Vogue-Wright Studios, Inc.

In the Matter Of VOGUE-WRIGHT STUDIOS, INC. and UNITED COMMER- CIAL ARTISTS AND'PHOTOGRAPHERS Case No. 13-C-2731.-Decided March 18, 1948 Mr. Robert Ackerberg, for the Board. Pope and Ballard, by Messrs. Merrill Shepard and Isaac M. Mills, of Chicago, Ill., for the respondent. Mr. E. -97. Adams, of Chicago, Ill., for the Union. DECISION AND ORDER On December 12, 1946, Trial Examiner Mortimer Riemer issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial . Examiner also found that the respondent had not engaged in and was not engaging in certain other labor practices as alleged in the complaint. There- after, the respondent and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs. The respondent also filed a motion to reopen the record for the purpose of receiving addi- tional evidence. On October 14, 1947, upon the request of the respondent and pursuant to notice, a hearing was held before the Board in Washington, D. C., for the purpose of oral argument. The respondent was represented by counsel and participated in the argu- ment. The Union and the counsel for the Board did not appear. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the respondent's motion to reopen the record and the entire record in the case, and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner with the modifications and additions noted below. 76 N. L. R. B., No. 111. 773 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. The Trial Examiner found that the strike of September 4, 1945, was caused by anti-union statements of respondent's Vice-President Schuth to employee Kersten and the respondent's refusal to neutralize such statements, and that the strike accordingly was an unfair labor practice strike.' We disagree. We are not convinced that the anti- union statements attributed to Vice-President Schuth were In fact made. Underthe circumstances of this case the Kersten version of the Schuth conversation seems inherently improbable. Kersten testified that Schuth urged him not to join the Union but to wait for a few days until the outcome of the contract negotiations with the Union, and further said that the studio "will never be a union shop." How- ever, on August 29, when these statements were allegedly made, the Union and the respondent had already reached a complete understand- ing with respect to the terms of the new contract, which included a union-shop provision. The final consummation of the contract awaited only the outcome of the (Union's efforts to secure the member- ship of four non-union employees in the mechanical department. Schuth's alleged conduct in urging Kerste?i not to join the Union for- a few days would have been at variance with the respondent's policy not to oppose the Union's efforts to unionize its studios. Only a day or two before the alleged conversation, President Dungan, at the request of the Union and to assure the final consummation of the contract, called four non-union employees to his office to permit union representatives to invite them to join. The statement attributed to Schuth that "the boys that are with the Vogue-Wright are going to be taken care of" by the respondent, finds no corroborative support in the circumstances. Since September 1940 the respondent had been operating under a contract with the Union. There is no evidence show- ing that the respondent had ever discriminated against its employees because of their union membership or activities. In view of the fore- going it is difficult to believe that such statements either represented the respondent's policy or were made by Schuth on his own respon- sibility. Schuth's version of the conversation with Kersten, in contrast to Kersten's, is entirely plausible. According to Schuth it was Kersten himself who initiated the conversation. He began by complaining bit- terly against alleged mistreatment "received from the respondent; he said that as a result of his demotion he would now have to join the Union, which he detested. At that point Schuth said that "negotia- tions were in progress in the office and that if Kersten felt that way, ' The Trial Examiner found at the same time that the allegations of the complaint that the strike was caused by the respondent's refusal to bargain with the Union were without basis in fact since the record, disclosed that there was no issue over the contract prior to the strike. VOGUE-WRIGHT STUDIOS, INC. 775 about it why didn't he wait 2 or 3 days to see what the outcome might be." Inasmuch as the suggestion was made by Schuth in a friendly -conversation initiated by Kersten himself, in response to Kersten's complaint about having to join the Union, and contained neither a threat of reprisal or promise of benefits, such suggestion was not violative of the Act. Assuming, however, that Kersten's version of the conversation was true, we do not believe that Schuth's alleged statements and the re- spondent's refusal to neutralize them were the real cause of the strike. It is a reasonable inference that the Union merely seized upon the incident as an excuse to enlist respondent 's support in getting more members before the maintenance of membership clause of the new con- tract became effective and that it was the respondent 's refusal to extend such support that caused the strike . Only a few days before, the Unio3i in an effort to complete the unionization of the plant , had de- ferred execution of the contract until the four non-union artists in the mechanical department joined the Union, hoping that the few remain- ing non-union employees would follow their example. The respondent at that time cooperated with the Union in procuring memberships of these employees . When the Schuth-Kersten incident occurred, the Union not only asked for a retraction of Schuth's alleged anti-union statements , which ordinarily would have been sufficient to neutralize such an incident, but also for an opportunity of addressing the non- union photographers on the respondent's premises. The significance of this demand is revealed in President Dungan's comment thereon : "all you are trying to do is [to] get a closed shop out of that matter and you want us to get it." After a complete understanding had been reached with respect to the new contract , under the terms of which the Union obtained substantial benefits, including the union shop, maintenance of membership and check off, and with a large number of employees already in the Union , it is highly improbable that the Union would have been moved to strike over the rather mild anti- union statements attributed to Schuth . The respondent was under no obligation to extend its cooperation in the Union drive for 100 percent membership in the plant by giving the Union a further oppor- tunity to address non-union employees in the plant ; its refusal to do so clearly was not violative of the Act. On the entire record we find that the anti-union statements attrib- uted to Vice-President Schuth were not in fact made; and that, even assuming that they had been made, they were not the real cause of the strike; and that accordingly, the September 4 strike was not caused by unfair labor practices of the respondent. 776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2.2 Although the strike of September 4, 1945, at its inception was an economic strike, we find that it was immediately transformed into, an unfair labor practice strike and prolonged by the respondent's subsequent unlawful conduct as found by the Trial Examiner. Imme- diately following the declaration of the strike the respondent began contacting striking employees and urging them to abandon the strike and return to work. It either made definite promises of wage increases or intimated that, individual raises would be given, if they returned to work. Thereafter, wage increases were given to all strikers who returned to work. The respondent likewise, as found hereafter, estab- lished a labor organization, the Progress Council, which acted in part on employee grievances and some terms and conditions of work. This conduct was in violation of the respondent's obligation to deal with the Union as the exclusive bargaining representative of its employees, and was in derogation of the Union's status as such representative. The strike did not impair the Union's position as such representative and the respondent's obligation to bargain with the Union continued. The Union was still entitled to be consulted on any terms affecting wages and working conditions.3 By the conduct noted in this para- graph, the respondent refused to bargain in good faith with the Union in violation of Section 8 (5) of the Act.4 Although normally the respondent would have a right to replace permanently its striking employees, in order to protect and carry on its business, it lost its right to do so by engaging in unfair labor practices, the effect of which was to prolong the strike.-5 Because the respondent embarked upon such conduct on the first day of the strike, its right to make permanent replacements was forfeited on the very first day of the strike. We will, therefore, direct the respondent to reinstate all striking employees, who upon the termination of the strike 2 On September 26, 1945 , the parties herein entered into a settlement agreement wherby the Union agreed to withdraw its charges of unfair labor practices then pending before the Board and the respondent promised not to interfere with the right of employees to join or not to join the Union and to bargain collectively with the employees ' bargaining agent. Despite this agreement, the respondent continued the solicitation of individual strikers after the settlement agreement and failed to bargain with the Union in good faith For this reason the settlement agreement may not be relied upon by the respondent to shield its earlier unfair labor practices , and the Board will scrutinize the respondent 's conduct both prior to and after such agreement, and rely thereon in making its findings 2 Cf Matter of Crompton-Highland Mills, Inc, 70 N. L R B. 206 , 222, flatter of Montgomery Ward & Company, 37 N. L. R. B . 100, 125 , enf'd 133 F. (2d) 676 (C C A- 9) ; Matter of Craddock -Terry Shoe Corp., 73 N. L . R. B. 1339 4 We find it unnecessary in arriving at a conclusion that there was a refusal to bargain in good faith , to rely upon the respondent 's recession from concessions previously agreed upon in the form of a union shop , maintenance of membership and a check off. 5 We are of the opinion that the exclusion of supervisory employees from the unit found appropriate should be modified to read "excluding supervisors as defined in the Act," and with such modification we find that the Union represented a majority of the employees in an appropriate unit on August 29, 1945 , and at all times thereafter Black Diamond S. S. Corp. v. N . L. R. B., 94 F. (2d) 875 ( C. C. A. 2 ), cert. den. 304 U. S. 579. VOGUE-WRIGHT STUDIOS, INC. 777 applied for reinstatement, dismissing, if necessary, all new employees who were employed as replacements after the beginning of the strike. 3. We agree with the Trial Examiner's finding that the respondent has dominated and interfered with the formation and administration of and contributed support to, the Progress Council, and that the Progress Council was in fact an employee representation committee which existed in whole or in part for the purpose of dealing with the respondent concerning grievances and other conditions of work. The record discloses that for some time prior to the formation of the Progress Council, the respondent held periodically departmental supervisors' meetings, known as Monday meetings, devoted to a dis- cussion of work procedures and art methods. Following the break- down of collective bargaining negotiations and an unsuccessful strike with many striking employees still denied reinstatement, the respond- ent in November 1945 changed the Monday meetings from meetings of departmental supervisors into meetings of departmental repre- sentatives, selected by employees in each department from rank and file employees. The new organization thus set up by the respondent became thereafter known as the Progress Council. From then on staff meetings of departmental supervisors were held separately. Respondent's President, Mr. Williams, called and presided at the meetings of the Progress Council as chairman. His secretary kept the minutes of the meetings, which were published in the respondent's publication "This 'n That." Meetings were held on company time and employees were paid for time spent in attendance. While the Council concerned itself principally with a discussion of industry problems and the achievement of better production methods and techniques, this was by no means the exclusive function of the Council. The record establishes that the Council also considered working condi- tions and its employee delegates acted to secure better conditions of employment, grievances of individual employees being brought before the meetings. Matters discussed at the meetings of the Progress Council included better lighting, employees' photographic waiting time, care of merchandise, circulation of a drinking fountain, addi- tional hospitalization and sick benefits, and a central radio system to eliminate the use of individual radios. Upon the entire record, we find, as did the Trial Examiner, that the respondent's domination and interference with and support of the Council constitutes a continuing obstacle to the free exercise by the employees of their right to self- organization and collective bargaining, and that the Council is incapable of serving employees as a genuine collective bargaining agency. Accordingly, pursuant to our policy announced in Matter 778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of Carpenter Steel Company ,6 we shall order that the respondent disestablish the Council as the representative of any of its employees for the purposes of dealing with it concerning grievances, labor dis- putes, wages, rates of pay, hours of employment, or other conditions of employment. 4. Motion to reopen the record: The respondent moved to reopen the record subsequent to the completion of the hearing herein: (a) to receive the testimony of Miss Vanderlee for the purpose of disproving the unfavorable inference drawn by the Trial Examiner from the respondent's failure to produce this witness at the hearing; and (b) to receive evidence that would show that at the time of the Schuth- Kersten conversation, Kersten, as a part of his job, had made a photo- graph of a hunting cap, thereby impeaching Kersten's veracity. In its brief, the respondent seeks to justify its failure to call Miss Van- clerlee on the grounds of her illness and the further fact that it did not anticipate that its failure to secure Miss Vanderlee's testimony would be held against it. Neither of these grounds constitutes a valid reason for the reopening of the record at this time. Insofar as the inability of Miss Vanderlee to leave her home is concerned, her testimony could have been secured by deposition, if, as it is now claimed, her testimony was essential to the respondent's defense. No such effort, however, was made by the respondent. The respondent may not at a late hour ask for the reopening of the hearing with re- sultant delay in the final adjudication of the case.? Equally invalid is the excuse that the respondent could not have reasonably anticipated the unfavorable inference made by the Trial Examiner from its fail- ure to produce the witness or to account for its inability to do so.8 The inference drawn by the Trial Examiner, under the circumstances, was not unreasonable and the respondent was bound to anticipate it. The failure to adduce at the hearing the evidence concerning the hunting cap is sought to be excused on the ground that the respondent at the time of the hearing had "no knowledge or information that its records covering the photographs made by Kersten of the hunting cap [contrary to his testimony] were still in existence." Since the respondent at all times was the custodian of those records, the,excuse for their non-production is frivolous. The information as to whether they were or were not in existence was peculiarly within the knowl- edge of the respondent and could have been easily ascertained by the respondent. The respondent did not ask the Trial Examiner for leave to hold the hearing open for a reasonable time to make the necessary search. Moreover, in view of the fact that we. hold that 6 76 N. L R B 670 ' Cf. Matter of U. S. Truck Company, 12 N. L. R. B. 828. s Cf Matter of Fruehauf Trailer Co, 301 U S. 49. VOGUE-WRIGHT STUDIOS, INC. 779 the strike at its inception was an economic strike, contrary to the Trial Examiner's finding, the introduction of this evidence is unnec- essary to aid the respondent's case. THE REMEDY The Trial Examiner, among other measures designed to effectuate the policies of the Act, recommended that the Board direct the re- spondent, upon request, to bargain collectively with the Union as the exclusive representative of the employees- in the appropriate unit. Since the issuance of the Intermediate Report, however, the Act has been amended to preclude the Board from certifying as bargaining -representative any labor organization which, like the Union herein, has not complied with the provisions of Section 9 (f), (g), and (h) of the Act, as amended. In view of this amendment our order in this proceeding will be conditioned upon compliance by the Union with the above-cited section of the Act, as amended, within thirty (30) days from the date of the order herein.° ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the respondent, Vogue-Wright Studios, Inc., Chicago, Illinois, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Interfering with the formation and administration of the Prog- ress Council, or the formation and administration of any other labor organization of its employees, and from contributing support to the Progress Council or to any other labor organization of its employees; (b) Discouraging membership in the United Commercial Artists and Photographers, or any other labor organization of its employees, by discharging and refusing to reinstate any of its employees dr in any other manner discriminating in regard to the hire and tenure of employment and any terms or conditions of employment; (c) Refusing to bargain collectively with the United Commercial Artists and Photographers, if and when said labor organization shall have complied, within thirty (30) days from the date of this order, with Section 9 (f), (g), and (h) of the Act, as the exclusive representa- tive of all artists, photographers, photo copyists and their apprentices, excluding supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, and other conditions of employment; D Matter of Marshall and Bruce Company, Case No. 10-C-1792, 75 N L R B. 90. 780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Commercial Artists and Photographers or any other labor organization, to bargain collectively through representatives of their own choosing, if and when said labor organization shall have complied with the filing requirements of the Act, as amended, in the manner set forth above, and to engage in con- certed activities for,the purposes of collective bargaining or other mu- tual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: 10 (a) Completely disestablish the Progress Council as the representa- tive of any of its employees for the purpose of dealing with the respond- ent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (b) Offer to the employees named in "Appendix A" immediate and full reinstatement to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges, in the manner set forth in the section of the Intermediate Report en- titled "The Remedy," placing those employees for whom employment is not immediately available upon a preferential list, in the manner set forth in said section, and thereafter, in said manner, offer them employ- ment as it becomes available; (c) Make whole the employees listed in "Appendix A"' for any loss of pay they may have suffered by payment to each of them of an amount equal to that which he would normally have earned as wages during the period from October 4, 1945, to the date of the respondent's offer of reinstatement or placement upon a preferential list, in the manner set forth in the section of the Intermediate Report entitled "The Remedy" ; (d) Make whole employees Chadde, Corneau, and Schwiedergoll for any loss of pay they have suffered by payment to each of them of an amount equal to that which he would normally have earned as wages during the period from October 4, 1945, to the date of his reinstate- ment, less his net earnings during said period; (e) On request and upon compliance by the Union with the filing requirements of the Act, as amended, in the manner set forth above, bargain collectively with the Union as the exclusive representative of the employees within the unit found to be appropriate for the purposes of collective bargaining, with respect to rates of pay, hours of employ- 10 The Board expressly reserves the right to modify the back pay and reinstatement pro- visions of this order if made necessary by a change of conditions in the future, and to make such supplements thereto as may hereafter become necessary in order to define or clarify their application to a specific set of circumstances not now apparent. VOGUE-WRIGHT STUDIOS, INC. 781 silent, or other conditions of employment, and if an understanding is reached, embody such understanding in a signed agreement; (f) Post immediately in conspicuous places throughout the studios of the respondent in Chicago, Illinois, copies of the notice attached hereto and marked "Appendix B." 11 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being signed by the respondent's representative, be posted by the respondent immediately upon receipt thereof and maintained by it for thirty (30) consecutive days thereafter and also for an additional thirty (30) consecutive days in the event of compliance by the Union with the filing requirements of the Act, as amended, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; ° (g) Notify the Regional Director for the Thirteenth Region in writ- ing within ten (10) days from the date of this Order and again within ten (10) days from the future date, if any, on which the respondent is officially notified that the Union has met the condition hereinabove set forth, what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint respond- ent discriminatorily discharged William Horton and Kenneth Hoopes, be dismissed. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. APPENDIX A Sol Baroff Tessie Krasinski Frank Siok Rudolph Fuhr Janith Maginnis Ernest Stiess Mary Hjorth Charles Plummer Rudolph Zack Stanley Kersten Frank Point Adam Kinczyk Kate Richardson APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : 11 In the event that this Order is enforced by a decree of a Circuit Court of Appeals, there shall be inserted before the words "A Decision and Order " the words "A Decree of the United States Circuit Court of Appeals Enforcing " 782 DECISIONS , OF NATIONAL LABOR RELATIONS BOARD WE WILL bargain collectively upon request with the UNITED COMMERCIAL ARTISTS AND PHOTOGRAPHERS as the exclusive repre- sentative of all the employees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment and if an understanding is reached, embody such understanding in a signed agreement, provided said labor organization complies, within thirty (30) days from the date of the aforesaid order of the Board, with Section 9 (f), (g), and (h) of the National Labor Relations Act, as amended. The bargaining unit is: All artists, photographers, photo-copy- ists, and their apprentices, excluding supervisors as defined in the Act. WE hereby disestablish the Progress Council as the representa- tive of any of our employees for the purposes of dealing with us concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment and we will not recognize it or any successor thereto for any of the above purposes. WE WILL.NOT interfere with the formation or administration of any labor organization or contribute other support to it. WE WILL OFFER to the employees named below in the manner set forth in the aforesaid order immediate and full reinstatement to their former or substantially equivalent positions without prej- udice to any seniority or other rights or privileges previously enjoyed and make them whole for any loss of pay suffered as the result of the discrimination. Sol Baroff Charles Plummer Rudolph Fuhr Frank Point Mary Hjorth Kate Richardson Stanley Kersten Frank Siok Adam Kinczyk Ernest Stiess Tessie Krasinski Rudolph Zack Janith Maginnis WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organizations, to join or assist UNITED COMMERCIAL ARTISTS AND PHOTOGRAPHERS or any other labor organization, to bargain collectively through representatives of their own choos- ing, and to engage in concerted activities for the purposes of col- lective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condi- VOGUE-WRIGHT STUDIOS, INC. 783 tion of employment against any employee because of membership in or activity on behalf of any such labor organization. VOGUE-WRIGHT STUDIOS, INC., Employer. By ------------------------------ (Representative ) ( Title) Dated -------------------- NOTE: Any of the above-named employees presently serving in the armed forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the armed forces. This notice must remain posted for sixty (60) days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Mi. Robert Ackerberg, for the Board. Pope and Ballard, by Mr. Merrill Shepard, of Chicago, Ill., and Mr. Isaac M. Mills, of Chicago, 111, for the respondent. Mr. E. W. Adams, of Chicago, Ill., for the Union. STATEMENT OF THE CASE Upon a first amended charge duly filed July 8, 1946, by United Commercial Artists and Photographers, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Thirteenth Re- gion (Chicago, Illinois), issued its complaint dated July 10, 1946, against Vogue-Wright Studios, Inc., Chicago, Illinois, herein called the respondent, alleg- ing that respondent engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1), (2), (3) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and first amended charge, together with notice of hearing thereon, were duly served upon respondent, the Union, and the Progress Council, hereinafter called Council. Concerning the unfair labor practices, the complaint alleged in substance that the respondent violated the Act by: (1) making statements about August 29, 1945, dissuading employees from joining the Union and expressing the intent to destroy the Union ; (2) refusing to bargain with the Union, the duly designated representative of employees in an appropriate unit on and after August 29, 1945, in that it individually solicited employees to return to work during the course of a strike called by the Union, made unilateral offers and payments of wage increases as inducements to return to work, insisted that changes in working conditions be instituted without consulting the Union, stated that bargaining could proceed and agreement be reached only upon the basis of an open shop, and established in November 1945, and thereafter maintained the Council as successor to the Union ; (3) causing the Union to go out on strike on September 4, 1945, because of acts mentioned above occurring before that date and thereafter prolonging said strike by reason of all of the foregoing acts; (4) refusing on October 4, 1945, and there- after to reinstate 16 named employees, with exceptions hereafter noted, because the employees-joined the Union and engaged in concerted activities; (5) discharging William Horton on March 21, 1946, and Kenneth Hoopes on April 3, 1946, because 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they joined the Union and engaged in concerted activities;, (6) forming the Council in November 1945, and thereafter dominating and interfering with its administration and contributing financial and other support thereto; and (7) by these acts and conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent filed an answer in which was set forth a statement of facts constituting the.grounds of its defense. Therein, the respondent denied the com- mission of any unfair labor practices alleged and asserted that a Settlement Agreement, dated September 26, 1945), was a bar to the trial of certain issues raised by the complaint. The respondent denied also, that it was engaged in commerce within the meaning of the Act. On August 5, 1946, the counsel for the Board served upon the respondent a demand for a bill of particulars. This demand, referred to the' Trial Examiner, was ordered complied with and counsel for the respondent, on the second day of the hearing, stated on the record the particulars demanded by the Board's attorney. Pursuant to notice, a hearing was held at Chicago, Illinois, from August 19., 1946, to August 27, 1946, before Mortimer Riemer, the undesigned Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel, the Union by its representative, and all participated in the hearing Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. On the second day of the hearing, the Board moved a minor amendment to the effect that Frank Point, a striking employee, was not reinstated after the strike. The motion was allowed. At the conclusion of the Board's case, the respondent moved to dismiss the complaint. The motion was denied. Respondent's counsel, Isaac M Mills, then asked leave to withdraw from the case as attorney of record, substituting other counsel At the conclusion of the hearing, counsel for the Board moved to amend the complaint by adding to the alleged appropriate unit a clause excluding supervisory employees. There was no objection to the motion and it was granted, counsel for the respondent and the Board stipulating that the amendment stated an appropriate exclusion. The Board's motion to con- form the pleadings to the proof was granted without objection. Ruling was re- served on the respondent's motion to dismiss and this motion is disposed of here- inafter. A date was fixed for the filing of briefs with the Trial Examiner. Thereafter, briefs were submitted. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the follows : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Vogue-Wright Studios, Inc., is a Delaware corporation with its principal office and studios in Chicago, Illinois. There it operates commercial art and photo- graphic studios, occupying all or part of three separate buildings.' The respondent holds itself out as "America's largest complete art and photographic studio." The respondent's process is to make photographs and drawings of merchandise, illus- trating the merchandise for advertisement and sale in catalogues published by Sears, Roebuck and Co, Montgomery Ward & Co., and others of respondent's customers. The respondent completes the drawing or photograph up to the point 1 469 East Ohio Street , 237 Ontario Street, and 441 East Ontario Street. VOGUE-WRIGHT STUDIOS, INC. 785 of engraving or printing and respondent's process ends with completion of the drawing or photograph The respondent's process is departmentalized in the following departments : lettering, men's fashions, shoe, mechanical, women's fashions, retail, printroom, photographic, advertising, and layout. In addition three separate departments are devoted to work performed for nationally known mail order houses as Sears, Roebuck and Co, Montgomery Ward & Co., and Spiegel, Inc. In 1945, the respondent received as gross income for its services in excess of $100,000, and for the same period approximately 121/2 percent of orders received by respondent were from customers located outside the State of Illinois. In 1945, 80 percent of the respondent's gross income came from Sears, Roebuck and Co, Montgomery Ward & Co.. Spiegel, Inc, and Alden's, Inc. In the course and conduct of its business, respondent purchases photographic equipment, including cameras, lenses, film, bulbs and stands and paper dies, paints, chemicals, lumber, lighting fixtures and furniture. Some of these supplies have been purchased and shipped to the respondent from points outside the State of Illinois On occasions the respondent sends some of its artists to New York City for work in connection with other studios. While so engaged they are paid by the respondent. Numbered among the respondent's customers in addition to these mentioned above are Standard Oil Company, Ford Motor Company, Raleigh Cigarettes, and Canadian mail order houses such as Ridgon, Ltd, of Winnipeg and Wheaton of Toronto. Thus, merchandise to be photographed and illustrated has been sent to the re- spondent from States other than the State of Illinois, and from Canada. The respondent employs approximately 270 employees, of whom about 110 are con- cerned in the unit alleged herein to be appropriate? The respondent denied that it was engaged in interstate commerce within the meaning of the Act. The undersigned finds on the basis of the foregoing facts that the respondent caused a substantial amount of personnel and merchandise to be transported and delivered in interstate commerce, and that it has caused a substantial amount of its completed products to be transported and delivered in interstate commerce to and through States of the United States other than the State of Illinois. It is also clear that the Chicago office and studios perform a vital service preliminary to the display. advertising and sale of its clients' mer- chandise. The respondent's clients are directly and extensively engaged in inter- state commerce and a labor dispute disrupting respondent's photographic and art services would necessarily tend to curtail and disrupt the interstate move- ment of its clients' catalogues. The undersigned finds that the respondent is en- gaged in commerce within the meaning of the Act.' II. THE ORGANIZATIONS INVOLVED United Commercial Artists and Photographers is an unaffiliated labor organ- ization, admitting to membership employees of the respondent. The Progress Council is an unaffiliated labor organization, admitting to mem- bership employees of the respondent. 2 The findings above are based upon the pleadings, the testimony of witnesses, and stipu- lations entered into between counsel for the Board and the respondent. 8 Matter of Spalek Engineering Company, 45 N. L. 11 B. 1272 ; Matter of Electrical Test- ing Laboratories, Inc , 65 N. L. R B. 1239. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A Background 1. The contracts Pursuant to a consent election agreement on May 6, 1940, and an election, thereafter held, the respondent on September 5, 1940, signed a collective bar- gaining agreement with the Union, then affiliated with the International Printing Pressmen and Assistants' Union of North America.4 This agreement recognized the Union as the exclusive representative of all artists, photographers and photo- copyists, with certain stated exceptions, then employed by the respondent In the intervening years that followed thereafter and down to 1945, the respondent and Union executed other signed contracts governing their relations. . The contracts between the parties dealt with all phases of the bargaining relationship. Therein were fixed the unit, hours of work, wages, overtime pay, apprentices' scale, and other conditions of employment. In addition, clauses were set forth pertaining to subjects and conditions peculiar to the respondent's business. In late 1942, - the respondent purchased the Waskow-Sechler Studio, and thereafter on November 3, the respondent and the Union entered into a separate agreement covering all artists formerly employed by this studio. These artists made up, substantially, the respondent's shoe department. The 1943 contract extended the Union's coverage to include "all artists, photographers, photo-copyists and their apprentices" and granted the Union a modified form of preferential shop. Provision for arbitration seems to have been included for the first time in this contract. The last contract between the parties was effected August 31, 1944, for a term of 1 year. The unit remained the same, i. e., "all artists, photographers, photo-copyists and their apprentices " A form of union shop was granted the Union in the following clause : The Employer agrees that, when in need of additional employees, it will call the Union, stating the number, character and compensation (not less than the minimum herein agreed to) of the help required, and the Union agrees to supply the needed employees if possible If the Union is unable to furnish help as required, the Employer may obtain same elsewhere. The Employer agrees to recognize a Union Shop to the extent that all members who are now in the Union remain members and that all new employees apply for membership after two weeks, excepting employees with high talents or special abilities. Other provisions dealt with wages, hours, holidays, and arbitration procedures. After expiration of the 1942 contract in August 1943. a dispute arose on renewal which was certified to the National War Labor Board, herein called, War Labor Board. The Union had requested a closed shop and check-off which the respondent opposed. A regional panel of the War Labor Board, in a report dated June 15, 1944, made recommendations on issues dealing with union security, check-off and wages. The panel recommended continuance of existing prefer- ential shop conditions and adoption of the standard maintenance of membership provision The demand for a check-off was denied. On wages the panel recom- mended a 17-cent hourly wage increase on the wages of all journeymen in the bargaining unit Accordingly on October 25, 1944, the parties entered into a 4In 1944, the Union gave tip its affiliation with the International Printing Pressmen and Assistants ' Union of North America, but it retained its officers and records. VOGUE-WRIGHT STUDIOS, INC. 787 separate agreement adopting the panel recommendations and modifying the August 1944 contract referred to above, to the extent required by the recommendations. Although reference to the above contractual dealings seems to indicate a har- monious relationship between the parties, there were in fact certain discords and differences. For example, Elmer W. Adams, the Union's business representative and executive secretary, had on two occasions protested the respondent's attempts to initiate wage increases without consulting the Union, at a time when the Union was seeking a general wage increase for all employees. On numerous in- stances Adams conferred with Albert W Dungan, the respondent's president, and other company officials about grievances and on or about July 29, 1945, according to Adams' uncontradicted testimony which is credited, Dungan told Adams that Charles Plummer, the Union's president, raised too many grievances and but for the fact that Plummer was the Union president, Dungan would discharge him because of his "attitude." It also appears from other uncontradictecl and credible testimony of Adams, that before "each" of the foregoing contracts was consuin- inated, union members engaged in various types of work stoppage, in protest against the respondent's bargaining tactics. Once, employees in either the photo- graphic or mechanical department refrained from working for a 2-hour period. On another time, the photographers walked out and remained away from work for a week. 2. The settlement agreement During July and August 1945, the parties were engaged in conferences leading to a renewal of the contract expiring August 31, 1945. On September 10, 1945, the Union filed a charge that the respondent had failed to bargain collectively in good faith with the Union.' On September 26, 1945, the parties entered into a Settle- ment Agreement, approi ed by the Regional Director, under terms of which the respondent agreed to post an appropriate notice and the Union to request with- drawal of the charge. The notice posted subsequently stated that it was the respondent's policy not to interfere with the employees' right to join the Union or any other labor organization and to bargain collectively through chosen repre- sentatives, and that the respondent had not refused nor would it in the future refuse to bargain with representatives of the employees Whether the Settle- ment Agreement was effective as a binding disposal of charges subsequently filed against the respondent, rests upon it consideration of later acts, discussed here- after No findings of unfair labor practices ate premised on any of the facts set forth in the foregoing paragraphs. P. The refusal to bargain collectivehl, and ienistate striking employees; other acts of mterference, restraint, and coercion 1. The appropriate unit The complaint alleges that a unit of "all artists, photographers, photo-copyists and their apprentices" employed by the respondent constitutes a unit appropriate foi the purposes of collective bargaining. This is a unit recognized and accepted by the respondent since 1943, and was the unit included in the last signed contract between the parties. Although the respondent's answer admits the existence of Matter of Vogue-Wright Studios, Case No. 13-C-2657. 781902-48-vol. 76-51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD contracts covering the foregoing unit, it nonetheless denied the appropriateness of the unit But it offered no proof in support of its denial of inappropriateness. By Board amendment at the hearing, not opposed, to the above unit was added this exclusion : "excluding supervisory employees who spent less than 50 percent of their time doing commercial art or photographic work." The exclusion was deemed appropriate by the respondent ° The undersigned finds that the above-described unit at all times material herein constituted and now constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 2. Representation by the Union of a majority in the appropriate unit The complaint alleges that the Union on August 29, 1945, had been designated and selected as the exclusive representative for the purposes of collective bar- gaining by the majority of the employees in the appropriate unit found above. In the consent election held in May 1940 among all artists, photographers and photostat operators, out of 126 votes cast, 74 voted for the Union and 52 voted against it. Thereafter a contract was negotiated and in later years when new contracts were consummated and the unit enlarged, the respondent did not ques- tion the Union's majority. In the last contract in existence between the parties, expiring August 31, 1945, the Union was accepted as the "sole bargaining agent for all artists, photographers, photo-copyists and their apprentices." In negotia- tions that followed thereafter concerning the renewal contract, the respondent did not question the Union's majority and was willing, as is apparent from a counter-proposal submitted to the Union as late as October 3, 1945, to recognize the Union as the sole bargaining agent. Despite this, the respondent's answer by general denial raised the issue of the Union's majority representation. There was introduced in evidence a pay-roll list, based on the respondent's records, showing the names of all employees on the pay-roll date preceding the strike of September 4, 1945, within the unit covered by the last contract. Accord- ing to Adams' testimony a comparison of those names with Union records dis- closed at least 78 union members out of the 126 names on the pay roll. In addi- tion Adams listed the names of 8 additional union members who were employed as of the last pay-roll date but not shown on the pay-roll list, making a total of 86 out of 126 names. An independent comparison of the Union's records with the pay-roll names made by a Field Examiner of the Board disclosed that the Union possessed 79 apparently genuine application cards reflecting pay-roll names and variously dated between April 1938 and August 1945, with 7 undated cards. Moreover, 82 union ledger sheets reflected individual pay-roll names, showing last dues payments between September 1944 and July 1946. The undersigned finds that on August 29, 1945, and at all times thereafter, the Union was, and now is, the duly designated representative of the majority of the employees in the aforesaid appropriate unit, and that, by virtue of Section 9 (a) of the Act, the Union at all times was, and now is, the representative of all the respondent's employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. ° Thus the unit would be stated , "all artists , photographers , photo -copyists and their apprentices, excluding supervisory employees who spend less than 50 percent of their time doing commercial art or photographic work " VOGUE-WRIGHT STUDIOS, IN U. 789 3. The refusal to bargain Events leading up to the strike On April 27, 1945, while the last contract was in effect, Adams wrote Norman JcWilliams, the respondent's general manager and one of its vice -presidents, concerning "several problems," including the matter of vacations for "shoe artists" and the respondent's asserted failure to grant certain employees a 15-percent wage increase. McWilliams replied a few days later and expressed the desire to "go into" the matters with Adams. Thereafter on June 4, Adams wrote President Dungan that the vacation que°t:on had not been settled to the satis- faction of the shoe department employees and expressed the hope that these employees would be granted the same consideration shown other employees. Sometime in early July 1945, Adams discussed with the respondent the renewal of the existing contract, due to expire August 31, 1945. On July 11, Adams received the following letter : In keeping with the conversations at the recent meeting held between yourself and representatives of the three undersigned Studios, we have decided to negotiate our contracts with the United Commercial Artists & Photographers Union at one time. For this purpose, we have engaged Mr. R. A. Good to act as our repre- sentative in arranging the contract for the coining year and to handle all future contracts between the Studios and the Union. Until further notice, he will be the only person who has any authority whatsoever to discuss any problems which may arise during the period of our contract. This document was signed by President Dungan on behalf of the respondent ; Roy H . Davis , vice-president of Commercial Illustrators , Inc. ; and Stanley R. Anderson , president of Berlet-Anderson-Marlin, Inc Adams met with Good on July 24, at which time they discussed various terms of the proposed renewal contract. They met again on August 1 and August 8, by which time according to Adams' testimony the substance of a complete agree- ment was "practically settled." At the next meeting, Good was told, however, that before they "completed everything," Adams wanted to speak to Dungan about four employees in the mechanical department who were opposed to and had not joined the Union. Adams testified further that he had previously spoken to Dungan about this matter and Dungan had agreed to tell the four employees that it was satisfactory for them to join the Union . Good then asked that Adams give the names of the four employees to his secretary , Miss Vanderlee. Adams stated that he put the names of the four men in his own handwriting on a slip of paper and handed it to the secretary . Adams' account is corroborated by Plummer who testified : Well, the contract was virtually acceptable to both of us at that time, and Mr. Adams asked the privilege of talking to three or four of the men, the artists, in order to get them into the union before the contract was signed, and he asked for that privilege, to speak to them. At that time he wrote their names down, I think it was of four of the men that he would like to, talk to. Plummer testified also that the substantive provisions acceptable were the same as those later incorporated in the signed contract between the Union and Com- mercial Illustrators , Inc., and Berlet-Anderson-Marlin, Inc. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Good testified, however, that "if these four men were gotten into the union that the contract would be signed . . ." Accordingly, Good asked Adams to put the employees' names in memorandum form and at Good's request, Adams dictated the memorandum directly to Good's secretary who thereupon typed it. At the hearing there was introduced into evidence the purported typed memorandum dictated by Adams.' Dungan also testified that Good gave him this memorandum in Adams' presence, and that Adams stated that the four named men would have to join the Union before the contract was signed. Aside from this conflict, which is resolved below, it is clear that Adams spoke to some of the named employees on August 29 on the respondent's premises and Magine, Hoffmann, Patten and employee Sriver joined the Union on August 28 or 29.' Both Adams and Plummer testified that they saw the typed memorandum for the first time when it was produced at the hearing. They vigorously denied that it was dictated on the machine to Good's secretary on the date it bears. Both men likewise denied ever stating that the four named employees had to join the Union as a precondition for signing a contract. The authenticity of the exhibit, reproduced in full in the footnote above, is of importance because of the light it sheds on the credibility of witnesses and the cause of the strike. Adams and Plummer fixed the date of the meeting when Adams furnished the names of the four employees as August 28, 1945' Adams testified that he saw Dungan on August 29, and on or about the same day spoke to some of the named employees. He likewise fixed this time by reference to another event, the Schuth-Kersten conversation 10 of which he was apprised by Plummer about noon on August 29. Both Good and Dungan were uncertain as to the exact date of the meeting which produced the disputed document. Dungan said he received the slip from Good in Adams' presence "somewhere around the 28th, 29th or 30th, right in there." Good fixed the meeting as taking place "during the latter part of August" but acknowledged that he, was not himself present and he did not hear Adams dictate the names to his secretary. It is not without sig- nificance that Miss Vanderlee, Good's secretary, who he testified typed the memo- The memorandum is reproduced herein in full : 8/24/45 Mike Magine L. Snary V Hoffmann A Patten They must join the union before the contract can be signed. We believe that the girls and other non-union people scattered throughout the studio will then join without further trouble. ELMER ADAMS 8 Adams talked to Magma on August 28. Called in rebuttal Adams testified : Q (By Mr Ackerberg.) Mr. Adams, I show you Respondent's Exhibit No 1, and ask whether that was the first time you ever saw that document? A. The other day, about 2 days ago, when it was offered in evidence. Q. Do you recall a meeting with Mr. Good on or about August 24th, 19459 A. I do. Plummer testified in rebuttal : Q. (By Mr. Ackerberg.) Mr Plummer, did you have a discussion with Mr Good about August 24, 1945' A. We did. Q Was that in his office? A In his office. Q I show you Respondent's Exhibit No 1 and I will ask you when you first saw that document? A. I think that was the day before yesterday was the first I saw it : on your desk 10 This is the subject of detailed analysis hereafter. VOGUE-WRIGHT STUDIOS, INC. 791 randum, was not called to explain its source and preparation. Nor was any explanation given for the failure to call her as a witness." The authenticity of the questioned document is not clearly established nor is the undersigned satisfied that there has been a full and complete explanation of its origin. In the undersigned's opinion, Adams did not dictate either in sub- stance or in form the exhibit produced at the hearing. It may represent Vander- lee's construction or interpretation of a handwritten memorandum given her by Adams. Vanderlee, had she been called, might have established this point. In any event, this much is clear, and the undersigned finds that agreement on a renewal contract was "practically" achieved on or about August 28, but Adams, at his request, was given a chance to talk to certain employees who were not as yet members of the Union, before execution of the contract.12 That Good and the respondent's officials deduced that the contract would be signed on condition that the four employees join the Union was not unreasonable in view of Plummer's testimony that on August 28 agreement had been reached on the substantive portions of a contract before Adams requested permission to talk to the four men. That this inference is a logical one is seen by reference to Plummer's further testimony that the provisions agreed to were the same as those later incorporated in the Berlet-Anderson-Marlin, Inc. contract, which provides in part for maintenance of membership, and a check-off of union dues.13 Thus, it seems clear that it was to the Union's advantage to secure the adherence of the four men in question, regardless of whether the respondent understood this to be a prerequisite for the signing of a contract. The Schuth-Kersten conversation Stanley B. Kersten is a photographer who at one time had been in charge of the respondent's photography department. About August 1, 1945, Kersten was relieved of certain supervisory duties and placed on a camera as an operator. Shortly thereafter, Kersten joined the Union. Earl S. Schuth is a vice-president and account executive of the respondent. He went on vacation in August, returning to the studios on August 27, 1945. The complaint alleges that Schuth, on August 29, 1945, in a conversation with Kersten sought to dissuade hint from joining the Union and expressed the intent to destroy the Union and that this conduct of Schuth's was a cause, in part, of the Union's strike. The respective versions of this conversation produced a material conflict. 11 See Matter of Fruehauf Trailer Co., 1 N. L. R. B 68, enforced in N. L. R. B. v. Fruehauf Trailer Co., 301 U. S. 49 (1937). 32 Good testified : Q. (By Air Ackerberg) . . . is it not a fact that Mr. Adams requested an oppor- tunity to speak to four employees in the mechanical department prior to the actual signing of an agreement? A. That is correct. . . . 13 The pertinent provisions are herein set forth in full. 2. The Employer agrees that all members who are now in the Union remain members and that new employees who after a 14 days trial are satisfactory to the Employer, shall apply for membership in the Union. This paragraph shall not apply to employees of high talent or special ability. In case of controversy regarding union membership, the Union will do everything in its power not to jeopardize the interests of the Employer The Employer agrees to deduct monthly from the earned wages and remit to the Secretary-Treasurer of the local Union, the monthly dues of its employees who are members of the Union and who individually authorize such a deduction. 792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD According to Kersten, at about 10 a. in. on August 28, Schuth approached him and stated he would like to talk to him, and suggested they go into Kersten's darkroom. Kersten's account follows : We walked into the darkroom and slammed the door and he says, "Stanley, I understand that you are interested in joining the union." I says, "Yes," I says, "according to your contract, when I am taken off a manager's job and go on the camera, your contract with the union states that within a certain time I have to join the union." He says, "Yes, according to the contract, that is it, but," he says, "don't do it." He says, "Wait a few days." He says, "We are having quite a confab about this affair and this will never be a union shop." He says, "Just hold off three or four days and this is going to blow over and," he says, "the boys that are with Vogue-Wright Studios are going to be taken care of, and what I mean they will be well taken care of." When Kersten came out of the darkroom, he met Plummer who stated he had overheard the conversation and questioned Kersten about it. Kersten then acknowledged that Schuth told him not to join the Union. Kersten is cor- roborated by Plummer who testified that he occupied the darkroom adjoining Kersten's and that he overheard, through the beaver board partition, Schuth advise Kersten not to join the Union for "two or three days, that there wasn't going to be a union shop at Vogue-Wright, and that the ones that went along with them would be taken care of afterwards." Schuth when called testified as follows : Q. (By Mr. Shepard.) Will you state, Mr. Schuth, the circumstances surrounding that conversation, how it came about, where it teak place, and what was said by you and Mr. Kersten? A. As I remember, I went over to our 441 gallery to renew acquaintances with the personnel there after being away. I had spoken to two or three people and I met Mr. Kersten. Mr. Kersten at that time had a print in his hand, it was a print of a hunting cap, and he asked me how I liked that shot. I told him it was very good. He asked me if he could talk to me. I told him yes, but I would like to say hello to the rest of the fellows first and then I would be back. I got back about, oh, five or ten minutes later. He asked me if I would go into his darkroom, that he wanted to talk to me about a lot of things. I went into his darkroom with him He started the conversation by com- plaining bitterly of the mistreatment he had received as an employee of the Vogue-Wright Studios, that he after all these years was back as a photog- rapher. At that time, or just about that part of the conversation, he again iefeired to this print and told me that lie was capable of doing twenty or thirty of them shots a day, but he could not do that now because he felt that there would be pressure brought on him for showing up the other fellows. I told him that I did not believe one word of it, because I pointed out that Mr. Plummer was doing an outstanding job of work when it was ahead of him, and if anybody would slow down on the job, words to that effect, it would be from a source of that nature. But I upheld Mr. Plummer, and I still uphold Mr. Plummer, as doing an outstanding job of work when he had it ahead of him, and I didn't believe anything like that could ever take place. VOGUE-WRIGHT STUDIOS, INC. 793 At that time Mr. Kersten stated to me, "Well, the thing that hurts me more than anything else after all these years is the fact that I have to join the Union." I told him that negotiations were in progress in the office and that if he felt that way about it why didn't he wait two or three days to see what the outcome might be. That was the extent of the entire conversation. Schuth denied Kersten's testimony, pointing out that lie did not know Kersten had a darkroom became when he left on his vacation Kersten had not yet become a camera operator Kersten, in rebuttal, denied uttering the hunting cap portion of Schuth's version or the statements about his ability to make 20 to 30 shots a day. Kersten acknowledged readily that in his account on direct examination he avoided mention of "mistreatment" because he "didn't think it comes into tills affair." Kersten likewise denied any expression of displeasure over joining the Union because at the time the conversation occurred he had been a member for some weeks. The respondent in its answer and in its brief charges that the entire Schuth-Kersten incident was an act of entrapment on the Union's part and "the whole purpose of seeking a conference with Schuth was to entrap the respondent" thereby laying a foundation in part for the strike. Moreover, the respondent asserts that Adams and Plummer deliberately used Kersten because he was a "disgruntled" employee It must be borne in mind that at this time, the Union and the respondent had reached substantial agreement on a contract to embody provisions for a modified union shop and check-off Signing had been withheld pending reduction of the agreement to written form and to give Adams a chance to induce four nien to join the Union. Thus, at the moment, there was no reason to entrap the respondent or jeopardize the culmination of the contract. Action of this kind seems neither logical nor what reasonable men can expect in view of the then status of relations between the parties. The undersigned is of the opinion and finds that there was at the moment no reason to entrap the respondent, and that in fact, this was not done. As to which version of the conversation is to be credited depends on other factors. Kersten was an independent, forthright witness who at the hearing exhibited no malice over his demotion but was, on the other hand, because of other personal interests, inclined to consider it all in the day's work. He im- pressed the undersigned as one who desired to and did tell the truth as he recalled it. Schuth's testimony concerning the conversation seems a mixture of gossip and small talk, which in fact may reflect daily conversations but on the whole, lacks the ring of assurance and fact. It is difficult to believe, for example, that Kersten would express dissatisfaction over joining the Union when in fact, he had for some time been a member of it. Moreover, that Kersten's version is, under all the circumstances, the more reasonable and probable one, is supported to some extent by a later incident involving the two men. About September 11, during the course of the strike, Kersten returned to the plant and met Schuth. He testified as follows : . . . Earl says to me, he says, "Say," he says, "what do you know about those fellows trying to say that I told you not to join the union?" I said, "Now, wait a minute, Earl ; before you go any further, I will tell you just what you told me. You told me not to join the union, that I should wait a 794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD f6i, days, and-that there was never going to be a union shop up_here, and that the boys that are with Vogue-Wi ight are going to be well taken care of." So he kind of hesitated and stood there for a few seconds, he didn't answer me a word on that. and then he says, "Well, I've got to be going. So-long." According to Schuth: I walked up to Mr Kersten and told him that I understood that he said that I said for him not to join the Union He said, "You did." I told him that he knows I did not tell him not to join the Union and I wanted him to know at that time that my conversation was such as I have testified to today. (Seep 793, svple.) The undersigned is of the opinion that Schuth did in fact make the statements substantially as related by Kersten The undersigned so finds By the said statements the respondent interfered with, restrained, and coerced its employee" in the exercise of the rights guaranteed in Section 7 of the Act Other events leading to the strike At noon on August 28, Irwin Nelson, the Union's steward in the mechanical de- partment, spoke to employees Sriver, Magine, Hoffmann, and Patten, the latter three being named on the memorandum referred to above, and told them "it would be a good idea" for them to join the Union and thus have a 100 percent representa- tion. According to Nelson's undisputed testimony, they asked him whether they would have to go out on strike if they joined the Union. Nelson replied that this was a decision determined by majority vote and one he could not answer, but that the members would have "a better chance" if the department was com- pletely organized. That afternoon 11lagine handed in his card and the other three turned in their cards to Nelson on the next day. On the morning of August 29, at or about the time of the Schuth-Kersten conversation, Adams also spoke to Patten and Hoffmann. Adams did not testify concerning the conversa- tions he held with these two men, except to state that they agreed to join the Union and that the conversations were held in Schuth's office. On this latter point, Adams is partially corroborated by Dungan who testified that lie told Adams "he could use the facilities of the office . . . and they were called down and he talked to them . . . The respondent called fatten and Hoffmann who testified substantially in ac- cord that Adams stated there were four non-union members in the mechanical department, who if they joined the Union could by so doing avert a strike" Hoffmann placed his conversation with Adams in Schuth's office ; Patten, however, stated the conversation was held about August 27, on a stair landing in the building, and he denied that he ever spoke to Adams at any time in Schuth's office. Hoffmann also testified that during his conversation with Adams, the latter exhibited "the contracts" but did not read them If Patten and Hoffmann are to be believed, it is clear that Adams had already decided on strike action in the event the four men did not join the Union. It is difficult to believe that the Union would deliberately provoke a strike, in view of contract concessions which granted it a union shop with check-off, over the possible refusal of four employees to join the Union. The inherent improbabili- 14 Patten testified : "The gist of our conversation was that there were four men in our department who were non-union members , and that if we four men would join the union we would avert a strike which was imminent , starting with Labor Day." VOGUE-WRIGHT STUDIOS, INC. 795 ties of this conduct are such that the undersigned cannot accept the testimony of Patten and Hoffmann and it is rejected as not being in accord with the facts. At noon on August 29, Adams lunched with Nelson who told him that he had received the signed applications of Patten and the others. On returning to the studios, Adams met Plummer and then learned for the first time of the Schuth- Kersten conversation. Immediately, Adams went to see Dungan and complained that Schuth "was telling some of our people not to join the union." Adams de- manded that Dungan investigate the affair and if found to be true ask Schuth for a retraction. Dungan replied that he would follow up the matter. That afternoon Adams telephoned Good and asked him to ascertain the facts. Adams telephoned Dungan August 30, at which time Dungan reported that Schuth had denied the utterance of any anti-union remarks. Adams nonetheless told Dungan that he wanted a retraction from Schuth and that under the circum- stances, it was proper for him to address the photographers in Kersten's studio to explain the Union's "side of the story without any interference from the com- pany." Dungan answered that all Adams wanted was the respondent' s assistance in securing a closed shop and lie would not permit it. The next' morning, Au- gust 1, Adams telephoned Good and asked his help in disposing of this con- flict because as he testified it was "delaying the contract." Later, Good called back and made an appointment to meet Adams at 2 p. m. at the respondent's offices. It is necessary to revert for a moment to another conversation, which allegedly occurred on August 29 or 30 between Plummer and Schuth, since it reflects on the Union meeting held at noon on August 31. Schuth testified that about an hour after his conversation with Kersten on August 29, he met Plummer who asked to speak to him in his darkroom. There, Plummer demanded Schuth tell all of the photographers in the 441 studio to join the Union, "because he was going to have a closed shop or else." Schuth replied that he would not tell anyone to join or not join the Union. Plummer acknowledged that he had a conversation with Schuth. He fixed it as occurring on August 30, the day after the Schuth-Kersten conversation. He testified as follows concerning his con- versation with Schuth : Q. (By Mr. Ackerberg.) What was aid? A. I asked Mr. Schuth if I could see him in the darkroom and he said I could. He came into the darkroom and I told him that Mr. Adams was trying to get him to retract the statement that he had made to Stanley Kersten, and that I thought it would be a very good thing if lie did that in order to give Mr. Adams a chance to talk to these men without any interference, that I felt that the photograph department was my department, I was shop chairman of that department, and I thought that I should have the same privilege of Mr. Adams talking to these men without any company interference Q. What did Mr. Schuth say? A. Well, he denied that he had made that statement and I repeated word for word what I had overheard. Q Is that the full substance of the conversation as you recall it? A. I told Mr. Schuth-he said that there was not going to be a union shop, or closed shop, as he called it. "No," he said, "There would not be it union shop", and I said "Well, we already have a union shop according to our contract." That is approximately all that was said. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. On that occasion did you ask Mr Schuth to tell all of the photographers to join the union? A I did not Q. Did you ask him to advise all of the photogi aphers in 441 to join the union? A. I did not. Q Did you tell Mr Sehuth that you would have a closed shop "or else?". A. I did not In fact. I never asked for a closed shop at any time that I was president of the union. I don't like a closed shop In the undersigned's opinion, Plummer's version represents the more reason- able account of the conversation, one that is consistent with the events that had theretofore transpired It is therefore credited, and the undersigned buds the conversation to have taken place substantially as testified to by Plummer. Adams had notified union members that in the event no retraction was forth- coming, a meeting would be held to consider future action Accordingly, at about 12:30 p m. on August 31, in a park opposite the respondent's studio, the Union held a meeting attended by 70-80 members Plummer first addressed the group telling of Schuth's remarks and the respondent's refusal to have them retracted. Adams then spoke asking what the members wanted to do. Someone suggested that the members refuse to go to work on the first work day after the coming Labor Day holiday. This was carried by a show of hands and according to Plummer the decision was that the members would not return "to work [after Labor Day] until Earl Schuth had corrected the statement he made to Stanley Kersten." i5 The members were also informed that another conference would be held that afternoon with the respondent's officials in an effort to settle all 'differences. Following the union meeting, the employees returned to work and at 2 o'clock Adams and Plummer met with Good. Plummer asked for a full retraction of Schuth's remarks and an opportunity to have Adams speak to the photog- raphers, absent which, the members had voted to strike. Good asked that the contract be signed and the differences settled later Adams supported Plummer, stating the matter should be settled at once, otherwise the respondent would not respect the Union or the contract. It seems clear that at this moment, but for differences over Schuth's remarks, a contract was ready for final writing and signature Good left the conference, returning a few minutes later to report that there would be no retraction because the statement had not been made by Schuth. Adams thereupon remarked, "Well then, there is nothing we can do about it." Good again left the meeting, returning shortly with- the following statement which was then signed by Good and Adams : We, the undersigned, having faithfully worked for a period of thirty days trying to consummate wage and working conditions for Union employees of Vogue-Wright Studios, Commercial Illustrators and Berlet-Anderson- Marlin, have this day come to the conclusion that we cannot agree on terms satis- factory to all interested parties and, therefore, report to you a deadlock of negotiations. August 31, 1945. 15 Findings based upon the credible and convincing testimony of Plummer and Adams, thereby rejecting the less plausible testimony of Patten Patten testified that Plummer stated there would be no work without a contract and there would be no contract unless the photographers in Plummer's department joined the Union Patten could recall no reference at the meeting to Schuth 's remarks VOGUE-WRIGHT STUDIOS, INC. 797 Adams identified the contract executed between the Union and Berlet-Anderson- Marlin, Inc, on September 20, 1945, as one which reflected, except in one particu- lar not here significant, the agreement which, had it been typed and presented in final form on August 31, would have been signed, but for the differences noted above.18 The complaint alleges that Schuth's remarks and the respondent's refusal to have them retracted or neutralized and its failure to proclaim a neutral attitude, as well as its refusal to bargain with the Union on August 29, 1945, caused the Union to strike on September 4, 1945. It has been found above that on August 29, Schuth made certain anti-union statements, the reasonable effect of which would be to dissuade employees from joining the Union. The Union sought by peaceful efforts to secure withdrawal of the remarks and an opportunity to address the photographers. The respondent would not permit either. The strike came about as the result of Schuth's statements and the respondent's refusal to neu- tralize them.17 The undersigned is of the opinion, and finds, that the strike that followed thereafter on September 4, 1945, was caused by the respondent's unfair labor practices. The course of the strike ; appeals to strikers ; further bargaining efforts Approximately 70 employees went on strike on September 4, 1945. Of this number between 30 and 35 returned to work before October 4, and approximately 14 artists in the shoe department were reinstated on that date. The complaint alleges a discriminatory refusal to reinstate another 16 named employees on October 4, for the reason that they joined and assisted the Union and engaged in concerted activities 18 On the day of the strike, Clint Conrad, one of the respondent's vice-presidents, and a major account executive, sent the following telegram to all striking shoe department employees : MEET ME TEN O'CLOCK TOMORROW WEDNESDAY MORNING ROOM 502 DRAKE HOTEL. URGENT. This record discloses that as early as April 1945, Adams, on behalf of the Union, had raised with the respondent the dissatisfaction of the shoe artists with their vacation schedule. Sometime prior to the strike, Joseph Vrba, a union member acting as representative of the shoe department, dealt with Conrad in an effort to compose their differences. Adams knew of these negotiations and offered to intercede with the respondent, but Vrba said the shoe artists would study the proposals and thereafter Adams was kept informed of developments by Vrba. At this time, shoe artists received a 10-week vacation, being paid for 6 weeks. The proposed plan worked out between Conrad and Vrba provided that the shoe artists work 46 weeks at established rates, 4 weeks at double time pro-rated over 1e Isaac M Mills, the respondent's attorney, testified that on August 31, 1945, Adams told Dungan in Mills' presence that Adams wanted "all of the men in 441 to join the Union " Neither Dungan nor Adams testified concerning any such meeting Dungan placed his next meeting with Adams following August 29, as occurring on September 12, 1945, at which Mills was not present In the undersigned's opinion, Mills was in error on both the date and substance of the meeting. 11 There was no issue over the contract and there can be no justifiable finding that on August 31 or at any time prior to the effective date of the strike, the respondent had refused to bargain with the Union. 18 Three employees named in the complaint were thereafter reinstated : Fred Chadde, November 19, 1945; Warren Corneau, January 17, 1946; and Charles Schwiedergoll, Octo- ber 12, 1945 798 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD the year, and with 2 weeks paid vacation This was the verbal agreement but never effectuated or put in writing before the strike. According to Vrba's uncon- tradicted and credible testimony, the agreement also provided that the shoe deal was "all in accordance with union rules and regulations," presumably to accord with the contract then being negotiated between respondent and the Union. At the hearing, the respondent introduced in evidence a typed unsigned copy of a document embodying this understanding dated September 6, 1945. Although Conrad testified he prepared the document before September 6, he could not account for that date, nor is there any evidence that the particular document or a copy thereof was ever exhibited to any of the shoe artists or to the Union1° After sending the telegram mentioned above, Conrad met about September 5 with employees Gunderson, Frantz, and Herrick at the Drake Hotel. Accord- ing to Conrad, little developed at the meeting due to poor response to the tele- gram, except that the three employees indicated a desire to return to work under the new agreement provided the rest of the shoe department employees also returned. Conrad suggested therefore that Herrick arrange another meeting at which Vrba would be present. Later a meeting was held at Martini's restaurant attended by Vrba, Herrick, Conrad, and McWilliams. Conrad testified the agree- ment was discussed without "specific conclusion" and no threats or inducement were made to the employees. The undersigned finds, based on Vrba's testimony, however, that the conversation "summed up to one thing. They couldn't under- stand why the shoe department was still out on strike," in view of the agreement "that everybody was happy that there was absolutely no reason why the shoe department should be out on the street." The respondent's representatives stated that Adams had taken "the contract out of Dungan's hand when he was ready to sign" and that in their opinion Adams was "misrepresenting" the employees and "that he did wrong." Vrba was further told the shoe contract was ready to sign-"that we could come right back to work and everything would be all settled as far as we were concerned " But Vrba replied that he "didn't think the contract was any good without the union being in existence." On September 5 or 6, Adams protested to Good that McWilliams and Conrad were contacting strikers in person, by telegram and telephone, appealing to them to abandon the strike and negotiating directly with strikers rather than with him. Good replied that he was still the authorized bargaining agent, not having been discharged, and that he would investigate the complaint. Nonetheless, the respondent's officials continued their efforts to have strikers abandon the Union and return to work. The principal participants in these efforts were Conrad and Schuth. Early in the strike, Orville Lamberg, foreman of the lettering department, arranged a restaurant meeting between Conrad and Hans Bittner, one of the strikers. Bittner testified that Conrad and Lamberg asked him to return to work and be one of a nucleus of "fifteen fellows that they could go along with, . . . to hold up the organization." He testified also that in the same con- ference lie was promised a weekly raise of $10. Bittner replied that he would not "walk out on" his union friends. One week later, again as the result of a phone call from Lamberg, Bittner, according to his testimony, conferred at the studios with Dungan, Schuth, Conrad, and McWilliams. On this occasion, McWilliams offered to reimburse Bittner for the time he had spent on strike. Dungan urged Bittner to return and "be one of the fifteen fellows to start work, because they figured they could get the thing going with that fifteen fellows." 1 Adams testified he first saw the exhibit at the hearing. He denied discussing the subject matter of the exhibit with Conrad, as the latter had testified. VOGUE-WRIGHT STUDIOS, INC. - 799 Bittner never returned to work after the strike and is not named in the com- plaint, having found other work "immediately." Lamberg, the intermediary in arranging the above meetings, for it is clear that the meetings were held, and it is so found, did not testify. Dungan was not questioned concerning Bittner's meeting. He testified generally as to the re- spondent's actions during the strike as follows: Q. (By Mr. Ackerberg) And was it not the policy of the company during the strike to get a key staff to keep the place operating? A. Well, I don't know just what you mean by that. Q What I mean is that the officials of the company did go out after key men on strike to get them back to work so that the commitments of the company would be met with its customers? A. Well, we were interested in getting anybody back that we could. We needed them. Q. And in pursuance of that policy, steps were taken to invite some of the key men back, is that correct? A. Well, we tried to get anybody we could back. Q. And you went after them and notified and asked them to come back in some cases? A. Yes. Q And you did this without getting the permission of Mr. Adams, is that correct? A. Well, we had a strike. We had to get our work out. Q What I mean to ask is that: You did not consult Mr. Adams about inviting these employees back during the strike? A. No. Q. And to your knowledge, Mr. Dungan, if you know, raises were given to some of these employees who came back during the strike? A. You mean subsequently? Q. After they got back to work raises were given? A. There may have been, yes. McWilliams denied his presence at any meeting with Bittner and denied also that any management representative in his presence ever offered any in- ducement or made any threat to prevail upon an employee to return to work. Schuth, like Dungan, did not testify concerning the studio meeting with Bittner. Conrad, however, fixed both meetings with Bittner. As to the restau- rant meet'ng, Conrad testified that Bittner was "very upset, very confused" and Conrad asked him if he wanted to return to work. Bittner replied he did but was reluctant to do so unless he was one of a larger group. Bittner also claimed he was underpaid to which Conrad answered that if Bittner returned, Conrad would investigate the complaint, and if true, Bittner's salary would be raised. Conrad denied Bittner's testimony about the 15-man nucleus, his offer to grant Bittner a $10 raise or any other inducement. Conrad did not explain his presence at the meeting. Hence, Bittner's testimony that it was arranged by Foreman Lamberg, consistent as it is with Dungan's admissions that the respondent was endeavoring to get strikers to return, is accepted and found to be the fact. This being so, it would.seem quite clear that Conrad in further- ance of the respondent's policy met with Bittner to induce him to return to work. The undersigned credits Bittner's testimony and finds that Conrad did offer Bittner a wage increase if he would return to work. 800 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - As to the latter meeting in the studio, Conrad acknowledged his presence there with Bittner, but testified that he did not think anyone else was present during the entire conversation. Conrad testified it was a general conversation and nothing specific was discussed relating to the strike. All Conrad could recall was that Bittner "was still very upset" ; could not determine whether to return to work, look for another job or wait; and Conrad sought "to sooth him or pacify him." Conrad could recall nothing about Bittner becoming part of a 15-man team and denied any offer was made to pay him for time lost on strike. Here too, Conrad made no effort to explain the origin of the meeting. Bittner had found work immediately after the strike started, hence his presence can only be accounted for, as he explained, as a result of Lamberg's arrangements. If this be so, it seems unrealistic that Conrad, who had no personal contact with Bittner, should devote himself to a "casual conversation" in an effort to "sooth and pacify" him. Conrad's explanation and testimony is rejected and it is found that at this second meeting Conrad continued his efforts to induce Bittner to return to work 2° Arthur Lebbin, an artist in the men's fashion department, went on strike on September 4. During the course of the strike, Russell Erickson, another striking artist, who later became a delegate to the Council, invited Lebbin and employee Louis Tawada to attend a dinner with McWilliams. McWilliams stated he would like to have the "boys" back; that he had "something in mind" but that definite promises could not be made at the time.21 On a later occasion, arrangements were made for Lebbin to have dinner with Conrad. This was upset and other circum- stances led finally to a golf match between Schuth, Lebbiu, Tawada, and Erickson followed by a round of drinks. Schuth told his golfing companions that although he could not say anything at the moment, he would like to have "the golfing strikers" return to work. Moffatte D. Walker, a shoe artist, received a telegram from the respondent, and about September 8 Conrad telephoned Walker asking him to return to work Walker replied that he was waiting for the new contract to be signed. About September 24, Walker met Conrad in his office, a result of a chance meeting previously with Conrad. Walker testified that three or four company executives were present and at least one other striking employee. Conrad stated that the shoe artists were foolish to be on strike ; their gesture was only sympathetic ; and no reason existed for them not to return to work in view of the new and favorable shoe department agreement . Some company official stated that the strike was caused by the fact that the Union wanted a "certain number of fellows" in the Union, which Walker interpreted to mean a closed shop. The Union meets with Dungan About September 11, Adams and a committee of union representatives met with Dungan at the studio. Rather than attempt to paraphrase the testimony, the testimony of Adams and Dungan is set forth in full. Adams testified : Q. (By Mr. Ackerberg.) What was said at the meeting? A. Well, I told Mr. Dungan that this contract was being held up by him and the other studios who would sign it jointly with him to work together were high pressuring me to get that contract through. They wanted a con- tract signed and over with, and I said, "What are we going to do about this Y0 Moreover, the undersigned found Bittner to be both a credible and convincing witness zi Findings based on Lebbin's testimony, undenied by McWilliams except to the extent heretofore indicated that he never offered any striker any inducement to return to wok VOGUE-WRIGHT STUDIOS, INC. 801 thing?" Well, he says, "Things are definite now." He said, "Since the strike there will be no union shop, there will be no maintenance clause, all there will be now is an open shop and we start over from scratch." I said, "Do you mean that we are going to have to give up all that we had gained and give up what the War Labor Board has given us." He says, "I am not concerned with that at all." He says, "We have got to have a new contract if we are going to have one at all, and it will not embody the union shop or the closed shop or the maintenance of membership." And I told him that Berlet- Anderson and Commercial Illustrators were agreed upon a contract that embodied all these things and we couldn't very well upset those people and all the employees. "Well," he says, "I am not concerned with anybody else, only with Vogue- Wright Studios." I said, "Am I supposed to take it that we can't have any ditlerent terms than the open shop and we are to relinquish everything'?" He says, "That is right, it will be that kind of it contract or none whatever " I said, "That doesn't give us any choice I wouldn't consider that bargaining if it is all going to be one sided." Well, he says, "It doesn't make any rlit- lerence to me what you consider it. That is the way it is. There will be no closed shop, there will be no maintenance of membership and there will be no union shop around here any more " I said, "In that case, we haven't any more to talk about" and we all left .12 Dungan's account was given from a memorandum that lie had prepared following the meeting. He testified : Well, this committee wanted to know what the status of the company was with regard to the strike, where we stood, and I explained as carefully as I could the events that led up to the strike and the meeting with Mr Good and that we expected the contract to be signed when we got these tour men in and that the next day the contract wasn't signed and Mr. Good advised me that the reason it wasn't signed was because Mr. Adams told him that he now wanted all of the photographers in our 441 gallery in the union on account of the fact that one of our men had said something to some member of the organization over in that gallery to the effect that they didn't have to join the union, something to that effect, you see, but we had thought that the contract was going to be signed and then it wasn't, there was no way that we could influence those other people into the union, and that we now, since there was a strike, since the contract had terminated, that we had now planned to go ahead and operate the business the best we could with the people we could get and we would be glad to take everybody in, union or non-union, we had no objections from that point of view, and from now on that is the way we were going to operate the business Well, I explained to these men that we had no objection to the union, or whether they belonged to the union, and that we would be glad to bargain with them collectively on any points, . . . Dungan testified further : Q. (By Mr. Adams ) . On September 12th you state we niet with you and you agreed to bargain with us and to allow the people to come back to work while we discussed an agreement. s Plummer corroborates Ad,uns He testified briefly t lout Dungan "gave us to under stand that anvtlnng that we had in the old contract wraa out, and that we would have to start from sci atcli on a neiv coil-tract" on the respondent s terrna 802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Did you say that you would discuss and bargain on the closed shop issue? A. I said I would bargain on any issue. Q. Did you say that you would not bargain on the maintenance clause and the union shop issue? A. No. * * Q. Did you insist that we should have an open shop from there on in? A. I didn't insist on anything. I said in that meeting that from then on we were going to hire people that we needed to turn that work out, whether they belonged to the union or not. We would not discriminate against any- one. We wanted all the union people we had jobs for back. Q. You said that you would- A. That was my statement. Q. You said that you would hire people on the open shop basis, is that what you said? A. I didn't say anything about open shop or closed shop. Q. Did you say that you would hire them under the maintenance clause that we had in the past agreement? A. I didn't say anything about any of those agreements. I merely said that we would take anybody we could to get that work out, and we had no objection to taking back all the union people that we had jobs for. Kenneth Hoopes who attended the meeting testified that Dungan stated "the boys" could join or not join the Union ; that he referred to "starting from scratch" but "not exactly in those words." Vrba, the other Board witness who testified concerning this meeting, stated that Dungan remarked that he was ready to sign a contract and "that occurrence happened" ; all strikers could return but if they did not "he would have to do about the best he could with what he had"; he was willing to deal with the Union and that he would "have to start over with the people he had left and bring in as many new people as he could . . This conflict is considered again hereafter and resolved in the portion of this report dealing with conclusions respecting the refusal to bargain. About September 17, Dungan called all of the respondent's employees wh,) were at work, to a meeting in the main studio. Addressing the employees, Dungan stated that the respondent had bargained with the Union and was will- ing to sign the contract; that the Union's last demand to have five mechanical artists join the Union had been met ; but the Union refused to sign after these men joined the Union and Dungan could no longer deal with the Union since it now demanded that a number of photographers join before signing; that under these circumstances the respondent could not bargain with the Union for it could not be depended upon and that the respondent would make a "go of it" with its remaining employees The respondent's efforts to break the strike during the forepart of September had not been too successful. This was particularly true among the artists in the men's fashion and shoe departments. About September 19, a group of strikers, mostly from the men's fashion department, were at the union office when they decided to go to "Kathy's place and talk the thing over." After "talking things over" the group telephoned and invited Dungan and McWilliams to their meet- 23 Findings in paragraph above based upon uncontroverted credible testimony of Donald Olds. Olds did not go on strike and never joined the Union. VOGUE-WRIGHT STUDIOS, INC. 803 ing. Upon their arrival, they were asked what they had to offer the strikers. Dungan answered that he would like to have them return to work. The strik- ers asked reimbursement for the time lost on strike, which was refused, and they asked for wage increases. On this latter score, according to Dungan, they were told that if after returning, they felt they were underpaid, the matter could be taken up with McWilliams on a merit basis. Dungan and McWilliams left the meeting, while the strikers debated the issue ; were thereupon recalled and then informed that it had been decided to return. Nine fashion artists returned to work the next day. Although at the hearing Dungan testified he made no commitment to raise wages, as an inducement to the strikers to return to work, pay-roll data supplied by the respondent and introduced in evidence indicates clearly that on September 20, the nine fashion artists were granted weekly wage inci eases varying in amount of from $5 20 to $13 20. If these were merit increases bearing no relationship to the meeting with Dungan, it is strik- ingly coincidental that strikers who were refused an increase as an inducement, were without exception granted their requests the first day they returned to work. The Union was not consulted about this increase. Further bargaining conferences On September 20, Adams signed a joint contract with Good representing Com- mercial Illustrators, Inc. and Berlet-Anderson-Marlin, Inc. This latter con- tract is, according to Adams, identical with the agreement reached with the respondent on August 31, 1945, except for this single paragraph : If during the life of this contract another contract is signed with any other studio we will automatically benefit by any terms that would give our competitors any advantage over this agreement. The Union had filed charges under Section 8 (1) and (5) of the Act on Sep- tember 10, 1945. About September 22, Adams conferred with Mills at the respondent's studio and asked to resume negotiations. Mills proposed that they proceed on the basis of terms outlined by Dungan in his remarks to the . Union committee on September 11. Adams indicated that they were "pretty much one-sided" and would mean relinquishing gains of many years together with War Labor Board awards. Adams asked Mills to get up another offer and then left. On September 26, the Union and respondent entered into the Settle- ment Agreement heretofore referred to Mills testified that he held a number of meetings with Adams prior to this date. Adams, however, could not recall these meet,ngs, other than that of September 22, placing his next conference with Mills, following the Settlement, as occurring on October 3. Mills was inexact about the dates of his various conferences with Adams, but he placed his first meeting as happening "two or three weeks after the strilie," presumably the one which Adams fixed as being held September 22. According to Mills, at this conference he urged Adams to send the men back to work, which Adams refused to do, while negotiations continued, asked the Union to sign the con- tract agreed on; but that Adams now wanted the photographers at 441 studio to join the Union. Mills continued that this in substance was again repeated in other talks with Adams, some before a Federal Conciliator on other dates, but that Adams would not modify the original agreement, "which was the agreement he signed with the other two studios, because of a clause in the agreement with the other two studios that whatever additional benefits were gotten by the Vogue-Wright or any competitor would have to be given to these 781302-48-vol. 76-52 804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other two studios." Mills answered, so lie testified , that the respondent "couldn't make the contract that the competitors had" but one agreeable to the respondent and the Union. Mill's testimony produces this conflict: first he asked that Adams sign the "contract which was agreed on " but when Adams indicated that was what he desired, Mills according to his own testimony indicated that the respondent would not now sign this contract . Irrespective of reasons which foreclosed signing of the agreement on August 31, Adams on September 22 was willing to sign the contract . He could do no less , for it is recalled that on September 20 he had entered into agreements with the respondent 's two competitors embodying these terms , and anything less favorable which Ile now signed with the respondent would upset the contracts with the two competitors. It is impossible for the undersigned to reconcile the respective versions of the con- ference of September 22. Adams' testimony was specific and confined to the dis- cussion of that (late Mills lumped together a number of meetings he had with Adams , alone , and in the presence of a Federal Conciliator. Taken as a whole, this picture emerges, which repiesents at this stage the bargaining his- tor,i-Adalns was now ready to sign the contract , in fact he could not accept less, in order to preserve the working conditions and teens he had secured from Commercial Illustrators and Berlet-Anderson-Marlin, Inc . Mills , however, was insisting on more favorable terms for as he put it, "we couldn' t make the con- tract that the competitors had " Hence, Adams' request of Mills to get up another set of proposals. The conference of October 3, 1940 Negotiations continued after the Settlement of September 20, which did not dispose of the strike issues. Under its terms the respondent agreed not to interfere with the rights of its employees to join or not join a union and to bargain collectively with the employees' representative Adams and Phu imer met with Mills in Good's office on October 3, 1945. Theteat, Mills submitted a counter-otter in the nature of four clauses which he proposed to be substituted for like numbered clauses in the then existing competitors' con- tract. Mills testified that lie prepared "certain paragraphs, which if they replaced the paragraphs with the same numbers in the contract, or substantially, the con- tract . . . , would make an agreement that I felt certain Vogue-Wright would sign, . . ." The first proposed substitute clause continued sole recognition of the Union but simply reduced the employees covered by the unit. The second clause eliminated the modified form of union shop which had been in the last contract as well its the check-ott, both of which were now it part of the competi- tors' contract" The third clause increased the number of apprentices. The last clause proposed 30 days' written notice of intention to change terms of the con- tract , that no strike or lockout occur dining the life of the contract or for 72 hours after impasse in negotiations; that no strike could be called without a secret vote and any employee absenting himself during negotiations without a strike vote and appropriate notice could be deemed to have violated the contract Concerning this last, the only real change herein suggested was the provision for the secret strike ballot. Ad:nns could not accept the proposals for it not only meant dropping substantial achievements such as the union shop and check-otl, previously agreed upon. but it meant as well, a Wholesale Ievisioii of the existing competitors' contract. "In this connection, Good testified that Dungan had agreed prior to August 31, 1945, to the check-off provisions and it "was already a part of the contract " VOGUE-WRIGHT STUDIOS, INC. 805 The parties then took up the matter of reinstating the strikers pending con- tinued' negotiations. Adams and Plummer understood Mills to say that all strikers would be reinstated, and those for whom no places were immediately available, would be put back to work by the end of the pay-roll week, discharging replacements if necessary to make this possible.22 However, Mills testified that he stated that not all strikers would be rehired since some jobs had been filled but that the strikers should return to see McWilliams who would fill all vacancies "and that as soon as the openings occur for the others, the others would be taken on," As a result of the discussion, Mills was told the Union would advise all strikers to return to work the next day, October 4 Mills denied that he told Adams that at the end of the pay-roll week, the respondent would "put every- body on." This latter testimony of Mills is credited and it is so found. The strikers returned to the plant October 4 Adams and Plummer were closeted with McWilliams, while from 30 to 35 strikers stood outside the office. Adams said that all strikers had returned as "Mr. Mills had requested." First McWilliams and then Dungan, who entered later, stated that vacancies would be filled, that all of the striking shoe artists would be reinstated, but as to the others, their places having been filled, they could not be reinstated. Adams then informed the waiting strikers of this decision.26 Shoe department artists were reinstated that clay and were immediately granted the weekly wage adjustment called for in the verbal agreement worked out before the strike A general 15- percent wage increase was granted unilaterally to all employees about this same ti rue. Mills and Adams met again on October 6. Adams wanted to talk about the union shop, maintenance of membership and apprentice clauses but Mills would not consider any modifications in the proposed substitute clauses submitted on October 3. Adams was agreeable to acceptance of the suggestion that the Union hold a strike ballot before going on strike but he testified : "We got nowhere." On October 15, a Federal Conciliator suggested that Mills sign the same contract as executed by the respondent's competitors, indicating that unless this was done the other agreements would be disturbed. But Mills was adamant, in- sisting that the respondent would not sign a contract containing union shop or maintenance of membership clauses. Mills suggested that Adams "forget" the question of negotiations for about 6 months at the end of which Dungan "would be feeling different and be in a mood to negotiate." 27 On December 31, 1945, Adams wrote Dungan, recalling Mills' suggestion to drop negotiations for 6 months, stating that there was no good reason why negotiations should not be resumed and asking that this be done. In reply, Mills and Adams met on January 7, 1946. Adams sought concessions in the four contract clauses referred to above but Mills would not consider any change. This was the final meeting between the parties 28 Conclusions respecting the refusal to bargain collectively in good faith are set forth hereafter in Section D of this report. - 27 Kersten reported for work October 4, as the result of what Plummer told him, i. e , that an agreement had been made "That the boys were supposed to go back to work that day" 26 Individual strikers who testified that they applied for reinstatement and were not recalled that day were : Plummer, Kersten, Point, Kinczyk, Richardson, Comeau, Schweid- eraoll, Chadde, Hiorth, and Siok. Adams identified as being present in addition: Baroff, Fehr, Krasmski, Magnmis, Stiess, and Zack All are named in the complaint. 27 Mills denied any such statement. He admitted, however, that "there was a lot of feeling around and that it would be better, to wait a little while . . . -s Charges on which the instant complaint is based were filed December 11, 1945. 806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. The Progress Council The complaint alleges that on or about November 20, 1945, the respondent formed the Council, and has at all times dominated and interfered with its administration and has contributed financial and other support thereto. The facts concerning the origin and history of the Council are not in essential conflict. For some time previous to November 1945, the respondent held departmental supervisors' meetings devoted to a discussion of work procedures and art methods. These meetings were called Monday meetings. On occasion employees, as distinguished from supervisors, were invited to attend Monday meetings. In the early fall of 1945, it was decided to enlarge the circle of employees in attendance and continue staff meetings on other occasions. The first meeting, designated as a Council meeting, as distinguished from the Monday meetings, was held on November 6, 1945, attended by 12 employees, McWilliams and Conrad. Donald Olds who attended the first meeting was elected to represent the photographic department. Each other department was likewise represented. Olds testified that : "it was the duty of each representative to go to the men in his department and find out what was bothering the men in the department or what suggestions they had for improvement of working conditions, or any- thing that would tend towards a happier relation between the employee and the employer." McWilliams called this and later meetings, fixed the dates, and presided as chairman Meetings were held on company time and employees were paid for time spent in attendance. Other supervisors did not attend unless invited to do so. Although McWilliams sought to establish the fact that the Council concerned itself with a discussion of industry problems and the achievement of better production methods and techniques, this-was by no means the exclusive function of the Council. For it is clear from the testimony of witnesses and documentary evidence that the Council also considered working conditions and its employee delegates acted to secure better conditions of employment. For example, Russell Erickson, the elected representative from the men's fashion department, some time after the strike interceded with McWilliams to secure a wage raise for Kenneth Hoopes. He likewise handled the departmental "gripes." 29 While Olds acted as departmental representative he "brought suggestions and griev- ances" to the Council meetings. At the second Council meeting on November 20, 1945, it was decided that representatives were to serve terms of 6 months and be eligible for re-election. Matters discussed included better lighting; employees' photographic waiting time; care of merchandise; rubber cement ; condition of a drinking fountain ; and it was suggested that "individual and departmental problems" were to be handled in special meetings but that Council meetings should be concerned with "general problems affecting the entire company and personnel." Minutes of other meetings disclose discussion of increased hospitalization and sick bene- fits and a central radio system to eliminate individual radios with their con- current cacophony 3° 27 Hoopes testified that Erickson was elected "to take care of any little thing that went wrong, any gripes about the studio . . . Mr Erickson's job was to see that things were taken care of for the men . . . if any fellow thought he was being discriminated against he was to take care of those things." 30 The respondent established a gripe box in 1944 , which thereafter served as the deposi- tory for many "suggestions" which were later discussed at Council meetings. VOGUE-WRIGHT STUDIOS, INC. 807 This meagre presentation of facts does not establish the Council as a fully developed labor organization. The facts do establish, however, that the Council functions in part as a labor organization. Indicia of support and domination are present plus the fact that the Council or its members consider employee grievances, wages and other conditions of work Particularly significant in the undersigned's opinion is the timing in con- nection with the Council's appearance. Bargaining negotiations between the Union and the respondent had been fruitless, no contract governing conditions of work had been concluded and a strike had started and ceased with many employees still being denied reinstatement In this setting, the respondent created an or- ganization of employee representatives. At the first and subsequent meetings, the respondent's vice-president and general manager presided. Meetings were held at his call and under his guidance. Departmental delegates to the Council were elected on company time and paid for their attendance at meetings. Employ- ees viewed the representative's job to be that of adjusting grievances as in fact it was Council minutes were published in the respondent's house organ This 'N That and thereby distributed to all employees for their perusal of the Council's ac- complishments. The undersigned is neither satisfied nor convinced that the Council's "gripe box" coloration was merely incidental to some other primary function such as considering ways to enable the respondent to "stay ahead of com- petition." The Council was in fact an employee representation committee, in which emploj ees participated and which existed in whole or in part for the purpose of dealing with the respondent concerning grievances and other condi- tions of work. By reason of the foregoing findings, the undersigned is of the opinion and therefore finds that the respondent has dominated and interfered with the formation and administration of, and has contributed support to, the Council, within the meaning of Section 8 (2) of the Act" D. Conclusions respecting the refusal to bargain and reinstate sti iking employees The complaint alleges a refusal to bargain in the following particulars: (a) individual solicitation of strikers to return to work; (b) unilateral offer of wage increases to strikers to return and granting increases after return of the employees; (c) instituting changes in working conditions after August 29, 1945, with- out consulting the Union; (d) stating that the respondent would operate only on the basis of an open shop ; and (e) establishing and maintaining the Council as a successor to the Union. The Settlement Agreement of September 26, 1945, entered into between the parties and approved by the Board's Regional Director, sought to dispose of certain issues in this case. It did not dispose of the strike issue and for reasons not apparent in this record it did not undertake to restore the status existing before the strike. This is significant, for in the undersigned's theory of the forces that motivated the parties thereafter, the strike issue cannot be dismissed. Out of it arose the respondent's determination to continue its production and the Union's to obtain a new contract and reinstatement for its members 'IN. L. R B v. Matthews & Co., 156 F (2d) 706 (C C. A 3), decided August 6, 1946, 18 L. R. R. 2264, Vol. 18, No. 31 ; Matter of J. W Greer Company, 52 N L R. B 1341, Matter of Julius Kayser & Co., 29 N. L. It. B. 1025. 808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Absent the Settlement Agreement , there is no question in the undersigned's opinion that the respondent 's conduct following September 4, 1945, prolonged the strike. Its first act was to make individual appeals to strikers to return to work. The respondent acknowledged this fact. It has been found above that wage increases were held out as a lure to induce strikers to return. The respondent contended , however , that any increases granted were deserved merit increases and in the case of the shoe department were granted because of commitments made before the strike . The wage increases may have been deserved-certainly this was part of the Union 's case and a bargainable issue upon which no final decision had been reached with the Union . But the strike did not impair the Union's position as collective bargaining agent and em- ployees' representative. It was as much entitled after , as before, the strike to be consulted on any term affecting working conditions, the more so, since the same conditions had been the subject of prolonged negotiations. The undersigned is of the opinion and finds that the solicitation of strikers to return to work ; the granting of unilateral wage increases during the pendency of the strike and while the Union continued to be the collective agent, were unfair labor practices , violative of the Act, and that thereby respondent pro- longed the strike and refused to bargain collectively with the Union. Were solicitation of strikers and granting of unilateral wage increases practices that ceased with the Settlement , the latter migh be held an effective disposal of part of the Board's complaint. The contrary is the case , however The unilateral weekly wage increases granted the shoe artists on September 27 and October 4 are clear demonstration of the respondent 's continued refusal to bargain with the Union Immediately on returning , the shoe artists were granted weekly wage raises and changes made in their conditions of work The agreement to fulfill these demands had been reached before the strike. However, individual solicitation of shoe artists bad not caused many to return. When the rest applied for reinstatement on October 4, they were all rehired and then put to work at increased wages, thus effectuating the agreement, again without consultation with the Union The union committee met with Dungan on September 11, and Adams and Mills met on September 2. Whatever doubt the undersigned entertained about Adams' testimony concerning those two meetings is dissipated by consideration of the meeting between Adams and Mills on October 3 On this latter occasion, Mills submitted his proposals to eliminate the union shop and check-off, all of which is consistent and lends color and emphasis to Adams' construction of Dungan's re- marks on September 11, and Mills' proposals on September 22. The strike had now bolstered the respondent's position. The Union was ready to sign the contract agreed to on August 31, but the respondent , enriched by reason of intervening unfair labor practices , such as individual solicitation and unilateral wage in- creases to key operators , was now in production and, the undersigned believes, felt under no compulsion to renew that contract but rather to "start from scratch," I. e., eliminate the union shop and check-off. In view of the Union's contract with respondent's competitors and the more favored" clause, respondent knew that Adams could not sign any contract other than the one previously-agreed to n The respondent's unyielding opposition to change of its proposals exhibited on October 3, persisted in thereafter leads the undersigned to the conclusion that the respond- ent was willing to confer but would not bargain about maintenance of membership 84 The question arises whether the respondent did not jointly bind itself with its competi- tors to sign this contract by its designation of Good to "negotiate our contracts at one time." VOGUE-WRIGHT STUDIOS, INC. 809 or the check-off This went so far as to result in Mills' suggestion that negotiations be "forgotten" for 6 months or until Dungan was in a "mood to negotiate." But conclusions respecting the respondent's refusal to bargain need not rest entirely on the course of conduct in bargaining negotiations after September 26, or the granting of wage increases independently of union concurrence. There is, moreover, the additional factor that while fruitless bargaining negotiations pro- ceeded, the respondent established a labor organization, which acted in part on employee grievances and other terms and conditions of work. Whether the re- spondent hoped, as Counsel for the Board suggests in his brief, that thereby would be created an organization that might eventually replace the Union is not clear. Ceitainly it had not progressed to that stature at the time of the hearing. Clearly, however, it was a labor organization of a kind barred by the Act and the under- signed has so found. Thus, the undersigned is of the opinion that on the basis of the record as a whole and particularly because of unilateral wage increases granted after September 26; the intention expressed prior to September 26 not to grant a union shop, and evidenced after September 26 by the respondent's unyielding opposition to the maintenance of membership and check-off clauses [concession previously granted according to Good] ; formation of the Council and domination and interference in its administration ; the respondent thereby refused to bargain collectively with the Union The respondent's unfair labor practices occurring both before and after the Settlement Agreement represent a continuous course of conduct. The respond- ent having violated the Settlement Agreement after September 26, 1945, the said Agreement cannot be considered an effective and binding disposal of the matters covered therein 33 In the undersigned's opinion, the strike of September 4 was caused by the respondent's unfair labor practices as found above. Assuming, however, this not to be the case, the undersigned would and does find that the strike was prolonged and enlarged, becoming an unfair labor practice strike thereafter, by reason of the respondent's commission of later unfair labor prac- tices as found above. Where unfair labor practices prolong a strike, then the employer's "right to select its employees became vulnerable " There is ample judicial support for the point that where a strike has been called for a reason other than an unfair labor practice on the part of the employer, if the employer there- after during the strike violates the Act with respect to the striking employees, the Board may require reinstatement of the striking employees, although this necessi- tates the discharge of all persons hired after the date of the unfair labor prac- tices" All of the striking employees named in the complaint applied collectively for reinstatement on October 4, 1945 Reinstatement was denied on that date. Thereafter and on various dates certain of the named employees made individual applications for reinstatement. The undersigned is of the opinion and finds that the striking employees named in the complaint were on October 4, 1945. denied reinstatement for the reason, among others, that they jowled the Union and had engaged in concerted activity, to wit, the strike of September 4, 1945, and that the denial of reinstate- 13 Matter of Taylor-Colquitt Company, 47 N L R R 225, 242, and cases cited therein. 84 Black Diamond S S. Corp v. N . L. R. B., 94 F. (2d) 875 (C C. A. 2), 304 U. S 579, cert denied ; Jeffery-DeWitt Insulator Co. v. N. L. It. B., 91 F. (2d) 134 (C C A 4), 302 U S 731. cert denied; N L. R. B v Carlisle Lunihei Co., 94 F (2d) 138 (C C A 9), 304 U S. 575, cert denied, Birmingham Post Co. v. N. L. It. B., 140 F. (2d) 638 (C C A. 5) , N L. R B v Lettie Lee, Inc , 140 F (2d) 243 (C (` A 9) 810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment was therefore discriminatory within the meaning of Section 8 ( 3) of the Act. E. The independent discharge of Horton and Hoopes The complaint alleges the discriminatory discharge of William Horton on March 21, 1946, and of Kenneth Hoopes on April 13, 1946, and thereafter a refusal to reinstate each of them for the reason that they joined and assisted the Union and engaged in concerted activities. 1. William Horton Horton is a fashion artist who was employed previous to discharge for a period of about 13 years by the respondent. Between 1937 and 1942, Horton worked in Canada on a job which the respondent procured for him. On his return to the States respondent rehired him. Horton did styling of figures in sketching off-figure garments such as dress shirts and jackets. His art director and supervisor was Edward Newhouse. Horton testified that Newhouse never complained about his work McWilliams, however, expressed the opinion that Horton's work was inferior to the general run of good art work and testified that he had complained of his work to New- house. Newhouse testified that Horton's ability was fair but that he was resentful of criticism despite efforts to help him. He also testified that in the period between 1942 and 1946 other employees complained about Horton's work. Lebbin, Horton 's co-worker, expressed the opinion that his work was "all right" and Emil Steininger stated that his work was "very good." Horton was a union member and went on strike in September 1945. His union activities and interests were known to the respondent for he refused Newhouse's request to work overtime on one occasion because it conflicted with a union meeting. Horton retui ned to work for the respondent in October 1945, after the strike, following an invitation from Newhouse to Horton to return. At this time, due to crowded conditions of work, Horton instead of returning to his former work desk was transferred to another floor where facilities such as light and heat were less favorable Both before and after Horton's return to work he conversed with other employees about the affairs of the Union One of the subjects discussed was the weekly wage increase granted all men's fashion artists on their return during the strike. Horton, however, after his return was not granted a wage raise Sometime in March 1946, Newhouse told Horton to report to McWilliams. On doing so, McWilliams told Horton that-he regretted the necessity for doing so, but orders had been issued that Horton was to be "dropped." Horton asked "Why" and McWilliams answered- "Well, to be frank about it, you have been slipping." According to Horton's own testimony, he acknowledged this to be the fact stating in reply: "Yes, that is right Mack, ever since I came back from the strike I have been slipping, I will admit that, but just what pages were they?" A discussion then ensued about-"a couple of shirt pages" which McWilliams asserted were faulty. The respondent asserts its discharge of Horton is justified because it was not able to give him enough work which he was capable of doing "to keep him busy" and there was too much "non-productive time" on his work sheets. New- house told management there was not enough work to keep Horton fully oc- cupied. He denied that this was due in any part to Horton's union membership. The undersigned is satisfied after consideration of all testimony relating to Hor- ton's case that he was not discharged because of his union membership On VOGUE-WRIGHT STUDIOS, INC. 811 his own admission, his work has suffered and presented reasonable grounds for dismissal. Counsel for the Board asserts that factors such as Horton's union activ- ities ; his refusal to work on the night of a union meeting ; his transfer to a less favorable working place ; the respondent's failure to specify precisely and in detail how Horton's work suffered, lead to the inference of discrimination. However, in view of Horton's significant admission that the quality of his work had retrogressed, and the fact that the respondent knew of Horton's union activities when recalling him after the strike, reason for coming to a contrary, and just as proper inference, exists. Finally, and as persuasive, was Horton's failure to impress the undersigned as one who was distinguished by either the quantity or quality of his union activities, or who by reason therefore would be the object of discrimination. The undersigned concludes and finds that Horton was not discharge by reason of his union membership or concerted activities and it will be recommended hereafter, that the portion of the complaint so alleging, be dismissed. 2. Kenneth Hoopes Counsel for the Board in his brief characterizes this as a "more difficult and humorous" case. Hoopes is a fashion artist whose employment with the re- spondent covers a total of about 18 years. His work in the men's fashion depart- ment was to sketch textures of men's garments such as shirts and sweaters. There is no dispute concerning the quality of his work, all witnesses acknowledging that Hoopes is a competent artist. The respondent gave as its reason for Hoopes' discharge the fact that "he persistently after many warnings continued to come late to work." It would be satisfied to continue him in employment, "if he comes on tune." Hoopes was an active union member. He went on strike in September 1945. Before this he had been shop chairman in the men's fashion department and acting shop chairman in the women's fashion department. He was a member of the Union committee interviewing Dungan on September 11, 1945. Hoopes returned to work about September 27, and was granted a weekly wage increase at this time after intercession of Erickson, the Council delegate. When the raise was granted, McWilliams called Hoopes to his office, told him he was getting the raise but warned him "to be down to work on time." This was not the first occasion on which Hoopes had been warned of his failing in this regard for McWilliams had raised this point "several times" before the strike. When asked for how long a period he had been lax in coming to work on time, Hoopes answered : "It was a great many years but I think I was getting worse lately." In April 1946, the respondent found it impossible to regulate Hoopes' work. McWilliams decided to discharge Hoopes, telling him that Hoopes would be hap- pier working as a free lance in some studio where he could come and go as he pleased. About 3 weeks after his discharge, Hoopes was recalled and put to work on an hourly basis with a minimum guarantee of 10 weeks work during the busy season. Hoopes was employed at the time of the hearing, at an hourly rate higher than his hourly rate as a permanent employee. Hoopes acknowledged that he was told repeatedly that the respondent would continue him in permanent employment if he "would only come on time." There seems no reasonable basis on which it can be found, in view of Hoopes' record, that he was the object of discrimination for union activities. In January 1946, Hoopes was late in reporting for work on about 17 occasions. Counsel for the Board urges, however, that another employee with a comparably poor record for tardiness, one Bensing, was not discharged, after being late on 22 occasions 812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in the same month. One partial explanation for this advanced by the respondent was the fact that January was the slack season for Bensing, whereas Hoopes admittedly was tardy in and out of season and "getting worse." Moreover, granting an acquiescence in Hoopes' failing, the respondent was not required to continue to acquiesce indefinitely and a decision not to do so does not neces- sarily reflect anti-union motives. The undersigned, therefore, concludes and finds that Hoopes was not discharged because of his union membership or con- certed activities as charged in the complaint, and it will be recommended here- after that this portion of the complaint be dismissed. IV. THE EFFECT OF TIIE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section 111, above, occurring in connection with the operations of the respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has violated Section 8 (1), (2), (3), and (5) of the Act, the undersigned will recommend that it cease and desist therefrom and take certain affirmative action which the undersigned finds necessary to effectuate the policies of the Act It has been found that the respondent immediately after the strike occurred on September 4, 1945, undertook by individual appeal and the promise of weekly wage increases to induce the return of striking employees. This conduct was persisted in during the month of September and in numerous instances where em- ployees did return to work they were immediately granted wage increases. At no time was the Union consulted with respect to these matters, despite the fact that the Union had protested this conduct It was also found that on or about September 11, Dungan, in a conference with the union committee, indicated that the respondent would continue to exercise all of its resources to-continue its production and that any future bargaining would be on a new basis. The mean- ing of Dungan's remarks was substantially clarified in conferences between Mills and Adams on September 22, October 3, and again on October 6, when the respondent stated that any contract now signed with the Union would contain clauses eliminating provisions for the union shop and check-off. This repre- sented a complete reversal in policy, brought about by the strike of the Union, in view of Good's testimony that on August 31, 1945, and prior thereto Dungan had accepted the check-off. The undersigned has found that on October 4, respondent refused to reinstate a group of striking employees, although it did take back its shoe artists, some of whom had been previously solicited individually, and that thereafter they were immediately granted weekly wage raises. In November, the respondent domi- nated and interfered with the formation and administration of the Council and thereafter utilized the Council in part as a forum for presentation and discussion of grievances and other conditions of work pertaining to its employees. The undersigned found that the respondent's entire course of conduct in bargaining negotiations when viewed in relation to these practices, was clear evidence of its intention not to bargain collectively witli the Union. All of the above findings based upon a considered review of the entire record in this case, convince the undersigned that no recommendation not coextensive VOGUE-WRIGHT STUDIOS, INC. 813 with the respondent's unlawful conduct and with the threat of future violations, would satisfy the preventive purposes of the Act . This is so , despite testimony to the effect that the respondent has laid down a policy of neutrality and cau- tioned all of its supervisors not to interfere with any of the rights of its workers plus the fact that there is a history of collective bargaining between the Union and the respondent. The violations of the Act herein found, are sufficiently grave in the undersigned's opinion to warrant the recommendation that the respondent be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act.` The effect and consequences of the respondent's domination and interference with and support of the Council constitute a continuing obstacle to the free exercise by the employees of their right to self-organization and to bargain col- ]ectively through representatives of their own choosing Because of this the Council is incapable of serving the employees as a genuine collective bargaining agency. Accordingly , the undersigned will recommend that the respondent dis- establish the Council as the representative of any if its employees for the purposes of dealing with it concerning grievances , labor disputes , wages, rates of pay, hours of employment, or other conditions of employment. The undersigned found that the respondent discriminated regarding the hire and tenure of employment of the employees named in "Appendix A," attached hereto. The undersigned will accordingly recommend that the respondent offer all of the employees named in "Appendix A" immediate and full reinstatement to their former or substantially equivalent positions" without prejudice to their seniority or other rights and privileges. The undersigned further recommends that the respondent make them whole for any loss of pay they may have suf- fered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of the offer of reinstate- ment less his net earnings " during the said period. Reinstatement shall be effected in the following manner: The undersigned recommends that the respondent be required to displace employees by tianster or otherwise who have succeeded to the former positions of any of these em- ployees. Further, all employees hired on and after September 4, 1945, for this same or substantially equivalent positions, shall, if necessary to provide em- ployment to the persons to be offered reinstatement, be dismissed If, even after this is done, there is not by reason of a reduction of force of employees needed sufficient employment immediately available for the remaining employees, including those to be offered reinstatement, all available positions shall be dis- tributed among remaining employees, in accordance with respondent's usual methods of reducing its forces, without discrimmai.ion against any employee 45 See N L R R v FJ.epres Publishing Company, 212 U S. 426; May Departieent Stoics Co. V. N. L. R. B., 326 U. S. 876. as In accoidance with the Board 's consistent interpretation of the term , the expiession "former or substantially equivalent position " is intended to mean "former position whei- ever possible , but if such position is no longer in existence , then to a substantially equivalent position ." See Matter of The Chase National Rank of the City of New York, San Juan, Puerto Rico, Branch, 65 N. L. R B. 827. "By "net eainings " is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and woiking else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company, 8 N. L. R B. 440. Monies received for work peiformed upon Federal, State , county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Coi poration v N L R B , 311 U S 7. 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD because of his union affiliation or activity, following a system of seniority to such extent as has heretofore been applied in the conduct of the respondent's busi- ness. Those employees remaining after such distribution, for whom no employ- ment is immediately available, shall be placed upon a preferential list prepared in accordance with the principles set forth in the previous sentence and shall thereafter, in accordance with such list, be reemployed in their former or sub- stantially equivalent positions as such employment becomes available and before other persons are hired for such work." The record discloses that Fred Chadde was reinstated on November 19, 1945, Warren Corneau on January 17, 1946, and Charles Schwiedergoll on October 12, 1945. With respect to each of these three mentioned employees it is recom- mended that they be made whole for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned from the date of the discrimination to the date of their reinstatement, less their net earnings ' during the said period. In view of the finding of a refusal to bargain, the undersigned further recom- mends that the respondent on request by the Union immediately grant recognition to the Union and bargain with it. Upon the basis of the above findings of fact and the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAW 1. United Commercial Artists and Photographers, and Progress Council, are labor organizations within the meaning of Section 2 (5) of the Act. 2 By dominating and interfering with the formation and administration of the Progress Council and contributing support to it, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By discriminating in regard to the hire and tenure of employment of the employees named in "Appendix A" of this report, thereby discouraging member- ship in the United Commercial Artists and Photographers, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Sec- tion 8 (3) of the Act. 4. All artists, photographers, photo-copyists and their apprentices, excluding supervisory employees who spend less than 50 percent of their time doing com- mercial art or photographic work, at all times material herein constituted and now constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 5. United Commercial Artists and Photographers was at all times material herein and now is the exclusive representative of all the employees in such unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 6. By refusing to bargain collectively with United Commercial Artists and Photographers as the exclusive representative of the employees in the above- described unit, respondent has engaged in and is engaging in unfair labor prac- tices within the meaning of Section 8 (5) of the Act. 33 See Matter of Firth Carpet Company, 33 N L R B 191 enforced as modifled 129 F. (2d) 633 (C C. A. 2). 39 See footnote 37, sapra. VOGUE-WRIGHT STUDIOS, INC. 815 7. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 9. Respondent has not violated Section 8 (3) of the Act by the discharge and refusal to reinstate William Horton and Kenneth Hoopes. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that Vogue-Wright Studios, Inc., Chicago, Illinois, its officers, agents, successors, and assigns shall: O 1. Cease and desist from : (a) Interfering with the formation and administration of the Progress Council, or with the formation and administration of any other labor organization, and from contributing support to the Progress Council or to any other labor organ- ization ; (b) Discouraging membership in the United Commercial Artists and Photo- graphers, or any other labor organization of its employees, by discharging and refusing to reinstate any of its employees or in any other manner discriminating in regard to the hire and tenure of employment and any terms or conditions of employment ; (c) Refusing to bargain collectively with the United Commercial Artists and Photographers as the exclusive representative of all artists, photographers, photo- copyists and their apprentices, excluding supervisory employees who spend less than 50 percent of their time doing commercial art or photographic work, with respect to rates of pay, wages, hours of employment, and other conditions of employment ; (d) In any other mariner interfering with, restraining, or coercing its em- ployees in the exercise of the rights to self-organization, to form labor organiza- tions, to join or assist United Commercial Artists and Photographers, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectu- ate the policies of the Act : (a) Completely disestablish the Progress Council as the representative of any of its employees for the purpose of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, and other con- ditions of employment; (b) Offer to the employees named in "Appendix A" immediate and full reinstate- ment to their former or substantially equivalent positions, without prejudice to their seniority and other rights and privileges in the manner set forth in the Sec- tion entitled "The remedy" above, placing those employees for whom no employ- ment is not immediately available upon a preferential list; in the manner set forth in said section, and thereafter, in said manner, offer them employment as it becomes available; (c) Make whole the employees listed in "Appendix A" for any loss of pay they may have suffered by payment to each of them of an amount equal to that which 816 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD he would normally have earned as wages during the period from October 4, 1945, to the date the respondent's offer of reinstatement or placement upon a preferen- tial list, in the manner set forth in "The remedy," less his net earnings during said period; (d) Make whole employees Chadde, Corneau, and Schwiedergoll for any loss of pay they have suffered by payment to each of them of an amount equal to that which he would normally have earned as wages during the period from October 4, 1945, to the date of his reinstatement, in the manner set forth in "The remedy," less his net earnings during said period ; (e) On request bargain collectively with the Union as the exclusive representa- tive of the employees within the unit hereintofore found to be appropriate for the purposes of collective bargaining, with respect to rates of pay, hours of employ- ment, or other conditions of employment, and if an understanding is reached, em- bodE such understanding in a signed agreement; (f) Post in conspicuous places throughout the Studios of the respondent in Chicago, Illinois, copies of the notice attached hereto and marked "Appendix B." Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, after being signed by the respondent's representative, shall be posted immediately by the respondent upon receipt thereof and maintained by it for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (g) Notify the Regional Director for the Thirteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the date of the receipt of this Intermediate Report, the respondent notifies the Re- gional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the respondent to take the action aforesaid. It is also recommended that the allegations of the complaint that the respondent discriminatorily discharged William Horton and Kenneth Hoopes, be dismissed. As provided in Section 203.39 of the Rules and Regulations of the National Labor Relations Board, Series 4, effecthe September 11, 1946, any party or counsel for the Board may, within fifteen (15) days from the date of service of the order transferring the case to the Board, pursuant to Section 20338 of said Rules and Regulations, file with the Board, Rochambeau Building, Wash- ington 25, D. C., an original and four copies of a statement in writing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof; and any party or counsel for the Board may, within the same period, file an original and four copies of a brief in support of the Intermediate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. Proof of service on the other parties of all papers filed with the Board shall be promptly made as required by Section 203.65 As further provided in said Section 203 39, should any party desire permission to argue orally before the Board, request VOGUE-WRIGHT STUDIOS, INC. 817 therefor must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. MORTIMER RIEMER, Trial Examiner. Dated December 12. 1946. APPENDIX A Sol Baroff 'lessie Krasinski Frank Siok Rudolph Fuhr Janith Magimlis Ernest Stiess Mary Hjorth Charles Plummer Rudolph Zack Stanley Kersten Frank Point Adam Kinczyk Kate Richardson APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively upon request with the UNITED COMMERCIAL ARTISTS AND PHOTOGRAPHERS as the exclusive representative of all the em- ployees in the bargaining unit described herein with respect to rates of pay, hours of employment, or other conditions of employment and if an under- standing is reached, embody such understanding in a signed agreement. The bargaining unit is: All artists, photographers, photo-copyists, and their apprentices, excluding supervisory employees who spend less than 50 percent of their time doing commercial art or photographic work. WE HEREBY DISESTARLISM the Progress Council as the representative of any of our employees for the purposes of dealing with us concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment , and we will not recognize it or any successor thereto for any of the above purposes. WE WILL NOT interfere with the formation or administration of any labor organization or contribute other support to it. WE WILL OFFER to the employees named below immediate and full rein- statement to their former or substantially equivalent positions without prejudice to any seniority or other rights or privileges previously enjoyed and make them whole for any loss of pay suffered as the result of the discrimination. Sol Baroff Tessie Krasinski Frank Siok Rudolph Fuhr Janith Maginnis Ernest Stiess Mary Hjorth Charles Plummer Rudolph Zack Stanley Kersten Frank Point Adam Kinczyk Kate Richardson WE WILL NOT in any manner interfere with, restrain , or coerce our em- ployees in the exercise of their rights to self -organization , to form labor organizations , to join or assist UNITED COMMERCIAL ARTISTS AND PHOTOG- RAPHERS or any other labor organization , to bargain collectively through 818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection. All our employees are free to become or remain members of this union, or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. VOGUE-WRIGHT STUDIOS, INC., Employer. Dated ---------------------------- By --------------------------------- (Representative ) ( Title) NOTE : Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.