Radiator Specialty Co.

National Labor Relations Board - Board Decisions

Jun 28, 1963

143 N.L.R.B. 350 (N.L.R.B. 1963)

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT by threat of reprisal or promise of benefit induce or encourage
our employees to vote for or against , or by such means solicit our employees to
induce other of our employees to vote for or against , the above-named Union
or any other labor organization in any election conducted by the National
Labor Relations Board.
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their rights to self-organization; to form, join,
or assist any labor organization ; to bargain collectively through representatives
of their own choosing ; to engage in concerted activities for the purpose of col-
lective 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 in Section 8(a)(3) of the National Labor Relations
Act, as amended.
WE WILL NOT in any manner interfere with the right of our employees to
make a free and untrammeled choice in any election ordered by the National
Labor Relations Board.
All our employees are free to become , remain , or to refrain from becoming or
remaining , members of any labor organization , except to the extent that this right
may be affected by an agreement conforming to the provisions of Section 8(a)(3)
of the National Labor Relations Act, as amended.
INDUSTRIAL STEEL PRODUCTS COMPANY, INC.,
Employer
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana , 70113,
Telephone No. 529-2411, if they have any question concerning this notice or com-
pliance with its provisions.
Radiator Specialty Company and United Rubber, Cork , Linoleum
and Plastic Workers of America , AFL-CIO. Cases Nos. 11-CA-
1891, 11-C.4-1950, and 11-CA-2086. June 08. 1963
DECISION AND ORDER
On April 29, 1963, Trial Examiner Samuel M. Singer issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].'
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 In-
' Respondent ' s request for oral argument before the Board is hereby denied, as the
record and the exceptions adequately present the issues and positions of the parties
143 NLRB No. 42.
RADIATOR SPECIALTY COMPANY 351
termediate Report, the exceptions, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed February 2, 1962, and upon amended charges filed May 11,
1962, and January 24, 1963, respectively, by the United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, herein called the Union, the General
Counsel on January 25, 1963, issued an amended consolidated complaint alleging
that Radiator Specialty Company, herein called Respondent or the Company, has
violated Section 8(a)(1), (5), and (3) of the Act by engaging in certain acts of
interference, restraint, and coercion; by refusing and failing to bargain collectively
in good faith with the Union; and by failing and refusing to reinstate unfair labor
practice strikers. Respondent in its answer denied the commission of the alleged
unfair labor practices.
Pursuant to notice, a hearing was held before Trial Examiner Samuel M. Singer
in Charlotte, North Carolina, on February 4 through 8, 1963. The parties, except
the Charging Party, were represented by counsel. Oral argument was waived and,
although afforded an opportunity to submit briefs, none was filed either by the
General Counsel or the Respondent.' Respondent's motion to dismiss the com-
plaint, made at the close of the hearing, is now disposed of in accordance with the
findings and conclusions made below.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a North Carolina corporation owning and operating a plant in
Charlotte, North Carolina, where it is engaged in the manufacture of automobile
products and rubber specialties. During the past 12 months, a representative period,
Respondent manufactured finished products valued in excess of $50,000 and sold
and shipped finished products valued in excess of $50,000 to points and places out-
side the State of North Carolina from its Charlotte, North Carolina, plant. I find
that Respondent was at all material times engaged in commerce within the meaning
of the Act, and that it will effectuate the policies of the Act to assert jurisdiction
herein.
II. THE LABOR ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO, is
a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Sequence of events
On June 22, 1961, the Union filed a petition for certification as the majority
representative of Respondent's employees. After a hearing on the petition on July
21, an election was conducted by the Regional Director on September 7, 1961. The
Union won the election by an approximately 2-to-1 vote and on September 15, 1961,
it was certified as the statutory representative of Respondent's production and main-
tenance employees.2
1 As we shall see below, the instant case presents substantial questions of fact and law.
In the absence of briefs I looked to the pleadings, the statements of counsel at the hearing,
and the nature of the evidence adduced by them, to determine the parties' positions on the
Issues.
2 The appropriateness of the unit is not in issue.
352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The original charge filed herein by the Union on February 2, 1962 (Case No.
11-CA-1891), alleged that Respondent had interfered with, restrained, and coerced
its employees in the exercise of their organizational rights in violation of Section
8(a)(1) of the Act. In April 1962, Respondent and the Union entered into an
agreement settling the charges and this agreement was approved by the Regional
Director on April 30, 1962. The settlement agreement provided for the posting of
a notice which was attached to the agreement. It further provided that "The
Employer will comply with all the terms and provisions of said notice." These
terms and provisions were that the Company will not interrogate its employees con-
cerning their union membership and activities in violation of the Act; "solicit, pay
or encourage employees to persuade other employees to withdraw their support
from the Union and vote against the Union" in Board elections; threaten employees
with discharge and other reprisals, including loss of benefits in order to discourage
union or concerted activities; threaten employees "by creating an impression" that
their union activities were under surveillance; and threaten employees by inform-
ing them that the Company "will not let the Union in, nor bargain with the Union,
nor . . sign a contract with the Union." Finally, the notice stated that the Com-
pany will not "in any other like or related manner interfere with, restrain or coerce
our employees in the exercise" of the rights guaranteed in Section 7 of the Act.
In the meantime at the end of September 1961, the Union requested the Company
to bargain with it and the parties thereafter held 37 meetings between October 4,
1961, and August 7, 1962. The amended complaint based on the amended charge
in (11-CA-1950) alleges that the Company failed and refused to bargain in good
faith during the negotiations; and that beginning with November 16, 1962, it refused
to meet with the Union altogether, all in violation of Section 8(a) (5) of the Act.
On May 15, 1962, during the period of the negotiations, the Union called a
strike. On or about January 9, 1963, the Union indicated that the strikers were
ready to return to work and the Union and the employees requested reinstatement.
The amended complaint (based on the amended charge filed in Case No 11-CA-
2086) alleges that Respondent has failed and refused to reinstate 153 strikers to
their former or substantially equivalent positions and it thereby violated Section
8(a)(3) of the Act.
The amended complaint further alleges that since on or about May 1, 1962 (sub-
sequent to the execution of the settlement of the Section 8(a) (1) violations charged
in Case No 11-CA-1891, supra), Respondent has again engaged in acts of inter-
ference, restraint, and coercion, including unlawful threats of reprisals. Accord-
ingly, the Regional Director states in the complaint that he has vacated and set aside
the settlement agreement which he had approved on April 30, 1962, and the
amended complaint alleges as violations of Section 8(a)(1), Respondent's alleged
acts of interference, restraint, and coercion both prior and following the settlement
agreement.
B. Alleged interference, restraint, and coercion
Since, as we have seen, the amended complaint alleges coercive conduct after
the settlement agreement as well as before it, the threshold question before me
is the effect of the settlement agreement on the prior conduct. I cannot accept
Respondent's contention made at the hearing that the settlement agreement "wiped
out charges of violations that were embodied in it" as long as "the Company did
what the settlement agreement called on it to do, namely, posted the notice that it
stipulated." 3 The rule is well settled that independent or continuing violations
of the Act constitute a breach of a settlement agreement and justify the Regional
Director in setting aside that agreement and proceeding with a complaint which
covers both presettlement and postsettlement violations. The Wallace Corpora-
tion v. N L.R B., 323 US 248, 253-255; W. Ralston & Co., Inc. and Technical
Tape Corporation, 131 NLRB 912, 917, enfd. 298 F. 2d 927 (C A. 2); International
Brotherhood of Teamsters, Chaui ears, Warehousemen and Helpers of America,
General Drivers and Helpers, Local No. 554, AFL-CIO (Clark Bros Transfer Co.,
et al.) v. N.L R B., 262 F. 2d 456, 460-461 (CAD C.). A Board proceeding is
designed to protect the public interest and the Board may-if indeed it is not re-
quired to-set aside a settlement agreement which has failed of its purpose. If,
therefore, there was in this case substantial unlawful conduct following the settle-
ment agreement, the Regional Director was wholly justified in vacating the agree-
ment and in proceeding with a complaint which covers both presettlement and
3 Actually the settlement agreement, in addition to requiring posting of the notice,
specifically required that "the Employer will comply with all the terms and provisions of
said notice"
RADIATOR SPECIALTY COMPANY 353
postsettlement conduct . Lincoln Bearing Company , 133 NLRB 1069 , 1073-1074,
enfd. in this respect 311 F. 2d 48 (C.A. 6). I therefore first turn to a consideration
of the postsettlement violations allegedly committed by Respondent.
1. The postsettlement conduct
a. Henry Hall
Employee Culbert testified that sometime during the first week of May 1962,
after Respondent had posted the notice provided for in the settlement agreement, he
and employees Coleman, Rountree, and Curtis Thompson were standing around the
drinking fountain and were discussing the likelihood of a strike? Culbert asked
Henry Hall, an admitted supervisor who was standing nearby, "what would happen
if we went on strike." Hall replied that "if you go on strike, you will be fired, and
they will get other workers to come in." Culbert testified that Hall went on to
say that the Company would not sign a contract and that it would close the plant.
Coleman, Rountree, and Thompson corroborated Culbert's testimony and Culbert's
prehearing affidavit signed on May 24, 1962, which is in the record, is fully consistent
with Culbert' s recollection of the incident.
Gertrude Ford, a member of the Union 's negotiating committee , testified that
almost "constantly " after the negotiations started, including the period after the
notice was posted, Foreman Hall would question her about the progress of the
negotiations after returning from bargaining meetings . When Ford would say that
little or nothing was accomplished, Hall would reply, "Well, see, what did I tell you?
You're not going to get a union, you 're not going to get a contract ." 5 Ford also tes-
tified that in May 1962 , before going on strike , Hall, who was her supervisor , said to
her that she was doing good work but "it's too bad you had to mess up with the
union ... You are going to be hurt.... In fact, a lot of good people are going
to be hurt. If you go out on strike, you are going to be discharged."
Foreman Hall flatly denied the remarks attributed to him by Coleman, Rountree,
Thompson, and Ford, stating that he had never discussed with employees the sub-
ject of contract or strike . On cross -examination , however, he admitted that he did
discuss the strike with employees "to the extent that the Company would main-
tain production, that we would have to maintain production." Be also admitted
that when Ford would return from bargaining sessions he would "occasionally" ask
her "how things had gone." Hall also admitted having had discussions with Cul-
bert. Under all the circumstances, including my observations of the demeanor of
the witnesses while testifying, I do not credit Hall's denials. It is hardly likely
that Hall, who admittedly talked to the employees about union matters, did not
also address himself to the subject of contracts and the employees' concern about
their job security which, during the period in question (the first week in May), was
uppermost in the minds of the employees. I credit the testimony of employees
Culbert, Coleman, Rountree , and Thompson, whose testimony was mutually cor-
roborative, and that of Ford who appeared to me to be a credible witness.6
b. Norbert J. Welch
Employee Gates, who, like Ford, was a member of the Union 's negotiating com-
mittee, testified that Foreman Welch had questioned him also about the progress
of the negotiations. When, on one occasion around May 1, 1962, Gates told Welch
that the Union would go on strike, Welch allegedly told him: "I hate to see you
go on strike; you have your family and kids to look forward to; you have a great
future in front of you." According to Gates, Welch, in answer to Gates' question
as to "what would happen" in case of a strike, replied that Gates "would be dis-
charged." Welch frankly admitted talking to Gates about the strike but he claimed
4 The possibility of a strike was at that time a matter seriously under consideration
by the Union The Union in fact called a strike on May 15, 1962.
6 Employee Patton testified that she worked near Hall ' s desk and that she overheard some
of these conversations She stated that when Ford would remark that nothing much was
accomplished , Hall would say, "You are just wasting your time because Mr Blumenthal
(the company president ) is not going to sign a contract"
0 In making the finding regarding Hall ' s threat to discharge employees if they went
out on strike , I have not overlooked the fact that the Company on January 17, 1962, sent
its employees a letter ( infra ) In which the Company , although seeking to discourage strike
action , did not go so Bar as to threaten discharge In my view, this letter , written about
4 months before the events here in question , did not operate to neutralize hall's coercive
remarks.
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that he merely told him that "the plant was going to work" and "if we had to replace
the employees we would."
I credit Welch's version of the incident rather than Gates'. Gates was one of
the champions of the Union's cause in the plant, who, as related in detail infra,
artfully posed to the Company as an antiunion employee and thereafter collaborated
with Respondent 's plant manager (McKiernan ) and personnel manager (Waggoner)
in devising a program for defeating the Union in the then pending election. The
revelation that Gates was in fact a union leader came to the Company when Gates,
after the election, made his appearance as a member of the employee negotiating
committee which, according to the record, was in December 1962. I cannot believe
that in the light of these circumstances any company supervisor would have expressed
any concern about Gates' future with the Company. Moreover, Welch appeared
to me to be a more credible witness than Gates , and I accept Welch 's testimony
rather than Gates'. Accordingly, I find that the foregoing alleged threat was not
in fact uttered by Welch.
c. George McKiernan
Employee Barbara Ellerbe, another member of the Union 's negotiating commit-
tee, testified that around the second week of May 1962 (when the Union in meetings
with the Company had been discussing the possibility of a strike) she approached
Plant Manager McKiernan at work and asked him what would happen to her job
in case of a strike. According to Ellerbe, McKiernan said that he could not tell
her what to do in case of a strike but that if she walked out she would be discharged.
McKiernan allegedly also said, "You people should stop and think of what you
are doing before you walk out." McKiernan admitted that he had discussed the
question of the strike with Ellerbe when the latter asked him what would happen
in the event of a strike. He testified, however, that all he said was: "Barbara, you
sit in these negotiation meetings just like I do; you have heard what was said, and
we did say that we would replace the people, if they walked out."
Under all the circumstances I credit McKiernan 's version of the incident in this
instance rather than Ellerbe's. McKiernan 's explanation of the incident appears
adequate and plausible. And it is hardly likely that McKiernan, who as the record
shows, was no novice in dealing with unions and union matters , would openly com-
municate an outright threat to a member of the Union 's negotiating committee.
1 am convinced that if McKiernan had been disposed to coerce Ellerbe , he would
have done so in a more subtle and circumspect manner.
d. Julius Waggoner
Delphia Erwin testified that on May 15, 1962, the first day of the strike , Personnel
Manager Waggoner (an admitted supervisor ) called her to return to work , promis-
ing her protection if she did so. Erwin was on pregnancy leave at the time, but
she promised to report. Erwin apparently changed her mind and, according to
her testimony, the next day Waggoner called her again, requesting her to report if
she valued her job with the Company, promising her permanent employment so,
long as the Company existed if she reported for work, but warning her that she
would "never have a job" if she did not. Erwin did not in fact report to work.
Alberta Bennett testified to a somewhat similar call from Waggoner on the first
day of the strike. Bennett testified that she reported for work on May 15, 1962,
but that she did not actually work because of the pickets around the plant; and
that later in the evening she received a call from Waggoner who told her "if I report
to work tomorrow . . . that I could get my job back with an increase in my salary,
but if I didn't, that I would be fired." Bennett refused to work.
Waggoner flatly denied the conversation attributed to him by Bennett, but he
made no specific reference to the conversation attributed to him by Erwin. I do
not credit Waggoner's denials. Waggoner did not appear to me to be a wholly
forthright witness. He was frequently argumentative and evasive on the witness
stand and I could detect a tone of hostility in his responses that belied a forthright
attitude. On the other hand, Erwin and Bennett testified with apparent candor
and there is nothing in the record which would justify the repudiation of their
testimony.
Conclusions Respecting Respondent's Postsettlement Conduct
In view of all of the foregoing , I find that Respondent has, since the execution
of the settlement agreement on April 30, 1962, interfered with , restrained, and
coerced its employees in violation of Section 8(a)(1) of the Act by the following
RADIATOR SPECIALTY COMPANY 355
conduct of its supervisors which, in my view, tended to coerce the employees in the
exercise of their rights guaranteed in Section 7 of the Act:
(a) Supervisor Henry Hall's threatening remarks to employees Coleman, Roun-
tree, and Thompson to the effect that they would be fired if they went on strike,
that the Company would not sign a contract with the Union, and that it would close
the plant.
(b) Hall's statement to employee Ford that the Company would not sign a
contract, that she and other employees are hurting themselves by "messing" with
the Union, and that she would be discharged if she went out on strike.
(c) Personnel Manager Waggoner's solicitation of employee Erwin on the first
day of the strike to return to work if she valued her job, promising her benefits if
she did and threatening her with reprisal if she did not .7
(d) Waggoner's similar solicitation of employee Bennett to return to work on
the first day of the strike, promising her benefits if she returned and threatening her
with reprisals if she did not.
I find that Respondent did not violate Section 8(a)(1) by Foreman Welch's
alleged threat to employee Gates and Plant Manager McKiernan's alleged threat to
employee Ellerbe-which threats, as I found, were not in fact uttered.
I find that the Respondent, by reason of the conduct of Supervisor Hall and
Personnel Manager Waggoner described, above, did engage in substantial unlawful
conduct which constituted a breach of the settlement agreement and justified the
Regional Director in vacating the agreements I conclude, therefore, that the ques-
tion of the legality of Respondent's presettlement conduct is properly before me.
I now turn to a consideration of that conduct.
2. The presettlement conduct
a. The Company's alleged formation of, and support to, a committee to solicit
and encourage the defeat of the Union
The General Counsel adduced considerable testimony and evidence purporting
to show that around the second week of August 1961, Plant Manager McKiernan
and Personnel Manager Waggoner induced employee James D. Gates to form a
committee to solicit and encourage employees to defeat the Union in the forth-
coming Board election scheduled for September 7, 1961; and that Respondent had
contributed financial and other support to this committee. Gates testified that on
or about August 14, Supervisor Ball, after some discussion of the union campaign,
took him to see McKiernan and Waggoner; that McKiernan suggested that he form
a committee to defeat the Union in the election; that McKiernan supplied him the
names of several committeemen, although he in turn suggested changes in the com-
position of the committee; that he and another committeeman whom he proposed,
James M. Gaither, thereafter secretly met with McKiernan and Waggoner at the
airport some distance from the plant, where McKiernan gave them instructions how
to conduct the antiunion campaign; that the two company officials furnished them
with cards and lists of employees to visit for this purpose; and that McKiernan
from time-to-time gave him "gas money" for expenses. Gates further testified that
during their rendezvous at the airport and elsewhere, McKiernan revealed to him
and Gaither the Company's antiunion attitude and the extent to which it would
go to keep the Union out of the plant. Thus, Gates testified that McKiernan told
him that "the boss would never sign a contract" with the Union; that he (McKiernan)
would quit his job as manager before he would allow a checkoff of dues; that there
were "two ways to beat the Union . one is to beat them in the election, and
beat them at the bargaining table, and make them strike, and the Company will
go out and hire people by the truckloads to take their jobs"; and that according to
McKiernan "three white guys" were behind the Union, one of whom already quit
while the other two would be eliminated from the plant by the Company. Gaither,
whom the General Counsel called as a witness , in general corroborated Gates' testi-
mony. Apparently Gates and Gaither were quite successful in concealing their
prounion sympathies from the Company because the Company called upon both
to act as its observers in the Board election, and it was not until Gates showed up as
a member of the Union's negotiating committee that Gates revealed his double role.
7 See NL .R.B. v. Montgomery Ward if Co., 133 F. 2d 676, 681 (,C.A 9) ; American
Rubber Products Corporation v N L R B., 214 F 2d 47, 54 ('C A 7).
1In view of this finding I need not decide whether Respondent 's additional violations
which I find infra ( including Respondent 's refusal to bargain with the Union beyond the
date of the settlement agreement ) also constituted a breach of the settlement agreement.
717-672-64-vol. 143-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McKiernan and Waggoner as witnesses for Respondent conceded that they had
met with Gates and Gaither and that they had discussed with them ways and means
of defeating the Union in the forthcoming election. McKiernan frankly acknowl-
edged that he had furnished them a list of employees to serve on the antiunion
committee and that he had discussed its composition; that he and Waggoner ar-
ranged to give them cards containing the names and addresses of the employees to
permit the committee to contact the employees; and that Waggoner also supplied
them with a union booklet as testified by Gates. Both testified, however, that it was
Gates who took the initiative in proposing the formation of the committee and that it
was Gates who requested the names and addresses of the plant employees. Each
denied that McKiernan had given any gas money to Gates or anyone else on the com-
mittee. McKiernan and Waggoner also admitted discussing union matters at their
airport meetings with Gates and Gaither, including the committee's alleged progress
in contacting employees, McKiernan's past experience in a strike in which he was
involved at another plant, and checkoffs and closed shops. They flatly denied, how-
ever, any of the threats attributed to McKiernan by Gates and Gaither.
I do not deem it necessary to resolve the conflicts in the testimony of the General
Counsel's witnesses and Respondent's witnesses on this point. While there is no
question in my mind that in ordinary situations the activities of McKiernan and
Waggoner-even to the extent that they admitted participation-constitute inter-
ference with organizational activities proscribed by Section 8(a)(1) of the Act, it is
my view, for the reasons outlined below, that the activities here were induced by
Gates and Gaither under false pretense-or, as Respondent's counsel aptly charac-
terized it at the hearing, a program of "deception"-and therefore it would not
effectuate the purposes of the Act to lend the Boards' processes to remedy the alleged
employer conduct.
Thus, Gates conceded that it was he who first broached the subject of the Union
to Supervisor Ball Gates, a devout unionist, posing as a union opponent, came
to Ball with a troubled look and, as Ball credibly testified, Gates said to him that
he "had a lot of children, that the union had him worried, and he was worried about
a strike, and worried about how he could take care of his children, if he had to
go out on strike; and wanted to know if we could do anything about it." Gates
then repeated his alleged fears when Ball led him to McKiernan, telling these com-
pany officials, in Gates' own words, "I don't like this union mess, because I know
of a time in Chicago during '56 or '57 they had a strike there, and I know how the
people was out of jobs, and how they was going to the commissary for food."
Gates then prevailed upon McKiernan to put on the antiunion committee James
Gaither and Margaret Farley, two unionists who Gates pretended were antiunion.
From time to time-on at least four occasions-Gates approached McKiernan for
"gas money" which, as he acknowledged he did not in fact use for gas because, pro-
union as he was, he had no intention to campaign against the Union 9 Instead,
Gates divided the money among members of his phantom committee.10 When
pressed on cross-examination to explain why he had resorted to his campaign of
"deception," Gates protested that he was "afraid I would be fired" and that he was
only "protecting" himself.ll Gaither, too, denied any intention "to frame the
Company" and explained his alleged acceptance of the "gas money" by stating: "If
the Company was issuing out money, handing out money, why not accept its"
Farley testified that Gates had informed her that he (Gates) wanted her to remain
on the committee "because they were of the impression that I was one of the
organizers, and to protect my job, he chose for me to work with him."
Without in any way condoning Respondent's activities-for at the very least
they demonstrate the extent to which Respondent was willing to go to defeat the
Union-I believe that the Board should not lend its processes to protect the activities
of Gates and Gaither, enmeshed as they were in pretense and deception. Cf.
9 At one point Gates testified that he and Gaither did visit one employee but this em-
ployee would not talk to them. He also stated that he met with some members of his
committee on one occasion because he did not know whether McKiernan "would have
somebody watching me to see actually if I was working for him or not . . I didn't know
whether he had me trailed or what "
10 Gates gave Gaither $15 of the first $30 he allegedly received from McKiernan Feign-
ing the need for more, he allegedly obtained $25 on another occasion, $20 more later, and
an additional $10 In what appeared to be a mysterious envelope that McKiernan allegedly
sent him through Foreman Welch. Gaither received altogether $30, Farley $13, and Blair,
another member on the committee, $10.
11 Gates conceded, however, that he knew of no one during or after the union campaign
that was fired for union activities.
RADIATOR SPECIALTY COMPANY 357
Vaughn Bown, et al., 93 NLRB 1147, 1153-115412 To do so would operate to
subvert the integrity of Board proceedings. It might also well encourage employees
to entrap employers into violations and, indeed, encourage economic espionage-
activities not conducive to industrial peace. Moreover, a finding that the Com-
pany's activities constituted violations will not affect the scope of the order to be
recommended herein for the violations found.
b. Company President I. D. Blumenthal's speeches
Several General Counsel witnesses testified that I. D. Blumenthal, the president
of the Company, addressed groups of employees on various occasions prior to the
election in September 1961, in the course of which he made certain coercive state-
ments. Thus, employee Culbert testified that Blumenthal, in addition to relating
to the assembled employees how he "had raised this company from a baby," and
stating that no union could tell him how to run his company, and requesting the em-
ployees to vote against the Union, Blumenthal also warned that "even if we wanted
an election, that we still wouldn't get a contract." Culbert stated that in a second
speech, Blumenthal referred to newspaper clippings and told the employees that
"unions were not any good for the employees ... and for us to vote no, and to
keep the Union out of the plant." Employee Patton likewise referred to a speech
in which Blumenthal talked about raising the plant like a child but, Patton added,
Blumenthal further stated that if they voted in the Union they "are voting in
trouble." Employee Hicklin recalled that Blumenthal, in addition to telling the
employees not to vote for the Union, stated that he "wasn't going to have no union
in the plant." Employee Bennett recalled that when Blumenthal talked about rais-
ing the plant "from a baby," he added that "no union would come in there and tell
him how to run his plant." Plant Manager McKiernan, who testified that he was
present when Blumenthal addressed the employees, confirmed that Blumenthal spoke
about bringing the plant up "from a baby," that Blumenthal told the employees
that he would not "have anybody tell him how he should manage the plant," and
that Blumenthal read off newspaper articles on strikes. He and also Personnel
Manager Waggoner, who was also present, denied, however, that Blumenthal had
made any threatening remarks and, more specifically, that Blumenthal had said
anything with respect to bargaining or contracts.
I credit the testimony of McKiernan and Waggoner in this instance rather than
that of the employee witnesses who had attributed direct or implied threats to
Blumenthal. I note that employee Gertrude Ford, an avowed union leader and
chairman of the Union's employee negotiating committee (infra), specifically dis-
claimed hearing any reference to any contract signing in either one of the two
Blumenthal speeches which she had heard; she testified, as McKiernan and Waggoner
did, that Blumenthal merely made general references to his raising the plant "from
a baby" and his unwillingness to take dictation from unions. Employee Rountree,
another General Counsel witness, testified to the same effect and he also mentioned
Blumenthal's reference to newspaper clippings dealing with strikes at another plant,
and his appeals to vote against the Union. Indeed, employee Gates who, as we
have seen supra, was one of the Union's leading spirits at the plant, made no refer-
ence whatever to any coercive remarks in his recitation of the two speeches he
heard. And while employee Culbert quoted Blumenthal as saying that he would not
sign any contract, he admitted that he had made no reference to any such remarks
by Blumenthal in his sworn prehearing affidavit.
I find that the preponderance of credible and probative evidence does not support
a finding that I. D. Blumenthal had uttered any unlawful coercive remarks in any of
his speeches to the employees. I find that whatever coercive remarks were at-
tributed to him by the General Counsel's employee witnesses stemmed from the
employees' erroneous recollection or misinterpretation of the statements made by
Blumenthal. I further find that the statements actually made by Blumenthal-that
he would not permit any union to tell him how to run his plant which he raised
"like a baby," his appeals to the employees to turn down the Union, his reference
to strikes in other plants and difficulties that might ensue from the establishment of
the Union at his plant-though evidencing strong union animus-were protected
by the free speech proviso of Section 8(c) of the Act.
"The Board "is not required by the statute to move on every charge ; It is merely en-
abled to do so. It may decline to be imposed upon or to submit its process to abuse "
N L R.B v. Indiana i€ Michigan Electric Company, 318 U S. 9, 18-19. See also N.L R.B
v Donnelly Garment Company, 330 U.S. 219, 235. Cf. N L R.B. v. Fulton Bag d Cotton
Malls, 180 F. 2d 68, 70-71 (C.A. 10).
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. Henry Hall
Employee Gates testified that after the election Foreman Hall accosted him and
told him that he heard that Gates had signed up more union members than anybody
else; that when Hall saw Gertrude Ford approach them, Hall referred to Ford as
that "big union representative"; and that Hall then said, "You must remember that
you are in the South; the union will ... never work in this plant, and the boss will
never sign a contract, and if you go out on strike, the Company will go out and
hire people by the truckloads." Employees Hicklin and Gertrude Ford, who testi-
fied as to the same encounter, corroborated Gates' testimony.
Ford also testified that shortly after New Year's when, she, Mattie Patton, and
Mary Thompson were working together, Hall refused to permit them to take off
a half day on Saturday. Hall said to Thompson, "Your Mr. Minch, the union
representative, kept you all from getting a raise." According to Ford, Hall also
said that Culbert "was due for top salary but since he was for the Union he won't
get it now," and that "a lot of good people are going to be hurt by this union."
Patton testified to the same effect. Mary Thompson was not called as a witness.
Patton also testified that in the latter part of January, Hall asked her if she
was going out on strike. She replied that she was not "crazy" but she then asked
what would happen if she did. Hall replied that he would not advise her to go
out because "you might get back in, and you might not; it might take 3 months, 5
months, a year or you might not ever get back."
Foreman Hall either denied the statements attributed to him or stated that he
could not recall them, or made no specific reference to them Under all the cir-
cumstances, I credit the testimony of the employee witnesses whose testimony in
this respect was straightforward and convincing. I have already found that Hall
did not strike me as a credible and trustworthy witness. While I have had some
reservations about the reliability of Gates as a witness, his testimony in this instance
is fully corroborated by Hicklin and Ford. Moreover, the statements attributed to
Hall strike me as inherently probable, particularly in view of the fact that they
conform to the pattern of Hall's conduct.
d. George D. Shipman
Employee Culbert testified that Shipman, his foreman and an admitted supervisor,
said to him after one of Company President Blumenthal's speeches to the employees
(supra), "You can't do anything with the Great White Father; 13 he really knows
his stuff, and it's not going to do the Union any good to try to get in there, because
they aren't going to get in, and that he wasn't going to sign no contract, even if the
Union were going to get in." Alan Love, one of the employees whom Culbert
identified as being present, corroborated Culbert in substantial part.
Culbert also testified that on one occasion, when Shipman reprimanded him for
dropping some rubber on the floor, Shipman told him that the employees better
watch out, that when the Company moved over to the new building it would only
transfer the people it wanted to, and that it would not transfer any union people.
Culbert also testified that when, after the election, he reported to other em-
ployees 14 that Blumenthal refused to sign and permit others to sign the tally sheet,
Shipman, who was nearby, remarked, "I knew he wasn't going to sign it; I knew
that all the time; he ain't going to sign no contract, either."
John Thomas testified that Shipman, who was his supervisor, came to him one
day in December when the rest of the men had gone to a negotiating meeting, patted
him on the back, and said, "You are the only one of the fellows that have any sense,
by staying on the job, because Mr. Blumenthal will never give them a contract;
that I know."
Shipman in his testimony flatly denied all of the foregoing statements attributed
to him, claiming that he did not talk to employees about union matters. I do not
credit his denials. Shipman, like Hall, impressed me as an individual who had no
compunctions about injecting himself into the affairs of the employees. Viewed
in the light of the entire record herein, it appears highly probable that the conversa-
tions described by Culbert and Thomas did take place, and I so find.
15 Practically all of the Company's plant employees were Negroes ; Shipman was also
a Negro
11 Culbert was one of the Union's election observers.
RADIATOR SPECIALTY COMPANY 359
e. Julius Waggoner
John Thomas testified that when he returned to work for the Company the second
week of September 1961, Personnel Manager Waggoner asked him how he felt
about the Union. When he replied that he knew nothing about it, and that he never
belonged to one before, Waggoner gave him an employment application and he was
hired Waggoner admitted that the subject of the Union was mentioned when he
interviewed Thomas, but he denied that he had indicated that Thomas would be
hired if he was against the Union, adding that he (Waggoner) "never questioned
employees as to what their feelings were about the Union" as this was something
"personal" with the men.
I credit Thomas' version of the incident. I have already found that Waggoner
did not generally impress me as a wholly reliable witness. On the other hand
Thomas impressed me as sincere and forthright.
f. Andrew Varab
Employee Thomas also testified that one day in December 1961, after he and
employee David Grier were arguing about a tool, Foreman Varab (an admitted
supervisor) said that he would not tolerate arguing, that the men had become
"smart" since the Union came in; and that "there would be no contract, in this
plant, and the Union won't stand in this plant; so if you fellows want to stay on
the job, you had better get on the ball."
Grier generally confirmed Thomas' testimony. Varab in his testimony admitted
that he remembered the incident but only after his memory had been refreshed by
the employees' testimony. He denied, however, that he had made any reference to
union matters. I credit Thomas' positive testimony on the incident rather than the
testimony of Varab who, as he admitted, had only "a vague memory" of the incident.
Conclusions Respecting Respondent's Presettlement Conduct
In view of all of the foregoing, I find that Respondent interfered with, restrained,
and coerced its employees, in violation of Section 8(a)(1) of the Act, by the follow-
ing conduct of its supervisors:
(a) Supervisor Henry Hall's threatening remarks to employee Gates, in the pres-
ence of employees Hicklin and Ford, that the Company will never sign a contract
with the Union.15
(b) Hall's statement to employee Mary Thompson, in the presence of employees
Ford and Patton, that the Union's representative "kept you all from getting a raise"
and that employee Culbert would not get a wage increase because of his union
sympathies, and his further statement that "a lot of good people are going to be
hurt by this union."
(c) Hall's statement to Patton that in the event of a strike she might never return
to work.
(d) Foreman Shipman's threatening remarks to employee Culbert that the Com-
pany was not going to sign a contract; and that when the Company transferred
employees to the new building it would not take along union people.
(e) Shipman's statement to employee Thomas that the Company will never give
the Union a contract.
(f) Personnel Manager Waggoner's questioning of employee Thomas at the time
of his employment interview concerning his union membership.
(g) Foreman Varab's statement to Thomas to the effect that the Union would
not be established in the plant and that there would be no union contract.
I find that Respondent did not violate Section 8(a)(1) of the Act by the speeches
delivered to the employees by Company President I. D. Blumenthal. As to Re-
spondent's alleged formation of and support to a committee to solicit antiunion
votes and encourage the defeat of the Union, I find that, in the peculiar circum-
stances of this case, it would not effectuate the purposes of the Act to remedy
Respondent's alleged conduct.1e
16I do not find unlawful Hall's further statement that in case of a strike the Company
will "hire people by the truckloads" as this statement is equally consistent with a state-
ment that the 'Company in such event will hire permanent replacements, an action which
it had a clear right to do
1e The amended consolidated complaint alleges certain conduct by company supervisors,
both before and after the execution of the settlement agreement-other than those herein-
before described-as constituting violations of Section 8(a) (1). I find that the General
Counsel failed to adduce any credible and probative evidence to support these additional
allegations.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOALD
C. The alleged failure to bargain in good faith 17
1. Background
As noted at the outset of this Intermediate Report, the Union was, on Septem-
ber 15, 1961, certified as the statutory bargaining representative of Respondent's em-
ployees in an appropriate unit. On September 29 and October 2, 1961, Harold W.
Minch, a union representative, contacted Herman Blumenthal, Respondent's vice
president and general manager, and requested bargaining. The parties held, al-
together, 37 meetings between October 4, 1961, and August 7, 1962. Proposed
contracts were exchanged, the Union presenting its original draft on October 27,
1961, and revisions therein in April 1962; and Respondent presenting its drafts on
November 17 1961, and January 17, 1962, respectively. Representing the Union
at the initial conferences were Minch and a six-man employee committee. Re-
spondent was represented by Blumenthal, Plant Manager George McKiernan, and
Personnel Manager Waggoner. The composition of the Union's committee changed
from time-to-time, and for sometime in the negotiations the employee committee
was enlarged to 38. Respondent's representatives were the same throughout, with
Herman Blumenthal acting as chief spokesman 18 A Federal conciliator first par-
ticipated in the negotiations on February 5, 1962, and he thereafter attended all
bargaining sessions on and after May 1, 1962.
2. The bargaining conferences
a. The initial bargaining conferences
The first bargaining conference was held in the Company's conference room on
October 4, 1961. It was "just a general get-to-gether" at which the negotiators
introduced each other.19 A few grievances were aired and the meeting was ad-
journed in little over an hour. The Company proposed to meet again 10 days later
but Union Representative Minch wanted an earlier meeting and no fixed date was
set. By a letter dated October 19, Minch suggested that they meet again on
October 24 but, hearing nothing further from Respondent, Minch failed to show
up at the suggested meeting. After some correspondence and telephone commu-
nications, the next meeting was set for October 27.
At the October 27 meeting the Union consented to the Company's granting of
merit wage increases to certain employees in the bargaining unit. The parties dis-
cussed clause by clause the draft of a collective-bargaining contract submitted by
the Union. The proposed draft included a preamble identifying the parties to the
contract, and other clauses on the purpose of the agreement, union recognition,
union security or checkoff, management prerogatives, hours of work, overtime,
grievance procedure, holidays, seniority, leaves of absence, vacation, bulletin boards,
safety and good housekeeping, general rules, and termination. The wage clause
apparently was incomplete as the Union had not as yet secured any data on exist-
ing classifications and pay rates. The preamble clause which was to become one of
the controversial subjects in the ensuing negotiations named a local of the Union
(not yet designated or created) as the party to the agreement rather than the Inter-
national which itself was designated in the Board's certification?° The Company
indicated that it could not meet again until November 6, while the Union suggested
an earlier date, offering to meet evenings and weekends if necessary to suit the
Company's convenience. The parties later agreed to meet on November 6, giving
the Company in the meantime an opportunity to study the Union's proposals
At the November 6 meeting the parties again discussed the Union's proposals and
the Company submitted the wage and classification data previously requested by
17 The findings in this section are in large part based on documentary evidence and un-
disputed testimony. To the exent that the findings are predicated on disputed matters,
the findings reflect what I have concluded, after careful consideration, to be the credible
and the preponderant evidence and testimony.
18 Blumenthal attended all of the 37 bargaining sessions, and McKlernan and Waggoner
all but 1 each Blumenthal testified that the instant negotiations were his "first experi-
ence" while McKiernan stated that he had participated in negotiations with the Union
while employed at other plants
19 The employee committee initially designated to sit with Union Representative Minch
was: Getrude Ford, Barbara Ellerbe, Ellen Watts, Charles E. Culburt, Ralph Barber, and
John Love.
21 The Union first chartered a local (Local No 668) with jurisdiction in the area of
the Company's operations on April 13, 1962
RADIATOR SPECIALTY COMPANY 361
the Union. There ensued another discussion of the next meeting date and it was
ultimately agreed to meet November 17.
b. The November 17 conference; the Company's counterproposals, including its
grievance (without arbitration) and union liability proposals
At the November 17 meeting the Company submitted its first written counter-
proposals. Like the Union's draft, the Company's draft contained provisions on
terms and conditions of employment. The preamble clause named the International,
rather than a local of the International, as the party to the contract. The proposed
draft contained two major clauses which, in subsequent negotiations, became major
bones of contention.
One of the clauses-the "grievance-procedure" clause (article VII)-set forth
four steps for the resolution of grievances: (1) informal discussions between the
Union's and Company's departmental or shift representatives; (2) formal handling
by the Union's departmental representative and the departmental foreman; (3) dis-
cussions between the Union's plant grievance committee and a company repre-
sentative; and (4) submission of the grievance to representatives selected separately
by the Union and Company "for final discussion and settlement." At the hearing
company counsel explained that the last step represented "a further and final effort
to settle" the grievance through the representatives of the parties and if this step
failed, "the company's decision on the matter would stand." The Union's draft
proposals (article VIII) provided for similar steps for the resolution of the grievance
through the fourth step, but a fifth proposed step called for the submission of the
grievance to an impartial arbitrator whose decision, it was stipulated, would be
"final and binding upon both parties." 21
The second controversial clause contained in the Company's draft was the "No
Strikes, No Lockouts" clause (article XVI) which provided as follows:
During the term of this Agreement the Company shall not engage in any
lockout of employees, but this provision shall not be construed as limiting or
impairing the right of the Company to cease or to reduce its operations on
account of business necessities. If the Company either directly or indirectly
violates any provision of this paragraph, the Union shall have such rights and
recourse as the law may provide, including liability for any and all injury or
damage which may result from such violations. It is understood that the
liability here provided for shall extend to the full resources of the Company.
During the term of this Agreement there shall be no strike, walkout, slow
down, work stoppage, nor picketing, nor any other concerted action of any
nature which has its purpose or effect the interruption of or interference with
the Company's production. If the Union, either directly or indirectly, author-
izes, promotes, supports, or condones any violation of any provision of this
paragraph, the Company shall have such rights and recourse as the law may
provide and the Union shall be subject to such liability as the law may provide,
including liability for any and all injury or damage which may result from
such violations. It is understood that the liability here provided for shall ex-
tend to the full resources of the Union and shall not be confined to the resources
of any local which may have been or may be chartered by the Union.
Respondent's draft proposal did not vary significantly from the Union's draft on
such matters as recognition of the Union, purpose of the agreement, management
prerogatives, hours of work, safety and housekeeping, and termination of agreement.
There were, however, substantial differences on other matters proposed in the Union's
original draft, apart from the nature of the preamble clause, the omission of binding
arbitration from the grievance clause, and the inclusion of the "No Strikes, No Lock-
outs" clause Thus the Company's draft did not contain a union-security or check-
off provision. It provided for time and one-half after 40 hours in any workweek
but no premium pay for work on Saturdays and Sundays. It contained no equaliza-
tion-of-hours clause. No wage increases were proposed. Different holidays and
eligibility requirements for holiday benefits were provided. Seniority was not de-
termined on a plantwide basis as proposed by the Union. Leaves of absence were
to be granted for "illness or for other just cause" without spelling out in detail, as
the Union draft did, the circumstances constituting just cause. There were substan-
n The Union's draft (article VIII, section 2(e)) further provided-
The Impartial Arbitrator shall have no authority to modify or change the terms of
this agreement, nor shall he have the right to add or substract from this agreement
He shall, however, have the authority to interpret and apply the terms of this agree-
ment to the extent necessary for the determination of grievances presented to him.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tial variances in the amounts and methods of computation of vacation benefits.
The Company's bulletin board clause was less specific than the Union's. The "gen-
eral rules" clause failed to list many requirements contained in the Union's clause
such as maintenance by the Company of sanitary conditions, safe and good working
facilities, allowance periods for lunch and cleanups, and retention of the existing
group life and hospital and surgical insurance benefits. Finally, the Company's
draft omitted the wage reopening clause contained in the Union's draft.
During the November 17 meeting the parties first came to grips with the issues.
Union Representative Minch stated that the Company's draft was unacceptable
but the Union would give it further consideration. He complained that the Com-
pany "had offered nothing" on the major issues and he strenuously objected to the
"liability" provisions contained in the "No Strikes, No Lockouts" clause, and the
omission of arbitration from the grievance procedure clause. Company Vice Presi-
dent Blumenthal took the position that "the Company could not submit to an
outsider making decisions involving their plant," asserting that it "had to have the
final say in anything that required decision in the operation of their plant."
The November 17 meeting lasted approximately 2 hours, part of which (about 20
minutes) was devoted to a discussion of the next meeting which, Blumenthal stated,
could not be held until November 30 because he had to attend a sales meeting and
a meeting at a laboratory in Chicago. The Union objected to the delay and again
offered to meet weekends. By a letter dated November 20, Blumenthal advised
that he would meet with the Union on November 30 and, if needed, on December 1.
By a letter dated November 22, Minch agreed to this arrangement, protesting, how-
ever, the "lapse of time between meetings" and pointing out that the employee com-
mittee is losing its patience due to the long lapses between meetings and the "sub-
standard" contract offered by the Company.
c. The November 30 and December 1 and 7 conferences
The next two meetings were held as scheduled on November 30 and December 1,
the former lasting 2 hours and the latter much less. The parties discussed both
the Company's and the Umon's drafts and at one of the meetings also the grievance
of an employee.
The next meeting, held on December 7, was in Blumenthal's words "quite a meet-
ing " Prior to the meeting Minch in the customary manner approached Personnel
Manager Waggoner and asked for the release of the members of the employee
negotiating committee in order to enable them to attend the scheduled bargaining
session. This time Minch handed Waggoner a letter notifying the Company that
the Union had added 32 additional employees to the employee committee and he
demanded their immediate release to attend the negotiations.22 Blumenthal, who
was summoned by Waggoner, protested that some of the new committeemen could
not be spared from work, that he was entitled to "a little notice," and, in any event,
that it was impossible to accommodate all of the committeemen in the small con-
ference room in which the parties theretofore met. Blumenthal finally agreed to
release the newly appointed committeemen although this resulted in a shutdown of
practically the whole pressroom and mixing department. The meeting was there-
after held in a room procured by the Union in the McCrory YMCA, attended by
the full committee and several other employees who left without permission 23
Once settled down, the December 7 meeting lasted 5 hours, the parties discussing
the company and union draft agreements, paragraph by paragraph, until 9 p m.
22 James Gates and James Gaither were two of the men added to the employee committee.
13 Minch both in the letter he handed Waggoner and at the hearing explained that the
committee was enlarged in order to afford a larger cross-section of the employees to see
the attitude of the Company, the lack of progress in the negotiations, and the 'Company's
dilatory tactics At the same time he stated that it was felt that the participation of the
large committee would facilitate better understanding of the issues, facilitate progress in
consummating an agreement, and even help avoid a strike On cross-examination, Minch
denied that his purpose for enlarging the committee was, as a newspaper reporter quoted
him as saying, to "harass" the Company in order to force concessions. He admitted, how-
ever, that he knew that the presence of the 38 employees at the eight bargaining sessions
in which they participated was "bound to" inhibit plant production and that in at least
one bargaining session the committeemen were all "jumping up and Jabbering, giving
speeches, putting on acts." I credit Herman Blumenthal's testimony to the effect that
Minch had admitted to him that the purpose of the "big committee" was to force and
wrest concessions from the Company and that Minch's action was, in effect, a harassing
technique
RADIATOR SPECIALTY COMPANY 363
In a letter dated December 12, 1961, Blumenthal replying to matters previously
raised by the Union, including the long time lag between meetings, stated: "We will
do our best to meet with you as nearly in accordance with your requests as possible.
It must be borne in mind that we have the constant pressures and demands of our
business to attend to. These constitute more than a full-time job for all of us
here in management of our company. Nevertheless, we will set aside everything
we can in order to push ahead toward the completing of an agreement between us "
In the same letter Blumenthal complained about the December 7 episode and re-
quested a reduction in the size of the employee committee and advance notice of its
composition.
d. The December 14 and 19 and January 10 conferences; the positions of the
parties on the issues
The next three meetings on December 14 and 19 and January 10, were held in
a conference room in the Company's new building then under construction, and
was attended by the Union's large committee. Agreement was reached on some
minor issues such as leaves of absence as to which the Company submitted a coun-
terproposal. No agreement was reached on the major issues, namely, wages, over-
time, union security or checkoff, seniority, the preamble clause, liability, grievance
procedure, and arbitration. Although disclaiming inability to pay, the Company
would not offer any wage increases. As to overtime, Blumenthal stated that he
"liked the Wage and Hour law, and they would not deviate" from their practice
"which was in compliance" with that law. As to checkoff, the Company's position
was that "they felt that it was an imposition for them to check off," that it was
costly, and, moreover, that they didn't even want to know who the union members
were." The Union offered to make concessions on other issues provided the Com-
pany was willing to change its position on what it considered to be the most objec-
tionable clauses, namely, liability, arbitration, and seniority. The Union had pro-
posed seniority computation on a plantwide basis but the Company wanted depart-
mental seniority. As to arbitration, the Company took the position that "it could
not submit to decisions affecting their plant" to a "third party or outsider " As to
the preamble clause, the Company insisted that the International be named a party
and not the local, as suggested by the Union; Minch indicated, however, that "this
would not be a major issue." As to liability, the Company wanted the International
to be responsible for unauthorized strikes and stoppages. The Union, however, took
the position that the liability clause, subjecting the International to damages for
what it was "indirectly" as well as directly responsible, would make it liable "for
even nonmembers in the plant, or anything that might occur that could be indirectly
blamed on the Union " Minch stated that the Union would accept "reasonable lia-
bility," but insisted that "no self-respecting organization could possibly accept a
liability clause such as was being proposed by the Company."
Before the close of the December 19 session, the parties again argued about the
scheduling of the next meeting. The Company advanced "a variety of reasons
. . . particularly the Christmas shutdown of the plant" for not meeting until Janu-
ary 10 The Union finally acceded to the Company's wishes.
e. The bargaining conferences between January 16 and April 27
There were altogether 15 meetings between January 16 and April 27, 1962 24
The January 16 meeting, held in the county courthouse, was cut short by the Com-
pany's representatives when the presence of a newspaperman was discovered. On
January 17 the Company submitted a revised draft The Company's new draft
differed from its original one in that, unlike the latter, it contained an equalization-
of-hours clause patterned in some respects after the Union's clause. The same
holidays were retained but with more liberal eligibility provisions for holiday pay
The leaves-of-absence clause spelled out in detail the circumstances constituting just
cause for authorized leave in most respects like the Union's draft did. The original
vacation benefit provisions were liberalized and also came somewhat more closely
to the Union's demands. The new bulletin board clause was in practical effect the
same as the Union's. Finally the "general rules" clause added some, although not
all, of the rules contained in the Union's clause. However, the Companv's revised
draft retained in substantially the same or similar form the clauses in its original
draft on such major items as union liability, grievance procedure without arbitration,
" January 16 and 24 , February 6 and 14 March 6, 13 14. 20, 23 and 29 , and April 3,
5. 11, 13, and 27
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority, wages and overtime pay, and, like the original draft, it made no reference to
union seniority or checkoff.
On January 22, the Company complied with the Union's prior request for a
seniority list. The January 24 meeting was rather an acrimonious one, the parties
devoting a good part of the meeting to the question whether the Company was re-
sponsible for a newspaper article describing the majority of the Company's em-
ployees as unskilled It was at this meeting that Union Representative Minch,
aroused by Company Vice President Blumenthal's statement that "we had been
getting along fine prior to the time that the union had interjected" itself at the plant,
heatedly told Blumenthal, who is of the Jewish faith, "you know, Hitler was right.
Only he didn't go far enough." It was also at this meeting when Minch, again
losing his temper, said to Blumenthal that "if you say you are here in good faith,
you are a liar."
Conciliator Rosenberry of the U.S. Department of Labor entered the negotiations
on February 5, the conciliator meeting with the parties separately. At the concilia-
tor's request the 38-man employee committee was reduced to its original size-6
men. As hereinafter noted, the conciliator again entered the picture on May 1.
The next meeting, scheduled for February 14, was called off when Blumenthal
notified the Union that he was tied up in a court litigation on a nonlabor matter
which lasted 2 full weeks. Negotiations were not resumed until March 6, when
International Representative Frank Femia, who was shortly to replace Minch, ap-
peared on the scene. Attempting to impress Femia, Blumenthal placed the blame
for the deadlock in the negotiations upon Minch, and as evidence of his good in-
tentions Blumenthal agreed to two bargaining sessions that day, one lasting 21/4
hours in the morning and another 2 hours in the afternoon. Responding with a
similar conciliatory gesture, Femia agreed to thereafter confine the size of the em-
ployee committee to its original size,25 and to meet at the Company's new plant.
In the ensuing meetings the parties met and exchanged positions on the issues
Two meetings were held in succession on March 13 and 14 26 but when Femia pressed
for another meeting the next day, Blumenthal responded that he had other important
matters to attend to. The next two meetings were held on March 20 and 23 and a
further meeting scheduled for March 27, was, at the Union's request, postponed
to March 29.27 At the April 3 meeting Femia informed the Company that the
Union "just couldn't put up with it much longer" as the Company "had not made
any concessions" and there ensued a long discussion on the possibility of a strike 28
The parties did devote a good deal of time to a discussion of hospitalization benefits
which Femia introduced when he entered the negotiations 29 The next two meet-
ings held on April 5 and 11 lasted 21/2 hours each. At the April 13 meeting which
followed, the parties spent a good deal of time on the subject of wages.
On or about April 10, Femia wrote to I. D. Blumenthal, the Company's president,
protesting the time lags between meetings which, he said, had been set by the
Company at the rate of one meeting per week, although he had requested daily
meetings. Femia stated that some meetings lasted as little as 2 hours and that the
Company's chief spokesman has stated that "too much time has already been
consumed and that there were other more important matters that he must devote
his time to." Femia enclosed newly proposed changes in some of the Union's
proposals and he requested I. D. Blumenthal to sit in the negotiations.30 On
April 12, I. D. Blumenthal replied, stating that it was not necessary for him to
attend the negotiations as the Company's representatives were fully authorized to
25 While only the smaller committee met with the conciliator at his office on February 6,
the large committee again reappeared at the meeting held in the courthouse on March 6.
26 Blumenthal explained that Femia "came down from Akron to that meeting and asked
that we meet those two days in a row, and we agreed to since he had come such a distance "
27 Respondent's Exhibit No 15, which is a letter dated March 26, 1962, confirming the
postponement, erroneously identifies the postponement from April 27 to 29. Both Blumen-
thal and Femia testified that a meeting was in fact held on April 27
28 Minch testified that the Union had considered strike action as far back as January
and a report thereon appeared in a newspaper that month but the matter was not at that
time raised in bargaining sessions
29 The Company, pursuant to the Union's request, supplied the Union with data on the
cost of the hospitalization plan proposed by the Union.
30 One of these proposals dealt with liability The Union undertook to "actively dis-
courage and endeavor to prevent or terminate" any work stoppages or slowdowns arising
out of disputes subject to the grievance procedure Any employees "violating the provi-
sions of this article [were to be] subject to disciplinary action " The Union was to be
absolved from monetary liability for any breach of the article
RADIATOR SPECIALTY COMPANY 365
negotiate; and that as for the frequency of the meetings, the Union should bear in
mind that "the Company representatives have many other duties which it is neces-
sary for them to attend to" but that he has asked them to "give as much time as they
can to these negotiations, consistent with their attending to the other business of
the Company." Herman Blumenthal's letter of April 12 to the Union on the
same subject states, in similar tenor, "We must remind you that bargaining upon
contracts such as this may be all that you have to attend to, but we are pushed
constantly with all other burdens of our work and duties in an effort to keep this
business going successfully."
The next meeting, originally scheduled for April 17, was rescheduled for April 27,
due to a death in Blumenthal's family.
f. The May 1-14 meetings; the position of the parties prior to the
May 15 strike
Conciliator Rosenberry again entered the negotiations on May 1, 1962.31 With
the imminence of the strike apparent, the parties steppd up the pace of the negotia-
tions. They met twice on May 1 and again on May 2 and 3, at times separately
and at other times jointly with the conciliator. On May 5, Herman Blumenthal
sent a telegram to the Union calling attention to a newspaper article reporting that
the employees expected to strike within the next few days "unless a meeting can be
arranged." Blumenthal offered to "cancel other pressing engagements" and meet
with the Union on May 7, although he expressed misgivings that "another meeting
offers any prospect for agreement with respect to the issues on which we are apart."
The parties then met on May 7, but the meeting was cut short after 11/2 hours when
International Representative Femia asked to be excused in order to attend another
meeting. The final and 29th meeting before the strike was on May 14, in which
Union Representatives Elliott and Krammer joined Femia on the Union's negotiat-
ing team.
The strike commenced at 5.30 a.m., May 15. Prior to the strike the Union had,
at several meetings, offered to plan with the Company an "orderly shutdown" but
the Company rejected the offer, stating that it "would attempt to operate the plant."
In the meeting preceding the strike-and, indeed, from the very outset of the
negotiations-the parties made little or no headway in the resolution of the major
issues. The parties at the time of the strike were still divided on wages, hospitaliza-
tion , overtime, seniority, liability, grievance procedure, and arbitration. As to wages,
the Union proposed a 25-cent per hour increase across the board but the Company
took the position that it could not grant it. The Company still adhered to its posi-
tion when the Union offered to compromise by accepting a 5-cent increase on the
signing of the contract, and additional 5-cent increases every 4 months thereafter-
or a total of 20 cents spread over the contract year. The Company also rejected the
Union's proposal, made along with the wage request, that the Company assume one-
half of the hospitalization cost. Overtime remained a stumbling block. The Union
continued to press for plantwide seniority and the Company for departmental senior-
ity. Objecting to any promotions on seniority basis, the Company took the posi-
tion that it would place its employees "where we damned please" and that "nobody
is going to tell us where we can place them." The Union still insisted on naming a
local in the preamble clause and the Company insisted upon the inclusion of the
International. Explaining its position , the Union pointed out that unless the Local
were named the Company might insist on taking up grievances only with International
representatives who would have to take trips for the purpose from Akron, Ohio.
The Union continued to claim that the Company's liability proposal would subject
it to liability for the misconduct of nonmembers in the bargaining unit, even of
"spies" possibly "planted" by the Company. Finally, the Company insisted that it
must have the "final word" on the resolution of grievance disputes, without the
intervention of any arbitrator. Explaining the Company's position on this point,
Blumenthal stated at the hearing-
Grievances are up to the Company, and if outside arbitration is called in,
it takes away the powers of the Company. The Company felt that it wanted
to manage the company and with outside arbitration it could not do so . .. .
[T]he Company wanted to have the final say in grievances.
The Company adamantly continued to oppose arbitration even when the Union
offered to reduce the scope of arbitrable matters, i.e., limiting it to discharge cases
or, in the alternative, to everything but discharges. Nor would the Company consent
"The conciliator thereafter participated in all the meetings between the parties both
before and after the strike which, as noted below, commenced on May 15.
366 DECISION S OF NATIONAL LABOR RELATIONS BOARD
to any arbitration when the Union offered to permit Blumenthal himself "to pick
his own arbitrator, to choose anyone even a relative." At the same time, the Com-
pany insisted on the retention of the no-strike provision in the contract, explaining
"many times," in Blumenthal's words, that "our whole purpose of signing the contract
was to get uninterrupted production, and that's why we felt the no-strike clause
was necessary." The Union would not agree to sign a no-strike clause without
binding arbitration.
Agreement had been reached by the time of the strike on the following minor
matters as to which there never were in fact any significant differences between the
parties: the purpose clause, recognition, management prerogatives, hours of work,
safety and housekeeping, and the termination clause. Agreement was also reached
on the following matters after the Union agreed to accept the Company's proposals
thereon as they appeared in its revised draft of January 17, 1962; equalization of
hours, holidays, leaves of absence, vacations, bulletin boards, union membership,
general rules 32 As previously noted, the Company's proposals on most of these
matters represent compromises between its original position and that of the Union.
As to the union membership clause, the Union's acceptance of this clause meant
that it gave up its union-security or checkoff proposal.
g. The final conferences between May 17 and August 7
Eight additional meetings were held by the parties between May 17 and August 7,
1962,33 with the conciliator present at all of these meetings. The last conference
attended by Femia was on July 9, after which Smithhart (who had attended the
negotiations since May 23) took over for the Union. Explaining the long lapse
between the June 1 and June 20 meeting, Blumenthal testified that he was busy,
spending the "greater part of two days" with the Board's investigator who arrived
at the plant to secure information about one of the pending cases herein. Blumen-
that testified that he later had to put off a meeting scheduled for July 12 until
July 24, because the Board's investigator again visited the plant. On July 26,
Blumenthal requested the conciliator to continue a meeting originally scheduled for
July 31, because an "important matter" had come up and he was not sure that he
would "be in town much that week," and the meeting-the last one-was then held on
August 7.
The final meetings between the parties were devoted to discussions of the major
issues which still separated them but the parties failed to make any progress. At
the June 1 meeting the Company stated that it could not give any wage increase
until it knew the status of its inventory and financial position which it expected to
know by June 30, but at the last meeting on August 7 the Company stated that
"they still did not know what their financial standing would be " At one meeting
Blumenthal indicated that the Company "might be able to scrape up a penny or two"
after he took inventory.
At the Tune 20 meeting the Union told the Company that "this strike had been
going on long enough, and we were willing to make any type of concessions that
(were) honorable." The Union explained that the liability clause upon which the
Company insisted was particularly objectionable because "we had agreed with the
Company that we would sign a no-strike clause, without arbitration, and when you
have a no-strike clause with no finality with the grievance procedure, conditions
could get so bad in the plant that no one could control these people." The Com-
pany insisted, as before, that it could not accept any type of arbitration as it objected
to a "third party" or "an outsider telling them what to do."
At one meeting the Union, anxious to settle the issues, made several alternative
offers. First, the Union asked whether, if the Union conceded on the preamble,
would the Company "settle the other four remaining items," i.e.. arbitration, hospi-
talization, liability, and wages. The Company declined the offer and the Union
then asked whether the Company would settle "the other three matters" if the
Union conceded on the preamble and arbitration. When the Company rejected this
offer also, the Union asked whether the Company would yield on the remaining
two issues (wages and liability) if the Union conceded on the preamble, arbitra-
tion, and hospitalization. The Company turned down this offer also. On another
32 The record does not show the particular dates when agreement was reached on all of
these matters but it is apparent that agreement thereon was reached before Minch left
the negotiations sometime in March. Both Minch and Femia testified that the items agreed
upon, as listed above, were so marked by Minch on the Company's draft but agreement was,
of course, tentative subject to the consummation of the entire contract.
33 May 17, 23, and 31 ; June 1 and 20; July 9 and 24; and August 7.
RADIATOR SPECIALTY COMPANY 367
occasion the Union offered to produce "the hundreds of contracts" it had with other
employers and permit the Company to "select the one that he (Blumenthal) wanted
out of the hundreds" but the Company would not consider the suggestion.
h. The Union's abortive attempts to meet further with the Company
After the conclusion of the August 7 meeting, the parties made no further attempt
to contact each other until November 16, 1962, when John Taylor, a new Inter-
national representative, contacted Blumenthal by telephone.34 Taylor first attempted
to arrange a bargaining meeting through the conciliator's office (as the prior meet-
ings were arranged) but that office was tied up with other work. In the November 16
conversation Blumenthal initially agreed to meet with the Union on November 20,
but he later called Taylor to tell him that he could not meet that week because
he was "extremely busy" and a meeting was then scheduled for November 30. On
November 29, Blumenthal called Taylor and told him that he could not meet with
the Union the next day "unless there was a conciliator present." 35 Taylor then
contacted the conciliator who later arranged a meeting for December 6. The con-
ciliator could not make the December 6 meeting and so notified Blumenthal who
in turn notified Taylor. A day or two later Taylor contacted the conciliator, told
him that he was leaving for the weekend, and requested him to arrange a meeting
for the following week. No meeting was actually arranged and the parties never
met again.
Conclusions Respecting Respondent's Failure To Bargain in Good Faith
1. As already found, Respondent and the Union, the certified bargaining repre-
sentative of the plant employees, met on 37 occasions between October 4, 1961, and
August 7, 1962, to negotiate a collective-bargaining agreement. During these meet-
ings the parties exchanged drafts and agreed upon proposals, mostly minor in
nature, but deadlocked on the major issues. The question presented is whether
Respondent in its negotiations with the Union fulfilled the obligation which Section
8(a) (5) and (d) of the Act imposed upon it "to meet at reasonable times and confer
in good faith with respect to wages, hours, and other conditions of employment,
or the negotiation of an agreement, or any question arising thereunder .
The statute does not, of course, define, and indeed could not define, what con-
stitutes good-faith bargaining. Whether a party has complied with its bargaining
obligations must be determined from his total course of conduct. Such determina-
tion normally "can only be inferred from circumstantial evidence." N.L.R B. v.
Reed & Prince Manufacturing Company, 205 F. 2d 131, 139-140 (C.A. 1), cert.
denied 346 U.S. 887. "The problem is essentially to determine from the record
the intention or the state of mind of respondents in the matter of their negotiation
with the Union." N.L.R.B. v. National Shoes, Inc., and National Syracuse Cor-
poration, 208 F. 2d 688, 691 (C.A. 2).
While the determination of the character of bargaining is "frequently difficult
of ascertainment and establishment" (L. L. Majure Transport Company v N.L.R B.,
198 F. 2d 735, 739 (C.A. 5) ), the Board and the courts have over the years laid
down the guiding principles for the assessment of good faith. Thus, respecting the
duty to meet, it has long been recognized that "the obligation to bargain collectively
surely encompasses the affirmative duty to make expeditious and prompt arrange-
ments, with reason, for meeting and conferring." J. H. Rutter-Rex Manufacturing
Company, Inc., 86 NLRB 470, 506. So also it has long been recognized that
"performance of the duty to bargain requires more than a willingness to enter upon
a sterile discussion of union-management differences." N.L R.B. v. American Na-
tional Insurance Co., 343 U.S. 395, 402. It presupposes "discussion with an open
and fair mind, and a sincere purpose to find a basis of agreement" (N L R B. v.
Highland Park Manufacturing Company, 110 F. 2d 632, 637 (C.A. 4)) and not
mere "surface bargaining" (N.L.R.B. v. Whittier Mills Company, et al., 111 F. 2d
474, 478-479 (C.A. 5) ). A party's "approach and attitude toward negotiations
as well as [his] specific treatment of items for negotiations" are relevant considera-
tions. N.L.R.B. v. George P. Pilling & Son Co., 119 F. 2d 32, 37 (C.A. 3). And
14 Smitbhart, who represented the International at the August 7 meeting, testified that
Conciliator Rosenberry undertook to schedule another meeting within 2 weeks after
August 7, but that the conciliator never contacted him further.
ae Blumenthal testified that he did not "recall" making the Presence of the conciliator a
condition to the meeting He admitted, however, that he did request his presence as in all
the prior meetings the conciliator attended "the meetings were orderly . . . and there
was no shouting and yelling and no insults thrown around."
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
while an employer is not obligated to make any particular concession , it is clear
that he is "obligated to make some reasonable effort in some direction to compose
his differences with the Union if Section 8(a)(5) is to be read as imposing any
substantial obligation at all " N.L.R.B. v. Reed & Prince Manufacturing Company,
205 F. 2d 131, 134-135. "Collective bargaining , then , is not simply an occasion for
purely formal meetings between management and labor, in which each maintains
an attitude of `take it or leave it'; it presupposes a desire to reach ultimate agreement
to enter into a collective bargaining contract ." N.L.R.B. v. Insurance Agents' In-
ternational Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477, 485.
2. Applying the foregoing principles to the instant case , I find that the record as
a whole establishes that Respondent's course of conduct falls short of compliance
with its statutory obligation to bargain in good faith. This is not to say, as is often
the situation in cases of this type, that this record is totally devoid of any facets
tending to indicate good-faith bargaining on the part of Respondent . Thus on the
surface, at least , the record shows that Respondent did meet with the Union on
numerous occasions in a 10-month period, it furnished the Union requested bar-
gaining data , submitted some counterproposals and made some compromises, and,
as we shall see below, its intransigent position on one major issue was wholly
justified. In addition , the conduct of one of the Union's representatives during
one period of the negotiations certainly was far from exemplary. Nevertheless,
after carefully weighing the factors militating for and against a finding of good-
faith bargaining, I am convinced from the totality of Respondent 's conduct that it
entertained no sincere desire and made no genuine effort to conclude an agreement
with the Union. On the record as a whole, and particularly in view of the con-
siderations outlined below, I am convinced that Respondent merely went through
the motions of negotiation , to cloak its objective of undermining the Union at the
bargaining table.
(a) The record shows that Respondent was strongly opposed to the organization
of its plant. The admissions of its own officials-two of them ( Plant Manager
McKiernan and Personnel Manager Waggoner ) members of Respondent 's three-
man negotiation committee-demonstrate the extent to which the Company went in
planning and establishing a committee to keep the Union out of the plant.36 Sub-
sequent to the establishment of the Union in the plant and, indeed , during the very
period of the negotiations , various company officials warned employees that the
Company would close the plant, that it would never sign a contract , and that the
Union was just wasting its time. Personnel Manager Waggoner himself contributed
to the undermining of the Union when , on the first day of the strike and during
the pendency of the negotiations , he solicited two employees to return to work,
promising them benefits if they did and threatening them with reprisals if they did
not. Such demonstrations of hostility to the Union and interference with employees'
rights tend to negate any claim that the Company entered the negotiations, and
negotiated, with a sincere desire to find some mutually satisfactory basis for an
accord with the Union through the give and take of collective bargaining . Rather,
such conduct tends to show that the Company was more bent on destroying the
Union than on reaching agreement with it at the bargaining table. Cf. N.L.R.B.
v. Marion G. Denton and Valedia W. Denton, d/ b/a Marden Mfg. Co., 217 F. 2d
567, 570 (C.A. 5), cert. denied 348 U.S. 981.
(b) Also indicative of Respondent 's lack of good faith in the negotiations is its
attitude toward the scheduling of bargaining conferences . While neither the Board
nor the courts have evolved, or indeed can evolve , any particular formula by which
to test whether any given frequency of meetings or amount of time spent in nego-
tiations , satisfies the statutory requirement "to meet at reasonable times," the Board
has repeatedly admonished that parties to collective bargaining are obligated to
display as great a degree of diligence and promptness in the discharge of their
bargaining obligations as they display in other business affairs of importance.37
For, "Agreement is stifled at its source if opportunity is not accorded for discussion
or so delayed as to invite or prolong unrest or suspicion ." J. H. Rutter-Rex Manu-
facturing Company, Inc., 86 NLRB 470, 506. Moreover , "delay in collective bar-
gaining entails more than mere postponement of an ordinary business transaction,
for the passage of time itself, while employees grow ... impatient at their desig-
° As already noted, in the unusual circumstances of this case , I found that the Com-
panv 's activities in this respect should not be held to be violations of the statute This
findinc does not, of course , preclude me from considering the character of the Company's
activities on the question of union animus
37J H Rutter-Rex Manufacturing Company, Inc , 86 NLRB 470 , 506-508 ; "M" System,
Inc., Mobile Home Division Mid-States Corporation , 129 NLRB 527, 549.
RADIATOR SPECIALTY COMPANY 369
nated bargaining agent 's failure to report progress , weakens the unity and economic
power of the group and impairs the Union's ability to secure a beneficial contract."
Burgie Vinegar Company, 71 NLRB 829, 830.
The record in the instant case shows that the parties met on numerous occasions-
37 times in a 10-month period . Some of these meetings, particularly those in May
when the strike was imminent , were at close intervals and a few meetings were
lengthy. However, the great bulk of the meetings were of short duration , lasting
about 2 hours, and the lags between many were considerable . Discounting lags
up to the fourth meeting on November 17 (involving lags of 23, 10, and 11 days
between each meeting, respectively)-as to which the delays may conceivably be
explained by the need to prepare for the negotiations-the record shows that 6 or
more days elapsed between the meeting dates in at least 20 of the remaining 33
sessions . There was a lag of as much as 1 month between the February 6 and
March 6 meetings because Company Vice President Blumenthal was then engaged
in a 2-week litigation on a nonlabor matter. Twenty-two days elapsed between the
December 19 and January 10 meetings because the Company would not meet earlier
for "a variety of reasons . . . particularly the Christmas shutdown of the plant."
There was a 19-day delay in setting one meeting in June and a 15-day delay in setting
another in July because , as Blumenthal explained , a Board investigator was at the
plant; Blumenthal conceded , however, that he spent no more than 2 days with the
investigator in his June visit . A period of 2 weeks elapsed between the November
17 and 30 meetings because, as Blumenthal explained , he had to take business trips
in the interim 38 The Union repeatedly protested the lags between the meetings
and it expressed willingness to meet evenings and weekends to accommodate Blu-
menthal who claimed that he had other important business matters to attend to and
could not meet at more frequent intervals.
While it may well be that genuine business considerations motivated the lengthy
intervals insisted upon by Respondent between many of the meetings , I cannot
accept this explanation as legally justifiable . It is clear from this record that Re-
spondent did not feel the same sense of urgency about bargaining meetings as it did
about important business affairs. Moreover , if Blumenthal 's other activities made
it impossible for him to devote adequate time "to reasonably prompt and continuous
negotiations," it was Respondent 's obligation to furnish a representative who could,
so as not to interfere with the employees ' statutory right to the expeditious resolu-
tion of disputes over contract terms. "M" System, Inc., Mobile Home Division
Mid-States Corporation, 129 NLRB 527, 54938 The Act does not permit a party
to hide behind the crowded calendar of his negotiator , whether he be a busy labor
attorney or an overworked company officer.40
(c) Of further significance in assessing Respondent 's good faith in the negotia-
tions here is the position taken by it on the bargaining issues. While Respondent
readily accepted the Union 's proposals on noncontroversial subjects such as recogni-
tion , and on trivial and minor matters such as bulletin boards and safety and house-
keeping, and while it compromised on issues such as holidays and vacations , it con-
tinued to maintain from beginning to end an uncompromising and irrevocable position
with respect to wages, grievance procedure and arbitration , liability, seniority,
and overtime 41
As to wages, the Company first took the position that it would not grant any
increases , although it disclaimed any inability to pay. Later the Union reduced its
original demand from a 25-cent per hour increase across the board to a 5-cent per
hour quarterly increase , but the Company took the position that it could not pay this.
The 2-week delay between the April 13 and 27 meetings was , of course . justified In view
of a death in Blumenthal ' s family. The Union was responsible for a 2 -day delay in post-
poning the March 27 meeting to March 29.
20 See also NL.R.B. v. Martin Brothers Box Company , 130 F. 2d 202 , 207 (CA 7), cert.
denied 317 U S. 600. In this connection T note that Blumenthal, whose pre'enee the Com-
pany apparently felt indispensable, had no prior bargaining experience . nhoreas HeKlernan,
whose attendance was not considered as essential, did have prior experience
"In view of the above findings I do not find it necessary to determine whether Respond-
ent further violated itls statutory duty "to meet at reasonable times" arler November iii,
1962, as alleged in the complaint . This allegation In the complaiiir appears to be grounded
on the fact , as found supra, that Herman Blumenthal had inAsted that the Federal con-
ciliator be present at the meeting which International Representative Taylor requested in
November.
11 Respondent also displayed an uncompromising attitude on the preamble clause--an-
other major issue in the bargaining . Respondent 's position on this issue , which I find to
be justified as a matter of law, Is discussed infra.
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the later stages of the negotiations the Company maintained that it could not
consider any wage increases until it took inventory and knew its financial position,
but the Company continued to assert that it still did not know its financial position
at the last meeting on August 7. As to overtime pay, Respondent was willing to
contract only foi the overtime pay provided by Federal law. With respect to
seniority , Respondent took the position that it would not permit promotions of
employees on the basis of length of service as it was going "to place them [the
employees ] where we damned please." And the Company stood pat on its position
as to hospitalization , rejecting the Union 's demand that the Company share half of
its cost. It is clear that as to these issues , as well as to the others discussed below,
Respondent "showed no disposition to consider the seriously disputed items from
any other point of view than requiring a complete surrender on the part of the Union
to the proposals of the Respondent ." N.L.R.B . v. Reed & Prince Manufacturing
Company, 118 F. 2d 874, 882 (C.A. 1).
The record fui ther shows that Respondent throughout the negotiations insisted
on the "final say" in the resolution of grievances , while at the same time it adamantly
insisted on a no-strike clause and stubbornly rejected even the mildest form of
arbitration . In Herman Blumenthal 's words, the Company felt that "Grievances
are up to the Company and if outside arbitration is called in, it takes away the
powers of the Company . The Company felt that it wanted to manage the company
and with outside arbitration it could not do so .... The Company wanted to have
the final say in grievances ." Respondent rejected the Union 's compromise offer for
even a limited form of arbitration , giving Respondent the option of limiting arbitra-
tion either to discharge cases only , or, in the alternative , to other than discharge cases.
In addition , the Union offered Respondent the privilege of selecting the arbitrator.
While there is nothing inherently improper in an employer's insistence on a no-
strike clause 42-and, indeed , no-strike clauses are quite common in collective-
bargaining contracts-an employer 's insistence upon such a clause when coupled
with a refusal to provide arbitration may, along with other factors , provide reveal-
ing insight into the employer 's attitude toward the collective -bargaining process.
The Supreme Court has stated that "Plainly the agreement to arbitrate grievance
disputes is the quid pro quo for an agreement not to strike ." Textile Workers Union
v Lincoln Mills , 353 U.S. 448, 455.443 Respondent here adamantly resisted grant-
ing the Union the "quid pro quo" for the no-strike clause it had demanded . Instead,
it stubbornly insisted that the Union surrender its most potent economic weapon
in the redressing of grievances and that the Union entrust to it unilateral control in
the ultimate disposition of grievances , even those in which the Company itself was
charged with transgressions of the contract . On top of the no-strike and no arbitra-
tion clause , Respondent , as indicated below, insisted upon a liability clause and
offered no concessions on wages and other important terms and conditions of em.
ployment. As the Union asserted in the negotiations , no self-respecting union
could be expected to accept such proposals 44 For, acceptance of such proposals
might well have been construed by the employees as nothing less than abdication
by the Union of its statutory responsibility to give effective representation to the
employees . See "M" System , Inc., Mobile Home Division Mid-States Corporation,
129 NLRB 527, 550-551.45
Respondent 's insistence on the liability clause is another relevant element in deter-
mining Respondent 's frame of mind . This clause in substance provided that: "If
in the Union , either directly or indirectly authorizes , promotes, supports , or con-
dones any violation " of the no-strike clause, "the Company shall have such rights
and recourse as the law may provide and the Union shall be subject to such liability
as the law may provide ," to the full extent of its resources ; the Company agreed to
assume similar liability for similar violations on its part . The Company tenaciously
"See Shell Oil Company, Incorporated and Hawaii Employers ' Council, et al., 77
NLRB 1306.
48 See also United Steelworkers of America v. American Manufacturing Co, 363 U S
564, 567; Parks, et al v . I B E W , 52 LRRM 2281, 2299 (C 'A 4) ; United Textile Workers
of America, AFL-CIO, Local Union No. 1 20 v. Newberry Mills, Inc., 52 LRRM 2650,
2651 (C A. 4)
44 Cf. N .L R B. v. Reed & Prince Manufacturing Company, 205 F. 2d 131, 139 (C A. 1),
cert denied 346 U S 887 ; Vanderbilt Products, Inc V N L R.B , 297 F 2d 833, 834
(C A 2) ; N L R B. v. Tower Hosiery Mills, Inc., 180 F. 2d 701 , 704 (C.A. 4), cert. denied
340 U.S. 811.
45 See also , Reel, "The Duty To Bargain and the Right To Strike," 29 George Washing-
ton Law Review 479, 481-488. But compare, N L.R.B. v. Cummer-Oi aham Company,
279 F. 2d 757 (C.A. 5), reversing 122 NLRB 1044.
RADIATOR SPECIALTY COMPANY 371
insisted upon this clause throughout the negotiations and the Union resisted it with-
equal vigor. It is clear, however-and Respondent at the hearing did not claim
otherwise-that Respondent's proposal would have accorded it no greater rights than
that it already had by operation of law, including the right to remedy breaches of
the contract under Section 301 of the Labor Management Relations Act,46 and. the
right to take disciplinary action against employees guilty of violating the contract 47
Why then did Respondent so unyieldingly insist upon this clause? There is no
evidence, not even a claim, that the Company's insistence was prompted by breaches
of prior no-strike agreements by this Union at other plants. Cf. Local 164, et al.,
Brotherhood of Painters, et al. v. N.L.R.B., 293 F. 2d 133, 137. Nor did the clause
purport to assure Respondent liquidated damages as , for example, a performance
bond would do.48 Finally, Respondent can hardly claim that it sought the clause
in order to bind the International as only a local was to be a party to the contract,
for Respondent at the same time made it clear (and in this respect quite properly,
see infra) that it would never sign a contract without the signature of the Inter-
national , the certified union . The only inference I can draw, from the context of
Respondent's position on this and other major issues, is that Respondent's purpose
in pressing for the liability clause was to widen the area of disagreement between
itself and the Union in order to create another insuperable obstacle to agreement.
Cf. N.L.R.B. v. Darlington Veneer Company, Inc., 236 F. 2d 85, 87 (C.A. 4).
Indeed, the record is replete with evidence indicating that this clause was a recurrent
subject of bitter controversy throughout the negotiations. 49 It would appear that
absent a special situation, an employer disposed toward concluding an agreement
with a union would hardly have injected and adamantly insisted upon a controversial
clause of this type which ostensibly gave it no more than a duplicate of the rights it
already possessed by operation of law.
3. In the preceding section I treated the bargaining positions taken by Respond-
ent on various clauses not for the purpose of sitting "in judgment on the substantive
terms of collective bargaining" (N.L.R.B. v. American National Insurance Co., 343
U.S. 395, 404), for it certainly is not mine nor the Board's function to pass upon
the desirability or undesirability of bargaining proposals. "But," as pointed out by
the First Circuit in N.L.R.B. v. Reed & Prince Manufacturing Company, 205 F. 2d
131, 134, in commenting upon the Supreme Court's admonition in American National
Insurance Co., supra, against attempts by the Board to devise contracts for the
parties, "at the same time it seems clear that if the Board is not to be blinded by
empty talk and by mere surface motions of collective bargaining, it must take some
cognizance of the reasonableness of the positions taken by an employer in the course
of bargaining negotiations." Thus, the Board, in determining the bona fides of the
employer, is not precluded from considering whether the employer "fail[ed] to do
little more than reject" the Union's demands (N.L.R.B. v. Century Cement Mfg.
Co., Inc., 208 F. 2d 84, 86 (C.A. 2)); whether the employer was "willing to make
counter-suggestion or proposal" (N.L.R.B. v. George O. Pilling & Son Co., 119
F. 2d 32, 37 (C.A. 3)) ; whether he merely "maintains an attitude of 'take it or
leave it"' (N.L R.B. v. Insurance Agents' International Union, AFL-CIO, 361
U.S. 477, 485) ; whether his offers were merely "nominal and illusory 'concessions' "
(N.L.R.B. v. Marion G. Denton and Valedia W. Denton, d/bla Marden Mfg. Co.,
217 F. 2d 567, 570 (C.A. 5), cert. denied 348 U.S. 981); whether his offers "had
the slightest chance of acceptance by a self-respecting union" (Vanderbilt Products,
Inc. v. N.L.R.B., 297 F. 2d 833, 834 (C.A. 2)); and whether the employer was but
90 See Local 164i, Local 1287, and Local 1010, Brotherhood of Painters, Decorators and
Paperhangers of America, AFL-CIO, et al. (A D Cheatham Painting Co. of Jacksonville,
Fla) v NLRB., 293 F 2d 133, 135 (C A.D C), cert denied 368 U.S 824
47 N.L R B v Sands Manufacturing Co, 306 U.S 332, 344
48 This is not to say that Respondent's insistence on the liability clause would have been
justified even if motivated by good-faith considerations See discussion below
49 Thus, the Union, distrustful of Respondent's motive in pressing for the clause, ex-
pressed the fear that the clause could be used by Respondent to hold the Union liable for
the acts of nonmembers in the bargaining unit as well as those of members and, possibly,
even of "spies" planted by the Company. It is apparent to me, however, that the Union's
interpretation of the clause was erroneous, for even though the clause sought to hold the
Union liable for breaches of the no-strike clause which it "indirectly" authorized or con-
doned, the Union would not, in fact, have been liable unless union responsibility therefor
were established. However, I do not construe the Union's misinterpretation of the clause
as foreclosing me from making an independent appraisal of the Company's good faith in
advancing it in the first place.
717-672-64-vol. 143-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"giving the Union a runaround while purporting to be meeting with the Union for the
purpose of collective bargaining " (N.L.R.B. v. Athens Manufacturing Company, 161
F. 2d 8 (C.A. 5)). In short , as the Supreme Court has pointed out , "the Board
has been afforded flexibility to determine . . . whether a party's conduct at the
bargaining table evidences a real desire to come into agreement ." Insurance Agents'
International Union, AFL-CIO, 361 U.S. 477, 498. See also N .L.R.B. v . Fitzgerald
Mills Corporation , 313 F. 2d 260, 265-266 (C.A. 2).
4. In any event , insofar as Respondent 's liability proposal is concerned, I must
find that Respondent 's insistence on this clause constitutes an independent unfair labor
practice , even assuming that Respondent had advanced and maintained this proposal
in good faith . In North Carolina Furniture , Inc., 121 NLRB 41, the respondent
insisted that the union in that case-the certified local-include a liability clause
identical in terms to that in the instant case except that the liability there was to be
assumed by the parent of the certified local, as well as the loca160 The Trial
Examiner there found that the respondent 's requirement that the International pledge
its resources to reimburse the respondent for breach of contract damages was
evidence of lack of good faith and, therefore , a violation of Section 8(a)(5). In
upholding the Trial Examiner 's finding, the Board stated:
We agree with the Trial Examiner's conclusion but find it unnecessary to deter-
mine the good or bad faith of the Respondent . We base our unfair labor
practice on the fact that the provision in question [the liability clause] was
not a mandatory subject for collective bargaining as it did not relate to "wages,
hours, and other terms and conditions of employment" within the meaning of
Section 8(d) of the Act. In such circumstances and for the reasons set forth
in the recent decision of the Supreme Court of the United States in N.L.R.B. V.
Wooster Division of Borg-Warner Corporation , we find that whether or not
the Respondent acted in bad faith, its insistence on including the controversial
liability provision as a condition of agreement violated Section 8 (a) (5) and (1)
of the Act.
In N.L.R.B. v. Wooster Division of Borg-Warner Corporation, 356 U.S. 342, the
Supreme Court upheld the Board 's finding that the employer violated the Act by
insisting, to impasse , that the contract include a "ballot clause" requiring a secret
vote of all employees on the employer 's last offer before the Union could strike.
The Court, finding that this clause settled no terms or conditions of employment
and dealt "only with relations between the employees and their union ," (356 U.S.
342, 350), held that the subject was not within the scope of mandatory bargain-
ing. Similarly , the Court held that a recognition clause which , despite the certifica-
tion in the International 's name, recognized only the local union , did not come with-
in the definition of mandatory bargaining . Relying on Borg-Warner, the Board
and the courts have repeatedly held that performance bonds are not mandatory bar-
gaining subjects and may not be insisted upon as conditions precedent to the signing
of an agreement . As the court stated in Local 164, et al., Brotherhood of Painters,
etc., 293 F. 2d 133, 135, "The requirement of a performance bond has nothing to
do with the performance of work, but is a condition which must be met before work
is even undertaken."
Insistence upon a liability provision , such as the one here involved, is in principle
no different from insistence upon a performance bond . Both deal with enforcement
of collective-bargaining contracts and with security against contractual defaults, and
both fix relations between the employer and the union and not between the em-
ployer and employees . See F. McKenzie Davison , W. J. Hardy, Sr. and W. J.
Hardy, Jr., d/b/a Arlington Asphalt Company, 136 NLRB 742. Although both
may be of vital interest to the employer, they do not concern themselves with the
terms and conditions under which the employees are to work . This is not to say
that a party may not request or seek to negotiate on a nonmandatory collective bar-
gaining subject such as a liability provision . But it is to say that neither party may
insist upon it to point of impasse.51
In this connection , I note that Respondent 's liability clause was only one of several
subjects which remained unresolved in the bargaining and it may well be argued
that Respondent 's insistence on the clause did not in fact prevent consummation
so T note that the respondent in that case was represented by same counsel as Respondent
in this case.
m "The right . . to urge a non -mandatory subject of bargaining ceases short of ulti-
mate insistence " International Longshoremen 's Association, Ind. (N Y. Shipping Asso-
niation ) v. N.L R B , 277 F. 2d 681 , 683 (1C.A D C ).
RADIATOR SPECIALTY COMPANY 373
of a contract. But if I am correct in my conclusion that the clause involved a non-
mandatory bargaining subject , it follows that Respondent 's adamant insistence-not
just mere request-in the face of the Union 's repeated refusals to accept the clause,
was an independent violation , even if it may not have been the sole obstacle to
agreement5a Respondent's adamant insistence on the clause-irrespective of the
stage of insistence-operated to impair the bargaining process and to impede the
conclusion of an agreement on the mandatory subjects of bargaining . See Interna-
tional Brotherhood of Teamsters, etc., Local 294 (Conway's Express), 87 NLRB,
972, 978-979, affd. 195 F. 2d 402 (C.A. 2); Douds v. I.L.A. (New York Shipping
Assn.), 241 F. 2d 278, 282-283 (C.A. 2), affg. 147 F. Supp. 103, 112-113 (S.D.N.Y.).
It follows that Respondent's position with respect to the liability clause even if
"taken in good faith [could not be] rightly taken ... or ... maintained." (N.L.R.B.
v. Corsicana Cotton Mills, 178 F. 2d 344, 346-347 (C.A. 5) ).
5. While, as I have found, the Company breached its statutory duty to bargain
in good faith by various acts and conduct, the record establishes, and I find, that the
Union's conduct in the negotiations was not entirely free from reproach. I find,
however , that this conduct could not, and did not, justify Respondent 's unlawful
refusal to bargain.
Thus it is clear that the Union during the negotiations vigorously insisted that the
preamble clause name a local of the International-and not the International in
whose name the certification ran-as the party to the contract . Since it is "an
evasion of [ the statutory bargaining ] duty to insist that the certified agent not be a
party to the collective -bargaining contract" ( N.L.R.B . v. Wooster Division of the
Borg-Warner Corporation, 356 U.S. 342, 350), the Union's insistence, if carried
to an impasse, would have constituted a violation of the Act 53 I cannot find,
however, that the Union's position on this point was intransigent and fixed with
finality. Cf. J. H. Rutter-Rex Manufacturing Company, 115 NLRB 388, enfd. 245
F. 2d 594 (C.A. 5). On the contrary, the record shows that the Union had in-
formed the Company in the negotiations that the preamble clause "would not be a
major issue" blocking ultimate agreement. And it is clear that the Union had
offered to recede from its demand on the preamble, if only the Company conceded
on other major issues such as arbitration, wages and liability. Cf. N.L.R.B. v. Sun-
rise Lumber & Trim Co., 241 F. 2d 620, 624-625 (C.A. 2), cert. denied 355 U.S. 818.
The record further shows that during a period of the negotiations, International
Representative Minch resorted to what I found to be a "harassing" tactic to force the
Company's hand in the negotiations. Thus at the meeting held on December 7,
Minch, without prior notice to the Company, enlarged the 6-man employee com-
mittee to 38-an action which for a short time disrupted production in the plant
and also the negotiations. The Company, however, quickly accommodated itself
to the situation and it made no serious issue over this point. Indeed, the Company
itself found larger quarters for a meeting place and it thereafter met with the en-
larged committee until International Representative Femia, who later entered the
negotiations, agreed to revert to the original 6-man committee 54
The record also shows that Minch lost his temper in one of the bargaining ses-
sions and, directing his remarks to Herman Blumenthal, Minch said to him: You
know, Hilter was right .... Only he didn't go far enough." It is clear, however,
that Minch was provoked into making this obnoxious statement by Blumenthal's
prior remark that "we had been getting along fine prior to the time that the Union
had interjected" itself at the plant. Be that as it may, the record shows that the
parties continued to meet after this meeting and Minch was ultimately replaced by
Femia and others as to whose conduct Respondent apparently had no complaint.
In view of the foregoing, I find that the Union did not engage in the type of
misconduct or bargaining tactics which in any way justified Respondent's refusal
to bargain with it. Cf. N.L.R.B. v. Insurance Agents International Union, AFL-
52 Compare cases such as those involving unilateral wage increases and refusals to sub-
mit bargaining data, which have been held to he per se refusals to bargain, even where
the parties end up with an agreement. See NLRB v Benne Katz, etc, d/b/a Wtilliams-
burg Steel Products Co., 369 U.S. 736; N.L R.B. v. Yawman & Erbe Manufacturing Co,
187 F 2d 947, 949 (C A 2).
61 There is no evidence that Respondent had filed charges alleging a refusal to bargain by
the Union in violation of Section 8(b) (3) of the Act
cs It is noteworthy in this connection that whatever concessions Respondent made to
the Union on the minor and less substantial issues were made during the period when it
met with the large committee . Respondent 's revised counterproposals-some of which
were accepted by the Union-were submitted on January 17, 1962.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CIO, 361 U.S. 477. As the Board has pointed out , the reason a union's concurrent
misconduct or bargaining tactics may be relevant in determining whether an em-
ployer has fulfilled his statutory obligation to bargain is that "a union's refusal to
bargain in good faith may remove the possibility of negotiation and thus preclude
the existence of a situation in which the employer's own good faith can be tested."
Times Publishing Co., 72 NLRB 676, 682-683; see also Phelps Dodge Copper Prod-
ucts Corp., 101 NLRB 360, 368. The Union's conduct here can hardly be claimed
to preclude a test of Respondent's conduct. On this record I must find that Re-
spondent's refusal to bargain was motivated by its opposition to the principle of
collective bargaining rather than by any misconduct or bad -faith bargaining on the
part of the Union.
In conclusion , I find on the basis of the totality of Respondent 's conduct that
Respondent failed and refused to bargain in good faith with the Union, the duly
certified bargaining representative of its employees, thereby violating Section 8(a) (5)
and (1) of the Act. This conduct includes demonstrations of hostility to the Union,
interference with employee rights, refusals to meet with the Union with sufficient
frequency and regularity, and the positions taken by Respondent on major issues
in the negotiations-such as an unyielding insistence on a no-strike clause without
any form of arbitration, an adamant insistence on unilateral and unreviewable control
over the ultimate disposition of grievances, persistent demands of a liability clause
which gave Respondent no more than a duplicate of the rights it already had by
operation of law, and a tenacious adherence to existing wages and other existing
conditions of employment . I further find that Respondent 's adamant insistence on
the inclusion of the controversial liability provision in the bargaining contract-
which I found to be a nonmandatory subject of collective bargaining-constituted
an independent violation of Section 8(a)(5) and (1) of the Act.
D. Respondent 's refusal to reinstate the strikers
As already noted, the Union called a strike at the plant on May 15, 1962. As
also noted, the possibility of a strike was a matter of discussion among the Union
and the employees as far back as January 1962. By a letter dated January 17, 1962,
the Company (through Herman Blumenthal), referring to the then pending negotia-
tions and the parties' inability to reach agreement, told its employees:
. .. We would like to make it clear to you-as clear and as plain as we
possibly can-that a strike will not force us to sign contract terms which we
are not willing to sign.
We believe that most of you realize that you have more to lose than to
gain from a strike. Those who nevertheless wish to strike have, of course,
the right to do so. Just as truly, those who do not want to strike have a com-
plete right not to strike and to remain at work instead.
If anybody tries to prevent you from working or in any way harasses you or
places pressure on you to strike or stay away from work, you are entitled to
legal protection against such harassment or pressure. If a strike occurs but,
despite such a strike, you wish to continue at work, then you are positively
entitled to protection in doing so.
Those who do see fit to strike or stay away from work, will not only lose pay
they will also drawn no unemployment compensation. Most important of all,
they will run the risk of losing their jobs completely-for it is the intention of
this Company to fill jobs and replace permanently those who may see fit to
go on strike.
Think about these things carefully. Think about them earnestly-while
there is yet time. This matter is of vital importance to you and your family
and your future.
On January 8, 1963, International Representative Taylor sent the Company a
telegram which in pertinent part stated:
. on behalf of the URCLPWA International Union and Local Union Num-
ber 668 I present an unconditional offer to return to work all striking employees
of Radiator Speciality Company Charlotte, N.C. Arrangements have been
made for all employees to make personal application to return to work. Com-
mencing January 9, 1963, at 2:00 PM said employees will appear at the com-
pany office in groups of fifteen or less. This arrangement will continue at two
hour intervals throughout the office hours of your company until such time
RADIATOR SPECIALTY COMPANY 375
as the 153 striking employees have been allowed to make application to return
to work.55
The parties stipulated at the hearing that commencing January 9, 1963, and for
some days thereafter, groups of persons who worked for the Company on May 15,
1962, prior to the strike, came to the plant and that Personnel Manager Waggoner
read to them the following statement: "Sorry we don't have any openings today.
We will be glad for you to check back with us. I am noting your name as one
who has come in. We cannot undertake, however to call you or get in touch with
you, if and when we have an opening. If you wish to, you will have to check back
with us to see if and when we do have an opening."
It was further stipulated that at least 141 of the 153 strikers named in the com-
plaint (Appendix A attached to this Intermediate Report) had made personal
application at the plant and were read the foregoing statement by Waggoner. The
General Counsel stipulated that 10 of the remaining strikers did not make personal
application. No evidence was adduced on the question whether the remaining two
strikers had, or had not, made personal application.
It is well settled that a strike which is caused in whole, or in part, by an employer's
unfair labor practices is an unfair labor practice strike and the strikers are entitled
to reinstatement upon application, even if to do so requires the employer to dis-
charge the striker's replacements. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270,
278; N.L.R.B. v. West Coast Casket Co, 205 F. 2d 902, 907 (C.A. 9). There is
no doubt in this case, and I so find, that the strike was from its inception on May
15, 1962, an unfair labor practice strike, caused by Respondent's unlawful refusal to
bargain with the Union. It is clear from the record that the employees, dissatisfied
with the lack of progress of the negotiations which they attributed to Respondent's
attitude, called a strike to remedy the situation. The only question remaining is
whether the strikers have made unconditional requests for reinstatement.
I find that International Representative Taylor, by his telegraphic request of
January 8, 1963, made an unconditional request to reinstate all of the 153 strikers
named in the complaint. While Taylor in his telegram indicated that he had also
made "arrangements" for all the employees to make "personal application" by
appearing at the plant in groups of 15 or less, it is apparent that Taylor by these
"arrangements" merely sought to avoid a mass stampede of all 153 strikers at the
plant gates and, thus, to permit Respondent an opportunity to act upon his request
in an orderly fashion. I therefor find no particular significance in the fact that 12
strikers actually made no personal appearance at the plant, for Taylor clearly
indicated as to them, as well as to the rest of the strikers, that they had abandoned
the strike and were willing to return to work. In any event, considering Respond-
ent's wholesale denial of reinstatement, in identical form and language, to the 141
strikers who did make personal application, I find that personal application by the
12 strikers in question would have been a futile gesture.
In view of all of the foregoing, I find that Respondent, by rejecting the strikers'
application for reinstatement, violated Section 8(a)(3) and (1) of the Act.
IV. THE REMEDY
I shall recommend the customary cease-and-desist order and the affirmative relief
which is conventionally ordered in cases of this nature. More specifically, I shall
recommend that Respondent be ordered (1) to bargain collectively with the Union,
upon request; (2) to offer to all the strikers named in the complaint and also in
Appendix A attached to this Intermediate Report immediate and full reinstate-
ment to their former or substantially equivalent positions, without prejudice to their
seniority or other rights and privileges, discharging, if necessary, any replacements
in order to provide work for the strikers; and (3) to make whole all said strikers
for any loss of earnings they may have suffered by reason of the discrimination
against them, by payment to each of a sum of money equal to that which each
normally would have earned as wages from 5 days after the strikers' unconditional
request for reinstatement on January 8, 1963, to the date of their reinstatement or
Respondent's offer of reinstatement, less the net earnings of each during such period,
to be computed on a quarterly basis in the manner established by the Board in
55 The telegram also refers to a prior unconditional offer to return to work allegedly made
by Union Representatives Cramer and Smithhart on August 7, 1962 In reply to this tele-
gram, Herman Blumenthal denied that such offer had been made on August 7, 1962. I
credit Blumenthal's denial, as none of the Union's representatives (including ^Smithh'art)
who testified at the hearing claimed that such unconditional request had been made.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. W. Woolworth Company, 90 NLRB 289, 291-294. Interest shall be added at
the rate of 6 percent per annum. Isis Plumbing & Heating Co., 138 NLRB 716.
In view of the fact that the unfair labor practices committed are of a character
striking at the roots of employee rights safeguarded by the Act, I shall also
recommend that Respondent cease and desist from infringing in any manner upon
the rights guaranteed in Section 7 of the Act.
CONCLUSIONS OF LAW
1. Radiator Specialty Company is an employer engaged in commerce within the
meaning of the Act.
2. United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO,
is a labor organization within the meaning of the Act.
3. Respondent, in violation of Section 8(a)(1) of the Act, interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed in Section
7 of the Act by informing employees that Respondent will not sign a bargaining
agreement with the Union; by threatening employees with plant closing, discharge,
and other reprisals if they engage in union and other concerted activities, including
strike action; by promising employees benefits if they refrained from such activities;
by warning employees that union adherents would not get wage increases; and by
coercively questioning employees about union matters.
4. By failing and refusing to bargain in good faith with the Union as the exclu-
sive bargaining representative of its production and maintenance employees at its
Charlotte, North Carolina, plant, Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8(a) (5) and (1) of the Act.
5. The strike, which commenced on May 15, 1962, was caused by Respondent's
unfair labor practices, and hence was an unfair labor practice strike.
6. By refusing to reinstate the unfair labor practice strikers, upon their un-
conditional request, Respondent has discriminated in regard to their hire and tenure
of employment, thereby discouraging membership in the aforestated labor organi-
zation, and has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (a) (3) and (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (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 the case, I recommend that the Respondent, Radiator
Specialty Company, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Informing employees that Respondent will not sign a bargaining agreement
with the majority representative of its employees; threatening employees with plant
closing, discharge, and other reprisals if they engaged in union and other concerted
activities, including strike action; promising employees benefits if they refrained from
such activities; warning employees that union adherents would not get wage in-
creases; coercively questioning employees about union matters; and in any other
manner interfering with, restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
(b) Refusing, upon request, to bargain collectively with the United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, as the exclusive representa-
tive of all production and maintenance employees at Respondent's Charlotte, North
Carolina, plant, including plant clerical employees, but excluding office clerical
employees, the time-study man, scheduler, chemist, general foreman, floor foreman,
working supervisors, and all guards and supervisors as defined in the Act.
(c) Discouraging membership in the above-named Union, or in any other labor
organization, by refusing reinstatement to unfair labor practice strikers upon their
unconditional request, or by discriminating against its employees in any other
manner in regard to their hire or tenure of employment or any terms or conditions
of their employment.
2. Take the following affirmative action which it is found will effectuate the
policies of the Act:
(a) Upon request, bargain collectively with United Rubber, Cork, Linoleum
and Plastic Workers of America, AFL-CIO, as the exclusive representative of the
employees in the aforestated appropriate unit with respect to rates of pay, wages,
hours of employment, and other conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed agreement.
RADIATOR SPECIALTY COMPANY 377
(b) Offer to all strikers whose names are listed in Appendix A, attached hereto,
immediate and full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority or other rights and privileges, and make
them whole for any loss of pay each may have suffered because of the discrimina-
tion against them, in the manner set forth in the section of this report entitled
"The Remedy."
(c) Preserve and, upon request, make available to the Board or its agent, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records, necessary to analyze
the amounts of backpay due under the terms of this Recommended Order.
(d) Post at its Charlotte, North Carolina, plant, copies of the attached notice
marked "Appendix B."56 Copies of said notice, to be furnished by the Regional
Director for the Eleventh Region, shall, after being duly signed by Respondent's
authorized representative, be posted by Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken to insure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for the Eleventh Region, in writing, within 20
days from the receipt of this Intermediate Report, what steps the Respondent has
taken to comply therewith.57
se In the event that this Recommended Order be adapted by the Board, the words "A De-
cision and Order" shall be substituted for the words "A Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "A Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision
and Order "
67 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
1. George Adams
2. Vernell Aery
3. Herman L. Ardrey
4. Ralph Barber
5. Wardell Barber
6. Eddie Barringer
7. Charles Beasley, Jr.
8. Bessie D . Beatty
9. Alberta Bennett
10. Helen G. Bogle
11. Evans Brown
12. Rogers C. Brown
13. Doris L. Bryant
14. Milisia C. Bufford
15. Mayola Bufford
16. John Robert Burris
17. Robert Lewis Burton
18. Samuel D. Byers
19. Frances L. Caldwell
20. Sarah L. Caldwell
21. Helen Caraway
22. Lucy Carr
23. Veola B. Cathcart
24. Melvin S. Cherry
25. Lottie Chisholm
26. Beatsy Coleman
27. Robert Coleman
28. Jessie Counts
29. Jessie Cox, Jr.
30. Charles Culbert, Jr.
31. Hezekiah Cunningham
32. Ishigenia Davis
33. James Davis
APPENDIX A
34. Rev. Cornell E. Dewberry
35. Gilbert F. Donald
36. Johnie Mae Edwards
37. Barbara J. Ellerbe
38. Theadore Evans
39. Margaret Farley
40. Margaret Fenner
41. Rosetta P. Ferguson
42. Gertrude Ford
43. Kaye F. Ford
44. Pearline Frazier
45. Willie Frederick
46. James Gaither
47. John Garnett
48. James Gates
49. William Gill
50. James Andrew Good
51. Bernice Grant
52. Reginald L. Graves
53. Matilda Gray
54. Martha Greene
55. Gladys Gresham
56. Annie M. Grier
57. Jannie V. Grier
58. Joseph Grier
59. Cora L. Hailey
60. Edna K. Harper
61. Rachel M. Harper
62. Freddie Henderson
63. Harvey Henderson, Jr.
64. Thomas C. Hicklin
65. William Holmes
66. James Howard
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A-Continued
67. John Hunter 111. Marie Ray
68. Almetta Ivey 112. Alberta Redic
69. George Jackson , Jr. 113. Alphza Reid
70. Lewis Jackson 114. Beulah Reid
71. Robert Jamison 115. Fannie Roberts
72. James Jefferies 116. Dorothy Robinson
73. Thomas Johnson 117. Curtice Rorie
74. Willie J. Johnson, Jr. 118. Andrew Rountree
75. Buddy Jones 119. Larry Rowell
76. John H. Jones 120. William Sadler
77. John T. Jordon 121. Jessie Sanders
78. Edna R. Junious 122. Grady Seigle
79. Mitchell Kilgo 123. Doris Simmons
80. Earnest King 124. Roosevelt Simpson
81. William Knox 125. Beatrice Sims
82. Gordon W. Latimer 126. John Sizemore
83. Margaret Latimer 127. Alexander Sloan
84. John S. Lawerence 128. Cleatus Smith
85. Evelyn Leeper 129. James Smith
86. Betty J. Lewis 130. Richard Steele
87. George Lewis 131. John Stinson
88. James Lewis 132. Peggie Teeter
89. Spurgean Little 133. Johnnie Mc. Thomas
90. Johnny Love 134. Margaret Thomas
91. Willie Lyles 135. Curtis Thompsen
92. Thomas McCaskiel 136. Ethel Thornwell
93. Thomas A. McClary 137. Thelma Todd
94. John M. McCollum 138. Roy Tolliver
95. Margaret McCollugh 139. Ellen Tuggle
96. Rosella McCollough 140. Saylor Tyson
97. William McDuffie 141. Margaret Vanfield
98. Gaderene Mcllwain 142. Marion E. Walker
99. Essie McLain 143. Curtice Wallace
100. Charles McMurray 144. Lizzie Walton
101. John McNeal 145. Ellen Watte
102. Robert Miller 146. Floyd White
103. John Moore 147. George Wilks
104. John Morgan, Jr. 148. John Williams
105. Wilhemenia Nance 149. Mary H. Williams
106. George Norman 150. Robert Williams
107. Mattie Patton 151. Janie Wilson
108. Paul Peterson 152. Cynthia Winchester
109. Cleria Phifer 153. Rosemond Yongue
110. Robert Proctor
APPENDIX B
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 Rela-
tions Act, we hereby notify our employees that:
WE WILL NOT inform employees that we will not sign a bargaining contract
with United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-
CIO, or that we will close our plant, or discharge employees, or take other
reprisals against them because they engaged in union or other concerted ac-
tivities. Nor will we promise employees benefits to refrain from such activities.
Nor will we coercively question employees concerning their union activities.
WE WILL NOT discourage membership in United Rubber, Cork, Linoleum and
Plastic Workers of America, AFL-CIO, or in any other labor organization, by
refusing reinstatement to unfair labor practice strikers upon their uncondi-
tional request, or by discriminating in any other manner in regard to our em-
ployees' hire or tenure of employment or any term or condition of employment.
WE WILL offer all unfair labor practice strikers whose names are listed in
Appendix A attached to the Trial Examiner's Intermediate Report, immediate
and full reinstatement to their former or substantially equivalent positions, and
MANUELA MANUFACTURING CO., INC. 379
make them whole for any loss of pay each may have suffered as a result of
the discrimination against them.
WE WILL, upon request, bargain collectively with United Rubber, Cork,
Linoleum and Plastic Workers of America, AFL-CIO, as the representative
of the employees in the following appropriate unit with respect to rates of pay,
wages, hours of work , and other conditions of employment , and, if an under-
standing is reached , embody such understanding in a signed agreement. The
bargaining unit is:
All production and maintenance employees at our Charlotte, North
Carolina, plant, including plant clerical employees, but excluding office
clerical employees , the time-study man, scheduler , chemist, general fore-
man, floor foremen , working supervisors, and all guards and supervisors
as defined in the Act.
WE WILL NOT interfere with, restrain , or coerce our employees in the exercise
of these rights.
All our employees have the right to form , join, or assist any labor union, or not
to do so.
RADIATOR SPECIALTY COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify all employees named in Appendix A to the Trial Ex-
aminer's Intermediate Report , if presently serving in the Armed Forces of the United
States of their right to full reinstatement upon application in accordance with the
Selective Service Act and the Universal Military Training and Service Act of 1948,
as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1831
Nissen Building , 310 West Fourth Street , Winston-Salem , North Carolina, 27101,
Telephone No. 724-8356 , if they have any question concerning this notice or com-
pliance with its provisions.
Manuela Manufacturing Co., Inc. and International Ladies
Garment Workers Union , Local 601, AFL-CIO and The
Manuela Co ., Employees Grievance Committee . Case No. 24-
CA-1671. June 28, 1963
DECISION AND ORDER
On April 3, 1963, Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had not engaged in the unfair labor practices alleged
in the complaint and recommending that the complaint be dismissed
in its entirety, as set forth in the attached Intermediate Report.
Thereafter, the General Counsel filed exceptions to the Intermediate
Report and a supporting brief. The Respondent filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Fanning.]
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 Inter-
143 NLRB No. 49.