National Business Forms

NATIONAL BUSINESS FORMS National Business Forms and International Printing Pressmen and Assistants Union of North America, AFL-CIO National Business Forms and Southeastern Printing Specialties and Paper Products District Council S-7, affiliated with the International Printing Pressmen & Assistants Union of North America, AFL-CIO. Cases 10-CA-7279, 10-CA-7356, 10-CA-7398, and 10-CA-7453 June 20, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On February 27, 1969, Trial Examiner Herbert Silberman issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. Thereafter, the Charging Party and Respondent filed exceptions to the Trial Examiner's Decision and briefs in support thereof. Respondent has filed a motion to reopen the record and the Charging Party has filed a statement of its opposition thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases,' and hereby adopts the findings, conclusions, and recommendations," of the Trial Examiner with the following modifications. The Trial Examiner found that Respondent did not violate Section 8(a)(3) when it laid off the entire collator department on February 23, 1968. The Trial Examiner concluded that Respondent's explanation for the layoff served to rebut any inference of 'Respondent's motion to reopen the record to receive evidence of communications and events subsequent to the hearing herein is hereby denied . The fact that Respondent may have , as it now contends, bargained about the bonus following the close of the hearing is not evidence of its actions prior thereto. 'In its exceptions the Charging Party requested that the Board award backpay to the strikers from the start of the unfair labor practice strike until their reinstatement. We deem it inappropriate in this case to depart from our existing policy with respect to remedial orders in cases involving unfair labor practice strikers. See King Radio Corporation, Inc, 172 NLRB No. 109. 859 discriminatory motivation. We disagree with this conclusion . Respondent advanced as the reason for the layoff, insufficient work for the entire department for that day inasmuch as Respondent had just completed an extensive order and was current on other work. The credited evidence establishes that on the day of the election, February 21, 1968, after the election results were publicized, all but 3 of the approximately 20 employees in the collator department began wearing Union buttons.' The next day the collating employees were instructed without explanation not to work on February 23. No employee in other departments was laid off that day. Respondent had not in the past 6 years laid off the entire collator department. To avoid layoff for temporary "slow" periods Respondent has generally assigned idle employees to other duties. When work was "caught up" and layoff of individuals was necessary, an explanation of the reason therefor was customarily given. There is no indication that work was unavailable for some of the employees, if not the entire department, either in collator or other work.' We find Respondent's explanation insufficient to rebut the inference of discriminatory motive in view of the timing of the layoff - immediately after the employees in the collating department wore Union buttons to demonstrate their enthusiasm for the Union's election victory and 3 days before the discriminatory discharge of Ricker, the chairman of the Union's organizing committee - the failure to follow its practices of temporarily reassigning employees to other duties to avoid layoffs, or explaining the reason for individual layoffs, the absence of a history of laying off an entire department, and Respondent's established union animus as demonstrated through its numerous violations of Section 8(a)(1). Accordingly, we find that the layoff of the collator department on February 23 was violative of Section 8(a)(l) and (3) of the Act. ADDITIONAL CONCLUSIONS OF LAW Add the following as paragraph 6 of the Conclusions of Law and renumber the following paragraphs accordingly: 6. By laying off the entire collator department on February 23, 1968, thereby discouraging support of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 'Prior to the election only a few employees wore Union buttons. After the election results were announced most of the employees in the collating department donned buttons. However, most of the other employees did not wear them 'Contrary to the Trial Examiner, we do not find the testimony of Davis as to past layoff practice self-contradictory . His testimony shows that the distinction between layoff of an entire department and individual layoffs was intended and understood. 176 NLRB No. 122 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Respondent, National Business Forms, Inc., Greeneville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified: 1. Substitute the following for paragraph 1(c) of the Recommended Order: "(c) Discouraging membership in and support of the above-named Union or any other labor organization by discharging any employees, by temporarily laying off any employees, by refusing to reinstate striking employees entitled to reinstatement after they have made proper application, or by otherwise discriminating against employees in regard to their hire, tenure of employment, or any other term or condition of their employment." 2. Add the following as paragraph 2(d) of the Recommended Order and reletter the following paragraphs accordingly: "(d) Make whole each employee in the collator department for earnings lost as a result of their discriminatory layoff on February 23, 1968, with interest thereon at the rate of 6 percent per annum." 3. Substitute the following as the fourth indented paragraph in the notice: WE WILL NOT discourage membership in or support of the above-named Union, or any other labor organization , by discharging any of our employees, by temporarily laying off any of our employees, by refusing to reinstate any of our employees who join a lawful strike and who are entitled to reinstatement after they have made proper application, or by otherwise discriminating against any employees in regard to hire, tenure of employment, or any term or condition of their employment. 4. Insert the following as the 14th indented paragraph of the notice: WE WILL reimburse the employees of the collator department for wages lost as a result of our discriminatory layoff of them. IT IS FURTHER ORDERED that the complaint herein be, and it hereby is, dismissed insofar as it alleges violations of the Act not found herein. TRIAL EXAMINER'S DECISION Statement of the Case HERBERT SILBERMAN, Trial Examiner: The above-captioned cases having been consolidated by orders of the Regional Director , dated August 16 and 21, 1968, a hearing in said cases was held in Greeneville , Tennessee, on various days between October 15 and 31, 1968. Following the close of the hearing briefs were filed on behalf of the respective parties which have been carefully considered. The complaint in Case 10-CA-7279, dated April 4, 1968, based upon a charge filed on February 28, 1968, in substance, alleges that Respondent on February 26, 1968, discharged Donald Ray Ricker in violation of Section 8(aX3) of the National Labor Relations Act, as amended, because of his membership in and activities on behalf of the Union and that by reason of said discharge and other conduct set forth in the complaint the Respondent also violated Section 8(axl) of the Act. The complaint in Cases 10-CA-7356 and 10-CA-7398, dated August 16, 1968 , based upon charges and amended charges filed on May 10, June 19, and August 12, 1968, in substance, alleges that : (a) in violation of Section 8(aX3) and because of its employees ' membership in and activities on behalf of the Union , Respondent on February 23, 1968, laid off its collator department employees for 1 day and beginning as of said date reduced their weekly working hours from 40 to 32, and on and following April 15, 1968, refused to permit Mildred Seay, a bindery department employee, to work from 7 a.m. to 3 p .m.; (b) on March 1, 1968, following an election conducted by the National Labor Relations Board on February 21, 1968, Southeastern Printing Specialties and Paper Products District Council S-7, affiliated with the International Printing Pressmen & Assistants Union of North America, AFL-CIO, herein called the Union, was certified as the exclusive collective-bargaining representative of the production, maintenance, and shipping department employees at Respondent's Greenville, Tennessee, plant and since March 13, 1968, Respondent, in violation of Section 8(aX5), has refused to bargain with the Union in that it participated in negotiations with the Union with no good-faith intention of reaching an agreement and in that without notice to or consultation with the Union Respondent, on April 15, 1968, changed the shift hours of its bindery and makeup department , on May 10, 1968, changed the shift swing of the press department from 4 to 3 weeks, and on June 25, 1968, resumed a prior practice of paying a monetary bonus to its employees ; and (c) by the foregoing and other conduct set forth in the complaint Respondent also violated Section 8 (axl). The complaint also alleges that on June 23, 1968, employees of Respondent went on strike which strike was caused and prolonged by the unfair labor practices on the part of the Company set forth in said complaint and in the complaint in Case 10-CA-7279. Based upon a charge filed on August 19, 1968, the complaint in Case 10-CA-7453, dated August 21 , 1968, as amended at the hearing, in substance, alleges that on July 25, 1968, striking employees of Respondent made an unconditional application for reinstatement and since August 2, 1968, Respondent in violation of Section 8(aX3) and (1) has refused to reinstate said employees. Respondent in its answers, as amended at the hearing, generally denies that it has engaged in the alleged unfair labor practices. Upon the entire record in the case and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Respondent, National Business Forms, herein also called the Company, is engaged in printing and selling business forms at its plant located in Greeneville, NATIONAL BUSINESS FORMS 861 Tennessee . In the course and conduct of its business operations, during the past calendar year, which period is representative of its operations, the Company shipped finished products valued at in excess of $50,000 directly to customers located outside the State of Tennessee. Respondent admits, and I find , that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATIONS INVOLVED International Printing Pressmen & Assistants Union of North America, AFL-CIO; and its affiliate, Southeastern Printing Specialties and Paper Products District Council S-7, are labor organizations within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction These proceedings have their genesis in the self-organizational activities on the part of Respondent's employees. The gist of the complaint is that Respondent was hostile to the organizational aspirations of its employees, that prior to the Board election which the Union won, the Respondent, by means proscribed by the Act, opposed its employees' union activities, and after the election sought to undermine the Union and to attenuate the benefits the employees might derive from the designation of a representative by refusing to bargain collectively in good faith with the Union and by engaging in various reprisals against its employees. During the relevant times hereto Respondent employed approximately 88 persons in the appropriate collective-bargaining unit. These employees were divided among the following departments: composing, shipping and receiving, press, collator, bindery, and miscellaneous.' The Company was actively managed and directed by its founder, president, and majority stockholder, Emerson D. Folk. Immediately subordinate to him was Witzel Chastain who was production manager from January 1 until May 25, 1968. As production manager, Chastain was delegated full authority over Respondent's employees subject, however, to Folk's ultimate directions. Chastain was succeeded as production manager by Harold Love. There is a dispute in this case as to whether Love succeeded Chastain immediately upon the latter's resignation from the Company or in July, approximately 6 weeks later. During the times material hereto the Company operated two shifts and for a period of time three shifts. A supervisor was in charge of each of the larger departments for each of the shifts. The employees' organizational efforts began early in January 1968. The leaders in the drive to obtain union representation were Horace Davis, who was later to become president of the plant local, Charles Bunch, Thomas Adkins, and Donald Ray Ricker, who, according to the complaint, was discriminatorily discharged on February 26, 1968. On January 15, 1968, Ricker was elected chairman of the organizing committee. The next day Ricker and other employees active in the 'According to a list furnished the Union by Respondent, as of March 14, 1968, the number of employees in each of the above -listed departments were as follows: composing-14; shipping and receiving-6; press-22; collator- 19; bindery-22; and miscellaneous-5. organizational drive notified Foreman Harlin Shelton and Roy Crawford that they were giving the Company official notice that they were organizing the employees on behalf of the Union., Crawford said that he would inform Folk. In addition, they complained that they had heard that an employee was going to be fired for his union activities and stated that they were prepared to file charges with the NLRB if that happened. Crawford assured them that nobody would be discharged. On the same day Horace Davis informed Thomas Burger, foreman in the collator department, of the organizational drive and asked him to notify the Company as to what was happening. Davis also informed Burger that Ricker was chairman of the organizing committee. ' The employees' organizing drive culminated in an election conducted by the Board on February 21, 1968, at which a majority of the employees voted to select the Union as their statutory representative. On March 1, 1968, the Board certified the Union as the exclusive representative of the following collective -bargaining unit: All production and maintenance employees, and shipping department employees at the Respondent's Greeneville, Tennessee, plant, but excluding all office clerical employees, professional employees, and supervisors as defined in the Act. Thereafter six negotiating sessions were held. The first four were held on March 13, April 16 and 20, and May 6, 1968. On June 23 the employees went on strike. Two bargaining sessions were held after the commencement of the strike, on July 24 and August 9. The Union and the Company have been unable to reach an agreement and the strike is still in progress. The Company retained the services of William M. Pate, an attorney and specialist in labor relations, to represent it in its negotiations with the Union . The position of the Charging Party and the General Counsel regarding the negotiations seems to be that during the formal bargaining sessions the Company, with Pate as its spokesman, generally observed the obligations of the statute, but behind the scenes, back at the plant, Folk and other supervisory personnel engaged in conduct inimical to the objects and purposes of the Act. Mr. Pate had no knowledge of those activities until complaints were made at the formal bargaining sessions . The fact that he was kept in ignorance of the objectionable activities taking place in the plant caused union representatives during the bargaining sessions to accuse the Company of "pussyfooting" with them. The Charging Party and General Counsel argue that the conduct engaged in by the Company away from the bargaining table violated not only Section 8(axl) and (3) of the Act but also Section 8(a)(5) and that such conduct served to taint the negotiations to an extent which warrants a finding that the Company did not enter upon or conduct its negotiations with the Union with any good-faith intention of reaching an agreement. B. Interference, Restraint, and Coercion 1. By Emerson D. Folk Company President Emerson D. Folk is accused, 'The employees had been advised by a union representative to notify the Company of their organizational activities. 'Foreman Harlin Shelton testified that one of the employees, Jack Bible, showed him a letter from the Union which stated that Ricker was chairman of the organizing committee. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD particularly by the Charging Party, of being "the leading figure in respondent's open and frequently notorious opposition to the employees' selection of a union." It is contended that Folk "rejected at the outset, the idea that his employees have anything to do with the union," and even after the election and the Board certification continued "to conduct himself and his business as though the union simply didn't exist." Among other conduct purporting to support such condemnations are speeches Folk made to audiences of employees and statements he made to employees personally.' During the week preceding the election Folk twice spoke to assembled groups of employees in efforts to divert their support from the Union. The first speech was made to between 20 and 25 women who worked on the first and second shifts in the bindery department. In substance, Folk on that occasion said: He had been a member of AFL and CIO and didn't have anything against the Union. However, he didn't want his business under the Union. The employees should vote as they wished, it was their choice to vote for or against the Union. He indicated that he would not be under any compulsion to sign a contract with the Union. He stated that he had enough money to last a lifetime. Referring to a possible strike he said that the doors of the plant would be open for those who wanted to work, and some employees would not be able to get work elsewhere so that if they voted for the Union they would be hurting themselves.' On February 16, which was the Friday preceding the election on February 21, a meeting of the first- and second-shift employees was held in the shipping department. The principal speaker was Folk, but in addition, Production Manager Chastain and Supervisor Roy Crawford addressed the employees. The latter said that he had lost a job because of a union. Folk largely 'Folk, as president and principal stockholder of the family-owned Company, has a stake in the outcome of this case. He was an important witness called by Respondent in the presentation of its defense Folk's testimony tended to be diffuse and his answers tended to digress from the subject matter of the questions asked him . Many of his answers represented less his recollection of what was said or done at the times under inquiry and more a ratiocination from the vantage of the witness stand of what he believed might have or should have occurred . While I do not believe that Folk was consciously untruthful , I find that as a witness he was neither straightforward nor dependable . In resolving the conflicts between Folk's testimony and that of other witnesses I have given consideration to and have based my decisions upon this assessment of Folk's reliability as a witness. 'The summary of Folk' s speech to the bindery department is reconstructed from the testimony of Eileen Bible, Elizabeth Ann Ward, Nellie L. Hensley, Louise Jeffers, and Mildred Seay, after giving consideration to Folk's testimony concerning the event There were substantial variances in the recollections of the witnesses about what was said on the occasion in question . Such differences do not necessarily reflect unfavorably upon the truthfulness of the witnesses , but only upon the not unexpected limitations of their memories as to what they had heard at the meeting 8 months earlier . In reconstructing what Folk said to the employees I have placed only small reliance upon any statement attributed to Folk which was remembered by only one of the witnesses and much greater reliance upon statements remembered by several witnesses. While Folk denied having made some of the statements he was quoted to have made, he admitted having made most of the comments which I attribute to him in the above summary . Thus, Folk testified that he said. "[Ilf they did strike, that the doors would remain open so that those that wanted to continue work would have a job"; "I did say that the company was going into a plant over there at North Carolina", and "I said that I have my living made, and if I had had any sense that I was seventy years old, and that I should retire or have retired a long time ago." repeated and expanded upon his prior talk to the bindery employees. He told the employees that under Tennessee law they were not compelled to join the Union to work for the Company. He mentioned that he had nothing against a union and had belonged to the CIO and the AFL. He informed the employees that they would vote in secret and if the majority voted in favor of the Union it would be necessary for the Company to negotiate in good faith with the Union, but he did not have to sign a contract.6 He also said that it was the employees' privilege to go on strike if they wished. In this regard, according to Dewey Seay whom I credit, Folk said "that he would have a private truck to haul business out. He said that he had people working there that could not get a job anywhere else. He also stated that if we went on strike that we had better find another job, that we would not be coming back...." In addition, Folk talked about the fact that the Company's insurance program was equal to Blue Cross and Blue Shield benefits. Folk's speeches reveal his undisguised opposition to the designation of a bargaining representative by the employees. This alone does not constitute a violation of the Act. However, in the context of all his remarks, his statement to the employees that while he had to negotiate with the Union in good faith he did not have to sign a contract implied that he had no intention of entering into a collective-bargaining agreement with the Union. Such statement, which was calculated to impress upon the employees the futility of selecting a bargaining representative, violates the rights guaranteed employees by Section 7 of the Act.' His further remark that if the employees went on strike they would not be coming back, in the context of the entire speech, constituted a warning to the employees that in the event of a union victory at the polls and if they should later strike to press their demands they would be discharged. This also constituted an unlawful threat in violation of Section 8(a)(1). In personal contacts with employees Folk also revealed his opposition to the Union and, after the election, his resentment of the Union's victory. Thus, prior to the election , in early February 1968, he asked Nellie L. Hensley how she was going to vote. She replied, "The right way." Approximately 1 or 2 weeks later he questioned her about her opinion of the Union. When she didn't respond, Folk said that the employees had the privilege of voting as they wished, but if the Union came in they would lose everything because he had a plant ready to start operations in North Carolina. These inquiries of Mrs. Hensley concerning her attitude towards the Union and her voting intentions, in the context of his unlawful threat to close the plant should the Union come in and his contemporaneous speeches to the employees revealing his opposition to their organizational activities, were coercive in that they tended to instill in the employee the fear that if her employer were to discover that she supported the Union she would be subject to his reprisals. About February 15, Folk engaged Donald Ray Ricker in a conversation while the latter was at work. Folk asked Ricker whether he was acquainted with the laws governing 'Folk denied that he said to the employees that he did not have to sign a contract. He explained that he said, either "I would not sign a contract with that in it," or "I was not going to sign that contract ," referring to a bulletin which the organizing committee had posted in the plant concerning wages which were being paid by a competitor (No other witness testified to the existence of such bulletin ) I do not credit Folk's denial 'Brandenburg Telephone Company. 164 NLRB No. 26, Orkin Exterminator Company of Florida, Inc, 152 NLRB 83, 93, enfd. 379 F.2d 972 (C.A. 5) NATIONAL BUSINESS FORMS unions in the State of Tennessee. Ricker replied that he was, that Tennessee was an open-shop State. Folk responded, "Yes, that's right.... No one has to belong to a Union in order to work in my plant." Folk then asked Ricker how much education he had. Ricker replied that he had been to college for almost 2 years. Folk asked what he was earning and Ricker said $1.90. Folk inquired, "Well, can you take your two years of college and get a job anywhere else in Greeneville making $1 .90 an hour within a year' s time?" When Ricker said he thought he could Folk retorted, "Well, why the hell don't you get that job?" Contrary to General Counsel, I find that this remark by Folk reflected Folk's vexation because Ricker did not appreciate the treatment accorded him, rather than an implied threat of reprisal because of his union activities. Later the same day Folk asked Ricker, "If they were to walk out, would you walk out with them?" Ricker replied that he would. Such effort on the part of an employer to cause an employee to declare himself regarding the extent to which he was willing to support a union or to join with his fellow employees in concerted strike action is an unlawful intrusion upon employees' self-organizational rights., It not only tends to place the employee in fear of reprisals should his employer find his declaration objectionable but infringes upon his right to decide for himself whether to support or refrain from supporting the concerted activities of his fellows. Folk's incriminatory activities became more extensive after the election. One evening in early March Folk began a conversation with Jackson Bible , who was then operating his press, by derisively asking, "Where is your red badge?" referring to the union button many employees had begun to wear after the election. During the ensuing conversation Bible asked whether the Union will get a contract. Folk responded that he had to negotiate with the Union, otherwise it's against the law, "But I don't have to give a contract to no one." The conversation concluded after Folk remarked that many of the union employees were not educated and that it would be hard for them to get a job elsewhere. In the context of the entire conversation Folk's comment that he did not have to give a contract to anyone implied that the Company would not fulfill its statutory duty to bargain in good faith with the Union. Such remark suggesting that the employees' designation of a statutory representative was a useless and futile act tends to discourage union adherence and, therefore, interferes with the rights guaranteed employees by Section 7 of the Act. Two or three weeks after the election Folk had another conversation with Nellie L. Hensley about the Union. He told her that he was compelled to negotiate with the Union, but was not compelled to sign a contract and that there would be no further bonuses because the Union had come in. He also repeated his threat to move the plant to North Carolina. The statements made by Folk in this conversation constituting threats of reprisals against the employees because of their union activities and indicating an unwillingness to bargain collectively as required by the statute were further violations of Section 8(a)(1). On March 29 Folk engaged Horace Davis, who had been elected to the Union's bargaining committee and who also had been elected president of the local, in a conversation at his machine. Folk began talking about the purple martins, a species of bird, being back and sitting 'Certain-Teed Products Corporation , 153 NLRB 495, 507; Beiser Aviation Corporation , 135 NLRB 399, 400; we N.L.R.B. v . Harry F. Berggren & Sons. Inc.. 406 F .2d 239 (C.A. 8). 863 outside on boxes. Davis answered that perhaps they like it that way. This inspired Folk to remark, "Well, why don't you men go on the outside. There is no law preventing it and there is no law stopping you." Davis retorted, "We might do that one of these days." Contrary to General Counsel, I find that Folk's remark suggesting that the employees go on strike was not coercive although it might have indicated his annoyance at the fact that the Company was compelled to negotiate with the Union and also might have been intended to nettle Davis.' In March, Folk told several of the women who worked in the plant that there was a way of finding out how they voted, that the FBI could fingerprint the ballots. While this suggestion was farfetched, nevertheless, it would tend to make employees apprehensive about the possibility that their Employer might discover how they had voted and might engage in reprisals against those who voted for the Union. I find, therefore, that such statement by Folk violated Section 8(a)(1). In early May, while negotiations between the Company and the Union were in progress, Folk make a remark to several women who were then working in the plant about the possibility of a strike and then stated, "It's been nice knowing you." I find that this incident does not constitute a violation of the Act. Contrary to Charging Party, I also find that the following do not spell out violations of the Act: (1) the testimony by Kyle Holt that about a month after the election Folk sought to ridicule him by remarking with reference to the union button he was wearing that it is "a pretty button . a high priced button, too;" and (2) the testimony by Charles Bunch that on' one occasion after the election Folk reproached him for staring by saying, "[K]eep your damn eyes on the press. If I need anybody to do any gawking here, I'll hire somebody for this." Janice Carolyn Beals testified with respect to various conversations she had with Folk which General Counsel contends evidence further violations of the Act on the part of Respondent. However, during the period involved Beals was a supervisor. As it does not appear that any of the alleged incriminatory conversations between Folk and Beals were overheard by rank-and-file employees, the statements attributed to Folk by Beals, even if made, would not constitute violations of the Act. 2. By Thomas Burger, supervisor in the collator department About 2 weeks before the February 21 election Burger had a conversation with Horace Davis during which Burger expressed the opinion that if there should be a strike it would be similar to the strike at Kingsport Press and the Company would hire new employees to replace the strikers. Such conjecture on Burger's part that the Company in the event of a strike would hire replacements, a tactic not prohibited by the Act, was not unlawful. However, Burger went further and said, "I know Mr. Folk, and he will not sign a contract." This observation, for reasons discussed above, violated Section 8(a)(1) of the Act.' ° '1 find that General Counsel has not proved a violation of the Act by Davis' testimony that Folk directed him to take his vacation in March, although the practice was to permit employees to request their vacation time. Folk testified that while he tried to accommodate the employees' vacation requests, he sometimes directed employees to take vacations, although not requested, because there was not sufficient work available. "The offending comment by Burger is no less a violation of the Act 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About the same time , approximately 2 weeks before the election , Burger had a conversation with Harold Ricker concerning the Union during which Burger said , "Ricker, you are going to keep on 'til you lose your job." A week later Burger reminded Harold Ricker that the Union had tried to organize the plant before and that a lot of employees had lost their jobs because of the Union and specifically referred to one employee by name who had been fired for such reason." These threats made to Harold Ricker that he would be discharged if he continued with his union activities were patently unlawful." In mid-June 1968 Burger made a similar remark to Glenn C. Mitchell, saying to him, "Mitchell, you fellows are going to keep on until you get fired over this Union." This comment I find also was unlawfully coercive." On May 3, Horace Davis informed Burger that the former would be absent on Monday , May 6, in order to attend a bargaining session . Burger replied that after Monday a lot of you will not be working here. When Davis asked what he meant Burger responded that Monday would be our last day of negotiations. Davis said that he did not know anything about the matter . Before the conversation concluded they both expressed a mutual hope that a settlement would be reached ." While the precise meaning of Burger's comments are not clear, they, nevertheless , indicate that the Company did not intend to reach any agreement with the Union and that the Company would initiate steps to sever the employment of union adherents. I find that these remarks were unlawful. At the bargaining session which was held on May 6, Davis complained to Pate about Burger's comment that this was the last day of negotiations. Pate denied any knowledge of the fact. Pate sought to assure the union committee that the Company was sincerely trying to reach an agreement with them . He explained that Burger's statement might have been made in the expectation of a strike arising from the inability of the parties to reach agreement. Pate said that the Company had no plan to discharge anybody and that he could give the committee such assurance. Shortly after the meeting the following was posted in the plant: NOTICE TO ALL EMPLOYEES In our contract negotiations on May 6, 1968, some of the Union committeemen stated that I had made statements to employees that we would not sign a contract with the Union , and that I suggested that the employees would have to strike to get anything from because it was expressed as his opinion. Monroe Auto Equipment Company. 146 NLRB 1267, 1275, fn. 23. In National Business Forms , Can IO•CA-5330, the decision, dated December 2, 1963, of a Trial Examiner found that the employee named by Burger had been discriminatorily discharged by the Company. "With reference to his conversations with Harold Ricker, Burger testified , "We had numerous discussions, but I didn't tell him about losing his job, I was referring obviously to the strike that he would be without a job in the strike." Burger generally denied having made the remarks attributed to him by Harold Ricker . However, I find Harold Ricker was the more credible witness and therefore reject Burger 's contradictory version of their conversations. "I credit Mitchell's testimony with respect to the above statement despite Burger's denial. I do not credit the testimony of Marion Gene Feezell that in early March . Burger commented to him that "the old man said if we was going to run it by a union , we would run union hours, and when we come m and didn't have anything to do, we would go home." 141 credit Davis' version of the conversation. According to Burger he said to Davis, "I told him that I had heard that this was the last day of negotiations until they decided if they were going to strike or what." the Company. My statements must have been misunderstood. We have been willing, and are willing, to sign a contract with the Union if agreement is reached on contract terms. We have met several times with the Union and have tried to reach agreement . We have made proposals, and have made concessions on a number of points. These proposals have been made sincerely in an effort to arrive at a contract. If any foreman has made statements in conflict with this explanation , he has not correctly stated the Company's position. It was also suggested at this conference that a foreman had stated that some of the employees would not be here much longer . Such a statement, if made, apparently referred to a possible strike. I want to assure all employees that the Company has no intention to discharge anyone because of any union. EMERSON D. FOLK The attempted disavowals by Pate at the May 6 meeting and by the notice, quoted above, were inadequate to dissipate the coercive effects the conduct referred to. These disclaimers pointedly reflect the dichotomous nature of the Company's relationship with the Union and with its employees . At the formal bargaining sessions the Company's conduct was unobjectionable . However, there the Company was represented by Attorney Pate and, except for a brief appearance at the April 16 session, Folk was not present. Also, as is reflected by the May 6 events and the notice posted thereafter, Pate not only was scrupulous in observing the strictures of the Act himself, but actively attempted to rectify situations that came to his attention which pointed to the commission of unfair labor practices by the Respondent. On the other hand, at the plant, away from the guidance and counsel of Pate, both before and after the quoted notice was posted, Folk and other supervisors were careless about respecting their employees' organizational rights. This contradictory behavior on the part of the Respondent caused employee-members of the bargaining committee to become suspicious of the Company's good faith in its dealings with them and to express such concern at the bargaining sessions. Pate's assurances to them were not likely to be convincing when he had to confess ignorance of the incidents which had caused the employees to make complaints. Similarly, the quoted notice was not likely to allay the employees' fears or to convince the employees of the sincerity of its assertions . The notice, although bearing Folk's name, does not read as if it was written by Folk. The events suggest that the notice was written by Pate or under his direction and it is probable that the employees inferred that to have been the case. In the circumstances, absent other indicia that the Company was going to observe more faithfully its statutory obligations, the notice most likely was viewed as a tactical gesture rather than a sincere commitment to bargain in good faith and to - refrain from discriminating against employees . I find that neither Pate's assurances given to the Union's bargaining committee at the May 6 meeting nor the quoted notice, whether considered separately or together, was sufficient to neutralize the conduct found above to be violations of the Act. 3. By Jack Whatley, supervisor in the press department NATIONAL BUSINESS FORMS I find that the following three incidents involving Whatley constitute violations of Section 8(a)(l): In late January 1968, Charles Bunch, a press operator who was active in the Union's organizational campaign, asked Whatley whether it was permissible to sign union cards during free time. Whatley said it was not to which Bunch responded that he understood the employees have such right under the Taft-Hartley Act. Whatley then said, "You had better not do this. Mr. Folk will not allow it and if he catches you doing it you will be discharged." In an earlier conversation during the same month Bunch was told by Whatley that the latter had heard from the plant manager that Donald Ricker would be discharged because of his union activities. Regardless of the truth of Whatley's statement his remark to Bunch was a violation of the Act.16 About the middle of January Whatley remarked to Dale Taylor that the employees who were passing around union cards were going to lose their jobs." 4. By Roy Crawford, supervisor in the press department Prior to the election on February 21, Crawford questioned two employees about their attitude towards the Union. Thus, John Huff testified that Crawford asked him whether he was going to vote for the Union. Similarly Crawford asked Randall Phil Chandler, another employee in the press department, how he felt about the Union. In the context of the Company's other unlawful activities, particularly the speeches that President Folk made to the employees and the threats Folk made to Davis and Bunch, who also worked in the press department, I find that these questions by Crawford were unlawfully coercive. 5. By Harold Love, production supervisor Love is accused of having made certain incriminatory remarks. Harold Ricker testified that, in early June, Love derogatorily asked him if his union badge was worth $5 a month. Clyde Dale Brooks testified that on May 14 Love said to him that anyone who had "anything to do with a (Union) badge didn't have any damned sense and needed someone to lead him around like King Horace" (referring to Union President Horace Davis). Prior to the resignation of Witzel Chastain as production manager for the Company on May 25, 1967, Love was an expeditor which is not a supervisory position. It is General Counsel's contention based on the testimony of Horace Davis and Charles Bunch that a notice was posted in the plant on May 27 advising the employees of Chastain' s resignation and that Love had succeeded to his job." Love testified that he was not given the position until July 6, 1968. The Company's records show that as of that date Love received a substantial increase in pay. Upon evaluating all the testimony concerning the matter and because I consider Love to have been a credible witness, I find that General Counsel did not prove that 1°I place no reliance upon this hearsay testimony in connection with my determination as to whether Ricker later was unlawfully discharged. "Taylor testified that another employee. Joe Strange, said to him in Whatley's presence that if the Union was voted in, the old man would close down and move to North Carolina; and that he would not sign a contract. Whatley commented , "That's right. He can do either one of those." Strange denied having made the statement attributed to him by Taylor. Strange impressed me as being a truthful and reliable witness. Accordingly, I credit his denial. 865 Love was a supervisor prior to July 6, 1968. Accordingly, the remarks attributed to Love, even if made, do not constitute violations of the Act. C. The Alleged Discriminations 1. The layoffs The complaint alleges that the Company discriminatorily laid off the entire collator department on February 23, 1968, and as of said date reduced the weekly hours of work for the collator department from 40 to 32. No evidence was offered to establish that there was a reduction of the normal hours of work for the department and this charge apparently has been abandoned because it is not referred to in the briefs filed by General Counsel and Charging Party. On February 23, 2 days after the election which was won by the Union, the entire collator department was laid off for the day. Horace Davis testified, without contradiction, that after the results of the election became known, the employees in the collator department almost in a body demonstrated their union sentiments when all but three of the approximately 20 who worked in the department began wearing union buttons. The next day, which was a Thursday, Foreman Burger notified the employees in the department that they would not work on Friday. No explanation was offered for the layoff. Davis further testified that during his 6 years of employment with the Company never before had the entire collator department been laid off. Davis also testified that the employees customarily were given a reason when they were laid off or sent home early." The only evidence offered by Respondent regarding the February 23 layoff was given by Witzel Chastain who testified that he decided to layoff the collator department on February 23 because of lack of work." Despite the paucity of evidence offered by Respondent, I find that General Counsel has not proved that the layoff on February 23 was discriminatory. Accepting as true the testimony of Davis that the entire collator department had never previously been laid off, that alone does not establish that the layoff of February 23 was not made for a justifiable business reason; namely, as testified to by Chastain, because there was insufficient work for the employees in the department. General Counsel's argument that the layoff was in retaliation against the employees for flaunting unionbuttons is sheer speculation.25 "Dewey Seay testified that he did not recall seeing such notice. However. Dewey Stay testified that a few days after Chastain left, Love remarked to him that he was going to take Mr. Chastain's job. "Inconsistent with this testimony, Davis, when questioned about a partial layoff which occurred on June 6, testified that prior to the time that the employees began their organizational activities no one was laid off for lack of work; if there was no production work for an employee he was assigned to another task but was not sent home. "Folk testified that during the period Chastain was in charge of production, from about January 1 , 1968, until his resignation on May 25, 1968, the authority to decide upon layoffs and to make similar decisions was reposed in Chastain. Folk explained, "Some of the decisions he made, I wasn't exactly in favor of, but I realized that the man on the job couldn't think a hundred percent like I did. So. I didn't have anything to do with these lay offs. The only thing he said was that we were out of work and he was going to lay them off. And I said, you are in charge of the production department, and you do as you see fit" "Davis testified that on June 6 most of the employees in the department were laid off for a period of 4 hours and that Foreman Burger told him that the reason for the layoff was that work was slack . Charging Party in 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The discharge of Donald Ray Ricker Donald Ray Ricker, who was chairman of the Union's organizing committee at Respondent' s plant, was discharged on February 26, 1968, when he reported for work. According to the Company, Ricker was discharged because of his failure to work overtime the preceding Saturday. General Counsel, on the other hand, contends that Ricker was discharged in reprisal for his union activities. Ricker, who was a pressman, began working for the Company on March 16,' 1967. His performance on the job was outstanding. Thus, Foreman Harlin Shelton testified that Ricker did "a marvelous job" and that he told Folk that "in a couple of years that [Ricker] would be one of the best pressmen that we had ever had." Ricker testified that about January 22, 1968, Folk informed him that the foreman had a very high opinion of him, which was corroborated by Folk who testified that he told Ricker, "[Y]ou have a good future here."2i There is substantial agreement as to the events which led to Ricker's discharge.22 On Thursday, February 22, Foreman Harlin Shelton asked Ricker to work overtime on Saturday. Similar requests were made to the other pressmen . Ricker informed Shelton that he would be unable to work on Saturday because he wished to attend to personal matters. Shelton said he could not excuse Ricker but would check with Chastain. The next day Shelton informed Ricker that Chastain would not excuse him from working on Saturday. Ricker nevertheless told Shelton that he would not be at work because he had to attend to personal matters. Shelton counseled, "Well, now, Don, you know that they are mad at you and I'd advise you to come on in and work." Ricker inquired whether he would be discharged if he did not go to work. Shelton answered, "No, I'm not saying that now. I'm just saying that I would advise you to come on in and work." Ricker told Shelton that he would not be there.23 its brief argues that the June 6 layoff constituted a violation of the Act However, the complaint contains no such allegation and General Counsel in his brief does not urge that the June 6 layoff was discriminatory. Davis testified that when he was laid off on June 6 he still had work which would take 1-1/2 days to complete . He protested the layoff to Burger as being discriminatory . Davis also testified that to the best of his knowledge work was available for the other employees in the collator department . In this respect Davis' testimony constitutes no more than a guess regarding the amount of work which was available for the other employees in the collator department . Although no specific rebuttal of Davis' testimony was offered by Respondent , I find that standing alone it does not prove that there was adequate work for the employees in the collator department on June 6. 1968. No evidence other than the fact that the layoff occurred was offered to prove that it was discriminatory . Davis testified that the Company prior to the Union 's organizational activities had never laid off employees for any reason . However, this testimony is not corroborated in any way and is inconsistent with other testimony by Davis that it had been the custom of the Company to give the employees reasons for layoffs. I find that the evidence does not establish that the June 6 layoff was unlawfully discriminatory "In the same conversation Folk assured Ricker that there was no truth to the rumor that Folk was considering discharging Ricker Folk told Ricker, "Your job is good here as long as you want it to be " "There are certain discrepancies between the testimony of Ricker and the testimony of Foreman Shelton concerning conversations between themselves. I credit the version of the events given by Ricker who testified with straightforward assurance, without equivocation and who generally impressed me as being a reliable witness. "Shelton's version differs from Ricker's in that , according to Shelton, on Friday, February 23, Ricker explained that the reason he did not wish to work on Saturday was that he had been working hard organizing and had not spent any time with his wife and wanted the weekend off to be with When Ricker arrived at the plant at 3 p in. for the second shift on Monday, February 26, he was met in the parking lot by Foreman Roy Crawford who gave him his check and discharge slip. Although all the pressmen had been asked to work on the Saturday in question, in addition to Ricker, Dale Taylor, John G. Huff, Jackson Bible, and William Wells failed to work. Bible and Wells had been excused in advance." Huff testified that although he had told his supervisor, Roy Crawford, on February 23 that he would work overtime on Saturday, nevertheless, he did not work on that day nor did he inform the Company that he would be absent. Huff was penalized by a I-day disciplinary layoff. Dale Taylor testified that he had been excused from working on Saturday, February 24, by Foreman Whatley. However, when he next reported for work, Harlin Shelton, the foreman on the shift, told Taylor that he was laid off for a day because of his failure to work on Saturday. Taylor replied that Whatley knew that he would be absent. Shelton then said that if Taylor wished he could work and see Chastain about the matter later. However, Taylor merely accepted the discipline and did not work on that day. The decision to discipline the employees who failed to work on February 24 was made by Production Manager Chastain. The latter testified that on Friday, February 23, Shelton had informed him that Ricker wished to be excused from work on Saturday because he had spent a lot of time organizing for the Union and wanted to stay home with his wife. Chastain told Shelton that the excuse was unacceptable and that we expected Ricker to work on Saturday. Chastain further testified that some time Saturday night, "I decided that I would let Mr. Ricker go because he didn't report to work on Saturday. And he didn't call in and say he was sick and he did not have anyone call in." When asked to explain why Ricker was more severely treated than Huff and Taylor, Chastain explained, "They came back in with the excuse that they were sick. Huff and Taylor did.... As far as I know [Ricker] didn't give any excuse for being out on Saturday, his foreman did not report any excuse that he gave." Chastain's explanation for the disparity in the discipline meted out to Ricker and to Huff and Taylor for the same offense is unconvincing. According to Chastain the latter two "came back in with the excuse that they were sick."2S However, Ricker was notified of his discharge in the parking lot and was not given an opportunity to present an excuse. Furthermore, when Huff reported for work on Monday he was told to take the day off by his supervisor. There is no evidence that Huff was asked why he had been absent and to the contrary Huff testified that he gave no explanation. Similarly, in the case of Taylor, it does not appear from the record that Chastain knew at the time he decided upon a 1-day disciplinary layoff for Taylor why Taylor had been absent on the Saturday in question. Taylor had been excused in advance by Foreman Whatley. Chastain did not testify that Whatley had informed him of this fact. Presumably, if Chastain had her. When Shelton reported to Ricker that Chastain refused to excuse him from working overtime, according to Shelton , he also said, "(T)here is a good chance that they might be irritated about it anyway . So, I would advise him to come to work." "Chastain testified that Wells was excused because he had notified the Company that he had rented a truck to get some tile Wells did not testify. Charles Bunch testified that Wells had told him that Wells had not given any excuse for his failure to work on the Saturday in question . I place no reliance upon this testimony by Bunch which is uncorroborated heresay. "Other than this bare statement , there is no evidence of any report NATIONAL BUSINESS FORMS known that Taylor had been excused then, like Wells and Bible, Taylor would not have been disciplined for his absence on Saturday, February 24. Apart from the difference in the discipline of Ricker and of Taylor and Huff for essentially the same offense, Ricker's discharge for his refusal to work overtime was excessive in all the circumstances. The Company had no policy which made overtime compulsory. Thus, Taylor testified that the Company had never rejected any reason he gave for refusing to work overtime. Huff and Dewey Seay similarly testified that they never had been ordered to work overtime on a Saturday when they gave a reason for not wishing to do so. Furthermore, prior to Ricker's termination, no employee had ever been discharged by the Company for refusing to work overtime. In this case an employee who had an exemplary record and was considered a "marvelous worker" was discharged the first time he was guilty of any purported misconduct. Furthermore, no other employee had ever been discharged for a similar offense and Taylor and Huff who committed the same offense at the same time were each merely given a 1-day disciplinary layoff rather than a discharge.16 Not only do the reasons offered by Chastain for the discharge of Ricker appear weak and insubstantial but it is not normal industrial practice for an employer to discharge an outstanding employee the first time he engages in any misconduct, particularly where, as in this case, the misconduct was not of a serious nature. I find Respondent's explanation for Ricker's discharge not credible. While there is no direct credible evidence as to why Ricker was discharged, the circumstances strongly suggest what was the true reason. The Company was opposed to the Union. Nevertheless, on February 21, 3 days before Chastain decided to discharge Ricker, the Union won a Board election at the plant. The Company knew Ricker was chairman of the Union's organizing committee. The logical inference to be drawn from the circumstances is that Ricker's union activities was the motivating reason that impelled the Respondent to terminate his employment. Such inference is strengthened by the fact that Foreman Shelton suspected that management was seeking an excuse to retaliate against Ricker for his having been made to Chastain that Huff and Taylor had not worked on Saturday, February 24, because of illness. "Chastain in explaining his decision to discharge Ricker testified, "Donald was discharged because he didn't show up for work on Saturday. After we had told him that we expected him to be there doing the work. . . And he didn't show up at work on Saturday and didn 't give any excuse on the next shift when he came in." However , Chastain further testified that he did not give Ricker an opportunity to present an excuse because he decided to discharge him that very same Saturday. Shelton testified that about 6 p.m. that Saturday evening he had a conversation with Chastain in which they talked about giving Taylor, who worked on Shelton's shift, a day off and Chastain advised Shelton to inform Taylor about the discipline . Chastain then said that we might have to let Ricker go . When Shelton asked why, Chastain explained that Ricker "was told directly to come in, and the other boys hadn't been ." Thus, according to Shelton , Chastain explained that the reason he was going to punish Ricker more severely than Huff and Taylor for the same offense was that Ricker was specifically told that he would not be excused from work on Saturday. (The other two had not indicated to Chastain that they would not work and so Chastain had no occasion to tell them whether they would be excused.) Thus, significantly different, although related, reasons are advanced to explain Ricker's discharge . Such uncertainty on the part of Chastain as to why he discharged Ricker tends to detract from the plausibility of the defense. 867 participation in the Union's successful campaign. This is revealed by the fact that when Shelton advised Ricker that Chastain would not excuse him from work on Saturday, February 24, he told Ricker "they are mad at you and I'd advise you to come on in and work." Accordingly, I find that Ricker was discharged on February 26, not for the reason assigned by the Company, but because of his union activities. Such discharge violates Section 8(a)(3) of the Act and also constitutes interference with and restraint and coercion of employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) thereof. 3. As to Mildred Seay About April 28, 1968, Respondent changed the working hours for the employees in the bindery and makeup, department from 7 a.m. to 3 p.m. to 7:30 a.m. to 3:30 p.m. When the notice of change of hours was posted, Mildred Seay, who worked in the bindery department, asked her supervisor, Betty Fillers, whether she nevertheless could work the former hours in order that she might continue riding to and from work with her husband. Fillers replied that Seay would have to ask Chastain because Chastain had said that only two employees in the department, Eileen Bible and Betty Wells, would be permitted to work the former hours. Fillers said that she also would ask Chastain. However, Fillers never reported back to Mrs. Seay about the matter. The subject was raised by Mrs. Seay, who was a member of the Union's negotiating committee, at the bargaining session which was held on May. Chastain who was present at the meeting said that the change in hours was due to the change from standard time to daylight saving time. Regarding Mrs. Seay's request to work the old hours Chastain said he would have to ask Folk. A day or two after the meeting Mrs. Seay's husband, Dewey Seay, spoke with Chastain about the subject. He asked why his wife could not work from 7 a.m. to 3 p.m. when Mrs. Wells and Mrs. Bible were working those hours. Chastain replied that he will ask Mr. Folk about the matter. Dewey Seay answered, "If you have to ask Mr. Folk, just forget it.,, I find, contrary to General Counsel, that the evidence does not prove that Respondent discriminatorily refused to change Mrs. Seay's working hours but shows merely that Dewey Seay withdrew the request because of his irritation at the fact that Production Manager Chastain did not have authority to approve the request without first checking with Folk. D. The Refusal to Bargain Collectively 1. The formal bargaining sessions Following certification of the Union on March 1, 1968, there were six bargaining sessions which were held on March 13, April 16 and 20, May 6, July 24, and August 9, 1968. The last two sessions took place while employees were on strike. The strike which was still in progress on the dates of the hearing began on June 23. At the negotiations the spokesman for the Union was Barron L. Watkins and for the Company was its attorney, William M. Pate. General Counsel and Charging Party recognize that because of the practiced finesse with which Pate conducted negotiations for Respondent little evidence can be gleaned from the bargaining sessions themselves to support the 8(a)(5) allegations of the complaint. This does 868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not necessarily mean that the Company bargained in good faith. The presence or absence of good faith requires an investigation of the employer' s subjective attitude towards bargaining with the representative of his employees. To drive a hard bargain is not unlawful. Section 8(d) of the Act specifically provides that the duty to bargain collectively does not require any party to make concessions. This, however does not mean that the employer fulfills his bargaining obligations merely by attending meetings with the union and stonily rejecting all proposals but his own . The question in each case, often difficult to determine, is whether the employer is acting in good faith in his insistence upon what he deems are satisfactory provisions in any contract to which he will agree even at the risk of a prolonged strike or whether with no intention of reaching any agreement he is seeking to frustrate bargaining and to undermine the union. In this case it was Folk who ultimately passed upon and determined the Company' s position regarding the subjects of negotiation and thus it is his attitude primarily which must be explored to determine Respondent's good or bad faith in its dealings with the Union. However, Folk was present at only one bargaining session , on April 16, and then only for a short time in the afternoon . Folk's absence from the bargaining sessions might have been upon the advice of Pate and as part of a strategy not to expose the Company' s bargaining posture to possible intemperate remarks by Folk which might reveal an antithetical attitude towards the negotiations. This conjecture has some basis in the record . At the May 6 meeting members of the union committee complained about statements allegedly made by Folk to the effect that there would be no contract and that Folk wanted a strike. Pate denied any knowledge of such statements and added, "I had always found it hard to keep Mr . Folk at any time from saying what he wanted to say." The absence of Folk from the bargaining sessions and the skillful dealings with the Union by Pate leave little in the meetings themselves from which any adverse inferences regarding the Company's attitude towards the negotiations can be drawn . Thus, with one exception the General Counsel predicates the 8(aX5) allegations of the complaint upon the Company's conduct away from the bargaining table. However, General Counsel argues that the nature of the Company' s contract proposals made at negotiations (J.E. Joint Exhibit No. 8, 12, 14, 21, 23) is indicative of an attitude exceeding hard nose bargaining . For instance, the Employer insisted upon the broad and extremely detailed management rights clause which reserved to it [control over] every significant term and condition of employment. (Joint Exhibit 12, Section 20) The management rights clause is almost identical with that which the Board found to be indicative of bad faith bargaining in Stuart Radiator Core Mfg. Co., 173 NLRB No. [27]. Moreover, Respondent here adamantly insisted upon limiting the grievance procedure to three steps which culminated in the president of the International Union or his representative and the president of the company or his representative as the final step , Respondent retaining the ultimate power in any grievance procedure . (Joint Exhibit No. 8, Section 12) Respondent further adamantly refused to grant an arbitration procedure which would allow the Union's objections to the Employer's exercise of its prerogatives to a meaningful arbitration , again very similar to those proposed by the Employer found violative in Stuart Radiator. I find the analogy to the Stuart Radiator case misplaced. The Company's management rights proposal here was not quite as far reaching as the corresponding clause in the Stuart Radiator case. Furthermore, unlike the Stuart Radiator case where the employer at all times refused to consider any changes, here the Company made modifications to its original management rights proposal. More importantly, this provision was not a significant source of disagreement between the parties and at the July 24 meeting the parties reached agreement on a management rights clause. In addition, Watkins testified that at the April 16 meeting the parties came to an agreement on the language of the grievance procedure and at the July 24 meeting they reached agreement on an arbitration clause. In the Stuart Radiator case the Board held with respect to the clauses in issue that "since the Respondent could not have offered them with any reasonable expectation that they would be acceptable to the Union, we can only conclude that Respondent did not approach negotiations in good faith and with the intent of reaching an agreement ." Here, unlike the Stuart Radiator case, the clauses referred to by General Counsel did not stand in the way of agreement upon an entire contract because the parties did in fact agree upon those provisions. Whether a contract proposal made by an employer is, as stated in Stuart Radiator, "predictably unacceptable to the Union," turns not only upon the language of the proposal but also upon the conditions prevailing in the plant and, in some circumstances, in the industry and in the area. In this case, the three provisions referred to by GGeneral Counsel were not the subject of extensive debate during the bargaining sessions, did not seem to be of excessive concern to the Union's committee, and were ultimately agreed to. While obtaining the Union's assent to those clauses may have represented a substantial bargaining achievement by the Company, in the circumstances, it does not demonstrate that the Respondent was conducting the negotiations with the Union in bad faith. 2. The unilateral changes Effective April 21, 1968, the rotation of shifts for the press department was changed from every fourth week to every third week. This change was made without prior notification to the Union and without giving the Union an opportunity to bargain about the subject." Subsequently, the subject was discussed at the May 6 bargaining session. However, the members of the Union's committee then were in disagreement among themselves as to whether the change was an advantage or a disadvantage. Chastain testified that the foremen were changing shifts every 3 weeks and the pressmen who worked under their supervision were changing every 4 weeks and, because he wanted the crews to remain with the same foremen, he changed the period of shift rotation for the pressmen from every fourth to every third week. The Company's position is that because neither at the May 6 meeting nor at any later meeting the Union requested a further change in the rotation of shifts in the press department there was no refusal to bargain on the "The subject of shift rotation for the press department was raised at the April 20 bargaining session . The Union requested a change from every fourth week to every second week . Pate said that he knew nothing about the matter, and would have to find out more about it. There was no further discussion of the subject at the meeting. NATIONAL BUSINESS FORMS 869 subject. This argument ignores completely the thrust of the complaint, namely, that it is unlawful for an employer to bypass his employees' bargaining representative and to make unilateral changes in their conditions of employment regardless of whether such changes may have been welcomed and may have been considered as a benefit by the employees. A similar unilateral change was made the following week, effective April 29, in the hours of work for the first shift of the bindery department . Their hours of work were changed from 7 a.m. to 3 p.m. to 7:30 a.m. to 3:30 p.m. This change also was effected without prior notification to the Union and without any opportunity being given to the Union to bargain about the subject. Folk testified that he made the change because it was his opinion that the early morning hours are best for sleeping. Therefore, with daylight saving time becoming effective on April 29, he ordered the change of hours so that the employees in the bindery department would not lose an entire hour of morning sleep by reason of the time change. The subject was raised at the May 6 bargaining session , but the discussion was limited because Pate did not know about the change in work hours. Here also Respondent's defense that the Company was willing to bargain about the hours of work is without merit . While a willingness to bargain about a unilateral change after the event might be a mitigating circumstance, it does not cure the unlawfulness of the act engendered by the Company' s disregard of the Union's bargaining rights. A second defense offered by Respondent is that Union Representative Watkins had a wide territory to cover and "was not in a position to bargain with the company about matters of this kind on a day-to-day basis." This is a feeble argument. There is no evidence that there was any urgency about changing the hours of work for the bindery department. Furthermore , as the change was related to the inauguration of daylight saving time, if the Company felt the need to make the change on April 29, with a little foresight it could have raised the subject with the Union at the first bargaining session on March 13 or the session held on April 16 or even at the session which was held on April 20. A more significant unilateral action taken by Respondent concerns the payment of a $200 bonus to all its employees on June 25, 1968. In the years from 1960 to 1968 the Company had paid substantial bonuses in varying amounts to its employees at semiannual intervals. According to Respondent, before the advent of the Union, in December 1967, a decision was reached to discontinue the bonus payments and to give the employees a wage increase in lieu of the bonus. In accordance with this decision a general wage increase was given in January 1968. Early in January 1968 a notice was posted in the plant explaining that the board of directors had decided to discontinue the bonus and in its stead to grant the employees a general wage increase." This was repeated at the end of April when a copy of a letter, dated April 29, 1968, from Folk to the Union was posted." In pertinent part, the letter reads as follows: At the bargaining conference on April 20, 1968, you made reference to a pay increase granted by the Company to its employees before the NLRB election. You referred to this increase as being granted "to buy votes." The decision to grant this wage increase was made by our board of directors on December 15, 1967. If any union activity was taking place at that time , we had no knowledge of it. The following excerpt from the directors' meeting of that date covers this action: It was decided to discontinue the practice of paying yearly bonus and to raise the hourly wages of the employees . Mr. Folk stated the reason for the change being made, "most employees do not consider the bonus when figuring their hourly wage rates." Then, in early May, another notice was posted which stated that an incentive bonus will be given to those employees who make a special effort; it will not be given on the basis of seniority.'' Some days later the words "NLRB will not allow" were written under the notice. On May 9, 3 days after the fourth bargaining session, Pate wrote a letter to Watkins in which , among other things, he said: I wish also to make on the company's behalf a new proposal on wages. We are willing to grant an across-the-board increase of 5 cents per hour and eliminate the provision for a wage reopener after eight months. This proposal is made with the understanding that no bonus will be paid to employees at the conclusion of the present fiscal year. On June 23 the employees went on strike. Almost immediately thereafter, on June 25, without prior notification to the Union, the Company distributed by mail to each employee with 1 year or more of continuous service, including the striking employees , a bonus of $200. Of significance is that there was no bargaining session between May 9 and the date on which the bonus was distributed. The Company's last wage offer of an across-the-board increase of 5 cents per hour, set forth in Pate's letter of May 9, specifically called for the elimination of a bonus." This offer comes to only $2 per week for a 40-hour week or only $104 per year on the basis of 52 40-hour weeks per year. Nevertheless the Company voluntarily gave its employees a $200 bonus, double the amount of the yearly increase which it offered the Union. "Charles Bunch testified that on January 18, a notice signed by Production Manager Chastain was posted in the plant which advised employees that they work in a competitive business, if they made more effort, produced better quality work , and made fewer errors, a bonus would be given . This notice was superseded in April by a notice which again stated that no bonuses would be given. "Before the letter was posted in the plant. Folk read it to the employees in the bindery department. He called upon Mrs. Mildred Seay , a member of the Union's negotiating committee, to stand beside him as he read it. After he finished reading the letter Folk said that incentive bonuses would still be given , but not to those who were found dragging their feet. "Jackson Bible testified that while he was reading the notice Foreman Shelton approached and said , "Mr. Folk will give you your bonus." Bible further testified that, previously, towards the end of April. Folk spoke to him at this press and said, "You don't have to tell anyone , not even your wife, that the bonuses will be given . . . The Company will take care of its loyal employees." This latter statement is alleged , and I find, to be an unlawful promise of benefit in violation of Section 8(a)(1). Bible further testified that in early June he asked Foreman Jack Whatley whether a bonus was going to be given . Whatley said he would speak to Folk about it. The next evening Whatley reported that Folk had advised that the raise we were given in January was considered as our bonus . About a week later Whatley told Bible that Folk had said that he (Folk) could not give a bonus to anyone, not even to himself. "On June 10, 1968 , Pate made an alternate proposal to Watkins offering to establish a minimum rate of $1.70 per hour for all employees who have completed 30 days of employment. He specifically stated that this proposal did not constitute a withdrawal of the wage proposal previously made. 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD After the bonus was distributed Watkins received a letter from Pate, dated June 25, in which Pate states: The company plans to pay at this time a bonus of $200 to each employee with one year or more of continuous service as of the end of the last fiscal year. If you have any objections to this bonus, or any questions about it, or if you wish to discuss it, please let me know. This offer to bargain came too late after the event. In a subsequent letter to Watkins, dated July 10, Pate explained: [W]e wanted to keep you informed of all action taken on matters subject to bargaining and to give you full opportunity to bargain concerning them. That was the reason for my letter of June 25 concerning the bonus. I misunderstood what Mr. Folk was doing. I did not realize that the $200 payment was being made immediately, and thought that there would be time for bargaining, if desired by the union, before the bonus was paid. Mr. Folk's intent was to pay this amount immediately, but without making a final determination of the amount of bonus to be paid. Consequently, the $200 payment does not represent the Company's final action on the bonus, and we are ready to bargain with you concerning the payment of an additional bonus, concerning the amount, if any to be paid, and concerning the method of determination of the bonus payable to each employee. Charging Party, after pointing out that the "matter of bonus payment had never been discussed in negotiations," characterizes Pate's last letter as "a valiant but impossible effort" to extricate the Company from the consequences of its actions. In its brief, Respondent makes an extended argument in which it tries to demonstrate that the Company at all times was ready to bargain about bonuses and that the fault was with the Union for not first raising the subject. I find no merit to the argument of Respondent. Unilaterally giving a bonus or other benefits to employees while their bargaining representative is seeking to negotiate a contract is a particularly insidious way of undermining the Union. By such conduct the employer demonstrates to the employees that they must look to him as the source of any employment rewards and that they cannot hope to obtain any substantial benefits through the intercession of their bargaining representative. The payment of the bonus in this case is a dramatic illustration of such strategy. The best wage offer the Union obtained from the Company prior to the strike of June 23 was 5 cents per hour across-the-board. This amounts to about $104 per year. Then, immediately after the employees go on strike, the Company mails to each of them a bonus of $200, despite notices posted in the plant in early January and again in late April that bonuses had been discontinued. The calculated effect of this action was to impress upon the employees that through the Union they were unable to achieve any gains and now were on strike, but without the Union they can rely upon the grace of the Company for generous treatment. Such conduct was calculated to denigrate the Union in the eyes of its members, particularly those who had joined the strike, and to discourage further support and adherence to the Union. In many decisions the Board and the courts have remarked upon the pernicious unlawful effect of such unilateral action. The statutory duty to bargain collectively with respect to wages, hours, and other terms and conditions of employment presupposes that the employer will not impede or frustrate the bargaining process by unilaterally changing the terms or conditions of employment. Any unilateral action, regardless of motive, which denies to a labor organization effective participation in an important area of the bargaining relationship tends to subvert the organization's position as a representative of the employees, impedes negotiations, and constitutes a breach on the part of the employer of its statutory collective-bargaining duties. Thus, in this case, Respondent by its unilateral actions in the payment of a bonus to its employees, in the circumstances described above, in changing the rotation of shifts for the press department, and in changing the hours of work for the bindery department has engaged in refusals to bargain in violation of Section 8(ax5) of the Act. Furthermore, despite the care with which Pate on behalf of the Respondent carried on the formal negotiations with the Union, I find that the unilateral actions described above considered together with the Respondent's other unfair labor practices, in particular, the statements by Folk that he would not enter into a contract with the Union, reveal that from the very outset of the negotiations Respondent had no good-faith intention of arriving at any collective-bargaining agreement with the Union. Thus, as alleged in the complaint, Respondent's violations of Section 8(a)(5) date from the commencement of negotiations on March 13, 1968." Respondent's described violations of Section 8(a)(5) also constitute interference with and restraint and coercion of employees in the exercise of the rights guaranteed by Section 7 of the Act in violation of Section 8(a)(1) thereof. E. The Strike At a union meeting held on June 23, 1968, the employees voted to strike. The complaint alleges that the ensuing strike, which still is not settled, is an unfair labor practice strike. The issue is well stated by Respondent in its brief: "When the strike occurred, the big issues between the parties related to contract negotiations. If respondent had not been bargaining in good faith, it could be successfully asserted that the strike was caused by unfair labor practices." I have found above that the Respondent was not bargaining in good faith. Accordingly, I find that the strike was caused, at least in part, by the Company's unlawful refusal to bargain. Furthermore, the distribution of the bonus to the employees, on June 25, 2 days after the strike was declared, was a substantial impediment to the satisfactory conclusion of the negotiations, was an unlawful unilateral act, and was an aggravated violation of the Respondent's duty to bargain with its employees' designated representative. Accordingly, I further find that the strike was prolonged by Respondent's unfair labor practices. While I believe that much of the evidence adduced by General Counsel and Charging Party concerning statements made by various employees at the union meeting of June 23 was self-serving and has but small bearing upon the motivations for the strike, nevertheless, "The notice to employees posted by Folk shortly after the May 6 negotiating session in which he repudiated statements attributed to him to the effect that the Company would not sign a contract with the Union, considered in the light of the prior and the subsequent events, cannot be accepted as a trustworthy reflection of Folk's attitude. NATIONAL BUSINESS FORMS 871 the discharged of Donald Ray Ricker, although some 4 months earlier, and the Respondent's other unfair labor practices, detailed above, had some bearing upon the decision to strike. The principle is well established that a strike is an unfair labor practice strike if the unfair labor practices had anything to do with causing it. Although Respondent's unlawful refusal to bargain collectively was the proximate cause of the strike, its other unfair labor practices, while somewhat remote in time, were also contributing factors. As the strike was caused and prolonged by Respondent's unfair labor practices, Respondent was under an obligation to reinstate the strikers to their former positions when proper application for reinstatement was made, dismissing , if necessary, replacements hired during the strike. On July 25, 1968, W. A. McHugh, Jr., attorney for the Union , sent a telegram to Pate which , in pertinent part, reads as follows: Re Strike at National Business Forms Inc. Greeneville Tennessee. On behalf of all striking employees I have been authorized to advise you that the employees hereby unconditionally offer to return to work. Said employees desire to return as of II p.m., Sunday, July 28, 1968. Please contact Local 753 president Horace Davis . and advise of desired employee work schedule for and after July 28th .... The next day Pate responded by letter to McHugh asking for the names of the strikers on whose behalf McHugh was requesting reinstatement and whether the application is made individually on behalf of each striker or whether it is a group application on behalf of "all striking employees" conditioned upon the Company reinstating all the strikers as a group . He informed McHugh that it is expected that the Company will have vacancies for some strikers but not for all of them and intends to fill any existing vacancies with strikers applying for reinstatement. He also advised that the applications of the strikers will be given continuing effect for a reasonable period after the end of the strike and the Company will fill vacancies occurring during such period with strikers applying for reinstatement . The Company thus made clear that it did not intend to discharge replacements in order to reinstate striking employees." On July 30 McHugh wrote to Pate that the offer of reinstatement set forth in his telegram of July 25, "was made on behalf of all strikers individually, and also for all strikers as a group." With his letter he enclosed a list containing the names of 38 striking employees who desired reinstatement. The letter continued by advising that as unfair labor practice strikers, "these employees clearly have the right to expect full reinstatement of all strikers to their former positions." He asked the Company to furnish the Union with certain information if the Company claims, after displacing striker replacements with returning strikers, that it has an insufficient number of positions available to reinstate all the strikers. Finally, a request was made that the Company refrain from communicating directly with any striker. Pate responded on July 31, as follows: You are apparently unwilling to state whether you are making application for the strikers strictly on an individual basis so that each will have effect "I n its brief, the Company explains that it informed the Union that it would not discharge replacements to make room for strikers and was trying to find out whether the Union wanted the Company to offer reinstatement to some of the strikers even though it did not have jobs for all of them. independently of the others or whether the application is conditioned upon the company's taking all strikers. Since the strike is continuing with picketing, and since you have requested that we not communicate with the strikers on the list enclosed with your letter, I assume that you are not ready for the company to begin recalling strikers to work. If these applications are intended to be presently effective so that we may begin to recall the strikers, please let me know. On August 2 Pate again wrote to McHugh as follows: I have restudied your letter of July 30. I regret that you have made your position ambiguous, and that I do not know whether you are asking us to consider your application as an individual application on behalf of each striker on the list. I do not think it is sufficient to constitute such an application. I feel, however, that our only safe course is to make offers of reinstatement to those strikers for whom the company has vacancies. Accordingly, the Company expects to begin to make offers of reinstatement to individual strikers on this basis. If your offer is conditioned upon the company's taking the whole group, upon its discharge of replacements hired during the strike, I will appreciate your informing me clearly of that fact. On August 7 the Company offered reinstatement to eight employees and on August 12 the Company wrote letters offering reinstatement to seven additional employees. Only I of the 15 employees responded to the Company's offers of reinstatement. At the August 9 bargaining session Pate brought up for discussion the question of reinstatement of the striking employees. According to Pate, "I said that we really did not know what they were asking for and that we would like to have the situation clarified. I asked whether the union was applying for the reinstatement of all strikers as a group or whether they were asking individually for the reinstatement of each striker independently of the others. I explained that we did not know whether the application was conditioned upon our taking all strikers or whether they wanted us to make offers to some of them even if we could not take them all . I also said that we did not know whether their offer was conditioned upon our discharging the replacements that had been hired if necessary to make room for strikers. Watkins said that we already had their answer to these questions and that he did not want to elaborate on what had been written."34 On August 12, in McHugh's absence his law partner wrote to Pate with respect to Pate's last two letters. He stated that the application for reinstatement "was both individual and as a group . In their status as unfair labor practice strikers, they are all entitled to reinstatement subject only to the commission of misconduct which would cause an individual to waive that right." The complaint alleges that on July 25 the striking employees made an unconditional application for "Later, during the same meeting, Pate addressed three questions to Watkins both orally and in writing concerning the same subject, but Watkins still refused any response other than to say that the Company already had the answers . The questions were the following. Are you asking that we offer reinstatement to each striker for whom we have an opening , or are you asking that we reinstate all strikers as a group? If we cannot reinstate all strikers, do you want us to offer reinstatement to any of them? If we do not have jobs for all strikers, is your application for reinstatement conditioned upon our discharging the replacements hired during the strike9 872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reinstatement and since August 2 Respondent unlawfully has refused to reinstate them. The principal defense thereto is that the application for reinstatement was ineffective. In its brief the Company argues that the striking employees evidenced an intent not to return to work except as a group." Such assertion finds support in the communications from the Union and from the failure of the strikers, except one, to respond to the Company's offers of reinstatement. While such circumstance might constitute a valid defense if, as the Respondent contends, the strike was an economic strike, it is not a sufficient defense in this case where the strike was an unfair labor practice strike. The Company, in its brief, also considered the possibility that the strike was an unfair labor practice strike and contends that even in such case there was no unconditional application for reinstatement. This argument is founded upon two assumptions, both of which are without any direct evidentiary support in the record. The first is that when the application for reinstatement was made there were not as many available jobs in the plant as when the employees first went on strike, and the second is that the application for reinstatement was conditioned upon all strikers being reinstated as a group regardless of the availability of jobs even after the discharge of the replacements. According to the Respondent, "[i]f there are fewer jobs than the number of strikers, and the application still requires the reinstatement of the entire group, the application is conditional."" This argument is specious. The Company did not intend to discharge the replacements in order to reinstate the strikers and had advised the Union to such effect. Respondent was intent only upon ascertaining whether any strikers would return to work upon the Company's terms. Thus, at the August 9 bargaining session , Pate asked Watkins, "If we do not have jobs for all strikers, is your application for reinstatement conditioned upon our discharging the replacements hired during the strike?" In none of the Company's communications to the Union did it ask whether the Union was insisting upon every striker being returned to work. While the communications from the Union might have been clearer, they are not fairly subject to the interpretation that the Union was demanding that strikers who had committed acts of misconduct should be reinstated or that the Company should, after discharging the strike replacements, reinstate strikers for whom there were no job vacancies. Unfair labor practice strikers are entitled to condition their offer to return to work upon their reinstatement as a group and not to return on a piecemeal basis. " Accordingly, I find that the Respondent, as alleged in the complaint, since August 2, 1968, has violated Section 8(a)(3) and (1) of the Act by its refusal to reinstate the striking employees. "The Company, in its brief, acknowledges that "(t)his position is consistent with the union's assertion that these persons were unfair labor practice strikers and that the reinstatement of all was expected." "I do not agree with Respondent's analysis of Abbott Publishing Co., 139 NLRB 1328, nor with Respondent's assertion that the above quotation "follows even if the absence of jobs results from replacement." "Rice Lake Creamery Company. 151 NLRB 1113, and cases cited in fn 12, enfd . sub. nom. General Drivers and Helpers Union, Local 662, IBT, 302 F.2d 908 (C.A D.C.), cert. denied 371 U.S. 827; E. A. Laboratories. Inc., 80 NLRB 625, 671. The Company also argues that the application for reinstatement was faulty because the list of employees for whom the Union was seeking reinstatement contains the names of two persons who are not on strike. Even if this assertion is true, errors on the part of the Union in the preparation of such list do not impose any invalid condition IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the Respondent's operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the policies of the Act. For reasons which are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited, I shall recommend a broad cease-and-desist order. I have found that the Company unlawfully discharged Donald Ray Ricker on February 26, 1968. Thereafter, by letter dated June 24, 1968, the Company offered Ricker reinstatement to his former position. Ricker, however, did not return to work in response to this offer because he joined the strike which began on June 23, 1968. Ricker, therefore, is in the same position as the other strikers in regard to reinstatement. I shall, however, recommend that the Company make Ricker whole for any loss of earnings he may have suffered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from February 26, 1968, the date of his discharge, to June 25, 1968, the date on which he received the Company's offer of reinstatement, less his net earnings during such period. The backpay shall be computed on the basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 289. Interest at the rate of 6 percent per annum shall be added to such net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Having also found that the Respondent unlawfully refused on and after August 2, 1968, to comply with the Union's request for reinstatement of the strikers, I shall recommend that the Respondent reinstate all its employees who participated in the strike which started on June 23, 1968, to their former or to substantially equivalent positions, without impairment of their seniority or other rights or privileges, dismissing, if necessary, any persons hired as replacements on and after June 23, 1968. If, after such dismissals, there are insufficient positions remaining for all the striking employees who desire reinstatement, the available positions shall be distributed among them, without discrimination because of their union membership, activities, or participation in a strike, in accordance with seniority or other nondiscriminatory practice as therefore has been applied in the conduct of the Company's business. Those strikers for whom no employment is immediately available after such distribution shall be placed upon a preferential hiring list with priority determined among them by seniority or other upon the application for reinstatement because there is no warrant for believing that the application was being conditioned upon the Employer reinstating persons who were not among the unfair labor practice strikers. In this case, particularly, such errors were of no consequence because the Company had advised the Union that it did not intend to comply with its obligation to reinstate the unfair labor practice strikers as a group. NATIONAL BUSINESS FORMS nondiscriminatory practice as theretofore has been applied in the conduct of the Respondent's business and thereafter, in accordance with such system , they shall be offered reinstatement as positions become available and before other persons are hired for such work. I shall also recommend that the Respondent make the striking employees whole for any loss of earnings suffered by them by reason of the discrimination against them , by payment to each of a sum of money equal to that which he normally would have earned from August 2, 1968, to the date of a proper offer of reinstatement, less his net earnings during such period. Backpay shall not accrue to any strikers for such intervals of time within the backpay period for whom no work or job would have been available had all the strike replacements been discharged by August 2, 1968." Backpay shall be computed on basis of calendar quarters, in accordance with the method prescribed in F. W. Woolworth Company, 90 NLRB 298. Interest at the rate of 6 percent per annum shall be added to the net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that the Respondent has unlawfully refused to bargain collectively with the Union, I shall recommend that it be ordered to bargain collectively with the Union, upon request, with respect to rates of pay, wages, hours of employment, and other conditions of employment for the employees in the appropriate unit described below and, if an understanding is reached, embody such understanding in a signed agreement. I have found that the Respondent did not confer in good faith with the Union. Although the Company attended six bargaining meetings with the Union, at no relevant time did it have a sincere intention of reaching an agreement with the Union. Respondent's purpose, I find, was to frustrate bargaining , to denigrate the Union in the eyes of its employees, and to convince its employees that only through the grace and generosity of the Company will they secure benefits but not through the representation of the Union. The circumstances reveal a refusal by Respondent "to accept the procedure of collective bargaining."" Accordingly, the certification year shall be deemed extended for a period equal to the period from March 1, 1968, until Respondent shall have complied with this Decision." For the reasons set forth in M. F. A. Milling Company, 170 NLRB No. 111, I shall recommend that Respondent reimburse the employee members of the Union' s negotiating committee for wages lost, if any, while attending the negotiating sessions, with interest thereon at the rate of 6 percent per annum. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. All production and maintenance employees, and shipping department employees at the Respondent's Greeneville, Tennessee , plant, but excluding all office clerical employees, professional employees, and supervisors as defined in the Act, constitute a unit "Any disputes regarding the availability of jobs during the backpay period will be decided in connection with the Board's determination of compliance with the terms of this Decision and Recommended Order. "National Labor Relations Act , Sec. I. 11Mor-Jac Poultry Company. Inc., 136 NLRB 785; Lamar Hotel. 137 NLRB 1271, 140 NLRB 226, enfd . sub. nom. N.L.R.B. v. Commerce Company, 328 F.2d 600, 601 (C.A. 5), art. denied 379 U.S. 817; Barnett Pontiac Inc.. 174 NLRB No. 57. 873 appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 2. Southeastern Printing Specialties and Paper Products District Council S-7, affiliated with the International Printing Pressmen & Assistants Union of North America, AFL-CIO, since March 1, 1968, and at all times material herein , has been the exclusive collective-bargaining representative within the meaning of Section 9(a) of the Act of the employees in the above-described unit. 3. Since March 13, 1968, by failing and refusing to bargain in good faith with the Union as the collective-bargaining representative of Respondent's employees in the aforesaid appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 4. By changing the rotation of shifts of the pressmen on April 21, 1968, by changing the hours of work of the employees in the bindery department on April 29, 1968, and by distributing to the employees a bonus in the amount of $200 each on June 25, 1968, without affording the Union an opportunity to bargain about such matters, Respondent further has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 5. By discriminatorily discharging Donald Ray Ricker on February 26, 1968, thereby discouraging membership in the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 6. By failing to reinstate its striking employees after proper application for reinstatement had been made, thereby discouraging membership in the Union, Respondent, since August 2, 1968, has engaged in and is engaging in unfair labor practices within the meaning of Section 8(aX3) of the Act. 7. By the foregoing conduct and by its other conduct specifically found above to have been unlawful, Respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. 9. Respondent has not engaged in any violations of the Act by reason of conduct alleged in the complaints to have constituted unfair labor practices except insofar as,. such conduct hereinabove has been found to violate Section 8(axl), (3), or (5) of the Act. 10. The strike which began on June 23, 1968, having been caused and prolonged by Respondent 's unfair labor practices, is an unfair labor practice strike. 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 Act, I hereby recommend that National Business Forms, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Southeastern Printing Specialties and Paper Products District Council S-7, affiliated with the International Printing Pressmen & 874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Assistants Union of North America, AFL-CIO, as the exclusive collective- bargaining representative of the employees in the following appropriate unit: All production and maintenance employees, and shipping department employees at the Respondent's Greeneville, Tennessee, plant, but excluding all office clerical employees, professional employees, and supervisors as defined in the Act. (b) Paying or withholding bonuses, changing the hours of work, or making or effecting any other changes in the terms and conditions of employment of the employees in the aforesaid collective-bargaining unit without first giving notice to their collective- bargaining representative and affording such representative an opportunity to negotiate with the Company about any such proposed change. (c) Discouraging membership in the above-named Union or any other labor organization by discharging any employees, by refusing to reinstate striking employees entitled to reinstatement after having made proper application, or by otherwise discriminating against any employees in regard to their hire, tenure of employment, or any term or condition of their employment. (d) Promising to pay employees a bonus or other benefits in order to discourage them from joining, assisting , or supporting the above-named Union or any other labor organization. (e) Coercively interrogating employees about their attitude towards the above-named Union or any other labor organization. (f) Questioning employees as to whether they would support a strike or other concerted activities for their mutual aid or protection. (g) Threatening employees with discharge or other reprisals if they should join, assist, or support the above-named Union or any other labor organization. (h) Threatening employees that it will not sign any collective-bargaining agreement with their duly designated representative. (I) Threatening employees with discharge or other reprisals should they strike. (j) Threatening employees that it will close its plant in order to avoid dealing with the above-named Union or any other labor organization which the employees might select or designate as their representative. (k) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively concerning rates of pay, wages, hours of employment, and other terms and conditions of employment with Southeastern Printing Specialties and Paper Products District Council S-7, affiliated with the International Printing Pressmen & Assistants Union of North America, AFL-CIO, as the exclusive representative of all the employees in the appropriate unit described above, and, if an agreement is reached, embody it in a signed contract. (b) Make whole each employee member of the negotiating committee of the Union for earnings lost while attending past bargaining sessions with interest thereon at the rate of 6 percent per annum. (c) Make Donald Ray Ricker whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings he may have suffered by reason of Respondent's discrimination against him. (d) Subject to the limitations described in the section of this Decision entitled "The Remedy," offer its employees who participated in the strike which began on June 23, 1968, immediate reinstatement to their former or to substantially equivalent positions, without prejudice to their seniority and other rights and privileges and make them whole, in the manner set forth in the section of this Decision entitled "The Remedy," for any loss of earnings they may have suffered by reason of Respondent's discrimination against them. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Recommended Order. (f) Notify any employee entitled to reinstatement under the terms of this Order if presently serving in the Armed Forces of the United States of his 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. (g) Post at its plant in Greeneville, Tennessee, copies of the attached notice marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 10, after being duly signed by its representative, shall be posted by Respondent 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. (h) Notify the Regional Director for Region 10, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith .41 "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 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 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 Southeastern Printing Specialties and Paper Products District Council S-7 affiliated with the International Printing Pressmen & Assistants Union of North America, AFL-CIO, as the exclusive representative of all employees in the unit described below, with respect NATIONAL BUSINESS FORMS 875 to wages, hours, and other working conditions and, if an understanding is reached , embody it in a signed contract. The appropriate unit is: All production and maintenance employees, and shipping department employees employed at our Greeneville, Tennessee, plant, but excluding all office clerical employees, professional employees, and ,upervisors as defined in the Act. WE WILL NOT pay or withhold bonuses, change the hours of work, or make or effect any other changes in the terms and conditions of employment of our employees in the above -described collective-bargaining unit without first giving notice to the above-named Union and affording such Union an opportunity to engage in collective bargaining with respect to any such proposed change. WE WILL NOT discourage membership in the above-named Union , or any other labor organization, by discharging any of our employees , by refusing to reinstate any of our employees who join a lawful strike and who are entitled to reinstatement after having made proper application , or by otherwise discriminating against any employees in regard to hire, tenure of employment, or any term or condition of their employment. WE WILL NOT promise to pay employees a bonus or other benefits in order to discourage them from joining, assisting, or supporting the above-named Union or any other labor organization. WE WILL NOT coercively question employees about their attitude towards the above-named Union or any other labor organization. WE WILL NOT question our employees as to whether they would support a strike or concerted activities for their mutual aid or protection. WE WILL NOT threaten our employees with discharge or other reprisals if they should join, assist , or support the above-named Union or any other labor organization. WE WILL NOT threaten employees that we will not sign any collective-bargaining agreement with the above-named Union. WE WILL NOT threaten employees with discharge or other reprisals should they strike. WE WILL NOT threaten employees that we will close our plant in order to avoid dealing with the above-named Union. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization , to form, join, or assist any labor organization , to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL reimburse Donald Ray Ricker for any loss of earnings caused by our discrimination against him. WE WILL reimburse the employee members of the above-named Union's negotiating committee for wages lost while attending past negotiating sessions. WE WILL offer our employees who participated in the strike which began on June 23, 1968, immediate reinstatement to their former or substantially equivalent positions (placing on a preferential hiring list those employees for whom there is no job available) without prejudice to their seniority and other rights and privileges and we will make them whole for any loss of earnings suffered by reason of our discrimination against them. WE WILL notify any such employee if presently serving in the Armed Forces of the United States of his 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. Dated By NATIONAL BUSINESS FORMS (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, 730 Peachtree Street, NE., Room 701 , Atlanta, Georgia 30308, Telephone 404-526-5760.