Davis & Hemphill, Inc.

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Davis & Hemphill, Inc. and District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO. Case 5-CA-4238 June 30, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA On March 10, 1969, Trial Examiner Sidney J. Barban issued his Decision in the above-entitled proceeding, finding that the 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. Thereafter, the Respondent and the Charging Party filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions,' and recommendations= of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and hereby orders that the Respondent, Davis & Hemphill, Inc., Elkridge, Maryland, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Delete paragraph 1(a) of the Trial Examiner's Recommended Order and substitute the following: "(a) Failing or refusing to bargain collectively concerning rates of pay, wages, hours of 'In adopting the Trial Examiner 's conclusion that a good-faith doubt of majority status is not justified because less than a majority of the employees authorized check off of dues, we note also our recent decision in Terrell Machine Company, 173 NLRB No. 230 'The Charging Party excepts to the Trial Examiner's failure to recommend that the unfair labor practice strikers be reimbursed for lost earnings from the start of the strike However, in the absence of evidence that they had abandoned the strike and applied for reinstatement, there is no basis for concluding that these strikers did not voluntarily withhold their services and hence they are not entitled to backpay as sought. Sea-Way Distributing, Inc, 143 NLRB 460 employment, or other terms and conditions of employment with District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of its employees in the appropriate unit." 2. Delete paragraph 2(a) and substitute the following: "(a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of its employees with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. The appropriate bargaining unit is: "All production and maintenance employees including inspectors employed by the Respondent at its Elkridge, Maryland, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act." TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE SIDNEY J. BARBAN, Trial Examiner: This matter was heard before me at Baltimore, Maryland , on December 19 and 20, 1968, upon allegations in the complaint issued on November 26, 1968 (based upon charges tiled on October 30, 1968), alleging that the above-named Respondent had violated Section 8(a)(1) and (5) of the Act. Respondent's answer to the complaint admits allegations in the complaint sufficient to justify the assertion of jurisdiction under current standards of the Board, and to support a finding that the above-named Charging Party (herein called the Union), is a labor organization within the meaning of the Act . The answer denies the commission of any unfair labor practices. Upon the entire record in this case,' from observation of the witnesses and after due consideration of the briefs filed by the General Counsel, the Union, and the Respondent, I make the following: FINDINGS AND CONCLUSIONS THE ALLEGED UNFAIR LABOR PRACTICES A. The Issue Respondent contends that it was justified , upon the termination of its first collective-bargaining contract with the Union, in refusing to bargain with the Union which had been certified by the Board after a secret ballot election the previous year because of an asserted good-faith doubt that the Union continued to be the representative for the purposes of collective bargaining of a majority of Respondent's employees in an appropriate unit. The General Counsel and the Union contend that Respondent violated the Act by such refusals to bargain with the Union as the representative of its employees. '[Certain errors in the transcript have been noted and corrected ] It is noted that Resp. Exh. 12, which was offered and is contained in the exhibit file was not specifically received . In addition to its identification by Respondent's Controller Chandler, the figures therein were largely stipulated by the parties. The exhibit is hereby received. 177 NLRB No. 21 DAVIS & HEMPHILL, INC. 283 B. The Facts The Union was certified by the Regional Director of the Board on July 11, 1967, as the bargaining representative of an appropriate unit within the meaning of Section 9(b) of the Act composed of "all production and maintenance employees including inspectors employed by Respondent at its Elkridge, Maryland plant, excluding office clerical employees, professional employees, guards, and supervisors defined in the Act," after a secret-ballot election held on June 30, 1967, in which the results were 74 for the Union and 44 against (among a list of 123 eligibles). The parties entered into a collective-bargaining contract effective from November 15, 1967, until midnight November 14, 1968. Among the provisions of this agreement, two are noted as having particular significance to the present proceeding: First, although there was no provision requiring membership in the Union, the contract provided that Respondent would checkoff and pay to the Union the dues and initiation fees of any employee submitting an executed authorization in the form provided. Such authorization was not subject to revocation for a year or until the termination of the contract, whichever occurred first, at which time the authorization could, during a 10-day period, be revoked in writing to the Respondent and the Union. (See art. IV of G.C. Exh. 6) Secondly, no newly hired employee became a regular employee with seniority status until after his first 30 days of employment. Until that time such employees were considered probationary employees who could be dismissed by the Respondent for any reason. (See art. XIII, sec. 5 of G.C. Exh. 6) As hereinafter considered in more detail, almost immediately after the execution of the collective-bargaining contract, Sherwood Balderson, president of the Respondent, encouraged Respondent's supervisors to bring reports to him of employee dissatisfaction with the Union, assertedly as part of reports on employee morale generally. Some reports were received. One employee, Hilda Fromm, who had recently been replaced as a shop steward for the Union during this period, had a dispute with Respondent with respect to the right of Respondent to deduct 2 months dues from a single paycheck which she received, and wrote Respondent that she wanted to revoke her checkoff authorization. Respondent advised her that she could not do this at that time. It is clear that Balderson was aware of the reason for Fromm's request. Fromm testified that she never advised Respondent's supervisors that she desired to withdraw from the union, and in fact joined the Union's strike against the Respondent which was current at the time of the hearing . There is no other credible evidence of any attempt by employees to withdraw from the checkoff or from the Union. By letter dated September 9, 1968, the Union notified the Respondent of its desire to modify the current contract, and requested a date for the start of collective-bargaining negotiations. By letter dated September 12, 1968, Respondent advised the Union of its desire to terminate the current contract on its expiration date, stating, "The Company has reason to believe that the Union no longer represents a majority of the eligible employees." On October 28, 1968, Respondent's counsel orally refused a request that the Respondent begin bargaining with the Union for a new contract, also on the basis that the Respondent doubted that a majority of the employees still desired to have the Union represent them. On or about November 7, 1968, Respondent posted a notice to employees in the plant, stating that during the contract year, "a number" of employees had asked Respondent to be relieved of the checkoff and advising that this must be done by registered letter to the Union and Respondent between November 15 and 24, 1968, if the employees desired, which was stated to be a "matter for your individual judgment." No such letters were thereafter received. On the evening of November 14, 1968, a union meeting of Respondent's employees was held at which Respondent's refusal to recognize and bargain with the Union was discussed and a strike vote taken. According to Union Representative O'Brien, who gave the only testimony on the point, about 60 employees of Respondent were present and all voted to strike.' On the morning of November 15, 1968, employees in the bargaining unit represented by the Union went on strike. There were 102 employees in the unit at that time. During the morning, Respondent agreed with Union Representative O'Brien that it would not operate that day or over the weekend. When O'Brien requested Balderson, during this meeting, to negotiate with the Union, Balderson ignored the request. Since that time, according to Balderson, Respondent has built up its work force to about 40-45 employees, of which 8 are new employees, all of whom cross the Union's picket line daily to come to work. It would appear that none of the employees who have signed checkoff authorizations for the Union have returned to work, nor is there any credible evidence that any of these is prevented from coming to work by improper means.' There is some conflict in the evidence with respect to whether there were disturbances at the plant entrance during the early days of the strike - apparently adduced to show that not all who stayed out favored the strike - but I find it unnecessary to resolve these disputes in the testimony. As previously noted, there is no evidence of recent disturbances of this nature. The numbers on the picket line have considerably diminished, and 40 or more employees have been crossing the picket line during the period before the hearing in this matter, without any hindrance shown in the record. Under these conditions, it is manifest that in the absence of special circumstances that do not appear here, it cannot be inferred that those 'In his brief, the General Counsel, without giving any record reference, states that the vote was 55 to 1 I have been unable to find the source for this statement In fact, the General Counsel indicates no transcript support for any factual statement made in his brief, which seriously detracts from the purpose and value of the brief 'Balderson testified that he had no calls from anyone who has not returned to work indicating a desire to return . The testimony of Plant Superintendent Owens was to the same effect, though at one point he testified that employee Herman Major (who Owens said joined the Union after the strike began) told Owens that he was afraid to come in to work because of concern for his family. It is clear, however, that this did not refer to Herman Owens, who was one of the original members of the Union. From the cross-examination of Owens it appears that he had reference to employee John Major rather than Herman Major. This is supported by the testimony of Foreman Reichenach. Moreover, other than Owens' rather uncertain statement, there is no evidence that John Major joined the Union . Nor, of course, would Owens' testimony be proof of the truth of the comment John Major is alleged to have made to him. Likewise Reichenach' s testimony that employee Marianne Evans told him that she was afraid to come in is hearsay as to the fact In addition, the fact that large numbers of employees have been coming into the plant on a daily basis for some time, without any impediment shown by the record would indicate that such contention is not credible in the absence of further evidence as to the basis of such assertion on the part of the individual concerned 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees who remain on strike are other than willing strikers. This is supported by the fact that the number of those who remain on strike conforms approximately to the number who originally voted to go on strike. 1. The asserted doubt of the Union' s status Respondent's president, Balderson, testified that he doubted the Union's representative status on September 12, 1968, because, he asserted, immediately prior to that date he ascertained that less than 50 percent of the eligible employees on the payroll as of that time had executed checkoff authorizations in favor of the Union. Balderson also stated that he was informed that during the 10 months the contract was in effect there had been only 1 month when there had been "as many as 50 percent of the eligible employees on the check-off." However, Balderson did not know, and made no effort to ascertain, how many employees were paying their dues directly to the Union. In addition, Balderson testified that he relied upon reports that he had received from foremen concerning expressions of dissatisfaction which had been made by employees during the previous period. The records relied upon: The records submitted by Respondent and the testimony adduced with respect to them, particularly that of Balderson, are not such as to invite confidence in their use for the apparent purposes for which they were submitted. This may be illustrated by a list of employees for August, 1968, received in evidence as Respondent's Exhibit 5, containing 115 names . The exact purpose of this document has not been made clear, but it was patently the basis for Balderson's testimony "estimating" this to be the number of employees in the bargaining unit on September 12, when he questioned the Union's majority status. Of this number (115) Balderson asserted the Union had checkoffs at the time for "something under 50 percent." However, analysis of the list on the basis of the testimony of Respondent's Controller, Chandler, giving the date of hire and termination of employees in August, reveals that on no single day in August did Respondent employ as many as 115 employees, and it would appear that at the end of August Respondent employed approximately 105 employees.' Controller Chandler testified that, in fact, as of September 12, 1968, the number of employees in the bargaining unit was 107. Of these it appears that seven had been employed 30 days or less.' Similar comment is also applicable to lists of employees submitted in evidence by Respondent for the months of September and October, 1968. Thus Respondent's list of employees hired at any time during October shows 110 in the bargaining unit, but it would appear that there were only 105 employed on October 28, when the Union made its request to bargain, including I employee who was terminated that day. (Emma Hoerl.) Of these at least Controller Chandler described the list at one point as a list of "anyone employed at any time during the month of August," a fact tending more to confuse than enlighten on the issue of the Union's majority status for which it was submitted This and Balderson's evident reliance upon the document to support his asserted doubt of the Union 's majority status are indicative of the misleading character of the exhibit . It is further noted that Chandler also, in a document submitted to the General Counsel before trial, which Chandler explained was in error, informed the General Counsel that the employment figure for August was 102. 'Frank Fewster- August 19; Alexander Grimes-August 12; Delia Dunmore - September 9; James Mitchell, Jr.-September 3; Wayne Straight-September 5, Willard Starliper, Sr-September 12; Theodore Baker - September 4. eight had been hired since September 12. (Timothy Cugle, Cecil Nutty, Cecilia Titus, Tom Mabe, Billy Dowell, Lillian Mobley, Maurice Sternberg, and Emma Hoerl.) Respondent's list of employees in the bargaining unit as of November 15, 1968, shows 102 names, of which at least 5 appear to have been hired within 30 days. (Patricia Hall, Isabelle Brown, Sandra Lineberg, Larry Mullikin, and Carl Tedder.) According to Controller Chandler, as of September 12, Respondent held 52 checkoff authorizations from employees in the bargaining unit in favor of the Union. The record also shows that as of that date five employees in the unit who were paying their dues directly to the Union continued in good standing. The record further shows that as of November 15, when the Union made its request to bargain, 55 of the employees in the unit were on checkoff, and 4 were paying their dues directly to the Union.' Respondent submitted another document (Resp. Exh. 12), prepared by Controller Chandler early in November, which proports to show the number of employees in the unit who were actively employed during one pay period in each month from November 1967, through November 1968, together with the number of unit employees on checkoff and the asserted percentages of employees on checkoff for each month. ' These may be the figures to which Balderson referred in asserting that his doubt of the Union's status was based in part upon the percentages of checkoffs to employment for the 10 months of the collective-bargaining contract,' although Balderson's testimony rather understates the strength of the checkoff figures shown by this exhibit. In fact, the Trial Examiner is convinced, from observing his testimony and from the record, that without the use of these and other documents prepared a considerable time after the fact, and in some cases for the purpose of assisting him in his testimony , Balderson has no reliable recollection of the facts involved. The compilation contained in Respondent's Exhibit 12 shows that at the beginning of the contract period, the Union had 43 checkoff authorizations in a unit of 133 employees, and had 55 checkoff authorizations in November in a unit of 104. (The correct figure for November 15, previously noted, is 102). The total employment in the unit is shown to have varied from month to month, but on the whole tended to decrease in numbers, as the above figures indicate. The compilation indicates that the Union was able to secure new authorizations on a fairly regular basis to replace members lost by turnover. The figures also show that since March 1968, the Union checkoff authorizations held `The number of checkoff authorizations in Respondent's hands as of October 28, 1968, is not easily ascertainable since it is not clear whether, in addition to the 48 authorizations held by Respondent, the Union had delivered 7 new authorizations which it had obtained prior to that date. 'Counsel for Respondent asserts that the figures for employment each month could conceivable be higher if an accurate check of its records were made However, since the document was prepared by Respondent and submitted in evidence on the issue of the Union's majority status - and the employment and checkoff figures were largely stipulated by the parties - it will be considered herein as part of Respondent' s asserted basis for questioning the Union's majority status 'When asked as to his inquiries into check offs , between September 9 and 12, Balderson stated, "We have tabulated records of that ," referring clearly to Respondent's Exhibit 12. Chandler , whom Balderson apparently consulted at the time, asserts that he gave these same figures to Respondent's attorney in September and I find it unlikely that he gave Balderson different figures in that same month, though Chandler at one point indicated the contrary. DAVIS & HEMPHILL, INC. by Respondent exceeded 49 percent of the employees in the unit in every month, except July and October, and exceeded 50 percent of the employees in 5 of those months, including August, September, and November 1968 (the percentage figure on the exhibit for November being obviously in error). Reports of employee disaffection: As in the case of his reference to the employee checkoff authorizations, Balderson's testimony as to the reports he received concerning employee disaffection with the Union was not such as to inspire confidence . For the most part he was unable to recall specifics as to these asserted reports without reference to a document (a copy of the list of employees as of November 15) which he had circulated among his supervisors the day before and the morning of the hearing, for the purpose of having them reconstruct for him the employees reported on, to assist him in his testimony . This led him into a number of palpable errors. Thus at one time, testifying from this document, Balderson stated that the notations showed that the supervisors had reported disaffection of a very large number of employees as of September 12, and then quickly corrected himself to say he meant as of November 15. From the document, Balderson testified that the supervisors had reported to him 121 instances of disaffection involving 51 employees, including 14 on checkoff. However, Balderson testified that he did not know the comparable figures for the period before September 12. Later, he asserted that 10 of the employees reported upon as of that date were on checkoff. When he sought to name these, however, using the November 15 document, and expressing some lack of confidence in his memory, he named some who were not on checkoff as of September 12, and at least one (Lillian Mobley) who was not employed on that date . In most cases, Balderson indicated that he did not recall what was reported to him about these employees who were on checkoff as of September 12, though in two instances he stated that he was told the employees were unhappy with the Union, though not the reason . He also testified to his personal contacts with Hilda Fromm referred to previously . Though Balderson originally stated that the reports received were of employee dissatisfaction and "wanting to get out of the union," he later testified that the reports were of dissatisfaction only. The testimony of Plant Superintendent Owens and Foreman Reichenach with respect to their conversations with employees, both Union and non-union, though more detailed, is largely consistent with this last statement of Balderson. Both denied that the employees made any statements to them to the effect of desiring to withdraw from the Union . Between the two witnesses, they named eight employees who were on checkoff who assertedly voiced various shades of dissatisfaction with the Union at different times. Some of these comments were expressed during the course of disciplinary action by the supervisors against the employees; some were complaints about friction between the Union and the non-union employees; some indicated that the employees thought the Respondent could do more for them than the Union could . At least two of these conversations were placed as occurring just after the election (though Reichenach also stated at one point that his only conversation with one of these employees, Marianne Evans, occurred only a week before the hearing; Reichenach also identified Evans as one of those active in seeking members for the Union after the contract was signed). Two of these employees assertedly expressing 285 dissatisfaction with the Union left Respondent's employ shortly after September 12 (Reichenach, at one point, stated that his conversation with one of these, Alice Lee, occurred after she left). C. Conclusions Under well-established principles of law, a union's status as the statutory representative of the employees in the bargaining unit, sometimes referred to as the union's majority status, is conclusively presumed for the first year after its certification, subject to certain exceptions not present here, and is presumed to continue thereafter subject to rebuttal. In the present case, the Union's representative status was not only not rebutted, but was affirmatively shown to continue. Thus, it appears that during the period critical to the complaint, a majority of the employees in the unit were, in fact, members of the Union in good standing, and, indeed, on the last day of Respondent's operation before the strike, a majority of the employees in the unit were on checkoff, as the Respondent could easily verify. There is further no substantial evidence that the Union was losing the support of the employees in the unit. To the contrary, its ability to secure new members to compensate for those lost by turnover was amply demonstrated, and, in fact, is strongly shown by the fact that at least seven new members were secured between September 12 and November 15, 1968 (G.C. Exh. 11 indicates 10 new members), and the Union's total number of checkoffs tended to show an increase over its original 43 authorizations. Indeed, it must be kept in mind that the issue is not whether, at any transient point in time after the passage of the certification year, the Union can demonstrate that it has an absolute majority of members in the unit, but whether the facts show that it has substantially lost the support of the unit which was demonstrated by secret ballot in the election . In the absence of a union-security clause requiring membership, such support may be presumed to continue even though all those who vote for the Union do not become members, unless such support is rebutted by substantial objective evidence. As was stated in Gulfmont Hotel Company, 147 NLRB 997, 1001-2, enfd. 362 F.2d 588 (C. A. 5): Employees for various reasons unconnected with their desire to have a union represent them, may fail to execute checkoff authorizations. There may be some who prefer, as a matter of principle, to pay their financial obligations in person ; there may be others who prefer to decide when and if they can afford to spare the money for dues and fees; and there may even be some who are willing to vote for and accept union representation , but who decide to be free riders and enjoy the expected benefits of representation without paying for them at all. Accordingly, although the voluntary signing of checkoff authorizations by a majority in the unit may be considered as evidence of a union's majority status, the converse is not true. The character of the asserted reports shown by the record fall far short of establishing a concerted or widespread disaffection from the Union. Even members of the Union may be critical of their representative without thereby indicating that they are jettisoning the organization. On the basis of the evidence in this matter, it is clear that none of the employees asserted that they were withdrawing from the Union, and, it is further found, these reports did not furnish a substantial or 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reasonable basis upon which Respondent could determine that the Union was losing or had lost its majority support in the unit.' The fact that the Union had not lost its support is further indicated by the secret ballot vote supporting the calling of the strike, and the fact that no member of the Union had returned to work, or sought to withdraw his checkoff authorization as Respondent advised might be done after the termination of the contract. Further, Respondent not only made no effort to ascertain whether any of its employees were members of the Union in good standing, though not on the checkoff, but on the basis of the evidence readily available to it could not reasonably have concluded that the number of checkoffs indicated that the Union was losing support. Thus, in addition to the indications noted above showing that the Union was rather consistently successful in securing new authorizations, it was patently unreasonable to conclude, as Respondent did, that the Union's support was diluted by newly hired, probationary employees. Not only would it normally be presumed that the Union's representative status was not affected by turnover of employees in the unit, see Kentucky News, Incorporated, 165 NLRB No. 115, but the facts show that the Union was, indeed , successful in securing checkoff authorizations from a number of the new employees hired just before September 12 and thereafter. If the number of the probationary employees were deducted from the total number of employees in the unit during the period September through November 1968, the Union's position as representative of the bargaining unit is further strongly confirmed. While, after the end of a certification year, an employer may be insulated against a charge that it has refused to bargain in violation of the Act on the basis of an asserted doubt of the Union's continuing majority status, such assertion must be made "in good faith" and upon "reasonable grounds." See Celanese Corporation of America, 95 NLRB 664, 673; see also N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C. A. 5). On the basis of the analysis of the evidence made herein, including my doubts as to Balderson's testimony, and upon the record as a whole, it is found that Respondent not only did not have reasonable grounds for its assertion of doubt of the Union's majority status, but that such assertion was not made in good faith , and that Respondent therefore, by refusing to bargain with the Union on and after September 12, 1968, violated Section 8(a)(1) and (5) of the Act,'° and by such conduct caused and has prolonged the strike of its employees which began on November 15, 1968, which strike is found to be an unfair labor practice strike. 'In the special circumstances of this case, I do not beheve that Hilda Fromm's request to withdraw her checkott which might in other circumstances be considered the equivalent of a desire to withdraw from the Union, see Clifton Precision Products Etc, 156 NLRB 555, 565, fn 25 - indicated her withdrawal of support for the Union, nor do I believe that the Respondent so understood it In coming to that conclusion, I was particularly impressed by my observation of Fromm and her testimony, as well as by the record as a whole. "In coming to this conclusion. I have considered the cases cited by the Respondent in its brief, which I find distinguishable from the present case on their facts, and have also noted and considered Respondent's argument based upon the lack of independent evidence that Respondent engaged in other violations of the Act However, the fact that Respondent may have engaged in no other violative conduct would not excuse its refusal to bargain in the circumstances of this case. Conclusions of Law 1. The 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. All production and maintenance employees including inspectors employed by the Respondent at its Elkridge, Maryland, plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. On September 12, 1968, at all times thereafter, the Union was, and continues to be the exclusive representative of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 5. The Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, which unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 6. The strike of Respondent's employees which began on November 15, 1968, was caused and has been prolonged by Respondent's unfair labor practices and is an unfair labor practice strike. THE REMEDY It having been found that the Respondent engaged in unfair labor practices in violation of Section 8(a)(1) and (5) of the Act, which conduct caused and prolonged the unfair labor practice strike which began on November 15, 1968, it will be recommended that the Respondent cease and desist from such unfair labor practices, or other like or related conduct. In accordance with the normal practice of the Board, see Ideal Baking Company, Inc., 172 NLRB No. 120, it will be recommended that Respondent, upon application, offer to all its employees who engaged in the strike beginning November 15, 1968, reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace the striking employees, and that the Respondent make whole those strikers who are entitled to reinstatement for any loss of pay they may suffer by reason of the Respondent's refusal, if any, to reinstate them, upon request, by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period beginning 5 days after the date on which he applies for reinstatement and terminating on the date of the Respondent's offer of reinstatement, such loss to be computed in the manner set forth in F. W. Woolworth Company, 90 NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB 716. The Union has requested that I further find that the strikers are entitled to be recompensed for the loss of pay and benefits which they have suffered during the strike as a result of Respondent's unfair labor practices, and has filed a vigorous brief in support of that position. Respondent resists this request. The proposal would clearly extend the Board's usual remedy in cases of this nature. However, this case may well be appropriate for a determination of the propriety of such a remedy. Respondent's violation here is a direct attack upon a basic purpose and policy of the Act, which is stated as designed DAVIS & HEMPHILL, INC. 287 to prevent and mitigate obstructions to interstate commerce because of stoppages of work occasioned by labor disputes, "by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection." Section 1 of the National Labor Relations Act, as amended, 29 USCA, Section 151. The violation, as has been found, was deliberate, without reasonable grounds, not in good faith, and, indeed, heedless of the facts and their effect on the rights of the employees involved. The employees' strike in protest of such conduct was a reasonable reaction to Respondent's unfair labor practices (though I do not pass upon the asserted acts of obstruction during the early days of the strike), and should reasonably have been foreseen by Respondent as a probable result of its illegal conduct. The Union argues, in effect, that in these circumstances the employees should not be required to suffer the losses occasioned by Respondent's unfair labor practices, and that Respondent, having caused these losses by its own purposeful acts in violation of the law, should be required to restore the employees to the situation which they would have enjoyed but for these unfair labor practices. Respondent argues that the Board is without authority to grant such a remedy. The General Counsel asks only for the normal remedy which has been granted above. I have carefully considered these novel arguments and have concluded that they present a question of policy which should be best decided by the Board in the first instance, and for that reason declines to decide the merits of the request, or the authority of the Board to grant it, and therefore denies the Union's request. (a) Upon request, bargain collectively with the above-named labor organization as the exclusive representative of the employees in the above-described appropriate unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a written signed agreement. (b) Upon application, offer to the Respondent's striking employees reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay, in the manner set forth in the section of this Decision entitled "The Remedy." (c) 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 amounts of backpay dues, if any, and the rights of employment under the terms of this Order. (d) Post at its plant at Elkridge, Maryland, copies of the attached notice and marked "Appendix."" Copies of said notice, on forms provided by the Regional Director for Region 5, after being signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be maintained 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. (e) Notify the Regional Director for Region 5, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.12 RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, it is recommended that Davis & Hemphill, Inc., Elkridge, Maryland, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Failing or refusing to bargain collectively concerning rates of pay, wages, hours of employment , or other terms and conditions of employment with District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of its employees in the following appropriate unit: All production and maintenance employees including inspectors employed by the Respondent at its Elkridge, Maryland plant, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act. (b) In any like or related 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 choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities, except to the extent permitted by Section 8(a)(3) of the Act. 2. Take the following affirmative action found necessary to effectuate the policies of the Act: "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, recognize and bargain with District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, as the exclusive representative of our employees for purpose of collective bargaining with respect to the terms and conditions of employment in the following appropriate unit: All production and maintenance employees including inspectors employed by the company at its Elkridge, Maryland plant, excluding office clerical employees, professional employees, guards and supervisors as defined in the Act, 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD And if an understanding is reached, such understanding will be written out in a signed contract. WE WILL NOT, by refusing to bargain with District No. 12, International Association of Machinists and Aerospace Workers, AFL-CIO, or in any like or related manner, interfere with, restrain or coerce you in your right under the law to form join or assist the Machinists Union, or in your right to bargain through representatives of your own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from such activities except as the law may provide. It has been found that the Company's employees, on November 15, 1968, began a strike caused and prolonged by the Company's unfair labor practices. Therefore - WE WILL, upon their application, offer to our employees who continue lawfully on strike, reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any employees hired to replace striking employees, and we will make each employee whole for any loss of pay suffered as a result of our failure to reinstate the employees within 5 days after the application to return to work. Dated By DAVIS & HEMPHILL, INC. (Employer) (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting and must not be altered , defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, Federal Building, Room 1019 Charles Center, Baltimore, Maryland 21202, Telephone 301-962-2822.