Reed & Prince Manufacturing Co.

850 DECISIONS OF NATIONAL LABOR RELATIONS BO RD CONCLUSIONS OF LAW 1. Local 900, International Union of Operating Engineers, A. F. L. is a labor organization within the meaning of Section 2 (5) of the Act. 2. Kenton R. Champion, Gordon Champion, Raymond Williams, Robert R. Childers, H. R. Childers, Johnnie Leonard, Edsuel W. Lawhorn, and Edward Lawhorn, in the exercise of their concerted activities, constituted a labor organi- zation within the meaning of Section 2 (5) of the Act. 3. By refusing to bargain collectively with Local 900, International Union of Operating Engineers, A. F. L., as the exclusive bargaining representative of the employees in an appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 4. By bargaining unilaterally with some of its employees and ignoring the exclusive bargaining representative selected by its employees, Respondent has engaged in and is engaging in unfair labor practices in violation of Section 8 (a) (1) of the Act. 5. By discriminating in regard to the tenure of employment of Jackson Theo- dore Patty and Charles F. Jones, the Respondent encouraged membership in a labor organization in violation of Section 8 (a) (3) of the Act, and has inter- fered with, restrained, and coerced the said employees in the exercise of rights guaranteed to them by Section 7, in violation of Section 8 (a) (1) of the Act. 6. All garage mechanics, garage body men, parts room employees, wrecker truck operators, boiler room operators, and apprentices in the afore-mentioned classification employed by Respondent in the Oak Ridge, Tennessee, plant, exclud= ing salesmen, office-clerical employees, service station employees, professional employees, guards, and supervisors as defined by the Act, constitute a unit appro- priate fo'r the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 7. On March 10, 1950, Local 900, International Union of Operating Engineers, A. F. L., was, and at all times since, has been, and now is, the exclusive repre- sentative of all employees in the unit for the purpose of collective bargaining within the meaning of Section (9) (a) 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 engaged in unfair labor practices by interrogating its employees on or about March 4, 1950, by soliciting its employees to resign from the Union on or about March 6, 1950, and by promising financial and other benefits to its employees on condition that they refrain from joining or retaining membership in the Union on or about March 8, 1950, as alleged in tile 'complaint. [Recommended Order omitted from publication in this volume.] REED & PRINCE MANUFACTURING COMPANY and UNITED STEELWORKERS OF AMERICA, CIO. Case No. 1-CA-865. October 16, 1951 Decision and Order On June 5, 1951, Trial Examiner C. W. Whittemore issued his Intermediate Report in this case, finding that the Respondent had en- gaged in and was engaging in certain unfair labor practices in viola= 96 NLRB No. 129. REED & PRINCE MANUFACTURING COMPANY 851 tion of Section 8 (a) (1) and (5) of the National Labor Relations Act, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate. Report attached hereto. Thereafter, the Respondent filed exceptions. to the Intermediate Report and a brief in support thereof. The Re- spondent's request for oral argument is denied because the record and brief, in our opinion, adequately present the issues and positions of the parties. The Board has reviewed the rulings of the Trial Examiner made- at the hearing and finds that no, prejudicial error was committed.- The rulings are hereby affirmed.' The Board has considered the'Inter- mediate Report, the exceptions and brief, and the entire record in- the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner to the extent that they are consistent with this Decision and Order. The Union was certified as the collective bargaining representa- tive of the Respondent's production and maintenance employees on July 20, 1950. A few days later, Stevens, a representative of the Union, telephoned Reed, Respondent's president, in order to set a date for a bargaining conference. No date was arranged during this conversation, but shortly thereafter the Respondent notified Stevens that, be'Cause of previously planned vacations, 'the officials who were to represent the Respondent would not be available until after Labor Day. Accordingly, Stevens communicated with the Re- - spondent after Labor Day, and the first bargaining meeting was set for September 15, 1950. As the Trial Examiner found, this was the first of 10 meetings between the parties in September, October, and November. The record shows that, by the November 22 meeting, both the Respondent and the Union recognized that an impasse had been reached in the negotiations! Government conciliators at-- I Toward the end of the hearing, the Trial Examiner refused to grant the Respondent a continuance of a day or two in order that the Respondent could secure the-testimony at the hearing of the stenotypists present at the bargaining sessions . The Respondent thereupon returned subpenas that had been issued to it for this purpose , and now argues that the Trial Examiner's ruling was prejudicial and deprived the Respondent of a fair hearing. As the record shows that the Respondent had ample opportunity to introduce the testimony of the stenotypists at the hearing , we affirm the Trial Examiner 's ruling In any event , the record reveals that there is no material discrepancy in the testimony of - union and Respondent witnesses as to what took place at the bargaining sessions The stenographic transcript of the bargaining negotiations would, therefore , be largely cumula- tive in character. The Respondent's attorney filed an affidavit with his brief , in which he referred to certain off-the-record conversations with the Trial Examiner concerning the procurement of the - stenotypists' testimony. The General Counsel and the Union have both filed motions with the Board to strike this affidavit. In view of our disposition of the continuance problem above, we deem this whole matter irrelevant and immaterial and we find it unnecessary to rule on the motions. 2 Notwithstanding the recognition by the parties of the existence of an impasse , the legal - rights inherent in this situation depend upon whether or not such impasse was reached as the result of bona fide collective bargaining . See N. L. R. B. v. Andrew Jergens Com- - peny, 175 F. 2d 130 ( C A 9, 1949). 852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tended some of the early November meetings, and all meetings after November 22 were arranged by the conciliators. After another abortive bargaining session on December 27, the Union called a strike on January 2, 1951. Although the Respondent resumed oper- ations of the plant in March 1951, the strike was still in progress at the time of the hearing in May. The parties also met twice during the course of the strike, at meetings arranged by. the conciliators, on January 18 and February 6, 1951. The Trial Examiner found that (1) the Respondent, at all times since August 6, 1950,1 had not bargained in good faith with the Union, and had therefore refused to bargain collectively with the Union within the meaning of Section 8 (a) (5) of the Act, (2) the refusal to bargain was the cause of the strike on January 2, 1951, and (3 ) both by the fact and the nature of its solicitation of individual employees to return to work during the course of the strike, the Respondent violated Section 8 (a) (1) of the Act, thereby persisting in its refusal to bargain in good faith with the Union and prolonging the strike. Although the Board agrees with the Trial Examiner's ultimate conclusion that the Respondent did not bargain with the Union in good faith, inasmuch as the Intermediate Report inaccurately re- flects the record in certain material respects, it is necessary to reap- praise the factual background upon which this conclusion rests. The matters set forth below are, generally speaking, dealt with in chronological sequence and are not necessarily considered in the order of their weight or importance. 1. The Respondent delayed the first meeting with the Union for about 6 weeks on the ground that the members of its "bargaining team" had previously arranged vacations. Although this seems on its face to be a reasonable explanation for the delay, the negotiation of a collective bargaining agreement is as important as any business trans- action. Accordingly, the Respondent's good faith in the present in- stance may be tested by considering whether it would have acted in a similar manner in the usual conduct of its business negotiations. From this point of view, we question whether the Respondent would have delayed, for such a relatively long period of time, negotiations for a business contract or a bank loan it was desirous of concluding. Al- 3 The original charge in this case was filed on February 6, 1951, and was served upon the Respondent on February 8, 1951. In accordance with Section 10 (b) of the Act, August 8, 1950 , is the earliest date that a violation of the Act can be found. In finding that the entire course of the Respondent 's conduct in the negotiations with the Union was characterized by bad faith, the Trial Examiner relied in part on what he found to be an unreasonable delay in scheduling the first meeting. For this reason , he was able to find a refusal to bargain that dated back to the first attempt by the Union , after its certifica- tion, to meet with the Respondent . In computing the 6-month limitation period provided for in section 10 (b) of the Act, the Trial Examiner inadvertently took the date of the filing of the charge and not, as he should have, the date the charge was served upon the Respond- ent. We hereby note and correct this error. 1 REED & PRINCE MANUFACTURING COMPANY 853 ough the Respondent's conduct in this respect, standing alone, might ie deemed equivocal, appraising it in the context of the Respondent's whole course of conduct we conclude that it was another aspect of the Respondent's calculated effort to avoid reaching an agreement with the Union while preserving the appearance of bargaining. Similarly, the Respondent's explanation for the delay in furnishing certain wage and pension data to the Union, although plausible on its face, is subject to the test of good faith. By letter of August 9, 1950, the Union, already having learned that it could not meet with the Respondent until after Labor Day, requested the Respondent to furnish it with wage rates and classifications and the age and length of service of all employees in the bargaining unit. The letter asked'for a prompt reply, but the Respondent did not even answer. The request was re- iterated at the first meeting on September 15. The Respondent con- tends that the original request was not clear, and that on September 15 the Union explained in more detail just what it wanted. Whatever the validity of this contention may be,4 the information was not im- mediately forthcoming. Sometime later, the Respondent informed the Union that the illness of two employees in its industrial relations department was holding up the compilation of the information. The Union maintained from the beginning that only a simple clerical job was involved. In any event, the wage and pensioljL data was not fur- nished to the Union until after the lapse of a considerable period of time following the request therefor. Although the record is not clear as to the exact date of compliance with this request, it is clear that the wage data was not given to the Union before October 7 and might not have been furnished until the October 31 meeting. The Respondent had a legal duty to furnish the wage and pension data in the discharge of its obligation to bargain.5 As in the case of the tardy scheduling of the first meeting, the Respondent's delay in supplying the requested data may be viewed legitimately as a sig- nificant part of its entire course of conduct in determining whether or not the Respondent has exercised good faith in its bargaining negotia- tions with the Union. We find that such delay is evidence of bad faith to be considered in the making of our over-all finding herein. 4 The August 9 letter read as follows : ... In order to enable the United Steelworkers of America to bargain intelli• gently with the Reed & Prince Manufacturing Company on the conditions of a collec- tive bargaining agreement , it is necessary that the Union have the following infor- mation : 1. List of all occupations in the plant for : ( a) day workers , rate or rate range. (b) piece workers , base rate, if any, day work rate , if any , and the method for establishing rates. 2 The ages of all employees in the bargaining unit, with their length of continuous service, either in terms of their hiring date or their length of service as of January 1, 1950. A prompt reply will be appreciated. . . . Leland-Gifford Company, 95 NLRB 1306, and cases there cited. 974176-52-vol 96-55 854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Early in August 1950, in one of his first telephone talks with Bee Stevens asked permission for the Union to post noncontroversial no tices on the Respondent's bulletin boards. This request was denied, and when it was repeated at the bargaining meetings the Respondent again refused permission, explaining that the bulletin boards were already too crowded. The Respondent did agree to give consideration to granting to the Union the use of the plant gates for posting purposes, but at no point during its negotiations with the Union did the Re- spondent commit itself even to this suggestion. We recognize that the Respondent is under no obligation to make its bulletin boards or plant gates available to the Union for the posting of notices. However, we also recognize that the granting of such posting permission is a com- mon industrial practice. Accordingly, it seems reasonable to us that the Respondent, if it was dealing in good faith, would have offered to the Union some sort of posting facilities. The Respondent argues that this issue was trivial and unimportant, and that it was considered to be good collective-bargaining technique to withhold approval on such minor matters until the major issues had been settled. Whatever merit there may be in this argument, we are of the opinion that the Respondent's handling of the bulletin board matter, taken in the con- text of this case, indicates the Respondent's basic unwillingness to accept the principle of collective bargaining and further strengthens our conclusion that the Respondent has not bargained in good faiths 3. At each of the bargaining sessions with the Union the Respondent insisted, over the Union's strenuous objection, on having a stenotypist take down a verbatim transcript of the proceedings. This is not the approach usually taken by a participant in collective bargaining nego- tiations seeking and expecting in good faith to reach an agreement; it is more consistent with the building of a defense to anticipated refusal to bargain charges. The presence of a stenographer at such negotiations is not conducive to the friendly atmosphere so necessary for the successful termination of the negotiations, and it is a practice condemned by experienced persons in the industrial relations field. Indeed, the business world itself frowns upon the practice in any delicate negotiations where it is so necessary for the parties to express themselves freely. The insistence by the Respondent in this case upon the presence of a stenotypist at the bargaining meetings is, in our opinion, further evidence of its bad faith. 4. On September 15, 1950, after the first meeting, the Union mailed to the Respondent a proposed contract. Article 2 thereof provided for a simple recognition by the Respondent of the Union as the exclu- sive bargaining representative of the employees in the appropriate unit. At the next meeting, on September 29, the Respondent agreed 6 See Montgomery Ward & Co., Incorporated, 90 NLRB 1244, 1299. REED & PRINCE' MANUFACTURING COMPANY 855 to this provision on the condition that it be amended to include the first proviso of Section 9 (a) of the Act, concerning the right of individual employees to present grievances. The Union was agreeable to this amendment, provided the second proviso of Section 9 (a), dealing with the right of the Union to be present at the adjustment of such indi- vidual grievances, also was included. The Respondent neither ac- cepted nor rejected this countersuggestion at that time; however, to the extent that the recognition clause in the written proposal submitted by the Respondent to the Union on November 22,1950, did not include the countersuggestion, the Respondent must be deemed to have rejected it. The Respondent argues that it considered this matter still on the bargaining table, and that, as in the case of the bulletin boards, it was good bargaining technique to withhold approval until the major issues were settled. We believe that once the Respondent itself insisted on incorporat- ing the substance of the first proviso in Section 9 (a) into the recog- nition clause, if it were seeking a good faith disposition of issues, it would have readily acceded to the Union's natural request to include the second proviso. The Respondent saw fit to make an issue about the simple recognition clause proposed by the Union, and then failed to accede to the Union's reasonable countersuggestion, comparable to the Respondent's own amendment, to include the whole of Section 9 (a). We cannot conceive of a good faith basis for a refusal to incor- porate a statutory obligation into a contract in the very words of the statute. This type of quibbling conduct is consistent only with the conclusion that there was bad, not good, faith bargaining. 5. At the second bargaining meeting on September 29, 1950, the Respondent offered the Union a 10-cent per hour general wage in- crease. This offer was made upon the express condition that if the offer was accepted, there would be no further negotiation on this sub- ject. The record shows that the Respondent made it clear to the Union that the wage offer was independent of and had no bearing upon other union demands, such as insurance, pensions, and paid holidays, con- nected with wages. The record does not, therefore, support the Trial Examiner's finding that the 10-cent offer had "strings" attached to it and that the Respondent thereby foreclosed collective bargaining on subjects connected with wages. We find below that the Respondent rejected, as it had a right to do,7 the pension, insurance, and paid holiday demands of the Union. Furthermore, no question having been raised in the negotiations concerning ability to pay, the Respond- ent had a right to condition the 10-cent offer in the manner it did. Accordingly, we do not, as did the Trial Examiner, in any way base 4 Section 8 (d) of the Act provides that the obligation to bargain collectively --. . . does not compel either party to agree to a proposal or require the making of a concession .. . 856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our fundamental conclusion of bad-faith bargaining on the condi- tional nature of the Respondent's wage offer. On December 4, 1950, the Respondent unilaterally put the 10-cent wage increase into effect. In the notice given to all employees's the Respondent made no mention of the Union, the duly constituted bar- gaining agent, but merely noted that the 10-cent increase had been "previously offered to the factory employees." As previously noted, the record shows that by the conclusion of the November 22 meeting, and certainly after the November 29 meeting, the Respondent and the Union had reached an impasse in their negotiations. The Respondent, relying upon Board authority, argues that it was then legally entitled to put the wage increase into effect in the manner indicated. We do not agree. It is our opinion that this action of the Respondent is another aspect of its lack of good faith in the bargaining negotiations with the Union. The Board has frequently had occasion to point out that the unilateral granting of a wage increase during the course of negotiations with the legally constituted bargaining representative of its employees is a violation of the Acts Such action necessarily has the effect of under- mining the representative status and prestige of the bargaining agent. To be sure, the Board has recognized that such wage increases can, unilaterally, be made legally effective once the parties have reached, as a result of good-faith bargaining, an impasse in the bargaining negotiations.- However, even under such circumstances, the wage increase must not be put into effect in such a way as to disparage the bargaining agent or undermine its prestige or authority " In the case before us, an impasse had been reached, but the impasse' may not have resulted had the Respondent bargained in good faith as lawfully required 12 The responsibility for the impasse must be assessed to the Respondent. Our conclusion of bad-faith bargaining on the Respondent's part is bolstered by the Respondent's diligence in putting the wage increase into effect within a week or two of the impasse and without first notifying the Union, the selected representa- tive of the employees, or even mentioning the Union in its notification to the employees. The Respondent's argument in defense of the wage increase is that it saw no reason to deprive the employees of the increase merely because contract negotiations had broken down. But 8 The notice read as follows : Based on certain decisions of the National Labor Relations Board, the management is now permitted to put into effect immediately the 10 ¢ an hour increase previously offered to the factory employees in the National Labor Relations Board bargaining unit. Accordingly; this 10¢ an hour ( sic) will become effective December 4, 1950. 9 Bradley Washfountain Company, 89 NLRB 1662, and cases there cited. 10W. W. Cross & Company, Inc., 77 NLRB 1162. n Ibid. See also Crompton-Highland Mills, Inc., 70 NLRB 206, enforced in 337 U. S. 217; Craddock-Terry Shoe Corporation, 73 NLRB 1339. 12 See N. L. if. B. V. Andrew Jergens Company, supra. REED & PRINCE MANUFACTURING COMPANY 857 the major premise upon which this argument rests is that the Respond- ent had theretofore honestly and in good faith sought to reach an understanding with the Union. We find herein that it did not. We further find that the Respondent emphasized this bad faith by an- nouncing the wage increase in such a way that the Union could not and did not in any way share the credit for it. 6. We agree with the Trial Examiner's conclusion that the Respond- ent refused to bargain in good faith with respect to the checkoff provision but for the following reasons : The Respondent at all times took the position that it is under no legal obligation to bargain on the subject of checkoff. Contrary to this position, the Board has held that checkoff is a bargainable issue.13 Although the Respondent proceeded to give the Union reasons why it would not grant a checkoff provision even if it were a bargainable issue, we are convinced that the requisites for good-faith bargaining cannot be found to exist when the lack of a legal requirement to bargain is uppermost in the Respondent's mind. An employer who takes such a position on a bargainable subject can hardly approach the discussion of this subject with an open mind and a willingness to reach an agreement. Conclusions as to the Bargaining Negotiations Although no one of the separate elements in this case is in itself conclusive evidence of bad-faith bargaining, when the entire bargain- ing pattern of the Respondent is viewed in its 'totajity and the individual items are appraised together, the picture is clear. We agree with the Trial Examiner's conclusion because, after a careful study of this difficult record, we are convinced that the Respondent did not participate in the bargaining negotiations with the good faith required of it by law. Unlike our dissenting colleague, we are con- vinced-that the record, taken as a whole, demonstrates a lack of good- faith bargaining on the Respondent's part. The Respondent is not experiencing labor relations difficulties for the first time. More than 10 years ago, a predecessor of the Union sought recourse to the Board in a not too dissimilar situation, and it was not until the Board issued an Order 14 and the Court of Appeals for the First Circuit enforced the Order 15 that the Respondent nego- tiated a collective bargaining agreement. We have scrupulously avoided prejudging the Respondent because of its rather unsavory labor relations history, but the Board is not required by law to ignore this history. Accordingly, in evaluating the evidence in this case, we have given some weight to this factor.16 13 United States Gypsum Company, 94 NLRB 112. 1412 NLRB 944 (1939). 1b 118 F. 2d 874 (1941). "We are not unmindful of the fact that from 1941 to 1945, as a result of the court decree, the Respondent had contractual relations with the Union. 858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In a case such as this it is appropriate to inquire whether the Re- spondent has participated in the bargaining negotiations in such a manner as to make the effectuation of a collective bargaining agree- ment reasonably possible. This does not mean that the Respondent must capitulate to demands or make concessions. It does mean that the Board must satisfy iself that the over-all attitude and position of the Respondent reflects an honest endeavor to make collective bar- gaining work. In our judgment, the Respondent's explanations for certain delays, its justification for the refusals of certain demands, and its excuses for not unqualifiedly agreeing to but rather taking "under advisement" other so-called minor matters, when considered together, simply do not add up to the good faith with which the Re- spondent is required to participate in collective bargaining negotia- tions. After.months of meetings, practically all the Union could report to its membership in the way of progress was the 10-cent wage offer-freely given by the Respondent in an inflationary period of rising wages. The grievance procedure and the seniority clause had not been finally worked out, and approval of the recognition clause and notice-posting facilities was being held up for reasons of "bargaining technique." In short, we are satisfied that the failure of the parties to reach an agreement-which is the essential purpose of the Act- can be attributed to the bad faith displayed by the Respondent in the bargaining sessions. We conclude, therefore, that the Respondent exhibited bad faith in the bargaining negotiations, and we rely especially on the following facts : (1) The delay in scheduling the first meeting 17 and in furnishing the wage and pension data; (2) the insistence upon the presence of a stenotypist at the bargaining sessions ; (3) the unreasonable withhold- ing of acquiescence on admittedly trivial matters, such as notice-post- ing facilities and the recognition clause; (4) the hasty institution of the wage increase after the negotiations had broken down, without notifying the Union or in any way permitting the Union to share in the credit for the increase ; and (5 ) the handling of the checkoff issue. In reaching the conclusion that the Respondent had bargained in bad faith, we do not rely, as did the Trial Examiner, upon the Respondent's failure to agree to some sort of interim grievance procedure 18 Fur- thermore, unlike the Trial Examiner, we do not find that the Re- spondent, at the September 29 meeting, "candidly challenged" the 14 Northeastern Indiana Broadcasting Co., Inc. (WKJG), 88 NLRB 1381. 18 The Union brought up this subject at' the September 15 meeting , stating that, pend- ing the execution of a final contract, it was desirous of working out some procedure whereby a union representative could accompany an employee in the presentation of grievances . The Respondent replied that any such matters arising during the course of the negotiations could be presented at the bargaining conferences . While we do not think that the bargaining table is the proper place to discuss grievances, we are not prepared to find any evidence of bad faith either in this suggestion or in the Respondent's failure to work out some other type of interim grievance procedure. REED & PRINCE MANUFACTURING COMPANY 859 'Union to strike,19 a factor which the Trial Examiner used to support his finding that the Respondent had bargained in bad faith. Finally, we do not think that the record supports the Trial Examiner's finding that the Respondent failed to give the Union a definite answer on pensions and insurance, seniority, or the grievance procedure, and we base no part of our findings on these factors. As noted above, how- ever, we believe that the specific factors relied upon amply support our finding that the Respondent has failed to exhibit that degree of good faith which the Act requires with respect to the obligation to bargain collectively. Accordingly, upon the entire record in this case, we find that, at all times on and after August 8, 1950, the Respondent re- fused to bargain in good faith with the Union and thereby violated Section 8 (a) (5) and Section 8 (a) (1) of the Act. Moreover, our conclusion with respect to the Respondent's lack of good faith in the bargaining negotiations is further supported by reason of the responsi- bility of the Respondent for the conduct of 'Donald Pierce, referred to below, in connection with the back-to-work movement, and particularly by P,ierce's statement indicating that the Respondent had no intention of signing a contract with the Union. The Independent 8 (a) (1) Violation As is more fully described in the Intermediate Report, the Re- spondent, during the course of a strike which had been caused by the Respondent's refusal to bargain in violation of the Act, resumed operation of its plant in March 1951. Prior thereto, Johnson and Donald Pierce had initiated the back-to-work movement. On March 2, 1951, the Respondent sent a letter to each of the striking employees, inviting them to return to work and advising them that if they did not return the Respondent would train new permanent employees to take their jobs. The Respondent also made several of its automobiles available for the transportation of returning strikers across the picket line. Pierce, a rank-and-file employee in the plant, drove a company car on at least one such occasion. At about this time, as the Trial Examiner found, it is undisputed that Pierce told a striking employee that he had better come back to work "because Alden Reed is never going to sign a contract with the Union" and that "they would rather sell the plant than sign a contract with the Union." As the Re- spondent actively participated in initiating the back-to-work move- ment, of which Pierce was one of the leaders, and as the Respondent 10 It appears from the record that the statement referred to by the Trial Examiner was made in connection with the Respondent's rejection of any sort of arbitration pro- vision in the contract . After giving its reasons or not wanting arbitration , the Re- spondent pointed out to the Union, as an additional argument , that the Respondent had not asked the Union for a "no-strike" clause, and that the Union was, therefore, free to strike at any time. This falls far short of supporting the Trial Examiner's character- ization of the episode as a challenge to the Union to strike. 860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD made one of its cars available to Pierce 20 for bringing striking em ployees into the plant, we are of the opinion that the Respondent iden- tified Pierce with itself in the minds of the employees and that, there- fore, the Respondent is responsible for the clearly coercive statement by Pierce made in furtherance of the Respondent's policy and inter- ests. The record also reveals that, at about the same time, two foremen personally solicited striking employees to return to work. As the strike was caused by the Respondent's unfair labor practices and the strikers could not, therefore, be legally replaced'21 the Re- spondent's letter of March 2, 1951, threatening the strikers with loss of their jobs, was in itself an independent violation of Section 8 (a) (1) of the Act,22 as was also the personal solicitation by the Respond- ent's foremen for whose conduct the Respondent is clearly responsible, and the coercive remarks of Pierce. Order Upon the entire record in this case and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent, Reed & Prince Manufacturing Company, Worcester, Massachusetts, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all production and maintenance employees of the Respondent at its Worcester, Massa- chusetts, plant, including shipping and receiving room employees and inspectors, but excluding office employees, departmental clerks, execu- tives, foremen, assistant foremen, draftsmen, professional employees, guards, and all supervisors as defined in the Act, with respect to rates of pay, wages, hours of employment, or other conditions of employ- ment. (b) Soliciting employees who went on strike on January 2, 1951, to abandon their concerted activities, by threats of reprisal, by prom- ises of benefit, or by any other means circumventing the Union as the exclusive bargaining representative of such employees. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist United Steelworkers of America, CIO, or any other labor organization, to bargain collectively through 20 Pierce's normal job in the plant was that of expediter, and he had nothing to do with the driving of automobiles. 21 N. L. R. B. v. Mackay Radio & Telegraph Co., 304 U. S. 333. 22 Cf. The Texas Company, 93 NLRB 1358, and Celanese Corporation of America, 95 NLRB 664. These cases, in which the Board held solicitations to return to work not violative of the Act, are distinguishable in that in neither case was the strike caused by unfair labor practices. REED & PRINCE MANUFACTURING COMPANY 861 representatives of their own choosing, and to engage in collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Steelworkers of America, CIO, as the exclusive representative of all the employees in the appropriate unit, and, if an understanding is reached, embody such understanding in a signed agreemeo'it. (b) Mail to each of its employees to whom the March 2, 1951, letter was sent, and post at its plant in Worcester, Massachusetts, copies of the notice attached hereto as Appendix A.23 Copies of such notice, to be furnished by the Regional Director for the First Region, shall, after being duly signed by the Respondent's authorized representative, be posted and mailed by the Respondent immediately upon receipt thereof, and be maintained by it for sixty (60) consecutive days there- after in conspicuous places, including all places where notices to em- ployees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for the First Region, in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken in compliance herewith. MEMBER REYNOLDS, dissenting : I find myself unable to come to the conclusion that, on the record before us, the Respondent can be found not to have bargained with the Union in good faith. I am not persuaded that an affirmative case, based upon substantial evidence, of bad-faith bargaining has been made out. I am legally obliged not to substitute my general opinion or suspicion for the type of evidence needed to support such a case. In the absence of any accompanying unfair labor practices, I am not prepared to find that the Respondent bargained in bad faith with the Union. The strike of January 2, 1951, was not, therefore, caused by unfair labor practices., It follows that the Respondent was legally entitled to send the March 2 letter to each of the strikers,24 and, through its foremen, to solicit strikers to return to work.25 21 In the event this Order is enforced by a decree of a United States Court of Appeals there shall be inserted in the notice, before the words, "A Decision and Order" the words, "A Decree of the United States Court of Appeals Enforcing." 24 Kansas Milling Company v. N. L. R. B , 185 F. 2d 413 (C. A. 10, 1950). 21 The Texas Company, supra. 862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I would dismiss the complaint in its entirety. CHAIRMAN HERZOG took no part in the consideration of the above Decision and Order. Appendix A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT, by threats of reprisal, promises of benefit, or any other means, solicit employees who went on strike on January 2, 1951, to abandon their concerted activities. WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORK- ERS OF AMERICA, C. I. 0., or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of this union, or any other labor organization. WE WILL BARGAIN collectively upon request with the above- named union as the exclusive representative of all 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, we will embody such understanding in a signed agreement. The bargaining unit is : All production and maintenance employees in our Worces- ter, Massachusetts, plant, including shipping and receiving room employees and inspectors, but excluding office em- ployees, departmental clerks, executives, foremen, assistant foremen, draftsmen, professional employees, guards, and all supervisors as defined in the Act. REED & PRINCE MANUFACTURING COMPANY, Employer. Dated-------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or, covered by any other material. REED & PRINCE' MANUFACTURING COMPANY 863 Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by United Steelworkers of America, C. 1. 0., herein called the Union, the General Counsel of the National Labor Relations Board, herein respectively called the General Counsel and the Board, by the Regional Director for the First Region (Boston, Massachusetts), issued a complaint dated April 13, 1951, against Reed & Prince Manufacturing Company, Worcester, Massa- chusetts, herein called the Respondent, alleging that the Respondent had en- gaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, the complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices the complaint, as amended, alleges in substance that the Respondent: (1) Since on or about August 6, 1950, has refused to bargain collectively with the Union as the exclusive representative of all employees in an appropriate unit; (2) since January 2, 1951, by solicita- tion has attempted to persuade employees on strike because of the Respondent's unfair labor practices to abandon their concerted activities; and (3) by these acts has interfered with, restrained, and coerced its employees in the exercise of rights guaranteed by Section 7 of the Act. On April 25 the Respondent filed its answer, in which it denied having en- gaged in the unfair labor practices alleged. Pursuant to notice, a hearing was held at Worcester, Massachusetts, on April 30, May 1, 2, 3, and 4, 1951, before the undersigned duly designated Trial Ex- aminer. The General Counsel, the Respondent, and the Union were repre- sented by counsel. All participated in the hearing. Full opportunity to be beard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded to all parties. At the conclusion of the hearing all counsel waived opportunity to argue orally. A brief has been received from the Respondent. Upon the entire record in the case, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Reed & Prince Manufacturing Company is a Massachusetts corporation en- gaged, at its only plant, in Worcester, Massachusetts, in the manufacture, sale, and distribution of machine and wood screws and related products. During the past fiscal year the Respondent purchased raw materials, con- sisting principally of steel and other metals and woods, valued at more than $1,000,000, of which about 90 percent was shipped to the Worcester plant from points outside the Commonwealth of Massachusetts. During the same period the Respondent's sales amounted in value to more than $1,000,000, of which about 75 percent was shipped from Worcester, Massachusetts, to points outside the Commonwealth of Massachusetts. II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, C. I. 0., is a labor organization admitting to membership employees of the Respondent. 864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE UNFAIR LABOR PRACTICES A. Background and issues The major issues of this proceeding stem directly and chronologically from the Board's certification, on July 20, 1950, of the Union as the exclusive bar- gaining agent for all of the Respondent's employees in an appropriate unit. There is no dispute as to the validity of the certification and the Board election upon which it was based, or as to the appropriateness of the unit. Within a few days after the Board announced its certification of the Union, an official of that organization made efforts to have the Respondent set dates for negotia- tions. About 6 weeks passed, however, before the Respondent would meet with the Union. Beginning on September 15 and ending on February 6, 1951, a series of 13 meetings were held, attended by representatives of management and the Union. At several of the later meetings representatives of conciliation services, either of the United States or of the Commonwealth of Massachusetts, were also present. At the meeting of December 27, 1950, an official of the Union informed manage- ment that because the Respondent had failed to bargain in good faith a strike of its employees would begin on January 2. The strike occurred as announced and was still in effect at the time of the hearing. It is General Counsel's contention that at all times since the Union's first demand to negotiate, following Board certification, the Respondent has refused to bargain in good faith, and that its bargaining tactics have been identical with those used by it in dealing with the Union's predecessor (Steel Workers Organiz- ing Committee) in 1937. As reference, General Counsel cited Reed & Prince Manufacturing Company, 12 NLRB 944; enforced, as modified, by the United States Court of Appeals for the First Circuit, 118 F. 2d 874. It appears that following the enforcement of the Board's order in the preceding case, the Re- spondent entered into a contract with the Steelworkers in 1941. Contractual relations continued until 1945, when they ceased with submission of a dispute to the National War Labor Board. There is no evidence of union representation among the Respondent's employees from 1945 to early 1950, when the Union filed a petition with the Board which led to its certification. Following the strike a number of the Respondent's supervisors and its pay- master, T. H. Johnson, engaged in conduct designed to bring striking employees back to work ; conduct which General Counsel claims to have been violative of the Act and of a pattern with a similar back-to-work movement, found to have been illegal by the Board and the court, in the strike of 1937. B. The negotiations In the latter part of July, following the Union's certification, Roy H. Stevens, Jr., a field representative of the Union, telephoned to Chester Reed, the Respond- ent's president, and requested a collective bargaining meeting. Reed said he would consult with others in management. A couple of days later Reed called Stevens and told him that he was unable to set a definite date. Early in August Stevens again called, urging that a date be agreed upon, and at the same time requested permission to post union meeting notices, noncontroversial in nature,' on company bulletin boards. Reed again replied that he could not specify a meeting date. A few days later Stevens received a call from an attorney, of the firm which had represented the Respondent during the representation proceed- lugs,' who reported: (1) That management, would be unable to gets its committee together until after Labor Day ; and (2) that permission to post notices was unob- 1 I-RC-1471. REED & PRINCE MANUFACTURING COMPANY 865 tainable. On the latter point he advised Stevens to bring the matter-again to management's attention when negotiations began. Also, on August 9, Stevens wrote to Reed, asking for the following information, pointing out that the data was needed for intelligent bargaining: 1. List of all occupations in the plant for : (a) day workers, rate or rate range. (b) piece workers, base rate, if any, day.work rate, if any, and the method for establishing rates. 2. The ages of all employees in the bargaining unit, with their length of continuous service, either in terms of their hiring date or their length of service as of January 1. 1950. Although in the letter Stevens specifically asked for a prompt reply, none was received. After Labor Day, Stevens again communicated with management, which finally agreed to meet on September 15 A meeting was held that day, and others were convened on September 29; October 5, 12, 20 and 31; November 7, 14, 22 and 29; December 27, January 18, and February 6. At each meeting the chief spokesman for management was Julius Kirle, counsel for the Respondent; while Stevens continued as spokesman for the Union. At the first and all later meetings, even those conducted by the State and Federal conciliation services and over the vigorous protests of the Union, man- agement insisted upon having a stenotypist present. Although the Union pro- tested that the recording of each word in negotiations constituted a psychological barrier to collective bargaining, Kirle flatly told the Union that without a stenotypist no meeting would be held. Although requested, management also refused to provide the Union with a copy of the stenotypists' reports. Further- more, although repeatedly so requested by representatives of the Regional Office during investigation of the charges, Kirle refused to.reveal these records to Board agents. Nor were they offered in evidence during the hearing.' It is General Counsel's claim that as to a number of subjects properly within the scope of bargaining the Respondent refused to negotiate at all, and that as to others it failed to bargain in good faith. Orderly appraisal, therefore, sug- gests review by subject instead of by chronology. Use of bulietni boards. As noted above, Stevens first asked Reed early in August 1950 for permission to post union notices of a noncontroversial nature on plant bulletin boards, and was advised by an attorney then representing the company to raise the question again when negotiations began. Stevens' testimony is unrefuted and the Trial Examiner finds that he repeated the union request on September 15 and 29, and October 12 and 31. On each occasion the Respondent's spokesman declined to give permission, and throughout negotiations maintained the position that it was "considering" allowing the Union to post notices at the plant gate. At the hearing Vice-President Ernest C. Boyd testified that never had the Respondent given an answer to the Union regarding bulletin board privileges, a point which he admitted was minor. Even if Boyd's claim that "our bulletin board space is too crowded as it is" were to be accepted as other than a frivolous explanation for not granting the privilege, it fails to support any readily apparent reason why, at the time of the hearing 9 months later, management was still deliberating as to whether or not it would let the Union post notices even at the plant gate. 3 Not associated with the firm representing the company during the representation case. Although counsel for the Respondent , at the opening of his ease, obtained subpenas for the purpose of calling the stenotypists as witnesses , he thereafter returned the subpenas and stated that he would not call them. 866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Recognition clause. Although the Respondent indicated willingness to agree to a clause in a proposed a'greenient acknowledging its recognition of the Union as the exclusive bargaining agent in the appropriate unit, it also insisted upon adding a phrase providing that any employee or group of employees could present grievances to management at any time. The Union agreed to this amendment, but asked that the full language of the Act on this point be used, to the effect that the Union be notified and permitted to participate in grievance settlements. Although the latter proposal was made at the September 29 meeting, .manage- ment then and thereafter failed to give the Union any reply. As a witness, Boyd admitted that he could not "recall" ever giving the Union a reply on its proposal, and offered no explanation for management's failure in this respect. Request for wage information. As quoted above, by written request the Union sought certain wage information as early as August 9, 1950. The Respondent apparently ignored the letter, for it made no reply. At the September 15 meet- ing Stevens renewed his request. The information had not been prepared, management said, and finally and reluctantly agreed to provide it if it did not "interfere with their business." It was not made available at the next and following meetings until October 31, when part of it was furnished. All in- formation sought was not turned over to the Union until November 7, 3 months after the first request was made. Union shop and/or checkoff. At the beginning of negotiations management assumed and thereafter at all times maintained its staunch refusal to grant a union-shop provision. The 'Union then proposed a clause requiring maintenance- of-membership. Management stated flatly that it would agree to no form of union security. As to the checkoff of union dues, Kirle insisted throughout negotiations that the subject of checkoff was not a bargainable issue. Arbitration. Throughout the long period the Union was seeking to reach contractual agreement with the Respondent, management declined to yield to the Union's proposals as to arbitration, either as to interpretation of the contract, or as to grievances. As early as the September 29 meeting management's spokes- man bluntly said that "the Union could strike if they were unable to settle grievances involving the application of the contract." Of significant bearing upon the Respondent's attitude toward good-faith bargaining is the fact that shortly after the strike began, the Union agreed to arbitrate all issues, but management persisted in its refusal. Interim grievance procedure. At the first negotiating meeting Stevens pro- posed an interim grievance procedure whereby a union committeeman, an employee, would be permitted to accompany employees with grievances when visiting company representatives. Management refused, insisting that any grievances should be taken up at the negotiating conferences. The Union's proposal was not merely rhetorical. It is undisputed that at that time manage- ment was calling employees to the office concerning violation of shop rules, and the Union explained that it was desirable to have a union representative ac- company employees affected. Wage proposals and unilateral wage increase . At the second bargaining meeting, on September 29, management offered a flat 10-cent per hour general wage increase, provided there would be no further negotiations on this subject. The Union declined to accept the offer, pointing out that it as yet had not received the wage information requested, that'other factors bearing upon the wage ques- tion should be considered-such as insurance, pension, and holidays, and that it could not agree to "strings" attached to the offer which foreclosed further bar- gaining on wages. Management repeated its offer at later meetings, but each time with the restrictive provision. Finally, on December 4, and without union approval, management put the general wage increase into effect, despite the fact REED & PRINCE MANUFACTURING COMPANY 867 that it had not given the Union replies to proposals on other matters bearing on wages. Grievance procedure. At several meetings this subject was discussed at length. Management remained adamant, however, in its position that it would not agree to any form of arbitration as the final step in settling grievances. When the strike occurred, negotiations on this matter were at a point where the Union was awaiting a counterproposal concerning the wording of a clause which Kirle had promised. It was never received by the Union. Vacations. From September 29 to cessation of negotiations management held rigidly to its refusal to make any changes in its own vacation policy and practice, never varying from its stand in opposition to the Union's proposed vacation clause. Seniority. Considerable discussion was had on both the substance and word- ing of a clause on this subject. Even up to the time of the hearing, however, according to Boyd's own testimony, management had never given the Union a definite answer to the latter's proposal as to the length of time an employee would be carried on the payroll when not working. Holidays. The Union's request for six paid holidays as a provision in a contract was turned down flatly by the Respondent. As explanation for not granting this demand company spokesmen said that employees were given a year-end bonus. However, when asked by the Union to place some provision in the contract concerning the bonus, the Respondent likewise and as stead- fastly refused. Pensions and insurance. Early in the negotiations the Union made definite proposals as to the establishment of pension and group insurance plans. Although the company spokesmen listened and asked questions, and said they could see no need of any industrial pension to supplement social security, they simply told the union representatives that they would take the questions "under advisement." Months later, in May 1951, at the hearing in this case, manage- ment still had these questions under "advisement," and not yet had given the Union any reply on its proposals. Posting of job openings. Management was specifically requested, on October 5, to post job openings on the bulletin boards, in order that employees might bid on them. The spokesman for management flatly refused the request, and throughout the remainder of the sessions did not retreat from this position. Joint safety committee. On the establishment of a joint management-employee safety committee, for the making of periodic inspections of the plant, the Re- spondent took its position in flat denial of the Union's proposal. Boyd ad- mitted that the company refused to change its attitude toward this proposal, Leaves of absence. Early in the negotiations the Union proposed that leaves of absence for employees be granted by mutual agreement. Management effectively disposed of this proposal by stating that it did not grant leaves of absence. As pointed out by General Counsel at the hearing, management's claim to the Union that it did not grant such leaves finds written refutation in its own "Book of Information for Employees," which specifically refers to "Leave of Absence." C. Conclusions as to bargaining "To bargain collectively," reads Section 8 (d) of the Act, "is the performance of the mutual obligation ... to meet at reasonable times and confer in good faith with respect to ... the negotiation of an agreement, or any question arising thereunder...: ' " . it is well settled," said the Court in Reed d Prince Manufacturing Company (118 F. 2d 874), "that a mere formal pretence at collective bargaining 868 DECISIONS OF NATIONAL IIABOR - RELATIONS BOARD with a completely closed mind and without-this spirit of cooperation and good faith is not a fulfillment of this duty." It appears to the Trial Examiner that in its 1950-51 negotiations with the Union the Respondent has not only contemptuously defied the 1947 congressional mandate which was directed toward employers and unions generally, but also the court of appeals order of 1941, which specifically directed officers of Reed & Prince to bargain collectively. From the Union's first approach to it after Board certification in July 1950, the Respondent has engaged in bargaining conduct which has had the clear and readily apparent intent of defeating a fundamental purpose of the Act : industrial peace. Indeed, as noted above, on September 29 management candidly challenged the Union to strike, at a time when the Respond- ent had anchored itself to a ledge from which it would not budge : never to yield its own judgment in any dispute to arbitration. Bad-faith bargaining has been the Respondent's strategy ; discernible both in its unequivocal refusal to consider as a bargainable issue the matter of checkoff, and in its 9-month failure to give the Union an answer to the simple request for permission to use plant bulletin boards for posting of noncontroversial notices. Failure to abide by its obligations under the Act and as imposed by court order is revealed in a course of conduct ranging from the use of delaying tactics, as in declining even to meet with the Union for 6 weeks or more after its certification, to putting into effect, without union approval and while other factors bearing upon wages remained as yet undecided, the increase of December 4. In short, the Trial Examiner is con- vinced and finds that, from the initial request of the Union to negotiate an agree- ment the Respondent has made "a mere formal pretence at collective bargaining with a completely closed mind." In summary, the Trial Examiner concludes and finds that, in accordance with Board certification, the Union has been at all times since July 20, 1950, the exclusive bargaining representative of all employees of the Respondent in the following appropriate unit : . All production and maintenance employees at its Worcester plant, including shipping and receiving room employees and inspectors, but excluding office em- ployees, department clerks, executives, foremen, assistant foremen, draftsmen, professional employees, guards, and all supervisors as defined in the Act. The Trial Examiner further concludes and finds that at all times since August 6, 1950,' the Respondent has failed and refused to bargain collectively in good faith with the Union as the exclusive representative of all the employees in the above- described unit. This conclusion rests not only upon the Respondent's entire course of "surface bargaining" conduct since the Union's first request to meet for negotiations,' but also upon the following specific items of its conduct: (1) Under the circumstances herein described, insisting that no negotiating meetings would be held unless attended by a stenotypist of its own choosing; (2) long and unrea- sonable delay (a) in setting a date for opening of negotiations,' and (b) in providing the Union with requested wage information ; ° (3) failure to give the Union any definite answer to certain of the latter's proposals concerning (a) use of bulletin boards, (b) recognition clause, (c) grievance procedure, (d) seniority, (e) pensions and insurance ; (4) insistence that checkoff is not a bargainable * The date is in accordance with General Counsel's amendment to the complaint made at the opening of the hearing. 5 Whittier Mills Co., 111 F. 2d 474 (C. A. 5). 9 Nearly 2 months after Board certification and Union request. ' A delay of about 3 months. Such information was needed , as the Union repeatedly pointed out to mangement , in order that it might intelligently approach the wage question, generally recognized as probably the most important provision' in a management-labor contract. REED & PRINCE' MANUFACTURING COMPANY 869 issue; 8 (5) failure to agree upon some sort of interim procedure which would have permitted employees to, be accompanied by a union representative in pre- senting and adjusting grievances before signing of a contract; ° and (6) unilater- ally granting a wage increase on December 4, 1950, during the course of nego- tiations." The evidence is convincing beyond the slightest doubt, and the Trial Examiner concludes and finds that the Respondent's refusal to bargain, an unfair labor practice within the meaning of the Act, was the direct and precipitating cause of the strike beginning on January 2, 1951, and which was still in effect at the time of the hearing. D. Back-to-work movement Despite outstanding Board and court orders, the Respondent proceeded, shortly after causing its employees to strike, to engage in conduct from which it had already ,been enjoined, by bypassing the Union and directly soliciting employees to abandon their concerted activities. On March 2, 1951, all employees on strike were sent a letter signed by Alden Reed, treasurer of the corporation, which said, in part, that "we feel that we should resume full operation," and further stated : If you do not return, the Company has no other alternative than to train new permanent employees to take the jobs which you have vacated. The emphasized quotation from Reed's letter constitutes a clear and un- mistakable threat of economic reprisal and as such is coercive. The strike has been caused by the Respondent's unfair labor practices. The strikers remain employees within the meaning of the Act. Their places may not legally be filled permanently by new employees hired during the strike." According to his own testimony active leadership in arranging for meetings of employees during the strike was assumed by Theodore H. Johnson, company paymaster and, because of his duties, clearly a representative of management in the eyes of employees generally. Johnson frankly admitted having con- tributed $50 to this movement, and having obtained the services of his brother, Charles Walter Johnson, to aid in breaking the strike. Johnson as candidly admitted that he and his brother had similarly been active in the back-to-work movement in 1937-conduct found illegal by the Board and the court. Although Johnson's testimony was evasive as to the source of funds other than as con- tributed by himself, presumably required to pay for several hotel room reserva- tions during the many weeks of the campaign, and as to why his brother came from out-of-State to take charge of the strategy, it establishes beyond doubt the paymaster's own participation in and financial support of the illegal move- ment. Johnson's testimony also implicates Donald Pierce, an expediter, as an organizer and leader of the back-to-work movement." Although Pierce's duties at the plant are such that ordinary supervisory powers may not be ascribed to,him, the Trial Examiner is convinced, and finds, that since management, by Johnson's admitted conduct and Reed's illegal threat, is plainly responsible for the back-to-work movement, it must likewise be found (1) that Donald Pierce in this movement was acting as a representative of management, and (2) that the Respondent is accountable for Pierce's conduct in this respect. 8 See footnote 7, United States Gypsum Company, 94 NLRB 112. 0It must be remembered that in July 1950, the Board had certified the Union as the exclusive bargaining representative under Section 9 (a) of the Act. io Bradley Washfountain Company, 89 NLRB 1662. T Section 2 (3) of the Act ; N. L. If. B. v. Mackay Radxo & Telegraph Co, 304 U. S. 333, 345. 12 Johnson testified that he, Pierce, and one other decided upon the first "get-together." 974176-52-vol. 96-56 870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD It is undisputed and is found that Donald Pierce, while active as above de, - scribed, told striking employee Chester Pierce that he had better come back "because Alden Reed is never going to sign a contract with the union," and that "they would rather sell the plant than sign a contract with the union." It is likewise undisputed and found that Donald Pierce used the "company" car to bring employees across the picket line during the strike. Nor is the testimony of employees credibly refuted that Foremen George Cronican and Albert Talbot personally and directly solicited employees to return to work. It is undisputed that Alden Reed authorized the use of a company vehicle as transportation to and from work for employees ceasing their concerted activity. The Trial Examiner is convinced by the preponderance of evidence, and finds that the Respondent's solicitation above described (1) constitutes an integral part of a pattern of illegal opposition to the purpose of the Act," and (2) has been conducted under circumstances and in a manner reasonably calculated to undermine the strikers' collective bargaining representative. Such conduct con- stitutes interference, restraint, and coercion of employees in the exercise of rights guaranteed by the Act. By soliciting individual employees to abandon the strike, the Respondent went over the head of their bargaining representative with which it was required to negotiate," thus persisting in its refusal to bargain in good faith with the Union and thereby prolonging the strike. IV. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with its operations described in Section I, above, have a close, inti- mate, 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 engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action which will effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively with the Union. It will therefore be recommended that the Respondent cease and desist therefrom, and also that upon request it bargain collectively with respect, to wages, hours, and other terms and conditions of employment, and if an under- standing is reached, embody such understanding in a signed contract. It has been found that an officer of the Respondent has written a letter to each of the striking employees containing a clear threat of economic reprisal. It will be recommended that the Respondent mail to each of the employees, to whom it sent the above-described letter, a copy of the notice attached hereto as Appendix A. The unfair labor practices found reveal on the part of the Respondent such a fundamental antipathy to the objectives of the Act as to justify an inference that the commission of other unfair labor practices may be anticipated. The preventive purposes of the Act may be frustrated unless the Respondent is re- quired to take some affirmative action to dispel the threat. It will be recom- mended, therefore, that the Respondent cease and desist from in any manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed by the Act. la Cat hey Lumber Company, 86 NLRB 157, enfd. 185 F. 2d 1021. 14 Ritxwoller v. N. L. R. B., 114 F. 2d 432 (C. A. 7). WEST VIRGINIA PULP AND PAPER COMPANY 871 Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following : CONCLUSIONS OF LAW 1. United Steelworkers of America, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the Act. 2. All production and maintenance employees of the Respondent at its Worces- ter, Massachusetts, plant, including shipping and receiving room employees and inspectors, but excluding office employees, departmental clerks, executives, -foremen, assistant foremen, draftsmen, professional employees, guards, and all supervisors as defined in the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 3. United Steelworkers of America, C. I. 0., was on July 20, 1950, and at all times since has been, the exclusive representative within the meaning of Sec- tion 9 (a) of the Act of all employees in the aforesaid unit for the purposes of collective bargaining. 4. By refusing to bargain collectively with United Steelworkers of America, C. I. 0., as the exclusive bargaining representative of the employees in the ap- propriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting -commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommended Order omitted from publication in this volume.] WEST VIRGINIA PULP AND PAPER COMPANY and UNITED PAPERWORKERS OF AMERICA, CIO, PETITIONER . Case No. 6-RC-848. October 16, 1951 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Joseph C. Thackery, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Reynolds and Murdock]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- 96 NLRB No. 120.