Forester Beverage Corporation

National Labor Relations Board - Board Decisions

Nov 1, 1982

265 N.L.R.B. 285 (N.L.R.B. 1982)

FORESTER BEVERAGE CORPORATION
Forester Beverage Corporation and Chauffeurs,
Teamsters and Helpers Local Union No. 391,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 11-CA-8048, 11-
CA-8713, 11-CA-9084, and 11-CA-9176
November 1, 1982
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On February 23, 1981, Administrative Law
Judge David L. Evans issued the attached Decision
in this proceeding.' Thereafter, Respondent and
the General Counsel filed exceptions and briefs in
support thereof, and Respondent filed an answering
brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs2 and has decided to affirm the rulings, find-
' On March 9, 1981, the Administrative Law Judge issued an "Erra-
tum" to his Decision, to which no party has excepted.
2 Following the filing of briefs, Respondent requested the Board to
take notice of a recently issued court case. In considering the exceptions
to the Administrative Law Judge's Decision, we have examined the case
to which Respondent refers.
a The Administrative Law Judge found that the granting of unilateral
wage increases, as well as certain other unilateral changes instituted in
May 1980, violated Sec. 8(aX5) of the Act, based on his conclusion that
Telautograph Corporation, 199 NLRB 892 (1972), does not license unilat-
eral actions, as opposed to a refusal to enter plenary contract negotia-
tions, in the face of a pending decertification petition. (Although Telauto-
graph has been overruled by the Board in Dresser Industries Inc., 264
NLRB No. 145 (1982), its possible application has nevertheless been con-
sidered here since the Board has determined to apply the rule announced
in Dresser on a prospective basis only.) While we agree that Respondent's
unilateral changes were violative of Sec. 8(aXS), we note that the Telau-
tograph case applies only in a context free of any other unfair labor prac-
tices. See Auroprod, Inc., 223 NLRB 773 (1976). Since Respondent here
did engage in other unlawful conduct prior to the filing of the decertifi-
cation petition, as discussed infra, Telautograph does not apply to exoner-
ate any unilateral actions occurring after the filing of the decertification
petition.
Respondent includes in its brief to the Board an employee petition,
claiming it was attached to a decertification petition and filed in support
thereof, and argues that it is part of the record since the Administrative
Law Judge took official notice of the decertification petition. The Gener-
al Counsel filed a motion to reject exhibits and strike, Respondent filed a
response to the General Counsel's motion, and the General Counsel filed
a response to Respondent's response. We note that the only purpose for
which Respondent asked the Administrative Law Judge to take official
notice of the decertification petition was to show "that it [the decertifica-
tion petition] is on file." For the following reasons, we hereby strike the
employee petition and all references to it.
A showing of interest is for administrative purposes only and is not
identical to a decertification petition (nor is it served on the parties along
with a decertification petition). When the Administrative Law Judge ac-
cepted Respondent's request that he take official notice of the decertifica-
tion petition, he in fact did not make the employee petition part of the
record. Further, we note that the limited purpose for which Respondent
requested the Administrative Law Judge to take official notice of the de-
certification petition provides no basis at all for considering the employee
265 NLRB No. 35
ings,3 and conclusions4 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein. 5
The General Counsel excepts to the Administra-
tive Law Judge's failure to find that Respondent
violated Section 8(aX3) when it refused to offer
newly created positions resulting from the expan-
sion of the bargaining unit to qualified strikers who
had unconditionally offered to return to work. We
find merit in the General Counsel's exception.
On August 22, 1977, employees in the bargaining
unit commenced an economic strike. On November
21, 1977, the Union, on behalf of the strikers, made
an unconditional offer to return to work. In Janu-
ary and March 1978, two employees who had been
hired as permanent replacements prior to the strik-
ers' unconditional offer to return to work terminat-
ed their employment. Respondent hired two new
employees, Ricky Bullis and Oliver Eugene Gant,
to fill these vacancies.
A complaint issued in Case 11l-CA-7619 alleging
that Respondent had violated the Act by refusing
to reinstate two strikers who had unconditionally
offered to return to work to fill the vacancies cre-
ated by the permanent replacements' departure. At
the hearing on the complaint, the parties agreed to
settle the case. The settlement agreement provided,
inter alia, that Respondent would:
petition. Finally, no foundation exists in the record to establish the em-
ployee petition's authenticity (a burden resting on a movant) nor its valid-
ity (into which an opposing party is entitled to inquire once authenticity
has been established). See, e.g., Gordonsville Industries Inc., 252 NLRB
563, 597-602 (1980). We therefore are unable to consider the employee
petition for any purpose.
4 In view of the finding that Respondent did not validly offer employ-
ee Clonch reinstatement on October 3, 1979, we believe it unnecessary to
pass on the Administrative Law Judge's discussion regarding Respond-
ent's failure to offer the draft salesman position to employee Staley on
October 4, 1979, or on the Administrative Law Judge's interpretation of
New Era Electric Cooperative, Inc., 217 NLRB 477 (1975). Under the cir-
cumstances of this case, our adoption of the Administrative Law Judge's
finding that Clonch was not validly offered reinstatement on October 3,
1979, effectively moots the issue of whether Respondent should have of-
fered that same job to Staley on October 4, 1979.
* We note and correct accordingly the following inadvertent errors in
the Administrative Law Judge's Decision. In sec. IIl,A, par. 2, August
19, 1977, should be September 19, 1977; in sec. Ill,A, par. 3, September
27, 1977, should be September 19, 1977; in sec. III,B, par. I, Case II-
CA-9619 should be Case ll-CA-7619; in sec. Ill,F, par. 1, June 2 should
be June 16, and July 3 should be July 21; in Conclusion of Law 5(b),
May 12, 1980, should be May 19, 1980, and, in Conclusion of Law 7,
May 12, 1980, should be May 19, 1980. Also, we note that the section of
the Administrative Law Judge's Decision entitled "The Remedy" inad-
vertently omits employee Gryder from the requirement that Respondent
make whole certain named individuals. We hereby correct this error ac-
cordingly.
In addition to recommending an Order to remedy specific 8(aX5) viola-
tions, the Administrative Law Judge provided for a general bargaining
order. However, the complaint did not allege, nor did the Administrative
Law Judge find, that Respondent generally refused to bargain with the
Union. We shall therefore delete par. 2(b) of the Administrative Law
Judge's recommended Order. See, e.g., Alexander Linn Hospital Associ-
ation, 244 NLRB 387 (1979).
285
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. . . make whole and offer reinstatement to
. . . Kenneth Roy Huffman and Ricky J.
Pierce for any losses they may have suffered
by [the] alleged refusal to reinstate them . . .
[and] offer full reinstatement to [the] employ-
ees who were on strike November 30, 1977,
and before, and who were permanently re-
placed before that date, as their former or sub-
stantially similar positions become available,
and before hiring new employees to fill [those]
positions.
Following the settlement agreement, on Decem-
ber 5, 1978, Respondent reinstated Huffman and
Pierce, but also retained Bullis and Gant. The Ad-
ministrative Law Judge found that nothing in the
settlement agreement required discharging any em-
ployees, and that Respondent's reinstating of Huff-
man and Pierce "appears to be nothing more than a
concession made in an attempt to settle the
charges" pending at the time of the hearing. We
disagree with the Administrative Law Judge's con-
clusion.
An economic striker is entitled to reinstatement
to his former job or to a substantially equivalent
job upon an unconditional offer to return to work,
unless an employer has hired permanent replace-
ments prior to the offer to return to work. The
Laidlaw Corporation, 171 NLRB 1366, 1369-70
(1968), enfd. 414 F.2d 99 (7th Cir. 1969); N.L.R.B.
v. Mackay Radio & Telegraph Co., 304 U.S. 333,
3 4 5 - 34 6 (1938). And, even if an employer has hired
permanent replacements, it must, when and if such
a job becomes available for which a striker is quali-
fied, offer that job to an economic striker. Thus, to
place a new employee rather than a striker await-
ing reinstatement in a vacant position (for which
the striker is qualified) created by the departure of
a permanent replacement violates the Act. Fire
Alert Company, 207 NLRB 885, 886 (1973); The
Laidlaw Corporation, supra.
Regarding reinstatement rights, we perceive no
legal difference between a vacancy created by the
departure of a permanent replacement and an open-
ing resulting from the expansion of the unit. A
qualified unreinstated striker is entitled to an offer
of reinstatement to the newly created position re-
sulting from the expansion of the unit, just as he is
entitled to an offer of reinstatement to a position
vacated by a permanent replacement, before an em-
ployer may recruit a new employee for the newly
created position.
We find that, when Respondent reinstated Huff-
man and Pierce while retaining Bullis and Gant, it
essentially expanded the size of the unit by two.
Respondent was obligated to offer the two newly
created positions to strikers awaiting reinstatement
before placing in those positions new employees
hired after the strikers' unconditional offer to
return to work. 6 We therefore find that Respond-
ent, when it created two new positions on Decem-
ber 5, 1978, should have first offered those posi-
tions to unreinstated strikers Kenneth Ray Huffman
and Steve Staley, who occupied positions substan-
tially equivalent to those prior to the strike. Ac-
cordingly, we shall order that Respondent make
these employees whole for any loss of earnings
they may have suffered by reason of Respondent's
discriminatory failure to reinstate them.7
AMENDED CONCLUSIONS OF LAW
We amend the Administrative Law Judge's Con-
clusions of Law as follows:
1. Substitute the following for Conclusion of
Law 5(b):
"(b) Altering existing employee delivery routes,
creating new employee delivery routes, and remov-
ing the helper from package sales delivery routes
on or about May 19, 1980."
2. Substitute the following for Conclusion of
Law 7:
"7. Respondent violated Section 8(a)(1) and (3)
of the Act when, beginning May 19, 1980, it re-
fused to offer vacancies created by new jobs and
the departure of strike replacements to qualified
strikers Benjamin F. Staley, Eddie Teague, and
Robert Gryder, who were then awaiting reinstate-
ment in preference to strike replacements who
were then on the payroll."
3. Insert the following as Conclusion of Law 8,
and renumber the subsequent Conclusion of Law
accordingly:
"8. Respondent violated Section 8(a)(1) and (3)
of the Act when, on December 5, 1978, it refused
to offer newly created positions resulting from the
expansion of the unit to qualified strikers awaiting
reinstatement in preference to employees hired sub-
sequent to November 21, 1977."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
· Absent specific factual proof that the new jobs resulting from the ex-
pansion of the work force were not created in response to general busi-
ness needs, we decline to speculate that Respondent's expansion departed
from normal business practices. Cf. Neptune Water Meter Company, a Di-
vision of Neptune International Corporation v. N.LR.B., 551 F.2d 568, 570
(4th Cir. 1977) (court would not assume something it knew to be false:
that businessmen hire and fire without any reason at all).
I The record indicates that, in or about October 1979, Respondent of-
fered Kenneth Ray Huffman and Steve Staley reinstatement to their
former positions. The two individuals declined these offers. Of course,
Respondent's backpay obligations would be tolled when the two employ-
ees declined the valid offers of reinstatement.
286
\ FORESTER BEVERAGE CORPORATION
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Forester Beverage Corporation, North Wilkesboro,
North Carolina, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph l(d) and re-
letter the subsequent paragraphs accordingly:
"(d) Refusing to offer newly created positions re-
sulting from the expansion of the unit to qualified
strikers awaiting reinstatement in preference to em-
ployees hired subsequent to November 21, 1977."
2. Substitute the following for paragraph 2(b):
"(b) Make Kenneth Ray Huffman and Steve
Staley whole for any loss of earnings they may
have suffered by reason of the discriminatory fail-
ure to reinstate them on December 5, 1978, in the
manner set forth in the section of the Administra-
tive Law Judge's Decision entitled 'The Remedy,'
as modified herein."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the chance
to give evidence, the National Labor Relations
Board has found that we violated the National
Labor Relations Act, as amended, and has ordered
us to post this notice. We intend to abide by the
following:
WE WILL NOT refuse to bargain collectively
with the Union by unilaterally changing or
eliminating our employees' wages, hours, or
other terms and conditions of employment.
WE WILL NOT decline to offer initial job va-
cancies created by new jobs or the departure
of strike replacements to qualified strikers
awaiting reinstatement in preference to strike
replacements on the payroll.
WE WILL NOT refuse to offer newly created
positions resulting from the expansion of the
unit to qualified strikers awaiting reinstatement
in preference to employees hired subsequent to
November 21, 1977.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of the rights guaranteed
them in Section 7 of the Act.
WE WILL offer employees Benjamin F.
Staley, Eddie E. Teague, and Robert Gryder
immediate and full reinstatement to their
former or substantially equivalent positions,
without prejudice to their seniority or other
rights and privileges, and WE WILL make them
whole for any loss of earnings they may have
suffered as a result of our discrimination
against them, with interest.
WE WILL make whole Dennis W. Clonch
for any losses of pay or other benefits which
he may have suffered as a result of our dis-
crimination against him, with interest.
WE WILL make Kenneth Ray Huffman and
Steve Staley whole for any loss of earnings
they may have suffered by reason of our dis-
crimination against them, with interest.
WE WILL, upon the Union's request, rescind
any or all changes in terms and conditions of
employment made by us after May 1, 1980,
which were unilateral actions in derogation of
the status of the Union as the collective-bar-
gaining representative.
FORESTER BEVERAGE CORPORATION
DECISION
STATEMENT OF THE CASE
DAVID L. EVANS, Administrative Law Judge: Upon
charges filed by Chauffeurs, Teamsters and Helpers
Local Union No. 391, affiliated with International Broth-
erhood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (herein called the Union), against
Forester Beverage Corporation (herein called Respond-
ent), the General Counsel issued a complaint alleging
violations of Section 8(a)(1), (3), and (5) of the National
Labor Relations Act, as amended, herein called the Act.
Respondent filed an answer to the complaint denying the
commission of any unfair labor practices. Hearing was
held before me on August 18 and 19, 1980. The General
Counsel and Respondent have filed briefs which have
been carefully considered.
Upon the entire record and from my observation of
the demeanor of the witnesses and the inherent probabil-
ities and improbabilities of the testimony of each witness,
I make the following:
FINDINGS AND CONCLUSIONS
I. THE OPERATIONS OF RESPONDENT
Respondent is and has been at all times material herein
a North Carolina corporation with a facility located in
North Wilkesboro, North Carolina, where it is engaged
in the wholesale distribution of beer. During the 12
months preceding issuance of the original complaint
herein, a representative period, Respondent received at
its North Wilkesboro, North Carolina, facility, directly
from suppliers located outside the State of North Caroli-
na, beverages valued in excess of $50,000. The complaint
alleges, Respondent admits, and I find that Respondent is
287
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an employer engaged in commerce within the meaning
f Section 2(6) and (7) of I I c Act.
II. THE LABOR ORGANIZATIOUN INVOLVED
The complaint alleges, Respondent admits, and I find
that the Union is a labor organization within the meaning
of Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent is a beer distributorship which services
several counties in north central North Carolina. It has
employed four relevant classifications of employees in
the operation of that business: truckdriver-salesmen of
packaged beer (herein called package salesmen); truck-
driver-salesmen of draft beer (herein called draft sales-
men); helpers on the package truck; and warehousemen.
At the time the events of this case arose, 1976, the fol-
lowing individuals were employed in the classification
set opposite their respective names and each individual's
date of hire is listed in the third column:
strike continued. These respective positions were repeat-
, l, ill .- c.qucnt [Ih: )ne calls between Respondent's attor-
ney Bradl-tey and Union Representative Sherrill without
change by either side.'
Since, after bargaining in good faith, the parties
reached a deadlock in the negotiations on September 27,
1977, the parties were then at a state of impasse, as I find
and conclude.
On November 21, 1977, the Union, on behalf of the
strikers, made an unconditional offer to return to work.
None of the offers were then accepted.
On January 6, 1978, replacement warehouseman Dale
Junior Eller quit and was replaced on January 10, 1978,
by Ricky Bullis. Bullis is listed as a "warehouseman-
helper" on Respondent's records; while the positions
were nominally combined, Bullis was a helper on the
package truck of replacement Bell's truck. Replacement
Jimmy Dorsett, a warehousemen, quit on March 3, 1978,
and on May 1, 1978, Respondent hired Oliver Eugene
Gant also as a "warehouseman-helper" to replace Dor-
sett.
Classification
Warehousemen
Package salesman
Package salesman
Helper
Package Salesman
Helper
Draft Salesman
Helper
Helper
Date
Hired
10/10/47
8/03/67
3/01/69
7/28/72
12/01/72
3/01/73
8/06/73
8/13/73
10/08/75
At all material times the following persons have been
supervisors of Respondent within Section 2(11) of the
Act: Jim Whittington, president and general manager;
Dean Johnson, supervisor; Joan Padley and Jennifer
Green, coowners.
A. Bargaining and Strike
On May 14, 1976, after a Board-conducted election,
the Union was certified as the collective-bargaining rep-
resentative of the above employees. Bargaining began on
June 3, 1976. On August 22, 1977, the employees began
an economic strike. Eight of the nine above-listed em-
ployees joined the strike, Clyde Huffman being the only
exception. Respondent began immediately hiring perma-
nent replacements and made Gary LeHardy a permanent
employee in the position of package salesman. (LeHardy
had been hired as a "general duty" day laborer on
August 18, 1977, according to Respondent's payroll
records.) Seven other permanent replacements were
hired by September 12, 1977, to bring the total employee
complement back to nine.
Negotiations continued, the last meeting of which was
conducted on August 19, 1977. Agreement was reached
except for disagreement on one issue: The Union refused
to agree to Respondent's last package proposal unless all
the permanent replacements were terminated (immediate-
ly or in the near future) and the strikers reinstated. Re-
spondent refused to terminate the replacements and the
B. Failure To Discharge Strikers After Settlement
Agreement
On November 20, 1978, after complaint had issued in
Cases 11-CA-7182 and 11-CA-9619, a hearing was
opened before Administrative Law Judge Alvin Leiber-
man. The parties entered a settlement agreement which
provides that Respondent would:
. . . make whole and offer reinstatement to . . .
Kenneth Roy Huffman and Ricky J. Pierce for any
losses they may have suffered by [the] alleged refus-
al to reinstate them . .. [and] offer full reinstate-
ment to [all] employees who were on strike Novem-
ber 30, 1977, and before, and who were permanent-
ly replaced before that date, as their former and
substantially similar positions become available, and
before hiring new employees to fill [those] positions.
The agreement did not refer to the replacements of
Pierce and Huffman. Specifically, the settlement agree-
ment did not expressly require the discharge of anyone.
Huffman and Pierce were reinstated and worked as
warehousemen again. No strike replacements were dis-
charged when they returned to work, and the employee
complement rose to 11.
The General Counsel states in his brief: "When, on
December 5, 1978, Respondent reinstated Ricky Pierce
and Kenneth Roy Huffman, two of the initial eight eco-
nomic strikers, Respondent failed to simultaneously ter-
minate its two employees Ricky Bullis and Gene Gant
whom it had hired after the unconditional offer to the
employer." In advancing this agreement, the General
Counsel contends that Respondent's failure to discharge
two persons when it agreed in settlement to reinstate
Huffman and Pierce adversely affected the Laidlaw2
i In reaching the factual findings contained in this paragraph, I credit
Bradley over Sherrill who, disingenuously I believe, claimed inability to
remember demanding the discharge of replacements.
I The Laidlaw Corporation, 171 NLRB 1366 (1968), enfd. 414 F.2d 99
(7th Cir. 1969).
Employee
Clyde C. Huffman
Benjamin F. Staley
Edward E. Teague
Ricky J. Pierce
Robert L. Gryder
Kenneth Roy Huffman
Dennis W. Clonch
Kenneth Ray Huffman
Steve W. Staley
288
)RESTER BEVERAGE CORPORATION
rights )t the other employees who were then available
and could have performed the work of helpers of ware-
housemen.
There is nothing in the settlement agreement which re-
quires the discharge of any employees. Respondent's put-
ting Kenneth Roy Huffman and Ricky Pierce back on
the payroll appears to be nothing more than a concession
made in an attempt to settle the charges which were
then outstanding. The strikers were economic strikers,
not unfair labor practice strikers, and there was no duty
to discharge anyone simply because Respondent had en-
tered a settlement agreement attempting to dispose of the
claim of two economic strikers.
Accordingly, I find and conclude that the General
Counsel has not proven a violation of the Act by Re-
spondent's failure to discharge any employees when
Kenneth Roy Huffman and Ricky Pierce were reinstat-
ed.
C. Failure To Reinstate Clonch on October 3, 1979
On August 27, 1977, W. D. Anthony was hired to re-
place the then striking Clonch as draft salesman. Antho-
ny quit effective October 5, 1979.
On October 3, 1979,3 Whittington and Johnson went
to a service station jointly owned by Clonch and his
father. Whittington and Johnson offered Clonch rein-
statement on that date. There is a sharp factual dispute
on one point of the conversation: Did Clonch agree to a
24-hour limit on the time he had to consider the offer?
Clonch testified:
A. Jim Whittington told me that he had come by
the station to offer me reinstatement as the Draft
Beer Salesman at Forester Beverage, and I asked
him "How long did I have before I could make up
my mind, and he replied and said: "24 hours"; and I
told him, I said, "Well, Jim, I have established a
business here." I said: "I have a half ownership in
this service station, and there is no way that I could
possibly give you an answer in 24 hours" and so
then Dean Johnson said, "yes, 24 hours"; and so, I
went and asked him, asked him again, you know,
"Can I have more time then that," and he said,
"No, I need to know tomorrow"; and so, I said,
"Well, I will have to go talk with my Dad and my
wife, because I have got this business, and I will try
to let you know something, but I said "24 hours is
just not enough time for me."
Whittington testified:
A. Dean Johnson, our draft supervisor, and
myself drove to this service station; this was Octo-
ber third, 1979; and I informed Mr. Clonch that we
were there to offer him his job back as Draft Beer
Salesman at Forester Beverage.
3 There was a great deal of conflict on this date which, ultimately,
would be important only for the purposes of backpay; therefore, a full
discussion of how I arrived at this date is unnecessary. The General
Counsel had extensively briefed the question, but, fully appreciating the
credibility problems which are intrinsic in Respondent's testimony on the
point, I do credit that testimony and conclude that these events occurred
on October 3 and 4, 1979.
The first question he asked me was: What was
the pay?
I told him, and he said, "Jim, I don't know
whether you know it or not, I am co-owner of this
station with my father; if I should decide to leave, it
would create a problem with my father. Therefore,
I would like to have time to discuss this with my
father and my wife, and then return to you later;
and he said, "when do you have to have an
answer?"
I said, "would 24 hours be sufficient" and he said
"it would." And so, we thanked Mr. Clonch and
drove back to the office. It was approximately 3:00
p.m. in the afternoon.
Johnson testified essentially the same as Whittington.
On October 4, 1979, Clonch went to Whittington's
office. Clonch testified that, while he and Whittington
were alone:
A. Well, I went down and I told Jim, I said, I
explained to him one more time that I did have
half-ownership in the business and that 24 hours
wasn't enought time for me to find somebody to
run the service station for me or for me to get out
of it, and he agreed and he still insisted that the 24
hours he had to know that he had to know that
evening; and I said, "Well, there is no way"; and he
said that "he was sorry and that he understood that
I could not find anybody in that length of time."
Whittington's testimony is completely different:
A. Yes, sir, I heard from Mr. Clonch the follow-
ing morning, October 4th at 10:30 a.m. He came to
my office and said that "he had discussed this with
his wife, and his father, and the hardship that it
would create leaving his father, he decided to stay
in the service station business." He also elaborated
on the amount of money that he was making at the
station and that was basically the conversation. I
thanked him and he left at approximately 11:00 a.m.
On October 8, 1979, Whittington sent a letter to Clonch
stating:
This is to confirm our offer made to you on 3 Octo-
ber 1979, of reinstatement as an employee and your
declining of that office [sic] on 4 October 1979.
Respondent did not offer the draft salesman job to any
other unreinstated former striker. Instead it promoted
Kenneth Roy Huffman from warehouseman-helper to
that job. No one was hired to recalled to replace Huff-
man as warehouseman-helper. Huffman remained the
draft salesman until the time of the hearing.
On December 28, the complaint issued alleging that
Respondent had failed properly to reinstate Clonch.4 On
February 22, Whittington sent Clonch a letter stating:
4 The phrasing of the specific allegation will be discussed infr.
289
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sir:
The existing position of draft beer salesman has
been vacated by the employee hired to replace you
when you abandoned the position to engage in
strike activities. Therefore, as an economic striker
with a claim to reinstatement to employment with
the Company, we now make you an offer of rein-
statement as draft beer salesman.
We will discuss the details of this position and
your reinstatement with you in a personal confer-
ence. For this purpose we will meet with you on
February 28, 1980, at 10:00 a.m. o'clock at the
Company offices. If this date or time is not conven-
ient, please call me and arrange another time.
There was not a new vacancy. Huffman still had the job
of draft salesman although listed as "temporary" in Re-
spondent's files.
Clonch went to the office at the appointed hour where
he was met by Whittington and Harry Padley. 5 That
meeting was recorded by Respondent. The stipulated
transcript opens with Whittington saying "Dennis, we
are offering you your job back as draft beer salesman.
Are you interested?" Clonch asked for 2 weeks to con-
sider the matter because a change in jobs would involve
divesting himself of his interest in the service station.
Padley and Whittington agreed to give 2 weeks for
Clonch to consider the matter then:
MR. PADLEY: have nothing else, do you have
anything else Jim?
MR. WHITrINGTON: don't have anything. Do you
have any questions or anything, Dennis?
MR. CLONCH: No, uh as I say, I just, well I'm
sorry we got the misunderstanding the last time. I
thought you said I [sic] had to know the next day.
Of course that was my understanding you know.
Dean spoke up and he said "You've got till tomor-
row," you know. You remember he saying that
over there; he said "You've got till tomorrow to
make up your mind." I said golly, you know.
MR. PADLEY: We don't argue about that. We'll
make as a matter of fact, that was in the statements
made by Jim and Dean to the investigator from the
NLRB, that, all we wanted from you was a state-
ment within the twenty four hours as to whether
you were interested.
MR. CLONCH: Oh well yeah, I was interested but
you know I couldn't I thought well I guess we both
got a misunderstanding but you know, I understood
well you come in tomorrow, you say O.K. I'll take
the job and you're put to work that day. I'm sorry
we got that misunderstand but-
MR. WHITTINGTON: We needed to know whether
you were interested and gave you twenty-four
hours I think that's what we agreed on, would
twenty four hours be sufficient, and you said yes
and the next morning about 10:30 you came over
and said you were not interested.
MR. CLONCH: Well uh as I say the reason for
that is you know I couldn't that's putting it on the
Padley was not specifically identified. Presumably he is related to
coowner Joan Padley and it is clear from the context and content of the
February 28 meeting that he was present as an agent of Respondent.
line pretty good cause it does concern a lot of
detail. My wife's involved, my Dad's involved
and-
MR. PADLEY: We didn't expect you to come to
work.
MR. WHITTINGTON: No.
MR. PADLEY: All we wanted to know was were
you interested so we could do some planning.-So
we figured that twenty-four hours was a logical
period of time in order for you to decide O.K. I'm
interested or I'm not interested.
The quotation marks in the transcript are not always
correctly placed and Clonch was obviously maladroit in
his utilization of pronouns. However, it is clear that
Clonch was relating that on October 3, 1979, he had
gotten an ultimatum to decide within 24 hours if he
would accept reinstatement. Clonch's recitation was un-
challenged by Whittington and even conceded to be cor-
rected by Padley. It is further true that Clonch had
agreed that "that's putting it on the line pretty good"
when Whittington related that Clonch had agreed to the
24-hour limitation, but, assuming that the response by
Clonch was an admission of fact, it is clear that any
"agreement" to the 24-hour deadline, and the response
within that period, came only after the ultimatum by
Whittington and Johnson. Furthermore, had Clonch
freely decided to decline the offer of reinstatement, there
would have been no necessity for him to have left his
service station and go to Respondent's office to tell them
of that fact on October 4. He need only have done noth-
ing. The only logical reason for Clonch's going to the
office on October 4 was, as he testified, to plead for
more time to consider the matter.
Other logical problems are inherent in Respondent's
position that Clonch agreed freely to the 24-hour dead-
line. If Respondent had really believed that it had made
an effective offer of reinstatement on October 3, 1979, it
would not have made a reoffer in the first place.6 Addi-
tionally, Whittington logically would have recited a
belief that his prior offer was valid in his letter of Febru-
ary 22 and at some point during the meeting on Febru-
ary 28. Specifically, during the February 28 meeting
either Whittington or Padley would logically have
claimed that they had made a valid offer before, rather
than leaving Clonch's statements unchallenged or con-
ceding that they were essentially correct.
Accordingly, I find and conclude that Respondent did
not validly offer Clonch reinstatement on October 3,
1979, as Respondent did not give Clonch a reasonable
period of time to consider the offer made that date.
Clonch did freely decline the valid offer of reinstate-
ment first made in Respondent's letter of February 22,
1980.
D. Refusal To Reinstate Ben F. Staley on October 4
When Clonch refused the offer, herein found legally
inadequate, of reinstatement to the job of draft beer
salesman, Respondent promoted the reinstated ware-
" Cf. West Side Plymouth, Inc., 170 NLRB 686, 692 (1968).
290
FORESTER BEVERAGE CORPORATION
houseman Kenneth Roy Huffman to that job rather than
reinstating Ben F. Staley. Staley was a package salesman
at the time the strike started but had worked as a draft
beer salesman from 1967 to 1972. The General Counsel
contends that since Staley had worked at the job of draft
beer salesman in the past and was undisputedly qualified
to perform it, Staley should have been offered the draft
beer salesman job and it was a violation of his Laidlaw
rights not to have done so. As authority for this proposi-
tion, the General Counsel cites Aluminum Cruiser, Inc.,
234 NLRB 1027 (1978), which, in turn, cites Brooks Re-
search & Manufacturing, Inc., 202 NLRB 634, 635-636
(1973), where it was held that:
. .. economic strikers who unconditionally apply
for reinstatement when their positions are filled by
permanent replacements are entitled to full rein-
statement upon departure of replacements or when
jobs for which they are qualified become available
In this case the General Counsel contends, and I
agree, that the jobs of draft salesmen and package sales-
men are not substantially equivalent jobs. In Aluminum
Cruisers and Brooks Research the jobs which the unrein-
stated strikers sought were substantially equivalent to
those left open by the departure of the replacements.
The distinction is critical as an employer has no duty to
offer strikers' jobs which are not equivalent to those pre-
viously held. New Era Electric Cooperative, Inc., 217
NLRB 477 (1975).
My reasons for concluding that the jobs of draft sales-
men and package salesmen are not substantially equiva-
lent are the following:7 (1) The annual earnings of pack-
age salesmen were approximately double that of draft
beer salesmen. (2) Until the events of this case, when Re-
spondent made unilateral changes (herein found unlaw-
ful), all package salesmen had helpers and did little or no
lifting; draft beer salesmen had to regularly lift kegs of
beer weighing as much as 160 pounds. (3) The package
salesmen had no training program; their primary function
was salesmanship and driving the trucks. The draft beer
salesmen had to have extensive training, sometimes pro-
vided by the national brewery for which Respondent dis-
tributes beer. This training, whether provided by the
brewery or by on-the-job training, involved how to tap,
connect, and clean beer lines, and the physics of getting
the beer from the keg through and out the spout. Noth-
ing like that was involved in the selling of package beer.
(4) After the package salesman completed his route, he
was free to leave in the evening; the draft salesman had
to remain until approximately 5 a.m. (5) The package
salesman did not load and unload his truck; the draft
beer salesmen did both. (6) The package salesman did
not get his hands or clothes dirty in his work; the draft
salesman, in handling the kegs and pumping equipment,
did. (7) The package salesmen normally are trained as
draft beer salesmen; no draft beer salesman had previous-
ly been a package salesman (a point particularly impor-
My factual findings in this regard reply principally on the credible
testimony of employees who testified as how the two jobs were actually
performed, and I discredit Whittington's contrary testimony.
tant in considering Respondent's failure to return Staley
as a draft beer salesman). (8) The driver salesman is paid
by straight commission; the draft salesman receives a
salary plus commission.
For all of these reasons, and others described by credi-
ble employee testimony not necessary to detail here, I
find that the jobs of draft salesmen and package salesmen
are not substantially equivalent. Therefore, there was no
violation of the Act in Respondent's refusal to reinstate
Staley as a draft salesman after strike-replacement An-
thony departed and Clonch declined the (inadequate)
offer of the job. New Era Electric Corp., supra
E. Offers of Draft Salesman Jobs to Teague, Staley,
and Gryder in March 1980
The complaint in Cases I 1-CA-8048 and 11-CA-8713,
which issued on December 28, 1979, alleges at paragraph
10:
Respondent, on or about October 4, 1979, has fur-
ther failed and refused to properly reinstate its em-
ployees Dennis W. Clonch, or in the alternative its
employee Benjamin F. Staley, to their former or
substantially equivalent positions of employment.
Since, as discussed above, Clonch had been a draft sales-
man and Staley had been a package salesman, and since
Respondent apparently became aware of New Era Elec-
tric Corp., supra, Respondent logically concluded that the
General Counsel was then taking the position that the
jobs of draft salesman and package salesman were sub-
stantially equivalent. Just when this conclusion was
reached by Respondent is unknown, although it was ob-
viously after Huffman was made draft beer salesman
upon Clonch's declining the offer of that job. It was also
before March 18, 1980, because on that date Whittington,
in writing, offered Staley the draft salesman's job (al-
though it was then held by Kenneth Roy Huffman) 8 and
asked Staley to come to Respondent's office to discuss
the matter. On March 31, Staley and Union Representa-
tive Sherrill and Teague met with Danny Green (not
otherwise identified), Harry Padley, and Jimmy Whit-
tington at the latter's office. At that meeting Whittington
orally offered the draft salesman job to Staley uncondi-
tionally. Staley declined stating essentially that he con-
sidered the job not to be equivalent to the package sales-
man job he had before. Whittington responded that ac-
cording to the advice they had received from their attor-
ney, the NLRB had ruled that the jobs were equivalent.
During this meeting, a transcript of which was received
in advance, no offer was made to Teague.
On April 1, Whittington sent Teague a letter offering
reinstatement to Teague as a draft salesman and asking
him to meet with the Company to discuss the matter.
On April 11, Teague and Staley went to Respondent's
office where Teague served upon Whittington a letter re-
' As noted above, Huffman was carried as "temporary" draft saleaman
on Respondent's records from the time he was promoted to the job when
Clonch declined it on October 4, 1979. Whittington defined "temporary"
in terms that ordinarily are used to connote "probationary," and the term
"temporary" (at least by the time of the offer to Staley) was esaentially
meaningless.
291
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fusing reinstatement because: "I do not believe your
recent offer constitutes substantial [sic] equivalent em-
ployment." Staley, although he had already verbally re-
fused the offer extended March 31, also served Whitting-
ton with a letter which was substantially identical to that
of Teague's.
On April 14, 1980, Whittington sent a letter to former
package salesman Gryder offering him the draft salesman
job. Gryder responded with a letter stating that he de-
clined the job as draft salesman, "since I was a package
beer salesman at last employment."
Respondent contends that the jobs of package sales-
man and draft salesman are substantially equivalent and
that the General Counsel had conceded this fact by the
wording of the complaint issued on December 29, 1979,
as quoted above. From this deduction, Respondent con-
tends that it satisfied its obligations to Staley, Teague,
and Gryder by its March 1980 unconditional offers of re-
instatement to the job of draft salesmen.
While the clear implication of the wording of the com-
plaint was that the General Counsel considered the jobs
equivalent, the decision of the Board must necessarily
rest on the facts and the law, and not some preliminary
position of the General Counsel. Respondent was com-
pelled to follow the law which controls what is ultimate-
ly decided to be fact and is not excused by what it de-
duces (however logically) from the preliminary positions
of the prosecution.
Since I have found that the jobs of draft salesmen and
package salesmen are not substantially equivalent, it nec-
essarily follows that by offering the job of draft salesman
to Teague, Staley, and Gryder, Respondent did not re-
lieve itself of the statutory obligation to offer the posi-
tion of package salesman to those three former strikers
when such later became open. The Laidlaw Corporation,
supra
F. Failure To Offer Package Sales Jobs to Teague,
Staley, and Gryder in May and July 1980
On May 19, 1980, because of an increase in business,
Respondent created a fourth package route. On June 2, a
previously existing package route was left vacant when
striker-replacement Charles Bell resigned. On July 3, a
third vacancy was created when a fifth package route
was established. Because Respondent believed it had sat-
isfied its obligation to offer substantially equivalent posi-
tions to Teague, Staley, and Gryder, none of these pack-
age routes were offered to those former strikers.
The fourth package route was given to Jerry Ander-
son on May 19 who was assigned to the route without a
helper, but was paid 18 cents per case.9 Bell's route was
filled permanently on July 21 by Gary Walsh who had
been hired on August 19, 1979, as a helper-warehouse-
man, a position he held until July 21, 1980. (Just who
0 Anderson was a strike replacement who had been working as a ware-
housemen-helper and who, during the spring of 1980, worked I or 2 days
a week as a "fill-in" package sales driver. Other warehousemen-helpers
worked as temporary package salesmen during that spring and summer.
Since these temporary jobs were substantially equivalent to those of full-
time package salesmen, Respondent did not violate the Act by failing to
offer the temporary jobs to the former strikers awaiting reinstatement as
full-time package salesmen. New Era Corp., supra.
serviced that route temporarily between June 2 and July
21 is not disclosed by the record.) Walsh was given the
commission of 13 cents per case, not 18 cents, because he
was assigned a helper. The newly created fifth package
route was assigned on July 3 to Oliver Eugene Gant
who had been hired May 1, 1978, and who had been
working as a warehouseman-helper. Gant was paid 18
cents per case and was assigned to do his route without a
helper.
As well as Anderson's package route, the package
routes of striker replacements Bobby Williams and Garry
LeHardy were restructured on May 19 by Respondent's
raising their commission to 18 cents per case and remov-
ing their helpers. (Therefore, no route, except Walsh's,
had a helper at the time of the hearing because the
newly created route of Gant had no helper.)
It is undisputed that Respondent bargained with the
Union neither about the increase in commissions nor the
abolution of the job of helper on the four routes affected
by the May 19 action of Respondent.
It is clear under Laidlaw that since, as I have found
herein, Respondent did not extinguish its reinstatement
obligations to the three unreinstated package salesmen by
its offers of the draft sales routes in March 1980, it had a
duty to offer any vacancy created thereafter in the posi-
tion of package salesman. Specifically, when Respondent
created a new route on May 19, it violated the rights of
Staley under Section 8(a)(l) and (3) of the Act by assign-
ing Anderson to the route rather than Staley who was
qualified and awaiting reinstatement. See MCC Pacific
Valves; a unit of Mark Controls Corporation, 244 NLRB
931 (1979), wherein the Board discusses this issue and ap-
proved of the holding in Crossroads Chevrolet, Inc., 233
NLRB 728 (1978). By the same token Respondent violat-
ed the Act by assigning warehouseman Gant to the route
newly created on July 3 in preference to Teague; and it
again violated Section 8(a)(1) and (3) of the Act when on
July 21 it permanently assigned Walsh to Bell's route in
preference to Gryder who also was then still awaiting
reinstatement pursuant to the Union's unconditional offer
to return to work made November 21, 1977.
G. Alleged Unilateral Actions
On August 4, 1978, September 3, 1979, and in May
1980, Respondent granted wage increases to the strike
replacements and Clyde Huffman. The General Counsel
contends that these wage increases and other unilateral
actions constitute violations of Section 8(a)(5). Respond-
ent contends that the allegations regarding the August 4,
1978, wage increase is time-barred because no charge
was filed thereupon until October 29, 1979. Union Rep-
resentative Sherrill denied actual knowledge of the 1978
(and 1979) wage increases, and replacements Bell and
Foster credibly testified that they were instructed by
Whittington and Johnson to keep word of their increases
from strikers when said wage increases were granted.
Respondent rejoins that the Union participated in the ne-
gotiation of the November 22, 1978, settlement of the
charges in Cases 11-CA-7182 and 11 I-CA-7619 (pursuant
to which warehousemen Kenneth Roy Huffman and
Ricky Pierce were reinstated), and since that settlement
292
FORESTER BEVERAGE CORPORATION
called for backpay, the Union presumably had notice of
the wage increases, at least as to those given the ware-
housemen.
I need not determine the validity of Respondent's de-
fense based on the limitations period of Section 10(b) of
the Act because, after discussing this defense, the Gener-
al Counsel in his brief, p. 15, states:
The second defense Respondent maintains is that
due to an impasse in bargaining reached between
the parties in September 1977, the subsequent pay
raises of September 1978 and 1979 are not violative
because said wage increases were not different from
or greater than those offered to union when the
contended impasse was reached. This argument
does not apply to the May 1980 pay raise as it was
clearly greater in amount than any wage offer ever
made to the Union.
By the last sentence just quoted, the General Counsel, in
effect, concedes that the 1978 and 1979 pay increases
were within Respondent's final offer, a fact reflected by
payroll records in evidence. Since I have found there ex-
isted at the time of the 1978 and 1979 wage increases an
impasse, Respondent's granting them unilaterally did not
violate Section 8(a)(5) of the Act (whether a charge was
timely filed thereupon or not). Taft Broadcasting Co.
WDAFAM-FM TV, 168 NLRB 475 (1967).
Conversely, Whittington admitted that the May 1980
wage increases' 0 were not within Respondent's January
7, 1977, proposal which turned out to be its final offer.
As stated by the Supreme Court in N.L.R.B. v. Benne
Katz, d/b/a Williamsburg Steel Products, 369 U.S. 736,
745 (1962):
But even after an impasse is reached [an employer]
has no license to grant wage increases greater than
any he has ever offered the union at the bargaining
table, for such action is necessarily inconsistent with
a sincere desire to conclude an agreement with the
union.
Therefore, Respondent's unilateral granting of the
1980 wage increase was violative of Section 8(a)(5)
unless it is excused because a decertification petition had
been filed on January 19, 1979, and was still pending at
the time of the hearing herein, as Respondent further
argues. Respondent relies on Telautograph Corporation,
199 NLRB 892 (1972), in which an employer was held
not to be in violation of the Act by refusing to bargain
for the renewal of a contract covering a unit which was
the subject of a pending decertification petition. Howev-
er, there is absolutely no basis for asserting that Telauto-
graph licenses unilateral action, as opposed to a refusal to
enter plenary contract negotiations.
Accordingly, I find that the decertification petition did
not license Respondent to implement wage increases
greater than those offered to the Union on September 27,
to The If-cent-per-case commission for the four package salesmen was
5 cents more than the offer to the Union. The amount of wage increases
granted to the other employees is not disclosed by the record herein.
However, determination of the exact difference would not affect the
scope of the remedy herein.
1977, and its having done so in May 1980 violated Sec-
tion 8(a)(5) of the Act.
It is further undisputed that, in May 1980, Respondent,
without notice to or bargaining with the Union, created
new driver sales routes, altered existing routes, created
new delivery routes, and abolished the helper position
for four of its five package sales delivery routes. As Re-
spondent's Telautograph defense to the 1980 unilateral
wage increase fails, so does its defense to the 8(a)(5) alle-
gation based on these changes. Accordingly, I find and
conclude that by the institution of these changes Re-
spondent also violated Section 8(a)(5) of the Act.
Upon the basis of the above findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is 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 mean-
ing of Section 2(5) of the Act.
3. The following unit is appropriate under the Act for
the purposes of collective bargaining:
All warehousemen and distribution employees, in-
cluding drivers, driver salesmen, warehousemen and
helpers employed at Respondent's North Wilkes-
boro, North Carolina, facility, excluding office
clerical employees, and guards and supervisors as
defined in the Act.
4. At all times material herein, the Union has been the
exclusive bargaining representative of the employees in
the unit described in paragraph 3 of this section.
5. Since on or about May 15, 1980, and continuing
thereafter, Respondent has, by the following acts and
conduct, refused to bargain collectively in good faith
concerning wages, hours of employment, and other
terms and conditions of employment for the employees
in the unit described above in violation of Section 8(a)(5)
of the Act:
(a) Unilaterally and without prior notice to or consul-
tation with the Union instituting wage increases in May
1980.
(b) Altering existing employee delivery routes, creat-
ing new employee delivery routes, and removing the
helpers from package sales delivery routes on or about
May 12, 1980.
6. Respondent violated Section 8(a)(1) and (3) of the
Act when it failed on October 4, 1979, to offer reinstate-
ment to Dennis Clonch.
7. Respondent violated Section 8(a)(1) and (3) of the
Act when, beginning May 12, 1980, it refused to offer
vacancies created by new jobs and the departure of
strike replacements to qualified strikers Benjamin F.
Staley, Eddie Teague, and Robert Gryder who were
then awaiting reinstatement in preference to strike re-
placements who were then on the payroll.
8. Respondent has not, except as specifically found
above, violated the Act as alleged in the complaint.
293
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it be ordered to
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
Respondent shall be ordered to offer reinstatement to
strikers Benjamin F. Staley, Eddie Teague, and Robert
Gryder, but not Dennis Clonch, who declined a valid re-
instatement made by Respondent on February 22, 1980.
Respondent shall also be required to make whole Staley,
Teague, and Clonch for any losses of pay they may have
suffered by reason of Respondent's discrimination against
them; such payment to be made in accordance with F.
W. Woolworth Company, 90 NLRB 289 (1950), with in-
terest thereon in the manner prescribed in Florida Steel
Corporation, 231 NLRB 651 (1977); see, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962).
Upon the foregoing findings of fact and conclusions of
law and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER l
The Respondent, Forester Beverage Corporation,
North Wilkesboro, North Carolina, its officers, agents,
successors, and assigns, shall:
I. Cease and desist from:
(a) Refusing to bargain collectively with the Union as
the exclusive bargaining representative of employees in
the bargaining unit found appropriate herein.
(b) Unilaterally instituting wage increases, altering or
establishing new delivery routes, or abolishing unit posi-
tions.
(c) Refusing to offer initial job vacancies created by
new jobs or the departure of strike replacements to quali-
fied unreinstated strikers in preference to strike replace-
ments on the payroll.
(d) Unilaterally and without prior notice to or consul-
tation with the Union making changes in the wages,
hours, or other terms and conditions of employment of
employees in the bargaining unit found appropriate
herein.
II 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 prurposes.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of any of
the rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Offer to employees Eddie Teague, Benjamin F.
Staley, and Robert Gryder immediate and full reinstate-
ment to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and
privileges, and make those employees and former em-
ployee Dennis W. Clonch whole for any loss of earnings
they may have suffered by reason of the discriminatory
failure to reinstate them in the manner set forth in the
section of this Decision entitled "The Remedy."
(b) Upon request, meet and bargain in good faith with
the Union as the exclusive collective-bargaining repre-
sentative of the employees in the unit found appropriate
herein.
(c) Upon request by the Union, rescind all unilateral
actions found unlawful herein and bargain with the
Union about any subsequent changes in the wages, hours,
and terms and conditions of employment of the employ-
ees in the unit found appropriate herein.
(d) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, social security payment records, time-
cards, personnel records and reports, and all other
records necessary to analyze the amount of backpay due
under the terms of this Order.
(e) Post at its North Wilkesboro, North Carolina, facil-
ities copies of the attached notice marked "Appendix."1'
Copies of said notice, on forms provided by the Regional
Director for Region 11, after being duly signed by Re-
spondent's authorized representative, shall be posted by
Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that said notices are not altered, defaced, or covered by
any other material.
(f) Notify the Regional Director for Region 11, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
12 In the event that this 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 Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
294