Farmers' Cooperative Compress

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Farmers' Cooperative Compress and United Packinghouse, Food and Allied Workers, AFL-CIO. Case 16-CA-2802 January 23,1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS , AND ZAGORIA On June 23, 1967, Trial Examiner Alba B. Mar- tin issued his Decision in the above-entitled proceeding, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affir- mative action, as set forth in the attached Trial Ex- aminer's Decision. Thereafter, the Respondent, the General Counsel, and the Charging Party filed ex- ceptions to the Trial Examiner's Decision and sup- porting briefs. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommen- dations 2 of the Trial Examiner, as modified herein. Claiming, inter alia, that the matter had occurred more than 6 months before the charge was filed and therefore barred by Section 10(b) of the Act, Respondent excepted to the Trial Examiner's find- ing that it violated Section 8(a)(1) of the Act by sending Fernando Gonzales and Joe Rogers to work outside in the cold on the morning after the first bargaining session in reprisal against these men for serving on the bargaining committee. The record shows that Rogers and Gonzales were sent outside to work on February 2, 1966. Rogers remained out- side for 3 weeks and Gonzales for "two months or so." The complaint, however, does not specifically mention this matter, nor are we satisfied that the matter was sufficiently litigated to warrant a finding of an independent violation. Apart from 10(b) con- siderations, therefore, we do not find such independ- ent 8(a)(1) violations and do not adopt section 1(f) of the Trial Examiner's Recommended Order. 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 or- ders that the Respondent, Farmers' Cooperative Compress, Lubbock, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as modified herein: 1. Delete paragraph 1(f) of the Trial Examiner's Recommended Order and reletter the remaining paragraphs accordingly. 2. Insert the following as paragraph 2(c) and re- letter the present 2(c) paragraph as 2(d): "(c)' Notify the striking employees 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." 3. Insert the following as paragraph 2(e) and re letter subsequent paragraphs: (d) "Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security pay- ment records, timecards, personnel records and re- ports, and all other records necessary to analyze the amount of backpay due under the terms of this Order." 4. Delete the 6th and 11th indented paragraphs of the notice. 5. Add the following immediately below the signature line at the bottom of the notice: Note: We will notify the striking employees 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. 6. Delete from relettered paragraph 2(d) of the Trial Examiner's Recommended Order that part thereof which reads "to be furnished" and sub- stitute therefor "on forms provided." ' The date in fn. I of the Trial Examiner's Decision is hereby corrected to read September 19, 1966. 2 In adopting the Trial Examiner's finding that Respondent violated Section 8(a)(5), we do not rely on his conclusions concerning Respond- ent's unwillingness to accept an arbitration clause. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE ALBA B. MARTIN, Trial Examiner: This proceeding, with all parties represented, was heard before me in Lub- bock, Texas, on January 17-20, 1967, on complaint of the General Counsel and answer of Farmers' Coopera- tive Compress, Respondent herein.' The issues litigated were whether Respondent refused to bargain in good faith with the Union concerning "cost items," wages, and working conditions in the plant including the elimination of racial discrimination; whether Respondent made uni- lateral changes of wages and conditions of employment; ' The Union filed the charge on September 19, 1968. 169 NLRB No. 70 FARMERS' COOPERATIVE ASSN. and whether Respondent engaged in numerous 8(a)(1) violations including threats, interrogations, and promises of benefits. After the hearing the General Counsel and Respondent filed helpful briefs which have been carefully considered. Upon the entire record and my observation of the wit- nesses, I hereby make the following: FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT Respondent, a Texas corporation with its principal of- fice and place of business in Lubbock, Texas, is engaged in compressing, processing, shipping, and storing cotton. During the year, prior to the issuance of the complaint in November 1966, Respondent manufactured, sold, and distributed at its plant2 in Lubbock, Texas, products valued in excess of $500,000, of which products valued in excess of $50,000 were shipped directly to States of the United States other than the State of Texas. Respond- ent admitted, and I find, that Respondent is and has been at all times material herein an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION United Packinghouse, Food and Allied Workers, AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The Setting; and Chronology During its busy season from about September to February, as the newly harvested cotton is coming into the warehouses, Respondent employs up to about 550 employees. During the off season, from about February to about September, this number is reduced to about 85 to 100 employees. A high percentage of the employees are from the minority groups in the West Texas area; they are Negroes or Latin Americans. Within the parlance of the area a person is a Latin American, or "Mexican," ac- cording to lineage, even though he was born, raised, and schooled in this country. The record showed that a prevailing hope among Latin American seasonal em- ployees was that they obtain year-around employment from Respondent. At an election conducted by the Board's Regional Director on December 17, 1965, a majority of the em- ployees in a production and maintenance unit selected the Union as their bargaining agent. The Union was certified on December 28, 1965. Between February 1 and June 16, 1966, representa- tives of the Respondent and the Union met and negotiated some 13 times in 12 days. On June 16 and 23, the employees voted to strike on the grounds that the Company was not negotiating "justly." The Union's bargaining committee was given authority to call the strike. It called the strike on Sep- tember 13, 1966, at which time a "big majority" of the employees walked out on strike. The strike was still on at the time of the hearing herein in January 1967. -'There were four warehouses, all referred to herein as the plant. 291 On July 4, 1966, Respondent unilaterally gave the em- ployees a paid holiday. Between the strike vote in June, and the strike call in September, on August 24, Respondent made the Union a written offer of a 10-cent wage increase and almost simultaneously assembled all the employees, fed them a "dinner," and talked to them about the offer. After discussing the offer with the Union on September 1, the following day, September 2, Respondent put a 10-cent wage increase into effect. Between the strike vote and the strike, and particularly during the several weeks just before the strike, Respond- ent engaged in numerous interrogations, threats, and promises, in an effort to undermine the Union's bargain- ing power and its capacity to mount a successful strike. The Union and the Company held two more negotia- tion sessions, one on September 1 and the other on December 29. No contract resulted. As has been seen above, the Union filed its 8(a)(1) and (5) charge herein on September 19. B. Interrogations, Threats, Promises, and Underminings Almost all of the General Counsel's testimony set forth below in this section of this Decision was undenied and uncontradicted. On the first day of Edward Sanchez' employment, in early August 1966 when Sanchez asked Respondent's general manager, Tom Brown, for a year-round job, Brown replied that he could not tell him anything about that. On September 9, 4 days before the strike, Brown re- minded Sanchez that he had earlier asked for full-time employment, said that he was ready to offer Sanchez a full-time job, and said Sanchez could consider himself a permanent employee as long as he did not go out on strike. Then Brown told Sanchez to be sure to tell the members of his carpool what Brown had said. Sanchez carpooled about 40 miles each way with some six others. A few days before, Assistant Manager Rex McKinney told Sanchez that if there was a strike, the Company would probably hire some of the men back but not all of them, and that Sanchez (who had indicated he was not going to join the strike) would have a good chance for a year-round job. On about September 1, Plant Superintendent Burl Smith told Sanchez that he had a good change for year- round employment if he did not go on strike, and that if enough of them stayed in and worked, after the strike they could "petition and vote the Union out." From the above it appears that during the period just before the strike, Respondent's top three supervisors in the plant each expressly or impliedly promised permanent employment to a new employee if he did not join the, im- pending strike. The general manager told him to spread the word. The assistant manager threatened job loss to some of those who struck. The plant superintendent en- couraged not striking so that employees could petition and vote the Union out. By these promises and this threat and by encouraging employees to petition and vote the Union out, all designed to weaken and undermine the Union and to discourage employee support for the Union and the strike, Respondent revealed its deep hostility towards the Union, and interfered with, restrained, and 350-212 0-70-20 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerced employees in the rights guaranteed in Section 7 of the Act, and thereby violated Section 8(a)(1). During the same period, about a week before the strike, another high official, Chief Engineer Pickett, asked em- ployee Joe Flores if he was going out on strike or was going to stay with the Company. Flores replied he was going on strike if the majority struck. Pickett named four employees who were going to stay with the Company. Flores called over two of the named employees, who stated that they were going to strike if the majority struck. During the conversation Chief Engineer Pickett said that he hated for them to be out of a job. In expressing the wish that they would stay with the Company, Pickett said that he and (controller and office manager) Bloodworth and (general manager) Brown were trying to arrange to give them a guaranteed weekly salary of $100 or $125 if they did not go on strike. Some six employees were paid a weekly salary, and all of them were "Anglos." Although Pickett denied some of the above testimony, by his demeanor Flores impressed me as an honest and credible witness and I credit Flores' testimony. By inter- rogating Flores as to whether he was going to join the strike, thereby reasonably tending to interfere with the exercise of Section 7 rights; by telling employees he hated to see them out of a job, thereby impliedly threatening them with job loss if they struck; and by telling hourly paid employees the Company was trying to arrange to pay them a weekly salary if they did not strike; Respond- ent further undertook to weaken and undermine the Union and to discourage further employee support for the Union and the strike; Respondent thereby further violat- ing Section 8(a)(1) of the Act. About a week before the strike Supervisor Holden asked C. R. Gonzales what he was going to do. Gonzales replied that he was going to strike. Holden replied that if he went out on strike he would not have a job any more. Holden asked him how much he was making. When Gon- zales replied $1.70, Holden replied that if they had not started this union, business Gonzales could be making $1.90 an hour. About 2 weeks before the above conversation Super- visor Holden told employee Hernandez that the men could still vote the Union out and that Holden would bet that if they did vote it out they would get about a 20-cent raise. Holden's inquiry as to what Gonzales was going to do, obviously relating to the strike and so understood, reasonably tended, under all the facts of this case, to in- terfere' with, restrain, and coerce employees in the exer- cise of the rights guaranteed in Section 7 of the Act, Respondent thereby further violating Section 8(a)(1). Holden's remark to Hernandez was more than an expres- sion of opinion and amounted, under all the facts of this case, to an'implied promise of a raise if the Union was eliminated.. By this promise, clearly designed to un- dermine and defeat the Union, Respondent further vio- lated Section 8(a)(1) of the Act. In addition, Holden's re- mark 'encouraged employees to vote the Union out, Respondent thereby further interfering with the exercise of Section 7 rights and thereby further violating Section 8(a)(1) of the Act. On about July 1, Supervisor Lattimer asked employee Fernando Gonzales how the meeting went the night be- fore. Without replying Gonzales walked into another room. Supervisor Lattimer followed him into the other room and said that he had asked Gonzales a question and he had not answered. Then Lattimer said that he was on Gonzales' side. They then talked for a few minutes about what benefits the employees hoped to get from the Union. Gonzales told Supervisor Lattimer what he was earning, and that he thought it was unfair "for us being there that long and not earning a compared salary or getting com- pared benefits or securities like other people were getting." Gonzales was chairman of the employees' negotiating committee who assisted the union representa- tive at the negotiations sessions. Upon the entire record it is clear that the "us" in the phrase quoted above referred to the Latin American employees, and that the "other people" referred to were the "Anglos," the word used in West Texas to cover those who were not Latin Americans or Negroes. Under all the circumstances of this case Supervisor Lattimer's interrogation as to how the meeting went the night before, clearly referring to a union meeting and so understood, and Lattimer's pursuing the matter further and pressing for an answer, resonably tended to interfere with, restrain, and coerce employees in the exercise of the rights guaranteed in Section 7, Respondent thereby further violating Section 8(a)(1) of the Act. C. The Violations of Section 8(a)(5) 1. Respondent's intent not to enter into a contract with the Union, and its bargaining in bad faith Respondent's efforts and intent to undermine and weaken the Union, expressed in various ways by various supervisors, have been seen above. Its intent not to enter into a contract with the Union was revealed through re- marks of its chief engineer to a group of employees and of a foreman to an employee and through its dealings with the Union on wages, including "costs," or money, items. 1. During about the first week in August, when a group of Latin American employees went to Chief En- gineer Pickett to protest the treatment of one of their number, after discussing the matter Pickett told them he knew they were for the Union and that he was dead set against it. Two employees, Flores and Arias, credibly testified that Pickett told them that he had talked with General Manger Tom Brown (the "big boss" of Respond- ent's operations), and that Brown had told him that he would never sign a contract with the Union. Although Pickett admitted that he told a group of employees that he had heard that Brown was not going to sign a contract with the Union, Pickett testified that he also told the group that Brown did not tell him that. 2. On about August 23, when Respondent presented its 10-cent wage proposal orally to the employees and by letter to the Union, Foreman Bartlett told Employee Flores, according to the latter's credible, undenied, and uncontradicted testimony, that "Tom Brown was going to give us a 10-cent raise even if the Union accepted it or not, that he was running that place and no damn ... union was going to run that place ...." "He said to hell with the Union." When Flores asked Bartlett why Bartlett was telling Flores this, Bartlett replied that "Tom Brown told me to tell you ... he's probably mad." Bartlett's undenied direct quotation from General Manager Brown is weighty evidence as to Brown's deep hostility and resentment toward the Union and as to Brown's intent not to bargain in good faith with the Union. In view of this undenied testimony, and as Flores FARMERS' COOPERATIVE ASSN. and Arias impressed me as credible witnesses, I credit their testimony that Pickett told the group of employees that General Manager Brown had told him he would never sign a contract with the Union. 3. According to credible, undenied, and credited testimony, on about July 1, Supervisor Lattimer told em- ployee Arias that the union "was no good." Lattimer con- tinued, "you are a good crew-cut boy, and I think the boys will follow you. I think you are a good leader and I think you can get the boys to follow you and go to Mr. Brown and ask for the things you want; you don't need no unions." Arias replied that they had already talked to Brown several times about the things they wanted and that Brown "didn't pay us no mind." Lattimer's state- ments were additional evidence that Respondent was seeking to undermine and weaken the Union and sought to deal directly with the employees rather than with the Union. 4. Respondent's attitude toward the Union was early disclosed by its treatment of two members of the em- ployees' negotiating committee during the early months of the negotiations. There were some five employees on this committee, four of whom testified in this proceeding. The two who impressed me as the strongest characters were Fernando Gonzales, the chairman of the committee, and Joe Rogers. Both were Latin Americans. Both at- tended most or all of the negotiation sessions, which were held on February 1, 23, and 24, March 4 and 11, April 6, 7, 8, 21, and 22, May 3, June 16, September 1, and December 29, 1966. The morning after the first session, on February 2, Chief Engineer Pickett, under whom they worked, sent Gonzales and Rogers to work outside where it was "bit- terly cold," under another foreman. Gonzales was kept out there for 2 months, the winter months of February and March. Rogers was kept out there about 3 weeks. He was paid at his regular rate of pay but lost 2-1/2 hours per day. Both of these men held inside skilled jobs running the machines that pressed the bales of cotton. They were lever pullers at $1.70 per hour. Both had worked for Respondent full time for some 12 years. Gonzales had not been sent out on that outside job for 10 years. Pickett told Rogers he was sending him outside because he needed to have a man available at all times to operate Rogers' press and Rogers would be absent some "attend- ing meetings." Pickett knew Gonzales was on the negotiating committee because Gonzales had asked Pickett's permission to attend the first session the day be- fore. Pickett told' Gonzales he was sending Rogers out- side because Rogers was a loud-mouth who claimed he could do anything. Pickett told Gonzales he was sending him out because be knew he could do the job. The outside job, "flagging" bales of cotton, involved reading and com- paring large numbers. Pickett testified that he selected Gonzales and Rogers because they were the best men with numbers. Gonzales testified his 13-year old son could do the flagging job. Pickett admitted this was the first time he had ever sent these two men out to the flagging job since he had become their supervisor in 1958. When Pickett selected these two for the flagging job he kept on the press four men, none of them on the negotiat- ing committee and two of them younger in seniority than Gonzales and Rogers. 7 When Respondent rejected funeral leave pay, the Union observed that the Company was the largest cotton compress in the world, that its com- petition gave funeral leave, and that Respondent would not go broke. Respondent explained that Respondent's position was not a plea of pover- 293 Pickett admitted that every year he sends some men out to do the flagging. If he selected them every year accord- ing to their capacity with numbers, the record failed to ex- plain why he had not ever sent Gonzales and Rogers out during the 7 years between 1958 and 1965, when, presumably, they had the same capacity with numbers that they allegedly had in 1966. In view of this fact, of the inconsistent reasons he gave the men and in his testimony for his actions, and as the entire record strongly indicates that Pickett was strongly antiunion, I believe and find that Pickett selected Gonzales and Rogers for the outside as- signment in the bitter cold the day after the negotiating started and kept them there during the early negotiation sessions , in reprisal against the Union and in reprisal against these two men for serving on the bargaining com- mittee, in order to weaken their resolve to help the Union in its bargaining with the Company, and in order to weaken their sympathy and support for the Union. By this assignment of these two members of the negotiating committee at the time Respondent further displayed its contempt for the Union and the idea of collective bargain- ing, discriminated against them, and further interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act, Respond- ent thereby further violating Section 8(a)(1). 5. Respondent was represented at the negotiation ses- sions by three lawyers from the same law office in Fort Worth, Texas, usually one at a time. General Manager Brown, who had no intention of ever signing a contract with the Union, did not attend after the first or second session. During the negotiations Respondent's lawyers discussed the Union's proposals and presented proposals and counterproposals on behalf of Respondent. The parties discussed the usual subjects discussed in collec- tive-bargaining sessions between managements and unions. As time went on tentative agreements were reached on a few issues and on parts (but not all) of many issues. However, throughout the negotiations up to Sep- tember 1 each of Respondent's three lawyers took the position that Respondent was not willing to increase its cost of doing business, and they regularly rejected as a "cost item" every union proposal which involved the pay- ing out of money, however little. Thus, having at the third session on February 24 announced its position that it could not agree to anything that increased its cost, on that day or thereafter Respondent rejected as cost items the following and others: pay during funeral leave,3 overtime pay after 40 hours in a week and 8 hours in a day, holiday pay, retirement, wage and shift differential' pay, guaran- teed time for those reporting for work, guaranteed pay for 40 hours per week, sick and accident pay, separation pay, pay for jury duty, meals and lodging for truckdrivers, va- cation pay, adjusting grievances on work time, free meals for employees required to work specified long hours, furnishing of tools by the Company, a clothing allowance, a life insurance plan. The only exception to the above is that on April 22, at the 10th bargaining session, after summarizing Respond- ent's position against increasing its costs, its principal at- torney, Mr. Price, offered 2 hours' call-in and report-in pay, jury pay, and one paid holiday, conditioned upon the Union's acceptance of the rest of Respondent's ty nor a plea that it could not afford to provide funeral leave, but that fu- neral leave was "simply an additional cost which the Company, in the ex- ercise of its best business judgment, did not feel appropriate to add at this time." 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proposals. The Union declined. Then Price upped his offer to 4 hours report-in pay and two paid holidays. The Union declined. Price said he would leave his revised holiday offer open until April 27, at which time it would be withdrawn if the Union did not accept it by then. At the first negotiation session the Union orally and in writing proposed a substantial wage increase across the board, and said that it would make a specific wage proposal later. At the second session Respondent proposed substantially the existing wage scale. The discussion during all the sessions centered more on noneconomic subjects, occasioned largely, no doubt, because of Respondent's position throughout the negotia- tions against any increase in its costs. At the April 21 ses- sion Respondent's Attorney Price said that, concerning economic issues, Respondent proposed to keep its costs the same and did not want to increase them on fringe benefits or wages. There were two negotiation sessions on May 3. At the night session Respondent's attorney went through Respondent's last proposals and said that on each one this was Respondent's final offer. He indicated that the revised holiday offer was withdrawn. He said the Com- pany would not agree to a wage increase. When the Union pointed out that it had not yet submitted any wage proposal, ,Respondent's attorney said, "we are willing to listen to anything you have, but our position is final...." On this note the session ended. At the next session, on June 16, Respondent presented its final position in writing. The union spokesman then stated a number of items the Union wanted included in a contract, including a 27-cent-per-hour general wage in- crease. This was the Union's first specific. wage proposal. The, union spokesman pointed out that there had been no bargaining on wages. Respondent's attorney said that the subject of wages had been bargained on and that the Company had made its position clear on all matters in- creasing costs. He said the Company did not want to in- crease its costs and in its best judgment did not feel that it could. The Union asked if the Company was pleading inability to give a wage increase. Respondent replied that "these decisions were based on uncertainties of the fu- ture, and that they just didn't have a crystal ball to look into the future." At a June 16 union meeting after the June 16 bargain- ing meeting, union representatives told the employees of the Company's final offer and explained the outstanding disagreements between the Union and the Company over contract terms. The union representatives stated that Respondent would not talk about some items that had been raised and which were important to the men. The union representatives also expressed the thought that Respondent did not intend ever to enter into a contract with ' the ' Union. Then upon a motion to strike on the ground the Company was not negotiating "justly," the employees present voted unanimously to strike. A week later, at another union meeting on June 23, the employees voted 99 to 1 to give the Union's bargaining committee authority to call the strike. The strike was called on Sep- tember 13, 1966, a "big majority" went on strike, and the strike is still on. During, the negotiations and without first informing the Union it planned to do so and giving the Union an oppor- tunity to bargain concerning, Respondent unilaterally give its employees a paid holiday on July 4, 1966. Respondent closed down the plant and paid the em- ployees for the day. This was only the second time in 16 years that Respondent had given the employees July 4 off, the other time having been in 1963. Giving this paid holiday during the beginning in 1966 without apprising the Union and giving it an opportunity to bargain con- cerning it, when there was no impasse in the negotiations, was reasonably calculated to undermine the Union as the bargaining agent and was a refusal to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. There having been no bargaining since June 16, on Au- gust 24 Respondent's principal attorney, Mr. Price, sent a letter to the Union reading as follows: The Company proposes to increase wages across the board 10 cent per hour, effective September 2, 1966. This increase is proposed without prejudice to bar- gaining on wages or any other subject. If you wish to meet with Company representatives concerning this proposal, please inform the under- signed. At noon on August 24, without first giving the Union an opportunity to bargain with it concerning the proposed increase, Respondent assembled all the employees in the Company's board of directors' room, fed them a "dinner," and talked to them about the proposed wage in- crease. Almost immediately after the dinner meeting, and without first giving the Union an opportunity to bargain concerning its wage proposal, Respondent posted Price's August 24 letter on its bulletin boards. Present at the August 25 dinner were about 150 to 200 employees, all of management, and Respondent's prin- cipal lawyer. General Manager Brown introduced Attor- ney Price. Price gave the assembled group a quick sum- mation of the bargaining negotiations and stated how many issues they were in disagreement on. He cited wages as one of those issues. He said that in the negotia- tions the Union had demanded and insisted upon a wage raise but that the Company had opposed it because of the uncertainties of business prospects. He said that since the last negotiation session the Company had closed its books on June 30 and had had an opportunity to look into future business prospects, which it thought would be good and would warrant a wage increase. He said the Company was going to propose to the Union a wage in- crease of 10 cents an hour, that the Company and the Union would have to discuss it and see whether they agreed on an increase and if so in what amount. Then Price described to them their individual rights in the event of a strike. Several General Counsel witnesses attributed to Brown the statements that he would grant a wage in- crease regardless of what the Union wanted, that "to hell with the Union," that he was running the business. Several Respondent witnesses denied this. It seems un- likely to me that Brown would have talked as loosely as this to his assembled employees upon such an occasion, even though he talked this way to at least two supervisors under him, Pickett and Bartlett, and they repeated it to employees, as has been seen above. It seems probable to me, and I find, that the employees were mistaken in re- membering that they heard these sentiments expressed at the August 24 meeting. FARMERS' COOPERATIVE ASSN. 295 The day after the dinner meeting, on August 25, the Union's district director, Thomas, wrote Attorney Price acknowledging receipt of his letter, protesting Respond- ent's having met with the employees and proposing a wage increase to them without first making the proposal to the Union. The letter said, "You are aware the Law does not permit an employer to bargain individually with its employees in derogation of its duties to bargain with the certified collective bargaining agent." The Union of- fered to meet with Respondent on August 30 and 31 and September 1 "to bargain on wages and other conditions of employment." Respondent and the Union met again on September 1. Respondent's Attorney Bennett opened the meeting with the observation that he assumed the Union was here to talk about the proposed wage increase. The Union's dis- trict _ director, Thomas, replied that the Union was prepared to talk about wages and other subjects. Bennett said that he understood the Union had rejected the Com- pany's wage proposal which it proposed to put into effect the following day, September 2. Thomas then read his August 25 letter to Price. Bennett asked if the Union re- jected the 10 cents. Thomas replied that the Union had previously proposed a 27-cent-an-hour wage increase and that it proposed that a 27-cent increase be put into effect September 2. Bennett then said the Company doesn't feel it can go more than 10 cents because it does not know what the future holds. When Thomas observed that in previous sessions the Company had claimed that it could not afford any increase, Bennett replied that, in previous sessions the Company did not feel it could pay any more, but that after taking a "long-range look into the future" it felt it could go 1'0 cents. Thomas said he did not agree with the 10 cents but that the Union was flexible on 27 cents. Thomas then enumerated as still in dispute, among other items, holiday pay, sick pay, funeral pay, guaran- teed workweek, arbitration and grievance procedures, seniority, job posting, and paid hospitalization and vaca- tions. Respondent had nothing to say on these items. To be noted is that throughout the negotiations Respondent had rejected most of these items as "cost" items. The meeting adjourned with the Union telling the Company that it would present the Company's position to the em- ployees. Before the Company had a chance to hear further from the Union concerning the reaction of the employees, and with no impasse having been reached, Respondent, without further notice to the Union, put the 10-cent wage increase into effect on September 2. It appears clear from all of the above, and I find, that Respondent made its 10-cent wage offer not with an in- tent to negotiate a, collective agreement with the Union that would include an agreed-upon wage increase and agreed-upon other items theretofore consistently rejected as "cost items." Rather the evidence proves that Respond- ent's wage offer was a device to ensure that there would be no meaningful negotiation on wages and no contract, and that the increase would go into effect without a con- tract, thereby undermining and defeating the Union as the bargaining agent in the plant. This was the Company's first and only wage offer since the negotiations had begun on February 1, some 7 months before. It was made as a crescendo towards a strike was building up in the plant, as Respondent well knew, and was a strike-prevention measure. If it had been a sincere wage offer for collective- bargaining purposes no reason appears why Respondent set an effective date of only a week after the offer was made or why in its offer it set an effective date at all. If it had been a bona fide wage offer designed to further and not to defeat collective bargaining and the Union as a bar- gaining agent, no reason appears why Respondent did not present the offer to the Union prior to staging a "dinner" and presenting it directly to the employees, and no reason appears as to why the Respondent found it necessary to present the offer to the employees at all. Clearly no impasse had been reached prior to the Sep- tember 2 effective date of the raise. Having given the em- ployees a paid holiday July 4 without first mentioning it to the Union, and thereby preparing them for future uni- lateral action, a few weeks later it announced its intended wage increase to the employees publicly before negotiat- ing with the Union, thereby putting intensive pressure upon the Union to accept the "proposal." Further, by proposing an effective date a week later, Respondent was trying to establish in advance when an impasse would be reached. A week was much too short a time to allow the Union to consider this first wage offer in 7 months and its impact upon the always rejected "cost" items. Giving the Union so short a time to consider this "proposal" was in itself an element of bad faith and was proof that no im- passe in good-faith negotiations could occur. There can be no impasse without good-faith bargaining. Further, the record proved that Respondent went to the September 1 session with the Union with a take-it-or- leave-it attitude and with no intent to negotiate an agree- ment with the Union and no intent to bargain concerning the numerous "cost items" which it had rejected throughout the negotiations for alleged business reasons. Now that business reasons allegedly permitted upping its costs, Respondent had a duty which it never fulfilled, to bargain meaningfully with the Union concerning these "cost items." Upon the preponderance of the evidence in the entire record considered as a whole I conclude and find that Respondent never bargained in good faith with the Union concerning wages and "cost items," that the September 2 wage increase was made unilaterally during negotia- tions when no impasse in the negotiations had been reached, and that by this bad-faith bargaining and by this unilateral wage increase Respondent refused and now refuses to bargain in good faith with the Union, Respond- ent thereby violating Section 8(a)(5) and (1) of the Act. 2. The refusal to bargain on racial discrimination practices a. Concerning not paying lower paid employees at higher rates while performing higher jobs In addition to refusing to bargain in good faith concern- ing economic matters, Respondent also refused to bargain in good faith with the Union concerning the elimination of discriminatory racial practices going on in the plant. Respondent bargained with the Union on the inclusion of a nondiscrimination clause in the contract, while simul- taneously refusing to bargain meaningfully and in depth concerning actual racial discrimination practices then going on. After much discussion at several conferences, Respondent finally agreed to include a nondiscrimination clause in a contract. However, it never would accept ar- bitration as the final step of the grievance procedure. It held out for the plant manager's decision being final on all grievances. Late in the negotiations, it expressed willingness to permit a party aggrieved by the plant 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD manager's decision to go to civil court if he felt the con- tract had been breached, or to strike with limitations. This meant that on grievances involving the elimination of practices involving racial discrimination the plant manager's decision was to be final, subject to the right to go to court for breach of contract, or to strike giving the Company notice of its intent to strike within 10 days of its receipt of the general manager's decision and actually commencing the strike within 30 days. Expressed willingness to enter into a nondiscrimination clause so robbed of significance by the grievance machin- ery was scarely a substitute for bargaining with the Union on racial grievances actually raised during the bargaining conferences. In fact Respondent's cavalier treatment of the grievances made a mockery of its alleged willingness to enter into a nondiscrimination clause at all. There can be no doubt on this record but that Respond- ent accepts and shares whatever attitudes and assump- tions prevail in West Texas toward Latins and Negroes. Although the matter was not mentioned during the negotiations, the manner in which Respondent takes its employees on fishing trips reveals the accuracy of the sentence just above. The record suggests that the fishing trips are an annual affair. The employees are broken into three groups. First, Respondent takes office personnel and Anglo employees and their wives on a fishing trip; net it takes Anglo employees who do not wish to take along their wives; next it takes Latin and Negro em- ployees without their wives. In 1965 and 1966 the Anglo trips were to a point about 700 miles away and lasted the best part of a week; the Latin-Negro trips were to a point about 300 miles away and lasted no more than 3 or 4 days. Respondent paid for transportation, meals, and lodging. Salaried personnel were not docked for worktime on the trips, but the record does not show that hourly paid employees were paid for worktime spent on the trips. All of the Union's negotiating committee, including its field representative and the employees' committee, were members of minority races, a fact which could not have escaped Respondent's negotiators. Field Representative Marion G. Ramon, Fernando Gonzales, Joe Rogers, and Jesse Ruiz all indicated by their testimony that they were regarded in the area as Latin Americans. All were on the negotiating committee except Jessie Ruiz, whose brother Steve Ruiz was on it. Charlie Ray Powell is a Negro. Although there is no specific testimony about Bartola Esparanza's race, it is a fair conclusion in all the circum- stances that he is a Latin. An answer of Jessie Ruiz reflected the inner conflict under which a Latin in the area labors. He was born in the United States and has spent all his life in and around West Texas. Asked his race he replied, "Well, I am a white just as much as anybody else, I would guess, but I am considered as Latin-American." He later testified that of the three commonly known races in the West Texas area, Negro, Latin American, and White, he!: is Latin American. The great sense of inferiority of the Mexican in the area, which could not have escaped Respondent's skilled and sophisticated negotiators at the bargaining table, was shown by answers on cross-examination of the chairman of the negotiating committee, Fernando Gonzales. Although by his demeanor he impressed me as one of the natural leaders of, the Latin group of employees, an im- pression corroborated by his selection as chairman of the negotiating committee, he was not inclined to stand up for his rights when, the morning after the first bargaining ses- sion, which he had attended, he was sent out into the cold to perform the "flagging" job. Asked on cross-examina- tion if he asked why he was being sent out there, Gon- zales replied, "You don't ask questions there, sir; you just only do what you are told." Later he explained that "I didn't challenge the Company. I told the Union representa- tive what had occurred with me, with me and Mr. Rogers, but I never did challenge the Company at the time I was told, and I repeat, you don't ask anything. If you are as- signed to do a job, you just get out and try to do a job as you are told to do so." This same, sense of inferiority and docility on the part of the Mexican group was further disclosed through the testimony of Polo Arias, whose testimony, appearance, and demeanor indicated that he is a Latin American. Arias was removed from a lever pulling job to a job on which he worked fewer hours and therefore lost income. He testified on cross-examination that he did not ask why he was removed, that "in a company like that you don't ask questions, you just do what they tell you." Elaborat- ing, a little later he repeated the substance of this answer, and added: "... I am a grown man and I know, you know, what you are supposed to do and what you are not supposed to do, even if you have got the right to do it." He added that he knew he would not gain anything by asking. in view of the racial sensitivities in the plant, which Respondent's officers and supervisors in the plant obvi- ously knew well, bargaining in good faith by Respondent meant that Respondent must bargain in depth and meaningfully concerning any and all racial questions which were alluded to by the union negotiators during the bargaining. Respondent's duty was and is to discuss with an open mind conditions as they actually exist in the plant, including racial conditions and any racial dis- crimination. The Board's role is not to require the elimination of racial discrimination, but to require good- faith bargaining on this condition of employment, as well as on all other wages, hours, and conditions of employ- ment. Employees were assigned to crews under a foreman and somehow, at some point, were frozen into a classifi- cation in a more or less specific job at a low wage. Most of the jobs paid $1.50 or $1.60 per hour. However, all, or most, of the employees were subject to being transferred to other jobs under other foremen for longer or shorter periods of a few hours to several weeks. They continued getting paid at their classification regardless of whether the job they were performing was in a higher or lower paying classification. These transfers gave many em- ployees training on other jobs than their own, and whetted their appetite for a better, higher paying job. There were no announced standards for selecting an em- ployee for a higher paying job than the work he was regu- larly on, nor was there any time limit for performing the higher job after which he would be considered to be in the higher classification and begin to draw the higher pay. As appears below, the Union's proposals were designed to change these conditions, and Respondent's positions were designed to retain them. Jesse Ruiz has worked for Respondent since 1961. In 1964, he served as an off-bearer, moving bales of cotton on a 2-wheeled vehicle with handles. He has not worked as an off-bearer on a regular basis since 1964. He served primarily as a weigher during the busy season from early August 1965 until his layoff in early March 1966. During this period of 7 months, he was paid only $1.50 an hour, which was the rate the Company paid those working on FARMERS' COOPERATIVE ASSN. the band table, where Ruiz worked just before he began working regularly as a weigher. That he was considered as a weigher for the group with which he was working was shown not only by his undenied testimony to that effect but also by the fact that if there was some weighing to be done when he was temporarily working at something else, it was the foreman of the group, and not some other em- ployee, who substituted for him at the scale. During the 7 months Ruiz served as a weigher at $1.50, there were five or six other weighers, all of whom received $1.80 an hour for performing virtually the same job he performed. They were weighing the cotton when it came into the warehouses and he was weighing it as it was getting ready to go out; but whatever difference there was between the two places in duties and responsibilities was not recognized in the classification scale,, for Re- spondent had only the classification of weigher, and not of reweigher. Of the five or six other weighers during this 7-month period, one was a Latin American, all the others Anglos. This Latin, Pedro Aguirre, had somehow gotten up to $1.80 an hour classification. He was listed as a weigher at $1.80 an hour on a list of employees dated February 1, 1966, which Respondent gave to the Union at the first bargaining session on that day. On a list dated February 24, 1966, which Respondent supplied to the Union, Aguirre was classified as a proof checker. Proof checkers were also paid $1.80, Respondent's highest wage. Aguirre had reached the top wage, and he was transferred laterally at the same wage. According to Respondent's lists, of 200 employees on February 1, and of 117 employees on February 24, on both dates only some 16 employees were classified in jobs paying $1.80. Of these 16 employees, only 3 of them bore names suggesting they were Latins - Aguirre, Vidourre, and Garza. One name was added on the February 24 list. The remaining 14 names appear to have been Anglos, although there was no proof that some of them were not Latin or Negro. These names were Duckett, James Home, Floyd Johnson, Burt Long, Mar- vin Lehr, Alvie' Melton, Saunders, Temple Sparks, Smith, Carnes, Jerry McAda, Terry McAda, Wilhite, and Beddingfield. It is inconceivable on this record that many of these top paying jobs were held by Latin or Negroes. On the entire record I conclude only that most of the $1.80 men were Anglos and that the $1.80 jobs were con- sidered by the Latin group as Anglo jobs. They were coveted by the Latin group because they paid more money. In September 1965, Jesse Ruiz spoke to his foreman about getting more money since he was receiving $1.50 an hour and other weighers received $1.80. His foreman never spoke to him about raising his wages, but instead threw him a bone; he permitted Ruiz to work an extra hour per week, for which he received an extra $1.50. During the 7 months Ruiz was put on the scale as a weigher, he was given other duties, including off-bearing when there was no weighing to be done. As has been seen above, it was Respondent's custom to use men on dif- ferent jobs, and this practice presumably included the other weighers who were receiving $1.80 an hour. Ruiz convincingly testified on cross-examination that between August 1965 and January 1966, when he was weighing, no supervisor knew that he was a union man. It is clear on this record, and I conclude, that the only reason Respondent paid Ruiz $1.50 an hour for 7 months 297 while he was doing a $1.80 job which five or six Anglos were concurrently paid $1.80 for performing, was because Respondent considered Ruiz and the other minority employees as docile, cheap labor, and in order to keep them in this condition of servitude. This was the rankest kind of racial discrimination. When the Union presented this Ruiz situation to Respondent's attorneys at the bargaining table, Respond- ent's first reply was that Ruiz was possibly not qualified. When the Union replied that Ruiz was doing the job without any instructions, Respondent's attorney replied he would check into it. At the next session the attorney said Ruiz was misclassified on a list of employees Respondent had previously given the Union, where Ruiz was classified as a weigher. At this session Respondent's attorneys gave the Union another list of employees on which Ruiz' classification was listed as "lift truck clamps." Ruiz' name was crossed off for this classifica- tion and his name was handwritten in under the classifica- tion as "off-bearer." As has been seen above Ruiz had not worked regularly as an off-bearer since 1964. By the April 7 bargaining conference, Ruiz had been laid off. At that conference the Union pointed out that since the Union's protest in February, Ruiz had continued weighing at the same wage and that the only change in his status was on the classification list, not in his wages. Respondent's negotiator replied that since Ruiz was laid off there was nothing they could do about his situation. When on June 16, the Union asked if the Company was going to continue its practice of paying different rates to different employees performing the same job, because of race, Respondent replied that it knew of no such dis- crimination. The discussions about Ruiz arose in connection with the Union's efforts in the negotiations to get Respondent to change its practice of using employees in higher clas- sifications and not paying them for it. The Union sought the higher pay for all hours worked in the higher classifi- cation. The Union also sought to have employees moved up to higher classifications by seniority and to have them paid in the higher classifications as of the date they began work in those classifications. The Union also sought post- ing of all jobs opening up for 7 days or longer, and bidding by employees interested. These subjects at base involved racial discrimination, as Respondent well knew, and as those in the plant well knew concerning the Jesse Ruiz situation for 7 months. If Respondent's negotiators had made a real investigation concerning Ruiz in the plant, they would have discovered the racial overtones in- volved. Respondent consistently refused to agree to pay the higher rates on temporary transfers, consistently refused any meaningful bargaining on seniority as it related to higher classification rights of employees, and consistently refused to agree to job posting and bidding. Respondent's constant position on all these matters was that qualifica- tions should govern and that Respondent shall be the judge of qualifications. Although Respondent was willing to let seniority govern where two were equally qualified, here also Respondent was to be the sole judge of qualifi- cations. Respondent gave no meaningful reasons for its positions on these issues. The basic reasons were that the Union's proposals challenged the status quo which pro- tected the practice of racial discrimination, and Respond- ent did not intend to change that practice. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the above considerations and the preponderance of the evidence in the entire record considered as a whole, I believe and hold that Respondent negotiated as it did considering not paying employees the higher rates of jobs they are told to perform, and refused to pay Jesse Ruiz $1.80 an hour for 7 months while he was performing a job classified and paying $1.80, because it considered Latin and Negro employees as docile, cheap labor, and in- tended to keep them in this condition of servitude; Respondent thereby refusing to bargain in good faith con- cerning the elimination of existing racial discrimination in the plant and thereby further violating Section 8(a)(5) and (1) of the Act. b. Concerning regular overtime on the sprinkler system Respondent's four warehouses are equipped with a sprinkler system for fire protection. Prior to 3 years ago it had seven fireguard stations, and on nights and weekends used employees on an overtime basis as fire guards or watchers. All three racial groups were given the overtime on a random basis; apparently there was work for all those who wanted the additional income. About 3 years ago Respondent installed an electric alarm system with a panel alarm in the office, and thereafter used only two fireguards on nights and weekends. The two worked on a regular overtime basis nights and weekends. These two guards are Charles Speegle and D. D. Chambers, both Anglos and both regular employees with the Com- pany during the day. Some time "awhile back" Latin Joe Rogers asked his foreman if he could firewatch on Saturdays and Sundays, adding that Rogers needed the money. The foreman said he would look into it. The foreman never mentioned it further, and, consistent with the docility that goes with the prevailing sense of inferiority, neither did Rogers. Rogers has had no overtime on the sprinklers in the last 3 years, although for years prior to that, he shared with others the overtime pay. The Union's original proposal included this clause: "There shall be established equal distribution of all work hours." At several sessions Respondent took a solid posi- tion against this proposal on several grounds. Then twice during the later negotiations the Union, through Latin Rogers, asked that Latins and Negroes be given'some of the regular overtime on the sprinkler panel watch in the office. 'The first time the Company's negotiator questioned whether there was any regular overtime. The next time the question arose, Respondent said it thought the two Anglos who performed this work, Chambers and Speegle, were the most qualified to do it. When, on June 16, the Union asked if the Company was going to con- tinue racial discrimination on distribution of overtime hours, Respondent, replied that it knew of no such dis- crimination. The record did not establish that Chambers and Spee- gle were any more qualified as firewatchers, or any more responsible as individuals, than some of the Latin Amer- icans who appeared before me. The firewatchers had to be alert during their watch for any signal that would in- dicate a fire or that the sprinkler system had been tripped and was sprinkling water on the cotton. When a signal was given, the alarm box in the office indicated which warehouse was involved and called the fire department. The firewatcher was expected to go to the area indicated and do what was necessary. If there was no fire and the sprinklers were running by accident, the guard had to shut them off. There was much testimony, in connection with another subject, as to the qualifications, or lack of qualification, of a number of Latins who were "lever pullers," to set up the sprinkler system after a valve had been tripped and the sprinklers were playing. These men were skilled enough and trustworthy enough to run the expensive presses which compress the cotton, and they have, from time to time, assisted Engineer Pickett through the years in repairing the sprinkler system and setting it up. It was not shown that Chambers or Speegle had any experience along these lines or was as qualified as firewatchers as the Latins. In fact Rogers credibly testified that prior to. the strike Chambers and Speegle could not set a valve. In ad- dition Speegle had the handicap of a seeming illness 'which could have detracted from his effectiveness as a firewatcher. Respondent having during the negotiations told the Union that the Anglos got the overtime on the sprinklers because they were better qualified, at the hearing Respondent's foreman over the firewatchers testified that the reason no Latins or Negroes have done any panel watching in the last 3 years was because they did not ask to. As has been seen above, Joe Rogers asked to. Contra- ry to the fact Respondent's foreman testified that Respondent's practice in selecting firewatchers had not changed. At the hearing Engineer Pickett testified that most of the lever pullers lived in Slayton, Texas, some 20 miles from Lubbock; as though this was a reason why they got no overtime work on the sprinklers. In view of Respondent's self-contradictory statements given to the Union and given in the testimony, as seen above, and as Chambers and Speegle were not proven to be more qualified as firewatchers than the Latins, particularly the Latin lever pullers, who had previously done some of the overtime, I find that in cutting the Latins off from any of the regular overtime work as firewatchers during the last 3 years, and instead giving it all to two Anglos, Respond- ent engaged in racial discrimination against the Latins. It is clear that Respondent did not bargain in good faith with the Union concerning this racial discrimination. Telling the Union, in successive sessions, that it doubted that Respondent had any regular overtime hours, when Rogers and probably every employee-member of the negotiating committee knew to the contrary; that Cham- bers and Speegle were the most qualified when Rogers and Fernando Gonzales knew they were not; and that Respondent knew of no racial discrimination concerning distribution of overtime on the sprinklers; shows an effort or willingness to conceal and no effort to engage in meaningful bargaining toward the elimination of racial discrimination. Upon these considerations and upon the preponderance of the evidence in the entire record con- sidered as a whole I hold that by refusing to bargain with the Union in good faith concerning the elimination of ra- cial discrimination with respect to the distribution of regular overtime on the sprinklers, Respondent further violated and is violating Section 8(a)(5) and (1) of the Act. The General Counsel urged refusal to bargain over the elimination of other racial discriminations in the plant. In my considered judgment the General Counsel's proof was lacking on these additional matters. FARMERS' COOPERATIVE ASSN. 299 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring'in connection with Respondent's opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. Respondent having refused to bargain collectively with the Union as the exclusive representative of its employ- ees in an appropriate unit, I recommend that Respond- ent, upon request, bargain collectively with the Union as the exclusive representative of its employees in the unit set forth herein concerning wages, hours, and other terms and conditions of employment including the elimination of discriminatory racial practices within the plant, and, if an understanding is reached, embody such understanding in a signed agreement. As to the causes of the strike, all the evidence on this subject proved that the strike was caused by Respond- ent's unfair labor practices and that it was an unfair labor practice strike. Thus, on June 16, the union representative reported to the employees Respondent's final position, and informed them that there were many items Respondent would not talk about, including some having to do with racial discrimination. The union representative also reported to the employees that he did not think the Company ever intended to enter into a con- tract because a lot of these items were items common in contracts. The employees then voted unanimously in favor of a strike because the Company was not negotiat- ing "justly." A week later by secret ballot the employees approved by a vote of 99 to 1 a resolution authorizing the bargain- ing committee to call a strike. The bargaining committee did not call the strike until September 13. In the meantime Respondent had unlaw- fully interrogated, threatened, and promised the em- ployees because of their union activities in an effort to un- dermine the Union's bargaining power and its capacity to mount a successful strike. In the meantime, also, Respond- ent had engaged in unlawful, unilateral activity concern- ing the July 4 holiday, and the September 2 wage in- crease. It is clear that all of these unfair labor practices contributed to the calling of and the timing of the strike, and that the strike was therefore caused by the unfair labor practices. I recommend the affirmative relief customarily ordered in unfair labor practice strikes. I recommend that upon their unconditional application to return to work, Re- spondent offer immediate and full reinstatement to their former or substantially equivalent position to all those employees who went on strike on September 13, 1966, without prejudice to their seniority or other rights and privileges, discharging, if necessary, all persons hired on or after that day in order to provide work for the strikers. I recommend also that Respondent make whole all of such strikers for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate them, by pay- ment to each of them of a sum of money equal to that which he normally would have earned, less his net earnings, during the period from 5 days after the date on which he applies or has applied for reinstatement to the date of the Respondent's offer of reinstatement. Any such net earnings shall be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294. Interest shall be added at the rate of 6 percent per annum in accordance with the decision of the Board in Isis Plumbing & Heat- ing Co., 138 NLRB 716. As Joe Rogers lost 2-1/2 hours' pay for each day he was unlawfully on the "flagging" job, and as Fernando Gonzales may have lost the same amount of pay, I shall recommend that Respondent make whole Rogers and Gonzales for any loss of wages suffered by them because of this assignment to the flagging job by payment to each of them of an amount equal to that which he would have earned as wages had two other employees instead of them been assigned to their job and had they continued in their regular functions as lever pullers. Interest shall be added at the rate of 6 percent per annum in accord with the Isis case, supra. In view of the fact that the unfair labor practices com- mitted are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that Respondent be ordered to cease and desist from infring- ing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the foregoing findings and upon the preponde- rance of the evidence in the entire record, I make the fol- lowing: CONCLUSIONS OF LAW 1. Farmers' Cooperative Compress, of Lubbock, Tex- as, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Packinghouse, Food and Allied Workers, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By promising employees permanent employment for not going on strike, by threatening loss of jobs for going on strike, by encouraging employees to petition and vote the Union out, by interrogating employees concern- ing their union activities and their intentions about joining or not joining the strike, by promising a raise if the Union is eliminated, and by other acts, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By refusing.to bargain in good faith with the Union concerning wages, hours, and working conditions, includ- ing the condition of racial discrimination, and by uni- laterally changing wages, hours, and working conditions on July 4 and September 2, 1966, Respondent has en- gaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. The aforesaid labor practices are unfair labor prac- tices affecting commerce within the meaning of Section Q(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the preponderance of the evidence in the entire record in the case considered as a 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD whole, I recommend that Farmers' Cooperative Com- press, of Lubbock, Texas , its officers , agents , successors, and assigns , shall: 1. Cease and desist from: (a) Promising employees permanent employment for not going on strike. (b) Threatening employees with loss of jobs if they go on strike. (c) Encouraging employees to petition and vote the Union out. (d) Interrogating employees concerning their union ac- tivities and their intentions about joining or not joining a strike. (e) Promising employees a raise if the Union is eliminated. (f) Assigning members of the Union's negotiating committee to undesirable positions in reprisal against them and the Union for their assistance to the Union. (g) Refusing to bargain in good faith with the Union concerning wages , hours, and working conditions , includ- ing the condition of racial discrimination. (h) Unilaterally changing wages, hours, and working conditions without giving the Union an opportunity to bargain concerning them. (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist United Packinghouse , Food and Allied Workers, AFL-CIO , or any other labor organization , to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action , which I find will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Packinghouse, Food and Allied Workers, AFL-CIO, as the exclusive representative of the employees in the ap- propriate unit , with respect to rates of pay, wages, hours of employment , and other conditions of employment, in- cluding the condition of racial discrimination , and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer reinstatement to, and make whole , the strik- ing employees for any loss of pay they may have suffered or may suffer in the future by reason of the discrimination practiced against them, in accordance with the recom- mendations set forth in the section of this Decision enti- tled "The Remedy." (c) Make whole Joe Rogers and Fernando Gonzales in accordance with the recommendations set forth in the section of this Decision entitled "The Remedy." (d) Post at its plant and warehouses in Lubbock, Tex- as, copies of the attached notice marked "Appendix."4 Copies of said notice , on forms provided by the Regional Director for Region 16, after being duly signed by the Respondent's representative, shall be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places , including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 16, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith.5 ' 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." ' 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 16, 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 promise employees permanent em- ployment if they do not go on strike. WE WILL NOT threaten employees with loss of their jobs if they go on strike. WE WILL NOT encourage employees to petition and vote United Packinghouse, Food and Allied Workers, AFL-CIO, out of the plant. WE WILL NOT unlawfully ask questions of em- ployees concerning their union activities and their in- tentions about joining or not joining a strike. WE WILL NOT promise employees a raise if the above-named Union, or any other union, is eliminated from our plant. WE WILL NOT assign members of the Union's negotiating committee to undersirable positions because they are assisting the Union. WE WILL NOT refuse to bargain in good faith with United Packinghouse, Food and Allied Workers, AFL-CIO, concerning wages, hours, and working conditions, including the condition of racial dis- crimination in the plant. WE WILL NOT unilaterally change wages, hours, and working conditions without giving the Union an opportunity to bargaining concerning them. 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 or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protec- tion, or to refrain from any and all such activities. WE WILL offer reinstatement to, and make whole, the striking employees for any loss of pay they may have suffered or may suffer in the future by reason of any discrimination practiced against them, in ac- cordance with the Recommended Order of the Trial Examiner. WE WILL make whole Joe Rogers and Fernando Gonzales in accordance with the Recommended Order of the Trial Examiner. WE WILL bargain collectively, upon request, with United Packinghouse, Food and Allied Workers, AFL-CIO, as the exclusive representative of all em- FARMERS' COOPERATIVE ASSN. 301 ployees in the bargaining unit described below with FARMERS' COOPERATIVE respect to rates of pay, wages, hours of employment , COMPRESS and other conditions of employment including the (Employer) condition of racial discrimination , and if an un- derstanding is reached , embody such understanding Dated By in a signed agreement. The bargaining unit is: (Representative) (Title) All production and maintenance employees at our compress and warehouses , exclusive of cler- ical employees , technical and professional em- ployees, guards and supervisors as defined in the National Labor Relations Act. All our employees have the right to form ,join , or assist any labor union , or not to do so. 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, 8A24 Federal Office Building, 819 Taylor Street , Fort Worth, Texas 76102, Telephone 3 34-2921.