M. R. & R. Trucking Co.

M. R. & R. TRUCKING CO. 167 M. R. & R. Trucking Company' and Truck Drivers, Warehousemen and Helpers Local No. 512 affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America' and Harvey D. Boatright. Cases 12-CA-4068, 12-CA-4167, and 12-CA-4098 August 21, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND JENKINS On July 25, 1968, Trial Examiner William J. Brown issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in, and was engaging in, certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, General Counsel filed exceptions to the Trial Examiner's Decision and a supporting brief, and Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. These rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner only to the extent consistent with the Decision and Order herein. We agree with the Trial Examiner, for the reasons set forth in his Decision, that Respondent engaged in conduct violative of Section 8(a)(1) of the Act during the period that the 1967 negotiations were in progress by (1) advising its employees that although management was engaged in negotiating with the Union, the negotiations would not be productive because management would shut down its operations rather than let the company go union; and (2) coercively interrogating employees regarding their Union sentiments. We do not agree, however, with his analysis of the evidence bearing on the 8(a)(5) d the independent 8(a)(3) and (1) violations alleged in the complaint. Contrary to the Trial Examiner and for the reasons discussed below, we 'Herein referred to as Respondent. 'Herein referred to as the Union. are persuaded rather that these allegations of the complaint are amply supported by the record.' 1. THE 8(A)(5) ALLEGATIONS The issue posed by the 8(a)(5) allegations of the complaint is whether, in meeting with the Union for the purposes of collective bargaining on and after July 1967, Respondent engaged in mere surface bargaining contrary to its obligation to meet and discuss the bargainable issues in good faith and with a sincere willingness to reach a mutually satisfactory agreement. According to time-honored definitions of the broad statutory standard of "good faith," resolution of this issue turns on a determination of Respondent's state of mind and requires consideration of the totality of Respondent's conduct, rather than the appraisal of single events or actions each in isolation." Application of these standards always demands, at the outset, a difficult judgment as to what are the significant or relevant facts. But, clearly, the "previous relations of the parties, antecedent events explaining behavior at the bargaining table, and the course of negotiations"' all form part of the fabric of the evidence on which the judgment must ultimately be based. Accordingly, while 10(b) limitations preclude our finding unlawful in the instant case any conduct by Respondent occurring before July 2, 1967, we have taken into account, as relevant background, the earlier aspects of Respondent's relationship with the Union about which evidence was adduced." Further, in seeking to determine whether Respondent negotiated with the Union in good faith on and after July 2, 1967, we have examined not only the facts descriptive of its behavior at the bargaining table in that period but also those descriptive of its conduct towards the Union and the unit employees away from the bargaining table. Our analysis of all this evidence has, as we have indicated, led us to conclude that although Respondent held extended discussions with the Union for purposes of bargaining, it did not in fact engage in these discussions with a sincere intent to explore or to reach a meaningful agreement with the Union. The considerations which have impelled our conclusion are as follows: 'We have here taken into account certain facts in addition to those set out by the Trial Examiner. In so doing, we have relied either on documentory evidence of undisputed validity, or on the uncontradicted testimony of the parties. 'See, for example, N.L.R.B. v. Insurance Agents' International Union. AFL-CIO. (Prudential Insurance Company of America). 361 U.S. 477, 485; Kohler Co., 148 NLRB 1434, 1444, enfd . 345 F.2d 748 (C.A.D.C.), cert. deniedl, 382 U.S. 836; N.L.R.B. v. Herman Sausage Co.. Inc., 275 F.2d 229 (C.A. 5). 'Quoted from Mr. Justice Frankfurter's opinion in N.L.R.B. v. Truitt Manufacturing Co., 351 U.S. 149,155. 'The alleged violation of Sec. 8(a)(5) is limited to Respondent's dealings with the Union during the Union's second certification year. However, the earlier negotiations were documented by the record as background evidence both to give meaning to the antecedent negotiations and to aid in the evaluation of Respondent's state of mind during those later negotiations. 178 NLRB No. 35 168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A Respondent s Bargaining Strategy in the 1966 Negotiations Respondent's conduct in its 1966 negotiations with the Union disclose a number of classic indicia that Respondent sought to avoid rather than to reach agreement with the Union These indicia appear, in the main, at all points of the negotiations at which the critical issue of wages came up for discussion and are fully described below Although the parties commenced their meetings in January 1966, the wage issue was not reached for serious discussion until the March 21 meeting ' At that meeting, Respondent offered the Union a contract incorporating a 7-6-7-cent-per-hour increase over the 3-year term on which the bargaining discussions had theretofore been based ' Although the Union then told Respondent that it did not regard the offered increase as adequate, it reconsidered the matter after the meeting had adjourned and advised Respondent a few days later that it was now willing to submit a contract containing the 7-6-7-cent wage increase offer to a vote of the employees By letter dated March 29, Respondent advised the Union that as the Union had failed to accept the wage proposal at the March 21 meeting, the offer had lapsed and that Respondent was not willing to grant a contract on that basis No economic justification for the withdrawal of the wage proposal was offered to the Union Nor was any asserted at the hearing' In these circumstances, and in light of what follows, we can only conclude that Respondent chose to renege on the wage proposal solely because it believed that it would be unable to avoid agreement on a contract if it left its offer open At a meeting held in April, the Union attempted to elicit Respondent's revival of the 7-6-7-cent wage offer, and, referring to the matter, voiced strong objections to Respondent's having withdrawn that offer In response , Respondent referred to the Union's interim actions in filing with the Board a number of unfair labor charges involving this unit, and of a series of representation petitions for units of employees at other of Respondent' s terminals 10 Respondent told the Union that it would not now make any wage increase proposal unless and until 'The previous meetings of the parties had been devoted primarily to discussion of noncost items According to the testimony of McKenzie and Currie, Respondent' s chief negotiators the parties had by March 21 reached substantial agreement on most of the noncost items submitted to negotiation 'The Trial Examiner incorrectly described this offer as being for 7-6 6 cents When McKenzie Respondent' s president was cross-examined at the hearing as to why the wage offer was withdrawn he testified We were still negotiating a contract and we made the offer at that time and it was not accepted That s all I care to state about it When pressed further for an explanation McKenzie replied I don t recall why There s no reason for me telling you I do when I don't Following Respondents unexplained withdrawal of the wage offer the Union filed a refusal to bargain charge As noted below this charge was subsequently withdrawn (1) the Board disposed of the pending charges or the Union withdrew them, and (2) the Union abandoned its organizational efforts at the other terminals " At subsequent meetings, Respondent continued to explain in terms of the Union's other organizational activities its unwillingness to agree to any contract contemplating an increase in wage rates Thus, at a meeting in June or July, Respondent told the Union it would accept a contract similar to the one the Union had negotiated with the Miller Tank Company (an unrelated Employer) on condition that the Union discontinue organizing at its other terminals In rejecting that proposal, the Union noted, inter aha that the 5-year term of the Miller Tank contract was longer than any term on which the parties' negotiations had theretofore been based, and that the Union did not want a contract for so long a term In September, the parties met under the auspices of a mediator from the Federal Mediation and Conciliation Service By that time, the Board elections at other terminals had been concluded As these elections had resulted in the Union's victory at only one of the several terminals the Union had attempted to organize, the Union pressed Respondent to reconsider its position on wages for this unit of employees It offered to accept from Respondent the 7-6-7-cent wage increase Respondent had proposed in March, or a 1-year contract limited to a 5-cent wage increase In rejecting both of these proposals, Respondent indicated that it would not now acquiesce in any wage increase proposal because the Union's limited success in organizing the other terminals had strengthened Respondent's bargaining position and had insured it of the Union's inability to exert effective strike pressures At the next meeting of the parties, held on October 6, Respondent again refused to consider any contract contemplating a wage increase This time, however, Respondent grounded its refusal on the fact that the Union's certification year was about to expire And it suggested that the Union file a new representation petition-this, though 2 months still remained before the end of the certification year and, as Respondent admitted at the hearing, there "Previously filed unfair labor practice charges alleged violations of Sec 8(a)(5) (3) and (1) of the Act The 8(a)(3) charges (which alleged discrimination against two employees) were disposed of by formal settlement procedures, and a decree based upon the same was entered on or about March 28 1966 The Union withdrew its 8(a)(5) charges sometime in the summer of 1966 The then pending representation petitions (some of which were filed by sister locals and some by the Union ) culminated in the conduct of elections by the Board at five terminals The Union succeeded in winning the election at one of the terminals -that located in Quincy Florida A sister local won the election at the Pensacola terminal But no union won the elections conducted at the Atlanta Georgia or at the Marianna and Tallahassee Florida terminals "Under well settled precedents the imposition of such conditions as a prerequisite to the negotiation of bargainable matters constitutes a clear manifestation of bad faith See for example Greer Stop Nut Co 162 NLRB 626 630, and cases there cited M. R. & R. TRUCKING CO., was in fact no question in Respondent's mind that the Union continued to enjoy the support of a majority of the unit employees.12 The October meeting was the last one held for purposes of bargaining during the first year of the Union's incumbency as the Union thereafter chose to follow Respondent's suggestion and seek a new certification through the Board's election procedures. Respondent then proceeded to use the pre-election period to conduct a vigorous campaign among its employees for the Union's ouster. Significantly, in the course of this campaign, it informed its employees that it had established fringe benefits and increased wage rates for employees at terminals where the Union had lost elections, and had deliberately withheld these benefits from the unit employees assertedly because it needed "to cover the additional expenses brought about by the presence of a union."" Despite the foregoing, the Union won the second election. But, as subsequent events were to prove, Respondent remained determined that its employees would not gain any substantial benefits by choosing to remain committed to Union representation. B. Respondent's Strategy During the 1967 Negotiations Turning now to the period covered by complaint, we find ample indicia that Respondent approached the 1967 negotiations still determined to withhold from the employees any economic fruits of bargaining and to avoid the consummation of agreement. We note particularly the following: In the contract proposal which Respondent prepared after the Union obtained its second certification and which it submitted to the Union at the July 21, 1967, meeting, Respondent offered terms and conditions of employment less favorable to the employees than those it had tentatively agreed to grant in the course of the earlier negotiations. Thus, by the conclusion of the 1966 negotiations "Respondent's president, McKenzie, admitted at the hearing that Respondent had no basis for questioning the Union's majority status, but nonetheless suggested that the Union file a representation petition at the end of the certification year so as to prove its majority status anew. The Union thereafter decided that an election might afford it an advantageous opportunity to demonstrate its bargaining strength to Respondent, and accordingly filed the petition which ultimately resulted in the Union's recertification. "The letter stated, inter alia- As you may or may not know, we are currently paying $3 20 an hour in Tallahassee and Pensacola and $3.32 an hour in Atlanta This terminal did not receive the increase given these other three terminals this year. The law prohibits a unilateral pay increase . Also, a pension plan has been put in and is in effect at all terminals not represented by a union You have not been left out of the pension plan and you have not been overlooked in the raise to either intimidate, punish or threaten you. The presence of the union has cost your Company a large sum in legal fees, travel expenses and other costs. If the Union had not been present these sums could have been available for pay and fringe benefit increases By not granting you a pay increase or including you under the pension plan, we have just about been able to cover the additional expenses brought about by the presence of a union. 169 Respondent had agreed, inter alia , to Union requests for a 30-day probationary period for new employees, Memorial Day as a paid holiday, overtime pay after 48 hours, and the availability of arbitration to dischargees. But Respondent's July 21 draft retracted these items although they were of relatively little cost to it, by reverting to a 90-day probationary period, the exclusion of Memorial Day as a paid holiday, payment at overtime rates after 60 hours, and a prohibition against dischargees from utilizing arbitration. Respondent adhered to its "new" proposal on the probationary period throughout the first and part of the second of the three pre-strike negotiation sessions held with the Union before it agreed to modify the proposal in accord with its 1966 committments. It adhered to its less favorable paid-holiday proposal until the third meeting before it conceded that it had already granted Memorial Day as a paid holiday and that the currently proposed exclusion was in error. It never modified its current definition of arbitrable grievances and it does not appear that Respondent ever acceded to the earlier 1966 tentative agreement regarding overtime. Respondent's current contract draft also expanded upon the "management rights" clauses through which Respondent sought to reserve to itself a virtually complete and unreviewable right to change the amount and character of unit work; to determine at its discretion what constituted "just cause" for discharge; and, under other of its broadly defined managerial prerogatives and its restrictive limitation of arbitrable grievances, to remove most of the significant terms and conditions of employment from the area of negotiation and agreement."' Respondent refused to modify any of these management right proposals. By contrast, it adamantly insisted on a rigid no-strike clause.'s "As described by Respondent in its brief, "Respondent's '67 management rights proposal differed from its '66 proposal in that the right to sub-contract was broadened and a provision was added to the effect that the rights of management could not be impaired by arbitration." Respondent's definition of its "management rights" was contained in article III, and read as follows: The Company retains the sole right to manage its business, including but not limited to the rights to decide the location of its terminal; the method and processes to be employed at said terminal ; the number of types of equipment, machinery, materials and supplies to be used, operated , shipped or distributed ; the size and composition of the working force, plus the rights to hire, assign, lay-off, recall, transfer and promote employees, to maintain order and efficiency in its terminal operations, to set job requirements and determine the individual qualifications of all employees; to determine the starting and quitting times and the number of hours to be worked , to discontinue, transfer, subcontract or assign all or any part of its business operations; to control, regulate , or discontinue the use of supplies, machinery, equipment, vehicles and other property owned , used, possessed or leased by the Company, and all other rights and prerogatives including those exercised unilaterally in the past, subject only to such regulations and restrictions governing the exercise of these rights as are expressly provided in this Agreement " "The no-strike clause proposed, inter alia, that any discharge of striking employees would remain "final" irrespective of the ultimate determination of any claims that the strike action was provoked by management action in violation of contractual commitments or by contract in derogation of 170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In light of the knowledge Respondent had acquired of the Union's objectives during the 1966 negotiations, and the efforts Respondent then had made to frustrate agreement, we cannot view Respondent's "new" proposals as just hard bargaining We believe rather that Respondent deliberately meant to frame a contract proposal it could reasonably predict the Union would not accept, and by compelling discussion of matters seemingly settled in 1966, to prolong and to impede the conduct of the new negotiations This conclusion is buttressed by the peripheral acts of coercion committed by Respondent's supervisors during the period the current negotiations were going on We note, for example, that employees were explicitly told by supervisors that McKenzie "would close the doors" and "let the grass grow under the trucks before he would let [the Company] go union" and that the employees would be earning $3 30 per hour but for the presence of the Union The attitude of predetermined intransigence with which Respondent discussed its above-described proposals on matters of known importance to the Union was even more marked when the critical issue of wages was reached The first and only offer on wages which Respondent made in the 1967 negotiations [0-5-5 cents] contemplated less of a wage increase than any other offer Respondent had made in 1966 It was put on the bargaining table at the second meeting of the parties held on August 11 and as later events reveal, Respondent advanced this offer on a basis which in effect said "take it or leave it " Thus, in describing the results of the August 11 meeting in a notice to its employees posted 6 days later, Respondent quoted the terms of the offer, characterized it as the Company's "best offer for a 3-year contract," and after noting the Union's rejection, added "The Union has requested another meeting with the Company, for what purpose we do not know ' This hasty announcement that an impasse had almost been reached after only two bargaining sessions, can hardly be said to show that Respondent was willing to negotiate further with a view to narrowing the gaps to contractual accord 16 Indeed, as subsequent events proved, Respondent had in fact made up its mind by then that the Union would either have to take the contract as offered at the August 11 meeting, or have no contract at all These events establish that Respondent anticipated the Union's rejection of this contract offer and the Union's possible resort to strike action and considered the latter alternative as proferring to Respondent a means of ridding itself of any obligation to deal with the Union rights otherwise protected by the Act The Union was unwilling to yield to the no strike provision unless in return either ( 1) the arbitration forum was left open to it as a means of settling grievances arising from Respondents exercise of its defined management rights in areas of legitimate interest to the employees or (2) the proposed definition of management rights was cut down Respondent flatly rejected all Union contract proposals on these matters "Cf Peter Satori Co Ltd 175 NLRB No 6 As above indicated, one more meeting was held after the above "impasse" announcement This meeting occurredon August 31 and was followed, 1 week later, by the announcement of a strike At this August 31 meeting Respondent refused, except in only two minor respects, to revise any part of its contract offer " Although the Union presented counterproposals framed with a view to offering some settlement of the contract issues on a 1-year contract basis, rather than the 3-year basis on which the parties had previously been negotiating, Respondent flatly rejected the Union's counterproposals And, in our view, the attitude with which Respondent received, considered, and rejected the counterproposals plainly reflected its bargaining frame of mind Respondent failed to give any reason for its rejection other than that it was "not interested" in a 1-year contract because it was now in a "strong position" and therefore saw no "reason to make any changes in position at this time " These comments were scarely calculated to provide a proper basis for discussion, such as a good-faith bargaining requires is But, apart from the foregoing, a number of actions taken by Respondent immediately after the September 6 strike began, exposed Respondent's intent to deprive its employees of their right to bargain collectively First In offering and filling unit jobs after the strike, Respondent unilaterally eliminated any probationary requirement (theretofore established at 90 days) and increased the starting rate from $2 90 to $3 per hour As Respondent never offered the Union a contract incorporating such conditions at any time here relevant, its action necessarily had the effect of discrediting the Union's status in the eyes of the employees and plainly constituted the kind of unilateral action independently supporting the alleged violation of Section 8(a)(5) and (1) of the Act i9 Respondent contends, however, that the above changes were justifiable incidents of its economic need to operate during the strike It argaes in this respect that it could hardly be expected to attract applicants willing to cross a picket line by offering jobs conditioned on probationary service requirements But, although this argument may be plausible in another context, it is not supported by the objective facts here For, by Respondent's own admission, its advertisement for striker-replacements "One of the two revisions included the establishment of Memorial Day as a paid holiday Respondent admitted that as it had already given employees this paid holiday it had been in error in faiiing to include this item as part of the contract proposals "As was stated by the Court in N L R B v George P Palling and Son Co 119 F 2d 32 37 (C A 3) in explaining the operation of good faith bargaining there must be common willingness among the parties to discuss freely and fully their respective claims and demands and when these are opposed to justify them on reason When the proffered support fails to persuade or if for any cause resistance to the claim remains it is then that compromise comes into play "Cf N L R B v Crompton Highland Mills Inc 337 U S 217 and Kohler Co 128 NLRB 1062 1082 83 M. R. & R. TRUCKING CO. attracted more than 100 applicants for the approximately 25 full-time positions it had to fill. No showing was made that it could not have obtained all or any of the applicants it needed by conditioning hire on the basis of the normal 90-day probationary period or the theretofore prevailing $2.90 starting rate. In any event, Respondent does not explain away its undisputed failure to advise the Union at any time thereafter that it was willing to enter into a contract which wholly eliminated any probationary requirements and insured a permanent starting rate for all those in the unit of 10 cents per hour more than had been paid before the strike. Respondent's failure to make this offer to the Union was especially demonstrative of bad faith in light of the facts that: (1) Respondent was offered an opportunity to do so, when, pursuant to new efforts made by the Union to settle the strike, the parties met on November 22; and (2) Respondent was at all times here relevant aware that shortening of the probationary period had consistently been requested by the Union as part of its bargaining proposals. Second: On September 12, 1967, Respondent invoked the severe sanction of discharge against eight striking employees theretofore employed as "casuals," by notifying all of them that their jobs had been abolished and their employment terminated. Despite the plain language of these notices, Respondent would nonetheless have us conclude that the notices did not in fact accomplish discharges, but that they merely implemented Respondent's "temporary" decision to reduce its employee complement in the face of the strike. In support of this position, Respondent's witnesses testified that they had never in fact decided I permanently to abolish the "casual" job classifications, and had indeed filled these jobs with new employees sometime after September 12 and before any strikers applied for reinstatement. However, as Respondent never retracted the notices it issued to the striking "casuals" on September 12, the above-described testimony of its witnesses serves but to reinforce the conclusion that Respondent meant effectively to discharge these employees,20 and that it did so because they went on strike. Such discharge action is plainly violative of Section 8(a)(3) and (1) of the Act.21 Third: At a meeting of the parties called on November 22 by a Federal mediator at the Union's request, Respondent did not even pretend an interest in settling the strike or in discussing the terms of a contract. It not only advised the Union that it was unwilling to consider any Union proposal which "As was pointedly noted by the Ninth Circuit Court of Appeals in a similarly postured situation , "[N]o set words are necessary to constitute a discharge; words or conduct, which would logically lead an employee to believe his tenure had been terminated , are in themselves sufficient " N L R B v Cement Masons Local No 555. etc (Anderson-Westphall Co ). 225 F 2d 168, 172 "See Cincinnati Cordage and Paper Co, 141 NLRB 72, 76, and cases there cited. 171 looked to the reinstatement of striking employees, but, by its own admission, it flatly turned down the Union's invitation to state the terms, if any, on which Respondent was now prepared to contract with the Union, assertedly because Respondent believed it futile.22 Although the attitude Respondent thus evinced at this meeting was calculated to insure the meeting's futility and is sufficient to establish a lack of any intent to bargain in good faith, it is also illuminating to consider what seems to us to be the real reason prompting Respondent's stand. Though not expressly stated, the reason for Respondent's present attitude is clearly apparent from the record: Respondent felt that if a contract were avoided, the end of the certification year would provide it with the opportunity to rid itself of the Union once and for all. Thus, Respondent's officials had made it plain that they did not want the Union; that they believed Respondent had succeeded in breaking the strike;" and that as the strike replacements it had hired were not likely to be Union adherents, the time was ripe for a new election test. We note particularly in this connection, that Respondent filed a representation petition with the Board on December 18, 1967, promptly upon the expiration of the Union's second certification year but 4 weeks after the November 22 meeting. To conclude, the totality of the above conduct by Respondent at and away from the bargaining table plainly reveals a state of mind antithetical to the concept of good-faith bargaining and committed to the undermining of the Union and the collective-bargaining process in the eyes of its employees. Without giving conclusive weight to any one element, we find, upon due consideration of all relevant circumstances, that in conducting its negotiations with the Union, Respondent at all times here material was committed to, and utilized, a purposeful strategy of only going through the motions of bargaining without any bona fide intent to strive for a mutually satisfactory agreement, and thereby violated the duty to bargain in good faith as required by Section 8(a)(5) and (1) of the Act. We further find that the strike which began on September 6, 1967, is attributable, at least in part, to Respondent's failure to bargain in good faith and its firm and fixed intent to frustrate the collective-bargaining rights afforded its employees "In describing Respondent's stand at this meeting, Currie admitted that after Respondent rejected the Union's proposal , the Union asked if Respondent had anything to offer by way of an agreement , but that Respondent refused to make any offers assertedly because it had no intention of firing any of the poststrike employees to whom it had promised permanent jobs and felt it futile "to talk about" any economic proposals, unless the Union were willing to concede the "situation as the permanent replacements which I assumed that they weren't " "Currie's testimony alone shows that he in effect informed the Union at this meeting that Respondent believed that it had no ecomonic need to settle the strike or to contract with the Union. He told the Union, that although Respondent had incurred expenses related to the strike , "we had secured additional rights, and we're doing well, in that we had a good deal of business, although, of course, we lost some business because of the strike " 172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by the Act. "' We hold , accordingly , that the strike was caused and prolonged by Respondent' s unfair labor practices.25 C. Respondent's Denial of its Striking Employees' Reinstatement Requests Respondent's refusal to honor reinstatement requests made by, or on behalf of, its striking employees some months after the strike's commencement was specifically alleged as violative of Section 8(a)(3) and (1) of the Act. This allegation was based on the theory we have sustained above, that the strike was at all times relevant an unfair labor practice strike. The complaint, as litigated at the hearing, alleged that striker Harvey Boatright made a personal request for reinstatement on or about January 8, 1968, which Respondent refused to honor on the ground that it had permanently replaced Boatright; that the Union made an unconditional request for reinstatement on behalf of all strikers on March 5 or 11, 1968; that Respondent refused to honor the latter request on the similar ground that it had hired permanent replacements for each of the strikers' jobs and had no vacancies; and that Respondent's refusal of the reinstatement requests of these unfair labor practice strikers therefore violated Section 8(a)(3) and (1) of the Act. The relevant facts bearing on these 8(a)(3) allegations are substantially undisputed. They are as follows: 1. Boatright Boatright, like the other employees, went on strike on September 6, 1967. He returned to work for 1 day on September 11, 1967, and then rejoined the strike. On September 14, Respondent hired a replacement for Boatright. According to the testimony of Respondent's terminal manager, Raulerson, Boatright called Raulerson several weeks later and stated that he was returning to work, Raulerson replied that he would have to check whether Boatright could be rehired, and he then called Currie. Currie advised Raulerson that as a permanent replacement had been hired for Boatright and as there were no vacancies at the terminal, Respondent had no obligation to rehire him. Raulerson called Boatright's home and left a message with Boatright's wife that Boatright could not be rehired. Raulerson did not hear from Boatright again until the early part of January 1968, "Where, as here, there is substantial evidence of a nexus between an Employer's unfair labor practices and a strike, the fact that striking employees may also have been motivated in part by economic interests in supporting the strike does not preclude a finding that the strike was an unfair labor practice strike in character . Cf Wittock Supply Company, 171 NLRB No. 33 "General Drivers and Helpers Union , Local 662, International Brotherhood of Teamsters (Rice Lake Creamery Co) v. N L R B, 302 F.2d 908, 911 (C.A D.C ). when Boatright called and informed him that he was filing an unfair labor practice charge with the Board. Boatright did thereafter file a charge with the Board. This charge, dated January 23, 1968, alleged that Respondent denied Boatright reinstatement in violation of 8(a)(3). When Respondent received notice of Boatright's charge, Currie wrote a letter to a Board agent dated February 12, 1968, stating, inter alia: "[T]he facts on the 8(a)(3) charge filed by Mr. Boatright does not appear to be in any serious conflict and the matter appears to be a question of law. The question as I see it resolves itself to whether or not an employer who has permanently replaced an economic striker, who later indicates his desire to return to work, has an obligation to keep in touch with or notify said striker . . . when a job becomes available [Emphasis supplied]." In the same letter Currie further stated that Respondent would be willing to consider Boatright for an opening if he was "interested in applying again." Based upon the foregoing, we find that although the record does not establish the exact date in January on which Boatright telephoned Raulerson to request his immediate rehire, Boatright's telephonic request was sufficient to establish Respondent's obligation to reinstate him, and that his request was made during the "early part" of January 1968. As Respondent admittedly rejected Boatright's application on the clearly unsupportable legal ground that the job was occupied by a permanent replacement, it follows that Respondent's failure and refusal to rehire Boatright was in violation of Section 8(a)(3) and (1) of the Act.26 2. The remaining strikers Following the termination of the November 22 meeting described above, the parties had no further communication with each other until about March 1, 1968,27 when Union representative Carpenter contacted Currie for the purpose of settling the strike. Currie informed Carpenter that there was some possibility of working out a settlement regarding the reemployment of some of the strikers, and asked Carpenter to find out how many strikers wished to return to work . The next day Carpenter called Currie and told him that between 22 and 25 men wished to resume employment . Both then discussed the possibility of returning some strikers to work and placing the remainder on a preferential list if the strike were settled . Subsequently, by letter dated March 5, Union President Turner informed Respondent; ". . . we are ready to resume "The exact day on which Boatright applied for reinstatement is a matter which can be established at the compliance stage of this proceeding and is relevant to a determination as to the time when, in accord with our remedial order herein, Respondent's backpay obligation to Boatright shall have commenced to run in the circumstances of this case, we find, however, that in no event shall backpay be established as running from a date before January 8, or subsequent to January 15, 1968. "Meanwhile, on January 2, the Union filed the charges initiating this proceeding M. R. & R. TRUCKING CO. negotiations with you, and are hereby requesting that all the people who are on strike be returned to their jobs." Currie in turn asked that the Union clarify its March 5, 1968, letter. In response, on March 11, the Union wrote Respondent, that, inter alia , it was "requesting unconditionally, the reinstatement of the strikers . . . to their former or equivalent jobs" and that it was discontinuing its strike and picket line at 8 a.m.on Wednesday, March 13, 1968. Shortly after receiving this letter, Currie spoke to Turner by telephone and told him that it was impossible to settle the strike on the basis of the previous discussion he had had with Carpenter. In disclaiming that its refusal to reinstate the strikers violated Section 8(a)(3) and (1) of the Act, Respondent mainly relies on a contention we have already rejected as untenable - namely that the strikers were economic strikers who had been permanently replaced. In addition, Respondent also claims special justification for refusing the Union's March 11 reinstatement request because: (1) it had an established policy requiring that employment applicants personally appear at its plant , for interviews as a condition of employment; and (2) the Union's blanket request was not a valid "unconditional" request because it sought the reinstatement of all strikers, some of whom Respondent was not obligated to reinstate in view of their strike misconduct. We consider each of these contentions separately. There is no evidence that the "personal interview" policy on which Respondent would justify its refusal to rehire the strikers was applicable, or had in fact ever been applied, to any individual other than one seeking initial employment with Respondent.28 Nor is there any showing, in any event, that this policy was communicated to the Union or its employees. It appears, rather, that Respondent's contention is an afterthought. In these circumstances, and as the Union was unquestionably the authorized representative of the striking employees on whose behalf it requested reinstatement,29 we find no merit in that part of Respondent's defense based on its personal interview policy. We also find without merit Respondent's contention that by making a blanket reinstatement request the Union was in effect, making an "all or none" request, viz one serving notice on Respondent that in the event it chose to deny reinstatement to strikers it deemed guilty of strike misconduct and to offer work only to the remainder, the strike would not be abandoned.30 There is nothing in the record which supports Respondent's contention. On the "Respondent's striking employees did not , of course, lose their employee status as a consequence of their engagement in the strike . See Sec 2(3) of the Act "It is well established that a union representing strikers may validly make a blanket unconditional application on behalf of the strikers for reinstatement to their jobs. See, for example , Elmira Machine and Specialty Works. Inc. 148 NLRB 1695, 1702-03. 173 contrary, as the testimony of Respondent's own witnesses reveals, the Union had responded affirmatively to the tentative suggestion Respondent made in early March that perhaps "something" could be worked out by the parties so that some of the strikers could come back at that time." We conclude, accordingly, that Respondent unjustifiably refused to honor the reinstatement request made by the Union on behalf of its striking employees and thereby violated Section 8(a)(3) and (1) of the Act.32 In framing a remedy for the Section 8(a)(3) and (1) violations found above, we have given due consideration to evidence of strike misconduct which Respondent adduced with respect to 2 of the 26 strikers named in the complaint, namely, Sowell and Huskey. Respondent established that both Sowell and Huskey were adjudged by the Circuit Court of Duval County, Florida, to be in contempt of that Court's previously issued injunction. More specifically, the Court found that Sowell had threatened nonstriker John Plummer at the latter's house and also threatened striker-replacement Edward Tukes at Respondent's terminal with violence and physical harm. As to Huskey, the Court found that he threatened striker-replacement Clifford Strickland with violence and attempted to cause a collision while Strickland was driving one of Respondent's trucks. The foregoing evidence establishes that (1) Respondent had reasonable basis to believe Sowell and Huskey committed the acts of strike misconduct described by the Court's decision; and (2) these acts of misconduct were of a serious enough nature to excuse Respondent from any remedial duty to reinstate Sowell and Huskey." Accordingly, as General Counsel adduced no countervailing evidence, we shall exclude Sowell and Huskey from the provisions of our reinstatement and backpay order.34 "Beaver Bros Baking Co ,Inc , 171 NLRB No. 98, a case Respondent cites in support of its position , is wholly distinguishable There, the employer responded to a striking union's blanket reinstatement letter by offering to take back all strikers other than certain named strikers who had been guilty of strike misconduct and on whom the employer thereafter served termination notices The union thereupon told the employer that none of the strikers would come back unless the employer agreed to take all with no exception The Board held that in such circumstances the union had attached to its reinstatement offer a condition which Respondent did not have to honor "Currie testified that, in the course of his preliminary discussions with the Union on the matter of striker-reinstatement, he mentioned the names of four strikers whom Respondent was unwilling to reinstate in any event because of strike misconduct - namely, Mosely, Rice, Huskey, and Sowell But Currie did not claim, and the record does not otherwise show, that the Union insisted upon the reinstatement of any of these named strikers "Having found that Respondent violated Section 8 (a)(3) by refusing to reinstate unfair labor practice strikers, we find it unnecessary to pass upon the applicability of the principles set forth in N L R B v Fleetwood Trailer Co, 389 U S. 375, and The Laidlaw Corporation , 171 NLRB No 175, enfd 414 F.2d 99. "Cf Davis Wholesale Co, Inc, 165 NLRB No 40 "Under the rule of proof enunciated in Rubin Bros Footwear, Inc, 99 NLRB 610, and approved by the Supreme Court in N.L R B v Burnup & 174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, we shall order it to cease and desist from the unfair labor practices found and to take the affirmative action as set forth below which we find will effectuate the policies of the Act. As we have found that Respondent refused to reinstate Harvey D. Boatright in violation of Section 8(a)(3) and (1) of the Act, we shall order that Respondent offer to Harvey D. Boatright immediate reinstatement to his same or substantially equivalent position with full restoration of seniority and other benefits he would have enjoyed had he not been discriminated against. Respondent shall also be required to make Harvey D. Boatright whole for any loss of income he may have suffered as a result of the discrimination against him. As noted above at footnote 26, such backpay shall in no event be established as running from a date before January 8, 1968, or subsequent to January 15, 1968. As Respondent has discriminated against the unfair labor practice strikers named in the attached Notice marked "Appendix" by discharging some of the strikers and by refusing to reinstate the others upon their application, we shall order Respondent to offer them immediate reinstatement to their former or substantially equivalent positions without prejudice to seniority or other rights and privileges, discharging if necessary any replacements. Respondent shall also be required to make these strikers whole for any losses in wages they may have suffered as a result of the discrimination practiced against them since March 11, 1968, the date of their unconditional application for reinstatement." Backpay shall be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, plus interest at 6 percent per annum as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Having found that Respondent did not bargain in good faith, we shall order it to bargain collectively with the Union with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any understanding reached. Sims, 379 U.S. 21, the burden of proving that Sowell and Huskey did not in fact commit the acts of misconduct described above rested with the General Counsel once Respondent established, as we have found , that it had reason to believe that they committed the acts in question. Member Brown would find that the acts of misconduct attributed to Sowell and Huskey are insufficient to support denial of their right to reinstatement and backpay. "In light of the fact that the "casuals " were on strike at the time of their discharge and did not indicate a desire to return to work until March 11, 1968, when they applied for reinstatement , we shall, in accordance with well-established Board principles , refuse to award them backpay while they were withholding their services irrespective of the fact that they were discharged. Cf. Sea- Way Distributing. Inc., 143 NLRB 460 Member Brown, for reasons stated in his dissenting opinion in Sea-Way Distributing, would grant backpay from the date these strikers were unlawfully discharged. Because the violations of Section 8(a)(1) and (5) found herein are of the type that strike at the very heart of the Act, we shall also order Respondent to cease and desist from in any manner infringing upon the exercise of employee rights. N.L .R.B. v. Entwistle Mfg. Co., 120 F.2d 532 (C.A. 4); California Lingerie Inc., 129 NLRB 912, 915. CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By interrogating employees regarding their union membership and by threatening to shut down operations rather than to recognize the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. By discriminatorily discharging the "casual" employees because of their activities on behalf of the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 5. By refusing to reinstate unfair labor practice strikers upon their unconditional applications for reinstatement, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) and (1) of the Act. 6. By refusing to bargain collectively in good faith with the Union, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Respondent, M.R. & R. Trucking Company, Jacksonville, Florida, its officers, agents, successors, and assigns, shall take the following action: 1. Cease and desist from: (a) Interfering with, restraining, and coercing employees in the exercise of their Section 7 rights by interrogating them as to their union sentiments and by threatening to shut down Company operations rather than recognize the Union. (b) Discouraging membership in the Union or any other labor organization, by terminating the employee status of unfair labor practice strikers or by denying them reinstatement upon their unconditional application to return to work, or by in any other manner discriminating against an employee in regard to his hire, tenure, or other terms and conditions of employment. (c) Refusing to bargain collectively in good faith with the Union as the exclusive bargaining M. R. & R. TRUCKING CO. representative of all its employees in the following appropriate unit: All city pickup and delivery drivers, dockmen, and helpers employed at Respondent's Jacksonville, Florida, facility excluding office clericals, over-the-road drivers, salesmen, professional employees, guards, and supervisors as defined in Section 2(1) of the Act. (d) In any other manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization, to form, join, or assist the Union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request bargain collectively in good faith with the Union as the exclusive bargaining representative of the employees in the heretofore described appropriate unit and embody any understanding reached in a signed contract. (b) Offer to the employees listed in the attached notice marked "Appendix" immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered as a result of the discrimination practiced against them in the manner set forth in the section of this Decision entitled "The Remedy." (c) Notify the above employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in .accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary in determining the amount due as backpay. (e) Post at its Jacksonville, Florida, terminal copies of the attached notice marked "Appendix."36 Copies of said notice, on forms provided by the Regional Director for Region 12, shall, after being duly signed by Respondent's authorized representative, be posted by Respondent immediately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and be maintained by it for 60 consecutive days. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 12, in writing, within 10 days from the date of this 175 Decision and Order, what steps Respondent has taken to comply herewith. "In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals Enforcing an Order " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order 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 NOT interrogate our employees as to their membership in Truck Drivers, Warehousemen and Helpers Local Union No. 512, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT threaten to shut down Company operations rather than recognize the above-named Teamsters' local. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. WE WILL NOT discourage membership in the above-named Teamsters' local or any other labor organization of employees, by discriminating in regard to the hire and tenure of employment or any term or condition of employment because you engage in strikes or other forms of concerted activity. WE WILL NOT refuse^to bargain'in good faith with the above-named Teamsters' local during the course of the present collective-bargaining negotiations. WE WILL offer Mather Anderson, Frederick Avery, Edward Bell, Harvey D. Boatright, W. F. Boatright, Leland Braswell, Henry Burnsed, James Burnsed, Clyde Cothern, James Frederick, William Guess, Jack Harris, James Holliman, J. W. Johns, Charles Lynch, George Martin, Murray McDanial, Bobby Pringle, William Ratliff, Jr., James Smith, Lovett Taylor, Jr., Robert Thorton, Bobby Turner, and Richard Williams reinstatement to their former positions with all the rights and backpay due them. WE WILL notify the above -named employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. WE WILL, upon request, bargain collectively in,good faith with the above-named Teamsters' local as the exclusive representative of all employees in the bargaining unit described below and, if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All city pickup and delivery drivers, dockmen, and helpers employed by the Employer at its terminal in Jacksonville, Florida, excluding office clericals, over-the-road drivers, salesmen, professional employees, guards, and supervisors as defined in Section 2(1) of the Act. All our employees are free to join or assist the above-named or any other labor organization , to bargain collectively through representatives of their own choosing, 176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all of such activities. M. R. & R. TRUCKING COMPANY (Employer) Dated By (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board' s Regional Office, Room 706 Federal Office Building 500 Zack Street, Tampa, Florida 33602, Telephone 813-228-7711. TRIAL EXAMINER'S DECISION WILLIAM J. BROWN, Trial Examiner: This proceeding under Section 10(b) of the National Labor Relations Act, as amended, hereinafter referred to as the "Act," came on to be heard at Jacksonville, Florida, on April 29-May 2, 1968. The charge in Case 12-CA-4068 was filed on January 2, 1968, by the above-indicated labor organization, hereinafter referred to as the "Union," and the consolidated complaint herein was issued April 4, 1968, by the General Counsel of the National Labor Relations Board, acting through the Board's Regional Director for Region 12. It alleged, and Respondent's duly filed answer denied, the commission of unfair labor practices defined in Section 8(a)(1), (3), and (5) of the Act. At the hearing the parties appeared and participated as noted above with full opportunity to present evidence and argument on the issues . At the conclusion of the hearing the General Counsel argued orally on the record of the hearing; the Respondent has filed a written post-hearing brief and the oral and written arguments have been fully considered. On the entire record herein and on the basis of my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT COMPANY The pleadings and evidence establish that the Company is a Florida corporation with its principal office and place of business in Crestview, Florida, and engaged as an interstate common carrier of freight by motor vehicle, maintaining terminals at various locations in Florida, Georgia, and Alabama including a terminal at Jacksonville, Florida, which is involved in the instant proceedings. In the conduct of its carrier operations the Company annually receives gross revenue in excess of $50,000 and is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE. LABOR ORGANIZATION INVOLVED The pleadings and evidence establish that the above-indicated Union is a labor organization within the purview of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction to the Issues On October 29, 1965, the Union was certified' by the Board as the statutory representative of employees of the Company's Jacksonville terminal engaged as city pickup and delivery drivers, dockmen and helpers, excluding office clericals, over-the-road drivers, salesmen, professional employees, guards and supervisors as defined in the Act. At material times the total number of employees in the foregoing classifications was about 30 including a group of part-time workers known as "casuals." The supervisory staff included W. Guy McKenzie, president of the Company and in overall charge of labor relations; Preston Raulerson, manager of the Jacksonville terminal; James O'Quinn, dispatcher and James Arnold, warehouse foreman.' Meetings between Company and union representatives for the purpose of collective bargaining were held on various dates between January 1966 and November 22, 1967. The principal issue in the case is whether, in the period July 2, 1967, until January 2, 1968, the Company refused to bargain collectively in good faith and in a sincere attempt to reach agreement with the Union or, as alleged by the General Counsel, engaged in mere surface bargaining with the intention of avoiding the execution of any genuinely bargained agreement. The complaint also alleges an unfair labor practice in the Company's action in September 1967 by (1) unilaterally abolishing an established 90-day probationary period for new employees and increasing the starting rate from $2.90 to $3 per hour; (2) unilaterally abolishing the classification of casual employees, and (3) posting a notice to employees on August 17, 1967, concerning the progress of the bargaining. The case also involves the allegation of the General Counsel and the denial of the Company that a strike which commenced September 6, 1967, was caused and prolonged by the Company's unfair labor practices and that the Company's refusal to reinstate employee Harvey D. Boatright, a striker who unconditionally offered to return to work on January 8, 1968, and 25 other named strikers who unconditionally offered to return to work on or about March 5 and it, 1968, constituted unfair labor practices defined in Section 8(a)(3) of the Act. Finally it is alleged by the General Counsel and denied by the Company that the latter engaged in acts of interference, restraint and coercion within the scope of Section 8(a)(1) of the Act by (1) interrogation and threats on the part of O'Quinn in July 1967; (2) warning on the part of Arnold in August 1967, and (3) threats and interrogation on the part of Raulerson in August 1967. B. Interference, Restraint, and Coercion 1. James O'Quinn: interrogation and threats Jack Harris, hired by the Company as a casual warehouse employee about 6 weeks prior to the September 6, 1967, strike in which he participated, testified that some time shortly prior to the strike O'Quinn, after praising his work, asked him if he belonged to the Union and thereafter told him that he did 'The Union was recertified December 13, 1966. 'Arnold's employment with the Company ran from February 1966 until August 15, 1967. M. R. & R. TRUCKING CO. not think the Union would succeed in organizing employees of the Company. Harris further testified that about 2 weeks prior to the strike he and employee Martin met O'Quinn at a restaurant in Lake City and, after some preliminary comment, O'Quinn said that McKenzie would close the doors and let the grass grow under the trucks before he would let the Company go union. O'Quinn denied questioning Harris as to his union membership or sympathies and with respect to the Lake City meeting testified that in reply to a question he merely expressed his personal opinion that McKenzie would not sign a union contract. I was impressed with the demeanor of Harris on the witness stand and credit his account of the two conversations.' In accord with this determination I find that O'Quinn interrogated Harris concerning his union membership and threatened him by, the statement that McKenzie would close down before he would recognize the Union. By these statements the Company engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 2. James L. Arnold: threats The complaint alleges that some time in August 1967, the exact date being unknown, Arnold, whose supervisory status is admitted, warned an employee that the Company would close or sell its terminal before it would sign a union contract. James W. Johns, a pickup and delivery employee and a member of the Union's negotiating committee in 1967, testified that some time in July or August of that year Arnold brought up the subject of the Union and when Johns stated that McKenzie had signed with the Union at its Tampa terminal, Arnold denied this and said that McKenzie would never sign a union contract and would close the doors first. Arnold, whose employment at the Company terminated August 15, 1967, testified that some time early or mid-summer of 1967 Johns asked him if he thought McKenzie would sign a contract with the Union and that he replied that, in his opinion he did not think McKenzie would sign . I found Arnold a credible witness and credit his account of the conversation to the effect that Johns requested his opinion and received it. I also agree with the Company that the evidence fails to establish that this conversation occurred on or after July 2, 1967, the limitation date imposed by Section 10(b) of the Act and I shall recommend dismissal of the allegations respecting threats through the agency of Arnold. 3. Preston Raulerson: interrogation and "Notice" As amended at the hearing, the complaint alleges in paragraph 11(c) that Raulerson, about the last week in August 1967, asked an employee if he belonged to the Union and said that employees were trying to get a union in the terminal. Section 11(d) of the complaint also charges Raulerson with an unfair labor practice within the scope of Section 8(a)(I) by posting a "Notice to All Employees" on the terminal bulletin board on August 17, 1967, commenting on the course of the bargaining.' 'The Company asserts that a denial by Harris that he ever received a registered letter sent him regarding return to work after the strike is a basis for finding him not credible . Harris' testimony in this regard is only that he did not believe that he received the letter in question which was signed for by his sister-in-law. I see no necessary reason in this situation for discrediting Harris. 'The posting of this notice is also alleged as an act of refusal to bargain. 177 Jack Harris testified that one afternoon, evidently between the time of his hire in mid-July 1967 and the strike of September 6, 1967, Raulerson asked where he had worked previously and then asked how he felt about the Union. Raulerson denied this and testified that he followed instructions of counsel not to discuss the Union with employees. I credit Harris' account of the matter and find that Raulerson questioned as to how he felt about the Union thereby engaging in an act of interference, restraint, and coercion within the scope of Section 8(a)(1) of the Act. With respect to the August 17, 1967, notice to employees, the evidence indicates that, on advice of counsel , Raulerson posted it on the bulletin board in the terminal . Raulerson testified, and I credit him in this, that the posting of the notice was prompted by his awareness of employee discussions in the terminal which were interfering with the progress of the work. The notice in question reads as follows: NOTICE TO ALL EMPLOYEES OUR LAST MEETING WITH THE UNION WAS ON AUGUST 11, 1967. AT THAT TIME THE COMPANY MADE ITS BEST OFFER FOR A THREE YEAR CONTRACT. THE OFFER WAS OF .00-.05 CENTS-.05 CENTS PER YEAR OVER A THREE YEAR PERIOD. THERE WERE NO MATERIAL. CHANGES IN THE FRINGE BENEFITS OFFERED. THERE WAS NO DEMAND OR OFFER TO INCLUDE THE COMPANY PENSION PLAN IN THE CONTRACT. THE UNION HAS REQUESTED ANOTHER MEETING WITH THE COMPANY, FOR WHAT PURPOSE WE DO NOT KNOW. WE WILL KEEP YOU INFORMED. YOURS VERY TRULY, (s) PRESTON A. RAULERSON TERMINAL MANAGER It is not contended that the Notice misrepresented the state of the bargaining nor is there any necessary implication that the "best offer" was intended to preclude further bargaining or intended to bypass the Union. In the circumstances I agree with the Company that the posting of the notice did not amount to an unfair labor practice particularly in view of the provisions of Section 8(c) of the Act.' C. The Refusal To Bargain And The Answer Denies The Complaint alleges and the Answer denies that from and after May 31, 1967 the Company refused to bargain collectively with the Union. While under the provisions of Section 10(b) any unfair labor practice in this regard must be shown to have been engaged in subsequent to July 2, 1967 it is established that Section 10(b) constitutes a statute of limitations and not a rule of evidence. Accordingly, it appears necessary to examine the entire course of events relating to the bargaining for the purpose 'These same considerations would also require dismissal of the allegations that the posting of the notice also constituted a refusal to bargain within the purview of Sec. 8(aX5) of the Act. 178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of appraising the significance of events on and after July 2, 1967. Following the Union's certification on October 29, 1965 there appears to have been at least one preliminary meeting in 1965 between company and union representatives but the first full fledged bargaining session appears to have been that of January 1966 at which the Company proposed a form of agreement (Resp. Exh. 2) containing the Company's proposals on numerous matters not including wage rates.` The evidence, particularly the testimony of Attorney Currie, principal negotiator for the Company, and of J. M. Floyd who represented the Union in negotiations during the period from December 1965 until October 1966 indicates that some 15 negotiating sessions were held in that period. There is no evidence that the Union at any time requested more frequent c more extended meetings in that or any subsequent period than those actually held. It appears that full fledged bargaining on wage rates first occurred at a meeting held on March 21, 1966, although the testimony of Currie, which I credit, indicates that the Company had previously made a wage offer of an increase of 6 cents per year for each year of a 3-year agreement. Currie's testimony is that at the March 21, 1966, meeting the Company made a slight betterment in its wage offer by increasing it to 7 cents-6 cents-6 cents for a 3-year agreement. At that time the union representatives, Parker and Mathis, rejected the Company's offer and proposed an increase in wages of 10 cents per year for each year of a 3-year agreement. Currie's testimony is to the effect that in discussing wages during the course of this meeting the union representatives pointed out that the Union had recently signed a contract with a Jacksonville cartage company on the basis of 10 cents per year for a 3-year term and therefore could not accept less from the Company. Soon after the March 21, 1966, meeting Currie encountered Parker in travel and Parker indicated that he might be willing to reconsider the 7-6-6 proposal to which Currie stated that the Company had not been fully satisfied with its own offer and since it had been declined at the meeting it was no longer open for acceptance. By letter of March 29, 1966, Currie confirmed that the offer was not open. As a consequence of the Company's position respecting the wage offer a charge of refusal to bargain was filed by the Union but withdrawn early in April 1966. At an April 1966 meeting Parker, the principal union representative in the early bargaining sessions, informed Currie that since the Company would not agree to the Union's demands the Union would organize all the other terminals and shut the Company down by striking when it would hurt. Representation petitions were subsequently filed covering at least five other terminals and the Company advised the Union that it would withhold any new wage offer pending the termination of the multiple representation and complaint proceedings in which the Company became involved as a result of union petitions or charges.' At a meeting in June or July 1966 the Company expressed a willingness to sign a contract known as the "Miller Tank" contract which the Union had recently negotiated with that concern and with a 5-year term with `At a subsequent meeting on July 21, 1967, the Company submitted a different draft agreement, and the bargaining thereafter appears to have proceeded with that draft (G.C Exh 2) as a basis 'The Union filed representation petitions for five other terminals, a number of charges filed by the Union were withdrawn after investigation annual increases of 6 cents. There is some question as to whether or not the Company's offer was conditioned on the Union's ceasing organization at other Company terminals and in finding that the Company did so condition its offer to accept the Miller Tank contract with annual increases for a 5-year term I credit the testimony of J. M. Floyd who attended the meetings on behalf of the Union. I also credit his testimony that in rejecting the Company's offer, Parker, for the Union, indicated that the Union's rejection was based not on the requirement it cease organization but on dissatisfaction with the duration clause and the size of the increases. On September 6, 1966, the parties met in the offices of the FMCS representative in Jacksonville, Mr. Nathan Kazin. Present for the Union were Union Officials Parker and Carpenter and employee William Guess; the Company representatives were Attorney Currie, McKenzie and Raulerson. Carpenter testified that his attendance was merely that of an observer and he did not recall the substance or details of the discussion; Parker and Guess did not testify. Currie testified that agreement was reached on the duration of the probationary period (30 days), premium pay for holiday work and several other items. According to his testimony the Union indicated a willingness to accept a 5-cent increase under a 1-year agreement or alternatively increases of 7 6, and 6 cents annually for a 3-year agreement. The Company expressed disinterest in a 1-year agreement and asserted that it was in a stronger position than previously when it had rejected a comparable union wage proposal for a longer term agreement. Parker then withdrew the Union's wage proposals, and the parties agreed to meet again. On October 6, 1966, the parties met again in the offices of the FMCS. According to the testimony of Floyd, not substantially disputed by Currie, the Company refused to make any new offer on wages because the certification year was due to expire and it suggested the filing of a representation petition. An election was conducted on December 5, 1966, and a new certification was issued about December 13, 1966. At about this time, in connection with an offer by Currie to resume negotiations, Carpenter stated that the Union would not protest any Company pay increase to unit employees. He made no request for resumption of negotiations, however, until May 31, 1967, when Carpenter wrote Currie asking a date for resumption of the bargaining sessions. Currie replied, suggesting July 20 or 21, in view of his long standing vacation plans. The Union made no protest of the delay in resumption of the bargaining. The parties met for bargaining on July 21, 1967, at the Thunderbird Motel in Jacksonville. The Union was represented by Assistant Business Agent Carpenter and employee J. W. Johns; Company representatives were Attorney Currie, McKenzie and Raulerson. It is undisputed that the July 21, 1967, meeting opened with the proposal from Carpenter that the parties agree on the recently negotiated Teamster National Master Freight Agreement for a 3-year term with increases of 25 cents-15 cents-15 cents. Carpenter did not have available copies of the National Master Agreement and the parties negotiated on the basis of the Company's written proposal, complete except for wage proposals. (G.C. Exh. 2) At the outset Carpenter asked for and was allowed an hour to study the Company's proposal because of his unfamiliarity with contract provisions and bargaining. The meeting opened at 10 a.m., approximately 45 minutes was taken by Carpenter's study and consultation, and adjourned at about 1:30 or 2 p.m. In the relatively few M. R. & R. TRUCKING CO. 179 hours available the parties discussed numerous clauses and reached agreement on a substantial number (some of which were the fruit of prior bargaining ), the Union passing however on a substantial number of provisions contained in G.C. Exh. 2. Carpenter testified that agreement was reached on article I and II of G.C. Exh. 2 as well as on articles V, VI, VIII, IX, X, XII, XIII, XIV, XVII, XIX, XX, XXI, XXIII, XXV, XXVI, XXVII, XXIX (Currie accepting a union proposal for the Union's benefit), XXXI (Currie accepting a union change), and XXXII. It does not appear that Company made a wage proposal at the July 21, 1967 meeting; nor does it appear that the union representatives voiced objection to the absence of one. The July 21, 1967 meeting ran from 10 a.m. until 2 p.m. at which time the parties agreed to recess until July 27, a date which later was changed by mutual agreement to August It. At the August 11, 1967, meeting the Union submitted written proposals on a management rights clause and a grievance procedure . Carpenter testified , and I credit him in this regard , that the Union made a wage proposal of 25-15-15 for a 3-year agreement and that the Company's counterproposal was for 0-5-5 for such an agreement. There was extended discussion of the Company's proposed agreement on noneconomic matters and agreement was reached on several subjects. The Union protested the fact that the Company' s wage offer was below its previous wage offer and Currie responded that the lower offer was justified by Company costs incurred as a result of Parker's activity in organization at other terminals of the Company. Carpenter testified that in the course of the August l 1 meeting the discussion proceeded mainly on the basis of the Company proposed draft of an agreement, (G.C. Exh. 2), there were one or two caucuses and the parties were not too far apart on language . The meeting adjourned sine die apparently after the Union's rejection of the Company's wage offer On August 18 Currie wrote Carpenter proposing resumption of meetings on August 31 and the parties met again on that date. McKenzie and Carpenter agree in their testimony that the August 31 meeting was short, lasting only a couple of hours with a caucus sandwiched in. Again the basis of discussion was the Company's proposed draft agreement and items therein not previously settled were considered . Carpenter testified that in this meeting he informed Currie that with the sole exception of the items relating to grievances and management rights the Company's agreement was acceptable to the Union on the basis of a 1-year term with a 15 cents wage increase. Currie rejected the idea of a 1-year agreement . Carpenter conceded that he informed Currie that he would submit the Company's proposal for a 3-year contract at 0-5-5 to the employees . Nothing more was heard from the Union however until the strike and picketing which occurred on the morning of September 6. On that same date the Company wrote the Union withdrawing its contract proposal. On September 7, 1967, the Company wrote striking employees directing them to report for work on Monday, September 11 at their usual reporting time, advising them that if they failed to report permanent replacements would be hired in their positions .' The Company advertised in Jacksonville on Sunday , September 10 for permanent replacements at a rate of $3 per hour . On September 11, only two strikers (Plummer and H . D. Boatright) reported for work , Boatright returning only for 1 day. The Company then proceeded to hire replacements for the 21 strikers in the reverse order of seniority, and on September 12 sent telegrams to each of the 21 strikers notifying them of their permanent replacement. By September 14 the last three senior employees had also been replaced by permanent replacements and were so notified by the Company on September 14, 1967. At about this time the Company, anticipating a slowdown of business as a consequence of the strike determined that there would be no need for casual (part time) workers and each of the eight casual employees then on the payroll were notified by the Company about September 12 that their jobs had been abolished and their employment terminated. The complaint alleges that the strike was an unfair labor practice strike and that the refusal to reinstate on unconditional application the strikers listed in the complaint constituted unfair labor practices defined in Section 8(a)(3) of the Act. While it is true that 3 years of bargaining without agreement may ordinarily create some doubt as to the sincerity of purpose of one or both of the parties involved, I cannot say that the evidence in this case preponderates in favor of the conclusion that the responsibility for the failure to reach agreement lies in a failure to meet and negotiate in good faith and with a sincere purpose to attempt to reach agreement on the part of the Company. As the General Counsel emphasized in oral argument this is a case involving an attempt to reach a first agreement at the Jacksonville terminal , the result being that the bargaining had literally to be "from scratch." The processes of bargaining were hampered by changes in the identity of union negotiators and by frequent and protracted delays not attributable solely to the fault of the Company. While it is true that some of the Company's wage offers were relatively small, it is also true that some of the Union' s demands were relatively large. The evidence indicates that the Company was subsequently resistant to wage demands larger than 6 or 7 cents per hour for a multiyear term but the Act plainly prohibits a finding of refusal to bargain on the sole basis of failure to make a concession . It does not appear that the Company refused reasonable requests to meet or failed to devote sufficient time to the actual negotiating sessions. The evidence seems rather to suggest that if there is any single cause of the failure of the bargaining process here it most probably is the changes of identity of the union negotiators and their failure to press for more frequent and more extended discussions . Viewed in its totality the evidence does not appear to me to indicate by a preponderance that the Company refused to meet and negotiate in good faith and in sincere effort to reach agreement . I shall accordingly recommend dismissal of the allegations of section 10 of the complaint relating to refusal to bargain on the part of the Company With respect to the allegations of refusal to bargain in the nature of (1) unilateral abolition of the job classification of casual employees and of the 90-day probationary period for new employees and (2) unilateral increase of starting rate for new employees from $2.90 to $3, the evidence fails to establish that there was a duty to bargain with the Union on these matters in the circumstances . The Company as a licensed common carrier was under Governmental requirements to furnish carriage services as well as being under the economic pressure of facing loss of business. Its action appears to be 'Between September 7 and I1 temporary replacements from other Company terminals worked in place of the strikers. 180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nothing more than a response to the emergency conditions surrounding it and in fact it does not, appear that a classification was abolished but that the jobs were eliminated temporarily in response to the emergency conditions. As to the elimination of the 90-day probationary period and increase in the starting rate from $2.90 to $3 the Company's action appears to have been reasonably directed to insure the continuance of operations particularly in view of the Union's earlier threats to shut the terminal down. In view of the absence of other indications of bad faith in the bargaining it would appear that the refusal to consult the Union on this matter was in the circumstances at most a technical refusal to bargain and not of a nature to require or justify any bargaining order. CONCLUSIONS OF LAW 1. The Company is an employer engaged in commerce within the purview of Sections 2(6) and (7) of the Act. 2. The Union is a labor organization within the purview of Section 2(5) of the Act. 3. By interrogating an employee as to his union membership and by threatening to shut down operations rather than recognizing the Union the Company has engaged in unfair labor practices defined in Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Except as specifically found herein the Company has not engaged in unfair labor practices alleged in the complaint. D. Discrimination The complaint alleges the commission of unfair labor practices in the Company's refusal on January 8, 1968, to reinstate on application Harvey D. Boatright and its refusal on and after March 5, 1968, to reinstate on application the 25 other striking employees named in the complaint. With respect to the question as to the nature and purpose of the strike employee witnesses called by the General Counsel testified that picketing occurred but there is no evidence as to whether or not picket signs were carried or if they were what statements were contained thereon. Strikers Anderson and Turner testified respectively that the issue presented at the strike vote was "better benefits, more money" and "economic reasons," and Union Business Agent Carpenter testified that the strike was triggered by the "take it or leave it" attitude Company which he felt was displayed at the preceding bargaining session, although he conceded that the Company's position was not presented as a final offer. On the basis of all the evidence relating to the issue I find that it does not support the view that the nature and purpose of the strike was in protest against any unfair labor practices of the Company. Since the evidence clearly indicates that all strikers had been replaced by permanent replacements, there is no obligation on the Company's part to offer reinstatement to the strikers. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, and there found to constitute unfair labor practices, occurring in connection with the operations of the Company as set forth in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing such trade, traffic, and commerce and the free flow thereof. V. THE REMEDY In view of the findings set forth above to the effect that the Company has engaged in unfair labor practices affecting commerce I shall recommend that it be required to cease and desist therefrom and from like or related practices and take such affirmative action as appears necessary and appropriate to effectuate the policies of the Act. On the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this case, it is recommended that the Company, its officers, directors, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating employees as to their membership in the Union. (b) Threatening to shut down Company operations rather than recognize the Union. (c) In any like or related manner interfering with, restraining , or coercing employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. 2. Take the following affirmative action which appears necessary and appropriate to effectuate the policies of the Act: (a) Post at its terminal at Jacksonville, Florida, copies of the attached notice marked "Appendix."' Copies of said notice, on forms provided by the Board's Regional Director for Region 12, shall, after being duly signed by the Company's authorized representative, be posted immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to ensure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director, in writing, within 20 days from receipt of this Decision, what steps have been taken to comply with the terms hereof.10 IT IS RECOMMENDED that the complaint be dismissed as to allegations of unfair labor practices not specifically herein found to have been engaged in. 'In the event that this Recommended Order is adopted by the Board the words "a Decision and Order" shall be substituted for the words "a 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 the Regional Director for Region 12, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith " M. R. & R. TRUCKING CO. 181 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 NOT interrogate our employees as their membership in Truck Drivers, Warehousemen and Helpers Local Union No. 512, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. WE WILL NOT threaten to shut down terminal operations rather than recognize the aforesaid labor organization. WE WILL NOT by such interrogation or threats or in any like or related manner interfere with, restrain, or coerce employees in the exercise of their rights under the Act. All our employees are free to join or assist the above-named or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all of such activities. Dated By M. R. & R. TRUCKING COMPANY (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, Room 706, Federal Office Building, 500 Zack Street, Tampa, Florida 33602, Telephone 228-7257.