Sioux Falls Stock Yards Co.

64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sioux Falls Stock Yards Company and Local 304, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO. Case 18-CA-3499 January 3, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On May 31, 1973, Administrative Law Judge Phil Saunders issued the attached Decision in this proceeding. Thereafter, the Respondent and the General Counsel filed exceptions, the Union filed cross-exceptions, and all three parties filed briefs. 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,' and conclusions 2 of the Administrative Law Judge, except as inconsistent with the Order below.3 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the Respondent, Sioux Falls Stock Yards Company, Sioux Falls, South Dakota , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith concerning rates of pay , wages, hours, and other terms and conditions of employment with Local 304, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive repre- sentative of its employees in the following appropri- ate unit: All hourly paid operational employees at the Sioux Falls, South Dakota, plant, including regular part-time employees, but excluding office 1 Chairman Miller concurs with his colleagues that Respondent violated Sec 8(a)(5) and (1) of the Act when it unilaterally instituted a general wage increase and other conditions of employment after completion of the bargaining session on February 2, 1973. In doing so, however, he finds it unnecessary to reech or pass, as they do, on the issue of whether Respondent, in taking such unilateral action, was furthering an overall pattern of bad-faith bargaining. Rather, the Chairman would premise the bargaining violation solely on the ground that no impasse in bargaining had been reached as of that date on the wage issue , and thus, under Baord precedent, the effecting of a unilateral increase is an independent violation of Sec 8(a)(5). The credited evidence establishes that there was some movement from prior fixed position on the part of the parties at the February 2 negotiating situation, and, at that time the Respondent expressed a willingness further to increase its economic offer if the Union clerical and all other employees, watchmen, guards, and supervisors as defined in the Act. (b) Discouraging membership in Local 304, Amal- gamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor organization, by refusing to reinstate or otherwise discriminating against employees with regard to their hire, tenure, or any other terms or conditions of employment. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of their rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively in good faith with the above-named labor organization as the exclusive representative of all its employees in the aforesaid appropriate unit, with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Offer to each of the employees named in the Appendix attached hereto immediate and full rein- statement to his former job or, if that job no longer exists, to a substantially equivalent position , without prejudice to his seniority or other rights and privileges, dismissing, if necessary, replacement employees hired after the start of the strike. (c) Make whole all such named employees for any loss of earnings they may have suffered from the date of their unconditional offer to return to work to the date the Respondent unconditionally offers or offered them reinstatement, as set forth in The Remedy section of the Administrative Law Judge's Decision. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze and determine the amounts of backpay due under the terms of this Order. (e) Post at its plant copies of the attached notice marked "Appendix."4 Copies of said notice, on forms provided by the Regional Director for Region would modify certain of its proposals . In light of those facts, and inasmuch as the Respondent did substantially improve upon its economic package in subsequent bargaining, the Chairman concludes, and finds, that there was no impasse in bargaining at the time Respondent made its unilateral changes, and, therefore, violated Sec . 8(a)(5) and ( 1) of the Act 2 We adopt the conclusions of law of the Administrative Law Judge in the section of his Decision so entitled with the deletion of the clause in paragraph 4 thereof, "and such other employees as may hereafter become members of the Union," 3 Because the recommended Order is not entirely appropriate to remedy the unfair labor practices found, we do not adopt it 4 In the event that this 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 208 NLRB No. 4 SIOUX FALLS STOCK YARDS CO. 18, after being duly signed by Respondent's repre- sentative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 18, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. 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 WE WILL NOT discourage membership in Local 304, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, or any other labor organization, by refusing to reinstate or otherwise discriminating against employees with regard to their hire, tenure, or any other terms or conditions of employment. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, including the Union herein, to bargain collectively through a bargaining agent chosen by our employees, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any such activities. WE WILL bargain collectively, upon request, with Local 304, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO, as the exclusive representative of all the employ- ees in the bargaining unit described in the Board's Order with respect to rates of pay, wages, hours, and all other terms and conditions of employ- ment, and, if an agreement is reached, embody it in a signed contract. WE WILL offer immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges, to all our employees who participated in the strike, as named below, and WE WILL make them whole for any loss of pay they may have suffered, in accordance with the provisions in the Board's Order. Ahrendt, Robert Anderson, Arnold M. Baker, Jerry Barnes, Carroll Bernard, Charles Berry, Earl Bloomhall, Donald Buss, Gleen Carsrud, Adrian Coulter, Tracy DeWitte, Rene Eitreim, Lloyd Floren, Roland Gallagher, James Groos, Leo Gunvaldson, Eugene Gustafson, Norman Harriman, Earl Hanson, David Hotzler, ]Kenneth Kimball, Wallace Kreber, Paul Lease, Vinson Lee, Ronald Loewan, John Loftus, Richard Meyer, Gerald Pritchard, Dale Reinke, Thomas Robinson, Arthur Rolfson, Orvid Rose, Willard Roshiem, Harold Stevens, Valmar Styke, Arthur Tronson, Arnold Tverberg, Darrell Wagner, Case Wallenberg, Wayne SIOUX FALLS STOCK YARDS COMPANY (Employer) 65 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 compli- ance with its provisions may be directed to the Board's Office, 316 Federal Building, 110 South Fourth Street, Minneapolis, Minnesota 55401, Tele- phone 612-725-2611. DECISION STATEMENT OF THE CASE PHIL SAUNDERS, Administrative Judge : Based on a charge filed on March 22, 1972, and an amended charge filed on May 31, 1972,1 by Local 304, Amalgamated Meat Cutters and Butcher Workmen of North America, AFL-CIO, herein the Union, a complaint against Sioux Falls Stock Yards Company, herein the Company or Respondent, was issued on December 15 alleging viola- tions of Section 8(a)(1),(3), and (5) of the National Labor Relations Act, as amended. Respondent filed an answer to the complaint denying it had engaged in the alleged unfair I All dates are 1972 unless specifically stated otherwise. 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practices. A hearing in this proceeding was held before me, and all the parties filed bnefs.2 Upon the entire record in this case, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT The Company is a South Dakota corporation engaged at Sioux Falls in the business of receiving , feeding, and keeping livestock, which livestock is received from various points in the States of South Dakota , Minnesota, Iowa, and from other States. Annually Respondent receives revenues in excess of $500,000 for the furnishing of the above described services . Annually Respondent purchases in excess of $50,000 worth of feeds and other goods and materials from points outside the State of South Dakota and which are shipped to Respondent's facilities at Sioux Falls, South Dakota, for use in Respondent's business. Respondent is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES The complaint alleges that on or about February 3 the Respondent unilaterally made changes affecting the employees in a unit of operational employees by increasing wages, freezing into the wage structure a cost of living allowance from the expired contract, and by increasing the maximum duration of weekly sickness and accident benefits from 13 to 15 weeks. The complaint states that the unit employees of Respondent went on strike on Novem- ber 22, 1971, and alleges that the above unilateral acts of Respondent were implemented when an impasse in collective-bargaining negotiations with the Union did not exist and which prolonged and aggravated the strike, and thereby converted the strike to an unfair labor practice strike. The complaint further alleges that on March 21 the employees made an unconditional offer to return to work and that the Respondent failed to reinstate the employees to their former positions of employment. At the hearing it was stipulated that I1 of the striking employees were offered employment, 2 in April and 9 in January 1973. Respondent answered the complaint contending that an impasse existed at the time it made the unilateral changes noted above. The Respondent is one of several stockyard companies owned by United Stock Yards Corporation and itself is a wholly owned subsidiary of Canal Randolph Corporation. The Union, as successor to Local 418, is and has been the exclusive bargaining representative of a unit of employees of the Company, and the Respondent and the Union were parties to a collective-bargaining contract effective No- vember 1, 1968, to October 31, 1971. The terms of this 1968-71 contract were negotiated jointly in St. Paul, Minnesota, between several stockyards, including the Sioux Falls and the Sioux City companies, and the Unions representing their respective employees. Ray Rodeen, vice president of Canal Randolph Corporation, was the chief spokesman for the stockyards companies in these negotia- tions, and Henry Giannini, international representative, was spokesman for the Amalgamated Meat Cutters Local Unions. In July 1971, Francis McDonald, president of Local 304, notified Respondent of the Union's desire to terminate the above-mentioned contract, and Respondent, by its presi- dent, Kieffer Lehman, replied on July 22, 1971, that the Company was available to meet with the Union. On October 28, 1971, the Union and Respondent executed a contract extension agreement which, by its terms, would keep the contract in force until either party gave the other 48 hours, notice to terminate the extension agreement. The Union, on November 19, 1971, served Respondent with notice of its intention to terminate the extension agreement and at midnight, November 21, 1971, the Union struck Respondent's Sioux Falls stockyards, and all 40 employees in the bargaining unit, named in the Appendix attached hereto, honored the strike.3 Thereafter the parties met for the purpose of collective bargaining on December 1, 6, 7, 20, and 22, 1971; and on January 27, February 2, 9,16, and 28, March 8 and 10, and April 4 and 5, 1972. Respondent implemented the changes mentioned above on February 3, and also at this time commenced hiring replacement employees. The first in the series of negotiating meetings com- menced on December 1, 1971, as aforestated. Representing the Union at this meeting were Union President Francis McDonald and Assistant Business Agent Rene DeWitte. Representing the Company were Company President and General Manager Kieffer Lehman, Company Attorney John Burke and Assistant Superintendent Walt Nelson. McDonald presented the Company with two lists of contract demands. One list entitled, "Master Agreement Contract Demands for Stock Yard Workers Compiled by the Committee with a Representative From Each of the Stockyards Units on August 19, 1971." This document contained some 26 items. The second list given to the Company was entitled, "Local 304 Contract Demands for the Sioux Falls Stockyards Company Employees for 1971," and it contained some 37 demands.4 The parties spent considerable time at this first meeting comparing the two lists in order to determine what demands the Union was actually making, and later the Company had to compile the demands into one list. The negotiating meeting on December 6, 1971, was initiated by the Union, and at this meeting the Company presented the list of combined demands it had compiled from the two union lists.5 Union Business Agent Francis Krier was acting spokesman for the Union in the absence 2 The transcript in this proceeding is hereby corrected in accordance considered an employee; therefore this case concerns the other 39 with the motions filed by the General Counsel employees 3 Shortly thereafter one of these employees, Darrell Evink, resigned from 4 Resp. Exhs. 11 and 12 the Union and notified the Employer that he no longer wished to be s G C. Exh. 4 SIOUX FALLS STOCK YARDS CO. 67 of Francis McDonald. The Union then went over their demands, and following this discussion the Company replied. Among the 37 demands, the Union was asking for a master agreement, a 3-year contract with wage increases of 70 cents, 50 cents, and 50 cents, an increase in the cost of living allowance, a review of the pension plan, an increase in insurance benefits, increase in sick leave, premium pay increase, and a change in vacations and holidays. For the most part all demands were discussed and including such items as time and a half for Saturday work, time and a half for Sunday work, and tools for carpenters. At this meeting there were no settlements reached of any kind. At the meeting on December 7, 1971, the Company made the following proposals: a 3-year contract effective on signing, carpenter tools would be provided, improve- ment in hospitalization plan by providing an average cost of a semiprivate room towards the cost of a private room, employment of part-time people, proposed some language relative to layoff time as pertaining to vacation time, and asked that a doctor's certificate be required for proof of illness for sick leave purposes. The Company made no wage proposals at this meeting. Frances Krier testified that Company Spokesman Kieffer Lehman mentioned several items he did not want in the new contract-a cost of living clause, and the right to hire part-time or extra men but who would not be covered by the contract .6 The next meeting was held on December 11, 1971, and at this negotiating session the Company made its first economic proposal of an 8-cent increase the first year, 7 cents the second year, and 6 cents the third year. The Company again offered to furnish necessary carpenter tools and to provide the semipnvate room rate towards the cost of a private room in the hospital and surgical plan, offered into the base wage rate provided that all future reference to cost of living be eliminated from the new contract, and again offered a provision for extra or part- time men. Spokesman for the Umon testified that they considered several of the items proposed by the Company as "take away items" which would have reduced existing employee benefits and including the proposal for contract language permitting the use of extra men to do bargaining unit work at low wage rates and not covered by the contract, and the proposal to eliminate all layoff time from vacation eligibility.? The Union made no counterpropos- als, and Francis McDonald said that the Respondent's proposals did not "whet their appetite." It appears that Lehman did not discuss any of the other items in the Union's original proposal. At the next meeting on December 20, 1971, the Union dropped its request for a master agreement for all the stockyards (item I on the combined list),8 reduced its wage demands to 35 cents the first year, 30 cents the second year and 30 cents the third year on a 3-year contract effective November 1, 1971, sought a pension improvement by doubling the present contribution to the pension plan from 10 cents and hour to 20 cents an hour-raising the benefit level from $3.33 per month per year of service to $6.66 per month per year of service, and also sought an increase in the night differential pay. After a caucus the Company increased its wage offer to 10 cents the first year, 9 cents the second year, and 8 cents the third year on a 3-year contract effective upon signing, and agreed to the Union's request to establish a safety committee of two company representatives and two union representatives to meet quarterly. The Company then reiterated its position relative to part-time people and relative to cost of living by removing the cost of living clause and freezing the present 10-cent-per-hour cost of living increase into the hourly rate. Lehman further advised the Union that the Company wanted a provision for removing the word "layoff" from the contract's vacation provisions so the layoff hours would not count towards vacation time, the Company still wanted the right to require a doctor's certificate as proof for sick leaves, reiterated its position on carpenter tools, and the Company again indicated it would improve the hospitalization program by making the average room rate applicable towards the cost of a private room with a new carrier. Lehman testified that the Union refused to discuss the Company's request for extra or part-time men and that he then admonished the Union for not negotiating seriously. Lehman said the Union did bring up pensions, but only to the extent of saying that pensions were important to them, and that the Company could possibly improve benefits without increasing cost. Union witnesses testified that at the close of this meeting the Union reduced its request for an additional pension contribution to a 10- cent increase. At the meeting on December 22, 1971, the Union told Lehman that they had been in touch with a union representative in Chicago, and that this individual (Hook) had some information relative to funding backpay liability should the Company improve its pension plan, and that Hook wanted to meet with the Respondent and other stockyard companies to discuss this matter. Lehman replied he was not interested in other stockyards, but that the Union should have Hook write him a letter if he had any information to give. According to Lehman he never heard from Hook about this matter. Lehman said that at the conclusion of this meeting he told the Union that it had been a waste of time, that the Union was not being serious, and that he did not care to meet again until the Umon was ready to move into "meaningful negotiations." The next meeting was arranged through the Federal Mediation Service and was held on January 27. The mediator asked the parties to state their positions and Francis Krier, speaking for the Union, outlined II key issues of prime importance to them: a 3-year contract effective November 1, 1971, a wage increase of 35, 30, and 30 cents, improvement in pension program from $3.33 per year to $6.66 per year, an additional holiday, an increase in night differential of 2 cents an hour, an improvement in hospitalization, working conditions as outlined in their demands 20 and 27, premium time for hours worked on a The expired contract contained a cost of living clause, but there were "ridiculed by the Union" and received little if any considerations. no provisions permitting the use of part-time or extra men. 8 When the Union dropped this demand the Company asked whether the r The Company's proposal as of this date is also reflected in an enclosure Union was ending the strike, to which McDonald replied the Union was on to a letter Lehman sent to all the striking employees on December 14, 1971. strike for an equitable agreement G.C Exh 5 In this letter to all sinkers, Lehman stated that his offer was 68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Saturday, double time for time worked on Sunday, and to freeze in the benefits of the present contract with improvements in the cost of living. The Union further asked that the length and the amount of sick leave be increased by the Company. Lehman then summarized the Company's position and indicated that the Union had not changed its position since the meeting on December 20, 1971. Lehman further testified that on this occasion he also told the Union that the Respondent's supervisors were working 80 to 100 hours a week, but he did not expect the supervisors could continue working such long hours, and that the Company would either have to get their employees back or hire permanent replacements. After the parties separated and went back in, the Company then replied to the 11 issues outlined by the Union at the outset of this meeting. On duration of agreement, the Company reiterat- ed its proposal that the agreement be effective on signing, and not on November 1, 1971, as proposed by the Union. On rates of pay, the Company stayed on 10-, 9-, and 8-cent increases for each year of a 3-year contract. Regarding pensions, the Company told the Union that they were not interested in doubling their cost on pensions, but would be willing to consider an improvement on pensions costs. Lehman said that the Company was paying 10 cents an hour on pensions and advised that they would be willing to consider an increase of 5 cents per hour. The Company told the Union they were not willing to increase their costs on vacations and holiday pay and were not willing to change their proposal relative to hospitalization, but the Company continued to propose to give the semiprivate room rate towards the cost of a private room. With regard to premium pay on Saturday and Sunday which the Union wanted-the Company told the Union there would be no premium pay on either of these days due to the nature of the Company's business, that they were a service organiza- tion and they were not willing to pay premium pay on weekends because the bulk of their business was on Saturday and Sunday. With regard to the Union's original proposal of items 20 and 27, the Respondent said that these two items were "management rights" and the Company would not make any changes whatsoever. On cost of living the Company again indicated they were willing to freeze past increases in cost of living under the expired contract into the hourly rate, but that Respondent wanted to take out all the language in the contract relating to the cost of living increases. With regard to the duration 9 In the expired contract the provisions for sickness and accident leave was a 13-week duration effective the first day in the case of an accident and on the 8th day in case of sickness, at a payment of $80 per week 10 Prior to the negotiating meeting of February 2, union representatives learned that a contract settlement had been reached in late January 1971, at the Stockyards Company in Sioux City, Iowa, between Sioux City Stockyards Co. and Amalgamated Meat Cutters Local P-176, the main terms of which included- a wage increase of 12 cents for the first year, 13 cents the second year, and 13 cents the third year of a 3-year contract, freezing into the late a 10-cent cost of living increase granted under the previous contract , payment of an additional 5-cent-per-hour contribution into the pension plan, 2 weeks increased sick leave benefits from $80 per week for 13 weeks to $80 per week for 15 weeks, and a minor improvement in funeral leave provisions. The settlement did not include any right of management to use part-time or extra men to perform unit work The basic terms of the Sioux City settlement were conveyed to the Sioux Falls employees at a union meeting of January 30. The Charging Party points out that in view of the corporate relationship between the yards in Sioux City of weekly sickness or accident benefits-the Company said they were not willing to make any change in the sick leave program .9 The Company also advised the Union that part- time or extra people were extremely important to them and to this date the Union was not willing to discuss this item. Lehman also told the Union that the Company was not willing to change the night premium pay. The next meeting was held on February 2 and was arranged by the Federal mediator.10 At the outset of this meeting Lehman said that his supervisors were working 80 to 100 hours a week, and that he had to return his operations to normal by getting the strikers back or by hiring replacements.'[ In their opening remarks Krier restated the Union's position relative to the II items it had insisted upon at the meeting of January 27 and said that if an agreement could be reached in these areas, the remainder of the union demands would be dropped. After separations and meeting with the Federal mediator, the parties reconvened and the Company replied to the Union's 11 key items. Lehman testified he told the Union that he was not willing to accept a 3-year contract effective November 1, 1971, thru October 31, 1974, but wanted a contract effective on the date of signing; that the Company was not willing to move on their money offer of 10-9-8; t2 again stated the Company was willing to freeze into the wage structure the present cost of living allowance under the expired contract at 10 cents an hour, but wanted to remove the language from the old contract relative to a cost of living increase ; with regard to the hospitalization, he indicated the Company was willing to continue the proposal made at prior meetings by allowing the average cost of a semiprivate room rate towards the cost of a private room rate and would have a new carrier; as to pensions, Lehman said he reiterated that the Company was willing to consider a pension increase of 5 cents per hour to raise the contribution of the Company to 15 cents per hour; he told the Union they were not willing to make any change in the holiday and that the Company was not willing to make any change in vacations. Lehman stated that he did tell the Union he was willing to improve the hospitalization or sick leave program by adding 2 addition- al weeks with a maximum amount at the rate in the expired contract, going from 13 weeks at $80 per week to 15 weeks at $80 per week; the Company said they were not willing to consider premium time for Saturday or double time for Sunday as such, and testified he also told the Union that and Sioux Falls, the previous bargaining history, and the fact that the employees at Sioux Falls in the past received at least as favorable economic conditions as the employees of Sioux City, the Sioux Falls employees and the union negotiating committee reasonably expected the Respondent to offer at least what was offered at Sioux City i i Other than Lehman's testimony there is no other evidence whatsoever bearing on the working status 'of the supervisors Up to this time the Respondent had hired no replacements , but employees of the various commission firms at the stockyards helped out with the work of the strikers from the beginning of the strike, November 22, 1971 , to the middle or end of February 1972, in accordance with arrangements and work schedules set up for that purpose, and for which the Respondent paid approximately $60,000 in yardage fees to the commission firms 12 The Union produced credited testimony through several of its witnesses to the effect that when Lehman mentioned he was continuing his previous offer on wages, 10, 9, and 8, he also said that the Company "was movable" and had "more to offer." but depending on what the Union did in other areas SIOUX FALLS STOCK YARDS CO. under no circumstances was the Company willing to give any of their management rights as the Union was requesting under their items 20 and 27; and that the Company was not willing to give any increase in night differential. There is a conflict of testimony as to whether or not the Company modified its proposal at the meeting concerning part-time employees by offering to restrict the number of part-time employees to 15. Lehman remem- bered McDonald saying that it was extremely important that they have premium time or that they have improve- ment as far as holidays were concerned, and that the Union would not be willing to sign any contract which did not have any improvements in holidays, and in vacations. He further testified that McDonald was insisting on concessions in management rights, as aforestated, and as to this matter he replied that "hell would freeze over" before the Company would give any on management rights. After another caucus Krier responded for the Union and testified he told the representatives for the Company that the Union was continuing its present position on wages "at this time" (35, 30, and 30 cents on a 3-year contract) since they were confused by the company wage offer and wanted Lehman to be specific because the Company had said they were movable on this matter, and testified that a company representative then told them the Respondent was offering 10, 9, and 8 cents on wages because it did not know where the Union stood in other areas. Krier also told the Company that although the Union wanted a 10- cent-per-hour additional contribution to the pension fund, the Union would accept 5 cents in 1972 and 5 cents in 1973. Krier further stated that the Union desired to continue the cost of living language in the contract, but they would be willing to establish some limits, and additionally he stated that the Union was dropping its demand for 3-week vacation after 8 years of service. Lehman said that by his observations the Union did not appear at all flexible or interested in making any agreement, and especially on the item he considered extremely important-part-time help-and when specifi- cally asked as to his state of mind relative to the possibility of an agreement, Lehman testified, "I felt that any attempt to get an agreement that day was fruitless and that we were at a complete standoff as far as the issues before us at that time were concerned." Lehman testified that during the latter part of this meeting on February 2, he advised the 13 The Union contends, and there is credited evidence to this effect, that Lehman left the meeting before they could respond However, under the circumstances here the Union cannot be held to have waived its rights or to have acquiesced in Respondent's conduct. In this area, as in all others involving the rights of employees and an alleged waiver by their bargaining agent, a waiver must be knowingly and consciously entered into and be clearly intended 14 In a letter dated February 3, addressed to DeWitte at the union offices and received there on February 4, Lehman confirmed the unilateral increases made effective February 3, with the exception that he did not include in the latter the institution of the additional 5-cent-per-hour pension contribution of which he had supposedly informed DeWitte 15 On February 3, Lehman also sent a letter to the striking employees lowest in seniority notifying them that they had been replaced, that they were no longer employees of the Company, and that their hospitalization and life insurance would only continue until the prepayment period and would then be terminated. On February 10, Lehman sent another letter to the strikers-this letter was dated February 9 and addressed to the negotiating committee. This letter, according to Lehman, was to inform the 69 Union that the Company was considering the implementa- tion of parts of the Company's proposal, and that the Union made no response.13 On the morning of February 3, Lehman had a conversa- tion with striking employee and Assistant Business Agent Rene DeWitte while DeWitte was picketing at the stockyards, and told him that the Company was planning to hire strike replacements, that they were going to put into effect the 10-cent-an-hour increase in wages, that the Company planned to freeze into the permanent wage structure the 10-cent cost of living amounts which had accrued under the previous contract, and that the Compa- ny was also going to improve the sick leave program by adding 2 weeks of sick leave to the program, making it 15 weeks.14 On February 3, the Company also began hiring replacements and hired 13 replacements that day, and in the course of the next several days the Company hired many additional replacements at the lowest classification of apprentice yardman, and at the rate paid this particular classification in the expired contract-plus 10-cent-an- hour increase-plus 10-cent cost of living allowance. Lehman said that the first replacement employee hired replaced the most junior employee.15 On February 3, DeWitte communicated the Lehman conversation with other strikers relating what Lehman had said and also relating what had transpired at negotiations on the previous day. The Union produced testimony through DeWitte and other strikers to the effect that what the Company was doing at this point in time was not right or legal, and several stated this was all the more reason to keep on striking. DeWitte also communicated the Lehman conversation to Business Agent Krier, and Krier then had phone conversations with other strikers that evening in which he explained the situation as he saw it-stating that the Company was committing unfair labor practices.16 On February 4, other strikers came in or contacted DeWitte at the union office to ascertain what was taking place, and, in essence, DeWitte then explained to them the circumstance and situation as he saw it. Gerald Meyer testified that on February 4 strikers "were upset about the thing that there was more to offer and he had hired those scabs at 10 cents an hour more than we are getting," and that Meyer told his fellow strikers "as long as this thing continues as it is, I'll picket till hell freezes over." On Sunday, February 6, a union meeting of the striking employees of their rights and to clear up any "misunderstanding" created by the letter of February 3 In this letter dated February 9, Lehman stated, inter alia, "In the event of an unqualified offer by any or all of the strikers to return to work, they will be returned to their jobs if they have not been replaced." The Charging Party points out that by this time the Company had already hired 38 replacements, and argues that this letter of February 9 could not possibly clear up any previous "misunderstandings." 16 Striker Gerald Meyer testified that he related to other strikers on the picket line his conversation with DeWitte and stated that it seemed to him the Company was trying to "break the Union " Striker Paul Kreber testified that on February 3, when he found out from DeWitte that the Company instituted increases and hired replacements , he was "real mad. I give the best years of my life to the Company and then they treat us like dirt." Striker Wallenburg testified when he found out that Lehman had put certain offers into effect without going through the Union, it made him "damn mad." That evening DeWitte also had a conversation with Carroll Barnes and told him that it was unfair bargaining for the Company to institute offers without agreement of the Union when on the previous day Lehman stated there was more to offer 70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees was held. It appears that the meeting was attended by practically all of the strikers, and Francis McDonald conducted the meeting and made a full report of what had transpired between the parties, as he saw it. The Union produced testimony through several of their witnesses to the effect that the strikers were visibly upset, frustrated, and angry with the actions of the Company. There was no talk of ending the strike and going back to work, and striker Wallenburg said he would "walk the picket line until his feet wore off to his knees and give them an -option for another five years." Several testified that there was a noticeable difference in the picketing and conduct of the strikers after the meeting of February 6 compared to before the meeting. At the next bargaining meeting on February 9, represent- ing the Union in addition to the regular committee was Attorney Robert Sugarman. Representing the Company at this meeting were Lehman and Lamb. Federal Mediator Zuiker also was present. Following a discussion of the issues, Attorney Sugarman requested that the Company supply certain information relative to the Company's strike replacements, and Sugarman then began questioning Lehman concerning his part-time help proposal. The Union also inquired if the Company had any offer on wages, and Lehman replied that the Company had already indicated 10 cents, 9 cents, and 8 cents on a 3-year contract, but said the Company was movable if they could see a package and "some movement" on the part of the Union. Francis McDonald then asked Lehman what he could do about pensions, stating that the Union was very concerned about pensions because of the age of the group. Lehman replied that this was an economic item and if the Union would rather have pensions than money or wages-this was "O.K." with him, and that he had "not made a final offer." Lehman's testimony on cross-examina- tion in these respects were as follows: Q. Was there discussion at the meeting on Februar- y 9th between the union and yourself that the union said that pensions were very important? A. Yes; the union indicated this to me. Q. And you said, did you not, that you have more money to spend and you would like the union to tell you where they wanted you to spend the money? A. This is on the meeting of the 9th? Q. Yes, sir. A. Yes, I did. Q. And then you said to the Union finally, "Do you want me to prepare a final offer?" A. Yes, I did say that, and Francis said that might be a good idea, but nothing further was said on that. Q. But you did not prepare a final offer at that meeting? A. Not at that particular meeting, no. Lehman admitted that on February 9 he was flexible on economic items and stated, "Yes, after we began to see a willingness on the= part of the Union to discuss our 17 During these later meetings the Company was also presenting its pension proposals, and at times mdicatmg some modifications . The Union again told the Company that on a matter as important as pensions it wanted proposal relative to part-time employees, we felt that we had some flexibility... . At the negotiating session on February 16, the parties continued to discuss the part-time employee issue and after hearing McDonald's objections the Company offered to limit its part-time employees to 25 hours per week. At this meeting the Company also offered 150 hours to layoff time- to count toward vacation eligibility, and increased its wage offer to 12 cents, 13 cents, and 13 cents. At the meeting of February 28, the Company presented the Union with the new insurance program it received from the New York Life Insurance Company. The Union then reiterated several of its prior demands, but agreed to a 3- year contract effective on the date of signing-before the Union wanted specific dates-lowered its wage demands to 20, 15, and 10 cents, respectively, and the Union also reduced the scope of its overtime proposals. Lehman then mentioned the numerous items that the Company was still refusing and on which there was no agreement. The Company made no movement on its wage offer of 12, 13, and 13. The meetings of March 8 and 10 were devoted mostly to a discussion on the subject of health insurance, and as a result of these two meetings, some correspondence and telephone conversations, and some clarifications at the subsequent meetings on April 4 and 5, this matter was fairly well resolved. Also, at the meetings of March 8 and March 10, and in a letter dated March 13, the Company further modified its proposal regarding part-time employ- ees. By letter of March 16, the Company modified its wage proposal to 15 cents, 13 cents, and 10 cents, respectively, on a 3-year contract provided the Union would accept the Company's new position on pensions.17 On March 21, the Union, on behalf of all the strikers, made an unconditional offer to return to work. The Company replied that they still considered their employees as economic strikers, and would be taken back as vacancies opened up. The Respondent contends that an impasse in bargaining existed on all economic issues on or before February 2, and in its brief presents the following argument: "An impasse existed because the Union had taken an initially hard bargaining position, demanding large increases in econom- ic issues which would clearly entail great cost to the Company. The Union then, over the course of the next eight bargaining sessions, made insubstantial concessions prior to and up to the'time of impasse. The Union faced an equally determined Company that would allow its cost to go only so far. After the Company's proposal of January 27, it made little change in its position." The Respondent further states that the "Union's concessions over the two month period of negotiations were insubstantial because they were extremely costly when they were presented, and they were extremely costly on February 2, 1972. It is readily apparent that the Company considered the Union's proposal astronomical. On February 2, 1972, there was still a wide gulf between the Company's position and the Union's position. The Union's position on February 2, to negotiate all the aspects and all the details if the Company insisted on a new plan, and asked the Company for information and support data concerning its pension proposal SIOUX FALLS STOCK YARDS CO. 1972, also appears excessive in view, of the Sioux City settlement which the Union so highly praises." The Company also views its position in light of the background leading up to the negotiations, and points to the fact that preparations for negotiations started in the international headquarters in early 1971, but it was not until December 1, 1971, when the local first let the Company know about its 36 or 37 demands. The Respondent further notes that up to the first meeting the Union made no response to repeated Company requests for negotiations except for giving a last minute direction to "see Mr. Giannini" of the International, and that the Union commenced its strike on November 21, 1971, before any negotiations had been attempted. The Respondent argues that the Company effectuated its wages increases on February 3, as aforestated, to aid in hiring replacements and because of the fact that the John Morrell packing plant, which is adjacent to the Company, was paying a higher starting rate than the Respondent, and that the wage rates for union labor in Sioux Falls was also higher than what the Company was paying at the time of its decision to hire replacements. The Respondent further submits that events following February 3 have no rele- vance to the issue whether there was an impasse in bargaining on February 2, and the fact that the Company continued to meet with the Union on February 9 and thereafter merely reveals that the Company recognized it had a continuing obligation to bargain. The general criteria for determining impasse is set forth in American Federation of Television and Radio Artists, AFL-CIO, 163 NLRB 475, 478 enfd. 395 F.2d 622 (C.A.D.C., 1968), where the Board held: An employer violates his duty to bargain if, when negotiations are sought or are in progress he unilateral- ly institutes changes in existing terms and conditions of employment. On the other hand, after bargaining to an impasse, that is, after good-faith negotiations have exhausted the prospects of concluding an agreement, an employer does not violate the Act by making unilateral changes that are reasonably comprehended within his pre-impasse proposals. Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of negotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of negotiations are all relevant factors to be considered in deciding whether an impasse in bargaining exists. [Footnotes omitted.] In Mechanical Contractors Association of Newburgh, 202 NLRB 1, 3, the Board, inter alia, stated:" The term impasse implies that collective bargaining has failed to produce agreement. It cannot be said that a failure to agree at what we view as the primary stage of a bilevel bargaining procedure amounts to impasse. Until the collective-bar- gaining process has been exhausted, no impasse can occur." This record shows that the first two meetings in is Prior to February 3 there had been but eight negotiating meetings between the parties, and only the meeting of February 2 lasted as long as 4 71 December 1971 were merely exploratory sessions and were concerned primarily with consolidating and explaining the two lists and separating the numerous overlapping de- mands of the Union. In the next two meetings the Company made their initial proposals covering five or six items, as aforestated. At this time the Union was seeking a wage increase of 70 cents the first year, and 50 cents for the second and third year, sought to increase night premiums 15 cents an hour, sought to increase the Company's contributions into the pension plan, was asking for an extra holiday and additional vacations, and wanted double time pay for Sunday work and time-and-a-half pay for Saturday work. On December 20, both parties modified their respective positions. The Company increased its wage proposal from 8, 7, and 6 cents to 10, 9, and 8 cents, agreed to the Union's request for a safety committee, and then reiterated its other proposals made at the previous meeting. At this fifth meeting the Union reduced its wage proposal to 35, 30, and 30 cents on a 3-year contract, reduced its demands for a pension contribution increase from 15 cents an hour to 10 cents an hour, and reduced its demand for an increase in night differential from 25 cents to 14 cents. The short meeting on December 22, 1971, called by the Union, concerned the possibility of getting additional information on pension plans. At the meeting called on the request of the Federal Mediator and Conciliation Service on January 27, the Company reiterated its proposals of December 11, 1971, and then Lehman mentioned several items or areas in which the Company was not willing to grant any change. However, at this meeting the Union made a significant move in the negotiation by reducing its original 36 or 37 demands to I 1 key demands. At this session the Company advised the Union of its future intention to hire replace- ments in order to reduce the workload on its supervisory staff, and it appears that the Company tendered a proposal to increase its pension cost 5 cents an hour. The Federal mediator scheduled another meeting for February 2. At the outset the Union again listed its 11 key issues, and indicated that if solutions were found in these areas the remainder of its demands would be dropped. In essence, the Company then repeated its prior proposals, but for the first time offered an additional 2 weeks, sick leave. The Union countered by reducing its pension demand from a request for an additional 10 cents per hour effective November 1, 1971, to 5 cents in 1972 and 5 cents in 1973; reduced its cost of living demand by stating it would be willing to establish limits in the clause in the new contract (its previous demand had been open-ended); and dropped its vacation demand for 3 weeks of vacation after 8 years of service. From this record it appears to me that by February 3 no positions of the parties had become so fixed at this point as to render further negotiations futile. The actual negotia- tions between the parties had been relatively short, and in total aspects the avenues of negotiations had not been exhausted by any means.is As pointed out, the Company had not made a final offer and from the settlement in hours. The first five meetings each lasted less than 2 hours, and the meeting on December 22 lasted about 15 minutes. 72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sioux City, as aforestated, the Union reasonably expected an improved offer. In the final analysis, the positions of both parties changed materially during the meeting immediately preceding the unilateral changes, and at meetings subsequent to the unilateral actions by the Company. In order to find an impasse and to sustain the arguments and contentions by the Company, I would have to conclude that in the short and rather quick span of six meetings (from December 7, 1971, through February 2) the avenues to an agreement had been completely deadlocked, and as a result there were no prospects at all for reaching an agreement. I am not prepared to make such a finding in view of the fact that during this period both parties had made some concessions in their initial wage proposals, had agreed on the establishment of a safety committee, and had agreed, or virtually so, on the furnishing of carpenter tools. Furthermore, the Union had dropped its demand for a master contract, had consolidated its many and numerous demands to 11 key items, and had reduced or limited some provisions in its pension, vacation, and cost of living demands. The concessions offered by the Union up to February 3 were sufficient in number and significant enough in scope to indicate that further face-to-face bargaining on these subjects and other proposals might well be fruitful. It is true that the Union was continually insisting on improved pensions, premium pay, and vaca- tions or an extra holiday as extremely important items to them, and were also demanding wage increases in considerable excess of those the Company was offering, but, nonetheless, the Union's adamant insistence on these demands did not relieve the Company of the duty to negotiate further on these subjects and others, as the Union had made some significant concessions, as previously noted herein.19 In view of the discussions on February 2, it would have been extremely difficult for the Union to have modified its own wage offer or to have accepted the Respondent's offer. There is credited testimony by Francis Krier that at this session Lehman told them, "We are going to continue our previous offer. However, we are moveable and we want to tie this to our cost depending on what you also [heed] in other areas." This testimony was corroborated by Carroll Barnes, Rene DeWitte, and Francis McDonald, and with the subsequent admission by Lehman at the next meeting that he had not made a "final offer," I have no hesitancy in accepting the above testimony by the witnesses for the Union.20 As pointed out, it is also significant that the parties continued to meet for 2 months subsequent to February 2, and in so doing make substantial progress toward a contract. Lehman admitted that at the meeting on 19 See R James Span, d/b/a John L. Gibson, 189 NLRB 219, and Quality Motels of Colorado, Inc, 189 NLRB 332 20 DeWitte further testified, "Mr Lehman at that meeting [February 2] kept telling us that he had more to offer and to me how can you accept something if he tells you he has more there" Gerald Meyer, who had participated in earlier negotiations, testified that upon hearing about Respondent implementing its proposal he said , "When there is more to offer there is no way to settle" it is also noted that while the Respondent Assistant Superintendent Les Lamb could not remember or recall Lehman saying that the Company was movable in the area of wages on February 2, he would not deny that it was said February 9 the Company was flexible on wage issues, and that he had not made a "final offer." On February 16, the Company increased its wage offer to 12, 13, and 13 cents. At the session on February 28, the Union agreed to a contract effective on date of signing and lowered its wage demands to 20, 15, and 10 cents. By subsequent corre- spondence and telephone calls between attorney for the parties, an agreement on wages was very near. Further, as pointed out by the General Counsel, the parties' meetings of March 8 and 10, supplemented by letters and the same telephone calls, and a wrap-up on April 4 and 5, virtually resolved the matter of health, medical and surgical coverage, as Lehman himself admitted. The bad faith of the Respondent can also be demonstrat- ed by conduct other than what occurred at the bargaining table.21 Respondent's letter of February 3 addressed to 13 employees, advising them they were no longer employees, as aforementioned herein, was clearly an attempt to coerce employees into returning to work. The Company also made other unilateral changes in employees benefits and working conditions and did not communicate such to the Union. Thus, when some of the striking employees were recalled to work in January 1973, they were informed that there were no longer any coffee breaks and their lunch periods had been changed. The Company also ceased making pension contributions for strikers who returned to work (except for the first two) or for the replacement employees. Respondent's lack of good faith is further indicated in the reason offered by Respondent for implementing its economic proposals for replacements. As pointed out, in February the Sioux Falls labor market was anything but tight, the unemployment rate was something over 4 percent and comparable jobs were being offered at $1.65-$2 per hour. It becomes clear that the reason for granting wage increases to the replacements was to demonstrate to the striking employees that it did not pay to remain associated with the Union.22 Another reason given by the Company for their refusal to make any additional wage offer on February 2 was because the Union had not acceded to the Company's proposal regarding part-time employees. At this point in the negotiations, as noted by the Charging Party, part-time employee proposal by the Company was a request for a new contract clause permitting the Company to employ part-time employees to perform bargaining unit work at low wage rates, and which employees would not be covered by any contract provision, but would function outside of any collective-bargaining agreement. Such a proposal was predictably unacceptable to the Union. I agreed that rigid adherence to it by the Company in this context is further evidence of bad-faith bargaining, and this is another key factor and circumstance which militates against the 21 It is, of course, well established by the Board and the courts that failure to bargain in good faith rules out the possibility of there being an impasse 22 Donald Norby, manager of the Sioux Falls office of the South Dakota employment service, presented credited testimony and documentary evidence showing that in January 1972 and in February 1972, "especially February," were months of high unemployment in the Sioux Falls area-unemployment in January was 36 percent and unemployment in February was 44 percent in the Sioux Falls area Norby testified that normally unemployment in Sioux Falls is the highest in December, January, and February SIOUX FALLS STOCK YARDS CO Respondent's defense of impasse. In these respects the argument by the ChargingParty is as follows, "Such tactics under these circumstances show the Employer's determina- tion to emasculate the Union. Thus, if the Union capitulated to the Company on February 2 by accepting the Employer's contract offer and swallowing the part-time employee proposal in the face of the fact that there was more to be had in economic terms, it would have been disparaged and rendered impotent in the eyes of the employees. If it did not accept, however, the employees would be replaced and the Employer would have rid itself of the union adherents. Plainly, the Employer's motive was to undercut the Union. Quite revealing is the fact that not until February 16, when 46 replacements had been hired for 40 strikers, did the Employer improve upon its February 2 economic offer; and not until March 8 did it ease up on its part-time employee proposal. On February 2, the Employer had no intention of coming to agreement unless it emasculated the Union by forcing it to accept impossible conditions or until it rid itself of Union adherents by hiring replacements and calling them perma- nent. It geared its tactics to achieve such result. The conclusion is inescapable that it was engaging in bad faith bargaining." I conclude and find that the parties did not reach an impasse in negotiations on February 2, 1972, that the Company did not bargain in good faith, and that by unilaterally instituting the changes in existing wage rates, cost of living allowances, and in sickness benefits, the Respondent violated its duty to bargain under Section 8(a)(5) of the Act. A strike which begins as an economic strike is converted to an unfair labor practice strike by an employer's unfair labor practices which tend to prolong and aggravate the strike. The unilateral changes and especially the increased wage rates to replacements before any impasse was reached are, of course, unfair labor practices and, needless to say, such conduct substantially broadened the differ- ences between the parties, and was definitely a most significant and substantial factor in aggravating and prolonging the strike, and as pointed out, this record is abundant and replete with substantial, credible, and undisputed evidence to this effect. In view of the fact that because of the Company's action the economic strike was converted to an unfair labor practice strike on February 3, and all of the strikers were entitled to reinstatement when the unconditional offer to return was made on March 21, the Company's refusal to reinstate them constituted additional unfair labor practices in violation of Section 8(a)(1) and (3) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. V. THE REMEDY 73 Having found that Respondent engaged in certain unfair labor practices, I will recommend that it cease and desist therefrom, and take certain affirmative action designed to effectuate the policies of the Act. Having found that Respondent has refused to bargain collectively in good faith with the Union as the exclusive representative of its employees in an appropriate unit, I will recommend that, upon request, the Respondent bargain collectively with the Union concerning rates of pay, wages, hours, and other terms and conditions of employment, and if an understanding is reached embody such in a signed agreement. In view of the nature and extent of Respondent's unfair labor practices, I deem it necessary, in order to effectuate the policies of the Act, to recommend a cease-and-desist order couched in broad terms to prohibit any violations of employee rights under the Act. I have also found that the strike was converted into an unfair labor practice strike, and I will therefore recom- mend that the Respondent offer the unfair labor practices strikers, named in the Appendix, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, discharging, if necessary, any replace- ments in order to provide work for such strikers. I also recommend that the Respondent make whole for any loss of pay that they may have suffered by reason of the Respondent's discrimination against them by paying to each of these employees a sum of money equal to the amount that he normally would have earned as wages from March 21 to the date of the Respondent's valid offer of reinstatement, less his net earnings during said period. The amount of backpay due shall be computed according to the Board's policy set forth in F. W. Woolworth Company, 90 NLRB 289. Payroll and other records in possession of the Respondent are to be made available to the Board, or its agent, to assist in such computation and in determining the right to reinstatement. Interest on backpay shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. By denying reinstatement to strikers upon their unconditional application, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8(a)(3) and (1) of the Act. 4. All hourly paid operational employees in the Sioux Falls Stock Yards Company's Sioux Falls, South Dakota, plant, and such other employees as may hereafter become members of the Union, excluding office clerical employees, all other employees, watchmen, guards, and supervisors as defined in the Act, constitute a unit appropriate for the 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of collective bargaining within the meaning of Section 9(b) of the Act. 5. At all times material herein the Union has been and continues to be the exclusive representative of all the employees within said appropriate unit for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment, within the meaning of Section (b) of the Act. 6. By refusing to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and ( 1) of the Act. 7. On February 3, 1972, the strike was converted to an unfair labor practice strike by the Respondent's unfair labor practices. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication.]