Butcher Boy Refrigerator Door Co.Download PDFNational Labor Relations Board - Board DecisionsJun 20, 1960127 N.L.R.B. 1360 (N.L.R.B. 1960) Copy Citation 1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with a well recognized rule of evidence." (Crown Corrugated Container, Inc., 123 NLRB 318, wherein the Board quoted from N.L.R.B. v. Baldwin Locomotive Works, 128 F. 2d 39, 46 (C.A. 3)). Wigmore has referred to the crimen falsi of the common law as including forgery, perjury, barratry, subordination of perjury, suppression of testimony by bribery, conspiracy to procure the absence of a witness, or conspiracy. Wigmore on Evidence (Third Edition), Volume II, Section 520. Even the testimony of a witness convicted of one of the latter crimes, however, must be considered by the trier of the facts. United States v. Margolis, 138 F. 2d 1002, 1004 (CA. 3); Colt v. United States, 160 F. 2d 650, 651 (C.A. 5); United States v. Montgomery, 126 F. 2d 151, 155 (C.A. 3); McCormick v. United States, 9 F. 2d 237, 239 (C.A. 8).i After such consideration, it may, of course, be found unworthy of belief. On the other hand, it may be accepted as credible, provided it has been "scrutinized with care." United States v. Margolis, supra. The convic- tion of McLendon was not for a crime of falsehood, nor was it of such a nature as to discredit completely the credibility of this witness. Capitol Fish Company, 126 NLRB 980, footnote 3. ' At the original heaiing in July •1959, McLendon was produced as a witness for the General Counsel and testified as to events which occurred in March of that year. In the Intermediate Report, McLendon's testimony was credited over that of Fore- man McMichael as to two alleged conversations. McLendon testified that in one, prior to, Gibbons' discharge, McMichael stated ". we've got one man here that belongs to the Union. . . We can't fire him for belonging to the union, but we can fire him for cutting lengths too short or too long." In the other conversation, according to McLendon, the foreman stated, shortly after Gibbons' termination, that "we just got rid of one man that belonged to the Union." McMichael denied having made any of these comments to McLendon. In reconsidering the credibility of McLendon in the light of the evidence as to his conviction of a crime, I have reviewed the testimony of McLendon and McMichael and their demeanor while testifying at the original hearing. In the Intermediate Report issued on October 12, 1959, I found that McMichael was less credible than several of the General Counsel's witnesses. My opinion of his reliability on the stand and the weight to be accorded his testimony is unchanged. Moreover, I remain impressed by the fact that, while a witness, McLendon' withstood a skillful and searching cross-examination, whereas McMichael did not. After a careful scrutiny of the testimony of these two witnesses and a review of their comparative demeanor at the time of their appearance on the stand, it is my conclusion as to McLendon that, notwithstanding the newly received evidence of his criminal reco?d, his testimony is still more worthy of belief than that of his foreman. In view of the foregoing conclusion and after a reconsideration of the entire record, I conclude that the new evidence produced with respect to McLendon does not affect or require modification in the findings of fact or of unfair labor practices heretofore made in the original Intermediate Report. 1 See United Staten v Margolis, 138 F 2d 1002 at 1004 • "The appellant contends that because Sands was an admitted perjurer his testimony should not have been considered. Even a convicted perjurer, however, may testify competently. The0jury must determine his credibility. , The court must charge that the testimony of such a witness must be scrutinized with care " Butcher Boy Refrigerator Door Company and Carpenters Local 2674, United Brotherhood of Carpenters and Joiners, of America, AFL-CIO. Cases Nos. 13-CA-2753, 13-CA-3107, and 13-CA-3113. June 20, 1960 DECISION AND ORDER On February 12, 1960, Trial Examiner David London issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as 'set forth in the copy of the 127 NLRB No. 160. BUTCHER'BOY REFRIGERATOR DOOR 'COMPANY 1361 Intermediate Report attached herein. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Jenkins, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Intermediate Report and the excep- tions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modifications and additions noted below. 1. We find, in agreement with the ultimate conclusions of the Trial Examiner, that by the following conduct, as more fully described in the Intermediate Report, the Respondent violated Section 8 (a) (5) and (1) of the Act : (a) by conditioning during the May 26, 1958, bargaining conference its offer of a 3-cent an hour wage increase upon the withdrawal by the Union of unfair labor practice charge involving Hall's discharge; (b) by unilaterally increasing the wages of its employees after the Union called a strike on August 4, 1958, and April 10, 1959, while the parties were still engaged in collective-bargaining negotiations; and (c) by failing to supply the Union with certain wage information which the Union requested at the February 18, 1959, meeting and which the Respondent then agreed to supply.' We also find that, in addition to the foregoing conduct, the Respond- ent has violated its obligation to bargain in good faith by engaging in dilatory tactics in the conduct of the bargaining negotiations, and by its failure to fulfill its promise of February 18, 1959, to let the Union know when the Respondent would meet again. Thus, following the abortive meeting of May 26, 1958, at which the parties disagreed on all major issues, Union Representative Corbin made six or seven unsuccessful attempts, through Commissioner Luchs to arrange for another bargaining session with the - Respondent. When these attempts to bring about another conference failed, Corbin on July 22 called a meeting of the ResponderiCs employees and reported to them on the lack of progress in the bargaining negotiations and the inability 1 As the record , exceptions, and brief adequately present the issues and positions of the parties herein ,, the Respondent ' s request for oral argument is hereby denied. We do not adopt for lack of sufficient support in the record the following findings of the Trial Examiner : ( a) That the Respondent refused during the early bargaining con= ferences to allow the accredited employees', negotiating committee to participate in the negotiations ; ( b) that in the course of the bargaining conference of July 29, 1958, Re- spondent ' s president , Slopa, threatened to lock out employees the following Friday in order to force the Union to abandon its contract demands and agree to the Respondent's ; , and (c ) that the Respondent-at the May 26, 1958, conference "rescinded the agreement" reached between the parties at'the ' Dfay 13, 1958, meeting as to the composition of the grievance committee 560940-61=vol. 127-8't ' 1362 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD to arrange for another bargaining session., The meeting then adopted a motion to go on strike, unless the Respondent agreed to resume the negotiations. It was only after President Slopa had been informed by Corbin of the union action that he agreed to resume negotiations and meet with the Union on July 29, or-after a lapse of more than 2 months since the previous meeting. The Respondent was likewise dilatory in the performance of its bargaining obligation after the last bargaining session held on February' 18, 1959. At that conference Respondent's attorney, Hickey, agreed in behalf of the Respondent to supply Union Attorney Mamet %vit'h certain wage information requested at the meeting and to let him know when the Respondent would meet with the Union again. While, after the delay of, more than 20 days, the Respondent on April 10 finally supplied the Union with its wage rates, this information, as found by the Trial, Examiner, was far from complete. Nor did-Hickey ever inform Mamet as to when the Respondent would be prepared to meet with the Union. In the interval between' February •18 and April 10, moreover, the Re- spondent took a unilateral decision to give a general wage increase to its employees effective as of April 10, 1959. We find that the fore- going dilatory tactics of the Respondent in conducting collective- bargaining negotiations are inconsistent with its obligation to meet with the Union and supply it with proper information without undue delay and to bargain in good faiths ORDER Upon the entire record in this case, and pursuant to Section 10(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders the Respondent, Butcher Boy Refrigerator Door Company, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : - (a) Discouraging membership in Carpenter's Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or in any other labor organization of its employees, by discharging, refusing to reinstate, or other"wi"se discriminating against any of its employees because of their concerted or union activities. (b) Conditioning any offer of a wage increase upon the withdrawal of an unfair labor practice charge. (c) Unilaterally changing the wage structure or working conditions of its employees. • " (d) In any other' manner interfering with, restraining, or coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition 3 Reed & Prince ilfanufacturt,ig Company, 96 NLRB 850, enfd 118 F 2d 874. 882 (C A 1), cert denied 313 U S 595; M & M Bakerties, Inc, 121 NLRB 1596, 1003 -BUTCHER BOY REFRIGERATOR' DOOR COMPANY 1363' of:employment, as'authorized in Section 8(a) (3). of-the Act; as-modi- fied by. the Labor-Management Reporting and Disclosure Act of 1959. 2. Take the following- affirmative action which the Board finds will effectuate the policies, of the Act: (a) Offer Kenneth Hall, Lester Blazer, and Herman Moritz imme- diate and full reinstatement to their former or substantially equivalent positions,. and make each of them whole, together with the employees named in footnote 11 of the Intermediate Report, all in accordance with and in the manner set -forth in the section of the Intermediate Report entitled "The Remedy." (b) Furnish the above-named Union all information in its posses- sion and necessary for intelligent collective bargaining, including the names of all employees in the bargaining unit, their hiring date, years of service, classification, and their existing rate of pay. (c) Upon request, bargain collectively with the above-named Union as the'exclusive bargaining representative of the employees in the above-described unit. (d) Preserve and, upon request, make available to the Board and its agents, for examination and copying, all payroll records, social security payment records, timecards, personnel records and reports, and all other records necessary and useful to determine the amount of backpay due and the rights of reinstatement under the terms of the Order herein. (e) Post at its plant at Harvard, Illinois, copies of the notice hereto attached marked "Appendix." 4 'Copies of said notice, ,to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondent or its representative, be posted by Re- spondent immediately upon ; receipt: thereof, and be. maintained, by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees-are customarily posted. Reasonable steps shall betaken by. Respondent to insure that said notices are not altered, defaced, or covered by any 'other material. .(f) Notify the Regional Director for the Thirteenth Region, in writing, within 10 days from the date of this Order,.what steps. Re- spon dent has taken to comply, herewith.. a In the event that this Order is enforced by a decree of a United States Court of Appeals, there 'sh'all ' be substituted for the words "Pursuant to a Decision and Order" the words. "Pursuant to-a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the Labor Management Relations Act, we hereby notify our employees that: 1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL NOT discourage membership in Carpenters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL- CIO, or any other labor organization, by discharging or refusing to reinstate, or otherwise discriminate, against any of our em- ployees because of their union or concerted activities. WE WILL make whole Kenneth Hall, Lester Blazer, Herman Moritz, David Adams, Glenn Borgo, Laurence Dickerson, William Dixon, Edward Frame, Arno Grafe, Leo Soucie, Raymond Bailey, Lyle Matthews, C. Englebrecht, Edward Groskinsky, Floyd Groskinsky, John Kramer, Ruben Olson, Rudy Richter, Peter Allegretti, Harold Grashel, Richard Fluger, and Richard Blank for any loss of pay they may have suffered as a result of our dis- crimination against them. WE WILL offer Kenneth Hall, Lester Blazer, and Herman Moritz immediate and full'reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed. WE WILL NOT condition any offer of a wage increase upon the withdrawal of an unfair labor practice charge filed against us. WE WILL NOT unilaterally change the wage structure or working conditions of our employees. - WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the rights to self -organiza- tion, -to form labor organizations, to join or assist Carpenters Local. 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collec- tive bargaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be effective by an agreement requiring membership in a labor organization, as authorized, in Section 8 (a) (3) of the Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. ' WE WILL furnish the above-named Union all information in-our possession and necessary for intelligent collective bargaining, in- eluding the names of all employees in the bargaining unit here-' after designated, their hiring date, years of service, classification, and their existing rate of pay. . WE WILL bargain collectively, upon request, with Carpenters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, as the exclusive collective-bargaining repre- sentative of the employees in the appropriate unit described below, and, if an understanding'is reached, 'embody such understanding DOOR COMPA-_N_" ?11365 in a signed agreement: • The, appropriate colledtive-bargaining unit is All production and maintenance employees at our Harvard, Illinois, plant, exclusive of all office and clerical employees, watchmen, guards, professional employees , and supervisors as defined in the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members in good standing of Carpenters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, or any other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8(a) (3) of the National Labor Relations Act, as modified by the Labor-Management Reporting and Disclosure Act of 1959. BUTCHER Boy REFRIGERATOR DOOR COMPANY, Employer. Dated---------------- By------------------------------------- (Representative) (Title) This notice must remain posted for 60 days from.the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge filed in Case No. 13-CA-2753 by Car- penters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, herein called the Union, against Butcher Boy Refrigerator Door Com- pany, herein referred to gas Respondent, the General Counsel, on October 29, 1958, issued a complaint in that proceeding alleging violations by Respondent of Section 8(a)(1), (3), and (5) of the National Labor Relations Act, as amended, herein called the Act. With respect to the unfair labor practices, that complaint, as subsequently amended, alleges that since on or about February 15, 1958, Respondent has refused to bargain in good faith with the Union, the certified representative of Respondent's employees, by (a) refusing the Union's request to meet. and bargain with members of its negotiating committee; (b) refusing to meet and bargain with the Union until the Union signed a no-strike clause; (c) offering the grant of a 3-cent hourly pay raise if the Union would withdraw an unfair labor practice charge filed by it; (d) engaging in dilatory and evasive tactics in arranging and participating in bargaining meetings; (e) rescinding agreements which it had agreed upon in previous meetings; (f) threatening to close its plant until "a contract was reached"; (g) unilaterally increasing the wages of its employees; and (h) failing to submit information regard- ing classification, rates of pay, hiring dates, and years of service of its employees. The complaint in Case No. 13-CA-2753 also alleged that on or about February 26, 1958, Respondent discriminatorily discharged Kenneth Hall for the reason that he had joined and assisted the Union or engaged in other mutual aid or protection, and that Respondent has ever since failed and refused to reinstate him to his former or substantially equivalent position for the same reason. It further alleged, as sub- sequently amended, that Respondent had interfered with, restrained, and coerced its employees in the exercise of their guaranteed rights by engaging in the following conduct: (a) Instituting a no-smoking rule in its plant in January 1958 because its employees engaged in union or concerted activities for the purpose of collective bargaining, or other mutual aid or`protection; (b) installing locks on the washroom doors on or about February 25, 1958, because its employees engaged in the activi- ties described immediately above; (c) keeping under observation and surveillance on or about July 12, 1958, the meeting place, meetings, and activities of the Union; 1366 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD -and (d) in or about January and February 1958,'' withholding an insurance check from employee Richard Blank because he engaged in union or other protected activity. A hearing upon that original complaint, and Respondent's answer thereto denying the commission of any unfair labor practice, was 'held before Trial Examiner Thomas Wilson on December 16, 17, and 18, 1958. Thereafter, the stenographic notes of that hearing were stolen from the court reporter before she had an oppor- tunity to transcribe them, thereby making the official record of that hearing unavail- able. Pursuant to a motion of the General Counsel, the aforementioned proceeding was, on April 13, 1959, ordered reopened for the purpose of retaking the entire testimony with respect to the issues involved therein. In the meantime, further charges were filed by the Union against Respondent in Cases Nos. 13-CA-3107 and 13-CA-3113. Pursuant to those two charges, the General Counsel filed a consolidated complaint against Respondent alleging further violations of Section 8(a)(1) and (3) of the Act. Specifically that complaint alleged that, following an unfair labor practice strike in which its employees en- gaged, Respondent, on or about December 18 and 22, 1958, and on or about January 2 and 8, 1959, refused the unconditional offer of 23 named striking em- ployees to return to their former or substantially equivalent positions. Respondent filed an answer, and an amended answer, to that complaint denying the commission of any unfair labor practice. On June 30, 1959, the Acting Regional Director for the Thirteenth Region entered an order consolidating all three cases above-mentioned for the purpose of hearing. Upon due notice, that consolidated hearing was held before Trial Examiner Wilson at Harvard, Illinois, between July 14 and 30, 1959. The General Counsel, Re- spondent, and-the Union were all represented by counsel, participated in the hearing, presented evidence, and cross-examined witnesses.' Briefs from the General Counsel, Respondent, and the Charging Union, received on or about November 14, 1959, have been duly considered by me. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT It THE BUSINESS OF RESPONDENT Respondent is, and at all times herein mentioned has been, a corporation incor- porated under the laws of Illinois, having its office and manufacturing plant at Harvard, Illinois, where it is, and at all times herein mentioned has been, engaged in the manufacture of refrigerator doors and handles and related products. In the conduct and operation of its business, Respondent causes, and at all times material herein has continuously caused, large quantities of its finished products described above to be shipped and transported in interstate commerce into and through States of the United States other than the State of Illinois . During the calendar year 1957, the value of finished products sold and transported by Re- spondent from its Harvard, Illinois, plant, directly to points outside the State of Illinois, was in excess of $500,000. Respondent is, and at all times' material herein has been, engaged in commerce and its operations have affected commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Carpenters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is, and at all times material herein has been, a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Sequence of events In 1952, Respondent moved its operations and plant from Chicago, Illinois, to Harvard, Illinois While it was engaged at Chicago, and up to the time of the events with which we are concerned which all took place at Harvard, Respondent never had "a union contract" or "any' dealings with any union." On or about December 20, 1957, a majority of Respondent's production and maintenance employees, by -a secret election conducted under the supervision of the Board, designated the. Union as their representative for the purpose of collective i Respondent's posthearing motion to strike paragraphs numbered XI(h), XI(i), XVI, XVIII, and XIX of the-complaint as amended in Case No. 13-CA-2753 is hereby denied. BUTCHER BOY REFRIGERATOR DOOR COMPANY 1367 bargaining: - On or about December 31, 1957, the Board's Acting Regional Director for the Thirteenth Region certified that the Union had been designated and selected as such representative of Respondent's employees in the following appropriate unit: All production -and maintenance employees of Respondent at its Harvard, Illinois, plant , exclusive of, office -and clerical employees, watchmen, guards, . professional employees, and supervisors as defined in the Act. Pursuant to a demand by the Union on December 26, 1957, the parties met to begin collective-bargaining negotiations at the Company's premises on January 8, 1958. In attendance at that meeting in behalf of Respondent were its committee composed of George Slopa, its president,2 his brother, Vice President Robert Slopa, and Joseph Willig, Respondent's office and sales manager. The Union was rep-' resented by Glenn Ehlert, its business manager. Though the Union had appointed a bargaining committee consisting of five employees, no employee was ever present at any of the several conferences in which Ehlert participated because "management refused to allow them to sit in on the meetings." The first meeting between the parties was devoted primarily to an explanation by Slopa of the Company's position in the industry, competitivewise, and-in comparison of its operations with that of its leading competitor. During the'course of the meeting, however, Respondent "insisted upon a 45-day no-strike clause" before it would commence bargaining concerning wages and other terms and conditions of employment. On February 6, 1958,3 Ehlert mailed two copies of a proposed agreement to Respondent. Several bargaining conferences followed between that day and Feb- ruary 26, but no substantial progress was had toward complete agreement on any of the substantial terms of a collective-bargaining contract. During these meetings, Slopa several times repeated his demand for at least a 45-day no-strike period as a condition to the continuance ' of the negotiations. In the course of the same conferences, "management refused to allow [the employees' negotiation committee] to sit in on the meetings." 4 - During the period just covered, employee Richard Blank became entitled to reim- bursement from Respondent's insurance carrier ' for medical and hospitalization expenses incurred by him arising out of the birth of a child to his wife_ on December 22, 1957. The insurance had been maintained by Respondent for the, benefit of its employees and as partial payment for the services rendered by them. Blank promptly filed his claim to receive the benefits to which he was entitled and sometime in January 1958, asked Slopa if he had the insurance check that Blank was entitled to receive. Though Slopa replied that he had the check, he told Blank that he would not give it to him "until this union affair was settled." Blank complained about the failure to receive his check to Kenneth Hall, president of the Union, and the latter asked Slopa if he was going to insist on holding up the check. Slopa replied in the affirmative and when Hall asked why, Slopa stated that he had "no use for this union" and added that if Hall would "give these guys back all the money [he] hi-jacked out of them to join the Union" he, Slopa, would give Blank his check. Blank did not receive the check he was entitled to receive until about March 12, 1958. - - At a time not definitely fixed by- the record, but sometime in January or early February 1958, Respondent unilaterally promulgated a rule prohibiting its employees from smoking on the job. This was a complete departure from its continuing prior practice at Harvard and going back to the time its plant was located in Chicago during which entire period the men were allowed to smoke on the job. When the new rule was imposed, the employees began going to the locker room for their smokes. - - On February - 25, Respondent's assistant superintendent, Sidney - Young, told employee Edward O. Fraase that too-many employees had been going into the locker room to smoke, and that Respondent was "going to cut out the smoking and the guys congregating in there for a break." . For that purpose, Young instructed Fraase to install a lock on the locker room door. Fraase began the task assigned to him but before he completed the installation, Superintendent Dease stopped him and told him to wait until Slopa returned to the plant on the following morning. - 2 Unless otherwise mentioned, all references in this report to iSlopa are to George Slopa. 8 Unless otherwise noted, all references to dates herein are to the year 1958 4 No further bargaining sessions were held until on or about March 28. Ehlert's em- ployment with the Union was terminated April 1, but commencing on or about March 10, 1958, negotiations in behalf of the Union were taken over by W E. Corbin, president of the Fox Valley District Council of Carpenters, and by Harold Cheesemen, general repre- sentative of the Brotherhood of Carpenters and Joiners of America, AFL-CIO. 1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD • During the same day, several employees complained to-Hall "that management was installing locks on the locker room doors.:' . When Hall sought out Superintendent Dease and asked if the report was true, Dease answered that it was. Hall complained to Dease that "ever since the Union has been voted in the Company has been taking retaliation moves against the employees by holding up insurance checks, by taking away their smoking privileges without giving them any time or place to smoke," and suggested that the matter be discussed at the "negotiation table." He further notified Dease that the foregoing incidents were causing "a lot of friction between management and labor and everybody [was] getting upset over it." Hall and Dease gave conflicting testimony as to the remainder of the conversation between the two men that, afternoon. Hall testified that he told Dease that because there was already so much friction in the plant that if management insisted "upon locking up those locker room doors, [it] might as well lock the front door." Ac- cording to Dease, Hall "made the remark that if [management] locked that rear washroom door he would call a strike and lock. . . . the Company's front door." 5 On the following morning, February 26, Dease reported his version of the incident as quoted immediately above to Slopa. The latter decided to immediately have a meeting of all the employees. After the men were gathered in the center of the plant, Slopa asked Hall, who was standing 3 to 5 feet away, if he had told Dease _ that if a lock were placed on the locker room door he would lock the front door. Hall denied the accusation and, according to Slopa, stated that he had told Dease that if Respondent "put a lock on the back door that they would have a meeting and lock the front door." Slopa turned to Dease and asked him whether that was what Hall had said. Dease answered that it was not, and added that Hall had threatened "that they would lock the front door." When Slopa again asked Hall whether that was what he said, the latter turned away from Slopa, threw up his hands, and said: "Oh, what the - 6 is the difference." Notwithstanding that Slopa apparently attributed great significance to the variance between the versions offered by Hall and Dease as to the exact words used by Hall on the previous day, I find it unnecessary to resolve that conflict. Under either version, it is clear that a strike was threatened by Hall if Respondent placed a lock on the washroom door. Slopa immediately told Hall , he was fired , instructed him to get his tools, and added that "any other Hall followers that want to go with him [would have their] checks ready at the door when [they] leave." The'bargaining session between the parties set for the same afternoon was can- celed when Ehlert discovered that Hall had been fired. When Ehlert informed Respondent's representatives that he would not continue negotiations without the presence of Hall, the Union's president and a member of its negotiating committee, one of Respondent's representatives said: "To hell with him; we will let Dave Adams be the president . [Hall] is the trouble-maker anyway." Ehlert demanded Hall's reinstatement and informed management that unless it did so a strike would ensue. Respondent remained adamant and refused Hall's reinstatement . At a meeting held the same evening, the Union voted a strike in protest of Hall's discharge. The strike was imposed the next morning and continued until March 10 when the strikers returned to work. Negotiation sessions between the parties were held on or about , May 7, 13, and 26, July 29, August 20, September 26, and October 17 and 19. A brief summary of these events appears in the concluding findings that follow. For present purposes it is sufficient to note that no agreement was reached on the most important items universally contained in a meaningful collective-bargaining agreement between an employer and the collective -bargaining agent of his employees. In the meantime , on June 4, Corbin , on behalf of the Union , filed an amended charge in Case No. 13-CA-2753, alleging Respondent had failed and refused to bargain with the Union . During that month, Corbin attempted to schedule meetings with Respondent but was unable to do so. His efforts to meet with Respondent on July 22 also being unsuccessful , he called a meeting of the Union for July 22 to apprise the membership of the status of the negotiations . At that meeting , Corbin reported that Respondent 'continued to refuse reinstatement to Hall , and also reported the failure to reach agreement on wages, seniority, and grievance procedure. The membership thereupon voted to go on strike again. 6 For reasons hereafter stated ,' I find , It unnecessary to resolve this conflict. 6 The four-letter word for the use of which, among other reasons , the Postmaster General unsuccessfully sought to bar "Lady Chatterley ' s Lover" from the United States mails. BUTCHER BOY REFRIGERATOR DOOR COMPANY 1369 Corbin advised Slopa during the following morning of the Union's action and intent to proceed with the strike unless negotiations were resumed . Slopa stated he was unable to meet before. July 29. Though the strike had been scheduled to commence before July 29, it was not invoked as planned, and the parties met on July 29. Very little, if anything, toward bringing the parties together resulted at that meeting. . At a meeting of the Union that evening, the membership again discussed the Hall discharge, the status of the negotiations, and Slopa's offer of a 3-cent wage increase conditioned upon a withdrawal of the unfair labor practice charge involving Hall's discharge. The membership again voted to go on strike and the action was imposed on August 4. While the strike was pending, which I hereafter find to be an unfair labor practice strike, Respondent hired replacements for the strikers. On December 18, 18 named striking employees, acting through Corbin, offered to unconditionally return to work on the following Monday, December 22. The names of eight additional strikers who desired reinstatement and whose names were omitted from the list aforementioned were transmitted shortly thereafter to Respondent by Hall by his letter dated December 18. A large group of these strikers reported for work at the plant on the morning of December 22. All were refused reinstatement with Slopa adding: "No contract, no work." The parties met for another bargaining' conference in the office of the United States Mediation Service in Chicago on February 18, 1959. Principal spokesmen at this meeting were Francis Hickey, who then appeared as counsel for Respondent,7 and Bernard Mamet, attorney for the Union. Mamet demanded the reinstatement of strikers not yet returned to work and Hickey replied that Respondent had hired replacements and did not "intend to let those go." There was apparent agreement that vacations, holidays, and insurance "would continue as is." The testimony of Hickey and Mamet was in agreement that the wage rates offered by Respondent was to commence at $1.75 an hour and that production helpers were to begin at $1.70 an hour. The proposal also included periodic increases for each classification. When Corbin protested that the proposed rates represented a decrease instead of an increase, Mamet asked that Hickey furnish him with certain wage information so that the Union "could properly interpret the offer." There is a conflict in the testimony given by Mamet and Hickey, hereafter discussed, as to the extent of the information Hickey promised Mamet he.would furnish, but none with respect to Mamet's credited testimony that Hickey was to let him know, after supplying the wage information, when the parties would meet again. On April 10, 1959, Hickey wrote Mamet as follows: This is to advise that the wage rates for, the designated classifications are now in effect at the Butcher Boy Refrigerator Door Co. as follows: Mechanics___________________________ $1.80 to 2.10 Production-Production Helpers ---------- 1 65 to 1.90 Trainees and Apprentices--------------- 1.45 to 1.185 Laborers----------------------------- 1.35 to 1.65 Lead Men---------------------------- Plus 15¢ per hour over high- est paid employees in each of the above categories Effective as of this date, wage increases are being given to employees in the various classifications. There have been no general rate increases given since 1956, and in spite of the fact that we are in collective bargaining negotiations and we have an. apparent impasse on the question of the union shop, the company feels that these wage increases can no longer be delayed. If you have any questions with reference to the above described matters, please advise. Very truly yours FRANCis HICKEY. No further bargaining negotiations have been conducted by the parties. B. Concluding findings 1. Violations of Section 8 (a) (1) of the Act Sometime in January 1958 , shortly after the election won by the Union , Respond- ent unilaterally imposed a prohibition against smoking by its employees while engaged 7 !Prior to this meeting , Attorney Libit had attended a number of negotiation meetings as counsel for Respondent. 1370 DECISIONS OF NATIONAL. LABOR, RELATIONS BOARD in their work . For more than 10 years prior thereto , the employees had enjoyed that privilege . Indeed, Respondent supplied some of them with receptacles for the deposit of ashes and butts. For the remainder of the men , it was the custom to deposit the butts in trash cans or to stamp them out on the floor of the factory . Following so closely on the heels of the election , and failing to negotiate thereon with the Union, the inference is reasonably drawn that the imposition of the prohibition was an early indication by Respondent of its displeasure over the organization of its employees , and to demonstrate to them that their victory in the election would ,be met with reprisals . No credible evidence was offered to show any justification for the withdrawal of a privilege so long enjoyed by the employees .8 Under the circumstances existing here, I conclude that by unilaterally imposing the no-smoking rule while the men were at work, and by subsequently threatening to put a lock on the locker room door , Respondent restrained and coerced its employees in violation of Section 8(a)(1) of the Act. Reliance Clay Products Company,- 115 NLRB 1736; Winter Garden Citrus Products Cooperative , 114 NLRB 1048 ; Thoma- son Plywood Corporation ,!109 NLRB 898. 1 For the same reasons just indicated above, I arrive at the same conclusion with respect to the withholding , until on or about March 12, 1958,,of the insurance check which Blank was entitled to receive long before that time . Slopa admitted that he received the check from the insurance company in December 1957 or January 1958, and did not deny Blank's testimony that when the latter made a demand for the check in January 1958 Slopa told him that he would not surrender the check "until this union affair was settled ." Nor did he deny Hall's testimony that when the latter, who was then the president of the Union , interceded ' and demanded that - Blank be given his check that Hall was told that he would surrender the check only if Hall would return to the employees the money he, allegedly "hi-jacked out of them to join the Union." - Slopa further admitted that Blank's "check was being held so that [Respondent ] could get some kind of an agreement or conclusion or find out why these things were going on in the plant ." By withholding Blank's- check under the circumstances detailed herein , I find that Respondent violated Section 8(a) (1) of the Act. 2. The discharge of Hall Hall's discharge being admitted , there remains for consideration only the question whether he was discharged , for, his union activities or for those ascribed by Respondent . To sustain the General Counsel's position , it must first be established that Respondent had knowledge of Hall 's union activities prior to his discharge. Slopa admitted that he 'observed Hall "distributing literature in September or October, 60 to 90 days prior to the election. " - Superintendent Dease testified that commencing in October 1957 and continuing on into 1958 he saw Hall "in different departments with a group of employees , talking; . after the first of 1958 [he] could kind of guess what was going on; . [he then ] knew that it was more or less union activities being carried on throughout the working hours . and he knew Hall was active in the union ." And when Dease was directly asked whether Hall was the most active member of the Union he entered no denial, but answered : "Well, he did the most running around in the shop." Nor is there any doubt in my mind that Slopa himself was well aware of Hall's leading role in the Union .' His willingness to discuss with Hall the withholding of Blank 's insurance check, and his suggestion to Hall as to how that matter could be disposed of, compels the conclusion that he was fully aware of Hall's active status in the Union . - If Slopa was then unaware , as he claimed to be, that Hall was the president of the Union , he was certainly apprised of that fact on the morning just prior to Hall's discharge when Superintendent Dease reported that Hall had threatened that he, Hall , "would call a strike and lock ... ,the Company 's front door." That Slopa knew that Hall was a leader in the union movement is also indicated by Slopa's remark immediately after discharging Hall that if there were "any other Hall followers," their checks would be immediately prepared for them. Turning now to the reason for Hall 's discharge , Slopa testified that early in the morning of February 26 Dease told him of Hall's threat to close the plant if a lock was placed on the door to the washroom following which Slopa called a management conference . According to•Slopa's own testimony , "the subject matter of that con- ference was Hall, Hall's conduct, and the way Hall had been carrying on the past 9 Dease's vague testimony= as to the time and the- seriousness of a "file" in a' waste bucket did not impress me as being a trustworthy explanation for the change in working rules -Following the strike of August 4, Respondent permitted nonstrikers and new hires to smoke in the plant. - BUTCHER BOY.REFRIGERATOR DOOR COMPANY 1371 •2 or 3 months ." . Slopa immediately 'assembled all- the employees in the center of the plant at which time,the events and the exchange-between Slopa , Hall, and . Dease, heretofore detailed, took place and pursuant to which Hall ,,-was immediately discharged . '- 1 • , ' Slopa testified that Hall was fired for a number of reasons hereafter considered, but when asked to give a specific reason he answered : "The specific reason is . insubordination . in the conference" with all the employees on.February 26. Superintendent Dease also testified . that Hall was discharged "for being insubordinate .to the , president of the Company on the morning of the ,[26th]." And Attorney Hickey testified that at the bargaining conference of February 18, 1959,' when the question of Hall 's reinstatement was again discussed , he stated that Hall would -not be reinstated "because of insubordination on February • 26,, 1958." : - Respondent 's brief, however, does not make it clear whether this " insubordination" was Hall 's statement of. what would happen if Respondent placed a lock on the washroom door, or whether it was his use of the indelicate exclamation heretofore reported. I conclude that it was not , and could not be, the former because Hall's statement as to what would happen if Respondent went ahead with its plan was not only invited by Slopa but . concerned itself with a grievance ' which 'Hall had pre- viously, and within his legal rights, presented to management . In the pursuance of that grievance ,. a concerted activity protected by the Act , Hall was within his rights in predicting that - the strike would ensue unless Respondent receded from its announced intention. Turning now to the contention that it was Hall 's use of "profane" language that brought about his discharge I find that the four-letter word used by Hall was not directed to Slopa. Instead , on the entire record, I find that Hall's exclamation, "Oh, what the -," was uttered by Hall in the direction of the employees gathered in front of Slopa and after Hall had turned away from , and with his back to, Slopa. I further find that it was uttered by him merely to give voice to his sense of frustration and to express the utter futility of further discussing the employees ' grievance with Slopa. There remains for consideration the question of whether the use of the four-letter word uttered in the manner and under the circumstances found above constitutes "insubordination" or "profanity" as claimed by Respondent' sufficient to justify his discharge . We are not here concerned W ith a living room or parlor discussion of politics or other subject having no immediate impact on the listeners, and in the presence of ladies. The incident arose in the shop, in -an extremely tense atmosphere, and was heard by an audience of men, carpenters , metal workers , and machinists, most of whom I am certain, if not all, have frequently invoked the same expression to express a sense, of frustration or futility . Slopa himself did not impress me as a man who would recoil from the use of the word if he had heard it in a club or locker room Hall's conduct on the day in question - cannot be considered in isolation but must be considered in light of the circumstances then existing . He had only a short time before been sharply rebuffed by Slopa in his attempt to obtain from Blank the insurance check that Slopa admitted was in his possession . He was also aware that only a short time before Respondent had unilaterally revoked the employees ' smoking privilege of more than 10 years' standing , and that on the day before , had again threatened , unilaterally ,, to take away that privilege . And finally, as president of the Union, Hall must have been aware that though more than 2.months had elapsed -since the Union was elected , bargaining representative , no substantial progress had been made in the bargaining negotiations . It is against this background of frustration that Hall put an end to the futile battle in semantics in which Slopa sought to engage him. "If an employer were free to discharge an- individual employee because he resented a statement made by that employee during a . . . conference . [on a grievance], either . one of two undesirable results , would follow : collective • bargaining would cease to be between equals (an employee having no parallel method of retaliation), or employees would hesitate ever to participate personally in negotiations. . [I] do not hold , of course , that an employee may never be lawfully discharged because of what he says or does in the course of a . . . conference [ concerning a grievance]. A line exists beyond which an employee may not with impunity go, but that line must .be drawn `between cases where employees engaged. in concerted activities exceed the bounds of lawful conduct in' ,a moment of animal - exuberance `(Milk Wagon ,Drivers ..Union v. Meadowmoor Dairies, Inc, 312 U.S. 287, 293) or in a manner not activated by improper motives, and those flagrant cases in which the misconduct-is so violent or-of such serious , character, as.to render the employee unfit for further service.' , [ I]. find' that [Hall's], conduct, -however regrettable , falls into , the, former 1372 DECISIONS ""OR NATIONAL LABOR RELATIONS BOARD rather than the latter category, and was not so extreme as to furnish justification for his discharge for engaging in concerted activities." The Bettcher Manufacturing Corporation, 76,NLRB 526. Nor am I convinced that any of the other five reasons advanced in Respondent's brief as the cause for Hall's 'discharge were the true reason's for that termination. Thus, the "drunkenness" referred to occurred in the plant on the day before Christmas in 1956 or 1957 when Hall was not scheduled to be at work. The second reason assigned by Respondent is Hall's "leaving his department and walking around the plant." Slopa, however, testified that "the walking around had nothing to do with Hall's firing." The third, fourth, and fifth reasons now assigned were supported only by the testimony of Edmond Krawczuk, a witness called by Respondent. Thus, Krawczuk testified that he allegedly "overheard" Hall telling an assistant super- intendent that he would perform a job when he "was good and ready"; that he once observed Hall reading a magazine; and that on February 26, when Dease told Hall that there were too many' people in the locker room, Hall asked him what he "want[ed] to do about it." There is no evidence, however, that Slopa was ever apprised of the first two of these last three incidents and I cannot assume he knew about them or that they played any part in his decision to discharge Hall. The fifth alleged act of "insubordination". now belatedly relied on was also disclosed only by the testimony of Krawczuk. Dease, to whom the remark was allegedly addressed, apparently did not think it was made in an offensive or insubordinate manner for he made no reference to it when he testified concerning his conversation with Hall on that day nor in his narrative of the incident to Slopa on the following morning. And, in appraising the effect of these incidents, it must be remembered that in the course of his steady employment by Respondent since 1952 Hall received a number of merit increases, was promoted to leadman in his sheet metal department, and in November 1957 was offered the supervision of the machine shop at a salary increase of $10 per week. On the entire record I find that Hall was not fired on February 26 for the manner in which he expressed himself on that day or for the other reasons now assigned by Respondent. Instead, I find that he was discharged by Slopa in a moment of pique because of his active union activities, because he was a "troublemaker," and because he had dared to threaten a strike if Respondent went ahead with its announced plan to lock the washroom door. I further find that Slopa assembled all the employees on that day to demonstrate to them that resistance to his unilaterally imposed working rules and conditions would be met with devastating reprisals. By discharging Hall for his conduct on February 26, Respondent coerced and restrained its employees in the exercise of rights guaranteed by the Act and discriminated against Hall because of his union or concerted activities, all in violation of Secton 8(a) (1) and (3) of the Act. 3. The bargaining negotiations and the violations of Section 8(a) (5) of the Act At the scheduled meeting of the parties during the afternoon of February 26, the only matter discussed was Hall's discharge earlier that day. Ehlert protested that action most vigorously but his demand for Hall's reinstatement was denied. The strike in protest of Hall's discharge which commenced the following morning con- tinued until March 10 when the strikers returned to work. Ehlert, together with Harold Cheesemen, a representative of the International Union, met with representatives of Respondent on March 28. Though there was a discussion of the terms of the proposed contract, no agreement on any substantial matter was reached due to the absence of Slopa. - The parties met next on May 7 at the United States Mediation Service in Chicago, with Commissioner Luchs presiding. Corbin demanded Hall's reinstatement and after a lengthy discussion Slopa agreed that he, together with Libit, Respondent's attorney at the time, and Luchs, would "work out something to bring about" Hall's reinstatement. The parties next discussed the right of the employees' committee to participate in the negotiations, a privilege previously denied them except on a brief occasion when they were called in for approximately 15 minutes to get their views on one specific issue. Though the employees' committee consisted of five members, Slopa agreed that thereafter two employees might be in attendance. The union-security clause of the Union's proposal was discussed and Slopa stated "that he had made a promise to four or five of the people in this plant that he would never sign a union shop contract and that they would never have to become members of the Union." Seniority, grievance procedure, and wages were discussed but no agreement was reached thereon. The parties met next at Respondent's offices on May 13. George Slopes was not present and- Respondent was represented only by Attorney Libit, Robert Slopa, and BUTCHER BOY . REFRIGERATOR -.DOORXOMPANY 1373- Willig . Corbin inquired whether they , had authority to negotiate for Respondent and was assured that they had such authority . Corbin inquired whether Respondent had yet worked out "any basis" on which Hall could - be returned to work and received a negative reply. ,The negotiators reached agreement on seniority and grievance' procedure . With respect to the latter subject , it-was agreed that there would be "equal representation on both sides [and ] in the event there was an impasse that some third party . a governmental agency, . some neutral person in Harvard , . some third party would be qualified to arbitrate the grievance." Corbin handed Libit a copy of the provision - on seniority and grievance,procedure contained in a contract which the Union had with the McKee Door Company of Aurora, Illinois, and it was agreed that Libit was to prepare a draft copy covering the subject -as agreed upon. . • The parties met again on May 26 . As ,the meeting opened , Corbin again asked whether an agreement had been worked out concerning Hall and was informed that nothing had been done . Corbin next asked Libit whether "he had completed the draft of the seniority and grievance procedure ' that [ they] had tentatively agreed on at the previous" meeting." Slopa, apparently not having been apprised of what his committee had done at the previous meeting, asked : "What's that?" Libit undertook a reply and "began to explain ,to hipi • how his seniority and grievance procedure would be set up and [what they ] had agreed upon ." Slopa rejected Libit's report and the previous agreement to have a "neutral " third party , stating: "Oh , no, nothing doing.- I am going to run my plant, nobody is going to tell me how to settle a grievance in my plant." A lengthy discussion followed at the beginning of which- Slopa proposed that grievances be handled by two representatives of the Union and two representatives of management , -himself and one other officer of the Company. Corbin noted that such'a proposal might prolong the negotiations on a grievance "forever . . . and that there would be no machinery whatsoever . . '. to bring it to a conclusion." Being unable to' get Slopa to agree to the appointment of a neutral person as the fifth member of the grievance committee, Corbin finally nominated Libit, Respondent's attorney , "as the third party." Slopa rejected the. proposal. - Commissioner Luchs ordered a recess during which the two members of the em- ployees' committee informed Corbin -that they had great faith in Slopa 's father, who was then retired , and that they would be willing to accept him as the neutral arbiter. When the meeting resumed , Corbin made the offer . the employees ' committee had authorized him' to make . Slopa agreed , on condition , however, that if the elder Slopa became "sick or something of that sort," that Willig , Respondent 's secretary and then acting as one of Respondent 's negotiators , "be the third person." Corbin stated that he did not refuse the condition imposed by Slopa but added that if they "could resolve some of the [other ] problems, '•that perhaps [he] could go along with that even though [ he] realized that again [they would have] an official of the Com- pany as the third party." - The parties then turned to -the Union 's proposal for •a union-security clause and Slopa repeated the promise he had made his employees that they would never have to join the Union , "that he had given them his word " Corbin ,then agreed to modify the Union 's request so as to provide that employees who were then members of the Union "would remain members; that those who were not members of the Union at [that ] time would not-[be required to] join the Union ; and that new employees . . would become members . after the 31st day" of employment . At this point, Slopa "got very mad, jumped up" and, turning to his brother , Robert , and to Willig, said : "See, I told you; these guys all have a pattern. They agree on one ,thing and then they gralb you for something else." The argument becoming -̀-`very heated ," Commissioner Luchs ordered a recess and asked the union representatives to go-out into an adjoining hallway. Shortly thereafter he joined the group * and informed them that he did not think there was any use continuing the meeting because "everybody was mad and maybe [they ] had better let it - cool off fora little." No date for a future meeting was agreed upon. At some point during the conference of May 26 ; while discussing wages , Slopa offered an in- crease of 3 cents an hour if the Union would "drop the Hall case" which had been one of the subjects of the unfair labor practice filed by the Union against. Respondent on the previous May 6. " Corbin contacted Commissioner Luchs six - to eight times thereafter endeavoring to set a date for a further negotiation meeting. Being unable to get such a confer- ence for as late as July- 22, Corbin decided to call a meeting of Respondent's employees ,for that evening to give them a full report of what had transpired in the negotiations , up to that time. At that meeting , Corbin "reported on • the Hall case; . . . that [they] had-been promised some basis to bring about Hall's rein- statement and that [they] had not received it. He also reported on the prior 1374 DECISIONS- OFNATIONAL' LABOR RELATIONS. BOARD negotiations pertaining to-seniority and grievance procedure . -A motion was made and-adopted to go on strike unless Respondent agreed to resume negotiations. Corbin called Slopa during the following -morning- and told him of the action taken. by the Union . Slopa stated he could not meet before July 29 . and Corbin agreed to-meet on that date . The parties met as scheduled and Corbin informed Respondent of the reasons = the men had voted to go on strike-the failure to bring about Hall's reinstatement ; the failure to agree on seniority and grievance procedure, that the Union "could reasonably accept;. .. that things were transpiring within , the plant that [they] were afraid of." During the discussion that ensued , Slopa warned that he would "close the plant down . . . until the negotiations [were] over." Libit interfered and "pointed out to -him the seriousness of locking the employees - out, and what could happen if he did it ." A discussion of seniority and grievance procedure followed without result, Slopa ,"insisting that Mr . Willig would be the third person in there." - - , At a meeting of the Union that evening , attended more heavily than the meeting of July 22, Corbin recounted "all-of the things" covered at the union meeting the week, before , including Hall's discharge . By secret ballot, and by 'a heavier ma- jority than prevailed at the earlier meeting, the Union voted again to strike the plant and the action was made effective on August 4. , The facts heretofore found compel the conclusion that by much of its conduct during the negotiations Respondent violated Section 8(a)(5) of the Act. Thus, when, during the early bargaining conferences , Respondent refused to allow the accredited employees ' committee to participate in the negotiations it denied them a right 'guaranteed by the , Act. "For the employers , in the absence , of exceptional circumstances which do not appear here , to have a right of choice either affirma- tively or negatively as to any of those who are to sit on the opposite table from him would defeat and nullify the law." N.L,.R.B. v. Roscoe Skipper, Inc., 213 F. 2d 793 (C.A. 5). It will also be recalled that Respondent conditioned its offer of a 3-cent increase in the hourly wage of its employees upon a withdrawal of the unfair labor practice charge involving Hall's discharge . "It is well settled that an employer does not perform his bargaining obligations - by making , such demands as one of the terms for agreement ." White's Uvalde Mines, 117 NLRB 1128 ; N.L.R.B. v. E. A. Taormina et al., d/b/a Taormina Co., 207 F. 2d 251, 254 (C.A. 5); Hartsell Mills Company v. N.L R.B., 111 F. 2d 291 (C.A. -4). Respondent further failed in its duty under the Act to bargain in good faith with the. Union when Slopa, on May 26, rescinded the agreement reached . between the parties on , May 13 that a "neutral" person be the "third" party - in. the disposition . of grievances. Respondent also violated the Act by Slopa's threat on July 29, during the course of bargaining negotiations , to close -the plant on the following Friday. The parties had failed up to that time to reach any substantial agreement and, Respondent having presented no other,-valid reason for its threat, I can only conclude that it ''resorted to such action to force the , Union and the employees to abandon their, contract demands and accede to Respondent 's." Quaker State Oil Refining Corpora- tion, 121 NLRB 334. - - - - - It'is conceded that on April 10, 1959, Respondent unilaterally increased the wages of all its employees . In its brief , Respondent argues that its conduct was justified because. of an alleged impasse in the negotiations in that the "union was,adamant and" would never have agreed to sign a contract without a union-shop clause." Though an area of nonagreement existed - between the parties at their last meeting prior to Respondent 's unilateral action, I accord,no merit to Respondent 's defense that an impasse had-occurred in the course ';of' the negotiations which ,left it free to embark on its program of unilateral action. Atithe earliest* meeting; of theeparties the Union demanded a union-security clause which would , require all , employees to become members thereof within • 30 days of -their employment . -Upon, Slopa's vehement insistance that he. would grant no union security of any type because he had promised a number of men-then employed ,by, Respondent that they would never have - to join a union , the Union modified its request. The last concession made by the Union was .to ,exenipt all employees who were not then members of the Union from any obligation to become members of that organization . The subject was discussed at later meetings , including the-last meeting •on February 18, 1959, when , according . to Hickey 's,own testimony,- Re- spondent "offered the check-off to deduct the dues of members," a concession which .it had not granted at earlier meetings . , In that state of-the ,.record, it -can be hardly said that further negotiations would, be fruitless and that -Respondent could, therefore, take unilateral action -ini another field. - ; , BUTCHER BOY REFRIGERATOR DOOR 'COMPANY 1375 In any event , it is undisputed that at the last meeting between the parties on February 18, 1959, Respondent agreed to supply certain wage information to Mamet and to meet again with the Union: Significant also'is Hickey's oral testimony, and his letter of April 10, •1959, to Mamet, in both of which he stated that these increases were given while the parties were still engaged "in collective bargaining negotia- tions " By the unilateral - action - described above, Respondent -violated Section 8(a)(5) of the Act.. I also find that Respondent violated the same section of the Act by refusing to furnish the Union with wage information requested by Mamet on February 18, 1959. This information was necessary to enable the parties to carry on intelligent negotia- tions with regard to wages, and which negotiations the parties agreed to resume after the information was supplied by Hickey. The testimony of Mamet and Hickey pertaining to what wage information Hickey promised to supply on February 18, 1959, is in conflict . Mamet testified that he requested , and that Hickey agreed to supply, the following information regarding each individual employee: Hinng date, years of service , classification , present rate of pay, and proposed rate of pay . Hickey did not deny that Mamet requested the above information , but testified further that he agreed to supply only the classifica- tions , and the rates applicable to those classifications , which information he subse- quently supplied to Mamet. Udder either version, however , the record establishes, and I find, that the ' Union demanded and that Respondent refused to furnish the Union with the remainder of the information demanded by Mamet. It was Hickey's position that it was not "incumbent upon the employer to give the - names of every employee since the Union obviously could 'ascertain that information, . . the hiring date, . . . and also possibly might know the rates " paid various employees. This was a mistaken view of the law. ' It is now well established that the Act imposes a duty on the employer to provide a bargaining agent with wage data of the type requested by Mamet and declined by H ickey. Pine Industrial Relations Committee , Inc., et al., 118 NLRB 1055. By its failure to provide such informa- tion, Respondent violated Section 8(a)(5) and ( 1) of the Act. 4. The refusal to reinstate the strikers The findings heretofore entered clearly establish that Respondent had been guilty of- a substantial number of unfair labor practices on and before July 29 when the Union voted to go on strike . Most, if not all,, of these practices had been reported to the union membership at the meetings on July 22 and 29. It , was only after these unlawful practices'were reported to the employees that The strike vote was taken , a fact which was communicated-to Slopa on July 23 and 29. Though it may be true that the failure to reach total agreement on a contract was-also considered, that factor does not compel a finding that the strike was, therefore , purely economic in character . On the entire record, I am convinced and find that the strike which commenced on August 4 was an unfair labor practice stnke, "even though other reasons were also present ." N L.R.B. v. West 'Coast Casket Company, Inc., 205 F.•2d 902 (C.A.,9) - Having found that the strike under consideration was-an unfair labor practice strike , it follows that the strikers were entitled to reinstatement to their jobs upon their unconditional offer to return to work ^ even though Respondent , during the strike, had hired replacements for them. Respondent , in its answer , admits that it received such an offer from all the strikers.9 Dease testified that Respondent had approximately the same number of production and maintenance workers around Christmas 1958 as it had when the strike began on the preceding August 4. No claim was made by Slopa at the time the striking employees reported for work at the plant on December 22 that the reason they would not be returned to-work was other than what he told them: "No contract, no work." The only reason advanced in Respondent 's brief for its refusal to accede to the request of the striking employees is that they were economic strikers, and that Respondent was therefore ,not required to discharge the replacements hired during the -strike . That characterization of the strike has heretofore been rejected . It is , therefore , found that by'reason of its refusal to reinstate "the striking employees after they had notified. Respondent they had abandoned the. strike and had unconditionally offered to, return to work, Respondent violated ,Section 8 ( a) (3) and ( 1) of the Act. 0Toough Respondent's answer alleges, and its correspondence with the strikers and the Union seeks to make it appear, that-the strikers'- offer to return to work were not received by Respondent until on or after January 2, 1959; both Slopa and Willig testified that a letter containing, such an offer, in behalf of 1S named striking employees was handed' personally by Corbin to Slopa on December 18, 1958 '. ' ' 1376 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD Further Findings and Conclusions The complaint in Case No..13-CA-2753 alleges that on or about February 15 Respondent refused to meet and bargain with the Union until the Union signed a no-strike clause. Though the testimony conclusively establishes that Respondent did at or about that time request a 45-day no-strike clause, Ehlert, who was then conducting the negotiations for the Union, testified that when a representative of the mediation service informed Respondent that such 'a request was not "proper procedure," the request was dropped, and it was no longer considered by Ehlert to be a, bar to the continuance of the negotiations. Corbin also testified that after he entered the picture no such demand was made. It will, therefore, be recom- mended that the above allegations of the complaint be dismissed.- The complaint also alleges that on or about July 12, Respondent kept under observation and surveillance the meeting place, meetings, and activities of the Union. In support of that allegation the testimony discloses that at or about that time Dease attended a meeting of the Union for approximately 15 minutes. The record dis- closes, however, that Dease was invited to attend. the meeting by an officer of the Union. Under these circumstances it will be- recommended that the allegation of the complaint referred to immediately above also be dismissed. IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connec- tion with its business operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. - V. THE REMEDY • Having found that Respondent has engaged in and is engaging in certain unfair labor practices, I recommend that it cease and desist therefrom and take certain affirmative action which I find necessary to effectuate the policies of the Act. Though Respondent denied the request of the striking employees to be returned to their jobs when that demand was made by them, the record establishes that at the time of the hearing herein all of the strikers except two, Lester Blazer and Herman Moritz, had either returned to their jobs or had been offered and had declined Respondent's offer of reinstatement. As to the striking employees other than Blazer and Moritz no further offer of reinstatement is, therefore, required. As to Blazer and Moritz, however, and as to Kenneth Hall who was discriminatorily discharged on February 26, it is recommended that Respondent be required to offer each of them immediate and full reinstatement to his-former-or substantially equiv- alent position, without prejudice to his former rights and privileges, dismissing, if necessary in the case of Hall, any persons hired after February 16, 1958, and as to Blazer and Moritz, any person hired after August 4, 1958. It, is further recommended that Respondent make whole all of the employees discriminated against as heretofore found. With" respect to Hall, Blazer, and Moritz, it is recommended that Respondent be required to make each of them whole by the payment to each of a sum of money equal to that which each would normally have earned as wages. from, the, date of discrimination against him to the date of Respondent's offer of reinstatement, less his net earnings during the interim. In the case of Hall, the period shall be computed from February 26, 1958; 10 as to Blazer, from December 22, 1958; and as to Moritz, from January 2, 1959. As to the remaining strikers -named in the footnote,ii it is recommended that Respondent also make them whole by the payment to each of a sum "of money equal to that which each would normally have earned .from the date he uncon- ditionally offered to return to work and the date Respondent offered to make his reinstatement effective. All loss of earnings aforementioned shall be computed in accordance with the formula prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289 (See also Crossett Lumber Company, 8 NLRB 440, 497-498.) The unfair labor practices found, to have been engaged in by Respondent are of such a character and scope that, in order to insure the employees their full rights guaranteed them by the Act, it is recommended that Respondent cease and desist 10 Merchandiser Press, Inc, 115 NLRB 1441 11 David Adams, Glenn Borgo, Laurence Dickerson, William Dixon, Edward Fraase, Arno Grafe, Leo Soucie, Raymond Bailey, Lyle Matthews, C Englebrecht, Edward Groskin- sky, Floyd Groskinsky, John Kramer, Ruben Olson, Rudy Richter, Peter Allegretti, Harold Grashel, Richard Finger, Richard Blank. LOCAL 525, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1377 from in any manner interfering with, restraining , and coercing its employees in their rights guaranteed by the Act. On the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Carpenters Local 2674, United Brotherhood of Carpenters and Joiners of America, AFL-CIO, is a labor organization within the meaning of the Act and admits to membership employees of Respondent. 2. By discriminating in regard to the hire or tenure of employment of Kenneth Hall and its striking employees, thereby discouraging membership in the above Union, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. All production and maintenance employees of Respondent at its Harvard, Illinois, plant, exclusive of office and clerical employees, watchmen, guards, pro- fessional employees, and supervisors as defined in the Act, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 5. On and since December 20, 1957, the above-named Union was and presently is, the exclusive representative of the employees in the above unit for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 6. By conditioning its offer of a wage increase upon the withdrawal of an unfair practice charge, by interfering with the Union's right to designate its representatives at the bargaining table, by threatening to close its plant until bargaining negotiations were completed, by rescinding agreements previously agreed upon, by unilaterally increasing the wages of employees, and by refusing to furnish pertinent wage infor- mation requested by the Union, Respondent violated Section 8(a)(5) of the Act. 7. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. [,Recommendations omitted from publication. ] Local 525, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America and E. A. Weinel. Case No. 14-CD-98. June 20, 1960 DECISION AND DETERMINATION OF DISPUTE This is a proceeding under Section 10 (k) of the Act. On February 10, 1960, E. A.:, Weinel, herein called the Company, filed a charge alleging that Local 525, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, herein called the Respondent, was engaging in unfair labor practices within the meaning of Section 8(b) (4) (D) of the Act. On February 19, 1960, the Regional Director for the Fourteenth Region issued a notice of hearing on the dispute over the Company's assignment of certain work, out of which the alleged unfair labor practices arose. On March 10, 1960, the hearing was held at St. Louis, Missouri, before John W. Noble, Jr., hearing officer; Local 397, International Hod Carriers, Building and Common Laborers Union, AFL-CIO, and Local 520, International Union of Operating Engineers, AFL-CIO, intervened; 127 NLRB No. 158. 560940-61-vol. 127-88 Copy with citationCopy as parenthetical citation