Billups Western Petroleum Co.

National Labor Relations Board - Board DecisionsFeb 19, 1968

169 N.L.R.B. 964 (N.L.R.B. 1968)

964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Billups Western Petroleum Company and Oil, Chemical and Atomic Workers International Union, AFL-CIO. Case 15-CA 2917 February 19, 1968 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On July 12, 1967, Trial Examiner William Seagle issued his Decision in the above-entitled proceed- ing, finding that the Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. The Trial Examiner also found that the Respondent had not engaged in a certain unfair labor practice. Thereafter, the Respondent filed ex- ceptions to the Trial Examiner's Decision and a supporting brief. The General Counsel filed a brief in support of the Trial Examiner's Decision. 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings,I conclusions,2 and recommen- dations of the Trial Examiner, except as herein modified. As more fully set forth in the attached Trial Ex- aminer's Decision, Respondent's employees at its Kenner Terminal went out on strike following a se- ries of bargaining sessions conducted in bad faith by the Respondent. Respondent has consistently refused to engage in anything more than surface bargaining. Respondent foreshadowed its failure to bargain in good faith when, during the preelection campaign period, its executive vice president and other officers stated to employees that the Com- pany would not sign a contract with the Union if it did gain certification. That Respondent in fact set out on such a course of surface bargaining, after the Union was certified, was demonstrated by its at- tempts, through threats, promises, and renewed predictions that it would not sign a contract with the Union, to persuade its employees to abandon their collective-bargaining representative. Respondent's intention to engage in no more than surface bargain- ing was further shown by the fact that its bargaining representatives had no meaningful bargaining authority, making them little more than a conduit for communications to and from its president. In a sense, except for the second meeting when Respond- ent's president was himself present, Respondent did not truly attend the scheduled negotiating ses- sions. Additionally, Respondent's lack of good faith in going through the motions of bargaining was illus- trated by its unilateral offering of a new insurance plan to employees after the commencement of bar- gaining and its similar conduct in subcontracting unit work without even informing the union representatives with whom it was then purportedly engaged in collective-bargaining negotiations. We are convinced that the above-noted Section 8(a)(5) conduct of the Respondent played a sub- stantial role in inducing the walkout by its em- ployees. The strike was certainly caused, at least in part, by the inability of the parties to reach agree- ment. We cannot separate the failure to reach agree- ment from the bad-faith bargaining of the Respond- ent. The Respondent's conduct effectively frus- trated the legitimate desire of its employees to en- gage in collective bargaining. The employees' walk- out was a response to the Respondent's 8(a)(5) conduct. For the foregoing reasons, we agree with the Trial Examiner's conclusions that the unfair labor practice conduct of the Respondent precipitated the strike and that Respondent's refusal to reinstate those unfair labor strikers requesting reemployment violated Section 8(a)(3) of the Act. Accordingly, we adopt the Recommended Order of the Trial Examiner, except as herein modified, which provides reinstatement and backpay for those strikers who had unconditionally offered to return to work. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner, as modified below and hereby orders that the Respondent, Bil- lups Western Petroleum Company, New Orleans, Louisiana, its officers, agents, successors, and as- signs, shall take the action set forth in the Trial Ex- aminer's Recommended Order: 1. Paragraph 2(c) of the Trial Examiner's Recommended Order is hereby amended by sub- stituting the words "on forms provided" for the words "to be furnished." 2. Substitute the attached Notice to All Em- ployees as Appendix in place of the one attached to the Trial Examiner's Decision. I In the absence of exceptions thereto, we adopt pro forma the Trial Ex- aminer's finding that Station Manager Forty's comments to employee Pitts, while the latter was engaged in picketing, did not violate 8(a)(1) of the Act. 2 We agree with the Trial Examiner' s conclusion that the Respondent did not bargain in good faith with the Union and thereby violated 8(a)(5) of the Act. However, in reaching this result, we do not consider Respond- ent's failure to plead inability to pay higher wages as a relevant factor. 169 NLRB No. 147 BILLUPS WESTERN PETROLEUM COMPANY APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that: WE WILL NOT solicit our employees to bar- gain individually with us in derogation of the Oil, Chemical and Atomic Workers Interna- tional Union, AFL-CIO's status to represent the employees in the unit described below, nor will we make any promise to them for doing so. The unit consists of all the production and maintenance employees at our Airline Highway Terminal, New Orleans, Louisiana, otherwise known as Kenner Terminal, includ- ing truckdrivers but excluding all other em- ployees, professional employees, watchmen, guards, and all supervisors as defined in the Act. WE WILL NOT discourage membership in the Union by discriminating in any manner against our employees with respect to their hire or tenure of employment or any term or condi- tion of their employment. WE WILL NOT subcontract the trucking routes or change the insurance benefits of our employees in the unit described above without first bargaining about such changes with the Union, nor will we make any other unilateral changes in our employees' terms or conditions of employment. WE WILL NOT, in any manner, interfere with, restrain, or coerce our employees in the exer- cise of their right to self-organization, to form, join, or assist a labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for mutual aid and protection or to refrain from any such activities. WE WILL offer to James Curry, James Patrick, Tilford Bayham, Sabra Pitts, and Ed- ward Williams their former or substantially equivalent jobs, without prejudice to seniority or other employment rights and privileges, and WE WILL pay each of them for all losses suf- fered because of our discrimination against them. WE WILL, upon request, bargain collectively with the Oil, Chemical and Atomic Workers International Union, AFL-CIO, in the unit described above as to wages, hours, and other terms and conditions of employment. All our employees are free to become or remain, or refrain from becoming or remaining, members of the above-named or any other labor organization. Dated By 965 BILLUPS WESTERN PETROLEUM COMPANY (Employer) (Representative) (Title) Note: We will notify any of our striking em- ployees if presently serving in the Armed Forces of the United States of their right to full reinstate- ment upon application in accordance with the Selective Service Act and the Universal Military Training and Service Act, as amended, after discharge from the Armed Forces. This notice must remain posted for 60 consecu- tive days from the date of posting and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE The charge in this case was filed on September 13, 1966, and an amended charge was filed on January 20, 1967. The complaint was issued by the Regional Director on February 17, 1967, and an amendment to the com- plaint was issued by him on April 13, 1967. It was alleged in the complaint, as amended, that the respondent had violated Section 8(a)(5), (3), and (1) of the Act by failing to bargain in good faith with the union, en- gaging in unilateral actions while bargaining was still con- tinuing, with the result that a strike was precipitated; by failing to reinstate five of the strikers although they had unconditionally offered to return to work; and by engag- ing in various acts of interference, restraint, or coercion during the negotiations with the union. Having been duly designated as Trial Examiner, I, Wil- liam Seagle, held a hearing on the issues in this case at New Orleans, Louisiana, on April 17, 18, 19, and 20, 1967. Subsequent to the hearing, counsel for the General Counsel and for the respondent filed briefs with the Trial Examiner. I Upon the record so made, and in view of my observa- tion of the demeanor of the witnesses, I hereby make the following findings of fact: 1. THE RESPONDENT Billups Western Petroleum Company (hereinafter referred to as Billups) is a corporation duly authorized to 1 Under date of May 26, 1967, counsel for the respondent also made a motion to correct the transcript in various respects The motion is hereby granted 966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD do business in the State of Louisiana. At all material times , Billups has been engaged in the business of operat- ing petroleum truck terminals and transporting and dis- tributing fuels and related products to customers in Loui- siana , Texas, Mississippi , Alabama, and Tennessee. The respondent's Airline Highway Terminal located at Kenner, Louisiana (hereinafter referred to as the Kenner terminal), is, however, the only facility of the respondent involved directly in the present proceeding. Some 49 per- cent of the stock of the respondent is held by the Signal Oil and Gas Company, which is headquartered at Los Angeles, California, but operates also in Houston, Texas. During the past 12 months, which is a representative period, the respondent, in the course and conduct of its business operations, received in excess of $500,000 from the performance of services to its customers, and, during the same representative period, the respondent received in excess of $50,000 for services performed for customers located outside the State of Louisiana. The respondent admits that at all material times it has been an employer engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act, and I so find. II. THE LABOR ORGANIZATION INVOLVED Oil, Chemical and Atomic Workers International Union , AFL-CIO (hereinafter referred to as the union or the OCAW) is a labor organization which in 1966 suc- ceeded in organizing the production and maintenance em- ployees , includind the truckdrivers , at the respondent's Kenner terminal.2 III. THE UNFAIR LABOR PRACTICES A. The Certification of the Union and the Commencement of Collective Bargaining On January 26, 1966,3 in a secret-ballot election con- ducted by the Regional Director of the Board' s Region 15, a majority of the employees in the Kenner terminal bargaining unit designated and selected the union as their collective-bargaining representative, and on February 3, the said Regional Director certified the union as their col- lective-bargaining representative. At the time of the certification, and throughout the sub- sequent negotiations , there were only eight employees in the bargaining unit . Six of these employees were truckdrivers, whose names were James Curry, James Patrick, Edward R. Williams, C. D. Willis, Tilford Bayham, and Elmo Speights. The other two employees, William A . Bounds and Sabra Pitts, were mechanics, the first being rated as a mechanic and the second as a mechanic's helper. Under date of February 16, Robert V. Palmer, an In- ternational representative of the union, wrote to the respondent, requesting that a date be fixed for a collective-bargaining conference, and under date of February 18, Frederick A. Kullman, of the law firm of Kullman & Lang, replied to Palmer's letter, stating that his firm had been retained by Billups to represent it in bargaining negotiations with the union , and suggesting that the parties meet at 2 p.m. on March 7 in the con- 2 With the usual exclusions of professional employees, watchmen, guards, and all supervisors, as defined in the Act. 8 All dates hereinafter mentioned should be understood as falling in ference room of Kullman & Lang. Palmer accepted this arrangement in a letter dated February 23, in which he also requested that James Curry and James Patrick, who would constitute the union's employee committee in the bargaining conferences, be excused, so that they could at- tend the March 7 conference. The bargaining conference scheduled for March 7 in the conference room of Kullman & Lang was duly con- vened and held, and it was followed by further bargaining conferences on March 28, April 11, May 9, 25, and 26, June 20, July 8, and August 1, making a total of nine such conferences. Palmer was the union's principal negotiator, apart from the union employee committee, consisting of Curry and Patrick, but Palmer missed the meeting of March 28, and during three of the meetings -those held on March 7 and 28 and May 9-he had the assistance of Ernest J. Rousselle, Jr., another International representa- tive of the union, who attended these three meetings. The respondent's principal negotiator was C. Dale Stout, a member of the Kullman & Lang law firm, who was assisted by Carver Blount, the respondent's house counsel.' However, Stout did not get into the negotiations until the meeting of March 28, and he missed the meeting of July 8, at which the respondent was represented, in ad- dition to Blount, by Richard C. Keenan, who was also a member of the law firm of Kullman & Lang, and who ap- peared on behalf of the respondent in the present proceeding. During the first meeting of March 7, the respondent was represented, in addition to Blount, by Frederick A. Kullman, the head of the law firm of Kull- man & Lang, and by William H. Krause, Jr., the execu- tive vice president of the respondent. At the second meet- ing of March 28, D. G. Herbert, the president of the respondent, also put in an appearance but this represented the only other occasion on which any officer of the respondent participated in any way in the negotia- tions. The negotiations proved to be wholly futile, and the parties were unable to arrive at any collective-bargaining agreement. The reasons for this unsatisfactory conclusion-from the union point of view - becomes ap- parent from an examination of the conduct of respond- ent's managerial representatives before the election, as well as after the commencement of the negotiations. They were opposed to the unionization of the Kenner terminal employees, and declared repeatedly that the respondent would never sign a contract with the union. At the same time, they sought to deal directly with the employees and offered to remove their grievances. B. The Respondent 's Attempts to Subvert the Union Both Before and After the Election The respondent 's principal effort in its attempt to de- feat the union prior to the election seems to have been made by its executive vice president , William H. Krause, Jr. Ordinarily , Krause visited the Kenner terminal only once a month but before the election he spent a whole week at the Kenner terminal , his mission being to seek out each of the truckdrivers , and to induce him to give up any thought of union organization. Judging from the testimony of those of the employees who testified con- 1966 unless otherwise indicated. ° In September 1966 Blount also became the treasurer of the re- spondent. BILLUPS WESTERN PETROLEUM COMPANY 967 cerning his activities, he approached them with a com- bination of promises and threats. In the case of James Curry, he spoke to him not once but twice. In the first interview Krause called Curry over, and asked him not to vote for the union because the com- pany had too many stockholders to pay off and assured him that "They wouldn't sign a contract with the union." Curry told Krause that he would think it over, and men- tioned that he had been attempting to get a raise. Krause agreed with Curry that he was not earning enough, and undertook to speak in his behalf to D. G. Herbert, the respondent's president. Krause's second conversation with Curry was evidently a followup of the first conversa- tion. Krause approached Curry while he was unloading his truck at the respondent's Hammond No. 1 service station, and asked the latter if he had thought over the union matter. Curry indicated that he would go with the winner, which led Krause to remark that "Signal does not have a union anywhere else, and they wasn't going to have it there, that the company would fight it to the last. They definitely was not going to sign a union contract." Krause's approaches to the other truckdrivers were pretty much along this same line. He caught Edward R. Williams while the latter was unloading gas at Belle Chasse, and asked him whether he would vote for the union . Williams remained noncommital but brought up the subject of the low trip rates which Billups was paying. Krause thereupon suggested that he and the other truckdrivers talk to Herbert about getting more money "without going through all this mess of a union." Krause also told Williams on this occasion, as well as on other oc- casions, that the company would never sign a contract with a union. Krause also employed the followup technique in interrogating Tilford Bayham about whether he would vote for the union and left him with the message that the union could not make "the company do anything that it didn't want to do." In tackling Sabra Pitts, the mechanic's helper, and asking the latter to "get the boys to vote it out," Krause seems to have been more positive in his promises than to any of the other truckdrivers, for he told Pitts that if he succeeded he would take care of him, and that he would have a job as long as he wanted it. Pitts was more cooperative than any of the truckdrivers and agreed to talk to the other employees, and to per- suade them not to fool around with the union . Despite Pitts' cooperativeness, Krause told him, too, that they would not sign a contract with the union. Pitts was per- haps more amenable to Krause's persuasions because he had previously been approached by Herbert himself, who had promised to take care of him if he did not join the union. In campaigning against the union prior to the election, the respondent also sent Carver Blount, its house coun- sel, who was accompanied by several company officials, to read a prepared statement to the Kenner terminal em- ployees. The respondent did not produce a copy of this statement with the result that the evidence concerning what Blount said is somewhat fragmentary but the testimony of Williams and Patrick, two of the truckdrivers who heard Blount speak, makes it clear that in the course of his remarks he threatened the employees' job security by stating that the respondent was consider- ing the hiring of a common carrier to haul its gas, and again conveyed the message that the respondent would not sign a contract with the union. All these inducements, threats, and declarations of in- tent never to sign a contract with the union occurred prior to the election and prior to the commencement of negotia- tions with the union. Although they also occurred more than 6 months prior to the filing of the charges in the present case, they may nevertheless be considered as sig- nificant background. Conceivably, the respondent's managerial representatives could have repented and al- tered their policy after the union had been certified and they had actually entered into negotiations with the union. But there is credible evidence that in fact the pol- icy of frustrating the efforts of the union to secure a col- lective-bargaining agreement underwent no change. After the meeting on March 28, which was attended by Herbert, the respondent's president, James Curry, who was at the Kenner terminal having his truck serviced, was taken aside by Leroy Smith, the respondent's station su- pervisor in the New Orleans area, and solicited to talk to the other drivers in an effort to get them to drop the union by making the familiar threat that Herbert would not sign a union contract, and that he would "break the company" before he would do so. As Curry testified: Well, we walked through the back of the truck at the end of the wash rack and paint shop, and he told me, he said, "James, why don't you see the drivers and you all drop this mess and go and see Mr. Her- bert? He will give you a raise." I asked him, I said, "You think so?" And he said "Yes." He says, "I know so, because Jack," he called him Jack, which means Mr. Herbert, he says, "Jack done had his belly full of you all, and you all done give him a good lesson, and he has thought matters over, and he seemed to think that you all need a raise, and he would give it to you. But," he says, "I can tell you, Jack is not going to sign a contract. He will break the company before he will sign one." And he said, "I don't blame him, I would do the same thing myself." Curry's reply to this blandishment from Herbert's emis- sary was that if the employees dropped the union Herbert would fire all of them in less than 2 months. Smith admitted that he had talked to Curry about the union on this occasion and told the latter that he thought "they ought to get together and go talk to Mr. Herbert, to handle it that way rather than through the union," and that he asked Curry to try to get the drivers together "to get the thing ironed out without having the Union in." Smith explained the "thing" to be ironed out as the matter of a raise and also conceded that Curry might have replied to his suggestion that the employees drop the union by saying that they might be fired within 2 months. Smith denied only that he had told Curry that Herbert would never sign a contract with the union, and would break the company before doing so. Smith attempted to pass off his conversation with Curry on this occasion as a mere expression of his per- sonal opinion to an old friend. In fact Smith was no friend of Curry. Although the latter was an old employee, and Smith may have had friendly relations with him, they had no social relations, and their relationship was simply that obtaining between an employer and an old employee. There is no good reason to doubt that in speaking to Cur- ry, Smith was doing so on behalf of Herbert, and that he was reflecting Herbert's own views. Although Smith would not admit that he reported his conversation with Curry to Herbert himself, he did admit that he related this conversation with Curry to Melvin Powell, the manager of the Kenner terminal. Smith also pretended to a con- veniently vague memory in being unable to fix the time of his conversation with Curry, even approximately, despite much prompting. On his direct examination, Smith finally 968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD testified that he "would say" that his conversation with Curry occurred "approximately a month" after the elec- tion. On his cross-examination, however, he expressed his belief that the conversation occurred "around the time when the company and the union were meeting to try to bargain on the contract." I accept, therefore, the more positive testimony of Curry that this conversation with Smith took place after the March 28 negotiating session at which Herbert was present. Indeed, on all points in which the testimony of Curry and Smith diverge, I accept the testimony of Curry rather than the testimony of Smith. C. The Respondent 's Unilateral Acts While Negotiating With the Union The insincerity and indeed bad faith of the respondent's representatives in dealing with the union is made manifest by two actions which they took unilaterally while the bar- gaining negotiations were in progress. Under date of March 16, which was 9 days after the opening of the negotiations, Herbert, the respondent's president, without notification to or consultation with the union representatives, sent out a circular letter to all the em- ployees of the company, which, of course, would include the Kenner terminal employees, announcing an improve- ment in the respondent's insurance program, which then included only life insurance and a health care plan, by of- fering them a weekly indemnity insurance plan which would compensate them for wages lost because of nonoc- cupational accident or illness. The new insurance plan was to become effective April 15, 1966, if accepted by 75 percent of the employees who were on the payroll at that time. Again without consulting with or informing the union representatives of its intention to do so, the respondent on April 27 subcontracted its Baton Rouge route to another trucking company known as Hearin-Miller. The Baton Rouge route covered Denham Springs, St. Fran- cesville, New Roads, Port Allen, and places in between, and so far as the truckdrivers were concerned, it was one of the respondent's best paying routes. Before the elec- tion, the route had been handled by J. P. Everett but he was injured in January or February 1966. The route was then taken over by C. D. Willis. After the subcontracting of the Baton Rouge route, Willis made runs in the areas covered by some of the other drivers, and this reduced their earnings. Two of the truckdrivers, Williams and Patrick went to talk to Melvin Powell, the manager of the Kenner terminal, in an effort to ascertain why the Baton Rouge route had been contracted out. Powell told them that it had been done because they were not servicing their stations in a proper manner but that if they worked harder, he would give the run back to them. Patrick con- tended, however, that if the stations on the Baton Rouge run ever ran out of gas, it was because of the neglect of the station managers to take proper readings, or to call up to ask for gas. At the negotiating session of May 9, Palmer lodged a protest against the unilateral actions of the respondent in offering the indemnity insurance program to the em- ployees, and in subcontracting the Baton Rouge route to Hearin-Miller. Palmer also mentioned a rumor that the respondent would also subcontract its Gulf Coast runs, and declared that the company's unilateral actions gave credence to the reports that had been made to him that "Mr. Herbert had been saying that he will never sign a contract with this union, that no damn union was going to tell him what to do." Stout replied that the respondent's actions must have been due to ignorance of its bargaining obligations, and that he felt sure that whoever had made the decision to contract out the Baton Rouge route had done so "for good sound economical reasons." During a recess in the negotiating session, Stout telephoned to Herbert, and, when the session was resumed, Stout an- nounced that he had been in touch with Herbert and Powell, and that he could assure the union representa- tives that the respondent had no intention of undermining the union and that subcontracting would be discontinued. The subcontracting of the Baton Rouge route was in fact terminated on May 11, 2 days after the May 9 meeting, and the Gulf Coast run was never subcontracted. Even if it were true that the respondent's unilateral ac- tions were due to ignorance on its part of its legal obliga- tions, this would not constitute a defense. However, I do not accept the respondent's contention that the institution of the improvement in its insurance program, and the sub- contracting of the Baton Rouge route represented merely honest mistakes due to ignorance on the part of its representatives. The respondent had not only a house counsel in Blount but it had also retained the law firm of Kullman & Lang to handle its labor relations problems long before either of the unilateral actions had been taken. If Herbert did not consult any of his available sources of legal advice, it could only have been either because he had already received legal advice not to take any uni- lateral action or chose not to ask for it because he knew perfectly well what the legal advice would be if he did ask for it. The circumstances surrounding the improvement in the insurance program indicate, moreover, that the respondent's representatives were not acting in good faith. At the March 7 negotiating session, there was a discussion of the respondent's insurance benefits but the company representatives made no mention of any im- pending change in the insurance program. At this same session, Palmer requested that the respondent furnish the union with copies of all benefit plans in effect. These were supplied by the company representatives at the next negotiating session on March 28, and when they were presented, Rousselle specifically asked the company representatives whether there were any other benefit plans for the employees, and received a negative answer. Moreover, Herbert, who had himself signed the March 16 insurance letter, was present at this session, and par- ticipated in the discussions of the insurance. He, too, remained silent. As for the unilateral subcontracting of the Baton Rouge route, there is also a considerable variety of circum- stances indicating the bad faith of the company represen- tatives. The respondent had already committed other un- fair labor practices in its effort to get rid of the union, and one of these unfair labor practices had been to tell the truckdrivers that the respondent was considering the hir- ing of a common carrier to haul its gas. Thus the respond- ent was only carrying out a part of a threat that had been made already. It was doing so, moreover, although the subcontracting of the route entailed a greater expense to the respondent. At the May 9 negotiating session Palmer challenged, and rightly, Stout's contention that whoever had made the decision to subcontract the Baton Rouge route had done so "for good sound economical reasons." The respondent guaranteed its truckdriver no more'than what the minimum wage law required, and the contractor could do no less. The contractor would, however, have to add a profit to its wage costs. This economic factor would serve to explain why the respondent had never before BILLUPS WESTERN PETROLEUM COMPANY 969 contracted out any of its routes. That it now chose to sub- contract one of its best paying routes, so far as the drivers were concerned, can only be explained by a desire to penalize them. Indeed, Powell, the manager of the Kenner terminal, confessed that this was his motive. While he did not also confess, of course, that they were being penalized because of their union activity, his eva- sive and contradictory testimony concerning the elimina- tion of the Baton Rouge route5 is difficult to understand except upon this assumption. D. The Actual Course of Collective Bargaining Between the Respondent and the Union As for the actual bargaining with the union, in which the respondent's representatives did engage, their bad faith is no less apparent, whether one accepts the testimony of Palmer and Rousselle or of Stout and Blount. Their testimony as to the course of the negotia- tions is in close agreement, however, except as to a few crucial points, and, as to these points, I accept the testimony of the union rather than of the company representatives. Palmer had a detailed set of notes on the negotiations to refresh his memory, which, moreover, im- pressed me as superior to that of either Stout or Blount. Stout had some notes but they were far less complete than those of Palmer, and as for Blount, he conceded that he relied on Stout's notes and that his own could be described as "skimpy." With respect to some of their testimony, Stout and Blount struck me as somewhat dis- ingenuous. For instance, at the point in his testimony where Stout was seeking to explain away the respond- ent's unilateral actions as due to "lack of awareness of its bargaining obligations," he declared that he had in- structions from the company "to try to reach, not to try but to reach an agreement with the Union" (emphasis supplied). If he had such instructions, his behavior throughout the negotiations can only be regarded as inex- plicable. Furthermore, Stout subsequently revised his testimony on this point by declaring that his instructions were "to negotiate the best possible contract that I could," which is certainly more credible but which is hardly reconcilable with his previous declaration. Stout and Blount also contradicted each other in testifying as to the scope of their authority in the negotiations, as will subsequently appear. It would be pointless to attempt to summarize what happened at each of the nine negotiating sessions, in which there was virtually no movement on any significant issue on'the part of the respondent's negotiators, and in which they were simply going through the motions of col- lective bargaining. While they punctiliously observed all its forms," they were actually bent on frustrating any agreement. This becomes apparent when one examines the unfavorable working conditions of the respondent's employees in the bargaining unit and considers the best offers that the union was able to obtain from the respond- ent's negotiators . Justice Holmes once said : "Legisla- tion may begin where an evil begins .'' Collective bar- gaining, too, may begin where an evil begins. In the present case , however, it also ended there. At the first meetings of March 7 and 28, the union negotiators obtained an outline of the working conditions and fringe benefits enjoyed by the employees in the bar- gaining unit . It seems that the hours were long, the pay was low, and the fringe benefits were few and limited. At least one of the drivers was shown to have worked as much as 18 hours a day, or over 90 hours a week," and during the negotiations Palmer informed the respondent's representatives that he was receiving complaints from the drivers that they were being asked to keep false logs of their trips . Stout promised to look into the matter but, if he did , he made no report to the union representatives thereafter . However , only the mechanic and the mechanic 's helper were paid by the hour, the former being paid $ 1.35 an hour and the latter $1.25 an hour; the respondent 's drivers were not paid by the hour but by the trip and the trip rates were so low that the drivers had to be guaranteed the minimum wage of $1 .25 an hour. The drivers did not receive any holidays or holiday pay at all. Although the drivers received an on-the-road expense al- lowance of $25 a month , this also covered meals, and those drivers who had to pay tolls were expected to ad- vance the money. They also took the risk of paying any fines, although these might be the result of following com- pany orders. So far as other fringe benefits are concerned, drivers who had been with the company a year received 1 week's vacation , and those who had been with the com- pany 5 years received 2 weeks' vacation ; sick leave was the same but it was not cumulative ; the company had a $2,000 per employee group life insurance program, and provided hospitalization insurance but the employees had to pay two-thirds of the premiums ; and, finally , the em- ployees had the privilege of purchasing company products at a 10 percent discount but gas and oil were ex- cluded. Without mentioning all of the demands of the union, they included a substitution for the trip rates of hourly rates which in the case of the mechanic and mechanic's helper were $ 3.66 an hour and $3 an hour, respectively, and in the case of the drivers $3.35 an hour; an increase in the monthly expense allowance from $25 to $30, and payment of toll fees in advance; nine paid holidays for all employees , including drivers irrespective of whether the holidays fell on Saturdays or Sundays ; vacations of 2 weeks for 1-year employees , 3 weeks for 5-year em- ployees, 4 weeks for 10-year employees, and 5 weeks for 20-year employees ; retention of the hospitalization in- surance but with the company paying all of the premiums; and employee pensions to be financed by the payment of 15 cents an hour per employee into the OCAW pension fund . Among the more important noneconomic demands of the union were provisions for union security and 5 Thus Powell testified on his direct examination that one of the reasons for subcontracting the Baton Rouge route was that he was short a driver but he was forced to admit on his cross-examination that C. D. Willis, the driver in question, had returned to work before the subcontracting of the route. Powell also gave contradictory testimony as to whether in his con- versation with Patrick the latter had agreed with him that the drivers were slowing down. Powell also admitted that stations in the Baton Rouge area had run out of gas due to bad dipstick readings. 5 It is specifically alleged in the complaint that the respondent "insisted upon leaving economic matters unresolved until all other aspects of the contract were confected." It seems to me, however, that neither the evidence of Stout or Palmer supports this allegation. There seems to have been a tacit understanding between them that, in so far as possible, the economic issues should be put aside until the noneconomic issues had been disposed of. 7 See Truax v. Corrigan, 257 U.S. 312, 343. 8 The driver in question was James Patrick, one of the two union com- mitteemen. He testified that he had worked from 13 to 18 hours a day, and respondent's Exhibit 1 shows that during the week of March 12 he worked 90-1/2 hours. 970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD checkoff of dues, and a procedure for the handling of grievances. Despite the low pay, long hours, and other unfavorable working conditions of the respondent's employees, the union negotiators encountered an unyielding and inflexi- ble attitude on the part of the respondent's negotiators. Although Palmer progressively reduced or modified the union 's demands he was unable to secure any significant concession from Stout and Blount on any economic issue. They would not agree, of course, to any increase in pay for either the mechanics or the drivers, and they stuck to the existing trip rates and expense allowance although the union offered to compromise by accepting a combination of trip and hourly rates. Stout was authorized to offer an increase of $1 in the respondent's existing trip rates but somehow he seems never to have gotten around to offer- ing even this token increase. Stout and Blount also stood virtually pat on the respondent's holiday and vacation policy, if indeed the term "holiday policy" is not a misnomer altogether in the case of the drivers. The only concession - if such it can be called - which they made on holidays was to agree to pay straight time for all time ac- tually worked on holidays, and, while not agreeing to ex- tend the vacation periods, they agreed to determine the amount of vacation pay on the basis of one fifty-second of the employee's previous year's earnings or on the basis of 40 hours, whichever was greater-a formula that probably represented no more than existing practice. They wrangled with the union representatives even on such remote and contingent provisions as funeral leave and pay during jury duty. They withdrew an agreement to make payment of toll fees in advance, although they had actually agreed to it at a previous meeting. They even. raised objections to the payment of employees for time spent in handling grievances or participating in negotia- tions, and in the end agreed to no more than to limited pay for employees involved in handling grievances. So far as noneconomic items were concerned, they steadfastly rejected the union's proposals for union security and union dues, despite the union 's willingness to, moderate some of its economic demands in exchange for the grant of these privileges. The respondent's representatives did so on the ground that they did not wish to force any of the employees to join the union , although all but one of them were already union members, and also on the ground that by having to collect the dues, the union representatives would be in contact with the employees at least once a month, although it was hardly their legitimate concern to assure such contacts. At the end of the ninth meeting on August 1, the respondent's representatives had not made a single offer which, in the words of the court in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F.2d 131, 139 (C.A. 2), "had the slightest chance of ac- ceptance by a self-respecting union ." Indeed, at the Au- gust 1 meeting , Palmer read off to Stout and Blount a list of 18 items which despite all the negotiating in the previ- ous meetings were still open and unresolved. It is true, of course, that Section 8(a)(5) of the Act does not impose on an employer the obligation to agree to any particular demands. An employer is nevertheless required to approach the bargaining table with an open mind and a sincere desire to reach agreement. That this was not the attitude of the respondent's negotiators in the present case is clear from their conduct at the bargaining table, as well as from their employer's conduct away from it. This is an inference that is usually based on circum- stantial evidence but in the present case it is supported also by an impressive amount of direct evidence. After all, Herbert had declared on numerous occasions that he would never sign a contract with the union, and the con- duct of his representatives at the bargaining table must be judged in the light of these declarations. Their uncom- promising attitude and extreme standpatism in the negotiations was also made manifest by further explicit declarations during the negotiations. More than once the respondent's negotiators in refusing to modify their posi- tions would declare: "Mr. Herbert is pretty fixed in his beliefs," or "Mr. Herbert is pretty fixed in his thinking." On one occasion, in rejecting the union's holiday proposals Stout commented: "Mr. Herbert likes it the way it is." On another occasion, when Palmer asked the respondent's negotiators whether they had considered his combination of trip and hourly rates, Blount bluntly declared: "Mr. Herbert does not intend to change his position on any of the monetary items." This declaration must be evaluated in the light of the fact that at no time during the negotiations did the respondent's representa- tives plead inability to pay as a ground for rejecting the union's monetary demands. E. The Effect Upon the Negotiations of the Limited Authority of the Respondent 's Negotiators Throughout the negotiations a serious impediment to their success was the failure of Herbert to participate in them after the meeting of March 28. Not desiring to bar- gain with the union representatives in good faith , he left Stout and Blount as his sole representatives at the bar- gaining table . Both were ignorant of many of the practical problems and practices of the Billups operations, and in addition , Blount lacked any previous experience as a negotiator , as he himself conceded . As a result , Stout and Blount , when confronted with many of the union's proposals, would agree to various proposals but only sub- ject. to consultation with their client . They would either tell Palmer that they would have to consult with their client, or with Herbert , before they could give the union any answer . This necessarily slowed the pace of the negotiations , and rendered agreement more difficult, par- ticularly since in the end the responses of Stout and Blount were almost always negative . Moreover, the necessity for consultation was interposed not only with reference to the important economic issues, such as wages, hours, holidays, and vacations , but also with reference to relatively unimportant or noneconomic is- sues, such as those involved in the language of various union proposals for recognition ,9 protection of rights or jury leave . Palmer repeatedly protested against the absence of Herbert from the conference table 10 but al- ways in vain , receiving , as a rule, only the standard ex- " It is significant that Stout and Blount were greatly troubled by the lan- guage of the union 's recognition clause which referred to the continuous recognition of the union because the provision might be held to imply that during the term of the contract the respondent might be required to con- tinue to recognize the union, although a majority of the employees no longer wished to have the union represent them. 10 Palmer demanded the presence of Herbert at the meetings of April 1'1, May 26, and July 8 but was turned down each time. Palmer best stated at the meeting of May 26 the reason for demanding the presence of Herbert when he declared: "Well, if Mr. Herbert is the one calling the shots, it seems to me he should be present in the negotiations, in order that he can have first-hand the benefit of our thinking." BILLUPS WESTERN PETROLEUM COMPANY planation that Herbert was pretty fixed in his thinking, which carried the implication that his appearance would not do any good, which was in fact the case. The constant consultation of Stout and Blount with their principals raises the question whether they actually had much, if any, authority to negotiate. They seem to have acted more as intermediaries or messengers than negotiators. Stout testified that before entering into the negotiations with the union he received both general and specific instructions from Herbert. The only general in- struction that was mentioned by Stout, however, was the one which I have already mentioned, namely, the rather contradictory one to reach an agreement with the union or to negotiate the best possible contract that he could. So far as specific instructions are concerned, Stout men- tioned only two, namely, that he could agree to an in- crease in the trip rates by $1 a trip, and that he was notto agree to the union proposal for union security. Stout at- tempted to explain his frequent checking with Herbert in terms of self-imposed limitations, arising from his lack of information concerning the respondent 's business , rather than in terms of limitations imposed by Herbert. As for Blount, the inexperienced negotiator, he claimed absolu- tely plenary authority. He testified that he had "full authority to represent the company," and then rendered confusion worse confounded by testifying further that Herbert was not "the only one who made decisions on be- half of the company." Blount directly contradicted Stout, moreover, by testifying that he could even have given way on the union-shop proposal. I think that it is a reasonable conclusion from the actions, as opposed to the words, of the respondent's representatives that they had no authority to agree to any of the union's proposals that would have any significance in moving the negotiations along to the point of agreement. Only this conclusion is consistent also with Blount's declaration that Herbert "did not intend to change his position on any of the mone- tary items." In any event, whether the limitations on the authority of the respondent's representatives were self-imposed or imposed by Herbert, the effect upon the negotiations could hardly have been anything but highly unfortunate, and it furnishes a further indication of the bad faith of the respondent's representatives. As the Board said in Fitzgerald Mills Corporation, 133 NLRB 877, 881:11 "While the absence of competent authority of a bargain- ing representative to enter into a binding agreement is not necessarily indicative of bad faith, the character of the agent's powers is a factor to be given consideration." At the meeting of June 20, Palmer told Stout and Blount that "his people" were getting restless, and ex- pressed the hope that the negotiations could be wound up at the next meeting. When this hope was disappointed not only at the next meeting of July 8 but also at the meeting of August 1, Palmer asked the respondent's representa- tives whether they had made their final offer. Blount in turn then, asked whether the union proposal was final. Palmer replied in the negative but added that "there was room for some movement on economics but not until the 11 Enfd. 313 F.2d 260 (C A. 2), cert denied 375 U S 834 12 Sabra Pitts, the mechanic's helper, testified that while he was picket- ing one day Forty remarked to him that he might as well throw down his picket sign because it was having no effect on customers and also that even if the union won the company would subject Curry to an examination and that he would be unable to get a job anywhere. While I credit Pitt's testimony despite its denial by Forty, I do not deem it necessary to deter- mine whether another independent violation of Section 8(a)(1) of the Act 971 management comes through with something ." Stout declared that what he had offered was all that he had authority to offer at that time. Palmer then remarked that Stout left him no alternative but to refer the matter back to his membership for possible other action . Although Palmer did not mention the word "strike," Stout assumed that he was threatening a strike, and informed Palmer that in the event of a strike the company intended to keep on operating by hiring replacements. F. The Strike ofAugust 5 and its Aftermath The strike duly occurred on August 5, and it would seem apparent that it was precipitated by the failure of the respondent to bargain with the union in good faith. The Kenner terminal was picketed during the strike. In front of the terminal proper, there was a gasoline service sta- tion, and the picketing occurred at the entrance to the gas station which had a separate manager whose name was Tony Forty.12 Despite the picketing, the respondent was able to continue operations at the Kenner terminal by transferring employees from some of its other locations, and also by hiring replacements. On October 14, the Federal Mediation and Concilia- tion Service made an effort to bring the parties together The Federal mediator involved was Roger Leslie. Stout alone appeared on behalf of the respondent. The union was represented however, not only by Palmer and the union employee committee 13but also by one Jimmy Pear- son, the president of Local 4-447 of the OCAW and N. Gautreaux, the secretary of the same local. The meeting lasted most of the day, there being both a morning and an afternoon session. In the meeting of October 14, Palmer either dropped or further greatly curtailed most of the union's demands, and accepted many of the company counterproposals. It was only on union security and checkoff of dues that he would not yield. Among the proposals dropped by the union was one providing for severance pay. Among the company proposals accepted by the union were these on grievances and arbitration, safety, sick leave, funeral leave, jury leave, and on group life and health insurance. The union reduced its economic demands by agreeing to accept a 20-percent increase in the driver's trip rates, or $1.75 an hour, whichever method of calculation produced the greater pay for the driver and $2 an hour for the mechanics and $1.75 an hour for the mechanic's helper; by virtually accepting the existing company's holiday and vacation program, except that the drivers were also to have five holidays; and by agreeing to accept a $4-a-week payment for employees into the OCAW pension fund. In response to these sweeping concessions, Stout could only state again that he would have to consult his client. He promised, however, to call Palmer the first of the fol- lowing week. Stout did not keep this promise but under date of October 24, he sent Palmer a letter in which he re- jected virtually all of the latter's concessions. On or about November 10, the union called off the strike. Under date of November 10, four of the respond- occurred. The difficulty is that Pitts worked at the service station only oc- casionally and was not one of Forty's regular employees. Indeed, Pitts did not even know Forty's name. Moreover, Forty was such a very minor su- pervisory employee that it would seem doubtful that his remarks to Pitts can he held to reflect company policy. i3 C. D Willis, another of the truckdrivers, had, however, taken the place ofJames Patrick on the committee. 972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's striking employees, James Curry, James Patrick, Tilford Bayham, and Sabra Pitts sent a letter to the respondent, in which they made unconditional offers to return to work. This letter was received by the respond- ent on November 16, and under date of November 21, the respondent advised the four employees that it had no vacancies for them. Edward R. Williams, another of the striking employees, also made an unconditional offer to return to work in a letter that was dated November 18 and that was received by the respondent on November 23. In a letter dated November 23, Williams, too, was ad- vised that there was no vacancy for him. Since all the ap- plicants for reinstatement were unfair labor practice strikers, the respondent was required to grant their appli- cations notwithstanding that they may have been replaced during the strike, and that no vacancies may have existed at the times of their applications. The last contact between the union and the respondent occurred on February 3, 1967, when Blount sent a letter to Palmer in which he informed the latter that in order to comply with the change in the minimum wage law the pay of all employees at the Kenner terminal would be in- creased to $1.40 an hour; that the company proposed that effective March 1, 1967, the hourly rate of the mechanic at the terminal be raised to $1.50 an hour; and the driver's trip rates remain unchanged except that the basic hourly minimum would be $1.40 an hour. Under date of Febru- ary 13, 1967, Palmer replied to this letter as follows: Your letter of February 3, 1967, is acknowledged. We shall be happy to resume negotiations in order to discuss any changes j'ou desire to make in the Com- pany's last negotiated position. Please treat this letter as a continuing indication on the part of the Union that it is willing to resume negotiations for the purpose of reaching a mutually satisfactory collective bargaining agreement at any time , date and place mutually agreeable to the parties. Palmer received no reply, however, to his letter of February 13. Herbert not only failed to attend the bargaining ses- sions , except for his single appearance on March 28, but he also failed to put in any appearance at the hearing, and so, of course, he was not called as a witness. The hearing was thus a case of Hamlet without the Prince. It is ap- parent that only Herbert could have explained his mo- tives and his actions but he chose to leave it to Stout and Blount to do so. But what they had to say about Herbert's motives and actions was strictly hearsay. Herbert himself remained insulated from cross-examination. The failure to call him as a witness counts heavily against the respondent. IV. THE REMEDIES In view of the scope of the respondent's unfair labor practices, I shall recommend a broad form of cease-and- desist order designed to prevent the repetition not only of the specific unfair labor practices committed by the respondent but also to effectuate the guarantees of Sec- tion 7 of the Act. By way of affirmative relief, I shall recommend that the respondent be required to offer reinstatement to James '4 On March 18, 1966, Sabra Pitts was injured in the course of his em- ployment. He has not worked since that date and is, presumably, receiving workmen 's compensation . In the case of Pitts, therefore , the obligation of Curry, James Patrick, Tilford Bayham, Sabra Pitts, and Edward R. Williams, the five strikers who uncondi- tionally applied for reinstatement, and to make them whole for any earnings which they may have lost from the dates on which their offers to return to work were received to the dates as of which they are offered rein- statement. The amount of backpay is to be determined in accordance with the formula prescribed in F. W. Wool- worth Company, 90 NLRB 289, and interest is to be computed on the amount so determined in accordance with Isis Plumbing & Heating Co., 138 NLRB 716.14 I shall also recommend that, upon request of the union, the respondent shall bargain collectively with the union in good faith as the exclusive representative of the em- ployees in the bargaining unit hereinafter described as ap- propriate, and embody in a signed agreement any un- derstanding which may be reached. CONCLUSIONS OF LAW 1. The respondent, Billups Western Petroleum Com- pany, is an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By attempting to induce one of the respondent's em- ployees who was a union committeeman to get the other employees to drop the union by promising them raises and by threatening not to sign a contract with the union, the respondent interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby committed un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(1) of the Act. 4. All production and maintenance employees of the respondent at its Airline Highway Terminal, otherwise known as the Kenner terminal, including truckdrivers, but excluding all other employees, professional em- ployees, watchmen, guards, and all supervisors, as defined in the Act, as amended, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. On January 26, 1966, a majority of the employees of the respondent in the aforesaid bargaining unit designated and selected the union as their bargaining representative in a secret ballot election conducted by the Regional Director of Region 15 of the National Labor Relations Board on such date, and on February 3, 1966, the Board certified the union as the representative for the purposes of collective bargaining of the employees in the aforesaid bargaining unit. 6. At all times since February 3, 1966, the union has been the representative for the purposes of collective bar- gaining of a majority of the employees in the aforesaid unit, and, by virtue of Section 9(a) of the Act, has been and is now, the exclusive representative of all the em- ployees in the aforesaid bargaining unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other terms or conditions of em- ployment. 7. At all times since February 3,1966, the union has requested the respondent to bargain collectively with it as the respondent to reinstate him shall not arise until he has been medically certified as capable of resuming work. If he has not been reinstated within 5 days after such certification, his backpay shall begin to run. BILLUPS WESTERN PETROLEUM COMPANY 973 the exclusive representative of all the employees in the aforesaid bargaining unit with respect to rates of pay, wages, hours of employment, or other terms or conditions of employment. 8. By failing to bargain with the union in good faith as the exclusive representative of all of its employees in the appropiate bargaining unit as aforesaid, particularly in that it entered negotiations with a fixed and inflexible position on economic matters and failed to designate bar- gaining agents with full authority to agree to contract proposals, despite repeated requests that it do so, the respondent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. This conduct of the respondent was responsi- ble for precipitating, on August 5, 1966, a strike of the respondent's employees in the bargaining unit, and the said strike continued until on or about November 10, 1966. 9. By offering on March 16, 1966, to extend to its em- ployees a weekly indemnity insurance plan to compen- sate them for wages which they might lose because of nonoccupational accident or illness, and by subcontract- ing its Baton Rouge route to a trucking company known as Hearin-Miller on April 27, 1966, without, in both in- stances, consulting or bargaining with the union, the respondent committed unfair labor practices affecting commerce within the meaning of Section 8(a)(5) and (1) of the Act. 10. By refusing on November 21, 1966, to reinstate James Curry, James Patrick, Tilford Bayham, and Sabra Pitts, four of its striking employees, who had uncondi- tionally abandoned the said strike and applied for rein- statement, and by refusing on November 23, 1966, to reinstate Edward R. Williams, another of its striking em- ployees who had also unconditionally abandoned the said strike and applied for reinstatement, the respondent dis- criminated against the said employees with respect to their tenure of employment, and thereby committed un- fair labor practices affecting commerce within the mean- ing of Section 8(a)(3) and (1) of the Act. RECOMMENDED ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the respondent, Billups Western Petroleum Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Attempting to induce any of its employees to drop the union by promising them raises and by threatening not to sign a contract with the union. (b) Failing or refusing to bargain collectively in good faith with the union with respect to rates of pay, wages, hours of employment, or any other term or condition of employment in the bargaining unit hereinbefore described as appropriate. (c) Making changes in its terms and conditions of em- ployment unilaterally without consulting the union or bar- gaining with it with respect to such terms and conditions of employment. (d) Refusing to reinstate any strikers who may make unconditional applications for reinstatement either in- dividually or through the union. (e) Discouraging membership in Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization of its employees, by discriminat- ing in any manner against them in regard to hire, tenure, or any term or condition of employment. (f) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed to them in Section 7 of the Act. 2. Take the following affirmative action in order to ef- fectuate the policies of the Act: (a) Upon request, bargain collectively with the union as the exclusive representative of the employees in the bargaining unit hereinbefore described as appropriate with respect to rates of pay, wages, hours of employment, or any other term or condition of employment and em- body in a signed agreement any understandings which may be reached. (b) Offer to James Curry, James Patrick, Tilford Bayham, Sabra Pitts, and Edward R. Williams full rein- statement to their former or substantially equivalent posi- tions, in the manner and to the extent set forth in section IV of this Decision entitled "The Remedies," without prejudice to their seniority or other rights and privileges, and make them whole for any losses of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of the respondent's refusal to reinstate him to the actual date of his reinstatement. (c) Notify said employees if presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act and the Universal Military Train- ing and Service Act, as amended, after discharge from the Armed Forces. (d) Preserve and, upon request, make available to the Board or its agents, for examination and copying, all payroll records and reports, and all other records neces- sary to analyze and compute the amount of backpay due under the terms of this Recommended Order. (e) Post at its Airline Highway Terminal in New Orle- ans, Louisiana, otherwise known as the Kenner terminal, copies of the attached notice marked "Appendix."15 Copies of this notice, to be furnished by the Regional Director for Region 15, after being duly signed by re- spondent's authorized representative, shall be posted by respondent 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 such notices are not altered, defaced, or covered by other material. (f) Notify the aforesaid Regional Director, in writing, within 20 days from the date of this Decision, what steps have been taken to comply therewith.is IT IS FURTHER RECOMMENDED that the complaint be dismissed in all other respects. 15 In the event that this Recommended Order is adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." is In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in wasting, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith."