Hydrologics, Inc.

1060 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Hydrologics, Inc and International Brotherhood of Electrical Workers, Local Union No 1823 Case 27-CA-7327 May 17, 1989 DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS CRACRAFT AND HIGGINS On August 24, 1982, Administrative Law Judge Russell L Stevens issued the attached decision The General Counsel, the Charging Party, and the Respondent' filed exceptions and supporting briefs, the General Counsel and the Respondent filed an swering briefs, and the General Counsel filed a motion to strike a portion of the Respondent's brief 2 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,3 and conclusions only to the extent consistent with this Decision and Order We begin with a brief summary of the relevant facts The Respondent manufactures and sells elec- trical products in Denver, Colorado International Brotherhood of Electrical Workers, Local Union No 1823 is the exclusive representative of the Re spondent's production and maintenance employ- ees 4 The most recent collective-bargaining agree i The Respondent has requested oral argument This request is denied as the record the exceptions and the briefs adequately present the issues and the positions of the parties 2 The General Counsel moved to strike that portion of the Respond ent s reply brief which disparaged the General Counsel s characterization of Hearst Corp 161 NLRB 1405 (1966) We deny the motion to strike as an inappropriate means of taking issue with opposing counsel s character ization of an argument In any event the Board draws its own conclu lions as to the significance of any cited case 3 The Respondent has excepted to some of the judge s credibility find rags 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 The judge found that the Respondent violated Sec 8 (a)(5) and (1) by failing to remit to the Union dues deducted from employee paychecks from April 1 to May 13 1981 We agree However we do not adopt sec III C and Conclusion of Law 5 of the judge s decision Although the Re spondent clearly had a general obligation to recognize and bargain with the Union in view of our finding below the Respondent was not re quired to bargain over existing contract terms except those covered by the wage reopener clause 4 The bargaining unit is All production and maintenance employees employed by the Re spondent at its Denver Colorado plant but excluding office clerical employees and all guards professional employees and supervisors as defined in the Act ment between the Respondent and the Union cov ered the period of May 1, 1980, to May 1, 1982, and contained grievance/arbitration,5 no-strike 6 and wage reopener provisions 7 According to Dennis Thuis, the Union's business manager, whose testimony was credited by the judge, the Respond- ent and the Union never discussed, nor negotiated about, whether the no strike or the arbitration pro- visions applied to the wage reopener clause By letter dated February 23, 1981,8 the Union requested wage negotiations pursuant to the wage reopener provision of the contract The parties ne gotiations commenced on March 26 On March 31, the Union filed the appropriate notice required by Section 8(d)(3) of the Act On May 8 the Respond ent stood firm on its final proposal calling for an approximate 5-percent wage increase This propos- al was subsequently rejected by the Union, and the employees went out on strike on May I 1 until May 21 By its telegrams to the Union dated May 13 and 20, which are set forth in the judge's decision, the Respondent clearly stated that, in view of the strike which it considered to be a breach of the contractual no strike provision, it had rescinded the entire contract Shortly thereafter, the Respondent stopped enforcing the union-security clause and no longer withheld and transmitted to the Union dues from employee paychecks as required by the checkoff provision The last month for the Union to receive dues from the Respondent was March On May 20 the Union notified the Respondent that the day before the employees had voted to accept the Respondents May 8 wage proposal and to return to work The next day the strikers re turned to the plant and renewed their uncondition- 6 Arts 6 and 7 of the contract detail a three step grievance procedure with final and binding arbitration as the last step Neither article refers to the no strike clause of the contract or to the wage reopener provision 8 Art 4 sec 2 of the contract provides During the life of this Agreement the Union agrees that there shall be no strike slowdown or stay in work stoppage or any other strike and the Company agrees that there shall be no lockout of employees It is understood and agreed that this Article shall not apply in the event of the Company s failure to apply an arbitration award Art 21 of the contract provides in pertinent part TERM OF AGREEMENT This Agreement shall be effective from the first (1st) day of May 1980 and shall remain in full force and effect until the first (1st) day of May 1982 and shall be automatically renewed from year to year thereafter unless terminated changed or opended [sic] for wages pursuant to the following conditions (1) If either party elects to terminate (2) If either party elects to change any provision of the Agreement (3) Notwithstanding the above either party may open the Agree ment for changes in the Hourly Rates of Pay only by giving written notice to the other party of such intention no less than sixty (60) days nor more that seventy five (75) days prior to May 1 1981 Any changes in such hourly rates of pay shall not be effective prior to May 1 1981 8 All dates are in 1981 unless otherwise indicated 293 NLRB No 129 HYDROLOGICS INC 1061 al offer to return to work The strikers were not recalled to work that day Between May 28 and July 1 the Respondent recalled six strikers-Mi- chael Brueggeman (May 28),9 Robin Burbank (May 29), Timothy Ozbun (June 3), Keith Motzner (June 8), Deborah Lewis (June 8), and Rockie Thielman (July 1)-and on May 29 extended recall offers to strikers Everett Champion, Rodney La- curen, and Gary M Stephenson, but they did not return to work 10 As of the hearing date, the Re spondent had not extended a recall offer to strikers Betty Norman and Candace Vanderwater After the strike began, the Respondent hired the following striker replacements on May 12, Mitzi Byler, John S Martin, and Greg Stephens, on May 13 and 18, respectively, Mikel Louisone and Mi- chael Gray, on May 19, Tracy Barlow, Wm S Degenhart, and Montgomery England, and on May 20, June 17, 25, and 29, and July 2, respectively, Joseph Broughton, Tony Hanneman, Tony Uba, Patrick McCartney, and Timothy Martin Accord- ing to the testimony of Robert Greer, the Respond- ent's vice president and general manager, the Re- spondent implemented its May 8 wage offer to the Union and hired the replacements at a 5 percent in- crease over the old contractual wage rate The judge found that the May 11 strike was un protected and that the Respondent was permitted to rescind the contract on May 13 and make cer- tain unilateral changes in the contract's union-secu- rity and checkoff provisions For the reasons dis- cussed below, we reverse the judge and find that the Respondent violated Section 8(a)(5) and (1) of the Act as alleged in the amended complaint Although he found that the sympathy strike cases involving no strike clauses are distinguishable from the instant one the judge applied the analysis used in those cases," and found that the broadly worded no strike clause here covered the reopener strike in the absence of any extrinsic evidence that would explain, modify, or negate the language of 9 The judge found and we agree that Brueggeman was a supervisor within the meaning of the Act at all times after his recall to work on May 28 to The record reflects that Champion declined the offer that the mail offer to Lacuren was returned and that there was no response to the offer to Stephenson I I Subsequent to the judge s decision the Board in Indianapolis Power Co 291 NLRB 1039 (1988) found that a broad no strike clause encom passes sympathy strikes unless the contract as a whole or extrinsic evi dence demonstrates that the parties intended otherwise We do not con seder the Board s analysis used in Indianapolis Power with respect to sym pathy strikes applicable to reopener strikes In this regard we note that the setting for a reopener strike is quite different because inter aha the reopener strike is in response to unsuccessful bargaining over a contract that has terminated with respect to provisions that are covered by the reopener clause whereas a sympathy strike pertains to matters outside the contract the terms of which are fully in effect As may be self evi dent and as noted below whether the contract is in effect is a distinction of critical significance in assessing the applicability of a no strike clause the wage reopener and no-strike provisions Criti cal to the judge's finding was his initial rejection of NLRB v Lion Oil C o, 352 U S 282 (1957),12 as providing any guidance for deciding the issue pre- sented here We find that the judge's analysis in correctly minimizes the significance of the Su- preme Court's teachings in Lion Oil and, as a result, is not consistent with the policies underlying Section 8(d) of the Act We initially observe that in Lion Oil the Court held that the Act does not prohibit reopener strikes as long as the procedural requirements of Section 8(d) are met In reaching this result, the Court con sidered the purposes of the Act and observed that "[u]nions would be wary of entering" into long term collective bargaining agreements with reopen- er clauses if unions could not strike during the con- tract term even though there was no express waiver of the right to strike concerning reopened provisions Lion Oil, 352 US at 289 Equally im- portant for our purposes here is the Court's reason ing that reopener strikes must have been envisioned by Congress when it contemplated a duty to bar gain under Section 8(d) during such reopener pert ods because it would be "anomalous" to recognize such a duty, but deprive unions of the strike threat which, together with `the occasional strike itself, is the force depended upon to facilitate arriv- ing at satisfactory settlements "' Lion Oil, 352 US at 291 (footnote omitted) Most significantly, we believe that underlying the Court's reasoning in Lion Oil is, necessarily, a conclusion by the Court that the Act and its legis lative history may be read as placing reopener bar- gaining and bargaining when no contract is in effect on equal footing with respect to the avail- ability of economic weapons In fact, the Court construed the term "expiration date" in Sections 8(d)(1) and 8(d)(4) as applying both to the date set for expiration of a fixed-term contract and to the date on which a clause providing for reopening is invoked Lion Oil, 352 U S at 290 In this regard, although the Court noted that Congress through Section 8(d) imposed certain additional require ments on the parties in the reopener situation, in- cluding a 60-day waiting period before they may resort to a strike or a lockout, the Court did not intimate that these additional requirements affected the parties' use of economic weapons after the stat 12 In Lion Oil the union timely invoked a contractual provision to reopen and negotiate changes in the contract When those negotiations proved unsuccessful an employee strike began and the employer subse quently discharged the strikers The Board found that the strike was not in breach of the contract and the employer s discharge of the strikers was unlawful The Court upheld the Board s determination that the reopener strike was protected 1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD utory 60-day period had expired and instead found, as noted, that the right to strike in one situation parallels that in the other except for the few dis- tinct requirements specified in Section 8(d) Like wise, we see no basis in the policies of the Act for not permitting a strike, lockout, or implementation of proposals concerning which a good-faith im- passe has been reached after the statutory 60 day period has expired 13 Turning to the question of the intent of parties who include both reopener and broad no-strike clauses in their collective-bargaining agreements, we start with the premise that a no-strike clause generally applies only during the term of the con tract Given this premise, and the longstanding pre- cepts of Lion Oil set forth above, force of logic leads us to conclude that in the absence of lan- guage that the parties intend to include reopener strikes within their no-strike clause, parties intend to have the same economic weapons available in the reopener context as are available at the termi- nation of their contract, at least with respect to proposals encompassed within the reopening This is so because, inter alia, during a reopening, a con- tract, at least as to reopened provisions, has been effectively terminated for a certain period In this regard, we stress that absent a reopener provision, Section 8(d) does not impose on the parties a bar gaining obligation when they make or receive pro- posals seeking midterm contract modifications,14 rather it prevents the employer from implementing a midterm contract modification without the con sent of the union 15 On the other hand, an agreed- upon reopener provision represents the parties choice of flexibility over stability in terms of those contract provisions covered by the reopener It fol- lows then that the parties must intend, unless they clearly indicate to the contrary, that reopener bar- gaining contemplates the potential use of economic weapons To find otherwise would mean that a re- opener clause only entitles the parties to do what they could have done even in its absence, i e , one party can request a change and the other party can refuse to discuss or agree to the change Thus, from a practical standpoint, without the ability to 13 In Speedrack, Inc 293 NLRB 1054 (1989) the Board considered the related question of whether following an impasse in negotiations held under a wage reopener clause an employer may implement its wage pro posals Following the reasoning of Lion Oil supra and consistent with the underlying purposes of Sec 8(d) the Board found that the implemen tation was lawful where all procedural requirements of Sec 8(d) had been satisfied 14 See Connecticut Power Co 271 NLRB 766 (1984) 15 See Allied Chemical Workers Local I v Pittsburgh Plate Glass 404 US 157 159 in 2 185-187 ( 1971) citing with approval NLRB Y Scam Instrument Corp 394 F 2d 884 887 (7th Cir 1968) cert denied 393 U S 980 (1968) Oak Cliff Go/man Baking Co 207 NLRB 1063 1064 (1973) enfd mem 505 F 2d 1302 (5th Cir 1974) cent denied 423 US 826 (1975) resort to economc weapons, negotiations pursuant to a reopener provision would not differ in any ma- terial way from negotiations to modify the agree ment during its term when the contract does not include a reopener provision In focusing on the parties' ability to resort to economic weapons during reopener bargaining, we recognize that the parties could agree to limit their use of economic weapons Clearly, such an agree ment would be controlling But, we reject the notion that a broadly worded no strike clause, which does not address the reopener situation, but rather speaks in terms of what is to happen while the contract is in effect, applies to subjects on which the contract is, at least for a certain period, effectively terminated As we stated in the compan- ion case Speedrack Inc, 293 NLRB 1054, 1055- 1056 [I]n cases involving terminated contract provi sions-whether terminated through a reopener or terminated through the expiration of a con tract-we will assume, in the absence of evi dence of a contrary intent, that the parties in- tended to reserve to themselves the freedom of action that is a normal part of the collective bargaining process when contractual provi- sions governing the matters on the bargaining table are not in effect We now apply these principles to the facts in the present case The Union's written notices of Febru- ary 23 and March 31 clearly satisfied the require ments of Section 8(d), and the May 11 strike was commenced more than 60 days after notice to the Respondent as set forth in Section 8(d)(4) Thus, the Union was entitled to strike on May 11, absent a clear indication by the parties to the contrary We find no evidence of a contrary intent here The reopener provision simply indicates which contract provisions may be reopened, who may reopen them, and when and how notice of an intent to reopen is to be given Furthermore, based on the credited testimony, the Respondent and the Union never discussed nor negotiated about whether the no-strike provision applied to the wage reopener clause We note further that the one specific excep tion listed in the no strike clause excepts strikes in response to a refusal to arbitrate that tends to sug gest a linkage between the parties' broad prohibi tion against strikes and arbitrable disputes 16 Addi- tionally, the no-strike clause was placed in a con- tract article labeled "Union Company Relations" following a section that delineates the parties' 15 None of the parties contends that the wage reopener clause is sub ject to the contractual grievance and arbitration provisions HYDROLOGICS INC intent to have employee grievances settled by the contractual grievance procedure In this context, we can find nothing in the record either intrinsic or extrinsic to the contract that indicates any inten- tion by the parties to include strikes concerning re- opener provisions within the ambit of the no-strike clause Accordingly, we find that the May 11 strike was protected and that the Respondent unlawfully re- scinded and repudiated the 1980-1982 contract with the Union on May 13 Consequently, we fur- ther find the Respondent violated Section 8(a)(5) and (1) when it unilaterally changed the terms and conditions of the contract by failing to enforce the union-security clause and to withhold and transmit to the Union dues from employee paychecks on or after May 13 The amended complaint also alleged that the Union's communication of May 20 constituted a valid acceptance of the Respondent's outstanding wage offer and that the Respondent unlawfully failed and refused to execute a supplemental agree ment, which reflected that a final agreement on wage rates had been reached In view of his con clusion on the no strike issue, the judge did not specifically pass on this 8(a)(5) allegation It is well established that a contract offer re- mains on the bargaining table unless explicitly withdrawn by the offeror or unless circumstances arise that would lead the parties reasonably to be lieve that the offer had been withdrawn 17 A complete package proposal made on behalf of either party through negotiations re- mains viable, and upon acceptance in toto must be executed as part of the statutory duty to bargain in good faith, unless expressly with- drawn prior to such acceptance, or defeased by an event upon which the offer was express- ly made contingent at a time prior to accept ance [footnote omitted] Phelps Dodge Brass Co, 272 NLRB 361, 363-364 (1984), quoting Pepsi Cola Bottling Co, 251 NLRB 187, 189 (1980) We find, in agreement with the General Coun- sel's position, that a supplemental wage agreement with the Union was reached on May 20 when the Union notified the Respondent that it had accepted the May 8 proposal Accordingly, we find that the Respondent violated Section 8(a)(5) and ( 1) as al- leged In view of his conclusion on the no-strike clause issue, the judge also found that the May 11 strike was an economic strike and that the Respondent 17 See e g Belcon Inc 257 NLRB 1341 (1981) 1063 violated Section 8(a)(3) and (1) when it failed to re- instate former strikers Roche Thielman, Betty Norman, and Candace Vanderwater The judge found that the seniority provisions of the 1980- 1982 contract survived the Respondent's rescission of the contract and that the Respondent's failure to recall these three employees by seniority violated Section 8(a)(3) and (1) The General Counsel ex- cepts and contends that what began as an economic strike on May 11 was converted by the Respond- ent's unfair labor practices to an unfair labor prac- tice strike on May 13, the date of the Respondent's first telegram We find meet in the General Counsel's excep- tion Here, the Respondent's May 13 telegram ad- vised the Union that, because of the strike, "condi- tions of employment" other than those covered by the reopener would have to be negotiated "before a settlement may be resolved " Through this unlawful rescission and repudiation of the entire 1980 collective-bargaining agreement, the Respond- ent unlawfully broadened the areas of dispute and thus impeded any possibility of an early settlement of the parties' differences Accordingly, we find that the strike was converted to an unfair labor practice strike on May 13 See, e g, NLRB v Blu Fountain Manor, 785 F 2d 195, 203-204 (7th Cir 1986), NLRB v Charles D Bonnano Linen Services, 782 F 2d 7, 10 (1st Cir 1986), cf C-Line Express, 292 NLRB 638 (1989) The strikers, therefore, were entitled, on their unconditional offer to return to work on May 20, to immediate reinstatement unless they had been permanently replaced prior to the conversion of the strike on May 13 It is well established that if there are insufficient positions for all the unfair labor practice strikers, the available positions shall be distributed among them in accordance with their seniority or by any other nondiscriminatory standard See Charles D Bonanno Linen Service, 268 NLRB 552 (1984), enfd 782 F 2d 7 (1st Cir 1986) As previously noted, however, the Respond ent did not reinstate any of the strikers until May 28 nor discharge any of the replacements hired on or after May 13 to make room for the strikers Ac- cordingly, the Respondent violated Section 8(a)(3) and (1) of the Act 18 18 As is our normal practice we shall leave to the compliance stage of the proceeding a determination whether strikers Norman and Vander water should have already been recalled whether strikers Brueggeman Burbank Ozbun Motzner Lewis and Thielman were properly recalled whether the recall rights of strikers Lacuren and Stephenson still exist and whether in view of striker Champions rejection of a recall offer of May 29 his backpay remedy should extend beyond that date In view of Brueggeman s acceptance of a supervisory position on May 28 we find that his backpay remedy does not extend beyond that date 1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED CONCLUSIONS OF LAW Delete the judge's Conclusions of Law 5, 6, 7, and 8 and add the following "5 By failing and refusing to execute a wage agreement supplemental to its 1980 collective-bar gaining agreement with the Union, which was reached on May 20, 1981, the Respondent violated Section 8(a)(5) and (1) of the Act "6 By rescinding and repudiating its 1980 collec- tive-bargaining agreement with the Union on May 13, 1981, the Respondent violated Section 8(a)(5) and (1) of the Act "7 By unilaterally changing the terms and con- ditions of its 1980 collective-bargaining agreement with the Union when it failed to enforce the union security clause and withhold and transmit to the Union dues from employee paychecks, the Re spondent violated Section 8(a)(5) and (1) of the Act "8 The Respondent's violations of Section 8(a)(5) and (1) of the Act described above in para- graph 6 converted the economic strike that began on May 11, 1981, into an unfair labor practice strike on May 13, 1981 "9 By refusing to reinstate unfair labor practice strikers on their unconditional offer to return to work, the Respondent violated Section 8(a)(3) and (1) of the Act `10 The unfair labor practices set forth above in paragraphs 5 through 7 and 9 affect commerce within the meaning of Section 2(6) and (7) of the Act " REMEDY Having found that the Respondent has violated Section 8(a)(1), (3), and (5) of the Act, we shall order it to cease and desist and to take certain af- firmative action necessary to effectuate the policies of the Act We shall order that, on request of the Union, the Respondent shall execute the wage supplemental agreement that was reached on May 20, 1981, or if the Union does not request execution, to bargain over wages, on request, with the Union and, if an understanding is reached, to embody the under- standing in a signed supplemental agreement We shall also order that, on request of the Union, the Respondent shall adhere to the 1980 collective-bar- gaining agreement with the Union including the union-security clause and restore the status quo prior to May 13, 1981, and continue it in effect until an agreement on any changes is reached with the Union or a bona fide impasse exists We shall also order the Respondent to transmit to the Union all dues collected on or after April 1, 1981, with in- terest to be computed in accordance with New Ho rizons for the Retarded, 283 NLRB 1173 (1987), except that interest accruing before January 1, 1987, shall be computed under Florida Steel Corp, 231 NLRB 651 (1977) We shall further order the Respondent to make whole the unit employees, in accordance with Ogle Protection Service, 183 NLRB 682 (1970), and the Union for any losses suffered since May 13, 1981, resulting from the Respond ent's repudiation of the 1980 collective-bargaining agreement with the Union Interest on these losses shall be computed as set forth above Having found that the economic strike converted to an unfair labor practice strike on May 13, 1981, we shall order the Respondent to immediately and fully reinstate, to the extent that it has not already done so, the unit employees who participated in the strike and who unconditionally offered to return to work on May 20, 1981 Reinstatement is to be to their former jobs or, if those positions no longer exist, to substantially equivalent positions if available, without prejudice to their seniority or other rights and privileges, discharging, if neces sary, any person hired by the Respondent on or after May 13, 1981 If, after those dismissals, there are insufficient positions available for the remaining former strikers, any available positions shall be ac corded the strikers in accordance with seniority or other nondiscriminatory criteria Former strikers who were permanently replaced prior to the con version of the strike and for whom no positions are immediately available shall be placed on a prefer ential hiring list in accordance with their seniority or other nondiscriminatory bases, and they shall be reinstated before any other persons are hired or on the departure of their preconversion replacements See Charles D Bonanno Linen Service, 268 NLRB 552 (1984) In addition, the former strikers entitled to immediate reinstatement shall be made whole for any loss of earnings they may have suffered by reason of the Respondent's refusal to reinstate them in accordance with their unconditional offer to return to work Backpay shall be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), with interest to be computed in the manner prescribed as set forth above ORDER The National Labor Relations Board orders that the Respondent, Hydrologics, Inc, Denver, Colo rado, its officers, agents, successors, and assigns, shall 1 Cease and desist from (a) Failing and refusing to bargain and meet con cerning wage reopener negotiations with Interna tional Brotherhood of Electrical Workers, Local HYDROLOGICS INC 1065 Union No 1823 as the exclusive bargaining repre- sentative of its employees in the bargaining unit (b) Failing and refusing to execute a wage agree- ment supplemental to its 1980 collective-bargaining agreement with the Union agreed on by it and the Union (c) Rescinding and repudiating its 1980 collec- tive-bargaining agreement with the Union because its employees engaged in a protected strike over wages during the term of the contract (d) Unilaterally changing terms and conditions of its 1980 collective bargaining agreement with the Union by failing to enforce the union-security clause and failing to withhold and transmit to the Union dues from employee paychecks because its employees engaged in a protected strike over wages during the term of the contract (e) Refusing to reinstate unfair labor practice strikers on their unconditional offer to return to work (f) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act 2 Take the following affirmative action neces sary to effectuate the policies of the Act (a) On request of the Union, execute the wage supplemental agreement that was reached on May 20, 1981, or if the Union does not request such exe- cution, bargain collectively in good faith regarding wages, on request, with the Union as the exclusive representative of its employees in the following ap- propriate unit and, if an understanding is reached, embody such understanding in a signed supplemen- tal agreement All production and maintenance employees employed by the Respondent at its Denver, Colorado plant, but excluding office clerical employees, and all guards, professional em ployees, and supervisors as defined in the Act (b) On request of the Union, adhere to the 1980 collective-bargaining agreement with the Union in cluding the union-security clause and restore its unit employees' terms and conditions of employ- ment in existence prior to May 13, 1981, and con- tinue them in effect until an agreement on any changes is reached with the Union or a bona fide impasse exists (c) Transmit to the Union all dues collected on or after April 1, 1981, with interest, as set forth in the remedy section of this Decision (d) Make whole, with interest, the unit employ ees and the Union for any losses they suffered since May 13, 1981, as a result of the Respondent's fail- ure to honor and apply its 1980 collective bargain- ing agreement with the Union, in the manner set forth in the remedy section of this decision (e) Immediately and fully reinstate, to the extent it has not already done so, its unit employees who participated in the strike that began on May 11, 1981, and who unconditionally offered to return to work on May 20, 1981, to their former jobs or, if those positions no longer exist, to substantially equivalent positions if available, without prejudice to their seniority or other rights and privileges, dis- charging, if necessary, any person hired by it on or after May 13, 1981 Make whole these employees for any loss of earnings they may have suffered as a result of the discrimination against them in the manner set forth in the remedy section of this deci- sion Place any remaining former strikers on a pref- erential hiring list in accordance with seniority or other nondiscriminatory basis and offer them em ployment before any persons are hired or on the departure of any striker replacements (f) Preserve and, on request, make available to the Board or its agents for examination and copy ing, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary to analyze the amount of backpay due under the terms of this Order (g) Post at its Denver, Colorado facility copies of the attached notice marked "Appendix "19 Copies of the notice, on forms provided by the Re gional Director for Region 27, after being signed by the Respondent'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 Respondent to ensure that the notices are not altered, defaced, or covered by any other material (h) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply 19 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 1066 DECISIONS 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 ordered us to post and abide by this notice Section 7 of the Act gives employees these rights To organize To form, join, or assist any union To bargain collectively through representa- tives of their own choice To act together for other mutual aid or pro tection To choose not to engage in any of these protected concerted activities WE WILL NOT fail and refuse to bargain and meet concerning wage reopener negotiations with International Brotherhood of Electrical Workers, Local Union No 1823 as the exclusive bargaining representative of its employees in the bargaining unit WE WILL NOT fail and refuse to execute a wage supplemental agreement to our 1980 collective bar gaining agreement with the Union agreed on be- tween us and the Union WE WILL NOT rescind and repudiate our 1980 collective bargaining agreement with the Union be cause our employees engage in a protected strike over wages during the term of the contract WE WILL NOT unilaterally change terms and conditions of our 1980 collective-bargaining agree- ment with the Union by failing to enforce the union-security clause and to withhold and transmit to the Union dues from employee paychecks be cause our employees engage in a protected strike over wages during the term of the contract WE WILL NOT refuse to reinstate unfair labor practice strikers upon their unconditional offer to return to work WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act WE WILL, on request of the Union, execute the wage supplemental agreement that was reached on May 20, 1981, or if the Union does not request exe- cution, WE WILL bargain collectively in good faith regarding wages, on request, with the Union as the exclusive representative of our employees in the following appropriate unit and, if an understanding is reached, embody such understanding in a signed supplemental agreement All production and maintenance employees employed by us at our Denver, Colorado plant, but excluding office clerical employees, and all guards, professional employees, and su pervisors as defined in the Act WE WILL, on request of the Union, adhere to the 1980 collective-bargaining agreement with the Union including the union-security clause and re- store our unit employees' terms and conditions of employment in existence prior to May 13, 1981, and continue them in effect until an agreement on any changes is reached with the Union or a bona fide impasse exists WE WILL transmit to the Union all dues collect- ed on or after April 1, 1981, with interest WE WILL make whole, with interest, the unit employees and the Union for any losses they suf- fered since May 13, 1981, as a result of our failure to honor and apply our 1980 collective bargaining agreement with the Union WE WILL immediately and fully reinstate, to the extent we have not already done so, our unit em ployees who participated in the strike that began on May 11, 1981, and who unconditionally offered to return to work on May 20, 1981, to their former jobs or, if those positions no longer exist, to sub- stantially equivalent positions if available, without prejudice to their seniority or other rights and privileges, discharging, if necessary, any person hired by us on or after May 13, 1981, WE WILL make these employees whole, with interest, for any loss of earnings resulting from the discrimination against them, and WE WILL place any remaining former strikers on a preferential hiring list in ac- cordance with their seniority or other nondiscrim inatory basis and offer them reinstatement before any other persons are hired or on the departure of any striker replacements HYDROLOGICS, INC Donald E Chavez Esq, for the General Counsel Walter V Siebert and Daniel J Collyar, of Denver Colo rado for the Respondent Rhett K Dacus Esq (Hornben MacDonald Factor & Buckley) of Denver Colorado for the Charging Party DECISION STATEMENT OF THE CASE RUSSELL L STEVENS Administrative Law Judge This case was tried in Denver Colorado on July 7 1982 1 I All dates hereinafter are within 1981 unless otherwise stated HYDROLOGICS INC The complaint is based on a charge filed May 21, 1981 by International Brotherhood of Electrical Workers, Local Union No 1823 (the Union) and an amended charge filed by the Union November 20 The complaint2 alleges that Hydrologics Inc (Respondent) violated 8(a)(3) (5), and (1) of the National Labor Relations Act (the Act) All parties were given full opportunity to participate, to introduce relevant evidence, to examine and cross ex amine witnesses, to argue orally, and to file briefs Briefs, which have been carefully considered, were filed by counsel for the General Counsel and Respondent On the entire record and from my observation of the witnesses and their demeanor, I make the following FINDINGS OF FACT I JURISDICTION Respondent is and at all times material has been, a corporation duly organized under and existing by virtue of the laws of the State of Colorado and maintains its principal office and place of business in Denver, Colora do where it is engaged in the manufacture and sale of electrical products In the course and conduct of its bust ness operations Respondent annually purchases and re ceived goods and materials valued in excess of $50,000 directly from points and places outside the State of Colo rado I find that Respondent is, and at all times material has been an employer engaged in commerce within the meaning of Section 2(2) (6), and (7) of the Act II THE LABOR ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union No 1823 is and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act III THE ALLEGED UNFAIR LABOR PRACTICES A Background3 Respondent manufactures custom controls and instru mentations systems and at times relevant had approxi mately 10 rank and file employees Robert Greer4 was Respondents vice president and general manager, and Lindy Hanneman 5 Greer s assistant, was head of the en gineering department Ralph Miller was Respondent s shop foreman until he was transferred to a purchasing position in March 1982 at which time the position of show foreman was eliminated Michael Breuggeman was a leadman prior to the strike that started Monday, May 11, and in which he participated Brueggeman was re called to work as a leadman under Miller on May 28, after the strike that ended May 21 but he assumed great er authority and responsibility after his recall Included 2 As amended June 9 and at trial July 7 1982 2 This background summary is based on stipulations of counsel and on testimony and evidence not in dispute 4 Individuals are referred to by their last names 5 Hanneman s brother Tony Hanneman was a replacement employee who was hired June 17 1981 1067 in his authority and responsibilities after his recall were those of hiring firing recommending hires and fires, interviewing job applicants, adjusting employee grei vances, discplining employees, granting employees time off attending supervisory meetings evaluating employ ees work performance, and inspecting employees work 6 Included among the rank and file employees were two alleged discriminatees, Betty Norman and Can dace Vanderwater Norman was employed March 12, 1979, and Vanderwater was employed April 16, 1981 Norman and Vandwater participated in the strike Respondent has had a bargaining agreement with the Union since August 1971 The most recent agreement' covered the period May 1 1980 to May 1, 1982 with provision, inter alia, for automatic renewal unless the contract was terminated by the parties, and with a provi sion (art 21(3)) for wage reopener on May 1, 1981 The most recent agreement also contained, inter alia, the fol lowing provisions ARTICLE 4 UNION COMPANY RELATIONS Section 1 It is the purpose and intent of the signatory parties hereto that all grievances arising between employ ees for whom the Union is recognized as bargaining representative in Article 1 hereof and the Company shall be settled in accordance with the grievance procedure set forth in Article 6 hereof Section 2 During the life of this Agreement the Union agrees that there shall be no strike slow down, or stay in work stoppage or any other strike, and the Company agrees that there shall be no lock out of employees It is understood and agreed that this Article shall not apply in the event of the Com pany s failure to apply an arbitration award ARTICLE 12 SENIORITY Section 1 Seniority is defined as length of service with Company since date of hire During the first ( 1st) ninety (90) calendar days of his employment , each employee shall be considered to be a probationary employee and the Company shall be free to discharge such employee for any cause whatsoever Section 3 It is agreed that promotions, demotions transfers layoffs and recalls shall be based on abili ty qualifications and seniority ability and qualifica tions most necessary to perform the work required being sufficient, seniority shall prevail Pursuant to the wage reopener provision of the con tract Dennis Thins the Union s business manager re quested by letter dated February 23 addressed to Green, negotiations for the purpose of increasing the rates of pay substantially At the same time, the Union request ed wage negotations with another employer similarly sit 6 It is found that Brueggeman was a supervisor within the meaning of the Act at all after his recall to work on May 28 ' G C Exh 2 1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD uated i e, Young Electric and Manufacturing Company (Young) By letter dated March 6 Jack Moore of the Mountain States Employees Council (Council) notified Thuis that he represented Respondent and Young and requested of Thuis, Please call me at your convenience for the pur pose of setting meeting dates Negotiations commenced on March 26 relative to wages only On March 31 Thuis notified the Federal Mediation and Conciliation Service (FMCS) of the proposed modification (wages) of the bar gaining agreement between Respondent and the Union A negotiation session was held on April 30, among rep resentatives of the Union, the Council Respondent Young and the FMCS Those representatives were Thuis, Moore, and Greer, Gene Champion, Bill Young, and Paul Trujillo of Young, and a representative of FMCS Wage proposals were received by the Union from Respondent and Young The proposals were taken by Thuis to employees of Respondent and Young, and the employees of both employers declined to accept the proposals A few days later Thuis got in touch with Thurman Sanders of FMCS to set up another negotiation session and thereafter, following a conversation with Moore Thuis and Moore met on May 8 Moore refused to change Respondent's position on its wage proposal and the employees went out on strike Monday morning, May 11 On May 13 Moore sent a mailgram to Thuis which stated INASMUCH AS YOUR LOCAL UNION HAS VIOLATED THE PROVISIONS OF ARTICLE 4 SECTION 2 OF THE LABOR AGREEMENTS AT YOUNG ELECTRIC AND MANUFACTURING COMPANY AND HYDROLOGICS INC PLEASE BE ADVISED THAT NOT ONLY HOURLY RATES OF PAY BUT OTHER CONDITIONS OF EMPLOY MENT MUST ALSO BE NEGOTIATED BEFORE A SET TLEMENT MAY BE RESOLVED AT THOSE COMPANIES The mailgram was not received by Thuis but it was read to him over the telephone by a Western Union employee on May 14 On May 19 Thuis met with Respondent s employees and the employees voted to accept Respond ent s ear r wage offer and go back to work On May 20 Thuis tried unsuccessfully to get in touch with Moore, and thereafter on the same day called Greer on the tele phone Thuis advised Greer that the employees had voted to accept Respondents offer and return to work Greer replied that the matter had been turned over to Respondents attorney and that no further action could be taken including action on the offer of employees to return to work without a meeting with Respondents at torney That same afternoon Moore called Thuis on the telephone and said he was sending a telegram to the Union The telegram dated May 20, was read to Thuis on the telephone, but the Union did not receive it until May 22 The telegram read in pertinent part INC CONSIDERS ITS AGREEMENT WITH YOUR UNION TO BE RESCINDED On May 21 the employees at Thuis suggestion, re turned to the plant and reported for work but no em ployees were put back to work that day On June 4, Thuis and Moore and other persons met to discuss the situation at Young and during that meeting the Union s attorney told Moore that he would like to arrange a meeting to discuss the situation at Respond ent s plant Moore was noncommittal stating that Greer was out of town During the week of June 8 Thuis talked with Moore and asked about a meeting Moore said he had not yet talked with Greer, and Thuis asked to be advised after Moore did talk with Greer No meet ing ever was arranged 8 All employees who were on strike have been offered reinstatement, except Norman and Vanderwater Those who were offered reinstatement either accepted the offer, declined the offer, or did not respond thereto Re instatements were made after May 21 as follows Name Date of Job recalled to Recall Michael Brueggeman 5-28-81 leadman Robin Burbank 5-29-81 wireman Timothy Ozbun 6-3-81 welder Keith Motzer 6-8-81 wiremen Deborah Lewis 6-8-81 wireman trainee Rockie Thielman 7-1-81 welder Tony Hanneman was hired as a laborer (new employ ee) on June 17, and Tony Uba was hired as a laborer (new employee) on June 25 Poststrike hires (after May 11) were Patrick McCartney hired on June 29 as a wire man trainee Timothy Martin hired on July 2 as a wire man trainee and nine others listed in General Counsel s Exhibit 8 B Legal Status of the Strike It has long been well settled that the right of employ ees to strike is a statutory right 9 That right, however is not an absolute one it is subject to restrictions of a con tractual as well as of a statutory nature The principal issue involves a contractual restriction of the employees right to strike That provision is quoted above, and the principal question is whether that provision constitutes a waiver of the right to strike for economic reasons, mid point in the term of the contract after reopening for wage negotiations To be effective waiver of that right must be `clear and unmistakable 10 In some instances a no strike contractual provision has been held not to con stitute waiver of the right to strike without regard to the reason for the strike In Mastro Plastics supra the Su PLEASE BE ADVISED THAT DUE TO YOUR UNLAWFUL BREACH OF THE COLLECTIVE BARGAINING AGREE MENT BETWEEN YOUR LOCAL UNION AND HYDRO LOGICS INC THAT EFFECTIVE WITH THE COMMENCE MENT OF YOUR UNLAWFUL STRIKE HYDROLOGICS 8 This paragraph is based on Thuis credited testimony Moore did not testify 8 238 NLRB 652 (1979) and cases cited therein 10 Mastro Plastics Corp v NLRB 350 U S 270 283-284 ( 1956) See also for a full discussion of the subject of such waivers Davis McKee Inc supra HYDROLOGICS INC preme Court of the United States held that a no strike contractual provision did not preclude a strike occa sioned by the unfair labor practice of an employer In Operating Engineers Local 18 (Davis McKee Inc ), 1 1 the Board held that a no strike contractual provision did not preclude employees from engaging in a sympathy strike 12 The General Counsel and the Charging Party rely on Lion Oil Co,13 for the statement that the right of the Union [to engage in mid term negotiations] would be an empty one without the right to strike after a 60 day notice That case does not provide a basis for deciding the controversy involved here A no strike provision was not involved Further, the General Counsels quotation was taken out of context and was applicable only to the issue involved in Lion Oil Co, i e, the construction of Section 8(d) of the Act Finally the Court in Lion Oil Co , recognized that contractual provisions must be con sidered when it stated at 352 U S 289 Unions would be wary of entering into long term contracts with machinery for reopening them for modification from time to time, if they thought the right to strike would be denied them for the entire term of such a contract, though they imposed no such limitations on themselves [Emphasis added ] The General Counsel and the Charging Party also rely on Into Roto Inc ,14 but that reliance is misplaced The contract there involved did not have a no strike provi sion 15 Further, Inta Roto involved interpretation of a contractural provision that seemed even to negate the desire for a no strike provision The contract included a reopener provision and stated [o]n such reopening, if the parties fail to come to agreement, either party shall have such course of action open to its [sic] as it would have had if this contract were to expire on such reopen ing date 252 NLRB at 765 The language quoted in the General Counsels brief refers to the administrative law judge's discussion in Into Roto of Lucas Flour 16 The General Counsel and the Charging Party argue that the no strike provision of the contract is only as ex tensive as the scope of the gnevance and arbitration pro cedures of the contract and that if the subject of the dispute is not arbitrable there is no quid pro quo for the no strike provision The basis for that argument is given as Gary Hobart Water Corp 17 However, a reading of 11 238 NLRB at 652 12 The General Counsel s citation of Knight Morley Corp 116 NLRB 140 (1956) enfd 251 F 2d 753 (6th Or 1957) is not applicable here be cause that case involved a statutory provision (Sec 502 of the Act) rather than a contractual provision is NLRB v Lion Oil Co 352 U S 282 (1957) 14 252 NLRB 764 (1980) 15 The contract provision there in issue is quoted at 252 NLRB 765 See also the administrative law judge s notation at 769 that a no strike provision was not involved The General Counsel argued that such a pro vision was implied which is different from the case here Here the par ties specifically agreed to a no strike no lockout provision 16 Teamsters Local 174 v Lucas Flour Co 369 U S 95 106 (1962) 17 210 NLRB 742 (1974) enfd 511 F 2d 284 (7th Cir 1975) cert denied 423 U S 925 (1975) 1069 that case makes it clear that the principle enunciated by the Board was based on the facts of that case the Board did not state a general principle, which would be appli cable in all instances wherein a no strike clause was in volved The contract provision at issue read (210 NLRB at 743 fn 4) (2) The Union agrees there shall be no strikes, slowdowns, or other interruptions of work by any of its members during the term of the agreement and both parties agree that any disputes or differ ences shall be taken up under the Grievance and Arbitration procedures of this agreement The Board stated at 210 NLRB at 746 It is our opinion that the no strike, no lockout promise was intended to be in effect only when the dispute between the parties is covered by and can be resolved by the grievance machinery Here the no strike, no lockout provisions are not only includ ed in the opening paragraph of the grievances pro vision but are part of the same sentence which sets up the grievance machinery and limits it to all dis putes and controversies arising under or in connec tion with the terms hereof ' Indeed, it is diffi cult to imagine a placement of the no strike provi sion which would delineate more clearly or em phatically that the no strike promise does not stand alone but is part of, and only as extensive as the scope of, the grievance machinery Both times that the no strike language appears the grievance Ian guage immediately follows It is our opinion that the Union pledged no strike only over matters which Respondent agreed to arbitrate In support of its conclusions the Board cited two earlier cases, which emphasize the Board s position that the wording of the contract is important in determining whether the parties intended that a no strike provision was tied to the grievance arbitration machinery and was to apply only to arbitrable matters Those two cases are Montana Dakota Utilities Co 18 and Kellogg Co,19 both of which involve sympathy strikes or sympathy picket ing In Montana Dakota the administrative law judge stated, and the Board concurred that both the contract no strike, no lockout provisions and the actions of the parties made it clear that only those collective cessa Lions of work and lockouts arising out of a controversy respecting the terms of the contract (which could be handled under the contracts grievance and arbitration machinery) were meant to be prohibited by the no strike no lockout provision zo The contract provision stated It is recognized that the Company is engaged in public service requiring continuous operation, and it is agreed, in recognition of such obligation of con tinuous service that during the term of this Agree 18 189 NLRB 879 (1971) 18 189 NLRB 948 (1971) 20 189 NLRB at 883 1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD ment there shall be no collective cessation of work by members of the Union and the Company will not lock out the employees covered by this Agree ment on account of any controversy respecting the provisions of the Agreement All such controversies shall be handled as provided herein Article VIII and IX of the contract establish grievance and arbi tration procedures for setting misunderstandings respecting the interpretation, construction , intent or meaning of any provision of the contract In Kellogg the Board found it clear , based on the con tract provision involved and other evidence , that the no strike language applied only to disputes arising under the contract The relevant provision of the contract stated (189 NLRB 948 at fn 2) NO STRIKES-NO LOCKOUTS Section 1101 (a) During the life of this Supplemental Agree ment no strike or work stoppage in connection with disputes arising hereunder shall be caused or sanctioned by the Union, or by any members thereof, and no lockout shall be ordered by the Company in connection with such disputes Thins credibly testified that the parties never dis cussed, or negotiated relative to, the question of whether the no strike clause or the arbitration provisions apply to the wage reopener provision of the contract As shown above, the language of the contract in volved here is quite different from that of the contracts in Gary Hobart Montana Dakota, and Kellogg, both in wording and the placement thereof The wording of the no strike provision here is not related to, or in any manner involved with the wording of the provisions re lating to grievances and arbitration Section 1 article 4 states in effect, that all employee grievances shall be set tied by the grievance procedure of the contract, but that section stands alone unrelated to the no strike provision In the language of the oft cited cases on this subject the no strike provision is all inclusive The no strike, no lockout provisions here are set forth separately and apart, in article 4 from those relating to the machinery of grievance and arbitration, in articles 6 and 7 Article 4 is entitled Union Company Relations , article 6 is enti tled Grievances article 7 is entitled Grievances Ar ticle 7 is entitled Arbitration Section 2 article 4 is broadly worded It states there shall be no strike, slow down, or stay in work stoppage or any other strike [Emphasis added ] That language is clear and un ambiguous and it must be taken at its face value because there is no other evidence of the intent of the parties The General Counsel and Charging Party argue that there is no waiver unless the waiver statement refers spe cifically by name, to what is being waived No cited or quoted case makes that statement and common sense dictates that such a provision would not be realistic If there were such a requirement a waiver provision would have to name a multitude of circumstances, at the risk of inadvertently overlooking one The law does not place such a risk on the parties, and permits them to make all inclusive waivers Such a possibility is at the core of most of the cases discussed here In the final analysis, the intent of the parties controls, unless statutory or public policy concepts intervene No statutory restriction is in volved in this case, and the Board has not found that, as a matter of public policy, a general no strike provision does not preclude strikes following reopener disputes The General Counsel and the Charging Party argue that the Union did not waive its right to strike, and the Charging Party states that it would not do so because Such a midterm wage reopener would be meaningless in the absence of the right to engage in an economic strike However it can be argued equally effectively that it would be meaningless for Respondent to sign a 2 year contract, expecting labor peace for that period of time, only to be subject to a strike after 1 year Both par ties signed the agreement, the language is clear, and there is no evidence that the parties even discussed the matter during negotiations or at any other time Possibly it can be argued that wages are the most important part of a contract and that, therefore, another limitation should be carved out of a no strike provision However, beside the fact that the intent of contracting parties must be given effect according to the words of the parties, such a limitation ignores the facts of the marketplace Waiver of the right to strike does not eliminate bargain ing pressures stemming from considerations such as re tention of a trained work force public relations employ er employee relations and community position It must be assumed that those matters were taken into account when the Union agreed not to strike for the term of its contract It is common knowledge that reopener negotia tions frequently are concluded in a successful manner without strike even though the basic agreement contains a no strike provision C Repudiation of the Contract Counsel for the General Counsel devotes much of his brief to the argument that Respondent rescinded the con tract but Respondent does not dispute that fact By its communications to the Union on May 13 and 20 Re spondent made it quite clear that Respondent rescinded the contract based on the Union s violation of a material violation of the agreement i e the no strike provision Moreover, Respondent also made it quite clear when it rescinded the contract that it was not withdrawing rec ognition of the Union as the bargaining representative of the unit employees or refusing to bargain with the Union To the contrary, the May 13 mailgram stated, inter alia, other conditions of employment must also be negotiated When the mailgram of May 20 was sent, and read on the telephone to Thins, the employees still were on strike As found above, the no strike provision was a valid one The Union violated that provision While the strike was in effect, Respondent rescinded the contract which it was entitled to do and offered to negotiate with the Union A similar situation prevailed in Marathon Electric HYDROLOGICS INC Mfg Corp 21 Several issues were involved, including the rescission of a contract The Board stated , inter alga, 106 NLRB at 1180-1181 The Trial Examiner found Respondents act of unilaterally cancelling the contract and all employee benefits thereunder to be a refusal to bargain in vio lation of Section 8(a)(5) and (1) of the Act Howev er, the contract itself specifically provided in Arti cle XII thereof that the Union will not authorize or sanction any strike Contrary to this pro vision of the contract , the UE officers stewards, and committeemen did call a strike on February 28 In these circumstances , we find that the Respond ent s unilateral cancellation of its contract with UE did not constitute a violation of Section 8(a)(5) and (1) of the Act but was justified by UE s prior breach of the contract D Alleged Refusal to Bargain The General Counsels brief discusses Respondent s continuing duty to bargain, but that duty is not in serious dispute Respondent's only contention on this issue in its brief is that the Union has not requested to bargain and that, until such a request is made, there can be no deter urination as to whether Respondent illegally refused to bargain Testimony on this issue was limited and is summarized supra The parties negotiated until May 8, the strike commenced May 11, Respondent rescinded the contract May 13 and 20, and the employees abandoned the strike and offered to return to work May 21 The only testimo ny relative to a bargaining request was that of Thuis, who is credited Thuis testified Q Now, subsequent to the telegram of May 20th had the Union attempted to meet and bargain with Hydrologics? A Yes, we did on two occasions On June the 4th, we met with the employers representative Mr Moore to work out a return agreement for Young Electric Q Who was present? A At this meeting was Jack Moore and Mr Young from Young Electric Don MacDonald from legal counsel of Hornbein MacDonald and myself, and Gene Champion We did work out an agreement with them Don MacDonald, at that meeting asked Mr Moore- told Mr Moore that we d like to meet with Hydro logics Mr Moore told Don MacDonald that Bob Greer was out of town and couldn t be reached so he couldn't tell him whether he could set up a meeting or not This was on June the 4th We met early in the morning, 8 30 in the morning Subsequent to that, I had an occasion to talk to Jack Moore I think it was the week following, the week of June the 8th and I asked Mr Moore if he had contact with Mr Greer in reference to setting 21 106 NLRB 1171 (1953) See also Moore Drop Forging Co 108 NLRB 32 (1954) Dow Chemical Co v NLRB 105 LRRM 3327 3332 (3d Ca 1980) 1071 up a meeting and he said, no, he hadn t talked to him yet and I said, Well, as soon as you do, let us know And to this day-and Don MacDonald had also told him to let us know when we could have a meeting, and to this day we ve never been contact ed for a meeting Respondent argues that there was never an effective request for bargaining Respondent contends that the foregoing facts, as stated by Thuis, do not constitute a bargaining demand Although the Union s request for bargaining was not specific, and although there may have been some ambi guity in the request, it is clear from Thuis testimony that the Union asked Moore to bargain and that Respondent has not, to date, responded to that request Thuis asked Moore on June 4 to meet with the Union, and during the week of June 8 to let him know as soon as Moore talked with Greer in reference to setting up a meeting By that time the strike was over The Union still represented the employees and although the contract was rescinded Respondent already had told the Union that there were matters that must be negotiated Clearly the Union s re quest for a ' meeting referred to the situation prevailing between the Union and Respondent relative to Respond ent s employees and the rescinded contract The fact that the Union did not state in so many words that the meet ing was for the purpose of bargaining, or negotiations is irrelevant Respondent denied in its answer that the Union repre sents Respondents employees, but no proof in support of that denial was adduced by Respondent at trial nor was the subject argued at trial or in Respondents brief The evidence that some employees crossed the picket line to work but those facts are irrelevant The general rule is that new employees, including striker replacements, are presumed to support the Union in the same ratio as those shown to have been replaced 22 It is found that Respondent violated Section 8(a)(5) and (1) of the Act as alleged by failing and refusing after June 4, 1981 to bargain with the Union upon re quest E Failure to Remit Dues to the Union Respondent admitted that it deducted and failed to remit union dues for its employees during the month of April and the first part of May Having found above that Respondent lawfully rescinded its contract with the Union on May 13 Respondent had no duty to deduct and remit union dues after that date By its failure to remit employees' union dues to the Union for April and the first 13 days of May 1981, Re spondent violated Section 8(a)(5) and (1) of the Act as alleged 22 Windham community memorial Hospital 230 NLRB 1070 1071 (1977) See also National Car Rental System 237 NLRB 172 (1978) 1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD F Recall of Strikers Although, as found above, the strike was an economic strike and not an unfair labor practice one, Respondent was obligated to reinstate employees who offered uncon ditionally to return to work on May 20, unless their jobs already were filled by replacements 23 General Counsel s Exhibit 8 shows the dates of hire of all striking and all replacement employees, and dates of recall of strikers That exhibit shows that replacements Tony Hanneman, Uba, McCartney, and Martin were hired after May 20 The exhibit also shows the following Thielman was re called July 1 after Tony Hanneman Uba, and McCart ney were hired as replacements Norman and Vander water were never recalled Greer acknowledged that Thielman could have filled the job Hanneman and Uba were hired for if he had wanted that position Respondent did not show that Thielman was offered the job, or even was considered for it 24 Thielman was a welder prior to the strike, and it is clear that, under Respondent s job descriptions, he was qualified for the job of wireman trainee Norman and Vanderwater are credited in their testi mony concerning their work history and qualifications Miller testified concerning their unsatisfactory work and their deficiencies, but that testimony appeared to be pre textual, and is not credited The jobs for which the re placements of Norman and Vanderwater were hired re quired little or no experience Norman had performed the work Hanneman and Uba were hired to do and she had done some work as a wireman She was qualified to work as a wireman trainee Greer and Miller testified, and Norman acknowledged that Norman, who worked at solderingand on installing nameplates did not like to do wiring However all three witnesses agreed that Norman never refused to do such work Greer and Miller testified that Norman and Vanderwater were not recalled as laborers because the work was too heavy for them but that testimony appeared pretextual and is not credited Further, Norman credibly testified that she cus tomarily performed work that Uba and Tony Hanneman did and that Vanderwater often helped her in that work Included was truck driving and loading and unloading trucks Vanderwater credibly testified that she was able to do the work of laborer, which is nonskilled It is clear from the record, and found that Norman and Vander water were qualified to do the work that Uba and Tony Hanneman were hired to do Norman credibly testified that on several occasions she talked with Greer and Brueggeman about getting her job back, but was not successful Greer told her that her job had been filled Several months after the strike she talked with Brueggeman who said he couldn t rehire me, that Mr Greer wouldn t allow it Brueggeman fur ther said Vanderwater would not be recalled because she was Norman s friend Vanderwater credibly testified that approximately once each week after the strike was over, she asked Greer about returning to work but was not successful Vanderwater testified that she talked with Greer in June or July I told him that I had heard there was a newspa per ad for the shipping and receiving job that I had had when I was there and that he had hired some body off the street for it And I asked him if that was true and he said yes, it was And I asked him how come I was not rehired and he said they were planning on building more crates' and I wasn't able to do that and the heavy lifting And that was his reasons Q Did you make any response? A Yes I told him that I knew how to use a hammer and nails I had never tried it but I thought I could do it, and that I could lift 50 pounds And he said that he had hired somebody else and I said Well, if he doesn't work out, will you recall me then? and he said no I said, Will you ever recall me for anything? and he told me no at that time Greer denied that he ever told Vanderwater, Bruegge man, Miller, or anyone else that Norman or Vander water would not be hired That denial is not credited The seniority provisions of the collective bargaining agreement, quoted above, constituted a working condi tion that survived Respondents rescission of the con tract Respondent was obligated to recall employees by seniority but failed to do so That failure constituted a violation of Section 8(a)(3) and (1) of the Act, as alleged IV THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of Respondent set forth in section III above occurring in connection with its operations de scribed in section I, above, have a close intimate, and substantial 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 CONCLUSIONS OF LAW 1 Hydrologics Inc is and at all times material has been, an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act 2 International Brotherhood of Electrical Workers, Local Union No 1823 is, and at all times material has been, a labor organization within the meaning of Section 2(5) of the Act 3 The following employees constitute a unit appropri ate for purposes of collective bargaining within the meaning of the Act 23 Laidlaw Corp 171 NLRB 1366 (1968) enfd 414 F 2d 99 (7th Cir 1969) cent denied 397 U S 920 (1969) 24 Greer first testified that he understood and later he knew Thielman did not want the job because it would have required a cut in pay but Miller who allegedly did know did not testify on this point Greer s testimony on this matter is not credited All production and maintenance employees em ployed by Respondent at its Denver Colorado plant, but excluding office clerical employees and all guards, professional employees and supervisors as defined in the Act HYDROLOGICS INC 1073 4 The Union is the exclusive collective bargaining representative of Respondents employees in the unit de scribed above for the purpose of collective bargaining with regard to wages hours, and other terms and condi tions of employment 5 By failing and refusing to meet at reasonable times and bargain on request of the Union on and after June 4, 1981 Respondent violated Section 8(a)(5) and (1) of the Act 6 By failing and refusing from April to May 13, 1981, to remit to the Union dues deducted from employees paychecks, Respondent violated Section 8(a)(5) and (1) of the Act 7 By failing and refusing to reinstate Rockie Thiel man Betty Norman, and Candace Vanderwater when vacancies arose after their unconditional requests for re instatement, Respondent discriminated with respect to their hire, tenure, and terms and conditions of employ ment in violation of Section 8(a)(3) and (1) of the Act 8 Respondent did not engage in unfair labor practices alleged in the complaint that are not found here THE REMEDY Having found that Respondent engaged in unfair labor practices, I will recommend that Respondent cease and desist therefrom, and take certain affirmative action de signed to effectuate the policies of the Act I have found that Respondent violated Section 8(a)(3) and (1) of the Act by failing to offer Rockie Thielman reinstatement when a vacancy arose after May 20, 1981 and by failing and refusing to reinstate Betty Norman and Candace Vanderwater when vacancies arose after their unconditional requests for reinstatement I will therefore, recommend that Respondent be ordered to offer Norman and Vanderwater immediate and full rein statement to their former or substantially equivalent pose tions without prejudice to their seniority vacation, or other rights and privileges, and to make Thielman, Norman, and Vanderwater whole for any loss of earn ings they may have suffered as a result of the discrimina tion against them, by payment to them of sums of money equal to those they normally would have earned but for Respondents discrimination against them less their net interim earnings with interest thereon to be computed in the manner prescribed in F W Woolworth Co, 90 NLRB 289 (1950), plus interest as set forth in Isis Plumb ing Co, 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977) It also will be recommended that Respondent be or dered to remit forthwith to the Union all dues deducted from the wages of employees pursuant to the rescinded bargaining agreement of the parties not previously remit ted