Lytron, Inc.

554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lytron, Incorporated and Local # 1596, International Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America. Case 1-CA-8693 November 26, 1973 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On April 27, 1973, Administrative Law Judge Ramey Donovan issued the attached Decision in this proceeding. Thereafter, the Charging Party filed exceptions and a supporting brief. The Board, on August 27, 1973, issued its Decision and Order' in which the Board adopted the recommended Order of the Administrative Law Judge and ordered the Respondent to take the action set forth in the Administrative Law Judge's Order. However, prior to that date, the Board had received, but through inadvertence was not aware of, the Respondent's exceptions and brief in support which had been timely filed. Accordingly, the Board, on September 7, 1973, issued an Order Vacating Decision and Order, which vacated the Board's earlier Decision and Order and stated that the Respondent's exceptions and brief will be considered by the Board together with the Charging Party's exceptions and brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings,2 and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge and hereby orders that Respondent, Lytron, Incorporat- ed, Boston, Massachusetts, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. Administrative Law Judge. we are persuaded that the credited evidence of what transpired at the negotiating sessions and the Union's written proposal of May 15, 1972, accepted in writing by the Respondent on May 16, demonstrate that the parties agreed to a provision stating that , in the case of a transfer to a higher, lower, or equal labor grade, the senior qualified employee will be first offered such transfer. DECISION RAMEY DONOVAN, Administrative Law Judge: A charge and an amended charge were filed on November 16 and December 12, 1972, respectively, by the above Union against the above employer, Lytron, Incorporated, herein the Company or the Respondent. The General Counsel of the National Labor Relations Board issued a complaint on January 18, 1973, alleging that Respondent had refused to sign a contract with the Union, the bargaining agent of the employees in an appropriate unit, notwithstanding that the terms of the contract had been agreed upon. Such conduct is alleged to be in violation of Section 8(a)(1) and (5) of the Act. It is further alleged that a strike was caused by the aforesaid conduct and that, at the conclusion of the strike, Respondent has refused to reinstate 18 named employees to their former or substantially equivalent jobs, all in violation of Section 8(axl) and (3) of the Act. Respondent, in its answer, denies the commission of the alleged unfair labor practices and alleges that the Union had agreed to certain contract proposals by Respondent and has refused to embody such agreed-upon proposals in a written contract. Respondent further avers that the strike was in violation of Section 8(d) of the Act and that the employee strikers, having engaged in an illegal strike, are not entitled to the protection of the Act. The case was tried in Boston, Massachusetts, on February 14, 15 and 16, 1973. FINDINGS AND CONCLUSIONS 1. JURISDICTION At all times material, Respondent is a Massachusetts corporation with its principal office and place of business in Woburn, Massachusetts, where it is engaged in the manufacture, sale, and distribution of thermal temperature control units and related products. In the course and conduct of its business, Respondent annually ships products valued in excess of $50,000 from its plant, directly to points outside Massachusetts; and annually receives goods at its plant valued in excess of $50,000 shipped directly from outside Massachusetts. Respondent is an employer engaged in commerce within the meaning of the Act. The Union is a labor organization within the meaning of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES 1 205 NLRB No. 149. 2 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Board's established policy not to overrule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully examined the record and find no basis for reversing his findings. Like the 207 NLRB No. 88 Since 1966 the Union has been the exclusive bargaining agent for the employees at Respondent's plant in the following unit: All production and maintenance employees, including materials handlers and leadmen, but excluding all office clerical employees, professional employees, guards and supervisors as defined in the Act. LYTRON, INCORPORATED 555 The May 15, 1970, to May 15, 1972, contract between the parties contained, inter alia, the following sections: 5.11 Senior employees shall have first option to transfer to a shift of their choice when there are openings in their job classification on other shifts. 5.12(a) [not relevant]. (b) The Company may make temporary transfers for its convenience for periods not to exceed ninety (90) days. . . . If such transfer is to a job in the same or lower paying labor grade, the employee will continue to be paid at his regular rate. ... In making temporary transfers, the Company shall determine the classification from which such transfer is to be made, and in the case of a transfer to a higher paying labor grade, the senior qualified employee will be offered such temporary transfer, and in the case of a transfer to a lower paying labor grade, the junior qualified employee will be so temporarily transferred. In the circumstances of the impending expiration of the above contract in May 1972, the parties undertook, in April 1972, the negotiation of a new contract. At the various meetings between the parties, Strauss, general manager, was the principal company negotiator and spokesman. With him were General Foreman McFarlane; Curtis, a management representative; and Attorney Welch. Welch was present at most but not all meetings. For the Union, there was Ofria, chairman of the shop committee; Ceccaroni, business agent of the Union; Alerio, subregion- al director of the Union; and three- or four employee members of the Union's shop committee. Alerio was not present at all the meetings. Two or three meetings of a preliminary nature were held around the middle of April and early May 1972. The Company and the Union read their respective proposals and each then submitted the written proposals for changes in the existing contract and specified the paragraphs thereof and the proposed changes therein. Among the company proposals submitted was one respecting paragraph 5.12(b), second paragraph, of the old contract. The proposed paragraph was: In making temporary transfers, the Company shall determine the classification from which such transfer is to be made, and in the case of a transfer to a higher paying labor grade, the senior qualified employee will be offered such temporary transfer, and in the case of a transfer to a lower paying labor grade the Company will have the, right to select the employee to be temporarily transferred. The initial union proposal on 5.12(b) was limited to the first paragraph of that section and no proposal was made to alter the 'second paragraph of that section in the old contract. The parties met on May 8 and 9 and went down the lists of the two proposals for changes in the old contract. The effort was to narrow the issues on which they were apart and apparently some progress was made.' On May 10, 12, and 15, the parties again met. The meeting on May 12 was apparently very brief and was adjourned because of an industrial accident in the plant.2 The three witnesses who testified in this hearing, Ofria and Ceccaroni, for the General Counsel, and Strauss, for the Respondent, gave conflicting versions of what transpired regarding the second paragraph of section 5.12(b). Based on my observation of the witnesses and an analysis of all the evidence, it is my opinion that what occurred at the above meetings, principally on May 10 and 15, is as follows. The Company, referring to its proposed change in the second paragraph of section 5.12(b), said that it wanted flexibility in making transfers to lower rated jobs and that is why its proposal would give the Company the right to select the transferee.3 The Company also stated, and Strauss testified, that he pointed out that under the old contract the Company had been picking any available employee for temporary transfer to lower jobs and had thus been violating the contract with impunity. However, the Company wished to change the situation of potential vulnerability for violating the contract and had therefore proposed the aforementioned change. Since the Company's proposal to change the second paragraph of 5.12(b) had thus, in effect, opened up the area, the Union, through Business Agent Ceccaroni, counterproposed that the senior employee should have the option to make the temporary transfer to the lower rated job.4 The reasoning advanced for the proposal was that by having this option, the senior employee would have the opportunity to take a temporary transfer to a lower job and thus become qualified in the lower job as well as in his regular job. In the event of a subsequent layoff this would be important because, under the contract, in the event of a layoff, the laid-off employee could bump a junior, employ- ee if the senior employee was qualified in the junior's job. The Company, through Strauss, expressed opposition to the above union proposal and the discussion went back and forth. No agreement was reached on the disputed portion of 5.12(b) on May 10. On May 15, the parties again adhered to their respective positions on'section 5.12(b). After Ceccaroni had stated the union proposal that the senior man should have the option to take a temporary transfer to a lower rated job when the Company desired to make a temporary transfer, Strauss turned to General Foreman McFarlane and asked him "if he could live with it. " 5 ' McFarlane said he could- or said that he did not have that much trouble with the men and there should not be any problem and it should be "okay." 6 Strauss then undertook to put in writing "what was agreed to," but, according to Strauss, "I was having difficulty writing the words" and it was agreed that Ceccaroni should 1 Ceccarom and Aleno were not present at these meetings. 2 All meetings were held in a room at the plant. - 3 The old contract provided that on a temporary transfer to a lower rated job the junior employee would be transferred. 4 The parties were in agreement that the portion of the second paragraph of 5.12(b) in the old contract, providing that the senior qualified employee "will be offered such temporary transfer" to a higher paying labor grade, should be continued in the new contract. 5 Quite apparently the general foreman would be the man closest to the employees in the actual day-to-day work in the plant, including temporary transfers and so forth. 6 Although he places the matter in a different context, Strauss testified that he then said, in substance, all right, you will have to live with the situation. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD draft the terms of the agreement on section 5.12(b) aforementioned. At some point in the May 15 meeting, the Union dictated and gave to the company negotiators a typed document, entitled "The Union Proposals." Eight items were listed thereon. One of the items was: 5. Temporary Transfers-modify to provide that seniority employees will have the option of transfers to higher, lower, or equal rated jobs. [This is the sec. 5.12(b) proposal.] Also, on May 15, the Company submitted to the union negotiators a typed document entitled "The Company Offer." Five proposed changes in the existing contract were set forth. Then followed the sentence: The Company and the Union have agreed to intent on changing the wording of the following items: [8 items are listed, among which was item 31 3. Item 5.12(b) On the next day, May 16, 1972, the Company addressed the following letter signed by Strauss to its employees: To: Fellow Employees Since I spoke to you last I thought it best to advise you at this time as to the respective positions of the Company and the Union relative to contract negotia- tions. The Company and your negotiating committee met yesterday. I am attaching a copy of the Union and Company proposals made at that time [the respective proposals of May 15 have been described above]. Items 5, 6, and 7 of the Union proposal have been accepted. [then are listed 6 main issues still outstanding between the parties ] The parties met again on May 17 and 22 at the office of the Federal Mediation Service. Items 5, 6, and 7 of the union proposal of May 15 were not discussed since both sides believed that the Company had accepted these proposals of the Union. The parties discussed the issues that were still outstanding and both sides testified that these issues were resolved. Strauss testified that, at the end of the last meeting in the Federal Mediation office, the parties had "reached an agreement" and the negotiators shook hands with their opposite numbers. Ceccaroni and Ofria testified to the same effect. As Ceccaroni stated, "And at the conclusion of the negotiations, the parties, you 7 At no prior meetings had the parties shaken hands at the end of the particular meeting. s The Company had approximately 26 or 27 employees. s The old contract was serving as the basic instrument and the Company on June 27 had only submitted a draft of the agreed-upon changes and not a complete contract instrument. Io Quoted, supra. hereinabove. 11 There was no dispute between the parties that, as in the old contract, know, shook-showed through this handshake-that nego- tiations had been concluded and an agreement was reached." 7 It was mutually understood that the Company would put the agreements into writing draft the contract, and submit it to the Union for its perusal. The following day, Ofria and the union committee told the union membership of the basic contract package that had been negotiated by the parties and it was ratified by the memberships That same day the Company was advised of the ratification. Slightly more than a month later, Strauss sent to the Union seven pages "of the contract changes negotiated between the parties as finalized on May 22, 1972, and effective as of May 15, 1972."' The letter concluded: May we hear from you as soon as possible so that we can have the contract put in its final form for publication .9 The portion of the contract changes submitted by the Company to the Union on June 27, 1972, that dealt with section 5.12 read: In making temporary transfers, the Company shall determine the classification from which such transfer is to be made, and in the case of a higher paying labor grade the senior qualified employee will be offered such temporary transfer, and in the case of a transfer to a lower paying labor grade, the Company will have the right to select the employee to be temporarily trans- ferred. Upon receipt of the Company's June 27 letter and the draft of the changes in the contract, Ofria made various longhand notations on the draft and returned it to the Company. For instance, in a section dealing with the composition of the union shop committee, the draft submitted by the Company provided that the shop committee was to be composed of "no more than three (3) employees...." Ofria had crossed out "no more than" and had written, "a minimum of." On section 5.12 in the draft,'O Ofria had crossed out various words so that it read: In making temporary transfers, the Company shall determine the classification from which such transfer is to be made and in any case the senior qualified employee will be offered such temporary transfer.1' After the foregoing and a few days after receipt of the June 27 letter and draft from the Company, Ofria met with Strauss in the plant cafeteria. They went over the draft. Regarding section 5.12, Ofria said that the draft was wrong and did not reflect what the parties had agreed to. Ofna reminded Strauss that they had agreed that the senior employee would have the option, in the case of a temporary transfer, to transfer to higher, lower, or equal rated jobs. Ofria had a copy of the union proposal of May 15 where this option was stated.12 At this juncture, McFarlane, a member of the Company's negotiating team was passing by. Ofria called him over. Ofria said to the senior employee would be offered any temporary transfer to a higher rated job. It was the Union's belief and position that, in the current negotiations, the Company and the Union had agreed in May that the senior employee would likewise have the option to transfer to a lower rated job when a temporary transfer to such a job arose. i2 The company acceptance of this proposal has previously been described. LYTRON, INCORPORATED 557 McFarlane, you remember that the senior man was to have the option to transfer to high, low, or equal rated jobs on a temporary transfer. McFarlane said, yes, we did agree to the senior having that option. According to Ofria, Strauss said, okay, there will be no problem. It was understood that Strauss would redraft the contract and submit a complete contract, not just the changes in the old contract, to the Union. Strauss' version of the above incident is that, when Ofria stated his understanding of what had been agreed upon, Strauss said "that wasn't what I thought we had agreed to and that I wanted to talk to Jimmy (McFarlane] and Woody [Curtis] about it because they were involved in the discussion [of 5.12 in the May 10 and 15 negotiations]." Strauss does not assert that in this discussion he told Ofria what he, Strauss, thought had been agreed upon, nor does Strauss- admit or deny that Ofria had called McFarlane into the discussion and that the latter had affirmed Ofria's version of the agreement. According to Strauss, he told Ofria at the end of this post-June 27 discussion that he would get back to him; i.e., he would be in touch with him. The next communication from the Company to the Union on the matter of the contract did not occur until August 1972, when the Company gave the Union a complete contract draft. McFarlane, the general foreman, was not called as a witness by Respondent and neither controverts the union version of what McFarlane said on May 10 or 15 or at this session a few days after June 27; nor does McFarlane corroborate Strauss on any aspect of his testimony. I credit Ofria's version of what occurred in this June discussion, a few days after June 27. Before proceeding further in a chronological description of events, it is appropriate to comment on the principal contention of Respondent's witness, Strauss. As contrasted with the version that I have credited regarding the May 10 and 15, 1972, meetings, Strauss asserts that, when the Union opposed the company proposal on section 5.12(b), the Company have the right to select the employee to be temporarily transferred to a lower rated job, Strauss offered to give the senior employee the right to decline such a transfer. The Union allegedly agreed to this. Strauss contends that he turned to McFarlane and ' Curtis and asked them if they could live with such a qualification and they each said, yes. According to Strauss, he then said, "Okay, you agreed to it and you are going to have to live with it." Thereafter, on May 16 and at succeeding times, when Strauss agreed to the union language, i.e. "Temporary Transfer-modify to provide that seniority employees will have the option of transfers to higher, lower, or equal rated jobs," he asserts that this meant to him no more than that the senior employee had the right to decline such a transfer. 'Among the reasons why I rejected the foregoing version was the fact that under the old or existing contract provision of 5.12(b), the senior employee already had the right to decline such a transfer since it was provided that on temporary transfers to lower rated jobs the junior employee was to be transferred . The right to decline, therefore, which Strauss claims he offered on May 10, would hardly be expected to be regarded by the Union as a major concession. Moreover, Strauss' alleged concession ignored the Union's proposal or demand that the senior employee have the option to transfer to a lower rated job on a temporary transfer so that he might become qualified on other jobs and so be in a better position in the event of a layoff. It also seems unlikely that, after proposing to the Union that the senior employees have the right to decline a transfer to a lower job and the Union's alleged acceptance, Strauss should ask his subordinates, such as McFarlane, whether they could live with Strauss' own proposal. Further, McFarlane and the Company had already been living with the senior employee's contractual right to decline such a transfer for the entire period of the expiring contract. It is much more reasonable to conclude, as Ofria testified, that it was with respect to the union proposal that the senior employee should have the right to transfer temporarily to a lower job or equal job, as well as have the existing admitted right to transfer to a higher job, that Strauss asked McFarlane if he could live with it and McFarlane said yes. I believe that the written language agreed to by Strauss on May 16 in his letter to the employees is more reasonably to be construed as an option to transfer, i.e., to take the transfer or to decline it, rather than as an , option limited to declining. It is also the fact that the parties were familiar with the term "option," including its use in both the old contract and in drafts of the new contract. Thus, section 5.11 of the old contract provided: Senior employees shall have the first option to transfer to a shift of their choice when there are openings in their job classifications on other shifts. This section 5.11 was incorporated verbatim and by mutual agreement in all drafts of the new contract prepared by the Company both in June and in August 1972. The "option" was quite clearly not limited to the right to refuse . Further, the draft of section 5 .12(b) prepared ' by Strauss and submitted to the Union on June 27 contains no mention of the senior employee's right to decline a temporary transfer to a lower job, although Strauss claims that it was this proposal of his that the parties had previously agreed to. Since the June 27 draft of 5.12 was, in 'substance, the original company contract proposal of April 18, 1972, giving to the Company the unqualified right to transfer whomever it wished to lower jobs on a temporary transfer, it is apparent, in my opinion, that Strauss did not believe that in May the parties had agreed that the senior employee was to have the right to decline such a transfer. If the latter had been, as claimed, the May 10 company proposal that had been accepted by the Union, the Company would presumably have placed it in its June 27 draft. As for the reversion to the original April 18 company proposal and the total omission of the agreement that the parties had reached on May 15 and 1'6, this can most reasonably be explained by the fact that, subsequent to the agreement, Strauss found the agreement to be unpalatable and sought to evade it. Without recounting other factors, I also mention the testimony that McFarlane, shortly after June 27, had affirmed that the parties had previously agreed that the senior employee was to have the option to transfer on temporary assignment to a higher , equal, or lower job. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD McFarlane, a member of management, was not called as a witness to controvert this testimony nor was he called to corroborate Strauss in any respect as to important matters in May, June, or thereafter.13 We return now to the chain of events after June 27, when Ofria had pointed out to Strauss that the Company's June 27 draft of section 5.12 of the contract did not conform to the agreement previously reached by the parties. The next event occurred sometime in August 1972, when the Company submitted a complete contract draft to the Union. This draft, in section 5.12(b), contained for the first time what Strauss testified at the hearing had been the agreement of the parties on May 10, 15, and 16. The pertinent part of the section in the August draft read: In the case of a transfer to a lower paying labor grade, the Company will have the right to select the employee to be temporarily transferred, however, a senior employee has the right of refusal. Ofria and Strauss met together in the plant on September 7 and evidently again in, the latter part of September. The principal issue was the above 5.12(b) section. Ofria contended that the draft did not reflect the agreement of the parties that the senior employee was to have the option to take a temporary transfer to a lower, higher, or equal job. Strauss contended that the draft reflected the agreement that the senior man had only the right to refuse the transfer if the Company selected him. There was also some discussion of the R and D provision. This pertained to research and development employees. This was one of the issues that both parties considered to have been settled on May 22 at the meeting in the federal Mediation office. On October 10 the full committee of both parties met together. The Union, through Ofria and Ceccarom, adhered to their contention that the Company had agreed to give the senior man the option to transfer to a higher, lower, or equal job. They endeavored to refresh Strauss' recollection of how he had agreed after he had asked McFarlane if he could live with the proposal and McFarlane had said yes. Strauss adhered to his position. But neither the testimony of Strauss nor of anyone else reflects that McFarlane, who was also present on October 10, as well as at the May meetings, spoke up on October 10 in support of the Strauss version, and, as we have seen, McFarlane did not testify at the instant hearing. The foregoing 5.12(b) matter was the only issue remaining at the end of the October 10 meeting. As Strauss testified, "... we were still apart on 5.12(b) and that was really the only issue after they dropped the R & D thing." A meeting on October 11 found the parties in the same respective positions regarding 5.12(b). The Company proposed going back to 5.12(b) under the old contract wherein the junior employee was to be given any temporary transfer to a lower rated job.14 The Union refused and also rejected outside mediation. Strauss then caucused with the company people and it 13 Speaking of the adverse inference rule, the Court of Appeals for the District of Columbia (International Union, UAW [Grodyne Co] v. N LR.B, 459 F.2d 1329, 1338 (1972)), has stated: The theory behind the rule is that, all other things being equal, a party will of his own volition introduce the strongest evidence available to prove his case. If evidence within the party's control would in fact strengthen his case, he can be expected to introduce it .... was decided not to yield on the matter of 5.12(b). This decision was made although Strauss states that he advised the caucus that "it would probably mean a strike."" The strike by the Union began on October 12. The strike occurred because the Union believed that the Company had reneged on what the Union considered was a clearly established agreement by both parties that the senior man would have the option to transfer to a higher, lower, or equal job when a temporary transfer was offered. The parties met a total of two or three times around the middle of November and early December. The issue and the positions of the parties remained the same. At one of these meetings the Union proposed arbitration of the issue between them. According to Ofria, the Company, through Strauss or Welch or both; refused to arbitrate, saying it would be foolish to do so in view of the company letter of May 16 (in which Strauss agreed to the union proposal that the senior man was to have the option of transfer to higher, lower, or equal jobs). On direct examination by Respon- dent's counsel, Strauss was asked: Q. Did Mr. Welch say anything about a letter that you had written and there would be no point in going to arbitration on account of that letter? A. I can't remember that, whether he did or he didn't .... The strike did not succeed in obtaining its objective, a contract with the 5.12(b) provision that the Union contended had been agreed to by the Company. The strike ended on December 11, 1972, and the employees sought to return to work unconditionally on that date. The Company read a notice to the employees at the time which stated: We understand you are all coming back to work. Unfortunately, we do not have jobs for all at this time. In order to fill the open jobs, we will sit down with the committee and determine through the seniority list who will start work today. For those of you for whom there is no work available, we will notify you as soon as there is an opening .... The Company had hired no new employees during the strike. Strauss testified regarding loss of business during the strike and changes made during the strike in the production process and job alignments.' Some strikers were reinstated on December 11, ' 1972, while others were recalled at various dates thereafter. Not all employees who were put back to work were reinstated to their former jobs and some received lower, rated jobs. Some jobs had been eliminated or reduced in number. Eventually all strikers had been offered reemployment or had notified the Company that they were not returning.15 Before concluding this portion of the Decision, it is appropriate to mention that after May 22, 1972, when both sides had shaken hands and believed that they had agreed on a contract, provisions of the new contract were placed in effect and continued up to and including the date of Conversely, if such evidence is not introduced, it may be inferred that the evidence is unfavorable to the party suppressing it. 14 Strauss testified that neither party actually wanted the former contract provision. 15 One employee in the unit had not gone on strike. Four strikers returned to work prior to December 11. LYTRON, INCORPORATED 559 hearing. For instance, the new wage rates and subsequent cost-of-living increases were made effective after May 22.16 Other provisions were also made effective, such as posting of overtime. With respect to temporary transfers to lower rated jobs during the post-May 22 period, Strauss testified that the Company picked "who was available." In instances of this nature that Strauss recalled, he testified that there were cases "where we didn't pick the junior man. There were cases where we picked the, you know, a senior man, but not the most senior man ..... Ofria testified to instances since May 22, where, on a temporary transfer to a lower job, General Foreman McFarlane, after being reminded of the senior option agreement, offered the transfer to the senior man and thence in descending order of seniority. McFarlane had told Ofria that he had done this. Conclusions Without recapitulating the evidence, it is my opinion that by May 16, 1972, the parties had reached an agreement on section 5.12(b) of the contract as set forth in the Union's written proposal of May 15 and as confirmed by Strauss' letter of May 16. In the context of all the evidence, it is my opinion, that the agreement on that section is shown to be an agreement, in substance, to the following effect: In making temporary transfers, the Company shall determine the classification from which such transfer is to be made, but the senior qualified employee, in the case of a transfer to a higher, lower, or equal labor grade, will be offered the transfer and shall have first option to transfer to such aforementioned labor grade. I am persuaded that the evidence of what transpired at the May 10 and 15 meetings and the union written proposal of May 15, accepted in writing by the Company on May 16, demonstrates that the option of the senior employee to transfer to a higher, lower, or equal job was understood and agreed to as I have set forth the agreement above. The term "option" that was used in the union proposal and agreed to by the Company was a term comprehended by the parties. I note that section 5.11 of the old contract that was incorporated verbatim, without dispute, in the June 27 and August contract drafts prepared by the Company, used the term "option" in the same manner in which I believe the parties had agreed to use the term in section 5.12(b). Thus 5.11 provided: Senior employees shall have first option to transfer to a shift of their choice when there are openings... . On May 22, both parties believed that they had reached agreement on' a complete contract. Subsequently, when the contract drafts prepared by the Company failed to reflect the agreement of the parties of section 5.12(b), the bargaining process was frustrated. While there were some minor problems of phraseology and wording regarding other sections, they were not, in my opinion, major obstacles to the consummation and signing of a contract. Any discussions that subsequently arose regarding sections other than section 5.12(b) were eventually fruitful or resulted in adjustment, so that before the strike section 5.12(b) remained the sole issue in dispute. Both parties were aware that the dispute over 5.12(b) was the cause of the strike. This case does not present the situation of a party that having admitted that it did agree and with reasonable promptness informs the other party at a subsequent session that, upon further study and consideration, it is unable to agree to that provision and states its reasons therefor. Depending on all the facts and circumstances, I do not believe that such a change in position would necessarily equate with bad faith. But the instant case presents the issue of the Company denying that it had agreed to a provision, where, in my opinion, the evidence shows the contrary. Consequently, there is a reneging on an agree- ment-and this, as I view the situation, is not compatible with good-faith bargaining. The natural and forseeable result of such an action by either party, and in this case it is the Company, is the poisoning and frustration of the bargaining process . This is confirmed in the case before us and it was the reneged upon section 5.12(b) agreement that caused the strike. I find a violation of Section 8(a)(1) and (5) of the Act and I find that the strike was an unfair labor practice strike. The strikers, therefore, upon termination of the strike and unconditional application for reinstatement, were entitled to reinstatement to their former jobs . Inasmuch as not all, and, indeed, many of the strikers, were not reinstated to their former jobs, and since Respondent excluded a nonstriker and four earlier returned strikers from competition with the strikers at the end of the strike for such jobs as were available, I find a violation of Section 8(a)(1) and, (3) of the Act by reason of the failure to reinstate strikers to their former jobs. I do not agree with the contention of Respondent in its brief that the nonstriker should be considered "a permanent replacement for a striker." CONCLUSIONS OF LAW Respondent has violated Section 8(aX1) and (5) of the Act by failing and refusing to bargain in good faith with the Union, the collective-bargaining agent. Respondent had violated Section 8(a)(1) and (3) of the Act by failing to reinstate unfair labor practice strikers to their former or equivalent jobs upon the conclusion of the strike and upon unconditional requests for reinstatement. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take affirmative action to remedy the effects of its illegal conduct. The appropriate affirmative action is that Respondent, upon request, shall complete the consummation of a contract with the Union, with the contract embodying the matters heretofore negotiated, resolved, and agreed on by the parties, 'including section 5.12(b). The latter section is to be drafted in terms consistent with the findings in this 16 As Strauss testified, "We thought we had an agreement with the Union and we were, you know, following the contract, the new contract provisions ... . 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Decision regarding the agreement of the parties on section 5.12(b). Since the strike has been found to be an unfair labor practice strike, the strikers, upon their unconditional application to return to work on December 11, 1972, were entitled to reinstatement to their former jobs, displacing, if necessary, any replacements hired during the strike. The evidence is that the strikers, admittedly, were not all reinstated to their former jobs upon application, and, in allocatingjobs, Respondent used a formula that excluded a nonstriking employee and a few earlier returned strikers from competition with the balance of the strikers for the jobs available at the end of the strike and at the time of application for reinstatement. The order therefore will encompass a failure to reinstate unfair labor practice strikers to their jobs at the end of the strike and upon unconditional application for reinstatement and will also encompass a provision for reimbursement for a loss of earnings, if any, that may have been incurred by the strikers by reason of the failure to reinstate to jobs that may have been available. Respondent has introduced evidence in the instant hearing with respect to loss of business and other changes in its operations that, it contends, affected the number and types of jobs available to the returning strikers and also affected the time of the availability of such jobs. Whether or not Respondent has complied with the order in this case to reinstate the strikers to their former jobs, after the strike was ended and the strikers applied for unconditional reinstatement, will be a matter of compliance. Generally speaking, if jobs have diminished during a strike because of legitimate economic reasons, the remaining jobs are to be fairly apportioned among the employees, including the strikers. ORDER 17 Respondent, Lytron, Incorporated, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain in good faith with Local 1596, International Union, United Automobile, Aerospace, and Agricultural Implement Workers of America by reneging on contractual agreements mutually agreed upon during negotiations. (b) Discriminating against employees who are unfair labor practice strikers by failing to reinstate them to their former jobs upon their unconditional application at the end of the strike. (c) In any like or related manner interfering with, restraining, or coercing employees in the exercise of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action to effectuate the policies of the Act: (a) Upon request, bargain in good faith with Local 1596, aforementioned, by completing the consummation of a contract with said union, with the contract embodying the matters heretofore negotiated, resolved, and agreed on by the Respondent and the Union, including section 5.12(b), with the terms and provisions of that section being consistent with the prior agreement of the Respondent and the Union, as found in this Decision. (b) Offer to the employee strikers who applied uncondi- tionally for reinstatement at the end of - the strike on December 11, 1972, reinstatement to their former or substantially equivalent jobs, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered if such jobs were available and if the strikers were denied reinstatement thereto without legitimate legal justification. In the event that the former jobs were, or are, no longer available because of legitimate economic considerations, the jobs that were or are available are to be allocated among all unit employees on a fair and nondiscriminatory basis. (c) Post at its Woburn, Massachusetts, plant, copies of the attached notice marked "Appendix." 18 Copies of said notice on forms provided by the Regional Director, for Region 1, after being signed by Respondent's representa- tive, shall be posted by Respondent 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 to ensure that such notices are not altered, defaced, or, covered by other material. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all records necessary to analyze the matter of the availability of jobs and the loss of earnings, if any, that may be due to the strikers. (e) Notify the Regional Director for Region 1, in writing, within 20 days from the date of this Order, what steps Respondent had taken to comply herewith. 17 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions, and recommended Order herein shall, as provided in Sec. 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. 18 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 read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a trial in which all parties participated and were represented by their attorneys, it has been found that we have violated the National Labor Relations Act in certain respects. We therefore advise you that: WE WILL NOT refuse to bargain in good faith with Local 1596, United Automobile, Aerospace, and Agricultural Implement Workers of America, by reneging on contractual agreements that have been mutually agreed on during contract negotiations. WE WILL, upon request, bargain in good faith with Local 1596 by completing the consummation of a contract with said union, with the contract embodying the matters previously negotiated, resolved, and agreed LYTRON, INCORPORATED on by the Company and Local 1596, including section 5.12(b), as found in the Decision rendered after the above trial of the issue. WE recognize our obligation to offer reinstatement to the strikers who applied for reinstatement at the end of the strike on December 11, 1972, and we will fulfill that obligation in accordance with the Order in the Decision of this case and if any earnings of strikers have been lost by reason of our failure to perform our aforesaid obligation to reinstate, we will make whole the strikers for the lost earnings. Dated By 561 (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 concern- ing this notice or compliance with its provisions may be directed to the Board's Office, Seventh Floor-Bulfinch Building, 15 New Chardon Street, Boston, Massachusetts 02114, Telephone 617-223-3300. LYTRON, INCORPORATED (Employer)