Geo. C. Christopher & Son, Inc.

472 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Geo. C. Christopher & Son, Inc. and Local Lodge 286, International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers, AFL-CIO. Cases 17-CA-12952 and 17-CA-13125 July 29, 1988 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On August 5, 1987 , Administrative Law Judge Marion C. Ladwig issued the attached decision. The Respondent filed exceptions and a supporting brief. The General Counsel filed cross-exceptions and brief in support thereof and in answer 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,' and conclusions2 and to adopt the recommended Order. 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent , Geo. C. Christopher & Son, Inc., Wichita, Kansas, its offi- cers, agents, successors, and assigns, shall take the action set forth in the Order. ' No exceptions were filed to the judge 's failure to find that, assuming Sec. 8(d) did not preclude altering the terms and conditions of the con- tract, the Respondent's unilateral reduction of wages was still unlawful because the parties had not reached a legal impasse in their bargaining over wages 2 In addition to the rationale set forth in the judge's decision concern- ing the Respondent 's failure to give 8(d)(3) notices and its resultant obli- gation to refrain from making unilateral changes in terms and conditions of employment established by the parties' contract, we rely on the Board's analysis of this obligation in Petroleum Maintenance Co, 290 NLRB 460 (1988). ' The General Counsel's exceptions urge modification of the recom- mended Order to include a provision for a visitatorial clause . Under the circumstances of this case , we find it unnecessary to include such a clause See Cherokee Marine Terminal, 287 NLRB 1080 (1988) Stanley D. Williams Esq., for the General Counsel. Milo M. Unruh and Stuart R. Collier, Esqs., of Wichita, Kansas, for the Respondent. Robert L. Dameron, Esq. and Donald L. Spatz, of Kansas City, Kansas, for the Charging Party. DECISION STATEMENT OF THE CASE MARION C. LADWIG, Administrative Law Judge. These cases were tried at Witchita, Kansas, on 18-19 December 19861 and on 12-16 January and 25-27 Febru- ary 1987. The charges were filed by the Union 23 April and 16 September, and a consolidated complaint was issued 16 October. Faced with large financial losses the company in Janu- ary reopened its 1985-1988 agreement with the Union, seeking a wage reduction . On failing to agree on the amount of the reduction the Company notified the Union on 4 April that it was terminating the agreement, even though it had failed to send the 30-day notices required by Section 8(d)(3) of the National Labor Relations Act. The primary issues are whether the Company, the Re- spondent, (a) told an employee that the Union no longer represented the employees and (b) unlawfully failed to continue in effect the terms and conditions of the agree- ment by reducing wages, making other changes, and laying off employees without honoring the contractual seniority provisions, in violation of Section 8(a)(1) and (5) of the Act. On the entire record,2 including my observations of the demeanor of the witnesses, and after considering the briefs filed by the General Counsel and the Company, I make the following FINDINGS OF FACT 1. JURISDICTION The Company, a corporation, fabricates structural steel and operates a steel service center in Wichita , Kansas, where it annually ships goods valued over $50,000 di- rectly outside the State . The Company admits and I find that it is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. Failure to Give 8(d)(3) Notices 1. Statutory requirement ignored On 1 April 1985 the Company and the Union signed a collective-bargaining agreement effective from then until 1 April 1988 (G.C. Exh. 1E, Exh. 1, art. 29.1 at 33). The 1985-1988 agreement provided (art. 28 at 32) for the fol- lowing wage reopener: 28.6 The Company agrees to meet with the Union during the month of January for the purpose of considering the wage rates to become effective April 1, 1986 ... . 28.7 Upon failure on the part of the parties to reach an agreement under 28 .6, either party may give notice of intent to terminate this Agreement ef- fective April 1, 1986... . It is undisputed that there was never any mention of the statutory notice requirements in 1982 when a similar wage reopener was included in the prior agreement, in 1985 when the 1985-1988 agreement was negotiated, or ' All dates are in 1986 unless otherwise indicated. 2 By agreement of the parties an amended seniority list is received as G.C. Exh 27. 290 NLRB No. 61 GEO. C. CHRISTOPHER & SON in 1986 during the wage negotiations before 1 April (Tr. 1261-1268, 1295). On 3 January the Company sent the Union a reopener letter (G.C. Exh. 2). In the wage negotiations that fol- lowed the Company proposed a 20-percent wage reduc- tion to be effective 1 April, and the Union proposed an 18- or 20-percent wage increase. By their third negotiat- ing session on 31 March the Company and Union re- duced their wage demands in a continuing effort to reach agreement. The Union proposed a 7-1/2-percent reduc- tion (deferring a wage increase), and the company re- duced its demand to a 14-percent reduction. (Tr. 112, 1258; G.C. Exh. 1E, Ledermann's affidavit at 14.) Meanwhile the Company (Tr. 26) failed to give the 30- day notice of the dispute to the Federal Mediation and Conciliation Service and the Kansas Department of Human Resources as required in Section 8(d)(3) of the Act. Weathercraft Co. of Topeka, 276 NLRB 452, 453 (1985). In the 31 March meeting Union Representative Donald Spatz (the International's director of education) suggested that a Federal mediator be invited to assist in the negotiations, but to no avail. He credibly testified (as confirmed in his 9 April letter discussed below) as fol- lows (Tr. 116): A. I think I had made a suggestion during the course of the meeting that a . . . federal mediator might be helpful to us in resolving the difference between us. Q. Okay. And did the company respond at all to your suggestion? A. Mr. [George] Christopher [the company presi- dent] indicated that (inaudible). (I find it unnecessary to make a finding on the content of this and other "inaudible" testimony-or to correct other errors in the transcript typist's understanding or identify- ing persons speaking at the trial-resulting from the use of an electronic reporting system in these proceedings.) Ignoring its failure to give the 8(d)(3) 30-day notices, the Company produced a letter at this 31 March meeting to terminate the agreement at 12:01 a.m. on 1 April if a wage agreement was not reached . It "volunteered," however, to extend the agreement 3 days to give the union membership an opportunity to vote on accepting its last proposal. (Tr. 114, 1260, 1462; Ledermann's affi- davit at 14.) It then presented to the Union , and they signed, a previously prepared extension agreement enti- tled "Interim Agreement" (G.C. Exhs. lE and 2). It stated that Notwithstanding any provision to the contrary appearing in Article 28.6 . . . or in Article 28.7 of the [1985-1988] Agreement . . . the undersigned parties stipulate and agree that if an agreement [on] wage rates . . . is not reached by 11:59 p.m. on April 3, 1986, either of the undersigned shall have the right to terminate the . . . Agreement by notice in writing delivered to the other not later than 11:59 p.m. on April 4, 1986... . 473 If either of the undersigned terminates the .. . Agreement pursuant to the terms of this Stipulation and Agreement, the effective date of termination shall be 12 :01 a.m., April 1, 1986. On 4 April the Company again ignored its failure to give the 8(d)(3) 30-day notices and the requirement in Section 8(d)(4) that it continue "in full force and effect ... all the terms and conditions of the existing contract for a period of sixty days after [the Section 8(d)(1) termi- nation or modification] notice [followed by the 30-day notices] is given." After learning that the Union had re- jected its last offer, the Company on 4 April sent the Union a notice (G.C. Exhs. IE and 3) that the 1985-1988 agreement is "declared terminated as of 12:01 a.m. April 1, 1986." On 9 April Representative Spartz sent the Company a letter (G.C. Exh. 11) responding to the termination notice, requesting continued negotiations , and stating that As I stated in our last negotiations, I believe as- sistance of the Federal Mediation and Conciliation Service may be helpful. May I have your position on this? On 23 April the company counsel answered (G.C. Exh. 12) stating in part that With respect to the company's view on the Fed- eral Mediation and Conciliation Service, our client believes that the mediation service may (and should) decline to participate in such mediation until the parties have had sufficient negotiations . . . to define any unresolved issues which may exist be- tween them. [Emphasis added.] 2. Contentions and concluding findings The Company contends in its brief (Br. 8-9 ) that "by executing the interim agreement dated March 31, 1986," the Union (1) is "estopped to claim that notice by the Company to the Federal Mediation and Conciliation Service must be given at least 30 days prior to termina- tion," (2) "waived any right it had to claim the Company had not given 30 days prior notice ," and (3) "acquiesced in and clearly recognized and acknowledged the compa- ny's right to terminate the contact." The Company argues (Br. 16-17) that [T]he interim agreement provides the method of termination of contract. No contention has been made by the General Counsel or the union that the interim agreement is unlawful or that any term [in it] is prohibited by law. Additionally, this writer has researched and can find no statutory prohibition of waiver of the 8(d) notices. Curiously the General Counsel has totally ignored what would appear to be the crux of the whole matter . What were the parties' rights and obligations following execution of the interim agreement? [The Company] suggests ... that the interim agreement must be enforced as agreed to by the Union; and that to imply into the agreement the 30-day notice provision of 8(dX3) would totally obliterate what the parties agreed to 474 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD in clear and unequivocable language. General Coun- sel would have [the Company] do the impossible, i.e., give 30 days notice prior to the termination date called for by the interim agreement (April 3). The parties couldn't have possibly intended such an absurd result. . . . The interim agreement must be enforced as written. The Company overlooks, or ignores, the often-cited ruling by the Supreme Court that the 8(d) "notice re- quirement operates wholly independently of whatever notice requirement the parties have fixed for them- selves." NLRB v. Lion Oil Co., 352 U.S. 282, 292-293 (1957). The Board cited this ruling in United Marine Division Local 333 (General Marine), 228 NLRB 1107, 1108 (1977), in which a contractual provision permitted the union to terminate the agreement without notice if the employer became delinquent in making payments to the pension and welfare fund . The Board held that the 8(d)(3) 30-day notices (as well as the 8(d)(1) 60-day ter- mination notice) must be sent. The lack of contractual notice requirements for such "mid-term" termination cannot operate . . . as a license to the parties to ignore the statutory notice requirements . . . . In [the Lion Oil case] the Su- preme Court found that the congressional intent was that parties not be able to avoid the notice re- quirements of Section 8(d) . . . . Thus, the Su- preme Court stated, "One thing the most authorita- tive gloss of § 8(d), the report of the Senate Com- mittee, makes clear is that the statutory notice re- quirement operates wholly independently of what- ever notice requirement the parties have fixed for themselves." As held in Weathercraft Co., supra, 276 NLRB at 453, "Failure of a party desiring to terminate or modify a col- lective-bargaining agreement to give appropriate notice under Section 8(d)(3) precludes it from altering terms or conditions of the collective-bargaining agreement." Whether the 31 March interim agreement is "in sub- stance and form a Collective Bargaining Agreement" and "a binding contract" (as the Company contends in its Br. 9 and 20) or whether it is merely a 3-day extension of the 1985-1988 agreement, the Company was obligated to continue in effect the terms and conditions of the agree- ment until 30 days after the 8(d)(3) notices were sent. The obligation was a statutory requirement that existed both before and after the interim agreement was signed. The "statutory notice requirement operates wholly inde- pendently of whatever notice requirement the parties have fixed for themselves." The Company, having failed to give the 8(d)(3) 30-day notice to the Federal Mediation and Conciliation Service and the Kansas Department of Human Resources (Tr. 1316, 1461; G.C. Exh . 22), I find that it was required by Section 8(d)(4) to continue in effect "all the terms and conditions" of the collective-bargaining agreement until 30 days after it has given the statutory 30-day notices. B. Coercive Statements The complaint alleges that about 11 April Vice Presi- dent George Ledermann and Employee Service Manager Stan Koehler told an employee that the Union no longer represented the employees in the bargaining unit. Employee Michael Donohue testified that on 11 April, when he and others were called to the office (to be laid off), he asked Koehler for a union representative at the meeting. He recalled (Tr. 152-153) that Koehler said "that I was not entitled at this time to union representa- tion because as far as the company was concerned we no longer had a contract with the union and the union was not our bargaining party." He also recalled (Tr. 153-154) that Ledermann later told him that "the contract being no longer in effect I was not entitled to union representa- tion, that the union was not my bargaining committee anymore." Similarly employee Patrick Bauer (who over- heard Donohue's conversation with Koehler) recalled (Tr. 164) that Koehler said, "We no longer recognize the union because we're working without a contract anyway." Although Donohue and Bauer impressed me as being honest witnesses, I find that they either misunderstood or did not recall correctly why Koehler and Ledermann told Donohue that he was not entitled to union represen- tation at the meeting . Both Koehler and Ledermann re- called telling Donohue that this was not the kind of meeting that required union representation , and Leder- mann recalled : "I mentioned to him that the contract was no longer in effect" because "I gleaned from him that he felt that the contract provided for him to have a representative whenever he had to come to Personnel." (Tr. 1342, 1354-1455.) I credit the denials (Tr. 1371, 1455) and find that this allegation must be dismissed. C. Reduced Wages and Other Changes Since 4 April the Company has taken the position that it lawfully terminated the 1985-1988 agreement effective 1 April and that none of the contractual provisions have been in effect since then. On 11 April the Company im- plemented the proposed 14-percent wage reduction con- tained in its 31 March offer. By letter dated I1 April (G.C. Exh. 5) it notified the employees that the reduc- tion would be effective 14 April. In addition, without any notice to the Union , the Com- pany in April made other changes on which there had been no bargaining. (1) It failed (Tr. 1444-1445) to abide by the grievance-and-arbitration procedure in the 1985- 1988 agreement. (2) It promoted (G.C. Exhs. 10 and 18) fabrication leadmen Stephen Hogg , James Miser, and Mark Throckmorton; maintenance leadman Robert Wellner; material leadman Benny Jackson; parts leadman Francis Newman; and the service center leadman Donald Conrad to the supervisory position of crew chief. The Company admits (Tr. 90) that these seven persons con- tinued to perform the same work even though article 28.1(g) of the agreement (at 31) prohibited crew chiefs from performing bargaining unit work "while employees are laid off in that classification ." (3) The Company re- fused to honor the dues-checkoff provisions in the agree- GEO. C. CHRISTOPHER & SON ment. (4) The Company discontinued making the pension benefit contribution of 24 cents an hour required in the agreement (art. 6), although it has placed the contribu- tions in an escrow or accrued account (Tr. 95, 97) pend- ing the outcome of this proceeding. (5) It failed to follow the contractual layoff requirements, as discussed below. The Company admits in its brief (Br. 10) that it re- duced the wages, instituted a new grievance procedure, promoted leadmen to crew chiefs, ceased collecting union dues, and ceased making contributions to the future service pension plan. It contends, however, that "upon the termination of the April 1, 1985 agreement the Company had fulfilled its duty to bargain with the Union and lawfully instituted terms and conditions of employ- ment." As found, the Company was required by Section 8(d)(4) to continue in effect "all the terms and condi- tions" of the 1985-1988 agreement until 30 days after it has given the 8(d)(3) 30-day notices, which were not given. I therefore find that the wage reduction and the other five changes in the terms and conditions of the agreement were made unlawfully and that the Company refused to bargain in violation of Section 8(a)(5). Its eco- nomic difficulties are no defense. I also find that even if the Company were not required by Section 8(d)(4) to continue "in full force and effect ... all the terms and conditions" of the 1985-1988 agreement, it unlawfully refused to bargain in violation of Section 8(a)(5) by making most of the changes. Ex- cluding the reduction in wage rates (the "only" purpose of the 1986 wage reopener), the Company made the changes without affording the Union an opportunity to bargain. It therefore made unlawful changes in condi- tions of employment when it unilaterally instituted a new grievance procedure, allowed promoted supervisors to perform bargaining unit work, discontinued making the pension benefit contributions, and ignored the seniority rules when laying off employees. (The checking off of dues, on the other hand , was not a condition of employ- ment. Bethlehem Steel Co., 136 NLRB 1500, 1501 (1962).) As ruled in NLRB v. Katz, 369 U.S. 736, 747 (1962), "Unilateral action by an employer without prior discus- sion with the union does amount to a refusal to negotiate about the affected conditions of employment . . . and must of necessity obstruct bargaining, contrary to the congressional policy." D. Failing to Follow Contractual Layoff Requirements 1. Seniority provisions ignored In April the Company laid off a total of 46 of its 128 bargaining unit employees : 24 on 14 April, 1 on 15 April, 1 on 18 April, and 20 on 25 April (G.C. Exh. 27). The General Counsel contends that the Company wrongfully laid off 26 of these 46 employees because, as senior quali- fied employees, they should have been retained under ar- ticle 14.1 of the agreement (G.C. Exhs. lE and 1 at 12). The layoff provision, article 14. 1, required that Any layoff shall be on the basis of seniority on a plantwide basis, provided the senior employees re- 475 tained for work are qualified to perform the work. No employee will be placed on layoff when there is work available in the same or a lower pay level which the employee is as qualified to perform and which an employee with less seniority is perform- ing. . . . [Emphasis added.] Thus the layoff provision requires that employees must be retained on the basis of plant seniority if they are "qualified" to perform the available work , and that they must not be laid off if they are "as qualified" as junior employees performing available work in the same or lower pay level. The Company admits, however, that when it started making a list on 5 April of employees to be laid off, it did not consider itself bound by any contractual con- straints in selecting the employees (Tr. 1470). It took this position when the Union first presented grievances on 15 April. Employees complained in the grievances that they should not have been laid off because they were qualified to perform work in their classifications and "also quali- fied to perform work in other classifications with less senior employees" (G.C. Exh. 13). On the morning of 15 April when Union Representa- tive Spatz handed Vice President Ledermann the griev- ances and sought explanations for the layoff of these senior employees, Ledermann stated "it was the compa- ny's prerogative who to lay off' and that seniority "had no application" because the contract had been terminated (Tr. 127, 1463). (Ledermann refused to accept the griev- ances, except as complaints (Tr. 125), and later refused (Tr. 232) to arbitrate the layoff grievances.) When Em- ployee Services Manager Koehler joined the discussion that afternoon, he informed Spatz that "the decision who to retain was based on which person was most capable" (Tr. 129). Again on 6 June Vice President Ledermann confirmed the Company's belief tht it was not required to honor the employees' seniority. He stated in a letter to Spatz (G.C. Exh. 16) that A review of those grievance forms indicates rather clearly that they suggest the Company did not follow Article 14.1 of [the 1985-1988 agree- ment]. As you know, Don, the Company's view and position is that Agreement was terminated in total effective April 1, 1986. It follows, naturally, that the Company's view is that all provisions of that Agreement including Article 14. 1 were of no force and effect after April 1, 1986. 2. Opposing contentions The Company asserts in its brief (Br. 27) "that al- though it did not consider itself bound by the agreement because [the agreement] was terminated, the results ob- tained from the layoffs were consistent with" article 14.1. Thus it contends that it complied with the contrac- tual requirement that employees must be retained on the basis of their plant seniority if they are "qualified" to perform the available work, or if they are "as qualified" to perform the available work of junior employees in other classifications. 476 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD The word "qualified" is not defined in the 1985-1988 agreement . The General Counsel contends that it means "sufficient ability to perform the job" and that "the senior qualified employee will be entitled to preference even though the junior employee possesses greater skill and ability." The Company contends that qualification should be in- terpreted to mean "versatility, flexibility, efficiency, pro- ficiency, and skill" and that the laid-off employees were not "qualified to perform the work then available." President Christopher gave the following explanation why higher employee qualifications are necessary for the Company to reverse its heavy losses in recent years and to become more competitive (Tr. 1280-1281): My marketing committee and I developed a plan in the first three months of 1986 that was directed toward heavy bridges . . . complex welding projects . . . the types of projectrs that other people didn't want . . . because they were compli- cated, high man hour, quality production type projects. We realized that we could not be competi- tive on shopping centers, simple beam and column jobs. As long as we couldn't do the bread and butter type fabrication anymore, because we weren't com- petitive, those people who worked for us who were only capable of doing the bread and butter type work were just not going to be able to carry their share of the load. Christopher further explained the Company's evalua- tion system, which is devised to pay employees up to 10 percent more than the negotiated base wage rates for su- perior performance and to encourage the employees to advance to higher levels by enhancing their capabilities. He expressed his feeling that "if all our welders were number 1 welders, we would probably be able to weld better than anybody else that we were dealing against, and that was what was going to be the advantage for the company, by having people in higher paid category." (Tr. 1287.) Under this evaluation system the employees are presently being paid between 7 and 8 percent above the base wage rates (Tr. 1291). The employees' average rating is therefore between 107 and 108, entitling them to be paid 107 and 108 percent of the base rates. I agree with the General Counsel that the contractual requirement that senior employees be retained if "quali- fied to perform the work" does not require the senior employee to be the best qualified . That is not what the parties to the agreement negotiated. I agree with the Company, however, that the senior employee must be "qualified to perform the work then available ." I also find that for a senior employee to be entitled to bump into another classification, he must be "as qualified" as the junior employee to perform the available work there. Fortunately it is not necessary to rely solely on the conflicting testimony to determine the qualifications of the 25 senior employees who the General Counsel con- tends were improperly laid off. I find that the evaluation system, on which the premium wages are based , contains persuasive evidence of the Company's own appraisal of the employees' qualifications. I find that only 7 of the 26 senior employees were im- properly laid off. 3. Rulings on alleged improper layoffs Welder-Fitters The following list contains names of laid-off welder- fitters (classes I and 2) and junior welder-fitters who were retained. It also shows the dates of layoff, the latest evaluations (if in evidence), and the seniority dates. WF-1 Melvin Riley Apr. 14 103 9/9/74 WF-1 Alfred Cox Apr. 14 101 2/14/77 WF-1 Michael Maddox Apr. 25 8/18/80 WF-l Jonathan Meyer 109 8/18/80 WF-1 Delmar Brown 108 1/12/81 WF-l James Kahre 109 2/9/81 WF-1 Michael McConnell Apr. 25 104 5/11/81 WF-1 Robert Brown Jr. Apr. 14 106 9/8/81 WF-1 Phillip Newman Apr. 14 11/22/82 WF-l Daniel Schumacker 106 5/13/85 WF-I Christopher Lacour 103 6/17/85 WF-1 Tom Thomas 106 8/19/85 WF-2 Michael Donohue Apr. 14 98 10/27/81 WF-2 Cliff Gardner Apr. 25 107 9/7/83 WF-2 Theodore Phillips 11/14/83 WF-2 Patrick Bauer Apr. 14 102 7/15/85 WF-2 Edward Randall 107 9/23/85 WF-2 Maurice Gray 105 1/2/86 Melvin Riley. He had a low evaluation of 103 (G.C. Exh. 26V). On a scale of minus 5 to plus 10, he was rated zero on quality and 2 on quantity and job knowl- edge. Supervisor Eddie Winkle (who appeared to be an honest witness) credibly testified (Tr. 592) that he "was very limited [in] what I could use him on . . . if you got him into more complicated things, he was out of his ele- ment and could not perform." I find that the General Counsel has failed to prove that WF-1 Riley was quali- fied to perform the available work. Alfred Cox. He had a lower evaluation of 101. He was rated 6 for job knowledge, but only 3 on quality and minus 2 on quantity. (G.C. Exh. 26J.) Supervisor Winkle credibly testified that Cox was weak in interpreting blue- prints, and "Al was very limited in what areas we could use him. He had arthritis in his hands," causing him problems in holding a welding stinger. He had trouble climbing on truses, and he could not work in the colder buildings in severe weather (Tr. 518-520, 595-596.) I find that the General Counsel has failed to prove that WF-1 Cox was qualified to perform the available work. Michael Maddox. On 24 April he made a written re- quest (R. Exh . 13) for a "volunteer layoff to help work load and conditions" at the Company . Complying with his request, the Company laid him off along with others on 25 April (Tr. 269). There is no basis for finding WF-1 Maddox's layoff to be improper. GEO. C. CHRISTOPHER & SON Michael McConnell. He had recently been promoted from WF-2 to WF- 1. His first evaluation of 104 in that higher level (G.C. Exh. 26S) gave him a low rating of 2 on both quality and job knowledge . In the absence of other evidence I find that the General Counsel has failed to prove that WF-1 McConnell was qualified to perform the available work. Robert Brown Jr. He had a 106 evaluation and rating of 7 and 8 on quality and job knowledge (G.C. Exh. 251). He was a highly versatile welder-fitter, doing many types of jobs including the fabrication of bridges in the South Shop (Tr. 1126, 1129). He did much full-penetra- tion welding, having earned four welding certificates- two of them state certificates required for doing bridge work. These welding certificates were more than any other welder-fitter had earned with only 5 years of se- niority. (Tr. 1117-1119.) None of the supervisors testified about Brown's work except Supervisor Winkle, who had little familiarity with his accomplishments. Winkle was not familiar with Brown's welding certificates or his work on bridges in the South Shop. Winkle admitted: "I always had a lot of faith in his ability," but testified that he "did not perform as we expected" on certain truss work. (Tr. 529-531, 592.) I find that the General Counsel has proved that WF-1 Brown was fully qualified to perform the available work. Phillip Newman. One supervisor gave him a low 3 rating on quantity and quality . Another supervisor rated him 5 on both quantity and quality. In the absence of any testimony about his qualifications I find that the General Counsel has failed to prove that WF-1 Newman was qualified to perform the available work. Michael Donohue . He was demoted on 9 February from WF-1 to WF-2 (Tr. 1568). With an evaluation of 98, he was the only employee in the plant with an eval- uation below 100 (Tr. 1430). On one of the evaluation sheets, which rated him minus 3 on quantity and job knowledge, the comments are: "I can't tell if he really knows his job or just doesn 't care!" and I don't know how he ever got to be a fitter." (G.C. Exh. 25P.) The General Counsel has failed to show that WF-2 Donohue was qualified as a welder-fitter to perform available work or that he was as qualified as a junior employee working in another classification. Cliff Gardner. In his evaluation of 107 he is given the high rating of 8 on both quantity and quality of work, and the very high rating of 9 on job knowledge , with the notation that this is "E" (exceptional), indicating tht he "Executes all jobs without question on procedure or technique. Advises others." (G.C. Exh. 25V.) The eval- uation recommends that he "should be moved to Fitter Welder #1." Supervisor Winkle did not participate in this 6-month evaluation in January because of unfamiliarity with Gardner's work. (Leadman Mark Throckmorton, who made the evaluation-on which Gardner's premium pay is based-was not called to testify about Gardner's ac- complishments that warranted the high ratings .) Gardner was performing simple welder-fitter tasks during the shortage of work before his layoff. Although Winkle found certain faults with his performance (Tr. 520-522, 477 595), I find that the Company's own evaluation system demonstrates that WF-2 Gardner was qualified to per- form available work in his classification. Patrick Bauer. He had a low evaluation of 102 and was rated (on the scale of minus 5 to plus 10) 1 on quality and 2 on quantity and job knowledge. Supervisor Winkle noted on the evaluation that he was "learning but has a way to go." (G.C. Exh. 26B.) I find that the General Counsel has failed to prove that WF-2 Bauer was quali- fied to perform the available work or that he was as qualified as a junior employee working in another classi- fication. Welders This list contains names of laid-off welders (classes Al, 1, and 2) and junior welders who were retained . It also shows the dates of layoff, the latest evaluations (if in evi- dence), and the seniority dates. W- Al Max Sward Apr. 25 106 1/19/59 W- Al Luis Campos 108 3/20/62 W- Al Baudelio Marquez 110 2/27/63 W- Al Willie Douglas Apr. 25 106 5/13/66 W- Al Leo Hood 110 1/15/75 W- Al Charles Crump 109 10/27/75 W- Al Alfred Gallard 108 5/1/79 W-1 Gary Burnett Apr. 25 105 4/9/73 W-1 Jim Begaye Apr. 25 107 10/15/74 W-1 Nathaniel Billingsley 2/7/79 W-1 Curtis Langford Apr. 25 ................. 1/30/80 W-1 Mark Bircher 107 1/7/80 W-1 Gene Williams Apr. 14 105 5/5/80 W-1 Thanh Huynh 110 5/18/81 W-1 Thomas Bealby 110 11/24/82 W-1 Ora Hoogendoorn 109 1/11/83 W-1 Diego Amador 7/1/85 W-2 Arlie Hammar Apr. 14 106 8/1/79 W-2 Leon Hines 108 9/3/85 Max Sward. Although he was classified as an A-1 welder, he was performing mostly nonwelding work on the squeeze machine in the bridge shop . He was no longer able to do full-pen (full-penetration) welds, but his W-A1 rate was red-circled because "he was a senior em- ployee and a loyal employee." He was laid off when there was no longer full-time work on the squeeze ma- chine. (Tr. 256, 266.) I find that the General Counsel has failed to prove that W-A1 Sward was qualified to per- form the available work. Willie Douglas. His evaluation had dropped from 108 to 106 (G.C. Exhs. 25Q and 26K). Although he had passed the state certifications to perform bridge work as an A-1 welder, he had been transferred from the South Shop because of quality problems, which continued on simpler welding in the Center Shop (Tr. 552, 570, 883, 478 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1572). I find that the General Counsel has failed to prove that W-A 1 Douglas was qualified as a welder to perform available work or that he was as qualified as a junior em- ployee working in another classification. Gary Burnett. He had a 105 evaluation, with a low 3 rating on both quality and job knowledge (G.C. Exh. 26G). Although he was classified as a class 1 welder, Su- pervisor Winkle credibly testified that he could not be used on full-pen welds (Tr. 594). The General Counsel has failed to prove that W-1 Burnett was qualified to perform the available work. Jim Begaye. Although classified as a class I welder, he had been working primarily on the squeeze machine with W-Al Sward since 1977, performing mostly nonwelding work and no full-pen welds (Tr. 1020, 1025, 1028). He was laid off with Sward when there was no longer full- time work on the squeeze machine. I find that the Gen- eral Counsel has failed to prove that W-1 Begaye was qualified to perform the available work. Curtis Langford. The Company does not dispute that he was a fully qualified class 1 welder, performing such work as full-pen welds on state jobs (Tr. 1074, 1085). The only apparent reason for his layoff was a reprisal for his reinstatement with backpay, ordered by an arbitrator in 1985, following his discharge resulting from a person- ality clash with a supervisor (Tr. 1076, 1100, 1403-1404). I find that W-1 Langford was fully qualified to perform the available work. Gene Williams. His work had deteriorated, with his evaluation going from 108 to 105 (G.C. Exhs. 25000 and 26BB). As Supervisor Winkle credibly testified (Tr. 593); "I ... have a file on Gene and his continuing on- going problems with quality, both with full-pen welds and fillet welds. It was just an ongoing problem." I find that the General Counsel has failed to prove that W-1 Williams was qualified to perform the available work. Arlie Hammar. He had a 106 evaluation. Although he was classified as a welder, he was assigned to making and flattering parts in the parts department, doing weld- ing only occasionally. He wore heavy glasses because of nearsightedness, and the Company apparently had re- moved him from welding work in the belief that his poor vision interfered with his welding. (Tr. 974-975, 1003- 1011.) I find that the General Counsel has failed to prove that W-2 Hammar was qualified to perform the available work. Machine Operators This list contains names of laid-off operators (classes I and 2) in Machine Group I and II, as well as junior oper- ators who were retained. It also shows the dates of layoff, the latest evaluations (if in evidence), and the se- niority dates. MI-I Bradley Lupto Apr. 14 3/14/77 MI-1 Juan Romero Apr. 14 108 1/23/78 MI-1 Eddie Blanchard Apr. 25 10/23/78 M1-1 Randy Berntsen 6/18/79 MI-I Albert Cagle 6/18/79 M1-1 Naseem Joseph 7/2/79 Ml-1 Jeff Wellner 7/23/79 MI-1 Barry Brown 7/30/79 MI-1 John Eisenhour 9/17/79 MI-1 Barney Tucker 108 1/28/80 MI-1 Richard Fagan 106 2/20/80 MI-1 Robert Garrett Apr. 14 108 3/24/80 MI-1 Richard Murray 6/1/81 MI-1 Vernon Woodruff 110 8/8/83 M1-2 Terry Hendrickson 1/20/86 M2-1 Katheryne Bryant Apr. 14 108 3/13/74 M2-1 Mike Rausch 11/22/83 Bradley Lupton. Since 1977 he worked at various lesser skilled machine and utility jobs the plant, until he was promoted to welder-fitter 2d class. There, in his words, "I kind of felt like I was a little bit above my head" (Tr. 806). He was returned to the Saw Department, where he was demoted to M1-1 (G.C. Exh. 2511). At the time of his layoff he was working as a helper in the Rebar plant. I find that the General Counsel has failed to prove that MI-1 Lupton was qualified to perform the available work. Juan Romero. He worked as an M1-1 machine opera- tor in the Saw Department, where Supervisor Roger Cordoba estimated that it would take "five to ten min- utes" of instruction to operate the bandsaw and "I would say 15 minutes to 20, to a half hour" to operate the cold saw (Tr. 666-667). Cordola admitted (Tr. 643-644) that an M1-1 operator "would be qualified or possess the necessary skills" to operate a handsaw, a cold saw, and an Anglematic machine, and that an M1-2 operator should also be able to operate the Anglematic if "they have the necessary skills." It is undisputed that Supervisor Cordoba promised to train Romero to operate all the machines in the Saw De- partment and that Romero was eager to learn, but Cor- doba kept him busy operating the Do-All bandsaw and continually postponed the training. Romero did operate the cold saw 4 hours on Saturday, when shown by the leadman how to run it. During the last 30 days before Romero's layoff, Coroba apologized for not giving him the training on the Anglematic, drill line, and other ma- chines in the Saw Department. Cordoba told him, "I need you" on the bandsaw because bars were being bev- eled on the Great Bend project and Romero was "the only one that knew how to set up for that." (Tr. 833- 834.) Supervisor Cordoba admitted that Romero was a "hard worker" (Tr. 666). He gave Romero a high rating of 8 on both quantity of work and job knowledge, a rating of 6 on quality, and a good overall evaluation of 108 (G.C. Exh. 26U). (I note that Vice President Leder- mann testified (Tr. 1436-1437) that Romero's earlier 107 evaluation was "above average" for a band saw opera- tor.) Cordoba admitted (Tr. 621) that he promised to put Romero through a training course on the computerized equipment, plus the cold saw, in the Saw Department. Despite Romero's hard work and good evaluation, the Company laid him off on April 14 and retained less senior MI-1 machine operators. These included Richard Fagan, who had a lower 106 evaluation (G.C. Exh. 26M), who then was "running the band saw or helping GEO. C. CHRISTOPHER & SON move material," and who was later trained to operate the cold saw, Anglematic, and drill line (Tr. 637)-instead of Romero. I discredit Cordoba's claim that "I got a couple of weeks on the cold saw for [Romero] and he just wasn't up to par for that skill" (Tr. 621) and his claim "that's just my opinion" that Romero "didn't have quite enough talent to put him on equipment like the drill or the Anglematic" (Tr. 666). There was ample work on the handsaw and cold saw after the layoff to keep Romero busy. Cordoba grudging- ly acknowledged (Tr. 658) that "I assume under close su- pervision, yes, [Romero] probably could do [cold saw work]." Cordoba admitted that after the layoff the cold saw was running about 90 percent of the time, one of the bandsaws was running about 50 percent of the time, and the other "possibly" 80 percent of the time . (Tr. 645- 646.) Both the General Counsel and the Union suggested at the trial (Tr. 1139) that the Company's knowledge of Romero's upcoming surgery (scheduled the next week, at the Company's expense) "may have been a factor in their decision to lay Mr. Romero off." The Company in its brief (Br. 32-33) acknowledges that Romero had surgery scheduled for 17 April, but contends that "Juan Romero was laid off because the type of work for which he was qualified to perform simply dwindled to nothing. He wasn't qualified to perform any other tasks in the compa- ny's opinion. The unrebutted evidence would indicate that Romero was not laid off to avoid Romero's medical expenses." (Senior Vice President James Liddell testified (Tr. 1524-1525) that he did not remember any discussion about Romero's going into the hospital before the deci- sion was made to lay him off.) After weighing all the evidence I find that whether the Company's decision for the layoff was motivated by the expense of M1-1 Romero's surgery, the General Counsel has proved that Romero was qualified to per- form the available work and was improperly laid off in violation of his seniority rights under the contractual layoff provision. Eddie Blanchard. On his January 106 evaluation Super- visor Robert Ketz rated him 6 on quantity , quality, and job knowledge as well as on dependability and comment- ed: "Eddie is getting better on the shears, could improve on quantity also on dependability" (G.C. Exh. 25G). On his April evaluation Ketz gave him the same 6 rating on quantity and dependability and a 7 rating on quality and job knowledge, but Crew Chief Roger Lyon rated him 3 on dependability, 4 on quality, 5 on quantity, and 6 on job knowledge. These were his evaluations as operator of only one of the shear machines (Tr. 917). Blanchard was a utility employee from 1978 until about 1984, when he began working in Ketz' department mostly as a forklift driver (Tr. 918-919, 1556). There, when operating the one shear machine in 1985, he worked mostly on noncritical template work, not on more accurate regular production work (Tr. 1550). Be- cause of MI-1 Blanchard's limited ability, I find that the General Counsel has failed to prove that he was qualified to perform the available work. Robert Garrett. He is an able, very versatile employee. On his 108 evaluation he had the high ratings of 8 for 479 quantity and quality and the very high rating of 9 for job knowledge. His principal job was operating the CNC (computer numerically controlled) drill line (Tr. 1146-1147). He also operated the Airco CNC cutting machine (on which he was trained at the factory before instructing two op- erators in its use), the CNC Anglematic machine and other machines in the Saw Department , the various shears in the Shears Department, and the vertical mill in the South (bridge) Shop (Tr. 1150-1152, 1161, 1163). He has served as leadman in both the warehouse and the Shears Department (Tr. 1168). The only apparent reason for the Company's laying off this talented employee was his 1984 back injury. He credibly testified, however, that his back surgery was successful and he had no physical limitations after his re- covery (Tr. 1169). I find that M1-1 Garrett was fully qualified to perform the available work. Katheryne Bryant. She had a 108 evaluation as operator of the bolt threader machine, on which she had worked about 11 years (G.C. Exh. 26F; Tr. 904). When that work fell off the Company was unable to find other reg- ular work for which she was qualified (Tr. 273, 907-910, 1432-1433, 1451). I find that the General Counsel has failed to prove that M2-1 Bryant was qualified to per- form the available work. Other Challenged Layoffs Luther Friday. He was the most senior of three ship- per-checkers. His seniority was 10/20/76, David Brew- er's was 6/25/79, and Frederick Smith's was 2/23/81. It is undisputed that when Smith was promoted to leadman, Friday protested and charged racial discrimina- tion. He then said, "Well, go ahead and lay me off." The Company complied and laid him off with others on 25 April. Friday did not testify, and there is no contention that he was improperly laid off instead of the junior employ- ee Brewer. His greater seniority did not entitle him to a promotion under the contractual layoff provision. I therefore find no basis for ruling that shipper -checker Friday's layoff was improper. Lonnie Kemp. He was a machinist in labor grade 2, the second highest labor grade in the plant. He was three levels higher than the M1-1 machine operators, who were in labor grade 5. (G.C. Exh. lE, Exh. 1 at 35.) In his 15 years of service he was first a laborer and M 1-2 machine operator, a M1-1 machine operator in 1974, and a machinist in 1978. Since then he has been the only ma- chinist performing highly skilled machine work in the machine shop, which is located in the South (bridge) Shop. (Tr. 1051-1055, 1058-1062, 1071 .) In this skilled work he had a 108 evaluation, with a high 8 rating on quantity, quality, and job knowledge (G.C. Exh . 25FF). Taking the position that the contractual layoff provi- sions were no longer in effect, the Company ignored his seniority and laid him off on 25 April without offering him continued employment on any of the lesser skilled machine operator jobs. In the Company's 14 July re- sponse to his and others' claim for bumping rights (G.C. Exh. 19), it asserted that "Other categories did not fit 480 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD (Kemp's] talents with the possible exception of Machine 1-1 and that in the area of the radial drill or mill" (work performed by two other senior employees). The Compa- ny ignored the remaining machine operator jobs, includ- ing those on which he had previously worked: As a highly skilled operator, he undoubtedly was as qualified as many of the junior employees who were still em- ployed on the lower skilled machine operator jobs. Because of machinist Kemp's good evaluation in the high-skilled machine shop work, I find (1) that the Gen- eral Counsel has proved that he was as qualified as vari- ous junior employees performing available work in lower pay levels and (2) that Kemp should have been retained to perform the remaining machinist and other available work. Richard Martin. Two of the three remaining utility em- ployees were U-1 Richard Martin (with a seniority date of 2/2/76) and U-1 Henry Cordoba (with a seniority date of 4/18/79). Martin had a 108 evaluation, with a high 8 rating on quantity, a very high 9 rating on qual- ity, and a 5 rating on job knowledge (G.C. Exh. 25LL). Supervisor Roger Cordoba gave Henry Cordoba a high 8 rating on quantity and quality and a 7 rating on job knowledge. Despite the comparable evaluations, the Company laid off Martin on 25 April and retained Henry Cordoba, who had 3 years less seniority. The Company's only stated reason for laying off the more senior utility employee was that U-1 Martin was primarily operating a roll machine (Tr. 288) whereas U- 1 Cordoba "was operating one of the saws," that Martin "had not operated that saw," and "That was what we needed at that particular moment in time" (Tr. 295). As discussed above, Supervisor Roger Cordoba estimated that it would take only a few minutes to instruct an em- ployee how to operate the saw. At the time, Martin was also helping on the shears and Henry Cordoba was also working in the bull gang (Tr. 1045-1047). I find that the stated reasons for not honoring U-1 Martin's greater seniority was merely a pretext and that Martin, with 10 years of service as a utility employee, was qualified to perform the available work. Francisco Santiago. He was admittedly an excellent worker, although he was unable to read English and spec sheets. Both he and the other 2d class painter were laid off, leaving only the 1st class painters. There is no basis for finding P-2 Santiago's layoff to be improper. Bradley Steven. He was classified as a crane operator 2d class, but he had not been trained to operate the over- head crane (Tr. 1033-1034). Apparently because of his exceptional 110 evaluaton (G.C. Exh. 26Y) he was re- classified from a utility employee to enable him to become an all-around crane operator. He was working primarily as a forklift operator and was laid off when there was insufficient work to keep him busy. The junior CO-2 J. K. Hawkins, who was retained, did operate the overhead crane. (Tr. 285-286, 1434.) I find that the Gen- eral Counsel has failed to prove that CO-2 Stevens was qualified to perform the available work. In summary, the Company in April laid off a total of 46 employees. Although the General Counsel contends that the Company's failure to honor the contractual se- niority provisions resulted in the improper layoff of 26 of them, I find that only 7 of the employees were laid off in violation of their seniority rights under article 14.1 of the 1985-1988 agreement. They were Robert Brown Jr., Cliff Gardner, Robert Garrett, Lonnie Kemp, Curtis Langford, Richard Martin, and Juan Romero. CONCLUSIONS OF LAW 1. By failing to continue in effect all the terms and conditions of the 1985-1988 collective-bargaining agree- ment until 30 days after it has given the 8(d)(3) notice of a dispute to the Federal Mediation and Conciliation Service and the Kansas Department of Human Re- sources, the Company has engaged in unfair labor prac- tices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. 2. By making unilateral changes in the conditions of employment without affording the Union an opportunity to bargain, the Company violated Section 8(a)(5) and (1). 3. By (a) reducing wages 14 percent on 14 April and also in April (b) changing the grievance procedure, (c) promoting leadmen to crew chiefs and permitting them to perform bargaining unit work, (d) ceasing the check- off of union dues, (e) stopping the making of pension benefit contributions, and (f) failing to follow the con- tractual layoff requirements, the Company violated Sec- tion 8(a)(5) and (1). 4. By laying off Robert Brown Jr., Robert Garrett, and Juan Romero on 14 April and Cliff Gardner, Lonnie Kemp, Curtis Langford, and Richard Martin on 25 April in violation of their seniority rights under article 14.1 of the agreement, the Company violated Section 8(a)(5) and (1). 5. The Company did not tell an employee that the Union no longer represented the employees in the bar- gaining unit. REMEDY Having found that the Respondent has engaged in cer- tain unfair labor practices, I find that it must be ordered to cease and desist and to take certain affirmative action designed to effectuate the policies of the Act, including the restoration of all the terms and conditions of the 1985-1988 collective-bargaining agreement until 30 days after it has given the 8(d)(3) notice to the Federal Media- tion and Conciliation Service and the Kansas Depart- ment of Human Resources. The Respondent must make the employees whole for the loss of earnings and other rights and benefits suffered as a result of its reduction of wages and other changes in the terms and conditions of the agreement while failing to comply with Section 8(d)(3), as well as make the Union whole for any loss of dues suffered as a result of the cancellation of the dues checkoff, Ogle Protection Service, 183 NLRB 682, 683 (1970), enfd. 444 F.2d 502 (6th Cir. 1971), plus interest as computed in New Hori- zons for the Retarded, 283 NLRB 1173 (1987). The Respondent, having unlawfully laid off seven em- ployees, it must offer them reinstatement and make them whole for any loss of earnings and other benefits, com- puted on a quarterly basis from date of layoff to date of proper offer of reinstatement, less any net interim earn- GEO. C. CHRISTOPHER & SON ings, as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest. The Respondent must transmit to the pension fund the contributions it has failed to make while not in compli- ance with Section 8(d)(3). Because the provisions of em- ployee benefit fund agreements are variable and complex, the Board does not provide at this adjudicatory stage for the addition of interest at a fixed rate on unlawfully withheld fund payments. Any additional amount owed the pension fund shall be determined as in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- eds ORDER The Respondent, Geo. C. Christopher & Sons, Inc., Wichita, Kansas, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Terminating or modifying a collective-bargaining agreement with Boilermakers Local Lodge 286 until 30 days after it has given the 8(d)(3) notice of a dispute to the Federal Mediation and Conciliation Service and the Kansas Department of Human Resources. (b) Making unilateral changes in the conditions of em- ployment without affording the Union an opportunity to bargain. (c) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) Restore all the terms and conditions of the 1985- 1988 agreement until the notice requirements of Section 8(d)(3) have been complied with. (b) Make the employees whole for the loss of earnings and other rights and benefits suffered as a result of its re- duction of wages and other changes in the terms and conditions of the agreement while failing to comply with Section 8(d)(3) of the Act. (c) Make the Union whole for any loss of dues suf- fered as a result of the cancellation of the dues checkoff. (d) Offer Robert Brown Jr., Cliff Gardner, Robert Garrett, Lonnie Kemp; Curtis Langford, Richard Martin, and Juan Romero immediate and full reinstatement to their former jobs or, if those jobs no longer exist, to sub- stantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously en- joyed, and make them whole for any loss of earnings and other benefits suffered as a result of their unlawful layoff, in the manner set forth in the remedy section of the deci- sion. (e) Remove from its files any reference to the unlawful layoffs and notify the employees in writing that this has been done and that the layoffs will not be used against them in any way. If no exceptions 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 purposes. 481 (f) On request, bargain with the Union as the exclusive representative of the employees in the following appro- priate unit concerning terms and conditions of employ- ment and, if an understanding is reached , embody the un- derstanding in a signed agreement: All full-time and regular part-time production and maintenance employees employed by Geo. C. Christopher & Son, Inc. at its facility located in Wichita, Kansas, excluding all office clerical em- ployees, professional employees, guards, and super- visors as defined in the Act. (g) 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. (h) Post at its facilities in Wichita, Kansas, copies of the attached notice marked "Appendix."4 Copies of the notice, on forms provided by the Regional Director for Region 17, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered , defaced, or covered by any other material. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. IT IS FURTHER RECOMMENDED that the complaint is dismissed insofar as it alleges violations of the Act not specifically found. 4 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 terminate or modify an agreement with Boilermakers Local Lodge 286 until 30 days after giving the required 8(d)(3) notice of a dispute to the Federal and State Mediation Services. WE WILL NOT make changes in your conditions of em- ployment without giving the Union an opportunity to bargain. 482 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL restore all the terms and conditions of the 1985-1988 agreement until we have complied with the 30-day notice requirement. WE WILL make you whole for the loss of earnings and other rights and benefits resulting from the wage reduc- tion and other changes in the agreement , plus interest. WE WILL offer Robert Brown Jr., Cliff Gardner, Robert Garrett, Lonnie Kemp, Curtis Langford, Richard Martin, and Juan Romero immediate and full reinstate- ment to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without preju- dice to their seniority or any other rights or privileges previously enjoyed and WE WILL make them whole for any loss of earnings and other benefits resulting from their layoff, less any net interim earnings, plus interest. WE WILL notify each of them that we have removed from our files any reference to his layoff and that the layoff will not be used against him in any way. WE WILL, on request , bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employee in the bar- gaining unit: All full-time and regular part-time production and maintenance employees employed by Geo. C. Christopher & Son, Inc. at its facility located in Wichita, Kansas, excluding all office clerical em- ployees, professional employees, guards, and super- visors as defined in the Act. GEO. C. CHRISTOPHER & SON, INC.