Valley Kitchens, Inc.

686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Valley Kitchens, Inc. and Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO. Cases 9-CA-22271 and 9- CA-22428 16 December 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 21 May 1986 Administrative Law Judge Peter E. Donnelly issued the attached decision. The Respondent filed exceptions and a supporting brief, and the Charging Party filed a brief in oppo- sition to the Respondent's exceptions. 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, 1 and conclusions,2 to modify his remedy,3 and to adopt the recommended Order. ORDER Mark G. Mehas and Jack V. Baker, Esqs, for the General Counsel Paul A. Nemann and Thomas C. Kilcoyne, Esqs., of Cin- cinnati, Ohio, for the Respondent Thomas J Kircher, Esq., of Cincinnati, Ohio, for the Charging Party DECISION STATEMENT OF THE CASE PETER E. DONNELLY, Administrative Law Judge. The charge in Case 9-CA-22271 was filed on 5 August 19851 by Ohio Valley Carpenters District Council, Local Union No 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (the Union or the Charg- ing Party) and a complaint thereon issued on 11 Septem- ber alleging that Valley Kitchens, Inc (Respondent or the Employer) - unlawfully withdrew recognition from the Union on 11 July. The charge in Case 9-CA-22428 was filed by the Union on 24 September and on 4 No- vember an order consolidating cases, consolidated com- plaint, and an order rescheduling hearing issued alleging both unlawful withdrawal of 'recognition from the Union, and that the strike was prolonged by that with- drawal of recognition. Answers were timely filed by Re- spondent, and pursuant to notice a hearing was held before me on 17 December. Briefs have been timely filed by the General Counsel, Respondent, and the Charging Party, which have been considered. The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Valley Kitchens, Inc., Lebanon, Ohio, its officers, agents, successors , and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 ( 1950), enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings ' 2 We agree with the judge's conclusion that the Respondent did not have sufficient objective considerations to support its withdrawal of rec- ognition from the Union In Station KKHI, 284 NLRB 90 (1987), the Board concluded that no presumption should be applied with regard to whether strike replacements support the union The Board stated, "[W)e can discern no overriding generalization about the views held by strike replacements and therefore we decline to maintain or create any pre- sumptions regarding their union sentiments " Applying Station KKHI, to the facts of this case, we conclude, even absent the presumption regarding the strike replacements used by the judge, that the Respondent has not established sufficient objective consid- erations to support its good-faith doubt 3 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) FINDINGS OF FACT 1. THE EMPLOYER The Employer is an Ohio'corporation engaged in the manufacture and wholesale distribution of, kitchen cabi- nets. During the past 12 months, the Employer sold and shipped goods, products, and materials valued in excess of $50,000 from its Lebanon, Ohio facility directly to points outside the State of Ohio The complaint alleges, Respondent admits, and I find that Respondent is an em- ployer engaged in commerce within the meaning of Sec- tion 2(2), (6), and (7) of the Act. II. LABOR ORGANIZATION The complaint alleges, the Respondent admits, and I find that the Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Facts Respondent, as noted above, is engaged in the manu- facture and sale of kitchen cabinets at its Lebanon, Ohio plant. The Union was certified in 1965 as the collective- bargaining representative for a unit of Respondent's pro- duction and maintenance employees . Since 1965 Re- spondent and the Union have negotiated a series of labor agreements for that unit, the most recent being a 2-year i All dates refer to 1985 unless otherwise indicated 287 NLRB No. 69 VALLEY KITCHENS 687 contract expiring on 24 June.2 This contract contains a union-security provision requiring all unit employees to become members of the Union. Prior to 24 June, the parties negotiated, without suc- cess, on a new contract, and on 24 June Respondent ten- dered to the Union its final contract proposal. This proposal was presented to the membership by Monty Erb, Union's International representative, without a recommendation. The membership rejected the propos- al and , against the recommendation of Erb, commenced a strike at 7 a m. on 25 June. Out of a total of 43 em- ployees, 37 went on strike. On 25 June Respondent, as it had already announced, put into effect the terms of its 24 June proposal, with new working conditions and a wage reduction 3 As soon as the strike began, Respondent' s plant man- ager, James Porter, began hiring replacements. Ralph Kinsworthy, Respondent's president, testified that Porter told him, concerning the union sentiments of the replace- ments, "In general he [Porter] felt that the new hires were not union oriented, and, in some instances, had definitely stated that they did not support the union, did not want to belong to the union." In further support of his belief that the Union lacked majority representation in the unit, Kinsworthy testified- "Because of the people that had stayed, both on the strike and had returned from the strike. Because of the indications that I had re- ceived from Mr. Porter, plus talking to some of the people. I did not feel that if there were a vote at that time, between the members that were on strike, which, of course, could vote also, and the people that were em- ployed and on active duty at the plant at that time, I did not feel that they had a majority."4 Further, "And be- cause of the fact that they had recommended it [final proposal] and the workers voted against their recommen- dations,] I did not feel that the union controlled those workers anymore, at that point, or apparently gave them the type of representation that they wanted. And, of course, naturally, the workers that had came back to work, all had to cross picket lines to come in. Just the entire combination of everything, that workers were coming back-coming in across the picket line, both to sign up, and-well, what I had testified to previously,- that they had to cross that picket line every day to go to work. I felt that the entire combination-I just did not feel that they held a majority at that time." Kinsworthy also testified that only two employees remained from the original unit certified in 1965 Janice Kinsworthy, vice president and secretary of Respondent, testified that 2 The contract unit reads All employees employed by Valley Kitchens, Inc, including produc- tion and maintenance employees , installer employees, warehouse em- ployees, truckdrivers, but excluding all office clerical employees, salesmen, guards, professional employees and supervisors as defined in the Act ' There is no allegation that implementation by Respondent of its 24 June proposal violates the Act, and that issue is not treated 4 However, as to any of his own conversations with replacements about their union orientation, Kmsworthy testified, "I happened to have talked to a couple of the people, but I did not pursue it, no " 5 Although it appears that Erb did recommend against striking, he did not recommend acceptance of the Respondent's final proposal As Erb testified, he wanted to continue negotiations, and presented the final pro- posal to the membership without any recommendation Porter had told her, without indicating how many, "That any number of the people were saying that they wanted to come to work They were not union oriented, did not want anything to do with the union and wanted to work." Porter, himself, testified that advertisements for replacements in the Lebanon Star stated that "Applicants must be willing to cross picket line " Porter also testified that he did not discuss union with the applicants, but did tell them that they would have to cross the picket line. He also told them that they would not be replaced by strikers when the strike ended, even though the strikers would probably return. Porter testified that he also ad- vised them that they would be working under the terms of the Respondent's final contract proposal made to the Union on 24 June. According to Porter, none of the re- placements expressed any desire for union representation. Porter also testified, "I don't remember anyone saying that they wanted to be represented by the union I did have-there were a few of these people that had worked previously, in the union, that said we didn't need a union " Porter identified these people as C. Combs, B. Dotson, J. Howard, and J Copas. Porter testified that he told Ralph Kinsworthy'about his conversations with the replacements.6 Regarding the union sentiments of the striking employ- ees, Phyllis Twilley, a leadperson in the plant and a union shop steward, testified that during the strike she made several visits to the plant on employee-related mat- ters, wherein she spoke to Kinsworthy about the union feelings of the striking employees. Twilley testified that she did not identify these employees to Kinsworthy, but told her, "The people that I talked with didn't want the strike as it was progressing and wasn't getting anywhere. And when I talked to her I would say this."7 After the strike began. two bargaining sessions were held on 8 and 11 July, both attended by Erb, Ralph Kinsworthy, and a Federal mediator. Nothing of sub- stance was accomplished at the 8 July meeting, with Re- spondent adhering to its already-implemented final pro- posal. At the 11 July meeting, Ralph Kinsworthy gave to both Erb and the Federal mediator a letter dated 11 July from Kinsworthy to Erb, which read: As you know, the Company has been hiring new permanent employees since the members of your Bargaining Unit went on strike on June 25, 1985. Substantially all employees who have not returned to work have been replaced , and it appears that you may no longer represent a majority of the employ- ees of Valley Kitchens, Inc. For this reason, we feel that we are not in a posi- tion to continue negotiations at this time, unless it is demonstrated that the Union still represents a ma- jority of the Company workers. If you have any questions , please let us know. a None of the replacements testified at the hearing ' Twilley testified that several strikers, whom she identified in her tes- timony, told her that they no longer wanted to be represented by the Union However, it does not appear that Twilley relayed that informa- tion to Kinsworthy Further, Twilley testified that none of the striking employees told her that they were resigning from the Union, and all re- tained union membership and stayed with the strike until it ended 688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Erb testified that at the time of receiving the letter on II July, the Union was losing the strike. Replacements were filling the strikers positions and the striking em- ployees were "panicking." In this posture Erb testified that he was disposed to recommend to the members that they end the strike and also to accept the 24 June final proposal, "upon some modification. However, accord- ing to Erb, the 11 July letter precluded any accommoda- tion by denying the Union bargaining status. Erb testi- fied, "It [Respondent] said that we didn't represent the people. I thought the Labor Board was the one that had elections to see whether you represent the people or not." Further, "Because I think that we had-that we had the presentations to you-that possibly the company would have took under considerations." The 11 July meeting produced nothing of substance, and shortly after delivery of the letter; the meeting ended. By letter dated 11 July, counsel for the Union protest- ed to Ralph Kinsworthy. The letter reads: This will confirm . your correspondence to L. Monty Erb, Business Manager, OVCDC, Local 415, of July 10, 1985 in which you advised Mr. Erb that, due to the fact of your hiring permanent em- ployees for those currently on strike, that OVCDC Local 415 no longer represents a majority of Valley Kitchens', employees As a result of this stated "belief", you have advised Local 415 that you will no longer meet and negotiate with them for a new contract. Please be advised that a strike, and your hiring of permanent replacements does not obviate or negate your duty to bargain with the representatives of your employees. The mere hiring of a number of permanent replacements does not remove OVCDC, Local 415 as bargaining representative. Your legal counsel may advise you as to if that is possible. Section 8(d) of the National Labor Relations Act, as amended, imposes upon you a duty to meet and negotiate in good faith. 29 U.S.C. 8(a) 158(d). Fail- ure to do so violates 8(a)(5) of the Act. 29 U S.C. 158(a)(5). Your action of failing and refusing to meet ' with the legally authorized representative of your employees constitutes a violation of 8(a)(5) and that unfair labor practice has prolonged, and will continue to prolong, the strike against Valley Kitchens by members and supporters of OVCDC Local 415. On 19 July, the membership met to decide whether to end the strike. According to Erb, such a meeting was necessary because the Respondent was hiring replace- ments for the striking employees and because Respond- ent was refusing to recognize the Union as bargaining agent for the employees, thus precluding any possibility of a negotiated resolution of the dispute. The employees concluded that the strike had been lost, and voted to end the strike. On 22 July Erb sent to Ralph Kinsworthy the following letter: Local Union No 415 Industrial notifies Valley Kitchens, Inc. that the strike by its members em- ployed by Valley Kitchens, Inc. is terminated effec- tive 3:45 P M., July 19, 1985. The attached list details the employees who have offered themselves unconditionally to return to work immediately As noted, this offer is by the Local on behalf of all those individuals who signed, and by the individual themselves. Termination of the strike and unconditional offers of return to work are made without prejudice to the rights of all employees as a result of unfair labor practices committed by you, which have prolonged the strike. Local Union No. 415 Industrial will continue to negotiate for a new agreement with Valley Kitch- ens, Inc. as the Respresentative of the Employees. It is undisputed that since the strike ended, all those strikers whom the Respondent has been able to contact have been offered reemployment. The last striker having been rehired on 21 October. B. Analysis and Conclusions It is well established that once a' union's majority status has been formalized in a collective-bargaining agreement , that union's majority status is presumed to survive the expiration of the contract. Master Slack Corp.; 271 -NLRB 78 (1984); Guerdon Industries, 218 NLRB 658 (1975). However, that presumption may be' rebutted by a showingieither that the union in fact no longer represents a majority of the unit employees or that the-employer has a good-faith belief, based on objec- tive considerations, that the union no longer represents a majority of those employees. The burden of proof in this regard rests on the employer, and evidence of objective considerations must be established to form a'reasonable basis for such a good-faith doubt of the union's majority status. Pennco, Inc., 250 NLRB 716 (1980), enf. denied on other grounds 684 F 2d 340 (6th Cir 1982), cert. denied 459 U.S. 994 (1982). Absent such a showing, withdrawal - of recognition by' an employer, even after the expiration of the contract, violates the Act Respondent argues that it did have a good-faith belief that the Union no longer represented 'a majority of the employees on 11 July, and so justified any withdrawal of recognition.8 With respect to the replacements,' Respond- ent contends that, having determined to cross ,the picket line, the replacements must be presumed not to support the Union Although there appears to be some support for this position in the language of various Federal court decisions,9 the Board, whose precedents I am obliged to 8 Respondent in its brief appears to suggest that the letter of 11 July was not a withdrawal of recognition, but merely a request for the Union to present indications of a majority support However, the unambiguous language of the letter makes it clear that the Respondent was refusing to continue negotiations unless the Union demonstrated majority support in the unit, and is clearly a withdrawal of recognition 9 National Car Rental Systems v NLRB, 594 F 2d 1203 (8th Cir 1979), Soule Glass Co v NLRB, 652 F 2d 1055 (1st Cir 1981), NLRB v Ran- dale Eastern Ambulance Service, 584 F 2d 720 (5th Cir 1978) VALLEY KITCHENS follow, has not yet departed from its holding in Pennco, supra, that absent objective evidence to the contrary, striker replacements are presumed to support the union in the same ratio as those strikers being replaced. In Pennco, supra, the Board said: Similarly, the Board, with court approval, has held that a replacement hired for a striking employee cannot, without more, be presumed to reject the union as his bargaining representative. Such a worker also may be compelled to seek employment, or may disapprove of the strike in question, but would support other union initiatives Thus, in light of this uncertainty as to the reasons employees cross a picket line, Respondent's presumption alone is clearly not sufficient to rebut the presumption of majority status nor its corollary that new employ- ees, including strike replacements, are presumed to support the Union in the same ratio as those they replace. 10 Accordingly, I conclude that unless Respondent pro- vides objective evidence in addition to merely crossing the picket line to show that the replacements rejected representation by the Union, the presumption of replace- ment support for the Union must prevail. In further support of its effort to show that the re- placements did not support the Union, Porter testified concerning his conversations with some of the replace- ments, as set out above. A review of this testimony re- veals that Porter did not specifically discuss the Union with the replacements, and that for the most part they expressed no preference. I cannot conclude from such general and unspecific testimony that the replacements, none of whom testified, were rejecting union representa- tion.11 The Kinsworthys testified that Porter told them that the replacements expressed their lack of support for the Union. This conflicts with Porter's testimony that only four expressed any lack of support for union representa- tion and that he did not discuss union with the replace- ments In this regard, having reviewed the relevant testi- mony, I credit Porter and conclude that the Kinsworthys were not told by Porter that the replacements did not want union representation This being the case, I con- clude that Respondent did not have sufficient objective evidence to conclude that the replacements were reject- ing union representation when it withdrew recognition from the Union on I I July. As of 11 July, Respondent employed a total of 46 em- ployees. This employee complement consisted of 35 striker replacements, 6 employees who did not join the 11 Although the Board has, in some recent cases, declined to rely on Pennco as the basis for its findings, the precedential force of the Pennco holding is not yet diminished In this regard see Wilder Construction, 276 NLRB 977 (1985), and Hydro Conduit Corp, 278 NLRB 1124 (1986) 31 Even crediting Porter that employees Combs, Dotson, Howard, and Copas told them that they did not need a union, this expression of indif- ference still falls short of a showing that they were rejecting union repre- sentation However, Copas said, "Fuck the Union," and such an expres- sion of hostility is sufficient, in my opinion, to conclude that he was re- jecting union representation 689 strike, and 5 employees who struck and later returned to work prior to 11 July. Out of the original 37 striking employees, 5 returned to work prior to 11 July, as noted above, 3 resigned prior to 11 July, and 1 died prior to 11 July, leaving a total of 28 employees on strike as of 11 July. Thus, a voting group of some 74 employees (46 employees plus 28 striking employees) existed on I1 July. Having con- cluded that the replacements are presumed to support the Union in the same proportion as those employees they replace, it is clear that 28 replacements must be pre- sumed to support the Union. Thus the Union is presumed to represent at a minimum, the 28 strikers12 and 28 re- placements, for a total of 56. Even if we were to assume that all 19 remaining employees rejected union represen- tation, this falls far short of a majority. 13 In short, I conclude that the Union enjoyed a pre- sumption that the replacements supported the Union in the same proportion as those employees being replaced, and that the Respondent had no objective basis sufficient to overcome that presumption, or to support a belief that the Union had lost its majority status as collective-bar- gaining representative of the employees. Respondent also argues that objective evidence to sup- port a good-faith doubt of majority status derives from the testimony that only two employees in the bargaining unit on 11 July were employed at the time of the certifi- cation election in 1965. However, employee turnover, even over a long period since the time of certification, will not suffice to provide the objective considerations necessary to support a good-faith belief that a union has lost its majority status. This is particularly true in the in- stant case, since all employees were obligated to acquire and maintain union membership under contractual union- security provisions, as a condition of employment. Respondent also contends that a legitimate good-faith doubt is supported by evidence that the bargaining unit employees voted to reject the contract and to strike, against the recommendations of the Union, and that this shows a withdrawal of employee support for union rep- resentation. This contention I also reject. First, I have concluded that Erb did not recommend accepting the contract and, second, even though the membership and Erb may have disagreed, with Erb favoring a continu- ation of negotiations and the membership favoring a strike, such a difference of opinion is not in my opinion tantamount to a rejection by the employees of union rep- resentation Respondent also takes the position that, having bar- gained to impasse prior to the expiration of the contract, 12 In this regard, I note that the evidence, specifically Twilley's testi- mony, is totally insufficient to conclude that any of the 28 strikers had in fact rejected the Union or that Respondent believed in good faith that they had, especially since it appears that none resigned union membership and all stayed on strike until it ended Because Twilley never told Mrs Kinsworthy that some strikers were saying they no longer wanted the Union, this could not have been the basis for any good-faith doubt of ma- jority status by Respondent 13 In these circumstances it is unnecessary to consider whether Re- spondent has supported by objective considerations any good-faith doubt of majority status as to any of the remaining 19 employees, including those who did not strike and those who struck and returned to work prior to I1 July 690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD it was not obliged to continue bargaining thereafter, and that, therefore, its actions on 11 July did not constitute an unfair labor practice. As noted above, the General Counsel makes no contention that Respondent violated Section 8(a)(5) of the Act by unilaterally implementing its final contract proposal on 25 June. Respondent ap- pears to suggest that the General Counsel is conceding that an impasse existed at that time which permitted im- plementation of the final offer. However, the matter of impasse was not litigated and I make no findings in that regard. However, even assuming that impasse had been reached, the existence of such an impasse while it might have privileged the unilateral implementation of the Re- spondent's final contract proposal, so as to preclude the obligation to continue bargaining thereon, the existence of such an impasse does not privilege Respondent to withdraw recognition from the Union as the collective- bargaining representative of the unit employee, which is what the Respondent did on 11 July and which violates the Act. With respect to the nature of this strike, it is undis- puted that, at its inception,'the strike was an economic strike. The Geneneral Counsel, however, contends that when Respondent withdrew recognition from the Union on ll'July the strike was converted from an economic strike to an unfair labor practice strike. I agree. When it withdrew recognition and ended negotiations with the Union on 11 July, Respondent removed all possibility of negotiating a successor to the expired contract. Although it is true that one may not say with certainty that. an agreement would have been reached, it is evident that any possibility of settlement was blocked by the Re- spondent's actions. In these circumstances, I conclude that the Respondent's unfair labor practice in withdraw- ing recognition and ending negotiations on 11 July con- verted the economic strike into an unfair labor practice strike at that time. Vulcan-Hart Corp., 262 NLRB 167 fn. 4 (1982); Pennco, Inc., supra; Whisper 'Soft Mills, 267 NLRB 813, 816 (1983). IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's oper- ations described in section I, above, have a close and in- timate relationship to trade, traffic, and commerce among the several States and tend to lead to labor dis- putes burdening and obstructing commerce and the free flow of commerce. THE REMEDY 14 Having found that Respondent has engaged in and is engaging in unfair labor practices, I shall recommend " The General Counsel, in its brief requests the inclusion of a visitator- tal clause in any recommended Order, authorizing the Board to engage in discovery under the Federal Rules for Civil Procedure so that it would be able to monitor compliance with the Board's Order as enforced by the court of appeals Although the General Counsel in its brief advocates the inclusion of such a cause, it does not address the propriety of such an order to the circumstances of the instant case The Board has not adopt- ed this general approach, and it had declined to include a visitatonal clause where it was not appropriate to the circumstances of the case In that they cease and desist therefrom and take certain af- firmative action necessary to effectuate the policies of the Act. Under the Board's ruling in Whisper Soft Mills, supra, in which employer unfair labor practices have been de- termined to have prolonged a strike, striking employees not permanently replaced prior to the unfair labor prac- tices must be reinstated, on their unconditional offer to return to work, discharging, if necessary, any replace- ments hired after that date. It appears that as of 11 July, the date of unfair labor practice prolonging the strike, 35 replacements had been hired and this number exceeds the 28 employees still striking at the time of the strikers' un- conditional offer to return to work on 23 July. Custom- ary remedial procedures also provide that those striking employees for whom no employment is immediately available shall be placed on a preferential hiring list for employment as positions become available and before other persons are hired for such work. Priority for such placement on such list is to be determined by seniority or some other nondiscriminatory test. Any striking employ- ee eligible for reinstatement under this formula shall be made whole for any losses suffered by them and back- pay, with interest thereon, shall be computed in the manner prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), and Florida Steel Corp., 231 NLRB 615 (1977). 15 The record, as noted above, suggests that appli- cation of the Whisper Soft remedy my be moot in some respects thus obviating, to that extent, remedial action by Respondent; however, full remedial relief is recommend- ed for determination at the compliance stage of this matter as to whatever relief may still be appropriate. CONCLUSIONS OF LAW 1. Valley Kitchens, Inc. is an employer within the meaning of Section 2(2), (6), and (7) of the Act. 2 Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO is a labor organization within the meaning of Section 2(5) of the Act. 3. At all times material the following described con- tract unit has been an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act, such unit being specified in the unit de- scription of the collective-bargaining agreement between Respondent and the Union effective 24 June 1983 to 24 June 1985. 4. At all times material the Union has been and is now the exclusive representative of the employees in the above-described bargaining unit for the purposes of col- lective bargaining within the meaning of Section 9(a) of the Act. 5. By withdrawing recognition on 11 July and by re- fusing to recognize or bargain with the Union since that date, Respondent has violated Section 8(a)(5) and (1) of the Act. this regard see 0 L Willis, Inc, 278 NLRB 203 (1986), Rebel Coal Co, 279 NLRB 141 (1986) Accordingly, the General Counsel's request for a visitatorial clause is denied i s See generally Isis Plumbing Co, 138 NLRB 716 (1962) VALLEY KITCHENS 6. The strike which commenced on 25 June was con- verted to an unfair labor practice strike on 11 July, the date Respondent withdrew recognition and refused to bargain with the Union. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- edie ORDER The Respondent, Valley Kitchens, Inc., Lebanon, Ohio, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain in good faith with Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO as the exclusive repre- sentative of its employees in the following contract unit. All employees employed by Valley Kitchens, Inc., including production and maintenance employees, installer employees, warehouse employees, and truckdrivers, but excluding all office clerical em- ployees, salesmen, guards, professional employees and supervisors as defined by the National Labor Relations Act of 1947. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Recognize and, on request, bargain in good faith with the Union as the exclusive representative of its em- ployees in the above-described unit and, if an under- standing is reached, embody such an understanding in a signed contract. (b) Reinstate, on unconditional request, all strikers who were not permanently replaced before 11 July 1985 to the their former jobs or, if such positions no longer exists, to substantially equivalent positions, without prej- udice to their seniority or other rights and privileges pre- viously enjoyed, discharging, if "necessary, and replace- ments hired after 11 July 1985, and make such employees whole for any loss of earnings resulting from its failure to reinstate them within 5 days of their unconditional re- quest in the manner set forth in the remedy section of this decision Such employees for whom no employment is available shall be placed on a preferential hiring list based on seniority, or some other nondiscriminatory test for employment, as jobs become available. (c) Preserve and, on request, make available to the Board or its agents for examination and copying, all pay- roll records, social security payment records, timecards, personnel records and reports, and all other records nec- essary to analyze the amount of backpay due under the terms of this Order. 16 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses 691 (d) Post at its place of business in Lebanon, Ohio, copies of the attached notice marked "Appendix." 17 Copies of the notice, on forms provided by the Regional Director for Region 9, after being signed by the Re- spondent's authorized representative, shall be posted by the Respondent immediately upon receipt and maintained for 60 consecutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respond- ent to ensure that the notices are not altered, defaced, or covered by any other material (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply 17 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 The National Labor Relations Board has found that we violated the National Labor Relations Act and has or- dered us to post and abide by this notice WE WILL NOT refuse to recognize and bargain in good faith with Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO as the exclusive rep- resentative of our employees in the following contract unit: All employees employed by Valley Kitchens, Inc., including production and maintenance employees, installer employees, warehouse employees, and truckdrivers, but excluding all office clerical em- ployees, salesmen , guards, professional employees and supervisors as defined by the National Labor Relations Act of 1947. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights guaranteed in Section 7 of the Act. WE WILL recognize and, on request, bargain in good faith with Ohio Valley Carpenters District Council, Local Union No. 415, United Brotherhood of Carpenters and Joiners of America, AFL-CIO as the exclusive rep- resentative of our employees in the above-described unit and, if an understanding is reached, embody such under- standing in a signed contract WE WILL reinstate on unconditional request, all strik- ers who were not permanently replaced before 11 July 1985 to their former jobs or, if such position no longer exists, to substantial equivalent positions without preju- dice to their seniority or other rights and privileges pre- 692 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD viously enjoyed, discharging, if necessary , any replace- is available shall be placed on a preferential hiring list ments hired after 11 July 1985, and make such employees based on seniority or some other nondiscriminatory test whole for any loss of earnings resulting from our failure for employment, as jobs become available to reinstate them within 5 days of their unconditional re- quest in the manner set forth in the remedy section of VALLEY KITCHENS, INC. this decision . Such employees for whom no employment