American Seating Co. of Mississippi

850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD American Seating Company of Mississippi and Millmen Local Union 2604, United Brotherhood of Carpenters and Joiners of America, AFL-CIO Case 26-CA-3053 June 20, 1969 DECISION AND ORDER BY MEMBERS BROWN, JENKINS, AND ZAGORIA On December 11, 1968, Trial Examiner Fannie M. Boyls issued her Decision in the above-entitled proceeding, finding that 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 further found that the Respondent had not engaged in other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed . Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. We do not agree with our dissenting colleague's interpretation of the facts regarding Respondent's withdrawal of two proposals in the negotiation meeting of April 8, and we note further that the Trial Examiner's finding of a refusal to bargain has a much broader basis than that discussed by our colleague . In finding the refusal to bargain , the Trial Examiner stated: I find that Respondent by withdrawing , without good cause, terms of a proposed contract to which it had tentatively agreed , by conditioning its continued acceptance of one term of the contract to which it had tentatively agreed upon a submission for ratification to all employees in the bargaining unit, and by continuously questioning the authority of the bargaining committee to agree to proposals it made and seeking to control the procedure by which the Union delegated or authorized its bargaining representatives to act, has failed and refused to bargain in good faith with the Union, in violation of Section 8(a)(5) and (1) of the Act. As detailed more fully by the Trial Examiner, at the April 8 meeting, and after some 5 months of bargaining, Respondent's counsel conditioned its making a firm offer on the Union committee's submission of the offer to the full membership; questioned how many employees were present at the union meeting on March 13 where the employees voted to accept the offer of February 12; asked the Federal mediator to ascertain whether the union bargaining committee had the authority it claimed; stated that he did not believe the union committee had the authority to sign the agreement ; proposed a poll of employees to ascertain their wishes as to lunch period and breaks, a proposal then under discussion . By Respondent's continued insistence on submitting changes in contract proposals to a referendum of employees , it was subverting the authority and status of the bargaining representative and intruding into the internal affairs of the Union and its relationship to its members.' Nor can we accept our colleague's characterization that Respondent was merely seeking a quid pro quo when it withdrew its proposals for increased insurance benefits because the union committee would not agree to recommending acceptance of Respondent's proposals. With respect to this item of insurance, the Respondent and the Union had tentatively agreed upon the Union's proposal for increased insurance benefits at the bargaining meeting of January 16, 1968 , and the benefits had not been conditioned upon any action by the union bargaining committee. It is with this background in mind that Respondent's subsequent conditional offer and its withdrawal of increased insurance benefits must be viewed. Moreover, Respondent's withdrawal occurred after it knew that at a union meeting of March 13, employees had voted to accept Respondent's proposals, including the increased insurance benefits. Thus, in bargaining sessions prior to April 8, 1968, Respondent was willing to grant an increase in insurance benefits, but when an agreement appeared imminent, Respondent reneged on its prior tentative approval . All of the parties were well aware of the fact that the increase in insurance benefits was of great importance to the employees. Respondent's actions in withdrawing the agreed-upon proposal regarding the change in the lunch period and an addition of a 10-minute break in the afternoon also belies its contention that it was bargaining in good faith. In this regard , Respondent insisted that the proposal be voted upon by either employees within the unit or union members, attempting to justify such insistence by its concern for employee morale. However, as we view the overall bargaining picture at this point, two inconsistencies with Respondent's argument are 'N.L.R.B. v. Wooster Division of Borg- Warner, 356 U.S. 342 at 349-350; North Country Motors, Ltd., 146 NLRB 671, 674. 176 NLRB No. 118 AMERICAN SEATING CO. OF MISS. 851 readily apparent . One is that it was with the union bargaining committee that . Respondent was obligated to negotiate, and not with individual employees. And secondly, in attempting to be the guardian of employee morale by insisting on a vote of employee wishes, Respondent as we previously noted was subtley undermining the authority of the duly constituted bargaining agent and intruding into the affairs of the employees' relationship with their bargaining agent. The fact that the parties subsequently reached an agreement after the Union filed a charge and the Board issued a refusal-to-bargain complaint, does not in any way change our conclusions that Respondent did not bargain in good faith prior to the invocation of the Board's processes . Therefore, we find, in agreement with the Trial Examiner , that Respondent's conduct was inconsistent with its obligation to bargain in good faith, and violated Section 8(a)(5) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, American Seating Company of Mississippi, Tupelo, Mississippi, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. MEMBER ZAGORIA, dissenting: In my view, Respondent's conduct at the April 8 meeting did not constitute a refusal to bargain in good faith. The Trial Examiner, in finding the violation, relied primarily on two aspects of Respondent's conduct: One concerning a proposal made earlier with regard to insurance benefits, the other concerning employees' break and lunch periods. As to the first, the record shows that the union membership had earlier rejected two contracts offered by Respondent. At the parties' 10th bargaining session on February 12, Respondent stated it would offer increased insurance benefits if the union committee would recommend acceptance of Respondent's last proposals to its membership.' The union committee flatly refused to do so. In my view, Respondent was within its rights in not renewing its offer for this increase at the April 8 bargaining meeting, as the requested quid pro quo had not been forthcoming. As for the change in lunch and break periods, Respondent at a previous meeting had tentatively 'Respondent had never before included increased insurance benefits as part of its own proposal. As the majority indicates, Respondent had, towards the conclusion of the January 16 bargaining session, tentatively agreed to the Union's proposal for increased benefits, but at that time a number of other issues remained unresolved . When the Union negotiators took Respondent's offer of January 16 to the membership, it was rejected. The conditional offer referred to above came at the very next bargaining session, on February 12. agreed to a change requested by the Union. Thereafter, employee Lambert, a former member of the negotiating committee, advised the Employer that a majority of the employees preferred the current lunch and break periods, and gave a plausible reason for their position . At the April 8 meeting, therefore, Respondent asked the Union to find out what the employees wanted. When the Union refused to do so, Respondent stated it would now offer only a continuation of the current practice regarding lunch and break periods.' In my view this also was a permissible position for the Respondent to take, in the circumstances. The majority adverts to several statements made by Respondent's negotiators, questioning whether the Union's representatives had the authority to agree to a contract without securing the approval of the membership. While I agree that in some circumstances this type of question might reveal bad faith on the part of the party who asked it, I cannot agree that such a conclusion is warranted here. The parties held numerous bargaining sessions, and concessions were made by both sides. The procedure referred to by Respondent, that the union negotiators take proposals back to the membership for approval, was in fact the one practiced by the union negotiators in previous meetings . At least in one instance, the Union went back to its membership at the request of the Federal mediator. Respondent's proposals had been twice rejected by the membership, and it seems natural that Respondent might inquire into whether the membership would not have to approve any other proposal it might make . At no point did Respondent insist to the point of impasse that the Union follow one procedure rather than another. The parties finally reached agreement on July 24, 1968, and executed a signed contract. I am unwilling to say that these circumstances are sufficient to support a finding of bad faith bargaining. Since I would find, contrary to the Trial Examiner, that Respondent did not violate the Act in the aforementioned respects, I would not find the 10-day strike commencing April 9 to have been an unfair labor practice strike. I would remand to the Trial Examiner for a determination of certain of the strikers' rights to reinstatement under the Laidlaw' case, an issue not reached by the Trial Examiner. 'No impasse was reached at this meeting, since the union representatives agreed to submit the Employer's last proposals to the union membership on the following Friday, April 12. The Laidlaw Corporation. 171 NLRB No. 175. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE FANNIE M. BOYLS, Trial Examiner: This case was tried before me at Tupelo, Mississippi, on July 31 and August 1 and 7, 1968 . The complaint, which was issued on June 27, 1968 and amended on August 1, 1968, is based upon a charge filed on April 11, 1968, and an 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD amended charge filed on May 22 , 1968, by Millmen Local Union 2604, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, alleging that Respondent, American Seating Company of Mississippi, had engaged in unfair labor practices within the meaning of Section 8 (a) (5), (3 ), and (1) of the Act. Respondent filed an answer, denying that it had engaged in any of the unfair labor practices alleged . After the conclusion of the hearing both counsel for the General Counsel and for Respondent filed helpful briefs. Upon the entire record , upon my observation of the witnesses and their demeanor as they testified, and upon a consideration of the briefs of the parties, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Mississippi corporation , having an office and place of business at Booneville , Mississippi, where it is engaged in the manufacture of church furniture . During the 12-month period preceding the issuance of the complaint, Respondent, in the course and conduct of its operations , purchased and received at its Booneville plant materials and supplies valued in excess of $50,000 directly from points located outside the State of Mississippi and, during the same period , it sold and shipped products valued in excess of $50,000 directly to points located outside the State of Mississippi. On the basis of these facts, which are admitted , I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act and that it will effectuate the policies of the Act to assert jurisdiction herein. II. THE LABOR ORGANIZATION INVOLVED It is admitted and I find that Millmen Local Union 2604, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES ALLEGED A. Issues Following the certification of the Union on October 27, 1967, as bargaining representative of Respondent's employees in an appropriate bargaining unit, Respondent and the Union met upon numerous occasions in collective bargaining negotiations.' It is the General Counsel's contention that Respondent, in a number of respects, unlawfully refused to bargain with the Union at the 11th bargaining conference held on April 8, 1968 , that this refusal to bargain caused a strike which occurred on April 9, and that on April 19, when the strike was called off and all the employees unconditionally offered to return to work, Respondent unlawfully denied reinstatement to 15 of the strikers whose jobs had been filled during the strike. As an alternative theory, the General Counsel alleges that even if the strike be considered an economic rather than an unfair labor practice strike, Respondent nevertheless violated Section 8(a)(3) of the Act by failing to reinstate some of the 15 replaced strikers to jobs of the replacements which became available subsequent to the date the strikers applied for reinstatement . There is little dispute as to the essential facts . The principal issue is whether Respondent's conduct at the bargaining table on and after April 8, 1968, constituted a refusal to bargain in good faith within the meaning of Section 8(aX5) of the Act. B. The Evidentiary Facts 1. Negotiations prior to the April 8, 1968, bargaining session Following the Union's request for bargaining on November 13, 1967, Respondent and the Union met in numerous bargaining sessions, with a Federal Mediator attending after the first three or four meetings. At the conclusion of the sixth meeting held on December 15, 1967, after the parties had been unable to agree upon a package proposal submitted by the Union, Respondent, through its chief negotiator and counsel, James E. Price, suggested that its last proposal be submitted to the union membership with a recommendation for its acceptance. The Union's chief negotiator, International Representative W. J. Smith , replied that a union meeting would be scheduled for that night and that Respondent's proposals would be submitted to the meeting but that he would not recommend their acceptance . After Respondent's proposals were rejected by the union membership, further bargaining sessions were held. Toward the conclusion of the ninth bargaining conference on January 16, 1968, Respondent and the Union had tentatively agreed upon the Union 's request for increased insurance benefits but were still unable to reach an agreement on a number of other terms of an agreement. Union Negotiator Smith told Respondent's representatives that he would submit Respondent's last proposals to a vote of the union membership.' At a union meeting held on January 26, the union membership voted to reject Respondent 's latest offer and authorized a strike to be called but without setting a date for its commencement . Union Vice President Taylor informed Respondent's plant manager, Booth , of the vote of the membership shortly thereafter. A 10th bargaining conference was held on February 12. Respondent promised to furnish and later did furnish certain information requested by the Union but offered no new contract concession to the Union . During the meeting Respondent stated that it was conditioning its offer of the increased insurance benefits tentatively offered at the previous bargaining session upon the union committee's recommending acceptance of Respondent 's last proposals to its membership. The union committee stated that it would not make any such recommendation . In this last offer, aside from the insurance benefits , the parties were in disagreement as to wages, the duration of the contract, time and a half pay for all hours worked over 8 hours per day, working supervisors and Respondent's right to subcontract. On March 13, the Union had a special meeting at which the membership voted to accept Respondent's last 'The unit found to be appropriate in the representation proceeding consisted of all production and maintenance employees, including yard employees and plant clericals at Respondent's Booneville, Mississippi, plant, excluding all office clerical employees , professional and technical employees, guards and supervisors as defined in the Act. 'The Union's proposal regarding insurance benefits , which Respondent tentatively accepted , would have increased the current rate for a hospital room from $ 10 to $15 a day and the current payment for surgical benefits from $200 to $300. AMERICAN SEATING CO. OF MISS. 853 proposals, including the proposal for increased insurance benefits.' On March 14, Union President Clyne Wilemon and two other members of the Union' s negotiating committee (but not including the Union's chief negotiator, W. J. Smith) met with Plant Manager Booth and Personnel Manager Jimmy Smith. They told Respondent's representatives that they wanted a meeting to sign a contract, to discuss the wage increase which went into effect on February 1, 1968, insurance benefits and a further wage increase . Booth told the committee members that no contract could be signed until all issues had been resolved and that negotiations would have to proceed, as in the past, through the regular negotiating committees. He promised to get in touch with Respondent's chief negotiator and attorney, James E. Price, and set up a meeting. 2. The April 8, 1968, bargaining session A bargaining meeting was arranged for April 8. At this conference, Respondent's chief negotiator, Price, presented a draft of an agreement containing all the provisions which Respondent had been willing to agree to at the February 12 meeting, except the provision for increased insurance benefits. After supplying some information previously requested by the Union in regard to the wage increases put into effect on February 1, and some discussion of those increases shown in an appendix to the proposed contract, Price announced that one of the employees, Lambert, had told Plant Manager Booth that a majority of the employees preferred to eliminate the afternoon break (to which Respondent had theretofore tentatively agreed) and continue the current practice of having lunch at noon , instead of at 11:30 a.m . as provided in the contract proposal, because some of them had wives with whom they wished to continue having lunch. Price expressed the desire to abide by the choice of the majority of the employees in the unit regarding this matter. Union Representative Smith informed Respondent's representatives that Lambert was no longer a member of the Union' s negotiating committee and had no authority to propose a change in any contract provision. Price then told the union committee that Respondent was withdrawing from the proposed contract which Respondent had just submitted, the shift preference provision (art. XIV, sec. 7, G. C. Exh. 2), explaining that Respondent realized that it had made a serious mistake in making this proposal because it could end up with all the older and more experienced employees being on the first shift. Union Representative Smith protested that the Union had already voted to accept Respondent's proposed offer of a contract made at the last bargaining session and that Plant Manager Booth had been informed of this vote. Price then questioned Union President Wilemon about when the union meeting had been held and what he had told Booth, and Wilemon stated that the meeting had been held on the night before the conference with Booth and that he had informed Booth of the Union's desire to meet with management representatives to sign the contract and discuss an increase in wages and two other items. Price asked how many employees had been present when 'At the hearing Respondent sought to prove that this meeting was not called pursuant to the provisions of the. Union's constitution. For the reasons stated by the Board in North Country Motors, Inc., 146 NLRB 671, 674, it is immaterial to the issues in this case whether the Union's constitution was complied with. the vote to accept the proposed contract had taken place. Smith refused to divulge this information or to permit Wilemon to do so and told Price that it was none of his business. Price stated that legally no agreement had been reached because the union membership had twice voted to reject Respondent's last proposals and this rejection had legally terminated Respondent's offer until it was renewed. Price said that he would renew the offer but only with some modifications and that if the union bargaining committee would submit Respondent's new proposals to a vote of the union membership, Respondent would make the Union a firm offer for a binding contract . Union Representative Smith stated that he would not call a meeting for such a vote and insisted that the union bargaining committee had authority to sign and was willing and wanted to sign the contract which Respondent had proposed at the prior meeting. This proposed contract, except for the insurance provision, was the same as the written proposed contract delivered to the union representatives at the commencement of the April 8 meeting. Price then asked the Federal Mediator to ascertain whether the union bargaining committee had the authority it claimed. Following private conferences between the mediator and both parties , the meeting resumed. Price stated that he did not believe that the union committee had the authority to sign the agreement without another vote of the membership; that he had four modifications of the proposed contract in mind but that if the Union would submit Respondent's prior proposals with two modifications - elimination of the shift preference provision and an elimination of the afternoon break - Respondent would forego the other modifications. Smith did not agree to this proposal. Price then proposed a poll of all the employees in the unit (Union as well as nonunion) to ascertain their preference as to the lunch period and breaks and stated that Respondent would abide by the decision of a majority of all the employees. Smith refused to agree to any such poll of all the employees in the unit. Respondent thereupon withdrew its written offer of a lunch period at 11:30 a.m . and a 10-minute afternoon break in addition to the customary morning break and offered only a continuation of its current practice of a noon lunch period and a single break in the morning . Price then asked if Smith would submit to a "secret" vote either of all the employees in the unit or to the union membership Respondent's prior proposal with the elimination of the shift preference and a continuation of Respondent's current practice as to the morning break and lunch period. Smith asked for a recess. Following a 40-minute recess, Smith proposed that at a special union meeting to be called by Union President Wilemon for April 12, he would submit for a vote of the union membership their preference as to the lunch period and break periods and Respondent's proposal for a contract with the shift preference eliminated . Respondent refused to agree to this proposal . Price stated in his affidavit, "I did not give the Union at this time a choice on the lunch period, because Smith would not let all the employees vote on it." Price stated, however, that Respondent would make the Union a firm offer of a contract based on the last written proposal (which eliminated the provision for increased insurance benefits) with the elimination of the afternoon break and shift preference if Smith would submit that proposal to the union members. Price added that this was Respondent's best and final offer. Smith agreed to hold a union meeting 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for that purpose on the following Friday, April 12, but stated that he was sure the membership would not accept Respondent's last proposals.' 3. The strike On the following day, April 9, during the lunch period, Union President Clyne Wilemon reported to a group of employees with whom he was lunching about what had occurred at the bargaining session on the preceding day. He told them that Respondent had taken from its previous contract offers the provision for shift preferences, the increased insurance benefits and the afternoon break. 'About 40 employees participated in the discussion. Finally, when one of the employees asked what should be done about this situation , Wilemon replied that they would either have to accept Respondent's terms or go on strike . The employees' decided , after an informal voice vote, to go on strike at 1:30 that afternoon. The employees walked out at the appointed time. The strike was terminated on April 19, when all the strikers made an unconditional offer to return to work. All except 15 of them, whose jobs had been filled by replacements during the strike, were reinstated. 4. Subsequent negotiations resulting in a signed contract on July 24, 1968 The next bargaining conference was held on April 25. After a discussion of the reinstatement of the strikers, Union Representative Smith offered to sign the Company's last proposed contract with the increased insurance benefits, two breaks, a noon lunch and a shift preference clause . Price asked Smith if the union members had authorized the committee to sign such a contract and told him that Respondent was willing to consider this offer if the bargaining committee had authority to make such an offer, but that the contract would be with the local, not the committee, and had to be binding. Smith did not reply as to the committee 's authority but repeated that the committee would sign such a contract. After consulting with the mediator, Price stated that Respondent would like a recess in which to prepare a firm proposal in which Respondent might or might not include all the Union's terms except the shift preference clause. He added, however, that Respondent' s proposal "would have to be submitted to a vote of the union members since it would not be identical with the committee's alleged authority." Smith then agreed to give Price a week in which to submit this proposal. The parties thereafter held two more bargaining conferences and a contract was finally executed on July '1n his affidavit, Price indicates that Smith offered to sign Respondent's proposed contract with the elimination of the shift preference and afternoon break provisions if the contract provided for a 12 minute instead of the current 10-minute morning break ; that Price said that he would agree to this only if the proposal was submitted to the union membership; and that Smith agreed to submit it. I am satisfied , however, from the testimony of Smith and Booth , that Smith never offered to sign any contract which eliminated the insurance benefits proposal and that the proposal to be submitted to the union membership was as described above in the text. Other than just mentioned, there is no substantial dispute as to what occurred at the bargaining sessions. The above findings are based upon statements made in the affidavit of Respondent 's attorney and chief negotiator, as supplemented and clarified by the testimony of Respondent's plant manager and of the Union's chief negotiator, who refreshed his recollection on the witness stand from notes which he had made during the course of the bargaining. 24, 1968. The contract included a provision for the same lunch and break periods as those contained in the proposed written contract submitted by Respondent at the commencement of the April 8 conference, a modified shift preference clause, and a provision increasing insurance benefits from $10 to $18 a day for a hospital room and from $200 to $350 for surgical benefits. Respondent offered this increase in insurance benefits in an amount even greater than it had conditionally offered on January 16 after the Union agreed with Respondent that Respondent's product draftsmen and billers should be considered technical employees and excluded from the bargaining unit. 5. Analysis and conclusions a. The refusal to bargain The General Counsel contends initially that Respondent violated Section 8(aX5) of the Act by refusing on April 8, 1968, to reduce to writing and sign a collective bargaining agreement, the terms of which had been agreed upon by the parties. This contention must be rejected for two reasons . In the first place, as Respondent points out, under recognized principles of contract law, Respondent's offer made at the February 12 bargaining conference was terminated by the action of the union bargaining representatives at that meeting in rejecting Respondent's offer . In the second place , even if the offer be considered as having continued in effect, it does not appear that the Union thereafter clearly and unconditionally accepted the offer made by Respondent prior to the time Respondent apprised the Union negotiators on April 8 of the modifications Respondent desired . On March 14, when the employee members of the union bargaining committee told Plant Manager Booth that the union committee was ready to accept Respondent's last offer, they requested a meeting between Respondent's and the Union's representatives, not only for the purpose of signing a contract, but also of discussing improved insurance benefits and alleged inequities in the wage increases granted by Respondent in February 1968 - matters which apparently would have required some further bargaining before all terms of the proposed contract were agreed upon. My conclusion that Respondent did not on April 8 refuse to sign a contract whose terms on that date had been mutually agreed upon does not, however , dispose of the question whether Respondent failed to bargain in good faith on that date, as alleged in the complaint . The Board aptly stated in Shannon and Simpson Casket Co., 99 NLRB 430, 436, enfd. 208 F .2d 545 (C.A. 9): . . . the rules by which it is determined whether the parties have made a contract are not the rules by which it is determined whether or not the parties have bargained in good faith . . . . The obligation under the Act contemplates that the parties come to the bargaining table with a fair and open mind and a sincere desire and purpose to conclude an agreement on mutually satisfactory terms . Reliance upon the rules of contract law so as to forestall and avoid agreement does not satisfy that obligation. I am constrained to conclude upon all the evidence that Respondent did not on April 8 approach the bargaining table with a fair and open mind and a sincere desire and purpose and to conclude an agreement on mutually satisfactory terms. Respondent knew that the union AMERICAN SEATING CO. OF MISS. 855 membership had on January 26 authorized its bargaining committee to call a strike rather than accept the terms then proposed by Respondent as its last offer but that the bargaining committee had not done so . It must have been apparent to Respondent that by April 8 the Union was hoping to avoid strike action by accepting contract proposals substantially the same as those proposed by Respondent at the January 16 and February 12 bargaining conferences . Instead of cooperating to conclude an agreement and avoid strike action , however, Respondent proceeded to withdraw from its contract proposals three important provisions to which it had previously tentatively agreed . One of these provisions was the one calling for an increase in insurance benefits from $ 10 to $15 a day for a hospital room and from $200 to $300 for surgery. Respondent never assigned any reason for its unwillingness on April 8 to grant this benefit which it had been willing to grant on January 16 and February 12. The fact that on July 24, when a contract was finally executed, Respondent agreed to an even greater increase in these insurance benefits ($ 18 for a hospital room and $350 for surgery) warrants the inference that on April 8 Respondent was not really opposed to granting the lesser increases . Whatever may be said for Respondent's legal right to do so under principles of contract law, its action clearly tended to forestall and avoid the reaching of a mutually satisfactory agreement . The withdrawal of this offer at this late and critical stage of the bargaining process, without any attempted justification , was, in my view, inconsistent with good faith bargaining. Another tentative proposal which Respondent withdrew on April 8 was that relating to shift preference. It is understandable that Respondent could in good faith have wanted to withdraw this proposal for the reason explained to the Union, its fear that operating under that provision might result in all of its older and experienced employees working on the first shift, leaving other shifts inadequately staffed. The Union apparently recognized the reasonableness of Respondent's position in this respect and agreed in the final contract to a modification of the shift preference provision to protect Respondent against the eventuality it feared . Accordingly, no inference of bad faith is drawn from Respondent's proposed elimination of the shift preference provision. The other tentative proposal which Respondent withdrew on April 8 , was that providing for a change in the lunch period from noon to 11:30 a.m. and the addition of a 10-minute break in the afternoon in addition to the morning break already given the employees . The position taken by Respondent in regard to this provision, in my view, was clearly inconsistent with its obligation to bargain in good faith . Respondent's withdrawal of its previous offer regarding this matter was based , not upon any detriment to itself, but solely upon the union bargaining committee's refusal to submit to a referendum of all employees in the bargaining unit the question whether they desired the proposed change . The procedure to be followed by the employees' chosen bargaining representatives in determining whether to accept or reject an employer proposal is not a mandatory subject of bargaining under the statute . The mandatory subjects consists only of "wages, hours, and other terms and conditions of employment" (Section 8 (d) of the Act). The question whether or not the bargaining representatives shall seek an advisory vote of the employees or even of the union membership settles no term or condition of employment . In an analogous situation where a ballot provision for strike authorization was sought by the employer, the Supreme Court stated in N.L . R.B. v. Wooster Division of Borg-Warner , 356 U .S. 342, 349-350: The "ballot" clause . . . deals only with the relations between the employees and their unions. It substantially modifies the collective bargaining system provided for in the statute by weakening the independence of the "representative" chosen by the employees. It enables the employer, in effect, to deal with its employees rather than with their statutory representative. To be sure, there was nothing unlawful in Respondent calling to the attention of the bargaining committee the fact that there might be some question as to whether a majority of the employees preferred its tentatively proffered afternoon break and earlier lunch period to the current practice of a noon lunch period without the afternoon break , and there was also nothing unlawful in Respondent's mere request that a vote of all employees be taken on this subject . It was Respondent's insistence on the employee vote when objected to by the Union and its withdrawal of a provision to which it had theretofore tentatively agreed because of the:Union's refusal to submit such a referendum which made Respondent's conduct vulnerable . By thus conditioning its continued willingness to grant the lunch and break period offer contained in its proposed contract, Respondent was subverting the authority and independent status conferred by the Act on the duly designated bargaining representative and intruding into the internal affairs of the Union and its relationship with its constituents . This conduct was inconsistent with Respondent's obligation to bargain in good faith with the Union. N.L.R.B. v. Corsicana Cotton Mills, 178 F.2d 344, 347 (C.A. 5); Roesch Transportation Company, 157 NLRB 441, 446; N.L.R.B. v. Darlington Veneer Co., 236 F .2d 85, 88 (C.A . 4); Houchens Market v. N.L.R .B., 375 F.2d 208 (C.A. 6); San Antonio Machine and Supply Corp. v. N.L.R.B, 363 F.2d 633, 636 (C.A. 5). Even aside from Respondent's insistence on ratification by all the employees of the lunch and break period provision of its proposed written contract, Respondent, as the General Counsel points out, in other ways at the April 8 and a subsequent bargaining conference , acted in derogation of the Union's authority as the employee's bargaining agent . On April 8 as well as at the next bargaining conference on April 25, Respondent questioned the Union' s bargaining authority and sought to intrude into and itself control internal affairs of the Union. Thus, on April 8, after Union Representative Smith stated that the bargaining committee was ready to sign a contract containing the terms offered by Respondent at the previous bargaining conference on February 12, Price stated that he did not believe the bargaining committee had authority to sign such a contract . At one point he questioned both Smith and Wilemon as to the number of employees who had attended the March 13 special union meeting, at which the union membership voted to accept Respondent's latest proposed contract . Respondent offered at the April 8 meeting to make a firm offer of a contract only if the bargaining committee would submit Respondent's proposals to the union membership for a vote . At another point Price requested that the referendum on Respondent's proposal be by "secret" vote of all employees or of the union members . Again at the April 25 bargaining conference when Union Representative Smith made a proposal for a contract which the bargaining committee would be willing to sign, Price questioned the bargaining committee 's authority to 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sign and said that any proposal acceptable to the Respondent would have to be approved by the union membership. As stated by the Board in North Country Motors, Ltd., 146 NLRB 671, 674: The Act imposes no obligation upon a bargaining agent to obtain employee ratification of a contract it negotiates in their behalf. In a case such as this a requirement for ratification could only have been one which the Union itself assumed . It was thus for the Union, not for the Respondent, to construe the meaning of the Union's internal regulations relating to ratification. It is no defense to Respondent 's unlawful intrusion into the Union's internal affairs that the Union upon occasions gave in to Respondent's demands and did submit the proposals to a vote of the union members or that the designated bargaining representatives either voluntarily or pursuant to internal union regulations (about which the record is silent) may have sought an advisory note of the union membership on various employer proposals.' Respondent's insistence upon this procedure unquestionably frustrated and prolonged the bargaining negotiations. I find that Respondent by withdrawing , without good cause, terms of a proposed contract to which it had tentatively agreed, by conditioning its continued acceptance of one term of the contract to which it had tentatively agreed upon a submission for ratification to all employees in the bargaining unit, and by continuously questioning the authority of the bargaining committee to agree to proposals it made and seeking to control the procedure by which the Union delegated or authorized its bargaining representatives to act , has failed and refused to bargain in good faith with the Union , in violation of Section 8(aX5) and (1) of the Act. b. Conclusions respecting the strike As already noted , the employees went on strike on April 9 because of Respondent's withdrawal of proposals previously made to increase the insurance benefits, to provide for shift preferences and to grant an afternoon break . Since it has been found that Respondent's withdrawal of its tentative offer of increased insurance benefits and the afternoon break constituted an unfair labor practice , it follows that the strike was caused in substantial part by such unfair labor practice. The strikers, accordingly , were entitled to reinstatement upon their unconditional offers to return to work on April 19. By refusing to reinstate the 15 strikers listed in Appendix A for whom Respondent had hired replacements during the strike, Respondent engaged in an unfair labor practice within the meaning of Section 8 (aX3) and (1) of the Act. ' CONCLUSIONS OF LAW 1. All production and maintenance employees, including yard employees and plant clericals at Respondent's Booneville, Mississippi plant, excluding all office clerical 'Here, as in Mc Quay-Norris Mfg. Co. v. N.L.R.B.. 116 F.2d 748, 751-752 (C.A. 7), con. denied 313 U.S. 565, it was to the Union's credit that it sought to roach an accord on substantive provisions of a contract while seeking redress before the Board for Respondent's unlawful conduct. 'In view of this conclusion, it is unnecessary , of course, to consider the General Counsel's alternative arguments based upon the Board's decision in The Laidlaw Corporation, 171 NLRB No. 175. employees, professional and technical employees, guards and supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 2. At all times since October 19, 1967, the Union has been the exclusive representative of all the employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. 3. By refusing on and after April 8, 1968, to bargain in good faith with the Union, Respondent has engaged in an unfair labor practice within the meaning of Section 8(aX5) and (1) of the Act. 4. The aforesaid unfair labor practice occurring on April 8 caused a strike among Respondent's employees commencing on April 9, 1968. 5. By failing and refusing to reinstate the 15 strikers listed in Appendix A who unconditionally offered to return to work on April 19, 1968, Respondent has discriminated against said employees in violation of Section 8(aX3) and (1) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY It having been found that Respondent has engaged in unfair labor practices in violation of Section 8(a)(5), (3), and (1) of the Act, my Recommended Order will require that Respondent cease and desist therefrom and take certain affirmative action necessary to effectuate the policies of the Act. Since Respondent subsequent to the, conduct herein found to constitute a violation of Section 8(a)(5), has entered into a 3-year contract with the Union , I do not believe it would effectuate the policies of the Act to provide an affirmative bargaining order. An order to cease and desist from the conduct herein found to contravene the requirements of good faith bargaining should be sufficient to remedy the refusal to bargain herein found. To remedy Respondent's unlawful refusal to reinstate, upon their applications, the 15 striking employees listed in Appendix A, my Recommended Order will require that Respondent offer them reinstatement to their old or substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any replacements hired subsequent to April 19, 1968, and make each such striker whole for any loss of pay he may have suffered from April 19, 1968, when he applied for reinstatement , to the date he is offered reinstatement, less his interim earnings. The backpay shall be computed in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, with interest at the rate of 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716. Because I believe that Respondent's violations of the Act stemmed from an erroneous view of Respondent's statutory duties and obligations under Section 8(a)(5) and 8(d) of the Act rather than from a general purpose to defeat unionism, my Recommended Order will not include a broad cease and desist provision but will prohibit only the specific unfair labor practices found and like or related conduct. AMERICAN SEATING CO . OF MISS. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this proceeding, and pursuant to Section 10(c) of the National Labor Relations Act as amended, it is hereby ordered that Respondent, American Seating Company of Mississippi, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with Millmen Local 2604, United Brotherhood of Carpenters and Joiners of America , AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees , including yard employees and plant clericals at Respondent's Booneville, Mississippi, plant, excluding all office clerical employees, professional and technical employees, guards and supervisors as defined in the Act. (b) Discouraging membership in the above-named labor organization by discriminatorily failing or refusing to reinstate any of its employees who went on strike on April 9, 1968, or by discriminating in any other manner in regard to their hire or tenure of employment or any term or condition of their employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action designed to effectuate the policies of the Act. (a) Offer to each of the employees named in Appendix A immediate and full reinstatement to his former or substantially equivalent position , without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered by reason of Respondent's refusal to reinstate him upon his unconditional application for reinstatement, in the manner set forth in the section of this Decision entitled "The Remedy." Notify said 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 Act of 1948, as amended, after discharge from the Armed Forces. (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll and other records useful or necessary to enable the Board to determine the amount of backpay due and the right to reinstatement under the terms of this Order. (c) Post at its plant in Booneville , Mississippi, copies of the attached notice marked "Appendix B.1'7 Copies of such notice, on forms to be provided by the Regional Director for Region 26, after being duly signed by an authorized representative of Respondent, shall 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 by Respondent to insure that said notices are not altered, defaced or covered by any other material. 'In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended order of a Trial Examiner" in the notice . In the further event that the Board's Order is enforced by a Decree of a United States Court of Appeals, the words "a Decree of the United States Court of 857 (d) Notify said Regional Director, in writing, within 20 days from the receipt of this Decision, what steps the Respondent has taken to comply herewith.' Appeals Enforcing an Order" shall be substituted for the words, "a Decision and Order." 'In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A List of employees who participated in strike and were denied , reinstatement to their former or substantially equivalent jobs following their unconditional application for reinstatement on April 19, 1968. Gene Corbin Shields Tennison Wm. Bellamy James Chase Bobby Shockley Billy Flanagan James Johnson Doyle Taylor P. B. Thorton James Lee Davis C. Clyde Nichols Jimmy Moore James Hitchcock Leland Garner Jerry Ward APPENDIX B NOTICE TO ALL EMPLOYEES We are posting this notice in compliance with the Recommended Order of a Trial Examiner of the National Labor Relations Board who, after a hearing in which all parties had an opportunity to present their evidence, found that we had violated the law . We hereby notify our employees that: WE WILL offer to each of the employees listed below immediate and full reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges previously enjoyed, and make him whole for any loss of pay he may have suffered between April 19, 1968 , when he applied for reinstatement , and the date he is offered reinstatement. Gene Corbin Doyle Taylor Shields Tennison P. B. Thorton Wm. Bellamy James Lee Davis James Chase C. Clyde Nichols Bobby Shockley Jimmy Moore Billy Flanagan James Hitchcock James Johnson Leland Garner Jerry Ward If any employee named above is in the Armed Forces of the United States, we will notify him of his right to full reinstatement, upon application, after discharge from the Armed Forces. WE WILL NOT in the future refuse to bargain in good faith with Millmen Local Union 2604, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, by withdrawing, without good cause, any contract provision to which we have previously tentatively agreed; by conditioning our willingness to agree to any term of a proposed contract upon the Union's willingness to submit such term to a vote either of all employees in the appropriate bargaining unit or 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the union membership; or by interfering, in any other manner with the internal decisions of the Union with respect to whether and in what manner the union members shall limit their bargaining agents' authority to make agreements with us. AMERICAN SEATING COMPANY OF MISSISSIPPI (Employer) Dated By (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, "146 Federal Office Building 167 North Main Street, Memphis, Tennessee, Telephone, 901-534-3161.