Stevenson Brick and Block Co.

198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stevenson Brick and Block Company, General Wholesale Build- ing Supply Company, New Bern Building Supply Company and Ready-Mix Concrete Corp . and Retail, Wholesale and Depart- ment Store Union , AFL-CIO. Cases 11-0,A-2599 and 2717. July 25, 1966 DECISION AND ORDER On March 23, 1966, Trial Examiner Robert E. Mullin issued his, Decision in the above-entitled proceeding, finding that the Respond- ent 1 had engaged in and was engaging in certain unfair labor prac- tices violative of Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as recommended in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with 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 Trial Examiner's Decision, the Respondent's exceptions, and the entire rec- ord iii this case, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner.2 [The Board adopted the Trial Examiner's Recommended Order.] 1 Stevenson Brick and Block Company, General Wholesale Building Supply Companv, New Bern Building Supply Company and Ready-Mix Concrete Corp, are referred to collectively herein as Respondent 2 on page 212, in the last line of the second paragraph, the Trial Examiner, an doubt through inadvertance, refers to Respondent's refusal to reinstate certain striking employees as a violation of "Section 8(a) (3) and (5) " This reference is, accordingly, corrected to read "Section 8(a) (3) and (1)."' TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Upon charges filed by the Retail , Wholesale and Department Store Union, AFL- CIO (herein called Union) against Stevenson Brick and Block Company, General Wholesale Building Supply Company, New Bern Building Supply Company, and Ready-Mix Concrete Corp. (herein collectively called Respondent, or Employer), the General Counsel of the National Labor Relations Board, by the Regional Direc- tor for Region 11 (Winston-Salem, North Carolina), on July 21, 1965, issued a notice of hearing and an order consolidating the above-numbered cases for hearing.' 1 Prior to July 21, 1965, when the Regional Director issued an order consolidating the cases numbered in the above caption, he had issued a complaint on January 29, 1965 in Case 11-CA-2599, and a complaint on July 21 in Case 11-CA-2717 The charges on which these complaints were based were filed on the following dates The original charge in case 11-CA-2599, was filed on December 9, 1964, and an amended charge on January 27, 1965. The original charge in Case 11-CA-2717 was filed on May 4, 1965, and an amended charge on July 13, 1965 160 NLRB No. 21. STEVENSON BRICK AND BLOCK CO. 199 The Respondent duly filed answers to each complaint in which it conceded certain facts with respect to its business operations, but denied all alleged unfair labor prac- tices with which it is charged. Pursuant to due notice, a hearing was held before Trial Examiner Robert E. Mullin at New Bern, North Carolina, on September 28, 29, and 30, 1965. All par- ties appeared at the hearing and were given full opportunities to examine and cross- examine witnesses, to introduce relevant evidence, to argue orally at the close of the hearing and to file briefs. The parties waived oral argument. On November 8, 1965, the General Counsel submitted a brief on the issues. No brief was received from the Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Stevenson Brick and Block Company, General Wholesale Building Supply Com- pany, New Bern Building Supply Company and Ready-Mix Concrete Corp., are North Carolina corporations with their principal offices and places of business in and around New Bern, North Carolina. They are engaged in the manufacture and sale of brick, concrete, and general building supplies. It is conceded that at all times material herein, all four of these corporate entities have been engaged in a single, integrated enterprise. For this reason, hereinafter in this Decision, except where otherwise specifically noted, they will be referred to collectively as the Respondent (or, individually, as Stevenson Brick, General Wholesale, Building Supply, and Ready-Mix). During the 12 months prior to the hearing, a representative period, the Respondent purchased and caused -to be shipped to its common site in the city of New Bern, North Carolina, from outside that State, goods and materials valued in excess of $50,000 On these facts, which are not-in issue, I conclude and find that the Respondent is engaged in commerce within the meaning of the Act. IT THE LABOR ORGANIZATION INVOLVED The Respondent concedes, and I find, that the Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Introduction and sequence of events The Respondent concedes, and I find, that all production and maintenance employ- ees and truckdrivers employed by the Respondent at New Bern, Havelock, and Beau- fort, ' North Carolina, excluding office clerical employees, professional employees, outside salesmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. . On November 20, 1964, in a secret-ballot election conducted under the supervi- sion of the Regional Director for Region 11, a majority of the employees in the above-described unit, designated and selected the Union as their representative for the purpose of collective bargaining with the Respondent.2 On December 1, 1964, the Regional Director certified the Union as the exclusive bargaining agent for the employees in the foregoing unit. A short while later, the Union requested a bargain- ing conference and the parties met for the first time on January 19, 1965 Many other meetings were held in the following months, the last being on June 25, 1965. These will be discussed hereinafter. On May 3, 1965, the employees of the Respondent went on strike. On May 13, 1965, the Union notified the Employer that its striking employees were willing to return to work unconditionally. Thereafter, when many of the strikers sought reem- ployment, the Respondent informed them that they had been replaced and that no work was available. 2It is undisputed, and I find, that by virtue of Section 9(a) of the Act, the Union has been the exclusive bargaining agent for the employees in the above-described unit at all times since November 20, 1964 200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. The period prior to the ba,gaining conferences 1. The facts During the period that the Union was engaged in its organizational campaign among the Respondent's employees a- number of incidents occurred which are alleged by the General Counsel to have involved violations of the Act by the Respondent's managerial personnel. James A. Yates, an employee, testified that during the latter part of September 1964, B. G. Hines, president of the Respondent, questioned him as to whether he knew about the union movement. When Yates denied any knowledge of the matter, Hines told him that obviously some of the employees had become involved because he had received a letter from the Union claiming that a majority of the employees had joined. When Yates again denied having any information on the subject, Hines told him that he wanted to find out who started the organizational campaign and would give $20 to find out. Hines then asked that Yates get the answer for him and let him know. James Hankins testified that about a week before the election on November 20, Howard Lamb, manager of Ready-Mix, questioned him about the union campaign and told him that he "wouldn't have the privileges [he'd] been having if the Union took effect." William E. Murphy, a truckdriver, testified that shortly before the election, George Cook, a foreman with General Wholesale, questioned him as to his views about the Union. When Murphy remained noncommittal on the subject, Cook told him that the Union could not help the employees and that he had learned through what he described as "the grapevine" that if the Union won the forthcoming election "Mr. Hines would park the trucks in a vacant lot and . . . you know what that would do to the truck drivers." James Conaway, a warehouse employee, testified that on or about November 17, O. C. Toler, the manager of General Wholesale, called him into his office and stated that Foreman Cook had told him that Conaway was not in the Union. Toler ques- tioned Conaway as to whether that was true and the latter declared that it was. Then Toler asked that Conaway speak to Frederick English, another employee, about what Toler described as "the mess he [English] got the boys in." Later that day, Toler queried Conaway as to whether he had spoken to English. Conaway acknowl- edged having done so but told him that English said that he "was too far out in it now to back up." Toler thereupon declared that "Somebody better know how to back up . . . there wasn't nothing the union could do for the boy; . Mr. Hines was twenty years building up that business, and the union or nobody else was going to tell him how to run it." Conaway further testified that on the day of the election, Foreman Cook came up to him and Everett Bryan, another employee, to talk about the Union and to tell them that when they cast their ballots they should "vote it out." Employee James A. Yates testified that prior to the election it was not uncom- mon for him to borrow money from the Company or get an advance on his wages but that after the election this was no longer possible. According to Yates, about a week after the election he approached Manager Lewis to request a $30 loan. Lewis answered "No ... you'll have to go to your union man and get you a loan .... Now see what your Union man done? . . . you used to borrow money; now you can't." Earlier, two other employees who identified themselves with the union campaign felt the effects of this same type of retaliation as that which Lewis applies to Yates. A representation hearing on the union petition for an election was held on Octo- ber 22 Among those who appeared for the Union at this hearing were employees James R. Squires and Dalton Cooper. In addition to its attorneys, the Respondent was represented at the hearing by President Hines, and Managers Toler and Lewis. Both Squires and Cooper owed the Respondent varying amounts for merchandise which they had purchased on credit during the course of their employment. Squires' bill exceeded $300 and had been owing the Respondent for some 2 to 3 years at the time of the representation hearing. The morning after the hearing both Squires and Cooper were summoned to Toler's office, shown statements of their accounts and asked by Toler as to when they proposed to pay them. According to Squires, Toler stated to them that President Hines had directed that $25 a week be taken out of their pay until their accounts were settled. Later that day, Toler again summoned them to his office and told them that Hines had written a letter stating that although nothing would be taken out of their wages at that time they would have to start STEVENSON BRICK AND BLOCK CO. 201 making voluntary payments on their accounts immediately . Squires testified that he accepted this demand and thereafter began making voluntary payments . After he had made three such payments , however, the Respondent wrote him a note stating that thereafter $5 a week would be deducted from his pay until his obligation had been satisfied This, in fact, was done for as long thereafter as Squires remained on the Respondent's payroll. In a lengthy letter to all employees which was dated November 12, 1964, and signed by President B. G. Hines, the Respondent appealed to the employees to vote against the Union in the forthcoming election In cataloging the advantages of their current employment , the president 's letter stated that at that time "you have no cur- tailments or short workweeks or short pay checks. Instead , you have plenty of over- time work at time and a half pay." Immediately after the results of the election became known the Respondent announced a cut in the working hours and curtail- ment of the workweek for employees in the bargaining unit. The election was held on Friday, November 20, and the fact that the Union had won was announced that afternoon . James Conaway , Frederick T. English, John Becton, and Dalton, Cooper were warehouse employees for General Wholesale. Prior to the election they had regularly worked for approximately 41/2 hours every Satur- day morning, helping load materials in customers' cars and trucks and performing other duties assigned to them as warehouse helpers. All four of these employees tes- tified that at closing time on the day of the election Manager Toler handed them their paychecks and told them not to report for any Saturday work until further notice. General Wholesale , however, did not thereafter close down on Saturday mornings . Instead, as English and Becton testified, without contradiction, the work which they, as warehouse helpers, had formerly performed was accomplished there- after by office personnel and salesmen who were not in the bargaining unit. None of the warehouse helpers was ever recalled for Saturday work after the election. For a long period prior to the election, Frank S. Murphy, a truckdriver for Steven- son Brick, had been working a 44-hour week, reporting for work at 7.30 a.m. and taking a half hour for lunch . On the afternoon of the election, Lester Cuthrell, superintendent for Stevenson Brick and Murphy's superior , came to him where he was at work and stated "Frank, you'll report to work Monday morning at 8 o'clock, take an hour for lunch , and knock off at 5 o'clock , a straight forty hour week; .. . that damned union is what caused this . A short time later the Respondent posted a notice for all truckdrivers and ware- housemen of General Wholesale , Stevenson Brick, and New Bern Building Supply to the effect that beginning on Friday , December 4, they would report for work at 8 o'clock. Until this change in the work schedule went into effect the employees reported for duty at 7:30 a.m. and worked until 5:30 p.m. James Conaway testified, and his testimony was uncontradicted and undenied , that subsequent to the posting of this notice the employees not only reported for work 30 minutes later than usual, they also quit for the day at 5 p.m. rather than 5:30. 2. Conclusions with respect to the alleged violations of the Act prior to the bargaining conferences R. W. Parker, organizer for the Union and its representative throughout all its contact with the Respondent , testified that at no time did the Respondent ever notify or consult the Union in connection with any of the above-found changes in the work schedules , elimination of Saturday work, or the cutback in the hours worked per day by employees in the bargaining unit. His testimony in this regard was never denied or contradicted by the Respondent . The Employer's obligation to notify the duly constituted bargaining agent of any proposed changes in hours or working con- ditions is well settled . Whether the Union would have agreed to such changes as a matter of course or disputed them it was at least entitled to the opportunity to con- sider them and, if it desired , bargain with the Respondent as to such proposals. In its preelection letter to the employees the Respondent had pointedly referred to the fact that without a union they had had "no curtailments or short work weeks." The very day that the Union won the election , the Respondent eliminated Saturday work for the warehouse employees , and Superintendent Cuthrell told Murphy , a truck- driver, that the following Monday his workweek would be shortened and that the "damned union is what caused this ... ... In view of these facts , and in these cir- cumstances, I conclude and find that by the foregoing unilateral action , taken with- out regard to the Union 's position as the duly designated bargaining agent for the employees, the Respondent violated Section 8(a)(5) of the Act (Th e Weston and 202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brooker Company, 154 NLRB 747; M. Swack lion and Steel Co., 146 NLRB 1068, 1069, 1084-85, enfd. October 20, 1965 (C.A. 6)), and also Section 8(a)(3) and (1) (Kiekliaefer Corporation, 127 NLRB 1381, 1382). The testimony of the employees, as set forth above, was credible and it was neither denied nor contradicted by any witness presented by the Respondent. Other than to subject each of these witnesses to a searching cross-examination, the Respondent did not attempt to rebut the testimony which they offered. Accordingly, on their testimony and on this record I conclude and find that the Respondent vio- lated Section 8(a)(1) and (3) of the Act: (1) by adopting a stringent debt col- lection policy as to employees Squires and Cooper, ix obvious retaliation for their having appeared on behalf of the Union at the Board's representation hearing and (2) by the declaration of Manager Ralph Lewis to employees Yates that the latter would not be given any further advance on his wages, that Yates would "have to go to your union man and get you a loan" and by Lewis' further statement to the employee that "now, you see what your union man done?" In the context of the foregoing findings, I also conclude and find that the Respondent further violated Section 8(a) (1) of the Act in the following instances: (1) President Hines' interrogation of James Yates as to the identity of the person who started the union movement coupled with the offer of $20 if Yates could supply this information. (2) Manager Howard Lamb's statement to James Hankins that if the Union came in he "wouldn't have the privileges [he had] been having . . (3) Foreman George Cook's questioning of truckdriver William E Murphy as to his organizational views and his statement that if the Union won the election the Respondent's president would "park the trucks in a vacant lot . .. . (4) Manager O. C. Toler's interrogation of James Conaway as to his views on the Union and those of Conaway's coworker, Frederick English.3 C. The bargaining conferences In mid-December 1964, Union Representative Parker wrote to the Respondent requesting that collective-bargaining sessions be initiated. This letter was referred to Attorney Lawrence A. Smith, one of counsel for the Respondent. As the result of a further exchange of correspondence and several telephone calls, the parties met for their first bargaining conference on January 19, 1965. Thereafter, the parties had 14 bargaining sessions, the last of which was held on June 25. No contract was ever agreed upon. At their first meeting on January 19, the parties were in session for approximately 3 hours The Union was represented by Irving Lebold, regional director for the Union, R. W. Parker, and a committee of six employees. The Respondent was repre- sented by Attorney Stith, Attorney James Sugg, Manager Ralph Lewis, and Manager O. C. Toler. Lebold was present at about half of the subsequent bargaining sessions. Parker, however, was present at all of them. Attorney Stith, principal spokesman for the Respondent during the bargaining conferences, attended all but one of the collective-bargaining sessions. Most of the time at the initial meeting was spent in a review of the Union's pro- posed contract, a copy of which had been mailed to the Respondent early in Janu- ary. Apart from the conventional clauses on recognition and a definition of the bargaining unit, the union proposal provided, in relevant part: in article II (mem- bership), for checkoff by the Respondent of union dues from the wages of employ- ees; article IV (work week), for reporting pay of 8 hours; article V (seniority), for seniority on a unit-wide basis, as well as a stipulation that seniority would govern in the layoff and rehiring of employees and numerous other provisions for the implementation of this article; article VI (holidays), for six holidays; article VII The General Counsel, alleged that two other incidents constituted further independent violations of Section 8(a) (1). One involved the alleged unlawful interrogation of em- ployee Frederick English by Assistant Manager Marvin Weatherly. English's testimony, however. established that the conversation about the Union arose during a meeting with the supervisor in which the employee himself initiated the discussion of several subjects The other incident involved an occasion on the eve of the election when Manager Lewis showed a sample ballot to employee James Yates and suggested that he mark an "X" in the "No" box Whereas the fact that Yates was an illiterate may have added an element of unlawful interference to this effort at persuasion by his superior, it is my conclusion that neither here, nor in the above-described incident involving English, did the Respond- ent violate Section 8(a) (1). STEVENSON BRICK AND BLOCK CO. 203 (vacation ), for I week vacation after 1 year of employment, 2 weeks after 5 years, and 3 weeks after 10 years ; article VIII (wages ), for a 35-cent per-hour increase, and for a continuation of the Respondent's policy of giving all employees a Christ- mas bonus ; article X ( settlement of disputes ), for a grievance procedure ; article XI (arbitration ), for final and binding arbitration by an impartial umpire of any dis- pute which the parties themselves could not adjust ; article XIII (sick leave), for 6 days of sick leave with pay each year; article XIV (funeral leave ), for 3 days funeral leave with pay to attend the funeral of any member of the employee's immediate family ; and article XV (jury duty ), for a full day's pay for each working day an employee was required to serve as a juror. Parker testified that in response to questions from the Union , Attorney Stith stated that the Respondent would not grant any wage increase . The latter testified that at this first session the Union criticized the Respondent 's insurance plan for the employees . According to Stith , both then and later, he suggested that if the Union could offer an insurance policy with better coverage the Respondent would gladly consider it . Attorney Stith testified , however, and his testimony was undenied, that the Union never offered any other insurance plan for the Respondent to consider. On January 20, the parties met again . At this session , in addition to reviewing various provisions of the union proposal , Parker raised the question as to why, in connection with its Christmas bonus, the Respondent paid the Negro employees only $40, whereas the white employees received $ 125. Attorney Stith promised that he would check into the matter and return with an answer . The conference closed after being in session for about 3 hours, with an agreement to resume bargaining in mid-February. On February 16 and 17, the parties held meetings each afternoon. Lebold , Parker, and an employee committee represented the Union , whereas Stith and Lewis repre- sented the Respondent. At this time the Respondent offered its first counterproposal. The salient features of this offer were as follows : article II (union membership), had no provision for checkoff ; article IV (work week ), had no provision on report- ing pay; article V (seniority ), provided that seniority be determined for each employee on a company basis, provided for the establishment of a separate seniority list for the employees in each of the four companies involved, and did not make seniority a primary or mandatory factor governing personnel changes. The para- graph in article V on this issue read as follows: In all matters involving job openings , lay-offs and recalls from layoffs, trans- fer of employees from one job to another , and in all similar matters, each Company shall give full consideration to the seniority of the employees affected or involved , and in all such cases where the Company finds that skill, ability, and other such factors are substantially equal as between the employees involved, seniority shall govern. Article VI (holidays), provided for three holidays. Article VII (funeral leave), pro- vided 2 days of leave for an employee to attend the funeral of an immediate rela- tive. Article VII (wages ), provided that the Respondent would not decrease or reduce the hourly wage of any employee Article X (settlement of disputes), pro- vided for a three-step grievance procedure but had no provision for arbitration. Article XIV (no strikes-no lockouts ), reads as follows: During the term of this Agreement the Companies shall not engage in any lockout of employees , but this provision shall not be construed as limiting or impairing the right of the Companies to cease or reduce their operations on account of business necessities . If the Companies either directly or indirectly violate any provision of this paragraph , the Union shall have such rights and recourse as the law may provide , including liability for any and all injury or damage which may result from such violations . It is understood that the liability here provided for shall extend to the full resources of the Companies. During the term of this Agreement there shall be no strike, walkout, slow down, work stoppage, nor picketing , nor any other concerted action of any nature which has as its purpose or effect the interruption of or interference with the Companies' production . If the Union , either directly or indirectly, authorizes, promotes , supports or condones any violation of any provision of this paragraph , the Companies shall have such rights and recourse as the law may' provide, including liability for any and all injury or damage which may result from such violations . It is understood that the liability here provided for shall extend to the full resources of the Union and shall not be confined to any Local Union which may have been or may be chartered by the Union. 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the 2 days in February on which the negotiators met, the union representa- tive voiced many objections to the Respondent's counterproposal. These objections centered on the provisions as to wages, seniority, holiday pay, the grievance proce- dure, and the no-strike clause. There was no substantial conflict in the testimony of Parker and Stith as to what transpired at these two sessions. It is evident that the Union objected to the Respondent's failure to offer any wage increase. The Respondent maintained that it would grant no raise and that the basic hourly rate would be kept at $1.15. The Union objected to the Respondent's seniority plan on the ground that it did not make seniority the controlling factor in personnel actions and because the Respond- ent proposed to establish four separate seniority lists rather than one list for all employees in the unit. The Union also objected to the no-strike clause and the absence of any provision for arbitration. On holidays, the union representatives pointed out that whereas the Respondent's counterproposal provided for only three holidays, at that very time the-employees were actually getting four paid holidays. Parker testified that when the Respondent's negotiators found that this was correct they amended their proposal to include a provision for four holidays. There was also some discussion of the sick pay provision of the union proposol. The next bargaining session was held on March 3. Parker and a committee of three employees represented the Union. Stith and Lewis appeared for the Respond- ent. At this time the Respondent offered its second counterproposal MRny of the original provisions of its first proposal remained the same. On the other hand there were several changes. Article VI (holidays) provided that employees get four paid holidays a year, the same number they were then receiving. Article VII (funeral leave) was amended to include the father-in-law and mother-in-law of an employee within the list of relatives whose funeral the employee could attend on 2 days of paid leave. Article VIII (pay in case of illness), provided that in the event of sickness lasting more than 6 days the employee would receive up to 6 days of sick pay for the period fiom the 6th to 12th day of his illness. Article X (vacations and vacation pay), provided that all employees with at least 1 year of service with the Respondent would receive 1 week's vacation with pay. Article XI (reporting pay), provided that an employee reporting- for work, without previous notice not to report, would receive a minimum of 2 hours work or, in the event he was not put to work, he would receive 2 hours pay. Article XII (Christmas pay), provided that at Christmas time each employee would receive a lump sum cash amount of not less than $25. Article XVI (jury pay), provided that an employee called to serve on a jury would receive from the Respondent the difference between the amount he received for such jury service and the amount he would have earned while on the job had he been working during such time. All other provisions in the Respondent's second proposal on such issues as checkoff, seniority, arbitration, and the matter of strikes and lock- outs remained the same as in the original counterproposal. Stith testified that on March 3 the Respondent's counterproposal was discussed but that the Union did not press any particular point. At this meeting, the Union, apparently, spent most of the time examining the new proposals offered by the Respondent. In so doing, Parker restated his objection to the seniority clause on the ground that it gave the Respondent complete discretion as to seniority. He also voiced his continuing objection to the lack of any provision for arbitration of grievances and to the provision on Christmas bonuses whereby the Respondent would pay only $25. Since the previous Christmas bonus had exceeded that figure by a substantial margin, Parker contended that the Respondent's proposal actually involved a decrease. On March 9, the parties met again, with the same representatives appearing for the Union and the Respondent as had met the preceding week. In a discussion of reporting pay, the Respondent agreed to increase the number of hours allowed from two to four and also to provide that an employee could telephone the plant at the Respondent's expense on any day the employee might have reason to believe there had been a shutdown. In a discussion of seniority and arbitration the Union pro- posed that the parties adopt a plan in effect at another plant in the area whereby one man in the community had agreed to handle all arbitration cases under that contract. According to Parker, Stith refused to consider this proposal on the ground that he did not believe in arbitration. At this meeting the Respondent offered an amendment to article XIV in its second counterproposal. Pursuant to this amendment, in addition to the three-step grievance STE, VENSON BRICK'AND BLOCK CO . 205 procedure originally provided in the Respondent 's original proposal, the Employer proposed that in the event the grievance was not settled at the third step , the Union would have the right to strike provided several conditions were met. The new clause read as follows: If a grievance has not been satisfactorily settled by the procedure thus pro- vided for, the Union shall have the right to strike with respect to the same, under the following conditions. If the Union desires to strike with respect to such grievance, it shall give two (2) weeks written notice to the Company that it intends to do so. At the expiration of such two (2) week period, the Union may strike , and if it desires, also engage in lawful picketing , on account of the grievance in question, but not for any other cause or reason. Except for such striking or picketing as is here provided for, the Union and the employees shall adhere and conform to the provisions of Article XIX of this Agreement .4 In case the Union chooses not to strike at the end of the two (2) week period referred to above, then the grievance , as to which it gave notice of strike, shall be considered as settled and ended , and the same shall not there- after be the subject of any strike or other action prohibited by Article XIX of this Agreement. There was some discussion of this last proposal by the Respondent. Parker testi- fied, credibly, that when he asked the Employer 's representatives as to what would happen to those who struck over a grievance, they replied that the strikers would be replaced. Stith testified, likewise credibly, that he told Parker and Lebold 5 that in the event of a strike the Respondent would try to keep its plants operating. On March 31, the parties met again. The Union was represented by Parker and the committee of employees. The Respondent, however, was represented by Attorney Sugg, a partner of Stith, and Manager Lewis. Sugg did not testify at the hearing. According to Parker, little was accomplished at this meeting, other than a review by the parties of their earlier positions. The Union asked whether there had been any change in the Respondent's position on seniority, arbitration, checkoff, and the bonus, and the Respondent 's representatives replied that there had been none. It was undenied that Sugg also told the union delegation that he was not in a position to make any commitments, but would have to take everything back to Stith, the Respondent's principal negotiator. On April 23, the parties met once more. Lebold, Parker, and the committee of three employees represented the Union. This time, Stith was present, as well as Manager Lewis, George Roseberry, a representative of the Federal Mediation and Conciliation Service, and a Mr. Ciily, of the North Carolina Department of Labor, were likewise in attendance . Both Parker and Attorney Stith testified as to the sub- stance of the negotiations at this meeting. The testimony of both was largely uncon- tradictory. At the same time, each testified as to topics covered at the meeting, to which the other did not refer in any way during the course of his testimony. These matters will be discussed more fully below. Parker testified that in response to a question by the Union, the Respondent stated again that it would grant no wage increases. The unit involved was made up pre- ponderantly of Negro employees. Parker raised the question as to why all of the Negroes were in one classification whereas the white employees in the unit were in other, and better, pay classifications. Stith answered that this was because all of the Negroes were classed as laborers. The Union also objected to the Respondent's offer in its last counterproposal of a $25 Christmas bonus, in contrast with the $40 bonus which had been paid in 1964. Parker stated that, in voicing this objection, the Union likewise complained that since the election, the Respondent had not only cut the amount of its Christmas bonus, it had also reduced the workweek from 45 to 40 hours. In this connection, Attorney Stith testified that on this occasion he told the Union that the bonus was a Christmas gift and not part of any established bonus plan, so that if it was to be a significant issue he asked that the Union make a proposal on the subject. According to Stith, however, no such proposal was ever forthcoming. Parker testified that, in their discussion of the no-strike clause and the 'Article XIX was the provision banning strikes and lockouts In the Respondent's original counterproposal (quoted earlier herein) it was numbered article XIV. 5 Lebold, however, was not at the meeting of March 9. 206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal of the Respondent to agree on arbitration, Stith told them that if there was any dispute on which the parties were unable to agree it could be taken to the Board or to the courts. According to Parker, Stith also stated that whereas the employees had a right to strike, that if they did so they would be replaced. Parker testified that at this point the members of the union committee told the Respondent's repre- sentatives that because of dissatisfaction with the progress of the negotiations the union members felt that a strike had become necessary and that it was imminent at that very time. The testimony of Attorney Stith was not in any significant conflict with that of Parker, related above. On the other hand, he testified at some length about several matters which, according to him, had been discussed fully at the meeting on April 23, and which subjects Parker in his testimony did not cover in any detail. Thus, Stith testified that at this meeting Irving Lebold insisted upon a complete review of all items which had been covered in their negotiations. Whereas Lebold had been present for the first three sessions, the last meeting which he attended prior to April 23, had been on February 16. According to Stith, Parker, the principal negotiator for the Union at the intervening sessions, had agreed with the Respondent as to all the provisions of a contract, except on the issues of checkoff, seniority, a wage increase, arbitration, and the no-strike clause. Stith testified that on April 23, when Lebold appeared at the meeting he made it clear that it was he, and not Parker, who had the ultimate authority to approve the terms of the contract and that he wanted to review everything that had been covered up to that time. Stith thereafter testified, and his testimony in this respect was not denied or contradicted, that at Lebold's insistence, all provisions of the proposed contracts were then reviewed, many of them over his [Stith's] objection that agreement had already been reached with Parker on them. It is also clear that at this meeting Lebold raised, for the first time, the demand that only a local union be named a party to the contract. The Respondent's pro- posals had contained a clause making both the Union and the Company liable for damage suits in the event of any breach of the contract. According to Stith, Lebold proposed that the International Union not be named a party, and that a local of the Union would be the sole signatory. Stith objected on the ground that since the International had been certified he could see no alternative to naming it in any agreement concluded. Parker conceded at the hearing that the whole issue arose over the Union's concern about the liability of the International for any damage actions arising out of the no-strike provisions on which the Respondent insisted.6 As the session drew to a close on April 23, the Respondent proposed that the next meeting be deferred for from 3 to 4 weeks. At the Union's insistence that an early meeting was imperative because of the likelihood that the employees would vote to go out on strike, the Respondent agreed upon a meeting the following week. On April 30, the parties met again . The Union raised the wage issue and the Respondent stated that there was no change in its earlier position that no wage increase would be considered. The Union suggested that instead of paying a Christ- mas bonus the Respondent should use the money to increase wages, but this like- wise met with a negative response. There was also some discussion of the question as to whether the International or a local would be party to the contract. On this issue also there was no agreement. The meeting lasted only an hour and was then adjourned. After each of the bargaining sessions the union representatives held a meeting at the union hall to report on the results of the negotiations. At such a meeting, held on the evening of April 30, Parker reported to the membership on the status of their negotiations with the Respondent. After he and some of the other members of the bargaining committee had addressed the employees present, a strike vote was taken and all present voted to go out on strike. 6Although Parker did not concede that it was at the meeting of April 23 that this issue was raised by the Union for the first time, he did admit that the negotiations had been in progress for a considerable period before Lebold proposed that the name of the Interna- tional be kept out of the final agreement. STEVENSON BRICK AND BLOCK CO. 207 The strike began May 3, the following Monday, when the Union established a picket line in front of the Respondent 's gates 7 It continued until May 13 , when the Union sent the following telegram to B. G. Hines, the Respondent's president: THIS IS TO INFORM YOU THAT ALL EMPLOYEES NOT WORKING AND ON STRIKE WILL REPORT FOR WORK UNCONDITIONALLY FRIDAY MORNING MAY 14TH 7:30 A.M. The next day, when the strikers endeavored to report for work the Respondent's officials informed them that no work was available In the meantime, collective-bargaining sessions were held on May 7 and 13. At the meeting on May 7, the Respondent withdrew its offer to provide for a Christmas bonus in the contract . According to Parker, Stith told them that since the Union claimed that the bonus had been administered discriminatorily the Respondent was withdrawing its offer completely . After some discussion of their outstanding differ- ences and it appearing that the position of the parties as to checkoff , seniority, arbitration, and a wage increase remained the same, the meeting adjourned. On May 13, the parties met again . The strike was still in progress and that very day the Union sent its telegram to the Respondent offering that the strikers return to work unconditionally . Parker proposed that the strikers be paid $1 .25 an hour since, in any event, the Respondent would have to begin paying that rate in Septem- ber pursuant to changes in the minimum wage provisions of the Fair Labor Stand- ards Act. The Respondent's representatives rejected this offer, however , and Stith told the union delegation that, in any event, at that time no work was available for the strikers who desired reemployment B Once more , Parker reviewed the provisions on checkoff, wages, seniority and arbitration and, again, the Respondent 's repre- sentatives stated that they had not changed their position as to any of these items. At adjournment time, the Union sought an early meeting , but because Stith stated that he would be unavailable for several weeks, the parties set their next conference for the end of May. On May 28, the parties held another bargaining session. The Union requested that the strikers be returned to work and met with the same declination that the Respondent had given at the preceding meeting. Parker , on behalf of the Union, then requested that the Respondent supply it with information as to the number of replacements hired, their rate of pay , and seniority . Stith promised that he would secure the information requested . Parker reviewed the principal differences still outstanding between the Union and the Employer and Stith informed him that there had been no change in the Respondent 's position. On June 4 the parties met once more . Parker, on behalf of the Union, again asked that the strikers be put back to work and received substantially the same declination as had been given on earlier occasions . There was also no change on 7 The parties stipulated at the hearing that the following named were employees of the Respondent and that on May 3, 1965, they did not appear for work : Johnie Becton, Jr. Cody Ushry Edward Brown Herman Brown John Becton Claude Davis, Jr Daniel Bryant Floyd Blango Mark Fonville Edward Bryant Jate Carmon Jimmie Hankins Leonard Bryant Caggie Fields Edward Earl Hargett Dalton Cooper Linwood Harris Edmund Jones, Jr. James A Conaway Joseph Jones Robert Mann Frederick T. English James A. Lark Thomas Murphy Charlie Gray, Jr James Lee Moore Willie White Lellon Hargett Frank Murphy Lawrence Davis, Jr James Loftin Melvin Roberts Riley Davis Lamb Lovick Isaac Thompson John A. Jones William Murphy Z. R. Wallace Willie Hall James Squires Charles Wilson , Jr. J Roy Bryant William Tatum 8 At the hearing, Attorney Stith denied that the Union at any time offered to lower its wage demands to $1 25 an hour Although , in most instances both Parker and Stith were very frank and credible , neither one appeared to have kept copious notes on the bargain- ing conferences As a result, in several instances their facility to recall the complete details of all their numerous meetings was somewhat limited In this instance , it is my conclusion that the recollection of Parker was the more accurate 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any of the other principal issues separating the parties . Parker, who at that point had received none of the information about the replacements which he had requested the week before , renewed the request for this data. Stith told him that he did not know if the Respondent would give it to the Union either then or later.9 The parties met for the last time on June 25 . Parker and a committee of three employees represented the Union, and Stith and Lewis represented the Respondent. Parker asked that the strikers be returned to work. Stith again stated that no work was available. The parties then reviewed the four items which had represented their major differences throughout the negotiations ; namely, checkoff, seniority, arbitra- tion, and a wage increase . The Respondent indicated that its position had not changed. Parker then stated that the Union would accept the Respondent 's position on seniority. He also asked if the Respondent would agree to a wage increase of at least a penny . According to Parker, Stith answered in the negative . 10 Parker also suggested that as to a checkoff arrangement the Union would agree to a practice, then in effect at the Coca Cola plant in New Bern, which permitted a union repre- sentative to be present at the time each employee received his week's wages and at that point solicit the dues from the employee . The Respondent, however, refused to acquiesce in this proposal . The meeting concluded with no progress having been accomplished . Thereafter, no further bargaining conferences were held between the parties. Concluding Findings The appropriate bargaining unit, as found in the representation proceeding and in this Decision as well , consisted of the production and maintenance employees and truckdrivers of the Respondent's four companies, excluding, of course, the categories enumerated earlier. Records introduced at the hearing establish that in February 1965 there were about 75 employees in this unit and that of this number a very substantial majority were Negro. The breakdown of white and Negro employees by companies was as follows: 11 White employees Negro employees Total Stevenson Biick-- -------------------------------------------- 2 24 26 General Wholesale- ------------------------------------------- 10 18 28 Ready-Mix Conciete ------------------------------------------ 4 16 20 Building Supply---------------------------------------------- None 1 1 16 59 75 Payroll data received in evidence disclosed that among the white employees in the unit, 2 were paid $1 . 15 an hour, 2 received $ 1.17, 2 received $ 1.24, and the remain- ing 10 received $ 1.36 an hour or more Among the 59 Negroes one received $1.25 an hour, another received $ 1.20 and the remaining 57 uniformly drew $1.15. As to the Christmas bonus in 1964, these same records reveal that whereas 58 Negroes received $40 each and one received only $25, 14 of the white employees received bonuses ranging from a low of $ 125 to a high of $504.12 The Respondent classified all the Negro employees as "laborers " and the white employees as "skilled." At the bargaining sessions Parker protested that some of the U Parker testified, credibly and without contradiction , that the Respondent eventually furnished the Union with the number of employees it had hired to replace the strikers, but that it never gave him any of the other information which lie had requested. 30 At the hearing Stith testified that when Parker made this statement he considered it as a facetious comment and did not answer it directly . Instead , according to Stith, lie merely asked Parker whether the Union would accept the offer of a penny , but Parker never answered his question. n The identification of employees as to race was made at the hearing by James R Squires, a witness for the General Counsel . His testimony in this regard was neither denied nor contradicted by any subsequent witness 12 The breakdown of bonuses given the white employees was as follows Number Amount Number Amount 1 ------------------------- $25 1 -- ---------------------- 5+443 1 ------------------------- 40 1 ------------------------- 452 11 ------------------------- 125 1 ------------------------- 504 STEVENSON BRICK AND BLOCK CO. 209 Negro members in the unit were driving trailer-trucks and operating cranes and other types of heavy equipment that entitled them to a classification higher than that of laborer. On-the other hand, on cross-examination, he conceded that he could not name any Negro employee who was performing precisely the same job as a white counterpart and receiving less pay. It appears that most, if not all, of the union members were Negroes . All of the strikers were Negro . The Union, however, as the designated bargaining agent for all of the employees in the unit, was under an obligation "to represent equally and in good faith the interests of the whole group." Hughes Tool Company v. N.L.R.B., 147 F.2d 69, 74 (C.A. 5). In keeping with this obligation the Union could not be expected to acquiesce in the pay scale and bonus arrangement which, on the surface at least, appeared to place the Negro employees in a less favorable position than the white employees in the unit. In this connection the Union endeavored to bargain about the bonus and pay from the outset of its conferences with the Respondent and in its first contract pro- posal it included a provision that the Respondent would continue the practice of granting a Christmas bonus. For some while the Respondent ignored the matter. After the Union complained as to the absence of any provision of a bonus in the Respondent's first counterproposal, the Respondent offered to pay a bonus to each of the employees of "not less than $25." Attorney Stith testified at the hearing that when he made this proposal he was not aware that the minimum bonus for the pre- ceding year had been $40 . 13 Later, on May 7, when the Union insisted on discussing the bonus questions , the Respondent withdrew even that offer, and never thereafter renewed it.14 The bonus was a bargainable issue (Niles-Bement-Pond Company , 97 NLRB 165, 167, enf. 199 F.2d 713 (C.A. 2); General Telephone Company of Florida, 144 NLRB 311, 315 ) and the seemingly inequitable distribution of it in the past between the white and Negro employees imposed on the Union the burden of bargaining about this matter. The Respondent at first made no offer on the subject . When the Respondent finally made a bonus offer and thereafter , as its counsel stated, the Union "made an issue about it," the Employer 's response was the complete with- drawal of the offer . By this action the Respondent demonstrated that it did not propose to reach an agreement with the Union on the bonus issue, and that it pre- ferred to thwart the accomplishment of such an objective . On this record, it is my conclusion that the Respondent's conduct in connection with the bonus question was the antithesis of good-faith negotiations and a violation of Section 8(a)(5) of the Act. Throughout the entire series of bargaining conferences the Respondent took the unyielding position that there would be no change in its wage structure . Initially, the Union sought a 35 -cent wage increase . After the strike began on May 3, Parker amended this offer with the suggestion that the Respondent start paying a minimum of $1.25 an hour, the equivalent of a 10-cent increase for most of the employees. Finally, late in June, Parker asked whether there was a prospect of any raise, even a penny. To all of these requests , the Respondent's answer was an emphatic nega- tive. Similarly, the Respondent refused to consider any of the Union's demands for a checkoff of union dues. Whereas the Union's initial request for such a checkoff was met by the Employer 's objection that the proposal would be administratively difficult and costly to effectuate , the Union subsequently altered its original pro- posal drastically to meet this objection . Thus, in June, Parker suggested that the Respondent follow a plan then in effect at the Coca Cola plant in New Bern whereby, on payday, one of the union members in the bargaining unit stood beside the pay window while the employees were betting their wages and solicited from each individual his union dues for the month. This proposal, however, met with is Whereas two employees in 1964 had received a bonus of only $25, the other 73 em- ployees had received $40 or more 14 Stith's testimony on this issue was rather confused and contradictory At one point lie testified that as to the bonus proposal made by the Respondent, "No, we did not with- draw it " Shortly thereafter, however, he testified "No, it was put this way, they made an issue about it [the bonus] ; . . . I said, if It's a serious stumbling block, let ' s withdraw it." Although Stith disclaimed any knowledge as to the amount of the Christmas bonus in 1964, this disclaimer was not convincing. Apart from the fact that in his position as the chief negotiator for the Respondent lie would presumptively know about such statistics, he was assisted throughout the negotiations by Ralph Lewis , manager of the Respondent's plant who must certainly have known the amounts which the Respondent paid in 1964 25 7-551-6 7-vol 160-15 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the same adamant rejection as had all of the other union requests for the inclusion of a checkoff provision in the collective-bargaining agreement.15 The checkoff, like wages, is a mandatory subject for bargaining. N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131 (C.A. 1), cert. denied 346 U.S. 887; H. K. Porter Company, Inc., 153 NLRB 1370. As to wage demands, there is, of course, no requirement in the Act which imposes on an employer the obligation to grant an increase merely because a union makes such a request. Grinnell Com- pany, Inc., 153 NLRB 1334; Empire Terminal Warehouse Company, 151 NLRB 1359. Neither is there a requirement that an employer acquiesce in the demands of a bargaining agent for a checkoff provision. On the other hand, the statutory right to refuse to agree to a particular proposal or to make a concession may not be used "as a cloak ... to conceal a purposeful strategy to make bargaining futile or fail." N.L.R.B. v. Herman Sausage Company, 275 F.2d 229, 232 (C.A. 5). Earlier herein, it was found that the Union, in fulfillment of its responsibility as the collective-bargaining representative for all the employees in the unit, sought to change an ostensible imbalance in the bonus structure as to the white and Negro employees. A similar disparity prevailed as to the wages paid these same mem- bers of the appropriate unit. As found above, out of 59 Negroes in the unit, 57 received the minimum wage, whereas this was true of only 2 of the 16 white employees in the unit. Nevertheless, all requests of the Union for a change in the wage structure were met with the Respondent's answer that it would grant no increases and that the only provision on the subject to which it would agree was a clause whereby it guaranteed merely that wages would not be decreased during the term of the contract. Yet, when it withdrew the provision for a Christmas bonus and at the same time offered no compensating increase in the wage rate, the Respondent, in effect, presented the employees with the prospect of getting less at the end of the year than they had received before they had a union. In pressing the Union to the point of impasse on the maintenance of the status quo on wages and at the same time withdrawing its offer of a Christmas bonus from their negotia- tions, the Respondent must have known that the Union would never agree. The Respondent's attitude in this connection and its consistent rejection of all efforts by the Union to propose a checkoff provision which would meet the Employer's objections, cause me to conclude and find that the Respondent maintained this attitude as to checkoff and wages for the purpose of frustrating agreement with the Union. In so doing, it violated Section 8(a)(5). Seniority, of course, is another mandatory subject for bargaining. Industrial Union of Marine and Shipbuilding Workers of America v. N.L.R.B., 320 F.2d 615, 620 (C.A. 3), cert. denied 375 U.S. 984; N.L.R.B. v. The Proof Company, 242 F.2d 560, 562 (C.A. 7). Here, again, however, the Respondent's position on this throughout the negotiations manifested no serious desire to agree upon a provi- sion that would be acceptable to the employees' bargaining agent. Thus, although the appropriate unit consisted of the production and maintenance employees and the truckdrivers for all the companies, the Respondent's seniority proposal would establish a separate seniority list for each of the four companies. Further, its pro- posal provided that in connection with job openings, layoffs, transfers, and similar matters, seniority would govern, only where the company found that "skill, ability, and other such factors are substantially equal ." 16 This provision was rendered even less meaningful by a subsequent paragraph on management rights 17 which retained in each company the complete discretion to effect transfers and other per- sonnel changes. Parker testified, and his testimony in this respect was neither denied nor contradicted, that in a discussion of this provision during the bargaining con- ferences, Attorney Stith stated that, under the Respondent's proposed seniority and management rights clauses, if an employee with many years of service was trans- ferred from one company to another, at the new company "he'd lose all seniority." 18 18 At the hearing, the Respondent offered some testimony that Lebold had stated during the bargaining conferences that he, personally, did not care whether the Union secured a checkoff arrangement. On the other band, Attorney Stith conceded that at no time did the Union withdraw its request for a checkoff provision in the final agreement. 18 The quotation is from the Respondent's first and second counterproposal. The se- niority provision remained the same in both. 17 Captioned "Plant Management , Discipline and Discharge of Employees," article IX In the Respondent's first counterproposal and appearing in identical terms as article XIII In the Respondent's second counterproposal. 18 The quotation is from Parker 's credible and undenied testimony. STEVENSON BRICK AND BLOCK CO. 211 The integration of the four separate companies was so complete that a single bargaining unit embracing all of them had been found appropriate in the represen- tation proceeding. In keeping with this determination the Union sought a seniority system based on employment anywhere within the unit. The Respondent rejected this approach and insisted that it would agree only to a system whereby seniority would be based on service within a particular company and further, that it must be nontransferable. Sound business reasons in the management of the separate facilities might have dictated the adoption of some such version of departmental seniority. No reasons of this nature, however, were offered during the course of the bargaining sessions. Instead, the Respondent rested on the adamant assertion, voiced at the outset of the collective-bargaining negotiations, that four separate seniority lists would have to be established. This position, proffered in its first counterproposal, was maintained by the Respondent throughout the negotiations. Judged by any standard, the Respondent's proposal on this issue allowed it to retain full control over seniority and offered the bargaining agent nothing. Since the Employer at no time sought to explain its attitude as having been dictated by a compelling business necessity, I conclude and find that the Respondent's firm adher- ence to this position throughout the negotiations was a furf'her manifestation on the part of the Employer that it did not really care to reach a binding agreement with the Union on this or on any other issue. It is indeed true that the Respondent made a number of concessions during the course of the negotiations. It agreed upon several minor items such as pay for jury duty, reporting time and funeral leave as well as an arrangement for sick leave. It also agreed upon one substantial matter, namely, a week's vacation for each employee with a year or more of service. On the other hand, its adamant opposition to any concession with respect to seniority, the checkoff, a Christmas bonus or a wage adjustment, made impossible the finalization of any complete agreement. Earlier herein, it was found that the bargaining sessions were preceded by extensive violations of Section 8(a)(1), (3), and (5) of the Act from Septem- ber to December 1964 on the part of the Respondent's supervisory hierarchy. It is my conclusion that, in the light of this background, the Respondent's position on the foregoing subjects at the bargaining sessions held during the winter and spring of 1965 was motivated by a desire to defeat, rather than to promote, an agreement. N.L.R.B. v. Reed & Prince Manufacturing Co., supra; East Texas Steel Castings Inc., 154 NLRB 1080. In view of the facts found above with respect to the Respondent's conduct during the negotiations, considered along with the back- ground evidence as to the Respondent's opposition to union organization generally, it is my conclusion that the Respondent's entire course of action throughout the bargaining conferences was lacking in a good-faith desire to arrive at a final agree- ment in its negotiations with the Union. For this reason, I conclude and find that the Respondent's violation of Section 8(a)(5) and (1) commenced on January 19, 1965, the date on which it met with the Union for the first baigaining session. Cabinet Manufacturing Corporation, 140 NLRB 576, footnote 2.19 19 The General Counsel likewise alleged that the Respondent failed and refused to meet with the Union at reasonable times and places. The parties held 14 bargaining Sessions during the course of the 6-month period During at least one of those meetings, the confer- ence held on March 31, 1965, Attorney Stith was absent and nothing was accompli"hed be- cause his substitute stated, in effect, that his participation would be limited to making a report on the meeting to Stith Further, in the period subsequent to the strike the Respond- ent manifested no urgency about conferring with the Union A period of over 2 weeks elapsed between the conference of May 13 and the one held on May 28, and thereafter only two more meetings were held during the month of June On the other hand, there were times during the early history of the bargaining conferences when the union representa- tives were unable to meet with Stith as early as lie had proposed Also, some of the ses- sions were scheduled to meet in the afternoon, rather than earlier in the day, in order to accommodate Lebold, the Union's regional director, since his air travel connections would not allow him to reach New Bern in the morning. As a result of the foregoing considera- tions, it is my conclusion that the General Counsel has not proved by a preponderance of the evidence that the Respondent violated Section 8 (a) (5) Insofar as the complaint alleged that the Employer failed to meet with the Union at reasonable times and places. It should be noted also that during the course of the hearing the General Counsel with- drew two other allegations of the complaint in Case 11-CA-2717. These were to the effect that the Respondent also violated Section 8(a) (5) by insisting on the inclusion of a no- strike clause while at the same time refusing to grant any form of arbitration (subpara- graph 10-d) and by insisting on the inclusion of a hospitalization insurance program whose benefits were determined on the basis of race ( subparagraph 10-i). 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. The issues with respect to the strike; conclusions with respect thereto The strike which began on the morning of May 3 lasted until May 13, 1965, when it was terminated by the Union. At the bargaining session held on the latter date the Union notified the Respondent that it was terminating the strike and offer- ing, on behalf of the employees, that all the strikers return to work unconditionally. The following morning the Union sent another telegram of similar import to the Respondent. That morning, also, many of the strikers returned to the Respondent's premises and sought reemployment. All of them who did so were told that there was no work for them. Subsequent efforts on the part of the Union to secure their reinstatement were answered by the Respondent with the declaration that no work was available. The General Counsel alleged that the walkout was caused and pro- longed by the Respondent's unfair labor practices and that, for this reason, it was an unfair labor practice strike. This is denied by the Respondent, according to whom the strike was purely economic in character. Subsequent to each bargaining session the union committee reported to the membership at a meeting in the union hall. After the bargaining conference on April 30, this committee made the customary report to the employees in such a meeting. Parker testified that after this report to the membership, a motion to strike was offered, and the 40 to 50 employees present voted unanimously in favor of a strike. Earlier herein, it has been found that the Respondent's entire course of conduct during the bargaining sessions manifested bad faith and constituted a viola- tion in Section 8 (a) (5) and (1) of the Act. The Board has found that an employ- er's refusal to negotiate in good faith with the majority representative of its employees frequently precipitates such employee unrest that a strike ensues. When this happens, it is well settled that the resulting walkout is an unfair labor prac- tice strike and that, upon its termination, the strikers are entitled to reinstatement regardless of whether replacements have been hired to take their jobs. Mastro Plastics Corp v. N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. Stilley Plywood Com- pany, Inc., 199 F.2d 319, 320-321 (C.A. 4), cert. denied 344 U.S. 933; N.L.R.B. v. American Aggregate Company, Inc., 305 F.2d 559, 562-563 (C.A. 5). On the record in this case, I conclude and find that the strike here involved resulted from the Respondent's refusal to negotiate in good faith with the majority representa- tive. Accordingly, the work stoppage in issue must be, and is, found to have been an unfair labor practice strike. Consequently, the employees who joined in the walkout were unfair labor practice strikers, entitled, upon application, to reinstate- ment regardless of whether they had been replaced. The Respondent's refusal to accord reemployment to the strikers on and after May 13, 1965, when they uncon- ditionally sought reinstatement, was a violation of Section 8(a)(3) and (5).20 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY I shall recommend the conventional cease-and-desist order and the affirmative relief which is customarily ordered in cases of this nature . Thus, it will be recom- mended that the Respondent be ordered (1) to bargain collectively with the Union, upon request; (2) to offer to all the strikers named in the complaint, and also in Appendix A attached to this Decision , immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for the strikers; and (3) to make whole all of said strikers for any loss of earnings they may have suffered by reason of the discrimination against them, by payment to each of a sum of money equal to that which each normally would have earned as wages from 5 days after the strikers' unconditional request 'O The names ^of the strikers appear in footnote 7, supra It was on their behalf that the Union made an unconditional application for reemployment on May 13 and 14, 19(13 All of them so listed in the foregoing numbered footnote are deemed unfair labor practice strikers within the terms of the above finding and, therefore, are entitled to reinstatement with backpay. STEVENSON BRICK AND BLOCK CO . 213 for reinstatement on May 13, 1965, to the date of their reinstatement or Respond- ent's offer of reinstatement less the net earnings of each during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Interest shall be added at the rate of 6 percent per annum in accord with the decision of the Board in Isis Plumb- ing & Heating Co., 138 NLRB 716. In view of the fact that the unfair labor practices committed are of a character striking at the root of employee rights safeguarded by the Act, it will be rec- ommended that the Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the Union is a labor organiza- tion, all within the meaning of the Act. 2. All production and maintenance employees and truckdrivers employed by the Respondent at New Bern, Havelock, and Beaufort, North Carolina, excluding office clerical employees , professional employees, outside salesmen, guards and supervisors as defined in the Act , constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since November 20, 1964, the Union has been the exclusive representative, for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. By failing and refusing to bargain in good faith with the Union as the exclu- sive bargaining representative of its production and maintenance employees and truckdrivers, and by unilaterally changing the hours of work in November and December 1964 of employees in the appropriate unit, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1 ) of the Act. 6. The strike, which commenced on May 3, 1965 , was caused by the Respond- ent's unfair labor practices , and hence was an unfair labor practice strike. 7. By refusing to reinstate the unfair labor practice strikers, upon their uncondi- tional request, the Respondent has discriminated in regard to their hire and tenure of employment, thereby discouraging membership in the aforesaid labor organiza- tion, and has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(3) and ( 1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9. The General Counsel has not proved by a preponderance of the evidence that the Respondent interfered with , restrained, or coerced employees in the exercise of the rights guaranteed by the Act, except by the acts and conduct found herein to have been violative. Upon the foregoing findings and conclusions and the entire record , and pursuant to Section 10(c) of the Act, I hereby issue the following: RECOMMENDED ORDER Stevenson Brick and Block Company, General Wholesale Building Supply Com- pany, New Bern Building Supply Company and Ready-Mix Concrete Corp, their officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Discouraging membership in any labor organization of their employees, by discriminating in regard to their hire, tenure, or any other terms or conditions of employment. (b) Interrogating employees concerning union affiliation or activities in a manner constituting interference, restraint, or coercion in violation of Section 8(a)(1). (c) Threatening the loss of privileges and curtailing credit extended to their employees for the purpose of thwarting or deterring them in the exercise of any of the rights guaranteed employees in Section 7 of the Act. (d) Threatening employees with layoffs or any other form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of , any labor organization. 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Refusing, upon request, to bargain collectively in good faith with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of all production and maintenance employees and truckdrivers employed by the Respondents at New Bern, Havelock, and Beaufort, North Carolina, excluding office clerical employees , professional employees, outside salesmen, guards, and super- visors as defined in the Act. (r) Discouraging membership in the above-named Union, or in any other labor organization by refusing reinstatement to unfair labor practice strikers upon their unconditional request , or by discriminating against their employees in any other manner in regard to their hire or tenure of employment or any terms or conditions of their employment. 2. Take the following affirmative action which is necessary to effectuate the pur- poses of the Act: (a) Upon request, bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, as the exclusive representative of the employees in the aforestated appropriate unit with respect to rates of pay , wages, hours of employ- ment, and other conditions of employment , and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privi- leges, of all those employees listed in Appendix A, dismissing , if necessary, any person hired on or after May 3, 1965, and make whole the aforesaid employees, in the manner set forth in the section of this Decision entitled ,"The Remedy." (c) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other records, necessary to analyze the amounts of backpay due under the terms of this Recommended Order. (d) Post at their premises , copies of the attached notice marked "Appendix B." 21 Copies of said notice , to be furnished by the Regional Director for Region 11, after being duly signed by the Respondents ' authorized representative, shall be posted by them upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employ- ees are customarily posted . Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 11, in writing, within 20 days from the receipt of this Decision, what steps the Respondents have taken to comply therewith.22 IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges any unfair labor practice , other than as herein specifically found. 21 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order is enforced by a decree of a United States 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." 22 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith " APPENDIX A Johnie Becton, Jr. William Tatum Edward Brown Herman Brown Cody Ushry Claude Davis, Jr. Daniel Bryant John Becton Mark Fonville Edward Bryant Floyd Blango Jimmie Hankins Leonard Bryant Jate Carmon Edward Earl Hargett Dalton Cooper Caggie Fields Edmund Jones, Jr. James A. Conaway Linwood Harris Robert Mann Frederick T. English Joseph Jones Thomas Murphy Charlie Gray, Jr. James A. Lark Willie White Lellon Hargett James Lee Moore Riley Davis James Loftin Frank Murphy John A. Jones Lamb Lovick Melvin Roberts Willie Hall William Murphy Isaac Thompson J. Roy Bryant James Squires Z. R. Wallace Lawrence Davis, Jr. Charles Wilson, Jr. STEVENSON BRICK AND BLOCK CO. APPENDIX B 215 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 NOT unlawfully interrogate our employees concerning their union activities or sympathies. WE WILL NOT discourage membership in any labor organization of our employees by discriminating in regard to their hire, tenure, or any other terms or conditions of employment. WE WILL NOT threaten the loss of privileges and curtail credit extended to our employees for the purpose of thwarting their exercise of, or deterring them from exercising, any of the rights of employees specified in Section 7 of the Act. WE WILL NOT threaten employees with layoffs or any other form of reprisal because of their membership in, sympathy for, support of, or activity on behalf of, any labor organization. WE WILL NOT discourage membership in Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, by refusing rein- statement to unfair labor practice strikers upon their unconditional request, or by discriminating in any other manner in regard to our employees' hire, or tenure of employment, or any term or condition of employment. WE WILL offer all unfair labor practice strikers whose names are listed in Appendix A attached to the Trial Examiner's Decision, immediate and full reinstatement to their former or substantially equivalent positions, and make them whole for any loss of pay each may have suffered as a result of the discrimination against them. WE WILL, upon request, bargain collectively with Retail, Wholesale and Department Store Union, AFL-CIO, as the representative of the employees in the following appropriate unit with respect to rates of pay, wages, hours of work, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All of our production and maintenance employees and truckdrivers employed at New Bern, Havelock, and Beaufort, North Carolina, exclud- ing office clerical employees, professional employees, outside salesmen, guards, and supervisors as defined in the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exer- cise of these rights. All our employees have the right to form, join, or assist any labor union, or not ,to do so. STEVENSON BRICK AND BLOCK COMPANY, GENERAL WHOLE- SALE BUILDING SUPPLY COMPANY, NEW BERN BUILDING SUPPLY COMPANY, READY-MIX CONCRETE CORP., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NoTE,We will notify all employees named in Appendix A to the Trial Examin- 'er's Decision if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after dis- charge 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina 27101, Telephone 723-2911, Extension 302.