American Rubber Products Corp.

AMERICAN RUBBER PRODUCTS CORP. 73 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By discriminating in regard to the tenure of employment of James F. Cook, Hershal Van Owen, and Jay Bowen, thereby discouraging membership in Lodge 924, International Association of Machinists . AFL, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: WE WILL offer James F. Cook, Hershal Van Owen, and Jay Bowen immediate and full reinstatement to their former or equivalent positions without prejudice to any other rights or privileges previously enjoyed and to make them whole for any loss of pay suffered as a result of the discrimination. WE WILL NOT interrogate our employees as to their union interests , attitude, mem- bership, or activities. WE WILL NOT threaten our employees with discharge or to close our shop if they join Lodge 924, International Association of Machinists , AFL, or any other labor organ- ization. WE WILL NOT in any other manner interfere with or restrain our employees in the exercise of their rights to self-organization, to form labor organizations , to join or assist Lodge 924, International Association of Machinists , AFL, 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, and to refrain from any or all such activities except to the extent that such right may be affected by agreement requiring membership in a labor organization as a condition of employment , as authorized by Section 8 (a) (3) of the Act. All our employees are free to become or refrain from becoming members of the above- named union or any other labor organization except that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the amended Act . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organization. LATE CHEVROLET COMPANY, INC. Employer. Dated ................ By.............................................................................................. (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material AMERICAN RUBBER PRODUCTS CORP. and UNITED ELEC- TRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL 914. Case No. 13-CA-1145. July 10, 1953 DECISION AND ORDER On December 10, 1952, Trial Examiner Frederic B. Parkes, 2nd, issued his Intermediate Report in the above-entitled 106 NLRB No 10. 74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD proceeding , finding that the Respondent had engaged in and was engaging in certain unfair labor practices , and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint , and recommended that those allegations of the complaint be dismissed . Thereafter, the Respondent and the General Counsel filed exceptions to the Intermediate Report and supporting briefs. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed . The rulings are hereby affirmed. , The Board has considered the Intermediate Report , the exceptions and briefs , and the entire record in the case ,' and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner to the extent that they are consistent with this Decision and Order. 1. The Trial Examiner found that Respondent had not violated Section 8 ( a) (5) of the Act by refusing to bargain with the Union. The General Counsel excepts to this finding and we find merit in his exceptions. As more fully set forth in the Intermediate Report, the Respondent , following a recognition strike by all its em- ployees , recognized the Union on January 22, 1952, and executed a recognition agreement including , among other things , a union-shop clause . Negotiations for a complete bargaining contract began in February and on February 6, 1952 , the parties executed an agreement providing that any wage increases should be made retroactive to January 28, 1952. From February until April 14, the parties met about 2 or 3 times a week and reached an agreement on various issues, notably a wage increase for women employees. How- ever, from the beginning of negotiations , Respondent re- fused to commit itself to a definite wage increase for male employees . It stated that, according to its auditor , the increases given 'to the men during the year were the limit allowable under WSB regulations without WSB approval , and that further increases would require WSB approval.' As alternatives, Respondent proposed a cost-of-living escalator increase 1 The Respondent excepts to the Trial Examiner's determinations with respect to the compliance status of the Union, contending in this connection, as it did at the hearing, that Sheehan "dominated and controlled" the Union and was a de facto executive officer who had not complied with the filing requirements of the Act These contentions are without merit. The fact of compliance by a labor organization which is required to comply is a matter for administrative determination and is not litigable by the parties Following an independent administrative investigation, the Board is satisfied that Sheehan is not an officer of the Union, either in a de facto capacity or otherwise, and that the Union is, and has been, in full compliance at all times material herein. Cf Derenson's, 104 NLRB 270. 2 The Respondent's request for oral argument is hereby denied as the record, the excep- tions, and briefs, in our opinion, adequately present the issues and positions of the parties 3 The Respondent stated that the increases agreed on for female employees did not require WSB approval because the leeway permissible under WSB rules had not yet been utilized. The Respondent did not at any time apply for WSB approval of a wage increase for the men AMERICAN RUBBER PRODUCTS CORP. 75 or an incentive pay plan, which could be granted without WSB approval , but the Union rejected these proposals. On April 14, 1952 , negotiations were broken off and Respondent's employees went on strike because of Respondent ' s refusal to grant a wage increase. About 2 weeks after the strike started , Respondent was approached by the Federal conciliator to resume negotiations and informed the conciliator that it doubted the Union's majority status. Similarly , on about May 14, when a union representa- tive suggested to Torosian , 4 Respondent's vice president and treasurer , that negotiations be resumed , Torosian refused, questioning the Union' s majority status and saying there was nothing to discuss with the Union . On June 4, officers of the Union' s local, all employees of Respondent , went to see Respondent to determine whether some arrangements could be made to get the employees back to work and were told by Torosian that he would deal with them as individuals only and not as union representatives , and that he did not believe in the principles of the UE and would not let it handle anything. Meanwhile , during April , May, and June, Foremen Stayback and Miller solicited employees to return to work , urging them to withdraw from the UE and to sign up with another union; telling them, among other things , that they would never get back to work if they stuck with the Union ; and promising them wage increases and bonuses if they returned to work. The Trial Examiner found that Respondent had bargained in good faith until the strike on April 14, 1952; that the strike was conducted for an immediate wage increase , which "so far as this record shows" would have violated WSB regulations; and that, during the pendency of such a strike , Respondent was justified in refusing to bargain. Although we adopt the Trial Examiner ' s credibility findings , we do not agree with the Trial Examiner ' s basic legal premise that the record shows that the granting of the wage increase would have violated WSB regulations. The only indication in the record that the wage increase sought by the Union would have been unlawful is Torosian's testimony that he had been informed by Respondent ' s auditor orally and by letter that it could not grant any further wage increases without prior WSB approval . This testimony is obviously hearsay and has no probative value to establish the fact that the granting of wage increases would actually have violated WSB rules . Respondent' s auditor did not testify, nor was his letter introduced in evidence . Moreover, the record contains no evidence whatsoever on which the Board could make an independent finding as to the legality under WSB rules of the increases demanded by the Union. Under these circumstances , there is no probative evidence to substantiate the defense that the Union' s concerted activity was unprotected. 5 4 Torosian conducted all negotiations with the Union oil behalf of Respondent. i Wigmore on Evidence §§ 1360-61 (3rd ed. 1940); N L. R B. v. Amalgamated Meat Cutters and Butcher Workmen of North America , Local No. 127 ( AFL), 206 F. 2d 671 (C A. 9), denying enforcement to 96 NLRB 570. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Furthermore , the record does not even establish that Re- spondent refused to bargain with the Union because it believed that the strike was called for an unlawful objective . Respondent only mentioned its belief as to the illegality of the proposed wage increase during earlier bargaining conferences. It did not raise this issue at the last bargaining conference or any other time before the hearing in this case . Moreover, Respondent at no time indicated to the strikers that it con- sidered the strike unlawful or that it would negotiate if the strikers receded from their unlawful demands . Instead, as previously mentioned , Respondent advised the Federal con- ciliator about 2 weeks after the strike began that it doubted the Union' s majority and similarly advised a union repre- sentative on May 14. On June 4, 1952, it told representatives of the Local merely that it did not believe in the UE ' s prin- ciples and would not let it handle anything . At approximately the same time Respondent' s supervisors were promising increased wages and bonuses to the strikers if they would abandon the Union and return to work . Indeed. Torosian himself testified that Respondent by the first or second week after the strike decided not to bargain further because the Union' s economic demands "would be a slow death " for the Respondent. We find therefore that there is no probative evidence to show that the strike , presumptively a protected concerted activity , was unlawful nor, in fact, that the Respondent refused to bargain because it believed the strike to be un- lawful. However , the Respondent contends in substance that even if the strike was lawful it was relieved of its obligation to bargain with the Union on the grounds that: ( 1) There was no request to bargain in an appropriate unit because the Union requested the inclusion of watchmen in the unit ; ( 2) the Union itself did not bargain in good faith ; and (3 ) the Respondent in good faith doubted the Union' s majority status . We find no merit in any of these contentions. As to the Union's alleged failure to request bargaining in an appropriate unit , the record shows that the Union de- manded and finally obtained Respondent ' s consent to include Respondent' s two watchmen in the unit. We agree with the Trial Examiner that the watchmen are guards and may not be included in the unit. However , we do not find that the Union' s request for such inclusion excuses the Respondent's failure to bargain where , as here , Respondent did not inform the Union that it based its refusal to bargain on the inclusion of the watchmen in the unit ; where the inclusion or exclusion of the watchmen did not alter the Union's status as the majority representative; and where the exclusion of these employees did not alter the essential nature of the production and main- tenance unit requested by the Union and herein found appro- priate.6 6Potomac Electric Power Company, 73 NLRB 1291; John Deere Killefer Company, 86 NLRB 1073. AMERICAN RUBBER PRODUCTS CORP. 77 With respect to the Union' s alleged failure to bargain in good faith , the record contains no persuasive evidence to support such allegation. Finally, as to Respondent ' s alleged good-faith doubt con- cerning the Union' s majority status , the record shows that on April 14 , 1952, the date of the beginning of the strike, the Respondent had approximately 157 employees , of whom 132 had signed voluntary checkoff authorizations and all of whom participated in the strike , which was current at all times Respondent expressed its doubts as to the Union's majority. None of Respondent' s striking employees had been replaced. Despite this rather overwhelming demonstration of the Union' s strength, Respondent claims that it in good faith doubted the Union' s majority because Torosian had allegedly been informed by some of Respondent ' s employees that they had been threatened with harm if they did not join and adhere to the Union . However, the number of employees allegedly threatened would not affect the Union's majority status.' More- over, none of the employees allegedly threatened testified at the hearing and at least one of them, Shirley Smith, acted as a captain on the picket line .8 While Respondent further relies on the filing of a representation petition ( Case No. 13-RC - 2843 ) by another union, this petition , which was dis- missed because of pendency of the present case , was filed on July 7, 1952 , and therefore clearly cannot justify Re- spondent' s earlier refusal to bargain with the Union .' Under these circumstances , and in view of Torosian ' s admitted determination not to bargain with the Union because he disliked their wage demands and the efforts of Respondent's supervisors to undermine the Union , we find no merit in Respondent' s defense that it refused to bargain because it in good faith doubted the Union' s majority. We find that on April 14, 1952 , and at all times thereafter, the Union represented a majority of Respondent ' s employees in the appropriate unit,t° and that the Respondent refused to bargain with the Union on or about April 28, 1952, and at all times thereafter , in violation of Section 8 (a) (5) and ( 1) of the Act. 2. The Trial Examiner found and we agree that the Re- spondent violated Section 8 (a) (1) of the Act by the conduct 7 Torosian only named three employees who allegedly reported to him that they had been threatened . He claimed that more than these had reported threats but did not think it was necessary to name them. See James Thompson Rr Co., Inc ., 100 NLRB 456 8 This finding is based on the credited uncontradicted testimony of John Baker. 9Even if the Union no longer represented the majority of Respondent 's employees at the time of the filing of the rival union's petition, such factor would not avail the Respondent as a defense here, where a loss of majority would be attributable to Respondent 's unfair labor practices See Tower Hosiery Company v. N. L. R . B., 180 F. 2d 701 (C.A. 4), cert. den. 340 U.S 811 ( 1950). iU We agree with the Trial Examiner 's finding that a unit consisting of all the production and maintenance employees at the Respondent's La Porte, Indiana, plant, excluding watch- men, managerial employees, office clerical employees , and supervisors as defined by the Act, is a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act. 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of its supervisors , Foremen Miller and Stayback , who in- dividually solicited Respondent' s employees to abandon the strike and attempted to induce them to renounce their member- ship in the Union, withdraw their designation of the Union as their statutory representative , and designate another organi- zation as such representative , accomplished by threats of reprisal and promises of benefit. Because the Trial Examiner found that Respondent was under no obligation to bargain with the Union, he did not find that the conduct of Stayback and Miller violated Section 8 (a) (5) as well as Section 8 (a) (1) of the Act. The General Counsel excepts to this failure to find. As we have reversed the Trial Examiner and found that at all times material herein Respondent was under an obligation to bargain with the Union, we find that, under the circumstances of this case , the conduct of Respondent' s Supervisors Stayback and Miller was cal- culated to undermine the Union ' s right to act as the collective- bargaining representative of Respondent's employees and therefore was also violative of Section 8 (a) (5) of the Act." The Remedy Having found that the Respondent has engaged in the unfair labor practices set forth above, we shall order that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Since we have found, contrary to the Trial Examiner, that the Respondent has refused to bargain collectively with the Union as the exclusive representative of its employees in an appropriate unit, we shall order that the Respondent, upon request, bargain collectively with the Union. We are also of the opinion that the commission of other unfair practices by the Respondent is to be anticipated from its conduct in the past. Consequently, we shall order the Respondent to cease and desist not only from the unfair labor practices herein found, but also from in any other manner infringing upon the rights guaranteed to its employees in Section 7 of the Act. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that Respondent , American Rubber Products Corp. , La Porte , Indiana , its officers , agents, successors , and assigns shall: 1. Cease and desist from: (a) Attempting by promise of benefit or threat of reprisal to induce its employees to abandon their strike and repudiate United Electrical, Radio & Machine Workers of America, "See Superior Engraving Company, 83 NLRB 215, 217, enforced 183 F 2d 783 (C A 7); West Coast Luggage Co., 105 NLRB 414. AMERICAN RUBBER PRODUCTS CORP. 79 Local 914, or any other labor organization, as their statutory representative and to designate any organization as such representative. (b) Engaging in any activity calculated to undermine the right of the above-named Union to act as the collective- bargaining agent of its employees. (c) Refusing to bargain collectively with the above-named Union as the exclusive bargaining representative of its em- ployees in the unit found appropriate. (d) In any other manner interfering with , restraining, or coercing its employees in the exercise of their rights to self-organization , to form labor organizations , to join or assist the above -named Union 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, as guaranteed in Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization in conformity with Section 8 (a) (3) of 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, Local 914, as the exclusive bargaining agent in the appropriate unit, with respect to rates of pay, wages, hours of employment, and any other conditions of employment and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in La Porte, Indiana, copies of the notice attached hereto, marked "Appendix." 12 Copies of such notice, to be furnished by the Regional Director for the Thirteenth Region (Chicago, Illinois), shall, after being duly signed by the Respondent's representative, be posted by the Respondent immediately upon receipt thereof, and maintained by it for a period of 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. (c) Notify the Regional Director for the Thirteenth Region, in writing, within ten (10) days of this Decision and Order, what steps the Respondent has taken to comply therewith. Member Styles took no part in the consideration of the above Decision and Order. 12 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted 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." 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our em- ployees that: WE WILL NOT by promise or benefit or threat or reprisal attempt to induce our employees to abandon their strike and repudiate United Electrical, Radio & Machine Workers of America, Local 914, or any other labor organization, as their statutory representative and designate any organization as such a representative. WE WILL NOT engage in any activity calculated to undermine the right of the above-named union to act as the collective -bargaining agent of our employees. WE WILL NOT refuse to bargain collectively with the above-named union as the exclusive representative of all employees in the appropriate unit described below. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their rights to self-organization, to form labor organi- zations, to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing and engage in concerted activities for the purposes of collective bar- gaining or other aid and protection as guaranteed by Section 7 of the Act, except to the extent that such rights may be affected by an agreement requiring membership in a labor organization, as authorized by Section 8 (a) (3) of the Act. WE WILL, upon request, bargain collectively with United Electrical, Radio & Machine Workers of America, Local 914, as the exclusive representative of all employees in the appropriate bargaining unit described below with respect to rates of pay, wages , hours of employment, and other conditions of employment, and if an under- standing is reached, embody such understanding in a signed agreement. The appropriate bargaining unit is: All production and maintenance employees at our La Porte, Indiana, plant, excluding watchmen, managerial employees, office clerical employees, and supervisors as defined by the Act. All our employees are free to become or remain, or to refrain from becoming or remaining, members of United Electrical, Radio & Machine Workers of America, Local 914, or any other labor organization, except to the extent that such AMERICAN RUBBER PRODUCTS CORP. 81 right may be affected by an agreement made in conformity with Section 8 (a) (3) of the Act. AMERICAN RUBBER PRODUCTS CORP., Employer. Dated ................ By.................................................... (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. Intermediate Report STATEMENT OF THE CASE Upon charges duly filed by United Electrical, Radio & Machine Workers of America, Local 914, herein called the Union, the General Counsel of the National Labor Relations Board, 1 by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued a complaint dated August 6, 1952, against American Rubber Products Corp., herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (a) (1) and (5) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. Copies of the charges, complaint, and notice of hearing were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that: (1) About January 21, 1952, a majority of the Respondent's employees in a unit appropriate for the purposes of collective bargaining designated and selected the Union as their statutory representative; (2) about January 21, 1952, the Respondent granted the Union recognition as the exclusive collective-bargaining representative of its employees; (3) about April 12, 1952, the employees in the unit ceased work and concertedly launched a strike; and (4) since about April 12, 1952, the Respondent has refused to bargain collectively with the Union, despite repeated requests by the Union for such bargaining, by (a) refusing to meet with the Union for the purposes of collective bargaining; (b) refusing to recognize the Union as the statutory representative of the employees; (c) unilaterally soliciting employees individually, with promises of benefits and threats of reprisal, to abandon the strike and return to work; (d) attempting to induce employees to abandon their membership in and concerted activities in behalf of the Union; and (e) refusing to bargain collectively with the Union and to negotiate with the Union with respect to terminating the strike, except upon the condition that the employees in the unit abandon their membership in the Union and withdraw their designation of the Union as their statutory representative. The complaint further alleged that by the foregoing conduct, the Respondent engaged in violations of Section 8 (a) (1) and (5) of the Act. Thereafter, the Respondent duly filed an answer, admitting certain allegations of the com- plaint but denying that it had engaged in the alleged unfair labor practices and setting forth certain affirmative defenses. On August 14, 1952, the Respondent filed a motion to dismiss the complaint with the Regional Director, who referred it to the Trial Examiner for ruling. Pursuant to notice, a hearing was held on August 19 and 20, 1952, at La Porte, Indiana, before Frederic B. Parkes, 2nd, the undersigned Trial Examiner duly designated by the Chief Trial Examiner. The General Counsel, the Respondent, and the Union were represented by counsel. Full opportunity to be heard, to examine and cross-examine the witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the outset of the hearing, the undersigned denied the Respondent's motion to dismiss the complaint, which had previously been filed with the Regional Director and referred to the Trial Examiner for ruling. Thereafter, the Respondent renewed the motion to dismiss and moved to take evidence with reference to the matters set forth in the motion. The motion, accompanied by a supporting affidavit, was to the effect that the complaint should be dis- 1The General Counsel and his representative at the hearing are referred to as the General Counsel. The National Labor Relations Board is herein called the Board. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD missed for the reason that "there is no jurisdiction for the issuance of a complaint" inasmuch as William J. Sheehan "dominated and controlled " the Union and was a de facto executive officer of the Union but had not filed an affidavit with the Board in accordance with the requirements of Section 9 (h) of the Act. The Respondent's motions were denied for the reason that the determination of compliance by a labor organization with Section 9 (f), (g), and (h) is an administrative matter and is not a litigable issue. Early in the hearing, the undersigned denied a motion by the General Counsel that the Respondent be required to furnish particulars with reference to certain matters set forth in its answer. At the close of the General Counsel's case-in-chief, the Respondent advanced a motion for the dismissal of the complaint. The motion was denied without prejudice to its subsequent renewal. Upon the conclusion of the hearing, the undersigned granted a motion by the General Counsel to conform the pleadings to the proof as to dates , spelling, and minor variances. Ruling was reserved (1) upon the Respondent 's motion "for a dismissal of the complaint for want of jurisdiction, for the issuance of the complaint, or for any proceedings thereon" because of the Union's alleged noncompliance with the filing requirements of Section 9 (h), as set forth in the Respondent's original motion filed with the Regional Director ; and (2) upon the Respondent's motion that the complaint be dismissed for the reason that the evidence failed to substantiate the complaint 's allegations. The latter motion is disposed of in accord- ance with the findings of fact and conclusions of law reached below. In respect to its motion attacking the legality of the proceedings because of the Union's alleged noncompliance with the filing requirements of Section 9 (h), the Respondent argues that in reliance upon Section 102.13 (3) of the Board 's Rules and Regulations and policy enunciated by the Board in the Sunbeam case,2 the "Respondent , in due time, prior to the hearing, filed with the Regional Director a motion supported by affidavit for administrative dismissal of the complaint on account of lack of jurisdiction.... The Regional Director arbitrarily and capriciously failed to act upon the motion . At the hearing the General Counsel simply announced that the motion had been 'referred to the Trial Examiner for ruling."' In the undersigned 's opinion , the record does not show or support an inference that the Regional Director acted arbitrarily and capriciously with respect to the motion of the Respondent. Two matters are involved as a result of the filing of the motion and the Regional Director's action. First is the issue raised by the motion and calling for an administrative deter- mination of whether William J. Sheehan was required to file an affidavit under Section 9 (h) of the Act and second is the ultimate ruling upon the Respondent 's motion to dismiss. These two matters are separate and distinct and although the Regional Director might have ruled upon both, there is certainly no lack of due process as a result of his having made an ad- ministrative determination that Sheehan was not required to file an affidavit and referring the motion to the Trial Examiner for its ultimate disposition. 3 The Respondent's argument is based upon a presumption which is completely contrary to that which the undersigned believes is inherent in the situation . That is , the Respondent presumes that no administrative determination as to Sheehan 's status as an officer of the Union was made by the Regional Director . It is the undersigned 's opinion--based upon the Board ' s often enunciated policy that a charging union's compliance status with the filing requirements of Section 9 is to be determined administratively, is not a litigable issue, and is not a matter to be alleged in the complaint or proved by the General Counsel --that it must be presumed upon the issuance of a complaint by the General Counsel that the charging union is in compliance with the filing requirements of the Act. Similarly, in the instant proceeding, where the issue as to the necessity for Sheehan 's filing a Section 9 (h) affidavit was raised prior to the hearing by the Respondent, one must presume from the fact that the General Counsel processed the complaint to hearing that the Regional Director had made an administrative determination that Sheehan was not required to file an affidavit and accordingly that the Union 's compliance status was not affected by the issue raised in the Respondent's motion. For the foregoing reasons , the Respondent's motion that the complaint be dismissed for jurisdictional reasons is denied. 4 2 Sunbeam Corporation , 94 NLRB 844. 30f course, had the Respondent's motion been lodged with the Regional Director in the form of a motion to withdraw the complaint , it would appear that the Regional Director would have been impelled to make the ultimate disposition of the motion and could not have referred it to the Trial Examiner. 41n this regard, see Illinois Bell Telephone Company, 88 NLRB 1171; Comfort Spring Corporation, 90 NLRB 173; Metropolitan Life Insurance Company, 90 NLRB 935 and 91 NLRB 473; and Rozelle Shoe Corporation , 100 NLRB 273. AMERICAN RUBBER PRODUCTS CORP. 83 At the conclusion of the hearing, the undersigned advised the parties that they might argue before and file briefs or proposed findings of fact and conclusions of law, or both, with the Trial Examiner. The parties waived oral argument. Thereafter, the Respondent and the General Counsel each filed a brief with the undersigned and a motion for the correction of the transcript of the hearing. Following notification to the parties of the corrections proposed by counsel and by the undersigned and failing to receive any objections to such corrections, the undersigned issued an order correcting the transcript on November 28, 1952. Upon the entire record in the case and from his observation of the witnesses, the under- signed makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT American Rubber Products Corp., an Indiana corporation with its plant and principal office located in La Porte, Indiana, is engaged in the business of manufacturing chemically blown sponge rubber for distribution and sale. In its operations, the Respondent purchased annually materials valued in excess of $ 500,000, of which 90 percent originated, and was shipped to it from places, outside the State of Indiana. The Respondent caused large quantities of its finished products, valued in excess of $1,000,000 annually, to be sold and transported in interstate commerce from its plant in Indiana, into and through States of the United States to places outside the State of Indiana. The complaint alleged, the Respondent's answer admitted, and it is found that the Respondent is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America, Local 914, is a labor organization admitting employees of the Respondent to membership. III. THE UNFAIR LABOR PRACTICES A. Sequence of events 1. Advent of the Union; negotiations until the strike In January 1952, the Unions commenced an organizational campaign among the Re- spondent's employees. On January 15, 1952, all production and maintenance employees of the Respondent launched a strike, which continued until about January 22, 1952. About January 16, 1952, the Union informed the Respondent that the Union represented a majority of the Respondent's employees and requested that the Respondent recognize it as the collective- bargaining representative of the employees. Concurrent with this request, the Union filed with the Board a 9 (c) petition covering the Respondent's employees. On January 21, 1952, representatives of the Union and the Respondent conferred. Again, the Union stated that it represented a majority of the employees and further asserted that a majority had signed membership cards in the Union. The Respondent did not request proof of the Union's claim to represent a majority of the Respondent's employees but accepted the Union's statement in that regard. As a result of the meeting, the Union and the Respondent signed an "Agree- ment for Recognition of the U.E.R.M.W.A.," whereby (1) the Respondent recognized the Union as the statutory representative of its production and maintenance employees; (2) the unit appropriate for the purposes of collective bargaining was defined as "all production and maintenance employees, excluding supervisory, management, and office clerical em- ployees"; and (3) the parties agreed to meet for the purpose of negotiating a contract not later than January 30, 1952. The agreement also contained the following union-shop pro- visions: The parties hereto believe that a stable and responsible Union is necessary to secure harmony and redress of grievances and problems arising in the plant and therefore agree as follows: (a) All employees of the American Rubber Products Corporation who have indicated by signed applications as of January 21, 1952, that they desire the U.E.R.M.W.A. to 5 Local 914 was chartered on January 30, 1952. References in the text to "Union" prior to that date relate to United Electrical, Radio & Nlachine Workers of America. 322615 0 - 54 - 7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD represent them in collective bargaining shall remain in the above named Union for not less than one year or in accordance with any agreement concluded between the above named parties and ratified by the membership of the above named Union. (b) Any production and maintenance employee on the payroll of the Corporation on January 15, 1952, who returns to the plant at the conclusion of the current strike and any such new employees who are subsequently hired may join the Union immediately, however, they shall join the Union not later than thirty (30) days after the signing of this agreement or after hiring into the plant and shall continue to maintain their mem- bership in the above named Union. On the same day, the Respondent and the Union executed a "Return to Work Agreement" which provided that should the employees ratify the recognition agreement, all strikers would be permitted to return to work on or by January 28. It appears that the union member- ship ratified such agreement and that the strikers abandoned the work-stoppage and resumed work on January 22, 1952. Shortly thereafter, the Union withdrew the 9 (c) petition which it had previously filed with the Board. At a conference on January 30, 1952, the Union submitted to the Respondent a proposed collective-bargaining agreement and a few days later the Respondent gave its proposed contract to the Union. Within a short time thereafter , the parties commenced a series of collective-bargaining conferences, meeting 2 or 3 times each week.6 On February 6, 1952, they executed an agreement providing that any wage increases or other economic benefits upon which agreement might be reached in subsequent collective bargaining would be retro- active in effect to January 28, 1952. On February 13, the Respondent and the Union agreed to a voluntary checkoff of union dues, and in March, the Respondent checked off dues, in accordance with the agreement, for both February and March, and remitted them to the Union. By April 14, 1952, the date of the last collective-bargaining session, the Respondent and the Union had agreed tentatively to many terms of their proposed contract. However, at this meeting, negotiations over a wage increase for male employees reached an impasse.7 Pre- viously they had come to agreement in respect to wage increases , ranging between 15 and 25 cents an hour, for female employees . The Union had originally proposed a wage increase of 35 or 40 cents an hour for male employees , but during the negotiations had reduced its request to increases of 15 and 20 cents an hour for the male employees. The Respondent informed the Union during these discussions that according to the Re- spondent's auditor , "the increases we gave the men during the year ... was our limit" under regulations of the Wage Stabilization Board and that any wage increase for male employees would require approval of such board. However, since the permissible "leeway" for wage increases for female employees had not been completely utilized the previous year, certain wage increases could be given them without prior approval of the Wage Stabili- zation Board and the parties negotiated and reached agreement as to these increases. The Respondent proposed a so-called cost-of-living-escalator increase but the Union declined the proposal. The Respondent also suggested that an incentive pay plan be instigated but this proposal was rejected by the union membership. It appears from the uncontroverted and credible testimony of employee John Baker, who was vice president of the Union and who participated in the negotiations , that prior to the conference on April 14, 1952, the union membership had voted to launch a strike unless agreement was reached on an im- mediate wage increase for male employees . In respect to the issue of the Union's final proposal, Baker gave the following testimony on direct examination: Q. (By Mr. Friedman) Tell us that first ; what was your final proposal? A. That they would give us a raise of some kind to tide over the length of time that the company said it would take to get the incentive plan into operation, and after that time, we would go back to where we were when we started , by the union. 6 The findings in this and the preceding sentence of the text are based upon the credible testimony of P G. Torosian, vice president of the Respondent, who ultimately clarified the details of the commencement of the collective-bargaining negotiations . Testimonial conflicts with these findings are not credited TAlthough at this time there were other issues of their proposed agreement unresolved-- i.e., conditions of holiday pay, starting time, "shift preference and bump-offs," insurance, termination provisions of the contract, "the strike clause in the contract," the Respondent's shop rules and working provisions, it is clear that the principal issue between the parties, which resulted in the impasse and the strike of the employees , concerned their differences over the Union's proposals for a wage increase for male employees. AMERICAN RUBBER PRODUCTS CORP. 85 Q. At the time the incentive plan went into effect? A. Yes, at the time the incentive plan would start paying. Q. This is the proposal you gave [Federal Conciliator] Ralston to take to the com- pany? A. That is right. Q, Did the company send an answer to you that day? A. They did. Q. What was the answer you received? A. That they wouldn't accept the terms, and that they wouldn't give us any kind of a raise at all. The foregoing testimony and the reasons for the decision of the Union to strike were clari- fied, as follows, by Baker's further testimony on cross-examination: Q. [By Mr. Kammholz] Do I recall your testimony correctly this morning to the effect that your final proposal to the company was one for an immediate wage increase of some amount for the men? A. That is right. Q. Did you state how much you wanted? A. When we were talking to [Federal Conciliator] Ralston about it, we told him that we believed that as much as a nickel or a dime would allow us to get the people to stay in the place until we could find out what the incentive plan paid out, and if it was payable, and if it was paid off to the employees, we didn't think there would be any trouble. Q. Did you ask Mr. Ralston to submit the nickel or dime proposal to the company? A. Yes. Q. Was the nickel the rock bottom figure? A, That is right. Q. As to that, was it the union's demand and insistence that that amount of pay raise be made, effective right away? A. That is right. Q. And because you didn't get it on that date the union went on strike, is that right? A. Because they refused to give us anything at all we went on strike. Q. When you say, "Because they didn't give us anything at all," again you are talking about anything at all in the way of an immediate raise for the men? A. For the men. Q. There was no disagreement as to the women? A. No. Q. But unless the company on that date was prepared to give you some raises in pay, effective immediately, you were willing to go on strike, and did go on strike, for that reason? A. We went on strike when the employees voted for it, and it was my job to see that it was carried out; it wasn't my job to go on strike. Q. Isn't it a fact that the company had proposed a so-called cost of living escalator increase? A. Yes. Q. But you turned it down? A. That is right. Q. That you did not want it? A. That is right. Q. What you wanted was an immediate increase for the men? A. That is right. Q. Starting right on that Monday? A. Well, not necessarily, if the company would have showed that they were willing to keep bargaining, and there was a chance for a raise for the men, I don't think there would have been a strike. Q. Didn't you testify this morning that there had to be some money agreed on that day, or there would be a strike? A. That is what the people in the union had voted on. Q. I am speaking in terms of what you say the people voted on, I am not putting it in terms of what you decided on personally. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. That is right, that is what the group decided on, that is what we asked for. Q. They wanted money right away? A. Yes. Q. Effective on that date? A. Yes. Failing to reach an agreement for an immediate wage increase for the male employees, the Union, on April 14, 1952, launched a strike, in which all production and maintenance employees of the Respondent participated. At the commencement of the strike, 137 em- ployees had on file with the Respondent their current voluntary dues checkoff authorizations, which were introduced into evidence and which, at the time of the hearing, were still in the Respondent's possession, unrevoked. On April 14, when the strike started, there were approximately 159 employees, of whom it appears that 133 had signed checkoff authoriza- tions. At the time of the hearing, the strike was still current, none of the strikers had returned to work, and there was no contention that any of the strikers had been replaced. 2. Respondent's solicitation of employees during the strike a. Status of Miller and Stayback In considering this phase of the proceeding, the initial issue to be determined is the status of Stanley Miller and Frank Stayback. The General Counsel contends and the Respondent denied that they were supervisors within the meaning of the Act. In his testimony, P. G. Torosian, vice president and treasurer of the Respondent, described Stayback as foreman of the women's department and Miller as foreman of the milling and calendar department on the night shift. Stayback was in full charge of 60 or 65 employees, whereas about 10 or 12 employees worked under Miller's direction. Stayback distributed work to the employees in his department, checked the production of the department, gave orders to the employees, and handled their requests for leave. Stayback was paid on an hourly basis but Miller was 1 of the 3 salaried employees on the Respondent's payroll. Miller and John Rimkis were in charge of the plant on the night shift. Miller had sole authority to give orders to the employees in his department and to grant them permission to be absent from work. Torosian denied that Stayback or Miller had authority to hire or discharge employees or effectively recommend such action by the Respondent. However, Genevieve Reed testified credibly and without contradiction that Stayback discharged her on his own initiative and that the discharge was effective. At the request of the Union, the Respondent submitted at the second or third collective- bargaining session a list of supervisors to be excluded from the appropriate unit. Stayback and Miller were among the five supervisors listed. No question as to their status was raised by the Respondent until the instant proceeding. Upon the foregoing and the entire record, the undersigned finds that Stayback and Miller were supervisors within the meaning of the Act and that their activities are attributable to the Respondent. b. The solicitations Employee George Rich testified that in late April 1952, he and employee Jack Palmer went to the home of Eugene Chalik, a vice president of the Respondent in charge of production, and that in the ensuing conversation, Chalik said, "The company wouldn't deal with the U.E., but they would take the C.I.O., or any other union, and we could go back to work in a week's time." According to Rich, Chalik also said "that everything else would work out and we could get along all right." However, Chalik placed the conversation as occurring in early June 1952, and testified that the following happened: Rich "said he wasn't clear in his mind on several things and he wanted to get them clarified. He didn't understand why we were not negotiating with the United Electrical Workers, and if I could enlighten him some. And I said, as much as I remember of the conversation, that we did not believe at that particular time that they represented a majority of the workers in the plant, and that was probably the only reasou that we were not negotiating at that time ... he showed me a C.I.O. card that he had in his possession at that time, and he wanted to know If we would recognize that union, and I said at that time that we had no objections to a union that represented a majority of the workers, whether it be the C.I.O., or the A.F.L., or the U.E." As between these two witnesses, Chalik impressed the undersigned as being the more reliable and sincere. Accordingly, the undersigned accepts Chalik's testimonial version of AMERICAN RUBBER PRODUCTS CORP. 87 his conversation with Rich and rejects Rich's testimony in regard thereto . It is found that Chalik's remarks were not violative of the Act. According to the credible and uncontroverted testimony of employee Jesse Stevens, he had the following conversation at his home with Foreman Miller about May 17, 1952: Miller "wanted to know how I would like to go back to work . I asked him under what terms ... and he said with any other union except the U.E., and I asked him, well, what about the raise. He said. 'Well, you will get the raise with any other union but the U.E. but you will not go back to work with the U .E. in there.' And I asked him why, and he said , because the American Rubber Products Corp. couldn't sell their products with the U .E. stamp on it, because it was a Communist union." Stevens further testified that he accompanied Miller to the home of employee Ray Walker on the same date and that Miller told Walker "the same thing that he had told " Stevens. About May 20 , 1952, Foreman Stayback called upon employee Ruth Crawford at the latter's home and asked , "Do you want to go back to work? " When Crawford replied in the affirma- tive, Stayback mentioned "the C.LO., and the A.F.L. and ... another union" and stated that the employees could not return to work with the Union as their representative but that "they would either get, you know, a different union, and we could go back to work." Employee Willis Hoops testified credibly and without contradiction that in late May 1952, he had the following conversation at his home with ibreman Miller: Well, Mr. Miller first began the conversation by asking me how I would like to go back to work. I said, naturally, I would like to go back to work. He said, "Well, you understand that you can go back to work with the company if you sign this slip showing that you will leave the U,E . union." I said , "I am not going to sign any slip. I have already signed up with the U.E., and I know the committeemen , and if the company wants us to go back to work they will have to talk to the committees," and he said the company had decided that they would not deal with the U .E., and as I was still with them, I would never go back to work with the American Rubber Company.... he did say we might get a bonus of, a ten per cent bonus which would be out of the profit and divided amongst the employees every six months or year, whichever the employees would want ; that is the only kind of increase that he mentioned to me. It was employee Carrie Schoff's credible and undenied testimony that in June 1952, Fore- man Stayback called upon her at her home and said that "he was going around and trying to get signers for another union ; that the company would start work if they could have another union , and they didn't want to have any dealings with the U . E. and then he asked me to sign a paper when he was there . I didn't read the paper, but I signed it." In a conversation with employee Lois Rodgers and her husband at their home in late June 1952 , Foreman Miller informed them that they could return to work immediately if they "would sign a C.I.O. union card," that they "definitely would not go back to work the U.E.," and that the Respondent "would not negotiate with the U.E," 3. Requests for resumption of negotiations during the strike About April 28, 1952 , Federal Conciliator Ralston suggested to Vice -President Torosian that the Respondent and the Union meet for another collective -bargaining session, but Torosian replied, "I don't know what we are going to bargain ... I don't think they represent the majority " of the employees . About May 14, 1952 , William J. Sheehan , a union representa- tive , telephoned Torosian and suggested that the Respondent and the Union resume negotia- tions. Torosian refused to meet with the Union, questioning the Union 's majority status and saying that "there was nothing to discuss with them." At the suggestion of Federal Conciliator Ralston , Vice-President Torosian agreed to confer with employees Elmer Frahm, Flora Cartee , and John Baker , who were officers of the Union on June 4 , 1952. At the outset of the meeting, 'Ibrosian informed them that he would confer with them only as employees and not as representatives of the Union. Frahm replied that there was little to be discussed under those conditions as the employees were spokes- men for the Union, and inquired of Tbrosian as to his objections to the Union . Torosian re- plied that he "had no objection to the U. E. as a union" but that he did not "believe in the principles that they believe in. " When Frahm asked , "What are their principles ," Torosian countered, "If you don't know , youareaveteran ; get in touch with your Veteran 's Administra- tion, and they will tell you." At that point , Frahm remarked , "All unions have some reds in them. In fact, all of Washington is full of reds." He then inquired whether Torosian 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD would negotiate with the Union and Torosian replied, "I am not having the U .E. handle anything." 8 B. Conclusions 1. The appropriate unit; majority status of the Union The parties agree that all production and maintenance employees of the Respondent, excluding supervisory , management, and office clerical employees , constitute a unit appro- priate for the purposes of collective bargaining. The General Counsel and the Union urge the inclusion of watchmen in the unit, whereas the Respondent argues that watchmen should be excluded.9 At the time of the strike and prior thereto, the Respondent employed two watchmen , whose principal duties were to "watch and punch the clock in protection of the plant," from midnight to 8 a.m. during the workweek and at all hours on weekends. 'Their hours of work were generally during that period of time when the production and maintenance employees were not working. The watchmen were required to visit 8 or 10 punching stations throughout the plant each hour. They performed no production or maintenance work but on occasion when the automatic stoker of the furnace did not feed coal into the furnace properly or ran out of coal, the watchmen would remedy the situation , taking 10 or 15 minutes' time to do so. Although the watchmen did not carry a gun and were not uniformed, a gun was available for their use in case of necessity. The undersigned finds that the watchmen are "guards " within the meaning of the Act and should be excluded from the unit. to The undersigned concludes and finds that all production and maintenance employees of the Respondent , excluding watchmen and supervisory, management, and office clerical employees , constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9 (b) of the Act and that on April 14, 1952, there were approximately 157 employees in such unit. Of these employees , it appears that 132 had signed authoriza- tions for the checkoff of dues in the Union and that all participated in the strike which commenced on April 14 , 1952. It is found that on April 14, 1952 , the Union represented a majority of the employees in the appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 11 2. As to the alleged refusal to bargain The General Counsel contends that the Respondent refused to bargain with the Union, in violation of Section 8 (a) (5) of the Act, "shortly after the strike started on April 14." He does not attack the bona fides of the Respondent in the collective -bargaining negotiations which preceded the strike and, indeed , the record gives no reason to doubt the Respondent's good faith in its negotiations with the Union during that period. On the other hand, the Re- spondent urges several defenses to the complaint's allegations that it refused to bargain collectively with the Union after the commencement of the strike . Of these defenses, one is dispositive of the General Counsel's contentions. In reliance upon the Times Publish- ing 12 and American News 13 cases , the Respondent argues that the Union refused to bargain collectively with the Respondent, that the Union's strike to enforce its adamant demands for 8 The findings as to this conference are based upon the mutually reconcilable testimony of Baker and Torosian Baker's version of the conference given on cross-examination is consonant with that of Torosian. The quotations are from Torosian's testimony. 9During negotiations, the Respondent had, with some reluctance, agreed to the Union's request that the watchmen be included in the unit. 10See Biggs Antique Company, 85 NLRB 554, 556; Riverside Mills, 85 NLRB 969, 971; The Fuller Automobile Company, 88 NLRB 1452, 1458; General Box Company, 89 NLRB 1439, 1440; Scranton Battery Corporation, 89 NLRB 608 11 The Respondent contends that prior to the strike on April 14, 1952, it had reason to doubt the majority status of the Union because three employees told Vice-President Torosian that they had been coerced by the Union into signing authorization cards. The Respondent further asserts that its doubt as to the Union's majority status was increased after the strike by another organization's filuig with the Board a 9 (c) petition covering the Respondent's employees. These circumstances are insufficient to rebut the conclusions reached in the text that on April 14, 1952, the Union was the majority representative of the Respondent's employees. i2 rimes Publishing Company, et al , 72 NLRB 676. 13 The American News Company, Inc , 55 NLRB 1302. AMERICAN RUBBER PRODUCTS CORP. 89 an immediate wage increase for male employees constituted unprotected concerted activity inasmuch as the Respondent would have violated regulations of the Wage Stabilization Board if it had acceded to the Union's request for an immediate wage increase for male employees, and that consequently "the continued insistence by the Union that respondent assent to its illegal contract proposals relieved the Company of any and all obligation to bargain." To recapitulate the facts, set forth in detail above, the Respondent and the Union reached an impasse on the question of a wage increase for male employees on April 14, 1952. The Respondent advised the Union that wage increases for male employees could not be granted without prior approval by the Wage Stabilization Board. Nevertheless , the Union insisted that a wage increase should be given the male employees immediately , rejected other proposals of the Respondent, and stated that unless the Respondent agreed to an immediate increase for the male employees, the Union would launch a strike in accordance with a strike vote previously taken by the union membership. The Respondent declined the Union's demands and the employees went on strike on April 14. In a recent decision, 14 the Board reiterated the following principles: Assuming, arguendo, that payment of the requested increase would have required prior Wage Stabilization Board approval, we would still find the walkout to be protected. It is clear that the normal and proper procedure during a period of wage stabilization is to negotiate an increase and then apply to the proper stabilization agency for approval. We have, accordingly, held that concerted activity to compel an employer to negotiate a wage increase is protected by the Act, so long as no demand is made that the agree- ment be effectuated pending action by the stabilization agencies. (Emphasis in original. Footnotes have been omitted.) Since the Union's demand was for an immediate wage increase for male employees and the purpose of its strike was to enforce such demand and since, so far as this record shows, the granting by the Respondent of such a wage increase would have been violative of the regulations of the Wage Stabilization Board, it follows from the above-quoted principles of the Board that the strike of the employees was not concerted activity within the protection of the Act. The next issue posed by the facts of the instant proceeding; i.e., whether the Respondent was justified In refusing to bargain with the Union after the commencement of the strike for an unlawful purpose and during its continuance, has been answered recently by the Board's decision in the Phelps Dodge case.15 One of the questions posed in that case was whether an employer was obliged to continue to negotiate with the statutory representative of his employees during the pendency of a slowdown authorized by the collective-bargaining representative. In this regard, the Board held as follows: While the precise issue here is one of first impression , the area is not without guide- posts. Although the Union 's majority standing remained unaffected during the course of the slowdown, this alone does not provide the touchstone of the Respondent's bar- gaining obligation under the Act. Under unusual circumstances , a union may, by con- temporaneous action in connection with bargaining, afford an employer grounds for refusing to bargain so long as that conduct continues . This is so because it cannot be determined whether or not an employer is wanting in good faith where measurement of this critical standard is precluded by an absence of fair dealing on the part of the employees ' bargaining representative. We believe that the Union exhibited just such a lack of fair dealing here, by calling a slowdown in an effort to compel the Respondent to accede to bargaining demands. It is well established that a slowdown is a form of concerted activity unprotected by the Act.... Accordingly , whether or not the Respondent exercised its right to discharge the participants , we believe the authorized slowdown negated the existence of honest and sincere dealing in the Union's contemporaneous request to negotiate . In these circumstances , the Respondent was not required to indulge in the futile gesture of honoring the Union's request. For the foregoing reasons , we find that the Respondent's normal obligation to bargain was suspended, and that it did not violate Section 8 (a) (5) of the Act by refusing to bargain during the period of the slowdown.16 14 W. Todd Dofflemyer, Lewis L Dofflemyer, and Robert T. Dofflemyer, individually and as co-partners d/b/a Dofflemyer Bros., 101 NLRB 205. Is Phelps Dodge Copper Products Corporation, 101 NLRB 360 16 Footnotes have been omitted from the quoted material. 90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In view of the foregoing, it is found that the Respondent was justified in refusing to bargain with the Union after April 14, 1952 , during the pendency of the strike which was called by the Union to enforce its unlawful demands for an immediate wage increase for male em- ployees, which constituted concerted activity unprotected by the Act, and which was still current at the time of the hearing. 17 The undersigned concludes and finds that the Re- spondent has not refused to bargain with the Union within the meaning of Section 8 (a) (5) of the Act. Is 3. As to interference , restraint , and coercion The individual solicitation by Foremen Stayback and Miller of employees to abandon the strike and return to work and their attempts to induce employees to abandon their member- ship in the Union, withdraw their designation of the Union as their statutory representative, and designate another organization as such representative , as detailed above , were accom- panied by promises of benefit and threats of reprisal . No merit is found in the Respondent's contention that these activities of Stayback and Miller were isolated statements of individual opinion within the protection of Section 8 (c) of the Act and were not attributable to the Respondent. Accordingly , the undersigned finds that by the foregoing activities and state- ments of Stayback and Miller, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. However, in view of the conclusions reached in the preceding section , it is not found that these activities of Miller and Stayback were violative of Section 8 (a) (5) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above , occurring in connection with the operations of the Respondent described in section I, above , have a close, intimate, and substantial relation to trade , traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY As it has been found that the Respondent has engaged in unfair labor practices , it will be recommended that the Respondent cease and desist therefrom and take certain affirmative action to effectuate the policies of the Act. However, in view of the findings made above, the undersigned will recommend that the complaint be dismissed insofar as it alleged that the Respondent refused to bargain collectively with the Union within the meaning of Section 8 (a) (5) of the Act. CONCLUSIONS OF LAW 1. American Rubber Products Corp., is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. United Electrical, Radio & Machine Workers of America , Local 914, is a labor organ- ization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 17 This conclusion is supported by the Board's holdings in cases involving violations of Section 8 (b) (3) of the Act. E g., in Amalgamated Meat Cutters and Butcher Workmen of North America (A.F L ) et al , 81 NLRB 1052, 1061, the Board held as follows: The duty to bargain, which rests alike on the employer and the representative of the employees, involves the obligation to bargain in good faith concerning terms and con- ditions of employment which are permitted by law. Neither party may require that the other agree to contract provisions which are unlawful And when, as here, one of the parties creates a bargaining impasse by insisting, not in good faith, that the other agree to an unlawful condition of employment, that party has violated its statutory duty to bargain. 18 Since this defense of the Respondent is dispositive of the allegations that the Respondent unlawfully refused to bargain with the Union, it is unnecessary to discuss other defenses of the Respondent in this regard. REPUBLIC AVIATION CORPORATION 91 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 5. The Respondent has not refused to bargain collectively with United Electrical, Radio & Machine Workers of America, Local 914, within the meaning of Section 8 (a) (5) of the Act. [Recommendations omitted from publication.] REPUBLIC AVIATION CORPORATION and INTERNATIONAL UNION, UNITED PLANT GUARD WORKERS OF AMERICA, Petitioner. Case No. 2-RC-5759. July 10, 1953 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Samuel Korenblatt, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Murdock, Styles, and Peter- son]. Upon the entire record in this case, the Board finds: 1. The Employer is engaged in commerce within the mean- ing of the Act. 2. The labor organization involved claims to representcer- tain employees of the Employer. 3. A question affecting commerce exists 'concerning the representation of employees of the Employer within the mean- ing of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner seeks to represent, separately or in any unit the Board finds appropriate, employees performing plant guard duties at the Employer's four plants on Long Island, New York, at Farmingdale, Port Washington, Mineola, and Greenlawn, excluding other employees and supervisors. The Employer contends that the unit appropriate for these em- ployees should also include employees performing similar duties at its 99 Church Street and 41 Park Place plants in New York City. The parties further disagree as to what payroll categories of employees are guards within the meaning of the Act and may be included in the unit of guards sought by the Petitioner. The Employer, an aircraft manufacturer, has its principal office, plant, and warehouse at Farmingdale, where purchases are made and administrative and labor policies are determined for all plants. It maintains two other manufacturing plants, one at Port Washington and the other at Greenlawn, and a warehouse at Mineola, for receiving and inspecting parts. At its two New York City plants, the Employer handles primarily drafting, engineering , and experimental work, and does no production manufacturing. The New York City plants are ap- proximately 50 miles from the main plant at Farmingdale; 106 NLRB No. 17.