Farmers Co-Operative Gin Association

FARMERS CO-OPERATIVE GIN ASSN. 887 major fires at the plant since 1952. This, he suggests, and the fact that it has never been shown that earlier fires were caused by paper trash, removes any logical connection between the rule and the fires. On the contrary, just as establishing an adequate sprinkler system might explain a building's fire-free record, so here it is quite reasonable to assume, and I do, that the establishment of a rule to eliminate potential paper trash might logically explain the absence of fires since the rule was imposed in 1954. Directing ourselves to the enforcement of this rule, the circumstances of Camp- bell's several encounters with Plant Superintendent Ragan respecting it disclose a brand of insolence not normally tolerated in an employer-employee relationship, and sufficiently grievous to justify discharge under usual circumstances. To be sure, Section 8(a)(1) and (3) of the Act was designed to protect employees who would engage in concerted activity or join a labor organization. I know of no authority, however, for the proposition that these sections were similarly designed to insulate obstreperous employees from normal discipline. As I have found that the rule to which Campbell's insolence is related is one that was amply justified as a safety measure and in no way motivated by union considera- tions I would conclude and find that Campbell's discharge was for cause and in no way related to his union membership or activity." I would accordingly recom- mend that so much of the complaint as alleges this to be a violation of Sec- tion 8(a)(3) of the Act be dismissed. RECOMMENDATION It is recommended that the complaint in this proceeding be dismissed in its entirety. n Aerodex, Inc, 149 NLRB 192 Farmers Co-Operative Gin Association and Dallas General Drivers, Warehousemen and Helpers , Local Union 745, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America . Cases 16-CA-2487 and 2553. November 10, 1966 DECISION AND ORDER On June 17, 1966, Trial Examiner Ramey Donovan issued his Deci- sion in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. Thereafter, exceptions to the Trial Examiner's Decision and supporting briefs were filed by the Respondent and the Charging Party. 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 of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The 161 NLRB No. 86. 888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, except as noted below." [The Board adopted the Trial Examiner's Recommended Order with the following modifications : [1. Add the following as paragraph 2(h), the present paragraph 2(h) and those subsequent thereto being consecutively relettered : [" (h) Notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment 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. The telephone number for Region 16, appearing at the bottom of the notice attached to the Trial Examiner's Decision, is amended to read: Telephone 335-4211, Extension 2145.] 1 We do not find the Trial Examiner's references to hypothetical situations relevant to our determination of the instant case. We therefore disavow his projection of an imaginary workday experienced by Ellis, found to be a supervisor, as well as the observations in footnote 35 of the Decision. In connection with the July 29-August 30 wage increases, the Trial Examiner inadvertently attributed one of the increases to a newly hired em- ployee named Hooten, whereas the raise was actually given another employee by that name. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Charging Party, the Union described above, and herein called the Union, filed a charge against Farmers Co-operative Gin Association, herein called the Respond- ent or the Employer, on October 21, 1965, Case 16-CA-2487; a second amended charge was filed on December 6, 1965, Case 16-CA-2487; a charge was filed on December 23, 1965, Case 16-CA-2553. The General Counsel issued a complaint, dated November 30, 1965, in Case 16-CA-2487. The allegations were: that, by certain specified acts and conduct and by statements of supervisors, Respondent had violated Section 8(a)(1) of the Act; that Respondent had refused to bargain with the Union, the collective-bargaining representative, in that Respondent unilat- erally transferred employees from one type of job to another; unilaterally granted wage increases; and by other specified conduct refused to bargain; it was also alleged that a strike of employees was caused by Respondent's unfair labor practices. Among other pleadings, Respondent, on December 10, 1965, filed an answer to the com- plaint denying the commission of the alleged unfair labor practices. The General Counsel, on January 25, 1966, issued an "Order Consolidating Cases, Complaint and Notice of Hearing" in "Cases 16-CA-2487 and 16-CA-2553." This complaint, dated January 25, 1966, alleged that a specified strike was caused by Respondent's unfair labor practices as alleged in the complaint in Case 16-CA-2487, dated Novem- ber 30, 1965, and that the strike was prolonged by other unfair labor practices described in the January 25, 1966, complaint. It was further alleged that Respondent had refused to reinstate the strikers to their former jobs and refused to reinstate cer- tain named strikers; 1 refused to reinstate strikers, Hedrick, Hankins, and Person; all said conduct alleged to be in violation of Section 8(a)(1) and (3) of the Act. Respondent, on February 5, 1966, filed an answer to the last mentioned complaint denying the commission of the alleged unfair labor practices. 1 Loss, Camper, and Tennison. FARMERS CO-OPERATIVE GIN ASSN. 889 In his opening statement, counsel for the General Counsel made it clear that he was proceeding on the two complaints, aforedescribed, and that the second complaint did not purport to supplant or to constitute a merger of the first and second com- plaint and that the second complaint did not constitute an abandonment of the alle- gations set forth in the first complaint. At the hearing and in its brief, Respondent has asserted that the only issues in the case are those alleged in the complaint desig- nated as "Case 16-CA-2487 and 16-CA-2553." "That pleading . . . . does not pur- port to incorporate the pleadings in Case 16-CA-2487 but is a new pleading in its entirety and replaces pleading filed in Case 16-CA-2487." The Trial Examiner does not agree and did not agree at the hearing with the aforementioned contention of Respondent. The record discloses that the General Counsel first issued a complaint in Case 16-CA-2487. Later, the General Counsel decided to issue a complaint in Case 16-CA-2553. He also decided to consolidate the two cases for the purpose of hearing and issued an "Order Consolidating Cases, Complaint and Notice of Hearing," "Cases 16-CA-2487; 16-CA-2553," stating therein that he "hereby issues this order consolidating cases [16-CA-2487; 16-CA- 2553], and complaint and notice of hearing Case 16-CA-2553 and alleges .. " [Emphasis supplied.] We are satisfied that there were two complaints extant, the first complaint in Case 16-CA-2487 and the second complaint in Case 16-CA-2553, with both cases and both complaints consolidated for the purpose of hearing? We rejected Respondent's aforedescribed procedural contention at the hearing and the hearing proceeded on both complaints, with the allegations of both complaints being litigated by the parties. Respondent, at the hearing, did not waive its position aforementioned and we have again considered this procedural matter and have affirmed our prior ruling. It is our opinion, however, that the General Counsel used a needlessly cumbersome method of pleading and a method that, again needlessly gave rise to a procedural point by opposing counsel. Instead of two complaints, sta- tistically or otherwise, we believe that after the first complaint was issued and after new charges gave rise to new allegations , the new or additional allegations, plus some or all of the original complaint allegations depending on the General Counsel's judgment, could (and preferably so) have been consolidated in one complete instru- ment designated as the consolidated complaint. A hearing was held before Trial Examiner Ramey Donovan in Sulphur Springs, Texas, on February 14-18, 1966, inclusive with all parties represented by counsel. The issues, in substance were alleged statements and conduct asserted to be in vio- lation of Section 8(a)(1) of the Act; alleged refusal to bargain in good faith in violation of Section 8(a)(5) of he Act; alleged discrimination as to hire of strikers in violation of Section 8(a)(3) of the Act. Upon the entire record, including our observation of the witnesses, we make the following: FINDINGS AND CONCLUSIONS I. JURISDICTIONAL FACTS Respondent, at all times material herein, is a corporation, organized and existing under the laws of Texas. It maintains its principal office and place of business in Sulphur Springs, Texas, where it is, and has been, engaged in the custom. mixing, grinding, and blending of feeds, and the sale of fertilizer supplies. During a representative 12-month period, Respondent, in the course of its busi- ness operations, received at its Sulphur Springs plant, supplies, goods, and materials valued in excess of $50,000 which were shipped to it directly from points located outside Texas. During the same period, Respondent sold and distributed products of a gross value in excess of $50,000. While Respondent admits the foregoing facts, it denies that it is engaged in inter- state commerce within the meaning of the Act. This position is based principally on the contention that the operation is essentially local, selling and moving no products outside the State of Texas. We find that Respondent is an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2 Further evidence of the continued existence of two complaints is to be found In para- graph 8 of the second complaint wherein it is stated that the strike described in paragraph 7 of the second complaint "was caused by the unfair labor practices of Respondent set forth and alleged in the Complaint in Case No. 16-CA-2487, issued on November 30, 1965 . . . [the first complaint]." 890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that at all times the Union is a labor organization within the meaning of Section 2(5) of the Act. H. THE ALLEGED UNFAIR LABOR PRACTICES The Union filed a petition with the Board on February 16, 1965, for certification as collective-bargaining representative of a unit of Respondent's employees. The Board conducted an election on April 30, 1965. Prior to the April 30 election there were a number of incidents involving Higgins, foreman of the feedroom, and Ellis, employed in the repair shop or maintenance department. Respondent concedes that Higgins is a supervisor but denies that Ellis is a supervisor.3 The General Counsel contends that Ellis is in fact the maintenance foreman and that he is a supervisor. In resolving the question of Ellis' status, one element to be considered is a comparison between Ellis and Higgins as revealed by the record. On a representative payroll, the one for the week ending May 13, 1965, Higgins, on hourly paid supervisor, is revealed to have a rate of $1.40 per hour.4 The next highest rate to that of Higgins is $1.35, which was received by Renshaw, another acknowledged foreman. Below this rate, some employees received $1.32 and $1.30, with the majority receiving $1.25. Other sections of the payroll list office employees; repair or maintenance employees; and the higher supervisors. In the latter category are listed Plant Manager Williamson, salaried; Assistant Manager Campbell, sal- aried; and Foreman McKenzie, salaried. Ellis' rate in the repair department is $1.40, the same as that of Higgins. Sanders, the other man in the maintenance or repair department at that time, received $1.30.5 A separate payroll sheet, captioned "1964-65 Bonus" lists 11 names, consisting of Williamson, Campbell, McKenzie, Higgins, Ellis, and 6 office personnel. In amount of bonus, Ellis is 7th on the list. Without deciding, at this point, the significance of the foregoing, it appears that Ellis appears on a management-office bonus list. While not shown on the payrolls in the record, it is apparently a fact that other employees have received a bonus of $5 a year but they are not listed on the particular list as described above. On later payrolls in 1965, Higgins is listed at $1.40, and Ellis at $1.40, the highest rates in their respective departments. This is also true on the January 7, 1966, payroll when the respective rates of the two men were $1.42. Ellis, Sanders, and Threatt work in a separate building on Respondent's premises. This building is the repair or maintenance shop. The three mechanics, aforemen- tioned, perform maintenance and repair work on Respondent's trucks; they repair and maintain machinery of Respondent, such as grinding and mixing machines; they can perform welding work; and evidently are all-around mechanics who repair and maintain all equipment in the plant. In Ellis' words, the maintenance depart- ment kept the equipment and the plant "running." In view of the wide variety of different mechanical skills and repair tools and parts that are involved in such an operation, there are, of course, certain types of work that the plant repair shop does not undertake. Certain aspects of truck repair, for instance, are sent to an automobile agency in town. Ellis testified that it was part of his job to check "all the repair bills." ". .. on the trucks and things like that" and that he had instructed employees to inform him before they took a truck to an outside repair company because, otherwise, "I don't know about it," until the bill was received. There is no evidence that Sanders and Threatt, the other two mechanics, performed any of the above type of paper work or that any employee had been instructed to notify them before taking a truck to an outside repair place. Ellis testified that he was not a foreman and had no authority with respect to Sanders, Threatt, or any other employee. He testified that his boss was Plant Man- ager Williamson and that he took his orders from Williamson. Although earlier in his direct examination, Ellis stated that Sanders and Threatt issued directions to him and that he issued directions to them, he admitted on cross-examination, that he took orders only from Williamson and not from Sanders and Threatt. There is no question that Williamson was Ellis' superior and immediate super- visor. But Williamson had his office in a separate building from the repair shop 3 Higgins has been a foreman at Respondent's plant for 10 or 11 years A Respondent's payrolls list its personnel by departments and job. Thus, Higgins is listed as department 2, job, "Feed." No titles appear on the payrolls. 5 On later payrolls, employee Threatt at $1.30 is listed on this department in addition to Ellis and Sanders FARMERS CO-OPERATIVE GIN ASSN. 891 and he was responsible for running a plant consisting of three or four buildings, a retail store that sold guns, paint , tires, etc., feed production operations , sales and truck delivery operations, and a plant office that handled payroll, accounts, and related matters, as well as more than 60 employees . There is no evidence that Williamson had a mechanical engineering or even a mechanical background. In such circumstances , it would appear unlikely that the hour-by-hour , day-to-day, wide variety of mechanical maintenance that the plant shop handled , was conducted without someone in the shop, possessing mechanical background , exercising respon- sibility to direct the operation and the employees therein, and engaged in and exercising a degree of independent judgment in the course of such direction. Equally unlikely is it that the three mechanics each issued orders and directions to each other, albeit under the broad and general overall authority of the plant manager. It requires little imagination to evisage a particular workday when , for instance, Ellis has removed a defective fuel pump from a truck and is either about to repair it or to obtain a new or rebuilt fuel pump to be installed ; Threatt has partially dismantled an electric motor that runs a mixing machine and is about to install new brushes or remove the glaze from the armature ; Sanders is under another truck and has partially removed the drive shaft . Employee A comes in with a truck that is loaded with fertilizer scheduled for delivery within 21/2 hours to a customer 45 miles away. A complains that he cannot get the truck out of first gear. It seems apparent that someone in the shop has to make a judgment as to priority of work and assignment of someone to do the work . The evidence in this case indicates that Ellis would be the man to exercise the judgment as to priority and to assign or not to assign either himself or Sanders or Threatt to the job or to send the truck to a repair shop in town . If Ellis believed the priorities were not clear, he would be the one, and not Sanders or Threatt , who would consult Wil- liamson. Unless Williamson knew the exact situation of all four jobs , afore- described, he would rely on Ellis' description of the situation and Ellis' estimate of the time entailed and the relative complexity of the various jobs on hand. If Williamson decided that repair of the mixing machine motor was urgent but less urgent than the repair of A's truck , Ellis would be the man to implement the decision . Although Threatt, in our description , is the man working on the mixing machine motor , Ellis, because of his own knowledge of the details and the people involved, might assign Sanders to A's truck because of Sanders' superior skill and experience on such a problem as the particular truck presented . Threatt might be assigned by Ellis to the fuel pump job that Ellis had been working on. Ellis him- self might shift to the drive shaft job on which Sanders had been working or he might assign himself or Threatt to work on A 's truck together with Sanders. While the whole foregoing incident is admittedly a projection , it is a projection based upon and developed from various aspects of the evidence in the record, infra, and is in harmony with a reasonable appraisal and the exercise of reasonable intelligence based on the general factual situation . Specific evidence will now be described. Employee Williams testified that one day Higgins told him that he should take his truck to the shop and have the lights put in working order. Williams did so, and, at the shop , Ellis told Sanders to repair the truck lights. Sanders then did the repair work. Employee Ivery testified that over a period of years he had heard Ellis issue instructions to Sanders and Threatt to repair certain trucks, to install bearings in a certain truck, to do certain welding , to repair a lawn mower, and so forth. On another occasion, Williamson told Ivery to take his truck to the Ford garage in town for repair. Before leaving , Ivery told Ellis of Williamson's instruction. Ellis told Ivery that the trouble was the driver and not the truck and he told Ivery to get out of the truck. Ivery did not take the truck to the Ford shop and Ellis handled the particular situation from that point on. Employee Attlesey testified that he had heard Ellis refer to himself as a fore- man,6 and that he had heard Ellis issuing various instructions . Attlesey, at one period, had been taking his truck to a service station for lubrication . At some point, Ellis told him that he should lubricate the truck himself and that William- son told Ellis to so direct Attlesey. Employee Morris testified that Ellis had told him he was a foreman . Morris stated that Ellis had selected him to work on Sundays and that for the past year Ellis had 6 Ellis denies ever having made such a reference to anyone. 892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given him a standing instruction or invitation to work on Sundays? Morris testified that Ellis selected the men for Sunday work , the number varying from 3 to 12 men. On Sunday, Ellis has the key to the building or buildings and opens them for the Sunday workers . The men are assigned such tasks as cleaning out debris from ele- vator shafts or material that has piled up under various machines. When the men finish a task, they leave, unless Ellis assigns them to another task. They work about 3 or 31/2 hours on Sunday. Ellis keeps track of the time worked by the men on Sundays. Employee Person testified that he asked Williamson about getting some Sunday work. Williamson told him to speak to Ellis. Person did so. On one occasion; there- after, Ellis told Person to report that Sunday; on another occasion, Ellis said to Person that he had no work for him on that particular Sunday.8 Sanders, who is Ellis' uncle, is, as we have noted , one of the mechanics in the repair shop. He was a witness for Respondent and testified that two employees had come to his home to ask him to join the Union. According to Sanders the two men proposed that if Sanders joined the Union they could get rid of Ellis and Sanders could be foreman in Ellis' place. Sanders did not reply that the proposition was ridiculous because Ellis was not a foreman, nor did he say that there was no fore- man job in the repair shop. His reply was, "I asked them why did they think I wanted to be foreman at the co -op shop." By implication, at least, the witness, .a mechanic in the shop seems to admit that there was such a position as foreman in the shop and that Ellis occupied that position. Sanders simply did not wish to be a party to ousting his nephew from that position. Later still in direct examination, Respondent's counsel asked Sanders , "Q. Is George [Ellis] foreman in the shop." The witness said, "No, sir . . ." and then stated again "I asked them why they think I want to be foreman in the shop." On cross-examination, Sanders testified that the two employees told him that, when they got rid of Ellis, Sanders "could get the foreman's job"; i.e., Ellis' job. Sanders' reply once again appears to affirm the exist- ence of the foreman job and Ellis ' occupancy thereof. Thus, "I [Sanders ] asked him why he thinks I want to be a foreman, why I want to be a foreman, I am George's uncle." Considering all the evidence regarding Ellis, including the identity of his wage rate with that of an admitted foreman, Higgins; his higher wage rate than another admitted foreman, Renshaw; 9 his bonus listing with management and office person- nel; the nature of the repair shop operation and the evidence of Ellis' exercise of authority in the shop and on Sundays at the plant , we conclude that Ellis was a supervisor within the meaning of the Act and that he was identified with manage- ment. We are satisfied that, in the course of his work , Ellis responsibly directed other employees in the course of their employment and that in the course of such activity he exercised independent judgment. A. Section 8(a) (1) statements Since we find that both Higgins and Ellis are supervisors within the meaning of the Act, certain statements made by them are relevant. Employee Williams , whose testimony was cited above , is a part-time minister of two churches. He testified credibly that about 3 days before the April 30, 1965, election, his foreman, Higgins, told him that Williams enjoyed considerable respect or influence in the employer's office but that if he voted for the Union, he might as well give up his churches , at least if he expected to continue to work at the plant.1° 7 The Sunday work enabled the men to earn extra pay and apparently it was a welcome situation. 8 Ellis, as we have seen, denied that he was a foreman. Williamson also denies that Ellis is a foreman. Although it is denied that Ellis could or did give orders, most of the specific incidents described above are not controverted. Williamson stated that if he is in town he tries to go to the plant on Sundays or that Campbell did so in Williamson's absence. There is also evidence that Foreman Renshaw occasionally was at the plant on Sundays. We credit the testimony of the employees, above, regarding Ellis, and with respect to Sunday assignments and direction of work. If Williamson, Campbell, or Renshaw were present, Ellis was still performing, as described, as the immediate and most consistent director of the cleanup work. 9 Crabb, who became foreman in Renshaw's place, was paid $1.35 as foreman in Janu- ary 1966. At that time Higgins and Ellis were receiving $1.42 having received $1.40 in 1965. 10 Apparently, in the past, Williams had solicited support for his churches from some of Respondent's representatives. Higgins testified that he had been so approached in the past. FARMERS CO-OPERATIVE GIN ASSN . 893 A few days before the election, Higgins spoke to employee Attlesey. He asked the latter what he thought about the Union, and how it would go, and how he was going to vote. Attlesey said that he would vote for the Union. Employee Robinson testified that a day or so before the election, Higgins asked him how he was going to vote. Robinson replied that he would vote the way he thought he should. Higgins said that if Robinson wanted his job he would vote, no. On about three occasions prior to the election Higgins asked employee Hedrick how he was going to vote. The first two times, Hedrick said'he did not know. On the third occasion, 2 or 3 days before the election, when Higgins put the same ques- tion to Hedrick, the latter said that he would probably vote against the Union but did not know for sure. Higgins said, in substance, do not vote for the Union. According to the testimony of employee Moss, a few days before the election, his foreman, Higgins, spoke to him in the plant and asked him how he was going to vote. Moss replied that he had not really thought about it but that it might be that if he did not vote for the Union he could not get along with those who did, but, on the other hand, he "might have trouble if I [he] did ..." he did not know what he would do. Higgins said "don't vote." Melvin Childs, an employee, testified that a few weeks before the election, his foreman, Higgins, asked him if he was going to vote for the Union. Childs said that he did not know which way he would vote. Higgins commented that Childs would probably lose his job if he voted, yes, for the Union. A day or so before the election, Foreman Higgins asked employee Arthur Childs how he was going to vote. Childs said that he would vote the way he thought was right. On the morning of the election, Higgins told Childs to vote, no. The day after the election, Higgins asked Childs how he had voted. Childs replied that he had voted the way he thought was right. Higgins denies having interrogated or threatened the employees as testified to by the latter, above. We credit the testimony of the employees as described. Higgins' conduct was basically interrogation of employees as to how they would vote, as described by the witnesses. This interrogation, almost on the eve of a Board-ordered secret-ballot election, did not, in our view, constitute the expression of views, argu- ments, or opinion under Section 8(c) of the Act. It was unwarranted and unjustified intrusion into, and interference with, the rights of the employees under Section 7 of the Act. This is also true of the foreman's instruction to some of the employees to vote, no, or, not to vote. The conversation with Williams carried an express or implied threat of detriment in the loss of his churches if Williams voted for the Union and expected to continue to be an employee of Respondent. We credit employee Attlesey's testimony that on several occasions before the election, one about a week before, he heard Ellis tell employees that if they voted for the Union the boss would starve them out. We find the foregoing described conduct to be in violation of Section 8(a)(1) of the Act. B. Postelection events Following the preelection incidents aforedescribed, the election was held as scheduled on April 30, 1965. The Union received a majority of the votes. It is undisputed that sometime on the day of the election, after the votes had been counted and the result had been announced, Plant Manager Williamson went to the particular section of the plant where there was a telephone that Respondent, in the past, had provided for the use of the employees. This telephone was not in the plant office area and was used by employees to receive personal calls from their families in the event of an emergency and for similar personal purposes. Williamson was observed, on the aforementioned occasion, to pick up the telephone from its stand or table and then yank the telephone wire from the wall.ll He then carried the telephone with him to the office. Thereafter, employees' personal calls were received on a telephone in Foreman McKenzie's office. Williamson testified that he had been thinking about removing the telephone for some time because dust or feed got into the instrument and it required repair by the telephone company from time to time and the location of the telephone in the middle of the building might interfere with the installation of some newly planned machinery. This is hardly an explanation for the abrupt timing of the removal, on the very day of the union election victory. Nor does the explanation go to the admitted and unusual method 11 The telephone was not connected to a telephone jack but was wired to customary fashion for such instruments. At a later date, the telephone company removed the torn wiring in more orthodox fashion. 894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of removal by yanking the telephone from its wiring in the wall. The incident was 'quite clearly an act of pique and anger at-the action of the employees in voting for the Union and, in a small way, it was an act of reprisal. The Union was formally certified on May 10. In the latter part of -May, about May 28, six of Respondent's truckdrivers were summoned to Williamson's office.12 The drivers were: Orr, Underwood, Morris, 'Tennison, Williams, and Rhodes.13 Another driver, Smith, was apparently not at work that day but he was part of the group. In substance, Williamson told the group of drivers that Respondent was in difficulty with its insurance carriers because it had drivers with poor driving records and that in order to secure insurance Respondent was obliged to remove drivers with two or more driving infractions within -the past 3 years . Consideration was to be given to seniority. Williamson showed reports that Respondent had requested and had received from the Texas Department of Public Safety regarding the indi- vidual records of the drivers. He thereupon terminated Rhodes, Tennison, and Morris, who had four, three, and two infractions on their records , respectively. Orr, Underwood, and Williams, with three, two, and four infractions respectively, but with_ higher seniority, were offered and accepted other jobs in the plant. 14 Later, on the -same day, Rhodes encountered Williamson who said he had made a mistake and should have terminated two drivers, not three. Williamson offered Rhodes another job in the plant and Rhodes accepted. At the foregoing session, at which Williamson made the described terminations and transfers of six drivers, Tennison told Williamson that he had not had three infractions within the last 3 years and, in fact, had had no infractions in that period. Williamson told Tennison that if Tennison produced such proof, Williamson would restore him to his job. Tennison produced such proof thereafter in the form of a letter from the Texas Department of Public Safety and he was put back to work, Respondent paying him for the 4 days that he had lost. When the aforementioned drivers were removed from driving. and given other jobs in the plant, it generally entailed decreased earnings for the individual. This was due to the fact that, commonly, drivers worked more hours than did plant employees and therefore earned more money. The aforedescribed May 28 incident, involving terminations and transfers of drivers is alleged- in the complaint (Case 16-CA-2487), paragraph 13, as refusal-to- bargain conduct in violation of Section 8(a)(1) and (5) of the Act.15 During the hearing, when the General Counsel asked one of the drivers involved in the May 28 incident whether his hours decreased as a result, Respondent objected on the ground that the inquiry was immaterial -and not supported by the pleadings. The General Counsel then stated that the evidence was part of the allegation that Respondent had failed and refused to bargain with the Union concerning the terminations and transfers. We are satisfied that the May 28 incident was alleged and litigated as a refusal to bargain in violation of Section 8(a)(1) and (5) and not as a discriminatory termi- nation or transfer in violation of Section 8(a)(l) and (3) of the Act. However, the General Counsel in his brief, although stating that Respondent had failed to con- tact the certified union regarding the changes it was making regarding the working conditions of the drivers, devotes most of his analysis of, and argument about, the May 28 incident, to what appears to be an assertion that the entire matter was con- ceived and implemented in a discriminatory manner. He states, inter alia, that Respondent "purposefully . . . misinterpreted" the reports that it had secured from the Texas Department of Public Safety regarding the records of the drivers and contends that "the record demonstrates that their removal was purely pretextuous." 12 There were approximately 52 employees in the unit for which the Union had been certified Of this number, approximately, 14 or 15 were truckdrivers The Union, in its petition for an election and certification had sought a unit limited to truckdrivers but the Board had found that the appropriate unit consisted of all production and maintenance employees, including truckdrivers. These known factors would reasonably indicate to all concerned that the Union's original and probably strongest support came from the truckdrivers. is Rhodes had been the union observer at the election. 14 Apparently Lonnie Smith, who had 13 infractions, was removed on the following day. Another Smith was not removed. 1S" . Respondent did refuse . . . to bargain collectively with the Union in that: (a) On or about May 28, 1965 Respondent unilaterally transferred certain of its truckdrivers to jobs within the plant .. . . " The incident is not otherwise alleged or adverted to in either complaint. FARMERS CO-OPERATIVE GIN ASSN. 895 In the light of what we have stated, above, regarding the pleadings and state- ments of counsel at the hearing, we regard ' the May 28 incident in the context of an alleged refusal to bargain under Section 8(a)(5) of the Act and not as an alleged discriminatory transfer or removal under Section 8(a)(3). With respect to the 8 (a)(5) aspect of the May 28 incident, it is clear that Respondent's action dealt with conditions of employment embraced by Section 8(a)(5) and (d) of the Act. After the election and the Union's certification, Respondent secured data from the State Department of Public Safety regarding the driving records of Respondent's truckdrivers. Respondent established and applied a criterion that any driver with two or more State recorded infractions within the past 3 'years would be removed as a driver. Presumably, the entire force of truckdrivers could have been subject to removal if their records did not meet Respondent's newly established standard. Seven drivers were, in fact, removed as drivers and, with one possible exception,16 were assigned to nondriving jobs which customarily offered less hours of work and consequently less income. Also, in many, if not all, instances, the plant jobs were less desirable because of dust and other conditions. Aside from such comparative factors, the fact is that the seven employees, aforementioned, were employed as drivers, apparently preferred to be drivers, and did not volunteer to relinquish their jobs as drivers. Respondent ignored the existence of the Union as the certified bargaining repre- sentative and unilaterally, on or about May 28, 1965, changed the working condi- tions of an important segment of its employees. The entire matter was announced and finalized by Respondent on May 28, in a relatively brief session. The Union had no foreknowledge of Respondent's impending action and it was an accom- plished fact on May 28. These facts are not altered simply by reason of the fortuitous circumstances that Rhodes was one of the drivers called to Respondent's office and removed as a driver on May 28. Rhodes at that time was not an officer or official of the Union. He had been the employee who had been the union observer at the April 30 elec- tion. There is no evidence that he had any prior union experience or was informed or knowledgeable concerning the rights and obligations embraced by Section 8(d) and (a)(5) of the Act.17 Rhodes was not summoned to the May 28 session in any union capacity. He was called in and removed as an employee driver because of his driving record and was accorded no recognition as a union representative, which, in fact, he was not, at the time. We find that the unilateral action of Respondent on May 28, aforedescribed, was in derogation of the rights of the Union as the certified bargaining agent and that it was contrary to Respondent's obligations under Section 8(d) and (a)(5) of the Act and that it was a violation of Section 8(a)(5) and (1) of the Act.18 We deem it appropriate to observe in considering Respondent's alleged lack of good faith in fulfilling its obligation to inform and negotiate with the Union regarding the transfers, that there is another aspect involved. The reports that Respondent received from the Texas Department of Public Safety stated that each report listed the numerical total of accidents and violations appearing on the driver's record. But only accidents or violations occurring within the past 3 years were itemized. Some of the reports that Respondent received from the State, gave both a total number of infractions and an itemization of those occurring within the past 3 years; other reports contained simply the total accidents and no itemization, thus indicating no infractions within the past 3 years. Respondent interpreted all the State reports on May 28 that showed any total numerical figure of accidents or violations as reports of accidents or violations occurring within the past 3 years. 18L. Smith appears to have been terminated, although this is not clear 11 Later, in bargaining sessions with Respondent concerning a contract, Rhodes was present at two of the sessions with the union officials, Jennings and Roseborough, but the negotiations were conducted by the two last mentioned representatives. Still later, in Octo- ber, during a strike, Rhodes was the picket line captain, except for a brief period when he was out of the State. 18 Fibreboard Paper Products Corp v. N L.R B., 379 U.S. 203 The instant case incident of May 28 involves a much simpler factual and legal situation than that in the Fibreboard case and the legal principle regarding unilateral action concerning terms and conditions of employment was well established prior to Fibreboard The latter case adds emphasis and scope to the legal principle and necessarily embraces a more modest situation such as involved hereinabove. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This was an admittedly incorrect interpretation. Employee Tennison told Williamson that he had had no accidents or violations within the past 3 years but, because the Department of Public Safety report showed two violations and one accident for Tennison (albeit unitemized and therefore not within the past 3 years), Tennison was removed. Within 4 days Tennison secured a letter from the Department of Public Safety which clearly stated that, unless infractions had occurred within the past 3 years, they were not itemized on the reports. Tennison admittedly showed this letter to Respondent and Respondent reinstated Tennison and paid him for the 4 days that he had lost. Williamson admitted at the hearing that the letter demonstrated, at the time Tennison produced it, that Respondent had. been wrong in its interpretation of the Department of Public Safety Reports. But Respondent, while correcting its erroneous action of removing Tennison as a driver, did nothing to correct its equally erroneous removal as drivers of Williams, Underwood, Morris, and L. Smith. By Respondent's own standards, the latter four should not have been removed as drivers. The State reports showed that William's record was two violations and two accidents, with none itemized and therefore none within the past 3 years; Underwood's report showed one violation and one accident, with one itemized (Respondent's standard was two or more infractions within the past 3 years); Morris' report showed two violations and no accidents, with one itemization; L. Smith's report showed 12 violations and one accident, with none itemized. We regard the foregoing as pertinent to our consideration of this entire unilateral removal of drivers by Respondent in May 1965 in derogation of Respond- ent's obligation to act in good faith. C. The negotiations The Union and the Respondent met with each other on June 8 and 28, July 20, and August 5, 1965, in Sulphur Springs, Texas. Jennings and Roseborough, union officials, were the union representatives on these occasions although employee Rhodes sat in with them at most of the sessions. Repondent's spokesman at all the meetings was its counsel, McLaughlin. Manager Williamson was present with McLaughlin at all meetings except that of July 20. Assistant Manager Campbell was present at all meetings. The purpose of the meetings was the negotiation of a contract between the parties and the meetings were devoted to this purpose. The single departure from discussion of contract subject matter occurred at one meeting and the departure was relatively brief. Jennings asked McLaughlin why certain drivers had been removed from driving on May 28. McLaughlin said that he understood that the Company had received a letter from its insurance company to the effect that the insurance was going to be canceled because of the drivers. Jennings asked for more information on the subject and about the possibility of restoring the removed men to their former jobs. McLaughlin said that he would check into it. Thereafter, neither party brought up the topic again and the Company did not furnish the Union with any further information or detail regarding this matter. In its brief, Respondent states, that "Transfer of the drivers was explained to the union at the first bargaining session and it did not become an issue between the parties." The record is clear that the Union initiated the topic and we credit Jennings' aforementioned description of the discussion. We are satisfied that the Union did not take the position that the matter of the drivers must be disposed of before any further contract discussions continued and in that sense it did not become an issue. The Union had undoubtedly given priority to the negotiation of a contract and, if a contract was negotiated, and the Union secured from Respond- ent the details of the driver-insurance matter, the latter could have been handled as a grievance under the contract. The record is not clear as to exactly at what session the Union brought up the subject of the drivers. Jennings thinks that it was on July 20. Williamson, who was at all sessions except that of July 20, testified that he did not recall the matter of the drivers having been mentioned at any session that he attended. Campbell states that on June 8 or 28, the Union brought up the topic of the drivers and that there was some brief discussion of the matter. We do not regard the exact date of the session at which the driver topic was raised as determinative but we believe that Jennings' testimony is the more reliable and Williamson's testimony is not inconsistent with'that of Jennings.19 39 Jennings, as we have seen, gives the date as July 20. Williamson, who thereafter testified, missed one session, that of July 20, and he states that the drivers were not discussed at any session at which he was present. ' FARMERS CO-OPERATIVE GIN ASSN. 897 As we have indicated, the June 8 and 28, July 20, and August 5, 1965, sessions were devoted to efforts to agree on the terms of a contract. The first meeting on June 8 was brief, no more than an hour. The Union presented a written contract proposal and Respondent agreed to study it and come back with its own ideas and proposals. Among other subjects, the proposed union contract contained a checkoff clause, whereby, upon written authorization of an individual employee, the employer would deduct from the employee's pay the amount of his monthly union dues and remit the dues to the Union. The proposed wage rate for 1965 was $1.90; and $2.10 and $2.20 for 1966 and 1967, respectively. There was also an article pro- viding for a grievance procedure, culminating in third party arbitration. The second meeting on June 28 lasted about 2 hours. Respondent did not have a written counterproposal but the parties went over the union proposal, article by article. They discussed and stated their views and positions regarding one article and agreed in whole or in part or disagreed in whole or in part and then went on to the next article and so on in similar fashion. Respondent said that it would not agree to a checkoff because the collection of dues was the Union's business and not Respondent's. The Union said that it had to have some kind of security such as the checkoff.2° The parties agreed to hold the matter of checkoff for later discus- sion. Respondent objected to third party arbitration and proposed that the last step in the grievance process would be the Respondent's president. The Union did not agree. Respondent said that it thought that it could thereafter draft some language on arbitration that the Union could live with. The parties discussed 20 or 21 articles of the union proposed contract that contained 40 articles. Article 29 covered wages. The meeting was adjourned by mutual consent. The next meeting was on July 20 and lasted about 21/2 hours. Respondent pre- sented its own written contract proposal and the parties went over it, article by article. On grievances, the company proposal was that the final step in the grievance procedure would be the Respondent's president. The Union said that a third party, and not management, should be the ultimate recourse on grievances. Respondent said that it believed that it could come up with something acceptable to the Union. The company proposal on wages was the continuation of existing rates, with the Respondent having the right to raise or lower wages of an employee because of efficiency or inefficiency but the increase or decrease not to exceed 10 cents per hour. The Union did not agree to this proposal and the parties went on to consider other articles. Among other items, the parties were in disagreement on the scope of a management rights clause proposed by Respondent. After going over the Respondent's proposed contract, the Union at this same July 20 session, said that it would recommend to the membership the following proposal and said that, if the proposal was agreed to by the Respondent, the Union felt that agreement on a contract could be reached. The Union thereupon proposed a wage increase of 121/2 cents at the time of signing the contract and a further increase of 121/2 cents 6 months late; 21 the Union also proposed that the contract contain a checkoff provision of some type; finally, the Union said that if the Respondent drafted an arbitration provision along the lines discussed by the parties, above, the Union felt that, with the three aforementioned features, a contract could be agreed upon. The meeting then recessed and Respondent's representatives went across the street to have some coffee and to consider the Union's proposition aforedescribed. When Respondent's representatives returned to the meeting, they said that they would not agree to any wage increase and would not agree to a checkoff. Respond- ent said it was possible that it would agree to draft a proposal on the grievance procedure embracing arbitration by a third party.22 Regarding checkoff, the Respondent said that it felt that collection of dues was the Union's business and the Respondent did not want to take care of the Union's business by deducting 20 Texas law, as the parties were aware, forbids a union-shop clause but not a checkoff provision. a The Union's original wage proposal on June 8 was $1.90 which involved an increase of 65 cents an hour, since most of the production and maintenance employees on the May 1965 payroll were receiving $1.25. Further increases for 1966 and 1967 were en- visaged in the June 8 proposal to bring the rates to $2.10 and $2.20, respectively. 71 Campbell testified that after Respondent considered the union proposal during the recess and returned, the Union asked what Respondent had to offer or what was its decision . Respondent told the Union it thought that something could be worked out on arbitration "but as far as a raise right now and checkoff-that we couldn't agree to that." 264-188-67-vol. 161-58 898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dues from the wages of employees. Upon being asked, regarding its above- mentioned position on wages, whether the Respondent was asserting its inability to grant a wage increase or whether it was claiming that an increase would make Respondent noncompetitive, the Respondent said, no, and that the Respondent was simply not going to grant a wage increase 23 The Union then made its position clear that if Respondent would agree on some kind of a checkoff; wage increase, and arbitration clause in the grievance procedure, there was no obstacle to the consummation of a contract. By the same token, the Union said that if Respondent would not agree on the three items above there was no purpose in further discussing other contract provisions. The Union said that it would call a meeting of the employees and acquaint them with the Respondent's proposed contract and that a strike vote would be taken. The Union indicated that Respondent's position left the Union with no alternative but to strike. The Union asked Respondent to let it know if Respondent changed its position. Respondent wrote to the Union on July 21, summarizing the Union's July 20 proposal regarding the three items of checkoff, arbitration, and the wage increase as essential to consummation of a contract. Respondent reiterated that it would not agree to any type of checkoff clause that would require Respondent to deduct union dues for the Union from employee wages and that it was not agreeable to granting the wage increase. Respondent said that if the Union changed its position it should let Respondent know. The Union held a meeting on July 28 and brought the employees up to date on the bargaining. It was voted not to accept Respondent's proposal and position and a strike was voted. No date was set for the strike but steps were taken to secure sanction of a strike and strike benefits from the International or parent union. On August 5, the parties met at a meeting called by a Federal mediator. The mediator asked on what the parties were apart. The Union said that the Respondent would not grant a wage increase and would not agree to any checkoff provision; that Respondent had said that it could probably draft an acceptable grievance and arbitration clause; that the above items were what the parties were apart on. The Union said that, if it could get some kind of a commitment on a wage increase and on a checkoff provision, it could probably go along with Respondent on other contract items. The mediator then met separately with the Respondent. He returned and said that the Respondent's position was still the same. The Union asked if the mediator would get any kind of an offer on a wage increase from Respondent that the Union could submit to the employees. The mediator said that the Respondent would make no offer of a wage increase proposal. When the parties were together again, the mediator informed the Union that the Company's position was the same on the checkoff and wage increase. The meeting adjourned. As a general proposition an employer has no obligation in collective bargaining to offer a wage increase, a checkoff provision, an arbitration provision, or any other particular benefit. However, in the instant case the evidence regarding Respondent's position on a wage increase and a checkoff requires further con- sideration.24 The Union, as described previously, had submitted a written contract proposal on June 8. On wages, the proposal was substantial . Having considered the union con- tract proposal, Respondent submitted its own proposal on June 28. With respect to wages Respondent proposed the continuation of existing wage rates, with no 23 As previously described, it was at this meeting that the Union also asked the Respond- ent about the removal of the truckdrivers from their driving jobs 24 On arbitration, as we have seen, the Union proposed third party arbitration as the ultimate step in the grievance procedure. On June 28, Respondent objected to the proposal for third party arbitration and proposed that Respondent's president be the final court of appeal on grievances. The Union objected. Respondent said that it thought it could draft some language on an arbitration provision that the Union could live with. On July 20, Respondent submitted its written contract proposal, with Respondent's president as the final step in grievance procedure. The Union objected. Respondent said again that it thought it could draft an acceptable provision. Respondent at no time submitted any grievance procedure proposal except one that vested Respondent's president with the final word on all grievances. Respondent's explanation for its ultimate failure to draft an arbitration proposal, as it had predicted or promised would be acceptable to both parties, is that the disagreement of the parties on the issue of a wage increase and checkoff rendered any arbitration proposal a futility since the Union had said that agreement on a wage increase, checkoff, and arbitration provisions was essential. FARMERS CO-OPERATIVE GIN ASSN. 899 increase, but with Respondent reserving the right to increase or decrease the wages of individual employees for efficiency or inefficiency in an amount not exceeding 10 cents per hour. On July 20, the parties discussed Respondent's contract pro- acceptance. Respondent did not alter its position on wages as set forth in its con- posal. On Respondent's wage proposal the Union indicated disagreement and non- tract proposal aforedescribed. After further discussion, the Union proposed a 121/2- cent wage increase at two periods, a checkoff, and arbitration, and said that if Respondent agreed on these items a contract could be consummated 25 Respondent stated its position as to each of the proposals aforementioned. Since we are now considering only the wage aspect, we continue ourselves to wages. Respondent stated that it would not agree to a wage increase. It is clear that Respondent's position on July 30 was the same as it was on June 28. Its sole position regarding wages, as set forth in its contract proposal, was, no wage increase. The position was the same whether the Union wage proposal was 65 cents, 121/z cents, or any amount. Respondent simply did not choose to offer a wage increase to the Union in the course of their negotiations. On its face, this was a tenable position and not illegal. Clearly, the Act does not require the offer of a wage increase. On August 5, in the presence of a mediator and Respondent, the Union described the issues on which the parties were apart. There was no dissent, amendment, or qualification offered to the brief exposition. The statement was that Respondent would not agree to a wage increase (checkoff and arbitration, with the posture of the latter item described). The Union said that if it could get some of a commit- ment on a wage increase and checkoff, it could probably go along with Respondent on the rest of the contract. The mediator met with Respondent. He reported to the Union that the Respondent's position on wages was the same, no increase. The Union asked the mediator if he could secure any kind of a wage increase offer from Respondent. The mediator said that Respondent would offer no wage increase. In the presence of both parties, the mediator, without dissent by Respondent, stated that the latter's position was the same, no wage increase and no checkoff. We believe that the evidence demonstrates that both parties were aware that the Union's proposal for three items as conditions for the consummation of a con- tract was a bargaining position. This is clear from their position on one of the three items, arbitration. The Union's written proposal was for third party arbitration. The Respondent's written counterproposal was for final decisional authority in the Respondent's president. Yet on July 20 and thereafter, Respondent, recognizing the negotiable nature of the three items, said that it believed that it could draft an arbitration clause acceptable to both parties. The Union consistently went along with this rather general and never concretely expressed position of Respondent on arbitration and the main issues were checkoff and a wage increase. We are not persuaded that either party regarded the Union's proposed wage increase of 25 cents as nonnegotiable. Both parties were aware that the prevailing wage in the plant was $1.25-$1.30 and that any wage increase, whether 5, 8, 10, 12, or 15 cents, was something that would not be regarded lightly by either side. Respondent did not have to offer any wage increase and the Union did not have to accept whatever increase was offered. But we are convinced that Respondent was aware that its choice on wages was not limited to 25 cents or nothing. The Union made it clear that its three items were: some offer of a wage increase; and some- thing in the nature of checkoff and arbitration. Respondent' s consistent responses were, no wage increase and no checkoff. The response on wages was not, no 25-cent increase since that is the only figure that the Union will accept, but rather, no wage increase in any amount. The Union in proposing checkoff, a wage increase, and arbitration as essential items did not say that there is no use in discussing these items unless you agree to the exact terms of our three proposals. What the Union did say was that there was no use in discussing other contract provisions, e.g., holi- days, management rights, etc., unless there was some agreement on a wage increase, checkoff, and arbitration. It is admitted that in the payroll period from July 29 to August 30, 1965, with- out any word or intimation to the Union, the certified bargaining agent, the 25 The Union was, in effect, subject to its own proposal on three items, willing to go along with Respondent's written contract proposal . The latter was not a particularly palatable matter to the Union as Respondent in its brief indicates Thus, "admittedly some of the [Respondent's] proposals are not proposals that Respondent could insist upon . . . . Rather, the proposals made were conditionally accepted by the Union. that 11 is, upon condition that Respondent yield to the Union's demand for three items . . . . 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent raised the wages of 12 unit employees from $1 .25 to $1 .30 per hour.28 Respondent, in its brief refers to the above increases as "merit wage increases," stating "Respondent had a policy at its plant of giving merit wage increases to some of its employees from time to time." The evidence as to Respondent 's wage policy Respondent tried to give employees "a raise soon after they work awhile and learn consists principally of the testimony of Manager Williamson . The latter stated that their job . . . just odd times . . ." He testified, in answer to a specific question, that there was no set or fixed period of time that brought about a raise and he stated that employees received a raise "after a few months ." Williamson said he con- sidered employees for a raise on an individual basis but then said that "it could be individuals or could be a group of them sometimes " but usually on an individual basis. We find no evidence that persuades us that the raises granted in the July 29- August 30 period were periodic increases , i.e., increases customarily granted after 60 or 90 days of employment, or every 6 months, or annually, or at any other fixed period. Nor is there evidence to indicate more difficult or superior individual or group work performance on the part of the recipients (merit) of the July 29- August 30, 1965, wage increase. Among the recipients of the increase from $1 .25 to $1 .30, in the aforementioned period, was employee Gibbons , who had been employed since March 8, 1962, and employee Hooten , who had been employed since August 26, 1965. We are unable to understand how Gibbons and Hooten both became merit wage increase recipi- ents in August 1965 (except through Respondent's fiat), since the only evidence concerning their performance is that one had worked about 32 years and the other had worked about 3 days . Other beneficiaries of the wage increase and the dates of their employment are: Hedrick , August 27, 1964; McQueen, January 7, 1965; Arthur Chiles, February 5, 1965; Melvin Chiles, January 10, 1964; Johnson, Decem- ber 12, 1963 ; Hankins, January 6 , 1965 ; Person, September 3, 1964; Robinson, November 14, 1963; T. Brown, August 29 , 1963; and L. Brown, December 3, 1964. We can discern no pattern or standard applicable to the foregoing group of individuals other than the fact that Respondent chose to raise each of them to $1.30 per hour in the July 29-August 30 period. In any event, the appellation, merit wage increase, even if appropriate, is not dis- positive of the obligations imposed by Section 8 (d) and (a) (5) of the Act. Merit pay increases are a proper subject for collective bargaining .27 If Respondent con- templated, as it quite evidently did, in July and August 1965, that it was prepared to grant wage increases to a substantial member of its unit employees , there was a legal obligation to discuss the proposed action with the Union, the collective- bargaining agent . This Respondent failed to and unilaterally granted the wage increases described above . We find this conduct to be in violation of Section 8(a) (5) and (1 ) of the Act 28 Respondent, in its brief, states that an impasse in bargaining had been reached and that it was therefore justified in granting the wage increases aforedescribed. Respondent, however, had never offered to , or discussed with, the Union the fact that Respondent was prepared to grant a wage increase to a substantial number of the unit employees . The Union had proposed initially a substantial wage increase. Respondent's sole written contract proposal provided that existing wages would 28 There were 52 eligible voters in the election . Twelve would be approximately 23 per- cent of this number. g+ May Department Stores Co. v . N.L.R.B., 326 U S. 376. 25The case of White, R. L, Joella White Bitter and Evelyn White Thomson, d/b/a Whites Uvalde Mines v. N.L.R .B., 255 F.2d 564 ( C.A. 5), cited by Respondent, Is distin- guishable from the instant case . In the cited case, the court found that it was not illegal for Respondent to have raised the pay for 5 out of 60 unit employees . The two grounds on which the court sanctioned the foregoing action are not present in the instant wage Increase situation . The court found that the increases had been granted before bargaining had commenced and also found that there was specific evidence of change In job content of the five recipients that warranted the increases . We believe further comment regard- ing the respective positions of the court and the Board In the cited case is unnecessary since, as Indicated , the court's principle of decision is not applicable to the instant wage situation . In N.L R B. v. United Brass Works, 287 F.2d 689 ( C.A. 4), also cited by Re- spondent, the employer had discussed and bargained with the Union regarding proposed merit wage increases. It was held not improper for the employer , following the termination of negotiations , to then place in effect the Increases that it had previously discussed with the Union. This is surely not the case before us. FARMERS CO-OPERATIVE GIN ASSN. 901 remain the same. The Union then reduced its wage demand to a 121/2-cent increase in two steps. Respondent's reply on July 20 was that it would agree to no wage increase. Respondent did not say that it would not agree to 121/2 cents or that it believed that it could or would offer 5 cents to some 12 employees . Respondent's position was simply that it would not grant a wage increase . On August 5, the Union stated in the presence of the mediator and of the Respondent that wage- wise, the parties were apart because Respondent would not agree to a wage increase. Respondent did not dissent from this statement nor assert that its position was that it would not agree to the Union's demand for a 121/2-cent increase. The Union sepa- rately urged the mediator to see if he could secure some kind of a commitment on a wage increase from Respondent. After conferring with Respondent, the mediator reported, in the presence of both parties, that the Respondent's position on a wage increase remained the same, no wage increase. We believe that the obligation of good-faith bargaining was disregarded by Respondent in its bypassing of the Union on the matter of a wage increase. What- ever impasse there was had a better prospect of resolution if Respondent had ful- filled its statutory duty of discussing with the Union the wage increase that Respond- ent had chosen to grant unilaterally. Thus, on two of the three issues separating the parties, a wage increase and an arbitration provision , Respondent's position was to make no definitive move whatsoever . On wages, Respondent's position was no increase, not even mention of the July 29-August 30 increases . On arbitration, Respondent's only definitive proposal was that the grievance procedure would cul- minate in the decision of Respondent's president. This was of course, not third party arbitration. But, while Respondent said that it believed that it could draft a proposal on arbitration that would be acceptable to both parties, it never submitted any proposal except the one aforedescribed involving the Respondent's president. In short, while it is perfectly clear that an employer is not obliged to offer or to agree to a wage increase or to an arbitration provision, the law does require bar- gaining in good faith. In the circumstances of this case , Respondent has demonstrated by its unilateral May 28 removal of six or seven truckdrivers from their regular jobs, that it regarded the certification of the Union as having no effect on Respondent's unilateral right to remove employees from their job. Respondent has further demonstrated that whereas the employees, through their bargaining agent, were offered nothing in the way of wage increases, Respondent, unilaterally, could and did bestow wage increases upon certain of its employees. When the employer unilaterally bestows detriments regarding employees' conditions of employment, as on May 28, and when it unilaterally bestows benefits in the form of wage increases, as on July 29- August 30, the spectrum is a fairly complete demonstration that the employer regards certification and the obligation to bargain as having no practical effect on employee or union rights and conditions of employment. As it had done on July 28, the Union, after August 5, again reported to the employees the Respondent's position in the negotiations and on the terms of a contract. We have previously described Respondent's position. Aside from Respond- ent's position at the negotiations, of which the employees were advised, they were likewise aware of what had happened on May 28 when certain truckdrivers were removed unilaterally by Respondent to jobs at which their income was less than previously. The employees were also aware that whereas Respondent had refused to offer any wage increase in contract negotiations with the Union, Respondent had, during the same period, unilaterally granted wage increases to 12 unit employees. As a consequence of Respondent's failure to bargain in good faith, as found hereinabove, the employees, under. the leadership of the Union, struck Respondent on October 11, 1965. In letters sent to customers of Respondent, the employees requested their sympathy and support, stating: The employees of the Farmers Co-operative Gin of Sulphur Springs, Texas are on strike in protest of company unfair labor practices and for better work- ing conditions and better pay... . The letter pointed out the low wages received by Respondent's employees and adverted to the fact "we tried on three occasions to bargain collectively with the managers, [and] the only thing they offered was not to cut our wages more than ten cents per hour." Quite clearly wages were an important and readily understood issue. It had been undoubtedly the hope and expectation of the employees when they voted for the Union as their bargaining representative that, through collective bargaining with Respondent, the Union would be able to achieve a contract 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD embracing improved wages and other conditions of employment . The strike was in protest of Respondent's failure to bargain in good faith in violation of Sec- tion 8(d) and (a)(5) of the Act as described above. It was reasonably believed by the Union and its adherents that it was the failure of Respondent to bargain in good faith that prevented the negotiation of a contract embracing improved wages and other conditions. That was the cause of the strike. We find that the strike was an unfair labor practice strike 29 It is our opinion that Respondent 's unilateral acts with respect to truckdrivers and with respect .to wage increases, despite the presence of a certified bargaining agent, establishes Respondent's lack of good faith in discharging its obligations under Section 8(d) and (a) (5) of the Act . We also believe that the evidence aforedescribed establishes the nature of the strike as an unfair labor practice strike. However, we are not justified in ignoring other aspects of, and issues in, the bargaining, and these will be discussed. As we have seen, the negotiations had reached the point where the Union was willing to accept the Respondent 's proposed contract draft if agreement could be reached on a wage increase , checkoff, and arbitration. On arbitration , Respondent stated on several occasions that it thought that it could prepare an acceptable proposal but it never did so. Despite the fact that the Union had expressed a willingness to accept a no-strike clause and other contract provisions of Respond- ent, it appeared willing to also go along with Respondent on the latter's rather indefinite but repeated assertion that Respondent could and would come forward with something in the nature of acceptable arbitration . This left the issues of a wage increase and checkoff as the points of disagreement . Respondent's lack of good faith on the wage issue we have already described. We propose now to discuss the checkoff. As was true of the wage issue, Respondent was not required to grant a checkoff. Its obligation was to bargain on the issue in good faith. An employer need not agree to a checkoff but he is obligated to bargain in good faith on the issue in the context of the particular factual situation. Respondent refused to agree to a checkoff provision on the ground that collection of dues was the Union's business. On its face , this is a valid position . Our concern under the law is not whether the employer should or should not agree to a checkoff or any other provision Our concern and responsibility is whether or not there was bargaining in good faith. At the hearing, Williamson, Respondent's manager for 14 years, was asked: Q . Mr. Williamson, is it customary sometimes for the Respondent to make deductions from the pay checks of the employees? A. That's been a policy ever since I have been there. The evidence reveals that Respondent made payroll deductions from employees' pay for remission to banks on private loans made by banks to individual employ- ees The mechanics of such an arrangement were that the employee borrower would negotiate a loan with some bank The employee and the bank would orally advise Respondent that the employee was borrowing a named sum of money from the bank and that both the employee and the bank were requesting Respondent to deduct a named sum each pay day period from the employee's wages and to remit the deducted sums to the bank on the loan Respondent customarily entered into such arrangements when so requested. There is no evidence that Respondent ever refused such requests. It also appears that in order to purchase a new motor for his car from an auto- mobile dealer, one of the unit employees in Respondent's plant had entered into a three-way arrangement between himself, Respondent, and the car dealer. The ^ As was said by the court of appeals in it case involving a strike over a discharge, "The strike was caused by the discharge of Olvera. Because his discharge was an unfair labor practice, the strike was an unfair labor practice strike . . " Shattuck Denn Mining Corp. v. N L R.B , 362 F 2d 466 (C A 9). In the instant case, the employees announced in the letter to customers of Respondent that the strike was "in protest of Co'upany unfair labor practices ." To what unfair labor practices was reference being made except the conduct of Respondent described in this Decision If Respondent had not engaged in un- fair labor practices, then the strike in protest against such practices would not be an unfair labor practice strike But if Respondent has engaged in unfair labor practices and the strike is in protest thereof, it is an unfair labor practice strike FARMERS CO-OPERATIVE GIN ASSN. 903 arrangement, apparently oral, was that Respondent would deduct a sum of money from the employee's weekly pay and remit the same to the car dealer as payment on the employee's purchase of the motor from the car merchant. Pursuant to the arrangement, the. following sums were deducted by Respondent and remitted to the merchant: $47 on August 20, 1965; $47 on August 27; $50.30 on September 2; $47 on September 9; $65.70 on September 16; $37.30 on September 24; $75.34 on September 30; and $70.20 on October 7. The foregoing evidence, which we credit, was introduced after Williamson, although admitting that Respondent made payroll deductions to be applied to employees' private loans from banks, denied that Respondent did the same for merchants.30 Williamson also testified that the Respondent had made deductions from employ- ees' paychecks on money loans made to employees by Respondent. Respondent had also done this, according to Williamson, with respect to purchases made from Respondent's retail store.31 Additionally, Respondent sold merchandise from its store to employees on a variety of rather irregular and varied arrangements, that bespoke of Respondent's willingness and ability to cope with the bookkeeping entailed. Thus, an employee might make purchases of a gun, paint, tires, totaling such figures as $177 or $220 and would orally agree to pay $5 a week; or the arrangement might be for the employee to pay as he could and in no fixed sum per period. And, of course, Respondent, as required by law, made payroll deduc- tions for income tax and social security purposes. We believe that it is clear from the foregoing that Respondent had no objection to the concept of payroll deductions, for a variety of purposes, from the wages of its employees. Equally clear is the fact that the keeping of accounts and bookkeep- ing with respect to employees and their creditors was not regarded as a problem by Respondent. Indeed, it is clear that Respondent did not object to the checkoff, the deduction of union dues from an employee's pay, on any basis, except that it regarded the collection of union dues as union business. Commendably, Respondent was willing to accommodate its employees when they came to Respondent with a request that payroll deductions be made from their pay and that the deductions be remitted to banks, merchants, and to Respondent itself when it functioned as a lender or as a merchant. By the same token, Respondent, agreed with banks and merchants, together with the employees involved, to accom- modate all concerned in these matters of deductions and remittals. Respondent, however, refused to agree to deduct $5 a month as union dues from the pay of employees and remit the amount to the Union.32 It is to be home in mind that under the law and under the Union's proposal for a checkoff, the oral arrangements acceptable to Respondent regarding deductions for banks, merchants, and itself as creditor, were not contemplated nor were they permissible with respect to union dues. The dues checkoff would require individual written authorization from any employee who, of his own volition, decided that, having voluntarily become a union member,33 he wished to pay his dues by having the dues deducted from his pay and remitted to his union 34 In short Respondent is, in substance, saying to its employees and to the Union we will make deductions from an employ- ees' pay and remit to a third party, except where it involves legitimate union activ- ity on the part of employees and the Union. Collection of a bank's loan is the bank's business. Collection for a merchant's sale is the merchant's business. Payment to the bank and to the merchant is the employee's obligation. Respondent accom- modated the bank, the merchant, and the employees by making paycheck deduc- tions and remittals. But, if the employee wished to undertake membership and dues '*Respondent later stipulated regarding the payroll deductions for the car dealer, afore- described. We find little or no basis for concluding, that since Respondent made deductions from an employee's pay on a purchase from the Ford dealer Respondent would not have acted similarly on another purchase from a General Motors or Chrysler dealer, or some other respectable merchant. There is no evidence that Respondent ever, when approached by an employee and a merchant to make payroll deductions on a purchase, iefused such a request. 31 On its premises, in addition to its principal feed and fertilizer operation, Respondent maintained a store at which it sold guns, ammunition, tires, paint, and related items 88 The record does not show the amount of union dues We have chosen $5 as an arbitrary figure. It may have been more or may have been less 33 Texas is a right-to-work State. 84 The checkoff also required Respondent's agreement with the Union to make the deduc- tions when authorized by an employee and to remit the amount to the Union. 904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation to the Union and the Union wished to have an understanding with Respondent for the dues deductions and remittals, Respondent rejected the proposal on the ground that dues collection was the Union's business. Of course it was the Union's business and the employees' business, just as other deductions and remittals were the business of the banks, the merchants, and the employees involved. In the circumstances of this case, we view Respondent's position regarding pay- roll deductions for union dues as discriminatory against the Union because it is a union and discriminatory against employees because the proposed dues deductions were a union activity of employees. The discrimination is the more evident since, with respect to banks and merchants, Respondent owed no statutory duty to dis- criminate and owed no statutory duty to negotiate (payroll deductions and remittal matters) in good faith. Respondent was agreeable to payroll deductions and remit- tals at the request of employees and third parties although, with legal impunity, it could have refused to negotiate the proposed arrangements and could have refused and could have discharged any employee urging such arrangements . But, when the same situation of deductions arose with respect to the same employees and the Union, to whom Respondent owed (1) a statutory duty not to discriminate because of union activity and (2) a statutory duty to negotiate in good faith, Respondent drew a contrasting and discriminatory line on the basis that union dues were the Union's business. A prime purpose of the Act is to promote the peaceful settlement of potential industrial disputes by subjecting issues between management and labor to negotia- tion and agreement in the form of a contract. But before such a point can be reached, the Act recognizes that employees must have the right to join, form, or assist labor organizations and to engage in union activity, or to refrain therefrom, without discrimination against such rights and activity. In a sense, protection against discrimination is the foundation upon which the whole structure rests. The ultimate goal of peaceful accommodations between management and labor cannot be attained if the union and the union activities of employees, whether proposed or actual, are discriminated against as contrasted with the treatment of other organi- zations and other activities.35 From the standpoint of fact, law, or logic, we are unable to perceive how an employer can be said to be bargaining in good faith with a union when he applies a discriminatory standard against the union on the very issue on which he purports to be bargaining in good faith. Respondent has no objection to and makes payroll deductions and remittals for its employees and third parties. But when it purports to negotiate in good faith with a union, as required by law, payroll deductions for its employees and for a third party, the Union, are refused on the ground that it is the Union's business. The position is not only discriminatory in a statutory context where such discrimination is interdicted but it is discriminatory and not in good faith in view of the fact that "Collective bargaining . . . foresupposes, a desire to reach ultimate agreement, to enter into a collective bargaining contract." 36 "A 85 An employer plant rule forbidding solicitation during working hours may be perfectly valid but if it is discriminatorily applied it is legally vulnerable, I e., despite the plant rule, the employer has customarily allowed employees to solicit for the Elks, Masons, Knights of Columbus, Heart Fund, Red Cross, Committee for Safer Highways, Committee for Local Merchants Annual Outing, Committee for the Viet Nam War, Committee Against the Viet Nam War, and so forth, but the employer has forbidden union solicitation. Such situations are generally attacked under Section 8(a)(1) of the Act; or, if an employee is discharged for union solicitation in violation of the plant rule, the situation would be attacked under Section 8(a) (3) of the Act. Let us assume, however, that a union becomes certified in the aforedescribed plant with its no-solicition rule and the discriminatory enforcement thereof. In the course of contract negotiations, the union requests that the employer agree to permit certain defined union solicitation in the plant. The employer replied that union solicitation is the union's business and will not be permitted on the employer's time The union files a refusal to bargain charge, relying on the evidence, aforedescribed, of the discriminatory application of the employer's no-solicitation rule. In such situation, we think there is an absence of good-faith bargaining on the part of the employer and that there has been a violation of Section 8(a)(5). Since even uniformly applied standards and rules may be vulnerable (Republic Aviation Corp. v. N L R.B., 324 U.S. 793), a discriminatorily applied rule or standard is vulnerable, a fortiori. 36 N.L R B. v. Insurance Agents' International Union, 361 U.S. 477, 485. FARMERS CO-OPERATIVE GIN ASSN . 905 desire to reach ultimate agreement" is imperceptible in the circumstances we have described 37 We find that Respondent did not bargain in good faith as required by Section 8(d) and (a) (5) of the Act with respect to the proposed checkoff. We further find that when the employees and the Union struck "in protest of Company unfair labor practices . . . ," the latter embraced the checkoff issue as well as the other aspects which we have previously found to be unfair labor practices. We find confirmation of our view that the strike was an unfair labor practice strike. D. Other 8(a)(1) incidents Witness employee Ivery testified credibly that about a week before the October 11, 1965, strike, Supervisor Ellis spoke to him in the plant. Ellis asked if the Union had gone and Ivery said, no38 Ellis said that "the man" had said that he was not going to sign any contract and did not intend to.39 A few days before the above conversa- tion, according to Ivery, Ellis had told him in the plant that "the man" had a good raise for us if we left the Union alone. Employee Rueben Morris, whom we credit, testified that sometime before the strike, while at the plant, Ellis stated that "the man" said, if you will forget the Union, he would try to give the employees a raise. After the strike ended in Decem- ber, Ellis said that the troublemakers would be culled out and the men who wanted to work would then be retained. A day or so before the strike, Ellis asked employee Person if the men had for- gotten about the Union. Person replied that he did not think so. Ellis said that he had not heard much about the Union lately and observed that if the men forgot about the Union there was a raise in it for everybody. Around the middle of September, Ellis told employee Tennison that he was a fool to be for the Union and, if the employees forgot about the Union, the man had a raise for them. Ellis said that the Respondent had enough money to break the Union and there would never be a union at the plant. He said that Respondent would never sign a contract. 1. Paycheck deductions The General Counsel alleges that while employees were on strike Respondent made deductions from their paychecks to discourage their union activities. At the commencement of the strike on October 11, 1965, about 15 strikers owed various sums to Respondent for purchases they had previously made from Respond- ent. As was customary with Respondent, there was no written document between the employee and the employer specifying how the debt was to be repaid. William- son testified that generally when employees made purchases from Respondent, the latter endeavored to have an understanding with the employee at the time of the purchase that a certain sum would be deducted from the paycheck per week or per month to be applied to the account. Such specific evidence as we have from some of the debtor-strikers with whom we are here concerned, is to the effect that at the time of purchase the only understanding was that they would pay on their account as they could or at a specified rate, or, in one instance , nothing was said as to repayment arrangements. We think it reasonable to conclude, nevertheless, that all concerned understood that the debts were to be repaid with some reasonable regu- larity. The informality of the entire procedure is explainable, we believe, because Respondent felt that it ultimately had the security and sanction of withholding money from the wages earned by the debtors. We doubt that the employees were unmindful of this potentiality albeit there probably was no express reference to, or express assent to, such sanction. It was also Respondent's practice, when an employee was leaving Respondent's employment, to deduct from the last paycheck any outstanding indebtedness owed by the employee to Respondent. In any event, there is no dispute that the instant debts existed and that the amounts thereof were accurate. 37 Concessions cannot be compelled but, in particular contexts and circumstances , refusal to make a concession cannot be used "as a cloak . . to conceal a nurnoseful strategy to make bargaining futile . . .." N L.R.B. v Herman Sausage Co.. 275 F 2d 229 , 232 (C A. 5). Cf. H. D. Porter Company, Inc. (United Steelworkers of America) v. N L R B , 363 F.2d 272 (CA.D.C.). 38 As we have seen the Union and Respondent last met on August 5. OD Employees commonly referred to Williamson , the plant manager, as "the man." 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ` After the strike commenced, the strikers had varying sums due them from Respon- dent for hours worked before the strike. Respondent's position was that the strikers were economic strikers and that it had hired replacements for all but two by Octo- ber 16, and, by October 18, had replaced-the remaining two. The posture, there- fore, from Respondent's point of view, was that the strikers had been permanently replaced and that they had no legal right to reinstatement. Although we have found that the strikers were unfair labor practice strikers , with a consequent right to rein- statement upon request, we are not convinced that this is dispositive of the particular situation of the striker-debtors with respect to Respondent's action on the debt issue. The duration of the strike at the time was not known. Particular strikers might never work for Respondent either because they had moved or secured other jobs, or for some other reason. Respondent had on its hands a series of unsecured debts, lacking promissory notes, chattel mortgages, or other documentation as to obliga- tions and repayment. No payments were made by striker-debtors after the strike commenced and prior to October 16, when Respondent took certain action, herein- after described, and no striker-debtor, prior to October 16, had endeavored to reach an understanding with Respondent as to the status of the debts during the strike. Before taking action, Respondent approached various striker -debtors and requested them to execute an authorization for deductions to be made from their pay for application on their debts. Only one such form was executed by a striker. Respond- ent, on October 16, issued paychecks due the strikers for work performed prior to the strike A paper showing the names of the strikers, their respective gross wages, the nature and amount of deductions and the net pay was prepared by Respondent. Jennings, the union representative, came to pick up the checks for the strikers. The checks and the above document were given to Jennings. The documentation showed, for instance, that the gross wages owing to one employee were $11.55, with 42 cents deducted for social security, $11.15 deducted for his debt to Respondent, and no net wages remaining. Another man had $27.50 gross wages, $1 for social secur- ity, 30 cents for withholding tax, $16.21 applied to debt, and net pay of $9.99. Emnloyee Rhodes had $27.63 gross wages, $1 for social security, $2.10 for with- holding tax, $24.53 applied to debt, and no net pay. In some instances, the debt deduction probably liquidated the debt but, in other instances, the employee still owed money to Respondent. Although Rhodes. for instance, received no net pay, after deductions, he still owed Respondent $257.11. It is true, of course, that but for the fact that the employee-debtors were engaged in a protected activity, the strike, they would presumably have been allowed to nay on their debts in the somewhat relaxed manner that Respondent in the past had countenanced. However, there are certain economic disadvantages, perhaps tempo- rary. that the striker incurs by striking An employer does not pay wages to employ- ees for their nonwork striking time. By the same token, an employer may not be willing to extend credit to an employee who has no weekly income because he is engaged in a strike, whereas credit might otherwise be extended. We do not regard Respondent's paycheck action unreasonable under all the circumstances and we are not prepared to find that it was Respondent's hostility to the union activity of the strikers, rather than its legitimate concern over the unsecured debts owed to it, that prompted the aforedescribed deductions. The General Counsel, in our view, has not sustained the burden of proof on this issue and dismissal thereon is recommended. 2. The termination of the strike and related events On December 10, 1965, the Union, by telegram to Respondents, on behalf of all strikers, requested that the strikers be reemployed and gave formal notice of the termination of the strike as of December 10. The telegram likewise requested resumption of bargaining between the Union and Respondent . Respondent's counsel replied by letter and telegram of December 15. It was stated in Respondent's tele- gram that on December 10, when the strike was terminated, there were no vacan- cies for the strikers and therefore no jobs available; it was further stated that the Union's telegram would be accepted as an application for employment by each striker and that the latter, excepting those who had engaged in strike violence, would be considered for employment as vacancies occurred; strikers were to be advised by mail if vacancies arose. In its letter, Respondent stated that.,the Union had imposed three conditions as necessary for a contract, checkoff, a 25-cent wage increase, and arbitration. Respondent stated that its position was that it would not agree to a checkoff or to the wage increase but had pointed out that it "thought we could work out something on . arbitration." The Respondent asked if the Union was still requiring the aforementioned contract conditions. FARMERS CO-OPERATIVE GIN ASSN. 907 The Union, by letter of December 21, replied to the Respondent's letter of December 15. The Union denied that it had insisted on the matters described by Respondent and that it did not insist on them as a condition for the resumption of negotiations . The Union asserted, as an example of Respondent's bad faith, that Respondent had, at all times during the negotiations , taken the position that it "would not grant any form of wage increase . . . ." and then had given some uni- lateral increases to employees in the unit . Respondent replied on December 28, stating that it did not agree with the Union's version. Respondent went on to state that as a result of the strike, the strikers had been replaced and ceased to be employees of Respondent. Respondent further said that it did not believe that the Union represented a majority of the employees "at this time," asserting that the majority of the Union had been lost because of the strike. Respondent then stated that it declined to meet with the Union for bargaining purposes. Thereafter, according to testimony introduced by Respondent, new machinery, the acquisition and installation of which had been in process for some time, was installed in the plant. This necessitated additional employees and Respondent wrote to the strikers offering them employment40 Pursuant to Respondent's letter, strikers reported for work and were hired in various jobs. Respondent did not purport to reinstate the strikers since it regarded them as replaced economic strikers having no right to their former jobs 41 In its brief, Respondent states that it hired strikers in "new jobs." Since we have found that the strike was an unfair labor practice strike, and, the strikeis having made unconditional request for reinstatement, they are entitled to reinstatement to their former jobs as of December 15, 1965, with the exception of certain individual strikers hereinafter discussed. Inasmuch as the strikers were entitled to any loss of earnings suffered by reason of Respondent's failure to rein- state them, this will include any difference in earnings that may exist or have existed between earnings that would have been received if they had been reinstated to their former jobs and the earnings on the jobs in which they were hired. Employee Tennison went on strike with the other employees on October 11, 1965. On October 12, Tennison went to Williamson and asked him if he could have his iob back because he had a family to support. Williamson told Tennison that he already had a replacement on Tennison's truck and therefore did not need Tennison With other strikers, Tennison was hired on January 3, 1966, but was not reinstated to his former job. Since Tennison applied for reinstatement on October 12, 1965, he is, and was, entitled to reinstatement as of that date. Com- putation with respect to Tennison's earnings are to be made from October 12, 1965. About a week after the strike commenced, according to Williamson, employee Mosr, a striker, telephoned Williamson at the latter's home and said that he wanted to return to work because he needed his job. Williamson told Moss that he had no vacancy for him. Moss was hired on January 3, 1966, but not in his former iob. We make the same determination with respect to Moss as we made regarding Tennison, except as to date The date applicable to Moss is October 18, 1965 Also, according to Williamson, about a week after the start of the strike, employee Camper, a striker, accompanied by his family, came to Williamson's home. Camper said he would like to come back to work but Williamson said that he had no opening for him. We find that Camper was entitled to reinstatement as of October 18, 1965, and computations to be from that date.42 Wallace Carter was a striker. Respondent sent a letter addressed to Wallace Carter "Rt 3, Sulphur Springs Texas." The letter was dated December 30, 1965, and its contents were the same as that sent to the other strikers , i e., an offer of a job if Carter reported to work on January 3, 1966. Another employee told Carter on January 4 that he had seen a letter for Carter at the post office. Carter went to the post office and got the letter. The letter, addressed as described above, had been marked "Address unknown" by the post office. Carter took the envelope 40 One of these letters, which is in evidence, is apparently representative of communica- tions sent at that time The letter is dated, December 30, 1965. and states that Respond- ent "now has employment available for you at a rate of pay of $1 25 per hour If you desire to work for [Respondentl, you are requested to report for work not later than nine o'clock a in., January 3, 1966 " "Respondent's counsel stated at the hearing, "They [Respondent] didn't purpoit to reinstate any of these on strike In fact in our answer we have denied that there was any reinstatement of any employee." "Camper did not testify at the hearing He apparently was hired on or about January 3, 1966, since he appears on the payroll ending January 7, 1966. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and letter to Williamson on January 5 and pointed out to him that the address on the envelope was incorrect. Williamson made no comment on this, but he told Carter that he did not need him. As Carter left, Williamson told him to come back the next day. Carter did so. Williamson told him to come back in a week. When Carter again reported as directed, Williamson said that he could not use Carter.43 Carter testified that he lived in Como, Texas, and had lived there all his life.44 When he went to work for Respondent in July or August 1965, he filled out an application on which he placed his name, address, and telephone number. The address was "Como, Route 1, Box 67." Respondent introduced no testimony or evidence that its records showed any address for Carter other than the foregoing, or, for what reason the letter was addressed to Carter, "Rt. 3, Sulphur Springs, Texas." In its brief, Respondent simply states that Carter was a replaced economic striker and Respondent owed no obligation to reinstate him; and that Carter "did not respond to a letter Respondent had sent to him offering him employment," in January, after the strike 45 Carter was entitled to reinstatement as of December 15, 1965, pursuant to the ending of the strike and the request for employment by all the strikers. Assuming, as we do, that the incorrect address on the letter to Carter was not deliberate, we find no basis for placing any responsibility for the error or mistake on Carter. The mistake, according to the evidence before us, was Respondent's. We find no negligence or fault on Carter's part. He did the best he could to secure employ- ment with Respondent. Carter is entitled to reinstatement as of December 15, 1965, with the computation of loss of earnings running from that date. 3. Misconduct of strikers Respondent refused to reinstate or to offer new employment to three strikers on the ground that they had assertedly engaged in misconduct during the course of the strike. Thomas F. Person was a striker who, like most, or many other strikers, engaged in picketing during the strike. A few days after the commencement of the strike, according to Sanders, a maintenance employee in Respondent's repair shop super- vised by Ellis, Person and employee Morris came to Sanders' home at night. Sand- ers has known Person over 20 years and they lived within a few blocks of each other for many years. Person, on this particular night, sought to persuade Sanders to join the Union, adding that they would get rid of Ellis, and Sanders would become foreman of the repair shop. Sanders, who was Ellis' uncle, rejected the whole idea. Person referred to the fact that Sanders had a good deal of property on his place, such as livestock, and, if Sanders did not go along with Person's suggestion or proposition, something might happen to Sanders' property. Sanders testified that he ran Person out of his yard because he did not want to hear any more of Person's talk about getting rid of Ellis. Sanders testified that he did not tell Ellis or anyone else about this incident. The following evening, Ellis and Sanders were at the plant, sitting in the wide doorway of the repair shop. Sanders testified that from where he was sitting he saw Person about 120-125 feet away, squatting near a pole or poles. Person, according to Sanders, had a pellet gun and was shooting in a southerly direction away from the shop, toward some parked cars. Person then directed a shot at the repair shop and hit the exterior of that building. With this turn of events, Sanders and Ellis moved back from the shop doorway into the interior of the shop. The next event was a shot that hit near or hit the light or light shade that was about g or 10 feet above a motor on which Ellis was sitting inside the shop. Sanders believed that the shot was of the scatter type or rat-shot since he heard several concussions or reverberations from the shot that hit. Ellis' reaction to the latter shot was to shout to Person that he was looking at him.46 Sanders also shouted to Person and said that they had not bothered Person and that he was going to get Person for shooting at them. Sanders states that a car drove up and Person was putting what Sanders thought was the gun into the car. Ellis and Sanders, after the second shot and after shouting at Person as aforedescribed, then left the shop and walked to the office 43AII the testimony regarding Carter, including the letter and Its envelope, which are in evidence, is Carter's uncontroverted testimony. "We do not know Carter's age but he was not a boy or a youth by any means. 45 No mail, other than the Instant letter, had been sent to Carter by Respondent since the Inception of Carter's employment 40 Ellis used that term "T.F." (Thomas F. Person) in saying, "I am looking at you, T.F." FARMERS CO-OPERATIVE GIN ASSN. 909 in a nearby building. Ellis went in and spoke to Assistant Manger Campbell, while Sanders remained outside. The latter states that he did not see Person any more that evening. Ellis, who had lived in the same immediate area as Person and who has known him since Person's boyhood, testified to substantially the same facts as Sanders. He asserts that he had seen Person on the picket line that evening and then he saw Person crouching with a gun and releasing two shots, one of which hit the outside of the building and the second shot came inside and hit above Ellis' head after he and Sanders had moved back into the shop. Ellis states that he rushed to the door- way and said, "all right T.F." Ellis and Sanders then went to the office and Ellis reported the incident to Campbell. Campbell confirms the report from Ellis about Person and states that he notified the police 47 The following day, a policeman spoke to Ellis about the shooting incident and Ellis said that Person had done the shooting. Neither Ellis, Sanders, nor Respondent filed charges. Policeman Grayson testified that the night of the shooting he was sent to the plant regarding a reported shooting and he spoke to Campbell. The latter told him of the fact that Person had been seen shooting. The policeman looked for Person on the picket line but did not see him. He picked up Person in town the next day and Person was questioned by the police chief. Person denied knowing anything about the shooting and the chief said there were no charges and no proof and released Person. Person testified that he was walking the picket line the evening of the incident and was carrying a picket sign. He states that he had no kind of a gun and saw no one with a gun. Ellis ran out of the shop shouting that T. F. was shooting and then Ellis went up to the office. Person states that when the policeman arrived thereafter Person was in the picket line but neither he nor the policeman spoke to each other. Person admits that the policeman picked him up the next day as afore- described. Other employees who were picketing the night of the incident testified that they saw no gun and no shooting that evening. Some witnesses testified that there were youths of high school age around the street in front of the plant that evening. Other witnesses saw no such young people. Person did not receive a letter from Respondent to report for work on Janu- ary 3, 1966, after the strike. He came in and talked to Williamson. The latter said that he could not employ Person because he had a witness that Person had done the shooting during the strike. Person denied his guilt but Williamson adhered to his position. We have given careful consideration to the Person matter. While we did not regard Ellis as a candid witness on other aspects of his testimony, we credit substantially the testimony of Ellis and Sanders regarding the shooting. In view of expert testi- mony introduced by the General Counsel, the shot was evidently not bird shot but it was some kind of a missile or pellet. We do not believe that the incident was manufactured out of whole cloth and, considering all the circumstances, we are not prepared to reject the testimony of Ellis and Sanders that they saw Person shooting some kind of a gun. We regard it as unlikely that a third party, such as unidentified youths, was the perpetrator. We do not believe that Person intended to hit either Ellis or Sanders or intended to harm them in their person. Although our admitted fallibility makes us conscious that we may be wrong as to Person's guilt, we have more certainty that Campbell and Williamson acted in good faith on Ellis' report. To overcome the good-faith belief of Respondent, it was incumbent upon the Gen- eral Counsel to convince us that Person did not engage in the conduct charged. Although an able effort has been made, we have not been persuaded by the General Counsel. We therefore find that Respondent's refusal to employ Person was not illegal. F. O. Hankins and Frank L. Hedrick were strikers who did not receive letters from Respondent to return to work on January 3, 1966. Upon inquiry as to the reason, each man was told that he had been seen throwing nails on the plant drive- way during the strike. There is little doubt that during the strike, Respondent's trucks and other vehicles experienced a high incidence of flat tires.48 It also appears that large headed roofing 47 Also reported was that the glass on a car parked at the plant that evening was broken or shattered. 48Garner, proprietor of the Garner Tire Company , testified credibly from his records that in September 1965, he had eight calls on flat tires from Respondent. From October 10 to 31, Garner had 25 calls from Respondent and repaired 39 flat tires. In November there were 32 calls and 39 flat tires repaired. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nails were extracted from the flat tires on a number of occasions. Periodically, during the strike, Respondent's people picked up nails from the driveways of Re- spondent's plant. Although the date is not certain, it was probably 3 to 5 weeks after the com- mencement of the strike that employee Newkirk was on a flat bed truck, unloading products beside Respondent's south building 49 Newkirk testified that on that occa- sion he saw Hankins, a striker, whom he knew on sight prior to the strike, ride a motor scooter down the street in front of the plant. Newkirk observed Hankins flip his hand and arm as he passed the Respondent's south driveway on the scooter and Newkirk saw some dust fly up from the driveway, as from some impact. Less than 10 minutes later, another man, whom Newkirk did not know, came by on the scooter and repeated Hankins' performance. Shortly after these events, on the same afternoon, Newkirk reported what he had seen to Foreman Higgins He said to Higgins that he would wager that they would find some tacks or nails in the drive- way.50 Higgins, Newkirk, and some other nonstriking employees then went out to the driveway area identified by Newkirk and picked up a substantial number of new roofing nails. In his above reporting to Higgins, Newkirk identified Hankins by name since he knew Hankins. The other man was identified by Newkirk by giving a description of how the man was dressed. Higgins went out to the area where the strikers were usually assembled near the picketing activities. He identified the man described by Newkirk as Hedrick. Later, Newkirk saw the individual he had previously described and pointed him out to Higgins. Higgins said it was Hedrick. Several weeks before the hearing, Newkirk saw Hedrick at the plant and knew him to be the same indi- vidual he had previously described. No report was made to the police. Higgins did report the incident to Williamson. Until it refused employment to Hankins and Hedrick in January 1966, Respondent took no overt action regarding the affair. Hedrick testified that the scooter belonged to employee Hooten, and that Hedrick was thinking of buying it. He testified that he rode the scooter down the street in front of the plant on a particular day and that Hankins rode the scooter also, but separately, on the same day. Hedrick denies that he threw any nails and denies that he ever saw any nails during the strike out at the plant. When Williamson refused to hire him in January 1966, because of the nail incident, Hedrick denied that he had thrown nails. Hankins testified to substantially the same effect. Additionally, Hankins states that on his ride he turned back before passing the particular drive- way described by Newkirk We considered Newkirk to be the key man in the nail matter. We do not think that Higgins or Williamson procured Newkirk to inform falsely. We discerned no definite antiunion hostility on Newkirk's part. He impressed us as a man, not unlike many of the other employee witnesses, who did a little farming and was glad to get a job at Respondent's plant when the opportunity presented itself. We discern no personal hostility on Newkirk's pact toward Hankins, whom he knew, and Hed- rick, whom he did not know. We are dubious that Newkirk's action and testimony can be ascribed to the possibility that he regarded Hankins and Hedrick, as strikers who might eventually be reemployed, as threats to Newkirk's employment. At the end of all his testimony, which included direct, cross, redirect, and recross-examination, Newkirk spontaneously stated, "I didn't know that I was going to have to do this or I would have kept my mouth shut at the beginning, wouldn't have seen nothing." We regarded this as a frank statement and not that of a guileful man who had con- jured up a false accusation against two fellowmen in the same community. We do not lightly ignore the denials of Hedrick and Hankins and, were we less impressed by Newkirk, the otherwise good impression made by the two men might have well prevailed. We credit Newkirk. During the course of the hearing, we viewed the outside of Respondent's prem- ises, from the front, both from a car and on foot. The points of interest to us were principally the physical aspects relating to the Person's shooting incident and the 49 At the start of the strike, Newkirk was unemployed. On the radio he heard that Re- spondent was hiring Newkirk applied and was hired Like almost all, if not all, the em- ployees who testified, Newkirk lived in the Sulphur Springs area In manner, appearance, and, we surmise, in general background, Newkirk was indistinguishable from the strikers co Newkirk testified that practically every morning during the strike, he and other non- strikers systematically went around picking up nails from the driveways of the plant. Other witnesses of Respondent also testified to picking up nails from the driveways during the strike FARMERS CO-OPERATIVE GIN ASSN. 911 Newkirk-Hedrick-Hankins nail matter. At the time we heard Newkirk's testimony about dust flying up from the driveway, presumably from the impact of the thrown nails, our curiosity was aroused. We envisaged a well defined concrete or macadam driveway, more or less characteristic of plant driveways in large industrial cities. We envisaged a visible puff of dust with difficulty. However, upon viewing the drive- way and general plant environs, we do not reject this aspect of Newkirk's testimony. We do not agree with the General Counsel's statement in its brief that in cases of misconduct such as is here involved "the belief of Respondent is not sufficient for discharge without actual proof." We believe that the rule is that a good-faith belief is sufficient unless "it is shown that the misconduct has never occurred," N.L.R.B. v. Burnup & Sims, 379 U.S. 21, and that "once such an honest belief is established, the General Counsel must go forward with evidence to prove that the employees did not, in fact, engage in such misconduct," Rubin Bros. Footwear, Inc., 99 NLRB 610, 611. The General Counsel has resourcefully endeavored to show the nonguilt of the two strikers We believe that the Respondent had a good-faith belief that they were guilty. The proof is not conclusive. Newkirk could have been wrong. We have no certainty as to the guilt; we believe that Newkirk's testimony was trustwor- thy and we have not been persuaded that the two men did not engage in the mis- conduct. We therefore find that Respondent did not act illegally in denying employ- ment to Hankins and Hedrick. CONCLUSIONS OF LAW 1. Respondent has engaged in conduct, described hereinabove, in violation of Section 8(a)(1) of the Act. 2. Respondent has engaged in conduct, described hereinabove, in violation of Section 8(a)(5) of the Act, in that Respondent did not bargain in good faith with the Union, as the certified bargaining representative, in the respects described hereinabove. 3. The strike was an unfair labor practice strike. 4. The strikers, having applied for reemployment after terminating the strike, are entitled to their former jobs, and are entitled to be made whole for any loss of earnings entailed by Respondent's failure to reinstate them. Respondent's failure to reinstate strikers to their former jobs was a violation of Section 8 (a) (3) and (1) of the Act. 5. Strikers who applied for reinstatement prior to the termination of the strike are entitled to reinstatement as of the date of their applications and are entitled to be made whole for any loss of earnings entailed by Respondent's failure to reinstate them. Respondent's failure to reinstate such strikers to their former jobs was a violation of Section 8(a)(3) and (1) of the Act. 6. Respondent did not engage in illegal conduct by deductions made from the pay of striker-debtors during the strike. 7. Respondent did not engage in illegal conduct by refusing to reinstate or reem- ploy strikers Person, Hedrick, and Hankins. THE REMEDY Since we have found that Respondent has engaged in certain unfair labor prac- tices, we shall recommend that it cease and desist from such unlawful conduct. We have, in the body of our Decision prescribed the remedy applicable to the strikers, including certain individual strikers. That remedy includes reinstatement of the strikers to their former jobs and making them whole for any loss of earnings incurred by reason of Respondent's failure to reinstate them to their former jobs Losses of earnings that may be due are to include interest thereon and are to be computed in accordance with the formulae in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent had engaged in a violation of Section 8(a)(5) of the Act by unilaterally changing certain drivers from their jobs to other less desirable jobs, generally, with consequent lower earnings, we shall recommend rein- statement to their former jobs of the drivers removed on or about May 28, 1965. Aside, from the unilateral aspect of Respondent's action regarding the said drivers, we have noted that in the cases of four of the drivers, Williams, Underwood, Mor- ris, and L. Smith, Respondent acted contrary to its own standard for drivers, namely two or more accidents or violations within the past 3 years. No remedial principle is clearer than that restoration of the status quo ante tends to effectuate the policies 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the Act.51 We shall also recommend that the affected drivers be made whole for any loss of earnings entailed by reason of their removal as drivers in accordance with the principles previously referred to in this section. In the event that Respond- ent thereafter wishes to remove any of its drivers, it is recommended that Respond- ent proceed in accordance with its obligations under Section 8(a) (5) of the Act. The remedy as to the May 28, 1965, drivers is to be without prejudice to any remedial rights they may have as subsequent strikers. It will also be recommended that Respondent, upon request, recognize and bar- gain with the certified Union in good faith as the collective-bargaining agent of the employees in the certified unit and, if agreement is reached, such agreement to be embodied in a written contract. We consider the obligation to bargain in good faith to be the appropriate remedy. We do not prescribe any specific substantive terms or provisions. Accordingly, upon the foregoing findings of fact and conclusions, and on the record as a whole, the following is recommended: ORDER Respondent, Farmers Co-Operative Gin Association, its officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from: (a) Interrogating, warning, or threatening its employees regarding their union activities or votes or promising benefits for abandonment of union activities. (b) Interfering with the rights of its employees to join or assist Dallas General Drivers, Warehousemen and Helpers, Local Union 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or to remain members of a labor organization, or to refrain from such activity. (c) Refusing to bargain collectively in good faith with the aforesaid Dallas General Drivers, Warehousemen and Helpers, Local Union 745, Teamsters Union, as the exclusive bargaining representative of its employees in the certified bargain- ing unit, to wit, all production and maintenance employees and truckdrivers at its Sulphur Springs, Texas, operation, excluding office clerical employees, supervisors, guards and watchmen as defined in the law. (d) Dealing unilaterally, directly or indirectly, with employees in the unit con- cerning their jobs, wages, working conditions or conditions of employment, and bypassing or ignoring the aforesaid Union as the exclusive bargaining representa- tive of all employees in the certified unit. 2. Take the following affirmative action to effectuate the policies of the law: (a) Upon request, bargain collectively in good faith with the certified Union, aforedescribed, Dallas General Drivers, Warehousemen and Helpers, Local Union 745, Teamsters Union, as the exclusive bargaining representative of its employees in the appropriate unit, with respect to wages, hours, and other terms and condi- tions of employment, and embody in a signed agreement any understanding reached. (b) Reinstate, as of December 15, 1965, to their former jobs all employee strik- ers, with all rights and privileges, including seniority, with the exception of three named strikers who engaged in misconduct during the strike. (c) Pay to the said employee strikers any loss of earnings that they may have suffered by reason of the fact that Respondent did not reinstate them to their former jobs on December 15, 1965. (d) Reinstate Bud Moss and Wayne Camper as of October 18, 1965, and rein- state Frank Tennison as of October 12, 1965, to their former jobs. (e) Pay to employee strikers Bud Moss, Frank Tennison, and Wayne Camper any loss of earnings that they may have suffered by reason of the fact that Respond- ent did not reinstate them as of October 18, 12, and 18, 1965, respectively. e+Fibreboard Paper Products Corp. v. N.L.R.B., 379 U.S. 203; National Licorice Co. v. N.L.R.B., 309 U.S. 350, 361-366; N.L R.B. v. Newport News Shipbuilding c& Dry Dock Co., 308 U.S. 241, 250; Virginia Electric and Power Co. v. N.L.R.B., 319 U.S. 533, 538-544; International Ladies' Garment Workers Union v.' N.L.R.B., 366 U.S. 731, 735, 736, 739- 740; Franks Brothers Company v. N.L.R.B., 321 U.S. 702; N.L.R.B. V. Talladega Cotton Factory, 213 F.2d 208, 216-217 (C.A. 5) ; N.L.R.B. v. Better'Monkey Grip Co., 243 F.2d 836 (C.A. 5), cert. denied 355 U.S. 864; N.L 11.B. v. Preston Feed Corp., 309 F.2d' 346, 351-352 (C.A. 4)'. Respondent can, of course, transfer bad risk driver's or, otherwise man- age its business . But it does have certain obligations under the Act that foreclose unilateral action on such matters as the drivers. FARMERS CO-OPERATIVE GIN ASSN. 913 (f) Reinstate to their former jobs all drivers removed or transferred from their jobs on or about May 28, 1965. (g) Pay to the aforesaid drivers any loss of earnings that they may have suf- fered by reason of Respondent's unilateral action in removing or transferring them from their jobs. (h) Pay to employee striker Wallace Carter any loss of earnings that he may have suffered from December 15, 1965, until such time as he is offered reinstate- ment to his former job. (i) Preserve and, upon request, make available to the Board or its agents, under reasonable conditions, for examination and copying , all payroll records, social security records, timecards, personnel records and reports, and all other records necessary to ascertain any reinstatement or backpay due under the terms of this Recommended Order. (j) Post at its place of business in Sulphur Springs, Texas, copies of the attached Notice marked "Appendix." 52 Copies of said notice, to be furnished by the Regional Director for Region 16, after being signed by a representative of Respondent, shall be posted by Respondent upon receipt thereof , and be 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 Respond- ent to insure that said notices are not altered, defaced, or covered by any other material. (k) Notify the Regional Director for Region 16, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.53 69 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice will be further amended by the substitution of the words "a Decree of the United States Court of Appeals Enforcing an Order" for the words "a Decision and Order." 531n the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 16, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate, wam, or threaten our employees regarding their union activities or votes or promise benefits for abandonment of union activities. WE WILL NOT interfere with the rights of our employees to join or assist Dallas General Drivers, Warehousemen and Helpers, Local Union 745, Inter- national Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, or any other labor organization, or to refrain from such activity. WE WILL NOT refuse to bargain collectively in good faith with the Union named above, as the exclusive bargaining representative of our production and maintenance employees and truckdrivers; excluding office clerical employees, supervisors, guards, and watchmen. WE WILL NOT deal unilaterally, directly or indirectly, with our employees in the unit about their jobs, wages, working conditions or conditions of employ- ment and WE WILL not bypass or ignore the Union as the exclusive bargaining representative of all employees in the unit with respect to jobs, wages, working conditions or conditions of employment. Upon request, WE WILL bargain collectively in good faith with the above- named certified Union regarding jobs, wages, hours, working conditions, terms and conditions of employment. WE WILL sign a written contract with the Union if an agreement is reached through collective bargaining. WE WILL, as of December 15, 1965, reinstate to their former jobs all strikers, with all their rights and privileges including seniority, with the exception of three named strikers who engaged in misconduct during the strike. 2 6 4-18 8-G 7-v o f 1 G 1-5 9 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL pay to the strikers entitled to reinstatement any loss of earnings that they may have suffered by reason of the fact that we did not reinstate them to their former jobs on December 15, 1965. WE WILL pay to strikers Bud Moss, Wayne Camper, and Frank Tennison any loss of earnings they may have suffered by reason of the fact that we did not reinstate Moss and Camper on October 18, 1965, when they applied, and did not reinstate Tennison when he applied on October 12, 1965. WE WILL reinstate to their former jobs all drivers removed or transferred from their jobs on or about May 28, 1965. WE WILL pay to the aforesaid drivers any loss of earnings they may have suffered by reason of our action in removing or transferring them from their driving jobs on or about May 28, 1965. WE WILL pay to striker Wallace Carter any loss of earnings he may have suffered from December 15, 1965, until such time as he is offered reinstatement to his former job. FARMERS CO-OPERATIVE GIN ASSOCIATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify the above-named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon applica- tion in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Sixth Floor Meacham Building, 110 West Fifth Street, Fort Worth, Texas 76102, Tele- phone 335-2145. Public Service Company of New Hampshire and International Brotherhood of Electrical Workers, AFL-CIO, Petitioner. Case 1-RC-8997. November 10, 1966 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Robert N. Garner on June 10, 1966, at Boston, Massachusetts. The Hearing Officer's rulings made at the hearing are free from prej- udicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Jenkins and Zagoria]. Upon the entire record in this case,' the Board finds : 1. Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner is a labor organization within the meaning of the Act, claiming to represent certain employees of the Employer. ' Only the Employer filed a brief to the Board. 161 NLRB No. 81.