MacMillan Ring-Free Oil Co., Inc.

MACMILLAN RING-FREE OIL CO. 877 labor organization; provided, however, that nothing contained herein shall be construed as a requirement that we withhold, rescind, or abandon any insur- ance or other benefit heretofore conferred on any employee. WE WILL NOT in any other like or related manner interfere with, restrain, or coerce employees in the exercise of rights guaranteed them by Section 7 of the said Act. WE WILL, upon request, bargain collectively with Garage Employees' Local Union No. 44, International Brotherhood of Teamsters, Chauffeurs, Ware- housemen and Helpers of America, Independent, as the exclusive representa- tive of the employees in the bargaining unit, described above, with respect to their rates of pay, wages, hours of employment, and other terms and condi- tions of employment; and if an agreement is reached, embody it in a signed contract. EVERGREEN RAMBLER, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone 682-4553. MacMillan Ring-Free Oil Co., Inc., a Corporation and Oil, Chemi- cal and Atomic Workers International Union, Long Beach Local 1-128. Case 21-CA-6299. September 2,1966 DECISION AND ORDER On April 13, 1966, Trial Examiner Herman Marx issued his Deci- sion in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. 1-le further found that the Respondent had not engaged in cer- tain other unfair labor practices alleged in the complaint and recom- mended that they be dismissed. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, the Charging Party filed cross-exceptions and an answering brief, and the General Counsel filed cross-exceptions and a reply 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 Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record 160 NLRB No. 70. 878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in this case, and hereby adopts the findings,' conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(c), the present paragraph 2(c) and those subsequent thereto being consecutively relettered: ["(c) Notify the above-described employees if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces." [2. Add the following immediately below the signature line at the bottom of the Appendix attached to the Trial Examiner's Decision : ["NOTE.-Notify the above-described employees if presently serving in the Armed Forces of the United States of their right to full rein- statement upon application, in accordance with the Universal Mili- tary Training and Service Act, as amended, after discharge from the Armed Forces."] ' The Trial Examiner inadvertently stated that Howard Elliott testified that Robert Hunter threw a stone on company property . The record , however, indicates that Phillip Carter so testified. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The complaint, as amended, alleges, in material substance, that the Respondent, MacMillan Ring-Free Oil Co., Inc. (herein MacMillan or the Company), has refused to bargain in good faith with a labor organization as the duly designated representative of an appropriate bargaining unit of the Company's employees, thereby violating Section 8(a)(5) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.; also called the Act herein); has discriminated against employees, in violation of Section 8(a)(3) of the Act, by withholding vacation pay due them, because of their union membership and activities, and by conditioning employment upon withdrawal of employees from union membership; has, by such conduct, abridged rights guaranteed employees by Section 7 of the Act, thereby violating Section 8(a)(1) of the statute; and has, by such unfair labor practices, caused and prolonged a strike among employees of the Company.' The Respondent has filed an answer denying, in material substance, that it com- mitted the unfair labor practices imputed to it, and that its employees engaged in a strike caused or prolonged by any such unfair labor practices. Pursuant to notice duly served on the Respondent and the Charging Party, a labor organization named Oil, Chemical and Atomic Workers International Union, Long Beach Local 1-128 (herein the Local) by the General Counsel of the National Labor Relations Board, a hearing upon the issues in this proceeding has been held before Trial Examiner Herman Marx, at Los Angeles, California. Each of the parties appeared through, and was represented by, counsel, and was afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, file briefs, and submit oral argument. Since the close of the 'The complaint in this proceeding is dated August 11, 1965; was amended on Septem- ber 15, 1965; and is based upon a charge filed on November 10, 1964. Copies of the charge, the complaint, and the amendment to the complaint have been duly served on the Respond- ent. A hearing upon the issues was held in Los Angeles, California, beginning on Novem- ber 3, 1965, and concluding on November 11, 1965. MACMILLAN RING-FREE OIL CO. 879 hearing, the parties have entered into a stipulation amending the transcript of the hearing in the respects set forth in the stipulation , which is hereby made a part of the record. The hearing record contains other transcription errors, but as these do not affect the material facts and issues, I deem it unnecessary, in the absence of a motion by any party, to make any additional amendments to the transcript. Upon the entire record, from my observation of the witnesses, and having read and considered the respective briefs of the parties filed with me since the conclusion of the hearing, I make the following findings of fact: FINDINGS OF FACT 1. NATURE OF THE RESPONDENT'S BUSINESS; JURISDICTION OF THE BOARD MacMillan is a corporation ; is engaged in the business of refining and marketing petroleum products at facilities located in various States, including a plant for refining such products at Signal Hill, California; and is, and has been at all mate- rial times, an employer within the meaning of Section 2(2) of the Act. The issues here center on the Signal Hill plant. In the course and conduct of its business, MacMillan annually purchases and receives directly from places located outside the State of California products, materials, and supplies valued in excess of $50,000, for use at its Signal Hill facility, and annually ships products valued in excess of $50,000 from that location directly to places outside the State of California. By reason of such interstate transactions, MacMillan is, and has been at all times material to the issues , engaged in com- merce within the purview of Section 2(6) and (7) of the Act. Accordingly, the National Labor Relations Board has jurisdiction over the subject matter of this proceeding. It. THE LABOR ORGANIZATIONS INVOLVED The Local is an affiliate of Chemical and Atomic Workers International Union, AFL-CIO (herein the International ). Employees participate in each organization; each exists for the purpose, in whole or in part, of dealing with employers con- cerning wages, hours of work, and other terms and conditions of employment; and each is, and has been at all material times, a labor organization within the mean- ing of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement On July 21 , 1960, based upon the results of a representation election, the National Labor Relations Board (herein the Board) certified the International as the bargaining representative of the employees in a bargaining unit consisting (except for customary production unit exclusions ) of "(a) 11 production and main- tenance employees including stillmen , loaders, laborers and utilitymen, and all lab- oratory testers" employed at the Signal Hill facility. About a month later the Local sponsored a work stoppage in the Signal Hill Refinery to secure satisfaction of a "request" (not explicated in the record), giving the management a little over an hour's advance notice of the stoppage. The par- ticipating employees left their work stations without shutting down the refinery equipment, and returned to work about 15 minutes later when the request was met. On November 18, 1960, the International and the Local entered into a contract with the Company. The agreement, collectively describing both labor organizations as the "Union," stated that the Company recognized the "Union" as the exclusive bargaining representative of a unit of employees substantially the same, for all practical purposes, as the one embraced in the certification described above; pre- scribed wages, hours of work, and other terms and conditions of employment for such employees ; required membership in the International (after the expiration of the statutory grace period) as a condition of employment, and a checkoff of union dues; prohibited strikes, work stoppages , and lockouts during the period of the con- tract, provided there was compliance with its terms, and subject to the exception that employees would not be required to work "under unsafe conditions"; obligated the Union to "use every effort and means at its disposal to prevent the interruption or cessation of work by any of its members"; and provided grievance and arbitra- tion procedures . The contract, by its terms, was to remain in effect until October 31, 1961 , "and from year to year thereafter" subject to prescribed notice provisions for 880 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amendment or termination; permitted each party to "reopen" the wage provisions by serving a prescribed 60-day written notice on the other; and provided that the con- tract would "terminate" if no wage agreement were reached within the 60 days, unless the parties agreed to extend the contract "for a specific period for the purpose of continuing negotiations." (As in the contract and various contract proposals in evidence, the term "Union," as used below, is, unless the context otherwise indicates, a collective reference to the International and the Local.) The Union "reopened" the wage provisions with the requisite notice in Decem- ber 1960, and this led to wage discussions, in which the Company was represented, as well as in subsequent negotiations out of which the issues in this proceeding arose, by a labor relations consultant, Henry W. Becker, and management per- sonnel; and the Union by a representative of the International, George Cody, and a negotiating committee of employees. Throughout all the negotiations rele- vant here, Becker and Cody were the spokesmen for their respective sides. No agreement was reached within the prescribed 60 days, and at some point thereafter in February 1961, to avoid termination of the contract under its "reopener" provisions, the parties agreed to keep it in force subject to a right by either side to terminate it on 72 hours' notice. As of March 8, 1961, the parties were still in disagreement, and on that date, the Union gave the Company the prescribed notice of termination. They agreed, however, on the evening of Friday, March 10, that a "status quo condition" would be maintained over the weekend pending a negotiating meeting scheduled for Monday, March 13. On Friday eve- ning, following the "status quo" arrangement, as Cody testified without dispute, the Company "brought in additional trucks to haul out the finished products on that evening." The Union took that to be a breach by the Company of the "status quo" commitment, and as a result, a work stoppage began Friday night, the employees leaving their posts after about 15 minutes' advance notice to the management by a member of their negotiating committee, and without a prior shutdown of the equip- ment, which continued to operate until brought to a halt, principally by manage- ment personnel, some hours later. As the refinery superintendent, Bruce May, testi- fied, it would take a full crew some 4 or 5 hours to effect an "orderly" shutdown of the refinery operations, and leaving the equipment unattended without previously shutting down the operations in "orderly" fashion creates a hazard of fire and other damage. The Company, May testified without contradiction, "lost about $1,000 worth of products" because operating equipment was left unattended, without a proper shutdown, by the employees who walked out. The employees returned to work on Monday, March 13, and an agreement for wage increases was reached on or about that date, the parties incorporating it as an addendum to the 1960 contract. On April 17, 1961, based upon the result of a representation election, the Board certified the International as the bargaining representative of a unit of employees (and another unit of no relevance here ), consisting of "all plant clericals, including loading clerks and oil house clerks" (with various exclusions that are of no moment). Notwithstanding the separate units embraced by the two certifications, the record as a whole, including a stipulation of the parties at the hearing, and the history of contract discussions and proposals since the second certification warrant a fusion of material portions of both units into one as an appropriate basis for bargaining, and thus I find that "(a) 11 production and maintenance employees, including stillmen, loaders, laborers, utilitymen, and all laboratory testers and loading clerks," employed by the Company at its facility in Signal Hill, California, "excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act," constitute, and have constituted at all times material to this proceeding, a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act .2 2 The unit finding made above follows the stipulation except for the inclusion of loading clerks. The Respondent declined to agree to their inclusion on the ground that it had not employed such clerks for some time. However, as previously noted, the International has been the certified representative of such employees since April 17, 1961 ( General Counsel's Exhibit 2), and, in common with the other employees in the unit , they have been the sub- ject of contract discussions between the Union and the Company , and of proposals sub- mitted by each . There is no evidence that the inclusion of the loading clerks in the relevant unit in any way prejudices the Company, and the unit and negotiating history amply war- rants their continuing inclusion, especially as there is nothing to prevent the Company from resuming the employment of such clerks at any time it chooses. MACMILLAN RING-FREE OIL CO. 881 The 'complaint alleges that the Local is the representative of the unit, but this, it seems 'to me, reflects an inaccurate conception of the record. It is true that the Local was a party to the 1960 contract , was jointly recognized there with the International as "the Union" representing the unit employees covered by the contract, and appears in that capacity in later agreements and contract proposals , but its identification in the record as part of "the Union," was, for all that appears, simply the product of acquiescence by the International and the Respondent. Throughout almost 4 years of negotiations beginning in June 1961 , which, as will appear in detail later, serve as the background of the bargaining allegations of the complaint , the spokesman for "the Union," and obviously its dominant figure, was a representative of the Interna- tional; and, what is more, the only union-security arrangement that ever existed between "the Union" and the Company, the one set forth in the 1960 contract, requires membership in the International, and not in the Local, but more to the point, the critical fact is that the International is the certified representative of the unit, and that the two certifications that created that status have never been revoked or amended and are still in effect, and I can see no reason to deny their continuing reach,'read together, as certificates of the status of the International as the exclusive representative of the employees in the relevant bargaining unit. To give the certi- fications that effect here, does, to be sure, entail a variance from the representation allegations of the complaint, but I find no prejudice to any party as a result. Indeed, the evidence of the certifications is in the record by stipulation of all the parties. Obviously, the Respondent has known about them from their inception, having par- ticipated in the representation proceedings which produced them, not to speak of the fact that notwithstanding the inclusion of the Local as part of "the Union" identified in contracts and proposals as the employees' representative, it was obvi- ously the International, through its representative, that spoke both for itself and the Local in the years of negotiation that began in June 1961. I find, in short, that the International has been at all times material to the issues here, and is now, the exclusive bargaining representative, within the meaning of Section 9(a) of the Act, of all employees in the unit found above to be appropriate for bargaining purposes. On April 28, 1961, a strike, called or at least supported by the Union, began among the employees in the bargaining unit it represents. So far as can be deter- mined from the record, the walkout arose out of a dispute between the manage- ment and union representatives over the wage rate paid an employee and "two other items" not explicated in the record. One may infer that the existing contractual grievance procedures were applicable to the wage dispute, at least, but the grievance machinery was not invoked to resolve the controversy, or at least not used to completion. The management had about an hour's advance notice of the strike, and prior to its start, Becker reminded a business agent of the Local, Robert Brown, of the con- tractual prohibition of strikes, suggesting the use of the grievance machinery, and Brown replied, in substance, that he had done what he could to defer the strike, and would try to do so again if the Company raised the wage rate of the employee in question. Becker stated that he could not agree without knowledge of the type of work the employee was performing, and that ended the discussion. The strike followed shortly thereafter, the strikers leaving their posts, without shutting down the refinery operations, a task that was completed by May and two nonstriking employees. Because of the omission, as May testified without dispute, the Company "lost about $2,000 worth of material" before the shutdown could be effected. The strike was ended in mid-June 1961 by force of a "strike settlement agree- ment," dated June 13, 1961, between the Union and the Company, which provided, among other things, that the contract of November 18, 1960, as amended, was "mutually terminated," and that the parties "meet as quickly as possible for the purpose of negotiating a new labor agreement." Thereafter, the Union and the Company, each represented as previously noted, held 22 meetings for the discussion of contract terms prior to the commencement of a strike at the Signal Hill facility on September 8, 1964, which was still in prog- ress at the time of the hearing in this proceeding, the first of these meetings taking place on June 22, 1961, shortly after the strike settlement agreement, and the last on September 4, 1964. In addition, there have been 10 negotiating meetings during the strike, the last on April 2, 1965. Despite the numerous meetings, spread over a period of almost 4 years, no "new labor agreement" has been reached, although 257-551-67-vol. 16 0-5 7 882 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD the parties, in circumstances to. be described later, did negotiate a wage increase early in 1963, and in the following year, the Company put into effect an added vacation benefit proposed by the Union in 1961. The primary issue in this case is whether the Company, as the General Counsel contends, has refused to bargain in good faith by following a course of conduct during the negotiations, reflected in proposals it made and positions it took, designed not to conclude a collective-bargaining agreement but to avoid it and to undermine the employees' bargaining representative; or whether, as the Respondent maintains, in substance, that it bargained in good faith to an impasse on the issues that divided the parties. Needless to say, as the charge in this proceeding was filed and served on Novem- ber 10, 1964, in view of the 6-month limitation prescribed by Section 10(b) of the Act, findings that the Respondent unlawfully refused to bargain, if warranted, must be based on events since May 10, 1964, but, contrary to a position taken by the Respondent at the hearing, and noted again in its brief, prior events, including pro- posals and contract discussions, "may be utilized to shed light on the true character of matters occurring within the limitation period" (Local 1424, International Asso- ciation of Machinists v. N.L.R.B., 362 U.S. 411, 416 [Bryan Mfg. Co.] ).-In the find- ings that follow, that is the role of the events that antedated "the limitation period." B. The negotiations and the strike 3 At the first, second, and third negotiating meetings (June 22 and 28 and July 20, 1961), the Union proposed that the parties readopt the terminated contract (re- ferred to below, as amended, as the 1960 contract), and, also, at the initial meeting, that employees with 20 or more years of service be given a fourth week of paid vacation in addition to the 3 weeks allowed them under the 1960 contract. Neither proposal was adopted, the Company stating that it "could not afford" the added vacation benefit. At the fourth meeting (July 27, 1961), the Company submitted a proposed con- tract to the Union. Of the 28 articles of the terminated contract, 14 were either identically or in substance incorporated in the 27 articles of the proposal, together with a schedule of wage rates paid under the prior agreement to the employees it covered.4 However, some or all of the substance of the other 13 articles of the proposal reflected material departures from the 1960 contract, taking the form of omission of two whole articles of that agreement, the incorporation of others with substantial alterations, and the addition of a completely new article. 3 As may be expected with so many meetings over so long a period, the record of the negotiations is voluminous, each side giving its version of many matters, with attendant differences in emphasis and detail Understandably, I omit various details that, in my view, cannot possibly affect the results and would, by review here, only add encumbrance to an already heavily burdened record, although I include other details of no particular significance to facilitate conversion of a complex, and at times confusing, record into a narrative account connecting and setting forth the findings and conclusions on the material issues. 4 The articles of the 1900 contract thus incorporated were article I (Recognition, with a minor modification in unit description to include driver-salesmen and oil house clerks, for whom the Local had become the certified representative) ; article V (Flours of Work) article VII (Holidays, with an insubstantial language change) ; article VIII (Vacations) article X (Wage Rates and Classification Changes) ; article XVII (Sick Leave) ; article XVIII (Military Service) , article XIX (Jury Duty) , article XX (Death in Immediate Family) ; article XXI (Clothing Allowance) ; article XXII (Validity) , article XXIV (Maintenance of Existing Benefits) , article XXVII (Physical Examinations) ; article XXVIII (Notices). The proposal also included rates for four classifications ( emulsion operator, loading clerks, oil house clerks, and driver-salesmen) not covered by the former contract, but it does not appear whether these rates, like the others, were already in effect In any case, wage-rate proposals for the driver-salesmen and oil house clerks were eliminated from the negotiations when it developed at one meeting or another that the Company no longer employed such personnel Also, as noted earlier, the Company has not employed loading clerks for some time. MACMILLAN RING-FREE OIL CO. 883 The two omitted articles were article IV, the union dues checkoff provision, and article XXIII, which provides that employees, within prescribed limitations, be com- pensated for working time lost in settling grievances and serving in contract nego- tiations as members of the Union's negotiating committee. The entirely new article in the proposal (article XV, labeled "General Pro- visions") which, together with a related appendix, would establish a list of 35 "rule infractions" as "sufficient grounds" for discipline, including discharge, "in the judg- ment" of the management ; and empower it, in its discretion , to add to or altei the list to any extent not in conflict with any other contractual terms At the eighth negotiating meeting (September 26, 1961), Becker told Cody, in substance, that the exercise of the management 's judgment in applying any of the 35 rules to discharge or otherwise discipline an employee would not be subject to arbitration, irrespective of any other provision in the proposal (or, in other words, notwithstanding a requirement of the grievance and arbitration article, taken from the 1960 contract, that discharge or other disciplinary action "shall be only for just cause"). The material changes in the 1960 contract, as set forth in the Company's pro- posal, included deletion of the wage "reopener" provisions ; a requirement that, in prescribed circumstances, union members maintain membership as a condition of employment, instead of the former "union shop" provisions that all unit employees (subject to the statutory grace period) become and remain members; a requirement that the management give employees a 24-hour notice of schedule changes instead of the prior provision for a 48-hour notice; a clause making a shift differential wage rate payable for day-shift employees only for work after 6 p.m., instead of 4:30 p.m. as previously required; a change in the previous requirement for premium pay for work performed on a regularly scheduled day off to make such payment subject to a proviso that the employee work at least 40 hours in the week involved; changes in grievance processing, including reduction in the time allotted the Union to take various grievance steps; language making the Company the "sole judge" of employees' qualifications in applying seniority provisions , and requiring pieferential hiring for laid-off employees on the basis of qualifications for job openings; a requirement that management approval be secured of all material posted on the bulletin board provided for the Union under the prior contract, and that the man- agement itself do the posting ; conditioning leaves of absence for union business upon availability of replacements without involvement of overtime ; deleting provisions prohibiting layoffs, demotions, or reduction of work hours resulting from subcon- tracting, and vesting sole discretion in the Company to subcontract operations; modification of the strike prohibition to delete provisions making it dependent on compliance with other contractual terms, and the exception of employees required to work under unsafe conditions ; adding language vesting in the Company "sole discietion," without regard to the grievance procedures, to discharge or otherwise discipline employees who violate the strike prohibition, and obligating the Union to make a public declaration in event of a "wildcat strike" that it is unauthorized, and promptly order its members engaging in such a strike to return to work, irrespective of any picket line; and altering the previous "management rights" pro- visions to redefine and particularize rights reserved, and, unlike the former article, vesting "sole discretion" in the management "to maintain discipline among its employees." 5 In the course of discussion with the Union's representatives , Becker told them that "irresponsibility" by the Union in calling strikes and breaching the stiike pro- hibition of the 1960 contract was the reason for the maintenance of membership provision, in lieu of the "union shop" and checkoff clauses; and that the "manage- ment rights" provisions would give the Company added protection in the light of a "trilogy" of Supreme Court decisions .6 The proposed revision of the strike prohibi- tion, Becker also told the Union, stemmed from the fact that strikes had taken The description of changes is not exhaustive, although almost all have been noted. The relatively few omissions do not materially affect any results in this proceeding. B The "trilogy" refers, presumably , to United Steelworkers of America v. The American Manufacturing Co., 363 U.S. 564; United Steelworkers of America v. Warrior it Gulf Navigation Co , 363 U S. 574 , and Steelworkers v. Enterprise Wheel it Car Corp., 363 U.S. 593, all dealing with arbitration under collective -bargaining agreements. 884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD place, and the Company was seeking "some clause" to prevent future strikes. He said that the Company needed the "General Provisions" article, and the appended list of "rule infractions," or disciplinary rules, to give it better control over the employees; asserted that the proposed reduction in time allotted the Union for vari- ous grievance processing steps would result in speedier dispositions; stated that the management sought the revision of the bulletin board article to give it "complete control" over the Union's board in the plant because "profane and scurrilous" material, and "attacks" on management personnel and others, had appeared on it after the 1961 strike; and expressed the view that contrary to the requirement of the 1960 contract, the management should not pay for time spent by employees in processing grievances, and that such a requirement "would be abused," and used irresponsibly by the Union. For the other deviations from the 1960 contract described above, Becker, during the course of the discussions, advanced, as reasons, cost factors or considerations of efficiency or managerial flexibility. Thus, for example, he told the Union's repre- sentatives that the proposal removing all limitations on subcontracting (or, in other words, the omission of the prior contractual guarantee against layoffs, demotions, and hours reduction resulting from subcontracting) was sought in the interest of efficient operations, and because of Board decisions which, according to him, pro- hibit unilateral subcontracting; that payment of a shift differential to day-shift employees for work after 4:30 p.m. required by the 1960 contract, instead of 6 p.m., as proposed, would result in "overtime on overtime" where the employees also received daily overtime for working after their regular shift hours; that the altered seniority provision would promote efficiency; and that the omission of the "wage reopener" clause was designed to avoid any necessity to renegotiate wages soon after the conclusion of a contract prescribing wage rates. As of the 12th meeting, held on September 19, 1962, the parties were in dis- agreement on all of the departures from the 1960 contract, listed above. The differ- ences are reflected in a draft of a proposed contract submitted by the Union to the Company on that date. With a few exceptions, the proposal substantially incorpo- rates all of the terms of the 1960 contract, the modifications consisting, in substance, of the vacation benefit previously proposed by the Union; an amendment to the "Sick Leave" article increasing to 60 days, from the 45 specified in the 1960 con- tract, the permissible amount of accumulated sick leave; the inclusion of a clause in the "Maintenance of Existing Benefits" article providing for the continuation of a pension plan, with the expectation, as Cody informed the Company, that one would be provided; a requirement, not present in the 1960 contract, that the Com- pany give 2 weeks' severance pay to "employees laid off" after "one year of serv- ice"; an addition to the "Hours of Work" article to provide time and one-half for the 6th and 7th consecutive days of work (the Union assigning as the reason that employees had been working as much as 10 consecutive days); and a pay scale that would increase the various hourly rates then in effect for unit employees by about 6 percent. Passing the subjects of wage increases and pensions for later discussion, it is enough for present purposes to note that in the course of subsequent negotiations, the Union dropped its proposals for severance pay and an increase in sick leave accumulation; that the Company at one point or another reiterated its opposition to the added vacation benefit and rejected the severance pay proposal , giving an economic reason for doing so; and that the differences between the Union and the Company over the departures in the Company's proposal of July 27, 1961, from the 1960 contract not only continued after the submission of the Union's written proposal, but were deepened by another draft of a proposed contract submitted by the Company at the next meeting, held on October 18, 1962. In all but several respects, the terms of the second management proposal were either identically or in material substance the same as those of the first. In addition to a "management rights" article that set out reserved managerial rights with sub- stantially greater specificity than that proposed by the Company in 1961, the second contract proposal omitted language contained in the Company's previously pro- posed grievance and arbitration article that discharge or disciplinary action "shall be only for just cause"; included a provision, not previously proposed, that "(w)here arbitration is sought and the Company claims the matter is not subject to the arbitration provisions of this Agreement, then the matter of arbitrability shall first MACMILLAN RING-FREE OIL CO. 885 be decided by a court of law"; and subsituted "open shop" provisions for the main- tenance-of-union-membership article of the Company's first contract proposal.7 Either at the meeting of October 18, 1962 or the one that followed, Becker told the Union's representatives that the Company had previously been willing to agree to "some type of union security" and had thus proposed the maintenance-of-mem- bership clause in lieu of the 1960 union-shop provisions, but becguse of various "incidents" that had occurred in the plant in 1961 following the strike settlement agreement, the management had decided that it had been "too liberal" in proposing the maintenance-of-membership provisions, and that the relevant proposal should be withdrawn to "reduce this authority of the Local over the employees." As regards the incidents, Becker gave testimony to the effect that soon after he had submitted the Company's proposal of July 27, 1961, to the Union, he had received reports from the plant management that after the end of the 1961 strike, "needles" 21/Z inches in length had been placed on an office chair (usually used by the then plant manager, Harold Dillard, according to a letter from the Company reporting the incident to the police) and had caused the refinery superintendent, Bruce May, "a sharp pain" when he sat on the chair; that "somebody" had thrown "a caustic acid" in the shoes of an employee, damaging them, and another employee "had had tar poured into his boots"; that lockers had been ransacked, and pants left in lockers by nonstrikers had been cut; and that acid had been placed on, and had eroded, "a rope to a bosun chair" used for painting operations at a height, creating a danger of fatal injury to a person using the chair with the rope in that condition. According to Becker's testimony, he received such reports in July and September 1961, over a year before he submitted the "open shop" proposal. There is no evidence that the Union or any of its members was responsible for any of the incidents, nor, for that matter, does the record identify any person responsbile. A letter dated August 10, 1961, from the Company to the Signal Hill police reporting the needles incident refers to "a history of hard feelings by some of the employees towards Harold Dillard," and makes no reference to any of these unidentified employees in the context of any strike or union activity or connection. At some unspecified point in 1962, the Union and the Company agreed to defer wage discussions until after the conclusion of negotiations in the oil industry then in progress and the establishment of "the industry pattern" of wages. It does not appear whether the proposed wage increases of about 6 percent embodied in the Union's contract offer of September 19, 1962, were discussed during the remainder of that year, but, in any case, at the 14th meeting, held on January 2, 1963, the Company made a proposal to increase the wages of the unit employees by 5 percent or, in the alternative, to establish a pension plan, a copy of which was given to the Union, and to deduct the cost of the plan from the increases, applying any bal- ance remaining to wages. The upshot of the matter was that the Union, following approval by the employ- ees, agreed to accept the 5-percent increase in the form of wages, and an accoid to that effect was set forth in a letter from the Company, which was "(a) greed to and accepted" by the International on February 3, 1963. The agreed terms also pro- vided that "wages and pensions shall not be a matter of negotiation until such future time as the (International) shall open industry-wide negotiations on wages, hours, working conditions, etc. with the oil industry after settlement of its present negotiations with the oil industry." 8 7 A few other differences between the first and second management proposals, consisting of a variance between the wage rates specified for loading clerks, of the omission from the wage schedules of the second proposal of several classifications listed in the first, and of a modification of the "Sick Leave" article to limit the Company's obligation in cases of compensable injury to the difference between an employee's award and what he would have received as sick leave pay have no material impact on the ultimate results here, although the "Sick Leave" modification was a subject of recrimination at one meeting or another, Becker charging that an employee had unjustly kept both an air and and sick leave payments, and Cody stating that some aspects of the proposal would be unfair to other injured employees, and that it was the Company's responsibility, and not the Union's, to seek reimbursement from the employee in question. B Although the letter indicates that oil industry negotiations were still in progress at the time of the wage agreement, one may reasonably infer, against the background of the arrangement in 1962 between the Union and the Company for deferral of wage negotia- tions, that by the date the Company made its 5-percent proposal, a wage pattern, at least, had emerged from the industry negotiations 8S6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There were five more meetings in 1963, following that of January 2 , but although there was discussion. during their course , of the matters in dispute, reflected, basi- cally, in the departures ( apart from wages ) of the Company 's proposal of Octo- ber 18, 1962, from the 1960 contract , no agreement was reached at such meetings on any of the subjects in controversy. At the last meeting in 1963, held on December 13, Cody asked Becker whether he was prepared to submit "a final proposal ," and the latter replied that he was not ready to do so at that point and would require some time to prepare one , and that he would communicate with the Union "right after Christmas " to arrange a meeting.9 Becker did not communicate with the Union as promised , nor was a meeting held for almost 5 months, but on or about February 27, 1964, the Company sent employees in the bargaining unit, without prior clearance or arrangement with the Union, copies of a letter, bearing that date , from the Company 's vice president, Earle Willoughby ( who attended most of the negotiating meetings ), to Cody, stat- ing in substance , that in furtherance of a policy of improving "its employee pro- gram," the Company was granting "all MacMillan employees" with 20 or more years of service 4 weeks of paid vacation ; that unless the management heard to the contrary , it would assume that the change in benefits met with Cody 's approval; that if he did not wish the benefit to be granted , he should advise the management, which was willing to discuss the matter ; and that by "copy of this letter, we are informing all the MacMillan employees of this new vacation benefit." Cody telephoned Willoughby upon receipt of the letter on February 28, 1964, and told him that the matter would be submitted to a meeting of employees, and that a "signed letter of agreement" would be necessary . The Company prepared such a letter on March 2, 1964, and its terms became an agreement upon execu- tion by the International on the following day. In February 1964, at a meeting of employees in the unit , all but one of those present voted in favor of a strike against the Company in support of the Union's contract demands, and to authorize the negotiating committee to determine the date of the strike. On March 18, 1964, Cody, not having heard from Becker regarding a meeting, wrote a letter to Willoughby , proposing that the parties enter into an agreement incorporating the terms of the 1960 contract and the additional vacation benefit; requesting the negotiation of a pension plan, an outline of which was enclosed, and that Willoughby communicate with Cody regarding arrangements for the resump- s Findings above regarding the meeting of December 13, 19 6 3, are based on Cody',; relevant testimony which I credit According to Becker and Willoughby , who attended the meeting, the Company made its "final proposal" at the meeting, the sense of their testimony being that it consisted of the Company's written proposal of October 18, 1962 , with what- ever changes had been made since (No changes viortli noting had, in fact, been made apart from the agreement on wages early in 1963 ) But they, too, in effect quote Becker as piomising future submission of a written "final proposal," and this lends support to Cody's testimony that Becker said that he was not yet ready to make such a proposal, Obviously, if Becker, as both he and Willoughby claim in effect, said that the contract draft of October 18, 1962 ( apart from its wage schedule ), was the Company 's "final proposal," there would be little reason for Becker to promise to reduce the Company 's "final proposal" to wilting , nor does any credible reason appear why Becker , if lie made the "final proposal" he describes , should tell the Union 's negotiators , as be also claims, that the preparation of the "final proposal" would "take a long time to reduce . . to writing " Becker, to be sure, submitted a contract proposal at a meeting on September 2, 1964 , but that proposal, putting aside the subject of wage rates which were not an issue in December 1963, and the added vacation benefit which was no longer in issue in September 1964 , and with the eveep- tion of relatively minor language changes in the subcontracting aiticle , is in all mateual respects identical with the contract proposal of October 18, 1962 Why a virtual replay of that proposal "would take a long time to reduce . to writing" does not plausibly ap- pear Moreover, Willoughby 's account does not quote Becker as saying that preparation of "a final proposal" would "tale a long time" , nor does either deny, in terms at least, that Becker promised to communicate with the Union "right after Christmas " regarding another meeting. The fact is that the next meeting was held on May 7, i964, some b months later, and then only after prodding by the Union , and Becker's unsupported claim that he said his final offer would take "a long time" to prepare will not credibly suffice to explain the lapse of time between the two meetings. MACMILLAN RING-FREE OIL CO. 887 tion of negotiations Willoughby replied by letter dated March 30, 1964, stating that the Company was endeavoring to secure information regarding the pension plan material submitted, and would communicate with Cody to arrange for a meet- ing; and that in the future, matters pertaining to negotiations be taken up with Becker. By the latter part of April 1964, the Company still had not communicated with the Union to arrange a meeting, and Cody called Becker and requested one, with the result that the parties agreed to meet on May 7, 1964. The meeting was held as agreed and appears to have been devoted primarily to discussion of the Union's proposal for a pension plan. The Union described the International's current oil industry "bargaining policy" which sought an increase in economic benefits amounting to 5 percent of wages, and informed the Company that the represented employees wished to use the 5 percent for the purchase of a pension plan. A representative of the Local, Robert Brown, who had had some experience with the plan, which had previously been sent to the Company, gave a detailed explanation of the program, and Becker asked for a printed copy of the plan (as distinguished from the outline), was told that it had not yet been printed, and requested that a copy be sent him when put in print. (None had been received as of the time of the hearing. It does not appear whether a printed copy ever became available ) The Company said it would take the plan under consideration.io The record reflects some conflict on the subject of arrangements for a subsequent meeting. I do not believe that total truth in this area resides with either side. According to Willoughby and Becker, Cody agreed to defer negotiations until after a settlement in industry-wide negotiations (apparently then in progress or imminent). Cody states that he cannot recall such an arrangement, and the sense of his testimony as to the way the subject of a future meeting was left, is that Becker promised to call him to arrange one Objective features of the record support Wil- loughby and Becker. One is that the parties had a somewhat similar deferral arrangement in 1962. Another is that the Union was already obligated by the wage agreement made early in 1963 to defer wage and pension negotiations "until such future time as the (International) shall open industry-wide negotiations . and, while this is not a commitment to defer negotiations on all subjects, it enhances the plausibility of the claim that the deferral arrangement in question was made. I find that there was such an arrangement On the other hand, I am unpersuaded that it was Becker, as he claims in effect, rather than Cody, as the latter claims, who first broached the subject of a resump- tion of negotiations after the May 7 meeting. Becker gave testimony to the effect that he called Cody early in August and inquired whether an agreement by a large oil company to increase economic benefits by 41/2 percent of wages was the "indus- try pattern", that after Cody expressed uncertainty, they agreed to await "a defini- tive pattern"; that Cody called him later in August, said "It looks like 41/2 per cent," and inquired about a meeting; that they set one for August 20; that he (Becker) telephoned later to request a postponement, suggesting September 2, because the Company had not yet received some pension material (which, accord- ing to Willoughby, MacMillan had requested from a company specializing in such matters); that he inquired about the "industry pattern," was told that it appeared to be "41/2 per cent," and said the Company "will meet the industry pattern"; that Cody replied, "That is all we are asking for"; and that September 2 was agreed on as the next meeting date. Cody testified that he initiated the telephone conversation early in August by calling Becker, and that substantially what occurred on that occasion was that he asked for a meeting and that they set one for August 20 (erroneously stated to be August 25 in the transcript). In addition, Cody denied that he made any reference to any industry settlement in this conversation, but stated that during the conversa- tion in which Becker requested the postponement, he told Becker that "the pattern 10 Cody testified that he could not recall the request for the printed copy Brown, to whom the request was addressed, did not testify. I think it quite plausible that such a request would be made, and have thus made the relevant finding above, but I do not credit a claim by Becker that lie repeated the request to Brown at subsequent meetings. The latter did not attend any meeting after that of May 7, 1964, as is evident from Gen- eral Counsel's Exhibit 3(b). Moreover, Willoughby in effect contradicts Becker, testifying that the request was not renewed at any subsequent meeting. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not been set as yet, that there had been one or two offers [in the industry negotiations] and that he [Cody] was quite busy in negotiations with other companies." ii Much of the detail of the August conversations appears to me to be of no large moment, since the only matter of any substance in issue is whether Cody or Becker initiated the first call in August, and there is no reason to believe that the Company was unwilling to meet the "industry pattern" to the extent of the relevant percent- age increase in economic benefits, but for the bearing it has on the matter in issue, I note my view that a vein of self-serving exaggeration appears in Becker's testi- mony in this area as in others to be described later. It does not seem quite plau- sible to me that with the wide gulf that separated the parties on so many issues for so long, a man with the long experience in contract negotiations that Cody has had (over 17 years as a representative of the International), with the characteristic of reserve and cool judgment that he displayed in the more than 2 hearing days he spent on the witness stand, would baldly tell Becker "That is all we are asking for" when told by Becker, according to the latter's account, that the Company would meet the "industry pattern" of an increase of 41/2 percent in economic benefits. The Union was seeking much more, including a "contributory" pension plan to which the Company had not (and has not) agreed. The imputation of such a remark to Cody, in the circumstances presented, strikes me as of a piece with an implausible claim by Becker, unsupported by Willoughby, that at the December 13, 1963, meet- ing Becker said that the "final proposal" the Union requested there "would take a long time to reduce . to writing," a claim advanced, in my view, post hoc, ergo propter hoc to justify the lapse of about 9 months before the submission of such a "final proposal" (which varies little from the Company's contract proposal of Octo- ber 18, 1962); and with Becker's testimony, contradicted by Willoughby, that at meetings after that of May 7, 1964, Becker asked Brown for a copy of the pension plan discussed by the latter, although Brown did not in fact attend any of the meet- ings after that date. Moreover, the image Becker portrays of himself as initiating discussion of the subject of another meeting with a call to Cody does not quite fit the picture of foot-dragging by the Company with respect to the resumption of negotiations after the meeting of December 13, 1963, drawn by the evidence of Becker's failure to call Cody "right after Christmas" in 1963 to arrange a meeting, as he had prom- ised; the lapse of time between the December 13 meeting and that of May 7, 1964; the initiatives taken by the Union to secure a resumption of negotiations after the December 13 meeting; and the Company's failure to communicate with the Union regarding a meeting to that end, as promised in the Company's letter of March 30, 1964, in reply to the Union's letter requesting such resumption. I find, in short, that Cody took the initiative, by calling Becker early in August, in seeking the resumption of negotiations that followed the meeting of May 7, 1964. The point at which a "pattern" of economic benefits emerged from negotiations on a national level in the oil industry in 1964 is unclear, but there is no dispute that by September 2, 1964, the date fixed by Cody and Becker for a meeting, such negotiations had resulted in agreement between the International and various com- panies to increase economic benefits of employees by an amount equal to 41/2 per- cent of their wages. On the morning of September 2, 1964, shortly before the scheduled meeting which was to be the 21st in the contract negotiations, the Union's negotiating rep- resentatives discussed the question of calling a strike, and following remarks by Cody to the effect that the Union had been expecting, but had not received, the contract proposal Becker had promised at the meeting of December 13, 1963, and that matters ought to be brought "to a head," the employees' committee decided on a strike at the Signal Hill facility, to begin on September 8, 1964, if no adequate progress was made in negotiations. nA claim in the Respondent's brief that one of the reasons for the postponement given by Cody in his testimony was that the "pattern" had not yet been established is inaccurate. Cody did testify that he told Becker that "the pattern had not been set as yet," but it is reasonable to put this statement in the context of an inquiry by Becker about the "pat- tern"-a query that the latter imputes to himself in his account. The fact is that Becker himself states that he asked for the postponement because he was not ready with the pension material, and that Cody quotes Becker, in a not significantly different vein, that the Company "wasn't ready to make a proposal on wages." MACMILLAN RING-FREE OIL CO. 889 There is no dispute that shortly after the meeting opened Becker made an eco- nomic offer which, in ultimate amount, would follow "the industry pattern," but there is division in the record whether the offer was solely that the 41/2-percent increase be applied to a pension plan, as Cody and other representatives of the Union at the meeting state, or whether, as Willoughby and Becker say, the Union was given a choice between a 41/2-percent wage increase and a pension plan. That issue will be discussed at a separate point below. Becker told the Union's representatives that the pension plan he was promising was in effect at MacMillan's Arkansas plant, and he gave Cody a printed copy of the plan , also explaining various of its details . Cody inquired whether the plan was the same as that turned down by the Union early in 1963 when the Union accepted the alternative of a 5-percent wage increase, and Becker replied that such was the case. There was some discussion of the Union's pension proposal that had been made at the prior meeting, including the fact that unlike the Company's plan, it required contributions from both the employer and the employees (thus, as one may infer, resulting in larger deposits in the pension fund than visualized by the Company's plan), and Cody said that the Company's proposal was not acceptable. Cody then asked Becker for the "final proposal" the latter had promised at the meeting of December 13, 1963, and Becker gave him a draft of a contract, which was the same as the Company's contract proposal of October 18, 1962, with a few relatively minor exceptions of no impact on the ultimate results here.12 After an examination of the draft, Cody said that it was as bad as, or worse than, the Com- pany's last proposal, and that unless the parties reached an agreement by the morn- ing of September 8, embodying a pension plan and the terms of the 1960 contract (apart from wages and the added vacation benefit, obviously, since such matters had been the subject of agreement since), the Union would take "economic action" against the Company or, in other words, call a strike.13 At this point, Becker asked Cody, "Haven't you had enough yet?" or words to that effect. Cody requested that negotiations continue that day, but Becker declined, stating that he had to make arrangements for the continued operation of the plant. The question whether the Union was given a choice between a wage increase and a pension plan has relevance to an issue whether the Company, by a letter to unit employees, dated September 3, 1964, and copies of an announcement issued on November 4, 1964, and sent to employees about that date, misrepresented the con- duct of the Union's negotiating representatives at the meeting of September 2, 1964. Each communication pictures the Company as making the alternative offer at the September 2 meeting, and the Union as rejecting it. The announcement of November 4 also quotes Robert Hunter, a member of the employees' committee, as admitting at the meeting of September 4, at which a mediator from the Federal Mediation and Conciliation Service was present, that "MacMillan had offered a 41/2 % increase in wage rates" (as an alternative to a pension plan). There is no dispute that at the September 4 meeting all the Union 's representa- tives, apart from Hunter, under interrogation by the mediator , in substance denied i9 In substance, the Company's contract proposal of September 2, 1964, differed from the previous one in its schedule of wages rates ( which were those currently in effect as a result of the agreement in 1963 ) ; the incorporation of the additional week 's vacation for employees of 20 or more years of tenure , a benefit put into effect early in 1964 ; and a revision of the prior proposal on subcontracting ( spelling out the management 's unfettered right to subcontract with greater specificity). 13 Tbere are minor and immaterial variances among the several versions as to the terms in which Cody referred to the "agreement " he demanded . Willoughby and Becker quote him as demanding the "old" ( 1960 ) contract and a pension plan; Charles Brant, an employees' committee member, as requiring the Union 's "proposed contract" and a' pension plan, Dale Scharnow, another member, as seeking "a satisfactory agreement" and a pension plan ; Robert Hunter , a third member, as demanding "a contributory pension plan and a signed contract " According to Cody, he required "an agreement" by the specified date Whether he expressed himself that way or in any of the other ways, I have no doubt that in the context of circumstances , the thrust of his statement , and of the understanding of those present, was that he was demanding an agreement embodying a pension plan and the terms of the 1960 contract, apart from its wage provisions and the added vacation benefit. It may be borne in mind, in that connection , that the Union 's proposal of September 19, 1962, is not greatly different from the 1960 contract , and that during the strike, it made comparable proposals. 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the wage alternative had been proposed at the prior meeting The point of division is Hunter's response to the mediator's inquiry, and as to that, Becker and Willoughby quote him as making the admission, but the Union's negotiators, in sub- stance, deny that Hunter made it, the latter testifying that he told the mediator that the Company "did not offer the wage increase but had offered,a pension plan for 41/2 % " Resolving, first, the issue of the alleged admission, the qualitative weight of the evidence does not, in my view, support Becker and Willoughby. Becker himself testified that Hunter, at an earlier point in the meeting, responding to a question by Becker, denied that the wage proposal had been made, and it does not plausibly appear why Hunter would change course in a reply to the mediator's inquiry, espe- cially in the setting of unanimity on the subject by all the other union representa- tives at the meeting. Moreover, a sworn written statement made by Becker on December 22, 1964, supports a belief that the admission he imputes to Hunter is the product of a conclusion he draws from something Hunter said rather than an accurate reproduction of what was said In the statement, Becker said: "Finally, Bob Hunter admitted to Jules Medoff (the mediator) that we had offered them the 41/2% wage increase. The way the conversation between Medoff and Hunter went is something like this: Medoff said, `Now, Mr. Hunter, was this offered9' and Hun- ter said, `No,' and they kept talking and Medoff said, `Are you going to tell me that there was not any presentation, not even a 41/2 percent talked about?' Hunter said, `Yes it was.' Hunter said there was an offer of 41/2 percent." The point of the mat- ter is the offer of a "wage increase" that Becker claims Hunter "(f)inally . admitted" had been made is not in terms reflected in the colloquy between Medoff and Hunter as Becker himself describes it. It is not disputed that the Company had made "an offer of 41/2 percent" at the September 2 meeting, the conflict being whether it was a pension offer or the alternatives claimed by the Company, and, plainly, "something like" a statement by Hunter that "there was an offer of 41/z %" is hardly an admission that the Company had "offered them the 41/2 percent wage increase." In short, I am unable to accept the claim that Hunter made the admis- sion in question, and credit the testimony that he did not.14 On the other hand, I am not persuaded that the September 2 offer in question was confined solely to a pension plan, as the Union's representatives claim. It is true that at the preceding meeting (May 7), the Union had informed the Company of its wish to apply any economic increase to a pension plan, but that does not inevitably mean that the Company would so confine its offer. Early in 1963, in the context of a pending proposal by the Union for wage increases harnessed to the outcome of industrywide negotiations, and an expression of a desire by the Union for a pension plan, the Company had made an alternative proposal much like the one Becker asserts he made at the meeting of September 2, 1964, and I find nothing implausible in a conclusion that it followed a course at that meeting similar to one it had taken before. The form of the previous proposal is an objective factor that tends to support the Company's position. Moreover, Becker, who testified at substantial length, displayed a disposition, as a witness, to speak with discursive rapidity, and while, in the nature of things, we have no precise reproduction of the climate of feeling at that or any other meeting, nor of the exchanges that took place, with the thrusts, parries, and conversational minutiae that experience tells us so often attend such meetings, and that witnesses may subsequently forget, disregard, or wittingly or unintentionally telescope into preferred conclusions, it is readily conceivable that in one context or another at the September 2 session, Becker made the 41/2-percent offer in the alternative form the Company claims; that because of the speech characteristics mentioned, the Union's representatives mistakenly understood his offer to be confined to pension contribu- tions; and that, in the setting of the union negotiators' concentration on the subject of a pension program, the Company's representatives mistook the Union's position on the Company's pension proposal for a rejection of its 41/2-percent economic offer as a whole. 14 The General Counsel does not make clear whether he claims that the imputation of the admission to Hunter was a willful misrepresentation designed to undercut the Union as part of a pattern of bad faith in bargaining. In any case, Becker's previous sworn statement suggests at least a strong possibility that he and Willoughby misunderstood Hunter, and there is insufficient warrant for a belief that they willfully misrepresented him. I draw no inference of bad faith from the misstatement. MACMILLAN RING-FREE OIL CO. S91 Be that as it may, the burden of proof on the relevant issue is upon the Gen- eral Counsel , and particularly taking into account the objective fact that the Com- pany had once before made a comparable alternative offer, and the absence of any substantial evidence that the Company had anything to gain by confining its offer to a 41/2-percent igerease to a pension plan instead of oftering the alternative of a wage increase , it appears to me that the General Counsel has not sustained his posi- tion by evidence of preponderant weight. Thus I hold that the record will not sus- tain a conclusion that the relevant statements in the letter of September 3, 1964, and the announcement of November 4, 1964, so misrepresented to the employees the position of their representatives as to amount to either manifestations of bad faith in bargaining or any abridgement of the right guaranteed employees by Sec- tion 7 of the Act In addition to the controversy at the meeting of September 4, 1964, over the nature of the Company's economic offer at the previous meeting, there was some discussion of other subjects in dispute, including checkoff and union -shop provi- sions, subcontracting , and management rights, each side caucusing separately with the mediator, but no agreement was reached on any subject in dispute 15 As of that point, the divisions between the parties consisted , basically, of the differences between the types of pension plans they had respectively proposed, and between the Union's contract proposal of September 19, 1962, the terms of which, putting aside its wage schedule and a relatively few minor changes, were virtually identical with those of the 1960 contract , and the Company's contract proposal of September 2, 1964, which , as previously indicated , was little different from the Com- pany's proposal of October 18, 1962. On September 6, 1964, at a meeting of 25 of the 31 employees then in the unit, one or the other of the Union's bargaining representatives read in their "minutes" of the last three meetings with the Company and portions of the Company 's "pro- posed contract" (submitted at the meeting of September 2, 1964 ), including the appended list of "rule infractions"; reported the strike warning that had been given the Company, and answered questions "regarding the possible strike and the nego- tiations." One employee suggested another strike vote because there were two "new employees" who had not participated in such a vote previously, but several others present said that that was not necessary , and that the impending strike was "legal." 16 15 Testimony by Cody to the effect that the mediator , after caucusing with the Company's representatives , told the Union 's negotiators , in their caucus, out of the presence of any agent of the Company, that it "was withdrawing the 41/, percent offer" was stricken , and no findings here are based thereon "The Respondent stresses the absence of a strike vote on its "last proposal ," but the thrust of its position is less than clear Its willingness to follow the "industry pattern" of a 41/2-percent increase in economic benefits does not alter the fact that its "final proposal" for "a new labor agreement " in the sense of a codification of collective -bargaining relations between the Union and the Company was little different from the Company's contract proposal of October 18, 1962 ; that about 9 months had elapsed since Becker's promise of December 13, 1963 , to submit a "final proposal " ; that there had been fool- dragging and broken promises by the Company in connection with a meeting after that date , that at various union meetings , a substantial majority of employees present had voted in favor of a strike in support of the Union 's contract proposals , committing the date to the discretion of the negotiating committee ; and that the committee had decided on a strike on the morning of September 2, 1964 , if no adequate progress was made in negotia- tions . If the Respondent 's position is that the strike that began on September 8, 1934, was unlawful for lack of propel authorization , I find no merit in it. There were 17 unit employees at the union meeting held in February 1964, all but 1 voting in favor of a strike. In addition , there had been an earlier vote at a union meeting on September 10, 1933, when 21 of 23 unit employees present voted for a strike, also committing the timing to the discretion of their negotiating committee Notwithstanding the reference at the union meet- ing of September 6, 1964 , to two "new employees ," there is no evidence ( nor any claim for that matter ) that the total number of employees in the unit at the time of either strike vote exceeded 31, the number in the unit at the time of the September 6 union meeting and of the beginning of the strike, and one may reasonably infer that the total number of unit employees at the time of each vote did not exceed 31 Without implying any view that either strike vote was an essential prerequisite of the Union 's right to call a strike, I find that at the time of each vote , a majority of the employees then in the unit authorized the 1964 strike 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The negotiating session of September 4, 1964, was the last prior to the strike which began at the time specified at the September 2 meeting (and was still in progress at the time of the hearing in this proceeding more than a year later). The meeting was brought to a close by the mediator because of the lack of any prog- ress, and each side expressed willingness to meet again. On November 4, 1964, Becker sent the Union a wire requesting a meeting to dis- cuss the matter of putting a 41h-percent wage increase into effect, and the upshot of the telegram was a meeting held on November 6, 1964, in the presence of a Federal mediator. Becker said there that the Company wished to put the increase into effect, and Cody replied, in substance, that the proposal was acceptable pro- vided an agreement could be reached on contract terms in dispute; and that the Union wished to negotiate on the other matters. Becker declined, stating that what he was seeking at the meeting was agreement on the wage proposal, and that an agenda of other matters should be set up for a future meeting, and that he was willing to discuss them at a later date. There was some additional discussion, appar- ently of a heated nature, over the question of the form of the Company's eco- nomic offer on September 2, but of no real moment here, the end result of the meeting being that the parties remained as far apart as ever. The negotiators met again on December 4, 1964, in accordance with an arrange- ment made by an attorney for the Union and a district official of the International, James Morgan, with Becker at a meeting that had been held on November 24, 1964, upon the attorney's initiative (but not attended by Cody and the employees' committee). Morgan had agreed in the November 24 discussion to send to Becker, and had subsequently sent him, "a list of the items . . . in dispute." 17 At the December 4 meeting, the parties canvassed the list of disputed items (17 in number), but made no progress toward agreement on any of them, and, in fact, the division if anything, deepened as a result of the only change of position at the meeting, consisting of a new proposal by Becker to add a paragraph to the strike prohibition and related requirements set forth in his contract proposals of Octo- ber 18, 1962 and September 2, 1964. The added language follows: The Union agrees that any time a strike, work stoppage, or interruption of work or other concerted activity occurrs by the employees covered hereunder during the term of this Agreement or within one (1) year from its termina- tion, the Union shall pay each striking employee eight (8) hours per day and forty (40) hours per week at his then hourly wage rate for all the time he is on strike, including time and one-half (11/2) for all hours spent picketing in excess of eight (8) hours per day and forty (40) hours per week with double (2) time for Sunday and holiday picketing. In submitting the addition, Becker expressed the hope that the proposal "would prevent future strikes," engaging then in what he terms a "philosophical discussion" about the prevention of strikes, which need not be set forth here. Cody rejected the proposal, stating that he knew of no union in the United States that would agree to it. Toward the end of the meeting, Cody expressed the Union's willingness to meet the following day or any other day or night in an effort to reach a settlement, but Becker said that he would be away on a business trip until December 18, and could not meet again until after the coming holiday period, and that he would call Cody upon his return to arrange a meeting. According to Becker, he called Cody upon his return and at that time arranged the next meeting, which was held on January 12, 1965. The meeting did not come about that way, but, rather, it was Cody, as the latter claims in effect, who took the initiative in seeking the meeting that followed that of December 4. Cody's claim is amply corroborated by a letter dated January 6, 1965, he wrote to Becker, request- ing a meeting, and a reply from the latter dated January 8, 1965, expressing will- ingness to meet on January 12, 1965. 111 make no additional reference to the November 24 discussion, nor to a previous meeting, held on October 8, 19C4, between Morgan and the Company's representatives, as the discussions on these occasions do not affect the end results in this proceeding. The references I make, at various points, to the number of negotiating meetings do not include these two meetings as they were not attended by the Union's regular negotiating representa- tives, but it matters not whether one includes them. MACMILLAN RING-FREE OIL CO. 893 There was no change of position at the meeting of January 12, 1965, which was attended by a Federal mediator, nor at the two meetings following, held on Janu- ary 21 and 28, the parties basically reiterating views and proposals previously advanced. At a meeting held on March 1, 1965, with a Federal mediator in attendance (as at the next two meetings), the Union submitted a new draft of a contract proposal, offering to agree to such terms or, in the alternative, to "our old proposal of Octo- ber" (meaning, as I infer from the general context, the Union's proposal of Septem- ber 19, 1962), as amended by "letter agreement" ( an allusion, apparently, to the vacation benefit added in 1964), together with a 41/2-percent wage increase. The new draft incorporated most of the terms of the Union's contract proposal of September 18, 1962, differing from the latter, basically, in that it omitted the wage "reopener" provisions, providing, as a substitute, a 3-year term with step increases for each employee totaling 22 cents an hour; provided for a pension fund contribution by the Company of 15 cents per working hour for each employee affected (the contributions to be deducted, according to the sense of an explanation Cody gave Becker, although not specified in the contract, from the employees' increased wages); set forth a two-step grievance and arbitration procedure patterned after a contract between MacMillan and the "Teamsters"; and provided an upward revision of paid vacation benefits for all categories previously entitled thereto, including 5 weeks for employees with over 20 years of service (in conformity,. Cody told Becker, with new contract provisions to which all other Pacific coast oil companies had agreed). Becker said that he would take the new draft proposal under consideration. At the next meeting, March 18, 1965, Becker informed the Union that the Com- pany had reviewed the last contract proposal and had found it to be substantially the same as "the old contract," except for "a very few changes . . . previously agreed to in negotiations" and "certain monetary changes"; and that the proposal would increase "economic costs" for the Company. The parties discussed all the articles of the proposal, and the end result, dispensing with a review here of the considerable minutiae in the record, was that the Company would not agree to the new terms submitted by the Union, and that there was no accord on any subject, of any substance at least, previously in dispute, except that the Union abandoned its proposal that employees be allowed to accumulate 60 days of sick leave, and agreed to the 45-day provision previously in effect. The 30th and final meeting was held on April 2, 1965, upon arrangements by the mediator. The parties appear to have spent most of the time in separate caucuses, with the mediator going from one to the other. I see no useful purpose in can- vassing a discursive description in the record of what was said, for the end result was that no accord was reached on any of the matters in dispute as of the prior meeting, most of which had been in dispute for almost 4 years before that. The parties recessed subject to call by either side, but so far as appears, there has been none. The Respondent adduced evidence of alleged acts of misconduct by various indi- viduals during the strike. Much of this consists of reports, mainly by nonstriking employees made to, and kept by, the Company during the strike, and is obviously hearsay. Much of it deals with alleged incidents after the last bargaining session, a circumstance that of itself, apart from any other, poses a question of materiality, to say the least, since there is no evidence that they had any connection with the fact that the parties have had no meetings since April 2, 1965. And, plainly, all the evidence of alleged misconduct during the strike is immaterial to the issue whether the Respondent brought bad faith to the bargaining table prior to the strike and thereby caused it-matters that will be determined later, in the light of various aspects of the record not yet mentioned. The reasons offered by the Respondent at the hearing for presenting the evidence were, basically, ( 1) that it serves to explain the Respondent 's bargaining positions since the strike began, and (2) that the alleged misconduct suspended the Respond- ent's bargaining obligation. Apart from the hearsay nature of the reports, the attri- bution of various acts of misconduct to unidentified persons, with the attendant difficulty, if not impossibility, for any adversary party to verify or test the credibil- ity of the Company's relevant testimony, the absence of substantial evidence that some of the incidents had any connection with the strike , the lack of any evidentiary 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD basis for attributing any responsibility for any misconduct away from the picketed area to the Union or any of its responsible representatives,18 the evidence in ques- tion, which was offered prior to Becker's testimony, was received with misgiving because all of it would plainly be immaterial if it turned out, after all the evidence pertaining to the negotiations was in, that the Company's attitude toward its bargain- ing obligation was not materially different after the current strike began from what it had been before, and that its bargaining duty has not been suspended. The evidence includes testimony describing close-formation picketing at plant gates making it difficult and uncomfortable for nonstriking employees to enter or leave the plant; and that pickets, while engaged in picketing or stationed in the plant vicinity, kicked, pushed, elbowed, stepped on, shoved, and threatened non- strikers, and made vulgar and obscene remarks to them; that various individuals, some identified as pickets, others unidentified, threw stones from the street over the Company's fence onto its property, such stones landing near nonstriking employees and one hitting such an employee; that two unidentified persons, driving in a car identified as belonging to a picket, followed a scooter diiven by a nonstriker at a distance of "about six or twelve inches" at a speed of some 25 or 30 miles an hour, forcing him, because of his fear of collision, to go through a red light; that two individuals identified as pickets "followed" a nonstriker by car for some miles while the latter was driving home from work late at night; that pickets were observed tampering with gate locks at the plant premises; and that "staples" (not further elaborated) were "shot" by some unidentified person and landed on the plant premises. Toward the end of October 1964, about 6 weeks after the strike began, the Com- pany brought an action in the Los Angeles County Superior Court against the International, the Local, and various individuals, including Cody and the three members of the employees' negotiating committee, seeking, among other relief, an injunction against alleged misconduct specified in the complaint. The court entered an order to show cause, with companion temporary restraints against the alleged misconduct. Without making any findings, and upon the basis of a stipulation between counsel for the Company and attorneys for the defendants in the action, the court, on December 1, 1964, entered an order enjoining the defendants from the acts of misconduct alleged in the complaint. On March 9, 1965, in a contempt proceeding against 16 individuals for violation of the injunction, involving, in the main, various allegations of misconduct sum- marized above, 12 were found "not guilty" and 4, none holding any office or posi- tion with the Union, were "adjudged in contempt," the court finding that the 4 men "used vile, threatening and abusive language, shoving, kicking, tripping, and coming into contact with plaintiff's employees not on strike, and of tampering with or touching or coming into contact with plaintiff's pipeline valves or other equip- ment of plaintiff's refinery operations." The four were fined $50 each. The wife of an employee, Walter Warner, who returned to work during the strike, gave testimony to the effect that in November 1964, after he had done so, she received an anonymous telephone call from an individual who made an obscene reference to her relationship to "a scab"; that she received "numerous" calls of a se Robert Hunter is the only person holding it position with the Union to whom any personal misconduct is imputed An employee named Howard Elliott, who entered the Company's employ during the strike, testified that in October or November 1964 Hunter threw a stone onto the Company's property, and hit some pipes ; and that Hunter and another striker, Elgin Bennett, blocked the sidewalk passage of three nonstrikers, in- cluding Carter, near a plant exit-Bennett, according to Carter, elbowing one of the non- strikers Hunter denied the rock-throwing, and Bennett, supported by Hunter, gave testi- mony to the effect that he and one of the three nonstrikers "collided," and that that individual "put his hand on my shoulder and shoved me backward." The incident was among the bases for a contempt proceeding (to which later reference will be made) in which both Hunter and Bennett were acquitted, and I credit their versions of what took place Similarly, I credit Hunter's denial that he threw a stone, noting, In that regard, that he was not charged with that behavior in the subsequent contempt action, although the relevant injunctive order specifically restrains such conduct, and that an affidavit made by Carter In the contempt proceeding says nothing about rock-throwing I note, in passing, that various other allegations of misconduct by identified individuals are disputed, but I see no useful purpose in resolving such conflicts since the truth or falsity of the allegations Is not, in my view, the question raised by the claimed incidents but, rather, whether they affected the Respondent's bargaining obligation and attitude, as It claims. MACMILLAN RING-FREE OIL CO. 895 similar character during the year thereafter ; that on the night of November 15, 1964, she saw two men in a car on the street near her home over a period of more than 4 hours; that one of the men "climbed upon ( a) fence" near the house ; that she did not know either man, that on the following night, "a Molotov cocktail" was thrown through a window at her home, "narrowly missing" her two children, set- ting the bed of one afire, and causing "approximately $ 1500 damage" in the home; that she reported the incident to police authorities , the fire department, and the Company, that at a picnic on July 4, 1965, some 7 months later , her 12-year-old son referred to a man who was present with his family as "the man that was on the fence"; and that the man to whom the boy referred is one Lonnie Grady, who had been on strike and whom her husband knew, and that she reported this incident to the police. According to Walter Warner , "on the night of November 15" (the night before the "Molotov cocktail" incident ), as he, one Phil Smock ( identified in the record as plant superintendent in 1962, and , presumably, in a supervisory position at the time in question ), and another person ( apparently an employee ) were coming through the picket line, Hunter said, "I hope you sleep well tonight, Walt." I think it tar more reasonable to construe this remark , if made, as a critical reference to Warner's abandonment of the strike than as a veiled prediction of the "Molotov cocktail" incident, which did not occur "tonight," but be that as it may, Hunter denies making the remark , stating that the only time , while on the picket line, that he spoke to Warner was early in December 1964, and that what he did then was to ask Warner to pay $40 he owed some strikers . Warner's claim does not stand up well under examination . Neither Smock nor Warner's other companion was called to corroborate him, and, more to the point, a written statement, dated November 16, 1964, the day after Hunter is alleged to have made the remark, prepared by Warner for the Company , makes no reference to the alleged remark.is I credit Hunter's denial. The conduct Mrs. Warner describes is outrageous, but the fact is that there is no credible basis in the evidence for imputing any of it to the Union or any of its representatives , and it would be nothing but thin suspicion to attribute any of the conduct to any other person identified in the record , whether Grady or anybody else, and no more than a guess even to say that the disordered person or persons responsible for the "Molotov cocktail " throwing knew about the strike. Evidence of two other incidents should be mentioned before proceeding with conclusions on the bargaining issue. These were related by an employee named Joseph Hill who participated in the strike, engage in picketing , and returned to work in June 1965, about 9 months after the strike began . Hill, it may be noted for future reference , was reemployed by the Company, although he is repeatedly named as a malefactor in the reports made to the Company during the strike. Among the acts of misconduct attributed to him there are throwing rocks at refinery tanks, tripping an employee , throwing an iron bolt at a plant guard , calling him obscene names, threatening to shoot the guard, calling employees vulgar and obscene names, threatening employees , and doing so while under the influence of liquor. Hunter, as a picket captain , testified, without contradiction , that Hill ieported to the picket line while intoxicated , and was removed from picket duty for that reason. Be that as it may, according to Hill , several months after he returned to work, while he was proceeding in his car close to the plant, an unidentified person "fired a pistol at my automobile, hitting the left window at my head," and shattering the glass, but if the incident occurred , it is evident that he is guessing as to the cause of the broken window, for he neither saw the "pistol ," which he later termed a "pellet gun," nor heard the sound of a shot, nor found a bullet or a pellet. Also, he con- ceded that the individual he suspected as having "fired" the "pistol" or "pellet gun" was not a picket , but "a relative to one of the pickets ." (His report of the incident to the Company, however, names a striker, James Long, who engaged in picketing, as the suspect.) According to Hill, also, one morning he found that three tires of his car, while parked in front of his home, had been punctured, and that its air- conditioning and power brake hoses and its fan belt had been cut. He claims he informed the refinery superintendent, Bruce May, of the incident . Presumably, if he did so, the report was oral, for there is no reference to it in the written reports in evidence. 19 See Respondent's Exhibit 7(b). 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since Hill identifies no individual as responsible , it is, in the nature of things, a practical impossibility, short of calling every striker and representative of the Union connected with the strike , for the General Counsel or the Union to refute the implication that either alleged incident arose out of the strike or that the Union or anyone connected with it or the strike had any responsibility in the premises. In any event, Hill's credibility is beside the point, for whatever view one takes of it, or whether or not one believes or suspects that the incidents he describes arose out of the strike, the question is whether the written report he made, and the other one he states he submitted, as in the case of all the other reports in evidence, whether or not the incidents they describe were the subject of testimony, have any material impact on the Company's bargaining attitude or duty, a matter that will be deter- mined later.20 C. Conclusions on the bargaining issues and the cause of the strike As a preliminary matter, I disagree with a contention by the Respondent that it was not obligated to bargain with the Union because the latter instruments of February 2, 1963 (providing for a wage increase), and March 3, 1964 (by which the International acceded to the additional vacation benefit), were of indeterminate duration, and the Union has never complied with the notice requirements of Section 8(d) of the Act, which, in relevant part, provides: That where there is in effect a collective-bargaining contract . . . , the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party to the contract of the proposed termination or modification sixty days prior to the expiration date thereof, or in the event contract contains no expiration date, sixty days prior to the time it is proposed to make such termination or modification; (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute, and simultaneously therewith notifies any State or Territorial agency established to mediate and conciliate disputes . . . ; 2i * * * * * * * the duties so imposed shall not be construed as requiring either party to discuss or agree to any modification of the terms or conditions contained in the contract for a fixed period, if such modification is to become effective before such terms and conditions can be reopened under the provisions of the contract. It is unnecessary to decide, and I intimate no view, as to any circumstances in which either of the letter instruments could be regarded as contracts within the reach of Section 8(d), nor, if one takes them to be thus subject, to explore the effect of the provision relieving parties, in prescribed circumstances, of the duty to discuss modifications of a "contract for a fixed period," for the Respondent's con- tention suffers from the central fallacy that it shears off the fact that the Company bound itself by the "strike settlement agreement " of June 13, 1961 , which "mutually terminated" the 1960 contract, to embark on negotiations for "a new labor agree- ment." It would be an absurdity to say that what the parties visualized by "a new labor agreement" was but a relatively small fraction of the subjects covered by the 1960 contract; and it is plain that the thrust of the parties' commitment was the negotiation of "a generalized code to govern " 22 their collective-bargaining relations as a replacement for the 1960 contract . In other words, whether or not one assumes 201 dispense with a summary of the hearsay reports in addition to references already made to some, since they add nothing of substance to the testimony recounting alleged acts of misconduct. Some of the material in the reports was the subject of testimony, while all or almost all of the remaining reports contain descriptions of picket -line incidents much like those depicted in testimony. 21 As stipulated at the bearing , the Union has not given the notices to the Federal and State conciliation services prescribed in Section 8(d) (3). 22 United Steelworkers of America v. Warrior & Gulf Navigation Go , 363 U.S . 574, 578. MACMILLAN RING-FREE OIL CO. 897 that the Union had an obligation to comply with the notice requirements regarding termination or modification of the wage and vacation arrangements, it obviously had none with regard to all the other mandatory subjects of bargaining encompassed in the Company's commitment to negotiate regarding "a new labor agreement," and the Union's omission to comply with the notice requirements does not immunize the Company from its statutory obligation to negotiate in good faith on such subjects. It is a pervasive fact in this case that the negotiations spanned almost 4 years and that the parties met some 30 times without achieving the "new labor agree- ment" they had committed themselves to seek and, as is evident, the central inquiry here must be why they reached such a fruitless end. Unlike the Respondent in its brief, I am unable to find compelling indicia of the good faith it attributes to itself in the fact that it submitted three full contract proposals; discussed them, as well as those of the Union, at numerous meetings; agreed to a wage increase early in 1963, and an added vacation benefit the following yeas; and made the 41/2-percent offer of September 2, 1964. The Respondent's contract proposals and the numerous meetings may be a badge of bad faith, rather than good, depending on its aims. A single meeting to which the parties bring an honest purpose to reach agreement is something of value, 30 meetings without such an aim are dross; and marathon discussions are, unhappily, a familiar device to fiustrate the bargaining process, as attested by the many cases involving the tactic that have come before the Board over the years. Nor is the incorpoiation, substantially intact, of 14 of the articles of the 1960 contract in the Company's contract proposal of July 27, 1961, as well as in the two that followed, the badge of good faith that the Respondent would make it out to be. Two of the articles (I, "Recognition"; and XVIII, "Military Service") are substantially merely restatements of obligations imposed on the Respondent by law; there is good reason to believe that the benefits covered by three others (XVII, "Sick Leave"; XIX "Jury Duty"; and XX, "Death in the Immediate Family") are provided by the Company for all employees, with or without a union contract; 23 and the remaining nine articles either dealt with subjects of little or no importance (XXII, "Validity"; XVII "Physical Examinations"; and XXVIII, "Notices"), or provided working con- ditions widely in effect in industry, with or without a union contract (V, "Hours of Work"; VII, "Holidays"; XXI, "Clothing Allowance"; and VIII, "Vacations"), or secured the continuation of existing wage and other economic benefits (XXIV, "Maintenance of Existing Benefits"; and X, "Wage Rates and Classification Changes"), or possessed some or all of these characteristics in combination. In short, a test of the good faith of the Respondent's contract proposals is not to be found in the incorporation of these types of provisions but in the Respondent's underlying purpose in proposing, and insisting on, substantial departures from the 1960 contract in areas of vital impact upon the relationship between the employees' bargaining representative and the Company-a matter that will be considered at a later point. The Respondent's agreement to a 5-percent wage increase early in 1963, and its offer the following year of a 41/2-percent increase, payable as wages or pension contributions, are similarly, in the light of the total record, not impressive as an earnest of good-faith bargaining for "a new labor agreement." Signal Hill, Cali- fornia, as is commonly known, and as I judicially notice here, is in an important petroleum producing area that provides employment for a considerable number of persons, and commonsense tells us that the Respondent would be under some necessity to follow industry wage patterns to attract or retain labor in competition with other producers in the area. Indeed, there are clear indications that the Respondent harnessed its wage scales to industry bargaining patterns, agreeing with the Union three times to await the outcome of industrywide negotiations, once in 1962, preceding the wage increase of February 1963, and twice (in the letter agree- ment for that increase and at the December 13, 1963 meeting) prior to the 41/2- 23 A contract between the Company and the Teamsters provides that all employees it covers "shall continue to participate in all benefits heretofore available to the employees, insofar as said benefits refer to the following subjects : sick leave, jury duty and death in the immediate family" [emphasis supplied]. See article XIV, on page 9, General Counsel's Exhibit 3(bb). Moreover, the "Jury Duty" and "Death in the Immediate Family" articles, at least, provide working conditions widely found in industry, with or without union contracts. 257-551-67-vol. 160-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD percent offer the following year. Becker, in fact, portrays himself as asking Cody on three occasions in August 1964 for information as to the "industry pattern," and as assuring Cody in one of the conversations that "we will meet the industry pattern" of 4'h percent. In other words, one may fairly infer that meeting wage norms established by industrywide bargaining is a fact of economic life for the Company. It was forbidden by the Act to make any wage changes in pursuit of these standards without consulting with the International as the employees' statutory bargaining representative, and thus I am unable to draw from the 5-percent wage increase and the 41/2-percent offer 'any significant conclusions concerning the Respondent's good faith in the much broader context of negotiations for a codifica- tion of collective-bargaining relations with the Union that "a new labor agreement" would represent. As for the added vacation benefit, so far from serving as an expression of good- faith bargaining by the Company, the circumstances surrounding it point in a reverse direction. The Union, on a number of occasions, beginning with the start of the negotiations in June 1961, had proposed the added benefit, and Becker had taken the position that the Company could not afford it. Almost 3 years after the initial proposal, the Company notified employees in the unit that it was putting the vaca- tion benefit into effect. The notification affords a revealing glimpse of the Company's attitude toward its bargaining responsibility. The announcement, to be sure, took the form of a copy of a letter to Cody, but, it was mailed to employees on the same day as the letter to Cody, and, they, like Cody, were informed of the added benefit, without any prior arrangement or agreement with the Union. What is more, there is not a word in the body of the letter to suggest that the added benefit had been proposed by the Union or that it was the product of any arrangement or agreement with the Union. On the contrary, the announcement states that the Company "is continually striving to improve its employee program," that the benefit was "(i)n furtherance of this policy," and that "all MacMillan employees" with the prescribed years of service would be given the added week's vacation. This would reasonably lead employees represented by the International, even if they had prior knowledge of its vacation proposal, to believe that the benefit was an act of grace by the Company for "all MacMillan employees" in pursuit of its "policy," rather than the product of the International's representation. That view of the matter is fortified, rather than diminished, by the statement in the letter that "should you [Cody] not wish for MacMillan to grant this new employees' benefit, please advise us," for the reference to the "grant" serves to give additional emphasis to the Company's action as an act of grace. The fact that the added benefit was, upon Cody's request, subsequently embodied in a letter agreement does not alter the underlying thrust of the "grant" and the manner of its announcement; and what is more, there was little or nothing else that the International could do but agree, for it could hardly veto the "grant" of a benefit that it had been seeking for some years, and obviously, too, a veto would invite the employees' displeasure with their bargaining representatives. The method used by the Company to announce and put the benefit into effect appears to me to be distinguished for its slyness rather than as a manifestation of good-faith bargaining; and I am convinced, and find, that the underlying purpose of the procedure was to project an image of the Company as the benefactor of "all" its employees, without regard to union representation, with a corresponding implica- tion for the employees in the unit that their bargaining representative was ineffec- tive, or, in short, to undermine the International's representative status. There is far more in the record pointing to such an aim than the method used to grant the vacation benefit, and this becomes apparent upon consideration of var- ious provisions of the Company's contract proposals, and related positions taken by it, in the negotiating meetings. As matters stood when the present strike began, after more than 3 years of nego- tiations, apart from the subject of a pension plan, the gulf between the parties con- sisted basically of the departures from the 1960 contract embodied in the Com- pany's contract proposal of September 2, 1964, which, as previously noted, was not significantly different (omitting wage and vacation benefit changes in the intervening years) from the contract proposal of October 18, 1962. These departures, among other results, would, if agreed to, include a denial of any provision for union secu- rity, and incorporation of "management rights," "rule infractions," disciplinary and seniority provisions, which, read together, would vest in the Company practically exclusive control over the employment relation (except for the employee's right to MACMILLAN RING-FREE OIL CO. 899 quit), thus, in practical effect, denuding the grievance and arbitration procedures of much of their meaning, if not, in fact, making them an empty shell altogether.24 Obviously, as the capacity of a union to give collective-bargaining protection to those it represents lies at the heart of its ability to retain its mandate from them, the exclusion of the International from any meaningful participation in government of the employment relation to the extent reflected in the Company's proposals, would be, to say the least, a drastic thrust at the International's representative status; and it is thus of prime importance to examine the reasons the Company gave the Union for the course it took, and the justifications its bargaining spokes- man put forward in his testimony. Making such an inquiry, one finds the purported ieasons enmeshed in implausibilities and shifting and inconsistent postions. This is the case with the stated reasons for denying the International any provi- sion for union security The maintenance-of-membership clause of the Company's proposal of July 27, 1961, was itself a substantial departure from the "union shop" provisions of the 1960 contract, and the reason for that, Becker told the Union, was that although the International was a "good" union, "the Local Union was irresponsible" in failing to adhere in 1960 and 1961 to the strike prohibition of the 1960 contract. The Company felt, Becker stated, that the "union shop" provisions "would give too much authority" to the Local in view of "the conduct of the per- sons belonging" to it, and thus decided to propose the maintenance-of-membership clause instead. As for the Company's later shift to proposed "open shop" provi- sions, Becker told the Union's representatives that "after . . the employees who worked during the [1961] strike had their clothes cut off [meaning, according to the sense of Becker's testimony, the cutting of pants "left in lockers"] and acid poured in their shoes and all these things occurred in the plant, we decided we were too liberal . in the form of a maintenance of membership and we should reduce this authority of the Local over the employees and, as a consequence we took out the maintenance of membership clause, substituting the `open shop ' provi- sions in the proposal of October 18, 1962." 25 24 In its brief, the Respondent construes the "management rights" article in its second and third contract proposals as providing that "disciplinary action must be for cause." It is true that the article states that the "Company specifically reserves the exclusive right in its judgment to reprimand , suspend, discharge or otherwise discipline employees for cause," but it is at least arguable that the quoted clause is an express reservation rather than a limitation , and that the article reserved to the management practically exclusive control over the employment relation , apart from the employee 's right to terminate it, in view of the provision that "(e)xcept as explicitly limited by a specific provision of this Agreement, the Company shall continue to have the exclusive right to take any action it deems appropriate in the management of its plants and direction of the work force in accordance with its judgment" In any event, whether or not the "management rights" clause is as limited as the Respondent now claims , I have no doubt that the Company's aim was either to remove discharges and disciplinary actions from the reach of the grievance and arbitration procedures or, at the least, to make these so difficult of applica- tion as to make them practically inoperative. Significantly, in that regard , a clause in the grievance and arbitration provisions of its first proposal (July 27, 1961), taken from the 1960 contract, that disciplinary action or discharge "shall be only for just cause," was deleted from the Company's second and third proposals, both of which added a provision that if the Company claimed a matter not to be arbitrable, the issue "shall first be decided by a court of law" (emphasis supplied). Obviously, taking into account all the possibilities of delay in legal proceedings, it could take years before the Union could even submit an employee's case to an arbitrator. What is more , even before the deletion of the clause that discharge or other discipline be only "for just cause," Becker told the Union at the meet- ing of September 26, 1961, that the exercise of the management's judgment in applying any of the 35 disciplinary rules in the Company's 1961 proposal to discharge or discipline an employee would not be arbitrable. 23 In describing the reasons given by him at the meetings for the Company's union se- curity positions, 'Becker at times refers to "irresponsibility" of "the Union," but it is clear that the term "Union ," as he uses it in the context and at other related places, refers to the Local, as is evident from his testimony that "I explained [in the course of the negotiations] also we felt the International Union was a good Union, but the Local Union was irresponsible and the conduct of the persons belonging to the Local Union caused as not to want to enter into a Union shop agreement with the Union " It may be noted, also, that the "union shop" provisions of the 1960 contract, and the Union's proposals in the negotiations, required membership in the "good" International, the employees' statutory bargaining representative , and not in the Local, whose "authority . . . over the employ- ees" Becker claims he wished to reduce through his proposal denying the International any form of union security. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But, according to Becker, he learned of the incidents in question in July and September of 1961; and it is a fact that he did not make the "open shop" proposal until over a year later, on October 18, 1962, although there were six negotiating meetings beginning with one on September 20, 1961, and ending with one a year later on September 19, 1962. He offers no explanation why he delayed for so long a time, and, in the absence of one, the long delay, spanning a substantial number of meetings, of itself seems odd and casts a shadow over the reasons he gives for the withdrawal of the maintenance-of-membership provisions and the substitution of his "open shop" proposal. More to the point, the professed reasons are tangled in self-contradictions. Under cross-examination, explaining the shift from the "union shop" clause in the 1960 contract to the maintenance-of-membership provisions in the proposal of July 27, 1961, as proceeding from consideration for employees who had entered the Com- pany's employ during the strike earlier that year and did not wish "to join the Union," he testified that "at that time we considered the background and the vio- lence, irresponsibility, and we felt that if the employee had the ability to get out of the Union or not to join it, that this would exercise a certain influence on irrespon- sible conduct " One must assume that the "violence" refers to the poststriking inci- dents, previously described, for there is no evidence of any other "violence" prior to the Company's contract proposal of July 27, 1961, and it is evident that his claim that such incidents were a factor in the maintenance-of-membership proposal is much out of kilter with his testimony that he learned of such incidents from reports to him by the management after he made that proposal; and at odds with his claim that it was these incidents that led him to drop the maintenance-of- membership proposal, and to substitute for it the "open shop" provisions. But these contradictions are not by any means all that ails the Respondent's claims regarding its bargaining stance on union security, for, after Becker's asser- tion, under cross-examination, that the Company had considered the "violence, irre- sponsibility" in making the maintenance-of-membership proposal, he was asked what union "irresponsibility" led him to withdraw the maintenance-of-membership provisions, and he replied: "The conduct in negotiations, Union committee consist- ently refused to get off, to negotiate a new contract as they had stated in the set- tlement agreement of June 13, 1961,.that they would do. They refused to do it by their insisting upon reinstating the old 1960 labor agreement, by the vicious attacks on (sic) Mr. Hunter and Mr. Cody upon the Company representatives at the bar- gaining table and by the conduct in general." It is unnecessary to tarry with the label of "vicious attacks," or pause for long over the singular conception that the Union's representatives were irresponsible in their insistence on "reinstating the old 1960 labor agreement" in the face of man- agement proposals that would not only deprive the employees of benefits they had had under that contract (such as, for example, guarantees against various conse- quences of subcontracting, the requirement of a 48-hour notice of schedule changes, and shift-differential payments for day-shift employees for work after 4:30 p.m.), but would go far toward the devitalization of the International's capacity to protect the employees it represents, if not, for all practical purposes, destroy it. The impor- tant point is that this definition of "irresponsibility" appears for the first time after he had given evidence under direct examination picturing the Company as shifting to the "open shop" proposal because of the poststrike incidents in 1961, and varies considerably from that testimony. Similarly, the purported reasons for the "rule infractions," or disciplinary rules, bog down in material self-contradiction and implausibility. Becker's testimony, would lead one to believe that article XVI(B), "General Provisions," which, together with the 34 disciplinary rules incorporated in it by reference, is set forth in sub- stantially identical terms in the Company's contract proposals of October 18, 1962, and September 2, 1964, was proposed because of "conduct that had been engaged in by the union . conduct we experienced after the strike (that ended June 13, 1961) by the employees after the strike having pant legs cut off and acid in boots, and valves being left on after an employee who happened to be a nonunion employee left his place of assignment, and we felt it was necessary to establish rules of conduct in order to stop this type of activity." There is no identification of any person responsible for such conduct, or that "the union," whether the Interna- tional or the Local, had any responsibility in the premises, or even that the "con- duct" arose out of the strike. (It may be recalled, in that connection, that a letter dated August 10, 1961, from the Company to the police intimates that some of the incidents, at least, were attributable to "a history of hard feelings by some of the employees towards Mr. Harold Dillard," the plant manager.) But passing these MACMILLAN RING-FREE OIL CO. 901 matters, it is a significant fact that the language of article XVI(B) and its related 34 rules are incorporated in practically identical terms in article XV, "General Pro- visions," of the Company's contract proposal of July 27, 1961; 26 and that Becker himself testified that he learned of the poststrike incidents in 1961 "soon after" the proposal of July 27, 1961, receiving reports of them, according to him, from the management in July and September of that year. This testimony is no inad- vertence, for it was repeated, in substance, two or three times. The testimony and the incorporation of the 34 rules in the proposal of July 27, 1961, are plainly at odds with Becker's claim that he proposed the rules and the relevant language of the related article because of the incidents. Moreover, as Cody testified without dis- pute, Becker gave the explanation for the language and the rules in submitting his proposal of July 27, 1961, that MacMillan needed these provisions because they "gave the company better control of the employees"; and there is no indication that he said anything on that occasion about "conduct that had been engaged in by the union." Significantly, too, Becker's purported reasons for the disciplinary rules plainly do not jibe with testimony by Willoughby that the only proposals by the company influenced by union "irresponsibility" were the "union shop clause" and "strike and lockout clause," the first being "the main one," according to Willoughby. From what has been said, it is evident that the claim bottomed on the 1961 inci- dents of plant vandalism bear earmarks of improvisation . There is no evidence that the Company at any time prior to its proposal of October 18, 1962, attributed any iesponsibility for them to the Union, and taking the indicia of contrivance into account, I am impelled to conclude that the effort by the Respondent to link the incidents to the strike that had preceded them, and the attribution of fault for them to the Union, are afterthoughts put forward in this proceeding to give an aura of reasonableness to the Company's continued insistence almost from the inception of the negotiations upon provisions that would reduce various employees' benefits, and terms that would undermine the International's capacity to represent them. Moreover, there is a large disparity between the reasons Becker gave the Union for scaling down various benefits the employees had under the 1960 contract, and rejecting the vacation proposal made in 1961, and the motives he ascribes to the Company under cross-examination. In the course of the negotiations, and under direct examination, he gave cost factors or considerations of efficiency or opera- tional.flexibility, as the case may be, for the provisions in its contract proposal of October 18, 1962, dealing with shift differential pay, notice of schedule changes, subcontracting, leaves of absence, vacations, and premium pay for work on a day off, but, under cross-examination, he took the position that "all" of the provisions of the Company's 1962 contract proposal were "influenced by the Union's irrespon- sible conduct," enlarging on this claim when asked about particular provisions. The following excerpts from the record sufficiently illustrate the vein in his testimony: Q. (By Mr. SHAPIRO.) Directing your attention to Article V of the contract entitled "Overtime and Premium Pay," sir, in what respect did the Union's irresponsibility influence the Company's proposal concerning this article? A. The Union's irresponsible conduct influenced it to this extent, that in considering the overtime clause, we considered the Union 's conduct of the past. Its striking in violation of the contract, striking in violation of no-strike provision, the activities of the Local Union, members of the bargaining com- mittee, the things that happened to non-striking employees after the cessation of the strike on June 31, 1961, and all of this material plus the court decisions and the NLRB rulings and all this had an effect and was considered in our determination upon this clause [emphasis supplied]. 2 The Company 's contract proposals of October 18, 1962, and September 2, 1964, omit one of the 35 rules set forth in the proposal of July 27, 1961. The omitted rule would prohibit an employee from using another's identification, or to allow the use of his by another, for the purpose of entering the plant premises. The fact that the first proposal sets forth 35 "rule infractions," and that the later proposals omit one of them, has no material effect upon the issues. I note, too, that the two later proposals retain a require- ment (item 21 in the first proposal, and item 20 in the subsequent ones) specifying that productivity and workmanship be "up to standard," but omit a qualification that "(t)here will be no immediate discharge" for an infraction "without prior consultation with the Union." 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q Directing your attention, Mr. Becker, to Article XVI-Article VIII enti- tled "Shift Differential" which is on page 7 of the agreement, with respect to this article, sir, tell us in what manner the Union's irresponsibilty influenced your decision to propose this article? A. I understand it, you asked me to what extent the Union's irresponsibility influenced us in their decision to the extent only that we considered in making our proposal. We considered the Union's background and history and we made our pro- posal in light of the background and history. This is the only influence it had on us in this particular section. Q. With respect to Article VII, (of the Company's 1962 proposal), sir, . . . the article entitled "Vacations." . . . to refresh your recollection, . the Union . . . had proposed . . . four weeks vacation (for employees of 20 or more years of service). . to refresh your recollection, your vacation proposal is the same as in the old contract. Now, how, sir, did the Union's irresponsibility influence your vacation proposal . ? A. The Union's irresponsibility, strike history, record of violence on the picket line. These activities influenced our decision on the vacation clause to the extent we considered them and talked about them and made a determination that this type of activity would not have a great bearing on our vacation clause and in view of that, why, we made our proposal on the vacation clause [emphasis supplied]. It is not easy to understand why union "irresponsibility" should prompt the Com- pany to scale down wage standards of its employees provided by the premium pay and shift differential provisions of the 1960 contract, or to reduce an operational benefit to them such as the 48-hour notice of schedule changes, or to reject the request for the added vacation benefit; and, indeed, the testimony of the Company's spokesman in this aspect, as in others, is attended by implausibility and incon- sistency. For one thing, there is no evidence of "a record of violence on the picket line" prior to the current strike, and the claim that it was a factor in rejection of the proposed added vacation benefit for almost 3 years is not credible. Similarly not entitled to credence is his testimony that "the things that happened to non- striking employees" in 1961 influenced his "Overtime and Premium Pay" proposal, for the identical article appears in the Company's contract proposal of July 27, 1961, which he admittedly submitted before he learned of "the things." For another matter, as previously noted, Willoughby contradicts Becker with testimony that the only proposals of the Company influenced by union "irresponsibility" were the "union shop clause" and the "strike and lockout clause"; and what is more, at the 11th negotiating meeting, held on June 12, 1962, Cody asked Plant Superintendent Smock if he could function under the terms of the old agreement, and Smock, requesting and receiving Becker's consent to answer, replied, "I not only can, I have worked under the old agreement," at which point, Becker, notwithstanding his previous consent, said that he was the Company's bargaining representative, and that Smock had no right to answer the question. That was Smock's third negotiating meeting, and his last 27 Significantly, too, the claim of union "irresponsibility" as a factor in proposals that would scale down the economic and operational benefits in question, and in the rejection of the Union's vacation proposal for a period of several years, appears in the testimony for the first time in Becker's cross- examination and is a large departure from the reasons for such proposals he gave the Union, and puts forward in his testimony on direct examination. Moreover, the record is barren of any plausible explanation why union "irre- sponsibility" as an alleged barrier to the proposed added vacation benefit did not exist when the Company, almost 3 years after the proposal was initially made, 27 The Respondent makes a point of the fact that Smock had been in the Company's em- ploy for only about 6 months prior to the meeting, but the fact remains that he was the plant superintendent, and it is reasonable to believe that he would have a first-hand knowledge of operational needs and day-to-day labor-management relations within the plant, in contrast to Becker who is not a member of the Company's management It may be pointed out, too, that Smock's statement is but one of a considerable number of factors, set forth in this decision, that I take into account in passing on the issues MACMILLAN RING-FREE OIL CO. 903 announced to employees in the bargaining unit, without any prior arrangement with their bargaining representative , that it was granting the benefit to "all MacMillan employees" as a matter of "policy," or, in other words, as previously described, used the occasion as a means of undercutting the International . In sum, the claim that union "irresponsibility" was a factor in "all" of the provisions of the Com- pany's contract proposal of October 18 , 1962 ( and, by necessary inference, the same provisions embodied in its contract proposal of September 2, 1964 ), and the repeated assertions of the position addressed to specific terms, as described above, appear to me to be so much mechanical rote rather than candid statements of motive. Turning to the underlying issue of the Respondent 's negotiating attitudes and aims, whether or not one believes that the 15-minute work stoppage in 1960 was as dangerous, without a prior shutdown , as Mays' testimony would lead one to believe, and whether it was the Union or the Company that first breached the "status quo condition" before the walkout in March 1961, there is ample justification in the record for the Respondent's position that the Union breached the strike pro- hibition of the 1960 contract at least by the strike that began in April 1961, and that on the occasion of each work stoppage in 1961,.the action of the participating ,employees in leaving their work stations, without a prior "orderly" shutdown of operations, created a hazard of fire and plant and equipment damage. It is but natural that the Company would be deeply concerned over the fact that the griev- ance and arbitration provisions, and the strike prohibition , of the 1960 contract did not prevent such a condition ; and reasonable that it should seek added protection against its repetition. But it is one thing to say that the Respondent had justification for such a course, and quite another to conclude that that was its aim, and the fact is that considera- tion of the total record reveals evidence in abundance that the Respondent's purpose in the negotiations was to prevent conclusion of "a new labor agreement " and not to achieve one. It is a cardinal fact in this case, notwithstanding the justification for concern by the Respondent regarding strikes in violation of contract , and hazards resulting from strikes without sufficient advance notice, that its use of the claim of union "irresponsibility" to justify its admittedly adamant insistence on large departures from the 1960 contract is caught up in a web of exaggerations, self-contradictions, afterthoughts, inconsistencies, and shifting positions . The stress it now places upon union "irresponsibility " as a justification for its negotiating positions does not quite jibe with its reinstatement of Joseph Hill in the face of repeated reports of serious misconduct by him during the 1964 strike . Willoughby's testimony that only the Company's "union shop " and "strike and lockout " proposals were influenced by union "irresponsibility" of itself is sufficient warrant to discount the elaborate struc- ture of bargaining positions the Company 's spokesman in the negotiations rests on the claims of union "irresponsibility" he now puts forward, but, in addition, these contentions are so enmeshed in shifting and inconsistent positions , previously described , so beset with afterthoughts , such as the attribution to "the union" of responsibility for the 1961 acts of plant vandalism, which Becker admittedly did not know about when he made his 1961 contract proposals , and the manifestly self-contradictory claims that various provisions of that proposal , including the scal- ing down of employees' benefits , were influenced by such incidents, as to warrant an inference that the Respondent is using the claims of union "irresponsibility" as a facade for a negotiating aim it has chosen to conceal. That aim , I am convinced , was to prevent the conclusion of "a new labor agree- ment," and the purpose appears clearly in ' the Company's negotiating tactics directed to matters of vital importance to the International 's representative status and capacity. The basic method used was not to retain as much as possible of the 1960 contract , as Becker claims in his testimony , but to take away much, by omis- sion or substitution , related to that capacity (not to speak of the scaling down of various employees' benefits ); to inject proposals into the negotiations carrying an aura of inhibition upon the International and the employees it represents , and then increase the climate of inhibition and disparagement of the bargaining representa- tive, as the meetings and the years wore on , with the injection of additional restric- tive proposals that, especially in the light of prior discussions, were predictably unacceptable to the Union , and forseeably productive of deadlock . The examples of the method that follow will illustrate the point. After more than a year of fruitless negotiations , the maintenance -of-membership proposal, itself a large departure from the "union shop" provisions , was discarded, 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and the "open shop" clause substituted, upon the purported justification of the acts of plant vandalism more than a year earlier. The right of the Company to seek agreement on an "open shop" is not at all in dispute, but there is also no doubt that it has no right to use the proposal for the purpose, and with the intention, of bring- ing about a deadlock. It is utterly unbelievable that Becker, who has had legal training and substantial experience in labor-management relations, having served for 3 years as Regional Director of the Board's Region 21 (Los Angeles), would, in the context of circumstances, ever expect the International to accept the thrust at the jugular of its representative status that the "open shop" proposal implied; and bearing in mind that the attribution to "the union" of responsibility for the acts of vandalism in 1961 is nothing but a pretext for the proposal, and that Becker uses it in his testimony at one point even as an explanation for the maintenance-of- membership proposal, which he made before he had any knowledge of the inci- dents, it is equally incredible that he had any other aim than to deadlock the nego- tiations by a tactic of departure, by stages, from full union-security arrangements, including checkoff provisions, to the modified union security reflected in the maintenance-of-membership provisions, and, finally, after more than a year of dead- lock to the "open shop" proposal. The proposed disciplinary rules have a surface innocence that drops away upon examination and that cannot be restored by all the stress the Respondent puts upon union "irresponsibility" as the guide to its claimed bargaining purposes. One may reasonably believe a claim that the purpose of such rules was to give the manage- ment "better control" over the employees, as Becker told the Union in submitting the rules as part of his contract proposal of July 27, 1961, except that he goes much farther and says that the rules grew out of the acts of plant vandalism in 1961, of which he was admittedly unaware at the time of that proposal, not to speak of the fact that the claim is in conflict with Willoughby's testimony that union "irresponsibility" influenced only the Company's "union shop" and "strike and lockout" proposals. Then why the numerous "rule infractions," some vague and general such as "Interference with plant discipline or efficiency" or "Productivity and workman- ship not up to standard," some prohibiting major misconduct such as theft or dan- gerous activities such as the possession of weapons and explosives. There is no evi- dence that at the time of the initial submission of the rules Becker was aware of any conduct in the plant that would come within the reach of any but a small fraction of them. (Conceivably, the prior work stoppages would be subject to rules prohibiting employees from leaving their place of work or the plant during work- ing hours without permission, or habitual absence, or disregard or violation of safety regulations or practices.) Becker's testimony does not make us privy to the real motive for the proposal. But it is only reasonable to believe that a person with his experience in labor-management relations would know that such rules, espe- cially when harnessed to a provision vesting the Company with discretion to expand the list, were weighted with problems for the employees' bargaining repre- sentative, and that these would grow heavier and more unacceptable to it as the Company injected positions vesting it with absolute control over the application of the rules, both those that are clear and those that are vague. That, basically, was the course the Company's spokesman took. The application of the rules, he told the Union several months after their sub- mission, would not be subject to arbitration, although the grievance and arbitration article of his 1961 contract proposal expressly provided that discharge or discipli- nary action "shall be only for just cause." But the matter by no means rested there, for the Company's 1962 proposal not only shifted to the "open shop" provisions, but omitted the requirement of "just cause" as a condition of discharge or disci- pline, and injected into the negotiations, already deadlocked over a year and heavily weighted with many issues, including curtailment of various employees ben- efits, a sweeping "managements rights" article (which, according to Willoughby's tes- timony, was not influenced by union "irresponsibility") and a singular clause that would vest only in the Company a right to have "the matter of arbitrability . . . first . decided by a court of law," provisions of obvious impact on the numer- ous disciplinary rules and, plainly, if accepted by the International, a virtual denial of any effective contractual means to protect the employees against unjust applica- tion of the rules short of the burdens of litigation, including possibilities of long delay leading to academic results, that the Company could at any time it chose impose on any effort by the International to seek arbitration. It is of no moment here whether this proposed shackle on the arbitral process is a regressive departure from modern standards of collective bargaining, nor is there MACMILLAN RING-FREE OIL CO. 905 any suggestion that the proposal, standing alone, in any way offends the Act; what is in point is its purpose in the negotiations. According to Becker, he told the Union that the proposal was "in keeping with the Supreme Court decisions rather than have the arbitrator make this determination of his own jurisdiction." The allu- sion to "Supreme Court decisions" is a reference to a group of cases, all dealing with arbitration, sometimes called the "trilogy" (as Becker refers to them), includ- ing United Steelworkers v. Warrior & Gulf Navigation Co, 363 US. 547, where the Court, noting (at page 582) that "arbitration is a matter of contract and a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit," held (at page 585) that "only the most forceful evidence of a purpose to exclude the claim from arbitration can prevail ... 28 Of course, there is not the slightest intimation by the Court that provisions such as the one in question are desirable; on the contrary, it describes at some length the beneficent role of arbitration in collective-bargaining relations, expressing the view (at page 582) that the "ablest judge cannot be expected to bring the same experience to bear upon the determination of a grievance" (as the labor arbitrator the parties choose); but passing that, it is a fact that the Warrior case and its two companions were decided by the Supreme Court in June 1960, more than 2 years prior to the relevant proposal, and if the purpose was to be "in keeping with the Supreme Court decisions," the Respondent offers no explanation why its spokes- man, with his legal training and experience in the field of labor-management rela- tions, did not include the proposal in his contract draft of July 27, 1961, but waited until the parties had been in a state of deadlock for substantially more than a year before submitting it. Significantly enough, as Cody testified without dispute, at the meeting of September 26, 1961, Becker offered "the Supreme Court rulings" (plainly, a reference to the "trilogy" cases) as the explanation for the far less restrictive "management rights" article of the Company's 1961 contract proposal, which did not have the hobble on arbitration included in its 1962 pro- posal. In the perspective of the whole record, there is ample warrant for an infer- ence, and I am persuaded, that the relevant restriction on arbitrability was injected into the negotiations not because of union "irresponsibility," nor with any aim of securing agreement to the clause, but as an additional obstruction to the conclu- sion of "a new labor agreement." In my judgment, too, such an object was the underlying aim of the written pro- posal submitted by the Company at the meeting of December 4, 1964, some 2 months after the start of the current strike. The proposal, it will be recalled, was an addition to the article prohibiting strikes and lockouts, which appears in iden- tical terms in all three of the Company's draft contract proposals. The addition would not only obligate the Union to pay "each striking employee" substantially the equivalent of his wages "anytime a strike, work stoppage or other concerted activity occurs by the employees covered hereunder during the term of this Agree- ment," but would extend the requirement for a year beyond the contract's termina- tion, or, in other words, for a period of as much as a year even when no contract is in effect. Becker was asked at the hearing whether he expected Cody to agree to the pro- posal, and he replied, "I did not know whether he would or not"; and that his purpose was "to stimulate negotiations." It was "a strategy movement on my part," Becker testified, "to endeavor to cause the union to do something . . . so that I could do something." Asked whether he withdrew the proposal in view of the evidence that it did not have the effect he claims he sought, he testified that he did so "at the bargaining table" because of the "opposition from the union," and that he "never again talked about it"; but questioned as to the manner of with- drawal, he testified: "Just a mental withdrawing of it, and in future negotiations I would offer the contract I proposed on September 2nd, 1964 with the 41/2 per cent wage increase." However, following an overnight recess, he changed this testimony, stating that he had refreshed his recollection from his notes, and that he had expressly informed Cody at the meeting of January 28, 1965, that the Company had withdrawn the proposal. Cody denies being so informed, and the Respondent itself supports the denial, adducing testimony by Willoughby that the proposal was never "referred to again by the company" after the meeting of December 4, 1964. I credit Cody. 29 The two other cases in the "trilogy" are United Steelworkers v. American Manufac- facturing Co , 363 U.S. 564, and United Steelworkers v. Enterprise Wheel & Car Corp , 363 U S. 593. 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover, there is manifest implausibility in the claim that the addition to the "strike and lockout" article was proposed "in an effort to stimulate negotiations." It must be borne in mind that by that time there had been some 24 meetings over a period of substantially more than 3 years without the fruit of "a new labor agreement"; that a strike had broken out, with attendant expressions of hostility and recrimination, and was in progress when the proposal was made; and, as is obvious, the strike was caused in some degree at least by the Company's adamant adherence to proposals that, if adopted, would materially weaken the Inter- national's representative status. In that setting, it imposes a large burden on one's sense of the rational to believe that Becker, with his experience, was motivated by an aim "to stimulate negotiations" The proposal to impose financial penalties on the Union in the event of a strike during a period when it had no contract was not only predictably unacceptable but predictably inflammatory in the setting in which it was offered. Significantly, in that regard, Becker himself describes Cody as objecting "quite strenuously" to the proposal, and as saying that he had "never heard of anything like this before"; and Becker pictures himself as agreeing that "it was probably true" that no union had ever signed "anything like this." Surely, he must have known that if anything would be "stimulated," it would not be "negotiations" looking toward agreement. Nor will the credible evidence support a conclusion that the proposal was the result of any picket line or other misconduct during the course of the strike that was then in progress, as the Respondent would lead one to believe. According to Becker, he not only frequently conferred with Willoughby about negotiating posi- tions, plant operations, and "violence on the picket line" since the start of the present strike, but reviewed such matters with Roy Waer, a director of the Company, its vice president in charge of Pacific coast operations, and the source of Becker's bargaining authority, talking to Waer "practically every day" from the inception of the 1964 strike. Willoughby quotes Becker as telling him prior to the presenta- tion of the relevant proposal to the Union that he felt it was needed "in view of the violence on the picket line and the activities that had continued." But this is manifestly at odds with testimony by Becker that he "expected by this pro- posal to only stimulate [Mr. Cody] and get some movement," and that it "was a strategy movement on my part to endeavor to cause the union to do something so that I could do something." Moreover, Waer gave testimony to the effect that his discussions with Becker since the start of the present strike did not "involve any particular bargaining position," and "did not influence us to get rougher or harder or tough." From Waer's testimony, it would appear that his discussion of the proposal was perfunctory, for what took place, according to his account, was that Becker gave him the proposal, and that he read it, asked Becker whether he recommended it, received a reply from the latter that he thought "it is all right," and told Becker, "Well, I will go along with you." I am convinced, in short, that the purpose of the proposal was not "to stimulate negotiations," but to obstruct them and accentuate the deadlock. The Respondent would equate the Union's continuing insistence on a contract in the main the same as the 1960 agreement, and its efforts, as the negotiations wore on, to secure added benefits, with the Company's insistence on its terms and its efforts to scale down or eliminate provisions of the 1960 contract, but the analogy is mechanical rather than real. There can be no doubt, as the position implies, that rigidity of position on mandatory subjects of bargaining or the pursuit of changes in contract terms dealing with such subjects, whether upward or downward, better for oneself or worse for the other side, is not per se unlawful, but that conception is wholly beside the point, which is, that the Union sought "a new labor agree- ment" over the years, and the Company, in decisive contrast, sought to prevent one through negotiating positions and methods aimed at frustrating the bargain- ing process. My assessment of the Respondent's negotiating aims does not turn on Becker's query whether Cody had "had enough" when the latter gave the strike warning at the meeting of September 2, 1964, although in the light of the long train of fruit- less discussions that had gone before, interlarded with mounting proposals to inhibit the International's capacity to protect the employees it represents, it is reasonable to read the rhetorical query as a veiled intimation that he had thus far defeated the Union's efforts to conclude "a new labor agreement," and that more of the same was in store for the Union, as, indeed, it was, as evidenced not only by the Respondent's continuing insistence on proposals it had made for the purpose of preventing agreement, but by the injection into the negotiations of the proposal of December 4, 1964, with the aim already described. MACMILLAN RING-FREE OIL CO. 907 Summarizing the matter, the Respondent's bad faith in the negotiations is abun- dantly established by the evidence of a purpose to prevent agreement through its piogressive injection into the negotiations , as time went on, of mounting proposals for inhibition of the International's representative capability and status ; the method used in 1964 to announce and put into effect the vacation benefit proposed by the Union almost 3 years earlier; and the Company 's foot-dragging in arranging a meeting and submitting a "final proposal " following the session of December 13, 1963, as evidenced by the broken promises to arrange one made at that session, and in the Company 's letter of March 30, 1964 , by the fact that no•meetmg was held between December 13, 1963, and May 7, 1964 , and then only upon the Union's initiative, and by the Company's failure to submit a "final proposal" until Septem- ber 2, 1964 (which, apart from the oral 4'h-percent offer that followed the indus- try's bargaining pattern in amount, was substantially the same, for all practical purposes , as its contract proposal in 1962). The strike that began on September 8, 1964, was no doubt called in support of the International 's contract aims, but the origin of the strike , and its prolongation, are rooted in the Respondent 's conduct aimed at preventing "a new labor agree- ment" to replace the 1960 contract. That conclusion is in no way affected by the testimony and hearsay reports bearing on allegations of misconduct during the strike. The fact-finder 's duty to hew to the material evidence and issues is not diminished by his condemnation of misconduct, whether connected with the strike or not, and whether serious or not. There is no point in embarking on a detailed sorting out of acts of misconduct, either those alleged in the reports or the subject of testimony , with a view to deter- mining those , such as picket line incidents , for which the Union may be held respon- sible; or those not proven to be attributable to the Union, or connected with the strike. It is a simple calendar fact that such incidents have no bearing on the Com- pany's negotiating aims and attitudes prior to the strike, nor, obviously , any con- nection with its cause . And it is abundantly clear, and I find, that the Respondent's negotiating attitude and goals regarding "a new labor agreement " have not been materially different within the 6-month period preceding the filing and service of the charge, and since then, including the period since the current strike began, from what they were prior to May 10, 1964 , evidencing the same design to frus- trate the bargaining process and prevent the conclusion of such an agreement, and by the same methods, exemplified by continued insistence , within the 6-month pe- riod, and since , upon positions born of that design and variously embodied in the Company's contract proposals of July 27, 1961, October 18, 1962, and Septem- ber 2, 1964, and by the proposal of December 4, 1964. That being the case, it is also plain that the Respondent 's negotiating positions have not been shaped by any of the reports of misconduct it received during the current strike , whether or not the incidents in question are properly attributable to the Union. Finally, I find no merit in the Respondent's claim that its bargaining duty has been suspended as a result of misconduct by "pickets and striking employees" since the strike began. Were that position accepted "it would mean that, at the very point when an industrial controversy becomes most bitter and when the collective bar- gaining provisions of the Act should provide a peaceful means of settlement those provisions are cast aside and the employer is permitted to engage in unrestricted violation thereof." ( Reed & Prince Manufacturing Company, 12 NLRB 944, 971.) 29 The Respondent's bad faith in the negotiations was the basic cause of the strike, and has prolonged it; and, plainly , it would be as much as to reward the Respond- ent for its violation of its bargaining duty to hold that its obligation has been sus- pended for the reason it assigns.so In sum, for the reasons stated, I find, upon the whole record, that the Company has failed and refused within 6 months preceding the filing and service of the charge in this proceeding , and since , to bargain in good faith with the Interna- tional regarding terms and conditions of employment of the employees in the unit found appropriate above, and has thereby violated Section 8(a)(5) of the Act; that by such conduct, the Company has abridged rights guaranteed employees by 2^i Entd, 118 F 2d 874 (C A 1) . see, also IN L R B v Remington Rand , Inc, 94 F 2d 862, 872-873 (CA 2) 20 Kohler Co , 128 NLRB 1062, 1087-88, cited by the Respondent , is inapposite Among other distinguishing features , the strike there was not caused by the employer 's unfair labor practices. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 7 of the Act, thus violating Section 8(a)(1) of the statute; and that by such unfair labor practices it caused, and has prolonged, the strike that began on September 8, 1964.31 D. The alleged violations of Section 8(a)(3) As of December 1964, four of the striking employees 32 had neither received vacations in 1964 nor had been given vacation pay in lieu thereof. There is no dispute that they had sufficient tenure, under existing company policy, to qualify them for vacations, and that they would have received vacations but for the strike. One of the men, Stuart H. Wakefield, had been scheduled to take 2 weeks' vaca- tion beginning September 10, 1964, according to a notice of vacation schedules posted by the Company the preceding April. At the meeting of December 4, 1964, the Union inquired of the Company when employees who had "earned," but had not received, vacation pay would be paid, and Becker said that he would look into the matter. • Some 4 or 5 days later, Cody made a similar inquiry of Willoughby, either in person or by telephone (the accounts vary). Willoughby assured Cody that the men would be paid what was due them.33 About a week later, Cody telephoned Willoughby about the matter, and the latter stated that while the Company "did not deny that they [the four men] had earned the vacation pay," the Company "had a policy of not paying personnel in lieu of vacation," believing that "vacations were taken as a rest from work," and "felt they [the four strikers] were not entitled to it unless they returned to work, or until they resigned from the company." This statement of "policy" is not quite accurate, judging by the vacation article of the 1960 contract and the Company's subsequent proposals, for all these contain a provision that "newly hired employees shall, upon completion of their first year's service, take their pro rata vacation, or receive their pro rata vacation pay to January 1, so that January 1 will thereafter become their vacation anniversary" [emphasis supplied]. Although the 1960 contract Ms long been terminated, it is evident from the incorporation of the vacation article of that agreement in the Company's 1961, 1962, and 1964 contract proposals (the last as modified by the added vacation benefit granted early in 1964), and from Willoughby's remark that the men "had earned the vacation pay," that the vacation policy set forth in the agreement and the proposals, as modified by the added vacation benefit, was in effect at least until the start of the strike. Be that as it may, in the latter part of 1964, Wakefield filed a complaint with the California Department of Industrial Relations, seeking payment of vacation pay claimed to be due, and at a hearing before an official of that agency in Feb- ruary 1965, Willoughby agreed that "these vacations were due" the men in ques- tion, but that "the vacations would not be paid until [sic] the duration of the strike." Following the hearing, the Company, on or about July 15, 1965, paid each of the four men the amount each claimed to be due him as vacation pay. The Company's conduct in refusing to make the vacation payments, when requested, and in continuing to withhold them, as described above, was unlawful. The strikers, who were "employees" within the meaning of Section 2(3) of the Act, had concededly "earned" vacations under existing company policy, and to engraft on that policy a condition that they be denied what was due them "unless they returned to work, or until they resigned" was as much as to penalize them for striking. The proof of that is perhaps best exemplified by Wakefield's experience. He had for some months been scheduled by the Company to begin his vacation on 31In view of the finding that the Respondent has failed and refused to bargain in good faith, I see no point in passing on allegations of the complaint that it has separately violated the Act by its proposal of December 4, 1964 ; and by its insistence at the meeting of November 6, 1964, upon discussing only its wage proposal, and its related rejection of the Union's proposal that other subjects be discussed as well at the meeting To pass on such separate allegations of statutory violations would neither add to, nor detract from, the remedy to be recommended below. 32 Forest R. Bumgarner, Leslie E. Omo, James R Northrop, and Stuart H. Wakefield 33There are some variances between Cody's version of the conversation and that of Willoughby, but these need not be resolved. Both accounts, in substance, reflect an as- surance by Willoughby that the men would be paid what was due them. MACMILLAN RING- FREE OIL CO. 909 September 10, 1964, and, in fact, went on vacation for 2 weeks starting on the scheduled date, although after the strike began . To refuse to pay him unless he returned to work or quit was plainly a penalty forbidden by the Act. I find that by denying and withholding the vacation pay from the four employ- ees, as described above, the Company discriminated against them because they engaged in a union activity, thus violating Section 8(a)(3) of the Act; and abridged Section 7 rights of employees, thereby violating Section 8 (a)(1) of the Act. The remaining allegation of discrimination centers on a claim by the General Counsel that the Company conditioned the reinstatement of two employees, Ray- mond Aker and Walter Warner, upon their discontinuance of membership in the Local. In the latter part of October 1964, Aker, who had engaged in picketing over a period of some weeks during the current strike , inquired of the Signal Hill plant's office manager, Cliff Caillard, about the prospects of returning to work , stating that he would like to talk to Becker about the matter. The result was that the office manager made an appointment with Becker for Aker, and when Warner called that day and said that he wanted to talk to someone about returning to work, Cail- lard suggested that he accompany Aker. The two called on Becker at the appointed time. The record contains versions of the conversation by the three participants. Dur- ing its course, according to all three, Aker and Warner expressed concern to Becker that they would be fined by "the Union" if they went through the picket line to return to work. Aker, called by the General Counsel, testified, in substance, that he asked Becker whether he would be fined, and whether he would "have to resign" his union membership ; and that Becker told him that he could not answer that, but that he (Aker) had a right to resign if he wished. Warner, also called by the Gen- eral Counsel, testified much to the same effect. According to Becker, he told the two men at the inception of his remarks that "I can't advise you . . . . I can't tell you anything. All I can do is listen to your questions." Although he describes himself as repeatedly telling them that he could not advise them as to the course to take, and did not know what course the Union would follow regarding a fine, he also testified that after repeated statements by Aker that he lacked money and needed a job, and a request for advice by both men whether they could "resign from the Union," he told them that usually "in private organizations you get out the way you get in," and that if he wished to resign from an organization, he would so inform it. According to Becker, also, asked by the two men how they should proceed, he told them, "I don't know," but that when he wishes to make a record of a communication with another party in cer- tain situations, he does so by sending the other a telegram. Some days later, each of the two employees sent a telegram to the Local, stat- ing in almost identical terms that he was resigning from the Local, "effective immediately." Several days later, on November 10, both returned to work at the Signal Hill plant. The versions of the conversation summarized above do not reflect the reinstate- ment condition alleged by the General Counsel , but in the course of Aker's testi- mony, it developed that he had given a sworn , signed statement to a representative of the General Counsel about a month after the conversation , quoting Becker as saying, "If you want to go back to work , you will have to resign from the Union. Just send a telegram to the Union telling them you are resigning . . . I took it that if all the men came back to work, it wouldn't be necessary to resign from the Union, but if the men remained on strike and I wanted to go back to work, I would have to resign from the Union." After reading the statement, Aker agreed that he had told the General Counsel's representative what was in the statement, and that it is "correct," but subsequently he stated that "Mr. Becker didn't tell me I had to resign," but that in response to a query as to what Becker "would do," the latter replied , "I would resign and go back to work." Although called by the General Counsel, both Aker and Warner, in demeanor and tone, evidenced reluctance to testify and some hostility toward the idea, and this, it seems to me, gives added point to Aker's affirmation that his prior sworn statement is "correct." Moreover, Becker's account reflects a repetitious, self-serving emphasis upon his reticence in giving the men any advice that is not quite in harmony with testimony he gave indicating that he did advise them, however dressed up in terms of what he would do if he were in their place. On the other hand, it is not inherently implausible that the two employees were concerned at the prospect of a fine, and asked for, and received, advice as to the 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD means of avoiding it; whether,or not one accepts the 'portrayal of dissolving reti= cence to give advice, in the face of Aker's disclosure of his necessities, drawn in Becker's account; and Aker's affirmation that his prehearing statement is "cor?ect" is, in my judgment, too thin a platform to support the General Counsel's claim. The very statement suggests a possibility that Aker may, be interpreting Becker rather than quoting him, for he says there that he "took it" that he would have to resign from the Union as a condition of reemployment only if the other employ- ees remained on strike. In short, the General Counsel has not carried his burden of proof in the premises, and, accordingly, I shall recommend dismissal of the rele- vant allegation. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in con- nection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Company has engaged in unfair labor practices violative of Section 8(a)(S), (3), and (1) of the Act, I shall recommend below that it cease and desist therefrom and take certain affirmative actions designed to effec- tuate the policies of the Act. Because of the nature of the unfair labor practices found above, amounting, as they do, to rejection of basic premises of the Act, and in order to make effective the interdependent guarantees of Section 7 of the Act, I shall recommend an order below which will have the effect of requiring the Company to refrain in the future from abridging any of the rights guaranteed employees by said Section 7.34 As it has been found that unfair labor practices by the Company caused, and have prolonged, the strike that began on September 8, 1964, I shall recommend that upon unconditional request by, or on behalf of, any employee who engaged in the strike, and has not yet been reinstated to his former, or a substantially equivalent, position, and is entitled to such reinstatement under existing law, the Company shall immediately reinstate such requesting employee to his former, or a substantially equivalent, position,35 without prejudice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement, any employee hired on, or since, September 8, 1964; that in the event of a failure or refusal by the Company to reinstate any such requesting employee entitled to rein- statement, as provided herein, the Company shall make such employee whole for any loss of pay he may suffer by reason of such failure or refusal, together with interest at a rate of 6 percent per annum; and that such loss of pay and interest be computed in accordance with the formula and method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing and Heating Co., 138 NLRB 716, to which the parties are expressly referred. Upon the basis of the foregoing findings of fact, and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. MacMillan Ring-Free Oil Co., Inc., is, and has been at all material times, an employer within the meaning of Section 2(2) of the Act. 2. The International and the Local are, and have been, at all material times, labor organizations within the meaning of Section 2(5) of the Act. 34 N L R.B. v. Entwistle Mfg. Co , •120 F.2d 532 (C A. 4) ; May Department Stores Co , d/b/a Famous-Barr Co. v. N L.R.B., 326 U.S. 376; Bethlehem Steel Company v. N L R.B , 120 F 2d 641 ('CA.D.C ). 151n accordance with the Board's past interpretation, the expression "former, or a sub- stantially equivalent, position" Is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position " The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. MACMILLAN RING-FREE OIL CO. 911 3. All production and maintenance employees , including stillmen, loaders, labor- ers, utihtymen, and all laboratory testers and loading clerks , employed by the Com- pany at its facility in Signal Hill, California , excluding all office clerical employees, guards, professional employees , and supervisors as defined in the Act, constitute, and have constituted at all times material to the issues , a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. The said International has been, at all times material to this proceeding, and is now, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining , within the meaning of Section 9(a) of the Act. 5. By failing and refusing to bargain collectively with the International, as the exclusive representative of the employees in the aforesaid unit, as found above, the Company has engaged in, and is engaging , in unfair labor practices within the mean- ing of Section 8(a)(5) of the Act. 6. By denying and withholding vacation pay from employees , as found above, the Company has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By abridging the exercise of rights guaranteed employees by Section 7 of the Act, as found above, the Company has engaged, and is engaging , in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. 9 The strike that began on September 8, 1964 , was caused , and has been pro- longed, by the Company's unfair labor practices , as found above. 10. The record does not establish that the Company has conditioned the employ- ment of employees upon their withdrawl from any labor organization. RECOMMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this proceeding , I recommend that MacMillan Ring-Free Oil Co., Inc., its officers, agents, successors, and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining representative of its employees in a bargaining unit consisting of all production and maintenance employ- ees, including stillmen , loaders, laborers, utilitymen, and all laboratory testers and loading clerks, employed by the Company at its facility in Signal Hill, California, excluding all office clerical employees , guards, professional employees , and super- visors as defined in the Act. ( b) Discouraging membership of any of its employees in Oil , Chemical and Atomic Workers International , AFL-CIO, or in any other labor organization, by denying or withholding from any employee any privilege , benefit, money, or other thing of value due 'him, because of his membership in, or activities with, or on behalf of, any labor organization. (c) In any other manner interfering with , restraining, or coercing employees in the exercise of any rights guaranteed them by Section 7 of the National Labor Relations Act, as amended. 2. Take the following affirmative action which , I find, will effectuate the policies of the Act: (a) Upon request , bargain collectively with Oil, Chemical and Atomic Work- ers International Union, AFL-CIO, as the exclusive representative of the employees in the bargaining unit found appropriate above, with respect to their rates of pay, wages, hours of employment , and other terms and conditions of employ- ment; and if an agreement is reached , embody it in a signed contract. ( b) Upon unconditional request by, or on behalf of, any employee who engaged in the strike that began on September 8, 1964, and has not yet been reinstated to his former, or a substantially equivalent , position, and is entitled to such reinstate- ment under existing law, immediately reinstate such employee to his former , or a sub- stantially equivalent position , without prejudice to his seniority and other rights and privileges, discharging, if necessary to effect such reinstatement , any employee hired since the inception of, or during, the said strike; and in the event of failure or refusal by the Company to reinstate any such requesting employee entitled to reinstatement, 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as provided herein , make such employee whole, together with interest , to the extent of, and in accordance with, the manner and method prescribed for such employee in section V, above, entitled "The Remedy." 36 (c) Post at its place of business in Signal Hill, California, copies of the attached notice marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of Region 21 of the National Labor Relations Board , after being signed by a duly authorized representative of the Company, shall be posted by it immediately upon receipt thereof, and 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 said Company to insure that said notices are not altered , defaced, or covered by any other material.37 (d) Notify the said Regional Director, in writing, within 20 days from the receipt of a copy of this Decision, what steps the Respondent has taken to comply herewith.38 IT IS FURTHER RECOMMENDED that so much of the complaint be dismissed as alleges that the Respondent conditioned employment of employees upon their with- drawal from the Local, and thereby violated the Act. as The purpose of expressly limiting the reinstatement right to those "entitled" thereto is to reserve to the Respondent any right it has, under existing law , to deny reinstatement to an employee because of misconduct by him arising out of, and in connection with, the strike. Should the Respondent deny reinstatement to any employee on that ground, the propriety of its action , and the backpay due if there is insufficient ground for its action under existing law, are reserved for determination in the compliance stage of this proceeding 31 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice . In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 38 In the event that this Recommended Order is adopted by the Board , this provision, shall be modified to read : "Notify the said Regional Director , in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT refuse to bargain collectively with Oil , Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining represent- ative of our employees in a bargaining unit consisting of all production and maintenance employees , including stillmen, loaders, laborers, utilitymen, and all laboratory testers and loading clerks , employed by us at our facility in Signal Hill, California, excluding all office clerical employees, guards, profes- sional employees, and supervisors as defined in the Act. WE WILL NOT discourage membership of any of our employees in Oil, Chemi- cal and Atomic Workers International Union, AFL-CIO, or in any other labor organization, by denying or withholding from any employee any privilege, benefit, money, or other thing of value due him, because of his membership in, or activities with, or on behalf of, any labor organization. WE WILL NOT in any other manner interfere with, restrain, or coerce any of our employees in the exercise of any rights guaranteed them by Section 7 of the said Act. WE WILL, upon request, bargain collectively with Oil, Chemical and Atomic Workers International Union, AFL-CIO, as the exclusive bargaining repre- sentative of the employees in the unit described above, with respect to rates of pay, wages , hours of employment, and other terms and conditions of employment; and if an agreement is reached, embody it in a signed contract. UNITED MINE ,WORKERS OF AMERICA , , , 913, WE WILL, upon request, or on behalf of, any employee who engaged in the strike, and has not yet been reinstated to his former, or a substantially equiva- lent, position, and is entitled to such reinstatement, immediately reinstate such' employee to his former, or a substantially equivalent, position, without preju- dice to his seniority and other rights and privileges , discharging, if necessary to effect such reinstatement , any employee hired since the inception of, or during, the strike ; and in the event we fail or refuse to reinstate any such requesting employee entitled to reinstatement, as provided herein , WE WILL reimburse such employee for any loss of pay he may suffer by reason of such failure or refusal. MACMILLAN RING-FREE OIL CO., INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date of posting and must not be altered , defaced , or covered by any other material. Information regarding the provisions of this notice and compliance with its terms may be secured from the Regional Office of the National Labor Relations Board, 849 South Broadway, Los Angeles, California 90014, Telephone 688-5204. United Mine Workers of America and Chapel Coal Company. Case 6-CB-1P209. September 7,1966 DECISION AND ORDER On June 6, 1966, Trial Examiner Harold X. Summers issued his Decision in the above-entitled proceeding, finding that the Respond= ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a brief in support thereof. The General Counsel filed a brief in answer to the Respondent's exceptions. 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 Brown , rind 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 entire record in this case, including the Trial Examiner's Decision, the exceptions, and the briefs, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, as modified herein. 160 NLRB No. 75. 257-551-6,7-vol . 160-59 ,