White Oak Coal Co., Inc.

WHITE OAK COAL CO. 567 White Oak Coal Co., Inc . and United Mine Workers of America, District No. 28.1 Cases 5-CA- 16843, 5-CA-17008, and 5-CA-17275 June 15, 1989 DECISION AND ORDER BY MEMBERS JOHANSEN, CRACRAFT, AND HIGGINS On March 17, 1986, Administrative Law Judge Thomas A. Ricci issued the attached decision. The General Counsel and the Charging Party each filed exceptions and supporting briefs. The Respondent filed a brief in opposition to 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 2 and conclusions only to the extent consistent with this Decision and Order. As more fully set forth by the judge, the Re- spondent operates a coal mine at a remote location in Dickenson County, Virginia. The Respondent is owned by Jerry Deel and his wife Arlene Deel. Arlene Deel runs and manages the Respondent's operation. The Respondent's employees are repre- sented by the United Mine Workers of America, District No. 28 (the Union or the Charging Party). The Respondent and the Union have been parties i The caption has been amended to reflect the correct name of the Charging Party. 2 The General Counsel and the Charging Party have excepted to some of the judge's credibility findings. 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 However, in so doing, we do not rely on, and emphatically disavow, the judge's finding that the General Counsel 's and the Charging Party's position on the condonation issue constituted, in effect, a concession that the General Counsel's witnesses were not credible. As more fully dis- cussed infra, counsel for the General Counsel and counsel for the Charg- ing Party contended that if the judge credited the Respondent 's witnesses (i.e., Arlene Deel and Patsy Fuller) rather than the General Counsel's witnesses, then a finding that the Respondent condoned any striker mis- conduct was mandated . In so arguing, counsel for the General Counsel and counsel for the Charging Party took positions akin to a party who engages in alternative pleading . See FRCP Rule 8(e)(2). Indeed, in the circumstances of this case , counsel for the General Counsel and counsel for the Charging Party would arguably have been remiss not to have made the arguments that they made . Regardless of our ultimate resolu- tion of the merits of the condonation issue, it is clear that counsel for the General Counsel and counsel for the Charging Party acted in a responsi- ble and legally sound manner in advancing their arguments . In these cir- cumstances, it was serious error for the judge cavalierly to characterize their position on the condonation issue as "fantasy" and to conclude that their position served as a basis for discrediting the General Counsel's wit- nesses. Nonetheless, based on our review of the record as a whole, we shall not reverse the judge's credibility findings to a series of collective-bargaining agreements.3 The most recent collective-bargaining agreement- the 1981-1984 National Bituminous Coal Wage Agreement-agreed on by the parties expired on September 30, 1984. During 1984, subsequent to the contract's expiration, the parties had three ne- gotiating sessions for a new contract . On Decem- ber 10, 1984, the employees began a strike at the Respondent's coal mine. Certain events occurring both before and after the strike gave rise to the al- legations of the complaint. 1. The complaint alleged, and the judge found, that the Respondent violated Section 8(a)(5) of the Act in numerous respects.4 Thus, the judge found that the Respondent violated Section 8(a)(5) of the Act by failing, in June 1984, to grant a wage in- crease as required by the parties' contract then in effect. Further, as found by the judge, the Re- spondent, after expiration of the contract , unilater- ally and unlawfully discontinued holiday and birth- day pay, vacation pay, and pension benefits. Final- ly, the judge found that the Respondent's refusal to accept and process two grievances prepared on behalf of employee Doug Coleman violated Sec- tion 8(a)(5) of the Act.5 The General Counsel excepts to the judge's fail- ure to find certain additional violations of Section 8(a)(5) of the Act. For reasons set forth below, we find merit in the General Counsel's exceptions. The complaint alleges, and we find, that the Re- spondent violated Section 8(a)(5) by unilaterally discontinuing payment for personal and sick leave. Article IX, section (e), of the parties' contract pro- vides that employees with one or more years of service are eligible for personal and sick leave. This section of the contract also provides that em- ployees who have not used up their paid personal or sick leave by the end of the calendar year will receive pay for the leave not used. In uncontro- verted testimony, the Respondent's bookkeeper Patsy Fuller testified that during 1984 the Re- spondent ceased paying employees for unused sick and personal days. The Respondent's unilateral dis- continuance of these payments violated Section 8(a)(5) of the Act. Crest Floors & Plastic, 274 NLRB 1230, 1252-1253 ( 1985); see generally Hen House Market No. 3, 175 NLRB 596 (1969). We further find, as urged by the General Coun- sel, that the Respondent violated Section 8(a)(5) by 8 We find, as alleged in the complaint, that art. IA, secs (a) and (b), and appendix B of the parties' most recent collective -bargaining agree- ment define a unit appropriate for collective bargaining. 4 The Respondent did not except to any of the judge's findings. 5 The Union attempted to file grievances pertaining to the Respond- ent's failure to pay Coleman for birthday benefits and the Respondent's discharge of Coleman on December 3, 1984. 295 NLRB No. 64 568 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD unilaterally discontinuing the contractual grievance procedure. As found by the judge, the Respond- ent's agent and main bargaining representative, Jack Head, told the union field representative that the Respondent was in the process of negotiating a new contract and that there was no grievance pro- cedure in effect. Moreover, according to the min- utes taken at the parties' bargaining session held on November 21, Head acknowledged that the Re- spondent did not have a grievance procedure in effect. Although the contract had expired, the Re- spondent's obligation to honor the contractual grievance procedure had not been extinguished.6 Thus, in regard to the grievance procedure, the Respondent's unlawful conduct was not merely its refusal to entertain the Coleman grievances but also its repudiation of the grievance procedure. By that conduct, the Respondent violated Section 8(a)(5) of the Act. The judge declined to order the Respondent to recognize and bargain with the Union. In so doing, the judge implicitly rejected the complaint allega- tions that the Respondent violated Section 8(a)(5) by, inter alia, declaring an impasse in negotiations when none existed and thereafter failing and refus- ing to meet with the Union. We disagree with the judge's findings. As noted, the contract expired on September 20. The parties held a total of three bargaining sessions in 1984. At the third bargaining session, on Decem- ber 13, the Respondent declared impasse, and it thereafter-until March 1985-refused to meet and bargain with the Union. It cited impasse as its reason for refusing to meet with the Union. A finding of impasse presupposes that the parties prior to the impasse have acted in good faith. Gen- erally, a lawful impasse cannot be reached in the presence of unremedied unfair labor practices. The Board has long held that an employer may not "parlay an impasse" resulting from its own miscon- duct. Wayne's Dairy, 223 NLRB 260, 265 (1976). Here, as the General Counsel urges , the Re- spondent engaged in unlawful conduct before De- cember 13. The Respondent's unilateral changes in the employees' terms and conditions of employ- ment constituted significant violations of the Act. In the context of that misconduct , no lawful im- passe could be reached. Accordingly, as alleged in the complaint, the Respondent unlawfully declared impasse when none existed and thereafter unlawful- ly refused to meet and bargain with the Union.7 9 Bethlehem Steel Co., 136 NLRB 1500 (1962), enfd. in relevant part sub nom. Shipbuilders v. NLRB, 320 F.2d 615 (3d Cir 1963), see also In- diana & Michigan Electric Ca, 284 NLRB 53 (1987). r In light of our finding on the impasse issue, we need not pass on the General Counsel's contention that the Respondent separately violated Sec. 8(a)(5) of the Act during the parties' negotiations by presenting a Based on this finding, we shall order, as a part of the remedy, that the Respondent, on request, bar- gain with the Union. 2. The complaint alleged, inter alia, that the Re- spondent made four unlawful threats in violation of Section 8(a)(1) of the Act. The complaint alleges three unlawful threats by Arlene Deel and one by Jack Head. The judge inexplicably failed to discuss fully these complaint allegations and the evidence relevant to them. We find, as alleged in the complaint, that the Re- spondent, by Arlene Deel, unlawfully threatened to discharge employee Doug Coleman for stating he would file a grievance over the Respondent's fail- ure to pay him birthday pay. According to Cole- man's essentially uncontradicted testimony ,8 Cole- man called Arlene Deel in October 1984 and raised the matter of his failure to receive birthday pay. In the past, according to Coleman, he had taken his birthday off but was paid for the day. Coleman tes- tified that Deel responded that she need not pay him because the contract had expired. When Cole- man protested that he would file a grievance over the matter, Deel replied that "he couldn't threaten her, she'd get rid of him."9 By that statement, Deel threatened to discharge Coleman for engaging in protected concerted activity-i.e., announcing an intent to file a grievance.10 See, e.g., Crown Zeller- bach Corp., 284 NLRB 111 (1987). Thereby, the Respondent violated Section 8(a)(1) of the Act. 3. The complaint alleges that the Respondent dis- charged employee Doug Coleman in violation of Section 8(a)(3) and (1) of the Act. The judge rec- ommended dismissal of this allegation , finding that the General Counsel had not proved a violation. The General Counsel and the Charging Party except. For reasons set forth below, we find merit in their exceptions. As more fully set forth by the judge, on Novem- ber 29, after learning of a coworker's death, several employees agreed that they would take the next take-it-or-leave-it proposal and by refusing to accept or consider counter- proposals Findings regarding these allegations would not affect the remedy. 8 Although the judge generally credited the testimony of Arlene Deel, Deel did not specifically deny making the statements on this matter at- tributed to her by Coleman. 0 Coleman's testimony in this regard is buttressed by the fact that the Respondent, as discussed elsewhere in this decision , did not honor the contract after expiration The Respondent consistently resisted attempts by the Union and its members to have it comply with the terms and con- ditions of employment set forth in the contract. 10 The other complaint allegations of 8(a)(1) violations, as well as the 8(a)(1) findings sought by the General Counsel on the basis that matters were fully litigated at the hearing, essentially involve, like the allegation sustained above, alleged threats to discharge for engaging in protected activity Accordingly, any findings made on these other allegations would be cumulative and thus we find it unnecessary to pass on these allegations. WHITE OAK COAL CO. 569 day off in memory of the employee. However, when Arlene Deel found out about the employees' plan, she called the employees at home on Thurs- day evening and told them to report to work on Friday. Deel told Coleman that any employee who did not work on Friday would be replaced. None- theless, Coleman told Deel that he would not be coming to work." Employee Bernard Viars told Deel that he would not be coming to work on Friday because he was going to the dentist. Other employees did report to work on Friday but Viars and Coleman did not return to work until Monday. After a discussion on Monday with both men, Deel sent Viars back to work but discharged Coleman. The General Counsel and the Charging Party argue that Coleman was discharged because of his protected activities. The Respondent contends that it discharged Coleman for "missing work." In Wright Line,12 the Board set forth its test of causation for cases alleging violations of the Act turning on employer motive. First, the General Counsel must make a prima facie showing suffi- cient to support the inference that protected con- duct was a motivating factor in the employer's de- cision. Once this is established, the burden shifts to the employer to demonstrate that the same action would have taken place even in the absence of the protected conduct. We find that the General Counsel established a prima facie case of a violation in regard to Cole- man's discharge. The General Counsel established that Coleman testified contrary to the Respondent's interests at an arbitration hearing in late August 1984.18 It was also established that Coleman pur- sued efforts to obtain his birthday pay, pursuant to the parties' contract, for his October 8 birthday. These efforts included his announced intention to file a grievance over the matter. Coleman's testify- ing at the arbitration hearing and his efforts to obtain contractual benefits were clearly protected activities 14 and the Respondent was aware of those activities.15 Moreover the record establishes ' I The judge found that Coleman told Deel that he was going hunting on Friday 12 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cit. 1981), cert. denied 455 U.S 989 (1982), approved in NLRB Y. Transportation Manage- ment Corp , 462 U .S. 393 (1983). Is The judge inexplicably failed to resolve a credibility dispute and de- termine whether or not Jerry Deel, the Respondent 's president, informed employee Larry Deel that Coleman , because of his testimony at the arbi- tration hearing, should look for another job. However , the judge's failure to make a finding regarding the alleged threat is not critical to our reso- lution of the complaint allegation regarding Coleman's discharge 14 See Crown Zellerbach Corp, supra 's Though Arlene Deel initially equivocated in regard to Coleman's claim for birthday pay, she ultimately conceded , as found by the judge, that she discussed the matter with Union Committeeman Clement O'Qmnn. Similarly, after some equivocation, Arlene Deel admitted that she considered Coleman to be someone who was always starting trouble with the other employees. Also, she testified that the union committee- that the Respondent bore substantial animus toward the Union. In particular, the Respondent entertained hostility towards the efforts by the Union and its members to enforce the provisions of the collective-bargaining agreement-as Coleman was doing by seeking birthday pay. Indeed, we have found that the Respondent unlawfully threat- ened Coleman with discharge for announcing an intention to file a grievance. The discharge oc- curred shortly after Coleman's participation in pro- tected conduct. Certainly, an inference is warrant- ed that Coleman's protected activities were a moti- vating factor in the Respondent's decision to dis- charge Coleman. Before the judge, the Respondent urged that it discharged Coleman for missing work on 2 consec- utive days. The judge, in effect for a reason other than that urged by the Respondent, found that the Respondent's discharge of Coleman was lawful. Contrary to the judge, we cannot find that the Re- spondent established that it would have discharged Coleman in the absence of his protected activity. In her affidavit and at trial, Arlene Deel, the person who discharged Coleman, testified, in sup- port of the Respondent's contention that Coleman was discharged for "missing work," that Coleman was discharged for being absent 2 days-Friday and Saturday. However, as the judge found, the employees did not work on Saturday. Though Deel may have contemplated operating on Satur- day, she changed her mind, and the mine was closed on Saturday. Thus, as the judge correctly found, the Respondent was "clearly wrong" to say that Coleman was absent on Saturday. Nonetheless, the judge concluded that the Re- spondent had discharged Coleman essentially be- cause Coleman "expressed his complete affront to the owner's proper instruction." In so concluding, the judge, in effect, found that the reason for Cole- man's discharge was a reason other than that prof- fered by the Respondent for the discharge. Contrary to the judge, we cannot "understand" Deel's offering reasons for the discharge that were demonstrably false. In a case turning on employer motivation, it is not for the judge to offer reasons not advanced by the employer to justify the em- ployer's actions.16 Here, the Respondent, to rebut the General Counsel's prima facie case, stated, through Deel, that it discharged Coleman for being man told her that the men were "going to start trouble over the holidays and birthday pay." From Deel's affidavit, her testimony , and the record as a whole, we infer that Deel viewed Coleman as a troublemaker, at least in part , because of his efforts to obtain birthday pay and to enforce the contract. 16 See NLRB v. Great Dane Trailers, 388 U S . 26, 34-35 (1967). 570 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD absent from work for 2 consecutive days.17 The Respondent did not state that it discharged Cole- man for showing an affront or indifference to man- agement's rights. Given that Coleman was not absent from work on Saturday, the Respondent's proffered reason for the discharge was false and must be deemed a pretext . Further, the Respond- ent's reliance on a reason for the discharge that was "clearly wrong" lends support to a finding that the discharge was for unlawful reasons.18 Ac- cordingly, we find that the Respondent's discharge of Coleman violated Section 8(a)(3) and (1) of the Act. 4. The complaint alleges, inter alia, that the Re- spondent refused to reinstate the striking employees in violation of Section 8(a)(3) and (1) of the Act. The judge found that the strike that commenced on December 10, 1984, was an unfair labor practice strike from its inception . 19 He further found that on April 4, 1985, the Union made an unconditional offer on behalf of striking employees to return to work. The Respondent did not respond to this offer. The judge concluded that the strikers had en- gaged in striker misconduct sufficiently serious to justify the Respondent's failure to reinstate the strikers. He also rejected the General Counsel's and the Charging Party's contention that the Respond- ent had condoned any and all striker misconduct. Accordingly, he recommended dismissal of this al- legation of the complaint . The General Counsel and the Charging Party except, and we find merit in their exceptions. Based on the following, the General Counsel and the Charging Party urged that the Respondent con- doned any striker misconduct. According to the Respondent, primarily through the testimony of Arlene Deel, strikers engaged in serious miscon- duct in late December 1984 and through March 1985. As noted, in early April the Respondent, on the Union's unconditional offer to return on behalf 17 The General Counsel suggests that the Respondent contended that Coleman missed 2 days of work because the "attendance control" provi- sion of the parties' contract sanctions an employee's discharge only on that employee's being absent for 2 consecutive days (i.e., not for I day's absence). Thus, according to the General Counsel , the Respondent was aware that discharging Coleman for I day's absence would violate the contract. Although the General Counsel 's explanation is plausible, we need not determine the Respondent's reasons for offering false reasons for the discharge of Coleman. The point is that the reason advanced for the discharge was false. The General Counsel also cites substantial record evidence suggesting that employees often missed I day's work and were not disciplined. Thus, the General Counsel argues that Coleman's dis- charge demonstrates disparate treatment of Coleman by the Respondent. Again, as the Respondent's proffered reason for the discharge was false, we need not pass on the General Counsel's contention. Finally, in light of our decision regarding Coleman 's discharge, we need not decide wheth- er, as contended by the General Counsel , the Respondent's discharge of Coleman constituted an unlawful unilateral discontinuance of the contrac- tual attendance control provision 19 NLRB Y. Shattuck Denn Mining Corp., 362 F.2d 466 (9th Cir. 1966). 19 There are no exceptions to this finding. of all striking employees , failed to reinstate the strikers. Thereafter, in late April 1985, the Re- spondent had an opening for a roof bolter position. According to Arlene Deel and her sister, Respond- ent's bookkeeper Patsy Fuller, Arlene Deel person- ally contacted seven of the eight strikers one by one and offered them the opening .2 ° According to Deel, each striker rejected the offer. Recently, in General Electric Co., 292 NLRB 843 (1989), the Board reviewed the doctrine of condo- nation. As set forth in General Electric, condona- tion applies when there is clear and convincing evi- dence that the employer has agreed to forgive the misconduct, to "wipe the slate clean," and to resume or continue the employment relationship as though no misconduct had occurred .211 In deciding whether an employer has condoned certain misconduct, the Board does not look for any "magic words" suggesting that the employer has forgiven the employee . Thus, the Board must examine whether all the circumstances establish clearly and convincingly that the employer has agreed to "wipe the slate clean" in regard to any employee misconduct. Certainly, condonation is not to be lightly inferred.22 We find on the facts here that a finding of con- donation by the Respondent is fully warranted. Arlene Deel was the Respondent's vice president, and she managed the Company. She did the hiring and firing. She was also the Respondent's primary witness regarding striker misconduct, and she testi- fied that she personally witnessed substantial striker misconduct. However, in late April 1985 when she had an opening for a roof bolter, she personally contacted seven strikers and offered them reem- ployment . Her offers were neither tentative nor 20 According to Arlene Deel, the eighth striker-Tony Deel-was not offered the job because he did not have the requisite skills Arlene Deel testified that if Tony Deel possessed the requisite skills he would have been offered the open position 21 In examining condonation in General Electric, the Board sought guidance from cases including Kohler Ca, 128 NLRB 1062, 1105 ( 1960), enfd. in part and remanded sub nom Auto Workers Local 833 v. NLRB, 300 F 2d 699 (D.C Cir. 1962), cert denied 382 U.S. 836 (1965); NLRB v. Colonial Press, 509 F.2d 850 (8th Cir 1975), cert denied 423 U.S. 833 (1975); NLRB v. Community Motor Bus Ca, 439 F.2d 965 (4th Cir. 1971), Bakery Workers Local 805 v. NLRB, 312 F.2d 108 (2d Cir 1963); and Plasti-Line, Inc. Y. NLRB, 278 F.2d 482 (6th Cir. 1960). 22 In denying enforcement of the Board's Order in NLRB Y. Colonial Press, supra, the court found that an employer had not condoned certain misconduct In so finding , the court viewed the employer's statements re- garding reemployment of the strikers as so general in nature as to "amount only to preliminary invitations to renegotiate employment." Thus, the court, applying the test we use here , disagreed with the Board on the facts of that case. Similarly, in NLRB Y. Community Motor Bus Ca, supra, the court found that statements by an employer's superintendent to the effect that the strikers were wanted back were not sufficient to constitute condona- tion. Again, however, the court applied the test we now apply in this case. WHITE OAK COAL CO. 571 preliminary23-she flat out asked the strikers to come back to work.24 Thus, the person who man- aged the Company and personally witnessed mis- conduct offered the strikers immediate reemploy- ment. This fact establishes clearly and convincingly that the Respondent intended to overlook the strik- ers' misconduct, wipe the slate clean, and permit the continuation or the resumption of the employ- ment relationship. The courts, in Colonial Press and Community Motor Bus, deemed it significant in a condonation case whether or not the employment relationship had been severed prior to the condonation. Ac- cording to the court in Colonial Press: [I]f the employment relationship was, in fact, terminated before the alleged condonation, something additional must be done by the former employee, in response to the compa- ny's reemployment offer, in order to reestab- lish the employer-employee relationship. If, however, the employer-employee relationship has not been terminated and the employee seeks to return to work, as is the conventional fact pattern in labor condonation cases, then the employer's offer for the worker to return to work may be determinative. Here, at the time of the Respondent's condona- tion of the misconduct, the employment relation- ship had not been terminated . The Board has held essentially that a discharge is effected when notice of the discharge is effectively communicated to the employee or the employee's agent. See, e.g., Wood- lawn Hospital, 274 NLRB 796 ( 1985). Here, the Re- spondent, prior to its condonation, had not in- formed the employees or the Union that the em- ployees were considered discharged. 25 When the Union made an unconditional offer to return on behalf of the strikers, the Respondent failed to re- spond. Thus, the strikers remained employees at the time of the condonation of the strike miscon- duct. It was not until the Respondent and the Union met on June 12, 1985, for their fourth and final negotiating session that the Respondent con- veyed that it considered the strikers no longer to be its employees.26 Therefore, as the employer-em- 22 For example, in the case of striking employee Dale Vlars, Deel drove to Viars' home to ask him personally to return to work 24 There is no evidence nor allegation of striker misconduct occurring subsequent to Arlene Deel's offers of reemployment to strikers. 25 Cf Christopher Construction Co., 288 NLRB 1272 (1988). In Chnsto- pher, the Board found that an employer discharged striking employees when it stated to them that they had to return at a set time or the em- ployer would consider them to have quit . The strikers were also told that if they later wanted to return to work, they would have to reapply. See also Champ Corp., 291 NLRB 803, 804-805 (1988). 26 At the June 12 meeting, the Union continued to seek the return of the strikers and inquired about the Respondent 's failure to respond to its ployee relationship had not been terminated at the time of the condonation '27 the striking employees, under the court holdings in Colonial Press and Community Motor Bus, were not required to take any action to restore the employment relation- ship.28 Based on the foregoing, we find that the Re- spondent violated Section 8(a)(3) and (1) of the Act by refusing to reinstate the unfair labor practice strikers on their unconditional offer to return to work. Finally, as urged by the General Counsel, we shall include among the unfair labor practice strik- ers unlawfully denied reinstatement both Tony Deel and Douglas O'Quinn. In regard to Tony Deel, we find, based on the testimony of Arlene Deel, that any misconduct he committed was condoned. Though Deel did not offer Tony Deel reinstatement, she testified that had he been qualified for the job opening she would have offered it to him. Thereby, Arlene Deel admitted that she condoned Tony Deel's ac- tions and thus the failure to reinstate him violated Section 8(a)(3) of the Act. Douglas O'Quinn was hired by the Respondent a few days before the strike began.29 However, he never commenced working for the Respondent. Rather, to "avoid trouble," O'Quinn honored the picket line though he did not picket. By his actions, O'Quinn made common cause with the strikers, and he is entitled to the rights of an unfair labor practice striker. Dave Castellino & Sons, 277 NLRB 453 (1985). See also Western Stress, Inc. , 290 NLRB 678 (1988). As there is no contention that O'Quinn, who did not picket, engaged in any strike misconduct, the Respondent's failure to reinstate him, on the Union's unconditional offer to return,30 violated Section 8(a)(3) and (1) of the Act. 31 offers to return . The Respondent at this meeting stated that it considered the strikers to be "ex-employees." 27 As previously discussed, the Respondent unlawfully discharged em- ployee Coleman on December 3, 1984. However, we also find that Cole- man, on joining the strike, assumed the status of an unfair labor practice striker. Further, under the circumstances here , Coleman's status should be the same as the other strikers. That is, Coleman was not discharged during the strike for strike misconduct and thus we shall deem that, as of the Respondent's condonation, Coleman's employment had not been ter- minated. Certainly, Deel, when offering Coleman the roof bolter position, did not treat him differently from any other striker. 28 As the striking employees here were not discharged prior to the condonation, we need not rely on the Board's decision in Colonial Press. 29 The judge failed to make findings in regard to Douglas O'Quinn 90 Contrary to the Respondent, there is no basis for holding that Douglas O'Quinn was not included in the Union's offer to return because it was not shown that O'Quinn had joined the Union. The Union, as the employees' collective-bargaining agent, represented all striking employees and its offer to return encompassed any and all strikers. 31 The record reflects that O'Qmnn accepted other employment during the strike. Thus, the Respondent may raise , at the compliance stage of Continued 572 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD AMENDED REMEDY Having found that the Respondent has engaged in certain unfair labor practices, we shall order the Respondent to cease and desist and to take certain affirmative action to effectuate the policies of the Act. Having found that the Respondent has unlawful- ly refused to bargain with the Union, we shall order that it recognize the Union and, on request, bargain collectively with the Union as the exclu- sive bargaining representative of the employees in the appropriate unit. Having found that the Respondent unlawfully changed the wages and other terms and conditions of employment of unit employees, including but not limited to changes in wage rates , holiday pay, birthday pay, vacation pay, pension benefits, per- sonal and sick leave pay, and the grievance proce- dure, we shall order the Respondent, on request, to implement the wage increase called for in the par- ties' most recent contract, to restore, to the extent requested by the Union, all other benefits and, on request, process any grievances, including those of employee Doug Coleman , under the grievance pro- cedure. We shall order the Respondent to make the bar- gaining unit employees whole for any loss in wages or other benefits they may have suffered, as pre- scribed in Ogle Protection Service, 183 NLRB 682 (1970), with interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987). Any additional amounts owed to the pension fund shall be resolved at the compli- ance stage of this proceeding. Merryweather Optical Co., 240 NLRB 1213 (1979). Having found that the Respondent unlawfully discharged Doug Coleman we shall order the Re- spondent to offer Coleman reinstatement to his former position or, if that position no longer exists, to a substantially equivalent position . The Respond- ent shall be ordered to make whole Coleman for any losses resulting from his unlawful discharge with earnings as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), plus interest as set forth above. Having found that the Respondent unlawfully failed to reinstate striking employees , who were en- gaged in an unfair labor practice strike, we shall order the Respondent to offer them full and imme- diate reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without impairing the employ- this proceeding, a contention that O'Quinn demonstrated an unequivocal resolve not to accept reinstatement . See Harowe Servo Controls, 250 NLRB 958, 964 (1980) ees' seniority or other rights and privileges, dis- missing, if necessary, any person hired as a replace- ment on or after December 10, 1984. In regard to the unfair labor practice strikers, an issue arises about whether a make-whole remedy is appropriate. The Respondent made offers of rein- statement to certain striking employees (i.e., except Tony Deel and Douglas O'Quinn) and those offers were refused. However, we find that the Respond- ent's offers were invalid. An invalid offer of rein- statement does not toll a striking employee's right to backpay nor does the employee's rejection of that offer waive the employee's right to reinstate- ment. When, as here, the offers contemplate rein- statement to positions with unlawfully imposed terms and conditions of employment, the offers are invalid. PRC Recording Co., 280 NLRB 615 fn. 2 (1986), enfd. sub nom. Richmond Recording Corp. v. NLRB, 836 F.2d 289 (7th Cir. 1987); Brooks, Inc., 228 NLRB 1365, 1368 fn. 18 (1977); see also blood- line Motor Freight, 278 NLRB 1141, 1143 fn. 5 (1986), enfd. in relevant part 843 F.2d 285 (8th Cir. 1988). Accordingly, we shall order the Respondent to make all the unfair labor practice strikers whole for any loss of earning suffered by them by reason of the Respondent's failure to reinstate them on the Respondent's condonation of the strikers' miscon- duct32 with earnings computed as prescribed in F. W. Woolworth Co., 90 NLRB 289 (1950), with interest computed as set forth above. Finally, in light of the serious nature of the Re- spondent's unfair labor practices, we shall impose a broad remedial order. Hickmott Foods, 242 NLRB 1357 (1979). ORDER The National Labor Relations Board orders that the Respondent, White Oak Coal Company, Hays, Virginia, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Threatening employees with discharge for an- nouncing their intention to file a grievance. (b) Refusing to bargain with United Mine Work- ers of America, District No. 28 as the exclusive representative of the employees in the appropriate bargaining unit by declaring impasse when none existed and thereafter refusing to meet and bargain with the Union. (c) Unilaterally changing the employees' terms and conditions of employment by failing to pay a contractual wage increase and by discontinuing, on 32 Member Higgins would begin the backpay period on the date of the unconditional offer to return to work by the strikers inasmuch as the Re- spondent never notified any strikers that their employment was terminat- ed or even that it was in jeopardy because of misconduct WHITE OAK COAL CO. 573 expiration of the parties' contract, holiday pay, birthday pay, vacation pay, pension fund payments, personal and sick leave pay, and the grievance pro- cedure. (d) Discharging employees because they engage in union and/or protected concerted activities. (e) Failing to reinstate unfair labor practice strik- ers on their unconditional offer to return to work. (f) In any other manner interfering with, restrain- ing, 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, bargain collectively with the Union as the exclusive collective-bargaining repre- sentative of the Respondent's employees in the ap- propriate unit, as defined in article IA, sections (a) and (b), and appendix B, of the parties' most recent collective-bargaining agreement, in regard to rates of pay, wages, hours of employment, and other terms and conditions of employment and, if an agreement is reached, embody that agreement in a written, signed instrument. (b) Restore, to the extent requested by the Union, the wages, hours, and other terms and con- ditions of employment required by the parties' con- tract that expired September 20, 1984, and notify the Union that the Respondent will, on request, process any grievances arising under the grievance procedure. (c) Offer Doug Coleman immediate and full rein- statement to his former position or, if that position no longer exists, to a substantially equivalent posi- tion, without prejudice to his seniority or other rights and privileges previously enjoyed, discharg- ing if necessary other employees who may have been hired in his place. (d) Offer the unfair labor practices strikers set forth below immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, discharging if necessary employees who may have been hired to replace them. The unfair labor practice strikers are Larry Dean Deel, Leslie Charles, Danny Deel, Tony Deel, Doug Coleman, Richard Kiser, Carl Sykes, Dale Viars, and Douglas O'Quinn. (e) Make whole Doug Coleman for any loss of earnings he may have suffered by reason of the Re- spondent's unlawful discharge of him in the manner set forth in the amended remedy section of this de- cision and make whole all unfair labor practice strikers, named above, for any loss of earnings suf- fered by them by reason of the Respondent's un- lawful failure to reinstate them in accordance with the amended remedy section of this decision. (f) Remove from personnel files any reference to the discharge of Doug Coleman and notify him in writing that this has been done and that evidence of this unlawful discharge will not be used as a basis for future personnel actions against him. (g) 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 reports, and all other records necessary to analyze the amount of back- pay due under the terms of this Order. (h) Post at its place of business in Hays, Virginia, copies of the attached notice marked "Appen- dix."33 Copies of the notice, on forms provided by the Regional Director for Region 5, after being signed by the Respondent's authorized representa- tive, shall be posted by the Respondent immediate- ly 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. (i) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Respondent has taken to comply. 98 If this Order is enforced by a judgment of a United States court of appeals, the words in the notice reading "Posted By Order of The Na- tional Labor Relations Board" shall read "Posted Pursuant To a Judge- ment 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 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. 574 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD WE WILL NOT threaten employees with dis- charge for announcing an intention to file a griev- ance. WE WILL NOT refuse to bargain with United Mine Workers of America, District No. 28, as the exclusive representative of the employees in the ap- propriate bargaining unit by declaring impasse when none exists and thereafter refusing to meet and bargain with the Union. WE WILL NOT unilaterally change our employ- ees' terms and conditions of employment by failing to pay a contractual wage increase and by discon- tinuing, on expiration of the contract, holiday pay, birthday pay, vacation pay, pension fund payments, personal and sick leave pay, and the grievance pro- cedure. WE WILL NOT discharge employees because they engage in union and/or protected concerted activi- ties. WE WILL NOT fail to reinstate unfair labor prac- tice strikers on their unconditional offer to return to work. WE WILL NOT in any other manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain collectively with the Union as the exclusive collective-bargaining representative of our employees in the appropriate unit, as defined in article IA, sections (a) and (b), and appendix B, of our most recent collective-bar- gaining agreement in regard to rates of pay, wages, hours of employment, and other terms and condi- tions of employment and, if an agreement is reached, embody that agreement in a written, signed instrument. WE WILL, to the extent requested by the Union, restore the wages, hours, and other terms and con- ditions of employment required by the parties' con- tract that expired September 20, 1984, and notify the Union that WE WILL, on request, process any grievances arising under the grievance procedure. WE WILL offer Doug Coleman immediate and full reinstatement to his former position or, if that position no longer exists, to a substantially equiva- lent position, without prejudice to his seniority or other rights and privileges previously enjoyed, dis- charging if necessary other employees who may have been hired in his place. WE WILL offer the unfair labor practice strikers set forth below immediate and full reinstatement to their former positions or, if those positions no longer exist, to substantially equivalent positions without prejudice to their seniority or other rights and privileges previously enjoyed, discharging if necessary employees who may have been hired to replace them. The unfair labor practice strikers are Larry Dean Deel, Leslie Charles, Danny Deel, Tony Deel, Doug Coleman, Richard Kiser, Carl Sykes, Dale Viars, and Douglas O'Quinn. WE WILL make whole Doug Coleman for any loss of earnings he may have suffered by reason of the Respondent's unlawful discharge of him and make whole all unfair labor practice strikers, named above, for any loss of earnings suffered by them by reason of the Respondent's unlawful fail- ure to reinstate them. WE WILL remove from personnel files any refer- ence to the discharge of Doug Coleman and notify him in writing that this has been done and that evi- dence of this unlawful discharge will not be used as a basis for future personnel actions against him. WHITE OAK COAL COMPANY Charles L. Posner, Esq., for the General Counsel. Timothy McAfee, Esq., of Norton, Virginia, and Steven M. Hodges, Esq., of Abington, Virginia, for the Respond- ent. James J. Vergara Jr., Esq., of Hopewell , Virginia, for the Charging Party. DECISION STATEMENT OF THE CASE THOMAS A. Ricci, Administrative Law Judge. A hear- ing in this proceeding was held on 9 and 10 October 1985, at Bristol , Tennessee, and on 18, 19, 20, and 21 No- vember 1985, at Lebanon, Virginia, on complaint of the General Counsel against White Oak Coal Company (the Respondent or the Company). The complaint issued on 27 September 1985, on various charges filed from 27 No- vember 1984 to 21 May 1985, by United Mine Workers of America, District No. 28 (the Charging Party or the Union). The essential issues presented are whether the Respondent discharged an employee in violation of Sec- tion 8(a)(3) of the Act, whether the Union struck in pro- test against unfair labor practices committed by the Re- spondent, and whether the Respondent illegally refused to take back strikers who made a proper offer of return to work. Briefs were filed by all parties after the close of the hearing. On the entire record and from my observation of the witnesses I make the following FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT White Oak Coal Company is a Virginia corporation engaged in the operation of a coal mine ; its office and place of business is in Hays, Virginia . During the 12- month period preceding issuance of the complaint, a rep- resentative period, in the course of its business it sold and shipped materials valued in excess of $50,000 to Clinchfield Coal Company, an enterprise within the State of Virginia. Clinchfield Coal is engaged in the mining, transportation, and selling of coal; during the 12 months WHITE OAK COAL CO. preceding issuance of the complaint it sold and shipped from its Virginia place of business products and materials valued in excess of $50,000 directly to points outside the State of Virginia. I find that the Respondent in this case is an employer within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED I find that United Mine Workers of America is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES From 1981 to 30 September 1984, the Respondent and the Union were parties to a multiemployer collective- bargaining agreement (the National Bituminous Coal Wage Agreement). Before its expiration , the Respondent and the Union started to negotiate a renewal of the agreement between them. There were several meetings of the parties between 1 October and 10 December. The Respondent discontinued a number of money benefits which the expired contract called for. On 3 December it discharged an employee , Douglas Coleman. On 10 De- cember 1984, the Union called a strike . The strike was still in progress at the time of the hearing towards the end of 1985. On 4 April 1985 the Union wrote a letter to the Company offering to return all the strikers to work unconditionally. The Respondent ignored the offer. This is how matters stood at the time of the hearing. Did the Respondent commit unfair labor practices before the strike? In its answer it denies any allegations of statutory violations. That the Company did in fact dis- continue economic benefits clearly called for in the con- tract, while the men were still working, both before and after its expiration, was virtually admitted by the princi- pal witness for the Respondent, as will appear below. As to the discharge of Coleman, just before the strike, the Respondent defends on the ground that it had proper reason to dismiss him. Was the strike called for economic reasons because the Company had not agreed to the Union's contract renew- al proposals, or was it an unfair labor practice strike pro- voked by the Company's earlier violations of the statute? On this question there is evidence both ways. Were the strikers entitled to reinstatement when the offer to return was made the following April? If they were unfair labor practice strikers, the Company was ob- ligated to put them back to work regardless of whether they had been replaced . Here the defense is that the men had so misconducted themselves during the strike that under Board law the Company was not obligated to take them back in any event. A. Unfair Labor Practices Before the Strike Three employees testified that before the contract ex- pired, in about June 1984, they were denied a raise called for at that time by the terms of the agreement , although they asked for it. Patsy Fuller, the Respondent's book- keeper, corroborated this testimony . It is not contradict- ed by any other witness. As a unilateral change in the most direct condition of employment, it was a perfect unfair labor practice by the Respondent. I find that by 575 failing to pay those raises, as called by the contract still in effect, the Respondent violated Section 8(a)(5) of the Act, as alleged in the complaint. Arlene Deel testified she is the vice president of the Respondent and runs the entire business herself-signing checks, hiring and firing employees , and making the major decisions. She candidly admitted that after expira- tion of the contract, but before the strike started, she did discontinue paying for holidays, birthdays, vacations, etc. She also admitted that on 7 November 1984, she asked the Clinchfield Coal Company to stop making payments to the Union's pension fund on behalf of the Respond- ent's employees. The Respondent mines coal for the Clinchfield Company, operating mines owned by the latter company. When Clinchfield paid White Oak for such work performed, it always deducted from the check what payments White Oak was contractually obligated to pay to the Union on behalf of its employees. The pen- sion payments were in fact discontinued at that time. Deel's explanation for her action was that she did what she did because "the contract was pending," she was not "certain" what contract provisions applied. This was her way of saying that because the parties were ne- gotiating towards a new contract, and it was not certain what the future contract agreement would be, she was free to ignore the conditions of employment then in ex- istence. It was not a good defense to the unilateral changes being made in the established conditions of em- ployment. When a contract expires, the employees who continue to work as before are entitled to all the eco- nomic benefits they have been enjoying until such time as the parties agree to change them .' The Respondent's admitted discontinuance of such things as holiday pay, pension benefits, vacation time, are therefore clear viola- tions of Section 8(a)(5) of the Act, and I so find. Coleman was one of the men who was not paid the holiday benefit. At that time Clement O'Quinn, who died shortly thereafter, was the union steward on the job. The record shows he tried to file a grievance on Coleman's behalf as the contract provided, but that management re- fused to accept it. Arlene Deel's prehearing affidavit re- lates the incident. She wrote "O'Quinn ... came to talk to me about Coleman's birthday. He had some envelope in his pocket. I told him I didn't even want to see it and repeated what I'd said earlier about birthdays and the ex- pired contract." Later Coleman was discharged on 3 De- cember. He told Kenneth Holbrook about it; Holbrook is a union field representative and had Coleman file a panel form concerning the discharge which he gave to man- agement. A few days later Holbrook talked to Jack Head, an agent of the Respondent and its main spokes- man at the bargaining sessions, and "asked him to set up a meeting with the Company so we could sit down and talk about this." Head answered he would have to check with the Company and, a day or so later, Holbrook again asked Head what did he intend to do about the Coleman problem . Head's response, according to Hol- brook's testimony, was "he told me that they were in the ' Meharry Medical College, 236 NLRB 1396 (1978), NLRB v. Katz, 369 U S. 736 (1962) 576 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD process of negotiations , there was no grievance proce- dure." Other than admitting the Respondent had re- ceived Coleman's "panel form," Head did not contradict any of Holbrook's testimony. I find that by refusing to accept and process the two Coleman grievances the Respondent violated Section 8(a)(5) of the Act. B. The Discharge of Douglas Coleman The discharge of this man presents an interesting ques- tion. He was absent from work on Friday, 30 November. Arlene Deel said she fired him for being absent 2 days, 30 November and 1 December, but for the moment let us ignore 1 December. For a short time Coleman had been a union committeeman , but not noticeably active. He admitted that because of the absence of forms in his hands he really did nothing openly in that capacity. In fact, Deel testified she did not even know about his com- mitteeman status. I have no reason not to believe her. There was at the time also a second committeeman among the only 10 or 12 employees altogether. The main thrust of the argument that he was not fired for being absent that one day is that the Company had at times ex- cused a single day's absence from work by other employ- ees. And it is true others had just not shown up for work at times for a single day and not been disciplined for it. The contract then in effect even provided that a 1-day "unexcused" absence would not be reason for discharge. But there is a significant difference between Coleman's failure to appear for work as scheduled on 30 November and the absence of all the other men mentioned in the record. On Wednesday or Thursday of that week, one of the employees on the job died as a result of an accident. On Thursday evening, when the men were gathered off the Respondent's premises and talked about that , they all decided to take the next day off in memory of the de- ceased. When Deel learned of that planned mass absence that same evening, she telephoned every one of the men at home and told them work was very important the next day and insisted they come to work. Dale Viars, one of the men, told her he had to go to the dentist and she let him do that. He did, and when he returned to work he brought the dentist's certificate with him to jus- tify his absence. All the others obeyed the employer's telephone order to come to work that day, all, that is, except Coleman . His own testimony of his conversation with Deel on the telephone tells the whole story and is enough to dispose of his case. Deel called him Thursday night: "Q. What did she say when she called? A. She said there would be work on Friday and if anyone wasn't there, she'd replace them . Anyone that wasn't there would be replaced . Q. What did you tell her? A. I told her I wouldn't be there." Again, from Coleman's testimony: "Q. Had she not told you Thursday night when she called you that you were going to be fired if you were not there Friday? A. Yes." Deel added to this by testifying that during the conversation Coleman told her he was not going to work because he was going to go hunting. In fact he did that, both Friday and Satur- day. I certainly believed Deel's version of the conversa- tion. Is an "unexcused" and unannounced absence the same as a deliberate, face-to-face flouting of the Employer's direct order to report to work on a regularly scheduled day? I think not.2 Nor does the fact that the contract terms, still in effect, although the contract had expired, provided that a man could be fired for a 2-day absence, dictate otherwise. The contract also provides for "unex- cused" absences, and certainly can be read as meaning that for one such absence a man cannot be discharged. But I do not read that provision as permitting an em- ployee to ignore a direct instruction, given in advance of the absence, to work when necessary . I read it as excus- ing unexpected, unannounced, and surprise absences of less than 2 days. It is the employer, correctly called the supervisor in the statute, who has the power to decide when work shall be performed. So long as he acts within the ambit of the agreed-upon conditions of employ- ment-this is what a collective-bargaining agreement is all about-he cannot be disregarded , or overridden, by a single employee. And that all the employees well under- stood this basic principle is further shown by the fact that all the others-when Deel telephoned them that night-quickly gave up their decision to just take a day off and came to work as ordered. If Coleman believed he had a right to ignore a proper order to work so he could go hunting, he was just plain wrong . And the fact he had been a very minor union committeeman , even admit- ting he did nothing noticeable in that capacity, does not help his position now. Union activity, even were it known to the employer, is not license to ignore a work order in the place of employment. The clearest reality shown on this direct testimony- both that of Coleman and Mrs . Deel-is that she had ab- solutely decided , while talking to him that Thursday night, that if he did not show up the next morning he would never work for this Company again. Not only be- cause she told him so in so many words, but because that is the only rational way of reading what the two said to one another. And when he showed up Monday morning that is exactly what she told him. In Coleman's words: "She told me she was laying me off and replacing me for my actions on Friday." In her prehearing affidavit, dated 2 months after the discharge, and at the hearing, Deel said she fired the man for being absent 2 days, not only one-Friday and Saturday. She explained that because of the confusion on Friday, with two men absent and the principal cutting machine operator having died , work did not go well, and that she therefore decided to have the men work Satur- day also. She had done this before . When work is sched- uled for a Saturday a notice is posted a day or two earli- er, listing the names of the men required to come in. She testified such a notice was posted that Saturday, and she brought it to the hearing to prove the fact. There is con- flicting testimony about its posting, four employees saying they did not see a notice that day and Jerry Deel corroborating his wife. With the notice itself, dated 28 November, in evidence from the Company's records, and 2 N.Y. Chinatown Senior Citizens Coalition, 239 NLRB 614, 617 fn. 1 (1978). WHITE OAK COAL CO. with the relevant fact that in my considered judgment the employees who testified were generally much less credible on this record than the defense witnesses, I do believe the notice was posted. While I do believe that during Friday Deel did have Saturday work in mind for all the employees, it is still a fact that before the work was finished on Friday she had changed her mind and decided not to have anyone in on Saturday at all. She admitted candidly that the men were told Friday that all Saturday work was off. Since Cole- man was not there-having gone hunting instead-he could not have known of the temporarily scheduled Sat- urday work. To say, therefore, that he was absent from work Saturday is clearly wrong . And yet, I can under- stand the Deels coming up with that additional reason for the discharge 2 months later . By that time the charge saying Coleman had been discharged improperly had been filed and she was sitting in her lawyer's office when giving the affidavit. She knew she had not discharged others because of a single day's "unexcused" absence, and she knew, with her lawyer examining the papers- including the contract in effect at the time of the dis- charge-that the written agreement permitted discharge for 2 days' absence. After all, that happened between the beginning of December 1984 and the time she gave her affidavit on 25 February 1985, about 3 months later-vi- olence on the picket line, local court litigation for an in- junction to stop it, and picketing still going on-it was to be expected she would add additional reasons why she had to get rid of that man permanently . I am convinced the idea of defending on the ground of a 2-day instead of a 1-day absence was an afterthought . Whatever else this record may show, it is a fact Coleman was a skilled cut- ting machine operator; O'Quinn, the man who had died, was the more experienced operator of that machine; Coleman was therefore very much missed that critical Friday. Had Coleman been at work and been told about the planned Saturday work, it may well be Deel would have gone ahead with it, as she had scheduled. The issue of this discharge must be decided on the basis of what happened when it happened, not upon ideas that were first articulated months later. As to that there is no question. He expressed his complete affront to the owner's proper instruction, he was told he would be fired if he persisted, and in fact when discharged it was for that same stated reason . If Deel was doubtful wheth- er she had exercised a proper management right that day, I can understand her concern, given the temper of the times. And whether or not she told him she thought him a troublemaker in the past, makes no difference. Nothing can "excuse" the sort of indifference to manage- ment rights Coleman took upon himself that day. Quot- ing from the Board 's decision in Mate Holt Co., 161 NLRB 1606, 1612 (1966): The mere fact that an employer may decide to ter- minate an employee because he engages in unwel- come concerted activities does not, of itself, estab- lish the unlawfulness of a subsequent discharge. If an employee provides an employer with a sufficient cause for his dismissal by engaging in conduct for which he would have been terminated in any event, 577 and the employer discharges him for that reason, the circumstances that the employer welcomed the opportunity to discharge does not make it discrimi- natory and therefore unlawful. I find the General Counsel has not proved a violation of Section 8(a)(3) in the discharge of this man. C. Was it an Unfair Labor Practice Strike? The first charge in this case , filed in November 1984, accuses the Respondent of violating Section 8(a)(5) of the Act in a number of unilateral actions, all of which altered the conditions of employment in total disregard of the existing, established benefits being enjoyed by the employees. A number of those alleged violations are listed in the complaint, and have already been found to have been proved as correct, supported by the evidence. That charge also accused the Company of having com- mitted other similar violations of the Act, which have not been included in this complaint. The defense contention that the Union called the strike for economic reasons and not because of the unfair labor practices committed by the Company rests upon several facts appearing in the record. The first is that at the start of the strike the pickets carried signs saying "No Con- tract No Work." And it is a fact such placards were car- ried on the picket line in the beginning . The second is that the decision to call the strike was made in the office of the Union's International president, pursuant to a newly established system within the Union which pro- vides for what are called "selective strikes." The argu- ment here is that the word "selective" logically means selecting one out of many like situations . In this instance, the contention is that because there were other compa- nies also bargaining for a new contract , the International chose this one company-also bargaining for renewal- rather than strike all the Companies simultaneously, and causing undue hardship on too many union members. When the officers of District 28, in charge of this par- ticular company's employees , asked the International president for permission to strike, they received the fol- lowing authorization: Under authority in Article 19, Section 7 of the International Constitution, I hereby call a selective strike at the following companies and/or mines under your jurisdiction effective 12/01 a.m. Decem- ber 1, 1984. White Oak Coal Company, District 28, L.U. 7170 is a selective strike target. Officers of the International Union testified that some time ago the Union set up a new policy . Whereas in the past strikes used to be called against many employers at the same time, it was decided to have selective strikes, to strike only some companies because being out of work caused too great a hardship on its striking members. And to compensate the striking members it was decided that all union members covered by collective-bargaining agreements would contribute 2 percent of their earnings to a common fund within the Union , the money to be paid as partial benefits to the members who might be on strike. This, so that the economic pain of striking would 578 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD fall on all members alike . In fact, the National Bitumi- nous Coal Wage Agreement, by which this Respondent was bound until 30 September 1984, itself provided for such contributions from the employees ' pay to be sent by the Respondent to the International Union's strike fund. The Union's witnesses also testified , and there was no contradiction, that the new system was not limited to strikes that might take place merely to compel any com- pany to sign a new agreement . Nowhere does such a lim- itation on the concept of a "selective " strike appear in writing. With all members of the Union, no matter what company employed them, being obligated to support any strike out of their own pay-even if their own employer was not in dispute with the Union, it was logical to limit the authority of any particular district, or local, to decide by itself whether or not to strike. As to the signs carried by the pickets the testimony of the many witnesses is again very confused . Clearly, be- cause photos were placed in evidence, in the beginning there were placards indicating the purpose of the strike was to compel the Company to come to terms with the Union's contract demands. A photo received in evidence shows four pickets, each carrying a sign. One reads : "White Oak On Contract Strike-No Contract-No Work." The other three signs complain generally of the Company , but not one of them even hints at the idea of any unfair labor practice having been committed . In a total striking complement of less than 10 employees there can be no doubt this was all the pickets were carrying that day. With time-1 week? 2 weeks? It is impossible to tell on this very confusing tes- timony by the many witnesses-additional signs were carried. Admittedly the new ones charged the Company was unfairness to Coleman, with having refused to pay established benefits in employment, etc. Taken altogether the signs carried by the pickets cannot serve to prove a single purpose in the picketing- economic objective. They cut in two directions-demand for a contract and objection to the unfair labor practices already committed by the Respondent-at least in the opinion of the Union. Given the fact that both kinds of picket signs were used, some clearly indicating an intent to force the Com- pany to come to terms and others indicating just as clear- ly resentment against unfair labor practices committed before the start of the strike, I think on this entire record it can only be said the strike had a dual objective-to get a new contract and to force the Company to stop its unfair labor practices. There is unending testimony, by officers of the International Union , by officers of the Local District Council, and by the employees them- selves, about talking that went on among the union people before the strike as to what the purpose was. It is, of course, all self-serving. There was a meeting of the employees of the union hall on the evening of 9 Decem- ber, the day before the strike was called. One witness after another who was present kept repeating that it was decided to strike because the Company had discontinued holiday pay, not paid for other benefits, had illegally fired Coleman, etc. It was to be expected, long after the events, and now that the issue as to the nature of the strike had become important, that all these witnesses would keep repeating that story. But there is also testi- mony by some of the employees present at that meeting strongly indicating that the only purpose articulated by the officer running the meeting was to force a contract on the Company There are other pertinent facts which also point to a finding that the object of the strike was twofold. The parties met three times before, and only once after the strike. There is no evidence that after the strike started the Company refused to meet and negotiate as requested by the Union. This fact alone lends support to the idea that the Union's technique towards achieving some kind of a contract renewal was via the strike route. But an equally important reality , in my considered judgment, is that the week before the strike the Union had filed an unfair labor practice charge against the Company listing verbatim the very reasons articulated by the many wit- nesses as the real reason for the strike . The Union would hardly be indifferent to its own formal charge of wrong- doing against the Company. It is enough that one pur- pose of the strike was protest against the Employer's ad- mitted unfair labor practice for a finding, which I make, that when the strike started it was in fact an unfair labor practice strike. D. Section 8(a)(1) Violations Alleged When the men held their union meeting on the evening of 9 December and decided to strike, Arlene Dee] learned about it. The next day she talked to a number of the employees. There is conflicting testimony as to just what phrases she used in asking was it true they were not going to work. According to employee Sykes, Deel told them, "we all knowed that we had the right to strike; she had the right to work and if we come out the next day, we could have our job back or we would all be fired. Q. Do you recall her saying anything else? A. I believe she said `fired and replaced.' Q. Pardon? A. `fired and replaced."' On his cross-examina- tion came the following: "Q. You said that when Arlene talked to you the first day of the strike on the picket line, she had the right to work and if you all didn't work, you would be replaced? A. Yes, sir." Again, on re- direct: "Q. Besides saying that you guys would be re- placed if you guys did not return to work, did Arlene Deel say anything else? A. I can't remember. She stayed there for a while but I don't remember what all was said." Tony Deel, another striker, testified that when Deel asked him to "what was going on," and he answered it was going to be a strike and he would honor the picket line, she told him "anyone who didn't show up for work the next day would be fired." Still another employee, Richard Kiser, testified about being asked by Mrs. Deel that first day of the strike whether or not he was going to come to work. His story conforms with that of Sykes: "She told us if we wanted to return to work the follow- ing day that we could still have our job and if we didn't, were to be fired and replaced." Mrs. Deel denied having voiced any threat to dis- charge anyone of the strikers. Surprised at the sudden strike decision, she must have spoken of "replacement," WHITE OAK COAL CO. 579 as both Sykes and Kiser admitted . She had no reason to speak of both discharge and replacement . Jack Head, the official of a coal operator association of which this Re- spondent is a member, was also present at the mine when Arlene Deel was asking the employees about the possible strike action. He quoted her as telling them all "we real- ize that you all have the right to strike but you have got to realize that I have to work and I have the right to get other people to go to work. If you are at the mine in the morning ready to go to work, we will forget about it and you can go to work but if you are not, I will have to replace you." I do not credit the three employee witnesses on this point, and I credit Arlene Deel instead . I therefore make no finding of illegal threat by her then to these employ- ees. E. Refusal to Reinstate Violence on the Picket Line We come to the truly substantive issue of the case. On 4 April 1985 the Union wrote a letter to the Company offering to abandon the strike and return all the strikers to work. The Respondent refused to take any of them back then . An implied defense, consistent with the basic assertion that it was always an economic strike, is, of course, that the strikers had all been replaced. And it is true the Company had by that time resumed operations and did have employees at work . Whether all the jobs were filled or not is not quite clear on the record. It is also true that the economic strike defense is not without some persuasion, for there is much evidence that during the first week of the strike its object was to force a con- tract on the Company. The question is a very close one, and I could very well be wrong in my contrary finding. Could a strike which has two objectives-to compel agreement with the Union's economic demands and to protest the commission of unfair labor practices-and still be held to have been caused by the unfair labor practices under the statute? I think so! Cf. NLRB v. Crys- tal Springs Shirt Corp., 637 F.2d 399 (5th Cir. 1981). In any event that question is not really important, in the light of the Respondent's more realistic defense of its refusal to take back any of the strikers. It offered evi- dence, and very convincing evidence, that during the first month or two of the strike there was such violence and misconduct on the picket line-by the strikers ac- companied by their union officers-that the Company was completely justified under Board law in refusal to reinstate any of them regardless of what kind of strike it was. There is a straight question of credibility. The Compa- ny's witnesses testified, clearly and consistently , that they saw the strikers each and every one of them throw rocks at strikebreakers' cars and company cars passing the picket line, placed countless very large nails on the access road to the mine to damage cars of the Company passing through, and engaged in very large mass picket- ing of the premises . Against all of this the General Coun- sel offered simple and direct denial of all wrongdoing by a number of witnesses, most of them the strikers them- selves. The denials were so straight-without a single ad- mission of the smallest act of roughhouse by any of the defense witnesses, that a partial finding of misconduct is impossible . It is a matter of completely crediting one group against the other, and that is it. Compared to other record transcripts presenting conflicts in witnesses' testimony, this is a very easy one to decide . I credit the Respondent's witnesses against the Union's denials. The mine property where these 9 or 10 people worked is in an isolated place in the mountains , sometimes called "The end of the world." A private road, about 3 miles long, leads from the mine to a public state road . It was at the junction of two of these two passageways that the picketing always took place. Jerry Deel, the president of the Company, testified that during the first weeks of the picketing he saw as many as 50 pickets at a time standing along the narrow private road. He continued that they threw large nails and rocks at the cars passing by, that the replacement employees refused to come to work in their own cars because they were suffering too many flat tires as a result of the violence and that the Company agents therefore took to driving them in and out of the mine location each day in company-owned vehicles. The Company uses large trucks, each with many wheels, to transport the coal out of the mine . Deel said the Compa- ny suffered many, many flat tires because of the great number of nails filling the roadway , and that the bills for constant fixing and replacing of tires was very great. In his testimony this witness identified individually six of the striking employees named in the complaint as persons he actually saw throwing rocks and nails at the people trying to pass by-Tony Deel, Coleman, Danny Deel, Leslie Charles, Carl Sykes, and Bernard Viars. The nails thrown by the pickets into the road , sometimes called "jack-rocks," were strong , heavy steel wires so entangled that no matter how they rested on the ground at least one sharp pointed arrow aimed upward . The steel was purposefully so welded together that any tire that passed over it was bound to be punctured. George Fuller, Arlene Deel's brother, not an employ- ee of the Company, said he took to driving his sister to work in his own car because of the danger to her from the violence on the picket line . He said he saw as many as 30 pickets at a time on the roadway, and nails and rocks on the road where he had to drive through. This witness added he sometimes stopped to pick up the nails to clear the road . Fuller's testimony is that he personally saw Tony Deel, Leslie Charles, and Richard Kiser, an- other striker named in the complaint, throw the large nails into the road. The witness added that the Company car he drove was actually hit by rocks thrown by the pickets. On cross-examination the General Counsel asked Fuller was it not he who had thrown the "jack rocks" nails into the road? The answer was that the witness had picked some of them up and put them in his car as he was driving through. With the Company having had to pay so much for tire repair and replacement during that period, as shown by one of the exhibits, how can I not believe this man? This throwing of "jack rocks" into the road was also testified to by one of the strike replace- ments, Ricky Yates, who added they had to change tires 580 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD several times each day . Yates, too, recalled seeing as many as 30 pickets at a time, as late as January. Woodrow Bowman and Eddie Matherly were also strike replacements, and gave testimony supportive of that of Fuller and Jerry Deel. They both said they saw the pickets throw rocks at passing cars, placing those large nails on the road , and causing many flat tires which they had to keep fixing . Both these witnesses admitted that when there was a policeman in the vicinity the rock throwing ceased . But there is other evidence showing quite clearly that patrolmen, or troopers, were there very rarely. Laren Bradford works for a trucking company which hauls coal away from this mine for the Respondent. He too testified that his trucks had flat tires a number of times because of the nails the pickets placed on the pas- sage road. He said that in a single day they had to remove as many as 60 nails from their truck tires. Brad- ford added that when he once told a trooper about it, the officer replied he was "tired of running in and out." He admitted not telling the police formally what it was all about because the place is far in the country and rarely were there policemen in the area. Finally, there is the testimony of Arlene Deel, the over-the-top management, who was driven in and out of the mine location every day. She spoke of the pickets re- peatedly placing nails in the roadway , throwing rocks and sticks at passing cars causing damage, the breaking of a windshield, the placement of logs, brushes, and leaves across the road to block passage, etc . She added the pickets deliberately stood so close to the passing cars as to make it dangerous for them to proceed . She also identified the pickets so acting as Tony Deel, Coleman, Carl Sykes, Richard Kiser, and Dean Deel . Arlene Deel also said she told the policeman a number of times about this but that nothing came of it. To support her testimony the witness then offered sev- eral exhibits into evidence. Some are photos of damaged cars belonging to the Company, and they do show some damage. More important, there are bills paid for by the Respondent for repair and replacement of tires on its ve- hicles. Mrs. Deel said they are regularly maintaining company records, and that they reveal paid -for damage caused by the nails on the picket line which she de- scribed. One bill from a recapping company, the amount of $1797, is dated 12 January 1985. Another, dated 27 December 1984, is from Sears, and seems to be for $403. There were also placed into evidence copies of insurance claims sent to the Respondent's insurance company, dated later in 1985, also seemingly related to the same losses previously billed to the Company . While docu- ments of this kind cannot serve to prove the conduct charged to the pickets by the Company, they tend, how- ever indirectly, to support the straight and clear testimo- ny of the witnesses. Apart from the matter of demeanor or the rational probabilities based on human experience , there is another element in this total record which also points in the di- rection of my credibility finding . When the striker wit- nesses contradict one another of necessity someone is lying on the witness stand. Danny Deel testified as clear- ly as can be that he saw Coleman help dig the grave for the dead man on the critical Friday, but Coleman, as a witness himself, defended his position on the ground that he had a right to go deer hunting which he did that day. One of the two had to be lying. Kennedy, the union offi- cial, was the principal speaker at the 9 December 1984 meeting, where the employees were informed that a se- lective strike had been authorized to start immediately. One witness after another testified that Kennedy de- tailed, as reasons for the strike , the Company's failure to pay for holidays, to continue giving birthday pay, to accept grievances pursuant to the contract , etc. But from the direct testimony of Sykes came the following: Q. Did you attend a union meeting on December ninth? A. Yes, sir. Q. Which union officials talked at that meeting? A. John Kennedy, Jerry Smith-that's about the only ones I can remember. Q. What did they talk to you about? A. They just told us that we got a telegram that we was drawed out on strike. Q. Did they give any reasons? A. For firing Doug Coleman and not signing a contract. Q. Do you recall them saying anything else to you about the reason for the strike? A. No. Q. How long did the meeting last? A. I say about an hour or hour and a half. Were all of the other witnesses lying at the hearing? How can I tell? But of one thing I am sure; all of them cannot be believed. Danny Deel's testimony is also inconsistent with that of his costrikers. From his testimony: Q. I believe you indicated a moment ago that one of the things Mr. Kennedy stated at the December ninth meeting was that they had reached an impasse and White Oak would not bargain? A. Yes, that's one of the reasons. Q. And, Mr. Kennedy also said that as soon as they can get an agreement, that you all could go back to work? A. Yes. Viars started by detailing what was written on the picket signs during the first week of the strike . He said he saw two signs-received in evidence and shown to the witnesses he testified-at the start of the strike, during the "first week." One of those signs reads : "White Oak Unfair To Doug Coleman" and the other reads: "White Oak Unfair-Refuses to Bargain." On 21 Febru- ary 1985, 9 months before the hearing, the witness gave an affidavit which reads as follows: We began the strike on December 10, 1984. I have carried signs, as have the others on strike. We have a sign on a stump at the fork in the road to the mines which says Local 7170 on contract strike with White Oak Coal Company. That sign stays up WHITE OAK COAL CO. 581 everyday. The signs we carry say that White Oak Coal Company refuses to negotiate with the men. These are the only signs we carry. With his oral testimony a year later Viars contradicted his sworn statement given virtually at the time of the events. I cannot believe a word of the witness' testimony at the hearing. There are other inconsistencies in the defense stories, but it is not necessary to repeat them all here. Some of the strikers said they never saw more than 10 or 12 pick- ets on the line at one time; others admitted there were as many as 30 or 40 at a time. A policeman testified for the defense. He said he never saw anyone throw rocks onto the roadway. He may have been telling the truth, for, reading from his precise records, he detailed exactly the amount of time he spent at the picketing site : On 28 De- cember 1984 (this was 2 weeks after the strike started!) 1 hour and 20 minutes starting at 6:30 a .m., and 1 hour and 40 minutes starting at 2 o'clock . He was there again on 31 December at 6:15 a.m. for 1 hour and 10 minutes, on 2 January for 55 minutes at 8:20 a .m., on 3 January for 1 hour and 45 minutes at 8:10 a.m., and for 50 minutes at 2:40 p.m.; and on 10 January only 20 minutes in the afternoon . The testimony of this policeman does not affect my conclusionary finding that the defense wit- nesses were telling the truth. It is to be expected that when a uniformed police officer is on the scene pickets will refrain from violence or misconduct of any kind. By the time the policeman appeared there had already taken place in the local court an injunction proceeding brought by the Respondent, and a judge had already issued a re- straining order. I find that during December and January the strikers so misconducted themselves as to lose all rights to rein- statement thereafter. Every single one of the men named in the complaint as having been wrongly denied rein- statement later in April was individually identified as having personally participated in rock throwing and nail placements. There was mass picketing, as many as 50 pickets at a time in the narrow private road leading only to the mine in question . It was a joint activity by the strikers, their local union officers, and fellow workers from other nearby mines. All the strikers were therefore responsible. About a month after the Union's offer to return the strikers to work, Arlene Del learned that a man was about to quit and she therb5fore had need to hire someone in his place. She decided to try to get one of the strikers to come back. Her testimony is as follows: She tele- phoned Charles and asked would he come back because she needed him. He responded by asking had the con- tract been signed, and when she said no he said he did not need the job because she would be paying him for every day he missed anyway. Next she talked to Cole- man, who was close to her house, and he gave her the same answer-that he did not need the work because he would be paid by her in any event . Next she went to the home of Viars, about a mile away from her home. His response was also had she signed the contract and whether all the men were coming back . When she said she needed only one man, he refused the offer. Deel then started out to go to the home of Kiser, who has no tele- phone. She ran into him on the way, Kiser said no, he did not want to work for her. She then telephoned Danny Deel at his father's house, who responded to her request to come to work by saying that while he needed the work the Union would not let him go back. Dean Deel, whom she also called next, gave the same answer. The last man she spoke to was Carl Sykes; he refused the offer also. Mrs. Deel's sister, Fuller, the company bookkeeper, corroborated her sister's testimony. She said he accompanied her sister when visiting the strikers, and heard her talk with the others on the telephone. Recalled in surrebuttal after Mrs. Deel had given her foregoing testimony, each one of the strikers said he had not been offered a job in April and denied receiving any communication from the "boss-lady." For reasons al- ready stated I do not credit them against Mrs. Deel and her sister. The question is academic anyway, because they had already lost all right to reinstatement in conse- quence of the picket line misconduct. This last conflict in testimony-were these seven strik- ers offered a job in April?-became the basis for a con- tention both in the General Counsel's and the Union's brief which I can only describe as fantasy. They argue that because Arlene Deel offered reinstatement to all seven strikers after their misconduct on the picket line it follows that in her heart she had condoned their misbe- havior, and that therefore they are now entitled to rein- statement under Board law without regard to their earli- er misbehavior. Are the lawyers now saying that these seven employees lied on the witness stand when they denied the rock throwing, the nails in the roadway, the mass picketing, that there really was misconduct for Mrs. Deel to condone later? More likely, and of necessity, they are saying all seven of the men lied when denying the April offer of reinstatement. Whichever way I look at it, the assertion that Mrs. Deel condoned the misbe- havior is as a minimum admission that the employees' witnesses were not to be believed. While there can be no coherent response to irrational arguments, this final posi- tion both of the General Counsel and the Union does serve to discredit even more their entire claims with re- spect to what happened on the picket line. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, have a close, intimate and substan- tial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burden- ing and obstructing commerce and the free flow of com- merce. THE REMEDY Before the strike violence and misbehavior which dis- posed of a major issue of this case, there did occur sever- al minor unfair labor practices which the Respondent must be ordered to correct. While the employees were still at work before the strike the Company denied them certain raises as provided for in the union contract 582 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD before its expiration, and also denied them, after the ex- piration of the contract , other direct money benefits in the established conditions of employment-holiday pay, vacation pay, birthday pay, and contributions to their pension fund. The Company must now be ordered to make every man then at work whole for any such money benefits denied them up to the day of the strike- 10 December 1984. While the record does not show ex- actly what holidays fell between 30 September and 10 December, what precise birthday benefits were denied, what vacations earned , those matters can be ascertained in the compliance stage of this proceeding by examining the Respondent's records in the light of the precise lan- guage of the expired contract . As to the employees' pen- sion payment rights-while they were still at work-it is clear they were discontinued on 7 November, but there is also indication that some months later the Respondent ordered the Clinchfield Coal Company to make those payments. Whatever the case, the usual investigation will decide those matters with finality. This record does not support the General Counsel's contention that the Respondent must be ordered to rec- ognize the Union now as representative of its old strikers and bargain affirmatively with it. The complaint alleges that the refusal to bargain, literally, first took place on 13 December, 3 days after the strike started. The parties met that day in the hope of coming to terms and getting the people back to work quickly, but tempers were hot. A spirit of animosity understandably pervaded the meet- ing. There are four separate paragraphs in the complaint, each alleging a separate violation of Section 8(a)(5) of the Act, but in reality each referring to no more than a heated expression of resentment voiced by the company representatives against the Union's adamant position, as simultaneously shown by what was going on at the picket line. The meeting broke up with heated words thrown back and forth from each side. The Union did not request bargaining again until 3 January. By that time the court injunction against mass picketing and violence had been issued on 27 December. On 9 January, after a hearing, the state court judge even made an oral finding of criminal contempt against the strikers because of their continued violence . In the light of these things happening , it is not surprising that the Company's response to the Union's 3 January letter was that the parties were at an "impasse," and that talking would be futile . Is an employer obligated to meet re- spectfully with a union which at the very moment is car- rying on in such fashion? Nevertheless, by letter dated 12 March, the Company offered to meet with the Union again and to talk things over. The Union did not answer for 3 weeks, when, on 4 April, it proposed meeting a month later on 30 April. At the same time, it offered to abandon the strike and return all the strikers to work. The parties never did meet until 12 June . By this time the Union had filed another charge, on 21 May, saying the Company had acted illegally in failing to reinstate the strikers , and, of course, the Com- pany was of the view that it was not obligated to take them back because of their strike violence. When Kennedy, the District 28 official , and Vergara, the Union's lawyer, appeared at the meeting on 12 June, they were accompanied by the eight strikers. The two company representatives said those people could not par- ticipate in the negotiations, saying they were no longer employees of the Company. The Union said they were, and insisted upon their being present during the negotia- tions. There developed an "impasse," if I may use that word, over that dispute. The argument continued for hours-with recesses and meetings resumed. At one point the union agents said if not as employees the men had a right to remain as no more than observers . In the end, after all the "verbal fencing . . . the session eventually broke up over that issue," in the words of the General Counsel's brief. What the Union was demanding of the Respondent that day was that it indirectly concede the merits of the pending charge-to wit, that the refusal to reinstate the strikers was an unfair labor practice . Absent that conces- sion, it refused the Respondent's request for collective bargaining. It never gave up on its insistence that the strikers had a right to be present. There would be no jus- tification in issuing an affirmative bargaining order now. CONCLUSIONS OF LAW 1. By failing to pay wage increases called for in the collective-bargaining in effect, and by failing to pay holi- day, birthday, vacation, and pension contribution benefits on behalf of the employees consistent with established conditions of employment after expiration of that con- tract, the Respondent has violated Section 8(a)(5) and (1) of the Act. 2. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. [Recommended Order omitted from publication.]