Bush Hog, Inc.

BUSH HOG, INC. Bush Hog, Inc. and Roy D. Chance and United Steelworkers of America, AFL-CIO. Cases 15-CA-3380 and 15-CA-3380-2 June 19, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 27, 1969, Trial Examiner Joseph I. Nachman issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended , and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended dismissal as to them. Thereafter, the United Steelworkers of America, AFL-CIO, filed exceptions to the Trial Examiner's Decision, the General Counsel filed exceptions and a supporting brief, and the Respondent filed a brief in answer to 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 this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner' s Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Bush Hog, Inc., Selma, Alabama , its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'Resent has not excepted to the Trial Examiner's findings of 8(aX5) violations. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JOSEPH I. NACHMAN, Trial Examiner : This case tried before me at Selma, Alabama, on December 3, 4, and 5,' 815 on a consolidated complaint pursuant to Section 10(b) of the National Labor Relations Act, as amended,' herein called the Act. The complaint, as orally amended at the hearing, alleges that Bush Hog, Inc. (herein called Respondent .or Company), violated Section 8(a)(1) of the Act by interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act; violated Section 8(a)(5) and (1) of the Act by changing the wages and other terms and conditions of employment of its employees in an appropriate unit without consulting with United Steelworkers of America, AFL-CIO, (herein called the Union), the duly certified collective-bargaining representative of said employees, and violated Section 8(a)(3) and (1) of the Act by discharging and refusing to reinstate its employee Roy D. Chance because of his membership in, assistance to and support of the Union. The complaint further alleges that on August 30, certain employees of Respondent went on strike to protest Respondent's alleged unfair labor practices, that said strike, which was continuing at the time of the hearing, was caused and prolonged by said unfair labor practices. Respondent, although admitting certain allegations of the complaint, denied the commission of any unfair labor practice, and contended that the strike was solely economic. For reasons hereafter stated, I find and conclude (1) that the alleged independent interference with the Section 7 rights of employees has not been established; (2) that Chance was discharged for cause; (3) that the unilateral changes in the wages and other terms and conditions of employment constituted a refusal to bargain with the certified representative of the employees, violative of Section 8(a)(5) and (1) of the Act; and (4) that the strike of Respondent's employees was caused by Respondent's refusal to recognize and bargain with the Union, entitling the striking employees to the usual protective order. At the hearing the parties were represented by their respective counsel, and were afforded full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally on the record, and to submit briefs. Oral argument was waived. Briefs submitted by the respective parties have been duly considered. Upon the entire record in the case,3 including my observation of the demeanor of the witnesses, I make the following: FINDINGS OF FACT' 1. THE UNFAIR LABOR PRACTICES ALLEGED A. Background Respondent's labor relations have been the subject of litigation before both Board and courts. In Bush Hog, ' motes are 1968, unless otherwise indicated. 'Issued October 17, on charges filed August 29 and September 4. 'On February 10, 1969, 1 issued and served upon all parties an Order To Show Cause why the record should not be corrected in specified respects. Respondent's reply to said order, concedes that all corrections referred to are proper and should be made . No other response to my order has been received. Deeming the corrections referred to necessary to correctly reflect the proceedings and the testimony of the witnesses, the record is now corrected in all respects set forth in my aforesaid Order which I now direct be made a part of the record in this case. 'No issues of commerce or labor organization is presented . The facts necessary to establish these jurisdictional elements were stipulated by the parties, or have been admitted by the pleadings. Moreover, the Board has heretofore made those findings. See Bush Hog, Inc, 173 NLRB No 74. 176 NLRB No. 112 816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inc., 161 NLRB 1575, a proceeding growing out of an organizational campaign by a local of the Teamster's Union, the Board found that in violation of Section 8(a)(1) of the Act, Respondent interrogated employees, threatened them with reprisal , promised or granted them benefits, told employees that employment policies with respect to race would depend on whether or not they designated the Union, that if the employees chose Union representation , Respondent would suspend or curtail operations, that strikes and violence would occur, and that it would use force to prevent or end any legal strike or peaceful picketing . Prior to the issuance of the complaint in the aforementioned case , on a petition filed by the Union in that proceeding, the Regional Director conducted an election in the unit there found appropriate, which the Teamsters lost. Timely challenges and objections were consolidated and heard with the unfair labor practice case . Based on the findings in the unfair labor practice case, the Board set aside the election, severed the representation case and remanded it to the Regional Director to hold a new election at the appropriate time. The Board's order in the aforementioned case was enforced by the Court of Appeals for the Fifth Circuit. N.L.R.B. v. Bush Hog, Inc., 405 F.2d 755. The new election directed by the Board was conducted on February 1, 1967. The tally of ballots issued at that time showed 84 votes for the Union, 82 against, with one void and 22 challenged ballots.' The Union filed timely objections to conduct affecting the results of the election. In his report,' the Regional Director sustained 7 challenges, overrruled 15, found merit to some objections, but concluded that others raised issues which could best be disposed of by a hearing. He recommended that the 15 ballots as to which challenges had been overruled be opened and counted, and that if this resulted in a victory for the Union, the latter be certified, and if not, that a hearing be held, on the objections . After timely exceptions by Respondent the Board, on August 2, 1967, approved the Regional Director's Report and remanded the representation case to him for further proceedings in accordance therewith.' What further proceedings, if any, there were in Case 15-RC-3093, is not disclosed by this record.' In any event the record in the instant case shows that in Case 15-RC-3805, on petition of Steelworkers, the Union involved in this proceeding , an election was conducted on February 1, and on June 14, that Union was certified as the exclusive collective-bargaining representative of the employees in an appropriate unit.' On July 19, the Regional Director issued a complaint in Case 15-CA-3334 alleging that since June 24, Respondent , in violation of Section 8(aX5) and (1) of the Act, refused to bargain with the Union as the representative of the employees. By answer, Respondent admitted its refusal to bargain but asserted that no violation of the Act had occurred because of the invalidity of the election and the certification. The case was submitted to the Board upon a stipulation, and on October 30, the Board issued its Decision and Order (173 NLRB No. 74), holding that Respondent had trate was estimated at 193. 'See Report on Challenged Ballots and Objections, issued March 28, 1%7, in Can I5-RC-3093. That Report is an exhibit in the instant case. 'Unreported order of the Board in Can 15-RC-3093, dated August 2, 1%7. unlawfully refused to bargain with the Union, and directed that it do so upon request." B. Alleged Current Unfair Labor Practices 1. Interference, restraint, and coercion The General Counsel relies upon just one statement allegedly made by Plant Manager W. Russell Buster to Donald Jones, which is also connected with the alleged discriminatory discharge of Roy Chance, hereinafter considered. Chance was discharged on August 19, allegedly for defective work he performed on four machines in the production of which he had participated on August 13. A few days after Chance's discharge, Donald Jones, who is vice president of the Local, a fact well known in the plant, engaged in conversation with James Seymore, apparently a clerical or management employee. Seymore asked Jones if the latter thought that Chance might be reinstated, and offered to bet Jones $5 that such would not happen. Jones replied that it was strange that the Company would so suddenly fire Chance who had worked for Respondent some 8 or 9 years. Shortly thereafter Plant Manager Buster called Jones to his office and there accused the latter of sending him messages about Chance's discharge. Jones repeated the statement he had made to Seymore . Buster thereupon told Jones that the Company had things on Chance that he (Jones) knew nothing of; that Board representatives had told them to fire Chance; that Chance had been holding up production; and that he had some information that he (Jones) had held up production. Jones vigorously denied the accusation against him, and Buster then told Jones that "If [he] didn't know it, [his] job was on a pile of banana peelings."" 2. Conclusions as to alleged interference, restraint, and coercion Buster's statement to Jones that the latter's job was on a "pile of banana peelings," could be a violation of Section 8(a)(1) of the Act only if the statement may be reasonably construed as meaning that the threat to Jones' job was because of his support and assistance to the Union . As Buster has' just accused Jones of holding up production, which Jones had denied , it is just as reasonable to construe his statement that it was because of his holding up production that Jones' job was in jeopardy. Because the statement is at best ambiguous , I find and conclude that Buster's statement to Jones, in the circumstances in which it was made, did not violate Section 8(ax 1) of the Act." _q 'Fe BoarVa files of which I take official notice, show that the case was closed on September 11, 1%7, upon a certification that no labor organization was the exclusive representative of the employees involved. Inc unit is "All production and maintenance , shipping and receiving employees at the Selma, Alabama, plant, including truckdrivers; excluding all office clerical employees , watchmen and/or guards and supervisors as defined in the Act. "The findings in the last paragraph above , are based on the Board's findings in Bush Hog. Inc.. 173 NLRB No. 74. "Based on the uncontradicted , and to this extent credited testimony of Donald Jones. Buster, the last witness who testified in the trial, did not deny that he made the statements attributed to him by Jones. "The conclusion thus reached makes it necessary to decide the further question whether, as Respondent contends but the General Counsel denies, Donald Jones is a supervisor within the meaning of Sec. 2(l1) of the Act, and that for that reason Buster's statement to him which no other employee heard, was not a violation of Sec. 8(axl) of the Act. BUSH HOG , INC. 817 3. The alleged Section 8(a)(3) violation Roy Chance, who was discharged on August 19, had worked for Respondent for about 8 years as a welder. Although he had worked at times in fabricating parts, most of his time had been spent in production , working on the so-called tables, and he had been so employed for a period of about 8 months prior to his discharge. About the time he was transferred to the tables, Chance's pay was increased from $2 .05 to $2.15 an hour." At the tables two employees work as a team welding the respective parts together, one on the right and the other on the left side of the machine to be produced . After completing their welding operations, each welder hammers his individual stencil into his side of the machines ." As a team Johnson worked the right side of the machine, and Chance the left. Chance's last day of work was August 13. He did not return to work until August 19, because of illness, and when he returned that day he was immediately discharged. The termination notice given Chance on August 19, assigned as the reason for the discharge, "Quality of welding is consistently below standards we must maintain," and was signed by Walter Taylor, the welding department foreman , and Chance's immediate supervisor. Chance was president of the Local Union , and probably the most active prounion employee in the plant. That Respondent was aware of Chance 's Union activity is clear. Not only is Chance's name prominently mentioned in the prior Board case (see 161 NLRB at 1585-86), but Plant Manager Buster admitted in his pretrial affidavit "I knew that Chance was president of the current union campaigns and has been actively attempting to get , and has been leader of unions of Bush Hog for 6 or 7 years." On August 14, about 27 machines were rejected by inspection for defective workmanship , and returned for correction . Among these were four machines produced by Chance and Johnson . When these four machines reached the welding department , they were examined by Foreman Taylor who concluded that Chance was the employee responsible for virtually all of the defective workmanship, and reported his findings to Plant Manager Buster, who alone has the authority to discharge . Buster examined the four machines and concluded that the work was the worst of any he had seen by any employee of ordinary experience, and that the defective workmanship by Chance was intentional for the purpose of slowing down production . Respondent established that for some time Plant Manager Buster regarded Chance's work as unsatisfactory and determined to discharge him for that reason, but upon discussing the matter with counsel, was restrained from doing so because of possible prejudice to pending labor litigation . After receiving Foreman Taylor's report about Chance's defective work on August 13 and "Chance testified he had heard that other employees received raises about the same time. The General Counsel argues that this is heresay evidence, and with this excluded there is no testimony to establish that the raise given Chance was other than for individual merit . Although the General Counsel's objection to this testimony was overruled, I find it unnecessary to reconsider the correctness of that ruling . Assuming that the testimony objected to should not have been received , the burden of proving discrimination rests with the General Counsel , and if the raise given Chance was for individual merit, proof of that fact could and should have been adduced by the General Counsel . Such evidence was available to him at least by means of a subpena requiring Respondent to produce its payroll records. The record contains no proof that the raise given Chance was for individual merit. "Chance's stencil mark was G , and Eddie Johnson who was Chance's teammate for some months prior to August 19, had the stencil mark E. his own inspection of that work , as above related, Buster again discussed the matter with counsel , and on this occasion counsel agreed that Chance should be discharged. Roy Howell, who has been a welder for about 27 years, for some years a teacher in a local trades school, and who appears to be completely disinterested in the results of this litigation, credibly testified that on November 29, just 4 days prior to the trial of this case , he, at Respondent's request, thoroughly examined the four machines referred to, without knowing who had produced them . Howell testified without contradiction that his examination of the rights sides of the four machines (Johnson's work), disclosed just one defect in workmanship , namely that a weld on one machine had been missed , while his examination of the left side of the machines (Chance's work), disclosed that there were six or more defective welds on each machine. Most of these defects, according to Howell, were that the two pieces of metal to be welded had not been bonded, or to use his expression, the crack was missed entirely , or in major part. Howell's inspection led him to the conclusion that the welding on the left side of the four machines had been done by one with little experience in the field, or that the defects therein were caused chiefly by carelessness. Three days later (December 2) Howell inspected a number of other machines which he selected at random from the assembly line, and from the warehouse. On these machines, he testified, all welds were superior, and that he found no welds where the two surfaces had not been properly bonded. Howell further testified credibly that bubbles in a weld caused by improper gas mixture are readily apparent upon examination of a weld, and that on none of the machines he inspected was there any evidence of improper gas mixture or improper functioning of the welding equipment. In this connection, Clarence Hurst, a maintenance mechanic for Union Carbide Company, which installed the gas system used for welding at Respondent's plant, testified - and I fully credit his testimony - that he made the required settings on the gauges which controls the gas mixture ; that such gauges are in a locked enclosure which is entered only by the plant foreman for the purpose of changing the oxygen cylinder; that the foreman was instructed not to change the setting on the gauges , but to call Union Carbide if difficulties in the gas mixture occur; that he has received no such calls from Respondent ; that on the occasions that he inspected the system in June 1968, it was functioning properly and no adjustment of the gas mixture was found necessary or made; and that if the gas mixture was improper all of the welding would be bad.'s Chief Inspector Booker testified that he examined the four machines produced by Chance and Johnson , marking on blue prints which are in evidence the defects he found on the left side of the machines , where Chance worked. On the four machines Booker found 44 defective or unacceptable welds, and testified fully as to the nature of the deficiency in each weld, most of which , according to "There is also the credible testimony of Welding Foreman Taylor that while he had a key to the enclosure housing the gas system , he entered it only to change an oxygen cylinder, and never made any changes in the gauges regulating the gas mixture. Moreover, as heretofore related, the credited testimony of Howell was that bubbles in welds are readily apparent, and that none were in evidence when he made his inspections. Accordingly, I do not credit that part of the testimony given by the General Counsel's employee witness, that after the vacation period in July, when the new welding system was extended to all the tables , the quality of the welding was inferior by reason of bubbles in the welds caused by improper gas mixture. . 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Booker had an adverse effect on the life expectency and durability of the machine. The testimony shows that the two man team working on a Model 306, on which Chance and Johnson were working, each make from 50 to 60 welds on a machine. Assuming the larger figure, Chance made 240 welds on the four machines, 44 of which, or .1833 percent were defective for one reason or another." Welding Foreman Taylor testified that Chance's work had been deficient for some years, and from time to time he talked to Chance about it. His testimony is that after such discussion Chance's work would improve, and then he would fall back to his previous unsatisfactory performance, and that on numerous occasions he recommended to Buster that Chance be discharged, but that he was never given authority to do so. Taylor additionally testified that on April 17, 1967, June 6, 1967, and July 22, 1968, he gave Chance a "Notice of Disciplinary Action,"" all of which are signed by Chance, and that when he gave Chance the second notice the latter stated in substance that he would sign all such notices that Taylor could write, that they were not worth anything; that he (Chance) had the Union, the Labor Board, and the Federal Government behind him and that there was nothing Taylor could do about it. When asked by Taylor if he would repeat the statement in the presence of witnesses, Chance replied, "Hell no, if you say I said it I will say its a damn lie and the Labor Board will take my word over yours."" The General Counsel does not deny that Chance's work, at least on August 13, was unsatisfactory." He argues that the unsatisfactory work on August 13, was merely a pretext, and contends that the true reason for the discharge was Respondent's desire to rid it of a known active union adherent who for some years had been engaged in an effort to bring a Union into the plant, arguing that Chance's performance was no different from that of other employees who were not discharged or disciplined. To establish the alleged disparate treatment, the General Counsel relied on the following: 1. For some years Respondent has used a system of attaching a so-called reject tag to any machine that failed to pass inspection.20 To establish that Chance's work was no worse than that of other welders, the General Counsel offered in evidence all of the reject tags contained in the files of Chance, R. C. Avery, Carl Jones and Mac Jones. Carl and Mac Jones, Respondent concedes, were competent and satisfactory welders. Avery, Respondent contends, was as unsatisfactory a welder as Chance. An analysis of these tags in evidence shows that between July 1, 1965, and August 14, 1968 (his last day of work), Chance had 29 reject tags in his file." On 18 of these the "Of course, if the smaller figure is used , Chance made 200 welds on the 4 machines, 22 percent of which were defective (44 divided by 200 equals 22 percent). "I he first mentioned Notice bears the legend "Failing to fill out work order on Order No. 6126, on 4-14-67"; the second bears the legend, "Poor welding on 6805 pans. Final notice on poor welding next poor welding will be laid off"; and the last notice reads, "Production less than standard. Has been warned verbally several times." "Chance was present throughout the trial and heard all the testimony relating to his aforementioned remarks as well as to the deficienci es in his work, but he was not recalled to deny any of it . Such testimony, therefore, stands undenied on the record . I can only conclude, as I do , that his failure to deny such testimony was because he could not truthfully do so. "Indeed implicit in the tenor of the General Counsel's brief, read as a whole, is the concession that Chance 's work was unsatisfactory, and that had this been the real reason for the discharge , no violation of Sec. 8(aX3) would have occurred. legend is "bad welding" or "poor welding." There is no indication on any of these tags with respect to the number of defective welds on any machine or group of machines. Carl Jones had 14 reject tags in his file, issued on or after September 1, 1965." Of these most bore the legend "poor welding"; "missed welds"; or "left welds off." Three of these (G.C. Exhs. I1 (k), (m), and (n), each relating to one machine, and all undated), the respective legends are "missed 5 welds," "missed 4 welds," and "missed 5 welds." Except for those three tags, there is no indication as to the number of defective welds on any machine or machines. Mac Jones' file had 18 reject tags issued on or after January 5, 1965.23 Of these 14 bore legends indicating defective welding. Four of the undated tags (G.C. Exhs. 10 (o), (p), (q), and (r)), respectively refer to 4, 2, 8, and 3 missed welds. Except for these four tags there is no indication as to the number of defective welds on any machine or machines. R. C. Avery's file disclosed 39 reject tags issued to him on or after May 20, 1965, but prior to his discharge on August 12.=0 Of these 33 have a legend indicating bad welding. Six tags issued to Avery referred to a specific number of defective welds. Thus on G.C. Exh. 9 (g), the legend reads "18 welds missed on 4 machines"; on G.C. Exh. 9 (ag) the legend is "5 miss-welds"; on 9 (ai) the legend is "miss 4 welds"; on 9 (aj) "3 miss-welds"; on 9 (ak) "miss 4 welds"; and on 9 (al) "miss 2 welds." Aside from these tags there is no indication as to the number of bad welds on any machine or machines. 2. That during the period from August 14 to 19, other welders, particularly Carl Jones and Mac Jones, had machines rejected and were not discharged, given notices of disciplinary action, or reprimanded in any way. The record fails to show, however, either the nature or extent of the defective work involved in those instances. 3. That the personnel file of R. C. Avery, whom Respondent regarded as among the worst welders in the plant, and equally as bad as Chance, contains no "Notice of Disciplinary Action," and that when Avery was discharged on August 12, the reason given on his termination slip was "Absenteeism very bad, loosing too much time." 4. Conclusions regarding the discharge of Chance The issue here is determining Respondent's motive for discharging Chance. Determination of this issue is not, to borrow a phrase from Mr. Justice Frankfurter, "a problem in mensuration" (Kirschbaum v. Walling, 316 U.S. 517, 523). In such cases motive must be determined from all the surrounding facts and circumstances, no one factor being determinative. Giving full consideration to the entire record in this case, I find and conclude that the General Counsel has failed to prove by a preponderance of the evidence that Respondent discharged Chance for discriminatory reasons. "The testimony is uncontradicted that inspectors did not always use reject tags, but frequently marked the defects with a colored crayon. It is thus plain that the number of reject tags in an employees file does not fully reflect an employee's performance or the quality of his work. "Five of these were given in 1965, 13 in 1966; 5 in 1968 , and 6 are undated. "Three of these were given in 1965, 6 in 1966; 1 in 1967, and 4 are undated . There were none dated in 1968. "Eight of these were issued in 1965; one each in 1966, 1967, and 1968 and 7 are undated. "Sixteen of these are dated in 1965, 10 in 1966, 1 in 1967; 4 in 1968, and 8 are undated. BUSH HOG , INC. 819 In reaching this conclusion I start with the fact, basicly uncontroverted by the General Counsel, that Chance's work on August 13, was incredably bad, and absent other considerations, would plainly justify his discharge. I credit Howell's testimony that his inspection of the four machines on which Chance worked convinced him that such could be explained only by assuming that it had been performed by one with little experience in the field, or by one who was simply careless. As Chance had worked for Respondent as a welder for approximately 8 years, he was certainly not a novice in the art of welding, and on the basis of Howell's testimony I can only conclude that he was careless and indifferent to his work, and was in effect inviting discharge. Chance's remarks to Foreman Taylor, which he failed to deny, not only supports this conclusion, but also demonstrates that he regarded himself as immune from discipline because of his position in the Union and his activity on its behalf. Plainly, he enjoys no such immunity. Pinellas Paving Co., 132 NLRB 1923, 1932; A. J. Sackett and Sons, Co., 139 NLRB 1272, 1277, and the cases there cited. Respondent having established a prima facia case to support its claim that Chance was discharged for his poor work performance, the burden rested upon the General Counsel to establish the disparate treatment of Chance which he claimed to be the fact, and that Chance's poor work was not the real reason for his discharge. I find and conclude that the record fails to support the General Counsel's contention. It is true that in roughly the same period employee Avery got 10 more reject tags than Chance, and that one of these referred to 18 defective welds on four machines; that when Avery, whom Respondent claimed was as bad a welder as Chance, was discharged on August 12, the reason for the discharge was absenteeism, rather than bad work; that Carl Jones and Mac Jones, each had four or more machines rejected for defective welds on August 14, and that they were not reprimanded or disciplined in any way, but I do not regard this, under the circumstances of this case, as sufficient to establish by a preponderence of the evidence that Respondent's treatment of Chance was disparate. The most that can be said of this evidence is that it raises a suspicion, but suspicion is not an adequate substitute for proof by a preponderence of the evidence. My conclusion that the General Counsel has failed to prove disparate treatment of Chance is based on the following considerations: 1. The reject tags do not provide a proper basis for comparison of the work performance of the several employees. Admittedly the inspectors did not uniformly use reject tags and there is no basis in the evidence for determining or even estimating what portion of any employee's work is covered by reject tags. 2. Although the reject tags in evidence refer to "bad welding" or "poor welding" for the most part the reject tags do not refer to the number of defective welds on the particular machine or machines. As the plural was used, I assume the reject tags referred to more than one defective weld, and a few tags refer to 3, 4 or 5 defective welds. Even the tag most favorable to General Counsel's position - the one given Avery which refers to 18 defective welds on four machines - assuming that all four machines were produced the same day, is more than 100 percent better than Chance's record on August 14, when he had 44 defective welds on four machines. 3. There is no showing that Carl Jones, Mac Jones, Avery, or any other employee, received a "Notice of Disciplinary Action" as many as three times, as did Chance. 4. There is no showing that Carl Jones, Mac Jones, or Avery, the employees whom Respondent allegedly treated more leniently, were not union adherents. In fact what little evidence is in the record on that subject would indicate that Carl and Mac Jones were union adherents, for since August 30,'both have been on strike in support of the Union' s demands. Accordingly, for the reasons stated , I must and do find and conclude that the General Counsel has failed to prove by a preponderence of the evidence that Chance was discriminatorily discharged. 5. The 8(a)(5) allegations The complaint when issued alleged, in addition to a general refusal to bargain with the Union as the representative of the employees involved, that on or about September 2, Respondent (a) engaged in direct negotiations with employees in the unit, and (b) unilaterally promised and granted said employees increased benefits, including paid holidays and "drop" benefits, to discourage them from supporting the Union. The answer denied these allegations. To support the foregoing allegations, the General Counsel relied upon a written stipulation of the parties which, to the extent here material, establishes that on September 2, company representatives met with its drivers25 and during the meeting one driver asked why they were not receiving drop pay of $2 per stop for the first and second delivery stop, claiming it was the practice in the area for drivers to receive such compensation. Respondent's representatives promised to look into the matter. Thereafter, and commencing with the payroll period ending September 6, Respondent paid the drivers a fee of $2 per stop for the first and second delivery stop. There is no evidence in the record regarding the payment of increased holiday pay, or increased benefits of any other kind. At a later stage of the trial, while cross-examining Foreman Taylor, a witness called by Respondent, the General Counsel developed testimony that after the strike which began on August 30, Respondent raised the wage rate of at least some welders from $2.30 to $2.50 an hour. Taylor mentioned the name of three employees who had been so raised, and said there were others whose names he did not recall. The General Counsel's motion to amend the complaint to allege these wage increases to be violations of Section 8(a)(5) and (1) of the Act, and to allege that such conduct prolonged the strike, was granted. Respondent offered no testimony bearing upon this branch of the case. 6. Conclusions as to the 8 (a)(5) allegations Section 8(a)(5) of the Act imposes upon an employer the duty to bargain collectively with the majority representative of its employees, and this exacts "the negative duty to treat with no other ." Medo Corporation v. N.L.R.B., 321 U.S. 678, 684. This duty is breached when the employer without notice to or bargaining with the majority representative, unilaterally changes wages, hours, or other terms and conditions of employment. May Department Stores v . N.L.R.B., 326 U.S. 376; N.L.R.B. v. Katz, 369 U.S. 736. Such action is, in practical effect, bargaining with the employees individually, in derogation of the status of the majority representative to whom alone "The unit for which the Union is certified includes drivers. 820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the duty to bargain is owed. May Department Stores v. N.L.R.B., supra; N.L.R.B. v. Katz , supra. Indeed, the Katz case, supra, makes it clear that an employer violates Section 8(a)(5) of the Act, if he makes unilateral changes in wages, hours or working conditions without first bargaining to an impasse with the majority representatives, regardless of his motives in effectuating such a change . The record fully established - indeed it is not contend to the contrary - that Respondent, after refusing to bargain with the Union , unilaterally increased the compensation of the drivers and at least some of the welders. Accordingly, I must and do find and conclude that Respondent thereby violated Section 8 (a)(5) and (1) of the Act. 6. The character of the strike As stated above, certain employees struck Respondent's plant on August 30. The day before the strike a representative of the Union met with the employees to ascertain their wishes regarding strike action against Respondent because of its refusal to bargain with the Union which had been certified by the Board as the representative of the employees." According to the credited testimony of Chance, which in this regard stands undenied in the record , the strike resolution was unanimously adopted . As the Board has found that Respondent's refusal to bargain with the Union was unlawful - see Bush Hog, Inc., 173 NLRB No. 74 - and the strike was to protest such unlawful refusal to bargain, it necessarily follows that the strike which began on August 30, was caused and continues in effect by reason of Respondent's unlawful refusal to bargain, and that the striking employees, other than Roy Chance, who, as I have herein found was not discriminatorily discharged, are unfair labor practice strikers who are entitled, upon their unconditional offer to return to work, to reinstatement to their former or substantially equivalent jobs, displacing, if necessary, any replacements hired on or after August 30 . Dino Boutiques , Inc., 173 NLRB No. 174." Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is an employer within the meaning of Section 2(2) of the Act, and 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. At all times since June 14, 1968, the Union has been the duly certified exclusive collective bargaining representative of Respondent 's employees in a unit of "All production and maintenance, shipping and receiving "According to Chance another reason advanced for striking Respondent was that it had discriminatorily discharged him, the president of the Local Union, and that the employees voted to make that one of the reasons for the strike. The picket signs initially carried referred to the firing of the Union president and the refusal to bargain as the reasons for the strike. After about 2 weeks the picket signs referred only to the refusal to bargain. Having found as herein set forth, that Chance's discharge was not discriminatory, it follows that his discharge could not make the strike an unfair labor practice strike. "Because it is unnecessary to a determination of the reinstatement rights of the strikers, I make no finding as to whether Respondent's unilateral action herein found, all of which occurred after the strike began , prolonged the same. employees at its Selma, Alabama, plant, including truckdrivers, but excluding all office clerical employees, watchmen and/or guards and supervisors as defined in the Act," a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9(b) of the Act. 4. By unilaterally changing the wages , hours, and conditions of employment of its employees in the aforesaid unit, without notice to or bargaining with the Union as the collective bargaining representative of said employees , as found in section IB3 hereof, Respondent refused to bargain with the Union as such collective bargaining representative , and thereby violated, and continues to violate Section 8 (a)(5) and (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. The strike by Respondent's employees, which began on August 30, was caused and continues in effect because of Respondent' s refusal to recognize and bargain with the Union as the certified bargaining representative of the employees involved. 7. The General Counsel has failed to prove by a preponderence of the evidence that Respondent independently interfered with, restrained or coerced its employees in the exercise of their Section 7 rights, or that it discriminatorily discharged Roy D. Chance, and the allegations of the complaint in those respects should be dismissed. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it be required to cease and desist therefrom and take certain affirmative action designed and found necessary to effectuate the policies of the Act. Having found that Respondent by unilaterally changing wages, hours and terms and conditions of employment of its employees in the appropriate unit , without bargaining with the Union as their sole collective bargaining representative, violated and continues to violate Section 8(aX5) and (1) of the Act, I shall recommend that Respondent be required, upon request, to bargain with the Union concerning such matters and, if an understanding is reached , embody the same into a written signed agreement. 3$ Having also found that the strike of Respondent's employees which began on August 30, was caused and prolonged by Respondent's refusal to bargain with the Union and was, therefore, an unfair labor practice strike, I shall in accordance with Board policy, recommend that upon the unconditional offer of the strikers to abandon their strike and return to work, Respondent shall offer each of them, except Chance, reinstatement to their former or substantially equivalent employment, dismissing, if necessary, any person hired on or after August 30, and make each such striker whole for any loss of pay suffered by reason of Respondent's failure, if any, to reinstate him within 5 days after application, to the date of Respondent's offer of reinstatement , by paying to such striker a sum of money equal to the wages he "As the specific conduct here found violative of the Act is of a different nature from that considered by the Board in Bush Hog, Inc., 173 NLRB No. 74, an affirmative order in this proceeding will effectuate the policies of the Act and is, as the Board has held , appropriate notwithstanding the prior bargaining order . Rish Equipment Company, 173 NLRB No. 136, and cases there cited. BUSH HOG, INC. 821 normally would have earned during said period , less his net earnings during that period , in accordance with the Board's formula set forth in F. W. Woolworth Company, 90 NLRB 289, with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716.1' RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law and the entire record in the case , and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the National Labor Relations Board order, Bush Hog, Inc., Selma, Alabama, its officers, agents, successors, and assigns, to: 1. Cease and desist from: (a) Refusing, upon request, to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive bargaining representative of a unit composed of "All production and maintenance , shipping and receiving employees at its Selma, Alabama, plant, including truckdrivers, excluding all office employees , watchmen and/or guards and supervisors as defined in the Act." (b) Granting wage increases to, or otherwise altering the wages, hours, or other terms and conditions of employment of any employee in the aforesaid unit, without prior notification to, consultation with, and, if requested , bargaining with the aforementioned Union concerning the same , but nothing herein shall be construed as requiring it to withdraw , change or abandon any of the terms and conditions of employment currently enjoyed by its employees. (c) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their right to self-organization , to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 2. Take the following affirmative action designed and found necessary to effectuate the policies of the Act: (a) Upon request bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the aforementioned unit, with respect to rates of pay, wages, hours of employment , and other terms and conditions of employment, and, if an understanding is reached, embody the same into a signed agreement. (b) Upon unconditional application, offer immediate, full and unconditional reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges , to all those employees who were on strike on August 30, 1968, or thereafter, dismissing, if necessary , any person hired on or after that date, and make each such striker whole for any loss of pay suffered by reason of Respondent's refusal, if any, to reinstate him beginning 5 days after their "It is the established policy of the Board to require reinstatement of strikers upon their unconditional application where a strike caused or prolonged by an employer 's unfair labor practices is still in progress, and as a part of such prospective remedial order to require a Respondent to make striking employees whole for any loss or pay occasioned by its failure to comply with an order requiring reinstatement within 5 days of the employees' unconditional application . Dino Boutiques, Inc., 173 NLRB No. 174, fn 1. application, to the date of Respondent's offer of reinstatement. (c) Notify each employee referred to in the preceding paragraph hereof 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. (d) Post at its plant in Selma, Alabama, copies of the attached notice marked "Appendix."70 Copies of said notice, on forms furnished by the Regional Director of Region 15 of the Board (New Orleans, Louisiana), shall, after being duly signed by an authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the aforesaid Regional Director, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply herewith." IT IS FURTHER ORDERED, that the complaint herein, to the extent that it alleges that Roy D. Chance was discriminatorily discharged, and that Respondent independently interfered with statutory rights of employees, be, and the same is dismissed. "In the event this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." "In the event this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the aforesaid Regional Director, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to The Recommended Order of a Trial Examiner of The National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in a unit composed of "All production and maintenance, shipping, and receiving employees at our Selma, Alabama, plant, including truckdrivers, but excluding all office clerical employees, watchmen and/or guards and supervisors as defined in said Act, and if an understanding is reached, embody the same into a written signed contract. WE WILL NOT grant wage increases to, or otherwise alter the wages, hours or other terms and conditions of employment of any employee in the aforesaid unit, without prior notification to, consultation with, and if requested, bargaining with the aforesaid Union concerning the same , but this does not require us to withdraw or change the wages, hours or working conditions presently enjoyed by any employee. WE WILL NOT, in any like or related manner interfere with, restrain or coerce our employees in the 822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining, or to refrain from any and all such activities. We WILL, upon unconditional application, offer immediate, full and unconditional reinstatement to their former or substantially equivalent positions , without prejudice to their seniority or other rights and privileges, to all those employees who were on strike on August 30, 1968, or thereafter, dismissing, if necessary, any person hired on or after that date , and make such applicants whole for any loss of pay suffered by reason of our refusal, if any, to reinstate them beginning 5 days after their application to the date of our offer of reinstatement, in accordance with the Board's usual formula. We WILL notify all those employees presently serving in the Armed Forces of the United States, if any, 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. All our employees are free to become or refrain from becoming members of United Steelworkers of America, AFL-CIO, or any other union , or not to become or remain a member of any union. Dated By BUSH HOG, 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola) 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 504-527-6391.