Mosher Steel Co.

National Labor Relations Board - Board Decisions

Sep 16, 1975

220 N.L.R.B. 336 (N.L.R.B. 1975)

336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mosher Steel Company and United Steelworkers of
America , AFL-CIO . Cases 23-CA-5165,
23-CA-5258 (formerly 16-CA-5699), and
23-CA-5282 (formerly 15-CA-5357)
September 16, 1975
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On April 23, 1975, Administrative Law Judge
Samuel M. Singer issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief.
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 brief
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and
to adopt his recommended Order as modified herein.
Among other violations of Section 8(a)(1) not rele-
vant here, the Administrative Law Judge found that
Respondent violated that section of the Act by the
following conduct: (1) interrogating employees as to
whether or not they intended to strike or picket; (2)
appealing to an employee to cross the picket line at
the Houston plant by stating that if the employee
crossed the picket line a second employee had agreed
to do likewise; and (3) disseminating to employees
who crossed the picket line and returned to work a
statement of resignation from the Union that the em-
ployees could copy and mail to the Union if they
were concerned about the possibility of a union fine.
In its brief in support of exceptions, Respondent
maintains that inquiries made by its supervisors con-
cerning employees' strike intentions were for the le-
gitimate purpose of determining whether employees
would participate in the strike-and hence the likely
need for replacements-and therefore were not viola-
tive of the Act. We would not quarrel with the propo-
1 The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board 's established policy not to over-
rule an Administrative Law Judge 's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc. 91
NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951) We have carefully
examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto , we adopt pro forma the Adminis-
trative Law Judge's finding and conclusion that the record evidence does
not support the allegations of the complaint that Respondent violated Sec.
8(a)(1) of the Act by creating the impression of surveillance over union
activities, or that Respondent violated Sec. 8(a)(5) of the Act by unilaterally
promulgating and implementing a change in breaks or rest periods.
sition that questions about employee strike intentions
are not per se unlawful but must be judged in light of
all the relevant circumstances. Thus, where the rec-
ord shows that at the time the questions were asked
the Employer had a reasonable basis to fear an immi-
nent strike and merely sought to ascertain the
chances for keeping his business open, such inquiries
are lawful.3 See Industrial Towel & Uniform Service
Company, 172 NLRB 2254 (1968). On the other
hand, an employer cannot rely on unsubstantiated
rumor or mere speculation as a justification for ques-
tioning employees concerning their intentions in the
event a strike is called. Cf. W. A. Sheaffer Pen Com-
pany, Division of Textron, Inc., 199 NLRB 242 (1972).
Applying these principles to the instant case, it is
apparent that long before any strike vote was taken °
and before negotiations between the parties had
reached any impasse I Respondent undertook the
systematic questioning of employees at the various
plants involved here concerning not only their possi-
ble participation in a strike but also their "gripes"
and complaints. For example, about 1 month before
the strike Superintendent Carney questioned employ-
ee Gray as to whether he would "go out" in the event
of a strike, and on various dates in May and early
July employees were questioned about their strike in-
tentions by Foremen Sedlar, Leddy, and Goeke. Fur-
thermore, in certain instances questions about strike
intentions were coupled with threats or promises of
benefits. Thus, as found by the Administrative Law
Judge, Foreman Upchurch told employee Rollings
that he would "get to the top" by sticking with the
Company and Vice President Banks warned employ-
ee Montgomery, a union committeeman, that if the
men struck he would be blamed for the strike. In
view of these circumstances, we agree with the Ad-
ministrative Law Judge's conclusion that by these
and similar acts of interrogation Respondent violated
Section 8(a)(1) of the Act .6
Turning to the issues raised by Foreman Leddy's
appeal to employee Harris to cross the picket line at
Respondent's Houston plant and to Respondent's
conduct in preparing and disseminating to employees
language that could be used to resign from the
Union, we conclude, contrary to the Administrative
Law Judge, that neither of these actions constituted
3 This assumes, of course , that the inquiries are unaccompanied by
threats, promises, or other coercive conduct
Strike votes were taken at Respondent 's several plants on July 15, 16,
and 17.
3 Respondent's initial economic proposal was not presented to the Union
until the July I bargaining session.
6 On the other hand , we do not find that Respondent violated Sec . 8(a)(1)
by questioning employees concerning their strike intentions after the strike
became imminent and where the questioning was not coupled with threats
or promises . For example, contrary to the Administrative Law Judge, we do
not find a violation of Sec . 8(a)(1) based on the exchange between Dallas
Foreman Upchurch and employee York on the Saturday before the strike
220 NLRB No. 47
MOSHER STEEL COMPANY 337
unlawful interference under Section 8(a)(1) of the
Act. As for Leddy 's solicitation of Harris to return to
work because another employee (Page) had agreed to
return if Harris did, we find in such an appeal neither
a promise of special benefit nor a threat of detriment.
Accordingly, we are unwilling to find Foreman
Leddy's appeal to Harris unlawful . See Coca Cola
Bottling Company of Louisville, 166 NLRB 134, 135
(1967).
With respect to the company-prepared statement
of resignation from the Union , the uncontradicted
record testimony establishes that Jones,
Respondent 's industrial relations manager , was ap-
proached by several employees who had crossed the
picket line and who voiced concern because they
"had heard that they could be fined for coming to
work if they had signed a Union card ." In response
to inquiries from these employees , Respondent's
management contacted the company attorney who
prepared the following statement:
I am an employee of Mosher Steel Company
and effective immediately I wish to cancel my
membership in the United Steelworkers Union.
Thereafter , at the direction of Respondent 's presi-
dent, this statement was sent to all plant managers
and personnel directors under a covering letter that
stated that the Union had threatened to fine employ-
ees who had previously signed cards but had re-
turned to work ; that the Union could fine such em-
ployees unless they withdrew their membership; and
that such withdrawal could be accomplished by mail-
ing the Union a letter utilizing the above -cited lan-
guage . Respondent 's industrial relations director tes-
tified that he told plant officials : "If the guys ask you
for help . . . tell them what they can do to resign
from the Union." Jones further testified that plant
managers were directed to quote to employees the
resignation language set forth above, but under no
circumstances were the managers to furnish employ-
ees with paper or stamps nor were they to mail the
letters for employees. There is no evidence that any
plant manager disregarded these instructions.
On this record, we are not satisfied that by the
above-described conduct Respondent violated Sec-
tion 8(a)(1) of the Act as found by the Administra-
tive Law Judge. Although Union Representative
Corley asserted that under the provisions of the
Union's constitution no employee who returned to
work here could actually have been fined, it appears
from the record that employees were concerned
about the possibility of fines and communicated this
concern to management . Absent some evidence that
union resignation was a company -imposed condition
for returning to work (or that employees were led to
believe that it was such a condition), and absent any
evidence. that the Company did more than furnish
employees with resignation language, we decline to
find that Respondent's conduct in this regard was
unlawful. See Montgomery Ward & Co., Incorporated,
202 NLRB 593 (1973) 7
In passing, we also note our agreement with the
Administrative Law Judge's finding that Respondent
violated Section 8(a)(5) and (1) of the Act by an-
nouncing and granting a general 6-percent wage in-
crease and by granting numerous individual increas-
es while negotiations with the Union were
continuing-all without affording the Union notice
or an opportunity to bargain.
Although Respondent maintains that its conduct
with respect to granting both types of increases was
consistent with its past practice and hence (in
Respondent's view) lawful, neither the facts of the
case nor the law applicable thereto supports its posi-
tion. With respect to the individual wage increases-
variously styled by Respondent as "progress," "pro-
motion ," or "merit" increases-the record clearly
demonstrates that Respondent had no set or auto-
matic policy for such increases.' The record also indi-
cates that the number of such individual increases-
many of which were granted in a relatively brief peri-
od of time-can fairly be described as "massive" and
plainly represented a departure from any established
practice by this Respondent. Finally, we cannot ig-
nore the Administrative Law Judge's finding that
commencing in late May and early June various
company supervisors and officials met with employ-
ees, singly and in groups, and solicited their com-
plaints, including their complaints about wages, and
that promptly thereafter certain employees received
' In its exceptions Respondent also urges that we reverse the Administra-
tive Law Judge's finding of an 8(a)(I) violation based on Shreveport Fore-
man Johnson's statement to employee Montgomery that if the men went out
on strike " the Company would mail us a letter and giving us so many days
and after that we would be fired if we didn't come back to work " Respon-
dent argues that because the letter ultimately mailed to employees used the
term "replaced" and not "fired" Johnson 's statement cannot be isolated
from the letter and held to violate Sec. 8(a)(I) of the Act (citing Coca Cola
Bottling Co, 166 NLRB 134 at 139)
Contrary to the Respondent , we conclude that Johnson's statement signif-
icantly misstated employee rights in a manner that was likely to induce the
employee to abandon his right to engage in protected activity and hence
violated Sec . 8(a)(I) of the Act Cf Dayton Food Fair Stores, Inc v.
N L R B, 399 F 2d 153 (C.A 6, 1968 ), cert denied 393 U S 1085 (1969). In
this regard we note that Respondent 's reliance on Coca Cola Bottling Co.,
supra, is totally misplaced . There, a supervisor's remark to employees that
they would be "firedif they struck was found , in the context of the entire
conversation including the supervisor's immediate retraction of the word
"fired" and his explanation to employees that they could only be "re-
placed ," not to violate Sec 8(a)(l) Here, on the other hand , there was no
such immediate retraction and explanation but rather the employee was left
with the impression that his participation in concerted activity would lead to
his discharge
8 Respondent's own witnesses testified in essence that there was no set
policy on these raises but rather that they depended on any number of
variables
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so-called "merit" or "promotion" increases.
As for the general increase granted by Respondent
in July, Respondent 's vice president acknowledged
that a yearly general increase was neither "guaran-
teed" nor fixed either in terms of amount or in timing
but rather depended on a vote by the board of direc-
tors and on the Company' s overall economic posture.
Consistent with a finding that the grant of a general
wage increase involved the exercise of a large mea-
sure of business judgment and discretion is the rec-
ord evidence that over the past several years general
increases have been granted in months other than
June or July, have been granted twice in a single
year, and have varied in amount . We also note that
the general increase granted here was announced
only 11 days after Respondent presented the Union
with an economic offer that contained no reference
to the planned general increase and which drew from
the Union a complaint that the Company was unwill-
ing to give "a damn cent."
Under all the circumstances present here, we are
satisfied that the Administrative Law Judge correctly
found that the general increase , as well as the indi-
vidual increases , falls within the principle and prohi-
bition of N.L. R.B. v. Benne Katz, d/b/a/ Williams-
burg Steel Products Co., 369 U.S. 736 (1962).
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 , as modified
below , and hereby orders that Respondent Mosher
Steel Company , Houston , Texas , its officers , agents,
successors, and assigns , shall take the action set forth
in the said recommended Order as so modified:
1. Substitute the following for paragraph 1(d):
"(d) Coercively questioning employees about their
union sympathies and activities , promising them ben-
efits in order to discourage union activity , threaten-
ing reprisals for engaging in union activities, or in
any other manner interfering with , restraining, or
coercing employees in the exercise of their rights un-
der Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX H
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 the chance to
give evidence , it has been decided that we have vio-
lated the National Labor Relations Act, and we have
therefore been ordered to post this notice and com-
ply with its terms.
WE WILL, upon request , recognize and bargain
collectively in good faith with United Steelwork-
ers of America, AFL-CIO, as the exclusive rep-
resentative of the employees in the following ap-
propriate unit , with respect to rates of pay,
wages , hours of employment , and other condi-
tions of employment, and embody in a signed
agreement any understanding reached. The bar-
gaining unit is:
All production and maintenance employees,
including leadmen , truck drivers , janitors and
plant clericals employed at Respondent's sev-
en plants : 3910 Washington and 6422 Epper-
son Street, Houston , Texas; San Antonio,
Texas; Dallas, Texas; Lubbock, Texas; Tyler,
Texas; and Shreveport, Louisiana ; excluding
office clericals , draftsmen , inside and outside
salesmen , watchmen , guards , professional em-
ployees and supervisors as defined by the Act.
WE WILL NOT directly or individually bargain
with our employees in the appropriate bargain-
ing unit.
WE WILL NOT change wages , working condi-
tions , or other terms of employment of our em-
ployees in the appropriate bargaining unit with-
out notifying the above-named Union, and
giving it an opportunity to bargain collectively
about such proposed changes; without preju-
dice , however, to any wage increase or other bet-
terment we have granted.
WE WILL NOT coercively question employees
about their or other employees' union sympa-
thies and activities; nor shall we promise em-
ployees benefits in order to discourage union ac-
tivity; nor shall we threaten employees with
reprisals for engaging in union activities; nor
shall we in any other manner interfere with, re-
strain , or coerce employees in the exercise of
rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL, upon unconditional application by
any striker listed in Appendixes A through G
attached to the Administrative Law Judge's De-
cision , offer immediate and full reinstatement to
MOSHER STEEL COMPANY 339
their former jobs or, if those jobs no longer exist,
to substantially equivalent positions, and make
them whole for any wages they may have suf-
fered from 5 days after the strikers' uncondition-
al request for reinstatement and to the date of
our reinstatement or offer of reinstatement.
MOSHER STEEL COMPANY
DECISION
SAMUEL M. SINGER , Administrative Law Judge: This case
was heard before me in Fort Worth and Houston, Texas,
on various dates between January 6 and 29, 1975, pursuant
to charges as amended I and consolidated complaint dated
December 6, 1974. That complaint alleges that Respondent
violated Section 8(a)(1) and (5) of the National Labor Re-
lations Act. All parties appeared and were afforded full
opportunity to be heard, to examine and cross -examine
witnesses , and to introduce evidence. All parties filed
briefs . Upon the entire record and my observation of the
testimonial demeanor of the witnesses , I make the follow-
ing:
FINDINGS AND CONCLUSIONS
maintenance employees of all of those plants. After the
Union's February 7, 1974, bargaining request, the parties
held 18 or 19 bargaining sessions between March 6 and
December 10, 1974. No agreement was reached. A strike,
which commenced on July 22, 1974, is still in progress.
The complaint alleges that at various times during the
negotiations, beginning around May 1,2 Respondent un-
lawfully interrogated employees concerning their union
sympathies and activities, offered them benefits, and
threatened them with reprisals in order to discourage union
adherence, created the impression of surveillance of union
activities, and solicited them to abandon the strike and
withdraw from the Union. It further alleges that Respon-
dent failed and refused to bargain with the Union by uni-
laterally changing wages and working conditions, by indi-
vidually and directly bargaining with employees, and by
offering the Union a wage proposal for less than existing
benefits. Finally, it is alleged that the July 22 strike was
caused and prolonged by Respondent's unfair labor prac-
tices.
B. Alleged Interference, Restraint, and Coercion
1. Trinity Vice President Banks
a. Group meetings
1. BUSINESS OF RESPONDENT ; LABOR ORGANIZATION INVOLVED
Respondent , a Texas Corporation , fabricates steel at the
seven plants here involved . During the past representative
year, its purchases in interstate commerce (from points
outside Texas) exceeded $50,000 . I find that at all material
times Respondent has been and is an employer engaged in
commerce within the meaning of the Act and that assertion
of jurisdiction here is proper.
United Steelworkers of America , AFL-CIO (herein
Steelworkers or Union ), is a labor organization within the
meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and Sequence of Events; the Issues
Respondent Mosher , with headquarters in Houston, is a
wholly owned subsidiary of Trinity Industries, Inc. (herein
Trinity), headquartered in Dallas. During the period here
involved, Milton Eliot was president and Ted Jones indus-
trial relations director of Mosher. Trinity Vice President
Ralph A . Banks serves , among other things , as labor rela-
tions "consultant" for all Trinity subsidiaries . Banks testi-
fied that none of the 25 plants in the Trinity complex oper-
ates under union contract.
Mosher employs 1,006 employees in the Mosher plants
here involved-400 at Houston, 243 at Dallas, 238 at San
Antonio, 52 at Lubbock, 11 at Tyler, and 62 at Shreveport
(Louisiana). Based on an election held on August 30, 1973,
the Regional Director on January 18, 1974, certified Steel-
workers as statutory representative of the production and
Filed June 28 and July 31, 1974.
(i)
The record shows that Banks conducted numerous meet-
ings with employees during the period of negotiations and
strike. Banks testified that he and Company President Eliot
visited the Houston, San Antonio, and Lubbock plants in
late May and early June and arranged to meet with groups
of 15 to 20 employees to report to them on progress of the
pending negotiations and to reassure them that they could
continue to work during a strike. These meetings, lasting 10
to 25 minutes (apparently depending on the number of
questions raised by employees), were also attended by
plant supervisors and managers. According to Banks, he
and Eliot spent 7 to 9 days in the three plants, telling all
groups "basically" the same thing.
(ii)
Houston employee Parker recalled Banks telling his
group that he "didn't think we needed a union . . . be-
cause they could handle their own situation without a
union." McQuarn (another Houston employee) testified
that after Banks told the men that they did not need a
union, he added that he was there to "help." Ward (also a
Houston employee) quoted Banks as telling his group that
the Union was interested only in "getting a contract and
the union dues." Also according to Parker, Banks said that
he now realized that "the employees had been neglected at
Mosher" and the Company was "in the process of studying
to try to straighten this out."
On the question of wages-a prime employee concern
expressed at the meetings-Banks said (also according to
2 All dates are 1974, unless otherwise indicated.
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Parker) that he had no "jurisdiction" over individual wage
increases ; that Respondent "couldn't give a general in-
crease" since that "would be an unfair labor practice"; and
that it could nevertheless raise a particular employee's wag-
es if below the top of the wage scale in his job classifica-
tion. Employee McQuarn quoted Banks as telling his group
that although "some" employees "could get [merit] raises,"
he "couldn't promise" anything "as long as the Union was
there ." Ward , another Houston employee , recalled Banks
as saying that Respondent could not give the employees
increases because of the pending negotiations . San Antonio
employee Flores testified that Banks said there would be
no raises because it could be construed as a "bribe."
Another subject touched on by Banks involved the sign-
ing of a collective agreement. Employees Parker and Mc-
Quarn quoted Banks as telling their groups that he would
"never" sign a contract with a dues checkoff because he
"didn't feel like it would be fair to the men." Wallace (a
Houston employee ) recalled Banks telling his group that
Respondent would not sign a collective agreement "be-
cause of the language the Union wanted in it." According
to Ward (also a Houston employee), Banks said that the
Union had turned down a "decent" company offer; and
that "every time they dust about get one issue settled, they
jumped to something else."
Finally, Banks addressed himself to strike "rumors," tell-
ing groups of employees (as Parker, Wallace, and Ward
testified) that he had been involved "in a lot of strikes but
... hadn't ever seen violence"; and that if the Union
called a strike the plant would remain open and he "would
like to have [the employees] all in to work."
I credit the above-described employee testimony which,
as Respondent recognizes , is "rather consistent ." Indeed,
Banks did not specifically deny that testimony.3 Banks
conceded telling employees that Respondent had "real
strong feelings" against a dues checkoff "since it is up to
each and every man whether he wants to join a union" and
it was for the Union (not Company) "to do their own
bookkeeping." He also conceded stressing that "the gates
would be open" in the event of a strike, assuring employees
that they would have no "problems" reporting to work.
Although telling them that he knew of no one "that was
ever injured from a strike situation," he went on to say that
Trinity Steel trucks now in use by Mosher do show "bullet
holes . . . but there wasn't any drivers in those trucks when
they were shot up." As to questions put to him at meet-
ings-many concerning pay "inequities"-Banks testified
that although he told employees to bring their complaints
to the foremen, he admitted "possibly tell[ing] the foremen
in general terms [about] some of the . . . complaints" and
in some cases also to the plant manager.
Finally, Banks testified credibly that his group discus-
sions included appraisals of the respective positions of the
parties in the pending negotiations-stressing the prohib-
3 I do not, however, credit employee Wallace's additional testimony that
when Banks introduced himself to his group, he characterized himself as a
"strike breaker" who "broke a lot of strikes" before and who "could whip
anybody on the north side." Apart from Wallace's admission that he had
difficulty hearing all of Banks' remarks, it is not likely that Banks, a sophis-
ticated individual and no novice in labor relations, would have made the
flagrant antiunion statement attributed to him
itive nature of the Union's wage proposal and the
Company's need to "remain competitive in order to keep
[the employees'] jobs secure." He credibly testified that
when he alluded to the possibility of loss of jobs in a strike
he spoke in terms of "permanent replacements" and not
discharges.
b. Individual meetings
Glenn Condley, a Shreveport employee, testified credi-
bly that 2 weeks before the July 22 strike Banks "dropped
by [his] work section" and asked him about "the working
conditions and how [he] liked them." When Condley said
he "wasn't making enough money"-only $3.05 an hour-
Banks asked how much he thought he "should be making."
When Condley said $3.50, Banks said "that didn't sound
too bad." On the following Monday Condley got a 45-cent
increase to $3.50 an hour. Respondent's records (Resp.
Exh. 10-1) show a 45-cent "merit" increase for Condley on
July 15.
In May 1974, Banks approached San Antonio employee
Vela in his work area, introduced himself, and asked "how
it was going." When Vela complained that he had not re-
ceived a "merit raise" for a long time, Banks asked whether
he had talked to his supervisor about it. Two or three
weeks later Vela's foreman informed him that he was get-
ting a 28-cent hourly raise. Respondent's records (Resp.
Exh. Ilc) shows a 29-cent "merit" increase for Vela on
May 20.4
About a week before the July 22 strike, Banks ap-
proached Shreveport employee Montgomery at work. Af-
ter talking over Montgomery's "trouble" about insurance,
the conversation turned to the Union. Banks said that
Montgomery, a member of the union employee negotiating
committee, had "80 percent of the men" behind him, that it
would be Montgomery's "responsibility" if [the men] went
out on strike," and that in that event Montgomery "would
be blamed for it."
Around July 3, San Antonio employee Flores talked to
Banks about various benefits he was interested in, i.e., in-
surance, loans out of the pension fund, and a wage in-
crease . Banks told Flores that he "didn't have to go out on
strike" merely because he signed a union card.
On October 9, in the third month of the strike, Banks
approached the Houston plant picket line and told the
pickets, including employee Ernest Stewart, that he had
more employees working in most of the plants than prior to
the strike. Banks then said, "Why don't you-all boys throw
the picket line down and go to work," adding that "we will
treat you-all men fair and we will see that you-all get more
money and better benefits." When Stewart asked whether
4 The findings in the above two paragraphs are based on credited testimo-
ny of General Counsel witnesses Condley and Vela. Although claiming he
told employees that he had "no jurisdiction whatsoever" to get them more
money, Banks admitted that he "encourage[d]" both Condley and Vela to
see their foremen about raises; and that he told Condley's foreman that
Condley had been "complaining that he felt that he wasn ' t being treated
right." I do not credit the testimony of General Counsel witness Buruato, a
San Antonio employee, that in an interview 2 or 3 weeks before the strike,
Banks asked him what he could do " to change" his mind about the Union,
after he (Buruato ) revealed his strong prounion sentiments. Buruato's testi-
mony is unbelievable . (See supra, fn 3 )
MOSHER STEEL COMPANY 341
he had yet signed the bargaining contract , Banks said
"no"; that they had "agreed to some stuff" ; but that "as
for the checkoff clause , we never will agree to that." To
Banks' inquiry what the men expected to get out of the
Union , Stewart said , "Better benefits" and a more sympa-
thetic foreman ." Banks replied , "A contract or a union
wouldn't change nothing ." When Stewart said, "If a union
ain't no good . . . how come you are fighting it so hard,"
Banks just "walked off."5
how he was going to support his family? When Joe Esco-
bedo (Roy's brother) told Malone that he "didn't know
yet" whether he would participate in a strike, Malone stat-
ed that if he was "scared" to go to work he or someone else
would pick him up and bring him to the plant.8 To employ-
ee White he said that "those that went out on strike could
be replaced." When Malone asked employee Toliver
whether he was "going to work or go out on picket," Toliv-
er replied that he "would cross that bridge when [he] got to
it."9
2. Lubbock Plant Superintendent R. A. Malone
The record also shows systematic questioning of employ-
ees by managerial and supervisory officials at
Respondent's plants. Several Lubbock plant employees
credibly testified that during the bargaining negotiations
and prior to the July 22 strike Plant Superintendent Mal-
one inquired about their complaints or "gripes" as to work-
ing conditions and intentions to participate in a strike, if
called. All testifying on this subject indicated that they
were called into the company office-by Malone or his
subordinate Shop Foreman Baker-and asked to state
their complaints. When Roy Escobedo complained about
lack of sick leave, Malone assured him that he "was work-
ing on that." To employee White, who also talked "main-
ly" about sick leave because of recurring back troubles,
Malone said that the unit employees "would have" had
sick leave (like the office workers) "if it wasn 't for the
union ." Employee Bell recalled that Malone brought up
the subject of company picnics, indicating that the Compa-
ny was "thinking about starting it back up again" since
doing away with it in a 1967 United Steelworkers organiza-
tional campaign . Malone also reminded Bell that Lubbock
was the only Mosher plant where employees are "getting
the hams at Christmas." Employee White could not recall a
single instance in his almost 12 years with Mosher when he
was called to the office to voice complaints.
As to Malone's inquiries concerning employees' strike
intentions and attitude , employee Robertson recalled that
Malone had a clipboard in his hand and wrote "some-
thing" on it as he left the work area where Malone ap-
proached him. To Roy Escobedo he said that he "would
lose all of [his] benefits" if he struck and asked Escobedo
5 The above findings are based on credited testimony of Montgomery,
Flores, and Stewart . Banks did not specifically deny Stewart's testimony
regarding Banks' appeal to the pickets to abandon the picket line; Banks
stressed only his discussions concerning the status of the negotiations Al-
luding to the Montgomery incident , Banks claimed to have told Montgom-
ery, a negotiation committeeman , "I feel like that you are a responsible man
and that when it comes down the line of having to make the proper decision
.. you will fulfill the responsibilities of what you think is best for the men
and their families and the Company and the community I think you will do
a good job ." As to Flores, Banks indicated that the major part of the discus-
sion pertained to Flores' inquiry as to whether any of the Trinity plants were
"union ." Banks told him , "We don' t have any [union] contracts anywhere in
our Trinity organization or subsidiaries " When Flores asked, "How about
your plant in Mexico ," Banks answered that Trinity had only a "minority"
interest there , that the "Mexican partners are totally responsible for the
operation" there , and that "it could possibly be union."
6 Two employees who raised money problems (White and Bell ) were told
that they were scheduled to get individual ( merit) wage increases , but the
decision to give these appears to have been made before the interviews in
question.
3. Shreveport Superintendent Carney and Foreman
Tommy Johnson
Credited evidence shows that Shop Superintendent Car-
ney questioned two employees. About a month before the
July 22 strike he called employee Gray to his office and
asked why he liked the Union. When Gray answered that
only the Union could get the employees the money they
required, Carney indicated that he, not the Union, could
do that. Carney then asked whether he was going to "go
out" if the Union called a strike; Gray said he would. Car-
ney commented that "a week or so" after the strike the
men would receive a letter that "if we didn't report back to
work on a certain date that we would be fired" but then
quickly used the word "replaced."
Employee L. D. Coleman testified credibly that on or
about July 1 Carney asked him in the shipping office in the
presence of two other employees (all three working under
Carney's direction) if he knew "who started the Union."
Coleman said he did not know. Carney then put the same
question to one of the other two employees (Pratt).
Employee Montgomery credibly testified and without
contradiction that about a week before the strike (after the
strike vote), Foreman Tommy Johnson approached him in
his work area and asked "what did we figure we would gain
by going out on strike." Montgomery replied "that is yet to
be seen what might come out of it." Johnson went on to
say that if they went on strike "the Company would mail us
a letter and giving us so many days and after that we would
be fired if we didn't come back to work."10
7 Although Escobtdo wore a union emblem on his shirt when accosted, he
stated that he did not know whether he would go out on strike.
8 The above-described conversation took place 2 or 3 days after the strike
vote
9 The above findings are based on credited testimony of employees. Mal-
one did not dispute the remarks attributed to him in employee interviews
concerning complaints and gripes. Although he claimed to have recorded
the employees' "comments" and through his superior (Plant Manager Ken-
dred) forwarded them to the Houston main office, these were not produced
at the hearing, allegedly because no longer available. As to results of inter-
views, Malone testified that Respondent rectified complaints "where we
could take care of them" and if "we couldn't [Respondent would] see if we
could do it at a later time ." Malone denied posing any questions to employ-
ees on their strike intentions and attitude, but his testimony on aspects of
the strike (e.g, when he learned of the strike and whether he discussed with
employees about operation of the plant during the strike ) is vague and
evasive I prefer to credit the testimony of General Counsel's employee
witnesses , whose testimony was consistent in tenor and with the pattern of
conduct directed by other managerial officials at other employees
10 Foreman Tommy Johnson was not called to contradict the statements
attributed to him Montgomery acknowledged that the letter he ultimately
received during the strike stated that he would be "replaced" if he failed to
return by a specified date
342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Dallas Foreman Upchurch
On Saturday before the strike, Foreman Upchurch ap-
proached employee York in his department and asked if he
was going to work on Monday, July 22, the day the strike
was to start. When York said "no," Upchurch asked who
was going to pay his bills-adding that "the plant has been
real nice to you . . . ha[s] given you raises all along." Up-
church also said, "If you don't like your work, why don't
you quit."
About a week before the strike, Upchurch asked employ-
ee Rollings at his machine whether he "was going to go on
strike." When Rollings said he "didn't know," Upchurch
remarked, "Well, if you stick with the Company . . . I
[Upchurch] will see that you [Rollings] will get to the
"t 1top.
5. San Antonio Foremen Nail and Perez
On July 17, Foreman Nail approached employee Borre-
go at his work station, told him about the individual (25
cents an hour) and general (6 percent) wage increases he
was about to give him, 12 and then said that he knew that
about 30 people in Dallas, 200 in Houston, and 30 in Tyler
had voted for a strike. Nail did not indicate the source of
his information.13 Nail also said that the plant gate would
remain open during the strike, that police would be sta-
tioned outside, and that he need not fear going to work.
About a week before the strike, Foreman Perez told em-
ployee Vela in the office where he went to get material)
that he understood that 67 employees had attended the last
union meeting. When Vela said that this was "correct,"
Perez remarked, "Well, that's a pretty good size number
but about how many guys do you think are going to go on
strike when the real thing comes to an end?" He went on to
say that if they went on strike, "a lot of guys are going to
be hurting . . . I know a few guys that used to go out on
strike and they lost their . . . house" and cars. Vela re-
marked, "I'll see what the consequences are after I go on
strike." 14
6. Houston Shop Superintendent Kent Johnson and
Foremen Sedlar, Goeke, and Leddy
On May 16, Foreman Sedlar called employee McQuarn
to his office and asked him what he thought was necessary
"to satisfy the men." McQuarn said "better wages . . . and
better benefits." Sedlar then asked if he would cross the
11 The above findings are based on credited testimony of York and Roll-
ings. Upchurch did not dispute York's testimony . Although testifying on
direct examination that he "couldn' t have" spoken to Rollings about the
strike on the Saturday referred to by Rollings, Upchurch conceded on cross-
examination that he had such conversation with him "probably" closely
before the strike , but claimed that he had merely told Rollings that " the gate
was going to be open" if, as Rollings indicated , he wished to work. Rollings
walked out and is still on strike.
12 Respondent 's records show that these increases were put into effect on
Jul 22 (Resp . Exh. I la, p 1)
The strike votes in these plants took place on July 16 and 17, but the
votes were markedly different (infra, fn. 31).
14 The foregoing findings are based on credited uncontradicted testimony
of employees Borrego and Vela.
picket line if a strike was called; McQuarn said "no."13
On May 23, Shop Superintendent Johnson similarly
asked McQuarn what he thought would "satisfy" the em-
ployees "and make Mosher a better place to work." Mc-
Quarn told him "the same thing" he had told Sedlar. Dur-
ing the conversation, Johnson said that the men "really
don't need a union" and that "the sooner the Union is out
of there it would be a better place for the men."
About 3 weeks before the strike, Foreman Goeke walked
up to employee Wallace and asked him if he was going out
on strike. Wallace said that he did not know. A few days
later, Goeke returned and said that if he went out on strike
"it would be bad for [his] family . . . that [he] would have
no paycheck coming in . . . that [he] would be better off if
[he] would . . . come to work."
In May, Foreman Leddy told employee Ward (who
"happened" to be in Leddy's office), "Jimmy, it is none of
my business, but if the Union calls a strike are you going to
come in and work?" Ward replied, "I'm not going to cross
the picket line."
Also in May, Ward "heard that quite a few of the guys
were getting raises" and asked Leddy for one. When Leddy
said that he could not give him more than 3 cents an hour
("top rate" for his classification), Ward said that he would
have to look for another job. About 2 or 3 weeks later-
after getting the 3-cent increase-Ward threatened to quit
unless he got more money. Within a week, Ward received a
"promotion" with a 20-cent increase.16
On August 18-while the strike was on-employee Har-
ris telephoned Leddy about a disability benefit claim of a
fellow employee (Meyers). As he was getting ready to hang
up, Leddy said that he had something else to talk about.
Leddy said that he had talked to employee Page "about
coming through the picket line" and that Page agreed to do
that if Leddy could "get [Harris] to come in with him."
Harris said that he went out on strike "for better benefits
and . . . wasn't coming back without a contract."17
7. Union resignation letters
Industrial Relations Director Jones testified that shortly
after the strike commenced several employees who had
crossed the picket line and their foreman walked up to him,
told him that they "had heard that they could be fined for
coming to work if they had signed a Union card," and
asked "what are we going to do." Jones immediately con-
tacted Company Attorney Lesh, who read to him a "little
statement"; and took "the information" to Company Presi-
dent Eliot who directed that Jones "better get a letter to all
our troops, the other plant managers, and let them know
what's happening."
Thereafter a letter, dated August 9, signed by Eliot, was
sent to the plant managers and personnel directors of all
plants (Dallas, Houston, San Antonio, Shreveport, Lub-
i5 McQuarn did walk out and was still on strike at the time of the hearing
6 Respondent 's records (Resp . Exh 10J) show a 3-cent "merit" increase
for Ward on May 13 and a 20-cent "promotion" increase on May 17
17 The findings in this section are based on credited uncontradicted testi-
mony of employees McQuarn, Wallace , Ward , and Harris . As in the case of
some other supervisors , those here involved (Sedlar, Johnson, Goeke, and
Leddy) were unexplainedly not called to contradict General Counsel's wit-
nesses
MOSHER STEEL COMPANY 343
bock, and Tyler) telling them that the Union "has threat-
ened all employees who came to work and who had previ-
ously signed a membership card with fines if a contract is
signed"; 18 that the Union can effectuate such threats un-
less a card signer withdraws his membership ; and that they
should advise "all those employees [then] working" that the
following "statement ," mailed to the Union by registered
mail with return receipt requested, would effectively cancel
their membership:
I am an employee of Mosher Steel Company and ef-
fective immediately I wish to cancel my membership
in the United Steelworkers Union.
Jones testified that he told the plant officials, "If the guys
ask you for help, for goodness sake, tell them what they
can do to resign from the Union" and be protected against
fines . According to Jones, while the employees were to use
the above-quoted resignation language , "under no circum-
stances" were the managers to furnish them paper and
stamps or mail the letters.
The record contains numerous letters from employees to
the Union withdrawing membership in language identical
to the Company-prepared statement.
8. Conclusions
I find that although many of the statements attributed to
Respondent's officials constituted noncoercive and pro-
tected speech,19 the credited evidence amply supports the
complaint allegations that Respondent, through its mana-
gerial and supervisory employees:
(a) Questioned employees concerning their union sym-
pathies and activities. Thus, Shreveport Shop Superinten-
dent Carney asked employee Coleman if he knew "who
started the Union." and Carney and other supervisors
(Lubbock Plant Superintendent Malone, Dallas Foreman
Upchurch, and Houston Foremen Sedlar, Goeke, and Led-
dy) interrogated employees as to whether they were going
to go out on strike or picket. Cf. W. A. Sheaffer Pen Com-
pany, Division of Textron, Inc., 199 NLRB 242, 243 (1972);
Farmer's Cooperative Compress, 169 NLRB 290, 292 (1968).
(b) Promised employees benefits in order to discourage
union activity. Thus, Dallas Foreman Upchurch told em-
ployee Rollings that he "will get to the top" if he "stick[s]
with the Company," after Rollings, in answer to
Upchurch's inquiry, said he did not know whether he
would go out on strike.
(c) Threatened reprisals if employees engaged in union
activity, Thus, Shreveport Foreman Johnson warned em-
ployee Montgomery that the Company would notify strik-
ers that they "would be fired" if they failed to return to
18 Union Representative Corley testified that no disciplinary action could
have been taken , and presumably no threats of fines could have been ut-
tered , since the Union's constitution provides for no sanctions against indi-
viduals not yet members of an "established" local and no local was as yet in
existence at Mosher.
19 E.g., Trinity Vice President Banks' statements to employees that they
needed no union , that the Union was only interested in getting a contract,
that the Union 's positions in the negotiations were unreasonable , and that
the plant would remain open and employees would have no "problem"
working in the event of a strike.
work by a specified date. And Vice President Banks point-
edly told Montgomery, a negotiation committeeman, that
he "would be blamed" for the strike, if one was called by
the Union 20
(d) Solicited employees to abandon the strike and with-
draw from the Union. Thus, Banks during the strike (Octo-
ber 9) asked a group of pickets at the Houston plant to
"throw the picket line down and go to work," promising
them "fair" treatment and "more money and better bene-
fits." Also during the strike (August 18) Houston Foreman
Leddy appealed to employee Harris to cross the picket line
and return to work, stating that another employee (Page)
had agreed to do that if Harris did. Finally, shortly after
the strike commenced, Respondent (through President Eli-
ot and Industrial Relations Director Jones) prepared a let-
ter of resignation from the Union to be used by "all those
employees working" and crossing the picket line. This con-
duct, considered in the light of its other coercive and inti-
midatory action, constituted an intrusion into organiza-
tional and protected concerted activity amounting to
unlawful interference under Section 8(a)(1) of the Act. See
Newberry Mills, Inc., 141 NLRB 1167, 1170, 1177 (1963);
International Telephone and Telegraph Corporation v.
N.L.R.B., 382 F.2d 366 (C.A. 3, 1967); N.L.R.B. v. Neider-
man, 334 F.2d 601, 603 (C.A. 2, 1964). 21
I conclude that Respondent by the conduct described
above interfered with, restrained, and coerced its employ-
ees in the exercise of their rights guaranteed by Section 7 of
the Act, thereby violating Section 8(a)(1) of the Act 22
C. Alleged Refusal To Bargain
1. Unilateral wage increases
a. The facts
The complaint alleges that Respondent has unlawfully
refused to bargain by unilaterally, and without prior notice
to and consultation with the Union (the exclusive bargain-
ing representative of its employees), granting employees
201 agree with Respondent that statements such as Foreman Goeke's to
employee Wallace that a strike would "be bad for [his] family" and that he
"would be better off" working-or that of Banks to employees that they
faced "permanent replacement" in a strike-constitute legitimate and "ac-
curate reminder[s] of economic consequences of . . strike absence " (tlh-
nois Bell Telephone Co, 179 NLRB 681, 684 (1969).)
21 Cases relied on by Respondent, such as North American Aviation, Inc,
163 NLRB 863 (1967), are distinguishable. As appears from the excerpt
quoted in Respondent 's brief , the "ministerial aid" there given by the em-
ployer in effecting union withdrawal was not done in an "inhibiting set-
ting" It is noteworthy that the solicitation of pickets to abandon the strike,
attempted by Banks, a high managerial official, was accompanied by prom-
ises of benefits
22 The record does not support the complaint allegation that Respondent
"created the impression" of surveillance of.union activities General Coun-
sel in his brief relies on two incidents wherein San Antonio Foremen Nail
and Perez gave to employees Borrego and Vela the number of employees
they thought had voted to strike or attended a union meeting (supra, sec.
A,5) Since neither supervisor indicated the source of his knowledge, it was
dust as reasonable for the employees to assume that the source was innocu-
ous and lawful (e g, information voluntarily supplied by employees) as was
forbidden and unlawful (i e., surveillance of union activities) Accordingly,
the record does not warrant a finding of unlawful "creat[ion] of impression"
of surveillance. Cf Trojan Steel Corporation, 180 NLRB 704, 705-706
(1970), The Permian Corporation, 189 NLRB 860, 866 (1971)
344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wage increases-including individual "merit" increases
and a general wage increase.
The record establishes that Respondent has for several
years prior to the January 8, 1974, certification of the
Union granted its employees four types of wage raises:
"progress" increases during the first 2 years of service (af-
ter 60 days' probation) as the employee progresses within
his job classification ; (b) "merit" increases after the
employee's initial 2-year period for improved performance
in his classification ; (c) "promotion" increases when
moved to higher classifications; and (d) companywide
"general" increases . An employee's eligibility for a pro-
gress , promotion , or merit increase depends on
management's evaluation of his performance and behavior
and is not "automatic ." Thus, Industrial Relations Direc-
tor Jones testified that "productivity, quality," and atten-
dance are among the factors considered. Dallas Plant
Manager Harwell testified that "behavior , absenteeism
... attitude toward . . . job" are taken into account.
There is "no set . . . policy" as to time or amount of in-
creases; it may be given at any time-in 3 or 6 months or
"never," depending on performance and job attitude. A
"Merit Rating Report," periodically completed by the
employee 's foreman or supervisor , is used to evaluate an
employee's eligibility for a merit, progress, or promotion
increase.
The record also shows that Respondent has granted
"general" increases in the past 9 years. These, either 5 or 6
percent in amount , have been given once a year, in June or
July, but sometimes in other months (March in 1967 and
August in 1970). Vice President Banks testified that these
increases , voted on by the board of directors are not, how-
ever, a "guaranteed thing," i.e., they are given "as long as
economics of the Company still permit."
It is undisputed that during the period of negotiations
(March-December 1974) Respondent granted one general
and numerous individual (progress, promotion, and merit)
wage increases without prior notice to or consultation with
the Union. A 6-percent general increase , posted and an-
nounced to employees on July 12, was made effective July
22. Banks , one of Respondent 's representatives in the
pending negotiations, testified that he did not notify the
Union of the wage increase "[b]ecause it was a past prac-
tice" and Respondent was under no legal obligation to give
it advance notification. He admitted that the Company
failed to make the 6-percent increase a part of its July 1
economic proposal to the Union. He also recalled that the
Union's representative (Speight) had complained during
the July 2 bargaining session that Respondent had not of-
fered the Union "a damn cent."
Although there is conflicting testimony as to the extent
of "merit" wage discussions in the negotiations , it is undis-
puted that the subject was raised in the May 16 bargaining
session by the Union's then chief negotiator , Staff Repre-
sentative Rabun . To Rabun's inquiry as to whether Re-
spondent had a written document setting forth the
Company's policy and practice on merit increases, the
Company's negotiator, Attorney Lesh, responded that his
"understanding was that that practice had not been re-
duced to any form of writing as such." Rabun asked for,
and was later furnished, a computer printout reflecting em-
ployees' current rates to enable him to formulate a new
wage proposal, but this printout did not reflect "merit" as
distinguished from other wage increases 23 Although Lesh
first testified that Rabun stated at the May 16 meeting, "we
know that you have been giving merit increases " and that
Rabun "made no objection whatsoever to the giving of
them," he later admitted that Rabun simply "didn't express
any like or dislike for them." In any event, it is undisputed
that when the Union's attorney (Dixie) entered the negotia-
tions on July 24 he vigorously "question[ed] the legality" of
the "unilateral" merit increases . Dixie expressed "surprise"
that "a company like this" would give wage increases
"while the bargaining was going on" and asked "how the
parties could have reached a contract about wages .. .
with the wage picture constantly changing behind the
Union's back." The Company's position, as expressed by
Lesh at the hearing, was that "this had become an estab-
lished practice on the part of the Company as a result of
which as long as the increase was within the limits of previ-
ous increases in terms of time and amount that there was
no duty to give prior notice and consultation with the
Union."24
b. Conclusions
In N.L.R.B. v. Katz, 369 U.S. 736 (1962), the Supreme
Court held that unilateral changes in wages and working
conditions, without prior consultation with the employees'
bargaining representative, "must of necessity obstruct bar-
gaining, contrary to the congressional policy" and is a vio-
lation of Section 8(a)(5) of the Act, even "without also
finding the employer guilty of overall subjective bad faith"
(369 U.S. at 747). "It will rarely be justified by any reason
of substance." (Ibid.) See also N.L.R.B. v. Crompton-High-
land Mills, Inc., 337 U.S. 217, 223-225 (1949). This does
not mean that the Union's consent is a sine qua non for
effecting wage changes . It does mean that the Union must
be afforded a meaningful opportunity to discuss and nego-
tiate on the theory that joint participation through mutual
consent may, in conformity with the overall statutory pur-
pose , remove possible industrial strife . Cf. Fibreboard Paper
Products Corporation v. N.L.R.B., 322 F.2d 411, 414 (C.A.
D.C., 1963), affd. 379 U.S. 203 (1964). "[I]t is is a mistake
to assume that where there has been such discussion and
fair notice of the employer's intended actions, it is a viola-
tion of the law to institute such changes without securing
the agreement to the Union." N.L.R.B. v. Tex-Tan, Inc.,
318 F.2d 472, 481-482 (C.A. 5, 1963).
23 Lesh testified that the merit increases to employees could be ascer-
tained only by examining the individual files of the 1,100 unit employees.
He further testified that he told Rabun at the May 16 meeting that he saw
no reason why he needed the merit wage information to formulate a wage
proposal . "Employment Cards," showing the wage history of numerous em-
ployees. have been introduced in the record. (Resp. Exhs. 10 and 11; G C.
Exh. 4.) Respondent 's posthearing unopposed application to include the
"Employment Record" of Robert L. Toliver in Resp. Exh. I I is hereby
granted and admitted as Resp . Exh. 11-1.
24 Also in the July 24 meeting , Union Attorney Dixie asked Lesh to "tem-
porarily discontinue" for 30 to 60 days the "merit" increases so as to enable
the Union to formulate a wage proposal , but Lesh answered that " the mo-
rale" in the plants was "bad enough without creating any more unrest by
denying these guys increases when their work deserved it "
MOSHER STEEL COMPANY
The undisputed evidence shows that Respondent has
unilaterally granted its employees a general wage increase
on July 22 and numerous wage increases before and after
that date-at a time when the Union was pressing it for an
acceptable wage offer . Respondent announced its "across-
the-board" increase on July 12, only 11 days after it sub-
mitted its "economic" proposal without including the
forthcoming general wage increase . Here , as in Crompton-
Highland Mills, supra, the employer's action abruptly "cut
off" the "infinite opportunities for bargaining that are in-
herent in an announced readiness of an employer to in-
crease generally the pay of its employees." (337 U.S. at
224.) Here, as there, the employer's unilateral wage action
was "manifestly inconsistent with the principle of collective
bargaining" (id. at 225).
Respondent 's contention that the wage increases were
but continuations of a longstanding practice does not im-
munize its conduct. To be sure, Respondent has granted
one general wage increase every year for the past 9 years,
but, as it admits , it has retained "discretion" of determin-
ing the amount of increase (5 or 6 percent) and the time it
was to take effect (June or July or other months). As to the
individual increases (merit , progress , and promotion), the
Company has retained discretion not only as to amounts
and time but also as to whether it should be withheld-
taking into account such factors as the employee's produc-
tivity, attitude, and behavior. Applicable here is the Su-
preme Court's Katz case, supra. There, as here, the employ-
er unilaterally granted numerous merit increases of varying
amounts. Also as here, the employer contended that its
action was "in line with the company's long-standing prac-
tice of granting [periodic] merit reviews . . . a mere contin-
uation of the status quo." In rejecting this contention the
Court said (369 U.S. at 746):
Whatever might be the case as to so-called "merit rais-
es" which are in fact simply automatic increases to
which the employer has already committed himself,
the raises here in question were in no sense automatic,
but were informed by a large measure of discretion.
There simply is no way in such case for a union to
know whether or not there has been a substantial de-
parture from past practice , and therefore the union
may properly insist that the company negotiate as to
the procedures and criteria for determining such in-
creases.
See also Armstrong Cork Co. v. N. L. R. B., 211 F.2d 843, 847
(C.A. 5); N.L.R.B. v. J. H. Allison & Co., 165 F.2d 766
(C.A. 6); Wald Manufacturing Company, 426 F.2d 1328,
1332-33 (C.A. 6, 1970).25
25 Relying on several Board and court cases, Respondent contends that its
failure to grant the longstanding increases would have constituted an unfair
labor practice . Some of these cases , however, are readily distinguishable.
Thus, in A. H. Belo Corporation, 170 NLRB 1558 (1968 ), the Board 's hold-
ing that the employer 's discontinuance of a longstanding policy to grant
periodic wage increases was unlawful turned on a finding that the discontin-
uance was discriminatorily motivated (170 NLRB at 1565). In upholding the
Board 's finding, the court noted that "it is readily apparent that the Compa-
ny, during the negotiations , did digress from its practice of granting periodic
wage increases , and did so only because of the intrusion of the union." 411
F.2d 959, 970 (C.A. 5, 1969). In General Motors Acceptance Corp, 196
NLRB 137(1972), affd . 476 F 2d 850 (C.A. 1, 1973), the Board 's decision
also turned on discriminatory motivation ("upon advent of the Union [Res-
345
Respondent's contention that the Union did not com-
plain about its unilateral increases "for almost four
months" after the negotiations commenced (March 6),
even if true,26 is no valid defense. To begin with, Respon-
dent continued to ignore the Union and granted extensive
merit increases even after the Union's attorney (Dixie) ve-
hemently protested its unilateral action at the July 24 meet-
ing-the first he attended. Indeed, Respondent even reject-
ed a union demand to temporarily suspend individual
increases for 30 to 60 days in order to enable the Union to
formulate a new wage proposal. In any event, inaction on
the part of the Union is not tantamount to acquiescence or
waiver. As stated in Armstrong Cork Co. v. N.L.R.B., 211
F.2d 843, 848 (C.A. 5):
We further find no justification for [the Company's]
action regarding the wage increases from the union's
failure timely to object, or specifically to request bar-
gaining on these issues, nor can we accept its excuse
that the union would have rejected a similarly offered
wage increase as inadequate. The statutory require-
ment of good faith bargaining is not subject to waiver
through action or inaction of parties to a labor contro-
versy, and may not be satisfied by speculative assump-
tions as to acceptance or refusal of an offer based on a
party's attitude in prior negotiations.
"[W]aiver of rights under the Act must be clearly estab-
lished." N.L.R.B. v. Lloyd J. Taylor d/b/a/ Taylor Foundry
Co., 338 F.2d 1003, 1003-04 (C.A. 5, 1964).
Nor is there any merit in Respondent's further conten-
tion that it was at all times willing to confer with the Union
about the particular wage action it had already taken. The
gravamen of the violation here is Respondent's failure to
give the Union advance notice of contemplated wage ac-
tion-a mandatory subject of bargaining. "Save in special
circumstances not present here, the bargaining philosophy
of the Act requires that good-faith negotiations precede
rather than follow changes in bargainable conditions of
pondent ] suspended merit increases which it would otherwise have given to
its employees"). Similarly, in J. J. Newberry, 183 NLRB 602 (1970), it was
held that the -increases were "suspended because of the union 's campaign".
Moreover , it was noted that that case involved a union not yet selected as
majonty representative and therefore one with which the employer was not
yet "under a duty to bargain" ( 183 NLRB at 605). In Udylite Corporation,
183 NLRB 163, 170 (1970), affd. on this point 455 F.2d 1357 (C.A.D.C.,
1971), the Board's 8(a)(1) and (3) findings were likewise predicated on the
ground that the withholding of ment increases was discnminatonly motivat-
ed.
To be sure , there is language in other cases cited by Respondent , suppor-
tive of its view that the discontinuance of a longstanding wage practice
constitutes an unlawful change in terms and conditions of employment As
able counsel for Respondent points out, the First Circuit Court in General
Motors Acceptance Corp, supra, 476 F 2d at 854-55, so indicated-although
it affirmed the Board 's finding that the discontinuance was unlawful be-
cause it was "in reprisal for the unionization ... and for the purpose of
eliminating the Union " The Second Circuit Court was even more definitive
in N L R.B v. Patent Trader, Inc, 415 F 2d 190 (1969) and 426 F.2d 791
(1970), where , in reversing a Board finding that the unilateral wage increases
were unlawful (167 NLRB 842, 851, 853), it observed that "it is difficult to
see how continuance of a wage increase policy which the employees would
otherwise expect can be viewed to obstruct bargaining negotiations merely
because it continues , as before , during those negotiations" (415 F.2d at 200).
In my view , these pronouncements and decisions are contrary to the over-
whelming weight of authority. In any event, I am necessarily bound by
Board decisions.
26 Union Representative Rabun claimed otherwise
346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment." Central Illinois Public Service Company, 139
NLRB 1407, 1417 ( 1962), enfd . 324 F.2d 916 (C.A. 7,
1963). Clearly , talking about a decision after it is a fait
accompli is not the same as bargaining about it . See also
Granite City Steel Co., 167 NLRB 310, 316 (1967).
I conclude that Respondent 's unilateral wage increases
to employees-general and individual-constituted unila-
teral changes in employment conditions and, hence , refus-
als to bargain collectively within the meaning of Section
8(a)(5) and ( 1) of the Act.
2. Dealings with employees
a. The facts
The complaint alleges that Respondent has also refused
and failed to bargain with the Union by "directly and indi-
vidually" dealing with employees concerning wages and
working conditions. As already shown (sec. B I through 6),
the record is replete with instances where managerial and
supervisory officials have questioned employees about
their "gripes" and complaints . In some cases, the discus-
sions resulted in corrections , i.e., improved wages and
working conditions.
Thus, Vice President Banks' group meetings in late May
and early June (in which he told at least one gathering that
he was aware that "the employees had been neglected,"
that he was there to "help," and was trying "to straighten
... out" problems) were followed by individual meetings
between supervisors and employees . Banks himself asked
Shreveport employee Condley in one such individual meet-
ing (supra, sec. B,1,b.) how he "liked" his working condi-
tions. When Condley said he "wasn't making enough mon-
ey," Banks asked how much he thought he "should be
making ." When Condley mentioned a figure 45 cents
above his pay rate, Banks said that this "didn't sound too
bad" and within a matter of days Condley got the 45-cent
increase . Banks had a similar discussion with San Antonio
employee Vela, who, like Condley, was given a "merit"
increase shortly after complaining to Banks . Although de-
nying that he issued any "instructions" to supervisors to
give these employees any increases , Banks admitted that he
"encourage[d]" both Condley and Vela to see their fore-
men about raises and that he relayed Condley's complaint
to his (Condley's) foreman.
Another incident involving Banks is his October 19 dis-
cussion with a group of employees at the Houston picket
line (supra, sec. A,l,b.). In appealing to the pickets to
"throw the picket line down and go to work," Banks prom-
ised them "fair" treatment and "more money and better
benefits."
The record shows that Lubbock Plant Superintendent
Malone had discussions with at least three employees con-
cerning working conditions-after all three were called to
his office to voice complaints (supra, sec. B,2). Thus, he
discussed sick leave with employees White and Roy Esco-
bedo, telling the latter that he "was working on that" prob-
lem. To employee Bell, he stated that the Company would
resume holding the picnics they had done away with in an
earlier organizational campaign . Malone conceded that the
Company rectified complaints "where we could take care
of them" and if "we couldn't [Respondent would ] see if we
can do it at a later time."
Other credited evidence showing discussions with em-
ployees concerning working conditions includes inquiries
of Houston Foreman Sedlar and Superintendent Johnson
to employee McQuarn what he thought was necessary "to
satisfy the men"; McQuarn told them "better wages .. .
and better benefits" (supra, B,6). Another foreman , Leddy,
discussed employee Ward 's request for a wage increase.
When Leddy said he could not give him more than 3 cents
an hour, Ward threatened to quit . Shortly afterward Ward
was given a 20-cent "promotion" increase (supra, B,6).
b. Conclusions
Section 9(a) of the Act states that the majority represen-
tative of employees in the appropriate unit shall be the
"exclusive representative" of employees in such unit for
purposes of collective bargaining. "The obligation [to bar-
gain with the chosen representative] being exclusive . . . it
exacts `the negative duty to treat with no other.' " Medo
Photo Corp. v. N.L.R.B., 321 U.S. 678, 683-84 Banks' and
other managerial officials' discussions with employees con-
cerning wages and working conditions, mandatory subjects
of bargaining, were in plain violation of Section 8(a)(5), for
"[t]he Act not only protects the employees from the direct
economic effect of the employer's unilateral action, but
also forbids the bypassing of the collective bargaining
agent, for this would undermine the union's authority by
disregarding its status as the representative of the employ-
ees." Leeds & Northrup Co. v. N.L.R.B., 391 F.2d 874, 877
(C.A. 3, 1968). Accord: N.L.R.B. v. Tulsa Sheet Metal
Works, Inc., 367 F.2d 55, 59-60 (C.A. 10, 1966); N.L.R.B.
v. Union Mfg. Co., 179 F.2d 511, 512-513 (C.A. 5);
N. L.. .R.B. v. U. S. Sonics Corp., 312 F.2d 610, 615 (C.A. 1,
1963).27
27 Cases relied on by Respondent, such as Uarco, Incorporated, 216 NLRB
No. 2 (1974), and Sears Roebuck & Co., 182 NLRB 491 (1970), pose the
issue , not here under consideration, whether solicitation of employees in an
organizational drive-constitute interference with organizational rights viola-
tive of Sec. 8(a)(l) of the Act As Respondent properly points out, among
the factors to be considered in determining this question are the employer's
motive for the solicitation and existence of past practice in ascertaining
grievances. However, these factors are irrelevant in determining the issue
here-i.e., whether the solicitations and accompanying exchange between
employee and employer representative constitute individual dealings.
Where, as here, a majority representative has been chosen by employees, it
is incumbent upon the employer to negotiate with that representative con-
cerning proposed or intended changes in working conditions and wages-
irrespective of the employer's past practice or his motive for seeking out
employees. In any event, one of the prime factors in determining whether a
grievance solicitation is unlawful under Sec. 8(a)(I) is whether the employee
had been assured, led to believe, or promised (expressly or impliedly) that
his grievance would be corrected. That employees here questioned had good
reason to believe that their grievances would be corrected is evident from
Banks' assurances, even before the individual solicitations, that he was there
to "help" and "straighten ... out" problems, by the fact that complaints
about wages were usually followed by increases, and by express promises of
corrections as in Banks' assurances to pickets that they would be getting
"more money and better benefits" on returning to work and in Plant Super-
intendent Malone's statement to Roy Escobedo that he "was working" on
his complaint about sick leave
MOSHER STEEL COMPANY
3. The alleged unilateral change in rest periods
a. The facts
The complaint alleges that Respondent also unlawfully
refused to bargain by unilaterally, and without consulta-
tion with the Union , promulgating and implementing in
June 1974 "written rules regulating work breaks and rest
periods" for unit employees . This allegation is predicated
on the testimony of employee C. H. Jones to the effect that
in March or April 1973 Respondent changed its break poli-
cy from two 10-minute to two 5-minute rest periods on his
day shift; and that at the end of May or early June "it went
... again back to 10 minutes ." Jones identified a June 4,
1974, notice, entitled "Shop Rest Periods" which states that
"In order to clarify the present, apparent confusion regard-
ing shop rest periods (breaks), the procedure outlined be-
low will be followed effective June 10, 1974." The notice
then specifies two 10-minute breaks for every 8-hour shift.
Plate Division Superintendent Oglesby , Jones ' supervi-
sor, testified that the break periods before and after June
were the "same"-two 10 -minute breaks prior to June
1974; and that the only change wrought by the June 4,
1974, notice was that it set one uniform and fixed rest peri-
od for all employees "instead of having it scattered over a
long period of time" (i.e., varying 10-minute breaks select-
ed by employees between 8:30 and 9 : 30 a.m.).
I credit the testimony of Oglesby, who impressed me as a
more reliable witness than Jones . As Oglesby testified, it
was physically impossible for Jones , a crane operator, to
confine his break to 5 minutes prior to June 1974.28 And
while steadfastly adhering to the existence of the pre-June
5-minute break rule, he admitted that "a lot of people were
taking a 10-minute break ." Also noteworthy is that not one
other employee among the numerous ones called by Gen-
eral Counsel testified to the existence of the alleged 5-min-
ute rule.
b. Conclusion
I find and conclude that the complaint allegation that
Respondent unilaterally promulgated and implemented a
change in breaks or rest periods , in violation of Section
8(a)(5) of the Act, is not supported by credited evidence.
4. The company wage proposal
a. The facts
The complaint further alleges that Respondent 's refusal
to bargain is evidenced by its offer to the Union of a wage
proposal "which provided for terms and conditions of em-
ployment less than that existing at the time the proposal
was made." In support of this allegation General Counsel
submitted a document (G.C. Exh. 40), prepared by a Hous-
28 Oglesby explained : "If [Jones] was up in the crane and this is his job,
[the] time he would go down to the column where he could come down the
ladder and walk to the machine, get whatever he was going to have, a soda
water , Fritos or something , he couldn 't even walk back and get up in the
crane , let alone eat . . . what he had bought."
347
ton employee (Mikeska, a welder now on strike) from com-
puter printouts (showing employee wage rates) and
Respondent's contract proposal, purporting to show that
certain employees were making more than the proposed
top rates in their classifications. Mikeska admitted that his
comparison covers only a select group-employees (strik-
ers and nonstrikers) he happens to know personally.
Industrial Relations Director Jones, who prepared
Respondent's wage proposal, satisfactorily showed that
some of Mikeska's comparisons are misleading or errone-
ous because Mikeska had placed employees in wrong clas-
sifications. Thus, employee Robert Olbrych, whom Mikes-
ka classifies as "plant clerk-senior," earning $4.46 an hour
and falling within Respondent's proposed $3.21-$3.70 pay
range, is in fact a "shop office manager." As to employee
James Grant, whom Mikeska correctly shows as a "Grade
4 warehouseman" falling within a proposed $2.55-$3.20
wage range, the fact is that Grant was at one time in a
higher classification but was moved to the lower paying job
(Grade 4 warehouseman) because he had "some difficulty
in the department"-without, however, requiring him to
take a reduction in his $3.43 hourly pay. As to other em-
ployees, such as Cykala (a Class B fabricator) and Lampe
(painthouseman), for whom Mikeska shows 7 and 9 cents
over Respondent's proposed top wage rates, those employ-
ees had been making several cents above the established
top rates even before Respondent's wage proposal submis-
sion.29 As to the several pennies (1 to 3 cents) above the
proposed company top rates shown by Mikeska for other
employees, the record shows that these minor discrepancies
are the result of Jones' practice of rounding out rate
ranges-i.e., an employee earning $2 in a price range with
a $2.10 top rate will be shown to have the $2.10 top rate
even though he is being paid $2.12 after receiving a 6-per-
cent (12-cent) general wage increase.
b. Conclusion
I find and conclude that the record does not support the
complaint allegation that Respondent violated Section
8(a)(5) of the Act by offering "terms and conditions of
employment" (specifically wage rates ) less than those ex-
isting at the time of making such offer.
D. The Strike
As already noted, the Union commenced to strike
Respondent's plants on July 22. The complaint alleges that
the strike was caused or prolonged by Respondent's unfair
labor practices.
The record establishes that employees in each of the sev-
en plants held a meeting prior to the strike;30 that union
representatives at each reported on the negotiations and
discussed with employees what they regarded to be Com-
29 Jones explained that "the only way" employees like Cykala and Lampe,
not promoted to higher -paid classifications because not found meritorious,
"can get raises is through a general [increase]", that "these two men haven't
had a merit increase in many years", and that they began to exceed the top
wage rates when their accumulated (annual) 5- or 6-percent wage increases
put them over and beyond the top rates.
30 July 15 at Lubbock; July 16 at Houston, Dallas, and Shreveport; and
July 17 at San Antonio and Tyler. Houston houses two plants.
348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany "unfair labor practices"; and that at the end of each
meeting a motion was carried byan overwhelming majority
to authorize a strike.31 Thus, the testimony of Union Rep-
resentative Corley, who conducted the meeting at Houston,
shows that he "explained" to the assembled employees
"what 8(a)(1)'s and 8(a)(5) meant" in the unfair labor prac-
tice charges previously filed (June 28) by the Union. Corley
complained about the Company's "sham bargain-
ing"-pointing to the "liberal wage increases" it had been
giving employees while unwilling to discuss or yield on eco-
nomic issues in the negotiations ; referred to the 6-percent
"across-the-board" wage raise recently posted by Respon-
dent (July 12) "without consultation with the Union"; and
"reminded" them of the meetings held by President Eliot
and Vice President Banks with employees at Houston and
other plants and "group meetings" between foremen and
employees which the Union regarded as unfair, coercive,
and intimidatory. Also discussed were the respective posi-
tions of the Union and Respondent in the negotiations and
the employees ' dissatisfaction with existing company bene-
fits (e.g., pension, insurance , sick leave). Finally, one of the
other union representatives present (Ray) "explained the
difference between an unfair labor practice strike and an
economic strike."
The record shows that the Union's other representatives
covered much of the same ground at the other plants-
including the individual ("merit") and general 6-percent
wage increases granted employees during the negotiations,
the "interrogating" of employees by supervisors, other mat-
ters they regarded as unfair labor practices (e.g.,
Respondent's refusal to budge on checkoffs and the alleged
unilateral change in breaks or rest periods ); and the pro-
gress, or lack of progress , in the negotiations.
2. Conclusion
It is well settled that a strike caused in whole, or in part,
by an employer 's unfair labor practices is an unfair labor
practice strike and the strikers are entitled to reinstatement
upon application, even if to do so requires the employer to
discharge the strikers' replacements . Mastro Plastics Corp.
v. N. L. R. B., 350 U . S. 270, 278 (1956); N. L. R. B . v. Safeway
Steel Scaffolds Company, 383 F .2d 273 , 280-281 (C.A. 5,
1967). There is no doubt in this case , and I find , that the
strike was from its inception on July 22 , 1974, an unfair
labor practice strike , caused , among other things , by com-
pany conduct herein found unlawful-unilateral wage in-
creases ("merit" and "general"), direct dealings with em-
ployees , and interference , restraint, and coercion . The fact
that the strike may have been motivated , in part, by eco-
nomic objectives , does not prevent it from being an unfair
labor practice strike , so long as Respondent 's unlawful
conduct was a substantial contributory cause . Safeway
Steel Scaffolds Co., supra, 383 F .2d at 280-81; San Antonio
Machine & Supply Corporation, 363 F .2d 633 , 641 (C.A. 5,
1966); N. L.R.B. v . Louisville Chair Company, Inc., 385 F.2d
922, 929 (C.A. 6, 1967).
31 By a 176-to-1 vote at Houston , 160-to-0 at San Antonio, 43-to-2 at
Dallas, 41-to-1 I at Shreveport , 6-to-2 at Tyler, and the "unanimous" vote of
the 15 or 20 employees present at Lubbock.
CONCLUSIONS OF LAW
.1. Respondent is an employer engaged in commerce
within the meaning of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. The following employees constitute a unit appropriate
for purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All production and maintenance employees, including
leadmen, truckdrivers, janitors and plant clericals em-
ployed at Respondent's seven plants: 3910 Washing-
ton and 6422 Epperson Street, Houston, Texas; San
Antonio, Texas; Dallas, Texas; Lubbock, Texas; Tyl-
er, Texas, and Shreveport, Louisiana, excluding office
clericals, draftsmen, inside and outside salesmen,
watchmen, guards, professional employees and super-
visors as defined by the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
aforesaid unit within the meaning of Section 9(a) of the
Act.
5. By unilaterally granting wage increases, without prior
consultation and bargaining with the Union, and by direct-
ly and individually dealing with employees concerning
wages and working conditions, Respondent has engaged in
and is engaging in unfair labor practices within the mean-
ing of Section 8(a)(5) and (1) of the Act.
6. Respondent has not violated Section 8(a)(5) and (1)
of the Act by unilaterally changing breaks or rest periods;
nor by offering a wage proposal providing for less than
existing benefits.
7. Respondent has interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed
in Section 7 of the Act, in violation of Section 8(a)(1) of the
Act, by coercively questioning employees about their union
sympathies and activities; by promising them benefits in
order to discourage union activity; by threatening them
with reprisals for engaging in such activity; and by encour-
aging and soliciting employees to abandon their strike and
withdraw from the Union.
8. Respondent has not violated Section 8(a)(1) of the
Act by conveying the impression of surveillance of union
activities.
9. The strike, which commenced on July 22, 1974, was
caused and prolonged by Respondent's unfair labor prac-
tices, and hence was and is an unfair labor practice strike.
10. The unfair labor practices described above in para-
graphs 5 and 7 affect commerce within the meaning of
Section 2(6) and (7) of the Act.
THE REMEDY
Respondent, having engaged in unfair labor practices
within the meaning of Section 8(a)(1) and (5) of the Act,
should be required to cease and desist therefrom and take
certain affirmative action to effectuate the policies of the
Act. Such affirmative action will include a requirement
that, upon request, Respondent recognize and bargain col-
lectively with the Union as the exclusive representative of
MOSHER STEEL COMPANY
all its employees in the appropriate unit with respect to
rates of pay, wages , hours, and other terms and conditions
of employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
Respondent should also be required to offer , upon un-
conditional application , reinstatement to all strikers named
in Appendixes A through C [omitted from publication] to
their former jobs or, if those jobs no longer exist, to sub-
stantially equivalent positions, without prejudice to their
seniority or other rights and privileges , discharging , if nec-
essary, any replacements in order to provide work for the
strikers ,32 and to make whole all said strikers for any loss of
earnings they may have suffered by reason of the discrimi-
nation against them , by payment to each of a sum of mon-
ey equal to that which each normally would have earned as
wages from 5 days after the strikers ' unconditional request
for reinstatement to the date of their reinstatement or
Respondent's offer of reinstatement , less the net earnings
of each during such period, to be computed on a quarterly
basis in the manner established by the Board in F. W.
Woolworth Company, 90 NLRB 289, 291-294 (1950). Inter-
est shall be added at the rate of 6 percent per annum. his
Plumbing & Heating Co., 138 NLRB 716 (1962).
In view of the nature of the unfair labor practices com-
mitted Respondent should also be required to cease and
desist from infringing in any manner upon the rights guar-
anteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact and con-
clusions of law and upon the entire record , and pursuant to
Section 10(c) of the Act , I hereby issue the following:
ORDER 33
Mosher Steel Company, Shreveport, Louisiana, and
Houston, San Antonio, Dallas, and Lubbock, Texas, its
officers , agents , successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize and bargain collectively in
good faith with United Steelworkers of America, AFL-
CIO, as the exclusive bargaining representative of all the
employees in the appropriate unit set forth in paragraph 3
of the Conclusions of Law herein with respect to rates of
pay, hours of employment, and other terms and conditions
of employment.
(b) Directly or individually bargaining with its employ-
ees in the appropriate unit.
(c) Changing wages, working conditions , or other terms
of employment of its employees in the appropriate unit
32 The record does not disclose whether any strikers have as yet applied
for reinstatement . This, of course, is a matter determinable in the compli-
ance proceeding.
33 In the event 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 which follows herein shall, as provid-
ed in Sec . 102.48 of the Rules and Regulations , be adopted by the Board
and become its findings , conclusions, and Order , and all objections thereto
shall be deemed waived for all purposes.
349
without notifying the Union and giving it an_ opportunity
to bargain collectively about such proposed changes, with-
out prejudice however, to any economic benefit or better-
ment heretofore granted.
(d) Coercively questioning employees about their union
sympathies and activities, promising them benefits in order
to discourage union activity, threatening reprisals for en-
gaging in union activities, encouraging or soliciting em-
ployees to abandon strike activity and withdraw from their
union, or in any other manner interfering with, restraining,
or coercing employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action, necessary to
effectuate the policies of the Act:
(a) Upon request, recognize and bargain collectively in
good faith with United Steelworkers of America, AFL-
CIO, as the exclusive representative of the employees in the
above-described unit with respect to rates of pay, wages,
hours of employment, and other terms and conditions of
employment, and embody in a signed agreement any un-
derstanding reached.
(b) Offer, upon unconditional application, to all strikers
listed in Appendixes A through G [omitted from publica-
tion] immediate and full reinstatement to their former jobs
or, if those jobs no longer exist, to substantially equivalent
positions, without prejudice to their seniority or other
rights and privileges, and make them whole for any loss of
pay each may have suffered in the manner set forth in
"The Remedy" section of this Decision of which this Order
is a part.
(c) Preserve and upon request, make available to the
Board or its agents, for examination and copying, all pay-
roll records, social security payment records, timecards,
personnel records and reports, and all other records of
backpay due under the terms of this Order.
(d) Post at its seven plants 34 copies of the attached no-
tice marked "Appendix H."35 Copies of said notice, on
forms provided by the Regional Director for Region 23,
after being duly signed by Respondent's authorized repre-
sentative , shall be posted by Respondent immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced, or covered
by any other material.
(e) Notify said Regional Director, in writing, within 20
days from the date of this Order, what steps have been
taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be dismissed in
all other respects.
34 3910 Washington and 6422 Epperson Street, Houston , Texas, San An-
tonio, Texas; Dallas, Texas; Lubbock, Texas, Tyler, Texas; and Shreveport,
Louisiana.
35 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board "