Pure Laboratories, Inc.

104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pure Laboratories, Inc. and Local 1199, Drug and Hospital Employees Union, Retail, Wholesale and Department Store Union, AFL-CIO. Cases 22-CA-2990 and 22-CA-3112 June 21, 1968 DECISION AND ORDER BY MEMBERS BROWN , JENKINS, AND ZAGORIA On January 16, 1968 , Trial Examiner William F. Scharnikow issued his Decision in the above-enti- tled proceeding, finding that Respondent had en- gaged in and was engaging in certain unfair labor practices and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner 's Deci- sion . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief.' The Charging Party filed exceptions to the Trial Examiner's Decision and a statement in op- position to the statement of exceptions filed by Respondent. 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 these cases 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 en- tire record in these cases, including the Trial Ex- aminer's Decision, the exceptions and the brief, and the statement in opposition , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, as modified below.' ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor I The Respondent's request for oral argument is hereby denied as the record, including the Respondent 's exceptions and brief and the Charging Party's exceptions and statement in opposition , adequately presents the is. sues and positions of the parties ' On the ground that Section 8 (d) is inapplicable to an unfair labor prac- tice strike, we find that the Trial Examiner properly refused to permit the introduction of evidence on compliance by the Union with Section 8(d) of the Act. Mastro Plastics Corp. v N L R D, 350 U.S. 270 We further find that it is unnecessary to determine whether the six em- ployees laid off on December 12, 1966, were permanently or temporarily laid off as it is clear that such a ruling cannot affect the majority status of the Union Finally , we note that the Trial Examiner, in his Remedy and Recom- mended Order, ordered the Respondent, at the option of the Union, to ex- ecute the agreed-upon contract, to expire January 15, 1969 ( inadvertently misstated , should read "January 14, 1969"), or to bargain collectively with the Union . We have concluded that it would best effectuate the policies of Relations Board hereby orders that the Respon- dent, Pure Laboratories, Inc., Parsippany-Troy Hills, New Jersey , its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discouraging membership in Local 1199, Drug and Hospital Employees Union , Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization of its employees , by discriminating in regard to their hire and tenure of employment or in any term or condi- tion of employment because they engage in strikes or other forms of concerted activity. (b) Refusing to bargain collectively with the Union by unilaterally announcing to its employees and by instituting a new life insurance plan to cover the employees in the bargaining unit, by refusing to reduce to writing and by refusing to execute a con- tract embracing terms and conditions orally agreed upon in preceding negotiations , and by withdrawing recognition of and refusing to bargain further with the Union as the exclusive representative of its em- ployees in the appropriate bargaining unit. (c) In any other manner refusing to bargain col- lectively in good faith concerning wages, hours, and other terms and conditions of employment with the aforesaid Union , as the exclusive representative of all employees in the following appropriate unit: All employees employed at Respondent's Par- sippany-Troy Hills, New Jersey, plant, exclud- ing chemists, office personnel , executives, members of management, and supervisors, as defined in the Act. (d) In any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights guaranteed by Section 7 of the Act, except to the extent that such rights may be af- fected by an agreement requiring membership in a labor organization as a condition of employment, as authorized by Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: the Act to modify the Remedy and Recommended Order of the Trial Ex- aminer by ordering the Respondent to reimburse the employees, with 6 percent interest per annum thereon , for the loss of any benefits which would have accrued to them under the contract which the Respondent un- lawfully refused to sign ; and, in the event the Union requests the Respon- dent to sign the said contract , the expiration date , originally January 14, 1969, shall be extended until 2 years subsequent to the date on which Respondent signs the contract Moreover , we further provide that the reopener provision , originally effective on January 15, 1968 , shall be effec- tive I year from the date on which Respondent signs the contract , and the increase in Respondent's contribution to the local 1 199 benefit plan to 4 percent originally effective January 15, 1967 , shall be effective the day Respondent signs the contract , and the increase in Respondent's contribu- tion to 4-1/2 percent originally effective October 1, 1967, shall be effective 8-1/2 months after Respondent signs the contract Sclidl Steel Products, Inc, 161 NLRB 939, Borg Compressed Steel Corporation , 165 NLRB 394. 172 NLRB No. 13 PURE LABORATORIES, INC. 105 (a) Offer to James Brown, Carrie Feaster, Char- lotte Khan , Geneviera Lopez, Thelma Pendarvis, and Fred Smith immediate and full reinstatement to his or her former position , or to a substantially equivalent position , without prejudice to his or her seniority or other rights and privileges , and make each of them whole for any loss of earnings suf- fered as a result of the Respondent's refusal to rein- state them on May 1, 1967, in the manner set forth in the section entitled "The Remedy." (b) Notify any of the persons aforesaid who are entitled to immediate reinstatement under this Order 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. (c) Reimburse all employees covered by the agreement arrived at by the parties on January 13 or 16, 1967, together with 6 percent interest per annum thereon , for the loss of any benefits which would have accrued to them under the agreement which the Respondent refused to execute and reduce to writing. (d) Preserve until compliance with the Board's Order and, upon request, make available to said Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports , and all other records required to analyze and determine the amount of backpay due under the Order herein. (e) Upon request of aforesaid Union, sign forthwith a written contract embodying the terms and conditions agreed upon by the parties on January 13 or 16, 1967, and make such agreement effective as of the date of execution thereof, with the expiration date to be 2 years from the execution thereof, and further make the reopener provision effective 1 year from the date on which the Respondent signs the contract, and increase the Employer's contribution to the Local 1199 benefit plan to 4 percent effective the day Respondent signs the contract, and increase Respondent's con- tribution to the said plan to 4-1/2 percent effective 8-1/2 months after Respondent signs the contract. (f) Upon request, bargain collectively with said Union as the exclusive bargaining representative of the employees in the appropriate unit , and, if an understanding is reached, embody such understand- ing in a signed agreement. (g) Post at its plant in Parsippany-Troy Hills, New Jersey, copies of the attached notice marked "Appendix."3 Copies of said notice, to be furnished by the Regional Director for Region 22, after being duly signed by Respondent 's representative, shall be posted by it immediately upon receipt thereof, and be maintained for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respon- dent to insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 22, in writing, within 10 days from the date of this Order, what steps have been taken to comply herewith. APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT discourage membership in Local 1199, Drug and Hospital Employees Union, Retail, Wholesale and Department Store Union, AFL-CIO, or in any other labor organization, by discriminating against any of our employees in any manner in regard to their hire and tenure of employment or any term or condition of employment. WE WILL NOT refuse to bargain collectively with Local 1199, Drug and Hospital Em- ployees Union, Retail, Wholesale and Depart- ment Store Union, AFL-CIO, as the exclusive representative of the employees in the bargain- ing unit described below, by unilaterally an- nouncing and by instituting a new life in- surance plan to cover the employees in the bargaining unit, by refusing to reduce to writ- ing and by refusing to execute a contract em- bracing terms and conditions orally agreed upon in preceding negotiations, and by withdrawing recognition of and refusing to bar- gain with the Union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our em- ployees in the exercise of their rights guaran- teed by Section 7 of the Act, except to the ex- tent that any such rights may be affected by an agreement requiring membership in a labor or- ganization as a condition of employment, as authorized by Section 7 of the Act. 8 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforc- ing an Order " 106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL, upon request by Local 1199, Drug and Hospital Employees Union, Retail, Wholesale and Department Store Union, AFL-CIO, sign promptly and without delay a written contract embodying the terms and con- ditions agreed upon orally before January 20, 1967, and we will make such agreement effec- tive as of the date of execution thereof, with the expiration date to be 2 years from the date of execution thereof, and further, we will make the reopener provision of the contract effective 1 year from the date on which we sign the con- tract, and we will increase our contribution to the Local 1199 benefit plan to 4 percent ef- fective the day we sign the contract, and we will make effective the increase in our con- tribution to the said plan of 4-1/2 percent ef- fective 8- 1/2 months after we sign the contract. WE WILL , if no such request to sign the agreement is made by the Union , then, upon request, bargain collectively with that Union for the unit described herein with respect to rates of pay, wages, hours of work, and other terms and conditions of employment, and, if an understanding is reached , embody such un- derstanding in a signed agreement . The bar- gaining unit is: All employes employed at our Parsipan- ny-Troy Hills, New Jersey, plant, exclud- ing chemists , office personnel , executives, members of management , and supervisors, as defined in the Act. WE WILL offer to James Brown , Carrie Feaster, Charlotte Khan , Geneviera Lopez, Thelma Pendarvis , and Fred Smith immediate and full reinstatement to their former or sub- stantially equivalent positions , without preju- dice to their seniority or other rights and privileges, and WE WILL make them whole for any loss of pay suffered by them as a result of our refusal to reinstate them at the end of their strike on May 1, 1967. WE WILL reimburse all our employees covered by the agreement arrived at by the parties on January 13 or 16, 1967, together with 6 percent interest thereon , for the loss of any benefits which would have accrued to them under the agreement which we refused to reduce to writing and to execute. All our employees are free to become or remain, or refrain from becoming or remaining , members of the above-named labor organization or any other labor organization. PURE LABORATORIES, INC. (Employer) Dated By (Representative ) (Title) Note: We will notify the employees entitled to reinstatement 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. This notice must remain posted for 60 consecu- tive 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, 16th Floor, Federal Building, 970 Broad Street, Newark, New Jersey 07102, Telephone 645-3240. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE WILLIAM F. SCHARNIKOW, Trial Examiner: The complaint as amended in the above consolidated cases alleges, but the Respondent in its answer thereto denies, that the Respondent committed un- fair labor practices affecting commerce within the meaning of Sections 8(a)(1), (3), and ( 5) and 2(6) and (7 ) of the National Labor Relations Act, as amended, 29 U.S .C. Sec. 151, et seq., herein called the Act.' The ultimate issues presented by the pleadings and litigated at the hearing are: (1) Whether, on January 20 and 23, 1967, and thus after January 14, 1967, which was the expira- tion date of a 1-year contract between the Respon- dent and the Union covering an appropriate bar- gaining unit of the Respondent's employees, the Union continued to be the exclusive bargaining representative of these employees within the mean- ing of Section 9(a) and (b) of the Act. (2) Whether, in negotiations prior to January 20, 1967, the Respondent and the Union had reached oral agreement on the terms and condi- ' The original charge in Case 22-CA-2990 was filed by the Union and served on the Respondent on January 24, 1967, and an amended charge was filed and served on June 15, 1967. The charge in Case 22-CA-3112 was filed by the Union and served on the Respondent on May 9, 1967 An original complaint was issued and served on the Respondent in Case 22-CA-2990 on May 10, 1967. On June 7, 1967, the Regional Director consolidated the cases and issued and served on the Respondent an amended complaint in the consolidated proceedings At the opening of the hearing on June 21 , 1967, the General Counsel moved to amend the com- plaint further by adding an allegation based upon the amended charge which had been filed in the meantime in Case 22-CA-2990 by the Union and served on the Respondent on June 15 , 1967 1 granted the motion over the Respondent's objection PURE LABORATORIES , INC. 107 tions of a new contract to become effective on January 15, 1967. (3) Whether the Respondent refused to bargain with the Union as the continuing exclusive bargain- ing representative of the employees in the ap- propriate unit in violation of Section 8(a)(5) and (1) of the Act : (a) By unilaterally changing the health and life insurance coverage of its employees on or about January 20, 1967; (b) By refusing on January 23, 1967, to reduce to writing and execute a contract with the Union ef- fective on January 15, 1967, and embracing terms and conditions orally agreed upon in preceding negotiations; and (c) By withdrawing its recognition of, and refus- ing to bargain further with , the Union on and after January 23, 1967. (4) Whether employees who went on strike on January 23 , 1967, struck and continued to strike until on or about May 1, 1967, because of an unfair labor practice on the Respondent 's part in refusing to bargain with the Union on January 23, 1967, and whether the Respondent's refusal to reinstate six of them on or about May 1, 1967, on their uncondi- tional offer to return to work in their former or sub- stantially equivalent positions was therefore an un- fair labor practice within the meaning of Section 8(a)(3) and (1) of the Act. Pursuant to notice a hearing was held before me, duly designated by the chief Trial Examiner, at Newark, New Jersey, on various dates from June 21 to July 18, 1967, inclusive. The General Counsel, the Respondent, and the Union appeared by coun- sel and were afforded full opportunity to be heard, to examine and cross-examine witnesses , and to in- troduce evidence bearing upon the issues . Since the close of the hearing , I have received and considered briefs submitted by counsel for the General Coun- sel, the Respondent, and the Union. Upon the entire record in the case and from my observation of the witnesses , I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW 1. THE BUSINESS OF THE RESPONDENT Respondent, Pure Laboratories, Inc., is, and has been at all material times, a New York corporation engaged at its plant in Parsippany-Troy Hills, New Jersey, in the manufacture, sale, and distribution of pharmaceutical products and other related products. During 1966, a representative year, the Respondent manufactured, sold, and distributed products of a value of more than $50,000 at and from its New Jersey plant and also shipped such products of a value of more than $50,000 from its New Jersey plant in interstate commerce directly to States of the United States other than the State of New Jersey. I find that the Respondent is, and has been at all material times , an employer engaged in commerce within the meaning of the Act and that it will effec- tuate the policies of the Act for the Board to enter- tain jurisdiction in the present case. II. THE LABOR ORGANIZATION INVOLVED Local 1199, Drug and Hospital Employees Union, Retail , Wholesale and Department Store Union, AFL-CIO, herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction It is undisputed that, under a series of contracts with the Respondent from 1959 until January 14, 1967, the Union was continuously recognized as the exclusive bargaining representative of an ap- propriate unit of the Respondent's laboratory em- ployees excluding "executives, members of management, supervisory employees, chemists, and office personnel." The Respondent maintained its laboratory in New York City until, in 1962, it moved it to Parsippany-Troy Hills, New Jersey, where, by arrangement with the Union, it then transferred its New York City employees with an agreed continuing allowance for commuting. Since 1962, it has hired additional New Jersey employees as they were needed. The last contract between the Respondent and the Union was executed on April 11, 1966, was retroactively effective from January 15, 1966, and by its terms was to expire unconditionally on Janua- ry 14, 1967. Among its provisions were a valid union-security clause and provisions governing seniority rights, economic layoffs, and preferential rehiring rights for a year. Except with the Union's consent, economic layoffs and preferential rehirings were to be effected in accordance with seniority and, on economic layoffs for more than 30 days, employees with more than a year of service were to be paid a "bonus" of a week's wages and those with more than 3 years of service a "bonus" of 2 weeks' wages. There was also a provision for the payment of "severance pay," at the rate of 1 week's pay for each year of service, to any employee who should refuse a transfer to any new plant the Respondent might establish. On November 17, 1966, Union President Leon Davis notified the Respondent by letter addressed to it at the New Jersey laboratory that the Union would regard this 1966 contract as terminating on January 14, 1967, its expiration date, and that it was "ready and willing to meet and confer with you at a mutually agreeable time and place for the pur- pose of negotiating a new collective-bargaining agreement." Four persons played the principal roles in the material events which followed this bargaining request of the Union. During the entire relationship 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the Respondent and the Union since 1959, George Glotzer has been the Union's vice president and the director of its drug division with offices in New York City. In December 1966, and during the beginning of 1967, Edward Bragg was his assistant and, as the Union's area director of the drug divi- sion, handled the Union's contract relations and employee grievances with the Respondent. On the Respondent's side, Cheng Ching Wang has been its president since he started the business in 1952, and, since 1964, Norman Jungk has been its vice pre- sident and the general manager of the New Jersey laboratory. Wang has always maintained his office in the downtown business district of New York City, where, in addition to giving attention to the Respondent's business, he also conducts the Far East trading business of the U.S. Summit Corpora- tion, a business which takes him as its president to the Far East at least twice a year from 7 to 12 weeks at a time. Although he delegated to Jungk "all the authority" of running the laboratory's busi- ness, Wang, as he testified , is still "concerned with policy [but] not with details" and has retained ulti- mate "full responsibility"for the Respondent's busi- ness. During their dealings with each other since 1959, President Wang and Union Vice President Glotzer had developed what both men agreed was (as described by Wang) "a very good personal relation- ship" of "mutual admiration and friendship." But both Glotzer and Union Director Bragg felt (rightly or wrongly ) that Manager Jungk was causing troublesome dissension at the laboratory by at- tempting to split the old New York City group of employees from the newer New Jersey employees and favoring the latter group. When Glotzer com- plained to Wang about this, the two men met at lunch in New York City on December 6, 1966, and thus began the train of events with which we are concerned in the present case. A substantial evidentiary conflict which threads the entire case is whether , during conversations which Wang had with Glotzer and also with Bragg during December 1966 and January 1967, Wang as the Respondent's president orally accepted a definite written union proposal to extend the expir- ing contract for 2 years, only to have Manager Jungk ignore or repudiate this agreement on Janua- ry 23, 1967, and , on an asserted doubt as to the Union's continuing majority, even to refuse to recognize and bargain further with the Union. Resolution of this conflict is, of course , essential to the decision of this element , but not the other ele- ments, of the Respondent 's alleged refusal to bar- gain as set forth in the amended complaint. And there are also other evidentiary conflicts on nar- rower points of varying degrees of importance, as well as disputes as to the inferences which should be drawn from uncontroverted evidence with respect to the Union 's continuing status as the majority representative of the employees in the bar- gaining unit. But certain basic facts and the early course of material events are substantially undisputed. Moreover, they furnish a background against which the conflicting testimony as to the conversations between Wang and the Union's officials must be viewed and appraised. Putting aside for later con- sideration this conflicting testimony as to whether Wang agreed to a written union contract proposal, I make the following findings upon the evidence be- fore me as to the early course of the material events in this case. B. Events in December 1966 1. Glotzer's and Wang's conversations in December 1966, the Union's contract-extension proposal, and its consent to the Respondent's layoff of six unit employees Although Glotzer complained to Wang about Manager Jungk during their luncheon meeting on December 6, 1966, Wang turned their discussion to what he said was the precarious financial condition of the Respondent, and asked that the Union re- lieve the Respondent of some of its burdensome payroll until it could sell its business, by consenting to a layoff of some of the 25 unit employees. In the December 6 conversation and in the course of conversations between the two men on each of the next 3 days, Glotzer responded to Wang's request by offering the Union's help in three ways. He recommended the advice of a finan- cial consultant who had successfully reorganized several other drug companies, arranged for a con- sultation , and on December 7 accompanied Wang on a visit to this man's office . He also submitted a written union proposal to extend the expiring con- tract for 2 years and gave the Union's consent to a layoff of six of the unit employees even though the choice of the people to be laid off conformed to the Respondent's purpose rather than to the strict seniority principle provided in the contract. As to the proposed 2-year extension of the con- tract, Glotzer told Wang on December 8 that, in view of the Respondent's financial problems, the Union would not present substantial wage and fringe benefit demands which it had been consider- ing. Instead , he gave Wang the following written proposal, explaining his reasons for each of the provisions: PROPOSALS TO MODIFY THE PURE LABORATORIES CONTRACT IN VIEW OF PRESENT CONDITIONS 1) Extend existing contract for a term of two years to expire January 14, 1969. 2) The agreement is to survive any re-or- ganization , merger , sale or transfer of owner- ship or any other change of ownership. PURE LABORATORIES, INC. 109 3) A. Upon thirty (30) days notice during the first year of the extended agreement, the union shall have the right to reopen the agreement for negotiation of wages, hours and other conditions of employ- ment. B. The contract shall be re-opened effec- tive January 15, 1968 on wages, hours and working conditions. 4) The Employer's contribution to the Local 1199 Benefit Plan shall be increased to 4% ef- fective January 15, 1967, and 4-1/2% effective October 1, 1967. 5) Due to the Employer's economic difficul- ties the plant intends to discontinue production thereby requiring the lay-off of production em- ployees. It is the Employer's intention to keep in his employ those employees who are required for maintaining the plant's facilities and its equipment, and to reduce inventory while seeking a more permanent solution. This may result in a merger, sale, transfer of owner- ship in one form or another , or liquidation. In view of these circumstances the employees who are laid-off for a period of six months shall be entitled to severance pay, calculated on the basis of one (1) week's pay for each year of employment. Glotzer's consent to the layoff of six unit em- ployees was given to Wang in the course of their conversations on December 8 and 9. In the December 8 meeting, which was held in Wang's of- fice and was attended by Bragg as well as by Glotzer, Wang submitted a list of employees for layoff which had been prepared by Jungk. Had it been accepted, all the women employees originally hired in New York City and still living there would have been laid off despite their seniority , and only one New York City employee (a man ) would have been retained . Glotzer and Bragg pointed this out to Wang as well as the fact that the retained New York City man would no longer have transportaion since he depended on rides in a carpool with the women employees who would be laid off. Wang agreed to confer with Jungk about an acceptable revision of the layoff list because of this and on the following day, December 9, he telephoned Glotzer a new list of six employees to be laid off. Glotzer, with Bragg listening in on the telephone extension, consented to this layoff list which , again, included only women employees despite their greater seniority than some of the men and other em- ployees but left untouched the four New York City ' Unless otherwise noted, the findings in this section as to the manner in which the layoffs were effected on December 12 are based upon a com- posite of consistent testimony given by Bragg , Yueh, and Union Steward Carrie Feaster. women employees with the greatest seniority. The transportaion problem of the lone male employee of the original New York City group was thus solved but the Union , in acceding to the Respon- dent's revised choice of people for layoff, also con- sented to a departure from the contractual seniority principle in that the six women employees laid off had greater seniority than most of the employees who were retained. When Glotzer and Wang thus agreed upon the six people who were to be laid off, they also agreed that the layoffs were to be effected the following Monday, December 12. They further agreed that, at a meeting to be held at the laboratory at that time, all the employees in the unit were to be told by the Respondent of the economic reasons which compelled the layoff, and that the Union was to be permitted to explain its position . Glotzer at first suggested that Wang conduct the meeting because the employees "had generally a high regard" for him. But, when Wang learned that Glotzer could not attend and Bragg would appear for him, Wang said he would not attend either but would have Jungk conduct the meeting . Glotzer objected to this because he said the employees ' distrust of Jungk might upset the Union 's plan not to press the Respondent with new contract demands because of the Respondent's financial condition. But Wang said he would brief Jungk very carefully to act judi- ciously and, upon Wang's insistence , it was agreed that Jungk would conduct the employees ' meeting on December 12 in accordance with Wang's and Glotzer's understanding. 2. The layoffs on December 12, Glotzer's protest to Wang as to the manner in which they were handled by Jungk , and his delegation of further union action to Bragg When Bragg went to the laboratory on the morn- ing of December 12, he was met by Lambert Yueh, Jungk 's assistant, who took Bragg into Jungk's of- fice and started to go over the list of employees who were to be laid off.2 Bragg asked where Jungk was and told Yueh that, before the six employees were laid off, they "were supposed to have a meet- ing with the workers" at which Jungk was to give the Respondent 's reasons for the layoffs and Bragg was to explain the Union 's position . Yueh said that he knew nothing of such an arrangement and that, since his instructions from Jungk were merely to lay off the six people, they would handle the layoffs in the same way they had in the past.3 Although Yueh testified that Bragg seemed satisfied , I credit Bragg's testimony that he actually told Yueh he felt the Union was being "double crossed." Further ' Yueh's statement to Bragg, that he had received no instructions from Jungk as to any special handling of these layoffs, is consistent with Jungk's testimony that, without going into detail , Wang had merely instructed him by telephone to tell the women to be laid off that their layoffs were for economic reasons, and that Jungk did not recall Wang's saying he was to act jointly with Bragg in the layoff announcement 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crediting Bragg 's testimony, I also find that Bragg did not see or speak with Jungk during the entire morning although Yueh testified he saw Bragg speak to Jungk for for a short time and Jungk testified that he and Bragg met briefly in the office corridor in midmorning and at the end of the morn- ing and that Bragg told him the layoff arrangements as they were being handled by Yueh were satisfac- tory. After Yueh had spoken with Bragg on the latter's arrival, he first called Union Steward Carrie Feaster into Jungk 's office and, with Bragg and Feaster with him, separately called in each of four of the six women who were to be laid off, necessarily omitting the other two because they were not at work that day. He told each of these women in turn that she was being laid off or terminated because of economic conditions, that he regretted that it had to be just before Christmas, and that they would receive "severance pay," a prorated vacation pay- ment, and 1 day's extra pay for Christmas . And, on the same day, he mailed notices to all six of the women, enclosing the Respondent's checks for these amounts.4 After Yueh had spoken to each of the four women on December 12, Bragg asked Yueh for permission to speak to all the unit employees and, receiving permission, did hold a separate meeting with them at lunchtime. At this meeting, Bragg read and explained the Union 's proposal to extend the expiring contract and the employees ratified the proposal. Following this meeting with the employees, Bragg first telephoned Glotzer and then returned to the union office where he reported what had happened to Glotzer. On the same afternoon , December 12, Glotzer telephoned Wang and told him that, ac- cording to Bragg , instead of Jungk 's holding a general meeting with the employees , Yueh had called in the employees who were to be laid off and had told them in the presence of Bragg they were being laid off with the Union 's consent and that thereafter Bragg alone had a meeting with the em- ployees at which the employees had ratified the Union's proposal to extend the contract. Glotzer said to Wang that Jungk's handling of the matter confirmed Glotzer's "suspicions" and distrust of Jungk and that he hoped not too much damage had been done. Wang "apologized" (as he himself testified) and said he would check into the matter .5 During this December 12 telephone conversation between Glotzer and Wang, there was some talk about the Union's contract-extension proposal and Glotzer told Wang that, because of Mrs. Glotzer's illness , Bragg would handle the Union's part in its further discussion. But there is a conflict between Glotzer's and Wang's testimony as to the extent of their discussion of the Union's proposal in this con- versation. As already noted, consideration of this conflict as part of the running conflict in these wit- nesses' and Bragg's testimony as to whether Wang eventually accepted the Union's proposal has been deferred for later consideration. 3. The petition of six, and later a seventh, of the unit employees which was originally submitted to Manager Jungk on December 20, 1966 After working hours on the evening of December 19, Robert McCleary, an employee in the unit, placed on Manager Jungk 's desk at the laboratory a sealed envelope , marked "Personal" and containing the following typed "petition" signed by six of the unit employees, including McCleary: 19 December 1966 PETITION TO THE MANAGEMENT OF PURE LABORATORIES, INC. TO: Mr. N. K. Jungk, Vice President Dear Mr. Jungk, We understand that Pure Labs. will soon be negotiating for a new contract with Union 1199, Drug and Hospital Workers. Many em- ployees who are now in the union , do not want to belong. We ask that when the new contract is writ- ten you will not agree to anything that will force us or any other employee to belong to the union in order to hold our jobs , but that we a Counsel urged me to resolve a conflict in the testimony as to whether Yueh, in talking with the women on December 12, referred to the Respon- dent 's action as a "layoff' ( as both Bragg and Feaster testified ) or as a "ter- mination " of the women 's employment ( the term Yueh testified he thought he used in accordance with the broad sense of Jungk 's instructions and the term which he actually used in letters to call six of the women when he mailed them their checks on December 12) Counsel also disagree among themselves as to the significance of Yueh 's use of the term "severance pay" both in speaking with the women and in the letters he mailed to them on the same day Counsel apparently feel that the nature of the Respondent's action either as a layoff or a termination depends upon my deciding these matters because of a possible bearing on the composition of the bargaining unit on January 20 and 23, 1967; i e., whether the six women remained members of the unit as laid off employees or whether , as terminated em- ployees, they were no longer in the unit But, in the setting of this case , I do not share these concerns of Counsel. Respondent's action must be regarded as a layoff under the admitted agree- ment between Glotzer and Wang The use of the term "severance pay," although inaccurate with respect to layoffs under the lanugage of the con- tract, was also used by the Union in its proposal to extend the contract But even though it thus appears that the Respondent merely laid off the six women , the prospect of their return to work within the reasonable, foresee- able future was negligible under the circumstances recognized by both the Respondent and the Union, and, as I hereinafter conclude , they were not members of the bargaining unit on January 20 or 23, 1967 "The general substance of the December 12 telephone conversation in these respects is not disputed . Wang admitted receiving Glotzer's protest about the way Jungk had handled the meeting with the employees . He also testified that he apologized and said he would check into it. He denied that Glotzer told him of the employees ' ratification of the Union 's contract proposal , but I have credited Glotzer's testimony that he did so inform Wang PURE LABORATORIES , INC. 111 be free to choose for ourselves whether we want to belong to the union or not. McCleary had not spoken to Jungk in advance about the substance of this petition or his intention to prepare it. He had drafted it in longhand, how- ever, after speaking with several of the subscribing employees; had used the Respondent's office typewriter without securing the Respondent's per- mission to type the final copy while he was working late on the evening of Sunday, December 18; and had secured the signatures of the other five sub- scribing employees during work breaks on Monday, December 19, the date which he had typed on the petition and which also appears in the writing of each subscriber alongside his particular signature. When Jungk found the petition on his desk on the morning of December 20, he asked McCleary (whose signature was the first on the petition) what its meaning was. McCleary said he had drafted it and there were other employees who felt the same way but who were afraid to sign . He also asked Jungk for his advice and Jungk replied (as Mc- Cleary testified) "that you would have to have a majority" but "he would try to find out" what he could do about it. Jungk locked up the petition and said nothing about it to anyone until sometime in the week of January 16, 1967, when , according to his testimony , he recalled having been told by an employee "perhaps a month or two months" before that of "threats made by the union," and he there- fore called the six employees together and "reas- sure [d] them that [ their petition ] would be held confidential." Then, on January 20, 1967 (a date of significance in another respect , as we shall see), McCleary procured the petition from Jungk and, after getting a seventh employee to sign , returned it to Jungk. Jungk thus had in his possession the petition bearing the signatures of six of the unit employees on December 20, 1966, and bearing the signatures of seven unit employees by January 20, 1967. As a result of the six layoffs consented to by the Union on December 12 and one other layoff the same day, the number of employees on the Respondent's payroll for the unit had been reduced from 25 to 18 by December 20, and on January 20, 1967, as well as on January 23, 1967 (two of the critical dates in this case ), the unit payroll remained at 18. 4. Jungk's letter to Glotzer on December 23, 1966, and Glotzer's and Yueh's telephone conversation on December 28, 1966 On Friday, December 23, 1966 (3 days after Jungk received the employees' petition), Jungk mailed the following letter to Glotzer: This letter will serve to acknowledge receipt of your notification, dated November 17, 1966, of the expiration of our collective bargaining agreement with Local 1199, Drug and Hospital Employees Union, AFL-CIO. We are available at any time during the week of January 3 and January 9, to meet with your representatives for the purpose of negotiating a new contract. We further offer the use of our conference room for the negotiations, or we will be pleased to meet at some other place of your choosing in the local area. Wang had in the meantime shown Jungk the Union's written proposal to extend the expiring contract. Furthermore, still deferring consideration of the running conflict in Wang's and Glotzer's testimony as to the full substance and import of their conversations, it appears from Glotzer's testimony (without denial by Wang) that even after December 12 and into late December when Jungk mailed his letter, Glotzer and Wang were continu- ing their telephone conversations about the Union's extension proposal although Glotzer repeated his suggestion that Bragg be permitted to pursue the matter for the Union because he himself was con- cerned about his wife's illness. On Wednesday, December 28, Jungk told Yueh, his assistant, to telephone Glotzer and find out whether Glotzer had received his letter of December 23, because Jungk had forgotten to send it by certified mail requiring a return receipt. Yueh made the telephone call the same day and Glotzer was curt in his answer. He told Yueh he had received the letter. Yueh testified that Glotzer also said "he had turned over the matter to Mr. Edward Bragg ... and that Edward Bragg [will] be in touch with you, namely, Pure Laboratories in a few days regarding the time and place of a meeting." But I find, upon Glotzer's testimony, that what he told Yueh was that he was "well advised that you sent the letter, but I suggest you discuss it with Mr. Wang, and furthermore ... Ed Bragg is handling this." C. Wang's Oral Acceptance of the Union's Contract Proposal and Further Events in 1967 After Jungk had issued his bargaining invitation to the Union on December 23, 1966, without reference to the Union's contract-extension proposal, President Wang of the Respondent had another conversation with Union Representative Bragg about the union proposal on January 5, 1967. Whether he also spoke again with both Bragg and Union Vice President Glotzer before January 20 and then orally accepted the proposal is in dispute. In any event, on January 20, 1967, Jungk began an independent course of action, which, in its undisputed outline, amounted to a deliberate, express rejection by Jungk of the Union's claim that it still represented the employees in the bargaining unit. Thus, on January 20, after the January 14 ex- piration date of the 1966 contract, Jungk held a 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meeting of the unit employees at the laboratory and told them they were being covered by a new in- surance plan which had been unilaterally arranged for them by the Respondent . On January 23, Bragg and the Union 's attorney appeared at the laborato- ry and asked Jungk and the Respondent 's attorney to formalize the language , and execute the terms, of what they said had been Wang 's acceptance of the Union's contract-extension proposal . But Jungk refused , said that he doubted that the Union still represented the employees in the unit , and there- fore withdrew the Respondent 's recognition of the Union as the employees ' bargaining representative. As a result, 9 of the 18 employees then on the payroll in the unit went on strike on January 23, 1967, and began picketing the laboratory. Although , on April 27 , 1967, the Union informed the Respondent by letter that the strike was discon- tinued and requested the reinstatement of the strikers on the following Monday, May 1, when six of the strikers presented themselves with Bragg at the laboratory on the latter date, the Respondent (speaking through Yueh ) refused to reinstate them because , as he told them , they had been replaced. Within this general , admitted framework of events, the prime evidentiary conflict is whether President Wang in the course of his conversations with Glotzer and Bragg had orally agreed before January 20, 1967, to accept the Union 's written contract-extension proposal and to execute a con- tract containing its provisions. There are also com- paratively minor conflicts in the evidence with respect to the events on and after January 20, which will be considered in the course of the fol- lowing detailed findings concerning these events. 1. Wang's conversations with Glotzer and Bragg and his agreement to the Union 's contract proposal and arrangements for its execution It will be recalled that Glotzer's conversations with Wang about the possibility of an extension of the union contract began on December 6, 1966, when Wang told Glotzer of the shaky financial con- dition of the Respondent and asked that the Union consent to a layoff of some of the unit people. On December 8, Glotzer handed Wang the Union's specific four-paragraph extension proposal which has already been set forth at length and explained to Wang the Union 's reasons for each of the ele- ments of the proposal . It is undisputed that further conversations with Glotzer about the proposal took place the following day, December 9 (when the two men finally agreed on the layoff list), on Monday, December 12 (when Glotzer called Wang and protested about Jungk 's handling of the layoffs), and several times in the end of December 1966 during which Glotzer said Bragg would talk about the matter further with Wang because Mrs. Glotzer was ill . It is also undisputed that Wang took Bragg to lunch in New York City at the Four Seas Restau- rant on January 5, 1967, and that , during the luncheon , Bragg spoke to Wang about the Union's contract-extension proposal . Finally it is undisputed that at least up to and including his luncheon con- versation with Bragg on January 5, 1967, Wang had not accepted the Union 's contract proposal. But there are two broad areas of dispute in the evidence as to the course of Wang 's conversations with Glotzer and Bragg . The first relates to the exact position taken by him with respect to the Union 's extension proposal in the conversations which admittedly took place on and before January 5, 1967 . The second area of dispute is whether there were two additional conversations after January 5, 1967, and before January 20, 1967, in which Wang finally told Glotzer he accepted the Union 's extension proposal and would arrange a meeting for its execution. With respect to the first of these conflicts, Wang testified in substance that in all his conversations with Glotzer and Bragg , although he criticized the contract-survivorship and reopener clauses of the Union 's proposals as obstacles to his sale of the business and listened to Glotzer 's arguments in favor of these elements of the proposal, he re- peatedly told Glotzer and Bragg they would have to negotiate with Jungk on a new contract and that he certainly did not agree to accept the Union's proposal. Glotzer and Bragg, however, denied that Wang told either of them that the Union would have to negotiate with Jungk . On the contrary, the sub- stance of their testimony was that Wang never referred to the necessity of their negotiating with Jungk or anyone else, but, instead, entered himself into a full consideration and discussion with them of the details of the Union 's contract proposal (as he had on the layoff matter ) and that, although in the conversations up to and including January 5, 1967, he hesitated about accepting the contract- survivorship and the reopener provisions , his state- ments clearly encouraged Glotzer's and Bragg's be- lief that, depending upon his consultation with his "people" ( whom he did not name ), it was likely that he would accept the Union 's extension proposal either in full or, if not in full, with only the contract-survivorship provision excluded. In the development of his narrative to this effect, Glotzer testified that , when he gave Wang the Union's extension proposal and explained each of its provisions in detail during their conversation in Wang's office on December 8, Wang asked him "many questions" and then said "that he thought it was rather fair but he wasn 't committing him- self . . . he [had] to discuss it with his people and he would get back to [Glotzer] and discuss it fur- ther." Again according to Glotzer 's testimony, in their telephone conversation on December 9, during which Glotzer consented to the Respondent's revised layoff list, Wang raised specific questions as to the acceptability to him of the reopener and con- tract-survivorship clauses of the Union 's proposal PURE LABORATORIES, INC. 113 and, after hearing Glotzer's explanations, said that, while there would "undoubtedly" be agreement on "the other items" in the Union's proposal and Glot- zer's explanations of the reopener and survivorship clauses seemed "plausible," he still did not know "what we can do" on the latter two clauses but "would discuss it with his people" and speak with Glotzer again . Then, during their telephone conver- sation on December 12 when Glotzer protested to Wang concerning Jungk's handling of the layoffs that day, the two men again went over the items in the Union's proposal and Glotzer testified that Wang again singled out the reopener and the sur- vivorship clauses but that, after Glotzer again ex- plained the two clauses, Wang said that, while he was "convinced that the reopener clause" was "reasonable" and "fair," the "one problem ... with his people is the problem of the successor [the con- tract survivorship] clause," whereupon Glotzer sug- gested that, in view of his wife's illness and although he would continue to be "available," Bragg and Wang should "explore this one area [the survivorship clause] and resolve it and then be able to work out the final details . . . with the lawyers Although Glotzer testified there were other telephone conversations between him and Wang in late December , he did not testify in detail as to these conversations except to say that he urged Wang to thrash out the survivorship clause with Bragg as the only unresolved issue and have the parties' lawyers write out an "extension to the old agreement" which, though "in legal terms," need not "rewrite the old agreement , [but] just an exten- sion to it." Then, on January 5, 1967, according to Bragg's testimony , he went to lunch with Wang and, after a lengthy conversation about other mat- ters, Wang told Bragg that agreement on everything but the survivorship clause was possible, that "he felt that this might be a problem with some of his people," and (after Bragg attempted to persuade him that this should not be so) finally said, "well, I'll have to think about it. Let me get back to my people and we'll set up another luncheon date and we'll meet and discuss it again." The second broad and more complicated conflict in the evidence as to Wang's conversations with the Union's officials was introduced by Bragg's and Glotzer's testimony concerning two additional separate conversations which they said they had with Wang about the Union's contract-extension proposal after Bragg's luncheon with Wang on January 5. With respect to the first of these two conversations, Bragg testified that he was again taken to lunch at the same restaurant by Wang who told him that, although he could agree to the rest of the Union's proposal , the contract-survivorship clause was unacceptable because a prospective purchaser of the business had balked at "buying" a union . According to both Bragg's and Glotzer's testimony, Bragg reported this to Glotzer when he got back to the Union's office and Glotzer im- mediately telephoned Wang the same afternoon. With substantial corroboration from Bragg who was on an extension during part of the conversation and who himself spoke with Wang at the end of the call, Glotzer testified he explained to Wang why he thought a purchaser of the business should regard a continuing union contract and its reassurance against the possibility of a strike as being desirable; that, after some discussion, Wang said "You know, George, you make sense. I'm satisfied now and I tell you now, we'll settle it, you'll have it"; that Glotzer then suggested that, since he was leaving on his va- cation, Bragg and Wang should arrange for a meet- ing with the parties' attorneys at the office of the union attorney in New York City for the drafting and execution of the agreement; and that Glotzer thereupon turned the telephone over to Bragg. Bragg testified that he thereupon took the telephone and spoke to Wang who suggested, and they both agreed, that, since Wang was not sure that he would be in the city, the meeting should be held between Jungk and Bragg with the parties' at- torneys on January 20 at 120 Wall Street in the law office of the Union's attorney, Harry Weinstock; and that Wang and Bragg should each make the necessary arrangements on his side. In their initial testimony to this effect during the General Coun- sel's case-in-chief, both Bragg and Glotzer fixed the date of these last two conversations with Wang as January 17, a Tuesday, and the last day Glotzer was in his office before leaving on his 3-week vacation. When it was his turn to testify later in the hear- ing, however, Wang not only denied that he had seen Bragg after their luncheon on January 5, but testified (and was corroborated by a combination of the testimony of T. Y. Hsiung, the restaurant's luncheon tab, his own signed American Express charge, and the American Express records which the General Counsel subpenaed) that he had lunch on January 17 at the restaurant mentioned by Bragg in his testimony, not with Bragg, but with Hsiung (a representative of the Chinese Nationalist government) and a second guest connected with a Formosan pharmaceutical company. This was the extent of Wang's evidence which he was asked for and gave on direct examination with respect to any conversations he may have had with Bragg or Glotzer after January 5. On cross-examination, Wang testified that, after January 5 , Bragg did telephone him for an appoint- ment, that on Wang's suggestion they made a luncheon appointment for January 18, but that "a couple of days before that," Bragg canceled this ap- pointment. He also testified on cross-examination that he had a telephone conversation with Bragg on January 17 but was not asked, on cross-examina- tion or redirect examination and he therefore did not testify, what the subject or substance of this telephone conversation was. When asked whether he also had any telephone conversation with Glotzer, he said he did not recall. To the question whether in a telephone conversation with Glotzer, 354-126 O-LT - 73 - pt. 1 - 9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in which Bragg "participated," an appointment was arranged "at 120 Wall Street," Wang gave the answer that "I don't recall there was an appoint- ment made on 120 Wall Street." That this particu- lar answer in its unnaturally explicit repetition of as much, but still only part, of the language of coun- sel's question was unnecessarily and suspiciously guarded appeared when, to the next question put by Union's counsel as to whether an appointment was made for a meeting between the Union's and the Respondent's attorneys, Wang answered simply that, "I don't recall a meeting was proposed" and explained that he meant, "I don't remember." However, at the conclusion of this segment of his cross-examination, he did deny that he made any arrangement for a meeting at which Jungk would be present. But he still avoided, consciously or un- consciously, testifying whether in his admitted telephone conversation with Bragg on January 17, or in a conversation with Bragg or Glotzer on January 17 or at any time after January 5 but be- fore January 17, there had been any conversation of the general substance which both Bragg and Glotzer had testified was the substance of their con- versations with Wang on January 17. Although, for the most part, his testimony which skirted these material possibilities was given on cross-examina- tion, Respondent's counsel did not give him the op- portunity on direct or redirect examination of going into these matters and clarifying them. Instead, Wang and his counsel were apparently content merely to have Wang deny, with convincing cor- roboration, that he had no luncheon conversations with Bragg on January 17 and to rely on this refuta- tion of the exact time element fixed by Bragg and Glotzer for the luncheon conversation as sufficient for an inference that neither the luncheon conver- sation nor the later telephone conversation oc- curred either on or before January 17. Called on rebuttal , Glotzer and Bragg said, in substance, that in their original testimony , fixing January 17 as the date of their last conversations with Wang, they might have been mistaken as to the exact date, but not as to the circumstances or substance of the conversations nor the fact that they occurred on or before the 17th, the last day Glotzer had been in the office before leaving on his vacation. Bragg reaffirmed his testimony that his last face-to-face conversation with Wang took place at a second luncheon with Wang after January 5, and testified that he did not recall having a scheduled meeting with Wang on January 18 which he (Bragg ) had canceled. In explanation of his and Glotzer's uncertainty as to the exact date of their last conversations with Wang, Bragg testified that several months later, on April 11, 1967, his car had been stolen (a fact which he had reported to the police ), and that his attache case, containing his records of the dates on which he would otherwise have been able to rely, had been in the car and had not been recovered . Glotzer and Bragg testified that, in view of the loss of Bragg's records and in a joint attempt to "reconstruct" the critical date be- fore testifying in the present case, they had as- sumed that, since Glotzer had called Wang just be- fore going on his vacation, the telephone call and Bragg's luncheon with Wang earlier the same day had taken place on January 17, the last day Glotzer had been in the office. Finally, Glotzer testified that he had originally tried to leave on his vacation at the beginning of the week only to be held in the of- fice by another matter in which he had to make a late evening appointment for Tuesday, January 17; that at the same time he had been concerned about settling the Respondent's contract on what "was supposed to be [his] last day in the office"; and that, if his telephone conversation did not occur on Tuesday, the 17th, it took place in his last few days in the office and therefore either on the preceding day (Monday, the 16th) or the preceding Friday, the 13th. Several additional points should be noted before resolving the foregoing conflicting evidence as to whether Wang himself undertook and engaged in negotiations with the Union rather than refer the Union to Jungk, and whether he eventually ac- cepted the Union's proposals and promised to have Jungk cooperate in settling the legal language and execute the contract. As will appear in detail in the findings in the next two sections of this Decision, Bragg attempted to get Jungk to sign the contract but Jungk refused and withdrew recognition of the Union on January 23, with the result that 9 of the 18 unit employees struck in support of the Union and were still on strike when Glotzer returned from his vacation on February 6. Bragg's action was thus consistent with his and Glotzer's version of their last conversations with Wang . But more significant than this was Glotzer's testimony, and Wang's failure to deny it in the course of his testimony, that Glotzer telephoned Wang on February 7 when he returned from his vacation, that he protested about Jungk 's refusing to sign the contract -extension proposal and charged Wang with "double crossing" the Union on his agreement to accept the Union's proposal, and that Wang, instead of denying that he had agreed to accept the Union's proposal, ex- plained that he could not overrule Jungk in the matter without firing him, which he did not want to do because of the extent to which he had to depend on Jungk in running the laboratory. In appraising the foregoing evidence concerning the substance and extent of Wang 's talks with Glotzer and Bragg in December 1966 and January 1967, I have considered the demeanor of these three men while they were on the witness stand, their relative apparent frankness and willingness to testify fully and thus to support and clarify their respective versions of the conversations, and (last but not least) the probability in favor of either of these versions in the context of the other events in the case. By all three of these standards, Glotzer's and Bragg's testimony , rather than that of Wang, seem credible. For Glotzer and Bragg were ap- PURE LABORATORIES, INC. parently willing to testify, and did testify, as to all details which seemed to be relevant whereas, as I have indicated in my preceding discussion, Wang tended to restrict his testimony to an unreasonably narrow area, giving flat denials or undeveloped af- firmative answers in response to his counsel's too frequently leading questions, and meeting questions of cross-examining counsel on critical points with carefully tailored, limited answers or with pleas that he did not remember. It is true that Glotzer and Bragg were clearly in error in originally fixing January 17 as the date of their last conversation with Wang and I have considered the possible sig- nificance of this error in appraising their testimony generally. But, their explanation during rebuttal seems to me to be understandable, reasonable, and credible, and their error as to the exact day, im- material. For, Bragg had lost his records, both men clearly recalled the conversations about which they had testified had taken place on or just before January 17 (the last day Glotzer was in his office), and Glotzer testified that the conversations might actually have taken place on either January 16 or 13 during the last few days when he was trying to get away from his office. On the other hand, as I have noted, aside from his flat statement that he did not see Bragg after January 5, Wang did not take the opportunity (nor did his counsel present him with the opportunity) to testify squarely as to whether he (Wang) had any conversation with Glotzer or Bragg after January 5 but before January 17, which in any respect resembled either of the conversations to which the union officials had testified. Finally, I believe that probability favors Glotzer's and Bragg's version of their conversations with Wang, i.e., that Wang as the Respondent's pres- ident and top official, having admittedly initiated the conversations with a plea for the Union's help, pursued the entire matter alone without attempting to call in Jungk, not only by procuring the Union's assent to the layoff for which Wang had asked, but also by considering and eventually accepting the Union's voluntarily and helpfully proffered proposal to extend the contract for 2 years. In sum, I credit Glotzer's and Bragg's testimony concerning their conversations with Wang and find, in the detail already set forth in my discussion of their evidence, that Wang as the president of the Respondent, having on December 8, 1966, received the Union's written, detailed proposal to extend the existing contract for 2 years beginning on January 15, 1967, thereupon entered into discussions and negotiation of this proposal with Glotzer and Bragg and in a last telephone conversation with Glotzer and Bragg on January 13 or 16, 1967, orally ac- Bragg testified it was January 19 and Jungk that it was January 18 ' Both Bragg and Jungk testified that Bragg referred to Wang's having ar- ranged the meeting Bragg testified that he said the meeting was "to get the contract signed , work out the lingo, the legal language with our attorneys " Jungk testified that Bragg "said something about , concerning a new con- tract or signing of contracts or something hut I do not remember the exact words " 115 cepted the proposal and promised to arrange a meeting between Bragg , Respondent's manager, Jungk, and the parties' attorneys at the office of the Union's attorney, Harry Weinstock, 120 Wall Street, New York City for the reduction of the sub- stance of the agreement to writing and its execution in legally acceptable language. 2. Bragg's and Jungk's telephone conversations and Jungk's January 20 announcement to the unit employees of a new insurance plan On January 18 or 19, 1967,6 Bragg telephoned Jungk and told Jungk that Wang had arranged for them to meet at Attorney Weinstock's New York City office on January 20 to sign a new contract.' According to Bragg's testimony, which I credit, Jungk replied that Bragg "was negotiating with the wrong guy, and if [he] wanted to get a contract signed , [Bragg] would have to come out to Pure Laboratories."8 Bragg thereupon telephoned Wein- stock, the Union's attorney, and, after changing their arrangement as to the time and place for their meeting with Jungk, again called Jungk and made an appointment to go to the laboratory at Parsip- pany on Monday, January 23 at 10 a.m. On Friday, January 20, and thus a day or so after they had made this appointment, Jungk telephoned Bragg . Jungk told Bragg (as he testified and Bragg substantially agreed in his testimony) that the Respondent "had been trying to negotiate within the proper limits of time allotted for proper negotiations and apparently we had been unsuc- cessful in arranging a meeting with them even though we had tried, and, further, we had reasona- ble good-faith doubt as to their representation, and before we could negotiate with the union it ap- peared to us that we had to resolve the issue of whether or not [the Union] truly represented these people any longer." Bragg became angry. According to Jungk, Bragg said that "he would show us who controlled the people of Pure Laboratory. If he had to, he would bring his people in from New York, he would bring his people up from Trenton and he would contact [a man ] ... who is currently serving a prison term in jail in Pennsylvania," but that, when Jungk asked him if this were a threat, Bragg said, "Oh, no, this is not a threat. I am a very peaceful guy." According to Bragg's testimony, "I called him a sneaky bastard and I told him that if he wanted to fight, that's what he is going to get," whereupon Jungk said, "If you come out here with any of your headshrinkers from New York, we will send them back." Faced with these two versions and considering the tension of " Jungk testitied merely that he said "that the plant was in Parsippany and any discussion concerning the company and the union should be held in Parsippany " Except by implication that this was all he said, he did not deny that he also said that Bragg had been talking "with the wrong guy" although , when asked on cross-examination whether he said this a few days later at the meeting at the laboratory , he said he could not remember then saying it 116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the situation and the apparent temperaments of the two men, I am inclined to believe both of them and therefore find that their exchange included remarks of the sort that both set forth in their testimony. Despite the heat of the argument, however, the meeting scheduled for January 23, 3 days later, was not called off and, at the end of the telephone con- versation, Bragg asked Jungk to bring Mrs. Carrie Feaster, the Union's steward to the telephone. Jungk said he would have Mrs. Feaster call Bragg. Jungk summoned Mrs. Feaster and not only told her to call Bragg but also asked her to come back and speak with Jungk after she had made the telephone call. Mrs. Feaster thereupon called Bragg and, in answer to his question, reassured him that the Union still represented the employees. Then, when she returned to Jungk, Jungk told her, as he had told Bragg, that the Respondent had unsuccess- fully tried to negotiate with the Union at the Parsip- pany Laboratory. He added that, because of the un- certain situation due to the expiration of the union contract, the Respondent had decided to cover the unit employees in a new insurance program which it had ori&nally planned only for the nonunit em- ployees, and thereby to substitute the new plan for the one that had covered the unit employees under the Union's contract.' After telling this to Mrs. Feaster, Jungk called the unit employees together and announced to them the coverage of the new in- surance plan. According to Mrs. Feaster's testimony, which Jungk did not deny and which I credit, he asked the employees to let him know if the Union offered them anything else. With respect to the new insurance plan, Jungk testified, and I credit his testimony, that he had first arranged with the insurance company in November 1966 for coverage of the nonunit employees on January 1, 1967, and that, in the week of January 16, he notified the Company that the plan was also to become effective as to unit employees on Janua- ry 15. But as found, the unit employees were not notified of this until the meeting held by Jungk after his telephone call to Bragg on January 20. This was the same day that employee McCleary had Jungk give him back the December 20 employees' petition to be relieved of the union-security provi- sion of any further union contract so that McCleary could get a seventh and last signature on the peti- tion. 3. Jungk 's refusal on January 23, 1967, to execute the contract to which Wang had agreed, his withdrawal of recognition , and the beginning of the strike Pursuant to the appointment made by Bragg and Jungk, Bragg and Weinstock, the Union's attorney, went to the Respondent's laboratory at Parsippany on Monday morning, January 23. There they met in the Respondent's office with Jungk, Yueh, Super- visor Sullivan, and one of the Respondent's attor- neys, John H. Dumont. In a 40-minute meeting, the men talked about the Union's having gone over Jungk's head to Wang and the extent of the agreement, if any, which Bragg said they had reached with Wang. Jungk re- peated to Bragg and Weinstock the substance of what he had already told Bragg in their telephone conversation on January 18 or 19, i.e., that the Respondent had given the Union 2 weeks in Janua- ry to negotiate (referring thereby to his letter to Glotzer on December 23 and Yueh's followup telephone call on December 28) and that now the Respondent had a doubt as to whether the Union "truly represented [the employees] any longer" since, in the employees' petition given to him, ap- proximately 40 percent had indicated that they did not want any part of the Union. Bragg disputed this expression of doubt, saying that the Union con- tinued to represent the employees and always had, and that he was surprised at Jungk's doubt because, as the Union's representative, he (Bragg) had had a meeting just a week or so before that with Wang. When Jungk said he wanted a Board election, Bragg said he had no intention of going to an elec- tion since the Union had a clear majority. Upon At- torney Weinstock's asking Jungk pointblank whether he was refusing to bargain, Dumont, the Respondent 's attorney, merely repeated their posi- tion in detail as Jungk had already set it forth. To the extent of the findings thus far made, there is no dispute in the testimony, and the findings have been made for the most part on the basis of Jungk's testimony where it was not in conflict with that of Bragg. It thus appears clear, and I find, that, on January 23, Jungk withheld further recognition and refused to bargain with the Union, asserting a doubt as to the Union 's continuing majority which he based upon the employee petition signed by seven of the employees. But there is a conflict in the testimony as to whether, in this meeting on January 23, Bragg also unequivocally claimed that Wang had already completely agreed to the Union's contract-exten- sion proposal and the execution of a new contract based thereon. Jungk and Yueh testifies that Bragg said he thought everything but the "si ccessor" or "survivorship" clause had been settled. Yueh did testify that either Attorney Weinstock or Bragg said "they came [to the meeting ] to prepare the final agreement of some sort," and that Jungk said "he knew of no agreement, and that the Union has not negotiated with the company, although the com- pany has tried several times to negotiate . . . ." But Jungk testified that he did not even remember whether Bragg or Weinstock had said that they did not come to negotiate a contract but only to work out language extending the contract. On the other s These findings are based upon Jungk's testimony as to his conversation with Mrs Feaster at this point PURE LABORATORIES, INC. 117 hand, Bragg testified, and I credit his testimony, that there was no mention of the survivorship clause in the meeting ; that he did not say the only thing not agreed upon was the successor or sur- vivorship clause ; that what he did say was that "we were here to get the contract signed and work out the legal language"; and that Jungk , expressing his doubt as to the Union 's majority , said that "he knew nothing about any contract and he wasn't going to sign any contract." Accordingly, I find upon this last credited testimony of Bragg and upon my findings heretofore made as to Bragg's and Glotzer's conversations with Wang, not only that on January 23 , 1967, Jungk withdrew recognition and refused to bargain or negotiate with the Union on an asserted doubt of its continuing majority, but that he also refused to draft and sign a contract em- bracing the Union 's contract-extension proposal in accordance with Wang's previous agreement. When Jungk had thus made clear his withdrawal of recognition, his refusal to execute the contract previously agreed to by President Wang , and, in- deed, his refusal to bargain at all, Bragg told him there would be a strike and, going into the corridor and finding the door to the plant locked , motioned and screamed to the employees through the glass window in the door , " We have a strike , tell the peo- ple to come out." 10 Attorney Weinstock took Bragg out of the building and nine employees " followed them, were informed of Jungk 's action, and began a strike which, as will be seen, lasted until May 1, 1967. 4. Events since January 23, 1967, including the Respondent's refusal to reinstate strikers on May 1, 1967 The strikers began picketing on January 23, 1967, and, on January 24, the Union filed it charges of refusal to bargain in the present case. On January 25, the Respondent filed with the Board's Regional Director a charge that the Union's picket- ing was an unfair labor practice within the meaning of Section 8(b)(7) of the Act, and also a petition for an investigation and certification of representa- tives under Section 9. The Regional Director refused to issue a complaint on the Respondent's charge and on May 5, 1967, the General Counsel affirmed the Regional Director's action . On May 5, 1967, the Regional Director also dismissed the Respondent's representation petition in view of his decision, upon investigation, to issue a complaint upon the Union's refusal-to-bargain charges in the present case. By letter dated April 27, 1967, the Union notified the Respondent that the employees would, stop picketing and return to work on Monday morning, May 1, and asked for the reinstatement of the strikers and the employees laid off in December. On Monday morning, May 1, Bragg ac- companied six of the strikers to the laboratory and, presenting them to Lambert Yueh, Jungk's assistant, who came out of the laboratory to meet them, Bragg told Yueh that the six employees were there to go back to work. Yueh said to Bragg and the six strikers that they had been replaced, that there were no openings, but that "the company would be very happy to make a note of their desire to return back to work." The six strikers whom the Respondent thereby refused to reinstate were James Brown, Carrie Feaster, Charlotte Khan, Geneviera Lopez, Thelma Pendarvis, and Fred Smith. D. The Union's Status as Exclusive Bargaining Representative on January 20 and 23, 1967, and Jungk's Asserted Doubt It has been found in the preceding sections of this Decision that the Respondent, acting through Jungk , first announced its unilateral arrangement of a new insurance plan for the unit employees on January 20, 1967, and then, on January 23, 1967, refused to honor President Wang's agreement to the Union's contract-extension proposal, and withdrew recognition of the Union as the exclusive bargaining representative of the employees in the bargaining unit. These are the acts of the Respon- dent which, according to the complaint, constituted an illegal refusal by the Respondent to bargain with the Union, and January 20 and 23, 1967, are there- fore the critical dates for determining the Union's status as exclusive bargaining representative under Section 9 of the Act and the Respondent's obliga- tion to bargain with it under Section 8 (a)(5). There is no dispute, and I find, that the produc- tion and maintenance unit as generally described and covered in the Respondent's and the Union's 1966 contract was, and is , an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. The parties dis- agree, however, as to whether the six employees laid off with the Union 's consent on December 12, 1966, thereafter remained "employees" in the unit and were still in the unit on January 20, 1967. The General Counsel and the Union contend that they remained in the unit and, if necessary, their ap- parent continuing union allegiance should be 10 Several of the employees testified , but Yueh and Jungk denied , that, in an apparent attempt to prevent Bragg from reaching the employees that morning, the doors to the plant had been locked and taped from the inside. The affirmative evidence, though detailed , leaves a question in my mind as to whether the Respondent had taped the doors and, if so, the manner in which they were taped . I make no finding as to whether the Respondent had made such an attempt to isolate the employees . It is not alleged in the complaint as an unfair labor practice and it is not an essential element in determining whether the Respondent had refused to bargain with the Union in violation of Section 8(a)(5) of the Act. 11 James Brown , Carrie Feaster, Ramon Galban, Charlotte Khan , Joseph Kruger, Geneviera Lopez, Thelma Pendarvis, Sam Randolph, and Fred Smith. 118 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respected in determining the Union 's majority on January 20. But I agree with the Respondent that they should no longer be regarded as members of the unit. For, in spite of the contractual provision extending recall rights to laid-off employees for a year, the December 12 layoffs presented a situation which was given special treatment by the parties. The prospect of these six employees' return to work within the reasonable, foreseeable future was negligible under the circumstances recognized by both the Respondent and the Union. Accordingly, I conclude that these 6 employees did not continue as members of the bargaining unit after their December 12 layoff and that, with their exclusion and the exclusion of another employee laid off on the same day , the bargaining unit on the critical dates of January 20 and 23, 1967, consisted only of the 18 employees then on the Respondent's active payroll for the unit. Despite this reduction of the size of the unit from 25 to 18 after December 12, the Respondent did not then dispute the Union 's status as majority and exclusive bargaining representative of the em- ployees in the unit. On the contrary, the Respon- dent continued to deal with the Union as such representative , as was shown both by Jungk 's osten- sible bargaining overture to Glotzer toward a new contract on December 23, 1966, and Wang's con- tinuing conversations with Glotzer and Bragg. Furthermore, unless the evidence rebuts it, the Union's recognized and continuing majority is to be presumed even after the expiration of the 1966 contract on January 14 and up to and including January 23, 1967.12 There are therefore two questions presented in this case with respect to the Union's continuing representative status and the Respondent's continu- ing obligation to bargain with it as such representa- tive. One is whether the evidence rebuts the normal presumption of a continuance of the Union's majority. And the other is whether, regardless of the actual situation , Jungk as the Respondent's representative had a reasonable and honest doubt of the Union's majority on January 20 and 23, 1967. While the two questions are related, they are not necessarily the same,13 and they will therefore be dealt with separately in the light of the evidence in the present case. 1. The Union's status on January 20 and 23, 1967 The General Counsel and the Union rely in part on the rebuttable presumption in favor of the "Sheridan Creations, Inc., 148 NLRB 1503, 1505 ( even absent an originating certification , there is a "presumption of a continued majority status that flows from [an employer 's] recognition of the Union as majority representative " in earlier contracts the last of which has just expired or is about to expire ). For other basic decisions recognizing and discussing this rebuttable presumption " in the interest of industrial stability" in cases of incumbent certified unions which have since had long-term contractual relations with employers , see Celanese Corporation of America, 95 NLRB Union's continuing majority. But they contend, not only that the evidence in the case does not rebut the presumption, but that it affirmatively proves the Union's continuing majority on the critical dates in January 1967. That the evidence does not negate the presump- tion seems clear. For the fact that only 7 of the 18 unit employees had signed the petition objecting to a union-security clause in any new contract with the Union certainly does not show that a majority of the employees in the unit no longer wanted to be represented by, the Union. Nor does the fact that only nine or exactly half of the unit employees,were willing to take the ultimate step of striking in sup- port of the Union as their bargaining agent. As to the affirmative proof of the Union's majori- ty on January 20 and 23, 1967, the General Coun- sel and the Union rely on the fact that nine of the employees did go on strike, and also on what the General Counsel and the Union contend was proof that a substantial majority of the unit employees continued to be current in their dues payments as shown by the Union's records of such payments and the explanation of the entries in these records given by Edward Aysh, the Union's treasurer. Crediting Aysh's testimony and accepting the entries on the Union's records as Aysh explained them, I make the following findings. The Union's practice is not to regard a member as being delinquent in the payment of monthly dues until after the 20th of the month. Even then, a 10- day notice warning a member of possible expulsion is not sent to the member unless his delinquency has continued for 3 months. Late dues payments by members are therefore not uncommon. Nor are dues payments for several months at a time. In view of this lenient, regular practice and the large mem- bership of the Union which presents a handling problem (about 6,000 in the drug division and about 22,000 in the hospital division, according to Aysh), dues payments received by mail often accu- mulate in the office until they can be posted on the members' account cards where the dates of posting appear rather than the dates of receipt. In appraising the evidence which could con- ceivably give some indication of whether a majority of the unit employees still wanted, or no longer wanted, the Union to represent them, I have con- sidered not only the number and identity of those who signed the petition against the union-security clause and the number and identity of those who went on strike, but also the dues-paying status of all 18 of the unit employees on January 20 and 23, 1967, as shown by the Union's records and ex- 664, 671-675 (presumption not rebutted but good-faith doubt by employer held a defense to refusal to bargain charge ), Laystroin Mfg. Co., 151 NLRB 1482, set aside 359 F.2d 799 (C A 7) (court recognized presumption but, contrary to Board , found a bona fide doubt on the part of the employer), United States Gypsum Company, 157 NLRB 652, 654-656. See also Ray Brooks v NLRB , 348 U S 96 13 See the Celanese case, supra, 95 NLRB at 671, and other cases cited in the preceding fn. PURE LABORATORIES, INC. 119 plained by Aysh. The relevant findings fall into several categories. By January 20, 1967, 6 of the 18 unit employees had given clear indication of dissatisfaction with representation by the Union both by signing the petition for relief from continuance of the union- security clause and by either not having joined the Union14 or having discontinued payment of union dues.15 On the other hand, by January 23, 1967, nine of the unit employees gave equally clear indi- cation of their continuing support of the Union as their bargaining representative either by the cur- rency of their dues payments and their engaging in the strike'16 or by their engaging in the January 23 strike even though they were at least a month delinquent in their dues payments.17 Of the remain- ing three unit employees (whose indications of sup- port or rejection of the Union are therefore critical on the question of the Union's majority), I find that on January 23, 1967, only one could be said to have indicated his rejection of the Union by his signature to the antiunion-security petition, (although his January dues payment was posted on January 25)i8 while sufficient indication of the con- tinuing union support of the other two (although they did not strike) is provided by the posting of their January 1967 dues payments on January 2019 and 23, 1967,20 respectively. In sum, upon the evidence of the foregoing indications of the in- dividual unit employees ' continued support or re- jection of the Union, I have concluded that on both January 20 and 23, 1967-the evidence seems to me to be equally valid for both these dates-the Union continued to be the choice of 11 of the 18 unit employees as their exclusive bargaining representative. Consequently, in agreement with the General Counsel and the Union, I find not only that the pre- sumption of the Union's continuing majority on both January 20 and 23, 1967, was not rebutted, but that the preponderance of the evidence affirma- tively establishes that majority on both January 20 and 23, 1967. 2. Jungk's asserted doubt of the Union's majority As noted, in his telephone conversation with Bragg on January 20 and again in his meeting with Bragg and Attorney Weinstock on January 23, 1967, Jungk told them that he doubted that the Union still represented a majority of the employees in his bargaining unit . According to his testimony, his doubt was based upon the fact that employee McCleary had given him the petition objecting to a continuance of the Union's security clause which had been signed by seven or "40 percent" of the employees in the unit. Yet, as McCleary testified, Jungk told him when he first received the petition on December 20, 1966, that for the petition to be significant "You would have to have a majority." Furthermore, although in possession of the petition with the original six signatures, Jungk not only took no step to inform the Union of his "doubt" until January 20, 1967, but, in the meantime, actually told Glotzer in his letter of December 23 that he was ready and willing to negotiate on a new con- tract during the first week of January 1967. Thus, in addition to the obvious fact that even with the seventh signature obtained on January 20, 1967, the petition still fell short of a dissident majority, it seems equally clear from Jungk's conduct that he never had such a reasonable or honest doubt of the Union's majority as would even in his own opinion have justified his withdrawal of the Respondent's recognition of the Union on January 23, 1967. Accordingly, I conclude that on January 20 and 23, 1967, the Union not only continued to represent the employees in the appropriate contrac- tual bargaining unit , but that Jungk's and the Respondent's professed doubt as to the Union's continuing majority was not asserted in good faith and that the Respondent's refusal to bargain was an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW Upon my foregoing findings and my discussion of the evidence, I conclude that: (1) At all material times since 1959, including January 20 and 23, 1967, the Union has been, and is, the exclusive bargaining representative of all em- ployees in the following appropriate unit for pur- poses of collective bargaining within the meaning of Section (a) and (b) of the Act: All employees employed at Respondent's Par- sippany-Troy Hills, New Jersey, plant except executives, members of management, super- visory employees, chemists, and office person- nel. (2) The Respondent, acting through Vice Pres- ident and Manager Norman Jungk, refused to bar- gain collectively with the Union as such exclusive bargaining representative and thereby committed unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act: "Judith Riegel. 15 Joseph McCleary ( whose last payment was on August 12, 1966, for August dues ), Barry McKinnon (whose last payment was an advance pay- ment on November 1, 1966, for dues through December ), and Joan Erbs, Richard Maier, and Michael Sorma (whose last payments in December 1966 paid their dues through that month). 18 James Brown , Carrie Feaster, Ramon Galban , Joseph Krueger, Char- lotte Khan , Geneviera Lopez , and Thelma Pendarvis. Except for Galban, the dues payments of these employees were posted on their records on or before January 20, 1967 Galban's January dues payment was posted on January 23, 1967 1° Sam Randolph ( last payment posted on December 8, 1966, for November 1966 dues ) and Fred Smith ( last payment made on October 20, 1966, for October dues) Irving Tonkin "John Welz. 20 William Kruyd. 120 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (a) By unilaterally announcing to the employees, and instituting, a new life insurance plan to cover the employees in the bargaining unit on January 20, 1967. (b) By refusing on January 23, 1967, to reduce to writing and execute a contract with the Union ef- fective On January 15, 1967, and embracing terms and conditions orally agreed upon in preceding negotiations by Respondent's President Cheng Ching Wang on January 13 or 16, 1967. (c) By withdrawing its recognition of, and refus- ing to bargain further with, the Union as the exclu- sive bargaining representative of its employees in .the appropriate bargaining unit. (3) The strike of the Respondent's employees which began on January 23, 1967, was caused and prolonged by the Respondent's unfair labor prac- tice in unlawfully refusing to bargain with the Union on and after January 23, 1967. (4) By refusing to reinstate strikers James Brown, Carrie Feaster, Charlotte Khan, Geneviera Lopez, Thelma Pendarvis, and Fred Smith on their unconditional application for reinstatement on May 1, 1967, the Respondent discriminated against these employees in regard to their hire and tenure of employment because of their participation in the unfair labor practice strike and to discourage their membership in and support of the Union, and thereby committed unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. (5) The Respondent's aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Sec- tion 8(a)(1), (3), and (5) of the Act, I will recom- mend that it cease and desist therefrom and take certain. affirmative action designed to effectuate the policies of the Act. Having found that the Respondent committed unfair labor practices by discriminatorily refusing to reinstate strikers James Brown, Carrie Feaster, Charlotte Khan, Geneviera Lopez, Thelma Pendar- vis, and Fred Smith on May 1, 1967, I will recom- mend that the Respondent offer each of them im- mediate and full reinstatement to his or her former or a substantially equivalent position without preju- dice to his or her seniority or other rights and privileges, and make each of them whole for any loss of earnings suffered by reason of the Respon- dent's discrimination against him or her by payment to each of them of a sum of money equal to that which he or she would have earned from May 1, 1967, to the date of the Respondent's offer of rein- statement, less his or her net earnings during said period. The backpay in the cases of each of them shall be computed in accordance with the formula stated in F. W. Woolworth Company, 90 NLRB 289. Furthermore, it will be recommended that the Respondent pay interest on the backpay due to each of these employees, such interest to be com- puted at the rate of 6 percent per annum and, using the Woolworth formula, to accrue commencing with the last day of each calendar quarter of the backpay period on the amount due and owing for each quarterly period. Isis Plumbing & Heating Co., 138 NLRB 716. It has also been found that the Respondent com- mitted unfair labor practices by generally refusing to bargain with the Union on January 20 and 23, 1967, and by refusing to reduce to writing and ex- ecute an agreement based upon a written proposal of the Union previously accepted by the Respon- dent. The agreement thus repudiated by the Respondent provided for an extension of the parties' 1966 contract, was complete and intelligi- ble, and is in evidence as General Counsel's Exhibit 3. It made provision, however, for the reopening of the extended contract on wages, hours, and terms and conditions of employment on January 15, 1968. To remedy the Respondent's unfair labor practice in refusing to bargain, and to effectuate the policies of the Act, I shall recommend that, at the option of the Union exercised by it by notice in writing served on the Respondent and the Board's Regional Director for Region 22 within 20 days after the service on the parties of this Decision,'the Respondent shall either (1) execute and deliver to the Union as its binding agreement to expire on January 15, 1969, a copy of General Counsel's Ex- hibit 3, or (2) bargain collectively with the Union as to the terms and conditions of a new contract. I shall also recommend that the Respondent shall thereafter, upon the Union's request and in com- pliance with its statutory obligation, bargain collec- tively with the Union as the exclusive bargaining representative of all employees in the appropriate unit and embody in signed agreements all un- derstandings reached. [Recommended Order omitted from publica- tion. ]