Murphy Bonded Warehouse

National Labor Relations Board - Board DecisionsMar 10, 1981

254 N.L.R.B. 1309 (N.L.R.B. 1981)

& Interna- & Ladwig 10(c) ' credibilily Adm~nistrative Inc., (1950), 188 F.2d ORDER ~ 1 1 . 1 . WILL NOT & & Shreve- WILL Philips Robison McDay 1309 MURPHY BONDED WAREHOUSE Murphy Bonded Warehouse, Inc. and Truck Drivers Helpers Local 568, affiliated with tional Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of America, Inde- pendent. Case 15-CA-7399 March 10, 1981 DECISION AND ORDER To engage in activities together for the purpose of collective bargaining or other mutual aid or protection T o refrain from the exercise of any or all such activities. WE NOT unlawfully refuse to offer full reinstatement to our employees because of On August 29, 1980, Administrative Law Judge Marion C. issued the attached Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief, and counsel for the General Counsel filed a brief in support of the Ad- ministrative Law Judge's Decision. The Board has considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, find- ings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Murphy Bonded Warehouse, Inc., Shreveport, Louisiana, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order, except that the attached notice is substituted for that of the Administrative Law Judge. IT IS FURTHER ORDERED that the complaint alle- gations not specifically found herein be, and they hereby are, dismissed. Respondent has excepted to certain findings made by the Law Judge. I t is the Board's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Products. 91 NLRB 544 enfd. 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings. APPENDIX NOTICE TO EMPLOYEES POSTED BY OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government The Act gives employees the following rights: To engage in self-organization To form, join, or assist any union T o bargain collectively through repre- sentatives of their own choice 254 NLRB No. 178 their participation in a lawful economic strike. WE refuse to bargain with Truck Drivers Helpers Local 568, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen Helpers of America, Independent, as the exclusive repre- sentative of our employees in the following unit: All warehouse employees and truck drivers employed by the Employer at its port, Louisiana, facilities, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act. WE NOT refuse to sign the 1979-82 collective-bargaining agreement we reached with the Union on April 25, 1979. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights mentioned above. WE W IL L offer the following employees im- mediate and full reinstatement to their former jobs or, if their jobs no longer exist, to sub- stantially equivalent positions, without preju- dice to their seniority or other rights and privileges previously enjoyed, dismissing, if necessary, any employees hired to replace them, and make them whole for any loss of pay or other benefits they may have suffered because of our refusal to reinstate them, plus interest: Kenneth Bates Edward Alfred Brown John Randall Ozzie Cannon Freddie Dennis Carey William Sheppard Bobby Cooper Taylor John Davis Davis Washington Richard Davis Clint Williams Isiah Gandy R. G. Williams Willie Hall Jimmy Jones L. G. Hill Charles Lynch Albert Houston Sip Parrish, Sr. Curtis Johnson James Pratt Verly Johnson Melvin Porter I l l 0 1)ECISIONS t h e above-described agreement , a n d give retroac- %year In unit em~lovees LADWIG, Shreveport, 16 minatorily 8(a)(5), (3), (1) Shreveport, $50,000 2(6) 2(5) 11. Introducrion Shreveport, ' counsel testifyj A ~ r i l 17), 3C, 5A-5C, - 18 OF NATIONAL LABOR RELATIONS BOARD W E WILL for thwith sign a n d implement tive effect t o it f rom M a r c h 25, 1979. MURPHY BONDED WAREHOUSE, INC. DECISION STATEMENT OF THE CASE MARION C. Administrative Law Judge: This case was heard at Louisiana, on February 25-26, 1980. The charge was filed by the Union on August 27, 1979,' (amended on October 4 and 9), and the complaint was issued on October (amended on January 7, 1980, and at the hearing). In this case, there has been a confusion of dates on one side, and, on the other side, a disappearance of some bargaining notes. The primary issues are whether the Company, the Re- spondent, (a) reached a full and complete agreement with the Union on April 25 but unlawfully refused to re- instate striking economic strikers and to execute a writ- ten contract embodying the agreement, and (b) discri- discharged on July 24 five of the striking em- ployees, violating Section and of the Na- tional Labor Relations Act. Upon the entire record, including my observation of the demeanor of the witnesses, and after due considera- tion of the briefs filed by the General Counsel and the Company, I make the following: I. JURISDICTION The Company, a Louisiana corporation, is engaged in the warehousing and transportation of grocery products from two warehouses in Louisiana, where it annually receives gross revenues in excess of for providing motor transportation from the warehouses di- rectly to points located outside the State. The Company admits, and I find, that it is an employer engaged in com- merce within the meaning of Section and (7) of the Act, and that the Union is a labor organization within the meaning of Section of the Act. ALLEGED UNFAIR LABOR PRACTICES A. The confusion over dates arose during the investiga- tion of the case when the General Counsel's principal witness, Union Business Agent Lester Sanders, errone- ously recalled that he was present at a bargaining session on May 2, whereas in fact he was absent from that meet- ing and was referring to a meeting on April 25. T h e Union had been certified in 1970 to represent a unit of "All warehouse employees and truck drivers em- ployed by the Employer at its Louisiana facilities, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act." The Company and the Union had reached agreement on 3- All dates are in 1979 unless otherwise indicated year contracts in 1970 and 1973 without a strike, and on a contract in 1976 after a 22-day strike. the 1979 bargaining. Business Agent Lester Sanders was the spokesman for the Union at all of the bargaining sessions until the May 2 meeting. T w o bargaining . . (neither of whom was called bv either the General o r the Company to were pres- ent in the negotiations. Beginning at the short meeting on 4, immediatelv before the economic strike started. Sanders was joined in the bargaining by a new business representative, Willie Jernigan, a former professional football player who was hired on April 2 without any prior experience. In contrast to the company representa- tives, President Marshall Martin and Attorney John Cas- sibry, both of whom admittedly took notes of all of the bargaining sessions except the meetings in April, Sanders and Jernigan took few if any notes of the various meet- ings. (As recognized in the Company's brief, Sanders "obviously relied solely upon his memory to reconstruct the complex variables of this case." and Jernigan the "neophyte union representative" in his "first contacts with . . . any labor relations negotiations . . . obviously kept no notes.") The disappearance of Martin's May 2 notes is discussed later. At the hearing, the General Counsel introduced into evidence President Martin's September 7 pretrial affida- vit (G.C. Exh. and the Company introduced Busi- ness Agent Sanders' three affidavits (Resp. Exhs. 3A and 3B, dated September 7 and 13, and Resp. Exh. dated February 21, 1980, with attachment A, his sworn August 31 summary of events, and attachment B, his January 21, 1980, correction letter). The Company also introduced into evidence Business Representative Jerni- gan's three pretrial affidavits (Resp. Exhs. dated September 13, October 9, and February 24, 1980). These affidavits and attachments were introduced without any objection o r limitation on their use as evidence. The factual disputes at the hearing revolve primarily around what happened at three bargaining sessions on April 18 and 25 and May 2, after 27 employees went on strike on April 4 to obtain a cost-of-living clause. Ac- cording to the General Counsel's evidence, the Union dropped its demand for the cost-of-living clause in face- to-face bargaining with the Company on April 25, ac- cepting the company's final proposal and offering to return the strikers to work, but the Company falsely claimed that it had hired permanent strike replacements. The Company, on the other hand, contends that such a face-to-face bargaining session did not occur, that the demand for a cost-of-living clause was withdrawn on May 2 (not on May 24 as earlier claimed), and that there was no discussion of strikers returning or being replaced until the May 24 bargaining session, after it had given permanent status to strike replacements around May 15. B. The Prestrike Bargaining Following an exchange of proposals, bargaining ses- sions were held on March 16, 21, and 29 (but not also on March 2 as Sanders originally recalled). On March 30 (after the 1976-79 agreement had been extended from 1 8), 1982." Cas- 251, "I 18 11 22E, 30), 1. backpay 131 MURPHY BONDED WAREHOUSE March 24 through midnight, April 3, with retroactive pay provided a settlement was reached by that time), the Company at the Union's request presented its final offer which was rejected by the union membership on the eve- ning of April 3 because of the Company's refusal to in- clude a cost-of-living clause. After a short meeting on the morning of April 4 failed to resolve the impasse over the cost-of-living clause (the Union rejecting the Compa- ny's offer of a small additional wage increase in the second and third years in lieu of the Union's demand for a cost-of-living clause), the 27 bargaining unit employees went on strike. There is no dispute concerning the content of the Company's prestrike final offer (G.C. Exh. consisting of a three-page, company-prepared "understanding" of the positions taken in earlier bargaining and a one-page "final offer for a three year contract effective March 25, 1979 and expiring March 24, Concerning four previously unresolved issues (in articles 4, 13, 15, and 17 of the Company's proposal), Company Attorney sibry conceded at the hearing that "If the Union had ac- cepted our final offer [as the General Counsel contends the Union did on April those items would not have been in dispute." C. Final Bargaining Sessions Following the interim bargaining sessions on April 18 and 25 and May 2 (in dispute), the Company and Union next met on May 24 when Union Attorney James Hicks joined the bargaining. At this meeting the Company (feeling itself "in a stronger bargaining position") re- duced the amount of its proposed wage increases. T h e Union stated that it would agree to the lower May 24 offer (without the cost-of-living clause), provided the strikers were permitted to return to work. T h e Company refused, stating that most of the strikers had been perma- nently replaced, leaving only a few vacancies. President Martin stated in his September 7 affidavit, told Hicks that w e could not take everybody back to work, that the Company had hired 18 permanent re- placements and had only nine positions available," having "committed ourselves to 18 employees . . . that their jobs were permanent." (Emphasis supplied.) (As discussed later, there were employees made perma- nent about May 15, but there were actually 20 perma- nent employees on May 24-Terry Lundy and Ronald Elliot having been hired in the meantime, Resp. Exhs. and 12.) At the hearing Martin (corroborated by Attor- ney Cassibry whose May 24 bargaining notes, Resp. Exh. d o not reflect any number of permanent employees o r positions available being discussed at the meeting) tes- tified that his recollection was that he told the Union there were six to eight spaces available. Business Agent Sanders (testifying without notes) recalled at the hearing that the Company said they had "about five or six open- ings (misstated at p. 53 of the Company's brief as "six to seven openings" (Emphasis supplied.) Earlier he had re- called in his August 31 summary of events (see Resp. Exh. 3C) that the Company "would not give an exact figure on how many they would take back"; in his Sep- tember 7 affidavit, that Martin said "he did not have an exact figure" of how many replacements he had hired; and in his February 21, 1980, affidavit, that "Martin again refused to tell me how many replacements he had made." Sanders was not asked about the accuracy of his June 6 letter to the board of review of the Louisiana Employment Security (Resp. Exh. 4) in which he stated that at this meeting the Company "took the position that they now have more employees than are needed and would only offer to return the striking employees by placing them on a preferential hiring list and recalling them as they need new employees." Concerning this May 24 meeting, I note that the Company argues in its brief (p. 24, fn. 2) that the Company "had found they were able to operate with 18 to 20" (emphasis supplied) replacements-although the evidence disclosed that the Company had 30 strike replacements on August 23 (Resp. Exh. 17). Sanders' letter does not mention the Company's position at the April 25 and May 2 meetings, when it had fewer strike replacements. At the May 24 meeting, the Company was still propos- ing (in agreement with the Union) that the new contract be made retroactive to March 25 (the retroactive date proposed in the Company's prestrike final offer of March in order for the Company to benefit from the lower health and welfare premiums which had been increased on April (Although its prestrike final offer conditioned retroactive pay upon acceptance of the offer by April 3, the Company continued to offer retroactive pay.) Attor- ney Cassibry's May 24 bargaining notes indicate that both parties were proposing $25 in at that meet- ing (in lieu of figuring the actual additional amount earned between March 25 and April 3). At the August 2 bargaining session, the Union pro- posed that the Company settle on the basis of reinstating 14 of the strikers and laying off the others. Following the Company's refusal on August 6 to settle on this basis, the Union attempted on August 16 (when there were 28 permanent replacements) to accept the Company's last (May 24) offer and to return the strikers, but the Compa- ny refused because of the prior withdrawal of the offer. On August 23, after conducting a lawful poll of its strike replacements and one returned striker, the Company can- celed a scheduled bargaining session and filed an RM pe- tition (in Case 15-RM-353, dismissed on October 9), al- leging loss of the Union's majority status. On the same day, the Union called off the strike and made an uncon- ditional offer for the employees to return to work. Since that time, the Company has been offering former strikers employment, without their seniority, as vacancies arise. In its original charge, filed on August 27, the Union alleged that the Company unlawfully refused to bargain by refusing to execute an agreement reached on August 16 and by withdrawing recognition from the Union. It was not until October 4 that the Union filed an amend- ment alleging unlawful conduct on May 2. T h e com- plaint, issued on October 16, was amended on January 7, 1980, to allege the dates of April 25 and May 2. Dem- em check 3C, Jerni- aftidavit, 120). - DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Three Bargaining Sessions in Dispute 2. April 25 meeting 1. April 18 meeting It is undisputed that Federal Mediator Ernest Dem- check met separately with the Company and Union at the April 18 meeting, that the Company (through check) put its March 30 offer (the prestrike final offer. including the March 25 retroactive date) back on the table, and that the Union was adamant in demanding the cost-of-living clause. The dispute arises over whether it was after this April 18 meeting or after the April 25 meeting that overtook the union representa- tives at the parking garage as they were leaving and re- layed the Company's latest proposal (immediately reject- ed by the Union), modifying the March 30 offer by adding 5-cent increases after the 18th and 30th months of the 3-year agreement. Business Agent Sanders and Business Representative Jernigan both testified that this new offer in the parking garage occurred after the April 18 meeting. (I note that when Sanders prepared his August 31 summary of events in support of the original August 27 charge; see Resp. Exh. he did not recall this modification of the Com- pany's prestrike final offer. However, both he and gan recalled that the new proposal was made after the April 18 meeting when they gave their September 7 and October 9 affidavits, respective1 y.) In his September 7 pretrial Company Presi- dent Martin stated that it was at the April 25 meeting when "The Company through Demcheck modified its offer." At the hearing Martin (corroborated by Attorney Cassibry) testified that the proposal was made after the meeting as the union representatives were leaving. In its brief, page 44, the Company admitted that, after this pro- posal was made in the parking garage, the Company was including the modification in its offer to the Union at the May 2 bargaining session. Regarding the May 2 meeting, the brief states: When Demcheck returned after talking to the Com- pany and related to Jernigan that "the Company is standing firm on the offer" (Tr. this would only have meant the Company's final offer of March 30 plus the five cents in the second year and five cents in the third year. This was the offer that Demcheck had communicated to the union repre- sentatives in the parking garage on April 25, ac- cording to the testimony of Martin and Cassibry (Tr. 170, 171, 302, 303). This offer is the only offer that the Company could have been "standing firm" on at this meeting of May 2. It is clear that if the testimony given by Business Agent Sanders and Representative Jernigan is accurate (that the modification was made after the April 18 meet- ing), the final proposal on the table at the April 25 and May 2 bargaining sessions would have been the modified March 30 offer. On the other hand, if the testimony given by President Martin and Attorney Cassibry is ac- curate (that the modification was made after the April 25 meeting), the modified offer was not on the table for the Union to accept at that meeting on April 25. President Martin (corroborated by Attorney Cassibry) testified that the bargaining session on April 25 was an- other meeting like the bargaining session on April 18, when the Company and Union did not meet face to face. According to them, the only new offer made was the one communicated through Mediator Demcheck to the Union afterwards in the parking garage. There were no permanent replacements at that time. As admitted in the Company's brief, page 17, "while the Company had hired replacements to continue its operations during the strike, no individuals who had been hired were consid- ered by the Company to be permanent replacements as of this April 25 bargaining session." (Martin had previ- ously admitted, in his September 7 affidavit, that it was not until after May 2 that strike replacements had been made permanent.) The union representatives gave an entirely different account of what happened on April 25. According to both Business Agent Sanders and Repre- sentative Jernigan, the Company and the Union met face to face and the Union dropped its demand for a cost-of- living clause, accepted the Company's final proposal, and said that the strikers were ready to return to work. As recalled by Sanders (who impressed me by his demeanor on the stand as being a most conscientious witness, doing his best to give an accurate account of what happened), he first told Mediator Demcheck that the strikers "had given us the authority to withdraw the demand for the cost-of-living clause, and we was ready to settle the con- tract and go back to work." Demcheck left the room, re- turned with Martin and Cassibry, and (in Sanders' words): I advised Mr. Cassibry that we were withdraw- ing the demand for the cost of living clause, and were ready to accept the Company's final proposal. Mr. Cassibry said, "Well, okay, but we want to review what we have agreed on." Which, I thought that was all right, because it was some of the stuff like the agreement on the pension, the health and the sick leave. We had reached an agreement on it but, we hadn't set down and put all that in writing. So, I didn't think anything of it. That was all that was said about it. So, after that, why Mr. Marshall Martin spoke up and said, "Well, we have got one problem." And I said, "What is that?" He said, "Well, we have hired permanent replacements and we can't take all of the people back." And of course, that was the first that I had any knowledge that they was even talking about hiring permanent replacements, and I asked him, I said, "Mr. Martin, how many are you talking about?" He said: "Well, we can't tell you right now. I don't know." And I couldn't find out how many they was talking about or who they were talking about. So, I told him, we want all the people to go back there . . . and they refused, and we left. [Em- phasis supplied.] 1, In 2" pay A p r ~ l 15 bar- gaming 1313 MURPHY BONDED WAREHOUSE Thus, according to Sanders, Attorney Cassibry said "okay," assenting to Sanders' acceptance of the Compa- ny's final proposal and suggested that they proceed to review the agreement, but President Martin overruled his attorney, claiming that permanent replacements had been hired. The Company admits in its brief (as indicated above) that its offer to the Union, in the next bargaining session following its proposal to the Union in the parking garage, was "the Company's final offer of March 30 plus the five cents in the second year and five cents in the third year." However elsewhere in the brief the Compa- ny ignores this admission and argues that, despite Sand- ers' testimony that he told Attorney Cassibry at this April 25 bargaining session that the Union was ready to accept the Company's "final proposal." Sanders "was testifying in essence that he accepted the Company's March 30 final offer without the two extra nickels in it." The brief cites Sanders' failure to specifically include the proposed second and third year increases when giving the "main points" of the March 30 offer on cross-exami- nation, and his failure to specifically state that the final offer he attempted to accept was the modified March 30 offer. I find it clear that the Union, as well as the Com- pany, realized that the modified March 30 offer was the offer on the table. I therefore agree with one sentence in the Company's argument (at p. 35 of the brief), "It is ab- solutely incredible that Mr. Sanders would meet with the Company on April 25 and accept an offer less than the Company's last offer." There was much confusion caused during the investi- gation of this case by Business Agent Sanders' faulty rec- ollection of the date of this bargaining session. After in- correctly stating in his August 31 summary of events and in his September 7 affidavit that this April 25 meeting occurred on May 2 (a date on which his calendar showed he was scheduled to meet with the Company), Sanders became concerned that he was unable to remem- ber what had happened at the April 25 negotiations. He testified, "I knew that the last meeting that I had with the Company [before the May 24 meeting] was the date that we withdrew the demand for the cost of living." Fi- nally, in December, he obtained a copy of his airplance ticket which showed that he was out of the city when the May 2 bargaining session was held. He then knew that April 25 was the correct date of this meeting. According to Jernigan, the confusion over when the April 25 meeting was held caused him, in his October 9 affidavit, to give the wrong date of his meetings with the strikers to persuade them to agree to drop the demand for a cost-of-living clause in order to stop losing money and return to work. He stated in the affidavit that he met with the strikers on April 30 and that Sanders told Martin and Cassibry (2 days later) on May 2 that the Union was offering to drop the cost-of-living clause and accept the Company's final offer as long as the Company would return all striking employees back to work. He testified, though, that the dates were wrong: "Mr. Sand- ers was doing the negotiations, and I didn't write down any dates on my notes," and that he had met with the strikers on April 23, 2 days before the meeting with Martin and Cassibry on April 25. (In addition, Jernigan was obviously wrong in his affidavit in another respect. He agreed with Sanders that Martin responded in the bargaining session that the Company had already hired permanent replacements, but he then erroneously re- called in the October 9 affidavit that Martin also said that the Company could not take any striking employees back." I note that there is an ambiguity in Sanders' Feb- ruary 2 1980, affidavit caused by the omission of a clos- ing parenthesis. After correcting the date of this April 25 meeting and recounting a subsequent private conversa- tion between Sanders and Martin on April 26 concerning Martin's reason for not taking back the strikers (Sanders asking if it was because of an "alleged incident of [strike] violence"), Sanders stated in the affidavit, "Martin said no but the reason was because the Company had hired permanent replacements for the strikers. Then Sanders added: "Martin refused however to tell me how many permanent replacements he had made. In fact at the May 24, 1979 meeting, Martin again refused to tell me how many replacements he had made." At this point, there is about a three-quarter-inch space the line, but no clos- ing parenthesis. Sanders next made the ambiguous state- ment in the affidavit, "It was because of this refusal [at the April 25 or May 24 meeting?] that I decided to demand the restatement of all strikers because I didn't believe that the Company had made any permanent re- placements." The reference to the "incident of violence" in the affidavit was to an earlier-cited private conversa- tion between Martin and Sanders on April 20 when "Martin told me about employee David Thompson set- ting fire to a pick up truck and said that the Company would not agree to taking him back. I told Martin that if he had proof of this act to discharge Thompson under the contract and the Union would handle his discharge through the grievance committee. Martin said: "Well let's play it day by day." In its brief, p. 56, the Company contends that it determined "as of August that Thompson "would not be reinstated." It is clear that there was no dispute over Thompson on April 25 or May 2; the Company has never contended that it refused to reinstate strikers because of a dispute over him. The General Counsel does not seek his reinstatement or back- .) The Company argues in its brief that the Union's fail- ure to complain in any subsequent bargaining session about the Company's "alleged failure" to agree to its own contract offer demonstrates that "nothing occurred on 25 relating to reinstatement rights of strikers or dropping the cost of living clause." However, at no time during any of the subsequent bargaining sessions did the Company admit to the Union that it did not have any permanent replacements on April 25 or that it first told 18 strike replacements about May that they had per- manent status. (I note that, according to Sanders, he did tell Martin in a private discussion after the April 25 session, "Mr. Martin, you're putting me in a bad situation, where I have got to continue the strike on ac- count you won't put the people back to work.") LABOR Jerni- 1 "1 vThe work- Dem- "Some- 13 25, % 1314 DECISIONS O F NATIONAL RELATIONS BOARD 3. May 2 meeting time in June" the Company met with Evans and consider what happened at the May 2 bargaining ses- sion to be important in determining what actually hap- pened on April 25. According to the General Counsel's witness, this May 2 meeting was an uneventful, no-progress bargaining ses- sion. The Company stood firm, refusing to change its po- sition that some of the strikers had been permanently re- placed. Before learning that i t was being charged with unlawfully refusing to bargain on April 25 and May 2, the Company agreed that this was an uneventful meet- ing, contending that the Union did not withdraw its cost- of-living demand until the May 24 meeting. However, at the hearing, the Company shifted its position, contending in effect that this meeting was a turning point in the strike. In making this shift, President Martin contended that he did not "presently" have his May 2 bargaining notes to which he referred in his pretrial affidavit. a. General Counsel's version On May 2, when Business Agent Sanders did not return from Birmingham in time to be the Union's spokesman at the scheduled bargaining session, Jernigan (the new business representative who had been sitting in with Sanders in the negotiations) requested Business Manager Laird Evans to accompany him. Although Evans had another meeting scheduled for the same time, he agreed to go along. On the way, according to Evans, asked [Jernigan] the status of i t at the time. He said that we had withdrawn our cost of living, we wanted to put all the people back to work. That is what our pro- posal was at that time. That was what we had gone to talk about." As recalled by Jernigan, "Mr. Demcheck came in. He said, 'Willie . . . have you changed your mind?"' (evi- dently referring to Sanders' insistence on April 25 that the strikers be reinstated before agreeing to the Compa- ny's final proposal). "Yes, we still in the same position we were last time. The cost of living clause is dropped. All we want is the men to go back to work." Demcheck then conferred with the Company, returned, and said, Company is standing firm on the offer." (The Company admits in its brief, at p. 62, that Jernigan "told the Company through the mediator that the employees wanted everything the Company offered and, at p. 44, that the Company's "standing offer" on the table was "the Company's final offer of March 30 plus the five cents in the second year and five cents in the third year." Thus, the Company's reported response-to the Union's repeated position that it had dropped the demanded cost- of-living clause and wanted the strikers back at was that the Company was standing firm on its last offer and was refusing to reinstate all of the strikers.) check then said, "Willie, it doesn't seem like I can do any good for you," and Jernigan and Evans got up and left. Before Sanders realized during the investigation of this case that he had not attended the May 2 bargaining ses- sion, he and Jernigan came to the erroneous conclusion that the May 2 meeting was held sometime in June. Sanders recalled in his September 7 affidavit that gan, and "No progress was made at this meeting because the company refused to budge from its final offer of May 24, 1979." (The Company agreed with the Union at the hearing that the meeting with Jernigan and Evans oc- curred on May 2: therefore the final offer on the table could not have been the May 24 offer.) Jernigan recalled in his September affidavit that the "brief' (May 2) meeting with Federal Mediator Demcheck was in mid- June, the "third week of June," when Demcheck left the room to see what the Company would say, returned in about 10 minutes, and said, "Willie, they are staying on their same offer. I can't seem to do any good." Jernigan and Evans "got up and left." Thus, according to the General Counsel's witnesses, the decisive bargaining was done when the Union's expe- rienced negotiator (Sanders) was there on April the date Sanders finally withdrew the cost-of-living demand, which had caused a 3-week impasse, and offered to accept the Company's final proposal in order to get the strikers back to work; but President Martin claimed that permanent strike replacements had been hired and re- fused on both April 25 and May 2 to reinstate all of the strikers. b. The Company's versions 1. Shifting positions During the investigation of this case (before being charged with unlawful conduct on April 25 and May 2), President Martin agreed with the General Counsel's wit- nesses-in a lengthy pretrial affidavit, given over a 2-day period in his attorney's office-that the May 2 bargaining session was a rather "brief' and uneventful meeting. Such a routine, unimportant meeting would explain why Martin did not "have a clear recollection about it" and why Business Agent Sanders and Representative Jerni- gan attached such little importance to the meeting that they first recalled that the meeting occurred 6 weeks later. However, at the hearing, Martin shifted positions and claimed that the May 2 meeting was a "crucial" meeting. Undoubtedly both he and the union representa- tives would have had a clear recollection of it if his testi- mony were true and it had been such an important meet- ing. Martin stated on page 7 of his affidavit, given on Sep- tember 6 and 7: This was a rather brief meeting . . . . My notes are very sketchy on this meeting; I don't have a clear rec- ollection about it but do remember that nothing was accomplished. [Emphasis supplied.] In the following paragraph he indicated that the Union did not withdraw its demand for a cost-of-living clause until the next meeting on May 24, when Union Attorney Hicks joined the bargaining. Specifically, he stated, on page 8, "Mr. Hicks said that the Union was dropping its cost-of-living proposal" (emphasis supplied)-not that the Union had already dropped it several weeks earlier. Also in the same paragraph, Martin admitted that it was some- time after the May 2 meeting (between the meetings of BONl 1315 18 "I mean- impo-rtant (i.e., $40 $45 Jerni- did could 2nd." MURPHY 3ED WAREHOUSE May 2 and May 24) that he "went out to both of our locations and had general meetings with these em- ployees" (strike replacements) and "told them that we were going to make their jobs permanent and intended to keep them on as permanent employees as long as they performed satisfactorily." Martin added, made the de- cision to use permanent employees because I did not expect the strikers to return to work in the immediate future and had to operate my business in the timeu-still without recalling anything significant that happened at the May 2 meeting. By this time of the hearing, however, the Company contended that the May 2 meeting was a most bargaining session, at which the Union not only with- drew its demand for a cost-of-living clause (not 3 weeks later), but (as stated in its brief, pp. 47, 52, and 62) intro- duced a new demand which served to "torpedo the whole bargaining process," "completely disrupted the bargaining," "scuttled any change of an early settlement of the contract and the strike," and caused the Company to decide to give employees permanent status because the "erratic bargaining of the Union at the May 2 meet- ing calling for the sudden injection" of the new demand "convinced [the Company] that instead of getting closer together, the parties were getting further apart." Martin testified that "We were somewhat astounded when Sanders was not present at the meeting, one of the most crucial of the meetings." He testified, "We are hoping to have a contract by then," and told Federal Mediator Demcheck that we "agreed to put our final offer back on the table" the Company's "final offer plus five cents in the [middle of the] second and third years" as admitted in its brief, p. 44). According to Martin, Demcheck reported back that the Union was withdrawing its demand for a cost-of-living clause but sought a $40 or $45 "bonus" for all strikers and the Company's final offer, plus 5-cent raises at the beginning of the second and third years of the agreement. Martin positively testified that there was no inquiry about putting the strikers back to work. He testified that "Absolutely" not, nothing was said about retroactive pay for extending the contract to April 3, and that no, the requested bonus was not in lieu of retroactive pay: "We didn't feel it was a substitution, it was a bonus for set- tling." Attorney Cassibry gave corroborative testimony (that the Union dropped its demand for a cost-of-living clause and sought 5-cent raises at the beginning of the second and third years, without making an "offer for in- dividuals to return to work"), but he contradicted Mar- tin's testimony that the Union sought a "bonus" and said nothing about retroactive pay. Cassibry claimed that Demcheck indicated that the Union offered to accept a or $45 "lump sum"-obviously a reference to retro- active pay. Thus the Company contends that on May 2, in the ab- sence of the Union's regular negotiator, (a) the Union made a major reversal of position, dropping the demand- ed cost-of-living clause which had obstructed an agree- ment since April 3, (b) despite the fact that the strikers had been out of work for over 4 weeks, the Company's longest strike, the Union did not even raise the subject of the strikers returning to work, and (c) the Union de- manded a $40 or settlement "bonus" without any mention of retroactive pay (or a "lump sum" in lieu of figuring retroactive pay), plus two expedited 5-cent raises, torpedoing the "whole bargaining processw-all without making enough impression on President Martin for him to recollect several months later what had hap- pened at the meeting. This testimony was news to both Representative gan and Business Manager Evans; neither had any knowledge about a $40 or $45 proposal or any other new proposal on May 2. Evans positively testified on rebuttal that no, the Union did not make a $40 or $45 lump-sum proposal, and that the Union had already withdrawn the cost-of-living demand and offered "our people back to work." Jernigan testified, "Today is my first knowledge" of these claims. (Both Evans and Jernigan impressed me as being honest, forthright witnesses.) 2. Disappearance of bargaining notes Undoubtedly President Martin's May 2 bargaining notes, mentioned in his September 7 affidavit, would have been helpful at the hearing in determining whether the May 2 bargaining was brief and uneventful (as con- tended by Representative Jernigan and Business Manager Evans, as well as by Martin himself when giving his pre- trial affidavit) o r whether, in the absence of Business Agent Sanders (the previous union spokesman), the Union made a new "bonus" demand, torpedoing the "whole bargaining process." However, Martin's notes of that meeting were missing. Martin gave conflicting testimony about the missing notes. When first asked on cross-examination about his May 2 bargaining notes, he testified that his other notes "are the notes that I presently have, and to the best of my knowledge and belief, all the notes that I took." He denied having any notes of the May 2 session. When asked about his affidavit, he first claimed, "I feel certain the words that the notes are very sketchy," meant that claimed, "I [feel] that my notes on the entire bargaining after the strike were sketchy," but later admitted that he stated in the affidavit that the notes were "on this meet- ing." He claimed, "I found none . . . . I not find any . . . . Apparently I said in the affidavit my notes were sketchy on that meeting, and they were so sketchy as to not be any, I presume . . . . If there were ever any such notes, I don't know where they are, no, sir." (Emphasis supplied.) He next gave this explanation for not having taken notes at the meeting: On May 2, the offer came to us from Mr. Laird [Evans] and Mr. Jernigan, and was such that we could see immediately, no bargaining, no contract come from such an offer, and there was noth- ing to make notes of: [Emphasis supplied.] Martin thereafter admitted, "I said in my thing [affidavit] that I did" take notes of the meeting; however, he blamed the Board attorney: "But, remember, you orches- trated that, I did sign it but, I don't know whether I ever had any notes of May (From his demeanor on the stand, he did not impress me as being a candid witness. I 131h LABOR IjOAKD 22D): 56 5$" "U "18 "I8 1 10 12 aftida- vit, hecause backpay "18 17, 18 14 Holts- Wil- I 10; 11) "18 "18 DECISIONS OF NATIONAL RELATIONS discredit the denials that he took notes of the May 2 meeting.) 3. Other notes "found" Instead of producing his own May 2 bargaining notes (mentioned in his September 7 affidavit and discussed above), President Martin produced some purported bar- gaining notes which state, under listed appearances on that date (Resp. Exh. "No COL-Lump Sum-$40 or $45 Same offer [plus] on one side of the page and offer per Demcheck" on the other, and new hires" at the bottom. The Company argues in its brief that these notes "conclusively establish that the Union's offer injected the lump sum of $40 or $45 as a new demand" at the May 2 meeting. However, having repeat- edly emphasized in the brief (at least 10 times, pp. 18, 19, 25, 29, 33, 37, 38, 51, and 53) that there was absolutely no discussion of replacements of strikers until May 24, the Company ignores and fails to offer any explanation for the notation, new hires." (The General Counsel urges his version of the evidence-that the Union on May 2 repeated its April 25 position, that it "was with- drawing its demand for a cost of living clause and was ready to accept Respondent's final offer and return to workm-ignoring the purported May 2 bargaining notes.) Upon weighing all of the evidence, I find some per- plexing questions about the purported May 2 notes, de- spite their authentication by Cassibry. Martin claims that this page of Cassibry's bargaining notes was "found" after Martin gave his September 7 af- fidavit. The pretrial affidavit (G.C. Exh. 17) is a compre- hensive 13-page, legal-size document (plus handwritten page), given in Cassibry's office over a period of 2 days. Martin testified that perhaps 15 hours were spent, or "Certainly it must have been" or hours, giving the document. Cassibry was not only present the entire time, but he had his bargaining notes before him. As conceded by Martin, "occasionally [Cassibry] would add some- thing from his notes." Both Martin and Cassibry read the affidavit before Martin signed it. Martin, without giving the date, testified that "After we got our copy of the [affidavit], and after we had a chance to read it further, and Mr. Cassibry had a chance to check it against his records, he found that he had notes on M a y 2nd meeting and called me and talked to me about it." (Emphasis supplied.) (Cassibry testified that he did not produce the May 2 notes "in preparation for the affidavit" because the May 2 meeting "was insignificant at best, when the affidavit was given.") If this testimony is accurate, it would mean that Cassibry sat in his office where the affidavit was being given, that he had his bar- gaining notes before him (occasionally adding something from them), but listened to his client state in the "My notes are very sketchy" on this May 2 meeting: "I don't have a clear recollection about itw-without Cassibry checking (or producing) his own May 2 notes or mentioning what they revealed (that the Union inject- ed a $40 or $45 demand which, according to the Compa- ny's brief, served to "torpedo the whole bargaining proc- ess"). I consider it most unlikely that if this page of the bargaining notes had been in existence at the time, Cas- sibry would have failed to check to see if he had it (or would have failed to produce i t of the "insignifi- cance" of the May 2 meeting at that time, before the Company was accused of violations on April 25 and May 2). Other evidence indicates that this page of the bargain- ing notes was not written on May 2. As found above, if the Union had injected a demand for $40 or $45 in in the bargaining on May 2, torpedoing "the whole bargaining process," "completely disrupting the bargaining," and scuttling "any chance of an early settlement of the contract and the strike," Martin would undoubtedly have had a better recollection of such a "crucial" meeting at the time he gave the lengthy affidavit, whether or not May 2 was a date of alleged violations. Moreover, other contents of the pur- ported bargaining notes present a most difficult problem. At the bottom of the purported May 2 bargaining notes is the notation, new hires." This is the exact number of strike replacements the Company had on the payroll "around the 15th of the month of May," as Presi- dent Martin stated in his September 7 affidavit (G.C. Exh. p. 8). It was then that President Martin met in groups at both warehouses with a list of of his em- ployees (excluding students and others hired specifically as temporary employees, as indicated at the time of hire on the company records) and told them "that effective at that time, we would not allow those on the picket line to replace them at their jobs, if we had control." The prob- lem is that on May 2, when this page of the bargaining notes was purportedly written, only of these "new hires" (Perry Allums, Walter Amy, James Bloomer, Alonzo Cooks, Gary Evens, Jerald Haley, John claw, Daniel Mann, John Moore, Lester Palmer, David Russell, Gary Schelling, David Thomas, and Mark banks) were employed, as shown by the Company's own list of "individuals" hired after the strike began (Resp. Exh. I) and its list of permanent strike replacements as of May 24 (Resp. Exh. 12). The remaining four "new hires" (John Walton, hired on May 8; Wallace Hunter and Willie Thomas, hired on May and Cliff Chenault, hired on May could not have been on the payroll at the time of the May 2 meeting. Nor could William John- son who was hired before May 2 (on April 13) but who was terminated before the May 2 meeting (on April 19). Neither would the "new hires" include the "clearly tem- porary employees" (as described at p. 59 of the Compa- ny's brief), 14 of whom had been employed since the strike began and 7 (David Arnold, Brian Bond, Edgar Davis, Herman Lewis, Robert Martin, Leroy Russell, and Charles Whitney) were still employed on May 2, making a total of 21 "individuals" working on that date. Thus, this evidence indicates that this page of the bar- gaining notes would not have been written at the time of the May 2 meeting, when only 14 of the new hires" (made permanent about May 15) were then on the pay- roll. Of course, the notation of new hires" on the purported May 2 notes tends to give some support to the General Counsel's evidence that purported permanent re- placements were discussed at the May 2 meeting when Jernigan substituted for Sanders. At least, Cassibry had strike replacements in mind when he was writing that "18" uffer tile 15, cost- fn. 15"-i.e., ~ e n e r a l 25), 18; offer backpay 1317 MURPHY BONDED WAREHOUSE notation in bargaining notes for May 2. However, it is not very likely that he would have been writing down the number when only 14 new hires were em- ployed. (The evidence does not disclose when this page would have been wiitten. If it were written and "found" after the 18 permanent replacements were mentioned in Martin's September 7 affidavit and shortly after the Oc- tober 4 amendment to the charge, alleging violations of May 2, it evidently was written without consideration of the Company's defense several months later at the hear- ing: that no mention of strike replacements were ever made until the May 24 bargaining session.) In view of these questions about when the May 2 notes were actually written, I disagree with the conten- tion in the Company's brief that "The testimony and cor- roborative notes of John Cassibry demonstrate conclu- sively" that the "strained accounts" given by the Gener- al Counsel's witnesses of the May 2 meeting "are abso- lutely erroneous and are an ill-conceived effort to recon- struct the bargaining in accordance with whatever facts their unaided memories could reconstruct o r contrive." Although it is obvious that the General Counsel's wit- nesses, as well as the Company's witnesses, could not recall all details of the various bargaining sessions, Busi- ness Agent Sanders and Representative Jernigan both im- pressed me as honest witnesses and I d o not believe they fabricated the testimony that they had a face-to-face meeting with the Company on April 25, when Sanders dropped the cost-of-living demand and tendered back the striking employees. E. Concluding Findings After considering all the evidences and circumstances, I find that on April 25, about 3 weeks after the beginning of the economic strike caused by the impasse over the Union's insistence upon a cost-of-living clause in the agreement, Business Agent Sanders notified the Compa- ny in face-to-face bargaining that the Union was with- drawing its demand for the cost-of-living clause and was ready to accept the Company's final proposal (referring to the Company's prestrike final of March 30, as modified after the April 18 bargaining session), and ready for the strikers to return to work. At that point, Company Attorney Cassibry indicated acceptance of the Union's settlement offer by stating, "okay," but that they wanted to review what had been agreed on. However Company President Martin immediately overruled the at- torney and rejected the settlement offer by claiming that "we have hired permanent replacements" and by stating that the Company could not therefore take back all of the strikers, whereas, in fact, none of the new hires was made permanent until about 2 weeks later. In the next bargaining session on May 2, in the absence of Sanders, Representative Jernigan reaffirmed the Union's settle- ment offer but the Company continued to refuse to rein- state all of the strikers, none of whom had been perma- nently replaced. In subsequent bargaining, after Com, any gave per- manent status to 18 employees about May the Union agreed to accept a reduced wage package, but there re- mained an impasse over reinstatement of the strikers. Fi- nally, on August 23, the Union made an unconditional offer of strikers to return to work (without a contract) and the strike ended. The Company never revealed to the Union in any of the bargaining sessions that it had no permanent strike replacements at the time of the April 25 and May 2 meetings, and the Union's August 27 original charge did not allege an unlawful refusal to bargain on either date. Before such an accusation was made, President Martin gave a lengthy pretrial affidavit on September 7, admit- ting that there were no permanent replacements until after May 2, but claiming that it was at the May 24 meet- ing when the Union dropped its demand for a cost-of- living clause. At the hearing, after being accused of unlawful refus- als to bargain and to reinstate strikers on April 25 and May 2, the Company fabricated a defense that the of-living clause was withdrawn by the Union on May 2 but that the Union injected new demands and still did not mention the return of strikers until after employees were made permanent about May 15. (In support of Mar- tin's and Cassibry's credibility, the Company's brief states, p. 51 7: "It would have been to the advantage of the Company to move the date for permanence of re- placements as close to the strike as possible; the Compa- ny witnesses have been honest about these events and the fact that the replacements were not permanent until May until after May 2, as unequivocally admitted by Martin before the charge was amended.) Contrary to the Counsel's contention that an agreement was reached on April 25 and that the Compa- ny unlawfully refused to reinstate the striking employees upon the unconditional offers on April 25 and May 2 to return to work and to execute a contract embodying the agreement, the Company contends that there was no agreement reached, as well as no offer for the strikers to return to work on either date. In addition to denying that there was any face-to-face bargaining o r any settlement offer made by the Union on April 25 o r May 2, the Company now contends that there was no "meeting of the minds" on the terms of an agreement even under the General Counsel's evidence. It contends (1) that Sanders had not specifically accepted the Company's proposal on four disputed issues at the time of the strike, although, as found above, Attorney Cassibry conceded at the hearing that, if the Union had accepted the Company's final offer (as it did on April "those items would not have been in dispute"; (2) that Sanders' testimony (that the Union was "ready to accept the Company's final proposal") was to "accept the Company's final pre-strike offer," without the extra nickel in the second and third years as offered on April 18-contrary to the above findings that both the Compa- ny and the Union realized at the time that the Compa- ny's final proposal on the table was the prestrike March 30 offer as modified on April and (3) that the Union was mistaken in believing that retroactive pay was due after the April 3 deadline stated in the March 30 offer. It is clear, though, that the Company included the March 25 retroactive provision in its modified March 30 (It was necessary for the new contract to be made retro- active with in order for the Company to get the 1318 1.) 3- 1982." N.L.R.B. Fleetwood Inc., backpay, "it 25." Carey, Bobby C o o ~ e r . and^, ~ i l l i e all; L: Sr., Robison, McDay 8(a)(3) 8(a)(5) discharged backpay 8(a)(l) dixriminatorily 8(a)(3) 2(6) union, 8(a)(5) 8(a)(5), (3), F. W. Wool- (1950), Isis & re- DECISIONS OF NATIONAL LABOR RELATIONS BOARD benefit of the lower health and welfare premiums which had been increased effective April There never was any dispute over whether retroactive pay was included in the Company's final proposal. Both parties, agreeing that it was, expressed willingness at the May 24 bargain- ing session to substitute a lump-sum payment of $25 (as indicated in Cassibry's May 24 bargaining notes), in lieu of the Company figuring the actual amount of additional pay which had accrued from March 25 to April 3. Therefore, contrary to the Company's contentions, there was a meeting of the minds on the terms of a new, year agreement, "effective March 25, 1979 and expiring March 24, Thus when Business Agent Sanders proposed to settle the strike on the basis of the strikers returning to work and the Union withdrawing the demand for a cost-of- living clause and accepting the Company's final proposal, there was no issue separating the parties except President Martin's false claim that he had hired some permanent replacements. The terms of an agreement were agreed upon, all of the jobs were still available, and there were no "legitimate and substantial business justifications" for refusing to grant the demand that the economic strikers be permitted to return to work. v. Trailers Co., 389 U.S. 375 (1967). (It is undisputed that Sanders had already agreed that striker Thompson, for whom the General Counsel seeks no reinstatement o r could be discharged for strike misconduct.) The Company contends in its brief (pp. 50-51) that the Union's offer for the striking employees to return to work can be found to be "unconditional" only if is also found that a contract had in fact been agreed upon April 25 by the parties and the Company unlawfully re- fused to execute an agreed upon contract on April In agreement with the General Counsel, I find that this is what happened. Accordingly, I find that by refusing on April 25, and again on May 2, to reinstate Kenneth Bates, Alfred Brown, Ozzie Cannon, Dennis John Davis, Richard Davis, Isiah G. Hill, Albert Houston, Curtis Johnson, Verly Johnson, Jimmy Jones, Charles Lynch, Sip Parrish, James Pratt, Melvin Porter, Edward Phillips, John Randall, Freddie William Sheppard, Taylor, David Washington, Clint Williams, and R. G. Williams upon their unconditional application to their available jobs, the Company discriminatorily refused to reinstate them to their former positions of employment because of their participation in a lawful strike, thereby discourag- ing membership in and activity on behalf of the Union, in violation of Section and (1) of the Act. I also find that by falsely claiming on April 25 and May 2 that some of these strikers had been permanently replaced, as the sole reason for not accepting the Union's settlement offer to return the strikers and sign the Company's own contract proposal, the Company unlawfully failed and re- fused to execute a written contract embodying the full and complete agreement reached with the Union, there- by violating Section and (1) of the Act. I further find that the Company's unlawful conduct on April 25 prolonged the economic strike and converted it into an unfair labor practice strike. There remains the allegation in the complaint that the Company discriminatorily strikers Bates, Brown, Phillips, Randall, and R. G. Williams when, as Representative Jernigan credibly testified, President Martin told Jernigan on July 24, "I am not going to take" these people back because they were "problem people" and he "didn't want to take them back and go through and suffer a strike every three years." (Although Martin also mentioned "David Thompson . . . the guy that burned up the truck," he admitted on the stand that Jernigan told him "it could be worked out where Mr. Thompson would not have to come back." The General Counsel deleted Thompson's name from the complaint at the hearing and does not seek reinstatement or for him.) However, in view of the fact that all five of these strikers were discriminatorily denied reinstatement on April 25 and are entitled to reinstatement and back- pay since that date, I do not find it necessary to find whether or not these statements to Jernigan constituted an unlawful discharge of them. (The statements are not alleged to be a separate violation.) 1. By refusing to reinstate 26 striking employees to available jobs upon their unconditional ap- plication of April 25 and May 2, 1979, for their reinstate- ment, because of their participation in a lawful economic strike, the Company engaged in unfair labor practices af- fecting commerce within the meaning of Section and (1) and Section and (7) of the Act. 2. By failing and refusing on April 25 and May 2 to execute a written contract embodying the full and com- plete agreement reached with the the Company violated Section and (1) of the Act. 3. The economic strike which began on April 4, 1979, was prolonged and converted into an unfair labor prac- tice strike on April 25, 1979, by the Company's and (1) violations. Having found that the Respondent has engaged in cer- tain unfair labor practices, I find it necessary to order it to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the policies of the Act. The Respondent having dixriminatorily refused to re- instate 26 striking employees to available jobs upon their unconditional application of April 25, 1979, for reinstate- ment, I find it necessary to order it to offer them imme- diate and full reinstatement to their former jobs or, if those jobs no longer exist, to substantially equivalent po- sitions, without prejudice to their seniority or other rights and privileges, dismissing, if necessary, any per- sons hired as replacements, and compensate them for lost pay and other benefits, computed on a quarterly basis from that date to date of proper offer of reinstatement, less net interim earnings, in accordance with worth Company, 90 NLRB 289 plus interest as computed in Florida Steel Corporation, 231 NLRB 651 (1977). See, generally, Plumbing Heating Co., 138 NLRB 716 (1962). Inasmuch as the Respondent has un- lawfully denied reinstatement to 26 employees and Hickrnott Inc., IO(c) & 2. suf- Sec. OF Sec. lindings, objections Alf r edBrown Cha r l e sLynch Ozzie Isiah ~arnes M c D a y backpay "Appendi~ ."~ IS, IT IS that his IS Relations Un~ted Labor 1319 MURPHY BONDED WAREHOUSE fused to sign a negotiated agreement, thus engaging in such egregious misconduct as to demonstrate a general disregard for the employees' fundamental rights, I find i t necessary to issue a broad order, requiring the Respond- ent to cease and desist from infringing in any other manner upon rights guaranteed employees by Section 7 of the Act. Foods, 241 NLRB 1357 (1979). Upon the foregoing findings of fact and conclusions of law, upon the entire record, and pursuant to Section of the Act, I hereby issue the following recom- mended: The Respondent, Murphy Bonded Warehouse, Inc., Shreveport, Louisiana, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Unlawfully refusing to offer full reinstatement to employees because of their participation in a lawful eco- nomic strike. (b) Unlawfully refusing to bargain with Truck Drivers Helpers Local 568, affiliated with International Broth- erhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Independent, as the exclusive repre- sentative of its employees in the following appropriate unit: All warehouse employees and truck drivers em- ployed by the Employer at its Shreveport, Louisi- ana facilities, excluding all office clerical employees, guards, watchmen, and supervisors as defined in the Act. (c) Refusing to sign the 1979-82 collective-bargaining agreement reached with the Union on April 25, 1979. (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed them by Section 7 of the Act. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Offer the following employees immediate and full reinstatement t o their former jobs or, if their job no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights o r privi- leges previously enjoyed, dismissing, if necessary, any employees hired as replacements, and make them whole for any loss of pay o r other benefits they may have In the event no exceptions are filed as provided by 102.46 of the Rules and Regulations the National Labor Relations Board, the find- ings. conclusions. and recommended Order herein shall, as provided in 102.48 of the Rules and Regulations, be adopted by the Board and become its conclusions, and Order. and all thereto shall be deemed waived For all purposes. fered by reason of the discrimination against them in the manner set forth in the section of this Decision entitled "The Remedy": Kenneth Bates J immy Jones Cannon Sip Parrish, Sr. Dennis Carey Pratt Bobby Cooper Melvin Porter John Davis Edward Phillips Richard Davis John Randall Gandy Freddie Robinson Willie Hall William Sheppard L. G . Hill Taylor Albert Houston Davis Washington Curt is Johnson Clint Williams Veryly Johnson R. G. Williams (b) Forthwith sign and implement the above-described agreement and give retroactive effect to it from March 25, 1979. (c) 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 re- cords necessary to analyze the amount of due under the terms of this Order. (d) Post at its warehouses in Shreveport, Louisiana, copies of the attached notice marked Copies of said notice, on forms provided by the Regional Director for Region 15, after being duly signed by the Respondent's authorized representative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereaf- ter, in conspicuous places, including all places where no- tices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for Region in writing, within 20 days from the date of this Order, what steps the Respondent has taken to comply herewith. ALSO ORDERED that the complaint be dismissed insofar as it alleges violations of the Act not specifically found. In the event Order enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Board" shall read "Posted Pursu- ant to a Judgment of the States Court of Appeals Enforcing an Order of the National Relations Board."