The Stanley Works

National Labor Relations Board - Board Decisions

Aug 3, 1967

166 N.L.R.B. 984 (N.L.R.B. 1967)

984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stanley Building Specialties Co. a subsidiary of The
Stanley Works and United Steelworkers of Amer-
ica, AFL-CIO, Local 5571 . Cases 12-CA-3148,
12-CA-3201 (1-2), and 12-CA-3343
August 3, 1967
DECISION AND ORDER
On February 28, 1966, Trial Examiner Max
Rosenberg issued his Decision, attached hereto, in
the above-entitled proceeding, finding that the
Respondent had not engaged in any unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
the complaint be dismissed in its entirety.
Thereafter, the General Counsel and the Charging
Party filed exceptions to the Trial Examiner's Deci-
sion and supporting briefs. The Respondent filed a
brief in support of the Trial Examiner's Decision
and an answering brief.
The National Labor Relations Board has
reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Deci-
sion, the exceptions and briefs, and the entire
record in this case, and adopts the Trial Examiner's
Decision only to the extent consistent herewith.
The Trial Examiner found that the Union ad-
vanced no wage proposals prior to January 27 or
28, 1965. He concluded, therefore, that prior to
those dates the Union was not entitled to the
production of Respondent's financial statements,
and Respondent's refusal to produce them prior to
that time did not violate Section 8(a)(5). He further
found that even after the Union advanced its wage
proposals, Respondent did not plead poverty but
expressed concern that the wage differential
between Respondent and Air Control, a competi-
tor, endangered its competitive position, and
Respondent would not offer more than a $.04
hourly rate increase until the Union forced its com-
petitor to increase its wage scale. This "firm stand"
without documentation did not constitute bad-faith
bargaining, according to the Trial Examiner,
because it was not premised on a claim of financial
inability but on its competitive position in the area.
He also found that, assuming Respondent did in
fact plead poverty, it, nevertheless, did not violate
Section 8(a)(5) by failing to substantiate its claim
because it at no time attempted to deceive the
Union with respect to its financial position, and, in
fact, advised the Union that it had made a small
profit, always stood ready and willing at every bar-
gaining session to meet with and discuss anything
the Union wanted to discuss; and the mere failure
to produce the financial statement, standing alone,
is not sufficient ground for a finding of bad-faith
bargaining. Finally, he found that the employees
went on strike because Respondent's wage
proposal was not large enough, rather than because
Respondent did not produce the financial informa-
tion requested, and, therefore, the strike was an
economic, rather than an unfair labor practice,
strike. The Trial Examiner concluded, therefore,
that Respondent did not violate Section 8(a)(3) by
refusing to reinstate some of the strikers, by rein-
stating some strikers to different jobs and shifts, and
by subsequently laying off some strikers while
retaining employees who had been hired as replace-
ments during the strike.
The General Counsel and the Charging Party ex-
cept to these findings, contending, in essential part,
that Respondent invoked a plea of poverty shortly
after negotiations began, and therefore, that a find-
ing of an 8(a)(5) violation is not precluded by the
fact that the Union's request for financial informa-
tion preceded a specific wage proposal. Both parties
further contend that Respondent, in effect, did
plead financial inability throughout the entire
course of negotiations, and that it did demonstrate
bad faith when it declined to furnish the information
requested. In addition, they argue that the strike
was an unfair labor practice strike rather than an
economic strike, that there can be no question but
that the major issue separating the parties was the
wage issue, and, because of Respondent's refusal to
furnish the requested information, the resolution of
the wage issue here was made impossible. Finally,
both the General Counsel and the Charging Party
contend that Respondent's failure to reinstate all
the strikers within a reasonable time after the
Union's unconditional offer on behalf of all the
strikers to return to work, the subsequent laying off
of strikers, and the assigning of returning strikers to
different jobs and work shifts, violated Section
8(a)(3) of the Act. We find merit in these exceptions
and contentions.
At the first bargaining session on October 19,
1964, the Union included several proposals which
were clearly economic in nature- severance pay,
cost of living increases, bereavement pay, overtime
for Saturday work, and jury duty pay. Then, on
November 28, before the next bargaining session,
Respondent's general manager, Farley, wrote a
letter to all employees in which Respondent called
attention to the preparation of its 1965 budget and
specifically indicated that its financial position in
1964 had fallen below its hopes and expectations.
Farley wrote, in pertinent part:
However, increased sales do not necessarily
mean increased profits or earnings. Earnings
are what is left after expenses are paid. Unfor-
tunately, our cost of doing business has in-
creased alarmingly, resulting in earnings not in
proportion to our sales increases.
Material costs have increased and we have also
spent large sums in improving our working con-
166 NLRB No. 110
STANLEY BUILDING SPECIALTIES CO. 985
ditions by bringing the property and equipment
to a better appearance and operating condition.
At the second bargaining session on December 8,
the Union, in addition to renewing its previous
proposals, also submitted other economic de-
mands - an increase in hospitalization benefits and
the payment of higher wage rates to employees who
had accumulated 2 days' experience in jobs calling
for such rates. It was at this meeting that the Union
first requested financial data from Respondent. On
the following day, the Union sent a letter to
Respondent in which it specifically referred to
Respondent's notification to all employees of its
financial position, and again requested financial in-
formation so that it would be able "to make a
realistic approach to the joint problems." Although
Respondent answered the Union's request for data
by supplying the consolidated financial reports of
the parent company, it failed to produce any finan-
cial information with regard to its own operations,
stating that "it was not available and not the com-
pany's [The Stanley Works] policy to make it
available."
The parties met again on January 19. At that
meeting, it appears that Burger stated that "the
Company as a whole is making money but we are
not making money in this division, that we have to
stand on our own down here and if we can't make it
here, one of these days they will be closing the
doors, because we have been losing money long
enough." McCall immediately requested that
Burger support his position with the financial infor-
mation previously sought, and Burger again took
the position that it wasn't the policy of the Com-
pany to make the information available, and that
they didn't make it available to other unions.
On January 26, Respondent wrote another letter
to its employees in which it sought to explain its
proposal to the Union. The letter stated, in per-
tinent part:
To give you a little background, you will recall
in previous letters I had mentioned to you that
1964 had been a very trying and difficult year.
Even though our sales were higher, our
earnings were considerably less than the year
before.
I think you have a right to know how your com-
pany can do more business and yet realize less
profit. The reasons are not simple ones. One is
the fact that we had a rash of price increases
during the past twelve months. Our aluminum
costs went up three different times and our
glass cost was increased 15%.
An even more important reason is to meet
customer requirements for our new business,
we had to increase the number of employees
and work many hours overtime, which is very
costly. The overtime has been reflected in each
of your pay checks.
The increased costs did not end with overtime
and new trainees because all the contributing
areas of cost in the plant went up accordingly
with the increase of employment and hours.
At the January 27 or 28 meeting, according to
Burger's own testimony, he told McCall that "if we
[Respondent] gave any more, at this time, that I
didn't see how we could remain competitive and
that we felt as though we weren't refusing to give
and that we could offer something and that is what
we were offering."1 On cross-examination, Burger
elaborated on Respondent's bargaining position by
testifying, "And so we just didn't see how we could
stay in competition and be competitive if we would
go in and grant another $. 10 and $.08 increase in the
contract like Mr. McCall asked for orginally [sic],
so what we did offer was what we felt or hoped that
we could overcome or live with." It is undisputed
that at this point McCall asked Respondent for
financial data with respect to its own operations to
support its position, and that Respondent again
refused on the ground that the parent company
would not provide any additional material.2
A scrutiny of the foregoing evidence, and the
record as a whole, convinces us Respondent took
the position after the first bargaining session that it
could not afford substantial increases in wages and
other benefits, and by the January 27 or 28 meeting,
and thereafter, its position had crystallized into a
claim of inability to pay more than it was offering
and remain competitive. While we need not decide
whether Respondent's refusal on or about
December 10 to supply the financial data requested
by the Union constituted a violation of the Act 13 we
do not read the Supreme Court's holding in
' This more complete quotation of Burger's testimony is at variance
with the Trial Examiner's findings. The Trial Examiner found that Burger
stated, in response to McCall's statement to the effect that The Stanley
Works' emblem represented dollars to him, that Respondent could afford
a 2-percent increase at the time and "that is what we were offering."
2 In addition, the record also shows that Respondent otherwise hid be-
hind its financial plight in failing to consider seriously the Union's further
economic demands. Thus, General Manager Farley stated in a speech to
the employees on January 30, "... I would like to give you an increase
this year, but we are going to try it and hope that we are going to make out
by the one we give you next year."
We also note that even when Federal Mediator MacAllister presented
the Union's reduced demands to Respondent at the February 3 bargaining
session, Burger replied, "It's not there . ." And, at the February 12
meeting, Burger stated that he "didn't see how we [Respondent] could
remain competitive if we offered any more than we were offering."
3 Rather than seeking the information in order to ascertain what the
traffic would bear, as intimated by the Trial Examiner, we think the
Union's earlier request for financial data was understandable, particularly
in view of Respondent 's apparent prosperity during the 2 years of the ex-
piring agreement and Respondent 's suggestion in its November 23 letter
to the employees that the economic picture was not as bright as it ap-
peared We view the Union's request, therefore, as an earnest attempt to
come to grips with Respondent's professed inability to meet the Union's
current and anticipated demands.
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R.B. v. Truitt Mfg. Co., 351 U.S. 149, as
precluding an inquiry into Respondent's conduct
before negotiations have commenced or before the
Union has laid its complete economic proposals on
the bargaining table, where the question presented
to us is whether Respondent acted in good faith in
calling attention to its financial plight in order to
forestall the Union's request for increased wages
and other economic benefits but. at the same time,
refusing to furnish requested supporting data.4
The ordinary case, of course, is one where the
Union makes a demand for increased wages and the
employer resists the demand on the ground of its in-
ability to pay, but refuses the union's request to
substantiate its claim. However, we do not believe
that the Court in Truitt intended to restrict its hold-
ing to these simple facts; we read that case rather as
announcing principles that are generally applicable
to a wide variety of bargaining situations in which
good-faith obligations under the Act require that a
party to bargaining negotiations be willing to sub-
stantiate on request a position it has taken during
the course of the negotiations We also reject the
Trial Examiner's apparent basis for finding that the
Union was not entitled to the production of
Respondent's financial statements prior to the
meeting of the parties on January 27 or 28. It is
clear that Truitt is not limited to situations where a
company refuses to substantiate its plea of inability
to pay wage demands made by the Union. Such a
limited view of the Court's decision ignores the
realities of industrial relations where other
economic benefits may be more coveted than wage
increases during a given round of negotiations.
As the record shows that the Union again
requested financial data at the January 27 or 28
meeting, after Respondent had claimed an inability
to pay more than it was offering and remain compe-
titive,5 and Respondent refused to furnish the info-
rmation,6 a refusal which contributed to a stalemate
in the negotiations, we find that Respondent failed
to bargain in good faith in violation of Section
8(a)(5) of the Act.
We also find that the stalemate in negotiations to
which Respondent's refusal to furnish information
" Unlike the Trial Examiner, we do not reach that issue herein, for the
record plainly shows that negotiations had begun and the Union had made
economic demands on Respondent before it requested the financial data
5 We find that in the circumstances of this case such a claim is, in effect,
a plea of inability to pay See, e g , Peerless Distributing Company, 144
NLRB 1510, 1514, Western Wirebound Bur Co, 145 NLRB 1539,
1544-45, Wheeling Pacific Company, 151 NLRB 1192, 1224-25
fi A cursory reading of Respondent's November 23 and January 26 let-
ters to its employees, particularly those portions set forth in our Decision,
discloses some of the information which Respondent, if acting in good
faith, could and should have documented for the U mon, but which it chose
instead to divulge only to its employees in an argumentative fashion
without documentation
' Respondent abandoned at the hearing its claim that certain strikers
were denied reinstatement because of strike misconduct
N it appears from a stipulation made at the hearing that Respondent con-
tends that employees Fred Gonzalez and Ann Molinaro were discharged
for cause As Respondent submitted no evidence to support this conten-
contributed resulted in the strike of January 31,
1965, and that this strike must therefore be found to
have been caused and prolonged by Respondent's
unfair labor practices.
In that connection we note, moreover, that at the
union meeting on January 30, McCall informed the
employees of the Union's request for, and Respond-
ent's refusal to furnish, financial data. Moreover,
the record shows that Respondent, both through
letters and a speech, made its employees aware of
its claim of inability to pay the wage increases and
other benefits requested by the Union. It thus ap-
pears clear, and we find, that the employees fully
understood at the union meeting, not only that the
Union's request for the financial data was related to
Respondent's claim of inability to pay, but that
Respondent's refusal to furnish the information was
tied to the stalemate in the negotiations at the bar-
gaining session held on January 28 or 29, when the
only major issue separating the parties was wages,
a disagreement which resulted in the strike vote.
As unfair labor practice strikers, the striking em-
ployees were entitled to immediate and full rein-
statement to their prestrike jobs and shifts when the
Union on their behalf made an unconditional appli-
cation for reinstatement. To fulfill its duty to these
employees, Respondent was required to discharge,
if necessary, any employees hired as replacements
during the strike. It follows that Respondent, by
failing and refusing to reinstate the strikers im-
mediately to their former jobs and shifts, violated
Section 8(a)(3) and (1).' As to the strikers who were
reinstated but subsequently laid off,8 the record
shows that their layoffs were directly attributable to
Respondent's failure, at the time it reinstated
strikers, to discharge employees hired as replace-
ments during the strike.9 We find, therefore, that
Respondent also violated Section 8(a)(3) and (1) by
laying off these employees.
THE REMEDY
Having found that the Respondent has engaged
in certain unfair labor practices, we shall order it to
tion, we find that these employees were laid off for the same reason as the
other employees included in this group
Y It appears from the record that Respondent did have an increase in
business during the strike, and hired , over and above the 168 employees
needed to replace the strikers, some additional employees which in-
creased its payroll, including the 44 nonstrikers, to approximately 240 or
250 employees With the return of a substantial number of the stokers, its
payroll swelled to about 350 employees However, Respondent in-
troduced no evidence to support its contention that the subsequent layoff
was caused by a decline in business Indeed, the record shows that the
parent company ordered Respondent to effect a layoff only after a maJon-
ty of the strikers were returned to work , which increased the work force,
according to Burger 's testimony , "by 100 to 105 people more than what it
normally would be at that time " Thus , it becomes abundantly clear that
the layoff resulted from the existence of a labor surplus created by
Respondent 's own failure to discharge strike replacements as the sinkers
returned to work
STANLEY BUILDING SPECIALTIES CO. 987
cease and desist therefrom and take certain affirma-
tive action to effectuate the policies of the Act.
Having also found that the striking employees
were unfair labor practice strikers, we shall order
the Respondent to reinstate, or offer immediate and
full reinstatement to, all of the striking employees
to their prestrike or substantially equivalent jobs
and shifts with all of the rights and benefits they
would have accumulated but for the discrimination
against them, discharging, if necessary, any strike
replacements. The Respondent shall also be
required to make whole all striking employees, in-
cluding those adverted to above who were laid off
after reinstatement and those who were either not'
offered reinstatement or reinstated tardily, for any
losses they may have suffered, both as a result of
their layoff and/or as a result of the Company's
failure to reinstate them within a reasonable period
after the Union's unconditional application for rein-
statement on March 30, 1965. The record does not
clearly show which employees were reinstated to
different jobs and shifts or those employees who
may have been refused reinstatement, and the dates
on which some of the employees were offered tardy
reinstatement. In view of the ambiguous or in-
complete state of the record in this regard, we be-
lieve it advisable that such matters be deferred to
the compliance stage of this proceeding.
Any backpay due will be determined in ac-
cordance with the formula set forth in F. W. Wool-
worth Co., 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act, and at all times
material herein has been the exclusive bargaining
representative of Respondent's employees in the
appropriate unit.
3. All production and maintenance employees at
the Employer's North Miami, Florida, plant, in-
cluding intraplant drivers, but excluding shop en-
gineers, truckdrivers, technicians, sales personnel,
office clerical employees, guards, and supervisors
as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
4. By refusing to bargain collectively in good
faith with the Union, the Respondent has violated
Section 8(a)(5) and (1) of the Act.
5. The strike which began on January 31, 1965,
was caused and prolonged by the Company's unfair
labor practices, and was, therefore, an unfair labor
practice strike.
6. By failing to reinstate certain unfair labor
practice strikers, and improperly delaying the rein-
statement of others, after an, unconditional applica-
tion by the Union, Respondent violated Section
8(a)(3) and (1) of the Act.
7. By failing to reinstate certain unfair labor
practice strikers to their prestrike or substantially
equivalent positions and shifts, Respondent vio--
lated Section 8(a)(3) and (1) of the Act.
8. By subsequently laying off unfair labor prac-
tice strikers, Respondent violated Section 8(a)(3)
and (1) of the Act.
9. The unfair labor practices enumerated above
are unfair labor practices affecting commerce
within the meaning of Section 2(6) and (7) of the
10. Respondent has not violated the Act in
respects not found herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Stanley Building Specialties Co., a subsidiary
of The Stanley Works, Miami, Florida, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Failing to furnish information requested by
the Union to substantiate the Respondent's claim
of inability to pay the wage increases and other
benefits requested by the Union.
(b) Discouraging membership in United Steel-
workers of America, AFL-CIO, Local 5571, or in
any other labor organization, by discriminating
against strikers in regard to hire or tenure of em-
ployment or any term or condition of employment.
(c) In any other manner interfering with,
restraining, or coercing its employees in the exer-
cise- of the right of self-organization, to form labor
organizations, to join or assist United Steelworkers
of America, AFL-CIO, Local 5571, or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage
in concerted activities for the purpose of collective
bargaining or other mutual aid or protection or to
refrain from any or all such activities.
2. Take the following affirmative action which
is necessary to effectuate the policies of the Act:
(a) Furnish the Union, on request and within a
reasonable time, that information sought by the
Union relating to the Company's claim of inability
to pay the wage increases and other benefits
requested by the Union.
(b) Offer all the strikers, including those who
were reinstated but subsequently laid off, full and
immediate reinstatement to their prestrike or sub-
stantially equivalent jobs with all the rights and
benefits they would have accumulated but for the
discrimination against them, discharging, if neces-
sary, any replacements hired during the strike.
(c) Make whole all the striking employees, in the
manner set forth in the section herein entitled "The
Remedy," for any loss of pay and benefits each may
have suffered by reason of the Respondent's refusal
988 DECISIONS OF NATIONAL
or delay in offering them reinstatement, or by
reason of their subsequent layoffs.
(d) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security pay-
ment records, timecards, personnel records and re-
ports, and all other records necessary to analyze the
amounts of backpay and other benefits due under
the terms of this Order.
(e) Notify any of the striking employees, if
presently serving in the Armed Forces of the
United States, of their right to full reinstatement,
upon application, in accordance with the Selective
Service Act and the Universal Military Training, as
amended, after discharge from the Armed Forces.
(f) Post at its plant in North Miami, Florida, co-
pies of the attached notice marked "Appendix."10
Copies of said notice, on forms provided by the Re-
gional Director for Region 12, after being duly
signed by the Respondent's representative, shall be
posted by the Respondent immediately upon
receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, in-
cluding 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.
(g) Notify the Regional Director for Region 12,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
10 In the event that this Order is enforced by a decree of a United States
Court of Appeals, there shall be substituted for the words, "a Decision
and Order" the words "a Decree of the United States Court of Appeals,
Enforcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended , we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively
with United Steelworkers of America,
AFL-CIO, Local 5571, by refusing, upon
request , to furnish that information requested
by the Union relating to our claim of inability
to pay wage increases and other benefits
requested by the Union.
WE WILL NOT discourage membership in
United Steelworkers of America, AFL-CIO,
Local 5571, or in any other labor organization,
by discriminating in any manner against em-
ployees because they strike or engage in any
activity protected by the National Labor Rela-
tions Act.
LABOR RELATIONS BOARD
WE WILL NOT interfere with, restrain, or
coerce our employees in the exercise of their
rights under the Act or in any other manner
deny them such rights.
WE WILL furnish the Union, upon request
and within a reasonable time, that information
requested by the Union relating to our claim of
inability to pay wage increases and other
benefits requested by the Union.
WE WILL offer each striker, not previously
reinstated to his prestrike job and shift or who
was reinstated but subsequently laid off, full
and immediate reinstatement to his prestrike
job and shift or to a substantially equivalent job
and shift with all seniority and other benefits he
had accumulated before the strike and which
he would have accumulated had he been rein-
stated upon the unconditional application of
the Union, and WE WILL make them whole for
any loss they may have suffered as a result of
the discrimination against them.
Dated By
STANLEY BUILDING SPE-
CIALTIES CO. A SUBSIDIA-
RY OF THE STANLEY
WORKS
(Employer)
(Representative ) (Title)
Note: We will notify any employees, if presently
serving in the Armed Forces of the United States,
of their right to full reinstatement , upon application,
in accordance with the Selective Service Act and
the Universal Military Training and Service Act, as
amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecu-
tive 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, 706 Federal Office Building , 500 Zack
Street, Tampa, Florida 33602, Telephone
228-7711, Ext. 257.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
MAx ROSENBERG, Trial Examiner: This proceeding,
with all parties represented, was heard in Miami, Florida,
between September 29 and October 1, 1965, on an
STANLEY BUILDING SPECIALTIES CO. 989
amended complaint' of the General Counsel of the Na-
tional Labor Relations Board and an amended answer of
Stanley Building Specialties Co., herein called the
Respondent,2 a subsidiary of The Stanley Works. The is-
sues posed are whether Respondent violated Section
8(a)(5), (3), and (1) of the National Labor Relations Act,
as amended, by certain acts and conduct to be detailed
hereinafter. At the conclusion of the hearing, the parties
waived oral argument. Briefs have been filed by the
General Counsel, the Respondent, and United Steel-
workers of America, AFL-CIO, Local 5571, herein
called the Union, which have been duly considered.
Upon the entire record in this proceeding and my ob-
servation of the witnesses, including their demeanor
while on the stand, I hereby make the following:
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS
The Stanley Works, a Connecticut corporation with
home offices located in New Britain, Connecticut,
operates plants throughout the United States, Canada,
and Europe. Respondent, Stanley Building Specialties
Co., is a division of The Stanley Works and is licensed to
do business in the State of Florida where it engages in the
manufacture, sale, and distribution of window and win-
dow products at a plant located in North Miami, Florida.
During the annual period material herein, Respondent
purchased and received goods, supplies and materials
valued in excess of $50,000 directly from points located
outside the State of Florida. The complaint alleges, the
answer admits, and I find that Respondent is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
so by the Union; (b) by unilaterally changing existing
conditions of employment through'the provision of free
food and beverages to nonstriking employees during the
early stages of a strike which the Union called on January
31, 1965, a strike which the General Counsel claims was
provoked by Respondent's unlawful refusal to produce
the financial data requested and hence was an unfair labor
practice strike at its inception; and, (c) by asserting that
it would not negotiate with the Union unless and until the
latter withdrew the unfair labor practices which it filed
with the Board. The General Counsel also contends that
Respondent violated Section 8(a)(3) of the Act by (a) fail-
ing to reinstate certain strikers upon their unconditional
application for reinstatement; (b) failing to reinstate cer-
tain strikers within a reasonable period of time following
their unconditional abandonment of the work stoppage;
(c) laying off certain strikers who had been reinstated
after their participation in the work stoppage while, at the
time of the layoff, Respondent continued to employ strike
replacements; and, (d) assigning returning strikers to
positions and shifts different from those to which they
were assigned prior to the strike. With respect to these al-
leged violations of Section 8(a)(3), the General Counsel
concedes that the complaint as to them must fall in the
event I were to find that the strike which began on
January 31, 1965, was economic in nature, because all the
strikers had been permanently replaced prior to their un-
conditional offer to return to work, because he had no in-
dependent evidence to proffer in support of his conten-
tion that the returning strikers had received disparate
treatment at the hands of Respondent, and, because
Respondent had engaged in no conduct following the
commencement of the strike which converted the work
stoppage into an unfair labor practice strike. The Re-
spondent generally denies the commission of unfair labor
practices.
H. THE LABOR ORGANIZATION INVOLVED
United Steelworkers of America, AFL-CIO, Local
5571, is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Contentions
The General Counsel contends that Respondent
refused to bargain with the Union in violation of Section
8(a)(5) of the Act by (a) taking the position during collec-
tive-bargaining negotiations that it was financially unable
to grant any wage increases, and by refusing to furnish
financial data to support this position when pressed to do
i The amended complaint, which issued on August 13, 1965, is based
on charges and amended charges in Cases 12-CA-3148 and 12-CA-3201
(1-2) which were filed on February 9, 1965, February 18, 1965, April 6,
1965, June 4, 1965, and June 17, 1965, respectively.
At the time of the hearing, a charge in Case 12-CA-3343 involving the
same parties herein, which was filed on September 23, 1965 (and sub-
sequently amended on October 22, 1965) was under investigation by the
Board's Regional Director for Region 12. On November 8, 1965, the
General Counsel filed a motion with me to consolidate Case 12-CA-3343
with Cases 12-CA-3148 and 12-CA-3201 (1-2) and to amend the con-
solidated complaint accordingly Appended to the motion is a stipulation
by and between the parties that the aforementioned cases be consolidated
and that the consolidated complaint be amended by adding the name of
Julio Alzurri to paragraph 13 (a) thereof, and by adding the name of Mil-
B. The Evidence
In July 1957, the Union was certified by the Board as
the collective-bargaining representative of Respondent's
employees at its North Miami, Florida, plant.3 William C.
McCall, the Union's staff representative and chief
negotiator, testified that he had represented his labor or-
ganization in collective-bargaining negotiations with
Respondent for many years which culminated in labor
contracts in 1961, 1962, and 1963, the last of which was
due to expire on January 30, 1965. According to McCall,
the first meeting between the parties concerning negotia-
tions on the latter contract was held on October 19, 1964.
McCall represented the Union and Robert F. Burger,
Respondent's plant manager, appeared on behalf of the
dred Boeger and the date of April 23, 1965 to indicate the date of Boeger's
layoff and/or termination to paragraph 13 (d) of the complaint. The motion
is hereby granted and the stipulation is received.
2 During the course of the hearing, I granted the General Counsel's
unopposed motion to amend paragraph 13 (a) of the complaint by adding
the name of Hilda Hungerbuhler thereto, and to amend paragraph 13 (d)
to correct the spelling of the name of Shirley Joyner.
2 The parties stipulated that the current contractual unit of "all produc-
tion and maintenance employees at the Employer's North Miami, Florida,
plant , including intraplant drivers, but excluding shop engineers,
truckdnvers, technicians , sales personnel, office clerical employees,
guards , and supervisors" constitutes an appropriate unit for the purposes
of collective bargaining.
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company. At this meeting, McCall verbally proposed ap-
proximately 12 changes in the existing agreement cover-
ing a broad range of topics such as changes in grievance
procedures, vacation plans, severance pay, cost-of-living
increases, bereavement pay, overtime for Saturday work,
jury duty pay, the posting of seniority lists, job evalua-
tions, safety conditions, and the production of Respond-
ent's pension plan. Burger volunterred that he believed
the current hospitalization rate was too low and that it
should be revised upwards. In his testimony, McCall con-
ceded that wages were not mentioned or discussed at this
meeting.
The next session was convened on December 8, 1964.
McCall again advanced his previous proposals, but also
submitted additional proposals relating to the inclusion of
all truckdrivers in the unit, an increase in hospitalization
benefits, the distribution of overtime by departments, and
the payment of higher wage rates to employees who had
accumulated 2 days' experience in jobs calling for such
rates. Despite the fact, as McCall testified, that wages
concededly had not entered into the discussion at this
juncture, and that Respondent had not raised any plea of
inability to pay higher wages or any other economic
benefits, McCall asked Burger "for the financial state-
ment of the company." When questioned as to why he
had made this demand at this point in negotiations, Mc-
Call replied that "with this company I had met with them
on several occasions in the past and found that they had
always contended in the past that they had been in the
red," although there is nothing in this record to indicate
that McCall had ever previously demanded financial
verification of Respondent's economic position. McCall
then amplified this response by stating that, during a
grievance meeting in November 1963, with Respondent's
former plant manager, Robert Arnold, Arnold remarked
that Respondent "had gotten in the black" for the first
time. According to McCall, this intelligence prompted
him to request a financial statement from Respondent at
the meeting on December 8, 1964, because "It is pretty
hard to propose anything to a company if you don't know
the financial status of that company." However, McCall
testified that nothing more was said of the financial state-
ment at that time, and the discussions thereupon drifted
to the Union's engagement in collective-bargaining
negotiations with Air Control Products, a competitor of
Respondent's in the North Miami area. McCall com-
mented to Burger that similar contract proposals had
been presented to both Respondent and Air Control
Products. McCall testified that Burger then stated that,
after the Union had obtained a contract from this com-
petitor, the Union should present it to Burger and the
Respondent would match those contractual benefits,
although McCall admitted that wage rates were not men-
tioned or included in Burger's statement.
On December 10, 1964, McCall dispatched a letter to
J. C. Farley, Respondent's general manager , in which the
former called attention to a letter dated November 23,
1964, which Farley had sent to the employees. McCall
noted Farley's remarks that, while sales had increased
substantially, earnings had not escalated proportionately.
McCall remarked that "as we are entering into negotia-
tions with your Company toward a new collective bar-
gaining agreement on wages, hours of work, insurance
and pensions, and other conditions of employment, the
Union is requesting your Company to furnish the follow-
ing information so that we may be able to make a realistic
approach to the joint problems." The letter requested (1)
"financial statements" for the past 5 years including
1964; (2) the cost of the pension plan at the plant; (3) the
number of persons receiving benefits and the amount of
the benefits paid to former employees covered by the
pension plan at the installation; (4) the cost of the in-
surance plan now in effect, and additional costs of any
proposed plan; and (5) a complete copy of the job evalua-
tion plan in effect , including all material pertinent to the
plan.
Burger replied to McCall by letter dated January 6,
1965. Attached to this letter was a copy of the con-
solidated financial reports of the parent Stanley Works of
New Britain, Connecticut, for the years 1959 through
1963, and a list of Respondent's employees who had
received benefits under the pension plan. With respect to
the cost of the pension plan covering Respondent 's plant,
Burger wrote that such a breakdown was impossible
because "our Pension Plan is companywide and funded
through investments in insurance." Burger also stated
that "The cost of the insurance plan now in effect is also
difficult to give you on an individual or plant-wide basis.
However, in our discussions I will be happy to go over
a new proposal with you that I have additional informa-
tion on." Regarding McCall's request for the job evalua-
tion plan, Burger recited that "I believe that you have
agreed that you do have a copy of all our job evaluations
and descriptions which are now in effect in this plant."
Burger's letter ended with a request that another early
bargaining session be scheduled "so that we can bring our
negotiations to a close for the coming years."
Upon receipt of Burger's letter, McCall telephoned him
on January 7 of 8, 1965, to say that McCall had received
"the financial statement and the pension plan of the com-
pany, but that that was not what I was asking for. That I
was actually asking for the financial breakdown of
[Respondent], and not the overall company." According
to McCall's testimony , Burger replied that "it was not
available and not the company's [The Stanley Works]
policy to make it available." Again, it is clear on this
record, as McCall admitted, that neither he nor Burger
had embarked upon any discussion as to wages at this
time, and that Respondent had interposed no plea of
poverty to any economic demands of the Union's.
The next negotiations were conducted on January 14,
1965. This was the first occasion on which the Union
presented any written contract proposals to Respondent,
and the parties proceeded to discuss them item by item.
McCall testified that Burger would not agree to the
Union's proposals to include all truckdrivers in the unit
nor would he agree to an Agency Shop provision. How-
ever, Burger consented to the Union's proposed time
limitation on the processing of grievances. With respect
to wage and overtime rates, cost-of-living adjustments,
bereavement pay, safety provisions, severance al-
lowances, and military service provisions, the parties de-
cided to defer these matters for later consideration. How-
ever, Burger acceded to the Union's request that Re-
spondent furnish the Union with a seniority list every 4
months and a copy of the pension plan, and he volun-
teered to increase the hospitalization rates to $16 per day.
Once more, wages were not brought into the negotiations
and at no time during this meeting did Respondent plead
poverty. In fact, the Union's written proposals did not
contain any specific wage demands.
STANLEY BUILDING SPECIALTIES CO. 991
The parties met again on January 19, at which time
Respondent advanced its proposals. Respondent agreed
to the Union's request for a time limitation on the adjust-
ment of grievances, agreed to provide an additional, paid
bereavement day, agreed to furnish the Union with a
seniority list every 4 months, agreed to increase further
the hospitalization rate to $18 per day, and agreed to cer-
tain hiring rates and subsequent rate reclassifications.
Respondent also proposed its vacation plan which would
provide 2-1/2 weeks' vacation after 10 years of service
and 3 weeks after 15 years of service. Finally, and
without any prior wage demand by the Union, Burger
proposed a 2-percent wage increase for all employees, ef-
fective January 31, 1966. McCall testified that he
proceeded to read through Burger's proposals, and when
he reached the section setting forth the wage increase he
remarked to Burger that the latter "ought to be ashamed
of himself to propose something like that to these peo-
ple." Burger and his associates then withdrew from the
room to caucus. When he returned, he produced a list of
the wages which Respondent was then paying to the vari-
ous classifications and, according to McCall's candid
testimony, McCall "pointed out that they were fairly
decent wages for this area." At this juncture, McCall ob-
served a banner bearing The Stanley Works' trademark
in black and gold suspended from the wall, and he re-
marked to Burger that "all I can see hanging from the sign
is dollar bills." According to McCall, Burger replied that
"the company as a whole is making money but we are not
making money in this division, that we have to stand on
our own down here and if we can't make it here,one of
these days they will be closing the doors, because we
have been losing money long enough." Shortly before the
meeting broke up, due to an equipment failure in the
plant, McCall testified that he asked Burger to produce a
"financial statement to support his position and he
[Burger] said that he had discussed this with somebody
in the New Britain office and that they had told him that
it wasn't the policy of the company to make it available
and that they didn't make it available to other unions."
On cross-examination, McCall was questioned as to
whether Burger, at the meeting on January 19, had
stated that Respondent was paying 30 to 50 cents
per hour more than most competitors in the area,
such as Air Control Products, and that it would make it
difficult for Respondent to remain competitive with those
other companies if it granted higher wage increases. At
the outset, McCall replied, "I think Mr. Burger men-
tioned that about the other companies in the area...."
When queried as to whether Burger stated that to ad-
vance more than a 2-percent increase would destroy its
competitive position, McCall then answered, "I don't re-
call that statement, no, he didn't." When pressed on the
matter, McCall replied, "Well, I have heard that from
Stanley at many, many meetings and to say definitely that
that happened at any particular meeting I couldn't
truthfully say because as I say I have heard it from that
company so many times that I couldn't say just when it
was exactly." McCall then backtracked and steadfastly
insisted that no such claims had been made by Burger
during "the last series of negotiation sessions," stating
that, instead, Burger proclaimed the Respondent could
not afford "any" wage increases either at the January 14
or 19 meeting, despite the fact that the wage topic had not
arisen on January 14 and the fact that Respondent ac-
tually advanced a 2-percent wage proposal on January
19. Finally, McCall admitted that "there was a discussion
about Air Control in several meetings because we were
negotiating with Air Control at the same time."
The next bargaining session was held on January 27 or
28, 1965, 2 days before the expiration date of the existing
agreement. McCall testified that he commended the
parties to revert to the Union's original proposals and
discuss each item seriatim. There is not the slightest sug-
gestion in McCall's testimony that, at this point, he
requested any financial statements of Respondent in
order to controvert any contention by Respondent that it
was unable to meet any union wage demand At the out-
set, the discussion dwelt on the Union's proposal that an
employee who had gained 2 day's experience on a given
job should be awarded a higher rate in the event he was
permanently assigned to that classification, and the
Respondent acquiesced in this proposal. Bargaining
turned to the Union's request for a cost-of-living adjust-
ment in the contract. According to McCall, Respondent
"stated as they had stated earlier that they could not af-
ford at this point to come up with that," in consequence
of which McCall withdrew this proposal without ever
asking Burger to substantiate his inability to pay. With
respect to the Union's military pay and jury duty
proposals, McCall was content with Burger's reasons for
rejecting these items and they were withdrawn from the
bargaining table. Next, Respondent maintained its posi-
tion regarding vacation allowances. Finally, and for the
first time during negotiations, McCall proposed that
Respondent grant a 10-cent-per-hour wage increase, ef-
fective January 30, 1965, and a similar increase on Janu-
ary 30, 1966. McCall testified that Burger then remarked,
"it's not there, we can't meet it, we just can't come up
with it." Whereupon, McCall and his negotiating commit-
tee withdrew from the room to discuss the matter and
returned with a proposed increase of 8 cents per hour in
1965 and 7 cents in 1966, in addition to two more paid
holidays, an enlarged vacation plan, and 6 sick-leave
days. According to McCall, Burger again responded, "it
just isn't there, we just can't pay it," as a result of which
McCall requested Respondent's financial statement to
verify its position. Burger replied, "you got my answer on
that before." So far as appears, McCall did not further
press for this information and the meeting ended.
Another meeting was held the following day, either
January 28 or 29. The parties once more reviewed the
Union's proposals and Burger volunteered to convert
Respondent's 2-percent increase into a 4-cent-per-hour
increase. McCall expressed the belief that this
represented no appreciable change in Respondent's earli-
er proposal. However, Respondent's proposed increase
in bereavement pay, hospitalization rates, and Saturday
overtime rates were accepted by the Union, as were other
proposals dealing with noneconomic matters. At the con-
clusion of this bargaining session, McCall informed
Burger that "inasmuch as this looks like we are not in
agreement nor are we going to be in agreement, that
probably these people would go out on strike." Burger
asked what McCall would recommend to his members,
and the latter replied that he would "probably have to
recommend to them to start a parade around the plant"
because Respondent's offer of 4 cents was "not enough."
No request was made by McCall during this meeting for
the production of Respondent's financial data.
Following this last meeting, McCall contacted the
Federal Mediation and Conciliation Service and a session
was scheduled for February 3, 1965. In the meantime, on
January 30, McCall met with 136 employees in the unit
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to review the progress of negotiations and discuss a future
course of action. McCall testified that he discussed the
proposals and counterproposals with them, and added
that "I informed the people that we had asked the com-
pany for the financial statements up to this point and that
they had refused to give them to us, and that this
memorandum of agreement [Respondent's contract
proposals] that they were proposing was all that they
were proposing to the people and so I read it to them item
by item and answered and discussed any questions they
had with them, and then someone in the Local Union
there after all of the discussion and the questions and an-
swers were given, made a motion to have a secret ballot
on the proposal. . . ." A vote was taken but, because of
some unexplained irregularity, another ballot ensued.
When questioned as to the issue voted upon, McCall ini-
tially replied, "On the proposal of the memorandum
agreement that the company had prposed to us and fol-
lowing the discussion and that they had not given us their
financial data at this point after our request." McCall then
related that he explained each proposed item to the as-
sembled employees, noting that "I explained to them that
in casting a ballot that first if they wanted to go on a
straight proposal to put yes on their ballot and if they
wanted to reject the proposal to put no on their ballot."
According to McCall, he made it clear that if the em-
ployees rejected Respondent's contract proposals a strike
would follow, although it does not appear from his
testimony that the strike vote related to Respondent's
refusal to produce any specific, indentifiable wage data.
Thereupon, the employees voted to reject Respondent's
proposals by a teller count of 71 to 65 and, on January 31,
1965, the strike commenced. When questioned as to
whether the meeting of January 30 was the only one at
which he informed the employees that the Respondent
had failed and refused to submit financial data to support
its plea of inability to meet the Union's wage demands,
McCall was quick to respond, "no; no; no. I had meetings
with these people where I explained almost every move
that was made and explained to these people in every
meeting that I was continually asking the company for the
financial statements and that the company just kept refus-
ing to give them to us. I, in fact, had had a meeting with
the people on the night of January 27 where I had also ex-
plained to them the same thing." This statement is indeed
curious in view of the fact that no discussion of wage
rates had occurred until January 19, when Burger volun-
teered a wage figure, and no concrete wage proposal had
yet been broached by McCall until January 27 or 28.
Moreover, McCall testified that, if Respondent had
turned over its financial records to the Union and these
had demonstrated that Respondent could have afforded
more money but that Respondent would not offer more
than its proposed 4-cent increase, McCall would
nevertheless have advanced this proposal to the em-
ployees and if they accepted it they would "have a con-
tract."
Burger's account of the events leading to the strike is as
follows. Burger testified that it was customary for the
plant manager to conduct negotiations on behalf of
Respondent with the Union, but that final approval of any
collective-bargaining agreement must come from the
Director of Industrial Relations of The Stanley Works in
New Britain, Connecticut, and that McCall was aware of
this circumstance "for as long as he had dealt with the
Stanley Works." As early as the spring of 1964, Burger
urged McCall to formulate contract proposals in advance
of the January 30, 1965, expiration date of the agreement
in order to resolve any potential issues which might
evolve, inasmuch as Burger had embarked upon his
maiden voyage as plant manager in January 1964. This
suggestion was reiterated to McCall at the first formal
bargaining session on October 19, 1964, at which
noneconomic issues were preliminarily explored. At the
meeting of December 8, 1964, both economic and
noneconomic topics, including increased hospitalization
and vacation benefits, were perfunctorily discussed and
the parties exchanged ideas on these matters, but no men-
tion was made of any wage demands by the Union.
Burger recalled that, as early as December 1964, before
wages or any other economic benefits were put in issue,
McCall requested that Burger supply a copy of Respond-
ent's pension plan and some financial statements for the
last 5 years, as well as two or three other items, all of
which information Burger procured for McCall early in
January 1965 from the New Britain office. The first
discussion concerning wages took place at a January
meeting which, according to McCall's testimony, obvi-
ously occurred on January 19, when Respondent offered
a 2-percent increase effective February 1, 1966. McCall
countered with a wage proposal of 10 cents per hour on
February 1, 1965, and 8 cents on February 1, 1966, in
addition to several other items. Burger testified that he in-
formed McCall that the latter "was a little off base asking
for that much money. I said that we were already paying
$.30 to $.50 more than our competitors here in the market
and I thought he [McCall] would be better off first to
bring our competitors up to what we were paying before
he asked us for any more money." In response, McCall
stated that he saw The Stanley Works' emblem on the
wall and that "it means dollars to me" and that "we will
take everything we can get or you have there except that
[we] wanted more." Burger then remarked that "if we
gave any more, at this time, that I didn't see how we could
remain competitive and that we felt as though we weren't
refusing to give and that we could offer something and
that is what we were offering." Burger repreated in his
testimony that at no time during contract negotiations did
he ever refuse to discuss the subject of wage increases
with McCall or indicate that Respondent was unable to
afford "any" wage increases or to grant any increases
over and above those proferred by Respondent. In
Burger's words, "I think that at every bargaining session
we ever had we always left it open and were willing
to meet with him and discuss anything he wanted to
discuss. . . .
Burger's testimony is without contradiction that, on the
two or three occasions when McCall asked for financial
statements, and after Burger had furnished McCall with
The Stanley Works' financial reports, Burger pointed out
that these reports were the only documents regarding
Respondent's financial position which he had ever seen
during his tenure as plant manager, and McCall did not
press further on this matter. Burger explained that, under
the accounting procedures maintained by The Stanley
Works, the only material which he collected concerned
Respondent's manufacturing costs and these were trans-
mitted to the New Britain office where they were in-
cluded in one consolidated financial statement. Accord-
ing to Burger, McCall' s main concern related to whether
Respondent had made a profit "so he [McCall] would
know how much money to ask for." During the entire
course of his relations with McCall, Burger frankly in-
STANLEY BUILDING SPECIALTIES CO. 993
formed McCall whenever the former had been told by his
superiors that the company was operating in the black. In
Burger's words, "I don't think that I ever denied that we
made money at any of the meetings or at any time it came
up and I think that Mr. McCall recalls and Mr. Farley the
General Manger down there and all through the negotia-
tions that he ever had with the company that the company
informed him as to whether we were making money or
weren 't making money." Burger went on to relate that "I
don't think anybody tried to hoodwink him [McCall] as
to whether we were or weren' t [making money], but in
the ten years that Stanley had the plant down there, there
has only been two years that they did show a profit for the
investment that they had down there and prior to that
time they [the employees] were given substantial
amounts of money in hourly increases even though the
company wasn't showing a profit in this division, and the
reason for that was it was Mr. Farley's philosophy that
the wages down here were too low and he wanted to make
sure that the people did have more money than what our
competitors offered and paid, but it had just gotten to the
point where we are about $.30 to $.50 higher than what
our competitors were paying."4 Burger 's testimony is un-
denied that, when he indicated to McCall that Respond-
ent's wage differential was so great and that Respondent
could not remain competitive if McCall's rather than
Burger's wage proposals, became effective, McCall
replied that "lie simply ... didn't care about all of that,
and that the only thing he was interested in was this unit
and the Stanley dollars, and that he wanted some of those
Stanley dollars he saw in the financial statement ." Burger
acknowledged that he did not undertake any detailed sur-
vey of the wages which his competitors paid, stating that
he had learned of the wage differentials at trade associa-
tion meetings at which the competitors revealed their
wage rates. Burger further testified without contradiction
that he brought this fact to McCall's attention throughout
the negotiations and at no time did McCall challenge or
controvert Burger's assertions concerning the wage dif-
ferential, and McCall never demanded Respondent's
financial data to substantiate these assertions. Moreover,
Burger's testimony is uncontroverted that McCall had
never, requested with any degree of specificity what finan-
cial data the latter sought, and never solicited any infor-
mation concerning Respondent 's costs. Finally, McCall
in no way indicated during negotiations that the Union
would precipitate a strike in the event Respondent failed
to furnish financial information, and at no time after the
strike commenced did McCall assign Respondent's
failure in this regard as a reason for the work stoppage.
According to Burger, "The only thing he [McCall] said
about calling a strike was unless we come up with more
than what we had already offered, that he was going to
call a strike." Burger testified that "We stood firm on
what we offered to him."
When the strike began on January 30, 1965, 212 em-
ployees encompassed in the bargaining unit were at
work.5 By stipulation of the parties, it appears that ap-
proximately 168 employees walked off the job during the
first few days of the work stoppage.
It is Burger's undenied testimony, a fact which the
General Counsel concedes, and a finding which I hereby
make, that all of the strikers were permanently replaced
on or about February 14, 1965.
At this juncture, it might be appropriate to digress for
the sake of chronology in order to portray the facts as
they appear against the backdrop of the allegations in the
General Counsel's complaint. It is undisputed and I find
that, prior to the work stoppage, Respondent uti! *zed the
services of an organization known as Tasty Catering Ser-
vice to supply food and beverages to its employees for
breakfast and lunch. This operation apparently consisted
of a canteen truck service from which the employees
purchased their needs from a truck which drew up to the
plant. When the strike began, Tasty's employees refused
to cross the Union's picket line with the result that some
48 nonstriking employees went without food. Upon learn-
ing of this circumstance, Burger contacted a caterer
which trades under the name of Wolfies Catering Service
to provide the necessary services. This caterer reported
that his canteen truckdrivers might also be reluctant to
cross the picket line, but, at Burger's urging, he agreed to
transport sandwiches and coffee to the plant in his private
automobile on an interim basis. This was done during the
period from February 1 through February 8, 1965.
Because these food products were not broken down in-
dividually as to price, and because Burger was unable to
determine the manner in which to assess the employees
for the food which they selected, Respondent decided to
pick up the tab in the sum of $586.30. On and after
February 8, Wolfies Catering Service dispatched its can-
teen trucks to Respondent's premises and sold its
products directly to the employees in the same manner as
Tasty had previously done. It is undisputed that Re-
spondent did not notify the Union regarding the fore-
going action.
As indicated heretofore, McCall contacted the Federal
Mediation and Conciliation Service following the bar-
gaining session on January 28 or 29, and a conciliation
meeting was scheduled for February 3. A representative
of the service named MacAllister met first with the Union
in an effort to arrive at a concrete and realistic contract
proposal. According to McCall's testimony, the union
representatives "kicked it around for a long time, and
finally we come out with the proposal that we felt might
settle it and one of them was a proposal as to wages." The
Union thereupon proposed a 5-cent wage increase im-
mediately and a 4-cent increase in 1966, in addition to
another paid holiday, an enlarged vacation plan, as well
as a sick leave plan. MacAllister conveyed these
proposals to Burger and the latter replied, "It's not there,
and have you got any further suggestions?" The parties
were then assembled by MacAllister and Burger ex-
plained "that the money wasn't there, that they couldn't
meet it, at this time, and that probably next year
[Respondent] would be able to meet it." McCall re-
4 Burger testified without contradiction that he informed McCall at the Of the 246, a total of 164 had executed checkoff cards, but 16 of these
various bargaining sessions that Burger had learned from the New Britain were either on leave or in layoff status, leaving a total of 148 employees
office that Respondent had made a small profit in 1963 and a lesser one in who had executed checkoff cards and were employed when the strike
1964. However, McCall did not press Burger for these profit figures. commenced.
5 Actually, there were 246 employees in the unit on the date of the work
stoppage, of whom 34 were either on leave of absence or in layoff status.
994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
marked to Burger that "we'll give you some relief on this
thing, you can't you say make it this year but possibly
next year, well, give us $.08 effective July of '65 and then
another $.07 in July of 1966 and that will give you the
time to come up with the funds which you say you don't
have right now to meet our proposal." McCall testified
that Burger then made the curious comment that "it
wouldn't make any difference any way, because [Burger]
said you have never offered to take a wage cut in the in
the past when we weren't making money," to which Mc-
Call replied, "you never pressed the issue." The meeting
ended on this note and the Union, for the first time, filed
charges against Respondent on February 9, 1965, alleg-
ing that Respondent had unlawfully refused to bargain
with the Union. However, at no time during the meeting
of February 3 did McCall request that Burger produce
any financial data to substantiate Respondent's asserted
inability to offer higher wage rates.
On February 12, the parties again met with MacAl-
lister of the Mediation and Conciliation Service. McCall
testified that he informed Burger that the Union had been
in negotiations with Respondent's competitor, Air Con-
trol Products, and that it appeared that the Union and this
firm would reach an agreement providing for an hourly
wage increase of 21 cents, an additional paid holiday, and
6 days of paid sick leave. McCall invited Burger to match
these benefits, stating that "we had talked earlier that you
had always hollered about Air Control being a competitor
and that you couldn't afford to meet our proposals
because of them and so we are proposing that you match
the benefits that we are getting out of Air Control, and to
come up with the things that they are giving us " Burger's
response, according to McCall, was to accuse the latter
of "cherry picking" from the Air Control Products' con-
tract. McCall testified that, at this juncture, Burger stated
that he had received the charges which the Union had
filed with the Board on February 9, 1965, "and that he
[Burger] couldn't think clearly with those charges hang-
ing over his head and was asking the union to withdraw
the charges " McCall replied that "we could withdraw the
charges now and refile them at a later date," and a Mr.
Burleson [a representative of Respondent] stated that
Respondent could then refuse to bargain However, Mc-
Call admitted that Burger did not condition future bar-
gaining negotiations upon the withdrawal of the charges
and conceded that the Respondent continued to bargain,
not only after the filing of the charges on February 9, but
also after the filing of subsequent charges In this connec-
tion, it is significant to note that the complaint fails to al-
lege that Respondent generally refused to negotiate dur-
ing any specific period of time MacAllister then
proposed that Respondent reinstate the strikers and ex-
tend the recently expired contract until the Union con-
cluded negotiations with Air Control Products, at which
time Respondent could agree to include the benefits of-
fered by that company in its contract with the Union. Ac-
cording to McCall's testimony, he adopted this sug-
gestion, after which Burger and his associates held a cau-
cus on thi3 proposal. When it was concluded, Burger an-
nounced, "when you lift the charges filed with the Na-
tional Labor Relations Board then we will bargain on the
basis of the United Steelworkers and Stanley " Again,
McCall did not request at this February 12 meeting that
Burger produce any financial data to assist in contract
discussions. Moreover, McCall testimonially conceded
that Respondent had in fact elevated its original wage of-
fers when he stated "there have been so many proposals
made but none in writing, and there were some verbal
propositions proposed that possibly [Respondent] cou!d
do this."
Burger 's testimony concerning the February 12 meet-
ing recites that McCall informed the negotiatiors that an
agreement with Air Control Products was imminent and
that Burger had assured McCall that the former would
"match it." Burger denied that he had given this as-
surance, stating that he had agreed "to go along with a
comparable contract," to which McCall retorted that "the
only thing [McCall] was talking about matching was
money and cherry picking the economic features of it,"
and McCall added that "we want more money and m-o-n-
e-y, that is all we are here for." Burger replied that the
Union had filed unfair labor practice charges against the
Respondent and that Burger could not "think very well
with that hanging over my head," and suggested that Mc-
Call withdraw the charges so that "we can it down and
think about Stanley Building Specialties and the Steel-
workers." McCall then observed that, even if he did drop
the charges, he could refile them at a later date, and
Burger agreed that this was possible. However, it is
Burger's undenied testimony that he did not condition fu-
ture bargaining with the Union upon the withdrawal of
the charges, and that in fact Respondent continued to
meet with the Union on many occasions thereafter. It is
also undenied that, during contract negotiations on
February 12, Burger stated that he could not conceive of
how Respondent could remain competitive if it offered
"any more than we were offering," with Burger stressing
that Respondent's wages were 30 to 50 cents per hour
more than its competitors In this connection, Burger
pointed out that Respondent was constantly attempting
to improve plant facilities in order to make it a better
place in which to work, and reiterated that one of Respon-
dent's contract proposals would considerably increase its
commitment for hospitalization benefits for the em-
ployees.
The next meeting between the parties occurred on
March 8, but no progress was made in settling the dispute
and the strike continued. Once more, there is nothing on
this record to demonstrate that the Union sought any
financial data from Respondent at this meeting or sug-
gested that the production of this material would be a con-
dition to the resolution of the work stoppage. On March
30, McCall sent a letter to Burger in which the former
made an unconditional offer on behalf of the strikers to
return to their former or equivalent positions. Respond-
ent replied by letter dated April 5 that it was willing to
reinstate all strikers with the exception of an enumerated
49 who, as Respondent had indicated in the last negotia-
tion session, had engaged in violence and misconduct dur-
ing the course of the strike 6 Burger testified without con-
tradict!on and the General Counsel has conceded that,
prior to McCall's offer to end the work stoppage, Re-
spondent had permanently replaced all the strikers I have
so found It is also Burger's undenied testimony that
Respondent reemployed approximately 105 strikers a
few days after McCall's request for their reinstatement
e The parties stipulated that some of these individuals were reinstated
or offered reinstatement subsequent to the recall of the other strikers
STANLEY BUILDING SPECIALTIES CO.
With the return of the strikers , Respondent's work
force escalated to a figure of approximately 350 em-
ployees, a complement which Respondent found it neces-
sary to maintain because customer orders had increased
and a second shift had been installed . However , it is un-
denied that Burger was informed by the New Britain of-
fice at the end of April that it was no longer economically
unfeasible to maintain such an enlarged work comple-
ment and that a layoff was dictated . Whereupon , Burger
instructed his foremen to release approximately 42 em-
ployees on May 1 , 1965. In doing so , Burger told his
foremen to select employees for retention on the basis of
their ability to perform their job assignments without re-
gard to whether they were new employees , old em-
ployees, or former strikers. When the layoff was effected,
between 12 and 15 former strikers were released. About
a week later, additional employees were laid off through
the use of similar separation criteria, although it is unclear
on this record whether , and to what extent , additional
strikers were separated by Respondent . In this connec-
tion , it should be noted that the General Counsel has of-
fered no evidence to establish that the selection of
strikers for layoff on and after May I was made on a dis-
criminatory basis.7
Prior to the reduction in force on May 1 , the Respond-
ent recalled a certain number of strikers and assigned
them to shifts other than those which they had previously
worked , although these individuals did not suffer any
reduction in pay. Some of these, however, were reas-
signed to their former shifts upon the Union's protest.
Once again, the General Counsel has presented no
evidence to demonstrate that these assignments were dis-
criminatorily motivated.
It is undisputed and I find that the parties commenced
negotiations on October 19, 1964 , to fashion a collective-
bargaining agreement to replace an existing contract
which was due to expire on January 30, 1965 , and vari-
ous issues were preliminarily explored . Wages were
neither mentioned nor discussed at this session. The next
meeting was held on December 8, 1964 , at which McCall
verbally submitted additional proposals . Based upon Mc-
Call's testimony, I find that he requested that Burger
furnish the "financial statement of the company " at this
time although the Union had concededly made no wage
demands upon Respondent at this juncture . McCall's
request was prompted by the fact that "It is pretty hard to
propose anything to a company if you don 't know the
financial status of that company." Negotiations then
turned to a discussion of the Union's current bargaining
relationship with Air Control Products , Respondent's
competitor in the North Miami area.
It is uncontroverted and I find that, on December 10,
1964 , McCall wrote to J. C. Farley, Respondent's
general manager , and informed the latter that the Union
and the Respondent "are entering into negotiations ...
toward a new collective bargaining agreement on wages,
hours of work , insurance and pensions , and other condi-
tions of employment ." In his letter , McCall requested
that Farley provide financial statements for the past 5
years "so that we may be able to make a realistic ap-
proach to the joint problems." I find that this request by
McCall was not prompted by any wage demand which the
7 The recently expired contract between the parties provided that
"When there is an increase or decrease in the work force, the following
factors shall be considered, and where factors `B' and `C' are relatively
equal, length of continuous service shall govern: a Continuous service. b.
995
Union had made on Respondent and against which the
Respondent interposed a plea of poverty. On January 6,
1965, Burger transmitted to McCall the data which the
former had received from his home office, and I find that,
on January 7 or 8, McCall telephoned Burger to relate
that McCall was interested "in the financial breakdown
of [Respondent], and not the overall company." Burger
replied that these documents were the only statements of
Respondent's financial position which he had ever seen,
and he remarked that it was the policy of The Stanley
Works not to divulge the financial condition of its divi-
sions, although it is undenied and I find that Burger can-
didly informed McCall that Respondent had made a slight
profit in 1963 and a smaller one in 1964. Again, McCall
did not proffer a wage proposal to Burger.
On January 14, 1965, the parties held another bargain-
ing session at which the Union submitted written
proposals. I find, based upon undisputed testimony, that
no wage demands were advanced by the Union at this
meeting, that the proposals did not contain any specific
wage figures, and that McCall did not request that
Respondent expose its financial records or protest that
the financial data which Respondent had already
proferred was inadequate. It is uncontroverted and I find
that, on January 19, 1965, Respondent submitted its
"memorandum of agreement" to the Union which, in ad-
dition to including various economic increases such as
greater hospitalization benefits and additional bereave-
ment pay, also advanced for the first time a 2-percent
wage increase effective in 1966. McCall did not counter-
propose any specific wage demands, and he admitted that
Respondent was paying "fairly decent wages for this
area." I credit Burger's testimony, which is not essen-
tially controverted by McCall, that at this as well as other
bargaining sessions Burger advised McCall that the
Respondent's wages were 30 to 50 cents higher than
those paid by such competitors as Air Control Products,
and that McCall "would be better off first to bring our
competitors up to what we were paying before he asked
us for any more money." It is undenied and I find that
McCall did not challenge Burger's statement with respect
to the wage differential. I also find that Burger informed
McCall during these meetings that Respondent would
"go along with a comparable contract" which the Union
might obtain from Air Control Products but that Burger
would not agree to any "cherry picking" of the economic
features of such contract.
On January 27 or 28, McCall agreed to various
economic proposals which Burger had advanced, and
further agreed to the withdrawal of a cost-of-living adjust-
ment clause when Burger reported that Respondent could
not afford this item, without requesting that Burger sub-
stantiate his inability to pay. Finally, and for the first
time, McCall presented the Union's wage proposal. I find
that Burger again alluded to the wage differential of 30 to
50 cents which Respondent was paying, to which McCall
responded that The Stanley Works' emblem represented
"dollars to me" and "we will take everthing we can get or
you have there except that [we] wanted more," Burger
stated that Respondent could afford a 2-percent increase
at the time and "that is what we were offering." McCall
then requested Respondent's financial data and Burger
Ability to perform the work. c. Physical fitness." However, there is
nothing in the record to indicate whether any of the strikers who were laid
off after May 1, 1965, satisfied the foregoing criteria and that replace-
ments who were retained did not.
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
replied that he had already furnished the only data he had
ever seen and that the parent company would not provide
any additional material. I find that McCall did not press
for this material , and at no time during the ensuing bar-
gaining negotiations did McCall again bring this subject
up.
The parties met once more on January 28 or 29 and
agreement was reached on an increase in hospitalization
benefits , as well as additional bereavement and overtime
pay. Moreover, Respondent agreed to convert its
proposed 2-percent increase into a 4-cent-per-hour in-
crease. The parties would not further recede from their
respective positions, and I find that McCall announced
that "inasmuch as this looks like we are not in agreement
nor are we going to be in agreement , that probably these
people [employees] would go out on strike." When
Burger asked what McCall would recommend to his
members, McCall replied that he would "probably have
to recommend to them to start a parade around the plant"
because Respondent's offer of $.04 was "not enough." I
credit Burger 's undenied testimony that McCall had
never asserted that his members would strike because of
Respondent's refusal to furnish economic information
and that "The only thing [McCall] said about calling a
strike was unless we come up with more than what we
had already offered," to which Burger remarked that "We
stood firm on what we offered to him"
McCall met with the employees on January 30, 1965,
to review the progress of negotiations with them. I find
that McCall informed them that he had requested finan-
cial statements from Respondent but had not been sup-
plied with them. I also find, however, that he explained
each of Respondent's proposals to the employees and
stated that "in casting a ballot that first if they wanted to
go on a straight proposal to put yes on their ballot and if
they wanted to reject the proposal to put no on their bal-
lot." McCall made it clear that if the employees rejected
the proposals a strike would ensue. However, there is
nothing in this record which convincingly demonstrates
that McCall told his members that they should cast their
ballots in favor of a strike because of Respondent's
refusal to produce wage data, or that this refusal in any
fashion was an ingredient in their negative vote which
followed. 8
The strike began on January 31, 1965, and I find that,
thereafter , Respondent continued to meet and bargain
with the Union and Burger in fact increased his 4-cent
wage proposal. The General Counsel concedes, and I
find, that Respondent engaged in no conduct following
the work stoppage which converted it into an unfair labor
practice strike.
C. Analysis and Conclusions
The General Counsel urges that Respondent violated
Section 8(a)(5) of the Act on December 10, 1964 and at
all times thereafter, by asserting during negotiations with
the Union that it was financially unable to grant any wage
increases , and by refusing to furnish economic data to
' When questioned as to whether the meeting of January 30 was the
first at which he informed the employees that Respondent refused to sub-
mit financial statements in support of a plea of inability to meet the
Union's wage demands , McCall replied in the negative and claimed that
he had explained this to his members "in every meeting." McCall im-
pressed me as a genial, conscientious, and skilled representative of the
Union who was obviously schooled in the niceties of labor law . However,
support this assertion when requested by the Union to do
so. He relies upon N .L.R.B. v. Truitt Mfg. Co. 9 as legal
precedent for this position . By alleging that the violation
in this regard stems from December 10, 1 must assume
that the General Counsel has taken the position, that,
under Truitt , a union is lawfully entitled to the production
of a company 's books and records during bargaining
negotiations , in advance of the proposal of any union
economic demands, in order to ascertain what the traffic
will bear before the parties reach the bargaining table, and
that a company 's failure to furnish these materials con-
stitutes a per se violation of Section 8(a)(5). I find nothing
in the teachings of Truitt or in the other precedent to
which the General Counsel has referred me to support
this position.
In Truitt , as well as in additional pertinent decisions,
the gravamen of the employer 's offense was that he had
rejected the union 's economic proposals by erecting a
wall of poverty behind which he steadfastly hid. In those
cases, it was found that the employer's mechanical refusal
to divulge any economic justification for the failure to
meet the union 's proposals , in part , or whole, or not at all,
stymied the scheme of free collective bargaining en-
visaged under the Act and cast a doubt upon its bona
fides. However, on each occasion where a violation has
been found , it was the employer's resistance to a
preliminary union demand with a plea of poverty and a
rigid refusal to back up such a plea with financial data
which triggered the illegality. The reason for these deci-
sional results seems clear . It is an established fact of in-
dustrial life that unions exist for the purpose of extracting
economic gains for its members , and employers operate
business enterprises for profit. Collective bargaining in a
society of economic democracy seeks as its goal to ac-
commodate both . It is also an established fact that unions
make demands in industrial bargaining , and it is only
when an employer resists them in an illegal manner that
the National Labor Relations Act comes into play. It is
now hornbook law that an unlawful refusal to bargain
does not occur unless an employer declines to discuss a
mandatory subject of collective bargaining with a union,10
such as wages . I am hard pressed to understand how a
refusal to negotiate can take place when a demand for the
discussion of such a subject has not been made by a labor
organization . To follow the General Counsel 's thesis to
its logical conclusion , a union need only make a blanket
demand for a myriad of employer records at the outset of
negotiations , without advancing any concrete proposals
of its own , and, if he refuses to produce any data the
union may thereafter charge him with a violation of the
Act in the event he fails to meet its subsequent contract
demands. I feel assured that this is not the state of the law
at the present, and the General Counsel has not con-
vinced me contrariwise.
I have heretofore found that the Union had advanced
no wage proposals to Respondent until a meeting of the
parties on January 27 or 28 , 1965. I conclude that, prior
to those dates, the Union was not entitled to the produc-
tion of Respondent ' s financial statements and that
I find his testimony in this regard implausible in view of the fact that the
first wage proposal made by the Union occurred on January 27 or 28,
1965.
9 351 U.S. 149
19 See N.L.R.B. v Wooster Division of Borg-Warner Corp., 356 U.S.
342.
STANLEY BUILDING SPECIALTIES CO. 997
Respondent did not violate Section 8(a)(5) by refusing to
make them available. Nor am I convinced that Respond-
ent reacted in an unlawful manner when McCall first
proposed the Union's wage figure and Respondent
declined to furnish any data other than the reports of The
Stanley Works which were mailed to McCall on January
6. Throughout its negotiations with Respondent, the
Union was engaged in simultaneous bargaining relations
with Air Control Products, a competitor of Respondent's
which, as I have heretofore found, paid between 30 and
50 cents less than Respondent, a fact which was con-
stantly brought to McCall's attention by Burger and
make them available. Nor am I convinced that Respond-
ent reacted in an unlawful manner when McCall first
proposed the Union's wage figure and Respondent
declined to furnish any data other than the reports of The
Stanley Works which were mailed to McCall on January
6. Throughout its negotiations with Respondent, the
Union was engaged in simultaneous bargaining relations
with Air Control Products, a competitor of Respondent's
which, as I have heretofore found, paid between 30 and
50 cents less than Respondent, a fact which was con-
stantly brought to McCall's attention by Burger and
which the former accepted. In my opinion, a fair appraisal
of all the evidence establishes that Burger expressed con-
cern over this wage differential because its competitive
position was being endangered, and insisted that the
union attempt to escalate the wages paid by Air Control
Products before Respondent would yield to a wage in-
crease greater than the 4-cent hourly rate. In short,
Burger decided to stand "firm" on his wage offer until the
Union obtained a contract from this competitor which in-
creased the latter's wage scales. As "It is elemental that
firmness of a bargaining position does not constitute bad
faith,"" I conclude that the Respondent's refusal to ac-
cede to the Union's wage proposal on January 27 or 28
was not grounded on a claim of financial inability to pay
but was premised on a claim that it was paying in excess
of the rates prevailing in the same competitive labor mar-
ket. I therefore conclude that any refusal by Respondent
to furnish additional financial data to the Union on the
foregoing dates was privileged and was not violative of
Section 8(a)(5).12
However, assuming arguendo that Respondent did in
fact plead poverty in response to the Union's wage de-
mands, I am nevertheless persuaded that it did not
thereby offend the provisions of Section 8(a)(5) by failing
to substantiate this plea. The primary issue to be resolved
in assessing statutory culpability in this area is whether
such failure manifested an attitude of bad-faith bargaining
on behalf of Respondent. In Truitt, the Supreme Court
observed:
We think that in determining whether the obligation
of good faith bargaining has been met the Board has
a right to consider the employer's refusal to give in-
formation about its financial status.73
However, that tribunal went on to state:
We do not hold, however, that in every case in which
economic inability is raised as an argument against
increased wages it automatically follows that the em-
ployees are entitled to substantiating evidence. Each
case must turn upon its particular facts. The inquiry
must always be whether or not under the circum-
stances of the particular case the statutory obliga-
tion to bargain in good faith has been met.14
[Emphasis supplied.]
In the instant case, Respondent, as early as October 19,
1964, when the first negotiating meeting took place,
volunteered to increase hospitalization benefits. At sub-
sequent meetings prior to the strike, it added an extra day
of bereavement pay, agreed to overtime pay for Saturday
work, and acceded to a number of the Union's other de-
mands. It provided the Union with copies of Respond-
ent's pension plan and readily consented to discuss the
insurance plan and provide any information which the
Union sought on this subject. It is undisputed, as I have
heretofore found, that Burger made no attempt to "hood-
wink" McCall about the fact that Respondent had made
a small profit in 1963 and a lesser one in 1964, that
Respondent always stood ready at every bargaining ses-
sion before the strike to meet with McCall and discuss
"anything he wanted to discuss," and that the parties met
on several occasions after the strike and continued to dis-
cuss wages and other terms and conditions of employ-
ment. Indeed, McCall himself testified that Respondent
made additional, although unidentified, wage concessions
after the work stoppage.
In my opinion, the foregoing course of conduct hardly
portrays Respondent as a "hard-hearted Hannah" bent
upon a studied effort to shirk its statutory obligations, and
I would note that the General Counsel has not charged
Respondent with a general refusal to bargain in his com-
plaint. Accordingly, I conclude that the General Counsel
has failed to make out a case that Respondent demon-
strated an attitude of bad faith when it declined to supply
financial data of the Union on January 27 or 28, 1965.
In sum, I conclude that the Respondent did not engage
in unfair labor practices'prior to the strike on January 31,
1965. It necessarily, follows, and I further conclude, that
the work stoppage was not caused by any conduct on the
part of Respondent which was statutorily proscribed, and
that the strike was economic in character from its incep-
tion.
The complaint also alleged that Respondent violated
the provisions of Section 8(a)(5) by affording nonstriking
employees with food and beverages between February 1
and 8, 1965, without prior consultation with the Union.
I have heretofore found that, when the strike began,
Respondent's food caterer refused to cross the Union's
picket line and that Respondent then sought the services
of a substitute caterer. For a period of eight days, the
latter delivered sandwiches and beverages to the plant in
a private automobile because of the refusal of its
truckdrivers to enter the plant premises. It is undisputed,
and I have found, that these food products were not
broken down individually as to price and that the Re-
spondent was unable to determine how to assess the non-
striking employees for this service, with the result that
Respondent paid for them. It is also uncontroverted that,
after February 8, the substitute caterer dispatched its
trucks to the plant and the employees purchased food in
the same manner as they had done prior to the work stop-
page.
11 See N.L.R B. v. Empire Terminal Warehouse Co, 355 F.2d 842
(C.A.D C.).
12 See Ibid, United Fire Proof Warehouse Co. v. N.L.R.B., 356 F.2d
494 (C.A.7), decided February 1, 1966.
13 N.L.R .B v. Truitt Mfg Co., 351 U.S. 149,152
14 Ibid at 153-154.
308-926 0-70-64
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Apart from a simple recitation of this allegation, the
General Counsel's brief is profoundly silent on this issue
and no argumentative support or case citation has been
offered. This is not a case where an employer is charged
with attempting to discourage union membership in viola-
tion of Section 8(a)(3) by offering free lunch and breakfast
to employees, or with interfering with, restraining, or
coercing employees in their right to retain or refrain from
retaining membership in a labor organization in violation
of Section 8(a)(1). The singular charge is that Respondent
provided services out of its own pocket without consult-
ing the Union for a limited period of time and under dis-
tress conditions which were reasonably explained. I
would note that none of the charges filed in the proceed-
ing by the Union specifically allege this action by
Respondent constituted statutorily proscribed miscon-
duct, and that the Union at no time during bargaining ses-
sions protested to the Respondent over the taking of this
action. In my opinion, this type of allegation in a com-
plaint portrays the General Counsel as hen-scratching on
hard ground in search of seed which is not there. I con-
clude that Respondent did not violate Section 8(a)(5)
when it provided employees with free food and beverages
during the period of February 1 to 8, 1965, under the cir-
cumstances detailed herein.
The complaint further charges Respondent with a
violation of Section 8(a)(5) by asserting that Respondent
would not negotiate with the Union unless the latter
withdrew charges which it filed with the Board. During
the bargaining meeting on February 12, 1965, Burger re-
marked that he could not "think very well with that [the
charges] hanging over my head" and suggested that Mc-
Call rescind them. It is undisputed, and I have found, that
Burger did not condition future bargaining upon the
withdrawal of the charges, and that the Union and
Respondent continued to bargain on several occasions
following this meeting. I find no merit in this allegation in
the complaint and shall therefore recommend that it be
dismissed.
With respect to the alleged violations of Section 8(a)(3)
which are enumerated in the pleadings, the General
Counsel admitted on the record that they must fall in the
event that the strike is found to be an economic strike at
its inception, because all strikers had been permanently
replaced prior to their unconditional offer to return to
work, because he had no independent evidence to proffer
in support of his contention that the returning strikers had
received disparate treatment at the hands of the Respond-
ent or that Respondent discriminated against strikers
who were not recalled to work, and because Respondent
had engaged in no conduct following the commencement
of the strike which converted the work stoppage into an
unfair labor practice strike. I have heretofore concluded
that the strike was economic in character at its inception.
In view thereof, and based upon the General Counsel's
concessions, I conclude that the alleged violations of Sec-
tion 8(a)(3) lack legal substance and must be dismissed.
CONCLUSIONS OF LAW
Respondent has not engaged in conduct violative of
Section 8(a)(5), (3), and (1) of the Act.
RECOMMENDED ORDER
The complaint herein should be, and it hereby is,
dismissed.