Stanislaus Implement and Hardware Co., Ltd.

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the several States, and such of them as have been found to constitute unfair labor practices 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 certain unfair labor prac- tices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action in order to effectuate the policies of the Act. The recommended order predicated on the Respondents ' refusal to bargain , during a strike, as the term "strike" is defined In the Act, is, of course, not intended to require the Respondent to bargain during strikes in violation of contracts. The order as to insurance also is not intended to require the Respondent to bargain concerning insurance changes to take effect during the term of the 1950 contract, except that such limitation does not apply to the order requiring the Respondent to furnish information on the matter. CONCLUSIONS OF LAW 1. The Respondent has violated Section 8 (a) (1) and ( 5) of the Act and has engaged in unfair labor practices within the meaning of Section 2 (6) and (7) ^of the Act by refusing to bargain with the Union while its employees were en- gaging in strikes ( slowdown and 1-week work stoppage) involving no contract infringements, by refusing to bargain with the Union concerning changes in a group insurance program , by refusing the Union's request for information rele- vant to negotiations concerning the group insurance program, and by instituting changes' in vacation payments affecting employees in the appropriate unit rep- resented by the Union without first notifying and negotiating with the Union. 2. The Respondent has not refused to bargain with the Union concerning pensions or with certain designated union representatives , within the meaning of Section 8 (a) (1) and (5) of the Act. 3. The Respondent has not discriminatorily postponed a wage increase , within the meaning of Section 8 (a) (1) and (3) of the Act. [Recommendations omitted from publication in this volume.] .STANISLAUS IMPLEMENT AND HARDWARE COMPANY, LTD. and INTER- NATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 41. Case No. 20-CA-583. November 19, 1952 Decision and Order On February 7, 1952, Trial Examiner Herman Marx 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 Inter- mediate Report attached hereto . Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. 101 NLRB No. 91. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 395 The Board 1 has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the 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, with the following additions.2 Like the Trial Examiner, we find that on and after January 1951, the Respondent violated Section 8 (a) (5) and (1) of the Act by re- fusing to bargain in good faith with the Union. In so finding, we rely upon the following considerations : (1) In negotiating about the union-shop clause, the Respondent took shifting positions, (a) at first, objecting to the Union's proposal for a union-shop clause contingent on winning a union-authorization election, because of the alleged propaganda value to the Union of such a clause in advance of such an election, (b) then, contending that any discussion even of a contingent union-shop clause before such an election was illegal, and (c) finally, after the Union had won a union- authorization election to which Respondent had agreed, the Re- spondent asserted that it would not agree to a union shop because of its opposition to compulsory union membership. (2) In March 1951, about a week before the union-shop election, Zimmerman, the Respondent's president, without prior consultation with any authorized representative of the Union, announced to the employees a general wage increase, to be effective upon approval by the Wage Stabilization Board, stressing the fact that the increase was being granted by the Respondent upon its own initiative. Such uni- lateral action, particularly after the Respondent had refused in its negotiations with the Union to agree to any wage increase, is the antithesis of good faith bargaining. (3) Although the Union on July 23, 1951, proposed resumption of negotiations, the Respondent took no action on this proposal until the end of October. When meetings were finally arranged for No- vember 15 and 16, the Respondent's officers failed to attend, without any convincing explanation, thus rendering the meetings abortive. (4) On July 23, 1951, and again on July 27, 1951, in connection with its request for resumption of negotiations, the Union asked Re- spondent for a list of its current employees with their classifications and rates of pay. The Respondent, on each occasion, indicated that this request would be referred to its president, but the information '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 Mem- bers Styles and Peterson]. 2 The Intermediate Report contains a typographical error which is corrected as follows : In footnote 30, the citation for Burnstde Steel Foundry Company should be 89 NLRB 128, 136. 396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought was not furnished to the Union, nor was any reason given for not furnishing it. The Board has frequently held that such informa- tion is necessary to enable a union to bargain effectively, and that the withholding of such information by an employer is incompatible with good faith bargaining .3 (5) On November 23, 1951, shortly after the Respondent had failed to attend bargaining conferences, Baxter, the Respondent's repre- sentative, stated to the Union's representative that the Respondent would "stall" the Union for a year and then "have a decertification election" among the Respondent's employees. All the foregoing circumstances, as more fully detailed in the Inter- mediate Report, convince us that the Respondent approached the bargaining table, not with a sincere desire to resolve its differences with the Union, but with a purpose merely of engaging in protracted and meaningless surface bargaining, hoping by such conduct to under- mine the Union's status as the representative of the employees. Re- spondent's conduct thus did not satisfy the statutory requirement of good faith bargaining. Order Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that Stanislaus Hardware and Imple- ment Company, Ltd., of Modesto, California, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Failing or refusing to employ any individual, or otherwise discriminating against him, because he has filed a charge with the Board or because the Respondent believes that such individual has filed a charge or is responsible for such filing. (b) Failing or refusing to bargain collectively in good faith with International Association of Machinists, District Lodge No. 41, as the exclusive representative of all of the employees in the Respondent's place of business at Modesto, California, who are employed in the tractor, welding, implement, and pump shops, including the truck driver and janitors in these shops, but excluding all other employees, assistant foremen, and all other supervisors as defined in the Act. (c) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right of self-organization, to form, join, or assist labor organizations, to join or assist International Association of Machinists, District Lodge No. 41, to bargain collec- tively through representatives of their own choosing, and to engage in E See The Electric Auto-Lite Co., 89 NLRB 1192 , 1197 ; Yawman & Erbe Mfg . Co.. 89 NLRB 881 , and cases there cited. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 397 concerted activities for the purpose of collective bargaining or other mutual air or protection, and to refrain from any or all of such activi- ties, except to the extend that such right may be affected by an agree- ment requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action, which we find will effectu- ate the policies of the Act : (a) Offer Joseph B. Sims immediate employment as a mechanic's helper in the tractor shop or a substantially equivalent position, in- cluding, but without limitation thereto, the position of helper in the implement shop or pump shop, without prejudice to his seniority rights and privileges; and make him whole in the manner set forth in section V of the Intermediate Report, entitled "The Remedy." (b) Upon request, make available to the Board or its agents, for examination and copying, all payroll records, social security payment records, time cards, personnel records and reports, and all other records necessary to analyze the amount of back pay due. (c) Upon request, bargain collectively in good faith with Inter- national Association of Machinists, District Lodge No. 41, as the exclusive representative of the employees in the appropriate unit described above with respect to lawful requirements that they join the Union, rates of pay, wages, hours of employment, and other con- ditions of employment, and if an agreement is reached, embody it in a signed agreement. (d) Post at its place of business in Modesto, California, copies of the notice attached to the Intermediate Report marked "Appendix A."' Copies of said notice, to be furnished by the Regional Director for the Twentieth Region, shall, after being signed by the Respondent's representative, be posted by the Respondent, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices, are not altered, defaced, or covered by any other material. (e) Notify the Regional Director for the Twentieth Region in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply therewith. This notice shall be amended by substituting in the caption thereof the words "A Deci- sion and Order" for the words "The Recommendations of a Trial Examiner." If this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting for said words "A Decision and Order" the words "A Decree of the United States Court of Appeals, Enforcing an Order." Intermediate Report and Recommended Order STATEMENT OF THE CASE On April 30, 1951, International Association of Machinists , District Lodge No. 41, filed a charge with the National Labor Relations Board against the Stanis- 398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laus Implement and Hardware Company, Ltd' The Union thereafter filed two amendments to the charge, the first on July 16, 1951, and the second on Decem- ber 17, 1951. Based upon the charge and the amendments hereto, the General Counsel of the Board, on December 27, 1951, issued a complaint alleging that the Respondent had engaged in and was engaging in unfair labor practices affect- ing commerce within the meaning of the National Labor Relations Act, as amended (61 Stat. 136-163), referred to herein as the Act. The Respondent has been duly served with copies of the charge, amendments thereto, and the complaint. The significant substance of the complaint is that the Respondent, in violation of Section 8 (a) (1) and 8 (a) (5) of the Act, has unlawfully failed and refused to bargain with the Union as the duly designated representative of an appro- priate unit of the Respondent's employees; and has violated Section 8 (a) (1) and 8 (a) (4) by failing and refusing to rehire Joseph B . Sims ( on occasion re- ferred to as Joe B. Sims), a former employee, because a charge was filed in a prior proceeding alleging that Sims had at one time been discriminated against by the Respondent. The Respondent has filed an answer 2 in which, in substance, it denies the commission of any unfair labor practices and alleges that it has bargained in good faith with the Union and that it did not fail or refuse to re- hire Sims for the reason alleged in the complaint. The answer admits relevant allegations of the complaint describing the Respondent's interstate opera- tions, the Union's status as a labor organization, the composition of an appropriate bargaining unit of the Company's employees, and the Union's certifi- cation by the Board, after an election, as the duly authorized bargaining repre- sentative of the unit. These admissions will be appropriately reflected in findings made below. Pursuant to notice duly served upon all parties, a hearing was held before me, as duly designated Trial Examiner, at Modesto, Calfornia, on January 15, 16, and 17, 1951. All parties were represented by counsel, participated in the hear- ing, and were afforded a full opportunity to be heard, examine and cross-examine witnesses, adduce evidence, submit oral argument, and file briefs. At the close of the General Counsel's case-in-chief, the Respondent moved to dismiss the com- plaint. The motion was denied. The motion was renewed after the close of the evidence. Decision on that motion was reserved for disposition in the Inter- mediate Report. The findings and conclusions set out below require a denial of the motion, and it is hereby denied. The parties waived the submission of oral argument and have not filed briefs. Upon the entire record in the case , and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent is a California corporation and is engaged, at Modesto, California, in the business of selling hardware and farm machinery, implements, 1 The National Labor Relations Board will be designated herein as the Board : Interna- tional Association of Machinists , District Lodge No. 41, as the Union ; and Stanislaus Implement and Hardware Company, Ltd., as the Respondent or Company . References herein to the General Counsel of the Board , where applicable, include the attorney who appeared in his behalf at the hearing. 2 Section 102.21 of the Board's Rules and Regulations, Series 6, provides that an answer "shall be . . . signed and sworn to by the respondent or by a duly authorized agent with appropriate power of attorney affixed." The answer filed herein was signed by W. M. Caldwell , an individual , on behalf of California Association of Employers, whose name appears at the foot of the answer in a signatory capacity as the Respondent' s repre- sentative. The answer is unsworn and no power of attorney is affixed . In the absence of any challenge to the form of the answer, I have treated it as though it conformed to the requirements of the Rules and Regulations. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 399 and parts , at retail, and in servicing and repairing machinery and implements. During the calendar year 1950, in the regular course of its business, the Respondent purchased merchandise valued in excess of $450,000. Such goods were produced by manufacturing concerns located outside the State of California, shipped to distribution points of such companies within the said State, and thence reshipped to the Respondent's place of business in Modesto. During the same period , in the regular course of its business , the Respondent sold for shipment from its said place of business to points outside California, merchandise valued at more than $25,000. I find that at all times material herein, the Respondent was engaged in interstate commerce and that its operations affected interstate commerce , within the meaning of the Act' II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists, District Lodge No. 41, is a labor organization which admits to its membership persons employed by the Respondent. III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory statement In a Decision and Direction of Election (91 NLRB 618) dated October 3, 1950, the Board described the composition of an appropriate collective bargain- ing unit of the Respondent's employees and directed an election among them to resolve a question of representation. In an election which followed, a majority of the employees in the unit voted to designate the Union as their collective bargaining representative. On December 22, 1950, the Board certified the Union as the exclusive bargaining representative of the unit. The Union and the Respondent thereafter engaged in negotiations which will be described in some detail below. Based upon the Board's Decision and Direction of Election, I find that all employees in the Respondent's place of business who are employed in the tractor, welding, and implement and pump shops, including the truck driver and janitors in these shops, but excluding all other employees, assistant fore- men, and all other 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. It is also found that since the issuance of the certification, the Union has at all times been the exclusive collective bargaining representative of the appropriate unit within the meaning of Section 9 (a) of the Act. There has been a prior unfair labor practice proceeding against the Respondent in Case No. 20-CA-512, and some reference to it is appropriate at least as background of the allegations relating to Sims. In that case the complaint alleged that on various occasions in 1950, the Respondent had, in contravention of the Act, interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act, and had discriminatorily laid off Sims on June 27, 1950, and thereafter refused to reinstate him, because he had engaged in union activity. The Respondent in its answer denied that it had engaged in the unlawful conduct attributed to it. After a hearing upon the issues, a Trial Examiner in an Intermediate Report dated April 20, 1951, found that the Respondent had violated the Act, by interrogating employees concern- ing their union activities ; offering them inducements to refrain from union ,activity or to oppose unionization ; threatening and warning them that benefits would be withdrawn and other reprisals visited upon them if they engaged in 2 See, also, 91 NLRB 618 and the Board's order in Case No. 20-CA-512 (unreported). 400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union activity ; suggesting to an employee that he engage in espionage for the Company at a union meeting ; and announcing a general wage increase shortly before the representation election in order to influence the votes of the employees. The Examiner found that Sims was not "laid off or discharged" because of "his union affiliation or activities, but was released because of slack business condi- tions and in order to enable him to accept other employment that had been offered him." The Examiner recommended to the Board that it enter an order directing the Respondent to cease and desist from the unlawful conduct in, which it had engaged, and dismissing that portion of the complaint which alleged, that Sims had been discriminatorily laid off and denied reinstatement. No ex- ceptions were filed to the Intermediate Report, and on May 17, 1951, the Board entered an order adopting the findings, conclusions, and recommendations of the Examiner. B. The bargaining negotiations and related events The Union, and the Respondent held their first negotiating meeting on January 3, 1951. The Union was represented by John Alcamo, its business representative, and the RE spondent by Henry Zimmerman, president of the Company, and Theo- dore Haug.l, a representative of an organization known as the California Associa- tion of Employers (referred to herein as CAE), of which the Respondent is a member. There is some question, because the evidence is conflicting, whether Clifton Roi Aker, the firm's secretary-treasurer, attended the first meeting, but it is undisputed that Rooker attended all the subsequent negotiation meetings. Zimmerman, who appears to have complete control of the Respondent's person- nel and business policies, attended about half of the bargaining conferences. Both at the first negotiating meeting and at those which followed, Alcamo and Haugh were the principal spokesmen for their respective sides. At the first meeting Alcamo gave Haugh and Zimmerman copies of a pro- posed agreement "in order to start negotiations," as Alcamo put it. The meet- ing was exploratory in nature and was devoted principally to a reading of the agreement by those present and an explanation of some of its terms by Alcamo. No agreement was reached on that occasion on any of the provisions of the pro- posal. Either at that meeting or at the one which followed (January 10), Haugh informed Alcamo that agreement by the Respondent with respect to any clause was to be regarded as tentative and was "not to be effective until if andi when we actually executed the entire contract." Alcamo stated that his agreements were to be regarded as tentative and subject to "final approval" by the vote of the membership of the Union. All told, the parties met for negotiations on seven or eight occasions In, January; three times in February, twice in April, and once in May.' During the negotiations, whether in a form proposed by the Union or counterproposed by the Respondent, the parties expressed tentative agreement on most of the subjects under negotiation. It would serve little or no purpose to review the voluminous evidence bearing on the areas of tentative accord or to give separate consideration to each paragraph of the Union's proposal and how it fared dur- ing the lengthy discussions between the parties. In my judgment, for reasons that will appear, the key to the Respondent's motivation may be found in the course the negotiations took on at least one issue (the union-shop proposal) 4 llaugli testified that the parties met on -January 11. Alcamo denied it. It is unneces- sary to resolve the issue, since it is relatively unimportant. 0 Alcamo also met with Larry Baxter, a representative of CAE, on November 15 and 16, 1951, but, as will appear below, no bargaining negotiations occurred on these occasions. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 401 on which no accord was ever reached and in a pattern of conduct in which the Respondent engaged both during the negotiations and after their termination. The Respondent's employees went on strike on April 20, 1951. The last nego- tiating meeting prior to the strike was held on April 19. As of that date, the parties were in disagreement on the Union's proposals concerning (1) a union shop, (2) premium pay for Saturday work, as such, (3) the establishment of two or three a classifications in addition to those established during the negotia- tions, and (4) wage rates for two classifications. Much, if not most, of the controversy arising from the unresolved issues focused upon the union-shop proposal. The union-shop proposal is contained in section I, paragraph 1 (b) and (c) of the proposed agreement. In essence, it provides that employees shall become members of the Union within 30 days of their employment, that they remain members as a condition of continued employment, and that the Company termi- nate the employment of any employee who fails to join the Union within the prescribed period or to pay "regular initiation fees or dues." The effectiveness of these provisions is made contingent upon their subsequent authorization by the employees in an election, as required by the then existing provisions of the Act. The following is a summary of Alcamo's version of the principal features of the union-security negotiations : At the meetings held on January 10 and 17, Haugh objected to the inclusion of the union-security clauses in the proposed agreement, expressing the view at the latter meeting that if the applicable pro- visions were included, the Union would seek to gain votes in an authorization election by telling employees that the Company by signing the agreement showed that it favored a union shop. At both meetings Alcamo proposed, as an alter- native, that the clauses at issue be deleted from the proposed agreement and placed in the form of a letter from the Company. On both occasions Haugh re- sponded that he had no serious objections to the proposed alternative, and at the January 17 meeting he stated that he would discuss the proposal with Zim- merman. During the course of the next few meetings, Alcamo assumed that such a letter would be forthcoming! At the meeting of February 5, Haugh informed Alcamo that a few days earlier, at one of its staff conferences, CAE had adopted "a new policy that in the future there would be no discussion on union security," prior to an authorization election, and had taken the position that "it was illegal to discuss" such matters before an election. Alcamo expressed displeasure at the turn the Company's position had taken, inasmuch as CAE had negotiated union-security provisions under similar circumstances for other companies. At $ According to Haugh , the disputed classifications were those of welder specialist , black- smith, and painter. Alcamo's testimony is that the Respondent agreed to the establish- ment of the painter classification and that the classifications that the Company refused to establish were those of assemblyman -repairman and blacksmith . Although the record is not clear, it is not unlikely that Haugh and Alcamo had the same occupation in mind in their respective references to welder specialist and assemblyman -repairman . If that is so, the only conflict in their relevant testimony is whether they agreed to the establish- ment of a painter classification . The conflict is of little importance , and the divergence in classification terminology has no significant bearing on the vital issues in the case. 4 Alcamo seems to have based his assumption upon Haugh's demeanor and upon the latter's statement that he had no "serious " objection to the alternative proposal. Harry Werner, a business representative of the Union who accompanied Alcamo to the meeting of January 31, testified that on that occasion Haugh agreed to furnish such a letter. Alcamo's description of that meeting makes no reference to a discussion of the proposed letter. Alcamo impressed me as a reliable witness, whereas I thought that Werner's recollection of other features of the meeting was infirm . I do not credit Werner's claim that Haugh explicitly agreed to the alternative proposal on January 31. 402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the meetings of February 6 and 12, Haugh adhered to his refusal to agree to the union-security proposal either in the proposed agreement or in the form of a letter. At the February 12 meeting, Alcamo asked Haugh if the Company would consent to the holding of a union-authorization election. Haugh replied that it would do so and at Alcamo's request gave the Union a letter to that effect. The parties agreed to defer further meetings until after an election. The next meet- ing was held on April 13, after a majority of the employees had voted in an elec- tion to authorize the Union to enter into a union-shop agreement$ During the course of the meeting, Haugh told Alcamo that he was "having a hell of a time" with Zimmerman (who was absent) and that he did not believe that Zimmerman "would ever agree to sign." Haugh coupled his assertion with a statement that it was "off the record" and that, if the occasion arose, he would deny that he had ever made such a statement. At the meeting that day, Haugh for the first time stated that the Company would "not sign any contract with a clause in it that would compel any employee to become a member of the union." Alcamo reproached Haugh for having waited so long before expressing that position, asserting that the Company should have announced the policy earlier so that the Union would have known "what position to take." Alcamo also questioned the "sense" of holding the election. The negotiators then proceeded to discuss other matters at issue. At the next meeting, held on April 19, the Company's representatives were informed that the employees had voted to strike and would do so unless the issues separating the parties were resolved. Haugh reiterated the position with respect to a union shop, which he had expressed at the previous meeting. The parties were unable to reach any agreement on union security and other disputed issues, and on the following day, the Respondent's employees went on strike.9 Haugh was the Respondent's principal witness with respect to the negotia- tions. As he also appeared as the Respondent's trial counsel at the hearing, his direct examination was given in narrative form. His account of the union- shop discussions accords with that of Alcamo in some respects and differs sub- stantially in others. It is unnecessary to dwell upon the points of agreement. The following is a summary of relevant testimony given by Haugh with respect to the union-shop discussions and reflects the significant differences between his account and that of Alcamo. At the meeting of January 10, Haugh told Alcamo that the union-shop pro- posal was "not acceptable until an election" and that he objected to, and did not "like," the proposed clauses because they were made contingent upon the outcome of a union-authorization election. When the proposal came up for discusion on January 17, Haugh stated that he "didn't like to agree to any union security in advance" of an election because it enables a union to use the agreement as a means of persuading employees to approve a union shop in an election, whereupon Alcamo proposed the use of a letter containing the union- shop clauses as an alternative to their inclusion in the agreement, pointing out that both he and Haugh knew of instances where that had been done. Haugh rejected the alternative suggestion on the ground that the Union "could use the letter just like they could the contract." During the meetings held on February 5, 6, and 12, Haugh reiterated his opposition to a union-shop agree- 8 It was stipulated at the hearing, and I find, that the election was held on March 23, 1951, and that the Board, on April 12, 1951, duly issued its certificate to the effect that a majority of employees in the unit had voted to authorize the Union to enter into a union-shop agreement. g The parties met briefly on May 15 at the instance of the State Conciliation Service. They reiterated adherence to their respective positions, and no issues were resolved. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 403 ment made contingent upon the results of an election. On February 12, as on prior occasions , he said that the Respondent would consent to a union-shop election and gave Alcamo a letter to that effect. At the meeting of April 13, the first after the election, he informed Alcamo that the Respondent would not agree to a union shop because "we did not believe in compulsory unionism and did not intend to agree to any provision that would require any employee to belong to a union." Alcamo continued to insist upon a union shop, although Haugh stated that the Respondent "might go for [a] maintenance of member- ship" provision 1* Haugh denied that he stated that he would discuss the alternative proposal of the letter with Zimmerman; that he made "off the record" statements con- cerning his "difficulty" with Zimmerman and his (Haugh's) belief that the Company's president would not sign an agreement; and that he told Alcamo that CAE had, a few days prior to the meeting of February 5, adopted a "new policy" that it was illegal to "discuss" a union-shop proposal in advance of a union-shop election. However, Haugh stated under cross-examination that it was his personal construction of the Act that discussion of a union shop prior to an election was unlawful, and he admitted telling Alcamo that "dis- cussion of the union security clause . .. was possibly illegal, that the union had no right to ask for it until after there had been an election." Haugh did not state when he made these remarks to Alcamo. Various factors in Haugh's testimony, as well as his demeanor at certain points in his account, militate against acceptance of his version of the union- shop negotiations., An evasive flavor and significant self-contradiction appeared in his testimony when he was interrogated concerning the period when the Respondent first reached a decision not to agree to a union shop. As already noted, it was not until April 13 that the Respondent for the first time definitively told the Union that it would not agree to a union shop. This position was not stated until almost 3 months after the negotiations opened, after approx- imately a dozen meetings had been held, and after the Government had gone to the expense, and the parties had taken the time and trouble, of holding an authorization election. It thus became pertinent to inquire as to the point at which the Respondent had reached a decision not to agree to a union shop. The following excerpts from Haugh's testimony (with emphasis supplied) are revealing : Q. Now, at what point had the company reached the decision not to agree to a union security provision, Mr. Haugh? A. That's hard to answer. I had some conferences with Mr. Rooker and Mr. Zimmerman, in which that question was discussed after it became a major issue in the negotiations. I am not certain when the first time was, but I do know it was in the early stages. We didn't discuss it, because I said, "That is not an issue until there is an election." I said, "until after an election we won't talk about it. If they get an election and we have one, and they win it, then we will have to talk about it." But whether it was during that period that Mr. Zimmerman and Mr. Rooker told me that they would not sign anything that would force any of their employees to join a union if they didn't want to, I don't know. That is the language they used to me. 10 In the light of findings made below, I am unable to conclude that this was a firm offer, as Haugh claimed at the hearing. Moreover, the language used is not that of a firm offer, and Baugh testified that he "just threw it in" because he did not expect Alcamo to accept the proposal. 242305--53-27 404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. Well, was that position taken before the union authorization election was held? A. No, there wasn't any position taken on it. * * * * s * * Q. Well, did Mr. Zimmerman or anyone else representing management tell you that the company would not agree, as you put it, to any arrange- ment whereby an employee would have to join a union? A. Yes, sir. Q. Well, was that position given to you before the union authorization election was held? A. Not as I recall, because we didn't discuss it. That phase of it, whether or not we would sign one, wasn't an issue until there had been an election, and I don't recall discussing it or getting any instructions from Mr. Zimmer- man on it until after the election, because I had taken the position that we wouldn't discuss it and we wouldn't sign the one proposed, wouldn't discuss it until after an election. TRIAL EXAMINER MARX : Well, it is your position that you didn't discuss it with the company prior to an election, what the company' s position was on signing a union security provision? THE WITNESS : Oh, no. We discussed it, but I don't recall any occasion when Mr. Zimmerman told me that he wouldn' t sign anything requiring union membership until after the election. Until that time I didn't give the ques- tion of whether or not we would sign a security clause, whether it be the one proposed or another one, I didn't give that too much consideration because I wasn't interested in talking about it. We did have a conference after the election. I said, "Now we are right up against it. We have got to make up our minds what we are going to do with this clause." Mr. Zimmerman said he wouldn't sign anything that required a man to join a union if he didn't want to. Q. (By Trial Examiner MARX.) And you are certain that he never told you anything of the sort prior to the election? A. No, I don't. I recall no discussion of that particular point prior to the election. The emphasized portions of the quoted excerpts reflect repeated self-contra- dictions on the question whether Haugh had, prior to the election, discussed the Company's position on a union shop with its management officials. Moreover, it is difficult to believe that he would be unable to recall whether the Company reached its conclusion concerning the union-shop proposal before the election. Against the background of Haugh's demeanor while giving the quoted testimony, the self-contradictions and the evasive flavor of his responses to what is basi- cally a simple, but important, question impel me to the conclusion that the witness was considerably less than frank in responding to efforts to shed some light on the subject at issue. Another illuminating feature of Haugh's testimony may be noted. During his cross-examination he expressed the conviction that as the Act stood at the time of the negotiations it was illegal even to discuss a union-shop proposal at bargaining negotiations prior to an election." If he actually entertained that "'Under cross-examination , Haugh admitted the possibility that he had on another occasion negotiated concerning a union shop prior to an election , although he stated he did so because the employer involved would not follow his advice. In connection with Haugh's construction of the former provisions of the Act, which provided for union-shop elections, it may be noted that the Board has repeatedly held that it was not illegal to STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 405 belief, it seems strange that nowhere in his narrative account of the negotiations on direct examination does it appear that he expressed such a position to Al- camo. Be that as it may, although Haugh denied that he told Alcamo that the relevant construction of the Act was CAE's "new policy ." " the significant fact is that he did express such a statutory construction to Alcamo for the first time after the parties had had seven or eight meetings." Haugh's failure to make any reference, during his direct examination, to this meaningful phase of the negotiations contributes to my impression that his testimony was lacking in frankness. Because of my impression of Haugh and the infirmities in his testimony, I am unable to credit his version of the union shop negotiations. Alcamo im- pressed me as a forthright witness, and I credit his account of the negotiations and of the statements he imputes to Haugh" The Respondent's claim of good faith may be measured not only by its course of conduct during the negotiations 15 but by a series of events which occurred away from the bargaining table. In March, about a week before the union-shop election, and while the negotiations were suspended pending its outcome, Zimmerman and Rooker approached an employee, Roscoe Larkin, while he was at work and invited him to join them for coffee. Larkin left his work and went with Zimmerman and Rooker to a nearby restaurant. There Zimmerman asked Larkin If he thought the Union would have any objection to a 10 percent general wage agree to a union-shop provision and make its effectiveness contingent upon the outcome of an election. See Snyder Engineering Corporation, 90 NLRB 783; West End Chemical Co., 89 NLRB 611; Barium Steel and Forge, Inc., 88 NLRB 564; Asplundh Tree Expert Co., 92 NLRB 1013; Schaefer Body, Inc., 85 NLRB 1247; Hazel Atlas Glass Co. and Clarksburg Paper Co., 85 NLRB 1305; Allen V. Smith, Inc., 96 NLRB 230; Hunt Coa- struction Co., 9C NLRB 814. "Larry Baxter, a staff member of CAE (he succeeded Haugh as its representative in the Modesto area, denied that there had been discussion at a CAB meeting of the "new policy" and that the organization has "any policy with reference to union security clauses." It may be pointed out that Alcamo made no claim that CAE had adopted the "new policy" at the meeting. His testimony was that Haugh had told him about it, and the issue therefore is whether Haugh had done so. Moreover, as will appear below, Baxter gave other testimony which I do not credit. 's Haugh nowhere fixes the date when he informed Alcamo of his legal position. Putting aside for the moment the form in which Haugh expressed his statutory construction to Alcamo, I have no doubt that he did so on February 5. 14 According to Rooker, Haugh took the position at the January 10 meeting that the Respondent, would not agree to a contingently effective union-shop provision. Rooker expressed the belief that Haugh adhered to that position throughout the negotiations. Rooker kept no record of what occurred at given meetings. He appeared uncertain whether he had attended all the meetings after the first, and he gave the impression that his recollection was faulty. Moreover, at no point in his testimony is there any reference to the important point that Haugh took the position, after the negotiations had been underway for a substantial period, that it was illegal to discuss the union-shop pro- posal prior to an authorization election. I do not credit the implication of Rooker's claim that Haugh clearly and consistently refused, prior to February 5, to agree to. a contingently operative union-shop clause in any form. 15 Before proceeding to a consideration of other evidence bearing on the Respondent's good faith, one more feature of the negotiations may be mentioned. The Union's vacation proposal incorporated the vacation benefits the employees already enjoyed. At the second meeting, however, Haugh proposed that the Union agree to a reduction in the vacation privileges already in effect. The Union's proposal was subsequently adbpted. Haugh explained at the hearing that since the Union had proposed "some things . . . that they don't expect to get," he had decided that his proposals would be such, as to give hint some "trading cloth." In view of findings made below, it is unnecessary to pass on the credibility of Haugh's explanation, although it may be noted that proposals for a reduc- tion in existing economic benefits are often devices used to undermine a bargaining union's standing with employees. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase effective on May 1. Zimmerman also stated that he realized that the employees "were not making much and (that) the cost of living was going up." Larkin replied that he did not believe that the Union would object to the increase. Zimmerman then asked Larkin if the latter thought that the Company should announce the increase at that time or "just let it go." Larkin responded that he "thought it would be a good idea to announce it" at that time. Rooker concurred and said he would call a meeting of the employees for the evening. At quitting time that day the management assembled the employees in Zimmer- man's office . There Zimmerman addressed them for about a half hour, gen- eralizing about the Company's growth and business conditions, explaining that a reduction in force the concern had made sometime before had been necessitated by business losses, and asserting that the firm had begun to make a profit "overnight" because of the Korean war, that he realized that the employees "needed more money" because the cost of living was rising, and that all employees would be given a 10 percent increase effective May 1, provided that the Wage Stabilization Board approved. Zimmerman also intimated that the Union "had no part in" the increase. As he put it to the employees, "we were doing it on our own." 16 Larkin had been employed by the Respondent as a mechanic for about 21A years. He was a member of the Union, but held no office, served on no com- mittee, and did not participate in the negotiations. Zimmerman testified that his reason for approaching Larkin was that "we recognize Mr. Larkin as kind of head of the union." Terming Larkin as "kind of an organizer for the union," Zimmerman stated that "every time [Larkin] got in the shop he wouldn't be on the job, he would be talking with someone about the Union." According to Zimmerman, he knew of Larkin's activities because "I could get up behind him [Larkin] and hear what was going on, and some of the boys told me what he was saying." At the time of his conversation with Larkin, Zimmerman knew that Alcamo was the Union's business agent and that he had been handling the negotiations for the Union. Zimmerman had attended a number of the meetings, and Booker practically all of them, and both management officials were obviously aware of the fact that Larkin had not participated in the negotiations and that Alcamo was the Union's spokesman. Zimmerman was asked at the hearing whether he had discussed the proposed increase with Alcamo, and he replied with evasive demeanor, "I believe that we talked it over once, but I wouldn't say for sure. It seems to me we talked it over once, and I think if we did, be made the same statement, to my recollection, as the other man, that the unions weren't opposed to the employees getting more money. I wouldn't swear to that, and I am not going to say that is definite." Upon further interrogation, the witness subsequently agreed that he could not recall discussing the proposed increase with anybody connected with the Union but Larkin. In the light of the fact that the Union is located in Modesto, that Alcamo resides there, and that Zimmerman was fully aware of the negotiations and Alcamo's role in them, one may well question the credibility of Zimmerman's explanation of his reasons for approaching Larkin, particularly when measured by his evasive treatment of the question whether he had discussed the increase with Alcamo. In that regard, it may be noted that during the preceding negotiations with the Union, the Respondent had refused to agree to any 16 Findings with respect to the conversation with Larkin and the subsequent meeting are based on a synthesis of testimony given by Larkin and Zimmerman. There is no significant difference in their respective versions. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 407 Increases, and the Union finally agreed to wage scales for all but two classifica- tions (apparently involving two employees), which were the same as those already in effect in the establishment (the rates for the two classifications were still under discussion when the negotiations ended). Against the background of the bargaining meetings, the timing of the announce- ment, the setting in which it was made, and the methods used to make it, I find that the Respondent's motivation was to bypass the Union and to influence the votes of the employees in the authorization election" The complaint does not charge that the preelection announcement violated the Act. However, the methods used by the Respondent to bypass the Union and to defeat its efforts to secure a union shop are clearly relevant to the question whether the Respond- ent brought good faith to the bargaining table. The methods employed, during the period of the negotiations, in the attempt to remove the union-shop issue from the area of negotiation contribute to the conclusion that the Respondent did not bargain in good faith. On July 23, 1951, several months after the strike began , the Union wrote a letter to the Respondent, expressing a desire to resume negotiations and request- ing that the Company furnish the Union before such a resumption with a list of the "present employees with classifications and rates of pay." The Respondent replied on July 24, 1951, to the effect that Zimmerman was out of town, that he was expected back in 2 weeks, and that upon his return the Union 's letter would be referred to him. The Union wrote again on July 27, noting that Zimmerman was away, but renewing its request for the information sought previously. The Company replied on July 31 to the effect that it did not feel free to furnish the information until Zimmerman 's return and that as soon as he did so, the Union's letters would be referred to him. This letter ended the correspondence. The Respondent did not furnish the information requested , nor did it communicate with the Union about the matter after Zimmerman's return. Rooker, who wrote the Respondent's letters, testified that Zimmerman was away for about a month after the last letter was written , and he expressed the belief that he discussed the correspondence, "but we took no action," he ex- plained, "because we had been counselled in it and told what steps to take by the California Association of Employers. Their representative [Haugh] knew of the letters and we simply postponed action on them until we were counselled to take that action." According to Rooker, CAE gave the firm "no further advice on this particular subject." Haugh stated that he helped Rooker write the Company's letters and "Just completely overlooked replying to that letter or discussing it" with management officials because he was in the process of moving to southern California about the time Zimmerman returned. On October 1, 1951, one Larry Baxter succeeded Haugh as CAE representa- tive in the Modesto area. Baxter agreed that Haugh "attempted" to orient him fully concerning the Respondent's transactions with the Union, as well as the contents of CAE's files. Baxter, however, denied that he had ever seen copies of the correspondence or was aware of its existence. Toward the end of October, Baxter asked Alcamo to meet with him to attempt a disposition of the controversy between the Union and the Respondent (the 17 It may be noted that in the prior proceeding against the Respondent , it was charged with the announcement of a wage Increase shortly before the representation election. The Board, by adopting the Trial Examiner's findings, held that the announcement was designed to prevent the organization of the employees and thus violated Section 8 (a) (1) of the Act. The preelection announcement involved in the prior proceeding was essen- tially of the same pattern as the one made before the union-authorization election. The same motivation sponsored both announcements. 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD strike was still in progress). Alcamo agreed and Baxter stated that he would arrange such a meeting with the management 15 Arrangements were then made for a meeting in Baxter's office on the afternoon of November 15. Baxter notified both Zimmerman and Rooker and was told that one or the other would be pres- ent. Alcamo came at the appointed time and remained for an hour or longer, but neither Zimmerman nor Rooker appeared. Baxter telephoned the Respond- ent's establishment but was unable to reach either individual.' According to Alcamo, he and Baxter held no discussion "whatsoever .on our contract because Mr. Baxter wanted to wait" ( for Zimmerman or Rooker). Al- camo asserted that Baxter evidenced embarrassment because of the nonappear- ance of either of the Respondent's officers, that he and Baxter made an appoint- ment for a meeting at 2 p. in. on the following day, and that the CAE represent- ative promised that Zimmerman or Rooker or both would be present. The next day at the appointed time, Alcamo testified, he came to Baxter' s office and waited for Zimmerman or Rooker for about three-quarters of an hour, but neither appeared. According to Alcamo, Baxter "again told me he was embarrassed and he said he would have to get at the bottom to find out what the hell was cook- ing, and he told me he would arrange a later meeting." Baxter testified that he and Alcamo discussed the union-security and week-end premium pay issues at the November 15 meeting, that each reiterated his prin- cipal's previous positions, and that neither offered any counterproposal. He denied making an arrangement to meet the following day and stated that he and Alcamo did not meet on November 16, asserting that on that day he met a representative of a cannery union in the morning and with some automobile dealers at noon ; that the latter meeting lasted until 2 p. m.; and that after the second meeting he left for his home in Fresno. There is substantial reason to doubt that there was any discussion of issues between Alcamo and Baxter on November 15. Baxter stated that they also dis- cussed a controversy involving another employer, R. B. MacBride Company, and it is probable that business discussions were substantially confined to that con- cern. The conceded facts are that Baxter had only recently arrived in the area and was a newcomer to the controversy ; that he had been informed by Zimmer- man that he or Rooker would attend ; that he waited for and expected one of the Company's officers to appear, putting in one or more telephone calls to the Respondent's place of business to ascertain why neither had appeared ; and that, as he put it, he "held no power of attorney" to dispose of any issue with the Union. Be that as it may, the more important question is whether an appoint- ment was made for the next day and whether the meeting on that occasion took place. It may be noted in that regard that Baxter concedes that he told Alcamo, ae On direct examination , Baxter stated that he made the arrangements with Alcamo on the telephone He denied that he made any mention on the telephone of who would be present. It is not clear however whether he told Alcamo on some other occasion that the meeting would be arranged with the management. In fact, at one point in his testimony he stated that he could not recall whether he had prior to Alcamo's visit informed the latter that he anticipated the presence of Zimmerman or Rooker. In any event, it is undisputed that he expected one or the other at the meeting. "According to Baxter, Rooker returned his call, but it does not clearly appear whether he did so while Alcamo was in the office. Baxter asserted that Rooker expressed his regrets, stated that he had been detained by business, and proposed that another meeting be arranged Baxter also testified that he told Alcamo about Rooker's call, but it does not clearly appear that he did so while Alcamo was in the office waiting for a representative of the Company to attend. It may be that Baxter told Alcamo about the matter later. in view of the subsequent events, I am unable to accord any significant weight to Baxter's version of Rooker's alleged call, particularly as Rooker, although called as a witness, gave no explanation of his failure to appear. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD . 409 when Zimmerman and Rooker failed to appear on November 15, that another meeting would be held. Thus either Alcamo is telling the truth that a meeting was held or Baxter did not keep his word that another meeting would be arranged (it is undisputed that there was no meeting after November 16)?° Moreover, there is evidence of evasiveness and a faulty recollection in Baxter' s testimony. For example, in view of his statement that he had promised Alcamo on Novem- ber 15 that another meeting would be arranged, he was asked what he did to arrange such a meeting. He replied, "No definite time was set, if that is what you mean." He was told that that was not what was meant, and the question was repeated. He then stated, "I contacted the Stanislaus Implement Company, and due to the fact that the holidays were in the offing, no time was set at that particular time for a specific meeting." Asked if he communicated that informa- tion to Alcamo, he replied, "I don't recall," although at one point in another con- nection he stated that even with respect to the date of a telephone conversation he could support his recollection from daily reports he submits to CAE. Baxter's explanation does not explain why no meeting was arranged after the holidays, and the fact is that no date was set for a meeting either "at that particular time" or at any other time. Another feature of the evidence adds support to Alcamo's testimony. He testified that when he met with Baxter on the after- noon of November 16, the latter stated that earlier that day the cannery union's representative had given him two pheasants and some frozen food packages. Baxter testified that he could not recall such a conversation. However, it is undisputed that the cannery union's representative did in fact give the pheasants and the food to Baxter on the morning of November 16. The record contains no explanation of how Alcamo knew the detailed circumstances of the gifts to Baxter, except Alcamo's testimony that Baxter told him about the gifts on the afternoon of November 16, shortly after Baxter received them. I am convinced, and find, that Alcamo attended a prearranged meeting with Baxter on November 16 as well as on November 15, and that Alcamo's version of what occurred at both meetings is true. One final conversation between Alcamo and Baxter requires consideration. According to Alcamo, Baxter on a certain occasion spoke to him about a settle- ment of the differences between the Union and the MacBride concern. Alcamo testified that he told the CAE representative to communicate with him about the matter after a meeting of the Union on November 20. On November 23, Alcamo stated, Baxter tried to reach him, but was unable to do so and left word at Alcamo's home for the Union's representative to telephone him at his home in Fresno. Alcamo did so that evening, and his version of the conversation is that they discussed the MacBride matter ; that he told Baxter he was unable to do anything in that case ; that Baxter then termed the Union "a bunch of damn fools in this area," and stated that the Union was "going to get the same thing at Stanislaus" ( as in the MacBride matter) ; and that when asked to explain what he meant by that, Baxter stated that " we are going to stall you for a year" and that the Respondent would have a decertification election ( as in the MacBride matter)." Baxter asserted that he tried to communicate with Alcamo on November 16 concerning the "Stanislaus Implement negotiation [and] the R. B. MacBride pickets" and was unable to do so, and that Alcamo returned his call that evening. 11 Baxter offered the explanation that he did not arrange a meeting because the "holidays [presumably Thanksgiving ] were in the offing." However that does not explain why he arranged no meeting after the holidays passed. 21 The Board, on September 26, 1951, directed a decertification election in a case involv- ing the Union and R . B. MacBride. See 96 NLRB No. 65. 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Concerning the conversation, Baxter testified : "I can't repeat it word for word but during the course of the conversation I asked Mr . Alcamo if he were delaying the negotiations at Stanislaus to the point where the employees would be asking for decertification , as they did in the MacBride case." Baxter testified that he could not recall Alcamo's reply. A number of infirmities appear in Baxter 's testimony. Ignoring the fact that the credited testimony shows that Alcamo and Baxter had a meeting at the latter's office on November 16, even Baxter's testimony suggests that he was embarrassed by the failure of Zimmerman and Rooker to appear on November 15, and it seems implausible that so soon after the Respondent 's dereliction, Baxter, having full knowledge of the failure to keep the appointment, would charge Alcamo with "delaying the negotiations." The context of Baxter's ver- sion fails to show what features of the conversation could have led to the remarks he claims he made. On the other hand, Alcamo's account is to the effect that he told Baxter he was unable to settle the MacBride matter, and the union representative's version suggests that that statement led Baxter to make the remarks imputed to him . Alcamo s account is more consistent than Baxter's with the preceding pattern of events which bespeaks a design by the Respondent to dilute and deflect the Union 's efforts to secure agreement on what the Union regarded as one of the major features of its proposed contract. I credit Alcamo's claim that the telephone conversation occurred on November 23," and his version of the conversation. I am unable to conclude from the mere fact that Baxter arranged the Novem- ber 15 and 16 meetings that the Respondent had a serious purpose to bargain in good faith. There is some suggestion in the record that Baxter rather than Zimmerman or Rooker was the moving force in attempting to bring the Union and the Respondent together. He testified that he was anxious to resolve the controversy and to secure removal of the picket line. He was new to the area and to the controversy and it is not unlikely that he was ambitious to resolve two troublesome labor disputes in which CAE and the Union were involved, those pertaining to the Respondent and R. B. MacBride. It may be that he assumed too much concerning the Respondent's willingness to bargain collectively with the Union. The fact that Baxter failed, without plausible excuse, to keep his promise to Alcamo to arrange another meeting and his statements to Alcamo on November 23 warrant an inference that his apparent disposition to bring the Respondent and the Union together underwent a marked change at some point after November 16. In any event, the unavoidable facts are that the Union made overtures in July for a resumption of negotiations, but that the Respondent made no effort to avail itself of the opportunity ; that Zimmerman and Rooker failed to attend the November meetings ; that they offered no ex- planation on the witness stand of their failure to do so ; that the Respondent's evidence contains no credible explanation of Baxter's failure to keep his promise to arrange a meeting after November 16; and that subsequently Baxter revealed a purpose to delay the negotiations as a means of causing the Union to lose its representative status. I am unable to accord any significant weight to the fact that some agreements were reached during the negotiations. In the first place, these were expressly made "tentative" and were not to be "effective" until the execution of the "en- tire contract." Second, at least in terms of monetary benefits, the Respondent conceded little, if anything, of substance in the areas of accord. On such im- portant issues as vacations, wage scales, and the furnishing and laundering of 23 Alcamo used his diary to refresh his recollection of the date of the telephone conversation. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD . 411 coveralls, whatever was agreed upon was already substantially in effect in the Respondent's establishment. Finally, the record presents no good reason not to give literal construction to Baxter 's statement that the Respondent had a pur- pose "to stall you for a year and have a decertification election," as had occurred in the MacBride case. The pattern of the Respondent 's conduct during the preceding year is explicable in terms of a purpose to achieve such a decerti- fication. The evidence establishes a dilatory and evasive approach prior to February 5 to the Union's alternative proposal that the union-shop provisions be embodied in a letter ; a belated injection into the negotiations of a specious claim that discussion of the union-shop proposal prior to an election was unlawful ; the avoidance by the Respondent for approximately 3 months of a definitive state- ment of its position on the union-shop proposal ; a repeated failure by the Com- pany to avail itself of opportunities to resume negotiations ; and the expression of a purpose to use delay in the negotiations as a means of accomplishing the destruction of the Union 's representative status. Viewing the whole record, I find that the Respondent has failed and refused to bargain in good faith with the Union concerning the union-shop proposal, rates of pay, wages, hours of employment , and other conditions of employment . The Respondent has thereby violated Section 8 ( a) (1) and 8 ( a) (5) of the Act. C. The failure to reemploy Sims Sims began his employment with the Respondent in the spring of 1950, and was laid off on June 27, 1950, by Robert J. Cruess, foreman of the Respondent's tractor shop. Slack business conditions, according to the explanation Cruess gave Sims, were responsible for the layoff. At Cruess' request, Sims left his address and telephone number with the foreman. Sims made application to Cruess for employment on August 1, 1950 , and again a few weeks later. The foreman told him in each instance that he "didn't need anyone." On the second occasion, Sims noticed an unfamiliar face in the paint shop and observed to Cruess that a new man had been hired .2i Cruess responded that "we had to hire a painter," whereupon Sims who, among other duties, had worked in the paint shop, asked, "Well, what's the matter with giving me a buzz on it?" Cruess made no response.21 Sims returned in November, spoke to Cruess about a job, and was informed that "things were still about the same" and that he was not needed. On that occasion, also, Sims saw an employee in the shop whom he had not seen before. He inquired of Cruess about the new employee, and Cruess confirmed that he had hired the employee, stating that he "is a top tractor man." 33 Sims testified that his second visit was In the latter part of August. The Respondent's records show that an employee ( Pilgrim ) was hired on September 1, and worked for a time in the paint shop. It is not improbable that Sims' second application was made shortly after September 1. '* Cruess does not deny Sims' version of the quoted conversation , but the sense of his testimony is that he was not available on the occasion of Sims' second visit and did not talk to Sims. Cruess' testimony reflects a faulty recollection at significant points. For example, Cruess, who was responsible for hiring tractor shop employees , exhibited difficulty in recalling whether new employees were at Work on occasions when Sims made his appli- cations. Moreover, there is some confusion in Cruess' testimony relating to periods when Sims applied for work. For example, Cruess attributed one important conversation, actu- ally held in February 1951 , to some occasion in October or November 1951 , only 2 or 3 months before the hearing, although Cruess had testified to the conversation at the prior hearing. Sims appeared to me to have a substantially better recollection than Cruess. Findings with respect to Sims' application for work in 1950, what he observed in the, shop, and the substance of his conversations with Cruess , have been based on Sims' testi- mony, in the light of undisputed evidence reflected in the Respondent 's records. 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The charge in Case No. 20-CA-512 was filed on November 3, 1950, alleging that Sims had been unlawfully terminated. An amendment to the charge was filed on January 24, 1951, effecting some changes not relevant here. A com- plaint was issued on January 25, 1951., and both the amended charge and the complaint were mailed to the Respondent on that date.21 About a week later, on February 1, Sims called upon Cruess at the Respond- ent's place of business and asked "about chances of going to work." The fore- man stated that there were no openings. Sims pointed out that two new men had been hired, and he asked the foreman: "What's the matter, you got me on your shit list?" Cruess then told Sims, "I want to talk to you," and asked the latter to step into the office. There, the foreman asked Sims if he had filed "a bill against me." Sims denied that he had, whereupon Cruess asked him who had done so, and Sims stated he did not know who had filed the "bill." Cruess ex- pressed the view that "the damn union must have," and Sims disclaimed any knowledge about the matter. The foreman remarked, "Well, they are trying to get me up for firing you for union activities." Cruess asked Sims for the latter's address and telephone number, stating that he had lost it. Sims furnished the information 20 The Respondent did not thereafter communicate with Sims about a position, and he has not been employed by the Company since June 27, 1950. Cruess denied that he failed and refused to reemploy Sims because of the charge filed in the prior proceeding. He also denied the receipt of instructions from Zimmerman or Rooker not to hire Sims, or even discussing the filing of the earlier charge with any of the Company's officials. The credibility of his denials may be tested, at least in part, by evidence bearing on the Coinlriny's employment of others after February 1., and the reasons Cruess advanced for preferring other employees to Sims. Between February 1, 1951, and the date of the strike, the Respondent hired a substantial number of individuals, some for work in the tractor shop, and others variously for the implement, pump, and welding shops. In the tractor shop, the Respondent hired two mechanic's helpers, a janitor, and a mechanic; ,in the implement shop, four helpers ; in the welding shop, four welders ; and in the pump shop, one helper.27 Cruess touched on the experience of the two helpers he hired for the tractor shop after February 1. The foreman professed difficulty in recalling one helper, Mitchell, who was hired on April 11. Cruess testified that he could not place 25 Judicial notice has been taken of the Board's records with respect to the charge, amendment thereof, and the complaint in Case No. 20-CA-512. Findings made above are based on with respect thereto the Board's records. 28 Findings with respect to the conversation on Februa y 1 are based , in the main, on Sims' substantially undisputed testimony. Cruess' version on direct examination is scant and, for all that appears in it, there was no conversation concerning the filing of a "bill." Under cross-examination, excerpts from Cruess' testimony at the prior hearing were read to him. It appears from that, that he testified at the earlier hearing that he asked Sims if he had "filed any complaint against the Company, including myself [Cruess] on an unfair labor practice." Cruess acknowledged that he had so testified and that he gave testimony that he had put Sims at the bottom of a list of applicants and had so informed Sims. 27 Decision was reserved on the Respondent's motion to strike evidence bearing on em- ployees hired in the implement, pump, and welding shops. The employees hired in the implement and pump shops were helpers . Sims has been a mechanic since 1924 and at the time of the hearing was employed at $2.135 per hour in the general repair and over- haul of trucks, tractors, and cranes. It is not unreasonable to assume that he was quali- fied to work as it helper in the implement and pump shops, as well as in the tractor shop. The record contains insufficient information on the work of the welding shop and the scope of the welders' work. There is, however, some suggestion in Cruess' testimony that Sims "possibly" did some acetylene (gas) welding , although no electric welding. The motion to strike is denied. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 413 the employee, but at a later point in the record, he recalled that Mitchell had "had some experience (in) driving tractors and some experience on ranches, but not in the shop." Cruess asserted that the other mechanic's helper, a man named Ehlert who was hired on March 1, had had "quite a bit of experience ... as a layout man, laying out steel, ... in some sort of manufacturing" and. had operated a "kind of a combination service station and repair shop" in Los Angeles. According to Cruess, all this led him to believe that "maybe Ehlert, might develop into a better man than Sims." Cruess admitted, however, that he knew little about Ehlert's work as a "layout man." He also agreed that, except "indirectly," there is no connection between engines and the "laying out of steel," and the witness offered no explanation of what he meant by "indirectly." Although he admitted that he could not place Mitchell, Cruess intimated that he hired Mitchell "for the same reason that I hired Ehlert." Cruess also offered the explanation that lie preferred such employees as Ehlert and Mitchell because "Sims' manner of speech at times was rather vulgar and I figured that that kind, of language shouldn't be used in the shop, especially around where customers are coming in." The record contains a number of factors which prevent acceptance of Cruess', claim that the charge in the prior proceeding had no connection with his failure to reemploy Sims. First, there is no claim that Sims' work was inferior to that of other helpers who were hired. Sims has been a mechanic since 1924 and at the time of the hearing was earning $2.135 an hour as a truck, tractor, and crane mechanic. Cruess was familiar with Sims' work, whereas Mitchell and Ehlert, were lacking in tractor shop experience, and the foreman knew that such was the case. Second, Cruess never rebuked or reprimanded Sims for vulgarity, nor did the foreman even discuss it with Sims. Cruess at no point told him that the latter was not reemployed because he used coarse expressions . And it may be noted that when Cruess hired Ehlert and Mitchell, he made no inquiry to deter- mine their propensity for using vulgar terms. Third, Cruess gave contradictory and evasive testimony on the subject of Sims' alleged use of vulgar expressions in the presence of customers. Initially, asked whether he had heard Sims use such terms in the presence of customers, the foreman replied, after some hesi- tation, "I believe so." Cruess' demeanor in responding to the question suggested the possibility that he had no knowledge concerning the matter, and he was, therefore asked whether he knew that Sims had in fact used vulgarity in the presence of customers. Cruess answered irresponsively : "Not exactly. In other words, it was pretty hard for him to say anything without using vulgar language." In view of the nature of Cruess' reply, the question was repeated and he then admitted that he had no knowledge on the subject. Fourth, J. D. Taylor, a mechanic who had worked in the tractor shop for about 4 years prior to the strike (he participated in it), testified credibly that a certain mechanic who had intermittent employment both before and after Sims' termination in- dulged in vulgar language quite extensively. There is no evidence that the em- ployee in question was ever reprimanded or rebuked, and he was not denied em- ployment. Fifth, Cruess gave self-contradictory testimony on the question whether he had discussed the charge in the prior proceeding with the Company's officials. Asserting that the question of Sims' reemployment was solely his responsibility, he denied initially that he had even discussed the charge in the prior proceeding with any of the Company's officials. Under cross-examina- tion he at first repeated his denial, but later admitted that he had discussed the charge with one or more representatives of management, although he stated that he could not recall with whom he had had the discussion. Significantly, he supposed that such a discussion took place "shortly after the company knew that 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the charge was filed against them ." Moreover, after his initial denial, he volun- teered the statement that he asked someone (presumably a management official, although he did not identify the individual) "whether his [Sims'] charge with the Labor Board against the company would have any hearing on me rehiring him or not." Cruess did not state what response he got to his question. Finally, Cruess admitted giving testimony at the prior hearing to the effect that when Sims applied for work in February, the latter inquired if his applica- tion was "at the bottom of the list," and that he (Cruess) replied that such was the case and that several applicants were ahead of Sims. Clearly, seniority of application was not the criterion used in selecting Ehlert and Mitchell, if not in- deed others as well. Against that background, and in the light of the discussion concerning the filing of the "bill" during the same conversation, the statement that Sims' application would be placed at the bottom of a list adds support to the conclusion that the Respondent entertained discriminatory motives toward Sims. Copies of the amended charge and the complaint arrived at the Respondent's establishment only a few days before Cruess interrogated Sims about the "bill." It is quite apparent that what Cruess had in mind by referring to the "bill" was the charge filed against the Respondent. That is made clear by Cruess' testi- mony at the prior hearing that he asked Sims if the latter had "filed any com- plaint against the Company, including myself (Cruess) on an unfair labor practice." In that setting, measured by the infirmities in Cruess' testimony, both the conversation and the foreman's subsequent failure to hire Sims assume concrete meaning. I find that after February 1, 1951, the Respondent discrim- inatorily failed and refused to employ Sims because of the filing of the charge and its belief that Sims had filed it or was responsible for its filing. A question arises concerning the date when the Respondent actually failed to give an available opening to Sims. Although the Respondent hired employees (Pilgrim and Smith) prior to February 1, 1951, to do work for which Sims was qualified , the Trial Examiner in the prior proceeding expressly found that no dis- crimination occurred prior to February 1. No exceptions were filed, and the Board adopted that finding, precluding any to the contrary. The Respondent hired a mechanic (Henderson) for the tractor shop on Februrary 5, 1951. He was the first person hired after February 1. It is not unlikely that Sims was qualified to perform the same type of work as Henderson. There is also evidence that Zimmerman complimented Sims for his work on June 27 and predicted that if Sims continued his "good work," he would "get on top, get top wages." However, paraphrasing a recent holding of the Board 28 in an issue having some resemblance to that involved here, a finding that aims would have attained the position of mechanic "involves too much speculation [on this record] as to a series of contingent events." The Respondent hired a helper (Metzler) for the implement shop on February 7. Although Sims was employed in the tractor shop, I have no doubt that he was qualified to do the helper's work in the im- plement shop 2° I therefore find that the Respondent failed and refused to give Sims employment on and after February 7, 1951. The Respondent pointed out at the hearing that the Board in Case No. 20-CA- 512 "ordered that the complaint be dismissed insofar as it alleges that the Re- spondent discriminatorily discharged and thereafter failed and refused to rein- state" Sims. The Respondent, apparently referring to the phrase "thereafter 28 Alaska Steamship Company, 93 NLRB 22. ° It may be noted that during the negotiations, the Union and the Respondent agreed on a single classification and wage scale for all helpers. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 415 `failed and refused to reinstate," urges that the Board's prior order requires a dismissal of the allegation pertaining to Sims in this proceeding . However, the Intermediate Report in the earlier case makes it clear that the Trial Examiner based his finding that no discrimination occurred on events prior to February 1951, and that he expressly declined to pass on the question whether Sims was denied reemployment in February or thereafter because a charge had been filed. The Trial Examiner noted that the complaint before him contained no such allega- tion and that no such contention was advanced at the hearing, and he observed that he was "unable to say" that the relevant question "was fully litigated." I find no merit in the Respondent's claim. One final question remains for disposition, although apparently not raised by the Respondent. Section 8 (a) (4) makes it unlawful "to discharge or other- wise discriminate against an employee because he has filed charges or given testimony under this Act" ( emphasis supplied ). The Union, and not Sims, filed the charge in the prior proceeding. The Board has held that where a union files a charge on behalf of an individual, the mere fact that the latter did not actually file it himself does not preclude a finding that the employer violated Section 8 (a) (4)80 There is no evidence that Sims specifically authorized or directed the Union to file the charge. However, tacit authority may be inferred from the whole context of the relationship between Sims and the Union and the latter's controversy with the Respondent. Sims was not only a member of the Union, but the first organizational meeting of the Respondent's employees was held at his home. Officials of the Union attended, and employees present joined the organization. Zimmerman interrogated Sims concerning the meeting, and such interrogation was expressly found to be an unfair labor practice and relied upon, at least in part, to support the allegation of discrimination, in the pro- ceedings arising from the charge in Case No. 20-CA-512. One reason why em- ployees join unions is for mutual aid and protection, and it may be assumed, in the light of Sims' union activity, that that was a factor in his membership, par- ticularly if one bears in mind that he participated in the strike by picketing the Respondent's premises, although not an employee. What the Union did in filing the charge was to take steps to aid and protect its members and in that aspect it fulfilled and executed a purpose for which Sims joined, thus in effect acting as his agent 81 Moreover, quite apart from the question whether the Union exer- cised an implied or tacit agency, the evidence establishes that the Respondent assumed that Sims had filed the charge or was responsible for its filing. The Individual who is erroneously assumed to have filed a charge and is discriminated against because of the assumption is as much the victim of discrimination and may be as inhibited in the exercise of rights guaranteed by Section 7 as one who suffers reprisal because he has actually filed a charge. In both cases the em- ployer's motive is the same. I do not believe that the phrase "because he has filed a charge" was designed merely to describe a protected group, namely, those who actually file. The more reasonable interpretation is that the purpose of the phrase is to describe a prohibited reason or motivation for discharge. So construed, the statute forbids discrimination as much where it is motivated by an erroneous assumption that an individual has filed a charge as it does where the assumption is correct. "Burnside Steel Foundry Company, 63 NLRB 129, 136; Briggs Manufacturing Com- pany, 75 NLRB 569, 572. 311 attach no significance to the fact that Sims denied to Cruess that he had filed the charge. It is not unusual for an employee to disclaim responsibility for engaging in an activity protected by law . Such denials are frequently used as a shield against possible reprisal. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In failing and refusing to employ Sims as found above , the Respondent violated Section 8 ( a) (1) and 8 (a) (4) of the Act. IV. THE EFFECT OF UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, .have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY The evidence reveals an underlying opposition by the Respondent to the policies and objectives of the Act. I find that the unfair labor practices disclosed by the record are closely related to other unfair labor practices prescribed by the statute, and that a danger of their commission in the future is to be anticipated from the conduct of the Respondent in the past. In order to make effective the interdependent guarantees of Section 7, it is necessary, therefore, that it be recommended to the Board that its order be made coextensive with the threat of .future disregard by the Respondent of its statutory obligations. Having found that the Respondent has engaged in unfair labor practices vio- lative of Section 8 (a) (1), (4), and (5) of the Act, I shall recommend that it !cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the Respondent discriminatorily failed and refused to hire Joseph B. Sims on and after February 7, 1951, because of the filing of the charge in Case No. 20-CA-512, whether the Respondent's conduct be viewed as a violation of Section 8 (a) (1) or Section 8 (a) (4), or of both, I shall recommend that the Respondent offer Sines immediate employment as a mechanic's helper in the tractor shop or a substantially equivalent position' ,including, but without limitation thereto, the position of helper in the imple- ment shop or pump shop, without prejudice to his seniority and other rights and privileges, and to make him whole for any loss of pay he may have suf- fered, by reason of the discrimination against him, by payment to him of a sum of money equal to his loss of wages between and including February 7, 1951, to the date of the offer of employment." Sims' loss of pay shall be computed on the basis of each separate quarter or portion thereof from February 7, 1951, to the date of a proper offer of employment. The quarterly periods shall begin with the respective first days of Januaiy, j pril, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which 31 In accordance with the Board's consistent interpretation of the term, the expression "former or a substantially equivalent position" is intended to mean "former position wherever possible, but if such position is no longer in existence, then to a substantially equivalent position." See The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 33 The fact that the record in this proceeding is Insufficient to support a finding that Sims would have been promoted out of a helper's classification should not be construed as precluding a finding in any future proceeding to determine the scope of the Respondent's wage liability that Sims would have been promoted after February 7. If in fact such a promotion would have occurred, it may be that the General Counsel and the Respondent can reach agreement on the matter in the process of effectuating compliance with the Board's order. Nothing herein is to be construed as precluding such an agreement or any future findings concerning the promotion question and the extent of the Respondent's liability for back pay. STANISLAUS IMPLEMENT AND HARDWARE CO., LTD. 417 Sims, but for the discrimination , normally would have earned in the Respondent's employ in each such quarter or portion thereof, his net earnings," if any, in other employment during that period. Earnings in one quarter shall have no effect upon the back-pay liability for any other quarter. The Respondent shall, upon request, make available to the Board and its agents all records pertinent to an analysis of the amount due as back pay or to the direction that the Respondent offer him employment. Having found that the Respondent has failed and refused to bargain in good faith with the Union as the exclusive representative of its employees In an appropriate unit, and since such failure and refusal constitute a refusal to bargain collectively within the meaning of the Act, I shall recommend that the Respondent be directed to bargain collectively with the Union as the representative of such employees, with respect to lawful requirements that they join the Union, rates of pay, wages, hours of employment, and other condi- tions of employment, and if an agreement is reached, to embody its terms in a signed agreement. Having found that the Respondent, in violation of Section 8 (a) (1) of the Act, has interfered with, restrained, and coerced employees in the exercise by them of rights guaranteed by Section 7 of the Act, I shall recommend that the Respondent be directed to cease and desist therefrom in the future. Upon the basis of the foregoing findings of fact and of the entire record in this proceeding, I make the following: CONCLUSIONS OF LAw 1. International Association of Machinists, District Lodge No. 41, is a labor organization within the meaning of Section 2 (5) of the Act. 2. All of the employees in the Respondent's place of business at Modesto, California, who are employed in the tractor, welding, and implement and pump shops, including the truck driver and janitors in these shops, but ex- cluding all other employees, assistant foremen, and all other 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. International Association of Machinists, District Lodge No. 41, was on December 22, 1950, and at all times since has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By failing and refusing on various occasions during the period from and after January 3, 1951, to bargain collectively with International Association of Machinists, District Lodge No. 41, as the exclusive representative of its em- ployees in the appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (5) of the Act. 5. By discriminating against Joseph B. Sims because he had filed a charge or because the Respondent believed that he had filed a charge or was responsible for such filing, the Respondent engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (a) (4) of the Act. 6. By interfering with, restraining, and coercing its employees in the exer- cise by them of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1). I For the meaning of the term "net earnings," see Crossett Lumber Co., 8 NLRB 440. 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and 2 (7) of the Act. [Recommendations omitted from publication in this volume.] Appendix A NOTICE To ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT fail or refuse to employ any individual, or otherwise dis- criminate against him, because be has filed a charge with the National Labor Relations Board or because we believe that such individual has filed a charge or is responsible for such filing. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of the right to self-organization, to form , join, or assist labor organizations, to join or assist INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT LODGE No. 41, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, 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 a condition of employment, as authorized in Section 8 (a) (3) of the Act. WE WILL offer JOSEPH B. SIMs immediate employment as a mechanic's helper in the tractor shop or a substantially equivalent position, without prejudice to his seniority rights and privileges, and make him whole for any loss of pay he suffered as a result of our discrimination against him. WE WILL bargain collectively in good faith with INTERNATIONAL Asso- CIATION OF MACHINISTS, DISTRICT LODGE No. 41, as the exclusive representa- tive of the employees in the appropriate unit described below with respect to lawful requirements that they join the union, rates of pay, wages, hours of employment, and other conditions of employment, and if an agreement is reached, embody it in a signed agreement . The bargaining unit consists of : All of the employees in our place of business at Modesto, California, who are employed in the tractor, welding, and implement and pump shops, including the truck driver and janitors in these shops, but exclud- ing all other employees, assistant foremen, and all other supervisors as defined in the National Labor Relations Act. STANISLAIIS IMPLEMENT AND HARDWARE COMPANY, LTD., 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.