Terry Industries of Virginia, Inc.

TERRY INDUSTRIES OF VIRGINIA Terry Industries of Virginia, Inc. and International Un- ion, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW. Case 5-CA- 4595 February 26, 1971 DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On August 27, 1970, Trial Examiner Benjamin B. Lipton issued his Decision in the above-entitled pro- ceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the at- tached Trial Examiner's Decision. Thereafter Re- spondent filed exceptions to the Trial Examiner's De- cision together with a supporting brief, the General Counsel filed cross-exceptions to the Decision sup- ported by a brief, and the Charging Party filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner as modified herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the Recommended Order of the Trial Examiner and hereby orders that Terry Industries of Virginia, Inc., Winchester, Virgin- ia, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Re- commended Order, as so modified. 1. In the section of the Trial Examiner's Decision entitled "Conclusions of Law," insert as paragraph number 7 the following, renumbering paragraphs 7 and 8 as 8 and 9, respectively: "7. By failing or refusing to offer timely and full reinstatement to all strikers who unconditionally ap- plied therefor, Respondent has engaged in and is en- gaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act." 2. In that section of the Trial Examiner's Decision 745 entitled "The Remedy," insert after the words "46 employees" the following: "and Frank Delawder,". 3. In that section of the Trial Examiner's Decision entitled "Recommended Order," add the following as paragraph 1(c), and reletter the subsequent paragraph accordingly: "1(c) Failing or refusing to offer timely and full reinstatement to all strikers who unconditionally ap- plied therefor." 4. In footnote 25 of the Trial Examiner's Decision, substitute "20" for "10" days. 5. Substitute the attached Appendix A for the Trial Examiner's Appendix A. i The Trial Examiner inadvertently found that only Wharton, Delawder, and Keeler were denied full reinstatement because they were reinstated to or reemployed at lower paying positions The record shows, however, that in addition to those three, Fishel, Funkhauser, McFarland, and Rinard also were denied full reinstatement since they too were reinstated at lower paying positions. Accordingly, we shall order Respondent to make these last four mentioned employees whole also APPENDIX A NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively in good faith with International Union, United Au- tomobile, Aerospace and Agricultural Imple- ment Workers of America, UAW, as the exclusive representative of all employees in the appropriate bargaining unit, as follows: All production and maintenance employees employed at the Winchester, Virginia, plant, including leadmen and utility men, but ex- cluding office clerical employees, watch- men, guards, engineers and supervisors as defined in the Act. WE WILL NOT unilaterally grant wage increases, or change any other term or condition of employ- ment, without prior bargaining thereon with the above-named Union. WE WILL NOT deprive any employees of their seniority credit because they engaged in a strike or other protected concerted activity. WE WILL, upon request, bargain collectively and in good faith with the above-named Union as the exclusive representative of our employees in the appropriate unit and embody in a signed agreement any understanding reached. WE WILL restore in full the seniority credit de- ducted from those employees who engaged in the 188 NLRB No. 102 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike which commenced on November 24, 1969. WE WILL offer to the 46 employees named in Appendix B, and to Frank Delawder all of whom engaged in the strike which commenced on No- vember 24, 1969, reinstatement within 5 days of application therefor, to their former or substan- tially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of earnings they may have suffered, in the manner provided in our Decision and Order. WE WILL NOT fail or refuse to offer timely and full reinstatement to all strikers who uncondi- tionally applied for such reinstatement. TERRY INDUSTRIES OF VIRGINIA, INC. (Employer) Dated By (Representative) (Title) We will notify immediately the above-named individ- uals, if presently serving in the Armed Forces of the United States, of the right to full reinstatement, upon application after discharge from the Armed Forces, in accordance with the Selective Service Act and the Universal Military Training and Service Act. This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, Federal Building, Room. 1019, Charles Center, Baltimore, Maryland 21202, Telephone 301- 962-2822. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE BENJAMIN B. LIPTON. Trial Examiner: On June 2, 1970, a hearing in this proceeding was held before me in Winches- ter, Virginia, in which all parties participated and were per- mitted lull opportunity to adduce relevant evidence. The complaint by the General Counsel alleges that Respondent engaged in certain violations of Section 8(a)(1) and (5) of the Act.' Briefs filed by each of the parties have been duly considered. Upon the entire record in the case,2 and from my observa- tion of the witnesses on the stand , I make the following: i The charge was filed on December 18 and served on December 22, 1969; and the complaint thereon issued on April 24, 1970 2 Certain corrections in the transcript are duly noted FINDINGS OF FACT I THE BUSINESS OF RESPONDENT Terry Industries of Virginia, Inc., herein called the Res- pondent, is engaged in Winchester, Virginia, in the prod- uction and sale of camping trailers. On an annual basis, Respondent has shipped products directly in interstate com- merce valued in excess of $50,000. Respondent admits, and I find, that it is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW,3 herein called the Union, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. Essential Issues 1. Whether Respondent violated Section 8(axl) and (5), by unilaterally announcing (on November 21) and granting (on November 25) wage increases to the employees follow- (g contract negotiations with the Union? 2. If found violative, whether Respondent's conduct caused or prolonged a strike among the employees (on and after November 24)? 3. Whether Respondent violated Section 8(axl) by failing to offer full reinstatement to strikers upon their uncondi- tional application? 4. Whether Respondent violated Section 8(aXi) by de- ducting from the seniority credit of returning strikers the time they were absent from work as a result of the strike? B. Framework of the Issues On September 8, 1966, a Board election was conducted in an appropriate unit of Respondent's production and maintenance employees. Determinative of the election re- sults were the challenged ballots of two discharged employ- ees, the subject of pending unfair labor practice charges. On May 22, 1967, the Board held,4 in substance, that the two employees had been unlawfully discharged; and on June 15, 1967, after their ballots were opened and counted, the Un- ion was certified as representative in the unit. On July 15, 1969,5 Respondent consented to bargain pursuant to the Union's certification. On August 5, the parties commenced their first of 11 negotiating sessions, culminating on Novem• ber 18 without arriving at a contract. Further contacts were made between the parties until November 24, following which there was no further bargaining. On November 24, the Union and employees commenced a strike, which con- tinued through January 5 when it was abandoned and the strikers unconditionally sought reinstatement. There is no allegation of general bad-faith bargaining. It is therefore unnecessary to consider the bargaining sessions in detail except as relevant to the particular issues raised on 3 Although the charge and the complaint indicate the name of the Charg- ing Party as affiliated with "AFL-CIO," official notice is hereby taken that such affiliation is no longer operative. In all respects, such alteration in the Union's name has no substantive bearing on the issues in the case. 4 Terry Industries of Virginia, Inc., 164 NLRB 872, enfd. 403 F.2d 633 (CA. 4), cert. denied 394 U S 918. Official notice is taken of these cases. 5 All dates hereafter are sequentially in 1%9 and 1970, unless otherwise shown. TERRY INDUSTRIES OF VIRGINIA Respondent's conduct in unilaterally announcing and insti- tuting a wage increase. C. Pertinent Evidence In the initial bargaining on August 5, the Union presented a two-page proposal of article and section headings, and also full proposals on preamble, recognition, probationary employees, and break in seniority. On August 21, Respon- dent submitted a written contract proposal. It was left blank on the subject of wages. On August 22, the Union presented certain further proposals, and the parties agreed on pream- ble and recognition. On August 28, Respondent submitted revised proposals on certain subjects, not related to wages. On August 29, there was agreement on certain minor prov- isions. On September 18, the Union's first wage demands were presented and discussed. Theretofore, Respondent had asked the Union for an economic proposal. Respondent rejected the Union's proposed increase in wages , arguing that the employees could earn, if they worked hard enough under the recently-established incentive system, almost as much as the Union sought in the contract. On October 2, Respondent produced a fully revised contract, which con- tained its first wage proposal-consisting of the existing wage structure. On October 3, Respondent informed the Union that it had made its ,"final offer."6 The parties re- viewed the status of the bargaining: They were agreed on preamble, recognition, management rights, hours of work, vacations, leaves of absence, hurt on jobs, and bulletin boards. They were in disagreement on overtime , employee handbook, holidays, loss of seniority, adjustment ofpgnev- ances, the entire insuarnce package , strikes and lockouts, wages, checkoff, jury duty, and bereavement. Neither side had made any proposal on contract duration, and the ques- tion then (an at all times thereafter) remained open. At Respondent's request, the Union agreed to present Respondent's "final" contract proposal to the employee membership meeting scheduled for October 9. On October 9, Respondent's proposed contract was re- jected at the membership meeting. Thereafter, Respondent was so advised by telegram. At the same meeting, a motion was passed to take a strike vote the following week. By letter on October 17, the Union informed Respondent that on October 16 the employees voted to seek permission of the International Union to strike, and further indicated that- "If no efforts is being made toward further negotiation of a contract by the time the International sanction comes through the membership is determined to take strike action." 7 On October 17, Respondent replied to the Union's telegram and suggested a further meeting to negotiate. On November 17, the next bargaining session was held. The discussion involved a review of the previous proposals of the parties, but no further agreement was reached. Respondent reasserted that it had made its final offer. However, the parties mutually decided to call in a Federal mediator. On November 18, the 11th and final bargaining session, arranged by a Federal mediator , was held in the evening. Present for Respondent were Marvin Landon, industrial relations director, and Leroy Armstrong, plant manager; for the Union, Joseph Craig, International representative, James H. Keeler, of the employees' negotiating committee; 6 At the first or second bargaining meeting, the parties agreed that the employees would not be informed regarding the interim status of negotia- tions, but when Respondent had made its final offer , the Union would then tell the employees the terms of the offer in a meeting called for such purpose 7 Advance sanction from the International was necessary for the employ- ees to qualify-for strike assistance. 747 and Federal Mediator Fidandis.8 At the meeting, the re- spective positions were reviewed; the mediator met sep- arately with each side; but no further progress was made. Respondent reiterated that the employees could earn under the incentive program as much as the Union was demand- ing in wage rates. The Union informed Respondent that an employee membership meeting was scheduled for Sunday, November 23, and that until then the Union would be avail- able for further negotiations. Armstrong testified that Lan- don stated he would check with his superiors the next morning as to whether Respondent would or would not amend its economic package, and he would advise the me- diator. According to Armstrong and Landon, but strongly denied by Craig,-Craig stated at the end of the meeting that if there was no checkoff, there would be no contract. On November 19, Mediator Fidandis called Craig's office and left the message : "Terry Proposal-10 cents per hour across the board for all personnel. Add 10 cents to all classi- fications and rates. This is their final offer...... Landon testified that he notified the mediator of his proposal and indicated to him that the wage increase would be imple- mented on Tuesday, November 25.10 On November 20, Craig first received the message, at which time he called the mediator and advised him that he would refer the wage proposal to the membership meeting scheduled on Novem- ber 23. On Friday, November 21, Plant Manager Armstrong as- sembled all the employees for a speech at 3:15 p.m., near the end of the workday. Armstrong testified he told the employ- ees that there were rumors of a strike; that the doors would be open for anyone who wanted to work; that he was in- volved with a focal manufacturer's association which had just completed a wage survey, on the basis of which Respon- dent felt justified in granting the employees a 10-cent per hour across-the-board increase; that the increase had been transmitted to the Union through a Federal mediator,- "but, whether they accepted or rejected it, the increase would be put into effect anyway.... " The wage increase was in fact reflected in the employees' pay beginning as of November 25.11 At the membership meeting on November 23, the employees were told that the 10-cent-wage raise had been transmitted to the Union through the Federal media- tor. Respondent's proposed contract was again reviewed. Concern was expressed by a number of members at the meeting regarding Respondent's method of announcing the wage raise directly to the employees and not offering it to the Union in the recent negotiations, and that "it looked as though the company was trying to drive a wedge between the employees and the union." The proposed contract with the new wage offer was rejected. A motion was then made and carried to begin a strike the next morning. On November 24, after the strike commenced, Union Representative Craig spoke by telephone with Respondent's 8 Except Armstrong, these persons were at the previous bargaining ses- sions-which were also attended by Attorney Scallon, for Respondent, and Dwight Funkhouser, on the employees' committee 9 Respondent's proposed contract contained the provision that the Com- pany ..may terminate or alter the incentive pay program." Apart from this clause, Respondent at no time during the negotiations submitted anything in writing concerning the operation of the incentive program. 10 In discussing the wage increase with his superiors , Landon admittedly did not mention the alleged ultimatum of the Union on checkoff. 11 The testimony of two employees was substantially similar to that of Armstrong, except that one stated Armstrong said the raise would become effective immediately, and the other put it as of the next Monday, November 24. Contrary to Respondent, I find the variations in the testimony concerning the speech are minor and not material, as the substance was that the raise would be immediately instituted regardless of the reaction of the Union or the employees. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attorney, Scallon, in California. Craig testified that he called Scallon to advise him that the Company's proposal had been turned down at the meeting the previous day. Scallon's version, denied by Craig, was that he called Craig at noon, Pacific time, having knowledge of the strike, and the follow- ing conversation ensued: Scallon: "The company offer is still open to 'ou; will you accept it?" Craig: "Without checkoff there s no use in even meeting." Craig also testified that during the strike he attempted, without success, to ar- range further bargaining sessions through the mediator. Respondent was picketed by the Union with three different signs, reading: "We are not second class citizens"; "We want a decent wage, now"; and "Terry is unfair." On Janu- ary 5, the Union sent Respondent a letter that the strike was terminated and that unconditional request for reinstate- ment was made on behalf of 50 specified employees. D. Concluding Findings 1. Refused to bargain violations Respondent contends that when the wage increase an- nouncement was made in Armstrong's speech on November 21 and instituted as of November 25, the parties were at an impasse in bargaining and therefore Respondent was "enti- tled to implement this wage offer." The position is entirely without merit. It is abundantly evident that it was not an "offer" which Respondent conveyed to the Union and the employees but rather a statement of accomplished fact that a specified wage increase would be granted. The element of bargaining was arbitrarily removed by Respondent, as the Union's ac- ceptance or rejection of the "offer" was declared immaterial and the announced wage raise promptly implemented. Armstrong's speech and the actual payroll grant need not be treated separately, as they were essentially part of the same settled decision unilaterally to put through a wage raise. Defining an impasse in resolving a similar issue, the Board has held:" An employer violates his duty to bargain if, when nego- tiations are sought or are in progress, he unilaterally institutes changes in existing terms and conditions of employment .5 On the other hand, after bar&aining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilat- eral changes that are reasonably comprehended within his pre-impasse proposals 6 Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. 5 N L R B v Benne Katz, etc, d/b/a Williamsburg Steel Products Co., 369 U.S. 736 6 NLRB v. Intracoastal Terminal, Inc, et al, 286 F 2d 954 (C A 5) Even assuming, without deciding, that a general impasse in the bargaining existed as of November 18, the new wage "offer" by Respondent on November 19 would have clearly 12 Taft Broadcasting Co, 163 NLRB 475, 478 operated to break the impasse. It is only where the parties bargain to an impasse after a wage offer is made that the employer may be entitled unilaterally to implement the same amount proffered the union.13 Conversely, the justifi- cation in acting unilaterally does not extend to an employer before the new offer is made as to which there has been no bargaining, as here. Whether Union Representative Craig stated in the final moments of the meeting on November 18 that there would be no contract without a checkoff-in itself would not es- tablish the existence of an impasse; nor in any event would it license Respondent to act unilaterally, as it did, on a mandatory subject of bargaining,-wages.14 Accordingly, I find that Respondent, in announcing and granting a wage increase to the employees without bargain- mg thereon with the Union, violated Section 8(a)(1) and (5).15 E. Unfair Labor Practice Strike Plant Manager Armstrong's November 21 speech an- nouncing the wage increase unmistakably revealed to the assembled employees Respondent's final disposition, at this stage of the bargaining, to bypass the Union and take the matter into its own hands. Thus, acting unilaterally on the vital subject of wages, Respondent severely undercut the Union in the eyes of the employees and derogated its stat- utory status as representative. At the membership meetings on October 9 and 16, the employees had voted to seek strike sanction from the Inter- national in the event of a future definite decision to strike. On November 18, while bargaining was in progress, the Union advised Respondent of a membership meeting to be held on Sunday, November 23. At this membership meet- ing, the topic of Respondent's unilateral wage raise was under discussion and an explicit reaction, understandably, was that Respondent was "trym i to drive a wedge between the employees and the union. 'The employees then voted to strike the next morning. I am of the opinion that the employees' decision to under- take an immediate strike was precipitated in material part by the unilateral wage raise. This unfair labor practice of Respondent's was, I find, unquestionably a factor in the strike. Therefore, Respondent had the burden, which it failed to sustain, of showing that the strike would have occurred and continued as long as it did even if Respondent had not engaged in the unlawful conduct.16 It is concluded that the Respondent's unilateral wage action was an aggra- vating cause of the strike at its inception, and in any event operated to prolong the strike, thereby constituting the strike an unfair labor practice strike.17 F. Reinstatement of Strikers Respondent was obligated to reinstate the unfair labor practice strikers to their former or substantially equivalent positions upon their unconditional application at the end of 13 N.L.R.B v. Crompton-Highland Mills, Inc., 337 U S. 217 14 It is found that Craig made some such statement, but especially in the absence of showing a relevant background or broader context to illuminate its significance, this utterance cannot be regarded as more than tactical. 15 N.L R B v. Benne Katz, etc, d/b/a Williamsburg Steel Products Co, 369 U S 736; Massey-Ferguson, Inc, 184 NLRB No. 69 16 Philip Carey Manufacturing Company, etc v. N L.R.B., 331 F.2d 720,729 (C.A 6), cert. denied 379 U S. 888 1' See, e g, Pennsylvania Glass Sand Corp, 172 NLRB No. 54, enfd 401 F 2d 774 (C A D C.), J H Bonck Company, Inc, 170 NLRB No. 164. TERRY INDUSTRIES OF VIRGINIA the strike, and to discharge, if necessary, all replacements hired during the strike-" The complaint specifically alleges that Respondent failed and refused to offer full reinstatement to strikers who made unconditional applications to return to work. Although it is not otherwise made explicit therein, the complaint is thus to be construed as alleging a violation of the Act, particularly as the question was litigated. On January 5, the Union wrote Respondent that it elected to terminate the strike and that it unconditionally requested reinstatement of the strikers, attaching a list of the names of 50 such employees. It further stated that "we have in- structed our members not to report to work until the begin- ning of the shift on Tuesday, January 8, 1970. If you wish any or all of these employees to begin working earlier, please contact them directly." Under the usual formula, the unfair labor practice strikers here involved were entitled to reinstatement 5 days after the date on which they applied for reinstatement. It was stipulated 19 as follows: Respondent received the above letter from the Union on January 6. Of the 50 strikers 20 on the list attached to the letter, 42 employees were offered reinstatement on various specified dates on and after January 27; 2 employees (Hicks and Bowman) were not offered reemployment; 4 employees "should not be considered further for the purpose o this case"; and the status of 2 employees (Anderson and Robert Gray) could not presently be determined.21 Before the strike, Lewis Wharton and Frank Delawder were classified as utility men at $2.50 per hour. Both were reemployed as assemblers at $2.25 per hour 22 James H. Keeler testified he was a leadman prior to the strike but was reinstated as an assember. Accordingly, it is evident that at least 44 named employ- ees were denied timely reinstatement, and that at least 3 employees were denied full reinstatement-which conduct by Respondent I find violative of Section 8(axl). G. Deprivation of Seniority Credit As stipulated, strikers who were absent more than 7 work- ing days were, upon their return to work, given new seniori- ty dates computed by adding to the recorded date of their original hire the number of days they were absent from the start of the strike until their reinstatement. This constituted a discrimination and direct interference with the employees' protected right under the Act to engage in a strike and concerted activity-in violation of Section 8(a)(1). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operation of Res- pondent as described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes, burdening and obstructing commerce and the free now of commerce. 18 Mastro Plastics Corp, et al v N.LR.B, 350 U.S. 270. 19 G C Exh 9, received after the close of the hearing, is hereby admitted in evidence, 20Immediately prior to the strike, there were 99 employees in the appropri- ate unit. 21 Attached as Appendix B hereto is the list of employees as annotated by the parties to reflect their stipulation 22 Delawder returned to work on December 3, and Wharton on February 6 V THE REMEDY 749 Having found that Respondent has engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. It has been found that the strike by Respondent's employ- ees was caused and prolonged by the unfair labor practices of Respondent, and that the strikers were therefore entitled to reinstatement upon application irrespective of whether their positions hadbeen tilled by replacements. It has been found that Respondent unlawfully denied timely reinstate- ment to 44 named strikers and that it denied full reinstate- ment to 3 named strikers . While the question of reinstatement has been litigated as to all but two of the strikers (Anderson and Robert Gray), the issues of reins- tatement and backpay are nevertheless relegated to the usu- al compliance investigation following Board decision, having available the evidence in this record . Accordingly, to effectuate the policies of the Act, it is recommended that Respondent offer all 46 employees whose names appear in Appendix B hereto reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or other rights and privileges, dismissing if necessary any persons hired as re- placements during the strike, and make them whole for any loss of pay they may have suffered or may suffer by reason of Respondent's refusal, if any, to reinstate them, by pay- ment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from 5 days after the date on which he applied for reinstate- ment to the date of such Respondent's offer of reinstate- ment.23 It has been found that Respondent unlawfully deprived the strikers of seniority credit during the period they were absent by reason of the strike. It is therefore recommended that Respondent rescind such action and re- store the affected strikers to their full seniority status with- out the deduction of the period of absence from the start of the strike until their reinstatement . Backpay shall be com- puted on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Further , it is re- commended that Respondent preserve and make available to the Board, upon request, all payroll records , social securi- ty payment records, timecards, personnel records and re- ports , and all other records necessary and useful to determine the amounts of back ay due and the rights of reinstatement under the terms of these recommendations. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees at Respondent's Winchester, Virginia, plant, including lead- men and utility men, but excluding office clerical employ- ees, watchmen, guards, engineers, and supervisors as defined in the Act, constitute an appropriate unit for the purpose of collective bargaining within the meaning of Sec- tion 9(b) of the Act. 23 See J H Bonck Company, 170 NLRB No. 164 (TXD) 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. The strike in progress from November 24, 1969, until January 5, 1970, was caused and prolonged by the unfair labor practices of Respondent, and was therefore an unfair labor practice strike. 5. The Union has been at all times since June 13, 1967, the certified statutory representative of all employees in the aforesaid unit for the purpose of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 6. By unilaterally announcing and granting a wage in- crease to its employees without bargaining thereon with the Union, Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(ax5) of the Act. 7. By the foregoing, and by depriving its employees of seniority credit because they engaged in a protected strike and concerted activity, Respondent has interfered with, re- strained, and coerced employees in the exercise of their rights guaranteed in Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of law, and upon the entire record in the case, it is recommended that Respondent, Terry Industries of Virgin- ia, Inc., Winchester, Virginia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with the International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, UAW, as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees at the Winchester, Virginia, plant, including leadmen and utility men, but excluding office clerical employees, watchmen, guards, engineers and supervisors as de- fined in the Act. (b) Unilaterally announcing and granting wage increases, or changing any other term or condition of employment of the employees, without bargaining thereon with the above- named labor organization. (c) Depriving employees of seniority credit because they engaged in a strike or concerted activity. APPENDIX B List of Employees Being Offered For Reemployment Upon Termination of Strike Anderson , Donald Belford, Robert 2/16/70 Bly, Richard 2/9/70 Borror , Chester 1/27/70 Bowman, Gary none Bursey , Robert 1/28/70 Creswell, Gerald Jr. 3/9/70 Creswell, Leslie 1/27/70 Darr , Ronald 2/6/70 Davis, Carroll 1/28/70 DeHaven, Elsworth 2/17/70 Fishel, Gerald 2/23/70 Finley, Samuel 3/9/70 Funkhouser, Dwight 3/9/70 Gray, Harold Jr. 3/9/70 Gray, Robert Hicks, Carl none Holliday, Elwood 3/9/70 Holliday, John Jr. 2/23/70 Keeler, James 1/30/70 Ludwig, Gorman 2/10/70 McFarland, Elmer 2/23/70 McFarland, Lewis 1/30/70 Malone, Marshall 1/28/70 Owens, Randall 3/16/70 Peer, James 2/17/70 Rinard, Vaughn 2/9/70 Ritter, Virgil 2/17/70 Shanholtz, Robert 2/23/70 Smith, Grover 1/30/70 Smith, Jack 1/30/70 Smith, Wayne 2/16/70 Spaid, Charles, Sr. 2/16/70 Spaid, Richard 2/17/70 Strawderman, Ivan 2/6/70 Swisher, Thomas 2/16/70 Thompson, Roy 1/30/70 Walker, William 3/2/70 Welsh, Roger 2/18/70 Wharton, Lewis 2/6/70 Wilkins, Vernon 2/6/70 Wolfrey, Clarence Jr. 2/16/70 Wymer, Gerald 2/2/70 Kemp, Randall 1/30/70 Reynolds, Richard 1/28/70 Swick, Steven 2/16/70 TERRY INDUSTRIES OF VIRGINIA 751 (d) In any like or related manner interfering with, re- straining, or coercin employees in the exercise of their nghts guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed the ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the above- named labor organization as the exclusive representative of all employees in the appropriate unit, andpembody in a signed agreement any understanding reached. (b) Upon application, offer reinstatement to their former jobs or, if those jobs no longer exist, to substantially equiva- tent positions, without prejudice to their seniority or other rights and privileges to the 46 specified strikers, and make each such person whole for any loss of earnings he may have suffered, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. (c) Notify any of the above employees, if presently serv- ing in the Armed Forces of the United States, of his right to full reinstatement in accordance with the Selective Serv- ice Act and the Universal Military Service and Training Act, as amended, after discharge from the Armed Forces. (d) Restore to all strikers who were deprived of seniority credit for the period of their absence by reason of the above- described strike, in the manner set forth in "The Remedy" section of the Trial Examiner's Decision. (e) Preserve and make available to the Board or its agents all payroll and other records, as set forth in "The Remedy" section of the Trial Examiner's Decision. (f) Post at its Winchester , Virginia, place of business and facilities copies of the notice attached hereto as "Appendix A."24 Copies of said notice, on forms provided by the Re- gional Director for Region 5, shall , after being duly signed by Respondent, be posted immediately upon receipt there- of, in conspicuous places, and be maintained for 66 consec- utive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (A^) Notify the Regional Director for Region 5, in writing, within 20 days from the date of this Trial Examiner's Deci- sion and Recommended Order what steps Respondent has taken to complay herewith.25 24 In the event no exceptions are filed as provided by Sec . 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, recommendations and Recommended Order herem shall, as provided in Sec. 102.48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order, and all objections thereto shall be deemed waived for all purposes . In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals E forcing an Order of the National Labor Relations Board " 25 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order , what steps Respondent has taken to comply herewith "