Stafford Trucking, Inc.

894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stafford Trucking, Inc. and Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local No. 695, af- filiated with International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 30-CA-416 July 28, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On March 28, 1967, Trial Examiner Ivar H. Peterson issued his Decision in the above-entitled case, finding that the Respondent had engaged in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dis- missed. Thereafter, the Respondent filed excep- tions 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. 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 hereby orders that the Respondent, Stafford Trucking, Inc., Portage, Wisconsin, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE IVAR H. PETERSON, Trial Examiner: Upon charges and amended charges filed on June 20 and July 18, 1966, by Drivers, Salesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 166 NLRB No. 107 No. 695, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 30, on September 19, 1966, issued an amended complaint against Stafford Trucking, Inc., herein called the Respondent, alleging that the Respond- ent had engaged in unfair labor practices violative of Section 8(a)(1), (3), and (5) of the National Labor Rela- tions Act, as amended, herein called the Act. More specifically, the complaint charged that the Respondent had interfered with the self-organizational rights of its em- ployees by interrogating an employee concerning his union membership, activities, or desires, and had on two occasions threatened an employee with physical harm and discharge because of his membership and activities on behalf of the Union; had unlawfully refused to bargain with the Union, the certified and exclusive representative of its employees in an appropriate unit, by the foregoing conduct and by unilaterally changing wage rates and withdrawing recognition from the Union; and had refused to reinstate employees who unconditionally offered to return to work after engaging in a strike caused and pro- longed by the Respondent's unfair labor practices. In its answer, the Respondent-denied the commission of any unfair labor practices. Pursuant to notice, a hearing was held before Trial Ex- aminer Ivar H. Peterson at Portage, Wisconsin, on Oc- tober 25, 1966, at which all parties were represented and afforded full opportunity to participate. Oral argument was waived at the conclusion of the hearing; briefs sub- mitted by the General Counsel and the Respondent have been considered. Upon the entire record in the case, and from my obser- vation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, a Wisconsin corporation, with its principal office and place of business in Elm Grove, a suburb of Milwaukee, Wisconsin, and a dispatch office and garage at Portage, Wisconsin, is engaged in the busi- ness of local and interstate hauling by truck. During the past year, a representative period, the Respondent received in excess of $50,000 for furnishing interstate transportation of various materials including silica, and in excess of $50,000 for trucking services performed within the State of Wisconsin for firms engaged in interstate commerce. The Respondent admits and I find that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act, admitting to membership em- ployees of the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background This is the third in a series of cases involving the Respondent and the Union. Because the earlier STAFFORD TRUCKING, INC. 895 proceedings, herein referred to as Stafford I and Stafford II, constitute relevant background to a clearer un- derstanding of the events with which we are here con- cerned, and since the General Counsel has alleged in the complaint that the strike which began on June 20, 1966, was in part caused and prolonged by the unremedied un- fair labor practices found by the Board in the prior cases, it is necessary to summarize briefly what was involved in and the outcome of these earlier proceedings. In Stafford I, decided on January 15, 1965 (Stafford Trucking, Inc., 150 NLRB 1036), the Board found that, during the Union's organizational campaign which began in June 1963 and resulted in a Board-conducted election in September of that year, the Respondent violated Sec- tion 8(a)(1) of the Act by interrogating and threatening employees because of their union activity and by threatening more strict enforcement of company rules and discharge for any infraction thereof if the Union became the bargaining representative . The Board further found that the Respondent discriminatorily discharged employees Frederick Lowitz and Daniel Immel and dis- criminatorily denied recall to employee Raymond Toivonen. The customary cease-and-desist order was en- tered , and approprite affirmative action directed. I The Board's Order, except as to Toivonen , was enforced by the United States Court of Appeals for the Seventh Cir- cuit on April 19, 1966. N.L.R .B. v. Stafford Trucking, Inc., 359 F.2d 829 (C.A. 7). Stafford II primarily involved the alleged unlawful discharge of Becker and Immel on January 30, 1964, fol- lowing their rehire in August and November 1963, respectively. Additionally , in that case the Respondent was charged with refusing to bargain collectively with the Union, following its certification on January 8, 1964, as the exclusive representative of the Respondent's truckdrivers and mechanics . The Board's decision in Stafford II, issued on September 17, 1965 (Stafford Trucking, Inc., 154 NLRB 1309), found that the Re- spondent had discriminated against Becker and Immel and, by unilaterally instituting an insurance program in March 1964 , without bargaining on that subject with the Union, had violated Section 8(a)(5) and ( 1) of the Act. In addition to directing the reinstatement with backpay of Becker and Immel, the Board ordered the Respondent to cease and desist from unilaterally "instituting changes in insurance programs or in other terms and conditions of employment" and directed that the Respondent, upon request, bargain with the Union "with respect to insur- ance programs and other terms and conditions of employ- ment and, if an understanding is reached , embody such understanding in a signed agreement." The Board's Order in Stafford II was enforced in full by the court of appeals on December 27, 1966. N.L.R.B . v. Stafford Trucking, Inc., 371 F.2d 244 (C.A. 7). On September 21, 1965, 4 days after issuance of the Board's Decision in Stafford II, Donald Eaton, secretary- treasurer and representative of the Union , wrote to Jack Stafford, the Respondent's president and principal owner, requesting that pursuant to the Board's Decision and Order the parties "begin bargaining immediately concern- ing wages and working conditions for the employees in the bargaining unit found appropriate." Eaton received no reply from the Respondent and he made no attempt to pursue the matter further with the Respondent between then and the beginning of the strike on June 20, 1966. Eaton testified that he did not contact Stafford further after the September 21 letter because "it was futile ... unless we were able to exert some economic pressure" on the Respondent or "until either the courts or the Board or somebody made them meet in good faith." B. Alleged Interrogation and Threats Early in June 1966, following enforcement by the court of appeals of the Board's Order (as modified) in Stafford I on April 19, 1966, the Respondent posted the required notice. Shortly thereafter Thomas Borchert, one of the Respondent's truckdrivers, called Eaton, the Union's representative, and stated that the employees wanted to have a meeting with the Union to see about getting a con- ract with the Respondent. In another telephone conversa- tion a couple of days later between Borchert and Eaton a meeting was arranged for Saturday night, June 18, at a hotel in Portage. During the evening of Tuesday, June 14, Borchert and two other employees, Norbert Gross and Ralph Turner, had a conversation at the Respondent's garage. Accord- ing to Gross, Borchert announced that there was to be a union meeting on the following Saturday night.2 While the three were conversing Wilcy Stafford, Respondent's dispatcher and the son of Jack Stafford, came to the yard. Turner, who had indicated to Gross and Borchert that he did not want a union and was satisfied with working 60 or more hours per week, went out of the garage and was ob- served by Borchert, as he left to go to the sandpit to load, standing with Wilcy Stafford. Before Gross went to the pit, Wiley Stafford came to him and asked what Borchert had been telling him. Gross testified he told Stafford that Borchert had said there was to be a union meeting on Saturday night, and Stafford commented that that was news to him. At the sandpit Gross told Borchert what Stafford had asked and what he, Gross, had answered The General Counsel contends that the foregoing inter- rogation of Gross by Wilcy Stafford was violative of the Act. While I find that Stafford, the Respondent's dispatcher, is a supervisory employee,3 I perceive nothing coercive in the inquiry he made of Gross. All that appears is that he asked Gross what Borchert had told him. The testimony of Gross does not indicate that Staf- ford's question sought to ascertain anything respecting the "union membership, activities, or desires" of Gross, as alleged in the complaint. Perhaps one might speculate that Stafford had knowledge of the union meeting, ob- tained from Turner or other sources, and was attempting to find out what Gross' views were or the extent of Borchert's involvement. However, the record does not ' The Board dismissed the allegation that employee Donald Becker had been discriminatorily discharged, reversing the Trial Examiner's conclu- sion in this respect. 2 Borchert, however, testified that it was Gross who made the state- ment that there was to be a union meeting and that he (Borchert) said nothing I credit Gross ' version, as he impressed me as a more reliable witness than Borchert and his account is more consistent with the earlier role of Borchert in arranging the meeting. Moreover, Borchert's affidavit of June 21 states that he asked Gross and Turner "if they heard there was going to be a union meeting" on Saturday 3 The record shows, and I find, that Stafford hired Gross, sets up schedules for the truckdnvers, and personally or by written messages left at the garage tells them what equipment to use, where to deliver, and the grade of sand to deliver. In his absence, Jack Stafford, whose headquar- ters are some 90 miles from Portage, takes over his son's duties. Wilcy Stafford did not testify. 896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD support either inference. I conclude that the allegation of unlawful interrogation has not been proven , and ac- cordingly will recommend that it be dismissed. During the night of June 14-15 Borchert first made a delivery to Madison, Wisconsin. He returned to Portage about 3 a.m. and took a load of sand to Liberty Foundry, in Milwaukee. As he was pulling into the driveway at Liberty Foundry, at approximately 5.30 a m , Jack Staf- ford drove up. According to Borchert, Stafford came over to the unit as Borchert began to discharge the load and "started cussing me out and swearing at me," accused him of maintaining his unit in a "filthy" condition and of wanting the best runs and the best equipment, checked the pressure in the tires and complained about the condi- tion of one tire that had a "dog bite" out of it At one point , so Borchert testified , Stafford "took off his glasses and hat and coat and put them in the truck and threw his fists up in the air and ... says he wanted to fight." Borchert asked whether Stafford was trying to discharge him, and Stafford said he was. Stafford did not strike Borchert. Stafford testified that the evening of June 14 he received a report from his son Wiley, by telephone, that Borchert, according to information furnished Wiley by employee Humber, had used vulgar language to an offi- cial of Wehr Steel while making a delivery. Stafford testified that he ascertained from his son where Borchert was to make deliveries that night and went to Liberty Foundry to reprimand Borchert for using vile language to a customer. When Stafford came to the unit he first up- braided Borchert for the dirty condition of the equipment and then asked about "the filthy language that he used" at Wehr Steel. By Stafford's account, Borchert then "started shooting his mouth off and I got angry, I really got angry, and I took my coat off and I took my specs off and I said, I want to find out what makes you tick "' On his way back to Portage Borchert telephoned Eaton and reported the incident at Liberty Foundry. When he returned to the garage he asked Wilcy Stafford why Jack Stafford "was down there harrassing me is it because of the union meeting?" Wiley Stafford, according to Borchert's undenied testimony, "said he didn't know there was even going to be a union meeting," to which Borchert replied, "You know better than that .. Gross told you last night." As to the Wehr Steel incident, Borchert on cross-ex- amination denied that this was mentioned during his en- counter with Jack Stafford. However, it fairly appears that Borchert had told employees Devoy and Huber, at a time not fixed in the record, that he had had to wait at Wehr Steel about 2 hours to get unloaded but he denied having used or stating that he had used vulgar language to the Wehr Steel employees. Employee DeVoy testified Borchert had stated he had used such language in telling the Wehr Steel employee how long he expected to be there, but DeVoy was vague as to when this incident oc- curred-first stating it was in April, then in May. DeVoy additionally testified he made no report of Borchert's re- marks, Huber did not testify. The General Counsel contends that Jack Stafford's conduct toward Borchert at Liberty Foundry on the morning of June 15 constitutes harrassment of an em- ployee because of his union activity and hence is violative 4 After the incident with Borchert , Stafford, so he testified, unsucess- fully attempted to check with someone at Wehr Steel to find out whether of Section 8(a)(1). So far as the record shows, the only union activity in which Borchert had engaged up to that point was arranging by telephone with Eaton for a union meeting on Saturday night , June 18, and advising em- ployees Gross and Turner of the meeting while the three of them were conversing in the garage the evening of June 14 Shortly thereafter, in answer to Wiley Stafford's inquiry as to what Borchert had told him, Gross informed Wilcy that Borchert had said there would be a union meeting Saturday night. According to Jack Stafford, his son Wiley telephoned him that same evening to report that Borchert had used vulgar language to an employee of Wehr Steel. I infer that Wiley told his father during the evening of June 14 of the upcoming union meeting and identified Borchert as the employee promoting it. I do not credit Jack Stafford's testimony that the reason for his confronting Borchert the morning of June 15 was because of a report he had received the night before about Borchert's conduct at Wehr Steel. His testimony in this regard is not only self-serving but wholly uncorroborated. His demeanor in testifying left me with the distinct im- pression that he was motivated by a deep hostility toward Borchert. He refused, moreover, on three occasions to respond to questions on cross-examination, until his counsel admonished him. I conclude that Stafford's con- duct toward Borchert the morning of June 15 was prompted by Borchert's role in renewing interest in the Union among the employees and his apparent connection with the union meeting to be held the night of June 18, and was therefore violative of Section 8(a)(1) of the Act. At the union meeting on June 18, the II or 12 em- ployees present voted to strike the Respondent. Picketing began about 8 p m. on Monday. June 20, at the Respond- ent's garage, and the strike continued until July 10 or 12 On June 23 Borchert was at the picket line with several other strikers. According to Borchert, Jack Stafford drove a truck into the driveway in such manner that Borchert, who was "standing on the public side of the driveway," had tojump out of the way to avoid being hit Stafford parked the truck at the garage and then, so Borchert testified, came running toward Borchert and with profanity said, "I'll kill you yet " Stafford's version is that as he was turning into the entrance of the driveway, going about 10 miles per hour, Borchert jumped in front of the truck, causing Stafford to apply the airbrakes and bring the vehicle to a complete stop. Im- mediately after parking the truck, according to Stafford, he went back. to the picket line, "mad and ... shaking," and told the pickets "there'll be no more of this . . I'm going to call the sheriff." The General Counsel contends that Stafford's unde- nied threat to Borchert-"I'll kill you yet," as Borchert testified-is violative of Section 8(a)(1) Viewed in proper context, I do not regard this incident as being an inter- ference with the Section 7 rights of Borchert, even assum- ing Stafford made the statement attributed to him by Borchert. My assessment of the testimony of Borchert and Stafford, neither of whom impressed me as an espe- cially trustworthy witness, is that each was prone to minimize his own responsibility for the incident and to ex- aggerate the provocative or hostile action of he other. The truth, I am persuaded, lies somewhere between their respective versions. I am convinced that Borchert or not Borchert had used vulgar language STAFFORD TRUCKING, INC. 897 deliberately delayed getting out of the path of the truck until Stafford was so close that he brought the truck to a halt by applying the airbrakes . I reject the testimony of Stafford that Borchert jumped in front of the truck as well as the clear implication of Borchert's account that Staf- ford was attempting to run him down. I find that Borchert's provocative conduct in attempting to block entry into the driveway caused Stafford to fly into a rage and to say, in anger and with profanity, "I'll kill you yet." In the circumstances , I do not view this statement as a threat to inflict physical injury upon Borchert for engag- ing in any activity protected by Section 7 of the Act. Ac- cordingly, this allegation will be dismissed. C. The Refusal to Bargain; the Strike As recited above, in Stafford II, decided September 17, 1965, the Board found that in 1964, following certifi- cation of the Union in January of that year, the Respond- ent had unlawfully refused to bargain with the Union. The Respondent did not comply with the board's direction that it bargain and, at the time of the hearing in the current case, the Respondent was resisting enforce- ment of the Board's bargaining order in that proceeding. On December 27, 1966, the court of appeals enforced the Board's Order which directed that, among other things, the Respondent bargain in good faith with the Union "as the exclusive bargaining representative of its employees in the unit found to be appropriate, with respect to in- surance programs and other terms and conditions of em- ployment, and, if an understanding is reached, embody such understanding in a signed agreement." Following the Board's decision in Stafford II, the Union on September 21, 1965, wrote the Respondent requesting that bargaining negotiations , in compliance with the Board's Order, be commenced. The Respondent did not reply. On March 15, 1966, as stipulated by the parties, the Respondent increased the wages of its drivers from $2.50 to $2.75 per hour. There was no bargaining with, or notification to, the Union regarding the increase. About the first week in June 1966, the Respondent posted the notice required by the decision of the court of appeals, entered April 19, 1966, enforcing, as modified, the Board's 8(a)(1 ) and (3) Order in Stafford 1.5 Employees read the notice and discussed among them- selves the possibility of obtaining a collective-bargaining agreement. In consequence , the union meeting of June 18 was arranged. What occurred at the union meeting, attended by 11 or 12 employees, is fairly summarized in the following credited testimony of Eaton, the Union' s representative: Q. All right. Will you tell us that you"said at this meeting and what occurred at the meeting? A. Well, I told the employees that I'd been deal- ing with Jack Stafford for a long time, ... and he was almost impossible to deal with. I told them about the previous unfair labor practice charges ... about the fact he currently had been ordered by the 7th Circuit Court of Appeals to pay backpay amounting to sev- eral thousand dollars to a couple of employees . . . and they had been previously ordered . . . by the Board to bargain with this union, that we'd had a number of meetings with Mr. Stafford and his coun- sel to try and negotiate a contract and hadn't been successful, that Jack had continuously flaunted the labor law ... and that any attempt to correct these things and finally get an agreement with him was going to be very difficult. I think I went over that any number of times with the people to try to impress upon them that any kind of an argument with Jack Stafford was going to be a long one and a difficult one. During the course of the meeting the subject of the notice that was posted came up , I read portions of the notice or practically all of the notice , I guess... Well, there were comments made like, well, he can't fire us because of this notice, he can't give us a bad time about the union because this notice is up there, things like that. I told them that regardless of this notice I would expect Stafford to do most anything including possibly discharges. At that point somebody said they hadn't been able to see all the notice, so I questioned them as to how it was posted. They told me it was posted so they couldn't see Jack's signature, there apparently was another page underneath it. Somebody said he had taken the thumbtacks out and looked and Jack made him put them back. I told them I thought that was a further violation of the order and I would report it, that probably the only way Jack Stafford would ever comply with these orders was if finally the Court held him in contempt and either fined him or jailed him. They wanted to know how they could go about getting a contract. I told them they would have to, probably the only way they could do it is to strike Jack and if they thought the group they had there was large enough to strike the company and bring him to his knees at that point we might be able to get a con- tract. I also explained to them that a strike of this kind based upon the previous orders to bargain and upon his failure to pay the backpay to these people involved here, Lowitz and Immel ... and because of the incident at Liberty Foundry involving Borchert and the improper posting of this notice, that this could be an unfair labor practice strike and explained to them the significance of an unfair labor practice strike was that in the event it was unsuccessful they couldn't be permanently replaced and that Stafford would have to give them their jobs back. The group discussed the timing of a strike , Eaton urg- ing that because he and other union agents were to be away attending a convention and unavailable to assist the employees , a strike not be called immediately. Eaton also suggested it would be advantageous to wait until foun- dries were again in operation and in need of trucking ser- vices following the customary shutdown for a week or two around the Fourth of July. However, the employees indicated, so Eaton testified, that "they thought a strike would be successful at that point." Thereupon, Eaton told them they should sign union application cards and pay their initiation fees and dues, and take a secret-strike bal- lot. Application cards were filled out and some of those present paid their initiation fees and dues . A secret ballot was taken, resulting in a vote of 10 to 0 in favor of strik- ing. 5 It appears, however, that for about 10 days the notice, consisting of the second page in such fashion that the second page could not easily be two pages, was improperly posted in that the first page was fastened over read 898 DECISIONS OF NATIONAL During the discussion Becker, who had been involved as an alleged discriminatee in both of the earlier unfair labor practice cases, told the employees that, from his ex- perience with Stafford, Eaton "wasn't giving them any baloney," that Stafford "would fight just as hard as possi- ble and would do anything possible to avoid signing a con- tract or ever having anything to do with the union." Picketing began on Monday evening, June 20. The record is not clear how many of the 18 or 19 unit em- ployees participated in the strike. The Respondent con- tinued to operate , and during and following the strike, which ended on July 10 or 12, some of the strikers returned to work. The record does not show when, or in what numbers, replacement workers were employed. On July 15 Eaton sent a telegram to Walter Davis, counsel for the Respondent , making unconditional appli- cation on behalf of the striking employees for reinstate- ment to their former or substantially equivalent jobs, stat- ing that they would report for work at the usual time on July 19. Davis replied the same day, stating the Respond- ent then had no positions available, but that "former strikers will be called if and when positions become available."s Also on July 15 Eaton sent a second tele- gram to Davis stating that the Union demanded "that all replacements be immediately terminated in order to give returning strikers the available work" and that Davis should contact Eaton "when you are prepared to reinstate any of the men." Davis replied by letter dated July 22, noting also that the Union had filed a first amended charge (on July 18) alleging the unlawful refusal to rein- state strikers . His letter continued: If the Company is to give any consideration to your insistence that strikers be reinstated, we will have to have from you a statement answering the fol- lowing questions: 1. What unfair labor practice allegedly committed by the Company caused or prolonged the strike? We are advised that the sole reason the employees were induced to go on strike was that they were told that by doing so "we would have Stafford exactly where we want him; he'll have to come down to Madison on his knees and sign the contract." 2. Who communicated, when and how, to Staf- ford that the strike was to bring about an adjustment of a grievance or unfair labor practice? The only con- tact which the Company had with any representative of the Union during the strike was your telephone call to me on June 21, 1966, the main purport of which was to advise me there was a strike, ask if I had talked to Stafford to which I said, "No," and in- form me that "every dog has its day." 3. What contract or offer of contract or proposal was communicated to Stafford immediately prior to or during the strike? As related above, the Company knows of none. We are awaiting comment from you. Eaton replied to Davis on August 1, as follows: We are in receipt of your letter of July 22. We see no reason to participate in a letter-writing effort nor do we feel compelled to respond to all of the factual errors and distortions contained in your letter. 6 Without identifying to whom reference was being made, Davis' tele- gram further stated that "strikers who caused or threatened physical LABOR RELATIONS BOARD If your correspodence is intended to convey the hint that Mr. Stafford is now "good and ready" to meet and negotiate in good faith with the Union, we are pleased with his change in attitude and ask that you notify us as to his earliest availability for a meet- ing. Likewise, if Mr. Stafford is now prepared to rein- state the strikers and, if necessary , dismiss the replacements , then we suggest he do so. On August 23 Eaton wired Davis requesting "recon- sideration" of the Respondent's "refusal to negotiate" and stating it was "imperative that we reach agreement on" reinstatement of strikers "as well as labor agree- ment." Davis answered on August 29, at some length. He de- nied that the Respondent had refused to negotiate with the Union, recalling that at the hearing in Stafford lI in January 1965 Eaton had testified that the last meeting between the parties was on June 2, 1964, and stating that meetings subsequently scheduled between then and mid- September 1964 had been canceled by Eaton. His letter continued: I assume that your telegram of August 23, 1966, is calculated to build some sort of a case by pulling on your own bootstraps. Stafford Trucking, Inc. has advised you of its position with respect to reinstate- ment of the employees whom you induced to go on strike. If those employees who struck and were replaced want to work for Stafford Trucking, Inc. again in the future, they should get word to Mr. Staf- ford, advising him of such fact and leaving their names, addresses, and telephone numbers where they can be reached, so that they can be called if an opening develops. You can collect the information if you want to and send it to me. Those strikers who did apply to come back to work before they were replaced, came back to work. Presumably openings will develop in the future just from the normal turnover of personnel. So that this case you may be attempting to fabricate can be complete, this is also to advise you that your request to negotiate a labor agreement, which was received on August 23, 1966, is now too late, as Stafford Trucking, Inc. is certain that you do not represent a majority of its employees as of this date. Accordingly, the Company will not commit an unfair labor practice by dealing with an organization which does nol represent a majority of its employees in an appropriate unit for collective bargaining. As of this moment the facts of life do not indicate to us that you presently hold any rights which impose any obligations upon Stafford Trucking, Inc. D. Concluding Findings I agree with the General Counsel that the unilateral wage increase granted employees in the bargaining unit as of March 15 , 1966, without bargaining or consultation with the Union, constitutes a violation of Section 8(a)(5) of the Act. I further find that the withdrawal of recogni- tion from the Union on August 29, 1966, was similarly violative of Section 8(a)(5). Although substantially more damage to persons or property during strike need not apply " STAFFORD TRUCKING, INC. 899 than a year had elapsed between the Union's certification as exclusive representative on January 8, 1964, and these events of March and August 1966, in the circumstances of this case the lapse of the certification year is unavailing to the Respondent as a defense. As found by the Board in Stafford 11, and sustained by the court of appeals, the Respondent engaged in conduct in derogation of its col- lective-bargaining obligaion 2 months following certifica- tion of the Union. Also, prior to the Union's certification, as established in Stafford I, the Respondent had engaged in substantial unfair labor practices. From the cessation of bargaining negotiations in June 1964 until the Respond- ent withdrew recognition from the Union on August 29, 1966, the bargaining relationship had been suspended by litigation of the Respondent's unfair labor practices. As the Supreme Court has said, "A bargaining relationship once rightfully established must be permitted to exist and function for a reasonable period in which it can be given a fair chance to succeed."7 And, the duty to bargain even though the certification year has expired, continues to exist "for a reasonable period of time exclusive of the period during which the bargaining relationship was suspended by litigation of the Company's unfair labor practices."9 I conclude and find that at all times here material the Union was, and now is, the exclusive representative for the purposes of collective bargaining of the Respondent's employees in the unit heretofore found appropriate and that the Respondent, by unilaterally in- creasing wages in March 1966 and by withdrawing recog- nition from the Union on August 29, 1966, violated Sec- tion 8(a)(5) and (1) of the Act. The question remains whether the strike which began on June 20, 1966, was an economic or an unfair labor practice strike. The General Counsel argues that while the strike "was designed to secure a contract," the fact that "failure to get that contract earlier had been frus- trated by Respondent's unfair labor practices" necessari- ly leads to the conclusion that these unfair labor practices "played a contributory role in bringing about the decision to strike." On the other hand, counsel for the Respondent contends that the strike "was caused by the desire of cer- tain of Respondent's employees to obtain a labor con- tract," and that there is no basis in the record to infer "that the employees' decision to strike was in any way to protest either the alleged unfair labor practices which had occurred previous to the strike and are being litigated in this case, or the Board-determined unfair labor practices which had occurred more than two years before." I am persuaded that the Respondent's unremedied un- fair labor practices were a substantial contributing factor in bringing about the decision to strike. These violations were brought to the attention of the employees at the June 18 meeting by Eaton in order to emphasize that, in his view, Jack Stafford "had continuously flaunted the labor law" and that "to correct these things and finally get an agreement with him was going to be very difficult." When some employees expressed the view that the notice the Respondent had recently posted as a result of the court's enforcement of the Board Order in the first case would protect them from discharge or other reprisals on account of union activity, Eaton told the employees "that re- gardless of this notice I would expect Stafford to do most anything including possibly discharges." In answer to inquiries as to how a collective-bargaining contract could be obtained, Eaton stated that "probably the only way" was to strike. Borchert expressed a similar view, stating he told the men that "if you just joined the union and wanted him [Stafford] to negotiate a contract, he wouldn't, because if he did he would have prior to this time." In other words, both Eaton and Borchert ex- pressed the opinion that the past actions of the Respond- ent in combating the employees' efforts at self-organiza- tion and collective bargaining made it unlikely that their objective of a contract could be achieved by means short of a successful strike. I think it plain that in voting to strike the employees agreed with this assessment of the situation. I conclude and find that the unfair labor prac- tices of the Respondent, as determined by the Board in the prior proceedings and which were still unremedied, played a contributory role in the employees' decision to strike, and that the strike, therefore, was an unfair labor practice strike from its inception.9 In response to the Union's unconditional request of July 15 for immediate reinstatement of the strikers as of July 19, the Respondent replied that there were then no vacant positions and that strikers "will be called if and when positions become available." Since, as I have found, the strike was an unfair labor practice strike, the striking employees, under settled law, were entitled to reinstatement upon unconditional application therefor. I find that the Respondent, by failing and refusing to rein- state the strikers for whom application was made on July 15, discriminated against them in violation of Section 8(a)(3) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, which have been found to constitute unfair labor practices occurring in connection with the opera- tions of the Respondent described in section 1, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in un- fair labor practices, it will be recomended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since the Respondent unlawfully refused to reinstate its striking employees upon the Union's unconditional ap- plication in their behalf, it will be recommended that the Respondent offer them immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any replacements in order to provide work for such strikers. It will also be recommended that the Respondent make them whole for 7 Franks Bros Company v N L R.B , 321 U S 702,705 8 N.L R.B v.John S Swift Company, inc , 302 F 2d 342, 346 (C A. 7) 9 Although I have found that the unilateral incease in wages made in March 1966, and the harassment of Borchert by Jack Stafford on June 15, 1966, were violative of the Act, these incidents seem to me to have little, if any, causal relation to the decision to stoke However, in view of my finding that the previously determined unfair labor practices were acausa- tive factor, it is unnecessary to decide whether the unfair labor practices found in the current case to have occurred prior to the stoke also con- tributed to the decision to strike. 900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by paying to each of them a sum of money equal to the amount he nor- mally would have earned as wages from July 19, 1966, the date the unconditional application was effective, to the date of the Respondent's offer of reinstatement, less his net earnings during said period . The amount of backpay due shall be computed according to the Board's policy set forth in F. W. Woolworth Company, 90 N LRB 289, with interest on backpay computed in the manner set forth in Isis Plumbing & Heating Co, 138 NLRB 716 Payroll and other records in possession of the Respond- ent are to be made available to the Board, or its agents, to assist in such computation and in determining the right to reinstatement. In view of the nature of the unfair labor practices which I have found to have been committed , I shall recommend that the Respondent cease and desist from in any manner interfering with. its employees' rights guaranteed under Section 7 of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case , I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. The Union is a labor organization within the mean- ing of Section 2(5) of the Act 3. At all times material the Union has been, and now is, the exclusive representative of the employees in the unit heretofore found appropriate for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 4. By unilaterally increasing wages in March 1966, and withdrawing recognition from the Union on August 29, 1966, the Respondent has violated Section 8(a)(5) and (1) of the Act. 5. By threatening to discharge and otherwise har- rassing its employee , Thomas Borchert , on June 15, 1966, the Respondent has violated Section 8(a)(1) of the Act. 6 By refusing immediate reinstatement to the unfair labor practice strikers , upon their unconditional offer to return to work on July 19, 1966, Respondent dis- criminated in regard to their hire and tenure of employ- ment , thereby discouraging membership in the Union in violation of Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2 (6) and (7) of the Act. 8. In other respects alleged in the complaint, the Respondent has not violated the Act RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in the case, it is recommended that the National Labor Relations Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that the Respondent , Stafford 10 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 Trucking, Inc., Portage , Wisconsin, its officers, agents, successors , and assigns , shall: 1. Cease and desist from- (a) Discouraging membership in Drivers, Salesmen, Warehousemen , Milk Processors , Cannery , Dairy Em- ployees and Helpers Union Local No. 695, affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America , or in any other labor organization , by discriminatorily failing or refusing upon their unconditional request to reinstate any of its employees who have engaged in a strike and are lawfully entitled to reinstatement , or by discriminating against its employees in any other manner in regard to hire or tenure of employment or any term or condition of employment. (b) Threatening to discharge or otherwise harrassing its employees because of their membership in or activities on behalf of the above-named Union. (c) Refusing to bargain with the above -named Union as the exclusive representative of its employees in the unit found to be appropriate for the purposes of collective bargaining. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of rights guaran- teed in Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act' (a) Offer to the employees, who on or about July 15, 1966, made unconditional request for reinstatement, im- mediate and full reinstatement to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and p ivileges, and make them whole in the manner set forth in the section of this Deci- sion entitled "The Remedy." (b) Notify the said employees if presently serving in the Armed Forces of the United Sates of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (c) Upon request, bargain collectively in good faith with the above-named Union as the exclusive representa- tive of the employees in the unit heretofore found ap- propriate, concerning rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (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 determine the amount of backpay due and to analyze reinstatement rights under the terms of this Recommended Order. (e) Post at its Service Building in Portage, Wisconsin, copies of the attached notice marked "Appendix "iO Copies of said notice, to be furnished by the Regional Director for Region 30, after being duly signed by a representative of the Respondent, shall be posted by the Respondent immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to em- Court of Appeals, the words "a Dcree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " STAFFORD TRUCKING, INC. 901 ployees 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. (f) Notify the Regional Director for Region 30, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.l l 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 30, 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 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 discourage membership in or activi- ty on behalf of Drivers, Saesmen, Warehousemen, Milk Processors, Cannery, Dairy Employees and Helpers Union Local 695, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeus, Warehousemen and Helpers of America, or any other labor organization, by discriminatorily failing or refusing to reinstate any of our employees or by discriminating in any other manner in regard to hire or tenure of employment or any term or condition of employment, except as authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. WE WILL offer the employees, who on July 15, 1966, made an unconditional request for reinstate- ment, immediate and full reinstatement to their former positions, without prejudice to senority and other rights and privileges. WE WILL make all employees whole for any loss of pay suffered as a result of refusing to reinstate them. WE WILL, upon request, bargain collectively in good faith with the above-named Union, as the ex- clusive bargaining representative of our employees in the unit found by the National Labor Relations Board to be appropriate for the purposes of collec- tive bargaining, with respect to rates of pay, wages, hours of employment, and other conditions of em- ployment, and, if an understanding is reached, em- body it in a signed agreement. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor or- ganizations, to join or assist the above-named Union or any other labor organization, to bargain collective- ly through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protec- tion, or to refrain from any or all such activities, ex- cept to the extent that such right may be affected by an agreement requiring membership in a labor or- ganization 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. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named Union or any other labor organization. STAFFORDTRUCKING, INC. (Employer) Dated By (Representative) (Title) NOTE: We will notify the employees to be reinstated, if presently serving in the Armed Forces of the United States, of their right to full reinstatement upon applica- tion, in accordance with the Selective Service Act and the Universal Military 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, Suite 230, Commerce Building, 744 North Fourth Street, Milwau- kee, Wisconsin 53203, Telephone 272=8600. 308-926 0-70-58