Matlock Truck Body & Trailer Corp.

346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Matlock Truck Body & Trailer Corp., and its Agent Roy L. Matlock audDistrict Lodge 155 of the Inter= national Association of Machinists and Aerospace Workers, AFL-CIO. Case 26-CA-5204 April 10, 1975 DECISION AND ORDER BY MEMBERS FANNING, KENNEDY, AND PENELLO On December 19, 1974, Administrative Law Judge Herbert Silberman issued the attached Decision in this proceeding. Thereafter, the General Counsel filed ex- ceptions and a supporting brief, and Respondents filed a brief in support of the Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his -recommended Order. ORDER- Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board adopts as its Order,the recommended Order of the Administrative Law Judge and hereby orders that Respondents Matlock Truck Body & Trailer Corp., and its Agent Roy L. Matlock, Nashville, Tennessee, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. DECISION STATEMENT OF THE CASE HERBERT SILBERMAN, Administrative Law Judge: Upon a charge filed by the above-named Union on July 18, 1974, a complaint, dated July 26, 1974, was issued alleging that the Respondents above named have engaged in unfair labor prac- tices in violation of Section 8(a)(1), (3), and (5) of the Na- tional Labor Relations Act, as amended.' The complaint, as amended during the hearing, in substance alleges that Re- spondents unlawfully have refused to bargain collectively with the certified representative of their employees by, among other things, making unilateral changes in wages and other conditions of employment, that a strike which began on July 8 was caused and prolonged by Respondents' unfair labor practices, that on July 8 Respondents unlawfully discharged I The complaint alleges that both named Respondents have engaged in all the alleged unlawful acts Respondents do not question the attributed re- sponsibility of Roy L. Matlock for such conduct, if proved, even absent direct participation on his part. the striking employees, and that by the foregoing and other conduct set forth in the complaint, Respondents have inter- fered with, restrained, and coerced employees in the exercise of the rights guaranteed in Section 7. Respondents filed an answer generally denying that they have engaged in the al- leged unfair labor practices. A hearing in this proceeding was held in Nashville, Tennessee, on September 10, 11, 12, and 30 and October 1 and 2, 1974.2 Pursuant to leave given the parties at the hearing briefs were filed on behalf of General Counsel and Respondents. Upon the entire record in this case, and from my observa- tion of the witnesses and their demeanor, I make the follow- ing: FINDINGS OF FACT I THE BUSINESS OF THE COMPANY Matlock Truck Body & Trailer Corp., herein called the Company, a corporation which is doing business in Nashville, Tennessee, is engaged in the manufacture, sale, and service of truck bodies and truck trailers. During the 12 months preced- ing the issuance of the complaint, the Company, in the course and conduct of its operations, purchased products valued in excess of $50,000 which were shipped to its Nashville location through channels of interstate commerce directly from points located outside- the State of Tennessee and, during this same period, the Company sold and shipped from its Nashville plant products valued in excess of $50,000 through channels of interstate commerce directly to points located outside the State of Tennessee. The complaint alleges, the Respondents admit, and I find, that the Company is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. Roy L. Matlock is president of the Company, the owner of at least 75 percent of its outstanding shares of capital stock, and the principal operating official of the Company. It THE LABOR ORGANIZATION INVOLVED District Lodge 155 of the International Association of Ma- chinists and Aerospace Workers, AFL-CIO, herein called the Union, is a labor organization within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. Background Following an election conducted by the National Labor Relations Board on July 13, 1972, the Union, on August 25, 1972, was certified as the exclusive collective-bargaining rep- resentative of the employees in the following unit: All production and maintenance employees, including working foremen, parts clerks, material handling em- ployees, inspectors, truck drivers and janitors employed by the Company at its 1070 Visco Drive, Nashville, 2 No objections having been filed thereto, General Counsel's motion, dated November 18, 1974, to correct the transcript of record in this case is granted. 217 NLRB No. 60 MATLOCK TRUCK BODY & TRAILER CORP. 347 Tennessee, location excluding all office clerical em- ployees, salesmen, technical and professional employees, guards and supervisors as defined in the Act. Numerous times since October 31, 1972, the Union has requested the Company to bargain collectively with it as the exclusive representative of the employees in the above- described unit, but the Company, which has maintained that the certification issued on August 25, 1972, is invalid, consist- ently has refused to recognize the Union as the representative of the employees in the certified unit and to engage in collec- tive bargaining with the Union. Because of the Company's refusal to recognize and to bargain collectively with the Union a proceeding alleging violations of Section 8(a)(5) and (1) of the Act was instituted. A decision and order was issued by the Board in the matter, reported at 203 NLRB 110 (1973), wherein the Board found that the Company is engag- ing in unfair labor practices by its refusal since November 27, 1972, to bargain collectively with the Union as the exclusive representative of the employees in the above-described unit. Among other things, the Company was ordered, upon re- quest, to bargain collectively with the Union. Subsequent to the issuance of the Board's Decision and Order the Union directed additional requests to the Company to bargain col- lectively with it which requests have been refused by the Company. The Board's Order was subsequently enforced by a decision of the United States Court of Appeals for the Sixth Circuit, issued on April 26, 1974, which is reported at 495 F.2d 671. The Company filed a petition for writ or certiorari, which was pending at the time of the hearing in this proceed- ing, but was denied on October 29, 1974. See 419 U.S. 764. B. The Unilateral Actions Paragraph 12(b) of the complaint alleges that in May 1974 Respondents without notice to, or bargaining with, the Union changed existing wage rates by granting their production employees a 10-cent-per-hour wage increase and by granting their maintenance employees a 20-cent-per-hour wage in- crease. The answer admits the substance of this allegation. The answer avers the evidence establishes that the Company on April 1, 1974, granted its production employees a 10-cent- per-hour wage increase and on or about June 17, 1974, granted its maintenance employees a wage increase of 20 cents per hour. The Company's only defense to this allegation is that the certification is invalid. As the Company has ex- hausted all appeals from the decision in 203 NLRB 110, which reaffirms the certification, I find that the Union is the duly designated representative of the employees in the above- described unit. Accordingly, as alleged in the complaint, I find that by reason of the wage increases given to their pro- duction and maintenance employees in April and June 1974 Respondents have violated Section 8(a)(5) and (1) of the Act. The complaint further alleges that on July 8, 1974, Re- spondents, without notice to, or bargaining with, the Union, changed production quotas for the side department em- ployees from three truck sides per workshift to five truck sides per workshift and for the front-end department em- ployees from three front ends per workshift to five front ends per workshift. In respect thereto, it is undisputed that at a regular safety meeting of the employees in the side and front- end departments, which was held on Monday, July 8, 1974, about 7:30 a.m., Foreman Gene Roberts told the approxi- mately 20 employees who were assembled that George Par- rish (vice president in charge of manufacturing) had directed that the department produce five trailer sides per shift. Rob- erts stated that if the men worked together they could easily do five sides per shift but warned the employees that any who did not wish to cooperate should look for other jobs.' After the meeting Roberts informed the two employees who worked in the front-end department on the day shift, Bobby Parker and Conrad Simmons, that he wanted them to in- crease their production to five front ends per shift. The record is barren of any evidence that the employees in the side and front-end departments were subject to any quotas. The employees in these departments are hourly paid; there is no evidence that at any time they were advised that each individual was expected to produce a specific minimum amount of work per shift. Witnesses called by General Coun- sel testified that prior to July 8 the day shift produced be- tween 3 and 4-1/2 sides per shift and from time to time the department foremen urged them towards a greater produc- tion target or goal. Thus, Danny Swindle testified that prior to January 1974 the side department was producting three to four sides per shift depending upon the type and style of trailer which was being built and Jim Robertson, Roberts' predecessor who was then foreman, at the regular safety meetings repeatedly urged the employees to get out more work telling them that "we need to get four sides." What occurred in the morning on July 8 was essentially no different than what had occurred regularly prior thereto, namely, that the department foreman exhorted the employees to do more work and set a specific target or goal for them.' That five sides per shift was intended only as a target is reflected by the testimony of Danny Swindle, who was a leadman in the side department. Following the July 8 safety meeting Swindle told Roberts that there was no way that the department could build 5 sides per shift to which Roberts replied, "You have got to try." Contrary to General Counsel, I find that the Company maintained no production quota and therefore on July 8 did not change any production quota. Accordingly, I find no unfair labor practice by reason of the transactions at the July 8 safety meeting. Many of the first-shift employees did not return to work following the lunch break on July 8, which signaled the begin- ning of a strike that was still unresolved and in progress at the time of this proceeding. The complaint alleges that this strike was caused by and was prolonged by Respondents' unfair labor practices. 7 Roy Thomas Burgess testified that Roberts said, "If you can't do the work or don't want to do the work, find yourself another job." But if we all worked together, we could get five sides. And I said I didn't think we could, and he said, 'We will go to work and see."' 4 George Parrish and Roy L. Matlock testified that the Company wanted production in the side department increased because in 1974 certain trailers had been redesigned so that the manufacture of the sides had become simpler and quicker and, more immediately, in early July the side depart- ment was a bottleneck in the Company's effort to meet its production needs. Furthermore, according to them, with more employees the first shift was producing no more than the second shift. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Status of The Strikers About noon on July 8 when approximately 54 employees failed to return to work from their lunch break, Company President Roy Matlock held a management meeting. After the Company's attorney was consulted by telephone, and pursuant to advice received from him, General Plant Superin- tendent Gene Stone went outside to talk with the striking employees. Among other things, after ascertaining that the precipitating reason for the walkout was Foreman Roberts' demand that the employees in the side department increase their production to five sides per shift, Stone told the men that there was a misunderstanding and requested them to return to work, but warned that any who did not follow him into the plant would be considered as having voluntarily quit their employment.' Of relevance to the foregoing and also to the discussion below as to whether Respondents' refusal to recognize and to bargain with the Union caused or prolonged the strike, Melvin Jarratt testified that in urging the em- ployees to return to work Stone said, "`We have problems and misunderstanding, but we always try to work them out.' and . . . someone in the group spoke up and said, `We have been trying to work them out for two years and have not been able to get them worked out yet."' Similarly, relating to the theme that the employees were disgruntled by Respondents' refusal to treat with their certified representative, Roy Thomas Bur- gess testified that Stone asked whether the men were on strike and "Joe Gantt said, the union Representatives would be there and he said he guessed [Stone could] call it that if he wanted to." About 3:30 p.m. on the same day, July 8, Company Presi- dent Matlock distributed a bulletin to the striking employees gathered outside the plant. The bulletin explained that the Company had spent many thousands of dollars redesigning its trailers and truck bodies to make them easier and faster to build and because of this change the Company had asked that production be increased. It informed the employees that the Company again was requesting them to return to work and warned,'"[I]f you have walked off your job and do not report for work at the start of your work shift on July 9, 1974, you will be considered as voluntarily quitting your job." The next day, July 9, the Company over the signature of its presi- dent, Roy L. Matlock, distributed to the employees in the plant, posted on the bulletin boards in the plant, and mailed to the employees who had not reported to work a letter which, among other things, stated: - We have considered the people that walked off their jobs to have voluntarily quit their jobs . . . . 5 Paul Thomas Brown testified that in explaining to Stone why the men were on strike someone said that it was because of the change in working conditions and "that they increased the sides from three to five sides a day and there was no way we could get it." Similarly, Larry Charles Summey testified that "one person said [to Stone] that we are out because they decided to increase the production from three sides to five sides a day, so we come out on strike." This evidence perhaps explains the basis for the allegation in par. 12(c) of the complaint that the Company increased its production quota from three sides per workshift to five sides per workshift. However, there is no evidence that the Company, whether before or after July 8, had imposed a production quota upon the employees in the side and front-end departments and the evidence is that prior to July 8 production in the side department generally exceeded three sides per shift. Our Company believes that a man should be free to work and should be able to go to and from work without being harassed in any manner. Our Company believes if a man does not want to work he should also be free to withhold his work or services and he should not be harassed for doing so. Our Company believes in a choice of freedom for both groups. Some of our people have tried to come to work- and have been turned away by some of these people who do not believe in freedom. We also want to ask the people that did not walk off their job that have not already returned to return to work no later than Monday,-July 15, 1974. If you fail'to report to work at this time we-will consider that you have voluntarily quit your job. - On July 12, 1974, the Company mailed to the employees who,had left work the following letter: We want to inform the people that worked for Mat- lock Truck Body & Trailer Corporation that your pay checks were mailed to you on July 11, 1974. We want to tell you people that did not walk off of your job, for the third time, to come on in and report at the start of your work shift on July 15, 1974. We also want to inform the people that did not walk off your job that had not reported for work Thursday; July 11, 1974, we also mailed your check yesterday after- noon. Another letter was mailed to the absent employees on July 16. It is addressed to "All Matlock Employees that are not presently reporting for work" and advised:, You have received or about to receive the last pay- check which we owe you for employment with our Com- pany. Although we recognize the right of employees' to engage in activities related to their employment relation- ship, such as the current dispute regarding the reasona- bleness of production standards; we also have the right to continue production. Our plans for the continuation of production, and your continued absence, means a replacement will be hired to perform your work assignment. If you do not report back to work for your normal, shift on Friday, July 19, 1974, we will hire a replacement for you. You may work or not work as you choose, however, we will continue production with a replacement for you if you do not appear for work on July 19th. On July 23 the Company sent another letter to its absent employees, which insofar as is relevant, states Since the strike began, the Company has continued the payment of insurance premiums for your life and health insurance, hoping the strike would not be extended and believing that the coverage should-be retained for you. As the strike continues and permanent replacements are hired, it does not appear that we can continue this indefi- nitely. Accordingly and in order that you might make your own arrangements, you are hereby advised that the MATLOCK TRUCK BODY & TRAILER CORP. 349 Company has discontinued paying your insurance premiums as of July 20, 1974. After the charge in this proceeding was filed on July 18, 1974, the Company on July 25 mailed the following letter to its absent employees: You are directed to ignore our previous notices to you of July 8, and July 9, 1974, that your absence from work would be considered as voluntary quitting you job, and also our letter of July 23, 1974 regarding insurance. Again, for the fourth time you are requested to return to your jobs. Those of you that have been guilty of violence or other-unlawful conduct shall be discharged. Those of you who don't return to your jobs immediately or no later than July 30, 1974 shall be replaced and you shall be so notified. All strikers who sought to return to work were reinstated. Also, various strikers received letters informing them that their jobs had been filled with replacements. Further, on July 31 the striking employees were advised by letter that the Company was no longer paying the premiums on their group life, medical, and other insurance and that they may exercise their conversion rights by dealing directly with the insurance carrier. General Counsel contends that the striking employees were effectively discharged on July 8, 1974, and that such dis- charges constitute unlawful discrimination in violation of Section 8(a)(3). Respondents argue to the contrary. In my view this case is factually similar to Kerrigan Iron Works, Inc., 108 NLRB 933 (1954), affd. 219 F.2d 874 (C.A. 6, 1955), cert. denied 350 U.S. 835 (1955).6 On July 8 the striking employees were informed that if they did not return to work the next day they would be considered as having voluntarily quit their employment and on July 9 the return day was extended to July 15. These communications did not purport to discharge the employees at once but rather to take such action at a future date. Thus, rather than constituting present effective discharges they threatened future action. To discharge employees for engaging in statutorily protected strike action is a violation, of the Act and the threats to take such action contained in the communications both oral and written of July 8 and July 9 constitute infringements upon the employees' right to engage in self-organizational activities and thus violate Section 8(a)(1) of the Act. However, subse- quent to this action the Company addressed three additional invitations to the strikers to return to work. They were mailed on July 12, 16, and 25. These communications do not refer to voluntary quittings or to discharges. On the other hand, the July 16 letter reflects a recognition of the employees' right "to engage in activities related to their employment relation- ship, such as the current dispute regarding the reasonableness of production standards." And the July 25 letter not only invites the employees to return to work but specifically di- rects them to ignore the Company's previous notices of July 8 and July 9 that their absence from work would be consid- 6 See also Crookston Times Printing Company, 125 NLRB 304, 317-318 (1959), Maxville Stone Company, 166 NLRB 888, 892 (1967); Hanley Dawson Chevrolet, Inc., 168 NLRB 944 (1967), N.L R.B. v. Euro- pean Cars Ypsilanti, Inc., 324 F 2d 606 (C.A. 6, 1963), reversing 136 NLRB 1595 (1962). ered as a voluntary quitting of their jobs. The Company's communication of July 16 and particularly of July 25 effec- tively informed the striking employees that the threats of discharge set forth in the earlier communications of July 8 and 9 would not be effectuated and had been withdrawn. The term "discharge" is amorphous. It has no one mean- ing. Its application in other contexts or in other statutes will not help define the term for use here. In my view, for the purposes of this proceeding, the term "discharge" means that "any offer to return to work [by the striking employees], however phrased, [would be] futile for purposes of achieving the full reinstatement to their former status to which they, as unfair labor practice strikers, were entitled."' As so defined the striking employees were not discharged. Following the communications of July 8 and 9, the Company in its letters of July 12, 16, and 25 extended three additional invitations to the striking employees to return to work. Further, the July 16 letter expresses Respondents' recognition of the em- ployees' right to engage in the current dispute and the July 25 letter repudiates the notices of July 8 and 9 that their continued absence would be considered as a voluntary quit- ting of their jobs. Finally, all striking employees who applied for reinstatement were reinstated. Thus, contrary to General Counsel, I find that Respondents have not discharged the striking employees and I will therefore dismiss that allegation of the complaint! Whether or not the striking employees were unlawfully discharged is of minimal significance in this case. Striking employees who are discharged during a strike are not entitled to any backpay until they signify their desire to return to work.', As none of the striking employees have manifested any interest in returning to their positions no backpay has accrued to them. Furthermore, as I find below that the strike is an unfair labor practice strike their rights to reinstatement are the same whether or not they were unlawfully discharged on July 8. D. Interference, Restraint, and Coercion 1. Threats to discharge employees who do not abandon strike I have alluded above to the conduct of Gene Stone and Roy L. Matlock and have found that their threats constitute viola- tions of Section 8(a)(1). In addition, in their letter of July 25 Respondents informed the strikers that those who do not 7 Comfort, Inc., 152 NLRB 1074, 1079 (1965), enfd in part and denied in part 365 F 2d 867,(C.A. 8, 1966). The mere declaration that-an employee has been discharged alone does not effect a termination of employment. There must be an intention on the part of the employer to abrogate the employment relationship, there must be some communication of that intent to the employee, and there must be some affirmative action taken by the employer reflecting the severance of the employment relationship. Public Ledger, Inc., 63 F.Supp. 1008, 1015 (1945). 8 Respondents' letters of July 16 and 25 did not cure the violation of Sec. 8(a)(1) which arose from their July 8 and 9 conduct See discussion in Kerrigan Iron Works, Inc, supra. 9 Sea-Way Distributing Company, Inc., 143 NLRB 460 (1963); Hilton Mobile Homes, 155 NLRB 873, 875 (1965); Joseph H Bliss, d/b/a Artcraft Mantel and Fireplace Co., 174 NLRB 737, 744 (1969); Roosevelt Roofing and Sheet Metal Works, Inc.,'204 NLRB 671 (1973), Royal Typewriter Co., A Division ofLitton Business Systems, Inc., 209 NLRB 1006 (1974); Valley Oil Co, Inc., 210 NLRB 370 (1974); International Van Lines, 1,77 NLRB 353 (1969), affd. 409 U.S 48 (1972). 350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return to work by July 30 "shall, be replaced and shall be so notified." There is evidence in the record that some em- ployees received letters dated July 31 which state: "Be in- formed that your job with our Company has been filled with a replacement as of July 31, 1974." If the strike were an economic strike the Company lawfully could refuse to rein- state any striker whose job was actually filed by a replace- ment. However, as I find below that the strike was caused and was prolonged by Respondents' unfair labor practices, the striking employees , upon application, are entitled to rein- statement whether or not replacements have been hired for them. Accordingly, Respondents' letter of July 25, as ampli- fied by their letters of July 31, constitutes a further violation of Section 8(a)(1). United States Tube & ,Foundry Co., Inc., 188 NLRB 331 (1971); KMg Radio Corporation, Inc., 172 NLRB 1051, 1075 (1968), enfd. in part 416 F.2d 569 (C.A. 10, 1969), cert. denied 397 U.S. 1007 (1970); Federal Mogul Corporation, 212 NLRB 950 (1974).10 The complaint alleges that similar threats of discharge were made by the following supervisors or management per- sonnel : Louis Pappas, Robert Bradley, Randall, Parrish, and Roy Smith. Orval Meeks testified that on July 9 he went to the Com- pany's office to obtain insurance forms and there met Randall Parrish who invited him to the shop office. Foreman Earl Edwards was present. According to Meeks, who was em- ployed in the service department, Parrish told him that as the service department employees had not been allowed to vote in the union election Meeks had no business "messing around with any union activities. And he [said] it was a wildcat strike and it was illegal, and if I didn't come in by the following Monday . . . I would be fired, and I would lose my seniority. He [said] my insurance would be cancelled out on me."" Parrish denied making the foregoing statements to Meeks. According to Parrish, he asked Meeks to return to work but denied that he had threatened Meeks with discharge, loss of seniority, or cancellation of insurance. However , Edwards testified that he also urged Meeks to return to work and informed Meeks that if he did not report by the following Monday "he could possibly lose his job . . . [c]ould be re- placed is what I told him." Without discrediting Parrish, the tenor of what was said to Meeks by Parrish and Edwards on the occasion in question would reasonably lead Meeks to understand that he would be discharged if he did not -report for work by the next Monday. Such threat constituted a violation of Section 8(a)(1).12 Larry Dwayne Fox testified that a few days after the strike began his-supervisor Louis Pappas, telephoned him and in- formed him that if he did not report to work by a particular date the Company would consider that he had voluntarily 10 The complaint does not allege any violation of Sec 8(a)(3) arising from Respondents' letters of July 25 and 31. 11 Meeks further testified that Parrish "told me I could come in and work as much overtime as I wanted to.. For one other thing, he asked me if I would mind calling some of the employees of Matlock who were outside [on] the picket line He asked me if I would mind calling Wayne Donaldson and Leon Walker and try to persuade them to come into Mat- lock Truck Body & Trailer." This testimony does not appear to be related to any allegation in the complaint Accordingly, I will make no findings in respect thereto. 12 The fact that the threat was not carried out did not cure the violation of the Act. quit. Fox replied, "I wasn't going to come back'there until Mr. Matlock . . . [t]alked to the Union organization." As Fox's testimony is undenied, for the reasons stated above, I find that Pappas' remarks to him constituted a violation of Section 8(a)(1). Wayne Donaldson testified that in the morning of July 12 he telephoned his foreman , Randall Parrish, to ask whether he could get his paycheck. During the conversation, accord- ing to Donaldson, Parrish asked whether he was coming back to work and he responded that he did not know . Then Parrish said, "You have got until Monday to make up your mind because if you are not here Monday, you are fired ." Parrish denied having made the alleged incriminatory remark. I credit Parrish particularly, as in the conversation Donaldson had informed Parrish that Donaldson wanted his check be- cause he was leaving the city for a period of time. Donald C. Stock, who works as a truckdriver , testified that his supervisor, Roy Smith, telephoned him on July 15 and asked him to make a truck run. During the conversation Smith said that "George Parrish told him that anybody that wasn't in by a certain . . . would be counted as quit ... . When Stock answered that he would not cross the picket line Smith responded that he hated to lose a good truckdriver. As this testimony is undenied I find it constitutes a further viola- tion of Section 8(a)(1). Similarly, Larry Dale Hymer testified that on July 18 Fore- man Robert Bradley telephoned him and informed him that if he wasn't back at work by the 19th he would lose his seniority and would be deemed to have voluntarily quit his employment. I credit this testimony, despite Bradley 's denial, and I find that it constitutes evidence of a violation of Section 8(a)(1). 2. Conduct by Foreman Earl Edwards As sometimes happens a strike may cause rifts among friends and relatives. John Dempsey Perry, a striking em- ployee, is keeping company with the sister-in-law of Foreman Earl Edwards. Before the strike there was a friendly relation- ship between the two men and Edwards had helped Perry obtain employment with the Company. Perry testified that on July 10 Edwards telephoned him and inquired whether he was going to work that afternoon. Both men worked on the second shift. Perry said that he would "stay out with the strikers." According to Perry, Edwards also said "everybody that went out would be fired , and he said the ones already out on-the street were going to be fired." Perry further testified that the next day Edwards again telephoned him and advised him to go to work "because it is not a legal strike." Finally, on Friday, July 12, Edwards once again telephoned and in- formed Perry that if he returned to work, as many vacancies had developed because of the strike, Perry had a good chance of being transferred to the day shift and of being advanced to a double-A mechanic rating. Edwards also warned Perry that if he was not back at work by Monday he would lose his job. Edwards acknowledged that during one of the conversations with Perry he said that if Perry did not return to work he was liable to loose his job; that he would be replaced. I credit Perry and find that Edwards had conveyed to him a threat of discharge for engaging in a protected activity and that such MATLOCK TRUCK BODY & TRAILER CORP. threat by a supervisor constitutes a violation of Section B(a)(1) on the part of Respondents. 3. Other threats of discharge Bobby Cleveland Waynick testified that on July 11, while he was walking the picket line, George Parrish approached him and began a conversation in which Parrish stated that the strike was an illegal strike and, "I feel sorry for some of the amen who are out here because they live from week to week and come Friday, they will get their last check." George Parrish testified that he asked Waynick to return to work and during their conversation he said, "l certainly do feel sorry for some of the people that is on this line because I know if they're like me, they can't afford to be without work ...." Parrish denied telling Waynick the strike was illegal. Re- gardless of which version of the conversation is accepted the incident does not spell out a violation of the Act. Eli Coleman -Baldwin testified that about July 20 he tele- phoned the plant offices because he had been informed that Personnel Director Richard Tucker and Plant Superintend- ent Gene Stone wished to speak to him. When he was con- nected with Stone, according to Baldwin, Stone said, "it's too late now . . . you have been fired. . . ." Stone denied hav- ing had any such conversation with Baldwin. I credit Stone. ]Baldwin was an unprepossessing witness and his testimony in part was farfetched. On the other hand, Stone, who was subject to more extensive examination on the witness stand, gave his testimony in a straightforward, unequivocal manner and impressed me as being a reliable witness. I shall recom- mend dismissal of this allegation. 4. Promise of holiday pay James H. McClanahan testified that in order for him to receive holiday pay for July 5 he was required to work a full shift the next workday which was July 8. However, he had a dental appointment for 2 p.m. that afternoon. He spoke to his foreman, Jack Robinson, about the problem. About 1:30 p.m. on July 8 Robinson informed him that he could leave for his dental appointment without jeopardizing his holiday pay. McClanahan did not keep his dental appointment and subse- quently joined the strike. With prodding by General Counsel, McClanahan further testified that Foreman Robinson said that he "would fix it up with Robert Bradley where I wouldn't lose the holiday pay, but he didn't want me out there messing around with those people. . . ." McClanahan (lid not receive pay for the July 5 holiday. McClanahan's initial testimony did not indicate any condition was attached to the permission given him to keep his dental appointment. The testimony about "messing around with those people" was later given seemingly as an afterthought. I find that the evidence does not support the applicable allegation of the complaint which is that Respondents on July 9 promised a benefit to their employee by telling him that if he did not join the strike he would receive holiday pay. 5. Threats concerning vacation pay Striking employees Paul Thomas Brown and Sammy E. Meadows testified that about July 18 each separately asked 351 Personnel Director Richard Tucker whether he could receive his vacation check. Each was told that he would have to sign a slip saying that he had voluntarily quit his employment before he could get the vacation check. Neither signed such instrument and both men received their vacation paychecks at the end of the next succeeding pay period. Tucker testified that it was the Company's practice to dis- tribute vacation checks at the regular pay date immediately before an employee is scheduled to leave on his vacation and that only when an employee' resigns or is involuntarily ter- minated does the employee receive his vacation pay prior to a regular pay date. Tucker further testified that he under- stood that the two men wanted their vacation pay immedi- ately when they requested it, which was before the regular pay dates, and that is why he asked them to sign forms indicating that they had resigned. As Tucker's explanation is credible and as the employees did in fact receive their vaca- tion pay at about the times they would have received it had there been no strike, I find that these incidents do not estab- lish any violation of the Act. 6. Impediments to removal of tool boxes John Leonard Humphrey and Roy David Allen," both of whom are striking employees, testified that when they sought to remove their toolboxes from the Company's premises the secretary in the personnel office asked them to sign a slip of paper saying that they had voluntarily quit their employment. Personnel Director Tucker testified that employees, includ- ing the striking employees, were not required to evidence an intention to quit in order to remove toolboxes. The testimony of Humphrey and Allen at most reflect a misunderstanding between them and the personnel secretary. The latter testified that Allen told her he was quitting and that is why she asked him to sign a statement to such effect. I find these incidents do not evidence any violation of the Act. 7. Interrogation Billy Pat Williams testified that he joined the strike on July 9, returned to work within a week and a half, and later rejoined the strike. During the interim period while he was at work he was questioned in the plant by a Pinkerton Detec- tive Agency representative, John Drake, who had been hired by the Company to investigate vandalism of equipment.14 13 Allen also testified that about August 1, when he removed his toolbox from the plant, he had the following conversation with his foreman, Ronald Perry: He said you f-up, he said you only had thirty more minutes to go and you would be all right, and I asked him what he meant, and he said everybody who walked out were fired and they had already hired replacements for them, and I didn't say anything to him, because I didn't know what to think then They-asked me to sign a statement, and then they tell me I'm fired Perry denied having made such statements. I credit Perry's denial. 14 Roy Matlock testified that a reward had been announced for informa- tion which would lead to the apprehension of the vandals and the Company was informed that Williams might have knowledge about the subject For this reason he was interviewed by Drake. 352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Williams, during his conversation with Drake, the latter said, "You know that Matlock is going to win this .... The Union doesn't have a chance." Also, Drake asked whether another, striking employee, Bob Merritt, was in- volved in any violence to which Williams answered in the negative. Then, Drake asked Williams if he could win Bob Merritt over to the Company. I find the foregoing does not establish any violation of the Act as there is no proof that Drake had been authorized by the Company to speak with Williams about any subject other than the vandalization of company property or that the Company had learned that Drake had spoken to Williams about its labor relations prob- lems. 8. Surveillance On July 20 striking employee Robert C. Merritt went to the Union's offices, which are in a building where other labor organizations maintain offices and which is referred to as the labor temple, for the purpose of giving a statement with respect to the instant proceeding. His wife, Beverly Merritt, who was waiting for her husband outside the building, testi- fied that she observed an automobile with a Pinkerton Detec- tive Agency insignia on its front door drive past the labor temple and about 10 minutes later return. On the return trip, according to Mrs. Merritt, a man on the passenger side of the automobile appeared to have a camera and appeared to be taking pictures just as her husband was emerging from the building. This incident does not constitute proof of unlawful surveillance. Robert Merritt and Paul Thomas Brown testified that on July 10, while the striking employees were holding a meeting on a railroad bank just off Omohundro Drive at-a point about a half mile from the Company's plant, they observed George Parrish and a salesman driving along the street taking motion pictures. Parrish testified that at the time in question he and the salesman were driving along the streets bordering the Company's plant taking motion pictures. However, he denied that any pictures were taken of the union meeting and testi- fied that he was not aware that such meeting was taking place. The pictures that were taken on the occasion in ques- tion were viewed both by the General Counsel and Respond- ents' attorneys and they stipulated at the hearing that the films contain no pictures of the union, meeting. "Few propositions are more firmly embedded in the law of labor relations than that an employer who spies upon the union activities of his employees engaged in a flagrant viola- tion of the rights guaranteed by Section 7 of the Act. Such conduct has been condemned by the Board and the courts since the early days of the Act, for experience has shown that employers resort to labor espionage or surveillance for the purpose of obstructing or destroying employees' self-organi- zational rights and activities. If such first steps leading to discriminatory practices are outlawed, the commission of other unfair labor practices may be thwarted." (Footnotes omitted.)" Surveillance is unlawful regardless of the em- ployer's good faith" or whether there-is proof that any em- 15 Wallace Press, Inc., 146 NLRB 1236, 1238 (1964). 16 Kingwood Mining Company, 166 NLRB 957 (1967), enfd. 404 F.2d 348 (C.A 4, 1968) ployees were intimidated or coerced thereby." Thus, photo- graphing the activities of striking employees constitutes unlawful surveillance absent any legitimate purpose for tak- ing the pictures. L8 According to George Parrish, company property had been vandalized and nonstriking employees had been harassed. The photographs were being taken for use in connection with an application the Company was making to hold persons in contempt of a state court injunction. As the testimony of Merritt and Brown does not establish that Parrish took pic- tures of the union meeting, and as Parrish denied both taking pictures of the meeting and knowledge of the meeting, and as there appears to have been a legitimate reason for taking motion pictures of the Company's premises and the activities on the road abutting the premises I find, contrary to General Counsel, no unlawful surveillance established by, reason of the foregoing. 9. Endorsement of violence against striking employees General Counsel adduced evidence concerning five inci- dents of assaults and of batteries by nonstriking employees upon striking employees allegedly in the presence of company supervisors. General Counsel contends that these incidents constitute violations of Section 8(a)(1) because supervisors allegedly "condoned" the offensive conduct "by aiding, abet- ting and assisting" the nonstriking employees. Danny Swindle testified that on July 8 about 4:10 p.m. he had an encounter with a nonstriking employee, Ronnie McCandless, during which he struck Ronnie McCandless. About 9 p.m. that night while he was sitting across the road from the plant, Lloyd McCandless, Ronnie's father, came to the fence and called to Swindle, "I am going to blow your ... away." Swindle crossed the street towards McCandless. McCandless reached into his pocket, "started pulling out a pistol," and cocked the weapon. Swindle informed a police- man that McCandless was going to shoot him. McCandless then uncocked the pistol, returned it to his pocket, and began walking toward the plant. McCandless gave the pistol to Foreman Clifford Dodrill who laid it on top of a lunch sack and an employee wearing a yellow shirt picked up the sack and pistol and carried the items inside the plant. Swindle's testimony was substantially corroborated by Robert Merritt and Paul Thomas Brown. Lloyd McCandless, while acknowl- edging that he had a acrimonious discussion with Swindle and that he was accused of having a gun in his possession, denied that he had threatened Swindle with a pistol and further testified that he does not own a pistol, never owned a pistol, and did not have a pistol on his person on the occasion in question.19 Clifford Dodrill testified that McCandless gave him no pistol and that he did not see a pistol on the occasion in question. I credit the testimony of Lloyd McCandless and Dodrill that McCandless did not have a pistol in his possession on the night of July 8. Accordingly, I find that the testimony adduced by General Counsel with respect to this incident does not establish a violation of Sec- tion 8(a)(1). 17 Premier Worsted Mills, 85 NLRB 985, 986 (1949) 18 Russell Sportswear Corporation, 197 NLRB 1116 (1972) 19 Roy Matlock and Robert Burton who were in the area at the time s testified that they did not see McCandless with a gun MATLOCK TRUCK BODY & TRAILER CORP. 353 Don Edward Stone testified that 3 or 4 weeks after the strike began, as an automobile carrying four nonstriking em- ployees, including Randy Carpenter and Wayne Strayn, drove past a point where striking employees were stationed, unpleasant epithets were exchanged. When the automobile reached the plant gate Carpenter and Strayn left the car holding chains and proceeded along the street towards Stone and another striking employee "cussing and threatening" the strikers. While this was taking place George Parrish was stadning inside the plant gate. When Carpenter and Strayn returned to the plant gate, according to Stone, "one of them run up toward Mr. Parrish with the chain, and I couldn't say that the boy exactly handed the chain, but they were talking to Mr. Parrish, and one of the boys, this Wayne guy, run around to the side like to hide the chain." Parrish testified that at the time of the incident he had crossed the street from the plant gate to ask a police officer to stop rocks from being thrown at automobiles entering the plant. As he was return- ing to the plant he observed Strayn and Carpenter with link chains in their hands going into the street. He grabbed Strayn and pulled him back towards the plant in order to prevent violence. Parrish's testimony was substantially corroborated by Gene Stone and John Worrell, I credit Parrish and find that his conduct on this occasion was not proved to be unlaw- ful. Robert Merritt and Gene Alan King testified about an incident when they were assaulted on a road leading away from the plant. About 2:30 a.m. on August 3, as they were driving to get a snack at a drive-in market, they passed a group of automobiles and one pulled out into the road and blocked their way. Wayne Strayn, a nonstriking employee, came to their car and struck Merritt with a chain. Merritt succeeding in pulling the chain out of the hand of Strayn, who then ran off. Another nonstriking employee, Randy Carpen- ter, came towards the car and pointed a shotgun at Merritt. The latter shouted that Carpenter better not shoot because he was in enough trouble and the police were watching. Carpen- ter then ran to the other side of the car, and struck Gene King on the arm with the shotgun and threatened to kill King. At thus point Merritt succeeded in starting his car and left the scene. This incident is alleged to be a violation of Section 8(a)(1) because, according to General Counsel, it was wit- nessed by two company supervisors. Merritt testified that Bob Burton and J. R. Sosh were in their automobiles close to the scene and neither made any effort to stop the assault.20 Sosh testified that he was alone in his vehicle and explained that it was fortuitous that he was in the area at the time of the incident. Burton denied that he was present. I credit Sosh and Burton and find no violation of the Act arising from the incident. On Saturday morning, August 24, about 1:12 a.m. when the last shift of the week was leaving the plant, a group of nonstriking employees assaulted and beat two pickets, Vin- cent Earl Petty and Larry Dwayne Fox. Responsibility for the incident is attributed to Respondents by General Counsel because prior to this date supervisors had been stationed at the plant gates whenever work shifts changed or ended, but 20 King testified that "J. R Sosh . was parked on our lefthand side of the street and there were approximately, at least, a dozen men that was sitting in the back of his truck " King did not identify Burton as having been present. on this night no supervisors were present. Presumably, Gen- eral Counsel wishes an inference drawn that the supervisors knew in advance that nonstriking employees planned to at- tack pickets and therefore did not station themselves at the gates as had been their earlier practice. However, Matlock testified that the previous night he had received a telephone call at home from a police officer, who was then at the plant, requesting cooperation in halting name calling and other dis- turbances between the nonstriking and the striking em- ployees. Matlock directed Night Superintendent Burton to instruct the employees that when they leave the plant to keep the windows of their automobiles closed and to say nothing to the pickets. The next day Matlock directed Burton to discontinue stationing foremen at the plant gates when the employees leave work because Matlock was of the opinion that strikers were harassing nonstrikers in order to impress the foremen and that removing the foremen from the gates would tend to alleviate the problem. This testimony was cor- roborated by Burton. I credit Matlock as to this matter and I find the evidence inadequate to establish any responsibility on Respondents' part for the August 24 incident. The last incident took place about 4:15 p.m. on August 26. Two striking employees, Wayne Donaldson and O. W. Vaughn, were patrolling gate No. 1 with picket signs. Fore- men John Worrell and Randall Parrish were standing inside the gate. A nonstriking employee, Randy Carpenter, came from a plant building to the gate and began to taunt the pickets. The two supervisors apparently found Carpenter's remarks amusing because they laughed. At some point Car- penter invited Donaldson to come inside the plant gates to "get" him. Donaldson replied, "No, we ain't as dumb as y'all to cross over and start no trouble." Carpenter asked, "Who are you calling dumb?" And then drew a small knife with which he lunged at the pickets. In reaction Vaughn jumped away and the two foremen laughed at the way the picket jumped. The testimony of Parrish and Worrell differs some- what from the foregoing. Both testified that Carpenter did not threaten the pickets with a knife and both testified that they were amused by the incident. Even accepting the version given by General Counsel's witness I do not find that it establishes a violation of the Act. Although Carpenter's ges- ture with his knife may have caused Vaughn to jump back instinctively, the knife was too small and Carpenter was too far away for Vaughn to have been in any danger. While the supervisors are not to be commended for laughing while Car- penter was taunting the pickets, nevertheless, that does not amount to a violation of the Act. E. Character of the Strike The strike began at noon on July 8 following the early morning meeting between Foreman Gene Roberts and the approximately 20 employees in the day shift' s side and front- end departments. Roberts' forceful direction to these em- ployees to increase'their rate of production precipitated the walkout. However, it is improbable that that event alone was the cause of the strike. There were about 135 production and maintenance employees in the plant.21 It is not likely that a substantial portion of the work force would leave their jobs 11 There were 136 employees eligible to vote in the July 13, 1972, election 354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and that the Union would endorse, and support at substantial cost, a strike in a unit of 135 employees if the only grievance was that 20 employees were being pressured to work harder. But no declarations were made by union officials regarding the strike and its objectives'22 nor was the Company advised of the reasons for the strike or what was demanded of it in order to end the strike. This does not mean that the strike is purposeless or was begun for no reason at all. Valid and cogent inferences as to the reason for and objectives of the strike may be drawn from the ,circumstances. An election was held on June 9, 1970. It was set aside on June 22, 1971, and a second election was held on July 13, 1972. As a result thereof the Union was certified as the statu- tory representative on August 25, 1972. The Company re- quested review of the certification which was denied on Octo- ber 17, 1972. Nevertheless, the Company still refused to recognize and to negotiate with the Union and an unfair labor practice proceeding was instituted which resulted in a bar- gaining order issued on April 24, 1973, in the case reported at 203 NLRB 110_ The Company persisted in its refusal to recognize the Union and enforcement of the Board's order was mandated by a United States court of appeals following a decision issued on April 26, 1974. Despite this history, as of June 8 and as of the date of the hearing herein, the Com- pany has continued in its refusal to recognize and to bargain with the Union.23 Since July 13, 1972, when the Union's majority was estab- lished at a Board election, the employees have been denied the representation to which they have been entitled under the Act. Testimony referred to above reflects the employees' dis- content, arising from the Company's refusal to deal with their representative on their behalf.24 In this connection the find- ings of Congress set forth in Section 1 of the Act are perti- nent: The denial by some employers of the right of em- ployees to organize and the refusal by some employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest 22 Self-serving declarations at union meetings or on picket signs that an employer's unfair labor practices are the reasons for a strike do not neces- sarily establish such fact, particularly where other evidence points to differ- ent reasons. N.L.R.B. v. Scott & Scott, 245 F.2d 926, 929=930 (CA. 9, 1957), Filler Products, Inc. v N.L.R.B., 376 F 2d 369, 379 (C.A. 4, 1967) 23 Presumably the Company's justification for its persistent refusal to recognize and to bargain collectively with its employees' statutory represen- tative is that it had not exhausted all possible avenues of appeal and there was pending in the Supreme Court of the United States a petition for a writ of certiorari to the United States Court of Appeals for the Sixth Circuit The petition was denied on -October 19, 1974, after the hearing in this case closed 24 As an example, Claude T. Jackson, district organizer for the Union, testified that after the Company gave the unlawful unilateral wage increases in 1974 it was reported to him by Danny Swindle, who was on the Umon's negotiating committee, and by Larry Cummings and Larry Summey that several people were upset about the raises because of the greater amount given to the maintenance employees and "there was a lot of talk about striking " Jackson discouraged a walkout because he didn't think the Union was strong enough to strike It is seen that although Respondents' unlawful wage adjustments did not immediately cause.a strike, they aggravated the employees' dissatisfaction arising from Respondents' refusal to recognize and to negotiate with the Union, and hence were a contributing cause of the strike. The plausible inference from all the circumstances, and I so find, is that the underlying cause of the strike is the Com- pany's continuing unlawful refusal to bargain collectively with its employees' designated representative. The effect upon the employees of the Company's disregard of its statu- tory obligations over a period of almost 2 years has been much like an infection caused by a contaminated object enter- ing the body-untreated, it grows larger and larger until a boil forms that bursts when subject to only slight irritation. Here, the Company's persistent unlawful refusal to recognize and to bargain collectively with the Union has infected its relationships with its employees so that the unwholesome labor situation was ready to erupt into a strike and finally did erupt into a strike when it was subjected to the irritation provided by Roberts' statements on July 8 to the side and front-end department employees. Had there been no unlawful refusal to recognize and to bargain, then an avenue for ven- tilating and resolving the grievance about a higher production target for these departments would have existed. The em- ployees' representative would have been able to discuss and to negotiate with the Company about the subject and the likelihood that the incident would have developed into a strike would have been minimized. "[W]hen it is reasonable to infer from the record as a whole that an employer's unlaw- ful conduct played a part in the decision of employees to strike, the strike is an unfair labor practice strike."25 In addition to finding that the Company's unlawful refusal to recognize and to bargain collectively with the Union was a cause of the strike, I • also find that it has prolonged the strike." Where there is a statutory representative the cus- tomary channel for terminating a strike is through negotia- tions between the employer and the representative of the striking employees.27 However, this way has been barred by the Company's unlawful refusal to treat with the Union .21 No alternative or equally efficacious avenue of settlement exists. As a result, no formal demands have been presented to the Company on behalf of the striking employees and no dealings directed towards settlement of the strike have taken place. It, therefore, necessarily follows that Respondents' un- lawful refusal to recognize and to bargain with the Union has prolonged the strike.29 It is well settled that "if an unfair labor practice [has] anything to do with causing the strike, it [is] an unfair labor practice strike" even though other issues may also be involved.30 Likewise, if a strike is prolonged by an em- ployer's unfair labor practices that strike also assumes the character of an unfair labor practice strike." Respondents, 25 Larand Leisurehes, Inc, 213 NLRB No. 37, fn. 4 (1974) 26 I do not rely upon the unlawful threats, discussed above, in reaching the conclusion that Respondents' unfair labor practices have prolonged the strike. 27 See for example Sec. 203(a) of the Act 25 Thus, July 16, 1974, the Union sent to the Company a telegram asking for a meeting for the purpose of negotiations. This was promptly rejected on behalf of the Company for the alleged reason that the "question of your Union's representation of the Matlock employees is presently in the Court." 29 Cantor Bros., Inc., 203 NLRB 774 (1973). 30 United Steelworkers ofAmerica, AFL-CIO v. N.L.R.B. [Mississippi Steel Corporation], 405 F.2d 1373, 1377 (C.A.D C, 1968), and cases there cited. 31 International Union ofElectncal, Radio and Machine Workers, Local 613 [Erie Technological Products, Inc.] v. N.L.R.B., 328 F.2d 726 (C.A 3, 1964); N..L.R.B v Giustina Bros. Lumber Co., 253 F.2d 371, 374 (C.A. 9, 1958); General Drivers and Helpers Union, Local 662 IBT [Rice Lake MATLOCK TRUCK BODY & TRAILER CORP. citing Typoservice Corporation, 203 NLRB 1180 (1973), and Filler Products, Inc. v. N.L.R.B., 376 F.2d 369, 380 (C.A. 4, 1967), argue that an unfair labor practice strike does not result merely because the strike follows an unfair labor prac- tice, but a causal connection between the two events must be established. However, as explained above, I find such causal connection. The fact that the employees delayed going on strike for almost 2 years after Respondents first refused to bargain does not mean that Respondents' continuing refusal to bargain was not the efficient contributing cause of the strike.32 The Company's unlawful refusal to recognize and to bargain with the Union began at least as early as November 27, 1972. It has continued uninterrupted since and has been aggravated by the Company's unilateral adjustments in wage rates in April and June 1974. To accept Respondents' thesis that the Union's failure to call a strike immediately following the Company's first unlawful refusal to engage in negotia- tions would be to penalize unfairly the Union for its restraint. Although stated in another context, but nevertheless applica- ble here, the "language of the Act does not require and its purposes would not be served by holding that dissatisfied workmen may receive its protection only if they exert the maximum economic pressure and call a strike." N.L.R.B. v. Kennametal, Inc., 182 F.2d 817, 819 (C.A. 3, 1950). Simi- larly, the fact that Respondents' unfair labor practices started before the strike began does not mean that they have not prolonged the strike. The same unfair labor practices may both cause and prolong a strike. Contrary to Respondents, I find, in agreement with General Counsel, that the strike is an unfair labor practice strike having been caused and prolonged by Respondents' unfair labor practices.33 IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relationship to trade, traffic, and commerce among the sev- eral States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Creamery Co] v. N.L.R.B., 302 F.2d 908 (C.A.D C., 1962), cert denied 371 US. 927 32 The facts in Capital Rubber & Specialty Co., Inc., 198 NLRB 260 (197:"1), cited by Respondents, are substantially different than here. In the Capital case the company has recognized and had bargained collectively with the union and on August 17, 1971, terminated negotiations asserting, in effect, that an impasse existed. The Board found that the company's conduct in this regard constituted an unlawful refusal to bargain, but that such conduct did not provoke a strike which began 6 weeks later. Unlike the Capital case there was no single incident in this case that defined and circumscribed the alleged unfair labor practices Similarly, Roma Paper Products Corp., 208 NLRB 644 (1974), is distinguishable because, among other things, the reasons for the strike were unrelated to the unfair labor practices. 33 In the circumstances here where there have been persistent and serious unfau labor practices and a continuing disregard of an order of the Board, the burden is on the Respondents to demonstrate that the strike would have occurred and would have continued irrespective of its unfair labor practices, rather than upon the General Counsel to demonstrate the contrary, that is, that but for Respondents' unfair labor practices there would have been no strike and that it would not have lasted so long See N.LR.B. v. Stackpole Carbon Company, 135 F.2d 959, 961-962 (C A 7, 1943); Wooster Division ofBorg-Warner Corporation, 121 NLRB 1492 (1958), Philip Carey Manu- factui ing Company, Miami Cabinet Division v N.L.R.B., 331 F.2d 720, 729 (C.A 6, 1964), cert denied 379 U S 888. V THE REMEDY 355 Having found that Respondents have engaged in unfair labor practices, I shall recommend that they cease and desist therefrom and that they take certain affirmative action de- signed to effectuate the policies of the Act. A general order to bargain collectively is unnecessary in this proceeding as it would merely duplicate the outstanding order in Case 26-CA--4579, reported at 203 NLRB 110. I have also found that the strike, which began on July 8, 1974, and which was still in progress on the dates of the hearing in this case, was caused and has been prolonged by Respondents' unfair labor practices. Accordingly, I shall recommend that, upon application for reinstatement, Re- spondents shall reinstate to their former jobs or, if those jobs no longer exist, to substantially equivalent positions , without impairment of their seniority or other rights and privileges, all those employees who participated in the strike which be- gan on July 8, 1974, and who have not already been rein- stated, dismissing, if necessary, any persons hired as replace- ments on or after July 8, 1974 . 34 If, after such dismissals, there are insufficient positions remaining for all the striking employees who desire reinstatement, the available positions shall be distributed among them, without discrimination be- cause of their union membership, activities, or participation in the strike, in accordance with seniority or other nondis- criminatory practice as theretofore was applied by the Com- pany in the conduct of its business . Those strikers for whom no employment is immediately available after such distribu- tion shall be placed upon a preferential hiring list with pri- ority determined among them by seniority or by such other nondiscriminatory practice as theretofore was applied by the Company in the conduct of its business and, thereafter, in accordance with such systems, they shall be offered reinstate- ment as positions become available and before other persons are hired for such work. I shall also recommend that the Respondents make the striking employees whole for any loss of earnings they may have suffered or may suffer by reason of Respondents' refusal, if any, to reinstate them, by payment to each of a sum of money equal to that which he normally would have earned during the period from 5 days after the date on which he applied, or shall apply, for reinstatement, to the date of Respondents' offer of reinstatement to him, absent a lawful justification for Respondents ' failure to make such offer. Backpay shall be computed on the basis of calen- da}- quarters, in accordance with the method prescribed in F W Woolworth Company, 90 NLRB 289 (1950). Interest at the rate of 6 percent per annum shall be added to the net backpay and shall be computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). Upon the basis of the foregoing findings of fact and upon the entire record in this case , I make the following: 34 This recommendation is not to be construed as requiring reinstatement of any striker who because of strike misconduct , or other reason, is disquali- fied from receiving the benefits of the reinstatement and backpay recom- mendations herein. A ruling was made during the hearing that questions relating to the potential entitlement of any strikers to reinstatement should be deferred to the compliance stage of this proceeding . See Yale Manufac- turing Company, Inc., 150 NLRB 1102, 1114 (1965). 356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. By granting wage increases to its production and mainte- nance employees who are included in the collective-bargain- ing unit described above during the months of April and June 1974, without affording the Union an opportunity, to bargain about such matters, Respondents have engaged in unfair la- bor practices within the meaning of Section 8(a)(5) and,(1) of the Act. 2. On various dates during the month of July 1974 by threatening to discharge its employees who were participat- ing in a lawful strike, Respondents have interfered with, re strained, and coerced employees in the exercise of the rights guaranteed in Section 7 of the Act and thereby have engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 3. The strike which began on July 8, 1974, is an unfair labor practice strike. 4. 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: ORDER35 Respondent Roy L. Matlock and Respondent Matlock Truck Body & Trailer Corp., its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Making or effecting any changes in the wages, hours, or other terms or conditions of employment of the employees in the collective-bargaining unit described below without first giving notice to their collective-bargaining representative-and affording such representative an opportunity to engage in collective bargaining with respect to any such change. The collective-bargaining unit is: All production and maintenance employees, including working foremen, parts clerks, material handling em- ployees, inspectors, truckdrivers and janitors employed by Respondents at their 1070 Visco Drive, Nashville, Tennessee, location excluding all office clerical em- ployees, salesmen, technical and professional employees, guards and supervisors as defined in the Act. (b) Threatening with discharge or other reprisals em- ployees who engage in a lawful strike. (c) In any like or related manner interfering with, restrain- ing, or coercing employees in the exercise of the rights guar- anteed them in Section 7 of the Act. 2. Take the following affirmative action, which is deemed necessary to effectuate the policies of the Act: (a) Upon application, offer immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to 35 In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and order, and all objections thereto shall be deemed waived for all purposes. substantially equivalent positions, without prejudice to their seniority or other rights and privileges previously enjoyed, to all those employees who participated in the strike'which be- gan on July 8, 1974, and who have not already been rein- stated, in dismissing, if necessary, any persons hired as re- placements by Respondents on or after July 8, 1974. If sufficient jobs are not available for these employees, they shall be placed on a preferential hiring list in accordance with their seniority or other nondiscriminatory practices theretofore utilized by the Company, and they shall be offered employ- ment before any other persons are hired. Respondents shall also make whole these employees for any loss of earnings they may suffer by reason of Respondents' refusal, if any, to rein- state them in accordance with the terms of this recommended Order, in the manner set forth in the section of this Decision entitled "The Remedy." (b) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payments records, timecards, person- nel records and reports, and all other records necessary to analyze the amounts of backpay due under the terms of this recommended Order. (c) Post at their plant in Nashville, Tennessee, copies of the attached notice marked "Appendix."36 Copies of said no- tice, on forms provided by the Regional Director for Region 26, after being duly signed by Respondents' representative, shall be posted immediately upon receipt thereof, and be maintained by them for 60 consecutive days thereafter, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by Respondents to insure that said notices are not altered, defaced, or covered by any other material. (d) Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Order, what steps the Respondents have taken to comply herewith. IT IS FURTHER ORDERED that except as herein specifically found, the allegations, of the complaint alleging violations of Section 8(a)(1), (3), and (5) be dismissed. 36 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 NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BORAD An Agency of the United States Government WE WILL NOT make or effect any change in the wages, hours, or other terms or conditions of employment of the employees in the collective-bargaining unit described be- low without first giving notice to District Lodge 155 of the International Association of Machinists and Aero- space Workers, AFL-CIO, their collective-bargaining representative, and affording such representative an op- portunity to engage in collective bargaining with respect to any such proposed change. The collective-bargaining unit is: MATLOCK TRUCK BODY & TRAILER CORP. 357 All production and maintenance employees, including working foremen, parts clerks, material handling em- ployees, inspectors, truckdrivers and janitors em- ployed by Respondents at their 1070 Visco Drive, Nashville, Tennessee, location excluding all office clerical employees, salesmen, technical and profes- sional employees, guards and supervisors as defined in the Act. WE WILL NOT threaten with discharge or other repris- als any employee who engage in a lawful strike. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed in Section 7 of the Act. WE WILL, upon application, offer immediate and full reinstatement to their former jobs , or, if those jobs no longer exist, to substantially equivalent positions, with- cut prejudice to their seniority or other rights and privi- leges, to all our employees who have engaged in the strike which began on July 8, 1974, and who have not already been reinstated, dismissing, if necessary, any em- ployees hired as replacements since the beginning of the strike. If insufficient jobs are available for these em- ployees, they shall be placed on a preferential hiring list and they will be offered employment before any other persons are hired for such work. WE WILL make such ap- plicants whole for any loss of earnings they suffer by reason of any refusal on our part to reinstate them begin- ning 5 days after their application for reinstatement until the date of our offer of-reinstatement. ROY L. MATLOCK MATLOCK TRUCK BODY & TRAILER CORP