule such as Powell's temporary assignment. Just prior to the strike, which Powell joined, Laboratory Manager James Hutson had scheduled Powell to take Delbert Urban's job who was to start his vacation on September 19. Because of the strike, Urban did not go on vacation but continued on the job. On September 21, Urban was given permission to take a few days off (not on vacation) to attend his sister's wedding. Urban left for the wedding on September 22, and Bill Stanford, who worked during the strike, was assigned to take Urban's job while the latter was away and Powell was on strike. The day the strike was called off, Hutson telephoned Urban and asked him if he wanted to remain away from the plant and take his vacation. When Urban replied in the affirmative, Stan- ford was continued in Urban's job in accordance with plant practice of allowing the person who relieves a fellow employee on vacation to retain the job throughout the vacation period. Wilson went on strike and walked the picket line. Prior to the strike, Wilson had been an "A" operator in the control room. Upon Wilson's return to the plant after the strike he was assigned to the job as coagulation operator. Eaves was employed prior to the strike as an "A" recovery operator. He had been scheduled to go on his 2-week annual vacation starting on September 19. When he returned to the plant after his vacation he was made a baler operator. Parris was a "B" class operator in pigments prior to striking. Following the strike he was made a baler operator. Of the five operators listed above the only one who suffered any financial or other loss was Anderson. In his brief the General Counsel contended that the above referred to job transfers "were made by Respondent to further harass the Union in its efforts to represent the employees." He further contended in his brief that the said job transfers were made unilaterally and without consultation with the Union. is About noon on September 22 the Union sent Plant Manager Wallace a telegram calling off the strike 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Whatever may be said about the General Counsel's contentions, the credited testimony clearly reveals that the jobs to which the above-named 6 persons were transferred were not more arduous or unpleasant as alleged in the complaint, as amended; that the job transfers were made in the normal course of Respondent's practice of transferring the men from job to job in order to teach them the various operations; that in the past operators were transferred without notice to either the men or to the Union; that from October 1957 until the opening of the hearing, Plant Superintendent Dwight Jeffery made an average of about 7 job transfers per operator; and that Jeffery made 16 separate assignment changes when he made up the new poststrike schedules. Upon the entire record in the case, the Trial Examiner finds that the allegations of the complaint, as amended, that Respondent discriminated against Anderson, Wilson, Powell, Parris, and Eaves in violation of Section 8 (a) (3) of the Act, are not supported by substantial evidence. 1. The alleged lockout of the strikers About noon on Thursday, September 22, the Union telegraphed Wallace an un- conditional offer to return to work.19 However, it was not until Monday, September 26, that the strikers were recalled. In the interim, Respondent operated its plant with the employees who worked during the strike on a 12-hour-a-day basis. Respondent through Jeffrey and other witnesses proved to the Trial Examiner's complete satisfaction that the reason for the delay in recalling the strikers was solely because, to quote from Jeffrey's credible testimony, "We had to contact all the men that were out and find out if all of them were going to come back and also had to contact all the people that we had working in the plant and tell them when to come back as well as telling other people when to come back too." Upon the entire record in the case, the Trial Examiner finds that the allegations of the complaint, as amended, that Respondent locked out the strikers, have not been supported by substantial evidence. 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, such of them as have been found to constitute unfair labor practices, 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 violative of Section 8(a) (1) and (5) of the Act, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent, on March 17, 1960, and at all times thereafter, has refused to bargain collectively in good faith with the Union as the representative of the employees in an appropriate unit, the Trial Examiner will recommend that Respondent, upon request, bargain collectively with said labor organization as the exclusive representative of all employees in the unit heretofore found appropriate, and, if an agreement is reached, embody such understanding in a signed agreement. Except for the unlawful conduct flowing out of Respondent's refusal to bargain collectively with the Union, the record does not disclose that a danger exists that Respondent in the future may commit other unfair labor practices unrelated in kind to that found. Under the circumstances, it will not be recommended that the Board issue the usual broad cease-and-desist order. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. The General Tire and Rubber Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 19 The Trial Examiner finds, contrary to Respondent's contention, that the strike was an unfair labor practice strike caused by Respondent 's refusal to bargain in good faith with the Union. ESGRO INC . AND ESGRO VALLEY INC. 285 2. International Union of Operating Engineers , Local 826, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. All Respondent's production and maintenance employees and laboratory tech- nicians employed at Respondent's Odessa, Texas, plant, including head operators, head technicians , head craftsmen , and special laborers , but excluding clerical em- ployees, safety inspectors, professional employees , guards, and supervisors as defined by the Act, constitute, and at all times material constituted, a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Union of Operating Engineers , Local 826, AFL-CIO, was on February 5, 1960, and at all times thereafter has been, the exclusive statutory repre- sentative of all the employees in the above-described appropriate unit for the pur- poses of collective bargaining within the meaning of Section 9(a) of the Act. 5. By refusing on March 17, 1960, and at all times thereafter , to bargain col- lectively with International Union of Operating Engineers, Local 826, AFL-CIO, as the exclusive statutory representative of the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) 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. 7. Respondent did not, except as otherwise found above, violate the Act. [Recommendations omitted from publication.] Esgro Inc. and Esgro Valley Inc. and Herbert Rivkin White Front Stores, Inc. and Herbert Rivkin Retail Clerks International Association , Local No. 777, AFL- CIO and Herbert Rivkin. Cases Nos. 21-CA-4035, 21-CA-4062, and 21-CB-1564-1. January 15, 1962 DECISION AND ORDER On May 4, 1961, Trial Examiner Wallace E. Royster issued his Intermediate Report in the above-entitled proceeding, finding that certain of the Respondents had engaged in and were engaging in un- fair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the Intermedi- ate Report attached hereto. Thereafter, the General Counsel and the Esgro Respondents filed exceptions to^ the Intermediate Report and briefs. Pursuant to Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Rodgers and Leedom]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner to the extent consistent herewith. • 135 NLRB No. 20. 1 . ' ' ' I