National Grinding Wheel Co, Inc.

In the Matter of NATIONAL GRINDING WHEEL COMPANY, INC. and DISTRICT 50, UNITED MINE WORKERS Or AMERICA, LOCAL 12419, A. F. or L. Case No. 3-C-943.-Decided January 01, 1948 Mr. Francis X. Helgesen, for the Board. Mr. Edward D. Flaherty, of Buffalo, N. Y., and Weber, Schank, Baumler c Trost, by Mr. Howard Schank, of Buffalo, N. Y., for the respondent. Mr. Angelo P. Taibi, of Niagara Falls, N. Y., for District 50. DECISION AND ORDER On February 25, 1947, Trial Examiner Charles E. Persons issued his Intermediate Report in the above-entitled proceeding, finding that the respondent, National Grinding Wheel Company, Inc., had engaged in and was engaging in certain unfair labor practices and recommend- ing that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto 2 The Trial Examiner also found that the respondent had not engaged in certain other unfair labor practices and recommended dis- missal of the complaint as to them. Thereafter, the respondent and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions and briefs filed by the respondent and coun- sel for the Board, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations, with the exceptions noted below : 2 The power of the Board to issue a decision and order in a case such as the instant one where the charging union has not complied with the filing requirements specified in Sec- tion 9 ( f), (g), and ( h) of the National Labor Relations Act, as amended , was decided by the Board in Matter of Marshall and Bruce Company , 75 N L R B 90. 2 Those provisions of Section 8 (1) and (5) of the National Labor Relations Act which the Trial Examiner herein found were violated, are contained in Section 8 (a) (1) and: Section 8 (a) (5) of the Labor Management Relations Act, 1947. 75 N. L R. B., No. 112. 905 '9O6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. We find, contrary to the Trial Examiner, that the elimination of the rest or lunch periods was a proper subject of collective bargaining. Indeed, the respondent, in effect, conceded this when it originally bargained with the Union with respect to the establishment of these periods. However, we-are persuaded by the facts, fully recited in the Intermediate Report, that the respondent did consult with the Union with respect to their elimination and so conducted itself as to have fulfilled its obligation under the Act. 2. The Trial Examiner found that the respondent's proposal that tlui-d step grievance conferences be held in Buffalo was manifestly unreasonable and amounted to a refusal to bargain. We do not agree. While it is true that the respondent proposed that these conferences 'be held in Buffalo, approximately 14 miles from the plant, which pro- posal the Union rejected, the record discloses that the disagreement arose not because of the distance involved in meeting in Buffalo, but because the respondent had refused to pay for the employees' trans- portation and time lost. Moreover, at the hearing, the respondent -Offered to meet with the Union at any place, including the plant. We find, contrary to the Trial Examiner, that the respondent did not, in this connection, refuse to bargain collectively with the Union. For the reasons stated by us in the Marshall and Bruce Conipany -case, si1pr'a, and the Planzkinton Packing Company case,3 both of which involved a violation of Section 8 (5) of the Act, as well as non-com- -pliance by the charging union with the filing requirements specified in Section 9 (f), (g), and (h) of the Act, as amended, we shall not issue the recommended unqualified order that the respondent, upon request, furnish the Union with information in regard to pay rates and changes and adjustments therein such as will enable the Union to -discharge its functions as a statutory representative of the employees in the appropriate unit, but shall instead condition our order, in part, upon compliance by the Union with that section of the amended Act, -within thirty (30) days from the date of the order herein. 3. The Trial Examiner found. and we agree, that the respondent's i efusal to give employment to Davignon, Clench, and Heubusch upon termination of the strike was not violative of the Act. As set forth in -the Intermediate Report, on April 19, 1946, all the respondent's em- ployees participated in an economic strike arising out of differences between the Union and the respondent during bargaining negotiations. The strike continued until July 13, 1946, when the parties concluded aln agreement. Thereafter the respondent invited all striking employ- ees to return to work. However, when tine three complainants applied 4 ' 75 N L R B 241 6 Contrary to the Trial Examiner , we find that the evidence does not indicate that the •complamants conditionally applied for reinstatement. NATIONAL GRINDING WHEEL COMPANY, INC. 907 they were refused reinstatement for the stated reason that the respond- ent understood that they had "quit ." At that time , the complainants denied any intention of having quit the respondent's employ and as- serted that, notwithstanding their acceptance of other employment, they had intended to return to work upon termination of the strike. It is well settled under that Act that, although strikers run the risk,of being permanently replaced during an economic strike, an employer is nevertheless under a duty not to discriminate in regard to the reinstate- ment of such strikers because of their concerted or union activity.5 In certain instances , depending upon the particular circumstances in- volved, discrimination may be reasonably inferred from the employ- er's arbitrary and unexplained refusal to reinstate the strikers upon application. But in the present case, there is no warrant for such an, inference, for the record contains a credible non-discriminatory expla- nation for the respondent's refusal to reinstate the complainants. According to the testimony of Works Manager Russ , which we credit as did the Trial Examiner, the respondent understood from undis- closed sources that, during the strike, the three complainants had' obtained "permanent jobs" with other companies in the area and had. severed their employment relationship with the respondent, and the respondent therefore refused to give them employment because of its- outstanding policy "not to [hire] men away from other companies in the area." The fact that the complainants challenged the respondent's understanding that they had quit, goes to the reasonableness of the respondent's belief, but we are not prepared on the basis of the record- to find that the respondent could not have reasonably relied on its- outside source of information. Indeed, as set forth in the Inter- mediate Report, the testimony of Davignon and Clench shows, and- we find, that both unequivocally told their new employers that they, had severed their employment relationship with the respondent and' accepted new employment on a, permanent basis. While the testimony of Heubusch is somewhat equivocal, admittedly, as found by the Trial Examiner, lie gave his new employer the impression that he was doubtful as to whether he would ever return to the respondent's, plant because of general dissatisfaction. This testimony adequately established the reasonableness, if not the correctness, of the respond- ent's belief based on the information it had at the time in question. Our conclusion that the respondent did not violate Section 8 (3) of the Act does not necessarily depend on whether or not the coin- plainants actually severed their employment relationship with the respondent prior to their application for reinstatement, for the pre- scription in the Act against discrimination applies to applicants for c N L R 13 v Macbay Radio Go, 204 U S 333. 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment as well as to employees., In our opinion, whether the com- plainants be regarded as employees or applicants, the record fails to establish that the respondent denied them reinstatement in order to penalize them for their strike activity or to discourage self-organiza- tion among its employees. To the contrary, we are convinced and find from the record as a whole, as did the Trial Examiner, that Davignon, Clench, and Heubusch were refused reinstatement because the respond- ent reasonably believed that their reemployment would be contrary to its policy of not employing persons working elsewhere in the area.7 In reaching a contrary conclusion with respect to the issue of dis- crimination, Mr. Houston relies primarily on the Mid-Continent Pe- troleum Corp. (54 N. L. R. B. 912) and Fafnir Bearing Co. (73 N. L. R. B.1008) cases. But clearly, the Mid-Continent case is not apposite. In that case, the employer in effect conceded that certain strikers were being penalized- for their strike activity, but sought to avoid statutory liability on the ground that their strike activity amounted to "unlawful conduct" which disqualified them from invoking the protestation of the Act. Inasmuch as the alleged unlawful conduct was inseparably connected with the strike, the Board held that the employer's "defense has nothing to do with motive-a factor upon which alleged violations of Section 8 (3) ordinarily turn" (emphasis supplied), and that there- fore the employer must affirmatively establish that the strikers in question actually had engaged in such unlawful conduct. In the pres- ent case, the respondent's principal defense involved no question of "unlawful conduct" and therefore, in accord with the applicable de- cisional theory reiterated in the Mid-Continent case, we have given con- trolling weight to the respondent's motive.' Nor do we believe that our decision in the present case constitutes a departure from the holding and theory of the Fafnir case. It is axiomatic that issues of discrimi- nation, such as those raised here, must necessarily be decided on a case 8 Phelps Dodge Corporation v N L R. B, 313 U S 177 4 We also agree with the Tiial Examiner that Heubusch 's conduct on the picket line in refusing to permit an official of the respondent to enter the plant , as fully described in the Intermediate Report, would , therefore , in any event, provide justification for the failure to reinstate 8In the AAA Dental Laboratory case (41 N L R B 263), the employer refused to rein- state three strikers for the stated reason that they had engaged in a conspiracy during the strike to put the employer out of business The Board stated that certain testimony and an affidavit "lend credence to the respondents' contention that they refused to rein- state French because of a reasonable belief that French « as not a trustworthy employee. Moreover, whether or not the accusations in the affidavit, which mentioned French by name, were true, nevertheless we are persuaded by the record that the respondents believed the accusations to be true and were so motivated in denying French reinstate- ment ' (Emphasis supplied ) As to the other two stokers, the Board found that the respondents did not establish any reasonable basis for believing that they were engaged in any such activity" and, in view of their pi ominence in the Union, the employers' proven hostility toward the Union, and the failure to establish any reasons for refusing to rein- state the two strikers , concluded that theie was discrimination because of union activity and membership NATIONAL GRINDING WHEEL COMPANY, INC. 909 to case basis, depending upon the particular facts involved. Thus, in the Fafnir case, where we found no merit in the employer's explana- tion that lie refused to reinstate striker Bolduc because he had obtained a "quit-slip," the record showed, and the Board found, that the em- ployer had,also unlawfully refused to reinstate other strikers who had not obtained "quit-slips." In the present case, the respondent engaged in no coercive course of conduct and consequently, in the light of its credible explanation for denying reinstatement to the complainants, we find no substantial evidence in the record, and none has been alluded to in the dissenting opinion, to support a finding of discrimination. To the extent that our dissenting colleague relies on the Fafnir case as standing for the proposition that, subject to certain conditions not here present, a striking employee has an absolute right to be reinstated to his job, we feel that he is in error. For clearly, the "right [of a striker] to be reemployed upon the reopening of the plant or the termination of the strike," referred to in the Fafnir case, can be construed to mean only that a striker may not be denied work for discriminatory rea- sons. Otherwise, a striker would have more job security than a work- ing employee who, in the language of the Supreme Court,9 may be dis- charged "for any reason other than union activity or agitation for collective bargaining" (emphasis supplied). ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended , the National Labor Relations Board hereby orders that the respondent, National Grinding Wheel Company, Inc., North Tonawanda , New York, and its officers, agents , successors , and assigns shall: 1. Cease and desist from : (a) Refusing to bargain collectively with District 50, United Mine Workers of America, Local 12419 , A. F. of L., if and when said labor organization shall have complied, within 30 days from the date of this Order, with Section 9 ( f), (g), and (h) of the Act, as amended, as the exclusive representative of all its production and maintenance em- ployees, excluding watchmen, office and clerical employees, confidential employees, chemists, salaried employees, assistant foremen, foremen, and all other supervisors , by refusing to furnish information to Dis- trict 50, United Mine Workers of America, Local 12419, A. F. of L., in regard to pay rates and changes and adjustments therein; (b) In any other manner interfering with the efforts of District 50, United Mine Workers of America, Local 12419, A. F. of L., if and when 9 Associated Press v. N. L. R R, 301 U. S 103, 132 See also N L R. B. v Mackay Radio Co., supra. 910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD said labor organization shall have complied with the filing require- ments of the Act, as amended, in the manner set forth above, to nego- tiate on behalf of the employees in the aforesaid bargaining unit, as their exclusive bargaining agent. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act, as amended : (a) Upon request, and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, furnish District 50, United Mine Workers of America, Local 12419, A. F. of L., with information in regard to pay rates and changes and adjustments therein such as will enable District 50, United Mine Workers of America, Local 12419, A. F. of L., to discharge its func- tions as the statutory representative of the employees in the above- described appropriate unit; (b) Post immediately at its plant at North Tonawanda, New York, copies of the notice attached hereto and marked "Appendix A." 1" Copies of said notice, to be furnished by the Regional Director for the Third Region, shall, after being duly signed by the respondent's rep- resentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for'thirty (30) consecutive days there- after and also for an additional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act, as amended, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other inaterial; (c) Notify the Regional Director for the Third Region in writing, within ten (10) days from the date of this Order, and again within ten (10) days from the future date, if any, on which the respondent is officially notified that the Union has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (5) of the Act by eliminating lunch and wash-up periods, and by demanding that conferences with respect to grievances having reached the third stage under the established grievance procedure be discussed at a location unreasonably distant from the plant, be, and it hereby is, dismissed. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the respondent violated Section 8 (3) of the Act, be, and it hereby is, dismissed. 10 In the event that this Oider is enforced by decree of a Circuit Court of Appeals, there shall be inseited, before the words, "A DECISION AND ORDER" the words "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." NATIONAL GRINDING WHEEL COMPANY, INC. 911 APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees WE WILT NOT refuse to bargain collectively with District 50, United Mine Workers of America, Local 12419, A. F. of L., as the exclusive representative of all production and maintenance employees, excluding watchmen, office and clerical employees, con- fidential employees, chemists, salaried employees, assistant fore- men, foremen, and all other supervisory employees with respect to furnishing information to District 50, in regard to pay rates and changes and adjustments therein; provided said labor organ- ization complies, within thirty (30) clays from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. WE WILL NOT in any other manner interfere with the efforts of District 50, United Mine Workers of America, Local 12419, A. F. of L., to negotiate on behalf of the employees in the aforesaid bargaining unit, as their exclusive bargaining agent ; provided said labor organization complies within thirty (30) clays from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. WE WILL FURNISH DISTRICT 50, United Mine Workers of America, Local 12419, A. F. of L., upon request, information in regard to pay rates and changes and adjustments therein such as will enable said labor organization to discharge its functions as the statutory representative of the employees in the appropriate unit described below; provided said labor organization complies within thirty (30) clays from the date of the aforesaid Order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All production and maintenance employees, excluding watch- men, office and clerical employees, confidential employees, chemists , salaried employees , assistant foremen , foremen, and all other supervisory employees. ALL our employees are free to become or remain members of the above- named union or any other labor organization. NATIONAL GRINDING WHEEL CO_MIPANY, INC., Employer. Dated ---------- By ------------------------------------------- (Representative ) ( Title) 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD This notice must not be altered, defaced, or covered by any other material, and must remain posted for 30 clays from the date hereof, and also for an additional 30 days in the event of compliance by the Union with the filing requirements of the Act, as amended. MEMBER HOUSTON, dissenting in part: Clench , Davignon, and Heubusch were participants with their fellow employees in a strike for higher wages . Shortly after the strike began, and for an understandable reason-the need to support their families- they applied to other employers for work. Having been advised that employment would involve a relinquishment of their employment with the respondent, and it appearing that this condition was inflexible, they pretended agreement. Upon termination of the strike, and after an invitation by the respondent, they returned and requested that they be given their jobs. They were rebuffed , despite the fact that their places had not been filled, despite the fact that they were not told that there was no work available , and although they at no time had in- formed the respondent that they had quit. The refusal to reinstate them was made with the assertion that the respondent had learned from "undisclosed sources" that they had accepted permanent jobs elsewhere and, consequently , had quit the respondent's employ. Slight attention was paid to their repeated disclaimers and they have not been employed . In bare essentials , these are the facts upon which my col- leagues have decided that these employees ought not to be reinstated. Although the issue appears quite simple, its disposition by the major- ity carries the most intensely significant implication that the equality between an employer and his striking employees , sought hitherto so religiously to be preserved in these circumstances , has now been set awry by overweighting the balance in favor of the former. We discovered early the necessity for setting out a code of rights and obligations so that an equitable balance might be fixed between the interests of employer and employee in our industrial society, when economic rivalry culminated in a strike . At that point it became important that each contestant should conduct himself with full knowledge not only of his liberties but of reasonable limitations im- posed on his conduct by fairness . Our formulation of principles to govern the relationship of an employer and his striking employees took careful account of the need to protect the former in his right to operate his business . That this right should be meaningful , he was left free to replace the strikers . He was also left free to refuse to reinstate the strikers if he had replaced them, if he had no work for them due to a legitimate change in operations resulting in the elim- ination of the type of job, or.if they had seized his property , engaged NATIONAL GRINDING WHEEL COMPANY, INC. 913 in violence, or struck in violation of a contractual obligation not to dog so. These protections were granted so that he might compete upon a fair basis with the strikers. Correlatively, and in order to establish a inilieu of freedom for the striker, his right to reinstatement was protected. Not without qualifications, however. He must have un- conditionally abandoned his strike, and he must not have been re- placed. These qualifications met, his right to return was guaranteed against discrimination by his employer. These correlative principles are well established. Their essential desirability lies in their definitive justness and in the fact that their applicability is made facile because it is quickly ascertainable from the proof in any case. I have set them out only because, as I have said, I find that the majority, although apparently aware of them, has created an imbalance between them by granting an added defense to an employer which so comprehensively sanctions any refusal to reinstate strikers as to make that right quite empty. The majority decision amounts to this : that an employer who has not replaced his striking employees and who has work for them may nevertheless refuse to reinstate them because he has a reasonable be- lief that they have disqualified' themselves. He may assert any num- ber and variety of excuses, drawn from "undisclosed sources" and, according to my colleagues' decision, if this Board is impressed with the reasonableness of his attitude he is protected in his refusal. The validity of his defense will not be judged by actuality, i. e., whether the striker in fact was disqualified. This is deemed to be immaterial. Although this concept of reasonableness has a surface appeal and outwardly appears equitable, its ramifications in this context invite gross injustices. Consider with what criteria we should judge an employer's assertion that he barred a striker for whom he had a place because he had heard from an "undisclosed source" that the employee drank, beat his wife, failed to pay his bills, did not attend church, changed his job frequently, flirted, gambled, or was guilty of kindred immoralities. Consider also that the employee was in fact not guilty of any of these frailties. It would be extremely absorbing even if it were somewhat frustrating to deliberate upon the precise measure of doubt we should have to entertain of his innocence before we should be prepared to certify as reasonable his employer's belief that he was guilty. To avoid such barren possibilities, the Board, in a carefully rea- soned decision, not too long ago, held that an employer who barred strikers for whom there was work, even upon an honestly mistaken belief that the employees had engaged in forbidden conduct, had no `914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -valid defense if, in fact, the employees were not 'guilty.,' In refusing, in that case, to work a forfeiture by the 18 affected employees of their recourse to ordinary Board remedies, the Board explained : In other words, this defense has nothing to do with the question ,of motive-a'factor upon which alleged violations of Section 8 (3) ordinarily turn. Once it is pleaded, as in the case here, that the discharge was made for unlawful conduct inseparably con- nected with the strike, the burden was on. the respondents to .show that all the striking employees discharged therefor had, in fact, been guilty of unlawful conduct-in this instance the seizure of the respondents' refinery and leaseholds. As we have -found, the respondents met the burden imposed upon them with respect to all discharged strikers other than these 18. With re- spect to them, we are of the opinion that the respondents failed to establish affirmatively their participation in the unlawful seizure and occupancy of the respondents' property. [Emphasis mine.] Underlying this decisional policy was the almost conclusive pre- sumption predicated upon the cumulative experience of this Board, -that an employer who refuses to take back a striker who uncondition- ally offers to resume his employment, when there is work for him, is motivated by a bias against the employee's participation in the strike. But the employer, to rebut the presumption, need only prove that the striker, in fact, had disqualified himself. Because an employee who abandoned his strike, and consequently, had only his individual bar- power to rely upon, was placed in an inferior position vis-a-vis his employer, the standard of conduct which the employer was re- quired to meet to rebut the presumption, was necessarily set high. The presumption can be satisfied, not by assumptions or beliefs, how- ever reasonable or honest, but by facts alone showing that the em- ployee had disqualified himself for employment. By my colleagues' decision today, these salutary concepts are severely shaken and what was before clear is now made shadowy. This Board will no longer "Matter of Mid-Continent Petroleum Corporation , 54 N L. R B 912. The principle established in the Mid-Continent case grew out of the alleged unlawfulness of the strikers' conduct-seizure of the employer 's property. Obviously such conduct involves a grave measure of danger to the employer's interest for which he properly may be granted con- siderable freedom to protect his property . Nevertheless , the Board, in deciding that the employer must affirmatively prove that the strikers actually had engaged in the alleged unlawful conduct , thereby regarded the right of strikers for whom there ' was work to be a paramount interest , and consequently held that the employer 's motive in refusing to reinstate the strikers was irrelevant Surely then , in a case as the one before us, in which no unlawfulness is charged , it cannot be inequitable to hold an employer at least to a similar standard. In view of the sweeping nature of the decision in the bfid-Continent case , the AAA Dental Laboratory case cited by my colleagues , must be considered as over- fuled insofar as it is inconsistent with the principles I have noted NATIONAL GRINDING WHEEL COMPANY, INC. 915 primarily find facts, but rather concern itself with weighing the reasonableness of beliefs, and, as a consequence, the right to engage in collective action, guaranteed by the Act, as amended, is gravely impaired. What we must determine here, without regard to this employer's belief, is whether these employees in fact quit and consequently are no longer entitled to reinstatement, or whether they did not. On this issue, the burden of proof is on the respondent. If these individuals did not quit, then they remained employees because Section 2 (3) pre- serves their status as such and they have a right to be reinstated to the unfilled jobs for which they are suited. My colleagues do not undertake to decide this question because, as I have noted, they believe it immaterial. But, in view of the case, it is crucial. I think the employer has failed to establish affirmatively that Clench, Davignon, and Heubusch had, in fact, quit. On the contrary, the record establishes that these employees were employees of the respondent when they applied for reinstatement. Although all three had taken employment elsewhere during the strike, and although two of them had promised the employer involved that they would quit the respondent, while the third took an equivocal position'12 the fact nevertheless remains that at no time did any of the three employees notify the respondent that they had quit their employment. This is understandable since all three had no intention of quitting the re- spondent's employ. Any doubt that the respondent may have fornnu- lated from other sources as to the status of these employees must have been resolved by the return of these employees for the purpose of claiming their jobs after the strike, by the insistence of all three em- ployees that they had never abandoned their jobs with the respondent, and by their unconditional offer to resume their employment. In such circumstances, including the fact that the respondent had itself noti- fied these employees along with others on or about 'July 1013 of its intention to reopen the plant on July 15 and to notify each one "in person or by card when he or she is to return to work," any insistence by the respondent in its view that they had quit must be regarded as arbitrary. We have passed quite recently on a strikingly analogous 11 Employee Heubusch meiely expressed a doubt as to the probability of his return to the respondent's plant after the strike Moreover, although Clench and Davignon may have misled their interim employer as to their intent to return to work at the respondent's plaiit, after the termination of the strike , such action in no way prejudiced the respondent. Nor should it be considered as misconduct of the nature that deprives an employee of the protection of the Act. 11 Clench and Davignon received their notices on July 10 Heubusch received his letter a few clays later after a conversation with Sitgreaves, secretary of the respondent, in which lie disclaimed an imputation by Sitgreaves that he was no longer an employee of the respondent. . 766972-48-vol 75 59 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD case in Matter of the Fafnir Bearing Company (73 N. L. R. B. 1008). In that case, the Board ordered one Bolduc, a striking employee, re- instated even though he had procured a "quit slip" from his employer during the course of the strike. In rejecting the respondent's at- tempted justification of its refusal to reinstate on the ground that the employee had thereby voluntarily terminated his employment, the Board stated : - However, the record shows, and we find, in procuring the "quit slip" Bolduc did not intend to terminate permanently his employ- ment with the respondent but intended merely to use it as a means of obtaining employment elsewhere, during the shutdown of the plant. The mere acceptance by a striking employee of a "quit slip" to enable him to secure temporary employment elsewhere dwrirng the shut down of a plant, does not forfeit his right to be reem- ployed upon the reopening of the plant or termination of the strike, unless he has been validly replaced in, the meantime. [Italics mine.] , As in the cited case, the purpose of the strikers here in "quitting" was to enable them to secure interim employment for the purpose of dis- charging a basic responsibility, that of feeding their families. Clearly, then, if the Board declined to protect a refusal to reinstate an em- ployee who "quit" with full knowledge and through the cooperation of the employer as in the Fafnir case, then here, obviously, no protection ought to be granted inasmuch as the employer was never advised that the strikers had quit or, in fact, ever intended to quit.i" Even if I assumed that these employees, by reason of their con- duct during the strike, had acquired the status of applicants for em- ployment when they sought work with the respondent at the end of the strike, the respondent's arbitrary refusal to consider their application at a time when work was available cannot be condoned. This is quite clear because the asserted policy of the respondent not to employ per- sons working elsewhere in the area was insisted upon in the face of direct denial by the strikers that they were not available for employ- ment. This cavalier rejection of their requests impels an inference that the strikers were penalized because they struck. " My colleagues attribute to my reliance upon the Fafnir case, a misconception which the quoted language I have set out clearly proves to be unfounded No plainer meaning could be conveyed by language I find the underlined portion of that language to estab- lish unequivocally the proposition that an employer may not satisfy the duty to prove facts , which has been imposed by the doctrine of the Mid-Continent case, merely by point- ing to a condition which his striking employee must fulfill to obtain interim employment. There is, similaily , no substance to the charge that I would grant to strikers such an abso- lute right to be re-employed as would place them in a preferied position in contrast to employees who remained at work I have already noted above the qualifications which have customarily been invoked in these cases . Certainly enough risk attaches to the right to strike to make it unnecessary for me to elaborate on this contention. NATIONAL GRINDING WHEEL COMPANY, INC. 917 Consequently, I am convinced that these employees took interim employment upon the only basis it was available to them, intending always to return when the strike was settled. I cannot condemn them for it. Indeed the law encourages strikers to do so in order not only that production and commerce be sustained, but that amount of back pay for which an employer might be liable ought to be mitigated. A decision which discourages efforts to take interim work has the neces- sary effect of conditioning the right to reinstatement upon the endue ance of the strikers to remain idle on a picket line. But this decision, unfortunately, goes much further. Its most serious effect involves a return to the era when the collective strength of employers could be freely used in an economic contest with individual workmen. It is indeed a strange commentary that this Board should today decide to give such disproportionate preference to the employer when Congress in enacting the recent amendatory legislation unequivocally stated its firm purpose to establish a more just equality in the relationship be- tween an employer and his employees. I cannot believe that this deci- sion, in any manner, effectuates that purpose and therefore I must dissent from this portion of the decision.15 INTERMEDIATE REPORT Francis Y. Helgesen, Esq, for the Board Edwai d D. Flaherty, Esq , of Buffalo, N. Y, and Weber, Shank, Baumler cC Ti ost, by Howard Schank, Esq, of Buffalo, N Y, for the Respondent. Angelo P. Taibi, Esq, of Niagara Falls, N. Y, for District 50. STATEMENT OF THE CASE On a charge duly filed on July 19, 1946, by District 50, United Mine Workers of America, Local 12419, A. F. of L, herein called District 50, the National Labor Relations Board, herein called the Board, by its Regional Director for the Third Region (Buffalo, New York), issued its complaint dated November 20, 1946, against the National Grinding Wheel Company, Inc, herein called the Respond- ent, alleging that the'Respondent has engaged in and is engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (3), and (5), and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat 449, herein called the Act Copies of the charge, the complaint, and notice of hearing thereon, were duly served upon the Respondent and District 50 With respect to the unfair labor practices the complaint, as amended at the hearing, alleges in substance that: (1) on or about July 15, 1946, the Respondent discharged Gerard Davignon, Earl Heubusch, and Eugene Clench, and since that elate has refused or failed to reinstate them to their former or substantially equivalent positions for the reason that they joined and assisted District 50, and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; (2) on May 9, 1946, the Respondent discharged John Nightingale "because of his past membership "I wish to reserve the question as to whether Heubusch 's conduct on the picket line disqualified him from exercising his right to reinstatement. 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and activity on behalf of District 50" ; (3) on or about July 15, 1946, the Respondent unilaterally eliminated wash-up and lunch periods and has since refused and failed to reinstate such periods for the reason that a majority of the employees joined and assisted District 50, and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection; (4) by such discharges and refusals to reinstate and by the elimination of wash-up and lunch periods the Respondent has discriminated in regard to the hire and tenure and terms and conditions of employment of its employees and discouraged membership in District 50; (5) a unit consisting of all production and maintenance employees at the Respondent's plant, excluding watchmen, office and clerical employees, confidential employees, chemists, salaried employees, assistant foremen, foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act; (6) on or about January 17, 1946, a majority of employees in this unit in a secret election designated District 50 as their repre- sentative for the purposes of collective bargaining; (7) on or about August 15 and October 21, 1946, the Respondent, although duly requested by District 50, refused to bargain with District 50 as the exclusive representative of all em- ployees in the above-defined unit; and (8) the Respondent by its officers and agents through these acts has interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On or about December 3, 1946, the Respondent duly submitted its answer in which it admits the facts alleged in the complaint as to its corporate organization and the nature and extent of its business 1 The answer denies, however, the commission of any unfair labor practices and denies "any knowledge or informa- tion sufficient to form a belief" as to the claim of District 50 to be the statutory representative of its employees in the above-defined unit. Pursuant to notice, a hearing was held on December 4 and 19, 1946, at North Tonawanda, New York, before the undersigned, Charles E Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel and District 50 by one of its officials. Full opportunity to be heard, to examine and cross-examine witnesses and to introduce evidence bearing on the issues was afforded all parties. At the begin- ning of the hearing, the Board moved to amend its complaint by adding the names of Earl Heubusch and Eugene Clench to that of Gerard Daviguon as having been discriminatorily discharged and refused reemployment and to further amend to the effect that John Nightingale was discriminatorily discharged on May 9, 1946. The Respondent interposed no objection to this motion but reserved its right to ask for adjournment at the close of the Board's presentation and to recall any of the Board's witnesses, if desired for further cross-examination. The motion was granted with these conditions attached At the close of the Board's presentation at the request of the Respondent adjournment was taken from December 4 to December 19, 1946. The Respondent made no request for the recall of any of the Board's witnesses At the close of the Board's case-in- chief Respondent moved to dismiss the complaint for failure of proof and other reasons stated. The motion was denied without prejudice to its renewal later. Respondent renewed the motion at the close of the hearing at which time ruling 1 At the hearing Respondent further admitted that District 50 was a labor organization within the meaning of the Act. NATIONAL GRINDING WHEEL COMPANY, INC. 919 was reserved. It is now disposed of by the findings of fact, conclusions of law, and recommendations in this Intermediate Report. At the close of the hearing the Board moved to conform the pleadings to the proof as to such immaterial matters as names, dates, and spelling. This motion was granted without ob- jection. At the conclusion of the presentation of testimony all parties waived oral aignment before the Trial Examiner. The parties were duly advised that they had the privilege of presenting briefs for the consideration of the Trial Examiner. The Board and the Respondent have duly presented such a brief. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT' The Respondent, National Grinding Wheel Company, Inc, is a corporation duly organized under the laws of the State of New York. It has its office and principal place of business at North Tonawanda, New York, where it is engaged in the,manufactuie, sale, and distribution of abrasive products During the calendar year 1945 the Respondent purchased raw materials, products, and supplies valued in excess of $25,000, which were transported in interstate com- merce from and through other States than New York. In the same period it manufactured and sold outside the State of New York products valued in excess of $500,000. The Respondent admits, and the undersigned finds, that it is engaged in commerce within the meaning of the Act. II. LABOR ORGANIZATION INVOLVED District 50, United Mine Workers of America, Local 12419, A. F. of L., is a labor organization which admits to its membership employees of the Respondent. Local 12419 confines its membership to such employees. III. THE UNFAIR LABOR PRACTICES A. Background Prior to 1942 the employees in Respondent's plant had had no statutory representative. District 50 entered a petition for investigation and certification of representatives on May 4 in that year' A consent agreement for a card check against a pay-roll list was executed by the Respondent and District 50 As a result the Regional Director, on May 6, 1942, certified that District 50 was entitled to be the exclusive representative of the production and maintenance employees, excluding watchmen, chemists, confidential employees and clerical, salaried, and supervisory employees.' This appropriate unit has been maintained until the present and is not now in dispute A contract was executed with District 50. Contractual relations have since been maintained except for the period from November 21, 1945, to July 13, 1946 On October 5, 1945, a rival organization, the United Gas, Coke, and Chemical Workers of America, C. I. 0, herein called CIO, filed a petition with the Board.` 2 These findings aie based on allegations of the complaint admitted by the Respondent in its answer and on a stipulation between the parties entered on the record I In Case No 3-R-408 4 This is substantially the unit defined by the Board in the complaint. I This was Case No 3-R-1103 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The parties entered into an agreement for a consent election. This was held on November 8, 1945, and the result was inconclusive. Each union received the sauce vote while a plurality was cast for the "neither" choice. A run-off election was held in which the same three choices appeared on the ballot. In the second elec- tion on November 27, 1945, District 50 received a plurality of the votes but less than a majority. Since the Regional Office had no authority to conduct a second run-off election the case was dismissed on December 11, 1945.8 District 50 promptly filed a new petition on December 17, 1945 7 A new consent election was held on January 17, 1946, in which the C1O again participated. Dis- trict 50 received a majority of the valid votes cast and was duly certified as the statutory representative on January 24, 1946. The contract in force in 1945 had lapsed by its provisions on November 21, 1945. After the final determination of the representation question as just stated, conferences were opened between the Respondent and District 50 Because of stern differences on issues, for The most part not material here, negotiations were long di awn out. On April 18, 1946, District 50 called a strike and established a picket line. The strike was 100 percent effective and after a brief period the pickets were withdrawn. Nego- tiations continued and on July 13, 1946, a contract was executed. Employees were called in on July 15 to prepare for a resumption of operations and on July 16 all departments were reopened. B. The alleged discrinvinatorif dischai ge and refusal to rehire Geiard A. Davignon, Eugene Clench and Earl Heubusch s Davignon was first hired by the Respondent in October 1944 and was continu- ously employed until the date of the strike He joined the Union at an indeter- minate (late prior to February 1945 when he was elected a member of the negoti- ating committee and steward of the Oven Department He struck with the other employees and acted as a picket during the period that the Union maintained a picket line. About 4 or 5 clays after the strike began Davignon interviewed the employment manager of a plant located within a block of Respondent He gave the following unassailed and credited account of this interview : Well, I went over and asked them for a job and lie asked me where I was working and I told him over to the [Respondents which is on strike; so I don't know we talked quite a while, and he says, "I can't employ you unless ^ on are going to stay here, and quit the other job" ; so I told him, "If that is the only way I can get a job here, I iu i11 do that," and that is about all there was to it.° Despite his admitted commitment to his new employer Davignon.assented under redirect examination to the question, "I understand from your testimony . . . it was always your intention to return to the [Respondent] at the conclusion of the strike." ° The undersigned has checked these cases in the Board's permanent records . Some de- tails are stated here which were not entered on the record of this proceeding This is Case No 3-R-1151 Factual data herein is drawn from the credited testimony of these three employees. The Respondent does not dispute its validity ° On cross-examination Davignon gave the following version I told him [the employment manager ] I needed the job; that I had my family to feed and things were getting kind of low, so I said , "Ain't there no possible way at all I could get a job here I" Then he says , "Well , we could put you on if you want to stay here and quit the other place ." Then , I told him, "If that is the only way I can get a job, then I will have to." NATIONAL GRINDING WHEEL COMPANY, INC. 921 Under (late of July 10, 1946, Davignon received a letter, which Respondent admits was sent to all strikers, reading as follows: This is to notify you that the contract is now being drawn up and it is our understanding that it will be submitted to the Local at a meeting Friday night. If it is approved at this meeting, it is our intention to begin reopening the plant Monday July 15. Since all operations cannot be started at once, each employee will be notified in person or by card when he or she is to report for work. NATIONAL GRINDING WHEEL CO, INC. A couple of days after the receipt of this letter Davignon called at Respondent's office and inquired of Personnel Director Harold Hemingway when he was to be called back. He was then told that he was not to be reinstated since lie had quit Davignon protested saying, as he testified, "I told him that I hadn't told them anything about quitting and I wanted to come back to work. [Heming- way] said there was nothing he could do about it." Up to the time of the hearing Davignon had made no further effort to secure reinstatement nor had he been offered his former position by the Respondent For reasons not stated in the record he had removed to a position in a plant about 6 miles from that of the Respondent. Its advantages, as compared to his job with the Respondent, are not reflected in the record. The contract executed on July 13, 1945, provided for an increase of 18y_> cents an hour over the rates in effect prior to October 22, 194.510 As further therein stated, "Payment of retroactive pay shall be made in six weekly consecutive installments commencing with the first regular pay day-after the execution of this agreement," The record reflects that Respondent did not make such retroactive payments to employees who it considered had quit their employ- ment before July 13, 1946 Davignon's testimony indicates interest in the pos- sibility of getting this back pay An excerpt reads, "I figure we would be en- titled to that back pay regardless if I go back or not because I worked there during that time." When pressed under cross-examination to state whether he would still desire reinstatement if his claim to back, or retroactive, pay was justly settled, Davignon, although he persisted in his statement that it was always his intention to return, was reluctant to give a positive reply. He finally answered, after a period of reflection, "Well, I am not sure at this time." Clench was hired by the Respondent in May 1941. At the time of the strike he was serving as a grinding wheel moulder His employment was interrupted by a call to the armed services on a date not stated. His military service ter- minated on December 11, 1945. He was not given an "honorable discharge" but his discharge read "under honorable conditions." As a result Hemingway raised questions whether such a discharge entitled him to full rights under the terms of the Selective Training and Service Act. These questions were ulti- mately resolved in Clench's favor but his rehiring was delayed and it is evident that the incident left doubts in Clench's mind as to the justice of Hemingway's attitude, and that of the Respondent's officials generally, toward him. Clench joined the Union in "January or March" 1946. His testimony reflects no union activity, other than membership, in the brief period remaining before the strike on April 18, 1946 He participated in the strike and served as a picket "about one or two days " Thereafter lie made application for employment 1° A 10 percent increase had been given at this time This 10 percent payment was cred- ited toward the 181k cents an lioui. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD at the same plant where Davignon was later hired. In his testimony he gave the following account of his interview with the employment manager, Well, first before I went [there] I went down to [another plant] and tried to get a job down there and they wouldn't hire me because I was on strike ; so I went to Durez, I was all prepared to tell them I quit the [Respondent], in order to get a job, just a big lie in order to get a job. He told me, "Okay" if I quit the [Respondent] he would hire me. But I had intentions of going back to the [Respondent] when the strike was over. Clench received Respondent's letter of July 10, 1941 Not having been notified to return within a week lie went to the plant and asked Heiningwa. when he would be called back He was told, in effect, that the Respondent regarded him as no longer in its employ because he had accepted a job with the neighboring plant Clench protested as had Davignon that he lead not notified the Respondent of his intentions to quit and asked Hemingway where he had n eceived such information Hemingway declined to divulge this stating, as Clench testified, " \Ve got word." Clench then and on a second visit inquired about his right to retroactive pay under the terms of the strike settlement Hemingway informed Clench that under contractual provisions this was due only to employees reinstated after the strike. Clench admitted that, at this juncture, lie had declared to Hemingway, "something along [the] line that [lie] didn't give a damn about the job; that [he] wanted the back pay." He explained that he was "a little heated" at his treatment after he had received a letter stating he would be recalled and had given his current employer 3 days notice of his intention to quit Clench mani- fested suspicion also of Hemingway's good faith because of the doubts expressed as to his right to be reemployed on his return from service in December 1945.12 At the time of the hearing Clench had had three jobs since his employment at the Respondent's plant His wages and working conditions at these plants are not disclosed. His testimony contains no positive statement that lie now desires to return to his employment with Respondent. Ieubusch was hired by the Respondent on October IT, 1939 His last job was as weigher in the Vitrified Mix Department His employment was interrupted by approximately 2 years in the armed services ending January 29, 1946. On his return questions were raised by the Respondent's officials whether he was entitled to reinstatement under the provisions of the Selective Training and Service Act -since he had not been drafted but had relinquished his position and volunteered. Resolution of this question caused a slight delay in his reinstatement 12 Heu- busch's testimony indicates that he retained a grievance over this incident Heubusch joined the Union among the first applicants and served as president for a year before enlisting in the armed forces. He was also a member of the grievance committee until he left in 1944 Heubusch joined the strikers and acted as a picket captain. In that capacity he had a colloquy with Hemingway which he candidly stated in his testimony as follows: 21 At another point in Clench 's cross-examination the following interchange is recorded : I am just trying to find out what you said in the heat of the moment . You did say there were better places to work or that you didn't care about the job , what you wanted was the back pay? A At the time I did ; just a personal argument between Mr . Hemingway and myself Heubuscli testified that he waited about 2 weeks after his discharge on January 29, 1946, betoie applying for reinstatement. He was rehired on February 18, 1946. NATIONAL GRINDING WHEEL COMPANY, INC. 923 Q. You say that Mr. Hemingway knew that [you were in the picket line] because you stopped him; what did you mean by that? A Well he was going to go in, and I told him that there was nobody going in; that was my orders I was a captain on the picket line. Q. And you refused to let him go through the picket line; is that right? A. That is right. Q And did he go through the picket line? A. No, he didn't. Q. That is, you prevented him from going through the picket line? A. I didn't prevent him ; I didn't hold him; I just merely told him. Q That you had orders that no one was to go through the picket line? A. That is right. Q And as captain on the picket line, you were going to see those orders were carried out. A. That is right. Q. And that is why you were on the picket line. A Sure. Heubusch applied for work in a plant in North Tonawanda, where he had previously worked, "about a week after the strike started." His testimony rela- tive to his hiring interview reads, Well, I walked in and asked for a job and he [the employment manager] asked me where I had been because I had worked there before, and I told him I had been working at [the Respondent] and he asked inc how long, and I told him; and he said that was too long, that I would go back there as soon as the strike was settled ; and I told hint, "I don't know whether I would or not because I got a shoving around down there" and that is all I said and I got a job's Heubusch did not receive the letter announcing the plans for reopening the plant and recalling the strikers at the time they were mailed to the employees generally At a chance meeting with Carl Sitgreaves, purchasing agent for the Respondent and secretary of the corporation, Heubusch asked him when the em- ployees would be recalled. Sitgreaves then said, "Oh, are you still working there?" Heubusch replied, "As far I know ; I haven't quit." A few days later he received the letter sent to all striking employees However, he was not notified to return After waiting until employees junior to lira had been recalled Heubusch applied at the plant, a week or more after the plant reopened, and had an interview with Hemingway about which he testified as follows, Well, I walked in and asked him how come I wasn't back to work yet. He said I had quit, so I asked him how come I had quit; I never notified any- body of the Company or him or anyone else that I had quit; so he told ine, he said, "We get pretty good information," lie says, "And it is in our records that you quit, and that is the way it is going to stay for now" ; so that was that, so I gave hum to understand I hadn't quit ; and that I had no intentions of quitting, and I didn't notify anybody to the effect that I did quit. Heubusch admitted that when employed at another plant during the strike, he gave the impression to the employment manager that he was doubttul about "Elsewhere Heubusch gave the following testimony relative to this interview "He [the eniploynient manager] says that 'I had a lot of seniority there and that I would go back right after they opened up,' and I told him, 'I don't know if I will or not.'" 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD returning to the Respondent's plant because he "was dissatisfied with the con- ditions" and that he was being shoved around However, he insisted that it was his intention then and thereafter to return. As he stated the matter, "I got a lot of seniority down there, and it is tough to lose." Hemingway was not called as a witness Works Manager Fred W Rugs, in his testimony, gave the following statement. as to the reason Davignon, Clench and Heubusch were not reinstated after the strike, Well, we understood that they had taken jobs, with other companies, permanent jobs They had quit the employ of the [respondent], and it has been the policy of the Company not to be luring men away from other companies in our area Q. You say that has been the policy of your Company not to hire employees from other companies? A Yes, if they are woiking there; if they are working at other plants. Q Was that the policy during the war or could you'hire them troni other plants during the war? A Well, it was even the policy during the war if they came in and stated they were working at a place, we didn't consider them If they said they had quit a plant, and then we would call up and check on the Company that was in the area The undersigned notes that North Tonawanda is situated in an area rated as critical in manpower and credits this testimony. It is further noted that both Davignon and Clench in their testimony plainly indicated that their application for reinstatement was not an unqualified one. It was conditioned on the receipt of the back pay provided in the contract exe- cuted on July 13, 1946. This back pay was for the period from December 15, 1945, to the strike on April 18, 1946 The question of the right of these com- plainants to receive such back pay falls without the ambit of the Act No ref- erence to such right is here made or intended The claim of Davignon and Clench for the back pay provided in the agreement reached on July 13, 1946, is discussed above only because of its significance as an indication that their application for reinstatement was not unconditioned. Respondent contended at the hearing that Heubusch's action in forbidding Hemingway to enter the plant was sufficient grounds "to warrant the dismissal of the complaint as to him." The undersigned finds merit in this contention. In the Fansteel Mctallurgwcal Company" case the Supreme Court clearly held that employees who deprive an employer of the rightful use of his property forfeit their right to reinstatement. The right to strike is there defined as "the mere quitting of work and statement of grievances in the exercise of pressure recognized as lawful.s15 The undersigned concludes and finds that the Respondent refused to rein- state Davignon, Clench and Heubusch because it believed they had quit their jobs Some 20 to 25 other employees out of approximately 200 employed at the time of the strike did not return thereafter. Heubusch is further shown to have engaged in unlawful conduct while acting as a picket. The Board has not shown that the failure to reinstate Davignon, Clench and Heubusch was motivated by their participation in lawful conceited activities. The policy Respondent pursued was not in derogation of the Act Nor does failure to rehire under the conditions shown constitute discrimination within 14 306 U S 240. 31 Ibid 256. NATIONAL GRINDING WHEEL COMPANY, INC. 925 the meaning of Section 8 (3) of the Act'6 It'will accordingly be recommended that this allegation of the amended complaint be dismissed. C The alleged discriminatory discharge John Nightingale was first hired by the Respondent in February 1933," as a worker on the bushing table Approximately 4 years later he was taught to run a lathe and edge wheels in the Finishing Department. He was made an assistant foreman on July 25, 1942. His promotion to supervisory status was under unusual circumstances. At the time Nightingale was president of the local in District 50 In that capacity he was spokesman in presenting a grievance to the Respondent against Superintendent Charles Weinke who exercised supervision on four operations, shipping, inspection, speed testing and finishing District 50 demanded that he be removed from such super- vision The Respondent, since "the employees did not cooperate" with Weinke, acceded to their demand and assigned Weinke to other non-supervisory duties. Carl Goerss had been foreman of the finishing department under Weinke. He assumed control of this work. Respondent's President John J. Russ then asked Nightingale if he would accept an assignment as assistant foreman under Goerss. After consultation with District 50 officials, and being advised by them to do so, Nightingale ac- cepted. At this time he withdrew from District 50. As he testified, "It was insisted upon that I do so by both management and the Union " When the strike was called Nightingale, with other supervisors, was told by President Russ that they would be retained and paid during the continuance of the strike. They were further instructed, as Nightingale's credited testimony reads, "Mr Fred Russ, who is general manager, said there was no sense of any of the foremen coming to the plant because you couldn't get in anyway, so stay home." 'x Two of Nightingale's stepbrothers were prominent in District 50 at the time Edward C Schnell was president of the local and Donald Schnell was chief steward Each signed the contract executed on July 13, 1946, as mem- ber of the negotiating committee. Nightingale testified that this relationship was known to General Manager Russ since he had applied to Russ successfully for the employment of each of his stepbrothers by the Respondent Under date of May 9, 1946, Nightingale was laid off, and in effect, discharged, in a letter dictated by President John J Russ and signed by Works Manager Fred W Russ The letter reads as follows, Mr. JOHN NIGHTINGALE, 222 Zimmerman St. North Tonmwanda, N. Y. DEAR JOHN : I am enclosing a check for the balance of your April pay and also a check to cover pay from May 1st to May 15th Am sorry to have to inform you that we will not be able to use an Assistant Foreman in our Finishing Depart- ment in the future, as our business before the strike was just about cut in 16 Cf Montgomery Hardwood Flooring Co, The, where the Board held that failure to give employment to two employees who the Gmplover had discovered were employed in a neighboring mill was nondiscriminatory . 72 N L R . B 113. Issued January 15, 1947 19 L R. R. 1144 17 The facts stated as to Nightingale's service are drawn from his testimony which lacks precision as to dates and periods 18 F W. Russ corroborated the statement that all supervisors were advised to stay home. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD half in comparison with our business through the war period, and we expect, of course, the strike will cut it considerably more, and I therefore will have to lay you off as of May 9th. I thought it would be best for us to give you this advance notice so you could make application for your Unemployment Insurance, commencing after May 15th. I am sorry to have to do this, but I think you, yourself, realize there will not be work for two foremen in our finishing department, with probably less than one third of the business done through the war. - Again, would like to say that I am very sorry that I have to do this, and any references you may need, I will be pleased to make them for you. On receipt of this letter Nightingale called at the home of President Russ where, under stress of strike conditions, the plant's business was being transacted On inquiry he was told that he was the only supervisor laid off He requested a couple of letters of recommendation and was promised that they would be pre- pared and sent to him as soon as Russ' daughter, who was carrying on the Re- spondent's clerical work, was available About a week later, not having received them, Nightingale again called at the John J. Russ' home. On this occasion he talked with Fred Russ who assured him that they would be prepared and sent through the mails. At the (late of the hearing he had not received them. Re- spondent explains, through the testimony of Fred Russ, that failure to prepare and send the letters is purely an oversight. Russ further testified that he had received no inquiries from other employei s relative to Nightingale. At the time Nightingale became assistant foreman the finishing department had about 50 employees. It reached the highest point of 59 in the fall of 1943. Just prior to the strike it had about 30 employees 3 Works Manager Fred W. Russ testified that the decision to lay off Nightingale had been made by himself and his father, Respondent's president, John J. Russ, as a result of conversations during the strike in which they discussed the possibility of introducing economies in their operations. While the finishing department was the largest in point of employees, operations there were few and simple consisting of smoothing the sides of grinding wheels and edging them to correct irregularities in the diame- ters'" Russ and his father consulted Foreman Goerss and were assured by him that he could handle the department without an assistant foreman. Russ criti- cized Nightingale's performance as follows, I don't think he [Nightingale] ever gave instructions. The majority of the times when there was any instructions given he usually took another man- that is, if there was a new man hired, he took a new man off of another machine and had him break him in. I think it was mentioned to the foreman at the time, saying if an assistant foreman couldn't break a man in or put his time in, he would have to take "Works Manager Russ so testified after consultation of Respondent 's records. "F W. Russ gave the following ciedited testimony relative to the character of the work in the finishing department: Well, . In the other [departments] there is the manufacture of the article, what goes into ]he article. Here is just the finishing of the article After a man is broke in, he just woiks on the machine and lie can accoidingly carry on all day long practically without any-just the foreman has to lay out the work for him and be there for airy questions he may ask Otheiwise the men go along all day long pos- sibly without the foreman ever talking to them some days NATIONAL GRINDING WHEEL COMPANY, INC. 927 another man off another machine, we didn't see that we required the assist- ant toreman there. Russ testified that neither he nor his father had mentioned these criticisms to Nightingale. The Board contends that Nightingale's termination was motivated by his pre- vious activity in District 50, and by his close relationship to the President of the Local and its chief steward. It emphasizes the admitted facts that no other supervisory employee was terminated and that the finishing department had more employees than any other. The undersigned notes that Nightingale's activ- ity in District 50 had ceased approximately 4 years before his termination. Be- yond a nominal honorary membership he had had no connection with District 50 during this period. During this time he had retained his supervisory status and salary. Works Manager Fred Russ denied that he was aware that the Schnells were stepbrothers of Nightingale 21 The undersigned credits this denial The Board contends that such knowledge is proven by the requests Nightingale made of Rnss for the hiring of his stepbrothers. Such applications had been made 6 and 10 years earlier, respectively. Russ testified at length and displayed a faulty memory on details similarly remote, concerning matters of importance to Respondent's contentions. To find that the decision to terminate Nightingale was affected by that relationship requires an inference fetched from far in face of the fact that both Edward C. Schnell, presiddnt of the local and Donald Schnell, its chief steward, were reinstated after the strike, were still employed at the time of the hearing and had suffered no discrimination because of their participa- tion therein. Works Manager Russ insisted in his testimony that the fall in the burdens on supervisors resulting from the decline in the number of employees in the finishing department from the high point of 59 to 30 or 31 just prior to the strike justifies the statements made in Respondent's letter laying off Nightingale. It was his testimony that the letter stated the basis of the lay-off accurately and fully and that the decision to terminate Nightingale was based on legitimate business reasons. After consideration of the full record and the demeanor of the witnesses in- volved, the undersigned concludes and finds that the Board has not proven that Nightingale's termination was in any degree affected by his union activities or that of his stepbrothers. There is no direct evidence in the record to support such a finding. The Respondent has full control of discharges unless such dis- crnrnnation is proven. It will accordingly be recommended that so much of the amended complaint as alleges that John Nightingale was discriminatorily dis- charged be dismissed. D The refusal to bargain collectively 1. The appropriate unit and District 50's majority status therein There is no dispute as to the definition of the appropriate unit. The complaint states that all production and maintenance employees employed at Respondent's "Russ was asked whether lie recalled Nightingale's applying to him for jobs for his stepbrothers He replied, No, I can't recall a thing of it. I can't deny that he didn't; but I don't have any recollection of his ever making the request or stating that they were brothers At this time Russ reaffirmed that lie had not known at the time Nightingale was termi- nated that lie was related in any way to the Schnell brothers 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plant excluding watchmen, office and clerical employees, confidential employees, chemists, salaried employees, assistant foremen, foremen, and all other super- visory employees with authority to hire, promote, discharge, discipline or other- wise effect changes in the status of employees or effectively recommend such action, constitute an appropriate unit for the purposes of collective bargaining. This is substantially the unit for which the-Respondent recognized District 50 as statutory representative in the contracts executed in 1944 and on July 13, 1946. At the hearing the Respondent stated that it did not question its appro- priateness under the Act. The undersigned finds that it is an appropriate unit within the meaning of Section 9 subdivision (b) of the Act. As stated above, District 50 won an election held on January 17, 1946, under the provisions of a consent election agreement and was certified on January 24, 1946, as the statutory representative of the employees in the above-defined unit. The Respondent accepted the results of the election ; recognized District 50 'thereafter as the statutory representative and on July 13, 1946, executed a collec- tive bargaining agreement with District 50. It raised no question at the hearing in the instant proceeding as to the validity of this election and certification. Ac- cordingly, the undersigned finds that District 50 has at all times since January 17, 1946, been the statutory representative of the employees within the above-defined appropriate unit. 2. The refusal to bargain The Board makes four contentions which it asserts constitute refusal to bargain: (a) That the Respondent after July 15, 1946, withdrew, by unilateral action, the privilege of using its telephone for District 50 business ; (b) That on July 15, 1946, and thereafter, the Respondent unilaterally with- drew the afternoon lunch or rest period of 15 minutes and also wash-up time previously taken at the end of shifts ; (c) That on or about August 15, 1946, the Respondent demanded that District 50 discuss grievances at a location unreasonably distant from the plant; and (d) That the Respondent on or about October 21, 1946, refused to provide District 50 with information with respect to rates of pay of employees essential to the intelligent and effective representation of the employees These four contentions are discussed seriatim below : (a) It is admitted, that Respondent on July 15, 1946, when the plant reopened after the strike, enforced a rule that employees would not be called to the phone for any matters, whether or not union business was involved Prior to this date, Angelo P. Taibi, representative of record for District 50 in this proceeding, had been accustomed to telephone the plant and have employee Edward C. Schnell, president of the local, and chairman of the grievance committee, called to the telephone, at any time that he had District 50 business to discuss. After the strike settlement, Taibi was told by the switchboard operator and by Personnel Manager Hemingway that he could not communicate directly with Schnell over Respondent's phone during work time. Hemingway, however, transmitted Taibi's messages to Schnell on request. Schnell also protested to his foreman after being refused permission to telephone Taibi on Respondent's telephone in work time. After consultation with Works Manager Russ, his foreman reported, as Schnell testified, "I am sorry but we cannot let you use the telephone for anything regardless of whether it is union business or anything else." Works Manager Russ gave the following explanation in his testimony relative to conditions which caused the Respondent to formulate this rule, NATIONAL GRINDING WHEEL COMPANY, INC. 929 Well, I didn't take any of the calls or transfer them myself, but I under- stood from the switchboard operator that it had been the general practice previously, and it got to the point where there were so many employees being called to the phone . . . for all their, own personal business, that our trunks were so crowded we were getting complaint from customers and distributors and agents that every time they called long distance they couldn't get any connection. The switchboard operator has been instructed when that rule was put in that she would take any message and have it delivered for any employee in the plant. Russ further gave credited testimony that provision was made for employees to use the telephone in case of emergency After consideration of the full record the undersigned finds no merit in this contention of the Board. In a decision which is decisive of this issue, the Board stated : "The Act, of course, does not prevent an employer from making and enforcing reasonable rules concerning the conduct of employees on company time. Working time is for work " 22 Insistence that employees' work not be interrupted by telephone calls the undersigned finds to be such a reasonable rule covering the conduct of employees during the time compensated for by wages received. (b) Rest periods of 15 minutes in each half day were established in June 1944 Edward C Schnell, president of the local, testified concerning conditions prior to that date, as follows : The employees used to eat at anytime they desired, morning and afternoon and some went so far as to lunch three or four times in a half a day; so they called the Union Committee in. The Committee suggested that lunch or rest periods be established As Schnell testified, the committee suggested, "if they (lid that, that would be a chance for them to discharge or set up some sort of rules whereby anybody that lunched outside of those periods would be taken care of." After consideration, Works Manager F W Russ adopted this suggestion and under date of July 31, 1944, promulgated a notice to the employees which provided, There shall be a morning lunch period from 9: 15 a in to 9: 30 a in. and an afternoon lunch period from 2: 45 p. in. to 3: 00 p in. for all employees, except in a few cases where the foreman may designate a different period. Smoking is permitted during these periods in places designated by State Smoking Permits only. Signals will be sounded at beginning and end of periods with a 3 minute warning signal before the end of the period. All employees are to be at their working station when the final signal'sounds. Both Tatbi and Schnell testified, and the undersigned finds, that the Respond- ent's representatives brought up the question of dropping the afternoon lunch period at either the first or second conference held in February 1946. The Union representatives replied that they would talk it over and have further discussions regarding it However, the matter never came up for further discussion. Howard Schank, counsel of record for the Respondent in this proceeding, who had represented it in bargaining conferences with District 50 since con- tractual relations had been established in 1942, testified that the elimination of 2 -"See Matter of Peyton Packing Co , Inc, 49 N. L R B. 828, 843; enf'd 142 F (2d) 1009 (C C. A. 5) ; cert. denied , 323 U. S 730. 930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the afternoon rest period had been discussed in conference on March 5 and 8, 1946 His pertinent testimony is recorded as follows, The matter was first discussed at the second negotiations meeting between the company and the Union which.was on March 5th. The matter was fleet brought up after receipt of the Union demands on a new agreement. The company made a counterproposal concerning wages, and one of the counter- proposals was that the afternoon lunch period be discontinued in view of the fact that there remained apparently only an hour or an hour and a quarter after the expiration of the afternoon lunch period until the time the men went home . . and that same day when the Union came back with a counterproposal listed among their couuterpropositions, was a proposition that the afternoon lunch period be discontinued; that it was satisfactory to them. * The very same thing happened on the 8th of March. We made a series of counterproposals among which was one that the afternoon lunch period be discontinued, and the Union came back with a set of counterproposals and made a like offer. Schank further testified that, according to his best recollection, District 50 did not later "discuss or refer in any manner whatsoever to the afternoon rest period." The Board made no attempt to rebut this testimony It is credited by the under- signed. When the plant reopened on July 15, 1946, the Respondent had posted new rules which eliminated the afternoon lunch period. The rule as changed further stated : "Lunching and the use of the milk and candy machines is to be limited to the above designated period and the regular noon day lunch period " The right to wash-up time at the end of shifts had never been formally recog- nized. Rules posted by the Respondent on July 1, 1942, provided miter ales, "Em- ployees shall not quit work until the quitting signal sounds at noon and night. Hereafter, any one so doing will be docked for the time lost These rules were definitely accepted by District 50 in an agreement reached on July 27, 1944, in settlement of a brief strike 23 The employees generally, and those in the lathe room in particular, opposed a notice posted there which forbade leaving the lathes to visit and talk to other employees. The agreement signed by Russ and by a representative of District 50 and six representatives of Local 12419, pro- vided that the notice posted in the lathe room should be removed ; and that copies of the Shop Rules of July 1, 1942, should be posted in all departments. The final paragraph of the agreement reads, The Union will give its full cooperation in the company's enforcement of the rules as set forth in such notice of July 1, 1942, and such other rules as the company may establish from time to time However, this rule was not enforced. The practice grew up and was tolerated by the Respondent of employees leaving their work places to wash up 5 or more minutes before the quitting bell rang Work in the manufacture of grinding wheels is dirty and washing up is necessary before donning street clothes. It is 2J Edward Schnell and Russ gave credited testimony, which is in substantial agreement, covering these events in July 1944. Russ testified as to the agreement, This covers an agreement made at the time of a walkout of the employees in objection to a notice that was posted in one department, and this was agreed to and signed by the Union upon removal of the notice in one department that they would agree to cooperate in the company's enforcement of the rules as set forth in July 1942. NATIONAL GRINDING WHEEL COMPANY, INC. 931 in evidence that the number of wash basins was limited and pressure on this facility was great at the close of the shift. Moreover, the making of a wheel is a somewhat lengthy process and once begun must be finished before the em- ployees are free to leave In consequence, the employees were accustomed to cease work at any time before the quitting bell when they felt that the remaining time was insufficient to allow them to finish a wheel of the size and type under manufacture." It is clear from the record that the loss of time from this practice was substantial For the most part, the employees were paid on time rates This matter was not discussed during the bargaining conference. How- ever, the rules posted on July 15 1946, declared, Employees shall not quit work or wash up or otherwise prepare for leaving the plant until the quitting signal sounds at noon and night. Anyone so doing will be docked at least 15 minutes. The attention of the employees was pointedly called to the new rules and they were warned that it was the intention of the Respondent to enforce them rigidly 25 Works Manager Russ explained that the reason for allowing the practice of quitting early to wash up during the war years was because "we had to over- look a good many things to keep production up. We were all working toward the war effort " He further testified that it was done "in order to hold your men. It was a hard time to get men." The elimination of the afternoon rest period and of wash-up time were each made the subject of a formal grievance submitted to the Respondent. These are dated July 24 and July 25, 1946, respectively. At the time of the hearing these grievances had not gone through the full grievance procedure Edward C. Schnell, who was both president of the local and chairman of its grievance committee, testified that it was the intention of District 50, both when their grievances were filed and at the date of the hearing, to follow through-to arbitration. The Respondent, by its president, John J. Russ, under (late of August 1, 1946, replied to District 50's written statements of these grievances. This answer was in the following terms : Attention : Edward Schnell, President Gentlemen of the Grievance Committee Your two Grievances, one regarding wash up period and the other re- garding afternoon lunch period have been referred to me, and I want to reply as follows : The lunch period was given voluntarily by management of this Company for the reason of the longer hours worked during the was period As we are now working three and one half hours in the afternoon, I feel that no lunch period is necessary. In regard to the wash up period which management never has granted. You state we took this away from you, and I wish to refer you to para- graphs of notice put up in 1942 and again in 1944, and in the 1944, signed by your Regional Director and the entire Committee of the Union. These paragraphs read as follows : 24 Works Manager Russ testified that the wheel manufactured varied in weight from 2 grams to 450 pounds s5 Russ testified that the rules were explained to the supervisors who were told Re- spondent "wanted the rules lived up to and if the men couldn 't abide by the rules, we would have to dischaige them." 7 6 6 9 7 2-1 8---vol 75 60 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Each employee shall report for work on time and be ready for work at his station at starting time Employees shall not quit work until the quitting signal sounds at noon and night. Hereafter, anyone so doing will be docked for the time lost." "The union will give it's full co-operation in the Company's enforcement of the rules as set forth in such notice of July 1, 1942 and such other rules as the company may establish from time to time." This still stands and we hope that we have your co-operation as you agreed to give in this notice, which you signed, I think in good faith. Hoping for your kind co-operation, I am Respondent calls attention to the fact that hours of work had been shortened from 9 to 8 per day. This change became effective with V-J Day, August 14, 1945 Works Manager Russ explained the delay in moving to eliminate the wash-up and afternoon rest period as due to the delicate situation created by the rivalry between District 50 and the C I 0 As stated above, this situation was not cleared up until January 24, 1946. Thereafter ensued the bargaining conferences and a strike on April 18, 1946. As Russ testified : Well, this was just about the time when our contract was expiring and we had two unions who had filed as bargaining representatives, so I thought it was very poor policy at that time to make any change of that type. One union would probably just use it as an electioneering point. Under the shortened hours, the afternoon rest or lunch period fell within an hour of 4 o'clock, the closing time.-' If wash-up time were also taken, the final period of work would be correspondingly shorter. Further, the Respondent stresses the substantial wage increase of 181/! cents an hour granted in the strike settlement. This materially increased the burden of deductions from the fuil work time paid for Russ gave the following testimony regarding the motives which caused the Respondent to discontinue the afternoon rest period and to eliminate the practice of employees using working time to wash lip: The change was made after we had gone into this new contract on 18r/ cents increase and felt that the wage increase was such that we would have to start to get some production out and cut down on lost time. We couldn't afford to be paying these high wages and them quitting work from 5 minutes to a half hour ahead of time. Q Now, it has been suggested-and that is an understatement-that we discontinued the lunch period and the wash up period because of the fact that these employees participated in this strike. A. No, there was no grounds for that at all. It was based entirely, I would say, on our higher labor costs. The undersigned concludes and finds that District 50 had accepted and on July 27, 1944, definitely bound itself to assist in enforcing Respondent's rule against quitting work before the end of working hours. Temporary laxness in enforcing the rule under stress of war conditions did not abrogate the rules. It must be remembered in this connection that District 50's contract lapsed on November 21, 1945, and that District 50 twice failed to show a majority status in secret Board-conducted elections. When bargaining began after District 50 was certified by the Board on January 24, 1946, the parties bargained de nova. re Some 18 employees in the mixing department who began a half hour earlier than other employees quit at 3: 30 p. m NATIONAL GRINDING WHEEL COMPANY, INC. 933 The elimination of the afternoon rest period after hours had been shortened was per se a reasonable regulation as defined by the Board in its Peyton Packing Company decision referred to above. Respondent had definitely raised the ques- tion of such change in hours of work during the bargaining conference which resulted in the agreement signed on July 13, 1946. It will be remembered that the previous collective bargaining agreement lapsed by its provisions on November 21, 1945. The new contract makes no mention of rest periods." It is an extensive and detailed document with comprehensive provisions as to work hours. The undersigned finds that the provisions incorporated in this agreement must be understood to comprehend all contractual obligations on this subject assumed by the Respondent. Further, it is found that District 50 by initiating grievance procedure, under the provisions established by that document, in effect accepted Respondent's regulations subject to District 50's rights under this grievance procedure. The record contains no direct evidence to support the Board's allegation that these changes were made "for the reason that a majority of said employees joined and assisted the Union and engaged in concerted activities with other employees for the purposes of collective bargaining and other mutual aid and protection." Rather the record indicates that the Respondent was motivated by a desire to make full use of the working time which it had agreed to remunerate at a sub- stantially increased hourly rate. The undersigned notes that District ^50 is in the position of seeking a remedy for these matters at the same time through the grievance procedure which culmi- nates in arbitration and through the Board's processes The charge was filed on July 19, 1946, and District 50 entered grievances on July 24 and 25 respectively. Under analogous circumstances the Board has recently said, It is evident that the Union has concurrently -utilized two forums for the purpose of litigating the matter here in dispute Although the arbitrator determined the issues before him within the framework of the 1943 agreement and expressly refrained from prejudicing the rights of either party before the Board, it would not comport with the sound exercise of our administra- tive discretion to permit the Union to seek redress under the Act after having initiated arbitration proceedings which, at the Union's request, resulted in a determination on the merits.' In the interest of ending litigation and otherwise effectuating the policies of the Act, we shall dismiss that portion of the complaint relating to the respondent's refusal to bargain as to the Employee's Manual 2 We do not thereby imply that the determination of an arbitrator is binding on the Board. Section 10 (a) of the Act provides that the power of the Board to prevent unfirir labor practices affecting commerce shall be exclusive and shall not be affected by any other means of adjustment or prevention that has or may be established by agreement. code. law, or otherwise [Citing cases 1 Moved by the considerations above stated and in conformity to this pronounce- ment of the Board the undersigned finds no merit in this allegation of the coin- 27 Respondent in its brief places emphasis on the inclusion in the Management Clause of the following provisions , quoting in part only, Subject to the provisions of this Agreement , the management and operation of the plant and direction of the working forces . to make and enforce reasonable rules to promote safety, efficiency, order, discipline, and protection of the Company property from sabotage or other sources are vested in the Company . [ Italics added 1 "Matter of ,The Timken Roller Bearing Co , 70 N . L R. B. 500. 934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plaint. It will accordingly be recommended that so much of the complaint as alleged that elimination of the afternoon lunch or rest pei iod constituted refusal to bargain collectively or that it amounted to discrimination in the hire or tenure or the terms and conditions of employment, be dismissed (c) Conferences on grievances which had reached the thud stage in the estab- lished procedure had been held but rarely Schnell, whose service with the Respondent antedated contractual relations between District 50 and the Respond- ent, testified that he could remember but one such conference Works Manager Russ corroborated this statement, testifying, "I think there was only one that was taken up to the last step . . . I don't know whether there was a meeting which was called for the third step or not." From the lapse of the 1945 contract on November 21, 1945, to the execution of a new agreement on July 13, 1946, no grievance conference had been held By August 15, 1946, over a dozen griev- ances were advanced to the third stage. The proposed conference required the attendance of the full grievance committee of five members. Schank gave unassailed and credited testimony relative to this matter recorded as follows, Mr. Taibi some time before the 15th of August had asked me if we would arrange for a third step grievance meeting; that there were a goodly number of them that had to be disposed of. My recollection is that I told him that I would take it up with the company and see just when we could get together and where, and on my best recollection, as in the complaint, it was on the 15th of August that Mr Taibi called me or I called hint. After I had talked the matter over with the company and at that time I suggested that after having talked with the company that the meeting be held at the Lafayette Hotel [Buffalo]. Mr Taibi said, "Well, that is all right with me, but how about the question of lost time?" "Well," I said, "Angelo, I have also talked with the company on that, and there will be no payment for lost time" There was some talk about having it at night, but nobody wanted to have the meeting at night, I think Mr Taibi nor myself, nor anybody else con- cerned. Mr, Taibi at that time said, "Well, if the company isn't going to pay for the time lost, we shall not have the meeting at the Lafayette Hotel Schnell estimated that preparation for the trip to Buffalo and return therefrom with the transaction of the business in hand would require an entire day. Schank and Works Manager Russ agreed in testifying, that the original sug- gestion as to this meeting place came from the Respondent. Russ explained that it had been customary to hold grievance conferences in the plant cafeteria. This was contiguous to the office. Russ further testified, , But I say it was interfering too much with the rest of the office, the talk, when the men would go out of the cafeteria out into the hall. It was dis- turbing the rest of the office. At the hearing in this proceeding, the Respondent reaffirmed its refusal to pay the committee members for time lost in attendance on third stage griev- ance conferences. However, Respondent's counsel further stated that its rep- resentatives would be willing to meet District 50 representatives on Respondent's property at any time mutually convenient to discuss grievances advanced to the third stage of the established procedure. The undersigned concludes and finds that the Respondent's proposal that third step grievance conferences be held in Buffalo was manifestly unreasonable- NATIONAL GRINDING WHEEL COMPANY, INC. 935 and amounted to a refusal to bargain collectively in these matters under the procedure established in the contract executed on July 13, 1946. (d) It has been customary for the Respondent to grant merit increases on an individual basis within the wage system established by its agreement with Dis- trict 50. During the bargaining conference certain employees informed their representatives that they were unjustly treated in that they were receiving less pay than other employees doing the same work Taibi then requested that information "of various wage rates and classifications" be given District 50, "so that we could more or less screen certain cases in the plant and try to eliminate certain grievances that existed." It was Taibi's further testimony that District 50 did not press the matter since its representatives felt that they could gather adequate information themselves Respondent's representatives at the time suggested that District 50 could take up individual adjustments of wages through the grievance procedure Nine such grievances were filed by District 50 on dates between July 29 and September 18. 1946 30 On October 15, 1946, Taibr addressed a letter to Works Manager Russ reading as follows : On behalf of our Local Union, we are requesting that you make available to us a list of names of the employees in your plant and their present in- dividual rates of pay. We would also appreciate having the information on the rates of pay that these same individuals received in October 1945. Please understand that this information is necessary to us in order that we may intelligently represent our people, and properly carry out the work on behalf of the Local Union. In addition, we would appreciate being advised by you when any individual wage adjustments are given by Management to any member of our Union. Trusting that you will send this information as soon as possible, I am . . . On October 21, 194(;, Ross acknowledged receipt of this letter and advised that the matter had been referred to Respondent's attorney At the lieaiing, Re- spondent stated that it did not comply with this request at any time. Works Manager Russ testified that on receipt of the letter from District 50 it was decided as "a matter of polieN . . that we couldn't open up our books to the Union giving them this information *1 Shank testified that after the matter was referred to him in conversation with Taibi he had stated "we could not give him that list at this time, as far as the individual rates of employees wei e concerned " Respondent in its brief ai gued in effect that District 50 by withdrawing its demand for this information during the bargaining conference is estopped from renewing the request later Respondent admits ui quendo that District 50 might have been entitled to this information while a contract was being negotiated. Howes er. if such a demand was withdrawn because of concessions made by the Respondent such withdrawal should be effective during the life of the contract. The record does not sustain this argument in that no Showing is made that such a trade was made Rather District 50 withdrew the demand in reliance on its ability to gather the information from its members 20 See Matter of Atlas Steel t Tube Co ., 68 N L R. B 868 Cf Matter of P. Lorillard Co , 66 N L. R B 615 11 Six were filed on July 29 ; another on August 12 , and two on September 18, 1946. 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board held in the Aluminum One Covi.pan J case' that the Respondent's refusal to furnish the Union job classifications and pay-roll information con- stituted a refusal to bargain The Board said, Even if it were conceded , as the respondent contends, that the Union could actually have secured the wage history of all the jobs in the unit from the employees themselves , such a prospect at the time of the respondent's refusal of that information must have seemed doubtful and certainly attended with great difficulty and loss of,time. In this situation , an employer bar- gaining in good faith would not have withheld the information requested, nor would the employees be privileged against its disclosure since the infor- mation is essential to the intelligent bargaining on their behalf required by the Act Upon these considerations , we are of the opinion , as was the Trial Examiner, that the respondent's refusal to disclose the information sought by the Union , and its failure thereby to clarify its incomplete state- ment of position as to the wage matters under discussions , were inconsistent with the principle of collective bargaining and served to promote controversy rather than to encourage agreement. This decision was sustained on this issue on appeal to the United States Circuit Court: 32 The Court said: Again we do not believe that it was the intent of Congiess in this legislation that, in the collective bargaining prescribed , the union , as representative of the employees , should be deprived of the pertinent facts constituting the wage history of its members We can conceive of no justification for a claim that such information is confidential . Rather it seems to go to the very root of the facts upon which the merits were to be resolved In determining what employees should receive increases and in what amounts , it could have been only helpful to have before the bargainers the wage history of the various employees , including full information as to the work done by the respective employees and as to their respective wages in the past, their re- spective increases from time to time, and all other facts bearing upon what constituted fair wages and fair increases . And if there be any reasonable basis for the contention that this may have been confidential data of the employer before the passage of the Act , it seems to us it cannot be so held in the face of the expressed social and economic purposes of the statute. Peti- tioner announced the increases it would bd willing to make but it refused to supply the wage history. From this refusal, we think the Board was justi- fied in concluding that petitioner had failed to cooperate wholeheartedly in collective bargaining. The undersigned finds these principles decisive of the instant issue. It will be noted that Taibi made his request for specified information after District 50 had presented nine grievances to the Respondent material to his request. The infor- mation requested was'mamfestly pertinent to enable the Union representatives to appraise intelligently these grievances and present them effectively before the Respondent. The information requested was in the possession of the Respondent and could have been assembled easily by it. While the Respondent admits that 3139 N. L. R. B 1286 at 1297. Cf Matter of J H. Allsoni if Company, 70 N L. R B. 377, issued August 26, 1946 in which the Board found refusal to bargain in a refusal of the employer to furnish the union information on merit increases during the contract period Such information the Board stated was "necessary to the Union in oider for it adequately to represent the employees on the subject of merit increases 32 Alnnimnant Ore Co. v. N. L. R. B., 131 F. (2d) 485 at 487 (C C A 7). NATIONAL GRINDING WHEEL COMPANY, INC. 937 it failed to furnish the information requested, it did not at the hearing advance any convincing explanation or defense for such failure Under these conditions the undersigned finds merit in this contention of the Board, and concludes as stated by the Board under closely similar circumstances, that such refusal by the ]Respondent was "inconsistent with the principle of collective bargaining" By demanding that the representatives of District 50 meet for the discussion of grievances at a point distant from Respondent's plant, and by failing to furnish information essential to the intelligent consideration of grievances as to individual wage rates, the Respondent has refused to bargain collectively within the meaning of Section S (5) of the Act. By these acts it has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The actin iiies of the Respondent set forth in Section III, above, occurring in connection with the operations described in Section I, above, have a close, intimate. and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices, the undersigned will recommend that it cease and desist therefrom and take certain of i niative action found necessary to effectuate the policies of the Act. The undersigned has found that on August 15 and October 21, 1946, the Re- spondent refused to bargain collectively with District 50 as the exclusive representative of the Respondent's employees within an appropriate bargain- ing unit, although District 50 on these dates was the statutory representative of the employees for the purposes of collective bargaining It will accordingly be recommended that the Respondent be ordered to bargain collectively with District 50 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1 District 50, United Mine Workers of America, Local 12419, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act 2 All production and maintenance employees of the Respondent, excluding watchmen, office and clerical employees. confidential employees, chemists, sal- aried employees, assistant foremen, foremen, and all other supervisory em- ployees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (h) of the Act 3 District 50, United Aline Workers of America, Local 12419, A. F. of L., on January 17, 1946, and at all times thereafter, has been the exclusive repre- sentative of all employees in the aforesaid unit for the purposes of collective bargaining with respect to rates of pay, hours, wages, or other conditions of employment, within the meaning of Section 9 (a) of the Act. 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4 By refusing to bargain collectively with District 50, on August 15 and October 21, 1946, as the exclusive representative of it' employees in the above- described unit, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act 5 By such refusal the Respondent has interfered with, restrained, and co- ereed its employees in the exercise of the rights guaranteed in Section 7 of the Act, and has thereby engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting ccmmerce within the meaning of Section 2 (6) and (7) of the Act 7. The Respondent has not committed unfair labor practices by discharging or refusing to reinstate Gerard Davignon, Earl Heubuscli and Eugene Clench on or about July 15, 1946, nor by discharging John Nightingale on May 9, nor by eliminating wash-up and lunch periods on July 15, 1946. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, National Grinding Wheel Company, Inc , its officers, agents, successors, officials, and assigns shall: 1 Cease and desist from: (a) Refusing to bargain collectively with District 50, United Aline Workers of America, Local 12419, A. F. of L., as the exclusive representative of all its production and maintenance employees employed at its plant, excluding watch- men, office and clerical employees, confidential employees, chemists, salaried employees, assistant foremen, foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline or otherwise effect changes in the status of employees or effectively recommend such action with respect to meeting for conferences on grievances at convenient times and locations and furnishing information to District 50 in regard to pay sates and changes and adjustments therein ; (b) Any other acts in any manner interfering with the efforts of District 50, United Aline Workers of America, Local 12419, A. F of L., to negotiate on behalf of the Respondent's employees in the appropriate unit. 2 Take the following affirmative action with the undersigned finds will effectuate the policies of the Act: (a) Upon request meet with representatives of District 50, at some convenient location in North Tonawanda, New York, for the discussion of grievances which have advanced to the third stage of the established grievance procedure ; (b) Upon request furnish District 50 with information in regard to pay rates and changes and adjustments therein such as will enable District 50 to discharge its functions as a statutory representative of the employees within the defined appropriate unit; (c) Post immediately at its plant at North Tonawanda, New York, copies of the notice attached hereto and marked "Appendix A " Copies of said notice, to be furnished by the Regional Director for the Third Region (Buffalo, New York), shall, after being duly signed by Respondent's representative, be posted by Re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted Reasonable steps shall be taken by Respondent, to insure that such notices are not altered, defaced, or covered by any other material ; NATIONAL GRINDING WHEEL COMPANY, INC. 939 (d) Notify the Regional Director for the Third Region in writing within ten (10) days from the receipt of this Intermediate Report and Recommendations, what steps Respondent has taken to comply therewith It is recommended that so much of the complaint as alleged the discriminatory discharge and refusal to rehire Gerard Davignon, Earl Heubusch, and Eugene Clench the discriminatory discharge of John Nightingale, and the elimination of wash-up and lunch periods, constitute unfair labor practices, be dismissed It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203 39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effective September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 203 38 of said Rules and Regulations, file with the Board, Rocharnbeau Building, Washington 25, D G, an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or pro- ceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof ; and any party or counsel for the Board, may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203 65. As further provided in said Section 203 39, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. CHARLES E PERSONS, Trial Examiner. Dated February 25, 1947. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that WE WILL NOT in any manner interfere with the efforts of DISTRICT 50, UNITED MINE WORKERS OF AMERICA, LOCAL 12419, A. F. OF L, to bargain collectively with us. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, hours of employment or other conditions of employment, will meet with this Union for the consideration of grievances at reasonable times and places in North Tonawanda and will furnish such pay-roll and wage data as will enable the representatives to intel- ligently and effectively represent the employees. The bargaining unit is: 940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All production and maintenance employees, excluding watchmen, office and clerical employees, confidential employees, chemists, salaried em- ployees, assistant foremen, foremen, and all other supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees or effectively recommend such action. NATIONAL GRINDING WIIEEL COMPANY, INC, Employer. Dated -------------------- By ---- ------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.