LTV Aerospace Corp.

National Labor Relations Board - Board DecisionsNov 11, 1974

214 N.L.R.B. 834 (N.L.R.B. 1974)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kentron of Hawaii Ltd ., Subsidiary of LTV Aerospace Corporation and District Lodge 37, Local Lodge 1786, International Association of Machinists & Aerospace Workers, AFL-CIO. Cases 23-CA-4651 and 23-CA-4780 November 11, 1974 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On December 18, 1973, Administrative Law Judge Eugene E. Dixon issued the attached Decision in this proceeding and on May 20, 1974, he issued the at- tached Supplemental Decision in this proceeding.' Thereafter, the Respondent filed exceptions to the Decision and the Supplemental Decision and sup- porting briefs, and the General Counsel filed a brief in support of the Administrative Law Judge's Deci- sion. 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 Decisions in light of the exceptions and briefs and has decided to affirm the rulings, finding,2 and conclusions of the Administrative Law Judge only to the extent consistent herewith.3 1. In Case 23-CA-4651, we adopt the Administra- tive Law Judge's finding that the Union made an unconditional offer on behalf of the striking employ- ees to return to work on January 20, 1973, and that Respondent's failure to reinstate the 22 employees when they presented themselves for work on January 22, 1973, violated Section 8(a)(3) of the Act. 2. In Case 23-CA-4780, we adopt the Administra- tive Law Judge's findings that Respondent violated Section 8(a)(1) of the Act when Supervisor Adair i The May 20, 1974, document is entitled simply "Decision" but, for con- venience, it shall be referred to as "Supplemental Decision " 2 We hereby correct an inadvertent error in the Decision of the Adminis- trative Law Judge In the sixth paragraph of sec III, the words "April 19" are hereby changed to read "April 9 " 3 Respondent filed a motion to reopen the record to introduce evidence concerning the employment of permanent replacements for strikers before the strikers appeared at Respondent's place of business on January 22, 1973 The motion is hereby denied since the evidence sought to be introduced is irrelevant The issue before the Board is whether on January 20, 1973, the Union's representatives made an unconditional offer to return the strikers to work That issue was fully litigated and it is the issue which the Board is deciding The General Counsel had filed a motion to sever Case 23-CA-4780 to be processed to decision while Case 23-CA-4651 awaits the Supplemental De- cision of the Administrative Law Judge Since both cases are presently be- fore the Board and ready for decision, the General Counsel's motion to sever is hereby denied called employee Allen's attention to the exclusion of union members from the employee insurance plan, and violated Section 8(a)(3) and (1) when Respon- dent denied bargaining unit employees a paid holi- day (received by other employees) on Memorial Day, May 28, 1973. However, we find no violation of Sec- tion 8(a)(1) by the publication of the insurance and retirement plans which exclude union members since this conduct was neither alleged in the complaint nor fully litigated at the hearing as a violation of the Act. 3. Also in Case 23-CA-4780, we find, contrary to the Administrative Law Judge, that the Respondent did not violate Section 8(a)(1), (3), and (5) of the Act by discontinuing employee benefits after May 1, 1973, for the reasons set forth below. Under Respondent's contract with NASA, it is reimbursed only for justified costs and expenditures. In its dealings with NASA, Respondent cannot es- tablish and continue pay practices without negotia- tions with the employees' certified bargaining repre- sentative and have such costs reimbursed by NASA under its contract. Accordingly, by letter dated April 9, 1973, the Respondent informed the Union that as of May 1, 1973, it was excluding the represented em- ployees from participation in certain specified bene- fit plans for unrepresented employees because of their union membership. The letter also stated that if the Union desired "to discuss the discontinuation of these present benefits for these professional employ- ees, please contact us." The Union received this letter on April 10. The Union responded by letter dated April 19 but not postmarked until April 23 and not received by Respondent until April 25. The Union protested any unilateral changes in conditions of employment and urged the Respondent not to make any changes until a meeting could be arranged. The letter also request- ed information from the Respondent as follows: At this time the union requests the standard in- formation; wages, hours of work, insurance, pension plan, sick leave, compensation time, va- cations and any other benefits these employees enjoy at this time. Upon receipt of this informa- tion we will suggest dates of mutual agreement for negotiations. On April 26, the Respondent wired the Union not- ing the latter's dilatory response and again indicated its availability to discuss the changes prior to May 1. On April 30, the day before the changes were to be effectuated, the Union wired Respondent as follows: Due to the late date of your response to our request for information concerning employees 214 NLRB No. 116 KENTRON OF HAWAII LTD. under certification 23-RC-3903 the Union feels there is no way that we can meet prior to May 1, 1973. We reaffirm our position as to the unila- teral changes of any benefits pertaining to hours of work, group insurance, vacation, etc. By letter dated May 4, 1973, the Respondent mailed the requested information to the Union. Subsequent to May 1, 1973, the parties entered into contract negotiations. When an employer notifes a union of proposed changes in terms and conditions of employment, it is incumbent upon the union to act with due diligence in requesting bargaining.4 Here Respondent gave the Union 3 weeks' notice of its proposed change in ben- efits. Instead of responding promptly to the Respondent's invitation to bargain, the Union waited almost 2 weeks to post a reply. Even then it did not suggest immediate bargaining but only protested any changes in conditions of employment until a meeting could be arranged and requested "standard informa- tion." Immediately upon receipt of this letter, Re- spondent again offered to negotiate the proposed changes before May 1. The Union, however, declined and repeated its request for information. This infor- mation was subsequently furnished by Respondent on or about May 4. In view of the Union's lack of diligence in enforcing its representational rights and the absence of any evidence that Respondent was motivated by discriminatory reasons in discontinuing certain benefits for newly represented employees, we find that Respondent did not unlawfully refuse to bargain with the Union concerning such benefits, or that it eliminated such benefits for discriminatory reasons, in violation of Section 8(a)(5), (3), and (1) of the Act. In his partial dissent, Member Jenkins argues that the Union was not afforded a reasonable opportunity to bargain because the Respondent failed promptly to furnish information sought by the Union. In this regard we note that the Respondent gave 3 weeks' notice of the proposed change in benefits but the Union procrastinated for almost 2 weeks in request- ing "standard information" and protesting any changes until a meeting could be arranged. By wait- ing until 2 weeks after receipt of the Respondent's letter (which was l week prior to May 1, the effective date of the proposed changes) it was the Union, not the Respondent, which precluded any reasonable op- portunity to bargain prior to May 1. We note that once the Union requested the information, the Re- spondent promptly furnished it and the parties en- tered into contract negotiations. 4American Bushnes, Inc, 164 NLRB 1055 (1967) AMENDED CONCLUSION OF LAW 835 Delete the Administrative Law Judge's Conclusion of Law 5 and renumber the subsequent conclusions accordingly. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Kentron of Hawaii Ltd., Subsidiary of LTV Aero- space Corporation, Houston, Texas, shall: 1. Cease and desist from: (a) Discouraging membership in, or activities on behalf of, District Lodge 37, Local Lodge 1786, In- ternational Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, by discriminating against them in regard to their hire or tenure of employment or any term or condition of employment. (b) Threatening employees with discontinuance of benefits if they are represented by a union. (c) In any other manner interfering with, restrain- ing, or coercing employees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist District Lodge 37, Local Lodge 1786, International Association of Machinists & Aerospace Workers, AFL-CIO, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action to effectu- ate the policies of the Act: (a) Offer the employees named below immediate and full reinstatement to their former jobs, or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them in the manner provided in the section of the Administrative Law Judge's De- cision entitled "The Remedy." H. Toy D. Wilson W. Weldon H. King W. White A. Hensley R. Brandt R. Manis G. Robeson A. Lopez G. Robb J. Bailey J. Elkins G. Landry J. Robinson Martin Collins J. L. Rachel M. Stroud 836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. Lerche Alan Baumbach A. Lerche E. Limmer (b) Make whole the engineering employees repre- sented by the Union in Case 23-CA-4780 for the loss of the May 28, 1973, holiday pay in the manner pro- vided in the section of the Administrative Law Judge's Decision entitled "The Remedy." (c) 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 to analyze the amount of backpay due under the terms of this Order. (d) Post at its places of business in Houston, Har- ris County, Texas, copies of the attached notice marked "Appendix." 5 Copies of said notice, on forms provided by the Regional Director for Region 23, after being duly signed by Respondent's author- ized representative, shall be posted by it immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region 23, in writing, within 20 days from the date of this Order, what steps Respondent has taken to comply here- with. IT IS FURTHER ORDERED that the allegation that the Respondent unilaterally discontinued unit employee benefits on May 1, 1973, in violation of the Act be, and it hereby is, dismissed. MEMBER JENKINS, dissenting in part: In refusing to find the Company's unilateral dis- continuance of employee benefits violative of the Act, the majority makes much of the supposed tardi- ness of the union response to the Company's April 9 letter. According to the majority, by not responding to the Company until April 23, 2 weeks after the Company's notice of the change, the Union failed to exercise "due diligence." Moreover, the majority at- tached great significance to the absence of a union request for an immediate meeting with the Company.6 Because the Union in its April 23 letter was content to protest the proposed changes and to request cer- tain specific information concerning terms of em- 5 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 Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " 6 The Union did urge Respondent not to implement any change before a meeting could be arranged ployment and various company benefit plans, my colleagues suggest that the Union forfeited its repre- sentational rights in the matter and left the Company free to reduce unilaterally the level of benefits. I note at the outset here, unlike the typical case involving an alleged violation of Section 8(a)(5) be- cause of unilateral changes in the terms and condi- tions of employment, the Employer gave the Union advance notice of the proposed changes. However, the giving of notice is not determinative. Rather, the issue is "whether in the light of all the circumstances there existed reasonable opportunity for the Union to have bargained on the question before unilateral action was taken . . . . Notice is important only as it bears upon whether there actually was such opportu- nity." 7 It is my view that in this case, the Employer's no- tice notwithstanding, the Union was afforded no such "reasonable opportunity" to bargain. In this re- gard, I need not point out to my colleagues that it is well settled that the collective-bargaining representa- tive is entitled to information that may be relevant to its bargaining duties.8 Absent the bargaining representative's right to acquire such information, it can hardly be gainsaid that bargaining, insofar as it implies the intelligent and full discussion of the is- sues, would be meaningless. Accordingly, the Board has long held, with court approval, that an employer's refusal to furnish information is as much a violation of the duty to bargain as a flat refusal to meet and confer.' Nowhere in the majority's decision do I find a sin- gle word of explanation for the Company's failure to furnish promptly the information sought by the Union. Nowhere is it contended that the information was not relevant to the issues raised by the Company's proposed changes, and nowhere is it as- serted that the request for information was so vague or ambiguous, or the information sought so difficult to compile, as not to permit the Company to comply prior to May 1,10 the date the changes in benefits were put into effect. Rather, it appears that the Com- pany simply ignored the Union's request for infor- mation, repeated what in effect was a meaningless offer to meet and negotiate, and waited for the May 1 deadline to pass." 7 Curley Printing Company, Printing Industry of Nashville , Inc, et al, 169 NLRB 251, 257 (1968), citing N L R B v Cone Mills Corporation, 373 F 2d 595, 599 (C A 4, 1967) 9 See The Timken Roller Bearing Company, 325 F 2d 746 (C A 6, 1963), and cases cited therein 9 Curtiss-Wright Corporation, Wright Aeronautical Division , 145 NLRB 152 (1963), enfd 347 F 2d 61 (C A 3, 1965) 1° To the contrary, the Company by implication acknowledged that the information was both relevant and obtainable since the Company ultimate- ly provided the information to the Union, although not until after the changes in employee benefits were instituted on May I " Instead of making a substantive response to my dissent, the majority KENTRON OF HAWAII LTD. 837 Under these circumstances, I cannot understand how the Union had a reasonable opportunity to bar- gain about the proposed changes in employee bene- fits. On this record it is clear that the Company's announced willingness to bargain with the Union was merely an empty gesture, plainly contradicted by the Company's refusal to meet promptly the Union's reasonable request for information. In reaching the contrary result, my colleagues, in my view, ignore both the realities of the case and the legal precedent that should govern it.12 In all other respects I join in the determination made by my colleagues. merely repeats the assertion that it was the Union and not the Company that was at fault here The majority buttresses its position by claiming that the Company "promptly" responded to the Union 's request for information This claim is flatly contradicted by the record which shows that the Compa- ny, in its April 26 response to the Union , effectively denied the union re- quest that information be furnished prior to the institution of any changes by ignoring the request The record also shows that the information sought by the Union was not furnished by the Company until May 4 , 4 days after the Company instituted changes in its benefit plans Moreover , the Compa- ny never offered any explanation for its failure to furnish this information prior to the May I deadline Accordingly , I am at a loss to understand how my colleagues can characterize the Company 's conduct as "prompt" or how they can further contend that the Company afforded the Union a full and fair opportunity to bargain about the proposed changes before they were instituted 12 See, for example , The Colonial Press, Inc 204 NLRB 852 ( 1973), wherein the Board found an employer ' s unexplained delay in providing information sought by the union violative of Sec 8 (a)(5) and ( I) of the Act American Buslnes, Inc, 164 NLRB 1055 (1967 ), the only case cited by the majority in support of its position is clearly inapposite In American Bus- lines, the union merely protested the proposed changes, it neither sought information nor indicated any interest in arranging a meeting In the instant case, on the other hand , the Union specifically tied its request for informa- tion to its desire to meet with the Company once the information had been provided APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT discourage membership in, or activities on behalf of, District Lodge 37, Local Lodge 1786, International Association of Ma- chinists & Aerospace Workers, AFL-CIO, or any other labor organization , by denying em- ployees holiday pay or in any other manner dis- criminating against them in regard to their hire or tenure of employment or any term or condi- tion of employment. WE WILL NOT threaten employees with discon- tinuance of benefits if they are represented by a union. WE WILL NOT in any other manner interfere with , restrain , or coerce employees in the exer- cise of the rights to self -organization , to form labor organizations, to join or assist District Lodge 37, Local Lodge 1786, International As- socation of Machinists & Aerospace Workers, AFL-CIO , or any other labor organization, to bargain collectively through representatives of their own choosing , and to engage in other con- certed activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. WE WILL offer the employees named below immediate and full reinstatement to their former jobs or, if those jobs no longer exist , to substan- tially equivalent positions , without prejudice to their seniority or other rights and privileges, and make them whole for any loss of pay they may have suffered as a result of the discrimination against them. H. Toy W. Weldon W. White R. Brandt G. Robeson G. Robb J. Elkins J. Robinson J. L. Rachel E. Lerche A. Lerche KENTROL OF HAWAII LTD., SUBSIDIARY OF LTV AERO- SPACE CORPORATION WE WILL make whole the engineering employ- ees represented by District Lodge 37, Local Lodge 1786, International Association of Ma- chinists & Aerospace Workers, AFL-CIO, for any loss suffered by them by the loss of the May 28, 1973, holiday pay. D. Wilson H. King A. Hensley R. Manis A. Lopez J. Bailey G. Landry Martin Collins M. Stroud Alan Baumbach E. Limmer DECISION STATEMENT OF THE CASE Eugene E. Dixon , Administrative Law Judge : This con- solidated proceeding , brought under Section 10(b) of the National Labor Relations Act, as amended (61 Stat. 136), herein called the Act , was heard at Houston , Texas, on October 3 , 1973, pursuant to due notice. The complaint in Case 23-CA-4651 (based on charges filed and served January 26 and February 26 and 27 by 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD District Lodge 37, Local Lodge 1786, International Associ- ation of Machinists & Aerospace Workers, AFL-CIO, herein called the Union) was issued on April 12, 1973, by the Regional Director of Region 23 representing the Gen- eral Counsel of the National Labor Relations Board, here- in called the General Counsel and the Board. The com- plaint alleges that Kentron of Hawaii Ltd., a Subsidiary of LTV Aerospace Corporation, Respondent herein, had vio- lated Section 8(a)(1) and (3) of the Act by failure to rein- state certain strikers. The complaint in Case 23-CA-4780 (based on charges filed and served May II and June 4, 1973, by the Union) alleges that Respondent has refused to bargain with the Union as the duly certified representative of an appropriate unit of its employees by various unilater- al acts in violation of Section 8(a)(1), (3), and (5) of the Act. In its duly filed answers Respondent denied the commis- sion of any unfair labor practices. Upon the entire record in the case including my perusal of briefs filed by the General Counsel and Respondent, and based upon my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS At all times material Respondent has been a corporation duly organized and existing under the laws of the State of Texas and is a Subsidiary of LTV Aerospace Corporation, which is a Hawaii corporation and is engaged in the busi- ness of project maintenance and support services for the National Aeronautics and Space Administration at the Lyndon B. Johnson Space Center in Houston, Harris County, Texas, with its principal place of business located at NASA Road 1, Houston, Texas. During the 12 months preceding issuance of the complaints, a representative pen- od, Respondent in the course and conduct of its business operations purchased, transferred, and delivered to its Space Center operations goods and materials valued in ex- cess of $50,000 directly from points outside the State of Texas. At all times material Respondent has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION District Lodge 37, Local Lodge 1786, International As- sociation of Machinists & Aerospace Workers, AFL-CIO, at all times material has been a labor organization within the meaning of Section 2(5) of the Act. 111. THE UNFAIR LABOR PRACTICES terms were extended by agreement to January 20, 1973. On January 16, without union sanction, several unit employees went on strike honoring a picket line established by a third party union, the Operating Engineers . The sole issue here is whether Respondent, in violation of 8(a)(3), failed and re- fused on January 22 to reinstate some 22 strikers after an alleged unconditional offer on their behalf by the Union to return to work. On January 20, a Saturday, the Union and Respondent met with a Federal conciliator in an attempt to reach agreement on a contract. The Union maintains that some- time during this meeting an unconditional offer was made on behalf of the strikers to return to work. Respondent contends that no such offer was made. There is no question that the subject of reinstatement was brought up in this meeting as a result of a help-wanted newspaper advertise- ment Respondent was currently running. The Union want- ed an explanation of the advertisement. Respondent point- ed out that it was for the purpose of replacing the striking employees and indicated that four of them had already been replaced. From Respondent's own testimony it appears that Allen T. Adams, the Union's spokesman, asked Edward McKay, Respondent's chief representative, "What the status would be of the employees if they came back to work . . . that Monday." McKay replied that "He wanted all the people back to work" including George Robb, a union committee- man, and Chuck Wells, the union business representative. There is no question also that the employees all reported for work on their regular shift on the following Monday morning only to be refused reinstatement. According to Respondent's testimony, the Union was in- formed in the January 20 meeting that the Company would continue hiring over the weekend and only those who had not been replaced as a result of such hiring would be rein- stated. In its brief Respondent contends that "The Compa- ny continued to hire replacements for striking employees over the weekend and . . . had replaced those employees ... by January 22, 1973." Respondent offered no evidence in support of this con- tention. Since economic strikers are entitled to reinstate- ment if they have not been permanently replaced and since it is an employer's burden of establishing the fact of such replacement, Pillows of California, 207 NLRB 369 (1973), I find that by failing to reinstate the employees in question when they presented themselves for work on January 22 Respondent has violated and is violating Section 8(a)(3) of the Act as alleged in the complaint. Case 23-CA-4780 On March 29, 1973, the Union became the certified bar- gaining representative for a unit of about 18 of Respondent's engineering employees.' The complaint al- A. Case 23-CA-4651 Respondent and Charging Party had maintained a bar- gaining relationship for several years involving a unit of about 70 special purpose maintenance employees . The last agreement terminated November 30, 1972. The contract 1 The appropriate unit was composed of all professional employees em- ployed by Kentron of Hawaii Ltd , in its aerospace test equipment and systems engineering section (32100) at its facility located at Building IV, 1740 NASA Road 1, Houston, Texas, excluding all office clerical employ- ees, guards , watchmen and supervisors as defined in the Act and all other employees KENTRON OF HAWAII LTD. leges 8(a)(1), (3), and (5) violations by Respondent with respect to this newly certified unit primarily by unilaterally discontinuing unit employee benefits. In this connection the evidence shows the following: By letter dated April 19, Respondent informed the Union that as of May 1, 1973, it was excluding the represented employees from participat- ing in certain specified benefit plans because of their union membership. The letter also stated that if the Union de- sired "to discuss the discontinuation of these present bene- fits for these professional employees, please contact us." By letter dated April 19 (not mailed until Apri 23 and received on April 25) to the Respondent in which the Union "strongly" protested "any unilateral changes in wages, hours, and other conditions of employment that would affect these employees," the Union urged the Re- spondent not to make any such changes until a meeting could be arranged. The letter also requested information from Respondent about the wages, hours of work, and the various specified benefit plans. On April 26 Respondent wired the Union as follows: This is in response to your letter dated April 19, 1973, which you mailed on April 23, 1973, which arrived on April 25, 1973, regarding certification 23-RC-3903 we affirm our intention as written to you in our letter dated April 9, 1973, which you received on April 10, 1973, which is to implement changes effective May 1, 1973, if you desire to discuss these changes before May 1, 1973, we are available to discuss them with you. On April 30 the Union wired Respondent as follows- Due to the late date of your response to our request for information 2 concerning employees under certifi- cation 23-RC-3903 the Union feels there is no way that we can meet prior to May 1, 1973. We reaffirm our position as to the unilateral change of any benefits pertaining to hours of work, group insurance, vaca- tion, etc. On the foregoing Respondent contends that the Union did not avail itself of the opportunity to bargain and it therefore waived its bargaining rights. I disagree. While the Union may not have been as diligent as it might have been in pursuing the announced discontinuance of the employee benefits, the fact that, so far as the record shows, Respon- dent never did submit the requested and necessary infor- mation to the Union until after the unilateral changes be- came effective strips this defense of merit. C. The Other Illegal Conduct Adair's Supervisory Status According to the undenied and credited testimony of former engineering unit employee William Allen, some 3 or 2 The only evidence in the record regarding the date of such response is a letter dated May 4, 1973, referring to the Union's request for information and describing the data enclosed in accordance with that request 839 4 weeks after the election his supervisor, H. L. Adair, gave him a copy of Respondent's group insurance plan and pointed out to him the statement therein that the plan "Ex- cludes employees eligible for participation in collective- bargaining plans of the Company." At issue here is the supervisory status of Adair. The General Counsel's wit- nesses testified, without denial, that Adair assigned work, gave performance reviews upon which salary increases are based, attended supervisory meetings, and authorized time off. The only evidence offered by Respondent on the matter was that Adair had no authority to hire or fire. I find Adair to be a supervisor within the meaning of the Act. I also find, as alleged, that his calling Allen's attention to the exclusion of union members from the employees' insurance plan was a violation of Section 8(a)(1) of the Act. I also find that, although not alleged as such, the publication of the aforesaid insurance plan, as well as a similar publica- tion received in evidence involving Respondent's retire- ment plan, violated Section 8(a)(1) of the Act. The evidence is also uncontroverted (indeed admitted) that the bargaining unit employees were denied a paid holi- day (received by the other employees) on Memorial Day, May 28, 1973.3 This action also violated Section 8(a)(1) and (3) of the Act. IV. THE REMEDY Having found that Respondent has engaged in certain unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that Respondent failed and refused to re- instate employees named in Case 23-CA-4651, I shall rec- ommend that Respondent be ordered to offer them imme- diate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, and make them whole for any loss of earnings they may have suffered by payment to them of a sum of money equal to the amount they normal- ly would have earned as wages on the date of their applica- tion for reinstatement, January 22, 1973, to the date of an offer of reinstatement, less net earnings during said period, with backpay computed on a quarterly basis in the manner established by the Board in F. W. Woolworth Company, 90 NLRB 289, 291-294, including interest as held in Isis Plumbing & Heating Co., 138 NLRB 716 (1962). I shall also recommend that Respondent be ordered to make whole the employees represented by the Union in Case 23-CA-4780 for any loss they may have suffered by reason of the discontinuance of benefits to them on May 1, 1973, and for the nonpayment of wages on the holiday which occurred May 28, 1973. Further, I shall recommend that Respondent delete and remove from all printed employee benefit plans rules or restrictions that limit coverage to employees not repre- 3 Respondent had posted a notice on May 11 to all employees stating, "Monday, 28 May 1973, will be observed as a holiday for all Kentron employees on the Engineering Support Services Contract (NAS 9-13413) It will be a paid holiday except for those employees who are members of a bargaining unit represented by the I A M & A W " 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sented by a union and to cease threatening employees with discontinuance of benefits if they are represented by a union. I shall also recommend that Respondent be ordered to bargain with the Union upon request concerning the restored benefits to the bargaining unit employees. I shall also recommend that Respondent preserve and, upon request, make available to the Board payroll and all other records necessary to facilitate determination of the amount due under this recommended Order. In view of the nature of the unfair labor practices com- mitted, I am of the opinion that the commission of similar unfair labor practices may be reasonably anticipated. I shall therefore recommend that Respondent be ordered to cease and desist from infringing in any other manner upon the rights guaranteed its employees by Section 7 of the Act. 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. Kentron of Hawaii Ltd., Subsidiary of LTV Aero- space Corporation is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. District Lodge 37, Local Lodge 1786, International Association of Machinists & Aerospace Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its em- ployees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices proscribed by Section 8(a)(1) of the Act. 4. By discriminating against its employees because of their membership in District Lodge 37, Local Lodge 1786, International Association of Machinists & Aerospace Workers, AFL-CIO, thereby discouraging membership in the aforesaid labor organization Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(3) of the Act. 5. By refusing to bargain with the Union as the collec- tive-bargaining representative of an appropriate unit com- posed of all professional employees employed by Kentron of Hawaii Ltd., in its aerospace test equipment and systems engineering section (32100) at its facility located at Build- ing IV, 1740 NASA Road 1, Houston, Texas; excluding all office clerical employees, guards, watchmen and supervi- sors as defined in the Act and all other employees, Respon- dent has violated and is violating Section 8(a)(5) of the Act. 6. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] DECISION STATEMENT OF THE CASE EUGENE E. DIXON, Administrative Law Judge: On De- cember 18, 1973, I issued my Decision in the caption mat- ter finding, inter aka, that Respondent had violated Section 8(a)(3) by failing to reinstate some 22 strikers when they reported to work on January 22, 1973. These strikers were alleged in the complaint to have made an unconditional offer to return to work in a meeting between union and respondent representatives on Saturday, January 20, 1973. The evidence regarding what took place in that meeting was in conflict. The strikers all reported for work on Mon- day, January 22, and were refused reinstatement being told they had been replaced. Because Respondent offered no evidence that the strikers had been replaced when they ap- plied for reinstatement , I deemed it unnecessary to make findings and conclusions as to what transpired in the Janu- ary meeting. On April 11, 1973, the Board remanded the case to me as follows: The Board is of the opinion that it is necessary for the Administrative Law Judge to set forth the relevant tes- timony of the various witnesses who testified as to what was said at a meeting between the Respondent and the Charging Party on January 20, 1973; to re- solve the evidentiary and credibility conflicts created thereby; and to thereafter make specific findings of fact and conclusions of law based thereon. In accordance with the Board's remand I make the addi- tional FINDINGS AND CONCLUSIONS Allen T. Adams, Grand Lodge representative and chief union negotiator, testified that at the January 20 meeting, after learning that four of the strikers had already been replaced, he told company spokesman Edward McKay I " that all of the people we represent were ready to return to work and would return to work on their regular scheduled shift on Monday morning." McKay said, "Fine. We want all of your people back to work. . . including Scotty Robb and Chuck Wells," chairman of the negotiating committee and business representative of the Union, respectively. According to Adams' further testimony he asked McKay if he needed any people on Saturday or Sunday because if there was such need "they were available to come to work. All he needed to do was contact them." McKay said that to the best of his knowledge there was no such need. Ac- cording to Adams this exchange took place, he believed, about 3 p.m. as the meeting was breaking up and the par- ticipants "were in the process of leaving." Adams further testified that at an 8 p.m. Sunday union meeting (previously scheduled for the purpose of reporting on the progress of the Saturday contract negotiations) it was "reported to the people that the Company had agreed that if everybody would report back to thejob on the regu- lar shift, next morning, that everyone had a job" with the exception of the four that had been already replaced but whose names were then not known. On cross-examination Adams admitted that he had not met with the membership between January 16, the start of the strike, and the January 20 meeting with the Company. 1 When asked by the General Counsel "What occurred at this meeting?" Adams answered in part , " I made the statement to the company spokesman, Mr McKay, something to this effect," and then proceeded to describe in narrative form his version KENTRON OF HAWAII LTD. In reiterating what he said in that meeting, he testified that he was telling the Company that the strikers "were ready to come back to work." When Adams was asked for the exact words that he used in making the offer to return to work he answered, "it would be rather difficult to tell you the exact words . . . I can tell you the gist of the entire conversa- tion." He was then asked if he could relate what he said in words "substantially identical" to those he used on the 20th. His answer was, "I asked Mr. McKay how many people he'd hired, and he responded that they had hired four people. And then following that I asked him if he needed any people for Saturday and Sunday, and he an- swered, not to the best of his knowledge. I then told him, I said, well all the people are ready to come back to work. And he said, "Fine, believe it or not, I want everyone of them back.' And then he made the statement, `including Scotty Robb and Chuck Wells' . . . I said, `Good. All of the people will report for the regular jobs on the regular schedule, Monday morning.' And that's the way it was left." Union Representative Wells testified about the January 20 meeting as follows: We were talking about the fact that they had request- ed or put into the paper requests for employees, that were to replace people in our bargaining unit, while we were trying to negotiate a contract for them, and the crux and substance of the conversation was that we would come back to work; and Mr. McKay's response was that, "O.k., do it." We asked him what employees that he had replaced, and he said that he didn't know, but he knew that they had replaced four employees. And we said, "If we bring our people back to work at their respective locations on Monday morning, will they have a job?" He said, "Yes, all but four " On cross-examination Wells also testified that he could not remember "verbatim" what was said at the January 20 meeting. He could remember being offered reinstatement himself realizing that Respondent knew "full well that [he] didn't want to go back to work"-a fact that Wells con- firmed in his testimony. When asked if he had met with the employees between January 16 and 22, his answer was "I was on the gate where the employees were every morning, trying to get those employees to go to work. I urged them to go to work." George Robb, a union committeeman who attended the January 20 meeting, testified about it as follows. To the best of my recollection at the end of the meet- ing, or towards the very end of the meeting that Ed, Mr. McKay discussed the ad in the paper with . . Mr. Adams discussed with Mr. McKay the ad that was in the paper, and asked him some questions about it. And Mr. McKay made the statement that yes, they had placed the ad, that they had to man the job and that they were going to man it, and that they had al- ready replaced four people. And Mr. Adams went further on in that area and asked him what the status was now. Asked Mr. Mc- 841 Kay if they needed people during the weekend period. And Mr. McKay said, "No," that he didn't think so, but if they did they wanted us to respond-they want- ed us to go back on the job on Monday morning for sure-but Saturday and Sunday, if they needed us. And, of course, he went on to say that he wanted George Robb, and Scotty if he wanted to come back to work. But they wanted all of us back there Monday morning. And Mr. Adams said that we would be there, and Mr. McKay said, "because we want you all back." Respondent's labor relations manager and chief negotia- tor McKay testified that when Adams asked him on Janu- ary 20 what the Company's newspaper advertisement for help meant he reviewed for Adams his efforts from the start of the strike on January 16 to get the people back to work and of Adams' promise to "try to get them back to work.... " So, not having had any success the Company decided to advertise for replacements and had replaced four or five as of the 20th whom McKay claimed to have named to Adams at this time. As to what he further told Adams, McKay testified as follows: And I said, "We are currently-" this was Saturday, the 20th, "-currently hiring others down at the re- cruiting office. We will be recruiting today and tomor- row, until we get a full complement of employees. And those people whom you represent who have not been replaced I welcome to come back, Monday; but we will continue hiring until we get a full complement. This amounted to about all that was exchanged be- tween us of significance. And I'd like to say that he nor anyone else, as I recall, made any proposal to send these people back to work, or pledged or promised, or made no offer to come back to work conditionally, or unconditionally. Nothing was expressed about that that I recall. In his further testimony McKay testified that Respon- dent "very definitely had a practice" of reducing to writing any agreement regarding the reinstatement of strikers. In support of the "practice" Respondent put in evidence a copy of an undated "strike settlement agreement" made at the request of NASA official, a Dr. Kraft, on December 5 providing, inter aha, for the return to work of all employees as of December 6, 1972. The evidence shows that the agree- ment was not reced to writing and signed until some days after the event.2 McKay also testified on direct that Adams never asked in the January 20 meeting about any Saturday or Sunday work or offered to supply men for such work. Don Schmitt, labor relations specialist for Respondent as of January 20, testified that Adams asked McKay in the January 20 meeting "What the status would be of the em- ployees if they came back to work on that Monday." Ac- 2 Union Representative Wells testified that the oral agreement was not reduced to writing until some 4 or 5 days later McKay testified that it was so reduced "a day or two later" 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cording to Schmitt , McKay replied that Respondent "wanted all the people back to work ." And "explained the rules under which they would be accepted back ." Accord- ing to Schnutt the procedure was "That anyone who was not at work on the previous Friday would have to have a legitimate excuse or reason for not having been there, or their job would be replaced ." McKay also told Adams that four or five had already been replaced but "he did not say how many would be replaced on Monday ." Schmitt also corroborated McKay's testimomy that he told Adams that Respondent would continue to hire replacements over the weekend. The foregoing evidence presents what I consider to be a good example of the kind of misunderstandings that can apse in the field of labor relations negotiations. I am con- vinced that both sides here sincerely believe the truth of their versions and neither version is completely unassaila- ble from an analytic point of view . The General Counsel's witnesses qualified what they claimed to have said by des- cribing it as being the "gist" of their remarks. On the other hand McKay 's testimony that nothing was said by the union representative "conditionally or unconditionally" about the strikers returning to work simply does not make sense in the context of what Respondent 's witnesses do admit was said. In the last analysis I cannot imagine a union representa- tive of any experience who, when confronted with the im- minent replacement of striking employees whom the Union has been trying to persuade to return to work , would not promise their immediate return-whether in fact he knew that they would return or not. It may be that Adams initi- ated his remarks with a statement that the men were ready to return to work-not in my view an unconditional offer. This apparently gave rise to McKay's comment that he "wanted all the people back to work" and I do not doubt that he probably added that he would continue to hire re- placements over the weekend on the grounds that he want- ed to be sure to man the job . As I have said , in my opinion any union representative worth his salt at this point would have said as Adams testified, "Good . All of the people will report for the regular jobs on the regular schedule , Monday morning"-in my view an unconditional offer to return to work . This is what I believe happened and I so find. I also find contrary to McKay's denial that Adams did inquire about Saturday and Sunday work and offered to man any such requirements. In this connection I mention a word about Respondent's "practice" of reducing to writing any return to work agree- ments. The one example cited by Respondent of such a "practice" on its face is obviously not sufficient to establish a "practice ." Moreover , in the day and a half elapsing from the January 20 meeting to the time that the strikers pre- sented themselves for reinstatement, Respondent took ac- tion inconsistent with any agreement to return to work and thus the possibility of reducing such agreement to writing nunc pro tunc was precluded. In its remand the Board has directed me to make "con- clusions of law" based upon my additional findings of fact. In my opinion no conclusions of law in addition to those that I have already made in my original Decision are nec- essary which , in any event, I hereby incorporate by refer- ence.