United Elastic Corp.

In the Matter Of UNITED ELASTIC CORPORATION and TEXTILE WORKERS UNION OF AMERICA, CIO Case No. 1-0-2864.-Decided June 29, 1949 DECISION AND ORDER On May 19, 1947, -Trial- Examiner Victor Hirshfield issued his Intermediate Report in the above-entitled -proceeding-, finding that the Respondent had engaged in and tivas engaging in certain unfair, labor practices in violation of Section 8 (1), (3), and (5) of the Act,' and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Intermediate Report, a copy of which is attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief, the Union filed a brief, and the parties argued orally before the Board. The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and briefs, the oral argument, and the entire record in the case, and, except to the extent consistent with the Decision and Order herein, hereby rejects the findings, conclusions, and recommendations of the Trial Examiner, for the reasons noted below. 1. On February 19, 1946, the Respondent and the Union entered into a collective bargaining agreement effective to August 1, 1947, and automatically renewable for yearly periods thereafter, contain- ing, inter alia, two clauses relative to strikes and work stoppages.2 1 The provisions of Section 8 (1), (3), and ( 5) of the National Labor Relations Act, which the Trial Examiner found were violated , are continued in Section 8 (a) (1), (a) ( 3), and (a) (5) of the Act, as amended by the Labor Management Relations Act, 1947. s ARTICLE VII It is hereby agreed that the Union will not initiate, authorize , sanction , support nor engage in any strike , stoppage, or slowdown of work and that the Employer will not lock out any employee or group of employees, since this agreement provides for the orderly and amicable settlement and adjustment of any and all disputes , differ- ences and grievances In case of an unauthorized strike , the Union agrees that it will loyally and in good faith endeavor to secure a return of the strikers to work to the end that the dispute may then be settled peaceably in accordance with the procedure set up herein. 84 N. L. R B., No. 87. 768 ,UNITED ELASTIC CORPORATION 769 On the morning of June 19, 1946, certain of the employees covered by the contract went on strike in protest of an alleged accumulation of - unsettled grievances, and a general strike developed early in the afternoon. Later that afternoon the Respondent, when called by a union representative, refused to discuss anything concerning the strike until the strikers returned to work .3 By letter dated June 21 the Respondent notified the Union that because the Respondent viewed the strike as a violation of Article VII of the contract, it was terminating the contract as of that date. Upon receipt of this letter on the following day, the Union officially sanctioned the strike, and on June 24 or 25 set up a picket line around the Respondent's plant, -which was maintained until September 9. On June 22 and 25, the Respondent placed advertisements in local newspapers advising the strikers that it considered the strike a breach of the contract justifying its termination, and inviting the strikers to return to work "without loss of rights." On the latter date the Respondent also advised the Union's representative that it would attend a conference requested by the Chairman of the Board of Conciliation and Arbitration of the State of Massachusetts but "would refuse to negotiate or discuss any matters until the employees went back to work." On the next day the Respondent advised the individual strikers by letter of this position, and that "All employees who return to work on or before Monday, July 15, will do so without loss of status." On July 12 -the Respondent announced a wage increase ,4 and so advised the strikers by letter, in which it also reiterated its position that it would not confer with the Union until they were all back at work, and again urged them to return to work. On August 2, 1946, the Union re- 'quested the Respondent to permit "All employees . . . to return to s ork on the same job, and with the same conditions then prevailing when a misuunderstanding took place on June 17, and without dis- crimination." In reply, by letter dated August 5, the Respondent denied knowledge of a misunderstanding on June 17 and reiterated its refusal to "enter into any -discussion until the plant is operating Footnote 2-Continued. ARTICLE VIII Discharge A. Just cause: The right to discharge employees shall remain in the sole discretion of the Employer, except that no discharge shall be made without just cause-just cause to mean, among other things , inefficiency, insubordination or persistent or serious infiaction of rules relating to the health or safety of other employees , or of rules reasonably promulgated by the management relating to the actual operation of the plant, or engaging in a strike or group stoppage of work of any kind , slowdown strike, sabotage , picketing or failure to abide by the terms oththis agreement or by the award of arbitration 8 When the union representative informed the strikers of the Respondent 's position at a meeting with them shortly thereafter, they stated "We are not going back until they mieet the committee and settle the grievances." 4 Effective as of July 8. ' 770 DECISIONS- OF 'NATIONAL; LABOR RELATIONS BOARD at normal capacity." On August 6, the Respondent sent another letter to the strikers inviting them to return to work by August 8, and also advised a union representative who had called in an attempt to dis- cuss settlement of the strike, that it "was sorry" but it "was not dis- cussing anything" relating to the strike.- By letter dated September 5. 1946, the Respondent notified the strikers that because they had not "complied with its requests of June 26 and July 12, 1946, to return to work . . . your name has been removed from the pay roll as of July 15, 1946, and your are no longer considered as an employee." On September 9, the strikers voted to return to work, and the Union in a letter dated September 10 so notified the Respondent, who took the position that the strikers had been properly discharged and would be treated as new employees if they wished to apply for reemployment. The Trial Examiner found that all the acts by which the Respond- ent refused to deal with the Union until the strikers returned to work were unlawful refusals to bargain with the Union in violation of Section 8 (1) and (5) of the Act, and he enumerates these as (a) the Respondent's reply to the Union on June 19 that it would not discuss any matter until the employees returned to work, (b) the letters of June 26, July 12, and August 5, (c) the newspaper adver- tisements, (d) the unilateral wage increase, and (e) the continued solicitation of the striking employees to return to work by supervisory employees.5 We disagree. When the strike occurred on June 19, 1946, there was in effect be- tween the Respondent and the Union a collective bargaining agree- ment Article VII of which obligated the Union (1) not to "initiate, authorize, sanction, support or engage in any strike, stoppage, or slow- down of work," and (2) "in case of an unauthorized strike," to "loyalty and in good faith endeavor to secure a return of the strikers to work to the end that the dispute may then be settled peaceably in accordance with the procedure set up herein." [Emphasis supplied.] Contrary to the position taken by the Union at the hearing and in its brief, we find that the work stoppage engaged in by the employees on the morn- ing of June 19 and which, during the day, developed into a full- fledged strike, was itself a violation of Article VII of the contract. The Union's position is apparently predicated on the theory that the obligations imposed by Article VII devolved not upon the employee- members of the Union but only upon the Union's officers, particularly the top officials, directly connected with the contract or the collective bargain; and that, therefore, because these officials did not initiate the 5 Although not discussed in the Intermediate Report, this apparently is a reference to the uncontroverted testimony of the Respondentls. personnel manager that ,- at various times ;during the latter' part of June, and again' In the middle of July, he contacted individual strikers by telephone in an attempt to get them to return to work. , UNITED ELASTIC` CORPORATION' ' 771, work stoppage 'or strike, and knew nothing about it until informed that the stoppage had occurred, the Union was absolved from any responsibility so far as the stoppage.or strike was concerned. Under the Union's theory, its only contractual obligation in these circum- stances was to "loyally and in good faith" attempt' to get the workers, to return to their jobs. Such a construction of Article VII is, in our opinion, unrealistic. While it is true that Article VII distinguishes between a formally called strike and an "unauthorized" strike, and while we agree with the Union that the work stoppage on June 19 and the strike that followed were, in their inception, "unauthorized" within the meaning of that term as used in the contract because not initiated or authorized by official union action, we find that the stoppage and strike nonetheless constituted a violation of Article VII. That Article VII was intended to constitute an agreement, binding upon the Union and its employee- members, not to engage in a strike, work stoppage, or 'slow-dowii,. whether or not such action was "unauthorized," is made clear when Article VII is considered in conjunction with Article VIII, which gives the Respondent the right to discharge employees for "engag- ing in a strike or group stoppage of work of any kind" [emphasis sup- plied]. Article VIII was obviously intended to implement the pro- hibition against strikes contained in Article VII by providing a specific penalty for engaging in the action prohibited by Article VII. And since Article VIII makes no distinction between "authorized" and "unathorized" strikes for.purposes of imposing the penalty, we think it only logical to conclude that no such distinction was intended to be applied to the prohibition. If the penalty is all-inclusive, surely the prohibition from which the penalty steins is likewise all-inclusive. Clearly, therefore, the import of Articles VII and VIII, when-read together as they should be, is that they prohibit any type of strike and similarly render employees who engage in any type -of strike subject to discharge. The fact that Article VII imposes an additional obliga- tion on the Union in the event of an "unauthorized" strike certainly should not be construed to relieve the Union and the employees from their contractual undertaking not to engage in a strike. Instead it adds to the Union's contractual obligations by requiring it, in the case of an "unauthorized" strike, to "loyally and in good faith" attempt to bring it to an end. We likewise find that there was a breach of the Union's obligation under Article VII to "loyally and in good faith endeavor to secure a return of the strikers to. work." It is true, as pointed out by our dissenting colleague, that when the union officials learned of the walk- out an'June 19 they immediately sent Vergados, an ixiternati tial-ilriibh. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative, to the plant to determine' the causes of the strike, and that Vergados at that time instructed local union leaders Dumas and Le Blanc to return to work and to try to induce the other strikers to do likewise. It should be noted, however, that at this time the strike had not yet reached its full proportions, and that Vergados' instruction was only in the nature of a preliminary action to be taken "until the end of the shift after which they were to report at the union hall." It was not until. the strikers met with the international union leaders on the afternoon of June 19 that the strike had reached its full pro- portions, that the union leaders were fully apprised of the situation, and that the Union was thus in a position officially to really determine its course of action. On that afternoon, and again on each of the following 2 days, Brown, the area director for the Union, met with the strikers on at least three different occasions to discuss the strike.6 Brown testified that he laid plans at this time to persuade the strikers to go back to work, but it is clear that he did not directly ask them to return to work at any of these meetings, and that he did not take any other affirmative action in that direction.' Moreover, so far as the record shows, no action was taken,at any of these meetings or elsewhere that could possibly be construed as a disavowal by the Union of responsi- bility for the strike or an attempt by it to fulfill its obligation "loyally and. in good faith" to end the strike. We believe that this complete failure by the Union to attempt to end the strike, or even to renounce it, during the 3 days following the walk-out, constituted a clear violation of the Union's obligation under the contract, in the event of an "unauthorized" strike, to "loyally and in good faith endeavor to secure a return of the strikers to work." 8 [Emphasis supplied.] In our opinion, this contractual obligation called for some affirmative act on the part of the Union during this period. Thus, on June 21, 1946, the Union was in violation of both of its obligations under the "no-strike" provision of the contract by which the parties had agreed to be bound. Moreover, there was no 6 The evidence indicates that there may have been a fourth meeting as well ' Brown testified further that no vote was taken at any of these meetings on the question of a return to work 8 In finding that the Union 's course in the 3-day period following the walk-out was thus one of complete inaction, we have not overlooked the testimony apparently relied on by the dissenting opinion as the basis for its finding that during this period Vergados Instructed the local union leaders and key workers to return to work and to attempt to Induce the other strikers to do the same . Allegedly, this was in addition to the similar action taken by Vergados on June 19 to which we have already referred we are of the opinion that this testimony , which was given by Vergados himself , has little probative value, in view of Vergados ' refusal to name the persons so instructed and his general vagueness concerning these incidents Nor do we consider general testimony as to Brown's "laying of plans to persuade the strikers to go back to work" during this period as the type of action that the contract required --,UNITED ELASTIC CORPORATION 773 prior breach of the contract by the Respondent that might justify such a violation. Under these circumstances, and also in view of the fact that the contract provided for a detailed procedure for adjust- ing the alleged grievances of the strikers which was intended to be a substitute for strike action, the Respondent's statutory obligation to bargain with the Union, at least with respect to matters related to the strike, was suspended as long as such wrongful strike action con- tinued.9 In our opinion, the stability of labor relations that the statute seeks to accomplish by the encouragement of the collective bar- gaining process ultimately depends upon the channelization of the collective bargaining relationship within the framework of a collective bargaining agreement, and the adherence thereto by the contracting parties. We feel, therefore, that the broad purpose of the statute and the interests of the parties will best be served by requiring such ad- herence. A different conclusion would not only militate against the statutory aim but also ignore the traditional sanctity attached to contracts by our system of jurisprudence. As the court said in the Timken case, "If adjudication bases no sanctions on commitments made therein by the bargaining agent, it imparts futility to a bar- gaining process hopefully developing in the interest of industrial peace." We find, therefore, that the Respondent's conduct in refusing to confer with the Union,10 in dealing with the individual strikers for the purpose of obtaining their return to work,1' and in instituting a wage' increase,12 was lawful. Nor do we believe, as does the Trial Examiner, that the Respondent's notification to the Union on June 21, 1946, that the contract was ter- minated as of that date, in any way altered the statutory rights and duties of the parties. As found above, the Respondent's obligation to bargain with the Union, at least with respect to matters related BTemken Roller Beating Co v N L R B , 161 F (2d ) 949 (C A. 6) reversing 70 N. L. R B 500 , Matter of Charles E. Reed & Co., 76 N . L. R B. 548; Matter of Dorsey Trailers, Inc, 80 N. L R B 478 10 It is true that the Respondent , when telephoned by the Union on the afternoon of June 19, refused at that time to discuss anything relating to the strike until the strikers returned to work. In . our opinion, however, the Union ' s request to discuss such matters at that time was premature , and, therefore , did not render the Respondent 's action unlawful even If the Union was not then in violation of the contract Article VII of the contract , as contended by the Respondent , clearly envisaged an attempt by the Union, in case of an unauthorized strike, to secure a return of the strikers to work before the causes of the strike should be discussed . Clearly, therefore , the Union , which had not even met with the strikers yet, was in no position to request bargaining with respect to the causes of the strike or any related matter. 11 Matter of Chat lea E Reed & Co , supra 22 We reach this conclusion because the wage Increase was effected in the midst of the Respondent 's campaign to secure the return of the strikers to work , and the letter to the strikers announcing the wage increase also contained a solicitation to return to work. We are convinced , in the light of these circumstances , that the wage increase was in reality an inducement to the strikers to return to work, and was, therefore , like 'the return-to-work solicitations , related to the strike 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the wrongful strike, was already suspended at that time. This suspension, however, was not dependent on the contract's continued existence, but grew out of the Union's wrongful action in striking, and, therefore, continued so long as that action remained wrongful. And, in our judgment, it was no less wrongful after the Respondent's notification of the termination of the contract than it was before. Accordingly, irrespective of whether or not the contract continued in effect after the Respondent's announced termination thereof, we find that the Union was still under a continuing duty to correct its wrongful action before the Respondent's statutory obligation to bar- gain concerning matters related to the strike. again became operative.13 Inasmuch, however, as all the Respondent's refusals to confer with the Union, all its solicitations of the individual strikers to return to work, and its wage increase, preceded any correction of the Union's wrongful action '14 all this conduct of the Respondent was lawful. We find, therefore, contrary to the Trial Examiner, that the Re- spondent's refusals to confer with the Union, its return-to-work solicitations, and its grant of a wage increase, were not violative of Section 8 (1) and (5) of the Act. 2. During the course of the strike, the Respondent solicited the strikers to return to work by means of (a) a newspaper advertise- ment on June 22, in which it stated that "The Company will welcome the return of its employees at their usual shifts on Monday, June 25th," (b) another newspaper advertisement on June 25, in which it stated that "The Company will gladly reinstate any of its employees without loss of rights," (c) a letter, dated June 26, to each of the strikers, in which it stated that "all employees who return to work on or before Monday, July 15, will do so without loss of status," (d) a letter, dated July 12, to each striker, in which it stated that "the sensible thing for you to do is to return to work," and promised that "there will be no discrimination against you either because you are a member or are not a member of the Union," and (e) a letter, dated .August 6, to each of the ,strikers, in which it stated that "If,you are interested in returning at this time, report immediately or call the office before Thursday, August 8, at 7 a. m." 15 On September 5, the Respondent discharged all employees who were still on strike."' On la The legal effect of the announced termination of the contract would be material here only if the Union had corrected its wrongful action and bad then met with a refusal by the Respondent to be hound by the contract. • 14 The first action of the Union that could possibly be found to be such a correction took place at the August 28 union meeting where, according to the testimony of Brown, the Union ' s area director , he advanced the idea of taking a vote on the question of a return to work, and "told the workers that it was useless to continue the strike." 15 The Trial Examiner omits any reference to this letter of August 6. Id This was done in a letter to each striker , which read , "The Company calls your attention to the fact that you have not complied with its requests of June 26 and July UNITED ELASTIC CORPORATION 775 September 9, the strikers voted to return to work, and the Union, in a letter dated September 10, so notified the Respondent .17 • Pursuant thereto, a large number of the strikers applied for reemployment on September 13 and 14. Some of those who applied were hired as new employees at different times thereafter, but many of the applicants were not offered-reemployment at any'time.Y8 Also not "Offeredreem- ploylnent at any time were a number of strikers who never made personal application therefor. The Trial Examiner found, in substance, that, by offering uncon- ditional reinstatement to the strikers, the Respondent condoned the action of the strikers in allegedly breaching the contract, and thereby waived any right to discharge them that it may have had because of the alleged breach. Accordingly, he found that the Respondent dis- charged those strikers who had not returned to work by September 5 and refused to reinstate them on September 12 or 13,19 in violation of Section 8 (3) of the Act. We disagree. When the employees struck on June 19,'they were subject to dis- charge under the specific provisions of Article VIII of the contract. Moreover, under well-established Board doctrine, the strikers were also subject to discharge because, as found above, they were striking in violation of contract 2° It is true, as pointed out by the Trial Ex- aminer, that we have qualified this right of discharge by holding that an unconditional agreement by an employer to reinstate such strikers operates as an effective condonation of the illegal strike, with a con- sequent waiver of the right to discharge.21 We have even held that a simple offer of unconditional reinstatement by an employer consti- tutes a waiver of the right to either discharge or refuse to reinstate employees who strike in violation of contract 22 In our opinion, how- ever, there are facts in the instant case which render it clearly distin- guishable from these prior cases. Thus, the first offer of reinstate- ment, which was made on June 22, required an acceptance by June 12, 1946 , to return to work. Therefore , your name has been removed from the payroll as of July 15, 1946 , and you are no longer considered as an employee " 11 This letter read : "This is to inform you that United Elastic workers have voted, at a meeting held at the Lowell Joint Board, T. W. U. A., CIO, headquarters, Monday, September 9, 1946, to return to work" 11 There is some controversy over a small group of applicants who the Respondent contends were offered jobs which they refused , but who the Board contends were either not offered jobs or were offered jobs other than those held by them prior to the strike In view of our decision herein, it is unnecessary , however, for us to resolve this controversy 10 As indicated above, the individual applications for reinstatement were made on September 13 and 14 rather than on these dates 20 See e. g. Matter of Scullin Steel Company, 65 N L R B. 1294 ; Matter of Joseph Dyson f Sons, Inc., 72 N. L. R. B. 445; Matter of The Fafnir Bearing Company, 73 N. L. R. B. 1008 ; and Matter of National Electric Products Corporation, 80 N. L. R. B. 995 21 Matter of Carey Salt Company, 70 N. L. R. B. 1099. 22 Matter of The Fafnir Bearing Company, supra. 776 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD 25, and was followed up on the latter date by a promise of no "'loss of rights" for those who took advantage of it. The second offer, which took place on June 26, when the first offer had expired, extended the acceptance date to July 15, and this offer too was supplemented by a further invitation on July 12 to accede to it. The third and final offer, which was' made on August 6, set August -8 as the new date by which the offer of reinstatement should be acted upon. On September 5,. which was almost a month after the deadline for accepting the Re- spondent's final offer of reinstatement, the Respondent discharged those employees who had still not responded to any of the offers. It is clear that each of the Respondent's solicitations to the striking em- ployees either set a very definite time limit within which it could be, acted upon by the strikers, or was a supplementary solicitation which came within the time limit prescribed by the previous solicitation. The Respondent's offers of reinstatement, although unconditional with respect to the retention of all employment rights previously acquired '23 were thus, *contrary to the finding of the Trial Examiner, conditional offers of reinstatement. Each of -them, including' the last one, had to be acted upon within its prescribed time limitation, and the failure of any striker to do so necessarily extinguished whatever rights he may have acquired by virtue of the offer. Inasmuch, therefore, as the Re- spondent not only waited until the time had elapsed on the last offer, but also gave the strikers almost a month more to take advantage of it, we find'that the Respondent's 'discharge on September 5 of those em- ployees who•had not abandoned the strike was lawful.24 Nor, as in the case of the Respondent's refusals to confer with the Union during the pendency of the strike, do we agree with the Trial Examiner's finding that, the Respondent's announced termination of the contract on June 21; 1946, nullified any right to discharge the strikers at a later time for an alleged breach of the contract. This right of discharge, like the suspension of the Respondent's obligation to, bargain, already existed when the announcement of the termination of the contract was made, so as not to be dependent on the contract's 28 And, as found by the Trial Examiner, adhered to by the Respondent when it reem- ployed those strikers who responded to the offers 24 We do not agree with our dissenting colleague that the Respondent refused to rein- state the strikers on August 2, 1946 , in violation of Section 8 (3), for the following- reasons ( a) The Union's letter to the Respondent on that date was not , in our opinion, an application for reinstatement by the strikers, but simply a request by the Union to bargain concerning the settlement of the strike ; (b) Even if the letter was such an, application , it was not an unconditional application so as to impose a legal duty on the Respondent to reinstate the strikers , being expressly conditioned on "a return to, work on the same job, and with the same conditions prevailing on June 17" . and (c) Even if the letter was an unconditional application tui reinstatement, it came' at a time when there was no outstanding offer of reinstatement by the Respondent that could be acted upon by the strikers because the July 12 offer had already expired and' the final offer had not yet been made , and the Respondent could, therefore , lawfully- refuse reinstatement at that time. UNITED ELASTIC CORPORATION 777 continued existence. Similarly, this right grew out of the employees' wrongful action in striking, and, therefore, continued so long as that action remained wrongful and thus unprotected concerted activity. And likewise, this action was, in our opinion, as wrongful after the Respondent's announced termination of the contract as before. Ac- cordingly, in the absence of a timely response by the strikers to the Respondent's offers of reinstatement, the Respondent's right to dis- charge them continued so long as the wrongful action of the em- ployees was perpetuated, and irrespective of the legal effect of the Re- spondent's declared termination of the contract.25 We find, there- fore, unlike the Trial Examiner, that the Respondent's announced termination of the contract on June 21 did not extinguish the right it otherwise had to discharge those employees who were still on strike on September 525 Since the Respondent's discharge of the strikers on September 5 was thus lawful, it necessarily follows, as contended by the Respondent, that it was free thereafter to exercise any choice it saw fit with respect to the reemployment of the dischargees. Accordingly, the Respondent could also lawfully refuse, as it did, to reemploy some of the dis- chargees, and to take back others on such terms as it chose to impose. And inasmuch as there is no evidence that shows that the choice of the Respondent in this connection was discriminatorily based on the dis- chargees' participation or non-participation in any protected concerted activity under the Act, the Respondent did not thereby violate the Act. In view of the foregoing, we find, contrary to the Trial Examiner, that the Respondent, by its discharge on September 5 of the strikers who had not returned to work, and by its refusal to reinstate them on September 13 or 14, or thereafter, did not violate Section 8.(3) of the Act. Since we have found that the Respondent did not violate either Section 8 (1), (3), or (5) of the Act, we shall dismiss the complaint in its entirety. 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 26 We find it unnecessary, therefore, to determine whether the right established by Article VIII of the contract to discharge strikers could he validly exercised by the Re- spondent after what might have been an effective termination of the contract by the Respondent. 20 Nor do we agree with the Trial Examiner's distinction that the Respondent did not discharge the strikers because they had violated the no-strike clause of the contract but rather because they "participated in concerted activities with their fellow employees" and refused to desert the strike The strike was the violation of the contract , and, therefore, the violation was necessarily the reason for the discharges , even though the letters of discharge did not include technical and precise legal language to that effect . Although the words of art may have been missing, the intent was clear. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations Board hereby orders that the-complaint issued herein against the Respondent, United Elastic Corporation, Lowell, Massachusetts, be, and it hereby is, dismissed. . CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. MEMBER HOUSTON, dissenting : I must disagree with the conclusion of the majority that the Union violated the "no-strike" provision of the contract. On the contrary, proper construction of the record as a whole convinces me that the conduct of the Respondent-its refusals to bargain, return-to-work solicitations, and unilateral wage increase, its discharge of certain of its employees, and its reinstatement of others on such terms as it arbi- trarily chose to impose-constituted a deliberate effort to escape its obligation to deal with the representative of its employees. Although the manner in which collective bargaining is pursued may be channeled and directed,by collective agreement between parties '21 in determining whether they have lived up to their bargain, the Board must be guided by the actual provisions of the contract.28 In this case. Article VII of the contract imposes two obligations on the Union with regard to strikes. It provides that : 1. ". . . the Union will not initiate, authorize, sanction, support nor engage in any strike, stop- page or slowdown of work . . ." and, 2. "In case of an unauthorized strike, the Union agrees that it will loyally and in good faith endeavor to secure a return of the strikers to work." The meaning of these pro- visions is plain and unambiguous. * Of course, the contract might have provided that the Union was to act as the insurer of the conduct of its members, and many contracts do, indeed, contain such a provision.29 But these parties did not so agree. They chose instead to agree specifi- cally and explicitly that the Union would "not initiate, authorize, sanc- tion, support nor engage in any strike...." The conclusion of the majority that the wildcat strike was itself a violation of the contract by the Union certainly cannot be supported by any provision, express or implied, in Article VII of the agreement. Nor can that conclusion be supported, as contended by the majority, by reference to Article VIII of the contract, which gave the Employer the right to discharge employees, among other reasons, for engaging in a strike. In recog- nition of the fact that employees sometimes do not observe agreements entered into by their bargaining representatives, such contracts often 27 N L R. B v. Reed d Prince Mfg Co , 118 F (2d) 874 (C. A 1) 2s Timken Roller Bearing Co v. N L. R. B., supra. 29 Strikes and Lockouts (Preliminary Draft), U S Department of Labor, Bureau of Labor Statistics, February 1947, pp. 3-6 Also see in this connection Basic Patterns in Collective Bargaining Contracts, The Bureau of National Affairs, September 1948, 15: 325. . UNITED ELASTIC- CORPORATION 779 provide additional obligations and remedies to meet this contingency. Like no-strike clauses, these provisions also are a matter of affirmative agreement and vary considerably in form and content.30 In this case, Article VIII merely provided the Employer with a remedy in the event that certain employees engaged in a strike. Even conceding that the Union's commitment that it would not engage in a strike was equally binding upon the Union members, it does not follow that their breach of the agreement constituted a breach of the contract by the Union, as the latter did not bind itself as an insurer or guarantor of their per- formance of the contract. An agent, by making a contract on behalf of a principal whom he has power to bind does not thereby become liable for its nonperformance.31 I can find no-conflict between the Employer's right under Article VIII to discharge strikers of any kind and the plain meaning of Article VII that the Union shall be responsible only for authorized strikes. But even if there were, it is well settled that "When one intention ap- pears-in one clause in an instrument, and a different, conflicting, inten- tion appears in another clause in the same instrument, that intention should be given effect which appears in the principal or more impor- tant clause." 32 In this contract, it is Article VII which fixes the responsibility of the Union in the event of a strike. Article VIII deals with the sepa ;ate subject of discharge for cause and the right of the Employer to discharge an employee for engaging in a strike is inserted in Article VIII as the last of a series of other causes for discharge. It is clear, therefore, that Article VII is the principal if not, indeed, the only clause dealing with union responsibility for strikes and that it should, accordingly, prevail. In any event, as the language of Article VII itself is precise and unambiguous, it should be given its intended effect 33 I believe that it is well settled that "a court will not under the guise of interpretation write a new contract for the parties." w It would seem appropriate and desirable for the Board to exercise a similar restraint. Otherwise, as the majority has made possible in this case, collective bargaining agreements are opened to all sorts-of distortion, and plain language may come to be so twisted that the value of written contracts becomes highly doubtful. so Strikes and Lockouts, supra, "Sanctions, Penalties and Remedies for Work Stoppages," pp. 17-27. "Penalty clauses as a deterrent to illegal or unauthorized stoppages are often provided in union agreements. These may apply to the union, to individual workers, or to the employer . . . Some agreements impose penalties upon the union when unauthorized strikes occur " i Restatement of the Law-Agency, Vol. II, Sec. 328. 82 Union Water Power Co. v. Lewiston, 101 Me. 564, cited with approval Williston on Contracts, Revised Edition, Vol. III, Sec. 624 3° Restatement of the Law-Contracts, Vol. I, Sec. 235. 34 Williston on Contracts, supra, Sec. 620. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A further serious consequence of this decision is also readily ap- parent. To find, as the majority have in this case, that the Union violated its contract by a concededly unauthorized strike, even though the Union, by the express terms of the contract, assumed only the obli- gation not itself to engage in a strike, (and there is no independent evidence by which the Union can be held responsible for the strike under any principle of agency) is to hold, in effect, that a labor organ- ization is liable for the acts of its members solely by reason of their membership in the Union. 35 But both the courts and Congress have rejected this harsh doctrine; 36 it is quite strange to me that we should now accept it. Finally on this aspect of the case, we must be aware that if an unauthorized strike can be attributed to a union so'simply, and an employer is permitted thereafter to disregard both his contract and the representative of his employees by individual dealing with strikers, then the Board itself has contrived a ready device for dissident em- ployees and collusive employers to subvert honest collective bargaining. Of course the real issue is whether the Union failed in its obligation to "loyally and in good faith endeavor to secure a return of the strikers to work," and on that issue I believe the evidence is substantial and convincing that it lived up to its agreement. The unauthorized strike was an eventuality anticipated by the contract and specifically covered by its terms. The contract did not provide that the Union would secure the return of the strikers to work in the event of an unauthor- ized strike but merely that it would endeavor to do so. Nor did the contract set forth the specific manner or the specific time within which this obligation was to be fulfilled. This provision of the contract must therefore be construed to mean that the-Union would in good as In this connection see Some Aspects of the Labor Management Relations Act, by Archibald Cox The Harvard Law Review , Vol LXI, No. 2, p 308, in which a no-strike clause almost identical to that in the instant case is cited as a means whereby a union may narrow its contractual undertaking so that it will not be liable for the strike action of its members as such. 86 United States v White, 322 U S. 694 , 702 (1944 ). See also Hill v. Eagle Glass if Mfg. Co, 219 Fed. 719 ( C. A 4, 1915 ) revd. on other grounds 245 U. S. 275, Russell if Sons v. Stampers, 57 N Y . Misc 96 , 107 N Y S 303, 308 (1947 ) ; Segenfeld v Friedman, 117 N Y Misc 731, 193 N. Y S. 128 ( 1922) ; Tannenbaum v. Hofbauer, 142 N. Y. Misc. 120, 253 N. Y. S. 90 (1931 ) , Fife v. Great Atlantic if Pacific Tea Co , 356 Pa . 265, 52 A. 2d 24 (1947) In discussing the responsibility of a union for unfair labor practices Senator Taft stated: ". . . I do not think there is anything in the fact that a union is an unincor- porated association which would bring about a condition in law that the act of every member is necessarily charged to the labor organization. No ; I think not. (Cong. Rec. 4142, April 25, 1947. ) "I think that the word 'agent ' as used here , [ Sec 8 ( b) ] as used in the contract section, and as used in other places in the bill , means an agent under the ordinary rules of agency , an agent of the labor union, the organization, as such. The fact that a man was a member of a labor union in my opinion would be no evidence what- ever to show that he was an agent." [Emphasis added ] (Ibid, p. 4561, May 2, 1947.) UNITED ELASTIC CORPORATION 781 faith make reasonable efforts to secure the return of the strikers to work and that such efforts would be made within a reasonable time. The work stoppage on June 19, 1946, surprised both the Union and the Respondent . Although it is true that at the union meetings be- tween the time of the work stoppage on June 19, 1946, and the Respondent's letter of June 21, 1946, terminating the contract, the Union failed to order the strikers to return to work, the record does not support the finding of the majority that there was a "complete failure by the Union to attempt to end the strike ... during the three days following the walk-out. . . ." The record reveals that when the Union learned of the walk-out on June 19 it immediately sent Vergados, an international union representative, to the plant to determine the causes of the strike . At that time, and also on June 20, in accordance with instructions from Brown, the area director for the Union, Vergados not only instructed the local union leaders to return to work but also instructed them to induce the strikers to go to work.37 Furthermore, from June 19 to June 22 or 23, Vergados urged the key workers to return to their jobs. Brown's omission at the union meetings to direct the strikers to return to work must be construed in the light of the surrounding circumstances. It becomes readily explainable and warranted by an inquiry into the causes of the unrest in this plant. The record shows that the strike was caused by an accumulation of unsettled grievances and, as is generally true of wildcat strikes, was attended by strong emotions. When Vergados told the union stewards to return to work and to direct the other strikers to return to their jobs, he was advised, as noted by the Trial Examiner, that "feeling was running too high in the plant at that particular time, and they were quite sure that the people would not return to work." Vergados nevertheless directed them to remain in the plant until the end of the shift and then report to the union hall . The strike spread, how- ever, from two departments to the entire plant. Brown thereupon telephoned Richards, who refused to discuss anything with Brown until the employees returned to work. Brown nevertheless told Rich- ards that he would try to find out the cause of the trouble and would call Richards back. In reply to Richards' reiterated refusal to dis- cuss any matter with the Union until the employees were back at work, Brown stated that he would telephone Richards in any event. At a meeting of the strikers Brown learned of their grievances. When he reported that the Respondent would not meet with him the employees refused to return to work . Brown thereafter made repeated unsuc- " The Trial Examiner mentions only the first part of this instruction. 853396-50-vo1 84-53 782,, DECISIONS OF NATIONAL,, LABOR , RELATIONS BOARD cessful efforts to reach the Respondent before the latter's abrogation of the contract on June 21. The Union's conduct, in these circumstances, cannot be described, as my colleagues have insisted, as a "complete failure . . . to at- tempt to end the strike . . ." Oil the contrary, it was genuinely reasonable. Surprised by the strike and without any knowledge of its causes, its immediate action, through Vergados, was to order the men back to work. Although they failed to do so, it continued to urge the most influential workers to return to their jobs. Furthermore, Brown testified that although he did not specifically direct the strikers to return to work at the union meetings between June 19 and June 21, he had laid plans to persuade the strikers to go back to work.38 The Union's efforts did not rest there. It attempted to inform itself more fully so that it could, intelligently, and with some prospect of success. persuade the employees to return. As part of this process it was natu- rally appropriate that it should at least speak to the Respondent. As previously noted, the unauthorized strike was a situation envisaged by the contract and expressly covered by its terms. The Union was the bargaining representative of the Respondent's employees and not only had not violated its contract but was, rather, attempting to fulfill its obligations under the contract. In these circumstances the Respond- ent was bound not to interpose arbitrary obstacles to the Union's efforts but to facilitate them by conferring with the representatives of its em- ployees. Surely it cannot be said that so general a provision of the contract precluded all liaison between the parties unless the Union's efforts were successful. Yet the Respondent repeatedly refused to discuss anything with the Union, adamantly insisting that the em- ployees must first return to work, although the contract merely pro- vided that the Union would endeavor to secure their return, and even though the Union was attempting in good faith to fulfill this obliga- tion. The Respondent, by its intransigeant attitude so'-goaded the strikers as effectively to frustrate the Union's efforts to get them back to work. In this situation any abrupt command by the Union to the strikers at that time to return to work would have been futile and might have resulted in arousing in the strikers a distrust of the Union, less- ened its influence with the strikers, and weakened its ability to per- suade them at a later date to return to work. In the face of these realities, it cannot be said that a delay of 2 days in the execution of the Union's plans was not a sound exercise in good faith of its discretion, 33 In explanation for his omission at the meetings to order the strikers back, Brown testified that "they were in no frame of mind to accept that kind of instruction. I felt it would be better to work with the stewards and local officers in an attempt to get them to change their minds about their determination to stay out of the plant." 'UNITED. ELASTIC CORPORATION 783 and a fulfillment of its contractual obligation at that point. Signifi- the Respondent itself admits that when it abrogated the con- tract on June 21, it did not know or attempt to find out whether the Union was making an attempt to persuade the employees to go back to , work, failing even to answer the Union's telephone calls. The mandate of the Act that parties bargain in good faith has rarely been flouted with such capriciousness. These facts convince the that the Respond- - ent quickly used what it considered a technical right to relieve itself of its obligation to bargain. Unlike the Tirnken case,39 there was in this case no mere exercise in good faith by the Respondent of a right to stand pat on a collective bargain.40 By its abrupt termination of the contract, its adamant refusals to meet or talk with union represent- atives, and its subsequent conduct in dealing with the strikers, the Respondent indicated a resolve to avoid the representatives of its employees. This it could not lawfully do. Coming now to the discharges of the striking employees, I must note here, as I have recently in my dissenting opinion in Matter of National Electric Products Corporation 41 that employees who strike, in violation of a contractual commitment not to do so do not forfeit their right to reinstatement if the strike grows out of the unfair labor practices of their employer. In that event, in my judgment, they cannot be denied, upon proper application, the right to be returned. to work without discrimination. It is true that in this case the em- ployees originally engaged in a wildcat strike and that such precipitate action, although readily understandable in cases of extreme provoca- tion by employers 41 is not to be condoned or encouraged. Granted the original lack of wisdom in their action, I' cannot find a reasonable basis for permitting this Employer to refuse to reinstate them when ae Hatter of Timken Roller Bearing Co. V. N. L R B., supra. 90 The Timken case , cited by the majority in support of its finding that the Respondent was excused from its statutory obligation to bargain with the Union , is clearly distin- guishable from the instant case and , in fact,supports a contrary conclusion. In the Timken case the union was striking in violation of a. no -strike agreement and was resorting to the use of economic force to compel a change in the terms of the contract although the contract itself provided procedures for the resolution of differences under the contract. In that case the employer insisted on the union 's compliance with the provisions of the contract. In the case before us the Union had not violated its contract , as it had not authorized the strike , and the Respondent, by its failure to allow the Union a reasonable time to attempt to persuade the strikers to return to work , prevented compliance with the contract . Like the union in the Timken case, the Employer here resorted to the use of economic force to exact, in effect, a change in the terms of the contract regarding a matter already covered by its terms-namely, the actual return of the strikers to work although the contract provided that the Union was merely to endeavor to secure their return. Whereas the employer in the Timken case insisted on the performance of the - contract , here the Respondent unlawfully attempted not only to alter the contract but actually terminated it. 41 80 N L R. B , No. 151. 41 See a reference to this possibility in Chairman Herzog's concurring opinion in the National Electric Products Corporation case, supra. 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they applied unconditionally on August 2, 1946, to return.43 Certainly no such basis exists in the fact that the employer solicited them- to return after it had abruptly terminated the contract by which their employment relationship was safeguarded, and thereby violated its obligation to deal with their representatives. Having prolonged the strike by its illegal termination of the contract, the Respondent may not now refuse them reinstatement. By doing so it unlawfully dis- criminated against them.44 But even if I admitted, for argument's sake, that the Respondent might have lawfully terminated the employment of these strikers, I would have to find that they were discriminatorily discharged. The status of strikers as employees is not automatically terminated because they strike in violation of their agreement not to do so. Such status may be terminated by affirmative and timely action of their employer.45 But the Respondent did not choose to exercise that right. On the contrary, it chose instead .to abrogate its contract and immediately thereafter to urge and solicit all striking employees to return to work. As noted by the majority, the Board has held that a simple offer of unconditional reinstatement by an employer constitutes a waiver of the right to discharge .4e The majority has attempted to distinguish the instant case from prior cases on the ground that here the offers of reinstatement were conditional. But I believe the evidence cannot be taken to support that view. The record shows that in its newspaper advertisement of Saturday, June 22, 1946, the Respondent advised all the strikers that "The Company will welcome the return of its employees at their usual shifts on Mon., June 24th." I am unable to perceive wherein this statement is in any way a "conditional" offer of reinstatement. June 24 was the next regular workday and the insertion of this date would here clearly appear to be descriptive rather than conditional. That the Respondent's offer of June 22 was not a conditional offer is further borne out by its newspaper advertisement of June 25 in which, without limitation, the Respondent stated that 41 As noted by they Trial Examiner , the Union wrote a letter to the Respondent, dated August 2 , 1946 , in which it "urge [ d] that all employees be allowed to return to work on the same job, and with the same conditions then prevailing when a misunderstanding took place on June 17th , and without discrimination," and attached "a list of all United Elastic employees , members of our Union , who are available to return to their jobs." 44The instant case graphically illustrates the fallacy of the majority 's contention in the National Electric Products Corporation case, supra, that the administrative processes of the Board obviate any necessity for employees resorting to a self -help in the face of a no-strike agreement even where, as in that case, an employer has committed an unfair labor practice. Followed to its logical conclusion, where, as here, the employer is guilty of a refusal to bargain , such a rule would compel striking employees to abandon their bargaining representative before returning to work while the employer would be permitted to enjoy the fruits of his wrongdoing pending a determination of the issue by the Board. It is interesting to note, in this connection , that the amended charge in this case was filed on September 26, 1946 ' " Matter of The Fafnir Bearing Company , supra; Matter of Dorsey Trailers, Inc., supra. 46 Matter of The Fafnir Bearing Company, supra. UNITED ELASTIC CORPORATION 785 "The Company will gladly reinstate any of its employees without loss of rights." [Emphasis added.] Even were the advertisement of June 22 to be construed as being conditioned on its acceptance by June 24, the advertisement of June 25 was a categorical and uncondi- tional offer of reinstatement which would constitute a waiver of such previous condition. Although offers of reinstatement subsequent to those in the newspaper advertisements of June 22 and June 25 may have been conditioned on their acceptance by specific dates, these offers were kept open by the Respondent's letter of August 6, 1946, at least until August 8, 1946. In none of the Respondent's offers was there any express or implied indication that the dates mentioned would operate as a cut-off point of their employment status and that a failure to accept the offers within the times specified would operate as a dis- charge. As a matter of fact, the Respondent made no affirmative effort to discharge the strikers until September 5, 1946. It is clear, there- fore, that in fixing acceptance dates in its later offers of reinstatement the Respondent was merely using a tactical maneuver to induce the strikers to abandon the strike and return to work.47 The Union made a timely acceptance of these offers when by its letter of August 2, 1946, to the Respondent it urged that all employees be allowed to return to work. This was not a request to bargain, as alleged by the majority, but an unconditional acceptance of the very- offer of the Respondent, and was no less so by reason of having been made by the strikers through the Union, which was their lawful representative.4s To hold that the striking employees, although not discharged, had to return individually would be to encourage the Respondent in its design to discredit the Union and avoid its obligation to deal with the representative of its employees. These considerations convince me that the Respondent violated Section 8 (1), (3) and (5) of the Act. INTERMEDIATE, REPORT Mr. Robert E. Greene, for the Board. Mr. Ben Wyle, of New York, N. Y., for the Union. Messrs. Edwards & Angell, by Mr. William C. Waring, Jr., and Mr. Edward T. Richards, of Providence, R. I., for the Respondent. STATEMENT OF THE CASE Upon an amended charge duly filed on September 26, 1946, by Textile Workers Union of America, CIO, herein called the Union , the National Labor Relations 47 In this connection see Matter of Majestic Manufacturing Company, 64 N. L. R. B. 950; Matter of General Motors Corporation , 67 N. L. R. B. 965; Matter of Rockwood Stove Works, 63 N . L. It. B 1297; Matter of Indiana Desk Company, 65 N. L. It. B. 76 ; Matter of Roanoke Public Warehouse, 72 N. L. It. B. 1281. 8 Matter of Rockwood Stove Works, supra. 786 DECISIONS OF'.NATIONAL LABOR, RELATIONS BOARD Board, herein called the Board, by its Regional Director for the -First Region (Boston, Massachusetts), issued its complaint dated December 16, 1946, against the United Elastic Corporation, herein called the Respondent, alleging .that the Respondent had engaged in and was engaging in unfair labor practices 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 complaint together with notice of hearing thereon were duly served upon the Respondent and the Union. - With respect to the alleged unfair labor practices, the complaint alleged in substance that since June 19, 1946, the Respondent had refused to bargain in good faith with the Union, although the Union since September 12, 1945, has been the exclusive representatives of all the Respondent's employees in an appropriate unit ; that the Respondent had, while its employees were on strike during the period beginning June 19, 1946, and ending on or about September 10, 1946, by means of personal contact with them as well as by means of tele- phone calls and letters, attempted to persuade, and in some instances did per- suade, such employees to desert the cause of the Union and to return-to work, despite the pendency of the strike and the existence of the Union as the exclusive representative of the said employees for the purpose of collective bargaining; and that the, Respondent discharged, certain named i employees on September 5, 1946, and had refused to reinstate them since on or about September 10, .1946,1 because of the prior refusal of these employees to coniply with the Respondent's demand that they desert the cause of the Union and return to work during the pendency of the strike upon which they were then engaged. The Respondent's answer denied that the Union was the exclusive representa- tive of its employees as alleged in the complaint, or that it had committed any unfair labor practices. Pursuant to notice, a hearing was held at Lowell, Massachusetts, from Janu- ary 20 to 27, 1946, inclusive, before Victor Hirshfield, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board, the Re- sijondent, and the Union were each represented by counsel, and all participated in the hearing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. A motion to dismiss at the conclusion of the Board's case, made by the Respond- ent, was denied. At the conclusion of the taking of testimony the parties argued orally, and thereafter the Board's counsel moved to amend the complaint to conform to the proof as to nonsubstantive matters. The motion was granted. Briefs have been filed with the Trial Examiner by counsel for the Board and the Respondent. 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 is a Massachusetts corporation operating plants in that Com- imonwealth• at Hampton, East .Hampton, Littleton, and Lowell, as well as other plants at West Haven, Connecticut, Stewart, Virginia, and Montgomery, Ala- bama. While the principal office of the corporation' is located at at Hampton, 1 A large number of employees who had been on strike indicated their desire to return to work on September 12 and 13, 1946. - Apparently the date, September 10, 1946, is an error. UNITED ELASTIC CORPORATION '787 it is with the plant at Lowell, Massachusetts, that the facts brought out at the hearing are principally concerned. At the Lowell plant the Respondent is en- gaged in the manufacture, sale, and distribution of elastic' webbing. The prin- cipal raw materials used in the manufacture of such webbing are cotton, rayon yarns, and rubber thread, annual 'purchases of which raw materials' by the Respondent for use in its Lowell plant exceed $650,000. Approximately 60 per- cent of these purchases is received by the Respondent from a point outside the Commonwealth of Massachusetts. The value of the products annually manu- factured and sold from this plant exceed $1,200,000, and approximately 90 per- cent of these finished products is shipped to points outside the Commonwealth o Massachusetts. Upon the basis of the foregoing findings of fact, and upon a stipulation to that effect entered into between the parties, the undersigned finds that the Respond- ent is-engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED Textile Workers Union of America; affiliated with the Congress of Industrial Organizations, is a labor organization-admitting .to membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain 2 1. The facts (a) Background On September 12, 1945, the Board issued a Consent Determination of Repre- sentatives, designating the Union as the collective bargaining representative for the Respondent's employees in an appropriate unit in the Lowell plant, after the Union had won a consent election conducted by the First Region of the Board. On February 19, 1946, the Union and the Respondent entered into a collective bargaining agreement. The agreement contained the following clauses, both of which have pertinency to the facts to be discussed. ARTICLE VII. It is hereby agreed that the Union will not initiate, authorize, sanction, support nor engage in any strike, stoppage, or slowdown of work and that the Employer will not lock out any employee or group of employees, since this agreement provides for the orderly and amicable settlement and adjustment of any and all disputes, differences and grievances. In case of an unauthor- ized strike, the Union agrees that it will loyally and in good faith endeavor to secure a return of the strikers to work to the end that the dispute may then be settled peaceably in accordance with the procedure set up herein: ARTICLE VIII. Discharge A. Just Cause : The right to discharge employees shall remain in the sole discretion of the employer; except that no discharge shall be, made without just cause-just 9 The findings as to the facts herein are based on testimony or other evidence which was, for the most part uncontradicted Where such contradictions occurred that fact will be noted and, where material, a finding with respect to such contradictions will be made. 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cause to mean, among other things, inefficiency, insubordination or persistent or serious infraction of rules relating to the health or safety of other em- ployees, or of rules reasonably promulgated by the management relating to the actual operation of the plant, or engaging in a strike or group stoppage of work of any kind, slowdown strike, sabotage, picketing or failure to abide by the terms of this agreement or by the award of arbitration. (b) The stoppage On -June 19, 1946, the workers on the first shift in the covered rubber depart- f•mentland the weave room, upon lreturning'from their regular lunch` period at 10: 30 a. in., refused to resume work. These two departments are the backbone of the plant, and a''majority of all the employees work in these two -:departments.' At the time of the stolpage, Albert-Richards, superintendent of the plant, was holding a meeting in the plant, office with his foremen and overseers. An assistant foreman, Arthur Longtin, telephoned Elmer McIntosh, overseer of ''the covered rubber department, who was present at the meeting, and informed him, that the employees in the two departments were not at work. McIntosh reported this fact to the meeting, and Richards sent McIntosh and Arthur B. Whitney overseer of the weaver department,'to investigate. McIntosh went to the covered rubber department and found that all of the employees had ceased work. He talked to Charles LeBlanc, president of the local union, and John Harriman who was the steward for the department.' LeBlanc told McIntosh that the stoppage had come about because the company had not settled grievances and because there were some people in the department who were underpaid. He asked McIntosh whether lie had called union head- quarters, and was told by the latter that he thought Richards was calling the Union. When he returned to Richards' office McIntosh was informed by Rich- .ards-that the latter had not called the Union, whereupon he immediately returned ,to, LeBlanc and reported that fact to him. LeBlanc then telephoned Hugh Brown, the area director for the Union, at union headquarters. At about the same time Whitney, the overseer of the weave department talked to Adelard Dumas, the steward of that department, and was informed by the latter that the cause of the stoppage was that the "office had refused to meet with the Union." Whitney reported this to Richards. Brown, having been advised of the stoppage by LeBlanc's telephone call, im- mediately sent Louis Vergados, his assistant, to the plant. Upon his arrival there Vergados spoke to LeBlanc and Dumas. According to Vergados, the two stewards informed him that the stoppage had been caused by an accumulation of grievances. Vergados told Dumas and LeBlanc to return to their departments and go back to work, and to report at the Union's office with the employees concerned at the expiration of their shift at 2:30 p. m. that afternoon. Dumas and LeBlanc told Vergados that "feeling was running too high in the plant at that particular time, and they were quite sure that the people would not return to work." Vergados instructed LeBlanc a As of June 19, 1946, there were 89 employees in these departments as compared to a total' employment of 142. 4 Neither LeBlanc nor Harriman testified 'at the hearing, and the findings herein as to what occurred between McIntosh and LeBlanc and Harriman are based on the former's uncontradicted testimony. ' UNTIED ELASTIC CORPORATION 789 and Dumas to stay in the plant in any event until the end of the shift after which they were to report to the union hall' In the meantime, Superintendent Richards conferred with Stanley Conant, manager of the Conant Houghton Division of the Respondent,' and other'od- cials. It was decided that a statement would be read to the employees by Rich- ards at 2: 30 p. m. of that day. At 2: 32, Richards read the following statement: I am not here for the purpose of discussion, merely to, make a statements I wish to advise you that the mill will remain open for those who wish to work. Those who continue to refuse to work must leave the plant at once. For your benefit I want you to know that this work stoppage is in viola- tion of the contract. Furthermore, if you continue to remain here without working, you are guilty of violating the civil law of trespassing on,private property. I want you to know that I do not know what this is all about, and when I find out I shall make a decision at the proper time. I wish to repeat : 1. This mill will remain open for those who want to work. 2. Those of you who wish to continue this unauthorized stoppage must leave` the plant. 3. I will give you twenty minutes to make up your minds ; whether to go back to work for the remainder of the shift, or if your shift is now over to start to work tomorrow morning. 4. Send your decision to my office within twenty minutes. [ Emphasis added.) Shortly after this statement was read, most of the employees left the plant, and a large number of these went to union headquarters. Most of the employees bound for union headquarters arrived there about 2: 45 p. in. Brown, after finding that employees from other departments in addition to those from the weave room and the rubber room were in the union hall, inquired from Vergados why those other workers were also present. Vergados replied that he did not know what it was all about. Upon questioning the work- ers, Brown found that almost all the employees from both shifts ^' were coming into the hall. Brown then went into his office and telephoned Richards. Rich- ards told Brown that he would not discuss anything with him until the em- ployees returned to work. Brown nevertheless told Richards that he would talk to the employees, find out what the trouble was, and call Richards back. The latter declared that he would not discuss any matter with the Union until the employees were back at work, to which Brown replied that he would call Rich- ards in any event. I • r , S Katherine Merrill, a cleaner and sweeper in the employ of the Respondent, and later quite active in personally soliciting the' return to work of some 30 striking employees; testified_ that she heard Vergados say to LeBlanc at this time; "Now you started it,, stick it out I'll see you this afternoon at the union hall ." She testified that this was the only part of the entire conversation between the two men that she heard, since they were talking "easy " The undersigned does not make any finding as to the significance of the alleged remark since it admittedly was only one sentence of the entire conversation between the two men. The Lowell plant is part of the Conant Houghton Division. 7 There were two,shifts operating ,at this time. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brown met with the workers and asked them to tell him their grievances. Brown then reported that the management would not meet with him, whereupon one of the workers arose and declared, "We are not going back until they meet the committee and settle the grievances." Brown then asked the assembled em- ployees, "Is that what you want?" The answer from the employees was "Yes." Brown testified that lie "laid plans to persuade them to go back," but did not directly ask the striking employees to go back to work immediately. After the meeting Brown tried to telephone Richards and Conant but was unable to reach either of them. Another meeting was held at the union hall on June 20 and a third meeting was held on June 21. It is clear that Brown did not directly ask the employees to return to work at any of these meetings:-' In the meantime, Brown had again endeavored to reach Conant and Richards by phone on June 20, but without success. On June 21 the Respondent wrote a letter to the Union'which read as follows : Mr. EMIL RIEVE, General President, Textile Workers Union of America, 15 Union Square, New York 3, New York. DEAR SIR: On Wednesday, June 19, 1946, a sit down strike and work stop- page took place on the first shift in several departments at our Lowell plant. Since then this action has developed into a strike in several departments which has continued to date. This action is in violation of Article VII of an agreement entered into on the 19th day of February, 1946, by and between UNITED ELASTIC COR- PORATION, Conant Houghton Division, Lowell, Massachusetts, and the TEXTILE WORKERS UNION OF AMERICA (C. I. 0.). The Company hereby notifies you that the contract is terminated as of this date. Yours very truly, UNITED ELASTIC CORPORATION, • CONANT HOUGHTON DIVISION, STANLEY F. CONANT, Manager. Copies of the letter were, sent--to Brown and to Mariano Bishop,'the- Northern Cotton, and- Rayon Director of, the Union, as well as to Emil Rieve, General President of the Union. (c) The strike Upon, receipt of this letter-Brown telephoned Bishop and it was agreed -between them that the strike which up to that point had been unauthorized, should be "sanctioned" by the Union, and that, a picket line should be set up around the Respondent's plant: Such a picket' line :was in fact established on June 24 or June 25, 1946, and was maintained until September 9 of the same year. Prior to the establishment of the picket line, the Respondent placed-an adver- tisement in the local newspaperion June 22, which read as follows : ' To the Employees of United Elastic` Corp., Conant Houghton Div., Lowell, On June 19„ 1946, a sit down strike occurred in several departments on the first shift. This dater developedi into a, strike of the employees of these several departments. Up to this time the company has received no official, communication from the union relative to this situation. THIS ACTION IS IN DIRECT VIOLA- UNITED ELASTIC- CORPORATION 791 TION OF THE AGREEMENT. SIGNED ON FEB. 19, 1946, BY OFFICIALS OF THE COMPANY AND THE UNION. THE COMPANY WILL WELCOME THE RETURN OF ITS EMPLOYEES AT THEIR USUAL SHIFTS ON MON., JUNE 24th. - UNITED ELASTIC CORP., CONANT HOUGHTON Div., ALBERT RICHARDS, [Capitals in original.] - Superintendent., Another. advertisement -appeared in the local newspapers on June 25. In 'sub- stance the Respondent'informed its employees in this advertisement that it had terminated the contract and gave its reasons for doing so. This advertisement concluded with the statement that : The Company will gladly reinstate any of its employees without loss of rights. On June' 25 the Respondent received a telegram from Charles H. Cole, chair- man of the Board of Conciliation and Arbitration of the State of Massachusetts requesting that it attend a conference on Thursday, June 27, to discuss the strike. Bishop had telephoned the attorney for the Respondent on June 25, and had been informed by the latter that he would attend the conference, but that "the Com- pany would refuse to negotiate or discuss any matters until the employees went back to work." The Respondent advised the strikers in a letter dated June 26, 1946, of this position and stated that : All employees who return to work on or before Monday, July 15, will do so without loss of status. The State Board recommended that "the employees return to work under the conditions and the contract prevailing at the time they went out, and thereafter the grievances and differences would be discussed . .' . and seniority- rights would be maintained." The-Respondent refused to agree to these conditions, and steadfastly maintained the position enunciated by its attorney to Bishop. On July 12 the Respondent announced to its employees that it was increasing wages by 8 cents an hour effective as of July 8. It is admitted that this wage increase was entirely unilateral, there having been no mention or discussion-of it with the Union. The following letter in which the increase was announced was sent to all employees still out' on strike : JULY 12,1946. To our employees: The Company acted in good faith when, it negotiated and signed the contract with you and your Union. In this contract you and the Union guaranteed the Company that there-would be no sit downs or strikes. You and your Union broke, this guarantee by a sit down and a strike. The Company, therefore, has terminated the contract. Regardless of what anyone may tell you, the Company will not discuss any matter with the Union until you are all back to work. There will be no discrimination against you either because you are, a member or are not a member of the Union. You will not be required by the Company to remain a member of the Union to hold your job. - No Union dues will be deducted from your wages. The, Conant Houghton - Division has raised the wages, of - all employees 8 cents per hour, effective July 8, -1946. : - - - I,- 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD You are losing wages unnecessarily and without justification. The sensible thing for you to do is to return to work. [Emphasis added.] On August 2 Brown wrote Richards asking the Respondent to permit "all employees ... to return to work on the same job, and with the same con- ditions then prevailing when a misunderstanding took place on June 17, and without discrimination." The Respondent replied to Brown in a letter dated August 5, which, in substance, read as follows : Regarding your letter 'of August 2, 1946, would state that we have no knowledge of a "misunderstanding which took place on June 17." In spite of many instances of intimidation and threats on the part of your group, a number of those who went out on June 19 have returned to their jobs without any discrimination. In addition to their regular wages they have received the general increase of 8¢ per hour which had been announced as effective on July 8, 1946. Our employees all know that the plant is open and in operation. They also know that the contract has been voided after it was broken with your knowledge and consent. The Company's position remains unchanged. The Management will not enter into any discussion until the plant is operating at normal capacity. On August 28 the Union held another meeting at which a vote was taken on the question as to whether or not the strikers should return to work ; the vote was in the negative. On September 5, 1946, the Respondent wrote another letter to those of its employees who were still on strike. That letter follows, substantially in full: The Company calls your attention to the fact that you have not complied with its requests of June 26 and July 12, 1946, to return to work. Therefore, your name has been removed from the Payroll as of July 15, 1946, and you are not longer considered as an employee. You are not covered by the Group Insurance plan at present. If you are re-employed by Sept. 15, 1946, you will be reinstated as of date of reem- ployment. New employees are being-hired and require locker space. Please arrange to call at the plant to remove the contents of your locker. If you wish to be considered for reemployment, telephone Mr. Andrew Jenkins for an appointment for an interview. On September 9 the striking employees, by secret ballot, voted to, return to work, and the Union, in a letter dated September 10 so notified the Respondent. The Respondent thereupon took the position that the employees had been properly discharged and if they wished to apply for reinstatement, they would be treated as new employees. A large number of the strikers applied for reem- ployment on September 13 and 14. A number of those who applied for work were rehired as new employees but many of the returning strikers were not offered reemployment. 2. The contentions of the parties as to the refusal to bargain (a) The Board's contentions It is the 'contention of the Board that a series of grievances which were the cause of the stoppage on June 19 while not alleged' to be unfair labor practices, UNITED ELASTIC CORPORATION 793 were nevertheless demonstrative of such a course of action on the part of the Respondent as would show that it violated both the "letter and the spirit" of the contract. In its brief the Board argues that "it cannot be denied that they (the grievances ) at least show a most cavalier attitude on the part of the Respondent with regard to its duties under the contract and under the National Labor Relations Act to bargain collectively ..." The Board further contends that the speech made by Richards at 2: 30 p. m. on the day of the stoppage "was highly provocative and was 'certainly instru- mental in bringing about the total cessation of operations ." The Board then goes on to argue that Brown used his best efforts as required by the contract to get the employees back to work , that the termination of the contract by the Respondent was a breach of the contract , and that the Respondent had violated Section 8 (5) of the Act by the conduct of Richards in his conversation with Brown on the afternoon of the strike, by its letter of June 26 and July 12, and by the admittedly unilateral general wage increase granted to its employees on July 8. Finally the Board contends that the letter of August 5 addressed to all the employees who were then out on strike and soliciting their return to work, the advertisements in the newspapers described in the preceding section, and the stipulated fact that supervisory employees solicited the striking employees to, return to work, were all violations of Section 8 (5). (b) The Respondent's contentions The Respondent contends that the series of grievances which admittedly were the cause of the stoppage of June 19, should properly have been settled by means of the grievance procedure set up in the contract , and that "the company is not subject to censure or criticism because the Union did not" use the grievance procedure. With respect to the question as to whether the stoppage was authorized by the Union, the Respondent argues that since both LeBlanc and Dumas partici- pated in it, the stoppage must have been part of a plan of action by the Union ; it cites the further fact that since the two departments where the stoppage occurred were not on the same floor , the action must have been a "concerted" one. With respect to the duty of the Union to "endeavor to secure a return of the strikers to work" the Respondent argues that the Union failed in this duty and that therefore it was justified in terminating the contract when it did so. It is further argued that Richards acted "strictly within the terms of the contract" when he told Brown on June 19 that he "would not discuss any matters until the employees were back at work." Counsel for the Respondent in his brief emphasizes that the language of Article VII of the contract clearly contemplates such a course of conduct in the eventuality which occurred herein. He argues that even if the strike was an unauthorized one this Article provides that "in case of an unauthorized strike, the Union agrees to endeavor to secure a return of the strikers to work to the end that the dispute may then be settled peaceably in accordance with the procedures set up herein" [emphasis in brief], and that there was therefore no obligation on the part of the Respondent to do anything but wait until the Union had secured the return of the strikers , at which point the grievance procedure would have been properly called into play. As to such further violations of Section 8 (5) as are alleged by the Board, with one exception , the Respondent contends that since the Union 's position 794 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD was "Talk to us first , and give us what we want, and then we'll tell the workers to go back" and the Respondent's position was "You get the workers back to work and we'll talk to you," that this "interchange of positions was in and of itself collective bargaining."' The Respondent amplified this position by argu- ing that the newspaper announcements and the letters of June 26 and July 12 were, in effect, offers to the employee 's of their jobs "without loss of status . . . and rights," and that this meant that they would return to work with the same collective bargaining agent which they had previously had, and that there was therefore no attempt to "circumvent the Union." The exception referred to above, relates to the unilateral granting of a wage increase. The Respondent argues that this increase was in line with increases given generally in the textile industry and that it did not prolong the strike since it conferred a benefit to the employees rather than taking one away. 3. The appropriate unit The complaint alleged that all of the Respondent 's production and maintenance employees employed at the Lowell plant, excluding office and clerical employees, watchmen, executives , foremen and assistant 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 a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the , Act. The Respondent admitted the appro- priateness of this unit in its answer, and no further proof was adduced in sup- port of this allegation at the hearing. ` The undersigned finds that the above-described unit at all times material herein constituted, and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 4. As to the representation by the Union of a majority in the appropriate unit In its complaint , the Board alleged that the Union had been since September f2, 1945, the exclusive representative of the employees in the foregoing appro- priate unit. The Respondent , in its answer,'denied that this was the case. At the hearing however, the Respondent stipulated that the Union represented a majority of its employees at least as late as January 19 , 1947, the day preceding' the opening of the hearing. Although Conant testified that he had some doubt after the latter part of August 1946, as to whether the Union represented a majority of the employees, this doubt was never expressed to the Union, and in view of the aforementioned stipulation , the undersigned finds it unnecessary to proceed further with a discussion of Conant 's testimony relative thereto. The undersigned finds that on September 12, 1945, and at all times thereafter, the Union was, and now is, the duly designated representative of the majority of the employees in the aforesaid appropriate unit, and that by virtue of Sec- tion 9 ( a) of the Act, the Union at all times was, and now is, the representative of all the Respondent's employees in such unit for the purposes, of collective bar- gaining in respect to rates of pay , wages, hours of employment , and other condi- tions of employment. 5. Conclusions as to the refusal to bargain It is clear , and the undersigned so finds, that the Union did not avail itself of the contract grievance machinery to remedy the grievances , fancied or real, 8 These are quotations from Respondent's brief. UNITED ELASTIC CORPORATION 795 which the Union felt it had. It may well be, as contended by the Board, that the attitude of the Respondent with respect to these grievances was "cavalier." Nevertheless, the Board at no point contended that this "attitude" was either a refusal to bargain or a violation of Section 8 (1) of the Act . The Respondent had entered into a contract in what must be interpreted as good faith, and although there were differences between the parties, such differences could quite conceivably have been ironed out if the union members had been willing to abide by and use the grievance machinery set up by the terms of the contract. Although it is true as the Respondent argues that Union officials LeBlanc and Dumas participated in the stoppage , the undersigned cannot agree with the Respondent's contention that the stoppage was authorized by the Union at the point of its inception . As a matter of fact Richards , in the statement prepared by the officers of the Respondent , which was read to the employees at 2: 30 p. m. on the day of the stoppage, refers to it as an "unauthorized stoppage." The testimony is clear that the stoppage was unauthorized at least until the employees met at the union hall on June 19 , 1946, and had decided to stay out on strike after hearing from Brown what Richards had told him. The Respondent argues that whether the stoppage was authorized or not, Article VII of the contract created an obligation upon the part of the Union, in case of an unauthorized strike, to endeavor to secure the return of the strikers to work. It argues further that Brown did not make such efforts and that therefore the Union breached the contract , and the Respondent was justified in notifying the Union that the contract between the parties was at an end, and that further, the Respondent had a right to refuse to negotiate with respect to the grievances till the Union terminated the strike. Whether or not the Respondent was justified in terminating the contract is not material to the issues herein. The important question here is whether the Re- spondent had the right to refuse to bargain with the Union as the representative of its employees. In Matter of The Tainken Roller Bearing Company , 70 N. L. R. B. 500, the Trial Examiner stated in his Intermediate Report in language which was later adopted by the Board : The authority of the Union to represent the employees stems from the fact of its majority status, and is statutory rather than contractual in character. After discussing the nature of the duties of the Respondent to bargain collectively with the majority representative, the Intermediate Report in the Timken case supra, goes on in the following language: Nor are the obligations of the employer , as outlined above, changed by the intervention of a strike. The exclusive right to handle grievances for employees within the unit, is not something which the respondent has granted the Union as a concession , or in trade for a consideration, to be withdrawn if the consideration fails, but a right given the bargaining agent by the Act . As the Board held in the Columbian Enameling case,26 where the Union called the employees on strike during the life of a contract con- taining a no-strike clause: 25 N. L R . B. v. Columbian Enameling and Stamping C0 , 306 U S 292, affirming 96 F. 2d. 948 ( C. C A. 7 ) setting aside 1 N. L. R. B. 181 on other grounds See also : N. L R B v Reed ct Prince Arfg Co., 118 F. 2d. 874 (C . C. A 1), enforcing 12 N. L it. B. 944 , cert. denied 313 U. S 595 796 DECISIONS OF .NATIONAL, LABOR RELATIONS BOARD "Employees do not cease to be such because they have struck. Collective bargaining is an instrument of industrial peace. The need for its use is as imperative during a strike as before a strike. By means of it a settlement of a strike may be secured." To hold that the respondent was under no obligation to discuss with the Union the grievances of employees on strike, would be to relegate them to the position of having to bargain individually with their employer, or to leave grievances unredressed. Neither of these alternatives is tenable. The right of the respondent's management to speak for the respondent on corporate matters would not be affected by a contract violation by the man- agement. So here, the Union remained the sole bargaining agent of the respondent's employees in the unit, regardless of whether' the strike of October 15 was in violation of the Union's contract. If the respondent felt itself legally injured by the act of the Uni in calling the strike, it could have sought such redress as local or State laws might have afforded it. It was not within its province to attempt to discipline the collective bargaining repre- sentative of its employees by refusing to accord it the recognition guaranteed by the Act. In adopting the Trial Examiner's Intermediate Report in the Tinnken case, supro; the Board in footnote 9 of its Decision said the following: We also concur with the Trial Examiner's conclusion that the existence of a strike allegedly in violation of a no-strike clause does not impair the obligation to bargain. It is the declared policy of the Act to mitigate and eliminate obstructions to the free flow of commerce by encouraging the practice and procedure of collective bargaining. A no-strike clause is designed to keep disputes from interrupting the respondent's operations but, as the case under consideration amply demonstrates, it constitutes no guar- antee that such interruptions will not occur. Unless the statutory duty to' bargain collectively is held to remain in force even after a labor contract previously made has been broken, the purpose of the Act to promote in- dustrial peace through collective bargaining will be attained only in small measure. Consequently, the refusal of the respondent to bargain with the Union after the strike is a violation of Section 8 (5) of the Act Cf. N. L. R. B. v. Highland Shoe, Inc., 119 F. 2d 218 (C A. 1) ; Matter of Con, sumers Veneer & Lumber Company, 63 N. L R B 17, 25, 40. In the instant case, although the abrogation of the contract by the-Respondent may have been justified by the circumstances, there is no question that whether the contract remained in effect or not, the Union was still the collective bargain- ing representative of the employees and that the Respondent could not deal directly with its employees after it had already refused to bargain with the Union on June 19, either to secure their return to work or to give them an increase in wages without consulting the Union. Thus, all the acts by which the Respondent refused to deal with the Union until the employees returned to work, were in effect, refusals to bargain with the Union. Richards' reply to Brown on June 19 that he would not discuss any matter until the employees returned to work, the letters of June 26 and July 12, as well as the letter of August 5, the newspaper advertisements, .the unilateral increase of wages given by the Respondent to its employees, and the continued solicitation of the striking employees to return to work by super- visory employees, were, and are hereby found to be refusals to bargain with the Union as the exclusive representative of the employees. UNITED ELASTIC -CORPORATION 797, The contention that Richards acted "strictly within the terms of the contract" when he told Brown that he "would not discuss any matters until the employees were back at work" suffers from still another weakness. The Respondent in arguing that the Union had breached the contract and that therefore the Re- spondent was justified in terminating it, apparently overlooks the fact that if the contract no longer existed, the obligation of the Union to carry its grievances to the grievance machinery no longer continued. Since the contract has been terminated by the Respondent and since it refused to reinstate the contract this position would leave the Union with no avenue for negotiating the differences between the parties Thus, even if the Respondent were right in its contentions that Richards could have justifiably refused to deal with the Union while the latter was "violating" the contract, the Unions' obligations thereunder were at an end after the contract was terminated, and it had the right to direct its efforts at settling the dispute thereafter by negotiating the grievances. But the reply of the Respondent to the Union after the alleged breach and after the termination of the contract was still the same, namely, to get the employees back to work before negotiations of any kind could proceed. The undersigned finds that the Respondent has refused and now refuses to bargain collectively with the exclusive representative of its employees within the meaning of Section 8 (1) and (5) of the Act. B. Interference, restraint, and coercion; the discriminatory discharges The Board alleged in its complaint, and the Respondent denied in its answer, that the Respondent had discriminatorily discharged certain named employees on or about September 5, 1946, and that it had refused to reinstate them at all times since September 10, 1946. 1. The applicable facts As has been described above, the employees of the Respondent went out on an unauthorized strike on the morning of June 19, 1946 . Thereafter they came to the union hall and spoke to Brown. Brown, at about 3 p. m. of the same day, telephoned Richards to discuss the matter with him. Richards ' answer was that he ' would not discuss anything with the Union until the employees went back to work. Subsequent attempts on Brown 's part to reach Richards and Conant were unsuccessful . On June 26, 1946, the Respondent wrote to its striking employees and advised them that "all employees who return to work on or before Monday , July 15, will do so without loss of status ." On July 12, 1946, the Respondent again wrote to its employees and said, "You are losing wages unnecessarily and without justification . The sensible thing for you to do is to return to work." The Respondent admits that its letter of September 5, 1946, constituted "the separation of these employees from the company 's pay roll." The first paragraph of this letter contains the following statement : The Company calls your attention to the fact that you have not complied with its requests of June 26 and July 12, 1946, to return to work. Therefore your name has been removed from the payroll as of July 15, 1946, and you are no longer considered as an employee. On September . 12 and 13 , 1946, the strikers unconditionally offered to return to work but were refused employment. 853396-50-vol 84-54 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In order to clarify the issues the undersigned will deal with the legal issues involved in the discharges considered as a whole, and will thereafter discuss the, questions- raised concerning the' individual discharges. 2 The Board's contentions as to the legal issues The Board contends that "each of the employees named in the complaint was discharged by the Respondent during the course of the strike, . . . for having participated in union activities and for having refused to act upon the Respond- ent's exhortations of June 26 and July 12 to return to work." It is the further contention of the Board that "The strike, whatever its primary cause, was extended and, prolonged by the unfair labor practices com- mitted by the Respondent during its course, . . . including the refusal to bargain . ... and its unilateral granting of, a wage increase without prior consultation with the Union." 3. The Respondent's contentions as to the legal issues The Respondent contends that there were no demands made on it prior to the strike and no reason was advanced "why the employees walked out in breach of the contract." Under such circumstances, the Respondent contends that the strike was not caused by any unfair labor practice on the part of the company. The Respondent then argues that "since no unfair labor practice was involved, this strike, in breach of contract, justified the company in discharging these workers." In support of this position the Respondent cites the Sands Mfg. Co' case, and the following language from the Supreme Court decision therein which it con- siders as "particularly applicable" : 10 .. . The Act does not prohibit an effective discharge for repudiation by the employee of his agreement, any more than it prohibits such discharge for a tort committed against the employer . . . The Respondent' also 'cites Article VIII of its contract. which has : been set forth in full in the first part of this report. Of particular applicability, argues the Respondent, is that section of the Article which reads as follows : The right to discharge employees shall remain in the sole discretion of the Employer, except that no discharge shall be made without just cause- just cause to mean . . . engaging in a strike, or group stoppage of work of any kind, slowdown strike, sabotage, picketing. The Respondent asks the question "How can the Union, which bargained away the right to protest a discharge for engaging in a strike or stoppage, now be heard to protest when the company discharged the strikers?" It is also the Respondent's position that after "the employees took it upon themselves to walk out and thereby terminated their employment with the company . . . the company, in its letter of Sept. 5, 1946, merely consummated the separation of these employees from the company's payroll." 4. Conclusions as to the legal issues involved in the discharges The first question raised by the facts and by the contentions set forth above is whether or not these striking employees were discharged or whether "they "N L. R. B v. Sands Mfg. Co , 306 U S. 332. 10 Quoted language from Respondent's brief. UNITED ELASTIC CORPORATION 799 took it upon themselves to walk out and thereby terminated their employment with the Company." On this question the facts speak for themselves. Both the Respondent and the Union considered the strikers as-employees of the company after June 19. The several letters addressed to the strikers, the demands that they "return" to work, before any negotiations proceeded, and the Union's position that it represented the employees of the company, clearly demonstrate bow the parties regarded the relationship between the strikers and the Respond- ent. The letter of September 5 consummated a separation which had not been envisaged, previous to July 15, 1946, for as that letter states : .. . you have not complied with its (the company's) requests of June 26 and July 12, 1946, to return to work. Therefore your name has been re- moved from the payroll as of July 15, 1946, and you are no longer considered I as an employee. [Emphasis added.] In connection with this question of the status of the strikers it is important to consider what sort of strike they were engaged upon. It is clear, and the undersigned so finds, that at its inception the strike was an economic strike, entered upon the strikers in defiance of the contract, and the terms thereof, and it is clear that the strikers would have been liable to dis- charge under the terms of Article VIII of the contract, at that time, for that reason. The question as to whether they continued in the status of economic strikers and liable to discharge is an important one. It has already been found that Richards' refusal to discuss any matter with Brown until the strikers were back at work, constituted a refusal to bargain and a violation of the Act. Thus it is clear that through its own acts, the Respondent converted the strike into an unfair labor practice strike. For it is possible that if Brown had received such an answer from Richards as would have enabled the two parties to negotiate their differences, the strike might well have been ended within a reasonable period of time, instead of continuing as in the instant case for several months. Thus the Respondent by its unfair labor practices not only probably extended the'duration of the strike, but further gave to the strikers certain rights which they did not possess as economic strikers. The undersigned finds that under the circumstances herein, the strike was pro- longed and extended by the unfair labor practices of the Respondent enumer- ated and described in detail above. The contention of the Respondent that since the strike was not caused by any unfair labor practice, the company was justified in discharging the strikers, is without merit in the instant state of facts where a subsequent series of unfair labor practices occurred before the discharges took place. The Sands case " is not applicable. The Respondent there did not commit any unfair labor practices prior to the discharge of the strikers, and the Supreme Court stressed that fact. In that case the employees struck after they had repudiated the contract, and the Court, in effect held that discharge of em- ployees engaged in such a strike in violation of the contract was permissible. But the Respondent here did not discharge the strikers until after it had refused to bargain with the Union, had unilaterally offered the strikers an 8 cent an hour increase to desert the strike and return to work, and after it had, through its officials and agents conducted a campaign of personal solicitation of the strikers to return to work Such conduct, all found to have been in violation of Section 8 (5) of the Act, clearly demonstrated to the strikers that the Respondent would 21 See footnote 9, supra. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not deal with them through their duly chosen and certified bargaining agency, but would deal only with them as individuals. The Respondent contends that the Union had "bargained away the right to protest a discharge for engaging in a strike or stoppage " in the contract which it had entered into with the Respondent . This contention is without merit insofar as it applies to the facts herein. The contract was terminated by the Respondent long before the discharges occurred . The Respondent cannot release itself from the obligations set forth in the contract and ask that the Union be held thereafter to the terms . and conditions of the terminated contract. The Respondent did not discharge the strikers because they had violated the no-strike clause of the contract . In its letter of September 5, the Respondent states clearly and unequivocally , that since the strikers had not complied with the letters of June 26 and July 12, 1946, their names being removed from the pay roll for that reason . The June 26th letter was an invitation to the strikers to return to work "without loss of status." The July 12 letter stated that "there will be no discrimination against you either because you are a member or are not a member of the Union . . . . You are losing wages unnecessarily and without jurisdiction The sensible thing,for you to do is to return to work." These letters in effect amounted to an offer by the Respondent to take its striking employees back without loss -of pay or any other "discrimination," if they de-1 serted the unfair labor practice strike. In Matter of Carey Salt Company, 70 N. L. R. B . 1099, the Board in a some- what similar case used the following language : . . we find upon the entire record herein that he was discharged because of his ... concerted activities , . . . and not because of his participation in the illegal strike. It is noteworthy in this respect that the Respondent ; itself, did not consider this conduct [ the participation in the illegal strike ] unpardonable, for it had no hesitation in continuing the em - ployment of the more than 100 other striking employees . Moreover, the respondent, having agreed to reinstate Shetley and having in fact restored him to his employee status after settlement of the strike and resumption of operations, we believe that it could not, on these facts, later assert as a reason for discharge the wrongful aspect of his conduct while participating in concerted activities with'his fellow employees. In the instant case those employees who returned to work in response to the, letters of June 26 and July 12, were reinstated with full seniority and rights. There is no contention that those who remained on strike would not have received the same treatment if they had returned to work in response to the same letter. The Respondent could not, under these circumstances, reserve to itself the continuing right to discharge the striking employees at any time in the future for the breach of the contract . Once it had condoned their actions in allegedly breaching the contract, and had offered the strikers unconditional reinstatement the Respondent could not , as to those who did not accept the offer, discharge them at a later date because they did not return. The condonation , once offered, constituted a clear waiver of the Respondent's right to discharge the striking employees in the future for the same breach of contract . It is clear that here the striking employees were discharged because they "participated in concerted activities with their fellow employees " and refused to desert the strike and not because they breached the contract. The right to engage in such activities is guaranteed employees in Section 7 of the Act. UNITED ELASTIC CORPORATION 801 It has been found that the strike though economic in its inception was ex- tended and prolonged by the unfair labor practices of the Respondent. It is further found that the Respondent discharged such of the strikers as had not returned to work by September 5, 1946, and refused to reinstate them on Septem- her 12 or 13, 1946, or thereafter, in violation of Section 8 (3) of the Act 12 5. The contentions .of the Board with respect to the merits of the individual discharges The names listed on "Appendix A" of the complaint can be broken down into several major classifications. The first classification contains the names of certain individuals who were terminated by the Respondent prior to the strike. The Board's attorney amended the complaint to strike such names from the complaint. A second category of the employees contains the names of those striking em- ployees who had not personally applied for reemployment at any time. It is the contention of the Board that these strikers, some 24 in number, did not have to make individual application for reemployment because they had been discrimi- natorily discharged by the letter of September 5. The Board's attorney contended further that Brown's letter of September 10, 1946," addressed to Conant con- stituted a blanket application for their reinstatement. - As to a third category of these discharged strikers, the Board contends that four of them, alleged by the Respondent to have been offered employment by it, but who thereafter refused to accept it, either were not offered employment or were offered jobs other than those held by them prior to the strike. The fourth category of names among these listed in the complaint is made up of those strikers, according to the Board, who applied for reinstatement, but -were refused. Four names were added to the complaint by amendment, and the Board contends that these individuals fall into this category. •6. The contentions of the Respondent with respect to the individuals discharged Since there is no quarrel between the parties as to the first category whose names were stricken from the complaint by amendment, the Respondent raised no question concerning them. As to those employees who had not personally applied for reemployment, it is the Respondent's contention that it was their duty to do so and that Brown's ii A number of the strikers were hired as new employees on the dates appearing after their names as set forth below : Sidney Brooks,, Sept .25, 1946 ; Rita A Cayer, Sept 18, 1946 ; Henrietta Cayer, Sept. 18, 1946 ; Hilda Champagne; Dec 12, 1946 ; Lillian Charland, Sept 17, 1946 ; Claire Demers, Sept. 3, 1946; Claire Dumais, Sept 26, 1946 ; William J. Dunlay, Sept. 10, 1946; Fobiola England, Dec. 3, 1946; Joseph Fitzboy, Sept. 19, 1946 ; Thomas R Frizzell, Sept. 24, 1946: Mary Goggen, Sept 5, 1946 ; Rita V Kane, Sept. 23, 1946 ; Claire L. Lemay, Sept. 23, 1946 ; Eva Loranger, Sept. 16, 1946 ; Arthur Massey, 'Sept. 23, 1946; Alexander Michaud, Sept. 18, 1946; Arthur Norman- din, Sept 30, 1946; Stella Nowal, Sept. 23, 1946; Irene Ouellette, Sept. 19, 1946; Pauline Pelletier, Sept 23, 1946; George J. Rondeau, Sept 3, 1946; Anna Tessier, Sept. 19, 1946; Alice Trottier, Nov. 16,.1946; John Lappin, Sept. 19, 1946; James J. McPhillips, Sept. 16, 1946. 33 The text of this letter follows This is to inform you that the United Elastic Workers have voted, at a meeting held at the Lowell Joint Board, T. W. U. A., C. I. 0,, headquarters, Monday, Sep- tember 9, 1946, to return to work. 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD letter of September 10 was not such a blanket offer of reinstatement as would remove that obligation. - Of those employees who were offered employment but refused it, the Respondent contends that the testimony of assistant superintendent , Andrew Jenkins, indi- cates that they were offered jobs which they refused. As to the fourth category the Respondent contends that it "had a right to sever them from the payroll because of their participation in the illegal strike, and the company has not been guilty of any discrimination in not rehiring them." The Respondent then argues that "since the company properly discharged them, the company' ,has exercised , 'as - to them , its powe' r of-selection . just as 'it would with any new applicant for employment." Two minor categories of discharged , strikers who were not rehired are dis- 'cussed by the Respondent in its brief . The first of these consists of three individ- uals as to whom the Respondent contends , that their jobs were eliminated due to the exigencies of the employer's business . As to the second of these minor cate- gories there seems to be no dispute. Andrew Teague worked all day on June 19, the day of the dispute, and 2 or 3 hours on the following day. He then left because of an industrial accident and was granted a leave of absence from which he returned to work on September 23. 7. Conclusions as to the merit of the individual discharges The following named individuals were terminated by the Respondent prior to the strike and stoppage : Elizabeth Ashmore Adam'Lacerte Theresa Beauregard Angeline Lajoie James A. Barrie Robert P. Lanouette Mary A. Bergeron Annette Le Bouef Mederic Boissoneault 'Aline C. Le Clair John E. Carr Frances W. Magee T. A. Gornock Bernice P Ramalho M. Duggan Marjorie Ranger James L. Fortner , Jr. Leo J. Reardon Loretta Gagnon Lillian Richard Leo J. Gregoire Doris Small George Hesley Craig Williams The Board's attorney moved to amend the complaint by striking the above- named individuals from it. The motion was granted. As to the second category , those who did not personally apply for reinstatement, the following-named individuals are so listed : Anita Bechard Antoinette Bernier Mesrob Boyajian Raymond P . Brophy Theresa Chandonnet Joseph A. Cote Jeanette D'Amour Edward Dufresne Helen Fortin' - Leo J. Fournier Adele Gendron John F. Harriman Rosette Hervieux Alice Jurkiewicz Edward P. Killeen Kazmira Klatka Matt' Myskowski Doris Plamondon Gertrude Renaud Louise Robillard Mathilda Rock' Arthur A. Roy Rita Suprenant Hannah Watson UNITED ELASTIC CORPORATION 803 The undersigned has found that the discharge of the strikers was discrim- inatory in the first instance. That being the case, it is found that there was no duty upon the above-named individuals to individually apply for reinstatement. Such application for reemployment would have been a useless gesture in any event since the Respondent did not reinstate any of the employees who did apply, to the same positions they had formerly held, and with all the rights and privileges they had formerly enjoyed. Those who were rehired were classified as new employees without seniority and without any more rights than, any other new employee. Such placement would obviously not have given the employees the same status-they had formerly held., ^ The Boards contention that the,.letter- of September 10 from Brown to Conant'is a blanket application for reemployment has merit, and it is found that the letter advised the Respondent of the avail- ability of the striking employees for reemployment. Since the Respondent does not contend that it would have reinstated these employees with full seniority and such other rights as they might possess, it constituted a'blanket application for employment by the strikers. The fact that the Respondent did not take advantage of this offer does not give it the right to demand another (and equally useless) form of application from the individual strikers. As to 10 strikers named in the complaint, Jenkins testified that they were offered employment as new employees after the strike, but refused it. As to 5 of these, the Board moved to amend its complaint by striking their names from it. These were : David W. Cunningham Beatrice, Laroque Alfred J 'Deneault, Louis J. Roy Aurora Hogue The motion was granted. As to Gemma Arguin, Annette Despres, Harry Brunelle, Ernest Lagasse, and Raymond Savard, Jenkins testified substantially that their jobs had been offered to them sometime after September 10, 1946," and that they had either refused employment, or ignored a letter sent to them by the Respondent asking that they report for, work. Arguin did not testify. Jenkins testimony, as to her stands uncontradicted. Nevertheless, since it is clear that she was offered only conditional reinstate- ment as a new employee, the offer was not valid. Harry Brunelle testified that Jenkins did not offer him his old job as shipper because, Jenkins said, "There is a fellow already on the job." On a second occasion, some 2 weeks later, Brunelle testified that he saw Jenkins again, but was not offered a job. At that time Brunelle mentioned, the-fact that,he-was`-figuring ,on going into GE" when that company opened its- plant in -2 or 3 weeks. Cross examination of the witness revealed the fact that Brunelle never went to work for GE. Jenkins' testimony is not specifically to the contrary. He testified that : A. Well, I started to talk with him as soon as he came over to me. He told me he wasn't interested in working for us as he was expecting work at the GE. e s s s s .s *' Q. At that time, did he ask for work? A. No. In other words, he told me he didn't want to signI any applica- tion. I told him I wasn't asking anybody to sign applications I just wanted "In all these cases the Respondent admits .that the striking employees when offered reemployment, were offered these jobs as new employees, without seniority or other rights. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to make note of the fact he was in applying for work. He told me he wasn't interested to apply for work ; he had this possibility of work at General Electric, the new plant that was striking. At a later point in the hearing Jenkins testified : A. I believe I told Brunelle if the occasion came where I could use him I would contact him. Q. And did you at any time`_contact hima-fthrsthM,? A. No I did not. Q. Why didn't you contact him? A. There wasn't any reason to contact him. I didn't have any work for - 'him. It is clear from Jenkins' testimony and it is so found that he did not offer Brunelle a job at any time. The most that, can be said for the conversation between the two men is that Brunelle said that he might find employment with General Electric. Such a statement cannot be interpreted as a refusal to accept employment. It is found that the Respondent did not offer Harry Brunelle. reinstatement to his job." Annette Despres testified that she received two letters from the Respondent offering her employment. She further testified that she refused these offers because they were for a different type 6f-work and-on a different shift than she had formerly had, and because her earnings would have been less. Jenkins' testimony did not touch on the type of work, shift, or earnings of the job he offered to her. Under these circumstances it is clear that there was no duty on Despres to accept a job with less pay and with other undesirable features as well as without seniority and as a new employee. It is so found. Ernest Lagasse testified credibly that he reapplied for employment with, the Respondent on September 14, 1946. He told Jenkins that he was working at another "little job to keep me going" since he did not know whether the strikers would be called back,or not. He did tell Jenkins that "I always like my job and I always like to work in the plant," and that he would like to have his job. He also told Jenkins "that as long as I am out and I have been here 16 years, as long as, I am out now on a new job, this thing is settled, it looks like I will have to start another 16 over there." Two weeks later Lagasse telephoned Jenkins and made another appointment to see him. At this meeting Lagasse told Jenkins '8 that he had another job, "but . . . that if he wanted to hire me this would be the first place for me to come for a job, because I always liked my job." Jenkins said that "We will, keep,in contact" but according to Lagasse he has not been called back even though he has called Jenkins several times since then. Jenkins testified''` to the first occasion of his meeting with Lagasse and that Lagasse at that time said "that he wasn't interested in going back." His testi- mony follows : ` A. After I had written down Lagasse's name and date, and phis former classification, he then remarked to me that he wasn't interested in work. I immediately asked him, why did he have me make out an application if he hadn't intended or if he wasn't interested in getting work. And he told 11 See footnote 14, supra. .. . I 1e Lagasse so testified. His testimony is credited. „ =The undersigned credits Lagasse ' and does not credit Jenkins.-, UNITED ELASTIC CORPORATION 805 me then that he had worked 16 years for this company ; he had another job, and he guessed he'd start 16 years for them. Q. -Didn't ... Mr . Lagasse . . . ask you for [his] old job back . . . ? A. Lagasse told me just as I have said. Jenkins did not testify to any other conversations held with Lagasse, and it is clear from the above that Jenkins did not offer Lagasse a job at this time, or at any other time, as far as the record shows. It is clear that even if Lagasse had been offered a job it would have had attached to it the illegal condition requiring him to return to work as a new employee. Under these circumstances, the contention of the Respondent that Lagasse refused to accept a proffered job, is without merit , and it is found that Lagasse was never offered reinstate- ment to his old job. Raymond Joseph Savard testified that he went to the office of the Respondent on October 15, 1946, and that he spoke to Jenkins. He told Jenkins that his father had suffered from a paralytic stroke and that he had been taking care of him ; that he had just obtained the services of a woman who would relieve him of the necessity of staying home with his father and that he was now able to go back to work. Jenkins , according to Savard told him that "at the present time he didn't have no employment for me, that anytime that he would have employ- ment he would call me up." Jenkins' testimony with reference to Savard , was that 'Savard came in "pur- posely" to tell him that he was sorry that he could not accept work . However Jenkins was not sure of the date when -Savard came in and he did not directly deny,Savard's version of the incident. He also testified that he "didn 't believe that" he "could have started him the day he came in." It is found that Jenkins did not offer Savard a job at any time after the termination of the strike, and that Savard, on the contrary , offered his services to the Respondent on or about October 15, and that these services were refused. Jenkins testified that the jobs of Edward J Matte, Raphael Richotte, and Thomas Tracy , all named in the complaint as allegedly unlawfully discharged employees, had been eliminated . His testimony with respect to Richotte follows: A. His [Richotte ] job was loomfixer's helper. His duties consisted of cleaning looms. Q. Was that job available on September 13th or 14th 1946? A. That job was not available , sir. That job was eliminated. Q. What had happened in the department , if anything, that resulted in the elimination of that job? A. We-had put in°a new,practice ' whl'ch done away with, that man doing that job, which was very unsatisfactory ; always had been. The new system is that the weavers take care of their own looms and you pay down time on it. At a later point in the hearing, Jenkins testified that a certain Raymond Blanchette was hired in October 1946, as a weaver but was placed on loom- fixing. With respect to Blanchette's work , Jenkins testified that "he appeared to have quite a little natural ability." Although the testimony is not clear, Jenkins testified that : I believe he did have some experience ; so he told me. And apparently he must have had, the way he took hold while he's been helping on some of this work. The undersigned finds that Blanchette was not hired as a loomfixer, but has been used to help on some of this work . Since he was hired ins October 1946, '- 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after Richotte had made application ' for employment, and since he is apparently doing the same type of work that Richotte was doing , it is found that Richotte's job was not eliminated , and that the latter is entitled to reinstatement. As to Edward J. Matte, Jenkins testified : A. Before the strike, prior to June 19th, Eddie Matte was maintenance man "A" in our maintenance department. Q. What, if •anything,• was the situation ' on the 13th or 14th of September, 1946? Was that job still in existence in the plant? A. That job was eliminated. On cross examination , Jenkins testified as follows : Q. During the course of the strike you hired a new maintenance man to work under Mr. Drapeaux, didn't you , named Walter Johnson? A. I did. Q. Did he do the same type of work Matte used to do? A. He doesn't do exactly the same type . He works in the maintenance room on the various work that comes up in that department. He might at times do some of the work Matte had done previously. * * * * * * * I'think, .as I recollect, Ernest Matte had ,the-classification .,as of this new man, Johnson. Q. Did you offer Mr. Matte any equivalent or similar job? A. No, I did not. On the basis of the above testimony it is clear that Johnson was hired during the strike to do work similar to that done by Matte. It is found that Matte's job was not eliminated and he is therefore entitled to reinstatement. According to Jenkins , Thomas Tracy's job was also eliminated. His testi- mony follows : A. . . . there was a very large change made in our washers , which are part of the humidity and heat control units, which enabled us , instead of having a man in there which was this man 's job, to eliminate the biggest part of that work. In other words, the job that was done .probably a couple of times a week is now probably done a couple of times a month and with very much less work attached to it. Tracy testified that his job consisted of "picking up waste and stuff and sometimes goods that come in the receiving room, delivering them to the various departments, and cleaning units on the air conditioning ; general cleaning of different types." He testified that he spent approximately forty percent of his time in cleaning the air conditioning units. He also testified that he had been informed by one of the supervisory staff, Joe Alphino , that he had been replaced by someone else. Joe Alphino did not testify and the Respondent did not rebut Tracy's testi- mony with respect as to what Alphino had told him. The undersigned finds on the entire record, and from his observation of the witnesses , that Tracy was not :rehired, and that although there was work for which he was qualified and for which he would normally have been used, he was not given the opportunity to work. It is therefore found that not only was Tracy's discharge discriminatory, but also that the refusal to reinstate him was likewise discriminatory. UNITED ELASTIC CORPORATION ' 807 IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent 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 and have led to labor disputes burden- ing and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has violated Section 8 (1), (3), and (5) - of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit. It will therefore be recommended by the undersigned that,the Respondent upon request, bargain collectively with the Union. It has also been found that the Respondent discharged and thereafter failed to reinstate certain employees hereinafter named in Appendix A hereof, for the -reason that they assisted a labor organization and engaged in concerted activities for the purpose of collective bargaining or other mutual aid or protection. It will therefore be recommended by the undersigned that the Respondent immedi- ately offer to these -named employees full reinstatement to their former or sub- stantially equivalent positions 18 without prejudice to their seniority or other rights and privileges, discharging if necessary any new employees hired since June 19, 1946, the date when the strike became an unfair labor practice strike, and make them whole for any loss of pay they may have suffered by reason of their discriminatory discharges by payment to each of them of sums of money equal to the amount which each of them would normally have earned as wages from the date of their discharge"' to the date of the Respondent's offer of reinstatement, -less their net earnings during such period.20 On June 19, the day of the stoppage, Richards refused to,discuss any matters with the Union until after the strikers had returned to work. Thereafter, by means of letters, newspaper advertisements, personal solicitation, and by the .granting-of an 8 cent an hour wage increase, without consulting or advising the Union, the Respondent sought to sway the union members from -their loyalty to the Union, and their joint activity in the strike. Thereafter it discharged those ,.cf its employees who had not abandoned the strike and did not reinstate them except in a few instances as new employees. Such conduct,,which,is specifically violative of Section 8 (1), (3), and (5) of the Act, reflects a determination gen- ,erally to interfere with, restrain, and coerce its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to bargain ,collectively through representatives of their own choosing, and to engage in con- 19 In accordance with the Board's consistent interpretation of the term, the expression "former or substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position" See Matter of The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R. B. 827. 11 This date is found to be September 11, 1946, the day on which the Respondent received the Union's offer of an unconditional return to work on the part of the strikers. 20 Matter of Crossett Lumber Co , 8 N. L. R. B. 440, 497-498. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certed activities for the purpose of collective bargaining or other mutual aid or protection, and presents a ready and effective means of destroying self-organiza- tion among its employees. Because of the Respondent's unlawful conduct and since there appears to be an underlying attitude of opposition on the part of the Respondent to the purposes of the Act to protect the rights of employees gen- erally," the undersigned is convinced that if the Respondent is not restrained from committing such conduct, the danger of its commission in the future is to, be anticipated from the Respondent's conduct in the past, and the policies of the- Act will be defeated. In order, therefore, to make effective the interdependent guarantees of Section 7 of the Act, to prevent a recurrence of unfair labor prac- tices, and thereby minimize industrial strife which burdens and obstructs com- merce, and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. On the basis of the foregoing findings of fact and upon the entire record of the case, the undersigned makes the following: CONCLUSIONS OF LAW 1. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's production and maintenance employees employed at the Lowell plant, excluding office and clerical employees, watchmen, executives, foremen and assistant foremen, and all other supervisory employees with au- ` thority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, was on September 12, 1945, and at all times thereafter, the exclu- sive representative of all the employees in the aforesaid unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the,Act. 4. By refusing on June 19, 1946, and at all times thereafter to bargain collec- tively with the Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, as the exclusive representative of all, its employees in the appropriate unit, the Respondent has engaged in unfair labor practices within the meaning of Section 8 (5) of the Act. 5. By discriminating in regard. to the hire and-tenure of employment of the employees whose names are set forth in Appendix A of this Report, and thereby discouraging membership in a labor organization, the Respondent has engaged 'in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 6. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 21 See May Department Stores Company, etc., v. N. L. It. B , 326 U. S. 376. UNITED ELASTIC 'CORPORATION 809 RECOMMENDATIONS Upon• the basis of the foregoing findings, of fact,and conclusions of law, the undersigned recommends that the Respondent, United Elastic Corporation, Lowell, Massachusetts , its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in Textile Workers Union of America, affiliated with the Congress of Industrial Organizations, or any other labor organization of its employees by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employ- ment, or any term or condition of employment ; (b) Refusing to bargain collectively with Textile Workers Union of America, affiliated with the C. I. O. as exclusive representative of all the Respondent's production and maintenance employees employed at the Lowell plant, excluding office and clerical employees, watchmen, executives, foremen and assistant fore- men, and all other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action ; (c) In any other manner interfering with, restraining, and coercing its em- ployees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist Textile Workers Union of America, affiliated with the C. I. 0., or any other labor organization, to bargain collectively through repre- sentatives of their own choosing and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with Textile Workers Union of America, affiliated with the C. I O. as the exclusive representative of all of the Respond- ent's production and maintenance employees employed at the Lowell plant, ex- cluding office and clerical employees, watchmen, executives, foremen and assistant 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, and if an understanding is reached, embody such understanding in a signed agreement ; (b) Offer to the employees whose names are set forth in "Appendix A" of this Report, immediate and full reinstatement to their former or substantially equiva- lent positions,` without prejudice to their seniority and, other rights and privileges ; 23 (c) Make whole the employees whose names are set forth in "Appendix A" of this Report, for any loss of pay they may have suffered by reason of the Respond- ent's discrimination against them, by payment to each of them a sum of money equal to that which he would have earned as wages from the date he was dis- criminatorily deprived of his employment, to the date of the offer of reinstate- ment, less his net earnings 2A during said period ; 23 By "former" positions is meant the positions held during that period on and imme- diately prior to the dates of discharge 13 As to certain named strikers (see footnote 12, supra) who have been hired by the Respondent and are presumably now employed by it with the status of new employees, the order of reinstatement will apply to them in so far as it grants to them all rights, privileges and seniority of which they have been deprived by having been rehired as new employees. 21 See footnote 20, supra. 810 DECISIONS OF NATIONAL, LABOR-RELATIONS BOARD (d) Post at its plant at Lowell, Massachusetts; copies of the notice attached hereto, marked "Appendix B." Copies of said notice, to be furnished by the Regional Director of the First Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent 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 cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (e) Notify the Regional Director for the First Region in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Direc- tor 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, 1046, 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, Rochambeau Building, Washington 25, D. C., 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 proceeding (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, should any party desire permission to argue orally before the Board, request therefore 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. VICTOR HIESHFIET), Trial Dxaminer. - Dated May 19, 1947. Dorothy Allen Gemma Arquin Yvette Arsenault Antoinette Bernier Mrs. Mary Bober Sidney Brooks Harry Brunelle Henrietta Gayer Theresa Chandonnet Joseph D. Chartrant Jose Vieira Da Luz Claire Demers APPENDIX A Simonne Desrochers Claire Dumais William J. Dunlay Joseph Fitzboy Leo G. Fournier Rose Mary Gagnon Mary T. Goggen Leo J. Hebert Alice Jurkiewicz Edward P. Killeen Ernest Lagasse Eduilda C. Laplume UNITED ELASTIC CORPORATION Charles LeBlanc Rita I. Lemioux Albert Lupien Mrs. Antoinette Marchand Edward J. Matte Alexander Michaud Antoinette Morin Arthur Normandin Viola Nowak Lillian Ouellette Pauline Pelletier Doris Plamondon Gertrude Renaud Arthur Richard Louise Robillard Georgette Rondeau Rita Rondeau Arthur A. Roy Raymond J. Savard Mildred Swiderski Jeannette Thibeault Alice Trottier Hanna Watson John'Lappin Jeanne Thibault Nellie Ambrose Anita Bechard Lorinna Blanchette Mesrob Boyajian Raymond P. Brophy Rita A. Cayer Mrs. Hilda Champagne Lillian Charland Joseph A. Cote Jeannette D'Amour Annette Despress Edward Dufresne Adelard Dumas Fabiola England Helen Fortier Thomas Frizzell Adele Gendron John F. Harriman Rosette Hervieux Rita V. Kane Kazmira Klatka Dolores Langlois Heloise C. Laplume Claire L. Lemay Eva Loranger Germaine Lussier Arthur Massey Ernest J. Matte Isabella Morgan Mary Myskowski Stella Nowak Irene Ouellette Narcisse Polland, Jr. Henry Pestana Luciana M. Plouffe Marcelle Renaud Raphael Richette George J. Rondeau Napoleon J. Rondeau Mathilda Rock Charles Russell Rita Suprenant Anna Tessier Thomas Tracy Florence Viebicki Arthur Donnolly James J. McPhillips APPENDIX B NOTICE To ALL EMPLOYEES (It 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, restrain, or coerce our em- ployees in the exercise of their right to self-organization, to form labor organizations, to join or assist TEXTILE WORKERS UNION OF AMERICA, affiliated with Congress of Industrial Organizations or any other labor organization', to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. WE WILL OFFER to the employees named in Appendix A attached hereto immediate and full reinstatement to their former or substantially equivalent 812 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD positions without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. 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 , and if an understanding is reached , embody such understanding in a signed agreement . The bargaining unit is: All of the Respondent's production and maintenance employees employed at the Lowell plant, excluding office and clerical employees , watchmen, executives , foremen and assistant 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 a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. The employees to be reinstated and made whole are : Named in Appendix A attached hereto. All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. UNITED ELASTIC CORPORATION, Employer. Dated-------------------- By---------------------------------- (Representative) (Title) NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.