Portland Willamette Co.

272 DECISIONS OF NATIONAL LABOR i .ELATIONS BOARD Portland Willamette Company and Sheet Metal Work- ers International Association , Local No. 544, AFL- CIO. Case 36-CA-2398 June 28, 1974 DECISION AND ORDER BY MEMBERS JENKINS, KENNEDY, AND PENELLO On February 26, 1974, Administrative Law Judge Allen Sinsheimer issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief, and the Charging Party filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached 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.' We agree with the Administrative Law Judge that the retroactive pay given to all employees who worked between May 1 and October 2, 1972, and who had not terminated their employment status before December 15, 1972, except for strikers who remained on strike as of December 15, was unlawful discrimination under the doctrines laid down in Erie Resistor 2 and Great Dane Trailers.3 We think it would be useful, however, to articulate more fully the connnection between those cases and this one. To attempt to make this connection and some subsidiary points clearer, we shall begin with a brief summary of the pertinent facts as found by the Administrative Law Judge and adopt- ed herein. The Union was certified in April 1972 and began bargaining in May.4 After an impasse was reached, a strike commenced on August 14. Negotiations contin- ued, and on September 20 Respondent made a "pack- age" proposal which included a provision for retroactive pay in response to proposals on the same subject advanced by the Union. Respondent's re- 1 In adopting the Administrative Law Judge's recommended remedy, we construe the backpay provision therein as applying only to those of the 44 named strikers who did not, while on strike, terminate their employment status before December 15, 1972 While the names of some alleged strikers who quit before that date were eliminated from the complaint by amend- ment, no agreement was reached and no findings were made as to the individual status of each of the remaining strikers The backpay attaches only to days actually worked between May 1. 1972, and October 2, 1972 2 N L R B v Erie Resistor Corp, 373 U S 221 (1963) 3 N L.R B v Great Dane Trailers, Inc, 388 U S 26 (1967) All dates are in 1972. troactivity proposal was that whatever first-year wage increase might be agreed upon would be made retro- active to May 1 but would be paid only to persons "on its payroll" on December 15. Respondent told the Union that it chose that date because it would have enough money then, and not before, to make such retroactive payments, and because it did not want employees to return from the strike, receive their ret- roactive pay, and immediately quit. Respondent's package proposal was rejected by the Union. After further unsuccessful negotiating meetings, Respondent informed the Union orally on October 4 and in writing on October 5 that in the absence of an agreement it was proceeding to "put [the] wage por- tions of our last proposal into effect with this payroll period." Nothing was said as to retroactivity. At the time the September 20 proposal was made some of the original strikers had returned to work and by October 5 a few more had returned, totaling about 40 percent of the original 162 strikers. On December 15, Respon- dent paid the retroactive wage increase to all employ- ees who worked between May I and October 2, when the increased rate went into effect, and who were still on the "payroll," except for strikers who had not yet returned. Four or five strikers returned thereafter and were denied the retroactive pay, and no others among the total of 44 strikers who had not returned by De- cember 15 have received it. For the reasons stated by the Administrative Law Judge and for the additional reason that some strikers have returned to work since December 15, we think the Administrative Law Judge's finding that the strike was continuing on December 15 is amply supported. And we find to be beside the point Respondent's ar- gument that the Union, assuming it failed specifically to object to Respondent's retroactive pay proposal, had tacitly agreed to it and had thereby waived any statutory rights to retroactive pay otherwise accruing to the strikers. The essential truth of the matter is that neither did Respondent intend the proposal, nor did the Union treat it as providing a cutoff date for aban- donment of the strike.5 Respondent gave two reasons, as stated above, for its proposal. The first had to do with the date on which payment would be made and had nothing to do with eligibility. The second con- cerned prevention of quitting immediately after re- ceipt of the retroactive pay. As part of a package proposal to settle the strike and the underlying dis- pute, the retroactive pay proposal necessarily con- templated that, should the proposal be accepted at all, it would in all probability be accepted in the not dis- tant future and the strike would then end. While there 5 For this reason it is unnecessary for us to consider whether a clearly evidenced waiver on the part of the Union could have given rise to a valid and enforceable cutoff date under the authority of United Aircraft Corpora- tion, 192 NLRB 382. 385-388 212 NLRB No. 28 PORTLAND WILLAMETTE COMPANY 273 was always a possibility that the strike would still continue after December 15, as turned out to be the case, this was not the problem to which the September 20 retroactive pay proposal was addressed. Rather, as conceded and even insisted by Respondent, the prob- lem contemplated was keeping the returned strikers at their jobs during a busy period which ended about December 15. This explains the otherwise mysterious absence of any discussions between the parties as to the meaning of "on the payroll," and makes under- standable the testimony of Union Representative Klein that he was surprised to learn after December 15 that strikers who were still out were not receiving retroactive pay. "On the payroll" had a clear meaning in the context in which it was raised: not having quit. Whether the Union specifically objected to such a requirement or not it clearly did not agree to waive the statutory rights of strikers .6 From the foregoing we also conclude that whatever business justification Respondent had for proposing the September 20 retroactivity conditions in the first place were no longer relevant on December 15 when it implemented them in a manner which discriminated against unreturned strikers. Respondent contends that it had to exclude unreturned strikers in order to give effect to the incentive it was giving employees to encourage them to stay with the Company. Thus Re- spondent states in its brief: "[T]here appears to be no way that this objective could be accomplished without denying the pay to former strikers who had not yet returned to the Company. As noted, it would be ludi- crous to deny the pay to individuals who returned, worked and quit before December 15 while according it to persons who had not been seen since the com- mencement of the strike four months earlier." This seems an odd contention. Surely, the employees were able to recognize the difference between strikers and terminated employees as of December 15; most of them had participated in the strike themselves. In any event, there is no evidence that employees were told in advance that retroactive pay was to be given or withheld under such criteria, and consequently the only perceivable effect of the payments will be to discourage employees from engaging in protected ac- tivities in the future.' On the other hand, to the extent that Respondent may in fact have conveyed to employees in advance that strikers who did not abandon the strike by a certain date would be deprived of retroactive pay in- creases for time already worked,' implementation of 6 Cf Technitrol, Inc, 201 NLRB 74 at 77 (1973). 7 Aero-Motive Manufacturing Company, 195 NLRB 790, 791-792. 8 Respondent apparently takes the position that its October notification to the Union that it would implement the "wage portions" of its last proposal carried with it the implication that the retroactivity feature was also being implemented, that this constituted notification to the employees, and that such a proposition: is inherently destructive of em- ployee rights. Aside from strikers, Respondent did not "encourage" temporarily inactive employees, such as those on various types of leaves of absence, to return to work by requiring them to resume an active status by December 15 as a precondition to receiving the retroactive payment. Such business justifications as Respondent has available to explain its actions in this case, we find, have less significance than the predicta- ble reaction of its employees with regard to their will- ingness to exercise their statutory right to strike.9 But even were we to judge the impact of this dis-, criminatory conduct on employee rights as "compara- tively slight," a conclusion that is arguable only if the connection between abandoning the strike and receiv- ing the retroactive increase had been left vague and incidental, we do not think Respondent has met the burden imposed upon it under Great Dane Trailers of showing that it was motivated by legitimate and sub- stantial business objectives.10 As we explored above, exclusion of the remaining strikers was neither the intention of the retroactivity proposal when proposed nor in furtherance of the reasons given to justify the proposal when viewed at the time the payments were made. Only by arguing that it had unequivocally com- mitted itself beforehand to exclude unreturned strik- ers, a commitment which we have found would have been inherently and seriously destructive of employee rights, can Respondent even approach a showing of any business justification. In either case it has dis- criminated against employees in the exercise of their rights, in violation of Section 8(a)(3) of the Act. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, Portland Willamette Compa- ny, Portland, Oregon, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. MEMBER KENNEDY, dissenting: I cannot agree with my colleagues that Respondent violated Section 8(a)(3) of the Act by implementing its proposal for retroactive wage payments. In order to prove an 8(a)(3) violation, the General Counsel must normally establish that discriminatory conduct was motivated by antiunion considerations." employees would reasonably have interpreted the "on the payroll" provision as excluding strikers. 9 See N L R B. v. Erie Resistor Corp., supra, 373 U.S. at 228-229, 236-237. 'O N L.R.B v. Great Dane Trailers, Inc., supra, 388 U.S. at 34. it N L.R.B. v. Great Dane Trailers, Inc, 388 U.S. 26 (1967), American Shipbuilding Co v. N.L R B, 380 U.S. 300. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is no independent evidence of antiunion moti- vation in the present case. However, in the Great Dane Trailers case,12 the Supreme Court said that certain employer conduct carries its own indicia of discrimi- natory motivation and no independent proof of such motivation is necessary. The Court defined two classes of cases which come within this principle. The first class covers situations where the employer conduct is so "inherently destruc- tive of employee interests" that the employer must have foreseen and intended its unavoidable conse- quences. In this type of case, the employer has the burden of explaining away, justifying, or characteriz- ing his actions as something different from what they appear on the surface and, if he fails, an 8(a)(3) viola- tion is established. In this category was the grant of superseniority to striker replacements and strikers who abandoned the strike in Erie Resistor.13 In the second class of cases, if the adverse effect of the discriminatory conduct on employee rights is "comparatively slight," an antiunion motivation must be proved if the employer has come forward with evidence of legitimate and substantial business justifi- cation for the conduct. In Great Dane, the discrimination consisted of re- fusing to pay strikers vacation pay under a terminated collective-bargaining contract while announcing an intent to pay such benefits to nonstrikers. Inasmuch as the employer came forward with no evidence of legitimate motives for its discriminatory conduct, the Court affirmed the Board's finding of an 8(a)(3) viola- tion without finding it necessary to decide whether the discrimination fell into the first or second category. The present case, in my opinion, belongs in the category of "comparatively slight" impact on employ- ee rights. Unlike the superseniority granted in Erie Resistor, which had long-term, permanent effects, the retroactive wage payment to employees who returned to work and continued working through the Decem- ber 15 payroll period had only a one-time, ephemeral effect.14 The offer was made to the Union in response to the Union's insistence on a retroactive wage provi- sion, at a time when it seemed likely that the strike would soon end. It was not intended as a strike-break- ing move. It was also carried out according to its terms, that is, if a striker returned to work before December 15, but quit before that date, he received no retroactive wage payment, and neither did he receive such payment if he returned to work after December 15. When Respondent made its "package" proposal to the Union on September 20, there can be no doubt that it gave to the Union legitimate and substantial business justification for its proposal. I do not under- stand the majority to contend otherwise. However, the majority says that the business justification which might have been relevant on September 20 was no longer relevant on December 15, when Respondent actually implemented the proposal. This seems illogi- cal to me. If the promise was validly made in Septem- ber, I think Respondent had the right, if not the duty, to perform according to that promise in December. The promise of retroactive pay was intended only for those employees who returned to work and contin- ued working for Respondent through December 15. Respondent would have been guilty of, in effect, perpetrating a fraud upon employees who remained in Respondent's employ in accordance with the terms of Respondent's offer if, on December 15, it had turned around and decided to award backpay to em- ployees who quit before the cutoff date or did not return to work by that date. Respondent had the right to insist upon its credibility, just as the employees had the right to insist that the Respondent keep its prom- ise. As I would find that Respondent had legitimate and substanial business justification for its conduct, and as there is no evidence of antiunion motivation, I would dismiss the complaint. Accordingly, I dissent from the majority's decision. DECISION STATEMENT OF THE CASE ALLEN SINSHEIMER , JR, Administrative Law Judge: The above proceeding was heard at Portland, Oregon, on De- cember 6, 1973. On October 31, 1973, a complaint' and notice of hearing issued, alleging that Respondent, Portland Willamette Company, violated Section 8(a)(1) and (3) of the Act. The principal issue is whether, by establishing a cutoff date of December 15, 1972, for the payment of retroactive pay increases to employees "on the payroll" as of that date, Respondent illegally discriminated against strikers who had not returned to work as of December 15. Upon the entire record, including my observation of the witnesses, and after due consideration of the briefs of the General Counsel, the Charging Party and the Respondent, I make the following: 2 '2 N L R B v. Great Dane Trailers, Inc, supra 13 Erie Resistor Corp v N L R B, 373 U S 221 14 See Inter-Collegiate Press, Graphic Arts Division v N L R B, 486 F 2d 837 (C A 8, 1973) (hiring of temporary replacements during lawful lockout held not "inherently destructive" of employee rights and therefore not unlaw- ful in the absence of evidence of antiunion motivation) 1 An original charge was filed March 12, and an amended charge filed April 26, 1973. 2 At p 7 of its brief, Respondent moved to correct 1 25 of p. 142 of the transcript of proceedings by deleting the words "contract pact" and substitut- ing in their place the word "contact" so that it would read "Did you have PORTLAND WILLAMETTE COMPANY 275 FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF THE RESPONDENT Respondent, an Oregon corporation with its principal place of business at Portland, Oregon, is engaged in the manufacture and distribution of ornamental fire screens. During the past year, it sold and shipped from Portland, Oregon, to points outside the State of Oregon products val- ued in excess of $50,000. I find that Respondent is, and has been at all times material, an employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED Sheet Metal Workers International Association, Local No. 544, AFL-CIO, is a labor organization within the meaning of the Act. ` III. THE ALLEGED UNFAIR LABOR PRACTICES A. The Facts On April 7, 1972, the Union was certified as exclusive bargaining representative of Respondent's production and maintenance employees. Collective bargaining commenced in May 1972, with the Union demanding, among other items, that any increased wage rate be paid retroactively to May 1. On July 17, after bargaining meetings, the Re- spondent submitted a package proposal which included a provision for retroactive pay but did not contain any specif- ic provisions as to eligibility therefor. This proposal was conditioned upon acceptance in its entirety by the Union. It was rejected. On August 14, a strike commenced in which all but 1 of the then 163 production and maintenance em- ployees participated.3 On August 29, the Union submitted a new proposal which reasserted its demand for wage retroactivity and on Septem- ber 18 another proposal also involving retroactive pay. On September 20, the Respondent presented a proposal con- taining, among other matters, the wage retroactivity provi- sion here involved. This proposal was rejected by the Union. This wage retroactivity provision was to the effect that the Respondent would pay the retroactive increase for all work performed since May 1, 1972, to all persons who were "on its payroll" on December 15, 1972. There was no discussion as to what the words "on its payroll" meant. After an im- passe had admittedly been reached, Respondent verbally on October 4 and in writing on October 5 advised the Union: .. Accordingly it is our intention to put these wage por- tions of our last proposal into effect, effective with this payroll period." On December 15, it made retroactive pay- ments to all "persons then on its payroll." At the meeting on September 20, the Respondent stated its reasons for the December 15 date. The expressed reasons were: (1) that it would have increased revenues coming in any contact from the Union at all?" Since no response to said motion has by that time because of seasonal operations and its method of billing, so as to be in a position to make such payments; and (2) Respondent also expressed its concern about the possibility of employees returning from the strike, receiving their retroactive pay, and immediately leaving the Company since it wanted them to remain. Respondent also points out that on September 20 it believed the strike would soon be over and that by December 15 all those who desired to return would have returned. By the week of September 20, 57 of the 163 employees who were present before the strike commenced on August 14 had returned to work. Of the 163 original employees, 47 had had less than 6 months of service as of August 15 and, according to the Respondent, based on experience, it could expect a turnover of about 60 percent of that group. The total production and maintenance unit on September 20, including striker replacements, was 144. By the week ending September 30, 61 of the original employees had returned and the total production and maintenance force consisted of 177. By November 1, 81 of the original employees had returned so that the production and maintenance force was up to 226 employees. This was more than before the strike because of the seasonal nature of Respondent' s business and because it was necessary to make up for production lost during the strike. The complaint lists 44 individual strikers alleged to have been discriminated against by not receiving retroactive pay increases for work performed after May 1. Of these, either four or five returned to work after December 15 with their former seniority but without receiving retroactive wage in- creases for work from May 1, 1972,5 At the meeting of September 20, Union Representative Klein stated that the most important item to be settled was union security. He also mentioned another matter concern- mg the order of return of strikers. The meeting was primar- ily devoted to a discussion of union security. Respondent witnesses Edwin Fackler, executive vice president, and Robert Trappe, secretary for, the Metal Trades Association, testified the Union said nothing about Respondent's retro- active wage proposal and did not reject it. Klein testified that they had rejected the Company's proposal as to retroac- tivity along with the remainder of the proposal. He first said he didn't recall saying anything about it, then said he couldn't recall what words he used in rejecting the retroac- tivity proposal but that they didn't like it and rejected it and the "entire thing." Finally, he testified they felt the people should get the retroactive pay after the contract was signed and that he said so on September 20. Klein then said he must have said the words since he did most of the talking. Finally, Klein testified that they said no, they didn't see any merit in it and they wanted the money to be paid a reason- able length of time after the contract was signed. Klein said the Respondent would not retract the requirement of em- ployees being on the payroll on December 15. Klein was then asked: Q. Then why were you so surprised after Decem- ber 15 to find out only through employee informants coming to you that some other people did not receive been made and it appears to me to be a valid and proper correction, the 4 Sixty percent of 47 equals about 28. motion is hereby granted and the transcript corrected accordingly. 5 One of these persons may not have been entitled to an increase in any 3 One employee apparently returned to school. case. 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay? A. Because we felt they were still on the payroll, even though they were on strike. Q. I see. You thought they were on the payroll even though they didn't work in the week ending December 15? A. That's right. In my opinion, it is not necessary to resolve precisely what was or was not said as to rejection of the retroactive wage increase proposal in view of the fact it is admitted that there was an impasse in the bargaining for a contract. In a meeting on September 22, according to Trappe's uncontradicted testimony, Klein said that many strikers came to his office and offered to resign from the Union so they could return to work, that Klein said it was the employ- ees, not the Union, who wanted to strike, that now they've gotten it out of their system and they were coming to work, and that he had told them that any of them that wanted to go back to work could do so. Further, Trappe testified that Klein said he wasn't going to stand in their way of returning to work and said he even urged some of them to come back to work. Further meetings were held with the Union September 25 and October 2 and 19. In the October 2 meeting, according to Douglas Thompson, a vice president of Respondent, a union representative, Westergard (who did not testify) stat- ed that the only real point of contention remaining was union security. According to Trappe, on October 19, Klein stated that the only thing that stood between the Respond- ent and the Union and agreement was the union security. In both these meetings, apparently only union security was discussed. Since October 19, the Company has received no further requests for bargaining or other contact from the Union. About October 4, according to Klein, Respondent's exec- utive vice president, Edwin Fackler, phoned him and an- nounced that Respondent was going to institute its September 20 last offer as to wages. Nothing was said as to retroactivity. On October 5, Respondent notified the Union of its intention to "put these wage portions of our last pro- posal into effect with this payroll period." 6 Other than this, nothing was said about Respondent's intentions with re- spect to retroactivity. The first time the Union learned that Respondent was granting retroactive wages to any employ- ee occurred in late December or early January when certain employees apparently informed the Union that other em- ployees had received retroactive pay but they had not. As set forth, either four or five persons who were on strike returned after December 15 but were not given retroactive pay. Neither were any of the other strikers, among the 44 listed in the complaint, who did not return to work at all after December 15. As set forth, there was no discussion of what "on the payroll" meant in the Company's proposal of September 20. The Union asserts (as Klein testified, supra) it was surprised that all strikers were not considered as "on the payroll" on December 15 (whether working or not) as it felt strikers were still "on the payroll." Respondent contends the latter 6 As stated, supra, as of September 30 only 61 strikers had returned is an afterthought and that the Union understood what "on the payroll" meant. Respondent obviously did not share the Union's slated view as to the meaning of "on the payroll" in effecting the retroactive wage increases. It did consider among persons "on the payroll" those who were off because of sickness, leave of absence, workmen's compensation, or military service. However, those strikers who had returned to work prior to December 15 and who had left Respondent's employ prior to December 15 and other per- sons who had worked prior to December 15 but left before December 15 did not receive retroactive pay. Accordingly, the Respondent's selection of persons for retroactive pay increases could not be said to have been based on whether or not they were strikers or nonstrikers as such. There was a differentiation made as between strikers who returned by and were employed on December 15 and those who had not returned then. As will be discussed more fully, post, the question is what effect might there be on strikers and a strike where a specific time is set within which strikers must return to receive such retroactive payments. Respondent contends in essence that the strike was sub- stantially, if not entirely, abandoned. However, it appears that the Union did not take this view in spite of the testimo- ny that Klein had indicated that it was the workers who wanted to strike and the Union was willing for them to return. According to Klein, the Union maintained from one to four pickets regularly to about January 1, 1973, when the number was reduced to one picket. Other witnesses testified that after November 1 there was only one picket at a time. In either case, it appears that one person (an employee of Respondent) was continually at Respondent's premises with his car and a picket sign and that on occasion another person replaced him. In addition, the Union advised em- ployees of Respondent, other unions, and customers of Re- spondent that the strike was continuing. By a letter sent to employees working at Respondent dated February 16, 1973, copies of which letter were also sent to other labor organiza- tions, the Union advised that the strike was continuing and that it would be helpful if additional resolutions supporting the strike were sent to Respondent. At the same time, a letter dated February 15, 1973, was also sent to customers and other unions, advising the strike was still on and re- questing that they not buy fireplace equipment made by Respondent. Respondent, through Vice President Fackler, admitted that at no time did Klein or any other representa- tive of the Union ever tell him that the strike had been terminated. B. Conclusions First, the Respondent's position in essence is that the Union and the Respondent had reached an agreement, ex- cept for union security, and that the retroactive wage in- crease provision was accordingly valid. Respondent persists in its contention, although admittedly no total agreement had been reached. Klein's somewhat vague testimony, su- pra, as to what occurred with respect to the retroactive wage increase proposal is in conflict with Respondent's conten- tion that the subject was not discussed on September 20. While Klein's asserted statement of the Union's position is plausible, the manner of his testimony on the subject raises PORTLAND WILLAMETTE COMPANY doubts as to what, if anything, was in fact said at the time. However, I do not deem it necessary to resolve this since it is clear no complete contract or agreement was in fact reached. In such case, there cannot be found to be effective agreement on parts of a proposal unless explicitly so stated. Collective-bargaining contract proposals are tentative in nature pending agreement on the whole. Of course, if there is an impasse in bargaining, a respondent employer may be entitled to put into effect certain provisions where these have been offered in bargaining whether the particular pro- vision is agreed upon or not. Second, predicated upon an admitted impasse, the Re- spondent may be contending that the retroactive wage in- crease provision is a provision that it could then put into effect. Whether or not the latter would be true if the strike were over is one question. A first question would be whether the Respondent could effectuate such a provision if it had entered into an agreement with the Union for an entire contract. It is not necessary to resolve this latter, although it may be observed that had the Union and the Respondent, as part of the collective-bargaining process, agreed on a provision establishing a cutoff date, after a reasonable amount of time were allowed for all strikers to return upon termination of a strike, such might be valid .7 Second, assuming that such a provision could be imple- mented if a valid contract were entered into, could the same be done if there were no contract but an impasse occurred? The impasse theoretically could occur under circumstances when the Union had terminated a strike or where the strike was continuing. I do not reach the first possibility since I consider the strike was a continuing one as of December 15, 1972. Third, the strike, as set forth, was never officially termi- nated by the Union. On the contrary, it was continued both by maintaining a picket and by the Union's continuing endeavors to elicit support from other unions, employees, and customers, although Klein, perhaps inconsistently, ap- parently was indicating that he had no objection to the strikers returning to work at Respondent. Evidently in part on the basis of the latter, the Respondent takes the view that the strike "was long past by December 15 within the objec- tive observation of the employees." The difficulty with the Respondent's position is twofold. First, a strike must clearly be over and terminated before such can be found to be the case. Presumably, this can occur either by express action or by a combination of time and circumstances. In the instant case, certainly time had not elapsed by December 15 nor are the circumstances explicit that the strike was over. On the contrary, there was clear indication of a continuing strike. Klein's expressions, although those of an official, were ap- parently in conflict with the views of the employees with respect to both the calling and continuation of the strike. As of about October 4 or 5, when Respondent chose to com- mence implementation of its proposal, less than about 40 percent of strikers had returned.' There was continued pick- eting far past December 1972 (up to and including the time of the hearing in December 1973) and requests for strike assistance from customers, employees and other unions as 7 See United Aircraft 192 NLRB 382. E See fn. 10, post. 277 late as mid-February 1973. These activities are definitely such as to establish that the strike was still in effect after December 15, 1972, and I so find. In Bright Foods v. N.L.R.B., 126 NLRB 553 (decided February 9, 1960), a strike commenced June 23, 1959. There was picketing to December 3, none at the time of the hear- ing, but the Union continued to hold weekly meetings and seek recognition. The Board found a current strike. See also American Metal Productions Company, 139 NLRB 601. The Respondent could properly put into effect certain changes in working conditions following the impasse. How- ever, since the strike was still in effect, I do not consider that the retroactive wage increase with a December 15 cutoff provision would be such a condition. To put such a provi- sion into effect during the course of a strike would necessar- ily have the effect of interfering with, restraining, and coercing rights of the individuals to participate in a strike by setting a time limit in which they had to end the strike in order to obtain a particular benefit as individuals. While this might be proper if negotiated with and agreed to by the Union, where it is proposed but not agreed to and then put into effect, it necessarily tends to affect the rights of employ- ees to participate in a continuing strike. Whether or not the strikers construed the Respondent's proposal as excluding them if they did not return by December 15,9 Respondent so interpreted and applied its proposal (of September 20). Under these circumstances, an ambiguity, if any, must be construed against Respondent and the notice of implemen- tation of wage proposals by letter of October 5,10 together with payment of the retroactive increases only to those 'on the payroll December 15, found to necessarily have had the effect of interfering with, restraining, and coercing employ- ees in the exercise of their right to strike, in violation of Section 8(a)(1) of the Act. The implementation of such pro- posal further would tend to encourage strikers to give up a strike and discourage strikers from continuing the strike by discriminating against those who continued to strike in vio- lation of Section 8(a)(3) of the Act. The latter consequence is not unlike that in Erie Resistor, I t where the strikerreplace- ments and early strike returnees would have received super seniority as against the persons on strike who continued on strike. The consequence was discrimination between re- placements and strikers who returned early, and strikers who did not. Such was obviously discriminatory conduct in violation of Section 8(a)(3). There, the respondent employ- er set forth an economic justification, namely, that its neces- sity to obtain replacements in order to run the business required that it give replacements assurance of permanency. Here, the Respondent asserts as an economic justification to assure that strikers when they returned would at least work for some time and also setting the date on the basis of its obtaining needed revenues by then. Under the circum- stances, I do not consider that the asserted economic justifi- cation has any greater merit than that asserted in Erie 9 I have referred to, supra Klein's testimony that he did not understand "on the payroll" to exclude strikers and was not aware of such effect until after December 15 10I also note that on September 30 (4 days earlier) of the 162 strikers of August 14, 6 weeks earlier, 61 or about 38 percent had returned. By Novem- ber 1, 81 or just half had returned. 11 Erie Resistor Corp., 373 U S. 221 (1963). 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Resistor. Respondent's action therefore would fall within the ban of both Erie Resistor and the doctrine laid down in the Great Dane Trailers case.12 I am accordingly finding that the Respondent herein, by granting the retroactive pay to those persons "on the pay- roll" of December 15, 1972, but excluding those persons who continued to be strikers, violated Section 8(a)(1) and (3) of the Act, and shall recommend a remedy accordingly. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with the operations of Re- spondent described in section I, above, have a close, inti- mate, and substantial relation to trade, traffic and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V THE REMEDY Having found that Portland Willamette Company has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take affirmative ac- tion to effectuate the policies of the Act. Having found that Portland Willamette Company has discriminated against strikers who did not return by Decem- ber 15, 1 shall recommend that such discrimination be remedied as follows. As to the 44 persons named in the complaint, whose names are attached hereto, the Respond- ent shall pay to each of said 44 named persons such amount of retroactive backpay as he or she would have been entitled to for work performed between May I and October 2, 1972, under the terms of the retroactive pay program (other than the December 15 "on the payroll" requirement), put into effect by the Respondent, plus interest on such amounts from December 15, 1972, at 6 percent per annum as de- scribed in Isis Plumbing & Heating Co., 138 NLRB 716. 1 shall also recommend that the Respondent post an appro- priate notice. CONCLUSIONS OF LAW 1. At all times material herein, Sheet Metal Workers In- ternational Association, Local No. 544, AFL-CIO, was a labor organization within the meaning of the Act. 2. At all times material herein, Respondent Portland Wil- lamette Company has been an employer engaged in com- merce within the meaning of the Act. 3. At all times material herein, the Union has been the exclusive bargaining representative of all production and maintenance employees of the Respondent herein involved. 4. On August 14, 1972, Respondent commenced a strike which was continuing at all times material to and past De- cember 15, 1972. 5. Respondent and the Union have not entered into or executed any collective-bargaining agreement covering the times material herein. 12 N L R B v Great Dane Trailers, Inc, 388 U S. 26 (1967), 6. On or about October 2, 1972, the Respondent and the Union had reached an impasse as to the terms of a collec- tive-bargaining agreement. 7. By conditioning the payment of retroactive pay in- creases to persons on the payroll of December 15, 1972, and by failing and refusing to make retroactive pay increases to persons who worked between May I and October 2, 1972, but had not returned from the strike as of December 15, 1972, while making such payments to persons on the payroll of December 15, 1972, including persons who had returned from the strike, the Respondent interfered with, restrained, and coerced employees in violation of Section 8(a)(1) of the Act. 8. By conditioning the payment of retroactive pay in- creases to persons on the payroll of December 15, 1972, and by failing and refusing to make retroactive pay increases to persons who worked between May 1 and October 2, 1972, but had not returned from the strike as of December 15, 1972, while making such payments to persons on the payroll of December 15, 1972, including persons who had returned from the strike, the Respondent encouraged employees to terminate the strike and discouraged employees from con- tinuing the strike in violation of Section 8(a)(3) of the Act. 9. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. Upon the basis of the foregoing findings of fact, conclu- sions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER13 Portland Willamette Company, its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from: (a) Failing and refusing to make the retroactive pay in- creases, referred to above, which are due to the 44 persons on the list attached hereto as Appendix A. (b) Discriminating in regard to the hire or tenure of em- ployment, wages, hours of employment , or any term or condition of employment of the 44 named persons on Ap- pendix A hereto or any other person because he/she has engaged in a strike or other union or concerted activities or any other activity protected by the Act. (c) In any like or related manner interfering with the right of employees to self-organization, to form labor orga- nizations, to join or assist the above-named or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities except to the extent such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8(a)(3) of the Act. 2. Take the following affirmative action which it is found 13 In the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Section 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes PORTLAND WILLAMETTE COMPANY will effectuate the policies of the Act: (a) Make each of the 44 persons named in Appendix A hereto whole for any loss of earnings he/she may have sustained as the result of the discrimination against him/her in the manner prescribed in section V of this Decision enti- tled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, person- nel records and reports, and all other records necessary or useful to an analysis of the amount of backpay due under the terms of this recommended Order. (c) Post at its premises in Portland, Oregon, copies of the notice attached and marked "Appendix B." 14 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by Respondent's' repre- sentative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (d) Notify the Regional Director for Region 19, in writ- ing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. 14 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A Aaron, Jerry D. Kreider, Robert M. Adams, John T. Lawrence, Robert E. Jr. Allen, Terry L. Lea, Joseph G. Archer, Bruce D. Le Forgey, James K. Arnet, Rowland R. Lord, Pierre M. Ashenbrenner, Garry McKinnon, Jimmie D. Bentley, Kenneth McNamar, Mervin E. Caldwell, Noel D. Marshall, Lewis Carter, Robert L. Muller, Paul Clisby, Frank L. Nelson, Ronald L. Cooper, Douglas L. Owen, Ernest Domanics, Antal G. Pilot, Charles E. Fry, Timothy L. Reynolds, David L. Gant, Bennie Schultz, Millard E. Gibson, George W. Scovell, Gary N. Graven, Douglas H. Scovell, Terrance E. Greer, Raymond G. Van Broekhuizen, Chas. L. Grimes, Velton L. Walluck, Christopher B. Grousbeck, Donald E. Ward, Dennis T. Helgeson, Gary L. Watts, David L. Holzer, Gary Wege, Richard P. Johnson, Lauren C. Winn, Franklin W. APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 279 WE WILL NOT fail and refuse to make the retroactive pay increases which are due to the 44 persons on the list attached hereto as Appendix A. WE WILL NOT discriminate in regard to the hire or tenure of employment, wages, hours of employment, or any term or condition of employment of the 44 named persons on Appendix A hereto or any other person because he/she has engaged in a strike or other union or concerted activities or any other activity protected by the Act. WE WILL NOT in any like or related manner interfere with the right of employees to self-organization, to form labor organizations, to join or assist Sheet Metal Workers International Association, Local No. 544, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities, except to the extent such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8(a)(3) of the Act. WE WILL make each of the 44 persons named in Ap- pendix A hereto whole for any loss of earnings he/she may have sustained as the result of our discrimination against him/her. PORTLAND WILLAMETTE COM- PANY (Employer) Dated By (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions may be direct- ed to the Board's Office, 310 Six Ten Broadway Building, 610 S. W. Broadway, Portland, Oregon 97205, Telephone 503-221-3085.