The Pierce Governor Co., Inc.

PIERCE GOVERNOR CO. 97 The Pierce Governor Company, Inc. and International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO. Case 25-CA-2312. April 24, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On September 19, 1966, Trial Examiner Sidney D. Goldberg issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. 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. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent that they are consistent with this Decision and Order. The Trial Examiner found that Respondent, commencing February 25, 1965, the first day of the 10(b) period,' violated Section 8(a)(5) of the Act by continuously refusing to bargain with Local 9402 "as an integral part" of the joint bargaining agent as to (1) the effects of the removal of Respondent's plant from Anderson to Upland, Indiana, and (2) the terms and conditions of employment at the Upland plant. In addition, the Trial Examiner found that the economic strike, which began at Anderson on November 6, 1964, was prolonged by the 8(a)(5) conduct and was therefore converted to an unfair labor practice strike on February 25, 1965. We do not agree with these findings of the Trial Examiner. As noted above, the International was certified in 1941 as the bargaining representative of production and maintenance employees at the Anderson, Indiana, plant of Respondent. Thereafter, Respondent negotiated with the International and Local 940 a series of agreements, the most recent of which was terminated by, timely notice on October 30, 1964. In the absence of satisfactory progress in bargaining, the Union on November 6, 1964, initiated a strike, which was admittedly economic at its inception, and posted pickets at the Anderson plant.3 The parties continued negotiations at meetings on November 16 and 20 and December 2 and 8, 1964, but it was not until the meeting of December 16,1 1964, that Respondent brought up the subject of moving its Anderson plant to a new location. At that time, Respondent's chief negotiator, Donald F. Strutz, referred to the Union's earlier criticism of the Anderson plant as "unsafe and unhealthful," and stated that Respondent concluded it would be "economically advantageous" to move about 40 miles away to the community of Upland, Indiana. Strutz then suggested a temporary cessation of negotiations on a new bargaining agreement to permit the Company to talk with Upland officials about making the move. Strutz added that should the move be made, each employee presenting himself at the new plant would be given full consideration for reemployment and, if hired, would retain his seniority. With respect to recognition of the Union as the bargaining representative of the employees at Upland, Strutz stated that recognition would be dependent upon proof of representation. International Representative Raymond Shetterly expressed surprise at Respondent's announcement and, after conferring with other officials of the Union, stated that the Union wished to bargain for an agreement on (1) the operation of the Anderson plant so long as it remained at that location and (2) the effects on the Anderson employees of a transfer of the Company's operations to any other community. The parties met again on December 22, 1964, and discussed a contract for the Anderson plant. When the Union proposed a provision prohibiting removal of the plant during the life of such a contract, Respondent conditioned its agreement to this proposal on a provision giving Respondent the right to terminate such a contract upon 30 days' notice of its election to locate the plant outside Anderson. Shetterly then asked that Respondent " guarantee" the transfer of all Anderson employees to the new location. In reply Respondent renewed its offer of December 16 to give consideration to Anderson employees who applied at the Upland plant for employment, with retention of seniority for all those i Sec 10(b) provides in part that "no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board " The initial charge in the instant case was filed on August 25, 1965 ' Although only the International was certified in 1941 for the employees at Respondent's Anderson, Indiana, plant , both the International and its Local 940 have since jointly negotiated agreements with Respondent. I Pickets were later stationed at Upland. 164 NLRB No. 2 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hired. In refusing to guarantee the transfer of all Anderson employees, Respondent took the position that (1) certain employees were physically unable to do a full day's work because of age, (2) other employees, albeit physically able, had not been "delivering a fair day's work," and (3) still others had become unfitted for further employment with Respondent because of their attitude during the strike. The parties then specifically referred to and discussed several employees in the first category. The next bargaining session was held on December 31, 1964. Shetterly offered to have the Union bring in an "economic proposal to hold the [Anderson] plant in town." In reply Respondent advised the Union that it had already directed a contractor to start construction of a new building at Upland on January 4, 1965.4 In the course of bargaining , the parties reached a tentative agreement on the terms of a seniority provision which dealt with various aspects of that subject. Shetterly renewed the Union's demand for a Respondent guarantee of transfer rights for all Anderson employees and Respondent again offered to consider for employment any applicants from Anderson and to preserve the seniority of those selected. In addition, Respondent stated its willingness to give severance pay to those who were not hired. Respondent also assured Shetterly that as of that time no jobs had been "promised" to the town of Upland. The meeting ended without resolution of the transfer issue. The parties met again on January 9, 1965, when the Union was represented by International Representative Carl Parker and the Local 940 bargaining committee. Parker, who indicated that he did not want to bargain for an interim contract for the Anderson plant , asked Respondent to bargain on pay rates at the Upland plant. Respondent replied that it was not obligated to bargain with the Union concerning pay rates for Upland employees who had a right to choose their own bargaining agent . Parker then insisted on going down the Anderson list and discussing "person by person" who would be going to Upland. Respondent refused to do so, explaining that it had no information on how much business it would have at Upland. However, Respondent reiterated its earlier offer to give consideration to Anderson applicants, with seniority for those hired and separation pay for employees not transferred. The next meeting was held on January 19,1965, in the presence of a Federal mediator, with Respondent represented by its vice president, LeRoy V. Bradnick, and the Union by Shetterly and the Local 940 bargaining committee. The parties ' The new plant became available for occupancy in April 1965 However, Respondent began production about January 1965 in rented quarters at Upland Except for one production employee, who had started work at Anderson during the sttke, it appears that Respondent staffed the Upland location with newly hired production and maintenance employees , their number increasing from a few in February to 100 at the end of April, about 153 by decided that further negotiations were useless and agreed to the mediator' s suggestion that they designate subcommittees which excluded Bradnick and Shetterly. Such subcommittee meetings were held on 3 successive days in the latter part of January 1965, with the Federal mediator present on the latter two occasions. On January 20, considerable time was spent by Respondent's representatives convincing the subcommittee of three Anderson employees that Respondent was serious in its intention to move the plant to Upland. The employee subcommittee then demanded a discussion of each employee on the Anderson seniority list to ascertain those desiring to go to Upland. When two members of the employee subcommittee stated that they would under no circumstances transfer to Upland, Joseph E. McDonald, Respondent's treasurer and assistant secretary, pointed out that "it seemed ridiculous" to go down a seniority list of 180 employees to discuss the prospects of those Anderson employees who would not be interested in a transfer. On January 21, Respondent offered immediately to declare the Anderson plant closed in order to enable the employees to draw unemployment compensation. Respondent also offered to go to the "Federal Unemployment Service" to try to secure other jobs for the Anderson employees under what is known as the "Studebaker System." Respondent stated further it would attempt to increase severance pay for Anderson employees by using for that purpose the surplus in the pension fund. On January 22, the employee subcommittee informed Respondent that its proposals were unacceptable. An understanding was then reached by the parties that any future meetings would be called through the Federal mediator. The next meeting was held at the office of the Federal mediator on the morning of January 26, 1965, at the request of Shetterly who advised Respondent that the regional director of UAW Region 3, Raymond H. Berndt, would like to meet with Respondent's president, Leland E. Boren. Representing Respondent were Boren, Bradnick, and Thomas D. Logan, the Company's "corporate" counsel. The union representatives were Shetterly and Berndt. Logan stated that he had no authority to bind Respondent in the absence of Strutz who was in Florida. According to Shetterly, Boren told him that "Local 940 could not bargain for the people in Upland ... that ... Shetterly couldn't be the representative that negotiated the contract in Upland, and ... the people in Anderson would not be given transfer rights as such."5 After 2 hours of early July, 212 at the end of August, and at least 190 at all times since August 1965 5 According to Boren, Shetterly stated that while the latter did not expect Respondent to transfer all Anderson employees to Upland, "Respondent must go through the senionty list" to bargain with respect to the suitability of each Anderson employee for Upland employment PIERCE GOVERNOR CO. 99 discussion, the meeting ended at noon with Berndt indicating that "nothing much was being accomplished," and suggesting a meeting after lunch between him and Logan. At their afternoon meeting, Logan and Berndt agreed that neither of them was in a position to talk about particulars but would explore the issues on a purely personal basis in the hope of coming up-with solutions that might later be useful. Berndt stated, and Logan agreed, that the "economic make-up" of the Upland area and its distance from Anderson were such that it was a mistake to let the negotiations "bog down" in a discussion of transfer rights. Berndt then expressed the opinion that the "important thing" was representation by "some local of the UAW." Logan replied that he could see the advantages of UAW representation and suggested that they talk along that line, keeping in mind that it was relatively academic to discuss transfer rights in view of Berndt's opinion that very few of the union employees at Anderson would care to come to Upland. They proceeded to discuss the possibility of a contract without a provision concerning transfer rights and with a new 1JAW local. The_' meeting concluded with Berndt handing Logan for his study a copy of a contract that the UAW had with another employer in Huntington, Indiana. A day or two later, Berndt telephoned to ask Logan to send a letter confirming their conversation. On January 28, 1965, Logan wrote Berndt a lengthy letter which began with the following "restatement of ... position": That we are not obligated to recognize Local 940 and are unwilling to recognize [it] for any purposes pertaining to employment at any location other than that at Anderson. However, we are willing to discuss the possibility of being able to enter into an agreement with some union at the Upland location. If we could arrive at some agreement with you, I think we would be willing to make that applicable to whatever local you think best and recognize as much as we can the equities of employees who have been employed at the Anderson plant. Logan then indicated Respondent's willingness to recognize "a UAW-CIO Local at Upland" for a 5- year contract. However, Logan cautioned Berndt that Respondent was "not willing to recognize .. . Shetterly and his bargaining committee" with respect to Upland. In addition, Logan stated that Respondent "will bargain [sic] each individual on the seniority list for employment at Upland, taking into account (1) their qualifications for the work, (2) physical condition, (3) mental outlook and attitude, (4) absentee record, and (5) job openings." Logan also expressed Respondent's willingness to give severance pay to all employees with a minimum of 10 years' service if they desired employment at Upland but were not selected therefor. The letter further proposed a contract provision setting forth, in detail, job titles, entry rates of pay, and subsequent automatic increases. Finally, Logan stated, "you might ... propose a formal contract which I promise to take up immediately" with the Company's board of directors. On February 15, 1965, Berndt wrote Logan that his reply had been delayed until that date because he had been out of town for about a week and was ill the following week. Berndt expressed his appreciation of Logan's "recognition of the problem existing with respect to ... [the] employees at [the] Anderson plant and their plight in your moving ... to a new plant at Upland . . . ." Berndt concluded that he hoped "within the next couple of days" to comment on Logan's letter "point by point" and to advise him further "with respect to [Logan's] basic suggestions ... relative to UAW recognition" at the Upland plant. On March 9, 1965, Logan sent another letter to Berndt pointing out that the latter had not yet commented on his letter of January 28. Logan stated that he therefore "assumed" that none of Respondent's suggestions were acceptable to Berndt and Respondent was accordingly withdrawing them and "revert[ing]" to its "former position." Logan concluded with the statement, "We cordially invite your suggestions or comments as to where we go from here." On March 10, 1965, Berndt telegraphed Logan, explaining that he had not been in his office on a full- time basis for the past few weeks, that he had prepared a detailed answer to Respondent's letter of January 28 prior to the receipt of Logan's March 9 letter, and expressing the hope that Logan would "review" his answer in the light of the date of its preparation. Berndt in his letter, dated March 10, indicated acceptance of most of Respondent's proposals. However, Berndt expressed reservations or disagreement with regard to some of the proposals. Thus, Berndt stated that the proposed wage rates were unacceptable to the Union. Berndt also stated that Respondent's proposal "that the Company and the Union bargain on the individual availability of all employees presently on the seniority list for employment at Upland was acceptable" so long as "physical shortcomings" already in existence at the time of the closing of the Anderson plant and the "mental outlook and attitude" displayed by some employees since the beginning of the strike would not be used to prevent their employment at Upland. Berndt also pointed out that "it is the Union's prerogative to assign the Local Union number to any UAW bargaining agent" and Respondent "should not attempt to presume to tell the Union who [it] should send to the bargaining table." However, Berndt conceded it would be "somewhat shortsighted for the Union to assign an individual that would only result in stalemates rather then 298-668 0-69-8 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fruitful negotiations." Finally, Berndt suggested another meeting to settle their dispute. Respondent did not reply to Berndt's March 10 letter, and the Union made no further request for a meeting during the next 3 months. Communication between the parties was resumed on June 2, 1965, when Shetterly met Bradnick and Strutz at an unemployment compensation hearing in Anderson involving claims of the striking employees. During a recess, Shetterly suggested to Strutz that a meeting be arranged for the purpose of discussing (1) transfer rights and (2) pensions for employees who had reached retirement age during the strike. Strutz replied that he would be happy to meet with Shetterly any time the Federal mediator arranged a meeting. On June 15, 1965, Strutz and MacDonald met in the presence of a Federal mediator with Shetterly and members of the Union's pension committee. After the parties discussed and settled the matter of pensions, the mediator asked if there had been any further progress in negotiations between the Union and Respondent, and was informed that no meeting had taken place since the early part of the month. Shetterly declared that there were only about 75 employees in the picket line and that only about 50 percent of them would be interested in going to Upland. He then asked if the meeting could be continued to discuss transfer rights of Anderson employees. When Strutz inquired whether it was still Shetterly's position that any future meeting of the parties was contingent upon Strutz agreeing to discuss transfer rights, Shetterly replied that, although he would "not make it conditioned upon that," the topic of transfers was nevertheless what he wished to talk about. Strutz indicated he would arrange a meeting if Respondent decided to have one. On June 30, 1965, Shetterly at another unemployment compensation hearing again asked for a meeting to discuss the transfer of Anderson employees to the Upland plant. Strutz replied that a meeting would be arranged through the mediator if Respondent desired one. The unemployment compensation hearing held on August 17, 1965, provided the next occasion at which Strutz and Shetterly met and again restated their positions regarding transfers and recognition of the Union for Upland. Strutz stated that he would get in touch with the Federal mediator. Three days later, Shetterly wrote Strutz requesting a meeting concerning "the movement of the [Anderson] plant to Upland . . . ." Shetterly wrote that "there are no conditions attached to my request for a meeting, merely that we bargain concerning the transfer rights of the Anderson employees, recognition of our Union at the Upland plant and the terms, working 6 According to Strutz, Shetterly estimated that after eliminating certain employees who had reached retirement age, those who could not pass physical tests, and those who had obtained other conditions and wages" at the Upland plant. Upon receiving no reply to this and another letter written to Strutz on August 30, Shetterly on September 15 addressed his request for a meeting on transfer rights to Boren. Boren replied on September 17, taking the "position that under the law and the contract that expired on October 31, 1964, the employees at Anderson who continued on strike against the plant, have no rights concerning re-employment at the Company's Upland plant." Boren offered to meet with the Union but insisted that Respondent was not obligated to bargain "concerning transfer rights which do not exist." Shetterly's answer to Boren on September 28 suggested that a meeting be held during the week of October 11 or any other convenient date. This time Strutz replied on October 5, repeating Respondent's refusal to bargain concerning transfer rights and expressing a willingness to meet but not setting a date. Shetterly's letter of October 14 again requested a meeting to bargain about transfer rights. Strutz wrote on October 19, offering to meet and taking the position that "until such time as you may become the certified bargaining agent of our employees at Upland or at such time as we are convinced that you represent the majority of our employees at Upland, we can not consider your request for bargaining." Toward the end of November 1965, Strutz met with Shetterly and Roy Cantrell, assistant regional director of the UAW, in the Federal mediator's office. Shetterly noted that there were still about 40 people drawing strike benefits and that these employees, if physically capable of working, as well as some others who were working for another employer, would probably wish to take jobs at Uplands Shetterly proposed that (1) Anderson employees considered by the Company to be unable to perform their jobs should be given a physical examination at a competent medical clinic and approved or disapproved on the basis of comparison with normal persons of the same age; (2) other employees whose physical capacities were not in question should be given rights to jobs at Upland, bumping, when necessary, employees newly hired at Upland; (3) the International and Local 940 or some other UAW local selected by Upland employees should be recognized as the bargaining representative of the employees at Upland and a contract negotiated to cover wages and working conditions at that plant. Strutz suggested in reply that the parties use an independent arbitrator to determine through "objective standards" which employees should be offered jobs at Upland. After the meeting, Shetterly telephoned Strutz to inform him that the Union could not agree to his proposal. employment, only 40 to 50 employees would be interested in transferring to Upland PIERCE GOVERNOR CO. 101 A final meeting, which was attended by Strutz, Shetterly, Berndt , and Emil Mazey, secretary- treasurer of the UAW, was held on February 4, 1966, in Detroit , Michigan. No progress was made as the parties professed to be waiting for an offer from each other. It is clear ffom the foregoing that the parties, who had a long history of successful bargaining , dating back to 1941, concentrated on two basic issues at their meetings and in their correspondence from December 1964 to February 1966, namely, (1) transfer of Anderson employees and (2) recognition of the Union for the employees at the Upland plant . As noted above, these themes emerged at the meeting of December 16, 1964, when Respondent announced to the Union that it was contemplating moving from its "unsafe and unhealthful" plant in Anderson , Indiana , to a new location in Upland, Indiana. That Respondent was willing from the outset to discuss the subject of the effects of the move on Anderson employees and their transfer to Upland is evident from its proposal at the first meeting when this topic became an issue. Thus, as indicated above, Respondent stated on December 16, 1964, that , if it made the move to Upland, it would consider for transfer each Anderson employee who applied at the new plant, with seniority preserved for those hired. When Respondent met with Union Representative Shetterly on December 22 and 31, 1964, the parties again discussed the subject of transfer. Shetterly on both occasions requested from Respondent a "guarantee " to transfer all Anderson employees and Respondent explained why such a transfer would not be feasible and renewed its offer to consider Anderson applicants in the light of their qualifications for employment at Upland and to give severance pay to those not hired. The transfer issue continued to be a key subject of bargaining at the four meetings held between January 9 and 22, 1965. The Union insisted on discussing the transfer of each employee on the seniority list, but Respondent refused to do so on the ground that it did not at that time know how much business it would have at Upland and also that it was "ridiculous " to discuss the transfer of those Anderson employees who did not care to go to Upland. However, Respondent again offered to consider Anderson applicants and promised seniority to those hired and separation pay for those not taken on at Upland. The transfer issue was again fully explored by Respondent and the Union at the two bargaining sessions on January 26, 1964. It is significant that Union Representative Berndt, who stressed recognition of "some local of the UAW" for the Upland plant as the paramount issue, took the position that "the economic make-up " of the Upland area and its distance from Anderson made it ' The Procter & Gamble Manufacturing Company, 160 NLRB inadvisable to allow the transfer issue to "bog down" the negotiations . It is also noteworthy that Respondent's Representative Logan agreed that it was relatively academic further to discuss the transfer issue in view of Berndt's statement that very few of the Anderson employees had a desire to go to Upland. Despite Berndt's position that the transfer question was no longer a high priority issue, Respondent's continued attention to this subject was demonstrated by its letter of January 28, 1965, which, inter alia, set forth its willingness to bargain with the Union as to each individual on the Anderson seniority list for employment at Upland , taking into account their qualifications for the work , physical condition , mental outlook and attitude , absentee record , and job openings at Upland . Although Respondent , in the absence of a reply from the Union, reverted to its earlier position on transfers, the Union finally replied on March 10, 1965, when it declared Respondent's proposal generally acceptable but questioned some of the criteria set forth by Respondent. The parties engaged in intensive and hard bargaining at a series of meetings and through an exchange of correspondence for a 3-month period extending into March 1965 . It is plain that during that time they fully dealt with the transfer issue. Although Shetterly on two occasions in June 1965 requested that bargaining resume on transfer rights, Respondent took no steps to arrange a meeting for that purpose . However, when the parties did meet in mid-August of 1965 , they merely restated their well- defined positions developed at the many earlier meetings. While Respondent on September 17, 1965, wrote the Union that it had no obligation to bargain concerning transfer rights, Respondent did in fact thereafter discuss transfer rights and proposed that an arbitrator determine through the use of objective standards which employees should be offered jobs at Upland. We conclude on the basis of Respondent's conduct during frequent meetings and correspondence with the Union that Respondent met its obligation to bargain with the Union concerning the effects of the move to Upland on Anderson employees and their transfer to the new plant. Although many of these meetings and the exchange of a number of letters took place in the months prior to February 25, 1965, the first day of the 10(b) period, the positions taken during that time continued and were restated by Respondent and the Union subsequent to February 25, 1965. While the parties did not reach complete agreement on the transfer issue, the record shows that Respondent over a period of many months considered the Union's position , explained its own position , and made counterproposals as well as some concessions.' Although bargaining by both parties dwindled 334 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD considerably after March 1965, we regard that as an indication that bargaining was approaching an impasse when both parties became more or less frozen in their positions regarding transfers. Accord- ingly, in the circumstances of this case, we find, contrary to the Trial Examiner, that the General Counsel has not proved by a preponderance of the evidence that Respondent failed to bargain with respect to the effect on Anderson employees of the move to Upland. As noted above, the second basic issue frequently discussed by the parties was recognition of the Union for the Upland plant. The Trial Examiner found that the removal of the plant from Anderson to Upland, a distance of 32 miles, had no greater significance than a removal across the street and that the move therefore effected no substantial change in the status or obligation of Respondent toward its employees or the Union which was their bargaining representative. Accordingly, as already stated, the Trial Examiner held that Respondent was under an obligation to bargain with the Union concerning the terms and conditions of employment at the Upland plant. Respondent does not dispute the Trial Examiner's finding that it refused to recognize the Union as the representative of the Upland employees. It contends, however, that the Trial Examiner erred in finding such conduct unlawful by not taking into account this test for determining whether Respondent was under a duty to recognize the Union for the new plant: Would at least a majority of the Anderson employees have transferred to the new plant but for Respondent's failure to negotiate concerning the effects of the move?" We find merit in Respondent's argument. As we have found insufficient warrant for concluding that Respondent did not meet its obligation to bargain over the effects of the move, there can be no basis for attributing the failure of Anderson employees to transfer to Upland to any unfair labor practice on the part of Respondent. Moreover, it is clear from the record that at no time during the bargaining over the effects of the move did a majority of the production and maintenance employees represented by the Union at Anderson have an interest in transferring to Upland. Accordingly, we find, contrary to the Trial Examiner, that Respondent was under no obligation to bargain with the Union concerning terms and conditions of employment at the Upland plant. As noted above, the Trial Examiner also found that the economic strike, which commenced on November 6, 1964, was converted into an unfair labor practice strike by Respondent's refusal to bargain. As we have found that Respondent engaged in no conduct that violated Section 8(a)(5) of the Act, we conclude, contrary to the Trial Examiner, that such conversion did not take place at any time. In view of our conclusion that Respondent has not committed any of the unfair labor practices alleged by the General Counsel, we shall dismiss the complaint in its entirety. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed in its entirety. 8 Cooper Thermometer Company, 160 NLRB 1902 TRIAL EXAMINER'S DECISION SIDNEY D. GOLDBERG, Trial Examiner: In this proceeding, under Section 10(b) of the National Labor Relations Act, as amended (herein called the Act), the complaint' alleges that Respondent, in violation of Section 8(a)(5) and (1) of the Act, has failed and refused to bargain with the Charging Party (herein called UAW or the International), and its Local 940 (herein called the Local), as the joint collective-bargaining representative of its employees and has refused to bargain with them over the effect on such employees of the removal of Respondent's plant from Anderson, Indiana, to Upland, Indiana. Respondent answered, denying practically all the allegations of the complaint. A hearing on the issues so raised was held in Marion, Indiana, from February 28 to March 3, 1966, before Sidney D. Goldberg, duly designated as Trial Examiner herein, at which all parties were represented, afforded an opportunity to adduce evidence, cross-examine witnesses, and argue upon the law and facts. Briefs subsequently filed by the General Counsel and by counsel for Respondent have been considered. For the reasons hereinafter set forth in detail, I find that the International and the Local, jointly, were and are the collective-bargaining representative of Respondent's employees in an appropriate unit and that Respondent has unlawfully refused to bargain with them concerning wages, hours, and other conditions of employment and, specifically, over the effect on such employees of the transfer of Respondent's operations from Anderson to Upland. Upon the entire record in this proceedingz and the demeanor of the witnesses, I make the following: FINDINGS OF FACT 1. THE EMPLOYER Respondent has been engaged for many years, formerly at Anderson and now at Upland, Indiana, in the manufacture and sale of automotive parts. Between 1957 and 1964, it was also the parent company in a complex of corporations but its manufacturing operation has continued unchanged for many years. It admits that, during the calendar year 1965, it imported materials valued at more than $50,000 and that it is engaged in commerce within the meaning of the Act. I so find. ' Issued December 21, 1965, on a charge filed August 25, 1965, and an amended charge filed September 28, 1965 2 The following typographical errors in the transcript are hereby corrected On p 11,1 9, the word " not" is changed to read "now" and on p 24,1 6, the word "provides" is inserted following the word "statute " PIERCE GOVERNOR CO. 103 It. THE LABOR ORGANIZATIONS INVOLVED In 1941 the International was certified, by the Board's Regional Director for Region 11, as the "exclusive bargaining agency" of Respondent's production and maintenance employees.3 Since that time there have been collective-bargaining contracts continuously in effect between Respondent, as employer, and the International and its Local 940, jointly (herein called the Union), as the "exclusive bargaining agency" for the employees, the last one having expired October 30, 1964. Subsequent to that date and well into 1965, Respondent carried on negotiations for a collective-bargaining contract with the Union. I find that the Union, as well as the International and the Local, are labor organizations within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Background and Chronology 1. Introductory Despite the volume of testimony herein-much of it pertaining to matters not truly in issue-the relevant facts of this case are not seriously in dispute . In view of the fact that the original charge herein was filed on August 25, 1965, any findings of unfair labor practices on the basis of Respondent's activities are limited , by Section 10(b) of the Act, to those which occurred on or after February 25, 1965, and the substantial amount of material in the record which deals with occurrences prior to February 25, 1965, was offered-and can be considered-only "to shed light on the true characters of matters" occurring subsequent to that date .4 There is also, unfortunately , a substantial amount of additional material in the record which deals with matters not in issue , either because they are not presented by the pleadings or because the matters themselves were never disputed. 2. Background As stated, the Union was certified in 1941 and there were contracts between Respondent, as employer, and the Union, as the representative of the employees, in effect until October 30, 1964, when the last one was terminated by timely notice.5 Bargaining , which had-commenced prior to the terminal date of the contract, continued without satisfactory progress and, on November 6, 1964, the Union declared a strike, posting pickets at the plant, which was then still at Anderson. This strike was, at its inception, admittedly an economic strike and it was, at the time of the hearing of this proceeding, still in effect. 3. Chronology Although the course of Respondent's bargaining with the Union and the process of its removal of its plant from Anderson to Upland have separate chronologies and could be separately stated, they are contrapuntal in effect and such separate statements would, therefore, inadequately show their interrelation. The plant at Anderson consisted of a group of about six buildings, the oldest part of which had been built about 1900. Its dilapidated condition was notorious, so much so that one of the Union's key demands were a contract recognition of its right to strike over conditions of health and safety in the plant .", During the bargaining sessions in December 1964, references were made to the possibility that Respondent would construct a new plant, not necessarily at Anderson. At the negotiating meeting of December 16, 1964, part of which was taken down verbatim by a reporter, Respondent's chief negotiator, Donald F. Strutz, opened by stating that the Union's bargaining committee had brought the Company's attention to "the terrible defects of the plant including the odor problem, the heating problem, the leaking roof and the defective wiring and plumbing."7 He stated that several communities had made offers to induce Respondent to move into them and that such offers had been given consideration. He noted that Upland, Indiana, within 40 miles from Anderson, had made the most attractive offer and that Respondent had concluded that it would be "economically advantageous" to move there. He suggested that the parties "temporarily discontinue negotiations on the new labor agreement to permit us to spend as much time as is required to negotiate fully the possibility of the Company making such a move." He also stated that "should such a move be made, each employee will be given full consideration for reemployment if he presents himself to the new plant and if hired, will retain his full seniority." With respect to recognition of the Union as the collective-bargaining representative of the employees at Upland, however, he stated that such recognition would be dependent upon proof of such representation. The Union's spokesman, International Representative Ray Shetterly, expressed surprise at the Company's announcement, stating that he had supposed they were bargaining for a contract at the Anderson plant to take the place of the one which had expired, and he called for a recess to discuss this new development with his bargaining committee. After the recess, the meeting resumed without the reporter. Shetterly made it clear that the Union wished to bargain for an agreement on two subjects: (1) the operation of the plant at Anderson as long as it remained there and (2) the effect on the employees of S Case XI- R-486. The unit is described as follows: All production and maintenance employees excluding foremen , assistant foremen , superintendents, confidential, salaried , clerks, office and drafting room employees. " Local Lodge No. 1424, I.A.M. (Bryan Manufacturing Co.) v. N.L.R.B., 362 U.S. 411, 416. 5 The contract which terminated October 30, 1964, described the unit as: . all the Company' s employees , except foremen, assistant foremen, superintendents, confidential salaried office, Test Room , and Engineering Department employees, plant guards, and clerks,... This unit, I find, was and is an appropriate unit for the purpose of collective bargaining. N It was stipulated that, as of September 1, 1964. the physical condition of the plant at Anderson, Indiana, had deteriorated to a point where the continued operation without proper repair and remodeling created unsafe and unhealthful working conditions which the Union requested be remedied. This resulted in the Union demand that a failure to repair the unsafe conditions of the plant within twelve days' notice thereof would become the subject of a right to strike, health and safety grievances for the duration of the proposed labor agreement . That such strike must be approved by the Regional Director of the UAW-CIO." 7 The accuracy of the written report is not questioned by any party herein. 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a transfer of the Company's operations to any other community. Respondent then stated the terms of a contract it would sign covering the interim operation of the Anderson plant. These included the right to terminate such agreement on 30 days' notice of the Company's election to locate its plant outside Anderson and the removal of any restrictions on subcontracting, avowedly "to facilitate removal of plant." Several meetings were held, later in December and through January, without significant progress, although the parties went to the extent of "changing faces" on both sides of the table in an effort to ease the rigidities rooted in personal antagonisms between the principal negotiators on both sides." Bargaining on the subject of an interim contract continued, without success, until it became academic by Respondent's removal of the plant to Upland. Toward the end of December 1964, Respondent ceased its efforts to carry on production in the face of the strike and shutdown of the Anderson plant. About the same time, it completed its arrangements for relocating at Upland and let a contract for construction of a new building there. Pending completion of the new building, Respondent began production in rented quarters at Upland, using supervisory personnel. During the month of January 1965, the first of those in the clerical and supervisory force of Respondent who were willing to move to Upland, did so and by July all of these-about 85 percent of that force at Anderson-had made the move. Transfer of normal production to Upland was slower. The order to begin construction was given on December 31, 1964, and work on the foundation actually began on January 4, 1965, but Respondent was not able to move into the building until April. The first few production employees at Upland were hired during February and it was estimated that, at the end of April, Respondent still had fewer than 100 employees there. This number increased slowly through May and June and, it was stipulated, the number of production employees in the Upland plant during the week prior to July 4 was something under 153. It was also stipulated that this number continued to move upward until it reached 212 at the end of August and that there have been in the plant at all times since August 1, at least 190 production and maintenance employees. Only one of the production employees who worked at the plant at Anderson-and that one hired after the strike began-has worked at the plant at Upland. One of the January meetings, that on the 26th, was held in the office of the Federal mediator in Indianapolis. Respondent was represented by its president, Leland E. Boren, its vice president for labor relations, Leroy V. Bradnick, and its "corporate" counsel, Thomas D. Logan.9 The Union was represented by Shetterly and by Raymond H. Berndt, the regional director of UAW's Region 3. After a fruitless morning discussion, Logan and Berndt met alone in Berndt's office in the afternoon. Logan testified that he told Berndt that he had no authority to bind Respondent and had been at the meeting only because Strutz was in Florida. Logan pointed out the conditions at Upland were not the same as at Anderson and Berndt gave him a copy of a contract between UAW and another employer so that he could become familiar with its general contents. Two days later, after conferring with Respondent's officials, Logan wrote Berndt a six-page letter, practically all of which consisted of a statement of "the principles generally acceptable" to Respondent. One of these "principles" consisted of a proposed contract provision entitled "Seniority," which set forth, in detail, job titles, groupings of employees, entry rates of pay, and the automatic increases that would be effective after 60 and 90 days, respectively. At its beginning, this letter from Logan referred to the recent meeting of the parties and it then continued as follows: ... As I indicated then, I want to preface our communications with a restatement of our position. That we are not obligated to recognize Local 940 and are unwilling to recognize them for any purposes pertaining to employment at any location other than that at Anderson. However, we are willing to discuss the possibility of being able to enter into an agreement with some union at the Upland location. If we could arrive at some agreement with you, I think we would be willing to make that applicable to whatever local you think best and recognize as much as we can the equities of employees who have been employed at the Anderson plant. The letter closed with the following: ... Thanks again very much for the meeting of yesterday, I am willing to formulate a complete contract if these thoughts are consistent basically with yours. Again the Company has cautioned me to say that they are not willing to recognize Mr. Shetterly and his bargaining committee to arrive at any conclusion about Upland, but they will look favorably upon a contract with United Auto Workers if that can be suitably arranged between them. It seems to me that you might then propose a formal contract which I promise to take up immediately with the Board and give you a report. Berndt did not answer until February 15, but he explained that he had been ill and stated that he hoped, within the next few days, to comment on Logan's letter of January 26, "point by point" and to advise him further "with respect to the basic suggestions ... relative to UAW recognition" at the Upland plant. On March 9, Logan again wrote to Berndt, noting that 6 weeks had passed since his letter of January 28 and that Berndt had not written as he had promised in his letter of February 15. "Accordingly," Logan's letter stated, "I am instructed by my client to withdraw the suggestions made in said letter and to revert to our former position." The 8 The documentary evidence clearly shows an unfortunate tendency, on both sides, to permit themselves to be diverted from the main problem and to quibble and quarrel over matters irrelevant to it. Moreover, both the documents and the testimony herein indicate that one of Respondent's major efforts in connection with the contract negotiations was to eliminate the necessity of dealing with International Representative Shetterly and the members of the negotiating committee 8 Mr Logan is a member of the law firm which represents Respondent Its name was, at that time, Rothberg, Gallmeyer, Strutz, Fruechtemcht & Logan and its senior partner, Sol Rothberg, was a member of Respondent's board of directors Donald F Strutz was also a member of the firm at that time but he thereafter severed his association with it, continuing, however, to act as "labor counsel " for Respondent PIERCE GOVERNOR CO. 105 following day, Berndt telegraphed Logan, stating that his detailed answer had already been prepared and would be in the mail by noon. Berndt' s letter indicated acceptance, at least in principle, of most of Respondent's proposals. He pointed out, however, that the proposed wage rates were "unacceptable" to the Union and noted that it was the prerogative of the International both to designate the local that would cover specific bargaining units and to assign the representatives it thought best to assist such locals. He suggested that they meet in an effort to settle the dispute. With these letters, communication between Logan and Berndt appears to have terminated. During the month of June 1965, representatives of the Union and Respondent met at a hearing involving the unemployment insurance benefits of the striking employees. They discussed and settled questions concerning retired employees and talked briefly about the status of the Union and of the strike. Shetterly restated the Union's position: that the striking employees were still the employees of the Company; 10 that Local 940 was their only representative;11 and that all of those willing to go to Upland should be offered employment there. Shetterly also said that if the Company had questions about the physical capacity of some of the employees to perform their work, those questions should be resolved through examination by an independent medical clinic. Strutz countered by pointing out that there were some employees who had been considered "substandard" at Anderson because they either could not or would not produce a reasonable day's work; he agreed that there should be some objective standards for determining which of these should be offered jobs at Upland and he suggested that it be done through an independent arbitrator. Shetterly promised to discuss this with his superiors.12 They also discussed the probable number of striking employees who would desire employment at Upland and they "guessed" that, after eliminating those who had reached retirement age, those who could not pass physical tests, and those who had obtained other satisfactory employment, only 40 or 50 would go to Upland. Representatives of the parties again met about August 17 in connection with the unemployment compensation hearing and again they also discussed the controversy between them. As a result, Shetterly wrote Strutz asking for a meeting to bargain concerning the transfer rights of the striking employees and recognition of the Union at the Upland plant . There was no answer to this letter and, after a second letter was ignored, Shetterly wrote on September 15 to President Boren, requesting a meeting. Boren answered his letter, dated September 17, stating in part: It is our position that under the law and the contract which expired October 31, 1964, the employees at Anderson who continue on strike against the plant, have no rights concerning re-employment at the Company's Upland plant. He offered to meet with the Union but insisted that Respondent was not obligated to bargain "concerning transfer rights which do not exist." Shetterly's reply suggested that a meeting be held during the week of October 11, or any other convenient date. This time Strutz answered: he did not fix a date for meeting but restated Respondent's refusal to bargain concerning transfer rights. A subsequent letter from Shetterly again requesting a meeting to bargain about transfer rights was again answered by a letter from Strutz offering to meet at any time but not stating the subject of such meeting. This letter also stated: Again please permit me to state the Company's position concerning bargaining for its employees at Upland, Indiana. Until such time as you may become the certified bargaining agent of our employees at Upland or at such time as we are convinced that you represent the majority of our employees at Upland, we cannot consider your request for bargaining. Just prior to Thanksgiving 1965, Strutz met with Shetterly and Roy Cantrell, assistant regional director of the UAW, in the Federal mediator's office at Indianapolis. They discussed the strike situation at Anderson and Shetterly noted that there were still about 40 people drawing strike benefits and that these employees, if physically capable of working, as well as some of those who were working in Muncie,13 would probably wish to take jobs at Upland. Shetterly then proposed that: (1) with respect to those employees of the Anderson plant claimed by Respondent to be unable to perform their jobs, physical examinations be conducted by a competent medical clinic in Indianapolis and the employees be approved or disapproved on the basis of comparison with normal persons of their same age; (2) with respect to the other employees, whose physical capacities were not in question, they be given rights to jobs at Upland, "bumping," where necessary, others hired there; and (3) the UAW be recognized as the collective-bargaining representative of the employees at Upland and a contract be negotiated with it to cover wages and working conditions. Shetterly assured Strutz that it was not essential that Local 940, as an entity, continue to be, at Upland, the "local" part of the joint representative of the employees there but that, after an agreement had been reached with the International covering the Upland plant, a new local could be established and an election scheduled at which the Upland employees could select their own bargaining committee. A final meeting was held in February 1966, at which the spokesmen for each of the parties professed to be waiting for an offer from the other. No further meetings had been held prior to the hearing of this proceeding. B. Discussion and Conclusions 1. The issues Although the facts in this case are undisputed, there is a large amount of evidence in the record that is immaterial-either because its subject was never in 10 At the unemployment compensation hearing, Vice President Bradnick testified that at the end of March the striking employees could have resumed work at the Anderson plant since almost all of the machinery was still intact and in place. 11 There is nothing to suggest that Shetterly meant to imply that there was a distinction between Local 940 and the joint local- International representative that is referred to herein as the Union. 12 Shetterly subsequently telephoned Strutz and stated that, if the Company insisted that some employees meet "objective" standards as determined by an arbitrator before they could have transfer rights, the Union could not agree. O1 About 20 miles northeast of Anderson. Upland is about 32 miles north-northeast of Anderson. 106 DECISIONS OF NATIONAL dispute or because it was not presented by the pleadings-and an additional amount of evidence which, when the basic issues in this case are delineated, may be found to be immaterial to them. The major causes for the confused and encumbered condition of the record are, in my opinion, the General Counsel's preoccupation with "background" evidence not necessary to this case'" and Respondent's efforts to litigate matters that are neither disputed nor issues herein.15 The complaint, after setting forth background matter designed to show bad-faith bargaining by Respondent during the period prior to the 10(b) date, alleges that, since February 25, 1965, Respondent has refused to bargain with the Union as the collective- bargaining representative of its plant employees (1) concerning wages, hours, and other terms and conditions of employment and (2) concerning the effect on its employees of the removal of the plant from Anderson to Upland. Whether Respondent's conduct constitutes a refusal to bargain in these broad terms is, I am convinced, the basic issue herein and, while there are several narrower questions presented, they are subsidiary to the main one. 2. Discussion At the commencement of consideration of this case, certain undisputed facts must be noted: (1) except for the removal of its plant location from Anderson to Upland, there has been no change in Respondent's business: its corporate status, its ownership, its top management, its clerical and supervisory personnel are all unchanged and its product is precisely the same; (2) the new location of the plant, at Upland, is about 32 miles from Anderson through relatively open countryside with no large settlements or obstacles but with several paved roads between them16 and, therefore, both locations are within the same general community. On the basis of these facts, it seems clear that the removal of the plant from Anderson to Upland had no greater significance, in this context, than would have had its removal across the street and, therefore, that the move effected no substantial change in the status or obligation of Respondent toward its employees or their bargaining representative, the Union." Respondent's position with respect to recognition of the Union as the joint collective-bargaining representative of 1" As shown below, Respondent's good faith, or lack thereof, is irrelevant. 1$ Despite Respondent's attempts, both during the course of the bargaining and in this proceeding, to turn to its advantage the concededly dilapidated condition of the plant by endeavoring to make an issue of the necessity to move, the Union waived its right to bargain on this subject and the lack of bargaining thereon is not an issue herein. 'S The absence of large settlements and existence of paved roads are judicially noticed on the basis of the 1965-1966 map of the Indiana Highway Commission . In addition to the one or more paved reads that are fairly direct, Interstate Highway 69, an access-controlled , multilane, divided highway , has an access point less than 5 miles from Anderson and another, about 25 miles north, less than 3 miles from Upland. 17 In International Paper Company, 150 NLRB 1252, the employer moved certain of its operations from one of its plants, located on the south side of St. Louis, to another one which was located on the north side of the same city. The Board adopted the Trial Examiner's findings, based in part upon the fact that both plants are in the same metropolitan area , that the employer's refusal to recognize, for certain employees at the north plant, the LABOR RELATIONS BOARD its employees, both those formerly at Anderson and those subsequently employed at Upland, is not completely clear on the record. While Boren's letter of September 17, 1965, states: It is our position that under the law and the contract which expired October 31, 1964, the employees at Anderson who continue on strike against the plant, have no rights concerning re-employment at the Company's Upland plant .... Logan's letter dated January 28 and March 9, 1965, stated that Respondent was "not obligated to recognize Local 940 and is unwilling to recognize them for any purpose pertaining to employment at any other location other than Anderson."18 Respondent's brief, in listing the issues believed to be raised by the pleadings and evidence herein, includes the following: 5. Is the Company legally obligated to recognize either the International Union or its Local 940 at Anderson, Indiana, or both of them, as the exclusive collective bargaining representative for its production and maintenance workers at Upland, Indiana, without a prior representation election to enable its Upland employees to select a representative of their own choosing. and the recommended answer to this question is stated in the negative because, according to its brief, Respondent offered-and the Union refused-to bargain the question of plant removal. 3. Conclusions Whether stated as a denial of transfer rights to its Anderson employees, a refusal to recognize Local 940 for any purpose other than as the representative of the "Anderson" employees or a refusal to bargain with "Mr. Shetterly and his bargaining committee," it is clear that Respondent has refused, and continues to refuse, to bargain with the Union as the collective-bargaining representative of its production and maintenance employees. But on November 6, 1964, when the Union went on strike in support of its efforts to obtain a satisfactory contract, all of the 186 permanent employees in the unit were members of Local 940. From the beginning of discussions involving a new plant, however, Respondent took the position that at any new location it would refuse to union which had represented them at the south plant , violated Sec. 8(a)(5) of the Act. To the same effect, see: Jack Lewis, et al. d/b/a California Footwear Company, 114 NLRB 765, enfd. as modified in other respects 246 F.2d 886 (C.A. 9), in which removal of the employer's plant from downtown Los Angeles to Venice, a part of the same city about 12 miles away, was held not to affect its obligations; Rapid Bindery, Inc., 127 NLRB 212, enfd. as modified in other respects 293 F.2d 170 W.A. 2), in which the employer's transfer of operations from Dunkirk, New York, 44 miles south of Buffalo, to Tonawanda, New York, about 10 miles north of Buffalo, was also held not to affect its obligation; N.L.R.B. v. Storack Corporation, 357 F.2d 893 (C.A. 7). in which the court of appeals, enforcing the Board's bargaining order (147 NLRB 493), declined to give any weight to the employer's removal of its plant from Evanston , Illinois, to the southern part of Chicago, a distance of between 25 and 35 miles. 18 Another version of Respondent's position is the statement, also set forth in Logan's letter of January 28, 1965, that "the Company ... are not willing to recognize Mr. Shetterly and his bargaining committee to arrive at any conclusion about Upland.... .. PIERCE GOVERNOR CO. 107 recognize Local 940 as a segment of the joint local- International representative which had long been the chosen collective-bargaining representative of its employees. According to the uncontradicted testimony of Bradnick, this position was first stated by Strutz at the bargaining conference on December 16, 1964, when the probable removal of the plant was first openly discussed, it was repeated by Strutz at the meeting of January 6, 1965, and again stated by Logan at the meeting on January 26, 1965. Finally, Logan's letter of January 28, 1965, quoted above, sets forth Respondent's refusal to recognize Local 940 as an unchangeable element in its position' 9 and it is clear from the record that this refusal continued unabated down to the time of the hearing. I am unable to find, either in the record or in Respondent's brief, an intelligible argument in support of this position. This position was and is, in my opinion, unjustifiable. While it was the International which was certified in 1941 by the Board, there is no obstacle to the joint representation of employees in an appropriate unit by more than one labor organization, 20 and it is clear that it was Local 940 to which, it was stipulated, all of the employees in the unit belonged. Accordingly, on the basis of the International's certification and continuous representation of Respondent's employees and on the basis of Local 940's status as the continuous representa- tive and the designee by. membership of these same employees, it is clear that the International and the Local constituted the single, joint representative of the employees2' and Respondent's effort to sever the Local from the International cannot succeed. Respondent has been, and is, obligated to bargain with them in the form which has been chosen by the employees,22 notwithstanding the termination of the previous contract23 or the commencement and pendency of the strike.24 The specific subjects, however, upon which bargaining was necessary (within the general area of "wages, hours, and other terms and conditions of employment" set forth in Sec. 8(d) of the Act), varied during the course of the period here involved, depending upon changes in circumstances. During the period from the start of the strike (actually, from this time of notification of termination of the previously existing contract), until about December 16, 1964, the subject of bargaining was, generally speaking, the terms of a contract covering employment at the Anderson plant. Beginning about December 16, 1964, however, when Respondent first clearly stated that removal of the plant was under serious consideration, proper subjects of bargaining included: (1) whether the plant should be moved; (2) the terms of an interim contract covering operation of the Anderson plant pending final decision on such removal; and (3) the effect on the employees of such removal, if accomplished. With Respondent's definite decision, at the end of 1964, to terminate its operations at Anderson and move to Upland, any further discussion with the Union over whether the plant should be moved or concerning the terms of an interim contract at Anderson became futile but Respondent's basic obligation to bargain with the Union remained unaffected by the decision since, as set forth above, both the operation of the Company and its location remained relatively unchanged. But with the change in circumstances resulting from the decision to move, the aspects of Respondent's obligation to bargain which became paramount during the period which began with 1965 were those concerned with: (1) the terms and conditions of employment at Upland and (2) the effects of the plant removal on the employees. These are the matters upon which the Union has continuously insisted that negotiations be held and upon which Respondent, by insisting that it will not negotiate in any manner with Local 940, has precluded such negotiations. It is clear, therefore, on this record that Respondent, by continuously refusing to recognize and bargain with Local 940 as an integral part of the bargaining agent of its employees, has violated Section 8(a)(5) of the Act by its refusal to recognize and bargain with the joint bargaining representative which it was required by the Act to recognize.25 The question of good faith, moreover, is irrelevant in this case since the duty to bargain herein arises out of the undisputed relationship between the parties and the subjects upon which the Union has sought to bargain-and the Respondent has refused-are clearly mandatory subjects of bargaining.26 Moreover, Respondent's continued refusal to discuss the treatment to be accorded employees adversely affected by the removal of the plant to Upland was, in itself, a violation of Section 8(a)(5) of the Act.27 Although these refusals to bargain began prior to February 25, 1965, any finding of violation of the Act herein must be based upon activities subsequent to that date. Accordingly, I find that Respondent's unfair labor practices in violation of Section 8(a)(5) of the Act commenced on February 25, 1965, and have continued since that date. Respondent's unalterable refusal to recognize Local 940, in any meaningful way, as an integral element of the collective-bargaining representative of its employees has been, I find, the principal obstruction to bargaining since February 25, 1965. Its unlawful conduct has been the major impediment to bargaining and has thereby largely contributed to the continuation of the strike. Accordingly, since February 25, 1965, the strike of Respondent's employees has been an unfair labor practice strike,28 and the employees who had not been theretofore permanently replaced have retained their status as employees and their 19 This refusal, of course, was not one of the "suggestions" which was "withdrawn" by Logan's letter of March 9, 1965, and in subsequent conferences Respondent made clear its continued refusal to recognize Local 940. 21 General Motors Corporation, 67 NLRB 233. 21 The article of the 1961-1964 contract entitled "recognition" designates Local 940 and the International as "the exclusive bargaining agency" for Respondent's employees in the described unit. 22 The Ingalls Shipbuilding Corporation, 143 NLRB 712. 2' Winn-Dixie Stores, Inc., 147 NLRB 788, enfd. as modified 361 F.2d 512 (C.A. 5). 24 Pecheur Lozenge Co., Inc., 98 NLRB 496, enfd. as modified 209 F.2d 393, 403 (C.A. 2), cert. denied 347 U.S. 953. 25 Even if Respondent's conduct had been confined to an effort to rid itself of Shetterly and the negotiating committee, such conduct would constitute violation of Section 8(a)(5) of the Act (American Radiator & Standard Sanitary Corporation, 155 NLRB 736). 211 N.L.R.B. v. Katz, 369 U.S. 736. 27 Rapid Bindery, Inc., supra; Royal Plating and Polishing Co., Inc., 160 NLRB 990. 28 The Philip Carey Mfg. Co., 140 NLRB 1103, 1105-06 enfd. on this point 331 F.2d 720 (C.A. 6). 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD right to reinstatement upon their unconditional application to return to work.29 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes, burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It having been found herein that Respondent has engaged in and is engaging in unfair labor practices, it will be recommended that it cease and desist therefrom and that it take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that the Respondent, upon request, bargain collectively with the Union as such representative and, if an understanding is reached, embody such understanding in a signed agreement. Having found that the strike, which commenced as an economic work stoppage on November 6, 1964, was converted into an unfair labor practice strike on February 25, 1965, by Respondent's unlawful refusal to bargain with the Union and was thereafter prolonged by Respondent's unfair labor practices, and having found that the employees who went on strike and after February 25, 1965, became unfair labor practice strikers as a consequence thereof, I will recommend that Respondent, upon application, offer them reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any person hired after the latter date, and make these employees whole for any loss of pay they may suffer as a result of Respondent's refusal to reinstate them upon such application. Upon the foregoing findings of fact, and upon the entire record herein, I reach the following: CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 940 and the International are labor organizations within the meaning of Section 2(5) of the Act. 3. The Union, consisting of Local 940 and the International, acting jointly, is a labor organization within the meaning of Section 2(5) of the Act. 4. All of Respondent's employees, except foremen, assistant foremen, superintendents, confidential salaried office, test room, and engineering department employees, plant guards and clerks, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times since February 25, 1965, the Union has been the representative, for collective-bargaining purposes, of Respondent's employees in the unit above described. 6. By failing and refusing to bargain with the Union on and after February 25, 1965, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act and has thereby interfered with, restrained, and coerced employees in the rights guaranteed them in Section 7 of the Act in violation of Section 8(a)(1) thereof. 7. By engaging in the aforementioned unfair labor practices, the Respondent converted the Union's economic strike into an unfair labor practice strike on February 25, 1965, in consequence of which the employees who were on strike on and after that date retained their status as employees and have continued to be entitled to reinstatement, upon application, to their former or substantially equivalent positions in preference to all employees hired since that date. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that The Pierce Governor Company, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing, upon request, to bargain with International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and Local Union No. 940 thereof, acting jointly, as the collective-bargaining representative of its employees in the unit described as follows: All employees, except foremen, assistant foremen, superintendents, confidential salaried office, test room, and engineering department employees, plant guards and clerks. (b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain with International Union, United Automobile, Aerospace and Agricultural Imple- ment Workers of America, AFL-CIO, and Local Union No. 940 thereof, jointly, as the collective-bargaining representative of its employees in the appropriate unit described above with respect to rates of pay, hours of employment, and other terms and conditions of employ- ment and with respect to the effect upon the employees 29 Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270, 278; The Philip Carey Mfg. Co., supra; Hawaii Meat Company, Ltd., 139 NLRB 966. PIERCE GOVERNOR CO. 109 in the unit of the removal of its plant from Anderson to Upland and, if an agreement is reached , embody such agreement in a signed contract. (b) Upon their unconditional offer to return to work, reinstate all employees in the unit who were on strike on and after February 25, 1965, to their former or substantially equivalent positions , without prejudice to their seniority and other rights and privileges , discharging, if necessary to effect such reinstatement , persons employed subsequent to that date and make each such employee whole for any loss of pay he may suffer as a result of its refusal to reinstate him upon such application. The backpay, if any, will be computed on a quarterly basis in the manner set forth in F. W. Woolworth Company, 90 NLRB 289 , with interest thereon at 6 percent per annum, as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. (c) Notify any and all employees in the aforesaid unit who were on strike against it on and after February 25, 1965, and who are now serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents , for examination and copying, all payroll records, social security payment records, timecards , personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (e) Post at its plant at Upland , Indiana, copies of the attached notice marked "Appendix."30 Copies of said notice, to be furnished by the Regional Director for Region 25, after being signed by its representative, shall be posted 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 to insure that said notices are not altered, defaced, or covered by any material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from receipt of this Decision, what steps it has taken to comply herewith.31 30 In the event that this Recommended Order is adopted by the Board , the words "a Decision and Order " shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board 's Order is enforced by a decree of a United States Court of Appeals , the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order " 11 In the event that this Recommended Order is adopted by the Board , this provision shall be modified to read "Notify the Regional Director for Region 25, in writing , within 10 days from the date of this Order, what steps 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 Relations Act, as amended, we hereby notify our employees that: International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its Local Union No. 940, acting jointly as a labor organization , is the exclusive collective- bargaining representative of our employees in the unit which is described as follows: All employees , except foremen , assistant foremen , superintendents , confidential salaried office, test room, and engineering department employees , plant guards and clerks. WE WILL NOT refuse, upon request , to bargain collectively with the aforesaid labor organization as the exclusive representative of our employees in the said unit concerning (1) wages, hours, and terms and conditions of employment , (2) the effect on our employees in the said unit of the recent removal of our plant from Anderson to Upland ; and, if agreement is reached , we will embody such agreement in a signed contract. WE WILL NOT , by refusing to bargain with the said labor organization concerning the aforesaid matters, or in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form labor organizations, to join or assist the above -named labor organization or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL, upon their unconditional offer to return to work, reinstate to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , all our employees in the said unit who have been on strike on and after February 25, 1965, and WE WILL, if necessary to accomplish this, dismiss persons hired since that date. All our employees are free to join , or remain members of, International Union , United Automobile , Aerospace and Agricultural Implement Workers of America, AFL-CIO, and its Local Union No. 940 , or any other labor organization , or to refrain from joining or remaining members thereof. THE PIERCE GOVERNOR COMPANY, INC. (Employer) Dated By (Representative ) (Title) Note: We will notify any of the above-described employees if presently serving in the Armed Forces of the United States of his or her right to full reinstatement 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. 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, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 633-8921.