Southwest Engraving Co.

694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD L.E.M., Inc., d/b/a Southwest Engraving Co. and Towell Printing Co. and International Brotherhood of Bookbinders, AFL-CIO L.E.M., Inc., d/b/a Southwest Engraving Co. and Towell Printing Co. and Shirley Thome, Petitioner and International Brotherhood of Bookbinders, AFL-CIO. Cases 14-CA-5743 and 14-UD-55 August 4, 1972 DECISION, ORDER, AND DIRECTION On June 24, 1971, Trial Examiner Gordon J. Myatt issued the attached Decision in this proceeding. Thereafter, the Charging Party filed a Motion To Reopen Record and supporting affidavits and exceptions and a supporting brief, the General Counsel filed exceptions and a supporting brief, and the Respondent filed cross-exceptions and a support- ing brief. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, conclusions, and recommendations only to the extent consistent with our Decision herein. The complaint alleges that Respondent violated Section 8(a)(1), (3), and (5) of the Act by refusing to discharge employees at the request of the Union and by failing to recall strikers to the jobs occupied by the employees whose discharges were requested. Respondent contends that the Board is without jurisdiction as this is a question of contract interpre- tation and that the Board should defer to the grievance and arbitration procedure embodied in the collective-bargaining agreement between Respon- dent and the Union. We agree with Respondent's contention that this dispute is essentially a dispute over the terms and meaning of the contract between Respondent and the Union. For that reason, we find merit in Respondent's exceptions that the dispute should be resolved pursuant to the contract and we shall dismiss the complaint. The Union was certified as bargaining representa- tive of Respondent's approximately 20 unit employ- ees on September 2, 1969. Following unsuccessful negotiations for a contract, the employees struck on November 20, 1969. During the strike which lasted until June 18, 1970, some employees returned to work and some permanent replacements were hired. In February 1970, while the strike was still in progress, Respondent interviewed Robert Posey, an applicant for a supervisory position. At that time Respondent's president hired Posey but agreed that he would not report for work until it was time for him to take summer vacation from his current job. 198 NLRB No. 99 As a condition of Posey's employment, Respondent's president, Matt, agreed to hire Posey's wife, Peggy. Posey began working for Respondent in July and his wife began on August 17, 1970, after the strike had terminated. - When the strike terminated on June 18, the Union and the Respondent negotiated a contract. This contract, which contained a union-security clause, was signed on June 24 and was made retroactive to June 18. Also at this time the Union informed Matt that the strikers were ready to return to work but that a few would not be available. Matt in turn informed the Union that he had hired the Poseys who would not report for work until later. Pursuant to a request of Respondent, the Union sent a letter on July 31, listing the names and current addresses of striking employees available to return to work. A union deauthonzation petition was filed on August 13 by Shirley Thorne, one of the replace- ments. The Union informed Respondent by letter of August 20 that employees Malone and Ben Sarver had failed to tender an initiation fee and periodic dues pursuant to the collective-bargaining agreement and requested that Respondent immediately dis- charge these individuals. On August 25, at a meeting with the union officials and by letter, Respondent refused to accede to the request to discharge Malone and Sarver, stating that a UD petition had been filed and until the matter was disposed of by the Board it would refrain from taking any action which "might be construed as an unfair labor practice." On the same day, August 25, the Union, for the same reason, requested the discharge of Thorne, Wynell Defoe, Edith Defoe, Schmidt, Hodgins, and Kathleen Sarver. Respondent answered on August 26 that it would not discharge these employees, giving the same reason it had to the previous request. The Union sent a letter to the Respondent on September 4, informing the Respondent that it was not paying its employees the wage rates set forth in the collective-bargaining agreement, that it had refused to effect the discharge of employees request- ed by the Union, and that the Union intended to grieve the matter under the contract. Thereafter, on September 24, Matt met with the union officials and restated his above cited reasons for not discharging the employees. He further stated that the grievance was brought too late, that under the contract it should have been brought by July 29. At that point the union officials adjourned the meeting and the grievance was not again brought up. On October 15, the Union sent a letter to Matt requesting the discharge of Peggy Posey for failure to tender initiation fees and periodic dues. Respondent answered the Union on October 21, refusing to SOUTHWEST ENGRAVING CO. discharge Posey for the same reason it had refused to carry out the other discharges. On November 19, the UD election was held with all 21 ballots being challenged either by the Union, the Respondent, or the Board agent. The Trial Examiner dismissed the Respondent's contention that the Board lacked jurisdiction to decide the case, stating that a union-security provi- sion was a valid term and condition of employment and to alter such a provision unilaterally by failing to give effect to it, in certain circumstances, is a violation of Section 8(a)(5). However, he also found that Respondent did not violate the Act in this instance, because there was no probative evidence in the record that any of the replacement employees whom the Union requested be discharged received notification from the Union regarding their obliga- tions under the union-security provisions of the contract to tender their dues and fees. As Respon- dent was under no obligation to discharge these employees due to the Union's failure to perform its fiduciary duty, the Respondent was also not obliged to recall replaced strikers to fill vacancies which would have been created had it carried out the discharges. Thus he also dismissed the 8(a)(3) allegation. The Trial Examiner also found that Respondent hired Peggy Posey on August 17, after the strike had ended, and that she was doing the work of a replaced striker. The failure to recall a striker rather than hire Peggy Posey, he found, violated Section 8(a)(1) in that it discouraged employees from exercising their protected right to strike. This action also violated Section 8(a)(3) in that it discriminated against striking employees because of their activities on behalf of the Union. The Trial Examiner rejected the Union's conten- tion that Respondent violated Section 8(a)(1) and (3) by altering its layoff policy and allowing supervisors to perform work the striking employees had per- formed, prior to the strike, as such allegation was not supported by the record. The record showed that the steps along this line which had been taken were sufficiently justified by the decline in business and were not taken to avoid recalling strikers. As the Board is not deciding the merits of this dispute, we do not adopt the Trial Examiner's finding that Respondent violated Section 8(a)(1) and (3) by hiring Peggy Posey and assigning her to work which had been done by striking employees prior to the strike. We shall, however, find that she was eligible to vote in the election. The Board in the past has held that if an employer makes a commitment to an applicant for a striker's job, we will normally 695 regard that hire as a legitimate replacement even though the striker requests reinstatement before the replacement actually begins to work.' Although Mrs. Posey did not report to work until August 17, Respondent had made the commitment to give her a job during the previous February, at the same time her husband was given a commitment for a job as a supervisor. We, therefore, find that Peggy Posey was a legitimate replacement for a striker and we shall overrule the challenge to her ballot. We will not herein decide whether Respondent was obligated to discharge the replacements upon request of the Union, because of their failure to tender dues and fees under the union-security clause. Neither will we decide whether Respondent was obliged to recall strikers to fill the vacancies left open had Respon- dent discharged these replacements. Although we do not agree with the Respondent that the Board lacks jurisdiction to decide this controversy, we do believe that the dispute is based on the parties' interpretation of the contract, and would be best resolved through the grievance procedure provided for in the parties' contract. In Collyer Insulated Wire, 192 NLRB No. 150, a majority of the Board set forth its belief that disputes over interpretation of the contract can best be resolved through the use of the method provided for in the contract itself, where such contract contains grievance-arbitration procedures. We also set forth fully the considerations which led us to that conclusion. In the instant case, it is not necessary for us to reiterate those considerations, but rather to apply them to the present facts. In article V of the contract made effective on June 18, 1970, the parties included a fully detailed procedure whereby grievances concerning the mean- ing, interpretation, or application of the agreement shall be determined according to grievance machin- ery, culminating in arbitration upon the failure of the preceding steps of the procedure to resolve the dispute. Also included in the contract is a lawful union- security provision, stating that, as a condition of employment, an employee must be or become a member of the Union the 30th day following the date of the agreement, or following the beginning of such employment, whichever is later. It is clear that any obligation which the Respondent might have had to abide by the request of the Union to discharge the employees emanated from the union-security clause in the contract. Absent such a clause, there would be no obligation for the Respondent to effect the discharges. Indeed, Respondent may well have been e H & F Bench Co, 188 NLRB No 98, citing Anderson, Clayton & Co, Foods Division, 120 NLRB 1208 696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in violation of the Act had it acceded to such a request absent the contract clause. Because the dispute apses over the alleged failure to honor the contract, we believe it is consistent with Federal labor policy, and with the intent of Congress, for the Board not to decide the controversy on its merits but to defer to the grievance-arbitration procedure provided by the parties in article V of the contract. The UD Election The union deauthorization election in Case 14-UD-55, which was consolidated with the com- plaint case, took place on November 13, 1970. The Union challenged the ballots of Edith Defoe, Wynell Defoe, Ben Sarver, Kathleen Sarver, Mae Schmidt, Shirley Thome, and Peggy Posey, on the grounds that these employees should have been discharged, prior to the election, under the union-security provision of the collective-bargaining agreement. We have not decided the issue of whether these employees should have been discharged under the union-security provision of the contract, but have deferred the matter to be resolved through the grievance-arbitration provisions of the contract. However, since these seven employees were in the employ of the Employer on the date of the election, and were therefore part of the unit for which the election was conducted, we shall overrule the challenges to them and direct that their ballots be opened and be counted. The Employer challenged the ballots of replaced strikers Alma Buehler, Dorothy Cadwalender, Mil- dred Campbell, Shirley Chaplin, Dora Donovan, Wilma Kearby, Viola Loos, Lennie Norment, Har- riet Romero, Mary Shepard, Carolyn Walts, and Iris Wedig. We agree with the Trial Examiner, for the reasons given by him, that these replaced strikers were in the unit and eligible to vote in the election conducted within 12 months of the commencement of the strike. We shall therefore overrule the challenges to their ballots and direct that their ballots be opened and counted. In agreement with the Trial Examiner we shall sustain the challenge to the ballot of Marvin Walts and shall not direct that his ballot be opened and counted. We disagree with the Trial Examiner' s recommen- dation that the challenge to Thaycel Allison be overruled. Allison received a letter of recall advising him that a position was open in "plant maintenance" and directing him to report to, work on October 5. We believe that had Allison thought that the work being offered him was more in the line of equipment maintenance, for which he was not capable, than in the janitorial line of maintenance, for which he was capable, he had an obligation to at least inquire of the Employer what work would be expected of him. Rather, Allison did not respond at all to the offer. This we find to be a rejection of the reinstatement offer. Further, we do not believe that the offer of a job as "plant maintenance man" was an ambiguous offer under the circumstances. We therefore sustain the challenge to Allison and we will not direct that his ballot be opened and counted. REMEDY Without prejudice to any party and without deciding the merits of the controversy related to Respondent's failure to discharge employees at the request of the Union, we shall order that the allegation in the complaint herein be dismissed, but we shall retain jurisdiction for a limited purpose. We are aware that the parties herein have not resolved their dispute by the contractual grievance and arbitration procedure and that, therefore, we cannot now inquire whether resolution of the dispute will comport with the standards set forth in Spielberg Manufacturing Company.2 In order to eliminate the risk of prejudice to any party we shall retain jurisdiction over this dispute solely for the purpose of entertaining an appropriate and timely motion for further consideration upon a proper showing that either (a) the dispute has not, with reasonable promptness after the issuance of this Decision, either been resolved by amicable settlement in the griev- ance procedure or submitted promptly to arbitration or (b) the grievance or arbitration procedures have not been fair and regular or have reached a result which is repugnant to the Act.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the complaint herein be, and it hereby is, dismissed; provided, however, that jurisdiction in this proceeding is hereby retained for the limited purposes indicated in that portion of our Decision and Order herein entitled "Remedy." DIRECTION It is hereby directed that the Regional Director for Region 14 shall, pursuant to the Rules and Regula- tions of the Board and within 10 days from the date 2 112 NLRB 1080 3 Collyer Insulated Wire, 192 NLRB No. 150. SOUTHWEST ENGRAVING CO. 697 of this Decision, open and count the ballots of E. Defoe, W. Defoe, P. Posey, B. Sarver, K. Sarver, M. Schmidt, S. Thome, A. Buehler, D. Cadwalender, M. Campbell, S. Chaplin, D. Donovan, W. Kearby, V. Loos, L. Norment, H. Romero, M. Shepard, C. Walts, and I . Wedig, and thereafter issue and serve on the parties a tally of ballots, and issue the appropriate certification. IT IS FURTHER DIRECTED that Case 14-UD-55 be, and it hereby is, referred to the Regional Director for Region 14 for further proceedings pursuant hereto. MEMBERS FANNING and JENKINS, dissenting: We do not agree with our colleagues that the dispute which arose over Respondent's refusal to honor the request of the Union to discharge the striker replacements is a matter better resolved through the grievance-arbitration procedure provid- ed for in the contract. Nor would we dismiss those allegations of the complaint for that reason. In separate dissents in Collyer Insulated Wire,4 we fully explained our beliefs that the Board should not abdicate the authority given to it by Congress under Section 10(a) of the Act to resolve unfair labor practices, merely because the contract between the parties happens to contain grievance-arbitration provisions. These need not be reiterated here, especially as this case does not fall within even the outermost limits of the Collyer opinion. In contrast to the majority position herein, it is our opinion that the dispute between Respondent and the Union does not evolve from an interpretation of the union-security clause of the contract , but rather from an interpretation of the law . In its letters of August 25 and 26 and October 21, 1970, wherein the Respondent refused to discharge the individuals named by the Union as having failed to join the Union, Respondent gave as its reasons: "Please be advised that a UD petition has been filed with the National Labor Relations Board case No. 14-CA-5743." "Until such time as the National Labor Relations Board disposes of this matter the Company must refrain from taking any action which might be construed as an unfair labor practice." At a meeting between Respondent's officials and a representative of the Union, on September 24, 1970, Respondent restated the same reason for not honoring the Union's request. Clearly, Respondent's refusal to honor the union- security clause was not based on its interpretation of the union-security clause, but rather on its own interpretation of Board law and policy. A determina- tion as to Respondent's propriety in so interpreting these is not a question which can properly be placed before an arbitrator. The "expertise" in this situation is certainly not the unique province of an arbitrator. Under Section 8(d) of the Act, the duty to bargain collectively means that no party to a collective- bargaining agreement shall terminate or modify that agreement except under specified conditions. Such unauthorized modification or termination of the contract constitutes a refusal to bargain under Section 8(a)(5). Respondent's actions herein definite- ly did have the effect of not only modifying the contract, but terminating a clause in the contract. Whether such a modification or termination of the contract, under the circumstances present herein, violated the Act, is a determination which Congress not only authorized, but obligated the Board to make, regardless of whether such a violation may also have been a breach of contract subject to remedy in the courts. Further, the majority is herein deferring the dispute to be resolved under the grievance procedure, when in fact the grievant may be powerless under that procedure to submit the dispute . Under article V, section 1, of the contract, it is clear that an employee has a right to file a grievance through the grievance procedure, but it does not state that a union has such a right. Further, section 2 of article V recites the obligation to bring a grievance within 10 working days (5 working days in a case involving discharge), following the incident causing the grievance "or it will be considered void as a grievance." At the September 24 meeting between the parties, following the Union's September 4 statement of intent to file a grievance , Respondent showed its intent to rely upon the time limitation of section 2 of the grievance procedure . At that time, Respondent's official stated that the Union was late in bringing the grievance, as it should have been submitted by July 29. The Union thereafter did not pursue the matter any further under the grievance procedure. In view of the parties' reluctance to resolve the dispute under the grievance procedure ; the presence of a real question as to whether the dispute can be so resolved ; and, most significantly, the fact that the dispute does not involve an interpretation of the contract, we believe that the majority is in error in refusing to decide this case on its merits, and in dismissing the complaint. We are in agreement with the Trial Examiner, for the reasons given by him, that Respondent violated Section 8(a)(1) and (3) of the Act by hiring Peggy Posey on August 17, after the strike had terminated, rather than recalling a striker to work. The majority's reliance on H. & F. Binch Co. 5 and that line of cases is misplaced under the circumstances of the instant 4 192 NLRB No 150 5 188 NLRB No. 98. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case. In Binch (where we constituted the majority), the employer actively recruited the' replacements during the strike to do the work of the strikers. Also, there was only a short time between the recruiting and the start of work by that replacement, although the strike had terminated in the interim. In the instant case, Peggy Posey was promised a job in February, while the strike was in progress, not because Respondent intended to use her as a permanent replacement for a striker, but because it was necessary to give her a job in order to secure her husband's services as a supervisor. Although Mrs. Posey's husband began work in July, she did not begin until August 17 (2 months after the strike terminated). We stated in Binch that the question of what constitutes a real commitment will vary with the circumstances of each situation. Under the present circumstances, we do not believe Respondent's commitment in February to Posey made her a legitimate replacement for a strikers 6 As we would find that Peggy Posey should not have been hired on August 17, we would also not count her ballot in the election of November 13 Also, as we have not herein decided on its merits the dispute involving the application of the union-security clause, we do not decide whether the ballots of those employees whose discharge was requested should be opened and counted TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE GORDON J. MYATT, Trial Examiner: Upon a charge filed on August 14, 1970,1 by International Brotherhood of Bookbinders, AFL-CIO (hereinafter called the, Union) against L.E.M., Inc., d/b/a Southwest Engraving Co. and Towell Printing Co. (hereinafter called the Respondent), and upon an amended charge filed August 26, a complaint and a notice of hearing was first issued by the Regional Director for Region 14 on September 30. A series of amended charges were filed over the following months and the Regional Director caused the complaint to be amended accordingly. A union-security deauthorization petition was filed on August 13 by Shirley L. Thorne, an individual, in Case 14-UD-55 and an Order directing an election was issued on October 27. The election was held on November 13 and all voters were challenged variously by the Union, the Respondent, and the Board agent conducting the election. On February 12, 1971, the Union filed a third amended charge and on February 16, 1971, the Regional Director issued an amended complaint and notice of hearing. Finally, on February 17, 1971, the Regional Director issued a Report on Challenged Ballots and an Order consolidating the unfair labor practice case with the union-security proceeding and directed that all matters be heard and resolved by a Trial Examiner. This consolidated proceeding was tried before me in St. Louis, Missouri, on March 22 and 23, 1971. All parties were represented by counsel and afforded full opportunity ,to be heard and to introduce relevant evidence on all of the tissues involved. Briefs were submitted by all counsel and they have been fully considered by me in arriving at any decision in this matter. Upon the entire record herein, including my evaluation of the testimony of the witnesses, based upon my observation of their demeanor and upon consideration of the relevant evidence pertaining thereto, I make the following: FINDINGS OF FACT I. JURISDICTIONAL FINDINGS The Respondent is a Missouri corporation engaged in the business of manufacturing, selling, and distributing steel die engraving and embossing printing.2 The Respon- dent's plant is located in a section of the city of St . Louis, Missouri, described as Forest Park. During the year ending December 31, 1969, the Respondent in the course and conduct of its business operations purchased and caused to be delivered to its Forest Park plant materials and supplies valued in excess of $50,000; a major portion of which were delivered and transported to the plant directly from points located outside the State of Missouri . The balance of the materials and supplies were received from other enterprises located within the State of Missouri, but were delivered to said enterprises directly from points located outside of the ,State. The Respondent admits , and I find, that it is and has been at all times material herein, an employer within the (meaning of Section 2(6) and (7) of the Act. r II. THE LABOR ORGANIZATION INVOLVED International Brotherhood of Bookbinders , AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Major Issues To Be Resolved The major issues presented by this consolidated proceed- ing basically are: 1. Whether on the basis of the facts detailed below the Respondent violated Section 8(a)(5) of the Act by refusing to discharge, upon request by the Union, employees hired as permanent strike replacements because they failed to oin or tender union dues pursuant to union-security provisions contained in the collective-bargaining agree- ment. 2. Whether the Respondent violated Section 8(a)(3) and (1) of the Act by failing to discharge the strike replacements pursuant to the union-security clause and recall strikers on whose behalf the Union made an i Unless otherwise indicated, all dates herein refer to 1970 2 The complaint alleged that the Respondent was also engaged in letterpress and offset punting, but the evidence indicated that the Respondent disposed of all of its letterpress and offset machinery and was no longer engaged in this kind of work. SOUTHWEST ENGRAVING CO. 699 unconditional offer to return to work after the termination of an economic strike. 3. Whether the Respondent violated Section 8(a)(3) and (1) of the Act by allegedly hiring an employee prior to the termination of the strike when said employee did not commence work until after the strike had ended. 4. The final issue concerns the eligibility of the strike replacements and the strikers to vote in the union-security decertification election held on November 13. B. The Operative Facts On September 2, 1969, the Union was certified by the Board as the exclusive collective -bargaining representative for the employees of the Respondent.3 The Union and the Respondent attempted to negotiate a collective -bargaining agreement but were unsuccessful and the employees went on strike on November 20, 1969 . Prior to the strike the Respondent's operation consisted of both offset and letterpress printing and engraving and embossing work. The shop personnel consisted of approximately 20 employ- ees plus the plant superintendent. The Respondent's president, Lester E. Matt, also performed many duties in the shop. The plant superintendent, Kirkland, was a salaried employee who had been hired approximately a month before the strike commenced . In terms of responsi- bility, experience and duties in the shop the personnel prior to the strike were: Marvin Waits-Waits was the Respondent's most experi- enced pressman and capable of operating and setting up any machine in the plant . In addition to setting up work, Waits could mix any kind of ink and handle any kind of operation required of a pressman . Because of his experi- ence and ability the Respondent relied upon Waits to set up the work for other employees and to troubleshoot when the other employees were having difficulty with their machines or work .4 Lennis Norment-Norment was an hourly paid employee who had a number of duties. He handled the papercutting operation in which stock was cut down to the size needed for a particular job. Matt also performed this operation on occasion. In addition Norment was an experienced layout man and thoroughly familiar with all of the machinery in the plant. Approximately 65 percent of Norment's time was devoted to repairing the various presses and maintain- ing the plant equipment. Norment was also responsible for seeing that the plant was cleaned up on Saturdays.5 Larry Miller-Miller was an offset pressman who was being trained prior to the strike as a cameraman producing plates for the Respondent's lithographic operation. 3 The bargaining unit was described in the certification as follows All production and maintenance employees, including porters, shipping and receiving clerks and truckdnvers at the Employer's St Louis, Missouri, facilities excluding office clerical employees , guards, watch- men, professional employees, salesmen and supervisors as defined in the Act Matt testified that he considered Waits a supervisor because he could assign work to other employees Waits was an hourly paid employee, and from his testimony it is evident that he was a leadman at best The other employees looked to him for assignment of work if their jobs were completed or for assistance when they ran into difficulty Beyond this Waits had no other authority over the employees and asserted none of the responsibilities normally associated with one in a supervisory position For this reason, I do not credit Matt's testimony that Waits was a supervisor and Garry Crayne-This employee was an apprentice press- man with little or no experience in the trade. He was only employed a week prior to the strike. Ben Sarver-This employee was an embossing pressman. He was capable of setting up presses and mixing certain kinds of ink. His experience was not nearly as extensive as that of Waits. Carolyn Waits-The wife of Marvin Waits. She was originally hired by the Respondent as an embossing press feeder. Sometime prior to the strike this employee was being instructed by her husband on how to set up and change the dies on the larger embossing presses. At the time of the strike she was able to perform these setup duties without direct supervision, except for inspection of her work as it was being run. Anna S. Chaplin-This employee was an embossing press feeder who had prior experience with other engraving companies before working for the Respondent. She devoted the majority of her time on the smaller presses on which letterheads were run and was capable of setting up these machines and changing the die wipes. Chaplin could also mix certain basic inks, although she could not change colors. Harriet Romero-A press feeder who was also trained to set up the automatic hand feeding machines. This employee, along with C. Waits and Chaplin, was being trained by the Respondent prior to the strike to do set up work. Mary Shepard-An embossing press feeder who was also being trained to do setup work and was able to set up the smaller presses. Alma Buehler-An inspector and packer who also helped to gather the product together for shipping. In addition to these duties, Buehler ran the automatic feed machine and was able to set it up and change the dies. Kathleen Sarver-a press feeder and inspector. She was apparently capable of performing limited setup duties. Iris Wedig-An inspector and a packer who also was a feeder on the letterpress machinery. Dorothy Cadwalender, Viola Loos, Wilma Kearby-These three employees were embossing press feeders and inspec- tors. They were not capable of setting up the presses, but fed the stock into the machines and inspected the finished product; their own as well as that of others. Mildred Campbell, Dora Donovan- These two employees were primarily inspectors of engraving work and they performed a duty called "catching." This consisted of gathering work and laying it out separately to dry before it iwas bundled for shipment. find that he was simply a more experienced employee who acted in the capacity of a leadman in the plant. 5 As in the case of Waits, the Respondent claimed that Norment was a supervisor It is evident from Norment's testimony and from Matt's description of his duties, that this employee was not a supervisor Because of his ability to repair the machinery and keep it operating and because of his skill as a layout man, it was apparent that the employees relied on Norment, as they did Waits, when they were having difficulty or when the machines were not operating properly In my judgment, this does not make Norment a supervisor. The fact that he was responsible for seeing that the plant was cleaned on Saturdays simply indicates that he may have asserted some supervisory authonty over a few employees once a week This is not sufficient, however, to make him a supervisor within the meaning of the Act. 700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Victoria Nash-An apprentice feeder on the embossing machines who also performed the gathering work. At the time of the strike Nash was being taught to perform limited 'setup work. Thaycel Allison-An employee of limited capabilities whose primary function until September 1969 was to make pickups and deliveries. The Respondent cut back on this operation in September 1969, and required customers to bring and pick up their work. Allison then worked as a general handyman, assisting in packaging material for shipment by United Parcel and performingjamtorial duties around the plant. Two other employees, Britton and Martin, worked in the shop prior to the strike. However, at the trial the parties agreed to strike the names of these employees and there is no evidence as to what their duties were in the plant. Another employee, Mildred Myers, was a press feeder prior to the strike. After the strike started, Myers, who continued to work in the plant, was made a supervisor. The strike against the Respondent lasted until June 18. Prior to the termination of the strike Ben and Kathleen Sarver abandoned the Union's cause and returned to work for the Respondent. The Respondent also hired permanent replacements for some of the striking employees while the strike was in progress. The replacements were Edith Defoe, Wynell Defoe, Mae Schmidt, and Shirley Thome. Each of these individuals were hired as embossing press feeders and inspectors. In an effort to get additional working capital the Respondent sold all of its offset and letterpress equipment to another printing concern located in the same building. The Respondent had no control or interest in the company that bought the machinery and completely discontinued the offset and letterpress printing operations. Matt testified that the business declined during the strike and did not pick up until shortly before December, due to Christmas card work. He stated it then dropped after the seasonal work and only picked up temporarily at the time of the trial. According to Matt, the gross sales of Respondent in 1970 were $130,000 as contrasted to $186,000 in 1969. In order to adjust to the decline in business Matt first reduced the workday from 8 hours to 7 hours. He subsequently reduced the workweek from 5 to 4 days. He did not, however, lay off any of the replacement employees .6 In February, while the strike was still in progress, Matt interviewed an experienced pressman who was then employed by an engraving firm in Tennessee. This pressman, Robert Posey, was applying for a supervisory position in the plant. Matt testified that he hired Posey but agreed that he would not report to work until it was time for him to take his summer vacation on his current job. Matt stated that he agreed to these terms because it was the practice of Posey's then employer to give annual bonuses 6 This contrasted to the policy followed by the Respondent prior to the strike When business was slow the Respondent normally laid off the junior employees and recalled them when the work increased 7 Although the International Union is the Charging Party herein, the contract was signed by the Respondent, the International Union, Local 18 of the International Union (which handled the male employees), and Bindery Women's Union Local No 55, of the International Union (which dealt exclusively with female employees in the unit). For the sake of brevity in this decision, the two constituent Locals and the International Union will be referred to collectively as "the Union " to the employees when they went on vacation. In order not to forfeit the bonus, Posey insisted that he would not assume duties at the Respondent's plant until he was scheduled to go on vacation. It was also arranged between Posey and Matt that Posey's wife, who likewise worked for an engraving concern in Tennessee, would be hired by Matt. Posey began working for the Respondent in July as one of the supervisors in the plant. He had authority to hire, discharge, and assign work and was a salaried employee. On June 18 the Union terminated the strike and met with Matt in order to negotiate a collective-bargaining agree- ment. Matt testified that the union officials asked him for a list of the replacements who had been hired during the strike. They also told Matt that the strikers were ready to return to work but that a few would not be available. Matt testified that he informed the Union that he had hired two people from out of town who had to wind up their affairs and would report to work at a later date. He was referring to Robert and Peggy Posey. Matt met with the union officials on June 24 at which time a collective-bargaining agreement was signed.? This agreement contained a union-security clause which re- quired all employees in the unit to be or become members of the Union and to maintain a union membership in good standing as a condition of continued employment. The contract also contained a management rights clause.8 Matt also testified that he informed the Union at that time that two other individuals had been hired by Myers and that he was not aware of this on June 18. These individuals were informed by Myers that they would be called to work by the Respondent at a later date. It subsequently developed that neither of these individuals were ever told to report to work by the Respondent. On July 31, Timmermann, secretary-treasurer of Local 18, sent a letter to Matt listing the names and current addresses of the striking employees who were available to return to work. Matt testified that he did not receive the Union's letter, however I do not credit him in this regard. To the contrary, I find that Matt requested the information and did in fact receive the Union's response. On August 13 a UD petition was filed with the Regional Office by employee Shirley Thorne. The purpose of this petition was to request an election concerning the desire of the unit employees to rescind the union security provisions contained in the collective-bargaining agreement executed June 24. On August 17, Peggy Posey began working for the Respondent. She was hired as an embossing press feeder 8 The management rights clause stated as follows- The management of the Company's plant, including the right to relieve employees from duty for lack of work or other justifiable causes and to discipline and discharge for just cause (subject to Article V of this Agreement), to hire, promote, transfer and assign employees to their duties, to direct the working force, to plan and schedule production, to determine what constitutes efficient plant operation, to adopt and enforce responsible plant rules and regulations , is vested exclusively in the Company, except as modified by this Agreement [Article V related to the grievance procedure]. SOUTHWEST ENGRAVING CO. and inspector. However she was also capable of operating a pantograph machine 9 and the Respondent utilized her services on this equipment as well. Matt testified that the regular engraver to whom he subcontracted his work was ill, and he decided to use P. Posey on the pantograph in order to reduce the backlog of engraving work. Under examination by Counsel for the General Counsel he stated that Posey spent a small percentage of her time on this type of work. On direct examination by his own counsel, however, Matt testified that Posey spent 80 to 90 percent of her time in the engraving room. Other than Matt's conflicting testimony, there is no evidence concerning the amount of time spent by this employee on the pantograph as contrasted to the amount of time she worked as a feeder and inspector. On August 20, Timmermann sent a letter to Matt advising him that Malone 10 and Ben Sarver had not joined the Union pursuant to the collective-bargaining agreement and had failed to tender an initiation fee and periodic dues. The Union asked the Respondent to immediately dis- charge these individuals. On August 25, the Respondent, both at a meeting with the union officials and by way of a letter, refused to accede to the request to discharge Malone and Sarver. The Respondent stated that a UD petition had been filed and until the matter was disposed of by the Board it would refrain from taking any action which "might be construed as an unfair labor practice." Also on August 25, the secretary-treasurer of Local 55, Shanahan, sent a similar letter to Matt requesting the discharge of Thome, Wynell Defoe, Edith Defoe, Schmidt, Hodgins, and Kathleen Sarver. The Respondent replied to this request the following day in a letter stating that it would not discharge the employees for the reason that the UD petition had been filed and was pending before the Board. Malone, who was performing the janitorial work around the plant left the Respondent's employ sometime in August. The Respondent hired a succession of high school students to come in on Saturday to clean up the plant and perform janitorial work. On September 4, Timmermann and Shanahan sent a joint letter to Matt stating that the Respondent was not paying the employees the wage rates set forth in the collective-bargaining agreement and had refused to effect the discharge of the employees requested by the Union. The letter stated that it was the intent of both Locals to grieve the matter under the contract. Matt subsequently met with the union officials on September 24, but they were unable to arrive at any agreement on the matter. On September 14, Kiser, a pressman hired in March during the strike, left the Respondent's employ. On September 30, R. Posey sent a letter to Allison stating that 9 The pantograph was located in the engraving room It was used to reduce designs from master plates to smaller die for use on presses This equipment had not been operated by unit employees prior to the strike as the Respondent subcontracted out its engraving work 10 Malone was a student who worked on Saturdays performing janitorial work However on July 6, Malone, who was then out of school, apparently became a full-time employee performing the duties which had been performed by Allison prior to the strike 11 Allison testified that he understood the letter to mean that the Respondent wanted him to work as a maintenance man on the presses and 701 the Respondent had an opening for a "plant maintenance man." Allison was asked to report to work on October 5.11 Myers sent a recall letter to Marvin Waits on October 3 informing him that the Respondent wanted him to report to work immediately upon receipt of the letter. Waits responded in a handwritten note stating that he had found other employment and did not wish to return to work for the Respondent at that time. The Respondent then hired another pressman, Jones, who later quit.i2 On October 15 Shanahan sent a letter to Matt requesting the discharge of Peggy Posey. The Union' s letter was similar to the prior letters and the stated reason for request was that Posey had not joined the Union. Matt replied to the Union's letter on October 21 and refused to discharge Posey for the reasons stated previously in response to the prior discharge demands. On November 13 the UD election was held in the plant. The Union challenged the ballots of E. Defoe, W. Defoe, Peggy Posey, Ben Sarver, Kathleen Sarver, Schmidt, and Thorne. The Union's challenges were based on the fact that these employees should have been discharged under the umon-security provision of the collective-bargaining agree- ment. The Employer challenged the ballots of 12 of the striking employees who appeared to vote. The Employer took the position that the strike had terminated on June 18, prior to the election and the strikers were ineligible to vote, even though they may have been entitled to be placed on a preferential hiring list.13 In addition to the 12 strikers challenged by the Employer, two other strikers appeared and their ballots were challenged by the Board Agent. These individuals were Marvin Waits and Thaycel Allison. The Board Agent challenged these two individuals because their names were not included on the eligibility list containing the names of strikers and replacements supplied by the Employer. These two individuals were left off the eligibility list because the Employer contended that they had been offered reinstatement and refused. C. The Contention of the Parties The General Counsel contends that when the Respon- dent refused to abide by the Union's request to discharge employees who had not joined the Umon it failed to give effect to the union-security clause contained in the collective-bargaining agreement. It is contended that this failure was a unilateral modification of the agreement during its term which had a substantial impact on the unit. According to the General Counsel's theory, the unilateral modification constitutes a refusal to bargain with the Union and violates Section 8(a)(5) of the Act. The General Counsel also contends that the Respondent should not have hired Peggy Posey after the termination of the strike. Rather that the work which she performed should have other equipment He testified that this was work which had previously been performed by Norment and that he did not respond to the letter because he knew he was not capable of doing this kind of work 12 Matt testified that he did not hire any other pressman after Jones left nor did he attempt to recall any of the other strikers He stated that the other strikers were not qualified pressmen in his judgment and he decided that he would make do with the personnel he had in the shop. 13 The strikers challenged by the Employer were Buehler, Cadwalender, Campbell, Chaplin, Donovan, Kearby, Loos, Norment, Romero, C Waits, Wedig, and Shepard. 702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been performed by a recalled striker since an uncondition- al offer to return to work was made by the Union on behalf of the strikers. General Counsel further contends that by failing to discharge the replacement employees pursuant to the Union's request and by failing to recall the strikers to the jobs occupied by the replacement employees, the Respondent violated Section 8(a)(3) and (1) of the Act. This failure is cited as evidence of the Respondent' s intent to infringe upon the right of employees to strike and discriminates against them for engaging in lawful concert- ed activity. The Union adopts the General Counsel's theory but goes a step further. The Union contends that the Respondent violated Section 8(a)(1) and (3) by reassigning unit work to supervisors and changing its layoff procedure in order to avoid its obligations to recall strikers who had offered to return to work. The Union also takes the position that the replacement employees should have been discharged pursuant to the Union's request for the reason that they did not become members of the Union under the terms of the union-security provision in the contract and hence these employees were not entitled to vote in the election on November 13, 1970. The Respondent offers numerous arguments to demon- strate that its conduct did not violate the Act. First, the Respondent takes the position that the Board is without jurisdiction to determine whether it had breached the collective-bargaining agreement by refusing to discharge the employees on the Union's request because this would require passing judgment on a substantive term of the collective-bargaining agreement. The Respondent takes a position that the Board is precluded from acting in this fashion.14 In conjunction with this argument the Respon- dent states that the Union should have followed the grievance procedure and the Board should defer to the fact that the collective-bargaming agreement contains a method whereby the parties could resolve their differences under the contract; especially since it relates to a provision contained in the agreement. In addition, the Respondent contends that it was under no duty to discharge the employees as requested by the Union because the Union failed in its fiduciary duty to notify these employees of their obligation under the terms of the contract. Having failed to do so, Respondent contends that the employees were not required to join the Union or pay dues. Hence, the failure to discharge employees for this reason was not unlawful. The Respondent also contends that it did not violate Section 8(a)(3) of the Act by hiring P. Posey after the termination of the strike . It is argued that this employee was in fact hired prior to the termination of the strike, even though she did not report to work until after the strike ended. Further that Posey performed duties which were not performed by employees in the bargaining unit and could not be consider a replacement. Finally, Respondent offers the argument that the strikers were not eligible to 14 The Respondent cites H K Porter Co, Inc v. N LR B, 397 U.S 99, as support for this contention. 15 N L R B v Hotel, Motel and Club Employees' Union, Local 568, AFL-CIO [Philadelphia Sheraton ], 320 F 2d 254, 258 (C.A. 3, 1963), enfg. 136 NLRB 888 Accord N L.R B v Local 182, International Brotherhood of Teamsters [Associated Transport, Inc], 401 F 2d 509 (C A 2, 1968), cert denied 394 U.S 213, enfg 156 NLRB 335, amended 169 NLRB 1143; vote in the UD election because all of the legislative history and the statute itself relates to representation elections and not to union-security deauthonzation elections. According to the Respondent's theory, since nothing was said in the legislative history or in the Act relating to Section 9(e) which authorizes rescinding union-security provisions, it was not intended that strikers be eligible to vote in such an election. Concluding Findings I find no need to go into all of the extensive arguments offered by all counsel to arrive at my decision in this case. It is clear that the threshold issue to be resolved here is whether the Respondent violated Section 8(a)(5) of the Act by refusing to discharge the replacement employees who did not join the Union. The resolution of this question resolves much of what is alleged by Counsel for the General Counsel to constitute other violations in this case. Commencing at this point, I reject the Respondent's argument that under H.K. Porter, supra, the Board is without jurisdiction to act on the failure of the Respondent to comply with the union-security provision of the contract because it involves a matter of contract interpretation. It has been held that a union-security provision is a valid term and condition of employment, and to alter such a provision by unilaterally failing to give effect to it, in certain circumstances, constitutes a violation of Section 8(a)(5) and (d). Montgomery Ward & Co. Inc., 162 NLRB 369, 381-382. Therefore, while it may be a breach of contract actionable elsewhere, it is also within the purview of the Board's jurisdiction to be considered as a violation of the Act. However, to establish that such a violation has occurred it is necessary to prove more than a mere failure to discharge an employee upon request by a union. It has been held repeatedly by the Board and the courts that a fiduciary responsibility rests with the union seeking to enforce a union-security provision against an employee. This duty places a responsibility upon the union to "deal fairly" with the employee affected, and requires as a minimum that the union inform the employee of his membership obligation under the terms of ',the contract in order that the employee may take whatever action is necessary to protect his job tenure.15 As the Board stated in the Philadelphia Sheraton case, "when a Union requires a new employee to perfect membership under a lawful union-security agreement, it has a duty to notify the employee, at some point, as to what his membership obligations are. To permit a union to lawfully request the discharge of an employee for failure to meet his dues- paying obligations, where the provisions relating to such obligations are not disclosed to the employee [by the General Truck Drivers, Chauffeurs, Warehousemen and Helpers Local 270, IBT (Bulk Transport, Inc), 186 NLRB No 47, Teamsters Local Union No. 122, IBT (August A Busch & Co of Mass., Inc), 173 NLRB 1283, Granite City Steel Company, 169 NLRB 1009, Building Construction, Highway Pavers, Sewer and Tunnel Workers Union, Local No 113 (James Luterbach Construction Co, Inc), 167 NLRB 39 SOUTHWEST ENGRAVING CO. Union], would be grossly inequitable and contrary to the spirit of the Act." 16 Nor can this fiduciary responsibility be passed on to the Employer, for it is a responsibility which rests solely with the Union. Building Construction Union, Local 113, supra, 41. The facts in the instant case show that this "minimum fiduciary" responsibility was never met. Other than an attempt by the Counsel for General Counsel, through cross-examination, to get Matt to admit that two employ- ees questioned him about the obligations under the contract (which Matt denied), there is no probative evidence in this record that any of the replacement employees received notification from the Union regarding their obligations under the union-security provisions of the agreement. This is true in spite of the fact that Timmer- mann, secretary-treasurer of Local 18, was called upon to testify concerning the Union's request for reinstatement of the striking employees. At no time was Timmermann, or any one else, questioned by counsel for the General Counsel regarding notice to the replacement employees of their membership obligations to the Union. By failing to meet these minimum requirements the Union never perfected a lawful request that the replacement employees be discharged for failing to abide by the terms of the union-security provisions in the contract. It follows, therefore, that the Union's request for the discharge of the employees for failing to meet their obligations under the union-security provision was neither valid nor lawful and the Respondent's refusal to accede to the request, in these circumstances, can not be considered a violation of the Act. Accordingly, I find that the theory of the counsel for the General Counsel must be rejected and I further find that the Respondent did not violate Section 8(a)(5) of the Act by refusing to discharge the replacement employees pursuant to the Union's request. Having found that the Respondent was under no duty to discharge the replacements in these circumstances, the allegation that the Respondent violated Section 8(a)(3) of the Act by discriminating against the striking employees by not discharging the replacements and recalling the strikers must also be dismissed. If the Respondent had no obligation, as I have found, to discharge the replacements, there were no openings available for the striking employ- ees. Since the Respondent hired the employees as perma- nent replacements for the strikers in order to continue the operation of its business, it was not bound to discharge them in order to create vacancies for strikers wishing to return to work. N.L.R.B. v. MacKay Radio & Telegraph Co., 304 U.S. 333, 345-346 (1938); C.H. Guenther & Son, Inc., d/b/a Pioneer Flour Mills, 174 NLRB No. 174, enfd. 427" F.2d 983, 985 (C.A. 5, 1970). Accordingly, I find that the Respondent did not violate Section 8(a)(3) and (1) of the Act by failing to discharge the replacement employees as requested by the Union and recalling strikers to fill these positions. The complaint alleges that Respondent violated Section 8(a)(3) of the Act by hiring Peggy Posey on August 17 instead of recalling one of the senior striking employees. The evidence indicates that when Matt interviewed her husband for a supervisory position during the strike, he 703 agreed that he would also find a position for Posey's wife. Although Posey did not report to work until July in order to protect his bonus rights, Peggy Posey did not report until August. Matt testified that Peggy Posey was a feeder- inspector and that she possessed additional skills which allowed her to operate the pantograph equipment in the engraving room. He also testified that this equipment had not been used prior to the strike because he contracted out the engraving work. It is difficult to say on the basis of Matt's testimony how much time Peggy Posey devoted to the pantograph and how much of her time was spent on the embossing press machines. What is evident, however, is that Posey spent a portion of her time performing work which would normally have been performed by one of the strikers had the striker been recalled. The mere fact that the Respondent agreed to hire Peggy Posey in order to induce her husband to accept the supervisory position in no way relieves the Respondent of the statutory duty to recall a striking employee to fill a position that has become vacant. The right of a striking employee to reinstatement to a job which is available, and for which the striker is qualified, can not be defeated by a prior arrangement made by the Respondent in order to secure the services of a supervisory employee. The critical question then becomes whether Peggy Posey was perform- ing work for which a striker was qualified. I find that she was. The Respondent alleges that Posey's services were needed on the pantograph because the engraver to whom the Respondent had subcontracted work was ill. However there is no showing on this record that the Respondent attempted to subcontract this work, which was never a part of the unit work in the first instance, to any other engravers. I find therefore that the Respondent was using Peggy Posey in dual positions as it saw fit, and that a portion of her time was devoted to performing work for which strikers were qualified. Thus I find that instead of hiring Peggy Posey on August 17, the Respondent had an obligation under the Act to reinstate one of the strikers as an embossing press feeder and inspector. The failure of the Respondent to do this had the effect of discouraging employees from exercising their right to organize and to strike as guaranteed by Section 7 of the Act, and violates Section 8(a)(1). The failure to do so also violates Section 8(a)(3) because the Respondent was discriminating against striking employees because of their activities on behalf of the Union. Accordingly, I find that the Respondent did violate Section 8(a)(1) and (3) of the Act, by hiring Peggy Posey on August 17 and by failing to recall one of the striking employees to perform the work which Posey was now doing for the Respondent. The Respondent's attempt to justify this action on the grounds that Posey was operating the pantograph in the engraving room is not pursuasive in these circumstances. N.L.R.B. v. Great Dane Trailer, 388 U.S. 26, 34; N.L.R.B. v. Fleetwood Trailer Co., 389 U.S. 375. The Union contends in its brief that the Respondent also violated Section 8(a)(1) and (3) of the Act by altering its layoff policy and by allowing supervisors to perform work which the striking employees had performed prior to the strike. The Union contends that although these matters 16 Philadelphia Sheraton Corporation, supra, 896. 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not alleged in the complaint they were fully litigated at the hearing without objection by the Respondent and hence provide the basis for the finding of the violation. I find, however, that the record does not support the finding of such a violation as urged by the Union. There is testimony by Matt in the record that the Respondent's business had declined substantially. Indeed, the work force had decreased in size and the Respondent did not hire as many replacements for the strikers as there were employees on strike. The mere fact that some of the duties which had been performed by striking employees were now being performed by supervisory employees during a time when business was slow is not sufficient to hold that the Respondent was deliberately reassigning work in order to avoid recalling striking employees. Nor does the fact that the Respondent utilized short workweeks instead of layinrg off as it had in the past when business declined indicate that the Respondent was doing this to avoid recalling striking employees. The decline in business and the reduced work force following the termination of the strike were sufficient justification, in these circumstances, for the Respondent to utilize short workweeks instead of laying off employees and for the Respondent to require supervisors to do some of the work formally performed by employees in the unit. The UD Election The Union challenged the right of the replacement employees to vote in the election. Having found that the Employer was not required to discharge the strike replacements because the Union failed to satisfy its fiduciary responsibility to these employees, I now find that the basis for the Union's challenge to the ballot of six of the replacements is without merit. Therefore, I shall recommend that the challenges to the ballots of E. Defoe, W. Defoe, B. Sarver, K. Sarver, Mae Schmidt, and Shirley Thome be overruled and their ballots counted. The challenge to the ballot of P. Posey presents a different set of circumstances. I have found above that this individual was hired after the termination of the strike in violation of Section 8(a)(1) and (3) of the Act. I have further found that instead of employing this individual, the Respondent was obligated under the Act to recall one of the strikers. Thus, had Posey not been unlawfully hired she would not have been employed in the bargaining unit and available as a prospective voter in the election. Because I have found that Posey should not have been hired in the first instance and that a striker should have been recalled by the Respondent, I shall recommend that the challenge to P. Posey's ballot be sustained. The Employer challenged the ballots of 12 of the economic strikers on the grounds that they were perma- nently replaced and not entitled to vote. In its brief the Employer contended that although Congress in the 1959 amendments to the Statute gave economic strikers the right to vote in representation elections, this right did not extend to union-security deauthorization elections under Section 9(e), and more specifically the right did not extend to what the Respondent described as "former economic strikers." In this connection the Employer relies upon the Board's decision in Martin Bros.17 There the Board held that Congress intended by the 1959 amendments to Section 9(c)(3) "that a qualification of the right of economic strikers to vote is that they be on strike at the time of the election." Id., 1088. The holding in Martin Bros., decided in 1960, appears to fly in the face of the philosophy of more recent court and Board decisions dealing with the rights of economic strikers. For example, in Fleetwood Trailer the Supreme Court stated that under Section 2(3) of the Act "an individual whose work has ceased as a consequence of a labor dispute continues to be an employee if he had not obtained regular and substantially equivalent employment.18 The Court further held, citing Great Dane Trailer, supra, that unless an employer "who refuses to reinstate strikers can show that his action was due to legitimate and substantial business justifications, he is guilty of an unfair labor practice. The Board further explicated its interpretation of the intent of the 1959 amendments in the Laidlaw Corporation case, 171 NLRB No. 175. In that case the Board stated, "economic strikers who unconditionally apply for reinstatement at the time their positions are filled by permanent replacements: (1) remain employees; (2) are entitled to full reinstatement upon departure of replacements unless they have in the meantime acquired regular and substantially equivalent employment, or the employer can sustain his burden of proof that the failure to offer reinstatement was for legitimate and substantial business reasons." Thus, it is clear that economic strikers who make an unconditional application for reinstatement after the termination of a strike continue to remain a part of the bargaining unit. More recent application of this principle is found in Pioneer Flour Mills 19 where the Board dealt with the status of economic strikers in another context. In that case the employer was charged with violating Section 8(a)(5) by refusing to deal with the union after an economic strike had been terminated. The employer hired permanent replacements and questioned the union's majority status since it only considered the replacements and the employees who refused to go on strike as constituting members of the bargaining unit. The Board held that the employer was in error and that the unit consisted of all of the strikers who unconditionally offered to return to work after the cessation of the`,strike. The Board specifically stated that the strikers who made unconditional offers to return to work, "maintained thier status as economic strikers, and would have been permitted to vote in an election conducted under Section 9 of the Act.," (Emphasis supplied.) The Board quoted extensively from the legislative history 20 of the 1959 amendments to Section 9(c)(3) in which it clearly demonstrated that Congress intended that in an economic strike of not more than 12- month duration replaced strikers should be considered as members of the bargaining unit for purposes of determin- 17 The Martin Bros Container & Timber Products Corp, 127 NLRB 1086. 20 See Legislative History of the Labor-Management Reporting and 18 N L.R.B v The Fleetwood Trailer Co, Inc, supra 378. Disclosure Act of 1959, pp 427-429,452, 1064-1065, 1070, 1138, 1919 The 19 C.H Guenther & Son, Inc d/b/a Pioneer Flour Mills, 174 NLRB No pre-1959 provisions were described as "an unfair, union busting rule." 174, enfd 427 F 2d 983, (C.A. 5, 1970). SOUTHWEST ENGRAVING CO. ing a union's majority status. The Board held that although Section 9(c)(3) dealt with representation matters and the eligibility of voters in a Board-conducted election, it was "pertinent to a Section 8(a)(5) allegation in determining whether an employer had a reasonable basis for question- ing an incumbent union's presumed majority status." The Board further stated, "to refuse to include economic strikers in determining the representative status of the Union during an economic strike of short duration would permit a continuation of the abuses which the amendment to Section 9(c)(3) was intended to correct." By the same process of analogy, I find that the strikers in the instant case maintained their status as economic strikers after the Union made an unconditional offer on their behalf to return to work following the termination of the strike. To hold otherwise would be to condone the very abuses of "union busting" that Congress dealt with considering the 1959 amendments to Section 9(c)(3). While it is true that there was no mention of Section 9(e) during the consideration of the 1959 amendments, it is difficult to conceive that Congress intended to liberalize the rights of economic strikers in the representation area to prevent destruction of a union during an economic strike, while at the same time restricting the right of economic strikers to participate in elections pertaining to rescinding union- security provisions in an existing contract. Indeed, what more effective way to "destroy a union" than to limit participation to strike replacements and nonstrikers in such an election. Accordingly, I find on the basis of Pioneer Flour Mills and Laidlaw and the Supreme Court's holding in Fleetwood Trailer that the Martin Brothers case has been modified to the extent that the bargaining unit consists of economic strikers, whether on strike or not, as well as strike replacements and nonstrikers. I further find that it is of no consequence that the strike had terminated so long as the election was conducted within a 12-month period following the commencement of the strike. I shall, therefore, recommend that the challenges of the Employer to the eligibility of the economic strikers who appeared to vote in the UD election to be overruled and these ballots be opened and counted. The challenge by the Board agent to the ballot of Marvin Waits presents no great problem. On October 6, Waits was offered reinstatement and refused to accept it because he had found other substantially equivalent employment. Since the election was conducted after Waits had refused reinstatement, it is clear that Waits can not be considered an employee. N.L.R.B. v. Fleetwood Trailer Co., supra. Accordingly I recommend that the challenge to Marvin Waits' ballot be sustained. The final ballot to consider is that of Allison. Although Allison received a letter directing him to report to work on October 5, there is serious question as to whether this offer was sufficiently clear to be construed as directing him to report to work in his former position. During the testimony Matt made a distinction between janitorial maintenance and equipment maintenance. However, Allison was offered 21 In the event no exceptions are filed to this Recommended Order provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, recommendations, and Recommended Order herein shall, as provided in Section 10(c) of the Act 705 a position performing plant maintenance work. I find that this offer was sufficiently ambiguous so that the employee was unable to determine what type of work was being offered to him. While it may have been wiser for Allison to have contacted the Respondent, his failure to do so does not, in my judgment, constitute a rejection of an offer which was unclear in the first instance. I find, therefore, that Allison never received a bona fide offer for reinstate- ment from the Respondent because of the ambiguous nature of the wording of the letter, and that he continued to remain an employee in the bargaining unit entitled to vote in the election. Accordingly, I recommend that the ballot of Allison be opened and counted. CONCLUSIONS OF LAW 1. The Respondent, L.E.M., Inc., d/b/a Southwest Engraving Co. and Towell Printing Co., is an employer as defined in Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Brotherhood of Bookbinders, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent did not violate Section 8(a)(5) of the Act by refusing to accede to the Union's request to discharge strike replacements because they did not join the Union or remit periodic dues to the Union as required by the union-security provisions in the collective-bargaining agreement. 4. The Respondent did not violate Section 8(aX3) and (1) of the Act by refusing to discharge employees who did not join the Union pursuant to the union-security provi- sions in the collective-bargaining agreement and replace them with striking employees who had terminated an economic strike against the Respondent and on whose behalf the Union made an unconditional offer to return to work. 5. The Respondent did violate Section 8(a)(1) and (3) of the Act by hiring an employee to perform bargaining unit work after the termination of the economic strike and after the Union made unconditional application on behalf of the economic strikers to return to work. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has engaged in, and is engaging in, certain unfair labor practices , I should recommend the issuance of an order that it cease and desist therefrom and that it take certain affirmative action necessary to effectuate the policies of the Act. Accordingly, upon the foregoing findings of fact and conclusions of law and upon the entire record in this case, pursuant to Section 10(c) of the Act, I make the following: RECOMMENDED ORDER21 Respondent, L.E.M., Inc., d/b/a Southwest Engraving and in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions , and Order, and all objections thereto shall be deemed waived for all purposes. 706 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Co. and Towell Printing Co., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Hiring employees to perform work in the plant instead of recalling economic strikers who have terminated the strike against the Respondent and on whose behalf an unconditional application to return to work has been made. (b) And in any like or related manner interfering with, restraining, or coercing employees in the exercise of their right to self-organization guaranteed by Section 7 of the Act. 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Discharge any employee hired after the termination of the economic strike on June 18, 1970, and recall to any vacancy created by said discharge an employee who had engaged in the economic strike. (b) Post at its St. Louis, Missouri, plant copies of said notice attached hereto and marked "Appendix." 22 Copies of the notice on the forms provided by the Regional Director for Region 14, after being duly signed by the Respondent's authorized representative, shall be posted immediately upon receipt thereof, and maintained by it for a period of 60 consecutive days thereafter in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 14, in writing, within 20 days from the date of receipt of this Decision, what steps the Respondent has taken to comply herewith.23 IT IS FURTHER RECOMMENDED that the challenges to the ballots by the Union in the UD election be overruled and the ballots be opened and counted. It is also recommended that the Employer's challenges to ballots cast by striking employees be overruled and that the ballots be opened and counted. It is further recommended that the challenge by the Board Agent to the ballot of Thaycel Allison be overruled and that the ballot be opened and counted. In addition, it is recommended that a challenge to the ballot of Marvin Walts by the Board Agent be sustained for the reasons cited in this decision. IT IS FURTHER ORDERED that the allegations in the complaint setting forth violations not specifically found herein be dismissed. 22 In the event that the Board's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order 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 Board." 23 In the event that this recommended Order is adopted by the Board after exceptions have been filed, this provision shall be modified to read: "Notify the Regional Director for Region 14, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial before a duly designated Trial Examiner, that we Violated Federal law by hiring an employee after the termination of an economic strike instead of recalling a striking employee to fill this vacancy, we hereby notify our employees that: WE WILL NOT hire new employees to work in our plant instead of recalling employees who have ended the strike against us and made application to return to work. WE WILL discharge any employee hired after June 18, 1970, and recall the most senior striking employee who is available to work to fill the vacancy. WE WILL NOT unlawfully interfere with, restrain or coerce our employees in the exercise of their rights guaranteed by Section 7 of the National Labor Relations Act, as amended. L.E.M., INC ., D/B/A SOUTHWEST ENGRAVING CO. AND TOWELL PRINTING Co. (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, 210 North 12th Boulevard, Room 448, St. Louis, Missouri 63101, Telephone 314-622-4174.