Inta-Roto, Inc.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Inta-Rot, Incorporated and Local Union No. 10, International Association of Machinists and Aerospace Workers. Case 5-CA-11576 September 30, 1980 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND PENELLO On June 30, 1980, Administrative Law Judge Benjamin Schlesinger issued the attached Decision in this proceeding. Thereafter, the General Coun- sel, Respondent, and Charging Party filed excep- tions and a supporting brief, and General Counsel, Respondent, and Charging Party each filed answer- ing briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs' and has decided to affirm the rulings, find- ings, and conclusions2 of the Administrative Law Judge 3 and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Inta-Roto In- corporated, Henrico County, Virginia, its officers, agents, successors, and assigns, shall take the action set forth in said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. I Respondent's request for oral argument is hereby denied because the record, the exceptions and the briefs adequately present the issues and positions of the parties. 2 In accordance with his dissent in Olympic Medical Corporation. 250 NLRB 146 (1980), Member Jenkins would award interest on backpay due based on the formula set forth therein. Chairman Fanning and Member Jenkins, for the reasons set forth in their partial dissent in Drug Package Company, Inc., 228 NLRB 108 (1977), would usually begin the Respondent's backpay obligation from the date of each unfair labor practice striker's unconditional offer to return to work. However, inasmuch as Drug Package Company represents the current Board law on this issue, they consider themselves institution- ally bound by the remedy given by the Administrative Law Judge 3 For the reasons set forth in his dissenting opinion in Abilities and Goodwill, Inc.. 241 NLRB 27 (1979), Member Penello would require that the employees who were unlawfuly discharged while on strike must indi- cate abandonment of the strike and a willingness to return to work in order to initiate the running of the backpay eligibility period 252 NLRB No. 111 APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government After a hearing at which all sides had an opportu- nity to present evidence and state their positions, the National Labor Relations Board found that we have violated the National Labor Relations Act, as amended, and has ordered us to post this notice. WE WILL NOT threaten our employees with permanent replacement or elimination of jobs, or other reprisals, for engaging in an unfair labor practice strike or other protected and concerted and union activities. WE WILL NOT discharge our employees by eliminating their jobs for engaging in an unfair labor practice strike or other protected and concerted and union activities. WE WILL NOT refuse to bargain in good faith with Local Union No. 10, International Association of Machinists and Aerospace Workers, by unilaterally instituting wage in- creases and increases of shift differentials, or changing any term or condition of employ- ment, without notifying, consulting, and bar- gaining with the Union as the exclusive repre- sentative of our employees in the appropriate unit. WE WILL NOT refuse to bargain in good faith with the Union by conditioning bargain- ing upon the Union's agreement to bargain over terms and conditions of employment other than wage rates, as provided in the re- opener clause of our collective-bargaining agreement, prior to the parties having reached an impasse. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employ- ees in the exercise of the rights guaranteed in Section 7 of the Act. WE WILL, upon request of the Union, bar- gain collectively with it as the exclusive repre- sentative of all of our production and mainte- nance employees in the mill roll and machine divisions and certain production and mainte- nance employees in the engraving and roll di- vision at our plant in Henrico County, Virgin- ia, but excluding supervisory, clerical employ- ees, and engineering personnel, with respect to wages as provided in the collective-bargaining agreement between us and the Union in the re- opener provision thereof, and, if an under- 764 INTA-ROTO, INCORPORATED standing is reached, embody such understand- ing in a signed agreement. WE WIl.L., upon request of the Union, re- scind our unilateral increases of wages, premi- ums to working foremen, and shift differen- tials. WE WILL offer M. P. Bowery, M. W. Jewell, R. S. Maxey, and H. S. Reszies and such other employees, if any, whose jobs were eliminated as a result of said employees having engaged in an unfair labor practice strike com- mencing on or about October 5, 1979, immedi- ate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantial- ly equivalent positions, without prejudice to their seniority and other rights and privileges previously enjoyed, dismissing, if necessary, replacement employees, and make them whole for any loss of earnings suffered by reason of the discrimination against them, with interest. WE WIll., upon their unconditional offer to return to work, reinstate the unfair labor prac- tice strikers, dismissing, if necessary, any re- placements hired in their place, and, if we do not reinstate the striking employees within 5 days from the date reinstatement is requested, backpay with interest shall begin running from the date on which 5 days expire. INTA-ROTO, INCORPORATED DECISION BENJAMIN SCHESINGER, Administrative Law Judge: This proceeding was heard before me on April 21 and 22, 1980, in Richmond, Virginia, pursuant to a complaint and notice of hearing issued by the Regional Director for Region 5, on November 23, 1979, alleging that Inta- Roto, Incorporated (herein called Respondent), unilater- ally, and without bargaining to impasse with the Char- ginq Party, Local Union No. 10, International Associ- ation of Machinists and Aerospace Workers (herein called the Union), established a higher wage rate for em- ployees, thereafter unilaterally terminated its subsisting collective-bargaining agreement, illegally conditioned bargaining on items not permitted by the agreement's re- opener clause, and permanently replaced certain of its employees who were engaging in an unfair labor practice strike. Respondent denied that it violated the Act in any way. Upon consideration of the record in this proceeding, including the briefs filed by the General Counsel, Re- spondent, and the Union, and my observation of the de- meanor of the witnesses, I hereby make the following: FINDINGS O: FACT I. JURISI)ICTION AND COIlECTIVE-BARGAINING AGREEMEN r Respondent is a Virginia corporation engaged in the manufacture of press machines and the engraving of cyl- inders at its Henrico County, Virginia, facility. During the 12 months preceding the issuance of the complaint, a representative period, Respondent purchased and re- ceived materials and supplies valued in excess of $50,000 directly fiom points located outside the Commonwealth of Virginia. I conclude, as Respondent admits, that at all times material herein Respondent is and has been an em- ployer engaged in commerce and in operations affecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. I further find and conclude, as Respondent admits, that the Union is and has been at all times a labor organiza- tion within the meaning of Section 2(5) of the Act. Re- spondent and the Union have had a long history of ami- cable labor relations, having been parties to consecutive 3-year collective-bargaining agreements since at least 1947, in which the Union has been recognized as the ex- clusive collective-bargaining representative of Respond- ent's production and maintenance employees in the mill roll and machine divisions and certain production and maintenance employees in the engraving and roll divi- sions at Respondent's plant in Henrico County, Virginia, but excluding supervisory, clerical employees, and engi- neering personnel. The latest collective-bargaininq agreement contains the following article XIX, the meaning of which gives rise to an essential dispute in this proceeding: This Agreement shall be in full force and effect from the Ist day of October, 1977, until the 30th day of September 1980, and thereafter from year to year, unless either party shall give the other party sixty (60) days' written notice prior to September 30, 1980, or sixty (60) days' written notice prior to October st in any year of the extension hereof, of its desire to modify or terminate the Agreement. Either party may reopen the Agreement for the consideration of wage rates only on October 1, 1979 by giving to the other party sixty (60) days notice of an intention so to reopen. On such reopening, if the parties fail to come to agreement, either party shall have such course of action open to its [sic] as it would have had if this contract were to expire on such reopening date. Invoking the second paragraph of the quoted article, Respondent terminated the agreement on October 5, 1979, when it was unable to reach agreement with the Union on wage rates. Respondent contends that it was entitled to do so; the General Counsel and the Union claim that the termination was premature and in viola- tion of Section 8(a)(5). 765 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. TIHE UNFAIR ABOR PRACTICIS A. The Union Reopens the Contract and Negotiations On July 18, 1979,' the Union notified Respondent, pursuant to the wage reopener provision, that it desired to "negotiate for consideration of wage rates." The parties held four negotiating sessions at which the principal negotiators were William B. Carper, Jr., Re- spondent's secretary-treasurer, and Welford E. Hicks, the Union's business representative. At the first negotiating session, on September 17, the Union proposed an across- the-board pay increase of 15 percent. Respondent re- quested that the proposal be placed in writing, and ad- vised that it would take the proposal under considera- tion. The meeting adjourned, with the next session being scheduled for September 20. At that second negotiating session, Carper opened the meeting, stating that it was Respondent's position that there was an affirmative duty to stay within the Presi- dent's guidelines and controls concerning wage increases and offered a 7-percent increase. Hicks countered that, because the cost of living had increased substantially more than that, his membership would not accept Re- spondent's proposal. It was either at this session, accord- ing to Carper, or at the third session held on September 26, according to Hicks, that there was discussion regar- dinq a "staggered" approach to increases-that a larger increase would be offered to journeymen and a lesser in- crease would be offered to all other job classifications. Again, depending on whose recollection was more accu- rate, Respondent offered a percentage increase of 8-7, 2 at either the September 20 or September 26 session. When the Union rejected that offer, Respondent in- creased its proposal at the September 26 meeting to 9-8- 7, again depending on job classifications. Carper also proposed that merit increases be given to working fore- men, from the present 40 cents per hour to 40-70 cents per hour, and that the shift differential be increased from 40 cents per hour to 60 cents for journeymen machinists and from 35 to 40 cents for others. Hicks responded that the Union would accept an increase of 10-1/2-9-1/2, and rejected the other two items.3 Hicks added that he would call a membership meeting to discuss Respond- ent's proposals. Unlike the first two negotiations, the par- ties did not set a date for another meeting, but instead arranged for Hicks to telephone Carper after the union meeting. The Union held a membership meeting on Thursday, September 27, at which time it rejected Respondent's I All dates refer to the year 1979, unless otherwise stated. 2 The percentage increases will hereafter be referred to solely by number. a Carper testified that Hicks refused to discuss the foremen's increase and shift differential on the ground that neither were "wages," to which the reopener clause was limited. Hicks testified that he was not interested in Respondent's allocation of money to matters other than base wages Although I credit Carper, my disposition of this conflict is unimportant, because it is clear that in any event Respondent's proposal was rejected. In makinq credibility resolutions, I have been guided by N.L.R.B. v Walton Manufacturing Company & Loganville Pants Co., 369 US 404. 408 (1962) Even though I do not credit Hicks on this and certain other mat- ters. I generally credit him as reliable and forlhright N IR.B s Univer- sol Camera Corporation, 179 F 2d 749, 754 (2d Cir 1950). offer of the 9-8-7 increase, and voted to strike on Octo- ber I in the event that no agreement was reached. Hicks telephoned Carper to inform him that the Union's mem- bership had rejected the last offer, and both agreed to meet the following day, Friday, September 28. The events of that session are sharply at issue. Both Hicks and Carper agree that at some point in the meeting Carper was furious with Hicks, who testified that Carper had opened the session by criticizing the Union for not presenting to its membership the prior day a proposal for a 10-1/2-9-1/2 increase, to which Hicks replied that such an increase had never been offered by Respondent. Carper testified that he became angry when Hicks indi- cated that his membership wanted an 11 or 11-1/2 per- cent across-the-board increase, thus "upping the ante," a tactic which Carper, a novice in collective bargainingq, thought was unconscionable. Again, I find Carper's testi- mony more probable, in light of his obvious lack of un- derstanding of ploys which are used in negotiations. The parties are in agreement that the Union refused to discuss increases for working foremen and of shift differentials. According to Hicks, Carper agreed to withdraw those proposals, but in light of the brief history of negotiations, and because I am unpersuaded that there was any reason for Respondent to pull back its proposals, I credit Carp- er's testimony that those proposals were never with- drawn. 4 The testimony regarding the end of that meeting was just as much in dispute as that concerning the beginning. The parties agree that toward the end of the meeting, Carper offered an increase of 10-1/2-8-1/2. I credit Hicks' testimony that the Union countered with 10-1/2- 9-1/2, rather than Carper's testimony that the Union re- jected his proposal outright. Carper further testified that, when he made this offer, he told Hicks that this was the last offer and the most that could be offered-that "there was no more . . ." and that the offer would be put into effect on October 1, if agreement was not reached. Hicks denied that any of this was ever said, and I credit him. In so doing, I am persuaded that Respondent attempt- ed to construct at a later date facts to support its present contention that an impasse was reached in negotiations and that a final offer was placed on the table on Septem- ber 28. Thus, Carper never mentioned in an investigatory affidavit given to a Board agent that there was any final offer or that Respondent would implement it on October 1. However, in an affidavit signed by Carper in a Feder- al court proceeding brought under Section 10(j) of the Act, Carper averred that "the company put its last, best and final offer" on the table on September 28.5 Howev- er, in his investigatory affidavit, Carper admitted: "I never indicated to the union that this was our final offer." 6 It would certainly be an "indication" of finality 4 It is true that Hicks believed in good faith that the proposals were withdrawn, a fact which Carper admitted when he recalled Hicks stating as much at a later negotiating session on October 15. 5 Admittedly, the quoted language was not in quotes in the affidavit: however, that was clearly the impression it sought to convey. f This affidavit was taken by the Board agent in the presence of Re- spondenl's attorney, in support of Respondent's unfair labor practice charge that the Union refused to bargain with Respondent. The affidavit Continued 766 INTA-ROTO. INCORPORATED if Carper were to have stated that the offer would be put into effect on October 1. Finally, I found Carper's de- meanor to be wholly protective of Respondent's position, lacking in candor, and not worthy of belief as to these points. ? For these reasons, I also discredit his testimony that Hicks indicated he would not recommend that the Union agree to Respondent's latest offer, testimony which Hicks credibly denied. At the end of the meeting on September 28, no date was set for further meetings. At midnight on October 1, the Union commenced an economic strike. That morning Hicks called a mediator of the Federal Mediation and Conciliation Service (herein called FMCS) to advise him of the situation. The mediator contacted Carper, stating that he understood that there was a strike and wanting to know what the situation was. The mediator said that he would call Hicks and, that afternoon, Hicks called Carper and asked for a meeting. Carper replied, accord- ing to Hicks, that he did not think Respondent would be in any hurry to meet, and, according to Carper, that Re- spondent was ready and willing to meet, but it was in the process of obtaining legal advice and needed time to do that. That day, Respondent retained Herbert W. Lar- rabee, a labor relations consultant, and met with him after Carper's telephone conversation with Hicks. Effective October 1, Respondent implemented its last offer of a 10-1/2-8-1/2 increase, the shift differential, and the increase for working foremen. On October 5, Carper sent the Union a telegram stating: AS YOU ARI AWARE UNi)ER OUR IABOR AGRHIFt- MENT BETWEEN ODGE #1 01: THE INITERNATIONAI ASSOCIATION OF MACHINISTS AND INTA-ROTO INC. DUE: TO THE STRIKE WHICH W'AS CAI.I.I) BY YOUR UNION OUR LABOR AGREEMENT HAS NOW TERMI- NATED AS PROVIDED IN ARTICI E XIX OF: THE AGREEMLNT. WE WOUI. D IIKE TO CONTINUE NEGO- TIATING WITH YOU AND) WOUI.D SUGGEST YOU CON- TACT US AND ESTABIISH A MEETING DATE SO WE CAN SUBMIT PROPOSAlS TO YOU ON THE NOW TER- MINATED FORMER LABOR AGREEMENT OTHER THAN WAGE IMPROVEMENTS ALREADY PL ACED INTO EFFECT. On the same day, Carper wrote to each "Inta-Roto employee on strike," advising that the last paycheck would be mailed Monday to the employee's home ad- dress; that "[s]ince we are continuing our operations, it will be necessary to hire permanent strike replacements for employees on strike"; that the status of certain em- ployee benefits had been changed because of the strike; was initialed on each page, and various corrections were made to the contents of the affidavit, and initialed by Carper. In addition, before the affidavit was signed, Respondent's attorney reviewed the entire docu- ment. 7 Respondent attempted to support Carper's narration with the testimo- ny of its president, W'illie Fenske, who stated that he gave instructions to Carper during one of several caucuses to make known the finality and the implementation of the offer to the Union Fenske also told Carper to tell the Union that Respondent might consider filing unfair labor practice charges If this were told to Carper, he did not relay the message to Hicks, in the same way, as I have found, that the other instructions were not followed and concluding with the hope "that the strike vill end soon and that you can return to work at an early date." On October 8, Carper telegraphed Hicks, as follows: "This is to advise you that it is now necessary to hire permanent strike replacements at Inta-Roto." However, on the previous day, Sunday, October 7, Respondent had already placed an advertisement in the newspaper of "Permanent Openings Available," setting forth the new wage rates, which became effective the prior Monday, and also indicating "labor dispute in progress." Further, commencing on or about October 9 and continuing to January 14, 1980, Respondent forwarded letters to cer- tain striking employees stating that they had been perma- nently replaced or that their jobs had been "eliminated for business reasons." On October 15, there was a negotiating session held under the auspices of the FMCS. At that meeting, L.arra- bee, then actinq as Respondent's chief negotiator, pre- sented to the Union a one-paqe list of 17 "company con- tract proposals," which consisted of, inter alia, changes to the bargaining unit pension plan, delineated in a sepa- rate three-page attachment; a proposal for a no-strike, no-lockout agreement; changes to provisions regarding distribution of overtime, vacations, base rates of wages, payment of minimums for unscheduled maintenance, fill- ing of vacancies, and seniority; limitation on company contributions for insurance, and reimbursement to Re- spondent of 10 percent of administrative expenses in con- nection with checkoff provisions. In addition, the Octo- ber 15 document ended with the following unnumbered item: "Any additional proposals will be submitted at the next negotiations meeting." Efforts were made by the Union to talk about its last proposal for a wage increase, the settlement of the strike, and the reinstatement of all strikers, with full seniority. Larrabee would have no part of it; he insisted instead on discussing first the items contained in his written propos- al. Negotiations have continued from time to time there- after, but Respondent, having withdrawn many of its proposals, continues to press certain of its nonwage de- mands for discussion and resolution, prior to discussing wages; and the Union has been equally insistent in refu- sinq to negotiate, as long as nonwage proposals are still on the table. As of the dates of the hearing, the Union's strike still continued. B. Concluding Findings and Discussion of the Law 1. Was there an impasse in negotiations? The duty to bargain in good faith, protected under Section 8(a)(5) of the Act, is defined by Section 8(d) as the duty "to meet . . . and confer in good faith with re- spect to wages, hours, and other terms and conditions of employment." All parties agree that "an employer's uni- lateral change in conditions of employment under negoti- ation is . . . a violation of § 8(a)(5), for it is a circumven- tion of the duty to negotiate .... " V.L.R.B. v. Katz, et al., 369 U.S. 736, 743 (1962); and that the duty to bargain does not require parties to agree or to engage in "fruit- less marathon discussions." N.L.R.B. v. American .Nation- al Insurance Co., 343 U.S. 395, 404 (1952). It is also axi- 767 DECISIONS OF NATIONAL LABOR RELATIONS BOARD omatic that an employer violates Section 8(a)(5) by uni- laterally implementing a wage increase while negotia- tions are still in progress, and impasse has not been reached. See, e.g., Winn-Dixie Stores, Inc., 243 NLRB 972 (1979). Further, both the General Counsel and Respondent cite as the touchstone in the resolution of the often diffi- cult question of whether the facts of a particular case justify a finding of impasse the Board's holding in Taft Broadcasting Co., WDAF AM-FM TV, 163 NLRB 475 (1967), which stated: Whether a bargaining impasse exists is a matter of judgment. The bargaining history, the good faith of the parties in negotiations, the length of the ne- gotiations, the importance of the issue or issues as to which there is disagreement, the contemporaneous understanding of the parties as to the state of nego- tiations are all relevant factors to be considered in deciding whether an impasse in bargaining existed. a. The good faith of the parties in negotiations Through September 28 there is no showing of any bad faith in negotiations. It appears that on October I there was still some hope; but at that date the good faith of Respondent had diminished. I attribute that to the retain- er that day of Larrabee, who apparently determined, based on his evaluation of facts given to him by Re- spondent's representatives, that there was an impasse in negotiations. Whether he had reasonable cause to believe that there was an impasse is subject to grave question, es- pecially in light of Carper's testimony that during his telephone conversation with Hicks that afternoon he ex- pressed a willingness to proceed further in negotiations. It was only after October I that the parties went back- wards in their attempts to reach a settlement, a result of Respondent's termination of the agreement, the hiring of "permanent replacements," and the hard bargaining on matters other than wages, while resisting discussion of wages. b. The length of negotiations The negotiations consisted of four sessions, commenc- ing on September 17 and ending on September 28. The September 17 session lasted about 45 minutes, the Sep- tember 20 session lasted 1 hour; the third and fourth ses- sions each lasted about 2 hours, but more than half the time the parties were engaged in separate caucuses. Thus, there were no more than 4 hours of face-to-face discussion between the Union and Respondent. c. The importance of the issue The sole issue involved was wages. The Union insist- ed, by its rejection of Respondent's proposal to increase premiums for working foremen and differentials for other shifts, that Respondent's money package be devot- ed to hourly pay. Respondent insisted, however, that its money was well spent in those two areas. Other than that, as of September 28, there was a clear difference of proposals; but, in essence, the parties were only I per-. cent apart, to wit, 10-1/2-8-1/2 increase offered by Re- spondent, and 10-1/2-9-1/2 increase proposed by the Union. d. The bargaining history and the contemporaneous understanding of the parties This portion of the Board's test is the most difficult to resolve, for it requires not only an objective finding of what the state of facts was as of September 28, but a sub- jective attempt to discover what was going on in the minds of the negotiators as they left the bargaining table on September 28. Objectively, there is no doubt there was substantial movement in negotiations. The Union's proposal of 15 percent on September 17 was met with a counterproposal by Respondent of 7 percent on Septem- ber 20. By September 26, the parties had agreed to a "staggered" approach, Respondent offering an increase from its September 20 position to 8-7 and then to 9-8-7, while the Union responded that it would accept 10-1/2- 9-1/2. By September 28, Respondent had made further movement to 10-1/2 percent - 8-1/2 percent, which the Union indicated that it would take to its membership. As a result of the foregoing, it is clear that there was move- ment by one of the parties at each of the negotiating ses- sions. Further, as I have found, there was no objective cause for either party to believe that the proposals of the other were "final offers." Thus, there is no objective evidence to warrant a belief that an impasse had been reached. Turning to the subjective feelings of the parties, the salient question is whether there remains a "ray of hope with a real poten- tiality for agreement if explored in good faith in bargain- ing sessions." NL.R.B. v. Webb Furniture Corporation, 366 F.2d 314, 316 (4th Cir. 1966). The ultimate question is whether further bargaining would have been futile. Alsey Refractories Company, 215 NLRB 785 (1974); and an impasse is not reached by the mere exchange and re- jection of proposals. Dallas General Drivers, Warehouse- men and Helpers, Local Union No. 745, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America [Empire Terminal Warehouse Co.] v. N.L.R.B., 355 F.2d 842, 844 (D.C. Cir. 1966). Expressed another way, there is no impasse where neither party "exhausted bargaining possibilities nor reached the stage where further meetings would have been fruitless." N.L.R.B. v. E. L. Dell, Jr., trading as Waycross Machine Shop, 283 F.2d 733, 740 (5th Cir. 1960); American Feder- ation of Television and Radio Artists v. N.L.R.B., 395 F.2d 622, 628 (D.C. Cir. 1968); Taft Broadcasting Company, supra at 478. There is almost a void of evidence of the parties' sub- jective feelings at the end of the September 28 session. Respondent argues that since no new meeting had been scheduled on September 28, it is clear that an impasse was reached. That did not foreclose Hicks from calling Carper after his membership meeting on September 30, as he attempted to do, or on Monday, October 1, when he spoke with Carper and attempted to arrange another meeting. The parties to the contract were still amenable to negotiations by October 1, and I am unpersuaded that the mere failure to set a meeting for a certain day is, in these circumstances, evidence of an impasse. 768 INTA-ROTO. INCORPORATED Respondent next contends, however, that the Union's strike on October I demonstrated that there was an im- passe. The Board has held that a work stoppage is not in and of itself proof of an impasse, and that it may well be a device to speed up negotiations. Seven Motors. Ltd. d/ b/a Mazda South, et al., 233 NLRB 1198 (1977). As the Supreme Court stated in N.L.R.B. v. Insurance Agents' International Union, AFL-CIO [Prudential Insurance Company of America], 361 U.S. 477, 495 (1960), there is "no inconsistency between the application of economic pressure and good faith bargaining," 495, and "economic pressure . . . is part and parcel of the process of collec- tive bargaining." Further, in N.L.R.B. v. Katz, 369 U.S. 736 at 741, fn. 7, the Supreme Court wrote: Engaging in partial strikes is not inherently incon- sistent with a continued willingness to negotiate; and as long as there is such willingness and no im- passe has developed, the employer's obligation con- tinues. By implication, the Supreme Court recognized that there could be a strike without an impasse, a union's tactic being "designed to put pressure on the employer to come to terms with the union negotiators." N.L.R.B. v. Katz, 369 U.S. at 747. Indeed, Hicks credibly testified that this was the purpose of the Union's strike on October 1. This, therefore, was not evidence of an impasse.8 Finally, Respondent argues that when Hicks called the mediator on Monday morning, October 1, while the strike was in progress, he requested that "they set up a meeting to try to get us off dead center," thus indicating a feeling of hopelessness and impasse. This, Respondent contends, is bolstered by Hicks' statement on October 15 to the mediator that "it looked like we were just dead- locked there and couldn't get off dead center." Respond- ent omits from its argument that Hicks, during his Octo- ber 1 conversation, also informed the mediator that "we were close and we weren't really that far apart." His at- tempt to arrange a meeting, which was an attempt to bridge the small gap which remained, and Carper's stated willingness to agree to bargain collectively (al- though with some delay, due to Respondent's hiring of Larrabee), indicate that both parties still believed that bargaining was not futile, hopeless, and without any pos- sibility of bearing fruit. As a result, I conclude that there was no indicia of im- passe which warranted Respondent's taking any action unilaterally. All parties concede that Respondent's in- creases of wages, premiums, and differentials became ef- fective on October 1, but I have grave reservations that the decision to put those increases into effect was made on that day. In any event, with Carper's alleged acquies- cence in Hicks' request for bargaining on the afternoon of October 1, Respondent waived any claim that it might have had that an impasse had been created by the 8 The General Counsel argues that, even if there were an impasse in negotiations on September 28, the Union's strike by itself broke the im- passe. Although not necessary to the disposition of this proceeding, Board law may not be stretched to permit a union, by timing a strike, to thwart a threatened change of terms and conditions of employment: All the circumstances must be considered Transport Compnv of Txav, 175 NLRB 763, fn 1 1969). Union's actions on September 28 or by its rejection of Respondent's last offer. Pillowrex Corporation, 241 NLRB 40 (1979). 2. The termination of the contract The principal disputed issue concerns the conse- quences of the contractual language, "either party shall have such course of action open to its [sic] as it would have had if this contract were to expire on such reopen- ing date." It is obvious that this language is susceptible to a variety of interpretations, and there is unfortunately no extrinsic evidence which is helpful. It is clear that in 1974, when the parties sought to renegotiate a 3-year agreement, which had been their practice since 1947, they were unable to agree on wage terms for the third year of the contract. Hicks then suggested that Respond- ent consider a "reopener" clause for the third year, to which Respondent agreed. Francis V. Lowden, III, then Respondent's chief negotiator and attorney, drafted the language, which Hicks accepted. There was no discus- sion of the mechanics of the reopener nor, specifically, what would happen if the parties were unable to agree on wage rates for the third year of the contract.9 As is often the case, each party argues that the lan- guage is clear and unmistakable, expressing the clear intent of the parties to permit entirely different conse- quences-proof, indeed, of the patent ambiguity of the language. The General Counsel contends that, although the collective-bargaining agreement lacks a no-strike pro- vision, such is implied as a matter of law because the agreement contains a final and binding arbitration clause, citing Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America v. Lucas Flour Co., 369 U.S. 95 (1962). Thus, the General Counsel contends that the intent of the reopener is clear; it permits the Union, when there has been no agreement on wages on October 1, 1979, to strike, as if the agreement had expired; and, concomitantly, it permits Respondent to lock out its em- ployees. The difficulty with these contentions is that the Gener- al Counsel reads Lucas Flour too broadly. The Supreme Court cautioned, 369 U.S. at 106: "What had been said is not to suggest that a no-strike agreement is to be implied beyond the area which it has been agreed will be exclu- sively covered by compulsory terminal arbitration." Thus, any no-strike clause must be coincident with the scope of the arbitration clause. I find that the issue of wages during the third year was not intended to be re- solved by interest arbitration, and that such a dispute was not an arbitrable grievance within the contemplation of the contract. Accordingly, I conclude that the Union was at no time prohibited from engaging in economic action to support its wage demands; and I reject the General Counsel's interpretation of the reopener clause. Respondent argues in its brief that the "agreement pro- vides that if the parties do not come to terms during the 9 In so finding I discredit Lowden's initial testimony (in response to a leading question from Respondent's counsel) that there ;as some discus- sion of the effect of a failure to agree Later in his testimony, he stated he could not recall whether there was such discussion I believe Hicks' tesi- mon) that Lowden said nothing. 769 DECISIONS OF NATIONAL LABOR RELATIONS BOARD course of the wage reopener negotiations then the con- tract will expire." If the contract actually was intended to afford a party a right to terminate the agreement, the language fell far short of doing so. The language deals only with actions the parties might make as if the con- tract were to expire; it does not state that either party shall have the right to terminate the agreement, nor does it say that the contract is to be treated as expired. If the contract were to be treated as expired on the reopening date, then there would be no need for a party to termi- nate the contract, because it would already be terminat- ed. The duration of the contract for a period of 3 years is clear and certain; and there is no affirmative, credible evidence that the parties intended that the agreement's length, under any circumstances, could be converted to 2 years. Firestone Synthetic Rubber & Latex Company, Divi- sion of the Firestone Tire & Rubber Company, 173 NLRB 1174 (1968). In any event, it is the rule that ambiguities in contracts are to be construed against the drafter, in this instance, Respondent. Taft Broadcasting Co., WDAF AM-FM-TV v. N.L.R.B., 441 F.2d 1382, 1384 (8th Cir. 1971). Indeed, although October 1, 1979, was the date when the wages for the third year were to be effective, it was not the critical date for any action to be taken by the parties, either by strike, lockout, or, as Respondent argues, termination of agreement, the latter of which I find was never intended. Instead, the agreement provides that the parties may take action only when "the parties fail to come to agreement." That is the equivalent of an impasse; otherwise, either party might make no effort to agree and declare at any time that there is a failure to agree. That alternative makes no sense. Since I have found that impasse was never reached, I conclude that, even if termination of the agreement were contemplated, it could not be invoked until impasse.' 0 Motor Carriers Council of St. Louis, Inc., et al. v. Local Union No. 600, I.B.T., 486 F.2d 650 (8th Cir. 1973). Finally, even if the agreement authorized Respondent to terminate the aqreement, it might have done so only because the parties' "failure to agree." Instead, Respond- ent took action solely in retaliation for the Union's strike, which even Respondent concedes was on October I an economic strike, protected by Section 7 of the Act, and encompassed within the terms of article XIX. Respond- ent's act, which was not justified by the language of its collective-bargaining agreement, necessarily interfered with the exercise of concerted and protected employees rights, in violation of Section 8(a)(l) of the Act. Pitts- burgh and New England Trucking Co., 238 NLRB 1706 (1978). 3. The grand plan Based on the entire record, I conclude that, when the Union commenced its strike on October 1, Respondent determined that, with its limited and inexperienced staff, it was incapable of dealing with the Union. Instead, it hired Larrabee, who was the prime mover not only to put an end to the immediate labor dispute, but also to 'o To the contrary, a strike could be called at any time, because there is no prohibition against a strike in the agreement. teach the Union some kind of object lesson. Within a few days of his retainer, Larrabee commenced a campaiqn to persuade the striking employees to return to work. On October 3, a notice advised all employees of their right to work during a labor dispute, noting that Respondent's September 28 wage increase proposal had been put into effect, thus implying that their concerted action was not very meaningful. When that failed, more force was ap- plied. Letters were sent on October 5 to employees at- tempting to frighten them into returning to work by noting that it would be necessary to hire permanent re- placements for them, and that certain benefits had been withdrawn from them as a result of the strike. On the same day, Respondent notified Hicks that the Union's strike had resulted in the termination of the agreement and that conditions for bargaining had changed: Re- spondent was now willing to submit proposals on the now terminated former labor agreement "other than wage improvements already placed into effect." Further, the decision to hire permanent replacements was imple- mented by the placing of advertisements in the local paper, the first one (at least according to the evidence in- troduced) appearing on Sunday, October 7. Although striking employees were advised that Re- spondent intended to hire permanent strike replacements for them on October 5, it was only during the afternoon of October 8 that a telegram was sent to the Union ad- vising it. Shortly thereafter, strike replacements were hired, and at the negotiating session of October 15, the first time that the parties had met since September 28, Larrabee presented his "laundry list" of negotiable items to Hicks, all of which pertained to matters other than wages, consistent with Respondent's position that the collective-bargaining agreement had expired.'2 It could only be Hicks' natural reaction, especially when faced with such items as a 10-percent reduction from union checkoffs and revision of seniority and vaca- tion provisions, that he would take the position that Re- spondent was bargaining in bad faith, and that an amica- ble settlement was far away. The fact of the matter is that the negotiating posture of Larrabee was intended to thwart the orderly process of negotiations. Not only were all of the items on his list nonnegotiable as a result of the limitation in the reopener clause to negotiations solely concerning wages, but was a purposeful attempt to avoid bargaining on behalf of Respondent, both of which are illegal objectives under Section 8(a)(5) of the Act. Furthermore, although the strike commenced on Octo- ber I as an economic strike, I find that it was converted to an unfair labor practice strike on October 5 by the advice to the Union of Respondent's unilateral termina- I" In so finding, I do not find a violation by reason of Respondent's attempt to break the strike Those attempts are absolutely permitted by law in the absence of unfair labor practices '2 Although Respondent contends that the agreement had expired and, therefore, it was entitled to commence negotiations anew I find that it was somewhat ambivalent as to the legality of its position. Thus, Re- spondent's counsel argued that Respondent was not "talking about nego- tiating an entirely new labor agreement," and that its new proposals were initiated only to break the "impasse" on the wage issue-thus indicating some reluctance to follow through fully its argument that the 1977 agree- ment no longer existed and that it was entitled to do anything. 770 INI'A-ROTO, INCORPORAT'IED tion of the then current collective-bargaining agreement. The strike has continued to be an unfair labor practice strike since that date and has been prolonged as a result of Respondent's insistence that its agreement was termi- nated, and Respondent's continued conditioning of bar- gaining over terms and conditions of employment other than wage rates as allowed by the reopener clause. Clearly, Respondent's actions "precluded any possibility of reaching agreement on contract and tended to impede any possible settlement of the strike." Pcnnco, Inc., 242 NLRB 467, 468 (1979). The notification to unfair labor practice strikers that they had been permanently replaced constitutes, at the very least, an illegal threat of permanent replacement. Mastro Plastics Corp., French-American Reeds Mfg. Co., Inc. v. N.L.R.B., 350 U.S. 270, 278 (1956). Their names and dates when they were alleged by the General Coun- sel to have been discharged13 are as follows: C.E. Adams 10 24-79 I.C. Allen 10-17-79 P.L. Allen 10-9-79 T.L. Anthony 10-23-79 Carneall Bolden 10-10-79 O.C. Bolden 10-12-79 A.F. Bradby 10-29-79 F.M. Cash 10-10-79 J.R. Christian, Jr. 1-14-80 W.A. Christian 10-12-79 W.H. Conway 10-10-79 S.O. Crawley 10-9-79 G.L. Fields 11-5-79 A.G. Greene After 10-5-79 C.A. Greene 10-31-79 M.A. Greene 10-29-79 W.T. Hall 11-30-79 R.L. Harper 10-9-79 C.J. Jeter 1-8-80 W.T. Jeter 1-7-80 E.W. Jones 11-27-79 H.A. Jones 11-2-79 W.O. Kniesche 10-9-79 A.B. Martin 11-27-79 R.P. Miller 10-26-79 T.L. Mills 10-24-79 D.E. Robinson 10-29-79 J.H. Smith 10-12-79 A.N. Tabb 12-3-79 Richard Watson 11-5-79 M.E. Whitehead After 10-5-79 J.A. Wright 10-31-79 There remains at issue the status of four employees- M. W. Jewell, M.P. Bowery, H. S. Reszies, and R. S. Maxey-who had been employed in Respondent's en- graving division, which had been suffering a decline in " See sec 3.4, in/iu business for several years. Prior to the strike, Respondent and the Union had discussed Respondent's need to reduce its personnel in that division. Although the par- ties had not fully resolved how the reduction was to be accomplished, even before September 17 at least one em- ployee had been transferred to another department as a machine operator. During the strike, several replacement employees were hired in the division; and when Respondent found that it had a full complement of, in particular, grinders and floormen, it notified the four named strikers that their jobs had been eliminated. That, however, was a misno- mer-instead, their jobs or, at least, the jobs of some of them, had been filled by strike replacements. Although the record is not the model of clarity, it appears that when the jobs were filled Respondent notified the least senior striking employees that their jobs had been elimi- nated. Thus, Reszies and Maxey, although not the least senior employees in their classifications. lost their jobs when more junior employees or strike replacements filled their former positions. It is unclear whether the other two employees would have retained their jobs in the di- vision or transferred to other jobs. Indeed, the admitted goal of Respondent, as testified to by Carper, was to avoid layoffs of the employees in that division, to the extent of transferring employees to lesser payinq jobs if necessary. The notification to the four employees that their jobs were eliminated clearly ran contrary to that goal and constituted an absolute sev- erance of their employment, notwithstanding that they were unfair labor practice strikers and were entitled to reinstatement upon their unconditional offer to return to work. Pecheur Lozenge Co., Inc., 98 NLRB 496 (1952), enfd. 209 F.2d 393 (2d Cir. 1953), cert. denied 347 U.S. 953 (1954). 1 conclude that their discharges are in viola- tion of Section 8(a)(3) and (1) of the Act. 4. bilities and Goodwill. Inc. The General Counsel seeks backpay for all the em- ployees who were either permanently replaced or ad- vised that their jobs no longer existed, on the basis of Abilities and Goodwill, Inc., 241 NLRB 27 (1979). There, the Board changed its longstanding rule which required an unfair labor practice striker to make an unconditional offer to return to work (and the employer's rejection of same) as a predicate to the award of backpay. Noting that the nature of an employer's unlawful discharge of an employee is not changed by the fact that the employee happens to be a striker, the Board held that it would be equally futile for a striker to ask for a return to work as would a discharged employee. Rather, the "burden right- fully rests on the employer to remedy the situation." 241 NLRB 27. If the employees herein had been discharged, there would be no substantial legal issue. Indeed, the elimina- tion of the jobs formerly held by four striking employees is sufficient to establish that it would have been futile for them to seek reinstatement. Not only were their jobs no longer in existence, but there was no hope given by Re- spondent that there were any other jobs available to them to apply for. 771 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A different issue is presented by those employees who were "permanently replaced," the equivalent, the Gener- al Counsel argues, to being discharged, citing McGregor & Werner. Inc., 136 NLRB 1306, 1314-1315 (1962), and Orr Iron, Inc., 207 NLRB 863, 871 (1973). But the law is not so well settled. See, e.g., Associated Wholesale Gro- cery of Dallas, Inc., 119 NLRB 41 (1957), enforcement denied 262 F.2d 281 (5th Cir. 1959); Crookston Times Printing Company, 125 NLRB 304, 317-318, particularly fn. 21 (1959); European Cars Ypsilanti, Inc., 136 NLRB 1595 (1962), enforcement denied 324 F.2d 606 (6th Cir. 1963); Maxville Stone Company, 166 NLRB 888 (1967); Woodlawn Hospital, 223 NLRB 782 (1977), enforcement denied in part, remanded in part 596 F.2d 1330 (7th Cir. 1979). In Kerrigan Iron Works, Inc., 108 NLRB 933 (1954), enfd. 219 F.2d 874 (6th Cir. 1955), cert. denied 350 U.S. 835, the employer notified economic strikers that work would be available on a certain day, that their failure to return would be an indication that they did not desire re- employment, and that they would thereupon be perma- nently terminated. The letters were treated by the em- ployer as termination notices; and copies thereof were at- tached to the strikers' personnel files, which were there- after placed in the inactive files with those of other em- ployees who were deceased, terminated, or had quit. The Board found that the strikers had not been termi- nated because of the employer's subsequent conduct of rehiring employees who sought reinstatement after the day they were required to report, and the failure of the record to disclose any other striker (other than those who had been permanently replaced) who had been denied reinstatement. Similarly, in Matlock Truck Body & Trailer Corp., and its Agent Ray L. Matlock, 217 NLRB 346, 349 (1975), the Board found that, despite the employer's advice to var- ious unfair labor practice strikers that their jobs had been filled with replacements, they had not been discharged, affirming the test utilized by the Administrative Law Judge that: . . . the term, "discharge" means that "any offer to return to work [by the striking employees], howev- er phrased, [would be] futile for purposes of achiev- ing the full reinstatement to their former status to which they, as unfair labor practice strikers, were entitled, [quoting from Comfort, Inc., 152 NLRB 1074, 1079 (1965), enfd. in part 365 F.2d 867 (8th Cir. 1966)]. There, the employer had also reinstated all striking em- ployees who had applied for reinstatement. See also Hanley Dawson Chevrolet, Inc., 168 NLRB 944 (1967). Here, there is evidence that six employees'4 who had applied for reinstatement had been hired by Respondent. There is also evidence that Respondent continued to rec- ognize the strikers as "employees" in various communi- cations in 1979 and 1980 and assured them of continuing seniority. It gave hams to the strikers in December 1979, and never paid them the vacation benefits which would ' The employees are Carneall Bolden. O C Bolden. C. J Jeter, W T Jeter. R. P Miller, and J. A Wright. have been due them if they had, in fact, been terminated. Further, Respondent made known to the Union at the bargaining table on October 15 that the strikers were still considered to be employees. Utilizing the Matlock Truck test, which is the same as the rationale for Abilities and Goodwill, it cannot be said that, even after receipt of the letters by those employees who were permanently replaced, their requests for rein- statement would be utterly "futile." There was enough indication by both Carper and Larrabee that requests for reinstatement would be favorably acted upon, if not wholly in accord with law. On October 15, they ex- plained to the union negotiators that if an employee's former position was available, he would be reinstated to that job. If not, the employee would be placed into a job of similar classification. If no jobs of similar classification were available, any job would be offered. If there were no openings, then the employee "would be placed on a preferential hiring list, and given preferential treatment as far as filling the next opening at whatever level it may fall in." Although the six strikers have been reinstated, the record does not reveal whether they were reinstated to the same positions they held prior to October. Lacking any evidence to the contrary, I assume that they were. The record is also barren of any showing that all of the employees who received notifications that they were 'permanently replaced' would have been reemployed in their former positions had they made applications for im- mediate reinstatement. That, however, was never tested by the remaining "permanently replaced" employees who must have understood that they were still employ- ees of Respondent with certain rights, although they were obviously threatened with loss of some of the rights to which they were entitled. As a consequence, I find that the strikinq employees, except for those who were advised that their jobs were eliminated, had not been discharged and that their chances of reemployment to their former positions were not so "futile" as to warrant the application of Abilities and Goodwill. 5 III. HI Ft FI CT OF THE UNFAIR I.ABOR PRACTICES UPON COMMERCE Respondent's activities set forth in section II above, occurring in connection with the operations of Respond- ent described in section I above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. 1' I note that in Mattock Truck. supra, 217 NLRB at 349, the Adminis- trative Law Judge, in finding that strikers had not been discharged, noted that: "Whether or not the striking employees were unlawfully discharged is of minimal significance . [because theyl are not entitled to any hack- pay until they signify their desire to return to work." Under the Board's ntie policy, the issue is of paramount importance 772 INTA-ROTO. INCORPORATED CONCLUSIONS OF LAW 1. Inta-Roto, Incorporated, is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act. 2. Local Union No. 10, International Association of Machinists and Aerospace Workers, is a labor organiza- tion within the meaning of Section 2(5) of the Act. 3. At all times material herein the Union has been and is the sole and exclusive collective-bargaining representa- tive of all of Respondent's production and maintenance employees in the mill roll and machine divisions and cer- tain production and maintenance employees in the en- graving and roll divisions at Respondent's plant in Hen- rico County, Virginia, but excluding supervisory, clerical employees, and engineering personnel. 4. Commencing on October 1, 1979, the unit of em- ployees described above engaged in an economic strike against Respondent, which, by reason of Respondent's unfair labor practices, was prolonged and converted into an unfair labor practice strike on October 5, 1979, and so continues. 5. By threatening unfair labor practice strikers with being permanently replaced on and after October 5, 1979, Respondent violated Section 8(a)(1) of the Act. 6. By discharging M. P. Bowery, M. W. Jewell R. S. Maxey, and R. S. Reszies because they engaged in pro- tected concerted and union activities, Respondent has violated Section 8(a)(3) and (1) of the Act. 7. By unilaterally, without bargaining to impasse with the Union, establishing wage rates for employees in the unit set forth above greater than that paid to said em- ployees prior to such time; by conditioning the continu- ation of bargaining upon the Union's agreement to bar- gain over terms and conditions of employment other than the wage rates for the employees in the unit set forth above; and by unilaterally terminating its current collective-bargaining aqreement with the Union, Re- spondent has failed and refused to bargain in good faith in violation of Section 8(a)(5) and (1) of the Act. 8. The above uffaar dabgr practaces are unfaar labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. 9. Respondent has engaged in no other unfair labor practices other than those specifically found. THE REMEDY Having found that Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(1), (3), and (5) of the Act, I shall recom- mend that it cease and desist therefrom, post an appro- priate notice, and take certain affirmative action designed to effectuate the purposes and policies of the Act, includ- ing, upon request, to barqain in good faith with the Union, and to rescind the unilateral wage increase and increase of other terms and conditions of employment. Additionally, I shall recommend that Respondent be ordered to offer M. P. Bowery, M. W. Jewell, R. S. Maxey, and H. S. Reszies reinstatement to their former positions, or, if such jobs no longer exist, to substantially equivalent positions, or positions to which they would have been transferred from the engraving division, with- out prejudice to their seniority and other rights and privileges, and to make them whole for any loss of earn- ings they may have suffered by reason of their dis- charges, by paying them a sum of money equal to that which they normally would have earned absent the dis- charges, less earnings during such period, with interest thereon, to be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Flor- ida Steel Corporation, 231 NLRB 651 (1977).16 The back- pay obligation for Jewell and Bowery shall commence on November 1, 1979, for Maxey and Reszies, on No- vember 30, 1979. I shall also recommend reinstatement of unfair labor practice strikers upon their unconditional offer to return to work and the dismissal of persons hired on or after October 5, 1979, if that becomes necessary. N.L.R.B. v. W C. McQuaide, Inc., 552 F.2d 519, 528-529 (3d Cir. 1977); Newport News Shipbuilding and Dry Dock Compa- ny, 236 NLRB 1637 (1978). Reinstatement shall mean re- instatement to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to seniority and other rights and privileges. Such unfair labor practice strikers are to be made whole for any loss of earnings they may suffer as a result of Respondent's refusal, if any, to reinstate them in a timely fashion, by paying to each of them a sum of money equal to that which each would have earned as wages during the period commencing 5 days after the date on which each unconditionally offers to return to work to the date of Respondent's offer of reinstatement, less any net earnings during such period, with interest thereon, to be computed in the manner described above. If Respondent has already rejected, or hereafter rejects or unduly delays, or ignores any unconditional offer by its employees to return to work, or attaches unlawful conditions to its offer of reinstatement, the 5-day period for offering reinstatement as provided in the recommend- ed remedy serves no useful purpose, and backpay will commence as of the date an unconditional offer to return to work is tendered by its employees. Upon the above findings of fact, conclusions of law, and the entire record in the case, and pursuant to Section 10(c) of the Act, I hereby issue the following recom- mended: ORDER ' The Respondent, Inta-Roto, Incorporated, Henrico County, Virginia, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Threatening employees with permanent replace- ment or elimination of jobs, or other reprisals, for engag- ing in an unfair labor practice strike or other protected concerted and union activities. -' See, generally. lit Plumbing & Heating Co.. 138 NLRB 716 (1962) 7 In he ent no exceptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board. the findings. conclusions, and recommended Order herein shall, as pros ided in Sec 10)2 48 of the Rules and Regulations. be adopted by the Board and become Its findings, conclusions, and Order, and all objections thereto shall hb deemed . vaixed for all purposes 773 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Discharging employees by eliminating their jobs, for engaging in an unfair labor practice strike or other protected concerted and union activities. (c) Refusing to bargain in good faith with Local Union No. 10, International Association of Machinists and Aerospace Workers, by unilaterally instituting wage in- creases and increases of shift differentials, or changing any term or condition of employment, without notifying, consulting, and bargaining with the Union as exclusive representative of its employees in the appropriate unit. (d) Refusing to bargain in good faith with the Union by conditioning bargaining upon the Union's agreement to bargain over terms and conditions of employment other than wage rates, as provided in the reopener clause of the parties' collective-bargaining agreement, prior to the parties having reached an impasse. (e) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the policies of the Act: (a) Upon request of the Union, bargain collectively with it as the exclusive representative of all Respondent's production and maintenance employees in the mill roll and machine divisions and certain production and main- tenance employees in the engravinq and roll division at Respondent's plant in Henrico County, Virginia, but ex- cluding supervisory, clerical employees, and engineering personnel, with respect to wages as provided in the col- lective-bargaining agreement between Respondent and the Union in the reopener provision thereof, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Upon request of the Union, rescind the unilateral increases of wages, premiums to working foreman, and shift differentials. (c) Offer M. P. Bowery, M. W. Jewell, R. S. Maxey, and H. S. Reszies and such other employees, if any, whose jobs were eliminated as a result of said employees having engaged in an unfair labor practice strike com- mencing on or about October 5, 1979, immediate and full reinstatement to his or her former job, without prejudice to their seniority and other rights and privileges, dismiss- ing, if necessary, replacement employees, and make them whole for any loss of earnings suffered by reason of the discrimination against them, with backpay for Jewell and Bowery to commence on November 1, 1979, and for Maxey and Reszies on November 30, 1979, with interest thereon, to be computed as described in "The Remedy" section of this Decision. (d) Upon their unconditional offer to return to work, reinstate the unfair labor practice strikers, dismissing, if necessary, any replacements hired in their place, and make them whole for any loss of earnings that they may have incurred, in the manner set forth in "The Remedy" section of this Decision. (e) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time- cards, personnel records and reports, and all other re- cords necessary to analyze the amount of backpay due under the terms of this Order. (f) Post at its Henrico County, Virginia, place of busi- ness copies of the attached notice marked "Appendix."' 8 Copies of said notice, on forms provided by the Regional Director for Region 5, after being duly signed by a rep- resentative of Respondent, shall be posted by Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (g) Notify the Regional Director for Region 5, in writ- ing, within 20 days from the date of this Order what steps Respondent has taken to comply herewith. I- IS FURTHER ORDERED that the complaint be dis- missed insofar as it alleges violations of the Act other than those found herein. a In the event that this Order is enforced by a Judgment of the United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall read "Posted Pur- suant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board" 774