Tom Joyce Floors, Inc.

896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD knew that, said Joint Board's majority was obtained unlawfully, entered , into an illegal collective -bargaining contract20 it will be recommended that said . contract be denied any force or effect, and. that said Company withhold recognition from said Joint Board unless and until the Joint Board has been certified by the Board. Although I have found that Respondent Company entered into an illegal contract containing a checkoff clause, I am unable to find that this clause was enforced or that employees were coerced to execute checkoffs .27 Hence it will not be recommended that employees be reimbursed for any sums which may have been deducted pursuant to the checkoff involved. Local 60, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, et al. (Mechanical Handling Systems) v. N.L.R.B., 365 U.S. 651. Cf. Lykes Bros. Inc. of Georgia, 128 NLRB 606 ; Galveston Maritime Association, Inc, et al., 139 NLRB 352, 354. Since the unfair labor practices found do not go to the very heart of the Act , it will be recommended that an order of limited breadth be entered. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Amalgamated , Retail Clerks, and the Central States Joint Board are labor organizations within the meaning of Section 2 (5) of the Act. 2. Respondent Company, Atlantic Mills Servicing Corp. of Wisconsin d/b/a Atlan- tic Thrift Center, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 3. By rendering illegal assistance to the Central States Joint Board and by contribut- ing financial support to said Joint Board , by recognizing the Joint Board, and by entering into, maintaining, and giving effect to an illegal contract with said Joint Board, whose majority was unlawfully obtained , Respondent has engaged in and is engaging in unfair labor practices forbidden by Section 8(a)(1) and (2) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 5. Respondent Amalgamated has not committed the unfair labor practices ascribed to it in the complaint. [Recommended Order omitted from publication.] 28 The checkoff under consideration is lawful on Its face . Although the contract is illegal because obtained as a result of unfair labor practices, I am of the opinion that the checkoff provision thereof is not per se unlawful and that such clause falls only because the entire contract is vitiated. n No evidence was elicited that any checkoffs had been executed by employees. Tom Joyce Floors, Inc. and Local No. 567, Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO. , Case No. 20-CA-2477. November 20,1964 DECISION AND ORDER On June 27, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-captioned 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 attached Inter- mediate Report. Thereafter, the Respondent filed exceptions to the Intermediate Report and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 149 NLRB No 88. TOM JOYCE FLOORS, INC. 897 this case to a three-member panel [Members Fanning, Brown and Jenkins]. 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 Inter- mediate Report and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner as noted below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as, amended, the National Labor Relations Board hereby adopts as its Order, the Order recommended by the Trial Examiner and orders that Respondent, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order.2 1 In adopting the Trial Examiner 's finding of a Section 8 ( a) (5) violation based upon Respondent's refusal to bargain about a nondiscriminatory hiring hall arrangement, we note that, following issuance of the Intermediate Report herein, the Board issued its De- cision in Houston Chapter, Associated General Contractors of America, Inc., 143 NLRB 409, holding a nondiscriminatory hiring hall to be a mandatory subject of bargaining and a matter which was not subjected by Congress under Section 14 (b) of the Act to regulation by the. States We also believe the Trial Examiner 's 8(a) (5 ) finding based upon the higher rate paid- to strike replacements to be warranted in the circumstances of this case which show that the rate paid replacements was substantially higher than that paid to strikers or offered to the Union which, on October 23, received a wage offer even less favorable than a prior one; Respondent unlawfully refused to bargain over the hiring hall; virtually all the re- placements involved were hired at the higher rate after the strike had become an unfair- labor practice strike, and no evidentiary suppoit appears for the Respondent 's assertion that the higher rate was "necessary." 2 The address and telephone number of Region 20 given in the Appendix attached to the Trial Examiner 's Intermediate Report is amended to read: "13050 Federal Building, 450 Golden Gate Avenue, Box 36047, San Francisco, California, Telephone No. 556-3197." INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges that the Respondent, Tom Joyce Floors, Inc. (herein also, called the Company), has refused to bargain regarding wages and hiring practices with a labor organization named Local No. 567, Brotherhood of Painters , Decorators and Paperhangers of America , AFL-CIO ( also referred to herein as the Union ), as the, duly designated representative of an appropriate bargaining unit of employees , thereby violating Section 8(a)(5) and (1) of the.National Labor Relations Act, as amended (29 U.S C. 151 et seq., also called the Act herein).1 The Respondent has filed an answer, which, in , material substance, denies the com- mission of the unfair labor practices imputed to it in the complaint. Pursuant to notice duly served by the General Counsel of the National Labor Rela- tions Board upon the other parties, a hearing upon the issues in this proceeding has been held before Trial Examiner Herman Marx at Reno, Nevada. Each party ap- 'The complaint was issued on February, 20, 1963 , and is based upon a charge filed by the Union with the National Labor Relations Board on November 20, 1962 . Copies of the- complaint and charge have been duly served upon the Respondent It may be noted, also, that the complaint originally included averments that the Respondent has refused to bar- gain with respect to employees' travel allowances , and the employment of personnel on a geographical basis in certain circumstances ; and that these allegations were dismissed at- the hearing in this proceeding upon the unopposed motion of the General Counsel. 770-076-65-vol. 149--58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD peared through, and was represented by, counsel, and was afforded full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. I have read and considered the respective briefs of the parties filed with me since the close of the hearing.2 Upon the entire record, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. NATURE OF THE COMPANY'S BUSINESS JURISDICTION OF THE BOARD The Company is a Nevada corporation; maintains its principal office and place of business in Reno, Nevada; is there engaged in the business of installing floors and floor coverings in residential and commercial buildings; and is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. In the course and conduct of its business the Company "annually" purchases and receives at its place of business in Reno, Nevada, goods which are shipped directly to it from locations outside the State of Nevada. The products so transported each year are valued in excess of $50,000. By reason of such interstate shipments, the Company is, and has been at all material times, engaged in interstate commerce, and in operations affecting such commerce, within the meaning of Section 2(6) and (7) of the Act. Accordingly, the National Labor Relations Board has jurisdiction over the subject matter of this proceeding. II. THE LABOR ORGANIZATION INVOLVED As the complaint alleges, and the answer admits, the Union is, and has been at all material times, a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. The operative facts As the record establishes, without dispute, "all employees of the Respondent's Reno, Nevada, operation, excluding office clerical employees, salesmen, guards, and supervisors, as defined in the Act" constitute, and have constituted at all times ma- terial to the issues, a unit appropriate for collective-bargaining purposes, within the meaning of Section 9(b) of the Act. In a representation election, held under the auspices of the National Labor Rela- tions Board on August 28, 1962, a majority of the nine employees then in the unit designated the Union as their bargaining representative. Based on the results of the election, the Regional Director of the Board's Region 20, on September 6, 1962, duly certified the Union's representative status. The labor organization is now, and has been at all times material since the election, the exclusive bargaining represen- tative of all the employees in the unit, within the meaning of Section 9(a) of the Act. Following the election, upon the Union's request for bargaining with respect to wages and other terms and conditions of employment of the employees in the unit, the Company and the Union held a number of negotiating meetings in Reno, Nevada, beginning with one on August 31, 1962. At that time, all but one of the nine employees in the unit were employed at an hourly rate of $3.50, the exception (who was apparently classified as a foreman) receiving $3.75 an hour. At the first meeting, the Union was represented by a business agent, Gene Crum- ley, and the Company by its president, Carleton Sampson, and one of its directors, 2 The transcript of the hearing Is garbled at a considerable number of points, containing many mangled words and sentences , and, on occasion , the attribution to one participant in the hearing of statements made by another. An example of the latter may be found at page 109, line 21, where the remark "I join In that particular position" is attributed to me, instead of the General Counsel who made the statement to signify assent to a position taken by the Union. A vice of the error is, obviously, that it falsely portrays the Trial Examiner as deciding a material issue before receipt of the briefs and full consideration of the subject. It may be noted, too, that the phrase "Sections-613 230, 2613 300" (of Nevada Revised Statutes), appearing at page 93, lines 20 and 21, should read "Sections 613.230 to 613 300 " These statutory provisions, as will appear, pertain to a major issue in this case. Fortunately, the transcript 's shortcomings do not preclude a determination of the issues, for the evidence is undisputed, much of the operative facts are contained in documents , stipulations , and admissions , and all counsel have filed excellent briefs, which deal lucidly with the issues. As the material facts and issues adequately appear, I refrain, in the absence of a motion by any party, from entering an order correcting the many in- accuracies in the transcript. TOM JOYCE FLOORS, INC. 899 identified in the record only by his surname, Pessey. In the course of the discussion (much of which is not material to the issues and is thus not detailed here), Crumley gave the Company's representatives a -form of agreement , terming it "a pilot con- tract," and stating that the Union did not expect the Company to sign the document, but deemed it a starting point for negotiations. Whether the document may properly be treated as a contract proposal by the Union is of no moment , for its material provisions are for all practical purposes the same as those embraced in a proposed agreement submitted by the Union to the Company at a subsequent meeting (a mat- ter that will be discussed at a later point). For present purposes, it is sufficient to note that the "pilot contract" included provisions for wage rates; contributions by the signatory employer to a health and welfare fund for the employees subject to the agreement; and hiring practices. The upshot of the meeting was that the Company's representatives said they would examine the "pilot contract," and that the parties agreed to meet again a week later. As thus arranged, the negotiators met again September 6, 1962. Much of the discussion does not bear materially on the issues, and thus need not be described here The features of the meeting worth noting are that: The Company expressed opposition to contributing to a health and welfare program; the Union made a pro- posal that if the Company would enter into "a long-term contract ... of 18 to pos- sibly 24 months ... there would be no wage increase" until January 1, 1963, but a "substantial" one at that time, and another in June 1963; no specific amount was mentioned; the Company stated that it was "interested in a long-term contract"; Crumley then asked that the Company let the Union know "how much of this con- tract" (apparently meaning the "pilot contract" submitted at the first meeting) the Company "could put into effect"; Pessey said he would inform Crumley by telephone of the Company's "best ... offer," and there was no discussion of hiring procedures. Pessey telephoned Crumley on September 10, 1962, and told the latter that the Company was willing to grant the employees two 25-cent hourly rate increases, one effective on October 1, 1962, and the second on January 1, 1963. Crumley inquired if the Company "had considered any fringe benefits and particularly health and welfare," and Pessey replied that the Company was "not ready at the time to con- sider the health and welfare program," and asked whether Crumley would submit the Company's wage proposal to the employees. Crumley agreed to do so. The Union submitted the proposal to a meeting of the affected employees, held on September 11, 1962, also informing them of the "management 's opposition to the health and welfare fringe benefits." The employees rejected the proposal. On October 2, 1962, the employees met again, voted to strike, and put the strike into effect. Soon thereafter, the Union notified the Company of the strike action by telegram. The Company and Union met with a representative of the Federal Mediation Service on October 4, 1962. After a discussion (not material here) of the legality of some language of article I (which contains the "recognition" provisions) of the "pilot contract," the mediator suggested that the Union prepare a contract it was willing to propose and sign, and the labor organization agreed to do so within a few days. The parties met with the mediator again on October 17, 1962. The material sum of what took place is that the Union submitted a proposed written contract to the Company; the latter asked for time to examine it; the Union agreed; and the media- tor set October 23, 1962, as-the date for the next meeting. The proposed contract deals with a, substantial number of subjects, but only the wage and hiring provisions, which are the same in all material respects as those of the "pilot contract," require any description here.3 The wage provisions (article VII) would establish an hourly wage rate of $4.47 for "journeymen" (in other words, for the employees in the bargaining unit) .4 8 The only difference between the hiring provisions of the "pilot contract " and those of the proposed agreement is that the latter expressly provides that "Union membership shall not be a condition of employment." It may be noted, in passing, that article III of each instrument forbids discrimination, on the basis of "Union membership, policies or requirements," in job referrals by the Union. In any case , the difference does not affect any of the issues here S The record does not, in terms, describe the employees in the unit as "journeymen," but whether or not that classification fits them, it is evident, taking the record as a whole, that the wage proposal for "journeymen" was intended by the Union to apply to the employees in the unit. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The proposedi hiring provisions (article III), to the extent material here, provide, in- substance, that: the employer notify the "office of the Union" (in other words, its hiring hall)- of job vacancies; the Union use "its' best efforts to furnish the required number of qualified' and competent workmen"; the selection of applicants for job, referral "shall be on a non-'discriminatory basis (and,) shall' not be based on, or in, any way affected- by, Union membership, by-laws, rules, regulations, Constitutional' provisions, or any other aspect or obligation' of Union, membership, policies, or requirements"; in dispatching job applicants, preference shall be given to "workmen who' have been employed on the type of work and in the territory covered by this agreement for a period of at least one year"; the employer has the right to reject any job applicant, except on the basis "of Union membership or activities"; if the Union is unable to' furnish qualified workmen within 48 hours after the employer requests them', it is free to procure them from any other source; and' "Union member- ship shall not be a condition of employment." 8 5 The following is the complete text of article III: ARTICLE III-EMPLOYEES AND HIRING PRACTICES (a) Whenever an Employer, signatory to this agreement, requires workmen, he' shall notify the office of the Union, either in writing or by telephone, stating the number of workmen required, the type of work to be performed, the starting date of the job, and its approximate duration. Nothing herein contained shall guarantee that. any such job shall be of any duration or any workman shall be employed for any specific period of time. (b) Upon receipt of such notice, the Union shall use its best efforts to furnish the- required number of qualified and competent workmen Selection of applicants for referral to jobs shall be on a non-discriminatory basis and shall not be based on, or in any way affected by, Union membership, By-Laws, rules, regulations, Constitutional' Provisions, or any other aspect or obligation of Union membership, policies, or re- quirements. Such selection will be on the following basis: 1. The Union shall maintain a list of all workmen seeking jobs who have been employed on the type of work and in the territory covered by this agreement for a period of at least one year, which list shall hereinafter be called "List A" A+ separate list shall be maintained of all workmen seeking jobs who do not meet that requirement, which, list shall hereinafter be called "List B". 2. Workmen's names shall be entered on said' list in the order in which they come to the Union's office seeking employment. 3. After each workman's name, there shall be entered a designation corre- sponding to the type or types of work which the workman is qualified to perform. Each workman, at the time of applying for a job, shall indicate his own qualifi- cations for such type or types of work, and such indication shall be conclusive unless an Employer to whom such workman is dispatched reports to the Union that, in his opinion, the workman is not qualified. In such event, before he again will be entitled to preference hereunder, such workman shall be required to pass, an objective examination given by a Qualification Committee. Said Committee' shall be selected by the appropriate Local Joint Committee and shall be com- posed of an equal number of representatives of the Employer and the Union Any employee, so rejected who has worked on any such type or types of work for a• period of more than one year shall not be required to take such examination. 4 In dispatching workmen, preference shall be given to workmen on List A. Within each list, preference shall be given to those whose designations corre- spond to the type of work involved, in the order in which their names appear on the list. If there are not sufficient workmen on List A whose designations corre- spond to the type of work involved, preference shall be given to other workmen. on said list in the order in which their names appear, and the same procedure shall be followed.with List B should the names on List A be exhausted. 5 Whenever an Employer requests a particular workman by name, the Union will furnish said workman to such Employer, if available Said workman need' not be on any list provided in the Section B-1 of this Article The interview slip provided for in Section D shall be applicable to any such particular work- man requested by name. ' (c) Any workman who feels that he has not been dispatched in accordance with the- provisions of this agreement may appeal to the Qualifications Committee, and the Committee shall have the power to reverse any decision of the Union with respect to, dispatching. In any matter, as to which the opinion of the Committee is less than unanimous, a workman dissatisfied with the opinion may appeal to an impartial um- TOM JOYCE FLOORS, INC. 901 At the next meeting, held, as arranged, on October 23, 1962, the Company and the Union discussed the proposed contract, reached accord on some of the terms, and disagreed on others. It would serve no purpose to canvass all the areas of discussion, for what is material to the issues is what was said in connection with the subjects of hiring practices and wages. Apart from a proposal by the Company, accepted by the Union, for a change in the selection of an "umpire" for the arbitration of griev- ances by job applicants that they had not been properly dispatched, the Company offered no objections to the proposed hiring provisions, and it is clear that with the amendment noted above, the negotiators reached agreement on the terms of article 111.6 On the subject of wages, the Company made a proposal, retroactively effective as of October 1, 1962, that the employees be given a 25-cent increase in their hourly rates for the duration of a contract term of 1 year, together with a paid vacation for 1 week for those "who worked forty hours a week during the year" (meaning, ap- parently, 51 workweeks of 40 hours). The Union rejected the offer, and the meeting ended with an agreement to meet on the following day. At the meeting the next day, the Company, in effect reversing its prior concurrence in the hiring provisions, requested their deletion from the proposed contract, stating that the management had been advised by an attorney that they were "illegal .. . under the Nevada `right to work' law," and that the Company would refuse to discuss the proposal in question, and would not sign an agreement that contained them. The Union inquired whether the Company intended to agree to terms one day and dis- agree the next, and stated that the hiring proposal was "a negotiable item," and that it wished to negotiate concerning the matter. After some additional discussion in which the parties adhered to their respective positions, the meeting was adjourned, at the mediator's suggestion, "subject to call by either party." On November 27, 1962, the Union sent the Company a telegram, stating that be- cause of an "announced opinion" by a judge of the Nevada District Court (a court of first instance, as the record indicates) concerning the legality of the "hiring hall clause" (in a case not involving the Respondent), and the pendency of the instant proceeding before the Board, the Union was withdrawing its "insistence on the hiring hall until such time as the Labor Board may direct bargaining on that subject or until ,a court holds the clause to be a lawful subject of economic action"; and that it wished ,to reach an agreement on the other matters in dispute. The Company replied by telegram the same day, stating, in substance, that the judge of the Nevada court had held, in an opinion, that the "hiring hall clause" was unlawful under the "Nevada Right to Work Act"; that the "opinion ... does not permit us to take any position other than that said clause is beyond the area of bargaining"; and that the Company was ready and willing to bargain with respect to permissible bargaining subjects; and suggesting that the Union submit "new proposals," advise the Company of a time and place for an early meeting, and remove the "picket lines or the threats thereof" dur- ing bargaining. On or about December 17, 1962, the Union made a proposal to the Company that they negotiate a contract "omitting all provisions which the Company ... claimed to be illegal," provided that the Company agreed to reinstate all striking employees "and pire. The umpire shall be selected by the workman and the Union. If they cannot agree upon an umpire, he shall be selected by the State Conciliation Service of the Department of Industrial Relations of the State of Nevada. The costs of any arbi- tration shall be borne equally by the workman and by the Union. The decision of the arbitrator shall be final and binding. (d) For each workman dispatched, the Union shall send to the Employer, with the workman or by mail, a written interview slip The Employer shall have the right to reject any job applicant referred by the Union, provided that he shall in no way discriminate against persons because of Union membership or activities. (e) If the Union is unable to furnish qualified workmen within forty-eight (48) hours after an Employer called for them, the Employer shall be free to procure work- men from any other source or sources. He shall, in such event, notify the Union within twenty-four (24) hours of the name and address of workmen so hired. (f) The provisions of Section (a) through (g) shall be posted by Employers and the Union in all places where notices to employees and applicants for employment are customarily posted, including the bulletin board of the Union. (g) Union membership shall not be a condition of employment. 6 The transcript quotes Crumley as testifying that the Union and the Company agreed to a modification of article III by the deletion of the words "cleaning" and "waxing." Those words are actually in article II, which is not involved in the issues. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD release any other employees not needed," and that if such provisions were subse- quently determined to be lawful "by a competent Court or Board," they automatically go into effect or be the subject of negotiation. The Company rejected the proposal. The exchange of telegrams, described above, did not result in bargaining; there have been no negotiating meetings since that of October 24; and the strike was still in progress at the time of the hearing in this proceeding. Notwithstanding the terms of the Union's telegram and of its "subsequent offer, the parties stipulated at the hearing, and I find, that "at all times" since the meeting of October 24, the Union has "insisted upon" the inclusion in an agreement of the provisions of article III of its contract proposal of October 17; and that the Company has taken "the position that said Article III'... and a hiring hall were unlawful under the Nevada (Right to Work) Act, beyond the, area of bargaining, and refused to include it or to consider it in regard to any contract that might be arrived at between the (Union) and the Respondent." In short, as the record establishes, the Company refused on October 24, and has at all material times since continued to refuse, to bargain with respect to the provisions of article 111.7 The Respondent has employed replacements for striking employees during the course of the strike, hiring 14 in all (some replacing employees hired during the strike). Beginning with the first, who was hired on October 5, 1962, a few days after the start of the strike, nine of the replacements were employed at a rate of $4 an hour; and of the remainder, four were paid at an hourly rate of $3.50, and one (who worked only 1 day) at a $3 rate. All but one of those who received the $4 scale were hired and worked at that rate prior to January 1, 1963, and thus were paid at a higher rate than the hourly scale ($3.75) proposed by the Company, on September 10, 1962, for all but one of the employees, for the 3-month period preceding January 1, 1963. The $4 rate was 25 cents higher, too, than the scale all but one of the prestrike em- ployees would have received under the Company's offer of October 23.8 The Com- pany did not consult the Union regarding the $4 rate paid replacements for strikers. B. Discussion of the issues, concluding findings There are three basic issues in this proceeding: (1) whether the Company's re- fusal to bargain with respect to the hiring provisions embraced in article III of the proposed contract submitted by the Union at the October 17 meeting is unlawful; (2) whether the Company violated its bargaining obligation by employing replace- ments for strikers at an hourly rate of $4; and (3) if the Respondent violated the Act in either of the respects mentioned above, whether its conduct prolonged the strike and had the effect of converting it into an unfair labor practice strike Resolution of the first issue hinges on a determination whether the proposed hiring provisions are "terms" or "conditions of employment" within the reach of Section 8(d) of the Act, which, to the extent material here, provides that "to bargain col- lectively is the performance of the mutual obligation of the employer and the repre- sentative of the employees to meet at reasonable times and confer in good faith with respect to wages ... and other terms and conditions of employment " The Respondent maintains that the proposed hiring provisions are not within the reach of Section 8(d), and that its refusal to bargain regarding them was lawful; and it arrives at that result by invoking Section 14(b) of the National Labor Relations Act, and provisions of Nevada statute law, described in the record (and below) as the "Right to Work Act" (NRS 613.230-613.300). Section 14(b) of the National Labor Relations Act provides: "Nothing in this Act shall be construed as authorizing the execution or application of agreements requiring membership in a labor organiza- 'The Union' s statement in its wire that because of an opinion of a Nevada District Court judge, and the pendency of this proceeding, it was withdrawing its hiring proposal does not operate as an abandonment of the proposal, nor relieve the Company of any bargaining obligation it may have in the premises. This is also true of the proposal the Union made on or about December 17. It is clear from the terms of the telegram and of the subsequent offer that the Union was not abandoning its request for the hiring pro- cedures, but, in effect, merely deferring bargaining in the premises pending a deteimina- tion of the legality of the provisions in question by a competent tribunal The very fact that it is seeking such a decision here of itself negates a conclusion that it has waived or abandoned any right it may have to require the Company to bargain regarding the pro- posal. Moreover, as previously noted, the parties have stipulated that the Union "in- sisted upon" the hiring provisions during the negotiations and "at all times" thereafter. 8 The $4 rate is higher even if one treats the paid vacation offer as wages, for payment of a week's wages, computed at an hourly rate of $3 75 for a 40-hour week, would add an average of between 7 and 8 cents an hour for 52 weeks of 40 hours each. TOM JOYCE FLOORS, INC. 903 tion as a condition of employment in any State or Territory in which such execution or application is prohibited by State or Territorial law." Such a prohibition is embodied in Nevada's Right to Work Act, which forbids a denial of any employment opportunity because of nonmembership in a labor organization (NRS 613.250), and any agreement which excludes any person from employment because of such non- membership (NRS 213.260).° Reading Section 14 (b) of the National Labor Relations Act and Nevada's Right to Work Act together, the Respondent makes the argument, in effect, that contractual hiring procedures such as those involved here have been construed by Nevada courts as conditioning employment on union membership , and as therefore contrary to the State's Right to Work Act; and that thus, as Nevada law is expressly sanctioned by Section 14(b) of the Federal statute, the proposed hiring provisions are not a proper subject of bargaining in Nevada , and its relevant law is binding upon the Board. In my judgment, there is a basic error in this thesis, and that is that it assumes that Section 14(b) has the effect of authorizing Nevada to remove the relevant hiring procedures from the area of bargaining . But before embarking on an exploration of the reach of Section 14(b), I think it appropriate to look into the Respondent's interpretation of the Right to Work Act , although, for reasons that will appear, the Company's obligation to bargain with respect to the hiring proposal is in no way governed by Nevada law. To begin with, I find nothing in the language of the Right to Work Act that con- demns hiring provisions such as those involved here. The proposed terms not only do not condition employment upon union membership, but expressly forbid such a condition. Certainly, they are not unlawful under Section 8(a)(3) of the National Labor Relations Act, which, except under permissible union-security arrangements, forbids discrimination based on union membership. As the U.S. Supreme Court has pointed out, in holding that contractual hiring provisions not materially different from those under consideration here did not per se violate Section 8(a) (3), ". . . dis- crimination cannot be inferred from the face of the instrument when the instrument specifically provides that there will be no discrimination ... because of the presence or absence of union membership " (Local 357, International Brotherhood of Team- sters etc. (Los Angeles-Seattle Motor Express) v. N.L.R.B., 365 U.S. 667, 675). But the Respondent nevertheless sees decisive warrant for its view of Nevada law in judicial construction of the Right to Work Act, relying upon references in the 9 The following, omitting definitional provisions ( NRS 613 230 , 613.240) of no moment here, is the text of Nevada's Right To Work Act: 613 250 No person shall be denied the opportunity to obtain or retain employ- ment because of non-membership in a labor organization , nor shall the state, or any subdivision thereof or any corporation , individual or association of any kind enter into any agreement, written or oral, which excludes any person from employment or continuation of employment because of non-membership in a labor organization 613 260 Any act or any provision in any agreement which is in violation of NRS 613.230 to 613.300, inclusive , shall be illegal and void. Any strike or picketing to force or induce any employer to make an agreement in writing or orally in violation of NRS 613 .230 to 613 300, inclusive , shall be for an illegal purpose. 613 270 It shall be unlawful for any employee , labor organization, or officer, agent or member thereof to compel or attempt to compel any person to join any labor organi- zation or to strike against his will or to leave his employment by any threatened or actual interference with his person , immediate family or property. 613 280 Any combination or conspiracy by two or more persons to cause the dis- charge of any person or to cause him to be denied employment because he is not a member of a labor organization , by inducing or attempting to induce any other per- son to refuse to work with such person , shall be illegal. 613.290 Any person who violates any provision of NRS 613 230 to 613 300, in- clusive, or who enters into any agreement containing a provision declared illegal by NRS 613 230 to 613 300 , inclusive, or who shall bring about the discharge or the denial or employment of any person because of non-membership in a labor organiza- tion shall be liable to the person injured as a result of such act or provision and may be sued therefor, and in any such action ( 4) any labor organization , subdivision or local thereof shall be held to be bound by the acts of its duly authorized agents act- ing within the scope of their authority and may sue or be sued in its common name. 613 300 Any person injured or threatened with injury by an act declared illegal by NRS 613 230 to 613 300, inclusive , shall, notwithstanding any other provision of the law to the contrary, be entitled to injunctive relief therefrom. 904 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD record to an opinion of a judge of the Nevada District Court, and upon a decision of the Nevada Supreme Court in Building Trades Council v. Bonito, 71 Nev. 84, 280 P. 2d 295. With respect to the opinion attributed to the district court judge, the record here is notable for what it omits rather than for what it contains . The record in the district court proceeding, including the opinion upon which the Respondent places much stress, is not in evidence, and one is left utterly in the dark as to the contents of the pleadings, and thus of the material issues they raise. Indeed, even the name of the proceeding does not appear. The sum of the record concerning the opinion consists of hearsay references to it in the telegrams, and in testimony by the Union's counsel describing something he said to a representative of the General Counsel on the subject of the opinion. As every lawyer knows, decisional results may be affected by a large range of variables, including the material issues raised by the pleadings and factual nuances. Thus, in the posture of the record, to make definitive findings as to the reach and content of the opinion, not to speak of the legality of the hiring provisions on the basis of the opinion, would be a risky business, and I must decline to embark: on it. In short, the Respondent's claim regarding the effect of the opinion, as a st«teinent of Nevada law, upon the legality of the hiring provisions is not established by sub- stantial evidence.10 Nor does the Bonito decision have the effect the Respondent would give it. The case involved a demand by a union that as a condition of removal of an employer from an "unfair" list maintained by a group of labor organizations, he sign an agree- ment providing, in substance, that in the event he required "craftsmen" subject to the contract, he "first apply" to the union to supply them. The Nevada Supreme Court held that the requested contract provisions violated Nevada's Right to Work Act, reading them to mean that "the employer in practical effect, agrees that so long as the union is able to supply craftsmen, he shall employ only union labor " However, the facts in Bonito differ from those under consideration here in at least two noteworthy respects. One is that the instrument before the Nevada Supreme Court did not include a contractual guarantee against discrimination on the basis of union membership. In contrast, article III expressly provides that "Union member- ship shall not be a condition of employment," and that the selection of workmen for job referrals "shall not be based on, or in any way affected by, Union membership . or any other aspect or obligation of Union membership, policies or requirements." The other distinction is that in Bonito, the union in question appears to have treated the hiring provisions it sought as conditioning employment on union membership. The trial court expressly found, as the Nevada Supreme Court noted, that the union, through its business agent, demanded that the employer "sign an agreement to hire union help" as the condition of his removal from the "unfair" list, and concluded from that that the demand sought an objective that was unlawful under the Right to Work Act. Again in contrast, there is no evidence in the instant case that the Union treats, or intends to use, its proposed hiring provisions as a vehicle for dispatching workmen to job vacancies on the basis of union membership. Bearing the distinction in mind, I see no warrant for a belief that the Nevada Supreme Court would reach a different result, under the Right to Work Act, regarding the hiring provisions of article III than that of the U.S. Supreme Court in sustaining the legality of comparable contract terms, under Section 8(a)(3), in Local 357 case (which, incidentally, was decided after Bonito). In sum, I do not read Bonito as a statement of Nevada law having the effect of invalidating the proposed hiring provi- sions, nor do I agree, for the reasons previously noted, that the terms in question are illegal under the law of Nevada. In any event, the Respondent's obligation to bargain regarding the hiring provi- sions is not to be measured by Nevada's Right to Work Act or any construction of that Act by the Nevada courts. This does no violence to the doctrine that Federal tribunals "are bound to follow interpretations of state statutes by the state courts of the state in which the statute was enacted," 11 for, as regards rights and obligations established by the National Labor Relations Act, Nevada law cannot exceed the permissible range of Section 14(b), and, obviously, what is involved in the Respond- ent's argument is not only a construction of State law, but, necessarily, of Section 14(b). 10 Thus it is unnecessary to explore the jurisdiction of the Nevada District Court with a view to determining whether its interpretation of Nevada law should be given binding effect in other jurisdictions. 11 Sutherland, "Statutes and Statutory Construction," § 4604 (3d ed. 1943). TOM JOYCE FLOORS, INC. 905 That section has the limited function of permitting States to prohibit "the execu- tion or application of agreements requiring membership in a labor organization as a condition of employment"; and it is clear from the legislative history of the section that the underlying congressional aim in its enactment was to authorize States to prohibit union-security arrangements which would otherwise be permissible under the proviso of Section 8(a)(3) of the Act, which provides, in part: "That nothing in this Act . . . shall preclude an employer from making an agreement with a labor organization ... to require as a condition of employment membership therein on or after the thirtieth day following the beginning of such employment or the effective date of such agreement, whichever is the later...." 12 The nub of the matter is that the proposed hiring provisions do not require "mem- bership in a labor organization as a condition of employment"; do not depend for their legality upon the proviso to Section 8 (a) (3 ), but are lawful because not for- bidden by any provision of the Act, as the Supreme Court's decision in the Local 357 case makes clear; and are not within the purview of Section 14(b).13 Put another way, neither Nevada's Right to Work Act nor any State court decision construing it has any material bearing on the Respondent's bargaining obligation, which is defined solely by Section 8(d) of the National Labor Relations Act. This is an area ex- clusively within the decisional competency of the Board and the Federal courts author- ized to review or enforce its orders.14 Applying Section 8(d), I have no doubt that the proposed hiring procedures are "terms and conditions of employment" within the reach of the statutory bargaining obligation. For one thing, the provisions prescribe the very "terms and conditions" for the creation of the employment relation. For another matter, although the pro- visions, in essence, deal with the machinery for hiring workmen, they also prescribe "terms and conditions" for those already in the Company's employ, for the procedures in question obligate the Union to "use its best efforts to furnish the required number of qualified and competent workmen," and it seems plain that employees in the bargaining unit have a substantial stake in the qualifications and competency of those hired to work with them. Obviously, an incompetent worker may make the work of his fellows on a project more burdensome than a competent one. Moreover, as previously noted, article III contains a provision giving hiring preference to "workmen ... who have been employed on the type of work and in the territory covered by this. agreement for a period of at least one year," and this could, in the prescribed circum- stances, operate to give one currently employed by the Company hiring preferment by it should he be unemployed at a later date. In other words, the establishment of such a preference creates a present "term or condition of employment" for those now in the bargaining unit, even though the use of the preference may be deferred to a time when they are no longer in the Company's employ. The sum of the matter is that the provisions of article III of the proposed contract submitted by the Union to the Company at the meeting of October 17, 1962, are a mandatory subject of bargaining within the purview of Section 8(d) of the Act; and that by refusing to bargain concerning the subject, as found above, the Respondent has violated Section 8(a)(5) of the Act, and has interfered with, restrained, and coerced employees in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating Section 8(a) (1) of the statute. 12 In their report to the House of Representatives on what became the Taft-Hartley amendments to the Act, the House members of the conference committee, which approved the amendments, including Section 14(b), stated that the provisions of that section were derived from H.R 3020, 80th Cong., 1st sess., and had been included in that bill "(t)o make certain" that neither "the so-called `closed shop' proviso in Section 8(3) of the existing (Wagner) Act nor the union shop and maintenance of membership proviso in Section 8(a)(3) of the conference agreement could be said to authorize arrangements of this sort in States where such arrangements were contrary to the State policy" H R. Conf. Rept. No. 510, p. 60, 1 Leg. Hist. L.M.R.A. 564. Cf. Retail Clerks, Local 1625 v. Schermerhorn, 373 U S. 746, 53 LRRM 2318, 2319-2320, where the U.S Supreme Court, noting that the "connection between the [Section] 8(a) (3) proviso and [Section] 14(b) Is clear," stated that it was not necessary to decide in the cited case whether the two sections "are perfectly coincident." "Cf. International Longshoremen's and Warehousemen's Union, Local No. 10 (Paolfic Maritime Association), 121 NLRB 938. 14 Joseph Garner et al. t/a Central Storage and Transfer Company v Teamsters, Chauf- feurs and Helpers Local Union No. 776, 346 U.S. 485; San Diego Building Trades Council v. Garmon, 359 U.S. 236. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turning to the question of the legality of the $4 wage scale paid replacements for strikers, resolution of the issue does not hinge upon a determination whether the Union and the Company had reached an impasse in their wage negotiations. The controlling facts are that the $4 scale was substantially in excess of the rate initially offered for the 3-month period preceding January 1, 1963, and of the scale all but one of the pre-strike employees would have received under the second offer; and that the Union, although it was the certified bargaining representative of all the employees in the unit, was not consulted about the payment to replacements of a wage scale thus in excess of the two offers the Company made during the negotiations. By making such a unilateral change in conditions of employment, the Respondent failed to meet its bargaining duty as much as though it had iefused to bargain concerning the change; thus violated Section 8 (a) (5) of the Act; and abridged Section 7 rights of its employees, thereby violating Section 8 (a) (1) of the statute.15 The remaining issue is whether the strike, which began because of economic differ- ences between the Union and the Company, was converted into an unfair labor practice strike by the Company's unlawful conduct. If such a conversion took place, the date of the change is of some significance because of the bearing it may have on the right of strikers to return to jobs filled by replacements after the date 16 There is some disparity between the complaint, which alleges that the conversion took place on October 23, 1962, and a position by the General Counsel to the effect that it occurred on October 5, 1962, when the first ieplacement was hired at a $4 hourly rate. In any event, this was the only replacement hired at that rate prior to the meeting of October 24, when the first express bargaining refusal occurred, and I do not find in the employment of the replacement any warrant for a conclusion that the strike was converted into one against unfair labor practices prior to Octo- ber 24. However,' I reach a different result with regard to the nature of the strike as a result of the bargaining refusal on that date, and of the unfair labor practices that followed. In evaluating the probable impact of the unfair labor practices, one should not lose sight of the fact that the Company's wage offer at the October 23 meeting was actually a reduction of the proposal it made on September 10. The reduced offer is in marked contrast to the fact that 2 days after it was made, the Company hired .its second replacement at the higher scale of $4, and during the next 5 weeks hired six more replacements at that rate. By the time of the Company's rejection of the Union's mid-December offer to settle the strike on a basis that included the reinstate- ment of the strikers and the "release [of] any other employees [meaning, obviously, replacements] not needed," all but two of the eight employees then on the Company's 15 N.L R B. v. Benne Katz, d/b/a Williamsburg Steel Products Co, 369 U.S. 736; N.L R.B. v. Crompton-Highland Mills, Inc, 337 U.S. 217; N L R B. v. Reed A Prince Manu- facturing Company, 118 F. 2d 874, 885 (C.A. 1), cert denied 313 U S 595; Aztec Ceramics Company, 138 NLRB 1178; Mitchell Concrete Products Co., 137 NLRB 504; of. N.L R.B v. Erie Resistor Corporation, 373 U.S. 221, in which the Supreme Court recently held that a preferential grant of seniority (so-called superseniority) to replacements for strikers was an unfair labor practice. I note that Pacific Gamble Robinson Company v. N L R B , 186 F. 2d 106 (CA. 6), reached a contrary result on comparable facts. The court held, in substance, that since an employer was free, under the doctrine of N L R B. v Mackay Radio d Telegraph Co, 304 U.S. 333, to replace economic strikers, he was under no duty to negotiate with the representative of the unit regarding the terms of hire of the replace- ments. With all deference to the court, I am not in accord with the conclusion and thus do not follow it, noting, also, that the Supreme Court in Erie Resistor declined to read the Mackay case as validating a preferential grant of seniority to replacements for strikers. In any case, whether or not the Erie Resistor case is applicable here, the unilateral change was unlawful for the reasons , and under other cases such as Crompton-Highlands and Katz, mentioned above. 19 In its brief, the Union states that it is "arguable" that the strike was one against un- fair labor practices from its inception. This view is based on a stipulation at the hear- ing, which includes a statement to the effect that "at all times during the bargaining negotiations," the Respondent refused to bargain regarding the hiring provisions. It may be that this generalization was inadvertent, since it is evident from Crumley's testimony that the Company first refused to bargain regarding the hiring proposal at the meeting of October 24. In any case, Crumley's testimony establishes, and I find, that the relevant bargaining refusal first occurred at that meeting. Obviously, then, the dispute over the hiring provisions could not have been a cause of the strike. TOM JOYCE FLOORS, INC. 907 payroll were receiving $4 an hour.17 The payment of that rate without consultation with the Union was not only an unfair labor practice, for reasons previously set forth, but particularly against the background of the Company's reduced offer of Octo- ber 23, would have a natural tendency to disparage and undermine the Union's representative status, and impede bargaining and a settlement of the strike. Com- monsense tells us that the Union could not negotiate a settlement of the strike on the basis of retention of the replacements, at the $4 rate at least, without risking severe impairment of its image in the eyes of the striking employees. And it is but reason- able to conclude that the Respondent was aware that the employment of the replace- ments at a rate higher than both of the prior offers would very likely be an obstacle to bargaining and prolong the strike. Moreover, the record reflects a disposition by the Company not to reach any accommodation with the Union regarding the hiring provisions, even in so relatively mild an area as deferral of negotiations regarding them until a later date, and this attitude, in my judgment, added an impediment to bargaining, with a consequent prolongation of the strike. Fairly read, the Union's telegram of November 27 was, in substance, a proposal that the hiring provisions be put aside for future negotiation in the event that the Board upheld its position, upon a charge then pending, that the hiring proposal was a lawful bargaining subject; and that the parties meanwhile negotiate an agreement as to the other matters in dispute. The Company's reply is not quite responsive, notwithstanding its professed willingness to bargain, for its telegram is silent on the subject of future negotiations regarding the hiring proposal in the circumstances mentioned in the Union's wire. As regards the proposal, the Company's reply (which appears to me to be couched in meticulously phrased self- serving terms) does no more than to state flatly that the "opinion [of the Nevada District Court judge] that the hiring hall clause is unlawful in Nevada does not permit us to take any position other than that said clause is beyond the area of bar- gaining." It does not appear why the opinion did not "permit" the Company to join with the Union in a position, plainly implicit in the Union's wire, that bargaining regarding the hiring proposal be deferred until a decision in the premises by a tribunal of competent jurisdiction, and that the parties bargain with respect to the proposal in the event its legality be sustained. Be that as it may, the omission appears to me to be symptomatic of a developing disposition by the Respondent following the October 23 meeting to avoid bargaining rather than to engage in it Having agreed to article III, as slightly amended, at the meeting of October 23, it reversed course on the matter the following day. Presented in the Union's wire of November 27 with what was in effect, albeit not in precise terms, a plainly reasonable proposal to bargain regarding the hiring provisions at a later time upon their validation in a proceeding already begun by the filing of the charge, the Respondent chose to ignore the suggestion clearly implicit in the Union's wire. On the one hand reducing a wage offer it had previously made, the Company proceeded, on the other, to pay most of the replacements at a scale higher than rates it had previously offered the Union, thus disparaging the Union's representative status and putting it in a position where it would have to continue the strike in an effort to save its face from damage by the Respondent's unfair labor practices.18 In the climate of the Respondent's course of conduct described above, it is little wonder that the strike is still in progress. I find, in sum, that by its unfair labor practices, the Respondent has prolonged the strike, and that it has been one against unfair labor practices, as well as for economic reasons, since the refusal to bargain regarding the hiring provisions on October 24, 1962. As a consequence, the employees who had not been permanently replaced prior to the bargaining refusal on that date are entitled to reinstatement to their previous, or substantially equivalent, positions, upon their unconditional request, and suitable provision for such reinstatement will therefore be made in the remedy to be recommended below. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with the operations of the Company described in section I, above, have a 17 The two exceptions were employed at a $3 50 rate, both having been hired within about a week before the Union's proposal. The record does not establish why they received a lower rate than the other six. is The Respondent's answer contains a claim that $4 rate was "necessary," but there is no evidence to support it. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD close, intimate, and substantial relation to trade , traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8 (a) (5) and (1) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As it has been found that the Respondent prolonged the strike, and that it became one against unfair labor practices , as well as for economic reasons, on October 24, 1962, I shall recommend that upon unconditional request by or on behalf of any employee who went on strike on October 2, 1962, and was not permanently replaced before October 24, 1962, the Respondent immediately reinstate such employee to his former, or a substantially equivalent , position , without prejudice to his seniority and other rights and privileges , discharging, if necessary to effect such reinstatement, any employee hired since October 24, 1962; that in the event of a failure or refusal by the Respondent to reinstate any striker entitled to reinstatement , as provided herein, the said Respondent make such striker whole for any loss of pay he may suffer by reason of such failure or refusal , together with interest at a rate of 6 percent per year; and that such loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 29 NLRB 289, and Isis Plumbing & Heating Co,., 138 NLRB 716, to which the parties are expressly referred. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Tom Joyce Floors, Inc., is, and has been at all times material , an employer within the meaning of Section 2(2) of the Act. 2. Local No. 567, Brotherhood of Painters , Decorators and Paperhangers of America, AFL-CIO, is, and has been at all times material, a labor organization within the meaning of Section 2(5) of the Act. 3. All employees of the Respondent in its Reno, Nevada, operation, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act, constitute, and have at all material times constituted , a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9(b) of the Act. 4. The said Union was, on August 28, 1962, has been at all material times since, and is now, the exclusive representative of all the employees in the aforesaid appro- priate unit for purposes of collective bargaining, within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain collectively with the Union, as the exclusive representative of the employees in the aforesaid appropriate unit, as found above, the said Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) of the Act. 6. By interfering with, restraining, and coercing employees in the exercise of rights guaranteed them by Section 7 of the Act, as found above, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)( I) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding , I recommend that Tom Joyce Floors , Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning wages and other terms and condi- tions of employment, including the provisions of article III of the proposed contract submitted to it on October 17, 1962, with Local No. 567, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, as the exclusive representative of employees in a bargaining unit consisting of all employees of the Company in its Reno, Nevada, operation , excluding office clerical employees, salesmen , guards, and supervisors as defined in the National Labor Relations Act, as amended. TOM JOYCE FLOORS, INC. 909 (b) In any like or related manner interfering with, restraining, or coercing em- ployees in the exercise of rights guaranteed them by Section 7 of the said Act. 2. Take the following affirmative action which, it is found, will effectuate the policies of the said Act: (a) Upon request, bargain collectively with Local No. 567, Brotherhood of Paint- ers, Decorators and Paperhangers of America, AFL-CIO, as the exclusive represen- tative of the employees in the appropriate bargaining unit, described above, with respect to their rates of pay, wages, hours of employment, and other conditions of employment, including the provisions of article III of the said proposed contract, and, if an agreement is reached , embody it in a signed contract. (b) Upon request by, or on behalf of, any employee who went on strike on Octo- ber 2, 1962, and was not permanently replaced before October 24, 1962, immediately reinstate such employee to his former, or a substantially equivalent, position, without prejudice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement, any employee hired since October 24, 1962, and in the event of a failure or refusal to reinstate any striker entitled to reinstatement as pro- vided herein, make such striker whole to the extent of, and in accordance with, the manner and method prescribed in section V, above, entitled "The Remedy." (c) Preserve until compliance with any order for reinstatement or backpay made by the National Labor Relations Board in this proceeding is effectuated, and make available to the said Board and its agents, upon request, for examining and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records relevant to a determination of backpay and reinstate- ment rights provided under the terms of such order. ' (d) Post in conspicuous places at its place of business in Reno, Nevada, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for Region 20 of the National Labor Relations Board, shall, after being signed by a duly authorized representative of the Company, be posted by it immedi- ately upon receipt thereof, and maintained by it for 60 consecutive days thereafter in such conspicuous places. Reasonable steps shall be taken by the said Company to insure that said notices are not altered, defaced, or covered by any other material.19 (e) Notify the said Regional Director, in writing, within 20 days from the receipt of a copy of this Intermediate Report and Recommended Order, what steps the said Company has taken to comply therewith.20 It is further recommended that, unless on or before 20 days from the date of its receipt of a copy of this Intermediate Report and Recommended Order the Respond- ent notify the said Regional Director that it will comply with the foregoing recom- mendations, the National Labor Relations Board issue an order requiring the Re- spondent to take the action aforesaid. 19 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted, for the words "the Recommended Order of a Trial Examiner " in the notice. In the additional event that the Board's Order is enforced by a decree of a United State Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event that this Recommended Order is adopted by the Board, paragraph 2(e) thereof shall be modified to read: "Notify the said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken' to comply therewith." APPENDIX A 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, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with Local No. 567, Brotherhood of Painters, Decorators and Paperhangers of America, AFL-CIO, as the ex- clusive representative of a bargaining unit consisting of all of our employees in our Reno, Nevada, operation, excluding office clerical employees, salesmen, guards, and supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment, including provisions for hiring workmen as set forth in a contract proposal made by the Union on October 17, 1962, and if an agreement is reached, embody it in°a signed contract. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT by refusing to bargain collectively, as required above, or by granting wages increases without bargaining with the duly designated representa- tive of the employees in the unit described above, or in any other like or related manner, interfere with, restrain, or coerce employees in the exercise of the rights guaranteed them by Section 7 of the said Act. WE WILL, upon request by, or on behalf of, any employee who went on strike on October 2, 1962, and was not permanently replaced before October 24, 1962, immediately reinstate such employee to his former, or a substantially equivalent, position, without prejudice to his seniority and other rights and privileges, dis- charging , if necessary to effect such reinstatement , any employee hired since October 24, 1962, and in the event of a failure or refusal to reinstate any striker entitled to reinstatement as provided herein we will reimburse such striker for any loss of pay he may suffer by reason of such failure or refusal. TOM JOYCE FLOORS, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date of posting , and must not be altered , defaced, or covered by any other material. Information regarding provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 830 Market Street, San Francisco, California, Telephone No. Yukon 6-3500, Extension 3191. Kenrich Petrochemicals , Inc. and Eugene Geiss Local 350, Bakery and Confectionery Workers International Union of America and Eugene Geiss. Cases Nos. 22-CA-1852 and 22-CB-711. November 20, 1964 DECISION AND ORDER On July 9, 1964, Trial Examiner Sidney Sherman issued his Deci- sion in the above-entitled proceeding, finding that the Respondents: had engaged in and were engaging in certain unfair labor practices within the meaning of the Act, and recommending that they cease and: desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent Company filed exceptions to the Trial Examiner's Decision and a. supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Leedom, Fanning, and Jenkins]. 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 Trial Examiner's Decision, the exceptions and brief,' and the entire record I The Respondent Company has requested oral argument . This request is hereby denied, because the record, the exceptions, and brief adequately present the issues and the posi- tion of the parties. 149 NLRB No. 89.