Stark Ceramics, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1965

155 N.L.R.B. 1258 (N.L.R.B. 1965)

1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered , defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 25 , in writing, within 20 days from
the receipt of this Decision , what steps Respondent has taken to comply herewith.C
It is recommended that the complaint in Case No . 25-CA-2175 be dismissed.
U If this Recommended Order is adopted by the Board, this provision shall be modified
to read: "Notify the Regional Director for Region 25, in writing, within 10 (lays from the
date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT discourage membership in International Chemical Workers
Union, AFL-CIO, or in any other labor organization, by discharging or failing
to reinstate employees or in any other manner discriminating in regard to hire
or tenure of employment or any term or condition of employment.
WE WILL NOT inform employees that we have kept under surveillance the
meeting places, meetings, and activities of the Union.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their right to self-organization, to form, join, or assist said
International Chemical Workers Union, AFL-CIO, or any other labor organiza-
tion, to bargain collectively through representatives of their own choosing, or to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all such activities.
WE WILL offer to Revel Allen Kingsbury, Jr., immediate and full reinstatement
to his former or substantially equivalent position, without prejudice to his
seniority or other rights and privileges, and make him whole for any loss of pay
he may have suffered as a result of our discrimination against him in the manner
provided in the Trial Examiner's Decision.
All our employees are free to become or remain, or to refrain from becoming or
remaining, members of the above-named or any other labor oganization.
RED SPOT PAINT & VARNISH CO., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and Universal Military Training and Serv-
ice 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.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 614 ISTA
Center, 150 West Market Street, Indianapolis, Indiana, Telephone No. Melrose
3-8921.
Stark Ceramics , Inc. and United Brick and Clay Workers of
America, AFL-CIO. Cases Nos. 8-CA-3547, 8-CA-3716, and 8-
CA-3891. November 30,1965
DECISION AND ORDER
On September 17, 1965, Trial Examiner Federick U. Reel issued
his Decision in the above-entitled proceeding, finding that Respond-
155 NLRB No. 120.
STARK CERAMICS. INC. 1259
ent 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 Trial Examiner's Deci-
sion. The Trial Examiner also found that Respondent had not engaged
in certain other unfair labor practices as alle-ged in the complaint and
recommended dismissal of those allegations. Thereafter, Respondent
filed exceptions to the Trial Examiner 's Decision and a supporting
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 these cases to a three -member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner- made
at the hearing and finds that no prej udicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions, the brief , and the entire record in
the proceeding , and hereby adopts the findings,' conclusions, and
recommendations of the Trial Examiner.
ORDER -
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board -hereby adopts as its
Order the. Recommended Order of the Trial Examiner, as modified
herein, and orders that the. Respondent, Stark Ceramics, Inc., Canton,
Ohio, its officers, agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's Recommended Order, as so modified :
1. Add the following as paragraph 2(d) of the Trial Examiner's
Recommended Order, the present paragraph 2 (d) and those- subsequent
thereto being consecutively relettered :
"(d) Notify any of the above-described individuals presently serv-
ing in the Armed Forces of the United States of their right to full
reinstatement upon application in accordance, with the Selective Act
and the Universal Military Training and Service Act of 1948, as
amended, after discharge from the Armed Forces."
2. Add the following immediately below the signature line at the
bottom of the Appendix attached to the Trial Examiner's Decision:
No'E-We will notify any of the above-described individuals
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 Train-
I In the absence of specific exceptions , we adopt pro forma the finding that Respondent
violated Section 8 (a)(5) of the Act during collective-bargaining negotiations by propos-
ing that the Union accept a settlement of the 1964 bonus at 25 percent , thereby in effect
requiring the Union to withdraw its pending unfair labor practice charge as part of the
price of reaching an agreement.
1260 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing and Service Act of 1948 , as amended , after discharge from
the Armed Forces.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, heard before Trial Examiner Frederick U. Reel at Canton, Ohio,
on June 28 through 30, 1965, pursuant to charges filed June 24 and December la,
1964. and May 10, 1965, and a consolidated complaint issued June 16, 1965, presents
questions as to whether Stark Ceramics, Inc., herein called the Respondent or Com-
pany, committed various acts of interference, restraint, and coercion violative of
Section 8(a)(1) of the Act, failed to bargain in good faith with United Brick and
Clay Workers of America, AFL-CIO, herein called the Union, in violation of Section
8(a) (5) of the Act, and withheld payment of regular bonuses without bargaining with
the Union and for anti-anion reasons, thereby violating Section 8(a)(5) and (3) of
true Act. Upon the entire record, including-my observation of the witnesses, and after
due consideration of the briefs filed by General Counsel and the Union (the Company
.filed no brief), I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED
The Company, an Ohio corporation engaged at East Canton in the manufacture of
ceramic tile products, annually ships products valued in excess of S50,000 from its
plant directly to points outside Ohio, and is therefore engaged in commerce within
the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization
within the meaning of Section 2(5) of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Background and general. chronology
For some years prior to 1964 the Union had made unsuccessful efforts to become
the bargaining representative of the Company's employees. The last election prior
to that of February 27, 1964, was held in March 1961. In the 1961 election campaign
and again in the 1964 campaign the Company, in opposing the Union, called the
employees' attention to certain benefits they already enjoyed, including a Christmas
bonus paid annually since 1944_ and a length-of-service bonus paid annually since
1950. In February 1964, following a campaign in the course of which the Company
allegedly committed certain unfair labor practices, the Union won the election by a
narrow margin; and after a hearing on challenged ballots it was duly certified on
September 29, 1964, as the bargaining representative of the Company's production
and maintenance employees. Some 5 weeks later, and before bargaining with the
Union, the Company decided not to pay the Christmas and service bonuses for 1964.
The parties met in several fruitless bargaining sessions during the early months of
1965, failing to reach accord on several critical matters, including the payment of the
1964 bonuses. Finally, on April 7 the Union called a strike, which was still in progress
at the time of the hearing. At issue in this case, in addition to the alleged preelection
unfair labor practices, are other allegedly unlawful statements of company super-
visors and alleged supervisors -during the prebargaining period, an allegedly illegal
"no-distribution" rule, the nonpayment of the bonuses (alleged to be a unilateral
change of working conditions, violative of Section 8(a)(5), and to have been dis-
ucriminatorily motivated in violation of Section 8(a)(3), of the Act), an alleged
failure to bargain in good faith, and allegedly unlawful conduct during the strike,
including various forms of harassment of strikers, threats of discharge, and attempts
to deal individually with I employees rather than with their bargaining representative.
To facilitate discussion of this welter of contentions, they are organized into the fol-
lowing topics: alleged 8(a)(1) violations preceding the bargaining sessions: the
bonuses; the bargaining sessions; and alleged violations during the strike.
B. Interference, restraint, and coercion preceding the bargaining sessions
1. The evidence retied on by General Counsel
The following statements stand undenied in the record:
(a) In February 1964, ,prior to the election, Carl Snively, a plant superintendent
and concededly a supervisor within the meaning of the Act, stated to employee Steffy:
STARK CERAMICS, INC. 1261
"'It would be the worst thing the men could ever do is to vote a union in over at
:Stark .... If we voted the union in, the men would lose everything that Stark had
given them .... Anytime the men wanted a raise or anything, no matter how much
or how little it was, they would have to go out on strike to get it." Steffy understood
the reference to what "Stark had given them" to embrace "the bonus and the profit-
sharing," benefits which the Company had emphasized in its antiunion campaign.
(b) About the same date, Frank Gonzales, like Snively a plant superintendent i
and concededly a supervisor, said to employee Salapack: "If we have got a union in
the place, that the Company would probably shin the plant down and wouldn't pay
the Christmas bonus."
(c) Likewise shortly before the election Vernon Reiter, whose supervisory status
.is established by the record in Case No. 8-RC-5644,2 asked employee Doss if the
latter intended to vote in the election, and continued: "I guess you know if t he union
comes in here, you'll be looking for a job within 30 days." Reiter also stated at that
time, according to Doss' uncontradicted testimony: "If we vote a union in, we would
lose our profit sharing and bonus."
(d) On the day of the election, Company Vice President Blosser,_ who, was also
production manager of the plant, told employees Scott and Clayton that-the Com-
pany would not sign a contract with the Union.
(e) In April 1964, while the election result was being contested, James- Schrock,
-whose supervisory status was conceded in the representation case,s told employee
Drewry that in the event of a union victory, "the Company would lay off from 100 to
140 men, that we would lose our Christmas bonus, and we wouldn't make as much
-vacation pay and lose our profit sharing."
(f) In June 1964. Schreck stated to employee Heaton in a discussion concerning the
Union's majority vote in the election: "Weil. you boys know that Stark will either
,close the plant down or sell it." . In October, when the Union celebrated its certifica-
tion with a dineer,'Schreck told -Heaton-"to eat hearty because it is going-to cost you
about $2000." Early in November Schreck told Heaton that the -inen "lost the
Christmas bonus
(g) In October, after the Union's certification, Superintendent Snively told
employee Miller: "You guys got your union but you will pay hell ever getting a
-contract."
(h) Jess Ramsey, whose supervisory status, is at issue here and is discussed below,
told employee Sala pack at the time of the election in February that the Company
would shut down and would not pay a Christmas bonus if the Union won the, election.
About the same period, Ramsey. told.employee Lockhart, "If the Union comes in, we
.are not going to have any job." -'
In addition to the foregoing undenied statements, the record contains the testimony
-of employee Clarence Torrence that in August 1964, Don Mark, whose supervisory
status like Ramsey's is.in issue-here and is treated below, said to Torrence, "Once we
-got the Union in, we would lose our Christmas bonus, our profit sharing." Torrence
also testified that in the latter part of December, Mark stated on more than one occa-
sion, "I told you guys the Union cost us our bonus." Mark denied ever making the
-statemen_t that the Union would cause the loss of the bonus. Based on my observation
-of the witnesses, I unhesitatingly credit Torrence, for Mark's demeanor on the witness
stand impressed me as that of a thoroughly unreliable witness'. (I formed a far
different impression of Ramsey, who was the only other "contested" supervisor to
testify, and on whose veracity I would place great reliance. Ramsey was not ques-
tioned as to the allegedly illegal statements attributed to -him, )
In addition to the statements recounted- above, General Counsel relies ( 1) on an
allegedly illegal interrogatory as to" union affiliation which the Company included in
its application for employment form as well as in its employee history form which is
filled out W. the first posthire interview, and (2) on an allegedly illegal no -solicitation
rule which the- Company posted in October 1964, and implemented by allegedly
illegal statements of Vice-President Blosser to several employees at that time.
The evidence as to the interrogation is undisputed; Personnel Manager'Hoverkamp
testified that the Company form for application for employment included an inquiry
as to union affiliation, and that a similar inquiry is made orally by Hoverkamp when
he interviews newly hired employees as he fills out an "employee history" form. The
inquiry on the application form was abandoned in 1965 when Hoverkamp " learned
: The Company's operation comprises three adjacent plants known as plants A. B, and C.
9 The reference is to the April 1964 hearing, following the election in February, to re-
solve the challenges to the ballots of Reiter and three other alleged supervisors. The
transcript and decision in that case are in evidence in this proceeding.
a See p. 2 of the Hearing Officer's report in that case. See -also Tr. 26, 539 in that case,
establishing Schreek's supervisory status.
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from counsel that that was a question that [Hoverkamp] shouidri t ask." As evidence
that its interrogation is not for purposes of discrimination, the Company showed that
as recently as April 1965 it has hired an employee who indicated at the time of hire
that he was a union member.
The evidence is likewise undisputed that on October 15, 1964, the Company posted
a notice prohibiting "solicitation of employees for any purposes during working
hours." There is some dispute, however, as to what Blosser said to employees Zarvis,
Steffy, and Drewry on the subject. According to Zarvis, Blosser told him on
October 5 or 6 to "stop getting those union cards signed on company property." Steffy
testified that at this same period Blosser told him that "There is not allowed any solicit
ing on the company property." Drewry testified with respect to the same dates that
Blosser told him the Company "didn't want any more solicitations of employees in
the plant," and also referred to alleged threats the Union had made to employees in
the parking lot. On cross-examination Drewry continued:
I told him, "I was going to solicit during my break time on my own time and
on my lunch hour and after work in the parking lot. I didn't feel that was com-
pany time." But he again reiterated his statement that he made previously. He
didn't specify anything about company time.
Blosser testified that in his conversations with Zarvis and Steffy he admonished them
against solicitation "during working hours in the Want." Indeed, Blosser claimed that
he emphasized the "working time" application of the rule, and told Zarvis and Steffy
that what they did on their own time was their own business.
2. Conclusions with respect to the prebargaining
violations of Section 8 (a) (1) -
Although the Company filed no brief, analysis of the transcript and of the pleadings
suggests that it interposes the following defenses to the allegations summarized above:
as to the no-solicitation' rule, that it was validly limited to working hours in the plant;
as to the inquiry into union membership, that insofar as it was posthire, it was insignifi-
cant and pro forma, and insofar as it was prehire, it had been abandoned; as to the
statements attributed to Mark, Reiter, Ramsey, and Schreck, that they were not super-
visors, and the statements in any event were not unlawful; as to the undenied state-
ments attributed to Gonzales, Snively, and Blosser, that the statements were not
unlawful.
The last of these defenses need not detain us long; indeed I ascribe it to the
Company only because its answer denied all violations, for the statements and super-
visory nature of the employer representatives involved are either -stipulated or
undenied. Statements of responsible supervisors that the advent of the Union would
cause the employees to "lose everything Stark had given them," or that "the Company
would probably shut the plant down and wouldn't pay the Christmas bonus" are so
plainly coercive and hence violative of Section 8(a)(1) as to require neither further
discussion nor citation. Blosser's statement that the Company would never sign a
contract likewise amounted to interference with Section 7 rights, for it tends to
undermine employee support for the duly constituted bargaining agent by suggest-
ing the futility of following the course prescribed by the Act, and hence the futility
of exercising employee rights thereunder.
The statements attributed to Reiter, Schreck, Mark, and - Ramsey are likewise
illegal, under settled principles, if they are supervisory employees for whose utter-
ances the Company is legally responsible. Reiter's supervisory status is established
by the record in the representation proceeding referred to above, and Sehreck's
status, stipulated to on that record, would appear to be superior to Reiter's. Mark's
duties, authority, and responsibilities, according to testimony in the re presentation
proceeding, are substantially similar to those of Eicher and Reiter, who were held
to be supervisors in that case. As to Ramsey, it appears that his name (unlike
Mark's and those involved in the representation case hearing) was not even on the
list of eligible voters which the Company submitted in preelection conferences, a
list which included some 18 persons who the Union alleged was supervisors. With-
out detailing the testimony in the instant record on the supervisory status of Mark
and Ramsey, it suffices to note that based on the foregoing facts I am of the view
that they are supervisors,•but the violations attributed to them are so plainly cumula-
tive as to render unnecessary a detailed consideration of their status.
The illegality of the inquiry on application forms into union membership, at least
where accompanied, as here, by other unfair labor practices, is well settled. N.L.R.B.
v. F. H. McGraw and Company, 206 F. 2d 635, 641 (C.A. 6); N.L.R.B. v. Cen-
Tennial Cotton Gin Company, 193 F. 2d 502, 504 (C.A. 5); Community Motor Bus
STARK CERAMICS, INC. 1263
Company, Inc., 141 NLRB 703, 711-712, and earlier Board cases there cited. Its
abandonment during the course of litigation does not moot the matter. N.L.R.B. v.
F. H. McGraw and Company, supra. -Absent any showing of the necessity for, or
legitimate use of, the hiformation,- the same interdiction should apply to eliciting
the same information at the first personnel interview, even though it follows the
actual decision to hire. -
Finally, the no-solicitation rule, as posted, is valid as it is limited to working hours.
Testimony of employee witnesses Steffy, Zarvis, and Drewry indicates that they were
forbidden to silicit on company property, and a rule so broad would prohibit solicit-
mg on their own time and would be invalid. Blosser's testimony contradicts that
of Zarvis and Steffy in this respect; he was not asked about-that conversation with
Drewry. Although the latter's testimony is thus technically undenied, Blosser's
general explanation may fairly be construed as a denial of the statements attributed
to him by Drewry. All of the witnesses involved impressed me as basically honest
witnesses in this regard, and it is possible that Blosser was less explicit than either
he or they later recalled, so that the actual conversations left an ambiguity which
each participant honestly later recalled as he then understood rather than as he then
said or heard. In view of the fact that the rule as posted is valid, that Blosser testi-
fied to an intention of enforcing the rule in a valid manner, and that the broad order
hereinafter recommended would encompass any invalid application of the rule,
I make no finding that the rule as invoked was invalid.
C. The bonuses -
1. Background-the history of the bonuses prior to the Union's certification
Beginning in December 1944, and continuing for every year thereafter through
and including 1963, the Company had paid a yearend or Christmas bonus to its
employees. The bonus was graduated, in the sense that employees with over 5 years'
service received the largest sum, and diminishing sums were paid for employees
with less service, the smallest amount going to those with less than 6 months' employ-
ment with the Company. From 1947 through 1954 the payments ranged from $250
to $25, from 1955 through 1963 the payments ranged from $300 to $40, except for
1958 when the pre-1955 scale was used. Also beginning in December 1950 and
continuing each December thereafter through 1963, the Company paid a length-of-
service bonus in graduated amounts, giving S50 to each employee with 10 to 14 years'
service, and increasing that sum by $50 for each 5-year bracket, so that, for example,
employees with 35 0 39 years received $300. (In the case of the Christmas bonus
certain supervisory or lead employees received premium amounts of 150 percent,
200 percent, or 300 percent of bonus; the length-of-service bonus was not so
augmented.)
These bonuses were announced each December by the posting of notices, one for
each bonus, on the plant bulletin boards. Each notice recited that the bonus had
been voted by the board of directors, that it k^-as a special bonus for that year only
and was not intended to set a precedent for future years, and that Federal social
security and income taxes would be deducted from the payments. The Christmas
bonus notices from 1947 through 1962 (but not in 1963) included an observation
that bonuses "can only be paid from profits"; no such comment appears on the
notices announcing the length-of-service bonus.
Management frequently referred to the annual bonuses in reminding employees,
in the course of union campaigns, of benefits which the employees enjoyed. For
example, in a letter signed by Blosser which was sent all employees on the eve of
the 1964 election, the Company, after recounting existing employee privileges, states:
"In addition to these benefits, we have a unique yearend bonus which was started
back in 1944." In opposing a union campaign in 1960 a plant superintendent told
employee Drewry that he should figure his Christmas bonus and length-of-service
bonus as part of his wages. In that same campaign Blosser told employee Walker
that his bonus was as much a part of his earnings as the rest of his wages. The
Company did not merely so characterize the bonuses in propaganda to the employ-
ees, but also regarded them as an integral Dart of the wage structure for employment
purposes. Even in 1964. when at year's end the Company paid no bonuses, the
Company carried the cost of the Christmas bonus and service award as part of-its
operating cost each month during the year. Even after the Company had decided
to pay no bonuses in i964, its personnel director included both bonuses in his com-
putation of employee average hourly earnings (presumably for prior years) which
he submitted to the Union in a December 1964 bargaining session.
1264 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
In February 1964 the Union won the election,-but it was not certified until Septem-
ber 29, 1964 , when the Board finally determined the invalidity of the challenged
ballots. During the preelection and precertification period , as described above, super-
visory employees freely commented that a union victory would cost the employees
their bonuses . On November 2, 1964 , 1 month after the Union 's certification and
9 days before the first bargaining session, the board of directors voted to pay no
bonus 4 in December 1964.
2. Company-Union discussion of the 1964 bonus
At the first meeting-of the parties on November 11, 1964, the Union's chief nego-
tiator, Eugene Johnson, second vice president of the International , referred to the
activities of company supervisors and the rumors that were circulating concerning
the, bonus, and -asked Chester Nikodym, the Company's chief representative, if the
Company was going to ray the 1964 bonus. Nikodym replied, "«'e will talk about
that at the appropriate time in the future." At the next meeting, held December 9,
Johnson again asked if the Company-was going to pay the bonus. The Company
replied that it was not, and offered to submit financial data supporting its contention
that it would suffer a loss for the year if it paid the bonus. The Union replied that
it regarded the Company's action as the withholding of earned money, and as
"punitive action because the people joined the Union," and stated that it would file
an unfair labor practice charge with the Board. On December 10, the Company
reiterated in a letter to Johnson its position that economic considerations prevented
it from paying the bonus , and its readiness to submit "such information concerning
the company. finances as will properly enable you to evaluate our position in the
matter." At a bargaining session on February 12, 1965, the Company as part of
a^ single offer covering a new contract offered to pay 25 percent of the 1964 bonus.
The Union replied that its claim to the 1964 bonus, which it regarded as a vested
right, was pending before the Board (a reference to the instant litigation in which
a complaint had issued January 29, 1965, only to be superseded by a consolidated
complaint in June 1965), but that it was prepared to discuss any future bonus. At
later meetings the Company adhered to its offer to pay 25 percent of the 1964 bonus,
but after Apra 6 it separated that proposal from its proposal for a new contract.
Meanwhile, the members of the bargaining unit authorized a strike, in a vote taken
at a meeting in which-the bonus matter as well as the pending contract negotiations.
were aired. The employees went on strike or. April 7.
3. Conflicting contentions concerning the bonus
General Counsel 's position is that the bonus was part of the employees ' wages,
that its discontinuance by action of the board of directors after the Union 's certafica-
tion constituted a change of working conditions without bargaining with the Union,
in violation of Section 8(a)(5), and that the record points unmistakably to the
conclusions that the Company's action was motivated by antiunion considerations,
so that the failure to pay the bonus constituted unlawful discrimination to discourage
union membership in violation of Section 8(a) (3). The Company 's position is that
the bonus was determined on a year-by-year basis , that the failure to pay it in 1964
was the result of legitimate economic considerations , and that the Company "bar-
gained" about the matter by offering at the December 9 conference to submit the
financial data on which it relied. In addition to introducing evidence as to the
chronology of events and the bonus practice , as detailed above, the parties presented
additional evidence intended to support their contentions . Thus the Company pro-
duced financial data showing that from 1954 to 1962 the bonus had never exceeded
16 percent of net profit before income tax and bonus , that in 1963 when profits
dropped from over $600,000 to approximately $ 100,000, the bonus amounted to
83 percent of profits, and that the bonus was paid in that year because the Company
received a tax refund covering several prior years. The Company also introduced
evidence that the profits in 1964 dropped to $86 ,000, an amount slightly less than
the amount of the bonus payable in December 1964 under the usual formula. Other
data introduced by the Company shows that the Company 's decline in earnings in
1963 and 1964 paralleled a general decline in the industry . Finally, the Company
4 From this point on. the two yearend bonuses will be referred to collective ly as "the-
bonus." unless the context indicates otherwise.
5 The operating profit for 1963 was achieved by including in that year money due the
Company under the tax refund . Apart from that the operating figures for 1963 showed x-
$46.000 loss.
STARK CERAMICS, INC. 1265
produced- a tabulation showing that the first three quarters of 1964 (i.e., the quarters
completed at the time of the determination not to pay the bonus) showed a substan-
tial decrease in hours worked and earnings of employees, which the Company
alleged supported its claim of declining business. By far the sharpest decline, how-
ever, was in the first quarter of the year, and it was on February 24, 1964, when
that quarter was two-thirds over, that Vice President Blosser, in a letter to each
employee concerning the election to be held 3 days hence, pointed to the bonus as
one of the benefits enjoyed by the employees, and stated: "Right now it looks as
though 1964 should be a good business year. It is a bit too early to soundly predict
just how good it will be for Stark."
General Counsel, although relying primarily on the regularity of the bonus pay=
meats, and the evidence- that its discontinuance had been predicted by supervisors
as a probable reprisal for union activity, also pointed out that the Company in 1964.
commenced work on a construction or modernization program which was to cost, in
excess of $500,000, and that the 1963 bonus was paid out of "surplus." General
Counsel points out that in 1963, 2 months before the election, the Company paid
the customary bonus in full (not even reducing it to the pre-1955 level as it had in
1958),-even though its operations for the year (not including the tax refund and
interest thereon) showed a $46,000 loss; but in 1964, the Company determined to,
pay no bonus although its operations for the year showed an $86,000 profit.
4. Conclusions respecting the bonus
Bonus payments far less regular and of far shorter history than those involved
here have been held to be a part of wages, and as such a term or condition of employ
merit. N.L.R.B. v. Electric Steam Radiator Corporation, 321 F. 2d 733, 737
(C.A. 6); N.L.R.B. v. Exchange Parts Co., et al., 339 F. 2d 829 (C.A. 5); N.L.R.B.
v. Niles-Bement-Pond Company, 199 F. 2d 713 (C.A. 2). It follows that employer
discontinuance of the bonus without first bargaining about the matter with the
employees' statutory representative would be unlawful unilateral action violative of
Section 8(a)(5) and (1) of the Act. The Company's annual recitation that the
bonus payment for that particular year set no precedent for future years does not
change the character of the bonus as part of the wage structure, -particularly in view
of the undenied evidence that the Company referred to the bonus as among the
benefits which the employees enjoyed without a union, and included the bonus cost
in its monthly operating computation.
The Company, to be sure, told the Union at a bargaining meeting on December 9
that the Company was not going to pay the 1964 bonus, and offered to show the
financial data on which it said it relied for- this decision. But the Company board
of directors had made this decision on November 2, a month after the Union was
certified. It was at this time that the Company failed it.. its bargaining obligation,
and its after-the-fact offer to explain its unilateral action does not cure the violation.
Even on December 9 the Company was not prepared to bargain in good faith about
the 1964 bonus; when Johnson asked if the Company was going to pay the bonus,
he "got an emphatic no." It may also be noted as casting some doubt on the good
faith of the Company's conduct during this period that on November 11 Johnson
asked about the bonus, because of the-threats that had been made that a union vic-
tory would-cost the employees their bonus, and Nikodym replied that that was a
subject for future discussion. Yet, according to Company President Stewart, the
decision not to pay the bonus was reached on: November 2. (Stewart "believed"
that Nikodym '-was advised of that decision" before November 11; Nikodym testified
that he "was informed that [the board of directors] had discussed" the bonus, but
"was never told that they would never under any circumstances pay it.")
I find, in short, that the Company violated Section 8(a)(5) and (1) by its failure
to bargain over the discontinuance of the bonus in 1964. General Counsel also
alleges that this failure to pay the 1964 bonus was motivated by antiunion considera-
tions, and therefore violated Section 8(a)(3) and (1). In support of this allegation,
General Counsel points to the earlier threats tiliat advent of the Union would cost
the employees their bonus, and also to circumstances which militate against giving
controlling weight to the economic arguments advanced by the Company.
Repetition here of the threats made anent the bonus would serve no useful pur-
pose. Insofar as such sentiments were expressed by persons like Mark, Reiter,- and
Ramsey, whom I have found to be supervisors but who were far from prominent in
the company hierarchy, I am inclined to discount them as not showing company
motivation. But more potent voices were heard to the - same effect, notably those
of Scbreck, Gonzales, and Snively, and their statements are not only attributable to
1266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Company for purposes of Section 8(a)(1) but may also reasonably be, found
to reflect management's view in assessing the motive for its action. Blosser himself
gave=some indication that the advent of the Union and the end of the bonus were
not unrelated, for in a conversation with employee Miller, after the board of directors
voted to pay no bonus but before this result was publicly known, Blosser said, "My
job and John's job [presumably a reference to Company President John Stewart, Jr.]
is up for bids How in the world are we ever going to pay a bonus- if we are not
here:"
The Company urges that the nonpayment of the 1964 bonus has a valid, economic
explanation in-the Company's operating statement. Pointing out that the Christmas
bonus (although not the length-of-service bonus) was annually accompanied by a
reminder that it was paid out of profits, the Company shows that the $86,000 profit
in 1964 was not quite sufficient to pay the whole bonus. General Counsel points
out- that the full bonus was paid- in 1963 when the operative business showed a
$46,000 loss, and urges that the Company could have paid the 1964 bonus out of
surplus as it did in 1963,7 particularly as its operating statement showed a substantial
improvement in 1964. -
The record as a whole shows what may fairly be characterized as company "pre-
occupation" with the bonus as a factor, if not actually a weapon, in its relations with
the Union. In urging the employees to vote against the Union, the Company had
repeatedly (and lawfully) pointed to the bonus as among the benefits the employees
enjoyed without a union, and on the eve of- the last election company supervisors
repeatedly (and unlawfully) threatened that a union victory would mean discon-
tinuance of the bonus. After the Union's certification the Company decided to pay
no bonus in 1964, but withheld this fact for over a month before telling the employ-
ees' bargaining representative. During this period, however, Production Manager
Blosser tied in a comment about "job bidding" (a union demand) with a none too
oblique comment that the bonus might not be paid. Then, after the bonus matter
was in the open, and a complaint had issued-alleging illegality in its nonpayment,
the Company conditioned a new contract on the Union's compromising the bonus
(see infra for a discussion of the illegality of conditioning agreement on the drop-
ping of an unfair labor practice charge), and shortly thereafter, on March 19, 1965,
wrote the employees that the_Union had placed their bonus in the hands of the Board.
In essence, the determination whether the bonus was withheld for a discriminatory
reason or out of economic necessity is an issue substantially similar to that repeatedly
confronting the Board and the courts in determining whether a particular discharge
was for union activity or for some lawful reason such as poor work or other fault
of the employee. The ultimate decision here, as in those cases, must necessarily
rest on an inference drawn from the underlying facts, as direct evidence of a purpose
to violate the statute is rarely obtainable. All this was recognized, and indeed held,
by the Sixth Circuit in N.L.R.B. v. Electric Steam Radiator Corp., 321 F. 2d 733,
738. In that case the court concluded:
In any event, even accepting respondent's contention that these were reasons
why the bonus was not paid, it in no way establishes the fact that these were
the only reasons. In addition to such reasons, antiunion motivation could also
have been a material contributing reason. It is not necessary that antiunion
motivation be the only reason for the discriminatory action complained of. It
is sufficient if it is a substantial reason, despite the fact that other reasons may
also exist.
Upon the record in this case, I have no doubt that the Union's certification was at
the very least a "substantial reason" for the nonpayment of the 1964 bonus; the
record at the very least warrants the inference that had the Union been merely
knocking at the door rather than already within the gates the Company would have
paid the bonus in 1964 as it did in the less profitable 1963. I therefore find that
the Company violated Section 8(a) (3) of the Act by withholding the 1964 bonus to
discourage union activity.
The foregoing findings with respect to Section 8(a)(3) render all but inevitable
a remedial order directing the Company to pay the 1964 bonus in the customary
amounts. But even if the withholding of the bonus had been violative only of
Section 8(a) (5), I should recommend the same remedy. At the time the bonus was
'This was plainly a reference to the Union's request for "job bidding" as one of the
reforms it urged on the Company. See Company's Exhibit No. 4.
7 The record is silent as to the general financial health of the Company, the salaries of
its officers, etc.
STARK CERAMICS, !NC. 1267
withheld the Company had already included the future bonus cost as part of its
monthly operating expenses, and even after the Company had decided not to pay
the 1964 bonus, it included bonus earnings in the average wage data it presented the
Union at a bargaining session. The bonus payments were not only an integral, but
also an appreciable, part of the employees' earnings. For example, an employee
who had worked over 15 years (and in 1963 this group constituted about one-third
of the employees) would receive $400 in annual bonuses, which if figured on the
basis of 50 weeks a year at 40-hours a week or 2.000 hours, represented 20 cents
per hour. For the Company to cut wages by 20 cents an hour (or any lesser figure,
for that matter) without notice to, and bargaining with, the statutory bargaining
representative, is as found above a violation of Section 8(a)(5) and (1). Such a
violation can scarcely be remedied by a pious admonition to go and sin no more,
and even a requirement, effective years after the event, that the parties now "bargain"
about it opens the door to "horse trading" in the future on matters that should have
been fixed as of the past. If, instead of canceling the bonus, the Company had
introduced a drastic wage cut without first notifying and bargaining with the Union,
restoration of the cut would seem appropriate to restore the status quo ante. Of
course, the payment of bonuses, like a future wage cut is a bargainable matter in
that the Company, if economic circumstances render it so advised, may initiate such
proposals , and after bargaining in good faith may implement its proposal even in
the absence of agreement. But the statute contemplates bargaining before rather
than after a change in employment conditions. Under this reasoning the Board
with judicial approval has ordered the restoration of similar bonus payments even
absent a showing of discriminatory motivation. See, e.g., N.L.R.B. v. Central Illinois
Public Service Company, 324 F. 2d 916 (C.A. 7). To be sure, the reimbursement
order was set aside in N.L.R.B. v. Citizens Hotel Co., d/b/a Hotel Texas, 326 F. 2d
501 (C.A. 5), but the same court later explained that holding as arising "because
of the particular circumstances of that case, largely because it was apparent that the
bonus had for some time been paid out of capital since the Hotel Company was
operating at an annual loss, but also largely because we found no other conduct
showing anti-union motivation." N.L.R.B. v. Exchange Parts Co., supra. In
Exchange Parts, the court sustained the reimbursement order without finding dis-
crimination , but only unilateral action, in the failure to pay the bonus there
involved.
D. The failure to bargain in good faith
In addition to the violation of Section 8(a)(5) inherent in the unilateral action
with respect to the bonus General Counsel alleges that the Company was guilty
of a refusal to bargain in good faith evidenced by its conduct at the bargaining table
and by its correspondence with employees during the course of the bargaining,
With respect to the conference themselves the record shows that the parties met at
mutually agreed on intervals over a period of several months. At several meetings
the Company's proposal was that the Union, as part of the agreement being nego-
tiated, accept a settlement of the 1964 bonus at 25 percent. Inasmuch as the bonus
matter was already the subject of a complaint issued by the Board, the proposal in
essence was that the Union, as part of the price of a new contract, withdrew its
unfair labor practice charge. So construed, the Company's offer was plainly viola-
tive of Section 8(a) (5), for it is a "refusal to bargain" to insist on the dropping of
a charge as a condition to obtaining a contract. See Lion Oil Company v. N.L.R.B.,
-245 F. 2d 376, 379 (C.A. 8), and cases there cited; American Laundry Machinery
Co. v. N.L.R.B., 174 F. 2d 124 (C.A. 6), enfg. 76 NLRB 981, 983. In Lion Oil,
as here , the company subsequently retreated from the condition, a matter which,
the court held, did not cure the violation. Indeed the finding of violation in the
instant case follows a fortiori from Lion Oil where the objectionable condition was
presented on only one occasion.
Apart from the condition just mentioned, however, the actual content of the bar-
gaining conferences does not, of itself, establish bad faith. The Union's own
monetary demands were never crystallized, and the Company never urged the Union
to be more speciific. The parties remained apart on such issues as union security,
seniority, and arbitration. Also, with respect to grievance procedure, the company
proposal would have excluded the union representative at the first two stages,
although another provision of the Company's proposal repeated the statutory lan-
guage that the Union be given -an opportunity to be present at the adjustment of
grievances. Apart from the abandoned attempt to compromise the bonus, the posi-
tions which the Company maintained at the bargaining, with the possible and minor
212-809^66-vol. 155-81
1268 D ,CISION S OF NATIONAL LABOR RELATIONS BOARD
exception of the grievance procedure clause, are not per se invalid or even indicative
of bad faith. An employer is under no legal compulsion to agree to a union-security
clause, or to submit to binding arbitration, or even to abdicate his judgment in pro-
motions or layoffs in favor of a flat seniority provision. He is, however, under lega'
compulsion to negotiate about these and other matters in good faith. The record
here discloses that as soon as the Union won the election Vice President and Pro-
duction Manager Fred Biosser stated separately to two employees that the Company
would not sign a contract, and added to one of them that "you could vote it [the
Union] out in a year." After the Union's certification, Snively, a highly placed
supervisor, told another employee, "You guys got your union, but you will pay hell
ever getting a contract." Biosser, called as a witness by the Company, was not asked
to, and did not deny the statements attributed to him concerning the Company's
approach to the bargaining table, although he did contradict other testimony in the
record. Snively, whose supervisory status was conceded, was not called. When an
employer approaches the bargaining table with a preconceived determination not
to reach agreement, he cannot be heard to say that he has bargained in good faith,
even though on the surface none of his positions in the bargaining would be unten-
able if taken in good faith. I find therefore that, in addition to the bargaining viola-
tion inherent in the unilateral action, the Company failed to bargain in good faith
with the Union. This conclusion does not, of course, require the Company to reach
agreement on any or all the matters in dispute. But assuming the Company
acquiesces in this decision or that the views here expressed ultimately find approval
in subsequent administrative and judicial review, the Company's future conduct at
the bargaining table must be such as to dispel the impression, thus far fostered by
its words as well as its deeds, that its negotiations with the Union are conducted
with an eye to stalling until the Union can be unseated rather than with the purpose
of reaching an accord.
Finally, General Counsel alleges that the Co: pany's communications to employ-
ees during the course of the-bargaining evidence a failure to bargain in good faith
under the doctrine of General Electric Company, 150 NLRB 192. In support of
this allegation General Counsel-introduced a series of letters from Company Presi-
dent Stewart to the employees, two of which -,were written after bargaining confer-
ences but before the strike, and four of which were written during the strike. The
two prestrike letters, which were designed to "report to [the employees] on the
progress of [bargaining] negotiations," purported to set forth the positions taken at
the conferences by the negotiators for each side, and were critical of the Union's
position. The first- letter, after setting forth the Union's demand for full payment
of the 1964 bonus, continued: "We do not consider this to be the type of bargaining
you. should expect from your bargaining agent." The second letter observed on the
same subject: "We don-t think this attit ide is in your best interest." The letter
informed the employees that the Union had rejected the 25 percent of bonus offer
'and had left the issue to be disposed of by the Board. The letter continued: "What
if the NLRB says that we don't have to pay the bonus? Is this fair to your families?"
The first and second poststrike letters urged the employees to abandon the strike and
return to work. The last two letters repeated that theme, but also attacked the Union
for rejecting the Company's proposals, details of which were set forth in the letters.
The extent of the Company's letter campaign does not begin to compare with that
involved in General Electric, supra, 194-195. Even in that case, moreover, the
Trial Examiner not only refrained from holding the employer communications
"per se" violative of the Act but suggested that "the communications may have been
lawful or even `protected' standing alone." To be sure, the Board, affirming the
Trial Examiner, stated:
It is inconsistent with this [bargaining] obligation for an employer to mount a
campaign, as Respondent did, both before and during negotiations , for the
purpose of disparaging and discrediting the statutory representative in the eyes
of its employee constituents, to seek to persuade the employees to exert pressure
on the representative to submit to the will of the employer, and to create the
impression that the employer rather than the union is the true protector of the
employees' interests. As the Trial Examiner phrased it, "the employer's statu-
tory obligation is to deal with the employees through the union , and not with
the union through the employees."
But it is by no means clear that the Board in the above-quoted passage intended to
go beyond the views expressed by the Trial Examiner, and in any event the "cam-
paign" here fell far short of that "mounted" by the employer in General Electric.
STARK CERAMICS I\ C. 1269
In General Electric, as I read it, the Board affirmed the Trial Examiner's finding
that the communications there, read in the light of the entire record of that case,
furnished evidence that the employer did not approach the bargaining table with
a good-faith desire to reach agreement. Although I have reached the same result
in this case , my f nding does not rest on the communications which the Company
addressed to the employees.
E. Unfair labor pmctices during ttiestrike
The strike which began April 7, 1965, pursuant to strike authorization voted the
preceding month was caused by employee dissatisfaction over the nonpayment of
the 1964 bonus and over t e failure of bargaining negotiations to produce agreement.
I have found above that the unilateral decision to discontinue the bonus violated
Section 8(a) (5), that it was discriminatorily motivated in violation of Section
8(a)(3). and that * e Company did not approach the bargaining conferences with
a good-faith desire to reach agreement, thereby violating Section 8 (a)(5). If any
one of these findings is correct, the ensuing strike was an "unfair labor practice
strike." During the course of the strike, the Company through its correspondence
with employees and through statements of individual supervisors to individual
strikers urged the employees to abandon the strike and return to work. Such
attempts to deal with striking employees directly rather than through their union
have been uniformly condemned as violating Section 8 (a)(1). N.L. R.B. v. Bradley
Washfountain Co., 192 F. 2d 144, 152-153 (C.A. 7); N.L.R.B. v. Clearfield Cheese
Co., Inc., 213 F. 2d 70, 72-73 (C.A. 3); N.L.R.B. v. Montgomery Ward & Co.,
133 F. 2d 676, 681-682 (C.A- 9): N.L.R.B. v. Dubois Chemicals, Inc., 327 ;7. 2d 494
(C.A. 1),enfg. 140 NLRB 103, 116.
General Counsel also alleges violation of Section 8(a)(1) in the Company's pho-
tographing of pickets (from the ground and by helicopter), in the use of armed
guards, and in threats of violence to strikers. With respect to the photographs the
testimony of Company President Stewart establishes that the Pictures were taken to
help the Company establish in an injunction action that the pickets engaged in
violence and mass picketing. So motivated, the picture taking was not unlawful.
Cf. Radio industries, Inc., 101 NLRB 912, 914, 925; Hudson Bosiery Company
(14/1 onroe Road Plant), 109 NLRB 1410; 1411, 1416. The mere fact that the Com-
pany employed armed guards would not, standing alone, establish a violation of the
Act, as there is some evidence that the Company had reason to protect its property
and nonstriking employees against strike violence. The record does contain evi-
dence, however, that one Stauffer , an elderly but vigorous man employed as a plant
guard and using weapons which the Company knew he possessed , attacked a striker,
Napoleon Torrence, with a "slapjack" at a time when Torrence was conducting
himself peaceably . There is also evidence that Production Manager Blosser threat-
ened to shoot employees who placed nails on the roadway and threatened to place
land mines on the property to blow up trespassers. As Blosser's threats were couched
in terms of retaliation for activity not protected by the Act I cannot find that they
interfered with, restrained, or coerced employees in the exercise of Section 7 rights.8
Stauffer's attack on Torrence, however, occurred when Torrence was engaged in
conduct protected by the Act (peaceful picketing in the course of a strike), and
therefore violated Section 8(a) (1). N.L.R.B. v. Ford Motor Company, 114 F. 2d
905, 911 (C.A. 6).
CONCLUSIONS OF LAW
1. By threatening the employees with loss of benefits or with less of employment
if they selected the Union to represent them, by avowing its determination not to
sign a contract with the Union, by systematically interrogating prospective employees
and newly hired employees as to their union affiliation, by communicating with
unfair labor practice strikers as individuals, rather than through their Union, in an
effort to persuade them to abandon the strike and return to work, and by attacking
an employee engaged in lawful peaceful picketing, the Company engaged in unfair
labor practices affecting commerce within the meaning of of Section 8(a)(1) and
Section 2 ( 6) and (7) of the Act.
2. By making a fiinal determination not to pay the 1964 bonuses without prior
notice to or bargaining with the Union, and by engaging in bargaining sessions with-
8 Whether the implementation of such threats would give rise to civil or criminal habil-
ity are questions manifestly outside the scope of this case.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out a bona fide desire to reach agreement with the Union , the Company engaged in
unfair labor practices affecting commerce within the meaning of Section 8(a) (5)
and (1) and Section 2 (6) and (7) of the Act.
3. By failing to pay the 1964 bonuses for the purpose of discouraging membership
in the Union, the Company engaged in an unfair labor practice affecting commerce
within the -meaning of Section 8(a) (3) and (1) and Section 2(6) and (7) of the Act.
4. The strike which began in April 1965 was caused by the unfair labor practices
described in the second and third of the foregoing conclusions and was therefore an
"unfair labor practice strike."
III. THE REMEDY
I shall , of course , recommend the customary cease-and-desist order for the unfair
labor practices found, and include an order couched in bread terms to prohibit any
violation of employee rights under the Act, as the Company 's conduct and attitude
require. Armatively, I shall recommend the payment of the 1964 bonuses in the
amounts computed according to the formula used by the Company in the years
1959-63, inclusive, with interest at 6 percent per annum, payable on the Christmas
bonus from December 11 , 1964, and on the length-of-service bonus from Decem-
ber 16, -1964.1 As noted above, I believe this relief is appropriate on this record to
remedy the violation of Section 8(a) (5); the violation of Section 8(a) (3) furnishes
added reason for the remedy . As the strike is an unfair labor practice strike, I shall
recommend the conventional remedy that each striker be reinstated - on his applica-
tion, replacing if necessary employees hired during the strike , with backpay for any
striker not reinstated within 5 days from his application , said backpay to be computed
under the formula set forth in F. W. Woolworth Company, 90 NLRB 289 and Isis
Plumbing & Heating Co ., 138 NLRB 716. Finally, I shall recommend that the
Company be required to bargain in good faith with the Union , and that it post
appropriate notices.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record in this case, and
pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recom-
mend that the Respondent , Stark Ceramics, Inc., its officers, successors, agents, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of benefits or loss of employment because of
the selection of United Brick and Clay Workers of America , AFL-CIO, as their
bargaining representative.
(b) interrogating applicants for employment or newly hired empkeess as to their
'union affiliation.
(c) Avowing a determination not to enter into contractual relations with the
employees ' designated bargaining representative.
(d) Dealing with individual employees in an effort to persuade them to abandon
an unfair labor practice strike called by their bargaining representative.
(e) Committing acts of violence against striking employees engaged in peaceful
picketing. -
(f) Changing any term or condition of employment of employees in the bargaining
unit found appropriate in Case No. 8-RC-5464, without prior notice to or bargaining
with the aforesaid labor organization.
(g) Refusing to bargain in good faith with the aforesaid labor organization as
the representative of the employees in the above unit.
(h) Discriminating with respect to any term or condition of employment to dis-
courage membership in the aforesaid labor organization.
(i) In any other manner interfering with, restraining , or coercing employees in the
exercise of their rights under Section 7 of the Act.
2. Take the following affirmative action which I find will effectuate the policies of
time Act:
(a) Upon request, bargain collectively in good faith with the above-named labor
organization as the statutory representative of the employees in the above-described
unit.
P The length -of-service bonus was paid on December 18, 1957, December 17, 1958, Decem-
ber 16, 1959 . December 14, 1960, December 13, 1961, December 12, 1962 , and December 18,
1963. The Christmas bonus, somewhat Jess regular as to precise date. was paid Decem-
ber 9, 1961 , December S . 1962, and December 6, 1963.
STARK CERAMICS, INC. 1271
(b) Pay to each of its employees the amounts due them under the 1964 Christmas
and length-of-service bonuses, with interest thereon, according to the formula set forth
in the portion of the Trial Examiner's Decision entitled "The Remedy."
(c) Upon application reinstate any and all strikers to their former positions, dis-
charging if necessary employees hired since the commencement of the strike, and in
the event of failure so to reinstate, make whole, in the manner set forth in the portion
of the Trial Examiner's Decision entitled "The Remedy," any striker thus deni.d
reinstatement.
(d) Preserve and, upon request, make available to the Board or its agents, 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 due under the terms hereof.
(e) Post at its plant at East Canton, Ohio, copies of the attached notice marked
"Appendix." 10 Copies of such notice, to be furnished by the Regional Director for
Region 8, shall, after being duly signed by an authorized representative of the
Respondent, be posted immediately upon receipt thereof, and be maintained by it for
a period of 60 consecutive days thereafter, 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.
(f) Notify the Regional Director for Region 8, in writing, within 20 days from the
date of the receipt of this Decision, what steps the Respondent has taken to comply
herewith.11
10 In the event that this Order is adopted by the Board, the words "an Order" shall be
substituted for "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" shall be inserted
immediately preceding "an Order."
"In the event that this Order Is 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."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a 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, as amended. we hereby notify our employees that:
WE WILL pay the 1964 Christmas and length-of-service bonuses to our employ-
ees with interest at 6 percent from December 1964. We reserve the right to
bargain with your Union over whether such bonuses are to be paid in any future
year.
WE WILL, reinstate on his application any employee who went out on, or
joined, the strike which began in April 1965.
WE WIT_.L bargain in good faith with United Brick and Clay Workers of
America, AFL-CIO, in an effort to negotiate an agreement, and will reduce to
writing and sign any contract reached as the result of such negotiation.
WE WILL NOT threaten to withhold, or actually withhold, benefits from our
employees as the result of their choosing the above Union as their bargaining
representative, or attempt to deal with them individually rather than through the
Union, or commit acts of violence against employees engaged in peaceful picket-
ing, or question applicants or newly hired employees as to their union affiliation,
or in any other manner interfere with, restrain, or coerce employees in their right
to join or assist any union, and to bargain collectively through representatives of
their own choosing.
STARK CERAMICS, 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.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio, Telephone No. 621-4465.