Westinghouse Learning Corp.

WESTINGHOUSE LEARNING CORP. 19 Westinghouse Learning Corporation and Westing- house Learning Corporation (Indiana) and Claudies Banks and Local No. 4, United Plant Guard Workers of America and Edmund D. Hicks and Charles S. Grimes and Richard C. Steppling and Atterbury Federation of Teachers and Counselors (also known as Atterbury Federation of Counsel- ors),i Local 1693 affiliated with American- Federa- tion of Teachers, AFL-CIO and Glen D. Holmes and Diane P. Moore. Cases 25-CA-4346, 25-CA-4356, 25-CA-4356-2, 25-CA-4356-3, 25-CA-4371-2, 25-CA-4371-3, 25-CA-4420, 25-CA-4420-2 25-CA-4480, and 25-CA-4548 May 31, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On September 28, 1972, Administrative Law Judge Robert E. Mullin issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the General Counsel filed exceptions and supplementary exceptions to certain portions of that Decision and a brief in support thereof. The General Counsel also filed a brief in support of the attached Decision. 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 ' of the Administrative Law Judge and to adopt his recommended Order, with the following modification. We agree with the Administrative Law Judge that Glen D. Holmes was suspended for 30 days and subsequently discharged in violation of Section 8(a)(3) and (1) of the Act. However, we do not agree that Holmes ought to be reinstated and awarded backpay. Holmes was born on December 6, 1905. He was hired by the Respondent in 1966 when he was in fact 60 years old. On his application for employment he stated that he was born in 1911 and supported that assertion with compatable dates concerning his schooling. Holmes signed the application under a paragraph which included a statement that he understood that any false statements thereon would be sufficient grounds for his discharge. Holmes was suspended and discharged in 1971 at -a time when Respondent believed he was 60 years old, but when in fact he had passed his 65th birthday. It is undisputed that Respondent has a rule requiring retirement at age 65. The only record evidence of exceptions to that rule is contained in an extract from the Respondent's Industrial Relations Policies and Accounting Procedures Manual. It is clear from a reading of that manual that the exceptions do not apply to Holmes. The Respondent learned of Holmes' true age after his discharge, and urges his age as a defense against a requirement of backpay and reinstatement. We find merit in this position. Since it appears clear that the Respondent would not have retained Holmes in its employ past his 65th birthday but for its reliance on the untruthful information contained in his applica- tion form, and since the violation against him occurred after that date, we shall not order that Holmes be reinstated or awarded backpay.2 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 as modified below, and hereby orders that the Respon- dent, Westinghouse Learning Corporation and West- inghouse Learning Corporation (Indiana), its offi- cers, agents, successors, and assigns, shall take the action set forth in the Administrative Law Judge's recommended Order, as modified herein. 1. Delete the name "Glen D. Holmes" from paragraphs 2(a) and 2(b) of the recommended Order. 2. Delete paragraph 2(d) from the recommended Order and renumber the remaining paragraphs accordingly. 3. Substitute the attached notice for the Adminis- trative Law Judge's notice. MEMBER PENELLO, concurring in part and dissenting in part: I agree with the findings and conclusions of my colleagues in all respects except as follows. Like the Administrative Law Judge, the majority would not defer the cases of Banks, Hicks, Richards, and Smith i The Respondent contends that certain allegations in the complaint should be dismissed, and that the Board should defer to the contractually provided arbitration procedures available to the parties with regard to those allegations. The Administrative Law Judge denied the Respondent's motion to defer those matters to arbitration . We affirm his ruling on the motion and agree that the cases of Banks , Hicks, Richards, and Smith should not be deferred to arbitration. Member Jenkins would not defer to arbitration for the reasons set forth in his dissent in Collyer Insulated Wire, 192 NLRB 837 Member Kennedy is persuaded that deferral is not warranted in the absence of an established stable bargaining relationship and because of the nature and scope of the violations found herein . See National Radio Company, Inc, 198 NLRB No. 1. 2 See Southern Airways Company, 124 NLRB 749, 752; National Packing Company, Inc., 147 NLRB 446, 458. Cf. Bird Trucking and Cartage Co., Inc, 167 NLRB 626, 630. 211 NLRB No. 4 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the contractually provided arbitration procedures available to them. I disagree. Local 512, Retail, Wholesale and Department Store Union, AFL-CIO (RWDSU), is the certified and contractual bargaining representative of a unit of Respondent's employees, including Banks. Like- wise, Local No. 4, International Union, United Plant Guard Workers of America (Plant Guard), repre- sents a unit of Respondent's guards which includes Hicks, Richards, and Smith, by virtue of its certifica- tion and its contract with Respondent. Both RWDSU's and Plant Guard's contracts are first contracts and provide for a four-step procedure for the resolution of disputes culminating in final and binding arbitration, as a matter of right, of all grievances involving discipline or discharge of bargaining unit members, as well as alleged acts of discrimination against them. Banks filed a total of six grievances under the RWDSU's contract involving all of the matters which are here alleged as unfair labor practices committed against him by Respondent. All of these grievances were processed through the first three steps of the contractually established grievance procedure. The parties agreed to arbitrate the grievances, an arbitrator was selected, and a date for hearing designated. Banks sought a postponement and eventually withdrew from the arbitration pro- ceedings. But, both RWDSU and the Respondent indicated willingness to submit to arbitration throughout. Hicks, Richards, and Smith also filed grievances (a total of nine) paralleling all the allegations as to them which appear in the complaint. Again, the grievances were all processed through the first three steps of the grievance machinery, but none of the parties has sought to take any of them to arbitration. Thus, it appears that we have before us almost a classic case warranting deferral to arbitration under the principles enunciated by the majority of the Board in Collyer3 and National Radio.4 Yet, the Administrative Law Judge and one member of the majority herein reject the applicability of the Collyer doctrine because of: (1) The absence of a long- established bargaining relationship, and (2) the presence of union animus and a pattern of action subversive of Section 7 rights. As for me, those factors are not indispensable requisites or conditions for deferral. Requirement of a long stable bargaining relation- ship as a prerequisite for Board deferral to arbitra- tion in a case such as this seems to me to be inconsistent with the principles of Collyer and cases following. The lesson of these cases is that the decision to defer should not be predicated on a case- along; rather, it rests on the existence of contractual- ly enforceable considerations-rights and obligations -mutually agreed upon to provide a method for resolving contract disputes. As was recognized in Collyer: "When the parties have contractually com- mitted themselves to mutually agreeable procedures for resolving their disputes during the period of the contract . . . those procedures should be afforded full opportunity to function." Thus, if, as here, the contracts in existence satisfy the requirements for deferral, the legal basis for protection of employee rights has been established and the predicate for Collyer deferral has been laid. It is axiomatic that an obligation incurred by contract is equally enforce- able in an initial contract as it is in the last of a long series. That truth should be given the same weight here as in any other regard. Turning then to the union animus in this case as found by my colleagues and me, several factors warrant consideration. In the main, the animus found involves other employees than those represent- ed by RWDSU and Plant Guards; it concerns another labor organization; and it involves widely different fact situations. Of particular pertinence, the animus shown concerns segments of Respondent's work force seeking representation by a labor organi- zation not enjoying a contractual relationship with the Respondent. Our conclusion that the Respondent has violated the Act with respect to such organiza- tional activities does not warrant a conclusion that it would not honor its contractual obligation to arbitrate the disputes here and abide by the results of that arbitration. To the contrary, Respondent has indicated no aversion to its obligation with respect to Hicks, Richards, and Smith, and in Banks' case it affirmatively showed its willingness to arbitrate. Also, as noted in Collyer, "After Boys Market [Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235] it may truly be said that where a contract provides for arbitration, either party has at hand legal and effective means to ensure that arbitration will occur." And if the parties' own processes fail to function in a manner consistent with the dictates of our law, we guarantee, by our reservation of jurisdiction, that there will be no sacrifice of statutory rights. Given the clear language of the contracts warrant- ing deferral, and the Respondent's equally clear indication by both word and deed that it intends to abide by its contractual obligation in this respect, I would defer the cases of Banks, Hicks, Richards, and Smith to arbitration as provided in Collyer and the cases following. 3 Collyer Insulated Wire, supra by-case historical analysis of the parties' ability to get 4 National Radio Company, Inc., 198 NLRB No. 1. WESTINGHOUSE LEARNING CORP. 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 any labor organization by discharging or otherwise discriminating against our employees because of their union or concerted activities. WE WILL NOT coercively, or otherwise unlaw- fully, interrogate our employees as to their union activities. WE WILL NOT unilaterally change working conditions of employees : in the , unit described below without notifying,'consulting, or bargaining with the aforesaid Union prior to so doing. 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 any labor organization, to bargain collectively through representatives of their own choosing, or to engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. WE WILL, upon request, bargain with Atterbury Federation of Teachers and Counselors, Local 1693, affiliated with American Federation of Teachers, AFL-CIO, as the exclusive representa- tive of all the employees in the bargaining unit described below, with respect to rates of pay, wages, hours, and other conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agree- ment. The bargaining unit is: All counselors employed by us at the Atterbury Job Corps Center, exclusive of office clericals, professional employees, guards, supervisors and all other employees. WE WILL offer Claudies Banks, Robert Arms, Robert Brown, Carolyn Clark, Sergei Daviden- koff, Loren Hall, Willard Kennedy, Gerald B. Morris, Stewart Northrup, Harish Pandya, Pence Pruit, E. Paul Sechrist, and Philip Waggoner immediate and full reinstatement to their former jobs or, if any of those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or other rights and privileges. WE WILL make whole all of the employees named in the preceding paragraph, and also Edmund D. Hicks, for any loss of pay suffered as a result of the discrimination against them. 21 WESTINGHOUSE LEARNING CORPORATION AND WESTINGHOUSE LEARNING CORPORATION (INDIANA) (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compli- ance with its provisions may be directed to the Board's Office, 614 ISTA Center, 150 West Market Street, Indianapolis, Indiana 46204, Telephone 317-633-8921. DECISION STATEMENT OF THE CASE ROBERT E. MULLIN, Administrative Law Judge: This case was heard in Columbus, Indiana, on January 3, 4, 5, 6, 7, 12, 13, 14, 18, 19, and 20, 1972, and on June 5, 6, 7, 8, 9, and 13, 1972, pursuant to charges duly filed and served.' The complaint in Cases 25-CA-4346, 4356, 4356-2, 4356-3, 4371-2, 4371-3, 4420, and 4420-2, was issued on September 20, 1971. The complaint in Case 25-CA-4480 was issued on September 30, 1971. A supplemental and amended complaint in Cases 25-CA- 4371-2 and 4371-3, and a complaint in Case 25-CA-4548, as well as a notice of hearing and an order consolidating all of the above- numbered cases, was issued on November 30, 1971. Further amendments to the consolidated complaint were issued December 2, 1971. On June 5, 1972, and at the outset of the reopened hearing, a motion by the General Counsel to amend further the complaint in Cases X25-CA-4420 and 4420-2 was granted. In its answers, duly filed, the Respondent conceded certain facts as to its business operations, but denied all allegations that it had committed any unfair labor practices. On January 3, 1972, and at the outset of the trial, the Respondent moved to dismiss the complamts in Cases .25-CA-4346,4356,4356-2, and 4356-3, on the ground that the allegations therein were similar or identical to griev- lances which had been filed under applicable collective- All charges were filed in 1971 . The original charge in Case 25-CA-4346 was filed on June 3, and an amended charge on July 12. The original charge hn Case 25-CA-4356 was filed on June 7, and in Cases 25-CA-4356-2 and 14356-3 on August 30. The original charges in Cases 25-CA-4371-2 and 4371-3 were filed on June 14. The original charge in Case 25 -CA-4420 was ,Bled on July 9 and a supplemental charge on September 13. The original charge in Case 25-CA-4420-2 was filed on July 27 and an amended charge on August 24. A supplemental charge in Case 25-CA-4371-2 was filed on September 22, and a supplemental charge in Case 25-CA-4371-3 on September 24. The original charge in Case 25-CA-4548 was filed on September 27 and an amended charge on November 30. The original charge in Case 25-CA-4480 was filed on August 16. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargaining agreements and which were arbitrable under binding arbitration provisions of those agreements. I granted this motion, but retained jurisdiction for the limited purpose of entertaining an appropriate motion for further consideration for the purposes set out by the Board in Collyer Insulated Wire, 192 NLRB 837. Thereafter, the General Counsel appealed this ruling to the Board. Meanwhile, the parties proceeded to trial as to the merits of the balance of the consolidated complaint and the hearing thereon was concluded on January 20, 1972. On March 20, 1972, the Board reversed the above- described ruling and remanded the aforenumbered cases for further hearing on those allegations which had been dismissed in the ruling of January 3. Pursuant to this remand, the record was reopened and the trial was resumed on June 5. It was concluded on June 13, 1972.2 All parties appeared at the trial and were given full opportunity to examine and cross-examine witnesses, to introduce relevant evidence, to argue orally at the close of the trial, and to file briefs. Oral argument was waived by the parties. On March 24, 1972, the Respondent, and on March 30 the General Counsel, submitted able and comprehensive briefs as to so much of the case as was heard in January. On August 21, 1972, the General Counsel and the Respondent filed supplemental briefs on the evidence presented at the reopened hearing. Upon the entire record in the case, including the briefs of counsel, and from his observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation, maintains its principal office in Wilmington, Delaware, with an office and place of business at Edinburg, Indiana. At the latter place it has been engaged, at all times material herein, in operating and managing the Atterbury Job Corps Center (herein called Center). In the year prior to the issuance of the first of the above-described complaints, a representa- tive period, the Respondent, in the course and conduct of its business operations, purchased and delivered, to the foregoing Center, supplies and materials valued in excess of $50,000, which were transported to Edinburg directly from States other than the State of Indiana. Upon the foregoing facts, the Respondent concedes, and I find, that Westinghouse Learning Corporation and Westinghouse Learning Corporation (Indiana) is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATIONS INVOLVED The Respondent concedes, and I find, that Retail, Wholesale and Department Store Union, AFL-CIO, and its Local 512 (herein called RWDSU); American Federa- tion of Teachers and its Local Union 1693, also known as Local 1693, Atterbury Federation of Teachers and Counsel- ors and/or Atterbury Federation of Counselors (herein called Counselors Union); United Plant Guard Workers of America and its Local 4 (herein called Guards Union); and United Brotherhood of Carpenters and Joiners of America and its Local 3080 (herein called Carpenters Union), and each of them, are and have been, at all times material herein, labor organizations within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background and Sequence of Events The Atterbury Job Corps Center, a facility of the United States Department of labor, is located in Southern Indiana on a portion of the former military reservation known as Camp Atterbury. The Center is one of several established by the Department of Labor (herein DOL) to provide vocational training for disadvantaged male youths. Since 1966, the Westinghouse Learning Corporation has manned and operated the Center under a contract with the DOL. The young men (known as corpsmen) undergoing training at the Center are from 16 through 21 years of age. Approximately 2,000 corpsmen are in training at the Center at all times, and their average length of stay for such training is 11 months. In the vocational sector of the Center's program, courses are offered in automotive service , electronics, food service, and the building and metal trades. A general education program from the elementary grades through high school is also provided. This last is designed to supplement whatever prior education the corpsmen have when they arrive. After being tested as to the level of his educational achievement, a corpsman is assigned to the respective grade level he had reached previously. Thereafter, the corpsman attends general education classes for several hours each day and the balance of his worktime is spent at vocational training. In the maintenance of this program the Respondent has on its staff, inter alia, vocational teachers , general education teachers, and counselors. Early in 1971, the Respondent had about 14 counselors who advised the corpsmen on the educational and vocational program available, and through an orientation and residential living program helped the corpsmen to adjust to the Center. William C. Hearnton, director of the center from March 1, 1971,3 to the present, testified that the corpsmen are recruited mainly from the inner city areas of Chicago, Cleveland, Detroit, New York, and Pittsburgh, and that about 80 percent of them are black, about 10 percent Spanish-American, and about 10 percent white. He further testified that of the approximately 600 employees at the Center about 40 percent are black and 60 percent are white. Five unions have been certified by the Board to represent various units of Respondent's employees at the Center. Thus, the Hotel, Motel, and Restaurant Workers Union, Local 58, represents the cafeteria workers. The Carpenters Union represents the facilities employees. The RWDSU represents the resident advisory staff and the 2 The reopening of the case was scheduled onginally for May 3, 1972. 3 All dates herein are for the year 1971 unless otherwise specifically Shortly before that date counsel for the Respondent became ill and at his noted. request the resumption was set over until June 5 WESTINGHOUSE LEARNING CORP. 23 Guards Union represents the security employees. These four unions have existing collective-bargaining agreements. In.a4dition.to.the,fore ging,in 1971, the Counselors Union was certified, following a Board-conducted election, to represent a unit of counselors.4 The bargaining of the Respondent with the last-named union is an issue herein. In addition to the foregoing labor organizations, the Atterbury Federation of Vocational Teachers (herein called , Federation) also figures in this case. The latter conducted an organizational campaign during 1970 and 1971 among the Respondent's vocational teachers. In November 1970, it filed a representation petition (Case 25-RC-4509) which led to an election in January 1971. Objections to conduct affecting the results of that election caused the Regional Director to set it aside and order a new election which was held on June 22, 1971. The Federation lost both elections. It is evident from the record that early in 1971 the Department of Labor had become extremely critical of the Respondent's operation of the Center. In March of that year, a review team of the DOL completed a study of the Atterbury Center which severely criticized almost every phase of the Respondent's performance under its contract. Upon concluding this inspection, the DOL review team described the Center as being in "chaotic condition" 5 and then, in a 44-page report, enumerated a multitude of deficiencies. These adverse findings came as no surprise to the Respondent. A few weeks before the arrival of the DOL team, and in anticipation of the need for a drastic revision of the Center's management, the Respondent appointed William C. Hearnton as the director. He arrived at the Center on March 1, 1971. Shortly before officially assuming the role of. director, Hearnton visited the Center to conduct his own inspection of the site. At the trial he testified, credibly and at length, as to what he described as the appalling conditions that he observed. According to Hearnton, most of the buildings in which the corpsmen lived and those where they worked were in a state of disrepair, with broken windows, unhinged doors, and other evidence of vandalism. A theater for the corpsmen, built only 6 months before, was already a shambles, with the seats broken, the stage torn up, and stagnant water on the floor. The mess hall was dirty and lacking elementary sanitation. According to Hearnton, on visiting the dormitories where the corpsmen lived, at an hour when all of them should have been in class, he discovered many still in the buildings and some of them engaged in gambling. On that occasion also, he witnessed a payday scene in the dormitories6 which convinced him that the younger corpsmen were being subjected to outright extortion by some of the older members of the corps. Equally disturbing to the new director was what he considered to be a total lack of discipline among the corpsmen. No effort was being made to require the young men to wear the green uniform 4 The unit found appropriate in that representation proceeding, and which I now find appropriate, is described as follows: All counselors employed by the Respondent at the Center located in Edinburg, Indiana, exclusive of office clericals, professional employees, guards, and supervisors. 5 The quotation is from the DOL report. 6 Initially, the corpsmen are paid an allowance of $30 a month. After identified with the Job Corps, many of the corpsmen were shabbily dressed and many had beards and long hair. Hearnton found it equally disconcerting to find some of the staff, including the counselors, in particular, to be, from his point of view, similarly unkempt. Mr. Hearnton came to his new post with considerable background in Job Corps management, having had several years experience at other centers. As an able, articulate leader he also had a sense of mission and a philosophy that did not tolerate disorder, lack of discipline, or careless dress. Immediately after assuming his duties as Center Director, he set about rehabilitating the buildings, reorgan- izing the staff, and establishing higher standards of discipline among the corpsmen. In a directive to all supervisory personnel, dated March 3, he stated that Job Corps policy required that staff members and corpsmen be well groomed at all times, and that henceforth all would be clean shaven and have neatly trimmed hair while at Atterbury.7 These requirements as to dress were promptly incorporated in a revised edition of the Center's rules of conduct. The new director's dress code met with considerable resistance from many of the counselors. In April, when all of them were asked to submit statements to the effect that they had read the revised "Rules of Conduct," several did so under protest and asserted that their acknowledgments had been secured by duress and threat of severance. In March and April, several of the counselors,8 when ordered by their supervisors to cut their hair or shave off beards to comply with the new code, filed charges of discrimination with the Equal Employment Opportunity Commission, alleging that their civil rights had been violated. Hearnton's administration won praise from the DOL review team which conducted a followup review of the Center on June 21-25. In the report, issued upon concluding the review, the team stated: The overall finding of the review team was that the Atterbury Job Corps Center had made remarkable progress in correcting the deficiencies noted during the first review. The appearance of the physical plant , the motivation and morale of the corpsmen and staff, the training, and the support activities are now all at a high level. Team members were amazed that such change could have taken place in 90 days. The current status of Atterbury clearly reflects the excellent management abilities of the Center Director. Both he and his staff are to be congratulated. B. The Disposition of Cases 25-CA-4371-2, 25-CA-4371-3, and 25-CA-4548 The above-numbered cases involved the alleged discrimi- natory discharges of Diane P. Moore, Neva Carter, Charles S. Grimes, and Richard C. Steppling, and various alleged various conditions and achievements are met, this amount may be increased to $50 a month. 7 The directive stated, however, that mustaches would be permitted if neatly trimmed or well groomed. 8 E.g, Robert W. Arms, Sergei N. Davidenkoff, Willard G. Kennedy, and Hansh Pandya. 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD violations of Section 8(a)(l) of the Act. Of the four named, all except Steppling testified early in the hearing. Midway in the presentation of his case, and before calling Steppling to the stand, the General Counsel stated, on the record, that information had been brought to his attention which convinced him that these witnesses had tampered with a key document about which they had testified. As a result, the General Counsel stated that he could no longer vouch for the credibility of these witnesses . He thereupon moved to strike their testimony from the record and to dismiss all allegations in the complaint based upon their testimony. There being no opposition to this motion, it was granted by me.9 C. The Organizational Campaign of the Counselors Union,' the Election During the winter of 1970-71, all of the counselors joined the Counselors Union, and Pence Pruitt, one of their group, was designated as the president. On March 1, the very day that Mr. Hearnton assumed his duties as Center Director, the counselors sent a letter to him, requesting that the Atterbury Federation of Teachers and Counselors, Local 1693, be recognized as their exclusive bargaining agent. The letter was signed by all 14 counselors then on the staff. The Company's response to this request was made by Robert A. Dyer, director of personnel and manager of industrial relations. In a letter dated March 12, Dyer told the counselors that the Respondent doubted the Union's majority and suggested that they proceed to a secret ballot election conducted by the Labor Board. Early in March, L. C. Crispel, then deputy director of the Center,10 attended a luncheon at which several of the counselors were present. Some of the latter raised with Crispel the prospects for their organization. Carolyn Clark, among those present, testified that Crispel warned them "... watch your step because they [the Respondent] will do everything they can to bust your Union." Pence Pruitt, another counselor who was at the luncheon, testified that Crispel predicted the management would "do everything they could to pick us off." Both Clark and Pruitt were credible and their testimony was neither contradicted nor denied. Late in February or early in March, William L. Gregory was appointed counseling coordinator, a supervisory position." At some point before the election in May, Gregory left the Respondent's employ. The ensuing lack of a supervisor, or coordinator, and the unfilled vacancies on the staff were a matter of serious concern to the counselors. In a letter dated April 23, and addressed to Center Director Hearnton, Pence Pruitt protested the absence of a counseling supervisor and the lack of any action by the 6 Subsequent to this ruling, an opportunity was given the four above- named alleged discriminatees to appear at the hearing and protest this disposition of their cases. However, none of them elected to do so. 10 Crispel left the Respondent's employ shortly afterwards. 11 The Respondent denied that Gregory had supervisory status, but offered no testimony to support that position. There was substantial evidence that Gregory had, and exercised, supervisory authority. Carolyn Clark, a counselor, credibly testified that in late February, or early March, Eugene Kinlow, director of behavioral development and services, held a meeting at which he told all the counselors that henceforth Gregory would be their manager, that they would report to him, and that Gregory would Respondent to fill the current vacancies. Pruitt asked that the Center promptly fill these posts. The Board-conducted election for the counselors was held on May 19. In the weeks prior thereto, the Respon- dent sent them a series of bulletins setting forth its opposition to the Union and urging them to vote against it. On May 18, Mr. Hearnton had a meeting with the counselors at which he spoke to them at length about the problems of the Center, asked that they vote against the Union and urged that they give him a year without a labor organization. Hearnton read his speech from a prepared text. After completing its presentation he remained for a question and answer period. During that period, Hearnton was asked as to his plans for the counseling department. Pence Pruitt testified that Hearnton stated that he planned to appoint a coordinator from the ranks of those present and that he would do this within 3 to 4 days. Pruitt's testimony in this regard was corroborated by Carolyn Clark and Norman Merkler, both of whom were present. Hearnton acknowledged having been asked this question during the meeting, but testified that in his answer he merely stated, "I might or might not [appoint a coordina- tor] . . . I have not finalized my plans." This testimony on his part, however, is contradicted by the prepared speech which he read to the counselors at the outset of the meeting, a copy of which appears in the present record . According to a passage in this manuscript, Heamton stated that he was speaking on this matter, in order that there would be no doubt of the role and objectives of counseling in the total Center program ... I intend to fill the post vacated by Bill Gregory within the next few days. [Emphasis supplied.] In succeeding paragraphs, he described the importance of this job, which he described as that of "Counseling Supervisor," and stated that The person named to fill this post will be familiar with your problems . . . will recognize the job that has to be done ... and will need your full support and cooperation.... Having made the above remarks in his prepared text, it would not seem unlikely that during the question and answer period Hearnton would go further and assure those present that the one selected to fill Gregory's post "within the next few days," and who "will be familiar with [the counselors'] problems" would be one of them. In view of the tenor of the prepared speech in this regard and the credibility of Pruitt, Clark, and Merkler in this connection, it is my conclusion that at this meeting, as the counselors make assignments and be responsible for their accomplishing such assignments. There was other testimony by Clark to the effect that soon thereafter Gregory hired a new counselor and a short while later discharged this person. The General Counsel also offered in evidence a letter dated April I which Gregory sent to Norman Merkler, a counselor , wherein he granted Merkler several days off to move his family to a new house. Gregory stated that the time off was being given because of Merkler's "excellent attendance record for the year and in appreciation for the extra hours . . . given to the performance of [his ] duties." On the foregoing credible and uncontradicted evidence, it is my conclusion that, in his role as counseling coordinator, Gregory exercised supervisory authority. WESTINGHOUSE LEARNING CORP. 25 testified, Hearnton promised that within 3 to 4 days he would appoint a counseling supervisor from within their ranks. At the election, held the next day, the vote was 13-0 in favor of the Union. After the election, the counselors heard nothing further about securing a "Counseling Supervisor" and Hearnton chose no one from among their number to fill such a job. It is my conclusion, based on the foregoing sequence of events, that the director's promise to appoint a supervisor from the ranks of the counselors, made on the eve of the election, was a promise of benefit that the Respondent proffered to influence the outcome of the election and for no other purpose. As such, this action constituted a violation of Section 8(a)(1) by the Respon- dent. D. The Bargaining Sessions Before and After the Carpenters Strike Immediately after the election, Merkler was designated by Local 1693 as chairman of its negotiating committee. On May 21, he went to the office of Robert A. Dyer, director of personnel and manager of industrial relations, to ask that the Respondent begin collective bargaining with the Counselors Union. Dyer and Ronald Ingham, an attorney for Westinghouse, were in the office. Both told Merkler that the Respondent had not yet received the formal notice of certification from the Board and that until it arrived the Company would not meet with the Union.12 In a letter dated May 28, Merkler proposed a meeting of the parties on June 2. Dyer ignored the request on the ground that the Respondent still had not received a copy of the Union's certification. In a letter dated June 4, Dyer wrote Merkler that the Company had received a copy of the certification and that he was prepared to meet the union committee on June 9, at his office. Meeting of June 9: This meeting, held in Dyer's office, was attended by Merkler, Pruitt, Clark, and Robert Thornberry, representing the Union, and Dyer, Robert Pattison, and Ira Pack, representing the Company. It lasted approximately an hour. Merkler proposed that the parties meet twice a week, but Dyer refused to commit himself to that schedule . Merkler than requested that the meetings be held in some neutral place, rather than Dyer's office, but the latter refused.13 However, the parties thereafter agreed that during their meetings each side would have only one spokesman that the bargaining team for each side could have four members, that either side could request a recess to caucus among themselves , and that none of the day-to- day agreements as to specific items would be binding until an entire contract had been negotiated by the parties. Before the conclusion of the meeting, Dyer requested that the Union present its entire contract proposal. Merkler told him that his committee had not finalized their proposal but that it would be ready within a week. The meeting then adjourned. Prior to the election, the counselors held conferences with corpsmen anywhere from noon until 9 p.m. Shortly after the election, Ira Pack, manager of residential living, told the counselors that no more appointments with corpsmen could be scheduled during the daytime. Early in June, Herbert Patton,14 manager of Campus East,15 announced that the counselors assigned to his jurisdiction could schedule no more appointments with corpsmen in the afternoon. Both Pack and Patton acted unilaterally and without consulting the bargaining agent for the counselors as to this change in working conditions. A union committee, consisting of President Pence Pruitt, Sergei Davidenkoff, Willard Kennedy, and Stewart Northrup, later had separate meetings with Patton and Pack at which they protested this change, but their protests were unavailing. About the middle of June, Ernest Burton, manager of Campus West, announced that the counselors who report- ed to him would have to punch a timeclock. This action was taken without consulting the employees' bargaining agent. On or about June 15, Burton told Merkler to punch a timecard. Merkler testified that he thereupon protested that counselors, as salaried employees, had never been required to punch timecards and that he did not think such a requirement could be enforced unless it was a matter of union contract. Merkler testified, credibly and without contradiction, that Burton then told him, "Your damn union won't help you .... You'd better punch that time card now, or you're going to be fired." 16 Merkler persisted in his refusal and then went to Dyer's office to protest Burton's action. There, Dyer assured him that the counselors would not have to punch timecards and that settled the matter. Notwithstanding the corrective action taken by Dyer, the declaration that Burton made to Merkler when endeavoring to enforce a unilateral change in the working rules was threatening and coercive. As uttered by Burton, Merkler could assume that the timeclock requirement imposed on him was punitive action that Burton was taking because of the Union. Burton's conduct in this regard constituted, and is found to be, a violation of Section 8(a)(1) by the Respondent. On June 14, Merkler, Pruitt, and Clark went to Dyer's office and there presented to him a copy of the Union's proposed contract. Merkler testified, credibly, that at this time he told Dyer that the Union's economic proposal was ready if the Company wanted it at that time, but that Dyer declined to take it then on the ground that it would be better to wait until agreement had been reached as to the language in the rest of the contract. After the meeting held on June 9, the parties agreed to meet again on June 16. At the appointed hour on that date, Merkler, Clark, Pruitt, and Brown appeared at Dyer's office. Dyer was engaged in a conference with other management personnel at the time and did not receive the union delegation until it had waited for a half hour. When at last Dyer appeared, he spent about 30 minutes going over certain corrections which Merkler wanted to make on the copies of the Union's contract proposal. Dyer than told 12 The findings in this paragraph are based on the mutually corrobora- 15 There were two major divisions of quarters for the corpsmen at the tive testimony of Dyer and Merkler. Center, one designated Campus East and the other Campus West. 13 Dyer denied that he had insisted that all meetings be in his office , but 16 Burton was never called as a witness Merkler's testimony was in this instance Merkler's testimony was the more credible. undented. 14 In the transcript, this name is incorrectly spelled as Patent. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the union representatives that he would have to send a copy of the proposed agreement to Pittsburgh for study by the labor relations section in the corporate headquarters. He told Merkler that it would require about a month to get an analysis of their proposal from Pittsburgh. When Merkler pressed him as to when the Respondent would be ready for another collective-bargaining session, Dyer replied that his response would be "timely," 17 and refused to be any more explicit.18 After an exchange of letters during the next 2 weeks in which the Union initially sought a meeting on June 28 or 29, the parties finally agreed on a company proposal that they meet at 1 :30 p.m. on July 7. On July 7, and as the result of a dispute unrelated to any issue in this case, the Carpenters Union called a strike of the facilities' employees and established a picket line at the entrance to the Center. In sympathy with the striking members of the Carpenters, all the counselors elected to honor the picket line and remain away from work. At 1:30 p.m. on July 7, Merkler and his union committee arrived at Dyer's office. Dyer's secretary at first told the counselors that Dyer had canceled the meeting, but, after they remained at his office for about half an hour, Dyer appeared and met with them for a few minutes. Mrs. Clark, present as a member of the Union's bargaining committee, testified that Dyer told them that he could not negotiate with them that day because of the Carpenters strike. Merkler corroborated Mrs. Clark as to Dyer's explanation for his unavailability. Dyer testified that he could not recall what his conversation was as to that issue, other than that he told the committee he could meet only briefly. Merkler also testified that Dyer told the union committee that he "would not negotiate with us . . . as long as any counselor remained out on the picket line or refused to cross the picket line" 19 Dyer denied that he made these remarks. This conflict will be resolved later herein. Clark testified that before the brief meeting ended, Dyer agreed to meet with the union negotiating committee on July 14. During the course of his testimony, Dyer conceded that he orally agreed to the latter date for a meeting.20 At about 1:15 p.m. on July 14, the four regular members of the union negotiating team, viz, Merkler, Clark, Pruitt, and Brown, attempted to enter the Center to keep their appointment with Dyer. Harish Pandya, another counselor and union member, accompanied them. Merkler testified, credibly and without contradiction, that they were told at the gate by the security guard on duty, one Pat Beavin, that all 13 counselors were on a list of people who had been barred from the Center. Thereafter, when the members of the union committee sought out the officer on duty at the security office, one Corporal Gill, and protested that they had a meeting scheduled with Dyer, Gill told them that he was forbidden to admit them without permission from it The quotation is from Merkler's testimony. is The foregoing findings in this paragraph are based in part on the testimony of both Merkler and Dyer. In only one significant aspect did their testimony differ as to this meeting. Dyer stated that Merkler came to his office alone, whereas the latter testified that he was accompanied by Clark, Pruitt, and Brown. In this latter regard, Merkler's testimony was the more credible. is Merkler further testified that , when Dyer attributed his unavailability for negotiations to the Carpenters strike, he asked Dyer how long it would what he described as "someone in authority." While the other members of the committee remained at the security building, Merkler attempted to leave and walk to Dyer's office. He was immediately surrounded by a cordon of guards who escorted him back to the security office. When Merkler returned, he and the other members of the union committee, along with Pandya, were told that they could go to their offices to pick up their personal possessions. When they did so, they were accompanied by guards from the security office. At about 3 p.m. the latter informed the members of the union committee that they would be driven to Dyer's office. When Merkler and his group arrived there, Dyer told them that they had been replaced and that he did not consider them as the representative of the counselors who then worked at the Center. Merkler testified that Dyer told them that he was not going to waste time negotiating a contract with their Union because later he would have to negotiate another with their replacements. According to Merkler, the union committee protested that the Respon- dent was under an obligation to negotiate with it as the certified representative of the counselors and that his committee had standing to represent all of the counselors. Merkler further testified that after Dyer told the counselors that their positions had been filled, he (Merkler) asked how many had been replaced, and Dyer declined to supply this information. According to Merkler, Dyer also stated at this time that he did not intend to negotiate with them as long as any counselors honored the picket line. Merkler then questioned Dyer as to whether he and the other counselors had been fired. Dyer denied that they had been terminated and said they had been replaced. When Merkler then asked whether replaced and fired meant the same thing, Dyer described the difference in meaning as "a matter of semantics." Merkler's testimony in this connec- tion was credible and Dyer's testimony was substantially to the same effect. Merkler also testified that at this meeting he asked Dyer whether any of the counselors who wanted to cross the picket line would have access to the Center and be allowed to return to work. According to Merkler, Dyer replied in the negative and told him and the union committee that none of them would be allowed to set foot on the Center, that they had been replaced, and that their duties were being handled by other people. Before the meeting ended, Merkler suggested that they meet again the day that the strike was settled. Dyer suggested that it would be better to have a definite date and the parties then agreed on August 16 as the date for their next meeting. At the trial, Dyer testified that he told the union committee at the meeting on July 14 that they and all the old counselors had been replaced. He conceded that he also told them that since they had been replaced he take to settle that dispute . According to Merkler, Dyer replied that "We could settle this thing in five minutes if we wanted to.... We don't intend to, we're going to let them die on the vine. We 're gonna teach them a lesson. We'll let them stay out until they ... beg to come back." At the trial, Dyer denied that he made any such comments. 20 Dyer also testified that he never confirmed this commitment as to July 14 in writing. However, there was no evidence that the parties agreed that they would meet only when arrangements were confirmed in writing. WESTINGHOUSE LEARNING CORP. 27 questioned whether they - were the legitimate group with which to, negotiate a contract for the counselors who had taken -their jobs. Dyer4estified that he told them "as soon as I could find out if this group was the appropriate group to bargain with I would meet with them." Dyer likewise testified that Merkler asked how many counselors had been replaced, Dyer did not contradict Merkler's testimo- ny to the effect that he refused to supply this information. Nor did Dyer deny having told Merkler that he saw no reason for negotiating two contracts by meeting first with the union committee and then with the counselors who had replaced them. According to Dyer, it was not until after this meeting of July 14, and after he contacted the Respondent's labor relations counsel, that he learned that he was still obligated to meet with the union negotiating committee. In view of the foregoing testimony in which Dyer conceded that it was not until sometime after July 14 that he learned of this obligation on the Respondent 's part, it is my conclusion that, as Merkler testified, both on July 7 and again on July 14, Dyer told the union representatives that he would not talk with them as long as the strike continued and the counselors honored the picket line. On or about July 23, Merkler telephoned Dyer to ask whether the counselors could cross the picket line and return to work. According to Merkler, Dyer stated that he would advise against doing that. Merkler testified that he then asked whether or not he could come to work when the picket line was removed, but Dyer declined to answer and simply said, "We'll cross that bridge when we get to it." Dyer denied that he advised Merkler that the counselors should not attempt to cross the picket line. He did state that during this conversation he told Merkler that the counselors had been replaced and that there was no work for them. It is my conclusion that in this conversation, as Merkler testified, Dyer also stated that the counselors should not attempt -to cross the picket line. In a letter dated July 20, Dyer wrote to Merkler to suggest that the parties meet on August 6, rather than on August 16. In a letter dated July 26, Merkler accepted this offer. Rather than mail this written response, Merkler endeavored to deliver it to Dyer's office. On arriving at the gate to the Center, he was met by Captain Billy Davis of the security force. Davis cursed him and ordered him off the premises on the ground that Merkler had no business at the Center. Finally, after insistence by Merkler that he had to meet Dyer, Davis telephoned the latter and Dyer came to the security office where he accepted Merkler's letter. Merkler's testimony as to his encounter with Davis on this occasion was credible and it was not denied or contradict- ed. In a letter dated July 27, Dyer wrote as follows to Merkler (and all other counselors who remained away from work during the Carpenters strike): Because of your status, request you return your I.D. card, Office Keys, and Government Drivers' License, if issued one, to this office. [Emphasis supplied.] On about August 2, the Carpenters strike was settled and the picket line was removed from the entrance to the Center. Dyer testified that, on August 3, 12 of the 13 counselors who had stayed away from work in sympathy with the Carpenters strike called or came to his office to request their jobs back.21 Dyer further testified that thereafter all 13 of the counselors wrote individual letters advising him that they were ready and willing to return to work and requesting reinstatement. To all of these requests, Dyer's uniform response was that the counselors had been replaced and that there was no work for them. In a letter dated August 5, Dyer notified the former striking counselors that their vacation checks would be available at the security office on August 10, at which time each would have to turn in keys, identification badge, and auto sticker. When the counselors reported to the security office on the latter date, Captain Billy Davis required that each sign an acknowledgement that the vacation check he received was a final payment from the Company. In addition to the individual letters requesting reinstate- ment, which all of the counselors wrote to Dyer early in August, Pence Pruitt, as president of the Union, wrote Dyer, in a letter dated September 10, that all of the counselors who had been on strike were ready and willing to return to work and desired reemployment. Dyer acknowledged having received this letter. Meeting of August 6: Merkler, Pruitt, Paul Sechrist, and Robert Brown represented the Union and Dyer and Pattison represented the Respondent. Dyer testified that he gave the Union a page of the Company's proposals at this meeting. This listed four proposed paragraphs for inclusion in a collective-bargaining agreement, namely, clauses on (1) recognition, (2) number of members on the bargaining committee, (3) nondiscrimination, and (4) a statement on the desire of the parties for a harmonious relationship. The Union agreed with the proposed language as to all of the foregoing except the one limiting the number of members for the bargaining committee, and the parties agreed to hold that paragraph for later discussion. At the outset of the meeting, Dyer stated that he had 1 hour to spend. At the end of 50 minutes, he announced that the time was up and he thereupon closed the meeting over union protests.22 At the conclusion of the meeting on August 6, Dyer stated that he could not meet with the Union for another month. The Union protested, but the next meeting was not held until September 7. On the latter date, the parties met at the Imperial House Motel in nearby Columbus, Indiana. Merkler, and the same group he had at the earlier meetings, appeared for the Union. Dyer, Pattison, and Pack represented the Compa- ny. At the outset, Dyer presented, for the first time, the Company's counterproposal for a collective-bargaining agreement,23 and the parties discussed the opening 21 Dyer testified that the one exception was Mrs. Clark, and that the preceding Monday she had called her supervisor to say that she would not be able to report on August 3 because she was on a vacation. 22 This finding is based on the credible testimony of Merkler. Dyer conceded that he terminated the meeting early. 23 As found earlier, at the meeting on August 6, Dyer made a proposal as to only the four preliminary paragraphs of a contract At one point dung the hearing, Dyer testified that he gave the Union the Respondent's complete counterproposal at the August meeting, but this testimony was (Continued) 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD paragraphs which reiterated the language upon which accord had been reached on August 6. On September 9, the parties met again at the Imperial House Motel. At the request of the Union, the meeting was held in the morning. Little was accomplished at this session. Merkler renewed an earlier demand that the Company supply the Union with the names of the replacement counselors and Dyer told him that he would study the request. At this time also, at Dyer's request, the Union provided the company representatives with a copy of "The Ethical Standards of the American Personnel and Guidance Association." Dyer testified that there was a meeting of the parties on the evening of September 21. Merkler, however, denied that there was any meeting on that date. On October 4, Dyer wrote Merkler to propose a meeting on October 21. In a response, dated October 8, Merkler wrote Dyer to accept the proposed date. In doing so, Merkler protested the failure on the part of the Company to have any meeting with the Union after September 9 and, particularly, the failure of Dyer to meet with the Union during the period from September 9 and 23. In view of these letters, which appear as exhibits in the record, it is my conclusion that Merkler's recollection was the more accurate and that there was, in fact, no meeting of the parties on September 21. On October 21, the parties met again at the Imperial House Motel. At this time, the Union submitted its salary proposal and some time was spent discussing it. This was the first time that the Union made a salary proposal. Merkler testified, credibly, that the Union's economic proposal actually had been ready since the preceding June 14, but, at Dyer's suggestion on that date, it had been withheld until agreement could be reached on the language of the rest of the contract. Dyer credibly testified that at this time he proposed that the Federal Mediation and Conciliation Service be called in to their meetings, but that the Union objected. On October 26, the parties met again, on this occasion at a motel in Franklin, Indiana. Dyer testified that the time was spent discussing the Union's salary proposal. He also testified that he proposed that thereafter the parties meet twice a week, but that the members of the union committee objected that they would be unable to meet that frequently. Another meeting, scheduled for November 29, was canceled by the Union on the ground that it would conflict with the unfair labor practice hearing which originally was scheduled to begin that week. In a letter dated December 2, Dyer mailed the Union a counterproposal on salaries and suggested that bargaining not be deferred while the Board hearing was in progress because that might last a long time. obviously in error, and I conclude that it was not until the meeting a month later that Dyer took this step. 24 The quotation is from Dyer's letter 25 In its brief, the Respondent refers to the fact that during this conversation with Logan Pruitt admittedly did not discuss a resumption of negotiations. This, however, was not surprising, since Pruitt was unaware that Logan had already taken over Dyer's position, and Logan did' not volunteer any information as to his own promotion. In mid-December, the parties engaged in an exchange of correspondence on wage proposals and counterproposals. On December 30, the parties met in a motel room in Franklin, Indiana. Dyer gave the only testimony as to this meeting. According to him, Pruitt and Kennedy represent- ed the Union. Dyer testified that Kennedy arrived tardily and, once having arrived, laid down on the bed in the motel room for an hour while he and Pruitt continued their negotiations. By mutual agreement of the parties, no bargaining sessions were held during the month of January 1972 when the initial trial of the instant case was held . Thereafter, the Respondent and the Union did not have another meeting until the latter part of April. In a letter dated February 9, Pruitt wrote to Dyer requesting a resumption of negotiations and proposing that a meeting be held the following week. In the same letter, Pruitt renewed the Union's request for the names of the replacement counselors whom the Respondent had hired. Pruitt stated that he needed this information in order that he could contact each of the incumbents relative to his union interests . On February 11, Dyer replied that he was unable to do anything about the Union's requests since he was leaving his job at the Center and that his replacement had not yet been named. Dyer closed this letter, however, with the promise that the Company would be in contact with Pruitt "in the very near future to propose a date" for the resumption of negotiations.24 At the hearing I. David Logan testified that he was named as Dyer's successor in the post of director of personnel and manager of industrial relations on February 15. Pruitt, however, did not learn this information until about April 4, when he had a telephone conversation with Mrs. Betty Robinson who had been Dyer's assistant. During the interim, Pruitt had a conversation with Mrs. Robinson and even with Logan, but in none of these was he told that Logan had succeeded Dyer. Thus, on February 22, Pruitt telephoned the personnel office and had a conversation with Mrs. Robinson during which she told him that Dyer's position as manager of industrial relations had not been filled. On hearing this, Pruitt asked whether he could be considered for the vacancy and she referred him to Logan. Later that day Pruitt telephoned Logan, told him of his interest in Dyer's job and questioned Logan as to his (Pruitt's) prospects of being appointed to Dyer's position. Logan's response was to tell him that he would review Pruitt's application when it was submitted in writing. At no time during this conversation, however, did Logan disclose that he himself had been appointed to succeed Dyer.25 Early in March, Pruitt telephoned the personnel office and sought to speak to Logan, but was told that he was unavailable 26 26 In a letter to Logan dated March 3, Pruitt referred, inter alia, to Dyer's letter of February 11, wherein the then manager of industrial relations promised that the Union would be contacted in the near future as to a resumption of negotiations. Pruitt testified that he not only sent the original of this letter to Logan, but that he sent copies to both Center Director Hearnton at Atterbury, and Mr. Harvey Brudner, president of Westing- house in New York City. The Respondent denied that it had ever received any copy of this letter, and Logan denied ever having seen the original WESTINGHOUSE LEARNING CORP. 29 On April 4, in a telephone call, Pruitt talked with Mrs. Robinson and then -learned for the first time that Logan had -succeeded Dyer as manager of industrial relations for the Respondent. Pruitt thereupon asked to speak to Logan, but she told him that he was not available that day; Pruitt then requested that Logan be asked to telephone him and Mrs. Robinson promised to convey this message. Logan never returned the call. In a letter dated April 7, Pruitt wrote Logan to protest the failure of the Respondent to answer prior communica- tions requesting a resumption of negotiations and to propose that meetings be scheduled for the following week and each week thereafter until a contract was finalized. Pruitt also renewed the longstanding request for a list of the incumbent counselors at the Center. In a letter dated April 13, Logan acknowledged Pruitt's letter of April 7, and proposed a meeting on April 20. Logan further stated that the Union's request for names of the current counselors had been referred to Respondent's attorney for a legal opinion. In a letter dated April 17, Pruitt acknowledged receipt of the foregoing communica- tion, and stressed the necessity of the information as to the counselors then in the Respondent's employ so that the Union could get a representative from that group involved in the negotiations. Thereafter, the Union and the Respondent had five meetings from April 20 to May 18. Davidenkoff represent- ed the Union at all five meetings. Pruitt was with him at the meetings on April 20 and 27 and May 4; Merkler was with him at the meetings on May 11 and 18. Logan and Pattison attended all of the meetings on behalf of the Respondent. Pack was also with the company representa- tives at the first four meetings. Throughout the April and May meetings between the Union and the Company, the parties discussed many articles in the various proposals that were advanced during the sessions held the preceding fall. In addition, on May 11, the Respondent made counterproposals on job security, layoff, maternity leave, contract modification, hours of work, seniority, and payment for negotiating time. In a supplement to its original contract proposal, the Union had proposed that: (1) the Company abide by the code of ethics of the American Personnel and Guidance Association as to the obligations of counselors to the corpsmen; (2) counselors be subject to discharge only for morals violations, criminal violence, or violations of the ethical standards of the American Personnel and Guidance Association; (3) a supervisor over the counselors, to be known as a manager, would be appointed from their ranks and would report directly to the Center director; (4) a human rights commission would be established at the Center; and (5) the dress code established early in Mr. Heamton's regime for corpsmen and staff would be rescinded.27 There was a conflict in the testimony as to the extent to which the Union, during the April and May meetings, urged the adoption of the foregoing. Thus, Merkler testified that at the meeting on May 11 he told the which was addressed to him . Pruitt testified that he mailed the three different letters from a rural route mailbox near his home. However, none of these letters was certified or registered . Consequently, I conclude that even though Pruitt apparently mailed this correspondence, on or about March 3, as he testified, there is no persuasive evidence in the record that any of these company representatives that the supplemental section of the Union's proposed contract was not intended for negotiations, but rather was included in order to make the Respondent aware of certain philosophies which the union members had. Logan, on the other hand, testified that at no time did the union representatives state that they were dropping any section of their proposed contract. It is my conclusion that, in fact, the Union did not withdraw or delete any of the aforesaid provisions in their contract proposal. Davidenkoff testified, credibly and without contradic- tion, that at every meeting the union representatives questioned the Respondent's delegation as to when they would supply the Union with the names and addresses of the counselors working at the Center. Finally, in a letter dated May 24, 1972, Logan sent to Pruitt the names and addresses of nine counselors then in the Respondent's employ. E. The Status of the Sympathy Strikers 1. The Respondent's action as to the counselors As found earlier herein, when the Carpenters Union began its strike on July 7, the 13 counselors then in the Respondent's employ joined the work stoppage. In a letter dated July 7, and sent via registered mail to each of the counselors, the Respondent notified them as follows: In violation of Westinghouse Company policy and in the absence of any negotiated contract with an organized counselor body, you were absent from your work station on Wednesday, July 7, 1971. Therefore, in accordance with company policy, you will not receive payment for this day since you chose not to come to work. Let this letter serve as a warning that should you, as a Westinghouse Learning Corporation (Indiana) employ- ee, fail to show up for work as scheduled tomorrow, July 8, 1971, and check in with your immediate supervisor at your normal work station, you will be replaced effective July 8, 1971. None of the 13 counselors returned to work on July 8 and since that time none has been reemployed by the Respondent. At the trial, the personnel folder of each counselor was the subject of an extensive cross-examination of Dyer while he was on the stand. On each of the 13 envelopes the personnel office had written the penciled notation, "Termination," followed by the date "July 8, 1971," the day that the counselors were ordered to report for work or be replaced. As found earlier, in a letter dated July 27, the Respondent notified all counselors that "because of [their] status," they were requested to return their identification cards, office keys, and government drivers' licenses to the letters was ever received by the addressees. 27 The Respondent describes the foregoing as nonbargainable issues More properly, they were nonmandatory items for bargaining, that is, matters as to which the parties could bargain should they desire, but as to which the proponent could not insist to the point of impasse. 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD personnel office. In another letter, dated August 5, Dyer notified the counselors that their vacation paychecks were ready at the security office. When each counselor appeared to claim such pay, he was given his check only after signing a written acknowledgment that it was a final payment from the Company. Early in August several of the counselors applied to the Indiana Employment Security Division for unemployment benefits. This necessitated a response from the Company as to their status. In an "Eligibility Information Report," dated August 3, and filed with that state agency,28 the Respondent declared that counselor Robert Arms was separated on July 8, "because of failure to report to work ... as directed." In a response to the Employment Security Division, dated August 12, as to claims filed by Carolyn Clark, Norman Merkler, Harish Pandya, Pence Pruitt, and Philip Waggoner,29 the Respondent requested a hearing before a referee on the ground that the aforesaid counselors had been "terminated for failure to report to work on July 8, 1971 as directed...." 30 At the trial, the Respondent offered in evidence a summary sheet listing the replacement counselors hired and their hire dates during the period in question. Copies of the supporting documents from which this summary was prepared were also received in evidence. With one correction as to hire dates,31 this exhibit sets forth the following sequence as to the hiring of replacement counselors: Date Date of Replacemt. Source of Hire or Rept. work Counselor Replacement32/ Replacemt . Trans. 1. Paul Sechrist Robert Fersch Transfer 7/8 7/8 2. Carolyn Clark Floyd Bridges Transfer 7/8 7/8 3. Loren Hall Alfred Davis Transfer 7/9 7/9 4. Philip Waggoner Willie Maxwell Rehire 7/9 7/9 5. Sergei Davidenkoff Edward Vance 33/ Promotion from Res. Adv. 7/12 7/12 6. Gerald Morris Gerald Sears New Hire 7/16 7/16 7. Harish Pandya Robert Stewart New Hire 7/19 7/19 8. Pence Pruitt Claude Burch Transfer 7/19 7/19 9. Stewart Northrup James Montgomery New Hire 7/23 8/6 10. Norman Merkler James Reese New Hire 7/26 7/26 11. Robert Brown Johnny Dixon New Hire 7/28 8/9 12. Robert Arms George Weathers New Hire 7/29 7/29 13. Willard Kennedy Daniel Krivoshia Rehire 8/3 8/3 28 The report was signed by Betty Robinson, personnel administrator under Dyer. 29 In the record, Waggoner is also referred to as "P Waggoner" and sometimes as "Mike Waggoner." 30 The reply to the Employment Security Division was signed by James Worthall, the Respondent's supervisor of accident and fire prevention. 31 On the original exhibit, Johnny Dixon is listed as having been hired in a replacement for Robert Brown on July 20. The other exhibits received along with the summary sheet , however, disclose that the foregoing date referred only to the time that Dixon was offered employment . A letter to Dixon, bearing that date and sent from Dyer's office, asked that Dixon let the Company know by July 30 as to whether he would accept this offer. Another exhibit on Dixon's employment, entitled "Employment Requisition Form" is dated July 28, and indicates that Dixon had accepted the foregoing offer and would start to work on August 9. At the bottom of this card there appears the notation "O.K. Robert A. Dyer 7-28-71." From this latter document it is apparent , and I find, that Dixon made no commitment to accept the Respondent's offer until about July 28. Consequently, Dixon cannot be considered as a permanent replacement until this latter date. H & F. Bench Co., 188 NLRB 720, enfd. as to this point 456 F.2d 357, 361-362 (C.A. 2, 1972). James Montgomery, fisted as a replacement for Stewart Northrup, was offered a job on July 23 and did not report for work until August 6. However, from the evidence in the record , it appears that Montgomery Iaccepted the job offer from the Respondent on the same date it was made. Hence, he should be considered as having committed himself on July 23 to report for work early in August. 32 A comparison of the replacements named on the summary sheet and the personnel data that was offered by the Respondent to support that summary discloses other changes which should be made in the interests of ;accuracy. Thus, whereas the summary sheet describes Montgomery as the replacement for Northrup, other personnel data attached to the exhibit refers to the former as a replacement for Davidenkoff . Similarly, this same data names Knvoshia as the replacement for Northrup, rather than Montgomery, Reese as the replacement for Pandya rather than for Merkler, and Vance as the replacement for Kennedy rather than Davidenkoff. However, in view of the conclusions set forth later in this decision , it is not necessary to reconcile these differences between Resp. Exh. 27 and the data from which that exhibit was compiled . Consequently, except for the one change as to hire dates referred to in the preceding footnote , I accept the names of the replacements that appear on this exhibit as the names of those who replaced the specific counselors listed on that document. 33 On the "Authorization for Change in Payroll" form for Vance, there appears the notation "Promotion from Resident Advisor to position of Counselor. Will be brought to minimum of code after 30 day evaluation !period" (Emphasis supplied.) From this latter phrase, it would appear that, initially, Vance was not a permanent replacement , and that, in fact, he was given the transfer to Davidenkofrsjob on a probationary basis. WESTINGHOUSE LEARNING CORP. 31 The General Counsel contends that the Respondent terminated all of the counselors on about July 8 when they remained away from work along with the carpenters and that such terminations constituted an unlawful discharge of the counselors for having engaged in protected concert- ed activity. The Respondent denies this allegation and ,avers that the counselors were treated as economic strikers who were replaced before they sought reemployment.34 To a recapitulation of the- relevant evidence we will now turn. As found earlier, on July 7 when the counselors first met with Dyer after the strike began, he told them he would not .meet with the union representatives while any of them remained on the picket line. On July 14, the Respondent's security office refused to permit the counselors to enter the premises of the Center ,for a bargaining session with Dyer. While they awaited word from Dyer as to whether he would see them, they were given permission to pick up any personal possessions still in their offices, but they were accompanied by guards from the security office while they did so. When, at last, Dyer agreed to meet them, he told them they had been replaced and that he could not consider them as the bargaining agent for their replacements. He further told the union committee that the duties of the striking counselors were being handled by replacements and that 'thereafter none of the strikers would be allowed to set foot on the Center. At the same time, Dyer refused then, as well ,as later, to disclose how many had been replaced. From the data supplied by the Respondent at the trial and set forth above, it is manifest that, even from its own records, on July 14 no more than 5 of the 13 counselors had been replaced, and that 1 of these 5 had been transferred to a (counselor position on probation.35 On July 23, Merkler telephoned Dyer to ask whether the counselors could cross the Carpenters picket line and return to work. Dyer advised against such action and told ,Merkler that since the counselors had been replaced there was no work for them. At that time, from records the Respondent introduced at the trial, it appears that by July 23 replacements had been secured for only 9 of the 13 counselors. On August 3, when the Carpenters strike was settled and the picket line removed, the counselors returned to the Center and asked Dyer for reemployment. Dyer testified that he told them all that they had been replaced and that there was no work for them. Yet, from the chart submitted by the Respondent and set forth above, it is manifest that even then replacements for Northrup and Brown had not reported for work and would not until Augu- 6 and 9, respectively. It is apparent from the Respondent's course of conduct ,toward the striking counselors that after July 8 it treated them as former employees who were off the payroll and who had no prospects of reemployment. There is no other explanation for their being barred from the Center by security personnel when they arrived for a scheduled 34 In an economic strike, the employer has a "right to protect and continue his business by supplying places left vacant by strikers And he is not bound to discharge those hired to fill the places of strikers, upon the election of the latter to resume their employment, in order to create places 'bargaining session with Dyer on July 14, or for their being told by Dyer on that date that all had been replaced when, in fact, at that point replacements had been secured for only 5 out of 13. Thereafter, on July 23, when Merkler inquired as to whether any counselors could cross the picket line and return to work, Dyer discouraged any such action and reiterated the claim that all their jobs had been filled, notwithstanding the fact that, from its own records, at that time replacements had not yet been secured for four of the counselors. In a letter to all the strikers, dated July 27, and mailed by the Respondent at a time when two counselors still had not been replaced, all the striking counselors were notified that "because of [their] status" they should immediately return all identification cards, office keys, and related items. Later, in the month of August, in its report to the Indiana Employment Security Division as to the claims for unemployment benefits made by several of the striking counselors, the Respondent, in effect, described them as dischargees when it stated that all had been terminated on July 8, for having failed to report for work as directed. On the basis of the findings set forth above, I conclude that this, in fact, was what the Respondent did; namely, discharge all the counselors on July 8 when they did not return to work as directed in the Respondent's letter of the preceding day. Since, at that time, the counselors were away from work out of sympathy for the Carpenters and in response to the picket line activity of that union, they were engaged in protected concerted activity. This action of the Respondent consti- tuted a discharge of the counselors for striking and was a violation of Section 8(a)(3) and (1). 2. Eligibility of the strikers for reinstatement The loyalty issue As economic strikers who were discharged for striking, all of the 13 counselors are entitled to their formerjobs, or substantially equivalent positions, unless by misconduct during their concerted activity they forfeited that right. The Respondent contends that some, at least, engaged in such prohibited conduct. These cases will now be consid- ered. (1) Merkler and Pandya In letters dated August 9, 1971, and sent to Norman Merkler and Harish Pandya, Center Director Hearnton notified both of them that they had been discharged "as a result of disloyalty and inciting remarks made to certain Corpsmen urging them to rebel." 36 The incident out of which this action arose occurred on July 14, when Merkler, the union bargaining committee, and Pandya, were at the lobby, or entrance room, of the security office, awaiting an opportunity to meet with Dyer. As found earlier, the union members were at this site for an hour, or more, while they awaited release from the guards for them " N L R B v Mackay Radio & Telegraph Co, 304 U S 333, 345-346(1938) 35 Viz, Vance, see fn 33, supra 36 The quotation is from the Respondent's letter 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so that they could proceed to their meeting with Dyer. During this period, a number of corpsmen passed through the lobby. The Respondent alleges that Merkler and Pandya talked with two of these corpsmen and while doing so urged them to foment a riot and burn the buildings at the Center. In consequence, the Respondent contends that both have disqualified themselves for reinstatement under any circumstances. Gregory Hill and Armand Curtis, two 18-year-old corpsmen, testified that on the day in question they were in the lobby at the security office and that, while there, Merkler engaged them in conversation. According to Hill, after introducing himself, Merkler inquired as to how they were being treated and then suggested that if they were dissatisfied they should "have meetings . . . in order to be noticed" and that they could boycott their classes by refusing to leave the dormitories. Hill testified that when he asked if this conduct would cause some problems for him and the other corpsmen, Merkler assured him "not too much" and then went on to say that the only way "to get a lot of people to notice you is to cause some kind of corruption . . . these old buildings aren't worth nothing ... you can burn these buildings up and stuff like this. . . ." According to Hill, at this point "I looked at Curtis and Curtis looked back at me and when he [Merkler] walked off, Curtis say, man, let's get the hell out of here." 37 Hill also testified that during the course of their conversation Merkler suggested that he could arrange for them to appear on a television newscast and that they would be paid for such an appearance 38 According to Hill, on the following day, he saw Merkler outside the fence near his dormitory and, while there, the latter called out to remind him of the earlier conversation about appearing on television. Hill testified that he made no effort to respond and hurried away from the scene. Hill's testimony as to the foregoing events was corrobo- rated in substantial part by Armand Curtis, when the latter was on the stand. Whereas both Hill and Curtis were positive in their identification of Merkler, and as to the conversation had with him, that was not the case as to Pandya. Hill recalled that while he was in the security office there was another man with Merkler. At the trial, and after being shown a picture of Pandya, Hill identified the latter as that individual. On the other hand, Hill also testified that, immediately after Merkler began to converse with him, Pandya walked away. When Curtis was on the stand he could not recall that the other person with Merkler said anything, nor could he identify Pandya as being that person even after he had been shown a photograph of the latter. Pandya testified that on July 14, and while at the security office with Merkler and the other union members, he greeted several of the corpsmen who were in the lobby, but that he had no conversations with any of them. He further testified that at one point he was standing with Merkler when the latter began a conversation with one or more of 37 The quotations are from Hill's testimony. 38 During this period, Merkler and other sinkers had been successful in securing extensive television and newspaper coverage of the counselors' the corpsmen, but that he left that group almost immedi- ately thereafter and went to a water fountain some distance away. He denied having had any conversation with corpsmen at the security office that day and he denied having heard any conversation which Merkler might have had with them. He specifically denied having had any discussion with the corpsmen as to the strike or conditions at the Center. In this connection, Pandya was a credible witness. In view of this finding and the testimony of Hill to the effect that Pandya did not participate in the conversa- tion with Merkler, as well as the testimony of Cdrtis that he could not recall the person with Merkler as having said anything, it is my conclusion that, beyond a perfunctory greeting, as Pandya testified, the latter did not participate in any conversation with corpsmen on the day in question. Merkler conceded that he talked with two corpsmen, while in the security office on July 14, but he could not recall whether these individuals were Hill and Curtis. He conceded that at least one might have been Hill. Merkler acknowledged that in this conversation he suggested to the corpsmen that if they were dissatisfied they could boycott the cafeteria and engage in peaceful demonstrations or meetings. He also conceded that he might have told these corpsmen that they would have an opportunity to talk with representatives of the news media. Merkler denied that he suggested to the corpsmen that they bum buildings or anything else at the Center, and he denied that on a later occasion he had a conversation with Hill and discussed bringing television reporters to the Center. Whereas Merkler was a credible witness throughout much of his extended examination and cross-examination, his denial of Hill's testimony was not convincing. Neither was Hill as to some aspects of his testimony, most particularly that phase of it which related to his having seen Merkler outside the fence near his dormitory on or about July 15. On the other hand, as to the substance of the conversation which Hill had with Merkler on July 14, it is my conclusion that the corpsmen was credible in large measure and that, as he testified, during this discussion Merkler mentioned burning buildings at the Center. Merkler, of course, was entitled to exercise his right to free speech at any and all times. In talking with impressionable young corpsmen,39 however, the effect of comments and suggestions made by an experienced counselor may be far more telling than even direct orders. Manifestly, as a counselor, Merkler was not free to suggest that dissident corpsmen could burn down buildings at the Center. In so doing, Merkler went beyond the bounds of protected concerted activity and committed a serious act of disloyalty to his employer. N.L.R.B. v. Local 1229, I.B.E. W., 346 U.S. 464, 472 (1953); Boeing Airplane Company v. N.L.R.B., 238 F.2d 188, 189-195 (C.A. 9, 1956); N.L.R.B. v. Red Top, Inc., 455 F.2d 721, 727-728 (C.A. 8, 1972). Accordingly, it is my conclusion that the Respondent is under no obligation to reinstate Merkler. On the other hand, and on the basis of the testimony offered to support the Respondent's contention that Pandya was, equally disloyal, it is my conclusion, on the findings set, position in the stoke and of their views as to the management of the Center. 39 Hill testified that at the time of the incident he and Curtis had been at the Center about 6 weeks. WESTINGHOUSE LEARNING CORP. 33 forth earlier, that the Respondent completely failed to establish any such case against Pandya and that no credible evidence was offered to establish that he did anything that would cause a forfeiture of his right to reinstatement. (2) Willard Kennedy The Respondent contends that Kennedy disqualified himself for any reinstatement rights by his conduct with respect to a corpsman during the latter part of October. Thus, Dyer testified that on October 26, a corpsman who was absent without leave from the Center was found to be at Kennedy's home in nearby Whiteland, Indiana, and that Kennedy refused to order the corpsman to return to the Center. According to Dyer, on the morning in question, he and Zion McGlocklin, an employee of the Center, along with a third individual who was the town marshal for Whiteland, went to the Kennedy home. There they found one Clayton Jenkins, a corpsman who, while on leave, had gone to Kennedy's house instead of returning to his own home in Detroit. According to Dyer, when he and the others arrived, they found that Jenkins was there, and when he asked that Kennedy order Jenkins to return to the Center with them, Kennedy refused to do so. McGlocklin testified to the same effect. Both Dyer and McGlocklin testified, however, that on the following day Kennedy brought Jenkins back to the Center. Kennedy had been a counselor for the Center from June 1966. He testified that while so employed he was encouraged to take corpsmen to his home and that he and his wife often did so. According to Kennedy, Jenkins was a corpsman whom he and his wife had known for some time and over the weekend of October 22 to 24, Jenkins and Dennis Waterman, another corpsman, were guests in the Kennedy home. Before bringing them to their house, the Kennedys secured clearance from the security office on Friday, October 22, and on October 24, the following Sunday, they brought the young men back to the Center. According to Kennedy, on the evening of October 25, he received a telephone call from Jenkins at which time the corpsman told him that he was in Indianapolis, that he had been expelled from the Job Corps, that he was being sent back to his home in Detroit, Michigan, that he did not want to return, and that he would like to stay with the Kennedys for a few days. Kennedy testified that he and his family thereupon drove to Indianapolis where they found Jenkins at the bus station, and that they brought him back to their home. According to Kennedy, when Dyer and McGlocklin arrived the next day, he told them that it was for Jenkins to decide whether to leave and that he would not order him out of the house. Kennedy testified that the next day, Jenkins decided, of his own volition, to return to the Center, get his bus ticket and thereafter proceed to his home in Detroit. Kennedy further testified that the following weekend, Jenkins, as an ex-corpsman, came back to stay with the Kennedy family for approximately 2 weeks and that, during this period, he completed the tests for a high school equivalency diploma and then returned to Detroit. According to Kennedy, the corpsman was free at all times to leave if he cared, and at no time was Jenkins told that he had to remain at the Kennedy household. From McGlocklin's testimony, it is evident that the town marshal who accompanied him and Dyer on the morning of October 26 made no effort to place anyone under arrest. The Respondent made no attempt to establish that Jenkins had been charged with any crime. Apart from relying on their own persuasiveness, the representatives of the Center apparently had no authority to go any further on the day in question than to urge that Jenkins return with them. When he chose not to go, they withdrew. Kennedy credibly testified that he made no attempt to keep the corpsman at his home and that, under the circumstances, he felt no obligation to order Jenkins to leave. Whereas the Respon- dent has pictured this incident as a situation where Kennedy in effect was harboring a fugitive from justice, the testimony did not support any such contention. It is my conclusion that Kennedy's course of conduct at this time was blameless and that it should not adversely affect any reinstatement right he might otherwise have. (3) Pence Pruitt Pruitt was a counselor with the Respondent for several years and was president of Local 1693 of the Counselors Union from the time of its organization. The Respondent called a witness to establish that early in December 1971 and during a telephone conversation with Robert D. Grinker, then an employee of the Respondent, Pruitt stated that all the problems of the Center could be solved by "getting rid of Mr. Hearnton." Pruitt acknowledged having had a telephone conversation with Grinker at the time in question. According to Pruitt, in his discussion with the latter he said only that a "change of administration" would improve the Center. In considering the Respondent's contention, it will be assumed that Grinker's version of this conversation was a more accurate recollection of what Pruitt said. In this connection it is relevant that, at that point in time, Pruitt, as found earlier herein, had been discriminatorily dis- charged by the Respondent. Under these circumstances, it should not be considered surprising if the employee had strong views as to the Respondent's officials. It is my conclusion that the expression of such an opinion about the Center's management as was attributed to Pruitt was protected by the employee's right of free speech and that it was not conduct that would merit the denial of reinstate- ment rights to Pruitt. (4) Concluding findings on the loyalty issue In addition to the foregoing incidents involving Merkler, Pandya, Kennedy, and Pruitt, the Respondent, in its brief, extends the argument as to disloyalty to encompass a wide range of activities on the part of the dissident counselors. Thus, Merkler had frequent contacts with the news media and during the strike carried on a running battle with the Center in press reports and on television news programs. It was undisputed that during the strike he made various statements to the effect that Westinghouse was wasting the taxpayers' money as well as other comments in which he characterized the Center as a concentration camp. Certain- ly some of these remarks were on the borderline, if they did not pass beyond the limits, of protected concerted activity. 34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD However, it is not necessary to decide this issue as to Merkler in view of the earlier finding that he disqualified himself for reinstatement by his conversation with corps- men Hill and Curtis on July 14. The Respondent would find further evidence to disquali- fy the entire unit of counselors for disloyalty under the Act because of their opposition to the dress code which Hearnton promulgated, and their having filed complaints with the Equal Employment Opportunity Commission as to alleged discrimination in the enforcement of the dress code. There is no merit to this phase of the Respondent's argument. Presumptively, any employee has a right to file charges with the Equal Employment Opportunity Commis- sion. If they are baseless the charges will be dismissed and if they are meritorious that agency will prosecute. Finally, insofar as the counselors failed to cooperate with the Center in accepting the dress code which Hearnton published in the spring of 1971, the Respondent could have taken whatever disciplinary action that was necessary to insure their compliance with this condition of employment. In fact, however, the Respondent made no effort at that time to discipline any of the 13 counselors who are involved in this proceeding. Consequently, it is not now in a position to urge that their conduct prior to the strike somehow disqualified them from reinstatement subsequent to the strike. F. The Alleged Violations of Section 8(a)(5); Findings and Conclusions in Connection Therewith On May 19, the Counselors Union established its majority in a Board-conducted election. Two days later, when Merkler, on behalf of the newly elected bargaining agent, sought a meeting with Dyer, he was rebuffed on the ground that the Respondent had not been officially notified of the election results. The Employer's obligation to bargain, however, was established as of the date of the election and could not be deferred pending receipt by the Respondent of a certification. While it would appear in most cases to be a small matter, an employer acting in good faith may not refuse to discuss a prospective date for the first negotiating session until being served with a certification of the election results. In the light of subsequent events, this initial action by the Respondent demonstrated an unwillingness to accept its obligation to meet in good faith with the bargaining agent for the counselors.40 At their first meeting, and after acknowledging receipt of the certification, Dyer insisted that he had only an hour to spend on the session and that ensuing meetings would have to be held in his office. At the meeting on June 1 Dyer told the union representatives that he would have to send their proposed contract to the corporate headquarters for an analysis by the labor relations section. Almost a month elapsed before this study of the Union's proposal was completed. Parties to negotiations are, it goes without saying, entitled to rely on all the legal, economic, and other expertise available, but the need for such assistance cannot `se utilized to delay and to thwart the bargaining process. It is my conclusion that this was Dyer's objective when he told the union committee that he would be unable to negotiate further until he heard from Pittsburgh and that when he did he would accord the Union a "timely" opportunity to meet with him again. Although Dyer committed himself to meet with the Counselors Union on July 7, when that day arrived the counselors had joined in the Carpenters strike. After the members of the Counselors bargaining committee arrived at Dyer's office on that date, they were told by his secretary that the meeting was canceled and, thereafter when Dyer himself arrived, the latter told the union representatives that he would not meet with them as long as they were on the picket line. The Respondent's obligation to bargain was not suspended by the strike or by the picketing in which the counselors were then engaged?[ On July 14, when the bargaining representatives of the Counselors Union arrived at the Center for their meeting with Dyer, they were escorted to the security office by guards and detained there for an extended period until Dyer finally contacted the guard personnel and had the union delegation brought to his office. When they arrived at the latter point, Dyer told them that they had been replaced by new employees, that the Respondent was no longer obligated to meet with them as the majority representative of the counselors, and that in any event he would not meet with them while they remained on the picket line. Efforts by the union committee to secure information as to the number of persons hired as their replacements, information to which the bargaining com- mittee was entitled, were rebuffed by Dyer. The latter also told the members of the bargaining committee that, since their work was then being performed by others, they were forbidden to set foot on the Center. Thereafter, Dyer rejected all suggestions by union representatives that they cross the picket line and return to work on the alleged ground, unsupported by the facts, that their jobs had been filled and that their duties were then being performed by replacements. When the strike ended and Dyer met with the bargaining committee on August 6, he again stated, as he had at their first meeting in June, that he could spend no more than an hour with them. After 50 minutes had elapsed and agreement had been reached on only a few preliminary items such as the language in the recognition clause, and statements on discrimination and on the desires of the parties for a harmonious relationship, Dyer terminated the meeting. In doing so, Dyer again told the union conferees that he could not meet with them for another month. From September through December, Dyer met with the Union's bargaining committee approximately six more times. At these meetings, held away from the Center and at various motels, agreement was reached on several matters, but no final contract was ever negotiated. The Respondent contends that during this latter period it demonstrated a 40 See Reed & Prince Mfg Co, 96 NLRB 850, 852-853, enfd. 205 F 2d Respondent's calculated effort to avoid reaching an agreement with the 131 (C.A. I), cert denied 346 U.S. 887, where the Board stated "although the Union while preserving the appearance of bargaining." Respondent's conduct [in declining to meet immediately after an election ] 41 "The duty to bargain collectively continues even though a strike is in might be deemed equivocal, appraising it in the context of the Respondent's progress " N LR B v Deena Artware, Inc, 198 F 2d 645, 651 (C A. 6), citing whole course of conduct, we conclude that it was another aspect of the N L R B v Mackay Radio & Telegraph Co., 304 U.S 333, 345 WESTINGHOUSE LEARNING CORP. bona fide effort to reach an accord, in meeting with the Union at places away from the Center and at the convenience of the individual members of the bargaining committee . While the Respondent displayed a greater willingness to meet with the Union in the fall than it had before that time, this attitude did little to remedy the effects of its conduct during the summer, when, by resort to a variety of unfair labor practices, including the discharge of all the original members of the unit, the Union was reduced to a state of almost total impotence. On February 9, and after the conclusion of the original hearing in this case, during which the parties voluntarily suspended their negotiations, Union President Pruitt wrote to Dyer and requested a resumption of the bargaining conferences . The latter stated that he was unable to set a date because he was leaving his employment at the Center, but he assured Pruitt that "Management will be in contact with you in the very near future to propose a date." Although I. David Logan was named as Dyer's replace- ment on February 15, the Respondent's management made no effort to contact the Union as to the time when negotiations could be resumed. Notwithstanding several telephone calls to Dyer's former office, including one conversation with Logan himself, Pruitt was not apprised of Logan's appointment as Dyer's successor until April 4. When Pruitt thereafter directed a written request to Logan for further bargaining conferences, the latter responded in the affirmative and meetings were resumed. Nevertheless, the failure of Logan to take the initiative resulted in no meetings during the 2-month period from the time when Dyer promised Pruitt that the Respondent would propose a meeting "in the very near future" and April 13 when Logan accepted Pruitt's suggestion that a meeting be held on April 20. During the course of the five meetings held from April 20 to May 18, many issues were discussed by the parties and some conflicts were resolved. In all correspondence prior to the resumption of bargaining, the Union renewed and restated the demand for the names of all the replacement counselors who had been hired subsequent to the strike. When the meetings reopened, the request was stated orally on several occasions . The Respondent declined to furnish this information until May 24, when it finally supplied the Union with information which the latter initially had requested the preceding July. During that entire period, the Union, as the certified representative of all counselors in the Respondent's employ, was responsible for bargaining on behalf of not only those who had remained away from work during the Carpenters strike, but also their replace- ments. It was unable to contact the latter at work, however, because all counselors who had joined in the Carpenters strike were treated as ex-employees by the Respondent and banned from the Center.42 Neverthek,ss, the Union had a legitimate interest in being able to contact the replace- ments, not only to solicit their support, but more importantly, as their statutorily designated representative for the period of the certification year, to secure their views 35 and assistance as to the pending negotiations. Notwith- standing the legitimacy of the demand for the names and addresses of the replacement counselors, the Respondent ignored the Union's repeated requests until May 24, 1972, when it finally supplied the information which the counselors' bargaining agent had sought for over 10 months. In view of the foregoing findings, it is my conclusion that the Respondent violated Section 8(a)(5) of the Act by: (1) refusing to meet with the Union's bargaining committee, or even to discuss arrangements for such a meeting until it had been served with the Board's certification of the Counselors Union; (2) refusing to meet with the union committee as long as its members were on strike; (3) terminating all the striking counselors, including those on the Union's bargaining committee on July 8; (4) refusing on July 14 to bargain with the union committee on the ground that the Union had lost its majority and that the jobs of the strikers had been tilled by replacements; (5) refusing throughout the period from July 14, 1971, to May 24, 1972, to supply the union committee with information as to the names and addresses of replacements who had been hired to take positions left vacant by the strikers; 43 and (6) pursuing a course of conduct from the time of the representation election in May 1971, and continuously thereafter, that was designed to undermine the Counselors Union and destroy its representative status. The General Counsel conceded that the work stoppage of the counselors which began when that group joined with the Carpenters Union in a walkout on July 7 was an economic strike at its inception. In the light of the findings set forth in the preceding paragraphs, however, it is my conclusion that the Respondent converted this strike into an unfair labor practice strike by its conduct on July 7, and thereafter, most particularly when it refused to meet with the union committee as long as the counselors were on the picket line, when it refused on July 14 to meet with the same committee on the ground that it no longer represent- ed a majority in the unit, and when it terminated the counselors for striking, and thereafter refused to reinstate them. Tom Joyce Floors, Ihc., 149 NLRB 896, 906-907, enfd. 353 F.2d 768 (C.A. 10, 1965). G. Other Alleged Discriminatory Discharges; Contentions of the Parties; Findings and Conclusions in Connection Therewith 1. Glen D. Holmes Holmes was hired in 1966 to teach in the vocational training section. He remained there as an automotive maintenance instructor until his discharge on July 29, 1971. His work throughout the period from his hire until May 1971 appears to have been completely satisfactory. Throughout his employment, Robert Roush was Holmes' immediate superior. In an efficiency report on Holmes in 1966, Roush described Holmes as "a very effective instructor. Plans well ahead and follows well. Maintains 42 In their correspondence with Logan, the one-time striking counselors referred to themselves as the "Exiled 13 " 43 See Prudential Insurance Company of America v N L R B, 412 F 2d 77, 84 (C A. 2, 1969), cert. denied, 396 U S 928 (1969), United Aircraft Corp v. N L R B, 434 F 2d 1198, 1206-07 (C.A. 2, 1970), cert denied, U S 993 (1971); Standard Oil of California, Western Operations, Inc v N L R B, 399 F.2d 639, 641-642 (C.A 9, 1968) 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD discipline and has good order in his class. Recommended for promotion." In a report for 1968, a similar notation appears. In an evaluation of his performance for that year, Roush described Holmes as a promotional prospect and rated him second out of nine instructors in his group. In an evaluation report for 1969, Roush again described Holmes as a promotional prospect and placed him first among the nine instructors in his group, and second out of 16 teachers on the staff. Roush testified that these evaluation forms on each employee in the section were prepared every 6 months. However, no evaluations for any year after 1969 were produced by the Respondent. Roush testified that he thought that there were evaluations of Holmes prepared subsequent to 1969, but that he was unaware of what was done with them. Robert A. Dyer, director of personnel and manager of industrial relations for the Respondent, testified that all evaluation forms were kept under his immediate supervision. He had no explanation, however, for the absence of such forms from Holmes' file for the post-1969 period. Holmes' starting salary was $717 a month. At the time of his discharge, he was being paid $959. In addition to having been the recipient of various general increases during the course of his employment, Holmes received a 4- percent merit increase in October 1967, a 4-percent merit increase in April 1968 , and a 5-percent merit increase in September 1970. At the trial, the Respondent attacked Holmes' employ- ment record with testimony as to three different incidents which occurred in his classroom during the period 1967 to 1970. In June 1967, Holmes received a 3-day disciplinary layoff after a fight between two corpsmen occurred in his class. According to Holmes, a dispute arose between two corpsmen during the class and he had to intervene to keep them from injuring one another and then to keep one of them from injuring him. Roush conceded that this incident involved an occasion when Holmes attempted to stop two corpsmen who were fighting. In April 1970, Holmes received another 3-day suspen- sion. According to Holmes, one Gleason, a corpsman in his class, was disrupting the other students and, when admonished and told to leave, Gleason struck Holmes with a chair and broke the instructor's arm. Holmes denied that he himself hit Gleason at any time during the attempt to bring the corpsman under control. According to Holmes, Roush subsequently told him that the suspension was given to prevent future legal action. Although at the trial in the present case Roush testified that his investigation of the incident showed that Holmes was in error, he did not deny the foregoing comment which Holmes attributed to him. Roush also conceded that Holmes suffered a broken arm as a result of the encounter and that Gleason was immediately transferred out of the automotive section to the food service training area where, about 3 weeks later, Gleason was terminated for drawing a knife. It is significant that in October 1967, and after the above-described incident which occurred in June of that year, Holmes was given a 4-percent merit increase, and in September 1970, notwithstanding the episode involving Gleason the preceding April, Holmes was awarded a 5- percent merit increase. The third incident about which the Respondent offered testimony occurred on or about September 25, 1970. At that time, another corpsman, one Hoffman, became involved in an argument with Holmes after the latter gave him a failing mark for having cheated on an examination. Holmes testified that after he refused to change the mark Hoffman struck him and that, before he himself returned the blow, other corpsmen surrounded Hoffman and escorted him from the room. At the present trial, Roush testified that he had no firsthand knowledge as to what occurred on this occasion. He also acknowledged that at the time of the altercation Holmes' arm was still in a cast from the earlier episode which had occurred in his classroom and that, although Holmes was suspended pending an investigation, Holmes lost no pay because of the suspension. Insofar as the foregoing incidents present a picture of violence far out of the ordinary in the normal classroom, they should be viewed in the light of the total picture as to conditions at the Center during the period in question. Thus, in the Department of Labor report, issued in April 1971, a description of the social system at the Center is set forth as follows: a constant state of tension exists which could erupt into overt group violence at any time (and occasionally does). Individual acts of violence are commonplace and stem from a variety of causes-gen- eral frustration, racial tension, criminality, etc. In light of the foregoing evidence and, in particular, the merit raises which Holmes received shortly after the incidents of June 1967 and April 1970, and the fact that Holmes lost no pay during the investigation of the incident in September 1970, I conclude and find that at the time each occurred the Respondent did not attach any deroga- tory or untoward significance to Holmes' conduct or involvement in them. In the fall of 1970, the Atterbury Federation of Vocational Teachers (herein called Federation or Union) began an organizational campaign among the vocational teachers at the Center. A representation petition, seeking recognition of that Union for a unit of vocational teachers was filed on November 2, 1970. Pursuant to that petition, an election was held on January 13, 1971, which the Federation lost. Objections to conduct at that election resulted in the election being set aside. Another election was held on June 22, 1971. Holmes was active throughout the organizational cam- paign. He credibly testified that he was designated to act as a trustee for the automotive section of the Union and that he passed out authorization cards and collected dues. According to Holmes, at that time there were 14 vocational teachers in the automotive section and during the winter of 1970 and spring of 1971 he solicited 12 of that number to sign authorization cards. Holmes testified that on a number of occasions from January through June 1971 Supervisor Roush questioned him about the Union. According to Holmes, early in January and while in the shop, Roush asked him, "How's WESTINGHOUSE LEARNING CORP 37 the Union getting along?" and, after he gave a noncommit- tal response, his supervisor stated ". . . well . . . I hope you fellas [sic] know what you're doing . . . if Union is voted in, I am sure that you will lose benefits that you now have... Holmes testified that early in June Roush questioned him as to the forthcoming election and, after he again gave a noncommittal answer, Roush made the statement "there's not an instructor here that we don't have enough on to remove. ..." According Holmes, he himself then expanded on Roush's statement by saying that the same comment could be applied to everybody in management. Holmes testified that after he made this remark Roush added ". . . be that as it may . . . I think all of the older men here will be gone by October."44 Holmes testified that on or about June 3, and after he returned from a 2-week vacation, Roush asked him whether he had been out "canvassing the labor market while . . . off on vacation?" According to Holmes, after giving a negative answer, he asked Roush why he had asked the question and his supervisor replied, "I just wondered . . . how the job situation was...." Holmes further testified that on numerous occasions during the following weeks Roush asked him how he thought the election would "turn out." 45 Roush categorically denied ever having questioned Holmes as to the Union and denied ever having mentioned the subject to this employee. Roush, however, in my opinion, was a far from convincing witness. It is my conclusion, based on the testimony of both these individu- als and their comparative demeanor while on the stand, that Holmes was the more credible of the two and that these conversations with Roush occurred substantially as Holmes testified.46 I conclude that it was intimidatory and a violation of Section 8(a)(1) on the part of the Respondent for Supervisor Roush to question Holmes about the election in June and, in that context, state that "there's not an instructor here that we don't have enough on to remove," ask Holmes whether he had been "canvassing the labor market while . . . off on vacation," and tell Holmes "I think all of the older men here will be gone by October." Holmes testified that the day before the second election J. J. Burke, director of I training programs, gave a speech to all the vocational instructors. According to Holmes, at that time Burke enumerated the benefits they then enjoyed at the Center and thereafter he proceeded to discuss the forthcoming election. Holmes testified that Burke told them that he did not like unions, that if the Union won the employees would lose benefits they had at that time, and concluded his speech with a request that his audience vote "no" in the election. Roush testified that he could not recall having heard Burke speak to .he employees before the election. Burke himself, however, was never called to the stand. Holmes' testimony as to this incident was credible. Since it was credible as to the remarks attributed 44 At this point in his examination, Holmes was asked the following question and gave the answer which appears below Q What did you say, if anything? A I didn't say anything I was one of the older men 45 The quotation is from Holmes' testimony 46 This is my conclusion as to Holmes' credibility on the foregoing issues, to Burke, I find that Burke made such a speech to the vocational instructors. However, Holmes conceded that the speech might have been made before the first election in January, rather than the second in June. If this was the case, the supervisor's remarks were made beyond the 10(b) period and no unfair labor practice findings can be made thereon. Because of this ambiguity in Holmes' testimony as to the date, I will recommend dismissal of the allegation attributing an unfair labor practice to Burke and the Respondent in this connection. Even assuming that Burke made this speech before the January election, it is, of course, still relevant background evidence as to the antiumon attitude of a high-ranking official of the Respondent with managerial responsibilities for the section where Holmes was employed. Early in June, the Respondent placed Holmes on probation for 30 days and, on July 29, it discharged him. The General Counsel contends that these acts were discriminatonly motivated and in violation of Section 8(a)(3) and (1). These allegations are denied by the Respondent in their entirety. To the facts in connection therewith, we will now turn. On Friday, May 14, Holmes went on a 2-week vacation. The following Monday morning, Supervisor Roush, James Worthall, the Respondent's supervisor of accident and fire prevention, and Charles Williams, manager of vocational education, inspected Holmes' shop and classroom. Prior to departure for his vacation, Holmes and his class had begun a painting and cleanup project in his shop. This was only partially completed at the time he left, and when the three management officials visited the premises on May 17 they found a scene of considerable disarray. Pictures of the shop were taken which were introduced at the trial. Worthall testified that upon discovering the disorderly condition of Holmes' shop he ordered Roush to have it cleaned immediately. Notwithstanding the alarm which he manifested at the trial as to the situation in Holmes' classroom, he conceded that he did not thereafter check back with Roush to ascertain whether Roush had cleaned it. In fact, Roush did nothing about the matter at the time. It was not until several weeks later, when Holmes returned from his vacation, that Holmes himself and his students completed their painting and cleaning project and restored the shop to normal.47 Roush acknowledged that no pictures were taken of any other instructor's area on May 17, or later. Immediately after Holmes returned from vacation, Roush gave him a letter, dated June 3, which enumerated all the deficiencies which he, Worthall, and Williams had noted on May 17 in Holmes' work area. The letter concluded with the notice that Holmes was being placed on probation for 30 days and with the threat that other disciplinary action might be taken. At the trial Roush testified that in April or May he had given instructions that all classrooms would have to be neat and orderly at all times and that about 2 weeks before notwithstanding an adverse finding as to Holmes' testimony on the matter of his age, infra 47 At the trial, Worthall conceded that he did not realize that, in fact, subsequent to his inspection , Holmes' shop had not been cleaned until the latter returned from vacation 38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Holmes went on vacation he talked with Holmes about painting his shop. The painting which Roush ordered was dependent on Holmes being supplied with the paint. Holmes credibly testified that , whereas on several occa- sions in past years the unavailability of paint had caused him to buy the necessary supplies out of his own funds, this time he waited for the paint which Roush assured him had been ordered. According to Holmes, it only arrived a few days before his vacation and at a point when it was not possible to complete the paint job before his departure. At the time he left the shop to go on his vacation , he locked the doors and the building remained unused until he returned. Holmes credibly testified that prior to this incident he had never been reprimanded for not keeping his shop and classroom in good condition, and that on numerous occasions Roush had complimented him on the appear- ance of the premises . Roush conceded that "a major part of the time" 48 Holmes had kept his shop neat and clean and that this had been true throughout the approximately 5 years that Holmes had been under his supervision . He also corroborated Holmes' testimony that in past years Holmes had used his own money to buy painting supplies to maintain his shop and classroom in a clean and orderly fashion. On July 16, a Friday, Holmes had an accident while conducting a class on the mechanics of ahgmng the rear wheels of a Volkswagen automobile 49 At the outset of the demonstration , Holmes told the class of approximately 20 corpsmen that the procedure he was about to demonstrate was an inexpensive way to correct a defect and would not normally be performed in a commercial shop because the emphasis there is on selling parts and more money would be made in replacing the used parts than in attempting to repair those which had been worn or damaged. In order to perform the alignment operation , Holmes placed an hydraulic jack in a horizontal position under the car and began to apply pressure on the rear wheels. Holmes himself was under the car operating the jack, while a corpsman named Earnest Hayes stood to one side of the car and assisted him in holding the jack . While so engaged the jack slipped and struck Holmes in the mouth, breaking one of his teeth and loosening two others . Various witnesses for the Respondent asserted that Hayes was also injured, but no conclusive evidence was offered to establish the truth of this assertion. Immediately after the accident Holmes suspended his class and called Roush. Upon arriving at the scene, Roush took Holmes to the Center infirmary where, after prelimi- nary treatment and first aid, he was sent to a clinic in Indianapolis. Holmes, at that point, was well enough to drive his own vehicle to Indianapolis that afternoon. He returned to work the following Monday morning. On July 23, the following Friday, Roush told Holmes that Dyer, the manager of industrial relations, had ordered that Holmes be suspended without pay, pending an investigation of the accident which had occurred on July 16. Thereafter, in a letter dated July 29, Roush notified Holmes that, as the result of an investigation of the aforesaid accident, he was being terminated as of that date. At the trial, Roush testified that in his opinion Holmes had shown "very poor common sense" 50 in attempting to straighten the Volkswagen wheels with an hydraulic jack, and that, in any event, an hydraulic lift known as a portopower jack, rather than the vertical jack which Holmes had used, should have been employed. Worthall, the director of safety and fire prevention, testified as to the investigation which he made of the events on July 16, and which included interviews with corpsman Hayes and another corpsman present at the scene. Both Worthall and Roush testified that corpsman Hayes was injured in the accident and taken to the infirmary. However, no credible testimony was offered which would establish that Hayes had been injured in any way. Worthall testified that he took Hayes to the infirmary, but stated that he did not have any knowledge as to what was done for the corpsman while there because the medical records were confidential and he could not see them. Roush testified that he spent 2 hours at the infirmary with Holmes on the afternoon in question and during the same time that Hayes was purportedly there, but he conceded that at no time that afternoon had he seen Hayes at the infirmary. Holmes likewise testified that he never saw Hayes at the infirmary that afternoon. Roush testified that he assumed a medical report had been made on Hayes, as to any injuries incurred, but that he himself had never seen such a report. Counsel for the Respondent conceded that Hayes was still a corpsman at the Center. Hayes, however, was never called as a witness for the Respondent and no explanation was offered for not calling him. Nor did the Respondent attempt to offer any medical report from the infirmary records of the Center as to what injury, if any, Hayes had sustained. In the light of the foregoing, it is my conclusion that any injury which Hayes received was very superficial, if, indeed, he incurred any at all. Worthall testified that the hydraulic jack which Holmes had used should never have been employed, but he conceded that he himself had no experience in frame alignment. Roush likewise testified that Holmes should not have used the jack in question, and that he should have used what was known as a portopower jack. Holmes, however, credibly testified that the two portopower jacks in the shop had been in need of repairs and unusable for months, so that he had no other equipment to use for the job in question. Roush conceded that very likely the portopower jack he had in mind was not available for Holmes when it was needed. Whereas the Respondent endeavored to establish that Holmes should never have used an hydraulic jack while working on the Volkswagen, the job description for Holmes, a copy of which was received in evidence, explicitly states that one of his duties was to teach corpsmen how to align , or straighten, auto frames using hydraulic jacks.51 The Respondent's rules of conduct provide that a willful 48 The quotation is from Roush's testimony . 50 The quotation is from Roush 's testimony. 19 Normally alignment involves work on the frame of an automobile, but 51 This document was known as the Respondent's "Vocational Training a Volkswagen has a unitized body and no frame . Hence the alignment Instructors' Procedures Manual " adjustment had to be made on the rear wheels. WESTINGHOUSE LEARNING CORP. first violation of the safety rules may be punished with a 3- day suspension without pay. No more drastic penalty is provided. The procedure which Holmes followed on the day in question may not have been, on the basis of hindsight, the best he could have used. On the other hand, it was not as self-evident a violation of the safety rules as the testimony of Worthall and Roush would indicate. Thus, Holmes credibly testified that he had used this procedure successfully before, and Roush conceded that he knew about the work which Holmes had done in this connection.52 It is significant that in the extensive investigation which Worthall and Roush conducted of this incident neither one of them bothered to discuss the matter with Holmes to secure his version of what occurred. Holmes credibly testified that never before had he been reprimanded for a violation of the safety regulations at the Center, and Worthall conceded that he could recall no other employee who had been discharged for a first violation of the Center's safety rules. As found earlier herein, Holmes had a good work record, which over a 5-year period had resulted in a number of very favorable yearly and semiannual evaluations and a series of merit increases. When the Union began its drive among the Respondent's vocational instructors Holmes took an active role in the campaign to organize them. There were only 36 vocational instructors in the Respon- dent's employ and of this number 14 were in the automotive section under Roush's supervision. From Roush's interrogation of Holmes as to the Union's efforts and his questions as to what Holmes anticipated the election results would be, it is inferable, and I find, that Roush and the Respondent were well aware of Holmes' participation in the organizational campaign. Roush's interrogation of Holmes in June and his comments to the employee during this period that "there's not an instructor here that we don't have enough on to remove," that "all of the older men here will be gone by October" and his questioning of Holmes after his return from vacation as to whether he had been "canvassing the labor market" have already been found violations of Section 8(a)(1). These remarks by Supervisor Roush also serve to shed light on the intensive and unusual investiga- tion by Worthall, Roush, and Williams of Holmes' shop area immediately after the employee left on his vacation, an investigation that was not extended to any other instructor's area at that time. These remarks are also significant background to the subsequent investigation by Worthall of Holmes' accident in July, when, although only Holmes was injured, and no credible testimony was offered that anyone else was hurt, Holmes was summarily discharged for an alleged violation of safety precautions. In view of the fact that, prior thereto, Holmes had never been reprimanded for violating the Respondent's safety rules, and the fact that the Respondent's own rules of conduct provide only for a 3-day suspension for a first violation, I conclude and find that the punishment meted out to Holmes was motivated more by the Respondent's antipathy to his efforts at assisting the Federation than by concern about his alleged violation of its rules on safety. It 39 is my further conclusion that the 30-day probation imposed upon Holmes in June was similarly motivated. Consequently, by both actions the Respondent violated Section 8(a)(3) and (1). The Issue as to Holmes' Correct Age On about August 4, 1971, and after his discharge by the Respondent, Holmes filed an application for unemploy- ment insurance with the Indiana Employment Security Division. On this form, Holmes gave his date of birth as December 6, 1905. In 1966, when he had applied for a job with the Respondent he had given his date of birth as December 6, 1911. The latter application carried the conventional language providing that any false answer on the application would be ground for discharge. In due course, Holmes' application for unemployment insurance came to the Respondent's attention. As a result, early in August, Worthall initiated an investigation as to the true date of Holmes' birth. At the trial, evidence was offered which would tend to establish that Holmes had, in fact, been born in 1905, rather than 1911, and that various other dates on the application as to when he attended elementary school and high school some 40 years earlier were incorrect. On cross-examination, Holmes testified that he did not know the correct date of his birth and that it was not until some time in the 1960's and after he had made a check on the correct date of his birth in connection with his application for an insurance policy that he concluded that he must have been born in 1905. He explained that it was with this information at hand that he gave the latter date as the year of his birth when applying for unemployment insurance in August 1971. Holmes was not a convincing witness in this connection. For some while, Westinghouse has had a policy of mandatory retirement at age 65. With that knowledge, it appears to me that, when Holmes was applying for a job in 1966, as has many another older man when seeking employment, he represented that he was younger than was the fact, in the hopes that this would enhance the prospects of his being hired. The Respondent did not assert that misrepresentations on the employment application which Holmes filed in 1966 had had any bearing on his termination in 1971. Indeed, it could not have done so, for Holmes had been discharged for almost a week before the Respondent had knowledge as to any apparent misstatements on his original applica- tion. The Respondent asserted that the testimony as to this issue was offered for its bearing on Holmes' credibility and his eligibility for reinstatement. I have considered Holmes' testimony in this connection and have concluded that, even though it appears that on this issue Holmes was far from convincing, his earlier testimony as to the unfair labor practices here involved was more credible than that of either Worthall or Roush with which it was in conflict. Robert A. Dyer, as the Respondent's director of personnel, testified that the Company's customary retire- 52 This was the repair of another Volkswagen on which Holmes had used the same techniques as he had on July 16. 40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment age is 65, and that, in his experience at the Center, no one has ever been permitted to work after reaching that age. However, from a manual on company policy as to retirement practices which was received in evidence, it is apparent that exceptions can be made to the rule as to retirement at age 65. In any event, as to the rectification of an unfair labor practice, the Respondent cannot be permitted to set up this barrier to reinstating an employee such as Holmes whom it has unlawfully discharged. Consequently, in a later section of this Decision, provision is made for the usual remedy in a case of this character, namely, reinstatement and backpay. 2. Claudies Banks Banks was a resident advisor who was hired in April 1969 and terminated on July 9, 1971. In this position he was assigned to a specific dormitory and was responsible for the general welfare of the corpsmen in that residence while they were not in their classroom.53 In 1971 there were from 80 to 90 resident advisors in the dormitories for the approximately 2,000 corpsmen on the Center.54 In 1970, Local 512, Retail, Wholesale and Department Store Union (herein called RWDSU), conducted an organizational campaign among the resident advisors 55 In April 1970, that union was certified after having won a Board-conducted election. Sometime later, the RWDSU and the Respondent negotiated a 2-year contract which was signed by the parties on March 20, 1971. Banks was active in the organizational campaign from the outset. After the RWDSU was certified, he was chairman of the negotiating committee which met with the Respondent and eventually concluded the agreement referred to above. Thereafter he was the chairman, or vice chairman, of the Westinghouse unit of Local 512, and, in addition, at times an acting steward, chief steward, or the acting chief steward. At the time of his dismissal, he was the vice chairman of his unit. Banks was an aggressive advocate of organization and in his various capacities as a union representative he filed many grievances for his coworkers. He also filed several on his own behalf, as well as some unfair labor practice charges. Thus, in February he charged that he had been discriminatorily placed on a 30-day probationary period in order to discourage membership in RWDSU. In April 1971, and as the result of an informal settlement of this case, the Respondent agreed to transfer Banks from the supervision of Manager Ernest Burton on Campus West, to that of Manager Herb Patton, on Campus East. Pursuant to this agreement , Banks was assigned to Dormitory 1011 where he remained until his termination in July58 Both Burton and Patton reported to Ira Pack, the director of residential living, who had overall responsibility for the entire dormitory operation at the Center. Charles E. Acton, a resident advisor, testified that in February he 53 Ira Pack, director of residential living, testified that the resident advisor is responsible for the personal hygiene of the corpsmen assigned to him, the adequacy of their clothing , their punctuality in adhering to the schedule for the day , the cleanliness of the dormitory, and in general, "the overall welfare of the corpsmen " 54 This finding is based on the testimony of Center Director Hearnton. 55 Also known in the record as dormitory supervisors, the name by which attended a meeting of the resident advisors at which Pack was present along with several of the supervisory staff, According to Acton, while there he heard Pack question Supervisor Henry Ferguson, one of Banks' superiors, as to "how he was doing with Mr. Banks...." Acton testified that Ferguson replied, "Well, we got him on some trash cans or garbage cans [but] he was supposed to be in a negotiating meeting," at which point, Pack interjected "No, we cancelled that meeting. He wasn't there so he has no excuse. Write him up anyway.. . .1157 The duties of the resident advisor included supervision of the corpsmen in their morning cleanup of the dormitory and thereafter submitting an inspection report on the physical appearance of the interior of the building, as well as the grounds immediately adjacent to the dormitory. During the course of the regular 5-day week, this cleanup process was completed each day before 9 a.m. On weekends and holidays, however, this was not required and a substantially more relaxed schedule was followed. Whereas the corpsmen were still required to maintain the dormitory in good condition and to complete the custom- ary cleaning tasks, they were permitted to do so substan- tially later than on the normal weekday. On the morning of May 31, a holiday,58 Pack and Patton inspected Dormitory 1011, and thereafter, in a letter of reprimand, Patton charged that they found the residence hall had not been properly cleaned and that when they arrived Banks was in his office reading a book. In a written response, Banks denied that there was any basis for criticizing the condition of the dormitory, asserting that Pack and Patton had only inspected one of the four wings, and that this particular wing was the one in which the cleanup process had not been completed for the day. At the hearing, Banks testified to the same effect and also that the book which Patton accused him of reading was one which had been left on his desk by someone else and which he was only perusing when his superiors arrived. In the reprimand letter, Patton described the dormitory as being in an "unacceptable condition," but gave no explanation or any details as to why he had so judged it. Richard C. Watson was a resident advisor in a dormitory under Ernest Burton, Banks' former superior. In contrast with the criticism voiced by Peck and Patton when they found Banks looking at a book on their visit to Dormitory 1011, Watson testified that on that very same day Burton had inspected the dormitory for which he was responsible at a time when he (Watson) was playing cards with some of the corpsmen, but that Burton had said nothing to him. Immediately after getting Patton's letter of reprimand, Banks filed a grievance in protest. Each resident advisor was required to submit a daily inspection report on the condition of his dormitory. The report had several categories on which the advisor graded the work of the corpsmen in their cleanup duties and the they were known until sometime in 1971. ss As with other sections of this Decision, all dates hereinafter are for the year 1971, unless specifically noted otherwise. 57 The quotations in this testimony are from Acton's credible, undemed, and uncontradicted testimony. 58 Memorial Day having fallen on a Sunday in 1971 the following day was an official holiday. WESTINGHOUSE LEARNING CORP. 41 bottom of the sheet had a block for listing the total percentage scored for the- day. On June $, Banks did=not submit an inspection report for his dormitory. At the hearing he testified that at the time he did not have the proper forms needed for the preparation of the report. On June 9, however, he secured the requisite forms and submitted inspection reports for both that day and for June 8. His report for June 9 credited the corpsmen in his dormitory with having done a perfect job of cleaning up that day and he gave them a score of 100 percent. Banks credibly testified that this was not the first time he had awarded such a score, but that that week was the first occasion when he had failed to submit an inspection report daily. In a letter of reprimand dated June 10, Patton criticized Banks for having failed to submit a report on June 8 and for having listed a 100-percent score on his report for June 9. In his letter, Patton stated that he checked the condition of the dormitory later that morning and concluded that the corpsmen's efforts did not merit a perfect score. Patton concluded his letter with the comment that because of Banks' "continued laxiety [sic] in the performance of assigned duties" he was being placed on probation for 30 days. At the trial Banks credibly testified that he had never known of any other resident advisor getting a written reprimand for having failed to submit an inspection report. Richard C. Watson, another resident advisor, testified, credibly and without contradiction, that during over 2 years' experience as a dormitory manager he occasionally failed to file an inspection report when due, but that it was a lapse for which he had never been reprimanded. Banks had no more than received the foregoing reprimand when, on June 11, he was given another for allegedly posting an unauthorized notice of a union meeting on one of the Respondent's bulletin boards. The facts with respect to this incident are set forth below. In 1971, James Napier was the chairman of the Westinghouse unit for Local 512 of the RWDSU, and Banks was the vice chairman. At sometime during the spring, Napier became ill and Virgil Terry, president of Local 512, appointed Banks as the acting chairman. Later, in a letter dated May 25, 1971, Terry wrote Banks that Napier had recovered from his illness and that, effective immediately, Napier would resume the chairmanship and Banks would revert to vice chairmanship of the Westing- house unit. It appears that this letter never reached Banks and that the latter had no knowledge of this correspond- ence until late on the afternoon of June 11 when Banks visited the union office. In the meantime, on June 10, Banks had posted on a company bulletin board a notice announcing two union meetings to be held on June 18 and 21 in Building 1017 on the Respondent's premises. 'Be existing collective-bargaining contract between the RWDSU and the Respondent specifically permitted the posting of such notices provided the prior approval of the personnel manager had been secured.59 Banks testified that he secured the requisite approval from Personnel Manager Dyer, but the latter denied that this was correct. According to Banks, he and an associate, Richard Watson, went to Dyer's office on June 10 and there requested his approval to hold a union meeting at the Center and to post a notice. Banks testified that Dyer voiced his approval of this request and suggested that they call Carl Merriss, another official at the Center, as to the location of a suitable meeting place. According to Banks, shortly thereafter that day he telephoned Merriss, told him of his conversation with Dyer, and asked where the union meeting could be held. Banks testified that Merriss suggested that it be held in building 1017 and that with this information he thereupon prepared the notice which he posted on the Respondent's bulletin board later in the day. Dyer acknowledged that on June 10 Banks and Watson came to his office to inquire as to the availability of a room in 1017 and that he suggested that they contact Merriss, who was responsible for the scheduling of that facility. On the other hand, Dyer testified that Banks and Watson thereupon left his office without having mentioned the subject of a union meeting. According to Dyer, earlier that day, Claude Sullivan, chief steward for the RWDSU, had come ]o him with a proposed notice of a union meeting and at that time he approved Sullivan's notice for posting.6o Banks posted his notice on June 10. The following morning Patton sent him a letter reprimanding Banks on the ground that he had posted the notice without Dyer's approval and at a time when Banks was no longer the chairman of his union, but the vice chairman. Patton concluded by informing Banks that he was being given a 3- day furlough without pay. Banks was credible in his testimony that Dyer appeared to give his approval for a union meeting on the Respon- dent's premises. As found earlier, the collective-bargaining contract required only the oral approval of the personnel manager and it did not require that this approval be reduced to writing. On the other hand, Dyer was credible in his testimony that prior to the time that Banks came to his office Sullivan had secured the personnel manager's approval of a notice for a union meeting. Since this was for the same Union which Banks represented, and for which Sullivan was then the chief steward,61 Dyer could have assumed that one notice for the meeting was enough. In any event, it is evident that there was a conflict within the Union itself as to who was representing Local 512. Whereas Banks credibly testified that it was not until June 11 that he received the official notice from Local 512 that he had been relieved as acting chairman of the Westing- house unit, he also conceded that some time earlier Chief Steward Sullivan had told him that this had occurred. Why he chose to ignore this report from Sullivan or make no inquiries on his own is not clear from the record. At any rate, such information from Sullivan should have been enough to alert Banks on June 10 that his position as acting chairman was then in question. From Patton's letter, it is se Personnel Manager Dyer testified that the contract required that the 60 Patton testified that Sullivan's union notice was posted on the same requisite approval had to be in writing . Dyer, however, was in error in this day as Banks' and that the Respondent allowed it to remain posted. Patton's regard, for art. XVIII, the contractual provision in question , requires only testimony was not contradicted that any union notices must be approved by the personnel manager. It does 61 Sullivan had returned recently from a vacation and in his absence not require that such approval be in writing. Banks had acted as the chief steward as well as the chairman for the unit. 42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obvious that the issue as to Banks' status was known to officials of the Respondent. In any event, it was not a situation for whic t the Respondent was responsible. Banks may have assumed that Dyer gave him permission to post a notice, but from the credible testimony in the record, it is my conclusion that this did not occur. At the time that Banks appeared at Dyer's office, Sullivan had secured the personnel manager's approval for his notice of a meeting, so that it would not seem likely that thereafter he would give Banks permission to hold two more meetings without some discussion of the matter. The General Counsel alleges that the 3-day suspension which Banks incurred as a result of this incident was discriminatorily imposed. It is my conclusion, however, that notwithstanding Banks' assumption that he had secured Dyer's approval for the meetings in question, Dyer had not, in fact, granted such approval. In view of the tangled sequence of events connected with Banks ' attempt- ing to secure permission for the meeting at a time when he was no longer th' unit chairman, and the rival activity of Chief Steward Sullivan in contacting Dyer at the same time, it is my fur er conclusion that, in this instance, the General Counsel has not proved that the discipline meted out to Banks was discriminatory. On July 5, a holiday,62 Supervisor James Overfelt, the daytime coordinator for Pack, admonished Banks that at 9:45 that morning the area outside his dormitory was not clean. Banks protested to Overfelt that the area had been clean at 9 a.m. when be ,had made his inspection, but the adverse report of Overfelt was sent to Director Pack. Banks was terminated on July 9, according to the General Counsel for discriminatory reasons, but according to the Respondent because Banks failed to call the Center to state that he would be absent that day. The facts in connection with this incident will now be considered. On July 7 and 8, Banks was ill and did not report for work. On each day he, or his wife, telephoned the Center to report the reason for his absence.83 On the morning of July 9, Banks, a disabled veteran, reported to the Veterans Administration Hospital in Indianapolis for a medical examination. He was not released until about noon. Thereafter, Banks and his wife drove to the Center. On arriving there, Banks- found the Carpenters picket line at the gate. July 9 was a payday and his check awaited him at the payroll office. However, Banks was unwilling to cross the picket line to gain access to the Center. Consequently, he gave his wife a note authorizing her to secure his paycheck and also a slip signed by an official at the Veterans Hospital which explained the reason for his absence that morning. Mrs. Banks thereupon proceeded to the payroll office where she turned in the slip from the Veterans Administration, as well as the authorization from 62 July 4, 1971, having been a Sunday, the following day was an official holiday at the Center. 63 This finding is based on Banks' credible testimony. 64 Banks testified that while he was on the picket line his location was not visible from the security office . Patton testified that it was not until after Banks was dismissed that he learned that on July 9 the latter had been on the picket line. Similarly, Dyer testified that he did not know at the time of Banks' termination that the employee had been on the picket Ime. In his complaint the General Counsel alleged that Banks was discharged, inter alla, for having honored the picket line established by the Carpenters. This point, however, is not urged in the General Counsel's brief. Rather her husband, and thereafter received her husband's paycheck. In the meantime, Banks remained with the pickets at the gate.64 In a letter dated July 9, Patton notified Banks that he was being terminated, effective immediately. In the termination letter, Patton referred to the 30-day probation Banks received on June 10, the 3-day furlough for posting the notice of the union meeting, and the adverse inspection report of July 5. The letter concluded with the declaration that on that day, July 9, Banks had failed to call in with reasons for his absence and in violation of the provisions of what was known as the "Standard Operating Procedure [or SOP] manual." Both Pack and Patton testified that the immediate cause for Banks' dismissal was his failure to call in his absence on the morning of July 9. Pack testified that on the morning of July 9 he saw a report from the coordinator's office that Banks was absent and, when a check of the office personnel indicated that Banks had not called in, he concurred in a recommenda- tion from Patton that Banks be terminated immediately. The provision of the SOP manual on which the Respondent relied reads, in relevant part, as follows: Any staff member who must absent himself from his regular work shift must notify the Center OD one hour prior to the beginning of his scheduled shift. Regardless of the reason for the absence, this procedure must be adhered to in order to assure your continued employ- ment. Any staff member who is unavoidably late on the job is required to notify the Center OD that he will be late, prior to the time his shift would normally begin. In the absence of the OD, the employee will notify his Dorm. Excessive absences and/or tardinesses will result in an employee being subject to discharge as unable to meet the requirements of the job. The General Counsel contends that Banks complied with the reporting requirement when his wife supplied the payroll office with the slip from the Veterans Hospital that set out the facts as to his medical examination there that morning. This is contested by the Respondent, for, according to Dyer, there was no way in which a communication such as the Veterans Hospital report that Mrs. Banks gave to the payroll office would be circulated routinely to the other offices interested in Banks' appear- ance that day. It appears that Banks failed to comply with that provision of the rules set out above which required that he notify the Center OD65 1 hour prior to the beginning of his shift on July 9. However, nothing in the foregoing rule obviously, the reason for this change in theory arose from the fact that the collective-bargaining contract between the Respondent and the RWDSU had a no-strike clause. As a result, insofar as Banks engaged in any picketing on July 9 his activity was unprotected. N.L.R.B. v. Kaiser Aluminum, 217 F.2d 366, 369 (C.A. 9); Alton Box Board Co. Container Division, 155 NLRB 1025, 1037. However, since the Respondent's witnesses conceded that at the time they discharged Banks they had no knowledge of this activity, Banks' presence on the picket line could have had no bearing on his dismissal. 65 This was also known as the office of the day coordinator. WESTINGHOUSE LEARNING CORP. 43 would establish that failure to comply with this reporting requirement on one occasion would result in immediate termination. The rule itself states that "excessive absences and/or tardiness- will result in an employee being subject to discharge . . . . [Emphasis supplied]." Here, there was no evidence that Banks had been quilty of either extensive absences or tardiness.66 The imposition of the termination penalty in this instance must be considered in the light of the background provided by other phases of this case. During the week that Banks was discharged , as has been found earlier in this Decision, the Respondent discrimina- torily dismissed all of the counselors who joined the carpenters in the picketing which began on July 7. On that day, it was Patton who wrote to these counselors notifying them that if they did not return to work at once they would be replaced immediately . Consequently, the termination of Banks occurred against a background of extensive antiun- ion activity during that week by the Respondent. As an active union officer Banks aggressively represent- ed his coworkers and clearly incurred the enmity of the Respondent's officials. Iii February, Pack's comments to Supervisor Ferguson established a desire on the Respon- dent's part to "write . . . up" Banks for every infraction of the rules. That same month Banks filed unfair labor practice charges against the Respondent which were eventually settled with the employee being transferred from the supervision of Manager Ernest Burton to that of Manager Herb Patton . On both the Memorial Day and Fourth of July weekends, when dormitory inspection standards were customarily more relaxed , Pack, Patton, and Overfelt'saw to it that Banks' dormitory was checked and an adverse report prepared. And on June 10 he was reprimanded for having filed an inspection sheet crediting his corpsmen with having done a perfect cleanup job that day. It is arguable that, in informing the payroll office rather than the Center OD of the reason for Banks' absence on the morning of July 9, Mrs. Banks partially, at least, complied with the reporting requirement. On the other hand, even assuming that what she did was inadequate, it seems unlikely that without Banks' reputation as an aggressive advocate of the RWDSU and the well-estab- lished union animus of the Respondent , his noncompliance with the rule on reporting absences would have precipitat- ed such a swift application of the discharge penalty. Here, the Respondent's "demand for strict compliance [with the rule on reporting an absence to the Center OD] . . . is more consistent with antipathy for union activity than concern over the plant rules." N.L.R.B. v. General Industries Electronics Company, 401 F.2d 297, 301 (C.A. 8, 1968); Time-O-Matic, Inc. v. N.L.R.B., 264 F.2d 96, 102 (C.A. 7, 1959). It is my conclusion, on the facts present here, that the purported concern of the Respondent's officials with Banks' having failed to comply with the rule on reporting absences was a pretext and that the real reason for the employee'&abrupt termination was his union ee Whereas Banks had been absent on July 7 and 8 because of illness, as has been found earlier, on each day either he or his wife telephoned the Center that he would be unable to report for work. 67 The General Counsel also alleged that the Respondent's action violated Sec. 8(ax4) in that it was taken because of Bank's having filed an unfair labor practice charge with the Board in Case 25-CA-4179. However, activities. In so doing the Respondent violated Section 8(a)(3) and (1).67 H. The Alleged Discriminatory Suspensions and Harassment of the Guards; Findings and Conclusions in Connection Therewith 1. Edmund D. Hicks Hicks was a patrolman with the security department68 from the time the Respondent took over the operation of the Atterbury Job Corps Center in 1966. Prior to that time he had spent a year at the Center as a security guard with the Respondent's predecessor. On a seniority list posted by the Respondent in May 1971, Hicks had more seniority than any other guard. Hicks was an early supporter of the United Plant Guard Workers of America and its Local 4 (herein called Guards Union, or Local 4). On or about May 12, 1969, that Union was certified. Thereafter Hicks served on the negotiating committee until a collective-bargaining agreement was concluded and signed by the parties in October 1970. Subsequent to the execution of that contract and until his suspension in June 1971, Hicks was the chairman of the union grievance committee. In his capacity as a spokesman for the Guards Union on all grievance matters, Hicks represented his coworkers at all of the first three levels provided in the contract. Thus, the first level was with the captain of security, the second level was with the manager of security, and the third level was with the personnel director.69 During Hicks' tenure, numerous grievances were filed and processed through these various steps. When Center Director Hearnton began his administra- tion at the Center he was dissatisfied with many aspects of the security department. Soon after his arrival, the Department of Labor review team issued its report, referred to earlier in this Decision, and in its canvass of the security operations at the Center, the DOL was extremely critical. Thereafter, Hearnton brought William Davis and Hugh E. Cawthon to the Center, both of whom had had experience at the Breckenridge Job Corps Center in Kentucky. Late in April, Davis was promoted to captain of security and Cawthon was named to head the office as manager of security. Davis testified that, in order to meet the DOL require- ments, Hearnton ordered the new leadership to make drastic changes in the security operations at the Center. According to Davis, at the time he and Cawthon arrived, security measures were flouted by everyone and the rules were either ignored or not enforced. He testified that, in many instances, the guards were wearing improvised uniforms, with some in Air Force caps, cowboy boots, long hair, unshined shoes, and unpressed clothing. According to Davis, when he began his assignment as captain of security, Hearnton ordered that security measures were to in view of the fact that the remedy for a violation of that section is the same as that for a violation of Sec 8(aX3), no finding of a violation of Sec. 8(a)(4) is made here. 68 Also known in the record as the security division , or security office 69 The collective-bargaining agreement provided for arbitration at the last level for the settlement of disputes 44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be enforced rigidly and that the guards were to conform to the dress code which had been established for all employees at the Center. Davis and Cawthon testified that they set out to put this new policy into effect with all possible dispatch. On about April 29, Davis and Cawthon met with several of the guards, including Hicks, at which time Davis stressed the need for more discipline on the force and emphasized his intention of rigidly enforcing this require- ment. According to Hicks, at that time Davis told the assembled guards, "If I don't have a reason to fire a guard I'll make one Up." 70 Early in May, Davis promoted several of the guards who were then classified as patrolmen. On about May 5, Davis offered Hicks a promotion to lieutenant, but the employee declined. Hicks testified that during the course of his conversation with Davis on this occasion the latter told him that "he knew [Hicks] was a leader of the Union and without [Hicks] it would fall apart." Davis did not deny that Hicks was offered a promotion and he conceded having had a conversation with Hicks at the time and place in question. He acknowledged that during the course of the discussion he mentioned to Hicks that he knew that the employee was a union committeeman, but he denied having used the language (quoted above) which Hicks attributed to him. Upon a consideration of this conflict in the testimony, including the demeanor of the witnesses, it is my conclusion that the testimony of Hicks is the more credible. On the night of May 6, Hicks was on duty at the detention facility,71 where, at the time, two corpsmen named Robertson and Jones were confined. During the course of the night, both escaped from custody and returned to their dormitory. Thereafter, this escape apparently went undetected by Hicks until the dormitory manager called the security office to inquire as to why they had been permitted to return. Davis and Cawthon charged Hicks with negligence and, initially, suspended him indefinitely. However, after Union Representative Virgil Bray intervened with Dyer, this penalty was reduced to a 3- day loss of pay. The General Counsel alleges that this suspension was discriminatorily motivated. However, the evidence does not support such an allegation. It appears to me that Hicks must have been negligent and that some type of penalty was justified. Consequently, I conclude and find that the General Counsel's allegation with respect to this allegation should be dismissed.72 On about May 28, Captain Davis called several of the guards together at the security building and lectured them on the need for greater effectiveness in the performance of their duties. The meeting occurred in the public lounge at the building and several corpsmen as well as other nonguards were in the area. According to Hicks, during the 70 The foregoing quotation is from the credible testimony of Hicks which was not contradicted or denied. 71 The security office had no jail as such. Instead it had what was known as an isolation, or detention, center where corpsmen guilty of various minor offenses could be confined. It appears that as to matters involving criminal conduct under state and Federal laws the Center relied upon the intervention of the civil authorities 72 It was undenied that in October 1971, when one George Whitfield, while on duty at the detention facility, allowed three corpsmen to escape from their cells, he was given a similar 3-day suspension without pay. course of his remarks, Davis told those present, "If you can't do your job, I want you to resign. If you don't resign I'll ask you to resign. If you are 45 years old 73 and can't do your job I want you to quit and I don't give a damn about any Union." Subsequent to this meeting, Hicks filed a grievance in protest at what he testified was the embarrass- ing character of the setting at the time, since corpsmen and others were present when Captain Davis delivered his strictures. On about June 8, Hicks had a conversation with Davis in the office of the latter. Hicks testified that the object of his visit was to protest, in his capacity as grievance committee chairman, being moved to a different work shift. According to Hicks, Davis told him that he planned to move him to another shift, that he had the right to manage the job anyway he wanted and then concluded with the comment to Hicks that the Guards Union "is busted and you don't even know it." On about June 14, Hicks was given an indefinite suspension, later changed to 14 days, for allegedly having failed to obey orders when on sentry duty at the main gate to the Center. The facts in connection with this incident are set forth below. On the date in question, Hicks was on duty at the front gate when James J. Denbow and Thomas J. Mulloy, two inspectors for the Indiana Department of Labor, arrived to investigate an accident involving mowers. The visitors identified themselves and gave the name of the official at the Center whom they wanted to see. Hicks thereupon called the office of that individual and, after being told by the secretary to send the state officials to that office, Hicks did so, but not until after he had them sign the visitors' register at the sentry post and had issued them a visitors' pass. Security Manager Cawthon testified that on that morn- ing he received a telephone inquiry from the office of the director for the Center as to whether there were two inspectors from the Indiana Department of Labor on the premises. According to Cawthon, at the time this call was received, the security office had no record of any such visitors. Cawthon testified that he did not learn of their presence until after he checked with Hicks and found that the visitors in question had been allowed to enter without having been cleared through the security office. According to Cawthon, he immediately recommended that Hicks be terminated for having failed to follow the rule on visitors, but that, after some discussion, Dyer would impose only a 14-day suspension. At the hearing Dyer testified that the sole reason for suspending Hicks was because he allowed the two visitors to enter the Center without notifying the security office.74 Both Cawthon and Davis testified that, from the time that Hearnton became the director, all visitors were required to 73 Hicks testified that he is 44 years old. 74 Prior to Dyer's testimony, there was some indication that the Respondent would assert that , additionally, Hicks was terminated for having failed to complete properly the pass issued to Denbow and Mulloy The General Counsel requested that this pass be supplied , in response to his subpena The pass, however , was never produced . Thereafter, when Dyer was on the stand, he testified that the manner in which Hicks filled out the pass for the two Indiana officials had no bearing on the employee's suspension. WESTINGHOUSE LEARNING' CORP. 45 report to the security office before they could secure a pass and enter the Center. At sometime in May 1971, signs posted above the security building read, in relevant part, as follows: VISITORS WELCOME All Must Clear Thru This Office75 The Respondent did not, however, produce any written orders to the effect that the guards should require all visitors to check in at the security office before they could obtain permission to visit the Center. Burdette Richards and Clyde Smith credibly testified that prior to Hicks' suspension they had been stationed at the gate on numerous occasions and that they had followed the same practice on admitting visitors as had Hicks on the morning in question. Significantly, both further credibly testified that the day after Hicks was suspended all blank visitor passes were removed from the gatehouse and taken to the security headquarters. According to both Richards and Smith, thereafter, and for about 2 weeks, all visitors were required to secure their passes from the shift commander at the security headquarters rather than at the gatehouse. Both of these guards credibly testified that after approxi- mately 2 weeks had elapsed, the blank passes were returned to the gatehouse and the practice of issuing visitors' passes by the guard on duty at the gate was resumed. From the foregoing evidence, I conclude that whereas the security division under Cawthon had had a sign posted which appeared to require that all visitors clear through the security headquarters, there were no written rules to that effect and, in fact, the practice was quite different. It is further apparent that the guards followed the custom of checking with the office at which a visitor proposed to call and when that office indicated the visitor was expected, or otherwise cleared him, the guard issued a pass that permitted the visitor to enter. Quite obviously, on June 14, Cawthon and Davis were embarrassed when the director's office inquired as to the whereabouts of the inspectors from the Indiana Department of Labor and the security office had no record of their arrival. Immediately after Hicks' suspension there followed a period of about 2 weeks when the rule was followed rigidly and then the guards were permitted to resume the practice of issuing visitors' passes at the gatehouse instead of sending the visitor to the security office to secure the same documents. Consequent- ly it is my conclusion that prior to Hicks' suspension, the rule on visitors, as enunciated by Cawthon, was more honored in the breach then in the observance and that after the disciplining of Hicks enforcement of the i rile was maintained for only a short while, after which time the guards were allowed to revert to the former practice of issuing passes at the gatehouse. 75 Hicks testified that the signs which carried this instruction were not posted until later in the year However, Burdette Richards and Clyde Smith, two other guards, testified that these signs were posted sometime prior to June 1971 1 conclude that in this instance their recollection was more accurate than that of Hicks. 76 The quotation is from Hicks' credible testimony 77 Davis credibly testified that in his prior employment history he had been a union member for many years and had held various positions in a Hacks testified that early in July and after he returned from the 2-week suspension, Davis told him that the Union had "busted"76 him and that thereafter Hicks was not to have anything to do with the grievances which other guards might file. According to Hicks, he told Davis that the Union had not removed him from his post as chairman of the grievance committee, but that he had voluntarily resigned since he could not adequately represent the employees while suspended from his job. Hicks testified that in another conversation at about this same time, Davis told him that at the Breckinridge Job Corps Center (where Davis had served previously) there was "one stinking lousy Union in the cafeteria and there would be even less when they got through here." Hicks' testimony in this connection was denied by Davis, but I conclude that Hicks was more credible in this regard than Davis.77 For some time after the foregoing suspension Hicks apparently worked for several weeks without incident. Then, for a period of over a month, he was assigned to patrol an isolated area on the base and to make a radio report to the security headquarters every 10 minutes throughout the course of each 8-hour shift. The General Counsel alleges that this was part of a continuing program to harass Hicks because of his union affiliation. This is denied by the Respondent. The Respondent did not deny that from August 10 to September 8 Hicks was given the assignment of patrolling a remote area of the Center and that throughout his entire shift he was required to make radio reports at 10-minute intervals to the security office. Davis and Cawthon testified that there had been some suspected Klan activity78 near the Center and that since Hicks was white, whereas they and many of the others in security were black, Hicks was selected for the assignment. At one time in July there had been a cross burning, but, according to the credible testimony of Burdette Richards, this had occurred over a half mile away from the remote area that Hicks was assigned to patrol. Hicks was kept continuously at his lonely outpost for over a month. Not until Clyde Smith, then acting as the union steward, made two protests to Dyer about the treatment being accorded Hicks was the employee allowed to resume his normal duties. At the hearing, Security Manager Cawthon conceded that, to his knowledge, Hicks was the only patrolman ever required to call headquarters every 10 minutes when on duty. Neither Cawthon nor Davis was credible in relating the alleged reason for keeping Hicks on this bizarre assignment for over a month without once during the course of any 8-hour shift giving him any relief or sending a substitute. It was, as Cawthon admitted, a unique assignment, which no one else had ever had and which no one else was asked to share throughout the period from August 10 to September 8. It is my conclusion, on the basis of the foregoing evidence and the record, that this action local of the United Auto Workers of America, including that of steward The Respondent stresses this aspect of Davis' background in urging his credibility over that of the guards working for him The assessment of Davis' testimony set forth above has been reached after giving full consideration to the earlier association of this witness with the United Auto Workers 78 1 e, Klu Klux Klan 46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discriminatory and that it was designed to discourage Hicks and cause him to quit. Almost from the moment of his arrival as the new captain of security, Davis had been outspoken in his opposition to Hicks and the Guards Union. Consequently, it is my conclusion that the suspension of Hicks for 2 weeks in June was discriminato- ry, as was the isolated patrol to which he was assigned in August and September, and that the objective in each instance was to rid the Respondent of a provocative representative of the Guards Union. This course of conduct by the Respondent was discriminatory and in violation of Section 8(a)(3) and (1). Early in May, when Davis offered Hicks a promotion from patrolman to lieutenant, he told the employee that he knew that Hicks was a "leader of the Union and without [him] it would fall apart." Later that month, Davis told Hicks, to whom he had tendered a supervisory promotion only a few weeks earlier, that "If you are 45 years old [,Hicks' approximate age] and can't do your job I want you to quit and I don't give a damn about any Union." A short time later, Davis told Hicks that the Guards Union was "busted and you don't even know it." On the basis of the foregoing evidence, as well as the findings that Hicks was discriminatorily suspended in June and further discrimi- nated against in August and September, it is my conclusion that Davis' offer to promote Hicks was made primarily for the purpose of removing a union adherent from leadership in the Union and to abandon his union activities. By such conduct the Respondent further violated Section 8(a)(1) of the Act.79 2. Burdette Richards Richards was first employed as a security guard in May 1969. Thereafter his employment was continuous except for two brief intervals when he was attending school and when he was examined for military service. Early in May 1971 he was appointed a union committeeman for the afternoon shift so Thereafter he received various repri- mands from his superiors, allegedly because of long hair and unsatisfactory dress. The General Counsel contends that these reprimands were discriminatory. Richards testified that during a morning inspection on about May 12 Captain Davis criticized the length of his hair and ordered him to get it cut. According to Richards, he promptly complied with this order, but when he returned to duty both Davis and Cawthon again criticized the length of his hair. Edmund Hicks, then the chief steward, was present on this latter occasion and protested that the length of Richards' hair was satisfactory. In response, Davis told Hicks that he knew nothing about a black man's hairs' and that Richards' hair length was still objectionable. Later that day, Dyer, as the director of personnel, was drawn into the controversy when the parties met in his office. There Dyer suggested that Richards 79 The General Counsel also alleged that the Respondent discriminated against Hicks in arbitrarily assigning lunchbreaks . The evidence did not support this allegation, however, for it appeared from the testimony that the guards had no regular luncheon breaks . The General Counsel also alleged that Davis had discriminated against Hicks in forbidding him to carry a monocular, or telescope, while on duty The latter order, however, appeared to be within Davis' clear authority to prescribe items of equipment which the guards could carry, as well as the type of uniform they should wear. comply with the order for another haircut before reporting to work on the next shift. According to Richards, he complied with Dyer's sugges- tion and, after having done so, on the following day he and Hicks went to Dyer's office where Dyer told him that his hair was then satisfactory and that Richards could go to work. Richards testified that when he reported for duty later that day, Cawthon told him that his hair was still too long, but that he told Cawthon that he could not afford to get another haircut. Thereafter, Richards ignored this last order from Cawthon. Several days later and on about June 10, Cawthon announced that Richards was being suspended for 5 working days. In a letter dated June 14, and addressed to Richards, Cawthon wrote the employee that on June 10 he had appeared for duty with long and uncombed hair, unshined shoes, and dirty trousers and that, because of these deficiencies and earlier reprimands about his personal appearance, Richards was being suspended without pay until June 18. Davis and Cawthon testified at length about their problems with Richards and their demands that he appear for duty well groomed and with a clean uniform. Davis testified, and in this he was uncontradicted, that during the time in question Richards' hair was of such length that it was impossible to locate a patrolman's cap that would fit over his hair. Dyer also contradicted Richards' testimony to the effect that on the occasion in May when he and Hicks had gone to Dyer's office the personnel manager told him that his hair was then in satisfactory condition and that he could return to work. According to Dyer, he told Richards that whereas his hair appeared to meet the requirements, a final decision on the matter rested with Captain Davis. Dyer's testimony in this connection was credible. Davis and Cawthon were vested by the collective- bargaining agreement with the authority to prescribe the uniform and mode of dress for the security guards. At the behest of the Center director they enforced these require- ments rigidly. In so doing, others besides Richards were reprimanded for various infractions of the dress code. Consequently, in view of these factors, and the findings set forth above, it is my conclusion that the General Counsel has not proved by a preponderance of the evidence that the Respondent discriminatorily enforced any such regulations as to Richards. It will, therefore, be recommended that the allegations of the General Counsel to that effect be dismissed. 3. Clyde F. Smith Smith was employed as a security guard in July 1970 and served thereafter on the day shift until about June 15, 1971. In May of the latter year he was designated as the union Finally, the General Counsel alleged that the Respondent had discriminated against Hicks, Burdette Richards, Clyde F. Smith, and other guards in not assigning them to shifts on the basis of seniority. There appears to be no basis for this allegation either , for the collective-bargaining agreement is silent as to the application of seniority in the assignment of shifts. Consequently, I conclude that this allegation must also be dismissed. se The hours of the afternoon shift were from 4 to 12 p.m. 81 Both Richards and Davis are black and Hicks is white WESTINGHOUSE LEARNING CORP. 47 committeeman for the day shift. On or about June 15, he was transferred to the midnight shift82 and after 2 weeks on that assignment he was transferred to the 4 p.m. to midnight shift. The General Counsel alleged that these shift changes were discriminatorily motivated. Earlier herein, it was found that, contrary to the contention of the General Counsel, the collective-bargain- ing agreement did not require that shift assignments be made on the basis of seniority. It was also found that that same contract accorded to the Respondent the right to make such shift assignments as were dictated by manage- ment needs at any given time. The General Counsel sought to establish that Smith's transfer from the day to the midnight shift followed shortly after that employee was made a union committeeman and that the real reason for this transfer was a desire by the Respondent to penalize Smith for his identification with the Guards Union. In support of this position, Smith testified about his participation in grievance procedures both after he was made a union committeeman in May and after his transfer in mid-June to the late shift. Cawthon testified that Smith's transfer was unrelated to the employee's union activities. According to Cawthon the real reason was that Smith , as a man 60 years of age, was not able to cope with the problems which arose during the day shift among the young, able-bodied corpsmen at the Center. By way of illustration, Cawthon testified to an incident that occurred on about June 4, when he and Smith went to the scene of a disturbance at the Center where many corpsmen were milling about and where one belligerent individual had to be restrained and taken to the detention center. Cawthon testified that Smith was reluctant to become involved and, as a result, he (Caw- thon) had to take the corpsman into custody almost single handedly. According to Cawthon, after this incident he concluded that Smith could not be relied upon for the type of action needed in dealing with aggressive young corpsmen from 17 to 20 years of age who were involved in the type of disturbances that frequently arose during the daytime. He further testified that he concluded that, rather than ask Smith to resign, it would be advisable to put him on another shift where he would be less likely to encounter the type of problems common to the day shift. Davis gave similar testimony in support of the transfer in question. Whereas the General Counsel contended that Smith's transfer to the night shift on June 15 and his transfer to the late afternoon shift on or about July 1 were discriminaton- ly motivated, on cross-examination Smith conceded that on about July 8 he had a cordial exchange with Captain Davis about his work as a union committeeman and that at that time he was assured by Davis that most of the grievances which arose could be resolved in his office without further recourse to the contract. Smith further testified that, in this same conversation, Davis told him that ... the Company, or Westinghouse Learning Corpo- ration, and management would give what was common courtesy to the committeeman; that if I was unhappy on the shift that I was on at that particular time that he would arrange, or do his best to arrange, to place me on a shift of my choice. On the foregoing findings, it is my conclusion that in making the shift changes as to Smith the Respondent acted within the scope of the authority accorded management by the collective-bargaining agreement and that the General Counsel failed to establish that these changes were for any reasons other than those which were offered by Cawthon and Davis during their appearance on the stand. I. The Issue as to Arbitration At the initial hearing in January 1972, I granted a motion to dismiss all allegations in the complaint as to Banks, Hicks, Richards, and Smith and defer to the contractually provided arbitration procedures available to the parties. Collyer Insulated Wire, 192 NLRB 837. As noted earlier, on March 20, 1972, the Board reversed this ruling and ordered that the case be reopened for the purpose of taking evidence as to these allegations. At the reopened hearing and in its brief, the Respondent renewed its motion to dismiss on the basis of Collyer. To the issues thus raised, we will now turn. The RWDSU has a contract with the Respondent, effective from March 20, 1971, through March 20, 1973, that establishes a four-step procedure culminating in final and binding arbitration of all grievances involving disci- pline or discharge of bargaining unit members, as well as alleged acts of discrimination against them. From June 8 to July 20, 1971, Banks, as an employee under this contract, filed six grievances as to the reprimands, suspension, and discharge which have been discussed earlier in connection with the General Counsel's allegations in the instant case. Each of these grievances was processed through the first three steps of the contractually established grievance procedure. The parties subsequently agreed to arbitration and an arbitrator was selected. An arbitration hearing originally set for December 13, 1971, and then for January 14, 1972, was postponed because of the pending unfair labor practice trial. Thereafter, the arbitration case was set for hearing on March 6, 1972. Banks then requested a further postponement. As a result, the matter was set over until May 3, 1972. Prior to the latter date, Banks withdrew from the arbitration proceedings. In a letter dated May 11, 1972, counsel for the RWDSU notified the Respondent that, whereas Local 512 was ready to arbitrate all issues as to Banks' suspension and discharge, the employee had requested that his case be withdrawn. The Guards Union has a 2-year contract with the Respondent that became effective on October 1, 1970. This agreement likewise establishes a four-step procedure, culminating in final and binding arbitration of all grievances involving any provision of the contract includ- ing questions of discipline and discharge of unit members. Pursuant to this contractual provision, between May 10 and December 6, 1971, employees Hicks, Richards, and Smith filed a total of nine grievances that parallel the allegations as to these individuals which appear in the General Counsel's complaint. All of these grievances were processed through the first three stages of the grievance 82 This was from midnight to 8 a.m. 48 DECISIONS OF NATIONAL LABOR RELATIONS BOARD procedure, but, insofar as the record reflects, none of the parties has sought to take any of these grievances to arbitration. Collyer and related Board decisions represent a develop- ing body of law on deferral to arbitration that initially did not include cases involving issues other than alleged violations of Section 8(a)(5) and (1) of the Act. Recently, however, the Board has deferred to arbitration in cases involving alleged violations of Section 8(a)(3). National Radio Company, 198 NLRB No. 1; Appalachian Power Company, 198 NLRB No. 7. In each of the foregoing cases, the i basic i issue' represented a I dispute's over, interpretation of provisions in an existing collective-bargaining agree- ment. Further, in deciding in favor of deferral in Collyer, the Board relied, in part, on the fact that "the parties .. . [had] for 35 years, mutually and voluntarily resolved the conflicts which inhere in collective bargaining" and also the fact that "no claim [was] made of enmity by Respondent to employees' exercise of protected rights." (Collyer, I supra.) In I National Radio, where the Board reached a similar decision, it referred to an 18-year bargaining history between the employer and the union as having been "harmonious and productive." (National Radio, 1supra.), In the latter case the Board also distin- guished the alleged violation of Section 8(a)(3) there involved as different from those in which there existed a history of union animus or an alleged "pattern of action subversive I of , Section, 71 rights." 1 (National , Radio,, supra.) In the instant case, the two collective-bargaining agree- ments involved are "first" contracts, secured in one instance by the RWDSU and in the other by the Guards Union. In neither instance has there been a "long established . . . stable and productive bargaining relation- ship." (National' Radio,, idem.) Moreover, the charges involve allegations of union animus and of a "pattern of action subversive of Section 7 rights." Consequently, it is my conclusion that the Respondent's motion to defer the cases of Banks, Hicks, Richards, and Smith to arbitration should be, and it hereby is, denied. Cf. Kansas Meat Packers, a Division of Aristo Foods, Inc., 198 NLRB No. 2. CONCLUSIONS OF LAW 1. The Respondent is engaged in commerce and the various unions here involved are labor organizations, all within the meaning of the Act. 2. All counselors employed by the Respondent at the Atterbury Job Corps Center, exclusive of office clericals, professional employees, guards, supervisors, and all other employees constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times since May 19, 1971, the Counselors Union has been the exclusive representative, for the purpose of collective bargaining within the meaning of Section 9(a) of the Act, of all the employees in the aforesaid appropriate unit. 4. By failing and refusing to bargain in good faith with the Counselors Union as the representative of the employ- ees in the aforesaid appropriate unit, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 5. The work stoppage which began on July 7, 1971, as an economic strike, was prolonged by the Respondent's unlawful refusal to bargain in good faith on that date and thereafter, and thereupon became an unfair labor practice strike. 6. By discriminating in regard to the hire and tenure of Claudies Banks, Glen D. Holmes, Edmund D. Hicks, Robert Arms, Robert Brown, Carolyn Clark, Sergei Davidenkoff, Loren Hall, Willard Kennedy, Norman Merkler, Gerald B. Morris, Stewart Northrup, Hansh Pandya, Pence Pruitt, E. Paul Sechrist, and Philip Waggoner, thereby discouraging membership in a labor organization, the Respondent has engaged, and is engag- ing, in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged, and is engaging, in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2(6) and (7) of the Act. 9. The General Counsel has not proved by a prepon- derance of the evidence that the Respondent interfered with, restrained, or coerced its employees in the exercise of the rights safeguarded by the Act, except by the specific acts and conduct found herein to have been violative. THE REMEDY Having found that the Respondent has engaged in certain unfair labor practices, I will recommend that the Respondent be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily terminated Glen D . Holmes and Claudies Banks, I will recommend that the Respondent be ordered to offer Holmes and Banks immediate and full reinstatement without prejudice to their seniority or other rights and privileges, and to make them whole for any loss of earnings they may have suffered from the time of their discharges to the date of the Respondent's offer of reinstatement. Similarly, having found that the Respondent discriminato- rily terminated Robert Arms, Robert Brown, Carolyn Clark, Sergei Davidenkoff, Loren Hall, Willard Kennedy, Gerald B . Morris, Stewart Northrup, Harish Pandya, Pence Pruitt, E. Paul Sechrist, and Philip Waggoner, I will recommend that the Respondent be ordered to offer them immediate and full reinstatement without prejudice to their seniority or other rights and privileges, and to make them whole from August 3, 1971, when the strike ended, to the date of the Respondent's offer of reinstatement. Further, I will recommend that the Respondent make whole Edmund D. Hicks for the wages lost because of his discriminatory suspension in June 1971 . The backpay for the foregoing employees shall be computed in accordance with the formula approved in F. W. Woolworth Co., 90 NLRB 289, with interest thereon computed in the manner and amount prescribed in Isis Plumbing & Heating Co., 138 NLRB 716, 717-721 . It will also be recommended that the said WESTINGHOUSE LEARNING CORP. 49 Respondent be required to preserve and make available to the Board, or its agents, on request, payroll and other records, ,,to .,facilitate- d computation of backpay due. Finally, the Board . aii the courts have held that where an employer engages in violations of the Act during the certification year, and thus interrupts bargaining with the ensuing litigation, the union is entitled to the benefits of its certification once the litigation is terminated. N.L.R.B. v. John S. Swift Company, Inc., 302 F.2d 342, 346 (C.A. 7, 1962). In Mar-Jac Poultry Company, Inc., 136 NLRB 785, the Board held that where an employer's violations of Section 8(a)(5) prevented meaningful collective bargaining, the certification year must be extended.83 In this case, as found earlier herein, the Respondent's unlawful refusal to bargain began on May 21, 1971, immediately after the Counselors Union won the representation election. As a result, that Union was deprived of the fruits of its entire certification year. Consequently, to place both the Respon- dent and the Counselors Union in the position they would have been, but for the Respondent's unlawful conduct, the bargaining provision in the recommended Order set forth hereinafter may be considered as tantamount to an extension of the certification year for a full 12 months after the parties resume negotiations . Quintree Distributors, Inc., 198 NLRB No. 69, fn. 2; Howmet Corporation, Austenal Microcast Division, 197 NLRB 471; Family Heritage Home- Beaver Dam Incorporated, 195 NLRB 1100. As the unfair labor practices committed by the Respon- dent are of a character striking at the root of employee rights safeguarded by the Act, it will be recommended that the said Respondent be ordered to cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4). Upon the foregoing findings and conclusions and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER84 Respondent, Westinghouse Learning Corporation and Westinghouse Learning Corporation (Indiana), its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Discharging, suspending, or otherwise discriminating against any employee because of membership in, or activity on behalf of, any labor organization. (b) Coercively, or otherwise unlawfully, interrogating its employees as to their union activities. (c) Refusing to bargain collectively in good faith concerning wages, hours, and other terms and conditions of employment with Atterbury Federation of Teachers and Counselors, Local 1693, affiliated with American Federa- tion of Teachers, AFL-CIO, as the exclusive representa- tives of all employees in the following appropriate unit: All counselors employed by the Respondent at the Atterbury Job Corps Center, exclusive of office clericals, professional employees, guards, supervisors, and all other employees. (d) Unilaterally changing working conditions without notifying, consulting, or bargaining with the aforesaid Union prior to so doing. (e) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self- organization, to form, join, or assist any labor organiza- tion, to bargain collectively through representatives of their own choosing, or engage in concerted activities for the purpose of collective bargaining or other mutual aid, or to refrain from any or all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Offer to Claudies Banks, Glen D. Holmes, Robert Arms, Robert Brown, Carolyn Clark, Sergei Davidenkoff, Loren Hall, Willard Kennedy, Gerald B. Morris, Stewart Northrup, Harish Pandya, Pence Pruitt, E. Paul Sechrist, and Philip Waggoner, their formerjobs, or, if those jobs no longer exist, substantially equivalent positions, without prejudice to their seniority or other rights and privileges. (b) Make whole Claudies Banks, Glen D. Holmes, Edmund D. Hicks, Robert Arms, Robert Brown, Carolyn Clark, Sergei Davidenkoff, Loren Hall, Willard Kennedy, Gerald B. Morris, Stewart Northrup, Harish Pandya, Pence Pruitt, E. Paul Sechrist, and Philip Waggoner, in the manner set forth in the section of this Decision entitled "The Remedy." (c) 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 or appropriate to analyze the amount of backpay due. (d) Post at the Atterbury Job Corps Center in Edinburg, Indiana, copies of the attached notice marked "Appen- dix."85 Copies of the notice, on forms provided by the Regional Director for Region 25, after being duly signed by the Respondent's authorized representative, shall be posted by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 25, in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. 83 See: N. L. R B. v. Commerce Company d/b/a Lamar Hotel 328 F.2d 600, 601 (C.A. 5), cert. denied 379 U.S. 817 (1964); Family Heritage Home-Beaver Dam Incorporated 195 NLRB 1100; and Burnett Construc- tion Company, 149 NLRB 1419, 1421, enfd. 350 F.2d 57 (C.A. 10, 1965). 84 In the event no exceptions are filed as provided in 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 85 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."