Gaso Pumps, Inc.

532 GASO PUMPS Gaso Pumps, Inc, and International Association of Machinists and Aerospace Workers, AFL-CIO. Case 16-CA-11310 28 February 1985 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 12 June 1984 Administrative Law Judge Mary Ellen R Benard issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in sup- port of the judge's decision. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions2 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Gaso Pumps, Inc., Tulsa, Oklahoma, its officers, agents, i In sec II,B, of her decision the judge at one point referred to the "events of August 5," when it is clear from the record as well as from the remainder of the judge's decision that the events referred to occurred on 15 August, not 5 August 1983 In sec II,C,2, of her decision the judge stated that "there is no contention that the strike which began August 16 was an economic strike " It is clear from the record and the remain- der of the judge's decision that in fact there is no contention that the strike'was an unfair labor practice strike These inadvertent errors have no effect on our decision In adopting the judge's finding that the Respondent implemented its proposal to limit strikers' reinstatement rights to a period of 6 months, we note that in its 7 September 1983 letter to employees the Respondent stated that it had implemented its strike settlement proposal and that, ac- cordingly, the reinstatement rights of striking employees would be limit- ed to 6 months 2 In adopting the judge's conclusion that the Respondent violated Sec 8(a)(5), (3), and (1) of the Act by insisting to impasse on and implement- ing its proposal to limit the duration of strikers' reinstatement rights to a period of 6 months, we note that the principle relied on by the judge that employees may not be deprived of'statutory rights in the absence of a clear and unmistakable waiver recently was affirmed by the Supreme Court in Metropolitan Edison Co v NLRB, 460 U S 693 (1983) In adopting the judge's conclusions we emphasize our decision is not inconsistent with Eagle Comtromcs, 263 NLRB 515 (1982) In Eagle we held that an employer does not violate the Act by informing employees that in the event of a strike they may be permanently replaced without at the same time informing them of their preferential reinstatement rights We further held that unless the statement of the employer may be fairly understood as a threat of reprisal or is explicitly coupled with such threats it is protected by Sec 8(c) of the Act Nothing in our present decision detracts from our holding or our reasoning in Eagle Members Hunter and Dennis, in adopting the judge's conclusion that the Respondent violated Sec 8(a)(3) of the Act, find it unnecessary to pass on the judge's reliance on that portion of the Board's decision in Interstate Paper Supply Co, 251 NLRB 1423 (1980), in which the Board held that the employer's insistence on limitations on strikers' rights would be inherently destructive of employees' statutory rights In this respect, they note that,'as the judge found, the Respondent has not shown that legitimate and substantial business justifications existed for its limitations on strikers' reinstatement rights successors, and assigns, shall take the action set forth in the Order. DECISION STATEMENT OF THE CASE MARY ELLEN R. BENARD, Administrative Law Judge The original charge in this case was filed on September 27, 1983,1 and amended on November 3, 1983, by Inter- national Association of Machinists and Aerospace Work- ers, AFL-CIO (the Union), against Gaso Pumps, Inc. (the Respondent) On November 10 the complaint issued alleging, in substance, that the Respondent engaged in certain conduct which violated Section 8(a)(1) of the Na- tional Labor Relations Act, that the Union is the certi- fied representative of the Respondent's employees in an appropriate bargaining unit, and that the Respondent had violated Section 8(a)(5) of the Act by insisting to impasse on its proposed strike settlement agreement which would limit economic strikers' reinstatement rights and had vio- lated Section 8(a)(1) and (3) of the Act by limiting the strikers' reinstatement rights. The Respondent has denied the commission of any unfair labor practices. A hearing was held before me at Tulsa, Oklahoma, on December 19 and 20. Following the hearing the General Counsel and the Respondent filed briefs, which have been considered. Upon the entire record in the case and from my obser- vation of the witnesses and their demeanor, I make the following FINDINGS AND CONCLUSIONS I. THE BUSINESS OF THE RESPONDENT The Respondent is an Oklahoma corporation and maintains a facility in Tulsa, Oklahoma, where it manu- factures oil field pumps. During the 12-month period preceding the issuance of the complaint the Respondent, in the course and conduct of its business operations, sold and shipped from its Tulsa facility products, goods, and materials valued in excess of $50,000 directly to points outside the State of Oklahoma. The answer admits, and I find, that the Respondent is an employer engaged in commerce within the meaning of the Act, and I further find that it will effectuate the policies of the Act to assert jurisdiction herein. ii. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background The Union has represented the Respondent's produc- tion and maintenance employees since at least 1951,2 and I All dates herein are 1983 unless otherwise indicated 2 It is undisputed that the appropriate bargaining unit is Continued 274 NLRB No. 76 GASO PUMPS was party to a collective-bargaining agreement with the Respondent which was in effect from August 16, 1980, through August 15, 1983, and thereafter unless either party gave 60 days' notice of its desire to modify or ter- minate the agreement. The contract also provided that, in the event the 60-day notice was to modify rather than terminate, a 5-day notice of intent to terminate must also be given on or after the 55th day of the 60-day period. It is undisputed that the Union gave the Respondent the requisite notice of its desire to modify the agreement. It is also clear that the ensuing negotiations were not successful and that subsequently the Union also notified the Respondent that it intended to terminate the con- tract. On Friday, August 12, the Respondent presented its final offer to the Union. The next day, August 13, there was a union meeting at which the employees voted to reject the Respondent's final offer and to strike beginning August 16 In the meantime, according to the credible testimony of Kevin Cornwell, the Respondent's chief op- erating officer, the Respondent's officials had believed, as a result of the notice of termination, that a strike was likely and had therefore discussed how to continue oper- ations during a strike. Still according to Cornwell, the Respondent had delivery commitments both to custom- ers and to distributors of its products, and therefore in- tended to hire replacements in order to continue both manufacturing and shipping its product during the strike. B. The Alleged Threats to Terminate Strikers 1. The events of August 5 It is undisputed that when the first-shift production employees arrived at the plant the morning of August 15 they were not permitted to go to their regular work sta- tions but were instead told to go to the Respondent's conference room, where they were shown training films.3 The General Counsel's witnesses, all of whom were first-shift employees, testified that on August 15 they saw bulletins posted either in the conference room itself or in hallways which advised them that if they did not come to work the next day they would be terminated. Thus, Gary Evans testified that when he went to get coffee he observed a notice on the wall which stated that the Re- spondent had made its final contract proposal and also said "something to the effect that the employees that were to be at work the next day that did not show up for their scheduled work shift would be terminated " Similarly, Terry Frazier testified that before he went into the conference room he saw a bulletin posted in a hall- way and that the bulletin said that if the employees did not come to work on August 16 they would be "termi- All production and maintenance employees including stockroom, in- spectors, shipping and/or receiving clerks, working foremen and group leaders and janitorial employees, excluding all office and cleri- cal employees, engineering department members, manager , superin- tendent, and all other supervisors as defined in the Act Cornwell testified that the previous Friday there had been an inci- dent involving the sabotage of some machinery in the plant and he was worried that any further such incidents could result in serious injury to employees Cornwell appeared to testify forthrightly and to the best of his recollection about this incident and I credit him 533 nated." William Chapman testified that he saw a docu- ment posted over the coffeepot in the conference room and that the bulletin included the word "terminated" in capital letters and underscored. However, while all three General Counsel witnesses testified emphatically that they observed a notice which included the word "terminated," their testimony was less precise and consistent with respect to other aspects of that notice or the circumstances under which they saw it. Thus, Frazier testified that he did not remember seeing any document over the coffeepot or anywhere else in the conference room, while Evans testified that two copies of the bulletin were in the conference room, one over the coffeepot and one adjoining the wall where the men were seated, and that he saw other copies else- where in the Respondent's facility. Chapman testified that he did not see the bulletin over the coffeepot when he first walked in about 7 a.m., but that he did see a bul- letin there about 8. Chapman also testified that the only bulletin he remembered in the conference room was the one over the coffeepot. Frazier further testified that Cornwell came into the meeting and spoke to the employees and that he said that if they came to work the next day he would be standing at the door to shake their hands and that if they did not come to work they would be terminated. According to Frazier, Cornwell further said that if the employees did not accept the Respondent's final offer they would be terminated. However, Frazier did not know whether Cornwell read anything to the employees or not Evans corroborated Frazier's testimony with respect to Cornwell's comment about shaking the employees' hands if they came to work the next day and further tes- tified that Cornwell came into the conference room and, in the course of a conversation with Chapman, pointed to the bulletin on the wall and said, "Look, the Compa- ny has made its last and final proposal There it is on the wall. . . . If you don't show up for work tomorrow, you'll be terminated." At that point, according to Evans, the conversation "more or less broke off" and Cornwell left the room. Chapman testified that he had called Jim Wagoner, the Union's business representative and, after talking to him, asked that Cornwell come into the room. When Corn- well arrived, according to Chapman, Chapman told him that the men had reported to work and did not want to watch the film, and Cornwell said that the film was man- datory. According to Chapman, in the course of this conversation Cornwell said something to the effect that if the employees did not come to work the next day they would be terminated and at that point other employees as well as Chapman began to argue with him. Contrary to the General Counsel's witnesses, the Re- spondent's witnesses all flatly denied that the word "ter- minated" was ever used in connection with the strikers' employment status. Thus, Cornwell testified that, once the Respondent decided that it would hire replacements in order to continue operating in the event of a strike, management concluded that it would be appropriate to advise the employees that if they struck they might be permanently replaced. In consequence, according to 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Bruce Mamary, the Respondent's production control manager, he looked at some bulletins which another firm, Ramsey-Winch, had used in a similar situation, and used them as a basis for the bulletin the Respondent pre- pared for its employees. Cornwell, corroborated by Per- sonnel Manager Sharon Lawrence and David Regland, who is apparently a supervisor, testified that after Mamary consolidated the Ramsey-Winch documents into one notice for the Respondent's use he gave it to Corn- well, who read it at a meeting of supervisors about 6 the morning of August 15 and made some changes at that time. Cornwell and Lawrence further testified that after Cornwell read the bulletin to the supervisors he gave it to Lawrence and asked her to retype it and post it. Cornwell also testified that while the first-shift em- ployees were in the conference room a supervisor told him that one of the employees had "more or less" taken over the meeting so Cornwell went to the conference room to ask the employees to watch the films. However, according to Cornwell, his plea was unsuccessful and so he went to Mamary's office and told Mamary and Frank Wolfe, the Respondent's attorney, who was present at the time, that he did not think it made sense to keep the employees there and that he wanted to read them the bulletin and then let them leave, although they would be paid for the full day Consequently, according to Corn- well, he went back to the conference room, read the bul- letin, and pointed to the copy posted over the coffeepot, telling the employees they could read it for themselves Cornwell flatly denied that he ever told any of the em- ployees that if they joined the strike they would be ter- minated Cornwell's testimony as to what occurred in the meet- ing with the first-shift employees was corroborated by Lawrence and Regland.4 In addition, Connie Mabes, a manufacturing engineer employed by the Respondent in a nonbargaining unit position, and Billy Jack Vinyard, a technical service engineer whose position is also outside the unit, both testified that they were present when Cornwell read the bulletin to the first-shift employees and that Cornwell said that those employees who joined the strike would be permanently replaced, but that he did not say that anyone would be terminated. According to Cornwell, Regland, and Lawrence, the bulletin which was posted and which Cornwell later read to the em- ployees was on the Respondent's letterhead and con- tained the following text: NOTICE: THE COMPANY HAS MADE ITS FINAL OFFER FOR A CONTRACT TO THE UNION. GASO PUMPS WILL CONTINUE TO OPER- ATE THIS FACILITY ON A FULL TIME BASIS FOR THE FORESEEABLE FUTURE, WITH OR WITHOUT AN APPROVED CON- TRACT. IN THE EVENT OF A STRIKE, STRIKING EMPLOYEES WILL BE PERMANENTLY RE- PLACED. 4 Mamary was not present in the conference room WITHOUT A CONTRACT THE COMPANY IS NOT ALLOWED UNDER LAW TO CON- TINUE TO REQUIRE UNION MEMBERSHIP AS A CONDITION OF EMPLOYMENT. THE COMPANY WILL NOT DEDUCT UNION DUES FROM YOUR PAYCHECK. KEVIN CORNWELL5 2. Analysis and conclusions The complaint alleges that the Respondent, both orally and in the posted bulletin, threatened employees that they would be discharged if they engaged in a strike. However, I credit the Respondent's witnesses as to what Cornwell said and did and the wording of the bulletin. The General Counsel's witnesses did not appear to me to be entirely candid in their insistence that Cornwell told them that they would be "terminated" if they joined the strike, that the posted bulletin also used that word, and that they had never seen a bulletin with the text quoted above prior to the investigation of the instant charge. In contrast, the individuals who testified on behalf of the Respondent impressed me as testifying forthrightly and exhibiting accurate recollection. Accordingly, I find that Cornwell read the bulletin quoted above to the employ- ees and that he did not tell them that they would be ter- minated for striking. I shall therefore recommend that this allegation of the complaint be dismissed.6 C The Respondent 's Proposal on Reinstatement of Strikers 1. Facts The strike began on August 16. On August 19 the Re- spondent sent the employees a letter, over the signature of Tommy Flanagan, its chairman of the board, advising them that the Respondent would implement its final offer to the Union on August 21 and would also begin hiring permanent replacements. This final offer provides, in sec- tion 9.8, that "The recall rights of employees on layoff status are superior to reinstatement rights of strikers," and that laid-off employees must notify the Respondent by certified mail every 90 days of their desire to be re- called and "their willingness and ability to timely report for work upon recall without delay." Section 9 4(c) pro- vides that an employee's seniority is terminated by "Fail- ure to comply with Section 9.8 of this Article or [a] layoff in excess of six (6) months or [a] layoff beyond the length of service whichever is less." The strike ended on August 25 when the strikers made an unconditional offer to return to work. However, by that time an unspecified number of replacements had been hired. It is not clear how many of the former strik- 5 Mabes and Vinyard were not asked to identify any specific document as that which was read and posted, and, as noted above, Mamary was not present in the conference room when Cornwell read the bulletin Howev- er, Mamary did identify the bulletin quoted above as that which he later saw posted on a wall near the conference room The General Counsel's witnesses all testified that they had not seen the above-quoted language prior to the investigation of the instant charge 6 There is no contention that the bulletin as quoted above was coer- cive GASO PUMPS ers were still unreinstated as of the date of the instant hearing. On August 29 the Respondent proposed a strike settle- ment which provided, in pertinent part, that "Unreinstat- ed strikers (with reinstatement consideration rights) will be governed by Sections 9 4(c) and 9.8" of the Respond- ent's final offer, which had been implemented August 21. Thus, as Cornwell advised the employees by letter dated September 7, "you now have reinstatement consideration rights for six months following the day the strike ended on August 25, 1983." The strike settlement offer was not accepted by the Union, but the parties are in agreement that there was bargaining to impasse on the issue of the period of time for which the preferential hiring list would be maintained. 2. Analysis and conclusions The General Counsel contends that the Respondent could not lawfully terminate the strikers' reinstatement rights, even after bargaining to impasse on the issue.7 The Respondent contends, however, that these rights are a mandatory subject of bargaining and that once it bar- gained to impasse about the matter it was entitled to im- plement its proposal. There is, of course, no question that the Respondent was within its rights in hiring replacements in order to continue operations and, as there is no contention that the strike which began August 16 was an economic rather than an unfair labor practice strike, the Respond- ent was privileged to consider the replacements as per- manent. However, it is also clear that the strikers re- tained their status as employees within the meaning of the Act throughout the strike and, in consequence, once they made an unconditional offer to return to work, they were entitled to an offer of reinstatement if they had not been permanently replaced and that the right to rein- statement could be defeated only by a showing of "legiti- mate and substantial business justifications."8 In 1949, in its decision in Tidewater Associated Oil Co., 85 NLRB 1096, the Board stated its reluctance "to de- prive employees of any of the rights guaranteed them by the Act in the absence of a clear and unmistakable show- ing of a waiver of such rights."9 The case involved the issue of whether a management rights' clause privileged the employer's refusal to bargain over pensions. Howev- er, the Board's requirement that a waiver of employees' rights be "clear and unmistakable" was not limited to bargaining rights but applied to any of the rights guaran- teed by the Act. There is no question that some of the rights which arise under the Act may be waived by employees' bar- gaining agents. Thus, for example, it has long been held that a representative may waive the right to engage in an economic strike. 10 However, although certain statutory 7 The case was not litigated on the theory that the Respondent unlaw- fully gave laid-off employees greater reinstatement rights than former economic strikers, nor is there any evidence that laid-off employees were in fact recalled in preference to former strikers 8 NLRB v Fleetwood Trailer Co, 389 US 375, 381 (1967), Laidlaw Corp, 171 NLRB 1366 (1968) 9 85 NLRB at 1098 10 Dorsey Trailers, 80 NLRB 478, 480 (1948) 535 rights may be waived by the bargaining representative, an employer nonetheless is not entitled to insist to im- passe that the union do so Thus, for example, an em- ployer may lawfully propose that as part of the overall agreement the union withdraw unfair labor practice charges, but may not condition execution of a collective- bargaining agreement on such a waiver. i i Other Section 7 rights are not subject to waiver by the bargaining representative. Thus, for example, the Su- preme Court held that no-distribution clauses which unduly inhibit employees in the exercise of their basic Section 7 rights may not lawfully be included in collec- tive-bargaining agreements. 12 It is clear from Fleetwood and Laidlaw, both supra, that the right of replaced economic strikers to be placed on a preferential hiring list once they have made an uncondi- tional offer to return to work is a basic right guaranteed by Section 7 of the Act. It is not so clear, however, under what circumstances that right can be limited by an agreement between the employer and the strikers' bar- gaining representative. In United Aircraft Corp. (Pratt & Whitney Division), 192 NLRB 382, 387-388 (1971), a strike settlement agreement gave economic strikers pref- erential rights to be hired for a period limited to 4-1/2 months after termination of the strike. The Board held that the "public policy . embodied in the Act . . . favors enforcement of voluntary agreements settling strikes," and that, therefore, employers and unions may enter into agreements which provide to former strikers less than the full range of rights specified in Fleetwood and Laidlaw. However, the parties had entered into the strike settlement agreement in 1960 and Laidlaw was not decided until 1968, the Board found that at the time of the agreement the parties could reasonably have under- stood the rule to be that an economic striker's right to reinstatement was dependent on whether a vacancy exist- ed as of the time he offered to return, and that the em- ployer was not obligated to place strikers' names on a preferential hiring list. Accordingly, the Board found that the agreement gave strikers preferential hiring rights greater than those required under that view of the law, and to some extent relied on this finding in concluding that the parties' agreement should be honored. 13 In the instant case the issue is not whether an agree- ment between the Union and the Respondent should be honored, but whether the Respondent was entitled to insist to impasse on a limitation of the strikers' rights to be placed on a preferential hiring list. Neither the parties' briefs nor my own research has disclosed any cases di- rectly on point with respect to this issue. However, vari- ous Board and court decisions do offer some guidance. Thus, for example, in American Cyanamid Co., 235 NLRB 1316 (1978), the respondent insisted, as a condi- 11 Laredo Packing Co, 254 NLRB 1, 19 (1981) 12 NLRB v Magnavox Co of Tennesssee, 415 U S 322, 325 (1974) See also General Motors Corp, 211 NLRB 986 (1974) 13 The United States Court of Appeals for the Second Circuit enforced the Board's Order with respect to this aspect of the case, but did not pass on the waiver issue, finding that Fleetwood and Laidlaw did not apply ret- roactively to 1960 Machinists Lodges 743 & 1746 v United Aircraft Corp, 534 F 2d 422, 451 (2d Cir 1975) See also the Board's decision on remand, 247 NLRB 1042 (1980) 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion of reinstating unfair labor practice strikers who had made an unconditional offer to return, that the union agree to a strike settlement agreement which would waive certain statutory rights, including some bargaining rights and the employees' rights to redress under the Act. The administrative law judge, affirmed by the Board, found that by this insistence the respondent vio- lated Section 8(a)(1), (3), and (5) of the Act 14 Similarly, in Interstate Paper Supply Co., 251 NLRB 1423 (1980), the respondent insisted during contract negotiations on a proposal that strikers would not accrue seniority for the period they were on strike The Board found this insist- ence unlawful, on grounds that, inasmuch as the seniority of nonstrikers would consequently increase relative to that of the strikers, the latter would be more vulnerable to layoff or discharge due to a reduction in force, and would thus be "penalized for their strike activity in a manner which could affect their tenure of employ- ment."15 The Board further found that no showing of antiunion motivation was required as a prerequisite to a finding that the Respondent's conduct was unlawful, on grounds that implementation of the "proposal would be inherently destructive of important employee rights due to the potential impact such a plan would have on the tenure of the strikers' employment relationship with Re- spondent," 16 citing NLRB v. Great Dane Trailers, 388 U.S. 26 (1967). Accordingly, the Board found that imple- mentation of the respondent's proposal would have vio- lated Section 8(a)(3) of the Act, and insisting on such a proposal violated Section 8(a)(5) and (1) of the Act.17 I view American Cyanamid and Interstate Paper as standing for the proposition that a party is not entitled to bargain to impasse on proposals to limit rights of former strikers in matters connected with their employment. Al- though these cases do not specifically deal with a limita- tion on the length of time former economic strikers are entitled to remain on a preferential hiring list, the same principle would seem to be applicable to the issue in the instant case, for it is obvious that such a limitation would have a substantial impact on the tenure of the strikers' employment relationship This view is further supported by Brooks Research & Mfg., 202 NLRB 634 (1973) In that case, the respondent unilaterally decided that the preferential hiring list would be maintained for 1 year following the former strikers' applications for reinstatement. The Board rejected the re- spondent's contention that a time limit should be placed on the strikers' reinstatement rights, finding that such a limitation was contrary to the principles of Fleetwood and Laidlaw. The Board further distinguished United Aircraft, supra, cited by the Respondent, on grounds that in the latter case the parties had reached agreement concerning 14 233 NLRB at 1324-25 11 251 NLRB at 1424 18 Ibid 17 Cf Gehnrich & Gehnrich, 258 NLRB 528 (1981), in which the Board found that the respondent did not act unlawfully in proposing that strik- ers not accrue seniority for the period they were on strike or receive wage increases granted to nonstriking employees during that period, on grounds that the respondent did not insist on either proposal and, indeed, subsequently withdrew them In the instant case, of course, the Respond- ent insisted to impasse on the limitation it had proposed on the strikers' rights to reinstatement the duration of the strikers' recall rights 18 I note, as the Respondent points out, that in Brooks the Board found that the respondent violated Section 8(a)(5) of the Act by failing to bargain before deciding to limit the rein- statement rights of the former strikers, whereas in the in- stant case the Respondent and the Union bargained to impasse on the issue. However, I also note that in Brooks the Board did not indicate that the respondent was enti- tled to bargain to impasse, but only that, while the termi- nation of the hiring list violated Section 8(a)(1) and (3) the failure to bargain before taking the action additional- ly violated Section 8(a)(1) and (5).19 On the basis of the foregoing, I conclude that the Re- spondent has not shown the "legitimate and substantial business justifications" required by Fleetwood for limiting the strikers' rights to reinstatement and that it was not entitled to bargain to impasse over its proposal to limit these rights. Accordingly, I conclude that by limiting the strikers' preferential hiring rights to 6 months the Re- spondent violated Section 8(a)(1) and (3) of the Act and by insisting to impasse on imposing this limitation the Respondent violated Section 8(a)(5) and (1) of the Act. On the basis of the above findings of fact and the entire record in this case, I make the following CONCLUSIONS OF LAW 1 Gaso Pumps, Inc, is an employer engaged in com- merce within the meaning of Section 2(2), (6), and (7) of the Act. 2. International Association of Machinists and Aero- space Workers, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. All production and maintenance employees includ- ing stockroom, inspectors, shipping and/or receiving clerks, working foremen and group leaders and janitorial employees, excluding all office and clerical employees, engineering department members, manager, superintend- ent, and all other supervisors as defined in the Act, con- stitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act 4. The Union has, since at least August 16, 1951, been the representative for the purposes of collective bargain- ing of the employees in the unit described above. 5. By limiting the rights of economic strikers (who have made an unconditional offer to return to work) to be placed on a preferential hiring list for 6 months the Respondent has engaged in unfair labor practices within the meaning of Sections 8(a)(1) and (3) and 2(6) and (7) of the Act 6. By insisting to impasse on its proposal to limit the reinstatement rights of economic strikers who have made an unconditional offer to return to work the Respondent 18 202 NLRB at 637 19 A finding that an employer violates Sec 8(a)(5) by failing to bargain over an action does not suggest that the action would have been lawful had there been bargaining In Aero-Motive Mfg Co, 195 NLRB 790 (1972), the Board found that the respondent violated Sec 8(a)(1) and (3) of the Act by paying a bonus to employees who crossed the picket line during a strike, and further found that even though the bonus was unlaw- ful the respondent was nonetheless obligated to bargain about giving it GASO PUMPS has engaged in unfair labor practices within the meaning of Sections 8(a)(5) and ( 1) and 2(6) and (7) of the Act. 7 A preponderance of the credible evidence does not establish that the Respondent has otherwise violated the Act THE REMEDY Having found that the Respondent has engaged in unfair labor practices, I shall recommend that it be or- dered to cease and desist therefrom and to take certain affirmative action, including the posting of the customary notice, designed to effectuate the purposes of the Act. Having found that the Respondent violated Section 8(a)(1) and (3) of the Act by imposing limitations on the length of time former strikers would remain on a prefer- ential hiring list, I shall recommend that the Respondent be ordered to rescind that limitation and to reinstitute a proper preferential hiring list. I shall further recommend that, in accord with the principles of Fleetwood and Laid- law, as vacancies occur, whether due to the departure of employees, increases in the work force, or otherwise, the Respondent be ordered to offer those positions to the former strikers qualified for reinstatement unless they have obtained other regular and substantially equivalent employment. If there are any former strikers who would have been recalled but for the Respondent's unlawful ter- mination of the preferential hiring list, I shall recommend that they be reinstated to the positions in which they would have been placed had they been recalled, without prejudice to their seniority or other rights and privileges, and made whole for any loss of earnings they may have suffered by reason of the discriminatory failure to rein- state them, in accordance with F. W. Woolworth Co., 90 NLRB 289 (1950). Interest is to be added to the amount of backpay and is to be computed in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977).20 Having found that the Respondent unlawfully bar- gained to impasse over its proposal to limit the reinstate- ment rights of the former strikers, I shall recommend that it be ordered to cease and desist from such conduct On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed21 ORDER The Respondent, Gaso Pumps, Inc., Tulsa, Oklahoma, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Terminating the preferential hiring rights of former economic strikers who have unconditionally applied for reinstatement. (b) Bargaining to impasse over a proposal to limit the preferential hiring rights of former strikers who have un- conditionally applied for reinstatement. 20 See generally Isis Plumbing Co, 138 NLRB 716 (1962) 21 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 537 (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2 Take the following affirmative action which is nec- essary to effectuate the policies of the Act. (a) Rescind its termination of the preferential hiring rights of former economic strikers who have uncondi- tionally applied for reinstatement and reinstitute and abide by a preferential hiring list. (b) Offer immediate and full reinstatement with back- pay as set forth in the section of this Decision entitled "The Remedy" to any former striker who would have been recalled but for the Respondent's unlawful conduct. (c) Preserve and, on 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 nec- essary to analyze the amount of backpay due under the terms of this Order. (d) Post at its Tulsa, Oklahoma facility and mail to each of the unreinstated strikers copies of the attached notice marked "Appendix "22 Copies of the notice, on forms provided by the Regional Director for Region 16, after being signed by the Respondent's authorized repre- sentative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other materi- al. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 22 If this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the Na- tional Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the Nation- al Labor Relations Board " APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The National Labor Relations Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT unlawfully terminate the preferential hiring rights of former economic strikers who have un- conditionally applied for reinstatement. WE WILL NOT bargain to impasse with International Association of Machinists and Aerospace Workers, AFL-CIO, or any other labor organization, over a pro- posal to limit the preferential hiring rights of former strikers who have unconditionally applied for reinstate- ment. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT In any like or related manner interfere WE WILL offer immediate and full reinstatement with with, restrain, or coerce you in the exercise of the rights backpay plus interest to any former striker who would guaranteed you by Section 7 of the Act. have been recalled but for our unlawful conduct WE WILL rescind our termination of the preferential hiring rights of former economic strikers who have un- GASO PUMPS, INC conditionally applied for reinstatement and reinstitute and abide by a preferential hiring list.