Southwestern Pipe, Inc.

364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Southwestern Pipe, Inc. and United Steelworkers of America, AFL-CIO. Case 23-CA-2465 October 28, 1969 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND ZAGORIA On August 14, 1968, Trial Examiner George Christensen 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 The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. Thereafter, the Charging Party and the Respondent filed exceptions to the Trial Examiner's Decision and supporting briefs, and the General Counsel and the Charging Party filed reply briefs. 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,' except as modified herein The Trial Examiner found that Respondent's employees went out on strike on July 12, 1966, and continued on strike until September 9, 1966, when the Union made an unconditional offer to return to work on behalf of its striking members. Subsequently, Respondent offered reinstatement to the strikers either to their former jobs or to other jobs with Brown and Root, a sister corporation. The Union advised the Respondent that it would pass 'The Charging Party excepts to the Trial Examiner's dental of its motion to amend the complaint to allege the discharge of James H Gray as a violation of Sec 8(a)(3) We find that the Trial Examiner did not abuse his discretion in denying the motion 'At the hearing the Trial Examiner granted a motion to strike from the complaint allegations that certain proposals made by Respondent during the negotiating sessions, which provided for individual bargaining , violated the Act The Trial Examiner appears to have relied , to some extent at least, upon those proposals in concluding that Respondent did not bargain in good faith , and Respondent excepts In view of the abundant evidence regarding other conduct which supports the Trial Examiner 's conclusions, we find it unnecessary to pass upon this question , and do not rely upon the advancement of these proposals The Respondent excepts to the finding that the strike was an unfair labor practice strike We do not agree However, even were the strike economic at its inception, it was converted to an unfair labor practice strike by Respondent's letter of July 13, 1966, discharging the strikers Respondent also excepts to the inclusion of R B Chreene in Appendix A of the Trial Examiner' s Decision Since R B Chreene' s name was stricken from the pleadings by stipulation of the parties, and the issue was not fully litigated , we find merit in this exception Accordingly, we shall order that R B Chreene' s name be deleted from the list of strikers entitled to reinstatement and backpay (Appendix A of the Trial Examiner's Decision) along job offers but that it was the Union's position that the strikers were unfair labor practice strikers and as such were entitled to immediate reinstatement as a group, and that the Respondent was required to discharge replacements to make room for returning strikers. The Respondent, in reply, stated that it viewed the strike as economic, that it owed an obligation to the replacements, and that it would return strikers to their former jobs as openings became available and in the meantime offered them temporary jobs with Brown and Root. At least 57 of the strikers, when offered their former fobs, replied with a form letter refusing reinstatement until such time as all strikers were offered reinstatement. Having found that the strike was an unfair labor practice strike and that the Brown and Root jobs were not substantially equivalent, the Trial Examiner held that these offers did not constitute offers of group reinstatement, that unfair labor practice strikers are entitled to immediate group reinstatement upon their unconditional application to return to work, and that, consequently, Respondent was not relieved of backpay liability. In reaching this conclusion, the Trial Examiner relied on the Board's decision in Robert S. Abbott Publishing Co.3 The Seventh Circuit Court of Appeals denied enforcement of the Board's Order in Abbott ° However, in Rice Lake Creamery Co.' the Board noted its disagreement with the Court and followed Abbott In Abbott the Board held that, since unfair labor practice strikers are entitled to immediate reinstatement as a group, offers of reinstatement to individual strikers, or selected numbers of strikers, did not constitute valid offers of reinstatement and, consequently, did not toll an employer's liability for backpay to those strikers to whom such offers were made We have reconsidered the Board's decisions in the Abbott and Rice Lake Creamery cases and conclude, in accord with the opinion of the Court of Appeals for the Seventh Circuit, that those decisions should be reversed to the extent they hold that the failure of an employer to offer strikers group reinstatement subjects that employer to backpay liability as to those employees who have been offered and who have refused reinstatement in favor of continuing their strike. The law with respect to an employer's obligation to reinstate to their former jobs economic or unfair labor practice strikers who have made unconditional applications for reinstatement is well settled. Economic strikers who have been replaced are not entitled to immediate reinstatement on demand, but they must be offered jobs as these become available. Unfair labor practice strikers must be returned to their former jobs if these are still available even if the employer must discharge replacements to make '139 NLRB 1328, Member Fanning dissenting in pertinent part at 1330, in 4 '331 F 2d 209 (C A 7) '151 NLRB 1113 179 NLRB No. 52 SOUTHWESTERN PIPE, INC. 365 room for the returning strikers. An employer's refusal to reinstate a striker who has made himself available for work on an unconditional basis and who is entitled to be returned to his fob constitutes a violation of Section 8(a)(3) of the Act. A striker may refuse an offer of reinstatement, without losing his status as a striker, because the employer has not made a similar offer to other strikers who are also entitled to immediate reinstatement. The striker is thereby engaging in protected concerted activity. But he cannot elect to continue his strike, regardless of his motive, and simultaneously demand that the employer pay him for not working. As stated by Member Fanning in his dissent in the Abbott Publishing case (139 NLRB at 1330, fn 4): The Act does not protect an employee from loss of wages as the result of a strike even though the strike was caused by an unfair labor practice An employee who prefers concerted activity to the status of a "strikebreaker" cannot sup at both tables He cannot be unavailable for work to put economic pressure on his employer to rectify a wrong and at the same time receive full pay for the job from which he has voluntarily absented himself As indicated above, however, employees do not lose their right to reinstatement by engaging in a continued strike to protest their employer's failure to offer reinstatement to other strikers. They merely revert to their status as unfair labor practice strikers until such time as the employer accedes to their demands or until they terminate the strike. Our dissenting colleagues assert that the Board's decision here "denies to each member of the group the very protection the Act seeks to afford " Apparently they misconstrue our holding. We do, and shall continue to, protect the rights of all strikers, both economic and unfair labor practice strikers. In this case, the refusal to reinstate some of the strikers was predicated on the employer's view that they were economic strikers. (They had in fact been replaced.) Because the employer was wrong, and in fact the strike was caused by its unfair labor practices, the employer again violated the Act by its refusal. However, the rest of the employees chose to remain on strike, rather than to accept the employer's offer of reinstatement. They thus continued their status as unfair labor practice strikers, now protesting the unlawful refusal to reinstate their fellow employees As such, they remain protected, and are entitled to reinstatement, upon request, whether or not they have been replaced. In this respect, the case is no different from an initial strike caused by, for example, a discriminatory discharge of a single employee. When such a strike occurs, it is protected, and because it is also an unfair labor practice strike, the employer's obligation to reinstate the strikers on their request exists without regard to whether the strikers have been replaced. But if the strikers continue their strike after offering to return to work because the discriminatorily discharged employee is not reinstated at the same time, they are doing exactly what they did in the first place, continuing to protect by concerted activity the employer's unfair labor practice. They have the right to do so; they do not have the right to be paid while doing so That is all we hold here. Consequently, we find, contrary to the Trial Examiner, that the Respondent's liability for backpay to those strikers who refused its offers of reinstatement at Southwestern Pipe in their former or substantially equivalent jobs, was tolled by such offers. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner and orders that the Respondent, Southwestern Pipe Inc , Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified- 1. Delete paragraphs 2(c) and (d) of the Trial Examiner's Recommended Order and substitute the following- "(c) Offer immediate and full reinstatement to their former or substantially equivalent employment with the Company to all strikers named in "Appendix A," who have not heretofore been restored thereto, and make each of them whole for any loss of earnings they may have suffered by the Company's September 9, 1966, refusal of their unconditional application therefor from September 9, 1966, to the date of a valid offer of reinstatement, in the manner set forth in this Decision." "(d) Make whole all strikers named in Appendix A, who have heretofore been restored to their former or substantially equivalent jobs with the Company, for any loss of earnings they may have suffered by the Company's September 9, 1966, refusal of their unconditional application therefor, from September 9, 1966, to the date of a valid offer of reinstatement, in the manner set forth in this Decision." 2. Delete the name of R. B. Chreene from Appendix A of the Trial Examiner's Decision. MEMBERS BROWN AND JENKINS, dissenting in part Contrary to, the majority we would adhere to established policy and find that piecemeal offers of reinstatement to unfair labor practice strikers are not valid offers and hence do not toll the Employer's backpay obligation with respect to those strikers who rejected such offers. The strike in this case was provoked by Respondent's bad-faith bargaining and other unfair `Robert S Abbott Publishing Co , supra, and cases relying thereon, are hereby overruled to the extent inconsistent with this decision 366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices It began on June 12, 1966. The next day Respondent discriminatorily discharged all participants in the strike. On September 7 and 8, 1966, the strikers offered to return to work. Respondent met their application by indicating that it would not terminate replacements hired during the strike but that it would reinstate the strikers as vacancies occurred Thereafter, when Respondent offered jobs to certain strikers, several rejected the offers, insisting upon their right to group reinstatement. As to this latter group, the majority would toll backpay as of the date they received their offer of reinstatement. Under settled Board policy, unfair labor practice strikers are entitled to immediate reinstatement upon their unconditional offer to return to work. A failure to reinstate entitles the strikers to backpay until the date they receive valid offers of reinstatement. In Robert S Abbott Publishing Co , 139 NLRB 1328, it was held that piecemeal offers of reinstatement to unfair labor practice strikers are not valid offers of reinstatement. In that decision it was pointed out that to hold otherwise would be inimical to the ". . . protection which the Act affords to collective action . ." Thereafter, this principle was followed by the Board in Berger Polishing, 147 NLRB 21, and Rice Lake Creamery, 151 NLRB 1113.' In our opinion the majority offers no persuasive explanation in support of their departure from the Abbott rule. Although it is true that the Seventh Circuit Court of Appeals denied enforcement of the Board's Order in Abbott, as we read that decision the Court did not pass upon the principle involved in this case. Thus, the Court, before discussing the Board's remedial order, had reversed the Board's unfair labor practice findings and had specifically concluded that the strike was not an unfair labor practice strike. Therefore, the Court's pronouncements with respect to the remedy issue were made in the context of an economic strike. Accordingly, this decision of the Court cannot be construed as determining that piecemeal offers of reinstatement to unfair labor practice strikers constitute valid offers as to those who reject them. Other than the Court's decision in Abbott, the majority relies solely upon reasoning which was considered in Abbott and which at that time was regarded as unpersuasive. All of the strikers here, not just those selected by the employer, were entitled to reinstatement, just as were the six employees whom the employer refused to reinstate in N L R. B. v. Fleetwood Trailer Co., 389 U.S. 375. As the Court there said, "If, after conclusion of the strike, the employer refuses to reinstate striking employees, the effect is to 'Rice Lake involved piecemeal reinstatement followed by harassment of the reinstated employees. We see no need for reversing that case, even were we to subscribe to the majority's view discourage employees from exercising their rights to organize and to strike guaranteed by Secs. 7 and 13 of the Act (29 U.S C. Secs. 157 and 163). Under Secs. 8(a)(1) and (3) (29 U.S.C Secs 158(l) and (3)) it is unfair labor practice to interfere with the exercise of these rights. Accordingly, unless the employer who refuses to reinstate strikers can show that his action was due to `legitimate and substantial business justifications,' he is guilty of an unfair labor practice." 389 U.S. at 378. Respondent makes no claim of a legitimate business justification for its refusal to reinstate some of the strikers, and thus, as the Court held in Fleetwood, "the conduct constitutes an unfair labor practice without reference to intent." 389 U.S. at 380. The piecemeal offer of reinstatement when all the employees should have been reinstated was itself therefore unlawful, not just in part but in toto, for it constituted a new form of discrimination against the strikers because of the disparate treatment meted out to those in that group. We fail to see how the refusal to participate in unlawful discrimination, by those who would profit from such participation, can cut off further backpay for them. As the Court of Appeals which decided Abbott has recently held in applying Fleetwood, the absence of "any reason for preferring new workers as opposed to strikers" who are available for work is itself evidence of unlawful motive. Laidlaw Corporation v N.L R.B., 414 F.2d 99 (C.A. 7). As explained in Draper Corporation, 52 NLRB 1477, 1479, the purpose of the Act is to eradicate industrial strife by substituting therefor the friendly adjustment of differences between employees and their employers through collective bargaining. In order to make collective bargaining an effective instrument of national policy, the Act was specifically designed to equalize the bargaining power between employers and employees by permitting employees to organize free from employer interference. Thus, the Act recognizes the fundamental necessity of assuring to employees the group security derived from their association in labor organizations with their fellow employees As an essential ingredient of this group security, the Act also guarantees to employees the right to strike and expressly proscribes any construction of its provisions, except as specifically provided, which destroys the integrity of the strike. But the potential for such destruction exists no less at the end of a strike than during the strike or even before its inception. Thus, the Act logically requires that the employees who voluntarily give up a strike be protected as a group in returning to work as well as in striking. Our colleagues agree that all the employees were unfair labor practice strikers who were entitled to reinstatement even though it necessitated the discharge of strike replacements. They concede that Respondent committed an unfair labor practice by refusing to offer reinstatement to certain members SOUTHWESTERN PIPE, INC. of this group. By offering reinstatement to some of the strikers while unlawfully denying reinstatement to others in the same group, acting in concert with them, Respondent engaged in conduct which is discriminatory and inherently destructive of the interests of the entire group, for such conduct denies to each member of the group the very protection the Act seeks to afford Our colleagues would permit this even though it deprives the employees of such collective protection at a time when they require it most, namely, at the abandonment of what is to them an unsuccessful strike. The majority rests its conclusion that the employees who refused Respondent's offers of reinstatement are not entitled to backpay on the ground that such refusals constituted a continued strike. However, the Act does not empower the Respondent to continue the "striker" status of its employees by rejecting their offer of group abandonment of the strike. Nor does the offer to abandon the strike cease to be unconditional merely because the offer contemplated a group return By the same token, the employees do not continue as strikers merely because they make such an offer and resist the employer's offer of reinstatement to less than the entire group. To hold otherwise, as our colleagues do, burdens the employees' right to strike with such harmful consequences as to place the exercise of that right in serious jeopardy. Such a construction would enable an employer to pit certain members of the group against other members of the same group by forcing the former to act as strikebreakers, under penalty of loss of wages, and thereby cause them to become a party to the employer's unfair labor practices against the latter, in a situation where the basis of discrimination is the collective concerted activity of the entire group. We agree that the Board does not act as an instrument for the enforcement of a union's strike demands. However, this does not mean that the Board should jeopardize the future exercise of the right to engage in a strike by permitting an employer to reconstitute plant personnel on a discriminatory basis, as the Respondent has done in the instant case. Such conduct is inimical to the security each individual employee gains from collective association which, as the Act postulates, is fundamental to the organizational life of all the employees. For these reasons, we would not depart from existing principles by holding that the offer of reinstatement here operated to cut off backpay thereafter to those who refused it. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GEORGE CHRISTENSEN, Trial Examiner. The hearing in this case was held at Houston, Texas, between May 15-26 367 and June 5-22, 1967 The United Steelworkers of America, AFL-CIO, hereafter the Union, filed an original charge on August 3, 1966,' and an amended charge on September 22 The General Counsel by the Regional Director for Region 23 after investigation of the charges issued an original complaint on November 4, and an amended= complaint on April 28, 1967, alleging violation by Southwestern Pipe, Inc., hereafter the Company or the Respondent, of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (hereafter the Act). By its answers to the original and amended complaints filed on November 25 and May 12, 1967, Respondent denied the material allegations thereof and the commission of any unfair labor practices. All parties appeared at the hearing and were afforded full opportunity to introduce evidence, to examine and cross-examine witnesses, to argue orally and to file briefs. All parties waived oral arguments and submitted briefs. Based upon his review of the entire record, observation of the witnesses and perusal of the briefs, I make the following Findings 1. JURISDICTION AND LABOR ORGANIZATION The complaint alleges and Respondent admits that the Company is a Texas corporation with its principal office and place of business at Houston , Texas, where it is engaged in the manufacture and sale of pipe and tubular goods and that during the 12 months preceding the issuance of the complaint it manufactured , sold, and shipped goods and materials valued in excess of $50,000 from its place of business at Houston directly to points outside of Texas. The complaint also alleges and Respondent concedes that the Union is a labor organization as that term is defined in the Act. Based on the foregoing , I find that the Respondent is an employer engaged in commerce and in a business affecting commerce and the Union is a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act. 'All dates refer to 1966 unless otherwise noted 'Without objection, the Trial Examiner during the course of the hearing granted General Counsel's motions to strike pars 7(c), 13(d), and 13(e) of the amended complaint The Trial Examiner permitted the General Counsel to add a paragraph (x) to the amended complaint alleging publication of a February 11 letter (G C Exh 2(a)) by Plant Manager Whitaker to employees as an additional claimed violation of the Act The Trial Examiner denied the Charging Party' s motion to add the name of James H Gray to the amended complaint as an alleged discrimmatee, inasmuch as the Regional Director refused so to do after his investigation of an amended charge specifically alleging that Gray was discharged for union activities resulted in his determination that Gray's discharge was for cause, in which determination the Regional Director was sustained on appeal to the office of the General Counsel The Trial Examiner ruled that this dismissal barred his consideration of the merits of the Charging Party's renewed claim that Gray was discharged in violation of the Act, since Sec 3(d) of the Act reserved to the General Counsel and his agents the sole power of determining whether or not a specific charge shall or shall not be included in a complaint The Trial Examiner took under advisement a motion of the General Counsel and the Charging Party and opposed by the Respondent to add to Schedule A of the amended complaint the names of R B Chreene, Pearl L Moore, Charles Ashley, Jefferson Hall, Edgar Rose, Sammy L Kraft, Bill Johnson, Jerry Skelton, and Ruben Moses as discriminatees Inasmuch as the Company was aware of the participation of these men in the strike, and the evidence presented by all the parties related to all the strikers, including the men in question, the motion is granted 368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11 THE UNFAIR LABOR PRACTICES A. Background Since the original charge in this case was filed on August 3, Section 10(b) of the Act precludes reliance upon any occurrences prior to February 3 in ruling upon the merits of the complaint as other than background information. However, a recitation of certain of those prior occurrences enables a clearer understanding of events during the 10(b) period and, therefore, are recited hereafter. The Company for some years has conducted its operations on premises which it shares with Brown & Root, Inc. Both companies are wholly owned subsidiaries of Halliburton Co Brown & Root is a much larger company than Southwestern Pipe and utilizes the major portion of the premises The two companies have separate boards of directors and management personnel (though the two boards are composed of the same persons) and conduct personnel matters, such as hiring and maintenance of personnel records, at a common administrative center For a considerable time prior to a July 12 strike of Southwestern Pipes's employees, about 70 percent of the work force were negroes' Prior to the time the Union commenced its organizational efforts among the Company's employees (in early 1965), the Company's negro employees were assigned separate (and poorer) parking facilities, hired only in the lowest-rated jobs, not promoted into the higher-rated jobs and asked to contribute or assign a different (and higher) amount from their wages to a charity favored by the Company.' While the Company discontinued some of these practices' long before the Union commenced its activities among the employees, the negro employees, many of whom were long-service, had not forgotten and were sensitive on the issue Both the Company and the Union were aware of this sensitivity and the potential of the discrimination issue in the campaign. The appeal of the Union was based in part on the promise of a contract containing provisions protecting the employees against discrimination plus the establishment of the means for redress in the event discrimination occurred, i.e , job classifications based solely on job content, a rate range for each classification, progression within such rate ranges based on factors relating solely to time in grade and job performance, opportunity for progression from lower to higher classifications based on the same factors, layoff based only on length of service, discharge only for proven good cause, the right to grieve and arbitrate any company infraction of such provisions, etc The Company countered such appeal with the time-tested carrot-and-stick formula On the one hand, the Company advised the employees that the Company, and only the Company, had the power to make any changes in existing practices, that if any changes were made, they would be made only if the Company felt it was in its best interest, and that all the employees would accomplish by choosing representation by the Union would be a strike and consequent loss of their jobs to replacements.' On the other hand, the 'No employees of Mexican extraction were employed by the Company until strike replacements were secured after the Union called the strike, most of the replacements were of Mexican extraction 'Employee testimony to this effect was not contradicted 'Segregated parking and the charity contribution practices Company sought to convince the employees of a "new deal" and its benevolent interest by (1) installing a new plant manager, (2) reorganizing the management hierarchy, (3) promoting several negroes from the bargaining unit to first echelon supervisory positions and one to a second echelon supervisory position, (4) reclassifying a substantial number from lower to higher-rated job classifications, with consequent wage rate increases, and (5) granting a substantial general wage increase' in the month prior to the date the Board conducted an election on the Union's petition for certification as the collective-bargaining representative of the Company's production and maintenance employees.' These five actions also vividly illustrated the Company's point that it, and it alone, had the power to make any changes; that it could do so without the Union playing any role therein, and that it desired to improve the role of the negro employees. Three days after the certification issued, the Union requested a list of the names of the employees in the unit, their job classifications, rates of pay, the details of the Company's vacation, holiday, profit-sharing and insurance plans, and a meeting for the purpose of commencing negotiations for a contract On August 3, 1965, the Company furnished the requested information and stated its willingness to meet with the Union after it had digested the submitted material. The Company also requested the Union's agreement to its grant of certain merit increases On August 5, 1965, the Union by telephone and a followup letter consented to the increases and on August 10, 1965, mailed the Company a proposed contract. Formal negotiations commenced on September 10, 1965 William A. Brown, an attorney, was designated at the outset as the sole spokesman for and representative of the Company, and continued in that role at all times subsequent.' Joie Hughes was the Union's spokesman and representative at the first meeting, and continued in that capacity for the next four meetings (September 17, 23, and 28, October 5, 1965). At the outset the parties agreed that the Company might make merit increases during the course of the negotiations without prior notice to and discussion with the Union, that they would discuss noneconomic issues first, that they would attempt to reach agreement in principle and then develop mutually acceptable language, and that all agreements concerning specific provisions would be tentative pending agreement on a complete contract Compromises were reached during the first five meetings on provisions covering the parties and purposes of the contract (the preamble), union recognition, no discrimination , management rights, waiver of bargaining rights on matters not incorporated in the agreement for its term, definition of shifts and the premiums to be paid therefor, definition of the workweek 'A typical company communication on this issue (lob security, a matter of particular concern to minorities), stated "Look what happened at Allied Chain Co here in Houston when the Union called a strike this April About 100 employees , mostly colored, went on strike , and the Company has now replaced all but 10 or 15 who refused to strike Nearly 100 men have been permanently replaced and lost their jobs " 'The Company labeled the increases as merit increases , the evidence (Resp Exh R-2) established, however, that it was a general wage increase, since it was granted to practically the entire work force in amounts ranging from 12-25 cents per hour The Union filed its petition on May 10, 1965, the hearing was held on June 9, 1965 , the general wage increases were placed into effect in June of 1965, the election was held on July 15, 1965, and won by the Union (115-47, with 9 challenged ballots ), the election results were certified to the parties on July 23, 1965 (Case 23-RC-2445) 'From the time the Union 's organizational campaign commenced SOUTHWESTERN PIPE, INC. 369 and overtime premium to be paid for work in excess thereof and prior notice when holiday, Saturday or Sunday work was scheduled. Checkoff of union dues, overtime distribution, daily overtime premiums, a no-strike provision, the length of lunch periods and under what conditions they should be compensated for, seniority and other matters were also discussed C. O. Murphy replaced Hughes as the union spokesman at the sixth meeting (October 7, 1965) No progress was made and the parties discussed seeking the services of the Federal Mediation and Conciliation Service, hereafter the FMCS. C. T. Ray assumed the role of union spokesman at the seventh meeting (November 4, 1965) and withdrew the Union's previous agreement to the bargaining waiver provision. When Brown insisted on its retention, Ray left the meeting and shortly thereafter filed a charge with the Board alleging that Brown's insistence constituted a refusal to bargain (Case 23-CA-2223) The charge was dismissed Bargaining resumed on December 10, 1965, under FMCS auspices, and continued on January 7, 13, 14, and 25, with Ray in charge for the Union at all meetings other than January 25 (when Hughes substituted for him). The December 10, 1965, meeting was devoted mostly to apprising the mediator of the current state of negotiations; the parties confirmed their agreement to the following: (1) the preamble, (2) union recognition, (3) no discrimination for union support or nonsupport, nor because of race, creed, sex, color, or national origin, (4) management rights (partial), (5) definition of workweek and provision for payment of overtime for work in excess thereof, (6) definition of workday, (7) extent of lunch period and provision for paid lunch period under certain conditions (subject to a ruling concerning the legality of such payments from the Department of Labor), (8) provision for advance notice of Saturday, Sunday or holiday work, (9) shift schedules and premium payment therefor, and (10) definition of seniority. They confirmed their discussion but failure to agree upon provisions for- union dues checkoff, grievance and arbitration machinery, a no-strike provision, seniority, preservation of practices and customs not set out in the contract, daily overtime at 1 1/2 time after 8 hours and double time after 12 hours, overtime at 1 1/2 time for Saturday work and double time for Sunday work, 10 minutes paid washup time prior to shift termination, equal distribution of overtime and employee right of refusal of overtime work, nonrotation of shifts and employee right to exercise shift preference based on seniority, leaves of absence, military leave, employee discipline, waiver of bargaining rights over new or additional issues for the contract term and management rights (partial agreement). The balance of the contract submitted to the Company by the Union on August 10, 1965, still had not reached the discussion stage. At this meeting, the parties reached agreement in principle to provisions governing temporary transfers and veterans reemployment rights, and discussed but failed to reach agreement on fixed shifts with shift preference rights based on seniority and leaves of absence The Union consented to a 7-cent general wage increase proposed by the Company effective January and requested advance notice of future proposed increases (changing Hughes' September 10, 1965, consent to the Company's making through the completion of the hearing in this case , Brown played a central role in developing and executing the Company 's tactics and strategy merit increases without prior notice to and approval by the Union). At the January 7, 13, and 14 meetings, the parties discussed distribution of overtime, seniority, grievance and arbitration machinery, plant visitation by union officials, bulletin boards, a safety and health provision, medical examinations, waiver of bargaining during the contract terms and a vacation provision They reached agreement on plant visitation by union officials, bulletin boards, a safety and health provision (partial) and a waiver of bargaining during the contract term provision but were unable to reconcile their differences on the other issues discussed. Thus, at the beginning of the 10(b) period - February 3 - after 12 bargaining sessions spread over 6 months, the parties had reached tentative agreement on (1) a preamble, (2) union recognition, (3) no discrimination for union support or nonsupport nor because of race, etc., (4) definition of the workweek (40 hours) and for overtime payment at 1 1/2 time for work in excess thereof, (5) definition of the workday (8 hours), (6) the length of the lunch period and payment therefor under certain conditions, (7) advance notice of Saturday, Sunday or holiday work, (8) shift schedules and shift premiums, (9) a definition of seniority, (10) temporary transfers, (11) veterans reemployment rights, (12) plant visitation by union officials, (13) bulletin boards, and (14) waiver of bargaining during the contract term, plus partial agreement on (1) management rights and (2) safety and health They discussed but failed to agree on (1) seniority application to layoff, recall, and promotion, (2) establishment of grievance and arbitration machinery and a no-strike provision, (3) daily overtime and overtime for Saturday and Sunday work, (4) vacations and pay therefor, (5) overtime distribution and employee right of refusal thereof, (6) maintenance of fixed shifts and bid preference by seniority, (7) preservation of practices and customs not enumerated in the contract, (8) paid washup time, (9) leaves of absence, (10) employee discipline, (11) management rights and (12) checkoff of union dues. They did not reach the Union's proposals for: (1) paid holidays and compensation when requested to work thereon, (2) reporting pay, (3) jury service pay, (4) rest periods, (5) hospital and surgical insurance coverage and premium payment therefor, (6) pensions and profit sharing, (7) Christmas bonus, (8) wage classifications, rates of pay and progression within and between classifications and (9) the term of the contract. Employee witnesses testified that during the same period (commencing with the certification of the Union in July of 1965 and ending February 3, 1966), various management representatives informed them that: (1) there would never be a contract between the Company and the Union (Plant Manager Norman Whitaker to employee Odis Dolphus, August 1965; General Foreman John Tyler to employee Ruffin Pringle, November 1965), and (2) that the Company never would tolerate a union in the plant (Assistant Production Superintendent Joseph Varner to employee Amos Brown, late 1965; Foreman Jerry Ashy to employee Ruffin Pringle, November 1965).'° "Whitaker, Tyler, Varner, and Ashy denied making such statements, The Trial Examiner finds it unncessary to resolve the credibility issues thereby created since the statements if made were uttered prior to the 10(b), period 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Contentions of the Parties 1. The General Counsel The General Counsel alleges that during the period commencing with a date (February, 3) 6 months prior to the time the Union filed its original charge in this case and ending with the date (July 12) a strike of the Company's employees ensued, the Company sought to undermine and discredit the Union, with the expectation that at the end of the certification year (July 23) it might rid itself of the Union by securing its decertification." The General Counsel alleges that during this period the Company conducted negotiations in a manner designed to avoid the consummation of an agreement and committed various acts designed to undermine the Union and to cause the employees to lose confidence in its ability to represent them effectively. The General Counsel, in addition to alleging: (a) General bad-faith bargaining as a violation of Section 8(a)(5) and (1) of the Act, lists the following as additional specific violations thereof: b Various statements by supervisory personnel to the effect the Company never would execute a contract with the Union, that it would close its doors or move out its machinery before it would. have a Union in the plant, that the employees were being denied or having delayed their merit and other wage increases because they had chosen a Union, that a union contract would mean a reduction in working hours if achieved, that the Company would never agree to a checkoff of union dues, that if the employees struck those who did not participate would receive promotions and wage increases, that the Company had a standby crew ready to replace any employees who struck, and that any employees who engaged in a strike would be discharged; c. Withdrawal of a wage increase after the Union expressed its need to consider certain data; d. Promulgation and continued support of a contract provision which would have the effect of preventing the Union from discharging its duty of fair representation of the Company's employees, e. Unilaterally changing shift starting times and the shift assignment system and employee shift assignments without prior notice or consultation with the Union. The General Counsel also alleges that the statements set out in (a) above constitute independent violations of Section 8(a)(1) of the Act. There appears to be general agreement that the immediate event which precipitated the strike, which began about midnight on the evening of July 12, was the discharge of James H. Gray, a union committeeman. The General Counsel contends, however, that the alleged 8(a)(1) and (5) violations recited heretofore also were major factors prompting the employees to strike and the Union to sanction the strike. It is, therefore, the contention of the General Counsel that it was an unfair labor practice strike entitling the strikers to reinstatement to their former or substantially equivalent jobs upon application therefor, even if this meant the displacement of any replacements hired after the commencement of the strike It is the contention of the General Counsel that by a letter sent on July 13, the Company discharged all the "The Company filed a petition challenging the Union 's majority status on August 23, 1966 (Case 23-RM - 174) It was dismissed on November 21, 1966, by the Region due to the pendency of this case The dismissal was upheld by the General Counsel after appeal on December 23, 1966 strikers for having engaged in the strike, thereby prolonging the strike and violating Section 8(a)(3) and (1) of the Act, and that by allegedly coercive statements addressed to various employees on various dates after the strike commenced and prior to the strikers' September 9 offer to return to work, the Company committed additional violations of Section 8(a)(5) and (1) of the Act. He also contends that the Company refused to reinstate the striking employees to their former or substantially equivalent employment upon their application therefor on September 9, and on that date and subsequently solicited strikers individually and in groups smaller than the total striking group to return to work, thereby further prolonging the strike and additionally violating Section 8(a)(1) of the Act. 2 The Charging Party The Charging Party joined in the General Counsel's contentions and positions noted above, plus one addition The Charging Party alleges that James H. Gray, the union committeeman whose discharge precipitated the strike, was discharged because he refused to report to the plant manager for interrogation leading to possible disciplinary action against him without accompaniment by a union representative of his choosing, that discharge for this reason is violative of Section 8(a)(3)" and (1) of the Act, and that since the strike was precipitated in part by such discharge and unfair labor practice, it was an unfair labor practice strike. 3 The Respondent The Company states that at all times pertinent it bargained in good faith, that it made concessions, submitted proposals and counterproposals, furnished all information requested, and was at all times ready to meet and discuss all and any unresolved issues with regard to a contract, and asserts the Union and not the Company by its actions caused and prolonged the strike. It is the Company's position that the strike began as a spontaneous protest of James H. Gray's discharge, which the General Counsel determined to be for cause by his decision against issuance of a complaint on the Union's charge that Gray's discharge violated the Act, and that the strike was sanctioned by the Union in order to bring pressure upon the Company to yield to the Union's economic demands and to reinstate Gray, and, therefore, was an economic and not an unfair labor practice strike With regard to the Charging Party's contentions concerning the Gray discharge, the Company states that Gray was discharged for insubordination, i e., for refusing to comply with the order of his supervisor to report to the plant manager's office. The Company contends that since Gray had no notice or knowledge of the subject or subjects the plant manager wished to discuss with him at the time he was told either to report as ordered or leave the plant, his demand for union representation was premature. The Company denies that it made any unilateral changes in wage rates, classifications or working conditions without prior notice or consultation with the Union (asserting in addition that if any changes were made, they were made after impasse or after notice and consent, either overt or implied), asserts that while it offered a proposal concerning racial discrimination, it did "See fn 2, ibid SOUTHWESTERN PIPE, INC. 371 not insist upon its adoption, that at all times it was ready to discuss the proposal and any modification thereof or substitution therefor, that its proposal did not have the effect of barring the Union from carrying out its duty to represent all employees equally, and denies that it withdrew a wage increase because the Union indicated a need to consider relevant data. With regard to the independent 8(a)(1) statements attributed to various company supervisors, the Company denies that they occurred, states that whatever did occur did not constitute a threat or promise within the meaning of Section 8(c) of the Act and, therefore, was an exercise of privileged free speech within that Section, that the supervisors to whom the various statements were attributed were not authorized or empowered to make statements on behalf of the Company in the subject areas alleged, that such statements were contrary to the official company position stated by its authorized representative and that the Company is not responsible therefor. The Company further denies that by its February 11 letter it threatened to discharge any employees who engaged in a strike , denies that by its July 13 letter it discharged the employees who struck on the preceding evening, denies the strike was other than economic and contends that the strikers ' application for reinstatement was unconditional and that in any event it did offer them reinstatement to their former or substantially equivalent jobs upon application therefor. The Company affirmatively alleges that the following strikers are ineligible for reinstatement under any circumstances because of their involvement in acts of violence, intimidation , mass picketing and other misconduct in connection with the strike. Mack Bowie Harvey Harps R B. Chreene James Harris Ogilivia Gayfield Robert Hill General Glover Ottis (Odis9) Lewis James Gray" Frank Smith C The Issues Based upon the pleadings , evidence and contentions of the parties, the issues before the Trial Examiner are: I Did the various supervisors and management representatives make the various statements attributed to them in the complaint'? If so, were such statements coercive or promissory? May the Company be held to be responsible therefor? 2. Did the Company withdraw a wage increase from Frank Smith because the Union expressed a need to consider relevant data? 3 Did the Company' s nondiscrimination proposal preclude the Union from discharging a duty to fairly represent the Company's employees? 4. Did the Company unilaterally change the employees' shift starting times and shift assignments without prior notice to or consultation with the Union9 5. Was the Company generally bargaining in bad faith? 6. Was James H. Gray discharged for engaging in protected activity under the Act9 7 Assuming an affirmative finding on any one or more of the foregoing questions , was such act by the Company a substantial factor influencing the employees to engage in the strike and the Union to sanction the strike? 8. Did the Company discharge employees who participated in the strike? "See fn 2, ibid 9 Did the strikers make an unconditional offer to return to work? Did the Company offer them reinstatement to their former or substantially equivalent jobs9 Did the Company solicit individual strikers and small groups of strikers to return to work9 10. Assuming an affirmative finding on 8 above, and/or the first and third questions of 9 above, and/or statements referred to in 1 above made after the strike commenced, did such act by the Company prolong the strike9 II Assuming an affirmative finding on any of the foregoing, did such act violate Section 8(a) of the Act9 12. Did any of the employees named by the Company in its answer commit acts of violence , intimidation, mass picketing or other misconduct connected with the strike9 If so, does such act warrant disqualification for reinstatement? D. The February 11 Letter On February 10, the day prior to the date of the first negotiating session between the parties within the 10(b) period , part of the work force went out on strike over the discharge of two employees , Henry Brokenberry and Arthur Williams . The Union by C. T Ray immediately informed the Company the strike was not called, authorized or sanctioned by the Union , directed the strikers to return to work and requested that the Company refrain from any retaliatory action against the strikers and review the merits of the two discharges. The Company agreed and the strikers returned to work The subsequent review of the two discharges resulted in Williams' return to work (though at a different job) and the sustaining of Brokenberry ' s discharge In the interim (on February 11, the day after the strike occurred), the Company distributed the following letter to its employees. February 11, 1966 TO ALL EMPLOYEES Yesterday, a group of employees walked off their jobs because another employee had been discharged. This was an act of insubordination and defiance of authority which will not be tolerated. Employees who engage in such activity are subject to discharge and permanent replacement . This group of employees was misled and misinformed as to their rights and duties, and they came dangerously close to loss of valuable rights as a result of their misguided action. Mr Ray, of the Steelworkers Union, arrived soon after the walkout, saying that it was not authorized by the Union and he proposed to direct the men to return to work if the Company would take them back. We replied that this was our wish and intent , and Mr. Ray then sent instructions to the group to return to their jobs, which they did within about an hour after the walkout started After the men had returned to work, Mr. Ray requested that the discharged employee be rehired. The Company refused to rehire him or to consider his case under the influence of this unauthorized walkout However, arrangements were made for his case to be reviewed by Mr Rawson next week. This is in accordance with long established company policy, and Mr. Rawson will review and either confirm or modify the discharge action on the basis of his own investigation . I have already reviewed the facts and I confirmed the action of the foreman and the superintendent because I considered their decision proper. 372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have an effective procedure in this company for review of complaints It is available to all employees on request and it was never denied in this case When employees, singly or in a group, fail to follow this complaint procedure or refuse to abide by the final decision, they are guilty of insubordination This will not be permitted /s/ Norman Whitaker Norman Whitaker Plant Manager The General Counsel and the Charging Party contend that the language of this letter constitutes a threat addressed to all its employees by the Company that any future strike participant shall be discharged The Respondent states that the two employees were discharged for engaging in a slowdown, that it was determined in the hearing before a high company official conducted as a result of the Union's request for review (in which both the Union and the Company participated) that while Williams had produced some defective work, the errors could have resulted from human frailty rather than deliberate spoilage, while no reasonable explanation for Brokenberry's unsatisfactory productive efforts was made, so Williams was reinstated on a job requiring lesser skills and Brokenberry's discharge was upheld, that the letter was intended only as a warning to employees that any of their number who took matters into their own hands and participated in wildcat walkouts not called, authorized or sanctioned by the Union but rather were opposed by the Union thereby engage in unprotected activities under the Act and place their jobs in jeopardy. The language of the letter, and particularly the statements that: "Employees who engage in such activity (walking off their jobs in protest of the discharge of another employee) are subject do discharge and permanent replacement . . . When employees, singly or in a group, fail to follow this complaint procedure (review by a Company official of the disciplinary action) or refuse to abide by the final decision [of a Company official], they are guilty of insubordination This will not be permitted " (material in brackets added for clarification), in the judgment of the Trial Examiner, clearly carry the threat that any employee who refuses to accept a unilateral company decision to discharge or discipline one of their number as final and strikes in protest thereof shall be presumed guilty of insubordination and risk permanent loss of his employment. It is very well for the Company to contend that it meant to limit its threat to unprotected walkouts, but the language of the letter contains no such limitation; it conveys the message to all the employees who received it that any of their number who participates in any strike thereafter in protest of a discharge of another employee, whether that employee was discharged for union activity, for seeking to press a legitimate grievance over wages, hours or other working conditions, for assaulting a foreman, or whatever, subjects himself to discharge and replacement. On the basis of the foregoing, the Trial Examiner finds and concludes that by its February 1 l letter the Company threatened its employees with discharge for participation in either protected or unprotected concerted activity for their mutual benefit and/or protection. Inasmuch as it has been stipulated that the writer of the letter was the plant manager and the letter was written on company stationery in his official capacity, the Trial Examiner finds the Company may be held responsible therefor. E. The February Bargaining The first contract negotiations during the 10(b) period commenced on February II and continued on February 17, 21, and 25, with Ray as spokesman for the Union and Brown for the Company During the 12 negotiation sessions prior to February II, the parties had reached tentative agreement on 14 contract provisions, partial tentative agreement on 2 more, discussed but did not resolve their differences on 13 others, and had not yet taken up 9 union proposals (see II, A, above for details) During the four February sessions, the parties reconfirmed their tentative agreements in 14 subject areas and partial agreement in 2 other areas, reached further tentative agreement on leaves of. absence and jury service pay, and discussed but failed to agree on management rights, employee discipline, dues checkoff, daily and Saturday and Sunday overtime, overtime distribution and employee right of refusal, maintenance of fixed shifts and shift preference by seniority bid, seniority for purposes of layoff and promotion, establishment of grievance and arbitration machinery and a no-strike commitment, vacations, paid holidays and compensation for work thereon, reporting pay, hospital and surgical insurance coverage and premium payment therefor, pension and profit sharing, rest periods and the contract term They did not discuss the Union's proposals for paid washup time, preservation of practices not set out in contract or Christmas bonus. They discussed subcontracting and the Company stated it would submit a proposal dealing with the subject, the Company also asked for a specific proposal on wages (the Union had proposed a substantial across-the-board wage increase be granted to all employees and the wage rates in each classification be reviewed) F. The March Bargaining By March, Ray had grown apprehensive over the approaching end of the certification year (in July) with agreement achieved only in areas which he believed of lesser importance, and then, in his opinion, only where either the Company was legally obligated or the agreement coincided with the Company's previous practices or on the Company's terms (on the basis of a company proposal) or on a minor matter Ray thought that perhaps an experienced lawyer whose background matched that of Brown and who was personally and professionally acquainted with Brown might provide a better match for Brown and achieve greater progress than he had to date He called upon the Union's attorney, Chris Dixie, to take over the role of union spokesman in all subsequent negotiations Dixie entered the negotiations on March 8. All prior tentative agreements were quickly reviewed and confirmed, and tentative agreement achieved on retention of the Company's existing profit-sharing and pension plan for the term of the contract. The Company submitted information requested by the Union concerning the names, classifications and rates of pay of the employees in the unit. Dixie reiterated the Union's position concerning the illegality of the Company's proposal for an individual grievance processing system excluding the Union and the parties also discussed seniority and the selection of certain arbitrators (proposed by the Union). The meeting closed with a request by Dixie for information concerning employee dates of hire and dates in classification to ascertain whether the Company normally applied length of SOUTHWESTERN PIPE, INC 373 service as the prevailing principle in layoffs, recalls and promotions in which case Dixie stated the Union might modify its seniority proposal. The requested information was supplied by letter on March 1 l At the next meeting (March 16) Dixie acknowledged receipt of the March 11 information, stated it had not yet been correlated, and advised the Company he would submit a revised seniority proposal giving effect to the seniority principle in layoffs except where junior men possessing necessary skills had to be retained and calling for recognition of the seniority principle in promotions. The Company submitted new language for its proposed individual grievance processing but Dixie stated that the new language still would result in direct bargaining over wages, hours and working conditions between the Company and individual employees and permit individuals to process their grievances to arbitration over the opposition of the Union, both of which he declared to be unlawful Brown suggested that Dixie submit modifications which would cure these two objections. Brown submitted eight proposed classification changes to which Dixie objected, and the parties discussed a situation wherein three employees, all negro, operated the same machine at different rates of pay. At the next meeting (March 25) the Company submitted still another revision of its proposal for processing individual grievances, and proposed an arbitrator. Dixie rejected the person named and suggested a rotating panel of three. Dixie made the same objections to the illegality of the Company's proposal on individual grievance processing, to which Brown retorted that he was not making a demand for any grievance or no-strike provision. Dixie then renewed his proposal to give effect to the seniority principle in filling vacancies and promotions. He also submitted a tabulation drawn from the employment data supplied by the Company and voiced the judgment that the tabulation demonstrated that white men were paid higher wages than negro men for the same work. On this note the meeting broke up At the final meeting in March (March 28), seniority, the individual grievance and general grievance and arbitration proposals, the selection of an arbitrator (or panel of arbitrators), management rights, overtime (the Union offered to drop its request for 1 1/2 time for Saturday work if the Company would agree to daily overtime of 1 1/2 time after 8 hours and double time for Sunday work, which the Company rejected), holidays and pay for work thereon (the Union reduced its proposal from eight to seven paid holidays), hospital and surgical insurance coverage and premium payment therefor were again discussed without agreement. The Company renewed its request for a specific wage proposal but the Union declined to furnish one at that time on the ground the Company only wanted a specific proposal so it could bring the wage issue to an immediate impasse in order to free itself to make unilateral increases without notice or consultation with the Union, pointing to the numerous individual adjustments the Company had proposed and effected since bargaining had commenced. The Union reiterated its charge that Negroes were not receiving equal pay for work equal to that of white employees, with specific reference to its tabulation submitted at the end of the prior meeting, and requested further information setting out the entire history of each personnel change for each employee. Dixie proposed a substitute for the previously agreed to antidiscrimination provision which would commit the Company to a promise that it would not discriminate against any employee with regard to his wage classification, rate of pay, pay progression, promotion or other condition of employment on the sole basis of race, and suggested the company study the apparent discrepancies between the wages of white and black employees performing the same work set out in the tabulation, with particular reference to the classifications of Crane Operator and Slitter. G. The Wage Increase Withdrawal While expounding on cases of apparent wage discrimination disclosed by the tabulation, Dixie stated that Harold Montgomery, a white man, and Frank Smith, a Negro, performed identical work, but that Montgomery was classified as a Machine Operator, First Class and paid $2 95 per hour while Smith was classified as a Machine Operator, Second Class and paid $2 57 per hour, 38 cents per hour less At this point, Brown stated he wished to caucus with other management officials and left the room. Upon his return, Brown announced that the Company had been planning to upgrade Smith's classification and wage rate and offered to upgrade Smith's classification to Machine Operator, First Class and change his rate of pay to $2.95. While the parties substantially corroborate each other on the sequence of events up to this point, they differ diametrically on what occurred thereafter The union witnesses testified that Dixie accepted the offer and that later, when Dixie persisted in his request for additional information on the work histories of the employees, Brown stated that if the Union was going to persist on going further into the issue of alleged wage discriminations (which he vehemently denied existed), he would withdraw Smith's increase. The company witnesses testified that Dixie, without accepting the offer, characterized it as an admission by the Company of the validity of the Union's charge of wage discrimination based on race and charged that by this and previous piecemeal wage increase and classification changes, meanwhile failing to furnish the Union sufficient information to enable it to ascertain whether the proposed increases were eliminating or increasing wage inequities based on race within the unit, the Company had not been bargaining in good faith They testified that Brown then stated that he would furnish the information just requested by Dixie, as he had on all prior occasions, so that Dixie would have all the information he needed to evaluate the Company's proposals for employee wage increases, including that of Smith, and refrain from effecting Smith's increase until Dixie had the requested information and could evaluate the Company's proposal for Smith's increase with that information before him On April 4, the Company furnished the information requested On April 11, the Company formally submitted a proposal to upgrade Smith to Machine Operator, First Class at a rate of $2 95, together with a number of other proposed classification and wage rate changes. On May 19, the Union accepted the wage rate changes and rejected the classification changes (including that of Smith) The Trial Examiner finds there was no unequivocal acceptance of the Company's offer of an upgrade and wage increase for Smith at the March 28 meeting, but rather a seizure by the Union upon the offer as proof of the accuracy of the Union's charge of wage discrimination based on race and its charge that a review of the entire wage and classification structure was in order before the 374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merits of any individual wage and classification proposal could be determined. Viewed in this light, the action of the Company in deferring any further classification and wage rate adjustments (including that of Smith), until the Union was in possession of and had opportunity to study all the data it desired, appears more an accommodation to the Union than an arbitrary withdrawal of a previously offered classification upgrade and wage increase, and the Trial Examiner so finds H. The Alleged Supervisor Threats of March It is alleged that on or about March 15 Plant and Production Superintendent Jon Dubois interfered with, threatened, or coerced employees in the exercise of their Section 7 rights under the Act by stating that (1) the Company did not intend to consummate a contract with the Union, and (2) an employee was not receiving his merit increase because of the Union. The first claim above was supported by the testimony of employee Frederick Flowers that while he was at work at the plant in March Dubois came up to him, told him that he had been watching his work for the preceding several weeks and believed Flowers was slowing down, then stating that "if you are thinking about a Union, there is not going to be a Union This job is operated by Southwestern Pipe and it is going to be operated by Southwestern Pipe " The second claim was supported by the testimony of employee Amos Brown that while he was at work at the plant in March Dubois addressed him and asked how things were going, to which he replied that things were fine, but "Since I have made mill operator, when will I receive my increase?", to which Dubois replied, "Well, we have to see your Union about that . Now, you all have started to get the Union in The raises have to come through the Union. They have to be okayed by the Union " On cross-examination, he repeated that in essence Dubois advised him that since the employees had designated the Union to serve as their exclusive representative with regard to their wages, hours and working conditions, any wage increase he sought could not be effected until and unless the Union approved it In rebuttal testimony Dubois was asked by Company's counsel, "Now, can you recall during that same conversation or during any conversation with regard to a slowdown, saying to Frederick Flowers that if he was thinking about a union there is not going to be a union9 This job is operated by Southwestern Pipe and it is going to be operated by Southwestern Pipe9" and responded, "I am sure that I told Frederick Flowers something very similar to those words." Dubois also confirmed the substance of Brown's testimony The Company argues that the Flowers' testimony varies from and does not support the first allegation noted heretofore, and that the latter statement simply was explanatory of existing law In my judgment the Flowers' testimony sufficiently supports the allegation and in any event is within the total compass of the complaint, and he so finds, he also finds that the statement did interfere with, restrain, or coerce Flowers in the exercise of his protected Section 7 rights under the Act and constituted a threat within the meaning of Section 8(c) of the Act. Inasmuch as it is conceded that Dubois was the Company's plant and production superintendent at the time and in the exercise of that capacity at the plant at the time of his conversation, the Trial Examiner further finds that the Company may be held responsible for the statement made, N L R B v LaSalle Steel Co , 178 F 2d 829 (C A. 7), cert denied 339 U S. 963, Joy Silk Mills, Inc v. N L R B, 185 F 2d 732 (C A D.C ), cert. denied 341 U S 914; Webb Tractor, 167 NLRB No 46 As to the latter allegation, I find it an accurate explanation of the proper precedure and existing law governing the subject - a merit increase - and noncoercive in effect i The April and May Bargaining, and the Company's Nondiscrimination Proposal As noted heretofore, at the March 28 negotiations the Union submitted a substitute nondiscrimination proposal for its original (and accepted) proposal At the next meeting (April 14), the Company countered with the following. 30 2 2 It is recognized the Employer follows an informal system of merit evaluation, on the basis of which wages are determined within the range of wage rates established for the classification of employee. No disparity of wage rates within the range of wage rates for the employee's classification, pursuant to Employer's merit program, shall be considered as evidence of discrimination as defined herein 30.2.4. It is recognized that the Employer follows a system of employee classification in which all employees are classified according to the types of work which they are capable of performing, rather than a system of job classifications in which the jobs are classified and evaluated and a rate of pay assigned to such job The fact that employees of different classifications and disparate rates of pay are assigned to the performance of the same work shall not be considered discriminatory as such term is defined herein, provided, however, that where discrimination on the basis of sex is involved, special standards apply. The Union indicated it would have to study the proposal and suggested all else be put aside while the parties attempted to resolve their differences in this area In accordance therewith, the only other matters taken up (briefly) at the April 14 meeting were the selection of arbitrators (with no decision) and the Company's April 11 list of proposed upgrades and wage increases (with no agreement) At the next meeting (May 19), the Union approved the wage increases set out in the Company's April 11 proposal and rejected the proposed classification changes The Company proposed an increase for another employee and delivered a copy of the existing hospital and surgical plan The Union reserved judgment on the increase. Dixie opened the discrimination issue by citing specific cases from his March 28 tabulation of what appeared to him to be differences in pay based on race and challenged Brown to explain the differences on any other ground Brown continued to insist that no discrimination existed and requested that Dixie dictate to his secretary specific details of situations wherein Dixie believed serious differences existed between the wage rates and/or classifications of white and negro employees based on race so that Brown might have them before him in writing for study and reply. Dixie complied with his request. Brown promised an answer after he had the written document before him and an opportunity to analyze its contents The parties then turned to the Company's discrimination proposal. Dixie indicated the Union's acceptance of paragraphs 30.1, 30 2 6, 30.3, 30.4, and SOUTHWESTERN PIPE, INC. 30 7. He suggested modifications of paragraphs 30.2, 30 2 1, and 30 2 7 by the addition of the words "in whole or in part" after the last word in the second sentence of 30 2, the word "been" in the second line of 30 2 1, and the word "not" in the third line of 30 2.7, a rewrite of 30 2.3's last sentence and objected to the second sentence of 30 2.2, the last sentence of 30.2 3, the second sentence of 30 2 4, the last part of the first sentence of 30 2.5, the last sentence of 30 5 and all of 30 8, he suggested adding to 30 2 8 the words "but any existing discrimination will be corrected", and stated 30 6 was acceptable if the parties could agree on the consultant. Dixie's major objections were twofold, to the provisions that (I) wage rate disparities within a job classification and (2) wage rate and/or job classification disparities between employees performing the same or similar work were not to be considered as evidence of discrimination as that word was defined in 30.2. Dixie pointed out that these were the very criteria the Union relied upon to make its case of discrimination (witness Dixie's questions dictated to Brown's secretary just a short time previous). Dixie also objected to the provision requiring the Union to refrain from publicizing any discrimination problem to the employees, the union membership or the general public prior to attempted adjustment thereof under the procedures set out in the company proposal. Dixie objected initially to the provisions requiring the Union to agree: (1) that no known discrimination existed in the plant as of the date of execution of the contract, and (2) to exclude discrimination cases from the grievance and arbitration machinery established under the contract. As to the former, Brown proposed that the parties review the work histories of every employee in the unit (see the first sentence of 30.5 which the Union accepted) and adjust every question of alleged discrimination prior to execution of the contract so the parties could in good faith so stipulate, noting that any cases of alleged discrimination developed thereafter would be processed in accordance with the procedure set out in the proposal The Union appeared to accept this program for adjustment of alleged cases of discrimination. As to the exclusionary provision, Brown and Dixie discussed the Civil Rights Act of 1964 and agreed that any cases of provable wage or classification discrimination based solely on race were amenable to administrative and judicial adjustment under the provisions of that Act if not adjusted under the contract procedures proposed by the Company In recognition thereof, Dixie proposed and Brown accepted an amendment to 30.7 after "agencies" adding the words "and courts " On May 23, Brown sent a typed copy of the material which Dixie had dictated on May 19 on the question of discrimination to Dixie for his perusal and editing. On June 2, Dixie returned the document to Brown with a few minor changes thereon. On June 10, Brown wrote Dixie stating that he had completed his analysis on the alleged racial discrimination situations suggested in Dixie's statement and that the cases cited (differences in rates of pay within classifications between whites and Negroes and differences in classifications and rates of pay between whites and Negroes allegedly performing the same or similar work) were explainable on factors other than race. He proposed that the parties meet as soon as possible to select the consultant suggested in 30 6 of the Company's proposal so that his services might be utilized in analyzing the employment histories of all employees to adjust disputes involving racial discrimination, if any, and to negotiate on other provisions of the contract. This was the 375 last exchange between the parties concerning the discrimination issue prior to the strike of July 12. Up to the time of the strike, the Company neither withdrew nor modified the two proposals discussed heretofore, despite the apparent illegality thereof A difference in wage rates between a Negro and a white employee in the same classification may be justified on many grounds - a difference in hiring dates, with a longer-service white having progress further in the rate range than the Negro, a difference in abilities in favor of the white which, under a merit rating system, would justify a higher rate within the classification for the white (assuming a bona fide difference); the possession of more varied or residual skills by a white than by a Negro enabled the utilization of the white at jobs in the plant which the Negro could not perform, or his utilization on a wider spectrum of the work within the total compass of the classification than the Negro; etc. One or more of these reasons, or other reasons also might explain a difference in classifications and wage rates between a Negro and white performing the same work. However, what of the case where the facts disclosed that the Negro had the earlier date of employment in the classification, possessed superior skills and had a higher production rate but the Negro nevertheless was placed in a lower classification at a lower rate or was in the same classification at a lower rate' In such a case, the wage and classification disparity would be the key evidence supporting a charge of racial discrimination, but, under a literal application of the proposed language of 30.2 2 and 30.2.4, "such disparity shall not be considered discriminatory as such term is defined herein " It appears that the Union would be barred from processing a case on behalf of a Negro employee in that situation, unless one reads the last sentence of the definition clause (that disparity alone is no indication of discrimination) modifies the literal application of 30 2 2 and 30.2.4 to mean that the mere existence of disparity in wage rates and classifications shall not be sufficient evidence, in and of itself, to warrant a finding of discrimination The Trial Examiner is unable to read this meaning into the two sections and, therefore, finds that the proposal in these areas would preclude the Union from processing the case described. The next question is whether these proposals would prevent the Union from discharging its duty of fair representation In July of 1965, the Board certified to the parties that a majority of the Company's employees in an appropriate unit in a secret ballot had designated the Union as their exclusive representative for the purpose of bargaining collectively with the Company concerning their wages, hours and other conditions of employment. Under Section 9 of the Act, that certification gave the Union the power to enter into binding agreement concerning the wages, hours and working conditions of all the employees in the unit However, the statutory grant of such power levies a corresponding responsibility to represent all such employees fairly, i.e., in a nondiscriminatory manner, Ford Motor Company v. Huffman, 345 U.S. 330 The Board has held that failure to so represent constitutes ground for revocation of a Union's certification, Independent Metal Workers Union, Local No I (Hughes Tool Company), 147 NLRB 1573; Local 1367, International Longshoremen's Association (Galveston Maritime Association), 148 NLRB 897. More recently, a majority of the Board (with judicial approval) extended the doctrine, holding that a breach of such duty by a 376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union violated Section 8(b)(1)(A), (2), and (3) of the Act, Local Union No 12, United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, 150 NLRB 312, enfd 368 F 2d 12 (C A 5) In addition, violation of such duty exposes the Union to suit for injunction and/or money damages under Section 301 of the Act, Humphrey v Moore, 375 U S 335, Vaca v Sipes, 386 U.S. 171, with further exposure to liability under Section 703(c)(1) of the Civil Rights Act, 42 USCA Sec 2000e-2(c)(l) On March 8, the Union commenced to correlate data with regard to each employee's job duties, job classification, rate of pay, color and union membership On the basis of that analysis, it appeared to the Union that wage inequities existed (1) between negro and white employees within the same job classifications and (2) negro and white employees performing the same work but in different job classifications at different rates of pay. In both these areas, the Union believed it discerned a pattern of discrimination wherein the Company paid Negroes lower wage rates and assigned them to lower wage classifications than whites performing the same work On March 28, the Union furnished the Company with the tabulation of employee names, colors (white or Negro), classifications, job duties and rates of pay upon which it based its belief. At that time the Union proposed a substitute for the general antidiscrimination provision agreed upon at an earlier date, which substitute was specific in barring wage and/or classification discrimination on the sole basis of race, and suggested the Company study the union tabulation for examples of the existing situations which needed rectification (job classification upgradings and wage increases which would equalize the classifications and wage rates of all employees performing the same work, regardless of color) Clearly the Union's proposal was within the normal range of compulsory bargaining subjects, i e , wage adjustments. Instead of responding to the union suggestion that it study the union tabulation and make a rational explanation of those discrepancies which the tabulation showed and adjust those where no such explanation was possible, on April 11 the Company proposed that the Union agree to foreclose itself from advancing any wage adjustment proposal for any Negro employee based on evidence that such negro possessed equal or superior skills, service and productive efficiency as whites performing the same work but receiving higher pay and a higher classification ranking At the same time, the Company maintained the position it had taken continuously on this issue that there was no racial discrimination in the plant meanwhile ignoring the union tabulation and failing to submit any information which would explain the differences appearing therein on other than racial grounds At the May 19 meeting, the Company persisted in this position and on June 10, while suggesting meetings at some later date after a neutral consultant had been chosen to review the wage histories of all employees in the unit and discuss the 24 specific instances the Union had previously cited of what it believed to be obvious cases of wage discrimination based on race, nevertheless repeated its assertion that no discrimination existed and stated the cited cases were without merit I find that were the Union to accept the Company's proposed 30 2 2 and 30 2 4, it would be foreclosed from prosecuting any case on behalf of a negro employee who, despite equal length of service, skill, productivity, etc , with a white performing the same work, nevertheless received a lower rate of pay and a lower classification, and further finds that acceptance of those provisions by the Union would breach its duty to fairly represent the Company's employees in the unit and expose it to legal liabilities under Section 301 of the Act and Title VIi of the Civil Rights Act J The Alleged Supervisor Threats of April-June I The allegations It is alleged that in April and May Plant and Production Superintendent Dubois told employees that the Company would never deal with a union, that the Company did not intend to sign a union contract (a repeat of his March statement), that the employees would be receiving higher wages if there wasn't a union, and that if a union contract ever was reached, the employees' working hours would be reduced It is alleged that Foreman Nearoup Howard on or about April 15 also told an employee that he was not receiving a merit increase because of the Union, that Foreman Foman Tyler made a similar statement on or about May I, plus statements on or about that date and on or about June 5, that working hours would be reduced if any labor contract was reached, that if the employees went on strike, those employees who did not strike would receive promotions and wage increases while those who struck would be replaced by standby crews the Company had ready and waiting It is alleged that Foreman Jerry Ashy told an employee on or about May 12 that he was not receiving a merit increase because of the Union and that on or about May 15 Warehouse Foreman George Adams told an employee the Company did not intend to sign a union contract. 2. Jon Dubois Employee Sidney Benjamin testified that, while he was sweeping up in his work area sometime in May, Dubois approached him and, in the course of their conversation, in response to an inquiry from Benjamin about a raise he had requested earlier, stated that he could not give Benjamin a raise just then because of the Union, that there were many other employees who deserved raises but he couldn't give them any either just then because of the Union, and that the employees would be making more money if it were not for the Union Benjamin also testified to a conversation a few weeks later at the plant in which Dubois asked him what he thought about the Union and countered the response it was all right with the statement that the Company just could not operate with a union, and that when queried as to his reason for that statement, Dubois cited the example of Tex-Tube, another company, stating that it had a 6-day weekly work schedule until it was organized but after the Union got in and secured a contract the work schedule dropped and closed with the statement that Southwestern Pipe would shut its doors before it would have a union in the plant, before it would sign a contract with the Union. Employee Mack Bowie testified that in the latter part of April or early part of May Dubois approached him at the job and, inter alia, commented that the Brown & Root operation was so much larger an operation within the complex than Southwestern Pipe that the Southwestern Pipe mill would be closed down before a union was permitted to get onto the premises through the back door Dubois confirmed the testimony of Benjamin and Bowie that conversations had taken place between them about SOUTHWESTERN PIPE, INC. the times noted, but stated that with regard to a raise, all he did was try to explain to Benjamin the way that an employee received a wage increase and that it was a "little different that what it had previously been." Dubois confirmed that he asked Benjamin what he thought of the Union in another conversation, but denied that he told Benjamin that the Company could not operate with a union or that Southwestern Pipe would shut down before letting a union in, but merely tried to explain some of the advantages and disadvantages of the Southwestern Pipe way of working as compared with a unionized plant, and may have contrasted Southwestern Pipe with Tex-Tube and pointing out that unions usually were opposed to a lot of overtime, that overtime had been cut down at Tex-Tube after the union got in there, that a lot of overtime was being assigned at Southwestern Pipe, and that employees who worked a lot of overtime had higher yearly earnings than they would if they just worked a 40-hour week, even if their rates were higher. Dubois conceded he discussed the relative sizes of the Brown & Root and Southwestern Pipe operations and the fact the pipe mill was located behind the former's main offices (at its "back door"), but denied that he told Bowie the pipe mill would be closed down before a union was tolerated on the premises 3 Nearoup Howard and Foman Tyler Employee Odis Dolphus testified that in late April he addressed an inquiry to Foreman Nearoup Howard about a pay raise he assumed he would receive when he was assigned to operate the test rack and still hadn't received when assigned to operate the grider He testified that Howard informed him that he couldn't be given a raise "because the Union had them tied up" without further explanation Dolphus testified that in May another foreman, Foman Tyler, asked him if he had received his pay raise yet and, receiving a negative answer, stated "this is what the Union will do for you " Dolphus testified that Tyler asked him if he could get by on a 5-day workweek (Dolphus was working 6 days and receiving 1 1/2 time for the sixth day) and commented that was what the Union was doing, cutting it back to a 5-day week Dolphus also related a conversation in June with both foremen wherein he asked about the possibility of his promotion to a foreman job vacancy, in the course of which Tyler told Dolphus the Company had a full crew waiting to take the places of any employees who went on strike and those employees who stayed in the plant when the strike came would get the good jobs vacated by the strikers Howard testified that he recommended a wage increase and job classification change for Dolphus and that the Company's proposal therefor and request for concurrence therein was submitted by the Company to the Union in writing on April 14 (in the same document wherein a wage increase and classification change was proposed for Frank Smith) He testified he correctly informed Dolphus in late April that his increase was tied up by the Union in that it was awaiting union action on the April 14 proposal (which was approved as to the increase and denied as to the classification change on May 19) Tyler denied that he told Dolphus the Company had a full crew waiting to take over the jobs of any strikers and that the good jobs vacated by the strikers would be filled by those employees who did not join in the strike 14 "Respondent states at p 112 of its brief that it did have a full crew available to take over operation of the plant in the event a strike occurred 4 Jerry Ashy 377 Employee Albert Butler testified that about 2 months before the July 12 strike he asked Foreman Jerry Ashy about a raise and Ashy replied that Butler would have to let the Union get his raise. Ashy testified he did not recall the statement attributed to him but very likely he did tell Butler that he would not give him a raise and that Butler's only recourse was to have the Union try to get him one 5 George Adams Employee Floy Shepherd testified that around the middle of May" Foreman George Adams engaged him in conversation at his machine, asking him what he thought about a change from fixed to rotating shifts and that he replied it didn't bother him one way or the other but that he favored the change, that Adams then commented on the Union, stating that it was never going to get a contract (Shepherd was a union member of the negotiating committee) Adams denied ever having a conversation with Shepherd regarding the Union or a contract 6 The statements - summary I find that the subject of wage increases was discussed between Jon Dubois and Sidney Benjamin, Nearoup Howard and Odis Dolphus, Foman Tyler and Odis Dolphus, and Jerry Ashy and Albert Butler during April and/or May, that Ashy told Butler he would not give him an increase and it was up to him to try to get an increase through the Union, that Howard and Tyler informed Dolphus of the actual situation regarding his wage increase, i e., that it had been proposed by the Company and was held up awaiting the Union's concurrence therewith, that Dubois went beyond an explanation of the procedure for securing wage increases to suggest both that Benjamin and other employees were being denied wage increases and higher earnings because they decided on union representation and to support traditional union objectives, and that Tyler went beyond his explanation of the status of Dolphus' wage increase to suggest that Dolphus' continued support of the Union's effort to accomplish its traditional objective of wage rates sufficient to support a fair standard of living on a working schedule of 8 hours per day, 5 days per week, would result in the Company's lowering of his and his fellow employees' workweek and weekly wages i 6 I further find that the subjects of a union contract and plant closure were discussed by Dubois with both Benjamin and Bowie and by Adams with Shepherd in April and/or May and that in the course of those discussions Dubois and Adams conveyed the message that the Company was not going to tolerate union standards or union representation on the premises jointly occupied by and that it did so when the strike occurred within the span of one shift after the time the strike commenced "He later changed his testimony , attributing a June date to the conversation, by relating it as having occurred after the change from fixed to rotating shifts, which occurred in the latter part of June "When "suggestions" or "predictions " are statements of what the employer can and will do, as here, they constitute unlawful threats and not privileged expressions of opinion under Sec 8(c) of the Act See N L R B v Kolmar Laboratories , Inc , 387 F 2d 833 (C A 7), Wausau Steel Corporation v N L R B, 377 F 2d 369 (C A 7), International Union of Electrical, Radio and Machine Workers , AFL-CIO v N L R B, 289 F 2d 757 (CADC) 378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown & Root and Southwestern Pipe I further find that Tyler informed Dolphus that the Company had a crew standing by to replace any Company employees who engaged in a strike and that those employees who refrained from striking would receive preferential treatment in filling any job vacancies created by the strike It is apparent that the supervisors took their cue in making statements to the employees from the propaganda distributed by the Company in the course of opposing the Union's efforts to organize the plant, since much of that material draws upon comparisons with Tex-Tube, states that Southwestern Pipe will not agree to the contract provisions attained by the Union there, that the Union will be forced to strike to attempt to get them, that the Company will replace the strikers, that all the employees will gain for their union support is loss of their jobs, and that the Company as the result of the union certification had to temporarily refrain from implementing its program for wage reviews and increases It was not difficult for the supervisors, reading this line, to go one step further and predict plant closure before acceptance of the Union and the contract terms it normally sought The employee witnesses' testimony to the conversations was substantially corroborated by the supervisor witnesses except in the key details, and it was well for them to do since, as the Company points out, its official policy announced by its top officials, was that only its top spokesman was to enunciate the Company's position and policies vis-a-vis the Union. My findings above are based upon the factors just recited plus the nature and character of the testimony as it developed at the hearing and my observation of the demeanor of the respective witnesses 7. The effect of the statements The Trial Examiner finds that Ashy's statement to Butler and the statements of Howard and Tyler to Dolphus of the actual situation regarding Dolphus' wage increase were noncoercive I find that Dubois and Tyler interfered with, restrained , and coerced Benjamin and Dolphus by Dubois ' statement that Benjamin and his fellow employees' support of the Union was causing the Company to withhold wage increases from them that they would otherwise receive and by Tyler' s statements that Dolphus and his fellow employees' continued support of the Union would cause the Company to reduce the scheduled workweek and that all strikers would be replaced immediately and any good jobs vacated by them given to nonstrikers I also find that the statements of Dubois to Benjamin and Bowie and of Adams to Shepherd that the Company would close the plant before it let a union in or signed a union contract interfered with, restrained , and coerced the three employees named. 8. Responsibility of the Company therefor K The June Shift Changes Prior to the Union's July 1965 certification and to June of 1966, the Company maintained a three-shift operation (8 a m -4 p m, 4 pm - midnight, midnight - 8 am) and made permanent employee shift assignments Many long-service employees, including many of the union leaders, were assigned to the less desirable afternoon (swing) and night (graveyard) shifts. The Union proposed early in the negotiations that the current practice of fixed shift assignments be preserved but that employees be afforded the right to exercise shift preference on the basis of their length of service (seniority), and that all existing benefits not specifically enumerated in the contract be continued unchanged during its term except on mutual agreement between the Company and the Union to the contrary The Company countered with language in its management rights provision proposal which it believed would assure to it the sole and exclusive right to assign employees to shifts as it pleased and a waiver provision proposal which it believed would assure to it complete freedom of action in areas not specifically set out in the contract The parties agreed at the outset that any agreements reached during the negotiations were tentative and conditioned on agreement on a complete contract and at no time subsequent modified this agreement The Union further indicated during the negotiations that all its proposals were to be considered active proposals pending complete agreement. The Company actively pursued its waiver and management rights proposals." The Company was acutely aware of dissatisfaction among the swing and graveyard shift employees and the consequent appeal of the union proposal, particularly to the long-service employees. In early June, the Company had its supervisors conduct a written poll among the employees to determine their receptivity to a change from the existing system of employee assignment to fixed shifts to a system of 4-week rotating shift assignments, i e , 4 weeks on day shift, 4 weeks on swing shift, 4 weeks on graveyard shift, etc Generally the day shift employees opposed the change while the employees on the other shifts supported it " In any event, on June 10 the Company posted the following notice on its bulletin boards Plant Notice Beginning Monday, June 13, 1966, regular shift working hours will become effective as follows Day Shift 7:00 A.M. to 3 00 P M. Swing Shift 3 00 P.M. to 11 00 P M Graveyard Shift 11.00 P.M to 7 00 A M. Beginning Monday, June 20, 1966, certain departments within the plant will begin a trial rotation of shifts on a 4 weeks rotation basis. Your immediate supervisor will While the Company disclaims responsibility for the statements made by the supervisors on the ground its official policy differed from that expressed by such supervisors and its chief spokesman so declared, it has generally been held that the Company is nevertheless responsible therefor (see cases cited in Section II, H, above and N L R B v. Schaefer-Hitchcock Company, 131 F.2d 1004, 1007 (C A 9), N L R. B v. Cities Service Oil Company, 129 F.2d 933, 937 (C.A 2), and I so find "The respective proposals were discussed at various negotiations sessions both prior to and during the 10(b) period and were tentatively resolved in November 1966 (after most of the Union's supporters among the employees had been replaced in the plant and the strike had been abandoned) with the Union 's acceptance of the Company 's proposals and abandonment of its own "A company official advised an employee who wished to change his response in the poll that he would make the change but it did not really matter since the Company was going to make the change anyway SOUTHWESTERN PIPE, INC advise you regarding this change /s/ Norman Whitaker Norman Whitaker Plant Manager The changes were carried out in accordance with the notice It is undisputed that the Company did not notify or consult with the Union at any time prior to conducting its poll, posting its notice or changing the employees' shift starting times and shift assignments On the basis of the foregoing, the Trial Examiner finds that the Company unilaterally and without prior notice to or consultation with the Union in early June queried its employees' desires re changes in the shift assignment system by means of a written poll, on June 10 announced its decision to change from a fixed shift assignment system to a rotating shift assignment system on a 4-week rotation and to change the start and quitting times of each shift, and on June 13 and 20 made the respective changes, and thereby failed or refused to bargain in good faith, N L R B v Katz, 369 U.S 736, Smith Cabinet Manufacturing Company, Inc, 147 NLRB 1506, etc L. The Union Reactions and Reports The Union generally kept its membership informed on matters affecting them and its reaction to the events which transpired in the negotiations and at the plant through Sunday meetings and the constant contact between its committeemen and the employees at the plant. At about the same time he felt it necessary to bring Dixie into the negotiations (March), Ray reported his reaction to the Company's tactics and strategy in the bargaining sessions (see Section II, F, above) at a union meeting (March 13) and took a strike vote The vote was practically unanimous The International Union about a week later authorized Ray to release its strike sanction whenever in his and the committees' judgment the situation warranted a strike Dixie attended a membership meeting in early May. He reported his discouragement over the Company's conduct in the negotiations, particularly with reference to what he considered its elaborate and unlawful proposals to establish a complaint procedure wherein individual employees could bargain with the Company concerning wages, hours and working conditions and reach agreement thereon without the intervention of the Union so long as the matter was not specifically covered by the contract and to establish a procedure for processing discrimination disputes wherein the Union would be barred from utilizing the basic evidence it had developed on the subject. Dixie confirmed Ray's earlier expressed view that the Company was not bargaining in good faith The committeemen likewise were conveying to the employees during the entire 10(b) period reactions similar to that expressed by Dixie and Ray based upon the Company's actions and events described in this report. M. The Company Motive During the 10(b) Period Preceding the Strike As noted heretofore, at the commencement of the 10(b) period (early February), the parties had reached tentative settlements in 14 subject areas and partial agreement in 2 others. Except in minor matters, all of the settlements reached concerned subjects either where the Company was legally obligated to perform (payment of 1 1/2 time after 40 hours - Fair Labor Standards Act; veterans reemployment rights - Veterans Reemployment Act; 379 union recognition - National Labor Relations Act, etc ) or where the settlement conformed to existing company practices (lunch periods, shift schedules and premiums, etc ) By the last negotiations session prior to the strike (May 19), the parties reached tentative settlements in only three more areas (leaves of absence, jury service and retention of the Company's profit-sharing and pension plan) and those on the basis of existing practice. While Section 8(d) of the Act limits the obligation of the parties to meeting at reasonable times and places and does not compel them to agree to any proposal or to make any concession, it and Section 8(a) of the Act does require that each party bargain in good faith with respect to wages, hours and other terms and conditions of employment Based upon the totality of the Company's conduct heretofore enumerated, I find that in the period commencing with early February to the date the strike occurred the Company did not bargain in good faith There is no doubt of the Company's initial opposition to having a union in the plant; witness its campaign propaganda Its continued opposition to the Union is evidenced by its refusal to go beyond the technical minimums (meeting, discussing and making concessions only in areas of legal obligation, conformity to existing practice or on minor matters) in the negotiations during the 10(b) period prior to the strike which, coupled with its active advancement of proposals no union could possibly accept (individual bargaining, bar from use of wage data in discrimination cases), meanwhile making unilateral changes in working conditions accompanied by threats of earning reduction, job replacement, no contract protection and plant closure, is hardly conducive to a finding that subsequent to the Union's certification the Company accepted the employees' choice of union representation and was negotiating with the Union in a good-faith attempt to arrive at a mutually acceptable contract Based upon his earlier findings concerning the threatening nature of the Company's February 11 letter, Dubois' March threat to Flowers, the Company's April 14 unlawful nondiscrimination proposal, the threats by Dubois, Tyler, and Adams to Benjamin, Dolphus, and Shepherd of economic loss, plant closure and no contract, plus the advancement of obviously objectionable proposals such as individual bargaining on matters not covered by the contract coupled with a proposal wherein the Union would waive its right to bargain on such matters and the Company would have complete discretion therein, etc , I find and conclude that the Company was not bargaining in good faith in the 10(b) period immediately preceding the July 12 strike. N The Gray Discharge Word reached the plant manager, Norman Whitaker, that an altercation had taken place on July 11 between James H. Gray and his supervisor in which the latter upbraided Gray for his failure to comply with a company requirement to wear safety shoes and the former became abusive and threatening to the foreman. Whitaker decided to talk to Gray about the matter and get his story and so, on July 12, he sent word that he wanted Gray to report to his office when he came into work (Gray worked the 11 p.m.-8 a in. graveyard shift). Gray refused to go unless accompanied by his committee (Gray himself was a union committeeman). Whitaker directed a supervisor to tell Gray either to report to his office, alone, or leave the plant. Gray elected the latter course. 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 22, the Charging Party commenced its unsuccessful effort to persuade the General Counsel to issue a complaint on its charge that Gray was discharged because of his activities for and membership in the Union The General Counsel refused to issue such complaint, in essence finding that Gray was discharged for cause and not because of his activities on behalf of or membership in the Union. In view of this determination by the General Counsel, the Trial Examiner denied the Charging Party's motion in the course of the hearing to amend the complaint and add the name of James H Gray to the list of alleged discrimmatees contained on an attachment thereto as to whom reinstatement was sought On December 8, 1967, the Charging Party in essence renewed his motion by letter, citing the case of Texaco, Inc , Houston Producing Division, 168 NLRB No 49, as grounds therefor. Respondent opposed on the ground Texaco was not in point since no proceeding was conducted regarding Gray's alleged misconduct at which any question of his entitlement to representation could be raised and Gray elected to leave the plant without at any time knowing the reason why Whitaker wanted to see him (it could have been to discuss an insurance claim, another employee, etc ) He also noted that the General Counsel had control of the pleadings and had seen fit not to add Gray's name to the list of alleged discrimmatees and that the issue had not been litigated before me. The General Counsel also filed opposition on the ground the Charging Party's letter was improperly filed as a supplemental brief not authorized by the Board's rules and because the General Counsel fully considered the Union's charge with respect to Gray with awareness of the fact that complaint had issued in the Texaco case and decided that a similar complaint was not warranted in this case and the Texaco decision in nowise changed that view On January 2, 1968, the Trial Examiner advised the parties he would adhere to the ruling made at the hearing denying Charging Party's motion to amend the complaint to include James H. Gray as an alleged discrimmatee The record discloses that Whitaker wished to see Gray in order to query him with regard to a reported altercation between Gray and his foreman the previous day, clearly it is possible (if not probable) that if in that interrogation Whitaker secured admissions from Gray that he had been abusive and threatened his foreman, discipline would have been forthcoming. A question then arises as to whether Texaco stands for the proposition that an employee is entitled to union representation on his request at an interrogation leading toward possible discipline, does it follow, then, that on the basis of the record disclosure that Gray was discharged for exercising his lawful right to refuse to attend a disciplinary interview without union representation support a finding that a strike based in part on that discharge was an unfair labor practice strike9 In my view such a finding would be supportable were it not for the fact Gray did not know but could only have suspected that Whitaker intended to conduct a disciplinary interview; this same state of knowledge concerning the character of the interview must be imputed to the employees and the Union. Had Gray attended Whitaker as requested and, upon learning that Whitaker wished to secure admissions from him on the basis of which disciplinary action was to be taken and which were to be used as evidence against him in the event he and the Union protested, denial of his request for union representation at that point and discharge for refusal to participate without it would come within the purview of the Texaco case and warrant consideration on the issue of whether a subsequent strike in protest of such a discharge was an unfair labor practice strike 0 The Strike and its Causes When the employees on Gray's shift learned what had happened and other committeemen were apprised thereof, it was felt that this was the final straw, that this was the finishing touch to the frustrations and dissatisfactions which had developed among them over the reported lack of progress and failure of the Company to bargain in good faith in the negotiations They, therefore, went out on strike shortly before midnight on July 12. Both employees and committeemen testified their motivations in participating in a strike following the Gray discharge was a mixed bag, triggered by the discharge but resulting from their accumulated frustrations over the Company's actions noted heretofore as evidence of its failure to bargain in good faith. On consultation between Ray and the committee, the Union's formal strike sanction was released for the same reasons. I therefore, find that the Company's failure or refusal to bargain in good faith in the negotiations preceding the strike and its effecting unilateral changes in working conditions and its threats to employees were substantial motivating factors precipitating the employees' decision to strike on July 12 and the Union's decision to sanction and support such strike P The July 13 Letter The next day after the strike commenced, the Company by Attorney Brown sent the following letter to the Union Mr. C T. Ray United Steelworkers of America 1104 Continental Bldg Houston, Texas Re. Southwestern Pipe, Inc Dear Mr Ray As you know, the strike which commenced just after midnight on the morning of Wednesday, July 13, 1966, occurred as a walk-out lead by J H. Grey. Mr. Grey's supervisor had instructed him, when he had arrived at work for the beginning of his shift, to report to the plant manager. Mr Grey refused to carry out these instructions unless he could carry with him a committee, and he was told by the foreman that the instructions were for J. H. Grey to report and that unless he did report as instructed he would not be allowed to work J H Grey refused to carry out these orders and left the premises taking with him many of the other workers. For this act of insubordination and refusal to obey orders, Mr. Grey has been terminated as an employee of Southwestern Pipe, Inc. With respect to the other strikers, the plant manager has been given the following instructions. I J H Grey is terminated immediately for insubordination. 2. All other strikers are terminated immediately for failure to report to work 3. All employees who do report to work, even after initially participating in the strike, will be reinstated except: (a) J. H Grey (b) any other person who has been permanently replaced. SOUTHWESTERN PIPE, INC. 4 Temporary replacements are to be employed where ever required in order to continue operation of the plant 5 Permanent replacements for all strikers will be obtained as quickly as qualified persons can be recruited In this connection (a) no regard will be given to shifts or department assignments (b) Primary emphasis will be placed upon replacing men in key positions in the mill. 6 An attempt will be made to fill the vacancies in key positions by promotion of existing employees who are continuing to work and who are qualified to fill the positions vacated by strikers We will request that you convey to all of the striking employees that you represent a full explanation of this action being taken by the Company We hope that you will prevail upon the employees to call off their strike and return to work immediately so as to minimize the risk that they will lose their position by replacement. Very truly yours, /s/ William A. Brown William A. Brown The General Counsel and Charging Party contend that by this letter (and termination slips sent the individual employees containing the notation, termination date - July 13, 1966 reason for termination - failure to report for work) the Company discharged employees who participated in the strike. The Respondent contends that the word "terminate" does not mean "discharge" and is only an administrative device employed by the Company for its convenience in closing pay records prior to end of the normal pay periods to permit immediate payment of wages due and for its effect in similar areas (pension and profit sharing, hospital and surgical insurance, etc ). It is noted at the outset that both J. H Gray and all other strikers were "terminated", however, the Company does not quibble over the use of the word "discharge" as correctly characterizing its action concerning Gray It is notable that the letter of July 13 carries out the exact terms of the February It discharge threat and contains the very promises and assurances expressed by Foreman Tyler to employee Dolphus - that the strikers would be replaced immediately and the nonstrikers would be promoted. In addition, the writer of the letter - Mr Brown - stated to Union Representative Smith when he advised Brown several of the strikers were coming to the plant to collect their checks that. "They are no longer employees of the Company. Our position is that they have been terminated and we don't want them around our property any longer " In addition, the Company informed the Texas Employment Commission in response to an inquiry as to the reason for their unemployment that the strikers' "employment was terminated on July 13, 1966 when (they) failed to report to work because of (their) participation in a labor dispute " Certainly the Company's action was consistent throughout - and in accord with a provision of its personnel manual for both Brown & Root and Southwestern Pipe, wherein it is directed that employees shall be terminated for failure to report to work "in all cases of failure to report because of labor distrubances, strike, picketing, etc." The Company correctly states that it did restore to employment strikers who abandoned the strike and applied for a job before their former jobs were filled by a replacement. However, this does not destroy the message conveyed by the letter - that all strikers were discharged; that permanent replacements were being hired to replace 381 all strikers, and that only strikers who abandoned the strike and applied for work before permanent replacements were secured for their jobs would be rehired. It is the message conveyed to the employees that is determinative. N L R B v Comfort, Inc , 365 F.2d 867 (CA 8). Based on the foregoing, I find that by its July 13 letter the Company discharged those of its employees who engaged in a strike commencing July 12 because of their participation in the strike Q. The Alleged Supervisor Statements of July Employee Frank Smith testified that about a week or 10 days after the strike started Superintendent Dubois stopped his auto near the picket tent outside the plant gate and he asked Dubois to loan him $5, to which Dubois replied that he didn't have any money and suggested that Smith come back to work and earn some; that he replied he would not come back until the Company signed a contract, to which Dubois rejoined with the statement that "This Company is not going to sign a contract I have told you over and over that Brown & Root will never sign a contract " Smith testified that employee J C. Bradshaw then came near and asked Dubois when the Company was going to sign a contract, to which Dubois replied that there wasn't ever going to be any contract Neither Bradshaw nor Glover, who Smith testified responded in the affirmative when he asked him if he heard Dubois' statement, corroborated Smith's testimony. Smith's pretrial affidavit stated that Dubois was on foot, Dubois concedes on a few occasions he spoke to the pickets on going off shift from his auto, that Smith did ask him for money on one occasion which he refused to supply on the grounds he did not have any, but denied any conversation with Smith regarding a contract It is difficult to reconcile Smith's testimony that Dubois stated at the gate he had told Smith over and over that Brown & Root will never sign a contract with his later testimony that Dubois did not make a similar statement to him at any previous time It is likewise noted that his testimony as to Dubois' remarks about a contract were not corroborated by other employees at the picket tent at the time, and that he said Dubois pulled over and stopped his car, which would be difficult at a shift change with a narrow road and moving traffic Based on the foregoing, I find that Dubois did not state to Smith about a week or 10 days after the strike started while in his car proceeding out beyond the plant gate that there wasn't ever going to be a contract. Employee J C Bradshaw testified that in late July he placed a call to Dubois from his home to Dubois' home after receiving a message that Dubois wanted him to call. He testified that Dubois tried to persuade him to return to work, stating he had a large family to support and the Company had a good job there for him, and when Bradshaw queried him about getting a contract Dubois answered that Southwestern Pipe was part of a big organization and if Southwestern Pipe ceased business, Bradshaw would have a place in it; that the union attempt to get a contract with the Company was like his son telling him he wanted a swimming pool in the backyard, for which the boy would just get a spanking and an order to get in the house Bradshaw further testified that'Dubois reminded him of how some of the machines of the plant were packaged up in grease when Bradshaw was first employed and said that was the way they would be again 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD before the Company ever signed a contract with the Union Dubois confirmed asking Bradshaw to call him and the conversation, and stated he wanted to talk to Bradshaw because he was interested in his personal welfare (though conceding under cross that he was also motivated by the Company's need for experienced mill operators at the plant). He corroborated Bradshaw's testimony that he solicited him to return to work and warned him he could have a hard time securing employment if he did not return and that he referred to the Company being part of a large organization and capable of taking care of those who supported it Dubois denied that he made any reference to the Union's inability to get a contract or stated the Company would cease business before it would enter into one Bradshaw's version is consistent with earlier statements made by Dubois, and Bradshaw impressed me as an honest, forthright witness. His testimony is credited I find that in the latter part of March Dubois interfered with, restrained, and coerced Bradshaw in the exercise of his Section 7 rights of the Act by soliciting him to return to work and threatening him with plant closure before the Company would sign a contract with the Union, further finding that such threat was not privileged free speech under Section 8(c) of the Act I further find that the Company is responsible therefor for the reasons cited in Section II, H, and J, above R. The August Negotiations The last negotiations meeting before the July 12 strike began took place on May 19. The parties next met on August 11. Dixie announced at the outset that his main purpose was to determine what job openings there were and to determine if the strike could be settled Brown asked what had caused the strike. Dixie characterized the Gray discharge, the shift change, the Company's lack of good-faith bargaining and Brown's discharge letter of July 13 as unfair labor practices causing the strike and stated he wanted the men returned to work and a good-faith attempt to reach a contract settlement. Brown advised Dixie that the Company was recruiting permanent replacements for the strikers and that he would advise Dixie later what jobs were still available by letter. Dixie did not wish to proceed further, but Brown insisted on a further discussion of contract differences Dixie repeated his objections to the legality of the racial discrimination provisions found unlawful heretofore and told the Company the Union probably would accept the Company's position on the balance of the issues to reach a contract settlement, i.e., the Union was ready to capitulate if this one matter could be resolved. Brown asked how Dixie would cure the illegality and Dixie suggested deleting the objectionable language The meeting closed with agreement by Dixie to submit a list of 10 names from which the Company was to pick the discrimination consultant S The September 9 and Subsequent Reinstatement Offers On September 9 Union Representative C. T. Ray withdrew the pickets from the plant and accompanied approximately 80 strikers onto the plant premises. He had previously (September 7) written a letter to Whitaker stating that the Union on behalf of the strikers "pursuant to specific authorization from them in this regard herewith makes an unqualified and unconditional offer on behalf of each and every striking employee to return to work immediately or as soon as employment is available Accordingly, this letter will serve to notify you that each and every one of the striking employees is making an unqualified and unconditional application to return to work for your Company and that each and every one of them requests that his application be considered as a continuing offer and application to return to work whenever employment is available " The Union went on to set out its position that the strike was an unfair labor practice protest and that the strikers were entitled to reinstatement, regardless of replacements, but carefully pointed out that the offer to return to work was unconditional and unqualified by this statement of the union position, nor a waiver of the Union's right to pursue legal means of redress through this case. Whitaker had not received Ray's letter prior to the time Ray and the 80 strikers presented themselves, but was informed of their intention to return before their arrival. He distributed two forms to the returnees to fill out and return to him and announced there were not any job openings (on August 22 in support of his petition for an election, Brown stated that the Company had a full work force of 29 nonstrikers, 11 strikers who had abandoned the strike and 123 permanent replacements for the remaining 116 strikers, plus 7 additional employees), that the replacements who had been hired would not be discharged and that as vacancies occurred through normal plant turnover, the strikers' applications would be given consideration The strikers were offered employment at construction projects operated by Brown & Root with the opportunity to return to the Company as vacancies occurred in their former jobs. From time to time thereafter, the Company offered jobs to small number of strikers both at the Company and at Brown & Root, and from time to time some of the strikers were returned to their former jobs On the basis of the foregoing, I find that the strikers made an unconditional offer to return to work on September 9, that the Company refused to reemploy them in their former or substantially equivalent fobs," and that the Company subsequently did offer individual and small numbers of the strikers reemployment at their former jobs. T. Prolongation of the Strike I find that the Company's poststrike actions of discharging the strikers, threatening employees with plant closure rather than execution of a union contract, continued adherence to the unlawful aspects of its proposals noted heretofore and failure or refusal to reemploy the strikers upon their unconditional application therefor on September 9 and offer of individual and sporadic reemployment thereafter as a reasonable consequence thereof caused the prolongation of the strike. U The November Negotiations The only other poststrike negotiation meetings between the parties beside the August 11 meeting took place on November 17 and 23 At the November 17 meeting, the Company selected Dr J B. Jones, Dean of Students at Texas Southern "I find that offers of construction employment with Brown & Root Company are not offers of equivalent employment , since such jobs, for the most part laborer jobs , entail different duties, require outside work under oftentimes more unpleasant conditions than at the Company, require travel with consequent transportation difficulties, etc SOUTHWESTERN PIPE, INC. University, as the consultant on discrimination, from the list of 10 submitted by Dixie per agreement on August 1 l The Union again sought to secure the reinstatement of the strikers and repeated its position that it was an unfair labor practice strike The Company adhered to its position that the strike was economic and that it would reemploy strikers as and when vacancies occurred in the strikers' former jobs. The Union reiterated its position concerning the illegality of the Company's nondiscrimination proposal; the Company proposed that Dr Jones be brought into the negotiation of the language of the discrimination proposal The Union stated it was its understanding of the company proposal that Jones would come in to assist in adjusting cases of alleged discrimination after the contract was executed, not to assist in the negotiation of a contract. Finally, the Company on November 23 submitted a revised proposal on discrimination which the Union characterized as a major move to meet the objections of illegality raised by the Union (which indeed they were) and stated it wished to study them The revisions were as follows: 30 2.2 It is recognized that the employer follows an informal system of merit evaluation on the basis of which wages are determined within the range of wage rates established for the classification of employee. Disparity of wage rates for individual employees, within the range of wage rates for the employee's classification, pursuant to employer's merit program, shall not constitute discrimination as defined herein, notwithstanding the employer's merit evaluation is shown to be individually unfair, unless it be shown that the disparities are the result of an intention to discriminate because of race, color, religion, sex, national origin or unionism 30 2 4 It is recognized that the employer follows a system of classifying and compensating individuals on a basis of individual capability and value as an employee, taking into account versatility in the types of work they are capable of performing and the entire range of variables in human behavior and characteristics, and that except where the work is of a nature that can be satisfactorily performed by male or female employees the Company does not generally follow the principle that equal jobs (i.e , the same job, or work requiring equal skill, effort and responsibility) shall receive equal pay The fact that employees in different classifications and rates of pay are assigned to the performance of the same task shall not constitute discrimination as such term is defined herein, unless it be shown that the disparities are the result of an intention to discriminate because of race, color, religion, national origin or unionism. There were no further meetings between the parties prior to the hearing in this case. v. The Company Bargaining After the Strike I have entered findings that the Company's bad-faith bargaining, unilateral changes of working conditions, threats, striker discharges and refusal to reemploy the strikers in their former jobs upon their unconditional application therefor both caused and prolonged the strike of July 12, a question remains as to whether its conduct thereafter cured or mitigated the effect of these actions. On August 11, the Company continued to adhere to its unlawful proposals despite the Union's indication that if these could be rectified it was prepared to concede the 383 balance of the disputed contract issues and continued in the position expressed in its July 13 letter that it would only reemploy strikers whose jobs had not been taken by hired replacements. While in November the Company rectified the deficiencies in its unlawful nondiscrimination proposal, this came after the Union had withdrawn its pickets, after the Union on behalf of the strikers had unconditionally offered to return to work, and when the Company still continued in its policy of offering piecemeal reemployment to the strikers as a when vacancies occurred in their former employment On the basis of the foregoing, I find that the Company continued to bargain in bad faith after the strike and through the time period covered above. W Violation of the Act I find on the basis of the findings which appear in Section II, A, through V, above that the Company violated Section 8(a)(1), (3), and (5) of the Act The Company violated Section 8(a)(1) of the Act. 1. On or about February 1 l by Plant Manager Norman Whitaker's letter threatening to discharge any employees who subsequently participated in a strike (see Section II, D, above), 2 On or about March 15 by Plant and Production Superintendent Jon Dubois' threat to employee Frederick Flowers that the Company was not going to tolerate a Union in the plant (see Section II, H, above), 3 In May by Dubois' coercive interrogation of employee Benjamin about his union views and threats that the employees' earnings were detrimentally affected by employee support of the Union and its objectives (see Section II, J, above); 4 In May by Foreman Foman Tyler's threat to employee Odis Dolphus that the Company would lower the work schedule if the Union succeeded in securing a contract and would replace any employees who went on strike and give any good jobs vacated by strikers to nonstrikers (see Section II, J, above), 5. In May by Dubois' threat to Benjamin that the Company was not going to tolerate union representation or the institution of union standards at the plant and that it would cease operations before permitting either (see Section II, J, above); 6. In May by Foreman George Adams' threat to employee Floy Shepherd that the Union was never going to get a contract (see Section 11, J, above), 7 In July by Dubois' threats to employee J. C Bradshaw that the Union would never get a contract and that the Company would cease operations before it would sign a contract with the Union (see Section II, Q, above); The Company violated Section 8(a)(3) and (1) of the Act 1. On July 13 by Attorney Brown's letter discharging all company employees who participated in a strike commencing the previous day (see Section II, P, above), 2. On September 9 by refusing to reinstate strikers who made unconditional application to return to their fobs and thereafter by its piecemeal offers of such reinstatement,30 (see Section II, S, above), "Since I find that the strike was caused and prolonged by the company conduct set out in this section and preceding sections, it follows that the strikers were unfair labor practice strikers and I so find, unfair labor practice strikers are entitled to reinstatement upon unconditional application therefor, without regard to whether replacements have been 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Company violated Section 8(a)(5) and (1) of the Act. 1. By its April 14 proposal of and insistence through November 23 by Attorney Brown upon union acceptance of provisions within a supposed nondiscrimination clause which would preclude the Union from performance of its duty to fairly, equally and without discrimination represent the Company's employees and which would expose the Union to legal liabilities (see Section II, I, above), 2 By its June poll by its supervisory staff of its employees' desires with regard to fixed versus rotating shifts and its subsequent changes in shift starting times and to rotating shifts without prior notice to or consultation with the Union (see Section II, K, above), 3 By its failure and refusal to bargain in good faith with the Union concerning the wages, hours, and working conditions of its employees on and after early February (see Section II, A, through V, above). X. Disqualification From Reinstatement The Company alleges in its answer to the complaint that employees Mack Bowie, R. B Chreene, Ogilivia Gayfield, Harvey Harps, James Harris, Robert Hill, James Gray, Odis Lewis, and Frank Smith should be declared ineligible for reinstatement under any order issued in this case by reason of their misconduct during the course of the strike. Evidence was developed by the Company concerning the conduct during the strike of these nine strikers and James Miles, James Gray's brother, General Glover, J. C. Bradshaw, Floy Shepherd, Leroy Valley, Herman Goldsmith, and Bennie Jones. 1. The Leon Brown incidents During the period immediately after the strike commenced, the Company scheduled a two-shift operation of 12 hours per shift, 7 a.m. to 7 p m., and 7 p.m. to 7 a m On July 14, Leon Brown, a negro employee, left the plant in the auto of Douglas Phillips, a white employee, following the completion of their work on the first shift. There was a line of cars leaving the plant parking lot by the Bringhurst gate A number of witnesses sponsored by both the General Counsel and the Company agreed in their testimony that there were two pickets carrying signs at the gate and a maximum of 20 strikers scattered around the area outside the gate, most of them at or near a tent maintained for the picket captains and pickets (pickets were maintained at positions other than Bringhurst), and that cars were parking along both sides of the road leading out from the gate to the main highway. As Phillips' auto passed beyond the gate, it stopped abruptly to avoid collision with an auto driven by Odis Lewis in which Harvey Harps was a passenger, which had backed into the intersection from a side cutoff in order to move in the same direction in which Phillips was going. Phillips threw his car into reverse and collided with the car behind him Lewis and Harps both left the car in which they were; Lewis looked down at the rear of placed in their jobs and whether such replacement requires the dismissal of such replacements , Mastro Plastics Corporation v N L R B, 350 US 270 Since all such strikers have a right to immediate reinstatement upon application, it follows that attempted piecemeal reinstatement to individual or small numbers of strikers did not extinguish the Company's liability and continued violation of the Act , Robert S Abbott Publishing Co , 139 NLRB 1328, N L R B v Poultrymen 's Service Corp , 138 F 2d 204 (C A 3) his car, came up to Phillips' car window, bent down and looked in at him. Phillips had the window rolled up and the door locked. He did not hear Lewis say anything Harps walked back alongside the other side of Phillips' car but did not say anything either The two returned to their car and subsequently drove off In the interim, however, after Phillips had collided with the car behind him, he killed his engine, while his car was still standing, Frank Smith crossed the street in front of Phillips' car, cursed and threatened Leon Brown for working during the strike, and struck him a blow in the face (Brown's window was down). Phillips had his auto started about then and quickly swung around Lewis' car and headed for the highway. While he was under way, Brown took a pistol out of a bag between his legs, opened the door on his side and fired back toward Smith and others in the area, who scattered and dropped to the ground. No one was hit The evidence establishes that Robert Hill was one of the men carrying a picket sign at the gate when the Phillips car came through it, and that Chreene, Shepherd, and Gayfield were three of the persons in the area outside the gate The evidence establishes that J. C Bradshaw was in the area for part of the evening, but is conflicting as to whether he was there at the time the incident described above occurred Zi Later that evening, George Gayfield pulled up in a car outside Brown's house and asked Brown to come out, saying he wanted to talk to him, and mentioned the shooting incident Brown refused to come out Gayfield left. Brown testified that Gayfield did not make any threats to him. The next night Brown left the plant in the auto of Clarion Hightower. A car driven by General Glover with Frank Smith at his side followed the Hightower car. At a traffic stop, Glover's car pulled up to the left of the Hightower car. Smith told Hightower several times to stop hauling Brown and, receiving no answer, flicked a lit cigarette against the side of Hightower's head. Glover said nothing and testified he did not observe the cigarette incident. 2 The Lou Joffrion incident On or about July 17, Mack Bowie, James Harris, and Leroy Valley visited Lou Joffrion at his home. Leroy Valley directed the others to it, as he was the only one of the three who knew where Joffrion lived Bowie believed he was a distant relative of Joffrion , but neither were sure of it. Bowie and Harris related that the purpose of their visit was to convey word from C T Ray, the union representative in charge of the strike , that the Union understood Joffrion ' s problems and had no objection to his return to work at the plant (Joffrion had suffered serious burns which caused a partial loss of physical ability and required further surgery costing about $7,000, which the Company was to pay for, and the Company had kept him at work in a job whose duties he was still capable of performing , and it was obvious he would have difficulty securing other employment ) Valley did not testify Joffrion stated that the three expressed concern that he might be hurt if he worked at the plant , that many "I do not find it necessary to resolve the conflict in testimony regarding Bradshaw's presence at or near the gate during the time the Phillips' car was stopped on the basis of his ruling below that Bradshaw's reinstatement is not at issue before him and that in any event mere physical presence near the gate on July 14, even if established, is not sufficient ground upon which to base a disqualification finding SOUTHWESTERN PIPE, of the strikers were incensed about it, that he told them he couldn't get another job and that the Company had promised to pay for needed future surgery, and that they stated they would tell the boys this A day later, a molotov cocktail was thrown through Joffrion's front door, but failed to ignite. General Glover testified he heard Leroy Valley tell another employee (who was not called to testify) that he had thrown the device through Joffrion's front door A written statement taken by Company Attorney Brown prior to Valley's reinstatement contains a denial that he had done so. 3. The William Foley incident William Foley, a negro, continued to work when the strike occurred. Shortly after the strike began, Frank Smith and James Gray's brother and another man followed Foley's auto in a black Chevrolet when Foley left the plant after completing his shift, and did the same thing the next day After it was dark on the second night, a molotov cocktail was thrown at Foley's house. It did not do any damage. Foley testified that James Miles was in a car which came by shortly before the device was thrown, and that it was a red and white Chevrolet In his statement given to Company Attorney Brown, he stated that it was dark and he could not identify either man in the car that came by. It was established by official records that it was dark at the hour the incident occurred Foley later stated that he knew it was Miles because he heard him talking and recognized his voice 4. The Charlester Strong - Frank Moore incidents Charlester Strong and Frank Moore, both negroes, worked at the plant during the strike. They did not go through any of the regular gates in getting to and from work, but left the premises near a bridge and went up to a road where Strong's wife picked them up in Strong's car. On one occasion when they came up towards the road, they observed a group of men coming toward them, among whom they recognized Frank Smith, Floy Shepherd, and Charley Robertson. They ran and the men pursued them for a distance but ceased pursuit after a while. Moore also testified to a conversation with General Glover in which the latter asked him if he was going back to work and, on receiving a noncommittal reply, said he would tell the men if he did Moore further related an incident at a bar one evening in which he was accosted by Bennie Jones and Herman Goldsmith and Jones threatened him if he continued to work 5 Contentions of the parties The General Counsel points out that Leon Brown was not disciplined by the Company for firing his pistol toward the strikers and contends that a striker should not be penalized when a nonstriker who commits a more serious offense is not; the General Counsel also argues that the Company condoned whatever misconduct the nine strikers named in the company answer may have engaged in by the fact it assisted them to secure employment by Brown & Root Co. During the course of the hearing, the General Counsel repeatedly asked if the Company was contending that any strikers other than the nine to whose reinstatement the Company objected in its answer should also be denied reinstatement so that he would know if he INC. 385 needed to prepare and present rebuttal thereto but received the ambiguous reply that the Company had not determined whom it might add until it studied the matter further and the specific reply with regard to J C Bradshaw and Floy Shepherd that the Company was not contending that their presence (if established) at or near the gate at the time of the July 14 shooting incident barred their reinstatement The Company did not apprise the General Counsel and the Charging Party prior to the close of the hearing that it wished to make any additions to the nine strikers it named as disqualified for reinstatement in its answer nor did it seek to amend its answer to include any added names. In view of the failure of the Company to so apprise the General Counsel and Charging Party or to amend its answer, it is my ruling that the disqualification issue as to any employees other than the nine named in the Company's answer was neither raised nor fully litigated before him and, therefore, he shall not consider evidence as to other than the nine on this issue. 6 Mack Bowie The sole evidence relating to Mack Bowie concerns his remarks to Lou Joffrion I find that all Bowie did was to convey his personal concern over Joffrion's welfare and that he would seek to soothe any hostility aroused against Joffrion over his work at the plant and get the word around as to the reasons therefor I find this evidence insufficient to support a finding of Bowie's disqualification for reinstatement 7. R B. Chreene The sole evidence relating to Chreene is his physical presence near the plant gate at the time of the July 14 shooting incident I find this evidence insufficient to support a finding of disqualification for reinstatement. 8. Ogilivia Gayfield The only evidence re Gayfield establishes Gayfield's physical presence near the plant gate on July 14 and that he sought to talk to Leon Brown at his home later that evening. I find this evidence insufficient to support a finding of disqualification for reinstatement 9 Harvey Harps The only evidence about Harps was the establishment of his presence as a passenger in a car whose back out into the lane outside the Bringhurst gate on July 14 caused Phillips' car to stop. I find this evidence insufficient to support a finding of disqualification for reinstatement. 10. James Harris The sole evidence relating to James Harris establishes that he accompanied Mack Bowie to Lou Joffrion's house on July 17 and was present during at least part of the conversation. I find this evidence insufficient to support a finding of disqualification for reinstatement. 386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 11. Robert Hill The sole evidence relating to Robert Hill establishes his presence as a picket at the gate at the time the July 14 shooting incident occurred I find this evidence insufficient to support a finding of disqualification for reinstatement 12. James Gray Inasmuch as I denied the Charging Party's motion to amend the schedule attached to the complaint to add James Gray's name to it, it is unnecessary to consider the disqualification issue with regard to him Were it to be given consideration, I would find that the only evidence relating to James Gray established his presence in the vicinity of the Bringhurst gate at the time of the July 14 shooting incident and that such evidence is insufficient to support a finding of disqualification for reinstatement. 13. Odis Lewis The evidence establishes that Odis Lewis was the driver of the car whose backup to turn in the lane leading toward the main road outside the Bringhurst gate caused the Phillips' car to stop and that Odis Lewis got out of his car, inspected its rear, walked back and looked in at Phillips and subsequently went back to his car and drove off I find that this evidence is insufficient to support a finding of disqualification for reinstatement. 14. Frank Smith The evidence establishes that Frank Smith committed two acts of violence, striking Leon Brown on July 14 and flicking a lighted cigarette against the head of Clarion Hightower on July 15, that he abused and threatened both Brown and Hightower; that he followed Foley's car away from the plant and chased Charlester Strong and Frank Moore when they left the plant premises through a back exit While the latter two incidents are not sufficient grounds to support a finding of disqualification from reinstatement, I find that the first two incidents described are and, on the basis thereof, further finds that Frank Smith is disqualified from reinstatement by virtue of his performance thereof There remains the contentions of the General Counsel and Charging Party that Smith should not be penalized because Leon Brown was not penalized by the Company for his subsequent conduct of firing his pistol back toward Smith and the strikers and because the Company was instrumental in securing employment for Smith with Brown & Root Co I find that both these contentions lack merit, while the Company did condone Leon Brown's conduct and only picked certain persons from among the number known to it to be present outside the Bringhurst gate on July 14 as strikers whose reinstatement was opposed (specifically excluding Shepherd and Bradshaw) and was instrumental in securing employment for Smith and the other nine named above at Brown & Root Co., neither act may be construed as a waiver in the absence of express statement thereof of its right to seek to bar Smith from reemployment for his commission of the serious acts of violence set out heretofore. CONCLUSIONS OF LAW I The Company is an employer engaged in commerce and the Union is a labor organization within the meaning of Section 2(2), (5), (6), and (7) of the Act 2. All production and maintenance employees, including truckdrivers, employed at the Company's Houston, Texas plant, but excluding all office clerical employees, guards, watchmen and supervisors, as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 of the Act. 3. On and at all times since the date of its certification by the Board - July 23, 1965 - the Union has been the exclusive collective-bargaining representative of the Company's employees in the unit just described 4 By its April 14, 1966, promulgation of, and subsequent insistence upon, contract provisions which would preclude the Union from performing its duty to fairly and equally and in a nondiscriminatory manner represent the Company's employees in the unit heretofore described and expose it to legal liabilities, its June 1966 poll of its employees' desires with regard to a proposed change in the shift assignment system at the plant and its subsequent change in the shift starting times of its employees and their shift assignments without prior notice to or consultation with the Union, its threats addressed to its employees on February I I to discharge any employees who engaged in a strike, on March 15 that it was not going to tolerate a union in the plant, in May that employee support of the Union and its objectives was detrimentally affecting the employees, in May that the employees' work schedules would be lowered by the Company if the Union secured a contract and that the Company would replace any strikers immediately and give any good jobs vacated by them to nonstrikers, in May that the Company was not going to tolerate union representation of its employees or the institution of union standards at the plant and would cease operations before permitting either, its May threat that the Union was never going to get a contract, and its July threat that the Union was never going to get a contract and the Company would cease operations before it would sign a contract with the Union, its July 13, 1966, discharge of employees who went on strike on July 12, 1966, its refusal on September 9, 1966, and thereafter to reinstate the strikers to their former jobs as a group on their unconditional application therefor and solicitation of individual strikers to return thereafter, and its failure and refusal generally to bargain collectively in good faith with the Union subsequent to February 3, 1966, over the wages, hours, and working conditions of its employees in the unit set out above, the Company caused and prolonged the strike of July 12, 1966, called in protest of its unfair labor practices and violated Section 8(a)(5), (3), and (1) of the Act 5 By his misconduct connected with the strike, Frank Smith is disqualified for reinstatement to employment with the Company under the terms of a Board Order 6 The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act THE REMEDY Having found that the Company has engaged in unfair labor practices, I recommend that an Order issue directing the Company to cease and desist therefrom and take affirmative action designed to effectuate the policies of the Act, including posting of appropriate notices, bargaining with the Union at its request, and restoration of its shift SOUTHWESTERN PIPE, INC. 387 hours and shift assignment system to that which existed prior to the June 1966 change Since I have also found that the strike was caused and prolonged by the Company's unfair labor practices and the strikers, therefore, were unfair labor practice strikers, he recommends that the Company be directed to offer the strikers who have not yet been returned to their former or substantially equivalent jobs with the Company reinstatement thereto, dismissing if necessary any replacements hired, and that the Company make them whole for any loss of pay they may have suffered or may suffer as a result of the Company's failure or refusal to reinstate them to such jobs with the Company from the date of their unconditional application therefor, September 9, 1966, to the date of their reinstatement Backpay shall be computed on a quarterly basis and shall include interest at 6 percent per annum, as provided in F W Woolworth Company, 90 NLRB 289 and Isis Plumbing & Heating Co., 138 NLRB 716 As to strikers who have been reinstated to their former or substantially equivalent jobs with the Company since the date of their unconditional application therefor, September 9, 1966, it shall be recommended that the Company be directed to make them whole for any loss of pay they may have suffered as a result of the Company's failure or refusal to reinstate them to such jobs on their September 9, 1966, unconditional application therefor from September 9, 1966, to the date of their reinstatement to their former or substantially equivalent job with the Company RECOMMENDED ORDER The Respondent, Southwestern Pipe, Inc., Houston, Texas, its officers, agents, successors, and assigns, shall 1. Cease and desist from- (a) Threatening its employees with discharge for participating in any strike. (b) Threatening its employees with permanent replacement and promotion of nonstrikers to jobs vacated by employees striking to remedy unfair labor practices committed by the Company (c) Threatening its employees with plant closure before dealing with the Union with regard to the wages, hours, and working conditions of its employees or accepting union standards in the plant or executing a contract with the Union (d) Threatening its employees with loss of earnings and reduced work schedules because of their support of the Union and its objectives. (e) Threatening its employees that the Union would never get a contract (f) Refusing to bargain collectively with United Steelworkers of America, AFL-CIO, as the exclusive representative of all its production and maintenance employees, including truckdrivers, employed at its Houston, Texas, plant, excluding office clerical employees, guards, watchmen and supervisors as defined in the Act, with regard to the wages, hours and working conditions of such employees (g) Changing the wages, hours, working conditions or other terms of employment of its employees in the unit set out above without notifying the United Steelworkers of America, AFL-CIO, and giving it an opportunity to bargain collectively about such proposed changes (h) Discouraging membership in or activities on behalf of United Steelworkers of America, AFL-CIO, by terminating or refusing to reinstate employees because of their union or strike activities (i) In any other manner interfering with, restraining, or coercing its employees in the exercise of their Section 7 rights under the Act or in any other manner discriminating in regard to their hire, tenure or any term or condition of employment 2. Take the following affirmative action which will effectuate the policies of the Act (a) Upon request, bargain collectively in good faith with United Steelworkers of America, AFL-CIO, as the exclusive representative of the employees in the unit heretofore described. (b) Restore shift hours and the shift assignment system in effect prior to the June 1966 change therein. (c) Offer immediate and full reinstatement to their former or substantially equivalent employment with the Company to all strikers named on attached "Appendix A" who have not heretofore been restored thereto and make each of them whole for any loss of earnings they may have suffered or suffer by the Company's September 9, 1966, refusal of their unconditional application therefor from September 9, 1966, to the date of their reinstatement in the manner set forth in the Remedy section of this Decision (d) Make whole all strikers named on attached "Appendix A" who have heretofore been restored to their former or substantially equivalent jobs with the Company for any loss of earnings they may have suffered by the Company's September 9, 1966, refusal of their unconditional application therefor from September 9, 1966, to the date of such reinstatement in the manner set forth in the Remedy section of this Decision. (e) Notify any of the strikers affected by (c) above if presently serving in the Armed Forces of the United States of their right to full reinstatement to their former or substantially equivalent jobs with the Company 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 (f) 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 and determine the amounts of backpay due (g) Post at its Houston, Texas, plant copies of the attached notice marked "Appendix B " ' Copies of the notice, on forms furnished by the Regional Director for Region 23, immediately on receipt thereof shall be signed by an authorized representative of the Company, posted by it and 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 insure that said notices are not altered, defaced, or covered by any other material. (h) Notify the Regional Director for Region 23, in writing, within 20 days from the Receipt of this Recommended Order, what steps it has taken to comply therewith '3 "In the event this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event 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 this Recommended Order is adopted by the Board, this 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX A John L Gladney Alvin Cole Lislie L Rosten Howard Flowers Elmo York Bobby Michaelson Ernest Boyd General Glover J C. Lewis Jessie Walker Sidney Benjamin Willie Adam Johnnie Ford Cleven Flower Matthew Dred Bobby G Warner Johnny Lucchese Benny Ray Jones Robert Lee Gray Frederick Flowers Herman Goldsmith Michael Harrington Bennie J Johnson Joseph Cretain Amos Brown Robert Hill Allen Placide J C Bradshaw Edward Johnson Melvin Yarbrough Thomas Allenn Albert Butler Joseph A Lemon Albert Brown Paul Wycliff Anderson Ross Willie J. Toston W H Johnson Arthur Reeder James Deshone Ernest Wacoff Thomas Sledge Clarence Myers Hylie Drain, Jr Odis Dolphus Sherman Ned Freddie Gipson Clarence Williams Joe Hailey James Hemphill Jeff Ford Henry Davis Robert Pendleton R B. Chreene Pearl L Moore Charles Ashley Jefferson Hall Edgar Robert Jones Willie Bullard Ben Hudson Leroy Myles Peter Mitchell Curtis L Jerry Bobby R Strange Elijah Owens Willie Evans James Miles Robert Clay Joshua Mitchell Harvey L Harps James Babineaux Elmo Clark Jerry Talley James Kinsey Arthur Williams Mose McDaniel Albert Griffin Perry Tyler Charles Buchannan Leroy King Milton Marsh Robert Tisby Spencer L Gunn Herbert McDaniels Charlie B Robinson James Harris George Gay Field Ellue Livingston Cornealus Williams Loyal Ewing Hosey Mosely Johnnie Blanchard J C Germany Randolph Stewart Joe Barns Odis Lewis Harry Greenwood O W Southerland Wilford Skinner Willie Ed Price Henry Myles Will Rogers Mack R Bowie Louis Bundage Erwin Donahoe Ruffin Pringle Mack Hanna, Jr Willis Darnell Floy Shepherd Lea Davis Sammy L Kraft Bill Johnson Jerry Skelton Ruben Moses Rose APPENDIX B 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- After a trial in which all sides had the chance to give evidence, the National Labor Relations Board found that we, Southwestern Pipe, Inc , violated the National Labor Relations Act and order us to post this notice telling our employees what we have been ordered to do, and not to do, in the future The Board has ordered us to tell you that we will not Threaten you with discharge for participating in any strike; Threaten you with permanent replacement and promotion of nonstrikers into your jobs if you strike in protest of our unfair labor practices, Threaten to close the plant before dealing with the United Steelworkers of America , AFL-CIO, the Union you chose to represent you in dealing with us about your wages , hours and working conditions or accepting union standards or signing a union contract, Threaten you with loss of earnings or reduced work schedules because you support the Union and the things it is trying to get into a contract with us, Make any changes in your wage rates, hours or working conditions without first notifying the Union of what we want to do and discussing it with the Union, Refuse to bargain in good faith with the Union about your wages , rates of pay, hours and working conditions, Fire you or refuse to reinstate you or discriminate against you because you support the Union and what it tries to do and get for you; In any other illegal way try to affect your right to decide for yourself whether to support or not to support the Union or to strike or not to strike The Board has ordered us to tell you that we will Bargain with the Union at its request about your wages, rates of pay , hours and working conditions; Restore the shift hours to what they were before we changed them in June of 1966; Restore you back to the fixed shifts you had before we put you on rotating shifts in June of 1966, Reinstate to your old job or one like it all of you named on the attached "Appendix A" who went on strike in July of 1966 because of our refusal to bargain with the Union in good faith and other unfair labor practices, Pay all of you who went on strike in July of 1966 for any wage losses you suffered between the date you offered to come back to work, September 9, 1966, and the date you are or were reinstated to your old job or one close to it, with 6 percent interest on the amount of backpay due to you. We will do the things the Board has ordered us to do and not do the things the Board has ordered us not to do, as set out above provision shall be modified to read "Notify the said Regional Director, in SOUTHWESTERN PIPE, writing, within 10 days from the date of this Order, what steps the INC. Respondent has taken to comply herewith " (Employer) SOUTHWESTERN PIPE, INC. 389 Dated By after discharge from the Armed Forces (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 Note Notify any of the employees referred to above if If employees have any question concerning this notice presently serving in the Armed Forces of the United or compliance with its provisions, they may communicate States of their right to full reinstatement upon application directly with the Board's Regional Office, 6617 Federal in accordance with the Selective Service Act and the Office Building, 515 Rusk Avenue, Houston, Texas 77002, Universal Military Training and Service Act, as amended, Telephone 228-4296