Fort Smith Chair Co.

514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it will comply with the foregoing Recommended Order, the Board issue an Order requiring the Respondent to take such action. It is further recommended that the complaint be dismissed , insofar as it alleges any unfair labor practices not found herein. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, you are notified that: WE WILL NOT discourage membership in Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 405, or any other union, by discriminating against our employees in regard to their hire or tenure of employment or any of their working conditions. WE WILL NOT question our employees about their union membership, sym- pathy, or activities , in a manner violative of Section 8 (a) (1) of the Act. WE WILL NOT in any other manner interfere with, restrain , or coerce our employees in the exercise of their right of self-organization , to form , join, or assist unions , to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from such activities. WE WILL offer Ophelia Hutchison immediate and full reinstatement to her former or a substantially equivalent position , without prejudice to any seniority or other rights and privileges previously enjoyed, and make her whole for any loss of pay suffered by her as a result of the discrimination against her. Our employees are free to become , remain, or refrain from becoming members of the above-named or any other union. TENNESSEE PACKERS, INC., FROSTY MORN DIVISION, Employer. Dated- ------------------ By------------------------------------------- (Representative ) ( Title) NOTE.-We will notify the above-named employee if presently serving in the Armed Forces of the United States of her right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act of 1948, as amended, after discharge from the Armed Forces This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered , defaced, or covered by any other material. Anyone having any question concerning this notice or compliance with its pro- visions may communicate directly with the Board 's Regional Office, 22 North Front Street, Memphis, Tennessee , 38103, Telephone No. Ja. 7-5451. Fort Smith Chair Company and Local 270, United Furniture Workers of America, AFL-CIO.' Case No. W-CA-1094. June N8, 1963 DECISION AND ORDER On May 21, 1962, Trial Examiner Sidney S. Asher, Jr., issued his Intermediate Report herein, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative ac- tion as set forth in the copy of the attached Intermediate Report. Thereafter, Respondent and the General Counsel filed exceptions to 1 United Furniture Workers of America, AFL-CIO, intervened and participated at the hearing herein , it also filed a brief. 143 NLRB No. 28. FORT SMITH CHAIR COMPANY 515 the Intermediate Report along with supporting briefs, and the Charg- ing Party filed a brief in support of the Intermediate Report. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and finds merit in the exceptions of the Respondent. Accord- ingly, the Board adopts the findings of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The complaint alleges and the Trial Examiner found that the Re- spondent violated Section 8 (a) (1), (3), and (5) by discharging its striking employees and thereafter refusing to bargain with their collective-bargaining representative. The Respondent contends that it discharged its employees because they were engaged in an unlawful strike and that, in any event, the strikers had, under the loss-of-status provisions of Section 8(d), lost their status as employees by reason of their representative's failure, before the strike, to file timely notices, as required by Section 8(d) (3). In consequence, the Respondent argues, it did not violate Section 8(a) (3) by discharging the strikers nor did it violate Section 8(a)(5) by thereafter refusing to bargain because the Union in view of the discharges lost its majority repre- sentative status. We find merit in the Respondent's contentions. The relevant facts, briefly summarized, establish the following : Local 270, United Furniture Workers of America, AFL-CIO, herein called the Union, and the Respondent, have had bargaining relations since about 1940. The most recent agreement between the parties was of 2 years' duration with a stated May 31, 1961, expiration date. Con- sistent with the notice provision of the contract and with the statutory requirement of Section 8(d) (1) 2 the Union, on March 27, 1961, gave notice of its desire to terminate the contract and to negotiate a new 2 Section 8(d) of the Act, as amended, provides, in part, as follows: . . where there is in effect a collective-bargaining contract covering the employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party of the proposed termination or modification sixty days prior to the expiration date thereof # * P R R t 4 (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute . and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, which- ever occurs later: s s s r s Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the par- ticular labor dispute, for the purpose of sections 8, 9, and 10 of this Act, as amended . . . . 717-672-64-vol. 143-34 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement. The parties met and bargained on May 29 and 311 No agreement was reached and on June 1 a strike began. As of June 1, the notices to Federal Mediation and Conciliation Service and to the State department of labor required by Section 8(d) (3) had not been received and so far as appears had not been sent. On June 7, while the strike was in progress, the parties again negotiated,; a representa- tive of Federal Mediation and Conciliation Service was then in at- tendance for the first time. No agreement was reached and another meeting was scheduled for the next day. However, no such meeting did, in fact, occur as Respondent, on June 8, notified the Union that it would not continue negotiations because of the unlawful nature of the strike. Simultaneously, the Respondent notified each striker that he was terminated because he had engaged in an unlawful work stop- page. On June 13, Respondent resumed operations with new em- ployees, and made certain wage and incentive system changes without consultation with the Union. The Trial Examiner found that, immediately preceding the strike, the Union was willing to accept the old contract with minor changes already agreed upon. In view of this and his further finding that, at this point, Respondent was demanding modification of the old contract, he concluded that the purpose of the strike was not to cause termination or modification of the contract, but was rather to force Respondent to abandon its insistence upon substantial changes in the agreement. From these preliminary findings, the Trial Exam- iner reasoned that as the strike was not for the purpose of modifying or terminating the contract, Section 8(d) was not applicable and the strikers were, consequently, engaged in a lawful economic strike for which they could not be lawfully discharged.' The Trial Examiner has found, in effect, that while Section 8 (d) imposes its requirements upon the party desiring to terminate or modify the contract, the duty of complying with these requirements may at times shift from the party who initially invokes that section to the other party. We perceive no basis in this section, or in the legislative history, for viewing the responsibility under this section so tentatively. To make this section's continued applicability to the party initially desiring the change turn on the unpredictable course which the ensuing bargaining may take is to bring the disquiet of a potential lockout or a strike into an area where Congress wanted quiet-indeed, a "cooling-off" period. We therefore conclude con- trary to the Trial Examiner that, by serving notice of its desire to 8 All dates refer to 1961 unless otherwise designated. 'Absent any violation of Section 8(d), the strike would appear to have been a lawful, economic strike. While the Union contends that the Respondent failed, and refused to bargain in good faith before the strike and that the strike must therefore be viewed as an unfair labor practice strike at its inception , the record provides no support for this contention nor was it alleged in the complaint. FORT SMITH CHAIR COMPANY 517 terminate the existing contract and to negotiate a new agreement, the Union took upon itself the responsibility for complying with the remaining requirements of Section 8(d) before engaging in a strike and that its failure to file the notices required by Section 8(d) (3) caused the strike to be unlawful from its inceptions While we have assumed heretofore the correctness of the Trial Examiner's finding that, immediately prior to the strike, the Union was seeking solely the old contract, the record does not substantiate his finding. For it is abundantly clear that the Union was seeking rather a contract wit& modifications already agreed upon in the course of negotiations. Nor do we believe that Mastro Plastics Corp. v. N.L.R.B.,s cited by the Trial Examiner, supports a finding as to the legality of the strike. That decision by its very language dealt with the situation of a strike by employees "solely against unfair labor practices of their employer."' As indicated above, the strike here was riot in protest against employer unfair labor practices, nor, as indicated above, does the complaint contain such allegation. Mastro Plastics, therefore, is wholly inapposite. As we have found the June 1 strike to be unlawful, the Respond- ent could, as it contends it did, lawfully discharge employees because they engaged in the strike. However, the General Counsel contends, and excepts to the Trial Examiner's failure to find, that the real reason for discharging the strikers was not the strike but the desire of the Respondent to rid itself of the Union. The General Counsel attaches a controlling significance to the testimony of Respondent's secretary-treasurer given in response to a question as to why he dis- charged the strikers. In substance, this witness testified that before reaching his decision he had considered the Respondent's financial difficulties, the Respondent's difficulty in obtaining changes in work- ing conditions, the Union's harassment of Respondent through the filing of grievances, and the Union's uncompromising attitude. This is no more than a formulation of the background against which the Respondent decided to exercise its lawful right to discharge its em- ployees for engaging in an unlawful strike. It falls short of being an admission of illegal motivation. Given a valid reason, as here, for discharging its employees and the fact that this reason was set forth in the Respondent's letter to these employees shortly after Re- spondent learned of the noncompliance with Section 8(d), there is ample basis on the entire record for concluding, gas we do here, that employee participation in the unlawful strike was the real reason for the discharge. 5 Retail Clerks International Association, Local No. 1179 AFL, etc. (J. C. Penney Com- pany), 109 NLRB 754; Local Union 219, Retail Clerks International Association, AFL- CIO v. N.LR.B. ( Carroll House of Belleville ), 265 F. 2d 814 (C.A.D.C.). 0 350 U.S. 270 (1956). 7 350 U.S at 271. 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, apart from the foregoing, we find that the Respondent's motive in discharging the strikers is not a relevant consideration. The strike here was an unlawful, and not merely an unprotected, ac- tivity," and by engaging in such a strike, the employees "forfeited their rights to protection of the Act."' To hold otherwise would, in effect, protect the strikers in their unlawful conduct, a result clearly in collision with the Board's responsibility to discourage such conduct."' As set forth in footnote 2, above, Section 8 (d) requires both 60-day and 30-day notices. The so-called loss-of-status provision of Section 8 (d) provides that "Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for purposes of sections 8, 9, and 10 of this Act . . . ." The General Counsel and the Union argue that because only one 60-day period is "specified" in Section 8(d)-that set forth in subsection (1) and be- ginning with the date of service of the notices required by that sub- section-the loss-of-status provision should be interpreted as applying only ton strike occurring within the 60-day period following service of the 8 (d) (1) notices and without regard to the serving of the 30-day notice under Section 8(d) (3). Under such a construction, their argu- ment goes, the strikers in this proceeding would not lose their status as employees since the strike commenced more than 60 days after service. However, to give such a literal construction of the waiting period to the loss-of-status provision is to wrench it from the rest of Section 8(d). As one court has stated, ". . . there are no `plain words' of Section 8 (d)." 11 Rather, the section must be interpreted in light of the dual purposes of the Act to protect concerted activities and to substitute collective bargaining for economic warfare.12 To aid the latter purpose, Section 8(d) not only provides for a 60-day period during which the parties to a contract are to bargain without strike or lockout but also provides in Section 8 (d) (3) for the full use of mediation services during at least half of such period. While sub- sections (1) through (4) place certain obligations upon the contractual parties in order to assure that bargaining and mediation can proceed for a reasonable time free from direct economic pressures, the loss- of-status provision, in effect, places an obligation upon employees for the same purpose. Consequently, it seems obvious to us that the various 8 See cases cited in footnote 5. 6 Mackay Radio and Telegraph Company, Inc , 96 NLRB 740 , 742-743. 10 Agreeing with the majority that Respondent did not have a discriminatory intent, Member Brown finds it unnecessary to consider what the situation would be had Respond- ent's motive been otherwise, and, in view of the specific language of Section 8(d), he also finds it unnecessary to rely on Mackay Radio, supra 11 Local Union 219, Retail Clerks International Association, AFL-CIO v N.L R B, supra, at 817. 12 E g , Mastro Plastics Corp., supra, at 284 ; see also Sections 201-205 ( Title II) of the Act. FORT SMITH CHAIR COMPANY 519 parts of Section 8(d) here involved must be read together in order to create an effective and consistent statutory means for achieving the purpose of the section. It is true that subsection 8 (b) (4), which limits the rights of the contracting parties to resort to strike or lockout, defines the proscribed period as one of "sixty days after such notice is given" and that this Board and the courts have recognized that the period thus described refers to that "specified" in Section 8(d) (1). However, it has also been concluded that, where late notices under Section 8(d) (3) to the Mediation and Conciliation Service are filed, the waiting period must be extended to include a full 30 days after the filing of such notices in order to give mediation its intended statutory period in which to work. Indeed, a strike within the 30-day period is unlawful and is therefore enjoinable.13 By parity of reasoning, the "sixty-day period specified in the subsection" set forth in the loss-of-status provision re- quires the same interpretation to protect the period for mediation. Surely, the statutory language suggests no basis for concluding that the similarly worded waiting periods of Section 8(d) should vary from clause to clause and, as indicated above, we believe there are cogent reasons why they should not. Consequently, we conclude that the loss-of-status provision is applicable not only to strikes within the initial 60-day period but also to those strikes beginning less than 30 days after service of the 8(d) (3) notices or, with respect to the present case, to those occurring absent the filing of such notices.14 We finally conclude, therefore, that, by operation of the loss-of-status provision of Section 8(d), the strikers lost their employee status and 13 Local Union 219 Retail Clerks International Association, AFL-CIO v. N L R B , supra, and Retail Clerks International Association , Local No . 1179 AFL, etc (J C Penney Company), supra. 11 Our dissenting colleague contends that Retail Clerks International Association, Local to 1179, AFL, etc (J. C Penney Company). supra, and "related cases" support his view as to the effect of the "loss-of-status" provision where no 8(d ) ( 3) notices have been filed and a strike occurs after the initial 60-day period has expired He would conclude that by ordering the union to bargain in J. C Penney Company, the Board , by implica- tion, held the strikers had not lost their employee status since , if it were otherwise, the union would have had no majority status on which to base a bargaining order . However, matters concerning the applicability of the various provisions, including that of the loss-of-status provision , do not automatically intrude themselves into the consideration and disposition of a case by the Board , but must be properly raised by the party seeking to rely upon them . See N L R B. v Giustina Bros Lumber Co ., 253 F 2d 371 (C A. 9) Consequently , as no party apparently raised the loss-of-status provision in J. C Penney and related cases , the Board could not, absent overriding policy considerations , have con- strued that provision in reaching its decision or in framing its remedy . Thus, there is no basis for implying, as does the dissent, some particular Board construction of the loss-of-status provision from the decision and order in J. C. Penney and "related cases." Furthermore, we find no support for the dissenting position in the Supreme Court majority and concurring opinions which it cites . As for Mastro Plastics, supra, it dealt. as noted with the applicability of Section 8(d) to an unfair labor practices strike; while NLRB v Lion Oil Company, 352 U.S. 282 , concerned that section's applicability to a strike during the term of a contract . Thus neither case involved the instant situation and neither was specifically concerned with the effect of Section 8(d) (3) upon the loss-of- status provision Consequently, we do not believe that the general statements directed to the problems before the Court and relied upon by the dissent are useful in construing Section 8(d) with respect to the particular problem before us. 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the protections of Section 8(a) when they walked out on June 1 and that, consequently, such motive as may have been behind the Respond- ent's actions with respect to them is immaterial.15 In sum, we here decide that the Respondent did not violate Section 8(a) (3) and (1) by its conduct with respect to the strikers on and after June 8, 1961. Also as the strikers' employee status was lawfully terminated, it follows, and we find, that the Respondent's breaking off of negotiations with the Union and its unilateral changes in work- ing conditions did not violate Section 8(a) (5) and (1), as alleged. Accordingly, we shall dismiss the complaint. [The Board dismissed the complaint.] CHAIRMAN MCCULLOCH, concurring : I concur in the result reached in this case. The strike engaged in by the discharged employees was unlawful under Section 8(d) (3) of the Act because of the Union's failure to give the 30 days' notice therein required,"' and as such was an unprotected concerted activity for which the employees could validly be discharged. Together with the majority, I do not believe that the record substantiates a finding that the discharge action was in truth motivated by any other con- sideration. Hence, like Member Brown, I find it unnecessary to de- termine what the situation might have been had the record established discriminatory motivation on some other basis. Nor do I find it neces- sary now to pass on the question of whether the employee "loss of ' See footnote 10, supra. Our colleague objects in his dissent to the fact that our construction interferes with the right to strike in a manner not specifically provided for in the Act . See Section 13. However, the Board has found strikes unlawful or unprotected in situations where the Act does not specifically proscribe such strikes but where , however, important policy considerations deriving from the Act require such result . See, for example, Budd Elec- tronics, Inc., 137 NLRB 498, finding a strike in violation of a no-strike clause unpro- tected. and Mackay Radio and Telegraph Company, Inc ., supra, holding unlawful a strike to compel an employer to violate the Act. Furthermore, we believe that Section 8(d) (3) was intended as a "specific" limitation on the right to strike . Thus, as Senator Taft observed in defending S. 1126 which contained provisions substantially the same as those here under consideration: "We have done nothing to outlaw strikes for basic wages, hours, and working conditions after proper opportunity for mediation " (93 Cong. Rec. 3835, Apr. 23, 1947 ; emphasis supplied ) and the events since the passage of the 1947 Act have demonstrated that compliance with Section 8(d) (3) has been an important adjunct in providing that congressionally intended "proper opportunity for mediation." In the second report of the Joint Committee on Labor-Management Relations it is ob- served that the Federal Mediation and Conciliation Service "has been greatly assisted in this program [of preventing disputes] by the fact that under Section 8 ( d) (3), a party desirous of modifying or terminating its contract must notify the Service 30 days before resorting to a strike or lock-out . . . . In the days before the 30-day notice was required, strikes frequently occurred before the regional offices of the Service had any knowledge that there was a dispute." Rept. 986, 80th Cong., 2d sess., pt. 3, p. 15. ) Clearly, our colleague's conclusion that employees may lawfully strike after 60 days but irrespective of the filing of 8(d ) ( 3) notices goes far toward defeating the congressional purpose of providing mediation to help avoid industrial strife. 10 Retail Clerks International Association, Local No. 1179 , AFL, etc. (J. C. Penney Com- pany), 109 NLRB 754; Local Union 219 , Retail Clerks International Association, AFL- CIO v. N.L.R B., 265 F. 2d 814 ( C.A.D.C.). FORT SMITH CHAIR COMPANY 521 status" penalty provision contained in the final sentence of Section 8 (d) is applicable in the case of a strike preceded by compliance with the 8(d) (1) 60-day notice requirement but not by compliance with the notice requirement of Section 8(d) (3). The unprotected activity ground adverted to above is enough, without more, to support the dismissal order in which I join. MEMBER FANNING, dissenting : This case involves essentially conflicting arguments concerning the construction and application of Section 8(d). Basically, the conflict revolves around the thrust and scope of the "loss of status" provision in that section, and the extent to which Congress intended to inhibit the right of employees to engage in an economic strike. In pertinent part, Section 8(d) provides that no party to a collective-bargaining agreement shall modify or terminate such agree- ment unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, .. (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes ... (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given ... . The penultimate sentence of this section contains the "loss of status" provision which recites that- Any employee who engages in a strike within the sixty-day pe- riod specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act. . . . [Emphasis supplied.] The Union in this case gave Respondent the requisite 60-day notice of termination as prescribed in Section 8 (d) (1), and both the Union and the employees refrained from engaging in a strike during that period in obedience to the mandate of Section 8(d) (4). However, the Union failed to notify the Mediation Service as outlined in Sec- tion 8(d) (3). After the 60-day period had elapsed, the employees struck. Despite the fact that, both grammatically and structurally, the "loss of status" provision interdicts strike action by employees solely during the 60-day period specified in Section 8(d) (1) and (4), my colleagues hold that, where a union fails to notify the mediation 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agencies of the existence of a dispute within that 60-day period, the right of employees to strike is further forfeited until such time as their representative complies with Section 8 (d) (3). I perceive no warrant, either in the statutory framework or legislative history of Section 8(d), for such a strained construction. Nor do I find support for such a view in decisional law. In construing legislation, we are taught that it becomes "a judicial responsibility to find that interpretation which can most fairly be said to be imbedded in the statute, in the sense of being most har- monious with its scheme and with the general purposes that Congress manifested." 11 If the plain and unambiguous language of Section 8(d) can in any sense be said to leave -a doubt as to the congressional purpose in relating the "loss of status" clause exclusively to the 60- day period specified in Section 8(d) (1) and (4), the pronouncements of the courts and statements of legislative intent do not. In defining the duty to bargain imposed upon employers and unions in Section 8 (d), Congress sought to perfect a balanced accommodation of the right of employees to engage in concerted activities for their mutual aid and protection, and the expressed policy of substituting collective bargaining for economic warfare. In Mastro Plastics Corp. v. N.L.R.B.,18 the Supreme Court pointed out that it- is the dual purpose of the Act (1) to protect the right of em- ployees to be free to take concerted action as provided in Sections 7 and 8(a), and (2) to substitute collective bargaining for eco- nomic warfare in securing satisfactory wages, hours of work and employment conditions. Section 8(d) seeks to bring about the termination,and modification of collective-bargaining agreements without interrupting the flow of commerce or the production of goods, while Sections 7 and 8(a) seek to insure freedom of con- certed action by employees at all times. To foster a climate in which parties to collective-bargaining agree- ments could thoughtfully and peacefully forge succeeding agreements at the bargaining table, Congress fashioned a "natural renegotiation period" of 60 days prior to the expiration of existing contracts "to relieve the parties from the economic pressure of a strike or lockout in relation to the subjects of negotiation." 19 To accomplish this end, it was made an unfair labor practice for either party to resort to such action during that period. But Congress also recognized that em- ployees, in defiance of their union, might disrupt the orderly course of bargaining by engaging in a strike. It therefore warned that any employee who ceased work during this insulated period would lose whatever rights he possessed under the Act. 17 See N L R B v. Lion Oil Company et'al, 352 U S. 282, 297. 18 350 U. S 270, 284. Ibid at p. 286. FORT SMITH CHAIR COMPANY 523 The specific relation of the "loss of status"' provision to the 60-day period set out in Section 8(d) (1) and (4) was not the result of hap- penstance but of compromise. The opponents of the provision argued against its inclusion in that section. They contended that any restric- tion on the right of employees to strike during the renegotiation period would impose an additional penalty upon them inasmuch as their bargaining representative was already foreclosed from taking strike action on pain of committing an unfair labor practice 2° While the argument did not succeed in eliminating this legislative proposal, it did provoke the proponents of the clause to restrict its scope to the 60-day insulated period, for the legislative history of the proposal is literally punctuated with the equation of "loss of status" to that period.21 Moreover, on the few occasions on which judicial authority has considered the scope of Section 8(d), it was made clear that the intrusion which the "loss of status" provision makes on employee strike action was limited to the 60-day period.22 In view of this, it is not 20S Min Rept . 105, pt 2 , on S. 1126, 80th Cong., 1st sess , p 21- "Under the provisions of section 8 both unions and employers are required to bargain collectively A violation of this requirement is made an unfair labor practice , subject to a cease-and- desist order from the Board Clearly a strike or lockout during the 60-day period would constitute an unfair labor practice . We can see no reasonable grounds for discriminating against the employees by providing an additional penalty which will cause them to lose their status as employees under the National Labor Relations Act" And see Congressional Record , page 4156 , April 25, 1947. 21 See, e.g., S. Rept. 105 on S 1126, 80th Cong, 1st sess, p 24 • "Under this section, parties to collective agreements in the future would be required to give 60 days ' notice in advance of the terminal date , if they desire to terminate or amend Should the parties fail to agree on a new contract in the next 30 days , the party taking the lead in refusing the old contract has the duty to notify the new Federal Mediation Service of the impasse Should the notice not be given on time . . it becomes an unfair labor practice for an employer to change any of the terms or conditions specified in the contract for 60 days or to lock out his employees Similarly, it is an unfair labor practice by a union to strike before the expiration of the 60-day period Any employee who engagee in a strike during the 60-day period would lose any rights under sections 8, 9, and 10 of the Wagner Act, unless and until he is reemployed " [Emphasis supplied ] H Rept. 510 on H R 3020 , 80th Cong , 1st sess., p 35• "Any employee who engaged in a strike within the 60-day period just described [in Section 8 ( d)(1) and (4)] lost his status as an employee of the particular employer for the purpose of sections 8, 9, and 10 of the act " [Emphasis supplied ] 23 See N L ii B v Lion Oil Company, et at , supra, at p 303, where Justice Frankfurter, in it 'separate opinion, observed "The loss-of-status clause alone is more favorable to the former Board's view, since it speaks of `the sixty-day period specified in this subsection,' and, to be effective under the present Board's construction, this clause has to be vndei- stood as reading 'the period specified in paragraph (4).' Since the problem before us was not anticipated , it is not surprising that § 8(d)'s legislative history offers little direct evidence that Congress did more than require a sixty-day waiting period prior to bargain- ing strikes . When the Joint Committee did note the problem in 1948 , however , it adopted the present Board's view of the statute and not that of the old Board " [Emphasis sup- plied.] And see Mastro Plastics Corp , et at. v N L R.B ., supra, where a majority of the Court, after setting forth the 60-day period in Section 8(d) (1) and ( 4), stated' "Section 8 ( d) thus seeks , during this natural renegotiation period , to relieve the parties from the economic pressure of a strike or lockout in relation to the subjects of negotiation The final clause of § 8(d ) also warns employees that, if they join a proscribed strike, they shall thereby lose their status as employees . . ." Justice Frankfurter , in his dissenting opinion in that case , related the "loss of status" provision to the 60-day period when he noted that "By reason of this new enactment, participating workers would not be en- gaged in a protected activity under § 7 by striking for the most legitimate economic reasons during the 60 -day period The strike would be in violation of the provision of that section which says that during the period there shall be no resort to a strike [Emphasis supplied ] 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD surprising that my colleagues are unable to point to a single legislative or judicial reference which would support their assertion that such strike activity by employees is subject to proscription for a longer period if the notice to the mediation agencies as required in Section 8 (d) (3) has not been given. There is, I think, an even more compelling reason why my colleagues' disregard of the plain words of Section 8(d) should cause concern. That section seeks to further the dual statutory purpose of protecting the right of employees to engage in concerted activities and of fostering orderly collective bargaining, and, we are told, "A construction which serves neither of these aims is to be avoided unless the words Congress has chosen clearly compel it." 23 Section 13 of the Act cautions that "Nothing in this Act, except as specifically provided for herein, shall be construed so as either to interfere with or impede or diminish in any way the right to strike, or to affect the limitations or qualifications on that right." [Emphasis supplied.] The right to strike is, of course, one of the most fundamental afforded to employees. In light of the affirmative emphasis which the statute places upon the freedom of employee concerted action, and the command of Section 13 that the hand of restraint be placed upon any restriction on such action unless "specifically provided for," I believe that a limitation on the right of employees to strike which goes beyond the 60-day period specified in Section 8(d) (1) and (4) must be more explicit and clear before it can be said to have been intromitted in Section 8 (d) (3) 24 For, under my colleagues' "parity of reasoning," the failure of a union to notify the Mediation Services, either because of inadvertence or in the belief that collective bargaining can be successfully concluded in the renego- tiation period, may result in the forfeiture of the right to strike for weeks, or months, or even years after that period has elapsed. In my opinion, such n. construction throws the concerted rights of employees into imbalance under the statutory scheme, and does little if anything to enhance true collective bargaining. If Congress has sought to relate the "loss-of-status" provision to each and every notice clause in Section 8 (d), it could readily have done so. It has not. This is made abundantly clear by Judge Hays' observation in Independent Union v. Procter & Gamble, 312 F. 2d 181, 188 (C.A. 2) that "... the re- 23 N.L R.B. v. Lion Oil Company at al, supra, at p. 289. u See N.L.R B. v. Lion Oil Company at al., supra; Mastro Plastics Corp. at al. v. N.L R B, supra, at p. 287. And see N.L.R B . v. Erie Resistor Corp, 373 U S 221 : "While Congress has from time to time revamped and redirected national labor policy, its concern for the integrity of the strike weapon has remained constant . Thus when Congress chose to qualify the use of the strike, it did so by prescribing the limits and conditions of the abridgement in exacting detail, e g., §§ 8(b) (4), 8 ( d), by indicating the precise procedures to be followed in effecting the interference, e.g, § 10 (j), (k), (1) ; §§ 2806-2810 , Labor- Management Relations Act, and by preserving the positive command of § 13 that the right to strike is to be given a generous interpretation within the scope of the labor act. The courts have likewise repeatedly recognized and effectuated the strong interest of federal labor policy in the legitimate use of the strike." FORT SMITH CHAIR COMPANY 525 quirement of paragraph (3) [of 8 (d) ] that Federal and State agencies be notified is entirely independent of paragraph (4). There is no suggestion in the text that a failure to meet the notice requirements of paragraph (3) will have any effect on paragraph (4). The only notice mentioned in (4) is the 60-day notice of termination." I am not unmindful of the decisions cited by the majority which hold that a union which fails to give the 30-day notice required in Sec- tion 8 (d) (3) thereby violates Section 8 (b) (3) of the Act. Nor have I disregarded the legislative purpose of requiring such notice-to invite the special assistance of Federal and State mediation agencies in the hope that the peaceful settlement of bargaining disputes will be thereby enhanced. However, I fail to see how these cases support my colleagues' view that employees lose their status and hence their right to strike during the period in which their union commits an unfair labor practice by failing to provide the notices outlined in Section 8(d) (3). For example, in Retail Clerks International Asso- ciation, Local No. 1179 (J. C. Pennney Company) ,25 upon which my colleagues rely, the union had served the 60-day notice upon the company of its desire to modify its contract. Approximately 4 months later, the union and all employees struck without notification having been served on the Mediation Service under Section 8(d) (3). The Board found that the union violated Section 8(b) (3) by its failure to comply with this provision. It ordered the union to cease refusing to bargain with the company by failing to notify the mediation agencies within 30 days after it had served notice upon the company of its desire to modify the contract. In effect, the Board ordered the union, as the exclusive bargaining agent of the employees, to bargain with the company. In my opinion, the result achieved in Penney and related cases 26 collides with the position my colleagues have taken here and presents an obvious anomaly. They now assert that strikers lose their status as "employees" if they engage in a strike whenever their union fails to serve the 30-day notice under Section 8(b) (3). It would there- fore follow that where, as in Penney and the instant case, all em- ployees engage in a strike under these circumstances, the union thereby ceases to be the majority representative and the Board is powerless to perpetuate a bargaining relationship 27 The forced continuation of such a relationship can only be justified if the union is in fact a ma- jority union. And this fact can be established only if the strikers re- main "employees" of the company. It seems to me that Penney and the related cases more appropriately belong in my camp. There is yet another reason why I disagree with the result reached by my colleagues. They assert that, even without regard to the "loss- 25109 NLRB 754. 26 E g , Brotherhood of Locomotive Firemen and Enginemen (Pheip8 Dodge Corpora- tion, Morenci Branch ), 130 NLRB 1147. 27 See Sections 8(a) (5) and 9 (a) of the Act. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of-status" provision, the strikers were validly discharged because the strike was unlawful under Section 8(d) (3) and hence the strikers were engaged in an unprotected concerted activity. This is not a case where employees have struck in violation of a no-strike agreement (e.g., Budd Electronics, Inc., 137 NLRB 498) or to compel an em- ployer to violate the Act (e.g., Mackay Radio and Telegraph Com- pany, Inc., 96 NLRB 740), decisions to which my colleagues advert to support their alternative thesis. In those cases, the strike was in direct support of the illegal object which their union was pursuing. Here, the employees struck, not in furtherance of the Union's failure to give the 30-day notice under Section 8(d) (3), but to exert economic pressure upon Respondent to obtain a lawful collective-bargaining agreement. Their strike was therefore totally unrelated to their Union's violation of that section. I fail to perceive how such a strike acquired a taint of illegality or how the employees' otherwise lawful conduct can be translated into unprotected concerted activity. If my colleagues' assertion is pressed to its logical conclusion, then all em- ployee strike action, regardless of how lawful its object or purpose, becomes unprotected whenever their union concurrently violates the Act. I submit that this conclusion lacks support both in the statute and in decisional law23 Contrary to the majority, I conclude that the "loss of status" clause in Section 8 (d) applies exclusively to strike action taken by employees during the 60-day period specified in Section 8(d) (1) and (4). I would therefore find that, having struck the Respondent after that period had expired, the economic strikers herein retained their status as "employees" within the meaning of the Act and did not engage in unprotected activity, and that Respondent violated Section 8(a) (3) by discharging them .29 Accordingly, I would order Respondent to reinstate them and make them whole for any loss of pay they may have suffered by reason of their discharge. I would also find that, as the strikers remained employees of the Respondent during the course of their strike, the Union retained its majority representative status.30 I would therefore order the Respondent, upon request, to bargain with the Union, provided the Union comes into compliance with the notice requirements set forth in Section 8 (d) (3) 31 ' in the Local Union 219 and J C Penney cases, upon which the majority reline the unions were found to have violated Section 8 (b) (3) by their failure to give the requisite notices under Section 8(d) (3) While the Board and the Court held that the vnionc had engaged in unfair labor practices and could be enjoined therefrom , there is no suggestion that the striking employees, who sought to obtain a lawful labor agreement lost the pro- tection of the Act by engaging in the strike =° in view of this finding , I do not reach or consider the additional grounds relied upon by the Trial Examiner , and rejected by the majority , for finding that Respondent violated Section 8(a ) ( 3) by discharging the strikers. m Respondent's sole defence to the refusal -to-bargain charge was predicated upon the Union 's loss of majority status occasioned by the discharge of the strikers 31 See Retail Clerks International Association, Local No. 1179 (J C Penney Company), vnpra ; Brotherhood of Locomotive Firemen and Enginemen (Phelps Dodge Corporation, Moreno! Branch), supra FORT SMITH CHAIR COMPANY 527 INTERMEDIATE REPORT On June 20, 1961, Local 270, United Furniture Workers of America, AFL-CIO, herein called the Union, filed charges in the above-entitled matter against Fort Smith Chair Company, Fort Smith, Arkansas, herein called the Respondent. On December 29, 1961, the General Counsel 1 issued a complaint and notice of hearing alleging that on or about June 8 2 the Respondent discharged 202 of its employees, and has since failed and refused to reinstate them, because they joined or assisted the Union or engaged in concerted activities or participated in a strike It is further alleged that, since on or about June 9, the Respondent has refused to bargain with the Union upon request, although the Union was the statutory representative of the Respondent's employees in an appropriate unit. It is alleged that this conduct violated Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act. Thereafter the Respondent filed an answer and an amended answer admitting that on and before May 31 the Union had been the representative of the Respondent's employees in an appropriate unit, and admitting that from on or about June 9 the Respondent had refused to bargain with the Union, but denying that on or after that date the Union was the bargaining representative of the employees. The answer further alleges that the refusal to bargain was justified by the fact that the Union instigated an illegal work stoppage in violation of Section 8(d)(3) and (4) of the Act. The amended answer also admits that, on or about June 8, the Respondent discharged certain employees because they were engaged "in an unlawful work stoppage." The amended answer further denied that the Respondent discharged certain other employees. Pursuant to notice, a hearing was held before Trial Examiner Sydney S. Asher, Jr., on February 21 and 22, 1962, at Fort Smith, Arkansas. All parties were represented and participated fully in the hearing. United Furniture Workers of America, AFL- CIO, appeared and was permitted to intervene. The General Counsel amended his complaint to strike therefrom the names of 16 alleged dischargees.3 On or before April 16, 1962, all parties filed briefs, which have been duly considered .4 Upon the entire record in this case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT There is no dispute, and it is found, that the Respondent is, and at all material times has been, engaged in commerce as defined in the Act, and its operations meet the Board's jurisdictional standards; 5 and that the Union is, and at all material times has been, a labor organization as defined in the Act. A. Facts The Respondent and the Union have had bargaining relations since approximately 1940. From the inception of this bargaining relationship, contract negotiations were conducted by an employer's group called the Furniture Association, of which the Respondent was a member. In the contracts resulting from such negotiations, each of the companies comprising the Furniture Association was a named party, and each signed the agreement. As a result of contract negotiations in 1957, two of the companies, the Respondent and Ballman-Cummings Furniture Company, jointly entered into a separate supplementary agreement with the Union described as a 1 The term "General Counsel" Includes the General Counsel of the National Labor Rela- tions Board and his representative at the hearing. a All dates herein refer to the year 1961 unless otherwise noted. 3 The remaining 186 alleged dischargees are listed in Appendixes A and B attached hereto. + The General Counsel's brief on page 4 sets forth the details of the Union's membership meeting of June 1. However, the record shows that this was not evidence but Instead was merely an offer of proof which was rejected. The General Counsel, on pages 11 and 12 of his brief, also argues that Weeks, a witness for the Respondent, was not credible because he could not remember Bearce's testimony. But the testimony of Condren, an- other witness for the Respondent, indicates that Weeks had left the hearing room before Bearce took the stand. 5 The Respondent is an Arkansas corporation with Its place of business at Fort Smith, Arkansas, where it Is engaged in the manufacture of furniture. The Respondent annu- ally ships products valued at more than $1 million from its Fort Smith, Arkansas, plant directly to destinations outside the State. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "stipulation." On October 15, 1958, the Union and the Furniture Association, which included the Respondent, executed a contract which provided, in part: ART. XIV-TERMINATION Section 1. This Agreement ... shall run to and including October 14, 1960. Either party shall give to the other notice in writing at least sixty (60) days prior to said expiration date of its desire to amend or cancel this agreement on said expiration date. In the absence of such notice, this Agreement shall continue in effect for an additional year. Prior to October 14, 1960, this contract was reopened by the Union in accordance with the notice requirements of Section 8(d) of the Act. On October 15, 1960, the Union and the Respondent agreed by letter as follows: Upon expiration of the Collective-Bargaining Agreement between Forth Smith Chair Company and United Furniture Workers of America, it is agreed .. . that the said agreement shall be continued in full force and effect without any change whatever, except as hereafter stated, through the 31st day of May 1961. The only change in said Agreement is [here follows an agreement to increase base rates in certain instances, and an increase in the Respondent's contribution to the insurance plan]. Otherwise the contract shall continue in all respects through May 31, 1961.... On February 23, 1961, the parties further agreed by letter in part as follows: This letter is to confirm an understanding ... reached in connection with the negotiation of the current contract which is to expire June 1, 1961. In view of the fact that ... the contract by its terms expires June 1, [here follows an agreement regarding vacation pay]. On March 27, a representative of the Union wrote to the Respondent in part as follows: On behalf of our organization, it is our desire to cancel the labor agreement between your Company, and our organization and to negotiate a new contract to take the place of the contract expiring June 1, 1961. We herewith give you 60 days notice as provided in the Taft-Hartley Bill, and we also, hereby give you 60 days notice as provided for in Article XIV of the existing labor contract . . . that the Union will consider the contract as ter- minating on ... June 1, 1961. The Union will keep in effect the existing terms and conditions of employment until the expiration date of said contract, namely June 1, 1961. It is our hope that we will have no difficulty in reaching a new and modified agreement. Prior to June 1, neither the Federal Mediation and Conciliation Service offices in St. Louis, Missouri, and Little Rock, Arkansas, nor the Arkansas Department of Labor received notices from the Union that a dispute existed between the Respondent and the Union in regard to the contract which was to expire on May 31. The parties held negotiating sessions on May 29 and 31. The Union's chief spokes- man was Louie Campbell, its business representative. The main spokesmen for the Respondent were Edgar E. Bethel], its attorney, and John Ayers, its secretary- treasurer. Each side presented its demands. Among the Respondent's proposals was to add a phrase reading: "No employee has a vested right in any level of incentive earnings." This evoked a great deal of discussion. By noon on May 31 (1) the Re- spondent had agreed to the Union's demand that monther-in-law and father-in-law should be added to the definition of family in the holiday clause; (2) the Union had agreed to one of the Respondent's demands; 6 (3) the Union had presented its "money demands" of a wage increase of 2 cents per hour "across the board" and an extra holiday, Christmas Eve; and (4) the Respondent had rejected these "money demands" on the ground that it had been losing money for over 4 years. After a luncheon recess bargaining resumed, and Campbell announced that the Union was withdrawing its "money demands" and offered to extend the "old" contract for O According to Campbell this was an addition to the contract providing that an em- ployee should notify the Respondent, if possible, if he was not going to be able to report for work. Bethell and Ayers testified that this was a change in the method of presenting a new standard to an employee. I deem it unnecessary to resolve this conflict. FORT SMITH CHAIR COMPANY 529 another year, with the two changes already agreed upon.? After another recess, the Respondent presented six demands. These included the two changes already agreed upon, the controversial "no vested rights" clause, and several others. Campbell importuned the Respondent's representatives to withdraw the "no vested rights" clause on the ground that it might result in lower earnings and the employees would not accept it, especially when they had dropped their "money demands." Ayers was adamant on this subject, insisting that the Respondent's perilous financial position required that it "had to have some help before we could enter into a contract." 8 After further discussion of the "no vested rights" clause, Ayers told Campbell "this was it, that's all there was, and to take it to the people and let them vote on it." 9 Campbell replied that he could not recommend the Respondent's proposition to the Union's members.10 The meeting then ended. On the following morning, June 1, the Union held a membership meeting. A secret ballot was taken on the question: "Do you wish to accept the Company offer?" The result was overwhelmingly "No." On the same day most, if not all, of the Respondents' production employees struck the plant, and picket lines were estab- lished; the plant ceased production operations. Another negotiating meeting was held on June 7 which was attended by a repre- sentative of the Federal Mediation and Conciliation Service. The parties' positions remained about the same. The Union's negotiators renewed their offer to extend the "old" contract for another year, with the changes already agreed to, but the Re- spondent refused. There was more discussion of the "no vested rights" clause, and Campbell asked "why didn't they just forget it . . . and then there would be no strike." Bethell offered to revise or rewrite the objectionable clause, and Campbell replied: "If you want to water it down some . . . maybe . . . we might buy it." A meeting was then scheduled for the following day. At the meeting of June 7 Bethell learned for the first time that notices of the ex- istence of a dispute had not been received by the Federal Mediation and Conciliation Service. On June 8 Ayers sent a telegram to Campbell which read: Because of the unlawful character of the present work stoppage at Fort Smith Chair Company you are advised that the company declines to continue negotia- tions with Local 270 of the United Furniture Workers and that the employment of all people who have participated in the unlawful strike is terminated. There were no further negotiations. On the same day the Respondent sent to each production employee who had been scheduled to work on June 1 (listed in Appendix A attached hereto) a letter which read, in part: "As a result of your par- ticipation in the illegal work stoppage . . . your services with this Company are terminated." At the same time the Respondent sent to each production employee who had not been scheduled to work on June 1 (listed in Appendix B attached hereto) a letter which read, in part: On June 1 our employees began a work stoppage. Our records reflect that you were not scheduled to be at work on that date. We, therefore, do not know whether you are participating in the strike. . . If you have not reported for work, or have not made arrangements for a leave of absence on or before Tuesday, June 13, we will assume that you are taking part in the strike, and your employment with the Company will be terminated. On June 13, the plant resumed production operations and new employees were hired. Thereafter the Respondent made certain changes in its wage structure and incentive system without consulting the Union. The picketing continued through 7 This finding is based upon the credited testimony of Bethell and Ayers, corroborated by that of two members of the Respondent's bargaining team. Campbell testified that he offered an extension of the old contract with or without the two modifications already agreed upon. In this he was corroborated by two members of the Union's negotiating committee. Although all witnesses impressed me as sincere , I consider the memory of Bethell and Ayers on this subject more accurate than that of Campbell 8 The quoted language is from Ayers' testimony . Bethell testified that the Respondent's spokesmen told the union committee that they regarded these clauses as "essential to having a contract." 9 The General Counsel's witnesses testified that Ayers added "take it or leave it" and pounded the table ; the Respondent's witnesses denied that Ayers used these words or that be pounded the table . I deem it unnecessary to resolve this conflict. 10 The Respondent's witnesses testified that Campbell added that if the Union' s member- ship rejected the Respondent's proposition "we are going to start right back where we started and our offer is withdrawn ." I do not consider it necessary to make a finding with regard to this alleged remark. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD December 14. On December 15 Campbell wrote to the Respondent notifying it that the strike had been terminated and applying unconditionally for reinstatement on behalf of all the strikers. None of the strikers has been reinstated, but some of them have returned to work as new employees. (See Appendixes A and B.) B. Contentions of the parties and the issue The General Counsel maintains that the Union's strike was not designed to "ter- minate or modify" the contract and that therefore notice to the Federal Mediation and Conciliation Service under Section 8(d)(3) of the Act was unnecessary. It follows, urges the General Counsel, that the strike was an economic strike protected by Section 7 of the Act, and the discharges of 186 employees for engaging in the strike violated Section 8(a)(3) of the Act. The General Counsel also takes the position that the Respondent's telegram of June 8 constituted a refusal to bargain with the statutory representative violative of Section 8(a) (5) of the Act. The Union and the Intervenor agree with the General Counsel, but go even further: they con- tend that the Respondent did not bargain in good faith during the sessions of May 29 and 31 and that therefore the strike was an unfair labor practice strike, to which Section 8 (d) (3) of the Act does not apply. The Respondent, on the contrary, insists that Section 8(d)(3) of the Act is ap- plicable, and therefore the failure of the Federal Mediation and Conciliation Service to receive notice from the Union of the existence of a dispute made the work stoppage an unprotected strike. Under the last sentence of Section 8(d) of the Act, urges the Respondent, each individual who participated automatically lost his or her "status as an employee" and it follows that neither the discharges nor the refusal to bargain thereafter were violative of the Act. It can thus be seen that the principal issue herein is a narrow one: Under the cir- cumstances here present did the failure of the Federal Mediation and Conciliation Service to receive from the Union the notice described in Section 8(d)(3) of the Act remove the strike from the protection of Sections 7 and 13 of the Act, and automatically deprive the participants of their status as employees? C. The discharges 1. The purpose of the strike On the entire record I am convinced, and find, that the parties bargained in good faith ii on May 29 and 31 but were unable to reach agreement on matters which were mandatory subjects of collective bargaining. At the end of the May 31 session the Union's negotiators were willing to extend the old contract for another year, with the two relatively minor changes already agreed to. But the Respondent in- sisted upon "relief" in the form of the addition of the "no vested rights" clause and other changes, including a restriction upon holding grievance meetings during work- ing time. The Union's representatives resisted these changes. I am also convinced, and find, that what the Respondent was seeking constituted modification of the old contract.12 Furthermore, there is abundant evidence that the major stumbling block to agreement was the Respondent's adamant insistence upon adding the "no vested rights" clause, and the Union's equally adamant refusal to add such a clause. This is not said critically, for unquestionably the parties had every legal right to so insist. But there is in my opinion no escape from the conclusion that the Respondent's de- mand, if acceded to, would have materially altered the contract, as earlier interpreted by the arbitrator.13 In sum, then, by the close of the May 31 meeting, the Union 11 The contrary contention of the Union and the Intervenor is rejected. 12 Ayers testified as follows: TRIAL EXAMINER: In your opinion was the Company's attempt to get the grievance procedure after working hours an attempt to get a change in the contract'' The WITNESS: It was a slight change, sir. TRIAL EXAMINER: It wasn't a change of condition, but it was a limitation, was it not, that wasn't in the old contract? The WITNESS: That is correct, sir . . . 1s The fact that the Respondent had requested the arbitrator to reconsider does not aid the Respondent, because the contract provides: "All decisions of the Arbitrator shall be final, conclusive and binding upon all parties." [Emphasis supplied ] FORT SMITH CHAIR COMPANY 531 was willing to renew the old contract with changes already agreed upon, but the Respondent was not. The Respondent wanted additional changes, of a material nature, and to this the Union refused to agree. Let us turn, then, to the strike. The vote of the Union's membership rejected the Respondent's final offer. Since the contract therefore expired, this was treated as a strike vote. In the light of the above, I conclude that the purpose of the strike from its inception was to force the Respondent to abandon its insistence upon sub- stantial changes in the contract, particularly the "no vested rights" clause 14 This was still the purpose on June 7, when Campbell suggested that the Respondent "for- get" its demand for the "no vested right" clause and added "then there would be no strike." It was thus the Respondent, rather than the Union, which was bent upon modifying the old agreement. Indeed, the Respondent unilaterally did so after June 13. 2. Conclusions Section 8(d) of the Act, as amended, provides, in part, as follows: . where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof. .. . (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, . . . and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purposes of sections 8, 9, and 10 of this Act, as amended... . The notice requirements of Section 8(d)(1) and (3) do not apply to every strike. It has been held that they are inapplicable to unfair labor practice strikes.15 Nor do they apply to every economic strike, as the Respondent seems to argue. Of these requirements, the Supreme Court said in the Mastro Plastics case: The Board reasons that the words which provide the key to a proper inter- pretation of § 8(d) with respect to this problem are "termination or modifica- tion." Since the Board expressly found that the instant strike was not to ter- minate or modify the contract . . . the loss-of-status provision of § 8(d) is not applicable . We sustain that interpretation.16 Here, as in Mastro, the object of the strike was "not to terminate or modify" the contract. It follows that here, as in Mastro, the loss-of-status provision of Section 8(d) of the Act does not apply. The strikers were therefore engaged in a lawful economic strike protected by Sections 7 and 13 of the Act. It was accordingly a violation of Section 8(a) (1) and (3) of the Act for the Respondent on June 8, 1961, and later, to discharge the employees listed in Appendixes A and B attached hereto because they participated in such concerted activity. Moreover, these discharges (along with the refusal to bargain discussed below) unlawfully prolonged the strike and converted it from an economic into an unfair labor practice strike. 14 Although the Union' s position on May 31 was that it would renew the old contract with the two changes already agreed to, it cannot seriously be contended that it struck to obtain these two minor changes. A union does not strike to obtain terms to which the employer has already agreed. 15 Mastro Plastics Corp., et al. v. N L R B , 350 U.S. 270. 16 Mastro Plastics Corp , et al. v. N L.R.B., supra, at 286. 717-672-64-vol. 143-35 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The refusal to bargain 1. The appropriate unit The complaint alleges, the answer admits, and it is found that at all material times all the Respondent's production and maintenance employees, excluding office clerical employees, foremen, inspectors who do no production work, timekeepers, salesmen, over-the-road truckdrivers, and supervisors as defined in the Act constitute a unit appropriate for collective bargaining. This is the same unit agreed upon by the parties in their contract of October 15, 1958. 2. The Union's majority status The complaint alleges that the Union is and at all material times has been the statutory bargaining representative of the employees in the unit described above. The amended answer admits that the Union was such representative on and before May 31, but denies that it remained in this status on or after June 1. The Respondent's theory seems to be that the Union's failure to comply with the notice requirements of Sec- tion 8(d)(3) and (4) of the Act caused those who participated in the strike which began on June 1 to lose their status as employees; hence the Union thereby lost its majority status. However, it has been found above that the loss-of-status provision of Section 8(d) of the Act did not apply to this strike. It follows that the Union never lost the majority status it admittedly enjoyed on May 31. 3. The demand and the refusal The complaint alleges that, since on or about June 9, the Union has requested the Respondent to bargain regarding the working conditions of the employees in the above-described unit, but that the Respondent has refused since then to recognize or bargain with the Union. The answer denies that the Union made any demand for bargaining since on or about June 9, but admits that thereafter the Respondent refused to bargain. The record shows that the parties were in the midst of bargaining and had a session scheduled for June 8. The Respondent's telegram of that date, quoted above, abruptly broke off negotiations and automatically canceled the scheduled session. A reading of this telegram makes it abundantly clear that any further request for recog- nition or bargaining would have been futile. Under these circumstances, no new demands by the Union were necessary to bring into play the statutory duty of the Respondent to continue negotiations then in progress.17 It is accordingly found that by dispatching the telegram of June 8 to the Union and by thereafter unilaterally changing the working conditions of its employees without prior consultation with the Union, the Respondent violated Section 8(a)(1) and (5) of the Act. THE REMEDY In my opinion, the unfair labor practices found stemmed not from a rejection of the collective-bargaining principle (there had been bargaining for many years) but solely from an interpretation of Section 8(d) of the Act which I have found to be erroneous. I therefore am convinced and find that there is here no danger that the Respondent will commit other unrelated unfair labor practices in the future. Ac- cordingly, it will only be recommended that the Respondent cease and desist from the unfair labor practices found, or any like or related unfair labor practices. Affirmatively it will be recommended that the Respondent, upon request, bargain with the Union as the exclusive representative of the employees in the appropriate unit, and if an agreement is reached embody such understanding in a signed contract. It will further be recommended that the Respondent offer to the employees listed in Appendixes A and B immediate and full reinstatement to their former or substan- tially equivalent jobs, without prejudice to their seniority or other rights and privi- leges, discharging if necessary any employee hired after June 8, 1961, when the eco- 17 No impasse had been reached then because the Respondent had agreed to rewrite the clause in question Even if an impasse had been reached which conceivably might have permitted the Respondent to break off negotiations, this was not the reason set forth in the telegram. And while the telegram is phrased only in terms of declining to continue negotiations it is clear from its tenor that it constituted more, namely a refusal to recognize the Union's majority status, which of course is not justified by an impasse. FORT SMITH CHAIR COMPANY 533 nomic strike was converted into an unfair labor practice strike.18 It will further be recommended that the Respondent make each of them whole for any loss of pay he or she may have suffered by paying to him or her a sum of money equal to that which he or she would normally have earned from December 14, 1961, the date of the unconditional offer to return to work, to the date of the offer of reinstatement, less his or her net earnings during such period. The backpay provided for herein shall be computed in a quarterly manner, as established by the Board.19 It will further be recommended that the Respondent preserve and make available to the Board or its agents all records needed to determine the amount of backpay due hereunder, and post the usual notices. The General Counsel requests that the Respondent additionally be required to re- imburse the discharged employees plus interest computed at the rate of 6 percent per annum, commencing with the end of the first calendar quarter in which the discriminatory discharges were committed and each succeeding quarter until pay- ment therefor is made or tendered. The General Counsel's brief convinces me that the request is a reasonable one, and I accordingly recommend that the Respondent reimburse the dischargees for such interest. On the basis of the above findings of fact and upon the entire record in this case, I make the following- CONCLUSIONS OF LAW 1 Fort Smith Chair Company is, and at all material times has been, an employer within the meaning of Section 2(2) of the Act. 2 Local 270, United Furniture Workers of America, AFL-CIO, is, and at all material times has been, a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees of the Respondent, excluding office clerical employees, foremen, inspectors who do no production work, timekeepers, salesmen, over-the-road truckdrivers, and supervisors as defined in the Act, consti- tute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. Local 270, United Furniture Workers of America, AFL-CIO, was on June 8, 1961, and at all times since has been, the exclusive representative of the employees in the above-described unit for the purposes of collective bargaining within the mean- ing of Section 9(a) of the Act. 5. By withdrawing recognition from Local 270, United Furniture Workers of America, AFL-CIO, as bargaining agent for the employees in the above-described unit on and after June 8, 1961, and by thereafter unilaterally changing the working conditions of employees in the above-described unit without prior consultation with the above-named labor organization, thereby failing and refusing to bargain collec- tively with the said labor organization as the exclusive representative of the em- ployees in the above-described unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6 By discharging the employees listed in Appendixes A and B, thereby discrim- inating in regard to the hire and tenure of employment of its employees and dis- couraging membership in a labor organization, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By the above-described conduct the Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The above-described unfair labor practices, occurring in connection with the Respondent's operations, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof, and constitute unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication ] 18 See General Drivers and Helpers Union, Local 662 , etc v N L R B (Rice Lake Creamery Company, Intervenor), 302 F. 2d 908 (C.A D C ) 'I F. W Woolworth Co , 90 NLRB 289. In calculating backpay , whether to apply the wages and incentive standards existing on May 31, 1961 , or those put into effect uni- laterally by the Respondent after June 13, 1961, is a matter for determination at the compliance stage of this proceeding. 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED JUNE 8, 1961 Charlie Abney Virgil Harvell Clarence Robertson Ervin Adkins Ruth Hassell Eddie Robison Clifford Aldridge Ilarlen Hawkins Jerry Rogers Robert Anderson Herbert Hawkins I William Rucker Frank Ballard Gerald Hay Lucille Ruckman Travis Ballard 1 L. C. Hayes Orville Satterfield James Barker Billy Hesson 1 Eugene Schmalz Retha Barnard E. C. Hesson Larry Seabolt Charley Barnes Fula Hopkins 1 Olen Shafer Eunice Bartlett Leonard Howard Ursula Shields Jean Battles Cecil Hubbard Jack Short Mildred Battles 1 James Hulsey Martha Sloss Raymond Battles Mildred Hunter Richard Sloss Johnny Beagle Aaron Hydge J C. Small Clyde Bearce Bessie Jiles Dorothy Smith Harrison Beckham Carl Jones Bobby Sparkman 1 Everett Been Lennie Keck Donald Spradling Billy Belt Jimmy Kinnerson Jewell Stallings Garrette Belt Roy Kirby Oscar Stapp Omer Blythe Henry Kusel Cecil Stephens 1 Conway Bowlet Alfred LaRue Harry Stephens Roland Boyette Clyde LaRue Joe Stevens Lee Brewer Jerry LaRue Henry Stewart Connie Brown Lester Lovell Louis Stroud' Irving Brown Verna Lovell Charles Swaim Perry Brunk Leonard Mankins Bertie Sweet Freddy Cagle Mary Martin Willie Sweet J. E. Carr Jimmy Matlock Ferrell Tabor Jennie Casto Orlan Matlock John Thomas E. R. Chadwick John Mayfield 1 Claudie Tindall 1 Charles Chapman Martha McClendon Pleasant Todd D. C. Cherry Elzie McDonald Martin Toon Jessie Coppinger Rachel Meadors Elsie Treat Jim Crabtree V. J. Mean Zady Tucker Agnes Darter Dorothy Milburn Frank Vann Dwain Derrick Earl Moore Clifford Vaughan Will Doss Corthel Mongold J. L. Vaughan Velma Doyel Clinton Morris John Vaughan Marvin Durham 1 Winfred Nelson Ulysses Vaughan Tracy Durham Kenneth Nena Jewell Vernon Floyd Dustman Darrell Newton Jessie Wadkins Winfred Dustman Lilly Ohm N. S. Walkord Susie Earls William Olander Grace White Ray Easter Tommy Orsborne Jess White Ison Edwards Raymond Patterson Charles Whithurst Noah Edwards Eula Mae Pennington George Whitledge William Eiland Susie Pinkerton 1 Roy Whitsett Billy English Henry Pitchford Harrison Willhite 1 Emmett Fleetwood Agnes Pool1 Herbert Willhite Frankie Freeman Jasper Potts James Williams Russell Freeman Charles Proctor Charles Wilson Elizabeth Friga William Radcliff Jack Wilson Darrell Gallihar Esther Reavis Johnny Wilson Goldie Gilbert Walter Reed Riley Wilson Johnnie Gilbert William Rhodes Vesta Wilson Otis Gilliam Clifford Ridenoure Lawrence Woodward Thomas Green J W. Riggs Eula Belle Young Gladys Harman Leo Roberts Harrison Young Jimmy Harris 1 Returned to work in August, September, or December 1961 as a new employee. LAWN-BOY DIVISION OUTBOARD MARINE CORP. 535 APPENDIX B PERSONS WHO RECEIVED LETTERS FROM RESPONDENT DATED AFTER JUNE 8, 1961 (Date letter was received is indicated after each name) Olen Ballard----------- June 28, 1961 Essie Rhodes ----------June 27, 1961 Alex Banning----------July 17, 1961 Mary Scholze ----------June 14, 1961 Audra Dustman 1-------June 27, 1961 Charles Spangler--------June 27, 1961 Martin Hatley---------- July 21, 1961 A. L. Spence ---------- Nov. 16, 1961 Jimmy Hix 2.......... . July 17, 1961 Buster Whisenhunt------Sept. 21, 1961 Aline Petree----------- June 14, 1961 1 Returned to work on December 26 , 1961, as a new employee. 2 Name spelled as amended at the hearing. Lawn-Boy Division Outboard Marine Corp. and International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America (UAW), AFL-CIO, and Local Union 683. Case No. 17-CA-,3006. June 208, 1963 DECISION AND ORDER On April 1, 1963, Trial Examiner George A. Downing issued his Intermediate Report in the above-entitled proceeding, finding that, except for an isolated, violation of Section 8 (a) (1) too minor in char- acter to warrant issuance of a remedial order, the Respondent had not engaged in unfair labor practices as alleged in the complaint. Ac- cordingly, he recommended that the complaint be dismissed in its en- tirety, as set forth in the attached Intermediate Report. Thereafter, the General Counsel, the Respondent, and the Charging Party filed exceptions to the Intermediate Report and 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 [Chairman McCulloch and Members Leedom and Brown]. 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 Interme- diate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner.' [The Board dismissed the complaint.] 1 The Trial Examiner found, and we agree, that the Respondent did not refuse to fur- nish the Union with certain information which the Union requested during bargaining negotiations. In so finding, the Trial Examiner relied , in part, on testimony by W. C. James, Respondent' s director of industrial relations, to the effect that the testimony of the Union's witnesses at the hearing "was his firdt knowledge that they questioned the correct- ness of any of the information which he supplied." As this testimony was stricken from the record, we do not rely on it in adopting this finding, which is supported by other evidence. 143 NLRB No. 57.