Carpenters' District Council of Jacksonville

National Labor Relations Board - Board Decisions

Nov 26, 1975

221 N.L.R.B. 876 (N.L.R.B. 1975)

876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carpenters' District Council of Jacksonville, Florida
and Vicinity and Carpenters Local Union No. 627,
of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO, and, North Florida
Carpenters Joint Apprenticeship Committee and
Office & Professional Employees' International
Union, Local 73, AFL-CIO: Case 12-CA-6376
November 26, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND' MEMBERS
JENKINS AND PENELLO
On March 19, 1975, Administrative Law Judge
Paul B.isgyer issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section,3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record ' and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,', and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
Contrary to Chairman Murphy, we think the
Administrative Law "Judge's findings' with regard to
Respondent's violations of Section 8(a)(5) of the Act
are fully justified. First, as to Respondent's refusal
even to meet with the Union throughout the course
of the strike, the Chairman's position is that there
was only a technical violation that had no impact on
the strike or the subsequent negotiations. The
Chairman agrees that Respondent committed other
unfair labor practices during the strike by letting it be
known that, because they struck, the strikers would
not be reinstated. She does not dispute the fact that
although the Union requested bargaining several
times during the strike Respondent would not
respond until after the strike ended. In these
circumstances we think it is fanciful to maintain that
the refusal to bargain during the strike was washed
clean by the bargaining that occurred thereafter,
even if we assume it was good-faith bargaining. To so
find would put a premium on refusing to bargain and
engaging in other unlawful conduct to break the
strike and bring the Union back to the bargaining
table in the position of a defeated enemy.
i We hereby correct the following inadvertent error in the Administra-
tive Law Judge's Decision In the second par of sec. III, A, 1, "March 23"
should read "May 23 "
2 It seems reasonable to infer that at least some of these waived
reinstatement because they found new jobs while they were unlawfully
refused their old ones back In any case, none of the replacements would
have been retained if the strikers' unconditional application for reinstate-
221 NLRB No. 118
How easy it, would be for the victor then to
"bargain in good faith".! Respondent saw fit, howev-.
er, to refuse even that much concession to the
principles of collective bargaining.Jnstead-of propos-
ing that the Union accept Respondent's last prestrike
wage increase offer, it proposed a substantial wage
and benefit cut.-Over the course of several months
thereafter, Respondent raised its wage offer, to, an
amount still substantially below its prestrike offer. Its
benefits offers.° remained substantially below the
benefits enjoyed by the employees before the strike.
We do not view these offers, on these facts, as part of
a bona fide effort to reach agreement.
The reason Respondent ° gives to justify its _ post-
strike bargaining posture is especially interesting in
the circumstances presented here. It claims it was
able' to obtain permanent replacements for lower
wages and benefits, and its offers to the Union were
keyed to the terms under which the replacements
were working. But we have found that Respondent
acted unlawfully when it permanently replaced,the
strikers, at least as of the time they requested
reinstatement. Had it not : been for its unlawful
conduct, therefore, Respondent would not have been
in a position to retain the replacements, and would
not have available to it the alleged defenses based on
their continuing employment. Some of the replace-
ments will be staying on only because some of the
striking, discriminatees accepted settlement of their
claims without reinstatement.2 Respondent could not
in good faith have assumed that they would do so.
While in the absence of any statutory labor
relations obligations Respondent perhaps could have
filled its clerical needs more cheaply, it was legally
not in a position to do so until after it ceased its
unfair labor practices and bargained in good faith
with the Union about it. To allow Respondent to
secure the economic advantage it obtained on the
heels of its unremedied unfair labor practices, on the
other hand, would most certainly frustrate the
purposes of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Carpenters' District Council of
Jacksonville, Florida and Vicinity and Carpenters
ment had been accepted Although unlawful denial of reinstatement has
been found only as to three of the strikers , they were all similarly situated
The cases of the others were not litigated because their claims were privately
adjusted , but we see no basis on which to doubt that but for Respondent's
refusal to accept them back they would all have returned immediately at the
end of the strike
CARPENTERS' DISTRICT COUNCIL_.OF JACKSONVILLE 877
Local Union No. 627, of the United Brotherhood of
Carpenters and Joiners of America, AFL-CIO, and
North Florida Carpenters Joint Apprenticeship
Committee, Jacksonville, Florida, their officers,
agents, and representatives, shall take the action set
forth in the said recommended Order.
CHAIRMAN MURPHY, concurring in part and dissent-
ing in part:
While I agree with my colleagues that Respondent
violated Section 8(a)(1) and (3)3 of the Act, I
disagree with their finding that it also violated
Section 8(a)(5).
Respondent and the Union had been bargaining
amicably for a number of years prior to the dispute
which led to the filing of the present unfair labor
practice charge. On April 30, 1974,4 the collective-
bargaining contract between the parties expired.
Prior thereto Respondent served timely notice of
contract termination together with a request for
negotiation of a new collective-bargaining contract.
The parties met four times during April but were
unable to reach agreement. There is no question but
that the negotiations during this period were con-
ducted by both parties in good faith. The principal
stumbling block to a new agreement was wages. The
old contract contained a "me-too" clause whereby
office clerical employees were entitled to receive
from Respondent the same wage raise Respondent
secured for its carpenter members in negotiations
with -construction employers. The "me-too" clause
had its origin more than 10 years'earlier when this
arrangement was worked out for its then single office
employee, but had been extended to other office
clericals. The Union insisted on the retention of the
clause; Respondent, was equally insistent on its
elimination. At the final April meeting, the Union
abandoned the "me-too" formula, but asked for a
wage increase of $1.65 an hour spread 'over a 2-year
period; Respondent offered $1.05 an hour for the
same period. The Union unceremoniously rejected
Respondent's offer. The meeting ended in an impasse
and a strike occurred beginning May 1.
During the strike, Respondent ignored the Union's
request for bargaining) However, after the strike
terminated the 'parties, resumed their negotiations.
Meetings were ' held on June 11 and 18, July 18,
August 13, September 17, and October 21 and 26. No
agreement was reached principally because Respon-
dent's contract proposals after resumption of negoti-
ations following the termination of the strike were
less generous than those which had been made prior
to the strike.
The Administrative Law Judge concluded that
Respondent failed to engage in good-faith bargaining
by ignoring the Union's requests during the strike for
the resumption of bargaining and by allegedly
advancing proposals discriminatory and punitive in
nature during the negotiations which resumed after
the strike ended.
It is of course true, as stated by the Administrative
Law Judge, that a strike does not relieve an employer
of his statutory obligation "to meet at reasonable
times and confer in good faith" with his employees'
bargaining representative. Respondent was therefore
in technical violation of Section 8(a)(5) by not
meeting with the Union during the strike. But this
technical violation which resulted only in a delay in
the resumption of negotiations had no impact, in my
opinion, either in prolonging the strike which
admittedly was economic in origin or in affecting the
bargaining negotiations. Nothing in the Union's
requests for new meetings indicated that the Union
was prepared to make a wage offer which would
break the impasse that had caused the strike. As I
would, find that the negotiations which followed the
strike were conducted in good faith by Respondent, I
would also find that the short delay in Respondent's
response to the Union's requests for the resumption
of negotiations neither warrants a separate finding of
violation of Section 8(a)(5) nor is evidence of bad-
faith bargaining. -
A somewhat related problem was presented in M.
R. & R. Trucking Company v. N. L. R. B., 434 F.2d 689
(C.A. 5, 1970). In that case, the company told the
union that it would not negotiate concerning wages
"unless and until" pending unfair labor practice
charges were disposed of by the Board or withdrawn
by the union and the union abandoned attempts to
organize other terminals owned by the company.
Noting that the company subsequently made another
wage offer, the court said that while the company
could not refuse to bargain because of the pendency
of unfair labor practice charges and the refusal to do
so was evidence of bad faith, in the overall picture it
had small impact. Similarly, in the present case,
Respondent's short delay in responding to the
Union's requests for the resumption of bargaining
negotiations had little impact in affecting those
negotiations.
The critical issue, in my view, is whether the
negotiations which followed the strike's end were
? In adopting the Administrative Law Judge's finding of an 8(a)(3) therefore unlawful
violation, I rely only on his alternative rationale, namely, that Powell, 4 All dates herein are 1974 unless otherwise specified.
Conrad, and Webber were still economic strikers when they applied for 1 On April 19, Respondent negotiated a contract for its carpenter
reinstatement after the termination of the strike and they had not been members which provided for a $1 50-an-hour increase in wage and fringe
permanently replaced at that time The failure to reinstate them was benefits over a 2-year period
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conducted in bad faith. There is no question that
when negotiations resumed Respondent 's economic
proposals were less favorable to the strikers than
those that had been made prior to the strike. The
Administrative Law Judge considered these propos-
als punitive. I do not agree. It seems to me that the
Administrative Law Judge has not given full weight
to the change of circumstances which had occurred
during the strike. Respondent was able to hire highly
skilled and competent replacements at wages consid-
erably less than those that it had paid the strikers. It
thus became aware that it had been overpaying the
strikers. It was in the light of this circumstance that
Respondent reduced its wage offer to the Unions
There is no per se rule preventing an employer from
reducing its wage proposals during the course' of
negotiations . Such a reduction may be and often is
evidence of bad-faith bargaining, but is not invari-
ably so. In the M. R. & R. Trucking case, supra, there
was a 6-month hiatus in negotiations and after
bargaining resumed the company offered terms and
conditions of employment less favorable than those it
had previously tentatively agreed to grant. The union
subsequently went on strike . In overturning the
Board's finding of bad-faith bargaining, the court
stated (434 F.2d at 695):
Recognition is not given to the hard bargaining
and exertion of economic force by both sides and
to the right of the company to use the stronger
bargaining position in which it found itself.
Moreover, during the poststrike negotiations, while
refusing to go back to its prestrike offer, Respondent
sought to make its new proposals more palatable to
the Union with respect to returned strikers, consist-
ent with the fact that it now had in its employ new
employees who were receiving less in wages and
other benefits than previously received by the
strikers.
In the light of the longterm amicable relationship
between the Union and the Respondent, the admit-
6 Cost was especially important to Respondent at this time because
unemployment among its members had caused a drop in, revenue of
approximately $8,000 per month
The majority appears to say that Respondent could not rely on the fact
that it had hired replacements for lower wages and benefits than had been
received by the strikers because Respondent would not have been in a
position to retain the replacements except for its unlawful conduct. There
are two answers to this contention (1) the hiring of the replacements was
lawful , whether or not the retention was also lawful , and (2) the complaint
alleges and the Administrative Law Judge found that only some of the
strikers were unlawfully denied reinstatement The majority has engaged in
sheer speculation in inferring that some of the strikers waived reinstatement
because they found new jobs while Respondent unlawfully refused them the
old jobs back Moreover, when Respondent resumed negotiations following
the end of the strike , it could not know whether it had unlawfully or lawfully
replaced the strikers This determination was first made by the Administra-
tive Law Judge after negotiations ceased
tedly good-faith bargaining which preceded the strike
and the impasse, Respondent's new awareness of the
state of the labor market as revealed during the
strike, and the negotiations which followed the strike,
I cannot agree with the Administrative Law Judge's
conclusion that Respondent "could not possibly"
have engaged in good-faith bargaining in a sincere
effort to reach agreement. It seems to me that this
conclusion rests on a mechanical application of some
Board decisions, rather than on an overview of all the
circumstances of this unique case. For the foregoing
reasons, I dissent from the finding that Respondent
violated Section 8(a)(5) of the Act.
DECISION
STATEMENT OF THE CASE
PAUL BISGYER , Administrative Law Judge: This proceed-
ing, with all parties represented, was heard on various days
from September 30 through November 1, 1974, in
Jacksonville , Florida, on the complaint of the General
Counsel issued on August 29, 1974,1 and the answer of
Carpenters' District Council of Jacksonville, Florida and
Vicinity; Carpenters Local Union No. 627 of the United
Brotherhood of Carpenters and Joiners of America, AFL-
CIO; and North Florida Carpenters Joint Apprenticeship
Committee, herein respectively called the District Council,
Local- 627, and JAC, and collectively referred to as the
Respondent . In substance , the questions presented for
decision are: (1) whether , following an impasse m contract
negotiations with Office ,& Professional Employees' Inter-
national Union, Local 73, AFL-CIO, herein called the
Union , and a resultant economic strike, the Respondent
engaged in conduct converting the strike into an unfair
labor practice strike; (2) whether the Respondent unduly
delayed the resumption of negotiations and subsequently
engaged in bad-faith bargaining in breach of its statutory
obligation ; (3) whether it discriminatorily refused to
reinstate its striking employees on their unconditional
application to return to work ; and (4) whether it engaged
in other unlawful conduct , all in violation of Section
8(a)(1), (3), and (5) of the National Labor Relations Act, as
amended.2 At the close of the hearing, , the Respondent's
Counsel waived oral argument while the General Counsel
summarized his position on the record . Thereafter, the
General Counsel and the Respondent filed briefs.
Upon the entire record, and from my observation of the
demeanor . of the witnesses , and with due consideration
being given to the arguments advanced by the parties, I
make the following:
i The complaint is based on original and amended charges filed by the
Union on May 28 and August 19, 1974, respectively, copies of which were
duly served on the Respondent by registered mail on the day following the
respective filing dates.
2 Sec 8(aXI) of the Act makes it an unfair labor practice for an employer
"to interfere with , restrain , or coerce employees in the exercise of the rights
guaranteed in section 7" Insofar as pertinent , Sec. 7 provides that
"[e]mployees shall have the right to self-organization , to form, join, or assist
labor organizations , to bargain collectively through representatives of their
own choosing , and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE RESPONDENT
The United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, herein called the International, is a
multistate labor organization with over 2,000 affiliated
labor unions . The District Council is an integral part of the
International and is composed of delegates from all local
unions affiliated with the International in the Jacksonville,
Florida, area and vicinity . Local 627 is an affiliated local of
the International and the District Council. On behalf of its
affiliated local umons , the District Council negotiates
agreements with various employers and employer associa-
tions some of whom are engaged in commerce.
During the past year , various locals throughout the
country have remitted to the International , at its offices
located in another State, dues and initiation fees in excess
of $500,000. During the same period local unions, which
are affiliated with the District Council, have remitted to the
International at its offices located in another State dues
andinitiation fees in excess of $50,000.
JAC, a separate legal entity with its own employer
identification number, was established pursuant to local
negotiations conducted by the District Council, on behalf
of its affiliated locals, with various employers and
employer associations , some of whom are themselves
directly engaged in commerce . JAC provides an appren-
ticeship training service available to contributing employ-
ers and is funded by means of moneys received by a trust
established pursuant to Section 302 of the Act . It operates
subject to the regulations of Federal and State Bureaus of
Apprenticeship Training.
The District Council , Local 627, and JAC have their
principal office and place of business in the same building
located at 4000 Union Hall Place, Jacksonville , Florida,
and employ office clerical employees in the regular course
and conduct of their respective business.
It is admitted,'and I find, that the District Council, Local
627, and JAC are individually employers and collectively
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
There is no question that the Union is a labor
organization within the meaning of Section 2(5) of the Act.
Sec. 8(ax3) of the Act, with certain qualifications not material herein,
prohibits an employer "by discrimination in regard to hire or tenure of
employment or any term or,condition of employment to encourage or
discourage membership in any labor organization
Sec ' 8(aX5) makes it an unfair labor practice for an employer "to refuse
to bargain collectively with the representatives of his employees, subject to
the provisions of section 9(a) " The latter section provides that the
representatives selected by a majonty'of the employees in such unit "shall
be the exclusive representatives of all the employees in such unit for the
purposes of collective bargaining in respect to rates of pay, wages, hours of
employment, or other conditions of employment "
3 Unless otherwise indicated, all dates refer to 1974.
4 The Respondent's notification initiating joint bargaining is embodied
in its letter of April 4 to the Union written on the District Council's
stationery, signed by Charlie O Hunter, as president of the District
Council, John H Sea, as secretary of JAC; and Earl S Huff, as chairman of
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Evidence
1. Bargaining history; chronology of events; and
issues presented
879
For a number of years prior to the events herein, the
Union was the duly recognized collective-bargaining
representative of the respective office clerical employees of
the District Council, Local 627, and JAC pursuant to
separate, identical contracts. Apparently, the relations of
the parties during - this period were harmonious and
friendly and free of any strikes, which incidentally was the
policy the District Council and Local 627 generally
followed in their own dealings with employers in the
construction industry. The parties" last contracts were
effective to April 30, 1974, and thereafter, absent 60 days'
written notice of termination. In accordance with this
provision, the District 'Council, Local 627, and JAC in
early February 19743 each served on the' Union a timely
notice of termination. The first two named employers also
specifically requested negotiations for a new agreement. By
separate letters to the three employers, Lois Powell, as the
Union's president, acknowledged their communications
and expressed the Union's desire for meetings to negotiate
new contracts. Thereafter, the District Council, Local 627,
and JAC advised the Union that they intended to conduct
their negotiations jointly through a combined negotiating
committee and scheduled April 12, which was later
changed to April 10, as the date for opening negotiations.4
In their answer to the complaint, the three employers admit
that they thereby constituted themselves an' informal
voluntary association of employers for the purpose of
jointly negotiating a collective-bargaining agreement with
the Union covering all their office employees. They also
concede that all office clerical employees employed by
them, including those employed in the Ocala and Gaines-
ville, Florida, union offices, but excluding all other
employees, guards and supervisors as defined in the A"ct,
comprise an appropriate unit for the purpose of collective
bargaining.5
From April 10 through 30, the parties held four
bargaining sessions which - failed to produce agreement.
Although several other items were unresolved, the princi-
pal stumbling block to agreement was the size of a wage
raise. As a consequence, the office clerical employees went
on strike on May I and picketed the Jacksonville union
Local 627's negotiating committee
5 At the time negotiations were instituted, the following employees
comprised the appropriate unit.
Lois Powell Nell Yon
Carolyn Lueders Therese LaMotte
Madeline Pittman Margaret Youngblood
Shirley Webber Wanda Cheuvront
Gloria Conrad
All of these employees worked in the Jacksonville offices except Young-
blood, who was employed in Gainesville, and Cheuvront, who was
employed in Ocala There is undisputed evidence in the record that
immediately before contract negotiations began at least eight of the nine
employees in the unit designated the Union, in writing, as their bargaining
agent
880 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
offices with "No Contract-No Work" signs. Admittedly,
this strike at its inception was ecomonic in nature.
However, the General Counsel contends, as the complaint
alleges, that the strike was subsequently converted into an
unfair labor practice strike by reason of the Respondent's
intervening unlawful conduct. On March 23, The Union
terminated the strike and, by letter of that date, made an
unconditional application to the Respondent on behalf of
the seven named striking employees6 to return to work on
May 28. On the latter date, the strikers reported for work
but were denied reinstatement for the asserted reason that
they had been permanently replaced. Thereupon, the
Union filed unfair labor practice charges, alleging an
unlawful refusal to. bargain and a discriminatory denial of
reinstatement to ''the seven named striking employees.
Ultimately, the complaint which issued herein listed three
strikers as discriminatees -Lois Powell, Shirley Webber,
and Gloria Conrad-the claimed discrimination against
the other four employees having been privately adjusted.
In the meantime, during the strike, the Union attempted
to arrange for the resumption of contract negotiations.
However, it was not until June II that the first poststrike
bargaining meeting was held. The complaint alleges that
the Respondent's' procrastination in responding to the
Union's efforts reflected adversely on the Respondent's
bargaining attitude.
In the period from June 11 to the date of the issuance of
the complaint herein on August 29, the Respondent and
the Union met on four separate occasions.r The complaint
alleges that the Respondent's bad-faith bargaining was
demonstrated at the June 11 and 18 meetings where it
offered striking employees less favorable wages, hours, and
working conditions than those which they had enjoyed
prior to, the strike and which they had been offered in the
prestrike April negotiations. In addition, the complaint
alleges as further evidence of the Respondent's determina-
tion not to reach agreement with the Union the Respon-
dent's insistence at the August 13 bargaining session that
the striking employees receive no wage increase until the
"striker 'replacements receive wage parity with returning
strikers." Also charged as independently violative of the
Act are alleged ' remarks ' by Earl 'Huff and Mickey
McClellan, officials of Local 627, concerning the Respon-
dent's retaliatory determination not to permit striking
employees to return to their, jobs.
The Respondent, of course, denies the commission of
any ' unfair labor practices. It argues, in substance, that,
when- viewed realistically in the context of the total
negotiations and the justification for its, positions, the
6 They were- Powell, Lueders, Conrad, You, Pittman, Webber, and
LaMotte. The other two unit employees, Youngblood and Cheuvront, who
worked in Gainesville and Ocala offices, respectively, did not leave their
jobs to join the strike
T On July 23 and 25 the parties engaged in pnvate.stnke settlement
discussions which had no bearing on the resumed contract negotiations.
4 The Respondent's combined negotiating committee consisted of its
chairman , Charlie Hunter, the Distract Council president, John H Sea, the
District, Council representative and secretary-treasurer of JAC; Earl Huff,
Local 627 business representative and chairman of Local 627s negotiating
committee, Louis E Toth, the District, Council secretary and JAC director;
Harold Sandiford, AGC member of JAC, and Donald Hand, AGC member
of JAC. Other officials of the Respondent also participated in bargaining
meetings at different times Mickey McClellan, Local 627's financial
evidence relied on by the General Counsel does not
establish bad-faith bargaining by the Respondent in order
to avoid agreement. With respect to its alleged discrimina-
tory denial of reinstatement to Powell, Webber, and
Conrad, the Respondent contends that no case was made
out. As for Huff's and McClellan's -remarks, the Respon-
dent urges that they were misinterpreted by the General
Counsel's witnesses and therefore did not violate the Act.
We turn to the evidence.
2. The prestrike April meetings
As indicated above, four such meetings were held (April
10, 19, 23, and 30) to renegotiate the parties' contracts
which were due to expire on April 308 There is no question
that negotiations were conducted by both parties during
this period in a 'good-faith effort to reach agreement,
although it appears that the discussions were somewhat
disorganized with side conversations going on simultane-
ously. For this reason, it is unnecessary to recite the details
of these prestrike bargaining sessions except as they might
have a bearing on the Respondent's alleged offer of
reduced wages and other benefits made during the resumed
negotiations following the termination of. the strike.
It is clear that the Union was content to continue its
expiring contracts without change,-especially in view of the
so-called me-too clause embodied therein whereby the
office clerical employees were entitled to receive from the
Respondent the same wage raise the Respondent secured
for its carpenter members in its contract negotiations with
the local chapter of the Associated General Contractors
(AGC).9 The "me-too" clause had its origin more than 10
years ago when this arrangement was worked, out for Lois
Powell's benefit and in the ensuing; years was extended to
the other office clerical employees. Undeniably, it was the
elimination of this clause which, to a very substantial
degree, prompted the Respondent to reopen the contracts.
The April negotiations began with a review of all the
contractual provisions. This was done -by' having the
contract read aloud item by item with the understanding
that if either party questioned any provision or desired a,
change the matter would at that point be discussed and the
proposed changes would be considered. If no agreement
could be reached, then the controversial item would
remain open for further discussion on a later occasion. If
no objection or question was raised by any party respecting
a particular clause or provision after it was read, the
procedure was to mark it o.k. or simply to pass it. Union
witnesses interpreted the latter eventuality as indicating
agreement to the continuance of the provision in a new
secretary, joined the Respondent's negotiating committee during the
poststrike meetings . Comprising the Union's bargaining team , were. Lois
Powell, the Union's president; Carolyn Colley, the Union's secretary-
treasurer, and employees Gloria Conrad and Shirley Webber
There was no legal representation for either party during the April
meetings but in the poststrike negotiations Attorney Frank Hamilton, Jr.,
represented the Union and Tom Larkin, who was subsequently succeeded
by David A Bartholf, represented the Respondent.
9 During the April negotiations with the Union, the Respondent was also
involved in renegotiating its carpenter contract with the AGC, which had
the same April 30 expiration date as the Union's contracts About April 19,
the Respondent succeeded in securing for the carpenters a wage , increase of
$1.20 an hour and $.30 for fringe benefits, allocated over a 2-year period.
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
contract, whereas the Respondent's witnesses viewed the
unchallenged item as still negotiable should any party at
some future time desire to reopen it. In the absence of an
express understanding to the contrary-and there appears
to be none here-it seems only reasonable to infer that a
failure to question a,provision meant that it was acceptable
for inclusion in the contract ultimately to be concluded by
the parties.
Since the Union was satisfied with the terms of the
expiring contracts, virtually all the proposals for revision or
deletion of various provisions came from the Respondent.
To many of the proposed changes the Union acceded,
leaving a relatively small number of items still open and
unresolved when negotiations finally broke down on April
30. These were: wages, overtime (whether to change double
time prescribed in the expired contracts to time and a half),
emergency work, holidays, seniority, job descriptions, and
duration. Of course, of all these unresolved items, the wage
raise issue was the most troublesome. Indeed, John Sea,
one of the Respondent's negotiators, testified that, in his
opinion, had agreement been reached on the wage raise,
there would have been little difficulty in resolving the other
disputed items.
The record indicates that the principal cause for the
breakdown in negotiations on April 30 was the inability of
the parties to come to agreement on a wage raise. At the
first three meetings, the Union insisted on the retention of
the "me-too" clause, while the Respondent was equally
adamant in demanding its elimination. In the Respon-
dent's opinion, this formula was no longer economically
feasible and it thought that the time had come for severing
the office clerical employee tie-m with the carpenter raises
and for the Union to do its own bargaining for its
constituents. Accordingly, the Respondent initially offered
the' Union a 10-percent raise for the clerical employees
which the Union -rejected. It was not until the April 30
meeting that the Union abandoned the "me-too" formula.
Then followed a series of 'offers and counteroffers, the last
one being made by the Respondent of $1.05 an hour as
against the Union's offer of $1.65 anhour, both`spread out
over a 2-year period. The Union unceremoniously rejected
the Respondent's offer. At this point, Hunter, the chairman
of the Respondent's negotiating committee, declared that
that was its final offer and left the conference room
followed by other members of his committee, leaving
behind the Union's representatives- and two other members
of the Respondent's committee. There is a conflict in
testimony whether before leaving Hunter inquired if the
Union had a counteroffer. Although I seriously doubt,that
such an inquiry was, made, it is significant that no
counterproposal was forthcoming, from the Union and the
meeting ended', up in an impasse.io
10 I find, contrary to the testimony of the Respondent's witnesses, that
Hunter did-not say that he was withdrawing all proposals before he left the
April 30 meeting Not only did the Respondent charge at the subsequent
June I I and 18 meetings, later discussed, that it was the Union which had
taken such action, but the events that took place at the April 30 meeting
seem to indicate that there was no announced withdrawal of proposals by
any party Had such a declaration been made by Hunter, I am sure that the
Union's representatives would not simply have sat around awaiting a
resumption of that meeting without asserting their opinion of Hunter's
purported action In any event, I find that such a declaration of withdrawal,
if made, would have no bearing on the question of the validity of the
881
3. The -strike; the Union's efforts to resume
bargaining
As a result of the breakdown in negotiations at the April
30 bargaining session , which also marked the expiration of
the parties' contracts, the seven Jacksonville office employ-
ees 11 went on strike on May 1 and began picketing the
building with signs reading "No Contract-No Work." This
activity received television, radio, and newspaper coverage
and undoubtedly was a source of embarrassment to the
Respondent. Several hours after the inception of the
picketing, Jesse Morgan, the president of Local 627, invited
Union President Lois Powell into the building to speak to
the Respondent's attorney, Tom Larkin, on the telephone.
In the ensuing telephone conversation, Larkin only asked
Powell whether she was aware that she was violating the
law by her activity. Powell denied the charge and suggested
that Larkin call, the Union's lawyer, Frank Hamilton, Jr.
In the afternoon of the same day (May 1), newly elected
officers of Local 627, Ellis Graham, its treasurer, and
Tommy Thompson, a trustee,12 approached Powell near
the picket line and asked whether "this problem" could be
resolved. In reply, Powell stated that she did not know but
that she was willing to negotiate with the Respondent any
time it wanted, adding that she would pull down the picket
line if the Respondent returned to the bargaining table:
Nothing came of this offer to negotiate.
On May 4, under the belief that the same Tommy
Thompson could be instrumental in arranging a resump-
tion of negotiations because of his membership on Local
627's executive board and because he was the son-in-law of
former business agent, Howell, who was upset over the
picket line, Union Secretary-Treasurer Colley requested
Thompson to ask the executive board to schedule another
meeting. This effort also did not produce a meeting. On or
about May 10, Colley was informed by her boss, A. J.
Spaulding, the business representative of the Millwrights
Labor Union, treasurer of the District Council and a
trustee of JAC, that he believed that Hunter, the commit-
tee's chairman, would meet with the Union if she would
send him a telegram to that effect. Accordingly, on that
date she and Powell sent a telegram to Hunter stating that
"our Committee, stands ready to meet with you at any
time." On or about the 'same date that this telegram was
sent, Mickey McClellan, the financial secretary of Local
627,13 engaged Powell in a conversation near the picket
line in the course of which he asked her, "when are y'all
gonna get straight?" and what was the Union going to do.
Powell replied that "We're waiting, on y'all. We're ready to
negotiate." McClellan's response, among other things, was
Respondent's bargaining stance at the poststnke meetings with respect to
the alleged reduction in wages and benefits offered returning strikers.
11 The ' two clerical, employees working at the Gainesville and Ocala
offices did not go on strike.
12 Neither Graham nor Thompson was a member of the Respondent's
combined negotiating committee.
13 McClellan temporarily succeeded John Maxim to this office following
Maxim's death in March . In April , McClellan was elected to that office and
became Powell's immediate boss. At this time, McClellan was not yet a
member of the Respondent's negotiating team.
882 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he was new in the office he then occupied and that he
had to go along with the other officials.14
Not having received a reply to their May 10 telegram,
Powell and Colley on- May 17 sent Hunter the following
mailgram:
You have not seen fit to reply to our ,telegram
expressing our willingness to meet with you to resume
negotiations. We are hereby requesting a meeting either
May 20, .21 or, 22 at any time to, either resume
negotiations on our contract or for you to tell us that
you are not prepared to'negotiate in good faith ... .
The document then noted telephone numbers at which
Powell and Colley could-be reached. However, no response
to this wire was received and no meeting was arranged for
any of the indicated dates.
As will be' later discussed more fully, after picketing
terminated, the Union, by , letter dated May 23, made an
unconditional application for reinstatement of the striking
employees and a demand "for further meetings on the
terms of their employment." On May 28,-Hunter answered
this letter in which, among other things, he advised Colley
of the Respondent's willingness to meet with the Union "at
a mutually convenient time and place with a view towards
negotiating an agreement satisfactory to all of the
employees involved", and suggested that the Union contact
the Respondent's attorney Larkin or Hunter. On May 31,
Colley' replied, calling Hunter's -attention to the fact that
his letter, failed to "set a date, time or place" for a
negotiating 'meeting. Hunter thereupon responded by
scheduling the resumption of negotiations on June 1 I at an
indicated time and place.
4: 'Termination of the strike; denial of
reinstatement
As previously noted, on or about May 10 Local 627's
financial secretary, McClellan, inquired of Powell about
the prospect of the, parties' dispute being straightened out.
There is, however, a testimonial conflict as to what
remarks, if any, were made,' in the course of that
conversation' regarding the rehiring of the striking employ-
ees. Powell testified that, after McClellan commented that
he was new in his present position and that he was obliged
to ' go along with the other officials, he stated that the
Respondent's officials had agreed not to take the strikers
back and that they had voted to hire new girls. This
conversation was overheard, in part, by Gloria Conrad,
one of the'strikers who corroborated Powell in that respect.
Thus, she testified she overheard McClellan telling Powell
that he was new there and that he had to go along with-the
decision of other officials concerning the strikers. However,
Conrad testified that, she could not remember what the
decision was. McClellan, on the other hand, denied saying
to Powell that the Respondent's officials had agreed not, to
take the strikers back; nor did he recall telling Powell that
they had voted to hire new girls, although he conceded that
14 This part of the conversation reflects Powell's credible testimony
which is not contradicted by McClellan's account. There, however, is a
conflict in testimony concerning the subject of the Respondent's hiring of
it could have been said in view, of the Respondent's need
for office help. -
I find Powell's account reliable and worthy of belief.
Indeed, as will appear below, McClellan's remarks, were of
the same general nature,as those he subsequently made to
Jeannie Carpenter, a completely neutral witness, and
similar to the remarks which -Local 627 Business Repre-
sentative Huff made to Conrad. Accordingly, I credit
Powell's testimony.
Conrad, who had been Huff's secretary for some 4 years,
learned that members of the Carpenters Union were
informing the strikers that the strikers were going to be
replaced. Consequently, in the evening of May 16, Conrad
telephoned Huff at his home to ascertain her employment
status. According to her account, the following occurred:
After referring to the above statements of the carpenter
members,' Conrad asked whether they were true and
whether she still had a job. Huff answered that, as far as he
was concerned, she had lost her job the day ,she went on
strike; the girls had embarrassed the Respondent and
himself "beyond repair"; the - Respondent's negotiating
committee had gotten together and decided that they
would not have the strikers back under any circumstances;
for this reason Conrad would be replaced; he was sorry for
this turn of events; and there was nothing personal in this
development. Conrad became upset and cried inaudibly,
explaining that, as a member of the Union, she ' had no
alternative except to go on strike but, that she had not
intended thereby to give up her, job. The conversation,
which lasted about 5 to 10 minutes, ended with Conrad
requesting Huff not to'tell anyone that she had called him.
Huff testified that he had a very brief conversation with
Conrad in which she asked whether she still had her job.
Huff further testified that he replied that it was not a
question whether she had a job but rather a matter of
keeping his office operating and having someone to do the
work. Although he denied making the statement that the
girls had embarrassed him by going out on strike, he
conceded that he might have said that ,he didn't-like the
publicity. He also categorically denied making the state-
ment that the negotiating committee had gotten together
and decided that they would not have the girls back under
any circumstances. However, it is noted that Huff gave no
testimony whether he had informed Conrad that her job
was still open-as, indeed, it was since no permanent
replacement had been hired-and that the job, was still
available to her.
From my evaluation of the testimony in question, I find
that the version given by Conrad, who impressed me as a
very credible witness, to be more plausible and reliable
than Huff's. Not only were Powell and Jeannie Carpenter
similarly informed by McClellan concerning the decision
of the Respondent's officials not to rehire the striking
employees, but, as will subsequently be shown, the
Respondent appears to have actually implemented that
decision by rejecting the strikers' unconditional application
to return to work under circumstances which indicate that
new employees , which will be considered in the next section of this
Decision
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
at least several jobs had not yet been filled at the time of
the denial of reinstatement.
On May 16 or 17 (Thursday or Friday), McClellan
telephoned Jeannie- Carpenter, who had formerly been
employed in the financial secretary's office, and inquired
whether she was interested in coming to work for him.
Carpenter told him that she would consider the offer over,
the weekend and let him know on Monday, May 20. '
Carpenter gave the following testimony of her next
conversation with McClellan: Since she failed to communi-
cate with McClellan, as she was supposed to do, McClellan
called her at her home on May 22 or 23 (Wednesday or
Thursday). In answer to his inquiry, she stated that she did
not intend to return to work because of her continuing
disability- suffered in an automobile accident. McClellan,
nevertheless, tried to persuade her to accept the job, noting
that she had the experience and would be a big help to him.
Carpenter thereupon expressed a reluctance to accept the
position because she had previously worked with the
striking office clerical employees, who were her friends,
and because she was a member of the Union. This led to a
discussion of the pay and benefits that would be available
to her. McClellan told her that, because of her experience
in the job, she would earn the top scale of $160 or $165 a
week and that gradually a contract would be worked up
under which she would receive insurance benefits. He also
told her that she would be the senior employee in his office.
When Carpenter asked what would happen to Powell, who
was the senior employee there at the time she went on
strike , McClellan assured Carpenter that she had nothing
to worry about because Powell would not come back, nor
would the other striking employees be returned to their
jobs. This shocked Carpenter who, reminding McClellan
that he was her friend whom she admired, remarked that
she hoped for his and the Respondent's sake that they
knew 'what they were doing. McClellan replied that he had
discussed the situation with the Respondent's legal counsel
and that he was advised that what heintended to do was
perfectly all right; that the Respondent should have hired
new employees the first day the girls; went on strike; and
that the Union's contract with the Respondent was illegal
and therefore it was proper to hire new employees.
McClellan also 'informed Carpenter that it was not his
decision alone not to take the girls back but that he and the
other officials had talked it over and had come to that
conclusion and that a change had been needed for a long
time. In the course of this conversation, McClellan tried to
impress "upon Carpenter that he needed an immediate
answer from her whether she would accept the job because
if she were not interested, he had another girl in mind for
the job who had 14 years' experience in a bank.15 The
record is not clear whether McClellan thereby gave
15 As will later be discussed , the Respondent claims that it had already
hired Pat Pate as -a replacement for Powell on May 20.
16 Carpenter credibly testified, without contradiction, that during the
same week of May 20, JAC Director Toth telephoned her and predicted that
eventually the picket line would just fade away.
17 There is testimony by McClellan's fiancee, Chnstme Waugh, that she
was in McClellan 's home on a weekend night when he received a telephone
call in which he tried to persuade a person identified as "Jeannie" to come
to work for him. She further testified that she did not hear McClellan say
that the Respondent 's officials had agreed not to take the strikers back.
Since Carpenter had several telephone conversations with McClellan, it is
883
Carpenter additional time to make up her mind about
accepting the job t6
McClellan did not dispute the sum and substance of
Carpenter's account of their conversations except that he
specifically denied that he told Carpenter that the
Respondent was not going to take back the striking
employees. He did testify that he recalled telling her that
the Respondent should have hired new girls the first day
the office employees went on stnke.17
Carpenter impressed me as forthright and disinterested
witness. As a friend of both McClellan and the striking
employees, it is hardly likely that she would falsely
attribute statements to McClellan which he did not
actually make. I, accordingly, credit her above detailed
account of her conversations with McClellan which, except
as indicated, was not even contradicted.
The last day of picketing was May 22. The next day, the
Union sent the Respondent a letter, notifying it that the
seven named striking employees "unconditionally apply
for return to work at their respective places of employment
at 8:00 A.M. on Tuesday, May 28," The designation of the
latter date for the striker's return was due to the long
intervening Memorial Day weekend.18 This letter also
"demand[ed] further meetings on the terms of their
employment."
On May 28, the seven striking employees reported for
work. At first, they all went to the office of Earl Huff,
Local 627's business agent, where they were told to go to
the District Council's office, which they did. There, John
Sea, the District Council business representative, informed
the strikers that this was not the right place, adding that, in
any event, he had hired someone in Pittman's place.
However, Sea did not mention anything about the
replacement for Webber,19 who had also worked for him 3
days a week. Conrad and Yon then returned to Huffs
office where they had worked before the strike and were
informed by Huff that they had been replaced. Powell and
Lueders thereupon proceeded to Local 627's financial
secretary's office where they had previously been employed
and were informed by McClellan that they had been
replaced. LaMotte then went to the JAC office where she
had previously worked and was also advised by Director
Toth that she had been replaced. On this occasion, all the
strikers removed,their personal belongings.
After the seven strikers were denied reinstatement,
Union Secretary-Treasurer Colley sent the same day (May
28) three separate letters to McClellan, as financial
secretary of Local 627; Sea, as business 'representative of
the District Council; and Toth, as the JAC coordinator.
Each letter identified the termination of specific strikers 20
and "demand[ed] to know the name of the persons who
have replaced them, their, date of hire and their rate of
probable that the one Waugh overheard was not the one of May 22 or 23
recited above In any event, I find that Carpenter' s account of what was said
between McClellan and herself more convincing than Waugh's
is Under the parties ' expired contract , Monday, May 27, was Memorial
Day holiday for the office employees.
19 Pittman and Webber worked for Sea before the strike. Webber's
employment was on the basis of 3 days for Sea and 2 days for JAC.
20 More ',particularly, the letter to McClellan referred to Powell and
Lueders, who were on Local 627's payroll. The letter to Sea related to Yon,
Conrad, Pittman, and Webber, who were on the District Council's payroll.
(Continued)
884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay." In addition, the letters demanded that the strikers'
"earned and accrued vacation pay" be remitted to them.
On this day, the Union filed its original unfair labor
practice charge herein, alleging, in addition to an unlawful
refusal to bargain, a discriminatory denial of reinstatement
of the seven strikers.
On May 28, Negotiating Committee Chairman Hunter
answered -the Union's May 23 request for reinstatement
and meetings. After expressing the Respondent's intention
to meet with the Union, and noting that the parties'
contract had expired and that the Respondent had been
without office personnel, the letter stated that the Respon-
dent "found it essential to hire replacements" and that "in
order to obtain personnel with equivalent skills, to offer
them permanent employment rather than temporary
employment." Continuing, the letter stated:
This has been done, and as a result, all positions held
by former, employees have been refilled, with the
exception of three permanent and one part-tune
employee and it appears from the qualifications of the
replacements, that there is no longer a need to fill these
positions.21
I therefore regret to inform you that I can not, at this
time, acquiesce to your request for the unconditional
return to work.
However, I am sure that, if and, when a position
should become open, the Carpenter's Union, and its
associates , would consider reemployment of any of the
former employees provided they have equivalent skills
and knowledge for said position, and would, of course,
give them preference with regard to filling said position.
On June 5, the Respondent replied to the Union's earlier
demand for information relating, to the strikers' replace-
ments. In that letter the Respondent expressed regret that
it chose "not to release any information at this time."
5. The June 11 poststrike negotiations
This was the first meeting the parties held since the
breakdown in negotiations on April 30. It was conducted
in the presence of Federal Mediator Kazin and marked the
first appearance of Frank Hamilton, Jr., as attorney and
principal, spokesman for the Union, and Tom Larkin, as
the attorney and chief spokesman for the Respondent. Also
in attendance were the parties' regular bargaining commit-
tees. In his opening remarks, Hamilton declared the
Union's determination to negotiate a contract and listed as
unresolved items, wages , seniority, holidays„ contract
duration, and various questions related to sick leave. He
also pointed out that the Respondent had not yet furnished
the Union with the requested information concerning the
strikers' replacements. In his introductory remarks, Larkin
stated that the Union at the last meeting had flatly rejected
the Respondent's last proposal and, apparently unaware
that the Union had previously abandoned its "me-too"
Lastly, the letter to Toth, identified LaMotte and Webber, who were paid by
JAC.
21 As will later be discussed, the Respondent stated at the June 11
poststnke negotiation meeting that the statement in its May 28 letter that it
did not need to fill three full-time Jobs and one part-timejob was erroneous.
proposal regarding wage raises, Larkin inquired whether
the Union was still adhering to that position. Hamilton
advised Larkin that the Union had retreated from that
approach and that its last proposal was for an increase. of
$1.65 an hour spread out over 2 years as opposed to the
Respondent's offer of $1.05 payable over the same period.
Hamilton further observed that the Union was now
prepared to reduce its proposal.
Larkin declined to furnish the requested information
because of harassment of the replacements which he, did
not amplify. By the close of the meeting, however, Larkin
agreed to furnish this material at the next session. This led
to a discussion of the striker replacements, who Larkin
asserted were hired on a permanent basis and would
therefore be protected in their jobs. Also considered were
the terms and conditions of employment which the
replacements were offered whenthey were hired and which
were presented by Larkin as, the Respondent's contract
proposals. Specifically, these terms were as follows: A
weekly pay scale consisting of three classes-A, paying
$160; B, $145; and C, $130; a workweek of 40 hours;
overtime at tune and a half; the same six holidays as those
enjoyed by the Respondent's officers; vacations of 1 week
after 1 year's employment and 2 weeks after 2 years'
employment; hospital insurance after 60 days,of employ-
ment; and sick leave of 1 ' day a month with accumulation
up to 24 days. Undeniably, these wages and, working
conditions were far inferior to ,those enjoyed by the strikers
under their expired contract-land which were offered to
them before the strike. Indeed, several of these items were
not even in dispute at that, time.
In response to the Respondent's Class A, B, and C wage
offer, Hamilton reduced the - Union's earlier wage raise
proposal to $1.45 an hour over a 2-year period. Larkin
rejected this, as he did Hamilton's subsequent proposal of
$1.35 an hour. Larkin also declined Hamilton's suggestion
that they negotiate a progression rate from the Class A, B,
and C base rates. As for the other working conditions, such
as the workweek, overtime, holidays,, vacations, and sick
leave, Hamilton urged that the parties observe those
embodied in the expired contract.22 This proposal did-not
meet with the approval of Larkin who asserted that the
Union had withdrawn all offers at the'April 30 bargaining
session. The question .of the number of permanent
replacements was also raised. After caucusing several times
with the Respondent's negotiating committee, Larkin
stated that the Respondent, then employed at the Jackson-
ville offices, three Class A, one Class B, .and three Class C
office employees. He further pointed out that two part-time
positions previously occupied, by Webber in the District
Council and JAC offices had been abolished and two full-
time positions had been created in their place. When
Hamilton asked for an explanation of the statement in the
Respondent's letter of May 28 'that "all positions held by
former employees have been refilled, with the exception of
three permanent and one part-time employee," Larkin
answered that the statement was', erroneous.
22 This meant, among other thugs, a 37-1/2-hour week; double
overtime, about 10 holidays with the employee's birthday substituted for
Veterans Day; vacations up to 4 weeks,; dependmg'on the number of years
of service; sick leave of 15 days a year with 90 days accumulation; pensions,
and hospitalization under the Union's program
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
The discussion then turned to the subject of the recall of
striking employees when openings arose. Larkin an-
nounced that, in such case, the strikers would be required
to return at the Class A, B, and C rates, depending on the
strikers' ability and qualifications, even though-this meant
that they would be obliged to take a substantial wage cut.
Hamilton took issue with Larkin, insisting that the salaries
the strikers were paid before the strike were reasonable and
that they should be rehired at their prestrike rates plus any
negotiated increase. Coupled with this discussion was the
subject of seniority as abasis for recall.
Before the meeting closed, Hamilton asked Larkin
whether there were any open items other than those he
(Hamilton) had previously indicated. Larkin answered that
he would check with the Respondent. The meeting then
adjourned to reconvene June 18.
6. The June 18 meeting
The parties met on the scheduled date in the presence of
Federal Mediator Kazin. At the outset, Attorney Larkin
furnished Attorney Hamilton with written information
concerning the employment of five striker replacements.
Admittedly omitted, from this document was information
regarding the two employees who were supposedly hired
for the positions which were newly created to supplant the
two part-time jobs 'previously held by employee Webber.
Larkin also gave Hamilton a list of bids for hospitalization
insurance promised at the June 11 meeting.2a
Larkin then proposed to review the entire, expired
contract, which he asserted the Union had rejected before
the strike, in order to ascertain the state of the negotiations.
This evoked Hamilton's response that the contract had
never been rejected by the Union, only the Respondent's
wage offer, and opposed going through the contract again
which he viewed as playing games. At any rate, Larkin
read through the contract, indicating the Respondent's
position and proposals, if any. In that process, Larkin
proposed to delete the provision on voting time, which
Hamilton stated had been agreed to in the April negotia-
tions with qualifying language . Other clauses which Larkin
stated were open items dealt, among other things, with
vacations, sick leave, pensions, jury duty, leaves of absence
for union delegates, and furloughs. These items also appear
to have been previously agreed to in the prestrike
negotiations and with respect to some of them Hamilton so
indicated. In addition, Larkin proposed several changes
with respect to holidays which also appear not to have
been in issue during the April sessions.
The subject of the recall of strikers was raised again.
Larkin repeated his prior contention that strikers would be
required to return only at the minimum wage scale for their
classification (A, B, or C), while Hamilton reaffirmed the
Union's position that they return without any cut in the
salary they earned before the strike.' The question of the
continued insurance coverage 'of the strikers and the
nonstriking Ocala and Gainesville office employees was
also discussed, as well as the Respondent's proposal for
overtime at time and a half instead of double time as
prescribed in the expired contract.
23 Larkin indicated that he believed the bids covered dependents, as well
885
The meeting ended with Larkin suggesting that he and
Hamilton confer privately in Tampa, Florida, on June 24
or 25 to settle unresolved issues and that Hamilton, in the
meantime, prepare a report on the state of the negotiations,
setting forth the items on which agreement had been
reached and the positions and proposals of the parties on
those matters still in dispute.
7. The July 18 meeting
The previously arranged Tampa conference between
Attorneys Larkin and' Hamilton never came off. In the
meantime, David A. Bartholf was retained by the Respon-
dent to represent it in the contract negotiations. In order to
bring Bartholf up to date on the negotiations, Hamilton
furnished him with a copy of the negotiation report he had
undertaken to prepare for Larkin.
On July 18, a bargaining session was held in which
Bartholf participated.' At his suggestion, this meeting was
devoted to a review of the negotiation report in the course
of which agreements were reached on changes of various
items proposed by Bartholf; differences on other matters
were discussed; and disputes on the indicated positions on
several provisions were aired. Among other things, the
question of the 40-hour versus 37-1/2-hour workweek was
raised again and, after verification, Bartholf ultimately
acknowledged that the 37-1/2-hour workweek had previ-
ously been agreed upon. The subject of rest periods was
also raised as an open item, although it had been accepted
in earlier negotiations. Bartholf similarly confirmed that
the matter of pensions was open, although its continuance
was not in dispute in the April negotiations. Other
questions, such as double) time as opposed to time and a
half for overtime and the allocation of overtime, were also
briefly considered. Finally, Bartholf agreed to present the
Respondent's wage proposal at the next meeting.
8. The August 13 meeting
This meeting was also devoted to a thorough exchange of
views with respect to various matters still in dispute. One of
these matters, of special significance to the charge of bad-
faith bargaining, was the Respondent's modification of its
proposal regarding the salaries of returning strikers. The
Respondent, on this occasion, expressed its willingness to
pay a returning striker the salary she had received before
the strike, which, however, would remain frozen at this
level until the highest paid replacement employee reached
her scale at which time the returning striker would be
eligible for a raise. As for the wage scale of the striker
replacements, they would be paid the rate scale of their
particular classification (A, $160 per week; B, $145; and C,
$130). Hamilton asked Bartholf whether he was really
serious in advancing this proposed freeze of returning
strikers' salaries. When Bartholf answered in the affirma-
tive, Hamilton charged this was a form of discrimination,
like the Respondent's previous related proposals, adding
that, unless the Respondent took a more reasonable
approach, their efforts at reaching agreement were a waste
of time. Bartholf simply responded that the striking
employees had been grossly overpaid and that the
as the employees This assumption turned out later to be erroneous
886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replacements were doing a better job at less pay.
Answering Hamilton's further question, Bartholf com-
mented that he did not know how long it would take the
replacements to achieve the strikers' rates but a progression
rate would have to be negotiated.. Barthoif, however,
announced that all the replacements, with the possible
exception of one, would be raised to Class A by the
following Monday.
Another significant matter discussed at this meeting
involved the Respondent's proposed reduced vacation
policy as it affected returning strikers. The Respondent
pointed out that they would no longer be entitled to receive
what they had formerly enjoyed and consequently,
Madeline Pittman, a reinstated striker with 22 years'
service, would receive a 2-week vacation instead of 4 weeks
which she had enjoyed before the strike. The reduction in
sick leave and its accumulation were also criticized by
Hamilton who charged that the action was taken in reprisal
for striking. Finally, the Respondent confirmed, to Hamil-
ton's chagrin , that it, sought the elimination of pensions.
Expressing the view that no progress was being made,
Hamilton requested that at the next meeting a Federal
mediator be present. Barthoif consented to confer with
Hamilton to arrange such a meeting.
9. Issuance of the complaint; private adjustment'
of claims of discrimination; motion to dismiss
„Prior to the issuance of the complaint herein on August
29, the Respondent privately settled the claims of discrimi-
nation against striking employees LaMotte, You, Lueders,
and Pittman by offering them reinstatement with backpay.
Only Pittman accepted reinstatement while all accepted
various sums of money in satisfaction of their backpay
claims. As a consequence, the Union filed an amended
charge on August 19 eliminating these four strikers
therefrom. Accordingly, the complaint which subsequently
issued named only Powell, Webber, and Conrad as
discrimmatees. In addition, the complaint alleged that the
Respondent unlawfully refused to bargain in good faith
and otherwise violated the Act.
Thereafter and during the course of the hearing, the
Respondent and the Union privately adjusted the claims of
Webber and Conrad by offering them reinstatement with
backpay. Only Webber accepted reinstatement, while both
finally accepted the money tendered in settlement of their
backpay claims. A joint motion by the Respondent and the
Union to dismiss the allegations of the complaint relating
to discrimination against Webber and Conrad was denied.
10. Further negotiations subsequent to the
issuance of the complaint and during the course of
the trial
Another bargaining session was held on September 17 at
which the Union's latest seniority proposal was discussed
at length; a number of disputed items were dropped; open
items were summarized and reviewed; and the Respon-
dent's opposition to pensions was withdrawn. However, the
parties were still too far apart on a number of issues to
come to a final agreement.
The last two meetings were held on October 21 and 26.
Although some progress was made there toward achieving
agreement on; several items which had separated the
parties, there still remained serious differences on others
which evidently precluded agreement. Thus, among other
things, at the October 21 meeting the Respondent adhered
to its position that the salaries of returning strikers would
be frozen until the highest paid replacement reached their
level. Hamilton again charged that such treatment 4f the
o a cutstrikers was discriminatory and, indeed, amounted to'
in their salaries in view of inflation . This situation became
only more aggravated at-the October 26 meeting when the
Respondent presented a revised wage proposal which
provided for a wage increase for the replacements of $5 a
week upon the execution of a contract and $10 6 months
later. However , as far as employees Webber and Pittman,
who were the only reinstated strikers , were concerned, the
Respondent was only willing to give Webber 50 percent of
the increases but none to Pittman . Hamilton rejected this
offer, charging that,this offer reflected the Respondent's
continuing effort to penalize the strikers for going on
strike. In an attempt to offset this discriminatory treat-
ment , the Respondent offered to grant the returned strikers
a 37-1/2-hour workweek while the replacements would
continue to work a 40-hour week . Hamilton objected to
this discriminatory proposal , asserting that, in any event, a
37-1/2-hour workweek for all,employees had already been
agreed to, by the parties. Finally, the Respondent offered
the Union a package deal which included Webber's 100-
percent participation in the wage increases but still none
for Pittman. However, Hamilton similarly rejected that
offer and reminded the Respondent that the Union had
previously accepted reductions in some benefits the
employees had formerly enjoyed but would not make any
further concessions unless the Respondent acted more
reasonably, especially with respect to the returning strikers.
On this note , the last meeting ended.
B. Concluding Findings
1. With respect to the refusal to bargain
a. Appropriate, unit; the Unions_ majority status
As indicated above , the parties are in agreement that all
office clerical employees employed by the District Council,
Local 627, and JAC, including those employed in the
Ocala and Gainesville, Florida, union offices , but exclud-
ing all other employees , guards and supervisors as defined
in the Act constitute an appropriate unit for bargaining
purposes . There can be no serious question that during the
negotiations involved herein, both before and after the
inception of the strike , and, in particular, at the times the
Respondent is found below in default of its bargaining
obligation, the Union was the majority representative of
the employees in such unit. Indeed, at no time during the
negotiations did the Respondent even raise any doubt of
the Union's majority status. The only contention now
advanced by the Respondent is that the Union's "present
majority status" was not proved. Certainly , this is no
defense to a prior unlawful refusal to bargain , which I find
below, especially since whatever loss of majority the Union
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
might have suffered would be attributable to the Respon-
dent's unfair labor practices.
Accordingly, I find that at all material times the Union
was the exclusive collective-bargaining representative of
the Respondent's employees in an appropriate unit.
b. The Respondent's failure to bargain in good faith
Conceding that before the inception of the-strike the
Respondent bargained in good faith with the Union for a
new contract to supersede the expiring ones, the General
Counsel- contends that the Respondent thereafter, in
disregard of its statutory obligation, unreasonably delayed
the resumption of negotiations and subsequently sought to
impose discriminatory terms, and conditions of employ-
ment for returning strikers. The Respondent, on the other
hand, strenuously denies that its conduct amounted to
bad-faith bargaining to avoid reaching agreement with the
Union.
It has long been settled that an employer violates Section
8(a)(5) and (1) of the Act if it fails to bargain in good faith
with the employees' representative. This principle is
generally embodied in Section 8(d) which defines the
bargaining obligation as requiring the parties, inter alia, "to
meet at reasonable times and confer in good faith with
respect to wages, hours, and other terms or conditions of
employment, or the negotiation of an agreement ... and
the execution of a written contract incorporating any
agreement reached if requested by either party ... .
Although this obligation does not "compel either party to
agree to a proposal or require the making of a concession,"
it does contemplate, as the Board and the courts have
uniformly held, a willingness to enter the discussions "with
an open mind and purpose to reach an agreement
consistent with the respective rights of the parties." 24
Simply, entering "upon a sterile discussion of union
management differences," 25 is not sufficient. Essentially
then , the "ultimate issue whether the Company conducted
its bargaining negotiations in good faith involves a finding
of motive or state of mind which can only be inferred from
circumstantial evidence." 26
From a careful analysis of the evidence, I find that the
Respondent failed to fulfill the requirements of good-faith
bargaining. As shown above, when the Union rejected the
Respondent's final wage offer at the April 30 meeting, the
Respondent abruptly terminated the meeting. This
prompted the Union to go on strike and to picket the
Respondent's offices with "No Contract-No Work" signs
since the parties' contracts had also expired the, night
before. It is further undisputed that the Union immediately
sought to reinstitute negotiations when Union President
Powell informed the Respondent's officials, Graham and
Thompson, of the Union's willingness to meet with the
Respondent any time the Respondent wanted to, offering,
in addition, to pull down the picket line if the Respondent
returned to the bargaining table. When nothing came of
this effort, Union Secretary-Treasurer Colley on May 4
requested Thompson to ask Local 627's executive board to
24 L L Ma/ure Transport Company v. N LR.B, 198 F 2d 735, 739 (C.A
5, 1952).
25 N L.R.B. v American National Insurance Co, 343 US 395,402 (1952)
26 N L.R.B'v Reed & Prince Manufacturing Company, 205 F 2d 131, 139-
887
schedule a meeting. Here, too, there was no movement on
the Respondent's part toward meeting with the Union. On
May 10, upon being-advised by her boss, Spaulding, also
an official of the Respondent, that he believed that Hunter,
the chairman of the Respondent's negotiating committee,
would meet with, the Union if she sent a telegram, Colley
promptly did so, advising Hunter -that the Union's
"Committee stands ready,to meet with you at any time."
Again, the Respondent ignored the Union's overture for a
resumption of negotiations. I find it hard to believe that the
Respondent is serious in its assertion that, since this
telegram did not designate a date for a- meeting or
specifically request a meeting it was not obligated to
resume negotiations. Indeed, at or about the time the May
10 telegram was sent, Local 627 Financial Secretary
McClellan was advised by Powell that the Union was
ready to negotiate with the Respondent and was waiting to
hear from it. Finally, not having received a response to the
May 10 telegram, the Union. transmitted a Western Union
Mailgram to the Respondent in which it requested a
resumption of negotiations, and specifically designated
May 20, 21, or 22 as proposed meeting dates. Here, too, the
request was ignored until the Respondent finally answered
the request` by letter dated May 28 and a meeting was
subsequently arranged for June 11.
There can be, no question that a strike does not relieve an
employer of his statutory obligation, "to meet at reason-
able times ^ and confer in good faith" with the employees'
bargaining representative' on its request, be it explicit, or
implicit. Certainly, the circumstance of a strike presents a
suitable opportunity for, breaking whatever, bargaining
impasse had previously developed and for further fruitful
contract negotiations. Here, the Respondent- completely
disregarded the Union's -repeated bargaining overtures.
While a delay under certain circumstances may, 4 not
necessarily reflect a purpose to avoid agreement and may
be excusable, such does not appear to be the situation in
the present case. The evidence ,suggests that the Respon-
dent deliberately intended to avoid negotiations because of
its resentment over its employees' lawful strike activity and
the attendant embarrassing publicity. In fact, as discussed
above, the Respondent right after the strike began
determined to penalize the strikers for their protected
activity by making their ineligible for recall and so
informed strikers Powell and Conrad and Jeannie Carpen-
ter, a prospective replacement. Viewing the Respondent's
delay -in resuming negotiations in the, context of the above
events, I find that the Respondent frustrated diligent and
expeditious bargaining in breach of its statutory obliga-
tion.27
Also revealing, a cynical, approach to the collective,-
bargai ung process is the discriminatory, and punitive
treatment the Respondent- proposed at the resumed
poststrike negotiations to accord strikers who might return
to work respecting their wages, benefits, and other terms
and conditions of employment. As discussed above, the
Respondent made it clear at the June I 1 and 18 meetings
140 (C A 1, 1953), cert. denied 346 U S 887.
27 For this reason, I find that what was initially an economic strike was
converted and prolonged as an unfair labor practice stoke at least beginning
the middle of May
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, upon their return, the strikers would suffer a
substantial reduction in wages28 and benefits pertaining to
sick leave, vacations, and holidays, which they had enjoyed
at the time they went on strike and which the Respondent
had offered them during the April negotiations, including a
wage raise . In addition, the Respondent proposed to
lengthen the strikers' workweek to 40 hours from 37-1/2
hours they had previously worked and to eliminate pension
benefits available to them before the strike.29 Both
conditions of employment the Respondent was also willing
to continue in the April negotiations There can be little
doubt that the, Respondent's imposition upon returning
strikers of terms and conditions of employment inferior to
those enjoyed and offered to them before they went on
strike had the necessary effect of penalizing them for
engaging in protected union and concerted activities.
Conduct having such a destructive impact on employee
statutory rights is certainly prohibited by the Act and
cannot be justified by economic or business reasons 30 -at
least , no justification was persuasively demonstrated in the
present case.
Although the Union expressed strenuous opposition -to
the Respondent's discriminatory and punitive proposals, it
adhered to its position until the August 13 bargaining
session when it modified its proposals to introduce another
form of discrimination. Thus, while agreeing to pay
returning strikers the salaries they received before the
strike , the Respondent insisted that their salaries would be
frozen and that they would not be eligible for any increase
until the highest paid strike replacement reached the
returned strikers' wage level. Again, the Union voiced
disapproval of such discriminatory treatment of returning
strikers in depriving them of wage increases which striker
replacements would be eligible to receive at appropriate
times.
However, the Union's opposition did not produce a
change in the Respondent's bargaining posture until the
October 26 meeting when the Respondent proposed for
strike replacements a $5-a-week wage increase upon
execution of a contract and 6 months later a $10 increase.
As -part of this deal, the Respondent was willing to give
employee Webber, one of the two reinstated strikers, 50
percent of these increases but none to Pittman, the other
reinstated striker.'As expected, the Union refused to join in
this discriminatory offer. In an attempt to mollify the
Union, the Respondent offered to permit the reinstated
strikers to work a 37-1 /2-hour week while requiring the
replacements to continue to work 40 hours. This disparate
treatment of replacements also was not acceptable to the
Union. Finally, the Respondent proposed to grant Webber
100 percent of the increases but still none to Pittman. This
offer, too, evoked the Union's opposition. As for the fringe
benefits and the size of the wage increases when' negotia-
tions broke down on October 26, they, too, remained below
those offered the Union before the strike or those
previously enjoyed by the strikers.
28 As noted above, the Respondent offered returning strikers wages
based on Class A ($160 a week), Class B ($145 a week), and Class C ($130 a
week) levels, depending on the classification they qualified for
29 [nitially during the poststrike negotiations; the Respondent stated that
the subject of pensions was open. Thereafter, it proposed their elimination
It appears to me that a party who advances proposals,
discriminatory and punitive in nature- such as those
described above, could not possibly engage in good-faith
bargaining in a sincere effort to reach agreement. Surely,
the Respondent did not seriously think -for one moment=
and the Union made its position clear on that score-that
its discriminatory proposals would be acceptable to the
Union Especially is this so since, if the Union had acceded
to those proposals, it might well have been guilty of
violating its fiduciary duty of fair representation owing to
its employee constituents. In short, to quote the appraisal
of a bargaining situation made by one court,31 which I find
equally applicable here:
It is difficult to believe that the ... [employer] with a
straight face and in good faith could have supposed
that this proposal had the slightest chance of accept-
ance by a self-respecting union, or even that it ,might
advance the negotiations by affording a basis of
discussion; rather, it looks more like a stalling tactic by
a party bent upon maintaining the pretense of
bargaining.
Accordingly, I find that this is not simply a case of hard
bargaining, as the Respondent urges. Rather, I conclude
that the Respondent failed to engage in good-faith
bargaining contemplated by the Act and that it thereby
violated Section 8(a)(5) and (1) of the Act.
2. With respect to the, denial of reinstatement -
It has been found that the strike which commenced on
May 1 as an economic strike became and was prolonged as
an unfair labor practice strike at least about the middle of
May. Since admittedly no permanent replacements had
been hired at this time, Powell, Conrad, and Webber, as
unfair labor practice strikers, were entitled to reinstatement
on their unconditional application. Therefore, by denying
these employees, reinstatement on May 28, the effective
date of their application, the Respondent, under well-
settled principles, violated Section 8(a)(1) and (3) of the
Act.
Moreover, apart from the fact that these employees were
entitled to reinstatement as unfair labor practice strikers,
the evidence establishes that the Respondent was unlawful-
ly motivated in denying them their jobs. Thus, as related
above, at the inception of the strike the Respondent's
officials,.-annoyed by the employees engaging in the strike,
decided to deprive them of their employment even before
they were displaced. Consequently, when Powell, Conrad,
Webber, and others reported for work on May 28, they
were summarily denied theirjobs. As the named employees
were, discriminated against on account of their participa-
tion in lawful union and concerted activity for mutual aid
and protection, the Respondent thereby violated Section
8(a)(1) and (3) of the Act. -
and subsequently indicated a willingness to continue that benefit
30 Cf N L R B v. Erie Resistor Corp, 373 U S 221 (1963), N LR'B v
Great Dane Trailers, Inc, 388 U S 26 (1967).
N L R B v Reed & Prince Manufacturing Company, supra at 139
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE
Finally, even assuming that Powell, Conrad, and Webber
were still economic strikers when they applied for reinstate-
ment by letter dated May 23, I find that the denial of their
reinstatement would, nevertheless, be in violation of the
same provisions of the Act. It is well established that the
burden of proving that an economic striker had already
been permanently replaced at the time of his unconditional
application rests on the respondent employer. From my
analysis of the evidence, I find that the Respondent has
failed to meet this burden. Thus, in the Respondent's letter
of May 28 sent to the Union in which it rejected the
Union's application for the reinstatement of the seven
strikers, the Respondent stated that the strikers' fobs had
been filled "with the exception of three permanent and one
part-time employee." At the June 18 poststrike negotiation
meeting the Respondent asserted that the quoted statement
was erroneous. However, it appears that the two part-time
jobs previously occupied by Webber were never filled but,
instead, were converted' into full-time jobs. Also of
significance is the fact that, although the Respondent
asserts that Pat Pate was hired on May 20 to replace
Powell, there is credited testimony that on May 22 or 23
Financial Secretary McClellan, in whose office Powell
formerly worked, was unsuccessfully trying to convince
Jeannie Carpenter, a former-employee, to come to work for
him in Powell's place. Also of some interest is the fact that
the Respondent's letter of June 18 shows that Mary
Newnham was hired on May 22 as a replacement for
Conrad. Yet, Jackie Starke, who worked for Business
Representative Huff as a temporary employee for 3 or 4
days before Newnham's employment, transferred to JAC
on May 27 as a replacement for LaMotte.
All things being considered, I find that the Respondent
failed convincingly to prove that Powell, Conrad, and
Webber had been permanently replaced at the time the
Union on May 23 made its unconditional application for
reinstatement on behalf of the strikers.
3. With respect to interference, restraint, and
coercion
I have found above that two of the Respondent's officials
informed employee Conrad and prospective employee
Jeannie Carpenter32 of their decision to deprive striking
employees of their jobs for engaging in the strike against
the Respondent. Clearly such remarks constitute threats of
reprisal for engaging in lawful union and concerted activity
for mutual aid and protection and therefore violate Section
8(a)(1) of the Act.
IV. THE REMEDY
Pursuant to Section 10(c) of the Act, as amended, it is
recommended that the Respondent be ordered to cease
and desist from engaging in the unfair labor practices
found and like and related conduct and that it take certain
affirmative action designed to effectuate the policies of the
Act.
To remedy the Respondent's unlawful refusal to fulfill its
statutory bargaining obligation, I recommend that it be
ordered to bargain, on request, with the Union as the
889
exclusive representative of the Respondent's employees in
the unit found appropriate herein concerning wages, rates
of pay, hours of employment, and other working condi-
tions. It has also been found that the Respondent on May
28, 1974, unlawfully denied employees Powell, Conrad,
and Webber reinstatement to their former' jobs on their
unconditional application. However, as noted above, after
the issuance of the complaint herein and during the
hearing, the Respondent made an appropriate offer of
reinstatement to Conrad and Webber which only Webber
accepted and Conrad waived. Nevertheless, no such
reinstatement offer was made by the Respondent to
Powell. Accordingly, it is recommended that the Respon-
dent offer Powell immediate and full reinstatement to her
former job or, if thatjob no longer exists, to a substantially
equivalent position, without prejudice to her seniority or
other rights and privileges, and make her whole for any
loss of earnings she may have suffered by reason of the
discrimination against her by payment to her of a sum of
money equal to that which she normally would have
earned from the date of the Respondent's denial of
reinstatement on May 28, 1974, to the date of the offer of
reinstatement, less her net earnings during the said period.
As for Conrad and Webber, it is not clear whether they
were reimbursed in the amount customarily ordered by the
Board to remedy the unlawful discrimination against them.
For this reason, it is recommended that the Respondent, if
it has not already done so, take the same action concerning
backpay with respect to Conrad and Webber as is
recommended above with respect to Powell. Of course, the
Respondent will be credited with any moneys it, had
already paid Conrad and Webber. Backpay shall be
computed with interest on a quarterly basis in the manner
prescribed by the Board in F. W. Woolworth Company, 90
NLRB 289 (1950), and Isis Plumbing & Heating Co., 138
NLRB 716 (1962). To facilitate the computation, as well as
to clarify Powell's right to reinstatement, the Respondent
shall make available to the Board, upon request, payroll
and other records necessary and appropriate for such
purposes. The posting of a notice is also recommended.
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The • District Council, Local 627, and JAC are
individually, and collectively' as the Respondent, an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act. '
3. All office clerical employees employed by the
Respondent at its Jacksonville, Ocala, and Gainesville,
Florida, union offices, excluding all other employees,
guards and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in the
32 McClellan's statement to Powell was not alleged in the complaint to
be a violation of the Act
890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above-described unit for the purposes of collective bargain-
ing within the meaning of Section 9(a) of the Act.
5. By refusing to bargain collectively in good faith with
the Union as the exclusive representative of the employees
in the above-described unit the Respondent engaged in
unfair labor practices within the meaning of Section 8(a)(5)
of-the Act.
6. By, denying striking employees Powell, Conrad, and
Webber reinstatement on May 28, 1974, on their uncondi-
tional application, because of their union and concerted
activities, the Respondent discriminated against them to
discourage membership in a labor organization in violation
of Section 8(a)(3) of the Act.
7. By the foregoing conduct, and by informing an
employee and a prospective employee that the strikers lost
their jobs and would not be reinstated because they
engaged in a strike, the Respondent interfered with,
restrained, and, coerced_ employees in the exercise of their
guaranteed right to engage in union and concerted
activities for the purpose of collective bargaining or other
mutual aid or protection and thereby violated Section
8(a)(1) of the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of, the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, as amended, I hereby issue the following recommend-
ed:
ORDER33
The Respondents, Carpenters' District Council of Jack-
sonville, Florida and Vicinity; Carpenters Local Union
No. 627, of the United Brotherhood of Carpenters and
Joiners of America, AFL-CIO; and North Florida
Carpenters Joint Apprenticeship Committee, of Jackson-
ville, Florida, their officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Refusing to bargain collectively in good faith with
Office & Professional Employees' International Union,
Local 73, AFL-CIO, as the exclusive representative of the
employees in the unit described below, concerning rates of
pay, wages, hours of employment, and other conditions of
employment:
All office, clerical employees employed at the Respon-
dents' union offices in Jacksonville, Ocala, and Gaines-
ville, Florida, excluding all other employees, guards
and supervisors as defined in the Act.
(b) Refusing to reinstate or otherwise discriminating
against employees for engaging in a protected strike or
other, lawful union or concerted activities for mutual aid
and protection with respect to wages, hours, or other terms
and conditions of employment.
(c) Informing employees or prospective employees that
strikers who engaged in a lawful strike would lose their jobs
and would not be reinstated -in their former positions
because of their strike activity.
(d) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
right to self-organization, to form labor organizations, to
join or assist the above-named Union or any other labor
organization, to bargain collectively' through representa-
tives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all
such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:._
(a) Upon request, bargain collectively in good faith, with
the above-named Union, as the exclusive representative of
all the employees in the unit described above concerning
rates of pay, wages, hours of employment, and other
conditions of employment and, if an understanding is
reached, embody such understanding in a signed agree-
ment.
(b) Offer Lois Powell immediate and full reinstatement
to her former job or, if that job no longer exists, to a
substantially equivalent position, without prejudice to her
seniority or other rights and privileges.
(c) Make whole Lois Powell, Gloria Conrad, and Shirley
Webber for any loss of earnings they may have suffered by
reason of the discrimination against them in the manner set
forth in the section of this Decision entitled "The
Remedy."
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and' copying, all
payroll records, social security payment records, timecards,
personnel records and reports, and all other records
necessary and useful in analyzing the amount of backpay
due and the right to reinstatement and employment under
the terms of this recommended Order.
(e) Post at their union offices in Jacksonville, Ocala, and
Gainesville, Florida, the attached notice marked
"Appendix." 34 Copies of said notice, on forms provided by
the Regional Director for Region 12, after being duly
signed by the Respondents' authorized representatives,
shall be posted by the Respondents immediately upon
receipt thereof, and be maintained by them for 60
consecutive days thereafter, in conspicuous places, where
notices to employees are customarily posted. Reasonable
steps shall be taken to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the Regional Director for Region 12, in
writing, within 20 days from the date of this Order, what
steps the Respondents have taken to comply herewith.
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 herein shall, as provided 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.
34 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."
CARPENTERS' DISTRICT COUNCIL OF JACKSONVILLE 891
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse, on request, to bargain collec-
tively in good faith with Office & Professional
Employees' International Union, Local 73, AFL-CIO,
as the exclusive representative of the employees in the
unit described below, concerning rates of pay, wages,
hours of employment or other conditions of employ-
ment. The bargaining unit is:
All office clerical employees employed by the
Respondents at their Jacksonville, Ocala, and
Gainesville, Florida, union offices, excluding all
other employees, guards and supervisors as
defined in the Act.
WE WILL NOT deny any employees, on their
unconditional application, reinstatement to their for-
mer jobs or, if those jobs no longer exist, to substantial-
ly equivalent positions, or otherwise discriminate
against them because they engaged in a lawful strike
called by the Union.
WE WILL NOT inform or advise employees or
prospective employees that striking employees would
lose their jobs and would not be reinstated in their
former jobs because they engaged in a lawful strike
against us.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their right to self-organization, to form labor organiza-
tions, to join or assist the above-named Union or any
other labor organization, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities.
WE WILL, upon request, bargain collectively in good
faith with the above-named Union, as the exclusive
representative of all the employees in the unit described
above with respect to rates of pay, wages, hours of
employment, and other conditions of employment and,
if an understanding is reached, embody such under-
standing in a signed agreement.
WE WILL offer Lois Powell immediate and full
reinstatement to her former,job o if that job no longer
exists, to a substantially equivalent position, without
prejudice to her seniority or other rights and privileges.
WE WILL reimburseLois Powell, Gloria Conrad, and
Shirley Webber for any loss of earnings suffered by
reason of the discrimination against them.
CARPENTERS ' DISTRICT
COUNCIL OF JACKSONVILLE,
FLORIDA AND VICINITY
CARPENTERS LOCAL UNION
No. 627, OF THE UNITED
BROTHERHOOD OF
CARPENTERS AND JOINERS
OF AMERICA, AFL-CIO
NORTH FLORIDA
CARPENTERS JOINT
APPRENTICESHIP COMMITTEE