Sweeney & Co., Inc.

208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sweeney & Co., Inc. and Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, Local 173. Cases 23-CA-2914 and 23-CA-3079 May 28, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On December 26, 1968, Trial Examiner Phil Saunders issued his Decision in the above-entitled proceeding , 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 attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that these allegations be dismissed. Thereafter, the General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief. Respondent filed exceptions and cross-exceptions to the Trial Examiner's Decision and a brief supporting such cross-exceptions and in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent herewith. Respondent, a wholesale grocery operation, is engaged in the sale and delivery of groceries to retail stores from the warehouses it operates in San Antonio, Laredo, and McAllen, Texas. McAllen, the facility involved herein, is the only one of Respondent's warehouses where employees are represented by a union . The McAllen warehouse is divided into three basic departments: IBM, produce, and grocery. The IBM department's principal function is inventory control of merchandise in the warehouse and the handling of customer orders and billing. The produce and grocery departments constitute the warehouse proper. The primary function of the produce department is the supply of fruits and vegetables to Respondent's customers. It has 8 to 10 employees and their hours of work vary according to need. The grocery department is the principal department of the warehouse and it has 176 NLRB No. 27 some 20 to 25 employees. Since 1966, the employees in these departments have worked in two shifts. Until December 1967 Respondent also operated at McAllen a Home Center Department which carried some 1,500 products such as kitchen utensils, hardware materials, and several items of clothing. Sometime prior to October 1967, corporate officials in San Antonio decided to transfer the home center operations from McAllen to a similar department at its San Antonio warehouse. Upon being so directed, plant manager Miller began to deplete home center merchandise at McAllen and have customers place their orders at San Antonio. By December 1967 the home center operations at McAllen were completely phased out. In the spring of 1966 the Union began an organizing campaign among Respondent's McAllen employees. After a hearing on the Union's petition, the Regional Director directed an election in a unit of approximately 47 employees consisting of: All employees, including warehousemen and helpers, truckdrivers, and clerical employees, employed at the Employer's facility at McAllen, Texas, excluding all buyers, salesmen, guards, watchmen and supervisors as defined in the Act. The Union received a majority of the ballots cast in the election held September 19, 1966, and was certified as exclusive collective-bargaining representative on September 26, 1966. Thereafter, Respondent and the Union participated in bargaining sessions on January 10, 1967, and frequently thereafter until their last meeting on April 19, 1968. The complaint alleges that between the time of the Union's certification and the last bargaining session, Respondent on numerous occasions engaged in conduct proscribed by the Act. Specifically, it alleges Respondent violated Section 8(a)(1) of the Act by soliciting employees to withdraw their support of the Union; threatening employees with loss of economic benefits because of employee union support; promising increased benefits to employees for withdrawal of their support from the Union; and illegally interrogating employees about their union sympathies and activities. It further alleges that Respondent violated Section 8(a)(3) by discharging employee Garcia because of his activities on behalf of the Union, and violated Section 8(a)(5) by refusing to bargain with the Union over checkoff, refusing to make the Union an offer on wages, unilaterally closing the home center without notification to the Union and overall bad-faith bargaining . Finally, the complaint in Case 23-CA-3079 alleges an additional violation of Section 8(a)(3) based on Respondent's refusal to reinstate upon their unconditional application employees who participated in the strike which commenced on February 11, 1968. 1. The Trial Examiner found, and for reasons stated in his Decision we agree, that Respondent, SWEENEY & CO. 209 through supervisor Villerreal, violated Section 8(a)(I) of the Act by promising increased wages and other benefits to employee Islas if Islas would cease his activity on behalf of the Union. Contrary to the Trial Examiner, however, we find that Villerreal further violated Section 8(a)(I) of the Act by his statements to employee Guajardo. The record reveals Guajardo is one of the seven employees who work the midnight to 7 a.m. shift in Respondent's produce department. Sometime in 1966 Respondent effected a 20-cent "night premium" for employees who worked the 2 p.m. to midnight shift in the grocery department. No premium, however, was paid to night shift employees in the produce department. Guajardo testified that in February 1968 Villerreal told him that while the Company was negotiating with the Union, the Company could not consider the idea of granting the premium pay to employees in the produce department, but after the negotiations were over or the plant was back the way it was before, maybe the company would give the employees in the produce department the 20-cent night premium.' Unlike the Trial Examiner, we are of the opinion that the import of Villerreal's statement is that but for the presence of the Union, produce department employees would have received the long withheld, night-shift premium. Accordingly, we reverse the Trial Examiner and find this statement was a violation of Section 8(a)(1) of the Act. 2. The General Counsel excepts to the Trial Examiner's failure to find that Respondent committed additional violations of Section 8(a)(1) through the conduct of Ernest Hodges. In dismissing the allegations pertaining to Hodges, the Trial Examiner found Hodges was neither a supervisor nor an agent of Respondent. Accordingly, the Trial Examiner found Hodges' conduct not attributable to Respondent and dismissed those portions of the complaint without passing on the merits. We disagree. The record reveals that Hodges is one of the 10 or 11 individuals working the night shift. In the absence of night manager Miller (from approximately 5 p.m. until midnight), Hodges is responsible for seeing that the work on the shift is done as required. He testified that if an employee were slow, "I might ask him was something wrong or what his problem was." Sometimes he tells 'Villerreal in his testimony admits this conversation occurred, but denies that night shift premiums were mentioned . Instead, he claims that the discussion related to the 20-cent general increase the Company was offering as a result of the new minimum wage laws. Guajardo's version is credited as the more plausible account. The denial of night premium had been a major grievance of the produce employees for about a year Villerreal admits that this issue had been the subject of recurring conversations during this period. He further admits to the conversation with Islas which corresponds in material respects to Guajardo's account of what Villerreal told him . Furthermore, it is unlikely that Villerreal would have been talking about the 20-cent general increase, as distinguished from the 20-cent night-shift differential since Guajardo did, effective February 1, 1968, enjoy at least a 15-cent-per-hour general increase , under the Employer's position with respect to the minimum wage changes. employees to work faster. He has moved employees from job to job and on occasion, if he determined an employee had good reason for asking, he has granted time off. He further testified that if work remains to be done at the end of the shift and employees want to leave, "I just tell them there is work to be done." He is paid considerably more than rank and file employees with whom he works and receives the same amount of paid vacation as Miller and Villerreal, admitted supervisors. The record further reveals that Respondent's employees consider Hodges as their supervisor and their beliefs have been reinforced by the activities of Respondent. Thus, on an occasion when employee Garza hesitated at carrying out Hodges' instructions to move charcoal Hodges told him he was fired. Plant manager Isenberg, although intervening and retaining Garza, told him that Hodges indeed had authority to fire him. On another occasion when employee Garcia got into a dispute with Hodges about the order in which certain work should be done, Miller told Garcia that Hodges "was in charge" and Garcia should do what Hodges told him. Contrary to the Trial Examiner, we are satisfied that these statements by acknowledged management officials, when construed in the light of Hodges' position as the sole representative of Respondent in the grocery department on a regular basis and during substantial periods on the night shift, were clearly calculated to impress employees with the fact that Hodges was their boss and had the power to back his instructions through the exercise of supervisory authority. In these circumstances, including Hodges' responsibility for night shift operations, his authority to assign and direct work, grant time off, his apparent authority to discharge, as well as his status as the only management representative in the grocery department after 5 p.m. we find that Respondent is responsible for the conduct of Hodges set forth below.' Hodges testified that he had a conversation with Garza in February 1968, and told Garza that the employees at Respondent's unrepresented plants in San Antonio and Laredo had received better benefits than those at McAllen, and that McAllen employees, without a union, might get better benefits. Specifically, San Antonio and Laredo employees were receiving 2 weeks' vacation and had a credit union. Hodges freely admitted he_ was in accord with the Company's opposition to the Union and that in his conversations with Garza (and other employees)"...I was expressing my feelings toward the whole thing, the Union, and if my opinion would have any effect on his opinion, well, so much the better." On these facts, and those set forth in the discussion of the refusal to bargain, infra, we are of the view that Hodges' statements comparing the 'Howard Johnson Company. 172 NLRB No. 90; Technical Maintenance Inc.. 172 NLRB No. 60. 210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefits received by unrepresented employees with lack of benefits enjoyed by those represented by the Union and that benefits similar to those enjoyed at Respondent's nonunion plants might be granted if the Union were eliminated, were calculated to influence a withdrawal of Union support. Accordingly, we find that by said conduct Respondent violated Section 8(a)(1) of the Act. 3. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent violated Section 8(a)(3) of the Act by discriminatorily selecting Hector Garcia for discharge upon the closing of its home center department on December 16, 1967 . In dismissing these allegations the Trial Examiner concluded that closure of the department was justified on economic grounds. He further found that Respondent had not violated Section 8(a)(5) of the Act since the Union was informed of the decision to close the center and afforded the opportunity to bargain with respect thereto. Thus, he found Garcia's termination directly attributable to the closing of the center and since there was no longer any work available, he further found the evidence insufficient to support a finding that the discharge was discriminatorily motivated. We agree that the termination of the center's operations was economically motivated and that the Union received prior notification of the closure and was afforded an opportunity to bargain on that issue.` We find, nonetheless , merit in the General Counsel's exception to the Trial Examiner's failure to find Garcia was selected for discharge because of his Union activities. In reaching this conclusion, we are guided by the following considerations. The facts show that Garcia entered the Respondent's employ in August 1959, and his employment remained uninterrupted until his discharge on December 16, 1967. When initially hired, Garcia worked primarily at placing the state tax stamp on cigarette packages. In addition, he performed various other jobs throughout the warehouse . In 1963, when Respondent 's installation of a cigarette stamping machine resulted in a reduction in the amount of time required for stamping cigarette packages, Garcia was also given the responsibility of taking care of the home center department. Additionally, the record shows that since 1963 Garcia has been qualified to operate, and has operated , various pieces of equipment in the warehouse operation including the fork lift and towmotor. In fact, he has worked at virtually every job in the warehouse. In 1967 , he was classified as an order puller and paid the minimum wage of $1.40 per hour as were the other 10 to 12 order pullers. Although he continued spending considerable time in the home center, because he was qualified to perform every 'We do not however adopt the Trial Examiner's statements regarding the applicability of N.L.R.B. v. Darlington Manufacturing Company . 380 U.S. 263. to the facts of the instant case. job in the warehouse he spent the remainder of his time in the role of a utility worker. It is undisputed that during the time he spent in Respondent's employ, Garcia was never discharged, laid off, warned, or had his work criticized. Indeed, on one occasion, Miller praised him for having gotten a customer for the Company and complimented him on his job performance. Upon the advent of the Union in 1966, Garcia became one of its leading adherents in the plant. He was the Union's observer during the 1966 election and was elected Union chairman after the Union's victory. Upon the commencement of bargaining with the Company, Garcia was one of the employees on the negotiating team and assumed an active role therein. Respondent in October 1967, received directions from the corporate headquarters in San Antonio to close down the home center. It thereupon began its phaseout. On December 16, 1967, Garcia was summoned to Miller's office and told that due to the closing of the center his services were no longer needed and, hence , he was being terminated. Respondent contends it declined to offer Garcia a position elsewhere in the plant because all positions were filled at that time. In our opinion, Respondent's explanation that it terminated Garcia because, if it had not, some other employee would have to be discharged is not reflective of the true motivation underlying Garcia's layoff. The background evidence, clearly establishes that Respondent, during the initial organization drive, openly opposed employee efforts to secure union representation. Shortly after the discharge of Garcia, Respondent, through its supervisors, engaged in unlawful efforts to induce employees to withdraw their support of the Union. Garcia, himself, was closely identified with the Union, having served as a Union observer during the election, and as an employee-member of the Union's negotiating team which was engaged in bargaining through the period of his discharge. The termination occurred with no effort by Respondent to seek alternative employment for him-and this despite the fact that during his 8 years employment with Respondent, Garcia, though paid at the basic minimum wage, had a work history which shows a level of competency that enabled him to perform a variety of tasks in Respondent's warehouse, and which was unmarred by formal discipline. Nevertheless, at the time of the discharge, Respondent's payroll included at least five employees with less than 1 year of service. Two other employees, with far less seniority than Garcia, also worked part time in the Home Center, but were retained after termination of this operation. Furthermore, although the decision to terminate the Home Center was made in October, Respondent in November, and about 3 weeks before Garcia's discharge, hired one Ramirez to perform a job for which Garcia was qualified.' It also appears that SWEENEY & CO. 211 notwithstanding the fact that Respondent's employees were then working a 50-hour week, Respondent elected to terminate Garcia, rather than utilize this able employee, of long standing, as a means of offsetting overhead expense. In our opinion, the total circumstances amply establish that Respondent's unwillingness to find an alternative to the discharge of Garcia, can only be explained as part and parcel of an effort to discourage employee support of the Union by the discharge of a senior employee with a good work record whose only possible fault lay in his close identification with the Union's efforts to secure representation of Respondent's employees, and thereafter to negotiate a collective-bargaining agreement. Accordingly, we find, contrary to the Trial Examiner, that Respondent discriminatorily selected Garcia for discharge and thereby violated Section 8(a)(3) and (1) of the Act. 4. The General Counsel has excepted to the Trial Examiner's failure to find that Respondent engaged in a course of bad-faith bargaining throughout the negotiations. We find merit in this exception. The first bargaining session was held on January 10, 1967, with negotiations thereafter on various dates through December 13, 1967. On February 11, 1968, the employees struck. On April 19, 1968, pursuant to the Union's request for a resumption of negotiations, the parties again met, but no agreement was reached. No further meetings were held. At the first negotiation session, Respondent stated its opposition to any collective-bargaining contract being retroactive to the date of certification, its opposition to a maintenance of standards clause and any provision concerning seniority, and its opposition to checkoff stating that the collection of dues was the Union's business. At the ensuing sessions, the parties were able to reach agreement, mainly through concessions by the Union, on procedural provisions and matters of contract language. Thus, accords were reached on the agreement clause, management rights, the intent and purpose clause, overtime after 40 hours of work union visitation, jury duty, bulletin boards, hours of work, grievance procedure and arbitration, and a no-strike-no lockout clause. No agreement was ever reached on the Union's demands concerning a wage iiease, increased vacations, employer financed health and welfare, additional holidays, overtime on the sixth and seventh days of work, maintenance of standards, unit work, union security, and night-shift differentials. The Trial Examiner, in dismissing the alleged violation of 8(a)(5) and finding the Respondent bargained in good faith, stated that: The record in this proceeding of the negotiations and the proposals by the Respondent, its 'Although testimony indicates that Ramirez was hired on a temporary basis, he remained in the employ of Respondent at the time of the hearing availability and participation on 14 different occasions since the Union was certified, and its willingness to sign an agreement, clearly establishes that the Respondent's conduct in the course of these dealings was in keeping with the spirit of the Act. We disagree. The duty to bargain collectively, as defined in Section 8(d), requires the parties to "meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment, or the negotiation of an agreement. . . ." Although this obligation does not "compel either party to agree to a proposal or require the making of a concession,"` Section 8(d) does contemplate a willingness to enter negotiations "with an open mind and purpose to reach an agreement consistent with the respective rights of the parties."' Simply entering "upon a sterile discussion of union-management differences is not sufficient."' Essentially, "the ultimate issue of whether the Company conducted its bargaining negotiations in good faith involves a finding of motive or state of mind which can only be inferred from circumstantial evidence."" Where, as in the instant case, an employer has engaged in lengthy negotiations, which produced little more than a strike, the question is whether "it is to be inferred from the totality of the employer's conduct that he went through the motions of negotiation as an elaborate pretense with no sincere desire to reach agreement, or that he bargained in good faith but was unable to arrive at an acceptable agreement with the Union."' In our opinion, Respondent's conduct during course of negotiations, both at and away from the bargaining table, evidenced no real intention of entering an agreement but a desire to produce a stalemate as a means of frustrating bargaining and undermining the statutory representative. At the outset of negotiations Respondent announced its firm opposition to contract retroactivity, maintenance of standards, seniority, and checkoff. Respondent adhered to those positions throughout. The areas of agreement were limited to such provisions as management rights and no-strike guarantees, matters of language and other terms which were not reflective of improved terms of employment in the collective-bargaining unit. With respect to the critical economic issues, prior to the strike Respondent was unwilling either to agree, or make a concession to the Union's demands for an improvement in overtime benefits, holidays, health and welfare, overtime, premium pay for produce 'N.L R B. v. American National Insurance Co., 343 U.S. 395, 402, 404. 'L. L. Majure Transport Co. v. N.L.R.B.. 198 F.2d 735, 739 (C.A. 5); Globe Cotton Mills v. N.L.R.B., 103 F.2d 91, 94 (C.A. 5). 'N.L.R.B. v. American National Insurance Co., supra. 402. 'N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139-140 (C.A. I), cert. denied 346 U.S. 887. 'Ibid. 212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD department personnel, vacations, and maintenance of standards. On the issue of wages, Respondent in October 1967, made its sole prestrike economic concession, namely an offer of a 2-cent-per-hour increase, which it indicated would be completely absorbed by the new increase in the Federal minimum wage scheduled for February 1, 1968. Although Respondent, by letter dated January 19, 1968, advised the Union that it was planning to offer the 20-cent increase required by Federal law to those paid at the minimum wage, and also to grant a like increase to those enjoying more than the minimum rate, no similar offer was made to the Union in the course of the 13 earlier negotiating meetings, and this letter, sent just before the effective date of the new minimum wage requirements, can hardly be viewed as a proposal emanating from the give and take of good-faith collective bargaining. After the strike, which resulted in replacement of all strikers, Respondent though adhering to its former position in all other areas, indicated that it would be agreeable to an additional half-day holiday on Christmas eve as well as a 5-cent night-shift premium for employees in the produce department. At that time, a representative of the Union pointed out that the Respondent's concessions would result in a new contract costing Respondent a mere $680 in economic improvements, and shortly thereafter this last negotiation session ended without further resumption of collective bargaining. The Board has stated that an employer's proposals may be taken into account in assessing its motivation in collective-bargaining negotiations."' Thus, rigid adherence to proposals, which are predictably unacceptable to the employee representative, may be considered in proper circumstances as evidencing a predetermination not to reach agreement." In the instant case, Respondent's position with respect to economic issues, considered in the light of the employment benefits enjoyed by its work force at the outset of negotiations, was generally lacking in concessions of value and is strongly suggestive of an intention on its part to engage in sterile discussions, accompanied by illusory and meaningless concessions, without real intention of engaging in the type of bargaining that could lead to execution of a labor contract. It would be unreasonable to assume that Respondent's attitude with respect to economic issues was taken without anticipating that communication of its views to the Union would create anything other than immediate stalemate. We do not, however, rely solely upon Respondent's position at the bargaining table to find a failure to bargain in good faith herein. For, other evidence clearly reveals an intention on Respondent's part to produce a stalemate and "East Texas Steel Carting Company, Inc.. 154 NLRB 1080, 1081. 'Fitzgerald Mills Corporation, 133 NLRB 877, 882, enfd. 313 F.2d 260 A. A. 2), art. denied 375 U S 311 frustrate negotiations as a means of ultimately eliminating the Union as statutory representative of its McAllen employees . As indicated , Respondent in addition to its McAllen facility operated warehouses in San Antonio and Laredo , Texas . The employees at these latter locations were unrepresented. In February 1967, employees at McAllen and San Antonio received the same base rate of $1 .40 hourly and l week 's vacation . Although Respondent in its bargaining with the Union at McAllen at no time intimated a willingness on its part to accelerate the minimum wage increases scheduled to come into effect in February 1968, or to make a counterproposal to the Union's demands for improved vacations, in the course of those negotiations the unrepresented employees at San Antonio were granted a 2-week vacation after 5 years' service, and all had received the minimum wage increases by November 1967. Furthermore, despite Respondent 's failure to make a significant counter offer to the Union 's demand for a 10-cent increase , in 1967 it granted such an increase to Laredo' s employees. It is apparent, therefore, that Respondent actually conferred benefits on employees at its unrepresented facilities, which it was unwilling even to propose to the Union during the course of negotiations at McAllen . At the same time, Respondent, through its supervisors and agents, utilized this disparity as a means of exploiting the Union's fruitless efforts to secure a contract . Thus, McAllen 's employees were told that their counterparts at Laredo and San Antonio were enjoying better benefits, which they would share in were it not for the Union. This conduct, which together with the discharge of Garcia without regard for his length of service and reputation as a worker , was part and parcel of an overall scheme to disparage the Union in the eyes of unit employees and undermine its representative status. Considered in the light of the foregoing, Respondent's inflexibility at the bargaining table could only be viewed as interwoven with an unlawful pattern of conduct calculated to frustrate bargaining, avoid a contract , force a strike, and through permanent replacement of strikers and other means undermine the Union. Accordingly, we find that Respondent , through its overall course of conduct , failed to comply with the statutory duty to bargain in good faith and thereby violated Section 8(a)(5) and ( 1) of the Act. 5. The General Counsel has excepted to the failure of the Trial Examiner to find that the strikers in Case 23-CA- 3079 are unfair labor practice strikers . The record reveals that the employees voted to strike because of Respondent's discharge of Hector Garcia and because of their belief that the Company was not bargaining in good faith. Additionally, the record shows the strikers applied unconditionally for reinstatement on April 19, 1968, and were not reinstated by Respondent. As we have found Respondent violated Section SWEENEY & CO. 213 8(a)(3) of the Act by discharging Garcia and Section 8(a)(5) by its bad-faith bargaining, we find merit in General Counsel's exceptions. We therefore find that the strike of the Company's employees which commenced on February 11, 1968, was caused and prolonged by the Company's discriminatory discharge of Garcia in violation of Section 8(a)(1) and (3) of the Act and refusal to bargain in good faith in violation of Section 8(a)(1) and (5) of the Act and thus was an unfair labor practice strike at its inception. Accordingly, Respondent's refusal to reinstate the strikers upon their application was an additional violation of Section 8(a)(1) and (3) of the Act.' 2 Tim REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. As we have found that Respondent discharged Hector Garcia in violation of Section 8(a)(3) and (1) of the Act, we shall order that Respondent offer to Garcia immediate reinstatement to his same or substantially equivalent position with full restoration to seniority and other benefits he would have enjoyed had he not been discriminated against. Although we do not require that Respondent restore its home center operations at the McAllen facility, the record reveals that Garcia can and has performed several other jobs at the facility. Accordingly, for purposes of this section of the Remedy, "same or substantially equivalent position" shall be construed to mean any of the jobs at McAllen which Garcia formerly performed as a utility man. As Respondent has discriminated against the unfair labor practice strikers by refusing to reinstate them upon their application, we shall order Respondent to offer them immediate reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges, discharging if necessary any replacements. Respondent shall also be required to make Garcia whole for any loss of income he may have been occasioned as a result of the discrimination against him and make the strikers whole for any losses in wages they may have suffered as a result of the discrimination practiced against them since April 19, the day of their unconditional application for reinstatement. Backpay in the case of Garcia as well as the strikers shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. "Having found that Respondent violated Sec . 8(aX3) by refusing to reinstate the unfair labor practice strikers , we find it unnecessary to pass upon the applicability of the principles set forth in N.L.R.B. v. Fleetwood Trailer Co.. 389 U.S. 375; The Laidlaw Corporation, 171 NLRB No. 175. Having found that Respondent has refused to bargain in good faith with the Union , we shall order Respondent to cease and desist from such conduct. The violations of Section 8(a)(1), (3), and (5) found herein are of the type that strike at the very heart of the Act and warrant an order requiring Respondent to cease and desist from in any manner infringing upon the exercise of employee rights. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4): California Lingerie Inc., 129 NLRB 912, 915. 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. By implying to employees that the Union was responsible for their not receiving increased wages and benefits and by making to them promises of benefits to induce their withdrawal from the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily selecting Hector Garcia for discharge because of his activities on behalf of the Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (3) of the Act. 5. By refusing to bargain collectively in good faith with the Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(1) and (5) of the Act. 6. By refusing to reinstate unfair labor practice strikers upon their unconditional application for reinstatement, Respondent has engaged in an unfair labor practice within the meaning of Section 8(a)(l) and (3) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, Sweeney & Co., Inc., McAllen, Texas, its officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Interfering with, restraining, and coercing employees in the exercise of their Section 7 rights by telling them that they will receive greater benefits if they withdraw from the Union. (b) Discouraging membership in or activities on behalf of Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 173, or any other labor organization, by discriminatory selection of union supporters for discharge, or by terminating the employee status of unfair labor 214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practice strikers by denying them reinstatement upon their unconditional application to return to work, or by in any other manner discriminating against an employee in regard to his hire, tenure, or other terms and conditions of employment. (c) Refusing to bargain collectively in good faith with Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 173, as the exclusive bargaining representative of all its employees in the following appropriate unit: All employees, including warehousemen and helpers, truckdrivers and clerical employees employed at Respondent's facility at McAllen, Texas, but excluding all buyers, salesmen, guards, watchmen and supervisors as defined in the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 173, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act. (a) Upon request bargain collectively in good faith with the above-named Union as the exclusive bargaining representative of the employees in the heretofore described appropriate unit and embody any understanding reached in a signed contract. (b) Offer to Hector Garcia immediate and full reinstatement to his former or substantially equivalent position without prejudice to his seniority or other rights and privileges and make him whole for any loss of earnings he may have suffered as a result of the discrimination practiced against him in the manner set forth in the section of this Decision entitled "The Remedy." (c) Offer to strikers (listed in Appendix B to this Decision) who participated in the strike commencing on February 11, 1968, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." (d) Notify the above employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (e) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary in determining the amount due as backpay. (f) Post at its McAllen, Texas, warehouse, copies of the attached notice marked "Appendix A." ' ' Copies of said notice, on forms provided by the Regional Director for Region 23, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 23, in writing, within 10 days from the date of this Decision and Order, what steps Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES This Notice is Posted by Order of the National Labor Relations Board After a trial at which all sides .had the chance to give evidence, the National Labor Relations Board found that we, Sweeney & Co., Inc., violated the National Labor Relations Act, as amended, and ordered us to post this notice and to keep our word about what we say in this notice. The law gives you the right To form, join, or help unions; To choose a union to represent you in bargaining with us; To act together for your common interest or protection; and To refuse to participate in any or all of these things. The Board has ordered us to promise you that: WE WILL NOT interfere with your rights. WE WILL NOT tell you that Local 173, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO is responsible for your not receiving increased wages and benefits. WE WILL NOT promise benefits to get you to withdraw from Local 173, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. WE WILL NOT fire you because of your activities on behalf of Local 173, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO. WE WILL NOT refuse to bargain in good faith with Local 173, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, upon its request. WE WILL NOT refuse to let you return to work because you engage in a strike protesting unfair labor practices. The National Labor Relations Board found that we fired Hector Garcia because of his union activities and "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 Enforcing an Order." SWEENEY & CO. that we had not bargained in good faith with the Union and that as a result, the employees who took part in the strike on February Il, 1968, were unfair labor practice strikers. It also found that the strikers were entitled to have their jobs back in April, 1968 when the Union notified the Company the strikers were willing to return to work. Since the Company did not permit the strikers to return to their jobs, the National Labor Relations Board found this a violation of the National Labor Relations Act, as amended. WE WILL bargain in good faith with the Union. WE WILL offer to Hector Garcia reinstatement to a job similar to that he performed before he was discharged. WE WILL pay to Hector Garcia any wages he might have lost because of his discharge with 6 percent interest. WE WILL offer reinstatement to those employees who went on strike and who were not reinstated to their old jobs or similar ones, and pay them, with 6 percent interest for any wages they may have lost as a result of our refusal to reinstate them when they applied. WE WILL write a letter to any of the above-mentioned persons who are in the Armed Forces of the United States and tell them they can apply for jobs after they are discharged. Dated By SWEENEY & CO., INC. (Employer) (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. Any questions concerning this notice may be directed to the Board's Regional Office , 6617 Federal Office Building, 515 Rusk Avenue, Houston , Texas, Telephone 713-228-4296. APPENDIX B Adolfo Cantu Jose Castillo Rafael de la Garza Frank de Luna Julian de Luna Jorge Escobar Jose R. Flores Florentino Garza Higinio Garza Moises Garza Rafael Garza Rudolf Garza Frank Gonzalez Florentino Gonzalez Adan M. Gonzalez Raul Gonzalez Samuel G. Guajardo Armando Islas Fidel Martinez Juan Mata Jose J. Menchaca Martin Mendez Alberto A. Morales Nicasio Olvera Raul Reyes Sam Reyes Zacarias Rocha Fidel Salinas Frederico Zuniga Adan Morales TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE PHIL SAUNDERS , Trial Examiner: The complaint in Case 23-CA-2914 is founded upon a charge filed by Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, Local 173, hereinafter called the Union , on December 21, 1967, and the complaint was 215 originally issued on February 5, 1968, and amended on April 12, 1968. This amended complaint alleges that Sweeney & Co., Inc., herein the Company or Respondent, violated Section 8(a)(1), (3), and (5) of the Act. On September 13, 1968, pursuant to an additional charge by the Union, the General Counsel issued a complaint in Case 23-CA-3079 against the Respondent alleging further 8(a)(1) and (3) violations - coupled with a motion for consolidation with Case 23-CA-2914. Hearings were held before me in Edinburg, Texas, on various dates in April, May, and in October, 1968, and all parties were represented by counsel and participated fully at the hearings. Oral arguments were waived, but briefs were filed and the same have been given due consideration. Upon the entire record in this case and my observation of the witnesses, I make the following. FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent is now and has been at all times material herein, a Texas corporation, having its principal office, warehouse and place of business at San Antonio , Texas, with additional warehouse facilities at Laredo and McAllen, Texas, where it is engaged in the business of selling groceries, foodstuffs, drugs, sundries, and other related material at wholesale. The McAllen warehouse is the only facility involved in this proceeding . Respondent, in the course and conduct of its business operations during the past 12-month period, which period is representative of all times material herein , purchased goods valued in excess of $50,000 from points outside the State of Texas which were shipped directly from such points to its McAllen, Texas, warehouse. The complaint alleges, the answer admits, and I find that the Respondent is an employer engaged in commerce within the meaning of the -Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is now, and has been at all times material herein, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES It is alleged that the Company violated the Act by various statements and conduct on the part of their supervisors involving the soliciting of employees to withdraw their support from the Union, threatening employees with loss of certain economic benefits, promising wage increases , improved vacations, and other benefits if employees would cease their support for the Union, and illegal interrogation of employees concerning their union activities. It is also alleged the Company discharged Hector Garcia on December 16, 1967, because of his activity for the Union, and that the Company engaged in bad faith bargaining by refusing to make the Union a proposal on wages and union security provisions (checkoffs), by unilaterally and without notification closing its home center operations at its McAllen warehouse, and thereby terminating the employment of Hector Garcia. It is further alleged that a strike, which commenced February 11, 1968, was caused by and/or was prolonged by the unfair labor practices of Respondent, and on or about April 19, 1968, 29 employees who had engaged in the strike made an unconditional offer to 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to work in their former or substantially equivalent positions of employment , and that since on or about April 19, 1968 , Respondent had failed and refused to reinstate such employees . It is alleged that on April 24, 1968, Respondent had refused to reemploy Adan C. Morales who had also engaged in the strike and had made an unconditional offer of reinstatement.' It is also alleged that said refusal to reinstate the employees was because these employees had joined or assisted the Union or engaged in union or concerted activity, and was therefore, a violation of Section 8(a)(3) of the Act. The subsequent complaint in Case 23-CA-3079, alleges that on or about April 18 , 1968, the Company had job openings available which had been performed by the strikers, but advertised for and hired new employees , and that the Company failed and refused to reinstate the strikers who had made an unconditional offer to return to work. Respondent is a wholesale grocery supplier, and for purposes here supplying some 45 grocery stores in and around McAllen , Texas, and in the Lower Rior Grande Valley. The grocery stores served by the Company range in size from fairly large supermarkets down to very small stores. The Company has mainly three principles departments in its McAllen warehouse installation - I.B.M., grocery, and produce . The I.B. M. department has four employees,. and their main responsibility is inventory control of merchandise in the warehouse and customer orders and billing . It appears from this record that the grocery and produce departments are two separate operations. The produce department supplies stores with fruits and vegetables. Donicio Villarreal is the manager of this department, and there are approximately eight employees under his direct supervision . The working hours of this department are from 12 to 1 p.m . until 8 p.m. or 9 p.m., depending upon the workload on Sunday, Monday, Wednesday, and Friday ; and from 7 a.m. until 4 p.m. or 5 p.m., depending upon the workload, on Tuesday and Thursday; and, on Saturday , from about 4 a.m. to 12 noon. The grocery department has from 20 to 25 employees working in two shifts since March 1966, when the night shift was added. The home center department , within the grocery operations , carried such items as kitchen utensils, towels, blankets, and similar type items . In this department there was also a cigarette stamping department which handled customer needs for cigarettes and performed the required stamping of tax decals on each package . As pointed out the employees in the grocery department consist of order pullers, who take customer orders and pull them from inventory and prepare for shipment ; checkers and shipping clerks, who do order pulling also but , in addition , check the orders pulled to see if they are correct and load the merchandise on delivery vehicles ; unloaders who unload box cars and trucks with incoming merchandise and receiving clerks to check the invoices ; and warehouse employees (and forklift and jeep or towmotor operators), who place the merchandise into inventory at locations designated by code number by the I.B.M. department ., There are also billing clerks, who coordinate customer orders and billings . The day shift in the grocery department is comprised of from 10 to 11 employees , who begin work at 7 a.m. and work until 5 p.m., except on Friday, when they work until 4 p.m. The night shift, comprised of approximately from 10 to 11 employees , begins work at 'All employees participating in the February strike are listed in Appendix A, [Omitted from publication.] 2:30 p.m. and works until 12 midnight, or sometimes to 1 or 2 a.m., depending upon the workload, on Monday through Thursday. On Sunday, the night crew begins at 8 p.m. and works until approximately 6 a.m., or as late as 9 a.m., depending upon the workload. In the spring of 1966, the Industrial Union Department of the AFL-CIO, on behalf of the Union, commenced an organizing drive among Respondent's employees at its McAllen warehouse. In June 1966, the Union filed a Petition for Certification seeking to represent these employees, and in July 1966, a Teamsters Local moved to intervene. A hearing was held in the Representation matter on July 19, 1966, and on August 16, 1966, the Board's Regional Director issued his Decision and Direction of Election, in which he found as an appropriate unit the following: "All employees, including warehousemen and helpers, truckdrivers, and clerical employees, employed at the employer's facility at McAllen, Texas, excluding all buyers, salesmen, guards, watchmen and supervisors, as defined in the Act." An election was then ordered and held on September 14, 1966, and a majority of the votes were cast for the Union. On September 26, 1966, the Union was certified as the collective bargaining agent for the employees in the above-described unit. The Respondent and Union commenced negotiations on January 10, 1967, and, subsequently, held meetings in 1967 on February 6, March 1-2, April 4-5, July 11-12, August 3, October 13, November 1 and 16, December 13, and on April 19, 1968. The parties stipulated in the record as to the dates of the negotiations meetings, the beginning and ending times of each meeting and those who were present. The initial issue in this case bears on whether or not Ernest Hodges and Donald Bennett are supervisors or agents within the meaning of the Act.' Hodges has worked for the Company for approximately 7 years, and was employed as a shipping clerk. He worked the day shift until March of 1966, when the night shift was set up in the grocery department. Hodges testified that his duties as a shipping clerk on the night shift include the taking of orders from I.B.M. and laying them out for the order-pullers, that he marks the door at which they are to be loaded depending on the size trailer needed, and that he spends "most" of his time checking the orders out to make certain they are correct. Hodges states that he seldom has to ask anyone on the night shift (from 8 to 10 employees) to pull orders because it is largely routine work and each employee is familiar with his job. Hodges testified there have been occasions where night shift employees in the grocery department would ask for time off, and if the reason was sickness or "something like 'The only statements in the Representation Case concerning this matter - was testimony by the Respondent 's McAllen warehouse manager, Warren Miller, to the effect that neither Hodges nor Bennett had the authority to hire or fire or to effectively recommend such action . Little or no other testimony concerning the duties or authority of either man was adduced by any party . The Regional Director, in his Decision of Election, made no specific finding as to their supervisory status and did not mention either man by name. Neither man's vote was challenged at the Board-conducted election , and wherein the Union was certified to represent Respondent's employees . The undersigned is not bound by the conclusory statements of Manager Miller in the representation proceeding , wherein no effort was made by the Union to litigate such employees' supervisory status, and may make an independent determination of the supervisory authority of Hodges and Bennett based on the evidence as presented in the proceeding before me. See Standard Products Company, 159 NLRB 159, 162. See also Leonard Neiderriter Company, Inc., 130 NLRB 113, 115, Southern Airways, 124 NLRB 749, 750. SWEENEY & CO. that" he would let him go "automatically," and if time-off was requested for other good reasons he would generally let the man off and consult with Plant Manager Miller about it or call Miller . He also related in his testimony, that the employees do not require any indication from him as to the time to leave at the end of the work shift, and they do not inquire whether they can leave. Hodges testified he has no authority to hire or fire employees nor to recommend any such actions, and his authority to discipline employees merely extends to talking to them, and if no mutual agreement is reached they will then see Plant Manager Miller about it. Hodges admitted he has "moved employees around" when work in the drug department is caught up and extra help was needed elsewhere in the warehouse, and on occasions he has also informed employees that there is additional work to be done before leaving . Rudy Garza testified he received permission from Hodges to leave work on numerous occasions, however, Hodges testified that when this occurred , Garza always told him that Miller had given him permission to be off work . Garza also testified concerning an incident which occurred the latter part of 1966 when Hodges had asked him to move some charcoal from a location in the warehouse . Garza testified he told Hodges he was not going to move the charcoal as Homer Isenberg had previously instructed him to place them on the north side.' Both Hodges and Garza became quite excited and annoyed over this incident , and Hodges then informed Garza he was fired , but Garza replied that Hodges could not fire him because he had been hired by Isenberg . Garza testified that Isenberg then came upon the scene and told Garza that Hodges had the authority to fire him but also informed him that Hodges would not "bother" him any more . Hodges stated that he did get a little angry and he did tell Garza he was fired but, ". . . I was a little angry and I didn 't have the right to say that, and I went to see Mr. Isenberg about it a little later, and he took care of it from there." It appears that Garza continued to work up until the strike in February of 1968. Hector Garcia stated that in late 1965 or early 1966, Hodges told him he was needed downstairs in the warehouse to help on various jobs, and Garcia informed Hodges he had to take care of the home center department first . Plant Manager Miller then walked by and Hodges told Miller , "Hector is getting pretty smart with me." According to Garcia, Hodges then informed him that if he did not like the way he was running the warehouse "why don't you clock out and go home." Garcia also testified that Miller then states , "Well, he is your boss, he can tell you what to do, Hector." Garcia further related that he considered Hodges his supervisor on the night shift, that Hodges instructed the employees what to do and shifted employees from one job to another. The credited evidence clearly shows that Hodges devoted practically his entire time on the night shift in checking the orders to see if what has been pulled was the correct order . As pointed out, in cases where a particular order is not picked up off the desk , he will ask another order puller to pull it, however, this seldom occurs for, as Hodges testified , "It's more or less routine work and everyone knows their job and they go ahead and do it." 'Up until January 1967, Homer Isenberg was Respondent 's general manager at their warehouse in McAllen , but since then Isenberg has been in a semiretired capacity and only fills in when Miller is absent, and at times makes some outside sales along with buying products for the frozen food department. 217 Hodges further testified that he merely "asked" employees to do things and did not tell them , and emphasized that other employees would also ask the help of others in pulling the various orders . It was only on rare occasions when Hodges had to tell anyone what to do. While Miller is not present at the warehouse during all of the night shift (after 5 p .m. till midnight), he, nevertheless, would be contacted by telephone if anything out of the ordinary arose. It is admitted that Hodges let people off for sickness, but this is a routine policy involving no independent discretion, but for most other reasons he would contact Miller if he was still at the warehouse, and if he was not there would call or discuss it with Miller. There is no credited testimony that Hodges has any general or overriding authority to let employees off from work and only very rarely will he excuse an employee, and then only under routine circumstances or where Miller has already given his permission. The only purported supervisory authority exercised by Hodges occurred on two occasions involving Garza and Garcia, as previously noted herein . Both instances adequately show that Hodges had no authority to hire or fire employees, or effectively recommend such action. With tempers flying , Hodges informed Garza that he was fired . Isenberg then stated that Hodges had such authority, but then immediately informed Garza that Hodges would not "bother" hurt any more . It appears to me that this incident was a most obvious example to employees that Hodges actually had no authority real or otherwise, to fire anyone, and furthermore, no power to effectuate such a recommendation as, in the final analysis, Hodges' outburst was directly and quickly refuted by Isenberg on the spot, and Garza continued to work. It is clear to me that Hodges was never vested with any power to discharge or to effectively recommend the same. The other situation involving Hector Garcia happened so long ago it is difficult to ascertain its exact valuation and apparently happened prior to the establishment of the night shift . However, it is noted that the incident occurred in the presence of Plant Manager Miller and, in the final analysis, Garcia was merely told that if he did not like the way things were running he could go home . As a straw boss, leadman, or acting as a group leader - Hodges was attempting to exercise some immediate control in getting other work done, and it appears to me that Miller's reply and on the spot backing of Hodges, was necessarily in accordance with such endeavors in efforts to maintain some semblence of work schedule in the warehouse. What is overriding, however, is the fact that this incident again shows that Hodges did not have the authority to effectively recommend discharge . Hector Garcia continued to work in the warehouse until the home center department was discontinued in late 1967, as detailed hereinafter.' 'Hodges was originally hired on a weekly salary basis; however, beginning in January of 1966, he was placed on an hourly rate because of wage and hour purposes. Leland Harris, comptroller of the Company, testified that the Respondent had encountered experiences with several wage and hour audits and the types of employees subject to overtime His duties included periodic examination of the payroll, and during such an examination of the payroll in late 1965, Harris noticed that Hodges was in the warehouse as a nonsupervisory employee, and it was directed that Hodges be changed to an hourly rate. He stated that shipping clerks in Respondent's warehouses in Laredo and San Antonio are also paid only on an hourly rate It appears that Hodges is entitled to 2 weeks' vacation, whereas other employees receive l week. The reason for this is that the Respondent's practice has been, and was when Hodges was hired, to give 2 weeks' vacation to salaried personnel. Since Hodges was hired on this 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Donald Bennett started working for the Respondent in August 1965, and his initial duties were to call on customers or accounts in the McAllen trade area. In February 1966, Bennett was transferred into the McAllen warehouse as the day shipping clerk. As to the duties he assumed in the warehouse, Bennett testified as follows: "I was more or less in charge of, I say in charge, of trying to get trucks out every morning that were loaded, get the frozen foods on them, see that the cheese and frozen food was put on them, and to take care of pulling orders during the day, and checking in merchandise that was returned." Bennett was then asked about the authority in his job, and he replied, "Well, by authority, I wasn't given any authority as for as telling anybody really what to do. I did have a couple of men that helped me out on pulling orders and different things, and I could ask them all the time. They knew what they were supposed to do, and it was just a matter of uniform work that had to be done." Bennett stated that he spent three-quarters of his time pulling orders, checking returns, and checking out merchandise, and the remainder of his time was spent checking and assigning new locations for merchandise,' would also help "hunt" merchandise, and did some minor maintenance and repair work. As indicated by Bennett's testimony, he has different employees helping him in various aspects of his job. One employee helped him on returns, a couple other employees helped in pulling orders, and another employee would pull all home center items, and other drugs, frozen food, cheese, and other types of merchandise. Bennett testified that in his duties as shipping clerk in the warehouse he never was given authority to hire or fire, and never recommended that anyone be employed or discharged. He further related that when employees asked for time off he told them to check with Manager Miller, and had no authority to grant a time off request. Bennett also testified he did not route the delivery trucks, and the drivers had a regular schedule to follow and which was posted in the warehouse. There was testimony by employee Jose Flores that Bennett directed him to change his truck route on a few occasions. Bennett testified that Miller had told him to make a change in the delivery, and he merely relayed this message to Flores. Miller substantiated the testimony of Bennett, and denied ever telling Flores that he had to change deliveries because of instructions from Bennett. Hector Garcia testified that when he was not busy in the home center department, Bennett assigned him to various other jobs in the warehouse, and stated that Bennett and Miller told him where to work, and also related that Bennett assigned other employees to different duties. Garcia admitted that he never knew Bennett to hire or fire anyone.6 basis, he received this amount of vacation and, when changed to an hourly rate, this benefit was not reduced under company policies Hodges' hourly rate in December 1967 was 20 cents above the next highest pad employee outside of other clerks. However, as also pointed out, he has been with the Respondent longer than some employees on the crew and has additional duties requiring more knowledge and skill than other employees on the night crew . All employees on the night crew in the grocery department receive a 20-cent-per-hour premium pay. It appears that Hodges' duties as shipping clerk have not changed since the election in September 1966, and, as aforestated. he and Bennett voted unchallenged in that election following a Representation hearing. 'It appears that most or all location assignment in the warehouse is done by the I.B.M. department , and Bennett's only job is to make a visual inspection to see whether numbered locations are cleared. 'This record shows that Bennett was initially hired on a weekly salary basis: but after being transferred to the warehouse his pay was changed to any hourly basis. This was done when it was noted he was no longer a field The contention by the General Counsel, in summation of this phase of the case, is as follows: Both Hodges and Bennett receive rates of pay substantially in excess of all of the other employees working on their shift - in Hodges' case, 45 cents per hour and Bennett's case, 70 cents per hour. Unlike all of the other employees who receive only one week's vacation, both Bennett and Hodges are entitled to a two-week vacation which is the same entitlement as the acknowledged supervisors. Both men responsibly direct the employees working under them, including the use of independent judgment in moving employees from job to job on a regular and recurring basis. In addition, Respondent' s managers have informed employees that both Hodges and Bennett were supervisors and had authority to discharge employees who failed to comply with their instructions. The mere fact that there is no evidence that such authority was actually executed does not diminish the existence of the supervisory authority. Section 2(l1) of the Act defines a supervisor as: any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign , reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances , or effectively to recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment. [Emphasis supplied.] Where the evidence fails to show, as here, that a purported supervisor possesses one or more of the necessary statutory requisites, such a person cannot be classified as a supervisor within the meaning of the statutory definition.' man but was in the warehouse and because of wage and hour requirements, the Respondent changed him to an hourly basis with overtime, as it had done with Hodges, as aforementioned . As pointed out the Respondent's policy is that all weekly paid employees are entitled to 2 weeks' vacation and that when for some reason they are changed to an hourly rate their benefits are not reduced . In this respect Bennett testified, as far as he knew, he was only entitled to 2 weeks . Bennett was never actually taken 2 weeks or was unaware that he would be so entitled . G. C. Exh 11(b) dated May 1, 1966, has a notation describing Bennett 's classification as "Buyer and Supr." This exhibit is a payroll change notice signed by Homer Isenberg . Isenberg testified that "Buyer and Supr" indicated a retail supervisor whose duties were to call on retail stores and work with them on advertising and any other help that they might need in the retail operation. The only supervision duties were with the Respondent's customers and had nothing to do with Respondent 's employees 'The Senate in reporting its amendment to include a definition of a supervisor clearly showed its intention to be the drawing of a line between supervisors that are truly management and minor supervisors having no such connections. S. Rep . No. 105 on S. 1126, said. In drawing an amendment to meet this situation , the committee has not been unmindful of the fact that certain employees with minor supervisory duties have problems which may justify their inclusions in the act. It has therefore distinguished between strawbosses, leadmen, set-up men, and other minor supervisory employees on the one hand, and the supervisor vested with genuine management prerogatives as the right to hire or fire, discipline, or make EFFECTIVE recommendations with respect to such action. In other words the committee has adopted the test which the Board itself has made in numerous cases when it had permitted certain categories of supervisory employees to be included in the same bargaining unit with the rank and file . Bethlehem Steel Co., 65 NLRB 284 (expeditors); Pittsburgh Meter Co., 61 NLRB 880 (group leaders with authority to give instructions and to lay out the work), Richard Chemical Works, 65 NLRB 14 (supervisors who are mere conduits for transmitting orders ), Endicott Johnson Co.. 67 NLRB 1342, 1347 (persons having title of foreman and assistant foreman but with no authority other than to keep production moving) . . . ."[Emphasis SWEENEY & CO. 219 It has been consistently and repeatedly held, in cases dealing with determination of supervisors, that it was of absolute necessity that the record clearly show that one or more types of authority set forth in the Act be present in order to prove that a person possessed a supervisory position. It is likewise has been consistently held that the intention of an employer to confer supervisory authority upon an employee is insufficient absent a clear announcement by him to said employees of such authority.' The foregoing considerations and the record as a whole establishes that while Hodges and Bennett directed and assigned other employees in the warehouse, such discretion must be regarded as performance of routine functions which do not require the exercise of independent judgment. Furthermore, even though a few employees were occasionally granted time off when Miller was not available - they acted within a very limited scope due to illness or other obvious reasons of necessity, and it is well established that the sporadic exercise of such limited authority does not show they are supervisors. Cosby-Hodges Milling Company, 170 NLRB No. 50. As pointed out by the Respondent, Cosby-Hodges concerned shipping clerks, checkers, and shipping trucks and loading foremen who, in instances, performed and possessed more supervisory indicia than Bennett and Hodges, and the Board found them to be leadmen . In UTD Corporation (Union-Card Division), 165 NLRB No. 48, the leadman, held by the Board to be nonsupervisory distributed and checked out the quality of work of other employees, instructed new employees, set up machinery, did production work, and if an employee's work was not up to standard the leadman would call this to the employee's attention and submit a report on it. These leadmen, among other things, passed out checks and computed rates of pay for incentive work. The Board in UTD noted that during the night shift there is on hand a night supervisor, but the leadmen are given detailed instructions by the day shift foreman . From the above the Respondent points out we have a somewhat parallel situation in the instant case, due to the fact that during the period of time the employees work at Respondent's warehouse when Miller is not present , but is easily accessible by telephone, places quite similar circumstances as having a supervisor present while employees do clearly routine work. It is also noted that the leadman in UTD made from 20 cents to 25 cents more than other employees. In Corey Brothers, Inc., 162 NLRB 770, 115, the Board was confronted with a similar warehouse operation as is present in the instant case. One employee involved was a shipping clerk (Biazi) whose duties were very similar to those in the instant case . The Board held that Biazi was not a supervisor as he only gave routine supplied.] See also N.L.R.B. v. Budd Mfg. Co., 169 F.2d 571 (C.A. 6k E. B. Law and Son. 92 NLRB 826 Crown Corrugated Container, Inc., 123 NLRB 318. 'For example Sioux City Brewing Company. 86 NLRB 1164, where it was held that an employee without authority to hire, discharge, or otherwise affect the status of other employees of his employer was not a supervisor; Calument and Hecla Consolidated Copper Co, 86 NLRB 126, where it was held that group leaders without the statutory requisites were not supervisors; and Warren Petroleum Corp.. 97 NLRB 1458, where it was held that gang foremen who do not possess or exercise the power of effective recommendation or responsible direction over a crew were not supervisors. See, for example, Continental Oil Company, 95 NLRB 358; George Knight and Co., 93 NLRB 1193; United States Gypsum Company. 91 NLRB 404. instructions in the warehouse and was not held responsible for the overall functioning of the warehouse in the sense he was not concerned with seeing that enough employees were present, that shipments arrived or that the inventory be kept at a given level, and that the directions he gave to employees were ". . . usually dictated by events over which he has no control." As to the second employee (Bardwell ), the Board notes in footnote 14 of its decision, a situation like that which Hodges had with Rudy Garza where, in a heated conversation , the employee was told to "go home"; however, this decision was overruled as in the instant case, and the Board noted ". . We do not view this incident as establishing authority in Bardwell to discipline; if anything, it suggests the opposite." The intention of the parties is also significant . Insofar as the Respondent is concerned , it has always considered Bennett and Hodges as nonsupervisory, as well as the other clerical employees. The credited testimony in this record discloses that Hodges and Bennett were never authorized by the Company to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline employees or to responsibly direct them, or to adjust their grievances or effectively recommend such action ; that they devoted their time mainly to checking and pulling orders or merchandise , and whatever requests they made to coworkers were of a mere routine nature which required the exercise of no independent judgment or discretion in the performance of their duties sufficient to warrant a finding that they responsibly directed the work of other employees. Upon the entire record in this case, I find that at no time during their employment with Respondent were Hodges and Bennett supervisors within the meaning of the Act. The General Counsel, in these complaints, alleged that Hodges and Bennett, in addition to being supervisors of Respondent, were its agents as well. The only testimony bearing on agency is a meeting or conference in December 1967, at which Bennett and Slim Garza talked with Respondent's attorney, Scott Toothaker, and wherein they sought his advice regarding the Union. Attorney Toothaker advised them he could not assist or give any advice on this because of his employment with the Company and they would have to seek assistance elsewhere . As pointed out the testimony of both Hodges and Bennett reveals that any contact they made with employees, or any actions they took, were purely a personal and independent action on their part, and there is no evidence that Respondent knew of these matters except for the conversation Bennett had with Toothaker and there is no evidence this information was transmitted to Respondent. The evidence fails to show that any of their activities were done under the authority, either actual or apparent, conferred upon them by the Respondent, whether in advance or by subsequent ratification. See Lexington Chair Co., 150 NLRB No. 1328; General Tire and Rubber Co., 149 NLRB 474; Aero Corp., 149 NLRB 1283; Electric Motors & Specialties, Inc., 149 NLRB 1432; and Superior Tool & Die Co., 132 NLRB 1373. In accordance with my findings and discussions above, I do not hold the Respondent responsible for any acts or statements of Hodges and Bennett. Donicio Villerreal is in charge of the produce department within the McAllen warehouse, and admittedly a supervisor under the Act. Employee Armando Islas testified that in early February, 1968, Villerreal told him that Homer Isenberg had made a mistake in not giving the men in the produce department 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the night premium pay, and the Respondent's employees in San Antonio were already getting 2 weeks ' vacation, while those in the McAllen warehouse were only getting 1 week, and Villerreal went on to say that he would try to get Islas 2 weeks' vacation, better insurance, and the night premium , if he voted the Union out. Villerreal admitted to the conversation with Islas, and that he had told him the employees in San Antonio and Laredo were receiving 2 weeks' vacation and had gotten a credit union and other benefits such as a better insurance policy , and that the men in McAllen would get the same once matters got straightened out. He further admitted telling Islas that Isenberg told him that he had made a mistake in not giving the night crew in the produce department the same night premium that had been given to the employees in the grocery department . Villerreal denied saying anything about the men voting the Union out, but admitted stating as long as the Union negotiations were going on their hands were tied and nothing could be done about it but once the matters got straightened out in McAllen, they would be able to do the same thing that had been done in San Antonio and Laredo. Sam Guajardo testified that in February 1968, Villerreal also spoke to him about the Union, and informed Guajardo that he had talked to Miller about getting the produce department a 20-cent night premium pay, but that Miller had answered saying he could do nothing as his hands were tied because of the negotiations, and when they were back to the way they were before maybe then the produce department would receive the 20-cent night premium pay . Villerreal stated he informed Guajardo that he had seen a letter the Company had received from the Union , wherein the Union had not accepted the 20-cent increase . He further told Guajardo that since the Union had rejected the 20-cent increase there was nothing the Company could do about it. Villerreal's statements to Islas about increases in benefits which had been granted in San Antonio and Laredo where no union represented Respondent's employees, and then contrasting it with the situation in McAllen where no increase in benefits had been yet made, and relating this to the presence of the Union as the bargaining representative, clearly is designed to hinder the effectiveness of the Union, and indicating the desired benefits would be obtained when the employees ceased their union activities. The above must be deemed a solicitation of an employee to cease his activity for the Union and with the promise that in return employees would receive increased wages and other benefits . This is violative of Section 8(aXl) and I so find. The General Counsel argues that the statement involving Villerreal and Guajardo is another instance of attempting to dissuade employees from supporting the Union by offering a promise of a significant increase in their wages if the Union was dropped . I am not in accord with this contention, and find otherwise . Even accepting Guajardo's testimony as to what transpired on this occasion - it still falls short of an illegal interference by the Company . In essence, Villerreal merely informed Guajardo that the Company could not consider the question of premium pay in the produce department while the Respondent and Union were still mutually engaged in negotiations.' 'For background purposes the General Counsel introduced statements and documents to show that the Company was firmly opposed to the Union from the beginning and to show that such opposition was a recurring theme through the preelection period . G. C Exhs. 2, 4. 6, and 8. General Counsel alleges that Respondent violated Section 8(a)(3) and (1) of the Act by terminating the operation of its home center department on or about December 1, 1967, and by terminating the employment of Hector Garcia on December 16, 1967, who was mainly employed in the home center department.10 The Respondent argues that the Company had valied economic considerations for closing the home center department, and since Hector Garcia was the employee in charge of the home center spending almost all of his time there, and with the closing of the department he no longer had a job and was accordingly terminated. Hector Garcia started working for the Company at its McAllen warehouse in August 1959. Between 1959 and 1963 his main job was placing state tax stamp on packages of cigarettes, and he also worked all over the warehouse handling various types of jobs . In 1963, Respondent installed a cigarette stamping machine which applied a decal tax stamp to the cigarette packages and resulted in a substantial reduction in the amount of time that it took to stamp the cigarettes . At that time, in addition to his job of stamping cigarettes , Garcia was given the additional responsibility of taking care of the home center department, and he also was told that upon finishing work in home center he was to assist the other men in pulling grocery orders and unloading railroad cars. It appears that between 1963 and 1967 , in addition to stamping cigarettes and taking care of the home center department, Garcia worked at virtually every job in the warehouse . Garcia also operated various pieces of equipment in the warehouse including the forklift for stacking incoming merchandise and the towmotor which was used in filling orders. After the Union began organizing at the Company , Garcia took a very active part, and he was the observer for the Union at the election conducted on September 14, 1966 , and following the election Garcia was also one of the employee members of the union negotiating teams which conducted the bargaining negotiations with Respondent, and which started in January 1967 , as aforestated. Garcia testified that in 1967 he was classified as an order puller and was paid at the rate of $1.40 per hour, which was the same rate as all of the other order pullers, and there were approximately 10 or 12 other order pullers working for the Company in its McAllen warehouse. He stated that all during 1967 his duties remained the same, that he was working a 52-hour week , that during the week he would spend about 7 hours operating the cigarette stamping machine, and his duties in the home center department would take approximately 2 to 2 1 /2 days, running about 18 to 20 hours scattered throughout the week . Although Garcia was the only man on the day shift handling the home center operation , two employees working on the night shift , Jorge Escobar and Fidel Martinez, also spent some of their time pulling orders in the home center department. Since this activity occurred , prior to the 10(b) period , no contention is raised that such action be found to constitute an unfair labor practice, but is submitted in an attempt to show Respondent's subsequent actions in the 10(b) period and to disclose the degree of illegal activity followed by Respondent since the initiation of the organizing attempt on behalf of the Union. In these respects, I have fully considered the same in arriving at my findings and conclusions herein. "It is further alleged the Respondent terminated the operation of the home center department and the employment of Hector Garcia without having notified or consulted with the Union - violative of 8(aX5) of Ike Act. SWEENEY & CO. During his period of employment he was never discharged , suspended , laid off or given a written warning about the way he was performing his work , and he never received any complaint about the way he did his work. Garcia testified that on one occasion Miller complimented him on obtaining a new customer for the Respondent. This record discloses that sometime prior to October 1967, a decision was made by the Company to close the home center department in the McAllen warehouse, and Miller received a letter from Respondent's president, dated October 16, 1967,11 advising him to arrange to deplete the home center merchandise and have customers place their orders from the San Antonio warehouse. The letter sets out the basic business reasons and consideration for making this change, and it also related to the discontinuance of the cigarette stamping operation in the McAllen warehouse . Miller then began making arrangement to close the home center , and in late November or early December , 1967, the merchandise in the home center department at the McAllen warehouse was gradually sent back to San Antonio and, of course, Garcia was well aware of these events as he handled the packing and other related works in connection with the move . By letter dated November 30, 1967 , the Company notified the Union it would discontinue the home center and cigarette departments at McAllen, and that such action might result at the permanent reduction of one or two employees.' _ Miller testified that Respondent did not believe it was doing a good job servicing its customers with home center items, for there were only about 1,500 items in the home center department in McAllen , whereas San Antonio carried a much larger supply in their home center department, and at times customers would have to make separate orders from San Antonio and from McAllen. He stated the San Antonio warehouse had a separate order form which made it easier for customers to order from, while the McAllen catalogue had its 1 , 500 items mixed in with its other items making it difficult for the customers to make their orders and this resulted in customers receiving some shipments from McAllen and other shipments directly from San Antonio , and the double inventory was also costly . Miller further testified that another consideration which prompted discussion to close the department was that in the spring and summer of 1967, Respondent lost the business of three of its large home center customers, and the three of four replacement customers of stores had much smaller operations or demands for home center merchandise . Miller also stated that both the McAllen home center department and the Laredo home center department were closed in December 1967. On December 16, 1967, Garcia was called into Miller's office, and was then informed that due to the closedown of the home center department, the Company felt that they no longer needed him . Garcia was given two checks - one for the balance of the week then due him and the other for 2 weeks pay in lieu of any notice of discharge. Miller stated that the discharge did not have anything to do with the Union , and Garcia said that it did as he could do any kind of job in the warehouse. Manager Miller testified that Garcia spent from 70 to 75 percent of his time in the home center department, that at the time of discharge he did not have a job opening for Garcia, and between December 16, 1967, and February "G. C. Exh. 13. "G C. Exh. 14. 221 10, 1968, he did not hire any employee for warehouse work. On September 28, 1966 , the Union requested the Company to bargain with it and on October 12, 1966, Respondent, through its then attorney, Theo . F. Weiss, submitted some of the information which had been requested by the Union's telegram concerning the commencement of bargaining . On December 6, 1966, Toothaker notified the Union that he would handle the negotiations, and it was ultimately agreed bargaining would commence on January 10, 1967 . The main people negotiating for the Union were Franklin Garcia, and Harold Shapiro - International Representative for the Union." Bennie Campos, Hector, Garcia, and Sam Guajardo were also present for the Union at most of the negotiating meetings . Representing the Company were Attorney Toothaker and Jarvis along with Plant Manager Miller. At the first negotiating meeting on January 10, 1967, the parties started out by making opening statements. 14 The Respondent offered the offices, of Attorney Toothaker as a place to meet, and indicated that although its negotiating team had the authority to negotiate, any final contract would have to be ultimately approved by the Board of Directors and that all agreements were tentative until the entire contract was resolved . The Union responded that all agreements were also tentative and final agreement would have to be approved by its membership. The Company stated they were opposed to a contract being retroactive to the date of certification , and stated the Respondent was also opposed to a maintenance of standards clause on the basis that the collection of dues was union business . The Union asked that the Company submit a counterproposal on this subject matter. The parties then discussed the various clauses contained in the Union's original proposal , but all agreed to hold economic items until the latter part of the negotiations. The Company informed the Union that its proposal concerning grievance procedure was too involved because of the size of the unit and the Union agreed to submit another proposal on this item . Relative to arbitration, the Company stated it would like to have a clause whereby the selection of the arbitrator could be by some other method than through the Federal Mediation and Conciliation Service or the American Arbitration Association , and suggested the possibility of using retired judges as arbitrators . After a discussion on the hours of work proposal, the Union thought its proposal was not adequate and stated it would resubmit different language, and in discussing the discharge and suspension article, the Respondent stated that such matters could be inserted in the work rules and not in the contract . The Company then informed the Union that they hoped to negotiate a contract without a seniority clause. At this initial meeting the parties also mentioned or discussed leave of absence - jury duty, funeral, and pregnancy leave, 16 vacations, laundry and tools, bulletin boards, union visitation, separability, management rights - the Company wanted a more detailed clause, strikes and lockouts, and health and welfare provisions. This first session can be classified "Shapiro replaced Franklin Garcia on the Union's bargaining team on October 13, 1967 "By this time the Union had submitted its original proposal - G. C. Exh. 30. "The Respondent advised the Union that the Company's policy was to pay full time for employees who were off on jury duty, and its policy was to allow time off without pay for the attendance at funerals. 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as a meeting for general discussions, questions and answers from both sides, a session where information was sought and given, and various clarifications were also ascertained in order to make substitute proposals, and no definite contract agreements, as such, were reached.16 At the next meeting on February 6, 1967, the parties discussed Respondent's letter of January 26. Respondent informed the Union that the increase had been put into effect, and the Union stated that it had no objection to it. The Company then submitted its counter-proposals on preamble, intent and purpose, union visitation, management rights and strikes and lockout - General Counsel's Exhibit 32, and a discussion followed on these subject matters. The Union again insisted on a maintenance of standard clause and the Union objected to the Respondent's proposal on union visitation. The Respondent wished to include the Union as certified in the agreement clause , but the Union only wished to include the local union. The Union inquired about the status of two or three employees and wanted to know how they were classified. No contract agreements were reached in this meeting. On March 1 and 2, 1967, the parties held the next negotiating sessions, and considerable time was spent in discussion on various employee classifications. The Union contended there were excessive classifications and proposed the number be reduced." In order to prepare its seniority proposal, the Union requested an up to date list of employees and wage rates. The Company then prepared and presented to the Union such a list - General Counsel's Exhibit 33. The Company also presented to the Union its counterproposal on jury duty, vacations, bulletin boards, separability, health and welfare, leave of absence, arbitration, grievance procedures, hours of work, miscellaneous, holidays, and term of agreement General Counsel's Exhibits 35(a) through 35(k). The Union then presented an economic proposal. The Union proposed that all employees receive a 10-cent across-the-board increase, with certain classifications such as over-the-road truckdrivers receiving $1.90 per hour; local truckdrivers $1.70; I.B.M. $1.70, except for the leadman, who would get $2.20; shipping clerks $1.85; and that employees Lamas, Hodges and Bennett, together with eight other employees, should be red circled in the warehouse, and other clerks were to be red circled." The Union also asked that the Company pay a night premium rate for those employees on the night shifts, that the health and welfare plan be paid entirely by the Company, and also requested two additional holidays. The Company pointed out the employees had just received an increase in February, as aforestated, and that the Union's proposal was fairly high, but that it would take it into consideration with other economic issues. The Union indicated that it was talking about a 1-year term, and Respondent stated that it was not opposed to a 1-year term, but thought that a longer term would be more satisfactory. The Union informed the Company that it would make further and other counterproposals. On or about March 7, 1967, the Union delivered to the Respondent the Union's new counterproposal which was "On January 26, 1967, the Company wrote the Union regarding what Respondent proposed to do as to the increase in the federal minimum wage, which was to become effective February I, 1967 The Respondent proposed to maintain the same differential that an employee was then receiving over the minimum wage after February 1. The letter stated that the Company was willing to meet and discuss the matter , and unless notified otherwise the Company would assume the Union concurred with the increase G. C. Exh. 31. intended to include all those items which were still open and those items which were agreeable. General Counsel's Exhibits 36 and 37. At the negotiating sessions on April 4 and 5, 1967, the parties discussed the agreement clause as proposed by the Company and a mutual agreement on the same was reached. A discussion was had on management rights as proposed by the Company, and it was agreed that "just cause" would be incorporated into the language. Some partial agreements in language were also reached on the intent and purpose clause, on the hours of work clause, and on clause involving holidays. The parties also discussed the discharge and suspension proposal of the Union, and the Union withdrew its proposal with the understanding that the right of Respondent to discharge employees for good or just cause would be taken care of in the management rights clause and in the work rules. The parties could reach no agreements in respect to health and welfare, premium pay on the 6th and 7th day of work, arbitration, maintenance of standards, union security, and call-in pay or overtime. The Union's counterproposals of March 7, as aforestated, contained no clause or provisions relating to seniority." On July 11 and 12, 1967, the parties again assembled for negotiations. They initially discussed language in the wage proposal, and were able to reach agreement on such but nothing on the rates. The grievance and arbitration procedure were also discussed from the various proposals, and some limited agreements were reached in these areas subject to further counterproposal by the Company.=6 On July 12, 1967, the parties talked about certain employees the Union had questions on, and the leave of absence proposals were then discussed with a few limited agreements reached on this item. It appears that there was also some limited accord reached on the change of ownership clauses and proposals. At the negotiating meeting on August 3, 1967, arbitration proposals were again discussed (Section 1 had been agreed to), and the Company presented a counter to Section 2 - G. C. Exh. 59. The Company stated this was an agreement which had been reached between the Union and another company and thought it would work at Respondent's company. The Union wanted to "hold" this proposal. The parties then discussed the open item in the change of ownership in the union proposal, Section (b), and the Respondent stated that it had previously agreed to Section (a), but was still opposed to the Section (b) part. Discussions followed on whether or not supervisors could work under certain situations and the Company submitted "Under the Union's proposal the employees were separated into three separate occupational groups: warehouse, truckdrivers and clerical. The Company took the position that very few employees carried one classification for a full day, and as a result there would be an overlap in some of the classifications. "The Union contended that certain employees had received prior wage increases "wa)I out of line" in comparison with other employees in the same classification - and these were the employees "red circled." "The parties agreed to meet again on May 15 and 16, 1967 but these meetings did not take place Prior to that date, Respondent was in contact with the Union and it was suggested those dates be set for other negotiations (Elsa Canning Company). It appears that the parties were pushing for negotiations in Elsa Canning and it was then agreed to meet on May 25; but this was also postponed due to conflicts in schedules in other negotiations, and there were other similar and legitimate postponements, as the record adequately reflects. "In talking about grievance and arbitration the Company informed the Union that it would accept either of the proposals which had been previously agreed to between the parties in the Valley Co-Op Mill Contract or the Tex-Steel Contract. SWEENEY & CO. a counterproposal on this - General Counsel's Exhibit 58, but no agreement was reached. Hours of work was then-brought up, and by the Company making a few changes to satisfy the Union, agreements were reached on sections 1, 3, and 5 of General Counsel's Exhibit 35(i). The Union agreed to overtime pay after 40 hours and the method of payment. There was no progress on union security, but the Company agreed to compensate employees for 2 hours under call-in pay. The Union had originally requested 8 hours so no final agreement was reached. Discussions were also had on time and one half for all time in excess of 8 hours, time and one half for holiday work, and split shifts, but no accord reached. Some mention was then made of the economic proposal previously submitted by the Union, as aforestated, and the Company replied that they would make an economic proposal later." The first topic taken up at the meeting on October 13, 1967, was the matter of insurance and the type of coverage the Company was providing and its cost. Since this was the first negotiating meeting for the Union's International Representative, Harold Shapiro, it was suggested the parties review the .entire proposals in negotiations up to date to ascertain what had been agreed upon and what were the open items and what were the economic and noneconomic items. The parties then discussed union visitation, jury duty, management rights, bulletin boards, separability, holidays, leave of absence, grievance procedure, and hours of work, and by amendments agreements were reached on these topics with minor exceptions. On the matter of grievance procedure only one section of the proposals was left open, and there were also a few details to work out on the leave of absence subject matter. The parties also reached considerable accord on arbitration as proposed by the Company, but the Union wished to get additional information on this. Vacations and separability clauses were also mentioned, but no final agreements were reached. The Union then presented another economic proposal which was as follows: Wage classifications with a 10-cent across-the-board increase applied to each classification; 2 additional holidays - the Company was presently giving 5; vacations - I week after 1 year, 2 weeks after 5 years, 3 weeks after 15 years, 4 weeks after 25 years; and on health and welfare the Company was to pay the entire cost of the Union's plan. The Union stated that if the parties could agree on the above package with the inclusion of a provision on union security -- then the balance of the noneconomic items still in dispute could be settled. The Company replied that this economic proposal was "pretty steep," and the Union requested a counterproposal. The Respondent then presented its economic proposals and it consisted of a 2-cent-per-hour wage increase, the same holidays as presently exist, 1 week's vacation, and agreed.to continue the present health and welfare plan - G. C. Exh. 48. The Union expressed their dissatisfaction with the Respondent's counterproposal, and then inquired as to what would happen with wages on February 1, 1968, when the federal minimum wage would he raised to $1.60 an hour, and Shapiro testified he was never able to get an answer to this question. The Union then stated it would place the Respondent's economic offer before the membership of the Union for a vote. Shapiro testified that at the "For several good and legitimate reasons the parties were unable to meet until October 13, 1967, and in the interval the Company supplied the Union with some additional information - G C. Exh. 46. 223 membership meeting this proposal was unanimously rejected. At the meeting on November 1, 1967, the parties began discussion of the grievance procedure, as contained in General Counsel's Exhibits 37 and 35(h) and reached agreement on the entire grievance procedure article. The Union agreed that 92nd Judicial District Court could select arbitrators for matters in dispute as proposed by the Company, and as result the parties reached total agreement on the matter of arbitration. The differences on leave of absence proposals were then taken up and mutual accord on this item was nearly attained. The Union's proposal on change of ownership was discussed next, and after the Union withdrew the section (b) part which had been open, this subject was settled and agreed to. The parties then discussed hours of work, agreed to part of it, leaving one section open. It appears that the separability proposal was also discussed and then agreed to. Overtime proposals entered into the negotiations, and the Company agreed to pay time and a half after 40 hours, but would not pay overtime for work performed on the 6th and 7th day of any week. The Union then inquired as to the Respondent's position on possible wage increases and their position after February 1, 1968. The Company replied that they were not in a position to offer any more than contained in its counterproposal made on October 13, 1967, and Shapiro stated he was asking about the "differentials" to be maintained after February 1, 1968.12 Shapiro testified that he also inquired as to the status of employees working from midnight to 7 a.m. The Union wanted these employees to receive a night shift differential in pay similar to employees in the grocery department, and who worked from 2 p.m. until midnight. Shapiro related that the Company regarded the hours from 2 p.m. until midnight as more disruptive than the shift from midnight to 7 a.m. Shapiro then stated in clear terms that the Respondent was not bargaining in good faith and the meeting adjourned. At the next meeting on November 16, 1967, a representative of the Federal Mediation and Conciliation Service attended, by mutual consent of the parties, and since this was the first meeting for the Mediator he asked both parties to review the status of the contract, listing the remaining open items, agreed items, and separating the items into economic and noneconomic items. The main items still open were leave of absence, successorship, no-strike, no-lockouts, miscellaneous, term of contract, maintenance of standards, unit work, union security, waiver of bargaining, vacations, holidays, hours of work, health and welfare, and wages.23 The parties then entered into a discussion on leave of absence when a dispute arose over the length of notice to be given on the clause relating to leave for an employee for Union reasons. The discussion became quite heated, and finally the Mediator suggested separate meetings. After their separate meetings the parties returned for joint negotiations and the Union accepted the Respondent's proposal pertaining to strikes and lockouts and also agreed to several sections in the miscellaneous proposal - General Counsel's Exhibit 35(j). The Union then again raised the question about the "Shapiro was referring to what the Respondent's position would be if an employee, presently making more than the minimum , would continue to make the same amount above the minimum after the minimum was increased in February 1968. "There had been several extensive agreements in some of these subject matters, as aforestated, but if an article or proposal had any disputed section - it was marked open. 224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD differentials after February I, 1968, and the Company answered that the wage increase previously submitted to the Union would be absorbed by the increase in the minimum wage as of February 1, 1968, and this meant that employees who were getting less than $1.60 would receive $1.60 in February, 1968, and on those employees receiving more than $1.60 now, any increase would have to be considered after that time. The Union then made another revised economic proposal which was on a 1-year basis with union security and checkoff; proposed one additional holiday instead of two; 2 weeks' vacation after 5 years, 1 week after 1 year, 10 cents across-the-board increase effective on signing of the contract; and a 21-cent increase on February 1, 1968; night-shift premium for seven employees; agreed to Respondent's health and welfare insurance program; and proposed time and a half for holiday work. The Company told the Union they wanted to "put a pencil" to this revised proposal and Respondent's officials in San Antonio were not immediately available. At the next negotiating meeting on December 13, 1967, the Company had anticipated some discussion with the Union about the home center department closing and its letter of November 30, as aforestated, but the Union did not raise the issue nor mention the letter. The Company informed Shapiro that they had studied his last revised economic proposal, but they were resubmitting the Respondent's economic proposal made on October 13, 1967, and for a 1-year contract. The Union again asked what would happen on February 1, 1968, and the Company replied that those employees getting less than $1.60 an hour would be raised to $1.60 an hour beginning February 1, 1968. This meeting then adjourned. By letter dated January 19, 1968, the Company contacted Shapiro relative to February l when a minimum increase was required by the Fair Labor Standards Act. The letter stated that Respondent proposed to maintain some differential resulting in an across-the-board increase of 20 cents per hour for all employees. The letter was for the purpose of advising the Union of this and inviting any comment which they might have and stated the Respondent was willing to meet and discuss the matter. The letter also stated that since the effective date of the amendments was February 1, 1968, the increases should be put into effect at that time, unless they heard differently from the Union by January 31, 1968. G. C. Exh. 52. By letter dated February 3, 1968, Shapiro informed the Company that the Union did not concur. The Respondent was then notified by its attorney that the Union had not concurred and advised that no change in the wage structure should be made at that time, except that all wages under $1.60 per hour must be increased to $1.60 as of February 1, 1968, as required by law. On February 8, 1968, the Respondent tried to call Shapiro about this matter at his Brownsville, Texas, office, but he was not in. Respondent's attorney, Scott Toothaker, testified he then informed the Union's office in Brownsville that he would talk to anyone in the office and did speak with Dagaberto Barrera, and Barrera informed him that there was no way to get in touch with Shapiro. Barrera then asked what the problem was, and after an explanation Barrera replied he could see no objection to going ahead and giving the increases under the circumstances, and the increases were thereafter implemented. _' "At the time in question Barrera was admittedly an agent of Local 173. As indicated earlier herein, the employees went out on strike on February 11, 1968, and on April 5, 1968, the Company received a letter from the Union requesting the resumption of negotiations. At the negotiating meeting on April 19, 1968, the Union inquired if the Company had changed its position on vacations. The Company replied it was still offering the same, and a discussion then followed concerning the qualifying date for vacation eligibility. The Respondent also maintained that every employee should receive the same vacation - l week. The Union then asked whether the 2-cent across-the-board was still on the table, and Respondent stated it was not. It appears to be the contention of the Company that it was absorbed by the federal minimum increase as of February 1, 1968, and so informed the Union. The Company also reminded the Union that all employees received a 20-cent across-the-board increase on February 1, 1968. The Union inquired as to whether Respondent was still refusing to grant the checkoff, and Respondent again restated its position concerning this item. The Respondent then stated they would submit a new proposal on the basis that all noneconomic items could be agreed to. Accordingly the Company offered a 1-year contract, proposed that it would grant another one-half day paid holiday, that it would retain the present vacation schedules with language conforming with the existing policy, that it would continue its health and welfare program, and would grant a 5-cent night premium to the produce department. Shapiro stated that he was "shocked" by this proposal, and informed the Company they were attempting to get a contract by merely paying $680. The Union then presented a counteroffer proposing the following: Six cents increase across-the-board vacations in the amount of 1 week after 1 year, 2 weeks after 7 years; accepted the Company's insurance proposal and 5 cents differential for the produce department; requested an additional half day holiday; and reasserted its proposal on the checkoff. Respondent stated that the Union's counteroffer was unacceptable. Shapiro then read a statement terminating the strike - with all boycott and picketing activity, and unconditionally offered the strikers back to work. The Company replied that the strikers had been permanently replaced. Shapiro then stated the Union would drop its demand for a half a day's holiday prior to New Years. The Company replied this would not break the impasse. Final Conclusions Turning first to the allegations concerning the closing of the home center department and the termination of Hector Garcia. The economic factors, as aforestated, make it clear that the operational problems which Respondent encountered in attempting to adequately supply its customers out of the McAllen home center department, and which it could not effectively continue under sound business practices, must be deemed the dominant, compelling, and controlling reasons for closing the department. This record clearly shows that the home center department required double work in many instances, was costly to operate, and that it was extremely difficult for stores or customers to place orders due to the fact that this department in McAllen had limited supplies and inventories. In view of the undisputed fact that economic reasons for the closing existed, coupled with all the other events, evidence and circumstances in this record, I cannot find that the closing of the home center department was in any degree discriminatprily motivated. SWEENEY & CO. 225 See Druwhit Metal Products Company, Etc., 153 NLRB 346; Cumberland Shoe Corporation, 156 NLRB 1130. The fact that I have found one independent 8(axl) violation involving Supervisors Villarreal and Armando Islas, as previously detailed herein, does not justify a finding of antiunion motivation so strong as to outweigh the controlling and valid economic considerations. Cumberland Shoe Corporation, supra. In N. L.R. B. v. Darlington Manufacturing Company, 380 U .S. 263, the Supreme Court held , inter alia, that a permanent and bona fide partial closing of a business is an unfair labor practice under Section 8(aX3) of the Act only if the closing was "motivated by a purpose to chill unionism " in the remaining segments of the business, and the employer reasonably could have foreseen that the closing would have such an effect . Moreover, as the Supreme Court clearly indicated in Darlington permanent closing of part of an employer's business even though motivated by a desire to thwart the unionization of the closed operation, is not an unfair labor practice unless there is proof as well that the closing was ". . . motivated by a purpose to chill unionism in any of the remaining plants of the single-employer and the employer may reasonably have foreseen that such closing would likely have that effect." I submit that there is lacking a preponderance of evidence in the instant case which would support a finding that the closing of the McAllen home center department was motivated by a purpose to chill unionism at Respondent's other plants . In making this determination I am guided by the Supreme Court's holding in Darlington that it did not suffice to establish that unfair labor practices charged there to argue that the Darlington closing necessarily had an adverse impact upon unionization in other plants of the Deering -Miliken combination ; it was necessary to establish specifically the existence of a motivation aimed at achieving the particular prohibited effect. There is no evidence in this record that contemporaneous union activity existed at Respondent's other plants at a time when the decision was made in the summer or fall of 1967, to close the home center in McAllen . The employees of the Laredo warehouse are not now, nor have they been during the period involved in this proceeding, represented by any labor organization, and in the fall of 1966 an election was conducted among the employees working at the San Antonio warehouse to determine whether they wanted to be represented by the Teamsters Union. The Teamsters lost the election, and at all times thereafter, the employees working at the San Antonio warehouse have not been represented by any labor organization . From the latter event it is obvious that in 1966 the attempts to organize the Respondent's San Antonio warehouse was "chilled" by the employees themselves when a majority of them refused to support the Teamsters in the election. So far as this record is concerned the immediate advent of possible unionization at San Antonio had already been decided and was in the background by the time any decision was made to close the home center in McAllen. There remains for consideration the allegation that the termination of Hector Garcia and the closing of the home center, without notifying or consulting with the Union was violative of 8(aX5) of the Act. The General Counsel argues that the failure to give the Union any notification or opportunity to bargain about either the decision to close down the department, or about the consequences of the close down with respect to whether a layoff was warranted, or if so which employees would be laid off, was another instance of the campaign of Respondent to ignore the legal obligation imposed by the Act. To my knowledge the Board has never held that an employer cannot eliminate existing inefficiency in its business operations until first securing the consent of the Union. As the Board clearly set out in Dixie Ohio Express Co., 167 NLRB No. 72, an employer has a right to determine the need to reorganize its operations along more efficient line, and the Act imposes upon it the obligation to notify the union of its plans, and to afford the union an opportunity to negotiate concerning the changes, the implementation of the plan, and the effects of the changes of employees whose job will be eliminated. On October 16, 1967, Miller was notified that the department here in question would be closed, and on November 30, 1967, he formally notified the Union of this development and that such action might result in the permanent reduction of one or two employees. Although Hector Garcia was on the employee negotiating committee and otherwise fully knew about what was happening, as aforestated, the matter was never raised by the Union at the November 1 and November 16, 1967, negotiating meetings, and although the Union had received the November 30, 1967, letter from the Company nothing was said about it at the December 13, 1967, meeting or any meeting thereafter. Shapiro testified that he did not see the Company letter until after December 13, 1967, and if he had known about it would have raised this issue. The Respondent should not and cannot be prejudiced by possible inadvertence within the internal operating procedures of the Union's business office. Under these particular circumstances the Company had every right to reasonably believe that if the Union entertained any thought or objections on the closing of the department and reduction of employees, it would have brought forth the matter at the negotiating meetings , as especially so at the meeting on December 13, 1967. In relation to the above the Company points out in its brief the following: "What the evidence and General Counsel's case leaves open is what would have occurred had the Union raised the issue at the bargaining sessions in November and December? Was the Respondent's decision to begin closing the home center department an irrevocable decision? Could the Union have raised questions and given ideas that would have delayed or even changed the situation in some material way? These questions cannot be resolved, because the Union failed to raise the issue. Even if by the Union's mistake, is the Respondent to be charged with failing to offer to negotiate after sending formal written notice and after a member of the negotiating committee knew what was going on? Respondent submits that the law cannot hold Respondent responsible under these circumstances , even if required to negotiate about the decision since the Union passed over discussing the matter with it . See Lakeside Cement Co., 130 NLRB 1365, 1374-75 (1961)." In the final analysis here, the Company did not bypass the Union with respect to closing its home center department since opportunities were afforded to the Union to bargain over it, and the Respondent notified the Union of its decision with sufficient advance notice to afford the Union an opportunity to bargain over the rights of the employees whose employment status would be altered by Respondent's managerial decision.21 "The closing of the home center department is, of course, only a partial closing of the Respondent's enterprise and not a complete going out of a business by Respondent. Thus, we are not confronted with the question whether a decision to go out of business completely is a mandatory subject 226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Turning now to the specific allegation that Hector Garcia was discriminatorily discharged on December 16, 1967. The General Counsel argues that in the month of December 1967, no other permanent employee other than Hector Garcia was discharged by Respondent even though other employees had shorter length of service and were receiving the same $1.40 per hour rate, and that Respondent's contention that it had no other job available for Garcia is refuted by the evidence of Respondent's retention in its employ of employees with very short periods of service. It is further pointed out by the General Counsel, among other factors, that Garcia was a satisfactory employee for 8 years, that he was familiar with all operations in the warehouse, and that Garcia could have been retained as a full-time order puller or car unloader.11 The real thrust of the General Counsel's contention is that the Company did not place Garcia in another job within the general warehouse operations when the home center was closed. The Respondent's answer to this argument as duly reflected in the record, is that on December 16, 1967, there were no immediate available job open in the warehouse. In meeting this obstacle the General Counsel then points out that the Company retained at least five employees who had been working for the Company, less than 1 year, and that Inocencio Ramirez was hired as a car unloader in a temporary status on November 20, 1967, after the decision was made to close the home center. However, Miller testified that all present employees at this time were performing their work satisfactorily and, therefore, he had no grounds to terminate any employee to open a job for Garcia. This record shows that the Company had not recognized seniority in its employment practices, and even the status of the negotiations between the parties as of April 19, 1968, was that there would be no seniority provisions in the labor contract.2' Miller testified that no employees were hired for the warehouse between December 16, 1967, and until February, 1968, when the strike began, and further stated that the keeping of Garcia on another job would not have enabled the Company to reduce its overtime hours." Miller also credibly testified that in order to reduce overtime he would have been required to replan his work schedule and hire additional employees, but the retention of just one employee would not have helped this situation. There is some testimony on the interchange of jobs from time to time by employees, in the warehouse. However, it is clear that Garcia spent the majority of his working hours in the home center department or work in direct relation thereto, as aforestated, and this was his main and overriding responsibility and job. of bargaining under Section 8(aX5) of the Act. In Fibreboard Paper Products Corp. v. N L.R.B., 379 U.S. 203, the Supreme Court's decision was limited to the type of contracting out involved in that case , and did not explicitly deal with the question whether an employer must bargain concerning a decision to terminate a portion of its operations . It seems to me that in the instant case I need not reach or determine the Supreme Court's full impact from the Fibreboard and Darlington decisions, because of my findings, and among others, that the Union here was afforded ample opportunities to bargain about the closing in question. "Admittedly, the Respondent had full knowledge that Garcia was an adherent for the Union. "For background purposes, the Company presented evidence showing the Respondent had experienced a similar closing in 1958 of the produce department, and the closing was handled in the same manner. Five employees employed in that department were terminated and given the same termination pay. "At the time in question the Respondent was paying overtime after 40 Since, as the record shows, the termination of Hector Garcia was directly attributable to the closing of the home center, and due to the fact the Company had no work for Garcia and in order to keep him on would have had to terminate another employee. I find that his discharge was not discriminatorily motivated. Other than what has been discussed heretofore, the complaint in Case 23-CA-2914 further alleges the Respondent violated Section 8(a)(5) of the Act by negotiating with no intention of entering into a contract, by refusing to make a proposal on wages since October 13, 1967, and by refusing to negotiate on checkoff or any union security provisions. At the initial meeting between the parties in January 1967, it was mutually agreed to hold economic matters until the latter part of the negotiations, and the Union did not present any economic proposals until the meeting on March 1 and 2, 1967. At the meeting on August 13, 1967, the Company stated they would make an economic proposal later and on October 13, 1967, the Respondent presented an economic proposal which covered wages, holidays, vacations and health and welfare. The General Counsel argues that the sum total of this proposal was to retain the same holiday, vacation and health and welfare benefits that the Company been paid previously, and additionally only granted a wage increase of 2 cents per hour. At the negotiating meeting on December 13, 1967, the Company stated they were resubmitting the economic proposal they made on October 13, 1967. On April 19, 1968, the Company outlined their counteroffer pertaining to economics and proposed an additional 5-day paid holiday, that it would retain existing vacation schedules and its health and welfare program, and would grant a 5-cent night premium to employees in the produce department. As indicated previously herein, there is also the contention by the Union that they were never able to ascertain what would happen on February 1, 1968, when the federal minimum wage would be raised. It appears that the Union made inquiries about this matter at three or four meeting sessions. The credited testimony shows that at the meetings on November 16, and on December 13, 1967, the Company gave some answers to this question, as aforestated, and if the replies caused confusion or misunderstanding it was probably because the Union disagreed with the Respondent's proposal in this respect. It is further noted that by this the Union had also experienced the Respondent's reaction to the federal minimum wage increase of February 1, 1967, as detailed earlier herein, and the Union at that time expressed full accord. Based on the above and in consideration of this record as a whole, there is not actual basis which will adequately sustain the allegation that the Company refused to make a proposal on wages. At the initial session between the parties the Company informed the Union it was opposed to the checkoff proposal, that this was interfering with the business of the Union, and the Company was not interested in knowing their employee members of the Union. At the negotiating meetings on April 4 and 5, 1967, union security was again discussed and the Respondent stated the Union "was in a good position to collect their own dues," and that the Union had two fully stopped offices in the McAllen area to take care of collections. On August 3 and on November 16, 1967, the parties again discussed union security, and the Union stated that they were going to hours, and day shift employees were working approximately 50 hours a week. SWEENEY & CO. 227 insist on a 12-month irrevocable checkoff. At the session on April 19, 1968, this matter once again came up and the Company restated its position - that they were "philosophically" opposed to it, that the Union was new in the area and the Company knew very little about them, and in the first contract the Company could not agree to a union security clause , but that possibly later on the Respondent could agree on a checkoff provision. On one or two occasions during the negotiations Shapiro asked if the Company would agree to an agency shop, and in relation thereto mentioned the States of Florida and Indiana. The General Counsel argues that the Company, by sticking to its claim that it was philosophically opposed to the checkoff or other form of union security and by refusing to consider any type of such clause, effectively struck this subject of bargaining from the area of negotiation and thereby demonstrated further evidence of its bad faith. Turning now to the overriding or general allegation in Case 23-CA-2914, that the Respondent negotiated in bad faith and without an intention of entering into a contract. The law is clear that negotiations carried on in good faith, where there has been an open exchange of ideas, proposals and counterproposals, and an indication of willingness to compromise , cannot be found to be violative of Section 8(a)(5) of the Act simply because on some of the issues, even though they may be crucial, one or the other of the parties has been unwilling to recede from its position so as to yield to the contentions or demands of the other. The record in this proceeding of the negotiations and the proposals by the Respondent , its availability and participation on 14 different occasions since the Union was certified, and its willingness to sign an agreement, clearly establishes that the Respondent's conduct in the course of these dealings was in keeping with the spirit of the Act. The record here further clearly demonstrates that each item in the various proposals , were, at one time or another, openly discussed, and that full agreements were reached on several clauses. Partial agreements, in one phase or another, were also reached on numerous proposals, as all aforestated heretofore . In several instances during the negotiations the Union adopted the proposals of the Company, but in other instances the Company accepted modifications . Shapiro even admitted that the parties finally reached total accord on proposals dealing with grievance procedure, arbitration, management clause, union visitations, jury duty, separability, bulletin boards, and also admitted that partial or limited agreements were reached on such items as leave of absence , hours of work, vacations, change of ownership, and overtime. This record shows that when the Company opposed any proposals by the Union it stated the reasons or basis for their objections. On wages the Company maintained their 2-cent across-the-board proposal in 1968 on the basis that employees had recently received a 20-cent increase under the Federal minimum wage law; informed the Union on several occasions as to the reasons why they opposed checkoff; told the Union they opposed the agency shop because of an opinion from the Attorney General of Texas holding such was illegal; explained to the Union their position in having a larger number of classifications; and informed the Union of their reasons for initially refusing to give employees in the produce department a night-shift differential in pay. The Company supplied several lists of their employees and other information as requested by the Union; for purposes of clarity they drafted their numerous counterproposals in writing; they supplied the meeting place for the negotiations; and when the two wage increases were given to fulfill the requirements of the Federal minimum wage law, the Union was notified beforehand and given the opportunity to discuss the matter and register any objections they might have. What is also abundantly obvious in this record is the difficulty encountered by the parties in maintaining continuous continuity in their negotiations . Due to illness and other circumstances the Union had to change their principle negotiator in the middle of the stream so to speak, and in at least one or two instances the Union had office troubles in keeping track of communication from the Company. The Supreme Court has pointed out that the employer's obligation under Section 8(a)(5) and 8(d) to bargain in good faith does not require the yielding of positions fairly maintained, nor permits the Board, under the guise of bad-faith bargaining, to require an employer to contract in a way the Board might deem proper . Nor may the Board . . directly or indirectly, compel concessions or otherwise sit in judgment upon the substantive terms of collective-bargaining agreements N. L. R. B. v. American National Ins. Co., 343 U.S. 395, 402, 404. Based upon the controlling legal guide lines and their applications to the facts in the instant case , I have found insufficient evidence to sustain the General Counsel's allegations and contentions that the Respondent did not bargain in good faith. There remains for consideration the effect of my 8(a)(l ) finding and its impact upon the Respondent's total conduct . This single incident involving Villerreal and Employee Islas, as aforestated , must be regarded as an isolated and minor violation. The Respondent's good faith in bargaining, established after many months the conference table, must stand under all the circumstances and events in this case , and its single and isolated unfair labor practice away from the table was sufficiently separated so as not to destroy the good bargaining. In accordance with my findings, conclusions, and discussions herein, I hereby dismiss all of the 8(a)(1), (3), and (5) allegations in Case 23-CA-2914. On September 13, 1968, the complaint in Case 23-CA-3079 was issued alleging that Respondent had violated Section 8(aX3) and (1) of the Act with respect to 30 designated employees by refusing to reinstate said employees to their former or substantially equivalent jobs after April 19, 1968, when various jobs became available at Respondent's McAllen warehouse operation. On February 9 or 10, 1968, the Company had 47 employees in positions covered by the Union's certification . On February 11, 1968, as aforestated, 30 of these employees went out on strike , and the Respondent then started hiring new employees to replace the strikers. Between February 11, 1968, and the Union's unconditional offer of reinstatement and termination of the strike on April 19 , 1968, the Company hired 46 employees to fill the positions left vacant by the strikers and on April 19, 1968, the Company had a full complement of 48 employees." The record further reveals that subsequent to February 11, 1968, there has been no significant change in Respondent's operation or in the work performed by employees in the various job classifications. No new "Hired were 47 or 48 to fill the 30 jobs made vacant by the strikers, and out of the 47 or 48 new employees hired during the strike period - approximately 16 of them quit or were discharged. 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD departments have been created nor have any been eliminated , and no job positions have been abolished. At the present time the Company has actually 50 employees covered by the certification - 3 more than the number it had on February 11, 1968. Plant Manager Miller testified that when jobs became available after April 19, 1968, he did not recall any of the strikers nor did the Company make any attempts to contact any of them. Miller admitted that on May 23 or 24, 1968, he received a letter which was signed by the strikers, and in which they again offered their availability for work. Miller also admitted that subsequent to April 19, 1968, he knew some of the strikers had contacted the Texas Employment Commission seeking unemployment compensation benefits. This record shows that approximately 20 strikers filed claims with the Texas Employment Commission, and the Company made protests to their claims . On June 21, 1968, a hearing was held on the above matter and in September 1968, the Commission entered a decision entitling the claimants to certain benefits. Therefore, during all the times after April 19, 1968, the Respondent was fully aware that most of the strikers were actively seeking employment through their claims with the Commission and by their May letter, and although positions became available, Respondent made no effort to contact or reinstate any of the strikers. Miller stated that new employees were hired through an employment agency , others through a newspaper ad, and that the rest were hired when they appeared looking for work at the warehouse . He testified that the decision was made not to take the strikers back on the basis that their jobs were filled by replacements. Miller further stated that since April 19, 1968, 15 new employees have been hired to replace strike replacement employees, but the job in which such an employee was initially hired for - may not be the job he is now or currently working at.30 This record shows that many of the strikers had long service records with the Company, and some training or experience is necessary in certain jobs before a new employee can perform his job satisfactorily. In fact, the record reveals that there was a considerable turnover among the nonstrikers and strike replacements, yet, although the regular employees on strike were generally experienced in many of the jobs in their respective departments, not a single striker who had once been replaced was recalled despite the vacancies which arose. The Respondent argues that application for employment and for reinstatement are two different concepts, and in cases involving alleged discrimination in rehiring economic strikers, it is necessary that applications for employment be made, and it is held that a mass request at a time when no vacancies existed is not sufficient, nor a continuing application for employment. The Respondent further contends the Supreme Court decisions in N.L.R.B. v. Great Dane Trailers , 388 U.S. 26, and in N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375, do not support the position of the General Counsel in the instant case , and also maintains that replaced strikers "Since April 19 , 1968, in jobs covered by the certification , the Company hired the following employees : G. 0. Garcia, A. L. Garcia, E. Torres, C. A. Muniz, Roberto Flores, A. Garza, Jr., S. Canto. Jr., Adam Garcia, R. Z. Vela, Roberto Devela. R. G. Guzman. Jr., Armando Garcia, H. Salinas, and R. Garza. Subsequent to the above date the Company has had two vacancies in the day warehouse crew , three vacancies in the night warehouse crew, one vacancy as drivers , and four or five vacancies in the produce department . G. 0 Garcia worked until May 5 , 1968, E. Torres worked up until July 6, 1968, and R. Z. Vela worked up until July 11, 1968. None of the employees in the I . B.M. department went out on strike. are no longer employees. Previously herein, I have dismissed all the allegations in Case 23-CA-2914 and therefore, the strike in question here must be deemed an economic one." In a number of earlier cases the Board stated or implied that replaced economic strikers were entitled only to nondiscriminatory treatment as applicants for new employment , and that an economic striker's right to reinstatement is determined at the time application for reinstatement is made. However, the Supreme Court in Fleetwood and Great Dane has now held that the right to the job does not depend on its availability at the precise moment of application, and that strikers retain their status as employees who are entitled to reinstatement absent substantial business justification, and regardless of antiunion animus. In Fleetwood, the employer was held to have violated the Act by failing to reinstate strikers and by hiring new employees for jobs which were reestablished when the employer resumed full production some 2 months after the strikers applied for reinstatement . In so finding, the Court pointed out that by virtue of Section 2(3) of the Act, an individual whose work ceases due to a labor dispute remains an employee if he has not obtained other regular or substantially equivalent employment, and that an employer refusing to reinstate strikers must show that the action was due to legitimate and substantial business justification. The court further held that the burden of proving such justification was on the employer and also pointed out that the primary responsibility for striking a proper balance between the business justifications and the invasion of employee rights rests with the Board rather than the courts . The Court also noted that an act so destructive of employee rights, without legitimate business justification, is an unfair labor practice without reference to intent or improper motivation . Furthermore, the Court explicitly rejected the argument, asserted by the employer in Fleetwood that reinstatement rights are determined at the time of initial application." The underlying principle in both Fleetwood and Great Dame, supra, is that certain employer conduct, standing alone, is so inherently destructive of employee rights that evidence of specific antiunion motivation is not needed. Specifically in Fleetwood, the court found that hiring new employees in the face of outstanding applications for reinstatement from striking employees is presumptively a violation of the Act, irrespective of intent unless the employer sustains his burden showing legitimate and substantial reasons for his failure to hire the strikers. A similar parallel exists here which requires application of the same principle . When job vacancies arose as the result of the departure of permanent replacements , Respondent could not lawfully ignore outstanding applications for reinstatements from strikers and hire new applicants absent legitimate and substantial business reasons,31 irrespective of intent . In Laidlaw Corporation, 171 NLRB No. 175, relying on the principles set forth in "The strike was called on the premise or basis that the Company had refused to bargain in good faith and had discriminatorily discharged Hector Garcia. "In the instant case a valid unconditional request for reinstatement was made by the Union on behalf of all strikers on April 19, 1968 , despite the fact that not all the strikers submitted individual applications at that time or thereafter. As the Board recently stated, "under settled law, it is well within the Union's authority, as the employees' bargaining agent, to make an unconditional application for reinstatement on behalf of the strikers ... Trinity Valley from & Steel Co., 158 NLRB 890. "E. g., as may be justified by a change in a employer 's operations or where striker applicants lack requisite skills. SWEENEY & CO. Fleetwood and Great Dane, the Board held that replaced economic strikers who had made unconditional application for reinstatement and who had continued to make known their availability for employment are entitled to full reinstatement to fill positions left vacant by the departure of permanent replacements. In so finding the Board stated: We hold, therefore, that economic strikers who unconditionally apply for reinstatement at a time when their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon the departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer full reinstatement was for legitimate and substantial business reasons. In the instant case, as pointed out, the Respondent had positions available upon the departure of the strike replacements and that the strikers, on at least two occasions had made an unconditional application for reinstatement. Respondent failed to establish that any of the strikers had in the meantime acquired regular and substantial equivalent employment or that failure to offer reinstatement was for a legitimate and substantial business reason. In accordance with the above, the Company has violated Section 8(a)(3) and (I) of the Act by its refusal to reinstate any of the striking employees to the jobs which became available after April 19, 1968. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent described above have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices violative of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent violated Section 8(a)(1) and (3) of the Act by failing to offer reinstatement to the certain strikers when replaced vacancies arose after April 19, 1968, I will recommend that Respondent offer to such strikers whose jobs became available, immediate and full 229 reinstatement to their former or substantially 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 by reason of the discriminatory failure to reinstate them by payment to each of a sum of money equal to that which each normally would have earned as wages from the date of the discriminatory failure to reinstate them to the date of Respondent's offer of reinstatement , less the net earnings of each during such period, with backpay and interest thereon computed in the manner prescribed by the Board in F. W Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The order in which these strikers would have been offered reinstatement shall be governed by their departmental seniority. The commencement of the backpay period can therefore be determined by an examination of the seniority rosters and the dates when new hires were made in the respective classification and departments, all of which are present by the exhibits in this record. It will also be recommended that the Respondent preserve and make available to the Board, upon request, payroll and other records to facilitate the computation of the backpay due. Upon the basis of the foregoing findings of fact and upon the entire record in this 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. By terminating the employee status of strikers and by failing to reinstate them when vacancies arose after their unconditional request for reinstatement , Respondent has discriminated with respect to their hire , tenure, and terms and conditions of employment , thereby discouraging membership in the Union, and has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 4. By the foregoing conduct, Respondent has interfered, with, restrained , and coerced its employees in the exercise of their Section 7 rights and thereby has engaged and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 6. Respondent did not engage in any unfair labor practices alleged in the complaint, which are not specifically found herein. [Recommended Order omitted from publication.]