Deena Artware, Inc.

In the Matter of DEENA ARTWARE, INCORPORATED and UNITED BRICK AND CLAY WORKERS OF AMERICA, AFFILIATED WITH AMERICAN FEDERATION OF LABOR Case No. 9-CA-44.-Decided October 25,19419 DECISION AND ORDER On May 11, 1949, Trial Examiner Herman Marx issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondent had engaged and was engaging in certain unfair labor prac- tices in violation of Section 8 (a) (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 copy of the Intermediate Report attached hereto. Thereafter, the Respondent and the Union filed exceptions to the Intermediate Report, and supporting briefs. The Respondent's request for oral argument is hereby denied, as. the record and briefs, in our opinion, adequately set forth the positions of the parties. The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermedi- ate Report, the exceptions, the briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications : 2 1. We agree with the Trial Examiner's finding that the Respondent refused to bargain with the Union in good faith before May 26, 1948, the date of the strike. Our conclusion that throughout the period of conferences the Respondent sought to frustrate the Union's efforts to 1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this proceeding to a three-member panel [ Chairman Herzog and Members Reynolds and Gray]. 2 The Trial Examiner erroneously reported that the August 11, 1948, letter requesting reinstatement was signed by four employees who had not signed the comparable June 1 letter. The record shows, and we find, that of the employees who signed the August 11 letter, only one had not signed the earlier letter. The Intermediate Report contains other inaccuracies , which we believe are suf cientlg minor as not to require further comment here. 86 N. L. R. B., No. 124. 732 Q., DEENA ARTWARE, INCORPORATED 733 achieve a meeting of the minds on any important issue, is amply supported by the following circumstances occurring after April 8, 1948, when the first meeting took place : (1) At the second bargaining conference the Respondent adamantly refused to permit Union Repre- sentative Grimes to participate in the negotiations and ordered him off its premises. It never receded from this position, and as a conse- quence Grimes, the most experienced of the Union's agents, took no part in the remaining conferences. (2) After the second meeting, President Weiner called the 10 employee members of the Union's bargaining committee into his office, and told them that they had "chosen sides" and that "if you people are out of work and starving it won't be my fault." He then reminded then of a prediction which he had made to all the plant employees, before the election, that if they selected the Union, they "would have lost some of their privileges and freedoms." (3) Throughout all the bargaining conferences, the Respondent engendered a continuous state of uncertainty respecting the authority of the 3 management representatives to make definite commitments on important issues. At times Plant Manager Meri- wether and his 2 assistants assured the Union of their authority, and at others they disclaimed it, saying that all matters directly or in- directly relating to cost must be approved by Weiner and the Re- spondent's Chicago office. When, before the last abortive meeting, the Union appealed to Weiner personally to come to Paducah and give the Union an opportunity to engage in effective negotiations, Weiner's only reply was to refer the Union to the Respondent's local lawyer, who had not participated in any of the negotiations. (4) In response to the Union's definite wage proposal, Meriwether orally offered a wage schedule which was so incomplete and complex that even the other members of the management committee could not agree at the hearing as to its broad aspects. Admittedly realizing that the em- ployee committee understood the counteroffer to be of no substantive value, if not a lower scale than previously in force, the company representatives made no effort to clarify it in writing, but instead told the Union that even that offer might later be withdrawn by the Chicago office. (5) Fin ally, the -Respondent rejected the Union's pro- posal to continue the established vacation practice-1 week for 6 months' service and 2 weeks for 1 year or longer-and proposed in- stead to reduce vacations to 1 week for 12 months' service and 2 weeks for 5 years or longer. This position was a clear reprisal for the employees' adherence to the Union, implementing President Weiner's threat at the time of the election that the employees would lose some of their "privileges" if they chose the Union. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing and the other matters set forth in the Intermediate Report upon which we also rely, and upon the entire record, we find, as did the Trial Examiner, that from April 8 to May 26, 1948, and at all times thereafter, the Respondent refused to deal with the Union with an open mind and in good faith, as it was legally obligated to do, and that it thereby violated Section 8 (a) (1) and (5) of the Act.3 2. As fully set forth in the Intermediate Report, on May 29, 1948, the Respondent discharged and refused to reinstate 66 of its employees because they had engaged in a strike. We agree with the Trial Examiner's conclusion that this conduct was discriminatory within the meaning of the Act, and we find that the Respondent thereby violated Section 8 (a) (1) and (3) thereof. The Respondent offered evidence relating to the conduct of a number of persons at or near the plant in the course of the strike and picketing, and it contends that because of such conduct the Board may not, or should not, order their reinstatement. We have considered the evi- dence as it relates to the activities of the 66 employees discriminatorily refused reinstatement, and believe, as did the Trial Examiner, that none of them engaged in such conduct as to deprive them of their right to reinstatement under the Act.4 We shall, therefore, order their reinstatement in accordance with the Trial Examiner's recom- mendation. The record also contains extended testimony relating to the activities of 9 former employees of the Respondent who participated in the picketing and other strike activities .5 However, as the complaint does not allege that these former employees were discriminatorily dis- charged, their reinstatement is not in issue in this proceeding. We do not believe, as the Respondent apparently argues, that the allegedly unlawful activities of this group of former employees is imputable to the 66 employees whom the Respondent refused to reinstate, simply because both groups were members of the same labor organization. As the record does not contain evidence sufficient to support a finding that the striking employees were in any way responsible for the activities of the former employees, evidence relating to their conduct is irrele- vant in this proceeding. Accordingly, we do not adopt the Trial Examiner's analysis and resolution of the conflicting testimony re- 8 See Matter of Tower Hosiery Mills, Inc., 81 N. L. R. B. 658 ; Matter of Kentucky Utilities Company, 76 N. L. it. B. 845; Matter of Athens Manufacturing Company, 69 N. L. R. B. 605, enforced 161 F. (2d) 8 (C. A. 5), and Matter of Great ,Southern Trucking Co., 34 N. L. it. B. 1068, enforced 127 F. (2d) 180 (C. A. 4). 4 Matter of Horn Mfg. Co., Inc., 83 N. L. R. B. 1177 ; see also Matter of D. A. Labora- tories, Inc., 80 N. L. R. B. 625. 6 These are Harry Bennett, Gertrude Dowdy, Florence Fowler, William R. Brooks, Reecie Spiceland , Venice Watson, Thomas A. Richard, Lonnie DePriest, and Charles Pawley, all of whom had been discharged on April 22, 1948. DEENA ARTWARE, INCORPORATED 735 specting the activities of former employees, or his extensive discussion of the conclusions to be drawn therefrom. 3. As a further argument against reinstatement of the strikers, the Respondent contends that in the course of the strike, the strikers and the Union engaged in secondary picketing in violation of Section 8 (b) (4) of the Act and thereby forfeited all reinstatement rights. This contention is based on the assertion that the Union pickets caused a work stoppage by the employees of Vandevalde and Augustus, an inde- pendent contracting firm engaged in constructing a warehouse on the Respondent's premises. Like the Trial Examiner, we find no merit in this contention. The Respondent's single plant site, occupying the major portion of a city block approximately 200 feet square, consists of its manu- facturing plant, its old warehouse, and the construction site of its new warehouse which was to be joined physically to the old one. In the ordinary course of their work, many of the employees enter the plant and warehouse through entrances facing the various streets bordering the premises. During the first week of the strike, union pickets circled the entire premises occupied by the Respondent. As the picketing was confined to the Respondent's immediate premises, clearly it was all primary picketing. As we have recently stated : "When picketing is wholly at the premises of the Employer with whom the Union is engaged in a labor dispute, it call not be called `secondary' even though, as is virtually always the case, an object of the picketing is to dissuade all persons from entering such premises for business reasons." 6 Ac- cordingly, as the record contains no evidence of secondary picketing, we find no merit in this agument by the Respondent.' ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Deena Artware, Incorpo- rated, Paducah, Kentucky, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in United Brick and Clay Workers of America, A. F. L., or in any other labor organization of its em- ployees, by discharging or refusing to reinstate any of its employees, ° Matter of United Electrical, Radio and Machinery Workers of Amerioa , Local 818, 0. I. 0. and Ryan Construction Corporation, 85 N. L. R. B. 417. ' In view of our foregoing finding, we deem it unnecessary in this case to consider the effect, generally, of conduct violative of Section 8 (b) (4) upon the reinstatement rights of employees discriminatorily discharged or refused reinstatement. Accordingly, we do not adopt any of the Trial Examiner's extended discussion of the strikers' right to engage in secondary picketing in this case, or hie analysis of the meaning of Section 8 (b) (4). 736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or by discriminating in any other manner with regard to their hire or tenure of employment or any other term or condition of employ- ment ; (b) Refusing to bargaining collectively with United Brick and Clay Workers of America, A. F. L., as the exclusive bargaining representa- tive of all production and maintenance employees at the Respondent's Paducah, Kentucky, plant, excluding guards, professional employees, office and clerical employees, and all supervisors as defined in the Act; (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Brick and Clay Workers of America, A. F. L., 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, and to refrain from any and all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to all employees whose names appear on "Appendix A," attached hereto, immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority or other rights and privileges; (b) Make whole all employees whose names appear on "Appendix A," attached hereto, for any loss of pay they may have suffered by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he nor- mally would have earned as wages during the period from the date of his discharge to the date of the Respondent's offer of reinstatement, less his net earnings during such period ; (c) Upon request, bargain collectively with United Brick and Clay Workers of America, A. F. L., as the exclusive representative of all production and maintenance employees at the Respondent's Paducah, Kentucky, plant, excluding guards, professional employees, office and clerical employees, and all supervisors as defined in the Act, and if an understanding is reached, embody such understanding in a signed agreement; (d) Post at its plant in Paducah, Kentucky, a copy of the notice attached hereto, marked "Appendix A." 8 Copies of said notice, to 8 In the event this Order is enforced by a decree of a United States Court of Appeals, there shall be inserted in the notice before the words : "A DECISION AND ORDER," the words: "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." DEENA ARTWARE, INCORPORATED 737 be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by the Respondent, be posted by the Re- spondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, includ- ing all places where notices to employees are customarily posted. Rea- sonable 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 Ninth Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : IVE WILL NOT discourage membership in United Brick and Clay Workers of America, A. F. L., or any other labor organization of our employees, by discharging or refusing to reinstate any of our employees or by discriminating in any other manner in regard to their hire and tenure of employment or any other term or con- dition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist United Brick and Clay Workers of America, A. F. L., or any other labor organiza- tion, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any and all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as author- ized in Section 8 (a) (3) of the Act. WE wiLL bargain collectively upon request with the above- named Union as the exclusive representative of all employees in the unit described herein with respect to rates of pay, wages, hours, and other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed agree- ment. The bargaining unit is : All production and maintenance employees in our Paducah, Kentucky, plant, excluding guards, professional employees, 738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD office and clerical employees, and all supervisors as defined in the Act. WE WILL OFFER to the employees named below immediate and full reinstatement to their former or substantially equivalent posi- tions without prejudice to any seniority or any other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination. The employees are: Tilmon Barker Elizabeth Boyd Alice Brian Frank Burns Elsie Calhoun Thomas Carper Corris Carter Sadie Lee Carter James Coleman Warren Crane Ila Eveline Dick Edward Dykes Robbie Ellington Ruth Farley Pauline Few Lucile Frymire William Girten Cristine Green James R. Green Eugene Halstead George A. Hardeman Rossie Harris Kenneth Johnson James L. Joyner Opal Keeling Alice Kelly Clayton Klein Annette Leidicker Martha Julia Ligor Grace Mallory Marie Meeks Charles Mitchuson Harold Eugene Medley Trixie McDonald Guy Phelps Frances Rasche Gertrude Rutherford Thelma Ray Eddleman Reeves Leona Ringstaff (Stokes) Lucille Rudd Ray Rushing +'mnia Alice Seavers John L. Steger Frances G. Taylor Willard Thompson Loretta Tucker Vera Mae Tucker Margaret Holdman Beulah Wade Geneva Walker Zettie T. Walker Dorothy Branton Charles Thompson Sam Hines, Jr. Pauline Harris Gordon Harris Dorothy Ann Cherry Edna Grief Ava Nell Plumlee Kelly Joiner Marvin McCoy Cecil Parks Lee G. Berry Florine Hill Charles LeNeave All our employees are free to become or remain members of the above-named Union or any other labor organization. We will DEENA ARTWARE, INCORPORATED 739 not discriminate with regard to hire or tenure of employment or any term or condition of employment against any employees because of membership in or activity on behalf of any such labor organization. DEENA ARTWARE, INCORPORATED. Dated -------------------- By -------------------------------- (Representative ) ( Title) This notice must remain posted for sixty ( 60) consecutive days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER Messrs. Martin Sacks and Harold V. Carey, for the General Counsel. Messrs. James G. Wheeler and Thomas J. Marshall, Jr., of Paducah, Ky., for the Respondent. Mr. Joseph S. Freeland, of Paducah, Ky., for the Union. STATEMENT OF THE CASE On October 11, 1948, United Brick and Clay Workers of America 1 filed an amended charge with the Regional Director for the Ninth Region of the National Labor Relations Board' Thereafter, the General Counsel 8 of the Board issued a complaint dated October 29, 1948, alleging, in substance, that the Respondent, Deena Artware, Incorporated, had engaged, and was engaging, in unfair labor practices affecting commerce within the meaning of Sections 8 (a) (1), 8 (a) (3), 8 (a) (5), 2 (6) and 2 (7) of the National Labor Relations Act (49 Stat. 449-457, as amended by 61 Stat. 136-163), herein referred to as the Act. With respect to the alleged illegal conduct, the complaint avers, in essence, that, since March 17, 1948, the Union has been the exclusive representative of an appropriate bargaining unit at the Respondent's plant in Paducah, Kentucky ; that the firm has, since April 8, 1948, failed and refused to bargain with the Union in good faith ; that, since May 29, 1948, the Respondent has refused to meet with the Union for the purpose of collective bargaining, although requested by the Union to do so; that on or about May 26, 1948, 66 named employees 4 went on ' United Brick and Clay Workers of America will be referred to herein as the Union. 2 The National Labor Relations Board will be referred to herein as the Board. 8 The references herein to the General Counsel include the attorneys who appeared on his behalf in this proceeding. 4 The complaint names 64 persons as participants in the strike and the objects of the Respondent's alleged discriminatory conduct. On December 6, 1948, the Union tiled a "supplemental charge," the purpose of which was to add the names of two more employees, Harold Eugene Medley and Margaret Heldman, to the persons named in the amended charge (although Medley' s name does appear in the amended charge). At the hearing, Paragraph 8 of the complaint was, upon the General Counsel's motion, amended to add the names of Medley and Holdman to the other 64 listed therein. The following is a list of the employees named in the complaint, as amended : Tilmon Barker Thomas Carper Ila Eveline Dick Elizabeth Boyd Dorris Carter Edward Dykes Alice Brian Sadie Lee Carter Robbie Ellington Frank Burns James Coleman Ruth Farley Elsie Calhoun Warren Crane Pauline Few 740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike because of the Respondent's failure to bargain in good faith and the employees' inability to obtain a satisfactory contract ; that on May 29, 1948, the employees offered to terminate the strike, and on that date and thereafter made unconditional applications to return to work ; that the Company refused to rein- state them and terminated their employment because of their concerted activities and .to discourage their membership in the Union; that the Respondent has threatened not to add to its facilities in Paducah and to move its plant elsewhere "because of the Union" ; and that the Company, by its conduct described above,' has interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed to them by the Act. The Respondent filed an answer in which it denies, in substance, the commis- sion of any unfair labor practices. The answer admits that the employees con- certedly ceased work on July 26, 1948, and that they have not been reemployed, but denies that the reasons for such cessation were those alleged in the complaint, claiming, instead, that the employees "gave up their employment" because a conciliator representing the Federal Mediation and Concilation Service failed to keep a scheduled meeting with a representative of the Union.` The Respondent's answer does not dispute the status of the Union as the exclusive representative of the employees during the period from March 17 to May 26, 1948,° but asserts that since the latter date the Union has not "been the representative of any of its employees." The answer also charges that the striking employees and the Union violated the respective provisions of Sections S (B) (1) and (4) and 303 A (1) of the Act by (1) engaging in mass picketing, violence, and "other unlawful con- duct" to restrain and coerce employees of the Respondent; (2) inducing persons employed by a contractor in the erection of a building for the Respondent to engage in a strike with the "object" of "forcing and requiring" the Respondent to bargain; and (3) for the same "purpose," "forcing and requiring" the con- tractor's employees to cease their work. Lucile Frymire Harold Eugene Medley Beulah Wade William Girten Trixie McDonald Geneva Walker Christine Green Guy Phelps Zettie T. Walker James R. Green Frances Rasche Dorothy Branton Eugene Halstead Gertrude Rutherford Charles Thompson George A. Hardeman Thelma Ray Sam Hines, Jr. Rossie Harris Eddleman Reeves Pauline Harris Kenneth Johnson Leona Ringstaff Gordon Harris James L. Joyner. Lucille Rudd Dorothy Ann Cherry Opal Keeling Ray Rushing Edna Grief Alice Kelly Emnia Alice Seavers Ava Nell Plumlee Clayton Klein John L. Steger Kelley Joiner Annette Leidicker Frances G. Taylor Marvin McCoy Martha Julia Ligon Willard Thompson Cecil Parks Grace Mallory Loretta Tucker Lee G. Berry Marie Meeks Vera Mae Tucker Florine Hill Charles Mitchuson Margaret Holdman Charles LeNeave 5 The answer states that the Respondent has been advised that the conciliator changed the date of the. meeting , but that the Union's "representative failed to receive a notice of (the) change." 6 At the hearing, the Respondent moved for leave to file an amended answer. The motion was granted. Among other things, the amendments allege that the Respondent "received no official notification or certification of such representation by the Union" until August 11, 1948, at which time it received from the Regional Director a letter dated August 9, 1948, enclosing a "certification of representatives" dated April 16, 1948. The amended ansiver draws no legal conclusion from this circumstance, nor does the Respondent do so in its brief. DEENA ARTWARE, INCORPORATED 741. Pursuant to notice duly served upon the Respondent and the Union , a 15-day hearing was held at Paducah , Kentucky , during the period from December 14,. 1948 to January 12, 1949, before the undersigned , Herman Marx , designated as. Trial Examiner by the Chief Trial Examiner. At the hearing, the Respondent moved to dismiss Paragraph 6 (f) of the coin- plaint on the ground that it was not supported by the charge z The motion was. denied. The Respondent also moved that the "charge be stricken and the cow plaint dismissed" on the grounds that the "charges" do not contain "a clear and concise statement of the facts," in conformity with Section 203.12 of the Regula- tions, and fail to specify "the number and expiration date of the letter of compliance issued by the Secretary of Labor." The motion was denied. The Respondent then moved for an order requiring the General Counsel to make sub- division D of Paragraph 2 of the charge more specific .' The Examiner denied the motion, but informed the Respondent 's counsel that he would give him an oppor- tunity to present a motion for a bill of particulars concerning matters set out in the complaint . The Respondent declined to make such a motion. All parties were represented by counsel at the hearing , participated therein, and were afforded full opportunity to be heard , to examine and cross-examine witnesses , adduce evidence bearing on the issues , submit oral argument , and file briefs. The General Counsel and the Respondent submitted oral argument at the close of the hearing and have filed briefs which the Trial Examiner has considered. Upon the entire record and from his observations of the witnesses , the Trial Examiner makes the following : FINDINGS or FACT 1. THE BUSINESS OF THE RESPONDENT Deena Artware, Incorporated, is a Kentucky corporation engaged in the manu- facture and distribution of pottery lamp bases at its manufacturing plant in Paducah, Kentucky. During the course of the year 1948, the Respondent pur- chased raw materials at a valuation in excess of $50,000, of which more than 75 percent was received by it from sources located outside the State of Ken- tucky. During the same period, the Respondent's sales of manufactured prod- ucts exceeded the sum of $50,000, of which more than 90 percent represented shipments to points outside the State of Kentucky. The Trial Examiner finds 4 Prior to the hearing the Regional Director approved the withdrawal of Subdivisions. A, B and D of Paragraph 2 of the charge, and notified the Respondent' s counsel to that effect by a letter dated November 8, 1948. Subdivision D alleges the discriminatory discharge of nine employees who were members of the Union's negotiating committee. Paragraph 6 (f) of the complaint alleges that the Respondent refused to bargain con- cerning the reinstatement of the discharged individuals . The Respondent argued that the withdrawal of Subdivision D left Paragraph 6 (f) of the complaint without any support in the charge. The Examiner, in denying the motion, pointed out that the withdrawal of Subdivision D only withdrew the question of the discriminatory discharge of the nine employees, and that a refusal to bargain concerning the reinstatement of the nine employees is supported by the general language of the charge (see Par. 2, Subdivs. 1) and E). Moreover, the Respondent misconceives the function of a charge. It is merely the vehicle which sets the machinery of the Board in motion and need not particularize the conduct constituting the alleged unfair labor practice. Consumers Power Co. v. N. L. R. B., 113 F. (2d) 38 (C. A. 6) ; Matter of Biggs Antique Co., Inc., 23 L. R. R. M.. 1092; Matter of Morristown Knitting Mills, 23 L. R. R. M. 1139; N. L. R. B. v. Indiana and Michigan Electric Company, 318 U. S. 9. 1In addition to the fact that a motion to make a charge more specific is inappropriate, it should be observed that Subdivision D had been withdrawn before the hearing. 867351-50-vol. 86-48 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that during the said period the Respondent was engaged in commerce and that its operations affected commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization affiliated with the American Federation of Labor and admits employees of the Respondent to membership. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Background of undisputed facts 9 The Respondent owns and operates a factory in Paducah, Kentucky, where it is engaged in the manufacture of pottery lamp bases. On May 25, 1948, (the day preceding the strike alleged in the complaint) the plant employed 119 per- sons, including executive, professional, and clerical personnel. The president of the concern is named George H. Weiner. His office is lo- cated in Chicago, although he visits the Paducah plant in the course of the Com- pany's business. The manager of the plant is a Paducah resident named Corbin Meriwether. Mrs. Kathryn Hendren is in charge of the office at the plant and, subject to Meriwether's supervision, acts as personnel manager, interviewing employment applicants and supervising the preparation of the pay roll and other office work performed by an office clerk. She also acts for Meriwether in his absence. The office clerk is named Lee Nola Henson. In February 1948, at the request of two of Deena's employees, Edmund L. Grimes, a "general organizer" employed by the American Federation of Labor, became active in the organization of the concern's Paducah employees. Shortly thereafter, the Union petitioned the Board for certification as the employees' bargaining representative. The Respondent consented to an election to de- termine the question of representation. As the result of an election held on March 17, 1948, a majority of the employees in an appropriate unit 30 designated the Union as their representative," and the Union was thereafter certified by the Board.12 Shortly after the election, the Union assigned Earl Bellew, an international representative of the organization, to engage in bargaining negotiations with the Company. He attended a meeting of the Respondent's employees who were members of the Union, and at that meeting a negotiating committee of 10 em- 9 The recital of undisputed facts in this section does not mean that they alone are uncon- troverted. This section is primarily designed as a preliminary basis for the discussion of the evidence in the case. The omission of any discussion in this report of various parts of the evidence does not mean that it has not been considered. Such omission may be variously due, as the case may be, to the fact that the applicable material is either evi- dentiary minutiae or not controlling in the light of other facts. 1o The unit consisted of all production and maintenance employees at the plant, but excluded all guards and professional, supervisory , office and clerical employees. 11 The "Certificate of Representatives" was actually issued on August 9, 1948. As the result of an error, the Regional Director on April 16, 1948, had issued a document entitled "Certificate of Results of Union Authorization Election." On August 9, 1948, the Regional Director wrote a letter to the Respondent informing it of the error and enclosing a "Cer- tificate of Representatives." The Respondent's amended answer adverts to the fact that it did not receive the representation certificate until August 11, but suggests no legal consequences of the error. The mistake was plainly clerical in nature and without legal significance. The Examiner finds that the Respondent became aware on or about March 17, 1948, of the election results and the Union's right to represent the employees in the unit. Moreover, the record discloses no prejudice to the Respondent resulting from the clerical error. 12 See Case No. 9-RC-76. DEENA ARTWARE, INCORPORATED 743 ployees, one from each department of the plant, was elected by the membership to negotiate a contract with the Company. Bellew thereupon arranged with Mrs. Hendren for a meeting with representatives of the Company to be held at the plant office April 8, 1948. The Respondent designated Meriwether, Mrs. Hendren, and Mrs. Henson as a committee to meet with the Union's representa- tives. Meetings were held at the Company's office on April 8, 9, 16, 21, 29, 30 and May 6 and 7. Bellew attended each of the meetings as a representative of the Union. Grimes attended the meetings of April 8 and 9. At the commencement of the second meeting (April 9) Meriwether, reading from a prepared memorandum, stated that the Respondent declined to bargain with Grimes because he was not "a member or officer" of the Union 13 and di- rected him to leave the premises. Grimes complied with the request that he leave. Bellew and the Union's negotiating committee left with him, and no other business was conducted at that meeting. Negotiations were resumed on April 16 and the succeeding meetings were thereafter held without Grimes. On April 22, the Respondent discharged 9 of the 10 members of the employees' negotiating committee. The reason assigned" by the Company for the dis- charge was that, contrary to written instructions from Meriwether, they had left their employment during working hours to attend a bargaining meeting which had been set by Bellew, without the Company's concurrence, at a Padu- cah hotel for April 22 at 9: 00 a. m. The employees' negotiating committee continued to represent them and, with Bellew, met with the Company's repre- sentatives at the remaining meetings. At. 2: 00 p. m. on May 26, 1948, 57 of the Respondent's employees left the plant and went on strike. Thirty-three employees included in the bargaining unit, who were at work that day, did not walk out with the others. During the course of the next few days 9 other employees (who apparently were not drawn from the 33 who remained on duty, but consisted of absent employees) joined in the strike, making a total of 66 striking employees. Picketing ac- tivities commenced that afternoon and continued for an undetermined period.16 The cause of the strike, the facts underlying it, and the nature of the picketing and related activities will receive appropriate consideration below in conjunction with an analysis of the respective contentions of the parties. On May 29 and thereafter, 1a the 66 employees applied to Meriwether for re- instatement of their jobs. On each of the occasions the employees' offer was rejected. The Respondent has not reinstated any of the employees. 13 The facts pertaining to the authority of Grimes to represent the Union, as well as the detailed events of the meeting of April 9, will be considered below. 14 Facts relating to the discharge will be discussed below in greater detail in conjunction with the Respondent's alleged refusal to bargain with respect to their reinstatement. is There is evidence that picketing was still in progress in July. le The first offer was made orally to Meriwether at the plant by Bellew upon authori- zation of the striking employees. On June 1, 1948, 61 of the employees addressed a signed application in writing to Meriwether. On August 11, 7 employees (3 of whom had signed the June 1 application) addressed a similar application to him. There is no dispute that the oral application was made by Bellew on May 29 and that the subsequent written applications were received in "due course." Meriwether rejected Bellew's offer on May 29. The written applications of June 1 and August 11 drew two responses from the Respondent's counsel, respectively dated June 9 and August 23, 1948, to the effect that the firm "does not con- sider the signers of the letters, or any of them, employees of the Company." The General Counsel contends that certain events preceding Bellew's application and the ciruumstances surrounding Meriwether's rejection constituted a discharge of the strikers, and that the discharge, as well as the denial of reinstatement, was discriminatory. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD . The Union made proposals on May 29 and July 14. to representatives of the Respondent that negotiations be resumed. The offers drew responses (to be mentioned later) which, in the General Counsel's view, constituted a refusal to bargain. The negotiations have not been resumed. B. The Respondent's alleged failure to bargain in good faith 1. General Although the Respondent's business is corporate in form, the evidence yields the indisputable conclusion that Weiner has complete control over the Com- pany, including its personnel and labor policies.f4 Evidence.of his attitude to- ward the Union and the employees, both before and after the election, is there- fore appropriate. According to uncontradicted and credited testimony adduced by the General. Counsel, on March 16, the day preceding the election, Weiner assembled all of the employees at the plant and addressed them for about an hour and 45 min- utes.18 Among other things, he said that he could not understand how employees so fairly treated "could let an outsider come into their lives and give them a bum steer." He also spoke of the "privileges" the employees had enjoyed in the past,, including paid vacations, Christmas bonuses and a workweek of 48 hours "when, he could have cut them back to 40 hours" because of the firm's inventory. If the election were won by the Union, Weiner stated, the employees "would have lost some of (their) privileges and freedoms." 19 Grimes also spoke at the meet- ing at Weiner's invitation. During the course of his remarks, Weiner said that after the election he and Grimes "would shake hands and be friends and they would carry on in the best that they could." Weiner's avowal of friendship contrasts with his conduct soon after the re- sults of the election became known. According to the uncontradicted and cred- ited testimony of Alice Brian, an employee, a day or two after the election, Weiner came into the Casting Department, where she worked, and said, "Well, .. . I'll make 'em boo me; . . . I'm going to show 'em what I can do . . . for them stabbing me in the back. I'm going to cut their hours from 48 until a 40-hour week and see if they can live on that."" At about the same time, Weiner made a similar visit to the Mold Department, in the company of Merl- wether and another official of the Respondent, gathered the employees there about him and in an angry manner discussed the privileges the employees had previously had, asserting that they had chosen their "side" and had "stabbed him in the back" and that thenceforth "everything would be carried out in a business proposition," and accusing one of the employees (Ed Reeves) of being 17 Evidence of Weiner's complete control over the Respondent appears at many points in the record. As an example, see G. C. 16-A, a copy of a newspaper clipping, admittedly quoting Weiner. It was admitted in evidence by stipulation of the parties. 18 The transcript quotes one employee, Charles Powley, as estimating Weiner's speech as of 45 minutes' duration. The transcript is in error, as the Examiner recollects that Powley estimated the time as 1 hour and 45 minutes. Other participants in the meeting testified that Weiner spoke for 1 hour and 45 minutes. The latter estimate was not controverted by the Respondent. is The General Counsel does not contend that Weiner's speech constituted an unfair labor practice, nor does the Examiner refer to it as such. Reference is made to it here solely to contrast it with Weiner's conduct after the election and because it facilitates an evaluation of such conduct which serves to make clear what he meant by "privileges." 20 As the employees were paid at hourly rates a curtailment of their workweek would reduce their take-home pay, particularly as the Pair Labor Standards Act requires the. payment of time and one-half for hours in excess of 40. DEENA ARTWARE, INCORPORATED 745 "one of the (Union) organizers." On that occasion, Weiner pointed to the fact that he "didn't have to let us work 48 hours a week because he had enough ware stored" ( testimony of Reeves and Steger ) and that no smoking would thereafter to permitted, except in the rest room (Steger's testimony) 21 Significantly, the plant, which had operated on the basis of a 6-day week of 48 hours prior to the election was placed on a 5-day week of 40 hours (with a consequent decline in take-home pay), either during the pay-roll period of March 21 or March 27.22 Meriwether testified under cross-examination that the deci- sion to reduce the hours was made by Weiner and instructions to that effect were "handed down from Chicago." Almost from the time of the election on March 17 until the strike on May 26, there was a marked decline in hours worked by the employees in the various departments 23 While there is some suggestion in the Respondent's evidence that the reduction in hours was the result of an accumulated inventory,' the Examiner finds from all the surrounding circum- stances that it was a measure of reprisal against the employees because of the selection of the Union as their bargaining representative. Shortly after the negotiating meetings began, Weiner summoned all of the employee members of the Union's negotiating committee from their work to meet with him in the Paducah office. Bellew and Grimes were not present. Meriwether, Mrs. Hendren, and Mrs. Henson, who were Wiener's subordinates and the Respondent's delegates at the negotiations, were present and had an opportunity to hear his remarks and to observe Weiner's attitude toward the employees' committee and their union and its leadership. Charles Powley, an employee, testified that Weiner closed the office door and started to shake his finger in his face and that of Harry Bennett (another employee and president of the Union local) and told the employees that they had "chosen (their) side," that he had "heard these wind-bag union organizers before," and that "if you people are out of work and starving it won't be my fault." Powley responded that Weiner should "go and tell Mr. Grimes that; that we had work to do; if it was all right we was going back to work." The employees then returned to 21 The testimony of Reeves and Steger is uncontradicted and the Examiner credits it. 22 Mrs. Henson, who is in charge of the Respondent's pay-roll records, testified under cross- examination as to the period when the reduction in hours occurred. 23 See testimony of Mrs. Henson under cross-examination and testimony of Alice Brian. The Respondent introduced an exhibit (R-15) designed to show the average weekly hours worked by plant employees as a whole in 1947 and 1948. The Respondent's own exhibit shows an average workweek of 46 hours for the pay-roll period ending March 13, 1948, and decline to 41 hours for the period ending March 21. From that point until the strike, the average hours remained below 40 in about half the weeks and never rose above 40.6 hours. Significantly, the average hours rose markedly and were restored to approximately the level of the period preceding the election after the Respondent had replaced the strikers (constituting practically the entire union membership of the plant local) with other em- ployees. The reduction in hours affected all departments except the Kiln Department (see Mrs. Henson's testimony). Because of the nature of their operation, it was necessary to operate kilns on a 7-day, 24-hour basis throughout the year (shutting. down only once a year at Christmas), and kiln employees continued to work their customary long shifts. 21 Meriwether testified under cross-examination that the reason for the reduction was "a surplus of amount of ware (pottery) on hand." However, he admitted that it was not a large surplus and that there had been larger ones. His testimony on this point impressed the Examiner as evasive. Although he purports to be in full charge of the plant and testi- fied at another point concerning the care he takes to adjust labor costs to production, he stated that he could not remember when the hours were cut, speculating at first that it was in May and then in March . If it were the intendment of Meriwether 's testimony that the inventory was the sole reason for the curtailment of the workweek , the Examiner does not credit such testimony, 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD their work. Bennett testified substantially to the same effect,2' adding that Weiner also reminded the employees that at the general meeting with the em- ployees on the day preceding the election, he (Weiner) had informed the em- ployees "that if the election" were won, they "would have lost some of (their) privileges and freedoms." The testimony of Powley and Bennett concerning the meeting with Weiner in the office stands uncontradicted. The Examiner credits it and finds that Weiner, in substance, made the remarks attributed to him and conducted himself in the manner described by the witnesses. Prior to the election, there was no restriction against smoking anywhere in the plant, except the Inspection Department where shredded paper constituted a fire hazard. Within a few days after the election, signs appeared throughout the establishment prohibiting smoking by the employees. About that time Meri- wether held a meeting of some of the employees and told them smoking would be permitted only in the lavatory. Some of the department supervisors issued instructions to that effect, one of them (Tom Stephen, assistant plant superin- tendent) telling Powley that he would discharge him immediately if the latter were caught smoking outside the rest room. When one employee, James Cole- man (a member of the negotiating committee), uttered a protest to his fore- man, Milton Scillion, the latter laughed and said, "These people don't know how easy they had been getting along around here." 26 Meriwether admitted under cross-examination that the smoking prohibition went into effect 2 days after the election, but asserted that it had been con- sidered earlier in the year and that the Company's insurance agents had installed the signs to reduce the fire hazard and, therefore, the premiums. The insur- ance agents were not produced as witnesses. The Examiner does not credit Meriwether's implication that the reduction of the hazard and premium was the sole reason for the prohibition, even assuming that it was a reason. Con- sidered against the uncontradicted evidence' of Weiner's remarks both before and after the election and the sudden establishment of other restrictive devices,27 the Examiner finds that the smoking restriction was a reprisal levelled against 25 Bennett quotes Weiner to the effect that the employees "had chosen (their) representa- tives," and that "any of these families" who were "connected with this starved to death," Bennett "would be partially responsible for it." Bennett does not quote Weiner as referring to "wind-bag union organizers," but quotes him as making critical remarks about union organizers and Grimes. Bennett also states that Powley pointed out to Weiner that Bellew (not Grimes) was absent. The examiner regards these variances as minor and attributable to the imperfections of the human memory and the inability of the mind to record precise details of a discussion for exact repetition months later. The versions given by both wit- nesses are in all significant respects substantially the same and were uncontradicted by the Respondent. 26 Scillion, who testified for the Respondent with respect to other matters, did not deny making the remark attributed to him. 24 There is uncontradicted evidence that Foreman Scillion called a meeting of the kiln employees during the period of the bargaining meetings and told them that in the future they would be prohibited from interchanging shifts (see testimony of Powley and Bennett). The General Counsel also adduced evidence that prior to the election, employees had been at liberty upon completion of their day's work in advance of quitting time to remain at their benches, go outside the plant, or to take a shower preparatory to departure, but that after the election, the employees were prohibited from leaving their benches "until the whistle blew" and from punching the clock until 3: 33 p. m., although the day's shift ended at 3 : 30. Meriwether testified that the rule that employees were not supposed to leave their benches before quitting time had always been in effect and that he had instructed foremen prior to the election to enforce the rule and to discharge persons who violated it, but he admitted that no one had ever been discharged for such cause and that no infractions had ever been called to his attention. Significantly, the evidence of what the practice (and not the rule) had been was not contradicted by the Respondent's evidence. The Respondent, of course, DEENA ARTWARE, INCORPORATED 747 the employees because they voted for the Union, wholly aside from any con- tributory motives of an innocent nature. With respect to one or more of the threats and acts of reprisals described above, there is some suggestion in the record and in the Respondent's brief that such conduct is not alleged in the complaint and that evidence of Weiner's con- duct prior to the initial bargaining conference on April S is irrelevant. It is true that the complaint does not allege the indicated conduct, but at least for the purpose for which the evidence was received, it need not do so. The re- spondent's good faith in the bargaining negotiations is one of the crucial issues in this proceeding, perhaps the primary one. Good faith is a matter of intent, and evidence of the Respondent's hostility to the newly won union status of its employees and of Weiner's threats and acts of reprisal, particularly the remarks uttered by him in the presence of subordinates whom he had delegated to repre- sent the Respondent in the negotiations, have a material bearing on the intent with which the Company embarked upon, and engaged in, the negotiations. As Judge Learned Hand observed in a similar connection, ". . . the earlier transactions were peculiarly persuasive evidence; they are properly to be re- garded as earlier instances of a continuous design rather than as disconnected examples of an enduring disposition" (N. L. R. B. v. National Seal Corporation, 127 F. (2d) 776 (C. A. 2) )." 2. The Respondent's refusal to meet with Grimes The Respondent refused to meet with and excluded Grimes from the second bargaining meeting. The General Counsel cites the Respondent's action as a mark of its failure to bargain in good faith. When it excluded Grimes, the Company justified its position with the statement that he was "not a member or officer" of the Union. The argument is also made in the Respondent's brief that "he had no authority to negotiate for a contract" for the Union," and he is char- has an undeniable right to make and enforce the indicated rule, but the sudden curtailment of the previous practice, while a minor matter, deserves consideration against the back- ground of the other threats and measures of reprisal described above as symptomatic of the Respondent's attitude toward the newly unionized employees and the bargaining nego- tiations in which they were then engaged. The Examiner credits Meriwether's testimony concerning the preexistence of the rule that employees remain at their benches until quitting time, although they had completed their day's work. However, he also credits the employees' testimony (Powley, Coleman, and Carper) that prior to the election such a rule had never been enforced, that they had been at liberty to take showers, clean their tools or go outside the building, and that the practice was curtailed after the election. The Examiner finds that the post-election restriction was a measure of reprisal against the employees because the Union had won the election. 28 See, also, among many other cases, Wallace Corp. v. N. L. R. B., 323 U. S. 248 ; N. L. R. H. V. McLain Fire Brick Co., 128 F. (2d) 393 (C. A. 3) ; N. L. R. B. v. T. W. Phillips Gas and Oil Co., 141 F. (2d) 304 (C. A. 3) ; N. L. R. B. v. Collins and Aikman Corp., 146 F. (2d) 454 (C. A. 4) ; N. L. R. B. v. Kohen-Ligon-I'olz, Inc., 128 F. 2d 502 (C. A. 5) ; Matter of Newark Morning Ledger Co,, 21 N. L. R. B. 988, enforced as modified on other grounds, 120 F. (2d) 266 (C. A. 3), certiorari denied, 314 U. S. 693 ; Matter of Dannen Grain and Milling Co., 30 N. L. R. B., 888, modified on other grounds, 130 F. (2d) 321 (C. A. 8). " It may be noted that the memorandum which Meriwether read in excluding Grimes makes no reference to the latter's "authority," but rests the exclusion on the sole ground that he was "not a member or officer" of the Union. Perhaps the absence of "authority" was the intendment of the language used in the memorandum, but in the light of the Examiner's finding made below as to the real reason for the exclusion, it is not improb- able that the question of his "authority" is an afterthought, and that the intendment of the memorandum was to rest his exclusion on his nonmembership, irrespective of his "authority." 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD acterized therein as "a volunteer negotiator " whose exclusion , because "he 'did all the talking' at the first meeting" was to the interest of the Union 90 Quite aside from the question whether the Respondent accurately appraises the facts pertaining to the "authority" of Grimes "to negotiate for a contract ," the reference to his authority in that regard serves only to obscure the issue.31 The question involved is not "his authority to negotiate for a contract," but the right of the Union to have him participate in the meetings and, if it so desired , have him speak for it, assist it in the negotiations, or do anything else that it properly saw fit to delegate to him. There is also the question, important in this proceed- ing, whether the exclusion of Grimes demonstrates an absence of good faith on the Respondent's part. The evidence fully supports the authority of Grimes to participate in the nego- tiations on the Union's behalf. In fact, the proof demonstrates a continuity of representation by him dating from the early clays of active organization in the plant. He is employed as an organizer by the American Federation of Labor, of which the Union is an affiliate, with the duty of rendering "service" to the Federation 's affiliates , such as organizing, representing "them in any contract negotiations," and assisting "them in any way they might ask for assistance." Grimes originally became active in the organization of the plant at the request of Henry Bennett who was employed there and was at that time president of the plant local of the Union. On behalf of the Union, Grimes signed the agree- ment for the consent election (the Respondent's counsel was a signatory for the Company). Weiner gave recognition to his status as a representative of the Union and of its members in the plant by inviting him to address the employees at the meeting on the day preceding the election. It is undisputed that Weiner introduced him as a representative of the Union, and there is no contention that the Respondent was unaware at that time that Grimes was on organizer for the Federation and not a member of the Union. Moreover, Grimes gave uncontra- dicted testimony, which the Examiner credits, that Allie Mosser, vice president of the Union, and Bellew (the Union's international representative). requested him to attend the negotiating meetings and to give Bellew "all assistance possible on negotiating the contract." Finally, Grimes attended the initial meeting in the Company of Bellew and the employee negotiators and participated in the meeting with and for them. That circumstance alone, if no other, establishes the fact that they wanted him to be there. To consider Grimes, in the face of the facts as ,"a volunteer negotiator," and to assert that he had no authority from the Union to participate in the negotiations is to ignore the evidence. 10 Evidence adduced by the Respondent , through Mrs. Hendren , described Grimes as "more or less ( taking ) charge of the (first ) meeting" and as doing "most of the talking." Wholly aside from the fact that the evidence (even that offered by the Respondent) does not sustain the view that Grimes "did all the talking," if the Respondent's implication is that that was the cause of his exclusion , it runs counter to testimony given by the Respondent's own witnesses. Meriwether stated under cross-examination that Grimes was excluded because he was not a member of the Union and not because he was disor- derly. Under cross-examination, Mrs. Hendren admitted that he was excluded, not because his presence "made for some disorder," but because the Company "felt he was not a repre- sentative" of the Union and that the addition "of one more person that would take quite a least evidently" in the negotiations would "add more difficulty to the problem of nego- tiating a contract (emphasis supplied). 31 The Examiner does not understand the phrase "negotiate for a contract ," as used in the Respondent 's brief, to mean the execution of an agreement . The Respondent did not assign any lack of authority to execute a contract when it excluded Grimes , and, in any event, the selection by the Union of signatories in its behalf is the concern of the Union and not of the Respondent. DEENA ARTWARE, INCORPORATED 749 The contention that the Respondent had a right to exclude him because he was "not a member or officer" of the Union is without merit.32 There is no require- ment in the Act that membership in a Union is a prerequisite of its right to select an agent to represent it and its members. To read such a condition into the statute is contrary to the full freedom of choice in representation guaranteed by Section 7. The necessary consequence of the exclusion of Grimes is that the Respondent was, in effect, dictating to its employees and the Union who should represent them in the negotiations. That such was the Company's intention is manifested not alone by the physical fact of Grimes' exclusion but by the view expressed at the hearing, perhaps unwittingly, by Mrs. Hendren that in Bellew "we had a repre- sentative" (of the Union), and "we felt we had one." "It is well settled that an employer may not dictate the personnel of the group that his employees select to represent them, that is the necessary and exclusive right of the employees" (Matter of Hancock Brick and Tile Co., 44 N. L. R. B. 920) .' By excluding Grimes, the Respondent effectively deprived its employees of their "exclusive right," and they were thus left with a choice of not bargaining at all or bargaining without the aid of a person whom they had through their Union authorized to assist them. The Examiner finds that Grimes was authorized by the Union to attend the meetings and to participate in its behalf in the collective bargaining negotiations. In barring him, the Respondent refused to bargain with the Union, thus con- travening Section 8 (a) (5) of the Act. In addition, the exclusion of Grimes manifests an intention by the Respondent not to bargain in good faith. The objection. that he was not a member of the Union strikes a formalistic and mechanical note in the light of Weiner's previous recognition of Grimes' representative capacity and avowal of friendship before the election. Significantly the Respondent chose the post-election period to raise a question about his union membership and did so during a period substantially coinciding with that in which it was engaging in reprisals against the employees. The exclusion of Grimes, in the opinion of the Examiner, was part of the pattern of interference and reprisal upon which Weiner embarked after the Union won the election, and was thus a manifestation of bad faith. That conclusion finds additional support in the evidence, particularly that reflecting Grimes' status among the Union's representatives and the recognition by the Respondent of his position among them. Grimes had been a union repre- sentative for more than 15 years. He had been engaged in his present duties for 2 years, and prior to that time had been a business agent for a union local and a representative of the Kentucky State Federation of Labor. Without re- viewing the many facts which lead to it, the conclusion is fully warranted that Grimes has substantially greater experience in the sphere of industrial relations and collective bargaining than either Bellew" or the employees on the Union's 32 Matter of Hancock Brick and Tile Co., 44 N. L. R. B. 920; Matter of The Oliver Cor- poration, 74 N. L. R. B. 483. 39 See, also, Matter of New Era Die Co., 19 N. L. R. B. 227 enforced as modified, 118 F. (2d) 500 (C. A. 3) ; Matter of Hoppes Mfg. Co., 74 N. L. it. B. 853; Matter of The Oliver Corporation, 74 N. L. R. B. 483; Matter of The Kansas Utilities Co., 35 N. L. R. B. 936; Matter of Dixie Coach Corporation, 25 N. L. R. B. 869 ; Matter of Lindeman Power and Equipment Co., 11 N. L. R. B. 868 ; Matter of Louisville Refining Co., 4 N. L. R. B. 844; Matter of Kentucky Utilities Corporation, 76 N. L. R. B. 171. 21 Bellew had been a representative of the Union for only a little over a month before the first negotiating meeting and had had no hand in the organizational work. Before assuming his duties, Bellew had been a railroad employee. He has since returned to his 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD committee. That the Respondent was conscious of this is to be inferred not only from the manifest evidence of his status, but from Mrs. Hendren's reference to him at the hearing as the addition of "one more (to the others) that would do quite a bit of talking" and as a "person that would take quite a lead evidently" in the negotiations " To support the view that the reason assigned for the exclusion of Grimes was advanced in good faith, there is only the self-serving statement which Meriwether read at the first meeting and advanced then for the first time. Measured against that are Weiner's recognition of Grimes on the day before the election as a spokes- man for the Union ; the fact that the Respondent knew that Grimes had signed the agreement for the consent election as a representative of the Union ; the circumstance that Grimes was plainly more experienced in industrial relations than the members of the Union's committee ; and the fact that the Respondent anticipated that be would play a leading role in the negotiations if permitted to continue. Tested by the objective facts, it is clear that the reason assigned by the Respondent for Grimes' exclusion was not advanced in good faith. The undersigned finds that the Respondent knew from all of the surrounding circum- stances that Grimes was authorized by the Union to participate in the negotia- tions, and that both his exclusion from the meetings and the reason advanced for it constitute a refusal to bargain in good faith. 3. The Respondent's alleged refusal to bargain concerning the discharge of mem- bers of the Union's negotiating committee In addition to Bellew and Grimes, the Union's committee was composed of 10 employees, 1 from each of 10 departments in the plant. The Union's local mem- bership felt that each department should be represented on the committee ' "regular" railroad job, but is still engaged on a part-time basis in working as an interna- tional representative for the Union. While the record does not show whether Bellew had had any previous experience as a Union representative, the fact remains that Union rep- resentation was Grimes' regular work and had been such for a substantial portion of his life, while Bellew's "regular job" was the one he testified he "originally held," that of a railroad employee. Moreover, Grimes had been on the scene for some months, had actively organized the employees, and had gained acquaintance with the management, while Bellew was so new to the setting that it was Grimes who introduced him to the management's committee at the first bargaining meeting. 15 Mrs. Hendren testified that at the first meeting Grimes advanced a number of pro- posals and made the statement that the contract whenever signed "would be retroactive" to that date, and that he insisted. as "a set rule" upon payment to the employees on the committee for time they spent in the negotiations outside of working hours. Meriwether and Mrs. Henson gave a less emphatic description of the content of Grimes' proposals (to which added reference will be made at another point). It may be observed that the alleged (principally by Mrs. Hendren) manner in which the proposals were advanced was not assigned by the Respondent, at the time Grimes was barred, as the reason for his exclu- sion . Conclusionary statements in the Respondent's brief that Grimes "sought to domi- nate-not negotiate" and intimations that his exclusion "may have been because the Respondent's representatives desired to bargain" appear to be no more than an after- thought. It made no reference at the meeting to his proposals or any claimed domination of the meeting by him or that his exclusion "may have been" because of a desire to bargain (nor should it be assumed that any of these grounds under the evidence in the case would constitute a valid ground for his exclusion). What "may have been" the Company's desire is not the issue ; the question is whether the Respondent excluded an authorized representative of the Union. "" Apparently certain departments, such as the kiln, had problems peculiar to themselves. When these arose, there is evidence that the members concerned took the lead for the Union in the relevant discussions (see testimony of James Coleman). DEENA ARTWARE, INCORPORATED 751 On April 22 (the day after the fourth meeting) Meriwether discharged 9 of the 10 employees on the committee 37 Shortly, thereafter, the Union filed a charge with the Board alleging that the employees had been discriminatorily discharged in violation of Section 8 (a) (3) of the Act. That allegation was retained in Paragraph 2 (D) of the amended charge filed on October 11, 1948. On or about November 3, 1948, that portion of the charge, as amended, was with- drawn, together with other allegations not relevant here. The complaint does not allege that the discharge was discriminatory. It does claim, however, that the Respondent's refusal to bargain in good faith was manifested, among other acts, by its refusal "to bargain concerning its discharge" of the 9 employees. The applicable issue, therefore, is not whether the discharge was discriminatory, but whether there was a refusal to bargain in good faith concerning the discharge or, more properly put, the reinstatement of the individuals concerned. The Respondent contends that the issue was not a bargainable one. Before setting down a conclusion on any of the contentions, a consideration of the significant background facts is appropriate. The Respondent adduced evidence that at the first bargaining meeting the Union requested that, if the meetings were to be held outside working hours, the negotiating employees should be paid for their time ; that the Respondent stated, in effect, that, because of the size of the Union's committee, meetings during working hours would interfere with production; that, therefore, the negotiations should be conducted outside the workday; and that it would not pay for the employees' time, although if the number of employees were reduced to three, the Company "probably" would do so. According to the Respondent's proof, no agreement was reached,' and the parties then proceeded to a discussion of the Union's contract proposal. Bellew admitted in his testimony that there was a discussion concerning payment of the employees, but stated that he did not remember whether the Company made a proposal to reduce the number of committee members for production reasons, and that, as "as well as (he could) remember," only the dates, and not the time, of future meetings were discussed. The Examiner regards Bellew's testimony on the subject as unreliable and finds that the Union did request that the meetings be held on company time, that the Respondent proposed a reduction of the number of employee negotiators, that the Union rejected that proposal, and that the Respondent took the position that the size of the Union's committee made it necessary, for reasons of production, to hold the meetings after working hours 39 37 The discharged members of the committee were Harry Bennett, Gertrude Dowdy, Flor- ence Fowler, Reecle Spiceland, Venice Watson, Thomas A. Richards, William R. Brooks, Lonnie DePriest, and Charles Powley. Is The Respondent's committee members gave undisputed testimony that Grimes stated the Company had no right to question the number of the Union's representatives, that the membership had originally planned to have a committee of 20, and that if the Company would not pay the employee negotiators for time spent at the meeting, or, in effect hold the meetings on company time, the Union's committee would be enlarged to 20. The Examiner credits the testimony that Grimes did, in substance, state that the number would be increased to 20 unless the meetings were conducted on company time. Actually, the committee was not enlarged, and until the discharge of the nine committee members, all the meetings were held after working hours in accordance with the Respondent' s wishes. ','The findings made above, as well as the conclusion as to the unreliability of Bellew's testimony on the point involved, is fortified by the fact that the General Counsel did not call Grimes as a rebuttal witness, although the Respondent' s witnesses testified that it was he who advanced the proposal, on behalf of the Union, that meetings be held on company time or that the employees be paid for meetings on their own time. Moreover, the Exam- iner regards the relevant portions of Bellew's testimony as evasive and inconsistent with the terms of a letter dated April 21, 1948, written by him to Meriwether, in which he complains of the Respondent's contention that "all meetings be after working hours." 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the third meeting (April 16), the Union expressed its willingness to pay the employees, provided that the Company would allow it to fix the time (not only the dates) for half the meetings. The Respondent rejected that proposal. Up to, and including, the fourth meeting (April 21), all of the negotiations were held after working hours in conformity with the Respondent's position. All of the meetings were held at the Company's office. While no express agreement had ever been reached, there was apparently a tacit understanding that the parties would alternate in setting the dates for the meeting, and they had followed that practice. In accordance with the practice tacitly adopted by the parties, the Respondent fixed the date for the meeting held on April 21. Toward the close of that meet- ing, Bellew handed Meriwether a letter, expressing the view that he (Bellew) was "within (his) rights in asking that the Union arrange half the meetings" and that Meriwether was "not being fair" in his contention "that all of the meet- ings must be after working hours," and informing the plant manager that the Union had arranged the next meeting for 99: 00 a. m. on the following day at a local hotel. The letter also stated that, if Meriwether preferred, the meeting would.be held at the Respondent's office. There is some conflict between the versions offered by the General Counsel and the Respondent as to the details of what was said and clone after Bellew handed Meriwether the letter, but, in view of the finding to be set out below, it is unnecessary to review the conflict in the testimony, much of which involves evidentiary minutiae. The basic undisputed facts are that Meriwether told Bellew that the employees would be expected at work the next day; that on the morning of April 22, each of the nine 40 emplos'ees was given a written notice that he would not be given permission to leave his work to attend the proposed meeting at the hotel ; that the employees left their work at about S : 30 a. in.. arriving at the hotel at the appointed time; that the Respondent's committee did not appear ; and that the employees returned to the plant about 9: 30 a. m. and were discharged by Meriwether on the ground that they had disobeyed a written company order. It is also undisputed that the employees subsequently applied. for reinstatement, either directly or through a spokesman ; that the Respondent refused to accede to the request ; and that at each of the remaining meetings (April 29 and 30 and May 5 and 7) the Union's committee, usually through Bellew, attempted to negotiate for the reinstatement of the discharged employees." According to Bellew, at the meeting of April 29 and at subsequent meetings,. his request that the Respondent bargain with the Union concerning the discharge was met with the response by Meriwether that the matter had been referred to the firm's attorney." Bellew also. stated that Meriwether refused to talk about it. However, Bellow's assertion that Meriwether refused to discuss the matter is conclusionary and unreliable, for the proof as a whole, including Bellew's, establishes that the matter was discussed to a substantial extent, considering. the limited area for negotiation the subject permitted. Powley testified that at the fifth meeting (April 29), the Union proposed that the discharged employees 40 The tenth employee on the committee, James Coleman, was a kiln worker. The shifts of kiln employees differed from the scheduled plant hours which were from 7 a. m. to. 3: 30 p. m. Coleman was not on duty on the morning of April 22 and was not discharged.. He went to the hotel at the hour specified in Bellew's letter on his own time. 41 After the discharge, Bellew told Meriwether that the Union (lid not wish to break off negotiations, and asked the plant manager to set a date for the next meeting. Meriwether did so, specifying April 29 as the date , and the Company 's office as the place. Bellew agreed, and the next meeting took place on April 29. 4 See, also, testimony of Powley and Bennett. DEENA ARTWARE, INCORPORATED 753 be reinstated pending a decision of the Board on the question under a charge already filed or to be filed, but that the response of the Respondent's committee was that the Company would not reinstate the employees and that the matter had been turned over to its counsel. At a subsequent meeting, according to Powley and other committee members,' the Union offered to withdraw its charge if the Respondent would reinstate the employees, but that the Company's com- mittee asserted that the Respondent would "abide by the Board's decision." Mrs. Hendren also testified to that effect, adding that the Respondent's committee informed the Union that the Company felt that its "action had been fair," that "this was (not) a part of the contract being negotiated," and "that since the charges had already been filed, it was more or less out of our hands, and we would let it be decided by the (Board)." Meriwether gave testimony that at one point when Bellew broached the question of negotiating the reinstatement of the employees, the plant manager expressed the opinion that the discharge was a "company affair," that the employees had been discharged for disobeying a company order, "and (that) if we took them back anybody else would have the right to do the same thing." The question whether the discharge was discriminatory is not before the Ex- aminer for determination, nor can he be concerned, under the issues presented, with the wisdom of the path pursued by either side. The sole question is whether the Respondent refused to negotiate with respect to a bargainable issue and whether such refusal was a manifestation of its bad faith. The claim that the issue of the discharge was not a bargainable one is un- sound. Employees' grievances, including those arising from a discharge, are a proper subject for collective bargaining ; " unions exist, among other reasons, for the purpose "of dealing with employers concerning grievances, labor disputes," and "other conditions of employment" (Section 2 (5)) ; and it is clear that the Union and the employees affected felt aggrieved by the discharge, quite aside from the merits of the dispute which led to it. It does not serve the cause of industrial peace or the objectives of the Act to hold that an employer may turn a deaf ear to the contention of an appropriately selected bargaining agent that a discharge was unjustified. To require him to listen and bargain concerning the asserted grievance does not diminish in the least his right to discharge an employee for any cause, provided it does not offend the Act. However, the evidence does not establish a refusal by the Respondent to bargain concerning the discharge. Although on the surface the evidence, particularly that given by Meriwether and Mrs. Hendren, is susceptible to the conclusion that the Respondent refused to negotiate about the matter because it was a "company affair," the facts, upon closer scrutiny do not support the General Counsel's position. The real frame of reference in which the discharge was dis- cussed was not primarily in terms of a proposal to bargain and a refusal to do so; rather, it was in terms of a claim that the discharge was discriminatory (as witness the charge) or otherwise unjustified and a responsive assertion by the Respondent that its course was fully warranted. The focus of the discussion was the Union's charge and the Respondent's desire to submit to the decision of the Board the issue it raised. It was only after the Union withdrew its claim 68 See testimony of Bennett and Mrs. Spiceland. "Matter of Vanette Hosiery Mills , 80 N. L. R. B. 1116, 23 L. R. R. M. 1198 ; Matter of Ohio Calcium Co., 34 N. L. R. B. 917 , enforced as modified on other grounds , 133 F. (2d) 721 (C. A. 6) ; Matter of Los Angeles Spring Bed Co., 24 N. L. R. B . 528, 6 L. It. It. M. 412; Matter of Capital Broadcasting Co., Inc., 30 N. L. R. B. 146, 8 L. It. It. M. 37. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that the discharge was discriminatory and the General Counsel issued the com- plaint that the emphasis shifted away from the cause of the discharge to the evidence of the management's reaction to the proposal for reinstatement, as proof of a refusal to bargain on the issue. Moreover, the subject matter was one in which there was little room for the give and take of bargaining . On the one hand, the Union had insisted on its right to have a widely representative committee and an equal voice in setting the time of the meetings. On the other hand, the management had, with equal firmness, insisted it could not spare that many employees from their work for meetings during working hours. When the nine employees left their work, the Respondent dismissed them. The area of negotiation available to the parties was bounded by a proposal for the reinstatement of the employees and a refusal to do so. The Union proposed it, the Respondent refused to accede, with an explanation of its position, and it is clear that an impasse was reached concern- ing firmly opposed viewpoints. The Act does not require further negotiations after it is apparent that a settlement of the matter in issue is impossible." The Examiner finds that the Respondent did not fail and refuse to bargain in good faith concerning the discharge of the nine members of the Union's committee. 4. The evidence that the Respondent did not bargain in good faith concerning wages and other conditions of employment At the first meeting on April 8, Bellew presented a proposed agreement captioned "Union Proposal" (G. C. 4) to the management representatives. It contained substantially all of the Union's contract proposals, with the exception of a wage schedule, providing, instead, for "a substantial (but unspecified) general wage increase" and for the attachment in the future of a schedule of wages (presumably upon reaching an agreement with respect to wages). The Union did not propose at that meeting a definite amount as an increase. It did so at a later meeting.46 The Respondent did not submit any counterproposals at that meeting, either in the form of a contract or with respect to particular items k7 The first meeting was largely of an exploratory nature. The Union's proposal was read with some general discussion of its terms. At the first meeting both groups had a discussion concerning their authority to negotiate an agreement for their principals. It is undisputed that Bellew informed the management committee that the Union group had full power to negotiate an agreement. There is also no dispute that one or more of the union negotiators inquired whether the management committee was similarly empowered, and that they responded, in substance, that Weiner had "left it up to the local people" (Powley's 45 N. L. R. B. V. Remington Rand, Inc., 94 F. (2d) 862 ( C. A. 2) certiorari denied, 304 U. S. 576; Lengel-Pencil Co., 8 N. L. R. B. 988, 3 L. R. R. M. 184; Matter of Beckerman Shoe Corp., 21 N. L. R. B. 1222, 6 L. R. R. M. 166. 49 When Meriwether excluded Grimes at the second meeting, the former said he was prepared to negotiate with Bellew and the employee members "at any time and place." However, it was Bellew who took the initiative for the resumption of negotiations. After the abortive second meeting, he phoned Mrs. Hendren and arranged for a meeting on April 16 at the Company' s office. 47 Mrs. Hendren testified that at the third meeting (April 16), Mrs. Henson inquired whether she should type up a proposed contract as the Company' s counterproposal or use the Union's proposal as a basis for discussion , and that Bellew responded that that was up to the Company. The management never submitted a proposed form of contract, although certain specific proposals were made. These will be discussed below. DEENA ARTWARE, INCORPORATED 755 testimony) to negotiate the agreement "because they were familiar with local conditions" (Mrs. Henson's testimony). At the third meeting, April 16 (no business was transacted at the second except Grimes' exclusion), the Union advanced a wage proposal of a general increase of 25 cents per hour 48 At that meeting and at each of those which followed, Bellew advanced the Union's proposals and they were discussed by the members of both committees. Agreement was reached on a few proposals at the various meetings (what they were and their relative importance will be discussed below), but, with the exception of seniority no agreement was ever reached on what are plainly the most important of the Union's proposals. For convenience of reference, these may be described as five issues: Wages, union security, daily overtime (time and one-half over 8 hours), sick leave, paid vacations and Christmas bonuses (vacations and bonuses were coupled as one issue by Bellew in his testimony). From the evidence as a whole, it is the Examiner's opinion that the wages and union security issues were the primary bones of contention during the discus- sions. It is the view of the undersigned that the handling of the wage proposal by the Respondent's committee furnishes additional evidence to that described above that the Respondent did not bargain in good faith. At the first meeting, neither group placed any qualifications upon its authority to reach an agreement. The Respondent's committee made it plain to the Union that Weiner had delegated them to negotiate the agreement because they were the "local people." However, at the third meeting (which was really the first at which the parties came to grips over the issues between them), and at subse- quent meetings, the Respondent's committee introduced an equivocal note con- cerning their authority to negotiate an agreement, particularly with respect to wages. This conclusion emerges not only from testimony adduced by the General Counsel but from the Respondent's evidence as well. Bellew, Powley, and Bennett testified, in substance, that when the Union's wage proposal was made, members of the Company's committee stated that the ques- tion of a wage increase would have to be submitted to Weiner or the Board of Directors," although Bellew reminded the Respondent's committee that it claimed 48 Bellew's testimony fixes the April 16 meeting as the one at which the Union made its wage proposal. Mrs. Hendren and Mrs. Henson at certain points in the record fix the date as April 29, although Mrs. Hendren testified that she does not remember what was said concerning the proposal and the context of the testimony of both at other places in the record indicates that the proposal was made on April 16. Merlwether testified that he did not remember the date. Bennett, testifying without notes, indicated that April 16 was the date. Powley, also without notes, expressed the belief that it was made either at the fourth (April 21) or fifth meeting (April 29). Bellew used notes made by him at each of the meetings to refresh his memory. His notes, which were admitted in evidence by agreement of the parties, support his recollection that his wage proposal was made on April 16. Mrs. Hendren and Mrs. Henson had also made contemporaneous notes, but, according to Mrs. Henson, they do not show the date of the wage proposal. Ballew's recollection on this point seemed to the Examiner to have the most substantial founda- tion, and it is supported by other evidence in the record. The Examiner finds that the Union's wage proposal was made on April 16. 40 Bellew's testimony was that Meriwether said he "would have to talk to Mr. Weiner or the Board of Directors concerning wages." Powley quotes Mrs. Hendren as saying that "the wages would be left up to Mr. Weiner as in the past." Bennett testified that Meri- wether and Mrs. Hendren said that "they couldn't act on any wage increase, that that would be left up to Mr. Weiner." The Examiner attaches no significance to the minor variances in the testimony as it was given many months after the meetings and related to conversational exchanges among a substantial number of people covering a period of several hours at each meeting. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it had complete authority to reach an agreement with the Union. Bellew also testified that at the remaining meetings he continued to press for an agreement on the Union's proposals and for counterproposals, directing the attention of the Respondent's committee to their claim that they were empowered to reach an agreement on all issues. According to his testimony, at each of the remaining meetings," one or more of the company's representatives (usually Meriwether or Mrs. Hendren or both) made statements to the effect that the wage question was a matter for Weiner's determination or that it was up to Weiner or the Board of Directors. Other members of the employees' committee testified that statements of similar purport were made at various meetings 61 by members of the manage- ment committee, despite protestations by union representatives that the Respond- ent's delegates claimed they had full authority to make an agreement. Similarly, witnesses called by the General Counsel testified that on a number of occasions Meriwether and Mrs. Hendren expressed themselves in similar vein with respect to such issues as vacations, bonuses and paid holidays, including a statement by Meriwether that "they (the management committee) didn't have anything to do with the vacations or Christmas bonuses, (and) that Mr. Weiner also gave those Christmas bonuses himself" with a prediction that business might not war- rant a bonus that year (Mrs. Spiceland's testimony). According to testimony adduced by the General Counsel, Mrs. Henson, at one of the later meetings, made a statement to the effect "that Mr. Weiner might give us (the employees) some- thing better ; at the same time he might take some of the contract out" (Powley's testimony).' Meriwether, Mrs. Hendren and Mrs. Henson entered denials that they had made the statements attributed to them and gave their versions of what they had respectively said concerning Weiner or the Board of Directors. Their ver- sions of what they said merit separate analysis because their testimony contains different concepts of their authority and in at least one basic respect (reflected in Mrs. Hendren's testimony) tend to support the testimony of the employees that management representatives had said that the wage and other questions were a matter for the determination of Weiner or the Board of Directors. Mrs. Hendren stated that at the April 16 meeting, Powley questioned Meri- wether's authority to grant an increase 64 and that the latter responded that he so Bellew quotes Mrs. Hendren as saying at the last meeting (May 7 ) that Weiner and the Company's Board "would have to approve everything before any contract could be signed." 51 See testimony by Bennett, James Coleman , De Priest, Richards, Mrs. Spiceland, and I11rs. Watson. 52 See testimony of Bellew, Bennett, De Priest, Mrs. Spiceland , and Powley. Bennett attributes such a remark to both Meriwether and Mrs. Hendren at the April 29 meeting, although an agreement had been reached at the April 21 meeting with respect to paid holidays. Bennett testified without the aid of notes. In the main, the Examiner attrib- utes no special significance to inconsistencies with respect to such matters as dates in the testimony of both the Respondent and the General Counsel's witnesses , particularly where they testified without notes . In view of the detailed nature of the discussions, as u general rule, he has taken the position that such inconsistencies do not signify dishon- esty of motive in either group , but proceed from the fallible nature of the human memory. ^' See, also, testimony by Thomas Richards and Lonnie De Priest. Powley also testi- fied in connection with Mrs . Henson's remark , "that is one time I did blow my top" and that he "said a whole lot that day because I found out that I got fired by fooling with them people, and they didn't have the power to negotiate that document." 6* Evidence adduced by the General Counsel agrees that Powley 's questioning of Meri- wether's authority touched off a discussion as to the powers of the Respondent 's commit- tee, although, as outlined above , the General Counsel's evidence is that it led to state- ments by the Company' s committee that wages were a matter for the determination of Weiner or the Board of Directors. DEENA ARTWARE, INCORPORATED 757 could give an increase upon his own authority, but that "to protect himself personally, and not commit himself, lie might check with Mr. Weiner." She also testified that she made response to Powley that "this committee slid have that authority to negotiate the contract and that the things the Company agreed upon, the committee felt sure that the Board of Directors would pass on and approve." Mrs. Hendren then quoted Powley as stating that any action the Union committee took would have to be approved by the membership, and that the Respondent's committee stated "that the company had the same authority that the Union had, that their actions would have to be approved by the Union as we understood it, and our actions would have to be approved by the Board of Directors of the company." Under cross-examination she admitted that a cer- tain proposed wage schedule submitted by her committee to the Union on April 29 (and which contained no general increase) was subject to rejection by the Company, although submitted by its own committee. She also agreed under cross-examination that "the matter of wages" would be "up to Mr. Weiner and the Board of Directors" to "be approved in a contract," and stated that "it (the contract) was subject to approval of the Board of Directors." Meriwether's version on direct examination. was that "whenever" the union's proposal was brought up he "explained then that we couldn't give an increase, a definite increase, without making some provisions to increase our production."" He stated that in response to Powley's question about his authority, he said he had it, "but quite often I check to get the confirmation for may own protection." He also testified that Weiner had given them complete power to negotiate the contract. In response to a question from Respondent's counsel whether "any- thing (was) said about authorization by the Board of Directors of the actual execution of the contract," "e 11leriwether stated (somewhat unresponsively), "occasionally and no snore so than the Union would ask them for approval and they would state-I mean we would offer them a proposal and they'd say that they couldn't act on it until they got approval from the members of the Union." (Meriwether did not specifically quote Powley as the author of the statement that the Union committee's actions were subject to approval.) Under cross-ex- amination, Meriwether asserted that lie had the authority to give "everyone right there an increase of half a dollar per hour right then" (at the negotiations) and that his response to Powley was that he had the power to grant a "general increase," but that "for my own protection I would check with Mr. Weiner." He admitted that at a "later meeting" Mrs. Hendren said that the "whole con- tract and all its provisions were subject to the approval of the Board of Di- rectors and Mr. Weiner." Mrs. Henson also asserted that Meriwether had stated he had the power to grant an increase , but she quoted him as stating, ". . . but before I did I would check with the Chicago office to protect myself personally because the books as far as cost (is) concerned are not held at the Paducah office." Mrs. Henson also affirmed that "company representatives" had made the statement at one of the meetings that the "entire contract would have to be approved by the Board of Directors in Chicago or Mr. Weiner." Contrary to Mrs. Hendren's understanding of the management committee's authority, Mrs. Henson denied 55 The company never made a counterproposal on wages providing for a general increase - with some provision for assurance of production. fia It may be noted that counsel 's question deviated from Mrs. Hendren's testimony. She said that the contract ( including its wage provisions ) would have to be "approved" by the Board of Directors , and not merely that the purpose of submission would be "authoriza- tion " of its "actual execution." 867351-50-vol. S6-49 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that it was her (Mrs. Henson's) view that the contract would have to be "ap- proved either by Mr. Weiner or by the Board of Directors." Mrs. Henson also asserted that Powley at the "first or third meeting" stated that the agreement "would be subject to the vote of the local." What emerges from these versions is a set of conceptions by the Respondent's committee of their authority, which contain elements of inconsistency and are difficult to reconcile. At one end, Mrs. Hendren assumed that their agreement would be subject to Weiner's approval or that of the Board of Directors and that this would even extend to a wage proposal originating with the Respondent's committee, although it provided for no general increase. At the other end, Mrs. Henson construed the committee's agreement as binding on the Respondent, or as she put it, ". . . whatever I agreed on as one member of the committee, it would be binding on the Company." Meriwether's position is somewhere between the two, asserting his full authority to grant an increase, but stating that as a precaution lie would first consult Weiner. However, according to the implications of Mrs. Henson's version ' of Meriwether's statement about his precautionary "check with the Chicago office," such consultation is in practical effect not a matter of choice "because the books as far as cost (is) concerned are not held at the Paducah office." The incompatible nature of the assumptions by the management committee with respect to their authority. to bind the Company is given significant em- phasis, particularly in the light of Weiner's failure to testify, by certain an- contradicted testimony adduced by the General Counsel. Prior to the May 6 meeting, Bellew called the International president of the Union, Harold Flegal, on the telephone and "asked him to get in touch with this Mr. Weiner that had been referred to along in the meetings by Mr. Meriwether and see if something could be arranged or get him down here, that we might do something about these issues that were in dispute." The Union's president agreed to call Weiner and did so the same day. Flegal gave the following version of his telephone conversation with Weiner. He told Weiner that the Union "had a very responsible and level-headed man" in Paducah, and if "he (Weiner) would come down to Paducah," Flegal "believed that they could probably get together in these negotiations." In response, Weiner "seemed excited and agitated," speaking "in in excited voice, and fast." He said that "he was afraid to come to Paducah," fearing "physical violence." 07 Weiner asserted that he had "turned the matter entirely over to his attorney, that he had full power to act for the Company in these negotiations." Flegal tried "at least two or three times to convince (Weiner), that without a question of doubt, if lie could meet with Mr. Bellew. . . . they could proceed with the nego- tiations." Weiner "monopolized the conversation," going "into lengthy recitals about certain things that happened down here, and that he was afraid to come down to Paducah." In his "lengthy recitals," Weiner asked Flegal if the latter "wanted to buy the plant" and upon Flegal's expression of disinterest, offered to give it to him. Flegal's testimony stands uncontradicted. The Ex- G7 There is undisputed evidence that Weiner came to Paducah and visited the plant while the negotiations were in progress. That was the occasion when he assembled the employees' committee and shook his finger at Powley and Bennett, made disparaging renmrks about "union organizers," and referred to the possible "starvation" of his em- ployees' families. It is also a fact that he came to Paducah about July 21, about 7 weeks after the commencement of a strike at the plant. Picketing was still in progress at least as late as July 1.4. The strike has never been settled. On the occasion of his visit in July. lie gav;; a long statement to the local newspaper. There is no evidence that Weiner lass '': 'r teen threatened by any of his employees or anybody else. DEENA ARTWARE, INCORPORATED 759 aminer credits his testimony and finds that the conversation with Weiner occurred as related by Flegal. Among the significant features of Flegal's testimony is the fact that it estab- lishes a developing sense of frustration on the Union's part and lends corrobora- tion to the testimony of Bellew and the employees that the Respondent's committee did, in fact, make repeated statements that the wage and other impor- tant issues were a matter for Weiner's determination. Even more significant is the fact that Weiner did not once mention his committee, stating that the negotiations were "entirely" in the hands of his attorney who "had full power to act for the Company," and this at a time when the negotiations were still in progress and in the face of the fact that the attorney had never appeared at the negotiations, was not a member of the Respondent's committee, and that the Union had never been informed of his authority. In fact, Mrs. Hendren gave testimony implying the absence of such authority, testifying that her committee had never consulted the Respondent's attorney "before offering a proposal." 68 Similarly, Meriwether denied that he had ever consulted the attorney about his authority to grant a wage increase, explaining, "he wasn't part of the committee. He was only our attorney." Upon the basis of the evidence and his observation of the witnesses, the Exam- iner finds that the members of the Respondent's committee made the state- ments attributed to them at the various meetings, in substance, that the wage and other issues involved were a matter for the determination of Weiner or the Board of Directors. However, the question involved is not only the relative extent of the authority conferred upon the respective committees ; " the primary issue is how, and to 68 Flegal's testimony also lends support to certain testimony given by Grimes concerning his exclusion and correspondingly discredits testimony by the management's committee with respect thereto. Grimes testified that at the time of his exclusion, Meriwether said he was following instructions when Grimes asked him for the reason for it. Asked about this incident, Mrs. Hendren testified, "I didn't hear him (Meriwether) make any such statement," and Mrs. Henson asserted that Meriwether had not made it and, "if he did, I didn't hear him." Meriwether's testimony on the question was evasive. Asked under cross-examination whether he had made the statement that lie was following instructions, he said, at first, that he had not. At a later point, he was asked whether he had checked his authority to exclude Grimes, and he said, "I don't believe I did, no." Then the ques- tion was put : "You didn't consult anyone ?" Grimes responded , "No." When the question was pursued whether anyone advised him on the matter, Meriwether asserted, "I don't understand what you mean," and upon a repetition of the question, he said, "I don't believe I asked anybody, no." Finally, the question was put to him whether he had spoken to Respondent's counsel about the matter, and Meriwether then stated that he had, that counsel had "advised him," and that he had followed the advice "in regard to the state- ment I gave him" (Grimes). The Examiner finds that Meriwether's testimony on the subject was evasive and unreliable, and that when he excluded Grimes, he did say that he was following instructions. 6e The Respondent's testimony and its brief suggest that the management committee's authority was equated with that of the Union's. It rests at least in substantial part on remarks attributed to Powley that any agreement reached would have to be approved by the Union's local membership. There was evidence (Powley's testimony), which the Examiner credits, that the Union's committee was vested by the membership with author- ity "to do as they saw fit on different proposals as they came up," and that an under- standing was reached at one of the local 's meetings, although apparently not formally, that Bellew would be the Union's signatory on any agreement reached. Powley, Bellew, and other committee members denied that any of the committee had made statements to the effect that any agreement secured would have to be referred to the local for approval. Powley explained that what be did say occurred in connection with a wage proposal made by the management committee on April 30. He asserted his statement was that "we had to take what they offered us back and make a report" and that if the committee "took 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what end, it was used.00 Where there is a will to bargain, the technical appara- tus may readily be found. That is particularly true under the evidence in this proceeding, for if any single fact emerges clearly, it is that Weiner controlled the Respondent's affairs. Thus, allusions by the Respondent in its brief that evidence of the limitations upon the authority of the Respondent's committee "seems to have reference to the law governing" corporate action through the Board of Directors, are question-begging. References to the need for corporate direction of the execution of an agreement or approval by a corporation's Board of Directors are beside the point. The Respondent's committee was no more than the executor of Weiner's intentions. The issue thus is whether the Re- spondent or, in other words, Weiner, conferred effective authority upon, and used, the committee as an instrument to bargain in good faith. Upon the un- contradicted evidence of Weiner's own statement to Flegal it appears that at least for some time prior to their conversation, if not from the inception of the negotiations, the Union was negotiating with a management committee which had no authority to bargain effectively, the actual authority residing elsewhere, .and that this circumstance had not previously been made known to the em- ployees or the Union. In other words, the employees who belong to the Union and Weiner were dwelling in two different climates, the employees in one in which they thought they were bargaining, while Weiner dwelt in a climate of legalism, as manifested by his refusal to heed Flegal's plea for effective bar- gaining and his "see my lawyer" attitude. The evidence of Weiner's attitude, ranging from his threats and acts of reprisal against the employees through the exclusion of Grimes down to the statements of the Respondent's committee, brings into clearer focus the meaning and conse- quences of the repeated remarks by the committee that wages and other issues were matters for Weiner's determination. While Bellew and the employees made repeated requests that the Respondent reach an agreement with them or make counterproposals on the wage and related issues," they were being fended off by repeated references to Weiner's authority in the matter. The plain result of this was that effective negotiation on vital issues was kept beyond the reach of that back down and told them that that is what we got for them, that they'd probably cut all of us's throat" (Powley said that was a "figure of speech"). To the Examiner, the meaning of Powley's statement is that he felt the proposal was so insubstantial that if it were accepted by the employees' committee the local would condemn the committee. The testimony given by the Respondent's committee, particularly in the light of Flegal's evidence of his conversation with Weiner, denotes an absence of frankness as to the real authority of the management committee and warrants the stamp of unreliability on evi- dence given by them with respect to the authority of either committee. To the Examiner, upon observation of Respondent's committee in the light of the evidence as a whole, it appeared that they were introducing a note of limitation upon the Union's committee's authority as a justification for limitations upon their own. The Examiner finds that the Union's committee was authorized by the local membership to negotiate a collective bar- gaining agreement and to agree to its terms for the Union without prior approval by the local, if the committee "saw fit" to do so. He also credits the denials by the General Counsel 's witnesses that Powley or any committee member had said , in effect, that such approval was a prerequisite to agreement by the Union , and credits Powley's explanation of what he did say. w Although the Act stipulates no requirements for the authority of those engaged, as representatives, in collective bargaining negotiations, "the character and powers of the person designated by the employer as the negotiating agent are yet a factor which should be taken into consideration in order to decide whether the employer's effort to negotiate was really made in good faith" (Great Southern Trucking Co. v. X. L. R. B., 127 F. (2d) 180 (C. A. 4), certiorari denied, 317 U. S. 652. 61 See the testimony of Bellow, Powley, Bennett, and -Mrs. Spiceland on the General Counsel' s case in chief. DEENA ARTWARE, INCORPORATED 761 the employees' committee. It is thus not surprising that Bellew finally felt constrained to appeal to Weiner through Flegal, and the request Made of Weiner and his response to it are evidence that effective bargaining had been placed beyond the reach of both committees by the Respondent. From the undisputed context of Weiner's statements to Flegal, as well as the methods used by the management committee to parry and deflect the employees' proposals on impor- tant issues, it would appear that the Respondent did not use its committee as a channel for bargaining, but rather as a barrier to it. That this, in final result, was the role the Respondent's representatives actually played is demonstrated by their ready affirmation of their authority, when it served the Company's con- venience or necessity, and their emphasis upon the need for Weiner's approval when it suited the Respondent's need to deflect pressure from the Union for agreement. The Examiner finds that the Respondent did *not confer effective authority upon its committee to negotiate in good faith with the Union concerning wages and other conditions of employment involved in the Union's proposal.` The Respondent points out that its meetings with the Union's committee in- volved extended discussions, that the parties reached agreement on certain ques- tions, and that it made counterproposals on some of the disputed issues. These are, of course, circumstances to be considered in measuring the good faith of the parties.°3 However, discussions are without meaning if the mind of one of the parties is "hermetically sealed" ' to the viewpoint of the other on the vital issues in dispute, and the points of agreement and counterproposals must be measured, not as absolute indicia of motive, but by the "whole congeries of facts"' revealed by the record. Thus, while agreement was -reached " on the °' See Great Southern Trucking Co. v. N. L. R. B., 127 F. (2d) 180 (C. A. 4), certiorari denied. 317 U. S. 652. Matter of Bnnrgie l7inegar Co., 71 N. L. R. B. 829 ; Matter of Repub- lican Publishing Co., 73 N. L. R. B. 1085; Matter of Pool Jiffy. Co., 70 N. L. R. B. 540; Matter of Martin Bros. Box Co., 35 N. L. It. B. 217, enforced, 130 F. (2d) 202 (C. A. 7), certiorari denied, 317 U. S. 660. 63 Matter of Leybro Manufacturing Company, 27 N. L. It. B. 786 ; Kentucky Tennessee Clay Co., 49 N. L. R. B. 252, modified on other grounds by consent and enforced, 7 L. R. R. Al. 657 (C. A. 3). 64 Great Southern- Trucking Company v. N. L. R. B., 127 F. (2d) 180, 186 (C. A. 4), cer- tiorari denied 317 U. S. 652. See also N. L. R. B. v. Montgomery Ward and. Co., 133 F. (2d) 676 (C. A. 9) ; N. L. R. B. v. George P. Pilling and Son Co., 119 F. (2d) 32 (C. A. 3) ; N. L. R. B. v. American Creosoting Co., 139 F. (2d) 193 (C. A. 6), certiorari denied 327. U. S. 797. 65 Great Southern Trucking Company v. N. L. R. B., supra. 66 Aside from the Union's proposed agreement, the record shows that during the,negotia- tions, Tames Coleman, the representative of the Kiln Department on the employees' coin- mittee, proposed a list of requests peculiar to the kiln'enmployees. Meriwether granted some of these and rejected others. The only kiln request of any consequence concurred in was for the provision of a helper on the large kiln (as the record indicates the Kiln Depart- ment already employed assistants, it is not clear whether Colemnan' s request was for a guarantee of the existing practice or for the employment of an additional helper). Aside from that request, the proposals made by Coleman and concurred in by Meriwether relate either to grievances of a minor nature, such as avoidance of unjust criticism for misunder- stood or improperly given orders, etc., or to such matters of standard personnel procedure as the existence of a first aid kit and it suggestion box and the furnishing of work gloves (which, apparently, had formerly been the Respondent's custom). In the main, the accepted requests look variously toward the improvement of morale and efficiency and are as much for the employer's benefit as that of the employees. Coleman's requests have little, If any, relation to the basic subject of the negotiations, the proposed contract. Measured against the evidence of the Itespondent's conduct preceding and during the negotiations, the Examiner has been unable to attach any substantial weight to the Respondent 's response to Coleman's requests. That response does not overcome the fundamental evidence of bad faith in its consideration of such vital questions as wages and related issues. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD questions of the Union's recognition (which was not a bargainable issue in view of the election ,84 a seniority provision, salary payment each week , payment for cer- tain specified holidays, and payment for 4 hours if an employee reports for work and none is available, it is plain that whatever attitude the Respondent's com- mittee displayed with respect to these matters, it did not extend to the "marrow" ° of the Union's proposal. Plainly, the areas of agreement (if they may be consid- ered such in the light of Weiner's disregard of his committee and Mrs. Hendren's testimony) did not touch matters which were of major concern to both parties, and, as to these, the record demonstrates a design by the Respondent to deflect the Union's efforts to come to grips with the Company over the questions at issue 80 The Respondent adduced evidence of counterproposals on three of the disputed issues : vacations, wages, and union security.'* The proof contributes nothing to 67 McQuay-Norris Co. v. N. L. R. B., 116 F. (2d) 748 (C. A. 7), certiorari denied, 313 U. S. 565 ; Matter of Sherwin-Williams Co., 34 N. L. It. B. 651, enforced 130 F. (2d) 255 (C. A. 3) ; Matter of H. McLachlan and Co., 45 N. L. R. B. 111.3. 66 Matter of Twin City Milk Producers Association.. 61 N. L. R. B. 69. 6D The issues remaining in dispute, together with those agreed upon cover almost all of the union proposal, but leave open the question of what disposition was made of several items in the proposed agreement to which little or no specific reference was made at the hearing. The record with respect to their disposition is not clear. In the main, they relate to such matters as sanitary rest and locker rooms and safety devices (subjects often covered by State law) ; to grievance procedure ; and to time and one-half for Saturday and Sunday work and double time for work on the seventh day. Bellew's emphasis on the disputed issues would leave the impression that some agreement had been reached on such matters. The seventh day and week-end premium pay provisions are included in Article 2 of the Union's proposal which also includes the provision for daily overtime (in dispute) and paid holidays (agreed upon). Mrs. Henson at one point testified that "part of that article (2) was agreed on" ; at another point she said that all of the article had been agreed to except the provision for daily overtime. The provision for time and one-half for Saturday and Sunday work, except for kiln men, has an academic aspect because such work in the plant schedule usually occurred after 40 hours and, in such circumstances, was compensable at time and one-half under the Fair Labor Standards Act. Moreover, the plant was closed (except for the kilns) on Sunday and, after the election, it was also closed on Saturday. Substantially, the only people to be affected by provisions of week-end and seventh day premium pay were the kiln men. l ennett's testimony indicated that no agreement for premium pay was reached, because of difficulties presented by the hours worked by the kiln men. Coleman testified that in making certain proposals for the kiln men he said they would waive such premium pay if they could retain their shift schedule, but it is not clear whether he meant waive the request for it or forego an agreement already reached. He stated that the Company rejected his request, Mrs. Henson stating she "could work out a shift that would cut us down to 40 hours." A possible implication of his testimony is that the kiln shift was in dispute because of the request for premium pay, not only for daily overtime, but the other types as well. Meriwether testified that the company representa- tives had worked out three proposals for the kiln hours, that these were discussed, but that no agreement was reached, thus raising the same question as Coleman's and Mrs. Henson's testimony. The Examiner believes that the record with respect to the items mentioned is too obscure to warrant a finding one way or another respecting the question whether they were agreed to. In either event, it should be observed that, with the possible exception of the grievance procedure, the items involved are either minor or academic with respect to all but a few of the employees. The status of the provisions involved has no significant bearing on the Company's attitude toward the "marrow" of the contract, particularly as, according to the credited testimony, no matter what the Respondent's committee agreed to, Weiner "might take some of it- out" when the product of both com- mittees reached him. 40 At the meeting of April 16, it was agreed that consideration of the Union's proposal on union security would be deferred until an election could be held under the Act, to determine whether the employees desired a union shop. The election was held on April 23 with the result that a majority of the employees voted for a union shop. According to Bellew, the Union renewed its union-shop proposal at the April 29 meeting, offering to waive its request for a dues check-off, and repeated its proposal at a subsequent meeting. The Re- DEENA ARTWARE, INCORPORATED 763 its claim of good faith. In fact, the credible proof bearing on the counterproposals on vacations and wages supports the conclusion that it did not bargain in good faith. The Union's vacation proposal provided for one week's vacation for employees with a minimum of six months of service, and two weeks for those who had worked one year or more. Prior to the election, the Respondent had voluntarily adopted and followed the identical standards proposed by the Union. The Company's counterproposal which was made at the fifth meeting (April 29) contained a provision for one week's vacation for those serving a minimum of one year, and two weeks for employees with a minimum of five years, provided the employee worked at least 1,640 hours in the preceding year. The Union rejected the coun- terproposal on the ground that the Company's policy 41 already in effect was more liberal. According to Mrs. Hendren, the Union asserted, and the management denied, that the purpose of the counterproposal was to withdraw an existing benefit "because of the Union activities." The purported counterproposal on wages, as read into the record by Mrs. Hen- dren, is a detailed break-down of graduated scales for each of 14 departments covering the slightly more than 100 employees.'2 Without setting forth the details of the proposal, it will suffice to point out that, as read by Mrs. Hendren, the scales for women start at 55 cents per hour and graduate to 75 cents at the end of nine months, and those for men, depending upon the department, variously begin at 55, 60 and 65 cents per hour and gradually reach 85, 95 cents and $1.00 at the end of nine months or a year, as the case may be." Provision is made in the proposal for advancement of the effective date of an applicable rate on the basis of merit, but without prior consultation with the Union. The proposal was purportedly prepared on April 30 and, according to the Respondent, was either read to the Union's committee by Meriwether or sum- marized by him at the meeting held on that date. No copy was either prepared for or made available to the Union. Members of the Union's committee testified that the proposal, as read into the record, was never made to the Union. Almost all of those interrogated on the spondent rejected the proposal. At the meeting on May 6, the Respondent's committee proposed a maintenance of membership clause in lieu of a union-shop provision. According to Mrs. Henson, the Union agreed to accept such a proposal provided the Company agreed to a dues check-off for the Union's members, but the Respondent rejected the condition. Bellew, Mrs. Henson testified, then proposed a check-off in the event that all the employees joined the Union, but the Company rejected that proposal. No agreement was ever reached on any union security proposal. 11 Members of the management committee denied that the vacation practice already in effect constituted a "policy," asserting that the Respondent had operated the Paducah plant for less than 3 years which, they claimed, was too short a time for the existence of a "policy." However, Weiner, in a statement to a Paducah newspaper on July 22, 1948, expressing criticism of the Union and explaining his motives for selecting another commu- nity for an enlargement of the Company's operations, asserted that the Paducah employees "got one-week vacations after six months' service and two weeks after a year's." Whether termed a "policy" or not, the fact is that the practice already adopted and followed by the Respondent was the one proposed by the Union for inclusion in an agreement. Moreover, the sense of Weiner's statement is that the benefits, including vacations, outlined there were extended to the employees as a matter of management policy. 32 Actually, upon analysis, the scales set forth in the schedule read by Mrs. Hendren are identical for many of the departments. For example, all women employees, covering five departments, receive the same rates, and five other departments, consisting of male employees, are given identical scales. 93 As read by Mrs. Hendren, only janitors were affected by the 85-cent, and only kiln men by the $1.00, maxima. All other males were to receive a maximum of 95 cents after the applicable specified period of service. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD subject" testified that a proposal was orally made to their committee and that the maximum level it provided for any employees was 75 cents per hour (with the-exception, according to Powley and Coleman, of kiln men who were to receive an additional 5 cents) and that such maximum was to be reached at the end of 18 months. Whether the counterproposal was the one described by Mrs. Hendren, or that testified to by the employees, the Union rejected the proposal, some of its com- mittee members pointing out that it was not an increase and that it would "affect only new employees that they would hire in the future" (Powley's testi- mony). The evidence establishes that the minimum starting rates provided by Mrs. Hendren's version were the same as those already in effect in the plant, and that with one exception (Mrs. Spiceland), all of the Union's committee members were then receiving at least the maximum levels the Company's alleged proposal set forth. Even under the terms of Mrs. Hendren's proposal, it did not represent a general increase for the employees," operating at best only'to advance the effective date of a rate applicable to a given employee. Mrs. Henson advanced the view at the hearing that on an "average" in the past it "had been over a year before you'd reach the top rate, even as high as 18 months . . . This way when you'd been in the employment of the Company nine months, you'd be making the top rate." It is plain that if the employees' version of the proposal, particularly with respect to the 18-month effective date for the maximum scale, is correct it was without meaning to any of the plant's employees ; and that even if Mrs. Hendren's version is to be credited, it could prove of value to only a limited number of the personnel, if those on the committee constituted a repre- sentative cross-section of all the employees. (The Respondent presented no evi- dence, although both Mrs. Hendren and Mrs. Henson, the personnel manager and payroll clerk, respectively, were present throughout the hearing, as to the numbers of employees, if any, who would have been affected by its purported proposal.) There is a basic contradiction concerning the proposal, and the question is presented whether it was ever made either in the form or the substance of the material read into the record. The evidence on the question is confused and contradictory. The version of each witness as to the terms of the Respondent's proposal, whatever it was, varies from that of every other, and none, including that of Mrs. Henson who allegedly participated in its preparation with Mrs. R° See testimony of Powley. Bennett, De Priest, Coleman, Richards and Mrs. Spiceland. Bellew testified as to the 75-cent level, but not as to the period of service necessary to earn it. Another union committee member, Mrs. Gertrude Dowdy, stated she did not pay any attention to the proposal as a whole since she felt she was on the committee to look after the interests of the employees in her own department (decorating), and as to that, she remembered the starting rate to be 55 cents with a maximum of 75 and that no time limit was set for her department. Venice Watson, a committee member, testified she could not recall any wage proposal by the Respondent. There is some suggestion in the record by the Respondent's counsel in cross-examining Mrs. Watson that she was absent from the April 30 meeting because she was busy moving her home. She stated that she had kept no notes of the meetings and could not remember whether she had been absent on April 30. 75 In response to a question on cross-examination , Mrs. Henson was "sure" that the Company's proposal represented a general increase, but her certainty is unreliable since, among other things, her version of the proposal manifested uncertainty as to its terms, differing in at least one basic respect from Mrs. Hendren 's (the length of service neces- sary for employees to attain the top level ). Moreover, she agreed that none of the com- mittee members would have benefited by the proposal , although she stated at another point that "there night have been one or two of the girls" (on the committee ) who had not "been there long enough to have made 75 cents." DEENA ARTWARE, INCORPORATED 765 Hendren, agrees with the version read into the record by the latter. There are manifest variances concerning the terms of the counterproposal in the testimony of the General Counsel's witnesses, much of it relating to the intermediate effective dates of the pay levels, although there are differences at other points as well.75 In resolving the basic credibility issue, the Examiner has concluded that the variances among the employees as to details of the counterproposal are not of controlling significance on the question of credibility. They had no hand in its preparation ; no copy was ever given to them, they had no practical means of becoming fully familiar with it, and they testified to its terms about eight months after it had been discussed at a single meeting. On the other hand, elements are present in the Respondent's evidence on the subject which place the stamp of unreliability on its claim that the proposal made was the one testified to by Mrs. Hendren. It is strange that, with respect to so important a question, no copies of the proposal were made available to the Union, particularly in view of its detailed composition. The testimony of Mrs. Hendren and Mrs. Henson suggests some justification for this circumstance. Ac- cording to them, only one copy (Mrs. Hendren said one or two) was prepared in pencil on the morning of the meeting (it was "rather hard to type something like" the proposal, Mrs. Hendren testified). However, it is difficult to believe that, if the Respondent's proposal had any meaning, it had not been under con- sideration for some time (the Union's wage proposal had been made two weeks earlier). In ordinary circumstances, an authentic document of the type involved would not be prepared in such haste, and persons negotiating in good faith would probably anticipate the need for affording all concerned an opportunity to give such an offer their considered judgment and, to that end, would make copies available. The document does not appear at any time to have left the hands of the Respondent's committee, nor was it offered to the Union's committee for inspection or for the purpose of making extracts from it. But none of the indi- cated circumstances, standing alone, would be of controlling significance, for persons not infrequently deviate from normal practices and do not thereby demonstrate bad faith. However, the factors mentioned above are coupled in the evidence with certain contradictions in the Respondent's testimony which together, considered in the light of the demeanor of its witnesses, have led the Examiner to conclude that the Respondent's evidence with respect to its alleged proposal has a devious character and that, as read into the record by Mrs. Hendren, it was not the proposal actually made to the employees. 16 Bellew testified that the proposal called for 50- and 55-cent minima for women and men, respectively, and that these were 5 cents above the starting rates then in effect. According to Mrs. Henson, however, the rates for beginners already in effect were 55 cents (women), 60 cents (men except in the kiln) and 65 cents (kiln men) and those were the minima specified in the Company's alleged proposal. Mrs. Spiceland, Richards, De Priest, and Coleman did not testify that the Company's proposal contained separate starting rates for men and women. Bellew, Bennett, and Powley stated it did. Mrs. Spiceland and Do Priest stated the offer contained a starting rate of 55 cents ; Richards said it was 50 cents ; and Coleman that it was "50, 55 cents an hoar, something like that." Powley and Bennett testified the starting rate offered was 55 cents for women and 60 cents for men (with a nickel more for kiln men, according to Powley). Bellew "believe(d)" kiln men were not included in the proposal; Bennett could not remember whether they were ; Powley (who used contemporaneously made notes to refresh his memory) stated that kiln men would receive 5 cents above the male scale ; Coleman testified that they would receive 5 cents above the 75-cent maximum specified for other employees (it is not clear whether lie also meant they would receive 5 cents above the scale during the intermediate periods as well) ; De Priest indicated that kiln men were included in the proposal without men- tioning a separate rate for them ; and Mrs. Spiceland and Richards made no separate reference to the kiln employees. 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both Mrs. Hendren and Mrs. Henson worked on the alleged proposal, and it is reasonable to expect that they would be familiar with its terms, and, since it was their work, the occasion for its submission and the surrounding circum- stances should have been reasonably clear in their recollection. After stating, without qualification, on direct examination that the wage schedule she read into. the record had been proposed to the Union, Mrs. Hendren asserted, under cross-examination, that Meriwether had not "read all of it" because the em- ployees "wouldn't let him." Then she asserted that she did not "believe he fin- ished" and that she did not "remember whether he finished reading" it after a given point. Thus, it is apparent that, to an extent impossible to determine from the record, according to Mrs. Hendren, whatever document Meriwether had was not made fully known to the committee. Meriwether's testimony throws no light on the subject, for he made only a passing reference on his direct examination to the proposal, affirming, in effect that what Mrs. Hendren had placed in the record had been "outlined" to the employees. Mrs. Henson, on the other hand, testified that Meriwether "just read it (the proposal) completely off" and gave no intimation, express or otherwise, that anyone interrupted Meriwether or that he did not state the'Company's proposal in full. Whatever Mrs. Hendron's pur- pose was in asserting an unsupported claim of disorderly interruption of Meri- wether, it contributed to the substantial doubt which the Examiner derived from other aspects of the evidence that the purported proposal had been made to the Union. At least of equal significance is a contradiction between Mrs. Hendren's testimony and that of Mrs. Henson as to the effective date of the maximum level for male employees. Under the proposal as related by Mrs. Hendren, at least a substantial number of the male employees, and probably the greater portion, including the casters were to reach their maximum at the end of one year ; yet, Mrs. Henson testified that the casters were to reach their maximum in nine months, and left the impression with the Examiner that under her conception of the Company's offer all of the employees, male and female alike, were to reach their top levels at the end of that period. Against the background of the Respondent's failure to make concrete evidence of its proposal physically available to the Union, its evidence bearing on its alleged offer sounded unconvincing to the Examiner, as did Mrs. Hendren's denial that there was any reference to a period of 18 months as an effective date for the maximum scales in the Respondent's proposal d The Examiner does not credit the testimony that the proposal, as read into the record, was in fact made by the Respondent. He credits the testimony given by employees that the Respondent made a proposal which contained provision for maximum rates to be reached at the end of 18 months and provided for merit increases in the Company's discretion. In reaching this conclusion, the Examiner has borne in mind the variances in the testimony of the employees as to the details of the Company's offer, but he has also taken into account the demeanor of all of the witnesses and his estimate of their reliability and interest. As indicated above, in the light of the record as a whole, the Examiner does not regard the manifest variances in the testimony of the employees, with respect to details of the Company's proposal, as a decisive factor in appraising their credibility or in determining the substance of the offer actually made by the Respondent. Unanimity of recollection among so many 'n The Examiner asked Mrs. Hendren whether there had been "any reference at all during that meeting or a subsequent meeting" to 18 months of employment before the employees could reach the top scale (excluding a merit increase). Mrs. Hendren responded: "that was never discussed anything about that, eighteen months, that I remember of." DEENA ARTWARE, INCORPORATED 767 persons on all details of such a subject would be surprising after the passage of so long a time. Powley, who used notes contemporaneously made at the meeting to refresh his recollection, as well as to correct his testimony, impressed the Examiner as the most reliable witness on the subject of the counterproposal. The undersigned credits Powley's testimony and finds that the Respondent's proposal provided for a starting rate of 55 cents for women, 60 cents for men (except kiln men), and 65 cents for kiln men; that employees in each group would receive a 5-cent increase after a month of employment; another such increase at the end of 4 months; and 70 cents, 75 cents, and SO cents, for the three groups respectively, at the end of 1S months. Under the credible evidence, the vacation and wage counterproposals were not a manifestation of the Respondent's good faith; if anything, they are indicia to the contrary. The vacation offer was substantially less than the benefit the employees already enjoyed. Its acceptance by the Union could only demonstrate for the employees that the organization was a handicap to them and thus serve as a discouragement to their right of self-organization. Placed against a back- ground of the emphasis Weiner placed, both. in his statements to the employees and in the press, on the benefits he had previously extended to the employees, and of the post-election reprisals upon which he embarked, it is a legitimate inference that the Respondent was quite aware of the probable effect that accept- ance of such a proposal would have on the efficacy of the Union in the eyes of the employees, and that, as a practical matter, the organization could not accept it. It is proper to assume that the management knew that which common sense would indicate, that no labor organization can long survive in an establishment if membership in the former results in the extinction of benefits already possessed by the employees involved. Similarly, the Respondent's wage proposal was without substantial value oy meaning to the employees. Both counterproposals offered the employees shadow rather than substance and fitted the pattern of the Respondent's design, made manifest by the other evidence, to parry and deflect the Union's efforts to secure some concrete results from its major proposals. With respect to the counterproposals, it may be said that, instead of pursuing a devious course, the Respondent "was required to meet its employees with an open mind, and, if it was unwilling to do more than maintain its present status, to say so, and to express a willingness to have that as the agreement between them" (N. L. R. B. v. Express Publishing Co., 111 F. (2d) 588 (C. A. 5) reversed on other grounds, 312 U. S. 426). This obligation the Respondent did not fulfill. Finally, one other feature of the evidence deserves mention. Weiner-did not testify at the hearing, nor was his absence explained. Appropriate inferences have been drawn from his failure to testify with respect to the conduct attributed to him by the General Counsel's witnesses, as well as the statements and attitude imputed to him by Flegal." Moreover, Weiner was plainly the source of such authority as the Respondent's committee possessed. In the final analysis, its role was to execute Weiner's intentions. As he had failed to respond to Flegal's request that he add the weight of managerial responsibility to the negotiations," o did lie fail to submit for examination his personal version of the scope and 11N. L. R. B . V. Ohio Calcium Co., 133 F. ( 2d) 721 ( C. A. 6) ; Matter of Banner Slipper Co., 31 N. L. R. B. 621{ 8 L. R. It. M. 151. 79 It may be observed that Flegal gave his testimony on the second day of the hearing. There were 13 additional days of hearing which with intervening adjournments were spread out for a month . There was ample opportunity for Weiner to appear and give his version of his conversation with Flegal or testify with respect to any other relevant facts in the proceeding. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purpose of the committee's authority. His unexplained failure to do so withheld from the Examiner an opportunity to make such additional appraisal of the Respondent's motives and intentions as the presence of such a witness would have afforded. Based upon the record as a whole and his observation of the witnesses, the Examiner finds that the Respondent, although requested to do so by the Union as the duly authorized representative of the employees in an appropriate unit at the Company's Paducah plant,i°n failed and refused to bargain in good faith with the Union concerning the wages, rates of pay, and other conditions of employment of the employees 80 C. The strike and the Respondent's alleged discharge of, and refusal to reinstate, the striking employees At the meeting of April 30, Bellew suggested that the parties seek the aid of the Conciliation Service in the negotiations, stating that he had already written to that agency. Meriweather proposed another meeting without the Conciliation Service, and both committees agreed that if the agency communicated with one group (presumably about arranging a meeting) that committee would notify the other. Thereafter, the negotiators met again on May 6 and 7 and discussed all of the issues outstanding, but with no better results than those previously outlined herein. At the last meeting, according to Bellew's uncontradicted and credited testimony, he pointed out that the negotiations were not "getting any- where." It was thereupon agreed that the next meeting would be arranged by the Conciliation Service. That evening, the Union's committee held a meeting, attended by most of the committee members and several of the Respondent's employees who belonged to the Union but were.not on the committee. The participants voted to call a strike at the plant because they felt that they had "gone as far as we can get 'D' On July 14. 1.948. the Union wrote the Respondent a letter (G. C. 8) requesting a resumption of bargaining negotiations. The Company responded through counsel on July 27 (G. C. 9, in a letter to the Union's attorney, to the effect that the issues pending before the Courts and the Board "should be disposed of before any further steps are taken," but that the letter was "nothing more than an acknowledgment," and that it was "not to be interpreted as an indication of the course we will advise with reference to the (Union's) request." Giving to the letter its literal meaning as no more than an "acknowledgment" of the Union's request for collective bargaining, the construction to be placed on the status of the request is that the Respondent has never'nnade an effective response to it. It was under an obligation to do so and not merely to send an "acknowledgment" of its receipt. In the light of the findings made in this report, the Respondent's failure to respond concretely to the Union's request, as well as the Company's silence thereon after its attorney's letter of July 27, must be regarded as a refusal to bargain, and the Exam- iner so finds it to be. 80 Subdivisions d and e of Paragraph 6 of the complaint respectively allege that the Respondent manifested its bad faith by "failing and refusing to bargain concerning the application of disciplinary rules to all of the employees" in the unit, and by "attempting to bargain for different disciplinary rules as between employees on the basis of member- ship or nonmembership in the Union." The General Counsel adduced evidence that, during discussion of disciplinary rules, members of the Respondent's committee made state- uments to the general effect that such rules should be set up for union members and that the Respondent would handle nonmembers as it saw fit. The members of the manage- ment committee denied making the remarks respectively attributed to them. In view of the basic finding that the Respondent has failed to bargain in good faith concerning wages and other conditions of employment , a finding on the allegations of subdivisions d and e of Paragraph 6 is unnecessary, particularly as the order to be recommended herein will provide that the Respondent bargain with the Union uoncerning wages and other condi- tions of employment, and the Union may then make such proposals to the Respondent as may be appropriate. DEENA ARTWARE, INCORPORATED 769 in negotiations," but it was decided to give the "Conciliation Service a chance ( first ) to help us , if it was possible to do so" (Bellew 's testimony). A conciliation commissioner , Garth Ferguson of Cincinnati , notified both the Union and the Respondent that a meeting would be held on May 14, at the office of the Company 's attorney in Paducah .81 Because of the unavailability of the attorney on May 14, Ferguson postponed the meeting to May 26 and notified both the Union and the Respondent of the change in dates. On May 24, Ferguson phoned Meriwether and told him that he could not keep the appointment for May 26 and that lie wished to change it to May 28. Meri- wether agreed and inquired whether the commissioner had notified Bellew of the change . Ferguson responded that "he had not been able to get in touch with ( Bellew ) as yet" ( Mrs. Hendren 's testimony ), but that he had left a notice for him at the Ritz Hotel in Paducah .82 Sometime before May 26, Ferguson left a message at the Ritz for Bellew , but the Union's representative did not receive it until May 27. On May 26, Bellew and several members of the Union 's committee ( the others remained on the sidewalk in front of the building ) appeared at the attorney's office at the appointed time , but were informed by an office clerk that the meeting had been postponed without mentioning who had postponed it. No other (late was mentioned , nor was anything else said by the clerk. 83 Bellew reported the development to the other commitee members . The committee, exercising author- ity previously vested in it by the membership of the local,84 decided to call a strike at the plant at 2 o'clock that afternoon . The committee proceeded to the plant and , during the lunch-hour , notified the employees of the decision to strike. Bellew also delegated Bill Girten , an employee and a member of the Union, to inform the management of the plan to strike , so that appropriate steps could be taken to protect the kilns. Girten told Meriwether and Mrs . Hendren about the Union 's plans. Meri- wether asked him for the reason for the strike , and Girten responded that "the union was not notified of the change of date of the meeting with the conciliator" and that Bellew had driven from his home at Olive Hill only to find that the meeting had been postponed . Mrs. Hendren then told Girten that the Company was not responsible for the postponement , that Ferguson had requested it, and that the conciliator, in response to Meriwether 's inquiry whether Bellew had 61 As the Union had indicated that it expected to have its vice president at the meeting, the Respondent's committee had requested permission to have the firm's attorney at the. conference. The Union gave its assent. sz Bellew lived in Olive Hill, Kentucky, a community at some distance from Paducah, and had stayed at the Ritz Hotel from time to time. Apparently Ferguson was familiar with that fact, although he had previously communicated with Bellew at his home. 83 The clerk was not produced by the Respondent. Bellew's testimony' concerning the events in the office was not controverted, and the Examiner credits it. 84 The Respondent's brief intimates that the committee's action was unauthorized, because there was "no quorum (of the Union membership) present," and the "local of this Union (did not vote) for a strike." It should be observed that before the negotiations began, at a meeting of the local attended by substantially the entire membership, the local vested in the committee "power to do as they deemed necessary until the completion and signing of the contract" (Bellew's testimony; see, also, evidence given by Powley). But wholly aside from the uncontroverted evidence of the committee's authority,' the significance of the Respondent's point does not appear. The decisive fact is that substantially the entire membership of the local responded to the committee 's call for a strike and ceased their work. The concerted activity under consideration is the cessation of work by 66 employees and not the machinery of self-organization which is the employees' province under their statutory guarantees. 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD been notified, had undertaken to leave word for the Union's representative at the Ritz Hotel. According to Mrs. Hendren, Girten then stated that "the Union was getting the run-around, and didn't like it, and wanted to find out who was to blame" and that the strike would begin at 2 o'clock se Fifty-seven employees responded to the committee's strike call and left their work and the plant at 2 o'clock. Within the next day or two, they were joined by nine other employees who apparently were not at work that afternoon. Those on strike constituted substantially the entire membership of the local. Picketing activities (to be described in greater detail below) commenced shortly after the walkout. The next morning (May 27) Ferguson phoned Bellew and told him about the message postponing the meeting, which the conciliator had left for him at the Ritz Hotel. Ferguson also informel Bellew that lie had arranged a meeting for the next day at the Cobb Hotel in Paducah. On the 27th, the Union also requested a Paducah attorney, A. Roy Copeland, who had represented it on other occasions, to seek a meeting with the management or its counsel with a view toward the resumption of negotiations. On May 28, Bellew and Grimes appeared at the time and place designated by Ferguson, but the latter informed them that the Company "had called this meeting off," and that there would be no meeting" (Bellew's testimony). Copeland communicated with the Respondent's counsel on the evening of May 28 and requested a conference with the latter looking to the reopening of negotia- tions. The Company's attorney stated lie would "be glad" to talk to him "as one attorney to another" but that "he was not authorized . . . to meet with any representatives of the Union." At a meeting between Copeland and the Respondent's counsel the next day, the former proposed that negotiations be resumed and that he "would recommend then that the employees return to work." The Company's attorney reiterated his position that he was not authorized to meet with the Union and stated "that the Company took the legal position that they had no employees on strike to negotiate with." Copeland inquired whether that "meant that the employees were discharged," and the Respondent's counsel reiterated its "legal position" stated above. On the same day, the local held a meeting, attended by "practically the whole membership." Bellew informed the employees that "Ferguson had contacted (him) and that it looked like there might be a chance to resume negotiations." Bellew recommended that "they return to work." The membership thereupon took a vote on the matter and it was resolved that they return to work. Bellew and the committee were authorized to inform the management of the action taken at the meeting. Bellew and the committee, accompanied by between 30 and 55 of the striking employees, proceeded directly to the vicinity of the plant. The employees remained across the street from the plant, while Bellew and members of the committee, including Powley and Bennett, crossed to the sidewalk in front of the establishment and sent a message in to Meriwether that they wished to speak to him. Meriwether came out of the plant and Bellew informed him of the membership's vote and that "the people were ready to return to work unconditionally." Accord- ing to the General Counsel's evidence, the plant manager replied that it was his "understanding that the people who came out on the strike at 2 o'clock on May 26 85 Meriwether, Mrs. Hendren and Mrs. Henson testified to the substance of the conversa- tion with Girten as outlined above. Girten was not produced as a. witness by the General Counsel, nor did the latter offer any testimony to controvert the Respondent's account of the conversation. The Examiner finds that it occurred in substance as set forth above. DEENA ARTWARE, INCORPORATED 771 were discharged," but that "everything has been turned over to (the Respondent's counsel), and I'll have to check on that." Meriwether reentered the plant, telephoned the Respondent's counsel, and came out about 5 or 10 minutes later and "repeated it again," (his previous statement)." Evidence was also adduced by the General Counsel that when Meriwether informed the committee of his "understanding" that the striking employees had been "discharged," he also stated that they "would read about it in the evening paper." Meriwether's testimony does not contradict the substance of the account of his conversation with the committee, except that he denies stating that the employees were "discharged," asserting that be said, instead "that we considered them no longer working for us." The Examiner does not credit Meriwether's denial that he informed the committee that the employees were "discharged." His denial and demeanor in expressing it were evasive. Asked by the General Counsel whether he had informed "these people that they were discharged," he responded, "That we considered them no longer working for us ; yes, sir." Interrogating counsel requested a responsive answer of the witness, and Meri- wether then said, "I didn't use the word discharged." The Examiner finds that he did say, in substance, that it was his understanding that the employees were discharged, and made the other statements, in purport or effect, attributed to him by the General Counsel's evidence. It was stipulated that the next day the following appeared in a Paducah news- paper based on "substantially similar statements" made by Mrs. Hendren to a reporter for the paper. Mrs. Kathryn Hendren, public relations official at the Deena Plant, dis- closed Friday (Examiner's note : May 28, the day before Meriwether informed the committee of his "understanding") that payroll checks had been prepared for the 57 employees who left their ;jobs to participate in the strike. The Companv declined at that time to say whether the action meant that the employees were discharged. Mrs. Hendren said Saturday (Examiner's note: the same day Meriwether spoke to the committee), however, that the employees could not be reinstated because, "they are no longer employees of Deena Artware." Mrs. Hendren said the Deena Plant is still turning out lamp bases and other clay products on a limited basis. On June 1, 1948, 61 of the striking employees signed and sent a letter to Meriwether offering to return to work and requesting an answer "whether our offer to return to work is accepted, and if so, when the Company wishes each of us to return to work." The letter drew a response from the Respondent's counsel, dated June 9 and addressed "for convenience" to the attorney representing the Union in W,, proceeding. The substance of the reply was that the Respondent "does not coi....der the signers of the letter or any of them employees of the company." On August 11, 1948, a similar request was signed and sent by four additional employees to Meriwether (seven employees signed the letter, but three of them had signed the previous communication), and was answered by the Respondent's counsel in the form of a letter dated August 23, stating the same position expressed in the letter of June 9. Upon the foregoing evidence, the Respondent contends in its brief that the cessation of work was not a strike ; that the employees "left their work volun- Re The account of the conversation with Meriwether is taken, in the main, from Bellew's testimony, corroborated, in substance, by the testimony of Powley and Bennett, with some slight, but insubstantial, variations. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tarily and without cause" (because of the postponement of the meeting sched- uled for May 26) ; that "they could not be discharged because they were not employees" ; and that the Company was under no obligation to reinstate them.87 .In support of its contention, the Respondent places particular stress on the un- disputed evidence that it leas the conciliator, and not the Respondent, who postponed the meeting, asserting that it was not responsible for his failure to notify the Union, and "that the sole and, only cause of the walk-out was the postponement of the meeting" (emphasis supplied). The evidence establishes, and the Examiner finds, that the conciliator was responsible for the postponement and that the Respondent was not at fault in the failure of the Union to receive notice of the change. It is also found that prior to the commencement of the strike, the Union was not notified that it was the conciliator who was responsible for the postponement ; that, prior to Bellew's arrival at the office of the Respondent' s counsel , the Union was riot notified of the postponement; and that at the time the committee resolved to call the strike, the Union believed in good faith that the Respondent was responsible for the postponement. However, the Examiner does not find that the postponment of the meeting was the "sole and only," cause of the strike. What the Respondent has done to achieve the conclusion it urges upon the Board is to extract a single incident (for which neither it nor the Union was responsible) from the whole preceding Skein of events interlarded over a period of almost 2 months with many acts manifesting it disregard by the Respondent of its statutory obligations to bargain in good faith and to abstain front interference with the employees in the exercise of their statutory guarantees. To accept the Respondent's contention is to ignore Weiner's disparagement of the Union voiced in a setting of threats and reprisals against his employees; his refusal to heed Flegal 's request that lie Supply the negotiations with it firm basis of managerial responsibility; and, more important, the basic fact that the Respondent had manifested to the Union and its membership in the plant a course of conduct designed to depreciate the effectiveness of the organization in the eyes of the employees and to parry and deflect its efforts to bargain concerning the major (and principally financial) aspects of its proposal. Moreover, the Respondent's position also ignores the funda mental fact that after the close of the meeting of May 7, the Union's committee had reached the conclusion that further negotiations would be fruit- less or, as Bellew put it, "we've gone as far as we can get in negotiations," and that they had on May 7 resolved to call a strike, although no date was set because "we would wait and give the Conciliation Service a chance to help us, if it was possible to do so." Significantly, the decision to strike was reached the day after Weiner had rejected Flegal's plea. for must the fact be ignored that at the very inception of the strike, the pickets carried signs, among others, reading, "Nine men want their jobs hack" and "I want a contract," thus demon- strating, if nothing else does, that the employees were on strike for something more than it mere fancied affront to the Union. At most, the Respondent's proof tends to establish that the postponement of the meeting touched off the strike. But within the whole framework of events, its burden extends beyond that. As Judge Learned Hand put it, the Respondent was under an obligation in its proof to "disentangle the consequences for which it (is) chargeable from those from which it is inmuune" (N. L. R. B. v. Rem-ing- 87 The Respondent also contends that certain alleged misconduct by some employees precludes the issuance of an order directing their reinstatement. Evidence bearing on that issue will be discussed below. DEENA ARTWARE, INCORPORATED 773 ton Rand, Inc., 94 F. (2d) 862, 872 (C. A. 2) certiorari denied, 304 U. S. 576). In short, the burden rested upon the Respondent to show that the employees' economic demands and the Respondent's unfair labor practices were not at least contributing causes of the strike.88 "This the Respondent has not done and this we believe it cannot do" (cf. N. L. R. B. v. Stackpole, 105 F. (2d) 167 (C. A. 3), certiorari denied 308 U. S. 605), for "the real causes of a strike are to be found 'in the whole sequence of events"' . . . preceding it, and this motivation is to be determined 'in the light of the cumulative effect of (the employer's) prior tainted labor practices'." (Matter of Brown Ratdi.o Service and Laboratory, 70 N. L. R. B. 476; 1S L. R. R. M. 1381, citing Great Southern Trucking Co. V. N. L. R. B., 127 F. (2d) 180 (C. A. 4), certiorari denied 317 U. S. 652). Moreover, the statute preserves the right to strike and cloaks employees par- ticipating in it with the mantle of protection against discharge or other dis- crimination based upon the concerted activity. Even if one ignores the Respondent's antecedent conduct, the employees had a right to cease their work in concert as a means of securing a collective bargaining agreement and that they did so for that reason, among others, is manifested not only by their efforts to secure an agreement before the strike, but by the picketing signs which appeared almost immediately after the cessation of work. The postponed meet- ing was thus, at best, only the occasion which the employees selected as the time for putting into effect a decision previously reached by their authorized representatives. The selection of that occasion, rather than another, does not diminish their right to cease their employment as a means of securing a contract. The Examiner finds upon an appraisal of the evidence as a whole, rather than of one incident, that the Respondent's unfair labor practices and the employees' economic demands were the root causes of the strike. The Respondent's claim that the employees were not discharged connotes an unrealistic view of the facts. First, it has been found that Meriwether who was vested with complete power to hire and fire (notwithstanding his call to counsel for guidance) used words of discharge in refusing to reinstate the employees. Second, quite aside from the question whether "discharge" was mentioned, when an employer tells employees that they are "no longer working" for the former or that "they are no longer employees," common understanding would attribute to such language, under the evidence here involved, the meaning that the employees were discharged. In unilaterally taking the position that the employees were "no longer working" for the Respondent or "no longer employees," the Company was stating that the employees were discharged just as meaningfully as though its language were expressly couched in terms of a discharge. The Examiner finds that on May 29, Meriwether discharged the 66 employees named in the complaint because they had engaged in a lawful strike, a concerted activity protected by the Act from discrimination. But whether they were discharged is of no significance in the light of the fact that Meriwether refused to reinstate them, which, under the facts, is tantamount to a discriminatory discharge.0° The strike did not ter- minate the employment relation," and when the employees applied, through their spokesman, for reinstatement, the employer was bound to reinstate them. The Examiner finds that on May 29, Meriwether refused to reinstate the 66 employees and that the Respondent thereby discriminated against them in contravention of 88 Cf. N. L. R. B. v. Stackpole, supra; N. L. R. B. v. Barrett Co., 135 F. (2d) 959 (C. A. 7). 89 N. L. R. B. v. Barrett Co., supra. N. L. R. B. v. Mackay Radio and Telegraph Co., 304 U. S. 333 ; home Beneficial Life Insurance Co. Y. N. L. R. B., 159 F. (2d) 280 (C. A. 4) (and cases cited). 91 N. L. R. B. v. Mackay Radio and Telegraph Co., supra. 867351-50-vol. 86-50 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section 8 (a) (3) of the Act. It is also found that the Respondent , acting through its representative , in the letters respectively dated June 9 and August 23, 1948, denied the applications for reinstatement contained in the employees ' letters of June 1 and August 11 , 1948, thereby discriminating against the employees named in the letters of June 1 and August 11 , 1948, in contravention of Section 8 (a) (3) of the Act B' D. The alleged misconduct of the strikers The Respondent's answer contains certain affirmative defenses. First, it con- tends that, in violation of Section 8 (b) (1) of the Act, the 66 strikers and the Union engaged in mass picketing, violence and other unlawful conduct "for the purpose of restraining and coercing" the nonstriking employees "in the exercise of their right not to strike or cease work." Second, the Company asserts that, in violation of Sections 8 (b) (4) and 303 (a) (1), the strikers and the Union "induced the employees" of a contractor, then engaged in erecting an addition to the plant, to strike or concertedly cease work, and that they engaged in a "secondary boycott, forcing and requiring employees" of the contractor "to refuse to work and perform services in the construction" of the addition, all with "the object" and "for the purpose" of "forcing and requiring" the Respondent to bar- gain with the Union.B3 The Respondent does not make wholly clear what effect it wishes the Board to give to the separate defenses. As it filed no charge, the Board is unable to grant any affirmative relief to the Respondent, assuming that the facts would warrant it °' The defenses are clearly not available as a bar to the entry of an 13 As the Examiner has found that the cessation of work was an unfair labor practice strike, as well as one for economic reasons, it is unnecessary to review in detail the evi- dence bearing on the dates when the jobs were filled by other employees. Viewed as an unfair labor practice strike, the Respondent could not lawfully deprive the striking employees of their jobs by hiring replacements. It may be observed in passing that no new employees were hired until after the Respondent had discharged the 66 employees and had rejected their application for reinstatement and that even if their status had been only that of economic strikers,' the Respondent was under an obligation to reinstate them on May 29, inasmuch as their jobs had not as yet been filled. Both the discharge and the refusal of reinstatement were unfair labor practices even if the employees were only economic strikers (Home Beneficial Life Insurance Co. v. N. L. R. B., supra) (N. L. R. B. v. Mackay Radio and Telegraph Co., supra). M The allegations with respect to the construction of the addition summarize the sig- nificant portions of Paragraphs 2 and 3 of the separate defenses. The answer does not specify which of the provisions of Section 8 (b) (4) were allegedly violated. The lan- guage of both Paragraphs 2 and 3 appears to spell out a violation of Section 8 (b) (4) (B). From the fact that the Respondent refers to Section 303 (a) (1) (which paraphrases Section 3 (b) (4) (A)), it may be that the Respondent intended to allege a violation of Section 8 (b) (4) (A) as well, but, if that was intended, the allegations are insufficient, inasmuch as there is no averment that the "object" of the alleged conduct was "forcing or requiring" any one to perform any of the acts set forth in Section 8 (b) (4) (A). In any event, without reference to the question whether a violation of that section is avail- able as a defense in this proceeding, it is enough to point out that the evidence does not establish a violation of Section 8 (b) (4) (A) (nor of any other provision of Section 8 (b) (4) for that matter, to which additional reference will be made below). The same is true with respect to Section 303 (a) (1). Moreover, Section 303 by its terms specifies that the conduct mentioned therein is made unlawful "for the purposes of (that) section only," and the "purposes" are to establish a statutory basis for a civil action in the Federal courts to recover damages resulting from the conduct proscribed in Section 303. See Senate Rcpt. No. 105 on S. 1126 (80th Cong.) pp. 54-55 (dealing with an earlier version of Section 303) and House Conf. Rept. No. 510 on H. R. 3020 (80th Cong.), p. 67. a. See Section 10 (b) of the Act and Section 203.12 of the Board's Rules and Regula- tions, Series 5. Cf. Consumers Power Co. v. N. L. R. B., 113 F. (2d) 38 (C, A. 6). DEENA ARTWARE, INCORPORATED 775 order directing the Respondent to cease and desist from committing violations of the Act,9° since this is not a proceeding to vindicate private rights, but is brought by an agency of the Government in the public interest. In other words, the Respondent may not justify its own misconduct by establishing either that the Union or any of the employees misconducted themselves during the strike. Moreover, Section 8 (b) proscribes conduct only by "a labor organization or its ,agents," and Section 303 only by a "labor organization," and both provisions visualize justiciable relief in proceedings brought against those forbidden to engage in the prohibited conduct," and do not contemplate their interposition as defenses to a proceeding brought by the Government for the vindication of public rights. However, that does not necessarily mean that conduct made unlawful by a provision such as Section 8 (b) (1) when committed by an indi- vidual may not be of such a nature as to warrant a denial of reinstatement to the person who engages in it97 Hence, the real and only issue raised by the affirmative defenses is whether the striking employees engaged in a type of con- duct, whether forbidden by the Act to "a labor organization or its agents" or not, which should preclude the reinstatement of those engaging in such activities. There are other legal features of the defenses and the evidence adduced under them which may require comment below. But first, without assuming that any of the employees' conduct was of such a nature as to warrant a denial of reinstatement or the relevancy of portions of the evidence, a resolution of the facts would appear to be appropriate. In the main, the evidence bearing on the affirmative defenses involves events occurring on May 26 (the first day of the strike)., 27 and 28, and July 13. The material evidence will be evaluated in that order, although appropriate refer- ence will be made as well to events occurring on other days. Some description of the location of the plant and the surrounding area may first be appropriate as an aid to the evaluation of the evidence bearing on the alleged misconduct. The plant is located on the northeast corner of Third and Ohio Streets in Paducah. Its entrance directly faces that corner. Running diagonally from the entrance toward the corner is a concrete walk which extends from the door to the city sidewalk. The walk is about 15 to 20 feet long and slightly over six feet wide. It is the normal and usual approach to the plant entrance. At an acute angle to the walk is a gravel driveway which runs from the entrance to Ohio Street but close to the corner which that street forms with Third. The drive- way is between nine and ten feet wide. It is used principally as an automobile approach to the plant entrance, usually by Meriwether who parks his car there. The door of the plant may be approached from the driveway as well as from the concrete walk and is used by employees for that purpose. To the rear of the establishment, and separated from it by a double set of railroad tracks running along a right of way, is the Company's warehouse which is located near the northwest corner of Second and Ohio Streets. At the time of the strike, the Company was engaged in erecting an addition to its plant fa- cilities. The addition was to be physically joined to the warehouse and was to extend parallel to Second Street in a northerly direction toward Jackson Street. ffi N. L. R. B. v. Fansteel Metallurgical Corporation, 306 U. S. 240; N. L. R. B . v. Brad- ford Dyeing Association, 106 F. ( 2d) 11.9 (C. A. 1) ; McNeely and Price Y. N. L. R. B., 106 F. ( 2d) 878 (C. A. 3) ; N. L. R. B. v. Ohio Calcium Co ., 133 F. ( 2d) 721 (C. A. 6). 0 Matter of Perry Norvell Co., 23 L. It. R. Df. 1061. 97 Matter of Perry Norvell Co., supra, 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD At the time of the strike, work on the addition had progressed as far as the laying of the foundation. At the rear of the plant is a door which has been used by employees as a means of entering the factory.98 The time clock is located near the front door. Em- ployees who entered through the rear in the morning would go to the front portion of the plant, punch in, and then proceed about their work. The rear door faces the tracks and may be approached along the right of way or by cutting across the lot upon, which the Company proposed to erect its addition. 1. The events of May 26 As already noted, the strike began with a walkout of 57 employees at 2 p. in. on May 26. That day was payday, and employees were customarily paid at 3 o'clock. It is undisputed that all but a few of the 57 remained in the vicinity of the plant until Mrs. Henson came out on the sidewalk in front of the establishment with their checks. Bennett, the president of the local, volunteered to help her distribute, the checks and did so to expedite the distribution. Pay- ment was completed some time between 2: 30 and 3 o'clock. The nonstriking employees came out of the plant at about 3: 30 which was quitting time. The Respondent's brief does not make the point, but the import of its testimony was that the 57 employees engaged in mass picketing and coercive conduct when the nonstrikers emerged. According to testimony offered by the Respondent, "all (57) of them" (Meriwether) or the "entire 57" (Mrs. Hendren) were "on the sidewalk in front of the plant" at that time. However, the only persons Meriwether, who was in front of the plant at the time, could remember were Powley ( who was discharged on April 22 and whose reinstatement is not in issue ), Vera Mae Tucker and Elizabeth Boyd . Meriwether also generalized on direct examination that "there was a lot of talking outside the plant and (that) they made remarks to the ( non-striking ) employees," but the only specific "remarks" to which he testified were, "you walk through the line today, but you won't walk through the line tomorrow," which he attributed to Powley, Mrs. Tucker and Mrs. Boyd. All three testified they were present, but denied making the remarks attributed to them. Powley testified that he spoke to a number of the non-strikers and requested them not to return to work during the strike. llirs. Boyd asserted, "all I said was `scabs' or something like that." On cross- examination , Meriwether testified that the 57 employees "seemed to be" present but with respect to any others than those mentioned, he "couldn't be positive." Mrs. Hendren testified, "they (the 57) were in a more or-I don't want to say mess, but they were all together," and that "large numbers of people (were) talking." Her point of observation was a window in her office on the upper floor of the plant. Responding to a question as to what "was said and done by the 57 people or any of them," she stated : "I can't give any specific names ; there was the usual calling of scabs and you're yellow, and we'll see that you don't come to work in the morning, and just the general run that a crowd of people would-" (interrupted). Mrs. Hendren also testified , as did Meriwether, that there were several pickets bearing signs. 98 Meriwether testified that there was a rule against the use of the rear door by employees and that they did not use it. Employees testified that they knew of no such rule, stating in effect that they used the door whenever they wished , some occasionally and others frequently ( see testimony of Richards , Burns . DePriest , Steger , and Reeves ). The door was always open in the summer ( Richards ), and it was also more convenient for employees approaching the plant from that direction to use it in rainy weather. The Examiner does not credit Meriwether 's testimony with respect to the use of the rear door. DEENA ARTWARE, INCORPORATED 777 The testimony given by both Meriwether and Mrs. Hendren as to the number and location of the 57 employees at 3: 30 p. m. strikes an improbable note. It is not that they can be expected to identify every person there, or even a considera- ble number, which makes their account implausible ; rather, it is the fact that they freely testified on direct examination that all or "practically" all of the 57 were there, although it was quite apparent to the Examiner that, at best, the witnesses were guessing. The undersigned concluded from their demeanor and the content of their testimony, as well as from rebuttal evidence adduced by the General Counsel, that the versions advanced by Meriwether and Mrs. Hendren were the product of a contrived formula designed to suggest that all of the 57 employees were involved in a setting of misconduct and significant disorder. The Examiner regards the testimony of Meriwether and Mrs. Hendren, with respect to the events occurring after the distribution of the checks, as unreliable.' Several non-striking employees testified , variously, that the "majority""' or "everyone" "' or "most""' of those who had walked out were in the vicinity of the plant, but did not specify that they were located on the sidewalk in front of the establishment. The Examiner believes that these witnesses gave their best -recollection, but their estimates are manifestly no more than a guess. Moreover, estimates of a "majority" and "most" of the 57 employees may mean any number from 29 to 57, while the witness (Novalee Bannister) who stated that "everyone" was there testified under cross-examination that she does not know whether all of the persons outside the plant were Deena employees and that she "didn't pay any attention to see who was there." One of the nonstrikers, Maxine Rutherford, stated that "they were telling us not to come back in the next day." Asked to particularize, she asserted that Guy Phelps had made a statement to that effect. Then, after stating that she did not remember whether he said anything else, she agreed, in response to a leading question, that someone had said something "about going to jail to keep you out," expressing the belief that Phelps had made the remark, but that she was "not too sure." Phelps denied making any threats at any time, including the specific statement concerning "jail" which Mrs. Rutherford "believe(s)" lie made. The Examiner regards Mrs. Rutherford's testimony attributing the "jail" remark to Phelps as speculative and cannot consider it as probative evidence that he did, in fact, make it. Another nonstriker, Eunice Chapman, stated that Lonnie DePriest, one of the Union's committee who had been discharged on April 22, said to her : "Eunice, I'm telling you as a friend not to come back in the morning because if you do you'll get all hell beaten out of you, because they don't like you anyway." DePriest denied making that statement, asserting that lie had "asked her not to come back to work the next morning." DePriest's testimony on the subject did not impress the Examiner as reliable, while Mrs. Chapman's did, and the undersigned credits the latter. The statement to Mrs. Chapman, however, did not amount to a threat. She agreed that "a lot of them" (strikers) did not '*Mrs. Hendren's testimony, particularly, has elements of conclusion and preconception. as manifested by her statement that the employees made statements which were "just the general run that a crowd of people would" make. It is difficult to separate fact from imagination in such testimony. Lawful requests to observe picket lines and a legitimate, even if not wholly orderly, ambit of expression in a strike setting may often be converted by a preconditioned imagination, through the slight alteration of a phrase, into a climate of unlawful compulsion and misconduct. 100 Maxine Rutherford. 101 Novalee Bannister. 102 Eunice Chapman. 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "think too much" of her . She also stated that she and DePriest were friends, that he "never threatened me in his life ," and that she construed his statement "as (that of ) a friend." From the context of the evidence as a whole, it is evident that DePriest was letting his imagination rule his judgment , as he did on another occasion . The Examiner finds that the statement to Mrs . Chapman did not amount to restraint or coercion within the meaning of the Act . It should also be observed that , inasmuch as he had been discharged on April 22, his reinstatement is not in issue. Novalee Bannister and Rosella Hall left the plant together . Mrs. Bannister testified that Powley asked them "not to come back to work in the morning." Mrs. Hall stated that he said , "Don't cross the picket line in the morning." Both witnesses asserted that he also said he was "warning " them not to cross it. Powley denied making the "warning" statement, asserting that he had walked down the street with Mrs. Hall and had asked her to observe the picket line, "because her husband was working on a Union job, and I didn 't think he'd appreciate it if she did come through it ." In the testimony, "asking" Mrs. Bannister not to return to work and "warning" her not to do so are closely juxtaposed . With respect to both witnesses the Examiner concluded that they - were placing an interpretation on what Powley said rather than quoting him precisely. This connotes no dishonesty on their part ; settings of the type in- volved usually are accompanied by strain and a sense of insecurity on the part of all who participate in them and often correspondingly affect their interpre- tation of what was said and done by others. Powley gave considerable testi- mony at the hearing and was thus under the observation of the Examiner for extended periods. The undersigned gained the impression that he has a sense of responsibility and is a reliable witness. Without impugning the motives of Mrs. Bannister and Mrs. Hall, the Examiner credits his denial and finds that Powley did not make the "warning" statement attributed to him. Leonard Ashby , a nonstriker employed in the warehouse, testified that Wil- liam Brooks, one of the Union's committee who had been discharged on April :22, "just came up to the (warehouse ) door and asked us not to come back across the picket line the next morning." However, when counsel asked him again to state what was said, Ashby quoted Brooks as saying , "Leonard, you and Wes ( another employee ) are not going to cross the picket line tomorrow," to which Ashby said he responded , "Well, I don't know," whereupon, according to the witness , Brooks said , "I warn you not to cross the picket line . It will be safer in the long run." However , on cross-examination , Ashby again de- scribed Brooks as "just ( asking ) us not to cross the picket line." There is a manifest difference between "just asking" and "warning ." What is more im- portant, Ashby gave testimony concerning the role of Powley in the events of the following day (to be described below ) which the Examiner regards as un- true, and not merely unreliable . Moreover , in describing a conversation with some strikers alleged to have occurred on the next clay, Ashby attributed words almost identical to "it will be safer in the long run" to unidentified persons present near, the plant on the 27th. ( The words allegedly used on the 27th were "it would be safer in the long run." ) Although Brooks was not produced as a witness, the foregoing circumstances , as well as the demeanor and general con- text of Ashby's testimony , lead to the conclusion that the witness is too unreliable to warrant the crediting of any significant part of his testimony. Another nonstriker, Mrs. John Oliver , testified that her nephew, Harold E. Medley ; a striker , "grabbed hold of me" and said, "Auntie, you're not going in there in the morning," to which she made response that she was. She later DEENA ARTWARE, INCORPORATED 779 testified that by "grabbed hold" she meant that Medley was angry and that he "took hold of (her) arm." Medley testified that he encountered his aunt that afternoon, took her arm, and asked her if she was going into work the next clay, and that she responded that she intended to do so. Mrs. Oliver impressed the Examiner as a reliable witness, and he credits her testimony, particularly as both she and Medley gave evidence with respect to another incident (to be discussed at a later point) which led the Examiner to conclude that Medley was not a reliable witness. However, Medley's statement to his aunt must be regarded, at most, as an angry remonstrance, rather than as coercive in nature. Anger is not unlawful. Murrell Edwards, foreman of the Glazing Department, asserted that shortly before the walkout occurred, Medley asked him if he was going out (with the strikers) and that he responded in the negative. According to Edwards, Medley then said, "you'd just about as well go out. The ones that don't go out, they're going to come in and throw them out anyhow." Medley entered a denial that he had made such a statement, asserting that all he had done was to ask Edwards to join the walkout. The undersigned credits Edwards' testimony and finds that Medley, in substance, made the statements attributed to him. Here, also, the Examiner finds that Medley's remarks were not coercive. They were not designed to coerce Edwards ; after observation of Medley, the undersigned regards the remarks as no more than the idle talk of a self-appointed verbal desperado.103 Medley's statements are not to be condoned, but the undersigned cannot regard them as either coercive or as the type of conduct warranting a denial of reinstatement. Two other colloquies substantially complete the sum of the Respondent's evidence with respect to May 26. Hazel Wyatt, a nonstriker, testified that Alice Brian, while on picket duty, asked her whether she was "coming back to work in the morning," and that she responded, "Yeah, the boss said 'so." Whereupon, according to Mrs. Wyatt, Miss Brian stated, "Don't, because I hate to see you get hurt." Asserting that, in her picketing, she had followed Bellew's instructions and had "never run into anyone" and never "talked smart," Miss Brian denied making the statement attributed to her, testifying that she had asked the "girls (to) respect our picket line and not come back across in the morning so that we might get to go back to work in the morning, too." Without assuming that the statement attributed to Miss Brian is coercive in nature, it is enough to point out that the Examiner considers Miss Brian a reliable witness and that she impresed him as a person who does not engage in coercive or threatening remarks. The undersigned credits her testimony and not that of Mrs. Wyatt. Mrs. Wyatt also testified that after work on May 26, she and her husband were vistiting a home in the neighborhood of the plant. According to her account, as she came out to her car, Brooks, DePriest and Guy Phelps came over to it and "they said they was going to see that I didn't go back to work." Brooks did not testify. Phelps entered a general denial that he had ever threatened anyone. DePriest specifically denied making such a statement, but gave no circumstantial account of any conversation with Mrs. Wyatt. The Examiner entertains some doubts about the reliability of Mrs. Wyatt, but he has similar doubts about the reliability of both Phelps and DePriest with respect to the incident. Under all of the circumstances, the Examiner is inclined to credit 103 See the comments of the Board on the "dare" incident in Matter of Sunset Line and Twine Co., 79 N . L. R. B. 1487, 23 L. R. R. M. 1001. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mrs. Wyatt's testimony and finds that one or more of. the three individuals mentioned made remarks to her, in substance, of the type attributed to them. The Examiner considers such "blow-hard" statements as "too trivial to be regarded as restraint and coercion" (Matter of Sunset Line and Twine Co., supra) and of insufficient seriousness to warrant a denial of Phelps' rein- statement.104 It is unnecessary to review in detail the evidence of the General Counsel with respect to May 26, particularly as the burden of establishing its affirmative defenses is on the Respondent. In addition to the specific denials noted above, 19 of the employees who walked out testified that they ]eft the plant area either immediately or shortly after they were paid and that they were not in the vicinity when the nonstrikers came out.10j Some testified that they went home, others that they went downtown or had other errands to perform. Some of these are housewives (one, Opal Keeling, stated she had the breakfast dishes to do), and it is reasonable to assume that such individuals had chores to engage them. Their testimony conveyed to the Examiner a sense of the reasonable and probable, and he credits it.10° A fair appraisal of the record as a whole leads to the conclusion that at the time in question an unspecified number, but less than 39 of the 57 employees '10T were present in the general vicinity of the plant; that there was some name- calling such as "scabs"; that there was no interference with ingress into, or egress from, the plant ; that some of the strikers requested some of the non- striking employees to observe the picket line, and that there is no credible evidence that whatever picketing was engaged in was unlawful. In the face of the evidence offered by the Respondent, the Examiner can attach no special significance to proof that an indeterminate number of strikers was present in the vicinity of the plant, nor is he at liberty to speculate as to the number and identity of those present. In any event, the number has no special significance, in the absence of substantial evidence that it served some unlawful purpose, particularly as several of the strikers lived in the vicinity of the plant. With respect to the group as a whole, it is natural that in a community of the size involved, the setting should be a focus for their curiosity and interest. Mrs. Hendren testified that she called the police about 3 o'clock before the employees left for the day. While she (lid not state specifically that they were present at 3: 30, it is unreasonable to assume that they ignored her call. There is no evidence that the police intervened in any fashion to regulate the conduct of the striking employees in the vicinity of the plant on the day in question. The Examiner finds that none of the 66 striking employees engaged in unlawful mass picketing on May 26.108 The Examiner does not condone the remarks made by Phelps and Medley, but they cannot be regarded as restraint or coercion, and, in any event, not as the type of misconduct which would warrant the Board in 104 The reinstatement of Brooks and DePriest is not in issue as they had been discharged on April 22. 105 One witness, Annette Leidicker, testified she did not wait for her check, receiving it the next week by mail. The Respondent presented no evidence to contradict her. 100 The fact that Bennett assisted in the distribution of the checks in order to expedite it suggests the possibility that at least some of the employees wished to be paid as quickly as possible in order to enable them to leave. 107 The state of the record, particularly in the light of the generalizations contained in the Respondent's proof and its burden to establish its contentions, does not warrant a determi- nation as to the number and identity of those present in the plant area, except as to those actually identified. 108 See Matter of Perry Norvell Co., supra. DEENA ARTAVARE, INCORPORATED 781, denying them reinstatement. As to the other 64 striking employees, there is no credible evidence that they engaged in any misconduct. 2. The events of May 27 and 28 The Respondent's allegations of misconduct by strikers on May 27 rest on evi- dence it adduced that some of the strikers called nonstrikers names; that the numbers present impeded access to the plant; that some threatening remarks were made to several nonstrikers;, that there was a scuffle between Powley and a foreman, 1\ lurrell Edwards, and another between Vera Mae Tucker and a non- striker, Rosebud Tyree: and that one of the strikers, Alice Kelley, kicked Eliza- beth Cox, a nonstriker. With the exception of the Kelley-Cox incident and several other occurrences, substantially all of the incidents referred to above are alleged by the Respondent to have occurred at about or shortly before 7 a. m. while non-striking employees were arriving for work. Without pausing to resolve the issues of credibility with respect to the evidence of name-calling 109 it is sufficient to point out that such "vocally expressed resent- ment" (Matter of Sunset Lime and Twine Co., supra) is not only generally re- garded as within the legitimate ambit of strike activity, but is a protected expression of opinion within the meaning of Section 8 (a) of the Act."° With respect to the claim of mass picketing, there is a marked conflict in the evidence concerning the number and location of the striking employees at about 7 a. m. Here, too, the Respondent's proof suffers from a lack of identification of all but a relative few of the striking employees, although it is aided in some degree by the testimony of many of the strikers who were produced as rebuttal witnesses by the General Counsel and testified that they were in the plant's vicinity at that hour. One feature of the scene which should be borne in mind in appraising the Respondent's claim is that about half-dozen policemen, called by the Respondent, were on duty at various points in the immediate vicinity of the plant, including the walk leading to the entrance. None of the police, who arrived at about .6: 30 a. in. and remained on duty throughout the (lay, were produced as witnesses. The estimates given by the numerous witnesses as to the number and location of the striking employees (as a group) at any given time during the (lay must 109 Meriwether 's testimony was that strikers called arriving employees "scabs and dirty names like that" or "worse than that." The only name-caller he identified was Kenneth Johnson who , according to Meriwether , called George Connor "a yellow son-of-a-bitch." Johnson denied using that epithet , stating that he told Conner that , "if you go in, you're a yellow scab." Without identifying any name-callers , Mrs. Henson testified that when she arrived for work , she heard such epithets as "yellow-bellied scab ," and that one person (unidentified ) called her a "scab ," while another (also unidentified ) called her a "liar" and "several vulgar remarks." Mrs. Hendren, who arrived with several employees, asserted that the latter were "called names about being yellow and scabs," although nobody called her "any offensive names." She, too, did not identify any of the alleged name -callers. Maxine Rutherford, a nonstriker, without identifying anyone, testified, "There wasn't anything ( said ) directly" to her that she could "recall," but that there were "booing and jeering and hollering 'scabs' and things like that." Navolee Bannister, ahol:her nonstriker, stated, without contradiction , that when she went to lunch that day Sam Hines called her "a son-of-a-bitch" and Lucille Rudd and Venice Watson called her a "scab" and made kindred remarks . Some employees testified that nothing was said to them as they arrived for work (testimony of Eunice Chapman and Elizabeth Cox). Rosella Hall testified Powley called her a "blond-headed scab" and "yellow" on May 2S. There are other isolated instances of name-calling, such as those mentioned above, which, in the main , are referred to in the body of the report. Significantly, there is no evidence that the police who arrived at the scene at 6 :30 a. in., or shortly thereafter, interfered with any of the alleged name- calling. 110 Matter of Sunset Line and Twine Co.. supra; Matter of Perry Norvell Co., supra. 782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD be regarded as no more than a guess, and a detailed review of the many con- flicting estimates would serve no purpose."' An appraisal of the evidence as a whole leads to the conclusion that from about 6: 30 or 6: 45 a. in. and until some undetermined period after 7 a. in., there were between 30 and 35 striking em- ployees in the general vicinity of the plant; that there were no more than 35 there at any one time ; that the composition of the group changed as striking employees came and left ; that the strikers as a whole were substantially dis- tributed up and down Third and Ohio Streets and at the four corners of the inter- section ; and that, after some initial "confusion," " nine of the strikers picketed with signs , four on Third Street in two-men teams moving up and down their allotted stations along the length of the building, four on Ohio Street in similar fashion, and one on the northeast corner 113 (Evidence that a picket walked past the construction site on Second Street will be considered at another point.) i" Meriwether, who had remained at the plant during the night, testified on direct examination that "around 4: 30 or 5 : 00 o'clock in the morning a crowd began to gather out in front" and that "by 6: 00 o'clock there were approximately 40 people (strikers) there." On cross-examination his estimate of the "crowd " at 5 a. in . was 12 to 15 persons, and of the number at 6 a. in. "25 or 30 people." He also made the improbable statement that the 12 or 15 people observed at 5 o'clock had been there all night, but upon inquiry by the undersigned , he qualified his statement by asserting that "some came there and then they went on and then they were replaced by other people." The only individual of that group whom he could remember was Harry Bennett. Here, too, Mrs. Hendren testified , " I would say practically all of them ( the 57 who had walked out) were there" (apparently "in front of and about the plant entrance") when she arrived for work shortly after 7 o'clock , although she state(] on cross-examination that she could "remember very few of them by name" and "really ( doesn't) remember seeing them ." Mrs. Henson testified that when she arrived at 6 : 45 a. in. "approximately " 40 to 50 (striking) employees (were ) in front of the building. Several nonstrikers estimated the number . Rosebud Tyree estimated that there were about 50 persons ( whether all strikers does not appear) up and clown Third Street," with some in the concrete walk. Maxine Rutherford stated "the biggest majority of 'em were in front of the plant and around the plant." Novalee Bannister did not recall the number as she "didn't pay any attention ." Eunice-Chapman estimated that "practically all of 'em (the 57 )" were "in front of and about the entrance to the plant." Other witnesses were not interrogated on the subject by the Respondent. The witnesses called by the General Counsel ( all but Bellew were striking employees) gave varying estimates of the number of people in the vicinity of the plant at 7 a. in. Their estimates of the number of strikers present ranged from about 20 to 35 (bystanders variously estimated at from "one or two" to "eight or ten" have been excluded from the Examiner' s approximation ). Expressly or by inference , the substance of the testimony of these employees was that the strikers were "scattered" up and down Third and Ohio Streets and about the various corners, including the one adjacent to the concrete walk leading to the plant entrance ( see testimony of Brian , Farley , Branton, Richards , Reeves, Hines, walker, Dykes, Steaks, Hines, Rudd, and Bellew). Bellew testified that between 6 and 7 it. in., ("near seven , I'd say") five or six persons , "part of them strikers" were "scattered around on the walk , talking, " that police were standing close by, and that nobody was "attempting to bar the entrance." 11" Powley testified ( and the Examiner credits him) that the local held a meeting on the evening of May 26 ; that the group "didn't seem to be getting anywhere about who was going to . . . picket" ; that he volunteered to organize the picketing schedule ; and that he called for volunteers , but that as there were not "too many " at the meeting , he told those assembled to report at the site of the plant in the morning, and "we'd work it out there." According to Powley, a picketing schedule was set up the next morning , but there was "some confusion " and "it was around noon before we got it working ( as) it should." 13 See Powley 's testimony for a description of the picketing arrangements. Powley testified that the pickets were instructed "to keep moving and walk all the time and not bunch up." The Examiner credits Powley' s testimony as to the picketing arrangements and instructions . In describing the scene in front of the plant when she arrived, Mrs. Hendren testified , "They were milling around and marching up and clown in front of the plant in what I would say three or four abreast." The Examiner does not know whether the "three or four abreast" refers to or includes the pickets with placards. At a later DEENA ARTWARE, INCORPORATED 783 The number of strikers at the scene is not a controlling factor, particularly as there is no evidence of an organized plan to block the entrance of the plant or the use the force of numbers as an instrument of intimidation . The presence of employees in substantial numbers in a strike setting is not unnatural , especially in a small community and in the early stages of the dispute when the occasion pre- sents some novelty and the strikers are idle. As human nature is constituted, the setting provides a focus for the interest of people , particularly that of those affected. Thus, the presence of the strikers in the vicinity of the plant in any substantial numbers can assume significance only if they behaved unlawfully 11' The record contains no instance of deliberate physical interference by any of the 66 strikers with nou-striking employees engaged in entering or leaving the plant,116 nor is there any credible evidence that the strikers were grouped at any point in substantial numbers or otherwise for the purpose of providing a physical impediment to those seeking to enter or leave the establishment ,'" Mrs. Hendren point, under the interrogation of the Examiner, she stated that there were about eight signs which were carried by pickets walking two abreast and that the pickets were distributed on Third and Ohio Streets in numbers which "varied." The Examiner attaches little weight to her estimates of the number "marching" and "milling," as those terms are among the semantic descriptions which characterized various portions of her testimony and contributed to the conclusion that, with respect to at least certain parts of her evidence, she was not a reliable witness. In any event, Mrs. Hendren identified none of those "marching" and "milling" "three or four abreast" when she arrived ; she testified that no one blocked her path, and there is no evidence that any of the unidentified people she described interfered with persons going into, or coming out of, the plant. 114 Matter of Perm-Norvell, supra. 1' The Respondent's version of the Tucker-Tyree and Powley-Edwards scuffles suggests that they were precipitated when Mrs. Tucker and Powley blocked the path of Mrs. Tyree and Edwards, respectively. These incidents will be discussed below, although passing mention may be made here that Powley was not one of the 66 employees whose reinstate- ment is in issue, and that, in the Examiner's opinion, neither he nor Mrs. Tucker deliberately engaged in any blocking activity. na Meriwether testified that' on the employees' arrival "the crowd was all congregated right in front of the plant on the sidewalk and our property" and that "it was almost impossible to get through the crowd into the door." According to Meriwether, there was a rapid -increase in the numbers about the plant between 5:00 a. in. and 6 : 00 when he places the number at about 40 (25 or 30 under cross-examination). He states that lie "believe(s)" that at 5 15 the plant janitor "couldn't get in and he (the janitor) called the police." (It does not appear whether Meriwether's statement about the janitor is based on person knowledge. The janitor was not produced as a witness. The use of the word "believe" suggests hearsay.) According to Meriwether, a police car "drove by until (the janitor) got into the door" and then drove on. Meriwether asserts that he "called the police again" (apparently about 6: 30), because lie "didn't think (Mrs. Tyree and a companion) could get through the crowd" and that they arrived about 6 : 40 or "a few minutes before." Mrs. Tyree estimated that there were 50 people in the area when she arrived at 6 : 30 ; that there were not "over 10 or 15" people in the concrete walk leading to the entrance, although "there could have been" between 5 and 10 persons there, but she believed the number to be "more" ; that the walk was not "choked up" ; and that she "could have got through if I just went all the way around everybody." The only persons she could name as present in the walk were Mrs. Tucker, June Ellington and Venice Watson, and she asserts that she "didn't pay any attention" either to the crowd or the people in the walk. Leaving Mrs. Tyree's testimony for later discussion, the Examiner can attach little or no weight to Meriwether's testimony describing the situation, and he does not credit it. First, it is contrary to the weight of the credible evidence as to the number and distribution of the strikers at the time in question. Second, his testimony identifies none of the crowd, so that it is impossible to separate strikers from others in an area where there were bystanders and employees en route to work in nearby plants, and to allocate individual responsibility for any alleged interference. Finally, if the situation were as ominous at 6 o'clock as his testimony intimates, and the police were ac- tually summoned only a short while earlier to let a janitor (who was not produced) into the plant, it seems quite unlikely that the police would have ignored the scene until summoned 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who arrived at about 7 o'clock testified that she entered the plant without obstruc- tion, and it is evident that three others who arrived with her also suffered no hindrance. Similarly, Mrs. Henson who arrived at 6:45 asserted that, while she met "four (strikers) abreast, then four more abreast," on the sidewalk (identifying only Harry Bennett), nobody obstructed her path except Zettie Walker, a striker, who, according to Mrs. Henson, was on the concrete walk "whirling" about with her hands on her hips and "hit" the witness when the latter was about 5 or 6 feet from the entrance as she was proceeding up the walk with other employees."' (For the reasons set out in the margin below, the Examiner finds that Mrs. Walker did not deliberately block Mrs. Henson's path, was not "whirling," and unintentionally brushed against her.) Moreover, Mrs. Hendren and Mrs. Henson testified that they observed no violence, although it is evident from their testimony that they kept the plant area under close observation all day."' The Examiner finds that none of the 66 employees' engaged in unlawful mass picketing on May 27 or at any other time. The Respondent adduced evidence that several of the striking employees and members of the Union's committee, who had been discharged on April 22, made threatening remarks to some nonstrikers." Leonard Ashby testified that he came to work about 7: 00 o'clock on the 27th with another nonstriker, Wesley Warner, and that, as was his custom, he was again, particularly as, according to Mrs. Hendren, she had called the police to the plant on the previous day when the Respondent claims that substantially all of the strikers were massed in front of the plant. The Respondent's unexplained failure to call the janitor or any of the policemen to testify to what they saw upon arrival materially weakens the Respondent's claim of unlawful obstruction and contributes to the Examiner's conclusion that Meriwether's description is unreliable (N. L. R. B. v. Ohio Calcium Co., 133 F. (2d) 721 (C. A. 6) ). 117 Mrs. Henson also testified that in "whirling" and "dancing" about, Zettie Walker "hit" two other employees (whether at the same time is uncertain ) proceeding up the walk toward the entrance. Mrs. Henson stated she was not bruised, nor is there any evidence that any of the others were. Eunice Chapman (one of the other two) also testified that she was "hit" by Mrs. Walker as the latter was "whirling around" in the walk. In rebuttal, Mrs. Walker testified that at the moment of contact with Mrs. Henson and the others passing toward the entrance , she was standing astride the point where the concrete walk meets the city sidewalk ; that she was facing the plant with her hands on her hips and moving about and not "dancing" ; that she was talking to a police officer stationed there: and that she unintentionally "touched" Mrs. Henson and the others with her elbows . According to Mrs. Henson and Mrs. Walker , the former asked the policeman to tell the striker to get off the Company's property and Mrs. Walker complied. Mrs. Walker's testimony that she was talking to the officer was not controverted. The signifi- cant fact in this incident is the presence of the police officers. It gives support to Mrs. Walker's statement that she was not "dancing" on the walk 5 or 6 feet from the entrance and-that she-unintentionally "touched" the others with her elbows. It is unlikely that the policeman would have permitted her to "whirl" or "dance" obstructively on the Company's walk a few feet from the door . The Examiner regards the word "whirling," "dancing" and "hit" as more descriptive than factual, and he credits Mrs. Walker's testimony. 118 Mrs. Hendren and Mrs. Henson testified that they compiled a list during the day of all the striking employees who appeared on the scene, using the office windows as points of observation. This was done in connection with an injunction action which the Respondent instituted the same (lay in the McCracken County Circuit Court. 110 In evaluating the evidence with respect to threatening remarks, the Examiner can attach no weight to testimony such as Mrs. Henson's that when she arrived for work unidentified persons made the statement, "You'll go in today, but you won't come in tomorrow." Moreover, such testimony must be viewed in the light of the fact that police were in the immediate vicinity, and there is no evidence that they made any arrests for such remarks or even objected to them. That circumstance, coupled with the absence of identifications, raises a substantial doubt as to the reliability of such testimony. DEENA ARTWARE, INCORPORATED 785 about to park near the warehouse when 15 to 20 strikers gathered around the car. Of the group, Ashby identified only Powley and Hines. Asked what was said, Ashby responded, "Well, they just didn't want us to go across the picket line; wanted us to cooperate with the Union and all." After a leading question (to which an objection was sustained) as to the "substance of what was said about why you should cooperate and what would happen if you didn't," Ashby was asked again to state the substance of what was said by those around the car. This time he responded that someone had said, "It would be safer in the long run to say in the car and not go back to work that morning." (Ashby attributed almost the identical language to Brooks in a conversation he claims he had with the latter on the preceding day.) Upon inquiry from the undersigned, Ashby said that "someone in the crowd" whom he could not identify had made that remark and that he "imagine(d)" the statement had been made to him and Warner since they were the only ones in the car. He also stated that the remark he heard was the reason he (lid not go in although at a later point, under cross-examination, he said that his reason was that "there was fighting (perhaps the Powley-Edwards scuffle) going on" which lie admitted not seeing and appar- ently deduced from the presence of police. Upon further inquiry, he agreed that he did not go in because "among other things there were police there." Ashby asserted that all of the members of the group were "just mostly talking out loud" and he "couldn't say if they (were) talking to me directly or just to me or Wes (Warner)." According to Ashby, he remained about 30 minutes and then left. According to several witnesses called by. the General Counsel, the number grouped about the car was variously estimated as from 5 to 7 (Hines, Coleman and Berry). Several of the people present, it was asserted, did not join the group at the same time, but it grew to the estimated number as they were attracted by curiosity (Berry) 120 or for want of anything else to do (Coleman). Coleman stated that he conversed with Warner about a "beer party" they had both attended. He asserted that he "think(s)" that Grimes "stopped by and had something to say" and that he "believe(s)" that Meriwether joined the group while the conversation was in progress. According to Coleman, the manager asked Ashby if he intended to go in to work and the latter responded that he did not think so. Coleman also stated that Grimes made a remark to Meriwether that "he must be getting brave to come out without police protection" and that Meriwether made a laughing response. Meriwether, Coleman testified, left and Ashby "eventually" departed. The General Counsel's witnesses stated that no threats of any kind were made. Significantly, Meriwether did not resume the stand to deny his participation in the conversation. Powley denied that lie was one of the group, stating that it was on the previous day that he had spoken to Ashby. His denial is given strong support by the fact that he had a scuffle with Murrell Edwards, a nonstriker shortly after 6: 30 and was taken to the police station with Edwards where they remained for an unspecified time during part of the morning. As it is apparent that the Powley- Edwards affair took place shortly before the occasion of Ashby's presence, and that the latter remained only about 30 minutes, the time factors render Ashby's testimony concerning Powley very improbable. The Examiner credits Powley's denial that he.was present and finds that Ashby was not telling the truth in placing him there. 120 Berry estimated the time as between 9 : 00 and 9 : 30. The Examiner credits the fact that be was present and attaches no significance to the witness' time estimate. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is unnecessary to speculate whether Ashby was motivated not to enter the plant by group loyalty 121 or timidity or a combination of both or other reasons, although it is evident , as he intimated at one point, that he came down that morning "to see how things looked." It appeared to the Examiner that he was reluctant to testify and that he manifested a lack of frankness. He was vague at significant points and his manner in describing the occasion evidenced much uncertainty. Based on the evidence as a whole, the Examiner regards his testi- mony as unreliable and does not credit his evidence with respect to threatening remarks. Moreover, he did not identify the person alleged to have made them, and to charge any given person with misconduct on the basis of the alleged remarks would involve sheer speculation. 122 According to Mrs. John Oliver, who had testified to an incident involving her nephew, Harold E. Medley, on the preceding day, after she returned home from work on the 27th, she was on her porch when Medley, who lived next door , passed by and called her a "scabbin' son-of-a-bitch" and "a lot of dirty words." She also asserted, "He told me I might go back ; I'd go in but I wouldn't be long." As to this incident, Medley testified that when he spoke to his aunt he was angry at her because she had told his wife "a lie" on the preceding day that be had been "drunk down at the plant and (that ) we (were ) out on strike and fighting." Medley stated his wife had become angry at him as a result. According to Medley, his aunt greeted him as he was passing and all he said on that occasion was, "Aunt Jennie, goddam it, don't speak to me." Medley testified that on the following day,128 he had "been to town " and had returned home intoxicated. On this occasion also, his aunt was on the porch and he passed her on his way. The nub of his testimony , with respect to this occasion , is that he does not remember what he said and that he could have called her a "scabbing son-of-a- bitch," but that he did not "think so." He asserted, "I won't deny it if she said I did" (call her that name ). Medley denied that he had made threatening remarks to his aunt at any time. Mrs. Oliver made no reference to any conversation on the 28th , nor did she describe Medley's condition when he called her names . She also did not contro- vert Medley's claim that she had told "a lie" to his wife about him. As Medley appeared to be uncertain of the dates involved, it is very probable that the con- versation (but not its terms ) he described as taking place on the 28th, occurred on the 27th . Mrs. Oliver impressed the Examiner as a reliable witness and he credits her testimony that Medley made the remarks she attributes to him on the 27th, and he does not credit Medley's version of the conversation , whether on 'n Powley testified, without contradiction, that some time after the strike broke out, he encountered Ashby, and that the latter gave him a cigar because his wife had just had a baby. 122 Ashby also testified that 2 days later, during the course of a "friendly" conversation with Tilmon Barker, who had joined the walkout, Barker told Ashby that he (Barker) "didn't like the Union" and that there were "about five (of the strikers) after (Ashby) that had it in for him." The witnesses stated that Barker was friendly and not threaten- ing. Ashby affirmed that Barker was "just telling (him) something that he purported to know about." Ashby stated that Barker did not tell him the names of the five "after" him. The Examiner attaches no weight to the testimony. It is clear that the witness was not Imputing any threatening conduct to Baker, but was quoting Barker's statement about the attitude of five unidentified persons . As for these Individuals, It is Impossible, aside from the question of Ashby's reliability to tell whether Barker's statement to Ashby was based on Barker's assumption, conclusion, hearsay or personal knowledge. The Examiner Is not at liberty to speculate either as to the identity of the five or the basis for Barker's statement. 121 Medley seemed somewhat uncertain of the sequence of events. DEENA ARTWARE, INCORPORATED 787 the 27th or the 28th. Medley's conduct is inexcusable and not to be condoned, but the question is whether it is sufficient to warrant a denial of reinstatement. Manifestly, much, if not all, of his attitude stemmed from anger growing out of a personal irritation, rather than from a strike activity. As has been observed above, similar idle talk has not been regpided by the Board as restraint or coer- cion, and the Examiner does not consider Medley' s remarks to be such within the meaning of the Act. In any event, the incident is of insufficient significance to justify a denial of reinstatement. John Henry Talley gave testimony for the Respondent that he arrived at the plant on May 27 and "came up to" Powley and Bennett, who told him that "they whipped up" Rosebud Tyree and Murrell Edwards and that "if I went in I would receive the same treatment." Talley stated he did not enter the plant. On the evening of the next day, he testified, Phelps and Coleman visited him at his home and told him "they had whipped (James Dunkerson) another colored janitor down at Deena Artware," and that "they wanted me and the other janitor named Andrew Walker to whip him." According to Talley, Phelps and Coleman told him if he "whipped (Dunkerson) it wouldn't look like race discrimination." On cross-examination, Talley agreed that the proposal "didn't make sense to him." He also stated that on Saturday, May 29, Bellew and Powley encountered him at a filling station and told him that "all of them were planning to go on back to work on Monday." Talley stated that he returned to work on Monday. He admitted, also, that 2 or 3 weeks after the strike began, and while it was still in progress, lie was on his way to work and Powley gave him a lift to the plant. In rebuttal, Richards ( a member of the Union's negotiating committee) stated that he saw Talley at 6 :15 a. in. on the 27th at a bus stop across the street from the plant, and that he asked Talley "not to go across the picket line," to which Talley allegedly responded, "I'm not going across it. . . . I'm going back home." According to Richards, Talley stayed awhile and then left. Powley and Bennett denied that they spoke to Talley on the morning of May 27 (Powley denied even seeing him that day). While Talley did not mention the time when he arrived for work, it is reasonable to assume that it was at the employees' customary time of arrival , some time before 7 in the morning (also, see Richards' testimony). Talley ties the threat to a reference by Powley and Bennett that they had "whipped up" Edwards. Powley did have a scuffle with Edwards at about 6: 30, and both he and Edwards were immediately arrested by the police, removed from the scene, and taken either to the police court or station where they remained for some unspecified period that morning. The inference is plain that Powley could not have had the conversation with Talley that the latter claims took place upon his arrival. The Examiner does not believe Talley's statement that Powley and Bennett threatened him, particularly in the light of Powley's manifest absence from the scene at the time, and in view of the admitted assistance he gave Talley in going to work one morning during the strike. The indicated infirmity in Talley's claim that Powley and Bennett threatened him serves to cast suspicion on his account of the visits by Phelps and Coleman to his home. Both Phelps and Coleman testified, in substance, that some time after the strike began (presumably after Talley had returned to work and not on the 28th) they saw Talley leave the plant during working hours holding his lunch box and what appeared to be a pay check. They stated that they decided later to visit Talley to find out if he had been discharged, and did so that evening. According to Phelps, they asked Talley whether lie had been fired and he replied that he had not been discharged, but had left the plant early because his wife 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was ill. Coleman added that Talley's wife was pregnant and that they "kidded him about his family life." They stated in effect that they remained only a short while. Both witnesses denied asking Talley to whip Dunkerson. -Coleman said that he had spoken to Talley about the other janitor (who was the head porter), but not at Talley's home. According to Coleman, Talley and another janitor, Sylvester, had often told him before the strike that they did not like Dunkerson because "he did nothing but run around and carry his lunch," and on one occasion Talley had "said he would really like to kick" Dunkerson, but was afraid he would be discharged. Coleman testified that 2 or 3 days after the strike began, Talley walked on the picket line, and Coleman told him then : "You can point the toe of your shoe and not get fired." The General Counsel adduced evidence that Talley had attended one or more union meetings 124 and had picketed briefly. Talley denied engaging in either activity. Talley impressed the Examiner as an unreliable witness. His account of tile visit of Phelps and Coleman strikes an improbable note and had an artificial quality as he related it. The Examiner does not credit his testimony and finds that he attended one or more union meetings and picketed briefly at Powley's request 125 on May 2S, withdrawing from all participation in the strike thereafter, and that Phelps and Coleman did not ask him to whip Dunkerson. With respect to the Respondent's evidence bearing on alleged coercive conduct, two other incidents occurring on May 27 require mention. According to Eunice Chapman, in the evening of the 27th, she and Lonnie DePriest were both visiting the home of a mutual friend (whose sister he was courting). Mrs. Chapman testified that in her presence, DePriest telephoned Ann Rudolph, a nonstriker, and stated, "lie was telling her as a friend as he (had) told her (Mrs. Chapman) that she better not come into work the next morning because there was going to be trouble." DePriest denied making the call. Ann Rudolph was not produced as a witness, and the substance of the other end of the alleged conversation is unknown. A similar conversation between Mrs. Chap- man and DePriest has been described above. As in the case of the other incident, the Examiner credits Mrs. Chapman and not DePriest's denial. The Examiner does not, however, accord the incident any legal significance. As indicated above, DePriest was not an employee and his reinstatement is not in issue. Moreover, his statement to Ann Rudolph, as well as a similar one Mrs. Chapman claims lie made to her on the previous day, was not a threat. Mrs. Chapman was a "good friend" of both DePriest and the girl he was then courting and subsequently mar- ried. The Examiner makes the same finding, with respect to the Rudolph con- versation as he made in connection with DePriest's remarks to Mrs. Chapman. 124 Alice Seavers, Myra Meeks. and Thomas Richards testified that Talley had attended one or snore union meetings . The General Counsel also had available six other witnesses to testify to the same effect and offered to adduce testimony through then, but did not place them on the stand when the Trial Examiner observed that, in the light of the cross- examination of the other three , additional evidence would appear to be merely cumulative. 125 According to Powley (who was picket captain) Talley sought him out on May 28 and asked to be excused from picket duty because lie is colored . Thereupon , Powley testified, lie asked Talley to picket with him "and then go home." Powley stated that Talley picketed with him for a while that morning. According to Powley, Talley asked to be excused again the next day, stating that his wife was ill, and he was told to "forget about walking the picket line." Talley denied seeking Powloy out and requesting to be excused. He asserted that he and a companion met Powley near the plant on May 28 and that Powley asked him to picket but that lie refused. The Trial Examiner credits Powley's testimony and not Talley's. DEENA ARTWARE, INCORPORATED 789 The other incident was caused in the opinion of the Examiner, as much by the prevocative conduct of several nonstrikers as anything else. Some time before noon, Gertrude Dowdy, Powley, and several others were standing on the sidewalk in front of the Third Street side of the plant. According to Mrs. Rutherford, who was working on that side near a window on the upper floor, Mrs. Dowdy called out to her, "You come down here and you won't go back," to which Mrs. Ruther- ford responded that she would "meet (Mrs. Dowdy) by herself." Powley, Mrs. Rutherford asserted, also called out, "I would give $500 to be a woman and knock that innocent look off your face." Mrs. Rutherford denied provoking either remark, although she admitted spending as much time looking out of the window as working. According to the General Counsel's evidence a number of female employees (Eunice Chapman, Maxine Rutherford, Naomi Copeland, Ann Rudolph, and others) kept looking out of the windows at those below; some (Maxine Ruther- ford, Naomi Copeland, and others unidetified) were "hollering""' and "flipping things" down at those below;'" and Maxine Rutherford "yelled down at Powley" that she would drop a lamp on him if he did not leave.12' Mrs. Rutherford denied throwing anything out of the window or seeing anyone else do so or threatening to throw a lamp on Powley. Mrs. Chapman also denied throwing things from the window. She asserted that she heard Powley complain to Bellew about the presence of employees at the window and tell him "if he didn't make us get away from the window he would turn them loose and they'd come up and get us." Mrs. Dowdy denied making the remarks attributed to her. With respect to Mrs. Chapman's testimony, Powley claims he told Bellew and Grimes that if Mrs. Rutherford dropped a lamp "there was no telling what would happen." He also asserted that lie had said nothing before Mrs. Rutherford's alleged threat, but that when she made it, he "probably could have" made the remark "in substance" attributed to him. The evidence is undisputed that Bellew and Meriwether agreed to silence their respective groups.'20 Meriwether went upstairs and closed the windows, and Bellew told those on the sidewalk to cross to the opposite side. A resolution of the credibility issues is unnecessary. What is legally dis- positive of any issue presented is the fact that Powley and Mrs. Dowdy were also among the members of the Union's Committee discharged on April 22, and their reinstatement is not in issue. Moreover, the Examiner considers the in- cident as relatively "too trivial to be regarded as restraint and coercion." '30 He believes that the girls at the windows behaved provocatively, but he regards their behavior as normal under the circumstances ; the strike setting was as much a focus for their interest as for the strikers whose presence in sub- stantial numbers with attendant jeering and name-calling earlier that day was in turn a provocation for the nonstrikers. Whatever colloquies occurred be- tween the girls at the windows and those behind should be regarded as no more than the exchange of discourtesies which are customary in such a setting be- tween transiently antagonistic groups who fortunately usually give vent to their emotions with their tongues rather than with their deeds. 12° Bellew's testimony ; also that of Alice Brian. 129 Powley's, Mrs. Dowdy's and Miss Brian's testimony. '2e Powley's and Mrs. Dowdy's testimony. 12° See Bellew's testimony. 130 Matter of Sunset Line and Twine Company, supra. 867351-30-vol. 36-51 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Except for an incident occurring on July 13, the Powley-Edwards and Tucker- Tyree scuffles and the kick allegedly given Elizabeth Cox by Alice Kelley con- stitute the sum of the Respondent's allegations of violence. Powley is not employed at the plant and the question of his reinstatement is not within the framework of the issues, but as the Respondent's evidence stressed the incident, a recital of the significant facts is appropriate. Edwards, who is a foreman of one of the plant's departments, came to work in a car with three female employees at about 6: 30 a. in."' The others went in without any com- ment or hinderance from strikers in the area. Edwards had been "fairly friendly" with Powley. According to Edwards, he had begun to walk up the con- crete walk toward the entrance when Powley and Girten came up to him and Powley said, "You're not going in, Eddie," to which Edwards responded that he was going in. Edwards testified that at that moment Powley had his hand stretched out in front of the foreman's body "to keep me from passing by," and Edwards "pushed his hand down," whereupon Powley "took a swing" at Edwards who threw his arm up and warded off the blow. Two policemen stand- ing a few feet away intervened at that point, arrested both Powley and Edwards and took them away. Both were fined $1.00 and put "under a $200.00 peace bond." Under cross-examination, Edwards stated that he saw the policemen before the affair started. Edwards also agreed that he was "touchy," but not "scared much," and that Powley "could have had his arm out there to speak to you for a minute." He "couldn't say" whether he became excited because of the extended arm. Powley testified, without contradiction, that on the previous day he had spoken to Edwards about joining the strike and that the latter had been noncommittal. According to Powley, that was the reason he "wanted to talk to him the next morning." The substance of Powley's description of the events leading up to the scuffle is that he was standing on or near the corner adjacent to the concrete walk, with his face toward the plant entrance; that a policeman was a few steps away ; that Edwards passed him and turned up the walk ; that Powley called him, stating he wanted to speak to him, and Edwards turned back ; and that Powley asked him "to stay out and help us," meanwhile talking with his bands. From that point on, Powley's version is substantially the same as that of Edwards. The Examiner believes that the versions of both were honestly given. He attaches no significance to the variances in the respective accounts as to what was said and as to the precise positions of the participants, for it is plain that both became somewhat excited and formed impressions in an atmosphere charged with emotion. It appears to the undersigned that Powley did not intentionally block Edwards' passage, if for no other reason than that the police were so close. Edwards admittedly made the first physically hostile move, and, it would appear, unnecessarily so, because all he had to do was either to ignore Powley and walk around him, if in fact Powley was in his way, or signal the policeman. Powley, as he put it, did not "know how to take it" and struck hack. It is evident that the propensity of the male to vindicate his manhood through physical manifesta- tions took charge of the judgment of both. The Tucker-Tyree affair apparently occurred a little earlier. According to Mrs. Tyree, when she arrived for work she saw that the concrete walk was "full of people" and that she "couldn't get through," so she started around the "'The transcript erroneously shows the time as 8 : 30 at one point. From the context of the evidence as a whole, as well as other portions of Edwards' testimony, it is clear thn time was 6 : 30. DEENA ARTWARE, INCORPORATED 791 picket fence into the gravel driveway which runs from the entrance at an angle to the walk to Ohio Street. Mrs. Tyree gave the following account of what happened next: And before I got half way up to it (the door), Vera Mae (Tucker) walked up and grabbed me by the blouse and told me that I wasn't going in. And I told her that is what I came over for ; I was going in. And I kind of stepped aside like I was going in, and when I did, we started to fight. We fought all up and down the walk. And I was up on Company property at the time ; and she kept on pushing me, and my back was to the street. And as I got half way down the walk there, Gertrude Dowdy grabbed my hand and held me. And in about that time the law came, and when they did, why, they turned loose of me, and I picked up my lunch and walked in. Mrs. Tyree asserted that she tore her blouse, sustained "a few scratches" and broke her watch as a result of the fracas. She also stated, "I wasn't scratched very much. It didn't hurt me any." At one point during her direct examination, Mrs. Tyree responded to a question as to who made "the first hostile move" by demonstrating "how women fight." Then, in answer to another as to "who grabbed who (in) first," although she had previously testified that Mrs. Tucker initiated the affair by walking up and grabbing her by the blouse, she responded, "I don't know." On cross-examination, she stated that Eva Lee Cox and Hazel Wyatt had come to work in her car with her and that she "think(s)" Hazel Wyatt went in, but that Eva Lee "stayed out there with me." (Neither one was produced as a witness with respect to the scuffle.) She also asserted that she did not know how many people were on the concrete walk, but "wouldn't say over 10 or 15." She admitted the number "could have been" between 5 and 10, but thought there were more, and agreed that she did not "mean that it (the walk) was really choked full, but that there were people there." Of the people allegedly in the walk she could name only June Ellington, Venice Watson, and Mrs. Tucker. As to whether she could have gone up the walk, she said, "I guess I could have got through if I just went all the way around everybody. But I went on around before I had any trouble." She agreed that before the strike she had used the gravel driveway, instead of the walk, "lots of times." Although denying that she was "mad" before the tussle started, she testified, "I don't like the idea of people walking up and telling me I can't do a thing." Mrs. Tyree had previously testified in the McCracken County Circuit Court 132 that when Mrs. Tucker said, "You are not going in," the latter "was grinning" and that the witness "thought at first she was joking." Mrs. Tyree admitted that she had so testified and that she had thought at the time of the conversation with Mrs. Tucker that the latter was "joking" but that upon subsequent reflection, her previous version of Mrs. Tucker's demeanor was incorrect, because "now I can see it clearer, and there wasn't any joking matter to it." Toward the close of her cross- examina- tion, she was asked how the fight started and also, whether she "started to scratch," and the witness answered, "I don't know how, but we just fought up and down the walk ; that was all, we both got scratches, so I guess we was both fighting." Mrs. Tucker testified that at the time of the encounter, she was in the drive- way near its entrance, because "it's not usually used as an entrance" and that she "was just standing around there away from the entrance." She asserted 332 The proceeding in the State court was an injunction action brought by the Respondent against the strikers. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that at the time there were no people on the concrete walk, but that there were some on the corner (which is close both to the entrance to the walk and the driveway). According to Mrs. Tucker, she first noticed Mrs. Tyree when the latter parked her car on Ohio Street, but she "didn't notice her coming up to the plant till she got to the curb out there on Third Street" and was approaching the point where Mrs. Tucker was standing. On cross-examination, Mrs. Tucker admitted that in the previous proceeding in the state court, she had testified that Mrs. Tyree had come "across the street with (her fist) doubled up." The following is Mrs. Tucker's version of the scuffle, as given on her direct examination : Well, she came up this gravel driveway I was standing at and I asked Rosebud, "Are you going in to work today?" She says, "I sure am," and she gave me a shove and told me to get out of her way. She came at me and scratched me, and when she did, I grabbed her and belt [sic] her." Denying that she shoved Mrs. Tyree first, Mrs. Tucker asserted that she "grabbed" the former only "when she scratched me" and that she (Mrs. Tucker) did not "tell (Mrs. Tyree) she couldn't go into the plant," nor did she "take any active steps to prevent her" from doing so. According to Mrs. Tucker, Gertrude Dowdy was not in the driveway, and the scuffle took place entirely there and not at any point in the walk. She stated that after she turned Mrs. Tyree "loose," the latter said, "Vera Mae Tucker, you damn bitch, I'll get you." Mrs. Tucker also asserted that she was laughing during the scuffle. Mrs. Dowdy's description of the location of the participants differed from their respective versions. Denying that she "grabbed" or "touched" Mrs. Tyree, the substance of Mrs. Dowdy's testimony was that Mrs. Tucker was standing on the sidewalk in front of the concrete walk (at another point she indicated, but not clearly, that Mrs. Tucker was in the walk) ; that Mrs. Tyree "just run up and pushed her some way to get by"; and that Dirs. Tucker "just stood there and was holding her (Mrs. Tyree's) hands, and Rosebud was fighting all the time." The witness denied that she was in the walk. She also stated that Mrs. Tucker was laughing during the affair and that the latter was the oie who was scratched. Upon observation of the witnesses, the Examiner does not regard the variances in the testimony as to the location of the participants at the start of or during the tussle as decisive either of their credibility or of the question of who was the aggressor. The atmosphere was charged with excitement and undoubtedly affected the powers of observation of those involved. To the undersigned, the most significant features of the evidence were the demeanor and disposition of the witnesses, as well as the content of their statements, and an apparent lack of frankness in Mrs. Tyree's answers to questions bearing on whether she 'or Mrs. Tucker made the first physically hostile move. She impressed the under- signed as an aggressive and combative type, whereas Mrs. Tucker did not. Mrs. Tyree was understandably concerned about getting into the plant. The Exam- iner does not believe that she was looking for trouble, but, on the other hand, she was not prepared to yield anything to avoid it, and she brought a general attitude of firmness and determination to bear on her interpretation of the setting and the reason for Mrs. Tucker's presence in her path. The Examiner does not credit Mrs. Tyree's claim that Mrs. Tucker grabbed her by the blouse to impede her progress to the door, particularly in the light of the evasiveness of her testimony as to who made "the first hostile move" and "who grabbed who (m) first." Nor does the Examiner credit Mrs. Tyree's assertion that Mrs. Tucker affirmatively DEENA ARTWARE, INCORPORATED 793 declared that the former "wasn't going in," especially as there is substantial evi- dence that Mrs. Tucker was in good humor when she spoke to Mrs. Tyree, while it is evident that the latter was not. There again, bringing her predisposition to bear on the setting, it is probable that Mrs. Tyree placed a hostile and aggressive construction on a request that she not go in. In interpreting the conduct of other people, much depends on the reception we are prepared to give it and the motives we impute to them. Mrs. Tyree apparently regarded Mrs. Tucker as an obstacle in her path, and it is not unlikely that she imputed hostile motives to the latter, but that does not dispose of the question whether Mrs. Tucker intended to prevent Mrs. Tyree from entering the plant or of who was the aggressor. Based upon the evidence as a whole, the Examiner finds that Mrs. Tucker did not seek to bar Mrs. Tyree from the plant, either physically or by intimidation, and that Mrs. Tyree was the aggressor in the tussle. Turning to the Kelley-Cox incident, the Respondent adduced evidence that Elizabeth Cox and Ruth Cummings went out to lunch about 11: 30 a. in. on the 27th and that, as they were leaving the plant to go up Third Street to a nearby restaurant, somebody said, "Let's go get em." The evidence does not identify the person who made the remark, although Mrs. Cog and Mrs. Bannister X33 testified to it (Ruth Cummings was not produced as a witness). According to Mrs. Hen- dren, she requested the police captain on duty in front of the building to detail police to follow the girls to the restaurant and he assigned two policemen to do so in a car. The evidence is undisputed that seven of the girls on strike walked behind Elizabeth Cox and Ruth Cummings at some unspecified distance toward the res- taurant and entered it after them, as did two policemen. The seven strikers were Alice Kelley, Dorothy Branton, Pauline Few, Gertrude Rutherford, Edna Grief, Vera Mae Tucker, and Thelma Ray. It is also undisputed that the policemen conversed with the seven girls in the restaurant and bought them soft drinks. According to Mrs. Cox, the police left first and entered their car, then several of the strikers, followed by Mrs. Cox and Ruth Cummings, with the remaining strik- ing employees bringing up the rear. Mrs. Cox stated that she "think( s) it was Dorothy Branton that stopped me out in front and got right in front of me and (said) `You're not going back to work,"' to which, Mrs. Cox testified, she re- sponded that she did not "want to have any trouble." Mrs. Cox asserted she went over to one of the policemen and asked, "What do we do now?" and that he said, "Go to work, they're not going to hurt you." According to Mrs. Cox, Ruth Cum- mings said, "One of them's already kicked me," and the policeman responded, "Go on to work." Mrs. Cox did not testify that she saw anybody kick Ruth Cummings, nor did she say that the latter named the person who allegedly kicked her. Ruth Cummings was not produced as a witness , nor was either of the police- men called. Dorothy Branton denied that she spoke to either of the nonstrikers. According to Mrs. Cox, several of the strikers preceded her and Ruth Cummings en route to the plant and were holding hands stretched across the sidewalk, while the remaining girls walked behind them. Mrs. Cox testified that, while walking in that fashion, Alice Kelley, who was one of those behind, kicked her. She com- pleted her direct examination by stating that upon her return to the plant, both she and Ruth Cummings told Mrs. Hendren that "they had kicked us" and that "Ruth had a place on her knee and I had a mark on the back of my leg where Alice Kelley had kicked us." The portion of the witness' testimony which indi- cates that Alice Kelley had kicked Ruth Cummings is regarded by the Examiner 3a3 Novalee Bannister left the plant for lunch just before Elizabeth Cox and Ruth Cum- mings and preceded them up Third Street. 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD within the context of the evidence as hearsay . There is no evidence that Mrs. Cox saw the incident , and it is a curious circumstance that she did not see it, if it occurred . That part of her testimony is peculiar , because she appeared to rest her knowledge of what happened to Ruth Cummings on a statement the latter allegedly made to the police in front of the restaurant , but which did not name Alice Kelley or anybody else. On cross-examination , Mrs. Cox was asked how she knew Alice Kelley kicked her and if it was done on purpose , and *she said, "Well, I felt it. I turned around and she was right behind me. . . . I don't know how she would have kicked it if she didn't do it on purpose." Mrs. Cox was also interrogated whether Alice Kelley could have "stumbled against" her, and agreeing that the other girl was "chunky," she said that Mrs. Kelley ran against her after the kicking incident at a point close to the plant. She stated that when these two incidents occurred the police were cruising in their car alongside and that there were also cars parked along the curb of the sidewalk on which the girls were all. walking, The police car "stayed pretty close along with us." When the "stumbling" incident occurred, Mrs. Cox testified, the police "asked her (Alice Kelley) if she wanted to go to jail," and one of the girls protested, "Well, she couldn't help it if she stumbled." Mrs. Cox said nothing about the alleged kicking incident to the police, making no mention of it to anyone until she spoke to Mrs. Hendren. In rebuttal, with respect to the "kicking" incident, the General Counsel pro- duced the testimony of Dorothy Branton, Alice Kelley, and Pauline Few. In addition to her denial that she said anything to either Elizabeth Cox or Ruth Cummings, Mrs. Branton testified that while she and several of the other strikers were walking in front of the nonstrikers, she and her companions turned and asked Alice Kelley and those behind "to come on up even with us"; that the latter group "started walking faster, or running to catch up with us"; and that "Alice's ankle turned on her and she stumbled and fell over . . . against Elizabeth or Ruth, or one of them." Mrs. Branton denied she saw Mrs. Kelley kick either girl. Mrs. Branton also stated that the police car stopped, and that one of the nonstrikers asked the policemen if they had seen the incident, and that the latter responded that they had not, "but they asked Alice if she wanted to go to jail," to which she answered that she did not. According to Mrs. Branton, the two nonstrikers went on to the plant and the other women went on their way. Mrs. Kelley denied kicking either Elizabeth Cox or Ruth Cummings, and repeated, in substance, the version that she stumbled against Dirs. Cox, as described by Mrs. Branton. Mrs. Few also described the incident substantially as had Mrs. Kelley and Mrs. Branton. Neither Mrs. Few nor Mrs. Kelley referred to the query by the policemen about "jail." Without reference at this point to the question whether an intentional kick by Mrs. Kelley is. a type of misconduct sufficient to warrant a denial of reinstate- ment, it is enough to point out that the burden of proving the incident rests with the Respondent, and the evidence does not preponderantly establish its conten- tion.15 As indicated above, there is no probative evidence that Ruth Cummings 134 Mrs. Hendren testified that both girls showed her "some bruise spots " on "the back of their ankle." Mrs. Cox stated that Ruth Cummings "had a place on her knee," and not at the back of her ankle. 125 Respondent's counsel on cross-examination of Mrs. Kelley asked her, "weren't you convicted in court ?" The Examiner sustained an objection to the question , indicating that its "particular form" was objectionable . Counsel then made an offer of proof that, if permitted to answer, the witness would state that she was convicted in the Paducah City Court of disorderly conduct growing out of the incident . In the Examiner 's judg- ment, not only was the "particular form" of the question, as put, improper because of its DEENA ARTWARE, INCORPORATED 795 was, in fact, kicked by Alice Kelley. Any statement made by Ruth Cummings to Mrs. Hendren is no more than hearsay. Moreover, neither she nor the police were produced as witnesses, and, in view of the express denial by Alice Kelley and the peculiar quality of Mrs. Cox's testimony (merely quoting a general statement by Ruth Cummings to the police concerning an incident Mrs. Cox was apparently in a position to see, if it occurred), a duty to produce the evidence of Ruth Cummings or the police devolved upon the Respondent if it wished to estab- lish probative evidence that Ruth Cummings was kicked. As to the alleged kick- ing of Mrs. Cox, she did not testify that she saw Mrs. Kelley intentionally kick her. True, she was not in a position to see it because her back was turned, but that does not diminish the fact that she only inferred that she was purposely kicked. The evidence of the statement, "Let's go get 'em" (although the person who made it remains unidentified) and the fact that the seven strikers followed the two girls shortly after it lend some support to the inference, but it is not enough when measured by the other circumstances, including the evidence of- fered by the General Counsel. It is a curious circumstance that Mrs. Cox made no reference in her direct examination to Mrs. Kelley's running against her, men- tioning it only on cross-examination as the occasion for the inquiry by the police. It is also strange that she said nothing to the police about a separate kicking incident or even that she had been kicked, although she claims the kick caused her bruise (which she apparently did not have two days later)."' The Examiner does not credit her testimony that the alleged kicking incident preceded, or was separate from, the occasion when Mrs. Kelley ran against her. Finally, in the face of all the evidence it seems unlikely, although not impossible, that, with the police so close, Mrs. Kelley would deliberately kick Mrs. Cox with sufficient force to cause a bruise. Based upon the evidence as a whole, the Examiner concludes that it does not preponderantly establish that Mrs. Kelley deliberately kicked Mrs. Cox. 3. The events of July 13 On the afternoon of July 13, Harry Bennett, president of the local and one of the nine discharged members of its negotiating committee , appeared before the plant.131 He encountered Meriwether , who had just driven up to the plant, and told him the employees were "scabby sons-of-bitches " and called the manager a similar name. Meriwether went into the plant. When the employees left the establishment at quitting time, Bennett made "insulting remarks" to them as they emerged. He had a roll of bills in his hands and offered to "shoot (dice) with any son-of-a-bitch for $200 or $300." Meriwether came over and asked him to leave , and Bennett called him names of the type mentioned above. Meanwhile Mrs. Hendren called the police. At this point, an employee, Ty Reynolds, was across the street waiting for a bus. Bennett picked up one or two bricks, and threw one or both 138 at Reynolds, but fortunately missed him . Reynolds was about to retaliate , but Meriwether broad and ambiguous scope, but evidence of a conviction of the type involved goes neither to the credibility of the witness, nor does it establish misconduct of a sufficiently serious nature to warrant a denial of reinstatement. 123 Mrs. Cox stated her bruise was gone when she appeared, with respect to the incident, in a local court. The record suggests that the appearance was on Saturday, May 29 (see cross-examination of Mrs. Kelley). 131 The findings in the Bennett incident are based on the undisputed and credited testi- mony of Meriwether, Scillion, Mrs. Hendren and Mrs. Bannister. n There is an immaterial variance in the evidence as to whether Bennett used one or two bricks. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stopped him. At that point, the police arrived and arrested Bennett. The two pickets did not participate in any of the incidents related above.19 The evidence that Bennett appeared to be drunk and that he was disorderly and attempted to inflict bodily harm upon Reynolds is undisputed. Bennett's condition and the fact that, according to Meriwether, he does not "usually talk that way" does not diminish his responsibility for his misconduct. Deplorable as Bennett's conduct was, it appears to have had the earmarks of a drunken adventure of his own, rather than to constitute participation in the conduct of the strike. But a resolution of the question is unnecessary, since the controlling fact is that Bennett's reinstatement is not in question (lie was one of those dis- charged on April 22), nor can his misconduct affect the reinstatement of the 66 striking employees, a point to which additional reference will be made below. Another incident which occurred that day requires mention.140 The Respondent adduced evidence that some time between midnight and 12: 30 a. ii-i. a glass pane in the front entrance and a window on the upper floor were broken, each by a brick. The missile thrown through the door glass also made a hole in a wall inside the plant. "There is no evidence14' . . . bringing such violence home to lag Mrs. Hendren testified that before the employees emerged from the plant , Bennett was "talking to two of the pickets." From the context of her testimony, it appears that his remarks to them consisted of an offer to shoot dice for "any amount tip to $500 with anybody that wanted to play." 140 Because the principal allegations of specific acts of misconduct are alleged to have occurred during the first 3 days of the strike and on July 13 , they have been considered under specific headings. However, two incidents allegedly occurred on other days which should be mentioned . Eunice Chapman testified that she was looking out of a window during the lunch period on an unspecified day in June and saw Pauline Few and another female striker ( unidentified by the witness ) in front of the concrete walk while "it was raining terribly hard." According to Mrs. Chapman , when several employees returned from lunch , the two pickets brought their signs together "and held them so low that either the girls had to go around through the gravel driveway or stoop under the signs to get back to work ." Mrs. Few denied deliberately blocking the entrance , stating that she would shift the sign from one shoulder to another from time to time ( and intimating that this caused her to lower it ). The General Counsel produced the other picket on duty, Elizabeth Boyd, who testified that she had been on picket duty from 8 a. in. to 4 p . in. and similarly denied that she had been trying to block the entrance . From the context of the evidence, the Examiner finds that it does not preponderantly establish that the pickets deliberately tried to block the entrance or engaged in conduct constituting restraint and coercion. Moreover, the incident is without substantial significance in relation to the question of reinstatement. The other incident is alleged to have occurred on July 19 . According to Hazel Wyatt, on the occasion of her return from lunch , while Elizabeth Boyd and Pauline Few were on picket duty , Mrs. Boyd said to her, "There's a damned bitch I'm going to whip. She owes me $10." The witness stated that Mrs. Boyd "kept trying to crowd me into the pottery" and said, "Go on in you damned bitch and call the damned law," and that later that day, the picket called her a similar name and "scab." Mrs. Wyatt denied she owed the money. Mrs. Boyd testified that she had loaned her the money before the strike and that it has not been repaid . Her version is that she asked for repayment, talking to Mrs. Wyatt as the latter was going up the walk, and that she did not "crowd " her. The picket denied making the remarks attributed to her , although stating she was "mail " because Mrs. Wyatt made no response and "acted " as though she did not owe the money . Mrs. Branton testi- fied that she was present when the loan was made . Aside from the issue of credibility, to the Examiner the incident has the earmarks of it private feud rather than a vital aspect of a labor dispute, although undoubtedly intensified by the ill feeling engendered by the strike. In any event , the Examiner dces not regard the incident as of sufficient importance to warrant a resolution of the credibility issues (cf. Republic Steel Corp . v. N. L. R. B., supra ; Matter of Sunset Line and Twine Co., supra). 141 At this stage of the strike night picketing , at least, was conducted by two pickets who usually slept in a car, on which a banner was mounted , during the hours after midnight. The pickets on duty at the time in question were Hines and McCoy who relieved Coleman and Rushing at midnight . The evidence is uncontroverted that Hines and McCoy went to DEENA ARTWARE, INCORPORATED 797 members of (the Union) or to anyone connected with them" (N. L. R. B. v. Stack- pole Carbon Co., 105 (2d) 167 (C. A. 3) ), and the Examiner cannot regard the breaking of the windows as having any bearing on the question of reinstatement ,of any of the 66 striking employees. 4. The alleged violation by the strikers of Section S (b) (4) At the time of the strike the Respondent was engaged in erecting an addition to its plant. The work was being performed by a firm of contractors, Vandevelde and Augustus . That firm had in turn subcontracted the iron work to one R. C. Jennings. The structure , when finished , was to be separated from the rear of the plant by the railroad tracks and was to be physically joined to the warehouse. At the time the strike broke out, construction had progressed as far as the laying of the foundation . As the structure was to face Second Street, one could see the rear entrance to the plant from that street by looking across the construction site toward the rear of the plant . Access to the plant may be gained through the rear door by entering from the railroad right of way separating the plant from the warehouse and the construction site. The Respondent's answer spells out an alleged violation of Section S (b) (4) (B)."a The defense rests on a claim by the Respondent that the Union and its striking members picketed the construction work and that, as a consequence of such picketing, some construction workers employed either by Vandevelde .and Augustus or by Jennings left their work. sleep soon after their arrival. Hines testified he heard nothing during the night and saw no one until he awoke about 5 : 30. Meriwether who was summoned to the plant shortly before 2 a. m. by George Harned, an employee on night duty, testified that he saw the pickets reclining in the car, one in front and one in the rear, that he "presumed they were asleep," and that it was customary for pickets on night duty to recline or sleep in a car. The police, who were immediately summoned by Meriwether arrived promptly. Meriwether does not "believe" that the police went over to the pickets' car. There is no evidence in the case that the police even interrogated anybody connected with the Union or that any arrests, whether of strikers or anyone else, were made because of the incident. Harned testified on direct examination that what he referred to as "pickets" (they bore no signs ) were in three or four cars on Third Street at about 10 : 30 or 11 p. in. On cross -exainination, he fixed the number at 1.0 or 15 and asserted that some "were in the car," some (about four or five) "lying on the grass over by the building," while others were walking up and down. "I didn't pay any attention to them," he testified. He knew none of the names of any of the people, but had seen them on picket duty during the day. At the hearing he identified Mrs. Few, Mrs. Spiceland, DePriest, and Powley ( of Powley's presence he was not "sure"). However, he stated that it was about 9:30 that he saw those identified, and he would not "swear" the persons present at midnight were the same as those he saw earlier, asserting that the composition of the group changed. All four identified by Harned denied that they were present as alleged by him. Powley, who lives close by, stated lie stopped by early in the evening while in his car to talk to Coleman (on picket duty) for a moment. DePriest denied that lie was there. Mrs. Few and Mrs. Spiceland established to the satisfaction of the Examiner that, during the evening, they were at a "Stanley party" given at Mrs. Spiceland's home. A "Stanley party" is one given by a demonstrator of commercial products to facilitate sales to housewives. The demon- strator, Mrs. Homer Golden, testified to the presence of Mrs. Spiceland and Mrs. Few at the party and verified the date through her date book. The Examiner does not credit Harned's identifications or attach any significance to the use of the word "pickets," which it is likely, judging by the context of his testimony, he was misusing. In any event, aside from the question of his credibility, it is plain that his testimony does not create a legitimate inference that the presence of people in the vicinity of the plant means that any of them threw the missiles . Significantly, the police were not called as witnesses, and there is no evidence that any of the members of the Union were even questioned or suspected by them. 142 See footnote 93, supra. 798 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It has already been observed that Section 8 (b), by its terms, creates a body of unfair labor practices prohibited to "a labor organization or its agents" and that the Act visualizes enforcement proceedings to prevent the commission of the unlawful acts by those to whom Section 8 (b) is applicable. For the reasons stated earlier, the only legal question suggested by the defense (but not expressly argued by the Respondent) is whether participation by an individual striker in conduct prohibited by Section 8 (b) (4) may warrant a denial of his reinstate- ment. In the judgment of the Examiner, to hold that it does would probably entail a dubious construction of the Act, but he finds it unnecessary to decide that question, because the defense, under the evidence adduced, suffers from other legal infirmities and is factually without merit. The language of Section 8 (b) (4) (B) disposes of the Respondent's contention. The relevant content of the section makes it an unfair labor practice for "a labor organization or its agents" to "induce or encourage the employees of any employer to engage in a strike or a concerted refusal * * * to perform any services, where an object thereof is * * * forcing or requiring any other employer to recognize or bargain with a labor organization as the representative of his em- ployees unless such labor organization has been certified as the representative of such employees under the provisions of Section 9 (emphasis supplied). The italicized language is dispositive of the defense.'"' The Union involved in the proceeding and in the alleged activity has been so certified after being duly designated by a majority of the Respondent's employees in an election held prior to the strike."' It is unnecessary for the purpose of considering the legal suffi- ciency of the defense to determine whether the construction employees were being picketed and, if they were, whether the "object" of the picketing was to force or require the Respondent to "bargain with" the Union. The defense asserts that such was the "object","' and, upon a showing that the Union has been certified, such picketing by the organization is not rendered unlawful by Section 8 (b) (4) (B). Therefore, assuming, for the sake of discussion, that the Union engaged in activities prohibited by Section 8 (b) (4) (B) to uncertified unions, such con- duct would not, because of the statutory exception, be unlawful, and it necessarily follows that its individual members participating in such activities would not be engaged in any illegal conduct. Moreover, wholly aside from the legal insufficiency of the defense in question, the record is barren of any credible evidence that any of the striking employees (or the Union) "induce(d) or encourage(d) the employees (of the contractor) to engage in a strike or a concerted refusal" to perform any of the acts set out in Section 8 (b) (4). The Respondent's proof bearing on the issue raised was adduced, in the main, through the testimony of Meriwether, Mrs. Hendren, Charles Vandevelde, a mem- ber of the contracting firm, and H. A. Downs, a supervisor employed by Jennings. Much of the evidence presented by the Respondent as to the alleged picketing of 143 As to the general meaning of the exception , see Senate Rept. No. 105 on S. 1126 (80th Cong.), p. 22; Rouse Conf. Rept. No. 510 on H. R. 3020 (80th Cong.), p. 43; remarks of Senator Taft, 93 Cong. Rec. 3954 ; Senator Morse, 93 Cong. Rec. 4557; and Senator Murray, 93 Cong. Rec. 5107. '" The mere fact that, due to an administrative error, an erroneous certificate was sent to the Respondent on April 16, 1948, and that the error was not corrected until August 9, 1948 is immaterial and does not affect the conclusion reached herein. See footnote 1.1, supra. 146 It has been found earlier that among the unfair labor practices causing the strike was the Respondent's failure and refusal to bargain in good faith . Hence, one of the objects of the strike was to secure collective bargaining with the Respondent. DEENA ARTWARE, INCORPORATED 799 the construction site and the effect upon the construction workers was conclu- sionary and vague, with little reasonable approximation of dates (important in this instance) and almost no identification of pickets.'40 In view of the nature of the Respondent's proof (the burden rests with the Respondent), and particu- larly as the legal infirmity of the defense pointed out above is decisive of the issue, no useful purpose would be served by a detailed analysis of the evidence adduced by both sides. Upon the entire record, the Examiner finds the following to be the controlling facts under the evidence adduced with respect to the defense: 347 Instructions issued to the pickets by the Union provided for picketing of the area covered by the Respondent's property. This included the plant, warehouse, and the adjacent construction site. The purpose was to cover the various en- trances to the warehouse and plant. The picketing tour which included the con- struction site began on the Ohio Street side of the warehouse, turned north on Second Street past the warehouse and the construction to Jackson Street, then west on that street to the railroad tracks, and then along the tracks past the rear entrance to the plant to Ohio Street.3'8 This picketing station was laid out as a convenient method of covering all entrances to the plant (except that on Third Street) and to the warehouse. Usually, the described area was covered by one or two pickets. Sometimes construction work was in progress when the pickets passed the site, and at other times it was not. The picketing signs used did not state that the construction work was being picketed, nor did they contain. any language ad- dressed to the construction employees 140 On June 14,1948, after a hearing in an injunction suit brought by the Respond- ent in the McCracken County Circuit Court, counsel for the Union and the Re- spondent agreed "more or less at the suggestion" 350 of the Court that the Union would advise the local of the Iron Workers Union that the Union involved herein had no dispute with the contractors and that the picketing was directed against the Respondent. The agreement was carried out on or about June 14. Shortly thereafter the picketing signs were also changed to contain language expressly stating that the strike was directed against the Respondent. On July 10, after a hearing in the State Court, in conjunction with the Respondent's proceeding 140 Work on the construction stopped on July 14. Mrs. Hendren testified that just before the stoppage, "pickets" in a car "went around to where the (construction) workers were" and that she saw Powley talking to a crane operator. According to her, the "pickets" were Powley and Bennett and their wives and Coleman. From the context of her testi- mony it is evident that Mrs. Hendren was misusing the word "pickets," for It is evident that they were not picketing. Actually, there was a picket there, but he had been posted by the Teamsters in a dispute with the contractors, and the crane operator and the other iron workers quit for that reason ( see testimony of Spurgeon Wright and affidavits of J. N. Meeks and Randle and Newburn Faughn , admitted in evidence by stipulation ; also testimony of Vandevelde and Downs ). Mcriwether identified only Phelps, Rushing, and DePriest as picketing past the construction work. Leaving aside generalizations , either not probative or of little weight, the only occasion when construction workers quit, which Meriwether probatively described, was that of July 14, and be admitted none of the striking employees were picketing past the construction site, but that a stranger was picketing there (from the context of the evidence , plainly a Teamsters picket ). Aside from generalizations concerning Deena pickets near the construction area, Vandevelde Identified none of the striking employees, while Downs identified only Phelps and DePriest. 147 Testimony which conflcts with the findings made is either not credited by the Exam- iner or not regarded by him as of sufficient probative force to warrant a finding. 148 See testimony of Bellew , Powley, Hines, and Rushing. 149 There is no evidence that any of the pickets (or anyone associated with the Union) ever asked or suggested to the construction employees that they leave their work. 150 See testimony of Joseph S. Freeland. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD therein, and as a consequence of that hearing, the Union discontinued picketing past the construction site,"' and none of the pickets engaged in picketing past the site thereafter 362 At about the time the strike broke out, the contractors had a dispute with the Teamsters Union unrelated to the controversy involved in this proceeding. The Teamsters posted a picket, and the construction workers ceased their work as a consequence 153 That dispute was settled the same day. Work was resumed, but the record does not indicate when it was begun again or to what extent it was carried on. On July 14, 1948, the contractors again had a dispute with the Teamsters on issues not involving either the Union or any of the strikers involved herein. The Teamsters posted a picket and the construction workers quit because of that reason 154 Neither the Union nor the strikers involved herein were picketing past the construction site at that time. The work on the addition was not resumed thereafter. There is no evidence, which the Examiner credits, that between the two occasions when the Teamsters posted pickets the construction workers quit their work as a result of picketing by the Union involved herein.166 The Examiner finds that the only occasions when the construction workers ceased work as a result of picketing after the strike began were those when the Teamsters picketed the construction site and that the two cessations of work were caused by the picketing by that organization and not by the Union or any of the strikers "'Prior to the testimony upon which this finding is based was adduced, find at a much earlier point in the hearing, the Respondent offered to introduce the decree and related orders entered in the State Court. The Examiner excluded them as neither competent nor relevant to the issues raised by the pleadings and the evidence which had been previously adduced at the hearing. The Respondent did not renew the offer. 162 V'andevelde testified that lie saw such picketing after the construction work was discontinued. The last work was clone on July 14. He was very vague as to dates and identified none of the pickets. His statement to the effect indicated is contrary to the weight of the evidence and is not credited by the Examiner. Similarly, Downs at one point stated that picketing was conducted after the discontinuance of the work, but at later points, he said that he did not know, "wouldn't say" and did not remember "what happened after that." 155 See testimony of Vandevelde and Downs. 154 See testimony of Wright and affidavits of Meeks and Randle and Newburn Faughn, admitted in evidence by stipulation. Meriwether, Vandevelde, and Downs all variously generalized that there were such cessations of work between the two occasions because of such picketing. Upon examination, such generalizations can have no probative force. The only specific occasion which Meri- wether identified was the one which occurred on July 14 (while he mentioned no date, it is apparent from the context of the evidence as a whole that that was the date). On direct examination , Vandevelde stated there were such cessations of work between the two occa- sions, but his testimony is very vague. At one point, he indicated that the cessation which, according to other evidence, occurred on July 14 was caused by the Union's picketing. However, even from the context of his evidence as a whole it is apparent that that was not the fact (lie described the disputes with the Teamsters). Although stating on direct examination that lie had been at the construction site when intermediate cessations occurred, lie admitted upon later interrogation that lie (lid not "remember being up there myself" between the two occasions. Downs, whose testimony is vague at many points and who refused to answer questions upon cross-examination until directed by the under- signed to do so, similarly gave generalized testimony concerning such intermediate cessations of work. Downs was extremely vague as to dates, and it is uncertain from his testimony whether one occasion when work stopped (ascribed by him to the Union's picketing) was the first time when the Teamsters picketed. The Examiner regards Downs as an unreliable witness. Even Downs described the two occasions when the Teamsters picketed and the men quit, but he did so only under cross-examination. Significantly, his testimony appeared to be much more certain and concrete with respect to these occasions than the other significant features of his evidence. DEENA ARTWARE, INCORPORATED 801 here involved. There is also no credible evidence that the Union or the strikers '06 induced or encouraged the construction employees to strike , cease work, or refuse to render services .357 5. Conclusions with respect to the claim of misconduct In the main, the Examiner's concluding findings on the Respondent's claim of misconduct, as well as the applicable legal principles , have been set out above. Reference should be made, however, to several other features of the claim. Sixty-six striking employees are involved in the question of reinstatement. The status of the nine who were discharged on April 22 is not in issue. Ignoring for the moment the fact that there is no credible evidence of misbehavior by any of the 66 striking employees of sufficient significance to preclude the reinstatement .of any, it may be pointed out that a substantial number are not identified in the record by name' as even being in the vicinity of the plant at any time during the strike after they were paid on May 26, let alone as taking part in any strike activity. The only identification of some is in connection with testimony that they were in the vicinity of the plant on one or more occasions, and the specific reference to a substantial nuneber of these occurs in conjunction with evidence adduced by the General Counsel to the effect that such individuals ,engaged in peaceful picketing on one or more occasions during the strike.16' With respect to those identified , whether by the General Counsel 's evidence or that of the Respondent , there is no credited evidence 'B0 that they engaged in legally significant misconduct 3°' 169 Actually , there is no evidence that any of the strikers, except Hines , Rushing, DePriest, Berry , and Phelps ever picketed past the construction site. No other picketers are identified by name in the record . The General Counsel produced the evidence of Hines, Rushing, and Berry that they had engaged in such picketing. The General Counsel also produced 23 of the strikers who testified affirmatively that they had not picketed past the construction site. 161 The findings made above are not intended to intimate that , under the facts in this case, such inducement or encouragement , as well as the picketing involved, would have been unlawful , whether or not the Union had been certified . No determination of that question is required here. 16s These are Barker , D. Carter, S. Carter, Crane, J. Green, Halstead , R. Harris, G. Harris, J. Joyner , Klein , Leidicker, Ligon , Mitchuson , Rasche, Taylor, W. Thompson, Holdman, Wade. C. Thompson , K. Joiner, Parks, Hill, and LeNeave. 169 See testimony of Burns, Dykes , Farley, Hardeman , Mallory , M. Meeks, McDonald, Beeves, Seavers, G. Walker, P. Harris , and Berry . The General Counsel also produced the testimony to the same effect of many other employees who had been identified by the Respondent's proof in one connection or another ( mainly that they were in the vicinity of the plant ) but against ,whom there was no allegation of misconduct. 160 As indicated earlier , the only credited evidence of statements which fall into the general classification of threatening remarks directed at specific persons consists of Medley's statement to Mrs. Oliver on May 27 and that of Brooks, Phelps and DePriest to Mrs. Wyatt on May 26, but these do not constitute misconduct sufficiently serious to bar the reinstate- ment of the employees concerned . As to the Tucker-Tyree and Kelley-Cox incidents, Mrs. Tyree was the aggressor in her tussle with Mrs. 't'ucker , and the evidence does not pre- ponderantly establish that Mrs. Kelley wilfully kicked Mrs. Cox. 101 See, among other cases, N. L. R. B. v. Fansteel Metallurgical Corporation., 306 U. S. 240; N . L. R. B. v. Ohio Calcium Co., 133 F. (2d) 721 (C. A. 6) ; N. L. R. B. v. Stackpole Carbon Co ., 105 F . ( 2d) 167 ( C. A. 3), certiorari denied , 308 U. S . 605 ; Republic Stecl Corp. v. N. L. R. B ., 107 F . ( 2d) 472 ( C. A. 3), modified as to other provisions, 311 U. S. 7; Berkshire Knitting Mills v . N. L. R. B ., 139 F. ( 2d) 134 ( C. A. 3), certiorari denied, 322 U. S. 747. There is an undefined implication ( it is not expressly argued ) in the affirmative defenses that conduct prohibited to "a labor organization or its agents " by Section 8 (b), when committed by an individual striker, precludes his reinstatement , The doctrine that 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There is some intimation (not expressly stated ) in the Respondent's brief that conduct such as Bennett's may affect the status of the striking employees. Ignoring the question whether such conduct, if committed by an employee, would be sufficiently grave to bar reinstatement, it may be observed that the doctrine of guilt by association is as repugnant to a proper application of the Act as it is to any other field of American law."2 To sustain a contrary view would mean that a sufficiently serious act of misconduct by a hot-head or other misguided indi- vidual among a group of strikers would be sufficient to nullify the policies of the Act with respect to all other strikers not involved in the misconduct. To adopt the legal principle suggested would mean the emasculation of much of the remedial force of the Act and serve as a standing invitation to provocative conduct by those in a position to benefit from it. Finally, despite the voluminous record, the fact that emerges from it is a very simple one, and that is that the strike, its prolongation, and its consequences were essentially the product of the Respondent's disregard of its statutory obliga- tions. The policies of the Act can only be effectuated by a restoration of the employees to their former or equivalent positions, with appropriate reparation of back wages, and by a direction to the Respondent to bargain in good faith with the Union and to cease and desist from acts of interference with the em- ployees in their exercise of their statutory guarantees 3" unprotected conduct will preclude reinstatement does not hinge on the amendments effected by the Labor Management Relations Act, 1947, for the principle was developed before its passage. Speculation is unnecessary as to effect of Section 8 (b) on the formula heretofore applied by. the Board in determining the types of misconduct which will bar reinstatement. Remarks such as those involved in the Oliver-Medley and Brooks-Phelps -DePriest-Wyatt incidents are of too isolated and insubstantial a nature to constitute restraint or coercion. 162 N. L. R. B. v. Ohio Calcium Co., 133 F. ( 2d) 721 ( C. A. 6) ; Republic Steel Corpora- tion v . N. L. R. B., 107 F. (2d) 472 (C. A. 3), enforced as modified , 311 U. S. 7; Matter of El Paso Electric Company, 13 N. L. R. B. 213, 4 L. R. R. M. 285, enforced 119 F. (2d) 581 (C. A. 5) ; N. L. R. B. v. Mt. Clemens Pottery Co., 147 F. (2d) 262 (C. A. 6). It is true that such authorities as the Ohio Calcium, Republic Steel and Mt. Clemens Pottery cases invoke Section 6 of the Norris -LaGuardia Act (29 U. S. C. 106) which provides, among other things, that members of a union shall not be held responsible for the unlawful conduct of the organization 's officers , agents or other members "except upon clear proof of actual participation in, or actual authorization of, such acts ," while Section 2 (13) of the Labor Management Relations Act contains some modification of the Norris -LaGuardia Act. Section 2 (13) provides that "in determining whether any person is acting as an `agent' . . ., the question of whether the specific acts performed were actually authorized or subsequently ratified shall not be controlling ." However, the principle of the cited cases represents sound doctrine wholly aside from the Norris -LaGuardia Act, if only for the reasons stated in the body of this report, and there is nothing in the decisions to indicate that the same result would not have been reached without the aid of that statute. Moreover, the purpose of Section 2 (13) is clearly reflected in its legislative history. Its object is to make unions (as well as employers ) responsible for their agents' unfair labor practices . Most of the significant Congressional references to the section, prior to its enactment, so state its purpose to be. See House Conf. Rept . on H. R. 3020, p. 36 (80th Cong.) ; and remarks of Senator Taft, 93 Cong. Rec . 4142, 4561, 6599, 7000; of Senator Thomas, 93 Cong. Ree . 4895-96 ; and of Senator Pepper, 93 Cong. Rec. 6608, 6680. There is no intimation at any point that the definitional standard of agency was designed to saddle an innocent employee with the misconduct of another for the purposes of the application by the Board of the broad remedial power of reinstatement provided by Section 10 (c). 163 The complaint alleges a violation of Section 8 (a) (1) on which no finding has been made above. That allegation is to the effect that the Respondent "expressed ( its) intention not to add to existing facilities in Paducah because of the Union, and ( threatened ex- pressly or by implication ) to remove the remainder of its operations from Paducah because of the presence and activities of the Union." In support of the allegation , the General Counsel introduced a published clipping (admitted by stipulation ) from a Paducah news- DEENA ARTWARE, INCORPORATED 803 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 to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY In the opinion of the Examiner, the evidence reveals an underlying opposi- tion by the Respondent to the policies and objectives of the Act. The under- signed finds that the unfair labor practices disclosed by the record are closely related to other unfair labor practices proscribed by the statute, and that a danger of their commission in the future is to be anticipated from the conduct of the Respondent in the past. In order to make effective the interdependent guarantees of Section 7, it is necessary, therefore, that the undersigned recom- mend to the Board that its order be made coextensive with the threat of future disregard by the Respondent of its statutory obligations. Having found that the Respondent has engaged in unfair labor practices violative of Sections 8 (a) (1), (3), and (5) of the Act, the Examiner will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent has discriminatorily discharged and failed and refused to reinstate the employees named below, the Examiner will recom- mend that the Respondent offer the named employees immediate and full rein- statement to their former or substantially equivalent positions'' without preju- dice to their seniority and other rights and privileges and to make them whole for any loss of pay they may have suffered, by reason of the Respondent's discrimination against them, by payment to each of them of a sum of money equal to the respective amounts which they would normally have earned as wages from May 29, 1948, to the date of the offer of reinstatement, less their respective paper dated July 22, 1948. It was stipulated that the clipping "substantially sets forth remarks made by" Weiner to a reporter for the paper. The sum of his statement is an announcement that, because of the Union's activities and those of the striking employees as described by him, he was discontinuing the construction of the additional plant facili- ties, moving the construction materials to another community where he intended to erect a factory, and was abandoning plans "to move our entire operation over a period of time into Paducah." Weiner also asserted, "I will keep operating here (in Paducah) what I have unless hazards and difficulties are thrown in my way." The statement expressly or impliedly imputes misconduct to the Union, its representatives and the striking em- ployees and, in essence, assigns that as the reason for the change of production plans. Weiner's relevant allegations of misconduct are unsupported by the credible evidence. Moreover, within the context of the actual facts, the intimation that he would abandon the Paducah factory entirely If "hazards and difficulties are thrown in my way" can only be construed as a meaningful threat of reprisal for future union activities by the plant's employees. In the light of the findings made in this report, Weiner's published statement must be regarded as a violation of Section 8 (a) (1). See, among other cases, N. L. R. B. v. A. Sartorivs and Co., Inc., 140 F. (2d) 203 (C. A. 2) ; Berkshire Knitting Mills v. N. L. R. B., 139 F. (2d) 134 (C. A. 3), certiorari denied, 322 U. S. 747; N. L. R. B. v. Winona Textile Mills, 160 F. (2d) 20 (C. A. 8). 164 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, 17 L. R. R. M. 255. 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD net earnings during such period.'ss The employees referred to in this para- graph are.the following: Tilmon Barker Kenneth Johnson_ Frances G. Taylor Elizabeth Boyd James L. Joyner Willard Thompson Alice Brian Opal Keeling Loretta Tucker Frank Burns Alice Kelley Vera Mae Tucker Elsie Calhoun Clayton Klein Margaret Holdman Thomas Carper Annette Leidicker Beulah Wade Dorris Carter Martha Julia Ligon Geneva Walker Sadie Lee Carter Grace Mallory Zettie T. Walker James Coleman Marie Meeks Dorothy Branton Warren Crane Charles Mitchuson Charles Thompson. Ila Eveline Dick Harold Eugene Medley Sam Hines, Jr. Edward Dykes Trixie McDonald Pauline Harris Robbie Ellington Guy Phelps Gordon Harris Ruth Farley Frances Rasche Dorothy Ann Cherry Pauline Few Gertrude Rutherford Edna Grief Lucille Frymire Thelma Ray Ava Nell Plum lee William Girten Eddleman Reeves Kelley Joiner Christine Green Leona Ringstaff. (Stokes) Marvin McCoy James R. Green Lucille Rudd Cecil Parks Eugene Halstead Ray Rushing Lee G. Berry George A. Hardeman Emma Alice Seavers Florine Hill Rossie Harris John L. Steger Charles LeNeave Having found that the Respondent has failed and refused to bargain collec- tively with the Union as the exclusive representative of its employees in an ap- propriate unit, and, since such failure and refusal constitute a refusal to bargain collectively within the meaning of the Act, the Examiner will recommend that the Respondent, upon request, bargain collectively with the Union as the representa- tive of such employees, with respect to their rates of pay, wages, hours of em- ployment, and other conditions of employment, and, if an agreement is reached, to embody its terms in a signed agreement. The discriminatory discharge of, and failure and refusal to reinstate, the em- ployees named above ; the refusal to bargain collectively with the Union, as described above; and the Respondent's threats and acts of reprisal against its employees because they exercised rights guaranteed to them by Section 7 of the Act, all constitute interference with, and restraint, and coercion of, the employees in the exercise by them of the rights so guaranteed. Having found that the Respondent has discriminatorily discharged and failed and refused to reinstate the employees named above ; that it has refused to bargain collectively with the Union; and that the Respondent has threatened its employees with reprisals, and has committed acts of reprisal against them, because they exercised rights guaranteed to them by the Act, the Examiner will recommend that the Respondent be directed to cease and desist from interfering with, restraining, or coercing its employees, in any manner, in the exercise of their right to self-organization, to form, join or assist labor organizations, to join or assist the United Brick and Clay Workers of America, affiliated with the American Federation of Labor, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to. refrain from any or all-of such activities, except to the '' Matter of Crossett Lumber Co., 8 N. L. R. B. 440, 2 L. R. R. M. 483. DEENA ARTWARE, INCORPORATED 805 extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act, as guaranteed by Section 7 thereof. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, the undersigned makes the following: CONCLUSIONS or LAW 1. United Brick and Clay Workers of America, affiliated with the American Federation of Labor, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the Respondent's production and maintenance employees at its plant in Paducah, Kentucky, exclusive of all guards and professional and supervisory employees, as defined in the Act, and exclusive of office and clerical employees, constitute a unit appropriate for the purpose of collective bargaining, within the meaning of Section 9 (b) of the Act. . 3. United. Brick and Clay Workers of America, affiliated with the American Federation of Labor, was, on March 17, 1.948, and at all times thereafter has 'been, the exclusive representative of all the employees in the aforesaid appropri- ate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By failing and refusing on various occasions during the period from and after April 8, 1948, to bargain collectively with United Brick and Clay Workers of America, affiliated with the American Federation of Labor, as the exclusive representative of its employees in the appropriate unit, the Respondent has engaged in, and is engaging in, unfair labor practices, within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating in regard to the tenure of employment of the employees named below, the Respondent discouraged membership in United Brick and Clay Workers of America, a labor organization within the meaning of the Act, in violation of Section j8 (a) (3) of the said Act. The employees referred to in_ this paragraph are the following: Tilmon Barker George A. Hardeman Lucille Rudd Elizabeth Boyd Rossie Harris Ray Rushing Alice Brian Kenneth Johnson Emma Alice Seavers Frank Burns James L. Joyner John L. Steger Elsie Calhoun Opal Keeling Frances G. Taylor Thomas Carper Alice Kelley Willard Thompson Dorris Carter Clayton Klein Loretta Tucker Sadie Lee Carter Annette Leidicker Vera Mae Tucker James Coleman Martha Julia Ligon Margaret Holdman Warren Crane Grace Mallory Beulah Wade Ila Eveline Dick Marie Meeks Geneva Walker Edward Dykes Charles Mitchuson Zettie T. Walker Robbie Ellington Harold Eugene Medley Dorothy Branton Ruth Parley Trixie McDonald Charles Thompson Pauline Few Guy Phelps Sam Hines, Jr. Lucille Frymire Frances Rasche Pauline Harris William Girten Gertrude Rutherford Gordon Harris Christine Green Thelma Ray Dorothy Ann Cherry James R. Green Eddleman Reeves Edna Grief Eugene Halstead Leona Ringstaff (Stokes) Ava Nell Plumlee 867351-50-vol. 86-52 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Kelley Joiner Cecil Parks Florian Hill Marvin McCoy Lee G. Berry Charles LeNeave 6. By interfering with, restraining, and coercing its said 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 (a) (1). 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS On the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in the case, the Examiner recommends that Deena Artware, Incorporated, of Paducah, Kentucky, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging membership of its employees in United Brick and Clay Work- ers of America, affiliated with the American Federation of Labor, or any other labor organization, by discriminatorily discharging or failing or refusing to re- instate its employees or in any other manner discriminating against them in regard to their tenure or any other term or condition of employment ; (b) In any manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to join or assist United Brick and Clay Workers of America, affiliated with the American Federation of Labor, 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, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organiza- tion as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. (c) Refusing to bargain collectively with United Brick and Clay Workers of America, affiliated with the American Federation of Labor, as the exclusive bargaining representative of all of the Respondent's production and maintenance employees at its Paducah, Kentucky, plant, exclusive of all guards, profes- sional and supervisory employees, as defined in the Act, and exclusive of office and clerical employees. 2. Take the following affirmative action which the Examiner finds will effectu- ate the policies of the Act : (a) Offer to the persons named below immediate and full reinstatement to their former or substantially equivalent positions without prejudice to their seniority or other rights and privileges, and make each of them whole for any loss of pay they may have suffered by reason of the Respondent's discrimina- tion against them by payment to them, respectively, of a sum of money equal to that which they normally would have earned as wages from May 29, 1948, the date of the Respondent's discrimination against them, to the date of the offer of reinstatement, less their net earnings, if any, incurred by them during such period. The persons referred to in this paragraph are the following: Tilmon Barker Frank Burns Dorris Carter Elizabeth Boyd Elsie Calhoun Sadie Lee Carter Alice Brian Thomas Carper James Coleman DEENA ARTWARE, INCORPORATED 807 Warren Crane Martha Julia Ligon Vera Mae Tucker Ila Evaline Dick Grace Mallory Margaret Holdman Edward Dykes Marie Meeks Beulah Wade Robbie Ellington Charles Mitchuson Geneva Walker Ruth Parley Harolk Eugene Medley Zettie T. Walker Pauline Few Trixie McDonald Dorothy Branton Lucille Frymire Guy Phelps Charles Thompson William Girten Frances Rasche Sam Hines, Jr. Christine Green Gertrude Rutherford Pauline Harris James R. Green Thelma Ray Gordon Harris Eugene Halstead Eddleman Reeves Dorothy Ann Cherry George A. Hardeman Leona Ringstaff (Stokes) Edna Grief Rossie Harris Lucille Rudd Ava Nell Plumlee Kenneth Johnson Ray Rushing Kelley Joiner James L. Joyner Emma Alice Seavers Marvin McCoy Opal Keeling John L. Steger Cecil Parks Alice Kelley Frances G. Taylor Lee G. Berry Clayton Klein Willard Thompson Florine Hill Annette Leidicker Loretta Tucker Charles LeNeave (a) Upon request, bargain collectively with the United Brick and Clay Workers of America, affiliated with the American Federation of Labor, as the exclusive representative of the employees in the appropriate unit described above, with respect to their rates of pay, wages, hours of employment, and other conditions of employment, and, if an agreement is reached , to embody it in a signed agreement ; (b) Post at its plant in Paducah, Kentucky, copies of the notice attached to this Intermediate Report marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material ; (c) Notify the Regional Director for the Ninth Region in writing, within twenty (20) 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 twenty (20) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Director in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board , Washington 25, D. C., an original and six copies of a state- ment in writing setting forth such exceptions to the Intermediate Report and Recommended Order 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 six copies of a brief in support thereof ; and any party may, within the same period , file an original and six copies of a brief in support of the Intermediate Report and Recommended Order. Immediately upon the filing of 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeographed, and if mimeographed shall be double-spaced. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.S5. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations, the findings, conclusions, recommendations and recom- mended order herein contained shall, as provided in Section 203.48 of said Rules and Regulations, be adopted by the Board and become its findings, conclusions and order, and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 11th clay of May 1949. HERMAN MARX, Trial Examiner. APPENDIX "A" NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT discourage membership by our employees in United Brick and Clay Workers of America, affiliated with the American Federation of Labor, or in any other labor organization, by discriminatorily discharging or failing or refusing to reinstate them, or in any other manner discriminating against them in regard to their tenure or any term or condition of employment. WE WILL NOT in any manner interfere with, restrain, or coerce our employ- ees in the exercise of their' right to self-organization, to form, join or assist labor organizations, to join or assist United Brick and Clay Workers of America, affiliated with the American Federation of Labor, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL BARGAIN collectively with United Brick and Clay Workers of America, affiliated with the American Federation of Labor, as the exclusive representative of all employees in the bargaining unit described herein with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an agreement is reached, embody it in a signed agree- ment. The bargaining unit is : All our production and maintenance employees at our plant in Paducah, Kentucky, exclusive of all guards, professional and supervisory employees, as defined in the Act, and exclusive of office and clerical employees. WE WILL OFFER to the employees named below immediate and full reinstate- ment to their former or substantially equivalent 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. DEENA ARTWARE, INCORPORATED 809 Tilmon Barker Kenneth Johnson Frances G. Taylor Elizabeth Boyd James L. Joyner Willard Thompson Alice Brian Opal Keeling Loretta Tucker Frank Burns Alice Kelley Vera Mae Tucker Elsie Calhoun Clayton Klein Margaret Holdman Thomas Carper Annette Leidicker Beulah Wade Dorris Carter Martha Julia Ligon Geneva Walker Sadie Lee Carter Grace Mallory Zettie T. Walker James Coleman Marie Meeks Dorothy Branton Warren Crane Charles Mitchuson Charles Thompson Ila Eveline Dick Harold Eugene Medley Sam Hines, Jr. Edward Dykes Trixie McDonald Pauline Harris Robbie Ellington Guy Phelps Gordon Harris Ruth Farley Frances Rasche Dorothy Ann Cherry Pauline Few Gertrude Rutherford Edna Grief Lucile Frymire Thelma Ray Ava Nell Plumlee William Girten Eddleman Reeves Kelley Joiner Christine Green Leona Ringstaff (Stokes) Marvin McCoy Tames R. Green Lucille Rudd Cecil Parks Eugene Halstead Ray Rushing Lee G. Berry George A. Hardeman Emma Alice Seavers Florine Hill Rossie Harris John L. Steger Charles LeNeave DEENA ARTWARE, INCORPORATED, Employer. Dated ---------------------------- BY --------------------------------- (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.