May Aluminum, Inc.

MAY ALUMINUM, INC. 575 prejudice to their seniority or other rights and privileges , and make them whole for any loss of earnings or other benefits they may have suffered by reason of the Respondent's discrimination against them. I shall also recommend that the estate of John Cole, Jr., deceased , shall be paid for any loss of earnings or other benefits from the time of his ability to return to light work in June until his death in February 1966. Backpay in each case shall be computed in the manner set forth in F. W. Wool- worth Company, 90 NLRB 289, and shall include interest in the amount and man- ner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. [Recommended Order omitted from publication.} May Aluminum , Inc. and Aluminum Workers International Union, AFL-CIO. Case 203-CA-2013. August 23, 1966 DECISION AND ORDER On May 13, 1966, Trial Examiner Rosanna A. Blake issued her Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices alleged in the com- plaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Respondent 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, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. 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, the brief, and the entire record in this case, and hereby adopts the Trial Examiner's findings, con- clusions, and recommendations. [The Board adopted the Trial Examiner's Recommended Order.] TRIAL EXAMINER'S DECISION AND ORDER STATEMENT OF THE CASE Upon charges filed on April 2 and 9, May 14, and June 22, 1965, by Aluminum Workers International Union, AFL-CIO, Local 201, the General Counsel, acting through the Regional Director for Region 23 issued a complaint on May 20, 1965, and an amendment to the complaint on June 23 , 1965, in which it was alleged that May Aluminum, Inc, had engaged in conduct which violated Section 8 (a) (1), (3), and (5 ) of the Act. In its answer and at the hearing, Respondent admitted certain allegations of the complaint, such as the commerce allegations , but denied having committed any unfair labor practice. Pursuant to due notice , a hearing was held in Wharton, Texas, on July 6, 7, 8, 9, 13, and 14, 1965, before Trial Examiner Rosanna A. Blake. All parties were repre- sented , were given full opportunity to present evidence, to examine and to cross- examine witnesses, to argue orally, and to file briefs.' The parties waived oral 160 NLRB No. 48. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD argument. Subsequently, the General Counsel filed a brief as did counsel for the Respondent. Having considered the entire record, the briefs, and having observed the witnesses while testifying, I make the following: 2 FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS AND CONCLUSIONS; THE LABOR ORGANIZATION INVOLVED May Aluminum, Inc., is a Texas corporation with its principal plant and place of business at El Campo, Texas, where it is engaged in the manufacture of alu- minum extrusions and other aluminum materials and products. During the 12 months prior to the issuance of the complaint, a representative period, the Com- pany manufactured and distributed products valued in excess of $50,000 which were shipped from its El Campo, Texas, plant to points located outside the State of Texas. During the same period, Respondent received at its El Campo plant purchased goods and materials valued in excess of $50,000, which were shipped directly to El Campo from points located outside the State of Texas. Upon the foregoing undisputed facts, Respondent admits and I find that it is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. It is also undisputed and I find that Aluminum Workers International Union, AFL- CIO, Local 201, is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES A. Background May Aluminum, Inc., herein referred to at times as the Company or the Respondent, operated a plant in Houston, Texas, between 1952 and sometime in late 1963. The employees at Houston were represented by the International Asso- ciation of Machinists and the Company and that union entered into a series of collective-bargaining contracts. The last of the series was effective until October 31 or November 1, 1964; i.e., for approximately 1 year after the plant was opened at El Campo. According to President May, there was only one "wildcat" strike and only two or three grievances were filed while the Company was at Houston. The relations between the Company and the union, May said, were "as amicable" as they "could be" but he would not say that the Company and the Machinists "got along too well with anybody that was upsetting our regular routine of work." The record does not disclose why the plant was moved to El Campo but the Company gave the Machinists notice of its intention to leave Houston. Although most of the supervisors and die-shop employees made the move from Houston, most of the hourly paid employees at El Campo were new. The Company and the Machinists had "several discussions" about recognition of the latter as the representative of the employees at El Campo but there is no evidence that the Company recognized the Machinists as the bargaining representative of the employ- ees after the move or that it abided by the terms of the unexpired contract. Accord- ing to President May, a representative of the Machinists came to El Campo and talked to some of the men and he [President May] offered the Machinists' repre- sentative a list of the employees, an "office" in the plant, and to send the men in one at a time to talk to him. A similar offer, May said, was made to Represent- ative White of the Aluminum Workers. The Machinists' representative refused the offer and there is no evidence that it was accepted by the Aluminum Workers. B. The union campaign, the Company's conduct, and the Union's certification In late August 1964, the Aluminum Workers, herein referred to as the Union, began an organizational campaign among the El Campo employees. Upon charges filed by the Union in September and October 1964, a complaint was issued, a hearing was held, and the Board thereafter issued a Decision and Order in which it found that the Company had violated Section 8(a)(1) of the i Correspondence authorizing me to insert into the record exhibits omitted Inadvertently has been marked as Trial Examiner's Exhibit 1A through 1C and the omitted exhibits are hereby made a part of the record. Despite requests since March 7, 1966, Respondent has not replied to my letter. 5A11 credibility determinations made herein are based in part upon my observation of the demeanor of the witnesses while testifying. MAY ALUMINUM, INC. 577 Act by engaging in surveillance, by repeatedly interrogating employees about the union activity, and by threatening reprisals for union activity. The Board also found that the Company violated Section 8(a)(3) of the Act by discharging an employee because of his union activity. May Aluminum, Incorporated, 153 NLRB 26. The Union filed a representation petition on October 20, 1964, the Board con- ducted an election on November 20, 1964, the Union received a substantial majority, and on or about December 1, it was certified by the Board as the exclu- sive bargaining representative of the El Campo employees in an appropriate bar- gaining unit. No question is raised concerning the conduct of the election or the validity of the Board's certification of the Union. Union Representative White testified without denial that "right after the election" he went to the plant to put some notices on the bulletin board, that he "was ushered into [Company President] May's office and given a big blast about the 1964 unfair labor practice charges" and that he told May that he was not there to be inter- rogated or to talk about the charges, that they would be handled by the Govern- ment. May then told White, "If that is all you have to say, get out." 3 C. The issues The General Counsel contends and the Company denies that the Company vio- lated Section 8(a)(1) of the Act by discontinuing certain periodic increases because of the union activity, and by threatening employees with reprisals if they engaged in a strike and later because they had engaged in a strike; that it violated Section, 8(a)(5) and (1) of the Act by failing to bargain in good faith with the Union, the certified bargaining representative of the employees in an appropriate bargain- ing unit, by refusing to "negotiate and discuss" the subject of raises with the Union, by making unilateral changes in wages and jobs classifications, and by failing to furnish the Union certain data requested by it; 4 that it violated Section 8(a)(3) of the Act by failing to reinstate certain named strikers, the strike having been, caused and prolonged by Respondent's failure to bargain in good faith and the Union having made an unconditional offer on behalf of each striker to return to, work. D. The Company's suspension in October 1964 of certain periodic increases Except for comparatively few skilled employees, such as those in the die shop and/or die repair shop, new employees are assigned to the shipping department and their starting rate is $1.25 an hour. The Company's policy was to give each employee a 21/2 cent an hour raise at the end of a 45-day probationary period and a 21/2-cent-an-hour increase every 90 days thereafter until he reached the top rate in the classification. If an employee was transferred to another classification, he received the base rate for that job and was given a 21/2-cent-an-hour raise every 90 days thereafter until he reached the top rate in his new job .5 This policy was explained to the employees when they were hired. The first charge in the prior case was filed in September 1964 and it is clear that the Company became aware of the campaign sometime in the late summer or early fall of 1964. Nonetheless, the Company continued to give all of the periodic increases until on or about October 26, 1964; i.e., a few days after the Union filed its representation petition. President May testified that the 90-day periodic increases were stopped "before the election" because the Company understood that employers had,been found guilty of unfair labor practices "for granting raises and, trying to influence the election. So, after we got the petition, we stopped them." At another point, President May explained that the decision was made when the petition was filed to "hold up any raises until after the election." However, two 90-day raises were given a few days after the petition was filed to employees who had been "missed" earlier. These were the last 90-day raises given until March 30, 1965. (See infra.) There is no claim that the Company gave the employees any reason for its action. On the other hand, the Company continued to give the 45- day raises throughout the entire period. S The first charge in the instant case was not filed until April 1965. - I The motion of the General Counsel to withdraw paragraph 11(b) of the complaint is hereby granted. s At one point, company counsel referred to these raises as "merit" increases but it is clear that they were granted automatically and solely on the basis of days worked. 257-551-67-vol. 160-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although President May explained when and why it was decided to "hold up" the 90-day raises "until after the election," he did not explain when or why it was decided not to resume giving such raises once the election was over. Company counsel stated for the record that the Company discontinued the 90-day raises but continued giving the 45-day raises becauses the latter had been given uniformly whereas there had been a "mix-up" about the 90-day raises so that the Company could not justify a continuation of those increases. However, there is no evidence that the Company ever told the Union that the 45-day raises were still being given or that it ever explained to the Union the reason, stated by counsel, for continuing the one but not the other. Moreover the Company's witnesses, President May and Personnel Manager Ralph W. Burgess, gave inconsistent testimony concerning the "mix-up." According to Pres- ident May, the previous personnel manager had been notifying the payroll clerk when to give the raises and when Burgess became personnel manager, he [Burgess] left it up to the payroll clerk who got the schedule "fouled up." Burgess, who became personnel manager on June 15, 1964, testified: the payroll clerk had made a mistake back before I came to work for the company. Burgess went on to say that he found that the employees had been given a 45- day increase and another increase in another 45 days, i.e., 90 days after their dates of hire, whereas the first 90-day increases should not have been given until 90 days after the 45-day increases, that is, not until the employees had worked 135 days. He also explained: So what had happened, some of the people had been given raises too fast. So we went back and tried to correct this by holding off awhile . . . . In other words, holding off forty-five days until their regular time of raise would have occurred. When asked when the mistake was discovered, Burgess answered: I would say it was sometime in July or possibly the first part of August, [1964] after I had been to work a month or so.6 Because it was Personnel Manager Burgess, rather than May, who discovered the "mix-up" and because he was responsible for getting the raises back on schedule, I credit his testimony concerning when the mix-up occurred and when it was discovered. E. The negotiations before the strike 1. Introductory statement The Union was certified on December 1, 1964, and the first bargaining meeting was held on January 6, 1965. Ten more meetings were held before a strike which began on April 8 and ended on April 27. Two meetings were held during the strike, another on the day the strike ended, still another in early May, and the last on June 23? The meetings usually lasted 21/2 or 3 hours. All of the meetings were held in the office of President May at the plant in El Campo with President May being the chief spokesman for the Company and Union Representative White being the chief spokesman for the Union. Personnel Manager Ralph Burgess was present at most of the meetings and Local Union President Wil- liam McElroy, a die-shop employee, attended all of the meetings before the strike and the first one after the strike began.8 However, neither Burgess nor McElroy took an active part in the negotiations. A Federal mediator attended the meeting on April 15 and probably all of the meetings thereafter. Counsel for both parties were present at all of the meetings after the strike ended. ° If the mistake was discovered in July or early August, this would mean that the "mix-up" had been straightened out by at least the middle of September; I.e., a month before the Union filed its petition. 4 A few other meetings were scheduled but were canceled because either Company Presi- dent May or Union Representative White could not be present. a McElroy lived in Houston which is approximately 75 miles from El Campo. After the strike began, McElroy found employment in Houston and resigned as president of the Local. MAY ALUMINUM, INC. 579 Union Representative White, Local President McElroy, President May, and Per- sonnel Manager Burgess testified concerning the negotiations. There are compara- tively few conflicts in their testimony except with respect to the question of whether the Company's periodic raise policy was discussed and, if so, when it was discussed and what was said. Union Representative White had before him his copy of the Union' s proposed contract on which he had made some notes and, in most cases, White was able to state the subjects discussed at each meeting and in a number of cases, was able to state what was said and by whom. Local President McElroy was able to recall the subjects discussed, those on which the parties reached agreement and those which were still in dispute at the close of the meeting on April 15. Personnel Manager Burgess testified that his recollection of the clauses agreed to and those not agreed to was similar to that of McElroy. With some exceptions, Company President May could not recall what was dis- cussed at particular meetings and was generally unable to state what he said or what White said.9 He could say only that various subjects were discussed and iden- tify the clauses agreed to and those on which agreement was never reached. He said that he had learned that he could not rely on his memory and made it clear that he regarded undated notes as totally worthless. However, he had made very few notes and few if any of them were dated. The findings with respect to the negotiations, except with respect to the subject of the periodic raises, are based primarily on the undenied and credited testimony of Union Representative White. In some cases, the findings are based on the undenied testimony of Personnel Manager Burgess, a witness for Respondent, and that of President May who was called first by the General Counsel and later by Respondent. The testimony concerning the discussions, if any, about the periodic increases is set forth separately. 2. The prestrike meetings At the first meeting, i.e., on January 6, 1965, the Union handed the Company a copy of its proposed contract which President May said he would need time to study. There was some discussion about an employee who was on voluntary layoff status and Union Representative White commented that supervisors were interrogat- ing employees about the Union. Personnel Manager Burgess testified without denial that White stated that "he knew" that the Company "couldn't control the tongues" of the supervisors but he wanted to bring their conduct to the Company's attention. There is no evidence that the Company denied knowledge of the supervisors' actions or that it stated that it would take steps to correct the situation. Either on January 6 or at the next meeting on January 20, President May told the union representatives that the Company had been considering for some time making some changes in the die shop. He explained that the die operations had been costing the Company too much, quoted some figures, and stated that it would have to buy more dies from outside. Union Representative White commented that this was an "awful" time to start subcontracting, that the Company might decide to subcontract everything, and that the Union would oppose any subcontracting. On January 20, the parties began going through the nonmonetary clauses in the Union's proposed contract, both of them preferring to postpone serious negotiations concerning such questions as holidays, vacations, and insurance, and, in particular, wages until after the nonmonetary provisions had been discussed. Agreement was reached quickly on the preamble and the clauses headed recog- nition and purpose.10 Certain subclauses of the Union's proposed union-security clause were agreed to with little difficulty, including the Union's proposal that the B I suggested that May state, whenever possible, what White said which led May to con- clude that agreement was reached, such as, "We have no problem about that, let's go on to the next one." May's answer was that "There were very few definite statements that I could say I remember " May was then asked the following questions by company counsel and gave the following answers : Q. . . . When [White] did make [a statement ] In what way would he make it? A. I don't know To me those things didn't mean a damn thing. Q. What do you mean by that? The way it was satid? (Emphasis supplied.) A. The way it was said. It was meaningless to me. 10 None of the three appears to contain anything controversial in view of the Union's certification. 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD probationary period be 30 days. (As noted supra, the current probationary period was 45 days.) However, May refused to agree to most of the Union's proposals with respect to union security both because he believed that most of them were illegal under the Texas right-to-work law and because he was not going to force the employees to pay a "bounty" to the Union . May agreed to furnish a bulletin board for the Union's use but said "No" to a dues checkoff provision. May pointed out that dues checkoff would cost the Company money. According to May, he subse- quently "softened" his position on checkoff by saying "we'd discuss it later" and, still later, the Company offered a revocable checkoff. (See infra.) Union Representa- tive White understood May to say that he might consider dues checkoff if the employees were willing to pay the cost and there was some discussion of a "trade" on this clause. Agreement was reached on the grievance procedure clause in the Union's pro- posed contract which provided for binding arbitration . There was some discussion about how the union representatives would be chosen in which President May expressed the opinion that the committeemen elected by the Union were not "com- petent." The Union insisted, in turn, that it was going to have the exclusive right to designate its own representatives . However, the Union agreed to provide for a three-man committee, one of whom would be designated as chairman, that each department would have a "designated Shop Steward" and that the Union would furnish the Company with the names of the union representatives and notify it of any changes in representatives. When the parties reached the seniority clause, the Union agreed to delete one subsection and agreement was reached on another subsection . However, other sub- sections were not agreed to with the question of department seniority versus plant seniority being one which was discussed a number of times and about which no agree- ment was ever reached. However, the Union understood that the Company agreed' to post a plantwide seniority list and to keep and make available to the Union- but not to post-departmental seniority lists. The question of reduction and recall and other issues more or less related to, seniority such as the lines of progression , the right to "bump" less senior employ- ees, and perhaps job bidding for permanent vacancies were discussed and the dis- agreements on all or most of these issues appear to have centered primarily around the die and/or die repair shop employees. These employees, apparently, are the Company's most highly skilled and highest paid employees and, according to May, the other employees consider these to be the "elite" places to work. Agreement was; reached on the reduction and recall provision but lines of progression , the right to "bump," particularly by supervisors, and job bidding remained in issue at the end of the third meeting. On job bidding, the Company wanted the personnel' manager left free to "canvass" all available employees . (The Union's proposal on. "bumping" required that the employee not only have seniority but the "ability and qualifications to immediately perform the work.") On at least one occasion, White went into the die and/or repair shop to familiarize himself with the work per- formed by the men in the various classifications in those departments. At the third meeting (January 22), President May said that he understood that Union Representative White had called the Federal Mediation Service (or perhaps the National Labor Relations Board) and that if the Union was going to strike, it should go ahead and do so and not waste so much time in negotiations. White explained that he undersood that he was under a duty to notify the Mediation Service that the parties were negotiating and that the Union hoped that there would be no strike. The meeting on February 2 began with a discussion of the overtime provision in the Union's proposed contract. Many of the subsections were agreed to quickly while others, such as the overtime rate for Sunday, were not agreed to. (Of course, overtime pay is governed to a considerable degree by the Fair Labor Standards. Act.) The call-in and reporting pay clause, which obligated the Company to pay call-in pay, was agreed to as were the ones headed health and safety and jury pay." The chief question in dispute concerning paid holidays was the number with. "The Union's proposal on health and safety is stated generally and does not appear to contain much that is controversial except perhaps the Company's obligation to pay an em- ployee injured on the job for the remainder of the shift and the right of an employee to report conditions which he regards as unsafe to his foreman and to have the shop steward present "if necessary ." There is no evidence about the number of employees who had been-'. called to serve on juries in the past or the probability that they would be called for such. duty in the future. MAY ALUMINUM, INC. 581 the Union requesting seven and the Company offering only five, the number cur- rently granted. However, this was regarded as a monetary clause and serious dis- cussion was deferred in line with the agreement reached early in the negotiations. The Company requested that the union label clause be deleted and the Union agreed. Vacations were also discussed and the Company said that it would study the plan set forth in the Union's proposed contract and would submit a plan of its own. The Union, in turn, agreed to submit a new clause on vacation scheduling. May said that he preferred the clause on foremen working contained in the Hous- ton contract with the Machinists. He also said that he wished to "clear" other clauses with his attorney. As the parties were leaving, President May stated that the Company had dis- continued giving raises and White commented that by doing so the Company had saved considerable money. (See infra.) At the February 24 and 26 and March 1 meetings, the parties continued through the rest of the Union's proposed contract, clause by clause. The Company would not agree that seniority would continue to accumulate during leaves of absence on union business and would not agree that the Union, as well as the Company, would have to approve a leave of absence to work elsewhere. There was considerable dis- cussion and no agreement about the Union's proposal that a foreman should not be permitted to "bump," in the case of a layoff, a unit employee and the Union's request that a limit be placed on the number of part-time employees. There was some disagreement and some agreement on the Union's proposal with respect to temporary transfers. The Company asked for and the Union agreed to a change of wording in one of the subsections under discipline and discharge. The Company agreed to notify the Union if an employee was disciplined or discharged but refused to agree to tell the Union the reason for its action . The only serious disagreement about the Union 's insurance proposal arose because it provided for dependents' insurance.12 May pointed out that dependents ' insurance would mean that employees with dependents would receive greater benefits than those without dependents and also commented that an insurance provision would benefit the doctors primarily because he understood that the employees did not pay their medical bills anyway 13 May wanted to discuss the management rights, no strike-no lockout, and new processes clauses with his attorney and indicated that he might submit counterproposals on these subjects. On March 5, it was agreed that any agreement would run for 2 years although there was some disagreement then and later about the effective dates. The chief subject discussed was the die-shop classifications, the die-shop foreman was called in, and White was taken on a tour of that department or those departments. The Company submitted a die-shop job classification chart which was agreed to as a substitute for the classifications set forth in Exhibit A to the Union's proposed contract. Although the chart did not contain any wage rates , there was a discussion of the die and die repair shop rates. According to May, the Company had at the meeting a list of the employees in those shops, with the dates they were hired, their starting rates and their present rates and a statement that the rates were higher than those proposed by the Union. May stated that the list was "spread out on top of my desk" and that he was "sure" it was shown to White. He added, however, "Whether it was handed to him or he took it in his hands, I don't know." On the other hand, Local President McElroy testified that he had never seen the list. McElroy worked in the die shop and would be likely to remember a document which concerned his department and on which his name appeared. Moreover, much of his testimony sup- ported rather than negated company contentions and his demeanor convinced me that he was a careful and truthful witness. Accordingly , I conclude that the list was not given to the union representatives for examination and study. May still refused to agree that jobs in the die shops be open for bidding and there was some disagreement about the truckdriver or drivers . The latter, May contended, drove leased equipment and the lease required that they be fully quali- fied. He also argued that a driver was a company representative because of his con- tact with customers and had to be "hand-picked." Otherwise, May said, he would make the driver (deliveryman) a salaried employee and "take him out of the 12 It appears that this was the only material difference between the Union's proposal and the Company's present plan. In any event, there is no evidence that the Company offered a plan which provided greater benefits than the employees were presently receiving 13 Alay testified that the Company 's position on insurance was not based on the latter fact and that his remark to this effect was not meant to be taken seriously. 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union." 14 White answered that if May took the man out of the unit, "we would have a pretty bad fight on our hands" because, in his opinion, this would be "con- trary to law," i.e., May could not make hourly employees monthly employees, "without the agreement of the Union." By the close of the March 5 meeting, all of the nonmoney clauses had been discussed and, as indicated above, agreement had been reached on a number of them. On March 5, the parties started through the Union's proposed contract again and when checkoff was reached, President May said he wanted to "trade it" but when White said, "All right. Let's trade. Let's get it all straightened out and agreed to," May said he did not want "to trade it at this time." The Company offered the Union two counterproposals on vacations leaving it up to the Union to decide' which it preferred. Although it is not entirely clear, it may be that both counterproposals would have meant increased vacation benefits.15 The Union said it would consider the proposals. Either on March 22, or more probably on March 25, the right of foremen to "bump" and part-time employees were discussed again. Early in the March 25 meeting, White suggested that the "whole thing" be "put on the table" so that the parties could see what they had. Then, maybe the Union could "give in on this" and the Company could "give on that" and the issues would be resolved. President May wanted to know if White was ready to go into the money items and the latter said "yes" that they should stop the "cat and mouse" game. The Company repeated its alternate vacation plans; on insurance, Personnel Manager Burgess was asked to compile figures before the next meeting showing how much insurance cost the Company per man hour.16 The Company offered a 3-cent increase in the night shift differential but stated that the number of paid' holidays would remain the same. When the subject of wages was reached, President May said he would say "right damn quick" what he would do about wages and that he was "not going to do a damn thing. I told those people what I was going to pay them when they came to work here. That is what I am going to pay them. You told them you were going to do something else. Now, let's see you do it." As May put it at the hearing, "I think I went into the fact that we had made certain definite commitments" to the employees and "felt obligated" to live up to them. According to May, "They tried to get a raise out of me and I did not tell them why only that we were not prepared to give any." White gave some argument about why he thought there should be increases but May said "no," that he had stated what he was going to do. McElroy testified without denial that White asked if May would be willing to have the jobs evaluated by an arbitrator and May said no, that he would evaluate his own jobs. White told May that he "was hoping that we could settle this without a fight" but "Apparently we can't." He then proposed to "call on Mediation." May replied that he did not care to have a mediator, that he was negotiating with White and McElroy. However, when White asked if May was refusing to meet with a mediator, May said that he was not. F. The March 30 increases A few hours after the March 25 bargaining meeting, Union Representative White prepared a notice calling a special meeting on April 1 for the purpose of taking a strike vote. In White's words, he "handbilled the plant," also took two of the notices to Personnel Manager Burgess, asked Burgess to post them, and Burgess agreed to do so. On or about March 30, the Company notified about 90 employees (all of those who had failed to receive the 90-day raises since the previous October) that they were receiving their periodic increases . Some of the raises amounted to 21/2 cents and some to 5 cents an hour. The Company's letter, signed by Personnel Manager Burgess, to the employees read: You will recall that when you were hired, we told you that you would be given periodic raises in your job classifications. 14 Some of the discussion about delivery personnel took place at the March 9 meeting. 15 May seemed to be saying that either of the vacation offers would mean greater benefits but when Personnel Manager Burgess was asked if they would give the employees more, less, or about the same, be answered, "We would have to get into . . . specifics. It cer- tainly wouldn't be any less, I wouldn't think." 16 Personnel Manager Burgess testified that President May asked him to prepare some information on the cost of insurance, that he prepared it, but could not recall that it was given to the Union. There is no evidence that it was ever given the Union. MAY ALUMINUM, INC. 583 We have been unable to make wage adjustments during the period just past, because of the union organizational campaign. However, we feel that we should now fulfill our promise and continue our policy of periodic increases in job classifications. Your check for the work period ending March 28, 1965 will reflect a raise. On March 30, Burgess sent White a copy of the above letter. On March 31, Burgess prepared and posted the following notice: BULLETIN There has been a lot of talk about our employees going out on strike. We do not want to see this happen; however, we want you to know that an employer has the right to operate his plant if a strike is called. May Aluminum plans to continue operating this plant. We think you should know that replacements whom we hire will be perma- nent. Therefore, those employees who go out on strike and are replaced by other men will no longer be employees of May Aluminum. On April 2, the Union filed its first charge in the instant proceeding alleging that the Company, "Since on or about March 30" had refused to bargain in good faith with the Union by granting "a unilateral wage increase" to employees in the bar- gaining unit "after having refused during negotiations to grant any wage increases to such employees through the process of collective bargaining." On or about April 7, the Company wrote each employee who had received an increase the following letter and, on or about the same day, sent a copy to White: The Aluminum Workers International Union, Local 201, through their rep- resentative, Mr. Orion White, has filed an unfair labor practice charge against us for granting you the raises we promised you when you were employed and which you have been receiving since that date.11 Therefore, we must rescind this latest increase and will have to deduct the amount paid under this increase from your next check. We realize that this is rather ridiculous, but apparently the union is not going to permit us to keep our commitments to you without going to court. We do not have the time nor the money for this. On April 9, the Union filed- another charge alleging that the Company had refused to bargain in good faith by granting, on or about March 30, a unilateral wage increase and by thereafter rescinding the increases after having refused, dur- ing negotiations, to grant any wage increases. G. The testimony about whether the 90-day increases were discussed during the prestrike negotiations It is undisputed that the 90-day raises were-not resumed after the election in November 1964 and that none was given until March 30, 1965. The giving of the March increases and their cancellation after a charge was filed are alleged to have been unilateral actions by the Company. On the other hand, the Company argues, inter alia, that it had bargained about the increases, that an impasse had been reached, and that it therefore had the right to grant them. According to Union Representative White, the only time the periodic increases were mentioned was as the parties were leaving the February 2 meeting, the fourth bargaining session, and approximately 3 months before the strike. White said that as they were leaving the meeting, President May commented that the Company had, "discontinued" giving the raises it had given in the past and that he [White] replied that, by doing so, the Company had saved a considerable amount of money. White insisted that the Company's policy with respect to periodic increases was never explained and that President May never said that he wanted to start giving raises again. Local President McElroy, who attended all of the prestrike meetings, consistently denied, no matter how the question was put, that the Company ever mentioned the periodic increases and that it ever said it wanted to give them. McElroy, who worked in the die shop to which the periodic raise policy did not apply, testified that he knew nothing about periodic raises and that there was no discussion about "As stated supra, it is undisputed that no 90-day increases had been given since late October or early November 1964. 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the fact that the die men were hired and paid differently from the other employees. He said that he did not hear White 's comment about saving money. Personnel Manager Burgess, a witness for Respondent, testified that he could say definitely that the raises were discussed twice before the strike . The first time, he said, was in early March (probably March 5 ) and the second time was on March 25, the last meeting before the strike . In Burgess' words: as far as I can recall , the first time it was brought up was when we were discussing in one meeting classifications . I recall that I, personally, was going over all the classifications in every department . . . for instance, in the Extru- sion Department, I was saying that our classification is puller, stretcher helper, finish saw helper and finish saw operator being our first classification, and that was from $1 .27/ to $1 .35 . . . . I went through this on very department that we had. . when I gave the classifications ... I would give the rates there, and Mr. May says that we were giving these two and a half cent raises every ninety days, that we promised the people and ... the company felt obligated to give them, but that we were afraid to because of possible unfair labor [practice] charges. And Mr. White just laughed and said , "Well, see, we are saving you a little money." 18 However, when Burgess was asked on cross-examination to state what was said about the 90-day raises at the early March meeting , he did not refer to them explicitly, stating instead: Well, I was going over the classifications of each of our departments, and I was pointing out that certain jobs represented certain classifications and giv- ing the spread . . . in that classification . I did this for every department that we had. When Burgess was asked if that was all that was said, he answered: Pretty well . About that time was when Mr. May said that as we had promised these things he felt that we were obligated to give them and Mr. White again just laughed and said, "Well, we are saving you some money." At the March 25 meeting, Burgess said, the subject was "mainly . . . economic factors" and this brought up job classifications and the money that went with them. According to Burgess , May said that the Company would "stay" with its present policy and when White asked if that meant that the Company was not going to give raises, May replied, "No, I didn't say that .... Our present policy calls for periodic increases." 19 In an affidavit given by Burgess in connection with charges filed by the Com- pany against the Union (see infra), Burgess said nothing about White having asked if May's statement meant that there would be no raises and said nothing about May having said that the present policy was to give raises. May was the General Counsel 's lead-off witness and at that time testified that he talked to the Union "several times" about wanting to go back and give the raises and that the Union "insisted" that this not be done. Later on, May said that White "was not too committal" about whether or not the Company could give the increases but that he "just wasn't in favor of it. I don't know he ever got too excited one way or another," that White never told him "right out not to give them" but let the Company know he did not want them given . When asked the date or dates on which the subject came up, May said that it was "two or three meetings" before the March raises were given . At another point, May testified that the subject was brought up at the last few meetings before the strike, i.e., at the March sessions, and added , "I think we finally told [White ] we were going ahead and give them." Thereafter, as a witness for Respondent , May testified that he told the Union "exactly what our policy had been , and we were going to go ahead and give them, that we felt obligated , as we had told them on various occasions . Dates, as a rule, is Although Local President McElroy testified that lie did not hear White make any such remark , President May, as well as Burgess , agreed that White made a comment to this effect v On cross-examination , Burgess added that May said that he had told the employees what he was going to give them and that is what they were going to get. MAY ALUMINUM, INC. 585 I cannot tell you, but I would say at least a half a dozen times or more we insisted that we go ahead and be permitted to give them." May said that he knew very definitely that one of the occasions was the March 25 meeting, the last meet- ing before the strike, but that he could not tell the other dates. It happened, May estimated, "three or four times, four or five times, maybe, I would say four or five times it happened before the strike , during the strike, and after the strike," adding that he thought the subject came up every time seniority and job classifications were discussed . On cross-examination , May estimated that the subject was discussed "five to maybe seven, maybe eight" times and four or five of these times were before the strike. When the question was repeated, May answered that the subject was discussed "from five to maybe seven or eight" times before the strike. However, the only date he could recall at that time was March 5 and he recalled that date because it was on a document (which contains no wage rates) which was given the Union that day. Still later, May said that he believed that the subject was discussed "at the very first meeting," i.e., on January 6. May also stated that he "would say" that the periodic raises were brought up everytime anything came up pertaining to money, that every opportunity we had we brought it up because we were darn sure we were going to bring it up." May explained that he was "very definite" in bringing it up in "several meetings" "Because it was my understanding that if we negotiated on something we always intended, I would say, to go back and give these people what they had been promised, what we were committed to give them. It was my understanding that if we negotiated on something , whether or not we agreed to it, we could go ahead and do it without any danger of unfair labor prac- tice charges, so we were very, very, very sure to bring it up on several occasions and discuss it." There is no claim that a written statement of the policy was ever given the Union and May's very brief, prestrike notes contain no reference to 90-day raises. His notes about the March 25 meeting, the last one before the strike, state only that the Company's position on wages was "the present" rate although his notes about a meeting after the March raises were given and after the charge was filed, do refer to the 90-day raises. Indeed, the information was not furnished even after the Union's specific request in June. Moreover, an examination of the Union's proposed contract and the generally consistent testimony concerning the order in which the sections were discussed dis- closes that the logical place for the Company to mention the 2 /-cent increases for the first time was at the January 20 meeting when it agreed to a 30-day probation- ary period. By agreeing to the reduction of the probationary period from 45 to 30 days, it would seem that the employees would receive their first increase and probably all subsequent increases 15 days earlier than under the current practice. Yet neither May nor Burgess claimed that the periodic increases were mentioned at the time agreement was reached on a shorter probationary period. It is also significant that the Company's March 30 letter to the Union enclosing a copy of its letter to the employees was a two-line note signed by Personnel Man- ager Burgess which does not refer to discussions about the increases and does not claim that the Company felt free to act because an impasse had been reached on the subject.20 If, as claimed by the Company , it was aware from the beginning that it could act only after a bargaining impasse and if it was in fact acting because an impasse had been reached, I believe that the Company's letter to the Union would have set forth the facts upon which it was relying to justify its action . Instead, the only explanation given by the Company was its statement in its letter to the employees that the increases were withheld "because of the union's organizational campaign" but that the Company now felt it should fulfill its promises .. . Furthermore, the Company misstated the facts on the subject of the raises. Although it is undisputed that the Company had given no 90 -day raises since late October 1964, its April 7 letter to the employees rescinding the raises referred, inter alia, to the raises we promised when you were employed and which you have been receiving since that date. (Emphasis supplied.) Finally, in an affidavit given by May in support of a charge filed by the Com- pany against the Union based on the latter's conduct in connection with the strike which began on April 8, May stated "All money items were deferred and never 24 Of course, the Company 's letter to the employees contained no reference to the negotia- tions but , instead, explained that the raises had been withheld "because of the union's organizational campaign." 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussed" and "at our last meeting [March 25] we discussed wages for about fifteen minutes." 21 At the hearing, May agreed that the latter statement was true "if you want to pin it right down to the actual wages. We spent an hour or so dis- cussing all the costs, but the wages, the increase, blanket increase , was very, very short." 22 Respondent objected vigorously to the introduction of May's affidavit and one by Burgess on the ground that they were given in connection with a charge the Company filed against the Union, that they were given because the Board had told the Company that it would not investigate the Company's charges without support- ing evidence from the Company, and that the Board agent agreed that the affidavits would be used only in connection with the Company's case against the Union. The General Counsel stated that the Board agent who took the affidavits was on vaca- tion and unavailable as a witness and that, in any event, he had no authority to make any such agreement. Although the Company 's attorney stated, at least in connection with May's affi- davit, that he was prepared to testify to "what I think the agreement was," he did not testify on the subject although he did testify about another matter. And May did not testify to any such agreement although he made a number of other com- plaints about the taking of the affidavit.23 I note that there are a number of cor- rections in the affidavit but none was made in connection with the statement about the wage discussions. Concededly, the subject under investigation determines the matters set forth in an affidavit and if the charges are different, the details in an affidavit could well be different from later testimony even if the general subject was the same . However, the statements in May's affidavit, quoted above, are broad , factual statements con- cerning the negotiations and not details which can be explained by the fact that it was taken in connection with the Company's charge against the Union. Either the periodic increases were discussed over and over, as May testified , or "All money items were deferred and never discussed" until the March 25 meeting and then only briefly. Union Representative White, much of whose testimony is undisputed , impressed me as a reliable witness. Local President McElroy, who was a die-shop employee, was not employed by May at the time of the hearing and was no longer associated with the Local . It does not appear that he was even a union member and he did not appear to be a "professional" union man. As noted previously, much of his testimony was favorable to the Company and I believe that he was a careful, truthful witness who was telling what happened to the best of his ability without regard to whether his testimony helped the Union of the Company. In determining whether or not the increases were discussed , I have considered particularly the numerous and serious internal inconsistencies in May's testimony on the subject and the conflicts between May 's and Burgess' testimony on the same subject set forth previously. As demonstrated above, nearly every time May testified about the discussions of the increases , he became more certain in his statements 21 The Regional Director refused to issue a complaint on those charges and his action was sustained on appeal. 23 Early in the hearing, May was asked the,following question and gave the following answer: Q. I believe there was a meeting on or about March 25 that the subject of wages was first discussed. Does that sound about right to you ? I believe this would be the last meeting before the strike began. A Right. (Emphasis supplied.) May's answer seems to indicate agreement that the subject of wages was discussed for the first time on March 25 but he may have been agreeing only to the last sentence of the question. zv May testified that he had an "awful time" getting the Board agent to write down what he said, that he made the agent correct the affidavit in several respects , and corrections appear on the face of the affidavit . May said that he gave three statements but the agent prepared only one, claiming that he did not hear the others. However , in May's words, "But finally then we got him to sit down and we gave him two more statements . And he in- cluded them in there more or less as we said them " May agreed that he did not submit his own draft, that he read the affidavit before signing it, and that the Company 's attorney was present. The affidavit was taken the day the strike ended and when the mediator was present. According to May, the agent would "rush in" between discussions with the mediator. MAY ALUMINUM, INC. 587 and the number of times the subject was discussed continued to rise until he finally would have it believed that the increases were mentioned at the very first meeting (January 6) and nearly every meeting thereafter prior to the strike. May, an intelli- gent and experienced business man, claimed that he was determined to bring up the subject of the increases so that he could eventually give them, even if the Union did not agree. Under these circumstances, I believe that if the subject had been dis- cussed, May would have been able to state exactly and, more importantly, con- sistently when the discussions occurred and would have been able to state in some detail what he said and what White said. For the foregoing reasons, I am convinced and find that the only reference to the increases in the negotiations up to and including those on March 25 was a passing remark made by May as the parties were leaving one of the meetings, probably in February. In my opinion, the discussions described by Respondent' s witnesses, including May's testimony that the Company stated that it wanted to give the raises, were "after thoughts" designed to justify the March 30 increases. However, it is clear that Union Representative White knew that the Company had been giving some increases based upon days worked, that he also knew that one employee had failed to get such a raise in December 1964, that he told the employee the Company could not give raises, and that he did not bring up either subject dur- ing the negotiations. Employee Jesse Lopez, Jr., a witness for the General Counsel, testified that about 2 weeks to a month after the election, i.e., sometime in Decem- ber, he asked his foreman about his 21/2-cent raise and the foreman said he would talk to Personnel Manager Burgess about it. A few days later, the supervisor told Lopez that the Company could not give him "any raise because it was against the rules or the law of the Company or the Union, they could not give [Lopez] a raise until they [made] a settlement, and an agreement." On some undisclosed date, but probably not long after his talks with his supervisor, Lopez told White that he had not got his expected raise, White asked why, and he told White about the "law." White then told Lopez, "They were right. They could not give a raise." White admitted that he had heard from the employees that some of them had been given raises and some of them had received no increases and felt that raises were "overdue." He denied that he discussed the subject with the employees or asked them for "details," There is no evidence that the Company ever told White or that he knew that the Company had continued to give the 45-day increases and there is no evidence that the Company was aware of White's statement to Lopez until the hearing. According to May, "Every one of the union officials" was from the die shops and "Actually, they knew nothing about the rest of the operation in the plant." May also stated that he did not think that Local President McElroy made any comment on the conditions in the plant generally "because I don't think he knew what was going on outside of his own little bailiwick." In support of its contention that bargaining negotiations generally and with respect to the periodic increases in particular had reached an impasse on March 25, Company Attorney Crowther testified that Federal Mediator Ray told him on March 26 that an "impasse" had been reported to him and that Union Representa- tive White had asked for mediation 24 When asked if he told Ray that there was an impasse in negotiations, White answered, "More or less. I have an idea I did. I felt like I needed his services." But whatever words White may have used when he talked to Ray or in the course of the negotiations, it is undisputed that he con- tinued to seek further meetings with the Company and four more were held at the Union's request. As May put it at the hearing, White "said he felt we were at an impasse and the Federal Mediator could help [us] reach an agreement, I guess." Moreover, there is no evidence that the Company told the Union on March 25 or on any other date that it believed that bargaining had reached an impasse and that it would be futile to meet again. At the hearing, May stated that he thought that the Union was "awful stupid" to strike when negotiations were going on, when "mediation was coming up," and when he "thought" the parties were "making progress all along, with the exceptions of a couple of items." As previously noted, although May asserted that he made sure that the increases were discussed because he understood that he could then give them even if the u It was stipulated that if called as a witness, Ray would testify to his name, address, and his occupation but he would refuse to testify further "in accordance with the policy of the Federal Mediation and Conciliation Service and the laws of the United States." 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union did not agree, the Company made no reference to discussions or a bargain- ing impasse on periodic increases in its March 30 letter to the Union enclosing a copy of the company-employee letter concerning the granting of the increases. On the contrary the Company's letter to the Union was nothing more than a routine, covering letter. Impasse can be used loosely to mean that no progress is being made or that no agreement has been reached. Neither White nor Local President McElroy is a lawyer and the negotiations were the first in which White had participated in any capacity other than an officer of a local union. His lack of legal knowledge, even on labor matters, is disclosed by his statement at the first meeting, testified to by Per- sonnel Manager Burgess, that the supervisors had been questioning the employees but that he knew that the Company could not control their tongues. McElroy was a rank-and-file employee and it does not appear that he had engaged in company- union negotiations in the past. More importantly, the question of whether or not an "impasse" has been reached which justifies the employer's subsequent actions is not merely a factual question. It also requires a finding that the impasse followed good-faith bargaining. Cf. Industrial Union of Marine and Shipbuilding Workers v. N.L.R.B., 320 F.2d 615, 621, footnote 6 (C.A. 3), cert. denied 375 U.S. 984. G. The strike which began on April 8 1. The decision to strike The Union held employee meetings at 10 a.m. and 8 p.m. on April 1. A total of at least 90 employees attended the meetings which were called to order by Local President McElroy. Union Representative White reported on the negotiations gen- erally and told the men that during the March 25 meeting President May had com- pletely refused to negotiate any wages, that White had then received a notice that the Company had given raises and, to him, this constituted an unfair labor practice. He also expressed the opinion that the only way to get the Company to bargain in good faith, as least on the subject of wages, was to call a strike. White also told the employees that with respect to wages, May was just going to run the plant exactly as he had been running it and that he interpreted the wage increase announcement to mean, "I don't have to bargain with the Union; I will go around and give raises." Local President McElroy also described what had gone on during negotiations. He reported that the Union had asked what the Company was going to do about "cost items" and May had said "nothing," that the Company had told the men, when they were hired, what it would pay them, that White had made a lot of promises to the employees and he could go out and get tho things he had promised . McElroy also told the employees that the Union had asked for a job evaluation but that May had refused, saying that he would evaluate his own jobs. McElroy also said that May had not wanted to "sit down with a mediator and with [the Union] to try to work something out." In addition , McElroy referred to the raises that some of the employees had received saying that the Union had no advance notice of the increases and that, in the Union 's view, the Company was "just more or less refus- ing to recognize" the Union. McElroy told the employees that neither he nor White had been told what promises the Company had made, that this meant to him that the Company was "just denying to go through the Union ," that May "kind of threw down the gaunt- let and said he wasn't going to raise the money items." McElroy charged that May had "decided to go round the Union , they weren't going to have anything to do with the Union at all . . . that the Company was going to deal individually" with the employees, i.e., by saying that the men had been told what they would be paid and that was what they were going to be paid . McElroy characterized May's posi- tion as a "direct challenge to the Union ." As McElroy put it at the hearing, "Mr. White and I saw this thing pretty closely together, that the Company was more or less refusing to bargain in good faith on the wages, and that is what he said to the- membership." 25 25A representative of the Brewery Workers named Chandler was present and spoke at the evening meeting . Chandler was also outside the plant the morning the strike began. I do not credit testimony that Chandler was introduced as a representative of the Aluminum. Workers, the Union herein. MAY ALUMINUM,' INC. ^- i 589 A motion was made to give the executive board the right to set the date of a strike, if one was called, and it carried' unanimously. A writen strike vote was taken and the vote was 88 to 2 in favor of striking. On the afternoon of March 25, the date of the last company- union meeting before the strike, White called the Mediation Service and asked that arrangements be made for a meeting with the Company as quickly as possible. White was told on April 2 that there was a scheduling problem, that the Company's attorney was involved in litigation. (No attorneys had been present at any of the previous meet- ings. ) On the morning of April 7, White notified that a meeting had been sched- uled for April 15. White asked that the Company be made aware of the seriousness of the situation, stated that the Union had to take some kind of action, that it could not wait 3 weeks for another meeting (March 25 to April 15) and requested that efforts be made to get a meeting before April 15. On the afternoon of April 7, Local President McElroy called a meeting of the Union's executive board for 6 p.m. White called the International and was told that it would not sanction a strike unless White asked the Company for a meeting the next day and "tried to get something settled." White called Personnel Manager Burgess and explained that the Union would have to get the "thing" settled the next day or it would take the employees out on strike on Friday, April 9. Burgess said that he would talk to President May and, shortly thereafter, Burgess notified White that the Company could not meet the next day because its attorney could not be present. There is no evidence that the Company suggested that it might be able to meet before April 15, the meeting date arranged by the Mediation Service. White told Burgess that a strike would prob- ably begin the next day. White explained the situation to the Union's executive board when it met at 6 p.m. and a formal motion to strike was made and the Board voted to strike the following morning. A picket line appeared at the plant at about 6: 30 a.m. on April 8. 2. Company statements the first day of the strike About 6:50 a.m. on April 8, Local President McElroy told Die Shop Supervisor James Boren that he wanted to take his tools out and Boren said "O.K." but that they would have to be checked. As McElroy was collecting his tools, Boren came by and said that if the men took their tools out, they "couldn't come back." Boren, a witness for Respondent, testified that he called President May about checking the tools and May told him that he should tell the men that "if they took their boxes out that they would not be bringing them back" and that he [Boren] told the men "exactly what [he] had been instructed to tell them." 26 Shortly thereafter, President May came into the shop and said to the group, "If you take your tools out you are not coming back . . Just go ahead and get out anyway, especially you," the latter remark being directed at Local President McElroy. According to Emmett Coufal, May said that "Anybody who takes his tools out isn't coming back." About 5 minutes before 7 a.m., President May went outside the plant and spoke to some of the employes standing along the public road in front of the plant. Employee Joskie Jenkins testified that May said that the men who did not work that morning "were fired." White was also present and heard May say that it was 5 minutes before 7, followed by some words which White could not "quite hear." White then heard May say, "You have had it. You are through" and saw May make a gesture with his hand.27 The only serious conflict in the evidence concerning the above incidents is May's original claim that he told the men that they would be "replaced." However, he later admitted that he did not know whether or not he used the word "replaced." I note that Boren's testimony establishes that May did not use the word "replaced" when telling Boren what to tell the men. In view of the foregoing facts, I do not credit May's testimony that he merely warned the men that those who went on strike would be replaced. 20 Respondent admits that Boren is a supervisor within the meaning of Section 2(11) of the Act. n It may be that Jenkins and White heard different statements or it may be that when Jenkins quoted May as saying that the men who did not go to work were "fired," he was, without realizing it, not using the word used by May but his own interpretation of May's words ; I.e., that the men were "through." 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May's original testimony on this subject indicates a willingness to testify to state- ments which he did not make but which he believed, at the time of the hearing, would have been permissible. May's willingness to testify contrary to fact in an, effort to avoid an unfair labor practice finding is one of the reasons why I have discredited other portions of his testimony. White laughed at a remark made by May and the latter asked if White saw "something funny around here?" White answered, "Yes, I see something funny around here. Now, you asked for a fight and you have one." May replied only, "You are goddam right I did." 28 3. The end of the strike Union Representative White presided at a union meeting on April 22 29 White asked the employees for authority to handle the situation as he and an attorney saw fit and there was no objection. He did not mention the possibility of an uncon- ditional offer to return to work but he had stated on several occasions that, in order to be protected, the employees had to make an unconditional offer to return to work. At a company-union meeting on April 27, the Union read and then handed the Company the following letter signed by Union Representative White: I have been authorized by the membership of Local 201, A.W.I.U. and by all the striking employees of May Aluminum, Inc. to make an unconditional offer to return to work for each individual employee. I therefore make this unconditional offer for each striking individual employee to return to work at May Aluminum, Inc. Company Attorney Crowther asked if White had the authority to make the offer on behalf of each individual employee and Union Attorney Crawford answered in the affirmative. Company Attorney Crowther said that the only "bona fide" offer to return to work would be made when the strikers reported to the plant. May replied that he would reinstate all of the men who had not been replaced but added, "I will not put any of the die repairmen back that sabotaged us, and I will not put anybody to work that is guilty of violence on the picket line or making threats on the picket line 30 (All of the Union's officers worked in one of the die shops.) There is no evidence that there was any picket line violence or threats. The Union requested a list of the employees just before the strike, their job clas- sifications, rates of pay, and dates of hire. One of the reasons for the request was to enable the Union to determine whether the strikers were being returned to their former, jobs. According to Personnel Manager Burgess, the Company replied that the Union ought to know who was on strike. Burgess said that he would prepare the list as quickly as possible, did prepare the information, and gave it to the com- pany attorney 2 or 3 weeks later. A list of names, rates of pay, dates of hire, but not job classifications, was given the Union about July 1; i.e., a little more than 2 months after'the request and a few days before the hearing opened. At the company-union meeting on April 27, the Union agreed to make every possible effort to tell the strikers that the strike was over and to return to the plant and see Personnel Manager Burgess. White spoke on the radio and perhaps put a notice in the local newspaper. He gave the same instructions to employees who came to the motel where he was staying and those who attended a union meeting 2 nights later. Before 6 p.m. on April 27, the Company handed the following telegram to West- ern Union at El Campo and it was sent to 128 employees; i.e., all or most of the employees who had not worked during the strike: 31 We have been told that the strike is over. Please report in person to Ralph Burgess, personnel manager, by 3 p.m. on Thursday, April 29, 1965, or we will assume that you do not want to be reinstated. 29 In its brief, the Company quotes White's remark but not May's As noted supra, McElroy had found a job elsewhere and had resigned as president of the Local. The vice president of the Local was late arriving at the meeting However, the secretary-treasurer was present when the meeting began 30 The above findings are based on White's credited testimony. May's contrary testimony is discredited. 'a There Is Insufficient evidence in the record to justify a finding that the Union knew how the telegram would be worded or that it even knew that notification would be by tele- gram. White indicated at one point that he understood the strikers would be notified by registered letter. MAY ALUMINUM, INC. 591 Personnel Manager Burgess testified that when the men came in, he asked, them if they wanted to come back to work and they said that they did. He told them that he had not had time to determine what jobs were still available, that he would have that information on Friday (April 30) and to see or call him on Friday and he would tell them if a job was available and, if so, what shift to report to on Monday, May 3. Most of the strikers did talk to Burgess or some other company representative and were fully reinstated. According to the Company, the jobs of a comparatively small number of strikers had been filled and they were told that they would be offered employment as new employees when jobs became available. On May 5, 2 days after most of the strikers returned to work, the Company sent a second telegram to 20 strikers; i.e., most of those who had not been reinstated. It was signed by Personnel Manager Burgess and read: Regards reemployment with May Aluminum. Please report for work eleven p.m. May 6, 1965. If unable, contact me in person no later than three p.m. Friday, May 7, 1965 or we will assume you are not interested in employment at May Aluminum or elsewhere at this time.32 The men who received the May 5 telegrams and reported as instructed were hired as new employees on or about May 6; i.e., they were assigned to the ship- ping department at the starting rate of $1.25 per hour and without seniority or any previously accumulated benefits. Others were offered employment as new employ- ees during the course of the hearing. The strikers whose reinstatement is in issue are listed infra. H. The events in the course of the strike 1. The company-union meetings during the strike Two company-union meetings were held in the course of the strike. At the first, on April 15, the Company was represented by President May and Attorneys Crow- ther, Willis, and Duckett. Union Representative White and Local President McElroy again - represented the Union. The Mediation Service was representd by a Mr. Kincaid. At Kincaid's suggestion, the parties started going through the proposed contract again to determine which clauses had been agreed to and which remained in dis- pute. When the checkoff clause was reached, May said that the answer was a "flat no." White pointed out that, at an earlier meeting, May had suggested a "trade" and had offered a checkoff if the employees paid the cost. May did not deny White's statement but repeated that there would be no checkoff. May stated that he had not agreed to departmental seniority and White reminded him that he had agreed to make departmental seniority lists available to the Union and asked if May, nonetheless, was saying that there was no agreement on depart- mental seniority. May answered that there had been no agreement and it was dis- covered that at least some of the hours of work section were still in dispute. May, on the other hand, understood that the Union had agreed to provisions which White said he had not agreed to. The parties met again on April 20. This time the Company was represented by President May, Attorney Crowther, and Personnel Manager Burgess. The Union was represented only by White. Willis Ray was present from the Mediation Service. The parties "started in where [they] left off" on April 15 and went through the rest of the Union's proposed contract. A question arose about the effective dates if all terms were agreed upon and it appeared that there might still be some dispute about the lines of progression in the die shop. The Company submitted a number of counterproposals. Some of them do not seem to differ materially from clauses submitted by the Union. However, others differed materially. For example, the Company proposed the following clauses: Management Rights The Company retains the right to manage the plant and direct the working force, subject only to the terms of this agreement. Unless this agreement spe- 89 Some of the telegrams directed the recipients to report to work at 3 p.m. on May 6. 592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cifically restricts the right of the Company to act in a particular regard, the Company shall be free to take such action as seems appropriate. The exclusive rights of management shall include, but not be limited to, the following: The right to plan, direct, schedule and control the plant operations; to assign and schedule work to employees; to transfer temporarily or permanently; to hire; to promote; to demote, discipline, suspend or discharge; to establish and fix the daily and/or weekly schedule of hours of work of the working force, including shift beginnings; to make and enforce shop rules; to make and enforce safety rules and practices; to carry out the management of the plant; to relieve employees from duty because of lack of work or any other legitimate reason; to introduce new production methods, materials or facilities, or to change existing production methods, materials or facilities; and to subcontract or to terminate any or all of the production operations of the Company's El Campo plant. Sub-contracting The Union recognizes the right of the Company to make subcontracts for the performance of work normally performed by employees who are members of the bargaining unit covered by this agreement. The Union recognizes further that the Company shall have the right to sub-contract such work without the necessity of bargaining with the Union, so long as the Company's decision is made in the exercise of its business judgment. Seniority If an employee is promoted to Foreman out of the bargaining unit covered by this agreement, he shall retain his seniority in the unit indefinitely and con- tinue to accumulate plant seniority throughout the term of his employment as Foreman. If a Foreman is laid off as a supervisor, he shall have the right to claim such job in the bargaining unit to which he may be entitled by virtue of his accumulated seniority. Discipline and Discharge It is understood that one of the rights of the Company shall be to demote, discipline, suspend or discharge for just cause. When an employee is disciplined or discharged under this section, the Union shall be given notice that such action has been taken. Any employee who desires to contest disciplinary action taken under this section must do so in writing within five (5) work days from the date of such discharge or disciplinary action. Any grievance filed under this provision shall be handled initially at Step 2 of The Grievance Procedure. New Processes Section 1. If, in the future, the Company places in operation materially different types of machinery, apparatus, equipment or new processes which necessitate the installation of new job classifications or the making of major changes in the present job classifications, the Company will establish wage rates for such new job classifications. It is understood that such new rates will be in proper relationship to the wage rates of other job classifications in the plant within thirty (30) days after such new or changed types of machinery, apparatus, equipment or new processes are placed in operation. In the event that no new rate is established, or in the event that the Union considers the newly established rate improper, the Union shall within thirty (30) days there- after file a complaint with the Company, and such complaint shall be processed initially in the third step of the regular grievance procedure. When the Com- pany has permanently set a rate for a new or changed job, or when such a rate has been determined by recourse to the grievance procedure, such rate shall be made effective as of the date the new or changed job was placed in operation. Section 2. It is understood that the provisions of this article are applicable only to the determination of rates and that this article in no way limits the i MAY ALUMINUM, INC. 593 right of the Company to place into operation materially different types of machinery, apparatus, equipment or new processes. Section 3 . Any experimental project operating over ninety (90) days shall be subject to rate establishment as provided in this article. 2. The State court action On or about April 19, the Deputy Sheriff of Wharton County , Texas, served papers on Union Representative White entitled - In the Matter of Perpetuating the Testimony of Orion D. White. The papers , which were issued by the clerk of the District Court of Wharton , sought to require White to give a deposition and in support of its petition the Company alleged that White, as an organizer for the Union, was responsible for damages and losses to the Company by making illegal statements and engaging in illegal acts which were responsible for the illegal strike and illegal picketing being conducted by the Union . It was also alleged that the Company "anticipated" that White had sought to cause a secondary boycott and had "caused to be published and circulated a false statement accusing the Company of violating the law." In addition to the taking of White's testimony , the petition sought to require him "to produce all books, papers, documents, notes, memorandum correspondence and so forth with any and all of the Company's employees in connection with such activities , strike, and picketing." There is no evidence that White's deposition was taken in fact or that he produced the documents described above. 1. The poststrike company-union meetings 1. The meeting on April 27 As stated supra, the picket line was withdrawn on April 27 and at a meeting that morning, the Union gave the Company a letter signed by Union Representative White in which he stated , infer alia, "I . . . make this unconditional offer for each striking individual employee to return to work . . At this meeting, the Union was represented by White and two attorneys , Mandell and Crawford . The Company was represented by President May and Attorney Crowther. Personnel Manager Burgess was present during part, but not all, of the meeting. A Federal mediator was also present and the meeting was longer than usual with one or more recesses. Union Attorney Crawford and President May "got into a pretty good argument" about wages and May stated , as he had done on March 25, that he "wasn 't going to give a damn cent increase " and that he "wasn't going to a damn thing except what he had done in the past." 33 May admittedly asserted that the Company would give a raise when it was "able" but when Crawford asked if May would be willing to submit that offer in writing, May replied, "Hell, no." Crawford asked several times if the Company was claiming "inability to pay" and May admitted , in effect, that he replied on one occasion that it was "none of [the Union's] goddam busi- ness." As he stated as the hearing, "I thought it was." 34 May admitted that on another occasion he said that he would not grant a wage increase but did not say why and at another point, May mentioned the Company 's competitive position. It was during this meeting that Union Attorney Crawford asked what percentage of the employees were in each pay range ; i.e., $1.25-$1.35 , $ 1.35-$1 .45, etc. The union representatives referred to the Company 's counterproposals on sub- contracting (supra) and pointed out that, if agreed to, they would mean that the Company would have the right to subcontract "the whole shebang" without notice and bargaining and to agree to such a clause would "be the same as decertifying" the Union . The Company answered that it was not going to contract all of the work but when White asked May to say so in writing, May refused. The discussion of subcontracting plans dealt with the work of the die and die repair men in particular and to some extent the foundry employees and the truck- a' When asked if he had said , "We won't pay you a damn cent ," May answered, "It's possible I don't know I don't have my notes with me " 84 May claimed that he said at one meeting that he was not claiming inability to pay but could not recall at which meeting he made this statement If May had made this state- ment, I believe that he would have been able to say , at least generally , when he did s. 25 7-5 51-6 7-v o f 16 O-3 9 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD drivers; i.e., the men in the delivery department.35 May claimed that the costs in the die and die repair shops had practically doubled, quoted some figures, and may have repeated his earlier remark that the die men had "sabotaged" him. May explained that the plan to subcontract some of this work would reduce the number of employees in those shops but that the shops would not be done away entirely. May testified that the number of men in the die shops had in fact been reduced by about 40 percent, partly because more dies were being purchased and the sup- plier was furnishing a man to keep them repaired. Union Representative White testified that the Union never agreed that the Company could make these changes.36 May stated, sarcastically, that because of Attorney Crawford's ability to sum up the situation, it was too bad that Crawford had not been presented at the earlier meetings. May also referred to White as a "jackass." Either at this meeting or the one on May 4, Attorneys Crowther and Mandell agreed to meet in Houston to try to work out an agreement on seniority and per- haps other matters still in dispute. 2. The meeting on May 4 At the May 4 meeting, the Union was represented by White and Attorney Craw- ford and the Company by May and Attorney Crowther. Burgess was present but perhaps not during all of the meeting. At the outset of the meeting, May made the "flat statement" that the Union did not represent the employees, told May that he was nothing but a labor "thug" who was in El Campo to build up his own "empire" and who enjoyed living at the local motel.37 White expressed resentment at May's remarks but the latter answered that he did not give a "damn" about White's reaction. Union Attorney Crawford "intervened" and made it plain that the Union was the representative of the employees. There was considerable discussion about the Company's liability to the strikers and the Union took the position that this was a matter governed by the Act and that it would insist that the strikers recover the entire amount to which they were entitled.38 Union Attorney Crawford and President May got into a heated discus- sion in which Crawford asked what century May thought he was living in and made other "derogatory" remarks about May. The record does not disclose what the other remarks were. When the subject of wages was raised, May repeated that he was not going to give a "damn" cent, that be had promised the employees what he was going to pay them, that neither this Union nor any other "damn" union was going to make a liar out of him. Later, May said, in a heated discussion with Crawford, "If I can't raise these people like I told them I was going to, I will . . . and bark like a fox." Crawford told May to give it a try. Crawford said that the employees were going to make less money after they voted for union representation than before because they would have to pay union dues and May stated that this had been the Company's "contention all the time." After a recess, May said he would increase the third shift premium by 3 cents and that he would consider giving a checkoff on a limited basis; i.e., that the checkoff would be revocable.39 a5 Although there is some conflict in the testimony about whether subcontracting, for example, was discussed at the April 27 or May 4 meeting, it is clear that the discussions took place at one of those meetings ; I e., after the strike ended. 36 Neither the charges nor the complaint contains allegations that the Company violated the Act by making the above changes ; i.e., without notice to and bargaining with the Union. as May testified that he pointed out at one meeting that no employee had been present at the recent negotiating sessions and that the Union had claimed that it was democrati- cally run 38 May testified that the Union asserted that it was not going to give up any of its legal rights and, in effect, said it was going to snake it as "damn rough" on the Company as it could He agreed that it was "possible" that the Union pointed out that the rights of the strikers were individual rights which the Union could not bargain away. May's answer was that the Union had claimed earlier that the employees ceased to have individual rights with respect to wages when they voted for union representation . When May was asked if he stated that be could not negotiate until be knew the Company 's liability with respect to the strikers, he answered, "I don't think that's correct." 39 It seems probable that both offers were repetitions of offers made previously . See supra. MAY ALUMINUM, INC. 595 The parties also discussed the fact that die-repair men Coufal, Mach, and Piep- per had returned to work as metal checkers and May said that "As of right now these [men] are in the Engineering Department." This department is not within the bargaining unit and Crawford characterized May's statement as a "unilateral act." May's position was that he had a right to move employees as he wished. Crawford insisted that such a transfer, i.e., removing employees from the unit, was a bargainable matter. May told Crawford that as "sure as hell" he was not going to negotiate with the Union about the removal of men, saying, "I have already moved these people into the Engineering Department." 40 As May put it at the hearing, it was his belief that the Company was free to shift a man "As long as we have no contract ." According to White, the Company and Union bar- gained about the transfer if bargaining consists of a statement by the Company of what it was going to do. The Union also mentioned the fact that the leadman in the die shop at the beginning of the strike had been told that he would have to come back as "strictly a die repairman." In May's words, he replied that the Company had constantly moved men out of the bargaining unit right along, such as moving them into the office, and made it clear that it intended to continue to do so.41 The Company handed the Union some more counterproposals but after looking them over, White commented that they amounted to little more than a restatement of matters which had been agreed to previously. Later on, Crawford commented that May had repeatedly referred to the contract between the Company and the Machinists in Houston and offered to take that con- tract and change the name of the union and the dates and agree to it. May started looking through the Houston contract and began pointing to things in it that he objected to and that would have to be changed, such as the checkoff provision and the rates of pay. Either in this connection or independently, a question was raised concerning the effective dates of the contract with the Company wanting one date and the Union another. Finally, Union Attorney Crawford commented that it seemed that the only thing the Union could do was to exercise its legal rights. 3. The meeting on June 23 At the Company's request, a meeting was held on June 23 with White and Attorney Crawford representing the Union and May and Attorney Crowther repre- senting the Company. Federal Mediator Ray was also present. A question had arisen about making a payment from the Company's profit-sharing plan and the Union agreed, in writing, that the payment could be made. May raised the question of giving the employees the promised, periodic raises. The Union would not agree to the payment of the raises and May said that they would be paid retroactively when a contract was signed. When the Union offered to discuss wages generally, May repeated that he was not granting a "damn penny" general increase . Other issues still in dispute, such as seniority and subcontracting, were mentioned but no new agreements were reached. The Company again offered a revocable dues checkoff and indicated that it might make further counterproposals. Union Attorney Crawford asked the Company to include an exact statement of the periodic wage "pattern." At the close of the meeting, Federal Mediator Ray told President May that the Union felt "at that time" that there was no need to meet again. to I do not credit May 's denial that he said that Coufal, Mach, and Piepper were in the engineering department "as of right now" and that, therefore, he did not have to bargain concerning their terms and conditions of employment . May conceded that the men were in fact assigned to the engineering department whereas they were hourly paid , unit employees before the strike and quoted himself as saying that men were constantly being either moved or promoted out of unit jobs, such as to jobs in the office , and that he had never bar- gained in the past about such matters and did not feel that he "had to here ." According to May, the men were given different jobs because "some" of their jobs were filled. The question, however, is not their job titles but Respondent's announcement that their job classifications were no longer in the unit u At one point, May testified , "we hired a man from Dallas to take over as leaderman" and a few minutes later stated that the Company did not have a die leaderman after the strike. 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, at the close of the last bargaining session, tentative agreement had been reached on most of the noneconomic clauses except the various aspects of seniority, checkoff, subcontracting, plant closure, and management rights generally. No agree- ment had been reached on any of the major money items; i.e., wages, holidays, insurance, and vacations. At the hearing, May asserted that there was "evidence enough" that the Com- pany did not have the time and money to spend dealing with a union, that negotia- tions were "very, very, very costly" in time "spent and wasted" and that he would not have gone through the negotiations for ten thousand dollars. May claimed that the Company changed its position on a "lot of things," that he "felt" that the Company "had given an awful lot," that it "had given until it hurt" but that he still had not found one thing in any of the testimony where [the Union] ever gave one thing." (Cf. May's earlier statement with respect to economic matters, at least, "I would say the give was very likely more or less equal between the Union's position and [the] position we took.") At another point, May said that the Company had "agreed to practically everything [the Union] asked us." May admitted that he had "used language" indicating his belief that the Union was not "overly interested in the employees," that he had used "many times" the example of an insurance agent who is "not worried particularly" about a policy- holder's wife and children but is interested only in getting his commission. When Union Attorney Crawford asked if the Union had not stated, in connection with subcontracting, that if the Company would explain its costs, the Union would try to help reduce them, May answered, "Oh, I think you made some kind of -a crack along those lines. I never considered it very seriously." He then added, "Most of the things you brought up I didn't consider very seriously." May also admitted that once, when he was discussing the negotiations with McDermott, the Company's former personnel manager, he told McDermott: that it's too bad that I had never been able to sit down and talk to Mr. White where I could talk to him and go over some things that we had that [he] did not know, that we did not care to discuss in the negotiations . . . . I felt that if I could have sat down and talked to [White] he would know more about our position as individuals, not to be brought out in negotiations, that I didn't expect it to be brought out here ... . J. The Company's statements to employee Cisneros John N. Cisneros was a press operator before the strike and his base rate of pay was $1.40 an hour. He served on the picket line and was fully reinstated. According to Cisneros, about 3 weeks or a month after the strike ended, i.e., sometime in May, Supervisor Lincke asked Cisneros how his "vacation" was and the latter answered "Just fine." Cisneros testified that Lincke went on to say that the employees had made a "big mistake" by striking, that he knew President May better than anyone else, that he knew that May would never sign a contract with the Union, that when the employees struck, they lost all of their rights and that their "chances of going up with the company were very, very slim." 42 Lincke, who had worked for the Company since 1953 and said that he was not a talker but meant what he said, denied having made most of the above statements and said that he could not remember having made others. He testified that Cisneros "probably" started a conversation about the proposed repeal of Section 14(b) of the Act but claimed that he could not really recall what was said because it was "too far back." When asked on direct examination if he and Cisneros had any dis- cussion about the Union or the union contract with the Company, Lincke answered, "It might have been. I don't know. It's been a pretty good length of time;" i.e., mid-May to July 13. He was then asked if he recalled anything specifically that was said and he replied, "It'could have." The next question was whether he remem- bered it "at this time" and his answer was, "I wouldn't know." He was asked if his testimony was that he said nothing about the strike being a "big mistake" and he answered, '1 would say so." Later, Lincke said that he did not know for sure how the conversation with Cisneros began and did not remember everything that was said and repeated that it had been too long ago. His answers were often that he did not think he made the statements attributed to him by Cisneros. Although Lincke is a supervisor, he 42 Respondent's answer admits that Lincke Is a supervisor within the meaning of Section 2(11) of the Act. MAY ALUMINUM, INC. 597 claimed that he had nothing to do with promotions but added, "Well, we usually take, I would say the Company ... takes a guy that is capable of doing the job." He asserted that he "really" did not know the Company's promotion policy, that he had not been told about it "directly." In its brief, the Company argues that Cisneros "promoted" the conversation with Lincke, that Lmcke is a "no-nonsense" foreman who was not in the habit of engag- ing in idle talk with the employees and that the date of the alleged conversation is "illogical." It is clear that there was a conversation involving labor matters and it would not be illogical for references to be made to the employees ' own union activ- ities. Moreover, by late May, negotiations had been going on for about 5 months, with no prospect that a contract would be signed, and a number of employees had not been reinstated at all and others had been hired as new employees which meant that they had lost their seniority and other rights. Having considered these facts together with Lincke's alleged inability to recall what was said, his alleged lack of knowledge of the Company's promotion policy, the indirect nature of many of his answers, and his unconvincing demeanor while testifying, I do not credit his testi- mony and conclude that he made the statements attributed to him by Cisneros. Employee Richard Strelic, another striker, had 7 fewer months of seniority than Cisneros. In June 16, Strelic was made a metal checker which carried a salary of $325 per month. According to Cisneros' undisputed testimony, he had worked "around the press" longer than Strelic and he felt that he should have been given the job. In a conversation with Extrusion Superintendent Daniel Krenek, Cisneros asked why he had been "skipped over" for promotion 43 Krenek told Cisneros that the Company felt that he did not have the ability to be a metal checker. Cisneros inquired how a man who had been around the press such a short time and with less experience could be better qualified and expressed the opinion that if he had been "skipped over," it was because he had gone on strike. Krenek reminded Cisneros that nobody asked him to strike, that he did so of his own free will, and if he had wanted a job, he could have crossed the picket line, asked for a job in the die shop, and he would have got it. Krenek also observed that when the employees had to be represented by a Union they "weren't worth -a damn," that he had made it where he was on his own ability. He suggested that Cisneros could see Personnel Manager Burgess or Plant Superintendent Gibson. Krenek sent for Cisneros because it had been reported to him that Cisneros had indicated he was going to quit by asking for his two checks on Friday.44 Krenek said that Cisneros could have the checks if he wanted them. Cisneros explained that he did not want the checks, that he was merely asking if he could have them if he wanted them. A comparison between the testimony of Cisneros and Krenek shows that there are few material conflicts in their testimony. Krenek admitted that Cisneros told him that he did not want his checks but was asking if he could get them if he wanted them.45 Krenek claimed that he reminded Cisneros that Strelic had also gone on strike and that the fact that Cisneros had been a striker was immaterial. Krenek agreed that he told Cisneros that the jobs were open during the strike and were "open" to Cisneros if he had applied. He said he could not remember whether the subject of crossing the picket line was mentioned but conceded that he said that a "fellow" has to do things for himself and he felt that he was capable of rep- resenting himself. K. The Company's letter of June 30 and the information furnished on July 1 By letter dated June 30, Company Attorney Crowther notified Union Repre- sentative White that in response to a request that the Company submit its position in writing on "some" of the questions discussed during negotiations , he was advising White that: (1) The Company was interested in seeing that the employees got their periodic increases , that it would be willing to make them retroactive , that it 43 Krenek's supervisory status is admitted. 44 When an employee quits, the Company usually holds one check until the following week. 45 The office employee testified that Cisneros asked for his checks whereas Cisneros said that he asked only if he could have them if he asked for them. It seems probable that the office employee misunderstood Cisneros' question for Krenek conceded that Cisneros told him that he had not asked for his checks. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would put its practice in writing but that it could not agree to "any further wage increase at this time." (2) The Company's position on subcontracting and plant closure had not changed; the Company's counterproposals on these subjects were restated. (3) The Company would agree to a revocable dues checkoff. (4) The Company would agree to a "seniority provision similar to that con- tained in the former Houston contract, subject to such modifications as may be required to fit present operations." (5) The information regarding the profit sharing plan was being prepared and would be sent the Union within the next day or so. With a covering letter dated July 1, Company Attorney Crowther sent White a summary of the profit-sharing plan and a list of employees showing dates of hire and wage rates but not classifications. The information was based on the Com- pany's last payroll before the strike Personnel Manager Burgess said that he could not recall giving the Union any information about the Company's insurance plan. The letter asserted the belief that the information enclosed "completes the informa- tion requested" and ended with the statement that the Company understood that the Union would notify the Company through the Mediation Service if it desired further bargaining sessions . No information about the periodic increase "pattern" was included. L. The strikers who, allegedly, were not properly reinstated 1. The General Counsel's contentions About 140 employees went on strike and many, if not most, of them did picket duty. About 12 strikers returned to work before the picket line was withdrawn on April 27. Some of the strikers were replaced during the strike and the new employ- ees were told that, as far as the Company was concerned, they were permanent hires. The General Counsel's basic contention is that the strike was caused and pro- longed by the Company's refusal to bargain, that it was therefore an unfair labor practice strike which means that the fact that some jobs had been filled is no defense. In some cases, the General Counsel contends that the employees either failed to get the Company's telegrams or got them too late to report to the plant by the deadline stated in the telegrams. The facts with respect to the employees whose reinstatement is in issue are set forth below.46 2. The strikers whose jobs had been filled and who were hired as new employees It was stipulated that replacements for the strikers listed below were hired during me strike and that the men named were hired later as new employees, i.e., they were assigned to the shipping department at $1.25 an hour and lost all benefits they may have accumulated as of April 7, the day before the strike began. Most of the other facts set forth in this section are also based on stipulations. Frank Foisner: On April 7, Foisner was a stretcher helper and his rate of pay was $1.275 per hour. He received the April 27 telegram and was hired as a new employee on May 8. His rate of pay was increased from $1.25 to $1.275 on May 14. Godfrey Garza: On April 7, Garza was a stretcher helper and his rate of pay was $1.35 an hour. He received the first telegram and returned to work as a new employee on May 7. His rate was increased from $1.25 to $1.275 on May 10. Joskie Jenkins: On April 7, Jenkins was a buffer and his rate of pay was $1.35 per hour. He received the April 27 telegram, reported to the plant, was told his job was filled, and that he would be notified if there was an opening. He received the May 5 telegram and returned to work as a new employee on May 10. He was ter- minated on June 16 and the Company's liability, if any, ended on that date. Donald Jones: On April 7, Jones was a finish-saw helper and his rate was $1.325 per hour. He was hired as a new employee on May 10. His rate of pay was increased from $1.25 to $1.30 on May 31. ^ The names of Sylvester Arrambide, Emmett Coufal, David Estrello, and Bernard Mach were stricken from the complaint on the motion of the General Counsel. MAY ALUMINUM, INC. 599 Richard Jones: On April 7, Jones was a die-shop employee and his rate of pay was $1.925. He was hired as a new employee on May 10. His rate was increased from $1.25 to $1.275 on May 31. C. L. Miller, Jr.: On April 7, Miller was a buffer and his rate was $1.325 per hour. He returned to work as a new employee on May 7. He was terminated on June 17 and the Company's liability, if any, ceased on that date. Joe Nunez: On April.7, Nunez was a fabrication- general laborer and his rate was $1.275. He was hired as a new employee on May 6. On May 17, his rate of pay was increased from $1.25 to $1.275. John Nunez: On April 7, Nunez was a billet-loader and his rate was $1.275 per hour. He was hired as a new employee on May 8. His rate was increased from $1.25 to $1.275 on May 10. Baldermo Vallejo: On April 7, Vallejo was a drill press operator and his rate was $1.35 per hour. He was hired as a new employee on May 7. His rate was increased from $1.25 to $1.275 on May 10. 3. The other strikers not offered reinstatement a. Dennis Edward Baros On April 7, the day before the strike, Baros had worked for the Company about a year, was a stretcher operator, and his rate of pay was $1.30 per hour. He was living on West Fifth in El Campo. The April 27 telegram was addressed to East Watt Street, El Campo, where he had lived earlier and it is clear that it was not delivered to him.47 Baros had not notified the Company that he had moved; on the other hand, there is no evidence that the employees had been directed to notify the Company about changes of address. However, Baros had notified the local post office that he had moved and the owner of the Watt Street address knew his new address. Baros readily admitted that he attended a union meeting on April 29 (after the strike) at which Union Representative White told the men to go to the plant and ask to return to work. However, Baros' 7-month old son was seriously ill, his wife worked, and his mother had broken her leg. As a result, he was unable to go to the plant until May 10; i.e., about 2 weeks after the strike ended. (He had no tele- phone.) On May 10, he talked to Personnel Manager Burgess who said that Baros' job was filled but that he would let Baros know if a job became available. (Respond- ent did not claim at the hearing that Baros' job was filled between April 29, the deadline stated in the telegram, and May 10.) Burgess also warned Baros that he had lost his seniority and all of his accumulated benefits and that he would be hired as a new employee.48 Burgess told Baros to fill out an application for employ- ment as a new hire but Baros did not do so, his explanation being that he had filled out an application when he was hired and saw no reason to fill out another. He did give Burgess his new address. Baros asked Burgess why he "didn't get a telegram" and Burgess said that the Company had sent one and had not "got it back." Baros said he did not get the telegram. Baros testified that while he was talking to Burgess, he saw quite a few men who, he thought, were being hired because "You could see they just came from .. . having a physical because they had those little cotton patches on their arms where they had taken their blood tests. Everyone takes a blood test and a complete physi- cal." Although Baros thought the men he saw were being hired for the first time, a number of strikers did return to work at about that time as new employees. '' It was stipulated that the El Campo Western Union office manager , if called as a witness, would testify that "several trips" were made to Watt Street and that a notice was left there that there was a telegram for Baros at the Western Union office. There is no evidence that Western Union asked whether Baros lived at that address and, if not, what his new address was. 48 Burgess testified that lie could not recall having talked to Baros and expiersed the opinion that if he had clone so, he thought lie would have recalled it However, in view of Baros' testimony concerning what lie saw at the plant on May 10 (see supra ) and the fact that so many strikers were coming in during this period that Burgess might not have been able to remember each, I credit Baros' testimony 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company records show that the May 5 telegram was not sent to Baros and he was not offered a job until the hearing when he was offered a job as a new employee. The record indicates that the Company has job openings frequently and that summer is the Company's busy season. b. Zeb William Bennett Bennett was a finish-saw helper and his rate was $1.35 an hour. The April 27 telegram was delivered to his home on the afternoon of April 28 and left with his 8-year-old daughter. He was working elsewhere and did not get home until 10 or 11 o'clock that night and left at 4 o'clock the next morning. On his way home on April 29, he heard that the Company had sent telegrams and when he got home he asked if there had been a telegram and his wife said the child had brought her one the day before 49 This was Bennett's first notice that a telegram had been sent to him and he called Burgess between 4 and 5 p.m. on April 29, i.e., an hour or two after the deadline, and asked if it was too late to get his job back. Burgess told Bennett that as far as he was concerned, Bennett was too late but that he would consult the company attorney. Bennett called about 5 p.m. and was told that the switchboard was closed. He called Burgess the next morning and explained that he had received the tele- gram "late," Burgess said that it was "too bad" because a lot of "fellows" had received the telegrams late but that Bennett could come to the plant and fill out an application for employment as a "new hire." 50 Bennett did not fill out an applica- tion. Respondent did not claim that it had hired a replacement for Bennett in the 2 hours or less between the deadline and Bennett's telephone call. Bennett was not among those to whom the May 5 telegram was sent and he was not offered a job until the hearing at which time he was offered a job as a new employee. c. Norman Brandl On April 7, Brandl was working in the shipping department and his rate of pay was $1.25 an hour. He joined the strike and picketed two or three times. He received the April 27 telegram by mail and went to the plant on April 28 51 Person- nel Manager Burgess told Brandl that his job was filled and gave him an applica- tion to fill out. Brandl did not do so. He denied that he received the May 5 tele- gram which, it was stipulated, the Western Union office manager would testify was mailed to Brandl. The stipulation did not state whether or not the telegram was ever returned to the Company. Brandl lives with his mother and his brothers and he asked each if a telegram had come and each answered in the negative. He does not live near any of the strikers and did not know that anyone had received a telegram on May 5 or 6. On May 6, Baros was working about 10 miles away from his home and got home at 5:30 p.m. I credit Brandl's testimony that he did not receive the May telegram and that he did not know that strikers were being offered jobs during this period. Brandl was not offered a job until the hearing when the Company offered to hire him as a new employee. d. Benito Delgado Benito Delgado, who participated in the picketing, had worked in the window department and his rate of pay was $1.30 per hour. He apparently heard that the strike was over and it is undisputed that he went to the plant at about 4 p.m. on April 27. When Delgado talked to Burgess either that day or a day or so later, Burgess told him that his job had been filled and said that he could fill out an application. Delgado subsequently filled out an application. Delgado did not receive the May 5 telegram personally but his mother called him at the ranch where he was working and he went to the plant on May 6 and turned down a job as a new hire; i.e., in the shipping department at $1.25 per hour. Burgess told Delgado that he would be assigned to the night shift to begin with. 49 The above facts are based on Bennett's credited testimony It was stipulated that the Western Union official would testify that the telegram was left with Bennett's daughter. 60 Burgess testified that Bennett called on April 30, not April 29 However, I think that Bennett, whose job was at stake, would remember the date on which lie called Burgess and I credit his testimony. In any event, the Company does not claim that Bennett's job had been filled between 3 p in. on April 29 and about 4 p m. on April 30. 51 It was stipulated that Brandl had no telephone and lived outside the Western Union delivery area. MAY ALUMINUM, INC. 601 Prior to the strike, Delgado had worked from 7 a.m. to 3 p.m., and he said that he did not want to work nights. However, he told Burgess that he wanted his old job back.52 e. Eliborio Delgado Eliborio Delgado and Benito Delgado are brothers. At the time Eliborio Delgado was hired, he apparently lived at the Divide Street address where Benito Delgado and his wife lived at the time the strike ended. Also living at that address were other members of the Delgado family including the father, mother, another brother (Jesse) and the latter's wife, and a sister, Lucy Estrada. However, Eliborio Delgado was living on Thrift Street at the time the strike ended. He did not notify the Company about his change of address but, as indicated above, there is no evidence that the employees had been told to report changes of address. It was stipulated that the Western Union official would testify that the April 27 telegram to Eliborio Delgado was delivered to the Divide Street address about 2:45 p.m. on April 28, and was signed for by Mrs. Jesse Delgado. It was also stipulated that he would testify that the May 5 telegram was delivered at the same time that the one to Benito Delgado was delivered, i.e., about 9:30 a.m. on May 6, and was signed for by a sister, Mrs. Lucy Estrada. Eliborio Delgado worked in the window department and his rate of pay was $1.30 an hour. He received the first telegram, went to the plant a day after the strike ended and Burgess told him that his job was filled and that he would be noti- fied if another job was available 53 Burgess told Delgado to make out an application but he did not do so. Delgado testified that he received only the first telegram. He was not working the week of May 5 but could not recall whether or not he was at the Divide Street house that week. He also testified that he could not recall having talked to his brother, Benito Delgado, about the latter's telegram on May 6 and denied know- ing that men were going back to work at that time. I credit Delgado's testimony that he did not receive, in fact, the May 5 telegram. I can believe that none of the numerous persons living at Divide Street took the trouble to notify Eliborio Delgado that there was a telegram for him at Divide Street, that none remembered to mention it if he came by that day or the next, and that it got lost. A more difficult question is whether or not Delgado learned, prior to the deadline stated in the telegram (3 p.m. on May 7), that his brother, Benito Delgado, and maybe other strikers, had received a telegram on May 6 and had gone to see Burgess. Since there were only 291/2 hours between the time Eliborio Delgado's brother, Benito Delgado, received the May 5 telegram and the deadline and in the absence of evidence that the two brothers saw or at least talked to each other every day or two, I conclude that the record does not warrant a conclusion, contrary to his testimony, that Eliborio Delgado must have known about his broth- er's telegram on May 6. It is clear that the strikers who received and responded to the May 5 telegrams were not offered any reinstatement but only employment as new hires. It follows that if Delgado had received the second telegram and gone to the plant, he would have been offered only a job in the shipping department at $1.25 an hour, i.e., the offer which was made to him during the hearing. f. Ray field Gardner Gardner was working in the foundry and his rate of pay was $1.25 per hour. He received the April 27 telegram, went to the plant about 2:30 p.m. on April 29, and 13 The above facts are based in part on Delgado's testimony, much of it confused, in part on the testimony of Personnel Manager Burgess, and in part on company records. It is clear that most of the employees work "rotating" shifts ; i e , at nights for a number of weeks and then during the day for a number of weeks. At one point, Delgado seemed to be saying that this was not true of the employees in the window department In any event, it is undisputed that Delgado was never offered a job in that department at his former rate of pay. Neither telegram was delivered to Delgado personally. It was stipulated that the Western Union official would testify that the first was read to Mrs. Benito Delgado over the telephone and that the second one was delivered to Delgado's Divide Street address at about 9 : 30 a in. on May 6 and was signed for by Mrs. Lucy Estrada, Benito Delgado's sister. 93 Personnel Manager Burgess testified that Delgado responded to the first telegram but not the second. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burgess told him that his job had been filled. Burgess told Gardner to call the next day, Gardner called, and Burgess said he would notify Gardner when there was an opening. Gardner's address was Route 3, Box 182, Wharton, Texas, and it was stipulated that the Western Union official would testify that the telegrams were mailed to Gardner.54 Gardner testified that the May 5 telegram was received at his home on May 7 but that he was not at home because he was working at Lake Jackson, about 100 miles from his home. He usually came home Thursday (May 6) but did not come home that Thursday. He got home between 6:30 and 6.45 p.m. on Friday, May 7 and was given the telegram. He called the plant immediately and was told that Burgess was not there . He called again on Saturday morning and Burgess was still absent. Gardner said the "lady" he talked to asked if he wanted to leave his name and telephone number and he in fact did so. She told him that she "would have [Burgess ] call" Gardner just as soon as he came in. Gardner called again at 4 p.m. on Saturday , was unable to talk to Burgess, and did not call again. Burgess testified that he told the persons answering the telephone to tell the men to call again and not to tell any of them that he might not get the messages or might not be able to call . This seems a reasonable instruction but this does not prove conclusively that Burgess gave those instructions and, more importantly, Burgess was not present during the telephone conversations and therefore did not know what Gardner and others were actually told. The switchboard operator or whoever talked to Gardner was not called as a witness and no explanation was given for Respondent's failure to call her. Gardner 's testimony, therefore, is not denied, except indirectly, and I credit it. Personnel Manager Burgess testified that Gardner responded to the first telegram but not to the second. At the hearing, Gardner was offered a job as a new employee. g. Geronimo Gonzales Gonzales' address was Star Route, Louise, Texas. He was employed as a janitor and his rate was $1.35 an hour. It was stipulated that the Western Union official would testify that "telephone contact was established with a Mrs. Edwin Dornak at 11:30 a.m. on April 28" and she assured Western Union that she would tell Gonzales about the telegram and that a copy of the April 27 telegram was mailed to Gonzales about 11:30 a.m. on April 28. It was also stipulated that the May 5 telegram was mailed to Gonzales on May 5. Gonzales went to the plant on April 28, told Burgess that he "was reporting back to [his] job" but Burgess said that his job had been filled and that there was no opening. As Gonzales was leaving , Burgess followed him and told him he could fill out an application but that the chances of being rehired were "pretty poor" and that if he was rehired it would be as a new employee . Apparently, Gonzales did not fill out an application. When the May 5 telegram was delivered, Gonzales was on a trip and, as a result, did not receive it until Saturday, May 8. He went to the plant that day but Burgess was not there and he was told that Burgess would not be there that day. Gonzales identified the person he talked to as "the girl working out there in the front office down there where we have the telephone." He asked the "girl" to "please give [Burgess] a message," i.e., that he was away when the telegram was delivered and that he did not receive it until after the date stated in the telegram. The "girl" said she would give Burgess the message. Gonzales went to the plant on Monday, May 10. When Burgess asked Gonzales why he had not come to the plant as directed, Gonzales said that he was in or around New Orleans. Burgess repeated that Gonzales' job was filled but did not repeat the statement that Gonzales could make out an application. Gonzales testified that he made no arrangement for his wife to notify him if "anything" came from the Company and did not call her. In the course of the hearing, Gonzales was offered a job as a new employee 55 as Wharton is about 12 miles from El Campo and outside the El Campo deliver} zone. 65 Burgess testified that Gonzales came to the plant after the first telegram but was late in responding to the one sent on May 5. MAY ALUMINUM, INC. 603 h. Jesse Lopez, Jr. Jesse Lopez, who was a picket captain during the strike, was a die head operator and his rate of pay was $1.35 an hour. In the course of the strike he worked one night but did not return to work the next night. He explained: I was working the picket line, and I left the picket line and went home. And I decided-the boys in the plant told me why didn't I go back to work, kept talking to me, so I decided to go back. And then when I was there, when I was crossing the picket line, I just didn't feel good, I mean, they were my friends and I couldn't do that to them. But I was already there, so I worked that night. On the night Lopez worked, his supervisor, Leroy Shelton, asked why he was there and Lopez explained that he "needed to work." That same night, Extrusion Superintendent Krenek asked Lopez how he liked his vacation and when Lopez said he did not know, Krenek observed, "it's not too good. I don't believe it's right that you ought to be out there like that. You aren't going to get anywhere." Lopez replied that it was not a matter for him to decide. Krenek assured Lopez that he could stay on and work but said he did a "crazy thing," getting involved in the strike. Lopez was back on the picket line the next afternoon and saw Shelton as the latter was coming to work. It is undisputed that Lopez told Shelton that he would not be working that night. When Shelton asked why, Lopez said that he "didn't feel right" about working while his friends were outside. Shelton said only that it was "up to Lopez." Lopez testified, without dispute, that the night he worked, he did the job of a man who was absent and that he was told lie would be found another job when the employee returned. Respondent's exhibits disclose that Lopez was not sent a copy of either telegram and he testified that he did not receive either one. However, on April 28 he saw a copy of the April 27 telegram sent another employee and called Personnel Man- ager Burgess and told him that he could not come to work that day because he had to take a friend to an eye specialist. Lopez said that he could come in the next day and Burgess replied that it would be all right. Lopez went to the plant on April 29 but Burgess told him he was "fired because [he] had gone back to work one day and . . . had not reported it." When Lopez said he had told Supervisor Shelton that he would not be back, Burgess said he did not get a "note" about it. Burgess told Lopez that his job was filled, gave him an application, and said he would be recalled as soon as there was an opening.56 Lopez filled out the application and tried to return it to Burgess but left it with a secretary when he was told that Burgess was busy. Lopez went back to the plant twice more but was told both times that Burgess was busy. During the hearing, Lopez was offered a job as a new employee. Respondent offered no explanation, either at the hearing or in its brief, for its failure to send Lopez either telegram. i. Michael Malandrakis Malandrakis, who engaged in picketing, was a pullout man on the press (puller) and his rate of pay was $1.25 per hour. The April 27 telegram was read to his mother, probably the same day, over the telephone. Malandrakis was working in the oil fields but he went to the plant on April 28. Burgess asked Malandrakis to sign a list to show that he had come in. Burgess also asked if Malandrakis wanted his job back, Malandrakis said he did and Burgess said that he would have to check to see if Malandrakis' job was available. Burgess also told Malandrakis to come by or call the next day and he would be told whether or not there was a job for him. According to Malandrakis, he called the plant the next day and was told that Burgess was not in and Malandrakis left his name, address, and telephone number and asked that Burgess call him. Having heard nothing from the Company, Malan- drakis called the plant at least once and maybe twice thereafter but was told that w The above facts are based on Lopez' undenied testimony. 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Burgess "was in conference or something like that," and again left his name. A week and a half or 2 weeks after the strike, Malandrakis went to the plant but was told that Burgess was busy and was asked by the receptionist if he would like to fill out an application. As Malandrakis was filling it out, he saw Burgess and asked him the date of the strike. However, neither he nor Burgess said anything about a job. The first job offer to Malandrakis was made during the hearing and was an offer to return to work as a "new hire." 57 As noted above, Burgess testified that he knew that there would be many calls and told the receptionist who operates the switchboard not to take any calls but to tell the callers to keep trying until they got him. But, as also noted above, Burgess did not know what the receptionist actually told the callers and the latter was not a witness nor did Respondent explain its failure to call her. There was nothing in either Malandrakis' testimony or in his demeanor which would justify a refusal to credit testimony which, I assume, could have been but was not refuted. It is clear that Malandrakis' job was open and that he could have returned to work on May 3 if he had been notified to do so 58 j. Lee Roy North North, who served as a picket captain, was a stretcher operator and his rate of pay was $1.35 an hour. He testified that he saw the April 27 telegram for the first time about 10:30 p.m. on April 2859 He went to the plant about 5:30 p.m. on April 29, i.e., 2 or 3 hours after the deadline, and found no one in the office. At the hearing, he explained that he had no telephone, that his wife was working and had the car, that his mother also works, that his grandmother was away, and that he had to stay with his five, small children. He added that he thought he would go to the plant when his wife came home at noon on April 29 but that she did not come home to lunch that day. North went to the plant the next day and told Burgess he was ready to go back to work. Burgess asked if North had come to the plant the day before and North said that he "couldn't make it." (North claimed that he was not given an oppor- tunity to explain why he was unable to get to the plant by 3 p.m. on April 29.) Burgess said that North's job was filled, that he would have to make out a new application, and that he would have to start in the shipping department. North did not fill out a new application and was not one of those to whom the Company sent telegrams on May 5. In the course of the hearing, he was offered a job in the shipping department as a new employee. Although I credit North's testimony that he did not go to the plant before the deadline because it would have meant leaving five, small children at home alone, it is clear that he assumed that it would not matter if he was a few hours or even a day late in reporting. On the other hand, I cannot find that North could have made arrangements to get to the plant by the deadline for, even if it is assumed that his wife could have come home at noon on April 29, it is far from clear that he would have been able to get to the plant, see Burgess, and get the car back to his wife in time for her to get back to her job before her lunch hour was over. Respondent does not claim that North's job was filled between the deadline and the time he actually reported. M. Analysis and conclusions 1. The interference, restraint, and coercion a. The threats On April 27, 1965, the first day of the strike, President May instructed Supervisor Boren to tell the die-shop employees that if they took their tools out, they "couldn't come back" and that was what Boren told several of them. May himself told several sr Respondent's exhibit which shows the names of the strikers to whom the May 5 telegram was sent does not list Malandrakis' name. 58 The practice of having the strikers come in first to say whether they wanted their jobs back, before the Company determined which jobs had not been filled, meant that they had to come or call a second time to learn whether or not to report to work and increased the possibility of errors or that the instructions would be misunderstood. 5 It was stipulated that the Western Union official would testify that the telegram was delivered to North's home about 11 : 40 a in. on April 28 and was signed for by his wife. North did not explain where he was or what he was doing before 10 : 30 p in. on April 28. MAY ALUMINUM, INC. 605 die-shop employees the same thing and directed his remark to Local President McElroy in particular. Later, May told some of the men outside the plant that if they did not report for work they were "through" and/or that they were fired. Sometime in May, i.e., a few weeks after the strike ended, Supervisor Lincke asked employee Cisneros how he liked his "vacation," told Cisneros that the employ- ees had made a "big mistake" by striking, that President May would never sign a contract with the Union, that the employees had lost their "rights" as the result of the strike, and that their "chances of going up with the company were very, very slim." In the middle of June, another striker was given a job as a metal checker which Cisneros thought he should have had because of his greater seniority and experience. When Cisneros complained and claimed that he was "skipped over" because he went on strike, Supervisor Krenek told him that the decision to strike was his own, that he could have had the job if he had crossed the picket line and applied, that employ- ees who needed union representation "weren't worth a damn," and that he [Krenek] had got where he was on his own ability. It is well established that an employer violates Section 8(a)(1) of the Act by telling employees that they will not be coming back, or are "through," or are "fired" if they strike and by telling employees that they have lost their rights because they had engaged in a strike and that their chances of "going up" with the Company are "very, very slim." It follows, therefore, and I find that the Company violated Section 8 (a) (1) of the Act by making the foregoing statements. See Collins Baking Company v. N.L.R.B., 193 F.2d 483, 486 (C.A. 5). In view of the fact that Cisneros was fully reinstated and that the employee who got the job in June, which Cisneros thought he should have had, was also a reinstated striker, I do not find that Supervisor Krenek's statements to Cisneros on that occasion violated the Act. Some of Krenek's statements were nothing more than arguments against union representation. Perhaps Krenek's remark that Cisneros could have had the lob if he had crossed the picket line and his comment that employees who needed a Union "weren't worth a damn" could be construed as threats of reprisals against Cisneros because he continued on strike and because he chose to be represented by a Union. However, having considered all of the circum- stances, I do not so find. b. The discontinuance of the 90-day raises in October 1964 The complaint alleges that the Company, "on or about December 1, 1964" dis- continued its practice of giving periodic increases because the employees had voted for union representation.60 However, it is undisputed that the original decision to discontinue the 90-day raises was made in late October 1964, i.e., shortly after the Union filed its representation petition. It follows, therefore, that the decision could not have been motivated by the Union's victory in the Board-conducted election as the General Counsel recognizes for he argues in his brief that the raises were dis- continued because of the union activity generally. The first question, then, is whether there is a fatal defect between the complaint and the proof because the Company's action occurred several weeks before the date alleged and the alleged motive was one type of union activity where the illegal motive, if any, was necessarily a different type of union activity. The purpose of the complaint is to put the Respondent on notice about what action it has taken which is alleged to have violated the Act so that it can prepare to defend its conduct by whatever means it chooses. In the instant case, the complaint advised Respondent that the General Counsel was contending that the decision to withhold the raises violated the Act. The Company admitted that it had decided not to give any more 90-day raises "until after the election," it knew when the decision was made and introduced evidence designed to establish that its action was legally motivated.61 Thus, the Company's defense was an explanation of why it discontinued the raises in October, not in December, and there is no reason to believe that it would have presented different or additional evidence if the complaint had alleged that it had made the decision in October or if it had alleged that the Company was motivated by the October union activity rather than by the employees' decision to be represented by the Union. In sum, the issue actually litigated, as the Respondent aP All references to discontinued raises are to the 90-day raises, it being undisputed that the Company gave all 45-day raises as they came due ai In situations such as this in which the Company makes no announcement about its decision, the General Counsel can only estimate the date 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD recognizes in its brief, was whether the decision to discontinue the raises violated the Act.62 I conclude, therefore, that the variance between the complaint and proof does not.bar consideration of the issue of whether the Company violated the Act by deciding to withhold the raises after the petition was filed in October.63 Cf. Rocky Mountain Natural Gas Company, Inc. v. N.L.R.B., 326 F.2d, 949, 951, foot- note 3 (C.A. 10). Although the Company became aware of the union activity in August 1964, it not only continued to give the 90-day raises but felt free to correct, during this very period, the mixup upon which it now relies to justify its action. This it did by post- poning the raises for 45 days so that they would be back on schedule. (See supra.) Needless to say, unfair labor practice charges can be based not only on company action after a petition has been filed but on action taken during the period in which the Union is seeking sufficient support to file a petition. However, the Company made no effort to explain why it did not fear a charge prior to the petition but, allegedly, feared one after the petition. In fact, the Company's position was stronger in October than it was in August and September for by late October, the mixup had been straightened out for about a month and the raises were again in conformity with its policy except in two cases and the Company gave those two employees post- petition increases. More importantly, the Company failed to explain to the employees why it was withholding the raises as it surely would have done if its reason had been the one asserted by the Company at the hearing. Cf. N.L.R.B. v. Zelrich Company, 344 F 2d 1011, 1014 (C.A. 5). In addition, the Company's acknowledged position was that the employees would suffer, rather than benefit, if they chose to be represented by the Union and it was in a position to prove its contention by withholding the 90-day raises. And the withholding of the raises would also remind the employees that the Company regarded wages as a matter wholly within its control. Having considered the Company's hostility toward the Union, the fact that the mixup had been straightened out at least a month before the petition was filed, and the Company's failure to explain to the employees its alleged reason for withholding the raises, I find that the mixup discovered in July or early August was but a pretext put forward later to justify its action and that the raises were not withheld because the Company feared an unfair labor practice charge if it continued to give them. I find, instead, that the raises were withheld because the Union's petition disclosed that it was making progress in its campaign to become the bargaining representative of the employees and to discourage the latter from voting for union representation 64 It follows, therefore, and I find that the Company violated Section 8 (a) (1) of the Act by withholding the 90-day raises on and after late October 1964. Cf. N.L.R.B. v. 'Zelrich Company, supra. In any event, the test of whether conduct violates Section 8(a)(1) of the Act is not the Company's motive but whether the reasonable tendency of its action was to interfere with, restrain, and coerce employees in the exercise of the rights guaran- teed them by the Act. Cf. N.L.R.B. v. Wilbur H. Ford d/b/a Ford Brothers, 170 F.2d 735, 138 (C.A. 6). In other words, the Company's action is judged by the manner in which it will be interpreted by the employees. Cf. Hendrix Manufacturing Company v. N.L.R.B., 321 F.2d 100, 103-104 (C.A. 5). In the instant case, all that the employees knew was that the Company was hostile to the Union, that they stopped getting the raises when the petition was filed, and that the raises were not 62 The first charge was filed on April 2, 1965, which means that the Company's decision in October 1964 occurred within the 6 months limitation period. 63 May consistently explained that the decision was to withhold the raises "until after the election" lest the Company be charged with an attempt to interfere with the election. Even in its March 30, 1965, letter to the employees, the Company stated that it had been unable to give the increases "because of the Union' s organizational campaign." It being undisputed that the raises were not resumed after the election, a second decision must have been made after the election, I e., after November 20 and perhaps on or about December 1 when the Union was certified . It is also clear that the decision was not to give any 90-day raises. On the other hand, it can hardly be doubted that the Company would have started giving the raises again if the Union had been defeated. 64 As stated supra, in the earlier proceeding based upon charges filed in the fall of 1964, the Board found that the Company engaged in surveillance, repeatedly interrogated the employees, threatened reprisals, and discharged an employee because of his union activity Of course, most of the employees who received the 45-day raises were hired after the peti- tion and/or the election and played no part in the successful union campaign. MAY ALUMINUM, INC. 607 resumed after they voted for the Union . In view of these facts , I conclude that the employees would believe that the raises were withheld in reprisal for their union activity and that, therefore , the Company's action constituted interference , restraint, and coercion within the meaning of Section 8 (a)(1) of the Act. See also N.L.R.B. v. Buinup and Sims, 379 U.S. 21, 23-24. 2. The refusal to bargain in good faith a. Summary of events As set forth supra, during the Union's organizational campaign in the fall of 1964, the Company engaged in surveillance, repeatedly questioned employees, threatened reprisals for union activity, and discharged one employee because of his union activity. Upon receipt of the Union's representation petition on or about October 26, the Company decided to withhold the customary 90-day raises " until after the elec- tion." It gave the employees no reason for its action and when the election was over and the Union was certified, the Company did not resume its practice of giv- ing such raises. Nor did it explain to the Union, when bargaining began in January 1965, what its practice had been, that it was continuing to give 45-day raises, or why it had decided to withhold the 90-day raises. By mutual consent, the parties postponed serious discussion of the money clauses in the Union's proposed contract until after the noneconomic clauses had been dis- cussed. As a result, the 10 meetings which were held before March 25 were devoted primarily to discussing such matters as seniority, checkoff, union security, subcon- tracting, and a grievance procedure. In the course of those meetings, agreement was reached on a number of clauses which were more or less noncontroversial such as recognition and purpose. Agreement was also reached on a number of items which represented concessions by the Company. For example, the probationary period was set at 30 days, instead of the current 45 days, the Company agreed to furnish a bulletin board for the Union's use, to pay employees called for jury duty, and to pay "call-in" pay. There was also agreement on some of the subsections of the Union's proposal with respect to overtime pay but it is not clear whether or not this meant increased employee benefits. Also agreed to was a grievance proce- dure which included binding arbitration. Agreement was not reached on seniority, a subject which came up in various forms such as job bidding, or on checkoff, or on subcontracting which included plant closure. The major money items also remained in dispute; i.e., the number of paid holidays, vacations, insurance, and wages. All, except wages, were discussed to some extent before March 25, and the Company offered two vacation plans leaving it up to the Union to select the one it preferred. A number of other subjects also remained unsettled, in whole or in part, such as the effective dates of the contract, leaves of absence, and the number of part-time employees, but it seems clear that the disagreement on these subjects would not have prevented the signing of a con- tract if agreement had been reached on the many-sided question of seniority, on checkoff, on subcontracting-plant closure, and the major money items. In addition, some clauses, such as management rights, had not been discussed because President May wanted to check them with the Company's attorney. Many of the items in dispute centered around the die shop and/or die repair shop and Union Representative White was taken into the plant to familiarize him- self with the jobs performed by the various men. The Company offered a substitute list of job classifications in these shops which apparently was agreed to. The die shops were also mentioned particularly in connection with subcontracting. The Company pointed out that its costs in those shops had been rising, quoted figures to substantiate its claim, and stated that it had been thinking for some time about buy- ing more dies from outside. The Company asked that the union label clause be deleted and the Union agreed. It refused to agree to tell the Union why an employee had been disciplined or dis- charged but only that action had been taken. May expressed the opinion that the Union's committeemen were incompetent. When the truckdriver was being dis- cussed, President May threatened, to take him out of the unit if the Company was not left free to handpick the driver. By March 25, the parties had discussed the nonmoney items at least twice and had discussed, to some extent, a few of the money items such as vacations and holidays. On March 25, President May wanted to know if White was ready to get into the money clauses and White said that he was , that the "cat and mouse 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD game" should be stopped . The Company repeated its vacation offer. Personnel Manager Burgess was asked to compile cost data on insurance , the Company offered a 3-cent increase in the third shift differential but stated that the number of paid holidays would remain the same. On wages, May said that he would say "damn quick" what he would do and that was that he was "not going to do a damn thing," that he had told the employ- ees what he was going to pay them, and that was what he was going to pay them. May also observed that the Union had told the employees that it was going to get the Company to do something different , adding "Now, let's see you do it." White asked if May would be willing to have the jobs evaluated by an arbitrator but May said that he would evaluate his own jobs. At the close of the March 25 meeting , White commented that he had hoped that a contract could be agreed to without a "fight" but that was apparently not possible. He also proposed to call the Mediation Service and did so that afternoon That same day, White prepared a notice calling a union meeting for April 1 to take a strike vote and asked Personnel Manager Burgess to post copies in the plant. On March 30, the Company gave approximately 90 employees their periodic increase, the first 90-day increases given since the previous October, shortly after the Union filed its representation petition . A copy of the announcement was sent to Union Representative White. At the April 1 meeting , the employees voted overwhelmingly to strike. On April 2, the Union filed a charge alleging that the Company had refused to bargain in good faith by granting "a unilateral wage increase" to the employees "after having refused during negotiations to grant any wage increases . On April 7, the Company notified the employees that because of the charge, it was rescinding the increases . The Company's letter referred to the increases as those which the employees were promised when they were hired and which they had "been receiving since that date ." The employees were also told that "the amount paid under this increase " would be deducted from their next checks. A copy of the letter was sent to the Union. The same day, the Mediation Service advised White that there was a sched- uling problem and that a company-union meeting was set for April 15. (By April 15, 41/2 months of the Union's certification year would have passed and the parties had just begun serious negotiations on money items and had not nego- tiated at all with respect to some clauses such as management rights about which there is frequently serious dispute.) White notified the Company that the Union would probably call a strike at once if agreement could not be reached the next day. He was told that the Company could not meet on April 8. However, the Company did not suggest the possibility of a meeting before April 15. The strike began on the morning of April 8 and a number of the die-shop employees were told by President May and Supervisor Boren that if they took their tools out, they could not bring them back and May directed his remark to Local President McElroy particularly. May also told a group of employees out- side the plant that they were "through " and/or "fired" if they did not report to work. White remarked to May that he had asked for a fight and he had one. May replied, "You are goddamn right I did." Approximately 140 employees joined in the strike originally but about a dozen returned to work before the strike ended on April 27. On April 9, the Union filed another charge based on the granting and later cancellation of the raises. At the company-union meeting on April 15, the parties started going through the Union's proposed contract a third time but no new agreements were reached. In fact, President May said flatly that there would be no checkoff although he had indicated earlier that he might agree if the employees paid the cost or that a "trade" might be worked out. Other items were found to be in dispute although one or the other of the parties had understood that they had been agreed to.65 as On April 19, the Company filed an action in a State court which charged the Union with illegal conduct and sought to have White's deposition taken and to have him produce "all books , papeis, documents, notes. memorandum , correspondence , and so forth with any and all of the Company 's employees" in connection with the strike and the picketing One of the allegations was that White had caused the publication and circulation of a falae statement accusing the Company of violating the law , presumably by filing the charges with the Board. MAY ALUMINUM, INC. 609 At the second meeting during the strike, the Company handed the Union a number of written counterproposals which would give the Company the exclusive right to make various changes during the term of the contract, including the right: (1) to subcontract or to terminate all the production work performed by the unit employees without prior bargaining. (2) to establish the wage rates for new job classifications without prior notice or bargaining although the Union could file a grievance within 30 days. When the parties met on April 27, the day the strike ended, the Union charged that to agree to the above clauses would, in effect, "decertify" the Union. The Company replied that it did not intend to subcontract all of the work but refused to put its statements in writing. Union Attorney Crawford and President May got into a heated argument on wages with May repeating his statement that he was not going to give a "damn cent increase" but was going to do only what he had done in the past. When Crawford asked if the Company was pleading inability to pay, May admittedly replied that it was none of the Union's "goddamn business" and stated at the hearing that this was his belief. Union Representative White handed a letter which stated that White had been authorized by all the strikers to make an unconditional offer to return to work and that he was making such an offer on behalf of each individual striker. The Company questioned White's and/or the Union's authority to make the offer and said that only "bona fide" request for reinstatement would be made when the strikers came to the plant in person. May stated that he would reinstate any striker who had not been replaced except the die repairman who had "sabotaged" the Company and any employee who was guilty of picket line violence or had made threats on the picket line. As noted supra, the Union's top officials came from the die shop or die-repair shop and there is no evidence of any picket line threats or violence. The Union asked for a list of the employees just before the strike, their job clas- sifications, dates of hire, and rates of pay, in part at least to enable it to determine whether the strikers were being reinstated to their former jobs. On July 1, i.e , more than 2 months later and a few days before the opening of the hearing, the Com- pany sent the Union a list of employees, the dates on which they were hired, and their rates of pay but not their job classifications. The insurance information requested before the strike was never furnished. It was agreed on April 27 that the attorneys would meet in Houston to try to reach agreement on a seniority clause and perhaps other subjects. As set forth elsewhere, most of the strikers were reinstated and the Company offered to hire and/or did hire most of the others as new employees either in May or during the hearing. At a meeting on May 4, President May made the "flat statement" that the Union did not represent the employees and characterized White as a "labor thug." It may have been at this meeting that May referred to Union Representative White as a "jackass" and the union attorney asked May what century he thought he was liv- ing in and made other derogatory but unquoted remarks about May. The Union refused to waive the Company's liability, if any, to the strikers on the ground that these were individual rights. May repeated his position that he was not going to pay a "damn cent" more than he had promised to pay, and that no "damn" union was going to make a liar out of him. However, he repeated his offer of a 3-cent-an-hour increase in the third shift differential and also said that he would consider a revocable checkoff provision. It was at this meeting that May stated that "as of right now" three of the die men who had returned after the strike as metal checkers were transferred to the engineering department; i.e., out of the bargaining unit. The fact that the leader- man in the die shop, a nonsupervisory employee, was now an ordinary rank-and- file employee, at a lower rate of pay, was also discussed. In addition, the Company handed the Union some more counterproposals which White said amounted to little if anything more than a restatement of clauses already agreed to. The Union, in turn, made a counterproposal, i.e., that the Company agree to the same contract that it had with the Machinists in Houston with only the dates and the name of the union changed. The Company, however, pointed out provisions in that contract to which it could not agree, such as the checkoff clause and the wage rates. 257-551-67-vol. 16 0-4 0 .6X0 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The last meeting was requested by the Company and was held on June 23. The Union agreed that the Company could make a payment from the profit-sharing plan but would not agree to payment of the periodic raises. May said that they would be paid when a contract was signed. May repeated that he would not give a "damn penny" general increase and the Union asked for a statement of the Com- pany's periodic pay "pattern." No new agreements were reached but the Company indicated that it might make further counterproposals. b. The failure to bargain in good faith in violation of Section 8(a) (5) and (1) of the Act The Union having been certified as the exclusive bargaining representative of the Company's employees, the Company was required to bargain with it with an open mind and a sincere purpose to reach agreement consistent with the respective rights of the parties. N.L.R.B. v. Herman Sausage Company, Inc., 275 F.2d 229, 231 (C.A. 5). Thus, good-faith bargaining is basically a question of the employ- er's state of mind or his attitude toward the union and collective bargaining gen- erally and that state of mind or attitude is determined by examining his entire course of conduct, not by considering each event individually and as unrelated to what went before or what followed after. N.L.R.B. v. Stanislaus Implement and Hardware Company, Ltd., 226 F.2d 377, 381 (C.A. 9). Of course, this includes what the employer said and did not say, what he did and did not do, and the timing and interrelation of the various events. Nor is good-faith bargaining neces- sarily established by the fact that the employer met with the union, discussed the latter's proposals, and agreed to some of them. See N.L.R.B. v. Herman Sausage, supra, 232. The employer must recognize the rights of the union in fact as well as in theory such as its right to bargain on all terms and conditions of employment, its right to information, to explanations, to be consulted, to ask pertinent ques- tions and to have them answered, and to have all of its proposals considered on their merits. Perhaps the attitude required is similar to that with which the Company would .bargain with a supplier or customer with which it would like to do business but with which it is not obligated to buy or sell. With such a supplier or customer, the Company would not resent the need to negotiate terms and would not regard the time spent in negotiations as wasted. The Company's counteroffers would not, in effect, require the supplier or customer to abdicate basic rights. Nor would the ,Company make it clear that it had proved its point if, as the result of the nego- tiations, the customer or supplier lost both money and prestige. Although the Company sought to defeat the Union by engaging in unfair labor practices, after the Union was certified, it met with the Union repeatedly, discussed most of the nonmoney clauses at length, and the parties reached agreement on a number of such items. However, when bargaining began in earnest on the money items on March 25, the Company stated that it would do nothing more on wages than it was already doing, its only explanation being that it had "promised" the employees when they were hired what their rates would be and that was what they were going to be. As May put it at the hearing, "I think we went into the fact that we had made certain definite commitments" to the employees and the Company felt "obligated to" keep them. In I. I. Case Company v. N.L.R.B., 321 U.S. 332, the company argued that it .could not bargain with the union with respect to wages and other terms and con- ditions of employment because it had previously entered into 1-year contracts of hire with the employees which established their rates of pay and other terms of employment. However, the company offered to negotiate about matters not governed by the contracts of hire and on all matters once those contracts expired.66 In considering the company's contention, the Court pointed out, 321 U.S. at 337-338: Individual contracts, no matter what the circumstances that justify their exe- cution or what their terms, may not be availed of to defeat or delay the pro- cedures prescribed by the National Labor Relations Act . . . nor may they be e5It was undisputed that the contracts were not obtained by any unfair labor practice and were valid under the circumstances in which they were made. By the time the case reached the Court, the contracts had expired and a collective-bargaining contract had been negotiated. Nonetheless, the Court held that the question of the refusal to bargain was not ,moot. 321 U.S. at 334. MAY ALUMINUM, INC. 611 used to forestall bargaining or to limit or condition the terms of the collective agreement . Wherever private contracts conflict with [the Board's] func- tions, they obviously must yield or the Act would be reduced to a futility. The very purpose of providing by statute for the collective agreement is to supersede the terms of separate agreements . . . with terms which reflect the strength and bargaining power and serve the welfare of the group. Although the Company in the instant case did not contend that it could not bargain with the Union about wages because of its promises to (agreements with) the employees, it made it clear that it would not bargain about wage rates because .they had been established when the employees were hired. Its attitude also made it clear that nothing the Union could say could persuade the Company to make any changes and that bargaining on the subject would be futile. As a practical mat- ter, this meant that the Company's position on wages was basically the same as that of the employer in Case, i.e., that the rates of pay had been settled by its "contracts" with the employees and that they were not a subject about which the -Company would bargain.67 The Company also made it clear, during the negotiations and at the hearing, that its position on wages was motivated, at least in part, by a determination to prove to the employees its contention that they would be worse off if they chose to be represented by a union; i.e., that they would have less money after they had paid their union dues. I conclude, therefore, that a preponderance of the evidence supports the alle- gation of the complaint that Respondent refused to bargain with the Union about wages thereby violating Section 8(a)(5) and (1) of the Act. The Company's preference for individual bargaining is further revealed by its statements and actions with respect to the reinstatement of the strikers. Thus, when Union Representative White gave the Company a letter on April 27 in which be made an unconditional offer, on behalf of each individual striker, to return to work, the Company asked if White had the authority to make such an offer on behalf of each employee individually and stated that the only "bona fide" offer would be made when the strikers reported to the plant; i.e., one by one. The Company's April 27 telegram to the strikers was consistent with that position for it told them: We have been told that the strike is over. Please report in person ... or we will assume that you do not want to be reinstated. This was also the Company's position when the strikers came to the plant for Burgess testified that he asked each man if he wanted to return to work and he admitted that it was only after the men had applied individually that he determined which jobs were still available.68 In short, the Company treated the Union's letter as nothing more than a notice that the strike was over and its April 27 telegrams were not offers of reinstatement but invitations to the srikers to apply, individ- ually, for reinstatement. Furthermore, all of the strikers were given less than 48 hours, and a number substantially less time in fact, within which to apply for reinstatement and those who were only a few hours late were denied reinstatement even though they had not received the telegrams in time to apply before the deadline and even though there is no evidence that their jobs had been filled in the interim. Of course, on the day the strike began, President May and Supervisor Boren told a number of men in the die shop, including specifically Local President McElroy, that if they did not work that day, i.e., if they went on strike, they would not be coming back. McElroy and the other top officials of the Local worked in the die shops and on the day the strike ended, May said that he would not take back any of the die repairmen who had "sabotaged" the Company. (As pointed out earlier, there is no evidence of any striker misconduct.) And then, on May 4, President May sought to terminate negotiations by stating that the Union did not represent the employees, his only reason being that no ,employee had been present at the negotiating meetings after April 15 69 (As stated 87 Indeed, this seems to be Respondent's position in its brief for it notes that the Union -did not incorporate the Company's wage practices into its proposed contract. ea As a result, the men whose jobs were still available had to call or come by the plant a second time to learn when to report to work. In contrast, the May 5 telegrams told the men exactly when to report for work. 61 The Union's certification year still had nearly 7 months to run. 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD supra, Local President McElroy had found a job in Houston and had resigned. In addition, the employees had authorized White and the Union 's attorney to act in whatever manner they saw fit.) May also referred to the Union's chief spokes- man as a labor "thug" and a "jackass" and admittedly paid little attention to state- ments by its representatives. Respondent revealed in other ways its attitude toward the rights of the employ- ees and their bargaining representative generally and about wages in particular. Thus, when May was asked during negotiations if the Company was pleading inability to pay higher wages, he admittedly replied that it was none of the Union's "goddamn business," a view which he also expressed at the hearing. On another occasion , May put his attitude into words when he admittedly told another company representative that it was "too bad" that he had never been able to sit down and talk with Union Representative White and "go over some things" that White did not know and that the Company "did not care to discuss in the nego- tiations." Had that been possible , May said, he "felt" that White would have known "more about our position as individuals [on matters ] not to be brought out in negotiations . In addition, the Company's actions with respect to wages were consistent with its statements . Thus, it failed to explain its periodic wage policy to the Union, or- that it was continuing to give 45-day raises, or that it had ceased to give 90-day raises or why it had done so in October 1964 when the Union filed its represen- tation petition . Then, on March 30, 1965, without any prior discussion with or notice to the Union, the Company gave the employees the raises it had prom- ised them individually and had been withholding since the previous October. When- the Union filed a charge alleging that the raises constituted unilateral action, the Company did not discuss the situation with the Union but rescinded the raises, stating that it was doing so because of the charge and claiming , untruthfully, that the employees had been receiving the raises since the dates on which they were hired. (Of course, the March 30 increases had failed to prevent an overwhelming strike vote on April 1.) As a practical matter, the Company also regarded as none of the Union's business other matters directly related to the employees' relations with the Company. Thus, early in negotiations, the Company said that it would not tell the Union why employees were disciplined or discharged but only what action it had taken . Need- less to say, the Union would be handicapped in representing the employees in con- nection with grievances , if it had no accurate information about the reason the Company was asserting for its action . Similarly, the Company disregarded com- pletely and without explanation the Union 's request for information about the Company's insurance costs, its periodic pay increase "pattern," and the job classifi- cations of each employee at the time of the strike . (The latter information was requested at least in part to enable the Union to determine whether the strikers were being reinstated to their former jobs.) Although the Company finally furnished the Union some of the information a few days before the hearing and about 2 months after it was requested , it did not supply all of the information and its usefulness to^ the Union was considerably reduced by the time it was given. The Company's counterproposals in April, while the employees were on strike, on such subjects as subcontracting, plant closure , and new processes further dis- closed its attitude toward the Union's right to be consulted and the Company's desire to avoid its obligation to negotiate with the Union on subjects which could directly affect the job security and wages of employees . The effect of the proposals was to seek a waiver by the Union of its well-established right to bargain on sub-- contracting and the wage rates for newly created jobs. As put by White, these pro- posals amounted to a request that the Union "decertify " itself as the employees' representative in these areas . Although there was nothing illegal about the counter- proposals, the Company must have known that no self-respecting Union would be- likely to agree to them and that the proposals were likely to widen, rather than to narrow, the areas of disagreement . As the court said in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 134 (C.A. 1), cert. denied 346 U.S. 887, if the Board is not to be blinded by mere talk, it must take some cognizance of the reasonableness of the company 's offers including those which it must have known had not the slightest chance of being accepted by a self-respecting union . See also- Vanderbilt Products, Inc. v. N.L.R .B., 297 F.2d 833, 834 (C.A. 2). Furthermore , when the Union raised questions about the truckdriver, President May threatened to take him out of the unit and when it rasied questions about the- reinstatement of die-shop and/or die -repair men as metal checkers, May announced that as of that moment they were assigned to the engineering department which is MAY ALUMINUM, INC. 613 not within the unit description . This meant that the Union's officers no longer worked at unit jobs and, as found infra, his action was motivated, in part, by a desire to avoid bargaining with the Union concerning their poststrike status. Indeed, since May was of the opinion that he could move employees unilaterally as long as there was no contract ( see supra ), he must have believed that it was in the Com- pany's interest to postpone agreement as long as possible and perhaps to avoid ever signing a collective-bargaining agreement. As noted previously, the courts have recognized that a willingness to meet and talk with the union and to agree to some of its proposals do not establish that it bargained with the union with an open mind, with a sincere desire to reach agree- ment on all issues and to incorporate the agreements reached into -a collective- bargaining contract. N.L.R.B. v. Herman Sausage Co., supra, 232; N.L.R.B. v. Reed & Prince, supra, 139. In other words , an employer may fail to bargain in good faith even though he does so with "sophistication" and "finesse" rather than by a blunt refusal to meet and talk. Herman Sausage, supra. In the instant case, the Company's statements and actions disclosed its hostility to the Union and its rights as the certified bargaining representative of the employ- ees. Included, inter alia, were the Company's actions during the organizational period, its withholding of the 90-day increases when the Union filed its petition, its position that wage rates had been established by its promises to the employees when they were hired, its failure to explain its wage policy and practices to the Union, its granting of 90-day raises in March, 1965, without prior discussion with or notice to the Union and just before a strike vote was to be taken , its cancella- tion of the raises after the first charge was filed and after the employees had voted overwhelmingly to strike, its refusal to honor the Union's unconditional applica- tion for reinstatement on behalf of the strikers , its threats of reprisals against strikers, its failure to furnish information on request , its transfer of jobs out of the bargaining unit when the Union raised questions, and its counterproposals on subcontracting and the wage rates for newly created jobs. In sum, having considered Respondent's entire course of conduct which began in the early stages of the Union 's organizational campaign and continued through- out the entire period prior to the hearing, I conclude that it did not enter negotia- tions with a "sincere desire" to reach agreement on all issues and in a "spirit of amity and cooperation ." N.L.R.B v. Atlanta Broadcasting Company, 193 F.2d 641, 642 (C.A. 5). I find, therefore, that Respondent violated Section 8(a)(5) and (1 ) of the Act by failing to bargain in good faith with the Union.70 In its brief, Respondent argues that it demonstrated its good faith by, inter alia, promptly reinstating most of the strikers and by hiring or offering to hire most of the others as new employees , either in early May or at the hearing in July. The short answer to this contention is that only a handful of jobs had been filled during the strike so that its liability , if it did not reinstate the strikers, upon unconditional application, would be clear even if the strike was purely an eco- nomic one . By the same token, having been unable to hire many replacements, the 'Company had to reinstate most of the strikers or continue to operate with only the supervisors and a comparatively few employees just at the time its busy season was about to begin. 3. The Company's unilateral action on March 30 and April 7 As set forth supra, the Company described its October 1964 decision to with- hold 90-day raises as a decision not to give them until after the election lest it be charged with seeking to interfere with the election. However, the Company did not start giving those raises once the election was over and gave no 90-day raises until March 30, 1965. On the other hand, the Company continued to give the 45-day raises both before and after the election and the certification of the Union and no unfair labor practice charge was ever filed based on those raises. The Company defends the March 30 raises on the ground that the negotiations, 70 In its brief, Respondent claims that the items in disagreement had been "reduced from 32 to 3." However, it admits elsewhere that no agreement was reached "on the economic items, checkoff, departmental seniority and the right to subcontract " Of course, the eco- nomic items which it counts as one point of disagreement, included not only wages but numerous other items such as insurance, vacations, holidays, and various aspects of over- time The Company also ignores the fact that seniority came up in connection with a num- ber of subjects such as the right of foreman to "bump" unit employees and that "subcon- tracting" Included plant closure and wage rates for new jobs. (14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at least with respect to this subject , had reached an impasse . In its brief, Respond- ent repeatedly rests this argument on the fact that White had asked the assistance of the Mediation Service. But this action is wholly inconsistent with a claim that White believed that further negotiations would be futile . On the contrary, White's conduct and the fact that further meetings were held at the Union's request demonstrate the Union's belief that additional meetings might bring about agree- ment. And the Company knew, when it gave the increases , that White was trying to schedule another meeting. In fact , May testified that White said he felt that an "impasse had been reached," adding, "and the Federal Mediator could help us reach an agreement , I guess." As noted previously , there is no claim that the Company suggested to the Union, on March 25 or any other time, that there was an impasse in negotia- tions and that it would be useless to meet again, and May expressed the opinion at the hearing that the Union was "awful stupid " in calling a strike when the parties were negotiating , when mediation was coming up, and "I thought [we were] making progress all along, with the exception of a couple of items." As noted supra, nothing in the Company's March 30 letter, either to the employees or to the Union, indicated that it was acting because negotiations on the subject of periodic increases had reached an impasse. Although White had used the word "impasse," he is not an attorney and even experienced labor lawyers frequently use the word loosely to mean that no progress is being made. Cf. Industrial Union of Marine and Shipbuilding Workers v. N.L.R.B., 320 F.2d 615, 62], footnote 6 (C.A. 3), cert. denied 375 U S 984. More importantly, in order to justify action by the Company, it is necessary that the impasse was reached only after good-faith bargaining. As the court noted in the above case, "there can be no legally cognizable impasse . . . if a cause of the deadlock is the failure of one of the parties to bargain in good faith." Finally, full discussion, with whatever explanations are required by the particu- lar situation, is a condition precedent to impasse. As noted supra, there is no claim that the Company explained that it was continuing to give the 45-day raises or told the Union the reason, asserted at the hearing, for giving the one but not the other. And as found above, the Company did not explain its periodic increase plan to the Union and the subject was never discussed, the only reference to it being a passing exchange as the parties were leaving one of the meetings. Having considered the absence of negotiations about the raises, the Company's failure to claim, prior to the hearing, that an impasse had been reached, White's actions in seeking and obtaining further meetings on and after March 25, the Company's failure to bargain in good faith generally and with respect to wages in particular, I find that there was no "legally cognizable impasse" which justified the Company's giving the March 30 raises. Respondent also argues that the Union acquiesed in the withholding of the raises although this argument is at least in part self-defeating for even if it is assumed that the Union did acquiesce either in fact or in law, it is clear from Respondent's own testimony that the Union did not change its mind and agree that the Company could give the March increases. As the facts disclose, the 90-day raises were first withheld about a month before the election and about 6 weeks before the Union was certified. During this period, the Union was not the representative of the employees and, therefore, could not have waived the employees' right to continue to receive the raises they would have received but for their efforts to obtain union representation Although it is clear that White became aware, after the Union was certified, that the Company had given increases based on time worked, that some employees had received raises and others had not, and told one employee that he agreed that the Company could not give "a raise" (emphasis supplied ) until a settlement was reached with the Union, there is no evidence that he knew the "pattern" of the raises , or knew the nature of those given and those withheld, or knew why the Company was giving some and not others. Respondent argues that the Union's charge after the March increases proves that it would have filed a charge had the Company given the 90-day raise throughout. But the fact remains that the Union did not file a charge based on the 45-day raises which were never discontinued. One inference that could be drawn from this fact is that if the Company had given the 90-day raises throughout, the Union would not have filed a charge. Another is that the Union did not know that the Company was giving the 45-day raises regularly and it is, of course, undisputed that the Company never advised the Union of this fact. MAY ALUMINUM, INC. 6155 Moreover, there is no evidence that the Company knew about the conversation between White and employee Lopez which means, of course, that it did not rely, even in part, upon White's statement , when it decided (well before the conversa- tion) to withhold the 90-day raises. Although the Company told Lopez that it could not give raises until after a "settlement " had been reached with the Union, there had been no settlement in March. Indeed, the very absence of an agreement (impasse) is one of the Company's major defenses. Nor does the fact that the Union filed a charge based on the March increases prove that it would have filed a charge in December 1964-January 1965 if the Company had explained at that time its periodic increase policy, its reason for withholding the 90-day raises, and indicated it would like to give them again. The approximately 90 March 30 increases came without prior notice or bargaining for the Company did not tell the Union at the March 25 meeting that it intended to give the raises but, on the contrary, told the Union that it would give no gen- eral increase. See also the Company's March 30 letters which do not refer to negotiations on the subject or prior notice of its intention to reinstitute the raise. In other words, the Union's reaction to the March 30 increase was based on the situation which existed on that date including its lack of accurate information about the Company's periodic increase practice, its lack of notice that raises were about to be given to 90 employees , its objections to a sudden , mass wage increase after the Company's statements a few days earlier, the Company remarks about its promise to (agreements with ) the employees individually , and the timing of the increases; i.e., a few days after the Union had announced a strike-vote meeting. In sum, the gravaman of the charge was that the Company had acted uni- laterally and the Company's assertion that the Union would also have objected if the Company had explained its practice to the Union and negotiated about it at the outset or during the course of negotiations is both speculative and immaterial. And, as noted supra, the Union never filed a charge based on the granting of the 45-day increases which, of course, did not constitute a sudden change, in the course of bargaining, in the wage rates of approximately 90 employees . Needless to say, it would scarcely improve the Company's legal position to explain the Union's failure to file such charges on the ground that it did not know about those mcreases or that they had been given regularly. Two events occurred between the granting of the increases on March 30 and the recission of the increases on April 7. One was that the Union filed a charge and the other was that, despite the March 30 increases, the employees voted over- whelmingly to strike. On the other hand, two things did not occur between March 30 and April 1. One was that there was no effort by the Company to explain its March 30 action to the Union or to make any effort to negotiate with the Union about the 90-day raises. The other was that the Company did not notify the Union that it had decided to rescind the increases, a fact which was known to the Company only . In short, Respondent's reply to a charge of unilateral action was another unilateral act. The Company argues that the failure of the Union to bring up the subject of the raises during negotiations, although it was aware generally that some wages were being given and others were not, constitutes acquiscence in the Company's withholding of the raises or a waiver of its right to bargain with respect to them. However, the record falls short of establishing that the Union had complete and accurate information with respect before and after October 1964, or that the Company had good cause to believe that the Union had such information, or that it was for this reason alone that the Company failed to mention its past practice, its current practice, and its intention to reinstitute the 90-day raises. Cf. N.L.R.B v. Brown-Dunkin Company, Inc., 287 F.2d 17, 20 (C.A. 10). Because the Act is designed to protect public rather than private rights, it is well established that a union will be found to have waived the rights established by the Act only upon clear and unmistakable evidence. Cf. Timken Roller Bearing Co. v. N L.R B., 325 F.2d 746, 751 (C.A. 6), cert denied 376 U.S 971, enfg 138 NLRB 15. In each of the cases cited by the Company, the employer had notified the union about the proposed change and either invited its comments or offered to "discuss" or "explain" its plans. Although White knew generally that increases were given on the basis of time worked and that some employees had received increases and others had not, the record does not warrant a conclusion that he knew to which employees the practice applied, or that the 45-day raises were being given regularly but not the 90-day raises, or when or why the Company decided to continue the former and 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discontinue the latter. As noted supra, the Union's officers worked in the die shops and the periodic increase policy never applied to the employees in those shops. And May himself expressed the opinion that Local President McElroy knew little if anything about conditions outside of his own little "bailiwick." Some of this information, but not all, could have been obtained by the Union by questioning the employees in every department (who were employed before the petition) about their understanding of the Company's pre-November 1964 policy, by questioning the employees in every department, after the petition, about what raises they had received and when they had received them. To compile fairly accurate information by this means would require the cooperation of a substantial percentage of employees in each department and considerable record keeping. Cf. N.L.R B. v. Brown-Dunkin, supra, in which the court commented on the fact that the union's only knowledge came from the employees and was far from complete. And not even Respondent contends that the Union agreed that the company could give the March 30 raises and, of course, the Union had no advance knowledge that they were about to be given or, later, that they were going to be rescinded. Finally, the March 30 raises and their cancellation on April 7 were events in a chain which began in October 1964, a month before the election, and the entire problem was created by the Company's decision to withhold the 90-day raises when the petition was filed, which constituted an unfair labor practice which occurred well before the Union became the representative of the employees. The reason for the decision was not explained either to the employees in October or to the Union later. The March 30 raises followed the Company's failure to bargain about wages and its flat statement that the rates would be those established by the Company's promises to (agreements with) the employees. For the reasons set forth above, I cannot find that the Union had sufficient information to warrant the conclusion that it acquiesced in the Company's with- holding of the 90-day raises from late October 1964 to March 30, 1965. Most certainly, the Company cannot argue that it decided, in October, to withhold the raises because of anything the Union did or did not do and, in view of all the facts, I cannot find that it continued to withhold them only or even primarily because of anything the Union did or did not do. In fact, in its March letter to the employees, the Company explained the withholding of the raises not on the grounds of anything that happened or did not happen during negotiations but stated only that they had been withheld "because of the Union's organizational campaign"; i e., the events which occurred before the Union was certified. As in most Board cases, the conclusions reached depend upon the Respondent's entire course of conduct and the reasonable inferences which can be drawn from what it did or did not say, did or did not do while the events were taking place, and the context in which the various events occurred. Having considered the entire record, including the Company's attitude toward the Union and collective- bargaining generally, the fact that the raise problem was created by the Com- pany's unfair labor practice a month before the election, the Union's lack of complete and accurate information about the raise practices before and/or after the petition was filed, the Company's failure to bargain in good faith, its failure to supply information on request, the fact that the Company did not withhold the raises originally or thereafter because of anything the Union did or did not do, the absence of an impasse in the bargaining generally or about the raises in particular, the timing of the increases and their cancellation a week later, the Company's position that wage rates had been established by its promises to (agreements with) the employees, its demonstrated preference for dealing with the employees individually in other respects, its statement that it was none of the Union's "goddamn business" when asked if it was pleading inability to grant a general wage increase, the absence of prior bargaining with or notice to the Union either before the increases were given or were canceled, I conclude that the grant- ing of the increases on March 30, after a strike vote was announced, and their cancellation on April 7, after the employees voted overwhelmingly to strike, were motivated by the Company's hostile attitude toward the Union, its preference for dealing with the employees individually, its position that the wage rates had been established by its promises to the employees, and a desire to undermine the Union's position and prestige. The same facts also convince me that the Company did not rescind the increases in an attempt to remedy an alleged unfair labor practice but instead seized upon the charge as an excuse to rescind the increases which had failed to prevent the employees from voting to strike. Cf. Albuquerque Phoenix Express, 153 NLRB 430. Under these circumstances, I cannot find that MAY ALUMINUM, INC. 617 the Company's unilateral action in granting the increases was cured by its sub- sequent unilateral action in rescinding them or that the filing of a charge of unilateral action justified another unilateral act by the Company. It follows, there- fore, and I find that a preponderance of the evidence on the record as a whole supports the allegations of the complaint that Respondent refused to bargain with the Union, in violation of Section 8(a)(5) and (1) of the Act, by unilaterally granting the March increases and by unilaterally rescinding them on April 7. 4. The conclusion that the strike was an unfair labor practice strike There is no evidence that the Union had considered calling a strike until after the company-union meeting on March 25. The Union had been certified for nearly 4 months and the March 25 meeting was the eleventh between the parties since the negotiations began in early January. The non-monetary clauses in the Union's proposed contract had been discussed twice, some agreements had been reached and the Company had made some counterproposals. However, little or no progress had been made in reaching agreement on such clauses as seniority, checkoff, and subcontracting. After almost 3 months of negotiations, important clauses such as the management rights clause had not been discussed because President May wanted to check them with his attorney. The Company had refused to agree to tell the Union the reason why an employee had been disciplined or discharged and' when a question about the delivery man came up, May had threatened to take him out of the unit. On March 25, the subject of wages was discussed for the first time and Presi- dent May stated that he would say "damn quick" that he was not going to do a^ "damn" thing about wages, that he was going to pay the employees exactly what he had promised them when they were hired. He reminded the Union that it had' made promises of its own and invited it to make good on them. When it was suggested that the jobs be evaluated by an arbitrator, May said he would evaluate his own jobs. Immediately after the March 25 meeting, Union Representative White prepared notices scheduling a union meeting to take a strike vote. However, the meeting was not to be held immediately but on April 1, a week later. In the meantime, White called the Mediation Service and asked that one of its representatives schedule a company-union meeting and be present to assist the parties in reaching agreement. Copies of the strike-vote meeting notice were given to Personnel Manager Bur- gess and on March 30, 2 days before the date for the strike-vote meeting, the Company granted approximately 90 wage increases, some amounting to 2% cents and some to 5 cents an hour. When the Union meeting was held, White described the negotiations generally and asserted that the Company had refused "completely" to negotiate about wages, pointed out that it gave them raises, and expressed the opinion that a strike was the only way the Union could get the Company to negotiate in good faith. Local President McElroy told the men that the Company had said it would evaulate its own jobs, that it was going to pay exactly what it had promised the employees when they were hired, referred to the Union's lack of information about these promises, and the absence of advance notice that raises were going to be given. In his opinion, McElroy said, the Company was "just more or less refusing to recognize the Union," had decided to "go round the Union" and was going to deal with the employees individually. The employees voted to strike by 88 to 2. But, again, no date was set and, in fact, the strike did not begin for another week. In the intervening period, the Union sought to arrange another company-union meeting but was told that no meeting could be held until April 15. It also filed an unfair labor practice charge based on the unilateral wage increase and on April 7, without prior notice to or discussion with the Union, the Company rescinded the increase 71 The strike began on April 8. It has been found that the Company's March 25 statement about wages meant that the pay rates had been established when the Company made promises to (agreements with) the employees, that the rates would be those promised and that bargaining on wages would be futile. It has also been found that the Com- 'a At the March 25 meeting, the Union requested information concerning the cost of insurance but it was never given the information. 618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany's practice of giving periodic increases had not been explained to or discussed with the Union and that, therefore, no "impasse" had been reached which per- mitted the Company to go ahead and give the increases. In addition, it has been found that the Company made no effort to discuss the subject with the Union after the charge was filed but, instead, unilaterally rescinded the wage increases. Having considered the above facts, I find that the Company's refusal to bargain, particularly about wages, and the unilateral increases were the major if not the only causes of the strike and that the strike, therefore, was caused in whole or in part by the Company's unfair labor practices. I also find that the Company's position at the bargaining sessions after the strike began, particularly its repetition of its posi- tion on wages and its proposals on subcontracting, plant closure, and the rates for new jobs, served to prolong the strike. The purpose of all strikes is to exert pressure upon the employer and it is well established that a strike may be an unfair labor practice strike even though the unfair labor practices were not the sole cause of the strike. In short, the fact that the Union may have hoped also to cause the Company to grant increases as well as to cause it to bargain in good faith is immaterial. N.L.R.B. v. Birmingham Publish- ing Company, 262 F.2d 2, 9-10 (C.A. 5). It may also be that even if the Company had bargained in good faith about wages, a strike would have been called eventually if the Union had been unable to persuade the Company to grant a wage increase. However, the Company's actions made it impossible for it or anyone else to say what would have happened had there been good-faith bargaining. 5. The Company's failure to furnish information, on request, and its unilateral transfer of jobs out of the unit, both in violation of Section 8(a)(5) and (1) of the Act As set forth supra, the day the strike ended the Union requested the Company to furnish it with a list of all of the strikers, their rates of pay, dates of hire, and job clas- sifications, at least one reason for its request being that the Union wanted to be able to determine whether the strikers were being returned to their former jobs. It is undisputed that the Company never gave the Union the information about the job classifications and that it gave the other information only a few days before the hearing opened and more than 2 months after the Union requested it. It is well established that the union is entitled, upon request, to information concerning the employees' status and benefits and that an employer' s failure to furnish such infor- mation, upon request, violates Section 8(a) (5) and (1) of the Act. I find, there- fore, that Respondent violated Section 8(a)(5) and (1) of the Act by failing to furnish the Union, on request, the job classifications of the strikers and by failing to furnish the other requested information for more than 2 months. International Woodworkers of America, Local Unions 6-7 and 6-122 v. N.L.R.B, 263 F 2d 483, 484-485 (C.A.D.C.); N.L.R.B. v. Item Company, 220 F.2d 956, 958 (C.A. 5). On May 4, a question came up about the die-shop employees who had returned to work as metal checkers and President May said that "As of right now," the metal checkers were in the engineering department; i.e., a department which is not within the bargaining unit. May's answer was that he had a right to move employees as he wished and that he had always moved them from one job to another and promoted them to nonunit jobs, such as to jobs in the office, and that he did not think he had to bargain about transferring the metal checkers to the engineering department. (At the hearing, May expressed the opinion that he could take such action as long as there was no collective-bargaining contract.) May was failing to distinguish between the routine assignment of employees to different jobs within the unit and the promotion of individual employees to the office which meant that they were no longer in the unit as individuals but did not mean that their former jobs were no longer in the unit. In the case of the metal checkers, May was transferring the jobs out of the unit, thereby reducing the amount of unit work and the effect of his announcement did not differ, in principle, from a sudden announcement that unit work would be subcontracted Moreover, having considered the context in which May made the statement and the Company's entire course of conduct, I find that May's purpose was to avoid having to bargain with the Union about the reinstatement of the die shop employees and to remove the union officers, who worked in the die shops, out of the unit. See, for example, May's charge that the die men had "sabotaged" him, i e, by striking. For the foregoing reasons, I find that the Company violated Section 8(a) (5) and ,(1) of the Act by announcing that it was transferring the jobs of metal checkers out MAY ALUMINUM, INC. 619 of the unit . Cf. N.L.R.B. v. American Mfg. Co. of Texas, 351 F.2d 74, 79 (C.A. 5); Town & Country Manufacturing Company, 136 NLRB 1022, enfd . 316 F 2d 846 (C.A. 5); N.L.R.B. v. Brown-Dunkin Company, Inc., 287 F.2d 17, 20 (C.A. 10). 6. The conclusions with respect to the strikers who were not reinstated It is undisputed that a few days after the strike ended, strikers Frank Foisner, Godfrey Garza, Joskie Jenkins, Donald Jones, Richard Jones, C. L. Miller, Jr., Joe Nunez, John Nunez, and Baldermo Vallejo were hired as new employees because their jobs had been filled during the strike. Because the strike was caused and pro- longed, in whole or in part, by Respondent's unfair labor practices, the Company was required to reinstate all strikers, upon the Union's unconditional application, even if it had to discharge replacements hired during the strike. N.L.R.B. v. E. L. Dell, t/a Waycross Machine Shop, 283 F.2d 733, 741 (C.A. 5). It follows, therefore, and I find that Respondent has never offered to reinstate these strikers to their pre- strike jobs, at their prestrike rates of pay and with all of their accumulated benefits, and that it is under an obligation to do so. As set forth below, most of the other strikers who were denied reinstatement were also denied it because their jobs had been filled and, at most, were offered jobs as new employees, i.e., in the shipping department at the beginning rate of $1.25 an hour without any seniority or other benefits they may have acquired before the strike. In some cases, the strikers were denied reinstatement because they failed to report by the deadlines set forth in the telegrams which failure was caused either by the fact that they did not receive the telegrams or did not receive them promptly. One striker was unable to go to the plant due to illness in the family. Each striker who had received no job offer prior to the hearing, did so at the hearing but the offers made at that time were offers to hire them as new employees. The Company's obligations to the other strikers not offered full reinstatement are set forth below. Dennis Edward Baros did not receive the April 27 telegram but the Union told him, after the 3 p.m. April 29 deadline, to go to the plant and ask to return to work. Baros' baby was seriously ill and he could not go until May 10 at which time he was told that his job was filled. (He had no telephone.) He was told that he would be notified if a job became available but he was not on the list of strikers to whom the May 5 telegram was sent and received no job offer until the hearing. The May 5 telegrams offered the strikers jobs as new employees. Respondent did not claim at any time that Baros' job was filled between April 29 and May 10. Of course, the fact that Baros' job was filled during the strike did not justify the Company's failure to reinstate him. On May 10, Baros told Personnel Manager Burgess that he had not received the April 27 telegram and by going to the plant put the Company on notice that he wanted to return to work. Baros was entitled to reinstatement on the earliest pos- sible date thereafter. Jay Company, Inc., 103 NLRB 1645, 1647 Although Baros and some of the other strikers failed to fill out applications for employment as new hires, unfair labor practice strikers are under no obligation to fill out such applications as a condition for reinstatement. N.L.R.B. v. Ozark Dam Constructors, 203 F.2d 139, 147 (C.A. 8); California Cotton Cooperative Associa- tion, Ltd., 110 NLRB 1494, 1500-01. Zeb William Bennett did not receive the April 27 telegram until the afternoon of April 29 when he got home from work. (Western Union delivered it the day before to Bennett's 8-year-old daughter and no one mentioned it until Bennett asked about a telegram, having heard that others had received telegrams.) He called Burgess between 4 and 5 p.m. on April 29, i.e., an hour or two after the deadline, and Burgess told Bennett that he was "too late" and repeated his statement the next morning. Although there is no claim that the Company had hired a replacement for Bennett in the 2 hours or less between the deadline and Bennett's call, the Company did not send him the May 5 telegram and he received no job offer until the hearing when he was offered employment as a new employee. In the absence of a claim that Bennett had been replaced in the less than 2 hours between the deadline and his call to Burgess, the Company's refusal to reinstate him casts doubt upon its claim that it acted reasonably and in good faith in setting a deadline which allowed a number of the strikers 30 or even fewer hours in fact within which to "apply" for reinstatement, i.e., between the morning of April 28 or 620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD later, when a number of the telegrams were delivered , and the deadline 72 Both the reasonableness and good faith of the Company 's treatment of the strikers is also, negated by its complete lack of interest in the reasons why the strikers were `late" as, for example, their failure to get the telegrams through no fault of their own. As far as Respondent was concerned, it was enough that they were "late" if only by a few hours although their jobs had not been filled in the intervening period. As in the instant case , telegrams and mail are not always delivered promptly or at all, the addressees may be away from home because they are looking for or have found work elsewhere . They may not know where they will be or may not have made arrangements for their families to notify them that a telegram has been received particularly if, as one striker put it here , they have no reason to expect a prompt job offer from the Company. In addition , their families may not have the money to pay for a long distance call and /or the strikers may not have the money to pay for a long distance call to the Company. On the other hand , if they stay at home waiting for word from the Company, they may be accused of willful idleness. Having considered the absence of a claim that Bennett 's job was filled between 3 and 5 p.m. on April 29, the fact that Bennett called promptly upon learning about the April 27 telegram thereby putting the Company on notice that he wanted his job back, and Respondent's position that the strikers were disqualified if they missed the deadline by even a few hours , without regard to the reason, I conclude that Bennett was not afforded a reasonable period within which to "apply" for reinstate- ment and that he was entitled to reinstatement at whatever time he would have returned to work had he called Burgess before the deadline. Western Union, the agent selected by Respondent , must have known that a tele- gram delivered to an 8-year-old child might not be delivered to her father promptly or perhaps not at all. But Respondent 's attitude toward Bennett's late application shifted the penalty for the late receipt of the telegram to Bennett in a situation in which he was in no way at fault and in which his statutory rights and the Com- pany's obligation to offer him reinstatement were involved. Norman Brandl received the April 27 telegram , went to the plant before the deadline and was told his job was filled . The May 5 telegram, offering him a job as a new employee , was mailed to him but he did not receive it and he did not learn that other strikers had received telegrams. As an unfair labor practice striker, Brandl was entitled to reinstatement even if his job had been filled and it was Respondent's failure to reinstate Brandl on or about April 29, on the ground that his job was filled, that necessitated the sending of the May 5 telegram. In other words, to allow the Company to rely successfully upon Brandl's failure to come to the plant because he did not receive the May 5 telegram, would mean that it would profit by its own failure to meet its obligation on April 28 and, instead , would permit the Company to shift the resulting losses to the employee whose rights it had violated by failing to reinstate him within a reasonable time after he went to the plant on April 28. Moreover, even if Brandl had received the May 5 telegram, he would not have been offered full reinstatement, i.e., to his prestrike job at his old rate and with all accumulated rights, but only a job as a new hire. To require a striker to accept less. than full reinstatement or lose his right to reinstatement and backpay would encour- age employers to offer strikers less than full reinstatement in the hope that they would decline the offers and thereby terminate or, at least, reduce the employer's liability. Such a result, of course, would mean that an employer would profit by failing to meet its statutory obligation to offer full reinstatement to unfair labor practice strikers . In addition, if strikers were required to accept less than full rein- statement, all employees would be put on notice that the company might penalize them in the future, barring litigation, if they exercised their rights under the Act, including the right to engage in an unfair labor practice strike. Having failed to offer Brandl reinstatement when he went to the plant on April 28, I conclude that the Company's obligation to reinstate him continues until a full offer of reinstatement is made. Benito Delgado went to the plant before the April 29 deadline and was told his, job was filled. He heard about the May 5 telegram , again went to the plant before the deadline and turned down a job as a new employee. As indicated previously, the Company was required to offer Delgado full reinstatement when he first went Ti Respondent must have known that a number of strikers did not have telephones, that others lived outside of the delivery area and that their telegrams would have to be mailed to them, MAY ALUMINUM, INC. 621 to the plant, even though his job had been filled and to permit the Company to avoid all further liability or to reduce its liability by offering less than full rein- statement would encourage employers to make such offers in the hope that they would be turned down. As a matter of fact, offers of less than full reinstatement are in themselves violations of Section 8(a)(3) of the Act. California Cotton Coop- erative Association , Ltd, 110 NLRB 1494, 1500. See also N.L R.B. v. Armour & Co., 154 F.2d 570, 577 (C.A. 10 ). Accordingly, I conclude that Respondent is required to offer Delgado full reinstatement. Eliborio Delgado received the April 27 telegram , went to the plant before the deadline, and was told his job was filled . He did not receive the May 5 telegram and did not know others had received them. This is another case in which the situ- ation was created by the Company 's failure to reinstate Delgado when he responded to the April 27 telegram . If it had done so, a second telegram would have been unnecessary . And, again, even if the May 5 telegram had been received , it offered Delgado less than full reinstatement; i.e., employment as a new employee . In short, Respondent has never offered Delgado full reinstatement and is obligated to do so. Rayfield Gardner received the April 27 telegram, went to the plant before the deadline, and was told that his job had been filled. Although the May 5 telegram was delivered to his home , he was working 100 miles away and did not get it until after the deadline. As a result, he was unable to "apply" on time and, from the experience of Bennett , supra, it would have been futile for him to "apply" after the deadline . He did call the plant twice, was told Burgess was not there , to leave his name and address, and that Burgess would call him . Burgess did not call Gardner. Again, it was only because Respondent failed to reinstate Gardner when lie went to the plant in response to the first telegram, that a second telegram was necessary . Moreover, the May 5 telegram would have offered him employment only as a new employee. Gardner is entitled to an offer of full reinstatement, an offer which admittedly has never been made. Geronimo Gonzales was also told on April 28 that his job was filled and the second telegram was necessitated only by the fact that he was not promptly rein- stated when he went to the plant originally . Likewise , the second telegram was .only an offer of a job as a new employee so that even if he had not been out of town and had reported by the deadline stated therein, he would still not have been offered full reinstatement . It follows, therefore , as in the other cases, that Gonzales has never been offered full reinstatement and is entitled to such an offer. Jesse Lopez, Jr., is the striker who was persuaded by the "boys" in the plant to return to work and did so for 1 night. He "just didn't feel good" about working while his friends were striking but decided to stay once he was there. He was assigned to the job of an absent employee and was told that another job would be found for him when that employee returned . As Lopez' foreman was coming to work the next afternoon , Lopez was on the picket line and it is undisputed that he told the foreman that he would not be working that night. Although the Company did not send Lopez either telegram , he saw a copy of the first one and went to the plant before the deadline . He was told by Personnel Manager Burgess that he was "fired ," apparently because he had worked 1 night and had not reported that he would not be back again . Lopez replied that he had told the foreman but Burgess said he had received no report . Burgess also said that Lopez' job had been filled but gave him an application and told him that he would be recalled when there was an opening. Lopez filled out the application and returned it to a secretary after being told that Burgess was busy. Respondent offered no explanation , either at the hearing or in its brief, for its failure to recall Lopez. Of course, the fact that his job was filled, as he was told by Burgess, is immaterial, the strike having been an unfair labor practice strike. If, as Burgess also asserted , Lopez was "fired" for not having told his supervisor that he would not report for work, after having worked one night during 'the strike, it is undisputed that Lopez did tell his foreman. - Lopez' return to work for 1 night during the strike clearly was not for the pur- pose of harrassing the Company and, equally clearly, he was not attempting to set his own work schedule, as opposed to the one established by the Company. As he put it, he needed to work, he was talked into returning for I night but he did not feel "right" about doing so and rejoined the strike . If Respondent's position eventu- ally is that Lopez was "fired" for resuming his status as an unfair labor practice striker, it is without merit. Cf. N.L.R B. v. West Coast Casket Co., 205 F:2d 902, 908 (C.A. 9). 622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In sum, Lopez was an untair labor practice striker who was entitled to reinstate- ment, upon unconditional application, even if his job had been filled and his return to work for I night did not justify the Company's failure to offer him a job when he went to the plant before the first deadline. Respondent's obligation to offer Lopez reinstatement continues until such an offer is made. Michael Malandrakis received the first telegram, reported before the deadline and was told to call the next day because Burgess had not yet determined whether Malandrakis' job was open. His job was available but when he called the next day, he was told that Burgess was out. However, he left his name and address and was told that Burgess would call him. He called a second time a day or two later but was told again that Burgess was not available and again left his name. About 11/z or 2 weeks after the strike, he went to the plant and was told again that Burgess could not see him. Malandrakis was given an application to fill out and as he was doing so, he spoke to Burgess but the latter said nothing about reinstating Malandrakis. As noted supra, the Company treated the Union's unconditional application for reinstatement as nothing more than a notice that the strike was over, required the strikers to apply individually and made no effort to determine whether a striker's job was available until he had told the Company, in person, that he wanted to return to work. But for Respondent's attitude, Malandrakis would have been told, when he came to the plant before the April 29 deadline, when to report to work and it would not have been necessary for him to call or come in a second time. Malandrakis was working in the oil fields and the requirement that he come to the plant twice and keep coming or calling until he reached Burgess (as claimed by Burgess) worked some hardship on him. Moreover, it is undenied that when he called the plant, he was told in fact to leave his name and address and that Burgess would call him. Finally, he was not reinstated when he both talked to Burgess and filled out his application 2 weeks or less after the strike ended. On the basis of the above facts, including the requirement that he apply in per- son, which was the reason why a second call was necessary, the Company's placing of the burden on Malandrakis, after one call, to keep calling to find out whether he would be reinstated, his instructions to leave his name and Burgess would call him, the Company's failure to reinstate Malandrakis even when he talked to Burgess and filled out an application, I conclude that the Company did not fulfill its obligation to. offer Malandrakis reinstatement after an application both by the Union and by Malandrakis in person. Its obligation continues until an offer is in fact made. Lee Roy North learned about the first telegram about 10:30 p.m. on April 28. Because there was no one else to stay with his five, small children on April 29, he did not get to the plant before the deadline. When he got there a few hours late, Burgess had gone and he returned the next day and explained to Burgess that he could not get to the plant the day before. Burgess told North that his job was filled. However, there is no claim that North's job had been filled between the deadline and his conversation with Burgess on April 30. He was offered no job until the hearing when the Company offered to hire him as a new employee. Again, it is clear that North would not have been offered full reinstatement if he had been able to go to the plant before the deadline. It follows, therefore, that his inability to report before the deadline was not the reason for the Com- pany's failure to fully reinstate him. North has never been offered full reinstate- ment and the Company's obligation continues until such an offer is made 73 In sum not a single striker turned down a firm offer of reinstatement and the Company was prepared to offer only one of the strikers named in the complaint full reinstatement. In most cases, the strikers made timely applications, even under Respondent's own standards, but were denied reinstatement on the ground that their jobs were filled thereby creating the necessity for the second telegram. Moreover, except in the case of Malandrakis, the strikers would have been offered' only jobs as new employees which offers constituted a violation of Section 8(a)(3) and (1) of the Act. California Cotton Cooperative Association Ltd., 110 NLRB 1094, 1500-0174 A similar problem was discussed by the court in N.L.R.B. v. Armour & Co., 154 F.2d 570, 577 (C.A. 10), in which the employer offered employees lower 73 As noted supra, the names of four strikers were stricken from the complaint at the hearing. Strikers Joskie Jenkins and C L Miller, Jr., were discharged in June and the Company's liability in their cases ended at that time. 74 In its brief, Respondent does not discuss the situation of each individual striker but argues only that the strike was an economic strike and that it acted reasonably. MAY ALUMINUM, INC. 623 paying jobs because of their continued interest in the union. Some of them refused the offers and the court agreed with the Board that they had been discriminatorily discharged. The court also went on to say: The [Board's] order directed Armour to make [the employees] whole by payment to each of them a sum of money equal to that which he or she would have normally earned [between the dates on which they refused the lesser jobs and] the date of the offer of reinstatement, less [their] net earn- ings during such period. Counsel for Armour contend that credit should be allowed for earnings such employees would have earned at the jobs offered to them by Armour . . . But [the] employees were not required to submit to the discrimination as the price for Union affiliation. They were in effect dis- charged from the jobs they were entitled to hold. Under the circumstances, their refusal to accept the discriminatory jobs was not willful. While they should be charged with earnings actually received and with earnings not received because of the unjustifiable refusal to take desirable new employ- ment, they should not, in our opinion, be charged with the earnings they would have received at the discriminatory jobs proffered them. As pointed out above, any other holding would encourage employers to offer employees who had exercised their statutory rights less desirable jobs in the hope that they would turn them down, as they did at Armour. Such a result would defeat, rather than effectuate, the policies of the Act and would allow an employer to profit from his own failure to meet his statutory obligation to offer full rein- statement to unfair labor practice strikers upon an unconditional application by the union or even in person. In addition, the time allowed in which to apply was so short that it was almost certain that any delay in the delivery or receipt of the telegrams would mean that the strikers would be unable to make a timely (and legally unnecessary application) in person. Moreover, the Company enforced the deadlines strictly without regard to the employees' reasons for not making the deadlines even though there is no evidence that it had hired replacements in the period between the deadlines and the appearance of the strikers at the plant.75 And the May 5 telegrams, even if received, did not offer reinstatement but only jobs as new employees. As a defense to its failure to reinstate the strikers after the Union's uncondi- tional application, the Company argues that Union Representative White was not authorized to make an unconditional application on their behalf because the meet- ing at which he was authorized to act was not conducted in accordance with the Union's constitution and bylaws. This contention, even if factually correct, is clearly without merit for the manner in which the Union conducts its internal affairs is no concern of the Company. Cf. M & M Oldsmobile, Inc., 156 NLRB 903. Moreover, White had been the chief spokesman for the certified bargaining representative in the negotiations which had been in progress for months. In addi- tion, following his unconditional application, virtually all of the strikers in fact went to the plant immediately, many of them even before the Company's April 27' telegrams were delivered. These facts provided Respondent with ample evidence that White was speaking for the employees. In any event, when Respondent ques- tioned White's authority, it had no knowledge about the manner in which the meet- ing was conducted and had not the slightest basis for a good-faith doubt that he was authorized to make the application. Thereafter, the Company issued its April 27 invitations to the strikers to apply for reinstatement in person and in every case the strikers named above in fact did so, most of them immediately and the remaining few as quickly as the circum- stances permitted. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of the Act. 3. On and after December 1, 1964, the Union was the certified bargaining representative of Respondent's employees in an appropriate bargaining unit. 76It is clear that all or most of the strikers who reported before the April 29 deadline were reinstated on Monday, May 3, which means that those who reported after the dead- line would not have been reinstated until Monday anyway. In other words, the fact that they were a few hours or even a day late in reporting in no way inconvenienced the Company. 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. By discontinuing the 90-day raises after the Union filed its petition in Octo- ber 1964, by telling employees that they would be "through " or fired if they went ,on strike , and by telling a striker that the strikers had lost their rights and that their prospects of promotion were slim, Respondent engaged in conduct which interfered with, restrained , and coerced the employees in the exercise of the rights guaranteed them by the Act in violation of Section 8 (a) (1) of the Act. 5. By refusing to bargain about wages , by failing to bargain in good faith with the Union, by unilaterally granting wage increases on March 30, and by unilater- ally rescinding them on April 7, Respondent violated Section 8(a)(5) and (1) of the Act. 6. The strike was caused and prolonged , in whole or in part, by the Company's unfair labor practices and was, therefore, an unfair labor practice strike. 7. By failing to furnish the Union with information upon request and by trans- ferring a job classification out of the bargaining unit, without prior notice and bargaining and in order to avoid bargaining and because the employees were the officers of the Union , Respondent also violated Section 8 (a) (5) and ( 1) of the Act. 8 By failing to reinstate certain unfair labor practice strikers , after an uncon- ditional application by the Union and even after an unconditional application by the strikers individually, Respondent violated Section 8(a)(3) and ( 1) of Act. 9. Respondent engaged in no unfair labor practices other than those summarized in paragraphs 4, 5, 7, and 8, above THE REMEDY Having found that Respondent engaged in various unfair labor practices, the Recommended Order will direct Respondent to cease and desist therefrom and to take the affirmative action normally ordered in such cases . However, it appearing from Respondent's brief that a collective-bargaining agreement was subsequently signed, some provisions normally included have been omitted. Because Respondent withheld 90-day increases from its employees because they sought to be represented by a union , the order will direct it to make whole, with interest, any and all employees who failed to receive the 90-day raises they would have received but for their union activity , i.e., in the period between the date on which the last such increase was granted and the date on which the practice was resumed. However no liability exists after the effective date of the collective- bargaining contract . N L.R.B. v. Zelrich , 344 F.2d 1011 (C.A. 5). Because Respondent has demonstrated its unwillingness either to furnish at all or to furnish within a reasonable time information requested by the Union concerning the employees' job classifications and other information concerning the employees' status and benefits, the order will direct Respondent to furnish such information on request. Because Respondent's conduct in granting wage increases on March 30, in rescinding them on April 7, and by transferring lob classifications out of the unit constituted unilateral action, the order will direct Respondent not to act unilater- ally except to the extent, if any, permitted by a current collective -bargaining agree- ment. Needless to say, this provision will not apply during any period in which there is no statutory bargaining representative. Having violated the Act by transferring the jobs of metal checkers out of the unit, the order will direct Respondent to return those jobs to the unit and if it still wishes to transfer them out of the unit, to so notify the Union and bargain with it, on request. Because of Respondent's failure to bargain in good faith , its unilateral action, its threats of reprisals because of union activity , its discriminatory failure to rein- state certain strikers after an unconditional application, which goes to the very heart of the Act, it is reasonable to conclude , as I do, that Respondent may deny its employees their statutory rights in these and other ways in the future, in the absence of a broad order . The Recommended Order, therefore , will direct Respond- ent not to discriminate against its employees in any manner or in any manner deny them their statutory rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Because the Company refused and failed to reinstate certain unfair labor prac- tice strikers upon the unconditional application of their bargaining representative and even after they applied individually , it will be ordered to offer them imme- diate and full reinstatement to their former or substantially equivalent jobs with all seniority and other benefits they enjoyed before the strike and would have accumulated between the dates on which they were denied reinstatement and the MAY ALUMINUM, INC. 625 dates on which they were offered full reinstatement. The order means, of course, that Respondent is required to reinstate the strikers even though in order to do so, it will have to discharge replacements hired during the strike or transfer them to other jobs. The order will also direct Respondent to make whole the strikers not fully rein- stated and/or not offered reinstatement for any losses they may have suffered as a result of the Company's failure to reinstate them within a reasonable period after the Union's unconditional application for reinstatement on April 27, 1965. Any backpay due will be determined in accordance with the formulas set forth in F. W. Woohvoi th Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Although the strikers were not required to accept discriminatory "reinstatement," some of them chose to do so in early May and others apparently did so during the hearing. In these cases, Respondent's liability for backpay after the discriminatory "reinstatement" will be the difference between their actual earnings and benefits and those they would have received but for the Company's failure to reinstate them fully. The periods during which Respondent is liable for backpay to the strikers who either have never been offered full reinstatement and/or refused offers of less than full reinstatement are as follows: Dennis Edward Baros made it known to the Company on May 10, 1965, that he wanted to return to work and the Company's liability will begin on that date and will continue until he is offered full reinstatement. Jay Company, Inc., 103 NLRB 1645, 1647: If he accepted the discriminatory job offer made during the hearing, the Company's liability thereafter will be the difference between his actual earn- ings and benefits and those he would have received if he had been reinstated fully. Zeb William Bennett went to the plant on April 29 and 30 thereby notifying the Company that he wanted to return to work. There being no evidence that his job had been filled between the April 29 deadline and the time he reported, the Com- pany's liability continues until he is offered full reinstatement. If he accepted the discriminatory offer made at the hearing, Respondent's liability thereafter will be determined on the same basis as provided in the case of Baros. Norman Brandl went to the plant before the first deadline and was denied rein- statement on the ground that his job was filled thus creating the necessity for the second telegram which he did not receive. His only job offer from the Company was the one made at the hearing. The Company's liability continues until it offers him full reinstatement; however, if he accepted the discriminatory offer, the for- mula for computing liability thereafter will be the same as in the other cases. Benito Delgado notified the Company, in person, on or before April 29, that he wanted his job back, was offered discriminatory "reinstatement" on the ground that his job` had been filled. Accordingly, the Company's liability continues until an offer of full reinstatement has been made subject to the reduction allowed in the other cases if he accepted the offer, made at the hearing. Eliborio Delgado went to the plant before the deadline, was refused reinstatement on the ground that his job had been filled, thereby necessitating the second tele- gram which he did not receive. As a result, his only offer from the Company was the one made at the hearing and the Company's liability continues until a full offer is made subject to the reduction previously stated if he accepted that offer. Rayfield Gardner went to the plant promptly, was told his job was filled, thus making necessary the second telegram which he did not receive until after the deadline. His only job offer was the one made during the hearing and the Com- pany's liability continues until he is offered full reinstatement subject to the same reduction if he accepted the offer made during the hearing. Geronimo Gonzales made a timely appearance at the plant, was denied reinstate- ment because his job was filled thereby necessitating the second telegram which he did not receive until after the deadline . His only job offer was the one made at the hearing. The Company's liability is the same as in the case of Gardner. Jesse Lopez, Jr., was not offered a job until the hearing at which time he received the same discriminatory offer made to the others. The Company's liability before and after that offer will be the same as that in the previous cases. Michael'Malandrakis would have returned to work had he been offered his job when ' he went to the plant before the deadline. When he went a second time, he was told Burgess would call him. In short, the first job offer actually made was the discriminatory offer made at the hearing and the Company's liability is the same as in the previous cases. 257-551-67-vol. 160-41 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lee Roy North notified the Company on April 30 that he wanted to return to, work, his job had not been filled, but he was offered no job until the hearing. The Company's liability is the same as in the previous cases. Joskie Jenkins and C. L. Miller, Jr., were discharged in June. However, the Com- pany's liability prior to the discharges is to be determined in the same manner as its liability to the other strikers who accepted the Company's offer to return to, work as new employees. Of course, it does not necessarily follow that the Company's liability to the strikers who refused discriminatory job offers is increased by their action for they may have been working at or may have obtained thereafter jobs which paid more than those offered by the Company. In any event, the Company should not be per- mitted to have its cake and eat it too, i.e., it should not be permitted to engage in unfair labor practices which cause and prolong, at least in part, a strike, to ignore thereafter the Union's application for reinstatement, and to violate the Act again by making discriminatory job offers and then profit, at the expense of the employees, because it offered less than full reinstatement. (Indeed, this is exactly what it did in the cases of the strikers who accepted the discriminatory offers.) It must be remembered that although the Respondent's unfair labor practices were a major cause of the strike, it was always within the Company's power to avoid all backpay liability by reinstating the strikers when the Union made an unconditional application on their behalf or even when they went to the plant individually. Having chosen to do neither, it alone is responsible for its liability to any striker. (As pointed out above, not one striker who received notice to report to work failed to do so.) On the basis of the above findings of fact, conclusions of law, and the entire record, and having considered the brief filed by the General Counsel and the one filed by the Respondent, I issue the following: RECOMMENDED ORDER May Aluminum, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Threatening employees with reprisals if they strike, or because they have engaged in a strike or because they engage in other activity protected by the Act. (b) Withholding, because employees engage in protected activity, any periodic wage increases normally given. (c) Failing to furnish or failing to furnish within a reasonable time information requested by the Union concerning the job classifications, dates of hire, and similar information concerning the status and benefits of employees. (d) Discouraging membership in Aluminum Workers International Union, AFL- CIO, Local 201, or in any other labor organization, by failing to reinstate unfair labor practice strikers, upon unconditional application, or by discriminating in any other manner against employees because they have engaged in activity protected by the Act. (e) Making changes in the terms and conditions of employment of the employees in the bargaining unit and transferring jobs out of the bargaining unit without prior notice to the Union and bargaining with it,-on request, except to the extent, if any, that unilateral action is permitted by an effective collective-bargaining contract. (f) In any other manner failing to bargain with the statutory representative of its employees and interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Furnish the Union, upon request and within a reasonable time, information concerning employee job classifications and other information concerning employee status or benefits. (b) Return the jobs of metal checkers to the bargaining unit and if the Company wishes, thereafter, to transfer them out of the Union, notify the Union of its plans and bargain with it, upon request. (c) Notify the Union and bargain, on request, with respect to any proposed changes in the terms and conditions of employment of employees in the unit unless the Company is permitted to act unilaterally by an effective collective- bargaining agreement. (d) Make all employees whole, in the manner set forth in the section entitled "The Remedy," for any losses they may have suffered by reason of the Company's withholding of the 90-day raises. MAY ALUMINUM, INC. 627 (e) Offer strikers Frank Foisner, Godfrey Garza, Donald Jones, Richard Jones, Joe Nunez, John Nunez, Baldermo Vallejo, Dennis Edward Baros, Zeb William Bennett, Norman Brandl, Benito Delgado, Eliborio Delgado, Rayfield Gardner, Geronimo Gonzales, Jesse Lopez, Jr., Michael Malandrakis, and Lee Roy North full and immediate reinstatement to their prestrike or substantially equivalent jobs with all of the rights and benefits they would have accumulated but for the dis- crimination against them, discharging, if necessary, any replacement hired during the strike. Make each of the above-named strikers and strikers Joskie Jenkins and C. L. Miller, Jr., whole, in the manner set forth in the section entitled "The Remedy," for any and all losses each may have suffered by reason of Respondent's failure to reinstate them within a reasonable time after the unconditional application for reinstatement made by the Union. Notify each of the named employees if pres- ently serving in the Armed Forces of the United States of his right to full reinstate- ment upon application in accordance with the Selective Service Act and the Uni- versal Military Training and Service Act, as amended, after discharge from the Armed Forces. Make available to the Board or its agents all records necessary to determine the amount due each employee. (f) Post at its plant at El Campo, Texas, copies of the attached notice marked "Appendix." 76 Copies of said notice, to be furnished by the Regional Director for Region 23, after being duly signed by the Respondent's representative, shall be posted by Respondent immediately upon receipt thereof, and he maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.77 IT IS HEREBY FURTHER RECOMMENDED that the complaint be dismissed in other respects. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT threaten employees with discharge, loss of benefits, including the chance of promotion, or with any other punishment if they engage in a strike or because they have engaged in a strike or because they engage in any other activity protected by the Act. WE WILL NOT fail to give the periodic raises, if any, normally given employ- ees under the Company's policies or its contract with the Union, because they engage in or have engaged in activity protected by the Act. WE WILL NOT fail to furnish Aluminum Workers International Union, AFL- CIO, Local 201, on request, with information concerning the jobs held by employees and other information about their employment by the Company and benefits they are receiving. WE WILL NOT transfer jobs out cf the 'bargaining unit or make any changes in the employees' pay rates or other terms and conditions of employment with- out notice to the Union, or 'any other employee statutory representative, and without bargaining with it, upon request, unless an effective company-union contract permits such action. 76 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. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" 'for',the NN ords "a Decision and Order." 11 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in or activity on behalf of Aluminum Workers International, AFL-CIO, Local 201, or any other labor organization, by failing to reinstate unfair labor practice strikers to their prestrike jobs, upon the unconditional application of the Union, or by discriminating in any other manner against employees because they engage in activity protected by the Act. WE WILL NOT interfere with, restrain, or coerce our employees in the exercise of their rights under the Act or in any other manner deny them such rights. WE WILL make whole, with interest, all employees who have failed to receive the 90-day increases, which they normally would have received between November 1, 1964, and the effective date of any collective-bargaining contract between the Company and the Aluminum Workers International Union, AFL-CIO, Local 201. WE WILL furnish the Union, upon request and within a reasonable time, information concerning the job classifications of the employees and other information about their employment by the Company and benefits they are receiving. WE WILL notify the Union or any other statutory bargaining representative and bargain on request, with respect to any proposed changes in the wages, hours, or other terms or conditions of employment except to the extent that any company-union contract gives the Company the right to act without prior notice and bargaining. WE WILL return the jobs of metal checkers to the bargaining unit and if we desire to transfer them out of the unit in the future, WE WILL notify the Union of our plans and bargain concerning them, upon request. WE WILL offer each striker listed below, not previously reinstated to his prestrike job, reinstatement to that job or to a substantially equivalent job with all seniority and other benefits he had accumulated before the strike and which he would have accumulated had he been reinstated upon the unconditional application of the Union. Dennis Baros Rayfield Gardner Jesse Lopez, Jr. Zeb W. Bennett Godfiey Garza Michael Malandrakis Norman Brandl Geronimo Gonzales Lee Roy North Benito Delgado Donald Jones Joe Nunez Eliborio Delgado Richard Jones John Nunez Fiank Foisner Baldermo Vallejo WE WILL pay each striker listed below all money he failed to earn or for any benefits he failed to receive because of our failure to reinstate him up to the date on which we offered him full reinstatement to his prestrike or substantially equivalent job with all of his accumulated benefits. Dennis Baros Rayfield Gardner Michael Malandrakis Zeb W. Bennett Godfrey Garza C. L. Miller, Jr. Norman Brandl Geronimo Gonzales Lee Roy North Benito Delgado Joskie Jenkins Joe Nunez Eliborio Delgado Donald Jones John Nunez Frank Foisner Richard Jones Baldermo Vallejo Jesse Lopez, Jr. All our employees are free to become or remain, or to refrain from becoming or remaining, members of any labor organization. MAY ALUMINUM, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston, Texas 77002, Telephone 228-4722.