The Udylite Corp.

National Labor Relations Board - Board Decisions

Jun 10, 1970

183 N.L.R.B. 163 (N.L.R.B. 1970)

THE UDYLITE CORP. 163
The Udylite Corporation and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America , (UAW). Cases
7-CA-6878 and 7-CA-6878(3)
orders that the Respondent, The Udylite Corpora-
tion, Warren, Michigan, its officers, agents, succes-
sors , and assigns , shall take the action set forth in
the Trial Examiner's Recommended Order.
June 10, 1970
DECISION AND ORDER
By MEMBERS FANNING, BROWN , AND JENKINS
On December 31, 1969, Trial Examiner Benjamin
B. Lipton issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged
in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. Thereafter, the Respondent filed
exceptions to the Trial Examiner's Decision and a
supporting brief.' The Charging Party filed cross-
exceptions and a brief in support thereof, and in
opposition to the Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel. I
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, cross-ex-
ceptions, and briefs, and the entire record in the
case, and hereby adopts the findings,' conclusions,
and recommendations of the Trial Examiner.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby
t Inasmuch as the record and briefs adequately reflect the positions of
the parties , Respondent 's request for oral argument is hereby denied Also
denied , as without merit, is Respondent 's motion to strike the Trial Ex-
aminer 's Decision
S The Trial Examiner inadvertently referred to October 14, rather than
December 4, as the date on which Freda Kurzhals was " reinstated " This
inadvertance is hereby corrected
3 Member Brown would not find a violation of the Act in Respondent's
discontinuance of the merit increase program upon the Union 's certifica-
tion, and he would modify the Order accordingly The awards made under
this merit review program were of the discretionary rather than automatic
variety and the entire matter became a subject for bargaining with the
Union when it was certified N L R B v Katz, dlbla Williamsburg Steel
Products Co , 369 U S 736, Armstrong Cork Co v NLRB , 211 F 2d 843
(C A 5)
183 NLRB No 21
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
BENJAMIN B. LIPTON, Trial Examiner: This case
was heard before me in Detroit, Michigan, on
March 10 through 13 and April 28 through May 3,
1969, based on a complaint by the General Counsel
alleging that Respondent engaged in various inde-
pendent violations of Section 8(a)(1), (3), and (5)
of the Act.' Respondent denies that it committed
any of the alleged unfair labor practices. All parties
at the hearing were afforded full opportunity to
adduce relevant evidence, to examine and cross-
examine witnesses, and to argue orally on the
record. After the close, comprehensive briefs were
filed by Respondent and Charging Party.2
Upon the entire record in the case, including the
briefs and from my observation of the demeanor of
the witnesses on the stand, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The Udylite Corporation, herein called Respon-
dent, is a wholly owned subsidiary of Hooker
Chemical Corporation3 and maintains its principal
office and plant in Warren, Michigan, where it is
engaged in the manufacture, sale, and distribution
of electroplating equipment, chemicals, foundry
supplies, and related products. In the calendar year
1967, Respondent had a direct inflow and a direct
outflow in interstate commerce , in each instance,
valued in excess of $50,000. Respondent admits,
and I find, that it is engaged in commerce within
the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, (UAW), herein variously called the
Charging Party , UAW, or the Union , is a labor or-
ganization within the meaning of the Act. Local
889, UAW, is principally involved herein as the
representative of Respondent's office clerical em-
i All dates are 1968, except as otherwise specified In Case 7-CA-6878
the original charge was filed on July 30 and served by mail on August 2 In
Case 7-CA-6878( 3) the charge was filed November 5 and served by mail
on November 6 The consolidated complaint herein was issued on
December 18
2 After several extensions of time for filing, the briefs were received on
August 18, 1969
3 It was stipulated that Hooker acquired Respondent in January 1968
427-258 O-LT - 74 - 16
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees . Local 189, UAW, represents Respondent's
production and maintenance employees.
III. THE UNFAIR LABOR PRACTICES
A. Factual Background and General Issues
On February 2, following an election on January
25, the Union was certified by the Board as ex-
clusive representative in a collective-bargaining
unit of Respondent's office clerical employees.4 Of
160 eligible employees, 76 voted for, and 69
against, the Union. Shortly after the election, an in-
formal group of employees within the unit, some-
times called the open shop committee, commenced
antiunion activities, which continued during the
course of Respondent's bargaining negotiations
with the Union. The committee solicited signatures
to two types of petitions: one urging an open shop,
and the other indicating withdrawal of previously
signed union authorization cards. Respondent ex-
pressly relied on its assessment of these petitions it
received from the open shop committee, among
other reasons, to form its positions on certain bar-
gaining subjects. Specifically, Respondent asserted
at the bargaining table the belief that the Union did
not actually represent a majority of the unit em-
ployees as the basis for its proposals for an open
shop and for a contract limited to 1 year from the
certification date of February 2. For its part, the
Union sought a union shop and a 3-year contract.
In the later stages of bargaining, both sides to some
extent modified their proposals in these two areas,
as will be shown. Commencing on June 28, the
Union on behalf of the clerical unit engaged in a
strike against Respondent, ultimately abandoned
about October 1. On August 14, Local 189 on be-
half of the production and maintenance employees
struck Respondent, assertedly for failure to settle
grievances. From February 9, extending through
the period of the strike, some 35 bargaining ses-
sions were held until December 17, but none
thereafter. In the negotiations, a considerable por-
tion of the time was devoted to questions of con-
tract language relating to noneconomic matters,
e.g., management rights, grievance procedures, and
seniority . When further negotiations ceased in
December, substantial areas of disagreement
remained, especially concerning the "crucial" sub-
jects of union security and length of contract.
Extensive documentary materials were in-
troduced, including original and revised proposals
on particular contract provisions throughout the
course of negotiations. Each side had its own set of
notes and "minutes" of the bargaining meetings
which, by stipulation, were admitted in evidence,
but not for the truth of the contents. For the most
4As resolved after a representation hearing (Case 7-RC-8254). the
appropriate unit comprises all office clerical employees, including regular
part-time employees, but excluding technicians, drafting employees,
estimators, chemical operators, utility men, maintenance men, mail
drivers, chauffeurs, engineering trainees, confidential, managerial,
part, by mutual agreement the witnesses while testi-
fying concerning the bargaining discussions were
permitted to have the minutes at the witness stand.
These minutes, some taken in substantially verbatim
form, have been carefully reviewed in the context
of the entire record, and in pertinent instances have
been given weight (a) where they serve to cor-
roborate testimony and provide detail and clarifica-
tion; (b) where both sets of minutes are in essential
agreement; and (c) where they constitute admis-
sions against interests and reveal conflicts between
the testimony and the minutes of the same party.
The principal issues, as alleged and litigated, are
whether Respondent committed violations, as fol-
lows: Section 8(a)(5): (a) Encouraging and assist-
ing the open shop committee in its antiunion activi-
ties, for the purpose of undermining the Union's
majority and its bargaining position; (b) engaging in
unilateral actions by (1) discontinuing its program
of merit increases immediately before entering into
bargaining negotiations with the Union, (2) grant-
ing increases in wages and cost -of-living allowance,
(3) changing the content of certain jobs and effec-
tively eliminating the availability of such jobs prior
to the termination of the strike, and (4) granting
further cost-of-living increases as of March 1, 1969;
(c) failing to supply relevant bargaining data
requested by the Union; (d) requiring unit em-
ployees to sign forms of an individual employment
agreement ; ( e) refusing to meet with the Union at
reasonable times ; and (f ) generally engaging in bad-
faith bargaining, particularly with respect to the
subjects of union security and contract duration.
Section 8(a)(1): (a) Interrogation concerning
union activities; (b) threats of reprisal against em-
ployees for participating in strike activity; (c) sol-
iciting and inducing employees to abandon the
strike; (d) surveillance of strike activities, including
photographing and recording the names of picket-
ing employees; and (e) creating among employees
the impression that their union activities are under
surveillance. Section 8(a)(3): (a) Denying or delay-
ing merit increases to employees because they in-
tended to and did participate in strike activities; (b)
granting wage increases as a reward to nonstriking
employees and as an inducement to strikers to
return to work; (c) causing and prolonging the
strike by unfair labor practices; (d) failing and
refusing to reinstate nine named strikers upon their
unconditional application to return to work; and
(e) discharging one striker (Tuck) allegedly for
misconduct on the picket line.
B. Open Shop Committee
Russell J. Reed testified at length as a witness for
Respondent concerning the formation and func-
technical, and professional employees, guards, supervisors, and all
other employee.
5 Theretofore, a long history of contractual relations existed without
the incidence of a strike
THE UDYLITE CORP. 165
tioning of the open shop committee; e.g., he de-
cided that he wanted an open shop 15 minutes after
he learned the results of the election on January 25.
On February 7, Reed, Jack Krause, Mildred
Puckett, Carl Richter, and two others undertook to
attend the scheduled union meeting (although they
were clearly opposed to union representation). As a
result, the next day, between 5:15 and 5:30 p.m.,"
Reed, Krause, Puckett, and Angie Fronimos
"stormed" to the office of Personnel Director
Robert F. Revitte.7 Puckett was "screaming" how
unhappy she was. Krause was doing the same, say-
ing, "Mr. Revitte, what do we do? What kind of a
mess are we in?" And all that Revitte said was,
"Why don't you go to the NLRB?" Revitte
described as the reason for their visit that they were
"quite upset" with the results of the election.
On February 9, the Union had its first scheduled
bargaining meeting with Respondent. Oswald D.
McQueen, president of Local 889, testified that
Revitte stated his opinion at this meeting to the ef-
fect that the Union did not represent the majority
of the clerical employees."
Dated February 9, a petition addressed to
Respondent's president, J. J. Rice, contains 63
names and recites the following:
The undersigned employees have no desire to
become a part of any organized union, and to
this point have refused to sign union cards.
We ask that Udylite management not bargain
away our rights as individuals. We want to con-
tinue to work as we have in the past, each able
to speak for himself.
We expect to continue working for the com-
pany, its benefit as well as our own, trusting
that we will never have to make the choice of
signing with the U.A.W. or relinquishing our
job.
The employees who signed cards at the union
meeting on February 7, 1968, now have the
U.A.W. looking after their interests.
We are concerned and wonder if the company
will look after our interests in our desire not to
become union members.
Reed testified that he drafted this petition and that
the signatures thereon were obtained on February
9, 12, and 13.9
On February 19, Reed and Krause retained an at-
torney and thereafter received his assistance and
advice.10 The open shop committee, consisting of
12 named individuals," was formed after their visit
to the attorney. Existing apart from the committee
was a larger open shop group. Reed and Krause
alone determined the membership of the commit-
tee, and their identity was not disclosed to the open
shop group.12 On company premises, regular
meetings were held of the "committee" and
separate meetings were held of the "group." They
tried to get as many as possible to attend. Notice of
the meetings was spread solely by word of mouth.
No minutes were kept, dues collected, nor formal
structure of organization created.13 If the attorney
was paid for his services, as presumably he was, the
means therefor were not disclosed.14 Under the
auspices of the open shop committee or "Udylite
Employees For An Open Shop," circulars opposing
the Union, urging their boycott of union meetings,
and espousing an open shop were distributed in the
plant. During the time of these activities, the Union
was involved in negotiations with the Respondent.
It is not disputed that the open shop committee
prepared and distributed literature and engaged in
solicitations on company time, and that it utilized
company supplies and equipment. After the Union
complained at a bargaining meeting about a par-
ticular flyer, Revitte called in Reed and Krause on
April 24 and advised them not to use company
equipment and supplies in the future. The regular
"open shop" meetings were held after 5 p.m. in
plant conference rooms. Reed testified that (during
the early period) meetings were arranged and con-
ducted clandestinely and no attempt was made to
obtain supervisory permission to use the conference
rooms. In addition, it is disclosed that during work-
ing hours Reed, Krause, and Richter met in the of-
fice of one Church, Respondent's head of interna-
tional sales , where they made phone calls and
planned activities. On occasions when Church was
occupying the office, he would readily leave upon
request.
I am unable to credit Revitte's explanations that
Respondent had no rules controlling the private use
of the conference rooms after hours; that he had no
knowledge these rooms were being used by the
open shop committee; that employees were not
restricted from personal use of company equipment
° Working hours were from 8 15 a in to 5 p in
° Revitte placed this conversation as occurring shortly after the elec-
tion, a week to 10 days
8 Revitte was specifically questioned by General Counsel and denied
there was any discussion about the Union's majority status
° Accepting Reed's hearsay statement that Frommos passed the peti-
tion around in the order department (of 15 employees), there is no evi-
dence as to the circumstances under which these names were affixed to
this petition, or to the later petitions
10 Reed cryptically explained that Krause got the name of this attorney,
John E English Krause was not called to testify
11 Reed, Krause, Puckett, Fronimos, Dave Ogden, Ted Potter,
Margaret Larkin, Pat Marnees, Martha Ertman, Terry Brown, Stan
King, and Liz LaVigne
12 Without corroboration, Reed's testimony lacks plausibility Inter
alia, letters dated May 31 and June 7 are signed in each instance by 12
different individuals purporting to speak for the entire group of "open
shop" employees in the plant
13 To have done so might well have raised the question of the existence
of tie open shop committee as a labor organization under Section 2(5)
attempting to engage in bargaining with Respondent
14 Elsewhere in evidence is a letter dated August 30 from Attorney
English to the Union which states that- "our office has been retained by
a substantial group of employees in the 'white collar' unit at"-Udylite
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and supplies ; and that there were no rules against
solicitation on working time. Revitte was surely
aware of the activities of the open shop committee,
as Reed admitted , and Respondent must have
known these meetings were taking place on com-
pany property. Logs were kept after hours for per-
sons to sign in and out . While Revitte pointed out
that meetings on company premises are held by
other private groups, e.g., bowling, baseball, and
credit union, he could not state any instances when
supervisors were not present at such times. Richter
testified that he had to obtain supervisory permis-
sion to use one of these conference rooms for busi-
ness reasons . Reed and Krause were purportedly
"reprimanded" for using company equipment and
supplies, supra. Regina Guy testified that the "com-
pany told us" not to use company property or time
for literature pertaining to the Union. And despite
the absence of any written rule, it scarcely follows
that employees are generally permitted to engage in
solicitation during their working time. Such a
liberal attitude by Respondent does not comport
with its bargaining proposals limiting the Union's
use of bulletin boards and restricting union activi-
ties in the plant."
Reed did not "recall" being in Revitte's office ex-
cept on three occasions between February 7 and
April 24, and thereafter he could recall that he was
once at Revitte's door.16 Only on April 24 did they
speak of the open shop committee. However,
Richter had observed Reed and Krause in Revitte's
office on three occasions preceding an arranged
meeting of the open shop committee on the same
day.17
Richter , no longer an employee of Respondent,
testified for General Counsel. The testimony on
both sides clearly shows that he was among the
principal open shop proponents. In early February,
when he was approached by Reed and Krause, he
became a member of the open shop committee.
Among other activities, he signed the February 9
petition, passed out open shop pamphlets, and sol-
icited employees to revoke their union cards. Dur-
ing the strike, he continued to work and to oppose
the Union. Of some significance, only in the sense
that it was information being passed on to em-
ployees, is Richter's testimony that Reed and
Krause told him Hooker Chemical Corporation had
conveyed the message to Respondent 's president,
Rice, that it would back the open shop committee
"to the hilt." Richter is credited.18
The open shop committee continued, in the
plant , its campaign to provide evidence of an ex-
panding list of union dissidents . On another petition
dated February 28, and bearing eight names, the
form is the same as that of the February 9 petition,
above . The employees were told that these petitions
would be given to President Rice when he returned
from an out-of-town trip. Dated April 11, a further
petition19 was circulated with an urgent appeal to
have it ready for presentation to Rice that day. Ten
names appear on this document as employees who
previously signed cards20 and "now withdraw said
authorization cards and request that our names be
added to the list of employees who do not desire to
be represented by the Union."
On April 11, a "demonstration " was staged in the
corridor outside Rice's office. Word was spread by
open shop committeemen to employees in the three
buildings in which they were employed. Richter
testified that the advance instructions were for the
employees to assemble at a certain location and
then to march in an orderly fashion down to Rice's
office, led by Reed and Krause. However, there is
no direct evidence as to what the employees were
actually told and by whom. According to Reed, he
issued instructions to his lieutenants to advise the
employees to forgo their coffeebreak at 3 p.m., and
assemble at such time. Richter stated that the meet-
ing took place at 4 p.m., lasting 15-30 minutes, and
that earlier, at 3:45 p.m., he personally heard Reed
inviting a number of people to appear at the Rice
meeting. Reed said he contacted various secretaries
of company executives, but not the secretaries of
Revitte and Rice.
Revitte testified initially that he was sitting in
Rice's office when he heard voices outside the of-
fice door; he looked out and he saw Reed and a
large group of employees. On cross-examination
he conceded that it was not unexpected and that he
was in Rice's office awaiting the visitation of such a
group. That morning he had been told by his secre-
tary of "rumors of a large group to meet Rice."21
Revitte estimated there were 75 to 80 employees in
the corridor; he saw a-good 95 percent of them and
knew who they were as office clerical employees of
Respondent. Reed estimated there were 65 to 80
employees, including the members of the open shop
committee. Later he testified he recognized only 25
to 30 employees and he saw some who were not in
the unit, such as an engineer he knew.22 Richter
said that about 50 employees were there. Rice and
15 E g , April 16 proposal on "Representation" that "No Union
activity, including grievance processing, shall be carried on Company
premises during scheduled working times "
16 Previously Reed testified that, about February 28, he and Krause
approached Revitte for a list of the employees in the unit-which Revitte
refused
i] I find that there were more than the four such visits recalled by Reed,
and that on each occasion the conversation concerned in some aspect
the activities of the open shop committee
11 Reed's testimony appears vague , contrived , and evasive in num-
erous respects
19 Reed indicated that the language was furnished by Attorney English
20 There is no showing that these employees had actually signed
authorization cards or were at any time members of the Union
21 It is difficult to believe , as Reed related, that such a meeting was not
cleared in advance with Rice-at least to the extent of having knowledge
that Rice would be there when all these employees collected at his office
Rice was not called to testify
It is a reasonable assumption that some employees came along with
the group or stopped in the crowded corridor at the ceremony in front of
Rice's office only for reasons of curiosity
THE UDYLITE CORP. 167
Revitte stood outside the office door. Reed an-
nounced that he was the spokesman for these peo-
ple in the unit who are interested in an open shop.
He handed three petitions to Rice, stating that the
people who signed are in this group . Rice read each
of the petitions , and then said that Respondent is
obligated to bargain with the Union and would do
so. Richter testified that the main points of Rice's
speech were that he would back the open shop
committee, and that he was happy to know he had
these loyal people standing behind him.
On April 16 , the next bargaining session, Respon-
dent submitted its first written proposals on certain
subjects . As part of a proposed article on union
recognition , Respondent included a section which
in effect provided for an open shop . Among the
reasons it advanced in the discussion was the ex-
istence of employee petitions as the source of its
doubt regarding the Union's majority representa-
tion . The Union charged that management had en-
couraged the solicitation of antiunion petitions, and
also referred to the mass meeting with Rice the
previous Thursday, April 11. Revitte then remarked
that that meeting was spontaneous , and "any time
someone has a problem, thirty or forty people can
talk to me to have a meeting ." The same position of
Respondent , relying on the petitions , inter alia, as
proof of the Union's lack of majority, was
reiterated in numerous subsequent meetings with
the Union . These employee petitions or other pur-
ported documentary evidence on the majority
question were never brought to the bargaining
meetings , as Revitte admitted. Nor, indeed, in this
record was there an attempt to establish by direct
probative evidence that a majority of the employees
in the unit had signed the petitions . 23 There is only
the testimony of Revitte that he had his secretary
verify the signatures from employment records and,
on cross-examination , that he checked some him-
self.24
At the July 10 meeting, during the strike, the fol-
lowing exchange took place , in pertinent part:25
PARKER : Union Security?
REVITTE: No change.
VEGA (Union ): What do you mean `no
change.' I want to get your thinking ... why do
you propose an open shop at Udylite?
REVITTE: Because the majority of the people
do want an open shop.
VEGA: I want the truth. Didn't you have an
election and didn't the majority vote for, rather
than against?
REVITTE: At the time of the election-but
just shortly after the election the majority had
indicated they do not want the Union.
VEGA: We complied with the law. People
came by their own free will-they want the
Union to represent them. Now you come in
here and say that the majority do not want to
belong . Where is your proof?
REVITTE: The majority of people are coming
in to work. You can count them....
VEGA: Do you mean to tell me that what I
observed-out there bidding your employees
goodnight is normal procedure?
REVITTE: If you are going to be out there we
are going to be out there. If you are going to
have so many people on the picket line ....
VEGA : I still think we have the right to ask
the Company for proof that we do not
represent the will of the people. If you think
we are unreasonable about getting this proof, I
would like to hear about it. Mr. Revitte stated
that it has got to be an open shop and when
asked for proof he said `go out and count
them ' and I 'm not about to.
KELLER: We are here to negotiate a con-
tract . It does not mean that we have to lock in
on representation by your Union.
VEGA: ... What about checkoff-what
would be your objection to checkoff?
REVITTE: Open shop and checkoff do not go
hand in hand.
VEGA: What about contract termination?
REVITTE: Our position is still the same-7-
month contract ( i.e., from that date).
VEGA: You are talking about decertifica-
tion . I didn 't know any employer had the guts
to propose a contract of as short a duration as
one year.
KELLER: You know we can't decertify. All
we can do is file a petition.... Maybe these
people should have another chance to look at
the situation.
On April 22 Revitte posted a "Personnel Bul-
letin" informing the employees of the "Office-Cler-
ical Contract Negotiations " and indicating that
Respondent will "keep you informed of future
developments." In the bulletin, he stated , inter alia,
that " in response to the Union's demand for a
union shop " ( i.e., all employees must be Union),
Respondent had submitted a "Recognition
proposal " which includes "a clause stating that all
employees should be free to join or refrain from
joining the Union." In the ensuing period, leaflets
were distributed and communications were sent on
behalf of the "open shop" employees. On June 28,
the date of the strike, Mildred Puckett sent a letter
to the Union, with a copy to Respondent, enclosing
a petition stating that the signers had withdrawn
23 The parties' stipulations to admit these petitions in evidence is
construed as an agreement merely that these documents were received
by Respondent and not that the names thereon are authentic signatures of
employees then in the appropriate unit
24 The 3 petitions contain 81 names Revitte stated that he had deter-
mined there were 155 employees in the unit at that time, i e , April I I
As already noted , at the January 25 election , 160 employees were eligible
to vote Revitte also testified that between January 25 and April 15 6 unit
employees had quit and 7 new employees were hired, and that there were
165 employees in the unit when the Union struck on June 28 It is ap-
parent that these figures do not reconcile No substantiating company
records were disclosed at the hearing
25 Credited from the uncontradicted and corroborated account of the
Union 's minutes , taken in substantially verbatim form
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their union cards. The petition contains six pur-
ported signatures, of which four are dated June 28.
During the strike, supervisors, including high offi-
cials, were in daily attendance at the picket line.
They greeted the nonstrikers. Known leaders of the
open shop committee engaged in the same conduct.
On several occasions, Reed and Krause stood with
Revitte receiving people through the picket line.
Reed also made phone calls to strikers at their
homes, e.g., to "join the winning side," to withdraw
their union cards-and to tell them they would get
a 5-percent increase which is "given to everyone
who comes off the picket line." Revitte openly took
the names and kept an account of the picketers.
Puckett and LaRonde of the open shop committee
were also observed taking names. In the early part
of the strike, Clifford J. Parker, international
representative of the UAW, had conversations at
the picket line with Gerald W. Munro, Respon-
dent's labor relations manager. Parker's uncon-
troverted testimony is that he asked Munro why
management was out there talking to the pickets,
why "some of the open-shop committee were out
beyond starting time waving people in," and
whether "they were being docked the same as the
bargaining committee were being docked for time
spent in bargaining"; Munro responded that "they
were receiving overtime. "26
Mildred Puckett and Theodore H. (Ted) Potter,
in particular, are alleged to be supervisors under
the Act, or agents of Respondent.27
Puckett is employed in the order department-
which has 15 employees under the head supervision
of Letha Frame. When Frame is on vacation (23
workdays a year), otherwise absent, or away from
the department, Puckett acts in her place.28 Only
Frame and Puckett in the department sign approval
on the timecards of employees. Employees speak to
Puckett when they call in sick, obtain permission
from her to leave work early, and may be ad-
monished by her when they come to work late. In-
dependently of Frame, Puckett has authority to
issue corrections in customers' invoices, make
credit adjustments, and approve the return of
merchandise-as to which other employees come
to Puckett for authorization. Her monthly salary is
$115 more than the highest paid employee in the
department. I find that Puckett exercises direct su-
pervisory authority for substantial periods of time
and at all times responsibly directs employees
within the meaning of Section 2(11) of the Act.29
Potter was promoted to foreman in the tool crib
department effective April 15, and a notice of such
action was posted on the bulletin board. He
testified that he was advised of such promotion by
Supervisor Del-Buttrey on April 11 and gave his ac-
ceptance on April 12.30 Gayle Allard testified that,
on a particular day in April or May, Potter spoke to
her twice about signing an open shop petition. He
said that he and Revitte were well aware of who
was in the Union and what was going on at all
times, "and so it was a lost cause." He also con-
fided to her that he had let Respondent know he
would take the side, Union or Company, which of-
fered him the best deal.31 Allard then commented
that she could see why he had done this, as he now
had a foreman's job. Allard further stated she knew
he was a foreman at the time of these conversations
as Potter had theretofore told her of his promotion
in March or April. Potter testified, viz: His discus-
sions with Allard concerning the open shop petition
occurred before April 12-in late March or early
April. Although he was offered the foreman's job
earlier that day, he attended the meeting in front of
Rice's office on April 11. On April 11 he informed
Krause and Ogden of the open shop committee that
he was being considered for a promotion to super-
visor and they told him to terminate his connection
with the committee. He had replaced Kauffmann as
crib for man, but the post had been vacant for a
while. Buttrey did not testify, and no records were
introduced. While it is apparent that Allard was un-
certain as to precise dates, her testimony is credited
regarding the essential timing and content of the
conversations. Potter's testimony impressed me as
being insincere. Whether or not Potter's promotion
was made effective by April 15, or notice posted to
such effect, I find that he was actually notified of
his foreman's status on or before April 11, and that
he informed Allard of this fact before their conver-
sations in question. Thus, he was a management
promotee even when he attended the Rice meeting.
On April 11, as already shown, an intensive drive
was conducted by the open shop committee for
signatures, in order to furnish Rice with sufficient
evidence on the majority question. In all these cir-
cumstances, I reach the conclusion that Potter sol-
icited Allard's signature on April 11, and both
knew at the time that he was an appointed super-
visor or member of management.
As shown, Puckett and Potter were among those
named by Reed as members of the select open shop
26 Reed testified that he came to the picket line before working hours
but denied that he was "paid by the company to go out and wave pickets
in "
27 Russell Reed's status was also litigated Employed in the credit
department, he is responsible for handling credit questions on approxi-
mately half of Respondent's accounts, within certain limits set by the
department head Dale Moon On a job description form prepared by
Respondent in 1967 Reed is plainly shown as the "immediate super-
visor" of Diane Caton Contrary to Respondent, it does not detract
from the effect of this document that, in a covering letter submitting
these forms to the Union on July 16, 1968, Revitte states that "no
determinations have been made that the questionaires describe each
Job completely and accurately," nor by the entry on Kay Schneider's
form that she is "responsible for typists" 20 percent of her time How-
ever, while I find herein that Reed was an agent of Respondent in his
open shop activities, I do not consider the affirmative evidence sufficient
to hold that he was a supervisor under the Act The status of Jack Krause,
described as a buyer, was not alleged or litigated
28 They arrange not to take vacations at the same time
21 See Ohio Power Company v N L R B, 176 F 2d 385 (C A 6),
cert denied 338 U S 899
30 I do not believe, as Potter intimated, that he needed time to decide
whether to accept this offer
31 Elsewhere it appears that Potter engaged in prounion activities
'during the election campaign
THE UDYLITE CORP.
committee and they participated in obtaining signa-
tures for the open shop petitions. Puckett wrote let-
ters as spokesman for the committee and was par-
ticularly active in speaking to the employees in her
department and in soliciting withdrawal of union
cards. It appears from unopposed statements of
Respondent's counsel that both of these individuals
were permitted, by stipulation, to vote in the elec-
tion. Respondent contends, therefore, that the issue
of their supervisory status is res judicata in the
representation case. However, the decisions are
clear that, despite such a stipulation, Respondent is
responsible for the antiunion conduct of these su-
pervisors where, as I conclude on this record, it en-
couraged such conduct and acted in a manner as to
lead employees reasonably to believe that the su-
pervisors were acting for and on behalf of manage-
ment.32
Conclusions
On the broader question, I find that Respondent
encouraged, assisted, and supported the conduct of
the open shop committee in its efforts to undermine
the Union's established majority status.
In disregard of the Board election decisively won
by the Union, the campaign continued on without
abatement to prevent the Union's representation of
the clericals. Despite the "open shop" banner, it is
fairly clear that the primary purpose of this dis-
sident group was to provide Respondent with
evidence upon which it could challenge the Union's
majority position at the outset of bargaining. While
Respondent was under a legal obligation to regard
the majority question as conclusively settled for at
least 1 year after the Union's certification'33 it acted
with obvious alacrity so soon after the election in
accepting the open shop petitions as evidence of
the Union's loss of majority. Such evidence as
Respondent possessed was highly questionable.34 If
the petitions of February 9 and 28 were confined to
a request by these employees not to be compelled
to join the Union, it would not in this form manifest
any clear indication not to be represented by the
certified Union. However, the preamble in these
petitions is cleverly and ambigiously worded to ap-
pear to go beyond a desire for an open shop. Thus,
there is the request made of Respondent not to bar-
gain away their rights as individuals, and the ex-
pressed desire to continue to speak for themselves,
32 E g , Montgomery Ward & Co , Inc, 115 NLRB 645, enfd 242 F 2d
497 (C A 2)
33 The exception to the rule , where "unusual circumstances " exist, does
not apply here Ray Brooks v N L R B , 348 U S 96, 98
34 "A petition or a public meeting in which the influences of mass
psychology are present- is not comparable to the privacy and inde-
pendence of the voting booth " Ray Brooks v N L R B , supra at 99
35 Respondent could not assume the attitude , as it stated in bargaining
with the Union , that it had to negotiate a contract acceptable to all em-
ployees , not just part of them It could not simultaneously seek to satisfy
a minority group opposed to the Union and at the same time accord the
Union its statutory due as the certified majority representative and
exclusive agent for all employees in the clerical unit
169
while stating that those who signed cards would
have the UAW look after their interests.',' These
documents nonetheless were circulated and
represented to be "open shop" petitions, and it may
be doubted that the employees really understood
what they were asked to sign. It is significant that
on April 11 an urgent effort was made to obtain
further signatures, as on the petetition for
withdrawal of union cards. The reason for the ur-
gency is evident in the closeness of the majority
count by the open shop committee that day. And
the timing coincided with the planned ceremony at
President Rice's office to deliver over the proof of
majority sentiment opposed to the Union.
There is substantial showing of Respondent's sup-
port for the open shop committee, particularly in
the eyes of the clerical employees,36 with the neces-
sary effect that Respondent rendered as its own
agents the open shop committee and its active
proponents. (a) Respondent's high officials were
certainly aware of the April 11 meeting with Rice
well in advance of the event. It had to be known by
management that the preparation, assembling, and
dispersal of such a large contingent of employees
from three buildings would consume an appreciable
amount of employees' working time-likely in ex-
cess of one-half hour for each employee. (b)
Respondent promptly adopted the open shop peti-
tions for its own purposes, to support the basic bar-
gaining proposals it put forth in the contract
negotiations, and then proceeded to announce its
position to the employees. (c) On working time, the
open shop committee used Respondent's premises,
conference rooms, equipment, and supplies and en-
gaged in soliciting and circularizing the em-
ployees.37 (d) Supervisors of Respondent were ac-
tive members of the committee. (e) During the
strike, leaders of the committee stood side by side
with top management personnel in attempting to
counter the Union's activities on the picket line,
thereby identifying Respondent with the open shop
committee. (f) Open shop committee leaders held
themselves out as being supported by management.
Respondent did nothing to disabuse the employees
of reasonable cause to believe that it supported the
open shop committee.
Accordingly, it is found, as alleged, that by the
conduct described above, Respondent restrained
and coerced employees in violation of Section
36 Slight suggestions as to the employer's choice between a union and
an organized dissident group may have telling effect among employees
who know the consequences of incurring that employer's strong dis-
pleasure E g , International Association of Machinists, Tool and Die
Workers Lodge No 35 [Serrick Corp ] v N L R B, 311 U S 72, 78
See also Southland Manufacturing Corp, 157 NLRB 1356, 1387
39 Nor is it plausible that Respondent was merely pursuing a neutral
stance in allowing complete and unrestrained activities on company time
and property to both factions, those who favored and those who were
against the Union This is all too facile a defense in the circumstances
revealed Unless it was clearly publicized to the employees, as it was not,
that they had such freedom of the plant, as Revitte described-the
employees had to assume that working time was for work
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8(a)(1) and failed to bargain in good faith in viola-
tion of Section 8(a)(5).38
C. Unilateral Action Concerning Wages
1. Merit increases
Respondent had an established practice of giving
the clerical employees merit reviews twice in the
year of hire and annually thereafter, with the merit
increase generally not in excess of 8 percent of base
salary in any continuous 12-month period. Follow-
ing the Union's certification, Respondent discon-
tinued this practice without notifying or consulting
the Union. According to Respondent, at the March
27 bargaining meeting the Union indicated it
"heard rumors" from employees that a "freeze" had
been put on merit increases. Asked for specifics,
the Union mentioned the names of certain em-
ployees.39 Respondent then stated its position
simply that merit increases were a proper subject
for bargaining. There is plainly no validity in
Respondent's argument that, because of the
Union's silence at this point, that the Union in ef-
fect agreed to the cessation of merit increases
pending negotiations on the subject. Confronted
with the accomplished fact, the Union was not
obliged in subsequent sessions to drop discussion
on other important subjects in order to bargain
toward an immediate agreement to restore the
discontinued program of merit increases. On June 7
the parties did reach an interim agreement, which
provided, in essence , that Respondent would con-
tinue its past procedures during the period of
negotiations, would review all eligible employees
for the previous months, and would advise the
Union of its decisions, but that the Union reserved
the right to contest any decision granting or failing
to grant a merit increase, and that disagreement
would not operate to prejudice any proposal ad-
vanced by either party during the negotiations.
Respondent's contention in its brief that it was
legally obligated to halt all merit increases during
negotiations is misplaced; It overlooks the critical
fact that in such decision to discontinue it acted
unilaterally and arbitrarily, with an undercutting ef-
fect upon the Union concerning a mandatorily bar-
gainable subject. Unquestionably, Respondent's
merit increase program was an existing form of
compensation, and a term and condition of employ-
ment , regularly expected by the employees. To be
sure , an element of discretion, predicted upon prior
38 Cf Fremont Newspapers, Inc, 179 NLRB 390
"It is also evident that in April Supervisor James R Kirkhoff told one
employee , when she complained , that "all raises were being held pending
the union 's settlement "
40 E g., A H Belo Corporation, 170 NLRB 1558, enfd 411 F 2d 959
(C A 5), Stark Ceramics, Inc, 155 NLRB 1258, enfd 375 F 2d 202
(C A 6), Exchange Parts Company, 139 NLRB 710, enfd 339 F 2d
829 (C A 5)
41 A H Belo Corporation, 170 NLRB 1558 (TXD)
42 E g , Satilla Rural Electric Membership Corporation, 137 NLRB
387, 392
merit review, was retained by Respondent with
respect to particular employees, but certainly not to
the entire program . In the same respect, the merit
increases here are analogous to regularly paid
Christmas bonuses, as to which the law has long
been firm that a unilateral discontinuance manifests
a refusal to bargain . 40 If the employer believes it is
confronted with a difficult decision as whether such
merit increases may be legally continued during
bargaining-a readily available recourse is for the
employer, before taking any action , to consult with
the union and seek a mutually agreeable means of
resolving the question in the most expeditious
manner. 41 However, it is apparent that other con-
siderations motivated Respondent's conduct on the
merit increases . In the course of bargaining on this
subject as on certain others, shown infra, it is noted
that Respondent insistently sought the right to act
unilaterally in derogation of the statutory represen-
tative of the clerical employees.42
It is also credibly evident that, despite the interim
agreement with the Union on June 7, merit in-
creases were withheld from employees solely
because of the pendency and occurrence of the
strike, and not paid until the strike's termination in
October. Such withholding, I find, was coercive and
discriminatory upon the employees affected, in
violation of Section 8(a)(1) and (3).43
2. Wages and cost-of- living allowance
On April 4, Respondent posted a bulletin ad-
dressed "To All Salaried Employees (excluding of-
fice-clerical employees)," in which it announced
immediate wage increases and promises of future
benefits. Salaries were raised 5 percent. Also, these
employees were informed that, of course, they "will
continue to be reviewed at their normal review time
and salary increases will be granted based on per-
formance and merit." In addition, they will receive
a cost-of-living allowance of $8 a month, which
would again be increased to $13 in March 1969
and to $19 in March 1970. "Other improvements"
and benefit programs were currently being
reviewed and further announcements would be
made as soon as possible. A final note held forth
that Respondent's future has brightened con-
siderably in recent months by reason of a corporate
merger.
There is no doubt that this communication was
calculated, in substantial part, to exert pressure on
the clerical employees within the unit respecting
their adherence or opposition to the Union.44
93 On June 27 Supervisor Don Giddings told Helene E Kozlowski that
he was not going to release her merit increase because it would make him
look foolish giving her the raise I day before she was to go out on strike
On the same date Marcella J Scarborough was similarly informed by
Giddings On June 24 or 25 Kay V Schneider was told by Supervisor
Kirkhoff that her ment increase had slipped his mind and he would take
care of it right away Not until after the strike, in October, did these
employees receive their merit increases, although, when they did, it was
made retroactive to a date preceding the strike
44 As earlier described, during this period the open shop committee
was intensively campaigning, e g , to obtain withdrawals from the Union
THE UDYLITE CORP. 171
On May 14, Respondent first made its economic
proposals to the Union , inter alia , providing for a 5-
percent wage increase and an $8-per -month cost-
of-living allowance-at the same time that it
specified a'contract term to expire with the certifi-
cation . year . On May 21 , the Union submitted its
counterproposals consisting of a detailed salary
grade structure for wages , and a formula for cost-
of-living allowances-in each instance extending
over a term of 3 years.
Following the strike , about July 3, Respondent
announced to the working clericals and placed in
effect a 5 -percent wage increase and an $8 cost-of-
living allowance . The Union was not notified or
consulted . Respondent 's brief asserts justification
for this unilateral action on the grounds that an im-
passe existed on wages. However , the evidence is
quite clear that relatively little bargaining took
place on the subject of wages in the interval
between the submission of the respective proposals
and Respondent 's decision to grant the raises.
Although progress in the negotiations was slow, and
numerous major issues were outstanding between
the parties , there is entirely no basis for holding
that an impasse existed on any subject at this
point . "' On June 11 and 26, for example , Respon-
dent indicated that bargaining with respect to many
of the economic issues would have to be deferred
until after the length of the contract was deter-
mined . During and after the strike , the parties con-
tinued to meet , with proposals submitted and agree-
ments progressively reached on a number of sub-
stantial subjects . Economics in various aspects were
certainly open and considered at several of these
meetings . Admittedly on both sides , the crucial
areas during the later stages of bargaining consisted
of contract duration and union security . It suf-
fices to refer to a portion of Respondent's state-
ment at the September 26 meeting : "If we are
able to work something out in these two areas it is
subject to dismissal of [the pending unfair labor
practice charges] . . . . I have the feeling that
the economic isues are not as difficult as non-
economics . We will look into economics as a pack-
age. I can give you some general guidelines if we
have the length of the contract nailed down . . . .
We are willing to work within this wage structure
[proposed by the Union ] if some juggling is neces-
sary . . . . There can be movement on the cost
of living. . . "
Moreover, in view of the timing pointedly related
to the inception of the strike , and in light of the en-
tire record , I find these general wage raises were
also designed as an inducement to employees to
refrain from , or to abandon , participation in
the strike. Accordingly, the alleged violations
of Section 8(a)(5) and ( 1), in this instance of a
flagrant nature , are fully sustained in the
evidence.46
D. Individual Employment Agreements
On June 27, the day before the strike, Respon-
dent distributed to the clerical employees a form
entitled "Employment Agreement-Form B." Each
was required to sign , witness the signature of
others , and return the executed form that day. Fol-
lowing the strike , in October , it appears that some
of the returning strikers were asked to sign the
same form. Respondent contends that this agree-
ment is intended purely as a commitment by the
salaried nontechnical employees "' to safeguard
Respondent 's "trade secrets ,"48 and is not materi-
ally related to the statutory formula of wages,
hours , and conditions of employment. Viewing the
actual language in this individual agreement,
Respondent 's position must be rejected . Thus, for
example , paragraph 4 bears no relation to trade
secrets, e.g.:
I agree to perform and carry out diligently,
faithfully and to the best of my ability all duties
assigned and instructions given to me by
authorized personnel of the Company, to
comply with the rules, regulations , policies and
procedures of the Company and to act and
comport myself at all times in the best interests
of the Company.
Nor are Revitt 's explanations acceptable as to the
timing of the distribution of these forms to the cler-
icals . A memorandum from Hooker dated January
17 indicates that, "effective immediately ," form B
was to be signed by applicable "newly hired" em-
ployees . 49 Another memorandum dated June 25
from Respondent to its own department heads
recites that "new forms" had been received from
Hooker which all present employees will be
required to sign immediately. It can only be con-
cluded that this kind of evidence by Respondent is
fragmentary, self-serving , and does not provide the
justification it claims .50 Also on June 27 President
Rice addressed the assembled clerical employees in
an effort to dissuade them from participating in the
scheduled strike the next day ( as further discussed,
infra ). They were compelled to execute this "Em-
ployment Agreement"-without advance notice, in
seeming haste , and with no opportunity to seek ad-
45 See , e g , Taft Broadcasting Co, 163 NLRB 475, Northland Camps,
Inc, 179 NLRB 36
46 The 8(a)(3) allegation in the complaint on the theory of conduct
discriminatory against the strikers is not found , as the 8 (a)(1) violation is
adequate to support the recommended remedy , which does not include
backpay
41 Technical and professional employees were required to sign form A,
not disclosed in evidence
48 Otherwise entitled "Safeguarding Proprietary and Patent Informa-
tion "
41 Revitte testified that he did not receive this document until late in
May
50 These memorandums introduced by Respondent cannot be viewed in
isolation , as the only internal management communications , written or
oral, on the subject over the 5-month period shown
172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vice as to the effect of such a complex instrument.
The production and maintenance employees,
represented under contract by Local 189, were not
required to sign such a document. And the Union,
in the very process of negotiating with Respondent,
was in no manner notified or consulted. In all the
circumstances, the employees could reasonably be-
lieve that the Union was being bypassed, that they
were bound by this individual agreement to "com-
port themselves in the best interests of the Com-
pany" even at the sacrifice of their representation
rights, and that Respondent imposed such require-
ments solely by reason of the impending strike.
Such effect, I find, was the purpose of Respondent
in its timing of this matter. It is unnecessary to de-
cide as a general proposition whether nontechnical
represented employees, as here, may be required to
sign individual trade secret agreements without bar-
gaining with the Union. For example, proof of
reasonable necessity and relationship to routine du-
ties, or access to such confidential matter, all not
established here, may well be pertinent to the
question. As clearly shown, the "Employment
Agreement" in this record extends beyond necessa-
ry language to preserve trade secrets into the broad
realm of working conditions. Consequently, I con-
clude on this issue that (a) Respondent acted uni-
laterally in violation of Section 8(a)(5), and (b) it
independently violated Section 8(a)(1) by coercing
the employees with respect to their right to engage
in a strike.
E. Restraint and Coercion
because she attended all the union meetings. On
June 28 Giddings telephoned Kozlowski at home
and asked if she was coming in; she responded
negatively. He then said that if she came back to
work Monday, she would be accepted, as Mr. Rice
had extended the deadline from Friday until Mon-
day. On June 27 Giddings also talked with Scar-
borough. She asked if she could be fired if she did
not come in the next day. He answered that "this
could happen," as Rice had stated in his speech
that the strikers "could be replaced." He told her
that if she "didn't come in tomorrow (Friday),
don't come in Monday." Giddings also said he
knew she attended the union meetings.52
On June 27 Revitte approached Freda Kurzhals,
a relief switchboard operator and receptionist, and
offered her a full-time receptionist job to begin the
following Monday at a salary increase of $25. She
accepted, but did not assume the job because she
joined the strike on June 28.53
Rice's speech on June 27 is not specifically al-
leged as coercive. On the sparse evidence, I find
that he told them essentially that as (economic)
strikers they could be permanently replaced-
which was not coercive in the existing circum-
stances. However, Giddings interpreted and used
the speech in a manner which conveyed an implied
threat to Kozlowski and Scarborough that their jobs
would likely or definitely be forfeited if they par-
ticipated in the strike. Additionally, Giddings' com-
ments to both were designed to create the impres-
sion that their union activities were under Respon-
dent's surveillance.
Within the framework of the complaint, nu-
merous alleged independent violations by Respon-
dent occurring before and during the strike (June
28-October 1) were fully litigated.
1. Before the strike
As earlier described, in April, Potter, as a
promotee to supervision, told Allard that he and
Personnel Director Revitte were well aware of who
was in the Union and what was going on at all
times.
On June 27, President Rice spoke to the assem-
bled employees concerning the strike scheduled the
next day. Kozlowski testified that Rice said that it
was the last opportunity to change their minds, and
that if they did not come in the following day, he
didn't know if there would be any work for them.51
That day she was told by Giddings, referring to
Rice's speech, that he did not know if there would
be a job for her if she did not report the next day.
He also said he knew she was for the Union
51 Supervisor Giddings' brief version was that Rice said "There was no
assurance that there would be jobs for the strikers "
52 The discussions concerning merit increases, supra, took place in
these same conversations of Scarborough and Kozlowski with Giddings
53 Revitte is not credited that this offer was made and accepted in mid-
2. During the strike
Admittedly, Respondent employed professional
photographers who openly took pictures of the
strikers at various picketing and other locations for
at least 20 to 30 days after the strike commenced.
Supervisor Munro was seen using a camera at the
picket line. Throughout the strike, Revitte was seen
at the picket line virtually every day making notes
and taking names, at times even inquiring as to the
identity of particular strikers.54 It has been shown
that company officials and open shop leaders were
in regular attendance at the picket line; e .g., in per-
forming "nail duty" and in greeting nonstrikers.
Especially in such a pervasive atmosphere of
management scrutiny of the protected peaceful
picketing of these clerical employees, I find
Respondent's conspicuous taking of pictures and
names of strikers was calculated to, and did, have
the coercive implication that Respondent was
recording such information for the purpose of visit-
May and that the accompanying raise was effective May 1, Inter alia, it
is documented that Kurzhals, and many others, received a merit raise as
of May 1, retroactively effected
59 His testimony that the closest he got to the pickets when taking
names was 200 feet is not credited
THE UDYLITE CORP. 173
ing future reprisals .55 As such conduct of Respon-
dent commenced the first day of the picketing, and
there was no indication of a reasonable basis for an-
ticipating violence and mass picketing, Respon-
dent's contention that its purpose was to secure
evidence of such unlawful strike activity56 is wholly
without foundation.57
That Respondent engaged in numerous solicita-
tions of strikers to return to work is fairly
established in the evidence. Revitte told Schneider
he was surprised to see her there, and instructed
her to go back to the office where she belonged. He
told Allard and Anna Rudzewicz that they
shouldn't be there-"why don't you go back to
work"? Credit Manager Moon asked Schneider to
come back and try to bring the girls back. Labor
Relations Manager Munro told Allard, a secretary
in production and planning, that she could work for
him if she came back. Kirkhoff spoke to Murtha
twice on the picket line and telephoned her at
home at least once-in an effort to induce her
return '58 stating that "the company won't give in for
quite a while." As previously described, Giddings
sought to keep Kozlowski from going out on strike
and telephoned her at home on the first day of the
strike to come to work. He implied the threat that
her job would be lost if she did not return by the
extended "deadline" on Monday. Reed, of the open
shop committee, made telephone calls to at least
one striker to return to work, mentioning the wage
increase "which was given to everybody that went
back in off the line."
Absent a threat or promise of benefit, the legality
of an employer's solicitations of individual strikers
to return to work must be determined in light of the
entire background against which such solicitations
were conducted.59 In all the circumstances
described, I find the solicitations in question con-
stituted an organized effort and a course of conduct
of Respondent, rather than individual or isolated in-
cidents. They were undertaken in the context of
other unfair labor practices indicative of Respon-
dent's animus toward the Union's representation of
the clericals. In certain instances, as shown, these
solicitations were accompanied by a threat or a
promise. It has earlier been found that, upon the in-
ception of the strike, Respondent unilaterally in-
stituted wage and cost-of-living increases having a
substantial purpose of influencing employees to
refrain from or to abandon strike activity. I con-
clude, therefore, under established criteria of the
Board,60 that the solicitations were an integral part
of Respondent's illegal opposition to the purposes
of the Act insofar as pertains to the rights of the
represented clerical employees.
Accordingly, on the basis of the foregoing, the al-
legations are sustained that Respondent violated
Section 8(a)(1) by engaging in surveillance of em-
ployees' union and protected activities; creating the
impression among employees that they were under
such surveillance; photographing and taking the
names of strikers; threatening employees with the
loss of their jobs if they participated in a strike;
promising and granting benefits to induce em-
ployees not to engage in or to abandon their strike
activity; and soliciting strikers to return to work.
F. Refusal To Bargain
As already shown and as manifest in this record,
the subjects of contract duration and union security
were the crucial issues throughout the negotiations
and presented the ultimate obstacles to any full
agreement.61
1. Contract duration
Formally submitted on May 14, Respondent
proposed a contract term only until the expiration
of the Union's certification on February 2, 1969.
As reason for this limited term, Respondent in-
formed the Union of its doubt that it represented a
majority of the unit employees, asserting as
evidence the open shop petitions it received on
April 11 (but did not disclose) and statements
made by (unidentified) employees. 62 In maintaining
this position in subsequent sessions, Respondent
also variously mentioned employee turnover, the
closeness of the election, the desire to afford the
employees a new election, and an alleged lack of
majority support for the strike. On July 29, in a
private meeting with the Federal mediator, Respon-
dent informally indicated to the Union that it would
accept a contract a month or two beyond February
2; i.e., a contract term of 7 or 8 months.' On Sep-
tember 26, the Union proposed a 16-month con-
tract from date, and Respondent then offered a 10-
month contract from date. The Union's further
compromise to split the difference by agreeing to a
13-month contract from date was not accepted by
Respondent.
ss E g, N L R B v Rybold Heater Company , 408 F 2d 888 (C A 6),
Preston Feed Corporation , 134 NLRB 629, 643 , enfd 309 F 2d 346,
351 (C A 4), Flambeau Plastics Corporation, 167 NLRB 735
56 Offers of proof of such purpose simply by the testimony of Revitte
were rejected
57 To be compared is Supervisor Kirkhoffs testimony emphasizing the
peaceful and even friendly character of the picketing by the clerical
employees
se Kirkhoff indicated that , during the course of the strike , management
officials had numerous conversations with the strikers , and that he might
have had 50 or 100 such conversations
59 E g , The Texas Company, 93 NLRB 1358, 1360-62, King Chrysler-
Plymouth, Inc, 174 NLRB 531
60 Ibid
61 As a record fact, it is noted that Respondent's contract with Local
189 of the Union, inter a/ia, provides for a 3-year contract term, union
shop, and checkoff
83 Testimony of Revitte Parker, the Union's spokesman, could not
recall whether any reasons were given by the Company at this time
13 As early as June 11, the Union revealed that it was "not wedded"
to a 3-year contract or to a union shop
174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent relies on Board cases which hold
that an employer may insist on a contract term ex-
piring with the certification year where it has a
good-faith doubt of the union 's majority status.64
However, as indicated earlier herein , Respondent
had no valid basis ' for such a good-faith doubt. It
unlawfully supported the open shop committee,
which supplied it with the employee petitions osten-
sibly to show the Union 's lack of majority.
Moreover , testing Respondent 's position as of April
16 when it was first advanced ,65 and especially in
light of the recency of the Board certification, the
evidence asserted by Respondent could not justify a
reasonable doubt that the Union had lost its majori-
ty. Indeed , the purposes of the Act would be sub-
verted if an employer in these circumstances were
permitted to establish a defense of good-faith doubt
predicated upon purported results which it unlaw-
fully helped to create . Having adopted this posture
practically from the beginning of negotiations,
Respondent accordingly shaped its proposals to the
brief contract term it proposed . And indeed, as I
find upon the evidence , it consciously prolonged
the bargaining as to foreshorten the remainder of
the certification year.
2. Union security
As with the issues of contract duration, virtually
no change took place in the negotiations on union
security from the date the Respondent's proposal
was presented , on April 16, until the private meet-
ing with the mediator on July 29, during the course
of the strike. At such time , Respondent generally
suggested that it might agree to "maintenance of
membership with some kind of safeguards." On
September 26, at the meeting before the end of the
strike, this proposal was placed on the table and
spelled out . 66 Most of Respondent's reasons for es-
pousing the open shop were substantially the same
as those advanced on contract duration. These in-
cluded an alleged lack of majority support for the
Union and the open shop petitions . On several oc-
casions, Respondent stated it was opposed to a
union shop as a "matter of principle."" And on
July 22, it emphasized such opposition while in-
dicating that it did not ( affirmatively ) have to have
an open shop . On checkoff, it stated that this issue
was tied to union security.
My finding is that Respondent 's position was not
taken in good faith . While it was certainly under no
compulsion by virtue of the Act to make a conces-
sion for the adoption of any kind or degree of union
security , it was required fully, fairly , and in good
faith to negotiate on this issue , as well as all others,
in a sincere effort to reach a collective -bargaining
agreement with the Union . However , on this sub-
ject as on contract duration , Respondent's
proposals were squarely centered upon a purported
doubt that the Union was the majority representa-
tive . Again , the issue must be judged as of the time
Respondent took its original stance; i .e., April 16.
Thereafter , defections from the Union and converts
to the open shop are properly attributable to
Respondent 's unfair labor practices . A factor to be
considered is the knowledge by the office clericals
of the contract conditions enjoyed by the hourly
employees in the plant.
3. Management rights
On April 16 , Respondent initially submitted
other written proposals , including an exhaustive
management rights provision, copy of which is at-
tached hereto as Appendix B. Certain of the clauses
are as follows : "Nothing in this Agreement shall be
construed to limit in any way the Company's sole
right to"-
subcontract or purchase any or all work and
products , including maintenance and repair;
discontinue temporarily or permanently, in
whole or in part, any of the Company 's opera-
tions;
sell, close , or move plants;
determine the size of work force and increase
or decrease its size , to hire , and lay off em-
ployees;
" Citing Lloyd A Fry Roofing Company , 123 NLRB 647 But see
also, e g , N L.R.B v My Store , Inc, 345 F 2d 494 (C A 7), cert
denied 382 U S 927, N L R B v W R. Hall Distributor , et al, 341
F 2d 359 (C A 10), Solo Cup Company v N L.R B , 332 F 2d 447
(C A 4)
65 Revitte expressed his doubt of the Union 's majority even at the first
bargaining meeting , supra It is also noted that in a letter to the employees
on July 3 , President Rice asserted that , "shortly after the election on
January 25 , a majority of the employees indicated they no longer wanted
representation by the Union "
6' In substance , Respondent proposed that maintenance of membership
would "start from scratch ," covering only present employees who are
union members 30 days after contract execution , and new employees
who erect to join the Union 30 days after hire , but any employee could
withdraw from membership upon 60 days notice to the Company and the
Union For its part, the Union proposed a modified union shop, under
which all employees who previously signed cards must remain members
for the life of the contract, those who had not signed cards could refrain
from joining , all new hires would be required to join after 30 days, and
any member could withdraw within the last 15 days of the contract
67 Respondent also mentioned at various times that valuable employees
had said they would quit rather than be forced into joining a union, and
that it was afraid it would experience difficulty in recruiting new em-
ployees
66 Respondent did not entirely clarify the "principle" to which it ad-
verted As noted , a union -shop provision was in effect in the production
and maintenance contract At one point it said the union shop took away
the right of employees who did not want membership in the Union How-
ever , it has long been established that , under a valid union-shop contract,
employees are not required to become union members, at the penalty of
discharge , if they tender the equivalent of periodic dues and initiation
fees See N .L R B v Genera l Motors Corporation , 373 U S 734, 741-
744
THE UDYLITE CORP. 175
reduce the workweek or workday;
hire part-time and temporary employees, or
contract for services of temporary employees;
transfer work out of the bargaining unit to
nonunit employees;
establish, change, combine, or discontinue de-
partments;
establish, change, combine, or discontinue job
classifications;
establish wage rates for any new or changed
classifications;
determine number of hours to be worked;
transfer, promote, and demote employees from
one classification, department, or shift to
another;
select employees for promotion or transfer to
other positions outside the bargaining unit;
require employees to perform work outside
their assigned job classifications, regardless of
availability of work in their regular classifica-
tions;
nothing shall limit in any way the right of su-
pervisors to perform work.
It is not for the Board to pass upon the desirabili-
ty of substantive terms of labor agreements .69 Yet,
the Board must take some cognizance of the
reasonableness of the positions advanced during
bargaining negotiations to determine whether a par-
ty's conduct evidences a real desire to come into
agreement.70
Any construction of Respondent's management
rights proposal readily reveals a rejection of the
collective-bargaining principle in that it demands
an abdication by the Union of its meaningful
representative status.71 (Indeed, the unilateral ac-
tions of Respondent earlier described appear to
conform with this approach on management
rights.) Respondent must have been aware that the
Union, or any self-respecting union, could not ac-
cept such a contract provision or justify it to the
employees it is statutorily required fairly to
represent.72
Until after the strike of June 28 there was vir-
tually no discussion on the subject of management
rights. On June 26, the Union indicated it was a
"waste of time" to consider Respondent's proposal,
and on July 25, that this proposal "negated the con-
tract." As of July 29, on its own initiative, Respon-
dent submitted a greatly reduced and revised
proposal. After discussions and further revisions, on
September 12 the parties initialed their agreement
to a clause on this subject, a copy of which is at-
tached as Appendix C. The eventual agreement on
such a clause does not resolve the question of good
faith or render it moot.
The aspect of bad faith which I find lies in
Respondent's purpose in advancing its original
management rights proposal. It knew that the
proposal could not seriously be considered, that it
stood as an affront to the Union, and that it was a
roadblock to consummation of any final agreement.
This proposal was also consistent with Respon-
dent's efforts to curtail the Union's existence and
effectiveness on the scene-as with its insistence
upon a short-term contract. Such a proposal could
not be excused as merely a tactic in the negotia-
tions , in light of all the circumstances. At the very
least it is clear that the submission of this proposal
comports with Respondent's efforts generally to en-
gage in bargaining delays.
4. Supplying requested bargaining data
It has long been settled that, upon reasonable
request, the employer is required to furnish the
union with information which is relevant and neces-
sary to enable the union to conduct bargaining
negotiations in an intelligent and effective manner.
Wage and related data, as the core of the employer-
employee relationship, are presumptively rele-
vant.73
By letter dated February 8, hand-delivered to
Respondent at the first bargaining session, the
Union requested information concerning eligible
employees in the unit, inter alia: dates of hire, job
titles, narrative job descriptions, job evaluation fac-
tors, individual salary rates, labor grades, rate
ranges, automatic progression rules, type of salary
arrangement, and the names and dates of new em-
ployees hired since the voting eligibility date.
Revitte stated he would try to have it ready by the
next meeting. On February 23, Respondent sub-
mitted to the Union, as stated in the covering letter,
"information which you requested." At this meet-
ing, Respondent verbally informed the Union that it
did not have job descriptions and, after the Union
mentioned these items, that it had not had the op-
portunity to assemble the information on job clas-
sifications and salaries. At this time, Respondent
supplied with its letter the names of employees ap-
0" N L R B v American National Insurance Co, 343 U S 395
10 N L R B v Insurance Agents ' International Union, AFL-CIO
[Prudential Ins Co ], 361 U S 477, N L R B v Reed & Prince Manu-
facturing Company, 205 F 2d 131 (C A 1)
11 E g., L L Majure Transport Co v NLRB , 198 F 2d 735 (C A
5), Alba-Waldensian , Inc, 167 NLRB 695
19 Ibid
13 E g , N L R B v Whiten Machine Works, 217 F 2d 593 (C A 4),
cert denied 349 U S 905, Curtiss-Wright Corporation v N L R B,
347 F 2d 61 (C A 3)
176 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pearing on the stipulated eligible voting list, infor- mission of and in failing to supply requested rele-
mation which the Union already had , but failed at vant data.
this or any later time to furnish the requested
names and dates of new hires . On March 27,
Respondent gave the Union a purported list of job
classifications with the general salary figures along-
side each title ; e.g., "Secretary II . 460, 477,
455, 505."74 As was sufficiently clear in its Februa
ry 8 letter ( i.e., individual salary rates ), the Union
again requested the name and salary for each unit
employee. Here Respondent questioned the need
for such information , stating that it was confidential
matter , but nevertheless agreed to supply it. On
April 8 and 16 this information was furnished. In
conjunction with the interim agreement on June 7
to restore Respondent 's merit increase program,
supra , the Union was to be informed , and re-
peatedly requested , the names of those employees
who were denied such increases after review. This
data was never supplied . On July 10 the Union
again sought the job descriptions , indicating that it
was told by employees that they, or their super-
visors , had made out such descriptions the previous
year . Revitte said that he had knowledge of
"questionnaires " which Respondent had sent out
(in 1967) and, upon the Union's specific request,
agreed to supply them . He generally testified that
this project by Respondent involving the "question-
naires" was never completed or utilized .75 On July
16, Respondent supplied the Union with about 60
completed forms entitled "Classification Position
Description " for particular employees , advising the
Union in a covering letter in effect that it does not
necessarily consider these "questionnaires" to be
complete or accurate . 76 I find Revitte 's explanations
unsatisfactory . No reason appears why Respondent
did not earlier reveal such data in its possession and
supply it , or offer to do so , in the same manner it
did on July 16 . However , in my opinion, Respon-
dent could well have brought these job descriptions
up to date , to the extent that any changes were
necessary , or made out new descriptions for such a
group of clerical employees , without any substantial
expenditure of time . 7 This type of information was
particularly pertinent to afford the Union an intel-
ligent basis for handling grievances in the interim,
such as Company changes in job content of classifi-
cations. Indeed , issues are presented of such uni-
lateral changes made by Respondent during the
course of the strike , infra. It is my view on all the
evidence that Respondent did not wish to supply or
be bound by such information in dealing with the
Union. Therefore , I conclude that Respondent vio-
lated Section 8(a)(5) by unduly delaying the sub-
1' Such classifications also appear as clerk typist I and III, and secre-
tary A, 1, 11, and III
15 On July 10 , Revitte told the Union that no effort was made to
determine if all the "questionnaires " which were sent out were returned to
Respondent
16 General Counsel introduced a memorandum dated June 12, 1967,
from Revitte to a "Steno-Secretary " stating, e g "All positions are re-
viewed and evaluated periodically to make certain you receive com-
5. The bargaining meetings and negotiations
In the ultimate conclusions to be reached and the
remedies recommended, it is not necessary to trace
the course of bargaining on each subject or to
describe all of the extensive detail contained in this
record. All the evidence has been considered, as it
must be, on the question presented of general bad-
faith bargaining.
For the Union, the chief negotiator was Interna-
tional Representative Clifford J. Parker, present at
all but one of the meetings. He was accompanied
by a committee, usually of six or seven employees.
For the Company, the chief negotiator was Fred
Schwarze, who attended most of the meetings. He
was usually accompanied by Revitte, one other
management official, and sometimes another attor-
ney. Parker and Revitte were the principal wit-
nesses for each respective side. At the first meeting,
on February 8, largely confined to introductory
matters, the parties agreed to use the "Chrysler"
formula-under which the Union would present its
position verbally, and the Company then would
draft the language . However, it is apparent that this
approach was largely abandoned following the first
few bargaining sessions.
As noted, 35 formal bargaining sessions were
held, commencing February 9. It does not appear
that substantial progress was made in agreements
on substantive terms until the latter part of June,
and more especially in September. In the early
months of bargaining some provisions of relatively
minor importance occupied the parties at length.
For example, no agreement was reached on the
"witnesseth" clause until June 21, on the number of
union stewards or representatives in the plant until
June 27, and on bulletin boards until September
12.78
Under Section 8(d) of the Act, the duty in bar-
gaining negotiations is explicitly placed upon the
parties-"to meet at reasonable times and confer in
good faith." The record indicates some instances of
tardiness, delay, and postponement by both parties
for legitimate reasons . On the total evidence, how-
ever, only the Respondent is found to have
breached the good-faith requirement to meet at
reasonable times . Although the statutory obligation
to confer is bilateral, it was the Union which con-
sistently took the initiative in seeking to meet more
frequently, and the Respondent resisted such over-
tures. Further, as reflected elsewhere in this Deci-
parable pay for comparable work Positions which are comparable in
responsibility and complexity are assigned the same grade and salary
range "
11 Regarding the secretaries, for example, Revitte admitted that they
differ only as to the level of the individual for whom they work
71 A summary index prepared by Respondent showing dates of pro-
posals and agreements on certain subjects is attached hereto as Ap-
pendix D [omitted from publication]
THE UDYLITE CORP.
sion , Respondent consciously sought to prolong the
negotiations as to run out the time of the certifica-
tion year . In the following specific instances, I find
the delays caused by Respondent were lacking in
good faith and unjustified : ( a) Accounting for the
lapse in meetings between February 23 and March
27, Respondent stated that it did not have the time
because it was engaged in contract bargaining for
the production and maintenance employees. (b) At
the end of May, Respondent 's reason was that it
was bargaining with a union representing em-
ployees at its plant in another city. (c) Until June
25, Respondent refused to meet more than twice a
week , even though it was informed on May 27 of
the Union 's strike deadline of June 28 . 79 The Union'
requested more constant bargaining , every day if
necessary, to attempt to reach agreement by June
28. (d) During the strike , the meetings were
scheduled by a Federal mediator upon separate
consultation with each party. On July 10 , the Union
urged "successive meetings ." At the July 22 ses-
sion, Respondent stated the position that it is
"willing to meet any time progress can be made,"
and it cannot see any signs of progress based on the
Union 's current attitude . 80 A scheduled meeting for
August 14 was canceled by Respondent, and no
meetings were held between August 9 and Sep- ;
tember 3 .81 I attribute this delay to the fact that
Respondent 's hourly employees had gone out on
strike as of August 14. This was no valid reason to
delay or cease bargaining with the Union concern-
ing the clerical employees, especially during their
strike . ( e) On November 21,82 the Union requested
that the parties continue to meet until they arrived
at an agreement . Respondent responded by asking
if the Union had anything new to offer to get things
going . The Union then suggested weekly meetings
on Thursday, but Respondent agreed only to the
next Thursday and "would see " about further
meetings . (f) The next meeting was held on
December 10. At the further session on December
17, among other things , Respondent agreed to
prepare a new proposal on temporary and part-time
help-an issue long in controversy . According
to Respondent 's minutes ,83 the meeting was con-
cluded with Respondent 's statement : "As long as
" On May 14 Respondent was admittedly aware that a stoke vote
had been taken
80 Respondent could not set itself up as the arbiter of "progress" at a
bargaining meeting , presumably dependent upon the success of its own
objectives , and utilize such a means of control over available time for
bargaining A H Belo Corporation , 170 NLRB 1558 (TXD)
"' By letter to President Rice, the Union objected to Respondent's
refusal to schedule meetings except on a casual basis and demanded
daily meetings beginning August 8
82 Contrary to Respondent , I do not view the delay in meeting, after
abandonment of the strike , from October I to November 21, as a refusal
to meet, or as indicative of bad faith , by the Union
81 The Union introduced no minutes after the September 26 meeting,
preceding the end of the strike The minutes of Respondent include
meetings on October 1 , November 21 and December 10 and 17 Neither
side adduced testimony on the meetings after October 1
177
Union is back on original position [ on union shop
and length of contract ] '114 Company sees no future
in continuing these useless meetings . Company
willing to consider Union proposal on classifica-
tions if Union wants to put one together, but until
then no sense continuing ." No further meetings
have been held.85 In consideration of the manner
in which Respondent concluded the December 17
meeting , and of its general resistance to scheduling
bargaining meetings as already shown , I place the
responsibility on Respondent for cutting off
negotiations , and the burden on it for initiation of
further meetings.
G. Unfair Labor Practice Strike
It is found , at least as major factors , that Respon-
dent 's general failure to bargain in good faith and
its unfair labor practices committed before and dur-
ing the strike , as delineated above , clearly caused
and prolonged the strike . Therefore , Respondent
was obligated to reinstate the strikers to their
former or substantially equivalent positions upon
their unconditional application at the end of the
strike , and to discharge, if necessary , all replace-
ments hired during the strike."'
H. Failure to Reinstate Strikers
The complaint alleges that Respondent dis-
criminatorily refused to reinstate 10 named em-
ployees after their unconditional application follow-
ing the termination of the strike . At the bargaining
session on Septemebr 26, the Union advised
Respondent that a union meeting would be held
that evening at which it would be decided whether
to abandon the strike . A consideration affecting
such decision was whether Respondent would rein-
state all the strikers. The question was then directly
asked of Respondent whether it was willing to say
at this time that all the strikers can return to work.
After a company caucus, Respondent gave the fol-
lowing reply:
With the exception of Tuck I think the rest of
the employees could come to work Monday.
84 After failure of the attempt at settlement on September 26 the
Union in the few subsequent meetings , to the extent substantive terms
were discussed , reverted to this position Respondent itself offered no
change on union security or contract duration I cannot find that Re-
spondent believed that the Union would not accept the same compromise
offers it made on September 26, supra , or that an impasse was thereby
created
85 During opening statements at the hearing , the Trial Examiner in-
quired as to the current status of bargaining Union counsel replied that,
since the last meeting, the Union has indicated its willingness to meet at
reasonable times with Respondent Respondent counsel answered that if
the Union had requested bargaining prior to the expiration of the certifica-
tion year, Respondent would have complied , but that no such request
was made
80 Mastro Plastics Corp v N L R B, 350 U S 270
178 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The 9 or 10 we have named here we would be
willing to negotiate their status with the Union
and determine what should be done upon their
return and we feel something could be worked
oUt.87
At the following meeting on October 1, the
Union gave Respondent a letter stating that the
strike was ended and that an unconditional applica-
tion for immediate return to work was made on be-
half of all the strikers, specified on an attached list.
Respondent then handed the following:
COMPANY POLICY ON REINSTATEMENT
1. All striking employees may apply for
reinstatement to their former positions without
discrimination and with the full benefits
heretofore put into effect for non-strikers. Ap-
plications will be accepted to the close of busi-
ness on Monday, October 7, 1968, after which
it shall be presumed that those employees who
fail to apply do not desire to return and they
shall be terminated.
2. The Company will place applicants in
their former position or substantially
equivalent positions, if available. If not availa-
ble, they will be offered any open jobs which
exist for which they are qualified. Those not
placed will be put on a preferential hiring list.
3. Commencing on or after October 8,
1968, at the request of the Union, the Com-
pany will negotiate with the Union as to em-
ployees not reinstated to their former positions
or positions substantially equivalent thereto.
4. This shall not apply to Gerald Tuck who
will not be reinstated because of picket line
misconduct.
On October 2 (Wednesday), all striking employees
reported at the plant ready to begin work, with the
exception of Allard and Kozlowski, infra, and
Gerald Tuck, who had theretofore been notified of
discharge by Respondent.
Regina Guy, part-time multilith operator (24
hours a week ) and Helen Giuliani, addressograph
operator, were interviewed by Revitte. They were
told that their jobs had been "consolidated," and
they would be called if any job openings occurred
in the future. Jean Lockhart, part-time multilith
operator (24 hours a week) was also denied rein-
statement . Revitte testified that one employee was
hired on September 3, as a full-time multilith
operator, and in the latter part of September a
management decision was made that this employee
could do all the multilith and addressograph work,
replacing Guy, Giuliani, and Lockhart. Catherine
Facer, a switchboard receptionist, was not rein-
stated . Freda Kurzhals , receptionist and relief
switchboard operator, was told by Revitte that she
was replaced and that Respondent now had three
switchboard operators doing the switchboard and
receptionist work previously done by four em-
ployees.88 After receiving such advice from Revitte,
she requested and was granted leave to take her ac-
crued vacation of 7 workdays. On October 14, she
was reinstated to a different job, as a clerk in the
order department. Gayle Allard, a secretary in
production planning, reported on October 3 or 4
but was not reinstated until October 18. Marie
Valice reported on October 2, and on October 8
was reinstated to a different position . Roy Fischer,
a "first aid man," reported on October 2 and was
denied reinstatement , allegedly on the ground that
his job had been eliminated and replaced by the
employment of a "registered nurse." Helene E.
Kozlowski, a clerk typist, called in sick on October
2 and reported for work on October 3. Revitte told
her she had been replaced during the strike. Later
in October, she applied to Revitte for her equity in
Respondent's profit-sharing plan, as she had a debt
owning the credit union in the plant. To obtain
such money, she was required under the plan to ex-
ecute her resignation from employment, which she
did. In late November, she told Revitte she wished
to cancel her resignation , and at the same time she
sought reinstatement. Revitte advised her that her
resignation had been accepted and she could not be
reinstated. On December 3, she received the check
for profit sharing.
Conclusions
On September 26, Respondent agreed that all
strikers , excepting Tuck, could report for work on
Monday ( September 30), as tentatively offered by
the Union . Before it made such commitment, it was
made explicit to Respondent that reinstatement was
a particular factor to be considered by the strikers
at their scheduled meeting that evening on the
question of whether to call off the strike. In the
discussion on September 26, Respondent men-
tioned , without elaboration , some reservation as to
job placement for 9 or 10 returning strikers, but
that some arrangement with the Union can be
worked out-" in the meantime to determine what
should be done when they arrive ."89 However,
there is no showing that any arrangement was at-
tempted to be worked out before October 1, when
Respondent, upon formally being apprised that the
strike was over , handed the Union its " Policy on
Reinstatement ." In this statement , Respondent de-
parted from its commitment on September 26 that
all strikers , excepting Tuck, would be given jobs
when they report to work . As above indicated,
" In the Respondent 's minutes , it is stated "Company stresses that
outside of Tuck, all else could have a job "
" Revitte stated that Kurzhals was a full-time receptionist before the
strike, and that she was replaced by Barbara J Waggoner, who was a re-
lief switchboard operator Waggoner testified she was a full-time switch-
board operator, employed since August 1967
89 From Respondent ' s minutes
THE UDYLITE CORP. 179
when they did report to the plant, the nine em-
ployees described above were flatly denied employ-
ment on the grounds that they were replaced or
their jobs eliminated. Allard, Valice, and Kurzhals
were given jobs on later dates. The rest were not
thereafter reinstated. In the final bargaining
meetings on and subsequent to October 1, the
discussion mainly involved these issues of failure to
reinstate. I find that such discussion took place only
after the decision had been made not to reinstate
the nine strikers, above. Respondent's contentions
are rejected that essential and legitimate changes
were made during the strike permanently affecting
the regular job classifications of switchboard opera-
tor, receptionist, multilith operator, addressograph
operator, and first-aid man. Only the generalized
testimony of Revitte and the new multilith-addres-
sograph operator was introduced. These changes
were not shown to have been made for true
technological or effeciency purposes rather than for
the expedient shifting of clerical duties during the
strike to accommodate striker replacements.80 On
this record, I conclude that the real reason for
Respondent's position as to these nine employees
was an attempt to retain the striker replacements
and discriminatorily deny jobs to returning unfair
labor practice strikers.91 It is found unnecessary to
pass upon the further allegation that Respondent
acted unlawfully during the strike in effecting
changes in the job content of existing classifica-
tions. Finally, because they were unfair labor prac-
tice strikers, apart from other considerations, I find
these nine named employees, above, were entitled
to their former or equivalent jobs on the date they
appropriately applied for work after the strike-
with the discharge of their replacements if necessa-
ry.
Gerald D. Tuck, Jr., received notice from
Respondent by telegram on October 1 that he was
disch^rged'82 without reason given. In the discus-
sions, the Union was merely informed that the
reason was strike misconduct. Revitte testified that
he made the decision on October 1 based on state-
ments he received from individuals, and interviews
with these individuals.93 The statements, in
evidence, are substantially as follows: On Sep-
tember 10, from Supervisor Del Buttrey (who did
not testify) that he noticed Tuck "very rudely lear-
ing through the windshield at the women's legs
when they were stopped by traffic," and would also
make a "horrible noise and expression." On August
14, from four female employees (who did not testi-
fy) that Tuck and other (unidentified) men rocked
and beat on their car. On July 26 and 31, from
seven individuals (none of whom testified) that
Tuck squirted them with a water gun. A letter
dated August 20 from Attorney English informing
Revitte of a complaint from his client employees
that, on June 28, Tuck jumped on the hood of an
automobile driven by an employee, Mary A. Baas,
used "foul language" addressed to her, and that the
event was witnessed by Puckett, Fronimos, Elwart,
LaRonde, and King (of whom only King testified).
At the hearing, Respondent's counsel stated as an
affirmative defense on the discharge of Tuck the
same grounds as appear in the above-described
statements. Revitte made no attempt to question
Tuck or obtain his version of the facts.
Concerning Tuck's use of a squirt gun, Respon-
dent produced George L. Morningstar, who was not
among those who gave the statements above. On a
day in July, at 5 p.m., Morningstar was driving his
car and stopped at the picket line. Tuck squirted a
liquid into the car which struck his eyeglasses. He
pulled off and stopped on the road because his eyes
began to "smart a bit," and he "couldn't see to
judge" the handling of the car. The stinging lasted
about an hour, and he had "no idea" what the
liquid was. Tuck testified that, for 3 or 4 days on
the picket line, he used a squirt gun with water. It
was shown that strikers and nonstrikers used water
guns on the picket line.94 Theresa Wosniak, a
striker, squirted Supervisor Munro and was not
punished. Revitte testified that he observed one in-
cident when water was thrown at the pickets and he
took no discharge action . It is my opinion and find-
ing that Morningstar exaggerated his testimony in
that he knew the substance squirted by Tuck was
water. It is also clear that his car was at a standstill
when the incident occurred, and that he could then
have wiped his glasses before proceeding.
Kathleen Tupper and Stanley A. King testified
for Respondent concerning the incident on August
14 involving the small car, a Corvair, driven by
Mary Baas . Tupper stated she was seated in the
front of the car on the right side of Baas . They had
stopped the car for "quite some time" because
pickets were walking in front of the car. A large
number of them95 gathered around the halted car.96
She observed Tuck (but not any of the others)
lighting matches and putting them toward the gas
tank (at the left front fender near the driver). She
testified that Baas "stepped on the gas, and that is
when he [Tuck] flew around in front of the car,
90 Particularly as to unfair labor practice strikers, it was Respondent's
burden clearly to establish unavailability of jobs on such grounds
"Inter alia, the evidence is noted that, immediately prior to the strike,
on June 27, Revitte offered Kurzh'ls a full-time receptionist job at a
salary raise, as compared with Respondent's poststrike assertion of a
discovery that it could dispense with such a classification
9Revitte's testimony that the decision was not made until October 1
appears directly in conflict with the statements of Respondent concerning
Tuck at the September 26 bargaining session
93 Revitte testified that this evidence "constitutes everything" on which
he relied
"Also admitted by Respondent at the hearing.
95 These appeared to have been mainly production and maintenance
employees, then on strike
98 On a leading question, to which objection was sustained, she testified
that Tuck attempted to shake the car, and on a later question, her answer
was that she did not know.
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and then he got mad. I guess he thought we hit him
or something. And he jumped up on top of the car
and started jumping on it, and then he jumped off
and we just drove away."97 She has no knowledge
whether the car was damaged. Especially when he
was jumping on the car, Tuck was yelling "every,
swear word you could think of "98 King testified
that he had stopped his car behind the Corvair and
observed the incident in question. Several of the
pickets were lighting matches, including Tuck, and
putting them near the gas cap. Tuck "wheeled back
in front" as the car started moving. He "couldn't
really see" if the car hit Tuck; it did not appear that
it hit him; if it did hit him, he, Tuck, did it
deliberately as he stepped right in front of the car.
However, "it did knock him down. "99 Tuck then
jumped up on the hood and stamped on it with his
feet.
Tuck denied that he lighted any matches at or
near the gas tank of the Corvair or that he saw any-
one else do so. He is credited, as the evidence on
this type of self-endangering, and presumptively im-
plausible conduct would have to be far clearer than
this testimony presented by Respondent.' He
testified that, as the Corvair approached, he moved
to let them through. However, they stopped, rolled
down the car windows, and were talking to one of
the pickets. The next thing he knew was that the
car hit him and threw him against the hood, lying
down. He was "quite mad," jumped on the hood,
and kicked it one time. Tuck's account of the in-
cident is accepted.
With respect to the latter incident, an important
element in his favor was the intuitive reaction and
natural provocation of Tuck in being struck by the
car. Particularly as an unfair labor practice striker,
I find that Tuck's picket line conduct, as to the
water squirting and the car incident, while not con-
doned, was not so flagrant as to warrant his dismis-
sal.2
No testimony was adduced by Respondent con-
cerning the car rocking and "learing" allegations
contained in the statements given Revitte,
described above. In light of all the circumstances
revealed in this case, I cannot find that Revitte had
a reasonable basis for a good-faith belief that Tuck,
engaged in such conduct.3 Assuming arguendo that
he did, in the vague circumstances of the unsworn
statements , I conclude that these incidents do not
87 Then changing her testimony , she said that while Tuck was on the
hood, she told Baas to go, and "she stepped on the gas and he jumped
off " Again on cross-examination , she testified that after Tuck had thrown
a couple of matches at the gas tank , she told Baas to go , and she stepped
on the gas while Tuck was in front In a further contradiction, she indi-
cated she did not actually see where the matches were being dropped but
"believed" Baas who said it was near her gas tank
88 Specifying later that it was "everything everybody else was saying",
e g , "bitches " and "damn it "
se King's affidavit states that the car did hit Tuck Confronted with this
statement , he added that- "it didn't knock him down "
i Respondent did not assert reliance on lighting of matches at the gas
tank as reason for the discharge
2 E.g., N L.R B v Thayer Company, 213 F.2d 748 (C.A 1), cert
constitute such egregious misbehavior in the unfair
labor practice strike as to justify his discharge.4
1. Further Unilateral Wage Action
As of March 1, 1969, Respondent instituted a
further increase of $8 per month in cost-of-living
allowance without notifying or consulting with the
Union.5 While no further bargaining between the
parties took place since December 17, this alone
does not establish that an impasse existed then or at
any subsequent time. However, even assuming such
an impasse, I find that it was caused by Respon-
dent's failure to bargain in good faith and therefore
cannot stand as justification for the unilateral con-
duct in question.'
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section
III, above, occurring in connection with the opera-
tions described in section I, above, have a close, in-
timate, and substantial relationship to trade, traffic,
and commerce among the several States and tend
to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in
certain unfair labor practices, I shall recommend
that it cease and desist therefrom and take certain
affirmative action designed to effectuate the poli-
cies of the Act. In my opinion, a broad cease-and-
desist order is warranted in particular view of the
discriminatory conduct and the serious nature of
the numerous other violations committed.7
It has been found that Respondent, in violation of
Section 8(a)(5), engaged in unilateral actions in
disregard of the Union's statutory bargaining status
by discontinuing its merit increase program and by
announcing and granting increases in wages and
cost-of-living allowance. It will, therefore, be
recommended that Respondent cease and desist
from such unlawful conduct and from unilaterally
changing any other other terms or conditions of
employment without notifying and consulting the
Union. In violation of Section 8(a)(3), it has been
denied 348 U.S 883, Local 833, International Union, United Auto-
mobile, Aircraft and Agricultural implement Workers of America
[Kohler Co.], 345 F 2d 748 (C A D C ), cert denied 382 U S 836
8 See Rubin Bros Footwear, Inc, 99 NLRB 610, 611, cf N L.R B
v Burnup & Sims , Inc , 379 U S 21
4 Thayer and Kohler cases, supra
5 It is noted that , in Respondent 's bulletin of April 4, 1968, to all
unrepresented salaried employees , supra, it promised an increase of $5
a month in March 1969. On February 17, 1969, in a general bulletin to
employees announcing the increase effective March 1, 1969, Respondent
referred to its bulletin of April 1968
6 E.g ,Northland Camps, Inc, 179 NLRB 36
i N L R B v Express Publishing Company, 312 U S 426, N L.R B
v Entwistle Mfg. Co, 120 F 2d 532 (C A 4)
THE UDYLITE CORP. 181
found that Respondent discriminatorily withheld
merit increases from Helene E. Kozlowski, Marcel-
la J. Scarborough, and Kay V. Schneider to deter
these employees from participating in protected
strike activities. It will be recommended, therefore,
that Respondent cease and desist from such dis-
criminatory conduct and, affirmatively, to make
whole the affected employees for any loss of
earnings as a result of such discrimination.'
In violation of Section 8(a)(5), it has been found
that, in specific respects and generally, Respondent
engaged in bad-faith bargaining with the Union as
the certified bargaining representative of clerical
employees in the appropriate unit. It will, therefore,
be recommended that the initial year of the certifi-
cation be extended to begin on the date Respon-
dent commenced or commences to bargain in good
faith with the Union, so as to insure that the unit
employees be accorded the services of their
selected bargaining representative for the period
provided by the law.9
It has been found that Respondent, in violation of
Section 8(a)(3), refused to reinstate or terminated
10 unfair labor practice strikers named in the com-
plaint. It will, therefore, be recommended that
Respondent offer to these individuals, except Roy
Fischer, deceased, immediate and full reinstate-
ment to their former or substantially equivalent
positions, without prejudice to their seniority or
other rights and privileges, and make them whole
for any loss of earnings suffered by reason of their
unlawful termination, by payment to them of a sum
of money equal to that which they normally would
have earned from the date of their discrimination10
to the date of Respondent's offer of reinstatement,
less net earnings during such period, with backpay
computed on a quarterly basis in the manner
established by the Board in F. W. Woolworth Com-
pany, 90 NLRB 289. On all backpay recommended
herein, interest shall be included at the rate of 6
percent per annum, as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. In order to make
room for the reinstatement of these unfair labor
practice strikers, as specified, Respondent shall
discharge, if necessary, any replacements hired dur-
ing the strike.
It is evidenced that Respondent refused and
failed to pay the wages of the employee-members
of the Union's negotiating committee during the
time they were engaged in contract bargaining with
Respondent. As the circumstances are essentially
the same, it is recommended that, for the reasons
stated by the Board in M.F.A. Milling Company,
170 NLRB 1079, Respondent shall reimburse such
employees for the wages they lost while attending
negotiating sessions," with interest at 6 percent per
annum.
It will also be recommended that Respondent
abrogate, and return to the signatory employees,
the individual employment agreements they were
unlawfully required to execute; to destroy all its
photographs and photograph negatives taken of
strikers during the strike; and to expunge from all
files, and records the names of strikers taken down
during the strike-as such matter in the possession
of Respondent remains as a potential threat of fu-
ture reprisal in the minds of the strikers.
Further, it will be recommended that Respondent
preserve and make available to the Board, upon
request, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary and useful to deter-
mine the amounts of backpay due and the rights of
reinstatement under the terms of these recommen-
dations.
Upon the foregoing findings of fact, and upon the
entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union and Local 889, UAW, are labor
organizations within the meaning of Section 2(5) of
the Act.
3. All office clerical employees at Respondent's
place of business at Warren , Michigan , including
regular part-time employees , but excluding techni-
'Although it appears generally that, after the strike, Kozlowski,
Scarborough, and Schneider received merit increases retroactive to a
date preceding the stoke, it does not obviate the necessity for an affirma-
tive order, particularly for reasons of accurate computation, to be deter-
mined in the compliance stage of this proceeding
9E g , Mississippi Wood Preserving Company, 173 NLRB 1370,
Ray Brooks v N L R B, 348 U S. 96
10 For the reasons earlier indicated herein, the date of the discnmma-
tion occurred when these strikers reported for work at the plant on
October 2, except as to Tuck, who was discharged on October 1, Koz-
lowski, who called in sick on October 2 and reported on October 3 (the
particular date of discrimination left to compliance), and Allard, who
reported on October 3 or 4 At Kurzhals' request, she was permitted to
take her 7 days of accrued vacation On December 1, she was offered
reinstatement to a different job. An appropriate amount shall be deducted
from her backpay if she received regular pay for such vacation Kurzhals
and Valice were reinstated to different jobs, and it shall be determined in
the compliance stage whether such jobs are substantially equivalent
Kozlowski's testimony supports the finding, which is made, that she
suffered economic hardship as a result of the unfair labor practice strike
and the discriminatory refusal of Respondent to reinstate her upon her
application She later submitted her resignation solely for the purpose of
obtaining her profit-sharing funds, but withdrew her resignation before
receiving such funds In the circumstances, I find that Respondent has
not affirmatively shown by objective evidence that Kozlowski abandoned
her interest in the job, or that it was equit