ITT Henze Valve Service

592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ITT Henze Valve Service, Controls and Instruments Division, International Telephone and Telegraph Corporation and United Steelworkers of America, AFL-CIO. Case 12-CA-3505 June 30, 1967 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On April 12, 1967, Trial Examiner Owsley Vose issued his Decision in the above-entitled proceed- ing, finding that Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirma- tive action, as set forth in the attached Trial Ex- aminer's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional 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 brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. i ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, and orders that the Respondent, ITT Henze Valve Service, Controls and Instruments Division, International Telephone and Telegraph Corporation, Jackson- ville, Florida, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed insofar as it alleges viola- tions other than those found by the Trial Examiner. ' Respondent contends in its exceptions that the Trial Examiner's presentation and evaluation of the evidence show prejudice against Respondent. On the basis of a careful review of the record, we find that Respondent's allegation of prejudice on the part of the Trial Examiner is completely without merit TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE OWSLEY VOSE, Trial Examiner: This case heard in Jacksonville, Florida, on November 29-December 2 and December 7-9, 1966, pursuant to charges filed on the preceding April 28, May 20, and June 29, 1966, and a complaint issued on September 29, 1966, presents the following questions: (1) whether the Respondent (hereinafter called the Company), refused to bargain col- lectively with the Charging Party (hereinafter called the Union), the certified bargaining representative of its em- ployees, in violation of Section 8(a)(5) and (1) of the Act; (2) whether John Gill, the Company's plant manager, made statements to employees which interfered with, restrained, or coerced the Company's employees in viola- tion of Section 8(a)(1) of the Act; (3) whether the aforesaid alleged unfair labor practices caused the Com- pany's employees to go out on strike; and (4) whether the Company terminated certain strikers and refused to rein- state two others in violation of Section 8(a)(3) and (1) of the Act. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs filed by the Company and the Charging Party,' I make the following: FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE COMPANY The Company, which is engaged in the business of repairing and servicing of valves in the southeastern part of the United States, operates out of its plant in Jackson- ville, Florida. Admittedly, in the year preceding the is- suance of the complaint the Company received in excess of $50,000 for services (including the value of parts) per- formed outside the State of Florida. Upon these facts, I find that the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction In my opinion it will be helpful in resolving the issues raised by the complaint and answers in this case if I set forth at the outset the entire sequence of the principal events in this case. In the bargaining meetings, Oakley H. Mills, a representative of the Union, was normally the spokesman for the Union's bargaining committee, which consisted of three employees of the Company, in addition to Mills. The Company's principal spokesman throughout the negotiations was Clyde N. Wells, Jr., the Company's I Although I repeatedly requested counsel for the General Counsel to file a brief and specified, in part, the matters which I desired to have discussed, the General Counsel failed to file a brief in this proceeding 166 NLRB No. 65 ITT HENZE VALVE SERVICE 593 attorney. In the bargaining meetings, with rare excep- tions, Attorney Wells was accompanied by John J. Gill, plant manager, and Robert Bortnik, the Company's re- gional sales manager. B. Sequence of events January 3, 1966: The Union files with the Board a peti- tion for certification as the exclusive bargaining represent- ative of all the Company's production and maintenance employees, including truckdrivers and installation ser- vicemen January 17, 1966: The Union and the Company sign a stipulation for certification upon consent election provid- ing for an election to be conducted by the Board on February 16, 1966, among the above-named categories of employees. January 27, 1966: The Company's propaganda cam- paign against the Union begins. February 14, 1966: The Company sends its final preelection letter to its employees. February 16, 1966: The Union wins the consent elec- tion, 20 to 1. February 25, 1966: The Regional Director issues his certification of representative stating that the Union is the exclusive bargaining representative of the Company's employees in the appropriate unit. March 4, 1966: First bargaining meeting. The Union submits a proposed contract and explains its provisions. The Union acquiesces in the Company's request that noneconomic matters be considered first. March 16, 1966: Second bargaining meeting. The Company presents counterproposals on noneconomic matters and explains them. The Union objects strongly to the absence of any proposal concerning the checkoff of union dues and threatens a strike. March 17, 1966 (Approx.): Pursuant to instructions from Union Representative Mills, the employees com- mence ceasing to work overtime. Although the ac- ceptance of overtime work was optional, normally the Company had no problem in obtaining sufficient volun- teers to get its work out. March 21, 1966: Third bargaining meeting. The parties discuss provisions dealing with the following: recognition, nondiscrimination, seniority, and grievance procedure. The Union stresses its proposals and the Company urges that the parties concentrate on its coun- terproposals. March 22, 1966: Pursuant to instructions from Union Representative Mills, two of the three employee mem- bers of the Union's bargaining committee fail to report for work and, on the next day upon reporting for work, give as the excuse for their absence that they had been engag- ing in union business. March 22, 1966: The Company posts a notice stating that its policy of taking disciplinary action for unexcused absenteeism will be enforced. March 23, 1966: Fourth bargaining meeting. The Company announces that it will not tolerate absences for attending to union business. The main topic of discussion in the bargaining is the grievance procedure. The Union objects to the provision of the Company's grievance proposal requiring that all grievances be handled in non- working hours. March 25, 1966: Fifth bargaining meeting. The parties discuss the areas of disagreement between them. The Company says it will attempt to revise some of its proposals in an effort to meet some of the Union's objec- tions and to bring in its revised counterproposals at the next meeting. The Union suggests resolving some of the differences at the meeting. The Company asks for revised proposals from the Union. April 3, 1966: A number of the employees come in late at staggered hours. This was done by prearrangement among the employees, but without the knowledge of Mills, the union representative. April 4, 1966: The Company posts notices warning of discipline "up to and including discharge" for unexcused tardiness. April 4, 1966: Sixth bargaining meeting. Federal Mediator Nathan Kazin attends at request of the Com- pany. Mr. Kazin is also present at all subsequent bargain- ing meetings. The Company brings its revised counter- proposals concerning "Grievance Procedure," "Union Representation," and "Vacations " The Union charges the Company with stalling. The Federal mediator is ap- prised of the areas of agreement and disagreement between the parties. April 5, 1966: Charles Stuckey commences encourag- ing employees to slow down their work and to "mess up" valves, and himself slows down the operation of his lathe.2 April 6, 1966: Seventh bargaining meeting. After an angry attack by the Union upon the Company's position, Mr. Kazin prevails upon the Company to continue discussing points of difference between the parties. The Union objects to the Company's recognition clauses, in- sisting that the language of the Board's certification was controlling, and also to the Company's leave-of-absence provision. The Company agrees to allow a 21-day leave of absence to one employee per year to attend State or na- tional conventions of the Union, and offers to submit counterproposals on these subjects and also on the sub- ject of safety and health. The Union charges the Com- pany with being unwilling to meet longer than 2 hours at a time. The Company offers to continue if anything con- structive can be accomplished. April 11, 1966: Eighth bargaining meeting. The Com- pany presents counterproposals entitled "Certification," "Recognition," "Leave of Absence," and "Safety and Health " The Union objects to the Company's failure to offer time and one-half for all hours over 8 hours per day. Plant Manager Gill states that he does not "see anything wrong with time and a half over eight hours." Company Attorney Wells then states that "that is at this stage not a counterproposal." April 13, 1966: Ninth bargaining meeting. Company submits its second counterproposals concerning recogni- tion, leave of absence, and bulletin boards, and tentative agreement is reached on these subjects. April 15, 1966: Tenth bargaining meeting. Tentative agreement is reached on the Company's proposed provi- sions entitled "Legality of Provisions" and "Complete Agreement." 2 Although Stuckey himself denied engaging in such conduct, the testimony of several witnesses and the circumstances of the case as a whole support this finding. 594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD April 21 , 1966: Eleventh bargaining meeting The Company protests the refusal of employees to work over- time and announces that it is taking the position that the employees refusing to work overtime will be treated as engaging in a partial strike and will be subject to discharge A letter to this effect is handed to the Union. The Company presents its second counterproposals covering "Safety and Health," "Hours of Work." and "Overtime " No provision is made for time and one-half over 8 hours. The Union rejects both proposals The Union submits its first counterproposals to the Com- pany's counterproposals. The subjects covered are "Past Privileges" and "Management Prerogatives " The Com- pany rejects both of the Union's counterproposals. April 26, 1966 Twelfth bargaining meeting. The Com- pany presents in typed form its revised provisions regard- ing "Recognition," "Arbitration," and "Bulletin Boards," changed to reflect previous tentative agreements, and also a revised counterproposal on "Physical Examina- tions." This latter proposal is at first rejected by the Union but after being amended to incorporate the Union's suggestions, the amended proposal is agreed to by the Union. The Union tenders a written proposal re- garding wages for the Company's various categories of employees and demands an answer Plant Manager Gill states that no money could be offered at that time, adding that production was down and that the men were respon- sible for it Wells states that a wage survey is being prepared, that it has not been completed. and that as of that time the Company could not offer an increase in wages When the Company presents an additional para- graph to be added to its "Recognition" provision, which had been prepared to meet the Union's objections to the Company's "Management Rights" provision, the Union still refuses to agree, asking for a checkoff provision in return. April 27, 1966, 8 a.m. Plant Manager (,ill transfers Ronald Glover from his job as safety valve repairman in the field to a machinist's position in the shop, attributing his action to bad work done by Glover's crew for the Georgia Power Company Gill states to Glover that he blames Charles Stuckey for putting Glover up to "sabotaging" the job for the Georgia Power Company. April 27, 1966, 9.40 a m. The Company posts the fol- lowing notice on its bulletin board After arriving at work and punching in. no one is to leave the premises without the approval of the Plant Superintendent, the one exception being between the time of punching out and in during the noonday break April 27, 1966 After a discussion during the 15 minute midmorning break period which ended at 10 a.m., the Company's employees walk out on strike (with the excep- tion of the three latest hired employees) and commence picketing the plant April 28, 1966 The Union files a charge with the Board based upon the Company's posting of the April 27 notice, alleging that it had thereby unilaterally changed working conditions in violation of Section 8(a)(5) and (1) of the Act. April 29, 1966. Thirteenth bargaimne meeting The Union informs the Company that the strike has been called because of the Company's action in depriving em- ployees of the right to leave the plant premises during the midmorning coffee break The Company explains that the men had been overstaying their leave Mills denied in- stigating such conduct and said he had no control over the men. The discussion turns to the Company's "Manage- ment Rights." "Seniority," and "Grievance Procedure" provisions. Mills says that the Union might agree to the "Management Rights" provision if the Company granted a checkoff of union dues. Wells orally proposes a checkoff provision provided that it is revocable at will and would be discontinued altogether whenever the number of effective checkoff authorizations in the Com- pany's hands dropped below 50 percent of the number of employees in the unit. The Union rejects this proposal. Mills asks Wells if he had any counterproposals regarding wages. Wells said no, he would counterpropose those when the economics stage of the negotiations was reached. May 2, 1966 The Company's letter dated April 28, 1966, is received by the Union. In a portion of this letter the Company formally notifies the Union that the em- ployees had been overstaying their leave on the morning coffeebreak and for this reason it was posting the notice(of April 27) "effective immediately." May I I , 1966: Fourteenth bargaining meeting The Company offers its second counterproposal on "Grievance Procedure," which was accepted by the Union, although it still contained the prohibition against handling grievances during working hours The Com- pany's "Seniority" proposal is discussed. The stumbling block is the provision that disputes over seniority would not be subject to the grievance procedure or arbitration. Finally, after the union bargaining committee held a private caucus, Mills indicates acceptance of the Com- pany's "Seniority" proposal. May 12, 1966 to June 14, 1966• The Company notifies 12 of its striking employees by certified mail that they have been replaced and that they "shall no longer be con- sidered as an employee of the Company " May 18, 1966 Fifteenth bargaining meeting. Wells hands Mills a letter stating that the Company has no counterproposal on wages to offer at that time, as present wages fairly compensated employees for the work per- formed, but adding that a wage survey was in progress and if it showed individual adjustments were necessary, counterproposals in this area would be made. The Com- pany submits a minor modification of its "Management Rights" proposal and a discussion follows during which Mills indicates that he is reneging on his previous agree- ment on the Company's "Seniority" proposal But Mills states that he would accept the Company's "Seniority" proposal if it were amended to provide for plantwide se- niority, and would also accept the Company's "Manage- ment Rights" and "Continuity of Operations" proposals if the Company would agree to the checkoff of union dues. The Company declines May 25, 1966 Sixteenth bargaining meeting. Attorney Thomas Larkin steps in as chief union negotiator. After the parties bring Larkin up to date on the areas of agree- ment and disagreement, he inquires about the possibility of a wage increase Wells states that the Company was not then able to offer a general wage increase, and that if the wage survey which was being prepared indicated that individual adjustments were in order, such would be made. Wells added that due to financial conditions, with only two or three employees in addition to the top management staff working, no general increase would be forthcoming in the immediate future Following a brief discussion of the Union's insurance and pension proposals, which were not acceptable to the Company, and a more thorough discussion of the Company's ITT HENZE VALVE SERVICE 595 "Safety and Health" proposal, the meeting terminated. No agreements were reached. May 31, 1966: Seventeenth bargaining meeting. Lar- kin questions the Company concerning whether there is any possibility of the Company's improving its offers re- garding vacations, holidays, overtime, and wages. Wells states that the Company hopes to have the wage survey available soon and would furnish Larkin with a copy. As to this and the other matters raised by Larkin, Wells states, the Company's position is unchanged, but, if it should subsequently conclude that a change was in order, it would submit further counterproposals. At this point Larkin states that he saw no sense in continuing further, and the meeting terminates with the understanding that either party would contact the other if his position changed. June 15, 1966: The Company transmits its wage sur- vey and checkoff counterproposal to the Union. The checkoff proposal contained substantially the same con- ditions which Wells had previously proposed orally; i.e., the checkoff was revocable at will and was subject to the requirement that 50 percent of the unit participate. July 19, 1966: Eighteenth bargaining meeting. Larkin notifies the Company that the "revocable at will" and "50 percent participation" requirements of the checkoff coun- terproposal are not acceptable to the Union and proposes that the Company consider the Union's usual checkoff provision, with the condition that it might be revoked after 6 months rather than a year. The Company declines this proposal. The Company also declines to change its position regarding a general wage increase but offers to furnish a copy of certain job classifications being prepared by the parent company as soon as it is ready. August 1, 1966: Employees cease picketing the plant. August 6, 1966. The Company notifies the Union of its intention to grant merit wage increases to three returned first class valve repairmen, one newly hired stainless valve assembler, and one laborer. August 24, 1966: The Company notifies the Union of its intention to grant merit increases to a newly hired valve assembler and a recalled laid-off valve dismantler. September 21, 1966: The Company notifies the Union of its intention to grant merit increases to three valve as- semblers, one a nonstriker and the other two newly hired employees. September 24, 1966: The Company transmits to the Union its proposal on "Classifications" and "Minimum Wage Rates." The latter merely set forth the wage scales then in effect. November 5, 1966: The Company notifies the Union of its intention to grant merit increases to three of its newly hired employees in the lowest wage categories, in- cluding one who had previously been given a merit in- crease in August. C. The Company's Alleged Refusal to Bargain Collec- tively with the Union in Violation of Section 8(a)(5) and (1) of the Act 1. Preliminary statement; background The complaint alleges that the Company violated Sec- tion 8(a)(5) of the Act by its action on April 27, 1966, in effecting a change in working conditions (withdrawing the employees' previous privileges to leave the premises dur- ing the midmorning break period) without consulting with the Union and bargaining about the change, and by its conduct at the bargaining table in submitting predictable unacceptable proposals to the Union and thereafter in- flexibly refusing to comprimise such proposals. The latter conduct, the complaint alleges, was engaged in "with no intention of entering into any final or binding collective- bargaining agreement with the Union." These latter al- legations raise the question of the Company's good faith throughout the negotiations.3 Essential to reaching any sound conclusions concern- ing the Company's good faith in the bargaining negotia- tions is an understanding of the setting in which the col- lective bargaining took place and the Company's attitude towards having a union in the plant. As indicated above, about 10 days after signing the stipulation for certification upon consent election, the Company commenced its propaganda campaign against the Union. On January 27, 1966, Plant Manager Gill read to all employees a speech in which he stated in part as fol- lows: We intend to oppose the Union in this election because we do not believe that it has anything posi- tive to offer anyone at Southern Valve. Between now and the election, the professional organizers will con- tinue to try to convince you to vote for them. They can promise anything they think will buy your vote, but they cannot guarantee to make good on their promises. The Union did not create your job and it does not pay your wages. All that a Union can guarantee is, if elected, it will be able to bargain with the Company and to ask the Company to make good on the Union promises. [Emphasis in original exhib- it. ] Although the Company would negotiate in good faith if the Union was elected, the Company would not have to agree to any Union demand or make any concession. If the Union insists on trying to make good on unsound promises and the Company won't agree, it could result in a strike. Then nobody gains ... you lose, the Company loses and the losses are never made up On February I. 1966, Gill read a longer speech to all the employees in which he stated, among other things "that if this Union were to get into the plant, the result might harm you rather than benefit you," attributed pure- ly selfish motives to the Union in attempting to organize the employees, saying that its only purpose was to obtain "a slice out of your paycheck," suggested that the em- ployees' wages under a union contract would be meas- ured by those of "the worst employee in the plant, not the best," and stressed the possibility of the employees' 3 The complaint also alleges that the Company violated Sec 8(a)(5) of the Act by refusing to meet with the Union at nights and on weekends and generally limiting meetings to about 2 hours ' duration The basis for this allegation appears to have been a statement made by Attorney Wells at the April 6 bargaining meeting at which he stated that he would prefer to have the bargaining meetings limited to approximately 2 hours because his experience indicated that nothing constructive was usually accomplished in longer meetings. Wells did offer to meet longer on this occasion if the Union thought that further discussion would be beneficial. The record shows that several meetings lasted longer than 2 hours and that on at least one occasion the parties met on a Saturday The evidence fails to support this allegation of the complaint and it is hereby dismissed The further al- legation of the complaint that the Company violated Sec. 8(a)(5) of the Act by insisting on negotiating noneconomic matters first is also dismissed The record shows that the Union acquiesced in the Company's request in this regard and that the Company at no time actually refused to discuss economic demands 596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD becoming involved in a stake which would not only cost the employees money, but "could involve a permanent loss of employment." On February 3, 1966, Gill read to the employees a se- ries of questions and answers which again emphasized the possibility of the employees ' losing their jobs as a result of being replaced during an economic stake, brought out certain adverse economic consequences assertedly flow- ing from union membership and participation in strikes, and which, in effect, urged voting against the Union even though the employees may have signed a union authoriza- tion card. Copies of the document from which Gill was reading were then handed to the employees , with an in- vitation to submit any questions in writing Gill's next step in the Company's propaganda cam- paign was a speech read to the employees on February 8, in which he brought out the large number of strikes in which the Union had engaged in in the past and reemphasized the employees ' "possible loss of . . em- ployment as a result of a strike" over economic demands, resulting from the Company 's obtaining of permanent replacements After making numerous other arguments against union representation, Gill concluded his speech with a plea for a "no union" vote. On February 14, 2 days before the election , the Com- pany released the final broadside in its campaign to defeat the Union in the election. In the guise of answering cer- tain "half truths" attributed to the Union (there is no evidence of any such propagandizing by the Union), the Company advanced various arguments against union membership , and again stressed the principal theme of its whole campaign against the Union-the possibility of loss of employment due to strikes - and cited , as an ex- ample, another local concern of similar size whose em- ployees were then on strike, almost half of whom, Gill stated, "have lost their jobs." 2. The Company's alleged unilateral action on April 27, 1966 As indicated above, on April 27, the Company posted on its bulletin board a notice prohibiting the employees from leaving the plant premises during working hours, without permission of the foreman, except during the lunch period . Previously , the employees had been per- mitted freely to leave the premises during the morning break period from 9 45 to 10 a.m , and frequently went in groups to a little store about two blocks from the plant. There was no consultation with, or notice to, the Union prior to withdrawing this privilege The Company contends that in posting the notice it was merely enforcing a preexisting rule because of abuses by employees in overstaying the 15-minute break penod and that it notified the Union before doing so While I agree, contrary to the testimony of many of the employees, that some of the employees abused the break period by return- ing late, I cannot agree, and in fact have found to the con- 4 Attorney Wells testified that he protested to Union Representative Mills at the April 21 meeting about the men "laying out on the coffee break " Plant Manager Gill also testified that at some unspecified time be- fore the notice was posted he spoke to Mills about the men not returning promptly after the coffeebreak Mills, and also Yarbrough and Stuckey, who were on the union bargaining committee , testified that in none of the bargaining meetings up through April 26 had the Company called the Union's attention to employees abusing the morning break privilege At- trary, that the Company had previously prohibited the employees from leaving the premises during the break period. The testimony concerning the Company 's asserted notification to the Union , although conflicting4 is not to the point . There is no evidence that the possibility of discontinuing the leaving of-the-premises privilege (as distinguished from complaints about the men overstaying their morning break period) was ever mentioned to the Union before the Union received the Company's letter to the Union dated April 28, which was not received until May 2. Such notification obviously came too late to ex- cuse the Company 's failure to consult the Union before posting notice on Apnl 27 I find that the Company by withdrawing the em- ployees' privilege of leaving the premises during the morning break period without notifying the Union and giving it an opportunity to bargain collectively about such a change in working conditions has violated its collective- bargaining obligations under Section 8(a)(5) of the Act. Evans Products Company 160 N LRB 1822. The complaint further alleges that the withdrawal of the leaving-of-the-premises privilege constituted also a viola- tion of Section 8(a)(3) of the Act. This point is discussed below. 3 The Company's alleged lack of good faith in the bar- gaining negotiations As indicated above, the complaint alleges that the Company conducted the negotiations with no intention of entering into any final or binding collective -bargaining agreement with the Union and, as one of the specifics, al- leges that the Company made proposals concerning management rights, seniority , and dues checkoff which were predictably unacceptable to the Union and thereafter inflexibly refused to enter into any compromise arrangement. The Company's management-rights proposal reserved to the Company in paragraph 2 "sole and exclusive con-- trol" over "the assignment of work or overtime , the right to ... lay-off, reclassify , upgrade, downgrade , promote, transfer , discipline, suspend or retire ; ... the right to combine and/or eliminate job classifications and to establish new rates of pay therefor . ." Paragraph 4 states that the "exercise of management rights, powers and authority shall not be subject to any grievance and/or arbitration procedure provided that the exercise of such rights, powers and authority are not in violation of the ex- press terms of this Agreement." While the final proviso above quoted suggests that it was not the Company's intention to exclude from any grievance or arbitration procedures such common sub- jects of such procedures as layoffs, downgrading, trans- fers, and disciplinary actions, a reading of the Company's other counterproposals indicates that this is not true. Thus, the Company's proposed seniority clause, which torney Wells' own notes concerning this meeting contain no mention of this subject Nor does the Company' s letter dated April 21 mention this subject, although it does discuss the employees' refusal to work overtime Under all the circumstances I conclude that Wells and Gill were mistaken as to when they first brought up the subject of the men abusing the morn- ing break privilege , and find that it was after the notice was posted that the Company complained to the Union about the men returning late from the morning break ITT HENZE VALVE SERVICE states that "seniority will be considered by the Company in making promotions , transfers, layoffs, and recalls from lay-off, provided such factors as skill and ability, ex- perience , performance , quality of work, conduct, ad- herence to work rules, attendance , punctuality and other factors are considered equal ," provides that " Disputes arising between the parties as to the interpretation and/or application of this Section shall not be subject to grievance or arbitration." When the Union broke off the negotiations on July 19, the Company was still insisting on retaining "sole and ex- clusive control" over overtime assignment , layoffs, trans- fers, downgrading of employees , and suspensions, without any right on the part of the employees , through the Union , to question such actions through grievance or arbitration machinery. Even after the Union on May 18 proposed agreeing to the Company' s management-rights and seniority proposals in return for the Company's agreement to checkoff union dues , the Company still adhered to its position that it must have exclusive control over these matters, without resort to grievance or arbitration machinery . Respondent 's insistence upon having exclu- sive control over layoffs, transfers , suspensions , and the like, all of which are encompassed within the term "con- ditions of employment " as to which the Company was obliged to bargain collectively, and which matters are commonly covered in collective-bargaining contracts and made subject to grievance and arbitration machinery, raises a question as to the sincerity of the Company's desire to reach any agreement with the Union Doubts on this score are heightened when the Respond- ent's counterproposal on the checkoff of union dues is considered . The Union had made it plain in the negotia- tions that this was a very important provision to it. Yet the Respondent proposed that any checkoff arrangement be made revocable at will, which defeats one of the objec- tives of a union in seeking a checkoff arrangement, i e., that of achieving a degree of stability of membership in the plant. In addition , the Company proposed that the moment that the number of valid checkoff authorizations in the Company's hands fell below 50 percent of the em- ployees in the unit , the checkoff authorizations executed by the rest of the employees became invalid . The Com- pany refused to agree to Attorney Larkin' s compromise proposal that the checkoff be made irrevocable for 6 months, instead of the year permitted by the Act. Plant Manager Gill could not recall what reasons he gave for refusing to agree to the checkoff. Other events during the bargaining cast doubt on the Company's good faith in the negotiations. At the April 1 1 bargaining meeting the Union requested the Company to agree to pay time and a half for all work in excess of 8 hours per day rather than for all over 40 hours per week, which was the present practice When Plant Manager Gill replied that he did not "see anything wrong with time and a half over eight hours ," Attorney Wells, as he testified, interrupted to say that that was not a company counter- proposal . Whereupon Union Representative Mills ac- cused Wells of preventing Gill from making a counter- proposal . In the caucus of the members of the Company's bargaining committee which followed, Wells decided that no such offer should be made Although the Company submitted a revised counterproposal on "Hours of Work and Overtime " at the bargaining meeting on April 21, the Company did not yield to the Union's request for over- 597 time for over 8 hours ' work per day , but instead reiterated its original proposal to pay the minimum the law permits, overtime for all work over 40 hours per week. This was the position to which the Company adhered throughout the negotiations. The inconsistency in the Company's position at the bargaining table regarding the adequacy of its wage scales and its actions at the plant during the strike in raising the wages of returned strikers and newly hired employees further indicates that the Company did not entertain a genuine desire to reach an agreement with the Union. The Union , in deference to the Company 's request that noneconomic questions be disposed of first, put off presenting any wage proposals until the 12th bargaining meeting on April 26. The Union sought at this time a top pay for a grade A repairman of $3 per hour and $3.20 per hour for a grade A machinist. Also proposed by the Union at this time was a 25 -cent per hour premium for leadmen . These proposed wage scales were approximate- ly 25 cents per hour higher than the Company 's present wage scales. The Company's response to this wage proposal at the April 26 meeting , which was reiterated as late as the July 19 bargaining meeting , was that in the Company' s opinion its present wage rates , based upon its wage survey and the low level of production, was sufficient and adequate. On June 15 the Company submitted to the Union a copy of the wage survey to which it had been referring throughout the negotiations, together with an accompany- ing table setting forth comparisons between its average rates and the average hourly rates in the Jacksonville area. This table indicated that the Company's rates were above the Jacksonville area rates , except in one category, machinist-welder, in which its rates were 6 cents below the area average . The wage survey, incidentally, had been originally prepared in February or March. On August 5, less than a month after the Company stated at the 18th bargaining meeting that no general wage increase could be offered at that time, the Company started notifying the Union of its intention to grant "merit" wage increases to its employees . Twelve em- ployees, in all, were granted these increases in the follow- ing 3 months , including one employee who in addition to receiving a "merit" wage was also promoted to a higher paying job classification, and another who received two "merit" increases during this period. The increases granted Bennett Davis, Robert Finlay , and Robert Nutter , brought their wages up to $3.05 per hour, which although less than the Union had sought for employees in their job classifications in its earlier wage proposals, might have afforded a basis for a compromise had they been offered to the Union across the bargaining table. On September 24 the Company finally submitted to the Union its proposals on wages and job classifications. Its proposal concerning wages covered minimum wages only and the highest wage offered in any job classification was $2.90 per hour . While it is difficult to correlate the Com- pany's proposed job classifications with the classifica- tions set forth on a list prepared by the Company on January 12, 1966, it appears that the Company's proposal did not offer an increase in any job classification. Cer- tainly there was nothing on the face of the Company's wage and job classification proposals to make it evident to the Union that it was offering an increase in any minimum wage classification . Needless to say, the Corn- pany's wage proposal was meaningless insofar as the 308-926 0-70-39 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's experienced employees were concerned since they were entitled to be, and were in fact being, paid at above the minimum wage rate. The Company's wage and classification proposals made no provision for the posi- tion of machinist-welder, the one existing position which the Company's wage survey showed to be underpaid ac- cording to area standards. This, notwithstanding the Company's repeated offers to correct any individual maladjustments in wages revealed by its wage survey. Not only did the Company not offer anything at all to the Union with respect to wages in the course of the long negotiations , but with one minor exceptions the Com- pany at no time in the bargaining offered any concessions of an economic nature, although the Union indicated that if it received something of substance in return it would agree to company proposals which severely restricted the scope of its legitimate activities on behalf of the em- ployees, such as the Company's management-rights and seniority proposals. While the duty to bargain collectively imposed by Sec- tion 8(a)(5) of the Act does not require the making of con- cessions of any kind, the failure of an employer to offer any economic concessions may cast light on the question whether the employer is participating in the negotiations with the good faith which the Act requires As has been aptly stated by the Court of Appeals for the Fifth Circuit in an early case, Globe Cotton Mills v. N.L.R.B , 103 F.2d 91, 94, and reaffirmed in a more recent decision N.L.R.B. v. Herman Sausage Company, 275 F.2d 229, 231, "there is a duty on both sides, though difficult of legal enforcement, to enter into discussion with an open and fair mind, and a sincere purpose to find a basis of agreement...." Or, as stated by the Supreme Court in N.L.R.B. v. Insurance Agents' International Union, 361 U.S. 477, 488, "the policy of Congress is to impose a mu- tual duty upon the parties to confer in good faith with a desire to reach agreement...." The multitude of cases before the Board and the Courts dealing with the duty to bargain collectively in good faith, as the Supreme Court further stated, are "concerned with insuring that the parties approach the bargaining table with the attitude." (361 U.S. at 488.) Upon all of the facts of this case I conclude that the Company from the beginning did not approach the bar- gaining table with a genuine desire to find a basis for agreement with the Union. In reaching this conclusion I am not unmindful of the fact that the Company not in- frequently modified its proposals on noneconomic mat- ters in response to objections. But despite many meetings and a large amount of paper shuffling on the Company's part - the submission and resubmission of revised coun- terproposals- the Company's basic position changed very little. Nor am I disregarding the fact that during the negotiations some of the employees were subjecting the Company to harassing tactics, such as engaging in con- certed refusals to work overtime, being absent or late for work, that Charles Stuckey engaged in a slowdown and encouraged others to do the same, and that the Company had reason to believe that Ronald Glover and two other employees on his repair crew had sabotaged certain repair jobs. However, as the Supreme Court has held, the resort to such "unjustifiable" and "abusive" economic weapons is not inconsistent with bargaining collectively in good faith. N.L.R.B. v. Insurance Agents' Interna- tional Union, 361 U.S. 477. As indicated above, I conclude upon the totality of the Company's conduct in this case that it did not at any time enter into the negotiations with an open mind and a sin- cere purpose to find a basis for agreement with the Union. To sum up, the Company was strongly opposed to having a union in the plant in the first place. Its propaganda cam- paign against the Union during the preelection period, although conducted within the letter of the law, leaves no doubt on this score. The Company insisted throughout the negotiations on retaining sole and exclusive control over many aspects of the employer-employee relationship which are normally covered by the collective-bargaining contract, subject to grievance and arbitration procedures. Although the Union offered to yield on numerous of the Company's restrictive proposals as a quid pro quo for a checkoff provision, the Company steadfastly refused to agree to any meaningful checkoff provision. The Com- pany apparently gave no explanation for its position in this regard. The Company inflexibly refused to grant time and a half after 8 hours even though Plant Manager Gill could see nothing wrong with such a proposal. The Com- pany's action in raising the wages of employees working during the strike was wholly inconsistent with the posi- tion taken by it at the bargaining table that its wage scale was adequate. In addition, the Company ignored the Union completely in the midst of the negotiations in uni- laterally withdrawing the employees' privilege of leaving the premises during the morning break period. Ac- cordingly, I find that the Company has violated its duty to bargain collectively in good faith with the Union. D. The Company's Discrimination against Employees in Violation of Section 8(a)(3) and (1) of the Act 1. The unfair labor practice strike The complaint alleges that certain employees of the Company went out on strike on April 27 and that the strike was caused and prolonged by the Company's unfair labor practices. As found above, within 20 minutes after the Company posted the notice prohibiting the employees from leaving the premises during the morning break period without permission from the foreman, the employees, all except three, after discussing the new rule among themselves de- cided to, and did, walk out of the plant on strike. Nu- merous employees testified to the effect that the com- pany's posting of the notice was discussed among the em- ployees at the meeting immediately before the strike and that they felt that this was the latest in a series of harassing steps taken by the Company against the em- ployees and should be protested by a strike. When questioned concerning the reasons for the strike the em- 5 At the May 3l meeting the Union sought to have included in the "Safety and Health" provision the requirement that the Company supply reissues of safety equipment, such as shoes and prescription glasses For- merly, the Company had issued replacements for such safety items or- ginally furnished by the Company, but had discontinued the practice prior to the commencement of the negotiations At this meeting Wells indicated the Company's willingness to replace such items, provided the Company had the option of determining whether the equipment had worn out through ordinary wear and tear or because of the employees' negligence While Attorney Larkin was amenable to this proposal, the two employee members of the union bargaining committee refused to agree ITT HENZE VALVE SERVICE ployees testified almost uniformly that it was the posting of the notice on April 27 which precipitated the strike and that a contributing factor was the feeling of the men that the Company was stalling in the bargaining negotiations. Upon all the evidence I conclude that the posting of the notice on April 27 forbidding employees from leaving the premises during the morning break period was the pre- cipitating factor in causing the strike that day. The Company contends that this conclusion is not war- ranted in view of certain testimony indicating that the strike was planned before the notice was posted. While I am convinced that some of the employees had made up their minds before the posting of the notice that the time was ripe for a strike, I am not persuaded that the em- ployees as a whole had reached any understanding as to the timing of the strike. In any event, since, as I have found, the posting of the notice of April 27 was the precipitating factor in the strike, it is immaterial that some of the employees may have previously decided that a strike should be called to strengthen the Union's position in the bargaining negotiations. Since, as found above, the Company's posting of the notice of April 27 constituted unilateral action regarding a matter about which the Company was obliged to bar- gain collectively with the Union, and therefore an unfair labor practice in violation of Section 8(a)(5) of the Act, the strike was an unfair labor practice strike, and I so find. 2. The Company's refusal to reinstate George Douglas and Jimmy Horne On May 20 Douglas and Horne went into the plant and asked Plant Manager Gill whether they could have their jobs back. Douglas had previously been sent a termina- tion letter dated May 12. Gill told Douglas that he had no further use for him, as he had been replaced by a qualified man, and stated that he could not understand why Douglas was on company property. Gill then turned to Horne, one of the machinists, and told him, "we have replaced 5 men ... but we are going to take the machinists that want to come, back to work." Gill then gave Horne an application-for-employment form and told him he would have to fill it out before he could come back to work. Horne asked Gill whether he would be "hired in" at his previous rate of pay. Gill said that he would. When Horne inquired whether he would have his seniority, Gill replied that he would not promise Horne anything Gill then asked when Horne would return to work. Horne said he would let Gill know the fol- lowing Monday. On Monday, Horne told Gill that under the circumstances he would not return to work. Gill told Horne that he had better make up his mind, as he was going to start replacing the rest of the strikers. In August Horne received a telephone call from Foreman Ellis, who asked Horne if he wanted to return to work. In response to this call Horne went out to the plant and discussed the matter with Ellis and Gill. To Horne's inquiry whether he would get his vacation, Gill replied that he would promise him nothing but he added that the rest of the returned strikers were going to get their vacations. Gill also mentioned that the other returned strikers had received merit raises since their 6 However, in this case, unlike the Mastro Plastics case in which un- conditional applications for reinstatement had been made by all the 599 return to work and that he might qualify for a merit raise 30 days after his return to work. Horne did not return to work. At the hearing in this case on December 2, 1966, the Company in the presence of Horne, offered him full and unconditional reinstatement without prejudice to his seniority or other rights and privileges. 3. The Company's termination of replaced strikers As indicated above, on various dates between May 12 and June 14 the Company sent termination letters to the strikers whose jobs had been filled while they were out on strike, The employees to whom the letters were sent are as follows: Kenneth Cooney, George Douglas, Ronald Glover, Lawrence Godsey, Danny Horne, James Hutchinson, Johnnie Lynes, Jr., Willie Mobley, Herbert Nolan, Thomas Sims, Charles Stuckey, and Bobby Yar- brough. The text of the letters was the same in each case, as follows: We regret to inform you that your job classification has been filled by a qualified applicant during strike conditions. Consequently we have no alternative but to terminate your insurance coverage and other Company benefits, effective immediately, as you shall no longer be considered as an employee of this Company. 4. Conclusions concerning the Company's violations of Section 8(a)(3) and (1) of the Act Since the strike was an unfair labor practice strike, the Company was obligated to offer full reinstatement to the strikers, without prejudice to their seniority and other rights and privileges , upon their applying unconditionally to return to work . Mastro Plastics Corp v. N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. Dell, f/a Waycross Machine Shop 283 F.2d 733, 741 (C.A. 5). As found above, the Company flatly refused Douglas' unconditional applica- tion for reinstatement . In the case of Jimmy Horne, the Company conditioned his return to work upon his filling out an application as a new employee and refused to as- sure him that his seniority rights would" be restored to him. Such a conditional offer of reinstatement to Horne did not fulfill the Company ' s obligations under Section 8(a)(3) of the Act and constituted in law a refusal to rein- state. Quality Limestone Products Inc., 153 NLRB 1009, 1012 (Meyers). The Company ' s refusal to reinstate George Douglas and Jimmy Horne violated Section 8(a)(3) and ( 1) of the Act. The Company 's termination of the replaced strikers constituted a further violation of Section 8(a)(3) and (1) of the Act. Here , as in the Mastro Plastics case, the strike having been caused by the Company 's unfair labor prac- tices, "the striking employees do not lose their status and are entitled to reinstatement with back pay , even if replacements for them have been made" (350 U.S. at 278). The Company by sending the letters to the 12 replaced strikers , effected the termination of the strikers' employee status, and thereby discriminated against them in violation of Section 8(a)(3) and (I) of the Act.' The complaint alleges that the Company's action on April 27 in withdrawing the employees' privilege of leav- stnkers, no backpay will accrue until the strikers seek unconditionally to return to work. 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing the premises during the morning break period also violated Section 8(a)(3) and (1) of the Act. There is no question but that the withdrawal of such a preexisting privilege constitutes an act of discrimination within the meaning of Section 8(a)(3). The question remains whether the Company's action in this regard was taken for antiunion reasons so as to bring it within the scope of Section 8(a)(1). The Company contends that the notice in effect withdrawing the privileges was posted in an effort to end the employees' practice of returning late from the morning break period. Various factors lead me to reject the Company's con- tention in this regard. Light on the Company's motives in putting the new prohibition into effect is shed by a con- versation between employee James Armstrong and Foreman Ellis, which occurred a few days after the strike had begun. Armstrong testified that during this conversa- tion, which was over the telephone, Ellis informed him that Plant Manager Gill had told Ellis that he (Gill) thought "that the men were going out during the coffee break to call Mr. Mills, the union representative, concern- ing the grievances that had occurred that morning." Ellis was unable to recall having any such telephone conversa- tions with Armstrong and denied making some of the statements attributed to him by Armstrong. Ellis was not questioned about Gill's asserted statement about the men calling Mills during the break period. Nor was Gill questioned about this subject. Armstrong impressed me as a witness with a good recollection who was sincerely trying to tell the truth. I credit Armstrong's testimony. It is not disputed that among the five principal offend- ers with respect to returning late after the morning break period were three of the main union leaders, Yarbrough, Stuckey, and Jimmy Horne. Unlike the previous notices posted by the Company re- garding absenteeism and tardiness, which merely warned of disciplinary action in the event of future abuses, the notice of April 27 did not even mention the employee abuse which assertedly prompted the posting of the April 27 notice- the overstaying of the morning break period- but merely announced that forthwith the em- ployees were not to leave the premises without permis- sion, except during the noonday break. And Gill admitted that the previous notices had been effective in correcting the abuses which had lead to their posting. Under all the circumstances, I conclude that the Com- pany in posting the notice of April 27 was motivated in large measure by a desire to prevent the employees from communicating with their union representative, a legiti- mate union activity, and that discrimination engaged in for such reasons is violative of Section 8(a)(3) and (1) of the Act. E. The Company's Alleged Acts of Interference, Restraint, and Coercion in Violation of Section 8(a)(1) of the Act The complaint alleges that various statements made by Plant Manager Gill to employees interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. The testimony of Bennett Davis and John Hopper to the effect that "we'll get more out of IT&T than we would get out of the Union," which was apparently adduced in support of paragraph 6(a) of the complaint, does not support a finding of an independent violation of Section 8(a)(1) of the Act. This allegation of the complaint is hereby dismissed. Paragraph 6(b) of the complaint alleges that Gill told an employee that "the employees might as well hit the bricks if the contract proposals of Respondent were not ac- cepted." Charles Stuckey testified that Gill came to him back at the welding booth soon after the negotiations started and, after commenting "that he didn't inderstand how that we could vote the Union in to the shop after the Company had passed out their campaign literature," stated "that if the men did not like the contract that the Company was going to present, that they could hit the brick." Gill testified that he stated to the union bargaining committee at one of the bargaining meetings that "if a strike is ever called, Mr. Mills, in this plant- or, to use your expression, hit the bricks- you are responsible for putting these men on the street. It is not us. Because we are bargaining in good faith." I credit Gill's version. And even under Stuckey's version, no unfair labor practice is proven. The allegation of paragraph 6(b) of the complaint is hereby dismissed. Herbert Nolan testified in support of paragraph 6(c) of the complaint, that at the beginning of the negotiations Gill stated to him, Foreman Ellis, and Mr. Smith, the salesman, and perhaps two other employees as follows: ... that the union could take or leave the Company's offer- that the only thing the union could do would be to strike, if they ... didn't take what the Com- pany had offered ; and that, as far as he was con- cerned, his money was in IT&T, a much larger con- cern than the Southern Valve, . and that this Southern Valve didn't amount to a hill of beans, as far as IT&T was concerned . . this plant could be closed down, and the loss could be absorbed by IT&T without hurting any of the stockholders ... it didn't make any difference to him, whether the plant was closed or not- whether there was a contract signed. That he had sold out to IT&T. Gill denied making any such statement. Nolan appeared to be testifying candidly and his version contains suffi- cient details regarding matters with which he would not normally be familiar to convince me that Nolan's testimony should be credited By threatening, in effect, that IT&T might close the plant in the event of a strike, the Company has engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. Paragraph 6(e) of the complaint' alleges that Gill in mid-April told an employee, when settling an overtime claim, that the matter would not have come up if the Union had not come in, and that the employee would have been better off if they had been left alone and the Company able to institute the IT&T benefit program. Nolan testified that he had a conversation with Gill the first half of April in which Gill agreed that he had a "legitimate gripe" about overtime. Nolan's testimony about this conversation continues as follows: ' Par 6(d) alleging that Gill told an employee that he was not going to agree to anything except what he wanted to was stricken at the hearing upon the Company's motion for failure to state a violation of the Act ITT HENZE VALVE SERVICE 601 ... he says, "Well, you know, all this would have been straightened out if the union hadn't of come in." He said that IT&T had done a survey here, and that they had drawn up a package, which would bring this plant- the Jacksonville plant- up to the standards of the other IT&T plants. And he said part of this package would include over- time after eight, which would have absolved the problem that we were having at that time... . And he said that this package had other benefits- I don't recall exactly what they were- whether it was- but I do recall one specific item; he said that he wasn't surprised with some of the things he had found out himself, in relation to the Jacksonville plant and the other IT&T plants, and the additions that would be here, when it was brought up to- or if it was brought up to IT&T standards... . He said that the men in the shop would have been a lot better off if they had not brought the union in, and that the company could have done a lot more for the men than the union could- although he didn't say what the union was going to do for the men, or could do for the men, at that time. Gill denied making these statements . For the reasons above stated I credited Nolan's testimony . Gill's state- ment to the effect that the employees would have received time and one -half after 8 hours and would other- wise have fared better without the Union had definite coercive implications and violated Section 8 (a)(1) of the Act. Paragraph 6(f) of the complaint containing substantially the same allegations as paragraph 6(d) fails to state a violation of Section 8(a)(1) of the Act and is hereby dismissed. James Armstrong testified respecting the allegations of paragraph 6(g) of the complaint as follows: Mr. Gill said, first , that there wouldn't be but, possibly, five men ever come back to the shop to work; and he told me that , if I wanted to come back any time, and that he 'd be glad to have me if my posi- tion was not filled, and the job- excuse me- the job I had not filled , he'd put me back on , and he thought I done good work while I was on the road. And when he went right back and said that, if any man come back to apply for work, and his job hadn't been filled, that he would put him on .... And he said - he went on to say that he'd figure in a year's time , he'd have a whole group of men trained, to replace every man- if they weren't back, he'd replace them. And, in a year 's time- and he told me that, if he lost,$5000 a month , it wouldn't hurt the company a bit on this training program. Gill admitted telling Armstrong the first part of the last paragraph quoted above but denied saying the last part, about $5,000 a month . Disregarding the last part of the above-quoted statement , the rest of the statement as a whole constitutes a threat permanently to replace the strikers. The normal tendency of such a threat would be to coerce employees into abandoning the strike, a pro- tected concerted activity. In view of the fact that the strike was caused by the Company's unfair labor prac- tices, as found above, the Company could not lawfully threaten the permanent replacement of the strikers, and the Company's action in this regard violated Section 8(a)(1) of the Act. CONCLUSIONS OF LAW 1. All production and maintenance employees, includ- ing truckdrivers and installation servicemen, employed at the Respondent's plant at 4133 North Canal Street, Jacksonville, Florida, excluding office clerical em- ployees, salesmen, guards and supervisors as defined in the Act, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. On and at all times since February 25, 1966, United Steelworkers of America, AFL-CIO, has been the exclu- sive bargaining representative of the employees in the aforesaid collective-bargaining unit. 3. By refusing on and after March 4, 1966, to bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of the employees in an appropriate bar- gaining unit, the Respondent has engaged in unfair labor practices in violation of Section 8(a)(5) and (1) of the Act. 4. By unilaterally withdrawing the employees' privilege of leaving the plant premises during the morning break period, the Respondent has engaged in a further un- fair labor practice in violation of Section 8(a)(5) and (1) of the Act. 5. By refusing to reinstate George Douglas and Jimmy Horne on May 20, 1966, and by terminating'the employ- ment of Kenneth Cooney, George Douglas, Ronald Glover, Lawrence Godsey, Danny Horne, James Hutchinson, Johnnie Lynes, Jr, Willie Mobley, Herbert Nolan, Thomas Sims, Charles Stuckey, and Bobby Yar- brough, and by withdrawing the employees' privilege of leaving the premises during the morning break period, the Respondent has discriminated in regard to the hire, tenure, and conditions of employment of its employees, thereby discouraging membership in the Union, in viola- tion of Section 8(a)(3) and (1) of the Act. 6. By threatening that the plant might be closed in the event of a strike and permanently to replace unfair labor practice strikers, and by stating that employees would receive greater employee benefits without a union, the Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Section 8(a)(1) of the Act. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices, my Recommended Order will direct that the Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act, including bargaining collectively with the Union, upon request, and to restore, if it has not already done so, the employees' privilege of leaving the plant premises during the midmorning break period. I have found that on May 20, 1966, the Respondent unlawfully refused reinstatement to George Douglas and Jimmy Horne, who had unconditionally offered to return to work after a strike caused by the Respondent's unfair labor practices. Subsequently, at the hearing, the Re- 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD spondent unconditionally offered Horne reinstatement. My Recommended Order will provide that the Company offer immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority and other rights and privileges. to Douglas, and that the Respondent make both Douglas and Horne whole for their losses resulting from the Respondent's refusal to reinstate them , by payment to each of them of the sum of money which he normally would have earned as wages from May 20, 1966, the date on which they ap- plied for reinstatement, until the date on which they are or were offered unconditional reinstatement In the case of Horne, who was unconditionally offered reinstatement at the hearing on December 2, 1966, his backpay period will terminate on this date With respect to the striking employees whom the Respondent terminated, my Rec- ommended Order will similarly require the Respond- ent to offer them immediate and full reinstatement to their former or substantially equivalent positions, dismissing if necessary, any replacements hired, and that the Respondent make them whole for any loss of pay they may have suffered or may suffer as a result of any refusal on the Respondent's part to grant an unconditional appli- cation for reinstatement Regarding the remaining striking employees, my Recommended Order will provide that the Company offer them, upon application, immediate and full reinstatement to their former or substantially equivalent positions, dismissing replacements if necessa- ry, and that the Respondent make them whole for any loss of pay they may have suffered by reason of the Respondent's refusal, if any, to reinstate them Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as pros ided in F W Woolworth Company, 90 NLRB 289, and I sia Plumbing & Heating Co , 138 N LRB 716 Upon the foregoing findings and conclusions and the entire record, and pursuant to Section lore) of the Act, there is hereby issued the following RECOMMENDED ORDER The Respondent , ITT Henze Valve Service. Controls and Instruments Division. International I'elephone and Telegraph Corporation, Jacksonville , Florida , its officers, agents , successors , and assigns, shall I Cease and desist from (a) Threatening permanently to replace unfair labor practice strikers, or to close the plant in the event of a strike , warning employees that they would receive greater benefits without a union, and in any similar manner inter- fering with , restraining, or coercing employees in the ex- ercise of rights guaranteed in Section 7 of the Act (b) Refusing to bargain collectively in good faith with United Steelworkers of America , At I - 10, as the ex- clusive representative of all production and maintenance employees , including truckdrivers and installation ser- vicemen employed at its Jacksonville . Florida, plant, ex- cluding office clerical employees , salesmen , guards and supervisors as defined in the Act (c) Changing the working conditions wages, hours or other terms of employment of its employees without noti- fying the United Steelworkers of America. AFL-CIO, and giving it an opportunity to bargain collectively about such proposed changes (d) Discouraging membership in United Steelworkers of America, AFL-CIO, or any other labor union , by ter- minating or refusing to reinstate employees because of their union or strike activities, by withdrawing privileges which the employees enjoy as a condition of their em- ployment, or in any other manner discriminating in regard to hire or tenure of employment, or any term or condition of employment 2 Take the following affirmative action which it is found will effectuate the policies of the Act (a) Upon request, bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the ap- propriate unit set forth in paragraph I (b) hereof. (b) Restore to its employees, if it has not already done so, the privilege of leaving the plant premises during the midmorning break period. (c) Offer immediate and full reinstatement to their former or substantially equivalent positions to Kenneth Cooney, George Douglas, Ronald Glover, Lawrence Godsey, Danny Horne, James Hutchinson, Johnnie Lynes, Jr , Willie Mobley, Herbert Nolan, Thomas Sims, Charles Stuckey, and Bobby Yarbrough, without preju- dice to their seniority or other rights and privileges, and make each of them and Jimmy Horne whole for any loss of earnings he may have suffered as a result of the dis- crimination against him in the manner set forth in the sec- tion of this Decision entitled "The Remedy." (d) Upon application, offer immediate and full rein- statement to their former or substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, to any other of the Respondent's em- ployees who went out on strike on April 27, 1966, and make each whole for any loss of earnings he may have suffered as a result of any refusal of his unconditional ap- plication for reinstatement. in the manner set forth in the section of the Trial Examiner's Decision entitled "The Remedy " (e) Notify any of the employees named in the preced- ing paragraphs, excepting Jimmy Horne, if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces (f) 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 amounts of backpay due (g) Post at its Jacksonville, Florida, plant copies of the attached notice marked "Appendix "" Copies of said notice, to be furnished by the Regional Director for Re- gion 12, after being duly signed by an authorized representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in a 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 Ap- peals Enforcing an Order " shall be substituted for the words "a Decision and Order " ITT HENZE VALVE SERVICE conspicous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 12, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith.`' I In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respond- ent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer 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 em- ployees that: WE WILL NOT threaten permanently to replace un- fair labor practice strikers, to close the plant in the event of a strike, warn employees that they will receive greater benefits without a union, or make similar threats against employees because of their union or strike activities. WE WILL NOT change the working conditions, the wages, hours, or other terms of employment of our employees without notifying the United Steelwork- ers of America, AFL-CIO, and giving it an oppor- tunity to bargain collectively about such proposed changes. WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, or any other union by terminating or refusing to reinstate unfair labor practice strikers, by withdrawing privileges which the employees enjoy as a condition of employ- ment, or by discriminating against employees in any other manner in regard to their hire or tenure of em- ployment or any term or condition of employment. WE WILL, if we have not already done so, restore to our employees the right to leave the plant premises during the midmorning break period. 603 WE WILL, upon request, bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive representative of all production and maintenance employees, including truckdrivers and installation servicemen, employed at our Jacksonville, Florida, plant. WE WILL offer immediate and full reinstatement to their former or substantially equivalent jobs to Ken- neth Cooney, George Douglas, Ronald Glover, Lawrence Godsey, Danny Horne, James Hutchin- son, Johnnie Lynes, Jr., Willie Mobley, Herbert Nolan, Thomas Sims, Charles Stuckey, and Bobby Yarbrough, and will reimburse George Douglas and Jimmy Horne for any loss of pay they may have suf- fered as a result of our refusal to reinstate them on May 20, 1966. We have previously offered Jimmy Horne reinstatement. WE WILL, upon application, offer immediate and full reinstatement to any other employees who went out on strike on April 27, 1966. WE WILL notify George Douglas and any other of the striking employees who have been denied rein- statement, if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selec- tive Service Act and the Universal Military Training Service Act, as amended, after discharge from the Armed Forces. Dated By ITT HENZE VALVE SERV- ICE, CONTROLS AND IN- STRUMENTS DIVISION, IN- TERNATIONAL TELEPHONE AND TELEGRAPH CORPORA- TION (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7711.