Robbins Co.

ROBBINS COMPANY Robbins Company and Driver Salesmen & Ware- housemen Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauf- feurs, Warehousemen & Helpers of America and Randolph E. Roberts. Cases 19-CA-8731 and 19 CA-8637 November 16, 1977 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENEI -LO AND MURPHY On July 12, 1977, Administrative Law Judge James S. Jenson issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The General Counsel filed a brief in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge, to modify the remedy so that interest is to be computed in the manner prescribed in Florida Steel Corporation, 231 NLRB 651 (1977),2 and to adopt his recommended Order, as modified herein. We agree with the Administrative Law Judge's finding that Respondent's discharge of three striking employees on June 30, 1976,3 had the effect of prolonging the strike. We further agree with his conclusion that these discharges did not have the retroactive effect of converting the strike to an unfair labor practice strike on June 2. We disagree, however, with the Administrative Law Judge's finding that Respondent's unlawful granting of a wage increase on June 2, to a single employee, converted the strike to an unfair labor practice strike. An unfair labor practice does not convert an economic strike to an unfair labor practice strike unless a causal connection is established between the unlawful conduct and the prolongation of the strike.4 Here, there is no evidence that the Union or the striking employees knew of Respondent's June 2 wage increase, or that this action had any impact upon the strike.5 In consequence, there is no basis for finding that Respondent's unlawful wage increase caused a prolongation of the strike. We therefore find that the strike was not converted to an unfair labor practice strike on June 2, the date of Respondent's unlawful wage increase. Rather, we find that the strike was converted to an unfair labor practice strike 233 NLRB No. 91 on June 30, the date of Respondent's unlawful discharge of three striking employees.6 We shall modify the Administrative Law Judge's recommend- ed Order accordingly. 7 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge as modified below and hereby orders that the Respon- dent, Robbins Company, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, as so modified: I. Substitute the following for paragraph l(d): "(d) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act." 2. Substitute the following for paragraph 2(b): "(b) Reinstate, upon unconditional request, Brian Scott, Michael Tracey, and John McKillip to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismiss- ing, if necessary, any persons hired after June 30, 1976, to replace them; and make such employees whole for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request, with interest. The names of such employees for whom no employment is avail- able by reasons of their permanent replacement before June 30, 1976, shall be placed on a preferen- tial hiring list based upon seniority, or some other nondiscriminatory test, for employment as jobs become available, in the manner set forth in the Remedy section of this Decision." 2. Substitute the attached notice for that of the Administrative Law Judge. I Respondent excepts only to the Administrative Law Judge's finding with respect to the date on which the economic strike was converted to an unfair labor practice strike, and to an inadvertent error In the notice. In the absence of exceptions. we adopt. pro forma, the remaining findings of the Administrative Law Judge. 2 See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). 3 All dates hereafter are in 1976 unless otherwise stated. The discharges were made with an effective date of June 2. 4 Anchor Rome Mills, Inc., 86 NLRB 1120 (1949). See also Trposeriiice Corporation, 203 NLRB 1180 (1973), and Capital Rubber & Specialti (Co. Inc. 198 NLRB 260(1972). 5 There is no allegation that the unlawful permanent replacement of Randolph E. Roberts had any effect on the strike. Nor is there any evidence that the strikers were aware of Respondent's conduct in this regard. 6 Chairman Fanning would in accordance with his dissent in Valley Oil Co., Inc., 210 NLRB 370 1974). order Respondent to reinstate the unlawfully) discharged employees with backpay from the date of discharge. 7 We shall also correct an inadvertent error in the notice. 549 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT replace employees in violation of their Section 7 right to either join in or refrain from joining in a strike, unless we have a reasonable belief that such employees have ratified and supported the strike. WE WILL NOT refuse to reinstate unfair labor practice strikers who unconditionally offer to return to work. WE WILL NOT unilaterally grant wage increases to our employees in excess of those proposed to the Union during negotiations. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed them under Section 7 of the Act. WE WILL, upon request, bargain collectively in good faith with Driver Salesmen & Warehouse- men Local Union No. 117, affiliated with Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of all employees in the unit described below, with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an understand- ing is reached, embody such understanding in a written and signed agreement: All material control employees employed by the Employer at its facility located at 650 South Orcas Street, Seattle, Washington, including plant clerical employees, excluding office clerical employees, professional em- ployees, guards, and supervisors as defined in the Act, and all other employees. WE WILL offer to Randolph E. Roberts imme- diate and full reinstatement to his former position or, if such position no longer exists, to a substantially equivalent position, without preju- dice to his seniority or other privileges, and WE WILL reimburse him for any loss of earnings he may have suffered by reason of our discrimina- tion against him. WE WILL reinstate, upon unconditional request, Brian Scott, Michael Tracey, and John McKillip to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired after June 30, 1976, to replace them; and make them whole for any loss of earnings resulting from our failure to reinstate them within 5 days of their unconditional request, plus interest. The names of such employees for whom no employment is available by reason of their permanent replacement before June 30, 1976, shall be placed on a preferential hiring list based upon seniority, or some other nondiscriminatory list, for employment as jobs become available. ROBBINS COMPANY DECISION STATEMENT OF THE CASE JAMES S. JENSON, Administrative Law Judge: These cases were heard before me in Seattle, Washington, on January 20 and 21, 1977, pursuant to an order consolidating cases, dated September 16, 1976.1 The complaint in Case 19-CA- 8637 was issued on July 9, pursuant to a charge filed on June 9, and alleges a violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended. Specifical- ly, the complaint alleges that, on or about April 28, Respondent's employees engaged in an economic strike and that, on May 3, Respondent permanently replaced Randolph E. Roberts at a time when Roberts had not joined the strike nor communicated any intention to participate in the strike and when he was incapable of making any decision as to whether he would engage in the strike. The complaint in Case 19-CA-8731 was issued on August 30, pursuant to a charge filed on July 14, and alleges violations of Section 8(aX5), (3), and (1) of the Act. Specifically, the complaint alleges that, on or about June 30, the Respondent discharged employees Brian Scott, Michael Tracey, and John McKillip because they engaged in a lawful and protected strike; that on or about June 2 the Respondent unilaterally granted wage increases to certain employees in excess of its final offer; that by engaging in the foregoing acts and conduct the strike which commenced on April 28 was prolonged and converted into an unfair labor practice strike commencing June 2. The Respondent's answer denies the commission of any unfair labor practices. All parties were afforded full opportunity to appear, to introduce evidence, and to examine and cross-examine witnesses. Briefs filed by the General Counsel, the Respondent, and Randolph E. Roberts have been carefully considered. Upon the entire record in the case, and from my observation of the demeanor of the witnesses and having considered the posthearing briefs, I make the following: I All dates hereafter are in 1976 unless otherwise stated. 550 ROBBINS COMPANY FINDINGS OF FACT 1. JURISDICTION Robbins Company, a Washington corporation, is en- gaged in the business of providing engineering services and the design and assembly of drilling and tunneling equip- ment in Seattle, Washington. In the course and conduct of its business operations during the past 12 months, the Respondent sold and shipped from its Seattle, Washington, plant products valued in excess of $50,000 to points outside the State of Washington, and received goods and materials valued in excess of $50,000 directly from outside the State of Washington. The Respondent admits, and I find, that all times material herein the Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOL VED The Respondent admits, and I find, that Driver Sales- men & Warehousemen Local No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. herein called the Union, is now, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. The Union commenced its organizing efforts at the Respondent's Seattle operations in the fall of 1975. and culminated in a Board-supervised election on December 31, 1975, and certification in a unit composed of all material control employees employed by the employer at its facility located at 650 South Orcas Street, Seattle, Washington, including plant clerical employees, excluding office clerical employees, professional employees, guards, and supervisors as defined in the Act, and all other employees. Following certification, the Union and the Respondent exchanged initial contract proposals during January and February, and during the months of March and April met once or twice a week. Robbins and Gannett were present at all of the meetings, and Gannett was the Respondent's spokesman. On April 27, the day prior to the commence- ment of the strike, the Respondent presented the Union with a complete draft which incorporated all items agreed to during prior meetings, together with the following wage rate proposal (G.C. Exh. 9): APPENDIX "A" WAGE RATES III. ISSUES 1. Whether Respondent permanently replaced Roberts at a time when he had neither joined a strike nor communicated any intention to participate in the strike and was incapable of making a decision as to whether he would engage in the strike. 2. Whether Brian Scott, Michael Tracey, and John McKillip were lawfully terminated for picket line miscon- duct. 3. Whether Respondent unilaterally granted a wage increase to Barbara Madison on June 2, in excess of its final offer to the Union. 4. Whether, on June 2, Respondent's acts and conduct prolonged and converted an economic strike into an unfair labor practice strike. IV. THE ALLEGED UNFAIR LABOR PRACTICES A. The Setting Respondent is engaged in the design and manufacture of drilling and tunnel boring equipment in Seattle, Washing- ton, with subsidiary companies located throughout the world. Richard Robbins is Respondent's president; Kristen Broadfoot is the assistant to the president; Laverne Stone is the material control supervisor; Donald J. Zier is the manager, materials and schedules; William Haggard is the assistant manager under Zier; Joe Mascarello is the manager of manufacturing; and Lenore Unger is the secretary to the president. Casey Kent is the cost account supervisor and David E. Gannett is the Respondent's attorney with respect to labor relations and its chief spokesman during negotiations with the Union. PERFORMANCE LEVEL CLERICAL Entry Intermediate Experienced WAREHOUSE & DRIVER PERSONNEL Entry Intermediate Experienced Exceptional Monthly Rate $400 651- 751 $650 750 400 - 750 751 - 900 901 - 1,050 1,051 - - As can be seen, the proposal divides the clerical employees into three levels of performance, entry, interme- diate, and experienced, and the warehouse and driver personnel into four levels of performance, entry, intermedi- ate, experienced, and exceptional. While all levels but the "experienced" level in the clerical group and the "excep- tional" level in the warehouse and driver personnel group have lower and upper wage limits, the highest levels in the two groups list only a lower limit. The Respondent proposed that the "placement of individuals... within the rate ranges, in each classification and grade level, would be within the management prerogative of the employer." The fact that the highest performance level in each of the two groups had no high limit, according to Gannett, meant that there would be no "cap" on those levels, and that the proposal established only a minimum for those two levels. Gannett also offered the union representatives a schedule (G.C. Exh. 8) listing the names of the employees, their present salaries, the proposed salary increases for each, 551 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their performance level classification or placement, and their new proposed salary. 2 The parties agreed to meet again on May 18. On April 28, the strike commenced, and picketing continued from that date until sometime during the second week in July.3 At the May 18 negotiating session, at which a Federal mediator was present, the outstanding issues were dis- cussed and the Respondent advised the union representa- tives that the pickets had engaged in certain misconduct, including pickets following employees to their homes, spitting on nonstrikers, and soliciting acts of prostitution. Gannett told the union representatives that "the company would have to take some sort of action for further improper actions." Agreement was made to resume negotiations on May 25. On May 24, a complete contract draft was prepared and delivered to the Union by messenger, along with the Respondent's "wage rates" proposal (G.C. Exh. 9) and proposed wage increases (Appendix A). On May 25, the parties again met with the Federal mediator. The entire work force on strike, consisting of 9 or 10 employees, was also present during the first part of the meeting. Again, the Respondent's representatives brought up what they consid- ered to be picket line misconduct, and Gannett stated it had been reported that Scott had solicited an act of prostitution with one or more employees; that Tracey had followed individuals home; that Tracey and McKillip had been engaged in acts of spitting; that the Respondent was investigating these matters which could result in discipline, including discharge; and that further acts of misconduct would be treated in a similar manner. At that point the striking employees left and the Union and the Respondent resumed negotiations. Apparently little if any progress was made, and the meeting was adjourned to June 2, at which time both of the parties were to present their best and final offer. Gannett testified that no progress was made at the June 2 meeting and that he advised the Union that it appeared the parties were at an impasse, and "that the employer would selectively implement its final proposal." There has been no contact between the Union and the Respondent since that meeting; however, in mid-June, Gannett was contacted by the Respondent concerning a "baseball bat" incident, to be discussed hereafter, between Scott and a striker replacement, and Gannett contacted the Union's attorney regarding the matter. B. Case 19-CA-8637, Replacement of Randolph E. Roberts Roberts was employed by Respondent as a shipping clerk from July 15, 1975, until he was informed by letter dated June 3 that he had been permanently replaced on an unspecified date in May. The undisputed evidence shows that, following a blood donation for the spouse of a fellow employee in mid-March, Roberts was advised that he had hepatitis. He was hospitalized on March 23 and 24 and, following tests, was advised that he should get plenty of rest, cut down on the amount of work he was doing, and 2 G.C. Exh. 8 is attached as Appendix A. I Striker Joseph Tessier testified that while the pickets were withdrawn "as far as I know, it Ithe strke] hasn't ended yet." No evidence to the contrary was offered. Accordingly. in the absence of a showing that the consume no alcohol. Roberts advised his supervisor, Laverne Stone, of the situation, and of the possibility that he might be absent due to quarantine. Prior to the onset of the illness, however, Roberts had received authorization for a vacation commencing April I until April 19. On his doctor's recommendation, Roberts went on vacation as scheduled. It had been arranged that he would not report back to work until noon on April 19 since he was scheduled for tests at the hospital on that morning. Roberts reported for work about noon but, after about 2 hours, went home because he was not feeling well and "had a cough which I could not contain." He was at home sick on April 20 and, on Wednesday, April 21, kept a doctor's appointment at which time he learned he had a temperature of 105 degrees. 4 He was immediately placed in the hospital where it was ultimately determined that he had strep pneumonia, and that there was a pocket of water in the chest cavity surrounding the left lung. After several days and several unsuccessful attempts by surgery to do so, the water in the chest cavity was finally drained, and as a consequence Roberts' fever broke and he began to recover. Roberts was in the hospital from April 21 until his discharge on May 6. On April 28, the strike referred to heretofore commenced. As he was in the hospital, Roberts was not consulted nor did he take any part in the decision to strike. Further, while he was not physically capable of picketing, he expressed no desire to engage in the picketing and in fact declined to accept union strike benefits voted him by his fellow employees. The record shows that at no time did Roberts inform anyone that he intended to participate in the strike. While Roberts was confined in the hospital, a number of persons employed by the Respondent visited him. On one occasion after the strike commenced, Scott took a picket sign to the hospital because "I had been up there on a previous occasion and it was a typical hospital room and we [Scott and Tracey decided it would be nice to have some color in there." Tracey used adhesive tape to stick the sign on the wall.5 They also took Roberts a red "Kenworth baseball hat," identical to those worn by the strikers. The record shows, however, that Roberts never wore the hat. During this time, Roberts was confined to his bed with a tube inserted in his chest cavity in an abortive attempt to drain the liquid from his lung cavity. Haggard testified that on or about May I he visited Roberts in the hospital and noticed the strike sign on the wall. Roberts advised him that Scott had brought it and placed it on the wall. No further mention of the strike was made. Haggard told Unger, Robbins' secretary, about the sign. On May 5, Unger visited the hospital and observed the strike sign and the red baseball hat. She testified that Roberts told her that his friends had brought the sign "and that if he knew that Laverne Stone was coming to see him, strikers had sought reinstatement with the Respondent, I find that at the time of the hearing in this matter the stnke was still in effect. Roberts went to the appointment in a wheelchair. 5 Someone also placed a travel poster on the wall. 552 ROBBINS COMPANY he would take it down. He knew it would offend her; otherwise, it didn't bother him to leave it there."6 The following day she reported those facts to Robbins. On May 6, Roberts was discharged from the hospital. He testified, without contradiction, that, prior to his leaving the hospital, he had several phone conversations with Stone wherein he kept her abreast of his condition and informed her he was looking forward to returning to work as soon as he was well. According to Stone, when Unger had visited Roberts on May 5, Roberts apparently had told her that he wanted to talk to Stone and Haggard after he left the hospital. Stone testified that Roberts also called her on May 6 and stated he wanted to meet her "away from the Company," and that she told him, "I was advised it would be improper to meet with him on a personal basis and I could not do so." There is no indication in the record that the subject of the strike was discussed at this time.7 Upon his return home from the hospital, Roberts received the following certified letter dated May 3: GROUP INSURANCE By law (Washington House Bill No. 239), we are required to offer to you the regular group insurance plan consisting of life and health and accident coverage for a maximum period of six months - if you are on strike that long. However, you must elect to continue the insurance, and pay the entire premium for it. In your case, the premium amounts to the following: life health & accident employee $ 5.30 employee 27.42 dependent XXXXX TOTAL $32.72 Please complete the attached form stating whether or not you elect to continue the insurance, and if you do, attach your check in the amount of $32.72 to cover the premium for the month of May - and return it by me by May 8th, 1976. Subsequently, forward your check in the same amount on the first of each month thereafter until the strike is settled, or up to a maximum of 6 months. THE ROBBINS COMPANY /s/ K. V. Broadfoot Executive Assistant to the President Upon receipt of the letter, Roberts immediately called Broadfoot. Their versions of the conversation differ. Roberts testified, in substance, that Broadfoot told him the letter was meant for those employees on strike and that, since Roberts hadn't been asked to take a position 6 Stone never visited him in-the hospital. Either two or three of the pickets returned to work on May 6. "The record shows that Roberts had not yet been asked his position regarding the strike. regarding the strike, the letter didn't apply to him.8 He testified further that they discussed the fact his present illness was covered by insurance but that, if he was injured on the following day, he would not be covered. According to Roberts, it was because he understood he did not have medical coverage for anything that happened after his illness and release from the hospital that he told Broadfoot that he would return the form with the money. He testified without contradiction that he made a specific notation on the form "so it could not be construed that I was on strike." Broadfoot's version of the conversation was that Roberts was concerned whether his illness was covered by insur- ance, and she explained it was, and he said he would mail in a check but that it might be a little late since he had received the letter late, and she said it would be accepted. She denied telling Roberts the letter did not apply to him or that he need not make a decision as to whether or not he was on strike. The insurance form, which was in the Respondent's possession, was not produced at the hearing. nor did Broadfoot refute Roberts' testimony regarding the notation on the form. I therefore credit Roberts' testimony that he made a specific notation on the form "so it could not be construed that [he] was on strike." Moreover, I credit Roberts' version of the entire conversation over that of Broadfoot whose testimony was sketchy and further questionable in the light of her testimony that Roberts' concern was whether his present illness was covered by insurance. Speaking practically, Roberts had been released from the hospital the day before, after having incurred hospital, doctor, and other medical expenses over a span of 16 days. Having been released from the hospital, there is not the slightest doubt in my mind but what Roberts knew whether or not his illness had been covered by insurance, and consequently there was no reason to ask that question of Broadfoot. I therefore credit his testimony over hers and reject the Respondent's contention that the return of the premium for insurance coverage pursuant to the May 3 letter was an indication that Roberts was on strike. His actions indicate, I find, that he wanted to be covered by insurance, but that he wanted it understood his action was not to be taken as an indication that he was a striker. On or about May 10 or II, Roberts called Stone and advised her that he was convalescing at the home of a cousin in Redmond, a suburb of Seattle, and he hoped to be able to return to work on June 7. Stone admits that during the conversation she asked Roberts on three occasions "what his position was regarding the strike,"9 and that he responded he didn't feel "well enough to make a political decision and he saw no advantage to do so at this time." Stone's testimony regarding the rest of the conversation was: "I said some people in the Company are disturbed that there was a strike sign in your room. He replied that Brian [Scott] brought it to [him], and I said, I was told you asked for it. There was a pause and he said, all right, I did." Roberts testified that since he had been so ill at the time Scott brought the picket sign, that he did not know whether he had asked Scott to bring it, and that he 9 While this question is not alleged as a violation, in Southwesrern Electric Power Company. 216 NLRB 522 (1975). the Board indicated such interrogation might violate Sec. 8(aX I). 553 DECISIONS OF NATIONAL LABOR RELATIONS BOARD responded, "I may have ... but, it didn't matter, I said I had a lot of things on the wall." He testified, as she confirmed, that he stated he planned to return to work on June 7.'° However, on rebuttal Stone stated she would have held a position for Roberts if he had given a firm response that either he would or would not have come back to work. I find nothing equivocal in his statement that he planned to return on June 7, and there was no evidence it was limited in any way with respect to the strike. Furthermore, Roberts testified, without contradiction, that he told Stone that the Union had not put any pressure on him to take a side on the strike issue, and that the only contact he had with the Union was the visits with his fellow workers who had voted him strike pay which he had declined to accept. Roberts' next contact with the Respondent was by letter to Mrs. Stone dated May 24, wherein he stated he had doctor's appointments on May 27 and June 3, 8, and 10; he hoped to be back at work on Monday, June 14; and hoped it would be possible for the person performing his job to spend a day or so reorienting him. The Respondent's response was the following letter dated June 3: Dear Ray: We acknowledge receipt of your letter of May 24th, stating that you are planning to return to work about June 14th. Since you were reluctant to advise us as to whether or not you were on strike, but you displayed the strikers' sign in your hospital room, we were forced to conclude that you were on strike. Therefore, your position was filled with a permanent replacement and there are no openings at this time. However, we have taken note of your desire to return to work, and will keep your name on file. Yours very truly, THE ROBBINS COMPANY /s/ Donald D. Zier, Manager Materials and Schedules Roberts immediately called Zier, whom he located at home, and was informed no job was available for him and that Zier was unable to give him the date of his permanent replacement. As Stone had already left work that day, Roberts talked to Robbins and told him he wanted to come back to work, and asked for the date of his replacement, which Robbins was not able to give him. According to Roberts, it was agreed that Roberts would call Robbins on Monday, June 7, and find out whether the June 3 letter would be rescinded, or when he had been permanently replaced so that he could apply for "welfare or whatever I had to do to stay alive." Robbins subsequently told him that he had been replaced on May I .1 1 'o Scott testified Roberts had not asked for the picket sign. "i On June 5 or 8, Roberts talked to Stone by telephone. Inasmuch as Roberts had already been told he had been replaced, there is little point in rehashing their testimony. Suffice it to say that Stone was obviously Conclusions Stating "the only issue is whether or not Respondent's belief that Roberts ratified the strike was reasonable," the General Counsel contends the Respondent's action in replacing Roberts was unreasonable since there was no clear-cut indication by Roberts that he supported the strike. Citing Marathon Electric Mfg. Corp., 106 NLRB 1171 (1953), enfd. 223 F.2d 338 (C.A.D.C., 1955), the Respon- dent contends "there is a strong inference in the case law that there is a duty upon the employee to advise the employer concerning his sympathies with respect to the strike," and that the Respondent concluded Roberts was a striker because he had a strike sign in his hospital room; elected to continue health insurance coverage on a self-pay basis made available by state law to all striking employees; upon specific inquiry from employer representatives, he refused to take a position with respect to the strike; and he stated, if he were well enough to return to work, he probably would not cross the picket line. Since he failed to disavow strike sympathies, contends the Respondent, "the employer was fully justified in concluding that (a) he was sympathetic to the objectives of the strike action, (b) he was in fact on strike, and (c) he could be properly replaced as an economic striker." In Marathon Electric, on which the Respondent herein relies, the union struck on February 28 in violation of a no- strike clause, and the employer countered with a lockout until March 18. A number of employees, not at work on the day of the walkout because of injury, illness, leave of absence, or other excused absence, were terminated by the respondent. In finding the company did not violate the Act by discharging those employees, the Board noted they were members of a strong and militant local union under a contract which made membership a condition of employ- ment; that the walkout received the complete support of the employees in the plant at the time it took place; and there was no showing of dissent among those employees as to whether the walkout should take place. The Board went on to state that "any inference that these individuals did not share in that action ... is effectively dispelled by other evidence pointing strongly to the contrary." The "other evidence," noted by the Board, was the presence of many employees at the membership meeting which appears to have taken place contemporaneous with the walkout; the fact that none of the employees made any attempt to disassociate themselves from the walkout or advise the Company that he was not sharing in the group strike action taken by his bargaining representative; that, at the hearing, 9 of 11 employees stated they would not have accepted an offer of reinstatement which did not include all other members of the Union, indicating, the Board stated, that, with a few "possible exceptions," all employees in the disputed categories were in complete accord with the action taken by the Union; and, in spite of the fact each employee received a letter from the Company informing him that "participants" in the strike would be considered to confused when she testified as to whether certain statements were made during this conversation or that of May 10 or 1I. I therefore credit Roberts' version. 554 ROBBINS COMPANY have forfeited any rights as employees, no employee took any steps to indicate that he was not a participant. More recently the Board considered a similar issue in Southwestern Electric Power Company, 216 NLRB 522 (1975). The Board majority, contrary to the dissenting assertion of then Acting Chairman Fanning that the issue was whether strikers on sick leave had a Section 7 right to refrain from declaring their position on the strike during the period they were medically excused, concluded the issue was whether the respondent's belief that the employ- ees on sick leave ratified and supported the strike was reasonable. Stating that the respondent could not have interrogated the employees as to their sympathies without violating Section 8(aX1 ),12 the majority concluded that "in the absence of any indication whatsoever that the six employees did not support the strike, it was entirely reasonable for Respondent to assume that they did." Noting that all of the six employees on sick leave in that case "were members of the Union," the Board found that the following factors indicated that the employees effec- tively ratified the strike and thus did, in fact, support it, bearing out the reasonableness of the company's assump- tion: (1) They raised no protest when their sick leave payments were terminated; and (2) with one exception testified that they would not have crossed the picket line had they been able to work when the strike began. "Under such circumstances," stated the Board majority, "we cannot agree with our colleague's position that Respondent was required, in effect, to subsidize the strike effort through continued disability payments until such time as the employees decided to publicly air their sympathies." Upon an analysis of the foregoing cases and the record in this case, I conclude the evidence does not support a finding that the Respondent could reasonably belive that Roberts ratified and supported the strike. Unlike Marathon Electric, there is no showing in the instant case that Roberts was a member of the Union, and in light of the fact that one employee declined to join the strike at its inception and three abandoned the strike within a few days, it is clear that the strike action did not receive the "complete support" of the employees.' 3 Fur- ther, Roberts did not receive a letter from the Respondent, as did the employees in Marathon Electric, informing them that "participants" in the strike would forfeit their rights as employees. The instant case is likewise distinguishable from Southwestern Electric. In finding it reasonable for the company to assume the employees supported the strike, the Board relied on a number of factors not present here. The employees on sick leave there were members of the union: there was no showing Roberts was a union member; the employees raised no protest when sick leave payments were terminated; there was no showing that Roberts received any sick leave payments, and the inference is strong that he did not; employees testified they would not have crossed the picket line had they been able to work when the strike started; Roberts was not asked that question, and the creditable evidence fails to show he ever stated he would not cross the picket line; rather, the evidence shows that on several occasions he told Stone he intended returning as 12 See fn. 9. 13 At the time of the strike. there were 14 unit employees. including Roberts. soon as he was physically capable, which he estimated in early May to be on June 7. The four factors which the Respondent relies on to justify its conclusion that Roberts was a striker, and therefore subject to replacement, are far from convincing. Haggard and Unger, who visited Roberts in the hospital, were both informed that Scott had brought the strike sign to the hospital, and Unger had also been informed that Roberts would remove the sign if Stone visited him since it might offend her. This information was relayed to Robbins. Further, Stone broached the subject of the picket sign in a telephone conversation with Roberts shortly after his release from the hospital, and she was also told that Scott had posted the sign. The most significant aspect of that conversation, however, was Roberts' eagerness to return to work as soon as he was physically able, which he hoped would be on June 7. It is noteworthy that his return was not dependent on the end of the strike. Moreover, Roberts had informed Stone that he had declined strike pay which had been offered him by the Union. Regarding the Respondent's claim that Roberts' election to continue health insurance coverage on a self-pay basis, in accordance with the letter of May 3, is indicative of his status as a striker, for reasons stated above, I have credited Roberts' testimony over that of Broadfoot. I am convinced that Broadfoot understood, and that the form which Roberts returned to Respondent with his check stated, that the payment for insurance coverage was not to be construed that he was on strike. I also do not credit the testimony of Stone, which Roberts denied, that he told her that if he were well enough to return to work he probably would not cross the picket line. As Roberts testified, he informed Stone that the Union had not pressured him to take a side over the strike issue, and the evidence convinces me that his prime concern was to regain his health and to go back to work. While it may have been that he hoped, for one reason or another, that the strike would be over before he in fact did return to work, his conduct was not such that it would lead one reasonably to believe that he ratified and supported the strike and intended to withhold his services. Roberts' conduct throughout was more consistent with an inability to work because of his illness rather than withholding services concertedly with other employees, and with a desire to return to work as soon as he was physically able, regardless of the strike situation. Further, since Roberts was not receiving any sick pay from the Respon- dent, this is not a case like Southwestern Electric Power where it could be argued that the employer was required "to subsidize the strike effort through continued disability payments until such time as the employees decided to publicly air their sympathies." In sum, I find, on the facts of this case, that Roberts had the Section 7 right to either join in or refrain from joining the strikers, and that the Respondent, without a reasonable belief that he ratified and supported the strike, permanent- ly replaced him in violation of that right, and that such conduct was inherently destructive of employee rights in violation of Section 8(a)(3) and (1) of the Act. 555 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Case 19-CA-8731 1. Alleged picket line misconduct McKillip, Scott, and Tracey were employed as ware- house and driver personnel until they received the Respondent's letters dated June 30 advising each that he had "been terminated as of June 2, 1976 because of picket line misconduct." The General Counsel contends the alleged misconduct "is clearly insufficient to justify" termination. The Respondent contends McKillip was discharged because he spit directly on employees on two occasions and because he, along with Scott, vandalized a truck while it was parked at Creative Pictures Framing Company; that Tracey was terminated for having spit on an employee, for having tossed a milkshake on the car of a nonstriking employee, for having knocked an employee's hat off his head, and for having followed an employee home; and that Scott was terminated for soliciting acts of prostitution, for having vandalized a truck parked at Creative Pictures Framing Company along with McKillip, and for having threatened an employee with a baseball bat. The spitting incidents, which the strikers did not deny, were, with one exception, directed at David Cole who was hired on May 4 as a receiving clerk to replace a striker. The record shows that Cole drove a forklift through the picket line several times every day and that verbal exchanges, sometimes including uncomplimentary and insulting exple- tives, were not uncommon from either side. It was in this context that the spitting incidents occurred, and which provoked Tracey to reach inside a truck cab and flip Cole's hat from his head. Cole received no injury and in fact Tracey did not touch him. In the absence of any injury. and as spitting and expletives, while not condoned, long since have been expected and accepted in strike situations, I find these reasons insufficient upon which to base lawful discharges. See, for example, Alcan Cable West, a Division of A lcan Aluminum Corporation, 214 NLRB 236, 248 (1974). The alleged vandalism of a company truck involved strikers Scott and McKillip and striker replacement Baird. About May 28, Baird drove one of Respondent's pickup trucks to Creative Picture Framing Company, where he parked at the rear and went inside for 10 minutes. He testified that Scott and McKillip parked alongside him, and that when he returned he noticed that the truck was sitting at a peculiar angle. Upon investigation he found that a valve stem on one of the tires had been cut off, that the coil wire, which he subsequently found in the weeds on adjacent property, had been removed, and that the license plate which had been taped in the rear window was missing. As Baird apparently ran the battery down trying to start the truck, and as there was no jack with which to change the flat tire, he testified that the truck had to be towed. Baird did not observe either Scott or McKillip do anything to the truck. Scott and McKillip testified that they followed Baird to Creative Picture Framing, but both denied they drove into the parking lot, instead they parked momentarily in the street. They claimed they thought the trip to Creative Picture Framing may be a ruse and that the Respondent was going to try and sneak a load out of the shop on the 2- ton truck; therefore they returned to the shop without either man having gotten out of the car. If Scott and McKillip are credited, then they would not have been present when the damage was done to the truck. If Baird is credited, an unidentified person or persons damaged the trucks. The record does not show that any investigation or inquiry was made of Creative Picture Framing personnel to ascertain whether anyone else may have been observed in the area. As the Respondent's trucks were identifiable by signs painted on their sides, and known to cross picket lines at the premises of other employers, it is possible that other individuals were responsible for the damage. As with the fuel line incident related hereafter, it does not appear that the Respondent, in a dispassionate way, tried to access who was to blame for these occurrences, but rather took a partisan approach and automatically placed the blame on the strikers. Further, it is not beyond the realm of possibility that damage could have been inflicted on the truck by striker replacements who were concerned their jobs were in jeopardy until strikers were discharged. Without some corroborative evidence that the truck was in fact damaged, that an effort was made to determine who was responsible for the damage, and that Scott and McKillip were in fact responsible, I find it was unreason- able for the Respondent to blame the pickets. Baird testified that, in early June, McKillip followed him as he made a delivery to Jenson Brothers, and that when he left he noticed the gas cap was missing. Approximately 2 months later the truck stalled and it was determined that sugar had been put in the gas which plugged the fuel line and required fuel filter and pump replacements. The Respondent asks that I find on the basis of this evidence that McKillip took the gas cap in early June and at the same time put sugar in the gas tank which resulted in its clogging the fuel line, filter, and pump some 2 months later. The evidence is far too tenuous to make such a finding. Baird testified to another incident where a truck tire was slashed, but acknowledged that Scott and Tracey "were maybe about 10 feet away on the sidewalk." In early and mid-May, however, he testified Tracey spit on the wind- shield of a truck. Returned striker Brent Wilcox testified, and Tracey admitted, that in early May, as Wilcox was driving out of the parking lot, Tracey tossed the contents of a paper cup containing a milkshake onto the hood of his car, splattering onto the windshield. His vision was not blocked, and he drove on to the closest filling station where he cleaned it off. I conclude that the act of throwing the liquid contents of a milkshake in the general vicinity of the hood of the car is not properly within any reasonable definition of endangering lives and property. A splattered milkshake, while messy and no doubt annoying to clean up, certainly is not of such a grievous nature as to warrant the greatest amount of discipline an employer could impose, namely discharge. While the Respondent contends Tracey was guilty of following Cole home, the record shows that both men live in the same general direction and therefore traveled the same freeway, but that Cole exited from the freeway first and Tracey continued on in the direction of his home. It further appears there were several cars spaced between 556 ROBBINS COMPANY them. It is clear that Tracey did not follow Cole home. Hence, no merit is found to this contention. Stone testified that, sometime in early May, she was delivering a couple of parcels containing merchandise from the Respondent to the airport, and that Tracey followed her there and told the freight attendant at the airport that it was strike merchandise and asked that he not accept it. It was accepted, however. Tracey did not attempt to follow her home. Such conduct is clearly protected activity. In support of the Respondent's claim that Scott solicited acts of prostitution which disqualified him from reinstate- ment, Cost Accountant Supervisor Kent testified that, on one particular day, Scott made crude and obscene remarks and suggestions regarding sex, including an invitation to "make some extra money at his apartment that night." Scott's denial he made such statements was not convincing, and I credit Kent who impressed me that she was telling the truth. While the crude and obscene remarks made by Scott are not to be condoned, I find they did not constitute misconduct sufficient to disqualify Scott from reinstate- ment.'4 The language used to express disapproval of persons crossing picket lines seldom comports with the standards of ordinary discourse. While profane epithets which accompany and form an integral part of terroristic tactics are not protected, the Board has long viewed name- calling, without more, privileged under the free-speech provisions of Section 8(c). See, for example, International Longshoremens and Warehousemen's Union, C.I.O. et al. (Sunset Line and Twine Company), 79 NLRB 1487, 1505 (1948). While Scott's uncouth remarks were obviously made with the intent of enraging Kent, she did not impress me as a timid individual, and the record shows she did not hesitate to enter the Respondent's premises for work because of them. In these circumstances, it cannot be said that Scott's remarks intimidated, coerced, or restrained the nonstriker to whom they were addressed, or constituted sufficient reason upon which to base a lawful discharge. The Respondent contends further that Scott was termi- nated and is disqualified because he threatened an employee with a baseball bat. This incident involved two strikers, Scott and Tessier, and two striker replacements, Cole and Baird. The incident occurred on June 18, some 2 weeks after the effective date of his discharge, when Scott and Tessier, who had decided to engage in ambulatory picketing, followed Baird, who was driving a flatbed truck to the premises of another company, Sea-Fab. While the three men were at Sea-Fab, Cole arrived in the pickup truck.' 5 The participants agree that after Cole arrived he and Baird got into the flatbed truck and made a delivery, and then returned to Sea-Fab, where Cole got back into the pickup. They disagreed, however, regarding what took place thereafter. It appears, however, that, as Baird turned into the street as he left Sea-Fab, Scott, driving his open- top MGB sports car, attempted to cut in behind him and in front of Cole in the pickup, while Cole sought to prevent A" See Central Massachusetts Joint Board, Textile Workers Union of America, AFL-CIO (Chas. Weinstein Company, Inc.), 123 NLRB 590. 603 (1959). where a picket made a vile and obscene remark in French to a female nonstriker which in effect accused her of prostitution and sexual perversion. · 1 Cole testified Stone wanted him to accompany Baird to be sure no vandalism was done to the larger truck. '1 Scott was on a softball team and carried other sporting equipment in the back of his car. him from doing so, and crowded him off the road to the right. Scott, enraged, then apparently sought to pass Cole to the left so he could get in between the two trucks. As Scott inched to the right in an effort to get between the two, it appears that Cole inched closer to the flatbed so that Scott could not get between them. During this time Scott and Cole were yelling unpleasantries back and forth. It was in this state that they all arrived at a stop sign, Baird in the lead with Cole and Scott jockeying for the position immediately behind him. Scott, whose sports car had come out second best in another encounter with another pickup truck, reached into the back of his car, grabbed a baseball bat, and ran around to the front of the two vehicles waving the bat, and between expletives threatened to either "cave your [expletive ] head in," "knock your head off," or kill the "little son of a bitch," if Cole hit Scott's car with the pickup.i 6 At this point Baird got out of the larger truck and came back, and Scott either reiterated his threat to Baird, or told him to mind his own business and get back into the truck. 7 In any event, no blows were struck since the MGB came through unscathed, and everyone got back into their respective vehicles and drove off. Scott apparently followed for a while but eventually gave up and, after first returning to the Respondent's premises, went home and called the police. The record does not disclose what, if anything, he reported to the police or what they did. He later talked to Mrs. Stone regarding the incident. The evidence convinces me that Scott's conduct was not unprovoked, and that Cole provided the provocation by crowding Scott's car off the road as Scott attempted to follow Baird as they left Sea-Fab, and later by closing in behind Baird as Scott passed to the left in an effort to get around him. Without doubt both men were operating their vehicles in a foolish, if not unlawful, manner. I note that there was no physical contact between the participants, and Cole's response to Scott's invitation to get out of the truck shows that he did not interpret what Scott said as a direct threat of physical harm.'8 Moreover, the evidence shows Scott did not make any effort either to damage the truck with the bat or to attack Cole. Scott's threat was directed at Cole's driving, and only tangentially related to picket line conduct. In these circumstances, and in view of the provocation, I conclude Scott's conduct was not so serious as to render him unfit for further employment.s 2. Unilateral wage increase Paragraph 8 of the complaint alleges that on or about June 2 Respondent, in the course of negotiating, made a final offer covering terms and conditions of employment. including wages, and unilaterally granted wage increases to certain employees in excess of the final offer. Barbara Madison commenced working for Respondent on February 17, 1975, as a clerk-typist at $475 per month (Entry Performance Level under Respondent's wage 17 Cole had remained in the pickup. and Scott was standing approxi- mately 10 to 15 feet away to the front of the two vehicles. 1R Cole asked Scott, "Was he going to spit on me like his other little friends did .... " 19 It is noted that this incident occurred after June 2. the effective date of Scott's discharge. 557 DECISIONS OF NATIONAL LABOR RELATIONS BOARD structure, G.C. Exh. 9). On July 26, 1975, she received a wage increase to $575 per month (Experienced Perfor- mance Level). Madison joined the strike on April 28 and on May 6 contacted Stone about returning; she thereafter returned to work as a clerk-typist or "clerical - material control," job titles which, Stone testified, were synony- mous. On April 27, the day before the strike commenced, the Respondent presented to the Union a complete contract proposal, including a proposed wage-rate schedule (G.C. Exh. 9), and a schedule listing the "proposed wage rates" of each of the employees (Appendix A). This constituted the only wage proposal made by the Respondent, was resubmitted to the Union on May 24, and was outstanding on June 2, when the Respondent announced that the parties were at an impasse, and "that the employer would selectively implement its final offer." On that date an authorization granting Madison a wage increase of $225, from $575 to $800, per month was issued, and on June 3 it was approved, the wage increase being retroactive to Monday, May 10, which coincides with her abandonment of the strike and her return to work. No prior notice was given to the Union that Madison's new wage rate would exceed $650, the amount specified in the schedule of proposed new salaries (Appendix A) submitted to the Union during negotiations. Stone testified the wage increase was granted because, after she returned to work, Madison was the only experienced employee in the group, and that her added responsibilities, which consisted of assisting in training the new employees, prompted the decision to review and increase her pay. The increase, contends the Respondent, is within the rate range in the classification scheme proposed to the Union. The General Counsel contends, however, that Madison's increase was over and above the only wage proposal made by the Respondent, and consequently a refusal to bargain. Stone's testimony that Madison's raise and elevation from Entry Performance Level to Experienced Perfor- mance Level was warranted in view of her added responsibilities was not convincing. Madison was no more experienced on May 10 when she abandoned the strike than she had been less than 2 weeks earlier when she became a striker, and it could hardly be argued she gained any job experience during the strike. Her added responsi- bilities, according to Stone, consisted of assisting Stone in training the newly hired employees. Otherwise, it appears Madison's job description and duties remained the same. As is clear from the record, in its last and final proposal to the Union, which was delivered to the Union on May 24 and was outstanding on June 2 when Madison's wage increase was initiated, the Respondent proposed to raise Madison's pay from $575 to $650, an increase of $75. Instead, although she still occupied the same job, she was given an increase of $225. It is clear from Stone's testimony - "We had intended to do this but we had to wait until it was - we were told it was all right," that the Respondent intended giving Madison substantially more than that contained in its wage proposal, but that its intent was never conveyed to the Union.2 0 In these circum- 20 Respondent's action in elevating Madison from "Entry" to "Experi- enced" performance level is similar to the granting of superseniority. stances, it is found that the increase in wages constituted unilateral action and a refusal to bargain within the meaning of Section 8(a)(5) of the Act. N.LR.B. v. Benne Katz, et al., d/b/a Williamsburg Steel Products Co., 369 U.S. 736 (1962). 3. Conversion of economic to unfair labor practice strike The complaint alleges that by discharging Scott, Tracey, and McKillip on June 30, effective June 2, and by granting Madison the unilateral wage increase on June 2, the economic strike was converted to an unfair labor practice strike on June 2. While the evidence discloses picketing ceased about July 12, it was not shown that any of the strikers have sought reinstatement since that date, and Tessier testified, without contradiction, that, "As far as I know, it [the strike] hasn't ended yet." I find, therefore, that while the picketing has ceased, the strike has not been abandoned and the Respondent's unfair labor practices, on both June 2 and 30, have had the effect of prolonging the strike. Hence, I find that the economic strike was, by reason of the Respondent's June 2 unilateral conduct, converted to an unfair labor practice strike, and the Respondent is obligated to reinstate all strikers who unconditionally apply for reinstatement, discharging, if necessary, all replacements hired after June 2 to take the place of strikers during the strike. The General Counsel cites no authority to support his position that the June 30 discharges of Scott, Tracey, and McKillip had the retroactive effect of converting the strike to an unfair labor practice on June 2. It is hard to see how, between June 2 and June 30, there could have been a causal connection between the termina- tions and the prolonging of the strike, since neither the Union nor the employees had any knowledge of the terminations until after June 30. Accordingly, I find that their unlawful discharges on June 30 had the effect of further prolonging the unfair labor practice strike. See, for example, Typoservice Corporation, 203 NLRB 1180 (1973). V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent as set forth in section IV, above, occurring in connection with the operations of the Respondent as described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. Vl. THE REMEDY Having found that the Respondent engaged in certain unfair labor practices, it will be recommended that it cease and desist from such conduct and take certain affirmative action necessary to effectuate the policies of the Act. Having found that the Respondent permanently replaced Roberts in violation of Section 8(a)(3) and (1) of the Act, it 558 ROBBINS COMPANY is recommended that the Respondent be required to offer Roberts reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position without prejudice to his seniority or other rights and privileges, dismissing, if necessary, anyone who may have been hired or retained to replace him, and make him whole for any loss of earnings he may have suffered, by payment to him of the amount he normally would have earned as wages from the date he was medically capable of returning to his position, to the date of an offer of reinstatement. Backpay shall be computed on a quarterly basis as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), plus interest at the rate of 6 percent per annum, Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Having found that the Respondent discriminatorily discharged Brian Scott, Michael Tracey, and John McKil- lip on June 30, and that the strike was converted to an unfair labor practice strike on June 2, I shall recommend that, upon unconditional request, the Respondent be ordered to offer Brian Scott, Michael Tracey, and John McKillip immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, dismissing, if necessary, any persons hired after June 2, 1976, to replace them, and make whole such employees for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request, computed in accordance with the formula stated in F. W. Woolworth Company, supra, and with interest at the rate of 6 percent per annum, Isis Plumbing & Heating Co., supra. Such employees who were permanently replaced before June 2, 1976, shall be placed on a preferential hiring list for employment as positions become available, and before other persons are hired for such work. Priority for placement is to be determined by seniority or some other nondiscriminatory test. Having found that the Respondent unilaterally granted a wage increase in excess of its final offer on wages, it is recommended that, upon request, the Respondent be ordered to bargain collectively in good faith with the Union as the exclusive representative of its employees in the appropriate unit and, if an understanding is reached, embody such understanding in a signed, written agree- ment.21 Upon the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material herein, the Union has been the exclusive bargaining representative of the Respondent's employees within the meaning of Section 9(a) of the Act in the following unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: 21 Nothing in this Decision shall be construed to require Respondent to withdraw the wage increase found herein to have been granted unlawfully. 22 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the N. tional Labor Relations Board, the findings. All material control employees employed by the Employer at its facility located at 650 South Orcas Street, Seattle, Washington, including plant clerical employees, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, and all other employees. 4. By unlawfully replacing Randolph E. Roberts in violation of his Section 7 right to either join in or refrain from joining the strikers, and without a reasonable belief that he ratified and supported the strike, the Respondent violated Section 8(aX3) and (I) of the Act. 5. By terminating the job recall rights of Brian Scott, Michael Tracey, and John McKillip on June 30, 1976, effective June 2, 1976, the Respondent in each instance violated Section 8(a)(3) and (1) of the Act. 6. By unlawfully and unilaterally granting a wage increase to an employee in the above unit on June 2, 1976, the Respondent violated Section 8(a)(5) and (1) of the Act. 7. The strike, which commenced on April 28, 1976, was converted to an unfair labor practice strike on June 2, 1976, the date the Respondent unlawfully granted the unilateral wage increase. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 22 The Respondent, Robbins Company, Seattle, Washing- ton, its officers, agents, successors, and assigns, shall: I. Cease and desist from: (a) Permanently replacing employees who have not joined in or communicated an intention to participate in a strike. (b) Terminating the recall rights of unfair labor practice strikers who did not engage in disqualifying strike conduct. (c) Refusing to bargain collectively in good faith with Driver Salesmen & Warehousemen Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive representative of its employees in the following unit with respect to rates of pay, hours of employment, and other terms and conditions of employment: All material control employees employed by the Employer at its facility located at 650 South Orcas Street, Seattle, Washington, including plant clerical employees, excluding office clerical employees, profes- sional employees, guards, and supervisors as defined in the Act, and all other employees. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. 559 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Take the following affirmative action which will effectuate the policies of the Act: (a) Offer immediate and full reinstatement to Randolph E. Roberts to his former job or, if that job no longer exists, to a substantially equivalent job, without prejudice to his seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his unlawful permanent replacement in the manner set forth in the section of this Decision entitled "Remedy." (b) Reinstate, upon unconditional request, Brian Scott, Michael Tracey, and John McKillip to their former jobs or, if those jobs no longer exist, to substantially equivalent jobs, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any persons hired after June 2, 1976, to replace them; and make such employees whole for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional request, with interest at the rate of 6 percent per annum. The names of such employees for whom no employment is available by reason of their permanent replacement before June 2, 1976, shall be placed on a preferential hiring list based upon seniority, or some other nondiscriminatory test, for employment as jobs become available, in the manner set forth in the "Remedy" section of this Decision. (c) Upon request, bargain collectively in good faith with Driver Salesmen & Warehousemen Local Union No. 117, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, as the exclusive bargaining representative of the employees in the appropriate unit described above, concerning rates of pay, wages, hours of employment, and other terms and conditions of employment, and, if an agreement is reached, embody it in a signed agreement. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this recommended Order. (e) Post at its Seattle, Washington, facility at 650 South Orcas Street copies of the attached notice marked "Appen- dix B."23 Copies of said notice, on forms provided by the Regional Director for Region 19, after being duly signed by the Company's authorized representative, shall be posted by the Company immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Company to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for Region 19, in writing, within 20 days of the date of this Order, what steps it has taken to comply herewith. 23 In the event that the Board's Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX A PROPOSED WAGE RATES N ame Albertus Engkraf Madison Ougl and Roberts TOTAL Castner $ Gatherers McKillip Richards Scott Stein Tessier Tracey Wilcox TOTALS $ 7 Present In- New New Per- Salary crease Level Salarv Cent $ 675 $ 75 3 $ 750 500 75 575 75 575 650 525 100 2 625 750 $3 ,025 800 750 50 3 800 $375 $ 75 800 75 $3,400 12.4 $ 875 825 875 650 4/hr. 1 693 equiv. 950 75 3 1,025 900 75 3 975 750 75 2 825 850 75 3 925 725 ,1 75 75 2 $643 800 $7,818 9.0 560