Covington Furniture Mfg. Corp.

214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Covington Furniture Mfg. Corp . and Local 282, United Furniture Workers of America, AFL-CIO. Case 26- CA-4829 June 28, 1974 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On March 27, 1974, Administrative Law Judge Herzel H. E. Plaine issued the attached Decision in this proceeding. Thereafter, the Respondent filed ex- ceptions and a supporting brief, and the General Counsel 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. 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, Covington Furniture Mfg. Corp., Covington Tennessee, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. DECISION HERZEL H. E. PLAINE, Administrative Law Judge: The principal issue in this case is whether Respondent, a furni- ture manufacturer, refused to bargain in good faith for an initial contract with the Charging Party (Union), the certi- fied representative of Respondent's production and mainte- nance employees at the Covington, Tennessee, plant, in violation of Section 8(a)(5) and (1) of the National Labor Relations Act (the Act). Additionally, there is the derivative issue of whether there were 8(a)(3) and (1) violations for Respondent's alleged failure to reinstate applying strikers after the conclusion of the strike prompted by the failure of bargaining The complaint, filed September 28, 1973, on a charge by the Union filed August 15, 1973 (and amended charges filed September 27 and December 4, 1973), alleges that Respond- ent bargained in bad faith, with no intention of entering into a contract, particularly by insisting, as a condition to execu- tion of a collective-bargaining contract, that the Union agree to indemnify Respondent against any threat, coer- cion, harassment, or intimidation of employees, who are not members of the Union, by payment to Respondent of a penalty of $1,000 for each such occurrence. Respondent's indemnity-penalty condition was intro- duced into the negotiations on June 5, 1973, after bargain- ing had continued futilely over economic matters from November 1972 through March 1973, after a strike by the Union commencing on April 2, 1973, and after the Union capitulated to Respondent's economic and other contract terms on June 5, 1973, except, of course, for the newly raised condition. The Union and General Counsel contend that the in- demnity-penalty condition was not a mandatory subject of bargaining under Section 8(d) of the Act, that the Union was not under a duty to bargain concerning it, and that Respondent's insistence from June 5 onward that the Union accede to the condition converted the strike, which continued through June 22, 1973, from an economic strike into an unfair labor practice strike Respondent argues in its defense that the indemnity-pen- alty condition was a nondiscrimination proposal and be- came a mandatory subject of bargaining and a condition upon which it could insist, without violation of Section 8(a)(5), because of alleged acts of violence, threats, and intimidation against nonstriking workers in the course of the strike. The complaint further alleges that, since the conclusion of the strike, Respondent has failed to reinstate 10 of the applying strikers to their former or substantially equivalent jobs, and delayed 2 months in restoring an 11th striker to her former job. General Counsel grounds the resulting 8(a)(3) and (1) violations alleged, primarily, on the duty to promptly reinstate applying unfair labor practice strikers to their former or substantially equivalent jobs even though permanent replacements may have been hired; and, second- arily, if the strikers were not unfair labor practice strikers, on Respondent's failure to accord them the preferential status of economic strikers and immediately reinstate them when their previous or substantially equivalent positions became available. In opposition, Respondent contends that the strikers were not unfair labor practice strikers, and that as economic strikers there were no vacancies to which to restore some who applied, that several did not apply for reinstatement and that one striker was not entitled to reinstatement be- cause of alleged picket line violence. The case was tried in Covington, Tennessee, on Decem- ber 4, 5, and 6, and in Memphis, Tennessee, on December 18, 1973. General Counsel and Respondent filed briefs, as well as earlier separate memoranda on the question of whether Respondent's indemnity-penalty condition was a mandatory or nonmandatory subject of bargaining. Upon the entire record in the case, including my observa- tion of the witnesses and consideration of the briefs and memoranda, I make the following: FINDING OF FACT I JURISDICTION Respondent is a Tennessee corporation with its office and 212 NLRB No. 56 COVINGTON FURNITURE MFG. CORP. 215 plant in Covington, Tennessee, where it is engaged in the manufacture and sale of furniture. In the 12 months prior to filing of the complaint, Re- spondent purchased and received at Covington products valued' in excess of $50,000 directly from points outside Tennessee, and sold and shipped from Covington products valued in excess of $50,000 directly to points outside Ten- nessee. Respondent is, as the parties admit, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. The Union is, as the parties also admit, a labor organiza- tion within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES A. Negotiations for a Contract and Strike Respondent's office and its plant for the manufacture of furniture are at Covington , Tennessee, about 50 miles north of Memphis. Following a Board conducted election in October 1972, the Union was certified on October 31, 1972, as the bargain- ing representative of the unit of the plant production and maintenance employees and the truckdrivers. At the time Respondent had about 100 employees. On a request for contract negotiations , November 13, 1972, bargaining began in December 1972, and continued, without agreement reached, through January, February, and March 1973. In charge of negotiations for the Union was the full-time president of the Local, LeRoy Clark, of Memphis. In charge of negotiations for the Respondent was its lawyer, William E. Fortas, also of Memphis. Clark was assisted by an employee committee, and Fortas was assisted by Respondent's president, J. William Patten. The parties were unable to reach agreement on wages, vacations, holidays, and seniority , according to Union Pres- ident Clark, and the Union went on strike on April 2, 1973. According to Respondent's vice president, J. Kenneth Pat- ten, son of President J. William Patten , Respondent had between 110 and 115 employees at the time , and about 60 to 70 went on strike. Vice President J. Kenneth Patten, who said he was in charge of hiring and firing, testified that replacements were hired for all employees who went on strike. Contract negotiations did not cease. A meeting of the negotiating teams was held at the office of the federal medi- ator in Memphis on May 30, 1973, where the mediator transmitted messages between the two groups. Union Presi- dent Clark proposed a settlement on a 20-cent wage in- crease, a 5-cent increase for new hires to start at $1.65 per hour, seniority as the Union had proposed it, 1 week vaca- tion after 1 year of employment, 2 weeks vacation after ,2 years of employment, a contract for a year, and return of all strikers to their jobs. Lawyer Fortas responded that this was not satisfactory, that Respondent wanted a contract of less than 1 year to expire at the end of the certification year in October 1973, seniority of laid off employees to cease after 30 days, and assurance against harassment of people currently working. The Union would not accept this proposal and made a counterproposal, namely, that it would accept the last offer made by Respondent prior to the beginning of the strike and the return of the strikers to their jobs. Respondent rejected the counterproposal and raised four points, according to Union President Clark: that return of the strikers would have to be in accordance with law, that seniority would have to be as Respondent originally proposed it, that there would have to be some stipulation of no harassment by the strikers of the working employees, and that the contract would have to be for less than 1 year in duration. Union President Clark's response was still another coun- terproposal, that there be a 1-year contract with seniority as the Union had previously proposed it, and the rest of the contract as Respondent had previously proposed it. Re- spondent would not accept this further counterproposal. The meeting broke off without a new date set , but with an indication that Respondent would do some research of re- call rights versus seniority rights and that there might be some telephone discussions. On request of Union President Clark, the Federal media- tor arranged a meeting in his Memphis office on June 5,' 1963, where Clark, Lawyer Fortas, and the mediator met face to face. Clark offered to accept, on behalf of the Union, Respondent's last offer made in the previous May 30 meet- ing, including an October 31, 1973, termination date for the contract . Fortas replied there wouldhave to be a no-harass- ment article that included financial penalties if there was to be an agreement, and he submitted to Clark a draft of the penalty clause, exhibit GC-5, as follows: There shall be no discrimination against any employ- ee because of his membership or non-membership in the Union. The Union further agrees that neither it nor its agents, servants, attorneys, members or anyone act- ing in its behalf will threaten , coerce, harass, or intimi- date employees who are not members of the Union and will owe damages to the Company in the amount of $10,000.00 for each such occurrence of threats, coer- cion, harassment or intimidation. The Union specifically agrees that , it will be bound and liable for the acts of itself, its agents, servants, attorneys, members or anyone acting in its behalf, whether authorized or not. If the Company is required to file legal action to collect said monies , then the Union agrees to pay all costs of said action , including the Company's attorney fees. Union President Clark said that the Union could not and would not agree to any financial penalty provision. He wrote out in his own hand a proposed article to take care of what he thought was the problem raised by Lawyer For- tas, an article recognizing the right of the Employer to im- mediately discharge any employee who engaged in harassment or intimidation of nonunion member employ- ees, exhibit GC-6, as follows: There shall be no discrimination against any employ- ee because of his membership or non-membership in the Union. The Union further agrees that neither it nor its agents, servants, attorneys, or members will threat- en, coerce, harass, or intimidate employees who are not members of the Union. The company further agrees that neither it nor its agents, servants, attorney or employees will threaten, 216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD coerce, harass or intimidate employees who are mem- bers of the the Union. Employees guilty of violating the Terms of the above section of the contract are subject to immediate dis- charge. Lawyer Fortas said that Clark's proposal (exhibit GC-6) was unacceptable, that it did not meet the problem with which he was concerned, namely, dangers of threats and harassment from nonemployees, including striking employ- ees that Respondent might not reinstate to their jobs. Fortas enumerated some examples of alleged threats and events (such as bricks through windshields) he said had occurred. Clark protested that he had been on the picket line practi- cally every day (employee testimony indicated that this was so), and he had not heard of violence or threats during the strike; and that this was the first time either Fortas or his principal had mentioned these alleged wrongdoings. Fortas admitted (his testimony) that this latter was true, neverthe- less insisted that his client had to have the protection and that only a financial penalty would provide the effective protection. In their discussion that day, Clark had noted that Respondent's draft, exhibit GC-5, was one-sided and appli- cable only to the Union; and in his proposed solution, ex- hibit GC-6, Clark had included language seeking to make mutual the obligation to refrain from harassment. Fortas said he would redraft his proposal to make it apply to both sides, but Clark reiterated that he could not agree to any financial penalty or indemnity. The meeting adjourned without any new time fixed for a meeting, and the remain- der of the negotiations were between Clark and Fortis in meetings at the Fortas office and by telephone. Fortas mailed Clark a redraft of exhibit GC-5, that ap- plied to obligation to refrain from harassment and the pen- alty to both Respondent and Union, and reduced the penalty from the original $10,000 to $1,000 per occurrence, exhibit GC-7, as follows: There shall be no discrimination against any employ- ee because of his membership or non-membership in the Union. The Company agrees that neither it nor its agents, servants, attorneys, or members will threaten, coerce, harass, or intimidate employees who are mem- bers of the Union and will pay to the Union for each such occurrence the sum of $1,000.00 as a penalty therefor. The Union agrees that neither it nor its agents, servants, attorneys, or members will threaten, coerce, harass, or intimidate employees who are not -members of the Union and will pay to the Company for-each such occurrence the sum of $1,000.00 as a penalty therefor. Both the Company and the Union agree that if either is required to file legal action to collect said monies and is successful, then the other will pay all costs of said action including attorney fees. Union President Clark telephoned Lawyer Fortas that the Union could not accept the revised proposal, exhibit GC-7, and that it could not accede to any financial indem- nity or penalty obligation of any size. Fortas indicated his client would not accept Clark's proposed solution, exhibit GC-6, that there had to be a financial penalty, and that the Union would have to agree to the proposal, exhibit GC-7, if there was to be a collective bargaining contract. Clark met with Fortas at the latter's office, and engaged Fortas in further telephone calls, attempting to persuade Fortas and his client to find an alternative to the financial penalty. Clark gave up on June 22, 1973, when it had become unmis- takably clear that Respondent would not budge from its position. While these negotiations with Lawyer Fortas were in pro- gress, Union President Clark, who usually went up to Cov- ington each day, reported to the strikers, who took 1-hour turns in picketing at Respondent's three gates and would meet daily at the general store a quarter of a mile down the road from Respondent's plant, when not on picket duty. As Clark and a number of the employees testified, he advised them of Respondent's $10,000 indemnity-penalty require- ment, exhibit GC-5, and later of the reduced requirement to $1,000, exhibit GC-7, and told them each time that the Union could not agree to any such condition. On June 22, 1973 (a Friday), Union President Clark in- formed the assembled strikers at the general store that Re- spondent would not give them a contract without their acceding to the indemnity-penalty condition, that the Union could not agree to such condition, and that he was terminating the strike. He told them to report back to the plant the following Monday morning for their jobs. B. Section 8(a)(5) and (1) Findings As Respondent's negotiating representative Lawyer For- tas conceded in his testimony, the only'matter that stood in the way of agreement on a collective-bargaining contract was Respondent's insistence that the Union accept Respondent's indemnity-penalty proposal contained in ex- hibit GC-7. Again, as Fortas acknowledged, Union Presi- dent Clark had been clear, from the time the proposal was introduced into the negotiations, that the Union would not accept a financial indemnity or penalty obligation, and Clark had declined to bargain about a financial obligation. He had offered a nonfinancial alternative remedy, exhibit GC-6, in place of the financial obligation, as a means of meeting Respondent's alleged problem concerning future harassment and, when rejected, had invited other nonfinan- cial alternatives from Respondent. However, Respondent refused to negotiate or accept anything other than the mon- ey penalty or indemnity, and the Union continued to de- cline to negotiate or accept the monetary obligation, which it regarded as a nonmandatory subject of bargaining. While Section 8(d) of the Act does not provide a list of subjects for mandatory bargaining, it does establish a limi- tation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between employer and employ- ees, N.L.R.B. v. Borg-Warner, 356 U.S. 342, 350 (1958); Chemical Workers v. Pittsburgh Plate Glass Co., 405 U.S. 157, 178 (1971). In Borg-Warner, the Supreme Court held nonmandatory an employer proposal that required the union to take a ballot among all union and nonunion employees and obtain a majority authorization of the employees before strike ac- tion could be taken or a final offer refused. In Pittsburgh Plate Glass, the Supreme Court held nonmandatory an em- COVINGTON FURNITURE MFG. CORP. 217 ployer proposal for midterm unilateral, modifications of benefits of retired (as distinct from active) employees. In Borg-Warner, 356 U.S. at 349, the Court pointed out that, with respect to subjects within the area of mandatory bargaining "neither party is legally obligated to yield... . As to other matters, however, each party is free to bargain or not to bargain or to agree or not to agree ." In the case at bar, as in Borg-Warner, there was no issue about the employer having met the statutory standard of good faith when negotiations were in progress on subjects of mandato- ry bargaining. "But that good faith," as the Court said, "does not license the employer to refuse to enter into agree- ments on the ground that they do not include some proposal which is not a mandatory subject of bargaining . . . [S)uch conduct is, in substance, a refusal to bargain about the subjects that are within the scope of mandatory bargain- ing." Ibid. In holding that the employer's demand was a nonmanda- tory subject of bargaining , 356 U.S. at 349-350, the Court noted that the provision (a ballot authorization by a majori- ty of all employees before strike action could be taken or a final offer refused) related only to the procedure to be fol- lowed by the employees among themselves before the Union might call a strike or refuse a final offer . "It settles no term or condition of employment - it merely calls for an advisory vote of the employees . It is not a partial 'no- strike' clause. A `no-strike' clause prohibits the employees from striking dung the life of the contract. It regulates the relations between the employer and the employees... . The `ballot' clause, on the other hand , deals only with rela- tions between the employees and their union." Following the analogy of Borg-Warner, and prior thereto on not inconsistent reasoning, the Board and the courts have consistently treated a contract requirement of a perfor- mance bond or financial indemnity agreement proposed by either employer or union for the other , as a nonmandatory subject of bargaining, and have held that employer or union insistence to impasse on such a requirement was a violation of the obligation to bargain, in good faith . Among the earli- est cases were Jasper Blackburn Products Corp., 21 NLRB 1240 (1940); Scripto Mfg. Co., 36 NLRB 411 , 426-428 (1941); Standard Generator Service Co., 90 NLRB 790, 800 (1950), enfd . 186 F.2d 606 (C.A. 8,195 1); and E. A. Taormi- na, d/b/a Taormina Co., 94 NLRB 884, 900-901 (1951), enfd. 207 F.2d 251 (C.A. 5, 1953), each holding that the employer's insistence to impasse on the union providing a performance bond to insure performance of a contract pro- vision or provisions was a violation of Section 8(a)(5) and (1) of the Act. Correspondingly, International Brotherhood of Teamsters (Conways Express), 87 NLRB 972, 978-979 (1949), affd. on other grounds sub nom Rebouin v. N.L.R. B., 195 F.2d 906 (C.A. 2, 1952), held that the union violated Section 8(b)(3) of the Act in insisting to impasse on a performance bond by the employer as a condition for entering into a collective- bargaining contract, just as an employer on his part violated Section 8(a)(5) by demanding a performance bond of the union, citing, among others , Blackburn and Scripto, supra. The rationale, said the Board , for either the 8(a)(5) or 8(b)(3) violation was that the proponent of the condition "sought to prefix fulfillment of its statutory obligation with a condi- tion.not,within the provisions, and manifestly inconsistent, with the policy of the Act"; that the reasonableness and good faith of the proponent in advancing the proposal was not decisive; and that the tendency of the proposal to delay, impede, or otherwise circumscribe the bargaining process rendered the proposal improper. In post-Borg-Warner cases, the Board and courts contin- ued to regard insistence on performance bonds as violations of either Sections 8(a)(5) or 8(b)(3). In N.L.R.B. v. American Compress Warehouse, 350 F.2d 365, 369-370, (C.A. 5, 1965), cert. denied 382 U.S. 982 (enfg. 144 NLRB 433,437 (1963)) , the employer was held to have violated Section 8(a)(5) and (1) of the Act by insisting that the union provide a surety bond, on the ground that the requirement of a performance bond was not within the compass of mandatory collective bargaining. In Local 164, Brotherhood of Painters, etc. v. N.L.R.B., 293 F.2d 133, 135-136 (C.A.D.C., 1961), cert. denied 368 U.S. 824 (enfg. 126 NLRB 997 (1960)), union insistence on a performance bond by the employer was held to have violated Section 8(b)(3), on the ground that require- ment of a performance bond had nothing to do with perfor- mance of work but was a condition that had to be met before work was even undertaken. Hence, concluded the court, it was unwilling to say that a condition precedent to employment was a "condition of employment" such as wag- es and hours, within the meaning of Section 8(d) of the Act, and therefore execution of a performance bond was not a condition of employment and not a subject of compulsory bargaining. The court found support for its position in N.L. R.B. v. Dalton Telephone Co., 187 F.2d 811, 812 (C.A. 5, 1951), cert. denied 342 U.S. 824, a case where the employer had insisted as a condition of bargaining that the union register under the Georgia code to be subject to suit on its contract, and the Board and Fifth Circuit held that the employer's insistence that the union become amenable to suit in a state court was outside the sphere of terms and conditions of employment. Said the court, in Local 164, Painters, the demand that the employer give a bond to pay a penalty is comparably outside the area of compulsory bargaining. In two other post Borg-Warner cases, one involving an employer violation, the other a union violation, the financial indemnity conditions demanded'were even more akin to the provision in the case at bar than the performance bond conditions. In N.L.R.B. v. Davison, d/b/a Arlington Asphalt Co., 318 F.2d 550, 554-558 (C.A. 4, 1963), enfg. 136 NLRB 742, 745-747 (1962), the sole issue upon which the negotiating parties could not agree was employer insistence on a $10,000 indemnity agreement by the union to secure the employer against loss of jobs or profits in event there were boycotts or work stoppages caused by a rival union or refus- al of work to the employer by building contractors doing work serviced by the rival union. The Board held that the employer's indemnity proposal did not concern itself with relations between the employer and its employees but with relations between the employer and other employers and unions. Said the Board, the case was no different from those involving performance bonds, not deemed mandatory subjects of bargaining, and insis- tence on the condition violated Section 8(a)(5) and (1) of the 218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Act. The Board went on to point out that the indemnity proposal could not be found to be a mandatory subject of bargaining because it, like the performance bond, is related to security for the contracting party-the employer-rather than relating to a benefit or security for the contracting party's employees. Indeed, said the Board, the employer's indemnity proposal goes even beyond the obligation of a perfoormance bond, because it demands monetary assurance from the union for acts of third parties. Public duties (to engage in good faith collective bargaining, etc.) may not be set at naught because of alleged private inconvenience claimed to exist by reason of actions or threatened actions of third persons. 136 NLRB at 745-747. The Court of Appeals for the Fourth Circuit affirmed the Section 8(a)(5) and (1) violations, 318 F.2d 550, approving the analogy between the indemnity proposal and perfor- mance bond (as nonmandatory subjects of bargaining), and holding that the good faith of the employer in making the nonmandatory proposal was no defense to the violation of Section 8(a)(5). The court noted that it is the particular proposal, not merely the problem that generated the propos- al or to which the proposal is addressed, that must concern "wages, hours, and other terms and conditions of employ- ment" (Section 8(d) of the Act) in order to be considered a mandatory subject of bargaining. The indemnity clause, said the court, bore no direct or reasonably certain relation- ship to protection of employees (against curtailment of work). Only indirectly, at best, could the proposal have been said to secure employees their jobs and to concern relations between the employer and the employees, under the Borg- Warner test. In design, said the court, the indemnity clause was to secure the employer against loss. The outside forces that the employer feared were beyond the union's control. 318 F.2d at 554-558. In Carpenters District Council of Detroit, 145 NLRB 663, 664-668 (1963), the Board found that the union violated Section 8(b)(3) by insisting that the employer (who had been delinquent in wage payments) agree to provide an escrow fund of $2,500 as security for payment of wages. The Board held that it is an unfair labor practice for either an employer or a union to insist that the other party post a performance bond on its equivalent as a condition precedent to entering into a collective-bargaining agreement. Such clauses were not mandatory subjects of bargaining, and the reason- ableness of the demand or the good faith of the proponent in making it were not decisive. Reiterating the ratio deciden- di of the earlier cases, the Board said that it is the tendency of such proposals to delay or impede or otherwise circum- scribe the bargaining process that renders the clauses im- proper. The Board took occasion in the Carpenters of Detroit case to bolster and clarify its decision of the previous year in Arlington Asphalt (136 NLRB 742), discussed supra, wherein it had pointed out that the indemnity proposal under scruti- ny, like a performance bond, related to security for the contracting party rather than relating to a benefit or security for the employees. Noting that this phraseology was not felicitous and was meant only to emphasize that the indem- nity clause in question, no less than a performance bond, was by its very nature a nonmandatory subject of bargain- ing, the Board stated there was no intention to differentiate between performance bonds relating to benefits for employ- ees (as in the case before it) and other performance bonds. Said the Board, the law from the beginning stood "squarely for the proposition that insistence upon any performance bond by either employer or labor union isper se an unlawful refusal to bargain." 145 NLRB at 667. Applying the law to the case at bar, Respondent' s insis- tence to impasse that the Union agree to indemnify Respon- dent by a $1,000 payment of penalty for each occurrence of any threat or act of harassment or intimidation against non- union employees of Respondent, as a condition for Respon- dent signing a collective-bargaining contract with the Union, was a violation of Section 8(a)(5) and (1) of the Act. N.L.R.B. v. Davison, d/b/a Arlington Asphalt Co., supra, 318 F.2d 550, 554-558; Carpenters District Council of Detroit, supra, 145 NLRB 663, 664-668. The indemnity-penalty con- dition insisted upon by Respondent was a nonmandatory subject of bargaining, and whether Respondent had a rea- sonable basis for making the demand, or acted in good faith in proposing it, was not decisive and did not excuse the unfair labor practice. Ibid, and see also International Broth- erhood of Teamsters (Conways Express), supra at 978-979, and North Carolina Furniture, Inc., 121 NLRB 41 (1958).' The nonmandatory nature (as a bargaining subject) of the condition upon which Respondent insisted was not only evident from its form as a money penalty or security to indemnify Respondent for a possible injury, Carpenters Dis- trict Council of Detroit, supra, at 667, but also from its claimed objective which, as expressed by Respondent, was to secure Respondent from feared harassment of its non- union employees by third parties who would not be employ- ees of Respondent, N.L.R.B. v. Davison, d/b%a Arlington Asphalt Co., supra at 557. Respondent contends that the indemnity-penalty clause was a mandatory subject of bargaining because its purpose was to protect the rights of its employees under the Act. However, as pointed out by the court in Davison, supra, Respondent has confused the anticipated problem that, from its standpoint, generated the 'proposal, namely, the right of its employees to refrain from as well as participate in union activity and to be free from discrimination and interference in that regard, with the particular proposal it devised to solve the anticipated problem, namely, a finan- cial security provision to indemnify Respondent with a i Though the matter of reasonable basis for and good faith in making the indemnity-penalty proposal was therefore immaterial, I note in passing that from the evidence adduced, plus Respondent's additional offer of proof, regarding alleged acts of picket line and other harassment of or violence towards nonstriking employees and the employer, there may have been con- siderable exaggeration by Respondent of the nature of the events and of the alleged cause for concern. In this regard, it is noteworthy, among other things, that though the police were at the plant site and available to Respond- ent from the inception of the strike, there was no evidence of complaints to the police of picket line misconduct or of action or arrests by the police at the picket line except for the arrest of picketing employee Chaney, who was arrested and fined $5 and costs for a remark to the arresting police officer; there were no charges filed by Respondent with the Board concerning picket line or other misconduct, and though Union President Clark came to the picket line almost daily, there was no representation or protestation by Re- spondent to him concerning the alleged intimidation or acts of violence (of which he and the employee picketis, who testified, said they were unaware) until more than two months after the strike began, when Respondent first presented its penalty proposal to the Union on June 5, 1973 COVINGTON FURNITURE MFG. CORP fixed money penalty if interference with the employees' rights should occur I Because such an indemnity provision is not directly but only speculatively and at most remotely related to terms and conditions of employment, and be- cause a proposal for such an indemnity provision has the tendency to circumscribe the bargaining process, it is not a mandatory subject of bargaining, and insistence upon adop- tion of the provision as a condition for entering into a collective-bargaining contract was aperse refusal to bargain in good faith.3 Respondent was guilty of such an unfair labor practice. C. Section 8(a)(3) and (1) Findings Following the end of the strike on June 22 , 1973, Respon- dent restored to employment a number of the striking employ- ees, but failed or refused to reinstate 10 applying strikers and delayed reinstatement of l applying striker approximately 2 months after application. The law is settled that a strike in response to an employer's violations of the Act is an unfair labor practice strike, and the striking employees are entitled to full rein- statement to their former or substantially equivalent jobs immediately upon their unconditional offer to return to work , even if permanent replacements for them have been made and discharge of such replacements is necessitated. Mastro Plastics Corp. v. N.L R.B., 350 U.S. 270, 278 (1956). A strike may be an unfair labor practice strike notwith- standing it also has economic objectives , and the unfair labor practice strikers must be rehired on demand even though there were also other causes of the strike . N L R.B. v. Fitzgerald Mills Corp., 313 F.2d 260, 269 (C.A. 2, 1963), cert. denied 375 U.S. 834. Accordingly, a strike begun in support of economic ob- jectives that is subsequently converted to protest unfair la- bor practices becomes an unfair labor practice strike on the date of the conversion . Philip Carey Mfg. Co. v. N.L.R.B., 331 F.2d 720, 728-729 (C.A. 6, 1964), cert. denied 379 U.S. 888. The strikers become unfair labor practice strikers on the date of the conversion and are entitled , upon an uncon- ditional offer to return to work , to immediate reinstatement if they have not been permanently replaced prior to the conversion date . Ibid, and see also N L R.B. v. Tom Joyce Floors, Inc., 353 F.2d 768, 772 (C.A. 9, 1965); N.L.R.B. v. Johnson Sheet Metal, Inc., 442 F.2d 1056, 1061 (C.A. 10, 2 The courts in both Davison and Local 164, Painters called attention to the fact that the Act provides remedies available to an employer for dealing with problems of the kind anticipated, N L R B v Davison, d/b/a Arlington As- phalt Co, supra at 558, and to the Federal policy that Federal courts should enforce agreements on behalf of or against labor organizations as the means for obtaining industrial peace. Local 164, Painters, supra at 135 J Respondent urges that Allen Bradley Co v N L R B, 286 F 2d 442 (C A 7, 1961), supports its position , but that case is inapposite There the court (disagreeing with the Board ) held that a condition sought by the employer from the union , to curtail the right of the union to fire or otherwise discipline members who might continue to work during a strike , was a mandatory subject of bargaining (rather than a nonmandatory matter between employ- ees and their union , as the Board held ) Without debating the merits of the decision , it dealt with nothing akin to the proposal in this case of an indemni- ty arrangement or monetary penalty, payable by the union to the employer. in the nature of a performance bond 219 1971). If any of the applying striking employees were per- manently replaced prior to the conversion date, they are entitled to reinstatement as the former or substantially simi- lar jobs become available, before these jobs may be offered to new employees. N.L.R.B. v. Johnson Sheet Metal, Inc., supra at 1061; Laidlaw Corp., 414 F.2d 99, 103-105 (C.A. 7, 1969), cert. denied 397 U.S. 920; American Machinery Corp. v. N.L.R.B., 424 F.2d 1321, 1325-1328 (C.A. 5, 1970). In the case at bar, the strike began as an economic strike on April 2, 1973, in support of the employees' contract demands. On June 5, 1973, when the Union acquiesced in and accepted Respondent's contract offer, Respondent on its part blocked agreement and the means of settling the strike by proposing and unlawfully insisting upon the in- demnity-penalty provision as a condition of entering into a contract. The strike was converted on June 5 into a protest against the Respondent's unfair labor practices, and the strikers became unfair labor practice strikers as of June 5, 1973, entitled to immediate reinstatement upon an uncondi- tional offer to return to work if they were not permanently replaced before June 5. If the applying strikers were perma- nently replaced before June 5, they were entitled to prefer- ential treatment (ahead of new applicants for jobs) as their former or substantially equivalent jobs became available; but, if only temporarily replaced, the unfair labor practice strikers were entitled to immediate reinstatement upon ap- plication. Following termination of the strike on Friday, June 22, and on the advice of Union President Clark, many of the strikers reported to the plant on the next regular workday, Monday, June 25, requesting reinstatement, and some others came in or telephoned in for the same purpose on subsequent days Respondent's Vice President J. Kenneth Patten testified that Respondent restored to former or simi- lar jobs about 15 to 20 of the former strikers (Respondent's hiring list, June 25 through November 26, 1973, exhibit GC-4, indicates out of 90 new hires in that period there were 19 former strikers rehired in the months of June, July, and August). As already indicated, the gravamen of the com- plaint is that Respondent unlawfully failed or refused to reinstate 10 other applying former strikers and delayed 2 months in reinstating I (of the 19) taken back Of the 10 employees not reinstated, it was established that 8-employees Lizzie (or Liz) Williams, Jerlene Gooden, Hel- en Harwell, Evelyn Byrd, Mattie Taylor, VeolaTaylor, Estelle Milbrook, and Dorothy Dowell-came to the plant and made unconditional offers to return to work on June 25, 1973; that employee Gwen Hoffman telephoned an unconditional offer to return to work on July 2, 1973; and that employee Carolyn Chaney came to the plant and made an unconditional offer to return to work no later than July 25, 1973. The 11th employee, Iola Echols, who was reinstated by Respondent on August 27, 1973, made an unconditional offer to return to work, at the plant, on June 25, 1973. In this connection it should be noted that Respondent failed to keep any accurate and complete record of strikers requesting reinstatement (by personal appearance or by telephone), and kept no record whatsoever of replacements of employees after the strike ended Nevertheless, tracing the convolutions and contradictions of the testimony of the two Pattens, father and son, the net effect of their testimony 220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was largely corroboration of the testimony of the employees and support for the above findings I have made. While there was an absence of any recollection by the Pattens of appli- cation for reinstatement by employees Gwen Hoffman, Veola Taylor, and Estelle Milbrook, a recollection that em- ployees Carolyn Chaney and Dorothy Dowell applied later than found above, and a conflicting recollection between the Pattens as to when employee Iola Echols applied, the total testimony satisfied me that these attempted contradic- tions of the employees by the Pattens were unreliable and not entitled to credence as indicated below.4 Vice President J. Kenneth Patten initially testified that with the start of the strike, Respondent began hiring re- placements and hired replacements for all of the strikers. From his more detailed testimony about replacements, it became apparent that most if not all of these replacements were trainees for the jobs, without prior experience in the particular jobs, brought in at the starting rate of $1.60 per President J William Patten gave the Board an affidavit on September 6, 1973, stating that, we did not maintain a list (of former strikers applying for jobs) but we just tried to remember who asked and who didn't ask Three months later, at trial , he asserted, I didn't maintain a list, my son (J Kenneth Patten) did. When shown the conflict with his affidavit, J. William Patten said the affidavit really meant I, not we, maintained no list Still later, he changed his testimony to say that he (J William Patten) made a list, on June 25, of the people he saw who asked for their-jobs back Then he changed that testimony to say he made a list on June 26 of the people he saw on June 25, but asserted he saw no applying employees after June 25 His list was not offered into evidence The son, J Kenneth Patten, initially testified, we kept a list, that is, my secretary did it turned out that the secretary didn't keep a list, and 1 Kenneth Patten testified he kept a handwritten list of employees who came to him directly or of whom his dad told him He didn't know if his dad knew that he kept a list from the beginning, said J Kenneth Patten The list, exh R-I, was admittedly incomplete (e g, employee Mattie Taylor with whom J William Patten spoke on June 25 was omitted, as was employee Dorothy Dowell, whom J Kenneth Patten sought to make out as Dorothy Dyson on the list applying September 27), and was admittedly erroneous as to some of its dates (e g, employees Helen Harwell, Liz Williams, and Jerlene Gooden are listed as having applied in the week ending June 30 whereas J William Patten saw them on June 25-he testified to seeing no employee after June 25 - and admitted he spoke with Harwell and Williams but not Gooden. who is on the list, and not Millbrook who is not on the list but came in with the other three on June 25, and Iola Echols, with whom J William Patten admittedly spoke on June 25 is erroneously shown as applying on August 27) Thus, without going through more examples, it became obvious that neither the list of J Kenneth Patten nor the memory of either Patten was entitled to any weight where Respondent sought to contradict the employee testimo- ny concerning their applications for reinstatement or the time when made Employee Evelyn Byrd came in seeking reinstatement on the first working day after the strike, June 25, accompanied by employee Dorothy Dowell also seeking reinstatement. J William Patten admitted that employee Byrd made such a request in his Board affidavit, though he attempted to wiggle out of the admission at trial on an alleged confusion of names, and J Kenneth Patten admitted that employee Dowell had applied though he tried to put the date back to September 27, again on an alleged confusion of names Employ- ee Gwen Hoffman who telephoned her request for reinstatement twice on July 2, the second time to make sure she had not been misunderstood, was turned away both times with the message that Kenny Patten was not hiring Patten admitted he had given no instructions to his telephone girl and the other clericals of the office on recording calls from applying strikers, which was consistent with Respondent's general lack of concern for keeping records concerning applying strikers in the circumstances of this case, the absence of a record by Respondent does not contradict employee Hoffman's claim and proof Likewise, the demonstrated inaccuracy of dates on exh R-I eliminates its potency to contradict employee Chaney's claim and proof that she saw J Kenneth Patten for reinstatement 2 or 3 weeks and not more than I month after the strike ended, rather than on October 15 as listed on exh R- I hour; and in many cases, Respondent was hiring two train- ees for each job and dropping the poorer of the two per- formers shortly after the hiring. For most of the jobs of concern to the 11 employees to this case, involving uphol- stering, sewing, and other phases of preparing furniture parts and putting the parts together, Patten testified that the learning period was from 4 to 6 months, and for some jobs from 3 to 4 months. In the less than 3-month period of the strike there were many departures of replacements, and there were replacements of replacements. Notable from this examination of the evidence was the absence of any promise by Respondent to the replacements that they were permanent replacements. Indeed the implica- tion from the method of hiring, and the learning periods needed, was that the jobs might well be temporary. While an employer may hire permanent replacements during the course of the strike in order to protect and continue his business, and need not discharge those permanent replace- ments in order to create vacancies for economic (as distinct from unfair labor practice) strikers who wish to return to work, N.1, R B. v. MacKay Radio and Telegraph Co., 304 U.S. 333, 345-346 (1939), the employer's hiring offer must include a commitment that the replacement position is per- manent and not merely a temporary expedient subject to cancellation if the employer so chooses. See Laidlaw Corp v. N.L.R.B, supra, 414 F.2d at 105; American Machinery Corp., supra, 424 F.2d at 1327; Georgia Highway Express, 165 NLRB 514, 516 (1967), affd. 403 F.2d 921 (C.A.D.C., 1968), cert. denied 393 U.S 935; Cyr Bottle Gas Co., 204 NLRB No. 83, slip op. pp. 2-3 (1973). It would therefore appear that the nine employees who applied for reinstatement on June 25, and the two employ- ees who applied for reinstatement on July 2 and July 25, 1973, respectively, were entitled to immediate reinstatement to their former or substantially similar jobs, ousting, if nec- essary, the temporary replacements occupying such jobs without regard to whether the particular replacement for the striker was hired before June 5 (when the strikers were economic strikers) or hired on June 5 or after (when the strikers became unfair labor practice strikers). Respondent's failure or refusal to so promptly reinstate the former striking employees was a violation of Section 8(a)(3) and (1) of the Act. Respondent's discriminatory purpose was accentuated by the fact that in its hirings on and after June 25, 1973, it passed over and ignored the 10 applying former strikers, who have not been reinstated, in favor of hiring new appli- cants who were nonstrikers, giving rise to an inference that Respondent was attempting to reduce union support in the shop; compare Cyr Bottle Gas Co, supra, 204 NLRB No. 83, slip op. at p. 5. A list of approximately 50 new hires (who were not former strikers) from June 25 to November 26, 1973, in 8 job categories in which the 10 discriminatees had variously either worked or could qualify, appears as Attach- ment B to the brief of the General Counsel.' 5 The 10 former strikers, who were not reinstated, and their qualifications, were as follows (capabilities based on Vice President J Kenneth Patten's testimony)- Lizzie Williams-employed approximately 4 years since September 1969, a cushion filler, also did cushion wrapping and layup work, capable of learning upholstering which includes back, seat, and arm building, and trim- COVINGTON FURNITURE MFG. CORP. 221 The 11th employee, Iola Echols, was initially denied rein- statement when requested on June 25, 1973, and was also passed over and ignored in favor of a new applicant Frizzell (a nonstrilcer), who was given Echols' job as a seat builder when the first temporary replacement for Echols quit in the week Echols applied for reinstatement. On August 27, 1973, 2 months later, when it appeared that the second replace- ment Frizzell was quitting, Respondent reinstated employee Echols to her former job. As already indicated, this delay in reinstating employee Echols was also a violation of Sec- tion 8(a)(3) and (1) of the Act. In the case of former striking employee Carolyn Chaney, see fn. 5, supra, Respondent makes a special contention in its brief, that it was not obliged to reinstate her because she committed "violence" on the picket line. The contention is surprising in view of the fact that President J. William Pat- ten, who did the testifying for Respondent on this subject in the case, made no claim of violence committed by em- ployee Chaney-he said he heard her threaten to beat up two employees coming to work one morning early in the strike. But the fact is, as employee Chaney testified, and Patten conceded it, Chaney was arrested by a police officer, who was at the picket line, for a remark she made to him, and she was fined $5 and costs as a result. There was no charge made to the police, as Patten also conceded, and there was no charge made by the police, that Chaney threat- ened or inflicted violence on anyone. The Board recently made an extensive review in Coronet Casuals, Inc., 207 NLRB No. 24, slip op. pp. 2-12 (1973), of when picket line misconduct, ranging from violence to bad language, will or will not justify denial of reinstatement to the employee in- volved. Without going into details or comparisons, it is quite obvious that even if it is assumed that employee Chaney's remark to the police officer constituted, and the $5 fine evidenced, picket line misconduct, it falls into the large class of minor acts of picket line misconduct that does not justify an employer refusing to reemploy the picketing employee. out work). Helen Harwell-employed approximately 4 years since August 1969, a cushion wrapper, did cushion filling, filled arms and backs, built panels, did layup work. Jerlene Gooden-employed approximately 1 year since September 1972, cushion filler, capable of cushion wrapping. Gwen Hoffman-employed approximately 1 year since September 1972, on tufting machine at time of strike , operated freehand sewing machine , zipper machine, boxing machine, button machine, did rollup and layup work, stuffed pillows, capable of doing button making and panel building and of learning upholstery work in its various facets. Evelyn Byrd-employed since March 1973, operated zipper and boxing machine. Marne Taylor-employed since February, 1973, seat builder, arm builder, and back builder, capable of doing trimout, spring up, cushion wrapping, and cushion filling work. Veola Taylor-employed since March 1973, panel builder, capable of seat building, cushion wrapping, cushion filling, tnmout, and spring up work. Estelle Millbrook-employed since March 1973, in upholstery department building arms and backs for couches, capable of doing seat building, trimout, spring up, cushion wrapping, cushion filling, and frame preassembly work. Carolyn Chaney-employed approximately 1 year since September 1972, did spring up of sofas and chairs, capable of doing seat building , building panels, frame preassembly, cushion wrapping, and cushion filling Dorothy Dowell-employed as panel maker, capable of doing arm build- ing, seat building, back upholstery, trimout, frame preassembly, spring up, cushion wrapping, and cushion filling. Ibid, slip op. p. 4. Respondent's refusal to reinstate employee Chaney on and after July 25, 1973, had no special justification and was, as already found, a violation of Section 8(a)(3) and (1) of the Act. CONCLUSIONS OF LAW 1. By refusing, since June 5, 1973, to bargain in good faith with the Union, specifically by insisting to impasse that the Union accede, as a condition of Respondent enter- ing into an otherwise agreed-upon collective-bargaining contract, to a proposal embracing a nonmandatory subject of bargaining, namely, an indemnity-penalty agreement, Respondent has engaged in unfair labor practices in viola- tion of Section 8(a)(5) and (1) of the Act. 2. These unfair labor practices converted an economic strike that began on April 2, 1973, into an unfair labor practice strike on June 5, 1973, which strike was prolonged by Respondent's refusal to bargain in good faith. 3. Notwithstanding unconditional requests for reinstate- ment by 11 former striking employees, Respondent failed to promptly reinstate them, or to offer them prompt reinstate- ment to their former or substantially equivalent jobs, and has yet to reinstate or offer to reinstate 10 of them, thereby engaging in unfair labor practices in violation of Section 8(a)(3) and (1) of the Act. 4. The described unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Inasmuch as the parties were in agreement on the terms of the contract except for the indemnity-penalty provision, the Union appears entitled to an order that, upon request of the Union, the Respondent sign a contract containing the provisions agreed upon with the Union on June 5, 1973, (excluding, of course, the indemnity-penalty provision un- lawfully insisted upon by Respondent); or if no such request is made, that Respondent, upon request, bargain in good faith with the Union with respect to the terms of a contract and, if an agreement is reached, sign it. Arlington Asphalt Co., supra at 748. In this connection the Union is entitled to application of the remedy developed by the Board in Marjac Poultry Co„ Inc„ 136 NLRB 785, 786-787 (1962),6 obviating technical expiration of the initial year of certification which , unless altered, began October 31, 1972 and would end October 31, 1973. Respondent, by its unlawful refusal to bargain since June 5, 1973, had deprived the Union of approximately 5 months' bargaining time of the 1-year period immediately following certification. Therefore, if the Union requests that Respondent sign the agreement reached June 5, 1973, the contract will be for the 5-month period (to the end of the certification year) to which the Union agreed on June 5. If the Union requests resumption of bargaining, Respondent's 6 And see Commerce Company d/b/a Lamar Hotel, 140 NLRB 226, 229 (1962), enfd 328 F.2d 600 (C.A. 5, 1964), cert. denied 379 U.S. 817 Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd, 350 F 2d (C A. 10, 1965), Capitan Drilling Co., 167 NLRB 144, 146 (1967), enfd. 408 F.2d 676 (C.A 5, 1969) 222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD obligation to bargain continues for at least an additional 5 months from the resumption of good faith negotiations. Marjac Poultry Co., Inc., supra, 136 NLRB at 787, fn. 6. Accordingly, it will be recommended that Respondent: (1) cease and desist from its unfair labor practices: (2) upon request, sign a contract with the Union contain- ing the provisions agreed upon with the Union on June 5, 1973 (excluding the indemnity-penalty provision), or if no such request is made, upon request, bargain with the Union in good faith and, if an agreement is reached sign it, recog- nizing that the last 5 months of the initial year of certifica- tion of the Union as representative of the bargaining unit shall be deemed to begin, under the Union's first option, on the date that the parties sign the agreement reached June 5, 1973, or, under the Union's second option, on the date that Respondent commences to bargain with the Union in good faith: (3) Offer immediate and full reinstatement to her former or substantially equivalent job to each of the unfair labor practice strikers who applied, dismissing if necessary per- sons hired on and after April 2, 1973. In this regard, Re- spondent shall make whole for any resulting loss of earnings any applying former striker who was refused reinstatement within 5 days after her application, the loss of earnings to be computed on a quarterly basis as set forth in F. W. Woolworth Co., 90 NLRB 289 (1950), approved in N.L.R.B. v. Seven Up Bottling Co., 344 U.S. 344 (1953), with interest at 6 percent per annum as provided in Isis Plumbing & Heating Co., 138 NLRB 716 (1962), approved in Philip Car- ey Mfg. Co. v. N.L.R.B., supra at 729-731: and (4) post the notices provided for herein. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, there is hereby issued the following recommended: ORDER? A. For the purpose of determining the duration of the certification of the Union as the recognized bargaining rep- resentative of the appropriate unit, the last 5 months of the initial year of certification shall be deemed to begin, for the purposes of paragraph B,2(a) of this Order, on the date the parties sign the agreement reached June 5, 1973, or, for the purposes of paragraph B,2(b) of this Order, on the date Respondent commences to bargain in good faith with the Union. B. Respondent, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Refusing, if requested by the Union, to sign a contract containing all of the provisions agreed upon with the Union on June 5, 1973 (excluding the indemnity-penalty provision insisted upon by Respondent); or if no such request is made, failing or refusing, upon the Union's request, to bargain 7 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, recommendations, and Order herein shall, as provided in Sec- tion 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. collectively in good faith with the Union as the collective- bargaining representative of the production and mainte- nance unit found appropriate by the Board, composing Respondent's production and maintenance employees and truckdrivers employed at the Covington, Tennessee plant, excluding all office clerical employees, servicemen, watch- men, guards, and supervisors as defined in the Act. (b) Failing and refusing to promptly offer to reinstate, and to reinstate, to their former or substantially equivalent jobs former striking employees who have applied uncondi- tionally for reinstatement. (c) In any like manner interfering with, restraining, or coercing employees in the exercise of their rights guaranteed under Section 7 of the Act. 2. Take the following affirmative action which is neces- sary to effectuate the policies of the Act: (a) Upon request of the Union, sign a contract contain- ing all of the provisions agreed upon with the Union on June 5, 1973 (excluding the indemnity-penalty provision insisted upon by Respondent). (b) If no such request is made, bargain collectively in good faith with the Union, upon its request, as the bargain- ing representative of all employees in the unit described in paragraph 1(a) above, with respect to wages, hours, and other terms and conditions of employment, and if an under- standing is reached embody it in a signed agreement. (c) Offer employees Lizzie Williams, Helen Harwell, Jer- lene Gooden, Gwen Hoffman, Evelyn Byrd, Mattie Taylor, Veola Taylor, Estelle Millbrook, Carolyn Chaney, and Dor- othy Dowell, who participated in the strike which began on April 2, 1973, and who have applied unconditionally for reinstatement and not been reinstated, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other tights and privileges, dismissing if necessary persons hired by Re- spondent on and after April 2, 1973. Make whole each of the aforenamed ten employees and employee Iola Echols, who was reinstated but not promptly as required by law, for any loss of earnings suffered by reason of Respondent's refusal or delay in reinstating the employee for so long as the delay or refusal continued or continues beginning five days after the employee applied for reinstatement, and com- puting the loss of earnings in the manner set forth in the section of this decision entitled "The Remedy." (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all pay- roll records, social security payment records, timecards, per- sonnel records and reports, and all other records necessary to ascertain loss of earnings under the terms of this Order. (e) Post at its establishment at Covington, Tennessee, copies of the attached notice marked "Appendix." 8 Imme- diately upon receipt of copies of said notice, on forms to be provided by the Regional Director for Region 26 (Memphis, Tennessee), the Respondent shall cause the copies to be signed by one of its authorized representatives and posted, the posted copies to be maintained for a period of 60 con- s 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 " COVINGTON FURNITURE MFG. CORP. 223 secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to en- sure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 26, in writ- ing, within 20 days from the date of the receipt of this Order, what steps the Respondent has taken to comply herewith. APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board having found, after a trial, that we violated the National Labor Relations Act, we hereby notify you that: WE WILL, upon request of Local 282, United Furni- ture Workers of America, AFL-CIO (the Union), sign a contract containing all of the provisions agreed upon with the Union on June 5,1973 (excluding the indemni- ty-penalty provision). If no such request is made, WE WILL, upon request of the Union, bargain collec- tively in good faith with the Union as the bargaining representative of all of the employees in the bargaining unit, described below, with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached, embody it in a signed agree- ment. The bargaining unit is : All production and maintenance employees and truckdrivers employed at our Covington, Tennessee plant, excluding all office clerical employees, ser- vicemen, watchmen, guards and supervisors as de- fined in the Act. WE WILL NOT refuse, on request of the Union, to sign a contract containing all of the provisions agreed upon with the Union on June 5,1973 (excluding the indemnity- penalty provision), and if no such request is made. WE WILL NOT fail or refuse, upon request of the Union, to bargain collectively in good faith with the Union. WE WILL NOT fail or refuse to promptly offer to rein- state, and to reinstate, to their former or substantially equivalent jobs former striking.employees who have applied unconditionally for reinstatement. ' WE WILL NOT in any like manner interfere with your right to join, assist, or be represented by, a labor union, or interfere with any of your rights of self-organization or mutual aid guaranteed under Section 7 of the Na- tional Labor Relations Act. Since the Board has found that the employees who were on strike in the period April 2 through June 22, 1973, be- came unfair labor practice strikers on June 5, 1973, and were not permanently replaced before June 5, 1973, WE WILL offer back to employees Lizzie Williams, Helen Harwell, Jerlene Gooden, Gwen Hoffman, Eve- lyn Byrd, Mattie Taylor, Veola Taylor, Estelle Mill- brook, Carolyn Chaney, and Dorothy Dowell, their old or substantially equivalent jobs and will dismiss, if nec- essary, persons hired since April 2, 1973. To these 10 named employees and to employee Iola Echols, who was reinstated but not promptly as required by law, WE WILL pay each for any resulting loss of earnings suffered as a result of our failure or refusal to reinstate her within 5 days after her application for reinstatement. Dated By COVINGTON FURNITURE MFG CORP (Employer) (Representative) (Title) This is an official notice and must not be defaced by any- one. 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, Clifford Davis Federal Building, Room 746, 167 North Main Street, Memphis, Tennessee 38103, Telephone 901-534-3161.