Celanese Corp. of America

664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS or LAW 1. American Federation of Labor and Local 396, International Chemical Workers Union, A. F. L., are labor organizations within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employment of the employees named above, the Respondents have engaged and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exer-` cise of the rights guaranteed in Section 7 of the Act, the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. All employees of the Respondents at their operation in El Dorado, Arkansas, excluding supervisory employees, watchmen, and guards, as defined in the Act, and excluding all office and clerical employees, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. American Federation of Labor on and after August 21, 1949, and Local 396, International Chemical Workers Union, A. F. L, at all times on and after ,October 15, 1949, have been the exclusive bargaining representative within the meaning of Section 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 6. By refusing to bargain collectively with American Federation of Labor and/or Local 396, International Chemical Workers Union, A. F. L., the Re- spondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] CELANESE CORPORATION OF AMERICA and OIL WORKERS INTERNATIONAL UNION, CIO. Case No. 16-CA-95. July 27, 1951 Decision and Order On December 28, 1950, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had not engaged in the unfair labor practices alleged in the complaint and recommending that the complaint be dismissed, as set forth in the copy of the Intermediate Report attached hereto. Thereafter the Union, Oil Workers International Union, CIO, filed exceptions to the Intermediate Report and a supporting brief, and the Respondent filed a reply brief. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- 95 NLRB No. 83. CELANESE CORPORATION OF AMERICA 665 mediate Report, the exceptions, the .briefs, and the entire record in the case; and. hereby adopts the findings, conclusions, and recom'- mendations of the Trial Examiner with the additions and modifica- tions hereinafter set forth. 1. The Board agrees with the Trial Examiner's conclusion that the Respondent bargained in good faith with the Union from June 1948 through July 24, 1948, when the parties, having-reached all impasse 'oii the subject of wage rates, broke, off their bargaining negotiations.' 2. The Board also agrees with the Trial Examiner's finding and conclusion that the strike of the Respondent's employees, which be- :gan on July 26, was called by the Union to enforce its bargaining demands, and that the strike began as an econoliic strike., For the 'reasons stated below, the Board also conchldes,. like the Trial Ex :alniner, that the strike at all times thereafter continued as an eco- nomic strike and was not converted, as the complaint alleges, into .all unfair labor practice strike by the Respondent's conduct during the strike. As set forth in the Intermediate Report, the strike that began on .July 26 caused a complete shutdown of the Respondent's plant. Thereafter, prompted ' bybona fide business considerations,' the Re- 'spondent, on or about August 11, decided to resume its operations. Accordingly, on August 12, the Respondent sent a copy of the follow- ing letter to each of its production, laboratory, and utility employees: The plant is being opened Monday, August 16 to Production, Laboratory and Utility employees of the Chemeel Plant. Re- turning employees will receive their old rate plus 15 cents per hour offered by Management in the bargaining negotiations. with the Union. As set forth in the Intermediate Report, between June 17 and July 24, 1948, the Respondent and the Union held about 24 bargaining conferences, and reached tentative ;agreement on the terms of 15 of the 20 articles contained in the Union's original contract proposals. -Many of the articles agreed upon represented substantial concessions by the Respondent. The Trial Examiner found that when the parties reached their bargaining impasse on -July 24, the Union was the first to announce that it was withdrawing its assent'to the 15• articles upon which the parties had previously achieved tentative agreement . The Board .adopts this finding by the Trial Examiner and holds that the Respondent was thereby relieved 'of whatever obligation it may have been,under to adhere to its previously made: bargaining concessions . Cf. Heider Manufacturing Company, 91 NLRB 1185. The Board's finding and holding in this respect makes it unnecessary for the Board to pass upon the 'Trial Examiner's alternative position and reasoning that, under the circumstances of-this case, the Respondent was free to initiate the t'ithdrawal from the tentative bargaining commitments. In'addition. the record establishes, and the Board finds, that by the end of. the bargaining conference held on September 0-4, the Respondent had affirmed its willing- ness'to'adhere to the concessions andtentative commitments it had made during the June- July 24 bargaining sessions . - - ' 2 The Respondent was committed to deliver a shipment of formaldehyde to a ship scheduled to dhck in a Texas port. Failure on the pkrt of the Respondent'to meet this commitment promptly would have subjected it to heavy demurrage charges. . 666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Employees returnili-'will be reinstated to their old positions with the same privileges, rights .and 'rules as iir>'effect prior to. the `strike. Employees will report to Main Gate where the 'badges' with the new identification system will be issued. Employees will clock in as usual. Questions concerning these matters may be referred to the Celanese Information Center.in rooms 3 aiid 4 of the Moeibe Michalk building in Bishop or by calling Bishop phone num- ber 200. Substantially ' all the information contained in this letter was also brought to the attention of the Respbnderit's maintenance employees through a series of large advertisement's which the Respondent placed in local newspapers. The Respondent also announced through the local newspapers that after August 20 it would hire new' employees to replace striking employees who did not return, to work, and .that thereafter the striking - employees -would be taken back so long as vacancies existed. As is also set forth in the Intermediate Report, the General Counsel introduced evidence showing'that on 11 occasions during the course of the strike, supervisors orally solicited some 14 striking. employees to return to work .3 Most of such 'incidents involved bare invitations to return' to work;. other incidents involved references to the wage increase that had been offered to the Union before negotiations had been broken off, and to the fact that the Respondent,had reclassified certain jobs, 'acid. had thereby increased the pay of the job incum- bents.' The General Counsel and the Union contend that the foregoing'acts of solicitation' of strikers by the Respondent violated the Act, and therefore'coriverted the strike; of the Respondents' employees ' intoa'r unfair labor practice strike. The Board agrees with the Trial Exam- iner'''s finding ,that the Respondent's conduct, in this respect; didt not' -violate the Act. In the recent Tea as Company c'ase'-,'1` the Board considered an al= most identical' factual situation involving individual solicitation of 3 Most, of such evidence was contradicted by testimony intr oduced by the, Respondent. The Trial Eva.miner disrei.tided the Counsel's, testiiiiony. with respect to one such incident ,on the;. ground , that the .evidence „supporting r li t' was incredible, but he failed to resolve.;a, number of outstanding credibility . issues : affecting certain of the other alleged; Incidents ,,, , In the view we take it is, unnecessary to. resolve such issues of credibility , and we assume for the purposes of'ar ument that the incidents occurred as related by the Gen= eral Counsel's witnesses, ,. . 'GThe,,Trial Examiner -found , and the Board agrees that the organizational Ichanges1 made by the Respondent during the,course , of the, strike ywereFnot accomplished to thwart union activities , and that the Respondent,by. effecting 'such changes did not violate the Act.' .5 93 NLRB 1358. CELANESE CORPORATION OF AMERICA - 667 strikers to return to work. It there noted that in all cases in which such solicitation was found to have been violative of the. Act; one or both' of the.followiiig factors had been present: (1) The solicitation .constituted an integral part of a pattern of illegal opposition to the purposes of the Act as.evideiiceil by the Respondent's entire course of conduct; and (2) the solicitation was conducted under circum- stances, and in a manner, reasonably calculated to undermine the strikers' collective bargaining representative, and to demonstrate that the employer sought individual rather than collective bargaining. As,in The Texas CovnpanV case, the Board is unable to fold either of such factors present in the instant case. The record shows that the Respondent has had a history of har- monious relations both with the Union in the plant here involved, and with other labor organizations representing its employees in its many other plants. During the period of the negotiations with the Union in June and July 1948, the Respondent, as we have found,' bargained in good. faith with the Union, making substantial conces- sions... We find also that none of the Respondent's conduct during the strike of its employees was violative of the Act. The Respondent's decision to reopen its plant while the strike con- tinued was motivated by business considerations alone. To imple- ment-that decision the Respondent made known its intentions to the strikers, and invited their return to work. The letters and the adver- tisements by which such invitations were extended did not disparage, the Union, nor did they threaten the stripers or unlawfully promise them'benefits to induce them to return to work; 6 nor did the state- ments by the Respondent's supervisors to the strikers, disparage the Union or contain such threats or unlawful promises. Thus, there was nothing in such letters; advertisements, or statements indicating that the Respondent was seeking to circumvent the Union,. or other- wise undermine its prestige as the bargaining, representative of its employees. As the Board said both in the Texas Company case, supra, and in the earlier Times Publishing Company case,' which also involved a -strike situation sim-ilar.to.the one ]sere involved, "to penalize this employex for proffering the jobs once again economic -strikers on the same terms to be offered replacements, would penalize open dealings and invite silent displacement of striking employees; a, result which The Trial Examiner found , and the Board agrees , that as the parties had reached a good faith bargaining impasse over wage rates, the Respondent ,`under the circumstances of this case, was privileged to offer returning strikers the same wage increase that ithad offered the Union before negotiations had been broken off. W. W. Cross d Company, Inc.; 77 NLRB 1162 : Exposition Cotton Mills, 76 NLRB 1289 . See N. L. R.. B. v: Crompton-highland ,11 ills, Tnc.,.5;7 U. S. 217, 224.. ' " 7 72 NLRB 676, 684. 668" DECISIONS OF NATIONAL LABOR- RELATIONS BOARD seems to us more likely to be productive rather than. preventive of in- dustrial strife and thus not to effectuate the purposes of the Act." Accordingly, in view of the foregoing and upon the'entire record in the case, the Board unanimously finds that this Respondent did not violate the Act by soliciting its striking employees to return to work. As the Board also agrees with the Trial Examiner's conclusions that the Respondent did not violate the Act during the strike by its other conduct specified in the complaint and considered in the Inter- mediate Report, it follows, therefore, that the economic strike of the Respondent's employees was not converted into an unfair labor prac- tice.strike by the Respondent's activities. 3. For the reasons stated below, Chairman Herzog and Jlembers Reynolds and Styles also agree with the Trial Examiner's conch sioh that the Respondent did not violate Section 8 (a) (5) of the Act in October 1948 after the termination of the strike, when the Respondent asserted that the Union no longer represented its employees, and for that reason refused to' meet acid bargain with the Union.8 The Respondent opened the Bishop; Texas, plant, involved' ill this case, in 1945. Following •a Board-conducted consent election, the Union was certified as bargaining representative in December 1945. In 1946, and again, in 1.947, the Respondent- and the Union signed _1-year bargaining contracts. - As the Board unanimously found above, and as -the Intermediate Report sets forth in detail, from early Juice through July 24, 1948, the Respondent bargained in good faith with the Union concerning the renewal of their.1947 collective bargaining agreement. When the negotiations reached an impasse over wage rates, 9 they were broken off. To enforce its wage demands, the Union, on July 26, called a strike of the Respondent's employees, and picketing thereupon began at the Respondent's plant. The strike caused the Respondent to shut down its plant completely. On August 12, 'the -Respondent announced the reopening of the plant, and; as the Board found above, lawfully began to solicit its striking employees to return to work, promising them the wage in- 6eases and adjustments it had offered the Union before bargaining negotiations had ended. The Respondent continued such solicitation through August 20, announcing that after that date it would begin to hire replacements for strikers who did not return to work. . g Members Houston and. furdock dissent from this finding for the reasons stated in their separate opinion attached hereto. 9 The Union was asking for an over-all increase of 30 cents per hour : the Respondent originally offered' an increase of 13 cents, together with several individual adjustments before negotiations were broken off' the Respondent had increased its offer to 15 cents plus the adjustments; CELANESE CORPORATION OF AMERICA 669 On August 13, the plant, manned exclusively by supervisory per- sonnel, again began to operate. On August 16, the first group of strik- ing -employees went through the union picket lines and returned to work. Other strikers followed on succeeding days. On August 21, the Respondent, as it had announced, began to hire replacements to fill the vacancies caused by striking employees who did not return to work. The replacements were offered permanent jobs, and-the Board unanimously agrees with the Trial Examiner's conclusion that the replacements thus hired were permanent replacements for economic strikers, and that the striking employees thus replaced thereby lost their right to reinstatement.10 The return of the strikers and the hir- ing of replacements continued into September; by September 27, the plant was operating at full capacity. ' - , On September 3 and 4, the Union and the Respondent conferred in an effort to settle the differences that had stalemated their earlier ,,negotiations. The effort, however, proved fruitless. On September 6, the Union wrote to the Respondent.as follows : Please be advised that at a meeting of this Local Union on September 5, 1948. the offer submitted through the Workmen's Committee and received from you at a meeting in Corpus Christi, Texas September 4, 1948 has been rejected unanimously. At the aforementioned meeting a resolution was adopted, also unanimously, we are respectfully submitting copy of same. Be it resolved by each and every one of us that, we refrain from working foror entering, upon the property of, for personal gain, the Celanese Corp..until such time as this strike shall be called off by the majority of this membership. On September 14, the Union again wrote to the Respondent as follows : We are taking the liberty by this means of bringing before you the position of your employees, comprising the bargaining unit which is represented by this union at Celanese Corporation plant at Bishop; in our present dispute. May we point out the .most serious aspect of this situation in (sic) that a sizable number of employees, especially operators, trained in the operation peculiar to the Chemcel plant have termi- nated employment and acquired positions elsewhere, where con- ditions and wages are not only-above the present rates, but above the potential rates of the plant. 11 See N. L. R. R. v. .Mackay Radio, & T.elegraph, Company, 304 U. S., 3M,345.,. 670 DECISIONS OF' NATIONAL LABOR RELATIONS BOARD . Further, a past majority of, the employees on strike will, even though it entails moving their families.to other localities, accept employment with other companies about to begin operations in the Gulf coast area to the mutual detriment-of the company and employees in event an early settlement is not effected-.. It is 'thus apparent that the pliint will revert to a status not unlike the one existent at the beginning' of plant operations at Bishop. We are of the opinion that Ave can accurately state, unless a speedy settlement of this- dispute is not forthcoming, at least 80% of the aforementioned personnel will leave the employment of Celanese. If you deem it necessary we are in a position to submit signa-. tures of these employees. who are, in complete accord with the aforegoing. . f - On September 16, the Union, with neither prior. announcement nor 'subsequent explanation, withdrew -the picket line at the Respondent's plant; and, on 'October 4,- the Union notified the Respondent that it had terminated the strike as of September 30. Oil October 5, the Uhion, by letter, requested a bargaining con- ference with the Respondent. 'On October 8,.the Respondent. replied that its plant was "operating- at 100 percent capacity" and that "to the best of our 'knowledge and belief, the Union does not represent any of the employees now Working in this plant." There were no further exchanges between the Union and Respondent, and since October 8, 1948, the Respondent has not bargained with the Union. On October 8, 1948, when the Respondent questioned the Union's majority status, the Respondent was employing 286 employees in the bargaining unit-a number considerably less than the 691 production and ihain'tenance employees that staffed its plant on July 26 when -the strike began. 'In large part'this reduction 'in employment resulted 'from' the factz thdt during the course of -the strike, the Respondent 'had made-2 major changes in its method of operations, which, in:agree- ment with the. Trial Examiner, the Board unanimously finds were lawfully effected for nondiscriminatory reasons: (1) It had changed its tables'of 'organization'-in, the light of improved operating methods, and thereby reduced the number 'of production.and maintenance jobs necessary for-the-staffing of the plant.; and (2) it had hired:aliJnde pendent contractor, Brown Root, with personnel of its .own, to _perfof-m miscellaneous maintenance and repair work that had pre- viously been performed by the Respondent's employees 11 As a result " As the Respondent had the privilege of permanently replacing its economic strikers in order to 'resume production , it'also was privileged 'to difect such' replacements by means of the hiring of an independent contractor. CELANESE CORPORATION OF AMERICA 671 of such changes, the Respondent on October 8 had a full complement of 286 employees in the bargaining unit.12 The record contains the following analysis of the sources from which these 286 employees (plus 24 supervisors) 13 were obtained: Number of strikers reemployed before September 16 (date on which the picket line was removed )____________________________________________ 160 Number of strikers reemployed September 16-October 8________________ 42 Total number of strikers reemployed___________________________________ 202 Number of replacements hired before October 8_________________________ 108 Total number of employees on October 8_______________________________ 310 The record does not show which, if any, of the approximately 52D employees who were members of the Union before the strike began, were among the group of returning strikers. The Trial Examiner found that the Union represented a majority of the Respondent's employees from the date of the Union's certifica- tion in 1945 until September 1948. Reasoning, however, that the time lapse of 3 years since the Union's certification had rendered "inapplicable" the presumption of continuing majority status, or that the presumption, if existent, had been "sufficiently rebutted" by the facts of the case, the Trial Examiner found that the Union's 1945 certification was "not valid" on October 5, 1948, when the Union made its demand. The Trial Examiner concluded that the Respondent did not violate Section 8 (a) (5) of the Act by its refusal to recognize or meet with the Union on and after October 8, 1948. Although we agree with the Trial Examiner's ultimate conclusion, we do not adopt all his reasoning. We believe that the answer to the.. question whether, the Respondent violated Section 8 (a) (5) of the Act on October 8 depends, not on whether there was sufficient evidence to rebut the presumption of the Union's continuing majority status or to demonstrate that the Union in fact did not represent the majority of the employees, but upon whether the Employer in good faith be- lieved that the Union no longer represented the majority of the em- ployees. The latter point was not considered by the Trial Examiner. It is appropriate, at the outset, to set forth the legal principles con- trolling in situations of this type, and particularly to indicate the relationship between the existence of a Board certificate and the right of an employer to question a union's majority in good faith. In the interest of industrial stability, this Board has long held that, >2 Fifty-six of the Respondent's maintenance employees returned to work when the plant resumed operation in August. These employees were assigned to work that was not performed by the employees of Brown & Root, the independent contractor. 13 As the data in the record with regard to the supervisors is not segregated from the data relating to the other returning strikers , the figures given in the text of necessity include both categories. Although the supervisors are not part of the unit, the number of them involved is not sufficient in any event to affect our conclusions herein. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD absent unusual circumstances, the majority status of a certified union is presumed to continue for 1 year from the date of certification.14 In practical effect this means two things : (1) That the fact of the union's majority during the certification year is established by the certificate, without more, and can be rebutted only by a showing of un- usual circumstances; and (2) that during the certification year an employer cannot, absent unusual circumstances, lawfully predicate a refusal to bargain upon a doubt as to the union's majority, even though that doubt is raised in good faith. However, after the first year of the certificate has elapsed, though the certificate still creats a pre- sumption as to the fact of majority status by the union, the presump- tion is at that point rebuttable even in the absence of unusual circum- stances. Competent evidence may be introduced to demonstrate that, in fact, the union did not represent a majority of the employees at the time of the alleged refusal to bargain. A direct corollary of this proposition is that after the certificate is a year old, as in cases where there is no certificate,'' the employer can, without violating the Act, refuse to bargain with a union on the ground that it doubts the union's majority, provided that the doubt is in good faith." This general approach was followed by the Board in the recent Atlanta Journal case, where the employer questioned the majority status of the union involved approximately 21/2 years after the union had been certified as bargaining representative. After finding that the union continued to represent the employees in question, the Board stated :17 "The sole issue, therefore, in determining whether the Re- spondent has refused to bargain within the meaning of the Act is 14 it. L. R. B. v. Grieder Machine Tool d Die Company, 142 F. 2d 163 (C. A. 6) ; N. L. R. B. v. Botany Worsted Mills, 133 F. 2(1 876 (C . A. 3) ; The Belden Brick Co., 83 NLRB 465 ; Shawnee Milling Company , 82 NLRB 1266, 1277 ; Lift Trucks Inc., 75 NLRB 998; Simmons Engineering Co., 65 NLRB 1373; Whittier Mills Co., at al., 17 NLRB 457, 463 , enforced 111 F. 2d 474 (C, A. 5). 11 Roanoke Public Warehouse, 72 NLRB 1281 . See B. A. Laboratories, Inc., 80 NLRB 625, 683. 16 Unlike our dissenting colleagues , we find nothing in the court decision in Whittier Mills, supra, which is inconsistent with this general approach to the problem. The language from that opinion quoted in the dissent is quite clearly directed to the question of the effect of a certificate in proving that a union in fact represented a majority at the time of the alleged refusal to bargain, for the company 's defense in that case was, as the court put it, "that the [union ] was not the lawful bargaining agency of the employees at the material dates." As we have stated above , we agree that a certificate continues even after the certificate year to create a presumption as to the fact of the union 's majority. But unless we are to hold , with our dissenting colleagues , that a good faith doubt of majority cannot be urged as a defense even after the certificate year we do not reach the issue of the fact of majority , and are thus not concerned with whether the presumption created by the certificate was rebutted by competent evidence, until we have first ascertained whether the doubt of majority was raised in good faith . And we find no reason in law or policy which calls for the conclusion that a good faith doubt of majority is no defense to a refusal to bargain after the certificate year any more than is true in cases where there is no certificate. 11 Atlanta Journal Company, 82 NLRB 832 , 833, decided by Members Houston, Reynolds, and Murdock. CELANESE CORPORATION OF AMERICA 673 whether , in spite of the fact that the Union was the exclusive repre- sentative of the employees at all times , the Respondent's ultimate refusal to bargain until the Union proved its majority was based on a good faith doubt of majority ." The same test was applied in the re- cently decided United States Gypsum 78 and Tooleraf t 19 cases, in which employers questioned the majority status of the unions involved more than a rear after their respective certifications.20 We thus conclude that in the instant case, as the Union's certificate was more than a year old at the time of the alleged refusal to bargain, the Respondent was free to decline to bargain with the Union if its doubt as to the Union 's majority was raised in good faith. By its very nature , the issue of whether an employer has questioned a union's majority in good faith cannot be resolved by resort to any simple formula. It can only be answered in the light of the totality of all the circumstances involved in a particular case. But among such circumstances , two factors would seem to be essential prerequisites to any finding that the employer raised the majority issue in good faith in cases in which a union had been certified . There must, first of all, have been some reasonable grounds for believing that the union had lost its majority status since its certification . And, secondly, the majority issue inust 'lot have been raised by the employer in a context of illegal antiunion activities , or other conduct by the employer aimed at causing disaffection from the union or indicating that in raising the majority issue the employer was merely seeking to gain time in which to undermine the union. We have carefully examined all of the relevant circumstances dis - closed by the record before us in the light of these two considerations, and find no basis for concluding that in questioning the Union's ma- jority status on October 8, 1948, the Respondent was not acting in' good faith . There was, we believe, a reasonable basis for the Respond- ent's doubting that the Union still represented a majority of the em- ployees on October 8, although we must emphasize that in reaching m United States Gypsum Company, 90 NLRB 964, decided by Chairman Herzog and Members Murdock and Styles. 19 Toolcraft Corporation, 92 NLRB 655, decided by Members Houston, Murdock, and Styles. There the Board held that an employer had violated Section 8 (a) (5) of the Act, basing its decision on two subsidiary findings: (1) That the employer did not act in good faith in questioning the union's majority standing; and (2) that the union in fact was the majority representative. The language and structure of this decision show that had the Board concluded that the employer had acted in good faith, it would not have been necessary for the Board to determine whether the union actually had majority status. See also Jefferson Standard Broadcasting Co., 94 NLRB 1507, in which the Board, in dealing with an alleged refusal to bargain as of May 13, 1950, held that a certificate issued May 9, 1949, no longer barred an effective challenge of [the union's] status as the statutory bargaining agent." 20 See also Sport Specialty Shoemakers, Inc., 77 NLRB 1011 ; and Bethlehem Steel Co., 73 NLRB 277, 279. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this conclusion we do not rely to any significant extent on the fact, standing alone, that the Respondent's employees on October 8 in- cluded those who had abandoned the unsuccessful union-sponsored strike. We are well aware of the fact that individual employees may abandon a strike and return to work for personal reasons wholly un- related to any disavowal of their union as their collective bargaining representative. But significant in this case are the particular cir- cumstances under which the strikers returned to work and the compo- sition of the Respondent's labor force when the strike was over. As noted above, by October 8 the over-all complement of employees had been reduced, and the entire composition of the bargaining unit had been changed. And of the 310 employees on that date, 108 were permanent replacements of strikers and 160 were former strikers who had crossed the picket lines to return to work during the strike. Significantly, the Union had twice-in its letters of September 6 and 16 quoted above-advised the Respondent, in substance, that union members were resolved not to cross the picket lines. Moreover about 170 employees in the unit were not members of the Union when the strike began. That being so, it was not unreasonable for the Respond- ent to assume that, of the 160 early returning strikers, some, if not all, were not members of the Union. This fact, and the other circum- stances already indicated, were sufficient, in our opinion, to have given rise to a reasonable doubt that the Union continued to represent a majority of the employees in the unit. Nor does the record reveal any conduct by the Respondent-either before or subsequent to October 8-which is inconsistent with a good faith doubt of majority. As has already been noted, the Respondent- which has a record of consistent adherence to the principle of col- lective bargaining-bargained in good faith both before and during the strike, and committed no other unfair labor practices by any con- duct during that period. It is true that the Respondent failed to avail itself of its right to file a petition with the Board to ascertain the Union's representative status. However, we do not believe that the Respondent was re- quired to file such a petition in order to demonstrate its good faith 21 While its failure to do so may be some evidence of bad faith, we believe that in view of the absence of any other evidence thereof, the counter- vailing evidence cited above is sufficient to warrant a finding upon the whole record that the Respondent was acting in good faith. 21 See footnote 5 of Toolcraft Corporation, supra, where the Board stated: "We do not adopt the implication of the Trial Examiner that the Respondent was `required' to file a petition . As noted above, we find that the Respondent 's refusal and failure to invoke the Board's processes constitute indicia of lack of good faith." CELANESE CORPORATION OF AMERICA 675 As We have liege found that the Respondent acted in good faith in q'ciest,ioliilig the Union's majority status on October 8, 1948, there is .xlieed to ascelbii:ii Whether the Uiiioii in fact rehieeliteel a.niajoi- no ity of the Respondent's employees oil' that date.^2 It follows, there- fo`r'e, t1Cat the Re'si oiideut did not violate 'Section 8 (a) (5) Of the Act by its refusal to recognize or ilieet with the Union on and after October 8, 1948. Order Upon the entire record iii the case, arid ptursuaiit to Section 10 (c). o f :the 'National Labor Relations Act, the National- Labor Relations `Board'hereby orders that the complaint, issued-hereiln,-againsttthe, R'espoi dent; Celanese Corporation of Ad4eiica, Bishop; Texas,be, acid it hereby is, dismissed. . MEMBERS HOUSTON and MURUOCK, dissenting in part: We disagree with that portion of our colleagues' decision which holds that the Respondent did not unlawfully refuse to bargain with the Union on and after October 8, 1948. We ate confronted, here with a refusal by the Respondent to resume negotiations with the Union at the.conclusion of an economic strike called by the Union in the third year of its certification . and after bargaining to an impasse concerning a contract renewal. Our col- leagues have found that the Act was not violated because the Res- pondent "in good faith believed that the Union no longer represented the majority of the employees." Although they agree that the legal principle is that a certificate creates a presumption of majority after the first year and the presumption is rebuttable, they then curiously ignore the question whether there was sufficient evidence to rebut the presumption of the Union's majority status or to demonstrate that the. Union in fact did not,represent the majority of the employees. They justify this by announcing ' that , a "direct corollary" of the proposition that the presumption of majority from the certificate is rebuttable, is that the employer may refuse to bargain if his doubt of majority is in good faith. We cannot understand this process of legal reasoning. Certainly it does not follow from the fact that one has the right to ?rebut a presumption by showing that a different status obtains, that it is sufficient to overcome the presumed status to show that one has good faith doubts as to.the truth of the presumption. As to the force of the certificate, the presumption arising therefrom, and the method of overcoming the presumption; the Court of Appeals for the Fifth Circuit said, early in the Board's history : '--3 22 Wooster Brass Co., 80 NLRB 1633, 1165; Arteraft Hosiery Co., 78 NLRB 333, 334. Za Whittier .lfi.lls Co., et at., supra. . 961974-52-vol.95--44 t676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The statute does not say how long a certificate of representation .shall stand good. It is not intended to be ephemeral, nor should it be perpetual. On general principle, since it ascertains a status ,as existing, the presumption is that the status continues until shown to have ceased. The employer is, in theory at least, not much concerned since the employees are to choose their represen- tative unhindered. So long as the employees make no conteii- tion that they are not correctly represented, it would seem that the employer could safely continue to deal indefinitely with the designated bargaining agent. . . .. The present wishes of a majority of the employees are not established either way. The presumption of the continuance of the established status justifies the Board's finding that the Committee is still the representative designated and selected by the majority. [Emphasis supplied.] In keeping with this view, the Board has heretofore held that it union's representative status once established by Board certification is, absent unusual circumstances, conclusively presumed during the first year, and is presumed to continue indefinitely thereafter until shown to have ceased, or until the presumption is effectively re- butted.24 Direct or circumstantial evidence may rebut the pre- sumption of majority status after the initial certification year. Among the circumstantial factors to be considered are a decertification petition, a rival union claim or petition, or disaffection from the union of a majority of employees. Of course, where it is shown that a bargaining representative in fact no longer represents a majority of the employees, the employer is under no obligation to bargain with it, but where an employer relies upon circumstantial evidence to rebut the presumption it is for the Board and not the employer to determine whether the circumstances relied upon have rebutte.the presumption 25 In the latter situation, the good faith of the employer in challenging the union's majority is immaterial.26 To hold otherwise is to make the presumption of continuing majority arising from a Board certification a nullity by permitting an em- ployer to disregard such certification after its initial year, merely by 24 United States Gypsum Company, supra; Toolcraft Corporation, supra. In the United States Gypsum Corhpany case the Board recently said : "Once employees have designated their bargaining representative in accordance with the Act, recognition of that repre- sentative is not a matter which an employer may grant when and as lie chooses. A duty to bargain with such a duly designated representative has been imposed upon him by the Act. The Act also provides the methods whereby such duty may be dissolved." w Cf. Franks Bros. Co. V. N. L. R. B., 321 U. S. 702, 705-6 ; N. L. R. B. v. Prudential Insur- ance Company of America, 154 F. 2d 385, 389 (C. A. 6) ; N. L. R. B. v. Appalachian Electric Power Co., 140 F. 2d 217, 221-2 (C. A. 4) ; N. L. R. B. v. Botany Worsted Mills, 133 F. 2d 876, 882 (C. A. 3). Zc The Wooster Brass and Artcraft Hosiery cases relied upon by the innjol'ity in support of a contrary conclusion are not here applicable . In the Wooster Brass case the union in fact did not represent a majority of the employees and in the Arteraft Hosiery case there was no outstanding Board certification to give rise to the presumption. t 'CELANESE CORPORATION OF AMERICA 677 'stating his doubt even though the contrary is indicated. Such a,rul-' ing'tivill encourage annual challenges to majority status and tend to disrupt, bargaining stability. The_ instant case presents no direct or circumstantial.factors suffi- cient to rebut the presumption of the Union's majority: It discloses onl that, when A he strike beg to on 'July 28 1948, there were 691 employees -in the unit of whom 520 were union members;' that, of the, 310 employees of the Respondent on October 8, the date of the refusal to bargain, 202 were reinstated. strikers and 108 were permanent re- placements; and that, between July 26, 1948, 'and January 1950, 40 members affirmatively withdrew from the Union. While the record does not show which, if any,.of the union members were among the group of returning strikers, it is clear that those of them who were did not, by such conduct, conclusively repudiate the Union.27 And, were we to assume that all 40 withdrawals occurred before October 8, and that all were from the group of returning strikers, the. Union would still have a majority. We accordingly find that the presump- tion of continuance of majority status has not been rebutted. Indeed, construing the facts most favorably to the Respondent, 'Ave must con- clude, as the court did in the Whittier Mills case ,2g that the present wishes of a majority of the employees are not established either way," and that "the presumption of the continuance of the established status" based on the certification justifies the finding that the Union -"is still the representative designated and selected by the nnajoiity." The violation of Section 8 (a) (5) is therefore clear. Moreover, even were we to agree with the majority that the de- terminative factor in this case is the question of the Respondent's good faith in challenging the Union's majority, we would nevertheless .find that the Respondent violated Section 8 (a) (5) of the Act as we are convinced that it did not act in good faith. At the inception of the strike.on July 26, the Union represented an -overwhelming majority of the Respondent's employees. When the -plant resumed full operations the 'unit was comprised principally of returned strikers. Yet, on October 8 the Respondent's response to the -Union's request to bargain was that "the Union does not represent any of the employees now working in the plant." [Emphasis- added.] .Furthermore, the Respondent has not excepted-to the Trial Examiner's finding that on September 27, when the plant was again in full, opera- tion; the Union represented a majority of the employees; - and the record shoNus,nothing, in the few days between September 27 and October 8, 19,48, which might in any way have affected that majority. 'This categorical rejection of the Union takes on added significance n West Fork Cut (Iris Company, 90 NLRB 944. Footnote 14, supra. 678- DECISIONS OF NATIONAL LABOR RELATIONS BOARD in view of the failure' of the Employer to file a representation petition and the absence. of either-a, rival union claim, a decertification ,peti- 'tion or-any other.iindication that the employees did not wish to be represented'by the -Union; it'conclusively demonstrates to us that .the Respondent did not have a good faith doubt of the Union's .majority. We -conclude, therefore, that the Respondent refused to bargain with the 'Union on and after October 8; 1948, in violation of Section 8 (a) '(5) and 8 (a) (1) of the Act. Intermediate 'Report STATEIiENT OF THE CASE ' Upon charges .z duly filed: ,by Oil Workers International Union, ,CIO, herein called the Union, the General Counselof:the National Labor Relations Board by the Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated March 16, 1950, against 'the Celanese Corporation of America, herein -called the Respondent or the Company, alleging 'that the Respondent, at its'plant in'Bishop, Texas, Thad engaged in'and was engaging in'unfair,labor practices -within the meaning of-Section 8 (a) (1), (3), and (5)., and Section 2 (6) and (7) of the National Labor Relations Act, as ,Intended, 61 Stat. 136, herein called the Act. Copies-of the complaint, with copies of the fifth amended charge attached, together with notice of hearing, were duly served upon the Respondent 'andthe Union. With 'respect to the'unfair labor practices, the complaint alleges in substance that the Respondent: (1) On or about August 13, 1948, discriminatorily dis- charged Ruth Rote Urmy, Marjorie H. Kenyon, andPauline (Mrs. E. F.). Stev- ens, and on or about September 17, 1948, discriminatorily discharged or re- fused to reinstate 99 employees named in Schedule A of the complaint 'and 39 employees named in Schedule B of the complaint, and thereafter refused to reinstate them because of their membership in, and activities on behalf of, the Union and because they engaged in concerted activities with other employees for the purpose of collective bargaining and other mutual aid or protection ; (2) from on or about July 24 and October 8, 1948, refused and continues to re- fuse to :bargain collectively with the Union, the duly certified representative of the employees in an appropriate unit; (3) on or about August 13, 1948, by its officers, agents, and employees, (a) interrogated its employees concerning 'their union affiliations, (b), threatened and warned its employees to refrain from assisting, becoming members of, or remaining members of the Union, (c) about August 16, 1948, and thereafter, solicited individual striking employ- ees, who had gone on strike about July 26, 194S, to return to work, (dj on or about September 17, 1948, refused, upon application for reinstatement, to rein- state 138 striking employees 'referred to in (1), above, (e) on or about July 26, 1948, entered into an agreement with Brown •& Root, Inc. to furnish employees to maintain and operate its maintenance department previously operated by its employees in order to avoid collective bargaining with the Union, to discourage membership therein or to interfere with, restrain, or coerce its employees in the exercise of their rights: guaranteed by the Act, and (f) prolonged the strike,of July 26, 1948, because of its unfair labor practices ; and (4) by the foregoing acts and conduct engaged in violations of Section 8 (a) (1), (3) and (5) of the Act. a 1 The General Counsel and his representatives at the hearing are herein'called the Gen- eral Counsel and the National Labor Relations Board is called the Board. CELANESE CORPORATION OF AMERICA 679 { The Respondent, on March 28, 1960, duly filed a motion to strike and dismiss certain portions of the complaint (discussed below) and its answer wherein it admitted certain allegations in the complaint, but denied the commission of any unfair labor practices, Pursuant to notice a hearing was held in Kingsville, Texas, between April 11 and 20, and May 10 and 24, 1950, before the undersigned duly designated Trial Examiner. The General Counsel and the Respondent were represented by coun- sel and the Union by its international representative. All participated in the hearing and were,afforded an opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence pertaining to the issues. At the opening of the hearing, counsel for the Respondent argued the motion to strike and dismiss certain portions of the complaint. Briefly, counsel con- tended that the allegations in the complaint with respect to the discharge or refusal to reinstate the 139 striking employees, the refusal to bargain collec- tively prior to October 7, 1948, the contracting of its maintenance operations to Brown & Root, Inc., the prolongation of the strike by unfair labor practices, the solicitation of individual strikers to return to work and the interrogation of employees concerning their union affiliations and threats to refrain from assist- ing the Union or becoming or remaining members thereof, are all barred for the reason that no charge alleging such conduct was duly filed and served upon the Respondent within 6 months after the commission of the alleged acts as required by the proviso of Section 10 (b) of the Act. The record reveals that the original charge, alleging violation of Section 8 (a) (1) and (3) because of the discharge of 3 named employees was duly filed and served on August.31, 1948. Thereafter, on October 13, 1948, the charge was amended by adding a violation of Section 8 (a) (5), based on the allegation that the Respondent, on and after October 7, 1948, refused to bargain collectively with the Union. On November 10, 1948, the amended charge was further amended by an additional allegation stating that on September 17, 1948, the Respondent unlawfully refused to "reemploy and/or reinstate" named striking employees, which charge was again amended on November 26, 1948, and January 6, 1949, respectively,' by third and fourth amended charges, which simply included the names of addi- tional striking employees. Finally, on January 19, 1949, a fifth amended charge was,filed which restated the allegations of the previous amende,l charge, except that last charge alleged that on and after September 17, 1948, the Respondent unlawfully refused "to employ" designated striking employees. The -record plainly shows that the original charge as well as the amended charges were timely filed and -served, so the Respondent's motion is directed primarily to allegations-set forth in the.-complaint which are not specifically alleged in the charge as amended. Thus, -the complaint alleges that the Respondent 'did "discharge 'or refuse to reinstate" ethe 'striking employees whereas the fifth amended charge alleges that the Respondent refused "to employ" the individuals. 'Similarly, the complaint alleges a refusal to -bargain, on and after July 24, 1948, when'the above charge alleges -the refusal as occurring on and •after October 7, 1948. The filing of the charge is jurisdictional only and under the proviso in Section 10 (b) need not specify or particularize each and every unfair labor practice'to'be litigated, the proviso is a statute of limitations and no more 2 The undersigned denied the motion at the hearing, which ruling is hereby affirmed. At the opening of the hearing, the undersigned granted the motion of the General Counsel to amend the complaint by deleting the name of 1 individual appearing in Schedule B, and by adding 32 names to. Schedule A and B respec- ' Cathey CLumber Company, 86 NLRB 157 ; Jaque8 Power Saw, ,85 NLRB 440. 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tively, and reserving to counsel. for the Respondent the right to request addi- tional time, if necessary, to prepare his case in respect to the individuals in- eluded in the complaint through the amendment. At the conclusion of the General Counsel's case-in-chief the undersigned. granted the motion of the General Counsel to amend the complaint by adding. to Schedule A the names of two individuals who testified at the hearing. At the conclusion of the General Counsel's case-in-chief, counsel for the Re- spondent moved to dismiss the complaint in its entirety on the grounds that the General Counsel had not sustained the statutory burden"of proof and had failed to make out a prima facie case of violation of any of the provisions of 'the Act. The undersigned denied this motion, except as to 52 employees named in Schedule A and B the motion was granted, for the reason that 49 of these employees did not testify at the hearing concerning their application for rein- statement, as alleged in the complaint, nor was any evidence introduced showing that any application had been made on behalf of these employees, and 3 em- ployees who testified at the hearing that they did not make application for reinstatement. In the course of the hearing, the Respondent moved to dismiss the complaint on the ground that the evidence adduced showed that the Union was certified as a collective bargaining 'representative of the employees in an appropriate unit and that Local 553 of the International has attempted to exercise the right to represent the employees and that the Union had no power or authority to assign or attempt to assign to Local 553 the rights which accrued to it pursuant to the certification. This motion was denied by the undersigned. At the conclusion of .the case, the Respondent renewed its motion to dismiss, which was denied by the undersigned. The Respondent also moved to dismiss the complaint on the further ground that the Congress of Industrial Organiza- tions, with which the Union is affiliated, had not complied with the provisions of Section 9 (h) of the Act, at the time of the filing of the charges herein, and, therefore, was not entitled to file the same. This motion was taken under ad- visement by the undersigned and is disposed of in this Intermediate Report. At the conclusion of this case, the General Counsel moved to conform '.the pleadings to the proof as to matters of form, which motion was granted without objection by the undersigned. At the conclusion of the hearing, the parties. waived oral argument. The parties were also advised of their right to file briefs, and thereafter counsel for the Respondent submitted his brief to the undersigned. After the hearing was closed, the General Counsel and counsel for the Re-' spondent submitted a stipulation wherein the parties agreed that Bill Albert, a proposed witness for the Respondent, who was mentioned in the testimony of B. H. Lamb, a witness for the General.Counsel, was killed on or about;May, 4, 1950; and that Respondent's Exhibit No. 27, a copy Of the payroll voucher of Brown & Root, Inc., for the period ending September 19, 1948, be withdrawn from the record ' of this proceeding. On June 1, 1950, the undersigned duly entered an order receiving the stipulation in evidence as Trial Examiner's Exhibit No. 1. Upon the entire record in the case and from my observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF .THE RESPONDENT The Respondent Company is a Delaware corporation and maintains its prin- cipal office and place of business in New York, New York. In the conduct of CELANESE CORPORATION OF AMERICA 681: its business the Respondent operates manufacturing plants in, various States- of the United States, including a plant at Bishop, Texas, where it is engaged in the manufacture, sale, and distribution of aceticacid, acetaldehyde; methanol,- acetone, formaldehyde, and related products. In the course of, its operations at its Bishop plant, the Respondent annually purchases raw materials, prin- cipally butane, propane, and methane, of an approximate value in excess of $1,000,000, of which a small amount, less than 10 percent, is shipped to the- Respondent's plant from places outside the State of Texas. The Respondent annually sells and distributes finished products having a value in excess of- $1,000,000, of which in excess of 90 percent is sold and delivered to customers- outside the State of Texas. The Respondent stipulated at the hearing that it. is engaged in commerce within the meaning of the Act, and the undersignedi so finds. If. TIIE LABOR ORGANIZATION INVOLVED Oil Workers International -Union, CIO, is a labor organization admitting to- membership employees of the Respondent. - III. THE ALLEGED UNFAIR LABOR PRACTICES A. The certification of the Union and prior collective bargaining agreements The Respondent commenced operations at its Bishop plant in the spring of- 1945. Thereafter, on December 13, 1945, the Regional Director for the Sixteenth Region of the Board as a result of a consent election, certified the Union as the- exclusive representative of all the employees of the Respondent in a unit de - scribed as : - All employees of the company at its Bishop, Texas, plant engaged in- production, operation and maintenance, but excluding clerical, technical- (safety engineer, industrial nurses, chemical engineers, graduate chemists),- and supervisory employees with authority to hire, promote, discharge, dis- cipline or otherwise effect changes in the status of employees or effectively recommend such action. Following the certification the Respondent recognized the Union as the exclu sive bargaining representative of its employees in the above unit and after a series of meetings between representatives of the Union and the Respondent commencing in April 1946, the parties, on June 21, 1946, executed a collective- bargaining agreement covering rates of pay, wages, hours, and 'other conditions of employment. This agreement was effective for a -period of 1 year, with an automatic annual renewal clause, subject to the right of either party upon the- giving of a 30-day notice in writing prior to the expiration date thereof, to- modify or terminate the agreement. In 1947, the Union gave timely and appro- priate notice of its desire to negotiate a new agreement and starting about June 9, 1947, representatives of the Union and Respondent again held a series- of meetings which resulted in the execution of an agreement on July 24, 1947.. This agreement was also effective for a period of 1 year, and from year to year thereafter, subject to termination or modification by either party upon the- giving of a 60-day notice in writing. During the interim between the expiration of the 1946 agreement and the date of the execution of the 1947 agreement, about 33 days, the parties apparently extended the terms of the former agree- ment and there was no cessation of operations at the plant although the mem- bership of the Union had voted to take strike action. In the negotiations preceding the execution of the above agreements the Union was represented by a committee composed of employees of the Respondent, 682 DECISIONS OF ,NATIONAL LABOR RELATIONS BOARD who were members of Local 553 of the Union,. herein called the Local, as well as a representative of the Union, and each agreement was signed by the union representative and the committee of Local 553. - B. The alleged refusal to bargain collecti'vcly on or about July 2 i, 1948 1. The' evidence presented by the General Counsel On May 15, 1948,3 the Local, in accordance with terms of its existing agree- ment, served written notice upon the Respondent of its intention to terminate the agreement and requested the Respondent to meet with it for the purpose of negotiating a new agreement. The Respondent, about May 19 in the course. of a regular meeting between its management committee and the workmen's com- mittee, advised the Local representatives that it had received the notice and the parties agreed to hold a preliminary meeting on June 1. On the above date committees representing the Respondent and the Union conferred and agreed that negotiations would be conducted in substantially the same manner as they had been in the past and that future meetings would be held daily at stated hours, except on Saturday and Sunday. It was further agreed, according to Luther C. Owens, president of the Local and chairman of the union negotiating committee , that the "union should submit the contract proposal" which "would be the basis for.discussions" and that "any, parts of the contract agreed upon would be tentative agreements" since the company com- mittee would have to confer with its New York City *office concerning the agree- ment and the union committee was required to submit any agreement to members of the Local for ratification and approval. In accordance with the foregoing agreement the Union, about June 14, submitted its proposed agreement to the Respondent. Commencing about June 17, and continuing until July 25, the negotiating committees of the Union ` and the Respondent' met daily for the purpose of discussing the terms of the proposed agreement. The Union's pro- posed agreement contained 20 articles, covering the usual subjects of collective bargaining, with a schedule of wage rates for specified job classifications. Arthur Hajecate, who appeared as a witness on behalf of the General Counsel, testified that during the period November 1947 to February 1949, he'was an international representative of the Union and in the latter part of May 1948 was initially assigned, by W. W. Allen, director of the Union for this region, to assist the Local in its negotiations with the Respondent. As an international repre- sentative of the Union, Hajecate was a member of the union negotiating com- mittee and attended all meetings between that committee and the company committee during the period June 17 to July 24. Hajecate stated that the com- mittees used the Union's proposed agreement as the basis for discussion. Con- cerning the mechanics ' of the' bargaining- sessions , Hajecate declared that "we would negotiate on a certain-article, or part of an article, and then the Company would retire and bring back a typewritten paper with part of an article on it 'or sometimes an entire article" and as the parties reached agreement upon various articles they were thus reduced to writing in memorandum form and signed by both the union and company, committees, respectively. Hajecate admitted that as a consequence of the negotiations 'conducted during the above period the 3 All subsequent dates refer to 1948, unless otherwise stated. The union committee was composed of Messrs . Owens, Penner , Knickrelun , McCreary, Austin, and Hajecate . The committee remained intact until after August 11, when changes therein were made. The company committee was composed of Messrs . Bowen, Leach, Wilson, Gindorf, and. •Anwyll. - ' CELANESE CORPORATION OF AMERICA` 683' committees were able to reach tentative agreement upon 12 6 of the 20 articles set ; forth ' in the' Union's proposed agreement, each of. which was reduced to writing and signed by all membeis of the respective committees, except Hajecate. Furthei, Hajecate conceded that the committees had executed separate memo-' randum agreements covering articles on grievance' procedure and leave of absence but could not definitely 'identify these' agreements' because each was composed of 2 pages and the 'committee members signed only the last page of ' each agreement. The Union in its demands was asking for an increase of 30' cents per hour in order to bring up the wage scale to that prevailing'in' "comparable plants" and, according to Hajecate, the committees "touched" on wages constantly during: the negotiations. On July 20 the company committee presented its `written pro- posal' to the Union wherein the Company offered : (1). An increase of 13 cents per hour; (2) a jury duty clause providing that the Company would compensate employees by paying the difference between the amount received as jury pay and the amount the employee would have earned on his regularly scheduled day; (3) shift differential to apply after 4: 00 p. m.; (4) shift differential to be added to base pay rate for computing overtime; (5) overtime for work in excess of 8 consecutive hours ; and (6) individual job adjustments for truck driver and grader operator. The Company proposal was made "contingent upon a'settlement of the entire contract." Hajecate stated that the union' committee; as well as ' the membership of the local, rejected the proposal because the increase was "much lower" than its demand: On July 23, the committees held a meeting which, with short recesses , extended until the afternoon of July 24. A representative of the United States Conciliation and` Mediation Service, herein called the Conciliator, was present during at"least part. of the meeting. Up to this point the committees, as stated by Hajecate, had' been 'unable' to agree upon terms''in respect to wages,` seniority , union responsi- bility; sick pay, severance pay, and funeral allowance;' although 'the committees "had been discussing them since the start of the negotiations." Hajecate's testimony' concerning the negotiations at the July 23-24"meeting may, bbe sum- marized as follows: ' Wqe': The Union originally-demanded--an 4ncrea9e'of 30:cents ,per hour •and on July `20; the Company' offered ' an increase of 13 cents per hour, which was rejected: On July 23, the"Company increased 'its'offer to'15 cents per hour; which was likewise rejected'by the union committee. The union' committee then re- duced its demand from 30 cents to 25 cents per hour and requested the Company through'- K. D. Bowen, ' plant manager, to make' a proposal "in between our twenty-five cents' and his' fifteen cents, and mentioned' at ' the time a' few' dollars per man per week would settle our differences." However, Bowen refused to further increase the offer and stated "if we [the Union] couldn't'take that, then negotiation's were off ...." e These articles included preamble to the agreement, recognition , union'security, arbitra- tion, management rights, hours and overtime rates on transfer, discharge , suspension and resignation, workmen's ' committee, safety and' health, physical examination , and bulletin boar s. , Thesetagreements werL later identified and received inlevidence. (684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seniority: The union committee requested the "usual seniority clause" which 'would afford the "oldest man a seniority" providing he "was fit and able to do the work,"' The company committee on several occasions declared that they agreed to seniority "in principle" but "didn't want to tie their hands" with such a provision in the agreement. Union responsibility: The union committee took the position that it could not be held responsible for any stoppage caused by nonunion employees.' The com- pany committee insisted upon the usual no-strike no-lockout provision , which the Union rejected,;because the Union would, be held responsible under the Act for' -any work stoppage even though it had nothing to do with the calling of such stoppage. Sick pay: The Union asked that after 6 months' service employees be granted :3 weeks at full time and 12 weeks at half time, with benefits to commence on-the third day of the employee's absence.10 The company committee refused to nego- tiate upon this provision but informed the union committee it might do so next .year, to which the union committee replied, "That is what you told us last year." Severance pay: The union committee requested that, upon separation from the ,Company, the employee be paid 1 week's pay after 1 year's service, 2 weeks after 2 years, 3 weeks after 3 years, and 4 weeks after 10 years service.'1 The ,company committee rejected this proposal and offered the provision in the 1947-1948 agreement which provided for separation, without severance pay, on -40-hour notice. The members of the union committee had agreed among them- -selves to withdraw this proposal provided agreement was reached with the 'Company on wages, sick pay, and "other things." Funeral allowance: The' union committee asked that the Company allow -employees up to a maximum of 3 days to attend the funeral of a close relative," which proposal was rejected by the company committee. Toward the conclusion of the meeting on July 24, Bowen, according to Haje- -cate, inquired as to what notice the Union would give the Company if the plant was to be shut down. Hajecate stated that Bowen had made the same inquiry -on the evening of July 23, and even prior to that time he had refused the Union's offer to negotiate an orderly shutdown. Hajecate assured Bowen that the Union was a responsible organization and if it was necessary to bring down the plant it would do so without damage or injury to equipment or personnel. However, S Apparently Hajecate was referring to promotions or transfers . The seniority pro- vision in the Union 's proposed agreement sets forth in detail the specific demands in _ this respect. The provision states that the Company shall have the right to determine 'production and other requirements of its business and to lay off employees when neces- -sary. The clause further defines plant seniority, departmental seniority in stated areas, 'probationary employment, and the application of strict seniority in the determination. -of promotions , demotions , layoffs , recall , and transfer of employees. ° In its proposed agreement the Union submitted a clause to the effect that the Union would not engage in or sanction any strike by its members and that the Company would not lock out any of its employees for any cause which might be the subject of a grievance under the grievance and arbitration provisions of the proposed agreement. 10 The sickness and disability benefits clause in the proposed agreement provides for payments, as set forth above, for each calendar year. In addition the clause provides for the accumulation of unused benefits from year to year, not to exceed 9 weeks at -full time and 24 weeks at half time; benefits to be in addition to payments under State Workmen's Compensation Act ; benefits would not accrue if the disability is due to the 'unlawful use of intoxicants or drugs. 11 The, provisions as set forth in the Union's proposal provided, when possible, for 5-day notice in case of layoffs and where the employee is terminated through no fault of his, own severance pay be granted as above stated. 12 In its proposals the Union requested that in event of death in an employee's immediate family he would be allowed necessary time off to attend 'the funeral without loss of pay. CELANESE CORPORATION OF AMERICA 685. since the Company had refused , to negotiate upon the terms of a shutdown, then the Union would give but 1 hour 's notice prior to taking such action . Hajecate declared the meeting concluded by Bowen stating ,,"It was fifteen cents or we could forget about the whole deal , and if we didn't agree then, what we had already agreed to was out.". W. W. Allen, director for the Union , who supervised all service and organiza- tion activities in the Bishop area, testified that he was familiar with the previous agreements between the Union and the Company , that he had assigned Iiajecate to assist ,the Local in this matter , and that he himself definitely entered into the negotiations on -July 23 . Allen was present with the union committee when it met with the Company and the Conciliator , which meeting he stated commenced about 10 o'clock the morning of July 23 and continued until about 3' o'clock the afternoon of July 24. According to Allen, the committees had been unable to reach agreement on six issues , namely, general wage increase, severance pay, funeral allowance, jury service, the language of the no-strike, no-lockout clause, and vacations . He further stated that the discussions at this meeting were bottomed upon the Company 's proposal of July 20, supra, p. 683 , wherein the Company offered, inter alia, a wage increase of 13 cents per lour. During the discussion upon this proposal the union committee advised the Company that it could not accept the same because "we didn't feel that their wage offer was adequate" in that it was below area average as established by -the Union and some issues had been "completely ignored in their proposal." 'Thereafter the committees continued to discuss the subject of wages and on the morning of July 24, the . Company increased its offer to 15 cents per hour. The Conciliator recommended that the union committee submit the Company's -proposal to the membership of the Local for consideration , but the union com- -mittee stated that this action was unnecessary since the membership had dis- -cussed its general wage increase proposal of 30 cents per hour and had "in- .structed the committee " that it was "not to recede from their original position." -Allen further testified that the union committee, upon instructions from the local membership , did reduce its wage increase demand from 30 cents to 25 cents per hour "somewhere along the line, " possibly on July 22, or during the course of the meeting , but he did not know "just when they instructed" the union -committee to recede from its original demand, nor could he recall any meeting held by the Local for that purpose on July 23 or 24. Admittedly, the committees -discussed the Company's proposal of July 20 , and other issues, such as sick leave .and vacations, although Allen did not relate the details of the discussion upon -these subjects , nor did he mention the negotiations concerning the issues upon provisions covering severance pay, funeral allowance , jury service, and the -no-strike no-lockout clause. In summarizing the events at this continuous meet- ing, Allen testified : We negotiated until about 8: 30 [sic] on the morning of the 24th , adjourned for about an hour and a half for breakfast , reconvened around eight [sic] o'clock and stayed in session until about 2:30 p. in., on Saturday , the 24th. At that time , the conciliator , he said it was his opinion , he had done every- thing within his power and that he didn 't feel that further meetings were justified, at that time. Negotiations were broken off, we requested . of [the] company that they sit down with us and work out a stipulation for an orderly shutdown of the operations, that had been mentioned prior to, the actual breaking off of negotiations and at;that time, we were told by management that it must be fully understood that if we broke off negotia- tions, all proposals that .have been made with them were automatically with- drawn. 686 DECISIONS`,OF' NATIONAL LABOR:iRELATIONS BOARD Luther Owens, president - of the Local and -chairman of the union committee; testified,that up to July 23, the Union and company committee had tentatively agreed upon 12 or 15 articles'each 'of which'had been reduced to ,memorandum form and signed by Owens and other members of • the committees: Owens attended the meeting of July 23-24, and stated that as . of that date the 'parties had been unable to agree upon wages, -seniority, severance pay, sick, and jury duty pay. While Owens said the committees discussed these topics he did not recite the details, thereof , other- than that- there was extensive discussion:upon - the language of -the-no-strike no-lockout provision;' and that the Company: on - July 24 increased its offer in 'respect to wages from 13 cents to 15 cents per hour.' Owens -summed up the results of the discussions . at this ;meeting -by declaring : "The position of the Company and 'the position of Local 553 was that- we were very far apart, we • had - no hopes, - from - Friday morning [July 23] until, after two o'clock on Saturday afternoon [July 24]." Eugene Knickrehm ; a member ' of -the union ?committee, stated :that :up')to - July ' 23' the committees had reached. tentative agreement on approximately .15 articles which had been' reduced to writing and signed by, members of, the •. committees. Knickrehm -attended the meeting 'of'July 23-24, but . simply testified . that at the conclusion' of 'the p "bargaining session" the company' ' Committee announced that it "would . withdraw any : agreements that had been made up. until - that time." The other' members of the union committee , Penner and McCreary, while called as -witnesses, did not testify 'concerning :the meeting of July 23-24, and. Austin did not appear as a witness at the hearing: 2.• The evidence presented by the-Respondent Clay E. Leach, personnel superintendent. at the .Respondent's plant, who was chairman and spokesman for the company committee during its negotiations with the Union , testified substantially as follows : The Union, by its letter dated May 15, advised the Company of its intention to terminate the 1947 agreement , which letter was acknowledged by the Com- pany . to the union workmen's committee at the plant* on May 19, and again, by its letter dated May 21, addressed to the Local. On June 1 representatives of the Union fnd the Company held a conference for the purpose of 'discussing . procedures and other preliminary matters concerning -the method 'of conducting, the bargaining negotiations: At this meeting the parties agreed that the Union would submit a proposed agreement , that the members of'the union committee would be paid, while attending.-meetings , if they would-normally be working..- at that time, and that negotiating. meetings would be held daily *on alternate mornings and afternoons, except Saturday and'Sunday , in the conference room at the Company 's plant. On^•June 14 the Companyl received the' Union 's' proposed agreement - and the' committees' held their - first-' meeting on -June 17, and- thereafter ; according to the agreed -schedule, until July- 24. During:these meetings ' the Company, used the' 1947 agreement as its , proposals and as a basis for discussing the Union's demands. Wh 1e•'•th'e complaint specifically alleges ^ that, the, Respondent refused ' to' bar- gain '. collectively on and ` after"July 24, it' is necessary to review, briefly-' the negotiations that - were"condieted1 • priar"to that- date; as, .a result', of which-'the coinnuittees' reached' tentutive'agreement upon: : 13 of'the 20 articles' -which had been' presented=by the Union as a ba'sis%for:negotiation: - The committees had no difficulty reaching' agreement ' upon" articles - pertain- ing to management rights, physical examinations , and the preamble to the'agree- CELANESE CORPORATION OF AMERICA 687 ment,: since the Union's proposals in respect to these provisions were the.,same as those contained in the 1947 agreement. The Company also. agreed to pro- visions pertaining to union-security and discharge, suspension and -resignation, the Tjnion.having requested but minor changes in these•provisions. The • remaining -articles which were discussed, and, agreed upon, as well as the-principal issues thereon, are set forth below : Recognition: The Union sought to include clerical employees in the bargain- ing unit (this group had been excluded in the Board's certifleation),, which request was refused by the Company. The Union also verbally requested that certain excluded classifications from the unit, such as engineers and chemists, be restricted to- personnel "so classified" so that the Company could not hire graduate engineers or chemists in the hourly paid category-of employees and then exclude them from the bargaining un`t.because they were:graduate engineers and chemists. The Company agreed to ti.is change. Grievance procedure: The principal issue concerned, the application.of the pro- viso in Section 9 (a) of the Act. The company committee agreed to the Union's proposal, provided, the proviso in Section 0 (a) was included therein, which was acceptable to the Union. Arbitration: The Union proposed that arbitration cases be heard • before a three-man panel composed of a union representative and a company repre- sentative who would select the third arbitrator and in the event they could not agree upon the third arbitrator then the Federal Mediation and Concil- iation Service would name the impartial arbitrator, and that the cost of the third arbitrator, where the case was initiated by the Union, would be divided equally between 'the parties. Hajecate also requested in the course of the dis- cussions that the Union should not bear the expense of arbitration proceed- ings where the case was processed by an individual rather than the Union. The Company proposed that the American Arbitration Association be used in the hearing of arbitration matters, that the decision in such cases be restricted to the terms of the agreement, and that it should not be retroactive beyond the date of the filing of the grievance. The committees reached agreement upon a pro- vision which provided, for a three-than panel, the equal division of costs as proposed by the Union, that the decision should be limited to the interpreta- tion of the terms of the agreement as necessary to determine the grievance, .and that the decision should be retroactive not more than 14 working. days prior to the filing of the grievance. Hours and overtime: The Union requested that.overtime be allowed for all work at; any time in excess of 8 consecutive hours, that the workweek •com- ntence at. 8 o'clock, instead of 12:* 01, Monday morning, and that a chart show- ing completed overtime be posted in each department and unit. Under the pro- visions of the 1947 agreement, overtime was paid for time in excess of 40 hours in 1 week and 8 hours in 1 day. Because of this provision; if an employee, worked the last 8 hours of the workweek, midnight to 8 o'clock, and then doubled back and worked from 8 a.. m. to 4 p. m., he was making the break from 1 workweek to another and would be entitled only to straight time.. The Company agreed this provision should be changed and accepted the above proposals as requested by the Union. Rates on transfers: The Union proposed that when an'employee was trans -fered to a higher paid job the higher rate would start imediately, and that the term "split classification" as used in the 1947 agreement be changed to '.shift breaker." The Company proposed that an employee should work 4 hours in the higher paid classification before receiving that rate.: The committees agreed that the higher rate should be paid after an employee worked 1 hour 688 DECISIONS OF- NATIONAL LABOR 'REI:AT1ONS BOARD in the higher job classification and that the term "shift breaker" instead of- "split classification" should be adopted. Workmen's committee: The Union proposed.that the workmen's committee be increased from-5 to 7 members, that members receive time and a half for time spent when off duty, and that the Union be permitted to have a represent- ative at meetings. Subsequently, Hajecate orally requested that the commit- tee be composed of 5 members and 5 alternates, without limitation as to the number permitted to attend meetings. The committees agreed that the work- men's committee be composed of 7 members; that they receive regular time for all scheduled working time lost during conferences, that the Union be allowed to. have a representative present at meetings, and that the number of shop stewards be increased from 12 to 18. Safety and health: The Union proposed that if, in its opinion, unsafe work- ing conditions exist it could request a conference with the Company for the purpose of discussing and adjusting such conditions. The Union also sug- gested the appointment of an employee safety and health committee. The com- mittees agreed to the Union's proposal, except to the extent of the appointment of a committee. Leave of absence: The Union's proposal in this respect provided that leave of absence, not to exceed 1 year, should be granted ,for the purpose of conduct- ing union business, (1) where the leave exceeds 30 days it should be restricted to two employees at the same time, upon the giving of 10 days' notice, and (2) where the leave is less than 30 days, it should be restricted to five employees, at the same time, upon the giving of as much notice as possible. The committees agreed to the above terms except that the employee be required to give 15 days' notice instead of 10 days where the leave of absence exceeds 30 days. The com- -m ctees further agreed to a military leave clause providing that department and plant-wide seniority would, accrue during.service in the Armed Forces. Bulletin boards: This provision as set forth in the Union's proposal provided for the use of bulletin boards, to be furnished by the Company, for the purpose of posting notices regarding dues, meetings, and regular union activities. Hajecate also demanded that the Union have the lock and key for the boards and the right to post any material it desired. The Company agreed to the Union's use of bulletin boards, as it had in the past, and to furnish the Union with a lock and key for each board: The Company, however, refused to grant to the Union the right to post any material or notices it wished, since the..Com- pany had a policy of prohibiting the posting of any advertisements at the plant, and further the Company sought to eliminate the possibility of the post- ing of any notice that might be scurrilous or damaging to the Company or its employees. After much discussion the committees agreed to a provision which stated that the Company would furnish bulletin boards for the exclusive use of the Union, and that the Union should have the keys thereto . In addition the Union would be responsible for the matter posted on the boards, which matter would be limited to notices regarding dues, meetings, results of elec- tions, correspondence between the Union and the Company, the disposition of grievances, and rulings of the Board, as well as Federal and State court decisions regarding labor relations. The provision prohibits the posting of political notices, notices criticizing persons or firms, and the solicitation. of union membership. . In the course of the negotiations up to July 23, the committees discussed, but were unable to reach an. agreement upon, the following articles, exclusive, of seniority and wages : CELANESE CORPORATION OF AMERICA 6891 Work Stoppages : The union proposal provided that the Company would not sue the Union for damages resulting from an unauthorized or unsanctioned. strike and that the Union would use its best efforts to prevent such, interference with the Company's operations. The Union further proposed that any disci- plinary action resulting from a violation of this provisions be handled, exclusively under the grievance and arbitration provisions of the agreement.. The Company conceded to relieve the Union of liability in the, event of an, .unauthorized or unsanctioned strike but wanted to retain the right to dis- cipline or discharge employees who participated therein without regard to the. grievance procedure provisions of the agreement. Leach stated that each com- mittee changed its position somewhat during the. discussion but no agreement, was reached because the Union insisted that any disciplinary action for violation, of the provision be processed as a grievance and the Company insisted upon its. right to take such action without regard to the grievance procedure of the- agreement. Holidays: The committees were in agreement as to the number. of holidays: and pay rates governing the same. The committees could not agree, however, upon the eligibility rules pertaining to holiday pay to employees, as well as. the Union's request for allowance of an extra day if a holiday occurred during vacation period. Vacations: The Union proposed vacations be granted upon the basis of 1 week for service of more than 1 year but less than 2 years, 2 weeks for service of more than 2 years, and 3 weeks for service in excess of 5 years. The Com, pany agreed to the proposal insofar as it requested vacations for 1 and 2 weeks, but refused to grant 3 weeks, for employment in excess of 5 years, and. for this reason the committees failed to reach agreement. Leach did not testify concerning the Union's proposals in respect to sickness. and disability benefits and miscellaneous clauses, although he did state that the committees "discussed every article" in the proposed agreement. Admittedly,, the committees did not reach tentative agreement upon these provisions. Although the committees held meetings practically every day commencing: June 17, the Union, according to Leach, up to July 20, had "avoided any refer-: ence to wages" although the committees may have talked about "fringe issues bordering upon wages, but not wages as such . In the meantime, about July- 15, Hajecate informed the company committee that the Local had taken a, strike vote and suggested that the committees discuss the terms on which the plant would be shut down. Leach stated that the Local had taken similar, action during the negotiations of the preceding year, so he considered the,. strike vote as a vote of confidence in its committee. Nor did he believe Hajecate to be "too serious" in suggesting that the committee negotiate the terms of a, shutdown since such matters are normally discussed shortly before the termina- tion of the agreement, which, in this instance, was midnight, July 23. Seemingly,, Hajecate's suggestion was not discussed until the meeting of July 20. On that date, Hajecate gave the Union's terms in the event of a shutdown as: (1) The. plant would not operate until an agreement had been signed ; (2) the coni- mittees to agree upon the hourly employees necessary to man steam and fire, apparatus; and (3) the committees to agree upon supervisory and clerical personnel to be allowed in the plant. The Company, in turn, requested that it be given 24 hours' notice prior to striking the plant. The following day the committees again discussed the matter and the Company advised the Union; that it could not agree to the terms as proposed, so Hajecate stated the Union, would give 1 or 2 hours' notice before striking the plant. On the same day the. g90 DECISIONS--OF. NATIONAL LABiOR, RELATIONS BOARD Company addressed, a .lettei to. the Local asking that, in the interest ,of safe- . guarding life and property, the Local give the Company 24 hours' strike notice, ,which letter the Local did not answer. On July 20, the company committee decided that wages should be discu_ ssed, so• shortly after the meeting opened a recess, was taken during, which time the company committee prepared a written proposal covering wages and other items, supra, p. 683. Upon resumption of the meeting the Company presented its proposal to the. Union but Hajecate said. "he was not in a position and Aid not want to discuss wages." Leach further stated that when Owens,. chair- man of the union committee, attempted to discuss, wages Hajecate told him to "keep your damned mouth shut." Mimeographed copies of the Company's .proposal were distributed among its supervisory personnel, after the proposal had-been submitted to the Union.. The committees met on July 22, which terminated inconclusively. On July 23-24, the committees again met and at the opening of the meeting- the committees took "inventory" of the provisions discussed thus far in the negotiations.. According to Leach, the major` issues between the committees at that time were wages and seniority, with a few other,issues which "hinged" on wages. The committees discussed the provisions still in issue but could not reach any agreement thereon. Early in the afternoon the conciliator arrived and after being advised of the issues and the positions of the parties, thereafter assumed control of the meeting. In the course of the session the conciliator conferred both jointly and separately with the committees in an attempt to resolve the issues. Seniority : The principal issue between the committees concerned the promo- tion of employees. The 1947 agreement provided that all promotions shall be based upon seniority and demonstrated ability to do the job (with the latter being established by proven all-around job performance to the satisfaction of the Company day by day on the present job assignment) and that any dispute aris- ing under the provision shall be processed in accordance with the grievance and arbitration procedure of the agreement. The Union proposed that all promo- '.tions be based upon seniority and demonstrated ability (established as above) with seniority the "determining factor." The Union further proposed that if after 30 days' trial the employee promoted is unable to perform the duties of the, new job, he shall be demoted to his former job classification, after the matter has been discussed by the workmen's committee and the management committee. The, clause with respect to disputes under the provision is the same as the clause in the 1947 agreement. Leach told the union committee that following the "automatic promotional system" the Company would be required to take the oldest man in length of service and place him in the job for a 30-day trial period,, and that the Company could not deviate from this practice unless it first discussed the matter in joint conference with the workmen's committee. Leach also pointed out that during the preceding year over 90 percent of all promotions had been .awarded to the employee with the longest service but there were occasions when the senior employee could not be given the promotion because other factors, such as prior training, and physical and mental abilities, had to be considered in making the promotion. The Company therefore opposed the "rigid system" of promotions based upon strict seniority.. The committees discussed the seniority provision from about 4 o'clock the afternoon of July 23 until the early morning of July 24, when Leach. stated the company committee agreed to accept the Union's proposal in regard to seniority, including the clause relating to, promo- tions. However, since agreement was reached at an hour when no clerical employees were available, the provision was not reduced to writing and signed by members of each committee, as was done in respect to other agreed articles. CELANESE CORPORATION OF, AMERICA. 691 Wages: Leach testified that after, reaching agreement on, -seniority terms the committees discussed wages until about 7 o'clock the morning of July 24, ,when .a 2-hour recess was taken. As: appears, above,.the_Pompany, -on. July 20, had submitted a proposal which included an offer of a 13-cent an hour increase, which offer.was rejected by the Union. Upon resumption of the meeting the conciliator conferred separately with the committees and during a meeting with the company committee he requested that the Company give the "best offer" it could on wages. The company committee considered that its previous offer of 13 cents per hour was about the average wage increase granted throughout the country, and although the Union had not receded from its original demand of 30 cents per hour, nevertheless the committee agreed to raise its offer to 15 cents per hour, and so informed the conciliator and the.union committee. Leach de-' Glared this increase amounted to about $300 annually, per man, and would cost the Company about $250,000 uer year. Apparently, the conciliator discussed this offer with the union committee separately, but it declined to recede from its demand for 30 cents per hour. The committees then met to discuss the. Company's proposal which the Union rejected and at the same time refused to accede from its original demand. The Conciliator then suggested that the union committee put the Company's last offer to vote by the membership of the Local but Hajecate stated it was not necessary as the committee had sole authority to act on behalf of the membership. Hajecate then stated that since all articles tentatively agreed upon had been subject to agreement being reached on; a .complete agreement, when the committees resumed meetings it would be on the basis of a "brand new contract." The meeting thereupon adjourned. Henry J. Gindorf, labor relations coordinator and a member of the com- mittee. stated that he was also a member of the company committee which negotiated the 1946 and 1947 agreements with the Union and outlined the pro- cedures adopted by the committees in those negotiations. The 1948 negotia- tions followed about the same pattern as used in 1946 and 1947, except that in the present negotiations it was agreed that the Union would submit a pro- posed agreement as the basis for negotiations, whereas in the former negotia- tions both parties submitted written proposals. Gindorf prepared minutes for the company committee covering the discussions at each of the 1948 meetings," and gave a rather exhaustive account of what occurred at each meeting during the. period June 17 through July 2214 The testimony of Gindorf concerning the issues, discussions, and agreements occurring in the course of these negotia- tions is substantially the same as related by Leach, hence it will not be sum- marized here. According to Gindorf, the parties as of July 23 had been unable to agree upon seven of the articles in the proposed agreement, namely, work stoppages, wages, holidays, vacations, seniority, miscellaneous, and the term of the agree- merit, although these provisions had been discussed at the previous meetings. 'Gindorf attended * the meeting of July 23-24, and, like Leach, stated the major issues discussed at the meeting were seniority and wages. The remain- ing issues, such as holidays and vacations, were also discussed by the committees, but no agreement was reached on these clauses. The principal issue on seniority was the Union's insistence upon strict sen- iority in departmental promotions whereby the senior employee would be pro- moted for a 30-day trial period and if found to be unqualified at the end of the period the employee would be demoted to his former classification, with ''The minutes were made available to the General Counsel 14The meetings were held on June 17, 18, 21, 22, 23, 24, 25, 28, 29, 30, and July 6, 7, 8, 9,12,15,16,19,20,21,22. 961974-52-vol. 95-45 692 • DECISIONS -OF'NATIONAL LABOR RELATIONS BOARD ' the right to process 'his demotion under the -provisions pertaining to grievances and arbitration. After discussing the provision for about 8 hours, -the com- pany committee acceded to this 'request but, the agreement was not reduced to writing and signed, like the other agreed articles, for the reason that the verbal agreement was reached about •4 o'clock the morning of July 24, and no clerical help was available •at that hour to type out the provisions as agreed upon. In respect to the issue of -wages, lGindorf stated that the Union was still seeking increases which amounted to a minimum of 30 cents per hour up to. 45 cents per hour for the various classifications of employees in the bargaining unit. Gindorf said that Hajecate advised the company committee that its de- mand for wage increases was the Union's "pattern" and that "it was com- '•parable to what they had received in other plants in the coastal area and in the Oil Workers contracts at other plants." The company committee raised its original offer of a wage increase (of July 20) from 13 cents to 15 cents per hour and informed Hajecate and the union committee. that this wage rate -was comparable to rates prevailing in other chemical plants in the coastal area. The discussion on wages "went back and forward with nothing being deter- mined," so the conciliator held separate meetings with the committees dis- cussing proposals but when no progress had been made after about 2 hours, he called the committees together and outlined briefly the events that had transpired up to that point. About 2: 30 the same afternoon the committees were still unable to agree upon wages and at that. time negotiations had "bogged down." The conciliator then asked the union committee to submit the Com- pany's last offer. to the membership of the Local for vote but Hajecate de- clined to do so.. As the members of the committees were about to leave "someone in the room mentioned about all the articles that had already been agreed to tip until this time" and Hajecate stated that they were ` all voided," as agreed at the meeting of June 1. The meeting then adjourned. 3. The strike of July 26 On July 25, the Local held a meeting, attended by approximately 350 men-. bers, wherein Allen advised the membership that negotiations with the Com- pany had broken off and that the Union had no alternative but to shut down the plant. Allen further informed the members of the Company's last proposal and, "if they had any opinions other than they were going to bring the plant down," to make such suggestions at once, since the committee had done every- thing it could to work out an agreement with the Company but had been un- successful and Allen was "ready to call them down." Prior to this time, between July 11 and 13, the membership of the Local had voted to strike unless they secured a "satisfactory contract." At this meeting the membership re- fused to change its position, rejected the Company 's last proposal, and voted to strike the plant. Shortly after this meeting, Allen, Hajecate, and several members of the union committee went to the plant to discuss complaints which the committee claimed it had, received to the effect that supervisors were "riding" union members. This group met with Bowen and others, but'Bowen refused to permit the group to enter the plant, apparently to investigate the complaints, at any time except during their regular worktime. During this meeting Allen advised Bowen that the Local had held a meeting that afternoon and the "membership very definitely" .had not changed its former position," so unless Bowen could give assurance C1;LANESE CORPORATION OF AMERICA 693 that there _was •a possibility of further meetings ."pointing to the -working out of a satisfactory adjustment," he had no alternative but to strike the plant. Bowen replied that the Company's position was unchanged and if the Union "wanted to bring down the plant, 'bring it down." Hajecate told Bowen that .it was up to the.Company as to whether or not the strike would occure since "it would take only a ,few :dollars per week per man to settle this thing," but Bowen answered that he "wouldn't do anything more than his fifteen cents, there was nothing he would do about it." This concluded the discussion and the group left the plant. The same evening the union committee met with a committee or group of members of the Local and, after discussing the positions adopted by the Com- pany and the .Union, Owens instructed Allen that "they had no desire to change their position," so Allen had no alternative but to set the time for the strike. Allen then sent Hajecate and some members of the union committee to the plant and they notified Bowen, about 12: 45 o'clock the morning of July 26, that the strike would become effective at 2 o'clock the same morning. At that hour the employees left the plant and a picket line was set up by the Union. As of this date the Company had 691 employees in the unit and the strike resulted in a complete shutdown of operations. The supervisory staff of the Company then proceeded to shut down the plant, which operation required about 24 hours,. and the plant remained down until August 13, when it resumed operations,. as set forth below. The Union continuously maintained its picket line at the plant. until about September 16, when the pickets were withdrawn by the ' strategy committee and officers of the Union in order that the striking employees, upon. instructions from the Union, could "register for work" at the plant, "without' closing the picket line." On September 30, the membership of the Local voted. to terminate the strike and by letter dated October 4, notified the,Company that the strike had "officially ended" as of September 20. The union strike slogan was "not twenty nine but thirty," referring to its wage increase, which slogan: was adopted by the membership at its meeting of July 20. 4. The meeting of August 11 Pursuant to arrangements made by the conciliator, the committees met at 'Kingsville, Texas," on the above date. Hajecate stated that Bowen at the. outset of the meeting informed the Union that "all we had negotiated . . . -was out," whereupon the Union accused the Company of not acting in good faith by making such a statement. Hajecate also said that the Company, after a recess, agreed to discuss the provisions upon which no agreement had been reached but subsequently refused to discuss any articles and the meeting ended inconclusively. Leach stated that the Company renewed its previous offer of an increase of 15 cents per hour and that it was willing to discuss contract terms. Hajecate• ,said the Union desired changes in some of the articles previously agreed upon and then mentioned several of the "fringe issues." After .a recess, the meeting resumed and shortly thereafter Hajecate accused the Company of being: unreasonable in the negotiations and of using law enforcement officers asz strikebreakers. Bowen replied that the Union had been engaging in dilatory tactics and had not been interested in negotiating an agreement with the Company. After about 2.hours the conciliator stated that perhaps the meeting i 115 Kingsville is about 6 miles from Bishop. 694. DECISIOLVS ,OF' NATIONAL .LABOR RELATIONS BOARD had been prematurely called and concluded the same with the committees agree- ing to meet at a later date, if so requested. 5. The resumption of company operations on August 13 On July 27, Bowen conferred with his supervisory staff regarding the feasi- bility of making certain equipment repair and alteration work since this work could only be performed while the plant was shut down . At the meeting Bowen and his staff decided that this work would have to be done prior to reopening the plant and should be performed by an outside contractor. Accordingly, about July 30, the Company engaged the firm of Brown & Root , engineers and con- tractors of Houston, Texas, to perform this work, which was completed between 'August 2 and 11. The contractual relationship between the Company and Brown Root is discussed below. After the meeting with the union committee on August 11, the members of the company committee were of the opinion that it would be a "long time" before it could reach any agreement with the'Union, so Bowen decided to call a meet- ing of all supervisors that night to inform them of the problems facing the ,Company, particularly in regard to sales.and commitments and concerning the reopening of the plant. At that time the Company had a commitment for a shipment of formaldehyde to be loaded on a ship which was due to arrive at Corpus Christi18 in about 1 week, and which had to be loaded in about 16 hours or be subject to demurrage charges of $1,500 per day thereafter. The.meeting with the supervisors was held as scheduled and it was agreed that the plant would commence operations on August 13, with supervisory personnel to pro- duce formaldehyde to meet the shipment, and to reopen the plant with produc- tion employees on August 16. At this meeting, both Bowen and Leach warned the supervisors against soliciting any striking employees to return to work and instructed them that if any strikers questioned the supervisors in regard to their jobs to refer the individual to the Company's personnel office. On-August 13 production operations were resumed using supervisory personnel exclusively. In line with its plan to reopen the plant on August, 16, the, Company on .August 12 mailed a mimeographed notice to each of its production, laboratory, and utility employees, stating that the plant would reopen on August 16 and that employees returning to work would be reinstated to their former jobs, with the same rights and privileges as enjoyed prior to the strike, and that they would receive their old pay rate plus 15 cents per hour as offered by the Company to the Union during the bargaining negotiations.. At 'that time the Company was concerned primarily with starting production at the plant and did not consider the operations of its maintenance department too important or necessary. Brown & Root was able to take care of current maintenance, and the Company was not certain whether it would continue such an arrangement with that firm. Consequently the Company, on August 12, sent notices to its maintenance em- ployees informing them that an "information center" had been established in Bishop where'the employees could secure information regarding work. On August 16 some of the striking production employees ( the number not stated) returned to work. In'the interim, August 12 to August 16, the Company - had considered the "maintenance situation" and decided it could recall the . maintenance employees the following day. Accordingly, the Company placed prominent advertisements in the morning and evening editions of the Corpus Christi Caller Times, which appeared August 17 through August 20;-stating that 26 Corpus Christi is about 34 miles from Bishop. CELANESE ;.COR'PORATION' OFl; AMERICA- 695, the maintenance employees. could return -to work in, specified job categories, at their previous"classifications, with all prior. rights and pr..iwileges, plus an increase of 15 cents per hour. The Company also placed;- advertisements in the -same paper on August 18, 19,. and 20, to the effect a's,of August 18, new employees had been hired to replace employees-who had. resigned during the strike, that after August 20, the Company Would, begin to, hire new employees to replace striking employees who failed to report, and that after that date the strikers would be hired only as. vacancies exist. Again, on August 25 and 26, the Company placed advertisements in the same paper. stating that. the Company was accepting applications for experienced chemical plant operators. In addition to its advertising, the Company, on August 21, opened temporary employment offices at Waco, San Antonio, and Houston to secure trained production per- sonnel. By September 27 the plant was in full operation and was completely staffed with about 310 employees, both hourly paid and salaried, performing duties which had previously been performed by employees in the bargaining unit. - The Reemployment of Striking Employees and New Employees As. appears above, there were 691 emplo3Y`ees-37 in the bargaining unit when, the strike was declared. Between that date, July 26, and the date of the hearing, April 11, 1950, the greatest number of such employees on the Company's payroll was 327, which occurred in January 1949. - In the period from the date of the resumption of plant operations, August 16, to the date of the hearing, the Company reemployed a total of 245 striking employees, as follows : - August 16 to September 16, 160 strikers reemployed, including 56 maintenance employees in the period August 17 to August 20. September 17 to September 27, 42 were reemployed. September 27 to April 11, 1950, 43 reemployed. After August 20, the Company did not hire any employees in its maintenance department because of its contract with Brown & Root, except a few instrument employees for duties not included in the above contract. However, 'when Brown & Root terminated the contract in, July 1949, 28 of its employees, all former strikers, were reemployed by the Company. At the same time the Company in order to complete its maintenance staff transferred 43 employees, principally production employees, to that department, and in addition hired 4 new employees. From' about August"20 to September 30, -the Company'-hired-108`new-,employees in its production, utility, and laboratory departments. Of this number all but 6 were hired on or before September 17, and these individuals were interviewed and promised employment prior to September 27 but reported for work about September 30. 6. The contracts with Brown & Root From the time that the Company commenced operations at the plant in the spring of 1945, until the early part of 1948, the bulk of the maintenance work was performed by the Gasoline Plant Construction Company, which built the plant, although there was a "gradual tapering off" of this work after the Com- pany established its own maintenance department in about April 1946. In the spring of 1947, Homer C. Wilson was placed in charge of this department with instructions-to build up the same so- that.the,Company}itself could take-care of 17 Of this number 415 had signed union check-off authorizations. 696 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD the "normal amount of maintenance" work required' at the plant'e At the time Wilson assumed supervision of the: maintenance. department, the Company and Gasoline Plant Construction Company each had about 280 employees engaged in maintenance work. Gasoline Plant started removing its employees from the plant about January 1, 1948; but it is not clear' just when. the removal was completed. 'As of July 26, the, Company' had approximately 427 employees (exclusive of supervisors) in its maintenance department , including warehouse employees. On July 27, Bowen stated that certain repair and, alteration work was, neces- sary at the plant and as this, work could be done, only while it was, shut' down, ° he decided to have it performed at that time,. Bowen and his staff concluded this work had to be done by a contractor, so he talked with the Gasoline Plant Construction Company- in regard to performing the work but this Company was not in a position to handle the job because of other commitments. Bowen then contacted Brown & Root, and after several conferences, the latter, on about July 29, agreed to do the work. Brown & Root then set forth its terms in a letter to the Company, dated July 30, which states in substance that it will 'perform maintenance work as requested by the Company, using its own labor force and necessary equipment and the Company to pay the cost of the labor furnished, plus a fee ,of 50 percent of such sum. The latter further states that work will commence on August 2, with as many employees as Brown & Root can provide, the number to be increased to meet work requirements, and the contract to be effective for 1 year subject to either party terminating the same on 60 days' written notice. ' The contract was accepted by the Company on July 31. On August 5, the Company wrote Brown & Root stating that it in- terpreted the duration and termination clause to mean that the contract would. ' be effective for a minimum of 60 days. /On August 2, Brown & Root commenced work at the plant which included repairs and alterations to the steam lines, installation of large valves, piping, and bypasses, freeing frozen compressors, and inspection of, and repairs to, water lines. By August 11, practically all of the essential work had been completed by Brown & Root and the plant was ready for operation. As appears above, production was resumed at the 'plant on August 13, with supervisors, and on August 16, ' some of the ,striking production employees re- turned to work. As also set forth above, the Company at that time did not offer to reemploy its striking maintenance employees. As early as August 13, Bowen talked with Brown & Root in regard to a long-term maintenance contract and the firm indicated its willingness to accept such contract provided the terms were satisfactory. Between that date and August 16, Bowen frequently dis- cussed with John Fennebresque, manager of the chemical division of the Com- pany at New York, the possibility of continuing the Brown & Root contract on a permanent basis. Before reaching any conclusion in this manner, Bowen stated: ... in all fairness to the employees in our Maintenance Department ...- we would give them an opportunity to come back to the plant. That was the reason why we put that [advertisement of August 17 through August 18 The Company between 1945 and 1948 engaged contractors, in addition to Gasoline Plant Construction Company, for specific jobs . Thus, in 1947, the Company engaged Arthur Brothers to make changes in the cooling system, engaged Sam Kerns, painting contractor, vi'esheimer was called in to install new -towers , and Brown & Root constructed roads, built ponds, and installed pumping equipment. 3° This was the first time the plant was shut down since production, started in the spring of 1345. CELANESE' CORPORATION OF AMERICA 697 20] in, especially for maintenance employees,. to clarify the condition of maintenance employees,, and we set a deadline :.: August 20th, .. . we would give them the time to come back, and we wouldr know exactly what stood as of that date, so we. could make a definite decision one way, or the other . , . By August 20, only approximately 56 maintenance employees returned to work and this number was insufficient to handle the Company's maintenance work. These employees 'were assigned to instrument, electrical, salvage, and ware- house'punits,or departments. Maintenance work in other units or departments 20 could not be performed so the Company, Wilson stated, decided to immediately negotiate a contract with Brown & Root "to take over all of our maintenance" on a full-time basis. Accordingly, commencing about August 20, technical and accounting. repre- sentatives of the Company and Brown & Root conferred upon the details, costs, and fees in connection with the handling of the Company's maintenance work on a long-term basis. As a result of these conferences, the Company and Brown & Root had worked out a preliminary contract about the last of August. A second draft, substantially the same as the preliminary contract, was prepared and about September 12, Bowen discussed the,same with Fennebresque in New York City. Bowen returned to -Bishop the next day and the following day .advised Brown & Root that he had conferred with Fennebresque and that the contract was satisfactory except for a few minor matters. About September :15, Bowen again conferred with Brown & Root at Houston, and while. the parties were in agreement as to the terms of the contract, it was not signed .because the firm wished to make additional copies and stated it would sign the contract and then forward the same to the Company for execution. Brown & Root signed the contract and returned it to the Company about September 22, and on September 27, it was executed by Bowen. The contract provided that Brown & Root would furnish such labor force, including supervision, I as may be neces- sary to perform all miscellaneous maintenance and repair work at the plant, and the Company to reimburse Brown & Root for the actual wages of its labor force plus a fee equal to 33 percent of the straight-time pay of such force. The number of employees in the force would be determined by the Company, except that reasonable notice must be given by the Company in case the force is either increased or decreased. The contract also provided the manner and method of performing the work would be under the control of Brown & Root, subject to final approval by the Company. The contract became effective as of the date of execution, and thereafter, until terminated by either party upon the giving of a X60-day notice in writing. , The parties operated in accordance with the terms of the contract until about May 27, 1949, when Brown & Root agreed to reduce its fee from 33 to 30 percent .since the Company. had been forced to curtail production because of increased inventories and falling off of sales. Again in June 1949, the Company was .in "very bad shape" as to inventories and sales, and was operating on only 50 percent of its production capacity. Accordingly, the Company on June 30, 1949, :requested in writing that Brown & Root immediately cut at least 100 men from' its working force at the plant. In answer to this request, Brown & Root, by letter dated July 5, 1949, advised the Company that the "substantial change in conditions" at the plant made it "uneconomical" for it to continue the work, and therefore it was terminating the contract 60 days from the date of the letter. The 20 These included pipe fitting, welding, rigging; insulating, painting, carpentry, cement finishing,- etc. 698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company then took over the maintenance work about August 2, 1949. i At that, time, and at the date of the hearing, the Company had about 150 maintenance employees secured as follows : 29 employeeswho had worked for? Brown' & Root, 45 transferred from the production department, 56 strikers who returned by August 20, and 15.instrument employees. The Hiring of Employees by Brown & Root After August 20, the Company did not hire any employees in its maintenance department, except for 15 employees in the instrument department. Brown & Root conducted its operations under its own superintendent and maintained its own employment office, time system, and badge system. The Company exer- cised no authority in regard to the hire, discharge, or discipline of Brown & Root employees, nor did Brown & Root-have any authority over the Company's em- ployees. However, there were occasions when the employees of the Company were assigned to work with those of Brown & Root. Brown & Root hired its own employees but in cases where the applicant had formerly worked for the. Company, it would, upon request, and in. accordance with its policy, submit the service record of the employee to Brown '& Root. The service record shows the job classification and rate of pay of the employee at the time he started to work with the Company and any changes made in the classification and pay rate. Wilson stated that the largest number of Brown & Root employees 21 at any one time was approximately 300. The records of the Company disclose that as of September 15, Brown & Root had 291 maintenance employees at the plant, the full quota established by the Company. 7. The change in company operations Commencing August 13, the Company put into effect certain changes, previously contemplated, in its production , laboratory , utility, and maintenance departments, the only departments staffed with hourly paid employees . These changes were completed by September 30. As of July 26, there were 198 employees in the production department including 31 chief operators , 111 operators, 41 helpers, and 15 laborers and utilitymen. The organization was directed principally to the chief operators . Prior to that time the chief operator was responsible for the operation of stated equip- ment, received a higher rate of pay than operators , and while looked upon as supervisors they could not effect any changes in operation without clearance from "top supervision," and exercised little if any authority over the other employees. This classification was eliminated In favor of "'shift supervisor," who was then responsible for an over-all operation, was placed on a monthly salary, given au- thority and discretion to effectuate changes in the operating process, and given the authority to make recommendations as to the hiring and firing of individuals as well as the imposition of disciplinary action . As of September 30, the Company had 171 employees , including 20 shift supervisors , 99 operators , 50 helpers, and 2. utilitymen. On July 26, the laboratory had 44 employees composed of 8 analysts , 25 assist- ant analysts , 6 samplemen , and 5 janitors. In the reorganization, samplemen were eliminated and a new category, laboratory assistant , was set up. The latter job combined the duties performed by the samplemen as well as some duties n The General Counsel offered in evidence individual employment cards used by Brown & Root showing 426 individuals were employed by it throughout the period July 1948 to July 1949. As stated by the General Counsel .-these cards were introduced . forrthe purpose of showing about 50 percent of the employees came from areas "far. removed from Bishop." CELANESE CORPORATION OF AMERICA 699 previously performed by assistant analysts. On September, 3p, there were 42 em- ployees in this department,,namely, analysts, 17 assistant,analystsi 14 laboratory assistants, and 3 janitors • r a As of July 26, the utilities department had 22 employees, comprised of 4 watch engineers, 14 operators, 3 handymen, and 1 janitor. Like the change made in the production department `regarding chief operators, the Company eliminated, watch engineers and established shift supervisors. On September 30, there were 20 employees in this department including 4 shift supervisors, 9 operators, 4 helpers, and 3 handymen. The changes in the maintenance department are discussed in connection with the Brown & Root contracts. 8. The meetings of September 3 and 4 While the strike was still current the company and union committees met, under the auspices of the conciliator, on the above dates at Corpus Christi. Allen stated that the principal discussion at these meetings centered upon the Company's contract with Brown & Root, which he termed unlawful and in violation of the Union's certification. In response to Allen's inquiry as to the duration of the contract, Bowen answered that it was effective for an additional 90'to 180 days. The,union committee then asked if the Company would reemploy the striking maintenance employees, provided the strike was terminated, and the Company replied ,that it could not do so because their jobs had been filled. Hajecate, like Allen, stated that the Brown & Root contract and the reemploy- ment of strikers was discussed, and in addition the committees also touched on wages as well as articles tentatively agreed upon as of the meeting of July 23-24. According to Hajecate, the Company "offered 15cents and the old con- tract for two years" and "rubbed out" all articles previously agreed upon. While Hajecate considered this "a pretty bad offer" the union committee would have attempted to "sell" It to the membership, but the Company made that "impossible" by stating that it would reemploy the strikers only as needed, and then without reference to any "semblance of seniority." Owens and Knichrehm, union committee members, testified to the effect that the purpose of the meeting was to secure an agreement with the Company which would permit the strikers to "honorably" return to work and that the committees did discuss such terms. The committees also discussed the reemployment of striking maintenance employees with the Company taking the position that be- cause of its contract with Brown & Root it could not reemploy any of such em- ployees until the expiration of that contract. The Company then offered the 1947 agreement for 2 years, plus an increase of 15 cents per hour, with the strikers being placed upon a preferential hiring list for future employment. This offer was rejected by the union committee. Clyde McCreary, also a member of the union committee, testifying from notes he made at the meeting, stated that on September 3, the Union offered to return to work pending the signing of an agreement. The following day the company committee offered the 1947 agreement for 1 year, plus the 15 cents hourly increase and other "additions" which included at least some provisions previouly agreed upon as well as other provisions that had been submitted to and rejected by the Union.28 With respect to the reinstatement of strikers the Company proposed, upon execution of an agreement, to reemploy the striking employees under a pref- 22 These notes were submitted to counsel for the Company for his inspection. 29 The agreed provisions were rates on transfer, holiday pay, leave of absence, hours, overtime, and bulletin boards. The other provisions related to vacations, severance pay, and sick leave. 700 DECISIONS 'OF NATIONAL LABOR RELATIONS BOARD erential hiring list in the order of their seniority with the Company. All of the foregoing proposals were discussed by the committees . The union committee also asked the Company if the contract with Brown & Root was temporary or permanent and whether it could be broken, to which inquiry Bowen replied, "We can't answer that at this time." The committees were unable to reach any agreement so the parties adjourned , subject to recall upon request by the con- ciliator. Bowen and Leach 'stated, in substance, that the Company offered the ' Union the same proposals as submitted at the meeting of July 23-24. They further stated that the Union was insisting that 'in'the event an agreement was reached all striking employees were to be reinstated within 24 hours. The Company pointed out that such reinstatement as to maintenance employees was not feasible because of the Brown & Root contract, nor could the Company reinstate the production, utilities, and laboratory employees since they had been replaced by new employees. However, the Company (lid offer to place the strikers upon at preferential hiring list and to reemploy the striking employees as vacancies occurred. - . For the first time in the course of the negotiations the union committee stated. that it was willing to reduce its wage increase demand from 30 cents to 25 cents, per hour. Although the committees discussed various proposals, and terms they reached no agreement and the meeting concluded with the committees agreeing. to meet again if requested by the conciliator. No meetings have been held between the committees subsequent to the above date, nor has any request therefor been made upon the parties by the conciliator.. 9. The events preceding the alleged refusal to bargain on and after October 'On'September 5, the union committee submitted, the Company's proposal of September 4 to the membership at a special meeting called by *the Local, and the, members voted unanimously to reject ' the same. The following day the secretary of the Local addressed a letter to the New York office of the Company relating the action taken by its members "with 'respect to the Company's pro- posal. At the same time the Local submitted a proposed agreement, or renewed its "offer," providing for an increase of 25 cents per hour, the acceptance of all articles tentatively agreed upon as of July 24, and further negotiation upon the remaining issues, except that severance pay be continued as in the 1947 agree. ment and that sick pay be granted to the extent as granted employees outside the unit. The letter concluded by warning that the members of the Local would refrain from working until the strike was called off by a majority of the mem- bership of the Local . The record fails to reveal any reply made by the Company to this letter, _ Again, on September 14, the Local sent a letter to the president of the Com- pany advising him that, as a consequence of the dispute , many employees , includ- ing experienced operators , had already terminated their employment with the- Company to secure positions elsewhere, and predicted that unless the dispute was settled quickly, at least "80% of the aforementioned personnel will leave, the employment" of the Company. Apparently, the Company did not answer' this letter. John H. Woods; a striking maintenance employee and a member of the Union,, testified that on September 15, ow his own initiative he went to the home of'.' Wilson ( maintenance superintendent ) for the purpose of ascertaining what Wil- son "thought could be done to help us . . . in the way, of settling the strike."' Wilson told Woods 'he "didn't- think - there was anything we [the Union] could! do" and in the course of the conversation stated that Knickrehm, Austin, Penner;. CELANESE CORPORATION OF AMERICA, 701 and Woods "would never work for Celanese again:" 24 Wilson also expressed the opinion that Bowen would not talk to the union committee because "some of the boys he had named" were members thereof:; Woods, thereupon asked if the Company would talk with the Union, provided it changed the membership of the committee, and Wilson replied "he thought they would." However, he did not recommend or discuss any_ particular changes. Wilson, according to Woods,- further stated that Bowen "didn't, like Hajeeate" and "didn't think he would talk any business" with him. Wilson admitted.that he had a conversation with Wa'os about September 16,-but..denied that he made the foregoing remarks at- tributed to him by Woods. Woods immediately reported his conversation with Wilson to the union committee and a few more "leaders of the union." Upon receiving this information, O. V. Beebe, a member, of the committee, called Bowen and advised him that a new committee had been selected by the Local and re- quested the Company to reopen negotiations, but B.owen declined saying he "could see no useful purpose in meeting" with this committee. Travis Prit- chett, then president of the Local, testified that a committee of five, composed of himself, Ward Johnson,'Bill Briscoe, and two others whose names he could not recall, was "appointed" tocontact Bowen and, without prior notice or ap- pointment, went to the plant to see him.. Pritchett saw Bowen,, while the re- maining members waited outside the plant, and. asked him to meet with the committee, but Bowen refused because he had no way of knowing that "we were representing the local." Bowen admitted that he talked with Beebe on the afternoon of September 15, and told Beebe that the Company was willing to negotiate with the Union but that any request for such a meeting must be made by "some duly authorized member" thereof. Bowen also admitted that he talked with Pritchett on the morning of September 16, concerning a meeting with the committee and gave Pritchett substantially the same answer as he had previ- ously given Beebe. a. The withdrawal of the picket line On September 16, the picket line was withdrawn from the plant. The man- ner in which this action was taken is not without conflict. Allen was asked If the members of the Local held a meeting and voted upon the question of remov- ing the picket line, and he replied : The Strategy Committee of the union and the officers along with the Inter- national people, surveyed the situation and decided to withdraw the picket line.... The striking employees, Allen continued, were then "instructed" (seemingly by the above group) 'to report to the plant and register for work as the decision to withdraw the pickets made it possible for the strikers to go "through the picket line" and "to register without closing the picket line." Knickrehm testified that the Local, in response to requests from a number of members to call off the picket line, held a special meeting for that purpose and the membership "moved to call the picket line off and they moved not to call off the strike at that time." J. S. Penner, secretary-treasurer of the Local, stated that a meeting was held wherein the membership voted to withdraw the picket line but that no vote was taken on the question of "continuation of the strike." Penner produced the minutes of local meetings held between July 1 and Novem- ber 1, and the parties stipulated that these minutes failed to show any meeting-- held on or about September 16, or that the membership at any time voted upon the. action as above stated. The Company received no notice in respect to the 4 This phase of the conversation is discussed , infra, p. 713. 702 DECISIONS • OF NATIONAL LABOR RELATIONS BOARD withdrawal of the picket line or that the strikers had been instructed to report to the plant. Following the instructions thus'issued, a large number of strikers went to the, plant on September 17 and "registered" for work. The Corpus. Christi Caller Times, issue of September 18, reported the Union's withdrawal of its picket line at the plant and quoted Pritchett as stating that "the strike is still on" and that the removal- of the pickets was merely "a shift in tactics." Pritchett testified that he believed he had been correctly quoted in the news- paper article. - At the same meeting the membership of the Local voted to replace committee members Penner and Knickrehm with Charles Lumpkin and Bruce Underwood. Prior to that time, in August, Pritchett, as alternate, took Austin's place on the committee when the latter "left." About September 11, Beebe was elected to replace Owens, who resigned from the committee. McCreary was also replaced subsequent to the meeting of September 4, but the record does not reveal the name of his successor, nor the date that he was chosen. On September 30, the membership of the Local voted to terminate the strike and .by letter, dated October 4, notified the Company that the strike against the Company "had officially ended," as of the above date. b. The refusal to bargain on October 8 On October 5, Hajecate sent a letter to the Company requesting a meeting for the purpose of negotiating an agreement, and suggested October 11 as a suitable date. The Company, by letter dated October 8, advised Hajecate that the plant was "operating at 100% capacity" and to its knowledge and belief the Union did "not represent any of the employees now working in this plant." The Union made no further requests for meetings, nor have any meetings been held between the parties. Conclusions on the Refusal to Bargain between July 24 and October 8 a. The labor relations background of the Respondent Before entering into any discussion of the facts concerning the present allega- tions that the Company has engaged in unfair labor practices, it is appropriate and proper to consider the labor relations history of the Company (N. L. R. B. v. Algoma Plywood and Veneer Company, 121 F. 2d 602, 605 (C. A_ 7) ; N. L. R. B. v. Montgomery Ward d Company, 157. F. 2d 486, 492 (C. A. 8) ; N. L. R. B. v. King- ston, 172 F. 2d 771, 774-775 (C. A. 6) ). As pointed out in the Respondent's brief, no decisions or orders involving charges of unfair labor practices have ever been issued against the Company, under either the original Act or the Act as amended, although the Respondent operates and has operated at least 12 plants in the various eastern States and Texas. Throughout this period the Respondent in the conduct of its business has dealt with many labor organizations, and negoti- ated agreements with affiliates of the AFL, CIO, and United 'Aline Workers.2' Concerning the Bishop plant the record reveals that this plant commenced operations sometime in the spring of 1945. Following the Union's certification as the exclusive bargaining agent for designated employees of the Company, the parties, about January 26, 1946, held their first meeting. From that date u The records of the statistical section of the Board do not disclose any decisions or orders entered against the Company in any unfair labor practice cases. These records reveal that the Company was a party in about 29 representation cases covering all its plants. Petitions in these cases were filed by various affiliates of the AFL, CIO, and UMW. CELANESE. CORPORATION OF AMERICA 703 until April the parties, apparently by consent, met infrequently, but in April negotiations, commenced in earnest and on June 21, 1946,, the parties executed an agreement, effective for 1 ,year with an automatic., renewal clause, subject to termination by' either party upon giving required notice. The.;; ollowing year the Union duly. terminated the -agreement and the ,parties again held a series of meetings extending over a period of 40 or 45 days, which 'resulted in the signing of a second agreement on July 24, 1947. This agreement was also effective for 1 year and contained an automatic renewal and 60-day termination clause. Frank Nason, international representative of the Union, assisted the Local in the negotiations and Gindoxf stated that relations between the Com- pany and the Union were "very:good" throughout the entire period of bargaining. In accordance with the terms of the above agreement,. there was established at the plant a union workmen's committee and a management committee which, met jointly every month, for -the purpose of settling verbal complaints, written grievances under the third step of the grievance:procedure outlined in the agree- ments, and to discuss working conditions generally at the plant. Gindorf.served as secretary at the joint meetings and prepared minutes of the meetings which he submitted to each committee. Gindorf stated that during the contract year, June 21, 1946, to June 21, 1947, 15 written grievances were submitted to the management committee, of which 13 were settled :at : joint meetings of the committees, and 2 went to the plant manager under the grievance procedure provisions of the agreement. The 2 grievances were withdrawn by the Union prior to any determination .by the.plant manager. During the.period July 24, 1947, to July 24, 1948, 6 written grievances were presented and submitted to the management committee,. all of which were settled. There is no evidence that any work stoppage, strike, or lockout occurred during the entire period covered by the agreements. b. The appropriate unit and the Union's majority The parties stipulated that on December 13, 1945, the Union was duly certi- fied by the Regional Director as the exclusive bargaining representative for all of the Respondent's employees in the unit described above. The undersigned finds this unit to be appropriate for the purposes of collective bargaining and that the Union represented a majority of the employees therein from December 13, 1945, to September 27, 1948. c. The refusal to bargain between July 24 and October 8 The General Counsel contends" that the Company refused to bargain on July 24, when the Company, after submitting proposals to the union committee, de- clared, as stated by the General Counsel: "That's our proposal , take it or leave it, and if you don't take it, we 're withdrawing every offer we have. made." The Respondent asserts that during the negotiations the Company granted substan- tial concessions to the Union and otherwise performed its statutory duty to 26 Since the General Counsel presented neither oral argument nor a brief, his conten- tions are rather obscure. For instance the General Counsel in the interrogation of witnesses seemed to stress the fact that the Company failed to submit a full and com- plete written counterproposal to the Union's proposed agreement. The witnesses uni- formly stated that the parties agreed to use the Union's proposals. as a basis for discussion. Further, Hajecate admitted the Union had never requested the Company to submit written counterproposals. Clearly there is no substance 'to this point. for theme is no duty upon the Company to submit written counterproposals.. unless requestedto do so. (Globe Cotton Mills v. N. L. R. B., 103 P. 2d 91, 94 (C. A. v).) _ - 704 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bargain in good faith with the representative of its eniplo'yees, therefore, the failure to come to terms was due to the adamant position of the Union, par- ticularly in respect to its wage. demands, rather than any unlawful acts or conduct on the part of the Respondent. The Company further asserts that the union committee was dominated and controlled by Hajecate, who refused to permit any discussion on the subject of wages, engaged in stalling and dilatory tactics on matters of minor importance, and was more interested in declaring a strike against the Company-tha.useeuring an agreement, gave every ilidication of bargaining in bad faith, and was eventually removed as. a repre- sentative and as a member by the International Union.27 Finally, the Company urges-that Hajecate's attitude and demeanor precluded the parties from reach- ing any agreement. In prior lengthy negotiations, the Company points out Nason, the international representative, who acted As spokesman for the union committee, while a hard and firm negotiator, unlike Hajecate, entered into and conducted 'the negotiations iira fair and reasonable manner and as a consequence the Com- pany and the Union executed agreements in 1946 and 1947, which served as the basis for peaceful labor relations for a period of 2 year's. Although the Company devoted much time and energy to the manner in which Hajecate acted during the discussions arising at the numerous meetings, it is neither essential nor proper in'these proceedings to determine whether Hajecate is;'the villain as pictured by=the Company, or the misunderstood individual .seek- ing only to represent the best interests of the Union. First, it must be remem- bered that Hajecate was presenting d'emand's approved by the Local, which authorized strike action if they were not met, and that the counterproposals made by the Company, particularly in regard to Wages, were submitted to and rejected by the membership of the Local. Further, union committee members were fully cognizant of the tactics adopted by Hajecate, as was the membership since the committee made regular reports at local meetings concerning the prog- ress of negotiations. Despite these cogent facts the membership of the Local did nothing whatsoever to repudiate Hajecate or his policies until its meeting of September 2, when a motion to replace Hajecate was put before the member- ship, which motion was defeated by a vote of 93 to 22. Hajecate continued as •an7international representative of the Union until about February 1949, when he 21 About February 1949, Hajecate resigned as international representative 'to become secretary-treasurer of Local 227 at Houston. According to .the International Oil Worker, an official union publication, Hajecate and the president of the local were removed from office about October 18, 1949, and Hajecate suspended from membership in the Union until the next union convention. This action was taken allegedly because Hajecate, in .the course of a lockout by the Dlathieson Chemical Corporation, converted the same into a 'strike, which resulted in the arrest of 30 pickets and "jeopardized" the employment rights of many union members. In addition he attempted to prevent international officers from performing their duties during the so-called lockout and made slanderous, threaten- ing, and profane remarks against these officers. As a consequence of this dispute certain members of Local 227, about April 20, 1950, filed a complaint in the District Court of the United States for the Southern District of Texas being known as Hutto, et at. V. Oil Workers International Union, where in the plaintiffs claim that by reason of the Union's failure to exercise reasonable diligence and care in the negotiations with Mathieson the plaintiffs were discharged, for which they claimed $651,000 as damages. This action was awaiting trial at the time of the hearing. hi addition, the Union about October 22, 1949, filed an action in the District Court of Harris County, Texas, against Hajecate and others , praying that Hajecate be restrained from acting on behalf of Local 227, and for other relief. This action Was settled by the parties. The foregoing details are recited only for .the purpose of showing Hajecate' s association with the Union subsequent to the events in this, case and the matters thus set forth have not been considered by the, undersigned in making any findings or reaching any conclusions herein. CELANESE CORPORATION OF AMERICA 705 resigned to become secretary-treasurer of another local at Houston. In con- sidering all the evidence bearing upon the negotiations there appears. to be merit to the Company's complaint concerning Hajecate's.attitude, which left much to be desired, and while the undersigned would certainly , not. recommend Hajecate for any meritorious award for the role he assumed in the, negotiations, neither would he suggest Hajecate as a candidate for the. lower regions because of his actions and conduct therein. Moreover, the testimony of Hajecate bear- ing upon Vie basic material issues does not differ in substance from. the testi- mony of other members of the union committee who testified at the hearing and, in the opinion of the undersigned, this evidence, assuming it to be uncontradicted, still does not establish a refusal to bargain on the part of the Company. Briefly, the General Counsel adduced evidence showing that on June 14 the Union submitted its proposed agreement to the Company and, as the Union did not request any written counterproposal thereto, the parties used the proposal as the basis for the negotiations. Between June 17 and July 22, the committees held about 21 meetings in which, Hajecate admitted, the Company discussed the proposals "clause by clause," and that the parties were able to reach agree- ment upon 12 provisions contained in the Union's proposals. These articles were reduced to wrifing and signed by the committees as agreement was reached (and Hajecate identified the written memoranda thereof at the hearing. Hajecate stated that "we [the committees] got around to wages" about "the latter part of the [1947]. contract,"-which expired midnight, July 23. At that time the Union was demanding a 30,-cent per hour increase and on July 20, the Company resented a written proposal offering 13 cents per hour, with other monetary concessions. Upon receiving this offer the union committee advised the Company that it "was much lower than what the people wanted" and it was rejected by the committee as well as the membership of the Local. At the meeting of July 23-24, the Company raised its offer to 15 cents. per hour, but this offer was similarly rejected because the union committee "had instructions to accept no less than twenty-five cents," the Union, as stated by Hajecate, having reduced its demand to that sum. In regard to seniority, Hajecate said that'the Union was insisting upon a clause providing that the oldest man in point of service be selected for promotion, provided he was "fit and able" to perform the work. While the parties were unable to agree upon seniority terms, the Company did discuss the provision on at least 2 occasions, seemingly on July 23-24, and although it agreed to seniority "in principle" the. Company did not wish to be bound by the Union's proposed clause. Other provisions suc''i as sick benefits, severance pay, and funeral allowance were discussed by the committees but no agreement thereon was concluded. The parties being unable to agree upon wages and seniority, the meeting of July 23-24 concluded, according to Hajecate, -with the Company withdrawing all tentative agreements previously executed. In the course of the strike which followed on July 20, the Company was requested to and did meet with the Union on two occasions. At the first meeting of August 11, the position of the parties remained unchanged and nothing was accomplished. The discussions at the second meeting of September 3-4 con- tered principally upon the reemployment of strikers and the Brown & Root contract. 'Hajecate conceded that the Company offered the 1947 agreement, plus 15 cents per hour (exclusive of the articles tentatively agreed upon), but that acceptance of this proposal was "impossible" because the Company would not immediately reinstate the strikers and offered only to place their names upon a preferential hiring list. Contrary to the inferences sought to, be created by 706 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD Hajecate and Allen,' Penner plainly stated'that it was at this meeting that the Union first reduced its wage increase demands" from 30 cents to 25 cents per hour. So much for the General Counsel's case. The evidence adduced by the. Respondent;--as set forth above, clearly shows that it recognized the Union as the exclusive representative of its employees and at all times met and discussed with the Union the various terms and condi- tions of employment as proposed by the Union, in the course of which the Com- pany granted substantial concessions on many issues, including wages, and the failure to come to terms was not attributable to any action on the part of the Company to avoid its obligation under the Act, but solely because of the adamant position of the Union on the issue of wages., Of course, it is- now well: settled that the "Act does not compel agreements between employers and employees. It does not compel any agreements what- ever." (N. L. R. B. v. Jones '& Laughlin:,.301 U: S. 1, 45.)..All that is required is that the parties meet and negotiate in good faith in an effort to work out an agreement and the obligation of good faith rests upon the labor organization as well as the employer. (N. L. R.'B. v. Kentucky Utilities Company, 182 F. 2d 810; 813 (C. A. 6) ; N. L. R. B. v. Express Publishin ,q Company, 128 F. 2d 690, 692 (C. A. 5), certiorari denied, 317 U. S. 676.) The presence or absence of good faith in bargaining is purely a question of fact and is resolved in the same manner as any other factual issue (N. L. R. B. v. Martin Bros. Box Co., 130 F. 2d 202, 208 (C. A. 7), certiorari denied 317 U. S. 660). -. In view of the foregoing, the record as a whole, and the favorable labor rela- tions history of the Company, the undersigned is convinced and finds that the Respondent did not refuse to bargain in good faith with the Union upon its proposals . True, the parties were unable to reach agreement upon the question of work stoppages, holidays, vacations, sick benefits, severance pay, seniority,' and wages but the fact that the negotiations failed to terminate in an agree- went is not the controlling factor in determining whether there has been a re- fusal to bargain. It is abundantly clear from the record that the Company made counterproposals to the above provisions and each was discussed at the nu- merous meetings held between the committees. ' By doing so the Company dis- charged in full its duty under the Act. It is equally clear from the record, and the undersigned so finds, that the Union's adamant position on its wage 'demand of 30 cents per hour was the principal, if not the only, issue, which. -led to the impasse on July 24. And certainly it cannot be argued that the Act or the decisions of the Board imposed any duty upon the Company to yield to, the Union's wage demand, or any other demand pertaining to hours or conditions of employment. Moreover, Section 8 (d) of the Act, which in effect codifies the ,bargaining standards developed under the Wagner Act, "does not require any party to make concessions" in the course of bargaining although obviously the section prohibits either party from maintaining a position inconsistent with the rights of the other party thereby precluding the reaching of an agreement (American National Insurance Company, 89 NLRB 185 ). In passing upon this question the Board, in The Cincinnati Steel Castings Company case (86 NLRB 592, 594) stated : .But in this case, although the Respondent refused to accede to, the Union's demands with respect to union security, improved vacations, and increased 28 The Company states that agreement was reached on seniority In the early hours of July 24, but due to lack of stenographic help the provision was not reduced to writing and ,signed. The Union denied any agreement had been reached but admitted the provision was .discussed. It is immaterial therefore whether the parties did reach tentative agreement thereon. ' CELANESE CORPORATION'',OF AMERICA 707 insurance benefits, and made only minor concessions with respect to paid holidays, it was willing, at all times; to discuss these and other proposals made by the Union; °and made substantial- concessions, ; on wage :issues. `Under these circumstances, and in view of, its previous`contraclsiial rela- tions with the Union, we are not persuaded that the Respondent's intransi- geance on certain issues indicated an intention on its part to avoid coming to any agreement. We therefore find that the Respondent's position on these issues did not constitute a refusal to bargain in good faith. Again, the Board, in Collins Bakery Co., 90 NLRB 895, after finding that the parties had discussed the issue of union security, the only subject reached in the bargaining conference, stated: While it is true that each party remained adamant, neither party was obligated to agree to the; other's demand or position. Mere refusal to accede to a demand or to recede from a position, is not of itself a refusal to bargain (Union Manufacturing Company, 76 NLRB 322, enf'd N. L. R. B. v. Union Manufacturing Company, 25 LRRM 2303 (C. A. 5)) . . . we find that the parties reached an impasse on the union-security issue and they did not bargain further because each realized that neither would surrender nor be able to persuade the other to abandon its position. After the impasse occurred on July 24, and at the conclusion of the meeting, each party accused the other of withdrawing all articles upon which tentative agreement had been reached . In view of the irreconcilable positions of the parties at that time it seems immaterial, in reaching a conclusion as to the effect of this action, which of the committees first made the declaration concerning the- withdrawal of these agreements. This action; in the opinion of the under- signed, would be more consistent with the tactics, conduct, and demeanor ex- hibited by Hajecate in the negotiations than those displayed by the Company, so the undersigned finds that it was Hajecate who first made the foregoing an- nouncement. But assuming, arguendo, that the company committee did so, the result would be the same. It seems plainly established in the record that at the outset of the negotiations the parties stipulated to a procedure whereby .all articles or provisions as might be agreed upon in the negotiations would be reduced to writing and signed by the committees, subject to the parties con- cluding a' complete agreement. As far as the Union was concerned, Knickrehm stated, "no agreement would be,binding" upon it unless and until ratified by the membership. Surely, the procedure agreed upon by the committees was but the normal and reasonable manner in which to conduct the negotiations, other- wise the parties on reaching an impasse may well have found themselves saddled with a piecemeal contract, and the undersigned is unaware of any authority supporting such a condition 29 Indeed, the Board, in Allied Yarns Corporation, 26 NLRB 1440, 1450, held that it was "not inconsistent with the duty imposed by the Act [for the employer] to decline to enter into a written contract prior to reaching an accord as to all basic terms then the subject of discussion." Ac- cordingly, the undersigned finds that granting the Company withdrew its ap- proval of the tentative agreements, it did not thereby engage in any violation of the Act. . I 29 Compare, Superior Engraving Company, 83 NLRB 215, 218 (footnote 9). There the Board held that since the respondent had insisted at the beginning of the negotiations that all intermediate agreements should be tentative until final agreement was reached, no inference adverse to the union could be drawn from the union's failure to obtain a "partial contract or to profess grievances." 961974-1,52-vol. 95--46 F '708 DECISIONS Ok NATIONAL LABOR, RELATIONS BOARD Finally, the record reveals several, incidents which, although apparently not urged by the General Counsel as evidence, of a refusal to bargain, nevertheless :seem to warrant mention and comment. These incidents, are (1) the Brown & Root contracts, and (2) the unilateral action of the Company in making. changes in. its operating policies thereby. effecting some of the classifications in the bar- gaining unit. The complaint alleges the execution of the Brown & Root con- tracts as violation of Section 8 (a) (1): and (3)'and, as far as the a ndersigned .can determine, the General Counsel does not contend that the Company refused ,to bargain upon the subject of granting the maintenance work to an independent .contractor. While the Union made no formal demand concerning this topic; the record is plain that it was brought up for discussion at the meeting of Sep- tember 3-4. Under the circumstances, it seems sufficient to state that the record is equally clear that the Company did discuss this subject at least to the extent' requested by the Union. As to the second incident, Allen, at the above meeting, stated that the Union was attempting to find out "just where we stood at on .the operating people" because "some of the operations which we formerly had had under our jurisdiction, had been manned by technical people and super- visors and other people they hired in.". Allen's testimony fails to reveal any reply by the Company to his statement. Other members of the union committee .did not even refer to this matter. To the undersigned, Allen's statement is con- fusing and it is not certain whether•Allen was.referring simply to the new .employees hired to replace the strikers, or-whether he was directing his remarks to the operating changes made by the Company. In respect to these changes, Leach testified that the Company, commencing August .13, and concluding. Sep- tember 30, put into effect a reorganization plan, which had been under consid- eration for some time." This plan did result in some hourly paid employees being placed on a salary basis,, with different duties, thereby removing them from the bargaining unit. However, 'there is no showing that these changes were made for discriminatory reasons, therefore the Company was not obligated to consult with the Union prior 'to effectuating the same. In any event,, the Union did not request the Company to bargain with it concerning these changes, hence the Company cannot now. be accused of any refusal to bargain in this -respect (Walter Helmn ci Co'napamy,'87 NLRB 1169). By reason of the above findings of fact acid conclusions of law predicated thereon, the undersigned finds that the strike which commenced on July 26, and 'was officially terminated by the Union on September 30,.1948, was economic in, origin and was called by the Union to enforce its demands as to wages, seniority, and other issues described above, upon which the parties had reached an impasse. . Conclusions on the Refusal To Bargain on and After October 8 Having found that the strike was economic in its inception and, as stated :below, was neither prolonged nor converted into an unfair labor practice strike by virtue of any conduct on the part of the Respondent; the undersigned further finds that the Company did not refuse to bargain with the Union on and after October 8, in violation of the Act. It is undisputed that the Union "officially" terminated the strike on September 30,,and on October 5 requested the Company to meet with it for the purposes of negotiating an'agreement and suggested October 11 as a convenient date." The Company. refused this request and ".This plan is discussed supra, p. 698. 81 On September 5 and 14, the Union addressed letters to the New York Office of the Company which, in substance, set' forth the Union's contract terms and warned that the strike would continue unless those terms were granted by the Company. The Com- CELANESE CORPORATION OF AMER3CA 709 advised the Union that it did not believe that it represented any of the employees then working at the plant. Presumably the Union's request at this time referred to the same unit for which it -was certified in December 1945. The, General Counsel adduced no credible evidence indicating that the Union represented a majority of the employees on or about October 5. In this respect the General Counsel stated his position to he : "If the Board finds these strikers . remained employees there is no question but that there was a refusal to bargain on October 8th." Obviously, it was the theory of the General Counsel that the Union 's majority status continued under its certification of December 13, 1945. As set forth above, Bowen testified that on September 27 the plant was in full operation and had about 310 employees performing duties that had pre- ^viously been performed by the employees in the bargaining unit. The record -discloses that on September 30, the Company 'after its reorganization of the iplant, had 233 employees in its production , laboratory, and utilities departments, .including 24 shift supervisors and 71 maintenance employees , which accounts for 304 employees . However, the record further reveals that 6 'production ,employees were interviewed and promised employment prior to September 27, but did not report to work until sometime between that date and September :30. Thus, by including these employees , the Company had 310 employees in the above departments on that date . Of the total number of employees, .160 .,were striking .employees who returned to work prior to September 16, 42 were strikers who "registered" about September 17, and returned to the plant by September 27, and 108 were new employees hired between August 20 and Sep- `Member 27. At the same time Brown & Root had approximately 291 employees performing maintenance work under its contract. Granting that the reorganization of the plant did not affect the appropriateness of the bargaining unit, the unit on September 30 was composed of 279 hourly ,paid employees in the production , laboratory, utilities, and maintenance depart- ments. As of the same date the Company had 24 shift supervisors, 19 of whom had been employed in the production and utilities departments prior to the .strike-"and were promoted to these jobs, while the remaining 5 positions were .seemingly filled by newly hired employees . Therefore , out of 279 hourly paid -employees in the above departments , 183 were former striking employees (202 .strikers returned but 19 shift supervisors are eliminated ) and 103 were newly hired workers ( 108 new employees were hired but 5 shift supervisors are es- •cluded ). In order to reach a determination that the Union was the designated bargaining representative on October 5, it must be assumed that each of the re- turning strikers was a member of the Union at the time of the strike and still desired-to retain the Union as his bargaining representative . Conversely, it must be assumed that each of 103 newly hired workers did not wish the Union 'to act as his bargaining agent. Such reasoning is a solicism in the recognized procedure pertaining to the determination of theappropriateness of the unit and the majority therein. Neither the replacement .of strikers with new employees, nor the participation in a strike by employees is the controlling factor in deter- pany did not reply to either of these communications. It seems clear that the purpose and intent of these letters was to advise the Company of the Union's position in the dispute and, .'Since the Union 'did not make any request for a meeting, therefore, amount -to no more 'than a declaration of union policy. Moreover, the record Is abundantly plain that all negotiations from 1946 through 1948 were conducted at the plant level and not 'between the Union and top management officials located in New York City. In view of these circumstances the undersigned finds that. the letters do not set forth any -demand for a meeting for the purposes of engaging In collective bargaining, so the Company -was under no obligation to respond thereto. 710 DECISIONS' OF1 NATIONAL LABOR RELATIONS BOARD mining the question of the Union's majority. In. West Fork Cut Glass Company, 90 NLRB 944, the Board held that during the protected period of the Union's certification, the fact that the strikers had been permanently replaced. (lid not alone establish that the union had lost its majority, for "'there-is no certainty, for example, that the employees hired as replacements were not union adherents or that formerly antiunion employees had not changed their attitude toward the Union." Again, in McGough Bakeries, 58 NLRB 849, 853 the Board held that the failure of employees to cross a picket line "does not necessarily mean that their participation in the strike indicated selection of the Union as their collective bargaining representative . . ." for. employees "may, and frequently do, refuse to cross picket lines for reasons wholly unrelated to the merits of the particular labor dispute involved or to union membership and preference ..." but for other motives such as fear of violence, social ostracism, or being called "scabs." In the light of the foregoing decisions, and certainly the rationale in each is sound, if it can be assumed that the replacements may be union adherents or that returning strikers may have changed their attitude toward the union, by the same token it may be assumed that union members may have repudiated the union, especially where, as in this case, the Union engaged in an unsuccess- ful strike extending for a period of about 65 days. Moreover, in the West Fork Cut Glass case, supra, the Board, after pointing out that "unusual circumstances" may justify the challenging of the union's majority in the course of negotiations, stated that "the mere raising of the question of a union's majority status as' a condition precedent to bargaining within the certification year . . . [italics supplied], constituted a refusal to bargain, and since the question arose within that period, the company's contention was rejected. Here the Company did not raise the question until almost 3 years subsequent to the Union's certifica- tion and then only after the termination of a lengthy, unsuccessful strike, the execution of the Brown R Root contract, the reorganization of its plant, and the hiring of new employees and former strikers. A Board certification does not remain in force 'and effect ad infinitum. Speaking of the duration of a certifica- tion, Justice Learned Hand, in N. L. R. B. v. Remington Rand, 94 F. 2d 8% 870. (C. A. 2), declared: Our order must not then guaranty their power [under the certification], if it shall appear they have lost it ; but yet it should be given some pre- sumptive authority, for otherwise the Act will not -be workable. They will be the last representatives ; and the Respondent must challenge their power for this reason in good faith, and it must invoke an inquiry by the 'Labor Board under Section 9 (c) ... if it does not treat with them. But if it does so, we shall not treat its refusal as a contempt, until after the Board has certified the result. Again, in line with the principle that a Board certification does not continue ndefinitely, the Supreme Court, in Franks Bros. Co. v. N. L. R. B., 321 U. S. 702, 705, held that a "Board order which requires an employer to bargain with a desig- nated union is not intended to fix a permanent bargaining relationship without regard to new situations that may develop." (Citing, Great Southern Trucking Company v. N. L. R. B., 139 F. 2d 984, 987 (C. A. 4).) Further the Supreme Court, in N. L. R. B. v. Fansteel Metallurgical Corpori-- -tion, 306 U. S. 240, 261-262, held that the valid discharge of striking employees and the filling of their jobs with permanent'replacements justified the company in refusing to bargain with the union, stating : 0 . •r CELANESE CORPORATION OF AMERICA 711 In view of the change in the situation by reason of the valid discharge of the "sit-down" strikers and the filling of positions ,with. new men, we see no basis for a conclusion that after the resumption of work Lodge 66 was the choice of respondent's employees for the purpose of collective bargain- ing. [After sustaining the Section 8 (1) provisions of the Board or der] . .. But it is a different matter to require respondent to treat Lodge 66 in the altered circumstances as such a representative. If it contended that Lodge 66 is the choice of the employees, the Board has abundant author- ity to settle the question by requiring an election. In Dorsey Trailers, Inc., 80 NLRB 478, the union was, certified on May 11, 1945, as the bargaining agent in an appropriate unit and thereafter executed two successive contracts with the company, the last one being dated September 26, 1946. While this contract was in effect the union about November 20, 1946, in violation of the terms thereof, engaged in a strike and on November 26, the striking employees offered unconditionally to return to work. • However, the company, for economic reasons, was unable to reinstate the strikers (except three that it refused unlawfully to reinstate) until' January 6, 1947. The com- pany conceded that it refused, upon request, to recognize or bargain with the union during the strike but denied that its action was unlawful. The Trial Examiner found ( p. 501-502 ) that it was unnecessary to pass on the question of whether the company had engaged in any refusal to bargain because of the illegal strike, since there was no showing that the union represented a majority of the employees when the requests for recognition and bargaining conferences were made. The evidence as to majority consisted of the certification , the union shop clause of the 1946 contract, and the uncontradicted testimony that only a very small number of the employees were not members of the union at the time of the strike. As compulsory membership under the union-shop clause did not reflect an uncoerced majority as contemplated under the Act, the only question was whether the union was still the representative of the employees by virtue of its prior certification. The Trial Examiner found that while there is a. pre- sumption of continuing majority under a certification, the presumption had no application in the instant case because it is valid only- for a . reasonable time, usually 1 year, and here the certification was VA_ years old at the time of the alleged refusal to bargain. The Board, in reversing the Trial E ^aminer, found (484-486 ) that the certification was still effective and that the union retained its status as the bargaining agent82 because "under general principles and for the purposes of practical administration of the Act, such status is presumed to con- tinue until shown to have ceased or until such time as circumstances arise which indicate that the presumption no longer "holds true ." The Board concluded that the "circumstances" relied upon by the Trial Examiner did not provide suf- ficient reason to believe that a majority of the employees had repudiated the union at material times and, after finding that the company had unlawfully refused to bargain with the union , entered its usual order. In proceedings to enforce this order, N. L. R. B. v. Dorsey Trailers, Inc., 179 F.' 2d 589, 592 ( C. A. 5), the court refused enforcement of this portion of the order for the reason, as stated by the Trial Examiner, that the Board did not The Board found that the affirmative evidence disclosed that substantially all the employees were members of the union at the time of the strike . The Board also pointed out that when the second contract was executed, less than 2 months prior to the strike, the company in effect conceded the union's majority status, and the contract would nor- mally be regarded as a bar to a representation proceeding at the time of the strike. 712. DECISIONS OF NATIONAL LABOR RELATIONS BOARD sustain the burden of proving that the union represented a majority of the em- ployees so as to make the company's refusal to bargain with the union an unfair, labor practice. . Considering the entire record the undersigned concludes and finds that the certification of December 13, 1945, was not valid or effective on October 5, 1948, when the Union made its demands upon the Company, for the certification was then almost 3 years old, so the presumption as to the continuing majority of the Union thereunder is inapplicable because of the lapse of time. Further, any presumption -as to the Union's continued majority by virtue .of the certification was, under the facts and circumstances herein, sufficiently rebutted, and there are ample reasons to believe that the Union had lost its majority by October 5, 1948. (Cf. Superior Engraving Company, 83 NLRB 215, 217-218, enforced,. Superior Engraving Company v. N. L. R. B., 183 F. 2d 783 (C. A. 7) ; Bethlehem Steel Company, 73 NLRB 277, 279-280.) The undersigned therefore finds that by refusing to recognize or meet with the Union on and after October 5, 1948, the Company did not thereby engage. in any unfair labor practice. Conclusions and Findings on the Brown & Root Contract and the Reorganization Plan As set forth in the Respondent's brief, the contracts between the Company. and Brown & Root cover three separate phases of maintenance work performed by the latter. The first contract relates. to work prior to the strike, the second covers the period July 26 to August 20, and the third from August 20 to _ July 1949. The first phase is unimportant, except perhaps as background, and re quires no further comment. As to the second phase it seems well established that the repairs and alterations performed by Brown & Root were of such a type or character that even under normal conditions the Company would not have attempted to complete the same with its own maintenance force and equip ment, and accordingly, would have engaged Brown & Root, irrespective of any. labor dispute with the Union. Concerning the third phase, it is equally well. founded that had the striking maintenance employees returned to work, on or before August 20, in sufficient numbers to permit the resumption of normal maintenance operations, the Company would not have executed the contract with.. Brown & Root. However, since the Union and the strikers elected to settle their dispute through the use of legitimate economic pressure, so also was the Company at liberty to use all lawful means at its command to get its plant back into operation, including the right to hire replacements to fill :the jobs of the strikers. Instead of so doing the Company decided to engage Brown & Root: to perform the work previously performed by the striking employees. The execution of this contract, the General Counsel urges,. is a violation of Section 8. (a) (1) and (3) of the Act. The undersigned cannot agree with this contention.: The right and prerogative of the Company to conduct and operate its business in any manner it chooses is fully recognized, except that the Company, cannot: exercise those rights and prerogatives in a manner designed to interfere with the rights guaranteed its employees under_ the Act. (AppalachianElectr4c Power Company v. N. L. R. B., 93 F. 2d 985, 989 (C. A. 4).) Thus, in Pepsi-Cola Bottling Company of Montgomery, 72 NLRB 601, 602, the Board, in commenting upon this principle, plainly stated : We recognize that an employer may lawfully discontinue or reduce -opera- tions for any reason whatsoever, good or bad, sound or unsound, in its sole discretion, and without censorship from this Board, provided only that CELANESE CORPORATION OF AMERICA 713' Employer's action is not motivated by a purpose to 'interfere with and de- 'feat its employees' union 'activities. In further recognition of this doctrine the Board , in Mahoning Mining Company; 61 NLRB 792 , sustained the right of the company to enter into a lease with an' independent contractor covering the operation of one of its mines even though the- contract may have effected the appropriateness of a bargaining unit previously established . In passing upon this point the Board held (p. 803)' that an appro priate unit may subsequently become inappropriate , " Since changing conditions in. industry necessitate revision of 'bargaining units which ' will i est effectuate= the policies of the Act. The Board has never held that once it has established' an appropriate unit for bargaining purposes , an employer may not in good faith, without regard to union organization of employees , change his business structure,. sell or contract out a portion of his operations, or make any like change which might affect the constituency of the appropriate unit without first consulting the bargaining representative of the employees affected by the proposed business change." [Emphasis supplied.] (Accord: . Walter Holm & 'Company, 87 NLRB 1169. ) It follows therefore, and the undersigned 'finds, that the mere execution of the Brown & Root contract was not and is not per se, a violation of the Act. In the absence of any evidence to the contrary, the undersignedfiiids that the Company did not execute the contract for any discriminatory purpose or to, escape its obligation to bargain with the Union. Under these circumstances the. Company was not required to consult with the Union as the.representative of its employees before entering into this contract any more than if it was going out of business for nondiscriminatory reasons. (Walter Holm & Company,, supra.) For the same reasons, the undersigned finds that. the change in operations: effected by the Company was nondiscriminatory, hence not in violation of the. provisions of the Act. 10. Facts and-findings upon the Respondent's alleged unlawful conduct in the course of the strike The General Counsel contends that the strike of July 26 was prolonged and' therefore converted into an unfair labor practice. strike because the Company, through its officials and supervisory employees : (1) Uttered statements tending to discourage membership in the Union or to interfere with the rights guaranteed- .its employees; (2) sent notices to its striking employees offering them jobs at a- higher rate of pay than prior to the strike; (3) solicited individual strikers to. return to work; (4) unlawfully discharged and refused to reinstate three em- ployees and questioned these employees concerning their union affiliations;: (5) about September 17 refused, upon application, to reinstate certain strik- ing employees. a. The.unlawful statements As appears above, Woods, a machinist in the maintenance department, went to the home of Wilson, maintenance superintendent, about September 15, and asked what, if anything, could be done to settle the strike to which Wilson re- plied that he did not think there was anything the Union could do. In the course of this conversation Woods stated that Wilson said, "There were four of us that he knew of that would never work for Celanese again." The employees referred to were Knickrehm, Austin, Penner, and Woods. Wilson admitted that Woods came to his home about September 16, and-that the purpose of his visit was to 714 DECISIONS OF "NATIONAL LABOR RELATIONS BOARD secure theremoral of Brown & Root from the plant and get the men back to work: Woods asserted that if the Company would do so, lie "would guarantee to bring 200 maintenance men to work the next morning." Wilson stated that Brown. & Root could not be removed from the plant and that he could give no assurances concerning Woods' suggestions since the entire matter was beyond his authority. Woods, according to Wilson, said the union had a "belly-full" of Hajecate and had `.`just kicked him out of the union." Wilson then asked Woods if Hajecate or the union committee had advised the membership of the Com- pany's proposals and Woods replied that "so and so" did not report anything to the members. Wilson denied that he made any statement in respect to the reemployment or refusal to reemploy Knickrehm, Austin, Penner, and Woods. Knickrehm and Penner testified that about October 1, they had a conver- sation with Wilson, in a car outside the plant. Penner talked to Wilson "about the prospects" of the maintenance strikers returning to work and Wilson stated that the Company was not hiring any such employees because of its contract with Brown & Root. Penner then inquired of his chances of returning to work and Wilson replied that he would never again work at the Bishop plant or any other plant of the Company. ' Knickrehm, a production employee, also asked about his job and Wilson said that he could not definitely say that the same applied to Knickrehm as he was in a different department. Knickrehm further stated that Wilson said he was acting on orders from "higher=dip" but did not mention any names. In discussing the strike Wilson said the men, or the Union, "had let him down" by taking such action. Wilson testified that on the above date Penner and Knickrehm were seated in a car parked near the plant and called him to come over, which he did. Penner asked about the possibilities of his returning to work and Wilson told him' he was doubtful if he would return as Brown & Root was doing the. maintenance work and he did not believe that any vacancies existed. In answer to Knickrehm' s similar inquiry Wilson said he had no jurisdiction over Knickrehm and could not say when he might return to work. Wilson denied that he made any other statements to Penner or Knickrehm. The foregoing testimony of Woods, Knickrehm, and Penner, considered in the background of all the facts and circumstances in this case, fails to convince the undersigned that Wilson made the statements thus attributed to him. Here, Wilson became maintenance superintendent in April 1947, was a member of the company committee throughout the 1947 and 1948 negotiations, served on the management committee in the same years, and was present on August 11, when Bowen and Leach issued instructions to the supervisory staff in respect to the conduct or position to be adopted by the staff' in any dealings, or in any .contacts or discussions with the strikers. Again, while the record discloses that many other strikers contacted Wilson, there. is no evidence that, he di- rected any remarks to them 'that might be considered 'as 'unlawful' or. prohibited by the Act. In the teeth of this background it seems neither reasonable nor plausible that Wilson would boldly and unqualifiedly state that four men would never be reemployed by the Company, assuming their union membership or activity was the basis for this assertion. • The undersigned, upon all the evi- dence and his observation of the witnesses, credits the testimony of Wilson in respect to these statements and, accordingly, finds that the Company did not engage in any unfair labor practices by reason of any of the remarks made by Wilson to Woods, Knickrehm, or Penner. b. The campang/ notices to the striking employees The General Counsel asserts that the. Company by sending the written notice, dated August 12, to its striking production, laboratory, and utilities employees CELANESE CORPORATION OP4 AMERICA 715- offering reinstatement with an increase of 151 cents per "hour, thereby unlaw- fully solicited the employees to abandon the strike and return to work. As found above, the parties `on July 24 reached an impasse principally on wage terms and, on July 26 the Union declared a strike to enforce its demands. The object of the strike plainly appears from the slogan adopted by the Union, as early as July 21, "not twenty-nine but thirty," referring, of course, to the amount of its wage increase demand. This slogan and position the Union maintained until September 3 and 4, when it finally reduced its demand to 25 cents per hour. Moreover, there is no evidence that the Union registered any complaints with the Company concerning these notices, nor were they discussed at the meeting of September 3-4. Indeed, following this meeting the Union, on September 6, wrote the Company and, after stating its contract terms, advised the Company "that the strike would continue until such time as called off by a majority of'its members. Certainly, it cannot now be urged that the notices of August 12. had any bearing upon the Union's determination to continue the strike. (Anchor Rome Mills, Inc., 86 NLRB 1120.) Nor does the fact that the notices contained an offer of a wage, increase in the sum of 15 cents per hour make this"action,unlawful This wage increase; as well as other concessions, had been offered to the Union on July 24 prior to the stale- mate of the negotiations and rejected by both the union committee and the membership. Accordingly, the-Company was justified in subsequently granting such increases. (N. L. R. B. v. Crompton-Highland Mills, Inc., 337 U. S. 217; Bradley Wash fountain Company, 89 NLRB 1662.) In Penokee Veneer Company, 74 NLRB 1683, the Board found that the company violated Section 8 (1) of the Act, where, after an impasse had occurred in the negotiations on wages and other matters, the company attempted to poll the individual striking employee as to whether he would return to work under wages and conditions proposed by the company and rejected by the union, for in so doing the company sought to bypass the union as the bargaining represen- tative and to deal with the strikers individually. In proceeding to enforce the order (N. L. R. B. v. Penokee Veneer Company, 168 F. 2d 868 (C. A. 7) ), the court rejected the above finding and conclusion, stating (pp. 870-871) No previous unfair conduct had ever been charged against respondents and the entire record discloses ready and persistent cooperation in an earnest effort to bring about an agreement. We think the conduct of the employers in sending the letter of April 15th must be measured against this background of complete recognition of the rights of the employees tuider the National Labor 'Relations Act . . . [citing Algona''Plywood cE Veneer Company, supra.] A fair interpretation of the letter, we think, discloses the real object was to ascertain how many, if any, desired to return to work on the terms that had been offered. No other different terms were mentioned to the employees and.the letter discloses no effort whatsoever on the part of the companies to bargain with the employees individually . . . under such circumstances, and with this background, the conclusions drawn by the Board from the communication of April 15th are not justified. Again, in Kansas Milling Company v. N. L. R. B., 185 F. 2d 413 (C. A. 10), the court sustained the principle that an employer had the right to replace economic strikers with permanent replacements and to address communications to the striking employees concerning the strike issues and their employment statu$,..,with-the.company. ' There the company and the union reached an impasse in the negotiations on certain issues and shortly thereafter the union declared a strike. The strike, however, did not result in a complete shutdown of opera- 716' DECISIONS OF NATIONAL LABOR) RELATIONS BOARD tions.. The day the strike commenced', August, 11; 1947,.the company addressed .a lengthy letter to each of the strikers, outlining its, position: on the issues. 'On August 15, the company notified: the strikers,by letter that it intended, to. "re- man" the plant and warned the- employees that unless they returned. to, work by August 23; and' "it hoped they would return;" the company, had no alternative. than, to hire new employees to take • the jobs- "vacated" by the strikers. On September 6, the company informed the strikers that they were no longer ,covered by the group insurance policy and had until September 25, to convert . -to- a standard. policy. On September 12, the company advised. the strikers that 'since they had "terminated" their employment they should call at the plant and -collect their personal effects: The, Board' found. that. by the foregoing acts of 'the company, the strike was, converted- into an unfair labor practice strike at least by August 23, the date on which the strikers were to return to work. or -no longer be considered as employees and would be considered only as. new .applicants for future vacancies. The Board further held that this became the "paramount issue" in subsequent negotiations to settle the strike and the effect of this unlawful, conduct. prolonged. and converted the economic strike into an unfair labor practice strike: The court held that in its letter of August '11, the company intended to lay its case before the employees and persuade -them to return to work, but the letter "was mild, factual and free from intimi- dation or threats." The letter of August 15, the court stated, did not contain any threat of discharge if the strikers did not return to work by August 23, but merely advised the employees that the company intended to hire replace- ments, which it had the right to do, so its warning to the strikers that the company proposed to follow a lawful course of action did not constitute an unfair labor practice. Similarly, the letters of September 6 and 12 were not violative of the Act. since the company assumed that the strikers, were no' longer employees as they had been replaced by permanent employees, and this undoubtedly was true, provided they had been.thus replaced. The court also 'rejected the Board's theory that the status of the striking employees was the only issue remaining after August 23. As the Board made no findings as to the number of permanent replacements which had been made by October 18, the date he strikers applied for reinstatement, the court remanded the case to the Board for the purpose of taking additional evidence on this issue. Under the circumstances and in view of the -foregoing authorities the under- signed finds that by sending the notices of August 12 to its striking employees offering them reinstatement and by placing in effect the wage increase offered to and rejected by the Union prior to the stalemate in' the negotiations, the -Company did not thereby engage in any unfair labor practices. c. The solicitation of individual striking emnployees to return to work The evidence adducted by the General Counsel in support of his contention 'that supervisory employees solicited individual strikers to return to work may be summarized as follows : J. D. Chambers, chief operator in the production department, related,that in -the latter part of August, W. P. Orr, unit supervisor, stopped by Chambers' Home and "we shot the breeze awhile." Chambers,. in response to Orr's ques- tion, stated he was getting along fine and had good prospects of getting another :job. Orr told Chambers that his job was still open and that chief operators were to be put on a salary basis which would- mean a better position, although Orr did not mention the, salary rate. Orr placed''the conversation as occurring about September 11, and, eliminating the details, stated that the conversation CE'LANGSE' CORPORATION . OF AMERICA. 717 was directed principally to Chambers'. working, at Texas City, his securing ,employment' elsewhere, and his resignation from , the. Company,.. Orr denied that he made` any reference' to, or suggestion that, Chambers- return to the plant: C. F. Saunders ; maintenance employee, stated that about the- middle of the strike, he- talke' to, Sul foreman Whitehead , whom he know "pretty well," and Whitehead said - he should: go: back to work as the Union had no chance of winning. Saunders replied he thought the Union could win aipd he was going to stay out. Concerning the conversation,, Whitehead testified that Saunders -:asked:hi-m: what'he- thought of the strike and Whitehead said it looked bad. R. L. Carter; maintenance employee , stated that about August 6, Subforeman Gray told: Carter and J. B. Fowler , if you want' your job you better come back 'while you, have a chance . Carter had several such conversations with Gray. Admittedly, Gray did not mention wages during- these conversations. Claude Gilbraeth said - that Gray , i n August, told Gilbraeth and Jin-l Fowler, if we wanted to come back to work, he would like to have us. F. E. Southworth , utility department employee, said he met Butler, assistant superintendent of the utilities department, one morning in Kingsville and Butler stated that with Southworth '•s ability he could get a better-paying job, that of watch engineer, if -he returned to work. Southworth answered he had been offered the job before the strike and "didn't think he would take it now." Butler denied making any such statement. J. L. Fowler, maintenance employee , testified that Foreman McCoy telephoned him in the early part of. the strike and stated . he would' like to, have Fowler return to work. Fowler said he would have to think it over and would get in touch with him. Fowler did not notify McCoy, so about 2 weeks later McCoy again called but Fowler refused to talk with him because he.was sleepy. McCoy said that about July 29, he called Fowler, pursuant to a message he had received , but that Fowler said he was sleepy and did not want to talk. J. E. Walshe , maintenance employee , stated that Foreman McCoy, prior to the time Brown & Root first came into the plant, telephoned Walshe and told him "to disregard the picket line, that the union would never win the :strike and to come back to work." Walshe further stated that McCoy sub - stantially repeated this conversation in a second call and that McCoy as well :as his wife personally came to Waishe's home in an effort to get him to return to work. Walshe could not fix the date of the events . other than they occurred during the strike . McCoy testified that Walshe and his wife came to McCoy's home on separate occasions apparently seeking information concerning the strike but McCoy denied that he ever requested Walshe to return to work. McCoy also denied that he was married at the time. Apart from denial of these incidents and the absence of any dates, Walshe seemed to'be very con- fused throughout his testimony . Thus he'could not even remember the month or year when he was first employed by the, Company, nor could he remember when he was employed by Brown & Root . His testimony is -therefore' disre- garded by the undersigned. George Cuevas, maintenance employee, said that Foreman Heard came to his home during the strike and in effect asked him if lie was going to return to work. Cuevas said he would not return and gave his locker key to Heard. After the picket line was withdrawn Cuevas secured employment with Brown & Root upon Heard's recommendation . Apparently , Heard recommended Cuevas for employment with the Company when Brown..& Root left the plant, but ,Cuevas was not employed because he could not pass the physical examination. 718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Heard said that Cuevas was empl'oyed•on the wash rack and about 3 weeks. aftei the strike began -he went to Cuevas' home. to get the keys to the locker where the equipment was kept. Heard denied that he asked Cuevas to return to work at the plant during the strike, but did talk to Cuevas about working for Heard at his home,on Saturday, as Cuevas had done in the past. Concern- ing his employment with Brown & Root, Heard said he simply told - Cuevas that Brown & Root had a vacancy ion the wash rack and if he was interested in the job he should go out there. Carl E. Duke, maintenance employee,' stated that sometime during the strike. Foreman Heard walked up! to Duke and several other employees in, Kingsville and said, "Duke, I think you are all a bunch of damn fools," to which Duke replied that is "a matter of opinion." Heard said he met Duke on the street in Kingsville and each asked what the other was doing: Duke stated he was taking it easy and going to San Antonio. Joe Lucas, maintenance employee, said that during the strike Foreman Kolodzie told Lucas and Woodrow Hayes that if they returned to work by a certain date they would receive a wage increase the same as other employees had been given and they would have a job as long as they wished. Lucas had knowledge of the' Company's increase previously offered to the Union 'and understood that if he returned to work he would receive such increase. Kolodzie' denied that he asked Lucas and Hayes to return to work. According to. Kolodzie, Lucas asked what he would do if lie was in Lucas' place and Kolodzie replied since he was not on strike he could not give any opinion. . B. H. Lamb, maintenance employee, stated that Foreman Albert, in the course of the strike, came to Lamb's home and told him that if Lamb would come back to work he could have a job but Lamb refused because he would not cross the picket line. I The foregoing summary constitutes the General Counsel's case on the solicita- tion issue, perhaps in more detail than necessary. However, the undersigned has done so because the record clearly reflects diligent and painstaking efforts on the part of the General Counsel to adduce all available evidence in this respect and did produce approximately 128 employees who went .on strike on July 26. But despite his commendable efforts, the General Counsel concluded with little if any substantial evidence to support this allegation of his complaint. The testimony of these 10 or 11 witnesses, out of more than 600 strikers, viewed in the most favorable light, show only isolated instances where a foreman or a subforeman, in the course of apparently friendly and casual conversation with a striker;:may have made some remark.in regard to jobs being available at the plant. These remarks or statements spoken in casual conversation, usually in response to the striker's inquiry, are to be expected in strike situations of this character and, if not protected by Section 8 (c) of the Act,' are plainly of an insubstantial or inconsequential nature. The evidence obviously fails to reveal any plan or pattern on the part of the Company to indulge in any cam- paign designed to induce the strikers, to abandon the strike. Absent also is the usual indicia which the Board has heretofore held sufficient to warrant a finding .that solicitation of individual strikers is not protected by Section 8 (c), hence in violation of Section 8 (a) (1) of the Act. Thus, the Board held that repeated solicitation of individual strikers was prohibited where they "were part of a pattern of illegal opposition to the purposes of the Act" as This section provides that : The expressing of any views , argument, or opinions, or the dissemination thereof, whether In :written, printed, graphic, or visual form, shall not constitute or ►e evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit. CELANESE CORP.ORATION -OF AMERICA 719 (Rawleigh Company, 90 NLRB 1924) ; where the employer "in the midst of the solicitations," which were successful, withdrew its contract offer (Cathey Lumber Company, 86 NLRB 157, 164-165) ; where. repeated offers of reinstate- • ment with full seniority rights were made to the strikers "provided that they abandoned the Union and their leaders" (E. A. Laboratories, Inc., 86 NLRB 711,' 712) ; and where the employer made "repeated, oral personal appeals to individuals to take action in derogation of their designated representative" (Sam'l Bingham's Son Mfg. Co., 80 NLRB 1612, 1613). The so-called solici- tation of individuals by a few foremen or subforemeu does not, in the belief of the undersigned, fall within the purview of the foregoing decisions. Rather it seems that the instant remarks or st:uc..ients and the circumstances under which they were made are governed by the principles set forth in the Penokee Veneer. case, supra. Furthfir, assuming thnt there is-anyoncrit to the•Gontention that the statements themselves were object.onable, still this would be-insufficient to justify the entry of a cease-and-desist order in view of the isolated character of this conduct. (Cf. Kallaher & Mee, Inc., 87 NLRB 410; Rutter-Rex Manu- facturing Company,, 86 NLRB 470, 4717472; Peerless Woolen Mills, 86 NLRP 82, 84. ) The undersigned therefore finds upon the entire record that the Company did not individually solicit its striking employees to return to work in violation of the Act. d. The discharge and interrogation of three employees The complaint alleges that the Company unlawfully discharged three of its employees about August 12 and. 13, and interrogated these employees concern- ing their union affiliation. (1) The discharge of Marjorie H. Kenyon and Pauline A. Stephens Kenyon was employed by the Company from July 1945 to August 12, 1948, as a PBX and teletype operator ; she was a salaried employee and not included in the bargaining unit. Kenyon stated that on August 12, James Brennan, plant, ac- countant, called her to his office and said "he had a very difficult job to do." Brennan then told Kenyon "that he was going to have to let me go, that Mr. Gendorf [GindorfI had made a survey and that all women whose husbands were connected with the Union,, they were going to have to let go." Kenyon told Brennan that her husband worked for the Humble Oil Company and was a mem- her and representative of the employees' federation, an4independent labor organ- ization of Humble employees, but, Brennan replied, "he didn't know that, that was just his orders and he was carrying out his orders." Brennan, according to Kenyon, said he had no complaints about her work, which "had been perfect." Kenyon then turned in her badge and received her. check. At that time Brennan told Kenyon lie would have the records show that she resigned rather than that she was discharged, but'the following morning Kenyon telephoned Brennan and requested him to have the records indicate that she was discharged, which Brennan agreed to do. Kenyon admitted that she was not a member of the Union, did not engage in any activities on its behalf, and worked regularly at the plant from the time the picket line was established, July 26, until the. date of her discharge. Stephens was employed as a PBX operator from September 1945 to August 13, 1948: On the latter date, Stephens said that Brennan called her to his office and 34'Pauline A. Stephens is named in the complaint as :Pauline (Mrs. E. T.) Stevens. ' The complaint is considered as amended , under the General Counsel's motion to conform, to show the correct name, Pauline A. Stephens. 720 DECISIONS OF NATIONAL 'LABOR RELATIONS BOARD stated that "he was 'sorry but he was. instructed' to discharge me." Stephens then asked- why she was being discharged and ,who was responsible .for -this action. Brennan replied that-Gindorf ordered her-discharge "for three reasons, first because your husband is a union member and you are a union sympathizer, and Company secrets might leak out." -Brennan related that Stephens' work had been satisfactory but that after a "survey" had-been made at the ;plant, ,Brennan "was instructed to discharge all employees that had relatives connected with the Union." Stephens' husband was employed ^by the Chicago Corporation of ;Corpus Christi, at its. plant in the vicinity of Bishop, andwwasa member of the Union, ,but. not Local 553. Stephens was-not a member of the Union,-nor did she;ever'engage in any activities on its behalf. Stephens said she was sympathetic to the strikers but she never expressed her" feelings in this respect to any supervisory employees of the Company nor did she give any aid to the strikers. Admittedly, she worked regularly during the time the Union maintained a,picket line at the plant. The Company denied that it discharged Kenyon or Stephens by reason of their own, or their husbands', union membership or activities on behalf.of any union, but because each was suspected of monitoring telephone calls in violation of company instructions. Kenyon and Stephens admitted that operators were pro- hibited from listening in on telephone conversations at the plant. Brennan.testi- Red that about mid-June, Bowen and Leach complained that someone was listen- ing in on their conversations, particularly long distance calls, and told Brennan to investigate the matter and have it stopped. At that time the Company had four operators, Kenyon, Stephens, Knipp, and Steele. Before Brennan had done anything concerning these complaints, Kenyon, he said, came to his office and said that the supervisors were trying to "outsmart" her by placing toll calls through the switchboard as "official" when she knew that these calls were of a personal nature. Brennan asked Kenyon how she knew this, and she said she had listened in on the conversations . Brennan then told Kenyon not to monitor calls and if the individ$al placing the same said it was official she was to take, his word for it and, record it on her toll slip. Brennan asked Stephens and Knipp if they had monitored calls for any reason, and each denied that they had ever done so. Steele was not questioned since she regularly worked mid- night'to 8 in the morning and Brennan believed she was not in a position to monitor calls of any consequence. A few days later. Brennan again' asked Stephens if she listened in on calls and she denied engaging in this practice., However, Stephens became "frustrated and quite embarrassed" and. Brennan doubted that she was telling the truth. Brennan subsequently discussed sub- jects over the telephone while Stephens was on the board and later she told Bren- nan the subjects discussed, which led Brennan to believe she was listening in on his conversations. Brennan specifically related that about the third week of July, he called Leach and discussed the wage increases to be given the operators and about 30 minutes later, Stephens thanked Brennan for the $15 increase to be granted operators. Brennan said this was the amount discussed with Leach and the only way she could have secured this information was through listening. in on their conversation. During the period July 23-25, Brennan temporarily relieved Kenyon and Stephens from duty and replaced them with E. J. Phillips, an employee in the personnel office, so there would be no "risk" of having calls monitored at this stage of the bargaining negotiations. About 1 week after the strike commenced Bowen complained, that the operator was "cutting in and out of his line" more than necessary, especially on his calls to,Fennesbresque in New York and his calls to Houston. Brennan then checked back on -these calls and found out that either Kenyon or Stephens was on the switchboard when the calls were made. On August 12, Brennan called Kenyon to CELANESE CORPORATION OF AMERICA 7.21 -his office and informed 'her:that .confidential telephone conversations were being; monitored at the switchboard 'and the information was being repeated to unau- thorized individuals. 'Brennai further- told. Kenyon.-he -believed that -"she;was guilty to-some extent of this misconduct" and he was'terminating'her services in the interest of "company, security." Kenyon•denied'that she had ever monitored telephone conversations and she was, being discharged because her husband was:a member of the: Union. Brennantadvised her that her husband's union. affiliations had nothing to do with her discharge. On August 13, Brennan called -Stephens to, his office and had -substantially ^ the same conversation with her as he had had with Kenyon. Stephens upon being informed of her discharge became "bel- ligerent"-'and declared that'Gindorf was responsible -for her discharge because.of his personal feelings against Stephens and her husband. Brennan told Stephens that Gindorf had nothing to do with her discharge. Prior to effectuating 'the discharge of Kenyon'and Stephens, Brennan discussed the matter with Giiidorf who concurred in the discharges. Brennan denied the statements attributed to, him by Kenyon and Stephens and further stated that he did not -know either of'their'husbands, not did lie have any knowledge concerning their union affilia- tions until Kenyon and'Stephens -testified in this respect. (2) The discharge of Ruth Rote Urmy Urmy was employed by the Company from January 1947 until August 13, 1948, as a clerk in the accounting department, and her husband was_ an employee in the production department. Both were members of the Union but apparently neither was active in its affairs.. At the time the strike was, declared Urmy and her husband were on vacation and did not return to their home in the area of Bishop until about August 9. About this date Urmy returned to work at-the plant and her husband performed duty on the picket line. On August 13, Urmy testified that Brennan, supervisor of the department, called her to the office and stated that the Company was "checking all the employees in the plant who had husbands or fathers or relatives that had any union affiliation, and that in my case, '11Ir. Gindorf and 11r. Gilbreath .. . thought it was for my, best good and the Company's best good that I be terminated and separated from the organization . . . because I was in sympathy with the strikers and prounion." Urmy said while this was true, it did not affect her work. Brennan answered that her work was satisfactory but the Company "just .didn't want me to in- fluence any of the other employees." Later the same day, Brennan told Urmy she could resign instead of being discharged, so Urmy submitted her resigna- tion. Urmy declared that after August 9 she entered into discussions among the office employees regarding the positions adopted by the Union. and the Com- pany .in which she took the Union's part, but she did not discuss her own union affiliation. Urmy also stated that about the time negotiations commenced, K. R. Hosey, supervisor of the payroll department, told Urmy, in. the presence of employee Irene M. Cahill, that the Company never liked the CIO and "would try to get them out during this negotiation" by refusing to "negotiate a satisfac- tory settlement as long as there was a CIO representative on the bargaining committee." Urmy then told Hosey that Nason had negotiated "a very weak contract" in 1947, and he agreed, stating that this put the Company in a posi- tion "this year to try to. force the Union out." Finally, Urmy testified that she kept all the records. on maintenance and construction work. performed at the plant, and up to the time that she. went on vacation, "Brown & Root had never done any maintenance work in the plant." The'^Company :asserts that it discharged Urmy because of her unsatisfactory conduct during working hours at the plant. Brennan related that in the early part of June, Harold Florence, Urmy's immediate supervisor, told him that 722 DECISIONS' OF NATIONAL LABOR RELATIONS BOARD Urmy was engaging in unnecessary talking which caused- her, as well as others, to neglect office work. Brennan told Florence to inform Urmy that her con- duct was unsatisfactory and also suggested that her desk be moved close to Florence so that she would not indulge in unnecessary conversation. About August 13, Florence reported to Brennan that since Urmy had returned from her vacation, August 9, her conduct was worse than before ; that she had been "highly excited and emotional" and engaged in lengthy conversations with em- ployees which resulted in her, own work being neglected and caused other .employees similarly to neglect their work. Brennan instructed Florence to again talk to Urmy and tell her that her conduct must improve. On the morning of August 13, Hosey reported to Brennan that Urmy had disrupted work in his office by indulging in -a heated discussion with himself and others concerning the strike situation. Hosey stated that he attempted to stop the discussion but that Urmy persisted in continuing the discussion. Morris Webb, cost analyst, also unsuccessfully attempted to end the conversation. , Brennan informed Leach of Urmy's conduct and he agreed that Brennan should talk to her and unless Urmy promised to improve her conduct, she should be discharged. The same afternoon Brennan called Urmy to his office and outlined the complaints lie had received from Florence and Hosey . Brennan then told Urmy that the Company was not concerned about her feelings regarding the strike but that he could not permit her to -neglect her work or interfere with the work of others. Urmy replied that she "felt quite strongly" about the strike and could not help expressing her views to anyone who disagreed with her. Brennan de- clared that if she could not refrain from these discussions and neglecting her work it might be necessary for her to resign. Urmy stated she was sorry for what happened and under the circumstances she would resign. She then typed out her resignation and gave it to Brennan. Brennan denied Urmy's testi- mony relating to this conversation. Brennan said he did not know whether Urmy was a member of the Union, although he knew her husband was a mem- ber since he was on the union checkoff list which came under his jurisdiction as plant accountant. Florence u stated that about June, Urmy was indulging in excessive talking, which he reported to Brennan , and then rearranged the desks in the office so that Urmy was placed near him. Florence also related that about 1 week prior to the strike he criticized a particular job performed by Urmy and that she became very angry and finally fainted. Upon her return to the plant on August 9, Florence said Urmy was still "upset," and several days before her discharge she joined in a conversation among Florence and other employees concerning an incident which occurred that morning on the picket line. In the course of this conversation Urmy called the Texas Rangers "strike breakers" and accused the Company of bringing them to the plant. Florence warned Urmy against the creation of such scenes and told her to return to work. Florence reported this incident to Brennan and later warned Urmy against such disturbances in the future. On the morning of August 13, Hosey stated that Urmy came to the payroll department to use one of the calculating machines. When Urmy arrived Hosey, Eloise Williams, and Verda Lee, em- ployees in the payroll department, were discussing "activities" on the picket line that morning. Urmy. joined the group and said the Company was taking ad- vantage of the employees, obviously referring'. to the office force, by asking them to come through the picket line. Hosey told Urmy that they were not concerned with the strike issues and regardless of the strike there was work to be done in the office. Hosey said he told Urmy the discussion was closed 85 Florence resigned from the Company and was employed as tax assessor and collector for the Kingsville School District at the time of the hearing. CELANESE CORPORATION OF AMERICA 723 but she continued to present her "argument. " About 20 minutes later Hosey went to Florence and, after advising him of Urmy 's conduct, suggested that when Urmy required the use of a calculator he would send the machine to her desk instead of Urmy coming into his department . Florence replied that he had talked with Urmy about her arguments or discussions in the office, but to no avail. Hosey then reported the incident to Brennan who said he would take care of the matter. Upon returning to the payroll department Hosey found Urmy still talking to Williams and Lee and again he told her to stop the discus- sion, which she did. According to Hosey the entire incident lasted about 45 minutes. Williams, a payroll clerk, testified that she was present during the conversa- tion but did not participate in the discussion . Williams could not state the details of the conversation other than it concerned the negotiations and the strike. Obviously the conversation was between Urmy and Hosey with Urmy "arguing for the union" and Hosey "arguing back against her." Williams re- lated that several times Hosey attempted to end the discussion by telling Urmy "that's enough" but she continued to argue. Finally, Webb came in and com- plained that the conversation was disturbing his office and shortly thereafter Hosey left the room . Like Hosey, Williams stated the conversation lasted about 45 minutes. The testimony of Lee in regard to this incident is substantially the same as that of Williams . Cahill, a clerk, denied that she was present at any conversation which Urmy may have had with Hosey during June, while the negotiations were in progress. Urmy, testifying in rebuttal, denied that she was emotional or subject to spells of anger while She was working under the supervision of Florence. She further denied that there had been any criticism of her work, except on one occasion, and that on July 1 she received an increase in salary of $25 per month. Urmy stated'tliat during Maykshe was working on a payroll project and Florence com- plained that the work had not been performed in accordance with his instruc- tions, which Urmy declared was not true , that she had followed instructions. In any event Urmy again did the project as requested and gave it to Florence. Shortly thereafter Urmy fainted and was taken to the clinic where she remained about 1 hour and then returned to work. Urmy stated that about August 10 or 11, she and other employees , including Florence, were watching a convoy of trucks carrying employees entering the plant , and Urmy said she hoped there would be no trouble because of their coming into the plant . Florence said that there would be no trouble as 'long as "the law and the Texas Rangers" were present, and Urmy replied , "Law-Texas rangers-don't use the two in the same'breath-those damn strikebreakers." Urmy said Florence made no answer but left the room , and she heard nothing further from him concerning this inci- dent. Urmy stated the only "reference" Florence ever made about the Union occurred after she returned to the plant on August 9, when he asked Urmy what her husband was going to do about the strike and Urmy stated, "I don't know." Concerning the Hosey incident of August 13, Urmy said she went to the payroll department to use the calculator and while she was working Hosey came in and started talking about the strike. Hosey declared that Hajecate was keeping the strikers out, although they wanted to return to work, that the men did not know when they were well off and were "fools to belong to the CIO." Urmy then went over to Hosey and said the strikers would return if the Company would give them. sick pay and funeral benefits. Hosey said this would cost the Company "millions" to grant these concessions at all its plants , to which Urmy replied, "I haven't heard them say they couldn't afford it." Webb then entered the dis- cussion and agreed with Hosey . Continuing, Hosey stated that the Company was operating only for its stockholders , and Urmy said, "We might as well stop the 961974-52-vol. 95---47 _ 724 DECISIONS, 1OF NATIONAL : LABOR RELATIONS BOARD C discussion because.. we have a different view.',' Hosey,, asked Urmy. to explain her remark.and she answered that the Company "should be a benefit to the com- munity ; . , because they give it the privilege of existing." This concluded the conversation and Urmy thereupon left the office. Urmy denied that Hosey or Webb attempted to close the conversation and. further asserted that during the course of the discussion Hosey, was "raving and ranting" and talked in a very loud voice. Brennan made no mention of this incident when he talked to Urmy, later the same day.. The undersigned is neither impressed nor persuaded by the testimony of Ken- yon, Stephens, or Urmy. In substance Kenyon and Stephens recite almost iden- tical conversations with Brennan wherein he advised them that they were being discharged because the Company had decided to eliminate all women whose hus- bands were affiliated, with the Union or had any union affiliations. Urmy testi- fied •her discharge, or forced resignation, occurred in substantially the same manner and with the added ground that she was prounion and sympathetic to the strikers. Concededly, neither Kenyon nor Stephens was a member of the Union nor did they engage in any activities whatsoever in its behalf. Kenyon's husband was employed by Humble Oil Company and a member of the employees' 'federation'," an independent union, and Stephens' husband was employed by the Chicago Corporation and a member of another local of the Union. There is nothing in the record to indicate that either. of these individuals took any part in the strike. involving the Company. While Urmy stated that she was a mem her of the Union, 7 there is no showing that the Company had any knowledge of her membership. Admittedly, her husband was employed by the Company, was a member of the Union, and performed picket duty during the strike. Consid- ering this testimony only in the light of the Company's conduct throughout the entire period of the Union's organization and existence at the plant, the under- signed finds it difficult to accept this evidence. In this case the record fails to disclose any hostility or opposition to the Union from the inception of organiza- tional activities in 1945 up to the date of the discharge of these three employees. On the contrary it is fully established that the Company granted quick recogni- tion to the Union upon its being properly certified as the bargaining agent for designated employees, followed by the execution of two successive collective bargaining agreements and as a consequence harmonious relations existed be- tween the Company and the Union for at least several years. It seems incongru- ous, under these circumstances, that the Company, through Brennan and Leach., high supervisory officials, would suddenly and completely reverse its prior course of action and select three employees who were not even. included in the bargain- lug unit and openly and unqualifiedly inform them that in line with the Com- pany's policy, they were being discharged because their husbands were members of the Union or affiliated with some union. The testimony of Kenyon, Stephens, and Urmy bearing upon Brennan's conduct is patterned .along lines somewhat similar to the testimony of Woods, Penner, and Knickrehm in respect to Wilson's alleged statements that four employees, all union advocates, would never again work for the Company. Unquestionably, if this evidence is to be accepted the Company has engaged in serious violations of the Act. But the assertions 86 The Board, upon charges filed by the Oil Workers International Union, found the Federation to have been formed in violation of Section 8 (2) of the Act and entered its usual order requiring the Company to cease dominating or interfering with the Federa- tion, cease giving effect to contracts with it,. and' to withdraw recognition. ( 16 NLRB 112, 147.) On appeal from the order the Circuit Court set aside the above provisions ,of the order. (Humble Oil & Refining Company v. N. L. R. B., 113 F. 2d 85, 93 (C. A. 5).j 31 At first Urmy said she believed she was a member and then stated she was a member of the Union. • CELANESE -CORPORATION OF AMERICA ' 725 attributed to Brennan and Wilson standing alone as they do, in a background .devoid of any animus toward. union organization, become enigmatic,, and the undersigned is not, so naive as to.be persuaded by evidence of this character. However, apart from the.foregoing apprisal of the evidence the undersigned. is .convinced that Kenyon, Stephens, and Urmy were not discriminatorily dis- charged as alleged in the complaint. ' '. •i The discharge of Kenyon and Stephens is bottomed exclusively upon the state- ments of Brennan made. to each of these individuals at the -time, of their respective discharges. Brennan denied making any such statements and,testified that he informed Kenyon and Stephens that they were being discharged in the interest of security because the Company believed they were monitoring telephone calls and confidential information: was being repeated to members of. the Union, that they were discharged. The Company, in answer to the contentions of Kenyon and Stephens that they were discharged because their husbands were-union members, adduced evidence showing that 22 salaried employees -continued to work for the Company during and after the strike despite the fact that each was related to a striking employee.. Included among these salaried employees ,was Thelma Woods, wife of John- H. Woods, a witness for the General Counsel, and an active member of the Union. Moreover, Brennan's secretary, Frances A. Wuensche (Frances W. Parker) was the daughter of H. E. Wuensche:' a striking employee, yet she continued to work during the strike and thereafter ,until March 1950, when she resigned. Upon all the evidence and his- observation of the witnesses, the undersigned rejects the testimony of Kenyon and Stephens and credits the testimony of Brennan in respect to the reasons for-discharging $eny,,n and Stephens. Whether. Kenyon or Stephens were actually guilty of monitoring conversations is beside the point, for even assuming they may have been blameless, as long as their discharge was not motivated by considerations .of union membership or activity it was not unlawful. ' (American National In- 8urance Company, 89 NLRB 185.) The undersigned therefore finds that the Company discharged Kenyon and Stephens for reasons other than their union affiliation or activity and accordingly the Company did not- thereby: engage in any unfair labor practice as alleged in the complaint.. - Urmy testified that Brennan not only stated that she was being discharged ,because of her husband's union affiliation but also because "she was in sympathy with the strikers and prounion." For the reasons set forth above, the under- signed rejects the testimony. of Urmy relating to her discharge because of her husband's union membership. and credits the testimony of Brennan in this .respect. In support of. her contention that she was discharged because she was ,sympathetic to the strikers -and prounion, Urmy related two occasions: when she engaged in discussion with Florence and Hosey concerning the-strike. The Florence incident tookplace at the plant about August 10, and on this occasion Urmy told Florence the Texas Rangers, by escorting employees into the plant, were acting as strikebreakers. She admits Florence made no reply but left the office and she heard nothing further regarding this incident. On August 13, ,Urmy related that she engaged in a discussion with Hosey, and later Webb, in which the strike issues were discussed with Urmy arguing on behalf of the .Union's position. She stated she attempted to halt-the discussion but Hosey (and perhaps Webb) insisted upon continuation of the argument and it was Urmy who terminated the same by leaving the office. Urmy characterized as Wuensche was a machinist and went on strike July 26. Like the other strikers, he applied for reinstatement about September 17. The following day he resigned from the Bishop plant to accept employment at the Com•pany's research laboratory at Clarkwood, Texas. 726 DECISIONS OF NATIONAL^-LABOR * RELATIONS BOARD Hosey's demeanor as "ranting and raving" 'and declared that the strikers were "fools to belong to the CIO." The Company contends that it was Urmy who commenced the discussions with Hosey and refused.to stop although told to do so by Hosey and Webb. The Company further contends that the Florence and Hosey incidents were the culmination of events which led the Company to believe that Urmy was neglecting her own work as well as causing other em- ployees to do the same, for which she had been warned, that she was emotional and no longer considered a desirable employee. The testimony of Hosey and Urmy concerning their discussion is conflicting with each accusing the other of starting the discussion, talking loudly, and refusing to end the same. Upon all the evidence regarding this incident, the undersigned is convinced that on August 13, Hosey, Williams, and Lee were discussing "activities" occurring on the picket line and that Urmy joined the group and engaged in the discussion. The undersigned is further convinced that the so-called discussion developed into an argument between Urmy and Hosey concerning the strike issues with Urmy, as stated by Williams, "arguing for the union" and Hosey "arguing back against her." Hosey, by thus engaging in such an argument with Urmy, clearly acted unwisely and his conduct in this respect, even though it may have been contrary to company policy and instructions, is certainly not to be condoned. However. it seems equally clear, as related by Williams and Lee, that Hosey, as well as Webb, did attempt to stop the argument, but that Urmy persisted in .continuing the same and that Hosey finally left the room. Under all the circum- :stances the undersigned is not persuaded that Urmy was discharged simply ;because she expressed her union sympathies in the foregoing argument. Rather it seems that her refusal to cease arguing considered in the light of past warn- ings regarding her conduct, and the undersigned finds that she was warned, was the determining factor in Brennan's decision to terminate her employment. While Urmy may not have neglected her work, or caused coworkers to neglect their work, to the extent claimed by the Company, nevertheless, an "employer has the undoubted right to prevent interference with the work of his employees and to prohibit all union or other concerted activity on Company time." (Citizen- News Company, Inc., 88 NLRB 1413, see also, Peyton Packing Company, 49 NLRB 828; 843, enforced 142 F. 2d 1009 (C. A. 5) ; McKinney Lumber Company, 82 NLRB 38, 43.) Again, if the Company believed Urmy to be emotional and subject to spells of anger, and there is evidence in the record to substantiate this belief, the Company obviously had the right to discharge her for that reason. (E. A. Laboratories, Inc., 87 NLRB 233, where the Board recognized the employer's right to discharge an employee, among other reasons, for "emotional insta- mility:") Be that as it may, the undersigned is convinced and finds, that the Company.in discharging Urmy was not prompted by antiunion considerations, nor for the purpose of interfering with the rights of its employees, or Urmy, ,to engage in concerted activities for the purposes of collective bargaining as guaranteed under the Act.' The undersigned rejects the testimony of Urmy to the effect that Hosey stated the Company would not negotiate a satisfactory agreement as long as the CIO had a representative on the committee and would attempt to force. the Union out of the plant, and credits the testimony of Hosey and Cahill concerning this .incident. The undersigned finds that Hosey did not make the foregoing remarks. The undersigned also. rejects the testimony of Urmy to the effect that Brown & Root performed no maintenance work at the plant prior to the time of her going on vacation, about July 23, for the reason that it is contrary to the facts. estab- lished clearly in the record: The complaint alleges that the Company, particularly through Brennan, in- terrogated its employees concerning their union affiliations, and threatened and it CELANESE CORPORATION OF AMERICA - 727 warned its employees to refrain from assisting the Union or becoming or re- maining members 'thereof. The only evidence adduced by the General Counsel in support of this allegation is the testimony of Kenyon, Stephens, 'and Urmy. In the opinion of the undersigned, this testimony fails wholly to substantiate the charge of interrogation. Thus, Urmy, when asked by the General Counsel whether Florence had ever talked to her about the Union, replied, that "the only reference we had about the Union was when I came back . . . from my vacation. And he asked if my husband was going out on the picket line .... I said I don't know." The undersigned therefore finds that the Company did not interrogate its employees as alleged in the complaint. e. The refusal to reinstate the striking employees Upon the withdrawal of the picket line on September 16, under the circum- stances related above (p. 701), many of the strikers went to the plant "to register"_ for work. The Company was not informed of this action. About noon the same day Leach was advised by one of his supervisors that there were no pickets at the plant and Leach himself saw no pickets when the shifts changed (3: 30 p. m.} nor,.when he left the plant in the evening. That night Leach received several .telephone calls from individuals in respect to their jobs. The next day, Leach saw it large crowd at the plant and was later advised by one of his patrolmen that the strikers desired to come to the personnel office. Since the personnel 'office was inadequate to accommodate such a large number of persons, Leach de- cided to use a tent just outside the office. He then assigned 3 girls and 1 man to interview the strikers. These employees were instructed to secure the name of each striker, his job classification and the time of his application. In order to obtain this information the Company used its regular "register" form,89 with necessary. changes, which form was signed and completed by the individual striker. In-addition the girls secured the name, address, and telephone number'of each individual signing the register. Leach further instructed these employees, not to make any statements concerning the situation onto answer any questions by the applicants other than, "if we needed them we would call them." The registration forms were received In evidence and show that between September 17 and 30, approximately 379 strikers 90 applied for jobs. The undersigned entertains serious doubt as to whether individual. applica- tions for reinstatement by striking employees made, as here, upon instructions from union officials who admittedly withdrew the pickets only for that purpose, publicly stated that this was only a tactical maneuver, and that the strike was still current, can be considered as unconditional requests for reinstatement on the part of the strikers. However, for the reasons stated below, it is unnecessary to resolve that question and the undersigned will assume that each of the strikers, who. "registered" at the plant between September 17 and 30, did make a bona fide application for reinstatement with the Company. Having found that the strike was economic in its origin and was neither prolonged nor converted into an unfair labor practice strike by any conduct on the part of.the Company, ft This was simply a mimeographed page with a number of lines for giving information under headings, name, reason, or job applied for, veteran , action taken. The form was used before and during the strike , as well as subsequent thereto . The purpose of the form was to secure brief information on persons coming into the plant on business matters or as job applicants. 40 Some of these forms .are dated September 15 and 16 , but since the witnesses uniformly testified that they applied after the picket line was drawn , it seems plain that these forms are erroneously dated and refer to September 17. On the latter date, 181 strikers signed the register ; 63 on September 18; 63 on September 20; 24 on September 21; and 48 between September 22 and September 30, inclusive. 728 DECISIONS OF NATIONAL'LABOR RELATIONS BOARD the latter' had the right to replace permanently the striking employees with new workers at any' time prior to. their unconditional application for reinstatement. (N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333, 345; Globe Wireless Company, 88 NLRB 1262.) And once the Company thus replaced its striking employees it was clearly under no obligation to discharge the replacements in order to create jobs for the strikers when they elected to return to work. F ur- ther, there is no evidence that the Company discharged or attempted to discharge any of the strikers. Accordingly, two questions are presented: (1) Did the Company hire permanent replacements to fill the positions left vacant by the striking employees ; and ' (2) did the Company have any vacancies at the time the strikers made application for reinstatement and refuse to reinstate the strikers in those vacancies. The first question must be answered in the affirma- tive and the second must be answered in the negative. On August 12, the Company offered to reinstate its production, laboratory, and utilities employees as of August 16, under specified wages and other condi- tions of employment. Between August 17 and 20, the Company placed advertisements in the Corpus Christi Caller .offering reinstatement to its maintenance employees under.,the same terms as proposed in the above-mentioned notices of August 12. Between August 18 and 20, the,Company placed daily ads in the same paper stating that as of August 18, new employees were hired to-,.-replace striking employees who had resigned from the Company. The ads further stated that, after August 20, new employees would be hired to replace striking employees who failed to report for work and thereafter the strikers would be placed in vacancies as long as they existed. On August 25 and 26, the. Company advertised in the above newspaper that it was accepting applications for experienced chemical plant operators, instru -ment men, boiler house operators, and control laboratory employes. In addition to the foregoing the Company opened temporary employment offices at Waco, San Antonio, and Houston for the purpose of securing personnel. It seems clear that when the Company decided to resume operation on August 16, it preferred to man its plant with striking employees and therefore afforded them an opportunity to return to work. When the strikers failed to respond to the Company's offer, it then publicly stated that it would replace them after August 20, and thereafter the strikers would be considered for vacancies only as they might exist. The Company then proceeded to fill the positions of the strikers through advertisements and the opening of employment offices. The advertisements plainly indicate the Company was accepting applications for, permanent positions, at least to the extent that it is feasible to,state that any day-to-day factory employment is permanent. (See N. L. R. B. v. Waterman Steamship Corp., 309 U. S. 206, 219.) Certainly there is nothing in the ads to warrant the inference that the positions were of a temporary nature or merely for the duration of the strike. The same conclusions apply to the procedure followed at the employment offices. That the new employees were. hired on a permanent basis is fully substantiated by the testimony of Leach, who on cross-examination by the General Counsel, was asked : Isn't it a fact that . . . these applicants were promised in all events that. they would be continued in employment. with the Company after the strike was settled? . to which Leach replied:, Well these ,applicants, were told that such positions as they would fill, would be permanent, yes sir. . . , r -I CELANESE CORPORATION' OF AMERICA 729 Further; ofi' September 30,. the Company had 'a full, complement of personnel and, between that date-and the date, of the hearing , April 11,'1950, there is"a complete absence of any evidence indicating any unusual turnover in personnel through discharge , layoff, or resignations which demonstrates that the indi- viduals employed prior to September 16 were hired as permanent employees. Upon all the evidence the undersigned is convinced and finds that the 108 new employees hired between August 20 and September 16 were hired as per- manent replacements to fill the positions left vacant by the strikers. The remaining question to be determined is whether the Company had any positions available for which the strikers were qualified , at the time they applied for reinstatement. It is undisputed that on September "30 the " plant was in full operation and staffed with 310 employees ; 202 striking employees and -108 new employees in the departments involved in the strike . It is also undisputed that on September 17 the Company had 48 vacancies, which it filled between. that date and September 30, with 42 strikers who applied for reinstatement and 6 new employees who had been interviewed and promised employment prior thereto. In July 1949, upon the termination of the Brown & Root contract, the Company increased its maintenance force from 71 to about 146 employees .' This was accomplished by employing 28 employees of Brown & Root, all former striking employees, by transferring 43 employees from the production to the maintenance department, and,by hiring 4 new employees. In summary the Company has rein- stated 245 striking employees and as of the date of the hearing it had 321 hourly paid employees at the plant. Upon all the evidence the undersigned finds that on September 17, the Company had but 42 available positions which it filled through the reinstatement of an equal number of striking . employees. Since the Company had no jobs for the remaining strikers who applied for reinstatement • it was under no duty to reinstate them , and "no ' inference of discrimination can be , drawn from the failure to employ strikers when there -was no vacancy at the time they ap- plied . .• There had to be an application at the time of a vacancy before there could possibly be discrimination ." ( Sax v. N. L. R. B., 171 F. 2d 769, 771 (C. A. 7) ; The Cincinnati Steel Castings Company, ,86 NLRB 592, 595.) The under- signed so finds. .As appears above, counsel for the Company, at the conclusion of the hearing, moved to dismiss the complaint on the ground that the officials of the ,CIO, parent organization of the Union , were not in compliance with the provisions of Section 9 (h) of the Act, at the time of the issuance of the complaint , therefore the Board was without authority to issue the same, citing N. L. R. B. v. Poster Cotton Mills, 181 F. 2d 919 ( C. A-. 5). The undersigned reserved ruling on this motion. In view of the findings and conclusions of the undersigned it seems unnecessary to rule upon this motion . However, in order to preserve the record, the undersigned , for the reasons stated in the decision of the Board in Betlcle- hem Steel Company, 89 NLRB 1476, hereby denies the said motion. ;Upon the foregoing findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW I.- ,.T . he operations of the Respondent , Celanese Corporation of"America, at its plant located in Bishop, Texas, occur in commerce,, within the meaning of Section 2 (6) and ( 7) of the Act. 2. Oil Workers International Union, CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 730 DECISIONS OF NATIONAL LABOR RELATIONS-BOARD 3. The Respondent , Celanese Corporation of America , has not engaged in unfair labor practices as alleged in the complaint , within the meaning of Sec- tion 8 (a) (1), (3), and (5) of the Act. Recommendations .- Upon the basis of the foregoing findings of fact and conclusions of law, the' undersigned recommends that the complaint be dismissed in its entirety. INTERNATIONAL HARVESTER COMPANY, FOUNDRY DIVISION (Louis- VILLE WORKS) and .FALLS CITIES CARPENTERS DISTRICT COUNCIL, THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, A. F. L., PETITIONER " INTERNATIONAL HARVESTER COMPANY and UNITED ELECTRICAL, RADIO a MACHINE WORKERS OF AMERICA (UE), PETITIONER. Cases NOS. 9-RC-1082 and 9-RC-1106. July 27,1951 Decision and Direction of Elections- Upon petitions duly filed, a consolidated .hearing was held before William A. McGowan, hearing officer. The hearing officer's rulings made at the hearing are- free . from prejudicial error and -are hereby affirmed. "Upon. the entire record in this case, the- Board finds : ' 1., The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The labor organizations involved 1, claim to represent certain. employees of the Employer. 3. The Employer and the UAW contend that a contract at present in effect 'between them is a bar. to this proceeding. The Carpenters. and the UE assert that such contract contains an unlawful union- security clause and therefore cannot constitute a bar. On January 5, 1950, the UAW was certified in a production and maintenance unit at the Employer's plant. In February 1950, the Employer and the UAW signed a contract which terminated on Au- gust 23, 1950. On July 10, 1950, after an election conducted pursuant to Section 9 (e) (1) of the Act, the Board certified that-the UAW was authorized to make an agreement with- the Employer- requiring membership in such organization as a condition of employment, in conformity with Section 8 (a) (3) of -the Act. On November 6, 1950, 3 Petitioner in Case No. 9-RC-1082 will be referred to herein as the Carpenters. Peti- tioner in Case No. 9-RC-1106 will be called the UE. The- International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, CIO, Intervenor in both cases, will be referred to as the UAW. 95 NLRB No. 80. -