Rybolt Heater Co.

National Labor Relations Board - Board Decisions

Nov 4, 1968

173 N.L.R.B. 551 (N.L.R.B. 1968)

RYBOLT HEATER COMPANY 551
Rybolt Heater Company and United Steelworkers of
America , AFL-CIO. Case 8 -CA-4574
November 4, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND ZAGORIA
On December 29, 1967, Trial Examiner James F.
Foley issued his Decision 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
Trial Examiner's Decision. Thereafter, the General
Counsel and the Charging Party filed exceptions to
the Trial Examiner's Decision and supporting briefs,
and the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in this case, and hereby adopts the
findings,' conclusions, and recommendations of the
Trial Examiner to the extent consistent herewith.
A. Refusal To Bargain
1. The Board found, in a prior case involving the
same parties,' that the Respondent had refused to
bargain with the Union on September 20 and
November 15, 1966, and thereafter, in violation of
Section 8(a)(5) and (1) of the Act. Although the Trial
Examiner took cognizance of this Decision, he
nevertheless proceeded to consider de novo the issues
involved in that prior proceeding, and to find that the
Respondent did not unlawfully refuse to bargain with
the Union on and after September 20, 1966. Under
these circumstances, we find merit in the exceptions
of the General Counsel and the Charging Party in this
regard, and we adhere to the Board's finding made in
the earlier proceeding of an unlawful refusal to
bargain on September 20 and November 15, 1966,
and thereafter.
2. The instant complaint alleges that the Respon-
dent refused to bargain with the Union on February 9
and 17, 1967, and thereafter, in violation of Section
8(a)(5). The Trial Examiner found, and we agree, that
the issues involving these refusals raise questions of
compliance with the Board's order in the prior
proceeding. In view of the Board's outstanding order
that the Respondent bargain with the Union on
request, we find it unnecessary to determine in this
case whether the Respondent's alleged conduct
warrants the issuance of another bargaining order at
this time.'
3. The complaint also alleges an unlawful refusal
to bargain based on the Respondent's unilateral
promulgation of a no-solicitation rule on March 1,
1967.4 The Trial Examiner concluded that this
conduct was not violative of the Act. We agree with
this conclusion as the General Counsel has not
established that the promulgation of the rule consti-
tuted an actual change in working conditions. We do
not adopt, however, the Trial Examiner's comments
about managerial prerogatives in this matter.
B. The Strike
On August 8, 1966, the Respondent's employees
went out on what the Trial Examiner found, and we
agree, was an economic strike. As pointed out above,
the Respondent later unlawfully refused to bargain
with the Union beginning on or about September 20,
1966. As the Trial Examiner found, the Union kept
the striking employees informed of these refusals
during the course of the strike, and the record
establishes that the employees continued their strike
at least in part because of the Respondent's unlawful
conduct.' We find, therefore, that the Respondent's
unlawful refusal to bargain was an operative factor in
the prolongation of the strike, and that, as a result,
the strike, on or about September 20, 1966, was
converted from an economic to an unfair labor
practice strike.'
1The General Counsel and the Charging Party have excepted to the
Trial Examiner 's credibility findings on the ground, inter alia, that he
credited certain witnesses of the Respondent who were discredited by a
Trial Examiner in an earlier proceeding. It is the Board 's established
policy, however , not to overrule a Trial Examiner 's resolutions with
respect to credibility unless, as is not the case here, the clear
preponderance of all the relevant evidence in the case before him
convinces us that the resolutions are incorrect . Standard Dry Wall
Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3).
2Rybolt Heater Company, 165 NLRB No. 36
3See Quaker Tool & Die, Inc., 169 NLRB No. 166, Fitzgerald Mills
Corporation, 139 NLRB 802
4As the complaint does not allege , and the General Counsel did not
contend at the hearing, that the rule on its face was invalid , we shall not
pass upon the validity of the rule.
5 We find no basis in the record for the Trial Examiner 's finding that
the Union "could not have passed on to employees any truthful
information about bad faith bargaining by Respondent that could have
caused them to strike in protest against bad faith bargaining," nor for
his characterizations of the Union officials' motives or conduct during
the strike.
6Erie Resistor Corporation, 132 NLRB 621, Combined Metal Mfg.
Corp, 123 NLRB 895 , The Philip Carey Mfg Co., 140 NLRB 1103,
enfd. as modified 331 F 2d 730 (C.A. 6).
173 NLRB No. 89
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Refusal To Reinstate
On February 24, 1967, the Union sent a letter to
the Respondent offering to end the strike and
unconditionally requesting the reinstatement of all
striking employees.' The Respondent sent no reply to
the Union. In letters to its striking probationary
employees, however, the Respondent referred to the
Union's application and stated that "since your
30-day probationary period was not completed and
you have not worked, it does not appear that there
would be opportunity for your reemployment at this
time." The letters which were mailed on Thursday,
March 2, 1967, further stated that the employee had
to make application for work by Monday, March 6, or
the Respondent would assume he were not interested
in employment. Respondent's vice president Smith
admitted in his testimony that this letter was
somewhat less than an unconditional offer of rein-
statement, and therefore, in order to "clear up any
misunderstanding," the Respondent sent another
letter to each of the probationary employees on
March 4 advising them to make application by March
9 or consider themselves as having "voluntarily quit"
their jobs.
On March 2, the Respondent also addressed a letter
to 15 striking employees advising them to make
application for reemployment by March 6 or be
considered as having quit and "no longer interested in
employment." This letter stated further that although
the Union had also requested a resumption of
negotiations in its application for reinstatement, the
question of the Respondent's refusal to bargain was
now in the hands of the Board, and as it was "put
there by the Union leadership, it seems only fair that
the NLRB should make the decision, of whether
further negotiations should be had at this time."
The record reveals that between March 2 and April
28, some of the strikers either resumed their
employment with the Respondent or declined un-
conditional offers of reinstatement made to them
when they individually contacted the Respondent's
officials. On April 28, after the Union had filed the
unfair labor practice charges in the instant matter, the
Respondent sent an additional letter to each of the
striking employees in effect accepting the Union's
application, offering them unconditional reinstate-
ment to their former or substantially equivalent
positions. Thereafter, additional strikers contacted
the Respondent concerning reinstatement.
7The record shows that the striking employees , at various times,
authorized the Union to commence the strike, to continue it, and
finally to terminate it and seek their reinstatement . The Respondent
made no response to the Union 's request , and there is no evidence that
the Respondent then questioned the right of the Union to terminate the
strike or to apply on behalf of the strikers for reinstatement . See Ekco
It is clear that the Respondent was obligated to
reinstate the unfair labor practice strikers upon their
unconditional application.' It is also clear, regardless
of the Respondent's legal contention concerning its
duty to bargain, that the Union was the spokesman
for the striking employees and that it made an
unconditional application for reinstatement on their
behalf.' In response, the Respondent sent individual
letters to the striking employees in which it advised
those on probationary status that they had forfeited
their employment, and required all the strikers to
make individual application for reemployment.
Furthermore, after an unfair labor practice strike
which had lasted for more than 6 months, the
Respondent's letters of March 2 and 4 required the
striking employees to make application within but a
few days on penalty of forfeiting the right to
reemployment.
In our view, the Respondent's letters of March 2
and 4 made in response to the Union's unconditional
application for reinstatement, and containing the
requirement that all the striking employees make
individual application for reemployment and do so
within an unreasonably short period of time,' 0 were
sufficient to deter some of the strikers from returning
to work. Accordingly we find that the Respondent
violated Section 8(a)(3) and (1) of the Act.
THE REMEDY
Having found that the Respondent engaged in
certain unfair labor practices, we shall order it to
cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies
of the Act.
As we have found that the Respondent in many
cases refused to offer to reinstate its striking em-
ployees as requested on their behalf until April 28,
1967, we shall accordingly order the Respondent to
make each of these employees whole for any loss of
pay he may have suffered by reason of the
Respondent's discrimination against him, by payment
to him of a sum of money equal to that which he
normally would have earned as wages from March 1,
1967, the date 5 days following the Respondent's
receipt of the Union's February 24 application for
reinstatement to April 28, 1967 the date of the
Respondent's unconditional offer of reinstatement to
these employees, less net earnings during said period.
This reimbursement order shall not apply to those
Products Co., 117 NLRB 137, N.L.R.B. v. Posner, Inc., 304 F.2d 773
(C.A. 2), enfg. as modified 133 NLRB 1567.
8NL.R. B v Fotochrome, Inc., 343 F.2d 631 (C.A. 2 ), cert . denied
382 U.S. 833.
9N L R. B v. Pecheur Lozenge Co., 209 F 2d 393 (C.A. 2).
10See Harrah 's Club, 158 NLRB 758, Fred E. Nelson , dlbla Nelson
Industries, 102 NLRB 780, enfd . 208 F.2d 230 (C.A. 3).
RYBOLT HEATER COMPANY
employees who applied for reinstatement between
February 24 and April 28, 1967, and who either
accepted or declined unconditional offers of reinstate-
ment made to them by the Respondent.
Backpay shall be further computed in accordance
with the formulas and methods set forth in F W
Woolworth Company, 90 NLRB 289, plus interest at
the rate of 6 percent per annum as prescribed by the
Board in Isis Plumbing & Heating Co, 138 NLRB
716.
AMENDED CONCLUSIONS OF LAW
We hereby adopt the Trial Examiner's Conclusions
of Law 1, 2," and 4, and substitute for his
recommended Conclusion of Law 3 the following:
"3. By refusing to offer reinstatement to em-
ployees, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning
of Section 8(a)(3) and (1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Rybolt Heater Company, Ashland, Ohio, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discriminating against its employees because of
their membership in, or activities on behalf of United
Steelworkers of America, AFL-CIO, or any other
labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist labor organizations, to bargain collectively
through representatives of their own choosing, to
engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any and 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 Act.
2. Take the following affirmative action which the
Board finds necessary to effectuate the purposes of
the Act:
I
"'Case 8-CA-4574 " is hereby corrected to read "Case 8-CA-4401."
12 In the event that this Order is enforced by a decree of a United
States Court of Appeals, the notice shall be amended by substituting for
the words "a Decision and Order" the words "a Decree of the United
States Court of Appeals Enforcing an Order."
553
(a) Make whole all employees who were not
offered reinstatement until April 28, 1967, as
described in the Remedy section of this Decision, for
any losses they may have suffered by reason of the
discrimination against them, in the manner and to the
extent set forth in the Remedy section.
(b) Preserve and, upon request, make available to
the Board or its agents, for examination and copying,
all payroll records and reports and all other records
necessary to analyze the amount of backpay due
under the terms of this Order.
(c) Post at its place of business in Ashland, Ohio,
copies of the attached notice marked "Appendix"."2
Copies of said notice, on forms provided by the
Board's Regional Director for Region 8, after being
duly signed by the Respondent's representative, shall
be posted immediately upon receipt thereof, and be
maintained by it for 60 consecutive days, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that
said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Board's Regional Director for
Region 8, in writing, within 10 days from the date of
this Order, what steps the Respondent has taken to
comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Decision and Order of the National
Labor Relations Board and in order to effectuate the
policies of the National Labor Relations Act, as
amended , we hereby notify our employees that.
WE WILL NOT discriminate against our employees
because of their membership in, or activities on
behalf of United Steelworkers of America,
AFL-CIO, or any other labor organization.
WE WILL make whole all of our employees who
were on strike and not unconditionally offered
reinstatement until April 28, 1967, for any losses
they may have suffered as a result of the
discrimination against them.
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 labor organizations , to bargain
collectively through representatives of their own
choosing , to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities , except to the extent that such right
may be affected by an agreement requiring
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
membership in a labor organization as a condition
of employment as authorized in Section 8(a)(3) of
the Act.
RYBOLT HEATER
COMPANY
(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.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 720 Bulkley Building, 1501 Euclid Avenue,
Cleveland, Ohio 44115, Telephone 216-621-4465.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JAMES F. FOLEY, Trial Examiner. This case, 8-CA-4574,
was brought before the National Labor Relations Board (herein
called the Board) under Section 10(b) of the National Labor
Relations Act, as amended (herein called the Act) (61 Stat.
136, 73 Stat. 519), against Rybolt Heater Company (herein
called Respondent), on a complaint issued on May 31, 1967,
by the General Counsel of the Board (through the Regional
Director for the Board's Eighth Region at Cleveland, Ohio),
and an answer filed by Respondent on June 9, 1967. The
complaint is premised on a charge filed on April 20, 1967, by
United Steelworkers of America, AFL-CIO (herein called the
Union).
It is alleged in the complaint that Respondent, in violation
of Section 8(a)(5) and (1) of the Act, refused on February 9
and 17, 1967, to meet and negotiate with the Union, certified
on September 8, 1961, as bargaining representative for
Respondent's production and maintenance employees, al-
though it and the Union have engaged in collective bargaining
for these employees since the September 1961 certification,
and were parties to a collective-bargaining contract for the
period from August 1, 1964, to July 31, 1966, and on March
1, 1967, and thereafter, in violation of Section 8(a)(1) and (3)
of the Act, refused to reinstate or to reinstate unconditionally
20 striking employees who were either unfair labor practice
strikers or employees not permanently replaced, upon an
unconditional offer on February 24, 1967, by the Union for
them and on their behalf, to return to work, on or about
March 1, 1967, in violation of Section 8(a)(1) and (5) of the
Act, it posted, promulgated and placed in effect, without prior
notification to, or consultation with, the Union, the no-
solicitation rule that "there shall be no soliciting for Union
membership, other union activities, or any other purposes
inside this factory during working hours."
Respondent, in its answer, admits that as alleged in the
complaint, the Union was certified as bargaining representative
of its production and maintenance employees, that it and the
Union have engaged in collective bargaining, and that they
were parties to a collective-bargaining contract for the period
from August 1, 1964, to July 31, 1966. It admits it has refused
to meet and negotiate with the Union since the latter filed an
unfair practice charge against it on October 28, 1966. It denies
that it refused to meet and bargain with the Union prior to the
Union's filing of the October 28, 1966, unfair labor charge. It
also denies that its refusal to meet and bargain with the Union
since October 28, 1966, is a refusal to bargain within the
meaning of the Act, or is a violation of the Act. It makes the
affirmative defense that it has the right to refrain from
bargaining until the merits of the complaint premised on the
October 28, 1966, charge are deterrruned in the complete
administrative process, including proceedings before the
United States Court of Appeals. It also affirmatively defends
that the Union ceased to be the bargaining representative of its
employees by the expiration of the outstanding collective-
bargaining contract on July 31, 1966, and by the Union's loss
on July 31, 1966, of the status of majority representative of its
production and maintenance employees.
Respondent admits that the Union informed it on February
24, 1967, that it was making an unconditional offer on behalf
of the employees who had been striking since August 8, 1966,
to return to work. It further admits that some employees
returned to work after the Union made this statement to it.
Respondent denies, however, that it violated the Act after the
statement of the unconditional offer of February 24, 1967. It
answers affirmatively that it has offered the striking employees
unconditionally their former or substantially equivalent posi-
tions.
Respondent admits that it placed in effect on or about
March 1, 1967, the no-solicitation rule stated in the complaint,
without notice to or consultation with the Union, but denies
that it violated the Act by doing so.
A hearing on the complaint and answer was held before me
on June 28, 29, and 30 in Ashland, Ohio. The parties were
afforded an opportunity to present evidence, make oral
argument, and file briefs. Briefs were filed by General Counsel
and Respondent after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF RESPONDENT
Respondent, an Ohio corporation, with its principal office
and place of business in Ashland, Ohio, is engaged in the
manufacture and sale of heating and air conditioning units.
Annually, in the course and conduct of its business operations,
it ships goods and products valued in excess of $50,000
directly to points outside the State of Ohio. As the Board
found in Rybolt Heater Company, Case 8-CA-4401, 165
NLRB No. 36, Respondent is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act. Assumption of jurisdiction will effectuate the purposes of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of the
Act.
RYBOLT HEATER COMPANY 555
111. THE UNFAIR LABOR PRACTICES
A. Background Evidence
This case is a sequel to the case, Rybolt Heater Company
and United Steelworkers of America, AFL-CIO, 8-CA-4401,
in which Trial Examiner Donovan rendered a decision on April
12, 1967, which was affirmed by the Board on June 13, 1967
(165 NLRB No. 36). The case before me involves the same
dispute with the additional developments that occurred after
the record was closed on January 31, 1967, in the earlier case.
I hereby take official notice of the record, and evidentiary
findings made by Trial Examiner Donovan and affirmed by the
Board in the earlier case. I incorporate the evidentiary findings
in my Decision in this proceeding.
Briefly, the evidence and findings in Case 8-CA-4401 cover
the following factual situation In May 1966, the Union
notified the Respondent that it wished to negotiate a new
contract to be effective on the expiration of the then existing
contract which expired on July 31, 1966. The parties met to
negotiate for the first time on June 24, although they had had
a prior meeting. They met again on July 14, 28, and 30 and
August 6, 13 or 14, and 22, 1966. The contract terminating on
July 31, 1966, and which the parties agreed during negotia-
tions to extend until August 7, 1966, was for 2 years with a
1-year reopener. From the outset of negotiations Respondent
stated it could not afford a wage increase. It is clear that the
major objective of the Union was substantial wage increases.
Respondent offered a 2-year 4-month contract with no
reopener and the same wage rates as in the prior contract with
the exception of lower rates in some classifications. Along with
higher wage rates, the Union was seeking the same contract
term of 2 years and a 1-year wage reopener, and some fringe
benefits.
On July 28, 1966, the employees met at the hall of the
Union on Orange Street, Ashland, Ohio, and voted to strike.
The action of the employees was considered by the Union
representatives as a recommendation, as a decision to strike is
made by the Union, and by its district directors and staff
representatives when they have been delegated this authority
by the Union. In support of its position that it could not afford
a wage increase, Respondent at the July 30 meeting offered a
financial statement entitled "Report On Examination For the
Year Ended December 31, 1965." Forrest Reeder, the Union's
staff representative, and chief negotiator, refused to look at
the statement. He said that the financial statement was
premature as noneconomic issues were being discussed, and the
Union had not requested it He also used earthy terms to
convey to those at the meeting that he would not use the
report for toilet paper.' The financial report was on the
bargaining table at the following meetings in view of the
persons present including Reeder, but the latter did not look at
it.
The Union at the August 6, 1966, meeting, informed the
Respondent that it would strike on Monday, August 8. On
August 6, Respondent offered a 5-cent-an-hour general
increase and the remaining terms of the prior contract
unchanged, for a term of 2 years to expire in 1968.
Respondent stated that in offering the wage increase it was
gambling that its earnings would improve by reason of an
expanded sales force and new machinery. Respondent also
stated that the foregoing proposal was contingent upon the
employees continuing to work and not going on strike on
August 8 as scheduled.
On Monday, August 8, 1966, the production and mainte-
nance employees, about 32 in number, struck. The strike did
not end until February 24, 1967. At the August 14 meeting,
the Respondent informed the Union that the 5-cent-an-hour
offer was withdrawn, and its offer at that time was the terms
of the expired contract for a period of 2 years. At the August
22 meeting, at which a Federal Mediator was present,
Respondent stated it was unable to pay any increase in wages
and again offered the terms of the expired contract.
Respondent also stated that its offer of a 5-percent-an-hour
wage increase was contingent on there being no strike, and the
strike had rendered it more unable than ever to pay the
increase. The Union rejected Respondent's proposal.
Except during the early morning of August 8, when the
strike began, and on September 1 and 7, no more than five
pickets patrolled in front of Respondent's parking lot,
including the entrance. All the production and maintenance
employees, approximately 32, were present on the morning of
August 8. The lot is directly across the street from the
entrance to the plant. There was a-shac"&one end of the lot.
The pickets occasionally lou gd or rested` in a few chairs
located outside the shack. OIAugust 15, William R. Buzzard,
the plant superintendent, to k pictures of the pickets from a
window of one of the offices on the front side of the plant.
When a delivery van left the parking lot with a large crate or
carton containing Respondent's products, Reeder and
Hockenberry, a striking employee, followed it in Reeder's car.
Buzzard followed the van and Reeder's car, and on occasion
took motion pictures of the two vehicles in front of him. The
van proceeded to Mansfield, a nearby town. Nothing occurred
of any importance.
A few employees went back to work in the plant on
September 1. Stuart A. Smith, vice president of Respondent,
took motion pictures of the picket line from a window of one
of the offices in the front of the plant. At the close of the
workday, the employees who worked entered an enclosed van
in the parking lot. The van was stopped at the parking lot exit,
and Hockenberry, a striking employee, asked the employees
why they were working during the strike. Hockenberry lay
down briefly in front of the van,' and at one point had some
folded papers in his hand. Company witnesses testified he was
trying to light the papers as a torch, while Hockenberry stated
'The financial report was prepared for Respondent by Frank,
Seringer and Chaney , certified public accountants . Its authenticity was
not questioned when it was offered in evidence, and it was received in
evidence without objection . It is an informative report in depth, and
prepared in accordance with generally accepted good accounting
practices. The report reflects the financial condition stated in the
following paragraph
Respondent had a deficit in net income for the year 1965 of
$104,324.18 and only a net income of $4,776.19 for 1964 It had an
accumulated deficit on December 31, 1965, of $ 346,424.32, and of
$242,100.14 on December 31, 1964 . Net sales were $ 723,475.99 for
1965 and $1 ,012,453.99 for 1964 . Net sales for 1965 were
$288,978 .00 less than those for 1964. Stockholder equity, which was
originally $482,512 . 50, was $136 ,088.18 , on December 31, 1965, and
$240,412 36 on December 31, 1964 . There was a decrease during 1965
of $104,32418 . Working capital on December 31, 1965, was
$78,957.17, and on December 31, 1964, was $ 168,928.75 There was a
decrease in working capital during 1965 of $89,971.58.
2Reeder gave the conclusionary testimony that Hockenberry was
just fooling around.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he was trying to catch some bees in a bag. A policeman, who
was at the scene told the pickets to let the van leave. The van
was driven off. Then Buzzard, the plant superintendent, drove
his car into the lot, and on leaving came in contact with or
grazed one of the pickets. Vice President Smith took motion
pictures of some of this parking lot activity. On September 7,
at closing time, a number of strikers appeared and parked their
cars across from the driveway where the non-striking em-
ployees would emerge from the plant. Police came to the scene
and nothing occurred. Motion pictures were again taken by
one of Respondent's representatives.
In September, one of Respondent's dealers drove up in a
truck with his wife and child to pick up some of Respondent's
furnaces.3 The pickets talked to the dealer, and while they
were talking to him Buzzard appeared from the plant and
pointed an unloaded camera at them. The pickets ceased to
group. On a few other occasions, Buzzard and Smith pretended
to take pictures of pickets who had grouped to converse with
delivery men or dealers who were there to deliver materials to
Respondent or pick up its products.
On September 20, 1966, Reeder requested Respondent by
letter, that it make available to the Union "for examination
and study your books and records so that we might bargain
intelligently on economic matters." Reeder stated in the letter
that he was making the request because Respondent had
withdrawn the offer of a wage increase "because of claimed
inability to pay." He also stated that he did not concede that a
5-cent-an-hour increase would be adequate. Respondent did
not reply to this request. At a negotiations' meeting on
October 17, Respondent presented to John S. Johns, the
Union's district director, the same financial report (which was
for the years 1964 and 1965, and was dated May 6, 1966) that
it presented on July 30. The evidence of record does not
disclose what else transpired at this meeting As stated supra,
the Umon filed an unfair labor practice charge on October 28,
1966.
The Union charged the Respondent with violating Section
8(a)(1) and (5) of the Act by the following conduct-
1. By interfering with picketing at the premises of
Respondent, including driving in and about the picket line
at high and unreasonable rates of speed and striking pickets
with motor vehicles.
2. By misrepresenting the nature of the strike at the
premises of Respondent.
3. By soliciting strikers back to work and urging them to
abandon the strike.
4. By engaging in surveillance of pickets and strikers.
5. By refusing to bargain in good faith with the Union in
the following respects'
a. By failing to make available its books and records
to substantiate a claimed inability to pay after due
demand therefor.
b. By failing to furnish a negotiator with authority to
bargain and consummate agreements.
c. By subrruttmg a first and final proposal and then
refusing to discuss the Union's proposal and maintaining
a closed mind thereon.
d. By withdrawing a firm offer because it was not
accepted immediately and vacillating in its discussions.
e. By refusing to agree to check-off union dues while
providing check-off for other payroll deductions.
f. By other instances of failure to engage in good
faith collective bargaining.
On November 10, 1966, Reeder telephoned Vice President
Smith and asked him in the telephone conversation if he would
sit down and negotiate that evening or at any time. Smith
replied that he was unable to meet with the Union because the
Union had filed charges, and the matter as far as the
Respondent was concerned was in the hands of its attorney.
Smith also said Respondent would not bargain until it saw
what disposition was made of the charge. On the same date the
Union, in a telegram, demanded resumption of negotiations,
and "immediate production and availability of your books and
records re inability to pay plea." Respondent, in a telegram
dated November 15, replied that "upon your own application
this matter is now in the hands of the National Labor
Relations Board."
On December 14, 1966, the Regional Director, after an
investigation, disposed of the Union's October 28, 1966,
charge. In his letter to the Union's attorney, who filed the
charge, he stated:
With respect to the following enumerated allegations of
the charge, it was concluded that the evidence did not
warrant issuance of complaint for the reasons set forth
hereinafter:
1. The action of a supervisor of the Employer in
accidentally striking two pickets while slowly exiting from
the Employer's parking lot, when the exit was blocked by
strikers, did not interfere with the Section 7 rights of the
employees.
2. The fact that Employer's counsel inadvertantly
referred to the strike in an injunction petition as illegal, and
was so quoted in the newspapers, does not constitute a
violation of the Act as the allegations of a pleading are
privileged.
3. The solicitation of strikers to return to work,
unaccompanied by threats or promises of benefit as was the
situation here, is not violative of the Act.
5b. The evidence indicated that the Employer's negotia-
tors did bargain from a position of no wage increase
gradually upwards to a 5¢ increase and other benefits.
5c. The course of negotiations indicate that the Employ-
er did submit various proposals, did not confine its
proposals to a first and final offer, and did discuss and listen
to the Union proposals.
5d. While the Employer did make a 5¢ wage increase
offer, along with other proposals, on August 6, 1966, it was
not withdrawn until August 22, 1966. The withdrawal,
under the circumstances, cannot be concluded to indicate a
refusal to bargain in good faith.
5e. Although the Employer originally proposed deletion
of the check-off claiise, a subsequent offer to reinstate the
old contract was understood to include reinstatement of the
former check-off provision.
You are accordingly notified that those aforementioned
portions of the charge are hereby dismissed, and that
complaint has been issued against Respondent alledgmg
3Respondent manufactures furnaces and air-conditioning equip-
ment
RYBOLT HEATER COMPANY 557
violations of Section 8(a)(1) and (5) of the Act with respect
to item 4 and 5(a) and 5(f) of the charge.
The Union was then apprised of its right to obtain a review of
the Regional Director's disposition of the charge as provided
by Section 102.19 of the Board's Rules and Regulations, Series
8, as amended. There is no evidence before me that the Union
sought such a review.
The complaint which was issued on December 12, 1966,
alleged a refusal to bargain in violation of Section 8(a)(5) and
(1) of the Act by the refusal to furnish books and records on
and after September 20, 1966, and a refusal to meet and
negotiate on and after November 10, 1966, unless the charge
was withdrawn or otherwise disposed of. It also alleged that
Respondent violated Section 8(a)(1) of the Act by the taking
of still photographs, pictures and moving pictures while the
employees were engaged in peaceful picketing and patrolling in
and about Respondent's plant. Respondent denied in its
answer that it refused to bargain, and stated affirmatively it
was always available to bargain, but the striking employees
refused to negotiate, and were more interested in, and spent
nearly all of their time in., striking, picketing, disturbing the
peace, calling Respondent's agents vile and indecent names and
preferring charges before the National Labor Relations Board,
and had no real desire to negotiate a contract except upon
their own terms and under constant pressure. Respondent
denied it refused to furnish records showing its financial
condition. It affirmatively stated that it did furnish such
records, but that the Union refused to look at them, and at no
time indicated specifically what books and records it was
requesting. Respondent denied that it took pictures and
photographs for the purpose of illegal surveillance of striking
employees. It admitted it took pictures and photographs, but
stated it did so for the purpose of showing violence and
disturbance of the peace in front of its premises and for the
purpose of obtaining evidence showing violence on the picket
line to be used in an injunction suit it filed against the Union
in the Common Pleas Court of Ashland County, Ohio. As
stated supra, evidence was taken on the complaint and answer
by Trial Examiner Donovan on January 31, 1967.
On April 12, 1967, the Trial Examiner issued his decision.
He found a refusal to bargain for refusing to meet and
negotiate on and after November 15, 1966, and for refusing to
furnish on and after September 20, 1966, financial books and
records to adequately reflect the Respondent's financial
condition in 1966. To the Examiner, the bringing up to date of
the financial report for 1964 and 1965 would at least have
placed the burden on the Union to indicate whether these
financial data were or were not adequate. The Trial
Examiner's recommended order, which is the order of the
Board by reasons of the Board's decision and order of June 13,
1967, requires Respondent to meet and negotiate with the
Union, upon request, and to make available to the Union its
financial books and records which will reflect its financial
condition for 1966 and thereafter, and to refrain from
photographing or pretending to photograph protected picket
line strike activity with the object of interfering with
employees' rights under Section 7 of the Act.
B. The Issues in Case 8-CA-4574 Tried on June 28, 29, and
30, 1967
The issues placed before me, Trial Examiner James Foley,
in Case 8 -CA-4574 are the following:
Has the Respondent continued to refuse to meet and
negotiate with the Union since on or about February 9,
1967, and if so is the refusal a compliance and enforcement
matter in case 8 -CA-4401, and properly before me in this
proceeding , Case 8-CA-4574, only as evidence in con-
nection with the alleged refusal to reinstate the strikers and
the alleged promulgation of an illegal no-solicitation rule')
Did the Union on February 24, 1967, make a bona fide
unconditional offer on behalf of the striking employees to
return to work?
Was the economic strike initiated by the Union on
August 8, 1966, converted into an unfair labor practice by
Respondent between September 20, 1966 and the date of
February 24, 1967, when the Union terminated it?
Did the Respondent make an offer to the striking
employees to reinstate them to their former or substantially
similar employment unconditionally , and without qualifica-
tion or limitation , and at the wages the jobs paid
independently of the strike?
Did Respondent violate Sections 8(a)(1) and (5) of the
Act by placing in effect on or about March 1, 1967, the
no-solicitation rule that "there shall be no soliciting for
Union membership , other union activities, or any other
purposes inside this factory during working hours?"
C. The Evidence in Case 8-CA-45745
1. The demands and refusals to bargain
On February 7, 1967, the Union's Staff Representative
Reeder sent a letter to Vice President Smith of Respondent in
which he asked him to meet with him to negotiate a
collective-bargaining contract. Smith replied by letter on
February 9, 1967, that, upon the Union's application the
matter between the Union and Respondent had been placed in
the hands of the Board. On February 13, 1967, Reeder again
wrote to Smith requesting a meeting and bargaining for a
contract. Reeder in reference to Smith's statement in his letter
of February 9 that the matter was in the hands of the Board
4At the hearing before Trial Examiner Donovan , Smith testified that
he did not reply to the Union 's request of September for financial
books and records because the Union had the financial report that it
made available on July 30. He testified that it was all that Respondent
had at the time. The evidence persuaded the Examiner that Respondent
could have supplemented the financial report it made available to make
it meaningful at the time the Union requested the information . Reeder
testified at that hearing that he wanted books and records prepared by a
certified public accountant that would disclose the up to date financial
position of the Respondent . He testified that financial data could be
made available on a quarterly year basis He testified that he did not
know what was in the financial report that Respondent made available
at the July 30 meeting , and did not attempt to find out as he was not
ready to discuss a financial statement . He testified that on October 17,
1966, the financial report was given to District Director Johns, not to
him, and it was a different copy than the copy Respondent presented
on July 30 . He testified that he did not find out what was in it on
October 17, as he did not look at it . He testified that he wanted a
response to his request of September 20. Two employees were members
of the Union 's negotiating committee along with Reeder and Johns.
They were present during the bargaining on July 30 and August 6, 13 or
14, ?nd 22, 1966, when the financial report was on the bargaining table.
Credibility resolutions of conflicts in evidence have been made by
me upon consideration of all relevant evidence in context including
demeanor testimony.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated that the matter could be disposed of by an agreement
on a new contract, but that to reach an agreement they would
have to meet. Smith replied by letter on February 17 that
Respondent had been willing to meet with the Union and had
met with it until the Union filed the charge on October 28,
1966. Smith stated that Respondent had met with the Union
even when the Union committee failed to show.6 Smith then
related that Respondent awaited the decision of the Trial
Examiner in the hearing held January 31, 1967.
On February 24, 1967, District Director John S. Johns
wrote to the Respondent that on behalf of all the striking
employees he was offering them unconditionally for employ-
ment, and was advising the Respondent that the Union was
terminating the current strike. Johns also stated in the letter
that he was requesting Respondent's immediate resumption of
negotiations with the Union, the certified bargaining represen-
tative, and was advising Respondent that the excuse it had
given, "the pendency of the NLRB unfair labor practice
charges " was no excuse for evading its statutory duty to
bargain. He concluded with the words, "I would appreciate
your further advice."
On March 1 or 2, 1967, Respondent informed the striking
employees of the offer to return to work made by Johns on
their behalf, and informed them that if they did not make
"application for reemployment" by a date of 5 days from the
date of the letter Respondent would assume they were no
longer interested in being employed by Respondent.7 Respon-
dent, in the March 2 letter, which was addressed to the strikers
that had permanent status, notified these striking employees of
Johns' request in the February 24 letter for renewal of
negotiations. Respondent then stated in that letter that until
the charge was filed with the Board by the Union, Respondent
negotiated with the Union in good faith, but since the question
of negotiation was placed in the hands of the Board by the
Union, "it seems only fair that the NLRB should make the
decision, of whether further negotiations should be had at this
time."
As stated supra, Trial Examiner Donovan issued his decision
in the earlier case on April 12, 1967. On April 20, 1967, the
Union, by its Attorney Herschel Krieger, requested Respon-
dent to meet and bargain, and to make available to the Union
"financial books and records" showing its financial condition
for 1966, and thereafter On the same day, the Union filed the
unfair labor practice charge on which the complaint in this
proceeding is premised. The complaint was issued on May 31,
1967. The Board's decision affirming Donovan's decision was
issued on June 13, 1967. On June 15, 1967, Krieger wrote to
Respondent. In the letter he referred to the Board's June 13
decision, and then made the same requests that he made in his
April 20 letter. The evidence of record does not show any
replies to Krieger's two letters. It is undisputed that since the
Board affirmed the decision of Trial Examiner Donovan,
Respondent has refused to meet with the Union or furnish any
financial data for the reason that it is awaiting a decision of the
United States Court of Appeals.
6This was the meeting on the morning of October 17. District
Director John Johns and Reeder represented the Union and Vice
President Smith and Plant Superintendent Buzzard represented the
Respondent. The employees on the Union's committee were working
'elsewhere
2. Respondent's conduct alleged to have converted the strike
into an unfair labor practice strike
General Counsel contends that Staff Representative
Reeder's communication with the strikers regarding the
negotiations with Respondent or lack of them prolonged the
strike and converted it into an unfair labor practice strike.
General Counsel does not rely on Respondent's photographing
of pretending to photograph the Union's strike activities.
General Counsel and Respondent stipulated that Respondent
did not engage in any violation of Section 8(a)(5) of the Act
until September 20, and then only with respect to the refusal
of the Union's request for financial books and records. The
refusal to meet and negotiate was added on and after
November 15, 1966.
As stated supra, the Regional Director dismissed the
Union's charge of October 28, 1966, that Respondent refused
to bargain, insofar as it alleged that it failed to furnish a
negotiator with authority to bargain for and consummate
agreements, by subnutting a first and final proposal and then
refusing to discuss the Union's proposal and maintaining a
closed mind thereon, by withdrawing a firm offer because it
was not accepted immediately and vacillating in its discussions,
and by refusing to agree to check-off union dues while
providing check-off for other payroll deductions. In dismissing
these allegations of the charge, the Regional Director found
that Respondent bargained from no wage increase gradually
upwards to an increase of 5 cents an hour and other benefits,
that the Respondent submitted various proposals and did not
confine itself to a first and final offer, and did discuss and
listen to the Union proposals, that Respondent's offer of the
wage increase on August 6, 1966, was not withdrawn until
August 22, and the withdrawal, under the circumstances, could
not be considered a refusal to bargain in good faith, and
although Respondent initially proposed deletion of the
check-off clause, its subsequent offer to reinstate the old
contract included the offer to retain the check-off clause.
The Regional Director's dismissal left only the charge of a
Section 8(a)(5) violation in terms of an allegation of a refusal
to furnish financial data. The refusal to meet and negotiate did
not begin until November 15, about 2 weeks after the filing of
the charge. So from the beginning of the strike on August 8
until the Respondent's refusal to respond to the Union's
demands of September 20 to furnish financial data there was
no illegal conduct by Respondent that Reeder could disclose
to the strikers that converted the economic strike. From a
reasonable date by which Respondent should have responded
to the September 20 request, namely September 25, until
November 15, the only illegal conduct of Respondent that
Reeder could pass on to the strikers was the refusal to furnish
the financial books and records as he had requested. From
November 15 and thereafter until the strike ended on
February 24, 1967, all that Reeder could tell the strikers that
Respondent had perpetrated was the refusal to furnish the
books and records after September 15, and the refusal on and
after November 15 to meet and negotiate.
7The offer made by the Union on February 24 on behalf of the
strikers , and Respondent's letters to the strikers following the Union's
offer will be discussed in detail later in connection with the issue of
Respondent's liability with respect to reinstatement.
RYBOLT HEATER COMPANY 559
I credit Reeder's testimony that he informed the strikers
during the course of the strike that the Union requested the
Respondent on September 20, 1966, to furnish books and
records, and that Respondent was asked to meet and bargain
on November 10, 1966, and that Respondent did not furnish
any financial books, records or other information in response
to the request of September 20, and refused on and after
November 15, 1966, to meet and bargain. I also credit
Reeder's testimony the strikers were kept informed of the
continuing refusal of the Respondent to meet and negotiate or
furnish financial books and records, and particularly the
Respondent's refusals by letters to the Union dated February 9
and 17, 1967, to meet with the Union in accordance with the
Union's request in letters dated February 7 and 17, 1967, and
refusals to meet stated in Respondent's letters to employees
dated March 1 or 2, 1967, as requested by the Union in its
letter of February 24, 1967, to Respondent. I also find from
Reeder's testimony that he informed the strikers, either
directly or indirectly, through Hockenberry or Hines, or other
employees closely associated with him, of the Union's requests
of April 20, and June 15, 1967, for financial books and
records, and to meet and bargain, and that Respondent did not
reply to these letters. I also find that the strikers were
informed directly or indirectly by Reeder that Respondent
informed the Union on February 9 and 17, 1967, it was
refusing to bargain because the Union had placed the matter in
the hands of the Board by the filing of the charges, and that it
awaited a decision of the Trial Examiner on the charges he
heard on January 31, 1967. I find from the evidence that
Reeder, directly or indirectly, informed the strikers that
although Respondent did not reply to the Union's letters of
April 20, and June 15, 1967, it was taking the position after
the Trial Examiner's decision of April 12, 1967, that it was
awaiting a decision of the Board, and that after the Board
rendered its decision on June 13, 1967, Respondent's position
has been that it is awaiting a decision of the court of appeals.'
3. The Union's offer on February 24, 1967, of the Return of
the strikers to their employment
As stated supra, District Director Johns, in his February 24,
1967, letter, stated he was offering the return of the strikers to
their employment. His words were as follows:
On behalf of all your striking employees, I am hereby
offering them and each of them for employment uncondi-
tionally, and am also advising that this Union is hereby
terminating the current strike.
Reeder testified that he talked to strikers Butts, Daliere,
Hines, Hockenberry, Hurst, Kaufman, Kircher, Markel,
Spencer, Van Bremen, and Pryor. He testified that he did not
talk to strikers, Lamb, Mumaw, Parker and Robinson. He
testified he could not recall whether he talked to Myers, that
he did not talk to Gregory but talked to his wife, and did not
talk to Beasley9 or Buchanan about their backpay claims.
Reeder testified that "there was nobody that said that they
definitely wanted their jobs or did not want their job. They
would think it over when the time came to actually go back."
In response to the question whether the strikers had other
jobs, Reeder testified that "There is many of them said they
had jobs elsewhere, but they told me they didn't know
whether they would drop that job and go back or not." In
response to the question, "Did any of these men here tell you
they wanted to go back to work and would go back to work,"
Reeder answered "Yes." In response to the question "Who,"
he answered "Virgil Kaufman." Then in answer to the question
"Who else," he answered, "I can't say now that Henry Hurst
said definitely that he would, but he implied very strongly that
he would. He thought he would go back. He didn't say
definitely." It is undisputed that Kaufman and Hurst returned
to work on February 27, 1967, and at the time of the hearing
had been working continuously since February 27.
4. Respondent's letters to employees of March 1, 2, and 4
and April 28, 1967
On Wednesday, March 1, 1967, Respondent, over the
signature of Vice President Smith, sent to striking employees
Clarence William Butts, Robert L. Kircher and Amos Mumaw,
probationary employees with less than 30 days employment,
the following letter.
We are in receipt of a registered letter dated February
24, 1967, from Mr. John S. Johns, Director, United
Steelworkers, of America District #27, which reads:
"On behalf of all of your striking employees, I am
hereby offering them and each of them for employment
unconditionally, and also are advising that this Union is
hereby terminating the current strike."
Since your 30 day probationary period was not
completed and you have not worked, it does not appear
that there would be opportunity for your re-employment at
this time.
Furthermore, if you have not made application for work
by Monday, March 6, 1967, we will assume that you are no
longer interested in employment by the Rybolt Heater
Company.
Smith was advised by his attorney that his statement in the
above letter that since the addressees had not completed the
30-day probationary period and had not worked it did not
appear there would be opportunity for reemployment, the
letter could be construed as not constituting an unconditional
offer of reinstatement. On Saturday, March 4, 1967, he sent a
letter to Butts, Kircher, and Mumaw as follows.
In order to clear up any misunderstanding which
could exist as a result of our letter to you dated March
1st, 1967, please note carefully the following:
If you wish to be re-employed by the Rybolt Heater
Company you should make application for re-employ-
ment no later than Thursday, March 9, 1967, otherwise
you have voluntarily quit your job here.
Smith testified that he was of the opinion when he sent the
first letter that Butts, Kircher, and Mumaw would not have
been kept on as permanent employees after the 30-day period
on the basis of their performance during the time they worked,
8Since the strike ended on February 24, 1967 , nothing that
happened after that date could change it from an economic strike into
an unfair labor practice strike.
9Beasley testified that Reeder instructed him to go to Respondent
and discuss reinstatement. As found infra, Beasley did so on February
27, or March 1, 1967.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and he felt he should so advise them to enable them to
continue working where they were employed on receipt of the
letter.' o
On March 1 or 2, 1967, Respondent sent to 15 of the
remaining 17 striking employees listed in the complaint,'' a
letter containing the following:
We are in receipt of a registered letter from Mr. John S.
Johns, Director, District #27, United Steelworkers of
America, dated February 24, 1967, which reads:
"On behalf of all your striking employees, I am
hereby offering them and each of them for employment
unconditionally, and also are advising that this Union is
hereby terminating the current strike."
This is to advise you that if you have not made
application for reemployment by Monday, March 6, 1967,
we shall assume that you have quit your job, and are no
longer interested in employment by the Rybolt Heater
Company.' 2
Between March 1 and April 28, 1967, striking employees
Hockenberry, Hoppenberg, Beasley, Gregory, Butts, and
VanBremen visited Respondent' s plant and had conversations
with Smith and Buzzard regarding reinstatement Striking
employees Hines, Pryor, and Spencer telephoned Smith and
discussed reinstatement. On April 20, 1967, the Union filed
the charge on which the complaint, issued on May 31, 1967, in
this proceeding is premised. Oral testimony regarding the visits
of employees to Respondent's plant to discuss reinstatement
will be discussed.
On April 28, 1967, Respondent sent to all the 20
employees allegedly denied reinstatement for discriminatory
reasons the following letter
On or about the 24th day of February 1967, we received
a registered letter from Mr. John S. Johns, Director, District
No. 27, United Steelworkers of America, which reads:
On behalf of all your striking employees, I am hereby
offering them and each of them for employment
unconditionally and also am advising that this Union is
hereby terminating the current strike.
Since receiving this letter dated February 24, 1967, from
Mr. Johns, a number of letters were sent out by this
company to our employees including you, offering to take
you back to work and re-instate you.
Some of the employees came to the office to discuss the
matter.
Also new charges have been filed with the National
Labor Relation Board by the Union claiming that illegal and
unfair conditions were attached by this company to you
being re-instated.
It is our position that no illegal or unfair conditions were
attached to our offer to you of re-instatement.
In any event, we are now unequivocally offering you
re-instatement with no conditions attached, to your former
job or position or substantially the same job if the job has
been abolished.
If we do not hear from you on or before the 8th day of
May 1967 we will assume that you have refused our offer to
reinstate you with the Rybolt Heater Company and that
you do not wish to come back to work.
Striking employees Lamb and Kircher visited Respondent's
plant after receipt of this April 28 letter.
5 The testimony of the personal and telephone conversations
between strikers and Respondent's officials regarding
reinstatement.' 3
On instructions received on February 24, 1967, from
Reeder, the Union's staff representative and chief negotiator,
striking employee Carroll Beasley went to Respondent's plant
on March 1, 1967, and talked first to Plant Superintendent
Buzzard and then to Vice President Smith. He asked Buzzard if
he could return to the same job. He had been a spot welder.
Beasley testified Buzzard said "possibly," while Buzzard
testified that he said he was glad to have him, and asked him
"when can you start?" He told Buzzard about an operation he
had arranged to have on his nose the following week. Buzzard
testified that he gave him the impression he would be in after
the operation. Smith came along as they were talking, and
Beasley asked him if the insurance Respondent had would
cover it. Smith said he did not think so, that he had been away
from employment by Respondent for 7 months, and would
have had to have been working for 3 months to have coverage.
Smith also told him that the insurance was canceled 30 days
after the strike began, as Respondent did not pay the
premiums. Beasley said he had insurance at Perfection
Manufacturing Company in Mansfield, Ohio, where he was
employed and wondered if he should not stay at Perfection
and have that insurance take care of the operation on his nose.
Smith asked him how his job was, and he said he had a good
job, that it was paying about the same he made when working
for Respondent, but that he was working on a different shift.
Respondent had only a day shift. Beasley asked Smith for
permission to go through the plant, and Smith gave it him.
Both Smith and Buzzard testified that they received the
impression that he would return to his former employment
10 Butts, Kircher , and Mumaw began employment on July 19, 12,
and 12, 1966 , respectively . Additional probationary employees at the
time the strike started were Gary Stutz , Billy Barker , Paul Gulley, Virgil
Strines, Raymond Charles Myers, Thomas E. Caldwell, and William
Weber, Jr. The names of these latter employees are not included in the
list of 20 allegedly denied unconditional reinstatement. Stutz returned
to work on March 27 and left on May 5 for other employment. Weber
said he would return on May 1 but did not appear.
IIThey were Buchanan , Dahere, Gregory, Hines, Hockenberry,
Hoppenberg , Lamb , Markel , Myers, Parker , Pryor , Robinson , Spencer,
and VanBremen. Letters were not sent to Kaufman and Hurst as they
had been reinstated on February 27, 1967.
12As stated supra, Respondent also made reference in this letter to
the request in Johns' February 24 letter that Respondent meet and
bargain , and stated regarding it that it seemed only fair that the Board
should decide if further negotiations should be held since this question
had 1 een placed in the hands of the Board by the union leadership.
'
Beasley, Hockenberry, and Hines testified for the General
Counsel . Smith and Buzzard testified for Respondent.
RYBOLT HEATER COMPANY 561
with Respondent.14 A short time later, Buzzard telephoned
Beasley's home. He talked to his wife when he was told
Beasley was not there. He asked her if Beasley intended to
return to Respondent. She said no, that he intended to remain
with Perfection Heating Company.) s
On March 3, 1967, striking employee Don Alan
Hockenberry went to Respondent's plant around noon and
talked to Vice President Smith in his office about returning to
work. He had been a press operator. Smith said he could have
his old job back. Smith handed him District Director Johns'
letter of February 24, 1967, in which Johns had offered the
return of the striking employees to their former jobs, and in
which he stated that the strike was over. Smith said to
Hockenberry that the strike was over. He asked him to fill in
his name, address and telephone number on a standard form
used by Respondent entitled "Application For Employment."
Smith said to Hockenberry that Bill Buzzard made the work
assignments , and was in Virginia to watch his son receive a
commission in the Army, but would be back Monday, and
would give him his work assignment at that time. He told him
he could begin work on Monday.16 I credit Hockenberry's
testimony that after he filled in his name, address and
telephone number, he glanced down at the place on the form
for names and address of former employers, and asked Smith if
he had given him any bad references, that Smith denied he
had, and he replied that he had, and did not think that
Buzzard would like him to come back to work, and rose from
the chair he was sitting in, and walked out of the plant. He did
not return. Neither Smith nor Buzzard saw him after this
conversation.) 7
On March 6, 1967, about noon, striking employee Hines
went to Respondent's plant to talk about reinstatement. He
was working elsewhere at the time. Smith and Buzzard were at
lunch. Hines telephoned Smith between 8 and 9 o'clock that
evening. Hines testified that he said to Smith he received a
letter, and March 6 was the deadline to go back, and that
Smith replied that Respondent had a full complement of
employees and they were not going to lay off anybody to
make room for him. Hines also testified that he said to Smith
that he had 9 years' seniority, and asked him if that made any
difference and he said no.
Smith testified that Hines asked him what the situation was
at the plant, and he asked Hines if he had received a letter, and
Hines answered no. Smith than said that the letter explained
what they were doing at the plant; and Hines said he guessed
he had better pick up the letter. Smith replied that he thought
he should. Hines asked if he could come to the plant and talk
to him, and Smith said he would be in the next day, and he
could talk to him at any time during the day. Smith was in the
office from 7 a.m. until 5 p.m., but Hines did not appear at the
plant, and had not done so at the time of the hearing. Smith
denied that he said anything about seniority or refusing to
replace the replacements with strikers.18 I credit Smith's
testimony.
Smith and Buzzard testified that when the letters were sent
out in March and April, Respondent had jobs available for all
14 Beasley testified that Smith had a list of employees and referred
to the names of Buchanan and Hoppenberg and said he would not take
them back as employees . Beasley also testified that he had a
conversation with Virgil Kaufman who had returned to work on
February 27. He testified that Kaufman asked him if he was coming
back, and that he said he was thinking about it, and that Kaufman then
said that he would have no seniority or vacation , and had a good job
and should not leave it . Smith denied he made any reference to or
discussed other employees with Beasley. He also denied that he said he
would not take Buchanan or Hoppenberg back as employees . Buchanan
never talked to Reeder , Smith or Buzzard about reinstatement . As will
be found infra, Hoppenberg discussed reinstatement with Buzzard on
Friday, March 3, 1967. He told Buzzard he was ready to return to work,
and Buzzard replied that was fine. He said he would report for work on
Monday, March 6. On Monday, Tuesday and a few days later he called
in to say he was in . He never returned . Contrary to Beasley 's purported
hearsay from Kaufman, Smith testified that the employees who
returned to work had all the rights they had under the old contract
General Counsel did not call either Kaufman or Hurst to give testimony
regarding any changes , if there were any, in the wages , hours and
working conditions , after February 27, 1967, when they returned to
work, over what they were before the strike began on August 8 , 1966. I
can only conclude that if General Counsel had called them they would
have testified adversely to him and have testified there were no changes.
A P Products Company v. N.L.R.B, 316 F.2d 899 (C.A. 2), enfg. 137
NLRB 25. I do not credit the testimony of Beasley set out in this
footnote.
15 Respondent has an industrial insurance contract with Aetna Life
Insurance Company. It pays part of the premiums and the employees
pay the other part. Respondent collects the part the employees pay by
deductions from their pay. The striking employees made no payments
during the strike and Respondent made no payments to Aetna. The
insurance coverage like wages is part of employees ' earnings. The
obligation to continue the converage , like the obligation to pay wages,
ceased when the employees became strikers . Respondent 's obligation to
renew the coverage and resume payment of the premiums began at the
same time its obligation to resume paying wages began.
16 The "Application for Employment " form has spaces for the
insertion of name in full , address, age, birthday , sex, citizenship,
position sought, names and addresses of former employers, number of
persons supported , education , physical defects , weight, height, wages
desired , and signature I credit Smith 's and Buzzard 's testimony that the
striking employees were asked to fill in only the spaces for name,
address and telephone number, and the signature. I also credit Smith's
testimony that the information was necessary to provide a current
record of name, address and telephone number for Respondent's
records. I credit Smith's testimony that new employees are required to
fill out completely the Application For Employment form.
17Hockenberry testified that he asked Smith if he was going to let
the scabs go who were working in the plant and place the strikers in
their jobs, and Smith answered that he would keep the scabs as they had
pulled them through. Hockenberry then testified that Smith said he
would keep- both the replacements and the strikers . When asked if he
and Smith used the term scab in their conversation , he said no that they
referred to the replacements as the workers in the plant. Hockenberry
testified that while he was talking to Smith he decided he did not care
to resume employment at Respondent's plant, and would not go back.
He also testified that he obtained employment at Reiter and Harter All
Star Dairy . He did not disclose whether he had this employment when
he talked to Smith, or obtained it thereafter. Smith denied he talked to
Hockenberry about replacing anybody or about seniority . He testified
that Plant Superintendent Buzzard made the work assignments. Smith
also testified that when written requests for references came into the
plant for the striking employees the replies made were , "They are on
strike" or "presently on strike." Smith and Buzzard testified that the
latter was in Virginia that weekend to attend a ceremony in which
Buzzard 's son was to receive a commission in the Army. Hockenberry
was the striker who on September 1,, 1966, at the end of the workday,
lay down in front of the van containing the employees who had
returned to work that day for the first time since the strike bagan, and
was the employee who appeared to be about to ignite some paper, in
the vicinity of the van , about the same time as the lying down incident.
Hockenberry could well have decided that Buzzard would not have been
pleased at his returning in view of his conduct on September 1.
18 The evidence shows that contrary to Hines' testimony, he did not
obtain the letter sent to him on March 1 or 2 until March 7. However,
he could have learned from the other letters sent on March 2 that the
strikers were to contact Respondent not later than March 6. His
testimony about the letter, however , does have a bearing on his
credibility.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the 20 striking employees, that they could have been
employed in addition to those then working in the plant due
to an increase in the volume of orders. They testified that
Respondent would have taken all the strikers back with all the
rights and benefits they had before the strike. Smith testified
that Respondent reinstated all those who came to the plant to
return to work, with prior rights and privileges. Kaufman and
Hurst were reinstated on February 27, Butts on March 7, and
Kircher on May 8. Kircher left without explanation on June 2,
1967. Butts quit on March 17, 1967, upon being asked by
Buzzard if he did not think he ought to work as he was leaning
against a post smoking a cigarette after being 22 minutes late.
Smith testified that striker Kelly came back about September
1, 1966, and striker Austin about October 1, 1966, and that
others no longer working for Respondent also came back
during the strike.
Smith also testified Gregory saw him on March 2, 1967, and
asked him if he had overtime work, and he said no, and that
Gregory never came back to the plant, that Spencer called on
March 4 and said he was working and would like to give his
employer 2 weeks' notice, and he gave him permission to do
so, but he never came back to work; that he talked to Lamb 2
weeks before the hearing, and he said he would have to have at
least $2.45 per hour, but Smith said Respondent could not pay
more than the $2.31 it was paying; and that Pryor telephoned
him on March 2, and asked him about seniority, and he replied
that he did not know as the contract had expired, and Pryor
said he would not be back.
Buzzard testified that he talked to Hoppenberg on Friday,
March 3, 1967, and gave him the form on which to insert his
name, address and telephone number, and that after
Hoppenberg inserted this information on the form he said he
would be in Monday, but telephoned, Monday, Tuesday and a
few days following Tuesday to say he was ill. He said he did
not have a doctor, but was doctoring from the drugstore. He
never did report for work. Buzzard testified that VanBremen
came to the plant on March 8, and inserted his name, address
and telephone number on the form given him, and said he
would be back in a few days but never returned. He testified
that on June 23, 1967, Myers asked for part time employment,
but he told him Respondent did not have part time
employment. He also testified that he saw Lamb on June 23
when Smith saw him, and that he said he had to have $2.45
per hour before he could return to work there.
Smith and Buzzard testified that Buchanan, Daliere, Markel,
Mumaw, Parker and Robinson never came to the plant looking
for reinstatement. Smith testified that he saw Mumaw at the
plant on May 29 talking to Kaufman, but that Mumaw merely
greeted him and did not seek to talk to him. On cross-
examination, Buzzard testified that Kelly was reclassified from
,Class B painter to Class A painter when he returned to work,
and that Walter Austin was reclassified when he returned to
work. He also testified that Hursh had been made a leadman
before the strike. Smith testified that Respondent had always
made reclassifications without consulting the Union.
After Butts visited the plant on March 3, and stated he was
ready to go to work, Smith, on March 7, sent him a letter in
which he extended the last day he had to report for work from
March 9 to 13. Butts, in Smith's letter of March 1, was given
until March 6 to return to work, but when the letter was
corrected in a letter of March 4, he was given until March 9 to
report Butts reported for work on March 7, the day Smith
sent the letter . After Spencer telephoned Smith on March 4,
and stated he was ready to go to work, but would like to give
the employer then employing him 2 weeks' notice , and Smith
gave him permission to do so, Smith sent Spencer a letter
extending his last day for reporting for work from March 6 to
20.
Analysis, Credibility Resolutions , Findings, and Conclusions
of Fact and Law
I conclude and find that Respondent continued to refuse to
furnish financial books and records and to meet and bargain on
February 9 and thereafter notwithstanding Trial Examiner
Donovan's order of April 12, 1967, adopted by the Board on
June 13, 1967, requiring it to furnish the financial data and to
meet and bargain with Respondent. Donovan decided, and the
Board affirmed, that Respondent technically violated Section
8(a)(5) by the refusal to furnish the data and to meet and
negotiate. Respondent continues to stand on the defense it
made in that proceeding that it would be an exercise in futility
to furnish the data and meet and bargain in view of the
Union's conduct during the bargaining. The Union, according
to Respondent, refused to negotiate except upon its own terms
and by exercising constant pressure. Respondent further
contends that this refusal to furnish data and meet and bargain
are not properly before me as alleged unfair labor practices,
but are confined to the proceeding which is Case 8-CA-4401,
decided by the Board on June 13, 1967, and in which it seeks
a review of the Board's order by a court of appeals.
I find that Respondent's position has merit. The Respon-
dent's refusal goes to the question of compliance with the
Board's order of June 13, 1967. Any order which I would
recommend and which the Board would adopt would be in the
identical language of Trial Examiner Donovan's recommended
order of April 12, 1967, which the Board adopted as its order
on June 13, 1967. The administrative process should not be
burdened by duplicates of the same thing. It is already
overburdened by legitimate proceedings. I shall, therefore,
recommend dismissal of the complaint insofar as it alleges a
violation of Section 8(a)(5) of the Act because of these
refusals."
To have violated Section 8(a)(3) and (1) of the Act by
refusing to reinstate unconditionally the Respondent would
have to have the obligation under the Act to reinstate
unconditionally. Respondent has this obligation if the strike
was converted into an unfair labor practice strike, or
Respondent did not permanently replace the strikers where the
strike remained an economic strike. But whether an unfair
labor practice strike or an economic strike without the
permanent replacement of strikers, Respondent is not obli-
gated to reinstate unless the strikers make unconditional offers
to return to work. The Union as the agent of the employees
may make the unconditional offer on their behalf. There is a
presumption that the bargaining agent 's offer is a bona fide
one, and the offer stands as the offer of the employees unless
the presumption is rebutted. It would be, for example, if
evidence showed that the employees withheld from the
19See TXD in Quaker Tool & Die, Inc, 169 NLRB No 166.
RYBOLT HEATER COMPANY 563
bargaining agent the authority to make the unconditional
offer.
Good-faith bargaining is the sincere cooperative effort of
the bargaining parties to reach a mutually acceptable agree-
ment. This concept does not allow for an attempt by the
employees' bargaining agent to control the progress of the
bargaining to prevent the employer from presenting effectively
its bargaining position until the agent has failed to coerce the
employer by picketing and other pressure to capitulate to its
fixed and unchanging demands. In determining whether an
employer has violated the Act by conduct related to conduct
by a contesting union the Board and the courts have always
looked at the union's conduct. A violation is not found where
the employer's conduct under scrutiny has been caused by the
Union's harassment or provocation.20
I find that the Union's Reeder was aware of the
Respondent's financial condition before the bargaining began.
Here was a small plant in a small locality with a small number
of employees in the bargaining unit. These employees were
known personally by Vice President Smith and Plant Superin-
tendent Buzzard. From in-plant discussions and general
awareness the employees, including those on the Union's
negotiating committee, must have known that the Respondent
return on net sales was approximately $288,980 less in 1965
than in 1964, that Respondent operated at a loss of $104,328
in 1965, and that it made up this deficit out of its capital
assets. They certainly passed this information on to Reeder,
the Union's chief negotiator. Reeder is an experienced
negotiator who has bargained for many contracts with many
companies. He would see that he had this information before
the commencement of the bargaining.
The issue of a wage increase was joined at the outset of the
negotiations in June 1966. Respondent pleaded inability to
pay any increase . The Union, however, did not request
Respondent to furnish financial data to support its position of
inability to pay. It was aware of Respondent's bad financial
condition, but had decided to demand the wage increase
anyway, and to engage in a strike and picket line activity in
support of the demand. The employees voted to strike on July
28 and the vote was accepted as a recommendation by Reeder
and Johns, the Union's district director. Respondent offered
the revealing financial report on July 30 when it was informed
of the strike action. Reeder arbitrarily refused to look at it.2 i
He knew he would find it very difficult to call a strike after
openly looking at the report and discussing it with Respon-
dent, with the consequence of being on notice publicly of
Respondent's inability to pay the increase , and the hardship it
would suffer by a shutdown caused by the strike. Reeder
surmised, however, what was in it, in view of the background
he had of Respondent's financial condition and the latter's
continuing position it could not afford an increase. So
protected by his veil of innocence or lack of knowledge, and
tactically expressing skepticism of Respondent's plea of
inability to pay, he planned to go on with the strike.
Respondent, as an inducement not to strike offered an increase
20 Republic Steel Corp., 9 NLRB 219, N.L.R.B. v. Indiana Desk
Co, 149 F 2d 987, 995 (C.A. 7) enfg. and modifying 56 NLRB 76 and
58 NLRB 48, and NL.R.B. v Dadounan Export Co, 138 F.2d 891
(C.A. 2), denying enforcement of 46 NLRB 498.
21 While it is established that the employees' bargaining agent has a
right to financial data to support the employer 's position of inability to
pay a wage increase as soon as he requests it, there is no coronary to this
it could not afford, as the report disclosed, but the Union was
not satisfied with it and struck on August 8. The Union's
picket line activity was intended to hamper production and
prevent deliveries to customers. It closed the plant down until
September 1, and hampered production and deliveries after
that date. On August 22, at a meeting at which a Federal
mediator was present, Respondent withdrew the increase. It
stated that its financial condition aggravated by the strike and
its consequences had made the offer impossible.
Then on September 20, when the strike had failed to keep
Respondent closed, Reeder sent a letter to Respondent in
which he requested that it make available to the Union "for
examination and study your books and records so that we
might bargain intelligently on economic matters." He also
stated that he was making the request because of Respondent's
withdrawal of the offer of a 5-cent-an-hour increase on the
ground of inability to pay, but did not concede the 5 cents
offer was adequate.
Now it can be argued that here was disclosure of a
willingness by the Union to break the bargaining impasse that
clearly existed between it and Respondent by reason of its
fixed and unchanging demand for a wage increase, that the
Union was revising its prior position and was ready to talk
about wage increases in line with Respondent's ability to pay,
and that it now wished to test the Respondent's position it
could not pay, and to evaluate its financial condition with the
view of making suggestions that would improve it. These are
the objectives of the furnishing of financial information.22 On
the other hand, Respondent's representatives could, in
sincerity and truthfulness, have suspected that this request was
just another device to place pressure on Respondent, and that
it would be an exercise in futility to honor it. Respondent had
been trying to discuss with Reeder its financial condition since
the beginning of negotiations on June 24, and at the meetings
of July 14, 28 and 30, and August 6, 13 or 14, and 22. On
July 30, it offered an evaluation in depth of its financial
condition which took considerable time, effort and expertise
to prepare, and Reeder had summarily rejected it. Reeder just
refused to look at it, and as he testified at the January 31,
1967, hearing, was not concerned with what was in it. On
September 20, he was asking for the books and records which
comprised Respondent's accounting and bookkeeping system
"for examination and study," presumably to make an
evaluation and study of them, and to prepare a financial report
like the one Respondent was offering him.23 Was he
personally to examine the books and records or was a financial
consultant to handle this task? When was it to be done? How
long was it to take? At the hearing on January 31, 1967,
Reeder testified that in response to his September 20 request
he expected an up-to-date financial report prepared by outside
certified public accountants. He did not want Respondent's
books and records. Moreover, at the January 31 hearing, he
testified that he did not know whether the report submitted
by Respondent on July 30 disclosed the information he
testified on January 31 that he wanted. His only reply was that
he wanted an answer to his September 20 request. Respondent
could well have believed, in good faith, that Reeder did not
right that the employer is estopped from offering the financial data in
support of its position against the increase until it is requested by the
emp2l2 yees' agent.
Metlox Manufacturing Company, 153 NLRB 1388 , enfd. 378
F 2d 728 (C.A. 9).
23 Words are to be given their common and ordinary meaning absent
evidence to the contrary
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want anything, but was merely applying another form of
pressure, and was not making a move to break the impasse
which the Union had caused.
For the reasons stated, I find that Respondent, refused in
good faith to honor the September 20 request. I also find for
the same reasons that Respondent in good faith decided that
the request of the Union on November 10, 1966, to bargain,
and the requests to bargain and furnish financial data on
February 7 and 13, 1967, were merely pressure moves to
continue the Union's fixed position to obtain a wage increase
without regard for Respondent's ability to pay it, and that to
I honor the requests would not break the impasse and lead to
fruitful bargaining. I conclude and find that Respondent
refused to bargain in good faith and not in bad faith. The
Union, therefore, could not have passed on to employees any
truthful information about bad faith bargaining by respondent
that could have caused them to strike in protest against bad
faith bargaining.
I am of the opinion and so find that Respondent's technical
refusal to meet or furnish data did not cause the employees to
prolong the strike or strike in protest of this refusal. They and
the Union knew Respondent's financial condition from the
beginning. The employees were aware of the Union's adroit-
ness in refusing to look into it by its arbitrary refusal of the
financial report, and knew the Union's plan to seek a wage
increase in spite of Respondent's financial condition. The
employees, therefore, concluded that Reedler's request for
financial books and records was just another pressure move,
and could not have felt any resentment against Respondent for
not responding to it. There is no evidence that the Union and
the employees had decided on changing their position to seek a
wage increase regardless of Respondent's financial condition,
and, therefore, that the Union had a different basis for
bargaining. They continued to believe that their success
depended on their strike efforts to hamper Respondent's
production and deliveries effectively enough to force Respon-
dent to give the increase in spite of its financial condition.
They continued to strike for this purpose. They recognized the
futility of bargaining unless the Respondent had to capitulate
to their demands. This point had not been reached. They,
therefore, were not striking in protest because of the refusal to
meet and bargain.
I conclude and find that Respondent did not replace the
strikers, and, therefore, had an obligation to reinstate them on
their unconditional offers to return to work. The evidence
undisputedly supports this finding, and needs no analysis.
The Union's offer of February 24, 1967, to return the
striking employees to work was a bona fide offer only for
striking employees Kaufman and Hurst. They only told the
Union's Staff Representative that they wished to return to
work. They were reinstated on February 27, 1967, and were
working at the time of the hearing on June 28 to 30, 1967.
The others to whom Reeder talked stated to him they would
make up their own minds. He had no communication with the
remainder of the 20 strikers. The employees who returned to
Respondent's plant to discuss reinstatement clearly disclosed
they had not given the Union authority to make the
unconditional offer. The presumption that the Union's
unconditional offer to return to work on behalf of employees
was made bona fide on behalf of the employees is rebutted,by
the evidence. The one exception is the offer on behalf of
Kaufman and Hurst. The offer was received by Respondent on
February 25 and they were reinstated on February 27.
I conclude and find that Respondent offered uncondition-
ally to reinstate all employees who unconditionally applied for
reinstatement. The deadlines for applying for reinstatement
contained in Respondent's letters were not unreasonable.
Respondent, in order to produce to meet a backlog of orders,
.had to hire new employees in place of the strikers who did not
wish reinstatement. Any employee who indicated he wished
reinstatement, but could not report before or by the deadline
date, was readily given an extension of time within which to
return to work.
There is no evidence that Respondent refused the em-
ployees applying for reinstatement or who were reinstated any
of the benefits under the prior contract. As stated supra I
could not, and do not,_ credit the hearsay testimony to the
contrary, when the employees (Kaufman and Hurst) were
available to give direct testimony if it existed. Smith's
testimony of what he said to Spencer raises some question
about Respondent's retention of the seniority of the striking
employees. However, Smith's categorical testimony that
returning employees received the benefits they had under the
old contract and the absence of any testimony to the contrary
from General Counsel require me to reject the General
Counsel's position that conditions were attached to reinstate-
ment. I also find that the reclassification of Kelly and Austin
without communication with the Union after they returned to
work is not evidence of any misconduct by Respondent, in
view of Smith's testimony that he never communicated with
the Union in regard to reclassifications.
I also find and conclude that the placing in effect of the
no-solicitation rule on March 1, 1967, was not violative of
Section 8(a)(1) and (5) of the Act. Respondent has a
management prerogative to place a no-solicitation rule in effect
if it is necessary for purposes of production or discipline and is
nondiscriminatory. Respondent's rule applies to all solicita-
tion, and it applies only during working hours. There had been
a bitter strike lasting from August 8, 1966, to February 24,
1967. Beasley's testimony discloses that the strikers resented
the retention of workers who were employed by Respondent
during the strike. He referred to them as scabs. Respondent
planned to keep the replacements and at the same time to
reinstate the strikers. It was sound and necessary business for
Respondent on March 1, 1967, to provide against disputes,
disruptive of production and discipline, that might well have
risen between the strikers and the replacements during working
hours, on the return of the strikers, if the no-solicitation rule
was not placed in effect.
CONCLUSIONS OF LAW
1. Respondent Rybolt Heater Company is engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act, and United Steelworkers of America, AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act.
2. Respondent's technical refusals on February 9 and 17,
March 1 or 2, April 20, and June 15, 1967, to furnish financial
data, and to meet and bargain , are matters not properly before
me as unfair labor practices and are properly matters confined
to Case 8-CA-4574 now awaiting disposition by a court of
appeals.
3. Respondent has not violated Section 8(a)(3) and (1) of
the Act by refusing to reinstate unconditionally the 20 striking
employees named in the complaint, or by offering them
reinstatement with conditions attached to its offer.
RYBOLT HEATER COMPANY 565
4. Respondent did not violate Sections 8(a)(1) and (5) of
the Act by placing a no-solicitation rule in effect on March 1,
1967, and maintaining it in effect thereafter.
RECOMMENDED ORDER
It is recommended that the Board issue an order dismissing
the complaint in its entirety against Respondent Rybolt Heater
Company.