Local No. 423, Laborers

558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local 423, Laborers' International Union of North America, AFL-CIO, and Laborers' International Union of North America, AFL-CIO and Office & Professional Employees International Union, AFL-CIO, Local No. 333. Cases 9-CA-4525-1, 9-CA-4525-2, 9-CA-5083-1, and 9-CA-5083-2 November 13, 1969 DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND ZAGORIA On June 4, 1969, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding finding that Respondents had not engaged and were not engaging in certain unfair labor practices alleged in the complaint, and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party each filed exceptions to the Trial Examiner's Decision and supporting briefs. The Respondents then jointly filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions,' and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, and orders that the complaint herein be, and it hereby is, dismissed in its entirety. In circumstances differing from those presented herein, we might well decide that events characterized by the Trial Examiner as "other items or acts" were, as the General Counsel contended , indicative of the Respondents ' unlawful desire to frustrate agreement , thereby violating Sec 8(a)(5) of the Act Similarly, the validity of the Respondents' position that it had no legal obligation to offer a counter proposal on seniority could be viewed in a different perspective were it not for other conduct of the parties As pointed out by the Trial Examiner, it is not disputed that the issue which prevented agreement was seniority , and as to this issue there was full discussion For this reason , we agree with the Trial Examiner's conclusion that the General Counsel has not sustained the allegations of the complaint and that the Respondents' conduct at the bargaining table did not reveal that they were not conferring in good faith as required by Sec 8(d) of the Act TRIAL EXAMINER'S DECISION charges of unfair labor practices filed against the Laborers' International Union of North America, AFL-CIO, and its Local No. 423 (herein sometimes called Respondents or Employer) on November 16, 1967, in Cases 9-CA-4525-1, 2, by the Charging Party (herein called Union or Office Employees) the General Counsel of the National Labor Relations Board issued a consolidated complaint and notice of hearing on November 25, 1968, alleging that Respondents had engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the National Labor Relations Act, herein called the Act' On March 12, 1969, on charges filed by Office Employees on March 6, 1969, in Cases 9-CA-5083-1, 2, the General Counsel issued a complaint and notice of hearing alleging that Respondents had violated Section 8(a)(1) and (3) of the Act. Respondents filed answers admitting certain allegations of the complaints but denying the commission of any unfair labor practices All cases were consolidated for hearing, and a hearing was held before me in Columbus, Ohio, on March 25, 26, and 27, 1969, at which all parties were represented. Subsequent to the hearing, General Counsel and Respondents filed briefs which have been carefully considered Upon the entire record in the case' and from my observation of the witnesses, I make the following FINDINGS OF FACT 1. JURISDICTION OF THE BOARD Respondent Laborers' Local No 423, during the 12-month period prior to the issuance of the complaints, transmitted per capita dues and pension fund fees in excess of $25,000 from its headquarters in Columbus, Ohio, to Respondent International Laborers' at its headquarters in Washington, D.C. Respondent concedes and I find that it is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Respondent International Laborers', is a voluntary unincorporated association with offices and headquarters in Washington, D C During the 12-month period prior to the issuance of the complaints, Respondent International received per capita dues and pension fund fees in excess of $1 million at its Washington office from its various local unions located in various States of the United States Respondent International concedes, and I find that it is an employer engaged in commerce within the meaning of Sections 2(6) and (7) of the Act II. THE LABOR ORGANIZATION INVOLVED The Charging Party is a labor organization within the meaning of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A The Refusal To Bargain 1 Background and Issues The Charging Party, Office Workers, had contracts covering Respondent Laborers' Local No. 423's office employees for about 10 years when the last one expired in STATEMENT OF THE PROCEEDING GEORGE J BOTT, Trial Examiner Upon separate The General Counsel issued an amended complaint in these cases on February 24, 1969 'Respondent's motion to correct transcript is hereby granted 179 NLRB No. 100 LOCAL NO. 423, LABORERS 559 November 1967 The complaint in Cases 9-CA-4525-1 and 2, alleged that Respondents International and Local (International had the Local under a trusteeship at material times) refused to bargain with Office Workers in good faith thereby causing an unfair labor practice strike. Under General Counsel's theory of the case, the roots of the alleged refusal lie very deep and so it is essential for an understanding of the theory to return to 1966 and conditions in Laborers' Local No. 423 at that time The principal functionaries in a local union of the Laborers' are the secretary-treasurer and the business manager In 1966 Marshall Cobb was secretary-treasurer of the Laborers' Local in Columbus, Ohio, but he and the then business manager were deposed in a political upheaval which took place in the Local. There were only two office employees employed by the local just before the movement in which Cobb was ousted and these positions were filled by his daughters Geraldine and Marcella Apparently as part of the political power play, the group which succeeded Secretary-Treasurer Cobb immediately fired Geraldine and Marcella Cobb declaring that their jobs had been abolished ' This discharge action took place on April 22, 1966, and on May 5, 1966, Office Employees Local No. 333, the charging party in this case also, filed a grievance under its existing contract with Laborers' Local No 423 asserting a violation of the agreement in the discharge of the two employees The Employer Local Union of the Laborers' denied the grievance and 'the cases went to arbitration in early December 1966 In the meantime, however, a trusteeship over the affairs of the Local had been imposed by the Laborers' International on September 1, 1966, which was after the Cobbs had been fired and had filed their grievances, but before the cases were heard by the arbitrator Robert Powell, International vice president, had investigated the affairs of the Local and was appointed trustee on September 1, 1966. Powell testified that he found conditions in the Local bad and notorious during his investigation. He mentioned certain internal conditions and also noted that the United States Department of Labor had been conducting an investigation of the Local Powell became aware that there were grievances pending involving the discharge of Cobbs after he assumed the trusteeship He stated that it was his position and that of the International Laborers' that the Cobbs had been wrongfully discharged and that the discharges "were entangled with other internal" local problems He conceded that he as a trustee had the authority to withdraw the cases from arbitration and reinstate the employees, but he explained that after discussion with other higher officials it was decided that the arbitration should proceed but that the International Union should play a neutral role in it It was his opinion that those officials involved in the discharges would lose the arbitration case and this would be another weapon which could be used against them to effect their removal I he arbitration case proceeded and Local No. 423 of the Laborers' (still in trusteeship) was represented by the attorney who had handled much of the Local's affairs prior to trusteeship. It also appears that a Laborers' International Representative testified at the hearing, but Powell said that he testified only with respect to the condition in which he found the Local's records when he investigated its affairs with Powell On January 10, 1967, the arbitrator issued a decision in the case awarding reinstatement and backpay to Geraldine Cobb and Marcella Holland (Cobb) In brief, he found that the jobs of the grievants had not been abolished, that there was a valid and existing labor agreement, contrary to the Local Union's contention, and that the Employer was estopped to say that the grievants were discharged for cause The Cobbs were reinstated in April 1967. Attorney Leonard Sigall, who represented Local No 333 of the Employees on behalf of the grievants in the arbitration proceeding, testified without contradiction that an attorney who had been retained by the International Laborers' to handle the case involving the Cobbs after the award issued told him that the International Laborers' Union would not reinstate the Cobb sisters in accordance with the terms of the award He added that they were actually reinstated with backpay after he told Counsel for the International that he was prepared to file suit in federal court to enforce the award Powell, on the other hand, explained that reinstatement of the Cobbs was delayed because he wished to be present at the Local's office when it occurred because there had been opposition expressed to reinstatement by a certain faction in the Union. He said he wanted to assure that reinstatement would be peaceably effected It is General Counsel's theory that the bargaining with the Office Workers, described below, was entered into by Respondents with the fixed intention of precluding the parties from arriving at an agreement, especially on seniority, in order that Respondents could eventually "dispose of the services of the Cobb sisters and abort the results of the arbitration award " Respondent masked this reason, the theory goes, thereby precluding the Union from dealing adequately with the real issue in bargaining, namely, "the contemplated discharge and replacement of the Cobbs.", This course of conduct amounted to a refusal to bargain in good faith, it is contended, and this is the principal issue in the case A subsidiary issue is the failure to reinstate two of the strikers after what is alleged to have been an unfair labor practice strike In brief, Respondents claim that they met and bargained with the Office Workers on many occassions in good faith, but came to an impasse on the seniority issue particularly. 2 Collective bargaining before the strike With the Cobbs reinstated there were now four regular office employees in the bargaining unit and a supervisor., The Office Workers' Union's contract was due to expire in November 1967 and, after appropriate notice, bargaining for a new agreement commenced in September. During the negotiations which preceded a strike which took place on November 16, the Respondents were represented by Robert Powell, International vice-president and trustee of the Local, Mrs. Williams, the office manager, Lyle Rivers, then acting secretary-treasurer of the Local, appointed to his position by Powell, and John Scales, acting business manager 'Quotations from General Counsel's brief in which the theory is set out more extensively 'Geraldine Cobb is Miss Cobb, but Marcella is Mrs Holland At some 'Supervisor Williams, Mrs Ferguson, Miss Geraldine Cobb, Mrs points in the decision they will be referred to as the Cobbs Marcella Holland (Cobb), and Mrs Kathryn White 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD under the trusteeship.' Local 333 Office Workers was represented in bargaining before the strike by Mrs. Katherine Lewis, president of the local, accompanied usually by Miss Geraldine Cobb or another employee union member. The first negotiating session took place on September 1 l and nothing of major significance occurred Powell did make some comment to the effect that if he had been present at the arbitration hearing the Office Workers would not have been successful This remark was never developed, and Lewis said she tried to avoid that subject because it was controversial. There was also some discussion about a possible change in Geraldine Cobb's duties and some criticism of Marcella Holland's work. Powell also said that the Cobbs could not perform cashier work Lewis said she could not understand this because both were bonded Another meeting took place around September 15. By this time the Union had presented its proposal to the Employer containing a senioiity section which provided that the Employer would recognize the "principle of seniority for all employees, namely that the last person hired shall be the first to be laid off, providing the employees remaining can do the work that the employee laid off can do " The article of the proposed contract relating to seniority made other provisions to cover various contingencies, but the basic problem in the case is the parties' deadlock on the principle of seniority in layoffs or other reductions in staff, for it is here where the General Counsel and the Charging Party claim that the employer bargained in bad faith Although seniority is the key issue, there was no discussion of it on September 15 At a meeting held on or about October 24, 1967, the Employer presented a contract proposal which did not, however, contain any provisions of any kind relating to seniority as it is commonly understood in this field According to Lewis, Powell's replies to her many protests that his proposal failed to make provision for an employee's length of service were curt and laconic She said that Powell noted only that the Laborers' Union contracts had no seniority provisions and he did not intend to give one to the Office Workers It does appear from her testimony, however, that job classifications were discussed and agreed to, and that Powell and Rivers voiced some complaints about the quality of one employee's work. Lewis also recalled on cross-examination that Powell indicated that the Employer might face a layoff and did not want to be required to retain an employee with many years of service who was not able to perform as well or do as many tasks as a less senior employee. Lewis said that she assured Powell that under her proposal the Employer would have ample protection in such a situation because seniority would control only if the person retained was able to do the work required. Two more meetings between the parties took place before a final one on the day before the strike, but the dates of these earlier meetings were not clearly fixed by the witnesses It appears that both were in November and Powell was not present at either, but had delegated Lyle Rivers, acting secretary-treasurer of the Local, to 'No attempt is made here to make the fine distinction between the Local as a Local and the Local as a Local in trusteeship, or between Powell, International vice president and his appointees as International representatives and as trustees of the affairs of the Local They are all collectively called "Respondents " it should be noted that not each person named as a representative appeared at every bargaining session If he did not and it is important , it will be noted represent him Lewis recalled that Powell was not present at a meeting which Rivers attended around November 14 I find that two meetings occurred in November, besides the last session on November 15 before the strike. In any case, the substance of these meetings as it relates to the issues in this case is that Lewis again raised the seniority question and insisted on her proposal Again, according to her, Rivers, or Scales, acting business manager, told her that the Employer had already granted a good deal, that the employees should trust them, but they would not agree on seniority She said that the extent of the discussion on seniority on the Employer's part was just "No," or "The Laborers' don't have it, you won't get it." In both of these meetings she said she spent most of her time arguing for seniority and pointing out that she could not take less on this issue from the Laborers' Union than she had obtained from other employers in the area It also appears that other items in the proposals were discussed at these meetings and resolved Wages, for example, were agreed to on November 14 The last meeting before the strike, held on the night of November 15, did not last very long Lewis said that when Powell entered the meeting she immediately raised the seniority issue and asked him if he was "ready to discuss seniority and for the seniority provision in the contract" His answer was "No," she said, and his only stated reason was that the Laborers' had no such provision in their agreements. She said she also asked him if he meant that he was "not going to negotiate on a seniority clause," and he answered "That's right " She qualified her description of Powell's reply by adding that such was the "effect" of it, and she also stated that "all we discussed that night was seniority to the very end " When it appeared to Lewis that Powell would not agree on seniority, she reminded him that the contract was about to expire and added "no contract, no work " Powell asked if the employees would report for work the next day, but she merely repeated "No contract, no work " On the following morning all four employees in the unit struck and picketed, but Mrs Holland and Mrs Ferguson returned to work the next day Powell and Rivers testified about the bargaining sessions which they attended before the strike Rivers said he attended two meetings in November at which Powell was not present and claimed he had authority to sign a contract if agreement had been reached Seniority was discussed at these meetings and he told the Office Workers that they must present the Employer with a proposal it "could live with " The Charging Party's proposal remained unchanged at these meetings, and he said he did not feel he could rely on Mrs Lewis' oral assurances that there would be no problem in the event of a layoff because the Union's proposal included "ability" to do the work as a limitation on straight seniority. He also testified, and there is no question about this, that all other issues were resolved before the strike. During the last meeting which preceded the strike, Rivers said Powell told Lewis that "she had a product to sell but she hadn't sold him." This was after a discussion of the Charging Party's proposal which remained unchanged at the time When Lewis made her "no contract, no work" statement, Rivers recalled that Powell asked if it were possible to continue negotiations without a strike When Powell was preparing to go to Columbus for the first bargaining meeting he asked the International Union's associate counsel for suggestions and was reminded that the International Laborers' Union operated LOCAL NO. 423, LABORERS under an agreement with Local 2 of the Office & Professional Employees International Union, AFL-CIO, negotiated on their behalf and a number of other AFL-CIO unions by the AFL-CIO Powell obtained a copy and used it as a guide in drafting his proposals to the Charging Party in this case His proposal contains no seniority provision, although it was stipulated that the AFL-CIO agreement with Local 2 does According to Powell, seniority was the stumbling block in the negotiations with the Office Workers, and he explained that he was opposed to seniority , particularly in the situation in which he found the Local Laborers' Union He said that the Charging Party ' s proposal on seniority would , in his view , control all other relevant provisions of any agreement negotiated , and if there were a layoff in any area of the office , an individual with seniority might have to be retained regardless of ability He said he "frequently" expressed these views to the Charging Party during negotiations and asked that he be given some proposal which would assure "flexibility " The bargaining session on November 15 lasted only about 10 minutes , Powell said Lewis stated that the Office Workers wanted a seniority clause , and he told her to draft something that he could work with Lewis announced "no contract , no work," and said she was going to "embarrass" him with a strike Lewis then walked out with her committee Prior to this time there had been no change in the Office Workers ' seniority proposal 7 3 Negotiations after the strike The parties held another bargaining meeting on November 22, 1967 Lewis said that Powell presented written changes in his earlier proposals and informed the Union's committee that he was "going to tighten up that contract now, because we went on strike," and was going to punish the employees because of the bad publicity resulting from the strike Lewis said she questioned Powell on a statement in his changed proposal which read "Delete - fear re Seniority," but never got an explanation then or later about what he had in mind. The strike continued, and the parties arranged a meeting for December 22 Lewis advised Rivers that she would have an attorney present, and, as a result, Powell arranged to have Attorney Arthur Schiller, from the Washington office of the International, present. Most of the evidence about what happened at this meeting and a subsequent one on January 10, 1968, also attended by attorneys for each side, is in the testimony of the lawyers, but Lewis and Powell also had something to say about them According to Lewis, the January 10 meeting was very brief and practically all of the discussion centered around seniority She said that Schiller just kept telling her and her committee that everything they offered on seniority was "unacceptable." Apart from noting that there was a meeting on December 22, 1967, she did not mention its content. Leonard Sigall, who had represented Local 333 of the Office Workers in the arbitration case involving the 'Geraldine Cobb and Kathryn White, who struck and were denied reinstatement later, testified briefly about some of the negotiations which they attended In my opinion , they contribute little to this phase of the case White recalled Powell saying at the November 15 that he was not "buying" their "product" (Seniority ) Miss Cobb could not recall the meetings vividly, and her statement that Rivers and Scales had no authority to negotiate was credibly denied by Powell and Rivers 561 discharge of the Cobb sisters, was the chief negotiator for the Union on December 22. The principal topic discussed was seniority, and he made several proposals on it. He said that the Employer's general reaction to all proposals was manifold, in that the Employer expressed the position that, (1), it wanted no provision on seniority in the contract at all, (2), it would never agree to arbitrate a grievance concerning seniority and (3), it would not make a counterproposal in that area or tell the Union what kind of a seniority proposal it might accept The Employer did indicate, however, that it would listen to any proposal the Union wanted to make Sigall recalled that Schiller suggested that he use his inventive mind and come up with something that Powell might accept At one point, probably early in the negotiations, Sigall proposed that seniority be confined solely to job classifications of which there were only four Later he proposed that the parties agree only that the Employer recognized "the principle of seniority" and leave it at that These proposals were rejected, and when he asked the Employer for a counterproposal or a suggestion about what kind of a seniority arrangement it would consider, Schiller refused to make one and said there was no legal obligation to do so After a recess Sigall submitted two alternative proposals which he had drafted during the break The first proposal, as,it read after Schiller changed a word or two, was' "Employees shall be laid off and recalled in their classification in accordance with their seniority and their ability to do the work On questions of ability to do the work the Employer's judgment shall be final except that such judgment shall not be exercised arbitarily. A claimed violation of this section shall not be subject to the grievance procedure nor shall the employees' strike concern the claimed violation of this section " Sigall pointed out that there were no no-strike proposals in the Employer's or the Union's proposals up to this time and that the recently expired contract between the parties did not contain a no-strike clause He said that he made this proposal to meet the Employer's insistence that it would never arbitrate a seniority grievance. He explained to Schiller, however, that although the Union would not grieve about a claimed seniority violation or strike over it, it reserved the right to file a law suit for breach of contract if it felt that the provisions were violated When Schiller had considered Sigall's proposal as just set out, he told him that he wanted a no-strike clause in the agreement Since the Employer had taken the position that it would never submit a seniority grievance to arbitration, Sigall said he saw no reason at that stage to agree to a no-strike clause At that point Schiller stated that a "no strike clause was the quid prod quo for the grievance procedure," and Sigall responded that, in that case, the Union would have to strike or sue the Employer on every grievance, and if that was what the Employer wanted that was what it would get Because the Employer took the position that a no-strike clause was a necessary concomitant to a grievance procedure, Sigall said he withdrew part of the first proposal he had just made to the Employer and proposed as an alternative that the "Employer recognizes the principle of seniority but the parties agree that so long as only one employee is working in each classification, seniority shall not apply to layoffs and recalls except that an employee laid off from her job shall be recalled to her job before a new employee is hired " Schiller responded 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that these proposals would be considered, and arrangements were then made for a meeting on January 10, 1968 The meeting on January 10, 1968, was short. According to Sigall, he told Schiller that the Office Workers would agree to a broad no-strike clause if the Employer would either make a counterproposal regarding seniority or tell the Union generally what type of seniority it might accept He said Schiller replied that the Employer had no duty to make such a counterproposal. Sigall accused the Employer of bargaining in bad faith, and the meeting adjourned It was his view that seniority was the only issue blocking agreement and that a no-strike clause and a grievance procedure were unresolved only because seniority was unresolved Schiller's version of negotiations at the December 22 and January 10 meetings is not radically different from Sigall's, although there may be some differences in shading, emphasis and interpretation Schiller had not been present at earlier meetings but he had consulted with Powell who sought his advice after the strike 8 Powell told Schiller about the seniority issue in bargaining and explained what he thought he needed in that area Schiller prepared the written proposed modifications to the Employer's original proposal which Powell gave the Charging Party in the November negotiations The contract was reviewed on December 22 and practically everything appeared to be resolved except seniority and directly related issues Schiller asked that any language in the contract which might by implication indicate agreement on seniority be eliminated For example, reinstatement of improperly discharged employees "without loss of seniority" in a written proposal was changed to read "reinstatement without prejudice." He also proposed to withdraw the Employer's original proposal that there would be no reduction in benefits in the new contract on the theory that it could be implied from such a proposal that there had been agreement on seniority since it could be argued that seniority was a benefit This issue was resolved later, but passed for the moment to see what the parties could decide about seniority as such A few other matters, relatively minor, were discussed, and then the parties went directly to the issue on which they had been deadlocked - seniority. Schiller said that Sigall stated that the Union needed a seniority clause, and he explained why the Employer was against one. He pointed out that the Local was in trusteeship, and when it was lifted it would have to live with whatever was negotiated in these sessions He explained, he said, that the Employer needed freedom to move one employee from one job to another, for there were only four of them, and he emphasized that the Employer wanted to keep the best employee in a layoff and feared that seniority would restrict its choices There was also some discussion about whether there really was a seniority problem, since there was presently only one employee in each job classification, and, if there was no work in a classification, the employee occupying it would be laid off. This led Schiller to observe that, if there were more than one person in each job classification, problems could arise, and he commented that in such a case the Employer might consider the principle of seniority if seniority were not subject to the grievance procedure and arbitration Schiller recalled that Sigall asked at that point if the Employer would agree to accept the principle of seniority in layoffs and discharges if the employees could not strike over alleged violations This suggestion was not pursued at the time After further discussion of seniority and why the Employer didn't want it, a luncheon break occurred. Schiller said that during the recess Powell told him that he insisted on being protected against having to lay off the most capable person in a reduction in staff in order to keep the most senior He said it also occurred to him at lunch time that the Employer's proposal did not contain a no-strike clause, and he advised Powell that the Employer needed one. Schiller agreed that Sigall made a proposal that seniority should be recognized in layoffs only within classifications and that the Employer's judgment would be final unless arbitrary or capricious He countered this by suggesting that under such a clause an arbitrator might place the burden on the Employer of proving that its action was not arbitrary, and he also argued that the Union had ample protection against arbitrary discharge in the Employer's "just cause" for discharge provisions of its proposal Sigall disagreed on both counts Schiller also agreed that Sigall made two alternative proposals When the first one was read, he commented that on its face it looked like something the Employer could accept. It was then, however, that he proposed that there should be a no-strike clause in the contract, and when Sigall argued that there had been none in the expired agreement, he took the position that a no-strike clause was the "quid pro quo" for the grievance and arbitration procedure Sigall refused to agree, and Schiller continued to insist on a no-strike clause as "part and parcel" of a "grievance and arbitration procedure " As Schiller continued to maintain that there would be no grievance and arbitration provisions if there were no no-strike clause, Sigall made the second of his alternative proposals as set out above in his testimony According to Schiller, Sigall said if either of these proposals were accepted by the Employer, the parties would then have a complete agreement. There then occurred a discussion about arrangements for the next meeting, during which, according to Schiller, Sigall stated that "without a no-strike clause we will be settling disputes in the streets and that you will be hit with a strike this summer " Sigall then insisted that he wanted a response from Schiller to his alternative proposals by December 27 ' Schiller and Sigall lead the discussions in the January 10, 1968, meeting Schiller said that before the meeting he conferred with Powell and told him that he saw nothing basically wrong with Sigall's first alternative proposal and suggested that it might be acceptable, if it were made clear that it covered discharges as well as layoffs Powell asked Schiller if he was saying that if there was a person on the payroll who was more efficient than another but who had less years of service he could retain her in a reduction in force Schiller advised that he would not be "tied in" by the proposal and he could rely on ability as the controlling consideration, but he couldn't guarantee that grievances would not be filed and that seniority would not be a factor to be considered 'Powell had also asked Schiller for some ideas when the parties were preparing for bargaining in September 1967 and that was when Schiller referred Powell to the AFL-CIO contract with Local 2 of the Office Workers 'Schiller wrote a four-page, single-spaced letter to Sigall on December 26 in which he turned down Sigall's alternative proposals with reasons and suggested that the new agreement contain a grievance and arbitration procedure and a broad no-strike clause LOCAL NO. 423, LABORERS As the meeting opened Sigall addressed himself to Schiller's written reply to his proposals on seniority and insisted that the Employer come forward with a counter proposal Schiller said he asked Sigall if the Employer could consider that they had agreement on a no-strike clause, but that he never got an affirmative answer on that point. The meeting was short, he said Sigall accused the Employer of being adamant on seniority, and rose and stated, "I declare an impasse." The meeting adjourned Schiller twice stated that Sigall did not say that the Union would agree to a no-strike clause if the Employer would change its position by proposing a seniority clause or even indicating what kind of a seniority arrangement it might accept. He also said that he did not state at the January 10 meeting that the Employer would never agree to submit any dispute on seniority to either the grievance procedure or arbitration. He conceded that he had stated the Employer's position "almost in those terms," however, at the December 22 meeting." Powell testified that the Office Workers' Union made no changes in its seniority proposal until Sigall made his proposals in the December 22 meeting He said that at that point it appeared that an acceptable agreement might be worked out, but Sigall's remark about a possible summer strike injected strikes and a no-strike clause into the bargaining. He then demanded a no-strike clause because he did not want to have the Local Laborers' Union face a strike in its busy season on the basis of some grievance." Powell had very little detail to offer about either the December 22 or the January 10 meetings, his explanation being that, since the lawyers were handling the negotiations, he felt he could play a minor role. He recalled that Schiller suggested the necessity for a no-strike clause and also indicated that the Employer might be able to get along with Sigall's proposal on seniority. He also recalled that the January 10 meeting was brief and that only seniority and a no-strike clause had been mentioned when Sigall declared an "impasse." Powell agreed that seniority had been the stumbling block in the negotiations along with, as he put it, the "recent no-strike clause hangup " Although Powell indicated that after the attorneys took over bargaining he "was sort of sitting there taking up space," he stated that it was for the attorneys to "work out a settlement" of the dispute, if they could There were no more bargaining sessions until the Charging Party called off the strike and asked for reinstatement of Miss Cobb and Mrs. White on January 31, 1969. By this time the trusteeship had been dissolved, and Mrs Lewis met with Rivers who had now been elected secretary-treasurer of the Local Lewis opened the meeting by asking that the employees be reinstated, but Rivers replied that they should first settle the contract issues. The parties then reviewed all contract proposals and apparently had no problems with any of them until they reached seniority. When they did there was little -Whether Sigall's position on a no-strike clause was as clear as he said it was, or whether Schiller's version was the more precise , is the kind of conflict I think it unnecessary to decide , since the difference to me is caused by the natural emphasis negotiators put on their own interpretations of what is being said in bargaining It is a fact that the Employer made no counterproposals or indicated what type of a seniority proposal it might find palatable "Whether Sigall said there "would" or "could" be a strike, or just how he phrased it, is another example of how the parties recall what they say motivated them and does not have to be resolved , for there is no question that strikes were mentioned 563 discussion and no agreement There have been no meetings since Miss Geraldine Cobb and Mrs. White have not been reinstated, and it appears that their work is now being done by others. This subject will be treated in more detail in that section of this decision relating to the alleged discrimination against them in violation of Section 8(a)(3) of the Act 4 Evidence of admissions of Respondent's motives In support of the theory that Respondents pretended to bargain on seniority, but never really intended to reach an agreement in order that the Cobb sisters might be eliminated from its employ, certain evidence of oral admissions was introduced. Brief reference has already been made to Powell's cryptic statement at the opening of negotiations that, if he had been present at the arbitration hearing, the Union would not have won the case. The most damaging admission, however, is claimed to have been made by Powell away from the bargaining table before negotiations began, and it involves a serious credibility problem Mrs Kathryn White was hired by the Employer in September 1966 after the trusteeship was imposed, and she worked as Powell's secretary until the strike in November 1967. She participated in the strike as a member of the Office Workers' Union and has never been reinstated She testified that she and her daughter attended a conference in Portland, Oregon, in August 1967, at Powell's invitation, and was invited to dine with him According to her, during dinner the names of the Cobb sisters came up in the conversation and there was some discussion about the quality of their work During this discussion, or because of it, "Powell said he didn't intend to sign a contract, he didn't intend to have a union in there," she said Asked if Powell explained why he did not intend to sign an agreement or have a union, she first stated that he did not, but later in her direct examination she added that Powell said "that he wasn't going to have a union in there and he said he was going to get rid of the Cobb girls." This conversation occurred approximately a month before negotiations for a new agreement with the Office Workers began. Mrs White said there was some discussion about her work and her salary, but there was no discussion about the proposed contract itself or about "seniority proposals." Ida Harper is Mrs. White's daughter and is presently a first year student at Ohio State. She said she was present at dinner with her mother and Powell in 1967 and that she was 16 at the time Miss Harper testified that she had seen Powell previously at the Local's office, but she did not know Geraldine Cobb or Marcella Cobb (Holland) She testified that during dinner her mother and Powell discussed "the Office of Local 423 and . the negotiations coming up" and Powell said "that he had no intention of ever signing a contract because he didn't want the Cobb sisters in there." This is all that Harper could remember of the dinner conversation, although other things were discussed, she said Powell recalled having dinner with Mrs. White and her daughter during an Urban League conference held in Portland, Oregon, in late August 1967, but he denied that during the course of dinner conversation he stated that he did not intend to sign a contract with Local 333 or have a union He also denied that he said at that time that he intended to get rid of the Cobb girls. He added that at no time during the conference did he discuss with Mrs White or her daughter questions of seniority, current 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD collective-bargaining relations, job security, the Cobb sisters, his attitude toward the Union or anything of that nature I was not impressed by Mrs White's uncertain, halting recall of just what Powell said about signing a contract in connection with the Cobb girls, and I was equally unimpressed by Ida Harper's remarkable mental retrieval of one gold nugget from a conversation that happened almost 2 years before the hearing in this case and which she said she had not discussed with her mother since it took place Not only did Mrs. White need some leading in order to explain that getting rid of the "Cobb girls" was at the bottom of Powell's intention not to sign a contract, but she also, unlike her daughter, added that Powell also said that he did not intend "to have a union." On the other hand, Ida Harper placed some emphasis on Powell and her mother discussing "the Office of Local 423 and . the negotiations coming up" as an introduction to Powell's revealing comments about the Cobbs, but Mrs White seemed to say that the statement was precipitated by a discussion of the quality of the Cobb sisters' work and that there was no discussion about the terms of the new contract or about "seniority proposals." I credit Powell's denials, and I find that the conversations with him in Portland, Oregon, did not have the content that General Counsel's witnesses recalled that they had As bearing on Respondent's motives, Mrs. White also testified that on the first day of picketing, acting Business Manager Scales spoke to the pickets and told them there would not be another bargaining meeting for a month because Powell had gone to Florida Approximately a week later, International Representative Calloway, who had assisted Powell during the trusteeship, telephoned White at her home and asked her if she intended to return to work as two other office workers had done, Calloway argued that it did not make sense for her to be striking over seniority when she had the least seniority in the office. White also testified that Wilson, one of the Local's business representatives, spoke to her as he passed the picket line on his way into the office in December and told her that Powell would be in Columbus on the 15th of the month, but would leave on the seventeenth. He also said that the way the Employer was "beating" the Union was by not having bargaining meetings and that the employees should give up their "nonsense" of picketing because Powell was "too big" to beat White's testimony about what Scales, Calloway and Wilson said during the strike is uncontradicted, and I credit it B Analysis, Additional Findings and Conclusions Regarding the Refusal to Bargain General Counsel describes the circumstances in this case as "admittedly unusual" and his theory "unique" and concludes that disposition of the issues turns in large part on credibility issues I agree. He also states that the question of Respondents' motive is vital to explain that its course of conduct was designed to achieve a predetermined decision, and with this no one can quarrel. I also feel, however, that if the theory of this case is that Respondents entered into bargaining precommited to a course of conduct that was designed to eventually enable the Respondents to dispose of the Cobb sisters and hence abort the results of the arbritration award, there ought to be some substantial showing of hostility toward the Cobbs evident, and Respondents' course of conduct in bargaining ought to be more than equivocal and suspicious to support a finding that such a long range aim was to be reached in such a devious and complicated way Trustee Powell, International Vice President Powell, the Local in trusteeship, or its acting officers must first of all be shown to have some hostility to the Cobb sisters and, second, this hostility must relate, it seems to me, to some protected activity in which they engaged or be bottomed on some other invidious consideration Although the totality of an employer's conduct may establish improper motivation even if the acts which make up the total are relatively unimportant in themselves, here, in my opinion, the incidents which General Counsel argues reveal illegal motivation are not only relatively minor but so equivocal that they cannot establish that Respondents from the very beginning never intended to sign an agreement because they wanted to be free to dispose of the Cobb sisters because they had gotten themselves reinstated through arbitration under the old labor agreement General Counsel relies heavily on Powell's alleged admission to Mrs. White about what he had in mind for the Cobbs, but I have found that he did not state that he would never sign a contract in order to get rid of them I also find that statements by certain business agents or assistant business agents, or even International Representative Calloway, to pickets or strikers during the strike urging them to return to work or indicating that their cause was lost cannot supply a foundation for General Counsel's theory None of the remarks is alleged as an independent violation of the Act None of the remarks relates directly to seniority as a device to eliminate the Cobbs and none of the remarks mentions the Cobbs at all Business agents do not immediately supervise office workers, indeed the Local had an office manager supervisor It also appears that Respondent met regularly with the Union even if one business agent suggested that Respondents' tactic to beat the employees was to delay meetings There are no oral or verbal admissions of anti-Cobb animus or hostility to reveal Respondents' motive, and, in my opinion, the Respondents' conduct generally does not circumstantially establish the basic ingredients of the theory. Even if Local No 423 Laborers', before, during and after the trusteeship was the same legal entity, and even if Local No. 423 and the International Laborers' Union was a single employer while the negotiations and other relevant acts in this case were occurring,' 2 it would still be necessary to show that the principal functionaries or executives of Local No 423, or of any one who controlled its affairs during trusteeship and bargaining, were motivated by the same considerations as those agents of Local No. 423 who discharged the Cobbs before the trusteeship was imposed To rely on a continuing entity theory in the circumstances of this case is unrealistic, because it is motive which is crucial, and the motive to be sought, discovered and analysized is that of the persons who ran Local No. 423 Laborers' during the trusteeship and bargaining. International Vice President and Trustee Powell, acting Secretary-Treasurer Rivers and acting Business Manager Scales were the main functionaries of Local No 423 during that period, and Powell was the "There really isn't any question that Respondent Laborers ' International and Respondent Laborers' Local No 423 were a joint employer during the trusteeship, for Powell completely controlled the Local during that period However, trusteeship was removed on May 8, 1968 , and I find on the uncontradicted testimony that the Local controlled its own affairs after that LOCAL NO. 423, LABORERS 565 most important of them all on this record " Realistically, therefore, it must be established by a preponderance of the evidence that Powell's true motive in bargaining was to ultimately replace the Cobb sisters. I find that Respondents' course of conduct does not show that Respondents, Powell, or any other policy making official or executive of Respondents, were so motivated during collective-bargaining negotiations First of all, Powell testified that he had no hostility to the Cobb sisters, their father, Marshall Cobb, or their brother, who also is employed by the Local Laborers', and he gave certain reasons why it should appear that he is not The circumstances do not contradict or impeach his declarations and in some cases support them Marshall Cobb, who ran the Local for 20 years or more, was unseated in some sort of a political uprising, and his daughters, the only office employees employed by the Local, were fired by the persons who ousted him This was before trusteeship was imposed and before Powell had anything to do with the Local When Powell became trustee in September 1966, however, he fired Morrison and Jennings, the leaders in the anti-Cobb movement and the persons who fired the Cobb sisters If, as agreed by all at the hearing, the Cobbs had been improperly and unfairly fired by Morrison, and Powell fired Morrison, it would seem that Powell's attitude toward the wrongdoers and the victims was a least presumptively correct I find in these circumstances powerful evidence that it was.' As indicated, other circumstances, singly or together, are not clear enough to reveal that Powell's aim was ultimate elimination of the Cobbs When the International Laborers' placed the Local in trusteeship the Cobbs had already been discharged and had filed grievances, but arbitration had not been scheduled. When Powell became trustee he learned that the cases were going to arbitration, and he admitted that he had authority to call off the hearing and reinstate the employees He did not, and he also permitted Calloway, an International Laborers' representative, as well as lesser Local agents, to testify at the arbitration In addition, after the arbitrator made his award, Powell delayed reinstating the Cobbs for 3 months, and retained an attorney to represent the Local Laborers' in the cases. General Counsel argues that these circumstances impeach Powell's stated reasons for acting as he did and demonstrate that he really was trying to get rid of the Cobbs I find that the circumstances described in connection with the Respondents' actions regarding arbitration and the arbitrator's award are not so odd or unreasonable as to overcome Powell's explanation for them Powell's explanation that the discharges were part of the political turmoil which he had inherited and that those who had been instrumental in the discharges should have to defend them in arbitration is not unreasonable, and neither is his conduct of permitting Calloway to testify to factual matters involving records only Powell said that the International, with legal advice, had decided that it should remain "neutral" in the arbitration cases, and I see nothing in his acts of permitting the cases to go ahead or letting certain persons testify at the hearing to convert this "Unless someone in the International was guiding Powell 's hand, but there is not even a suggestion in this record that such was the case "I think it is relatively unimportant that Powell kept certain business agents on probationary appointments when he took over Business agents function primarily in the field, and the Local had to continue functioning Even if this indicated that Powell was not politically against all Local functionaries , it would not fairly indicate that they had anything to do with the Cobbs' discharge or that he endorsed or approved their actions asserted "neutrality" into something else Similarly, with respect to the delay in reinstatement, there was delay, but there was also reinstatement and full backpay In addition, the Cobbs worked without incident until the strike, and one of them, Mrs Holland, who returned to work during the strike, is still employed Hiring an attorney to settle important litigation cannot overcome these facts or Powell's uncontradicted testimony that he wanted to be present in Columbus, Ohio, when the Cobbs were actually reinstated to prevent any unpleasant incidents because he had information that a certain faction in the Local resented the Cobbs and might resist their reinstatement There remains for consideration Respondents' conduct at the bargaining table for whatever light it may throw on Respondents' state of mind. Preliminarily, two things must be kept in mind in this analysis In effect, all parties agree that the issue that kept the parties from reaching agreement was seniority, and it also seems to be conceded that, apart from seniority, Respondents conduct was unassailable and that all economic issues were "resolved between the parties so exemplary was the nature of bargaining."15 But this agreement on all other issues after "give-and-take, offer and acceptance or refection, modification to proposals, counterproposals" having "all the earmarks of true good faith bargaining."'° was really the conduct of a sophisticated bargainer that did not want its closed mind and predetermination on the seniority issue to appear obvious, according to General Counsel. Again we are on a search for a concealed motive based on conduct "exemplary" on its face in many respects, but because of these concessions, which are well supported by the record, it will be unnecessary to review in any detail anything other than the discussions regarding the seniority issue during bargaining There were six bargaining sessions before the strike on November 16 Respondent would agree to no form of seniority during these meetings or make any counterproposals on it, and if it just sat still during the sessions while seniority was being proposed, or merely said "no," because the Laborers' International had no seniority clauses in its agreements, as one witness testified, then this might indicate bad faith, but that is not what happened or all that happened before the strike. There was more discussion of seniority, as I have suggested earlier, than Lewis, president of the Charging Party, first recalled Powell, for example told Lewis that in the event of a cutback he did not want to have to keep the most senior employee who could not do secretarial work, and she said she explained to him at length why she wanted such a clause and why it would not tie the employer's hands. Job classifications, temporary help and fluctuations in employment were discussed in connection with seniority, and Rivers, who substituted for Powell at two meetings, talked about seniority and its relation to an increased staff caused by an increase in membership, and he said that he was unwilling to take Mrs. Lewis' oral assurances that her proposal would not handicap the Employer in running the office efficiently The word "flexibility" was used during the discussions, meaning, of course, Employer freedom to select or transfer employees without regard to years of service, and Mrs. Lewis recalled that Powell once told her that she had a product to sell but she had not sold it. This illustrates that the parties knew what they were talking about, and since they all were experienced and even sophisticated, as much "G C br '"Ibid 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discussion of this topic as might have been indicated in another environment might not have been needed it also must not be lost sight of in evaluating the Employer's alleged taciturnity, that Lewis, too, was somewhat unyielding The Charging Party made no change in its seniority proposal before the strike, and insisted, in effect, that seniority was a must because the Office Workers' committee had a "feeling" that the Employer was trying to get rid of Mrs Holland In addition, for what it is worth, the Employer did not break off bargaining. According to Powell's uncontradicted testimony, Lewis announced "no contract, no work" at the last meeting before the strike, and walked out with her committee after stating that she was going to "embarrass" Powell When the parties met after the strike there was additional discussion of the seniority issue on which they were deadlocked. At the meeting on or about November 22, Powell presented the Office Workers with revised proposals, some of which were drafted to protect the Employer's seniority position i' At the December 22 meeting, as set out earlier, the Employer took the position, according to Sigall's credited testimony, that it would agree to no proposal which would permit its judgment in selecting employees for layoff to be tested in arbitration involving a claimed violation of seniority in addition, "flexibility" was mentioned as a consideration by the Employer, and Sigall explained that in his view the Employer had ample flexibility under the Union's proposal Moreover, it appears that the Employer argued that the Union did not need seniority, considering the way the Employer was presently staffed, and contended that other clauses in its proposal would give the Union the protection it said it needed In sum and in short, I find that the Employer did not reject the Union's seniority proposals out of hand, but discussed them fully and stated reasons for its position on the issue Respondents' injection of a proposal that there be a broad no-strike clause in the agreement after Sigall made an offer on seniority, qualified by a clause that the Employer's judgment shall be final if not exercised arbitrarily, and including a proviso that claimed violations would not be subject to the grievance procedure nor would employees strike over claimed violations, is suspicious and looks at first glance like a ploy to confuse the issues and prevent agreement The parties had never had a no-strike clause in their contracts and Sigall's proposal on its face is as watered down as anything the Office Workers might have been expected to take Acceptance of this proposal would have meant agreement on an entire contract with some sort of a seniority policy as part of it Rejection of it completely by a Union-Employer would appear odd and might be embarrassing, but this is conjecture, of course On the other hand, Sigall agreed that after he made the offer just set out he also stated that the Charging Party reserved the right to file a law suit for breach of the contract if it thought it was violated, even though it would not resort to the grievance procedure He also agreed that at some point in the afternoon session he refused to agree to a broad no-strike clause since the Employer refused to "Powell' s "tightened" proposals , prepared with the aid of the International's attorney, mentioned by General Counsel as a factor indicating bad faith, neither add to nor subtract anything from Respondents' position on seniority The proposals show no evidence of a reduction in benefits already agreed to, and the elimination of the "no loss of benefits clause" was adequately explained as a precaution to prevent a claim of an implied agreement on seniority , although there was none, on the ground that previous seniority was a "benefit " This issue was also resolved later agree to arbitration of seniority disputes, and that he stated that if the no-strike clause were the quid pro quo for the grievance procedure, as Schiller stated, then "the Union would either have to strike or sue the Employer on every grievance " It was these remarks about law suits and strikes that bothered Powell, according to Powell and Schiller, and caused the Employer to insist throughout the December 22 and January 10, 1968, meetings on a broad no-strike provision The no-strike clause became a part of the seniority problem which had not been resolved Although I am convinced that solution of the seniority problem would have resolved the other, I am not prepared to say that Schiller's and Powell's explanation for their insistence on a no-strike clause even when considered in connection with their refusal to agree to any proposed seniority clause or make a counterproposal on seniority was so unreasonable that it clearly reveals that the Employer was concealing its real reasons for failing to agree on a meaningful seniority provision Other items or acts, clearly indicative of Respondents' desire to frustrate agreement either on seniority or the whole contract, or both, according to the General Counsel, are not such bright signals to the writer The Union and the Employer had successful bargaining for 10 years without a no-strike clause and with a seniority clause, and departure from these accepted policies shows bad faith, it is argued. But the Employer in that period had only a third of the membership it has now, only two employees, both daughters of the man who ran the Local, and no political turmoil on the horizon or in its past Because it then felt that it could live with what it had, does not mean that the Employer's position in changed circumstances is other than it says it is Similarly, the refusal of the Employer to tell the Union what kind of seniority it might agree to is made much of, but this is not like refusing to give a union even a vague idea of whether any kind of a wage increase is in the cards, for the truth may very well be that the Employer's chief negotiator does not believe in seniority, as he stated, and did not want a seniority clause which could possibly inhibit administration of the office, and, if this is so, this is far from proving that he was trying to get rid of the Cobbs and frustrate an entire agreement to that end, rather than just not wanting to agree that the principle of seniority may control or affect management decisions This may sound hard, but there is no case cited to me that holds that you have to agree on seniority or make a counterproposal on it, which, no matter how you look at it, would have been tantamount to making a concession on it.'s There may be more in this case than meets the eye The Cobb sisters were fired for political reasons and there was some dragging of feet by the new regime in putting them back to work When bargaining began, seniority became the main stumbling block, and the Cobbs had the most of it But on the other hand, General Counsel's theory leaves more questions unanswered than resolved A few have been mentioned and relied on in finding that equally valid inferences could be drawn from various sets of circumstances in the case The first was Powell's (the new administration's) reinstatement of the Cobbs with a disclaimer of any animosity towards them and the absence of any explanation for why he should be considered to be "Cf The New England Die Casting Company , 174 NLRB No 190, In 3 But see, Florida Machine & Foundry Company and Fleco Corporation, 174 NLRB No 170, fn 2 LOCAL NO. 423, LABORERS part of the same faction or of the same view as those who were involved in the Cobb cases And if Powell had something against the Cobbs, which is not apparent, what was it? Was it because they had engaged in concerted activity - gone to arbitration, for example - or was it something else9 Is it illegal for an employer to be against arbitration of seniority disputes, providing he bargains about it" The Employer in this case agreed on arbitration of discharges or any other dispute that might arise under the agreement, except perhaps disagreements hinging on seniority If Powell was for arbitration in most areas, but against it in the seniority section, how precisely would this have enabled him to sever the Cobbs permanently when he was willing to agree that discharges should be for "good cause" only and be subject to the grievance procedure and arbitration. There are other unanswered questions, like why Rivers and other newly elected officials of the Local Laborers' should be continuing to carry out the same illegal plan that Powell devised, but finally, if the Local No 423 administration that wrongfully discharged the Cobbs was placed under a trusteeship and Powell was made the trustee by the International, were the Local's functionaries and their affairs actually subject to him or was he their captive9 The logic of the General Counsel's theory is that he was the latter, for the theory presupposes no fracture in policy or administration in the affairs of the Local Laborers' Union from 1966 to date As stated at the beginning of this decision, the roots of the case lie deep At the end it may be added that they still lie deep and uncovered I find on the basis of the whole record and for the reasons given that General Counsel has not established by a preponderance of the evidence that Respondents, as the complaint alleged, entered into negotiations with a fixed position not to accept seniority and masked and misrepresented its true invidious reasons for its refusal to agree to any form of seniority Respondents, therefore did not violate Section 8(a)(5) of the Act, as alleged. C The Alleged Discrimination Against the Strikers All four employees in the unit struck on November 16, but Mrs Ferguson and Mrs Holland returned to work immediately, and Respondents continued to operate the office with them only and the office manager for a number of months As the construction season approached and the work load increased, additional employees were needed and Respondents hired Mrs Person and Mrs Barkey in May and August 1968, respectively, thereby restoring the unit to its original complement of four Geraldine Cobb and Kathryn White remained on strike during 1968, and the first request for their unconditional reinstatement appears to have been made by Lewis in a conversation with Rivers on January 24, 1969 On January 27, 1969, she confirmed this request in writing, and in a meeting with Rivers on January 31, 1969, she 567 reiterated it Miss Cobb and Mrs White have not been reinstated, but Rivers testified credibly that they would be reinstated when openings occurred and that Mrs Lewis would be the first person notified of vacancies. Miss Cobb and Mrs White have been replaced. Mrs Holland, Mrs Ferguson, Mrs Barkey and Mrs Penson are doing all the office work that was done by the strikers before the strike Not every employee presently employed is doing exactly the kind of work she did before the strike or the same tasks as the person replaced, but basically that is the case Penson does secretarial work for the business manager and other business representatives as required as well as clerical work in connection with the hiring hall. This is essentially what Miss Cobb had been doing before the strike." Mrs White, a striker, had been hired before the Cobb sisters were reinstated after the arbitration award to do some of their work In that sense, Penson does some of the work that White did before the strike, but it also appears that Mrs Holland, who returned to work during the strike, now does some of the tasks that White performed before the strike. Mrs Barkey performs the functions that Holland did before the strike Since the strike was not caused or prolonged by unfair labor practices, the strikers could be permanently replaced, as they were Respondents recognize that Mrs White and Miss Cobb, although permanently replaced, remain employees under the Act, and has taken the position that it will offer them employment if additional employees are needed or vacancies occur This is as much as the Act requires 20 By refusing reinstatement to Miss Cobb and Mrs. White in the circumstances, Respondents did not violate Section 8(a)(3) of the Act as alleged in the the complaint in Cases 9-CA-5083-1, 2. CONCLUSIONS OF LAW I Respondent are employers engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act 3. Respondents did not violate Section 8(a)(1), (3), and (5) of the Act as alleged,in the consolidated complaints. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the complaints be dismissed in their entirety "Dispatching itself is done by business agents presently, although apparently Miss Cobb also participated in that function at one time as well as doing the related clerical work S°N L R B v Fleetwood Trailer Co, 389 U S 75, The Laidlaw Corporation, 171 N L R B No 175, C H Guenther & Son, Inc. 174 NLRB No 174