Frick Co.

National Labor Relations Board - Board Decisions

Nov 16, 1966

161 N.L.R.B. 1089 (N.L.R.B. 1966)

FRICK COMPANY 1089
United Papermakers and Paperworkers, AFL-CIO, concerning the issuance of
hunting permits for the use of employees in the appropriate units for hunt-
ing at the Pasture for the hunting season of 1966-67 , and on the subject of
the use of the Pasture for hunting by employees generally.
SOUTHLAND PAPER MILLS, INC.,
Employer.
Dated------------------- By-------------------------------------------(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, Room
8A24, Federal Office Building, 819 Taylor Street, Fort Worth, Texas 76102, Tel-
ephone 334-2941.
Frick Company and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO. Case 6-CA-3379. November 16, 1966
DECISION AND ORDER
On May 12, 1966, Trial Examiner Harry H. Luskin issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of these allegations of the complaint. Thereafter, the Respond-
ent, the General Counsel, and the Charging Union filed exceptions
to the Trial Examiner's Decision and supporting briefs. The Charg-
ing Party filed a reply to Respondent's exceptions while the Respond-
ent filed a reply brief to the brief filed by the General Counsel.'
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, briefs and reply briefs, and the
entire record in this case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
[The Board adopted the Trial Examiner 's Recommended Order.]
2 Respondent has requested oral argument . As the record, the Trial Examiner's Decision,
and the exceptions and briefs adequately set forth the Issues and the positions of the
parties, this request is hereby denied.
161 NLRB No. 99.
264-188-67-vol. 161-70
1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was heard before Trial Examiner Harry H. Kuskin at Cham-
bersburg, Pennsylvania, on January 11, 12, 13, and 14, 1966; it was the outgrowth
of a charge, amended charge, and a second amended charge filed on July 12, Au-
gust 6, and November 12, 1965, respectively, and a complaint, which was there-
after amended at the hearing, issued on November 16, 1965.1 The questions pre-
sented are whether Frick Company, herein callea Respondent,2 has (1) violated
Section 8(a)(5) and (1) of the Act by refusing to bargain collectively in good
faith with International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, herein called the Union; (2) violated
Section 8(a)(3) and (1) of the Act by discharging and/or removing employees,
who were engaging in a strike called by the Union, from its payroll and by re-
fusing to pay vacation pay to employees who were so engaged; and (3) violated
Section 8(a)(1) of the Act by promises of benefit and threats of reprisal to strik-
ing employees and by surveillance of its employees engaged in soliciting strike
funds at plant gates of other companies on behalf of the Union. Respondent
admits the status of the Union as a labor organization, that the production and
maintenance unit at its Waynesboro plant, as alleged in the complaint, is appro-
priate, that a majority of its employees in such unit had, as of April 1, designated
and selected the Union as their bargaining representative, that it is engaged in
commerce within the Act's meaning, that the individuals named in paragraph 5
of the complaint, as amended, are supervisors and agents of Respondent, and that
it engaged in photographing its employees who were soliciting strike funds at the
gates of plants of other companies; however, it denies that it engaged in any unfair
labor practices and contends that the Union rather than Respondent has refused
to bargain in good faith.
Upon the entire record,3 including my observation of the witnesses, and after
due consideration of the briefs of the General Counsel, Respondent, and the
Union, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
The complaint alleges, and Respondent admits, that Respondent has its principal
office in Claymont, Delaware, and is engaged in the manufacture of refrigeration
equipment; 4 and further that during the 12 months preceding November 1, it
received directly from outside Pennsylvania, for use in its Waynesboro plant, goods
and materials valued in excess of $50,000, and also shipped directly outside Penn-
sylvania from this plant goods valued in excess of $50,000.
I find, upon the foregoing, that Respondent is engaged in commerce within the
meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent also admits, and I find, that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Some background facts
The Union's first approach to Respondent with a demand for recognition as
the collective-bargaining representative of its employees occurred on March 31.
It was staged dramatically and in precipitate fashion by the Union. According to
1 Unless otherwise indicated, all dates mentioned hereinafter are In 1965.
2 The name of Respondent appears In the caption, as amended at the hearing
8As corrected (1) by my order correcting transcript dated April 5, 1966, with modifica-
tions thereof In accordance with the General Counsel's motion dated April 7, 1966, which
I grant; (2) by the joint motion to correct transcript dated February 10, 1966, and signed
by counsel for all parties, which I grant ; and (3) by the motion to correct transcript dated
February 16, 1966, filed jointly by the General Counsel and counsel for the Union, to which
no formal opposition has been filed by counsel for Respondent, which I also grant.
* It appears that Respondent also manufactures air-conditioning equipment and forest
and farm machinery.
FRICK COMPANY 1091
the testimony of B. W . Bothe , assistant director of the Union's Eighth Region, "it
had been determined . . . that a demand for recognition would be made on the
Company on the 31st 5 and in connection with this demand it was planned that
the employees would leave the plant during their lunch period and engage in a
demonstration outside of the plant . [He] arrived at the plant on the 31st at about
quarter of twelve . There were in the neighborhood of 200 employees gathered
on the sidewalk which runs in front of the plant and another large number, maybe
100, were on the other side of the street . While [he] was in the area , additional
employees came out of the plant. Other employees were arriving by car . Shortly
after noon , [he] would estimate there were about 400 of the plant employees in
the demonstration."
At this point, Bothe and his committee entered the plant . In the group was the
Union's associate general counsel, who acted as spokesman . A meeting ensued with
the executive committee of Respondent consisting of Richard C. Hoff, industl ial
relations director , Thadeus M. Glen, vice president and general manager of the
refrigeration division, and Mr. Aubrey, a director and senior consultant of Respond-
ent. The Union informed the executive committee that it was claiming major-
ity status and offered to submit to a card check; it also pointed out that a look
outside would show that a majority of Respondent 's employees were out in front
of the plant asking for recognition . When Respondent's executive committee indi-
cated a desire to have Lacy I. Rice, company counsel, present , the Union urged
that Rice be reached on the telephone and perhaps this matter of recognition
could be resolved - over the telephone and, if resolved , the demonstration outside
would cease. The executive committee telephoned Rice at his office in Martinsburg,
West Virginia , about 40 miles away , and reported back to the Union that Rice had
said that he could not get to Waynesboro that day, that there were details as to
the composition of the appropriate unit for collective -bargaining purposes which
Rice wished to settle first and that, if there was no doubt of a majority, an agree-
ment could be worked out. The Union replied that it was anxious to finalize recog-
nition then and, if not worked out , the demonstration could be converted into a
strike for recognition "very shortly." At the urging of counsel for the Union, the
executive committee placed . him in telephonic communication with Rice . His effort
to persuade Rice to come to Waynesboro that day ' or to have the terms of the
recognition agreement settled over the telephone proved abortive .6 Whereupon,
after a recess by the union delegation , the Union informed the executive commit-
tee that "the demonstration would be converted into a recognition strike inasmuch
as [Respondent ] was refusing to recognize and bargain with the Union in the
light of its undoubted majority." The executive committee 's response was that Rice
would be available the next morning at,10 o 'clock, but that nothing further could
be accomplished that day.
The union delegation left the meeting and ' a mass meeting of Respondent's
employees was convened on Respondent 's,' King Street parking lot. Picket ,lines
were established at the major plant gates , and entrances . The employees, who
demonstrated during the noon hour , were, at the request of the union delegation,
given permission by Respondent to return to pick up their belongings . It ,appears
that about 25 employees of the approximately 800 employee complement remained
in the plant that afternoon , while the rest stayed out that day. • Pickets, carrying
signs, remained on duty until about 5 : 30 p.m. That afternoon , the Union filed
unfair labor practice charges with the Board 's Regional Office.
The employees were still on strike the following morning when the same union
delegation met with Respondent's executive committee and with Rice , company
counsel . Rice had, in the interim, prepared a form of recognition agreement. Dur-
ing the , meeting, Respondent 's representatives counted, but did not look at the
face of, the union authorization cards, which numbered in excess of a majority
among the production and maintenance employees . Thereafter, the prepared recog-
nition clause was discussed and edited and some changes in the description of
the unit were made . The recognition agreement was thereupon signed . Where-
upon ; the union delegation indicated that the unfair labor practice charges already
on file would be withdrawn 7 and that the recognition strike would be terminated
5 Bothe had no knowledge of any contact with the Company about recognition before
this, and it would appear that there had been no prior contact.
e It would appear that Rice had agreed during the telephone conversation with counsel
for the Union to meet with the union delegation in Waynesboro the following morning at
10 o'clock.
7 It appears that Rice voiced objection to such withdrawal.
1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
immediately. Arrangements were made for the strikers to return starting with the sec-
ond shift that day and the strikers were so advised by the union delegation at a meeting
called by it. Arrangements were also made for the' commencement of bargaining
on Monday, April 5.
There is testimony by Bothe that Rice opened the April 1 meeting by saying
that Respondent greatly resents the tactics used by the Union in raising the recog-
nition issue. However, Hoff testified that "to the best of his knowledge" it is com-
pletely false that the first thing that occurred at the meeting was derogatory
remarks about the Union by Rice. I find that Hoff's testimony is not inconsistent
with a finding that Rice expressed resentment over the tactics of the Union dur-
ing the course of this meeting, and I so conclude .8
B. The bargaining sessions and the accompanying events
1. The sessions beginning with April 5 to May 14, inclusive
The bargaining sessions began on April 5, and proceeded on a twice-a-week
basis through May 14. The strike, which occurred on May 17, interrupted this
bargaining routine. Thereafter, there was one bargaining session on July 7, which
was called by the Union; it occurred in between two meetings called by a Federal
mediator, one on May 28 and the other on August 13. More particularly, the par-
ties met before the strike on Mondays and Fridays of each week, except that the
first meeting in May occurred on a Wednesday instead of a Monday. Present for
the Union were International Representative William H. Baker, who was the
Union's chief spokesman at all meetings but the one on May 14, when Bothe
appeared at the bargaining table and assumed the role of chief spokesman; Joseph
Craig, a fellow International representative; and the union committee members
consisting of Smith, Johnson, and Shade. Present for Respondent were Rice, who
acted as spokesman, John Miller, his associate, and the members of the above-
mentioned executive committee. Except for some absences by Aubrey and absences
by Glen from the meetings on May 5, 7, and 10, the representatives of Respondent
were the same at each meeting. When Aubrey was absent, Watts, the secretary of
Respondent corporation, substituted for him and when Glen was absent, George
Frank, the controller of Respondent corporation, acted in his stead.
Testifying in behalf of the Union as to these meetings, in the main, were Baker
as to all except the meeting on May 14, and Bothe as to the meeting on May 14;
and testifying on behalf of Respondent were Hoff and Glen. The account herein-
after of these meetings is a composite of the testimony of all these individuals.
In those instances where there are testimonial differences between Baker or Bothe,
on the one hand, and Hoff and Glen on the other, I have credited the latter two.
I have done so because both Hoff and Glen impressed me with their veracity, more
so than did Baker and Bothe. Craig also testified for the Union on rebuttal and
I have credited Hoff and Glen over him as I was more impressed with the testi-
mony of Hoff and Glen 9 than that of Craig. -
8 That the circumstances leading up to recognition were deemed an irritant in the bargain-
ing picture by Rice is suggested by Hoff's testimony in respect to the time when Rice
recapitulated to Federal Mediator Harry Young the course which bargaining had taken
According'to Hoff, Rice then explained "the Company's position with some repeating of
the history that led up to the strike and the negotiations."
8 Exception was taken by Respondent to my ruling of not allowing Glen to use type-
written material prepared from Hoff's notes of the negotiation meetings, as edited and
supplemented by Hoff, it being.shown that a copy of the typewritten material was read
over and checked for accuracy by Glen on the,day the notes were taken or on the next day.
The issue arose in connection with the following question by Rice, Respondent's counsel:
"Who was present at the, [April.lst] meeting if you remember?," and.the answer of Glen
as follows: "I can't remember these, Air: Rice, quite as accurately as Mr. Hoff. I heard
Mr. Hoff's testimony and in general I am in agreement with the details of all the people
were present at meetings and times and so ,forth." As I have credited Hoff as to such
details, the issue raised by Respondent's exception has,thereby been mooted. Insofar as
Respondent appears to suggest that my ruling had broader implications in precluding the
use of such notes in connection with testimony by Glen on the substance of the negotia-
tion meetings, it was not shown at this time or'at any other time during Glen's testimony
that his memory needed refreshing as to the content of these meetings and thus no
predicate was laid for such use of the typewritten notes. Moreover, Glen testified in con-
siderable detail as to all matters involved during these negotiations thereby demonstrat-
ing that his recollection was good. Furthermore, I have found Glen's testimony to be
corroborative of that of witness Hoff in such respects and have credited it.
FRICK COMPANY 1093
At the first meeting the Union presented a form of written contract containing
some 31 provisions in all , some provisions being set forth in skeletal form and
to be supplemented thereafter ; it also made an oral request for present company
practices , fringe benefits , and other like information . Pursuant to Respondent's
suggestion , this request for information was followed by a letter to the same effect
from the Union to Respondent , bearing the date of April 6.
The Union's supplementary language on grievance procedure , management
responsibility, strike stoppages and lockouts , union shop, and arbitration was
presented at the next meeting on April 9 . The Union also indicated that addi-
tional provisions on safety and on washup time and a wage proposal would prob-
ably be ready at the next meeting . Respondent , in turn , presented to the Union
some requested data in either oral or written form.
At the next meeting on April 12, the Union presented a cost -of-living proposal
and a wage range proposal which set forth a 10 labor grade structure and a pro-
giession system from minimum to maximum. Respondent, in turn, furnished the
Union with some additional information that the Union had requested.
The next meeting occurred on April 16 . At that time, the Union submitted its
benefit levels on the pension plan proposal, together with draft proposals on
washup time, jury duty, and bereavement pay and a copy of a Blue Cross and
Blue Shield proposal prepared for another corporation , which proposal , it claimed,
was similar to the type of Lehigh Valley Insurance Program expected to be pro-
vided by Respondent . This was also the meeting at which Respondent presented
its counterproposals on the subjects of management responsibility and seniority
and indicated that at the next meeting a detailed explanation of its position con-
cerning the proposals by the Union would be given.
The parties met again on April 19 . The Union then informed Respondent that
it was readying a proposal on an apprentice program and, in connection therewith,
it was requesting that Respondent furnish to the Union the company program
in this area . Respondent , in turn , furnished the Union with data as to job descrip-
tions, labor grades, and base rates in effect at the plant and gave a detailed
explanation of Respondent 's position concerning the Union 's proposals , accepting
some provisionally , suggesting revisions in some, rejecting some, and deferring
on others.
The next meeting took place on April 23. Respondent furnished the Union
requested information as to various types of insurance in effect at the plant and
also a copy of the existing apprenticeship program. Additionally , Respondent pre-
sented its counterproposals as to wages and pensions . There was a discussion
thereof and also of an apprenticeship program and seniority . Rice also summa-
rized the Company's position on the other union proposals . Baker, on behalf of
the Union , indicated that he would present this wage and pension counterproposal,
which he regarded as inadequate , to the membership of the Union on the follow-
ing Tuesday , April 27, but would not recommend approval.
At the ensuing April 26 meeting , no progress was made ; Baker again commented
that he regarded Respondent 's proposals on economic issues inadequate and that
he would not recommend acceptance thereof at the union meeting to be held the
next day.
When the parties reconvened on April 30, Baker reported to Respondent that
the membership of the Union had rejected Respondent 's counterproposals as to
wages and pensions . There followed a discussion of the wage issue in which Baker
urged Respondent to increase its offer on wages as the offer made was not enough.
When the Union was asked what was meant by enough , the response was, "put
your best foot forward "; the 12 cents was "not enough"; and that the Union was
demanding "more money than you have presently offered ." Baker also advised
Respondent's representatives that a form had been submitted by the local of the
Union to "the Detroit office" in order to get strike action approval and that "if
real progress were not made within a week, the Union would advise [Respondent]
when they were going to close down the Frick operation."
At the next session , which took place on May 5, the Union accused Respondent
of going to "the newspaper" with a misrepresentation that the Union 's wage pro-
posal would cost Respondent $ 1 per hour; it added that such matters should be
confined to the bargaining table. The Union submitted a single copy of an appren-
ticeship proposal and there was some discussion thereon . There was also a review
of the Union 's other proposals and Repondent 's counterproposals , with the Union
reminding Respondent that strike procedure was in process and "if the Company
didn't show a realistic position at the bargaining table that a strike was imminent."
The Union stated its views on the proposals and counterproposals and, in effect,
1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reasserted its position that it was flexible on wages and pensions , that Respondent's
offer was not enough and that Respondent should "put [its] best foot forward."
Respondent, for its part, indicated no change in its position, which was given
at the meeting of April 23, except that if the parties could agree on its wage
package of 12 cents for wages and 5 cents for pensions , the wage offer being in
conformity with the area wage pattern, it might add $500 to the existing employee
life insurance coverage.
The next meeting occurred on May 7. The main topic discussed was the Union's
apprenticeship proposal, with the Union urging adoption thereof by Respondent,
and with Respondent expressing its partiality to its own apprenticeship program
which had been, in its view, a successful one for a span of about 50 years. The
Union sought further discussion of the - Union' s proposals again, stating its posi-
tion as flexible but that Respondent should "put [its] best foot forward." There was
no change in the position of either party. The subject of strikes was again dis-
cussed, with Respondent giving its arguments against their advisability.
At the outset of the following meeting on May 10, Baker registered a complaint
concerning a news item which appeared in the Record Herald, a newspaper of gen-
eral circulation in Waynesboro, saying that many issues were unresolved. Baker said
that he felt Respondent was wrong in its citing wages and union shop as the major
problems at that time. The parties again indicated that there was no change in their
expressed positions on any of the proposals. Thus, as formerly, the Union repeated
that it was flexible on all its proposals and, in answer to Respondent's contention
that the wage package Respondent proffered would alone amount to $175,000, it
said that Respondent's wage rates and fringe benefits were out of line in the area
and were unacceptable and further that Respondent had much "catching up" to do.
Reference was again made by the Union to the strike vote and authorization and
that a strike would be called when the Union felt that it had exhausted every avenue
to get Respondent to bargain in good faith.
Bothe, who had been present at the recognition meeting on April 1, and had not
participated in any of the negotiating sessions concerning a contract, took over the
role of chief spokesman for the Union at the next negotiation session on May 14.
Each side, at the urging of Bothe, reviewed its bargaining position, with Baker giv-
ing the union position and Rice giving Respondent's position. Bothe asserted that no
issue, including the union shop and seniority or combination of issues was a "must,"
that economic issues were more important at that time and that if Respondent was
prepared to alter its previous position, this might start further movement from the
Union.lo Rice replied that Respondent's offer was a considered one and that he had
nothing new to propose, implying thereby that any discussion concerning benefit lev-
els in advance of any agreement as to the amount to be paid into pensions was pre-
mature. More particularly, Rice stated that Respondent was adhering to its 17-cent
package consisting of 12 cents in wages and 5 cents in pensions, but it would give
serious consideration to any union suggestion to split the 17 cents in any other way.
With specific reference to the union shop, Rice said that Respondent is fundamen-
tally opposed to a union shop on the ground that employees should have the indi-
vidual right to decide the matter of belonging to any organization.
A 15-minute recess was taken by both sides at this point. Upon resumption of the
session, Bothe advised Respondent that the local Union's request for strike authori-
zation had been granted and, based on the developments of the meeting that day,
Respondent's refusal to bargain in good faith would result in a strike which would
be authorized for 6 a.m. on Monday, May 17, and that the strike deadline was not
intended as a threat but as a notification so that bargaining could take place in the
intervening hours. No further meetings were scheduled at that time and none was
held that weekend.
The strike took place on Monday, May 17, as forecast by the Union, and was
accompanied by picketing. The strike is still in progress. Operations continued on
May 17 and thereafter at the plant without interruption, but with a reduced staff.
As of the date of the strike there were 527 employees in the production and main-
tenance unit. At the time of the instant hearing, in excess of 400 employees were
employed in this unit, and there was a total complement of between 800 and 900
employees. *
10 Although Bothe and Craig denied that the Union's request for additional bargaining
at this meeting was conditioned by P,othe on Respondent increasing its offer, I find, in
the light of all the foregoing that bargaining was in fact so conditioned by Bothe Further-
more, I find on the basis of the credited testimony of Hoff that Bothe then said, "we need a
bigger pie but we can't state the size now."
FRICK COMPANY 1095
2. The bargaining session on July 7 and the meetings with the
Federal mediator on May 28 and August 13
Since the close of the meeting of May 14, events occurred away from the bar-
gaining table which are alleged in the complaint as unfair labor practices. However,
I shall defer, until later, discussion thereof in the interest of presenting the bargain-
ing sequentially.
On May 28, Federal Mediator Harry Young called Respondent and the Union to
a meeting . Present for the Union were Baker and Craig; present for Respondent
were Hoff, Glen, Watts, Rice, and Miller. Young asked for an oral review of the
issues and this was done by Baker for the Union, and by Rice for Respondent.
Baker accused Respondent of maintaining an inflexible position, except that it had
changed its offer in one respect, viz, its proposal to increase group life insurance
coverage by $500. Rice explained "the Company's position with some repeating of
the history that led up to the strike and the negotiations." Young, after listening to
both reviews, volunteered that the parties appeared to be poles apart and that per-
haps some progress might be made if the parties could talk about specific contract
issues, mentioning seniority. Whereupon, Rice indicated that "prior to working on
seniority," he would prefer to reach agreement on the major issues which were "the
economic matters plus union shop, union security." After some discussion, Young
remarked that neither side seemed to be ready for mediation but that he would keep
in touch with the parties and, if he felt that another meeting was warranted, he
would request it. Whereupon, the meeting ended.
Pursuant to a telegraphic request of the Union for another negotiating session,
the parties met on July 7. Present for the Union were Bothe, Baker, Craig, and the
union committee consisting of Johnson, Smith, and Shade; present for Respondent
were Hoff, Glen, Aubrey, Rice, and Miller. Again, the account of this meeting is a
composite of the testimony of Bothe, Baker, and Craig, who testified for the Union,
and the testimony of Hoff and Glen, who testified for Respondent, and I here credit
the latter two for reasons already given where there are testimonial differences with
Bothe, Baker, and Craig.
During this meeting, the Union proposed a compromise set of demands and, for
the first time during the negotiations , framed its wage and pension demands in
terms of cents an hour; it stressed the greater importance to the Union of the pen-
sion; it took issue with Respondent's view of the Union's position on the union-shop
issue and stated its position thereon. Preliminarily, Bothe adverted to some com-
pany announcements in community newspapers, labeling as a gross distortion the
company claim therein that the strike was caused by the Union's continued insist-
ence on a union shop. When Rice insisted that the Union had not withdrawn its
union-shop demand and that it was a stumbling block in the previous meeting,
Bothe replied that Rice was wrong, and that he was prepared for some "hard nose"
bargaining and had with him a set of revised proposals. Bothe had nothing in writ-
ing to present; however, he had in his possession a typewritten sheet of the Union's
revised proposals from which he read, while Respondent's representatives endeav-
ored to take notes. Bothe stated that the Union's revised offer on pensions would
add 7 cents an hour to Respondent's pension offer and was about 6 cents an hour
less than the Union's original pension demand. He followed with the Union's pro-
posals as to sickness, accident, hospitalization and life insurance coverage; its pro-
posal as to shift premium pay, requesting 10 cents an hour in lieu of a 10-percent
differential for employees on the second and third shifts as proposed earlier; and its
proposal as to leadman premium pay, which the Union would standardize at 15-
cent-per-hour minimum.
Bothe also indicated at this time acceptance of (1) the Company's proposals of
six paid holidays as theretofore, provided the day before and day after eligibility
qualifications proposed by the Company were eliminated; (2) the Company's earlier
agreement to jury duty pay and bereavement pay, subject to agreement on language;
(3) the Company's proposal to eliminate the Union's cost-of-living escalator; and
(4) the Company's position on the noneconomic issues of grievance procedure, arbi-
tration, and seniority, subject to the drafting of mutually agreeable language. Bothe
also offered language on union security,ii which he said went along with the Com-
pany's desire to eliminate it. As to the Company's 12-cent-an-hour wage proposal,
the Union indicated it would accept 24 cents an hour in lieu thereof.
All the above economic proposals by the Union were premised on the contract
term being for 1 year. As one alternative, Bothe proposed a 2-year term, provided
"According to Bothe, he said, "we would sign a contract and would not require an
employee to become a member of the Union, unless it was his voluntary choice."
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a cost-of-living escalator clause, an additional holiday, and 12 cents more an hour
in wages effective on the anniversary date, were part of the package. As a second
alternative, he proposed a 3-year term, provided there were added to the provisions
for a 2-year term, an additional 12 cents an hour in wages, effective on the second
anniversary date, and an additional paid holiday. Bothe pointed out to Rice and the
other representatives of Respondent that the Union had always disputed Respond-
ent's figure that the Union's economic proposals amounted to $1 per hour but added
that, assuming that figure, the Union had scaled down its demands to about one
half that amount.
At the conclusion of this presentation by Bothe, Rice said that the parties were
too far apart to make it worth while to talk, that the Union had made minor
changes but still wanted additional money on the wage increase, still wanted the
union shop, and still wanted to negotiate the pension details, that Respondent had
made an early decision on these matters and there was no reason for a change of
mind. Bothe protested Rice's rejection of the Union's compromise offer as a basis
for further discussions and asked for a recess. A 20-minute recess was thereupon
taken.
Upon reconvening, Rice summarized "the Company's reaction and position." Rice
said that the Company's offer still stands; Respondent offered a 17-cent package "ini-
tially in an effort not to piecemeal up to where we thought we could go"; the 12-
cent-an-hour increase in wages was judged by the Company to be fair; and the 5-
cent proposal on pensions would permit the establishment of a modest pension
plan; 12 the Union's economic demands were exorbitant and not realistic; Bothe's
proposal with respect to union security was "99 percent a union shop"; based on a
strict calculation, the Union's revised scale of economic demands would add approx-
imately 75 cents an hour to current costs; 13 that it was evident that-the parties were
still far apart and the Company had no further offer to make at this time. It appears
that Bothe tried to turn the discussion during the postrecess period to the subject of
pensions, saying that pensions "had great importance in the mind of the Union and
that if we could work something out on it perhaps all these other things would fall
into line." To this, Rice replied that Respondent had made its offer to pay 5 cents
an hour into a pension fund, that the details could be worked out later and that
there was nothing further on the issues. The meeting adjourned at about this time.
The final session between the parties was held on August 13 at the instance of
Federal Mediator Young. Present for the Union were Bothe, Baker, Craig, one
D. J. Burton of the Union's Regional Office, and two members of the union com-
mittee, i.e., Shade and Smith. Present on behalf of Respondent were Rice, Aubrey,
Hoff, and Glen. At this meeting, Young asked for a review of all the issues and
both sides complied. After a recess for lunch, Young conferred with each side sepa-
rately. However, nothing was accomplished thereby and Young did not reconvene
the parties after the recess. There have been no further meetings.
3. The incidents away from the bargaining table occurring on May 14,
after the meeting that day, and thereafter
The parties stipulated that, on May 14, Respondent posted throughout the plant
at places where notices to employees are customarily posted, the following notice,
signed by Hoff on behalf of the Industrial Relations Department:
We have been advised by the negotiating team of the United Automobile Work-
ers Union that our employees in the bargaining unit will be instructed to
"strike" at 6:00 a.m., Monday, May 17.
However, work will be available, as usual, Monday for all employees who
enter the plant, and all are requested to do so.
The National Labor Relations Act guarantees all employees the right to
work during a strike . . . whether or not they are members of the union call-
ing the strike.
11 In this connection, I am not persuaded that Rice used the phrase "not one mill more,"
as Bothe testified.
is Although Hoff testified to the 75-cent figure while Glen recalled that 80 cents was
stated by Rice, I regard this minor discrepancy as insufficient to affect my credibility find-
ings herein.
According to Hoff, a later calculation was made by Respondent and it discovered that its
original estimate of 75 cents was relatively accurate and a bit'on the low side.
FRICK COMPANY 1097
All employees considered to be in the bargaining unit who report for work
on their normal jobs will receive a general increase of 12 cents per hour, effec-
tive May 17th.
Employees who have questions should consult with their Foremen, Super-
visors, or members of the Industrial Relations Department.
On May 15, there appeared an announcement by Respondent in the Record Her-
ald, a newspaper of general circulation in Waynesboro, entitled "The Strike at Frick
Company," with the explanation at the beginning that the purpose thereof was "in
order that our employees may understand what has taken place during negotiations
with the United Automobile Workers Union during the past six weeks" and with
the statement at the close that the Company had been notified by the union com-
mittee on May 14 that a strike would take place on Monday, May 17, at 6 a.m. The
Company set forth therein that the Union had "demanded" many items from the
Company including (1) a "substantial" wage increase ; (2) a pension plan; and (3)
a union-shop agreement and a checkoff provision. With respect to wages, the
announcement said that, after careful study of the demands and current factors and
trends, the Company made a fair wage and pension proposal offer of 17 cents, con-
sisting of a general wage increase of 12 cents per hour and a pension plan contri-
bution of 5 cents per hour; the Union rejected the Company's wage increase offer,
although it was considerably higher than the current industrial average increase of
7.7 cents and was also in line with the Company's long-established policy of main-
taining a wage increase pattern comparable with other local industrial firms; the
Union has not made a counterproposal to Respondent's above-wage increase pro-
posal on a cents-per-hour increase basis; early in the negotiations it submitted a
"wage scale" proposal which, estimated conservatively, would increase company
wage rates approximately $1 per hour; and "this impractical proposal, of course,
was not seriously considered by company negotiators ." With respect to pensions, the
Company hearkened back to several years ago when it made plans to establish a
pension plan for hourly employees, pointing out that although the plan was not
installed, the Company-has continued basic plans for such a program, thus indicat-
ing its pension-plan intentions are in line with, and actually have preceded, the
Union's current demand therefor. As to the union shop and checkoff, the announce-
ment asserted that these demands had been rejected. In the case of the union shop,
it alluded to indications from some employees that the union shop was objectionable
because of their religious beliefs and/or personal convictions; and, in respect to the
checkoff, it asserted that among the moneys to be deducted from payroll checks are
dues, initiation fees, fines, and other union charges which "the Company feels
should be made directly by members on an individual and voluntary basis-not on
an automatic payroll deduction basis."
The announcement also set forth that seniority was another stumbling block, in
that the Union- wanted a' plantwide seniority while the Company wanted a senior-
ity provision which would "protect them on a departmental and occupational skill
basis-not on years of -service alone." The Company also asserted that while it has
stood firm on the .17-cent-per-hour package offer, it "has indicated a willingness to
consider several of the Union's demands-prpvided agreement on major issues can
be resolved," while the Union "has continued to insist upon acceptance of most of
its original `demand' items."
Thereafter, according to Hoff, the following form was prepared for all employ-
ees who went on strike on May 17;' it was marked to be effective on May 24, and
a copy was made for every such employee'and,placed in his official employee folder:
CHANGE IN EMPLOYEE'S STATUS
Employee ' Clock ' Effective
Name No' Date 5-24-65
Detail of Removed from payroll as a Quit effective May 24, 1965;
Change absent seven calendar days on unauthorized basis.
Absence is in violation of following paragraph extracted from page 2,
under heading Tardiness-Absence, in booklet Frick Employees' Manual,
Rules and Regulations, August 1956:
An employee absent seven (7) consecutive calendar days for un-
authorized or unexplained reason will be considered to have quit the
employ of the Company. His name will then be removed from
the payroll.
Authorized Richard C. Hoff
Signature Director of Industrial Relations
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The above-mentioned manual is given to every new employee and explained to him,
and it was in effect during 1965 and for many years prior thereto. According to
Hoff, this regulation would apply to any employee, whether or not on strike, if he
were absent.14
Subsequently , on June 25 , Respondent placed another announcement in the Rec-
ord Herald entitled, "A Message for Frick employees on Strike " This advised strik-
ing employees that they could not be fined by the Union for crossing the picket line,
would be protected in their homes and on the street from violence or acts of van-
dalism by pickets or union representatives , that "Frick Company will not agree to a
Union shop contract, and that there will never be a question of losing your jobs if
you return to work now ," and finally that over 100 men including an increasing
number of bargaining unit employees are now working in the plant.
The parties stipulated further that on or about July 8, the following letter was
mailed to,all hourly paid employees, under Glen's signature:
July 8, 1965
Dear Fellow Worker:
You have one more opportunity to qualify for Vacation Pay this year.
You will receive a Vacation Pay check on July 16, in accordance with stand-
ard practice, provided:
You return to your job, and thereby have your name again placed on
our payroll, on or before July 14.
And, work on July 14, 15 and 16.
There is no other way.
If you do not work on the three days cited above, eligibility for Vacation
Pay this year will be forfeited.
Are you going to return to work and thereby become eligible for Vacation
Pay?
It's up to you.
Sincerely yours,
(S) T. M. Glen
Vice President & General Manager
Refrigeration Division
The standard practice reference above was to Respondent's vacation plan which
was then in effect. This plan provides for vacation pay on a graduated scale after
1 year or more of active service , as of the period ending the nearest June 30th. It
becomes applicable if any employee has worked at least 75 percent of the pay
periods during the preceding year, subject to exceptions not here material, and
fixes the vacation week as the third full calendar week in July of each year 15 and
fixes the payment thereof during the week preceding said vacation week. Also
bearing on the vacation pay issue is section 8 of the vacation plan, which reads
as follows:
No vacation or vacation pay will be allowed or paid to any person who is
not on the payroll of the Company on Wednesday preceding the week in
which vacation pay is distributed.
It is clear from the testimony of Hoff that vacation paychecks were not given
or sent to striking employees who did not return to work by July 14 and actually
worked on July 14, 15, and 16. It is the further testimony of Hoff that, in order
to qualify for vacation pay in July 1966 , striking employees would have had to
return to work by September 30, 1965.
Beginning with July 9 and extending into August, Respondent, through its super-
visors, made overtures to striking employees to return to work , doing so either in
person at their homes or at or near the picket lines or over the telephone. The
complaint alleges that , during these discussions , threats of reprisal and promises of
benefit were made. Also on July 9 during the afternoon , while some of the strikers
were soliciting strike funds at entrances to the Fairchild Company plant and the
Mack Truck Company plant, both being located in Hagerstown , Maryland, Hoff
I{ Hoff testified that he did not know, in all cases , that the employee whose name was
removed from the payroll was on strike . It is apparent , however, and I find, in the
absence of any evidence to the contrary, and in view of the fact that the change was
made effective exactly 7 chronological days after the strike began, that very few, if any,
nonstrikers were involved at this time.
15 In 1965 the third full calendar week began on July 19.
FRICK COMPANY 1099
and one Miller, who is chief of plant guards for Respondent, drove near to them
in a car and Miller took their photographs. This conduct is alleged to be surveil-
lance in violation of the Act.
As to the taking of photographs, the facts are not in dispute. Hoff testified that
Miller and he drove to the entrances of the Fairchild plant and the Mack Truck
plant on July 9, that Miller took the photographs at his request, taking 'seven pho-
tographs in all, i.e., two at the rear entrance and two at the front entrance of the
Mack Truck plant and one photograph at each of the three gates at the Fairchild
plant. Hoff said he arranged for Miller to get a Polaroid camera and go with him
"for the purpose of identification," that he was interested in knowing whether the
solicitors for strike funds were actually Frick strikers, and whether there might be
in the solicitation group employees from other plants. According to employee
Woodrow Creider, who was at the Mack Truck plant on that day with other
employees, the men stationed themselves at the back entrance, placed a sign in a
grass plot in the center of the highway which read that Frick employees were on
strike, and the men were carrying boxes to solicit for the strike fund. There is also
testimony by striking employees John Buhrman, Jr., and Ralph Plum, indicating
that about seven or eight persons were engaged in soliciting funds at the different
gates at Fairchild and signs were displayed indicating they were on strike at Frick,
that the car approached them slowly and was in sight for about 3 minutes. Appar-
ently there was no conversation between Hoff and Miller on the one hand, and
those soliciting funds on the other.
With respect to the overtures to employees, the record discloses the following
background testimony. According to Hoff, a series of meetings were held during
the strike by management with supervisors. Presiding at these meetings was Glen,
and assisting him was Hoff. Glen and Hoff "asked the foreman to contact striking
employees and to tell them that the Company would like to have them come back
to work. [They] advised the foremen what they could do legally in [their] opinion
and what they should not do . . . [they] asked the foremen to remind the employ-
ees of the vacation policy which had been in effect since 1952, and to advise them
with the details . . ." Glen corroborated Hoff in all significant respects. Glen
emphasized that they had a selling job to do to persuade foremen that they should
participate in this effort and- that the, instructions to the foremen were to "use
every persuasive method you can to convince workers to go back to work." The
testimony of both the supervisors and the striking employees approached by them
is that the discussions were friendly ones and the home visits were not prearranged.
According to striking employee Barry W. Riber, Foreman Kenneth McNew, the
supervisor of his department, spoke to' him in front of the plant on July 9 or 10,
saying that, "if [he] was not back to work by the following Wednesday, [he]
would have no job and there would be no ands, ifs or buts about it. He [McNew]
was instructed to hire someone else in [his] place." Kenneth McNew did not take
issue in his testimony- with Riber's version. However, he added that his remarks
were directed to five or six individuals who were there in a group along with
Riber; and that he said that if the men were not back by July 14, they would not
receive their vacation pay.
According to striking employee Charles F. Stoops, Foremen Fred Kirkpatrick
and Richard Omer, tool department supervisor and assistant supervisor , respec-
tively, paid a visit to his home on or about July 9 at approximately 6:30 p.m. At
that time, Kirkpatrick said that he was there with information that he, Stoops, had
to be back to work by 7 a.m. on July 14 and that after' that date "maybe [he]
could be back and maybe [he] couldn't. But [he] would have to come through the
personnel office and be hired at the option of the company." According to Stoops,
he inquired about whether Kirkpatrick would recommend him for a new job, and
Kirkpatrick said he could not do it, and he also received a "no" answer from
Orner to the same question . However,.Kirkpatrick testified that he did not mention
a loss of job, that he did say that if Stoops was not back to work by 7 a.m. on
July 14, Stoops would lose his vacation pay. Omer's testimony was that, after
Kirkpatrick's statement about vacation pay, he, Orner, added that he would like to
have Stoops back at work and that, if Respondent did not get enough strikers back
to work, there was a possibility that the manufacturing facilities would cease, and
that Respondent had plans for the eventual replacement of those who did not
return. Omer acknowledged that Stoops asked about a recommendation but his
version was that Stoops asked if he , Stoops , were to ask for a recommendation,
would they give him one; and that neither Kirkpatrick nor he answered the query.
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The same supervisors visited striking employee Walter H. Beard in his home on
Monday evening, July 12 , at 8:30 . According to Beard , Kirkpatrick , after exchang-
ing greetings , said that he had come to inform Beard that he was supposed to be
at work on July 14 at 7 a .m. and "we don't mean 5 minutes after 7 or a quarter
after 7, we mean 7 o'clock . If you are not there by 7 o 'clock you no longer have
a job with the Frick Company ," that thereafter he might be hired as a new
employee. He testified further that Kirkpatrick said that the Company did not
want some employees , like Stoops , to return , adding, "Boy , we got the goods on
him. We got pictures and everything of him." Beard also testified that Orner said
that if enough strikers did not return , Respondent was going out on the street to
hire new employees and if there were not enough new ones, Respondent was going
to turn the plant into an engineering and assembly plant and had already started
to evaluate the machinery for sale purposes . It was Kirkpatrick 's testimony that
what he said about returning to work by 7 a.m . on July 14 was in the context
of loss of vacation pay, that he mentioned nothing about pictures . Orner corrob-
orated Kirkpatrick 's testimony . He indicated , too, that the statement was made
that replacements would be hired for the strikers if they stayed out and that there
was a possibility of a cessation of the manufacturing operations if Respondent
could not get the strikers back.
The same supervisors visited striking employee Vernon C. Hartman , just outside
his home, on or about the same day at 6 o'clock in the evening . According to Hart-
man, Kirkpatrick and Orner asked him when he was coming back to work, that
his reply was that he would not return until the Union said so, and that he was
told by one of them, whom he could not identify , that if he was not back to work
by July 14 his job would be terminated and he would have to be hired as a new
'man at a 10- to 15-cent cut in wages. However, Kirkpatrick testified that his con-
versation with Hartman was along the same lines as the one with Stoops , that he
never mentioned a 10-cent cut in wages, and that Hartman indicated that he did
not believe that he was going to return to work . Orner testified that he made the
reference to possible replacement and to the possibility of a cessation of manufac-
turing operations if the Company was not successful in getting the strikers to
return.
On July 13 , about noon , according to striking employee Ralph Plum, he received
a telephone call from Foreman Charles Poole . At that time, Poole told him that
if he came back,to work on July 14, 15, and 16 , he would receive his vacation pay,
and, if he did not return by July 19, he would have to start as a new man. Plum
testified further that he, in turn , replied that he would not return until the Union
had a contract . This ' telephone call, according to Plum , was followed by another
about 2 weeks later . He was , told then by Poole that his job was still open and if
Plum returned he would receive the 12-cent wage increase . It is Plum's further
testimony that Poole said "if this thing-gets broke up [sic] you might get your
vacation pay." The testimony of Poole , however, was to the effect that he spoke
about Plum's -returning to work in order not to forfeit vacation pay and that Plum
seems to have misunderstood him in attributing to him the above remark about
not returning by July 19. It is Poole's testimony that he told Plum that he was
needed and that the Company was hiring; that, although he; Poole, moves his men
around all over the shop, Plum would be in .Poole 's group if he returns and there
always will:;be, room , for him as he is a valuable man. As , to the second telephone
conversation , Poole testified that, he urged Plum to return , that he, Plum, was a
valuable man , and that he, Poole, would like Plum to` come back . He was not
interrogated as to the remark attributed to him by Plum as to vacation pay being
paid to Plum "if this thing gets broke up."
On July 14, around ',9:30 a.m., Foreman Martin visited striking employee James
W. Cool at his home. According to Cool , Martin told him that if he came in to
work that day, he would get vacation pay and the 12-cent wage raise, otherwise he
would not; that if he came back later there was a possibility he would not get the
12 cents. About 2 or 3 weeks later, in the evening according to Cool , Martin again
visited his home. Martin told him he had forfeited his vacation pay, and indicated
to him that he might as well return as the Company was still looking for people.
Cool replied that he figured that he should have come back but he could see no
reason to do it then, as the vacation pay was gone . A third visit was paid to Cool's
home one evening 2 or 3 weeks later . Again, according to Cool, Martin told him
that he might as well come in to work as the Company was not going to give 1
cent more no matter how long he stayed out and that his job was available with
the 12-cent wage increase . According to Martin 's testimony, the first discussion was
FRICK COMPANY 1101
with regard to forfeiture of vacation pay if Cool did not return by July 14; dur-
ing the second visit he spoke about the Company's hiring of replacements and of
the possibility of closing down the foundry for lack of help; and during the third
visit he spoke about the fact that the Company was still looking for Cool to return.
Martin said that Cool asked about the 12-cent wage increase and he replied, "yes."
Foreman Martin also paid a visit to striking employee Kenneth E. Nunemaker
at his home during the last week in July. Nunemaker testified that Martin talked
to him about coming back to work, indicating that, if he did not return to work
by August 9, he would not be reinstated but would have to be rehired as a new
employee and, further, that the Company was talking about shutting down the
foundry where he worked about the middle of August if by that time there were
not enough men back to operate the foundry properly. According to Nunemaker,
he replied that, "there wouldn't be no [sic] use for [his] going back" if he had
to do so as a new employee since he would lose almost 10 years of seniority thereby.
Martin's testimony was at odds with that of Nunemaker in that he denied saying
that Nunemaker would have to start all over as a new man. According to Martin,
he told Nunemaker that if he would return to work his job was still open, and
that Respondent needed him. He added that he told Nunemaker that Respondent
was "hiring people and he would have to go to personnel" and that Nunemaker
said, "I will be one of the last to return."
Martin also visited striking employee Richard C. Good on July 29, at the home
of Good's neighbor. According to Good, Martin said that if he, Good, would
return to work he would receive his original wage plus 12 cents , that he, Martin,
had always treated Good well in the past as to overtime and raises and would do
the same again if he returned to work, that Good had to return by August 3 and,
if he did not do so, the Company was going to close the factory down. According
to Good, he answered that Respondent "might just as well close the foundry down.
[He] wasn't coming back to work, if the Union didn't make it. [He] would never
come back." Martin testified that he asked Good to return to work and said that if
enough employees did not return there was a possibility of closing down . He testi-
fied further that Good replied that he was not going to return until the Union had
a contract. Martin did not mention anything about giving Good a deadline for
returning.
There is also testimony by striking employee Glen Fetterhoff that on August 3,
while he was on picket duty in front of the plant's main office, Merle Benchoff,
foreman of the shipping department, walked up to him and said that if he , Fetter-
hoff, was not back in the plant by the next morning, there would be two fellows
to take his place operating the crane and that Benchoff specifically mentioned Earle
Bare and Clarence Pebble as the replacements . However, it is apparent from Fet-
terhoff 's own testimony that both Bare and Pebble were on strike at the time of
the conversation . Furthermore , Benchoff denied making this reference to Bare and
Pebble, adding that in any event, only one of these two individuals works for him.
As to the content of the conversation with Fetterhoff, Benchoff testified that Fetter-
hoff is a good man and that he stopped to talk with Fetterhoff, asking him whether
he had given any thought to coming back , and that Fetterhoff answered , "he was
waiting."
According to the testimony of striking employee George H. Carbough, on Au-
gust 16, at 8:30 p.m. be was standing with a group of employees in front of the
office and Enoch Newlon, supervisor of the vise'and assembly shop, spoke to them
saying that if all the employees were not back at work by September 1, "they would
be out . . . other fellows would take their jobs." Carbough testified further that
Newlon, without mentioning names, said some of them would be, and others would
not be, rehired. In respect to the foregoing, Newlon testified to a conversation at the
above-mentioned time in front of the building but not in front of the plant office
and that he did not know Carbough before the time of his giving testimony herein.
As to the content of the conversation, Newlon said he asked the employees, some of
whom were from his department, to come back to work because he had lots of
work and would like to' have all the employees- back, and that the Company would
just as soon have old employees as anyone. He testified further that in response to
a question by one of the employees about vacations, he replied that this had already
been sacrificed by not returning to work on 'July 14, 15, and 16, and that if they
were not' back by September, 30, they would sacrifice their vacation for the year
1966. Newlon specifically denied.,the remarks attributed, to him by, _Carbough,
namely, that if the strikers did not 'return to work by September '1, they would auto-
matically lose their jobs and would have to be rehired as new employees.
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The allegations of the complaint and conclusions thereon
1. The appropriate unit
The complaint alleges, Respondent admits, and I find, that all production and
maintenance employees at Respondent's Waynesboro, Pennsylvania, plant, including
shop clerical employees, inspectors, leaders who are not supervisors as defined in
the Act, and factory and plant janitors, excluding timekeepers, farm machinery and
sawmill parts retail sales and store employees, refrigerator engineer trainees, pat-
ternmakers and their apprentices, other office clerical employees (including office
clerical employees of the production control department), technical employees
(including employees of the engineering and drafting department), watchmen,
guards, professional employees, and supervisors as defined in the Act constitute an
appropriate unit for the purpose of collective bargaining within the meaning of
Section 9(b) of the Act.
2. The majority status of the Union
Respondent admits, and I find, that a majority of the employees in the aforesaid
unit had, as of April 1, 1965, designated and selected the Union as their bargaining
representative. As already found, on April 1, Respondent entered into a recognition
agreement with the Union covering the appropriate unit herein. I therefore find
further that the Union has, at all times material herein, represented a majority of
the employees in the aforesaid appropriate unit.
3. Concluding findings as to the alleged overall bad-faith bargaining
and alleged bad-faith bargaining as to specific subjects 16
Contrary to the General Counsel, I find no warrant for concluding that at the
very inception, Respondent, through its chief negotiator, Rice, displayed animus
toward the Union and its organizational approach and that this animus pervaded
the bargaining. While the events of March 31 and April 1 leading up to recogni-
tion may have rankled Respondent's negotiators, I am not persuaded that this so
affected Respondent's attitude toward collective bargaining as to become an opera-
tive factor in determining whether Respondent met its bargaining obligations under
the Act. Nor do I find anything adverse to Respondent in the fact that the parties
did not meet more frequently. While it is true that Baker, on behalf of the Union,
requested more frequent sessions than twice a week, the Union did agree, after
Respondent's claimed inability to meet more frequently, to hold sessions twice a
week on Mondays and Fridays, and this schedule was thereafter observed up to the
time of the strike, with one insignificant deviation. Nor do I find persuasive the
evidence adduced by Respondent to show that Respondent's negotiators, beginning
with the sixth session, cut the meetings short over the objection of the Union's nego-
tiators and thereby curtailed discussion of the issues. Moreover, even assuming that
such curtailment by Respondent did occur, such conduct, in and of itself, or in com-
bination with the other factors, referred to above, or discussed hereinafter, do not
add up in the circumstances to a preconditioned attitude by Respondent of hostility
to the principles of collective bargaining. Furthermore, it is apparent, and I find,
from the entire course of bargaining that, whether or not Respondent violated Sec-
tion 8(a) (5) of the Act turns upon the substantive positions taken by both Respond-
ent and the Union during the course of bargaining on the various matters under
consideration. I shall, therefore, proceed to a consideration of these positions.
While the Union presented a written "contract proposal" containing 31 provisions,
in all, at the first negotiation meeting, many of these provisions were skeletal in
form. The Union kept supplementing the proposal at subsequent meetings and ask-
ing Respondent to furnish data and other information in addition to that requested
at the first meeting. Thus, the Union furnished at the April 9 meeting supplemen-
tary language on grievance procedure, management responsibility, strike stoppages
19 The complaint alleges an independent violation of Section 8(a) (5) in that Respond-
ent unilaterally granted a wage increase and pension contribution to employees who
remained at work during the strike. However, the record discloses, and I find, that only
a wage increase was unilaterally granted to such employees.
FRICK COMPANY 1103
and lockouts, union shop, and arbitration; presented at the April 12 meeting a cost-
of-living proposal and a wage-range proposal; furnished at the April 16 meeting
benefit levels on the pension plan proposal and proposed language on washup time,
bereavement pay, jury pay, and a copy of a Blue Cross-Blue Shield proposal
which it had admittedly prepared for another corporation; indicated at the April 19
meeting that it was preparing a proposal'on an apprentice program and in connec-
tion therewith it requested Respondent to furnish the Union with the company pro-
gram in, this area; and at the meeting on May 5 furnished a copy of the Union's
proposed apprenticeship program. Respondent, in turn, made available to the Union,
at the second and third meetings, data and information requested by the Union;
furnished a counterproposal on management responsibility and seniority at the
fourth meeting on April 16; furnished more data at the fifth meeting on April 19
and gave a detailed explanation of Respondent's position on the Union's proposals,17
accepting some outright 18 and some provisionally, 19 suggesting revisions of some,20
rejecting some,21 and deferring on others; 22 and furnished, at the April 23 meeting,
more data as requested during prior meetings and presented its counterproposals on
wages and pensions at that time.
It is, therefore, obvious that many economic and noneconomic differences existed
between the parties as of the close of the meeting on April 23. Yet, thereafter, until
the time of the strike, no significant change occurred at any of the meetings in either
the Union's position or Respondent's position on the economic or the noneconomic
issues.23 Baker submitted Respondent's wage package counterproposal to the union
membership meeting of April 27 but did not recommend its approval. Following the
rejection by the membership of this proposal, Baker advised Respondent thereof at
the April 30 meeting and asked Respondent to increase its offer as it was not
enough. However, Baker refused to specify what was enough, saying only "put
[your] best foot forward" or that the Union was demanding "more than you have
presently offered" or "a substantial wage offer." The fact that the Union kept reas-
suring Respondent at this meeting and subsequent meetings that it was flexible on
wages and pensions did not add any substance to its blanket demand for "more"
money in this area. The parties had thus arrived at a stalemate on the issue of
"While Rice had indicated Respondent's position on some of these provisions at prior
meetings, there is no need to state them here, as Rice appears to have incorporated such
positions into his explanation at this meeting.
18 Article 1, Agreement ; Article 2, Recognition.
10 Article 9, Strikes, Stoppages, Lockouts ; Article 11, Hours of work and overtime pay ;
Article 13, Lost Time and Incomplete Day's Work ; Article 16, Bereavement Pay ; Article
17, Jury Duty Pay ; Article 20, Leaves of Absence ; Article 21, Illness and Health ; Article
23, Waiver; Article 24, Qualification (Rice would go along only with part B provisionally) ;
Article 25, Assignability, Article 27, Notices (Rice would go along with a part thereof,
saying there was no need for, or he could not go along, with the rest) ; Article 29, Super-
visory Force; Article 30, General Provisions (however, Rice rejected the rest period
clause and questioned the necessity of the discrimination clause or the Armed Forces
clause) ; and Article 31, Duration (Rice was speaking of a 1 year agreement, but he was
not ruling out a 2 or 3 year agreement).
20 Article 3, Management Responsibility ; Article 7, Grievance Procedures ; and Article 8,
Arbitration.
21 Article 4, Union Shop and Checkoff (Rice said the Company fundamentally does not
believe in a union shop ; it believes the right of the individual to decide for himself is a
fundamental right that should be respected. In rejecting the checkoff Respondent was
apparently taking the position that dues etc. should be paid directly to the Union and not
on an automatic payroll deduction basis) ; Article 5, Representation , Article 6, Duties
and Responsibilities of Union Representatives; Article 10, Seniority (Rice would adhere
to present departmentwide seniority) ; Article 18, Shift Differential (Rice would adhere
to present plan ) ; and Article 28, Bulletin Boards (Rice said the Union could not have a
bulletin board of its own ; it could furnish notices to the Company for approval and post-
ing on company bulletin boards).
22 Article 12, Wages ; Article 14, Holidays ; Article 15, Vacation Pay ; Article 19, In-
surance ; and Article 26, Safety (Rice asked for deferral on the washup proposal ; as to
the rest of the Article , Rice said State law would suffice).
48I do not regard as a significant concession Respondent's statement at the May 5
meeting that if the parties could agree on Respondent's wage and pension offer, Respondent
might increase the existing employee life insurance coverage by $500.
1104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages and pensions, with no indication that either side was willing to make the
first move to alter the situation. The developments on the noneconomic issues took
a parallel course. The emphasis at all times seemed to be that Respondent should
change its position from that expressed-at the April 23 meeting and this might start
further movement by the Union. At no time, however, did the Union take the initi-
ative and suggest language changes or revisions in its original contract proposal, as
thereafter supplemented. Indeed the credible testimony of Hoff establishes that
Baker was unwilling to participate in the writing or editing of any language in rela-
tion to any proposal. The consequence of all this was that the Union was adhering
to its stated position on each issue and Respondent was doing the same, and such
discussion that did occur was no more than the same type of verbal sparring as took
place on the economic issues.24
I am therefore persuaded that, as of the time of the strike on May 17, the parties
had reached an impasse on the wage issue 25 and, because of the primacy attached
by the Union to wages at the time, a deadlock in the negotiations, and that as of
that time Respondent had not violated its obligation to bargain collectively in good
faith. In this connecion, I am not persuaded on this record that Rice, on behalf of
Respondent, had precluded bargaining on the issue of the union shop. I do not
regard as reliable the testimony of Baker and Bothe that Rice stated at several meet-
ings that he would "never" grant a union shop. Rather do I find, as Hoff testified,
that Rice did not use the word "never", that he discussed the union shop with the
Union indicating, inter alia, that Respondent was "fundamentally opposed" to the
union shop and believed in the right of the individual to decide for himself whether
to belong to any organization. While Respondent's position was an adamant one,
and while it aired such adamance in the local newspaper on May 15 this was in a
context of discussion of the issue with the Union, even though such discussion
proved fruitless. Accordingly, I find no refusal to bargain on union security prior to
the strike 26
Nor do I fault Respondent because of an alleged refusal to discuss benefit levels
of pensions until its offer of 5 cents per hour payable into a pension fund was
accepted by the Union. Respondent's position was, in part, as Glen testified credibly,
that before benefits were calculated, the matter of "whether the pension benefit
would be paid out immediately or some years in the future had to be ascertained." I
am also persuaded that Respondent indicated that it would not be adverse to mak-
ing more than 5 cents of its 17-cent wage package available for pensions should the
Union prefer a different mix of the wage package. Thus, while the Union was seek-
ing a discussion of benefit levels, Respondent, not improperly, regarded such dis-
cussion as premature until the amount to be paid into a pension fund and the effec-
tive date for the commencement of pension benefits were fixed 27
During the strike, the bargaining situation continued unchanged until the session
on July 7 which was requested by the Union 28 At that meeting, the Union proposed
a compromise set of demands in which it, in effect, accepted Respondent's position
n I am aware that Baker , for the Union , was denied permission to visit the plant,
although he claimed that it would better equip him to revise the Union's proposal on the
issue of seniority . However , I do not find such denial supportive of a finding of a refusal
to bargain as I am not persuaded that the Union had indulged in more than sparring in
this respect, as well. As found above, on July 7, the Union accepted Respondent 's proposal
of departmental seniority in lieu of its demand for plant-wide seniority.
25Dallas General Drivers, Warehousemen and Helpers, Local Union No. 745 Interna-
tional Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers Y. NL.R.B.
[ Empire Terminal Warehouse Company ], 355 F.2d 842 (C.A.D.C.), enfg. 151 NLRB 1359.
."McCulloch Corporation, 132 NLRB 201, 211, cited with approval on this issue in
Capitol Aviation Inc. v. NL.R.B ., 355 F.2d 875 (C.A. 7). For similar reasons, I find
similarly as to Respondent's adamant position on the issue of checkoff.
27 It would appear that Respondent withheld from the Union , which was seeking to have
its actuary and Respondent ' s actuary get together on benefit levels, the fact that it had
consulted with an actuary in preparing the proposal of 5 cents an hour on pensions.
However , in view of the above finding that Respondent did not act improperly in seeking
to defer discussion thereof, I reject this as a factor to be considered in appraising, the
refusal-to-bargain issue.
At the intervening meeting on May 28 called by Federal Mediator Young, nothing
was accomplished . The meeting adjourned with the statement by Young thai neither side
seemed to be ready for mediation.
FRICK COMPANY 1105
on the noneconomic issues and on such economic issues as paid holidays, jury duty
pay, bereavement pay, and cost-of-living escalator. Also, for the first time during
the negotiations the Union framed its wage and pension demands in terms of cents
an hour, stressing the greater importance to it of the pension demand; it offered
revised proposals on sickness, accident, hospitalization and life insurance coverage,
on shift differential pay, and on leadman premium pay; it also took issue with
Respondent's view of the 'Union's position on the union-shop issue and stated its
position thereon. For some unexplained reason, Bothe, the Union's chief negotiator
had nothing in writing to present;'he did have in his possession a typewritten sheet
of the Union's revised proposals from which he read, while Respondent's representa-
tives endeavored to take notes, in conformity with a statement by Bothe that they
should do so. The situation was thus handicapped insofar as allowing for discussion,
free from misunderstanding as to exactly what the Union's revised proposals were.
In essence, the Union sought to communicate to Respondent that reaching a
collective-bargaining agreement depended upon settlement of the economic issues
of wages, pensions, the various forms of insurance coverage, shift premium pay, and
leadman premium pay, and that it was removing the union-shop issue from the bar-
gaining picture.
With respect to the latter, however, the message from the Union did not appear
to come through clearly to Rice, the chief spokesman of Respondent. Communica-
tion was partly complicated by the fact that the clause to be inserted on union secur-
ity was not presented by the Union in written form and, as Glen credibly testified,
the text of the language was read by Bothe to them from his notes "at a rapid rate"
and he is "not sure to this day [Respondent has] it correctly." Additionally, accord-
ing to Hoff, when Rice sought to get the Union's position on the checkoff contem-
poraneously therewith from Bothe, the latter "elected not to answer Rice's questions
in that area, at that time." Under all these circumstances, Rice's characterization of
Bothe's proposal as "99 percent a union shop" and the fact that he remained unper-
suaded by the Union's assertion that it was withdrawing its demand for a union
shop do not add up, I find, to the taking of a position with a conscious purpose of
frustrating agreement. Hence, I conclude that Respondent did not manifest any bad-
faith bargaining thereby.
With respect to the Union's revised position on the economic issues, I am also
satisfied for the reasons set forth hereinafter that the record in this area does not
preponderate in favor of a finding that Respondent did not, in fact, have an honest
intention of reaching an agreement with the Union and desired to avoid rather than
foster collective bargaining. It is true that the Union's revised proposals on eco-
nomic issues represented a substantial reduction in its demands in terms of cents-
per-hour cost to Respondent; in this connection, the Union, in effect, claimed it had
reduced its economic demands by one-half, whereas Respondent claimed, in effect,
that the reduction was no more than one-fourth. However, throughout all these
meetings, Respondent remained unpersuaded that it should grant more than its
original offer of 12 cents an hour on wages and 5 cents an hour on pensions 20 In
offering 12 cents an hour on wages, Respondent did not plead inability to pay;
rather it was persuaded that it was thereby adhering to area practice in line with
company policy and it relied for support on the fact that the Landis Machine Com-
pany and Landis Tool Company in the area had granted a 12-cent-an-hour increase
to their employees about that time 30 While it is true that these companies manufac-
90 As I have already found, Respondent did not preclude a different distribution of the
17 cents per hour involved , had the Union so desired.
so I draw no adverse inference, as would the General Counsel, from Respondent's refer-
ence to the Union 's wage demand in the full page announcement in the Record Herald of
Waynesboro on May 15 concerning the strike . The relevant part of the announcement
reads as follows: "Although Union negotiators do not accept the Company's Wage Increase
proposal , they have not made a counter -proposal on a cents -per-hour increase basis. Early
in the series of negotiating meetings the Union submitted a `wage scale' proposal that,
according to conservative estimates , would increase the Company 's wage rates approxi-
mately $1 per hour . This impractical proposal , of course , was not seriously considered by
the Company negotiators." I find that Respondent had reference, as Glen explained, to
the fact that the demand was so high relative to Respondent's wages that Respondent felt
the demand was not a serious demand.
264-188-67-vol . 161-71
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ture machine tools, products dissimilar to those of Respondent, the credible testi-
mony of Glen establishes that, in general, the employees of these employers use
the same skills as do Frick employees. It is also true that Rice conceded at this
meeting that Respondent had made an early decision on these matters and there was
no reason for a change of mind, that it had offered a 17-cent package "initially in
an effort not to piecemeal up to where we thought we could go." However, as the
Board said in a situation in which Respondent remained unpersuaded throughout
the negotiations that it should grant any wage increase or other economic benefits,31
As the Trial Examiner noted , the Statute does not require that either party
agree to any proposal or make any concession . The fact that Respondent may
have sought a contract that would not increase its economic costs does not per
se establish bad faith bargaining . The Respondent was satisfied that its present
wage structure reflected the local labor market and was adequate for the type
of work involved . This Act is not a substitute for an effective argument to the
contrary . In the context of the instant case , we are constrained to disagree with
the Trial Examiner that Respondent's attitude toward bargaining was "tanta-
mount to an outright refusal to bargain."
The instant situation presents an a fortiori situation in that Respondent was per-
suaded that it should grant a wage increase and other economic benefits but
remained unpersuaded that it should go beyond what it regarded to be proper in the
premises . Accordingly , in accord with the cited case, I find that there was no refusal
to bargain in violation of Section 8(a)(5) of the Act in the aforesaid attitude of
Respondent toward bargaining on the wage issue and other economic benefits.
In sum, I am persuaded , and find, that Respondent did not bargain in bad faith
during the July 7 meeting ,32 nor did Respondent 's overall conduct , during the entire
course of bargaining , even when appraised in the light of the incidents to be dis-
cussed hereinafter, reveal an attitude inimical to the Act or at odds with its obliga-
tions thereunder to bargain collectively in good faith with the representative of its
employees in an appropriate unit 33
4. Concluding findings as to the alleged refusal to bargain through unilateral action
The record establishes that, on May 14 , Respondent unilaterally granted a gen-
eral wage increase of 12 cents an hour to employees in the unit who remained at
work during the strike. This was announced by Respondent through notices posted
in the plant shortly after the adjournment of the negotiation session on that day, to
be effective on May 17, the day the strike was to begin. In view of the fact, as I
have already found , that Respondent and the Union had arrived at an impasse on
the issue of wages, in view of my further finding that this stalemate or impasse on
wages did not occur in a context of a refusal to bargain in violation of the Act, and
since the , wage increase unilaterally granted was identical to that offered to the
Union before such impasse,34 the unilateral action taken by Respondent did not run
afoul of the Act, and I so find.35
33 Jake Lipsitz and Josephine Lspsitz, d/b/a American Sanitary Wipers Company, 157
NLRB 1092.
32 While the parties met again at the instance of Federal Mediator Young on August 13,
nothing significant occurred . There was no indication by either side of a change of position
83 General Electric Company , 150 NLRB 192, relied on by the Union to support a find-
ing of overall bad-faith bargaining is clearly distinguishable on its facts.
34 Although as the General Counsel points out, Respondent did not mention in its notice
that it had offered the same amount to the Union, I am satisfied that the employees were
conversant with this as they had voted on the 12-cent wage offer at the union meeting
on April 27.
35 See N L R B. v Crompton-Highland Mills, Inc, 337 U S. 217, 224, 225 ; N L R B v.
Andrew Jergens Co., 175 F 2d 130 (C A. 9), cert denied 338 US 827, Dallas General
Drivers Warehousemen and Helpers, Local Union No. 745, supra; and Bs-Rite Foods, use,
147 NLRB 59.
N LR B. v. Fitzgerald Mills Corporation , 313 F.2d 260 (C A. 2), enfg. 133 NLRB 8;77,
cited by the Union is distinguishable on its facts, among which is the fact that the cited
case did not involve a genuine impasse as here.
FRICK COMPANY 1107
5. Concluding findings as to the allegations of discrimination
in violation of Section 8(a)(3) and (1) of the Act
Paragraph 7 of the complaint, as amended at the hearing, alleges that Respond-
ent violated Section 8(a)(3) and (1) in two respects: (1) by removing from its
payroll and/or discharging its striking employees and (2) by refusing to pay vaca-
tion pay to such employees.
As to the former, I have found that, after the strike began, Respondent effected
a "Change in Employee Status" for all employees who went on strike and placed
a notice to that effect in each striker's official employee folder. The change was a
removal from the payroll "as a quit effective May 24," and the reason given on
the form was absence for 7 calendar days on an unauthorized basis in violation
of one of Respondent's Rules and Regulations as set forth in the Frick Employees'
Manual. The manual has been extant since 1956 and Respondent has followed the
practice of distributing and explaining it to every new employee. The rule states,
"An employee absent (7) consecutive calendar days for an unauthorized or unex-
plained reason will be considered to have quit the employ of the Company. His
name will then be removed from the payroll." The removal from the payroll was
thereafter confirmed to the striking employees by Respondent's letter of July 8
relating to vacation pay, which is discussed hereinafter and which conditioned the
payment to each employee of vacation pay upon his "return to [the] job and there-
by have [his] name again placed on [the Company] payroll, on or before July 14,
15 and 16."
Although the removal from the payroll was denominated by Respondent as a
"quit" in accordance with its rule, it is clear that to equate withholding of services
during a strike to a quit would do violence to Section 13 of the Act. And this is
so irrespective of any rule of Respondent which so provides either expressly or
impliedly and is made known and explained to the employees in advance.36 Rather,
do I find, that the removal from the payroll effected a termination of the employ.
ment relationship, tantamount to discharge,37 for engaging in protected strike
action.
The Board dealt with a related issue in National Seal, Division of Federal-
Mogul-Bower Bearings, Inc., 141 NLRB 661, a case involving a discharge of proba-
tionary employees who were absent because of a strike during their 60-day probation-
ary period in violation of a company rule that required probationary employees to
complete a 60-day period without interruption to become full-fledged employees.
The Board there said,
The Respondent might, as it contends, have lawfully discharged their proba-
tionary employees if their 60 day probationary period had been interrupted
because of excused absences, such as illness, since the Act affords no protec-
tion to employees who are absent because of illness or other similar reasons,
even if such absences are excused. Because the Act does, however, protect
employees who are absent because of strike activity, the Respondent may not
apply this 60 day rule to employees because of a strike.
The Board then cited its former holding in Quality Castings Company, 139 NLRB
928, and added, in part,
If an employer may not equate strike time to other forms of absence for the
purpose of forfeiting employees' rights in a profit sharing plan [the Quality
Castings Case], it surely may not equate strike time to normal absence for
the purpose of completely depriving employees of their jobs. The application
of the rule herein, equating strike absences to normal absences for such pur-
poses, necessarily interferes with the employees' right to engage in protected
concerted activity and discriminates against such employees.
As the instant case presents an a fortiori situation, in that, here, the discharged
employees were, in fact, full-fledged employees at the time of their discharge, I
find that the above-cited case is controlling here and conclude that, by removing
361 find no basis for concluding that the manual effected a contiactual ielationship be-
tween Respondent and its employees which protected Respondent in its conduct herein.
Further, I find no basis for concluding that the employees thereby impaired their fight
under the Act to strike. See, in this connection, Section 10 (a) of the Act.
37 See Liberty Electronics Corp. and Flight Electronic Supply Corp , 138 NLRB 1074, 1084.
1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strikers from the payroll because they were absent for 7 chronological days
under Respondent's rule, Respondent violated Section 8(a)(3) and ( 1) of the
Act.38
With respect to the allegation relating to vacation pay, I have already set forth the
details with respect to Respondent's vacation plan. There is no contention here
that any of the striking employees failed to fulfill the eligibility requirements of
having worked 75 percent of the pay periods during the year ending June 30, 1965;
however, the refusal, or withholding, of payment by Respondent is predicated on
the fact that the striking employees did not comply with that part of Respondent's
vacation provision set forth in its Employees' Manual which required them to be
at work on the Wednesday before the third full calendar week in July, which is
fixed as the vacation week. The significant date under the rule was thus July 14.39
Under date of July 8, Respondent dispatched a letter to all hourly paid employees
giving each one of them. "one more opportunity to qualify for vacation pay" i.e.,
provided the employee affected returned to' his job and had his name placed on
the payroll on,or before July 14 and worked on July 14, 15, and 16. Failure to
work on these 3 days meant forfeiture of vacation pay. The letter concluded with
"Are you going to return to work and become eligible for vacation pay? It's up
to you.,,,
The clear message of the letter was that by continuing on strike the strikers
were sure to lose their vacation pay and that the forfeiture could be avoided only
by returning to work and working on July 14, 15, and 16. It-is obvious that mere
compliance with the rule was not Respondent's condition, for Respondent imposed
the requirement of working not only on July 14, the day indicated by the rule, but
also on July 15, and 16. The condition was thus cessation of the strike activity.
This is understood' by the closing lines of the letter referred to above, viz, "Are
you going to return to work and thereby become eligible for vacation pay? It's
up, to you."
It is evident, and I find, that the rule of the Quality Castings case that time on
strike may not be considered the equivalent of normal absence for the purpose of
determining profit-sharing forfeiture compels the conclusion that Respondent, by
treating the time on strike on Wednesday, July 14, as the equivalent of an unex-
cused absence•on that day for the purpose of determining vacation pay forfeiture,
violated Section 8(a ' ) (3) and (1) of the Act. Here, as there, the conduct is vul-
nerable (1) because, in equating strike time to unexcused absence, it contravened
the right of employees under the Act to engage in protected strike activity, and/or
(2) it was illegally motivated. The latter is apparent from the fact that Respond-
ent conditioned payment of vacation pay on cessation of the strike, endeavoring
thereby to utilize the vacation pay rule and payment thereunder as a device or lure
to undercut or break the strike.
6. Concluding findings as to the allegations of promises
of benefits and threats of reprisal
I have already found that beginning about July 9 and 'extending into August,
Respondent, through its supervisors, made overtures to return to work to striking
employees either in person at their homes , or at or near the picket line, or over
the telephone. It is apparent from the testimony of Supervisors Kirkpatrick, Orner,
McNew, Poole, and Martin that some of these overtures included statements relat-
ing to vacation pay forfeiture similar to that contained in Respondent's letter dated
88 Although the Board 's decision was thereafter set aside in N.L.R.B . v. National Seal,
Division of Federal-Mogul-Bower Bearings , Inc., 336 F.2d 781, I am nevertheless bound
by the Board 's decision under the rule of Insurance Agents International Union, AFL-CIO
(The Prudential Insurance Company of America ), 119 NLRB 768. Moreover , the consid-
erations which persuaded the court thereto strike a balance in favor of the employer,
namely, the sole motive of the employer that all probationary periods be continuous and
unbroken and the fact that the employer acted pursuant to a rule of longstanding which
had been rigidly enforced , are not present here . This is so because, as already noted, no
considerations relating to qualifying for permanent employment on the work force are
present in this case.
The fact also that the Quality Castings case was set aside in Quality Castings Com-
pany v. N.L.R .B., 325 F .2d 36 ( C.A. 6), does not, for the reasons given above , detract
from its binding effect upon me.
80 Under the rule, vacation pay was to be paid during the week preceding the vacation
week.
FRICK COMPANY 1109
July 8 to its employees, which I have already found violative of the Act. Accord-
ingly, for the same reasons, I find that insofar as these overtures represented an
implementation of the above letter, they coerced the employees in violation of
Section 8 (a)(1) of the Act. That this is so is underscored by the undenied testi-
mony of Plum, which I credit, that, in the latter part of July, Supervisor Poole
told him over the telephone that, "if this things get broke up [sic], you might
get your vacation pay," the reference in this context. being, I find, to the breaking
up of the strike.
During these overtures, according to the testimony of employees Riber, Stoops,
Beard, Hartman, Plum, Carbough, and Nunemaker, they were told by Supervisors
McNew, Poole, Newlon; Kirkpatrick, Orner, or Martin as, the case may be,40 that
if they did not return to work on the date given they would' have no job and/or
would have to be hired as,new employees. While McNew,, Newlon, Poole, Kirk-
patrick, and Omer denied making such remarks, Martin made a qualified denial,
saying that he told Nunemaker that Respondent was "hiring people and he [Nune-
maker] would have to go to personnel." I credit the testimony of Riber, Stoops,
Beard, Hartman, Plum, .Carbough, and Nunemaker over these denials. I do so
because their testimony is more consistent with the probabilities of the situation,
Respondent having theretofore removed them from the payroll as "quits," and
because 'I find that Martin's testimony -quoted above, in effect, impiles that Nune-
maker would have to be hired just like other new hires.
1, also, credit Stoops' testimony that he asked Kirkpatrick and Orner, in that
order, whether he would be given a recommendation if he, Stoops, should seek
employment elsewhere and that, first, Kirkpatrick, and then Orner said, "no."
Kirkpatrick did not testify concerning this but Omer testified that, "there was some
[sic] mentioned if he would ask for a recommendation would he give it," that he,
Orner, did not answer and, to his knowledge, Kirkpatrick did not answer. In view of
the extent to which the testimony of Omer corroborates that of Stoops, I find that
the content of the conversation as to a recommendation was as Stoops testified. -
I do not, however, credit the testimony of Hartman, which is denied by Kirk-
patrick, that the latter threatened him with a 10-cent or-15-cent cut if he was later
rehired or the tesimony of Cool that Martin told him that, if he was'later rehired,
-there was a possibility he would not get the 12-cent wage increase. I note, in this
latter connection, that Cool testified that in a subsequent overture to him, Martin
said he would still get the 12-cent wage increase. In view of the fact that none of
the other employees approached by either Kirkpatrick or Martin testified to a
similar threat to them, and in view of the unlikelihood that Martin would have
acted so inconsistently on two different occasions, and also in view of the overall
probabilities of the situation, I find that the evidence falls short of establishing that
either Kirkpatrick or Martin threatened a wage cut if these strikers did not return
at the time indicated and were later rehired.
Nor do I credit the testimony of Fetterhoff that Foreman Benchoff threatened
to replace him with two individuals, i.e., Earl Bare and Clarence Pebble, if he was
not back in the plant operating the crane as formerly for Benchoff by the next
morning. The unlikelihood of such a remark by Benchoff stems from the fact that
Bare and Pebble were both on strike at the time and the further fact, to which
-Benchoff credibly testified, that only one of these two named individuals work
for him.
While there was also testimony that during some of these overtures the super-
visors involved talked about the possibility of the factory or foundry being shut
down or changed over to another type operation if enough strikers did not return,
I find no basis for a violation in these statements as they fall short of a threat
and constitute mere predictions of what would eventuate if circumstances were such
that Respondent could not continue operating as theretofore.
In sum, therefore, I find that Respondent's overtures to the strikers were violative
of Section 8(a)(1) of the Act, (1) in that they served to implement Respondent's
letter, dated July 8, to its employees and thereby coerced the strikers; (2) in that
during some overtures certain. supervisors, named above, coercively threatened the
strikers that, if they did not return to work on the date mentioned by them for
such return they would have no job and/or would have to be hired as new employ-
ees and/or would not be recommended for another job; and (3) especially in view
'0 McNew to Riber , Poole to Plum, Newlon to Carbough , Kirkpatrick and Orner to Stoops,
Beard, and Hartman, each being spoken to separately.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of my finding hereinafter that the strike which began as an economic strike was
converted into an unfair labor practice strike as early as July 9, in that the state-
ments of these supervisors during the overtures urging the employees to- abandon
the strike and return to work, constituted attempts to deal with the striking employ-
- ees directly rather than through their Union, the majority representative 41
7. Concluding findings- as to the allegation of surveillance
It is not disputed that Industrial Relations Director Hoff and Chief of Plant
Guards Miller drove to the entrances of the Fairchild plant and the Mack Truck
plant in Hagerstown on July 9 for the express purpose of taking photographs of
those. individuals who were soliciting strike funds in behalf of the Union at the
- plant gates of these companies, that seven photographs were taken from the car
,at close range at the various gates of the solicitors, among whom were Frick
employees, and that this was done, "for the purpose of identification," Respondent
being interested in knowing whether the solicitors for strike funds were actually
Frick strikers and whether there might be in the solicitation group employees from
other plants.
I am satisfied that this form of scrutiny of employees' union activities constitutes
surveillance, which- has been condemned by the Board and courts because experi-
ence has shown that employers will resort to labor espionage or surveillance for
-the purpose of obstructing and destroying employees' self-organizational rights and
activities 42 The fact that this occurred away from the Frick plant is, of course, no
defense.43 Nor can it be said that this conduct served a legitimate function in the
-employer-employee relationship. In all these circumstances, I conclude and find
-that the taking of photographs of the solicitors for strike funds at the plants of
these two companies constituted surveillance in violation of Section 8(a)(1) of
the Act.44
8. Concluding findings as to the nature of the strike
While Respondent's conduct during the bargaining was not a contributing factor
to the cause of the strike, I am persuaded that the unfair labor practices which
occurred thereafter prolonged the strike. As already found, such unfair labor prac-
tices occurred in the form of (1) surveillance on July 9, (2) the letter dated July 8
which was mailed to the employees concerning forfeiture of vacation pay if they
continued striking and did not return to work by July 14, and the actual forfeiture
of strikers' vacation pay as threatened, and (3) the overtures to strikers beginning
July 9 and extending into August in implementation of the letter of July 8, and
the threats during this period that if strikers did not return to work on the date
mentioned that they would have no job and/or would have to be hired as new
employees, or would be refused a recommendation for another job. Furthermore,
that the foregoing conduct, in fact, tended to prolong the strike appears from the
credible testimony of employees Cool and Nunemaker. Thus, Cool testified that
he told Martin during an overture by the latter 2 or 3 weeks after July 14 that, "I
figured that maybe I should have come back into work but I could see, no reason
why at this time. The vacation was gone." 45 And Nunemaker testified that when
Martin visited him at his home, 'he told Martin, "there wouldn't be no [sic] use
for [his] going back" if he had to do so as a new employee since he would lose
almost 10 years of seniority thereby. In sum, Respondent by its deliberate unlawful
course of conduct beginning on July 9, soon after the last negotiation session on
July 7, aggravated its differences with the Union and created new and serious
41 See Stark Ceramics Inc, 155 NLRB 1258.
11 See Wallace Press, Inc., 146 NLRB 1236; Calvert Dairy Products Company, 136 NLRB
1508; Preston Feed Corporation, 134 NLRB 629
43 See Kohler Co, 128 NLRB 1062, 1099 (surveillance at strike headquarters).
44 In this connection, I find credible the undented testimony of Stoops that, during the
visit by Kirkpatrick and Orner to his home on July 12, Kirkpatrick, when inquiring about
his return to work, mentioned that he had pictures but would not elaborate ; I also find
credible the testimony of Beard that Kirkpatrick told him during the visit of Kirkpatrick
and Orner to his home on July 12 that Respondent does not want some employees back,
naming Stoops and saying , "Boy we got the goods on him, we got pictures and everything
of him " Kirkpatrick and Orner denied making any reference to pictures.
41 While I have theretofore credited Martin in one instance where his testimony con-
troverted that of Cool, the instant testimony is not controverted and I find it credible.
FRICK COMPANY
impediments to the settlement of the strike with the results that the strike, economic
in origin, was prolonged and consequently converted into an unfair labor practice
strike as of July 9 .46
Upon the basis of the entire record, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of
the Act.
3. By removing employees on strike from the payroll as "quits" because they
engaged in protected, concerted and union activity, Respondent has engaged in dis-
crimination in-regard to hire and tenure of employment of its employees within the
meaning of Section 8(a)(3) of the Act.
4. By effecting a forfeiture of vacation pay of employees on strike because they
engaged in protected, concerted and union activity, Respondent has engaged in dis-
crimination in regard to terms and conditions of employment of its employees
within the meaning of Section 8(a)(3) of the Act.
5. By the foregoing conduct and by threats to strikers of vacation pay forfeiture,
of loss of job, of rehire only as new employees, and of refusal of a recommendation
for another job, by dealing with employees in an effort to persuade them to aban-
don a strike called by the Union, which had become an unfair labor practice strike
at the time, by engaging in acts of surveillance through photographing strikers who
were soliciting strike funds at the plant gates of other companies, Respondent has
interfered with, restrained, and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act, and thereby engaged in, and was engaging in,
unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
7. Respondent has not refused to bargain collectively with the Union in violation
of Section 8(a)(5) of the Act.
THE REMEDY
I have found that Respondent has engaged in unfair labor practices and I shall
recommend that Respondent cease and desist therefrom. These unfair labor prac-
tices include discrimination by Respondent against the strikers by terminating them
as of May 24, 1965, through changing company records of each striker to show that
he had "quit." However, since I have found further that the strikers did not learn
about this until July 9 or thereafter, I have concluded that the strike, which was
in progress at the hearing, was prolonged by Respondent's unfair labor practices
commencing on July 9, 1965, and not on the earlier date of the aforesaid termina-
tion. I have further concluded that the economic strike was converted on July 9,
1965, into an unfair labor practice strike. Employees who were on strike on the
latter date and thus became unfair labor practice strikers were, in consequence,
entitled to reinstatement upon application irrespective of whether their positions
have been filled by Respondent's hire of other employees as replacements for them.
It is, of course, clear that in order to restore the status quo as it existed just prior
to the conversion of the strike on July 9, 1965, and thereby to effectuate the policies
of the Act, an appropriate remedy would require Respondent (1) upon application
to offer reinstatement to their former or substantially equivalent positions, without
prejudice to their seniority or other rights and privileges, to all its employees who
were on strike on and after July 9, 1965, and had not been replaced as of that
a See N L R.B. v. Trinity Valley Iron and Steel Company, a Division of C. C. Griffin
Manufacturing Company, Inc, 290 F.2d 47 (C.A. 5), enfg 127 NLRB 417; Comfort
Springs Corporation, 143 NLRB 900.
While I have also found that, as of May 24, Respondent removed the names of the
strikers from its payroll and changed their status to that of "quit" in violation of Section
8(a) (3)" and (1) of the Act, the first notice to strikers bearing upon this was Respondent's
letter of July 8 to them, telling them, inter ilia, that their names had been removed from
the payroll. Accordingly, this unlawful conduct could not have become an operative factor
in prolonging the strike until July 9 or thereafter, and I so find.
1112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date, dismissing , if necessary , any persons hired after that date and (2) to make
whole such employees who were on strike on and after July 9 , 1965, for any loss
they may have suffered by reason of Respondent 's refusal, if any, to reinstate them,
by payment to each of them a sum of money equal to that which he normally
would have earned as wages during the period commencing 5 days after the date
on which he applied for reinstatement . Such a remedy would then be adequate as
to all strikers who had not been replaced as of July 9, 1965, but would make no
provision as to those terminated as of May 24, and who may have been replaced
prior to July 9, 1965, but after May 24 and who are likewise entitled to reinstate-
ment and backpay under the same terms, because of , the discrimination against
them 47 Accordingly, because of their unlawful termination and/or their rights as
unfair labor practice strikers , I shall recommend that the remedy described above
be made operative as to all strikers who had not been replaced as of May 24, 1965.
Backpay, with interest at the rate of 6 percent per annum shall be computed in
the manner set forth in F. W. Woolworth Company, 90 NLRB 289 , and Isis
Plumbing & Heating Co., 1,38 NLRB 716.
Also included among the unfair labor practices found herein is Respondent's
conduct of withholding or refusing to pay vacation pay to strikers, which vacation
pay had accrued as of June 30 , 1965. To remedy this violation , I shall recommend
that Respondent pay to each striker the amount -, of vacation pay which accrued
as of June 30 , 1965, together with interest at 6 percent from July 16, 1965, the
date on which it would otherwise have been paid.
In view of the nature of the unfair labor practices engaged in by Respondent,
I shall also recommend that it cease and desist from infringing in any other manner
upon the rights guaranteed employees by Section 7 of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and
upon the entire record in this case, I recommend that Respondent , its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Discouraging membership in International Union , United Automobile, Aero-
space and Agricultural Implement Workers of America, AFL-CIO, or any other
labor organization of its employees , by removing them from its payroll as "quits,"
or by withholding vacation pay, or in any other manner discriminating against
any employee in regard to his hire,, tenure, or any other term or condition of
employment.
(b) Threatening strikers with vacation pay forfeiture , with loss of job, with
rehire only as. a new employee , or with refusal of a recommendation for another
job.
(c) Dealing with individual employees in an effort to persuade them to abandon
a strike called by their union.
(d) Engaging in acts of surveillance through photographing strikers who are
soliciting funds at the plant gates of other companies.
(e) In any other manner interfering with, restraining , or coercing its employees
in the exercise of their right to self-organization , to form labor organizations, to
join or assist International Union, United Automobile , Aerospace and Agricultural
Implement Workers of America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own choosing , or to engage in
other concerted activities for the purpose of collective 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 affected by an agreement requiring membership in a labor
organization as a condition of employment , as authorized by Section 8(a)(3) of
the Act, as amended.
2. Take the following affirmative action designed to effectuate the policies of
the Act:
(a) Upon application , offer reinstatement to their former or substantially
equivalent positions, without prejudice to their seniority or other rights and privi-
leges, to all employees who were on strike on and after May 24, 1965 , and had
not been replaced as of that date , dismissing , if necessary, any persons hired after
47 See Sakrete of Northern California, Inc, 140 NLRB 765
FRICK COMPANY 1113
that date and make each such employee whole for any loss of earnings he may
have suffered, in the manner set forth in the section hereof entitled "The Remedy."
(b) Pay to each striker the full amount of vacation pay which accrued to him
as of June 30, 1965.
(c) Notify any of its employees who were on strike on and after May 24, 1965,
and not replaced as of that date if presently serving in the Armed Forces of the
United States, of his right to full reinstatement in accordance with the Selective
Service Act and the Universal Military Service and Training Act, as amended,
after discharge from the Armed Forces.
(d) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security records, timecards,
personnel records and reports, and all other records necessary or useful to deter-
mine or compute the amount of backpay due, as herein provided.
(e) Post at its plant premises in Waynesboro, Pennsylvania, copies of the
attached notice marked "Appendix." 48 Copies of said notice, to be furnished by
Region 6 of the Board (Pittsburgh, Pennsylvania), after being duly signed by
Respondent's representative, shall be posted by Respondent immediately upon
receipt thereof, in all places where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(f) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.49
IT IS FURTHER ORDERED that those allegations of the complaint alleging viola-
tions of Section 8(a)(5) and additional violations of Section 8(a)(1) of the Act
not found herein, be, and they hereby are, dismissed.
M In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United
States Court of Appeals, the notice shall be further amended by the substitution of the
words "a Decree of the United States Court of Appeals Enforcing an Order" for the words
"a Decision and Order."
4e In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within
10 days from the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers of America, AFL-
CIO, or any other labor organization of our employees , by removing them
from our payroll as "quits," or by withholding vacation pay, or in any other
manner discriminate against any employee in regard to his hire, tenure, or
any other term or condition of employment.
WE WILL NOT threaten strikers with vacation pay forfeiture, with loss of
job, with rehire only as a new employee, and with refusal of recommendation
for another job.
WE WILL NOT attempt to deal individually with our employees in an effort
to persuade them to abandon a strike called by the aforementioned Union.
WE WILL NOT engage in acts of surveillance through photographing strikers
who are soliciting strike funds at the plant gates of other companies.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form, join, or
assist a labor organization, to bargain collectively through a bargaining agent
chosen by themselves, to engage in other concerted activities for the purposes
of collective bargaining or other mutual aid or protection; or to refrain from
1114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any such activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a condition
of employment, as authorized by Section 8(a)(3) of the Act, as amended.
WE WILL offer reinstatement, within 5 days of application therefor, to their
former or substantially equivalent positions, without prejudice to their senior-
ity or other rights and privileges, to all employees who were on strike on
and after May 24, 1965, and had not been replaced as of that date, and WE
WILL pay each of them for any loss suffered by him because of our discrimina-
tion against him.
WE WILL pay to each striker the full amount of vacation pay which accrued
to him as of June 30, 1965.
All our employees are free to become or remain, or to refrain from becoming
or remaining , members of any labor organization.
FRICK COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon appli-
cation in accordance with the Selective Service Act and the Universal Military
Training and Service Act, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1000
Liberty Avenue, 1536 Federal Building, Pittsburgh, Pennsylvania 15222, Telephone
644-2977.
Local 545, International Union of Operating Engineers, AFL-
CIO (Joseph Saraceno & Sons, Inc.) and William M. Ahles, Sr.
Case 3-CB-907. November 16, 1966
DECISION AND ORDER
On July 13, 1966, Trial Examiner David S. Davidson issued his
Decision in the above-entitled proceedings, finding that Respondent
had engaged in and was engaging in certain unfair labor practices
alleged in the complaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief. The General
Counsel filed exceptions and a memorandum in support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins,.
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 Trial
Examiner's Decision, the exceptions, brief, memorandum, and the
161 NLRB No. 100.