Grand Lodge of Free and Accepted Masons, Masonic Home

GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME 75 Grand Lodge of Free and Accepted Masons, Masonic Home and Local No. 1511 and Council No. 55, American Federation of State, County and Munici- pal Employees, AFL-CIO. Cases 7-CA-8158 and 7-CA-10030 November 25, 1974 DECISION AND ORDER .,BY MEMBERS FANNING, JENKINS, AND PENELLO On May 22, 1974, Administrative Law Judge Thomas F. Maher issued the attached Decision in this proceeding. Thereafter, Respondent filed exceptions and a supporting brief. The Charging Party filed a brief in answer to Respondent's exceptions and in support of the Administrative Law Judge's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the 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 Respondent, Grand Lodge of Free and Accepted Ma- sons, Masonic Home, Alma, Michigan, it officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. ' 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 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings DECISION STATEMENT OF THE CASE THOMAS F. MAHER, Administrative Law Judge- Upon charges filed on August 22, 1970, in Case 7-CA-8158 and on January 3, 1973, in Case 7-CA-10030, against Grand Lodge of Free and Accepted Masons, Masonic Home, Respondent herein and frequently referred to as "the Home," by Local No. 1151 and Council No. 55, American Federation of State, County and Municipal Employees, AFL-CIO, herein called the Union, the Regional Director for Region 7 of the Na- tional Labor Relations Board, herein called the Board, issued a consolidated complaint on behalf of the General Counsel of the Board, against the Respondent on July 25, 1973, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called the Act In its duly filed answer, Respond- ent, while admitting certain allegations of the complaint, de- nied the Board's jurisdiction in the matter and the commis- sion of any unfair labor practice. In addition to the aforementioned documents there has been considerable procedural activity in this matter. It is set forth in detail hereafter in sec. III, A, infra. Pursuant to notice a hearing was held before me on various dates between October 16, 1973, and January 24, 1974, in Ithaca, Michigan, and Detroit, Michigan, where all parties were present, represented and afforded full opportunity to be heard, to call, examine and cross-examine witnesses, to make oral argument and file briefs Briefs were filed by all parties on March 18, 1974. Upon consideration of the entire record, including the briefs filed with me, and specifically upon my observation of each witness appearing before me and a consideration of his demeanor,' I make the following: FINDINGS OF FACT AND CONCLUSIONS OF LAW I THE NATURE OF RESPONDENTS OPERATIONS Grand Lodge of Free and Accepted Masons, Masonic Home, Respondent herein, is a nonprofit fraternal charitable organization incorporated in the State of Michigan in 1926. It owns and operates a home for the aged which also includes a nursing home and a hospital providing basic care, intensive care, and intermediate care to its residents and patients who are members of the fraternal organization or members of their immediate families. On an annual basis, during the 1970 period involved in this proceeding, Respondent purchased in excess of $50,000 worth of goods and materials, which goods and materials are either sent directly to Respondent's facility from outside the State of Michigan or are purchased from companies in Michigan who in turn directly purchase such goods and receive them from outside the State of Michigan. During the same 1970 period Respondent received gross revenues in excess of $100,000.2 It is Respondent's contention that by the provisions of Section 2(2) of the Act it is exempt from the jurisdiction of the Board, it being a nonprofit hospital. There is no dispute that Respondent operates a nursing home and a home for the aged. This is the subject of stipula- tion and was amplified by the testimony of Norman Ryburn, administrator of the Home. Whether it operates a hospital in conjunction with its facility is another matter. At the hearing held before me on October 16, 1973, Ryburn testified that the Home was not licensed as a hospital under the State's provi- sions for the licensing of hospitals. And with respect to the facilities available at the Home in this area Ryburn testified that there was no major operating room but a facility for minor operations such as suturing cuts, tending bruises, and checking broken skin. Such operations as those for appendici- ' Cf Bishop and Malco, Inc., d/b/a Walker's, 159 NLRB 1159, 1160 (1966). 2 The foregoing facts were the result of a stipulation between the parties 215 NLRB No. 24 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tis and for the pinning of broken hips were not handled at the Home but instead, by an existing transfer agreement, the patient was transferred to the Gratiot County Hospital, si- tuated adjacent to the Home but not in any way associated with it. The Home has no X-ray facilities, relying on Gratiot for such services, but it does have facilities for taking elec- trocardiograms. Physical therapy facilities are provided for the patients as are therapeutic and rehabilitation services. There is a staff of five registered nurses and a number of licensed practical nurses in addition to the usual staff of workers and orderlies. The medical staff consists of 1 full- time physician, interns from a medical school in the State, and 30 outside physicians available on call to treat specific individual patients. Technically, Ryburn testified, all the doc- tors in Gratiot County Hospital are on Home's staff. At a subsequent hearing before me in this matter in Janu- ary 1974 Respondent adduced further testimony on the sub- ject of the nature of its facility, this time to establish that since the October 1973 hearing it had filed application for a hospi- tal license. This so-called hospital section for which a license is presently being sought comprises 30 beds of Home's total capacity of 409. Because certain of the activity involved in this proceeding occurred, at a time when there was considerable question concerning the Board's jurisdiction over facilities such as Respondent's, it is to be noted that at the outset of 1967 the Board, in' University Nursing Home, Inc., 168 NLRB 263 (1967), decided to assert its jurisdiction over proprietary as distinguished from nonprofit nursing homes and related facilities which provide skilled nursing health care and con- valescent services where the employer received gross reve- nues in excess of $100,000 per year. Thereafter in Drexel Home, Inc., 182 NLRB 1045 (1970), the Board extended its jurisdictional coverage to nonprofit nursing homes and related health care facilities. In that case, as in the instant one, the employer sought to characterize itself as something other than a home for the aged, citing the fact that it provided health care facilities and performed supplementary hospital functions. Thus the Board, interpreting its early decision in University Nursing (supra), stated (182 NLRB at 1046): A reading of University Nursing, including both au- thoritative sources and the statistics cited therein, clearly shows, contrary to the Employer, that our conclusions therein were predicated on considerations which extend to and encompassed "proprietary nursing homes and related facilities . . . in this health-care field," and that, in addition to nursing homes, jurisdiction also was as- serted over such "related facilities." (Emphasis sup- plied.) Without belaboring the point, we note for clarifi- cation purposes that a home for the aged is such a "related facility" within the authoritative, medical, and officially recognized meaning of the all-inclusive term "nursing home and related facilities." Moreover, the ti- tle by which an institution may be designated does not necessarily indicate its true function or clearly describe its operation. The present Employer, for example, is ostensibly a "home for the aged." [Footnote omitted.] Nor is it of consequence that Respondent's facility may, in fact, have a separate facility, small though it may be, which is designated as a hospital facility, and for which a hospital license has recently been sought. A review of the factual description of this unit discloses that it is not intended to be a substitute for the nearby Gratiot County Hospital, that it lacks many of the basic essentials of a usual hospital, such as a major operating room, X-ray equipment, and testing facili- ties. This unit is admittedly coordinated with the rest of the Home, has the same director, has an interchange of profes- sional and custodial staffs, and utilizes the same physical plant and maintenance facilities. Under such circumstances even if, contrary to the facts, this were to be considered a hospital and not an extended care facility of the nursing home, there is such a high degree of functional and opera- tional integration between the so-called hospital unit and the rest of the Home and health care facility as to make it a part of the integral operation. So the Board held in Parkvue Medi- cal Center and General Hospital, 183 NLRB 559 (1970), a case with features of integration similar to those herein. Upon all of the foregoing therefore, I conclude and find Respondent to be an employer engaged in commerce within the meaning of the Act. II THE LABOR ORGANIZATIONS INVOLVED Local No. 1511 and Council No. 35, American Federation of State, County and Municipal Employees, AFL-CIO, the Charging Parties herein , and collectively referred to hereafter as the Union, are admitted to be and I accordingly conclude and find them to be labor organizations within the meaning of Section 2(5) of the Act. III THE UNFAIR LABOR PRACTICES A. The Procedural Sequence of the Case Respondent and the Union were parties to a collective- bargaining agreement which expired on December 31, 1969. Negotiations for a new contract ensued during late 1969 and early 1970 but proved unsuccessful. Accordingly the em- ployees went on strike in support of their Union bargaining position for a new contract on February 5, 1970. Thereafter, on February 26, the Union filed unfair labor practice charges against the Respondent with the Board in Case 7-CA-7768, and thereafter on February 16, withdrew these charges, it appearing that at the time Respondent was not deemed to be an employer over whom the Board was pre- sently asserting its jurisdiction. At the same time refusal to bargain charges were filed with the Michigan Empk yment Relations Commission, referred to herein as MERC. Then, on April 21, Respondent filed a charge with MERC against the Union alleging that the strike was illegal under Michigan Law. At the hearing held by MERC in both cases MERC, on motion by the Union, dismissed both cases on the ground of lack of jurisdiction; charges were thereafter filed with the Board against' Respondent on August 21, 1970, in 7-CA-8158, one of the instant consolidated cases, and on August 27, 1970, a charge was filed against the Union in Case 7-CB-2241. The Regional Director refused to issue a com- plaint in this latter matter and upon appeal to the General Counsel by the Respondent herein the Regional Director's refusal was upheld. Meanwhile on November 16, 1970, the complaint issued in -Case 7-CA-8158 . Respondent and GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME Union finally executed a contract on December 1, 1970, and the strike officially ended on December 5. At this point there was still an unresolved question relating to the return to work of approximately 82 strikers. These, it appears, were the subject matter, in part, of the complaint previously issued on November 16. A considerable por- tion of that case, which is actually part of the consoli- dated instant proceeding , was taken to arbitration. This particular phase is still in some form of suspended animation awaiting an outcome of pending appeals liti- gation with respect to the arbitration awards. Nothing in- volved in that arbitration, however, is involved here. There is no contention by any party that the arbitration was anything but regular on its face and not in any way "repugnant to purposes and policies of the Act."' Subsequent legal proceedings involving this subject matter must be noted here. A charge in Case 7-CA-8977 alleging discriminatory failure to reinstate strikers was filed against Respondent on September 21, 1971. This was thereafter dis- missed by the Regional Director. Meanwhile, on October 29, 1971, Respondent filed a representation petition for an elec- tion in Case 7-RM-822, questioning the Union's majority status; and on December 14, 1972, a representation petition was filed by an employee of Respondent in Case 7-RD-1073. Both petitions were held in abeyance pending the outcome of the deferred unfair labor practice proceedings. On January 31, 1973, another unfair labor practice charge was filed, Case 7-CA-10030, by the Union, this time alleging Respondent's refusal to bargain. After dismissal by the Re- gional Director and a reversal of his dismissal on appeal by the General Counsel an amended complaint was issued on July 25, 1973. This amended complaint, by direction of the General Counsel, incorporated the charges in Case 7-CA-8158, issued on November 16, 1970, and as well as Case 7-CA-10030. It is this amended consolidated complaint upon which this case proceeds. B. The Issues As described in brief summary above it is obvious that this case involves a spate of litigation. On closer scrutiny it would appear that all of this legal activity has been advantageous to everyone except the individuals in whose behalf it was in- stituted, the employees-a case spawned in an aura of juris- dictional uncertainty and unduly prolonged by a general reluctance to come to final grips with this jurisdictional issue. It has become a vehicle whereby the Respondent and Union have succeeded in building such a morass of legal obfuscation that both the forest and the trees are frequently out of sight. By the diligence of counsel for the General Counsel, however, the basic issues have been effectively preserved. Simply stated the issues presented here are (a) whether a strike, economic in its inception, was converted to an unfair labor practice strike by the imposition of illegal conditions to the signing of a collective agreement, namely, the require- ment that the contract be for members only, and that the Union waive its right to represent or grieve in behalf of em- ployees whom the Respondent would discipline for alleged strike misconduct; (b) whether the strike itself was illegal as not being in conformity with Section 8(d) of the Act; (c) 77 whether upon the conclusion of the strike the strikers were entitled to recall in the face of Respondent's allegations of strike misconduct; and (d) whether there could be a reasona- ble doubt that the Union had lost its majority thus relieving Respondent of its obligation to bargain. C. Relevant Facts 1. Contract negotiations As previously noted, a contract between Respondent and the Union expired on December 31 , 1969. It was extended in writing for 30 days and this extension expired on February 1, 1970. Negotiations for the new contract continued in the meantime and when no agreement had been reached by Feb- ruary 5, 1970, the Union called a strike. This strike, admit- tedly instituted in support of the Union 's bargaining position, continued throughout most of 1970 , while negotiations also continued, with the assistance of mediators associated with MERC. An early effort has been made by the Union to secure the services of State authorities , including MERC and the governor's office, in the settlement of the dispute, the Board not being deemed to have asserted jurisdiction over facilities such as Respondent's.` This took the form of a letter to MERC, dated January 6, 1970, stating as follows: This is to advise you that Michigan Council #55, AFSCME, AFL-CIO, representative of Local # 1511, Michigan Masonic Home Employees, requests the inter- vention of the Michigan Employment Relations Com- mission in a dispute over the renegotiations of a collec- tive bargaining agreement pursuant to and in accordance with Section 9 and Sections 13 through 13(g) of the Act 176. The issues are over sick leave, work hours, time and one-half, hospitalization, life insurance, holidays, clas- sifications, wages, job descriptions, cost of living clause, no sub-contracting clause, and successors clause. After four meetings and some 34 hours of negotiations on amendments and/or modifications on an agreement which expired December 31, 1969, and the employer and the Union had verbally agreed at the bargaining table to extend the agreement for an additional 30 days , giving the parties an opportunity to attempt to resolve the is- sues or call on the services of the Michigan Employment Relations Commission , pursuant to the Governor's Pa- nel, the Union finds now that the employer representa- tive, Mr. Ryburn, has refused to sign the letter of exten- sion as submitted by the union until approved by the Michigan Masonic Home's Home Board of Control. Very truly yours, Robert Chittenden Thereafter, on January 26, the Union sent to MERC and the Board written notices of intent to strike, the notice to MERC reading as follows: 3 Cf. Spielberg Manufacturing Company, 112 NLRB 1080 (1955). 4 Cf infra 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The following is a copy of a telegram sent to the National Labor Relations Board, Detroit, on January 22, 1970. "This is to advise you that after a series of negotiations and submitting a letter to reopen 60 days prior to December 31, 1969, and a contract extension until mid- night, February 1, 1970, that an impasse has been reached at the Michigan Masonic Home in Alma. This is a non-profit organization with a gross income of over $200,000, and there is a meeting set for negotiations strictly for clarity on non-economics. The Union will present the proposal to the membership on January 29, 1970, for a rejection and a strike vote, and to take legal strike action in accordance with the National Labor Re- lations Act of 10 days advance strike notice. If this is not the proper procedure or time limits, please advise immediately." Very truly yours, Robert Chittenden As the strike progressed thereafter the patties continued to meet on a reasonably regular basis; sometimes face-to-face, at other times as two groups coordinated by a mediator. In addition to economic issues, about which there was consider- able diversion as indicated by the foregoing letters, the parties continually discussed at their meetings the reinstatement of striking employees who Respondent contended had been in- volved in strike misconduct, but without ever identifying to the union representatives who these particular individuals actually were. Respondent, for its part, insisted that it was the Union's obligation to identify these individuals among the strikers, that it (the Union) knew who had engaged in the misconduct, and that it should take appropriate action with respect to them. The union representative, on the other hand, claimed lack of knowledge as to who the alleged malfactors were and repeatedly urged Respondent to provide it with any list of names and misdeeds it possessed, as a basis for further discussion or action, as the case might be. This dispute as to the identity of strikers and the responsibility for their acts continued unabated in each discussion held during the strike, and became subjects of nearly every item of correspondence passing between the parties.' In the course of discussion economic issues were consid- ered in great detail, and on July 22, 1970, Respondent pre- sented to the Union's representative its contract proposal. Included in this proposal was a clause which read as follows: ARTICLE 1. RECOGNITION Employees covered. Pursuant to and in accordance with all applicable provisions of Act 176 of the Public Acts of 1947, as amended, the Em- ployer does hereby recognize the Union as the exclusive 5 The foregoing summarization of the issue relating to the identity of strikers engaged in misconduct is a synthesis of the documents in evidence and the testimony of Walter Oliver and Robert W Chittenden, the Union's representatives at the hearing, and Norman Ryburn and Hicks Griffiths, Respondent's administrator and attorney respectively, both of whom repre- sented it at the meetings The names in question were finally divulged at the hearing before me in the form of a list offered by Respondent and received in evidence over the Union attorney's objection representative for the purpose of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment for the term of this Agreement for all Employees of the Employer, who are members of the Union, excluding Registered Nurses, Licensed Practical Nurses, Graduate Practical Nurses with certified State permits, irregular, temporary em- ployees, Bookkeeper, Assistant Bookkeeper, Secretary to Medical Director; Secretary to the Home Administra- tor; Secretary to Director of Nursing and Supervisors; State of Michigan approved, licensed and/or Pharmacy and Laboratory technicians, plant guard and Supervi- sors. [Emphasis supplied.] This clause was a duplication of a clause in the recently expired agreement between the parties, excepting only that the phrase "who are members of the Union," was inserted together with several corrections relating to certain profes- sional employees to be excluded from coverage. It is Respon- dent's contention, vigorously advanced at the hearing by tes- timony and by a statement attributed to a mediator several months after the submission of the proposal, that this was a typographical error, the typist having erroneously substituted the word "Union" for "unit." I am not disposed to accept this explanation, for three reasons: (1) there is no evidence in the record that the Union was ever advised that this was a typo- graphical error, (2) the error did not become the subject of consideration until raised by the mediator in the context of a letter on October 8, 1970, addressed to the parties wherein he referred to the clause as an illegal "members only" clause, and (3) the substitution of the word "Union," with the capital "U," for a "Unit" was a lower case "u" does not suggest a reasonable typographical error. This is particularly so since the whole phrase was an addition to the new contract and had never appeared at all in the previous one. I accordingly con- clude and find that upon all the evidence before me that "members of the Union," as contained in the Respondent's proposal, was not a typographical error, albeit, Respondent, at a later date, readily agreed to the substitution of the words "members of the unit." The contract proposals submitted by Respondent was sub- mitted to the employees on the following day, July 23, and after fully considering it they voted to reject it. Respondent was notified accordingly and the strike continued. Significantly, on July 14, a week before the Respondent's submission of its contract proposal, Respondent's attorney and representative in the negotiations addressed the following letter to Walter Oliver, the Union's representative: This is to notify you that due to the length of the strike, the Employer has had the opportunity to access its staffing requirements and finds that it is over-staffed among the following classifications: Nurse Aides, Or- derlies, Clerk-Typist, Beauty Operators, Hallmaids, Laundry Helpers, Kitchen Helpers and Dishwashers. Please be advised that due to this finding, it will be necessary to terminate the employment of some em- ployees. The Employer stands willing to negotiate the basis, procedures, and personnel who will be terminated as a result of the reduction of personnel. Please be further advised that it will be the Employer's position that any employee who has engaged in any GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME violence, physical damage, vandalism, etc., will not be reinstateable upon conclusion of the strike. Since the Union has inside information as to who these persons are, we shall expect that the Union present us with a list of such names and would be willing to discuss their situation. Please communicate with me as to a date for negotia- tions on the above items. Very truly yours, Griffiths & Griffiths HICKS G GRIFFITHS Oliver testified at the hearing as follows: A. Yes, a part of the condition of any agreement that was reached we would waive the right to represent those that had been discharged, and again we tried to point out just cause would only be borne through arbitration. Q. Did Mr. Griffiths ever tell you personally face to face or by telephone that the employer wanted this con- dition? A. Mr. Griffiths insisted personally, face to face, by telephone and by written communications, he insisted that certain employees were not reemployable, taking the position first the union had a responsibility to give those names to the employer, and I think the first figure of ten was thrown to us. We asked if he had information, we would investigate, perhaps, you know, some of them we would choose not to represent but he did not give us the names. s s s s s Q. (By Mr. Alexander) I think the question was did Mr. Griffiths ever tell you personally or over the phone or face to face that before there could be any agreement, the union would have to give up its right to grieve any question concerning reinstatement of the strikers? A. That's correct, yes. JUDGE MAHER What is correct? Q. (By Mr. Alexander) Did he or didn'd he? A. Face to face and by telephone, yes, Mr. Griffiths asked us to give up the right to represent certain mem- bers. JUDGE MAHER Under what circumstances? THE WITNESS By virtue, as I have indicated several times, by virtue of those persons the Home felt was guilty of strike misconduct, et cetera, and we knew not how many or who. Q. (By Mr. Alexander) Do you recall whether he made that statement at the time you called him on the phone? A. Pardon? Q. That phone call, where you called him after you met with the membership, that phone call you testified to previously? A. Yes, he made the statement each time I talked to him. JUDGE MAHER Was this in conjunction with the sign- mg of the contract? 79 THE WITNESS This was prior to signing the contract. This has been the position they established-I think I heard it the first time Mr. Griffiths, myself and Bill Marshall present of the Michigan State AFL-CIO, my- self and Fairburn Smith and Mr. Gnffiths was there, I think the first time it was ever projected to us that we not represent certain members of the Home felt were not reemployable. JUDGE MAHER What did this have to do with the contract? Did it have anything to do with the contract itself, the negotiations or was it independent of all of this? THE WITNESS It started on the basis of negotiations we could not reach any fruitful discussion until we agreed to that. JUDGE MAHER Excuse me for taking this over, but I want to get this straight myself. What do you mean you could get no fruitful discussions? THE WITNESS We could get no further? We had to agree to that before we could discuss any economics, contract settlement, et cetera. JUDGE MAHER I would like to pursue this myself. You were told you would get no economics until you agree to this, yet there was presented to you a full-blown offer on July 20th. Had Mr. Griffiths retreated from that position at that time? THE WITNESS The July 20th? JUDGE MAHER That's the one. THE WITNESS The July 22nd - JUDGE MAHER That's the one, July 22nd, for members only? THE WITNESS For members only. JUDGE MAHER I know exactly what it is, but you say they would not get to any fruitful negotiations until you made the agreement to cease representing certain of your members. THE WITNESS That's correct. He gave me that as a proposal. When he gave it to me he in fact said but you must understand that even if ratified by the members we would have to have an understanding you will not repre- sent employees of the Masonic Home that we feel is not reemployable. Attorney Griffiths, testifying before me, denied the state- ments attributed to him by Oliver. He did testify that on the occasion of submitting the Respondent's contract proposal he asked Oliver if he had received his letter of July 14, quoted above. On the following day, July 23, according to Griffiths, Oliver telephoned him to advise that the employees had re- jected the proposal. In its place Oliver proposed to Griffiths that Respondent agree to the old contract with certain wage and insurance modifications. Griffiths then informed him, he testified, that, the Union's proposal would have to be submit- ted to Respondent's Board and he again asked Oliver if he had read the July 14 letter. Griffiths then testified: Well, I said when the contract was completely nego- tiated, and the strike was over, there would have to be a procedure for the reinstatement of strikers, and I felt that we should have discussions as to the procedure for reinstatement of the strikers. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Without finding it necessary at this point in my findings to resolve the credibility as to the conflicts between Griffiths' and Oliver's testimony in this area one finding is nevertheless apparent. From the substance of Respondent's July 14 letter to the Union, dealing as it does with the main subject of discussion, reinstatement of strikers, and from Griffiths' tes- timony, it is apparent that the reinstatement of strikers was part and parcel of Respondent's contract proposal, despite Griffiths testimonial effort to separate the two. Linking as he did in those two conversations with Oliver the contract and the Respondent's position of refusing the reinstatement, it is a reasonable inference and I accordingly find that an agree- ment to waive reinstatement was an unstated condition to Respondent's July 22 contract proposal. This condition, ex- pressed as it is in Respondent's version, and testified to as an outstanding issue in all subsequent negotiations by Oliver, remained until the close of the strike. Documentary evidence submitted at the hearing contrib- utes significant support to this finding I have made, quite apart from testimony in various shades of contradiction. There I shall reproduce below. On August 8, 1970, Oliver of the Union addressed a telegram to Respondent in which he noted the lack of progress in the previous day's mediation session . He proposed, as he had on July 23, that the old contract be accepted by Respondent with certain insurance, wage and classification modifications and the Respondent "withdraw its position with regard to persons they deem not reemployable and allow those persons access to the final step of the grievance procedure under the newly executed contract." In a reply dated August 24, Attorney Griffiths stated: With reference to your proposal that the last step of the Grievance Procedure be invoked for your members participating in the acts of violence, vandalism, physical damage, etc., against persons or property commencing on and after the start of the illegal strike of February 5, 1970, be advised: (1) That your proposal pre-supposes that the grievance procedure was in effect at the time of the acts of misconduct; (2) that the numerous acts would involve a multiplicity of grievance cases-which would be extremely expensive, time-consuming, and cumber- some, and (3) that the said grievance procedure could be mis-used and abuse. Again, we request that the Union present to us resig- nations of those persons engaged in the acts of vandal- ism, violence, physical damage, etc. The safety and well- being of the persons who are residents at the home (including patients at the hospital) have to be guaran- teed. Whenever the quality of patient care is maliciously impaired and the patients' welfare is so threatened, the Governing Board is under duty to prevent recurrence of such employee activity. For example, a striker who would pour salt and sugar in the flour supply, or who scrambled the medicine of the patients, should not be employable under any circumstances. Such totally irre- sponsible misconduct could have resulted in serious ail- ments and terminal damage to many patients. For in- stance, the consequences to a diabetic patient could have been devastating. We cannot believe that the Union seeks to continue to represent such persons! Thus, the Union should accept its responsibilities to obtain their resignations. Be further advised that in addition to the persons referred to in the above paragraphs, the Employer will not be reinstating all strikers due to the Employer's re- ductions in staff (within the bargaining unit). As set forth previously (see my letter, addressed to you, dated July 14, 1970), the Employer has found that it does not need a staff of approximately 195 employees (in the unit). As a result the total unit staff will be approxi- mately 140. Since the re-instating cannot be construed to be a layoff-recall situation, and the Agreement is not applicable, the re-instatement of strikers shall be based upon length of service and qualifications. The decisions therein shall rest solely with the Employer and shall not be covered by the Agreement, nor amenable to the griev- ance procedure. Again, it is pointed out that this is sepa- rate and distinct from the non-employment of the strik- ers who engaged in violence, physical damage, vandalism, etc. Thus, to summarize, first: strikers who engaged in violence, physical damage, vandalism, etc., shall not be re-employed, and the Union should present the Em- ployer with their resignations; and second: if the total number of strikers seeking re-employment exceed the number of vacancies available, they shall be re-instated based upon their length of service and qualifications as determined by the Employer. To facilitate this matter, the Union should present a list of re-employable strikers who seek re-instatement to the Employer within 10 days of receipt of this letter. If you have any questions, please do not hesitate to contact me. Very truly yours, GRIFFITHS & GRIFFITHS Hicks G. Griffiths Thereafter, on November 11, 1970, there is another letter to Oliver Griffiths addressed himself on Respondent's behalf to the same subject matter: In my July 14 and August 24, 1970 letters to you, I brought to your attention the findings of over-staffing, the inability to reinstate all strikers, the termination as a result of the reduction of personnel, and the conclusion that the strikers who engaged in acts of misconduct would be the first to be determined unqualified and un- reinstatable. In these letters, I asked for the union's cooperation in helping determine, first, the individuals who were en- gaged in the misconduct and, second, reinstatement of strikers thereafter based upon length of service and qualifications. These points were also made during vari- ous meetings with either you or Mr. Chittenden. Your only proposal was an attempt to include it in the collective bargaining agreement and have it covered by the grievance procedure. As pointed out in my August 24 letter, this was wholly inadequate. Likewise, as pointed out in my letter, the matter of reinstatement is GRAND LODGE OF FREE AND ACCEPTED MASONS , MASONIC HOME 81 not and should not be included as part of the collective bargaining agreement . In other words, the question of reinstatement for strikers has nothing to do with negotiations for the collective bargaining agreement-they are separate and distinct and agree- ment or disagreement of one has nothing to do with agreement or disagreement of the other. Since we have heard nothing further from you, we have interpreted this to mean that you are leaving the entire decision to the employer and no longer wish to discuss it. Further, to facilitate the reinstatement of per- sonnel when consummation of the collective bargaining agreement is effectuated, please be advised of the follow- ing: 1. The employer has finalized its study of its needs, vacancies, and operations . The findings of such study indicate that there will be need for twenty-one addi- tional personnel. 2. The employer has reviewed the longevity , qualifica- tions, background, abilities, conduct during the strike, and other relevant factors and has prepared a list of personnel who will be asked to return to work upon termination of the illegal strike. The list of names is attached hereto. 3. When the illegal strike is terminated , the personnel listed on the attached sheet will be contacted by tele- gram and given appropriate time in which to report for work. 4. Barring unforeseen circumstances or developments, no other personnel would be reinstated. If there are any questions , please do not hesitate to contact me. Very truly yours, GRIFFITHS & GRIFFITHS Hicks G. Griffiths At some point shortly thereafter the Union capitulated in its demands, signed a contract and called a halt to the strike on December 5. Immediately thereafter the Union sought to process grievances on behalf of certain of the employees whom Respondent had refused to take back either because of their alleged misconduct or because of the reduction of the staff. Respondent's reply to these submissions was contained in a letter dated December 21, 1970, from Norman Ryburn, Respondent's administrator, to the Union's chairman of the unit: The nine alleged grievances submitted to me on Decem- ber 17, 1970 are denied , because there is no violation of any clause in the Agreement . The employees were not laid off. The Union called an illegal strike. During the duration of the strike, Management abolished jobs and positions . Management negotiated with the Union on re- turn of strikers and for the jobs and positions still vacant at the end of the illegal strike. Since there was no layoff or recall situation and no Agreement in effect , there is none, there can be no grievance. For these and other reasons not specifically set forth herein, there are no grievances. Retroactive pay for the time worked from January 1, 1970 to February 5, 1970 is being prepared and will be mailed to the persons who are no longer employed. For employees who have not already received the retroactive pay, they, too, shall receive it as soon as practical. Yours truly, Norman L. Ryburn Upon consideration of this additional undisputed evidence, documentary in form , I restate my finding and conclusion that the refusal to reinstate the strikers was a condition of Respondent's execution of the collective agreement and I further find upon the documentary evidence relative to the period immediately following the execution of the most re- cent contract that Respondent implemented the condition it was imposing by the strategem of refusing to consider the grievance submitted in behalf of the unreinstated strikers. In this respect I am aware, of course, that Respondent's ex- pressed refusal in this regard is carefully stated in language which would place the subject of the grievance outside the framework of the contract . I have no hesitancy whatever in reading all of the documentation together , as well as consider- ing the relevant testimony in the record, and finding this to be a legalistic effort without basis in logic. 2. The nature of the strike On February 4, 1970, the date preceding the strike, there were 180 individuals employed at Respondent's Home. Of this number approximately 160 joined the strike , either join- ing the picket line or absenting themselves altogether. Another 20 remained at work, and during the period of the strike between February 5 and December 5, approximately 20 other employees abandoned the strike and returned to work. And when the strike ended on December 5, 82 of the 130 employees were deemed unemployable by Respondent and were refused reinstatement . It is the reinstatement of these particular individuals which comprises the basic issue of this case. It is Respondent's contention that because of the miscon- duct in which 82 of the strikers engaged in the strike is illegal and the individuals accordingly not eligible for reemploy- ment. Throughout the hearing constant reference was made by Respondent's counsel to the misconduct of these people, and the record abounds with questions concerning it directed to Respondent's and General Counsel's witnesses . Thus it appears that by way of establishing its condition for signing of a contract Attorney Griffiths , at every meeting, requested that the Union provide him and his client with a list of the wrongdoers and that it take appropriate remedial action against them . However, when asked by the Union officials to identify the people, he refused. Nor was there ever any spe- cific identification by Respondent of the strikers allegedly involved until sometime in mid -October when Griffiths en- trusted such a list to the mediator. The Board was equally unadvised of the identity of these individuals , Norman Ry- burn, the Homes administrator, testifying that a charge was never filed against the Union alleging strike violence and picket line misconduct. 0 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Coming down to the hearing before me. In the pleadings, statements of counsel, the substance of interrogation of wit- nesses there is constant reference to acts of violence. There are references to mixing the medicines and dentures of pa- tients, altercations with employees not on strike, slashing of tires, a car blocking a driveway, damage to employees' homes, and a variety of other acts. Similarly, there is in evidence a copy of an injunction issued against the Union and certain named individuals on July 22, by the circuit court for Grotiot County, Michigan, restricting the number of pickets on the picket line, directing the Home to respect the Union's peaceful picket line, and enjoining all parties from harassing any other party by specified acts of misconduct, and enjoining the Union and its agents from parking cars on the Home's property. In addition, there appears in the record an Order dated May 25, 1971, finding the Union and its officers and the same named individuals, in contempt of the injunction and imposing a fine of $500 on the Union. Nowhere in either document does there appear the name of any individual ac- cused of specific misconduct. And indeed in the citation of contempt the only indication of the nature of the misconduct that is evident at all is a statement on the record by counsel for the Union stating it to be a "violation of court order relating to the number of pickets." In the face of all of the foregoing accusations, many of them generalizations by Respondent's witnesses most cer- tainly not to be either denied or minimized, there has never been any effort on Respondent's part to relate a specific act of violence or misconduct to any specific individual striker, with but one exception-Betty Wolfe was the owner of a car deliberately parked across the driveway. Nor do I give cre- dence to the contention that these individuals were not known to the Respondent, a contention reiterated by Ad- ministrator Ryburn as he recounted the types of misconduct that have occurred. The fact is that in the final day of the hearing of this matter Respondent introduced into evidence a list, presumably the one it had given to the mediator on September 29, 1970, on which was set forth the names of 41 strikers and opposite these names a catagory of misconduct such as denture mixture, threats, auto damage, etc. Thus, for the first time in this proceeding the names of the alleged culprits was made known by Respondent, when in fact, their identity had been known to it in late September 1970, if not before. Upon the ending of the strike on December 5, 1970, Re- spondent accepted back 21 of the strikers, as specified in a letter from Griffiths to the Union on November 11. In addi- tion, according to Union Representative Chittenden, whom I credit, three or four other individuals returned to work. There remained, according to Union officials' best estimates, 82 strikers still to be reinstated but refused reinstatement by Respondent in accord with its stated position. D. The Refusal To Bargain It is alleged in the complaint that by the Respondent's response to a request for bargaining made in the fall of 1972 it engaged in an unlawful refusal to bargain., 1. The appropriate unit for bargaining There is no dispute as to the appropriateness of the bar- gaining unit as set forth in the most recent contract between. the parties. It is as follows: All regular employees of the employer who work in categories described as Hallmaid, Kitchen and Dining room Helper, Laundry Helper, Night Watchman, Dish- washer, Janitor, Kitchen Clerk, Nurse Aide, Orderlie, Seamstress, and Occupational Therapy Aide, excluding Registered Nurses, Licensed Practical Nurses, Graduate Practical Nurses with certified State permits, irregular, temporary, employees, Bookkeeper, Assistant Book- keeper, Secretary to Medical Director, Secretary to the Home Administrator, Secretary to the Director of Nurs- ing and Supervisors, State of Michigan, approved, lic- ensed and/or Pharmacy and Laboratory Technician, Plant Guards and Supervisors. I accordingly conclude and find the foregoing to constitute a unit of employees appropriate for the purposes of bargaining. 2.,,The refusal to negotiate a new contract In mid-October 1971 Union Representative Chittenden wrote Administrator Ryburn requesting that negotiations be commenced for a contract to replace the one that was to expire at the end of the year. In response Ryburn sent a letter to Chittenden, through Mediator Howlett, stating that they were refusing to bargain and were filing a petition for an election to resolve the good-faith doubt which it entertained concerning the Union's majority status. This petition was filed on October 29, 1971, in Case 7-RM-822. Several months thereafter an election petition was filed by an em- ployee in Case 7-RD-1073. Both petitions were held in abey- ance by the Regional Director pending the determination of the unfair labor practices alleged in the complaint in this proceeding. By admission of Respondent in its answer it may be stated as a fact that again on or about October 20, 1972, the Union reiterated its request of Respondent that it com- mence collective-bargaining negotiations in an effort to negotiate a new contract and that in reply, on November 6, 1972, Respondent, through its attorney, informed the Union that the question of whether Respondent would negotiate with it could be resolved by the Union's cooperation in the conduct of an election sought by the Respondent in Case 7-RM-822. Subsequently on November 6, 1972, the Union addressed Respondent's attorney requesting that negotiations commence at the earliest possible date. Respondent since that date has failed to respond to the Union's request . In its an- swer to the complaint in this respect Respondent contends that due to the pendency of the representation petitions they did not engage in negotiations with the Union because of its expressed good-faith doubt of the Union's majority status. E. Analysis and Conclusions The focus of this matter is the status of the striking em- ployees insofar as their respective rights to reinstatement after the strike is concerned. And this, in turn, hinges upon the nature of the strike, whether it is an economic strike or GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME an unfair labor practice strike, and upon the evaluation of the conduct of individuals seeking reinstatement, and backpay. It is axiomatic, of course, that economic strikers are entitled to reinstatement so long as they have not been replaced,' or, although replaced, if upon their availability for work there is a job opening for which they are individually qualified.' It is equally well established that strikers engaged in a strike in protest of an employer's unfair labor practices or whose eco- nomic strike has become converted to an unfair labor practice strike by the subsequent commission of unfair labor practices, "do not lose their status and are entitled to reinstatement with backpay, even if replacement for them have been made."8 Basic then to the determination of the status of the employees is the nature. and status of the strike itself., The work stoppage which commenced among Respon- dent's employees on February 5, 1970, was clearly in protest of the failure to reach agreement on a new collective-bargain- ing agreement. All other things being usual this would clearly be a validly instituted economic strike. It is Respondent's contention, however, that the strike was an illegal one from its inception, thus depriving the strikers of such statutory protection as is provided for participation in concerted activi- ties for their mutual aid and protection. In support of its contention Respondent cites the Union's failure to comply with Section 8(d) of the Act, a statutory provision establish- ing the legal criteria for the conduct of the strike in support of negotiations for the renewal of an expiring collective agreement.' Thus, it is contended, the Union has failed to give timely notice to the Federal Mediation and Conciliation Service and the state mediation service (MERC) and has failed to continue the contract in full force and effect without resort to a strike for 60 days after either the expiration of the contract or giving of notice of the existence of dispute. This failure on the Union's part, it is contended, establishes the strike as an illegal one and deprives the strikers of the rein- statement which they seek here. 6 Mastro Plastics Corporation, and French American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270 (1956). 1 N.L.R.B. v. The Laidlaw Corporation , 171 NLRB 1366, enfd . 414 F.2d 99 (C.A. 7, 1969), cert. denied 397 U.S. 920 (1970). 8 Mastro Plastics Corp. v . N.L.R.B., 350 U.S. 270, 278; N.L.R.B. v. Samuel J. Kobritz, d/b/a Star Beef Company, 193 F.2d 8, 16-17 (C.A. 1). 9 Section 8 (d) of the Act as amended, provides, in part, as follows: ... where there is in effect a collective-bargaining contract covering the employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall termi- nate or modify such contract, unless the party desiring such termination or modification- (1) serves a written notice upon the other party . . . of the proposed termination or modification sixty days prior to the expiration date thereof, .. . (3) notifies the Federal Mediation and Conciliation Service within thirty days after such notice of the existence of a dispute . . . and (4) continues in full force and effect, without resorting to strike or lockout, all the terms and conditions of the existing contract for a period of sixty days after such notice is given or until the expiration date of such contract, whichever occurs later: a a a s Any employee who engages in a strike within the sixty-day period specified in this subsection shall lose his status as an employee of the employer engaged in the particular labor dispute, for the purpose of sections 8, 9, and 10 of this Act, as amended .. . 83 A review of the chronology of this matter discloses a num- ber of periods of suspended animation. Looking to the cause of these several interruptions in the normal processing of the case it is apparent that they were caused (1) by uncertainties, deliberations, and reevaluations in the area of the assertion of the Board's jurisdiction over facilities such as Respondent's, and (2) by a deferral of Case 7-CA-8977 to arbitration, a proceeding still in the final appeals stage. Thus, it appears that the Union on February 26, 1970, 10 days after filing its original charge, withdrew it, when it became evident that the Board was not then asserting jurisdiction over nonprofit nurs- ing homes (supra). The matter was then transferred to the State agency (MERC) and the matter proceeded there. Thereafter the Board's policy changed and again a charge was filed with it, removing the subject matter to it from MERC. While the foregoing is not intended to be a precise legal description by me of what was occurring it is suffi- ciently basic as to suggest that no one in authority had ar- rived at any fixed and final determination of the manner in which the dispute was to be resolved; whether it was, in fact, a Federal case, or one for MERC. In the face, then, of such obvious official vacillation in the determination of the proper forum for the resolution of the dispute it would be ridiculous to suggest that the Union at that very time would nevertheless be expected to follow the precise terms of Section 8(d). To so constrain the Union would be to require of it a degree of precision and perspecacity not displayed elsewhere in the processing of the case at any time in its tortured progress . But in any event, consider- ing the timing of the Board's assertion of jurisdiction over nonprofit old age or nursing homes,1° the retroactive application of the Board's newly enunciated jurisdictional standards cannot be presumed, retroactively, without weigh- ing the "mischief' that would be created by such action." In the absence of any showing that such retroactive applica- tion was intended I conclude and find that it was not. I accordingly reject the suggestion that Section 8(d) was of controlling significance at the time the strike was instituted and maintained, and I conclude and find that insofar as the requirement of notice and refraining from a work stoppage are concerned the Union's action was proper in every way, and the strikers did not lose their employee status thereby. In further support of its contention that the strike which began on February 5, 1970, was an illegal one Respondent relies upon the alleged misconduct of those involved as being of such an intensity as to deprive them of the usual statutory protection afforded such concerted activity and to deprive the offending participants of the right to reinstatement. This is commonly referred to as the Thayer doctrine." As a general standard to be applied the following quotation from the deci- sion in this case by the United States Court of Appeals for the First Circuit is noteworthy (213 F.2d at 755-756): If the pickets "restrained" or "coerced" other em- ployees in the exercise of their rights under § 7 of Act, and if union responsibility therefore could be demon- strated, the picketing would constitute a union unfair 10 Drexel Homes, Inc., 182 NLRB 1045, was decided by the Board on June 2, 1970. 11 Security and Exchange Commission v. Chenery Corp., 332 U.S. 194. 12 N.LR.B. v. Thayer Company and H. N. Thayer Company, 213 F.2d 748 (C.A. 1), cert. denied 348 U.S. 883 (1954). 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD labor practice and therefore would not be a protected concerted activity under §7. Nor would the same con- duct by the picketing employees, even though not at- tributable to the union, be protected. This gives us a standard for determining what picket line conduct falls outside the protection of § 7. Certainly conduct which is not a union unfair labor practice may still be unprotected. But with respect to the instant case, if there was no "coercion" or "restraint" of non-striking employees, the picketing should be considered 4 pro- tected activity, for then the collective action would not have been in violation of any other federal statute; nor on the facts found by the Board was the conduct on the picket line in breach of the pace and therefore enjoinable by state law. Thus our problem is considerably simplified. It is un- disputed that those employees who wished to continue working during the strike were able to do so. The Board's decision in Herbert Bernstein, Alan Bernstein, Laura Bernstein, a co-partnership d/b/a Laura Modes Com- pany, 144 NLRB 1592 (1963), gave practical substance to the general standard of evaluation. Thus, in a situation where a union was seeking recognition and a contract and the em- ployer reacted by threat, interrogation, and other acts in violation of the Act, the union engaged in violence-and other misconduct spelled out both in the Trial Examiner's and the Board's decisions. Thus there were recounted an occasion when the union business agent visited the employer together with eight union members, not employees. After requesting and being refused permission to talk to the employees the union group proceeded to physically assault the employer; and when his secretary attempted to call the police "she too was 'pushed around."' A strike in protest of the employer's unfair labor practices had meanwhile been called and while in progress an identified employee-striker pointed out the employer to four thugs who proceeded to beat him. Charges against the union alleging the foregoing has violations of Section 8(b)(1)(A) were filed and a subsequent settlement was reached which included the union's compliance with certain structures, including the posting of a notice. The Board, pro- ceeding to a consideration of the employer's misconduct in the atmosphere of this violence commented unfavorably upon the prospects of bargaining under such conditions. Of this feature, as it relates to the instant case, we shall treat later (infra). But what is significant is the Board's view, not of bargaining, but of employee rights in the concerted activities. Thus, it observed (144 NLRB at 1595) that it does not follow that the Respondents were free to threaten their employees with reprisals because of their affiliation with or their adherence to the Union. We find that by so doing during the meetings held by the Bern- steins with the employees on the afternoon of August 14 and 15, Respondents further violated Section 8(a)(1) of the Act. Nor were they justified in telling their em- ployees, as they did, that they would "never" bargain with the Union. For the Union's misconduct did not extinguish the employees' rights to bargain through the Union. We further find, accordingly, that by threatening their employees with reprisals because of their affiliation with the Union and by announcing to them that their continued adherence to it would be a futile act as the Respondents would never recognize the Union, Re- spondents further violated Section 8(a)(1) of the Act. Respondents' unlawful conduct in derogation of its employees' Section 7 rights was clearly a contributing cause of the strike which began on August 17. We shall therefore adopt the Trial Examiner's recommendation that the Respondents reinstate each of them-except Lewis-upon request, to former or substantially equiva- lent positions, and that it cease and desist from action in derogation of their Section 7 rights. Again in Allou Distributors, Inc., 201 NLRB 47 (1973), the same dilemma arose. Here, in a consolidated proceeding against both employer and union it was found that the em- ployer had violated the Act by procuring the withdrawal of a number of its employees from the union with which it had a contract that was about to expire, by offering various bene- fits to withdraw from the union, preparing and circulating a petition among the employees disclaiming any continuing desire to be represented by the union, and by causing a decer- tification petition to be filed by the employees with the Board. This the Board found to be an aggravated intrusion into the rights of the employees. At no time, however, were employees involved in picketing activity. Here, it was the union itself, as distinct from any of its employee-members, who were in- volved in the violence which followed and which gave rise to the finding of a violation by it of Section 8(b)(1)(A) of the Act. Thus, upon learning of the employer's duplicity-the union's president, vice president, and four business represen- tatives who "through the use of force, threats and general intimatory conduct, 'pressured' the employees to withdraw the decertification petition." This conduct, the Board con- cluded, "created the impression that they were in control of the premises," "frightened and terrorized the employees." In consequence of all of this the Board, relying upon the Laura Modes decision (supra), found the union's misconduct to be of such a grave and serious nature as to disqualify it from obtaining the bargaining rights to which the employer's mis- conduct would, have otherwise entitled it. Nor would the Board find any distinction in either the gravity of the matter or remedy to be imposed depending upon whether the union involved was one recognized for the past several years or one that was seeking its first recognition, as was the case in Laura Modes. These are the cases upon which Respondent relies to sup- port its contention that the alleged violence attending the strike and picketing was such as to render the strike illegal. In the first place there is a significant distinction to be made. The issue of illegality raised in the instant case is in the context of the rehiring of strikers, and not, as in each of the cited cases, in the efficacy of a bargaining order. Indeed, in Laura Modes, the argument of strike illegality as barring strikers was rejected and the strikers were reinstated. Basically the instant case differs from the cases upon which Respondent relies (Thayer, Laura Modes and Allou) in the evidence of violence upon which the Board's determination is to be made. In each case the evidence was plentiful and the findings explicit. In Thayer both the Court and the Board (99 NLRB 1122 at 1130 and 1133) outlined in detail the impro- prieties on the picket line and the specific individual incidents GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME of violence and misconduct, such as kicking, weilding of iron pipes, opening of car doors, et al. In Laura Modes the beating of the employer and the "pushing around" of his secretary was fully documented. And in Allou the union agent's vio- lence was spelled out to find Section 8(b)(1)(A) violations. Here, on the contrary, we have consistent reference to misconduct, the switching of dentures, blocking of driveways, auto damage, but no identification. Instead the Employer asks the Union to punish the culprits, the Union asked the Employer to identify them, ad infinitum, and in the final hours of the hearing, on January 24, 1974, Respondent first produced and offered into evidence a list of the alleged cul- prits it has in its possession at least since September 1970. Nowhere in the presentation of its defense evidence or in the support of its allegations of misconduct was there produced one specific incident by an identifiable employee or union member, excepting only Betty Wolfe whose car was used on one occasion to block a driveway. This is not the evidence of aggravated violence and miscon- duct upon which the findings were made in the cases relied upon for support by Respondent. By comparison, the evi- dence produced by Respondent palls in insignificance. This is not to say that such events may well not have happened. But substantial evidence of facts must be produced, and not mere protestations and generalizations. Indeed the injunction papers submitted here relating to the misconduct on the picket line are but more of the same generalization. However much evidence the learned judge of the Gratiot County court received and considered to grant the injunction in the first instance, and to impose a fine thereafter for contempt of it, all that appears is that the number of the pickets was to be limited, that the Union refrain from parking cars on Home property, and that "All parties are enjoined from harassing any other parties," the harassment being spelled out in forms of such misconduct as puncturing tires, spreading glass, etc. But again, nowhere is any one striker, picket, union member or employee identified as a wrongdoer. Accordingly, upon consideration of all of the foregoing, and upon comparison with factual content of cases wherein the Board and the courts have branded union and employee misconduct has so aggravated as to justify some curtailment of the Board's usual remedial action, I conclude and find that the picketing and strike events, as set forth in this record, are completely devoid of such specific factual detail as would place their concerted activity in the same catagory as the concerted activities in the cases relied upon. I therefore conclude and find that the strike and the attendant picketing from February 5, 1970, to December 5, 1970, has never lost the protection afforded such concerted activity by Section 7 of the Act. A review of the record and findings made on it (supra) reveal that quite apart from the alleged and/or actual vio- lence discussed previously, bargaining went on apace. Then, on July 22, Respondent presented the Union its contract proposal which included in it a provision limiting recognition to members of the Union, as I have previously found. And at the same time Respondent's attorney asked the Union's re- presentative if he had read Respondent's letter of July 14 in which was spelled out Respondent's refusal to reinstate strik- ers. On the following day, when presented with the em- ployees' rejection of its proposal, Respondent, by its attorney, again referred to the July 14 letter, and it has consistently 85 maintained its position respecting reinstatement through the remainder of the strike, and after the employees' capitulation. I have already found and concluded this insistence by Re- spondent upon a waiver of striker reinstatement to be a condi- tion imposed by it to a signing of a contract. It is well estab- lished that a "refusal to execute a complete contract, except upon a condition outside the terms of the contract itself, is a violation of Section 8(a)(5) of the Act."" And in reliance upon this authority the Board has recently affirmed the con- clusion that insistence upon inclusion in the contract an agreement by a union not to punish nonstrikers was a condi- tion precend'ent to the signing of the contract and a violation of Section 8(a)(5) of the Act.14 It is significant that the very conditions sought in the cited case is the converse of the condition being sought by Respondent herein. Upon this au- thority, therefore, I conclude and find Respondent, by impos- ing as a condition precedent to the signing of a contract that strikers not be reinstated, thereby refused to bargain in viola- tion of Section 8(a)(5) of the Act. Furthermore, upon consideration of all of the evidence, I have found the inclusion of the "member of the Union" to have been intentional. I am aware, of course, that Respondent eventually withdrew this provision from its proposal but only after its illegality was brought to Respondent's attention 2 months later. There is nothing in the record to suggest that Respondent ever brought this alleged typographical error to the Union's attention at any time. A reading of the Board's most recent holding on the subject of "members-only" contracts leaves me with more than a suspicion that the Board's position has been consistently un- clear. Thus in Don Mendenhall, Inc., 194 NLRB 1109 (1972), the Board held (at 1110): Although the Board has never ruled squarely on the legality per se of a members-only contract, Max Factor, 118 NLRB 808, the insufficiency under the Act of such recognition has been well established . For that reason we dismiss the complaint insofar as it alleges violations of Section 8(a)(5). Turning now to Max Factor & Company, 118 NLRB 808 (1957), in an action where violations of Section 8(a)(5) were not alleged, the Board there stated (at 815) We are not now deciding whether a members-only con- tract, standing apart from any other unlawful conduct by the contracting parties, is per se a violation of the statute. In such a state of the law and considering the tenuous circumstances upon which my findings concerning this al- leged typographical error are based I am inclined to attach no more consideration to the submitted clause recognizing "members of the Union" than the Board attached to a con- tract were the members-only feature was never questioned, as in Don Mendenhall, Inc. I accordingly would recommend that so much of the complaint as alleges the proffering of such 13 N..L.R B. v. Dalton Telephone Company, 187 F.2d 811, 813 (C A 5, 1951). 14 Independent Stave Co, 175 NLRB 156 See also the Herald Co., 181 NLRB 421, enfd. 444 F 2d 430 (C A 2), cert. denied 404 U S 990. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a contract provision to be a violation of Section 8(a)(5) be dismissed. It now remains to be determined whether this was an eco- nomic strike or an unfair labor practice strike; bearing in mind that the former may be converted to the latter.15 Unquestionably the strike commenced as an economic pro- test of a failure to reach an agreement, and so it continued until mid-July 1970. But "[t]here is no question but that where a strike is initially undertaken for economic reasons but is prolonged by reason of the employer's intervening unfair labor practices, the employer is in the same position it would have been in had his unfair labor practice caused the strike in the first place and is bound to reinstate all strikers and discharge all those hired to replace them during the strike "16 Having previously concluded and found the strike and picketing to be concerted activity protected by the Act, and having determined that midway through the strike Respond- ent imposed the condition of waiver of striker reinstatement rights and has steadfastly adhered to its position in that re- spect, it remains to be determined what, if any, relationship one finding bears to the other. Clearly the strike was an economic one at its inception on February 5, 1970, as noted above. But when the employees were presented the Respon- dent's proposal on July 23, and were reminded then and constantly thereafter that it must be linked to the Union's agreement not to seek reinstatement of the strikers alleged to have committed misconduct, the employees then had further basis for its protest-Respondent's imposition of an unlawful condition which I have found would constitute an unfair labor practice. I have no doubt that the employees were fully aware of the implications of this condition, of what it meant to them, and of the fact of their continued strike included this as a further subject of their protest. Employees were at all times members of the bargaining committee which met with Respondent's officials. Union Representatives Chittenden and Oliver credibly testified that the committee was con- stantly appraised of any developments which occurred at other than bargaining sessions. Certainly it is reasonable to infer, as I do, that the dominant issue and the one holding up the very signing of the contract, Respondent's condition re- specting reinstatement of strikers, was known to the striking employees through their committee members and that this was, after having been learned of on July 23, part and parcel of their protest strike and picketing for the remainder of its duration. I accordingly conclude and find that from July 23, 1970, until its cessation on or about December 5, 1970, the work stoppage of Respondent's employees was an unfair la- bor practice strike, as so denominated by the Board and the Courts." There remains for consideration the legitimacy of Respon- dent's contention that it did not unlawfully refuse the bargain when requested to do so on October 20, 1972, and thereafter on November 6, and since. This it contends it did because it IS N.L.R.B. v Kobritz, 193 F 2d 8, 16 (C A 1) 16 N.LR B. v Crosby Chemicals, Inc, 188 F 2d 91, 95 (C A 5), citing NLR.B v Remington Rand, Inc., 130 F 2d 919 (CA 2) See also: Alba- Waldersian, Inc. v NLRB, 404 F 2d 1370, 1371 (C A 4, 1968) 17 NL R B v Mastro Plastics Corporation and French American Reeds Manufacturing Company, 345 F 2d 170 (C A 2, 1965), cert denied 384 U S 972 (1966), NLR B. v. Mackay Radio & Telegraph Co, 304 U S 333 entertained a good-faith doubt as to the Union's majority status. What Respondent seeks by its claim is to reap the full advantage of its previous conduct which I have already found to be unlawful. If there have been defections from the Union, and the record shows that there have been, and if there have been employees hired subsequently who are not union mem- bers, or do not wish union representation, and Respondent's conduct makes this feeling quite understandable, then the loss of union membership is attributable only to Respondent's own illegal efforts. It is well settled beyond the need of cita- tion of authority that a loss of majority under such circum- stances is one that is attributable to the employer and may not be relied upon by him to avoid further bargaining. I accord- ingly conclude and find that the Union's majority status has not been affected by Respondent's unlawful efforts and that Respondent's refusal to bargain for such reason does not constitute a good-faith doubt of the Union's majority status. Under such circumstances I therefore conclude and find Re- spondent's refusal on and after November 6, to bargain with the Union as the majority representative of its employees is a refusal to bargain in violation of Section 8(a)(5) of the Act. IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations de- scribed in section I, above, have a close, intimate, and sub- stantial relationship to trade, traffic and commerce among the several States, and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V THE REMEDY I have found that Respondent by its conduct has refused to bargain with the duly selected bargaining representative of its employees, and it has failed and refused to reinstate em- ployees striking in protest of Respondent's conduct after un- conditional request made in their behalf on the cessation of the strike, such conduct being in violation of Section 8(a)(1), (3), and (5) of the Act. I shall accordingly recommend that it cease and desist therefrom, and because of the gravity of Respondent's conduct shall also recommend that it cease- and-desist from infringing in any other manner upon the rights of employees guaranteed by the Act. 18 I shall also recommend certain affirmative action be taken in order to effectuate the policies of the Act. I shall recommend that Respondent be ordered to continue recognition of the Union as the exclusive bargaining representative of its employees and that it continue in full force and effect the most recent collective agreement between it and the Union, that it con- tinue bargaining collectively with the Union concerning the terms and conditions of any new contract to supersede this existing one," and that if agreement be reached that it em- body such agreement in writing, and that in the meantime it be ordered not to vary or abandon such benefits it may have given its employees in the most recent contract executed between the parties.'0 18 NLRB v Express Publishing Co, 312 U S 426, 437 19 Tidewater Express Lines, Inc, 142 NLRB 1111, 1122 (1963). 20 The Bassick Company, Spring Valley Division, a division of Stewart- Warner Corporation, 127 NLRB 1552 (1960) GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME 87 I shall recommend that with respect to the employees whom Respondent has refused to reinstate because they en- gaged in a strike in protest of its unlawful refusal to bargain, that these employees be offered reinstatement to their former or substantially equivalent positions, without prejudice to seniority or any other rights and privileges, terminating if necessary, any person hired since June 22, 1970, the date upon which the strike of the employees became an unfair labor practice strike, to make room for them ,21 and that they be made whole from December 5, 1970, the date on which the strike was abandoned by the Union and upon which reinstatement was sought in their behalf.22 The back- pay to which they arrentitled shall be computed in the cus- tomary manner, with interest at 6 percent per annum.23 It will also be recommended that Respondent post appropriate notice of compliance with the Board's Order. Upon the foregoing findings of fact; conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: ORDER 14 Grand Lodge of Free and Accepted Masons, Masonic Home, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Local No. 1511 and Council No. 55, American Federation of State, County and Municipal Employees, AFL-CIO, as the exclusive bargaining represen- tative of its employees in the unit found to be appropriate for the purposes of collective bargaining in the contract between the parties most recently in force by imposing unlawful condi- tions upon the execution of a collective agreement, specifi- cally the refusal to rehire strikers, and by withdrawing its recognition of the said Union. (b) Discouraging membership in the aforesaid Union by refusing reinstatement of employees striking in protest of its unlawful conduct because they had engaged in such con- certed activities and to be protected by the National Labor Relations Act, as amended. (c) In any other manner interfering with, restraining, or coercing its employees or unlawfully discriminating against them in the exercise by them of rights guaranteed by Section 7 of the Act. 2. Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Offer reinstatement to all employees who were engaged in a strike against it between February 5, 1970, and December 5, 1970, and whom it has since refused to reinstate, dismiss- ing, if necessary, any individual hired since July 22, 1970. 21 Samuel Levine, doing business as Hock and Mandell Jewelers, 145 NLRB 435, 444 (1963) 22 N.LR.B v Mackay Radio & Telegraph Co, supra, Mastro Plastics Corp v NLR B., supra. 23 F W Woolworth Co., 90 NLRB 289 (1950) 24 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 (b) Make whole the aforesaid striking employees for the period from December 5, 1970, until the date of Respondent's offer of reinstatement, computation to be made in the manner set forth in "The Remedy." (c) Continue to recognize the aforesaid Union as the exclu- sive bargaining representative of all employees in the bargain- ing unit set forth in the contract between the parties most recently in force. (d) Upon request continue to bargain collectively with the aforesaid Union concerning the wages and working condi- tions of its employees, and, if an understanding is reached, embody such understanding in a new signed agreement. (e) Continue in full force and effect such benefits and emoluments as it may have granted its employees during the period of its unfair labor practices and the pendency of these proceedings. (f) Post at its Alma, Michigan, facility the notice attached hereto as "Appendix."25 Copies of said notice on forms provided by the Regional Director for Region 7, after being duly signed by the Respondent, shall be posted immediately upon receipt thereof, and be maintained for a period of 60 consecutive days in conspicuous places. Reasonable steps shall be taken to insure that said notices are not altered, defaced, or covered by any other material (g) Notify the Regional Director for Region 7, in writing, within 20 days from the receipt of this Decision, what steps it has taken to comply therewith. 25 In the event the Board's Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall be changed to read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in Local No. 1511 and Council No. 55, American Federation of State, County and Municipal Employees, AFL-CIO, by refus- ing to reinstate you to your jobs for engaging in con- certed activities protected by the National Labor Rela- tions Act, as amended. WE WILL continue to recognize the aforesaid labor or- ganization as the exclusive bargaining representative of our employees set forth in the contract between our- selves and the Union most recently in force, and upon its request, we will bargain collectively with it, and if we reach an agreement we will put it in writing in the form of a signed contract. WE WILL offer reinstatement to all employees who en- gaged in the strike against us between February 5, 1970, and December 5, 1970, and whose reinstatement has since been refused and, WE WILL dismiss, if necessary, any individual hired since July 22, 1970. WE WILL make whole striking employees for the period from December 5, 1970, until the date upon which we offer you reinstatement to your job. 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL continue in full force and effect any raises or other benefits we have granted since February 5, 1970. WE WILL NOT in any other manner interfere with, re- strain, or coerce any of you or unlawfully discriminate against any of you in the exercise of your rights guaran- teed by the National Labor Relations Act. All of you, our employees, are free to remain, or become, to withdraw from or to refrain from becoming, members of Local No. 1511 and Council No. 55, American Federation of State, County and Municipal Employees, AFL-CIO, or any other labor organization. GRAND LODGE OF FREE AND ACCEPTED MASONS, MASONIC HOME