Thompson Brothers Coal Co., Inc.

24 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD Thompson _ Brothers- Coal, Company, Inc., Thompson Coal 'Company, Inc., and Thompson and Phillips Clay Company, Inc., and United`Mine Workers of America. Case 6-CA-5104 July 9, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On February 11, 1971, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that such allegations be dismissed. Thereafter, Respondent filed exceptions to the Decision and a supporting brief, the General Counsel filed cross-exceptions and a supporting brief, and Respondent filed an answer- ing brief thereto. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, the cross-excep- tions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner subject to the modifications set forth below: 1. We find, in agreement with the Trial Examiner, that the Respondent violated Section 8(a)(1) of the Act by the following conduct: (a) Shortly before the strike began on or about July 6, 1970,1 Respondent's President Thompson told employee Lumadue that he knew the Union had scheduled a meeting for that evening in which a strike vote would be taken and asked Lumadue what he could do to prevent a strike, thereby creating the impression of surveillance.2 I The Trial Examiner erroneously found that the strike began on August 8, 1970. It is undisputed in the record that the strike began on or about July 6, 1970. 2 The Trial Examiner found that the Respondent also violated Section 8(a)(1) of the Act by announcing the cancellation of the employees' (b) ,On the day after, the strike began, President Thompson's brother, Burt, an admitted"supervisor, told employee Jenkins 'tliat'a 50-cent-per-hour raise previously granted them would beaken away when the employees returned to work. When Jenkins said that he would look for another job, Burt Thompson replied, "wave-got-that stopped too ..:.we've called everybody -and - there's no use in Igoing'^ahywhere around- here hunting for a job because you're not going to get it." Burt Thompson added that he knew who had voted to go out on strike. As the Trial Examiner found, these remarks constituted unlawful threats to reduce wages and blacklist employees and an additional implication to the employees that their union activities were under Respondent's surveil- lance. (c) In September 1970, President Thompson tele- phoned employee Fullerton, cursed him, and stated that "he was going to get" Fullerton and employee Lark because they rejected Respondent's- offer of work during the strike and that he was going to dynamite Union President Staples' home. (d) About October 6, 1970, Thompson went to Lark's home and castigated him for "not doing right" by him and threatened to have Staples and the local judge "put away." 2. We also agree with, and adopt, the Trial Examiner's finding that Respondent violated Section 8(a)(1) and (5) of the Act in bypassing the Union and dealing directly with employees on September 3, 1970. 3. The Trial Examiner found that the facts failed to establish that Respondent's conduct at the bargain- ing table constituted a refusal to bargain in violation of Section 8(a)(1) and (5) of the Act. We find merit in the General Counsel's exception to this finding. The record shows by way of background that the Union was certified on June 6, 1969. At one of the first meetings, the Union submitted a copy of its basic contract, the National Bituminous Coal Wage Agree- ment of 1968, together with the rates provided for in the agreement for various classifications of coal mining personnel. The admitted or undisputed testimony establishes that at this and subsequent meetings President Thompson stated that he was "not in shape financially to sign the agreement" and that he could not afford to sign it, although he had not read it. He also stated that he would give raises "whenever he saw fit." Thompson also told the union negotiators to go out and organize employees of other employers in the area and come back. hospitalization coverage when the strike began . However, the cancellation of the coverage was neither alleged in the complaint or the amended complaint nor fully litigated at the bearing . Accordingly, we shall dismiss this allegation on procedural grounds. 192 NLRB No. 5 THOMPSON BROTHERS COAL CO. 25 Thereafter, within the 10(b) period, additional meetings were held, with the same negative results. Thus, at a meeting in', February 1970, Respondent stated that- it would not negotiate or sign a contract and there was no sense in discussing rates` of pay or anything else:3 In-July, immediately before the strike, the Union offered to negotiate on the basis of prevailing construction industrycontracts in the area. Thompson'respon0d that he "didn't give a goddam for any union " Thompson admittedly added that if he signed a contract in the beginning, it would hurt, his social life, he would be made a "goat of" if business went down; and some people wouldlaugh at him. After the meeting on July 6, the employees, upon being, advised , by-- the Union of the course the negotiations had taken, went out on strike. The parties did not meet again` until September 24, when the Respondent made its first- proposal-a 50-cent-per- hour'wage increase. The Union rejected the proposal, but, to counter the Respondent's claim that the Union could not negotiate for rates less than those in the national agreement, again offered to negotiate on-the basis of wage rates and -fringe b6nefits in the construction industry in the area. The Respondent rejected -the offer: Meetings were held on September 25 and-29 with ,no` progress. Then, on October 13, the Respondent offered a 75-cent wage increase and on October' 28,stated that the offer was "final." There were no further' meetings even though the strike continued until the=time of the hearing herein. We find upon the facts set forth above and the entire record including the Respondent's otherunfair labor, practices found herein that the Respondent failed-at alll material times to bargain in good faith in violation of Section 8(a)(5) and that the strike was an unfair labor practice strike from the beginning. At the time of the strike, President Thompson had adamant- ly refused to engage in any meaningful bargaining over a-period of almost a year, during which period he stated flatly-he would not sign a contract; had found nothing whatever to agree to in the Union's proposals, if he -even read them; and had not made a single counterproposal. We cannot interpret his eventual offers of a wage increase after 15 months of sterile meetings and 10 weeks of a strike as indicative of a sincere desire, to compose his differences and reach agreement with the `Union if possible. We are not persuaded, as the Trial Examiner was, that the evidence, relied on by him establishes that the union 3 The Trial ' Examiner did not discredit testimony to the effect, concluding that in context Respondent's conduct was not an unlawful refusal to bargain "Notwithstanding how [it i might have been appraised in the absence of such intransigence by the Union . . . ." But even aside from these statements of refusal to negotiate or sign a contract, even the conceded events are sufficient to support the finding of an 8(a)(5) violation. 4 U. Roadhome Construction Corp., 170 NLRB No. 91, in which the negotiators- had, no authority to agree-to, wage rates less than those called for in its national, agreement 4 It is clear that the Union offered alternatively to bargain on the basis of area construction contracts while the Respondent made no proposal at all. We do not agree with the Trial Examiner that this was a meaningless alternative as,- although' some of the construction wages were higher that those in the Union's agree- ment, some of the benefits were lower, thus providing room for give-and-take bargaining. In any event, the Respondent's own inflexibility precluded it- from putting the Union's flexibility on any subject to the teSt.5 THE REMEDY We have found, in, agreement with the Trial Examiner, that Respondent engaged in certain con- duct violative of Section 8(a')(1) and (5) of `the Act, and, ` accordingly,' we adopt the remedial recommen- dation in that regard. However, as we have found that the Respondent has refused in good faith to bargain collectively with the Union as the exclusive represent- ative of the employees in the appropriate unit,-, we shalt order that Respondent bargain collectively, upon request, with the Union as the exclusive representative of the employees in the appropriate unit and, if an understanding is reached, embody such understanding-in a signed agreement. Further, as we have found, contrary to the Trial Examiner, that Respondent -did not violate the Act by canceling the employees' hospitalization coverage, we shall` delete Section 2(a) of the Trial Examiner's Recommended' Order. CONCLUSIONS OF LAW Upon the basis of the foregoing findings of fact and upon the record as a whole, we adopt the Trial Examiner's Conclusions of Law subject to the following modifications: Substitute the following for paragraph 7 of the. Trial Examiner's Conclusions of Law: 7. By refusing and continuing to date to refuse to bargain collectively with the Union as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in and is engaging- in the unfair. labor, practices within the meaning- of Section 8(a)(5) of the Act. Add the following as paragraph' 8 of the Trial Examiner's Conclusions of Law: union negotiators acknowledged their lack of authority to vary the terms of the area agreement presented to the employer. 5 N.L.R.B. v, Reed & Prince Manufacturing Company, 205 F.2d 131 (C.A. 1), cert. denied 346 U.S. 887; Servette, Inc., 133 NLRB 132; Kickert Brothers Ford, Inc., 129 NLRB 1316; Imperial Machine Corp., 121 NLRB 621. 26 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD 8. The strike-which began on July 6, 1970, was an unfair labor practice strike. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Thompson Brothers Coal Company, Inc., Thompson Coal Company, 'Inc., and Thompson and Phillips Clay 'Company, Inc., Clearfield County, Pennsylva- nia, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with the United Mine Workers of America as the exclusive representa- tive of the Respondent's employees in the unit described below, concerning rates of pay, wages'-, hours, of employment, and other conditions of employment: All production and maintenance employees of Thompson Brothers Coal Company, Inc., Thomp- son Coal Company, Inc., and Thompson and Phillips Clay Company, Inc., at its, strip mines in 'Clearfield County, Pennsylvania, including prop- essing and loading plant employees, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. (b) -Bypassing the Union and dealing directly with employees on matters subject to collective bargaining or in ,any , other manner refusing to bargain with` the Union. (c) Imposing or threatening physical or economic reprisals against employees for participating in union activity and makingreferences to employees that their union activities are under surveillance. (d) In any other manner i interfering with, restrain- ing, or coercing employees in the exercise of the right to self-organization, to form labor organizations, to join or assist the above-named or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in any other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or, to refrain from any or all such activities, except to the extent that such right may be affected by an agreement -requiring- membership, in a labor organiza- tion as a condition of employment, as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which we find will effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union, as the exclusive representative of its employees in the above-described unit, ,concern- in'g rates of pay, wages, hours of employment,, ,and other terms and conditions of, employment and, if an understanding is reached,-,embody such understand- ing in a signed agreement. ,(b) Post at its plants in Clearfield County, ,Pennsyl- vania, copies of the attached E notice marked "Appendix."6 Copies of said notice, on forms provided by the Regional Director for Region 6, after being duly signed by Respondent's representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive: days thereafter, in` conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent,to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify, the Regional Director for, Region 6, in writing, within 20 - days from the date of ;this Order, what steps the Respondent has taken, to comply herewith. - IT IS FURTHER ORDERED that the=complaint be, and it hereby is,.dismissed insofar as it alleges violations of the Act not, found herein. CHAIRMAN MILLER, dissenting in part: I am in substantial, agreement, with„ the panel majority? except for its finding that^the Respondent failed to bargain in good faith. I agree with the Trial Examiner-that the -evidence establishes,that.the union negotiators had no authority to agree. to. -wage rates less than those called. for in its,national agreement. The alternate proposal referred to by the, majority was, in my, view, simply a maneuver designed to reinforce the Union's insistence on its own-national agreement and could hardly be regarded as a realistic alternative, since prevailing construction rates in the area were substantially higher than,, those in the Union's national agreement. The evidence, makes it plain that the Union assumed a take-it-or-leave-it attitude throughout. This, as the Trial Examiner found, constituted a refusal to bargain in good faith, precluding a test of the Respondent Employer's good faith.8 I would therefore affirm the Trial Examiners dismissal of this allegation of the complaint. e In the event that this is-enforced by it Judgment'of a United states Court of Appeals, the ' words`in the notice reading "POSTED BYrORDER OF THE NATIONAL LABOR RELATIONS BOARD-,shall be,changed to read "POSTED PURSUANT TO A JUDGMENT OF THE UNITED STATES COURT OF APPEALS ENFORCING AN ORDER OF THE NATIONAL LABOR RELATIONS BOAR!)." 7 I would adopt pro forma the Trial Examiner's finding, that President Thompson unlawfully conveyed the impression of surveillance ,by his remarks to employee Lumadue shortly before the strike, as, no exceptions v+erg filed thereto. , , , 8 Roadhome Construction, Corp., ,170 NLRB No. 91. THOMPSON BROTHERS COAL CO. 27 ' APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to recognize or bargain collectively with, the United Mine Workers of America as the exclusive representative of our employees in the unit described below, concerning rates of pay, wages, hours of employment, and other, conditions-of-employment: All production and maintenance employees of Thompson Brothers Coal Company, Inc., Thomipson'Coal'Company, Inc., and Thomp- son and Phillips 'Clay Company, Inc., at its strip'mines in Clearfield County, Pennsylva- nia, including processing and loading plant employees, but excluding all office clerical employees, guards, professional employees and supervisors as defined in the Act. WE WILL Not, bypass said Union and attempt to deal directly with the employees on matters subject` to collective bargaining or in any other manner refusing, to bargain -with said Union. WE WILL NOT impose or threaten physical or economic reprisals against employees for partici- pating in union activity nor will we make infer- ences to employees =that their union activities are under surveillance. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of rights to , self-organization, to form labor organizations,. "to join or assist the above-named Union or any other labor organization, to bargain collectively ,through representatives of their own choosing, and = to engage in any other concerted activities for the purpose,of collective bargaining or other, mutual aid or, protection, or to refrain from any or, all s-such activities, except to the extent that such right may be'-affected by an agreement requring membership in a, labor organization as a condition of employment, as authorized in'Section 8(a)(3) of the Act. THOMPSON BROTHERS COAL COMPANY, INC., THOMPSON COAL COMPANY, INC., AND THOMPSON AND PHILLIPS CLAY COMPANY, INC. (Employer) Dated By (Representative) (Title) This is an official notice and-must not be defaced by anyone. 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. Any questions concerning this notice or compliance with its provisions may be directed to the Board's Office, 1536 Federal, Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, Telephone 412-644- 2977. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Trial Examiner: This proceeding, brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136, hereinwcalled the Act), was heard at Clearfield,' Pennsylvania, on December 8 and 9, 1970, pursuant to due` notice with all parties represented by counsel. Thecomplaint, issued September 30, 1970, by the Acting Regional Director for Region 6, Pittsburgh, Pennsylvania, on behalf of the, General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board -(based on a charge. filed July 14, 1970, and served on July 15, 1970) alleged, that Respondent had engaged in unfair labor practices pro- scribed by Section 8(axl) and (5) of -the Act. The substance of the allegations was that Respondent had interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7:of the Act by various specified conduct and had refused to bargain with the Union as the representative of a majority of Respondent's production and maintenance employees in an appropriate unit. The complaint also alleged that a strike by Respondent's employees that started on August 8, 1970, was "caused and prolonged by Respondents unfair labor practices. In its duly filed answer Respondent denied any violation of the Act, Upon the entire record and from my observation of the, witnesses I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is comprised of, three Pennsylvania corpora- tions, which are affiliated business enterprises with common ownership, control, and --labor policy- which constitute a single integrated business enterprise . Respon- dent, whose principal office is located in Phillipsburg,- Pennsylvania, is engaged in the mining ,, processing, : and nonretail sale of eoal,at its mine `site in Clearfield County, Pennsylvania. During the 12-month -period immediately preceding the issuance of the complaint each of said corporations individually and/or collectively- sold goods valued in excess of $50,000-from inside the Commonwealth of Pennsylvania to- points directly outside the Common- wealth of Pennsylvania. 'I find that Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 28', DECISIONS OF NATIONAL LABOR RELATIONS BOARD if. THE ,,LABOR. ORGANIZATION, United Mine Workers of America is a labor organization within the meaning_of,Section 2(5) ,of the Act. III. THE UNFAIR LABOR PRACTICES On June 6, 1969, the Union was certified-as the collective- bargaining agent of all of Respondent's production and maintenance employees.' A'couple, of weeks thereafter the first meeting between the Union and the Company took place. Then followed some 10 or so meetings continuing well into 1970. Nothing was agreed to in any of these meetings other than that the Union indicated initially that it would not object to interim, wage 'increases by the Respondent. There followed a 30-cent increase and a subsequent-50-centrincrease. The Union admits approval of the 30-cent increase but maintains (contrary to Respon- dent) that,the 50=cent increase was not agreed to"and thatit constituted a unilateral actionly ' Respondent in violation of Section - 8(ax5) ` of" the Act. On August 8, ' 1970, the employees i went ,out on st> ike and ° the `strike was still in progress at the time this case was heard. The Union `would have' 'it "-by ° `its 'testimony that Respondent flatly refused to,discuss any of the substantive terms of a' conntract and took the position'thatit simply was not"'going to ^ enter into a contract with the United Mine Workers-, period. Respondent's position, is that the Union precluded any meaningful ' negotiations. on a 'contract because it had no authority' to ' agree to any rates less than its national agreement called for and-'that its position was that,anything less,thaa`thoserates including the 40'-cent- per-ton payment to the Union for pension benefits 'were not negotiable. In my opinion the evidence supports the Respondent's ition. Thus it appears'that in one of the first meetings the Union submitted a copy of -its` basic contract, the "National Bitiiminous"Coal' Wage Agreement of 1969; together with the rates provided for in the agreement, for various classifications of coal mining personnel. 'Thette is no'doubt ` that this matter of the wage rates and the 40-cent royalty became -a "major issue ' between the parties and , that Respondent resisted acceptance of the rates in'the national agreement and payment of, the 40-cent royalty. During the course of the meetings 'Respondent did, however, make offers to increase its wage rates but to levels lower than were contained in the national agreement. Apparentlyto counter Respondent's claim ithat-`the Union. could,,not negotiate for rates less than those, the national,agreement called for, the Union came'.up with an offer,of what 'it' claimed 'were' the prevailing construction rates in that area for classifications comparable to those in the national ,% agreement., These rates,- were substantially- higher than those contained in the national agreement. As to the, Union's wage offers Union President Owen V. Slagle,- Sr., testified that Respondent "(h)ad two choices: either to go into bardnose -bargaining ,on the rates prevailing in-(the) area, so far as, wages (were),, concerned andfringe-benefits; " t I All production and maintenance-employees of ,,Thompson Brothers Coal Company, Inc., „Thompson Coat Company, Inc., and Thompson and Phillips Clay Company, Inc., at its 'stop mines in Clearfield" County, Pennsylvania, including processing and loading plant employees, but or, if ... wished, . . . could -accept (the Union's) contract in total. It was his choice." Slagle's testimony then continued as follows: Q. But there has never been an agreement negotiat- ed that has not at least had the basic -National Bituminous Coal, Wage Agreement clauses in, it, has there?' A. You will have to define the clauses you're speaking of. If you're talking about the basic agreement, yes, that would be thebasic agreement that would be attached to it as it is in "all cases: Q. The- agreement itself =unchangeable=the agree- ment itself is unchangeable?? A. I can't answer what you're asking me, because I dof',t know what contextyou'rePutting it in.., Q. All right. I'll put it this way. In our negotiations with the United, Mine Workers with respect to these companies, the'employers;,an offer' wl+as made on the basis of wages that (were) lower than` the: iasic'wages called for in your contract. ' " A. That's right. Q. 'Was there anyrpossibility.of reaching„a` compro- mise between our offerand whatyou were'suggesting in wages? I , A., I don't think that can be answered here. , Q. Well, let me- ask you this: When we''stated September" 24, '1970,'-that we would- give a, 50-cent across-the-board increase, would -it have been possible at that time for you°or your union to have suggested'in response to that offer, "no, we will not accept it, but' we will agree that the men shall be paid a rate less ',thanthe basic rate of 4.7196 for drag, line-.operator," for instance? A. You mean could we have told you that? Q. Yes. A. Pick any price you want? Our answer, has to be no. We are not going to give you the right to'`say that we can't negotiate. Elsewhere=John Lease, the Union's; secretary-treasurer, testified that the reason, the union negotiators, proposed, to Respondent the construction =rates was because the Union "wanted to assure him that (they) Were in the position or willing to negotiate rates other than the basic rate(s) of the contract " Lease,further.testified that he told the: Respon- dent's negotiators that "all,the items in, the,contract were negotiable :gvith` exception of the 40 cents and that 40 cents is not a' negotiable-item. It's ndustrywida ogverithe country for the men to participate in that, it's got to be equal." Elsewhere in Lease's testimony the following colloquy occurred: ` Q. i My question, Sir, to you was: Are you in a position to negotiate-rates lesss than the basic contract? A. I would, be a fool to accept anything less than I knew thiscompany could afford to pay. Q. - Would you answer my question, please? A. Idid answer it. , excluding all office clerical employees, guards , professional employees and supervisors as defined in the Act constitutes an appropriate unit for the' purposes of collective bargaining within the meaning of Section 9 (b) of the Act. THOMPSON BROTHERS COAL CO. 29 - Q., Are you inya position to negotiate wage rates at anything less than those called for in the-basic contract? A. I'll answer you this way: I'm not fool enough to; I know you can afford more. Q. I'm asking you: Do you have authority to do so? A. I told you we had the authority to negotiate a contract Q,,-:I--ask-,you: Do, you have - the authority to negotiate wage rates less than those set forth in the basic contract? - - , , A. - Why should we?= Now, the operators in this area right -now, are paying those rates and some of them higher than the=rates. -MIL LEE: Would you, direct-him to answer that question? ' - - ,TiuAL ExAmNER: Do you have the authority or don't you. I think it is a simple question. Answer it.: ` THE;,wrrNEss: We never went into detail that far so that we-could, negotiate anythingless than what they can afford: We know they cap afford to pay it. As ,indicated, ,the-foregoing evidence in my opinion bears, out Respondent's contention-that-the union negotiators had no authority to agree to wage rates less than called for in the basic contract and That anything less than those'rates; including the 40-cent royalty, were actuallynonnegotiable. The unilateral --exclusion or. - limitation , of any clearly bargainable matters such, as pertained here is a refusal to bargain in itself.,, Notwithstanding how Respondent's conduct might have been appraised in'the absence of such intransigence by the Union, in the face of-the Union's lack of good faith -here it cannot be said-- that Respondent's conduct at the-bargaining table violated Section 8(a)(5) of the Act. I so find. Times Publishing Company, 72 NLRB 676; American -.Cyanamid Company (Marietta Plant), 129 NLRB ,683; =Artiste Permanent Ware- Company, -172 NLRB No. 683; United Electrical, Radio & Machine Workers -of, America (UE), Local 1113 v. N.L.R.B., 223 F.2d 338. Since the failure to reach agreement on a contract cannot be charged to Respondent, the strike that began on August 8 cannot be said to have been caused by Respondent's unfair labor practices.2 However, the credited evidence further shows that conduct by Respondent subsequent to the strike did violate both Section 8(a)(1) and (5) and thus converted what originally was an economic strike into an unfair labor practice strike. Thus, in September 1970 Thompson called employees Walter Fullerton and Ray Lark to his office. There Thompson told them that he wanted them to complete certain work and offered them an increase of 50 cents an hour if they would do the work. The employees told Thompson that they would have to take it up with the other strikers and would let him know. The following day Thompson was informed that the men had rejected his offer. Such bypassing by Respondent of the duly certified collective-bargaining agent of the employees and dealing with them directly violated both Section 8(a)(1) and (5) of the Act .3 Respondent, is mistaken if it feels that because the work it requested the, employees to do was tempolii:' and in the nature of emergency ,work the prohibition in the Act against direct dealings,with.the employees at the exclusion of their bargaining representative was permissible. A- short time, after Thompson's request to, Fullerton and Lark to return to_work had been rejecteddtiThompson_called Fullerton on the telephone, cursed him, and stated thatt"he was.going to get" Fullerton, and Lark because , of weir rejection of his request to come, back' to " work. In the conversation,Thompson' also stated that he was going to dynamite Union President Staples' home. Sometime thereafter, around October 6, Thompson went to Lark's home and again`castigated, him, for, "not doing right" by,him and threatening to,'have Staples and a local judge who had semen to the strikers `,'put away-.In both the foregoing situations there is, no doubt that Thompson was in. a state of, agitation ,that- must -have bordered on frenzy when these conversations took plAce -and that the employees involved may have diseountedUnnucli ofwhat Thompsonsaid. Nevertheless I still find `Thompson's threats here to have violated Section 8(a)(_1)of the Act. The day after the strike, began -employee'^Boyd Jenkins met, Leroy, Thompson's brother Burt, an a_ dmitted supervi- sor, ,by chance in a bar. Thompson-told Jenkins that the employees' hospitalization, had, been. canceled 5 and that a 50-cent per hour raise previously -granted them would be taken away when they returned to work.'Jenkins.said, that he would look for another job. Thompsonanswered, "vwell, we've got that stopped ,too .. , we've called everybody and there's-no use in going anywhere around here : hunting for a job because you're' not going to get it." Thompson also told Jenkins that he knew whohad voted to go out on strike. The cancellation of the employees', hospitalization coverage and the threats to reduce the employees' wages and to blacklist them for engaging in union activities I find to be additional violations by Respondent of Section 8(a)(1) of the Act. Thompson's further remark about knowing who had voted to go out on strike constitutes an additional inference to the employees that their union activities were under Respondent's surveillance and constituted a further violation of Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce in the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. 2 At the time of the strike only one violation of the Act had taken place. Sometime in July, according to the credited evidence, Respondent's president, Leroy Thompson, had told employee Frank Lumadue that he knew the Union had scheduled a meeting for that evening in which a strike vote was going to be taken. Thompson asked Lumadue to do what he could to prevent a strike. Thompson's remarks violated Section 8(a)(1) by giving Lumadue the impression that the employees' union activities were under Respondent's surveillance. 3 Because I am not convinced that the General Counsel has proved by the necessary preponderance that the 50 -cent increase by Respondent was not permitted by the Union's original commitment to Respondent not to stand in the way of any increases, I make no findings on that allegation. 4 It involved remedial backfilling required by state Law. 5 which was true. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD V: THE REMEDY Having found that Respondent has- engaged in certain unfair labor practices affecting commerce, I shall recom- mend `that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. Having' found that Respondent refused to bargain collectively with the Union by bypassing the Union and attempting to deal directly- with the employees, I shall recommend that Respondent cease and desist therefrom or in any other manner refusing to bargain with the Union. However, in view "of'theiillegal position'taken by the Union with respect - to negotiations themselves, I -shall 'not recommend an affirmative order to bargain. Having found that the strike herein was an unfair labor practice strike, ' I shall recommend that Respondent offer, upon application,-, immediate reinstatement to the strikers to then former For" substantially- equivalent positions, without prejudice "to, their' seniority' and other rights and privileges, dismissing, if necessary, any replacements hired since September `7, 1970" (the approximate date that the strike was converted from an economic strike '-to an unfair labor practice strike). - '' Having"found `that Respondent's cancellation of - its employees' Hospitalization insurance violated the Act,` I shall recommend restoration of such insurance . Further, in: the event that any employee suffered any expense as a result of the cancellation of said` insurance, I will recommend that Respondent reimburse the employee for the expense so incurred. In vie*. of the nature of the unfair labor practices committed, the commission by the Respondent of-similar and other unfair labor ' practices may be, anticipated. Therefore I shall recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. Upon the basis of the above findingsof..factand upon the entire record in,the case ,1 make the =following:, CONCLUSIONS OF LAW ' " 1. At all times material Respondent has been engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2. United Mine Workers of America is , -a, -labor organization within the meaning of Section 2(5) of the Act. 3. By imposing and- threatening physical or, , economic reprisals for participating in union -activity aid -making inferences to ,employees that their union activities are under surveillance, Respondent has interfered with, restrained, and coerced employees within .the meaning of Section 8(aXl) of the Act. 4. All production and maintenance., employees of Thompson Brothers ,Coal Company, Inc.,; 'Th ompson ; Coal Company, Inc:, and Thompson; and Phillips Clay -.Compa- ny,,, Inc., at its strip- mines m,Clearfield County„Pennsylva- nia, including processingand ioading:plantemployees,^but;, excluding all office clerical employees, guards, professional, employees and, supervisors ,as, defined in the Act -constitute, an appropriate unit for the,, purposes of collective bargain- ing within the meaning of Section 9(b) of the Act. , ` - 5. At all times since June 6, 1969, the Union has=been' the exclusive :representative -,of all employees in r the above unit within the meaning of Section 9(a)'of the Act. 6, By bypassing the Union and Iealin& directly with, employees regarding matters subject to collective, bargain- ing, ' Respondent ' has failed and. -refused ` to bargain in violationof Section 8(aX5) of the Act.,' 7. The 'strike that began on August g as an: economic strike was converted to an unfair laborpractice;strike by- September 7, 1970. [Recommended Order omitted from publication.]