Mosher Steel Co.

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mosher Steel Company and United Steelworkers of America, AFL-CIO. Cases 23-CA-5165, 23-CA-5258 (formerly 16-CA-5699), and 23-CA-5282 (formerly 15-CA-5357) September 16, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On April 23, 1975, Administrative Law Judge Samuel M. Singer issued the attached Decision in this proceeding. Thereafter, Respondent filed excep- tions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions 2 of the Administrative Law Judge and to adopt his recommended Order as modified herein. Among other violations of Section 8(a)(1) not rele- vant here, the Administrative Law Judge found that Respondent violated that section of the Act by the following conduct: (1) interrogating employees as to whether or not they intended to strike or picket; (2) appealing to an employee to cross the picket line at the Houston plant by stating that if the employee crossed the picket line a second employee had agreed to do likewise; and (3) disseminating to employees who crossed the picket line and returned to work a statement of resignation from the Union that the em- ployees could copy and mail to the Union if they were concerned about the possibility of a union fine. In its brief in support of exceptions, Respondent maintains that inquiries made by its supervisors con- cerning employees' strike intentions were for the le- gitimate purpose of determining whether employees would participate in the strike-and hence the likely need for replacements-and therefore were not viola- tive of the Act. We would not quarrel with the propo- 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge 's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect . Standard Dry Wall Products, Inc. 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951) We have carefully examined the record and find no basis for reversing his findings. 2 In the absence of exceptions thereto , we adopt pro forma the Adminis- trative Law Judge's finding and conclusion that the record evidence does not support the allegations of the complaint that Respondent violated Sec. 8(a)(1) of the Act by creating the impression of surveillance over union activities, or that Respondent violated Sec. 8(a)(5) of the Act by unilaterally promulgating and implementing a change in breaks or rest periods. sition that questions about employee strike intentions are not per se unlawful but must be judged in light of all the relevant circumstances. Thus, where the rec- ord shows that at the time the questions were asked the Employer had a reasonable basis to fear an immi- nent strike and merely sought to ascertain the chances for keeping his business open, such inquiries are lawful.3 See Industrial Towel & Uniform Service Company, 172 NLRB 2254 (1968). On the other hand, an employer cannot rely on unsubstantiated rumor or mere speculation as a justification for ques- tioning employees concerning their intentions in the event a strike is called. Cf. W. A. Sheaffer Pen Com- pany, Division of Textron, Inc., 199 NLRB 242 (1972). Applying these principles to the instant case, it is apparent that long before any strike vote was taken ° and before negotiations between the parties had reached any impasse I Respondent undertook the systematic questioning of employees at the various plants involved here concerning not only their possi- ble participation in a strike but also their "gripes" and complaints. For example, about 1 month before the strike Superintendent Carney questioned employ- ee Gray as to whether he would "go out" in the event of a strike, and on various dates in May and early July employees were questioned about their strike in- tentions by Foremen Sedlar, Leddy, and Goeke. Fur- thermore, in certain instances questions about strike intentions were coupled with threats or promises of benefits. Thus, as found by the Administrative Law Judge, Foreman Upchurch told employee Rollings that he would "get to the top" by sticking with the Company and Vice President Banks warned employ- ee Montgomery, a union committeeman, that if the men struck he would be blamed for the strike. In view of these circumstances, we agree with the Ad- ministrative Law Judge's conclusion that by these and similar acts of interrogation Respondent violated Section 8(a)(1) of the Act .6 Turning to the issues raised by Foreman Leddy's appeal to employee Harris to cross the picket line at Respondent's Houston plant and to Respondent's conduct in preparing and disseminating to employees language that could be used to resign from the Union, we conclude, contrary to the Administrative Law Judge, that neither of these actions constituted 3 This assumes, of course, that the inquiries are unaccompanied by threats, promises, or other coercive conduct Strike votes were taken at Respondent's several plants on July 15, 16, and 17. 3 Respondent's initial economic proposal was not presented to the Union until the July I bargaining session. 6 On the other hand, we do not find that Respondent violated Sec . 8(a)(1) by questioning employees concerning their strike intentions after the strike became imminent and where the questioning was not coupled with threats or promises. For example, contrary to the Administrative Law Judge, we do not find a violation of Sec. 8(a)(1) based on the exchange between Dallas Foreman Upchurch and employee York on the Saturday before the strike 220 NLRB No. 47 MOSHER STEEL COMPANY 337 unlawful interference under Section 8(a)(1) of the Act. As for Leddy's solicitation of Harris to return to work because another employee (Page) had agreed to return if Harris did, we find in such an appeal neither a promise of special benefit nor a threat of detriment. Accordingly, we are unwilling to find Foreman Leddy's appeal to Harris unlawful. See Coca Cola Bottling Company of Louisville, 166 NLRB 134, 135 (1967). With respect to the company-prepared statement of resignation from the Union, the uncontradicted record testimony establishes that Jones, Respondent's industrial relations manager, was ap- proached by several employees who had crossed the picket line and who voiced concern because they "had heard that they could be fined for coming to work if they had signed a Union card." In response to inquiries from these employees , Respondent's management contacted the company attorney who prepared the following statement: I am an employee of Mosher Steel Company and effective immediately I wish to cancel my membership in the United Steelworkers Union. Thereafter, at the direction of Respondent's presi- dent, this statement was sent to all plant managers and personnel directors under a covering letter that stated that the Union had threatened to fine employ- ees who had previously signed cards but had re- turned to work ; that the Union could fine such em- ployees unless they withdrew their membership; and that such withdrawal could be accomplished by mail- ing the Union a letter utilizing the above -cited lan- guage. Respondent's industrial relations director tes- tified that he told plant officials : "If the guys ask you for help . . . tell them what they can do to resign from the Union." Jones further testified that plant managers were directed to quote to employees the resignation language set forth above, but under no circumstances were the managers to furnish employ- ees with paper or stamps nor were they to mail the letters for employees. There is no evidence that any plant manager disregarded these instructions. On this record, we are not satisfied that by the above-described conduct Respondent violated Sec- tion 8(a)(1) of the Act as found by the Administra- tive Law Judge. Although Union Representative Corley asserted that under the provisions of the Union's constitution no employee who returned to work here could actually have been fined, it appears from the record that employees were concerned about the possibility of fines and communicated this concern to management . Absent some evidence that union resignation was a company-imposed condition for returning to work (or that employees were led to believe that it was such a condition), and absent any evidence. that the Company did more than furnish employees with resignation language, we decline to find that Respondent's conduct in this regard was unlawful. See Montgomery Ward & Co., Incorporated, 202 NLRB 593 (1973) 7 In passing, we also note our agreement with the Administrative Law Judge's finding that Respondent violated Section 8(a)(5) and (1) of the Act by an- nouncing and granting a general 6-percent wage in- crease and by granting numerous individual increas- es while negotiations with the Union were continuing-all without affording the Union notice or an opportunity to bargain. Although Respondent maintains that its conduct with respect to granting both types of increases was consistent with its past practice and hence (in Respondent's view) lawful, neither the facts of the case nor the law applicable thereto supports its posi- tion. With respect to the individual wage increases- variously styled by Respondent as "progress," "pro- motion," or "merit" increases-the record clearly demonstrates that Respondent had no set or auto- matic policy for such increases.' The record also indi- cates that the number of such individual increases- many of which were granted in a relatively brief peri- od of time-can fairly be described as "massive" and plainly represented a departure from any established practice by this Respondent. Finally, we cannot ig- nore the Administrative Law Judge's finding that commencing in late May and early June various company supervisors and officials met with employ- ees, singly and in groups, and solicited their com- plaints, including their complaints about wages, and that promptly thereafter certain employees received ' In its exceptions Respondent also urges that we reverse the Administra- tive Law Judge's finding of an 8(a)(I) violation based on Shreveport Fore- man Johnson's statement to employee Montgomery that if the men went out on strike "the Company would mail us a letter and giving us so many days and after that we would be fired if we didn't come back to work " Respon- dent argues that because the letter ultimately mailed to employees used the term "replaced" and not "fired" Johnson's statement cannot be isolated from the letter and held to violate Sec. 8(a)(I) of the Act (citing Coca Cola Bottling Co, 166 NLRB 134 at 139) Contrary to the Respondent, we conclude that Johnson's statement signif- icantly misstated employee rights in a manner that was likely to induce the employee to abandon his right to engage in protected activity and hence violated Sec. 8(a)(I) of the Act Cf Dayton Food Fair Stores, Inc v. N L R B, 399 F 2d 153 (C.A 6, 1968 ), cert denied 393 U S 1085 (1969). In this regard we note that Respondent's reliance on Coca Cola Bottling Co., supra, is totally misplaced. There, a supervisor's remark to employees that they would be "firedif they struck was found , in the context of the entire conversation including the supervisor's immediate retraction of the word "fired" and his explanation to employees that they could only be "re- placed," not to violate Sec 8(a)(l) Here, on the other hand , there was no such immediate retraction and explanation but rather the employee was left with the impression that his participation in concerted activity would lead to his discharge 8 Respondent's own witnesses testified in essence that there was no set policy on these raises but rather that they depended on any number of variables 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so-called "merit" or "promotion" increases. As for the general increase granted by Respondent in July, Respondent's vice president acknowledged that a yearly general increase was neither "guaran- teed" nor fixed either in terms of amount or in timing but rather depended on a vote by the board of direc- tors and on the Company's overall economic posture. Consistent with a finding that the grant of a general wage increase involved the exercise of a large mea- sure of business judgment and discretion is the rec- ord evidence that over the past several years general increases have been granted in months other than June or July, have been granted twice in a single year, and have varied in amount. We also note that the general increase granted here was announced only 11 days after Respondent presented the Union with an economic offer that contained no reference to the planned general increase and which drew from the Union a complaint that the Company was unwill- ing to give "a damn cent." Under all the circumstances present here, we are satisfied that the Administrative Law Judge correctly found that the general increase , as well as the indi- vidual increases, falls within the principle and prohi- bition of N.L. R.B. v. Benne Katz, d/b/a/ Williams- burg Steel Products Co., 369 U.S. 736 (1962). ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended , the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge , as modified below, and hereby orders that Respondent Mosher Steel Company, Houston, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order as so modified: 1. Substitute the following for paragraph 1(d): "(d) Coercively questioning employees about their union sympathies and activities , promising them ben- efits in order to discourage union activity , threaten- ing reprisals for engaging in union activities, or in any other manner interfering with , restraining, or coercing employees in the exercise of their rights un- der Section 7 of the Act." 2. Substitute the attached notice for that of the Administrative Law Judge. APPENDIX H NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had the chance to give evidence, it has been decided that we have vio- lated the National Labor Relations Act, and we have therefore been ordered to post this notice and com- ply with its terms. WE WILL, upon request, recognize and bargain collectively in good faith with United Steelwork- ers of America, AFL-CIO, as the exclusive rep- resentative of the employees in the following ap- propriate unit , with respect to rates of pay, wages, hours of employment, and other condi- tions of employment, and embody in a signed agreement any understanding reached. The bar- gaining unit is: All production and maintenance employees, including leadmen, truck drivers, janitors and plant clericals employed at Respondent's sev- en plants : 3910 Washington and 6422 Epper- son Street, Houston , Texas; San Antonio, Texas; Dallas, Texas; Lubbock, Texas; Tyler, Texas; and Shreveport, Louisiana ; excluding office clericals, draftsmen , inside and outside salesmen , watchmen , guards, professional em- ployees and supervisors as defined by the Act. WE WILL NOT directly or individually bargain with our employees in the appropriate bargain- ing unit. WE WILL NOT change wages , working condi- tions, or other terms of employment of our em- ployees in the appropriate bargaining unit with- out notifying the above-named Union, and giving it an opportunity to bargain collectively about such proposed changes; without preju- dice, however, to any wage increase or other bet- terment we have granted. WE WILL NOT coercively question employees about their or other employees' union sympa- thies and activities; nor shall we promise em- ployees benefits in order to discourage union ac- tivity; nor shall we threaten employees with reprisals for engaging in union activities; nor shall we in any other manner interfere with, re- strain, or coerce employees in the exercise of rights guaranteed in Section 7 of the National Labor Relations Act. WE WILL, upon unconditional application by any striker listed in Appendixes A through G attached to the Administrative Law Judge's De- cision , offer immediate and full reinstatement to MOSHER STEEL COMPANY 339 their former jobs or, if those jobs no longer exist, to substantially equivalent positions, and make them whole for any wages they may have suf- fered from 5 days after the strikers' uncondition- al request for reinstatement and to the date of our reinstatement or offer of reinstatement. MOSHER STEEL COMPANY DECISION SAMUEL M. SINGER, Administrative Law Judge: This case was heard before me in Fort Worth and Houston, Texas, on various dates between January 6 and 29, 1975, pursuant to charges as amended I and consolidated complaint dated December 6, 1974. That complaint alleges that Respondent violated Section 8(a)(1) and (5) of the National Labor Re- lations Act. All parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. All parties filed briefs. Upon the entire record and my observation of the testimonial demeanor of the witnesses, I make the follow- ing: FINDINGS AND CONCLUSIONS maintenance employees of all of those plants. After the Union's February 7, 1974, bargaining request, the parties held 18 or 19 bargaining sessions between March 6 and December 10, 1974. No agreement was reached. A strike, which commenced on July 22, 1974, is still in progress. The complaint alleges that at various times during the negotiations, beginning around May 1,2 Respondent un- lawfully interrogated employees concerning their union sympathies and activities, offered them benefits, and threatened them with reprisals in order to discourage union adherence, created the impression of surveillance of union activities, and solicited them to abandon the strike and withdraw from the Union. It further alleges that Respon- dent failed and refused to bargain with the Union by uni- laterally changing wages and working conditions, by indi- vidually and directly bargaining with employees, and by offering the Union a wage proposal for less than existing benefits. Finally, it is alleged that the July 22 strike was caused and prolonged by Respondent's unfair labor prac- tices. B. Alleged Interference, Restraint, and Coercion 1. Trinity Vice President Banks a. Group meetings 1. BUSINESS OF RESPONDENT ; LABOR ORGANIZATION INVOLVED Respondent, a Texas Corporation, fabricates steel at the seven plants here involved . During the past representative year, its purchases in interstate commerce (from points outside Texas) exceeded $50,000. I find that at all material times Respondent has been and is an employer engaged in commerce within the meaning of the Act and that assertion of jurisdiction here is proper. United Steelworkers of America, AFL-CIO (herein Steelworkers or Union), is a labor organization within the meaning of the Act. II. THE UNFAIR LABOR PRACTICES A. Background and Sequence of Events; the Issues Respondent Mosher, with headquarters in Houston, is a wholly owned subsidiary of Trinity Industries, Inc. (herein Trinity), headquartered in Dallas. During the period here involved, Milton Eliot was president and Ted Jones indus- trial relations director of Mosher. Trinity Vice President Ralph A. Banks serves, among other things, as labor rela- tions "consultant" for all Trinity subsidiaries . Banks testi- fied that none of the 25 plants in the Trinity complex oper- ates under union contract. Mosher employs 1,006 employees in the Mosher plants here involved-400 at Houston, 243 at Dallas, 238 at San Antonio, 52 at Lubbock, 11 at Tyler, and 62 at Shreveport (Louisiana). Based on an election held on August 30, 1973, the Regional Director on January 18, 1974, certified Steel- workers as statutory representative of the production and Filed June 28 and July 31, 1974. (i) The record shows that Banks conducted numerous meet- ings with employees during the period of negotiations and strike. Banks testified that he and Company President Eliot visited the Houston, San Antonio, and Lubbock plants in late May and early June and arranged to meet with groups of 15 to 20 employees to report to them on progress of the pending negotiations and to reassure them that they could continue to work during a strike. These meetings, lasting 10 to 25 minutes (apparently depending on the number of questions raised by employees), were also attended by plant supervisors and managers. According to Banks, he and Eliot spent 7 to 9 days in the three plants, telling all groups "basically" the same thing. (ii) Houston employee Parker recalled Banks telling his group that he "didn't think we needed a union . . . be- cause they could handle their own situation without a union." McQuarn (another Houston employee) testified that after Banks told the men that they did not need a union, he added that he was there to "help." Ward (also a Houston employee) quoted Banks as telling his group that the Union was interested only in "getting a contract and the union dues." Also according to Parker, Banks said that he now realized that "the employees had been neglected at Mosher" and the Company was "in the process of studying to try to straighten this out." On the question of wages-a prime employee concern expressed at the meetings-Banks said (also according to 2 All dates are 1974, unless otherwise indicated. 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Parker) that he had no "jurisdiction" over individual wage increases ; that Respondent "couldn't give a general in- crease" since that "would be an unfair labor practice"; and that it could nevertheless raise a particular employee's wag- es if below the top of the wage scale in his job classifica- tion. Employee McQuarn quoted Banks as telling his group that although "some" employees "could get [merit] raises," he "couldn't promise" anything "as long as the Union was there." Ward, another Houston employee , recalled Banks as saying that Respondent could not give the employees increases because of the pending negotiations . San Antonio employee Flores testified that Banks said there would be no raises because it could be construed as a "bribe." Another subject touched on by Banks involved the sign- ing of a collective agreement. Employees Parker and Mc- Quarn quoted Banks as telling their groups that he would "never" sign a contract with a dues checkoff because he "didn't feel like it would be fair to the men." Wallace (a Houston employee) recalled Banks telling his group that Respondent would not sign a collective agreement "be- cause of the language the Union wanted in it." According to Ward (also a Houston employee), Banks said that the Union had turned down a "decent" company offer; and that "every time they dust about get one issue settled, they jumped to something else." Finally, Banks addressed himself to strike "rumors," tell- ing groups of employees (as Parker, Wallace, and Ward testified) that he had been involved "in a lot of strikes but ... hadn't ever seen violence"; and that if the Union called a strike the plant would remain open and he "would like to have [the employees] all in to work." I credit the above-described employee testimony which, as Respondent recognizes, is "rather consistent." Indeed, Banks did not specifically deny that testimony.3 Banks conceded telling employees that Respondent had "real strong feelings" against a dues checkoff "since it is up to each and every man whether he wants to join a union" and it was for the Union (not Company) "to do their own bookkeeping." He also conceded stressing that "the gates would be open" in the event of a strike, assuring employees that they would have no "problems" reporting to work. Although telling them that he knew of no one "that was ever injured from a strike situation," he went on to say that Trinity Steel trucks now in use by Mosher do show "bullet holes . . . but there wasn't any drivers in those trucks when they were shot up." As to questions put to him at meet- ings-many concerning pay "inequities"-Banks testified that although he told employees to bring their complaints to the foremen, he admitted "possibly tell[ing] the foremen in general terms [about] some of the . . . complaints" and in some cases also to the plant manager. Finally, Banks testified credibly that his group discus- sions included appraisals of the respective positions of the parties in the pending negotiations-stressing the prohib- 3 I do not, however, credit employee Wallace's additional testimony that when Banks introduced himself to his group, he characterized himself as a "strike breaker" who "broke a lot of strikes" before and who "could whip anybody on the north side." Apart from Wallace's admission that he had difficulty hearing all of Banks' remarks, it is not likely that Banks, a sophis- ticated individual and no novice in labor relations, would have made the flagrant antiunion statement attributed to him itive nature of the Union's wage proposal and the Company's need to "remain competitive in order to keep [the employees'] jobs secure." He credibly testified that when he alluded to the possibility of loss of jobs in a strike he spoke in terms of "permanent replacements" and not discharges. b. Individual meetings Glenn Condley, a Shreveport employee, testified credi- bly that 2 weeks before the July 22 strike Banks "dropped by [his] work section" and asked him about "the working conditions and how [he] liked them." When Condley said he "wasn't making enough money"-only $3.05 an hour- Banks asked how much he thought he "should be making." When Condley said $3.50, Banks said "that didn't sound too bad." On the following Monday Condley got a 45-cent increase to $3.50 an hour. Respondent's records (Resp. Exh. 10-1) show a 45-cent "merit" increase for Condley on July 15. In May 1974, Banks approached San Antonio employee Vela in his work area, introduced himself, and asked "how it was going." When Vela complained that he had not re- ceived a "merit raise" for a long time, Banks asked whether he had talked to his supervisor about it. Two or three weeks later Vela's foreman informed him that he was get- ting a 28-cent hourly raise. Respondent's records (Resp. Exh. Ilc) shows a 29-cent "merit" increase for Vela on May 20.4 About a week before the July 22 strike, Banks ap- proached Shreveport employee Montgomery at work. Af- ter talking over Montgomery's "trouble" about insurance, the conversation turned to the Union. Banks said that Montgomery, a member of the union employee negotiating committee, had "80 percent of the men" behind him, that it would be Montgomery's "responsibility" if [the men] went out on strike," and that in that event Montgomery "would be blamed for it." Around July 3, San Antonio employee Flores talked to Banks about various benefits he was interested in, i.e., in- surance, loans out of the pension fund, and a wage in- crease. Banks told Flores that he "didn't have to go out on strike" merely because he signed a union card. On October 9, in the third month of the strike, Banks approached the Houston plant picket line and told the pickets, including employee Ernest Stewart, that he had more employees working in most of the plants than prior to the strike. Banks then said, "Why don't you-all boys throw the picket line down and go to work," adding that "we will treat you-all men fair and we will see that you-all get more money and better benefits." When Stewart asked whether 4 The findings in the above two paragraphs are based on credited testimo- ny of General Counsel witnesses Condley and Vela. Although claiming he told employees that he had "no jurisdiction whatsoever" to get them more money, Banks admitted that he "encourage[d]" both Condley and Vela to see their foremen about raises; and that he told Condley's foreman that Condley had been "complaining that he felt that he wasn 't being treated right." I do not credit the testimony of General Counsel witness Buruato, a San Antonio employee, that in an interview 2 or 3 weeks before the strike, Banks asked him what he could do "to change" his mind about the Union, after he (Buruato) revealed his strong prounion sentiments. Buruato's testi- mony is unbelievable. (See supra, fn 3 ) MOSHER STEEL COMPANY 341 he had yet signed the bargaining contract, Banks said "no"; that they had "agreed to some stuff" ; but that "as for the checkoff clause, we never will agree to that." To Banks' inquiry what the men expected to get out of the Union, Stewart said, "Better benefits" and a more sympa- thetic foreman." Banks replied, "A contract or a union wouldn't change nothing." When Stewart said, "If a union ain't no good . . . how come you are fighting it so hard," Banks just "walked off."5 how he was going to support his family? When Joe Esco- bedo (Roy's brother) told Malone that he "didn't know yet" whether he would participate in a strike, Malone stat- ed that if he was "scared" to go to work he or someone else would pick him up and bring him to the plant.8 To employ- ee White he said that "those that went out on strike could be replaced." When Malone asked employee Toliver whether he was "going to work or go out on picket," Toliv- er replied that he "would cross that bridge when [he] got to it."9 2. Lubbock Plant Superintendent R. A. Malone The record also shows systematic questioning of employ- ees by managerial and supervisory officials at Respondent's plants. Several Lubbock plant employees credibly testified that during the bargaining negotiations and prior to the July 22 strike Plant Superintendent Mal- one inquired about their complaints or "gripes" as to work- ing conditions and intentions to participate in a strike, if called. All testifying on this subject indicated that they were called into the company office-by Malone or his subordinate Shop Foreman Baker-and asked to state their complaints. When Roy Escobedo complained about lack of sick leave, Malone assured him that he "was work- ing on that." To employee White, who also talked "main- ly" about sick leave because of recurring back troubles, Malone said that the unit employees "would have" had sick leave (like the office workers) "if it wasn 't for the union." Employee Bell recalled that Malone brought up the subject of company picnics, indicating that the Compa- ny was "thinking about starting it back up again" since doing away with it in a 1967 United Steelworkers organiza- tional campaign . Malone also reminded Bell that Lubbock was the only Mosher plant where employees are "getting the hams at Christmas." Employee White could not recall a single instance in his almost 12 years with Mosher when he was called to the office to voice complaints. As to Malone's inquiries concerning employees' strike intentions and attitude, employee Robertson recalled that Malone had a clipboard in his hand and wrote "some- thing" on it as he left the work area where Malone ap- proached him. To Roy Escobedo he said that he "would lose all of [his] benefits" if he struck and asked Escobedo 5 The above findings are based on credited testimony of Montgomery, Flores, and Stewart . Banks did not specifically deny Stewart's testimony regarding Banks' appeal to the pickets to abandon the picket line; Banks stressed only his discussions concerning the status of the negotiations Al- luding to the Montgomery incident , Banks claimed to have told Montgom- ery, a negotiation committeeman , "I feel like that you are a responsible man and that when it comes down the line of having to make the proper decision .. you will fulfill the responsibilities of what you think is best for the men and their families and the Company and the community I think you will do a good job." As to Flores, Banks indicated that the major part of the discus- sion pertained to Flores' inquiry as to whether any of the Trinity plants were "union." Banks told him , "We don't have any [union] contracts anywhere in our Trinity organization or subsidiaries " When Flores asked, "How about your plant in Mexico," Banks answered that Trinity had only a "minority" interest there, that the "Mexican partners are totally responsible for the operation" there, and that "it could possibly be union." 6 Two employees who raised money problems (White and Bell) were told that they were scheduled to get individual (merit) wage increases, but the decision to give these appears to have been made before the interviews in question. 3. Shreveport Superintendent Carney and Foreman Tommy Johnson Credited evidence shows that Shop Superintendent Car- ney questioned two employees. About a month before the July 22 strike he called employee Gray to his office and asked why he liked the Union. When Gray answered that only the Union could get the employees the money they required, Carney indicated that he, not the Union, could do that. Carney then asked whether he was going to "go out" if the Union called a strike; Gray said he would. Car- ney commented that "a week or so" after the strike the men would receive a letter that "if we didn't report back to work on a certain date that we would be fired" but then quickly used the word "replaced." Employee L. D. Coleman testified credibly that on or about July 1 Carney asked him in the shipping office in the presence of two other employees (all three working under Carney's direction) if he knew "who started the Union." Coleman said he did not know. Carney then put the same question to one of the other two employees (Pratt). Employee Montgomery credibly testified and without contradiction that about a week before the strike (after the strike vote), Foreman Tommy Johnson approached him in his work area and asked "what did we figure we would gain by going out on strike." Montgomery replied "that is yet to be seen what might come out of it." Johnson went on to say that if they went on strike "the Company would mail us a letter and giving us so many days and after that we would be fired if we didn't come back to work."10 7 Although Escobtdo wore a union emblem on his shirt when accosted, he stated that he did not know whether he would go out on strike. 8 The above-described conversation took place 2 or 3 days after the strike vote 9 The above findings are based on credited testimony of employees. Mal- one did not dispute the remarks attributed to him in employee interviews concerning complaints and gripes. Although he claimed to have recorded the employees' "comments" and through his superior (Plant Manager Ken- dred) forwarded them to the Houston main office, these were not produced at the hearing, allegedly because no longer available. As to results of inter- views, Malone testified that Respondent rectified complaints "where we could take care of them" and if "we couldn't [Respondent would] see if we could do it at a later time." Malone denied posing any questions to employ- ees on their strike intentions and attitude, but his testimony on aspects of the strike (e.g, when he learned of the strike and whether he discussed with employees about operation of the plant during the strike) is vague and evasive I prefer to credit the testimony of General Counsel's employee witnesses, whose testimony was consistent in tenor and with the pattern of conduct directed by other managerial officials at other employees 10 Foreman Tommy Johnson was not called to contradict the statements attributed to him Montgomery acknowledged that the letter he ultimately received during the strike stated that he would be "replaced" if he failed to return by a specified date 342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4. Dallas Foreman Upchurch On Saturday before the strike, Foreman Upchurch ap- proached employee York in his department and asked if he was going to work on Monday, July 22, the day the strike was to start. When York said "no," Upchurch asked who was going to pay his bills-adding that "the plant has been real nice to you . . . ha[s] given you raises all along." Up- church also said, "If you don't like your work, why don't you quit." About a week before the strike, Upchurch asked employ- ee Rollings at his machine whether he "was going to go on strike." When Rollings said he "didn't know," Upchurch remarked, "Well, if you stick with the Company . . . I [Upchurch] will see that you [Rollings] will get to the "t 1 top. 5. San Antonio Foremen Nail and Perez On July 17, Foreman Nail approached employee Borre- go at his work station, told him about the individual (25 cents an hour) and general (6 percent) wage increases he was about to give him, 12 and then said that he knew that about 30 people in Dallas, 200 in Houston, and 30 in Tyler had voted for a strike. Nail did not indicate the source of his information.13 Nail also said that the plant gate would remain open during the strike, that police would be sta- tioned outside, and that he need not fear going to work. About a week before the strike, Foreman Perez told em- ployee Vela in the office where he went to get material) that he understood that 67 employees had attended the last union meeting. When Vela said that this was "correct," Perez remarked, "Well, that's a pretty good size number but about how many guys do you think are going to go on strike when the real thing comes to an end?" He went on to say that if they went on strike, "a lot of guys are going to be hurting . . . I know a few guys that used to go out on strike and they lost their . . . house" and cars. Vela re- marked, "I'll see what the consequences are after I go on strike." 14 6. Houston Shop Superintendent Kent Johnson and Foremen Sedlar, Goeke, and Leddy On May 16, Foreman Sedlar called employee McQuarn to his office and asked him what he thought was necessary "to satisfy the men." McQuarn said "better wages . . . and better benefits." Sedlar then asked if he would cross the 11 The above findings are based on credited testimony of York and Roll- ings. Upchurch did not dispute York's testimony. Although testifying on direct examination that he "couldn't have" spoken to Rollings about the strike on the Saturday referred to by Rollings, Upchurch conceded on cross- examination that he had such conversation with him "probably" closely before the strike, but claimed that he had merely told Rollings that "the gate was going to be open" if, as Rollings indicated , he wished to work. Rollings walked out and is still on strike. 12 Respondent's records show that these increases were put into effect on Jul 22 (Resp. Exh. I la, p 1) The strike votes in these plants took place on July 16 and 17, but the votes were markedly different (infra, fn. 31). 14 The foregoing findings are based on credited uncontradicted testimony of employees Borrego and Vela. picket line if a strike was called; McQuarn said "no."13 On May 23, Shop Superintendent Johnson similarly asked McQuarn what he thought would "satisfy" the em- ployees "and make Mosher a better place to work." Mc- Quarn told him "the same thing" he had told Sedlar. Dur- ing the conversation, Johnson said that the men "really don't need a union" and that "the sooner the Union is out of there it would be a better place for the men." About 3 weeks before the strike, Foreman Goeke walked up to employee Wallace and asked him if he was going out on strike. Wallace said that he did not know. A few days later, Goeke returned and said that if he went out on strike "it would be bad for [his] family . . . that [he] would have no paycheck coming in . . . that [he] would be better off if [he] would . . . come to work." In May, Foreman Leddy told employee Ward (who "happened" to be in Leddy's office), "Jimmy, it is none of my business, but if the Union calls a strike are you going to come in and work?" Ward replied, "I'm not going to cross the picket line." Also in May, Ward "heard that quite a few of the guys were getting raises" and asked Leddy for one. When Leddy said that he could not give him more than 3 cents an hour ("top rate" for his classification), Ward said that he would have to look for another job. About 2 or 3 weeks later- after getting the 3-cent increase-Ward threatened to quit unless he got more money. Within a week, Ward received a "promotion" with a 20-cent increase.16 On August 18-while the strike was on-employee Har- ris telephoned Leddy about a disability benefit claim of a fellow employee (Meyers). As he was getting ready to hang up, Leddy said that he had something else to talk about. Leddy said that he had talked to employee Page "about coming through the picket line" and that Page agreed to do that if Leddy could "get [Harris] to come in with him." Harris said that he went out on strike "for better benefits and . . . wasn't coming back without a contract."17 7. Union resignation letters Industrial Relations Director Jones testified that shortly after the strike commenced several employees who had crossed the picket line and their foreman walked up to him, told him that they "had heard that they could be fined for coming to work if they had signed a Union card," and asked "what are we going to do." Jones immediately con- tacted Company Attorney Lesh, who read to him a "little statement"; and took "the information" to Company Presi- dent Eliot who directed that Jones "better get a letter to all our troops, the other plant managers, and let them know what's happening." Thereafter a letter, dated August 9, signed by Eliot, was sent to the plant managers and personnel directors of all plants (Dallas, Houston, San Antonio, Shreveport, Lub- i5 McQuarn did walk out and was still on strike at the time of the hearing 6 Respondent's records (Resp. Exh 10J) show a 3-cent "merit" increase for Ward on May 13 and a 20-cent "promotion" increase on May 17 17 The findings in this section are based on credited uncontradicted testi- mony of employees McQuarn, Wallace, Ward, and Harris. As in the case of some other supervisors , those here involved (Sedlar, Johnson, Goeke, and Leddy) were unexplainedly not called to contradict General Counsel's wit- nesses MOSHER STEEL COMPANY 343 bock, and Tyler) telling them that the Union "has threat- ened all employees who came to work and who had previ- ously signed a membership card with fines if a contract is signed"; 18 that the Union can effectuate such threats un- less a card signer withdraws his membership ; and that they should advise "all those employees [then] working" that the following "statement," mailed to the Union by registered mail with return receipt requested, would effectively cancel their membership: I am an employee of Mosher Steel Company and ef- fective immediately I wish to cancel my membership in the United Steelworkers Union. Jones testified that he told the plant officials, "If the guys ask you for help, for goodness sake, tell them what they can do to resign from the Union" and be protected against fines. According to Jones, while the employees were to use the above-quoted resignation language , "under no circum- stances" were the managers to furnish them paper and stamps or mail the letters. The record contains numerous letters from employees to the Union withdrawing membership in language identical to the Company-prepared statement. 8. Conclusions I find that although many of the statements attributed to Respondent's officials constituted noncoercive and pro- tected speech,19 the credited evidence amply supports the complaint allegations that Respondent, through its mana- gerial and supervisory employees: (a) Questioned employees concerning their union sym- pathies and activities. Thus, Shreveport Shop Superinten- dent Carney asked employee Coleman if he knew "who started the Union." and Carney and other supervisors (Lubbock Plant Superintendent Malone, Dallas Foreman Upchurch, and Houston Foremen Sedlar, Goeke, and Led- dy) interrogated employees as to whether they were going to go out on strike or picket. Cf. W. A. Sheaffer Pen Com- pany, Division of Textron, Inc., 199 NLRB 242, 243 (1972); Farmer's Cooperative Compress, 169 NLRB 290, 292 (1968). (b) Promised employees benefits in order to discourage union activity. Thus, Dallas Foreman Upchurch told em- ployee Rollings that he "will get to the top" if he "stick[s] with the Company," after Rollings, in answer to Upchurch's inquiry, said he did not know whether he would go out on strike. (c) Threatened reprisals if employees engaged in union activity, Thus, Shreveport Foreman Johnson warned em- ployee Montgomery that the Company would notify strik- ers that they "would be fired" if they failed to return to 18 Union Representative Corley testified that no disciplinary action could have been taken , and presumably no threats of fines could have been ut- tered, since the Union's constitution provides for no sanctions against indi- viduals not yet members of an "established" local and no local was as yet in existence at Mosher. 19 E.g., Trinity Vice President Banks' statements to employees that they needed no union, that the Union was only interested in getting a contract, that the Union's positions in the negotiations were unreasonable , and that the plant would remain open and employees would have no "problem" working in the event of a strike. work by a specified date. And Vice President Banks point- edly told Montgomery, a negotiation committeeman, that he "would be blamed" for the strike, if one was called by the Union 20 (d) Solicited employees to abandon the strike and with- draw from the Union. Thus, Banks during the strike (Octo- ber 9) asked a group of pickets at the Houston plant to "throw the picket line down and go to work," promising them "fair" treatment and "more money and better bene- fits." Also during the strike (August 18) Houston Foreman Leddy appealed to employee Harris to cross the picket line and return to work, stating that another employee (Page) had agreed to do that if Harris did. Finally, shortly after the strike commenced, Respondent (through President Eli- ot and Industrial Relations Director Jones) prepared a let- ter of resignation from the Union to be used by "all those employees working" and crossing the picket line. This con- duct, considered in the light of its other coercive and inti- midatory action, constituted an intrusion into organiza- tional and protected concerted activity amounting to unlawful interference under Section 8(a)(1) of the Act. See Newberry Mills, Inc., 141 NLRB 1167, 1170, 1177 (1963); International Telephone and Telegraph Corporation v. N.L.R.B., 382 F.2d 366 (C.A. 3, 1967); N.L.R.B. v. Neider- man, 334 F.2d 601, 603 (C.A. 2, 1964). 21 I conclude that Respondent by the conduct described above interfered with, restrained, and coerced its employ- ees in the exercise of their rights guaranteed by Section 7 of the Act, thereby violating Section 8(a)(1) of the Act 22 C. Alleged Refusal To Bargain 1. Unilateral wage increases a. The facts The complaint alleges that Respondent has unlawfully refused to bargain by unilaterally, and without prior notice to and consultation with the Union (the exclusive bargain- ing representative of its employees), granting employees 201 agree with Respondent that statements such as Foreman Goeke's to employee Wallace that a strike would "be bad for [his] family" and that he "would be better off" working-or that of Banks to employees that they faced "permanent replacement" in a strike-constitute legitimate and "ac- curate reminder[s] of economic consequences of . . strike absence " (tlh- nois Bell Telephone Co, 179 NLRB 681, 684 (1969).) 21 Cases relied on by Respondent, such as North American Aviation, Inc, 163 NLRB 863 (1967), are distinguishable. As appears from the excerpt quoted in Respondent's brief, the "ministerial aid" there given by the em- ployer in effecting union withdrawal was not done in an "inhibiting set- ting" It is noteworthy that the solicitation of pickets to abandon the strike, attempted by Banks, a high managerial official, was accompanied by prom- ises of benefits 22 The record does not support the complaint allegation that Respondent "created the impression" of surveillance of.union activities General Coun- sel in his brief relies on two incidents wherein San Antonio Foremen Nail and Perez gave to employees Borrego and Vela the number of employees they thought had voted to strike or attended a union meeting (supra, sec. A,5) Since neither supervisor indicated the source of his knowledge, it was dust as reasonable for the employees to assume that the source was innocu- ous and lawful (e g, information voluntarily supplied by employees) as was forbidden and unlawful (i e., surveillance of union activities) Accordingly, the record does not warrant a finding of unlawful "creat[ion] of impression" of surveillance. Cf Trojan Steel Corporation, 180 NLRB 704, 705-706 (1970), The Permian Corporation, 189 NLRB 860, 866 (1971) 344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD wage increases-including individual "merit" increases and a general wage increase. The record establishes that Respondent has for several years prior to the January 8, 1974, certification of the Union granted its employees four types of wage raises: "progress" increases during the first 2 years of service (af- ter 60 days' probation) as the employee progresses within his job classification ; (b) "merit" increases after the employee's initial 2-year period for improved performance in his classification ; (c) "promotion" increases when moved to higher classifications; and (d) companywide "general" increases . An employee's eligibility for a pro- gress, promotion, or merit increase depends on management's evaluation of his performance and behavior and is not "automatic." Thus, Industrial Relations Direc- tor Jones testified that "productivity, quality," and atten- dance are among the factors considered. Dallas Plant Manager Harwell testified that "behavior, absenteeism ... attitude toward . . . job" are taken into account. There is "no set . . . policy" as to time or amount of in- creases; it may be given at any time-in 3 or 6 months or "never," depending on performance and job attitude. A "Merit Rating Report," periodically completed by the employee's foreman or supervisor, is used to evaluate an employee's eligibility for a merit, progress, or promotion increase. The record also shows that Respondent has granted "general" increases in the past 9 years. These, either 5 or 6 percent in amount, have been given once a year, in June or July, but sometimes in other months (March in 1967 and August in 1970). Vice President Banks testified that these increases, voted on by the board of directors are not, how- ever, a "guaranteed thing," i.e., they are given "as long as economics of the Company still permit." It is undisputed that during the period of negotiations (March-December 1974) Respondent granted one general and numerous individual (progress, promotion, and merit) wage increases without prior notice to or consultation with the Union. A 6-percent general increase, posted and an- nounced to employees on July 12, was made effective July 22. Banks, one of Respondent's representatives in the pending negotiations, testified that he did not notify the Union of the wage increase "[b]ecause it was a past prac- tice" and Respondent was under no legal obligation to give it advance notification. He admitted that the Company failed to make the 6-percent increase a part of its July 1 economic proposal to the Union. He also recalled that the Union's representative (Speight) had complained during the July 2 bargaining session that Respondent had not of- fered the Union "a damn cent." Although there is conflicting testimony as to the extent of "merit" wage discussions in the negotiations , it is undis- puted that the subject was raised in the May 16 bargaining session by the Union's then chief negotiator, Staff Repre- sentative Rabun. To Rabun's inquiry as to whether Re- spondent had a written document setting forth the Company's policy and practice on merit increases, the Company's negotiator, Attorney Lesh, responded that his "understanding was that that practice had not been re- duced to any form of writing as such." Rabun asked for, and was later furnished, a computer printout reflecting em- ployees' current rates to enable him to formulate a new wage proposal, but this printout did not reflect "merit" as distinguished from other wage increases23 Although Lesh first testified that Rabun stated at the May 16 meeting, "we know that you have been giving merit increases" and that Rabun "made no objection whatsoever to the giving of them," he later admitted that Rabun simply "didn't express any like or dislike for them." In any event, it is undisputed that when the Union's attorney (Dixie) entered the negotia- tions on July 24 he vigorously "question[ed] the legality" of the "unilateral" merit increases . Dixie expressed "surprise" that "a company like this" would give wage increases "while the bargaining was going on" and asked "how the parties could have reached a contract about wages .. . with the wage picture constantly changing behind the Union's back." The Company's position, as expressed by Lesh at the hearing, was that "this had become an estab- lished practice on the part of the Company as a result of which as long as the increase was within the limits of previ- ous increases in terms of time and amount that there was no duty to give prior notice and consultation with the Union."24 b. Conclusions In N.L.R.B. v. Katz, 369 U.S. 736 (1962), the Supreme Court held that unilateral changes in wages and working conditions, without prior consultation with the employees' bargaining representative, "must of necessity obstruct bar- gaining, contrary to the congressional policy" and is a vio- lation of Section 8(a)(5) of the Act, even "without also finding the employer guilty of overall subjective bad faith" (369 U.S. at 747). "It will rarely be justified by any reason of substance." (Ibid.) See also N.L.R.B. v. Crompton-High- land Mills, Inc., 337 U.S. 217, 223-225 (1949). This does not mean that the Union's consent is a sine qua non for effecting wage changes. It does mean that the Union must be afforded a meaningful opportunity to discuss and nego- tiate on the theory that joint participation through mutual consent may, in conformity with the overall statutory pur- pose, remove possible industrial strife . Cf. Fibreboard Paper Products Corporation v. N.L.R.B., 322 F.2d 411, 414 (C.A. D.C., 1963), affd. 379 U.S. 203 (1964). "[I]t is is a mistake to assume that where there has been such discussion and fair notice of the employer's intended actions, it is a viola- tion of the law to institute such changes without securing the agreement to the Union." N.L.R.B. v. Tex-Tan, Inc., 318 F.2d 472, 481-482 (C.A. 5, 1963). 23 Lesh testified that the merit increases to employees could be ascer- tained only by examining the individual files of the 1,100 unit employees. He further testified that he told Rabun at the May 16 meeting that he saw no reason why he needed the merit wage information to formulate a wage proposal. "Employment Cards," showing the wage history of numerous em- ployees. have been introduced in the record. (Resp. Exhs. 10 and 11; G C. Exh. 4.) Respondent's posthearing unopposed application to include the "Employment Record" of Robert L. Toliver in Resp. Exh. I I is hereby granted and admitted as Resp. Exh. 11-1. 24 Also in the July 24 meeting, Union Attorney Dixie asked Lesh to "tem- porarily discontinue" for 30 to 60 days the "merit" increases so as to enable the Union to formulate a wage proposal, but Lesh answered that "the mo- rale" in the plants was "bad enough without creating any more unrest by denying these guys increases when their work deserved it " MOSHER STEEL COMPANY The undisputed evidence shows that Respondent has unilaterally granted its employees a general wage increase on July 22 and numerous wage increases before and after that date-at a time when the Union was pressing it for an acceptable wage offer. Respondent announced its "across- the-board" increase on July 12, only 11 days after it sub- mitted its "economic" proposal without including the forthcoming general wage increase. Here, as in Crompton- Highland Mills, supra, the employer's action abruptly "cut off" the "infinite opportunities for bargaining that are in- herent in an announced readiness of an employer to in- crease generally the pay of its employees." (337 U.S. at 224.) Here, as there, the employer's unilateral wage action was "manifestly inconsistent with the principle of collective bargaining" (id. at 225). Respondent's contention that the wage increases were but continuations of a longstanding practice does not im- munize its conduct. To be sure, Respondent has granted one general wage increase every year for the past 9 years, but, as it admits, it has retained "discretion" of determin- ing the amount of increase (5 or 6 percent) and the time it was to take effect (June or July or other months). As to the individual increases (merit, progress, and promotion), the Company has retained discretion not only as to amounts and time but also as to whether it should be withheld- taking into account such factors as the employee's produc- tivity, attitude, and behavior. Applicable here is the Su- preme Court's Katz case, supra. There, as here, the employ- er unilaterally granted numerous merit increases of varying amounts. Also as here, the employer contended that its action was "in line with the company's long-standing prac- tice of granting [periodic] merit reviews . . . a mere contin- uation of the status quo." In rejecting this contention the Court said (369 U.S. at 746): Whatever might be the case as to so-called "merit rais- es" which are in fact simply automatic increases to which the employer has already committed himself, the raises here in question were in no sense automatic, but were informed by a large measure of discretion. There simply is no way in such case for a union to know whether or not there has been a substantial de- parture from past practice, and therefore the union may properly insist that the company negotiate as to the procedures and criteria for determining such in- creases. See also Armstrong Cork Co. v. N. L. R. B., 211 F.2d 843, 847 (C.A. 5); N.L.R.B. v. J. H. Allison & Co., 165 F.2d 766 (C.A. 6); Wald Manufacturing Company, 426 F.2d 1328, 1332-33 (C.A. 6, 1970).25 25 Relying on several Board and court cases, Respondent contends that its failure to grant the longstanding increases would have constituted an unfair labor practice. Some of these cases, however, are readily distinguishable. Thus, in A. H. Belo Corporation, 170 NLRB 1558 (1968), the Board's hold- ing that the employer's discontinuance of a longstanding policy to grant periodic wage increases was unlawful turned on a finding that the discontin- uance was discriminatorily motivated (170 NLRB at 1565). In upholding the Board's finding, the court noted that "it is readily apparent that the Compa- ny, during the negotiations , did digress from its practice of granting periodic wage increases, and did so only because of the intrusion of the union." 411 F.2d 959, 970 (C.A. 5, 1969). In General Motors Acceptance Corp, 196 NLRB 137(1972), affd. 476 F 2d 850 (C.A. 1, 1973), the Board's decision also turned on discriminatory motivation ("upon advent of the Union [Res- 345 Respondent's contention that the Union did not com- plain about its unilateral increases "for almost four months" after the negotiations commenced (March 6), even if true,26 is no valid defense. To begin with, Respon- dent continued to ignore the Union and granted extensive merit increases even after the Union's attorney (Dixie) ve- hemently protested its unilateral action at the July 24 meet- ing-the first he attended. Indeed, Respondent even reject- ed a union demand to temporarily suspend individual increases for 30 to 60 days in order to enable the Union to formulate a new wage proposal. In any event, inaction on the part of the Union is not tantamount to acquiescence or waiver. As stated in Armstrong Cork Co. v. N.L.R.B., 211 F.2d 843, 848 (C.A. 5): We further find no justification for [the Company's] action regarding the wage increases from the union's failure timely to object, or specifically to request bar- gaining on these issues, nor can we accept its excuse that the union would have rejected a similarly offered wage increase as inadequate. The statutory require- ment of good faith bargaining is not subject to waiver through action or inaction of parties to a labor contro- versy, and may not be satisfied by speculative assump- tions as to acceptance or refusal of an offer based on a party's attitude in prior negotiations. "[W]aiver of rights under the Act must be clearly estab- lished." N.L.R.B. v. Lloyd J. Taylor d/b/a/ Taylor Foundry Co., 338 F.2d 1003, 1003-04 (C.A. 5, 1964). Nor is there any merit in Respondent's further conten- tion that it was at all times willing to confer with the Union about the particular wage action it had already taken. The gravamen of the violation here is Respondent's failure to give the Union advance notice of contemplated wage ac- tion-a mandatory subject of bargaining. "Save in special circumstances not present here, the bargaining philosophy of the Act requires that good-faith negotiations precede rather than follow changes in bargainable conditions of pondent] suspended merit increases which it would otherwise have given to its employees"). Similarly, in J. J. Newberry, 183 NLRB 602 (1970), it was held that the -increases were "suspended because of the union's campaign". Moreover, it was noted that that case involved a union not yet selected as majonty representative and therefore one with which the employer was not yet "under a duty to bargain" (183 NLRB at 605). In Udylite Corporation, 183 NLRB 163, 170 (1970), affd. on this point 455 F.2d 1357 (C.A.D.C., 1971), the Board's 8(a)(1) and (3) findings were likewise predicated on the ground that the withholding of ment increases was discnminatonly motivat- ed. To be sure, there is language in other cases cited by Respondent, suppor- tive of its view that the discontinuance of a longstanding wage practice constitutes an unlawful change in terms and conditions of employment As able counsel for Respondent points out, the First Circuit Court in General Motors Acceptance Corp, supra, 476 F 2d at 854-55, so indicated-although it affirmed the Board's finding that the discontinuance was unlawful be- cause it was "in reprisal for the unionization ... and for the purpose of eliminating the Union " The Second Circuit Court was even more definitive in N L R.B v. Patent Trader, Inc, 415 F 2d 190 (1969) and 426 F.2d 791 (1970), where, in reversing a Board finding that the unilateral wage increases were unlawful (167 NLRB 842, 851, 853), it observed that "it is difficult to see how continuance of a wage increase policy which the employees would otherwise expect can be viewed to obstruct bargaining negotiations merely because it continues, as before, during those negotiations" (415 F.2d at 200). In my view, these pronouncements and decisions are contrary to the over- whelming weight of authority. In any event, I am necessarily bound by Board decisions. 26 Union Representative Rabun claimed otherwise 346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment." Central Illinois Public Service Company, 139 NLRB 1407, 1417 ( 1962), enfd. 324 F.2d 916 (C.A. 7, 1963). Clearly, talking about a decision after it is a fait accompli is not the same as bargaining about it. See also Granite City Steel Co., 167 NLRB 310, 316 (1967). I conclude that Respondent's unilateral wage increases to employees-general and individual-constituted unila- teral changes in employment conditions and, hence , refus- als to bargain collectively within the meaning of Section 8(a)(5) and (1) of the Act. 2. Dealings with employees a. The facts The complaint alleges that Respondent has also refused and failed to bargain with the Union by "directly and indi- vidually" dealing with employees concerning wages and working conditions. As already shown (sec. B I through 6), the record is replete with instances where managerial and supervisory officials have questioned employees about their "gripes" and complaints. In some cases, the discus- sions resulted in corrections , i.e., improved wages and working conditions. Thus, Vice President Banks' group meetings in late May and early June (in which he told at least one gathering that he was aware that "the employees had been neglected," that he was there to "help," and was trying "to straighten ... out" problems) were followed by individual meetings between supervisors and employees . Banks himself asked Shreveport employee Condley in one such individual meet- ing (supra, sec. B,1,b.) how he "liked" his working condi- tions. When Condley said he "wasn't making enough mon- ey," Banks asked how much he thought he "should be making." When Condley mentioned a figure 45 cents above his pay rate, Banks said that this "didn't sound too bad" and within a matter of days Condley got the 45-cent increase. Banks had a similar discussion with San Antonio employee Vela, who, like Condley, was given a "merit" increase shortly after complaining to Banks . Although de- nying that he issued any "instructions" to supervisors to give these employees any increases, Banks admitted that he "encourage[d]" both Condley and Vela to see their fore- men about raises and that he relayed Condley's complaint to his (Condley's) foreman. Another incident involving Banks is his October 19 dis- cussion with a group of employees at the Houston picket line (supra, sec. A,l,b.). In appealing to the pickets to "throw the picket line down and go to work," Banks prom- ised them "fair" treatment and "more money and better benefits." The record shows that Lubbock Plant Superintendent Malone had discussions with at least three employees con- cerning working conditions-after all three were called to his office to voice complaints (supra, sec. B,2). Thus, he discussed sick leave with employees White and Roy Esco- bedo, telling the latter that he "was working on that" prob- lem. To employee Bell, he stated that the Company would resume holding the picnics they had done away with in an earlier organizational campaign . Malone conceded that the Company rectified complaints "where we could take care of them" and if "we couldn't [Respondent would ] see if we can do it at a later time." Other credited evidence showing discussions with em- ployees concerning working conditions includes inquiries of Houston Foreman Sedlar and Superintendent Johnson to employee McQuarn what he thought was necessary "to satisfy the men"; McQuarn told them "better wages .. . and better benefits" (supra, B,6). Another foreman, Leddy, discussed employee Ward's request for a wage increase. When Leddy said he could not give him more than 3 cents an hour, Ward threatened to quit . Shortly afterward Ward was given a 20-cent "promotion" increase (supra, B,6). b. Conclusions Section 9(a) of the Act states that the majority represen- tative of employees in the appropriate unit shall be the "exclusive representative" of employees in such unit for purposes of collective bargaining. "The obligation [to bar- gain with the chosen representative] being exclusive . . . it exacts `the negative duty to treat with no other.' " Medo Photo Corp. v. N.L.R.B., 321 U.S. 678, 683-84 Banks' and other managerial officials' discussions with employees con- cerning wages and working conditions, mandatory subjects of bargaining, were in plain violation of Section 8(a)(5), for "[t]he Act not only protects the employees from the direct economic effect of the employer's unilateral action, but also forbids the bypassing of the collective bargaining agent, for this would undermine the union's authority by disregarding its status as the representative of the employ- ees." Leeds & Northrup Co. v. N.L.R.B., 391 F.2d 874, 877 (C.A. 3, 1968). Accord: N.L.R.B. v. Tulsa Sheet Metal Works, Inc., 367 F.2d 55, 59-60 (C.A. 10, 1966); N.L.R.B. v. Union Mfg. Co., 179 F.2d 511, 512-513 (C.A. 5); N. L. N.L.R.B. v. U. S. Sonics Corp., 312 F.2d 610, 615 (C.A. 1, 1963).27 27 Cases relied on by Respondent, such as Uarco, Incorporated, 216 NLRB No. 2 (1974), and Sears Roebuck & Co., 182 NLRB 491 (1970), pose the issue, not here under consideration, whether solicitation of employees in an organizational drive-constitute interference with organizational rights viola- tive of Sec. 8(a)(l) of the Act As Respondent properly points out, among the factors to be considered in determining this question are the employer's motive for the solicitation and existence of past practice in ascertaining grievances. However, these factors are irrelevant in determining the issue here-i.e., whether the solicitations and accompanying exchange between employee and employer representative constitute individual dealings. Where, as here, a majority representative has been chosen by employees, it is incumbent upon the employer to negotiate with that representative con- cerning proposed or intended changes in working conditions and wages- irrespective of the employer's past practice or his motive for seeking out employees. In any event, one of the prime factors in determining whether a grievance solicitation is unlawful under Sec. 8(a)(I) is whether the employee had been assured, led to believe, or promised (expressly or impliedly) that his grievance would be corrected. That employees here questioned had good reason to believe that their grievances would be corrected is evident from Banks' assurances, even before the individual solicitations, that he was there to "help" and "straighten ... out" problems, by the fact that complaints about wages were usually followed by increases, and by express promises of corrections as in Banks' assurances to pickets that they would be getting "more money and better benefits" on returning to work and in Plant Super- intendent Malone's statement to Roy Escobedo that he "was working" on his complaint about sick leave MOSHER STEEL COMPANY 3. The alleged unilateral change in rest periods a. The facts The complaint alleges that Respondent also unlawfully refused to bargain by unilaterally, and without consulta- tion with the Union, promulgating and implementing in June 1974 "written rules regulating work breaks and rest periods" for unit employees. This allegation is predicated on the testimony of employee C. H. Jones to the effect that in March or April 1973 Respondent changed its break poli- cy from two 10-minute to two 5-minute rest periods on his day shift; and that at the end of May or early June "it went ... again back to 10 minutes ." Jones identified a June 4, 1974, notice, entitled "Shop Rest Periods" which states that "In order to clarify the present, apparent confusion regard- ing shop rest periods (breaks), the procedure outlined be- low will be followed effective June 10, 1974." The notice then specifies two 10-minute breaks for every 8-hour shift. Plate Division Superintendent Oglesby , Jones' supervi- sor, testified that the break periods before and after June were the "same"-two 10-minute breaks prior to June 1974; and that the only change wrought by the June 4, 1974, notice was that it set one uniform and fixed rest peri- od for all employees "instead of having it scattered over a long period of time" (i.e., varying 10-minute breaks select- ed by employees between 8:30 and 9 :30 a.m.). I credit the testimony of Oglesby, who impressed me as a more reliable witness than Jones. As Oglesby testified, it was physically impossible for Jones , a crane operator, to confine his break to 5 minutes prior to June 1974.28 And while steadfastly adhering to the existence of the pre-June 5-minute break rule, he admitted that "a lot of people were taking a 10-minute break." Also noteworthy is that not one other employee among the numerous ones called by Gen- eral Counsel testified to the existence of the alleged 5-min- ute rule. b. Conclusion I find and conclude that the complaint allegation that Respondent unilaterally promulgated and implemented a change in breaks or rest periods, in violation of Section 8(a)(5) of the Act, is not supported by credited evidence. 4. The company wage proposal a. The facts The complaint further alleges that Respondent 's refusal to bargain is evidenced by its offer to the Union of a wage proposal "which provided for terms and conditions of em- ployment less than that existing at the time the proposal was made." In support of this allegation General Counsel submitted a document (G.C. Exh. 40), prepared by a Hous- 28 Oglesby explained : "If [Jones] was up in the crane and this is his job, [the] time he would go down to the column where he could come down the ladder and walk to the machine, get whatever he was going to have, a soda water, Fritos or something, he couldn't even walk back and get up in the crane, let alone eat . . . what he had bought." 347 ton employee (Mikeska, a welder now on strike) from com- puter printouts (showing employee wage rates) and Respondent's contract proposal, purporting to show that certain employees were making more than the proposed top rates in their classifications. Mikeska admitted that his comparison covers only a select group-employees (strik- ers and nonstrikers) he happens to know personally. Industrial Relations Director Jones, who prepared Respondent's wage proposal, satisfactorily showed that some of Mikeska's comparisons are misleading or errone- ous because Mikeska had placed employees in wrong clas- sifications. Thus, employee Robert Olbrych, whom Mikes- ka classifies as "plant clerk-senior," earning $4.46 an hour and falling within Respondent's proposed $3.21-$3.70 pay range, is in fact a "shop office manager." As to employee James Grant, whom Mikeska correctly shows as a "Grade 4 warehouseman" falling within a proposed $2.55-$3.20 wage range, the fact is that Grant was at one time in a higher classification but was moved to the lower paying job (Grade 4 warehouseman) because he had "some difficulty in the department"-without, however, requiring him to take a reduction in his $3.43 hourly pay. As to other em- ployees, such as Cykala (a Class B fabricator) and Lampe (painthouseman), for whom Mikeska shows 7 and 9 cents over Respondent's proposed top wage rates, those employ- ees had been making several cents above the established top rates even before Respondent's wage proposal submis- sion.29 As to the several pennies (1 to 3 cents) above the proposed company top rates shown by Mikeska for other employees, the record shows that these minor discrepancies are the result of Jones' practice of rounding out rate ranges-i.e., an employee earning $2 in a price range with a $2.10 top rate will be shown to have the $2.10 top rate even though he is being paid $2.12 after receiving a 6-per- cent (12-cent) general wage increase. b. Conclusion I find and conclude that the record does not support the complaint allegation that Respondent violated Section 8(a)(5) of the Act by offering "terms and conditions of employment" (specifically wage rates) less than those ex- isting at the time of making such offer. D. The Strike As already noted, the Union commenced to strike Respondent's plants on July 22. The complaint alleges that the strike was caused or prolonged by Respondent's unfair labor practices. The record establishes that employees in each of the sev- en plants held a meeting prior to the strike;30 that union representatives at each reported on the negotiations and discussed with employees what they regarded to be Com- 29 Jones explained that "the only way" employees like Cykala and Lampe, not promoted to higher -paid classifications because not found meritorious, "can get raises is through a general [increase]", that "these two men haven't had a merit increase in many years", and that they began to exceed the top wage rates when their accumulated (annual) 5- or 6-percent wage increases put them over and beyond the top rates. 30 July 15 at Lubbock; July 16 at Houston, Dallas, and Shreveport; and July 17 at San Antonio and Tyler. Houston houses two plants. 348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany "unfair labor practices"; and that at the end of each meeting a motion was carried byan overwhelming majority to authorize a strike.31 Thus, the testimony of Union Rep- resentative Corley, who conducted the meeting at Houston, shows that he "explained" to the assembled employees "what 8(a)(1)'s and 8(a)(5) meant" in the unfair labor prac- tice charges previously filed (June 28) by the Union. Corley complained about the Company's "sham bargain- ing"-pointing to the "liberal wage increases" it had been giving employees while unwilling to discuss or yield on eco- nomic issues in the negotiations ; referred to the 6-percent "across-the-board" wage raise recently posted by Respon- dent (July 12) "without consultation with the Union"; and "reminded" them of the meetings held by President Eliot and Vice President Banks with employees at Houston and other plants and "group meetings" between foremen and employees which the Union regarded as unfair, coercive, and intimidatory. Also discussed were the respective posi- tions of the Union and Respondent in the negotiations and the employees' dissatisfaction with existing company bene- fits (e.g., pension, insurance, sick leave). Finally, one of the other union representatives present (Ray) "explained the difference between an unfair labor practice strike and an economic strike." The record shows that the Union's other representatives covered much of the same ground at the other plants- including the individual ("merit") and general 6-percent wage increases granted employees during the negotiations, the "interrogating" of employees by supervisors, other mat- ters they regarded as unfair labor practices (e.g., Respondent's refusal to budge on checkoffs and the alleged unilateral change in breaks or rest periods ); and the pro- gress, or lack of progress, in the negotiations. 2. Conclusion It is well settled that a strike caused in whole, or in part, by an employer's unfair labor practices is an unfair labor practice strike and the strikers are entitled to reinstatement upon application, even if to do so requires the employer to discharge the strikers' replacements. Mastro Plastics Corp. v. N. L. R. B., 350 U.S. 270, 278 (1956); N. L. R. B. v. Safeway Steel Scaffolds Company, 383 F.2d 273, 280-281 (C.A. 5, 1967). There is no doubt in this case , and I find, that the strike was from its inception on July 22, 1974, an unfair labor practice strike, caused, among other things, by com- pany conduct herein found unlawful-unilateral wage in- creases ("merit" and "general"), direct dealings with em- ployees, and interference, restraint, and coercion . The fact that the strike may have been motivated , in part, by eco- nomic objectives, does not prevent it from being an unfair labor practice strike, so long as Respondent's unlawful conduct was a substantial contributory cause . Safeway Steel Scaffolds Co., supra, 383 F.2d at 280-81; San Antonio Machine & Supply Corporation, 363 F.2d 633, 641 (C.A. 5, 1966); N.L.R.B. v. Louisville Chair Company, Inc., 385 F.2d 922, 929 (C.A. 6, 1967). 31 By a 176-to-1 vote at Houston, 160-to-0 at San Antonio, 43-to-2 at Dallas, 41-to-1 I at Shreveport, 6-to-2 at Tyler, and the "unanimous" vote of the 15 or 20 employees present at Lubbock. CONCLUSIONS OF LAW .1. Respondent is an employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All production and maintenance employees, including leadmen, truckdrivers, janitors and plant clericals em- ployed at Respondent's seven plants: 3910 Washing- ton and 6422 Epperson Street, Houston, Texas; San Antonio, Texas; Dallas, Texas; Lubbock, Texas; Tyl- er, Texas, and Shreveport, Louisiana, excluding office clericals, draftsmen, inside and outside salesmen, watchmen, guards, professional employees and super- visors as defined by the Act. 4. At all times material herein, the Union has been the exclusive bargaining representative of the employees in the aforesaid unit within the meaning of Section 9(a) of the Act. 5. By unilaterally granting wage increases, without prior consultation and bargaining with the Union, and by direct- ly and individually dealing with employees concerning wages and working conditions, Respondent has engaged in and is engaging in unfair labor practices within the mean- ing of Section 8(a)(5) and (1) of the Act. 6. Respondent has not violated Section 8(a)(5) and (1) of the Act by unilaterally changing breaks or rest periods; nor by offering a wage proposal providing for less than existing benefits. 7. Respondent has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act, in violation of Section 8(a)(1) of the Act, by coercively questioning employees about their union sympathies and activities; by promising them benefits in order to discourage union activity; by threatening them with reprisals for engaging in such activity; and by encour- aging and soliciting employees to abandon their strike and withdraw from the Union. 8. Respondent has not violated Section 8(a)(1) of the Act by conveying the impression of surveillance of union activities. 9. The strike, which commenced on July 22, 1974, was caused and prolonged by Respondent's unfair labor prac- tices, and hence was and is an unfair labor practice strike. 10. The unfair labor practices described above in para- graphs 5 and 7 affect commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Respondent, having engaged in unfair labor practices within the meaning of Section 8(a)(1) and (5) of the Act, should be required to cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. Such affirmative action will include a requirement that, upon request, Respondent recognize and bargain col- lectively with the Union as the exclusive representative of MOSHER STEEL COMPANY all its employees in the appropriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employment, and, if an understanding is reached, em- body such understanding in a signed agreement. Respondent should also be required to offer, upon un- conditional application, reinstatement to all strikers named in Appendixes A through C [omitted from publication] to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or other rights and privileges, discharging, if nec- essary, any replacements in order to provide work for the strikers,32 and to make whole all said strikers for any loss of earnings they may have suffered by reason of the discrimi- nation against them , by payment to each of a sum of mon- ey equal to that which each normally would have earned as wages from 5 days after the strikers' unconditional request for reinstatement to the date of their reinstatement or Respondent's offer of reinstatement , less the net earnings of each during such period, to be computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294 (1950). Inter- est shall be added at the rate of 6 percent per annum. his Plumbing & Heating Co., 138 NLRB 716 (1962). In view of the nature of the unfair labor practices com- mitted Respondent should also be required to cease and desist from infringing in any manner upon the rights guar- anteed in Section 7 of the Act. Upon the basis of the foregoing findings of fact and con- clusions of law and upon the entire record , and pursuant to Section 10(c) of the Act , I hereby issue the following: ORDER 33 Mosher Steel Company, Shreveport, Louisiana, and Houston, San Antonio, Dallas, and Lubbock, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize and bargain collectively in good faith with United Steelworkers of America, AFL- CIO, as the exclusive bargaining representative of all the employees in the appropriate unit set forth in paragraph 3 of the Conclusions of Law herein with respect to rates of pay, hours of employment, and other terms and conditions of employment. (b) Directly or individually bargaining with its employ- ees in the appropriate unit. (c) Changing wages, working conditions , or other terms of employment of its employees in the appropriate unit 32 The record does not disclose whether any strikers have as yet applied for reinstatement . This, of course, is a matter determinable in the compli- ance proceeding. 33 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 which follows herein shall, as provid- ed 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. 349 without notifying the Union and giving it an_ opportunity to bargain collectively about such proposed changes, with- out prejudice however, to any economic benefit or better- ment heretofore granted. (d) Coercively questioning employees about their union sympathies and activities, promising them benefits in order to discourage union activity, threatening reprisals for en- gaging in union activities, encouraging or soliciting em- ployees to abandon strike activity and withdraw from their union, or in any other manner interfering with, restraining, or coercing employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action, necessary to effectuate the policies of the Act: (a) Upon request, recognize and bargain collectively in good faith with United Steelworkers of America, AFL- CIO, as the exclusive representative of the employees in the above-described unit with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment, and embody in a signed agreement any un- derstanding reached. (b) Offer, upon unconditional application, to all strikers listed in Appendixes A through G [omitted from publica- tion] immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay each may have suffered in the manner set forth in "The Remedy" section of this Decision of which this Order is a part. (c) Preserve and upon request, make available to the Board or its agents, for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records of backpay due under the terms of this Order. (d) Post at its seven plants 34 copies of the attached no- tice marked "Appendix H."35 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's authorized repre- sentative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken by Respondent to in- sure that said notices are not altered, defaced, or covered by any other material. (e) Notify said Regional Director, in writing, within 20 days from the date of this Order, what steps have been taken to comply therewith. IT IS FURTHER ORDERED that the complaint be dismissed in all other respects. 34 3910 Washington and 6422 Epperson Street, Houston, Texas, San An- tonio, Texas; Dallas, Texas; Lubbock, Texas, Tyler, Texas; and Shreveport, Louisiana. 35 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 "