Burner Systems International, Inc.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 954 (N.L.R.B. 1984)

954 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Burner Systems International, Inc. and Allied Indus-
trial Workers of America, AFL-CIO, , Local No.
613. Case 10-CA-18558
14 December 1984
DECISION AND ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 8 September 1983 Administrative Law Judge
Robert A. Gntta issued the attached decision. The
General Counsel and the Charging Party filed ex-
ceptions and supporting briefs, the Respondent
filed cross-exceptions and a supporting brief, and
all parties filed answering briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended
Order. 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
The undisputed evidence reveals that 53 employees—new hires plus
those returning from layoff or abandoning the strike—worked during the
stnke, and 54 employees—stnkers plus those on layoff—refrained from
working during the strike Thus, under any view of the law, we agree
with the judge that the Respondent's withdrawal of recognition from the
Union on 24 August 1982 violated Sec 8(a)(5) and (1) of the Act
Contrary to our dissenting colleague, there is no evidence to show that
the employees' decision to stnke was motivated by anything other than a
dissatisfaction with the terms of the Respondent's contract proposal
At the membership meeting of 2 August 1982 during which the strike
vote was taken, there was only passing reference to the fact that the Re-
spondent was claiming financial inability to pay, but refusing to permit
the Union to examine its books and records The discussion at this meet-
ing centered around the Respondent's final contract proposal and, in par-
ticular, the Respondent's wage offer, which was for no wage increase the
first year of the contract and for increases of 25 cents and 30 cents an
hour in the second and third years, respectively Union representative
Smith explained the Respondent's proposal to those at the meeting and
suggested that no action be taken for 20 days in the hope that "things"
could be worked out between the Respondent and the Union However,
those in attendance at the meeting voted to reject the Respondent's final
offer and to strike immediately The strike commenced the next day with
signs reading "Local 613, AIW, AFL-CIO, on strike for fair wages"
As indicated, the Respondent's refusal to make its financial records
available to the Union was given only the briefest mention at the meet-
ing, and it prompted no questions or discussion When the time came to
vote on whether to go on strike, the question was framed in terms of
whether to accept or reject the Respondent's last contract proposal, and
nothing else Thus, It seems clear that those in attendance at the meeting
were voting on the Respondent's economic proposals, and this conclusion
is reinforced by the language which appeared on their picket signs the
next day protesting the Respondent's failure to pay "fair wages"
Accordingly, we adopt the judge's finding that the strike was econom-
ic from its inception and that the Respondent's refusal to permit the
Union to examine its financial records was not a direct or contributing
cause of the strike
We shall revise the notice to conform to the judge's recommended
Order
judge and orders that the Respondent, Burner Sys-
tems International, Inc., Rossville, Georgia, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order, except that the at-
tached notice is substituted for that of the adminis-
trative law judge.
MEMBER ZIMMERMAN, concurring and dissenting.
I agree with the judge and my colleagues that
the Respondent violated Section 8(a)(5) by refusing
to allow the Union to see the Respondent's finan-
cial records and by withdrawing recognition from
the Union, and violated Section 8(a)(3) by refusing
to reinstate six striking employees. However, con-
trary to the judge and my colleagues, I find that
the-strike which commenced on 3 August 1982 was
an unfair labor practice strike.
It is undisputed that on 20 July or 30 July 1982
the Union asked to see the Respondent's books fol-
lowing the Respondent's negotiating proposal of no
wage increases during the first year of the new
contract, and the Respondent refused. The judge
found, and my colleagues and I agree, that this re-
fusal constituted an unfair labor practice.
It is also undisputed that on 2 August 1982 the
Union held a membership meeting at which Union
President Brogdon read to the membership the Re-
spondent's proposal and informed them of the Re-
spondent's alleged financial inability to pay a wage
increase during the first year of the contract. Brog-
don also stated that the Respondent had refused
the Union's request to see the Respondent's finan-
cial records. The membership then voted to reject
the Respondent's proposal and to strike the next
day.
Under these circumstances, I find that the 3
August strike was initiated at least in part in re-
sponse to the Respondent's unlawful refusal to
allow the Union to examine its financial records.
Having claimed financial inability to increase
wages while at the same time refusing to substanti-
ate the claim, the Respondent unlawfully left the
employees the alternatives of accepting the Re-
spondent's contract offer without any justification
or to reject the offer and to strike. In this posture,
it is apparent that the Respondent's unlawful refus-
al to give the Union the information necessary to
evaluate its offer played a part in the employees'
decision to reject the offer and to strike. As the
employees were notified of the Respondent's unfair
labor practice immediately prior to their vote to
strike, my colleagues' position that the strike bore
no relationship to the unfair labor practice is unten-
able. See C & E Stores, Inc., 221 NLRB 1321
(1976); I. W. Corp., 239 NLRB 478 (1978). Accord-
ingly, I find the strike to be an unfair labor practice
273 NLRB No. 123
BURNER SYSTEMS INTERNATIONAL 955
-strike from its inception and dissent from my col-
leagues' dismissal of that complaint allegatitm.1
. • • .
In light of this finding and the judge's finding, with , which my col-
leagues and I agree, that the Respondent 'refused to bargain with the
Union by unlawfully withdrawing recognition from the Union, I find it
unnecessary to pass on whether the Respondent refused to bargain with
the Union 2 August 1982
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
. An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT refuse to bargain collectively with
the Union by refusing its request to see our finan-
cial records and by withdrawing . our recognition
from the Union.,
WE WILL NOT refuse to reinstate striking em-
ployees following their unconditional application to
return to work.
,WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
- WE WILL, on request, recognize and bargain col-
lectively in good faith with the Allied Industrial
Workers of America, AFL-CIO, Local No. '613,
and will disclose to them our financial records to
further this bargaining obligation.
WE WILL offer to reinstate striking employees
Margaret Brogdon, Henry Percy; Wanda Creek-
more, Edna Watt, Lamar Scott, and Renee Wyatt
to their prestrike positions and will make each
whole for any loss of earnings suffered as a result
of our unlawful discrimination against them, plus
interest.
WE WILL remove from our files any references
to the failure to reinstate, and the reasons therefor,
for each of the above-named employees and notify
-each in writing that this has been done and that
evidence of the failure to reinstate or the reasons
therefor will not be used as a basis for future per-
sonnel actions against them.
BURNER SYSTEMS INTERNATIONAL,
INC.
DECISION
STATEMENT OF THE CASE
ROBERT A. GRITTA, .Administrative Law Judge. This
case was tried before me on February 22 and 23, 1983, in
Chattanooga, Tennessee, . based on a • charge filed by
Allied Industrial Workers of America, AFL-CIO, Local
No. 613 (the. Union) on September 22, 1982, and a com-
plaint issued by the Regional Director for Region 10 of
the National Labor Relations Board on November 2,
'1982 The complaint alleged that Burner Systems Inter-
national, Inc. (Respondent) violated Section 8(a)(1), (3),
and (5) of the Act by refusing to cooperate with the
Union during negotiations culminating in withdrawal of
recognition and refusal to bargain further. The General
Counsel also alleged that Respondent refused to reinstate
employees who engaged in an interim strike and perma-
nently replaced its employees without regard for the
unfair labor practice nature of the strike. Respond-
ent's timely answer . denied the commission of any unfair
labor practices.
All Parties hereto were afforded full opportunity 'to be
heard, to examine and cross-examine Witnesses, to intro-
duce evidence, and to argue orally. Briefs were submit-
ted by the General Counsel, Respondent; and the Charg-
ing Party. All briefs were duly considered.
On the entire record 2 in this case and from my obser-
vation of the witnesses and their demeanor on the wit-
ness stand, and on substantive, reliable evidence Consid-
efed along with the consistency and inherent probability
of testimony, I make the following
FINDINGS OF FACT
I. JURISDICTION AND STATUS OF LABOR
ORGANIZATION—PRELIMINARY CONCLUSIONS OF
'LAW
The complaint alleges,-- Respondent admits, and I find
that Burner Systems International, Inc. is- a Georgia cor-
poration engaged in the manufacture-of heating products
in Rossville, Georgia. Jurisdiction is not in issue. purner
Systems International, Inc., in the past 12 _months, in the
course and conduct of it g business operations shipped
products from its Rossville facility, valued in excess of
850,000 directly to points located outside the State of
Georgia. I conclude and find that Burner Systems Inter-
national, Inc. is an employer engaged in commerce and
in operations affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
The complaint alleges, Respondent admits, and I Con-
-elude and find that , the Union is a labor organization
within the meaning of Section 2(5) of the Act.
All.dates herein are in 1982 unless otherwise specified
2 The General Counsel filed a posttrial motion to admit certain evi-
- dence . which was not available at the close G C Exh 13 was reserved
for such later submission Neither Respondent nor Charging Party op-
posed the General Counsel's motion and therefore, I shall receive the evi-
dence into the record as G C Exh 13 At the trial I rejected Respond-
ent's offer of Exh 8 I now reverse that ruling and receive Into evidence
R Exh 8
956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. BACKGROUND
Respondent operates a plant in Rossville, Georgia,
where it manufactures burner elements for suppliers of
heating products. The plant operates one shift from 7
a.m. to 3:30 p.m. with a probationary period of 60 days
for all employees. During 1982, the maximum comple-
ment of .employees was 60-odd with approximately 13
employees being laid off prior to 'August. On December
28, 1971, the Board certified the Union as the exclusive
collective-bargaining representative of all the production
and maintenance employees employed by Respondent at
its Rossville, Georgia plant. Office clerical, professional
employees; guards and supervisors as defined in the Act
were excluded from representation. Thenceforth, the
parties have negotiated successive collective-bargaining
contracts with the latest terminating August 2. Negotia-
tions began in mid-July prior to expiration of the con-
tract. Proposals from both parties were tendered in writ-
ing during the three meetings held. The Union went on
strike August 3 when the work force numbered 53 em-
ployees Although some violence occurred on the picket
line, Respondent could not assess culpability to any indi-
vidual striker for such misconduct. Indeed, Respondent
stated at trial that such violence was not considered in-its
procedure for recalling striking employees. Replacement
employees were hired during the strike and no dispute
exists between the parties as to the permanent status of
those replacements. when hired Respondent admitted
and the "parties stipulated that recognition of the Union
as representative of the employees in the bargaining unit
was withdrawn by Respondent on August 24 following
the return to work, across the picket line, of 5 striking
employees and the hiring of some 32 replacement em-
ployees. Two days later on August 26 the Union made
an unconditional offer to return to work for all striking
employees. Respondent, based on the Union's failure to
give proper notice to the Georgia Department of Labor
of its intent to strike, assumed that all striking employees
lost their status as employees under , the Act but at
strike's end disciplined only six of the strikers by-refusing
them their reinstatement rights All other strikers were
reinstated The negotiations, the strike, and the reinstate-
ment of strikers give rise to the issues to be determined
herein Supervisory and rank-and-file employees testified
at the trial, and the pertinent portions of their testimony
are detailed below.3
III. ALLEGED UNFAIR LABOR PRACTICES
Charles H. Dickas, owner and president of Respond-
ent, testified that the most recent contract with the
Union was dated August 2, 1979, and terminating August
2, 1982. Just prior to termination the parties met to nego-
tiate a new contract 'Three such meetings were held be-
ginning July 13 with the last occurring on July 30. Re-
spondent's representatives at all three meetings were
Dickas, Executive Vice President Joe Ferguson, and
Plant Manager Jim Coogler. (The parties stipulated to
the supervisory capacity of Ferguson and Coogler ) The
3 The above comes from admissions in pleadings, stipulations on the
record, or the uncontroverted testimony of credible witnesses
Union was represented by Bill Smith, International rep-
resentative; ' Margaret Brogdon, employee president of
the local union; and ,employees Ann Allen, Sue Pollard,
and Greg Gilstrap. The Union submitted written propos-
als at the first meeting. The parties discussed the union
proposals then adjourned At the second meeting on July
20 Respondent submitted written counterproposals to the
Union Included in Respondent's proposals were speci-
fied rejections of each of the Union's prior economic
proposals. Dickas stated that he told the union negotiat-
ing committee in each meeting that there was no possible
way the Company could economically make any conces-
sions this year. The Company was not in a position to
make any monetary concessions or give the Union what
it was asking for. Dickas explained to the Union that
anYthing that was going to cost the Company money
was out of the question because the Company was en-
gaged in a life-and-death struggle to stay alive.
At the second meeting, Smith asked Dickas if the
Union could look at the company books. Dickas replied
that the Company was private with him owning practi-
cally all the stock. Since he was a very personal person,
he did not see where it would do any good for the
Union ,to see the books, especially in view of the Compa-
ny's prior explanation of its financial condition and posi-
tion in the market place. Dickas told the Union that
"Coogler doesn't get to see the books." Only the CPA
and the officers of the Company see the books. The
Company did not show the books to anybody. Smith did
not repeat his request nor was the request discussed any
further. Dickas stated that had he known that he could
avoid a strike by showing the company books to the
Union he would have done so.
Dickas learned of the strike vote from Brogdon on the
evening of August 2. After Brogdon told him the em-
ployees voted to strike Dickas told her, "If y'all struck, I
guess that's it then." Brogdon said she would like to talk.
Dickas asked, "What is there to talk about?" He then
stated, "You all have struck, apparently you're through"
Some 42 employees did go on strike with several em-
ployees continuing to work About 3 of the 13 employ-
ees who had been on layoff or on leave returned to work
during the strike.
Several days after the stnke started Tipple, from the
Federal Mediation and Conciliation Service, called to
verify that employees were on strike. He said he had no
official information of a strike. Later, Tipple called and
asked Dickas if the Company was willing to meet with
the Union. Dickas informed Tipple to work through the
Company's lawyers. A third call from Tipple informed
Dickas that the Union wanted to meet. Again Dickas
, told Tipple to call the lawyer and make arrangements
Dickas could not recall the dates of the three calls from
Tipple.,
On August 14, Respondent sent a letter to all strikers
asking them to return to work and setting a deadline of
August 18. After August 18, Respondent advertised for
and hired some 34 replacement employees between
August 23 and 25. On August 26, Respondent received
from the Union an unconditional offer for all strikers to
return to work. As needs increased or vacancies oc-
BURNER SYSTEMS INTERNATIONAL 957
curred, the striking employees were returned to work.
Eventually all but six employees were returned to work.
The six employees not reinstated are: Margaret Brogdon,
Edna Watts, Wanda Creekmore, Henry Percy, Lamar
Scott, and Renee Wyatt.
Dickas testified that during the strikeseveral employ-
ees phoned him at the plant indicating a willingness to
return to work and a disenchantment with the Union.
One employee, he recalled, stated that she did not want
to go on strike in the first place
Margaret Brogdon, president of the local union, testi-
fied that she was employed by Respondent from October
16, 1972, to August 2, 1982, as a porting machine opera-
tor. Brogdon represented the Union at all three negotiat-
ing sessions held July 13, 20, and 30. Each of the Union's
proposals on economic matters sought some kind of in-
crease. In each instance Respondent replied that the
Company could not afford any increased cost. Specifical-
ly, on the wage proposals of $1 an hour for each of the 3
years the Company said they could not give any more
wages for the first year in view of the bad economy.
Business had been bad with orders reduced from past
years so the CoMpany just did not have the money to
give. The Union' proposed extending the present con-
tract, as is, with no wage increase the first - year and a
wage reoRener for the second and third years. The Com-
pany rejected any extension stating that the Company
needed fixed costs to project ahead and commit to future
orders.
The Company's final proposal on wages at the last
meeting was for no increase the first year and 25 cents
and 10 cents for each of the next 2 years. During the dis-
cussion of wages the Company again stated that it did
not have the money for the first year but was willing to
take a gamble on the second and third years. Although
the Union did not distrust the Company they asked to
see the company books. Brogdon testified, "We needed
to see some proof for our people, and we could under-
stand if they didn't, but we needed something to see."
Dickas, responded, "Nobody sees his books." Ferguson
,said, "Absolutely not." Dickas added, "Jim Coogler
there don't ,even get to see our books." The meeting then
ended There was no contact between the parties con-
cerning another meeting.
On August 2, after work hours, the Union held a
membership ,meeting with approximately 45 employees
attending. Brogdon read the entire proposals to the em-
ployees word-for-word. She reported the financial condi-
tion as expressed by the Company during negotiations
and told the employees; that the Company had refused a
request to see the finanCial records of the Company.
Smith then suggested to the members that they work: for
- 30 days to see if things . Could be .worked out. Smith said
it was a bad time to strike. Following this the employees
had two votes. One, whether to accept or reject the
Company's final offer and twO, whether to strike now or
' hot. The employees voted to reject the final offer and to
strike , now. Later that evening Diekas 'called Brogdon
and asked what the membership had decided to do.
Brogdon told Dickas that the employees voted to strike
but the Union was still willing to bargain. Dickas replied,
"No, we're through and you're through" The Union did
not at this time offer or suggest- that the strike could be
averted if the Union was -allowed to see the books. The
first day of the strike Brogdon told Dickas that anytime
the Company wanted to talk, the Union would do so.
Dickas responded, "Okay." Of the 51 employees in the
plant prior to the strike about 45 were union .members
and of that number 34 went out on strike August 3. The
picket signs carried by strikers read, "Local 613, AIW,
AFL-CIO, on strike for fair wages." During the strike
the Union did not .contact the Company .to set up any
additional negotiating meetings. However, after replace-
ments started going in to work,, the union committee
through Representative Smith, did discuss future meet-
ings with Federal Mediator' Tipple- The striking union
members did not discuss the filing of unfair labor prac-
tice charges against the Company. during the course of
the strike. The strike continued until August 26 at which
time the union members still on strike voted to accept
the Company's last offer . and abandon , the strike. The
Union notified the Company of its willingness to accept
the Company's last offer and, submitted a written uncon-
ditional offer for 'all striking employees to return to
work. Sometime later the . Union filed an unfair labor
practice charge against Responaent.
Lynda Childress testified that she has been employed
by Respondent for 3-1/2 years. Childress attended the
union meeting of August 2 sitting in ,the front row Smith
and Brogdon spoke to the assembled employees. Brog-
don read the content of each proposal from the Union
and the Company. She stated that the Company was
standing firm on its last proposal. Brogdon also stated
that the committee had asked to- see the books but the
Company rejected the request and said -under no circum-
stances would they show anyone .the books. Childress
did not recall any employees as,king 'any ,questions during
the meeting. Smith asked, the - employees to give him
more time to negotiate by deliying any strike action.
Smith suggested that , the, employees. give the Company
time to think about it, partly because it was a bad time to
strike with poor economic conditions everywhere. Chil-
dress did recall that, folloVving" the presentation, the em-
-ployees voted whether to accept or reject the Compa-
ny's last offer and to strike. The vote on the Company's
last offer was by a show of hands with a majority voting
to reject. Smith - then said to Brogdon, loud enough for
the employees to hear, "Let's just vote, Margaret. These
people have their minds Made up." Paper ballots were
distributed and the vote was taken in secret A majority
voted "yes" to go on strike. 'Smith told the group he
would call to get the strike sanctioned 'and the meeting
ended. .
Pamela Waters testified that she is a reporter for "The
Busy Shopper." She ' authored -the article admitted into
the record. Waters stated that the only sources for the
article were Brogdon and several strikers present at the
time. Brogdon told her about the 'strike including the em-
ployees' reasons for -striking.. Waters recorded what
.Brogdon told her and included- "all" in the article Brog-
don also gave Waters copies- of the union proposals and
company responses to those proposals. 'Waters stated that
the article, as written, accurately reported . what Brogdon
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
told her. When quoting a person for inclusion in an anti-
- cle Waters takes it- word, for word-,in her motes and
places quotes around the ,substance. In addition, Waters
'stated that the contents of the article were not ques-
tioned by _Brogdon or-the Union nor was any retraction
demanded by either: . - „. - •
Joe Ferguson. testified that he is executive =vice, presi-.
dent of Respondent and has been with it for 4-1/2 years.
He served ,on Res'pondent's negotiating committee for all
three meetings. -RespOndent's -economic cOnditicin Was
presented to the union committee at- the start of the first
meeting. The Union then presented its contract proposal
containing a -$1-an-hour inerease for each. of the 3 years.
At' the second nieeting.Respondent presented its response
to the Union's' 'contract 'demands, The' -general . response
was that economic demands- could not be entertained
The company committee stated to the union committee
that this was the . second year of declining sales and the
plant was not' making 'any mdney. The Union then pro-
posed a 1-year extension- of the current contract The
Company rejected he --prorkisal explaining to the Union
the need for firm- cosiS when qubting , prices to customers
over a period of produdtion time` which could- possibly
consume several years.' Feignson specifically mentioned
Lennox and Singer' as -examples of large gas appliance
manufacturers that require'-several years to consummate
an 'order for Respondent's product. Ferguson also men-
tioned that the bustOnfers- were constantly seeking a price
reduction in the : buiners. A‘t the third meeting the Com-
pany submitted its proposal 'of no wage increase the first
year, 25 -cents the seCond year, and 30 cents the- third
year. Other„ partially , economic, proposals made by the
Union were accepted "by the Company: The mbeiing, _
lasted only 15 minutes
„
._ with _very little - discussion by
either side. The last thing the Union said, throUgh Smith,
- was "Let us talk about this, and I'll 'get back to you"
Smith never contadted , the .Conipany after that meeting.
Ferguson Mit remember in which meeting 'it oc-
curred that Smith aiked if the Uriion ,could take a look at
the company, books. ,The -Comf)any remionded . basically
that , it was a private .company .and did not make. its
records available to outside _sources: No further request
for access to the books .was made by the Union. ..
The Union f didcontact the Company on August 26 by
letter. The letter offered the striking employees, return to
work and indicated acceptance of the Company's last
contract offer At that time the plant manning level had
been attained -by new hires. When ,vacancies occurred or
, production required more employees, the striking, em-
ployees were recalled by classification and seniority.
With the exception of the three laid-off, employees re-
called early in the strike, 'no other employees in laid-off
status have been recalled to, work. All- -vacancies were
filled by recalling striking employees until all striking
employees had been .returned to work, excepting six.. The
six employees have not been .reinstated and they were
not considered for reinstatement without regard to, their
classification • or seniority position The_ six employees
were not taken back, because-they had obviously and de-
liberately' flouted the state-judge's order on picket line
procedure _ Several striking employees .were recalled bi
they declined to return to work. 4
IV. ANALYSIS AND CONCLUSIONS
A. Union Request to See Financial Records
AlthOugh some 'confusion exists as to whidh - of tt
three meetings' generated'a union request to- "see tt
'company books;" it is undisputed that Union Representi
tive Smith did ask to "see the books." Further, there
no dispute that the reqUest 'immediately followed.-lb
spondent's proposal of no wage increases during the fir
year of a 3-year contract. Respondent's response to th
request is - equally -undisputed 'and considerably more tha
a terse "no." All witnesses testifying agreed' that the n
sponse to ,the Union Was "This is 'a private company. W
don't even show, our books to the bank. JIM COogle
plani manager, doesn't get to see the books. Only * the ó
.ficers of the ,company can . see the bOoks. No one ,can se.OUT books,".,
Respondent contends that Smith's .request was casth
and, therefore, .did not require an . affirmative respom
and the Union failed to continue Pits request or in son-
. way communicate to Respondent the gravity of its negl
live response. _Such a contention presumes several facto]
that do not exist. A union's request to see ,the compan
books following a position of di/ability to pay need not-,t
formal. So long as the intent behind the request is clear
must be‘honored. Nor does it have to be -repeated or i
some way kept viable particularly in . the ,;circumstanc
- where -the Company's, response leaves no room ft
movement' in the direction of "seeing the books" whic
-is ,precisely the circumstance herein.
- Respondent's alternative contention is that the reque
heed not-be honored because' the Union was treated to
sabstantial discourse on the national ' economy and .the I
nancial 'status of Respondent' supported by the obvioi
loss of -purchase orders and the impending loss of
"patented burner" within' a year: It argnes.that the Cori
pany's financial condition was thus otherwise substantia
•• ed, leaving Respondent 'freeto deny the Union's reques
Counsel asserts, and the record evinces, that the rinic
bargaining committee agreed to -and adeepted 'Respom
ent's appraisal of the general ecOnomic 'conditionslextai
during negotiations piecluding the need for further di
cUssion 'Or 'disclosure. In my , view, even -if the unic
Ciimmiltie did accept 'Respondent's 'appraisal it was sti
entitled fd "see the book" -request. Respom
ent's 'disclosure -Was too general r in'riat̀ure and contamir
nothing specific of Respondent's' then finanCial conditio
Respondent Could have prOduced records of 'dechnir
orders, , records of , lost custdiners, records- of unusual a
tntion of employees, and:recOrds Of 'deClining' sales bui
chose'only to allUde to such. I conclude. that ReSp.ondei
did not otherwise substantiate its' pocii. financial Conaitic
, and, therefore, its denial to the UniontO "see the book'
, was unfounded, more parficularly,:since the LA ion's r
guest iMinediately followed Respondent's .contract pr.
s
4 Diane Stewart; Joyce Medans, and Rick Paqleno.
, BURNER SYSTEMS INTERNATIONAL 959
posal of no wage increase in the first year of a 3-year
contract
Contrary to Respondent's further argument, there is
no obligation on the Union to' attempt any voluntary re-
dreSs of a prior refusal to see the books Moreover,
whether or not the Union presses such request further,
upon abandonment of a subsequent strike, can have no
bearing on the consideration of the refusal of the Union's
prior request. Respondent's refusal of the request stands
alone
I find Respondent's self-serving testimony of its presi-
dent that, to avoid a strike, he would have shown the
books to the Union instructive of Respondent's intent to
exercise its control over negotiations without regard for
the statutory language of Section 8(d).
Based on the above, , I conclude and find that Respond-
ent's professed privacy of its Company precluded the
Union from "seeing the books" no matter what the eco-
nomic circumstance. Such an adamant stance by an em-
ployer in collective-bargaining negotiations is completely
without the language of Section 8(d) of the Act and falls
squarely within the law of the cases wherein the Board
holds an employer's refusal to allow the union access to
its books is bad-faith bargaining violative of the Act and
I so find.5.
Since the time lapse before filing a charge is subject to
several inferences and the probative value of each is
questionable, I do not draw any negative inferences from
the Union's choice of when to file its charge Further, I
do not draw any negative inferences from the General
Counsel's failure to produce notes of bargaining sessions
kept by Brogdon or the minutes of the Union's strike-
vote meeting prepared by the Union's secretary-treasur-
er. I am satisfied that the affirmative evidence in the
record, both corroborated and uncontroverted, is sub-
stantial without the introduction of the notes or minutes
B. Alleged Refusal to Bargain—August 2
The General Counsel argues that Respondent when it
learned of the Union's strike vote on August 2, refused
to negotiate further with the Union, constituting an un-
lawful refusal to bargain. Although there is little dispute
over the substance of the, conversation between Dickas
and Brogdon, an ambiguity does exist as to what was
said by the parties at the last meeting on July 30 pertain-
ing to further negotiations. Respondent claims that the
Union on July 30 stated it would consider the last offer
and get back lo the Company but never did The conten-
tion is the ball was in the Union's court. The General
Counsel claims that Respondent's response to the union
strike vote was a flat refusal to meet further, placing the
Union in a "wait and see" posture. Neither contention is
completely supported in the record Collective bargain-
ing is a two-way street. Both parties must exhibit the vo-
lition to bargain. In this case neither party affirmatively
moved to negotiate further The Union did not after July
30 and Respondent did not after August 2. When final
offers are made and strike votes are taken emotions run
high on both sides. In such an atmosphere, 'parties' in-
5 My determination as well as the arguments of all three parties is
based on NLRB v Truitt Mfg Co, 351 U S 149 (1956)
tents are best evidenced by actions not words. If the
Union truly wanted bargaining to continue during the
, strike, more than "We are ready to talk when you are"
would have been offered The record evidence of the
Union's strike vote meeting is somewhat meaningful to
evince the Union's stance on August 2. Smith at the
meeting recognized the preconceived notion of the mem-
bers to strike and in effect was voted down when he
asked for more time to bargain. It is not unreasonable to
conceive that Smith simply decided to let the employees
have their strike and then later proceed in a more rea-
sonable fashion at the bargaining table. The General
Counsel relies on Dickas' statement to Brogdon during
the phone conversation of August 2 to show Respond-
ent's negative attitude toward further bargaining. How-
ever, the following day, while pickets were in place,
Brogdon again told Dickas that the Union "is ready to
talk when the Company is" Dickas' response to Brog-
don was "okay." When the Union did make an affirma-
tive move to set further negotiation .meetings they did so
through Federal Mediator Tipple, not directly to Re-
spondent In my view each party exhibited an identical
attitude of "wait and see," not an unusual circumstance
in such an atmosphere and certainly not one in which
culpability can be assessed against only one party. As I
view the record evidence in light of the language of Sec-
tion 8(d) and the Board's reasoning in refusal-to-bargain
cases, I am unable to conclude that Respondent refused
to meet further with a union that was demanding further
bargaining without regard for the strike in progress.-Ac-
cordingly, I find that Respondent did not refuse to bar-
gain with the Union as of August 2.
Respondent's argument that Dickas 'could presume an
impasse, precluding further bargaining: existed on
August 2 when Smith failed to get back to the Company
is not only premature in point of time but misses the
mark as a legal conclusion. Impasses are not presumed
but rather have a factual existence. The facts relied on
by Respondent in this case completely negate the exist-
ence of an impasse at any time and in the last analysis a
strike by employees breaks an impasse setting the stage
for further negotiations.
C Unfair Labor Practice or Economic :Strike
The strike which began on August 3 is alleged to be
an unfair labor practice strike. The General Counsel
relies on the uncontroverted testimony of several em-
ployees present at the union meeting when the strike
vote was taken It is crystal clear that the employees had
two votes The first was to decide whether to accept the
employer's last offer and the second was to decide
whether to strike or not There was no preliminary ex-
planation of the voting question nor was there any dis-
cussion of the factors to consider before casting a ballot.
The evidence does show that the employees heard the
complete proposals made by both sides during bargaining
and that the union negotiating committee had requested
to inspect the company books but the request was
denied. There was no further explanation of the bargain-
ing circumstances or their relationship to the employees
about to cast ballots In particular, there Were no ques-
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tions nor discussions relating to the status of prospective
strikers, if and when the employer hired new employees,
assuming a strike was called for. As noted earlier, the
questions put to the voting membership were simple and
direct. The members voted to reject the Company's last
offer and to go on strike as of midnight August 2. The
picket signs carried during the strike read simply, "AIW,
AFL-CIO, On Strike for Fair Wages" The legend on
the signs never changed during the course of the strike.
The General Counsel argues sufficiency of the evi-
dence to support her allegation that the strike was
caused, at least in part, by Respondent's unfair labor
practices.' Respondent, of course, argues the contrary. I
conclude and find that the strike was economic in nature
from its inception. The mere disclosure to the union
membership of circumstances that may constitute a prior
unfair labor practice, without more, even though just
prior to the membership's vote on the question of
"strike" is insufficient to establish that the resultant strike
was caused by the unfair labor practices There must be
a causal relationship 'between the commission of the
unfair labor practices and the incidence of the strike. The
Board has held repeatedly that the occurrence of prior
unfair labor practices, standing alone, is not sufficient to
establish an unfair labor practice strike Here, the facts
evince nothing more to me Brogdon's verbal revelation
to the union members -was simply a report of an occur-
rence. No assessment, discussion, or characterization of
the event ensued As Smith put it to Brogdon, "Let's
vote, they already have their minds made up." I place no
more emphasis on the reported occurrence than Smith
did and apparently the union membership did. I, there-
fore, ,conclude and find that Respondent's refusal to
allow the union negotiating committee to see the books
during negotiations was not a direct cause of the strike
'nor was it a contributing cause to the employees' deci-
sion ,to go-out on strike. Thus, the strike called for by the
union membership on August 2 was an economic strike.6
1 Threat to'permanently replace strikers
The General Counsel alleges further that Respondent's
letter of August 14, circulated to striking employees
during the strike, constituted an unlawful threat to per-
menantly replace the strikers, and prolonged the strike
beyond its reasonable endurance. Further, the General
Counsel alleges that the resultant hiring of replacement
employees, subsequent to the letter and while the strike
ensued, was an unlawful act and contributed to and addi-
tionally prolonged the strike.
The letter on its face does not state that any replace-
ment employee will be a permanent replacement nor
does it describe or characterize the status of those em-
ployees failing to respond to the letter's plea. The letter
is couched in terms of Respondent's rights during a
strike. The strike was 2 weeks old by the time the em-
ployees received the letter and replacements were not
actually hired until 10 'days to 2 weeks after the letter
was sent. Respondent's actions were not hurried nor
equivocal. I cannot, on the basis of all the facts, conclude
6 See Capital Rubber & Specialty Co, 198 NLRB 260 fn 1 (1972), Re-
spondent's 8(d) defense is considered Infra
that the language of Respondent's letter contained a
threat to the striking employees. In my view, Respond-
ent did what it has a legal right to do. Granted, when-
ever employers communicate with striking employees
they may do so at their peril and the General Counsel is
correct in restating case law that employers may not per-
menantly replace unfair labor practice strikers nor threat-
en to do so. But the record shows that, excepting six
strikers, all strikers were returned to work after the
strike. Therefore, Respondent did not permanently re-
place strikers no matter what the nature of the strike. I
find Respondent's subsequent actions partially instructive
of its prior intent when issuing the letter and probative
of the implicit nature of the letter. I find some difficulty
in following the General Counsel's argument of prolon-
gation in that the strike, rather than being continued, was
abruptly abandoned as a result of Respondent's hiring of
replacement employees. The inconsistency is fatal in my
view Accordingly, I conclude and find that Respond-
ent's letter of August 14 was not a threat to permanently
replace striking employees and did not, standing alone or
in conjunction with the actual hiring of replacement em-
ployees, contribute to the length of the strike.
2. Withdrawal of recognition and refusal to reinst,ate
strikers
Owing to Respondent's proffered defense at the trial in
conjunction with arguments in brief and the rather short
chronology of the events, I shall consider the withdraw-
ing of recognition and the refusal to reinstate strikers to-
gether. As previously noted, the record is unclear on the
actual date that Respondent withdrew recognition but
the parties were able to stipulate and Respondent , did
admit to the "on or about" date alleged by the General
Counsel
The General Counsel contends, correctly so, that upon
the expiration of the certification year there exists a re-
buttable presumption of the Union's continued majority
status; Respondent may only rebut this presumption by
establishing that the Union, in fact, lost its majority
status. on the date that it withdrew recognition. She relies
on Pennco, Inc., 242 NLRB 467 (1979), 7 and Burlington
Homes, 246 NLRB 1029 (1979) (citing National Car
Rental System, 8) for support of her restatement of the
law. With regard to the reinstatement-of-strikers issue,
the General Counsel is only contending that the six
named strikers were refused reinstatement as returning
strikers There is no issue of reinstatement to the pres-
trike position of those strikers previously reinstated. Nei-
ther is there an issue of replacement of economic strikers
at the time of the application to return to work on behalf
of all strikers. The uncontroverted testimony in the
record establishes that following the Union's application
for all strikers to return to work, each returning striker
was recalled to his prestrike position, immediately if the
position was available, or whenever a vacancy occurred
which required filling. Without a doubt, all vacancies ex-
7 Reconsidered and affirmed by the Board in a Supplemental Decision,
Pennco, Inc , 250 NLRB 716 (1980)
8 Infra
BURNER SYSTEMS INTERNATIONAL 961
'sting were filled by seniority and classification of the
strikers alone, excepting the six named strikers who were
denied reinstatement
Respondent's defenses are contained in objective evi-
dence in the record, representations of counsel at trial,
and arguments in brief. To recap, the objective evidence
discloses the employees on the payroll prior to the strike;
the employees not reporting for work the day of the
strike; the new hires and returning strikers during the
strike; what employees, if any, were in a status other
than working or striking at the time and a statement of
position submitted to the Regional Office on September
30, 1982.
The earliest date of Respondent's proffer of evidence
to support its objective considerations forming a good-
faith doubt of the Union's continued majority status is
September 30, 1982. In that statement of position Re-,
spondent explicates that on August 18 it was in posses-
sion of facts that led it to doubt the Union's majority
status under the doctrines expressed in Titan Metal Mfg.
Co., 135 NLRB 196 (1962), and National Car Rental_
System v. NLRB, 594 F.2d 1203 (1979), The position
paper then details the facts: 37 of the 51 hourly employ-
ees are, permanent striker replacements; 10 employees did
not go on strike but continued working, 7 employees
were either strikers who returned to work across the
picket line or were in layoff status and reported back to
work during the strike, all employees crossed the picket
line each day in the face of harassment and abuse and
many employees employed during the strike voluntarily
expressed no support for the Union The position paper
was directed to the withdrawal of recognition and Re-
spondent's subsequent refusal to bargain. Striker rein-
statement was not broached.9
At trial and in brief Respondent augmented its defense
to withdrawal of recognition, labeling the strike in
progress at the time of withdrawal as unlawful and un-
protected. The attack on the strike's validity was based
on the Union's alleged failure to notify the state media-
tion'agency as required in Section 8(d) of the Act. Addi-
tionally, Respondent contends that the striking employ-
ees have lost their status as employees due to the notice
failure of Section 8(d) and, therefore, Respondent is not
obligated to reinstate the striking employees.
Respondent's National Car Rental defense is bottomed
upon the circuit court's refusal to enforce the Board
order The court disallowed the Board's use of its pre-
sumption that new employees support the union in the
same ratio as those employees replaced, because all strik-
ers were replaced. The court stated that the Board-cre-
ated presumption does not rise to the level of substantial
evidence. The two Board cases cited by the General
Counsel were decided subsequent to the court decision in
National Car Rental and reaffirm the Board's use of its
presumptions and what proof is required to rebut those
presumptions. The Board test of proof remains the same
and I am bound by the Board law. The Board requires
affirmative evidence that is not subjective or speculative.
Thus, if Respondent is relying on the fact that replace-
9 There was a change of counsel between the statement of position and
the trial
ments do not support the Union there must be more than
the mere employment during a strike. Likewise, strikers
who abandon the strike and cross the picket line to
return to work or employees who chose to remain on
the job evince only disdain for the strike rather than
nonsupport for the bargaining representative. (There is
always a minority of union employees who disfavor a
strike but the strike is called because a majority favors
striking.) Also, employees in layoff status at the time of
the strike and who apparently took no part in the strike
action cannot be presumed by Respondent to no longer
support the Union simply because they returned to work
during the strike. Respondent contends that all employ-
ees who crossed the picket line to work endured harass-
ment and abuse but the record does not contain any evi-
dence that the conduct on the part of strikers was any
different from that normally experienced in a strike situa-
tion. Respondent must show strike, conduct inimical to
the replacement employees' subsequent support for the
Union. This, Respondent's evidence does not do. More-
over, the time period expressed in Respondent's position
paper is in error. August 18 is not the date Respondent
possesed its evidence. The objective evidence in the
record shows prior to August 18 only seven employees
returned-to work across the picket line. Five abandoned
the strike and two returned from leaves of absence. In
addition, replacement employees were not hired until
August 23 when 14 reported; August 24 when 18 report-
ed; and August 25 when 2 reported Of these 34 replace-
ments, Dickas only recalled that 3 or 5 indicated to him
that they did not support the Union and the recalled "in-
dications" were less than specific Such falls far short of
the statement "many employees employed during the
strike voluntarily expressed no support for the Union."
Although not controlling, the fact that neither party can
specifically place the date that Tipple was conversed
with and thereby solidify the date that Respondent first
voiced its withdrawal of recognition, it does cause an
emphasis to be placed on the narrow chronology of
events which influences the determination. E g, from
August 25, the last day that a replacement employee was
hired and one day before the Union's unconditional offer
to return, the ranks of the replacement employees began
a steady decline resulting in only 14 replacement em-
ployees remaining on the payroll
As previously noted the position paper did not include
any 8(d) defense. Indeed, the alleged notice failure was
not known to Respondent at the time it withdrew recog-
nition from the Union nor was it known at the time the
Union made application_ to return the strikers to work or
when the majority of the Strikers was actually reinstated.
Although the date , that Respondent did suspect the
notice failure is not specifically found in the record, it is
clear that Respondent had no .al;Vareness until just before
the state proceeding on unemployment benefits very late
in 1982 or in early 1983. As Respondent states in its
brief, 'It turns out, however,. that the Union had been
derelict in its compliance with Section 8(d)." The only
direct evidence to establish a date is Respondent's affida-
vit exhibit dated February 16, 1983. However, counsel
did represent that the exhibit was the second of, two affi-
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
davits secured from the state offices In any event. Re-
spondent cannot now . be heard to defend its act of with-
drawal of recognition from the Union with a circum-
stance unknown to it at the time it acted. To even con-
sider such a defense would make a mockery of the "ob-
jective considerations" required by the Board. Albeit Re-
spondent expressly denied any reliance on the picket line
conduct of some strikers, it is interesting to note that the
temporary restraining order obtained on August 5 was
implemented by interlocutory order on August 20 and 4
days later the court found several strikers in contempt of
its order and fined and/or jailed several. Approximate to
this day Respondent informed the Federal mediator that
it was ,withdrawing recognition from the Union. In fact,
Ferguson testified that the reason the six named strikers
were not reinstated was their picket line conduct result-
ing in their contempt citation by the state court Further
chronological and substantive inconsistency is found in
the fact that, notwithstanding admitted withdrawal of
recognition from the Union on August. 24, Respondent
did, 2 days later, honor the Union's application to return
the strikers to work and ceased hiring new employees:
All but the six strikers_ named were returned to their
prestrike position. I, therefore, conclude that the record
facts do not sustain Respondent's defenses to the alleged
unlawful withdrawal of recognition nor its refusal to re-
instate the six named strikers following the Union's un-
conditional offer to return all strikers back to work. I
further conclude and find that Respondent's reason for
denying reinstatement to the six named strikers was im-
permissible under the statute. Accordingly, the General
Counsel has sustained her burden of proof that Respond-
ent violated Section 8(a)(1) and (5) of the Act by with-
drawing recognition from the Union on Augu st 24 and
further violated Section 8(a)(3) of the Act by failing and
refusing to reinstate the six named striking employees
Respondent's further reliance on the unknown circum-
stance of the suspected failure of the 8(d) notice to
defend its refusal to reinstate the six named strikers suc-
cumbs as well. Such a defense applies to all employees
engaged in the strike and their representatives Respond-
ent reinstated some 31 striker's before it knew of any
notice 'failure prospect, which means that the notice fail-
ure was not a consideration for how and when the strik-
ers returned. Since it was not a consideration at the time
of the return it cannot be a consideration for the refusal
to return. Such a generic defense must be a defense to all
or none. Respondent cannot be allowed to pick and
choose those strikers to whom it would apply such a de-
fense and others to whom it would not. Only when Re-
spondent's defense is the individual conduct of strikers
may Respondent pick and choose, but even then Re-
spondent must be uniform and nondiscriminatory in its
discipline. There is evidence on the record to suggest
that Respondent's real reason for refusing to reinstate the
six named . strikers was picket line conduct found con-
temptuous by the state court. Later, Respondent realized
the futility,of such a defense due to the lack of identifica-
tion of known Strikers with the known conduct' and shift-
ed its defense to Section 8(d). In my view, such a shift is
fatal since Respondent's refusal muSt be based on facts it
considered when its decision ridt to reinstate was made.
Moreover, Respondent's evidence to support the exist-
ence of its 8(d) defense is not completely adequate As
contended by the General Counsel and the Charging
Party, the evidence does not establish that the search in-
dicated by the affidavit was exhaUstive nor does it estab-
lish that the use, if any, made of the notice forms was as
envisioned by the Act's Section 8(d) The cases cited by
all parties in support of their respective positions evince
a more substantial proof than that offered by Respond-
ent. Additionally, Respondent's defense relies heavily on
several ,inferences which I am unable to draw from the
facts proffered in the record. Further, the uncontrovert-
ed testimony from both sides shows that the Union did
solicit the 'services of the Federal Mediation and Concil-
iation Service and apparently with proper notice since
no question was raised by any party or the FMCS. If I
were to draw any inference from all the record facts it
would simply be "propriety begets propriety." In view
of the above, I reject Respondent's 8(d) defense on the
two grounds. One, I conclude and find that Respondent's
proof is insubstantial to verify the Union's failure to give
notice to the State Labor Department; and two, even if
Respondent's proof was substantial to prove failure of
notice, Respondent's knowledge and use of such knowl-
edge does not prevail within the necessary chronological
sequence of availability of defenses.
CONCLUSIONS OF LAW
1. All production and maintenance employees em-
ployed by Respondent at its Rossville, Georgia plant, but
excluding all office clerical employees, professional em-
ployees, guards and , supervisors as .defined in the Act,
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the
Act.
2. At all times since December 28, 1971, the Union has
been, and is, the representative of a majority of the em-
ployees in the appropriate unit and by virtue of Section
9(a) of the Act has been, and is, the exclusive representa-
tive of all the employees in said unit for the purposes of
collective bargaining.
3. By refusing the Union's request to see its books on
July 30, Respondent has engaged in an unlawful refusal
to bargain in violation of Section 8(a)(1) and (5) of the
Act
4. By withdrawing recognition from the Union about
August 24, Respondent has engaged in an unlawful refus-
al to bargain in violation of Section 8(a)(1) and (5) of the
Act.
5. By refusing to reinstate six of its striking employees,
Respondent has engaged in unlawful discrimination
against its striking employees in violation of Section
8(a)(1) and (3) of the Act.
6. The General Counsel has not sustained her burden
of proof for any other allegations in her complaint.
7 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I find It necessary to order Re-
BURNER SYSTEMS INTERNATIONAL 963
spondent to cease and desist therefrom and to take -cer-
tain affirmritive action designed .to effectuate the policies,
of the Act.
Having found that Respondent discriminatorily refused
to reinstate Margaret Brogdon, Henry Percy, Wanda
Creekmore, Edna Watt, Lamar Scott, and Renee Wyatt,
its striking employees, I find it necessary to order it to
offer them full reinstatement to their former positions or,
if those positions no longer, exist," to "substantially equiva-
lent positions, with backpay computed on a quarterly,
basis and interest thereon to be computed in the manner,
prescribed in E .W. Woolworth Co., 90 NLRB 289 (1950),
and Florida Steel Corp., 231 NLRB 651 (1977)," from
the date they would have been reinstated by seniority
and classification to the date of proper offer of reinstate-
ment.
On 'these findings of fact and conclusions of law and
on the entire record, I issue the . following recommend-
ed"
ORDER •
The Respondent, Burner Systems International, Inc.,
Rossvile, Georgia, its officers, agents, successors, and as-
signs, shall ,
1. Cease and desist from
(a) Refusing tO bargain collectively with the Union by
refusing the Union's request to see the'financial records.
of the Company and by -withdrawing recognition from
the Union • 1
•(b) Refusing to reinstate its striking eniployees follow-
ing their unconditional application to return to work. -
(c) In any -like or related manner interfering with, re-
straming,, or coercing employees , in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following . affirmative action necessary to
effectuate the policies of the Act.
10 See generally Isis Plumbing Co': 138 NLRB 716 (1962)
" If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as proVided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
(a) On request of the Union, bargain colleatively with
it as the exclusive representative of Respondent's em-
ployees .in the unit described above and disclose to the
Union its financial records to further the bargaining obli-
gation. •
(b) Offer to reinstate Margaret Brogdon, Henry Percy,
Wanda Creekmore, Edna Watt, Lamar Scott, and Renee
Wyatt to their prestrike positions and make each whole
in the manner provided in the remedy section herein.
(c) Expunge from its files any references to the failure
to reinstate and the reasons therefor, for each of the em-
ployees named above and notify each in writing that this
has been done and that evidence of the failure to rein-
state or the reasons therefor will not be used as a basis
for future personnel actions against them.
(d) Preserve and, .on • request, make available to the
Board or its agents for examination and copying, all pay;
roll records, social security payment records, timecards,
personnel records and reports, and all other records nec-
essary to analyze the amount of backpay due under the.
terms of this Order.
(e) Post at its 'plant in RoXsville, Georgia, copies of the
attached notice marked "Appendix " 12 Copies of the
notice, on forms provided by the Regional Director for
Region 10, after being signed by the Respondent's au-
thorized representative, shall be posted by the Respond-
ent immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted:Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced; or covered by
any other material. .
(0 Notify the Regional Director in writing within 20
days from the date -of this Order what steps , the Re-
spondent has taken to comply
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found
2 If 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 Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board"