Inta-Roto, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 764 (N.L.R.B. 1980)

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