The Dow Chemical Co.

82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Dow Chemical Company and United Steelworkers of America, AFL-CIO. Cases 7-CA-10338 and 7-CA-10598 FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT January 7, 1975 DECISION AND ORDER BY ACTING CHAIRMAN FANNING AND MEMBERS KENNEDY AND PENELLO On July 31, 1974, Administrative Law Judge Ralph Winkler issued the attached Decision in this proceed- ing. Thereafter, General Counsel and the Charging Party filed exceptions and supporting briefs, and the Respondent filed an answering brief to the General Counsel's and Charging Party's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the attached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order.' 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 and hereby orders that the complaint be, and hereby is, dismissed in its entirety. I Acting Chairman Fanning would not adopt the Administrative Law Judge's conclusion that a bargaining order would not, in any event, be appropriate in this case under the rule of Herbert Bernstein, et a! d/b/a Laura Modes Company, 144 NLRB 1592 (1963), and Allou Distributors, Inc., 201 NLRB 47 (1973). Those cases did not involve picket line misconduct which might be anticipated in an emotion-packed and otherwise legitimate stoke situation. In those cases, as distinguished from the instant case, the union acted in open, flagrant, and violent disregard of employer and employee rights in a totally inexcusable manner. DECISION STATEMENT OF THE CASE RALPH WINKLER, Administrative Law Judge : Hearing in this matter was held on various dates, beginning on March 5 and concluding on April 24, 1974, upon an amended consolidated complaint issued by the General Counsel on October 21, 1973, and Respondent's amended answer. Upon the entire record in the case, including my observation of the demeanor of witnesses and upon consideration of briefs,' I make the following: Respondent is a Delaware corporation with plants in various States, including a petrochemical plant in Bay City, Michigan. I find, as the parties agree, that Respondent is engaged in commerce within Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, and its Local 14055 (formerly, until approximately August 1972, International Union of District 50, Allied and Technical Workers of the United States and Canada), herein jointly called the Union, are labor organizations within Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Introduction Respondent and the Union have been parties to successive collective-bargaining agreements since the 1950's, the last such agreement running from January 1969 until January 17, 1972. The parties began negotiations for a renewal agreement in November 1971. Meetings were held and various proposals exchanged , and no agreement was reached when the 1969-1972 contract expired by its terms on January 17, 1972. The Union called a bargaining strike and the employees walked out on February 7, 1972. Although many eniployees have returned to work, the strike still continues . On September 5, 1972, the Board issued a Decision and Order against the Union, finding the Union responsible for blocking ingress to and egress from the plant, threats of physical harm, and other acts of misconduct from the inception of the strike. District 50, Allied and Technical Workers, Local 14055 (Austin Compa- ny), 198 NLRB 1184, (1972). The Union's strike miscon- duct continued, meanwhile, and on February 5, 1973, the Court of Appeals for the Sixth Circuit entered a consent judgment enforcing, in full, the Board's Order against the Union. The Union resumed strike misconduct on or about April 24, 1973, and such misconduct continued almost daily until the court of appeals entered a consent contempt adjudication on May 17, 1973. N.L.RB. v. Local 14055, District 29, United Steelworkers of America, AFL-CIO, et al., 524 F.2d 853 (C.A.D.C., 1976). On April 15, 1973, the Respondent withdrew bargaining recognition from the Union. The original charge in the present matter was filed on April 25, 1973, and served on April 26, 1973. It was accordingly determined at the hearing without objection from any party, that October 26, 1972, was the cutoff date under Section 10(b) of the Act for finding unfair labor practices in this proceeding. The complaint alleges violations of Section 8(a)(1), (3), and (5) of the Act. Without setting forth all of these allegations, it is sufficient to indicate for preliminary purposes that the crux of the General Counsel 's action is r I desire to acknowledge the excellent briefs submitted in this matter. 216 NLRB No. 16 THE DOW CHEMICAL COMPANY that Respondent allegedly failed to bargain in good faith in certain specified respects2 after which it unlawfully withdrew recognition from the Union. The General Counsel contends that the strike was thereby converted into an unfair labor practice strike and that Respondent refused to accord strikers the reinstatement rights of unfair labor practice strikers. Denying that it failed or refused to bargain in good faith and that the strike was prolonged by unfair labor practices, Respondent further claims that it was warranted in withdrawing recognition from the Union, This claim is two-pronged: first, that Respondent had reasonable basis in objective fact for believing that the Union no longer commanded majority support; and, secon4, that in any event the Union lost entitlement to exclusive bargaining status in view of its misconduct, within the doctrine of Laura Modes Company, 144 NLRB 1592 (1963). B. The Negotiations and Strike and Related Events In their first negotiating meeting on November 24, 1971, the parties settled on "ground rules" to be followed in their bargaining sessions. The parties accordingly decided, inter alia, that they would initial and exchange individual contract sections as agreed upon, with the expressed understanding, however, that agreement on each such approved contract section would only be tentative until acceptance by the parties of all terms of an entire contract and, in effect, that "either party (could) nullify a tentative agreement at any time" prior to such final acceptance. In subsequent meetings a number of contract sections were thus tentatively approved, including a standard union-shop provision on January 15, 1972, and a dues-checkoff clause 3 days later. Approximately 120 bargaining sessions were held by the time negotiations were suspended on January 12, 1973. The 1969-72 contract expired on January 17, 1972, and as also indicated above, the Union called a strike commencing on February 7, 1972. The entire bargaining unit of 168 active employees went out on strike, and the Union's aforementioned strike misconduct began the first day of the strike. Respondent sought to continue plant operations during the strike, initially with salaried (nonun- it) personnel. Early in April 1972, Respondent advertised for permanent strike replacements in local newspapers. The Union and strikers responded with "considerable violence" at the plant, and in an effort to control such misconduct, Respondent thereupon agreed with the Union that Respondent would not hire or attempt to hire permanent replacements. On June 9, 1972, Respondent hired salaried employees at its Midland plant on a temporary basis and assigned such Midland personnel to its Bay City plant .3 Respondent informed the Union at the time that such 4dditional personnel from the Midland plant would "not constitute permanent replacement of 2 The bad-faith allegations were limited to the following: (a) Commencing on or about February 7, 1972, unilaterally granting and main{pimng sick leave and supplemental insurance benefits for temporary strike replacements, those benefits being greater than those proposed or offered in contract negotiations with the Union. (b) On or about October 19, 1972, rescinding approval of union-security provisions previously agreed to on January 15, 1972, and thereafter refusing to reconsider said rescission and to bargain concerning alternative union- 83 anybody's job" at Bay City. These temporary replacements from Midland were hired on a salaried basis and therefore received somewhat different and perhaps even higher sick leave and supplemental insurance benefits than the nonsalaried Bay City employees had been paid under the expired contract. Respondent and union negotiators meanwhile continued holding regular negotiating meetings. Altogether, as stated above, approximately 120 bargaining sessions were held between December 24, 1971, and January 12, 1973. It may be appropriate at this point to describe the Union's strike misconduct at the Bay City plant, for such illegal activity was tied in with the future course of both contract and strike settlement negotiations as hereinafter discussed. All such findings of misconduct are based upon stipulated facts and are also covered in substantial part by the aforementioned Board and Court Orders. C. Union Strike Misconduct On various occasions during the period from February 7, 1972, through April 25, 1972, the Union (including its president and vice president) forcibly blocked plant ingress, both vehicular and personnel; threatened personal harm to plant personnel; and placed spikes and nails at plant driveways. During the period from April 25, 1972, until February 5, 1973, although with "lesser frequency," the Union contin- ued to engage in conduct similar or identical to its aforementioned conduct between February 7 and April 25, 1972. Starting on or about April 24, 1973, and continuing until or about May 17, 1973, the Union and named officers and representatives including union negotiators, violated the aforementioned court enforcement decree in that they "committed acts of violence upon and threatened with violence employees and supervisors working for Dow Chemical Co., Austin Company and other employers doing business with Dow Chemical Co. or Austin Company; inflicted considerable property damage on the property of persons employed by or doing business with Dow or Austin or others; have [`repeatedly . . . and almost daily") blocked ingress to and egress from the Dow Chemical Co.'s Bay City, Michigan, plant for employees and supervisors of various employers by massing in large numbers in front of and about the plant's various gates and by placing disabled vehicles across the paths thereof; have inflicted considera- ble property damage on vehicles owned or operated by persons seeking to work for employers in or having business with employers in the Dow Co. plant complex; have blocked and attempted to block ingress to and egress from the Dow Co. plant by placing spikes and nails in roadways; have formed caravans to follow and have followed employees as they leave the plant; and have at times, in like or related manner, restrained and coerced security proposals. (c) Demanding and insisting to impasse on nonmandatory subjects, namely, that the Union reimburse Respondent for alleged damages inflicted by the Union on Respondent during the strike. 3 Respondent has a plant in Midland about 20 miles from the Bay City plant involved herein. The Midland plant personnel is not within the Union's bargaining unit in the present case. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act." D. Negotiations, Continued Some eight strikers crossed the picket line and returned to work in September or early October 1972. At the next negotiating session following their return, according to the credible testimony of Respondent Industrial Relations Manager Frank Neering, Union District Director Charles Younglove objected to the Company allowing strikers to return. Younglove repeated this objection at the following meeting on October 19, and according to Neering's credible testimony, Union Staff Representative George Watts informed Respondent's negotiating committee at that meeting that union members who crossed the picket line to return to work while the strike was in progress "would be subject to disciplinary action, fines, and could lose their wages that they were earning." Neering there- upon responded that Respondent was "not going to allow any of the people that had returned to work to be hurt in any way, shape or manner; that I [Neering] felt an employee ought to have a right to decide for himself whether or not he wished to return to work; and if that was their [the Union's] position, we were not going to agree to a union-shop clause." 4 The parties continued their bargaining sessions, and at the Union's suggestion the Respondent submitted, in writing, a complete contract package on November 29, 1972. This package did not contain a union-shop provision but did include a checkoff clause. Ultimately the parties reached agreement on all contract issues except the union- shop clause requested by the Union. The parties discussed the union-shop issue at the subsequent bargaining sessions, and for a while the Union proposed modifications of its union-shop demand. The Union was unable to persuade Respondent to accept any of such proposals, and the Union ultimately stated it would not agree to a contract without a union-shop clause. While Arnot of the union committee testified that Respondent's negotiators were thus unwilling to accede to union demands in this connection, the record does not preponderantly establish that Respondent was unwilling to discuss or that it refused to discuss the matter. E. Strike Settlement Issues As the parties progressed in their resolution of contract issues in November 1972, they also addressed two separate matters arising out of illegal union misconduct during the strike. Respondent had incurred property loss as a result of union misconduct, as set forth above, and Respondent had 4 As stated above, the complaint alleged that Respondent rescinded its earlier approval of the union-secunty clause on October 19, 1972. Ray Arnot is president of Local 14055 and was chairman of the Union's negotiating committee Union District Director Charles Younglove became active in negotiations early in October 1972, and Union Staff Representa- tive George Watts also participated in the negotiations . According to Arnot, Neenng informed the Union at the October 19 session that the Company would have to leave the "checkoff" clause on the bargaining table in order to protect former strikers who were returning to work, and the Union's witnesses also testified that Neering further mentioned in this connection rumors of threatened disciplinary action by the Union against such returning stokers . Younglove testified that Respondent did not raise the discharged seven strikers for acts of strike violence. The question of reinstating these seven dischargees arose at a bargaining session on November 8, 1972, and the matter was repeatedly discussed at subsequent meetings as the Union continued to urge such reinstatement. The parties explored various alternatives proposed by the Union, and in fact devoted an entire meeting in December to a consideration of the reinstatement matter. The other matter involved the Respondent's request for reimbursement for property damage resulting from strike violence. Plant Manager K.E. Coulter thus submitted an itemized list of damages at the December 1, 1972 bargaining session. The Union rejected the damage claim, and the matter was discussed at subsequent meetings. I see no reason to burden this Decision with details of various discussions on this matter, for at the final bargaining session on January 12, 1973, Union Negotiator Younglove admittedly told Respondent that the $8,000 damage claim "would not be a hangup" if the other issues were resolved. Credible testimony further establishes, moreover, that the damage claim was understood by the parties as part of a separate "back-to-work" agreement and not within the terms of a collective-bargaining contract or a condition of the acceptance of such collective-bargaining contract by the Company. The last bargaining session between the parties' respec- tive committees was on January 12, 1973.5 One or two informal meetings took place afterward, but without resolving the single remaining contract issue as to union- shop or the mentioned back-to-work issues. The Union requested no further meetings, and the Respondent subsequently withdrew bargaining recognition from the Union. Before taking up the circumstances of such withdrawal, it may be helpful to resolve those portions of the complaint wherein the General Counsel alleges that the strike was converted to an unfair labor practices strike by reason of a purported refusal and failure by Respondent to bargain in good faith. F. Bad-Faith Allegations Union-Shop: Each of the last five collective-bargaining agreements between Respondent and the Union (or its predecessors), covering the period of 1959-72, contained union-shop provisions. And, early on in the present negotiations, the parties had tentatively agreed to include an identical union-shop clause in a new agreement. The General Counsel contends that Respondent rescinded such union-shop agreement on November 22, 1972, despite purported assurances from the Union that the Union would not take disciplinary measures against returning union-shop issue until November 23, while Arnot placed the time on November 29 and Watts testified that he could not recall whether the issue was raised on October 19. Arnot further testified that a tentatively settled issue could become unsettled under the "ground rules" when there was an "intertwining" with another unsettled issue . When asked whether the union- shop issue was related to the checkoff matter which he testified as having been raised by Respondent on October 19, Arnot testified it was a "matter of opinion" that "could go either way." 5 Approximately 12 full bargaining sessions were held during the 10(b) period covered by the complaint, i e , since October 26, 1972, and between 10 and 20 contract issues were resolved during such period , leaving only the union-shop issue undecided. THE DOW CHEMICAL COMPANY strikers, and the General Counsel further asserts that Respondent bargained in bad faith by an "adamant refusal to modify its [union-shop] position" as to the Union's original or subsequently modified proposals. I have found, contrary to the General Counsel's assertion but in accordance with the allegation of the complaint in this matter, that Respondent did in effect withdraw its tentative agreement on the union-shop clause on October 19, 1972. Such withdrawal is outside the operative period under Section 10(b) of the Act and therefore may not be the basis of an unfair labor practice finding. Whatever the date, however, I am satisfied that the record does not establish bad-faith bargaining in this connection. There is no question here concerning applicable princi- ples: Section 8(d) of the Act defines the duty to bargain as the mutual obligation "to meet at reasonable times and confer in good faith with respect to wages, hours and other terms and conditions of employment, or the negotiation of an agreement." This statutory standard comtemplates "a willingness to enter the discussions with an open mind and purpose to reach an agreement consistent with the respective rights of the parties." N.L.R.B. v. Texas Coca- Cola Bottling Co., 365 F.2d 321, 322-323 (C.A. 5, 1966). While a party may not come to the bargaining table with a closed mind, neither is he bound to yield any position fairly maintained (N.L.R.B. v. United Nuclear Corp., 381 F.2d 972, 979 (C.A. 10, 1967)); "firmness of a bargaining position does not constitute bad faith." Dallas General Drivers, etc., Local Union No. 745 v. N.LR.B., 355 F.2d 842 (C.A.D.C., 1966); and where negotiations are otherwise carried on in good faith, Section 8(a)(5) is not violated "simply because on some of the issues, even though they may be crucial, one or the other of the parties has been unwilling to recede from its position so as to yield to the contentions or demands of the other" (The Dow Chemical Company, 186 NLRB 372, 381-382 (1970)) or because of a refusal to grant a union-shop clause contained in an earlier contract (ibid.) or by a change on matters agreed upon earlier in negotiations . Taylor Chevrolet Corp., 199 NLRB 1064, (1972); Midwestern Instruments, 133 NLRB 1132, 1139 (1961). Ultimately the question of good faith in negotiations involves a finding of motive or state of mind to be inferred from the circumstantial evidence viewed as an integrated whole. N.L.R.B. v. National Shoes, Inc., 208 F.2d 688, 691-692 (C.A. 2, 1953); N.L.R.B. v. Reed & Prince Mfg. Co., 205 F.2d 131, 139-140 (C.A. 1, 1953), cert. denied 346 U.S. 887. The term "good faith" is a concept that can have meaning "only in its application to the particular facts of a particular case" (N.LR.B. v. American National Insurance Co., 343 U.S. 395, 410, (1952)), and "the Board may not either directly or indirectly compel concessions or other- wise sit in judgment upon the substantive terms of collective-bargaining agreements" (343 U.S. at 404); H. K. Porter Co. v. N. L. R. B., 397 U.S. 99, 106 (1970). There is no showing that Respondent sought to under- mine the bargaining status of the Union or that Respon- dent engaged in conduct infringing the statutory rights of individual striking employees. On the other hand, the 85 record does establish and the Board and the court of appeals have adjudicated that during the strike and negotiations the Union violated the statutory rights of employees as well as the right of Respondent to operate the plant free of violence with permanent replacements. I am satisfied that Respondent did consider and discuss the Union's various union-security proposals, and I also find that Respondent did not seize upon the union-shop issue as a ploy to forestall reaching a contract with the Union. It was the Union's own misconduct that created the climate which brought about the Respondent's changed stance on union security. In the context of this entire case and despite purported assurances and proposals from the Union as to returning strikers, I am unable to find that the record preponderantly establishes that Respondent refused to bargain or otherwise acted in bad faith in rejecting the Union's various union-shop demands. Unilateral grant of improved sick leave and insurance benefits: It is recalled that union strike violence forced Respondent to agree with the Union that it would not hire permanent replacements for the strikers and that it thereupon hired temporary employees on a salaried basis at its Midland plant and then assigned such Midland personnel to Bay City. As salaried personnel of Midland, these employees received sick leave and insurance benefits computed on such salaried basis, rather than on the hourly basis of Bay City striking personnel. Until at least April 15, 1973, however, returning strikers received the same benefits established under their expired 1969-72 contract. Even assuming that the mentioned benefits paid these salaried employees of Midland were greater than any such benefits tendered by Respondent in negotiations with the Union, such conduct in this case is hardly violative of the Act or otherwise indicative of bad-faith bargaining as argued by the General Counsel. This is so for several independent reasons. Firstly, even assuming the unilateral payment to be an unfair labor practice or otherwise cognizable as a predicate for a finding of bad-faith bargaining, such payments were initiated and first imple- mented before October 26, 1972; the benefits payments themselves were "innocent" on their face and only became unlawful (if at all) by consideration of the situation when they were originally granted (Paper Products and Miscella- neous Chauffeurs, etc. (Combined Container Industries), 209 NLRB 883 (1974)); such original grant being outside the period allowed under Section 10(b) of the Act, the continuation may hardly be deemed independent juridical conduct and it is therefore time barred under Section 10(b). Bonwit Teller, Inc., 96 NLRB 608, 610 (1951). Secondly, at least until withdrawal of recognition from the Union, the payments were not made to permanent replacements6 for striking employees or otherwise to employees within the bargaining unit. Thirdly, the record does not show that the subject benefits were a matter of serious, if any, conflict in negotiations between the parties or that the payments to the replacements seriously impeded the course of negotiations or, in any event, interfered with the resolution or execution of a collective- bargaining agreement. 6 This second ground would be inapplicable if, as discussed hereinafter, the replacements be deemed permanent rather than temporary. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Strike damage claim: As indicated above, the parties concurrently discussed a return-to-work agreement as they appeared to be approaching a resolution on the terms of a collective-bargaining contract. The return-to-work issues involved the Union's demand that the seven dischargees be reinstated and the Respondent's demand that the Union make Respondent whole to the extent of $8,000 in itemized damages arising out of strike misconduct. The return-to- work issues were discussed during contract negotiating sessions, but, as also indicated above, the parties clearly understood that return-to-work issues were matters apart from contract negotiations and the parties thus contem- plated two separate agreements. According to the credible testimony of Neering, and contrary to Younglove's testimony, the company representatives at no time stated or otherwise indicated that payment of the damage claim was a condition of Respondent's willingness to enter into a collective-bargaining agreement. In any event, as stated above, the Union advised Respondent that the damage claim would not be a "hangup" if other issues were resolved. It is also recalled that on November 29, 1972, Respon- dent submitted to the Union, at the latter's request, a complete contract package. There was nothing in this package concerning the mentioned damage claim or the reinstatement of dischargees and the Union had only to accept the package in order to bind Respondent to the terms of a new collective-bargaining agreement. However, the Union did not do so, principally, at least, because of its insistence on the union-shop clause. I accordingly conclude that Respondent did not insist, much less insist to impasse, that the Union satisfy Respondent's damage claim as a condition to Respon- dent's willingness to accept or execute a collective-bargain- ing contract.? I further conclude upon consideration of the specified items of alleged bad faith, separately and in totality, that Respondent did not violate the Act in such respects and that the record does not establish that Respondent has otherwise bargained in bad faith. The strike, therefore, was not converted to and did not become an unfair labor practices strike. G. Withdrawal of Recognition On April 13, 1973, more than 14 months after the inception of the strike, Respondent received a petition from employees in the Bay City plant expressing their desire to terminate their affiliation with the Union. The General Counsel asserts no claim of invalidity respecting this petition. As of April 13, 1973, Respondent had a full complement of employees working in the plant consisting of 61 returned former strikers and 82 "temporary" replacements; 42 of the returned strikers (or 69 percent of that group) signed the petition, and 58 replacements (or 71 percent of that group) also signed the petition. Altogether, therefore, the petition bore the names of approximately 70 percent of the employees actually working in the Bay City plant at the time. Various other individuals of the original sinking group had meanwhile severed their employment r Had I found otherwise, I might have to consider whether the Union insisted on reinstatement of the dischargees as a condition to its execution of a collective-bargaining agreement and, if so, whether such insistence with Respondent;. and on April 15, 1973, there were approximately 64 employees still on strike. Upon receipt of the mentioned petition on April 13, 1973, and after considering various alternatives, Respon- dent notified the Union by letter dated April 15, 1973, that, in accordance with the wishes of majority of the employees at Bay City, Respondent was withdrawing or had with- drawn recognition of the Union as bargaining representa- tive for Bay City employees. At the same time the Company decided to offer immediate permanent employ- ment to the temporary salaried replacements and to give all remaining strikers 10 days within which to return to their jobs, after which they would be deemed permanently replaced. Respondent further decided that, if necessary, the Company would create extra positions in order to make room for all returning strikers and replacements who wanted permanent employment. All affected employees were accordingly notified on April 16, 1973. And on that same date, Respondent converted all temporary replace- ments to permanent status, and restructured the Bay City unit from an hourly to a salaried basis. The Union's response to its loss of bargaining recogni- tion was, as described above, a widespread campaign of violent harassment against employees, supervisors, custom- ers, and suppliers of Respondent. This campaign as the parties have stipulated was "participated in, instigated, encouraged or condoned" by top officials of the Local Union and staff representatives of the United Steel Workers and was finally brought under control by a contempt adjudication against the Union and six of its officers. Under established law, "a certified union, upon the expiration of the first year following its certification enjoys a rebuttable presumption that its majority representative status continues. An employer may lawfully refuse to bargain with a union if it affirmatively establishes that, at the time of the refusal, the Union no longer commanded a majority or that the employer's refusal was predicated on a reasonably based doubt as to the continuing majority. With respect to the former there must be affirmative proof that the majority of unit employees no longer wanted the Union to represent them. With regard to the latter, the employer need not prove that the Union lost its majority but need only establish that it had a reasonable basis for doubting the Union's majority at the time it refused to bargain." Orion Corporation, 210 NLRB 633 (1974); J. H. Rutter-Rex Manufacturing Company, Inc., 209 NLRB 6 (1974). The General Counsel's principal contention respecting withdrawal of recognition from the Union is that Respon- dent raised such majority issue "in a context of unfair labor practices." The General Counsel further contends that Respondent, in any event, did not have a reasonably grounded, good-faith doubt that the Union had lost its majority status, and the General Counsel asserts in this connection that temporary replacements are ineligible for inclusion in respect to majority status determination and constituted bad-faith bargaining on its part Cf Elgin Joliet & Eastern Railway Co. v. Burley, et al, 325 U.S 711, 722-724 (1945), 327 U S 661 (1946), Hughes Tool Co v N.LR.B., 147 F 2d 69, 72, 73 (C A 5 1945) THE DOW CHEMICAL COMPANY that economic strikers should be included for such purpose unless permanently replaced. Respondent claims that the April 13 petition provided reliable, objective evidence for believing that the Union no longer represented a majority of the employees working in the plant, and that Section 9(cX3) of the Act did not require Respondent to count employees still on strike as more than 12 months had elapsed since the strike began. Respondent further claims, despite the original hiring of strike replacements on a temporary basis , that such replacements be treated as permanent for majority deter- mination purposes in view of the circumstances of illegal union coercion attending their hire. Were it found here that Respondent had bargained in bad faith and that the strike was converted to an unfair labor practice strike, the General Counsel's primary contention respecting withdrawal of recognition would be established. I have concluded otherwise , however, and have found that the strike was economic in its inception and remained economic at all material times. Section 9(c)(3) of the Act provides in relevant part that "Employees engaged in an economic strike who are not entitled to reinstatement shall be eligible to vote under such regulations as the Board shall find are consistent with the purposes and provisions of this Act in any election conducted within 12 months after the commencement of the strike." In C. H. Guenther & Son, Inc., d/b/a Pioneer Flour Mills, 174 NLRB 1202 (1964), the Board held that Section 9(cX3) was applicable to proceedings under Section 8(a)(5) of the Act and that replaced economic strikers who had sought reinstatement were eligible to be counted with their replacements for purposes of computing the involved union's representative status. Both the strike and the requested reinstatement were within a year of the strike's commencement in that case. Wahl Clipper Corporation, 195 NLRB 634 (1972), was a representation case involving the voting eligibility of certain replaced strikers . The strike was settled some 8 months after its commencement , and the strike settlement provided that the strikers in question be placed on a preferential hiring list. These former strikers on the preferential list had not been recalled by the election date, which was more than 1 year from the commencement of the strike. Upon consideration of the legislative history of Section 9(c)(3), the Board concluded that these replaced strikers were not eligible to vote. Referring to certain statements of the Board in the Wahl Clipper decision, the Respondent urges that the Board 's decision be read as holding that Section 9(cX3) limits the voting eligibility of economic strikers to the statutory 12-month period whether or not the strikers are replaced. I find it unnecessary to decide the voting eligibility of unreplaced strikers in this case, for I am satisfied in the circumstances herein that the replacements should be regarded ab initio as permanent replacement for the strikers, and, in any event, that the replacements achieved permanent status contemporaneously with the withdrawal of recognition. It is hornbook law that parties should not be permitted to enjoy the fruits of unlawful conduct, and this record clearly establishes that Respondent was coerced by 87 unlawful union misconduct into originally hiring replace- ments on a "temporary" rather than a permanent basis. To withhold voting eligibility from the replacements and accord such eligibility to strikers would in these circum- stances, as Respondent contends, "simply reward the Union for resorting to illegal coercion." I accordingly conclude that as of April 13, 1973, the eligible voting complement consisted of 61 returned strikers and 82 replacements and that a substantial majority of these employees afforded Respondent reliable objective basis to doubt the Union's majority status. I further conclude, considering the circumstances of this case, that Respondent had substantial basis for doubting the Union's majority even assuming, contrary to my findings herein, the eligibility of the 64 remaining strikers. It follows, therefore, as I also conclude, that Respondent did not engage in unlawful unilateral action on and after April 16, 1973, as further alleged in the complaint. Respondent further contends that, even if it be held to have violated Section 8(a)(5) of the Act, a bargaining order would nevertheless be inappropriate against the back- ground of "extensive and flagrant" picket line misconduct revealed here. Respondent relies in this connection on Laura Modes Co., 144 NLRB 1592 (1963), and Allou Distributors, Inc., 201 NLRB 47 (1973), in which latter case the Board withheld a bargaining order from a long-time incumbent union upon sustaining a contention that "the Union's misconduct was of such a grave and serious nature as to disqualify it from such an order." Withholding a remedial bargaining order in an otherwise appropriate case is an "extraordinary sanction " (Donovan d/b/a New Fairview Hall Convalescent Home, 206 NLRB 688 (1973)). It should be invoked most sparingly, and only in most serious situations. Even in cases of flagrant misconduct, the Board is reluctant to impose such sanction where the subject activity is provoked by flagrant unlawful actions of the involved employer. Quintree Distributors, Inc., 198 NLRB 390 (1972). Without further burdening this decision, for I have already concluded that Respondent did not violate Section 8(aX5) and that a bargaining order is therefore without warrant here, I nevertheless agree with Respondent that the reasons for denying a bargaining order in Laura Modes and Allou Distributors are at least equally present here. H. Further Allegations The complaint also alleges that Respondent threatened striking employees with permanent replacement despite the fact that said employees were engaged in an unfair labor practices strike and that Respondent failed and refused to reinstate unfair labor practice strikers upon purportedly unconditional application for reinstatement. An employer in an economic strike has a right to hire permanent replacements and may so advise striking employees beforehand. (The Dow Chemical Company, 186 NLRB 372, 379, 384). The General Counsel acknowledged at the hearing that a finding of an unfair labor practice strike was the premise of these allegations and having found that this was not such a strike, I see no need to discuss these items further. I also deem it unnecessary, in view of the conclusions heretofore reached on the gravamen of this 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint, to discuss several other matters alleged in the complaint, which matters are insignificant in context and which lack evidentiary support to a substantial degree. CONCLUSIONS OF LAW 1. Respondent is an employer engaged in commerce within Section 2(6) and (7) of the Act. 2. The Union is a labor organization within Section 2(5) of the Act. s In the event no exceptions are filed as provided by Sec. 104.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and recommended Order herein shall, as provided in Sec. 3. Respondent has not violated the Act in the respects alleged in the complaint. Upon the foregoing findings, conclusions, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDERS It is hereby ordered that the consolidated complaint herein be dismissed. 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.