American Gypsum Co.

100 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD American Gypsum Company and United Cement, Lime and Gypsum Workers International Union, Local 419, AFL-CIO. Cases 28-CA- 5961 and 28-CA-6174 31 July 1987 DECISION AND ORDER BY MEMBERS JOHANSEN, BABSON, AND STEPHENS On 28 July 1981 Administrative Law Judge Gordon J. Myatt issued the attached decision. The General Counsel and the Respondent filed excep- tions and supporting briefs, and the Respondent also filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. 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 conclusions, as modified, but not to adopt the rec- ,ommended Order. 1. The Board recently announced in Indiana & Michigan Electric Co., 284 NLRB 53 (1987), a clari- fication of the scope of the postcontract expiration duty to arbitrate grievances. The Board held there was no statutory duty to adhere to an arbitration procedure absent a contractual commitment to do so. The Board also held, however, that an employ- er violates Section 8(a)(5) of the Act when it en- gages in conduct tantamount to a wholesale repudi- ation of the limited postcontract duty to arbitrate. Thus, the question before us is whether the Re- spondent's refusal to arbitrate grievances under the expired contract constitutes a violation of the Re- spondent's duty to bargain under Section 8(a)(5) of the Act. The refusal embraces: (1) the Respond- ent's statement to the Union that it would not arbi- trate any grievances arising after 11 June 19801 (when the parties reached impasse and ceased ex- tending the contract on a day-to-day basis) and its failure to give individualized reasons for its refusal to arbitrate the grievances, and (2) the Respond- ent's refusal to arbitrate each grievance. The griev- ances that the Union filed and/or attempted to file included the discharge of employee Jaramillo on 23 June for alleged picket line misconduct during the June economic strike, the discharge of employee Lagarreta on 25 June for allegedly pushing an emergency stop button on the knife, the discharge of employee Valdez on 30 June for allegedly pounding the knife control panel with his fist; and 1 All dates are in 1980, unless stated otherwise the discharge of the entire swing shift on 30 June allegedly for poor work efficiency. The Respondent's initial position that the June strike relieved it of all obligations to honor the terms of the expired contract was evidenced by statements of the Respondent's president, Ted Gayock, who was vice president and general man- ager at the time of the negotiations, and Vice Presi- dent of Manufacturing Marvin Reiff. When the em- ployees ended their strike and returned to work on 23 June, Gayock and Reiff stated there was no contract between the parties and that the Respond- ent did not have to honor any of the terms of the expired agreement except when it chose to do so. The Respondent's refusal to accept grievances and its reply to the request for time off for union busi- ness were consistent with this position. In regard to the time off request, Gayock stated,"[C]ompliments of the strike, you have no contract to implement time off for official [u]nion business." The Re- spondent maintained this position until 7 July when it agreed to accept and process grievances arising after 11 June, but refused to apply the arbitration provisions. The Respondent did not limit its refusal to arbitrate to a particular grievance or class of grievances. Accordingly, we find that the Re- spondent's entire course of conduct amounted to a wholesale repudiation of its contractual obligation to arbitrate. We conclude, therefore, that the Re- spondent violated Section 8(a)(5) and (1) of the Act by refusing to apply the arbitration provisions to grievances arising after 11 June. Indiana & Michi- gan Electric Co., supra. We adopt the judge's conclusion that the Re- spondent violated Section 8(a)(5) and (1) by refus- ing to accept and process any grievances from 11 June to 7 July. On 7 July the Respondent changed its posture and agreed to process the grievances but continued to refuse to arbitrate. Thus, the issue of whether the contractual commitment to arbitrate the discharge grievances extends beyond the con- tract under Nolde Bros. Y. Bakery Workers Local 358, 430 U.S. 243 (1977), is presented. Nolde com- pels arbitration of postexpiration grievances only where the grievances "arise under" the expired contract, and the contract does not negate express- ly or by clear implication the presumption favoring postexpiration arbitration of such disputes. We find that the expired contract here does not negate ex- pressly or by clear implication the presumption fa- voring survival of the arbitration commitment. The postexpiration grievances and asserted con- tract rights have been described above. Having ex- amined them, we conclude that the rights invoked in each grievance do not "arise under" the expired contracts within the meaning of Nolde. As in Indi- 285 NLRB No. 16 AMERICAN GYPSUM CO. ana & Michigan, all the grievances were triggered by events or conduct that occurred after the expi- ration of the contract. None or the rights invoked was worked for or accumulated during the term of the contract, and there is no other indication that the parties contemplated that such rights could ripen or remain enforceable even after the contract expired. Indiana & Michigan Electric Co., 284 NLRB 53, 60-61 (1987). We therefore conclude that, in the circumstances here, the Respondent had no contractual obligation to arbitrate any of the postexpiration grievances.2 2. The judge found that the Respondent's presi- dent, Ted Gayock, admitted filling the bundler and inside cleaner positions in mid-October 1980 with- out resorting to the bidding procedure contained in the expired agreement. In adopting the judge's finding that the Respondent thereby violated Sec- tion 8(a)(5), we rely on the following analysis. When the Union rejected the Respondent's final offer of 4 June and struck on 11 June, the parties had reached a genuine impasse in negotiations. It is well settled that once an impasse is reached "an employer can only make unilateral changes in working conditions consistent with its rejected offer to a union." Rockland Lake Manor, 263 NLRB 1062, 1070 at fn. 29 (1982); Caravelle Boat Co., 227 NLRB 1355 (1967); Royal Himmel Distilling Co., 203 NLRB 370 In. 3 (1973). See Stone Boat Yard, 264 NLRB 981 (1983). Thus, when the employees returned to work on 23 June, the Respondent was free to implement the terms of its final offer or, where it chose not to do so, to continue to give effect to the terms of the expired agreement. The Respondent did not act consistently with the pro- cedure contained in its final offer when it filled the job vacancies. Therefore, the Respondent was re- quired to comply with the established bidding pro- cedure contained in the 1977-1980 expired agree- ment when it filled the bundler and inside cleaner positions. By filling these positions without em- ploying the established bidding procedure in the expired contract, the Respondent unilaterally changed the terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act.3 2 Consistent with Member Johansen's partial dissent in Indiana & Michigan Electric Co., supra at 63, he concurs in the majority's conclusion that the Respondent violated Sec 8(a)(5) of the Act by repudiating its contractual obligation, to arbitrate after the contract expired He would find, however that the grievance disputes "arguably" were over provi- sions of the expired contract and thus "arose under" the contract within the meaning of Nolde and would order the Respondent to arbitrate the grievances, on request 3 In adopting the judge's finding that, in violation of Sec. 8(a)(5) and (1) of the Act, the Respondent unilaterally departed from recall-from- layoff procedures when, beginning on 3 June 1980, it recalled employees from a December 1979 economic layoff, we are aware of the evidence- on which the Respondent relies in its exception to this finding-that the Respondent had, on occasions in the past, used the telephone rather than 101 3. In concluding that the strike, which began on 8 July, was an unfair labor practice strike, the judge found that when the employees voted to engage in the second strike the Respondent's refus- al to apply the arbitral process to the grievance dis- putes involving the discharges of the union leaders and the entire swing shift crew was a contributing cause to the decision to strike. From the testimony of Kent Weaver, International vice president of the Union, and Charles Steele, employee and the Union's recording secretary, and Steele's notes, it is evident that in addition to the parties' failure to reach agreement on economic terms, Weaver told the employees of the unilateral changes the Re- spondent had made since 23 June, specifically in- cluding the scheduling change, the Respondent's response to Jaramillo's discharge grievance, which stated there was no mechanism to file a grievance "compliments of . . . [the] strike", and the Re- spondent's refusal to arbitrate disputes, We there- fore-find that in addition to the Respondent's refus- al to arbitrate grievance disputes, the Respondent's unlawful unilateral changes and its refusal to proc- ess grievances also contributed to the employees' decision to strike. Accordingly, we conclude that the 8 July strike was an unfair labor practice strike. 4. Having concluded that the strike commencing on 8 July was an unfair labor practice strike, we turn to the striking employees' reemployment rights. The judge 'found that the Respondent had a duty to reinstate the striking employees, other than those disqualified by serious picket line miscon- duct,4 to their former or substantially equivalent positions. We agree with the judge's finding that the Respondent has a duty to reinstate the striking employees to their former positions. Only if those positions no longer exist, however, must the Re- spondent offer the striking employees reinstatement to substantially equivalent positions. This standard certified mail to contact employees for recall . We note, however, that certified mail is the means prescribed both by the 1977- 1980 collective- bargaining agreement (which the parties had agreed to extend, on a day- to-day basis, beyond its 31 March 1980 expiration date, while they nego- tiated for a new agreement) and by the Respondent's final contract offer communicated to the Union and the employees on 17 June Moreover, there was no evidence of what procedure the parties had followed in the past if a high-seniority employee such as Owen could not be reached by telephone In the absence of evidence of a well-established practice, ac- ceptable to both parties, of acting in derogation of the written agreement concerning notice even in situations such as this, we agree with the judge that the Respondent violated Sec 8 (a)(5) and (1) through its failure to give Owen notice of his recall by certified mad. 4 The alleged strike misconduct of Steve Chavez has been evaluated under Clear Pine Mouldings, 268 NLRB 1044 (1984), and we find that under all the circumstances, his conduct was sufficient to justify his dis- charge and to disqualify him from reinstatement The General Counsel has alleged provocation as a defense Given the Judge's resolution of con- flicts of testimony concerning the two incidents in which Chavez was in- volved, there was no provocation Therefore, we find it unnecessary to resolve the issue left open in Clear Pine as to whether provocation can ever be a defense- 102 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD is correctly applied in the judge's remedy except as to previously reinstated employees.5 Accordingly, we conclude that to the extent that reinstated em- ployees were not reinstated to their former posi- tions, the Respondent must offer them immediate reinstatement to their former positions and, only if those positions no longer exist, then the Respond- ent must offer those employees reinstatement to substantially equivalent positions. ORDER6 The National Labor Relations Board orders that the Respondent, American Gypsum Company, Al- buquerque, New Mexico, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Refusing to bargain with United Cement, Lime' and Gypsum Workers International Union, Local 419, AFL-CIO as the exclusive representa- tive of the employees in the appropriate bargaining unit by generally repudiating any obligation to ar- bitrate grievances arising after contract expiration and by refusing to fully comply with the grievance procedure established in the 1977-1980 collective- bargaining agreement after its expiration until a new contract took effect. (b) Unilaterally changing the method of recalling laid-off employees without prior notice to, and bar- gaining with, the Union. (c) Unilaterally changing the method of altering the work schedule of employees without prior notice to, and bargaining with, the Union. 5 In this connection, the judge found that James Ballog, who had worked for the Respondent as a part-time machinist while employed else- where for another company, was offered a position as a full-time maclun- ist. Although the judge inadvertently failed specifically to find that the poststrike position, which Ballog refused to accept, was not substantially equivalent to his prestrike position, it is clear from the language of the judge's recommended remedy that he found that Ballog was entitled to be reinstated to the position of part-time machinist. The' judge also set forth evidence that Ramon Garduna, a 63-year old employee who had been an oiler, was reinstated as a calciner helper at lower pay Garduna characterized his new position as more strenuous and arduous. The Re- spondent's vice president, Marvin Reiff, admitted that the oiler's job in- volved lighter work and that Garduna was assigned to the new post be- cause his old one had been filled by a strike replacement. Although the judge made no specific finding as to whether Garduna was reinstated to a substantially equivalent position, it is clear from the foregoing uncontro- verted evidence that Garduna's poststrike position was more difficult than his prestrike job of oiler. Accordingly, we find that par. 2(c) of the recommended Order applies to Ballog and Garduna as well as to all other employees, other than those disqualified for engaging in serious picket-line conduct, who were not reinstated to their former or substan- tially equivalent positions. 6 We find in agreement with the General Counsel that the recommend- ed Order should be revised to include appropriate remedies for the fol- lowing unlawful conduct of the Respondent with respect to the continu- ing terms of its expired collective-bargaining agreement with the Union: (a) altering the work schedule of employees without regard to its notice requirements, (b) unilaterally departing from its provisions by attempting to recall employees from layoff status without regard to seniority and without using certified mail, and (c) failing to observe its bidding proce- dures in filling job vacancies We shall modify the Order accordingly (d) Unilaterally altering the prevailing terms and conditions of employment by refusing to grant union representatives time off for official union business on proper notification without prior notice to, and bargaining with, the Union. (e) Unilaterally modifying the prevailing terms and conditions of employment by filling vacancies without regard to seniority and the bidding proce- dures. (f) Refusing to reinstate striking employees, on an unconditional offer to return to work to their former positions or, if those positions no longer exist, to substantially equivalent positions. (g) In any like or related manner interfering with, restraining, or coercing employees in the ex- ercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action neces- sary to effectuate the policies of the Act. (a) On request, bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit with respect to rates of pay, wages, hours of em- ployment, and other terms and conditions of em- ployment. The appropriate bargaining unit is: All production, maintenance and shipping em- ployees employed by American Gypsum Com- pany at its Albuquerque, New Mexico, loca- tion excluding all other employees, office cleri- cal employees, truck drivers, guards, and su- pervisors as defined in the Act. (b) Notify the Union that the Respondent will, on request, process any grievances arising after the 1977-1980 contract expired and before the new contract took effect. (c) On application, offer to any employee who participated in the strike commencing 8 July 1980, and who is not disqualified by reason of serious picket line misconduct, full and immediate rein- statement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion without impairing the employee's seniority or other rights and privileges, dismissing, if necessary, any person hired as a replacement on or after 8 July 1980. Further, make whole any such employee for any loss of earnings suffered by reason of the Respondent's refusal, if any, to timely reinstate him, with interest on any amounts due paid in the manner prescribed in New Horizons for the Retard- ed.7 ° In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest will be computed at the "short-term Fed- eral rate" for the underpayment of taxes as set out in the 1986 amend- ment to 26 U.S.C § 6621. Interest on amounts accrued prior to 1 January 1987 shall be computed in accordance with Florida Steel Corp., 231 NLRB 651 (1977). AMERICAN GYPSUM CO. (d) Pay premium wages to those employees working on 27 June 1980, when their work sched- ule was altered without regard to the notice re- quirement contained in the collective-bargaining agreement, plus interest. (e) Make whole Henry Owen, and any other em- ployees who suffered any loss of earnings by reason of the Respondent's departure from the con- tractually prescribed method of recalling laid-off employees to work, plus interest. In addition, recall Owen and other laid-off employees pursuant to the contractually prescribed method when vacancies are available. (f) Make whole any employees who suffered any loss of earnings as a result of the Respondent's fail- ure to fill job vacancies according to seniority and the bidding procedures prescribed in the collective- bargaining agreement, plus interest. (g) Remove from its files the disciplinary warn- ing of Charles, Steele dated 13 October 1980, and notify him that this has been done and that the Re- spondent will make no future reference to it. (h) Preserve and, on request, make available to the Board or its agents for examination and copy- ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order. (1)i Post at its Albuquerque, New Mexico facility copies of the attached notice marked "Appendix."' Copies of the notice on forms provided by the Re- gional Director for Region 28, after being signed by Respondent's authorized representative, Shall be posted by the Respondent immediately upon re- ceipt and maintained for 60 consecutive days in conspicuous places including all places where no- tices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to ensure that said notices are not altered, defaced, or covered by any other material. (j) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 8 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 Nation- al Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 103 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. Section 7 of the Act gives employees these rights. To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro- tection To choose not to engage in any of these protected concerted activities. WE WILL NOT refuse to bargain with United Cement, Lime and Gypsum Workers International Union, Local '419, AFL-CIO as the exclusive rep- resentative of the employees in the appropriate bar- gaining unit by generally repudiating any obliga- tion to arbitrate grievances arising after contract expiration and by refusing to fully comply with the grievance procedure established in the 1977-1980 collective-bargaining agreement after its expiration until a new contract took effect. WE WILL NOT unilaterally change the method of recalling laid-off employees without prior notice to and bargaining with the Union. WE WILL NOT unilaterally alter the prevailing terms and conditions of employment by changing the method of rescheduling employees' work schedules without prior notice to and bargaining with the Union. WE WILL NOT unilaterally alter the prevailing terms and conditions of employment by refusing, after proper notification, to grant union representa- tives time off for official union business without prior notice to and bargaining with the Union. WE WILL NOT unilaterally change the prevailing terms and conditions of employment by filling va- cancies without regard to seniority and the prevail- ing bidding procedures without prior notice to and bargaining with the Union. WE WILL NOT refuse to reinstate striking em- ployees, having received on their behalf an uncon- ditional offer to terminate the strike and return to work, to their former positions or, if those posi- tions no longer exist, to substantially equivalent po- sitions, dismissing, if necessary, any replacements hired on or after the commencement of the strike on 8 July 1980. 104 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain 'with United Cement, Lime and Gypsum Workers International Union, Local 419, AFL-CIO, as the exclusive rep- resentative of all the employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. The bargaining unit is: All production, maintenance and shipping em- ployees employed by American Gypsum Com- pany at its Albuquerque, New Mexico, loca- tion excluding all other employees, office cleri- cal employees, truck drivers, guards, and su- pervisors as defined in the Act. WE WILL pay employees for any loss of earnings due to our failure to fill the job vacancies accord- ing to seniority and the bidding procedures, plus interest.' WE WILL, on the Union's request, process any grievances arising after the 1977-1980 contract ex- pired and before the new contract took effect. WE WILL, on their unconditional application to return to work, offer immediate and full reinstate- ment to all former unfair labor practice strikers; other than those disqualified by serious picket line misconduct, to their former jobs or, if those jobs no longer exist, to substantially equivalent posi- tions, without prejudice to their seniority or any other rights or privileges previously enjoyed, dis- missing, if necessary, any persons hired by us on or after the commencement of the strike on 8 July 1980, and WE WILL make the strikers whole for any loss of earnings and other benefits suffered as a result of our refusal, if any, to reinstate them in a timely fashion, plus interest. WE WILL pay premium wages to those employ- ees working on 27 June 1980, when their work schedule was altered without regard to the notice requirement contained in the collective-bargaining agreement, plus interest. WE WILL make whole Henry Owen and any other affected employees, for any loss of earnings suffered by reason of our departure from the con- tractually prescribed method of recalling laid-off employees for work, plus interest. WE WILL also recall in accordance with the method contractually prescribed when vacancies are available. WE WILL remove from our files the disciplinary warning of Charles Steele dated 13 October 1980, and WE WILL notify him in writing that this has been done and that we will make no further refer- ence to it. AMERICAN GYPSUM COMPANY Lewis S. Harris, Esq., for the General Counsel. Nicholas J. Noeding Esq., and Julie Neerken, Esq. , (Poole, Tinnin & Martin), of Albuquerque, New Mexico, for the Respondent. John L. Hollis, Esq. (Kool, Kool, Bloomfield & Hollis, P.A.), of Albuquerque, New Mexico, for the Charging Party. DECISION STATEMENT OF THE CASE GORDON J. MYATT, Administrative Law Judge. On charges filed in Case 28-CA-5961 by United Cement, Lime and Gypsum Workers International Union, Local 419, AFL-CIO (the Union) against American Gypsum Company (the Respondent), the Regional Director for Region 28 issued a complaint and notice of hearing on September 12, 1980.' A subsequent amended complaint and notice of hearing was issued on October 31. Addi- tional charges were filed by the Union in Case 28-CA- 6174 on November 14,,and the Regional Director issued a complaint and notice of hearing in that case on Decem- ber 19. By an order dated December 22, the Regional Director consolidated both cases for hearing. The complaints allege, inter alia, that the Respondent and the Union have been parties to a collective-bargain- ing agreement, which expired March 31, and since June 23 and September 22, the Respondent has violated Sec- tion 8(a)(1) and (5) of the National Labor Relations Act (the Act) by unilaterally departing from and abrogating provisions of the expired collective-bargaining agree- ment. In addition, the complaints allege that the Re- spondent has unlawfully refused to reinstate employees, who are asserted to be unfair labor practice strikers to their former or substantially equivalent positions in viola- tion of Section 8(a)(1) and (3) of the Act.' The Respond- ent's answer admits certain allegations of the complaints, denies others, and specifically denies the commission of any unfair labor practices. A hearing was held on this matter on March 10 to 13, 1981, in Albuquerque, New Mexico. All parties were represented by counsel afforded full opportunity to ex- amine and cross-examine witnesses and to present materi- al and relevant evidence on the issues. Briefs were sub- mitted by all parties and have been considered. On the entire record in this case, including my obser- vation of the witnesses and their demeanor while testify- ing, I make the following FINDINGS OF FACT 1. JURISDICTION The Respondent is a New Mexico corporation, which maintains its principal office and place of business in Al- x Unless otherwise indicated, all dates are in 1980 AMERICAN GYPSUM CO. 105 buquerque, New Mexico, where it is engaged in the busi- ness of the manufacture and sale of gypsum wallboard. During the past calendar year, the Respondent in the course and conduct of its business operations purchased goods and materials vlaued in excess of $50,000 and caused such products to be delivered to its Albuquerque, New Mexico place of business directly from suppliers and firms located in States other than the State of New Mexico. The pleadings admit, and I find, that the Re- spondent is, and has been at all times material, an em- ployer engaged in commence and in a business affecting commerce within the meaning of Section 2(6) and (7) of the Act, H. THE LABOR ORGANIZATION INVOLVED United Cement, Lime Gypsum Workers International Union, Local 419, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A, Background Facts The Respondent is the current owner of the gypsum wallboard-producing plant in Albuquerque, New Mexico. It purchased and began operating this facility sometime in July 1979. At the time of purchase, the pre- vious owners and the Union were parties to an existing collective-bargaining agreement effective from April 1, 1977, to and including March 31, 1980. (G.C. Exh. 2.) Under the terms of the purchase arrangement the Re- spondent assumed its predecessor's obligations to the col- lective-bargaining agreement and recognized the Union as the exclusive bargaining representative of the employ- ees in the following unit: All production, maintenance and shipping employ- ees at its [Respondent's] Albuquerque, New Mexico location, excluding all other employees, clerical em- ployees, truck drivers, watchmen, and supervisors as defined in the Labor Management Relations Act. On January 25, 1980, Jack Hammond, district repre- sentative of the Union, sent the Respondent a letter noti- fying it that the Union wished "to modify, alter, and/or terminate" the existing agreement. (G.C. Exh. 3.) It is the events that flowed from the parties' efforts to negoti- ate a new agreement that give rise to the issues involved in this case. B. The Negotiations Prior to the Strike of dune 11 The negotiations between the Respondent and the Union commenced on March 3. Ted Gayock, currently Respondent's president but vice president and general manager at the time of negotiations, headed up manage- ment's negotiating committee. This committee consisted of Marvin Reiff (vice president of manufacturing), Del- fmio Gonzales (plant superintendent), Edward Williams (safety manager), and J. D. Helms (Respondent's corpo- rate attorney). Hammond was the Union's chief negotia- tor, and its negotiating committee included Robert Jara- millo (the president of the Union), Charles Steele (re- cording secretary), Edward Encinias (financial secre- tary), and Angel Justiniano (shop steward). The unrefuted testimony indicates that prior to the ini- tial meeting on March 3 the parties had established cer- tain ground rules for negotiations. Each side was to present their proposals at the first session. No new pro- posals could be presented at subsequent sessions, but any proposals already on the "negotiating table" could be amended or altered. Gayock testified that at the first ses- sion he voiced concern to Hammond about prior prac- tice of the chief negotiations entering into private agree- ments not brought before the full negotiating commit- tees. According to Gayock, he insisted that all matters be discussed across the table. Following the initial bargaining session, the parties met on March 4, 5, and 27-30 in an effort to negotiate a new agreement before the expiration date of the existing con- tract. At the final meeting in March, it became evident to the parties that they would not negotiate a new agree- ment before the existing agreement expired since numer- ous unresolved issues remained. Gayock, testified that Hammond stated if an agreement was not reached, the parties would go back to "square one" because of the time that had been spent on the negotiations. Gayock stated he agreed to this. Hammond, on the other hand, testified he told Gayock that if the Union had to strike to support its contract proposals, all prior contract offers submitted by the Union were "off the table." Hammond denied, however, that there was any understanding be- tween the parties that they would revert to square one if the Union engaged in a strike. The parties finally agreed at this last meeting in March to extend the existing agreement on a day-to-day basis while they continued their efforts to negotiate a new contract. The soon-to-expire agreement contained the following no-strike/no-lockout provision: ARTICLE III NO STRIKE-NO LOCKOUT It is agreed between the Company and the Union that there shall be no lockout of employees on the part of the Company, and that there will be no strikes or other cessation of work on the part of the Union on account of any controversy whatever during the term of this Agreement. Any employee who participates in an unauthorized strike, work stoppage or organized slowdown shall be subject to discipline, including discharge by the Company, with the right appeal to the Grievance and Arbitra- tion Procedure only as to the question of participa- tion. The grievance procedure contained four steps with specific time limits and culminated with a provision for binding arbitration by either party, in the event the grievance was not satisfactorily adjusted. (G.C. Exh. 2, art. IV.) The parties next met on April 28, but were unable to resolve their differences over several contract proposals. On June 2, they sought the assistance of a Federal medi- ator who suggested the Respondent put its final contract 106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD offer in written form and submit it to the Union. The Re- spondent did this on June 4 and it was given to the union representatives at a meeting on June 5. The parties went through each provision and agreed tentatively on a number of items, which they indicated on their respec- tive working copies.2 Several issues, however, remained in dispute. They then decided to meet on June 11 pri- marily for the purpose of discussing their differences on the pension proposal to be contained in the new agree- ments At the June 11 meeting, the union representatives were accompanied by the Union's expert of pension plans, Tom Balanoff Gayock testified that prior to the meeting he had consulted the Respondent's pension advisor and expressed concern over the lack of coverage any pension program would have for two employees who were near retirement. He stated he was told he could not set up a separate program for these two employees without being subject to "discrimination charges." Hammond testified that Balaanoff informed Gayock the company would have no administrative responsibility regarding the plan and merely had to send a check to the plan-which the Union insisted be NIGPP. According to Hammond, Ba- lanoff said NIGPP would pick up the years of past serv- ice for the two employees who were nearing retirement age. Hammond further testified that he, Gayock, and Ba- lanoff went into the hall and there Gayock offered to give the monthly contribution outright to the Union. Ba- lanoff replied that the Union was not set up to handle pennon funds and the Respondent would have to send its contribution directly to the selected penison plan. Ac- cording to Hammond, Gayock stated this was all right with him, but that the Respondent would only give 15 cents an hour rather than the 30 cents an hour asked for by the Union. Hammond testified that when they re- turned to the room he told the negotiating committees that the Respondent had agreed to NIGPP but the par- ties were "hung up" on money. Hammond further testi- fied that he told Gayock if the Respondent did not offer more on the pension plan and for across-the-board wage increases the union representatives would recommend to the employees that they reject the Respondent's last offer. Gayock testified that when Balanoff informed him the Company could not make the pension contributions di- rectly to the union because it would be illegal he, Gayock, then stated the Respodent would have to con- sider some alternative. According to Gayock, he told the union representatives that if the Respondent was going to be responsible for the pension program it would have to evaluate several other programs. Gayock testified the union representatives insisted on NIGPP and he told them that program was not acceptable. Gayock acknowl- edged that he changed the Company's original offer 2 The Respondent's and the Union's working copies of the final pro- posal were submitted into evidence as G.C Exh 4 and R. Exh. 4. 3 Up to this point, the Respondent had offered to contribute 2 percent of the total hourly wages of the unit employees a month to a pension benefit fund The Union, on the other hand, was insisting that 30 cents per hour worked by unit employees be contributed to the pension fund and further, that the pension contributions be made to the National In- dustrial Group Pension Plan (NIGPP). from 2 percent of the total hourly wages of unit employ- ees for a month to 15 cents per hour for work performed by unit employees. Because the parties were not able to agree on the eco- nomic package, the Union rejected the Respondent's final offer and a strike commenced at noon on June 11. The employees began picketing the entrance to the Re- spondent's plant. All parties agree this was an economic strike in support of the Union's contract demands. On June 17, the Respondent sent a letter to the Union, with copies to all the unit employees, setting forth the fact that the parties had agreed to extend the expired con- tract on a day-to-day basis with the understanding that any increase in salary would be retroactive to April 1. (G.C. Exh. 5.) The letter also set forth the economic proposals contained in the Respondent's final offer and stated that if the employees did not report to work by 7 a.m. on June 23 the Respondent would hire permanent replacements for their positions. On June 20, the Re- spondent sent another letter to the Union, stating that the Respondent would implement its final offer at 5 p.m. June 25 unless the Union accepted the offer by that time and date. The Respondent also indicated in this letter that its offer to apply the wage increases retroactively would expire at that time. (G.C. Exh. 6.) C. The Return of the Strike Employees on June 23 and the Events Thereafter The striking employees terminated the picketing and reported for work at the start of the day shift at 7 a.m. on June 23. Hammond accompanied the employees and held a brief meeting with them at the plant gate. He told the employees they were returning under the terms of the expired agreement. Gayock and Reiff came out and informed Hammond they were going to hold a meeting with the employees in the plant yard before allowing them to work. Hammond testified that Gayock then said Jaramillo would not be permitted to return because, ac- cording to Gayock, the union president had engaged in picket-line misconduct during the strike. Hammond told Gayock the Union wanted to file a grievance over Jara- millo's discharge. Gayock refused to accept the griev- ance, responding, "There was no mechanism to file a grievance because there was no contract." According to Hammond, he then told Gayock the employees were re- turning under the terms of the expired agreement and Gayock insisted that the employees were returning to work without a contract.4 Hammond further testified Gayock informed the employees at the meeting that they would be receiving the wages contained in the Respo- dent's final offer to the Union. According to the testimony of Gayock, when the em- ployees returned on June 23, the Respondent did not consider the expired agreement to be in effect. He ac- knowledged, however, that there were provisions in the agreement that the Respondent did follow on a volun- tary basis. He stated that when Hammond sought to file 4 Steele testified he was standing near Hammond and Gayock at this time. He stated he heard Hammond insist that the employees were re- turning under the expired agreement while Gayock was maintaining that there was no contract in existence. AMERICAN GYPSUM co.. a grievance that morning on behalf of Jaramillo he re- jected the grievance because there was no mechanism by which to file a grievance as the contract had expired. Gayock testified he informed the employees they were returning to work without a contract and when she said this Hammond replied that the employees could be there "2 hours, 2 days, or 2 weeks." Gayock denied Hammond said the employees were returning to work under the terms of the expired agreement. lie indicated there was no notification to this effect until Respondent received a letter, dated June 26, from the Union on July 1.' (G.C. Exh. 7.) Gaycok further testified he announced to the employees at this meeting that they would only be scheduled to work Monday -through Thursday during the week of June 23. Steele submitted a written grievance to a shift supervi- sor on June 24 regarding the Respondent's discharge of Jaramillo requesting the employee's reinstatement with full backpay. Gayock rejected the grievance by way of a letter dated June 26. In this letter he stated, "[s]ince there is no contract in effect between your bargaining unit and the company, compliments of the strike against the company on June 11, 1980, there is no mechanism to file a grievance." (G.C. Exh. 11.) Gayock and Reiff testified that during the week of June 23, the production of the crew working the grave- yard shift (I1 p.m. to 7 a.m.) was dramatically lower than any of the other shifts and caused the plant to fall behind in its production schedules. Their testimony in this regard was supported by summaries of the produc- tion records for that week. (See G.C. Exh. 5.) Gayock and Reiff attributed the low productivity of this crew to a deliberate slowdown and sabotage by the employees. They cited such incidents as someone pushing the emer- gency stop button on the knife, which cut the wallboard, bits of metal put in the mixer thereby causing a stop in the production line, and someone cutting the hose line in the cascade section. As a result of these production interruptions, the Re- spondent's scheduled output diminished drastically. Gayock and Reiff decided on June 26 that it would be necessary to schedule all the employees to work a full shift on Friday (June 27)-even though the employees were initially told their work schedule for that week would be Monday through Thursday. Ordinarily under the terms of the expired agreement, the Respondent was required to give 72 hours' notice before changing an em- ployee's work schedules Gayock and Reiff testified at 5 The specific provision in the expired agreement relating to the 72- hour notice reads as follows: ARTICLE V HOURS OF WORK (E) An employee's normal work schedule will not be changed without at least three (3) days notice. The Company shall pay at the rate of one and one-half (1-1/2) the regular hourly rate for the first day of the schedule change without three (3) days notice, unless the change is occasioned by absences by employees attending to Union business, emergencies or other circumstances beyond the control of the Company requiring plant shutdown. 107 the hearing they considered the production delays to be the result of circumstances beyond the Respondent's con- trol and, therefore, the 72-hour notice requirement did not apply, even if required. Reiff admitted on cross-ex- amination, however, that he and Gayock did not specifi- cally discuss the notice requirements of the expired agreement when the decision was made to schedule the employees for work on June 27. The following week, commencing June 30, the crew working the graveyard shift the previous week rotated to the swing shift (3 to 11 p.m.). During their shift on June 30, the mixer was stopped and bits of metal were found clogging it. At approximately the same time, a su- pervisor reported to Gayock that he observed employee Jerry Valdez pound the knife control panel with his fist. Gayock then ordered the entire swing shift crew out of the plant and discharged them for "poor efficiency," based on the crew's performance the prior week and the current breakdown. After the discharge of the swing shift crew, Justinian, accompanied by Encinias, attempted to file a grievance on behalf of the members of the crew with Plant Super- intendent Gonzales. The testimony of Encinias and Gayock indicates Gonzales refused to accept the griev- ance stating, "There is no contract and the Union has no right to file a grievance."6 On July 1, Justiniano and Steele submitted two sepa- rate requests to Gonzales asking that they and five other unit employees be excused from work on July 3 to attend to union business. Gayock responded in a letter on the same date stating, "Compliments of that strike, you have no contract to implement time off for official Union business." Gayock informed the union officials that the Respondent would evaluate its workload on July 3 to de- termine if the individuals could be excused. He stated, however, that if the Company permitted the employees time off it would be considered "personal leave with no pay." (G.C. Exh. 8.)7 D. The Continuation of the Negotiations On July 3, Gayock met with Kent Weaver, an interna- tional vice president of the Union, at a local country club. This meeting had been arranged by Weaver in an effort to resolve the matters in dispute between the Re- spondent and the Union. Weaver sought to discuss the 6 Contrary to the testimony of Encinias and Gayock, Gonzales testified he accepted the grievance. However, he admitted that he felt there was no applicable grievance procedure because there was no collective-bar- gaining agreement. He stated he told Justiniano, "As far as I am con- cerned right now you don't have no agreement [sic], but I will accept your grievance, as such, but as far as I'm concerned you don't [sic] have no grievance procedure. You've got no contract " 7 Art XIV of the expired agreement contained the following provision regarding employee release from work for union business: (F) All duly elected members of Local 419 shall be excused from their duty to attend to business pertaining to his [sic] Local Union, providing the Company is notified seventy-two (72) hours ahead of time and providing that no more than nine (9) members are absent to attend to such business It is understood that the Company may make any necessary adjustments in the work schedule because of such absence by members of Local 419. In cases where an emergen- cy arises, and it is not possible to give a seventy-two (72) hours ad- vance notice of such absence. [sic]. 108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD discharges of Jaramillo, Ventura Lagarreta, Valdez, and the crew fired on June 30. 8 Gayock initially took the po- sition that the Respondent was unwilling to discuss the matter of the discharges until an agreement on the con- tract issues was reached. According to Weaver, he subse- quently stated the Respondent would not change its posi- tion on the discharges of Jaramillo, Lagarreta, or Valdez but would be willing to consider bringing back the other employees fired on June 30, because a "lot of innocent people [were] caught up in the discharge." Weaver pressed for a better economic offer and Gayock stated the Respondent had offered all that it could. Weaver then suggested the Respondent consider a 5-year pension plan even though the contract to be negotiated would only have a term of 3 years. Gayock promised to consid- er this and consult with one of the Respondent's princi- pal owners. Gayock and Weaver then agreed to meet later that same day at Gayock's office.9 Prior to meeting with Gayock in his office, Weaver held a meeting with the unit employees in the Respond- ent's parking lot. He told them of his private discussion with Gayock and recommended the employees not con- sider strike action while negotiations were continuing to take place. The employees agreed to accept Weaver's recommendation. Following the meeting with the employees, Weaver and Hammond met with Gayock and Reiff in Gayock's office. Gayock indicated he had spoken with his princi- pal and was prepared to make a new offer on the pen- sion proposal. He told the union representatives that Re- spondent was willing to pay 15 cents an hour for the hours worked by unit employees if the pension plan was for a 3-year period. In the alternative, the Respondent was willing to extend the pension plan to a 5-year term and would offer 15 cents an hour for the first 2 years, 20 cents an hour for the following 2 years, and 25 cents an hour for the final year. No agreement was reached on the Respondent's latest pension offer and the parties scheduled a meeting for July 7 of the following week. Weaver met privately with Gayock in the morning at a local hotel on July 7. According to Weaver, he told Gayock the Respondent had to improve the pension offer and discuss the matter of the discharges. Gayock stated the Respondent would not offer any more and they agreed to meet later that day with their full bar- gaining committees. The parties met again at 1:30 p.m. with the full bargaining committees present. Gayock ad- vised the group that there was an impasse on the pension issue and Weaver agreed. Gayock then told the union representatives that the Respondent had changed its posi- tion on the acceptance of grievances arising after the start of the strike. According to Gayock, the Respondent would now process grievances, filed after June 11, through all steps of the grievance procedure set forth in the expired agreement, but would not honor the arbitra- 8 Lagarreta was discharged on June 25 for allegedly pushing the emer- gency stop button at the knife, thereby shutting down the production lane. Valdez was discharged on June 30 for allegedly pounding the knife control panel with his fist. 9 The above is a synthesis of the testimony of Gayock and Weaver since there were no significant differences in their recollection of what occurred at this meeting tion provision contained in the expired agreement. Gayock indicated the time requirements of the grievance procedure would begin to run from the time he advised the union representatives of the Respondent's changed position on this issue. The union representatives attempt- ed to discuss the outstanding grievances and to present a second-step grievance relating to the discharge of Lagar- reta. Gayock took the position, however, that the steps of the grievance procedure had to be followed and that the Respondent would not discuss any grievances at this meeting. Gayock concluded the meeting by stating he would meet with the union representatives at a later date. E. The Strike of July 8, 1980 After the meeting with the Respondent, Weaver and the union representatives met with the unit employees in the Respondent's parking lot. Weaver testified he told the employees of the results of the meeting with the Re- spondent's officials. He stated he informed the employees the economic package offered by the Respondent was in- adequate and that the Respondent took the position it would not arbitrate grievances regarding the discharged employees. He recommended that the employees engage in an "unfair labor practices" strike against the Respond- ent. Steele, the recording secretary, testified Weaver dis- cussed the changes the Respondent had implemented since the employees who had returned from the econom- ic strike on June 23. According to Steele, Weaver read Gayock's letter of June 26 rejecting the Jaramillo griev- ance, and told the employees there were three reasons for them to go out on strike. First, that the Respondent had violated Federal labor law; second, that the Re- spondent failed to offer an adequate economic package; and third, the Respondent's failure to rehire the dis- charged employees. The employees voted to follow Weaver's recommendation, and picketing of the Re- spondent's plant began the following morning. The legend on the picket signs stated the strike was, "To Pro- test the Company's Unfair Labor Practices." Testimony was given regarding two specific incidents occurring on the picket line involving employee Steve Chavez. The first incident took place on July 21. James Howse, a truckdriver for a lumber company in Gallup, testified he had entered the Respondent's plant to make a pickup. i ° After his truck was loaded and he was leaving the plant, pickets were blocking his access to the road- way. Howse testified that as he proceeded his tractor came within inches of some of the pickets who were blocking his route. He stated he always carried a shotgun in the truck cab, in full view, on top of the console of the instrument panel. When the pickets came close to the truck, according to Howse, he took the shotgun off the console and held it in his lap with his right hand. He stated that at this point Chavez climbed the ladder on the side of the truck cab and then jumped off. According to the testimony of Howse, Chavez then threw his picket sign through the cab window and Howse caught it with '° Howse was driving an 18-wheel semi and pulling a flatbed trailer. AMERICAN GYPSUM CO. 109 his left hand. Howse testified he "backed" the pickets off with his shotgun and proceeded on his way. Chavez, who worked as, a helper in the Respondent's loading area, testifed that as the truck was leaving the plant he observed Howse and a picket "throwing fin- gers" at each other." He stated Howse then swerved his truck so that he almost hit the picket. Chavez admitted he became angry at this point, and he and Howse began swearing at each other. He noticed that Howse had a shotgun cradled in his arms and stated the gun was pointed out of the cab window. Chavez denied climbing up on the tractor, but said he ran alongside of the truck shouting, "Shoot me, go ahead, shoot me." He then "poked" the picket sign in the window and Howse grabbed it and drove off. Reiff testified that Howse reported the incident to him. However, according to Reiff,' it took place as Howse was driving into the plant. Reiff admitted he did not in- vestigate the matter beyond accepting Howse' version of how the incident occurred and that Chavez was in- volved. The second incident took place on August 22. Jesse Childers testified he was driving his brother-in-law to work at the Respondent's plant at 6:45 a.m. on that date.12 According to Childers, he was sitting in the front seat on the passenger side and his brother-in-law was driving the automobile. As they passed a group of pick- ets, someone threw a rock that struck the car. Childers instructed his brother-in-law to stop, and he got out to ascertain who threw the rock. Childers admitted that as he got out of the automobile he had a set of chuckas in his hands.13 He denied he was twirling the chuckas, since, according to Childers, this would minimize their effectiveness if combat occurred. Childers stated as he approached the pickets several jumped him and one, identified as Chavez, struck him with a picket sign and puched and kicked him as he fell to the ground. Childers got up and returned to his automobile. He and his broth- er-in-law then drove into the plant and reported the inci- dent to the police. Childers further testified that he went to a,hospital, and after receiving emergency treatment he went to a nearby doughnut shop. He stated that three individuals from the picket line, including Chavez, came into the shop to make a purchase and noticed that he was there. According to Childers, they called him obscene names and challenged him to come outside and fight. Childers refused and they left. Reiff testified he observed the altercation between Childers and the pickets from an office window in the plant. He stated he was looking out of the window with binoculars. According to Reiff, Childers was driving the automobile when it passed 'd he pickets. He observed someone throw a rock at the car. Reiff did not observe any chuckas in Childers' hands when he got out of the automobile, but he saw one of the pickets hit Childers with a picket sign and then observed Chavez grab Childers by the hair and kick him repeatedly. Chavez admitted being involved in the altercation with Childers. He stated that after the automobile passed the pickets it stopped and Childers got out. According to Chavez, Childers accused him of throwing a rock at his automobile. Chavez asserted that Childers was twirling a set of chuckas as they approached each other. He stated that Childers was twirling a set of chuckas and he in turn struck Childers with the picket sign. Other pickets joined in the fight and Chavez grabbed Childers by the hair, kneed him in the stomach, and kicked him while he was down. Chavez stated he told Childers he was a "stupid idiot" to take on a group of picketing employees and to "get out of here." He said Childers threatened to come back and get the strikers, and (Chavez) invited Childers to come outside and fight. When Childers re- fused to accept the challenge, Chavez left the doughnut shop. Other picket line incidents occurred during the strike, and based on charges filed against the Union by the Re- spondent, the Regional Director sought a 10(j) injunc- tion. The parties indicated on the record that an injunc- tion was granted as the result of a consent order without litigation on the merits of the injunction petition. F. The Union 's Offer on Behalf of the Striking Employees to Return to Work Following the start of the strike in July, the Respond- ent and the Union communicated with each other in an effort to schedule a meeting to resume -negotiations. (See G.C. Exh. 13.) A meeting was finally arranged for 10 a.m. on September 10 at a local hotel . Weaver testified that he went into the coffee shop of the hotel prior to the meeting and delivered a handwritten letter, bearing the previous day's date, to' Gayock . The letter stated the Union accepted the Respondent 's final contract offer of June 4 and NGIPP plan of June 11. The letter also re- quested that the Respondent advise the Union when it wanted to sign the contract and when the employees were to return to work.14 (G,C. Exh. 14.) According to Weaver, the union representatives decided not to meet with the Respondent's representatives at the appointed hour but, rather, to use that time for a meeting with the employees to get them to ratify the acceptance of the Respondent's offer of June 4. Weaver sent a note to Gayock stating the Union would not be able to meet at 10 a.m. and suggested the parties reschedule the meeting for 1:30 p.m. Gayock had our out-of-town appointment that afternoon and asked Weaver to contact him regard- ing a later meeting time. Gayock_ also indicated he had some questions about the Union's letter. Weaver met with the employees and recommended they ratify the Respondent's last offer; which they did. Weaver then consulted with the Union's attorneys and delivered another handwritten letter to Gayock 's office at the plant. Unlike the first letter, this one stated the contract had been ratified by the union members pursu- 11 This is a derisive gesture expressing contempt or scorn 12 Childers' brother-in-law was hired by the Respondent as a stoke re- placement. 14 The striking employees ceased picketing the Respondent's facility 13 Chuckas are Oriental instruments used in martial arts combat on the morning of September 10. 110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ant to article XVIII of the expired agreement It con- cluded by stating, "All employees are unconditionally prepared to return to work immediately." (G.C. Exh. 15) Gayock called his office that afternoon and was in- formed of the contents of the second letter left by the Union That evening Gayock called Weaver at the hotel Weaver testified Gayock stated he would have to look into the matter of the employees returning to work. Ac- cording to Weaver, he told Gayock the employees were ready and willing to return. Weaver denied that there was any mention of the collective-bargaining agreement during this conversation with Gayock. Hammond, who was in the room with Weaver at the time of the tele- phone call, testified he heard Weaver say all the employ- ees were ready to return to work, and Gayock knew who they were because they were the Respondent's em- ployees. Hammond could not recall any discussion on Weaver's part regarding the collective-bargaining. Gayock, on the other hand, testified that when he called Weaver that evening, he asked what the letters meant. According to Gayock, Weaver replied, "We have an agreement and we are ready to come back to work." Gayock responded they did not have an agreement since there were several items the union representatives indi- cated they could not accept. At this point, according to Gayock, Weaver stated the Union accepted the contract "as written." Gayock sent a letter to the Union the following day requesting clarification of the offer for the employees to return to work. The parties subsequently agreed to meet at the Regional Office of the Board on September 16. When they met, Respondent's officials were accompa- nied by the Respondent's labor counsel. Weaver testified that the union representatives signed copies of Respondent's June 4 contract proposal and passed them across the table for the Respondent's repre- sentatives to sign. They refused to do so, however, stat- ing their contract proposal of June 4 had been with- drawn. According to Weaver, Gayock told the union representatives the parties had agreed early in the negoti- ations that if an impasse was reached the negotiations would go back to "square one." Weaver denied this, calling Gayock a "liar." The Respondent's officials then questioned whether the offer for the employees to return to work was conditioned on the Respondent's signing the June 4 proposal. Weaver replied that the letters "speak for themselves." The Respondent indicated that some employees were involved in picket-line misconduct and would not be allowed to return to work. The union rep- resentatives insisted that all employees be allowed to return to their jobs at the plant. The meeting concluded with the parties agreeing to get in touch with each other. After a series of telephone communications, the Re- spondent sent a mailgram to the Union on September 17, stating, "All striking employees who wish to return to work should report to the plant guardhouse on or before Monday, September 22." In the mailgram, the Respond- ent denied a contract existed between it and the Union. (G.C. Exh. 16) The following day the Respondent sent another mailgram to the Union indicating it would imme- diately reinstate all strikers "for whom the company has positions and who are otherwise eligible for reinstate- ment "15 In this mailgram, the Respondent reasserted its position that there was no collective-bargaining agree- ment between it and the Union (R. Exh. 7.) On September 19, the striking employees reported to the plant guardhouse to sign a register showing they were available to return to work. Since a number of the employees were Vietnamese with identical surnames, the Respondent required all employees to give their names, social security, and telephone numbers. Steele gave Gayock letters relating to five employees who were unable to appear but were available to return to their jobs (G.C. Exhs. 23-27.) After receiving the register of employees, Gayock took a plant seniority list and com- piled a roster of those employees the Respondent intend- ed to allow to return. He testified he excluded from the list employees the Respondent considered guilty of mis- conduct on picket line. He accomplished this by review- ing the affidavits, which were attached to the petition for the injunction. Steve Chavez was one of the striking em- ployees the Respondent decided would not be allowed to return because of his misconduct on the picket line. Once the register of the employees the Respondent considered eligible to return to work was compiled, Gayock notified Hammond of their names. The Respondent also sent cer- tified letters to all of these employees setting the date for their return. On October 31, the Union, through its attor- ney, sent the Respondent a mailgram making an uncondi- tional offer on behalf of all employees who had not al- ready returned to work, to do so. (C.P. Exh. 2.) G. The Alleged Failure to Recall Laid-Off Employees in Order of Seniority and to Restore Striking Employees to Their Former or Substantially Equivalent Positions The testimony discloses that during the last month in 1979 the Respondent experienced a drop in business and a number of employees were laid off. Harry Owens was hired by the Respondent in March 1979 and put on lay- off status on December 3, 1979. Owens testified he be- lieved 12 or 13 other employees were laid off at that time and that he had the greatest seniority of all the em- ployees who were laid off. He stated he was working intermittently elsewhere and up to the time of the strike in June he had never been contacted by the Respondent regarding recall from layoff. Owens did not contact the Respondent's management during the strikes. He stated he did call Reiff in November 1980, but was told there was no possibility of his being recalled by the Respond- ent due to the strike Gonzales testified management decided the first week in June to put on a fourth shift. This was to be accom- plished by recalling the laid-off employees. According to Gonzales, he, Tito Montana (a foreman), and Ed Wil- liams took a list and proceeded to telephone the laid-off employees to ascertain their availability. The list was in- troduced into evidence and shows that Owens name was the first on the list (R. Exh. 1.) Beside Owens name was the notation when "out of town." Gonzales stated he 15 During the strike the Respondent hired 30-35 strike replacements AMERICAN GYPSUM CO. would never contact Owens. He testified that when the strike occurred in June he again called the laid-off em- ployees in an effort to get them to come to work. Bobby Gutierrez was the only laid-off employee who came to work at that time. When the first strike ended, Gutierrez remained employed by the Respondent. When the second strike occurred, two other laid-off employees (Tiana and Williams) returned to work for the Respond- ent. After the employees registered with the Respondent when the second strike ended, Ramon Garduna was put to work by management on the swing shift as a calciner helper. Before 'the strike, Garduna, who was 63 years old, worked as an oiler on the first shift. The rate of pay for an oiler was $6.57 an hour and that of a calciner helper was $6.47 an hour.' 6 Garduna testified that his duties as an oiler were not laborious and merely required his walking with an oil can to lubricate the machinery. In contrast, according to Garduna, his duties as a cal- ciner helper were strenuous and required filling a wheelbarrow with a shovel and pushing it.17 He stated he complained to Gonzales about his more arduous work assignment and asked to be laid off so he could collect unemployment compensation. Gonzales refused to comply with this request and Garduna quit the Respond- ent's employ in October. James Ballog had been employed by the Respondent's predecessor and the Respondent for a number of years, beginning in 1965. Ballog initially started as a full-time machinist in 1965 while on lay-off status with General Electric (GE). After becoming a supervisor of mainte- nance with the Respondent, Ballog was recalled by G E. Be continued to wrok for the Respondent, however, as part-time machinist on the first shift while working full- time at GE from 3:30 p.m. until midnight. Ballog testi- fied that while he had no set work schedule with the Re- spondent, he usually started at 7 a.m. and worked until noon. He further stated that if problems developed with any of the machinery at the Respondent's plant while he was on his full-time job at GE, the Respondent's officials would call there and leave a message for him to return to the plant when his shift was over. Ballog worked under this arrangement until the first strike in June and resumed it when the employees returned on June 23.18 After the second strike ended in September, Ballog was one of the employees for whom Steele submitted let- ters to the Respondent stating they were available to return to work. On November 5, Reiff called Ballog at home to notify him that a job was available, but indicat- ed it was a full-time position. Reiff stated Ballog's old job had been filled. When Ballog asked what the job would be, Reiff instructed him to contact Gonzales. 16 The parties compiled an exhibit showing the names of the returning strikers, their job positions and rates of pay prior to the strike, and their job positions and rates of pay on returning in September. (G.C Exh. 20 ) 17 Reiff initially testified that the duties of a calciner helper were no more laborious than the duties of an oiler. He admitted on cross-examma- tion, however, that an oiler's job involved lighter work Reiff also testi- fied that Garduna was assigned to the calcmer helper position because his oiler's job had been filled by a strike replacement 18 Despite this apparent long-standing arrangement, Gayock testified he was not aware that Ballog held a full-time job elsewhere while work- ing for the Respondent on a part-time basis. 111 Ballog called Gonzales and reminded him that he had been a part-time employee prior to the strike. Gonzales promised to check into the matter and get back to Ballog. That same day Reiff sent a letter to Ballog notifying him to report to work on November 10. (G.C. Exh. 18.) Prior to November 10, Ballog contacted Reiff and was told the Respondent only had a full-time position avail- able for him as a bundler. This was an unskilled job, paying substantially less per hour than Ballog had been receiving as a' machinist. Ballog protested and Reiff agreed to get back to him. On November 19, Reiff called Ballog again and told the employee he would be called back to work as a full- time machinist.19 Ballog reminded Reiff that he had worked as a part-time machinist and Reiff replied it was the only position available. He also told Ballog the Re- spondent had hired a part-time machinist who was work- ing on the second shift. Ballog then suggested he be al- lowed to work part-time on the first shift and the new machinist continue on a full-time basis. He stated Reiff rejected this suggestion. Ballog asked Reiff what the new machinists was able to do in 6 months that he had not done for the Respondent in 12 years. According to Ballog, Reiff answered by stating, "He worked during the strike and you didn't."20 At the time of the hearing, Ballog had not returned to work for the Respondent. r H. The Reprimand of Steele for Taking Time Off for Union Business Steele returned to work on October 8 on the grave- yard shift. The following week he was scheduled to work on a different shift. Steele testified he had a letter from the Union, addressed to Gonzales, requesting that he be excused from work on Monday, October 13, in order to attend to official business on behalf of the Union. Although the letter was dated October 10, Steele apparently did not give it to his foreman until the morn- ing of October 11. (See G.C. Exh. 9.) Steele took the time off on October 13 and on his return he received a written reprimand for an unexcused absence. The repri- mand indicated that Steele had requested time off for union business, but failed to provide the Respondent with 72 hours notice and did not mention that any emer- gency was connected with this request. (G.C. Exh. 29(a).) Steele grieved this action and it was indicated at the time of the hearing that the grievance had not been resolved. 19 Reiff also sent a letter to Ballog on that date instructing him to report to work on November 24 as a full-time machinist The letter stated, "This is all we have available at this time." (G.C. Exh. 19) zo Reiff testified he told Ballog he had been replaced in his position as a part-time machinists. It was conceded by the Respondent that all the returning strikers were considered economic strikers and put to work as positions became available The Respondent's officials acknowledged that they did not lay off any of the strike replacements in order to; allow the striking employees to return 112 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD I. The Filling of Vacancies Without Utilizing the Bidding Procedure Gayock testified that in mid-October a bundler posi- tion became open Gayock freely acknowledged that this position was filled without regard to the bidding proce- dure contained in the expired agreement. He also stated that another position of inside cleaner was filled without following the terms of the bidding procedure contained in the expired agreement. Concluding Findings As noted, the parties agree the first strike was an eco- nomic strike in support of the Union's contract demands. It is also evident that after the expiration of the contract on March 31, 1980, the Respondent and the Union ex- tended the terms of the expired agreement on a day-to- day basis while attempting to negotiate a successor agreement.21 The General Counsel and Charging Party contend that the terms of the expired agreement contin- ued to apply when the employees ended the first strike and returned to work. The General Counsel argues no impasse had been reached at the time of the first strike because the changes the Respondent imposed when the employees returned to work had not been proposed to the Union during the contract negotiations. In my judg- ment, this begs the question by focusing on the results after the conclusion of the first strike rather than ad- dressing the issue of whether an impasse existed at the time the June strike occurred. Contrary to the argument of the General Counsel, I find that under the standard set forth in Taft Broadcasting Co.22 an impasse had in fact been reached at the time of the initial strike in June. The parties met and engaged in serious negotiations seven times in March, once in April, and on June 3 met with a Federal mediator who suggest- ed the Respondent submit a final proposal to the Union When this was done on June 5, the parties went through all the items and their disagreement centered on the eco- nomic provisions; i.e. the pension plan (and the amount to be contributed) and the wage package. Up to this point, the parties had engaged in extended negotiations covering a span of 3-plus months There is no suggestion in the record that the Respondent had not yet been bar- gaining in good faith, and it is manifestly clear that the issues that separated the parties were of major impor- tance to both the Respondent and the Union. There was no hiatus here after extended negotiations nor a resump- tion of discussions, but, rather, a resort to economic pres- sure by the Union after a determination that the most im- portant part of the Respondent's final proposal, the eco- nomic package, was unacceptable. Thus, I find that when the Union rejected the final offer and the employ- ees struck on June 11, the parties had reached a genuine 21 The Respondent contends the extension was until agreement was reached on a new contract or the Union engaged in a strike The Union contends the expired agreement was extended on a day-to-day basis until a new agreement was negotiated In the circumstances of this case, I find no significant difference in the consequences that would result, whichev- er version of the extension arrangement is accepted 22 Taft Broadcasting Co, 163 NLRB 475, 478 (1967), enfd 395 F 2d 622 (D C Cir 1968) impasse in their negotiations Taft Broadcasting Co., supra. Having determined that an impasse existed at the time of the June strike, the question becomes what were the rights of the parties when the employees terminated the strike on June 23? It is settled law that once an impasse is reached "an employer can only make unilateral changes in working conditions consistent with its rejected offer to a union " (Emphasis supplied.) Allen W. Bird, II, 227 NLRB 1355, 1356 (1977); Royal Himmel Distilling Co., 203 NLRB 370 fn. 3 (1973). Therefore, when the employees returned on June 23, the Respondent was free to implement the terms of its rejected offer or, where it chose not to do so, continue to give effect to the terms of the expired agreement. In the instant case, however, the Respondent took the position that it did not have to abide by the terms of the expired agreement, except where it voluntarily chose to do so. But, at the same time, the Respondent only implemented those portions of its rejected proposal that related to wages, extra holiday, vacation schedule, and medical benefits. By this action, the Respondent deliberately left open a whole range of terms governing working conditions covered in the ex- pired agreement to its discretionary implementation or, as described by the General Counsel, to be implemented as a "fortuitous happenstance." This does not, in my judgment, comport with the requirements of Section 8(d) of the Act and any unilateral changes, other than those consistent with its rejected offer at the time of impasse, violates Section 8(a)(5) of the Act. NLRB v. Katz, 369 U.S. 736, 747 (1962). This brings into question the issue of which terms of the expired contract survived the June strike, since there was a specific no-strike no-lockout provision in that agreement. The Respondent initially took the position that the June strike relieved it of all obligations to honor any of the terms of the expired agreement. This was evi- denced by the statements of Gayock and Reiff that there was no contract between the parties when the employees returned, and the Respondent did not have to apply any of the terms of the expired agreement, except when it chose to do so. This position by the Respondent account- ed for the refusal of its officials to accept the grievance on the discharge of Jaramillo for alleged picket line mis- conduct the grievances on the discharges of Lagarreta and Valdez in June, and the grievance over the dis- charge of the entire crew on June 30. It also accounts for Gayock's reply to the request for time off to engage in union business by Steele and Justiniano in which he stated, ". . compliments of that strike, you have no contract to implement time off for official [u]nion busi- ness." The Respondent maintained this position until July 7 when, on advice of counsel, it agreed to accept and process all grievances arising after June 11, but refused to apply the arbitration provisions as the ultimate steps in the grievance process. The Respondent now contends that the no-strike clause was "coterminous" with the duty to arbitrate and when the strike occurred in June the Union breached the no-strike provision and thereby terminated the Respondent's obligation to arbitrate griev- AMERICAN GYPSUM CO. ance disputes. In support of this argument, the Respond- ent cites, among others, the Board's decisions in Goya Foods'23 S. & W Motor Lines'24 and Cardinal Operating Co.25 The General Counsel and the Charging Party argue, on the other hand, that under the Supreme Court's deci- sion in Nolde Bros, Inc. v. Bakery Workers Local 358,26 the arbitration clause here i emained viable after the strike in June. They urge that while the June strike ter- minated the agreement the arbitration clause survived the strike and was not over issues arbitrable or arguable arbi- trable under the expired agreement. The General Coun- sel and Charging Party rely heavily on the Board's deci- sion in American Sink Top to support their position.27 There, the Board held3 on the basis of Nolde Bros., that the basis of a grievance, which arose after the expiration date of a contract was "`arguably'-at least-the contract" and determined there was no reason to conclude the par- ties intended the arbitration provisions to terminate with the contract's term. Analyzing the cited cases and interpreting the reach of the Supreme Court's decision in Nolde, I conclude that the arbitration clause here survived the June strike and remained viable when the employees returned to work. It is well settled that a no-strike obligation, expressed or implied, is the quid pro quo for the employer's duty to submit grievance disputes to arbitration. Boys Markets v. Retail Clerks Union, 398 U.S, 235, 247 (1970). Further, it is equally settled that unless negated expressly or by clear implication the duty not to strike is coterminous with the obligation to arbitrate. Gateway Co. v. United Mine Workers, 414 U.S. 368, 382 (1974). But a close read- ing of the cases reveals that the, duty not to strike, unless otherwise expressly stated in the no-strike provision, is an obligation no to strike over those matters arising out of or created by the expired agreement. Thus, in Gateway Co.. the Union struck over a matter of an alleged safety hazard and in sustaining the right of the District Court to enjoin the strike the Supreme Court found the arbitra- tion clause was sufficiently broad to encompass the dis- pute.26 Again, in Goya Foods the Board in finding a strike that occurred shortly before and continued after the the expiration of a contract to be unprotected stated the duty [not to strike] lives "on the extent of the duty to arbitrate over issues created by or arising out of the ex- pired agreement."29 Implicit in this decision is the Board's condemnation of the strike because it was over a matter that arose out of the expired agreement and to which the surviving arbitration clause applied. In the instant case, however, it is conceded that the June strike was over the Union's contract demands. None of the causative factors of the strike related to any issue created by or arising out of the expired agreement. Nor does the language of the no-strike provision in the instant case limit the right of the Union to engage in a 23 Goya Foods, Inc, 238 NLRB 1465 (1978) z4 S & W. Motor Lines, 236 NLRB 9'38 (1978). zs Cardinal Operating Co., 246 NLRB 279 (1979). 26 430 U S. 243 (1977) 21 American Sink Top 4 Cabinet Co, _242 NLRB 408 (1979) z3 Gateway Co, supra at 379-380 zs Goya Foods, Inc, supra at 1467 113 strike during negotiations, as was the case in Cardinal Operating Co., cited by the Respondent.30 Similarly, in S. & W. Motor Lines, cited by the Respondent, the Board affirmed the finding of the administrative law judge that the parties had not agreed to extend the ex- pired agreement, and that by "clear implication" the par- ties,did not intend the arbitration provision to survive the expiration of the contract. None of the factors found controlling in the cases cited by the Respondent obtain in the instant case. Here, the parties agreed to extend the agreement after its expi- ration date. When negotiations reached an impasse, the Union struck solely in order to exert economic pressure to achieve its contract demands and not over issues cre- ated by or arising out of the expired agreement. Nor was there any language in the no-strike clause prohibiting a strike during negotiations for a new agreement in the postcontract period. Therefore, contrary to the Respond- ent's contentions, I find that the arbitration provision here survived the economic strike in June. From this I conclude that the Respondent's refusal to process griev- ance disputes at all until July 7, and thereafter through arbitration, was unlawful because this obligation contin- ued to exist when the strike terminated on June 23. Turning to the specific conduct flowing from the Re- spondent's refusal to continue the terms of the expired agreement, I find the following acts to be unlawful. First, the expired agreement required the Respondent to recall laid-off employees by seniority and to notify them of the recall by certified mail. Based on Gonzales' testi- mony, it is evident that after the strike started he and other management officials attempted to make telephone contact with employees who had been on lay-off status since December 1979 to persuade them to return to work. Gonzales admitted no particular order of seniority was used, nor were the employees notified of the recall by certified mail as required in the expired agreement. Accordingly, I find this to be a unilateral departure from the terms of the expired agreement in violation of Sec- tion 8(a)(1) and (5). Secondly, the Respondent's decision on June 26 to schedule the employees for an extra workday on June 27, after previously scheduling them to conclude the workweek on June 26, is a departure from the provision in the expired agreement requiring 3 days notice of a change in the work schedule. The Respondent's conten- tion-not advanced until the time of the hearing-that the circumstances requiring the schedule change consti- tuted an "emergency" beyond its control is no more than an afterthought. Indeed, the testimony of Gayock and Reiff clearly indicates that management did not even give consideration to this provision of the expired agree- ment when making the decision to change the work schedule. Moreover, as pointed out by the General S0 Cardinal Operating Co, supra In that case the Board affirmed the administrative law judge's finding that the no-strike clause mutual respon- sibdities clause limited the right of the union to strike in the postcontract period while negotiations for a new agreement were in progress Al- though a strike was not involved in that case, it was held that the duty to arbitrate did not survive the expired agreement since there was no subse- quent agreement by the union to refrain from striking and no extension of the contract for a definite period of time 114 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Counsel, this was obviously a matter to be resolved through the grievance process, but the Respondent, at that time, denied there was any grievance procedure in existence. Therefore, I find the Respondent's failure to even consider this portion of the expired agreement when making the decision to change the work schedule to be another example of a unilateral departure from the terms of the expired agreement. Accordingly, I find _that by this conduct the Respondent has violated Section 8(a)(1) and (5) of the Act. Next, I find the Respondent's reply to the request of Justiniano and Steele for time off for official union busi- ness to be another unilateral departure from the provi- sions of the expired agreement. At the hearing the Re- spondent took the position the request did not follow the time requirements of the expired contract. But it is evi- dent this position is also an afterthought devised prunari- ly for the purpose of litigation. Gayock's letter in re- sponse to the union officials' request was clear-there was no contract in effect under which time off for this purpose could be granted. Because there was a provision in the expired agreement relating to conditions under which time off would be granted for official union busi- ness, Gayock's letter was an obvious unilateral departure from this portion of the expired agreement. Thus, I fmd his rejection of the request to be a violation of Section 8(a)(1) and (5) of the Act. Finally, the Respondent's refusal, between June 23 and July 7, to accept any grievances on the discharges of Jar- amillo, Lagarreta, Valdez, and the entire crew on June 30y is a graphic example of an unlawful repudiation of the grievance procedure contained in the expired agree- ment. Nor was this unlawful conduct cured on July 7, when the Respondent agreed to accept grievances but refused to carry any grievance dispute through arbitra- tion. Having found the arbitration clause survived the June strike, the repudiation of this portion of the griev- ance process was nothing more than a continuation of the prior ulawful conduct in which the Respondent denied the existence of any grievance procedure whatso- ever. Therefore, I find the Respondent violated Section 8(a)(1) and (5) of the Act by denying until July 7 the ex- istence of the grievance procedure contained in the arbi- tration.31 It is evident from the testimony of Weaver and Steele, and the latter's note, that when Weaver spoke to the em- ployees on July 7 he brought to their attention the Re- spondent's refusal-to arbitrate grievance disputes as well as the failure to come to agreement on economic terms. Therefore, I find that when the employees voted to engage in a second strike the Respondent's refusal to apply the arbitral process to the grievance disputes in- volving the discharges of union leaders and the entire crew was a "contributing cause" to the decision to 31 The General Counsel urges that the Respondent's actions constitut- ed a change in handling grievances and, while not alleged, warrants a further finding of a violation Although, as noted by the General Coun- sel, the matter was fully litigated and relates to the overall violation found regarding the denial of the grievance process, the remedy for such a finding would be the same as that for the overall conduct. In my judg- ment, no useful purpose would be served by finding this conduct to be a separate violation of Sec. 8(a)(5) and I decline to do so. strike. Cf., Tufts Bros., Inc., 235 NLRB 808, 810 (1978). From this I conclude that the strike, which began on July 8, was an unfair labor practice strike. Thus, on an unconditional offer to return to work, the strikers, unless disqualified by impermissible picketline misconduct, were entitled to return to their former or substantially equiva- lent positions. Mastro Plastics Corp. v. NLRB, 350 U.S. 270 (1956). This brings into issue whether on September 10 the Union made an unconditional offer on behalf of the em- ployees to terminate the strike and return to work. The Respondent contends the offer by the Union was condi- tioned on the Respondent agreeing to accept and execute the June 4 proposal, which the Union previously reject- ed. Weaver's first handwritten letter to Gayock could certainly be constructed as imposing a condition on the termination of the strike and offer to return to work. The letter indicated the Union accepted the June 4 proposal and the pension plan of June 11. It asked when the Re- spondent wanted to sign the agreement and when the strikers could return to work. Implicit in the language of this letter was that the employees would not terminate the strike and return until the Respondent executed the agreement the Union purported to accept. But this suggestion of a condition for ending the strike and returning to work was fully dispelled when Weaver delivered the second letter to the Respondent later that same day. Although the letter stated the "Agreement" had been ratified, it concluded with the statement that "[a]ll employees are unconditionally prepared to return to work immediately." No words of condition were stated in this second letter even though Weaver was as- serting that the Respondent's offer of June 4 had been accepted. As found by an administrative law judge and affirmed by the Board in another case, "[T]he expression by the Union that it would insist upon a contract based on the Employer's [last] offer while indicating that the strikers would return, though expressed simultaneously, were by no means interdependent." Pepsi Cola Bottling Co., 251 NLRB 187, 1980. Here, as in the Pepsi Cola case, the strike was terminated immediately after the Union's second offer for the employees to return to work, thereby further demonstrating that the offer was not conditioned on the acceptance of the purported agreement. Nor does the conversation that took place be- tween Weaver and Gayock the evening of September 10 regarding the meaning of the Union's offer require any different interpretation. Whether the union representative inside the June 4 proposal had been accepted (as Gayock's testimony would indicate) or whether there was no mention of the purported (as Weaver and Ham- mond's testimony would indicate), analysis of that con- versation does not require a different result. It is evident that whichever version is accepted Weaver told Gayock in unequivocal language that the empoyees had terminat- ed the strike and were prepared to return to work imme- diately. Accordingly, I find that on delivery of the second letter on September 10 the strike was terminated and the Union made an unconditional offer on behalf of the em- ployees to return to work. I further find that this uncon- AMERICAN GYPSUM CO. 115 ditional offer was reasserted on September 16, when the parties met in the Board's offices and Weaver insisted the letters spoke for themselves.32 In light of the above, the Respondent was under a duty to reinstate the striking employees, other than those disqualified ,by serious picket line misconduct, to their former or substantially equivalent positions, discharging if necessary any replacements hired since the inception of the July strike. This Respondent failed to do so. By Gayock's own testimony, the Respondent treated the em- ployees as economic strikers and recalled them as posi- tions became available. Nor was any regard given to re- storing the employees to their former positions or to sub- stantially equivalent positions, as the Respondent did not deem itself under an obligation to lay off any of the strike replacements. The failure on the part of the Re- spondent to reinstate the returning strikers to their former or substantially equivalent positions is in com- plete disregard of the protection afforded them by statute and constitues a violation of Section 8(a)(1) and (3) of the Act. Mastro Plastics Corp., supra. Finally, Gayock admitted to filling two vacancies (bundler and inside cleaner) in mid-October without re- sorting to the bidding procedure contained in the expired agreement. Having found the second strike to be an unfair labor practice strike, I further find that the unfair labor practices contributing to that strike-the refusal to arbitrate grievance disputes over the various dis- charges-were serious enough to nullify application of the no-strike provision of the expired agreement. Mastro Plastic Corp., supra. Therefore, the Respondent was not at liberty to unilaterally alter the terms and conditions of the expired agreement by filing these positions without regard to the bidding procedure contained in that agree- ment. By this conduct, I find the Respondent committed further violations of Section 8(a)(5) and (1) of the Act.33 32 The Charging Party urges that the testimony relating to the circum- stances surrounding the. Union's unconditional offer for the employees to return to work establishes that a new agreement came into being between the parties. The Charging Party argues that the matter was fully litigated and contends such a finding can be made on the basis of the record. By this manuever, the Charging Party is seeking to achieve here that which it could not achieve after filing a charge with the Board's Region- at Office; i e, that the Respondent violated Sec. 8(a)(5) of the Act by re- fusing to execute the agreement on September 16 This charge was inves- tigated and the Regional Director refused to issue a complaint. The Charging Party appealed to the General Counsel and the Regional Direc- tor's action was sustained. Thus, the complaints, which gave rise to the issues tried in this case, contain no allegation that the Respondent violat- ed the Act by refusing to-execute the agreement, nor does the General Counsel make any contention in this regard. Therefore, this issue is not before me and I do not make any finding whether the Respondent's re- fusal to execute the agreement the Union purportedly accepted is a viola- tion of Sec. 8(a)(5). Similarly, the Charging Party urges the discharge of the crew on June 30 violated Sec. 8(a)(3) of the Act. The Charging Party likewise contends this issue was fully litigated and such a finding is war- ranted. This issue was not alleged in the complaints by the General Counsel to be a violation of Sec 8(a)(3) but, rather, it was alleged that the failure to process the grievance over the mass discharge through arbi- tration was a unilateral departure from the terms of the expired agree- ment. The evidence offered was solely for the purposes of supporting this contention, Accordingly, I reject the Charging Party's argument and make no finding of a 8(a)(3) violation of the discharges of the employees on June 30. 33 It is also urged that the reprimand given Steele on October 12 for taking time off for official union business is a further violation of the Act in that it is asserted to be a departure from the provisions of the expired The one remaining issue to be resolved here is the as- serted refusal of the Respondent t reinstate Steve Chavez after the termination of the strike on September 10. The Respondent contends that Chavez was disqualified from reinstatement because he engaged in serious misconduct on the picket line. The General Counsel and the Charg- ing Party contend that Chavez was provoked by Howse (the truckdriver) and Childers in the two separate picket line incidents, and that his conduct was merely an exam- ple of a "trival rough incident or a moment of animal exuberance," which did not remove him from the protec- tion of the Act. See W. C. McQuaide, Inc., 220 NLRB 593, 594 (1975). While it is well settled that every act of impropriety does not automatically remove a striking employee from the protection of the Act,34 I find the conduct of Chavez to be sufficiently egregious to strip him of this protection and disqualify him from reinstatement. Re- garding the incident with the truck, Chavez admitted running alongside the truck and taunting Howse by shouting, "Shoot me." I do not credit Chavez' testimony that Howse swerved his vehicle in an attempt to strike one of the picketing employees, nor do I credit his state- ment that Howse had the barrel of the shotgun pointed out of the truck window when he first started to drive away. Rather, I credit the testimony of Howse that Chavez climbed the ladder of the truck cab as Howse was slowly negotiating the roadway blocked by the pick- eting employees and then jumped down and ran along- side the truck shouting taunts when Howse took the shotgun from the console. I further credit Howse's testi- mony , that Chavez hurled the picket sign through the open window of the truck cab. My findings in this regard are in part based on my observation of Chavez while he was testifying. He seemed to exult in the fact that he would not hesitate to respond to any situation in a physical manner. If there were any doubts concerning his willingness to engage in physical violence, they were dispelled in the incident with Childers. When Childers' automobile was struck by a rock thrown by one of the picketing employ- ees and he got out holding the chuckas in his hand, Chavez was one of the first to meet the "challenge," striking him with the picket sip and kneeing and punch- ing him to the ground. In each instance, Chavez was like a fuse waiting for any spark to innite him into explosive action and from his testimony, seemed to revel in it. Thus, the picket line misconduct by Chavez was more than a display of momentary animal exuberance. Rather, it disclosed a decided willingness to engage in actual physical violence far "beyond the normal give and take of a labor dispute and extended into the area of unpro- agreement The evidence and testimony indicates that the Respondent contended Steele's request did not comport with the notice requirements of that provision of the expired agreement. Therefore, in this instance, the Respondent's actions were based on the'terms of the expired agree- ment, and the dispute is more properly resolved through the grievance procedure than as an unfair labor practice. Accordingly, I do not find the reprimand, in this context, to be a violation of the Act. 34 See Milk Wagon Driver Union v. Meadowmoor Dairies, 312 U.S. 287, 293 (1941); W. C McQuaide, Inc, supra; Ohio Power Co, 216 NLRB 348, 349 (1975). 116 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD tected misconduct." W. C. McQuaide, Inc., supra at 594. Accordingly, I find that the picket line misconduct of Chavez was of such a serious nature that it removed him from the protection of the Act and disqualified him fom reinstatement. CONCLUSIONS OF LAW 1. The Respondent, American Gypsum Company, is an employer within the meaning of Section 2(2) of the Act engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Cement, Lime and Gypsum Workers , Inter- national Union , Local 419, AFL-CIO is a labor organi- zation within the meaning of Section 2(5) of the Act. 3. The above-named labor organization has been, and is now, the execlusive representative of all the employees in the unit described below for the purposes of collective bargaining within the meaning of Section 9(a) of the Act. 4. All production, maintenance, and shipping employ- ees employed by Respondent , American Gypsum Com- pany, at its Albuquerque, New Mexico location , exclud- ing all other employees, office clerical employees , truck- drivers, guards and supervisors, as defined in the Nation- al Labor Relations Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. By failing to notify laid-off employee Henry Owens by certified mail of his recall to work , the Respondent unilaterally departed from the terms of the recently ex- pired collective-bargaining agreement in violation of Sec- tion 8(a)(5) and (1) of the Act. 6. By changing the work schedule on June 27 without regard to the requisite notice required by the terms of the recently expired collective-bargaining agreement, the Respondent unilaterally changed the prevailing terms and conditions of employment in violation of Section 8(a)(5) and ( 1) of the Act. 7. By not granting union representatives time off for official union business in accordance with the provisions of the recently expired collective-bargaining agreement, the Respondent unilaterally changed the prevailing terms and conditions of employment in violation of Section 8(a)(5) and ( 1) of the Act. 8. By refusing to accept and process any grievances from June 11 to July 7 , and thereafter by refusing to ar- bitrate any unresolved grievance disputes , Respondent unilaterally altered the terms of the recently expired col- lective-bargaining agreement in violation of Section 8(a)(5) and (1) of the Act. 9. By filling job vacancies without regard to seniority or to the bidding procedures contained in the recently expired agreement, the Respondent unilaterally altered the prevailing terms and conditions of employment in violation of Section 8(a)(5) and (1) of the Act. 10. The strike action taken by the employees on July 8 was an unfair labor practice strike. 11. By refusing to reinstate the striking employees, other than those disqualified for engaging in serious picket line misconduct, to their former or substantially equivalent positions after an unconditional offer to termi- nate the strike and return to work was made on Septem- ber 10, the Respondent violated Section 8(a)(3) and (1) of the Act. 12. The Respondent did not violate the Act by refus- ing to reinstate employee Steve Chavez, as he was dis- qualified from reinstatement for engaging in serious picket line misconduct during the strike. 13. The above conduct constitutes unfair labor prac- tices affecting commerce within the meaning of Section 2(6) and (7) of the Act. THE REMEDY Having found that the Respondent has committed unfair labor practices within the meaning of Section 8(a)(3), (5), and (1) of the Act, it shall be ordered to cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since the Respondent has refused to honor the arbitra- tion provisions of the expired agreement it shall be or- dered, on request by the Union, to take the grievance disputes, including the disputes over the terminations of Jaramillo, Lagarreta, Valdez, and the entire crew on June 30 through the arbitration process. In addition, the Respondent shall be required to offer immediate rein- statement to all striking employees, other than to those disqualified for serious picket line misconduct on their application to return, and those employees who have made application to return but have not been reinstated, as well as to those employees who have been reinstated but not to their former or substantially equivalent posi- tions, to their former positions, or if those positions no longer exist, to substantially equivalent positions without impairment to their seniority or other rights and privi- leges, dismissing, if necessary, any persons hired as re- placements on or after July 8, 1980. The striking employ- ees shall be made whole for any loss of earnings they may have suffered by reason of the Respondent's refusal to properly reinstate them to their former or substantially equivalent positions . Since the evidence indicates that only employee Van Truc failed to make an application for reinstatement, backpay for this individual shall com- mence 5 days after the date on which he applies for rein- statement to the date of the Respondent's offer of rein- statement, absent a lawful justification for the Respond- ent's failure to make such an offer. Drug Package Co., 228 NLRB 108 (1977). The evidence further indicates that James Ballog made application for reinstatement, but was offered a position he could not fill. For this reason, backpay for Ballog shall commence to run from the date of his application for reinstatement to the date that the Respondent offers him reinstatement to his former or substantially equivalent position . Backpay for all other employees improperly reinstated shall commence from the date of their reinstatement to the date the Respond- ent offers them resinstatement to their former or substan- tially equivalent positions. Backpay and interest thereon shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950); and Florida Steel Corp., 231 NLRB 651 (1977).35 Finally, the Respondent 36 See generally Isis Plumbing Co, 138 NLRB 716 (1962) AMERICAN GYPSUM CO. 117 shall be required to pay premium wages to those em - Backpay on this sum shall be calculated in the manner ployees working on June 27 when the work schedule previously set forth in this.section. was altered without regard to the notice requirements [Recommended Order omitted from publication.] contained in the expired collective-bargaining agreement.