Pryne & Co., Inc.

PRYNE & COMPANY, INC 447 employees Boettiger, Kendall, Crawford, Hutches, Martinez, and Clark. Nor do we find merit in the Employer's contention that one employee, Kenneth Carter, who was permitted to vote an unchallenged ballot, should have been excluded on the ground that he also only occasionally works as a pressman. This is in the nature of a post-election challenge and, therefore, will not be considered by the Board. 4 Finally, we deny the Employer's request for reconsideration of the unit finding. This request is not only untimely,' but also presents no matters which warrant altering our prior deter- mination herein. As a majority of the eligible employees voting cast their ballots for the Petitioner, we shall certify that labor organ- ization as the exclusive bargaining representative of all the employees in the appropriate unit. [The Board certified Los Angeles Printing Pressmen & Assistants' Union No. 78, International Printing Pressmen & Assistants' Union of North America, AFL, as-the designated collective-bargaining representative of all letterpressmen and assistants at the Employer's Los Angeles, California, plant, excluding all other employees, guards, and supervisors as defined in the Act.] Chairman Herzog and Member Murdock took no part in the consideration of the above Supplemental Decision and Certi- fication of Representatives. 4 Westinghouse Electric Corporation , 91 NLRB 955, 963; N.L. R. B. v A. J. Tower Company, 329 U S 324. s William R Whittaker Co , Ltd, 94 NLRB 1151,1152. PRYNE & COMPANY, INC. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, (UE) LOCAL 1421. Case No. 21 -CA-1146. June 9, 1953 DECISION AND ORDER On May 9, 1952, Trial Examiner Howard Myers issued his Intermediate Report in the above-entitled proceeding, finding that Respondent had engaged 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, Respondent filed exceptions and a supporting brief. No exceptions were filed by the Intervenor Union' or by the General Counsel. 1 The International Brotherhood of Electrical Workers, Local 1710, AFL, intervened at the hearing 105 NLRB No. 51 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Board2 has reviewed the rulings made by the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and entire record in the case and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following additions and modifications: 1. Like the Trial Examiner, we find that the Respondent on and after May 17, 1951, failed to bargain in good faith with the charging Union, Local 1421 of the United Electrical, Radio & Machine Workers of America (UE) 3 thereby violating Section 8 (a) (5) and (1) of the Act. In so finding, we rely solely on the following considerations: The Respondent, except for a brief period in 1950, had un- broken contractual relations with the charging Union from 1940 to June 30, 1951. The last of these contracts ran from September 1, 1950, to June 30, 1951. There were no strikes or other work stoppages during this period. Both before and during the course of the 1951 contract negotiations, as found by the Trial Ex- aminer, the Respondent by statements to employees made it clear that it had determined (1) not to consummate any agree- ment with the Local and (2) actively to assist IBEW 4 to dis- place the Local as the representative of the employees. During the Local's unsuccessful negotiations with the Re- spondent in the first few months of 1951 for a wage increase under the wage reopening clause of the September 1950 con- tract between the parties, the Respondent's advertising and sales promotion manager, Cabana, told an employee Royalty) that the Respondent would be "very glad to give the em- ployees] a raise of ten or fifteen cents an hour if the IBEW was in. . . ."s At the time this statement was made, the Re- spondent was firmly resisting the Local's demand for a 15-cent an hour increase. About the same time, Cabana told employee Freeman, as found by the Trial Examiner, that the Respondent did not "want the UE in here . . . they won't be in existence much longer." On 6 or 8 other occasions Cabana told Freeman he belonged to the wrong union. Thereafter, on March 21, 1951, the Respond- ent, after flatly rejecting the Local's demand for a 15-cent wage increase , announced to the Local and the employees that 2 Pursuant to the provisions of Section 3 (b) of the Act, as amended, the National Labor Re- lations Board has delegated its powers in connection with this case to a three -member panel [Members Murdock, Styles, and Peterson] 3 1'he Local is also referred to herein and in the Intermediate Report as "UE" 41BEW had since 1946 competed unsuccessfully with the Local for the right to represent Respondent's employees The Respondent 's president , Pryne, testified that he had told em- ployees in December 1950 that' the Respondent unquestionably had "suffered a considerable loss of business " because its products did not bear the AFL label. IBEW is affiliated with the AFL. 5 The quotation is from Royalty's uncontradicted testimony which was credited by the Trial Examiner. PRYNE & COMPANY, INC. 449 it was instituting a 4-cent increase regardless of the Local's wishes in the matter. On the same day, Rea, a labor relations consultant employed by the Respondent as found by the Trial Examiner, told Lambert, a member of the Local's negotiating committee, "I don't think we will have to worry much about the UE after this contract [i.e., the September 1950 contract] expires." Five days before the foregoing statement by Rea, he had written a letter to the Local on behalf of the Respondent terminating the existing contract, which was not to expire by its terms until the follow- ing June 30. In this letter, Rea impugned the motives of the Local's leaders and stated that the Respondent would not sign any further contract with the Local unless it contained "ade- quate safeguards" against interruptions of production. In April 1951, about a month before commencing negotiations for a new contract, employee Loghry was told by his foreman, Miller, in the course of a discussion of the impending negotia- tions, that he (Miller) did not think "there would be another con- tract" with the Local. About the same time the Respondent's vice president, Kelly,6 told an employee, Liscomb, as foundby the Trial Examiner, that the Respondent's contract with the Local would soon expire and he was "going to get rid of [the local] by hook or crook," that IBEW was a good union, that he "could get enough men in there so that when the election came up . they would have enough men to" assure the selection of IBEW, that he was going to "get" two of the "agitators in the plant" and "they would not be around very long." On June 30, after prolonged and fruitless negotiations between the Respond- ent and the Local had culminated in a strike vote, Cabana, in discussing the impending strike with employees Freeman and Tabor, told them, as found by the Trial Examiner, that the Local "was the only thing . . . standing in the way of an agree- ment, and that the Respondent's president disliked the Local. Cabana then suggested that the employees enter into an agree- ment directly with the Respondent, without the aid of the Union. The employees went on strike July 2, 1951. About 2 or 3 weeks later, when employee Royalty asked Vice-President Kelly why Respondent would not sign a contract with the Local, Kelly replied that he had had dealings with the UE in the East and "they had nothing good for the Company." It is clear from the foregoing, and we find, that when the Respondent on May 10, 1951, entered into contract negotiations with the Local, it did so with a determination not to reach any agreement and to pave the way for displacement of the Local by IBEW. The entire course of the Respondent 's negotiations with the Local, and of Respondent's later dealings with IBEW, lend further support to this conclusion. The details of the bargaining conferences are set forth in the Intermediate Report. They continued from May 10 to Octo- 6 Kelly had during the preceding 2-year period represented the Respondent in its labor re- lations 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ber 24, 1951. All efforts by the Local to expedite the nego- tiations were resisted by the Respondent. On July 18, the Re- spondent interjected into the negotiations a demand that the Local post a $50,000 performance bond to indemnify the Respondent against any damages for breach of contract, if one was executed. This demand was made despite the fact that during the 11 years of its contractual relations with the Re- spondent, the Local had not been required to post such a bond, and despite the absence of any evidence that the Local had been responsible for any breach of contract during that entire period.? Other proposals made by the Respondent, which had no counterpart in any of the parties' prior contracts, called for assurances against defamation of the Respondent by the Local, and for the execution of non-Communist affidavits by its representatives, as more fully detailed in the Intermediate Report.' None of these proposals was calculated to promote harmonious relations at the bargaining table. Moreover, it was the Respondent's insistence on the latter proposals, among others, that prevented the parties from reaching agreement on September 20. On that date the Local abandoned all its major demands and proposed that the parties sign the old contract plus changes already agreed upon, with reinstatement of the strikers. The Respondent rejected this offer. There was one more bargaining conference, on October 24, which was unproductive. About a week later, IBEW requested the Respondent to recognize it as the representative of the majority of the employees. On December 5, 1951, the Respondent agreed to submit to an arbitrator the question whether IBEW represented a majority of the employees. After the arbitrator upheld IBEW's claim, the Respondent on Feb- ruary 6, 1952, agreed to bargain with IBEW and met with it 2 days later. Thus the Respondent accomplished its two avowed objec- tives--namely, to terminate its contractual relations with the Local, and to have IBEW supplant the Local as the repre- sentative of the employees. The Respondent having openly announced this purpose to the employees, and having further discredited and undermined the Local by engaging in bad faith in prolonged and fruitless negotiations, any shift in the allegiance of the employees from the Local to IBEW is at- tributable to the Respondent's unlawful conduct, and may not therefore justify the Respondent's recognition of IBEW. 7 While there was some suggestion in the record that the employees had engaged in a slow- down during the negotiations which culminated in the wage increase of March 21, 1951, the record does not establish when this slowdown occurred, if at all. e These proposals were contained in the first draft submitted by the Respondent on May 15, and it was not until the final bargaining conference on October 24 that the Respondent indicated any disposition at all to withdraw them Moreover, the belated offer to withdraw the demand for non-Communist affidavits was conditioned upon a determination that the clause was illegal How or when such a determination was to be made is not indicated by the record PRYNE & COMPANY, INC. 451 In view of the foregoing , and upon the entire record in this case, we find , as did the Trial Examiner , that at all times on and after May 17, 1951 , the Respondent refused to bargain in good faith with the Local in violation of Section 8 (a) (5) and (1) of the Act.9 2. We find, also , that the Respondent independently violated Section 8 (a) (5) and ( 1) of the Act by its insistence upon the inclusion in the contract of a clause excusing the Respondent from bargaining with any representative of the Local or its International who declined to furnish an affidavit disavowing membership in, or affiliation with, the Communist Party or any similar organization . Insofar as it applied to representa- tives who are not officers of the Local or International, this requirement would exact non-Communist affidavits from per- sons not required to furnish such affidavits by Section 9 (h) of the Act . Insofar as it applied to such officers , they had already filed such affidavits with the Board . In either case, the Respondent was not entitled to insist upon such a clause. In the case of Square D Company,i° the Board recently held that that company violated Section 8 (a) (5) and ( 1) of the Act by its insistence upon a contract clause similar to that demanded by the instant Respondent. The Respondent contends that its insistence upon the af- fidavit clause was justified by the fact that the Local's parent body , UE, was expelled from the CIO because of al- leged Communist domination and that both UE and the Local had failed to comply with the affidavit filing requirements of Section 9 (h) of the Act until late in 1951 . However, as late as September 1949, while both UE and the Local were still out of compliance with Section 9 (h), the Respondent negotiated and executed a contract with the Local . The fact that the Respondent waited until after UE and its Local had complied with Section 9 (h) before raising the issue of Communist domination is persuasive that this issue was not raised in good faith but merely as a mask for the true reason for the Re- spondent ' s unwillingness to deal with UE--namely, its belief that its economic interests would be better served by dealing with IBEW. 3. We further find, as did the Trial Examiner, that the Respondent illegally supported and assisted the IBEW in violation of Section 8 (a) (2) and ( 1) of the Act, by refusing to bargain in good faith with the Union, by entering into the "Submission Agreement " with IBEW in December 1951, and by later recognizing the IBEW as the exclusive bargaining representative of its employees . " However , we do not adopt 9 In reaching this conclusion , we have not relied on the proposal reserving to Respondent the right unilaterally to establish an incentive pay plan, or on footnote 50 of the intermediate Report 10105 NLRB 253. 11 See Indianapolis Newspaper, Inc., 103 NLRB 1750 452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Trial Examiner's other findings of violations of Section 8 (a) (2) of the Act by the Respondent. Such findings are based either on events occurring more than 6 months before the filing of the charge or upon testimony which the parties agreed at the hearing should not be considered as a basis for finding Section 8 (a) (2) violations.12 4. The Trial Examiner also found that the Respondent inde- pendently violated Section 8 (a) (1) of the Act by various remarks of management to the employees containing threats of reprisal for union activity and offers of benefits for abandon- ing the Local. We agree. However, we do not rely, as did the Trial Examiner, upon Pryne's remarks to Treise in 1950 or upon Pryne's tacit approval of and aid in the solicitation of membership withdrawals from the Local, as this conduct in both cases occurred more than 6 months before the filing of the charge herein. 5. We also agree with the Trial Examiner that the strike of July 2, 1951, was an unfair labor practice strike, the main cause of which was Respondent's unlawful refusal to bargain; and that Respondent's refusal to reinstate the 12 strikers upon their unconditioned request constituted discrimination in violation of Section 8 (a) (3) and (1) of the Act. 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 Respondent, Pryne & Company, Inc., Pomona, California, its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Refusing to bargain collectively with United Electrical, Radio & Machine Workers of America, (UE) Local 1421, as the exclusive representative of the employees in the following appropriate unit: All plant production and maintenance em - ployees, including shipping and receiving employees, at the Respondent's Pomona, California, plant, but excluding clerical employees, workmen, guards, professional employees, and supervisors as defined in the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain collectively with United Electrical, Radio & Machine Workers of America, (UE) Local 1421, as the exclusive representative of the employees in the above- liOn March 3, 1952, during the course of the hearing herein, the General Counsel moved to amend the complaint to include an allegation that the Respondent had unlawfully assisted IBEW, in violation of Section 8 (a) (2) of the Act. All parties agreed to this amendment on condition that none of the testimony already taken at the hearing be considered by the Board as a basis for finding such a violation While this stipulation does not specifically preclude findings of derivative violations of Section 8 (a) (1) of the Act based on such prior testimony, we presume that it was the intent of the parties to bar, and we will not make, such findings PRYNE & COMPANY, INC. 453 described appropriate unit, and embody in a signed agreement any understanding reached. (b) Offer to the persons whose names appear on Appendix A attached to the Intermediate Report immediate and full reinstatement to their former or substantially equivalent positions , except those already so reinstated , and make them whole for any loss of wages suffered as a result of the dis- crimination against them in the manner set forthin the section entitled "The Remedy" in the Intermediate Report. (c) Withdraw from the "Submission Agreement" entered into with IBEW on or about December 5, 1951, and from any and all agreements of like nature, and withhold from IBEW any other illegal assistance and support and recognition. (d) Upon request, make available to the Board or its agents for examination and copying all payroll records, social-security records, timecards , personnel records and reports , and all other records necessary to analyze the amounts of back pay due the persons whose names appear on Appendix A attached to the Intermediate Report and their rights of reinstatement. (e) Post at its plant in Pomona, California, copies of the notice attached to the Intermediate Report and marked "Ap- pendix B." iS Copies of said notice, to be furnished by the Regional Director for the Twenty-first Region (Los Angeles, California), shall, after being duly signed by Respondent's representative, be posted for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees customarily are posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (f) Notify the Regional Director for the Twenty-first Region, in writing, within ten (10) days from date of this Order what steps the Respondent has taken to comply therewith. IT IS FURTHER ORDERED that the allegations of the second amended complaint that Respondent discriminated against Henry C. Braden and that all other allegations of said com- plaint relating to unfair labor practices not found in this Decision and Order be dismissed. Is This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner" the words "A Decision and order." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by sub- stituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order " Intermediate Report and Recommended Order STATEMENT OF THE CASE Upon a charge and an amended charge duly filed by United Electrical, Radio & Machine Workers of America, (UE) Local 1421, herein called UE, the General Counsel of National Labor Relations Board, herein respectively called the General Counsel and the Board, by the then Acting Regional Director for the Twenty-first Region (Los Angeles, California), issued 454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD his second amended complaint on January 30, 1952, alleging therein that Pryne & Company, Inc , Pomona, California, had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1), (3), and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat 136, herein called the Act Copies of the second amended complaint, the charge, and the amended charge, together with notice of hearing thereon, were duly served upon Respondent and UE. With respect to the unfair labor practices, the second amended complaint alleged in sub- stance that Respondent (1) by means of certain stated acts and conduct interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, (2) on January 3, 1951, and at all times thereafter, refused to bargain collectively with UE as the exclusive representative of its employees in a certain appropriate unit, although the majority of its employees in said unit had designated and selected UE as their representative for such purpose; and (3) refused to reinstate 13 named employees to their former positions at the termination of the strike at Respondent's plant, although the strike was caused and prolonged by Respondent' s unfair labor practices and the said 13 employees had unconditionally offered to abandon the strike and return to work Respondent's answer denied the commission of the alleged unfair labor practices Pursuant to notice, a hearing was held between February 11 and March 7, 1952, before the undersigned, the duly designated Trial Examiner The General Counsel and Respondent were represented by counsel, UE by officials thereof. Full opportunity was afforded all parties to participate in the hearing, to examine and cross-examine witnesses, and to introduce evi- dence pertinent to the issues. During the course of the hearing, the undersigned granted the General Counsel's unopposed motion to amend the second amended complaint to allege that Respondent violated Section 8 (a) (1), (2), and (5) of the Act by giving "illegal support, as- sistance and recognition to the International Brotherhood of Electrical Workers, Local Union No 1710," affiliated with the American Federation of Labor, herein called IBEW, "in con- travention of the rights of [UE] as the exclusive certified bargaining representative of" Respondent's employees.i At the conclusion of the taking of evidence, oral argument was had in which counsel for Respondent, IBEW, and the General Counsel participated The parties were then advised that they might file briefs with the undersigned on or before March 27, 1952 2 Briefs have been received from the General Counsel and Respondent which have been carefully considered Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following- FINDINGS OF FACT I, THE BUSINESS OF THE RESPONDENT Pryne & Company, Inc , a California corporation, has its principal place of business at Pomona, California, where it is, and during all times material herein was, engaged in the manufacture, sale, and distribution of electric ventilators and recessed lights. During 1949, Respondent purchased raw materials and supplies valued in excess of $ 660,000, of which more than 48 percent was shipped to its Pomona plant from points located outside the State of California During the same year, Respondent's total sales aggregated in excess of $1,550,000, of which more than 75 percent was shipped to points located outside the State of California iDue and timely service of a written notice was made upon Respondent and IBEW of the General Counsel's intention to amend the second amended complaint to allege the aforesaid illegal support, assistance, and recognition to IBEW. The said notice further stated that the General Counsel also intended to move to make IBEW a party-respondent herein . Upon the granting of the aforementioned motion, counsel for IBEW moved for leave to intervene. The motion was granted without objection . Counsel for IBEW then requested a continuance of the hearing for the purpose of preparing his defense. The application was granted and the requested time allowed Upon resumption of the hearing , counsel for IBEW wag given full opportunity to participate in the hearing, to examine and cross -examine witnesses, and to introduce evidence pertinent to the issues Respondent 's answer to the second amended com- plaint was deemed amended to deny it violated Section 8 (a) (1), (2), and ( 5) of the Act with respect to its relationship and dealings with IBEW 2 At Respondent 's request the time was extended to April 9 PRYNE & COMPANY, INC 455 Respondent's 1951 purchases and sales were substantially equal to its 1949 purchases and sales Upon the above-undisputed facts, the undersigned finds that during all times material herein Respondent was and still is engaged in commerce within the meaning of the Act. IL THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers, (UE) Local 1421, unaffiliated, and Inter- national Brotherhood of Electrical Workers, Local Union 1710, affiliated with American Federation of Labor, are labor organizations admitting to membership employees of Re- spondent III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; refusal to bargain collectively with UE 1 Background and sequence of pertinent events 3 Under date of August 1, 1940, UE and Respondent entered into a collective-bargaining con- tract covering all the latter's production and maintenance employees and those directly as- sociated with production exclusive of salesmen, office employees, supervisors, foremen, and watchmen. Thereafter and until June 30, 1951, except for a short period in 1950, when the question of representation was before the Board for decision, Respondent and UE had had con- tinuous contractual relations covering the persons employed in substantially the same category mentioned in the 1940 contract 4 In 1946, Respondent, while a collective-bargaining agreement with UE was in existence, moved its plant from Los Angeles to Pomona, California, which is located some 35 miles from Los Angeles UE claimed the right to represent Respondent's employees at the new Pomona plant Respondent disputed that contention. On July 2, 1946, IBEW6 served upon Respondent a demand for recognition, claiming that it represented the majority of Respond- ent's employees. A week later, July 9, UE filed with the Board a charge alleging that Re- spondent committed certain unfair labor practices On July 15 IBEW filed with the Board a representation petition, and on August 20 Respondent also filed a representation petition In the interim between the filing of the IBEW's and Respondent's petitions, UE brought an action in the appropriate State court of California against Respondent and obtained therein an order temporarily restraining Respondent from refusing to recognize UE as the collective-bargain- ing representative of the employees covered by the then existing contract and directing Re- spondent to continue in effect the existing contract UE's charge was subsequently withdrawn and an agreement was entered into by and between Respondent, UE, and IBEW for a secret ballot election to be held under the auspices of the Board At the election held on December 20, 1946, 48 votes were cast for UE and 14 for IBEW Pursuant to the aforesaid consent-election agreement, the Regional Director for the Twenty- first Region on January 3, 1947, certified UE as the collective-bargaining representative of Respondent's employees in the agreed unit 9Some of the incidents described in this section antedated January 5, 1951, 6months prior to the filing of the original charge herein, and hence no finding of unfair labor practices may properly be made with respect to them. However, it was understood at the hearing herein that evidence concerning matters antedating January 5, 1951, would be admitted only as showing background circumstances relevant to the alleged unfair labor practices Accordingly, the undersigned does not find that the incidents which occurred prior to January 5, 1951, were unfair labor practices as such, but does find that they are indicative of Respondent's attitude prior to, and cast light upon its motives in connection with, the activities alleged in the com- plaint. 4The second amended complaint alleged, Respondent's answer admitted, and the undersigned finds, that during all times material herein allRespondent's production and maintenance em- ployees, including shipping and receiving employees, exclusive of clerical employees, watch- men, guards, supervisors, and professional employees as defined by the Act, constituted, and now constitute, a unit appropriate for the purposes of collective bargaining. 5 The IBEW local then involved was known as Lccal B-11. 39i555 0 - 54 - 30 456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD No further dispute arose between Respondent and UE over the question of representation of the former's employees in the appropriate unit until sometime in July 1950, when Respondent served notice upon UE of its election to terminate the then existing contract , after it had engaged in 21 months of unsuccessful negotiations with UE and after receipt by Respondent of a demand from IBEW to be recognized as the bargaining agent for Respondent ' s employees. On July 21 , 1950, IBEW filed a representation petition with the Board alleging therein that it represented the majority of the employees in the unit which the parties here involved agreed in 1946 was appropriate. A consent - election agreement was thereupon entered into by and between Respondent, IBEW, and UE and a secret ballot election was conducted by the Board on August 8, 1950, in which 78 votes were cast for UE, 28 for IBEW, and 1 for "neither union " On August 16, 1950, UE was certified as the statutory representative of the employees in the agreed-to unit.6 On October 25, 1950. a petition for a UA election was filed by UE and pursuant thereto the aforesaid Regional Director conducted a secret ballot election on November 27, whereat of the 124 eligible voters, 79 voted in favor of UE seeking a union-shop contract with Respond- ent and 33 voted against it. The last contract entered into by UE and Respondent, made effective as of September 1, 1950, provided that it was to remain in full force and effect until midnight of June 30, 1951, unless either party gave notice of termination , modification , or revision 60 days prior to June 30 If no notice was given the agreement was to be renewed from year to year The agreement also provided that either party might request the contract be opened on wages only, at any time during the term of the contract, upon 10 days' written notice The contract contained a no-strike and a no-lockout provision which, however, would cease to bind the parties if, the contract was properly reopened for wages , the parties were unable to reach agreement thereon within 60 days . The contract further provided that negotiations on proposed changes should not commence prior to 50 days before the expiration date and that the agree- ment should remain in full force and effect during the ensuing negotiations but with the understanding that on, or at any time after , the expiration date either party might terminate by giving 10 days' written notice to the other party. The contract also provided for a checkoff of dues of those employees voluntarily signing and presenting to Respondent a written authorization to that effect and UE agreed to indemnify Respondent against any lawsuits , demands, or claims arising out of Respondent 's compliance with the agreement's checkoff provisions. In December 1950, employees Tabor and Carters called at the home of the Respondent's advertising and sales promotion manager, Charles Cabana , Jr.9 Regarding this incident, Cabana testified that Tabor and Carter came to his home univited; that they told him a move- ment had been started " in the shop amongst a number of employees to resign from the UE" because they "were rather perturbed about" UE increasing the monthly dues9 and they inquired whether he thought "they could possibly get into trouble if they circulated a petition in order to get more people lined up to withdraw from the union", that after he told Carter and Tabor that he was unable to advise them, they suggested that he telephone Pryne and ask Pryne to come to his house; that he thereupon telephoned Pryne, told Pryne "there are two gentlemen from the plant down here that apparently have something serious to ask you," and he then asked Pryne if he was free to come to his house to talk to the two men, that Pryne, despite the fact he was suffering from a cold and did not know the nature of the employees' visit, 6 According to the credible testimony offormer employeeEdward E. Loghry, Ralph R. Pryne, Respondent's president, assembled the employees in the plant about a week or 10 days before the aforementioned election and told them that Respondent's products were being boycotted by IBEW, that Respondent needed IBEW labels on its products, and that he hoped the employees would vote "correctly" in the forthcoming election. 7 Tabor was one of Respondent's truckdrivers and Carter worked in the assembly depart- ment. 6Respondent does not dispute Cabana's supervisory status. It contended at the hearing and in its brief, however, that Cabana's anti-UE statements and activities cannot properly be at- tributed to it because Cabana "had neither supervision over employees in the bargaining unit nor any vestige of authority in the field of employee or union relations." The undersigned finds the contention to be without merit. sunder date of November 21, 1950, UE wrote Respondent, who, in turn, posted the letter on the plant's bulletin board, that commencing December 1 the regular monthly dues would be increased from $2 to $3. PRYNE & COMPANY, INC. 457 came to his house, that when Pryne arrived at his house, Tabor told Pryne, to quote Cabana, "There were a number of people that were unsatisfied with the present set up and [Tabor] wanted to know if he would get into any trouble[with management] if a movement ,[was] started to resign from the UE", that Pryne replied, according to Cabana's testimony, "as far as he was concerned he didn't think they would get in any trouble at the plant, but he iiougit they would be wasting their time", that Tabor then inquired about the "serious- ness of the supposed boycott of our products due to the fact that they didn't have any AFL label", and that Pryne stated, "there were a number of instances where our goods were returned or they were not installed because they did not bear AFL labels" and that on many occasions Respondent was forced to fill orders from its Newark, New Jersey, plant because those goods bore AFL labels Pryne testified that he told Tabor and Carter at the aforesaid meeting at Cabana's home that "unquestionably we have suffered a considerable loss of business" due to the fact that Respondent's products do not bear AFL labels, and that he also told them that as far as he was concerned he could not advise them regarding the circulation of a withdrawal petition because "a matter such as that was one in which I had no place, that all I could do was give them the facts and that any action they took would have to be by them, with no advice or counsel from the company " Sometime in January or February 1951,10 Tabor gave former employee Edward E. Loghry some slips reading as follows: To: Pryne & Co , Inc. I hereby advise you that I have resigned from Local 1421 U.E.RM.W.A., and that the authorization for check-off of my dues previously furnished you is hereby revoked, ef- fective as of this date Tabor then asked Loghry to circulate the slips in the paint shop and have them signed by those employed therein Before doing as requested, Loghrywentto his foreman, Morgan Miller, told him about the slips and asked whether he would "get in trouble" with Morgan if he circulated the slips in the plant Miller replied, according to Loghry's credible and undenied testimony, "No, but you had better see Max Lafferty, the plant superintendent, before doing so " Loghry further testified credibly and without contradiction that he then went to Lafferty, told Lafferty of his conversation with Miller, and that Lafferty replied that he was not supposed to let him circulate the slips but "what I can't see I can't very well stop " Loghry then returned to the paint shop, circulated the slips among the employees during working hours, and obtained signatures to about 20 slips. Under date of January 31, Respondent wrote UE that it had impounded the dues of certain named employees who had notified it to cease deducting their dues On February 16, Respond- ent informed UE that it would cease checking off the dues of employees who submitted written instructions not to make such deductions UE, by letter dated February 26, protested this con- duct, stating that it was a violation of the contract for Respondent to refuse to deduct the dues of those employees who had previously signed dues-deduction authorizations. Respondent's reply of March 30 did not contradict the assertions of UE's letter regarding Respondent's violation of the contract, but stated that Respondent intended to continue honoring withdrawals of checkoff authorizations Respondent, in the correspondence referred to, cited section 300 of the California State Labor Code it as authority for its position in refusing to make dues deductions However, Respondent only ceased deducting the dues of those employees who had notified Respondent of their desire to revoke the checkoff authorizations It did not refuse to check off the dues and, in fact, continued to check off dues of all other employees By letter dated January 3, UE advised Respondent that, pursuant to article XXVII, it was reopening the contract on wages only and requested a negotiation meeting The first meeting was held on January 11 UE requested a general wage increase of 15 cents an hour and Re- spondent stated that it would study the matter and try to give its decision within approximately a week. The second meeting was held January 13 Thereat, Carl Brant, UE's business agent, pointed out that a raise freeze was expected Henry Boynton, one of Respondent's labor relations consultants, stated that Respondent had weighed the problem from the viewpoint of the cost of living and had considered its present wage rates and was of the opinion that no increase 10 Unless otherwise noted, all dates hereafter mentioned herein relate to 1951. U This section, in effect, forbids the assignment of wages of a married person without the written approval of the spouse. 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be granted at that time Btynton further stated that Respondent would broaden its in- vestigation of area rates of comparable shops and would meet again with UE. Brant stated that if an increase was granted it should be retroactive to January 11 The third meeting was held January 23 Edward F. Kelly, Respondent ' s vice president in charge of labor relations , stated that Respondent ' s wage rates were in line with or better than wage rates paid by comparable companies in the Poniona area Brant replied that Re- spondent must be prepared to make a proposal regarding an increase Kelly refused to make a proposal and stated if it was ascertained that Respondent ' s rates were out of line they would then make a proposal Brant replied that the employees felt they had to have an increase and were at a loss to understand why there was no proposal from Respondent A fourth meeting was held on February 15 Federal Conciliator Goodwin was present at this meeting at the request of UE. At Goodwin 's request Brant detailed what had occurred at the three prior meetings Respondent ' s representative again stated that Respondent refused to grant any wage increase and that it certainly would not grant any retroactive pay even if an increase was granted Under date of March 16, Respondent wrote UE terminating the then existing contract. The fifth and final wage reopening meeting occurred on March 21 The Union requested that a 15-cent per hour increase, retroactive to January 11, be presented to the Wage Stabiliza- tion Board by joint petition of Respondent and UE. Respondent ' s representatives replied that it was putting into effect a general 4-cent per hour general wage increase effective March 22, whether UE agreed to it or not UE then requested that the Respondent make the increase retroactive to January 11, which request was refused Immediately following the conclusion of the aforesaid meeting, a bulletin was posted on the plant' s bulletin board informing the employees that Respondent had told UE, during the nego- tiating meeting held that day, that it was putting into effect a 4-cent an hour across -the-board increase effective March 22, whether the Union accepted it or not While discussions were being had with UE regarding its demands for a wage increase, Re- spondent's managerial staff was attempting to undermine UE in the eyes of the employees Thus, according to the credible and undenied testimony of former employee Richard R Royalty, Cabana told him, sometime during January or February 1951, during a conversation in Cabana' s office, "the company would be very glad to give [the employees] a raise of ten or fifteen cents an hour if the IBEW was in George E. Freeman , who is still in Respondent ' s employ, credibly and without contradiction testified that during February he complained to Cabana about Respondent sending to outside sources display work which he and other employees formerly did , that Cabana replied, to quote Freeman, "if I belonged to the right union things would be different", that he then stated, "I didn' t understand that because I thought your free choice is what you should have and that we had made our choice by voting " to which Cabana responded , " Well, you know the old man doesn' t want the UE in here He doesn ' t like them and they won' t be in existence much longer, anyway They are not financially stable" , and that on 6 or 8 other occasions Cabana told him he belonged to the wrong union Loghry testified credibly and without contradiction that sometime in January, February, or possibly in May , he asked Foreman Miller why Respondent did not bargain in good faith with UE because it seemed to him "every time something comes up to discuss we don't hit it off [ therefore] we will have to take care of some of those things in the next contract" and that Miller replied, "I don 't think there will be another contract with UE " Former employee Fred Treise testified that he did odd jobs at Pryne's home in addition to his work in the plant , that occasionally he drove to and from the plant to Pryne's home with Pryne, that commencing sometime in 1950 he had conversations with Pryne regarding UE and IBEW , that some of the conversations took place while lie and Pryne were en route to or from the latter' s home and others took place in Pryne' s private office at the plant, that on one occasion, when he was called into Pryne's office to repair an electric light, Pryne said to him Sit down a minute I would like to talk to you This is just off the record between you and me You know that this thing of the UE is getting mighty , mighty serious and frankly, they are not stable and sooner or later they are going to be washed up You know , as well as I do, that if you went out here and talked to the boys you could swing the boys to the IBEW, and you yourself would be earning $ 1 95 or $ 2 00 I don't know what the scale is in your field, but, sooner or later the UE is going to be washed up PRYNE & COMPANY, INC. 459 because they are financially not stable I don't have to tell you that they are Communist- infested Well, you can see the point Get into the IBEW and make your job pay a lot more money 12 Pryne denied making the statements attributed to him by Treise, adding, "I was very care- ful what I said to Mr Treise, because I was reasonably sure that anything I said to him would go immediately to the union business agent." Pryne further testified that on one occasion Treise came to his office and remarked that if the boys "swung over" to the IBEW Treise would receive about 25 or 40 cents more per hour because IBEW 's wage scale was higher than the UE's and that he replied, "Fred, I have no idea what the IBEW wage scales are and I have no knowledge as to whether you would or would not be making more " Treise favorably im- pressed the undersigned with the straightforward, sincere, and honest manner with which he testified On the other hand, Pryne's demeanor while on the witness stand clearly indicated to the undersigned that Pryne was withholding the true facts. Under the circumstances, the undersigned finds that Pryne made the statements attributed to him by Treise After the March 21 meeting, at which the4-cent per hour increase was announced, H. DeVoe Rea (head of the Biddle Trade Bureau , a labor relations consultant concern employed by Re- spondent), who attended the meeting, asked James W. Lambert (a former employee of Re- spondent), who had attended the meeting as a member of the UE negotiating committee, during a conversation which Rea initiated , whether Lambert was "a churchgoing man" and after Lambert had replied that he was a Catholic, Rea advised Lambert to consult his priest for Rea felt sure that if Lambert did so, Lambert "wouldn't be such a firm believer in the UE." Rea then remarked, to quote Lambert's credited testimony, "I don't think we will have to worry much about the UE after this contract expires anyway " When Lambert asked Rea what he meant by his last remark, Rea did not reply but merely walked away. i3 In his letter of March 16, terminating the then existing agreement, which only had been executed the previous October and still had about 3Z months more to run, Rea stated, in part: Pryne & Co for a considerable period of time has truly and honestly questioned motives and desires on the part of the professional leadership of the U. E. Serious doubt has been raised in the minds of the owners of Pryne & Co as to whether the leadership of the U. E. is genuinely interested in the welfare of its Union members, the Company, the community and the country as a whole Pryne & Co. fully realizes its obligation to bargain collectively with the legally chosen collective bargaining agency pursuant to provisions of the Labor Management Relations Act of 1947, and further gives assurances to you that it will comply fully with all provi- sions of governing law However, because there is serious doubt in the minds of owners of Pryne & Co as to the motives and objectives on the part of the leadership of the U. E. as afore indicated, and because of various occurrences , incidents , work stoppages, etc , having taken place under the leadership of the U. E., the Company believes that it is wise and in fact proper to terminate said existing collective bargaining agreement It is deemed necessary by Pryne & Co that before any further collective bargaining agreement is executed such collective bargaining agreement must necessarily provide adequate safeguards to the Company that uninterrupted production can prevail and that the U. E. will in no way attempt to interfere with, limit or otherwise obstruct production or interfere with harmonious relationship by and between the Company and its employees A copy of this letter is being made available to all the employees of Pryne & Co Inc >a 12 At that time Treise was receiving about $1 64 per hour. i3Rea did not testify Kelly testified that he heard Rea ask Lambert whether Lambert was a churchgoing man and Rea's suggestion that Lambert discuss UE with his priest, but denied that Rea stated to Lambert, "I don't think we will have to worry about the UE after this con- tract expires anyway" or any similar statement. Upon the entire record in this case the under- signed rejects Kelly's denials and finds that Rea made the statements attributed to him by Lambert. i4 Within a few days of the mailing of this letter, Pryne assembled the employees in the plant, read a copy thereof to them, and then said, "I read it, it is in black and white, and it means exactly what it says." In the past, as Pryne testified. Respondent's termination letters "merely" stated "in plain English that the contract would be considered terminated by us at a certain date " Furthermore, the, employees were not assembled and the letters read to them but, as Pryne admitted , copies thereof were merely posted on the plant bulletin board and the shop committee informed of "what we were going to do and why." 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Under date of April 6, UE wrote Respondent of its desire to modify the agreement and requested a meeting for the purpose of negotiations Under date of April 30, UE wrote Re- spondent stating that no reply had been received to its request of April 6 and again requested Respondent set a time for a meeting for the purpose of contract negotiations, adding that it was available for that purpose on May 3, 7, 8 , and 10 Respondent replied on May 2, agreeing to a meeting to be held May 10 at 3 p in At about the time of the above exchange of correspondence, or shortly before, Loghry had a discussion with his foreman, Miller, relative to contract negotiations between UE and Respond- ent During this discussion Miller said toLoghry, "I don't think there will be another contract with UE " Also, about this time, Vice-President Kelly and employee Kenneth Liscomb, who at the time of the hearing had been in Respondent's employ for approximately 51 years, had a conversa- tion, which Kelly initiated, wherein the relative advantages and disadvantages of membership in the said unions were discussed Liscomb credibly testified 15 that during the aforesaid conversation Kelly stated that "they didn't want the UE no more," that it was a well-known fact that "they didn't want the UE in there anyway that Ted Breashears and Arnold Swift were among the agitators in the plant, that Breashears and Swift had better watch their step" because he was going "to get them" and they "won't be around very long," that "You know it isn't too long before the contract ex- pires and I am going to get rid of that union ... by hook or crook," 16 that IBEW was a good American organization whereas UE was communistic and un-American, especially the latter's "top brass," that "You don't have the right union in there--the IBEW is a good American union," and that he "could get enough men in there so that when the election came up ... they would have enough men to more or less swing it to make sure it swung over to the IBEW." The first contract negotiation meeting, as differentiated from the previous wage negotiations, was held at 3 p in on May 10. It lasted approximately one-half hour. UE presented certain proposed changes in the agreement. Respondent accepted the list of proposals, stating that it wanted time to study them. Respondent did not submit any proposals Respondent agreed, how- ever, to submit its proposals prior to or at the next meeting which was scheduled for May 17 UE agreed to submit whatever additional proposals it might have by May 15 UE then requested Respondent to discuss the proposals which it had submitted but Respondent declined to do so, stating that it was not prepared to discuss them. On May 15, UE furnished Respondent with its additional contract proposals Respondent furnished UE with a list of its proposals No discussion was had, however, with respect to them. The next meeting occurred on May 17 and lasted from 3 to 5 p m The parties agreed to start by discussing both UE's and Respondent's proposals regarding the suggested changes in the existing contract It was also agreed to pass over for the time being any new proposals upon which the parties could not quickly reach an agreement for they felt that by so doing they could quickly arrive at the important points in issue in a discussion regarding the clause labeled "Agreement," providing for the continuation of the contract in the event of change of ownership of Respondent, UE stated the clause was not of the utmost importance and, therefore, no agreement being reached regarding this clause, further discussion thereof was postponed In the discussion of article I, entitled "Scope," UE stated that it was agreeable to the exclu- sion of office clericals, but that the factory clericals and watchmen who had been classified as watchmen-janitors in the existing agreement should be continued in the unit UE agreed that guards should be excluded With regard to article II, entitled "Recognition," UE stated that since the employees had voted at a secret election and had expressed their preference for a union shop, Respondent should agree to include in the contract such a clause 17 Respondent did not agree and further discussion with respect thereto was postponed is Kelly placed this conversation as having taken place prior to March 21 He denied making most of the statements attributed to him by Lrscomb. The latter was a credible witness and therefore the undersigned finds that Liscomb's version of what was said by him and Kelly to be substantially in accord with the facts The undersigned further finds that it took place as testified to by Liscomb; that is, during the latter part of April 16 For the past 2 years all authority to deal with labor organizations representing Respond- ent's employees was vested in Kelly. 17 The UA election was held on November 27, 1950, at which 79 of the 124 eligible voters cast secret ballots in favor of a union-security clause contract Respondent proposed that a clause be inserted under article II reading, "Union membership shall not be required of any employee as a condition of employment." PRYNE & COMPANY, INC. 461 With regard to article III, entitled "Discrimination," UE pointed out that, except for Re- spondent's proposal on section 4 of said article, Respondent ' s suggestion was covered in another clause of the contract Respondent then withdrew its proposal . With regard to the Respondent's proposal of section 4 of said article, 13 UE stated that that clause was not sub- mitted in good faith since UE represented the employees and it was not the Respondent's business to inquire into the Union ' s method of representation of the employees UE urged further that Respondent might use the clause to pry into UE's internal affairs With regard to article IV, entitled "Checkoff," UE pointed out that regular union dues had been checked off pursuant to contract provisions for many years and requested that the checkoff provision be retained Respondent proposed that no checkoff provision be in the new agreement Respond- ent's proposal was passed over until a later date The meeting concluded after it had been agreed that Brant would call Rea to arrange a date for the next meeting During the month of May, there was an exchange of correspondence between UE and Biddle Trade Bureau relative to arranging negotiating meetings By letter dated May 21, UE agreed to meet with Respondent on May 24, the date proposed by Biddle Trade Bureau UE, however, requested that future bargaining meetings be held more frequently and for longer periods Biddle Trade Bureau replied on May 22, stating that it felt that more frequent and longer meetings were impractical and proposed meeting in Pomona at 3 p m once a week to negotiate for a reaonable length of time and agreed to meet with UE on Thursday, May 31, at 3 p m By letter, dated May 25, the Union replied to Biddle Trade Bureau's letter of May 22, agreeing therein to meet with Respondent on May 31 at 3 p m UE stated in its letter that it was agree- able to meet at night and on Saturdays and Sundays if necessary, and specifically proposed that at the May 31 meeting the parties recess for dinner and resume negotiations after dinner On May 24, the parties conferred from 3 to 5 p m UE's proposal regarding section 2 of article V19 of the existing contract was discussed but no agreement was reached and further discussion thereon was postponed Respondent then proposed eliminating section 6, article V. 20 No agreement was reached Respondent, however, agreed to check the possibility of rewording this section and agreed to discuss it further at a later date Respondent then proposed that section 7, article V be eliminated 21 No agreement was reached on the proposal but Respondent agreed to consider rewording this section and further agreed to discuss it at a later date Regarding section 8 of article V, there was no discussion due to the fact that Respondent had not submitted a rewording of the section for purposes of clarification. 22 The parties then discussed article IX, entitled "Ifolidays " Respondent proposed certain changes in section 3 of said article and UE proposed that the entire article be rewritten Pursuant to the suggestion of UE, Respondent agreed to rewrite the article and discussion thereof was postponed until a later date The parties then discussed article X, entitled "Illness " With reference to section 1 of said article, UE proposed to eliminate the time limit required for an employee to notify Respondent in case of illness and to substitute therefor "Notify the Company as soon as practical " 29 No agreement was reached on this proposal and further discussion was postponed The parties met again on May 31, and the meeting lasted from 3 to about 6:30 p m Respond- ent's representatives , despite the fact that Kelly had attended practically all previous meet- ings, 24 insisted that a complete review of the contract clauses and the various proposals made by the parties be had , allegedly for the purpose of ascertaining which proposal had been agreed 18 This proposal reads as follows: "The Union agrees to represent fairly, accurately and impartially all the employees within the bargaining unit, and to abide by the wishes of the majority. " i9Regarding payment of double time for work inexcess of 2 hours overtime during a regular workday. 20 This section dealt with the equal distribution of overtime work among the qualified em- ployees in the department. 21 This section read: "Any change in the scheduled work day shall be subject to collective bargaining." 22Respondent proposed that this section be eliminated "subject to clarification 23 The contract then in existence required an employee absent due to illness to notify Re- spondent of such illness not later than the end of his regular scheduled shift unless unable to do so for a verified reason. 24Sherman, associate of Biddle Trade Bureau, was the other Respondent representative present at this meeting . The record indicates that a review of the past negotiations was solely for Sherman's benefit. 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD upon UE's representatives acquiesced in this procedure, after protesting that it was an utter waste of time to make the review. The parties, upon the completion of the review , agreed that articles VI, VII, and VIII had received complete accord 25 Although discussion was had with respect to articles V, XI, XIII, XIV, andXV of the existing contract , no agreement was reached with respect thereto except that the parties agreed to retain section 3 of article XIV of the existing contract entitled " Seniority The next meeting took place on June 7 The parties proceeded to discuss article XVI, en- titled " Discharges." Respondent proposed that sections2and3 thereof be completely revised After a brief discussion of Respondent ' s proposals , UE counterproposed that section 1 remain as in the contract with the addition of the word " discipline", that sections 2 and 326 remain as they were, but Respondent ' s proposal on section 3 be added as a new section 5 , and that section 4 remain as it was in the contract 27 Following UE's counterproposal , there was considerable discussion regarding Respondent's proposal on section 2 dealing with "Advocacy of the overthrow of the United States Govern- ment by force or violence " as a cause for discharge The parties discussed this section at some length There being no agreement , the entire article was postponed for future discussion. The parties then discussed article XVII , entitled "Wages ," and in the discussion that followed UE stated it thought a wage increase of 32 cents was justified At Respondent ' s suggestion, this article was passed over to be taken up again when all cost items were under discussion After some discussion of article XVIII, entitled "Job Classifications ," the parties agreed to discuss this article at the next meeting 25 These articles appeared in the then existing contract and neither party had proposed any changes with respect to them 26 Respondent proposed to change article XVI to read as follows: Sec. 1 The company shall have the right to discharge or discipline any employee for just cause. Sec 2. Just cause for discharge or discipline shall include, but not be limited to in- competency , inefficiency, dishonesty, advocacy of overthrow of the United States Gov- ernment by force or violence, refusal to fulfill in a cooperative manner reasonable instructions of a superior , any wilful or gross negligence , habitual negligence, failure to comply with established shop rules and any act or actions that seriously interfere with regular routine of production and operation of the plant Sec. 3 In the event an employee shallbedischargedor laid off for disciplinary reasons and he believes he has been unjustly dealt with, his complaint shall be adjusted pursuant to the method herein provided for the adjustment of grievances . He shall have the right to present his grievance to the steward before leaving the plant. His complaint must be taken up with a representative of the Company within two (2) working days of such discharge or lay-off. If it is decided under the provisions of this agreement that an injustice has been dealt the employee with regard to his discharge or lay off without any fault on the part of the employee, then the Company shall reinstate the employee and pay him full compensa- tion If it is decided that an injustice has been dealt the employee but that the employee was not without fault, the Company may be required to reinstate the discharged or laid off employee with such compensation, if any, as may be agreed upon by the parties settling such difference. 27 Article XVI of the contract then in force read: Sec 1. Employees shall be discharged only for just cause Sec. 2 The Union shall have the right to challenge the sufficiency of cause for dis- charge of any employee and in such an event, the matter shall be handled in accordance with the grievance and arbitration procedure established herein Sec 3. No employee shall be discharged for incompetency or inefficiency without at least one warning in writing ( with a copy to the Chief Steward) Such warning shall not be followed by discharge within less than three ( 3) working days Warning notices shall be considered ineffective after ninety ( 90) days. Sec. 4 This article shall not be applicable to probationary employees . . The Company shall have the right to discharge probationary employees for any cause PRYNE & COMPANY, INC. 463 Toward the close of the meeting , UE again expressed its concern that the parties were only meeting once a week and suggested that meetings be held at more frequent intervals or for longer periods so that negotiations could be completed before the termination of the then existing contract Respondent countered with the statement that the preceding year the parties had operated for a period of 2 months without a contract while negotiations were in progress without any change in the friendly relations between management and employees Brant pointed out that no worker in his right mind wanted to work without a contract He then stated that he knew of no talkofastrikeuntilhe had read about such a possibility in one of Pryne ' s numerous letters to the employees Brant further stated that UE intended to make preparations for such a possibility in the event there was no contract by June 30 The parties then recessed on the motion of Respondent at 5:30 p in and agreed to meet on June 14 at 3 p m 28 On June 14 the parties again met This meeting lasted from about 3 until about 6.30 p m Article XIX, concerning which neither partyhadsuggesteda change, was read and agreed upon by the parties Change of section 6 of article XX, entitled " Leave of Absence," as proposed by UE was then discussed Respondent indicated that it would agree in principle with the proposal but suggested that it be permitted to rewrite the provision All of article XXI, except section 4 which dealt with the matter of a union bulletin board , was agreed upon Discussion of section 4 was postponed for a future discussion Article XXII relating to military service was discussed . The parties agreed in principle and Respondent proposed that it rewrite the clause to conform to the practice then in effect in the plant Article XXIII, entitled " Grievance Procedure," and article XXIV, entitled " Rights of Management ," were discussed but no agree- ment was reached and discussions thereon were postponed for future meetings Articles XXV and XXVI, concerning which neither of the parties had made any proposals for change, were agreed upon. Article XXVII, entitled "General Conditions ," as proposed by Respondent was then discussed but no agreement was reached At the conclusion of the meeting , UE again expressed concern over the fact that Respondent had not manifested sufficient seriousness about negotiating a new contract and suggested that Respondent consider the contract its most pressing business between that date and June 30, the date of expiration of the contract UE again asked for more frequent and lengthier meetings The parties agreed to meet on June 19 at 1p.in On June 19, the parties met from 1 to 5p m At the opening of the meeting , Brant pointed out that the parties had been over the proposals point by point on a number of occasions, that a period of a month and a half had gone by since the start of negotiations , and that it was absolutely necessary to consummate a new contract before the old one expired on June 30 Brant further pointed out that reasonable bargaining called for Respondent to make a proposal which would permit the consummation of an agreement rather than a discussion of clauses point by point , as Respondent has been continuously doing In an attempt to achieve an early contract , LIE made a "package" proposal. Respondent stated that the "package deal" repre- sented only a slight change in the position of the UE and that, therefore, it could not accept the proposal Respondent recommended that negotiations continue and that the contract should be discussed item by item in an effort to arrive at a contract that would be satisfactory to both parties Brant protested , stating that Respondent ' s attitude did not indicate a desire on its part to reach an agreement and that some of Respondent ' s proposals bordered on unfair labor practices Brant then stated that he would contact the Federal Mediation and Conciliation Service and enlist its aid The parties scheduled the next meeting for June 27 at 1 p. m The parties met from 1 to 5 p in on June 27. Again Respondent proposed reviewing the contract from the beginning, clause by clause Brant pointed out that this would be repetitious and if such method was followed the parties could not possibly complete a contract by June 30. Brant then requested that Respondent make a proposal which would permit the consumma- tion of an agreement rather than a discussion of clauses point by point . However , Respondent insisted on going over the contract , clause by clause, which was done The parties then proceeded with article I of the contract and reviewed the prior negotiations Article I was discussed and no agreement was reached The parties then discussed the checkoff provision of article IV. LIE stated that Respondent ' s position regarding this checkoff provision was unreasonable and that its adamant position with respect to it constituted a major point of difference in reaching an agreement Respondent responded that under conditions where a checkoff is the only point at issue it is not considered a bargainable item by the Board and, further , that from management' s viewpoint , checking off dues was an expense which Respond- ent desired to eliminate With regard to theunion- security provision of this article, UE stated 28 All negotiation meetings recessed at Respondent 's request. 464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that its position would be influenced by Respondent's position concerning the balance of the contract The parties then proceeded to discuss article V. Respondent withdrew its proposals relating to sections 6 and 7 of said article. Article IX was passed over at the request of Respondent A brief discussion ensued regarding article X, entitled"Injuries," but no decision was reached There was some discussion regarding UE's proposal relative to vacations as expressed in section 5 of article XIIL Respondent agreed to submit for consideration at a later date a counterproposal that would prorate vacations in relation to the number of years of service Some discussion then took place relative to article XIV, at which time UE requested a 5-minute recess After the recess, Brant proposed that the provision regarding seniority of article XIV of the existing contract be continued, that the Respondent and UE drop all proposals except the UE's proposal for 1 additional paid holiday and a 9-cent general wage increase Respondent then requested a recess for the purpose of discussing the proposal After the recess, Respondent stated it would not accept the Union's proposal, pointing out that it had canceled the contract because it felt there was need for changes in some of the items that had caused friction in the past, that other items needed clarification and, in view of world condi- tions, changes were necessary in the present contract The next meeting was scheduled for June 29 at 1 p. m. On June 29, the parties met from about 1 to 4:30 p. m. The parties proceeded to discuss articles XIV through XVII, inclusive UE requested that meetings be held that night, the fol- lowing day, and Sunday, but Respondent refused UE then requested Respondent to extend the agreement then in effect pending negotiation of a new agreement Respondent refused Brant then said he desired to continue negotiations, but if no new agreement was reached or the old UE contract continued UE would call a strike at midnight, July 1 During the recess at the meeting on June 29, a notice was posted by Respondent on the plant bulletin board informing the employees that Respondent would operate the plant during the strike During the week commencing June 25, UE held several meetings of its membership whereat discussions were had relative to the advisability of strike action On or about June 29, the membership voted to strike The strike commenced on July 2 Cabana testified that twice during the day of Friday, June 29, Freeman told him about being concerned regarding the impending strike and inquired whether he had any suggestions about preventing it, that on each occasion he told Freeman that although he, too, was greatly con- cerned about the announced strike, he did not know of any feasible solution for preventing it because the men had voted to strike and hence "it was cut and dried" and "the die was cast", and that he promised Freeman to contact him in case he thought of any "ideas" or "loop- hole" to prevent the strike Cabana further testified that that evening the idea came to him that the strike could be prevented "if the men would come back to work on Monday they could continue to work during negotiations"; that he was unsuccessful in reaching Freeman on the telephone that evening in order to convey his thoughts to Freeman because Freeman had no home telephone, that he telephoned Tabor, Y9 whom he knew lived near Freeman, and asked Tabor to inform Freeman that he would like to see Freeman because he had "an idea" how to prevent the strike; that Tabor stated that "a great many of the people didn't want to strike", that he remarked "that was pretty difficult to believe, in view of the strike vote that had been taken," and the majority had voted to strike; that Tabor "pointed out the fact that there were about 30 percent" of the employees who did not care to strike, and that he remained home all evening waiting for Freeman and Tabor but neither one appeared. The next morning, June 30, Tabor went to Freeman's home and informed Freeman that Cabana would like to see him En routeto Cabana's home, Tabor and Freeman noticed Cabana entering a drugstore located about 2 blocks from the plant and they followed Cabana into the store Regarding the conversation which ensued in the drugstore between Freeman, Tabor, and Cabana, Freeman testified that he asked Cabana, "Do you want to see me? ", that Cabana replied in the affirmative and then said that everyone would be "better off" if the strike did not occur, adding, "you know that the UE is the only thing that is standing in the way", that Cabana then stated he could probably get an agreement between the Company and the men, without the aid of the UE, and that he replied that he "couldn't see that way" because the 29 As found above, Tabor and Carter came to Cabana's home in December to discuss the withdrawal from UE. PRYNE & COMPANY, INC. 465 employees "had made [ their] choice and that is theway we thought we would continue " Free- man further testified that during the said conversation Cabana also remarked, "Mr Pryne didn't have anyting against the men in the shop, it was the union he disliked", that Cabana suggested that the employees enter into an agreement with the Company without UE being a party thereto, that when he reminded Cabana that Biddle Trade Bureau represented Respond- ent and , absent the aid of UE, the employees would have no one to represent them, Cabana replied Respondent would dispense with Biddle Trade Bureau's services if the employees forsook UE. Regarding the above-mentioned talk with Freeman and Tabor, Cabana testified that he had stated that the men should not strike but continue working and allow negotiations for a new contract to continue, that he also stated that if Pryne did not live up to the statements con- tained in the letters he previously sent to the employees, then, in that event, he was sure the employees would unanimously vote to strike, including him and others not in the bargaining unit, and that Freeman replied that his suggestion was "worth considering" and would inform his fellow workers about it at the meeting which had been called for that morning On cross-examination Cabana further testified that during the aforesaid conversation he "may have" suggested that Freeman see Pryne, that he did not "think" he stated that Pryne "doesn't have a thing against the men in the shop, that they are good men" but that Pryne "wouldn't have a thing to do with the union", that he did not "recall" Freeman "exactly" saying to him, "You want us to give up the union, which protects us, and the Company will still have the Biddle Trade Bureautell them how to chisel us out of our rights", 30 and that in response to Freeman's remark, "What you are asking us to do is sell out the Union They have called for a strike," he replied , "You are putting words in my mouth You can interpret [ my remarks] any way you want to, but you are working with Mr Pryne If you can live without wages for the next few weeks, or as long as[ the strike lasts] , that is your business. Me, I can't. Maybe you are better off than I am." Upon the entire record in the case, the undersigned is convinced, and finds, Freeman's version of what transpired during his conversation with Cabana on June 30 to be substantially in accord with the facts The undersigned further finds that Cabana made the statements which Freeman attributed to him. Royalty, testified credibly and without contradiction that about an hour before the employees were to take the strike vote he was in Cabana's office; that during the conversation that en- sued therein between him and Cabana, the latter said, "I hope you want your job If you don't vote 'no', you most likely won't have a job", and that when he replied, "I will do what the majority of the people want," Cabana retorted, "You are levelheaded and you will vote the way you should." On July 1, UE sent Respondent a telegram requesting a meeting on July 2 The telegram charged Respondent with refusing to bargain in good faith and concluded with the statement that if Respondent refused to meet and negotiate on July 2, UE would file an unfair labor practice charge with the Board alleging "refusal to bargain in good faith and other illegal acts." By letter dated July 2, Rea replied denying the allegations of not bargaining in good faith and other "illegal acts" but did not set a date fora negotiating meeting By telegram of July 2, addressed to Respondent, Brant requested a meeting on July 3 On July 3, Pryne in- formed UE by telegram that all communications for negotiations had to be directed to Rea On July 4 Brant telegraphed Rea requesting a meeting on July 5, 6, 7, or 8 Not having received a reply to this telegram, Brant telegraphed Rea on July 5 requesting a meeting on July 6, 7, or 8 On July 5, Respondent sent to each of its employees who had not reported to work since the commencement of the strike a letter requesting said employees to report to work on July 9, pointing out that if they did not so report, they might be replaced. Biddle Trade Bureau, by letter dated July 5, suggested a meeting be held July 11 at the offices of the Federal Conciliation Service in Los Angeles On July 6, UE telegraphed Rea acknowledging receipt of his letter of July 5, agreed to the July 11 date suggested by Rea, and requested a meeting at an earlier date Later that day, July 9, UE telegraphed Rea that it would meet with him at the conciliator's office on July 11 On July 11 the parties met at the offices of the Federal conciliator from 3.15 to 5 10 p m 31 Respondent had a court reporter present UE objected on the ground that the 30Cabana admitted, however , that Freeman mentioned "The Union represents us, lust as Biddle Trade Bureau represents Pryne & Company." 31 All subsequent meetings were held at the Los Angeles offices of the Federal Mediation and Conciliation Service. 466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presence of the reporter was not indicative of good-faith bargaining Respondent insisted that the reporter remain Ile did so and made a verbatim report of what transpired Hubbard, an associate of Biddle Trade Bureau representing Respondent together with Rea and Kelly, opened the meeting by giving a resumeofthe bargaining history up to that point 32 Respondent then submitted two additional proposals, one waiving the right of either party to demand bar- gaining during the life of the contract on any point whether raised in the contract or not, and the other providing that in the event of a violation of the contract by UE, that organization shall be liable for all monetary damages suffered by Respondent, including loss of profits Rea, for Respondent, then asked if UE would renew the contract without any wage or vacation change . UE inquired if that constituted a firm offer When Respondent did not reply, the matter was dropped UE then proposed the old contract plus a 9-cent an hour general wage increase, subject to Wage Stabilization approval, without any additional paid holidays Respondent rejected the proposal UE then inquired if Respondent had any suggestions and Respondent replied, "We believe the proposals that we have made are fair and just and that we should settle this thing on the basis of the agreements already reached plus the Company proposals that have been made " UE did not accept Respondent's proposal and proposed the old agreement, plus all changes already agreed on, plus a 9-cent an hour increase subject to Wage Stabilization Board approval Respondent rejected the proposal and raised the question concerning the wage re- opening clause of the 1950 contract UE offered to waive the wage reopening clause Respond- ent proposed the old contract , plus all modifications already agreed on , plus all other changes which had been proposed by Respondent , and with no reopening clause for 1 year UE rejected this proposal Rea, after some further discussion , requested that the meeting conclude, adding that there was no "rush " in connection with the setting of the next negotiating meeting He also announced that before meeting again he desired to obtain the typewritten minutes of the meeting The next meeting took place on July 18 At the opening thereof UE pointed out that Respond- ent had stated that it wanted to study the transcript of the previous meeting in order to be able to determine what its officials ' attitude would be toward UE' s proposals and then inquired if Respondent had any proposal to settle the strike Respondent at that time stated, among other things , that it was particularly interested in theUE's responsibility for damages due to viola- tion of a contract , if one was entered into After some discussion of the matter Respondent proposed that UE post a $50,000 performance bond Respondent also stated that it did not have a "package" proposal to make but desired to negotiate on the contract point by point Respond- ent then enumerated various points upon which the parties had not reached agreement After discussing the points still not in agreement , UE urged that the parties continue the meeting that evening Respondent refused UE then stated that it desired to meet more often than once a week Hubbard pointed out that while Respondent' s negotiators had authority within limits to bargain and could make most of the decisions "at the same time it is well to check with your principals as you people do " Hubbard further stated that "as soon as we have a chance to look over the transcript then we will set a date for next week " The meeting concluded with the understanding that Respondent would notify the conciliator within a few days so he could arrange a meeting for the following week On July 25 the parties met from about 3 40 to 5:45p in Respondent opened the meeting by stating that it did not have a court reporter present because of UE's objection Respondent then proposed starting at the beginning of the contract to discuss the contract point by point or to discuss the points of difference point by point UE objected and suggested a caucus with the conciliator for the purpose of explaining the situation to him After the UE caucus with the conciliator, the conciliator caucused with the Respondent After the recess, in response to a question by UE for a proposal from Respondent to settle the dispute, Respondent replied, "Tile Company proposes that there be no wage increases, that there be no wage reopening, that there be no checkoff, and that the Union should offer counterproposals to the Company's proposals " Respondent then repeated that it had made no "package" proposal and desired to negotiate on a contract, clause by clause The next meeting occurred on August 6 and lasted from about 4 to 4 50 p m The meeting had been set for 3 p in but representatives of Respondent did not appear until about 4 p in Respondent offered 14 proposals UE stated that it agreed to accept Respondent's proposals Nos 1, 3, 7, and 11, but it could not agree to Respondent's proposals 2, 4, 5, 6, 10, 12, and 2 This resume was made over UE's strenuous objection PRYNE & COMPANY, INC. 467 13, 33 that with regard to Respondent's proposals Nos 12 and 13 it had counterproposals which it submitted at the time, that with regard to Respondent's proposals 8, 9, and 14, it was in general agreement subject to further discussion. UE then requested that its counterproposals be discussed Rea, for the Respondent, stated that he was not going to discuss them that day He said, "We are leaving right now " UE again asked Respondent to stay and discuss its counterproposals, but Respondent's representatives walked out of the meeting at approximately 4.50 p m , without discussing the proposals which had been submitted by UE On July 23, Respondent instituted an action in the Superior Court of the State of California for the purpose of enjoining the commission by UE adherents of acts of violence and mass picketing On that date the court issued an order to show cause why the relief should not be granted and restraining all persons from engaging in any unlawful picketing. On the return date, August 1, the court continued in effect the restraining order and adjourned the hearing on the petition until August 7, with instructions that UE and Respondent meet and negotiate for the purpose of settling their difficulties. On August 7, the court again continued the hear- ing on the petition for injunction until August 13, and again instructed the parties to continue negotiations About 2 or 3 weeks after the commencement of the strike, Royalty met Kelly He inquired of Kelly about "the chances" of going back to work, Kelly replied that if Royalty inquired at the plant's employment office for work and if there was a vacancy Royalty would be given work, Royalty then asked Kelly why Respondent would not sign a contract with UE, to which inquiry Kelly replied, to quote Royalty's credited testimony, "he had dealings before with the UE on the East Coast and they had nothing good for the Company " On August 8, the parties met from about 9 25 a m until noon They discussed the proposals and counterproposals made by both Respondent and UE at the preceding meeting without any agreement being reached UE stated that it was willing to continue meeting that afternoon or that night or the following day Respondent refused to do so. It agreed, however, to meet on August 10 UE then asked Respondent to commit itself for a definite length of time for that meeting, but the Respondent refused to do so 33 Proposal # 1. All agreed to proposals shall be incorporated in the new agreement. # 2 No wage increases. # 3. Respondent agrees to plant clericals being included in bargaining unit. # 4 Open shop- -no checkoff #5 All employees hired after commencement of strike shall have full seniority and em- ployment rights. All individuals who did not work regularly between commencement of strike and the signing of the agreement, if Respondent decided that those individuals had been replaced, then they have no seniority rights #6. Neither UE nor its members shall harass, intimidate, or coerce any employees by means of name-calling, boycott, silent treatment, etc. If, in Respondent's opinion, any member of UE engages in such conduct, that individual may be discharged forthwith. If any representative, agent, or any individual acting on behalf of UE engaged in such con- duct, Respondent may then rescind the entire agreement. # 7. Respondent withdraws its proposal regarding steward's seniority status #8. Holiday clause of the old contract to be retained. # 9. Seniority clause of old contract to be retained # 10. Respondent reserves to itself the sole right to decide if an employee is incompe- tent to perform his assigned tasks. Respondent may also discharge or otherwise discipline an employee who advocates the overthrow of the United States Government by force or violence. #11. Bulletin board clause of old contract to be retained. #12. Contract to provide for ano-strike clause. If the provision previously proposed is not acceptable to UE then UE is to submit a clause spelling out what recourse Respondent has against UE "in event of a wildcat or other type of coercive interference with the business of the Company in violation of the terms of the agreement " f13. Withdrawal for the posting by UE of a performance bond. In place of its previous proposal, Respondent proposed that the agreement's "no-strike clause be so worded as to spell out the Company's rights in the event of a violation of the agreement" plus the remaining portions of Respondent's former proposed conditions clause including "the waiver clause." # 14 Contract to run for one year without a reopening clause. 468 DECISIONS OF NATIONAL LABOR RELATIONS HOARD The August 10 meeting lasted from about 9 a m until noon. The parties discussed and reached agreement on the no-strike clause and some sections of the discharge clause UE accepted Respondent's proposals of August 6, relative to holidays and seniority. UE then made a proposal to end the strike on the basis that all strikers return to their jobs with full senior- ity; that the old contract be reinstated plus modifications already agreed upon, and that the remaining issues, including wages, be submitted to arbitration. Respondent rejected this proposal. Shortly before noon, Respondent requested the adjournment of the meeting The Union requested that the meeting reconvene that afternoon Both Hubbard and Kelly, repre- senting Respondent, stated that they had appointments that afternoon and could not meet with UE. UE then suggested a meeting for that night or for the following day (Saturday) or Sunday or Monday Respondent's representatives replied that they could not meet before the following Tuesday. The parties set the meeting for August 14 at 9 a m On August 13, the continued date of the hearing on the petition for injunction, Judge Gates stated that he was not satisfied with the frequency of the negotiations or the progress made, and at his direction a stipulation was entered into by the parties continuing in effect the temporary restraining order, until August 29 The stipulation stated that the parties would continue negotiations and meet not less than 3 days a week for at least 5 hours each day until such time as an agreement was reached or until the Federal conciliator should advise the parties that further meetings would be fruitless The August 14 meeting lasted from about 9 a in. until noon The parties discussed Respond- ent's proposals of August 6, concerning Respondent's right to discharge and management pre- rogative to set job standards as well as several other points No agreement was reached on any point, although to severalUE proposals Respondent's representatives replied, "We will consider it and let you know," adding that they could not give an answer to any proposal until they checked with officials of Respondent Respondent refused to meet with UE that afternoon or evening, although requested The parties agreed to meet on August 16 at 1 p in and on August 17 at 9 a in The next meeting occurred on August 16 and lasted from about 1 to 6 p in Kelly was not present at this meeting due to the fact that he had taken a business trip However, Eckhardt, Respondent's personnel director, was present in his place and stead. The principal matters discussed were the proposal of Respondent to include as a cause for discharge "the advocacy clause" and the proposal, giving Respondent the unilateral right to put in effect an incentive plan In the discussion which ensued regarding the incentive plan, Respondent maintained that it had the authority to install the incentive plan without the right of negotiation or UE's right to question the plan UE requested Respondent to withdraw its proposal because it was not a collective-bargaining arrangement since it provided for a unilateral determination for the establishment of an incentive plan without negotiation Respondent replied that it would not withdraw the proposal UE then stated that the Respondent had been "hanging on to this posi- tion since May 15th " Hubbard, for the Respondent, replied, "We might hang on io this posi- tion for ten years and give it up That would not be insisting on it " The parties then dis- cussed the Respondent's proposal that it have the unilateral right to establish work standards There was no agreement relative to this proposal and the meeting concluded The next meeting took place on August 17 and lasted from about 9 a m. until 3 p m After a lengthy caucus at the inception of the meeting, Respondent asked for UE's position on its sick-leave and job-classification proposals UE replied that it was prepared to withdraw those proposals if agreements were reached on other points, but that as long as Respondent insisted on certain other proposals it wanted to retain these points as bargaining proposals Wage rates were then discussed and Respondent insisted that it could not offer any wage increase Although Hubbard had announced at the previous meeting that he had authority to alter Re- spondent's position, at this meeting he stated that he had no such authority and, therefore, no definite answer to UE's counterproposal on the question of discriminatory treatment of em- ployees could be given UE then proposed a "pledge of harmonious relations" clause Hubbard replied that such a clause might cover the matter but made no definite commitment UE then made a counterproposal regarding the grievance procedure After a lengthy caucus, Respond- ent replied that the proposal was logical and that Respondent would give its answer with respect to it at the next meeting UE pressed for an immediate answer and suggested that Hubbard telephone Respondent's officials in an effort to settle the matter Hubbard refused Hubbard then stated that he did not have any other proposals to make at that time but would be prepared to make some proposals at the next meeting On August 21 the parties met from about 9:35 a m until 3 30 p in Although the meeting was scheduled to start at 9 a in , the parties did not get started until 9:35 due to Hubbard's late arrival at that time. Eckhardt did not appear until 9:50 a in. When Eckhardt appeared he and PRYNE & COMPANY, INC 469 Hubbard caucused from about 9 50 until about 10:25 a, m. The conciliator had to leave at 11 30 a m , at which time UE proposed that Respondent and it remain in session and attempt to make some progress towards settling the dispute Hubbard replied that he was leaving and left at 11.35 a. in There was relatively little discussion at this meeting The parties reconvened at 1 45 p m There was some discussion of proposal No 6 of the Respondent's proposals of August 6 31 UE proposed a stipulation to the effect that there would be no discrimination against any returning striking employee Hubbard stated that none of the employees had been notified that they had been terminated; that he did not know Respondent's position with regard to reinstating employees who went on strike; that he did not know if anyone would be considered replaced, and that Respondent would determine its position at the end of the strike Hubbard was then asked if he had any proposals to make and he replied in the negative The meeting then concluded The next meeting took place on August 23 and lasted from about 1 45 to 5.55 p m At the previous meeting there had been a discussion relative to the checkoff and Hubbard had said that he would obtain information on the cost of the checkoff The conciliator stated to Hubbard, "You were going to check on the Company's position " Hubbard caucused with Eckhardt Upon returning Hubbard stated that he had been using the time to check with Respondent as to its position Hubbard specified six steps which were necessitated by the checking off of dues. He stated that he did not know the cost involved The parties then discussed the "advocacy" clause and "incompetency" clause of the discharge article, without any change in position Employees Freeman and Swift of UE's negotiating committee asked why only half of the vaca- tion payments had been paid the strikers by Respondent Hubbard replied that he did not know but that he would advise them the following day Respondent's representatives caucused at 4-30 p. m and returned to the meeting at 5.30 p m , stating that they had no further proposals to make On August 24 the parties conferred from about 1:25 to 5:40 p m Respondent was represented at this meeting by Sherman and Stout, associated with Biddle Trade Bureau, and Eckhardt, none of whom was completely familiar with the state of negotiations up to that time Sherman had not been at any conference negotiation for the preceding 3 months Stout had been at only 1 previous meeting and Eckhardt had been at only 2 previous meetings UE asked if Respond- ent had any proposals to make for settling the strike other than those which had previously been "made. Sherman replied, "Suppose we answer that after we recapitulate the points agreed to " Brant pointed out that the parties had gone over those many, many times Sherman stated that Respondent's representatives were not familiar with the status of the negotiations The parties then proceded to recapitulate the points in disagreement to reply to UE's question asked at the beginning of the meeting about settling the strike, Sherman stated that Respondent had no other proposal to make except to reiterate and discuss the parties' previous positions At the request of Respondent, the parties recessed from 3 to 3:50 p in Upon reconvening, UE asked if Respondent would agree to a modified or progressive union-shop clause, to which Sherman replied, "We will consider " UE then asked if Respondent would agree to a checkoff if UE dropped its union-shop proposal, to which Sherman replied, "We will consider." Re- spondent was then asked if it would agree to a modified union shop if UE dropped its demand for a checkoff, to which Sherman replied that Respondent would consider, adding that he was not prepared to state Respondent's position. Freeman, a member of the negotiating committee, then asked why Respondent had only paid the strikers half of the vacation pay due them. Sherman replied that Respondent did not know whowas coming back to work and, besides, Re- spondent only paid for vacations onthebasis of 6 months' service UE then pointed out that full payment was due to all people who had completed 1 year of service Sherman asked for UE's position on the waiver and termination clauses UE replied that it could not agree to these clauses until they knew what was going to be in the contract, that if the contract terms were satisfactory UE might agree to those proposals. Respondent recessed from 4:38 until 5 p in. Upon resuming negotiations, UE proposed that all provisions theretofore agreed upon be placed in effect; that the provisions of the 1950 agreement, except as modified, be placed in effect, that all strikers be reinstated with full seniority rights, that the parties submit to arbitration all issues remaining in dispute Sherman replied that he could not give an answer without study and without consultation with his principals When UE proposed relinquishing its proposal for a union shop if Respondent agreed to UE's for a checkoff, Sherman took the posi- tion that he would study the bargaining values involved, adding that until that was determined no decision would be made S4Regardmg harassment, intimidation, and coercion of employees by UE or its members. 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On August 27, the parties conferred from about 9:36 a m until about noon The meeting was scheduled to start at 9 a in Respondent ' s representatives , however , did not appear until ap- proximately 9:36. There was some discussion of the matter of arbitration as proposed by UE at the preceding meeting. Respondent rejected this proposal At about 9 52 Hubbard received a phone call A few minutes later he returned and requested that the Respondent's representa- tives caucus. At about 10:30 Respondent's representatives returned to the meeting and Hub- bard announced that he had been advised that at the State court hearing relative to the petition for injunction UE's counsel had requested and obtained a continuance; that Respondent had agreed to the continuance provided that the stipulation of August 13 executed by the parties was canceled , that since Respondent was now under no compulsion to continue the scheduled meetings after August 29, he was canceling the meetings scheduled for August 30 and 31, and that he would continue the present meeting only until noon. Hubbard refused to discuss the date for the next meeting , stating that he would communicate with the conciliator regarding it The parties then discussed the duration of contract and reopening clause without reaching agreement They also discussed wages, without reaching agreement The proposal regarding dues checkoff was also discussed Since Respondent did not have the figures representing the cost of the dues checkoff at the meeting, although at several previous meetings it had agreed to make such figures available toUE , noagreement was reached with respect to it The parties then agreed to draft those matters which the parties had agreed to in principle . Respondent's representatives caucused at 10 : 57 and returned to the meeting at 11 20 The meeting ended at about noon without agreement being reached on any issue The next meeting occurred on September 20 and lasted from about 1 : 30 to 2: 30p m UE proposed that the parties sign the old contract plus changes already agreed upon, plus full reinstatement of all employees on strike without discrimination No agreement was reached On October 2 UE called off the strike. On October 24 the parties conferred forthelast time. UE stated that Respondent's proposals regarding sections 1, 4, 5, 6, and 7 of article 27, entitled "General Conditions," a were un- $ These proposals were submitted by Respondent on May 15 The proposed provisions never appeared in any previous contracts between the parties , and read as follows: Section I. The Company may require a non-Communist affidavit from any individual or individuals claiming to represent the Union in any capacity before recognizing such in- dividual as a representative of the Union The Company may refuse to confer, meet with, or bargain with any such person or persons who decline to furnish such affidavit or affi- davits. Such affidavit shall affirm that the individual is not a member of the Communist party or affiliated with such party and that he does not believe in, and is not a member of, or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods. Section II. All provisions of this agreement shall be subject to, and superseded by the laws, rules, regulations and orders which may be imposed by the Government of the United States and the State of California Section III Shop rules, as required by the Company, shall be established solely by the Company with the understanding that they shall not violate any of the provisions of this agreement. Section IV. Oneofthebasic purposes of this agreement is to obtain through cooperation between the parties the greatest possible individual and yearly production, and the Union agrees that it will not, directly or indirectly, oppose or interfere with the legitimate and reasonable efforts of the Company to maintain and improve the skill, efficiency, ability and production of the worker, the quality of its products or the installation of improved methods and facilities of production This also includes the right to establish modern plans of wage administration consisting of job evaluation and an incentive plan based on extra earnings for above-standard production arising from increased effort on the part of the employees, the right to grant merit increases and also the right to distribute a bonus, annual or otherwise, to such employees and in such manner as the Company may deem fit Section V. The Union agrees not to use or issue, or permit representatives , agents, or members to use or issue any scurrilous statements or to make any false accusations con- cerning the Company, its officers or employees in any official papers, handbills, news- papers or other literature PRYNE & COMPANY, INC. 471 reasonable and illegal demands Respondent replied that it did not insist on any of the men- tioned clauses as a condition to signing an agreement, but made offer to withdraw any of the proposed sections. UE proposed settling the dispute on a basis of placing in effect all agreed upon clauses, a wage increase of 9 cents per hour, checkoff and illness clauses as they appear in the old contract, and a wage reopening clause on 60 days' notice, plus the remainder of the 1950 contract UE then stated the clauses which had been agreed upon up to that point 36 According to Kelly's notes which he made at the meeting, that with respect to article 27, Respondent 7 proposed that if section 1 thereof was found to be an illegal request then, in that event, that section would be withdrawn, that Respondent would agree to withdraw from section 4, except the first sentence, that section 5 was to be retained but a section similar thereto was to be included to protect UE against any scurrilous attacks, etc , that section 6 remain as proposed; and that section 7 remain as proposed except that before " enforce" the word "reasonable" may be inserted. Kelly's notes further reveal that Respondent also agreed "to place in effect, once an entire agreement is executed" the clauses heretofore agreed upon, that Respondent rejected all demands for a wage increase maintaining that its rates were "equal to or as high, if not higher, than the same skills in our industry and area", that Re- spondent rejected the checkoff demand, that Respondent agreed to a 1-year contract if it con- tained a "no-wage re-opening" clause, that Respondent' s proposed discharge clause be in- corporated into the agreement, and that section 5 and 6 of article 27 must be included in the agreement UE's representatives 38 caucused , and upon their return proposed that the parties initial and put into effect immediately all clauses agreed upon and set aside more time to negotiate with respect to the balance Respondent replied that the proposals and concessions were made subject to an entire agreement being reached UE offered to meet with Respondent the following morning or afternoon Rea replied that he would consider when it could meet again He and Kelly then left the meeting. 39 Section VI The Union recognizes that the Company has the right to present grievances on matters relating to the Union's administration of this contract, on the conduct of the Union's members when acting in the name of the Union in relationships with the Company and its accredited representatives, on the public relations involved in the vilification of the Company and/or its officers in printed material and/or oral statements by union members, etc Section VII The right of the Company to establish and determine and to maintain and enforce standards of production is fully recognized. Continued failure of an employee to produce on the basis of established standards will be considered cause for discipline, including discharge, unless the failure is due to causes beyond his control The Company shall not be required to retain in its employ any employee who refuses to meet estab- lished standards or who engages in any attempt or participates in any plan to control or limit the amount or speed of production 36They were Article I, which sets forth the categories of the persons covered by the agreement Section 3 of article III, being UE's pledge not to intimidate or coerce Respondent's employees or to solicit members on company time Article XI, dealing with pay to employees injured on job, etc Article XIV, dealing with seniority Sections 1 and 5 of article XVI, dealing with discharges for cause Section 2 of article XVII, rates of pay Section 6 of article XX, dealing with leaves of absence Article XXII, dealing with military service. Sections 2 and 6 of article XXIII, dealing with grievances, arbitration, and no- strike or lockout Sections 2 and 3 of article XXVII All provisions of agreement to be subject to the laws of Federal and State Governments and Respondent may establish, without prior consulta- tion with UE, all shop rules xr Kelly and Rea were the only Respondent representatives present at the meeting 38Being Brant and Field Representative Louis Torre. 39 The meeting started at about 11 a m and concluded at approximately 12:15 p m ?91555 0 - 54 - 31 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With the abandonment of the strike on October 2, many, if not all, of the strikers applied for reinstatement They were interviewed by Personnel Director Eckhardt who stated that the sudden conclusion of the strike caught him by surprise and hence he was not able to then advise the returning employees whether their jobs had been filled by replacements or not Eckhardt, however, informed those seeking reinstatement that he would advise them in the near future about the situation Commencing the following day or the day after, Respondent started recalling the strikers for whom it had jobs available Some of the strikers were placed on jobs different from those they had previous to the strike and others were placed on different shifts Some strikers accepted their new assignments and others did not At the hearing herein, the parties stipulated that 1240 of the 1341 persons named in the second amended complaint, as amended, were reinstated after the abandonment of the strike and that none of them was given the job which he held immediately prior to the strike. However, the record shows, and the undersigned finds, that after a short period of time, some of the said 12 were returned to the jobs they held immediately prior to the strike The record also shows that others were given comparable jobs on the night shift and earned 10 cents per hour more than they had received before the strike because of the 10 cents per hour differential in pay given to night-shift employees. Under date of November 2, IBEW wrote Respondent that it represented the majority of Respondent's production and maintenance employees, demanded recognition as the sole and exclusive bargaining representative for those employees, and requested an appointment to "discuss the matter."42 Under date of November 9, UE wrote Rea requesting a meeting for the purpose of negotiat- ing the issues still in dispute "so that we may reach a complete agreement." The letter concluded with a statement that UE was ready "to meet with you at any time and for as long as necessary in order to negotiate an agreement." Under date of November 14, Rea acknowledged receipt of UE's letter Rea's letter con- cluded as follows- For a long period of time, and again as late as November 2, 1951, the International Brotherhood of Electrical Workers, A. F of L , have claimed that they represent the great majority of my clients production and maintenance employees, including shipping, receiving, warehousing, and other hourly paid employees. They not only claim they represent said people, but that they have a membership of a great majority in the categories aforesaid mentioned. Because there is a valid question as to which union, if any, represents the majority of the employees, we deem it inadvisable to meet with you as requested On the same day, November 14, Rea wrote IBEW, in part , as follows: My client cannot, on the basis of an alleged claim of representation, accept said claim as being valid and thereupon recognize the claiming union as the bargaining agent for its employees You did not indicate your willingness to proceed with this matter by way of the National Labor Relations Board and neither did you offer any proof of said representation other than the claim, itself, made in your communication. Accordingly, my client declines to recognize your Union as the collective bargaining agent, pursuant to your request 43 By letter, dated November 19, IBEW wrote Rea that it had in its possession signed member- ship cards and offered to prove to Rea that the majority of Pryne's employees are dues- 40 Namely, Joseph Cardoza, Clarence Hughey, Bernardino Flores, George E. Freeman (named in complaint as George Fraeman), Edward R. Wyss (named in complaint as E. Robert Wyss, Jr.), Warren C. Busse (named in complaint as Warren Busse), Bill Everett Bozeman (named in complaint as Bill Bogeman), John O. Campbell, Delmar F. Shanks, Sam Grizanti, Floyd Downs, and Joe Hensley 4i No stipulation was entered into witji respect to Henry C. Braden 42 Respondent posted a copy of this letter upon the plant bulletin board on or about November 6. 43 On or about November 15, Respondent posted a copy of this letter upon its bulletin board PRYNE & COMPANY, INC 473 paying members of IBEW, that if Respondent bargained with any other union, IBEW would strike Respondent's plant, that because of the recent strike it was reluctant to disclose to Respondent the membership cards but offered to submit the cards to a neutral arbitrator to be appointed by the presiding judge of the Superior Court of the State of California provided Respondent agreed that if said arbitrator found that the majority of Respondent's production and maintenance employees were dues-paying members of IBEW, Respondent would negotiate a collective-bargaining contract covering those employees, and that "if such an agreement" was not acceptable to Respondent, IBEW would "undertake Economic Action to enforce" its demands On November 30, IBEW submitted a proposal entitled "Arbitration Submission," as well as other documents, to Respondent Respondent and IBEW executed the submission agreement on December 5, and it was submitted to court shortly thereafter The arbitrator appointed by the court on December 10 submitted his award on December 2G, finding that IBEW repre- sented the majority of Respondent's employees Upon the unopposed motion of IBEW, the award was confirmed by the court on January 25, 1952 On February 4, 1952, IBEW demanded a meeting with Respondent for purpose of collective bargaining Two days later Respondent wrote IBEW it would meet with .is representatives "at your earliest convenience for the purpose of complying with the terms of [the court]" order " On the same day, February 6, Respondent posted a notice on the bulletin board stating that it was meeting with IBEW pursuant to court order On February 7, Louis Torre, field representative of the Union, went to the plant and had a conversation with Kelly Torre informed Kelly that he understood that some employees had grievances which he desired to investigate Kelly refused to permit Torre to enter the plant, stated that Respondent did not recognize UE and asked Torre to submit the grievances in writing and present them through Respondent's labor relations consultants, the Biddle Trade Bureau Torre replied that he had to investigate the grievances before he could put them in written form and that in order to do so he had to go into the plant Kelly again refused Torre permission to enter the plant The following day, February 8, Respondent and IBEW representatives conferred Thereat IBEW requested certain data which Respondent supplied within a week or 10 days. Concluding Findings The Board and the courts have been uniformly in accord wih the doctrine that it is the duty of an employer to enter into discussions with respect to collective bargaining "with an open and fair mind, and a sincere purpose to find a basis of agreement touching wages and hours and conditions of employment "44 Respondent's conduct in this case fell far short of this standard The entire record in this case indisputably demonstrates a regrettable attitude of Respondent toward the Act Respondent failed utterly, among other things which will be discussed below, to discharge its statutory duty to bargain collectively with UE, as the representative of the ,majority of its employees in the appropriate unit, in good faith It is clear that Respondent at no time during its prolonged negotiations entertained any intention of entering into an agree- ment with UE The fact that Respondent entered into the negotiations with a mind "hermet- ically sealed against even the thought of entering into an agreement" 45 with UE is evidenced, in part, by the language used in its letter of March 16, wherein Respondent notified UE of its election to terminate the 1950 contract at its termination date,45 for Rea indicated therein, in clear and unmistakable terms, that Respondent had no intention of entering into any further contractual relations with LIE, for he stated: Pryne & Co for a considerable period of time has truly and honestly questioned [the] motives and desires on the part of the professional leadership of the U E Serious 44Globe Cotton Mills v. N L R.B., 103 F 2d 91, 94 (C. A 5). See also N L.R B v Whittier Mills Co., 111 F 2d 474(C A 5); N L R B v Reed & Prince Mfg. Co, 118 F. 2d 874 (C k. 1); N L.R B v. Athens Mfg Co., 161 F 2d 8 (C A 5). 45N L.R B. v Griswold Mfg. Co , 106 F 2d 713, 723 (C A. 3) 46 This letter was sent to UE about 3 1/2 months before the contract was to expire and during negotiations looking toward a readjustment upwards of the wage scale contained in said con- tract. 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD doubt has been raised in the minds of the owners of Pryne & Co as to whether the leadership of the U E is genuinely interested in its Union members, the Company, the community and the country as a whole because there is serious doubt in the minds of [the] owners of Pryne & Co as to the motives and objectives on the part of the leadership of the U. E as afore indicated, and because of various occurrences, incidents, work stoppages, etc , having taken place under the leadership of the U E , the Company believes that it is wise and in fact proper to terminate said existing collective bargaining agreement It is deemed necessary by Pryne & Co that before any further collective bargaining agreement is executed such collective bargaining must necessarily provide adequate safeguards to the Company that uninterrupted production can prevail and that the U E will in no way attempt to interfere with, limit or otherwise obstruct production or interfere with harmonious relationship by and between the Company and its employees The demand that the agreement provide for "adequate safeguards to the Company that uninterrupted production" will prevail before any further collective - bargaining contract be entered into with UE, comes with poor grace when consideration is given to the fact that each agreement Respondent had with UE covering a period of 11 years immediately preceding the aforesaid termination letter , stated, with the exception of the 1947 and 1948 agreements, "there shall be no stoppage or slow down of work nor strike so long as this agreement is in force " 47 coupled with the fact that during the said 11 years of continuous contractual relationship between Respondent and UE there had been no strike among Respondent's employees and that, so far as this record discloses , UE lived up to each and every other provision of the said agreements Furthermore , the printed copies of the 1950 contract which were handed to the employees by Respondent contained this gratuitous statement over the signature of Pryne The relationship between the employees and the management of this company has been most amicable in the past it is our earnest hope that this spirit of fine cooperation will continue in the future, .. . Further evidence that Respondent lacked any intention of entering into discussions with UE with an open and fair mind, and with a sincere purpose to find a basis of agreement, is Rea's remark to Lambert, a member of the UE negotiating committee, on March 21, the day Respondent advised UE and later informed the employees that it was granting a 4-cent general wage increase whether UE agreed to it or not, and 1 days after Rea had sent his termination letter to UE, "I dont't think we will have to worry much about the UE after this [present] contract expires anyway," and Kelly's remark to Liscomb in April, prior to the commencement of the negotiations for a new contract, "You know it isn't too long before the contract [with UE] expires and I am going to get rid of that union by hook or crook " Such remarks, made at a time shortly after Respondent had notified its employees of its election to terminate the existing contract and when LIE was seeking to arrange a time for negotiating a new contract , plainly are the antithesis of an intention to comply with the obli- gations imposed by the Act to enter into discussions with a sincere purpose to find a basis of agreement Further manifesting Respondent's lack of good faith in its dealings with UE were the following harassing proposals , among others , of Respondent: (1) The Company may require a non-Communist affidavit from any individual or individuals claiming to represent the Union in any capacity before recognizing such individual as a representative of the Union The Company may refuse to confer, meet with, or bargain with any such person or persons who decline to furnish such affidavit or affidavits Such affidavit shall affirm that the individual is not a member of the Communist party or affiliated with such party and that lie does not believe in, and is 47 This wording appeared in the contracts from 1940 through 1946 The 1949 and 1950 agree- ments stated, ". , there shall be no general or individual strike, lockout , walkout, shop strike, slowdown or shop stoppage " PRYNE & COMPANY, INC 475 not a member of, or supports any organization that believes in or teaches the overthrow of the United States Government by force or by any illegal or unconstitutional methods 4$ (2) posting of a performance bond, 49 and (3) reserving to Respondent the right to unilaterally establish an incentive pay plan 50 Also illustrative of the inescapable conclusion that Respondent was giving, as the court said in N L R B v Athens Mfg Co , supra, UE "a run around while purporting to meet with the Union for purposes of collective bargaining" are Pryne's statements to Treise, "I will never sign a contract again with the UE," Foreman Miller's statements to Loghry, shortly prior to the commencement of negotiations, that there will not be another contract between Respondent and UE, and Cabana's remark to Freeman 2 days before the strike, "You know that the UE is the only thing that is standing in the way" of arriving at a collective-bargaining contract because "Mr Pryne didn't have anything against the men in the shop, it was the union he disliked " Upon the entire record in the case, the undersigned finds that on May 17, 1951, 51 and at all times thereafter, Respondent refused to bargain collectively with UE as the exclusive statutory representative of its employees in an appropriate unit with respect to grievances, 4$ Such a proposal is manifestly violative of the Act See Standard Generator Service Com- pany of Missouri, Inc , 90 NLRB 790 The proposal was submitted on May 15, and it was not until the last negotiating meeting, held on October 24, that Respondent declared that it would withdraw the proposal However, Respondent conditioned its offer to withdraw it only if the proposal was found to be illegal Furthermore, the undersigned is convinced , and finds, that Respondent' s demand that the individuals claiming to represent UE submit to Respondent af- fidavits attesting to their loyalty to the United States before Respondent would meet and bargain with UE was not made ingoodfaith but was advanced solely for the prupose of harass- ing and annoying the statutory representatives of the employees As the Board found in the Standard Generator case, the certified union had complied with all the congressional require- ments regarding the execution and filing of the noncommunistic affidavits and therefore an employer is estoppel from demanding any further evidence of like nature before it would recognize and deal with the union. Moreover , on numerous occasions the Board and the courts have held that an employer violates Section 8 (a) (5) of the Act by refusing to bargain with the duly selected representative of his employees on the ground that one of the persons chosen to represent the employees was not acceptable or was obnoxious to the employer The Oliver Corporation, 74 NLRB 483, Hoppes Manufacturing Company, 74 NLRB 853 Hancock Brick & Tile Company, 44 NLRB 920, N. L. P, B. v New Era Die Co , 118 F 2d 500 (C A 3) 49 This proposal was made after months of negotiation and only withdrawn after much time had been consumed in discussing the proposal sc At the October 24, 1951, meeting, the last the parties held, Respondent stated that it would withdraw this proposal provided a contract was reached satisfactory to it. It is significant to note that at no time was any incentive plan submitted to UE for its approval or disapproval, although UE requested Respondent to do so. Respondent' s insistence, over a period of several months, that the contract provide for the establishment of an incentive pay plan "in such man- ner as the Company may deem fit" further evinces Respondent' s bad-faith dealings with UE for, as the Supreme Court held in May Department Stores v N.L.RB., 326 U. S. 376, "Em- ployer action to bring about changes in wage scales without consultation and negotiation with the certified representative of its employees cannot , we think, logically or realistically, be distinguished from bargaining with individuals or minorities " The circuit courts of appeals have likewise recognized that "the right of collective bargaining is wholly inconsistent with unilateral company action " (Consolidated Aircraft Corp v. N L RB , 141 F 2d 785, 787 (C A 9)): that wages, in particular, constitute "a subject matter no longer to be unilater- ally determined by the employer" (Singer Mfg Co v N.L.RB., 119 F. 2d 131, 137 (C. A 7)), and that employers generally may not effect changes in matters which are properly subjects of collective bargaining without first notifying the employees' statutory representative and af- fording the representative an opportunity to negotiate concerning the proposed changes N L R B v Winona Textile Mills, Inc , 160 F 2d 201 (C A 8), Idaho Potato Growers v N L R B, 144 F 2d 295 (C A 9), N L R B v Louisville Refining Co , 102 F 2d (C A 6); Oughton v N L R B , 118 F 2d 486 (C A 3), Aluminum Ore Co v N L R.B., 131 F. 2d 485 (C. A. 7) si The date of the first meeting between the parties looking toward a new collect ive- ba rgaid- ing contract 476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rates of pay , wages, hours of employment , and other conditions of employment , and by such refusal, which is violative of Section8 (a)(5) of the Act , Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act The undesigned further finds that by entering into the "Submission Agreement" with IBEW in December 1951, and later recognizing IBEW as the exclusive collective -bargaining representative of the employees here involved , Respondent illegally supported and assisted IBEW in violation of Section 8 (a) (2) and (1) of the Act , for at the time of the execution of the aforesaid agreement and its subsequent recognition of IBEW, UE was the certified bargaining representative of the very employees IBEW claimed to represent and UE ' s certification had not been rescinded by the Board nor had another organization lawfully replaced it as such representative In a case similar to the one here presented , the court stated in Valley Mould & Iron Corporation v N.L.R.B., 116 F 2d 760, 764 (C A 7) In pursuance of an election, the Board had certified Amalgamated as the duly designated exclusive bargaining agent for the employees As we read the statute, in the Board is lodged jurisdiction to determine in the proper manner the unit appropriate for the purpose of collective bargaining Congress conferred exclusive jurisdiction upon the Board to determine the appropriate and selective bargaining unit for employees and gave to it alone proper machinery by way of election for making such determination Employees have the right to designate their bargaining agent The Board alone may certify the selection and we take it that so long as that certification remains in full force and effect, the organization designated must be recognized The employer must accord to the certified agent recognition as the proper bargaining agent until the certification is rescinded or succeeded by another Any other holding would upset orderly procedure and destroy the efficiency of determination by the body to act and maintain the proceedings in a state of suspension and indecision. 52 Respondent was not free to refuse to recognize UE as the statutory representative of the employees nor to recognize IBEW as such representative because negotiations between Respondent and UE had broken down or because Respondent believed IBEW's claim of majority respresentation was bona fide, or, under the facts in this case, for any other reason, for, as the Board stated in the United States Gypsum case, 90 NLRB, 964, 965, "It is well settled that a union's representative status established by Board certification is conclusively presumed for a reasonable period of time, customarily 1 year after certification (Belden Brick Company, 82 NLRB 465, Shawnee Milling Company, 82 NLRB 1266), and indefinitely thereafter until such status is shown to have ceased (N L R B v Whittier Mills Company, et al , 111 F 2d 474, 478) The Act provides the methods whereby employees who wish to change or eliminate their bargaining representative may do so through processes by means of a rival-union or decertification petition " Furthermore, since, as found above, Respondent's refusal to bargain with UE occurred as early as May 17, 1951, well within the certification year and when UE's statutory status was unquestioned, Respondent's conduct in repudiating UE and subsequently recognizing IBEW as the representative of the employees was thus clearly violative of the Act 53 In the case of Joe Hearin Lumber, 66 NLRB 1276, the Board repeated the doctrine that- ... The fruition of collective bargaining in an agreement often requires negotiations lasting several months It is therefore essential to the effectuation of the Act that representative status, once established, be vested with a substantial degree of stability" (citing cases) We have accordingly held that when that status has been established in an election by secret ballot conducted under the auspices of the Board in accordance with express statutory provisions, a method of determination which leaves no room for doubt as to the employees' true desires, repudiation of their selection can be established only through the medium of an equally probative technique (citing cases) We do not feel, however, that a card check reflects employees' true desires with the same degree of certainty as such an election 52 Accord, N. L. R. B. v Remington Rand, 94 F. 2d 862 (C. A. 2), and N. L. R. B. v Whittier Mills Company, 111 F. 2d 474 (C. A. 5) 53See Medo Photo Supply v N.L.R.B., 321 U. S. 678, N.L.R.B. v Jones & Laughlin Steel Corp , 301 U. S. 1, May Department Stores v N. L. R. B., supra , J. I Case Co v N. L. R. B., 321 U. S. 332. N.L.R.B. v Grower- Shipper Vegetable Ass'n , 122 F. 2d 368 (C. A. 9) PRYNE & COMPANY, INC 477 Besides entering into the submission agreement, Respondent gave IBEW further substantial assistance and support in violation ofSection8 (a) (2) and (1) of the Act For example, Pryne's oft-announced statements that with an AFL label Respondent's sales would materially increase , Pryne's suggestion that Treise talk to the employees in order to get them to swing over to IBEW and in assuring Treise that if Respondent and IBEW signed a contract Treise's wages would be materially increased, Kelly's remark to Liscomb that Respondent in the future would hire sufficient IBEW adherents to enable IBEW to become the employees' collective- bargaining representative, permitting the solicitation of membership withdrawals from UE on company time and property, and Respondent's refusal to bargain collectively with UE The undersigned further finds that by Pryne's remarks to Treise, as fully set forth above, by Pryne's tacit approval and aid in the solicitation of membership withdrawals from UE, by Miller's statements to Loghry, epitomized above, by Kelly's anti-UE and pro-IBEW state- ments which Liscomb attributed to him, by Cabana's anti-UE and pro-IBEW statements to Royalty and Freeman, as summarized above, and by Rea's remark to Lambert on March 21, 1951, Respondent violated Section 8 (a) (1) of the Act The record abundantly supports a finding that the main cause of the strike was Respondent's refusal to bargain collectively with UE in good faith Even though economic considerations may also have been present, an unfair labor practice strike does not thereby lose its character and scope 54 It is now settled law that upon termination of an unfair labor strike, as here, the strikers are entitled to reinstatement to their former jobs even if such reinstatement necessitates the discharge of new employees hired during the strike 55 When, therefore, the 12 persons" named in the complaint unconditionally offered to return to work, Respondent, by refusing to immediately assign the said 12 persons to the jobs they held prior to the strike, dis- criminated against them, and each of them, in violation of Section 8 (a) (3) and (1) of the Act IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent, set forth in section III, above, occurring in connection with the operations of Respondent, described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and such of them as have been found to constitute unfair labor practices, tend to lead, and have led, to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices violative of Section 8 (a) (1), (2). (3), and (5) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act Having found that Respondent on May 17, 1951, and at all times thereafter, has refused to bargain collectively with UE as the representative of the majority of the employees in an appropriate unit, the undersigned will recommend that the Respondent, upon request, bargain collectively with UE as the exclusive statutory representative of all the employees in the unit heretofore found appropriate, and if an agreement is reached, embody such understanding in a signed agreement. Having found that Respondent discriminated against 12 named strikers, whose names appear upon Appendix A annexed hereto, with respect to their hire and tenure of employment and the terms and conditions of their employment because they had gone on strike in protest against Respondent's unfair labor practices and had engaged in other protected concerted activities, the undersigned will recommend that Respondent offer to the said 12 individuals immediate and full reinstatement to their former or substantially equivalent positions, excepting those already so reinstated,57 without prejudice to their seniority or other rights 54 N. L. R. B. v Stackpole Carbon, 105 F. 2d 167 (C. A. 3), N. L. R. B. v Remington Rand, Inc , supra N.L.R.B. v Barrett Co , 135 F. 2d 959 (C. A. 7) 55N.L.R.B. v Mackay Radio & Telegraph Co , 304 U. S. 333, UnitedBiscuity. N.L.RB., 128 F. 2d 771 (C. A. 7), Black Diamond S. S. Corp v N.L.R.B., 94 F. 2d 875 (C. A. 2) "'Since there is no evidence with respect to Braden, no finding is being made with respect to him Accordingly, the undersigned will recommend that the allegations of the second amended complaint as to him be dismissed The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65 NLRB 827. 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and privileges The reinstatement shall be effected in the following manner All employees hired after October 1, 1951, the date when UE called off the strike and the strikers un- conditionally requested reinstatement , shall, if necessary to provide employment for those to be offered and who shall accept their former or substantially equivalent positions, be dismissed. Likewise, if the former positions of any of the said strikers have been taken by persons who were in Respondent' s employ prior to the strike, then those persons shall be relieved thereof in order that the said strikers may be assigned to their former positions If, however, by reason of a reduction in force there are not immediately available sufficient positions for the 12 named strikers all available positions shall be distributed among such persons in accordance with the Respondent's usual method of reducing its force, without discrimination against any employee because of his union affiliation or activities , following such system of seniority as has heretofore been applied by the Respondent in the conduct of its business Those employees remaining after such distribution for whom no employment is immediately available , shall be placed on a preferential list, with priority determined among them in accordance with the system of seniority or other nondiscriminatory procedure as has heretofore been applied by the Respondent in the conduct of its business , and thereafter, in accordance with such list, shall be offered reinstatement by the Respondent to their former or substantially equivalent positions as such employment becomes available and before other persons are hired for, or transferred to, such work The undersigned will also recommend that Respondent make whole the aforesaid 12 strikers for any loss of pay they may have suffered by reason of the Respondent's discrimination against them by the payment to each of a sum of money equal to the amount which he normally would have earned as wages from October 1, 1951, 58 to the date of the Respondent's offer of their former or substantially equivalent positions, or to the date of placement on the preferential list hereinabove described , less his net earnings during such period Having found that Respondent illegally assisted and supported IBEW by, among other things, executing the "Submission Agreement," hereinabove referred to, the undersigned will recommend that Respondent be ordered to cease and desist from giving effect to said agreement and such other understandings , supplements , extensions, or other agreements as may relate thereto, or to otherwise unlawfully assist or support IBEW, or recognize IBEW as the representative of the employees in the bargaining unit Having found that there is insufficient evidence in the record to sustain the allegations of the second amended complaint that Henry C Braden was discriminated against, the under- signed will recommend that the second amended complaint as to Braden, be dismissed The unfair labor practices found to have been engaged in by Respondent are of such a character and scope that in order to insure the employees here involved their full rights guaranteed by the Act, it will be recommended that Respondent cease and desist from in any manner interfering with, restraining, and coercing its employees in their right to self- organization 59 Upon the basis of the foregoing findings of fact, and upon the record as a whole , the under- signed makes the following- CONCLUSIONS OF LAW 1 United Electrical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated, and International Brotherhood of Electrical Workers, Local Union No 1710, affiliated with American Federation of Labor, are labor organizations within the meaning of Section 2 (5) of the Act 2 All Respondent' s Pomona , California , plant production and maintenance employees, including shipping and receiving employees , excluding clerical employees , watchmen , guards, supervisors , and professional employees as defined by the Act, constitute , and during all times material herein constituted , a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act 3 United Electrical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated, was on August 16, 1950, and at all times since has been, the exclusive representative of all the employees in the above-described appropriateunit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act 4 By refusing on May 17, 1951, and thereafter, to bargain collectively with United Elec- trical, Radio & Machine Workers of America, (UE) Local 1421, unaffiliated, as the exclusive 58Crossett Lumber Co., 8 NLRB 440. 59See May Department Stores v N.L.R.B , 326 U. S 376. PRYNE & COMPANY, INC 479 representative of all the employees in the appropriate unit, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act 5 By discriminating in regard to hire and tenure of employment of the 12 employees whose names appear on Appendix A. hereto annexed, because they, and each of them, participated in a strike at Respondent's Pomona, California, plant and engaged in other protected concerted activities, thereby discouraging membership in UE, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act 6 By giving illegal assistance and support to International Brotherhood of Electrical Workers, Local Union No 1710, affiliated with American Federaton of Labor, thereby en- couraging membership in that organization and discouraging membership in UE. Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (2) of the Act 7 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act 8. The aforesaid unfair labor practices are unfair labor practices within the meaning of Section 2 (6) and (7) of the Act 9 Respondent did not discriminate against Henry C Braden as alleged in the second amended complaint E Recommendations omitted from publication ] APPENDIX A Joseph Cardoza Bill Bozeman Clarence Hughey John O. Campbell Bernardino Flores Floyd Downs George Freeman Delmar F. Shanks Edward R. Wyss (also known Joe Hensley as E Robert Wyss, Jr.) Warren Busse Sam Grizanti APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL bargain collectively, upon request, with United Electrical , Radio & Machine Workers of America, (UE) LOCAL 1421, as the exclusive bargaining representative of all employees in the bargaining unit described herein and if an understanding is reached, embody such understanding in a signed agreement The bargaining unit is. All our Pomona, California, plant production and maintenance employees, including shipping and receiving employees, excluding clerical employees, watchmen, guards, supervisors, and professional employees as defined by the Act WE WILL offer to the employees named below immediate and full reinstatement to the positions they held immediately prior to the strike which commenced on July 2, 1951, without prejudice to any seniority or other rights and privileges previously enjoyed, and make them whole for any loss of pay suffered as a result of the discrimination against them Joseph Cardoza Bill Bozeman Clarence Hughey John 0 Campbell Bernardino Flores Floyd Downs George Freeman Delmer F. Shanks Edward R Wyss (also known Joe Hensley as E. Robert Wyss, Jr ) Warren Bosse Sam Grizanti 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WE WILL withdraw from, and will give no effect to , the"Submission Agreement" which we entered into with International Brotherhood of Electrical Workers, Local Union No. 1710, affiliated with American Federation of Labor, on or about December 5, 1951, and will withhold from IBEW any other illegal support, assistance , and recognition as representative of the employees in the above-described bargaining unit. WE WILL NOT encourage membership in IBEW nor discourage membership in UE. 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 labor organizations , to join or assist United Electrical, Radio & Machine Workers of America, (UE) Local 1421, or any other labor organization , to bargain collectively through representatives of their own choosing and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. All our employees are free to become or remain members of United Electrical, Radio & Machine Workers of America , (UE) Local 1421, or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employ- ment against any employee because of membership in or activity on behalf of any labor organization. PRYNE & COMPANY, INC., Employer. Date ................. By ........................................................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must be altered, defaced, or covered by any other material. PACIFIC INTERMOUNTAIN EXPRESS CO. and OFFICE EM- PLOYEES INTERNATIONAL UNION, LOCAL NO. 29, AFL,' Petitioner PACIFIC INTERMOUNTAIN EXPRESS CO. and PACIFIC IN- TERMOUNTAIN EXPRESS OFFICE EMPLOYEES ASSOCIA- TION,2 Petitioner. Cases Nos. 20-RC-2061 and 20-RC-2064. June 9, 1953 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Shirley N. Bingham, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.3 Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 'Hereinafter referred to as AFL. 2 Hereinafter referred to as the Association. The AFL moved to amend its petition to limit the unit it sought to represent to the office clerical employees of the Emoryville terminal. The hearing officer referred the motion to the Board for ruling. The motion is granted. 105 NLRB No. 54.