Textile Workers Union of America

TEXTILE WORKERS UNION OF AMERICA, CIO 743 3. The Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (1) and (5) of the Act. [Recommendations omitted from publication.] TEXTILE WORKERS UNION OF AMERICA, CIO and its agents, EARL McGREW AND FRANK R. METZGER and LOCAL 1172, TEXTILE WORKERS OF AMERICA, CIO, and its agents, FRANK R. METZGER, ANTON DVORSCAK, and FRANK TURK and PERSONAL PRODUCTS CORPORATION. Case No. 13-CB-229, May 5, 1954 DECISION AND ORDER On October 6, 1953 , Trial Examiner Martin S . Bennett issued his Intermediate Report in this proceeding , finding that the Respondents had engaged in and were engaging in certain unfair labor practices, in violation of Section 8 (b) (1) (A) and 8 (b) (3), and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto . Thereafter, the Respondents filed exceptions to the Intermediate Report. The Respondents, the Charging Party, and the CIO, which had been granted permission to file a brief as amicus curiae, filed briefs in support of their contentions . On January 19, 1954, the Board granted the Respondents ' request for oral ar- gument, which it heard on February 23, 1954. 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 . i The Board has considered the Intermediate Report , the exceptions and i The Respondents contend that they were denied due process by the followings rulings, among others: (1) The admission into evidence of the deposition taken from Dorcie Whisler; (2) the grant of the General Counsel's motion orally to amend the complaint during the hearing; (3) the denial of their motion for a 10-day adjournment because of this amendment; (4) the partial denial of their request for a bill of particulars; and (5) an asserted lack of "notice of the legal elements of their alleged guilt," admittedly to be "measured by a principle of law as yet unwritten." These contentions are without merit. As to (1), the deposition reveals that the Respondents were permitted to, and did, examine and cross-examine Whisler and that the deposition was otherwise taken in compliance with the provisions of Section 102.30 of the Board's Rules and Regulations. The Respondents object to the deposition primarily because Whisler refused to testify whether he had discussed his testimony with counsel. Although the Trial Examiner apparently credited Whisler, his testimony is both internally consistent and elsewhere corroborated, either in detail testimony or from the logic of the events established in the record. Accordingly we find that the Trial Examiner did not abuse the discretion given him by Section 102.30 (d) to rule upon the admissibility of the deposition. With respect to (2), the amendments during the hearing reflected developments subsequent to the issuance of the original complaint and did not allege violations of additional provisions of the Act. There is no real contention that the Respondents were denied ample opportunity to defend or that the additional matters alleged in the complaint were not actually litigated. Accordingly, we find that these amendments were proper. National Union of Marine Cooks and Stewards, etc., 90 NLRB 1099, at footnote 2. As to (3). the record establishes that the request was denied with the understanding that the Respondents might, at the concluLon of the General Counsel's case, 108 NLRB No. 109. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD briefs, the oral argument , and the entire record in the case, and hereby adopts the findings , conclusions , and recommenda- tions of the Trial Examiner with the following modifications: 1. The Trial Examiner found , and we agree, that T WUA-CIO, its Local 1172, and the individual RespondentsI refused to bar- gain collectively in good faith with the Company in violation of Section 8 (b) (3) of the Act, as amended . We adopt the Trial Examiner's conclusion in this regard , without necessarily relying on all of his reasoning. Section 8 (b) (3) of the Act makes it an unfair labor practice for a labor organization or its agents: To refuse to bargain collectively with an employer, pro- vided it is the representative of his employees subject to the provisions of Section 9 (a). Section 8 (d) provides that: For the purposes of this section, to bargain collectively is the performance of the mutual obligation of the em- ployer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours , and other terms and conditions of employ- ment, or the negotiation of an agreement , or any question arising thereunder, and the execution of a written contract incorporating any agreement reached if requested by either party, but such obligation does not compel either party to agree to a proposal or require the making of a con- cession. The legislative history of these provisions clearly indicates that it was the purpose of Congress to impose upon labor organizations the same duty to bargain in good faith which it had imposed upon employers in Section 8 (5) of the Wagner Act, and continued in Section 8 (a) (5) of the amended Act. 3 move for such additional time as they required to meet issues newly raised. No request for further time was thereafter made. See International Longshoremen's and Warehousemen's Union, etc., 90 NLRB 1021, 1032. With regard to (4) and (5), it is clear that the complaint specified conduct by which the Respondents had allegedly refused to bargain in good faith and it sufficiently appears from the record that in the course of the hearing the Respondents were fully advised of the nature of the General Counsel's contention. Under these circumstances, we think it is not open to the Respondents to challenge the proceeding on the ground that they were not sufficiently informed of the nature of their alleged violation. See N. L R. B. v. Express Publishing Company, 312 U. S. 426, 431-432. 2 For the reasons set forth in the Intermediate Report, we adopt the Trial Examiner's find- ings that the individual Respondents named in thecomplaint were agents of TWUA-CIO and its Local 1172 and that TWUA- CIO had constituted its Local 1172 its agent for purposes of collec- tive bargaining, making them a joint bargaining agent, separately and jointly liable for acts attributable to either of them. 3The conference report, for example, referring to the identical provision in the Senate bill, states: "This provision of the Senate amendment imposed upon labor organizations the same duty to bargain which under Section 8 (a) (5) of the Senate amendment was imposed upon employers." House Conf, Rept. No. 510, 80th Cong., 1st Sess„ p. 43. TEXTILE WORKERS UNION OF AMERICA , CIO 745 Moreover , the standards and tests set forth in Section 8 (d), applicable to both employers and unions , closely paraphrase those established in decisions of the Board and the courts in the preceding years , 4 including the addition of the qualifying epithet : "in good faith."5 Unlike the rejected proposed amend- ments , Section 8 ( d) does not prescribe a purely objective test of what constitutes " good faith" in collective bargaining. 6 Sections 101 and 210 of the Act declares it to be a policy of the United States to eliminate those obstructions to the free flow of commerce occasioned by instability in employment relations "when they have occurred by encouraging the practice and procedure of collective bargaining ," on the assumption that "the best interests of employers and em- ployees can most satisfactorily be secured by the settle- ment of issues between employers and employees through the processes of conference and collective bargaining." This policy is clearly neither furthered nor effectuated when an employer or a union so exercises its bargaining powers as to thwart or impair the bargaining process, which requires for its furtherance cooperating in the give and take of personal conferences , with a willingness to let ultimate decision follow a fair opportunity for presentation of opposing views, arguments , and positions. As part of the basis upon which the Trial Examiner con- cluded that the Respondents violated 8 (b) (3), he found that the Respondents decided "to force the Employer's hand in the then current negotiations ," not by a strike "in the commonly understood sense of the word," but by a series of unprotected harassing tactics: and organized refusal to work overtime, an unauthorized extension of restperiods from 10 to 15 minutes, the direction of employees to refuse to work special hours, slowdowns , unannounced walkouts , and inducing employees of a subcontractor not to work for the employer . We find that the 4 See cases cited in National Maritime Union of America , etc., 78 NLRB 971 at 980- 982. 5 International Filter Company, 1 NLRB 489, 498; National Licorice Co. v. N. L. R. B., 309 U. S. 350, at 358, affirming as modified 104 F . 2d 655, enforcing as modified 7 NLRB 537. 6The House Conf. Rept. No. 510, 80thCong. lst Sess., p. 34, reads : "The Senate amendment did not, in the definition section, contain any definition of 'collective bargaining ,' but did contain (sec. 8 (d)) a provision stating what collective bargaining was to consist of for the purposes of section 8. It was stated as the performance of the mutual obligation of the parties to meet at reasonable times and confer in good faith with respect to wages , hours, and the other terms and conditions of employment, , .. This mutual obligation was not to compel either party to agree to a proposal or require the making of any concession . Hence, the Senate amendment, while it did not prescribe a purely objective test of what constituted collective bargaining as did the House bill , had to a very substantial extent the same effect as the House bill in this regard, since it rejected , as a factor, in determining good faith , the test of making of a concession and thus prevented the Board from determining the merits of the positions of the parties." 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD record supports these findings .7 The Respondents engaged in these unprotected concerted activities' at a time when they purported to be conferring in good faith with the Employer in negotiations . These unprotected tactics interfered with produc- tion and put strong economic pressure on the Employer who was thereby disabled from making any dependable production plans or delivery commitments . ' Moreover , the Employer was not informed of any specific demands which these tactics were designed to enforce nor what concessions it could make to avoid them . to We think it clear that such unprotected harassing tactics were an abuse of the Union ' s bargaining powers--"irreconcilable with the Act' s requirement of rea- soned discussion in a background of balanced bargaining re- 7 The Trial Examiner premised his findings of responsibility upon admissions by officers of the local to the personnel director, statements by union stewards to supervisors, testimony by employees that they had been told the union policy by other supervisors, testimony by em- ployees that they had been told the union policy by other employees or by Frank Metzger (named as agent for both the TWUA-CIO and its Local 1172) or by their union steward, testi- mony of company officials that they had been told by employees that they had been told by union stewards to engage in tactic involved, testimony of other employees that certain tactics had been suggested at union meetings by Earl McGrew, the international's representative. Most of these findings are dependent upon the Trial Examiner's resolution of credibility. The Respondents, however, admit that the record is replete with statements of the sort which the Trial Examiner relied upon in finding factual responsibility but argue that such statements are privileged by Section 8 (c). However, considered realistically in their total setting, these statements cannot be regarded as expressions of views, arguments, or opinion, nor the dissemination thereof. They were rather what Senator Taft called "statements which are acts in themselves or contain direction or instructions. These, of course, would be deemed admis- sions and hence competent under the well-recognized exception to the hearsay rule." 93 Cong. Rec. 7002 (June 13, 1947); cited by the Board in Amalgamated Meat Cutters, 81 NLRB 1052, at 1062; IBEW Local 501, et al, v, N. L. R. B., 341 U. S. 694, affirming 181 F. 2d 34 (C. A. 2), enforcing 82 NLRB 1028. SSee cases cited in the Intermediate Report. 9This type of disruption is not a concomitant of a strike; there, after the initial surprise of an unannounced walkout, the company knows what it has to do and plans accordingly. See Intl. Union, UAW, AFL, Local 232 v. W. E R. B., 336 U. S 245, at 249. 10Senator Ellender of the Senate Committee on Labor and Public Welfare, 80th Congress, elaborated in debate on the kind of conduct at which Section 8 (b) (3) was aimed. He cited a case in which John L. Lewis would not allow the coal-mine operators to see a contract which he demanded they sign. He objected to a case in which Mr. Reuther demanded a 30-cent increase, and he would not take "no" for an answer. He concluded these illustrations with the statement: I say to my colleagues that such action is not collective bargaining. In order to remedy this situation, the pending bill provides that both parties must bargain in good faith. The bill contains a definition of collective bargaining. Under the bill, it means meeting at regular intervals and seeking in good faith to negotiate an agreement. (93 Cong. Rec. 4529) In view of these statements, we are of the opinion that the failure to communicate the purpose of the harassing tactics is, in the context of this case, further evidence of the Respondents' unwillingness to maintain an environment which would further reasoned negotiations. We note that this citation from the legislative history without more suffices to rebut the Respondents' contention that union conduct which has as its objective the completion of a legal contract cannot be a refusal to bargain. TEXTILE WORKERS UNION OF AMERICA, CIO 747 lations upon which good -faith bargaining must rest"" --which impaired the process of collective bargaining that Congress intended not only to encourage but to protect. Although the employer could legally have resorted to self-help by discharging employees for such conduct or by retaliating by shutdown, it did not do so . 13 Nor did it refuse to bargain. i< Instead , it sought a much less drastic remedy by filing the present charge , requesting the Board to investigate and adjudge the Respondents ' conduct under the Federal act. 11 The Respondents and the CIO contend that the Supreme Court holding in Intl. Union, UAW , AFL Local 232 v. W. E. R. B., 336 U. S. 245 (1949), rehearing denied, 336 U. S. 970, clearly indicates that "policing of such conduct is left wholly to the states" and that "the conduct here described is not forbidden by this [Federal] Act and no proceeding is authorized by which the Federal Board may deal with it in any manner." In that case , the Supreme Court sustained the jurisdiction of a State to prohibit recurrent or intermittent unannounced stoppages of work to win unstated ends, during the course of negotiations . In conclusion , the Court stated (336 U. S. at 254): There is no existing or possible conflict or overlapping between the authority of the Federal and State Boards, because the Federal Board has no authority either to investigate , approve or forbid the union conduct in ques- tion. This conduct is governable by the state or it is entirely ungovernable. Without regard to whether this language should be character- ized as dictum , as the Trial Examiner found to be the case, it is clear that the Supreme Court was not there concerned with the question whether such conduct may constitute evi- dence of a lack of good faith in bargaining . Nor did it there- by promulgate a rule of evidence . As the Supreme Court has stated , " good faith" is a question of fact to be decided n The Board so characterized a slowdown during the course of negotiations in Phelps Dodge Copper Products Corporation, 101 NLRB 360 at 368. I2 The Supreme Court has found that an employer refused to bargain in good faith by conduct which merely "impairs the bargaining process." H. J. Heinz Company v. N L. R. B., 311 U. S. 514, affirming 110 F. 2d 843, enforcing 10 NLRB 963; see also N. L. R. B. v. American National Insurance Company, 343 U. S 395, affirming 187 F. 2d 307 (C. A. 5). enforcing as modified 89 NLRB 185. i3Elk Lumber Company, 91 NLRB 333(dischargefor slowdown); International Shoe Company, 93 NLRB 907 (shutdown occasioned by economic effect of intermittent work stoppages; replace- ment of participants). 14 Phelps Dodge Copper Products Corporation , supra ( refusal during slowdown Justified). Is Although we agree with the general counsel and the charging company that recourse to the Board as an alternative to self-help is less detrimental to either the union's bargaining position or to the union's representative status , we do not consider this factor relevant to a deter- mination of the propriety of any Board order. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in each case on the totality of the relevant evidence." We find that the unprotected harassing tactics employed herein are evidence that the Respondents failed to bargain collectively in good faith . Accordingly , we perceive no conflict between the Supreme Court ' s decision in that case and our holding herein. 1' 2. The Trial Examiner found that the Respondents violated 8 (b) (1) (A) in the following conduct: a. The threat by Local Secretary Turk on February 19 to employee Menken, who had arranged to work overtime and wished to do so , that he had better not work any overtime if he knew what was good for him. b. The threat by Steward Kaslofski , the same day, to employee Menken , that he had better punch out when his 8 hours were up or he'd be sorry. c. The threat by Local Vice-President Wirtschoreck on July 1 to employee Dorcie Whisler , who intended to honor a subpena to take his deposition , that he was foolish for going down there , was sticking his neck out and might get hurt. d. The threat by Local Secretary- Treasurer Biga in July to employee Adeline Kreil , who intended to honor a subpena to testify at the hearing herein, that people would make it pretty tough for her if they won and that he hoped she would testify the right way. e. The blocking of ingress by cars into the plant by Shop Chairman Metzger who parked his car in the only driveway leading into the plant on January 28 in such a manner that other cars could not pass, that he might direct employees to the location of the union meeting to be held during the shift for which they were reporting, f. Certain of the conduct which he found violative of Section 8 (b) (3), i.e . the slowdowns , the walkouts , and the extension of rest periods. Section 8 (b) (1) (A) makes it an unfair labor practice for a labor organization or its agents to restrain or coerce em- ployees in the exercise of the rights guaranteed in Section 7, namely, to engage in or refrain from "any or all" con- certed activities for the purpose of collective bargaining or other mutual aid or protection. The Respondents argue that a union does not violate the Act by coercing employees into engaging in unprotected concerted activities, such as the refusal to work overtime , because such concerted activities are not within the purview of Section 7. As Section 7 guarantees the employees the right to refrain from UN. L. R. B. v. American National Insurance Company, 343 U. S. 395, 402-3; Singer Manufacturing Company v. N. L. R. B. 119 F. 2d 131, 134 (C. A. 7), enforcing as modified 24 NLRB 444, cert. denied 313 U. S. 595, rehearing denied 314 U S. 705. 17 However, we refer the Respondents to that case for the Supreme Court 's rejection of various constitutional arguments now addressed to us. TEXTILE WORKERS UNION OF AMERICA, CIO 749 assisting labor organizations and to refrain from "any or all of such activities," we find this contention without merit. The fact that the concerted activities were unprotected is irrelevant in view of the statutory proscription against a union's using certain means to compel employees to assist it by engaging in any conduct. We therefore adopt the Trial Examiner's findings "a" and "b." The Respondents contend that Section 7 does not guaran- tee employees the right to testify at Board hearings, and that threats to dissuade employees from testifying are there- fore outside the purview of 8 (b) (1) (A). We think it clear that participation in proceedings before the Board, whether in support of or in opposition to the position of a partici- pating labor organization, is a right of employees to be exercised for mutual aid, without coercion or. restraint. 11 Accordingly, we adopt the Trial Examiner's findings "c" and "d." In view of the Respondents other 8 (b) (1) conduct herein, we find no merit in their contention that the Metzger car episode is too isolated to be found violative of the Act, or to warrant the issuance of a remedial order. In connection with finding "f," the Trial Examiner stated that there was an "intrinsic distinction" between peaceable strike action by a labor organization to obtain an unlawful closed shop, which the Board has found violative of 8 (b) (3) but not 8 (b) (1) (A) and the supporting authority, and the present case "where the crux of the matter is the tactics and means utilized by Respondents." The Respondents assume, arguendo, that compelling employees to engage in slowdowns, walkouts, and extensions of rest periods might be violative of the Act but emphasize that the proscription in 8 (b) (1) (A) is against violence or threat of violence which are not involved in employee compliance with union requests that they engage in such conduct. Under these circumstances, they argue that the Trial Examiner's finding is purely derivative, although the Board has specifically rejected a derivative finding in relation to 8 (b) (3) violations.19 As the 8 (b) (1) (A) violations which we have found warrant the issuance of the same remedial order which we would direct were we to find additional violations of 8 (b) (1) (A), we find it unnecessary to pass upon this con- tention. Accordingly, we do not pass upon the validity of the Trial Examiner's finding "f." 18Contrary to the Respondents' contention, the Board has found similar conduct by an employer to be an independent violation of 8 (1). Sanco Piece Dye Works, Inc., 38 NLRB 690, at 726. 19See National Maritime Union. 78 NLRB 971. 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 the Respondents, Textile Workers Union of America, and Local 1172, Textile Workers of America , CIO, their successors, assigns, officers , repre- sentatives and agents, including Earl McGrew, Frank M. Metzger, Anton Dvorscak, and Frank Turk, shall: 1. Cease and desist from: (a) Refusing to bargain collectively in good faith with the Company, by engaging in slowdowns and unauthorized extensions of rest periods; by engaging in walkouts or partial strikes for portions of shifts or entire shifts; by inducing employees of other concerns not to perform work for the Company; by refusing to work special hours or overtime; or by engaging in any similar or related conduct in derogation of the statutory duty to bargain , in this order being conditionedupon Respondents remaining the representative of the employees in the unit herein found to be appropriate, subject to the provisions of Section 9 (a) and (c) of the Act. (b) Threatening employees of the Company with reprisals for working overtime and for giving testimony in a proceeding before the Board, and by blocking plant entrances so as to pre- vent ingress and egress by employees. (c) In any other manner restraining or coercing the employees of Personal Products Corporation in the exercise of the right to refrain from engaging in any of the activities guaranteed by Section 7 of the Act, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request bargain collectively with Personal Products Corporation so long as Respondents remain the representative of the employees in the unit found above to be appropriate, sub- ject to the provisions of 9 (a) and (c) of the Act. (b) Post in conspicuous places at their respective business offices and meeting halls and on the bulletin boards of the Company, the latter willing, including all places where notices to members and employees are customarily posted , copies of the notice attached to the Intermediate Report marked "Appendix A." 20 Copies of said notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by Respondents and their designated agents, be posted by Respondents immediately upon receipt thereafter. Reason- 20 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 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." TEXTILE WORKERS UNION OF AMERICA, CIO 751 able steps shall be taken by all Respondents and their agents 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 with ten (10) days from the date of this Order what steps Respondents have taken to comply herewith. Member Beeson took no part in the consideration of the above Decision and Order. Intermediate Report and Recommended Order STATEMENT OF THE CASE This proceeding, brought under Section 10 (b) of the National Labor Relations Act, 61 Stat. 136, is based upon charges duly filed by Personal Products Corporation, herein called the Company, against Textile Workers Union of America, CIO, herein called the International, and its agents, Earl McGrew and Frank R. Metzger, and against Local 1172, Textile Workers Union of America. CIO, herein called Local 1172, and its agents, Frank Metzger, Anton Dvorscak, and Frank Turk, allofwhomare jointly referred to herein as Respondents. Pursuant to said charges the General Counsel of the National Labor Relations Board issued a complaint on June 5, 1953 , and an amendedcomplainton June 25, 1953 , alleging that Respondents had en- gaged in unfair labor practices within the meaning of Section 8 (b) (1) (A) and (3) of the Act. Copies of the charges , complaints , and notice of hearing thereon were duly served upon Respondents. Specifically, the amended complaint, as later amended at the hearing, alleged in essence that Respondent International and Respondent Local 1172, by their agents, officers, stewards, and representatives, had threatened employees with reprisals for working overtime and for giving testimony in the instant proceeding, had parked aq automobile on one occasion so as to block entrance to the plant driveway by employees; had authorized and directed employees to engage in numerous walkouts and work stoppages without advance notice to the Company; had authorized and directed employees to extend rest and lunch periods beyond the time limits set by management, without permission from or advance notice to the Company, had authorized and directed employees to engage in slowdowns by limiting production; had authorized and directed employees to refuse to work overtime, had authorized and directed employees not to report to work, to report late for work, or to report at times other than their scheduled starting times, had authorized and directed employees to hold meetings on company time and property without receiving permission from the Company, and had directed, authorized, and induced outside stevedores, not employees of the Company, to refrain from performing work for the Company Respondents' answer denied the commission of any unfair labor practices, denied that the complaint stated the commission of any unfair labor practices. alleged that the National Labor Relations Board lacked jurisdiction over the subject matter set forth in the complaint, and alleged that the Act was unconstitutional to the extent that the conduct set forth in the complaint was violative of the Act. Pursuant to notice a hearing was held at Chicago. Illinois, from July 7 through 17, 1953, before the undersigned Trial Examiner, Martin S Bennett, duly designated by the Chief Trial Examiner.i All parties were represented by counsel who participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the outset of the hearing, I received in evidence, over objection by Respondents, the deposition of one, Dorcie Whisler, which was duly taken on July 2, 1953, pursuant to request duly made by the General Counsel for sufficient cause shown, all parties were represented by counsel on that occasion and were afforded full due process. Respondents filed, at the instant hearing, a consolidated pleading which included (1) a motion to dismiss the complaint on the same grounds raised in its answer; (2) a motion iThe originally scheduled date of hearing was advanced 6 days at the request of Respond- ents. 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to dismiss the substantive allegations of the complaint; and (3) a motion for further particulars. The motion to dismiss the complaint and the allegations thereof was denied, and the request for further particulars was granted in part and denied in part At the close of the hearing the parties were afforded an opportunity to argue orally and to file briefs and/or proposed findings or conclusions Oral argument was waived and the time for filing briefs was thereafter extended onthreeoccasions, once at the request of the General Counsel and twice at the request of Respondents. Briefs have been received from all parties. Upon the entire record in the case and from my observation of the witnesses, I make the following: FINDINGS OF FACT L THE BUSINESS OF THE COMPANY Personal Products Corporation is a New Jersey corporation which maintains its principal office in North Brunswick, New Jersey, it is a subsidiary of Johnson and Johnson. It operates plants in Milltown, New Jersey, and Chicago, Illinois. The instant proceeding is concerned solely with the Chicago plant where the Company is engaged in the manufacture and sale of sanitary and surgical dressings. During the 12-month period preceding this hearing, the Company purchased raw materials valued in excess of $ 1,000,000, of which over 50 percent was shipped to its Chicago plant from points outside the State of Illinois. During the same period, the value of its finished products was in excess of $1,000,000, of which over 50 percent was shipped from the Chicago plant to points outside the State of Illinois I find that the Company is engaged in commerce within the meaning of the Act. IL THE LABOR ORGANIZATIONS INVOLVED Textile Workers Union of America, CIO, and Local 1172, Textile Workers of America, CIO, are labor organizations admitting to membership employees of the Company. III. THE UNFAIR LABOR PRACTICES A. Introduction and background 1 The issues Several issues are presented for decision herein The primary issue is whether Re- spondents, at a time when they were negotiating with the Company concerning the terms of a new collective-bargaining agreement, engaged in walkouts, slowdowns, extensions of rest periods, refusals to work overtime, failures to report for work, and similar conduct, and whether, by said conduct, Respondents have refused to bargain collectively with the Company As will be apparent, the crux of the General Counsel's case is the coincidence of this conduct with the bargaining negotiations at which Respondents were seeking a contract with more liberal benefits than in the prior contract. Not only is this conduct alleged to be unprotected under the Act, but further, in view of its timing and context, it is alleged to be in derogation of the collective-bargaining principle and therefore a refusal to bargain in good faith with the Company Another issue is whether by the above-described as well as other conduct, Respondents have restrained and coerced the employees of the Company in the exercise of the right guaranteed by Section 7 of the Act to refrain from engaging in concerted activities. 2. Background The employees of the Company were represented by an independent labor organization for several years until December of 1950 when it affiliated with Respondent International. On February 12, 1951, Respondent International was certified, in Case No. 13-RC-1723, after the customary election proceedings, as the bargaining representative of the production and maintenance employees of the Company with certain exclusions set forth below. Local 1172 was chartered by the International on February 28, 1951 Unlike the International, it has no constitution; nor does it have any bylaws. Although it has the customary officials, there TEXTILE WORKERS UNION OF AMERICA, CIO 753 is no evidence that it has a business agent or full-time paid representative, thus indicating that its outside affairs are handled by an International representative. Negotiations were thereafter carried on for a collective-bargaining agreement and, on June 23, 1951, a contract was signed Its duration was until October 15, 1951, and from year to year thereafter, absent a 60-day notice to prevent renewal. The contract duly renewed itself for the period ending October 15, 1952, and it appears that due notice was given to prevent its renewal on that date. Although the Company desired to continue the contract on an interim basis, pending the execution of a new agreement , Respondents refused. It is significant that the contract, as well as contemporaneous supplement thereto, was executed not only by Earl T. McGrew, International Representative of Respondent inter- national, in behalf of that organization, but also by the "LOCAL UNION BARGAINING COM- MITTEE " The latter group consisted of five persons, including Respondent Frank Metzger, president of Local 1172, and Respondent Frank Turk, its secretary. It may be noted that membership in the Local is confined to employees of the Company and that all signatories to the contract, with the exception of McGrew, were employees at the time of its signing. Meetings for the negotiation of a new agreement commenced on September 30 or during October 1952; approximately 20 were held and they lasted up to the time of the present hearing. Although some testimony was developed by Respondents in an effort to establish that the Company did not bargain in good faith at these meetings, the evidence preponderates heavily against such a finding. It would unduly burden this report to set forth the entire bargaining history. The most that can be said for Respondents' position in this respect is that the Company bargained hard; however, that is its privilege under the Act. What I deem controlling herein is the fact that Respondents made a number of contract proposals for increased benefits and that the Company met with them on demand, made concessions, accepted some proposals, and rejected others, moreover the Company made counterproposals, particularly so on June 15, 1953, when it accepted most of the proposals made on June 2 by Respondents. Thereafter, negotiations deteriorated into an impasse. I find, therefore, that the Company performed its obligations under the Act and that it did bargain in good faith at these bargaining sessions. See N. L. R. B. v American National Insurance Co , 343 U S 395, N. L. R B. v Landis Tool Co., 193 F. 2d 279 (C. A. 3), N. L. R. B. v. Hart Cotton Mills, Inc., 190 F. 2d 964 (C. A. 4); Associated Unions of America v. N. L. R. B., 200 F. 2d 52 (C. A. 7), N. L. R. B. v. Dealers Engine Rebuilders, Inc., 199 F. 2d 249 (C. A. 8), and Celanese Corporation of America, 95 NLRB 664 While the Company may have bargained hard during these bargaining negotiations, this is of no avail to Respondents Its only significance actually is that it tends to establish the motivation of Respondents with respect to the events set forth below, some of them admittedly at the instigation of Respondents.2 3. The responsibility of Respondents Respondents contend that Local 1172 was not the bargaining representative of the em- ployees of the Company; this contention is presumably directed at the elimination of Local 1172 from any order that might result from this proceeding and to the parallel elimination of the international from responsibility for the events set forth hereinafter. It is true, of course, as found above, that the international was the only labor organization certified as the bargaining representative of the employees involved herein However, the reason for this is readily apparent. The certification issued on February 12, 1951, after the cus- tomary representation proceedings, and Local 1172 was not chartered until February 8, 1951 As found, the international had been in the picture since December of 1950 when it absorbed the independent labor organization previously existing at the plant 2 Findings as to the bargaining negotiations are based primarily on the testimony of Edward Jochim, general manager of the Chicago plant. He was a clear and forthright witness whose testimony impressed me favorably and is fully credited. He was controverted, in part at least, by the testimony of International Representative Earl McGrew. While both resorted to notes to refresh their recollection, Jochim's testimony was patently more accurate by far. Furthermore, McGrew's testimony, at times, was less than objective as to the content of the proposals made by the Company. And his testimony as to the conduct of union meetings was contradicted by other witnesses for Respondents. Accordingly, I have not accepted McGrew's testimony where it is in conflict with that of Jochim. 339676 0 - 55 - 49 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD But there is considerable additional evidence which establishes , at the very least, that Respondent International and Respondent Local 1172 constituted themselves a joint bar- gaining representative of the employees involved herein For not only did the officials of the Local assert the right to speak for the employees of the Company as their bargaining representative, but in addition , the Company recognized their status as such. This joint or hybrid status was in effect admitted by International Representative McGrew who testified that the International was interested in collective bargaining at the plant whereas the Local handled the grievance procedure under the contract , this alone serves to establish the true nature of the bargaining representative. Still other evidence demonstrates the joint nature of the bargaining relationship, or, stated otherwise, demonstrates that insofar as collective bargaining was concerned , the inter- national had in effect designated the Local , which is merely an administrative agency of the International , as its joint bargaining representative, as the General Counsel contends herein, and that the Company so recognized it. Some of this evidence is set forth below. (1) Thus, during 1951 , negotiations were carried onby International Representative McGrew between February and June and a contract was signed on June 23 . Present at these negotia- tions was Frank Metzger , president of Local 1172 from the date of its charter on February 8 through December of 1951, as well as Frank Turk, secretary of the Local Moreover, according to Metzger , the Local held almost weekly meetings during these negotiations. As will appear hereinafter , it is significant that they were held during working hours, just as in 1953. (2) The June 1951 agreement , as well as a contemporaneous supplement , was executed by International Representative Earl McGrew, in behalf of that organization, and also, significantly, by the "LOCAL UNION BARGAINING COMMITTEE." The 5 signatures for the latter group included those of Metzger and Turk, the other 3 apparently were Local officials at the time, but the record is not clear as to their precise titles. There is no evidence of any union policy not to join a Local , as this, and the International on a bar- gaining agreement. In fact, the present record warrants the opposite conclusion , in view of the foregoing (3) During the life of this 1951 agreement until October, 1952, it was the officials and shop stewards of the Local who were in regular contact concerning plant grievances under this contract with Personnel Director Checchio, of the Company He flatly recognized their asserted right to appear in this capacity . The grievance committee with which he met almost always included President Metzger , as well as President Dvorscak, who replaced Metzger after December of 1951; Secretary Turk, Vice -President Wirtscho reck ; and Recording Secretary Biga. From time to time various plant stewards also appeared None of these, with the exception of Metzger, ever held any capacity with the International , and he did not assume a post with that organization until January of 1952. (4) It is true that in the 1952- 1953 negotiations for a new contract International Representa- tive McGrew, who held no capacity with the Local, was, the spokesman for the collective- bargaining agent. However, present at the bargaining table and occasionally consulted by McGrew were 5 or 6 officials of the Local. Included among them was Respondent Metzger, who was occupied positions with both organizations . Thus, he was-Local president, as described above, until December of 1951. He became an International representative on January 2, 1952, and remained in that capacity until December 31 of that year when he went on leave of absence, during part of which period he worked for the Company, then, late in March of 1953, Metzger returned to the post of International representative Paradoxically , the record demonstrates , despite Metzger 's denial which is not credited, that on January 15, 1953, Metzger was appointed shop chairman of Local#1172 in an an- nouncement to the local membership by President Dvorscak and Recording Secretary Biga. This notice , posted on the plant bulletin board, stated that Metzger would " perform such duties as are assigned to him by the officers of Local#1172 T.W.U.A. and of the International Union. " Thereafter , Metzger, during January , did sit in on contract negotiations Moreover, Metzger finally admitted , that between February and March of 1953 he received payments from the International for his expenses , significantly this covered a period prior to his resumption of the post of International representative . Other evidence hereinafter demonstrates that Metzger claimed to be an International representative early in February. This serves only to demonstrate the closeness or oneness of Respondents in representing the employees of the Company. (5) As will appear below , when the factual picture is more fully developed, much of the alleged unlawful conduct was engaged in at the direction of officials of the Local. This in- TEXTILE WORKERS UNION OF AMERICA, CIO 755 cluded meetings which were called by the Local during working hours, all of these were attended and addressed by International Representative McGrew, who reported on various matters. And the testimony of a number of witnesses , including some for Respondents, demonstrates , contrary to the testimony of McGrew , and I so find , that at least some of these meetings were called at his request . I further find that McGrew either presided over the meetings at their start or that they were convened by a Local officer and then turned over to him . Similarly . Metzger , as International Representative, attended all meetings after March that were called during working hours, in fact directly instigating one of the walkouts on February 2. Moreover , when a refusal of employees to work overtime was raised by officials of the Company during collective-bargaining negotiations with McGrew, he admittedly refused to discuss it on that occasion , claiming that it was a matter for discussion away from the bargaining table Not only is there no evidence that McGrew or any other official of the international disavowed this or any other conduct of the employees involved, but rather the foregoing demonstrates that it was in fact ratified by McGrew . And, as will appear , McGrew was personally implicated in some of this conduct. (6) The very testimony of McGrew notes the joint or hybrid character of this joint bar- gaining representative. He testified that the International concerns itself with collective bargaining and the Local with handling grievance procedure under the contract . This is borne out by the expired contract which provides in several instances for the participation of officials of the Local in these procedures . It is also to be noted that dues -deduction authorizations signed by the employees of the Company , as provided by the aforesaid contract, treat the deduction as one for both labor organizations. (7) Although the evidence preponderates heavily in favor of the position of the General Coun- sel independently thereof, Respondents ' original answer admitted that both Respondents were the collective-bargaining representative of the employees ; this was orally amended at the hearing to deny this admission . No claim of error or other circumstances in explana- tion of the original admission was made. The original answer is therefore competent, in this respect , as an admission or declaration against interest . See Wigmore , Par. 1048 et M, Plodzien v. Segool, (Ill.) 40 N.E. 2d 783 , City Bank v Oberheide 307 Ill. App. 519, Boots v. Canine 94 Indiana 408, and Rhode v. Bartholomew , 94 F. 2d 272 (C. A. 9) (Calif.). In sum , I find that Respondent Local and Respondent International constituted themselves a joint bargaining representative of the employees of the Company engaged in a common ven- ture, and were so recognizgd by the Company , it would follow then that they are estopped from denying their status as such, particularly in the absence of any proof in derogation of such status . See N. L. R. B. v. Acme Mattress Company, Inc., 192 F. 2d 524 (C. A. 7); Refrigerator Manufacturing Inc., (Supplemental Decision) 104 NLRB 510, Altamont Knitting Mills, Inc., 101 NLRB 525, New Castle Products , 99 NLRB 811 , 815, International Typo- graphical Union, et al., 87 NLRB 1215; Chicago Typographical Union No . 16, et al., 86 NLRB 1041, and International Typographical Union, et al. (Supplemental Decision), 104 NLRB 806. Moreover , I further find, in the alternative , on the foregoing facts and the entire record, that the International duly constituted Local 1172 , its admitted administrative agency, as its agent for the purpose of representing employees of the Company and engaging in the various concerted activities set forth below , instigated by the Local within the scope of said agency , and that it , as well as the Local , is responsible for such conduct Los Angeles Building and Construction Trades Council , 105 NLRB 135, District 50, United Mine Workers of America , AFL, 106 NLRB 903, and Smith Cabinet Manufacturing Co., 81 NLRB 886. See National Gas Co (Supplemental Decision) 106 NLRB 819 , and N. L. R. B. v. E. A. Lab- oratories , 188 F 2d 855 (C. A. 2) cert. den. 342 U.S. 871. B. The refusal to bargain 1. The appropriate unit and majority representation therein The complaint alleges that all production and maintenance employees of the Company, excluding guards, inspectors, and office, clerical, professional, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining. This is the identical unit for which Respondent International was duly certified in the representation proceeding in Case.No. 13-RC-1723. I find therefore that the above-described unit, the appropriateness of which Respondents do not challenge, herein, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD An election was duly conducted in the representation proceeding and was won by Respondent International 'which was certified, on February 12, 1951, as the exclusive representative of the employees in the above-described unit. In addition, as found above, the International has constituted Local 1172 its joint collective-bargaining representative as well as its agent. I find therefore that on February 12, 1951, and at all times thereafter Respondent Inter- national and Respondent Local 1172 were and now are, pursuant to Section 9 (a) of the Act, the duly designated representative of all the employees in the above-described appropriate unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, or other conditions of employment. 3 2. Sequence of events The conduct set forth hereinafter took place at a time when the business of the Company was particularly vulnerable to any interference with its manufacturing and shipping operations. According to the uncontroverted testimony of General Manager Jochim, the Company maintains a level production cycle utilizing three shifts throughout the entire year in order to, keep em- ployees working steadily and thus avoid seasonal layoffs, this policy has uniformly been fol- lowed. The first and third quarters of the year are the peak shipping periods, due to the buying habits of its customers. The period from December of 1952 through March of 1953 was "the best period that we ever enjoyed. Orders were above all previous records." I find, therefore, that there was an exceptionally high demand upon the Company at this time for production in order to meet purchase orders as well as upon the shipping and receiving department to fulfill these demands. The hours of the 3 production shifts are from midnight to 8 a. m.; 8 a. in. to 4 p. m ; and 4 p. in to midnight, respectively Their respective complements are approximately 35, 70, and 37 employees. It must also be borne in mind that Respondents had presented their original contract proposals on October 6, 1952, that meetings were held during the ensuing months, and that the parties were far apart on the terms of an agreement In fact, a Federal conciliator came onto the scene in February and participated thereafter through June. The Company ultimately proposed substantial concessions onJune15,butthesewere rejected by the union membership. The last meeting between the parties, equally ineffectual, was held on June 30 In sum, Respondents had been attempting to extract a collective-bargaining agreement from the Com- pany with increased benefits since October and the Company, while refusing to yield in full, had made some concessions. It is against this background of long-drawn-out bargaining negotiations that the following events took place. This conduct fell into various types and commenced in January of 1953. (a) The overtime ban Initially it may be noted that the contract which had expired in October of 1952 provided, inter alia, for time and one-half pay for hours worked in excess of 8 daily as well as in excess of 40 weekly. The original union proposals submitted at the commencement of bar- gaining negotiations in October contained a number of proposed changes for the new agreement but were silent as to any changes desired in overtime policy. This serves only to establish that the conduct which follows was not engaged because of any basic economic policy of Respondents. The motive behind it, as contended by the General Counsel, is therefore to be found elsewhere. That this conductdirectly affected Respondents' production at a crucial time when Respondent was interested in having employees work overtime in order to meet demands for its product is obvious. The initial manifestation of a refusal to work overtime took place at the end of 1952. Rumors that a ban on overtime work was to be imposed by Respondents came to the attention of Personnel Director Mauro Checchio. OnDecember 29, he approached Respondent Dvorscak, president of Local 1172, and they were immediately joined by Vice-President Wirtschoreck, also referred to in the record as Wirt. Checchio testified that he asked Dvorscak "if the overtime ban which I had heard existed in the plant was official." Dvorscak replied that it was. Checchio then invited them to his office where they forthwith repaired. Checchio stated 3 The recommended order which follows hereinafter, if adopted by the Board, will not be tantamount to a certification of either Respondent. See National Maritime Union, et al., 78 NLRB 971. TEXTILE WORKERS UNION OF AMERICA, CIO 757 that he was now asking them "officially" and that he wished an "official answer whether or not there was an overtime ban." Both union officials replied that there was. Checchio asked if it was a complete ban on overtime. Wirt replied, "No, there is not The overtime ban is for during the week overtime. We will not allow any of the employees to work over eight hours a day" (Emphasis added.) I credit the foregoing uncontroverted testimony by Checchio, neither Wirtschoreck nor Dvorscak testified herein The foregoing statements are particularly significant because, according to Plant Manager Jochim, the majority of the plant employees expressly desire overtime work, in fact, some employees have quit because they were not chosen for overtime work and employees, when hired, generally inquire as to the prospects of overtime work.4 The next manifestation of union policy took place on or about January 7, 1953. Glenn Cobb, superintendent of the shipping and receiving departments, placed a notice on the plant bulletin board on January 7 announcing to the employees of his department that "in order to catch up on the unloading of raw materials" certain designated employees would work overtime on January 7, 8, and 9 and that all three shifts would work on Saturday, January 10. Later that morning, Union Steward James Rasmussenofthe shipping and receiving department, an agent of the Local, informed Cobb that the men designated on the list would not work the overtime hours, it may be noted that Rasmussen himself was designated for work on January 7 and 9. Cobb asked Rasmussen if this was an official notice from the "union." Rasmussen expressed some uncertainty and left to check, presumably with his superiors in Local 1172. He returned shortly and informed Cobb that this "was official notice." None of the men sched- uled for overtime work on January 7, 8, and 9 worked on those occasions These findings are based upon the credited and uncontroverted testimony of Cobb; Rasmussen was not called as a witness. This ban on overtime in the shipping and receiving department was further implemented by Steward Rasmussen. During the second or third week of January 1953, he spoke to Dorcie Whisler, a senior packer in the department, and informed him that "it was union orders no overtime for anyone, that Iwouldhavetoget out of there at 4:30 " Whisler forthwith abandoned his practice of working overtime until sometime in March when he was advised, by a source not disclosed in his testimony, that the ban was lifted Whisler, by arrangement with management, worked overtime whenever his services were required, according to his superior, Cobb, at least 50 percent of Whisler's working days were in excess of 8 hours. Whisler's testimony is corroborated by his timecards which demonstrate that he regularly worked overtime in December of 1952, prior to going on a 2-week leave of absence, as well as thereafter in the latter part of December, and during January of 1953 through January 19. Significantly, his overtime work thereafter was nonexistant , despite his personal desire to work the time and the need for his services in this respect He performed no overtime work, save for a fraction of an hour on February 19, until March 11 and 13 when he worked 8 5 and 8 4 hours respectively. During the next few weeks his overtime work gradually increased. 5 Respondents contended herein that Whisler was a supervisory employee and therefore not an employee under the Act Totally aside from other aspects of this contention, it is not substantiated by the record. Whisler was one of a group of 9 or 10 men under the super- vision of Cobb. Although part of his duties was to segregate and assign orders for the employees of his and other shifts, the greater part of his work was menial He possessed none of the attributes of a supervisor spelled out by Section 2 (11) of the Act. At the most, he was a lead man of the type customarily included in bargaining units and, in fact, he was included in the bargaining unit at this plant Moreover, his wage rate was classified and spelled out by the prior collective-bargaining agreement . Respondents' contention herein is therefore 4A somewhat similar incident took place on January 8 and 9 involving Wirtschoreck and Stewart Zacek. On that occasion, Assistant Production Superintendent Nemeth attempted to get a cleanup crew for overtime work on January 10. The employees first agreed and then reneged. It is unnecessary to detail this incident for, although the facts are suspicious, I am not satisfied that the record will support a finding that the two union officials were speaking in a representative capacity on that occasion. Accordingly, no adverse finding is based upon this incident involving Nemeth. 5 These findings are based upon the testimony of Cobb, the deposition of Whisler, and on the documentary records of Whisler's working hours; as stated, Rasmussen did not testify herein. 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rejected. N. L. R. B. v. Whitin Machine Co , 204 F. 2d 883 (C. A. 1); N. L R. B. v. Quincy Steel Casting Co., 200 F . 2d 293 (C. A. 1); Precision Fabricators , Inc., v . N. L. R. B. 204 F. 2d 567 (C. A. 2), N. L. R. B. v. North Carolina Granite Corp.. 201 F. 2d 469 (C. A. 4); Kearfott Co., 106 NLRB 716, Palmer Manufacturing Corp., (Supplemental Decision) 106 NLRB No. 119, Howard-Cooper Corp., 105 NLRB 753, and J V. Reed & Co., 105 NLRB 721. A similar pattern was followed by Respondents in the case of Edward Kelley, an operator, who was subpenaed to testify for the General Counsel . Although a reluctant witness and admittedly prefering not to testify against Respondents , his testimony corroborates that of Whisler . Kelley admitted that he had performed much overtime work prior to the latter part of December but very little during January, February , and March of 1953. His time card substantiates this, indicating that he regularly worked overtime until January 16 and that he performed none thereafter until March 24. He admitted that Frank Metzger had made "a passing remark " to him , as he passed Kelley at work, stating " No more overtime." He originally fixed this statement as made in January or February or possibly in March but, after having his recollection refreshed by his affidavit , admitted that the statement might have been made in January, as the affidavit indicated . He originally testified that Metzger was returning from a recently concluded negotiating meeting with the Company, but later stated that he was uncertain whether Metzger was returning from the meeting or whether a meeting was held later that day. It will be borne in mind that Metzger , who did not deny the foregoing , was an International representative of Respondent International throughout 1952; that he returned to work for the Company early in January of 1953 and became shop chairman of Respondent Local on January 15; and that he returned to the International late in March He was reimbursed by the Inter- national for expenses between February 6, when he was suspended by the Company, and March 20 when he returned to the International. Kelley further testified that approximately in February , then Assistant Production Super- intendent Robert Olive asked him why he would not work 8 hours a day, this being one-half hour of overtime added to the scheduled 71 hours a day. Kelley promptly asked his steward, Arnold Kaslofski , if he should work 8 hours, the latter , an agent of the Local, replied that "The production workers areworkingsevenandahalf hours a day" and that Kelley "couldn't" work the longer day. Kaslofski was not called as a witness herein. Respondent endeavored to show that Kelley was not available for overtime work, due to outside commitments , during at least a portion of this time when he failed to work overtime. Kelley's testimony indicated that his inability to work overtime was in large measure a recent development . Moreover, even if it were not, I deem it to be immaterial in view of his practice of working overtime at management's request and management 's desire that he continue to do so Arthur Menken is a cleanup man whose regular work hours are from 3:30 to midnight. On February 19, 1953, he happened to be at the plant in advance of his starting hour. Second shift Production Foreman Edward Drysch approached and asked Menken, according to the credited and uncontroverted testimony of the latter , if he would perform some extra cleanup work ; Menken agreed , punched in his time card at 2:42 p. m., and started work. At 4:15 Menken was approached by Secretary Frank Turk of Local 1172 who forthwith advised him that "You better not work any overtime if you know what's good for you." Menken resumed his work until approximately 11 p. in. when Third Shift Steward Arnold Kaslofski approached and instructed him to "Be sure and punch out when your eight hours was up ." Kaslofski also added that Menken should do this "if I knew what was good for me or I'd be sorry " Menken forthwith complied with these threats, punching out his timecard at 11:12 when 8 hours, plus a 30-minute lunch period, had elasped . As stated , neither Turk nor Kaslofski testified herein. A most significant aspect of this conduct , and this directly implicates Respondent Inter- national, was the attitude of International Representative McGrew concerning these refusals to work overtime. Early in February , at one of the meetings during contract negotiations, General Manager Jochim, as he testified , referred to the various disruptive practices then going on in the plant, including specifically the ban on overtime work, and sought to explore the matter with McGrew . The latter replied that it was not a proper point for discussion at a negotiating meeting, despite the fact that the previous contract had treated with this topic, and advised Jochim that if he wished to settle the matter he should telephone him on another occasion outside of bargaining sessions. McGrew admitted that Jochim, at, a meeting just prior to February 5, had raised the failure of the employees to work overtime and had wished to discuss the matter on that occasion McGrew allegedly claimed that the "union" had nothing to do with the matter , that it was a TEXTILE WORKERS UNION OF AMERICA, CIO 759 problem for management in the operation of the plant; and that it was not a proper subject for the negotiating conference. Checchio, although placing the meeting in January, confirmed Jochim's version of the incident which is substantially supported by McGrew. I credit Jochim's version and find that this conversation took place during the first week of February 1953. It may be noted, despite McGrew's claim that Respondents had nothing to do with the overtime ban, that there is considerable evidence, set forth above, which demonstrates Respondents' sponsorship of the overtime ban and I so find. I find that McGrew's statements on this occasion, as well as those of the agents of Respondents described above, constituted authorization or a ratification of the conduct under consideration. (b) Extended rest periods For many years, the Company has uniformly provided 10-minute rest periods per shift for each of the 3 shifts. The time for taking these breaks is fixed and, at the appropriate hour, the employees customarily stop work, 10 minutes later, they customarily return to work. There is no evidence that, prior to January 20, 1953, the Company had ever experienced any difficulty with its employees in this respect. However, on or about January 20, and continuing thereafter uniformly through March 20 or 21 of 1953, General Manager Jochim personally observed that the employees would commence their breaks as scheduled, but that, instead of returning to work after 10 minutes as scheduled, they would uniformly take 15 minutes, this constituting a 50 percent extension of the alloted time, these extensions were never authorized or ratified by management. Jochim's observation corresponded almost identically with that of then Production Super- intendent James Duffey. He first observed this conduct on the second and third shifts on January 20. Duffey instructed his foremen to forbid the employees to engage in such conduct However, as stated, these extended rest periods continued until late in March Their testimony in these respects is corroborated by that of Production Foreman Janecek of the third shift and Foreman Robert Vath of the first shift. Their shifts uniformly, after January 20 or 21, took 15-minute breaks. That this extension of rest periods constituted a refusal by each of the 3 shifts to work for 10 minutes per shift and therefore constituted a partial strike is apparent. Moreover, the record amply demonstrates and I find that it was not a spontaneous activity on the part of the employees but rather one directed and ratified by the designated agents of Respondents, namely, the shop stewards specifically designated to represent the employees at the plant concerning working conditions and acting within the scope of their apparent and general authority. See Smith Cabinet Manufacturing Co., 81 NLRB 886 Respondent adduced no evi- dence concerning, and did not at the hearing dispute, the authority of these agents to speak for them. See Shen-Valley Meat Producers, 105 NLRB 491. Thus, when Third Shift Production Foreman John Janecek reported for work on January 20, he was informed by Production Superintendent Duffey that the second shift had, without authority, taken 15-minute rest periods that day and that he, Janecek, was to take steps to prevent a recurrence thereof on his shift. At approximately 5 p. in. Janecek contacted Third Shift Steward Arnold Kaslofski and asked Kaslofski if the third shift would emulate the conduct of the second shift in this respect. Kaslofski replied, according to the uncontroverted and credited testimony of Janecek, that "I know they are going to take 15 minute break periods because I told them to." Janecek protested that it was not Kaslofski's "place" to establish the time limits for rest periods and that he, Janecek, proposed to contact all employees on the shift; advise them that they were permitted only 10-minute breaks; and announce that management expected them not to extend these breaks. Kaslofski replied, "Go ahead, John. Do your job, but I will just have to re-contact all the people and advise them to take 15 minute break periods." That this constituted ratification, if not authorization by Kaslofski, is apparent and requires no further comment. Still persisting in the belief that management rather than Respondents' stewards established working hours in the plant, Foreman Janecek proceeded forthwith to contact each of the 28 to 30 employees then on the shift. He instructed them that, irrespective of what the day shift might have done, the break on this shift was still a 10-minute break Despite this, the third shift employees took a break from 6 to 6:15 and from 10 to 10:15 that evening, a 5-minute extension in each instance, something that had never happened before during Janecek's 12-year tenure as foreman. The shift continued to take 15-minute breaks daily until sometime in the latter part of March, none with the authorization of management. 760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A similar event took place on the first shift of January 21, starting at midnight Foreman Robert Vath observed that the shift was not leaving the cafeteria at 2: 10 a. m. pursuant to custom He asked Union Steward Hattie Savage, according to his uncontroverted and credited testimony, "if they intended to follow suit as to other shifts in taking an extended break period and she replied "Yes." The shift did not return to work until 2:15 and the employees also extended the second rest period until 6:15 a. m. As in the other cases, this shift continued its unauthorized conduct until the latter part of March when it returned to the normal and authorized break period. There is no evidence that Savage, on January 21, endeavored to procure the return of these employees and I find that she, on this occasion, ratified their conduct. Other testimony implicates Frank Zacek, steward of the second shift and also, according to the credited testimony of Personnel Director Checchio, a regular member of the union grievance committee which regularly met with management concerning plant grievances, like the other stewards implicated herein, he did not testify. Adeline Krell, a packer on the second shift, was a forthright witness whose testimony impressed me favorably and is credited. She testified that during the latter part of January, while she was working at her machine, Steward Zacek approached her and stated "from now on we are going to take fifteen minutes break, we got to have slow up in production." Thereafter the entire shift engaged in 15-Minute breaks, as described above. I find that Zacek directed this action. Still other testimony reveals that, similar to its instigation of these unauthorized breaks, Respondents were also instrumental in terminating them, thus further establishing that the entire procedure was a creation of Respondents. Employee Margaret Hammerschmidt credibly and uncontrovertedly testified that, commencing in January, the employees on her shift extended their rest periods to 15 minutes and that this lasted "for a couple of months " Thereafter, Steward Zacek approached her and stated "We are going back to our regular time, ten minutes." This statement inadvertently placed by Hammerschmidt as taking place in April, apparently took place in the latter part of March A similar statement was made to Second Shift Production Foreman Drysch by Vice- President Wirtschoreck of the Local during the latter part of March. He approached Drysch and stated, according to the credited and uncontroverted testimony of the latter "that the work is back to normal and that the ertlployees are going to take a ten minute relief period. He made that statement. Then he asked the question whether the department is going back to working overtime." It will be recalled, as found above, that at the instigation of union officials, the employees had refused to work overtime up to the latter part of March 1953. The coupling of the extended rest periods with the overtime ban by Vice-President Wirtschoreck on this occasion, and their coincidence in expiration dates, demonstrates that they were regarded as complementary weapons by Respondents. As will appear in following sections, there was other action engaged in by Respondents of a similar nature during this period, although with different expiration dates. (c) Refusal to work special hours Another type of conduct engaged in by Respondents was the direction of employees to refuse to comply with the Company's instructions to vary their working hours on occasion; this took place in the maintenance department According to Maintenance Foreman Dugdale, the maintenance department employees include 3 electricians whose regular hours of work are from 8 to 4:30 p. m in January of 1953, 1 of the 3, Earl Roseberry, was scheduled to work from noon to 8:30 p. m. on Wednesdays. This was planned in order to permit the servicing of lift trucks which were- used in the plant during the day and were available for servicing only after 4:30 p. m These hours had been established for Wednesday work for approximately 2 years On Wednesday, January 21, Roseberry reported for work at 8 a. m. instead of noon. Dugdale asked why he had reported early and Roseberry replied that he had been instructed by Shop Steward Wilbur Whiteside "not to work special hours." At 10 or 10.30 a. m., Dugdale asked Whiteside why Roseberry had not been permitted to report to work at noon as scheduled, stating that he, Dugdale, understood that Whiteside had instructed Roseberry to report at the early hour. Whiteside confirmed this, replying that he, Whiteside, "got orders from some of the Union officers that they were not supposed to work special shifts." TEXTILE WORKERS OF AMERICA, CIO 761 On January 28, Roseberry was again scheduled to report for work at noon. However, as on the previous Wednesday, he reported at 8 a. m., stating that he had been instructed by Steward Whiteside not to work the special hours,and rather to report at the earlier hour. Dugdale again spoke to Whiteside, asking the reason for his instructions to Roseberry. Whiteside replied that "It was the order of the union officers." Dugdale asked "What union?" but Whiteside refused to commit himself further. Dugdale protested that this effectively prevented his department from servicing the lift trucks, as it obviously did. Whiteside immediately went over to President Dvorscak of Local 1172 and conversed with him; he returned and suggested that Dugdale discuss the matter with Dvorscak. Dugdale refused, pointing out that Whiteside was the shop steward who "was representing the shop"; Whiteside did not refute this last statement. I find that Rpseberry did not work the hours scheduled for him on these two occasions pursuant to the instructions of Respondents through their agent, Shop Steward Whiteside, acting within the scope of his apparent authority. See N. L. R. B. v. G. W. Thomas Drayage & Rigging Co., Inc., et al; 206 F. 2d 851 (C. A. 9). Dugdale's testimony discloses that Maintenance Mechanic Edwin Scarborough, whose regular hours were from 4 p. m. to 12:30 a. m., was scheduled to work from 8 p. m. to 8:30 a. m. on January 20 or 21, but, he too reported at his customary hour of 4 p. m. He stated that he had done so pursuant to instructions from Steward Whiteside not to work any special hours. There is similar evidence with respect to mechanic Mahlon Rhodes who, on reporting at an hour other than his scheduled hour on January 21, advised Dugdale that he had done so pursuant to a telephone call not to work special hours. Inasmuch as there is no direct testi- mony involving Steward Whiteside or other union officials in the Scarborough and Rhodes in- cidents, it is hearsay as to Respondents and no adverse finding is based thereon. In the same vein and similarly viewed herein is the hearsay statement by electrician McNamara to As- sistant Foreman Smalts, attributing to Steward Whiteside a direction not to work different hours, an instruction allegedly complied with by McNamara. (d) The slowdowns There is substantial evidence that the employees in the various departments slowed down in their production and work efforts during the period from January through March of 1953. Other evidence squarely implicates officials of Respondents in this conduct and I so find. As will hereinafter appear, certain charts received in evidence herein buttress the direct testimony concerning the slowdowns. According to General Manager Jochim, he personally observed employees in the shipping and receiving departments work at a slower pace and exert less effort from January through March. They took additional rest periods for smokes and would not commence a second job, upon completion of a prior job, as rapidly as they had in the past.6 Superintendent Cobb of the shipping and receiving department made similar observations in the period from January through March. He testified that the movements of employees in their work were considerably slower than they had been. As an example, he cited the fact that employees had customarily and regularly handled shipments of waste bales on a fork truck with a minimum of 2 bales per trip. During this period they carried but 1 bale at a time. The rest periods were longer and more frequent. This came at a time when the department was behind in its efforts and management was desirous of unloading accumulated freight cars which contained raw materials and of making corresponding shipments of manufactured goods. Cobb reported his observations to Jochim and moreover, at a meeting held on February 19, urged the employees of the department to abandon this slowdown for the common good. The testimony of Whisler, senior checker in the department, is in a similar vein. He testified that commencing in the latter part of January work was done at a slower pace, that there was considerable smoking, and that instead of unloading a number of skids at a time, as had been the practice, the men would unload one, talk or smoke, and then unload another. That the slowdown was approved and instigated by Respondents is demonstrated by Whisler's testimony. Thus, one day in February, Secretary Frank Turk of Respondent Local announced to Whisler that he should "Take it easy with your work, for God sake. The Company don't give a goddamn about us. Slow down and take it easy." Whisler protested that he could not slow down any further inasmuch as he happened to be working with a smashed foot as it was. 61 do not here, or in the findings that follow, rely on the opinion of Jochim, as contrasted with his observations, concerning the cause of the slowdown. 762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A meeting of the employees of the first shift was convened after 8 a. m. on the morning of January 27 in the plant conference room, this was a meeting of employees in which management played no part. Among those present were Secretary Frank Turk of Respondent Local and Frank Metzger, then shop chairman of the Local and allegedly in a period of hiatus between his terms as International representative.7 Metzger did most of the talking, according to em- ployee Rowena Tarra, and I find that he was in charge of the proceeding. The testimony of Production Superintendent James Duffey corroborates that pf Tarra as to the circumstances of the meeting. Metzger informed the group of first shift operators that "in case our machine would break down, we would take our time in getting it back into working order again, and by that maybe the Union and the Company could come to some agreement a lot sooner than they had been." Metzger also recorded the names of the operators present as well as the numbers of the machines they were operating and the meeting ended. The foregoing findings are based upon the credited testimony of Tarra. I deem it significant that she was under subpena and patently testified most reluctantly for the General Counsel, stating that she did not wish to testify against Respondents. I believe that her testimony is accordingly entitled to that much more weight under these circumstances. Metzger presented vague and evasive testimony to the effect that he remembered little of the incident; here, as elsewhere, his recollection was quite faulty and his testimony unimpressive, although his recollection, as a witness for Respondent on relatively ancient matters, was, in glaring contrast, more precise. The record is replete with evidence, and I find, that the individual operators by atten- tion or lack of attention to their duties were in a position to affect output considerably. Thus, by wilful lack of care in the insertion of raw materials into the machine, the op- erator would perforce cause the machine to jam; similarly, by not replacing depleted rolls of material as rapidly as had been the practice, production would also be affected adversely. There is considerable testimony in the record concerning the so called Jane Stanley-Metzger incident. As will appear in the following section, Respondents convened meetings of plant employees during working hours at various locations away from the plant. One of these was held for the second shift in the latter part of January during afternoon working hours, probably at 2 or 3 p. m. The meeting was held at a tavern and was presided over by Frank Metzger. A large number of employees attended and various employees asked questions about the contract negotiations. One of them, Jane Stanley, asked if the employees were to continue with the slow down. Metzger replied in the affirmative. Stanley then stated that she was having difficulty curbing the outputofher machine inasmuch as it was in excellent operating condition. Metzger replied, according to employee Edna Mesick, "We have to keep on going like that for an hour and a half to two hours to keep the production down." Findings as to this incident are based upon the mutually corroborative testimony of em- ployees and union members, Margaret Hammerschmidt, Edna Mesick, and Adeline Krell. Mesick did place this meeting after February 9, but her testimony elsewhere indicates that she attended meetings only up to February 9 and that this tavern meeting preceded that date. All were under subpena and their testimony on direct examination was uniformly clear, direct and forthright, in fact, the vigorous cross-examination which they underwent served only to confirm my favorable impression of them on direct examination. A number of witnesses were called by Respondent to rebut the foregoing. Stanley had no recollection of engaging in this exchange with Metzger. Employees Hajek, Schiller, Y'Barra, Maier, Nelson, Webb, and McGinnis uniformly testified that they attended all meetings during this period and that they 7 It will be recalled that Metzger worked for the Company for some years; took a leave of absence in 1952 to serve as International representative; took a leave of absence from that post at the end of 1952 and returned to the employ of the Company on or about January 13; was appointed shop chairman of the Local on January 15; was terminated by the Company on February 6; and returned as International representative, as he claimed, in the latter part of March. I entertain serious doubts concerning the veracity of his claim that he had no International connection between January and March of 1953. According to Duffey. Metzger claimed that he was still an International representative, about 1 week prior to February 4. and demonstrated a card to this effect; furthermore, on February 4, Duffey asked him if he was still working for the International and Metzger admitted that he was, announcing at the same time his rate of pay. TEXTILE WORKERS UNION OF AMERICA, CIO 763 did not hear any remarks resembling the Stanley -Metzger conversation testified to by the wit- nesses for the General Counsel. This group presented no details of any of the meetings, although Hajek admitted that he had heard Stanley ask Metzger questions of an innocuous nature at union meetings. I do not credit the testimony of the last named group of witnesses for Respondent for the following reasons. Firstly, as found above , the witnesses for the General Counsel were an impressive group and have been credited in full for the reasons stated. Added weight is giveia to the testimony of Hammerschmidt by the fact that Secretary -Treasurer Biga of Local 1172 brought pressure to bear onher , 1 week before she testified , in an effort to prevent her from testifying. Hammerschmidt, a member of the Local and under subpena, was ap- proached by Biga who informed her that the subpena with which she had been served "was not worth the paper it is written on " and that she did not have to appear and testify at this hearing; nevertheless she did. Similarly, added weight is given to the testimony of Krell by the fact that Biga brought like pressure to bear upon her several days before she testified herein. He asked her if she proposed to testify against Respondents , apparently having learned that she was under subpena along with Hammerschmidt. Kreil replied that she would do so. Biga then informed her "the people are going to make it pretty tough for you if we win . . . I hope you testify the right way." Secondly , the statements attributed to Metzger are of a pattern with a plethora of similar statements made by various union officials during this immediate period, some of them by Metzger himself and particularly so on January 27, as testified by Tarra. Thirdly, although the number of witnesses involved who testified for Respondents is large , I believe that they either did not notice the incident at the time, were not present at the meeting, or were attempting to present partisan testimony favorable to their labor organization. Ac- cordingly , their testimony is not credited herein. I find that Respondent Metzger directed employees on this occasion to continue to curb their production. The remaining incident in this particular series is one which implicates International Representative McGrew. Adeline Kreil testified that she attended union meetings regularly up to February 9; that "one of the first meetings after they had a few negotiations with the Company" was held at a Legion Hall and was conducted by McGrew ; that McGrew summarized for the group what management was offering and refusing to offer ; and that McGrew informed the group then that "we are old enough to know what we are doing. If we want to slow up, that is up to us , the union ain't telling us what to do." According to Krell she was present at this meeting from 3 p. m. until 5:45 p. m. when she left, prior to the end of the meeting. Krell was cross-examined vigorously on this aspect of her testimony . She then fixed the occasion as "the first meeting we had in January"; repeated the position then attributed to Jochim concerning thevarious demands byRespondents ; and attributed to McGrew the state- ment that "They were in negotiations and he said we can hold out and Mr. Jochim will give in." According to Kreil, McGrew read a list of 23 demands that Respondents were making upon the Company , and she named among them a 5-percent raise, an increase in insurance benefits , an increase in sick benefits , and an added paid holiday. Her testimony is closely supported by Respondents ' exhibit 1 which is a list of 22 contract demands , including those specified by Krell, submitted by Respondents to the Company at the outset of the bargaining negotiations . She later added that McGrew stated there was not much to be said at that time because negotiations were just commencing. Pressed further on cross -examination to again repeatMcGrew's statements , Krell attributed to him the statement that "We can slow up production by taking longer rest periods and not running the machines so steady , but he isn 't telling us to do it, we are old enough to know." Krell added, on being pressed still further for details , that this cross -examination had served to refresh her recollection and that she had therefore been able to add somewhat to her original testimony on direct concerning McGrew 's statements . In my observation and belief she de- monstrated extreme candor in making this statement and I believe that she was telling the truth in this respect as well as elsewhere. Respondents apparently were ofthe belief that Kreil had attributed these remarks to McGrew as of February 9, although her testimony , as indicated, placed the occasion somewhat earlier. McGrew denied that he, on February 9 or any other occasion , made the statements attributed to him by Kreil, although he admittedly attended all meetings held during the period in question. It may be noted that according to Krell, the meeting followed a walkout by her shift on the day in question ; this topic of walkouts is discussed in the following section in.more detail. 764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A number of corroborating witnesses were called to the stand by Respondents, being substantially the same group used for corroboration on the Stanley-Metzger episode de- scribed hereinabove. This group included Stanley, Hajek, Kondry, Maier, Webb, Y'Barra, and Schiller who uniformly testified that they had attended all union meetings during 1953, which as will appear were held frequently during the period material herein, except that several had missed the most recent meeting held shortly prior to the commencement of the instant hearing. They uniformly denied hearing McGrew make the statements attributed to him by Kreil. I am not unaware that Kreil's testimony stands alone, testimonially speaking, against that of the group which testified in behalf of Respondents. But I firmly believe her to have been an honest witness in this matter, as I did in the statements attributed by her to Metzger at or near this time at the tavern meeting, in which instance her testimony was otherwise corroborated. And, as noted, she presented her testimony despite the threat of reprisal uttered several days earlier by Secretary Biga of Local 1172. It may be that McGrew who was busily engaged at this time in negotiations and in attending frequent union meetings has forgotten his words on the occasion in question; in addition, I have in mind the fact that Jochim's version of the contractual negotiations has been found to be more reliable than that of McGrew. As for the group of supporting witnesses, I am no more disposed to credit them here than in the Metzger incident. Their testimony provided no details and may best be characterized as negative in contrast with Kreil's superior recollec- tion. I believe that they were either not at the meetings, perhaps have forgotten the meetings or have adopted a partisan approach in their testimony in order to aid their labor organization. Not without significance herein is the testimony of Ray Y'Barra concerning a union meeting held on June 24, 2 weeks prior to the commencement of this hearing. Present on the platform were local officials and McGrew, all of whom explained to the membership "the effect on us if the case was lost: the effect onus if the case was won." In view of the foregoing considera- tions, including the demeanor of the various witnesses, I credit Kreil's testimony in full and find that McGrew's remarks constituted a thinly disguised policy statement by Respondents to these members on the subject of slow downs and rest periods. It is further found that Re- spondents and their agents, including Respondents McGrew, Metzger, and Turk instigated and authorized slowdowns of employees. (e) Unauthorized walkouts Last but not least in this recital of events, and in fact the conduct that most directly and drastically affected the Company's business operations, was the walkouts of employees, thereby harassing the Company considerably during the period material herein. I shall first set forth the general picture with the list of walkouts and then proceed to a consideration of more direct testimony which demonstrates the leading, and actually managing, role of Re- spondents in this activity. As stated, the Company maintains three shifts around the clock in its production department. In addition there are approximately 21 persons in the maintenance department of whom all but four are on the second or 8 to 4 p. in. shift. The shipping and receiving department apparently operates with but one shift. It will be recalled that Respondents and the Company were attempting to negotiate a collec- tive-bargaining agreement from October 1952 through June of 1953. The Company, although bargaining in good faith, did not makeconcessfons to the extent desired by Respondents during the negotiations and I have previously set forth some of the conduct engaged in by Respondents, largely in January of 1953. And, as inthe other types of conduct, the walkouts also commenced in January of 1953. There were 25 of them, commencing with 1 by the second shift on January 22 and ending, temporarily at least as of the time of this hearing, with a second shift walkout on July 10 while this hearingwas in progress. They are tabulated below and, as will appear, they occurred in all months between January and July, save April, and on all shifts. They were participated in by substantially all employees on the respective shifts, but for some minor abstentions on several occasions. The bulk of the participants in each walkout was the shift complement of the production department. The tabulation, based upon the Company's official records follows: TEXTILE WORKERS UNION OF AMERICA, CIO 765 UNAUTHORIZED PRODUCTION CESSATIONS DATE SHIFT NO. HOURS EXACT TIME EMPLOYEES PARTICIPATING 1-22-53 2 1 3:00-4:00 63 1-22-53 3 2 4:00-6:00 35 1-29-53 2 2 2 :00-4:00 62 1-30-53 3 if 10:30-12:00 33 1-31-53 1 7- 12:00- 8:00 40 2-2-53 2 74 8:00- 4:00* 26 2-2-53 3 5 6:30 - 12:00 35 2-9-53 2 3 1:00- 4:00 53 2-9-53 3 2 .8** 6:00- 9:00 11:45-12:00 34 2-10-53 1 3 12:00- 3:00 28 4-10-53 2 1.3 2:45- 4:00 60 4-10-53 3 2 4:00- 6:00 37 5-27-53 2 1.5 2 :30- 4:00 62 5-27-53 3 3 4:00- 7:00 33 6-11-53 2 2 2:00- 4:00 61 6-11-53 3 2 4:00- 6:00 33 6-17-53 2 2 2:00- 4:00 55 6-17-53 3 74 4:00-12:00 35 6-18-53 1 71 12:00- 8:00 34 6-24-53 2 11 2:30- 4:00 55 6-24-53 3 6 4:00- 6:30 8:00-12:00 35 6-25-53 1 21 12:00- 2:30 30 7 -1-53 2 11-1 2:30- 4:00 57 7-1-53 3 71 4:00-12:00 32 7-2-53 1 71 12:00- 8:00 32 7-10-53 2*** _ *Maintenance and Shippind (sic) and Receiving worked. **Time includes lunch , but not counted in 2.8 hours. ***This last walkout took place while the present hearing was in session and the full details are not now available. That the walkouts took place is not disputed by Respondents . In fact , Respondents contended at the hearing that the walkouts occurred during working hours because it was impractical for the large number of working mothers on the payroll to attend union meetings held during nonworking hours and that meetings held during such hours had been poorly attended. There is considerable testimony in the record as to these walkouts . It may be summed up by stating that with little or no warning the personnel of the shift would abrubtly cease work in midshift and leave the plant, ostensibly to attend a union meeting , although a small number of employees apparently went elsewhere on personal matters . In 6 instances there was a failure of the shift to report at all for 1 day and, in 2 instances , the third or 4 to 12 p. m. shift was absent twice on a particular shift; to illustrate , on February 9, the third shift worked from 4 to 6 p. m.; left from 6 to 9 p. m.; returned at 9 p. m.; and left again at 11:45 p. m. On June 24, the same shift did not report until 6:30 p. m.; the employees then worked until 8 p. m. and left for the remainder of the shift at that hour. None of these walkouts were authorized by management and permission to leave was never sought. In fact, on January 30, General Manager Jochim posted a notice to all employees protesting their engaging in lunch and rest period stretchouts , excessive breaks , deviations from working schedules , slowdowns , walkouts , and failure to work overtime. He urged the employees to abandon these tactics , all to no avail. Some description of the walkouts on specific occasions may be illuminating. On January 29, according to the uncontroverted testimony of then Assistant Production Foreman Nemeth, 766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the second shift returned from lunch and, as they punched in, were instructed by President Dvorscak of Local 1172 that there was to be a union meeting that afternoon. At 2 p. m., 2 hours before the end of the shift, 62 employees punched out and did not return that day. As is apparent, Respondents directed the walkout. On January 31, Shop Chairman Metzger parked his car in the plant driveway at approximately 11:30 p. m. He proceeded to direct the employees of the first shift, as they reported for work, to the location where a union meeting was to be held; in fact, he personally transported some of them to the meeting. The record indicates that steward Zacek was similarly engaged on this occasion. The employees of this shift, as the Company's records indicate, absented themselves for the entire shift. I find that both agents of Respondents directed this activity. The second shift on February 2 did report for work as scheduled. Production Superintendent Duffey had observed in the interim, however, that the work area needed a cleanup and issued instructions that work would commence when the area was put into operating condition; the employees were instructed by foremen, as well as by a notice on the bulletin board, that work would start around 10 a. m. The area was actually ready for production at 10:15 a. m. According to employee Hammerschmidt, Foreman Drysch instructed the employees to wait until the area was cleaned up. Some of the women employees became restless and spoke of leaving to attend a movie. President Dvroscak was consulted for his view of the matter. He promptly resolved the issue by announcing that "anybody that wants to go home can go home." The group of employees left and I assume that Respondents do not contend that this departure was for the purpose of holding a union meeting. I further find that Respondent Dvorscak authorized this departure of employees in his capacity as localpresident and contrary to the instructions of management that the employees wait and commence work. In fact, even the employees who performed the cleaning operations left when they completed the job, although scheduled for production work that day. Still later on February 2, International Representative McGrew was directly involved in an incident of this nature. A negotiating meeting had concluded that afternoon at the plant conference room. Production Superintendent Duffey entered the plant cafeteria, shortly after 6 p. m., and observed various employees of the third shift congregated there during their break, according to custom. Also present were McGrew and the local negotiating committee comprised primarily of the various officials including Dvorscak, Turk, Wirtschoreck, Zacek and particularly Steward Arnold Kaslofski. According toDuffey, McGrew started to leave the cafe- teria, turned to Duffey, and stated "You see, Duffey, they're still in the plant and I am leaving now and if they walk out it is your fault." McGrew started to leave; as he neared the exit he turned to the union negotiating committee and stated, "Now let me get down to the corner before you let anything happen." McGrew in large part corroborated Duffey's version ofthe incident. He contended, however, that there had been some repartee between Duffey and himself on this occasion; that he had told Duffey that the Company was trying "to put the people out in the street"; that the em- ployees were still in the plant; and that it was up to management to keep them there. After a few minutes he allegedly left, announcing that he was going home, and added, "Don't chase them out in the street." I credit Duffey's version of the incident. For while it my be that McGrew subjectively thought that he was uttering a kidding or joshing statement, or intended to do so, the em- ployees, and particularly Steward Kaslofski, who heard his remarks certainly did not so regard it; this supports the testimony of Duffey, a clear and meticulous witness whom I credit. For, as appears below, Steward Kaslofski, and not management as McGrew had claimed, some minutes later at 6:30 effectively directed the third shift to leave the plant and they oblig- ingly followed his exit. Significant, too, is the fact that the second shift had absented itself that day with the authorization of President Dvorscak of the Local, as set forth above. The third shift reported on schedule on February 2 and worked until approximately 6 p. m. I have previously set forth McGrew's statements to the local officials at or about that hour. In the observation of Personnel Manager Checchio and then Assistant Production Superintend- ent Olive, as they uncontrovertedly testified, Third Shift Steward Arnold Kaslofski, a machine operator, made a motion with his hand, immediately walked to the tune clock, and punched out and left. The rest of the shift immediately did likewise. Although, in the midst of this demon- stration by Kaslofski, Checchio asked him what he was doing, accusing him of signaling a shutdown of the department, Kaslofskididnotdeign to reply. None of the employees returned that night. TEXTILE WORKERS UNION OF AMERICA, CIO 767 A number of employees also presented testimony to the effect that with either little or no notice they would be informed while at .iorkthat a union meeting was to be held at an indicated hour and that they, accordingly, uniformly left the plant at the appointed hour. Most of these instructions were attributed to Second Shift Steward Frank Zacek , a member of the union negotiating committee, as well on one occasion to Secretary Turk of the Local; both, I find acted as agents of Respondents on these occasions, as did Dvorscak, Metzger, McGrew, and Kaslofski. In fact, Respondents concede that the officials of the Local arranged these meetings and informed employees of them. I find that Respondents instigated and authorized these walkouts. (f) Stevedores As found above, a slowdown instigated by Respondents was carried on in the shipping and receiving department. Due to the inability of the Company to get freight cars unloaded suffi- ciently rapidly by employees, the production department was short of raw materials. On a number of occasions in February the Company, as a result, contracted with an outside stevedoring concern to unload its freight cars , utilizing employees of that concern on four dates in February. On a fifth occasion, February 14, the stevedores were scheduled to report for work and actually were on their way to work, but were met in the vicinity of the plant by a group of local officials. With the exception of one witness there is no direct evidence of what was said to the stevedores but they forthwith left the area, expressing to the management officials who appeared on the scene their concern over incurring physical injury. The only direct evidence as to what was said is the admission by Respondent and Shop Chairman Metzger that he spoke with the stevedores on that occasion while they were in the vicinity of the plant. He admittedly told them that they were drunk, that there was a labor dispute , and that they were likely to run into a picket line . However, there was no picket line at the plant and there is no evidence that the men were drunk. No explanation is offered by the Respondent for this conduct, and on this record it can most reasonably be inferred that the purpose of this conduct was to impede production , as was the other conduct contemporane- ously engaged in; I so find. It may be noted that, in the absence of any allegation in the complaint of a violation by Respondent of Section 8 (b) (4) (a ) of the Act, despite the fact that this conduct appears to be violative thereof, no finding of such a violation is made herein. (g) Concluding findings ; Respondents ' motive I have hereinabove set forth the various types of conduct engaged in by Respondents and their agents . These include; (1) a ban on overtime work; (2) unauthorized extension of rest periods; (3) refusal to work hours scheduled by management but reporting at other hours; (4) slowdowns in production ; (5) unauthorized walkouts ; and (6) inducing stevedores not to work. Each type of conduct that was engaged in, it is found, was not a spontaneous action by em- ployees, but rather an action by or at the express instigation of Respondents. Nor could it be contended, as will appear below in more detail, that any of this activity constituted a strike in the commonly understood sense of the word so as to render these activities protected under Section 7 of the Act. For none of the activity involved a withholding of employment until management yielded to economic demands . In fact, Respondents make no contention that this activity bore any relationship to their economic demands made upon management at that time, with the exception of the walkouts at which it is claimed reports on negotiations were made to employees. Obviously, no such claim could be made with respect to the slowdowns and extensions of rest periods which might more accurately be likened to a partial sitdown strike or a strike on the installment plan. See N. L. R. B. v Fansteel Metallurgical Corp., 306 U. S. 240; Conn Ltd. v. N. L. R. B., 108 F. 2d 390 (C. A. 7); N. L. R. B. v. Rockaway News Supply, Inc., 345 U. S. 71, affirming 197 F. 2d 111 (C. A. 2); and Peyton Packing Co., Inc., 49 NLRB 828. The refusals to work overtime , the reporting for work at times other than those scheduled, and repeated walkouts for portions of shifts , while perhaps concerted activities are not, as will appear hereinafter, classified as protected concerted activities which acquire the protection of Section 7 of the Act. "Congress has concurred in the view that neither Section 7 nor Section 13 confer absolute right to engage in every kind of strike or other concerted activity ... . .. International Union UAW, et aL.v. Wisconsin Employment Relations Board, et al., 336 U. S. 245. I shall hereinafter treat with one of Respondents' defenses which is based upon this decision. 768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The previous findings have demonstrated the motive of Respondents in engaging in this conduct. Some testimony was adduced by Respondents to the effect that the walkouts during shift hours were caused by the desire of employees to receive reports on the pending nego- tiations with management, as found these walkouts were authorized or ratified by Respondents. Their claim is correct , so far as it goes , in tying these walkouts in to the pending nego- tiations . But the purpose actually went further. Initially. it may be noted that when negotiations were being carried on in 1951 for the original contract , similar walkouts took place during shift hours despite the Company's protest against this conduct. Significantly , McGrew admitted that when no negotiations were being carried on, at a later date , local meetings were seldom held . As found, a similar pattern followed during the 1953 negotiations with walkouts commencing in January of 1953. Metzger 's statements on January 27, 1953, set forth above, are most demonstrative of Respondents ' true attitude in this matter . On that occasion, he addressed a group of first shift employees and informed them that "when their machines broke down the employees should take their time in restoring them to operating condition , and by that maybe the Union and the Company could come to some agreement a lot sooner than they had been." A similar expression of policy was Metzger 's statement at a shift meeting late in January, in response to an employee's question, that "we have to keep on going like that for an hour and a half to two hours to keep the production down"; this was in response to a complaint by the employee that she was experiencing difficulty in holding her production down. That this has no conceivable relationship to a protected concerted activity is apparent. I fail to see how an instruction of this nature can be explained on any other basis than as a flagrant attempt by unprotected means to force the employer 's hand in the then current bargaining negotiations ; nor has such other attempt been made. In a similar vein is McGrew's thinly disguised instruction at or about the same time at a meeting of employees that the employees could slow down production and take longer rest periods; this it must be noted was stated in the same speech in which he expressed the belief that General Manager Jochim would give in to the union demands in the pending negotiations. Nor can the instruction of McGrew on February 2 to union officials to permit him to leave the plant before the employees walked out , which instruction was followed to the letter, be explained away on any other basis . The walkout was not spontaneous , but was rather directed by Respondents . While the employees may' have attended a union meeting on this occasion, as they did on most others , I find that the entire tactic was correlated to Respondents economic demands then pending. The various instructions by stewards to slow down in produc- tion, extend rest periods , not to work overtime , and to report at other than the set working hours, as set forth above, serve only to confirm the foregoing. Those types of conduct had no conceivable relationship to attendance at union meetings, but were nevertheless simul- taneously engaged in during this period, as I find, solely to force the hand-of the Company in collective bargaining ; no valid explanation has been offered for these other tactics. That the foregoing conduct was effective is demonstrated by the charts based upon produc- tion records at the plant. Respondents attempted to develop testimony to the effect that the employees were experiencing difficulty during this period with a new type of machine then being installed by the Company. The record shows that the Company was changing over gradu- ally from a machine known as the "boat" to the "two-way." A number of employees testified for Respondents that they experienced difficulty when they were first assigned to these new machines . This changeover commenced in October of 1952 with a gradual increase in the number of two-way machines and a corresponding decrease in the number of boat machines until the changeover was completed in June of 1953; the changeover started with 8 boat machines and 1 two-way machine and terminated with 11 two-way machines. But this contention by Respondents falls of its own weight when other testimony by these identical witnesses is considered . For they uniformly testified that they progressed gradually and improved their performance on these machines throughout the entire period . This then places them in the position of admittedly improving their production on the two -way machines at the very time that company records demonstrate that production took drastic and sudden drops. Also destructive of this contention is the fact that the slump in performance and work output also manifested itself in the shipping and receiving department, during the same period, where , and I so find , there had been no changes in machinery or equipment . Moreover, this slump manifested itself on production from the older boat machines , in the same manner and at about the same time as it had on the newer two-way machines . This is not explained by Respondents nor is an explanation attempted. TEXTILE WORKERS UNION OF AMERICA, CIO 769 Respondents also adduced evidence to the effect that poor materials resulted in jams on the machines, thus affecting the output of the more complicated two-way machine. But this claim, too, must fall of its own weight. Not only did General Manager Jochim credibly testify that there was no variation in the quality of the materials used during the period in question, and I so find, but in addition, the evidence concerning the contemporaneous drop in production from the older boat machines also rebuts this claim which was directed solely at the two-way operating characteristics. This is further supported by the fact that production on both types of machines rose impressively after employeeswerewarned on February 5 for engaging in this conduct. Finally, the evidence shows that but 1 new two-way machine was added between January and April 1, during which time the slowdown took place; by contrast, although 5 machines were operating on November 1 and 6 on December 1, 1952, there was no slowdown during those months, and, as stated, the operators were admittedly improving during this entire period. As there is no other explanation of any substance in the record, the evidence therefore preponderates in favor of a finding that the various tactics engaged in by Respondents, set forth above, were as they were calculated to be, disastrous to the Company's production efforts at a time when it had a greater demand for its product than ever before, and at a time when the Company, although bargaining in good faith, was resisting some of Respondents' demands for improved terms in a new agreement. It may be noted that while there is additional documentary proof offered to demonstrate the effect of Respondents' conduct, the participation therein by agents of Respondents, and the tie-in of this conduct to drops in production, I deem it unnecessary to add to these matters to an already long report in which the evidence preponderates heavily against Respondents. 3. Analysis, contentions, and conclusions It is now established that by enacting Section 8 (b) (3) of the Act "it was the purpose of Congress to impose upon labor organizations the same duty to bargain in good faith which had been imposed upon employers in Section 8 (5) of the Wagner Act and continued in Section 8 (a) (5) of the amended Act." National Maritime Union of America,et al.,78 NLRB 971, 980. Spe Chicago Typographical Union, et al., 86 NLRB 1041. Following this pronouncement of policy, it is noted that cases dealing with employer violations of Section 8 (a) (5) of the Act hold that an employer refuses to bargain with a labor organization when it closes down its factory to circumvent such bargaining. N. L. R. B. v. Somerset Classics, Inc., et al., 193 F. 2d 613 (C. A. 2) cert. denied, 344 U. S. 816 and N. L. R. B. v. Brown Co., et al.,184 F. 2d 829 (C. A. 2). Similarly, it has been held that the threat of a shutdown by an employer, in the event of union organization, also constitutes evidence of a refusal to bargain. U. S. Gypsum Co., 90 NLRB 964; Star Beef Co., 90 NLRB 1676, enfd. 193 F. 2d 8 (C. A. 1); Piedmont Cotton Mills, 79 NLRB 1218, enfd. in this respect 179 F. 2d 345 (C. A. 5); Service Metal Industries, Inc., 96 NLRB 10, enfd. 200 F. 2d 48 (C. A. 6); and Whiting Lumber Co., 97 NLRB 265. Stressed herein by the General Counsel is the decision of the Board in Phelps Dodge Copper Products Corp.. 101 NLRB 360, where the Board was confronted with the question whether an employer was under a duty to bargain with a labor organization at a time when the latter was sponsoring and engaging in a slowdown. While that decision dealt solely with the issue there at hand, the language actually goes much further. The Board there stated as follows: While the precise issue here is one of first impression, the area is not without guideposts. 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. [Times Publishing Company, 72 NLRB 676. ] 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 wgJ1 esrgbh5hgd that a slowdown is form of concerted activity unprotected by the Act. Elk Lumber Co., 91 NLRB 333. ] The vice of the slowdown derives in part from the attempted dictation by employees, through this conduct, of their own terms 339676 0 - 55 - 50 770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of employment . They are acceptinI compensation from their employer without giving him a regular return of work done. In the Wisconsin case [International Union, U .A.W. v. Wisconsin Employment Relations Board, 336 U. S. 245. ] the Supreme Court recently likened to a slowdown a union's intermittent work stoppages following unsuccessful bargaining negotiations and described both as "coercive." In the instant case, by engaging in the slowdown , the Union subjected the Respondent to a partial strike designed to bring pressure for acceptance of its terms . The Union was unwilling to chose between working under the existing terms of employment and engaging in a total strike with a loss of wages and the risk of law ful replacement incident thereto. Instead it engaged in a harassing tactic irreconcilable with the Act 's requirement of reasoned discussion in a background of balanced bargaining relations upon which good faith bargaining must rest . 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. ( Emphasis added.) As is apparent the above language to which emphasis has been added , although going beyond the narrow issue in the Phelps Dodge decision, constitutes almost precisely the finding that the General Counsel is seeking herein . The Elk Lumber decision cited above , which character- ized the conduct engaged in as a refusal to accept the employer 's terms of employment and an attempt to work on the employees ' own terms , is supported by still other authorities. Thus, in Super -Cold Southwest Company, 81 NLRB 96, the Board held that the discharge of employees for disobeying orders to work overtime, and instead attending a union meeting, was not violative of the Act. In Gulf Coast Oil Co., 97 NLRB 1512, a group of employees instead of reporting for work went to a union hall and formalized their admission into that organization . Someofthem were replaced , butthe remainder was denied reinstatement although the employer knew the purpose of their reporting to the union hall. The Board went on to say that "nor do we believe that, apart from any element of discriminatory motivation, the concerted activity of the old drivers was of a type which immunized them against discharge. The activity here amounted to an unwarranted usurpation of company time by the employees to engage in a sort of union activity customarily done during non-working time ." (Emphasis added.) I deem the foregoing language particularly significant to an evaluation of the conduct of the shift employees in this case who left work during working hours to attend union meetings. See Conn Ltd. v. N. L. R. B., 108 F. 2d 390 (C. A. 7); N. L. R. B. v. Superior Co., 199 F. 2d 39 (C. A. 6); Mansbach Metal Co., 104 NLRB 797; G. Lowry Anderson , Inc.. 103 NLRB 1711; Stolle Corp ., 103 NLRB 1103; Cohoon & Son , 101 NLRB 966; Stibbs Transportation Lines, Inc., 98 NLRB 422; Scott Paper Box Co., 81 NLRB 535; and Peyton Packing Co., Inc., supra. On the basis of the foregoing , the General Counsel contends that a violation of the Act logically flows terrefrom in-the present circumstances . True, these other decisions decide only that the conduct of the type here involved was an unprotected activity and I find that the conduct heretofore set forth, engaged in by Respondents in this proceeding , was clearly a pattern of activity not protected under Section 7 of the Act, on the basis of the cited Board authority and particularly the Phelps Dodge and Gulf Coast Oil Company decisions , supra But in the present case, another factor has been added . Respondents have engaged in these unprotected activities, all particularly designed to prevent the employer from operating its plant, at a time that they, Respondents, purported to be bargaining in good faith for the terns of a collective-bargaining agreement. This I believe and find constitutes the antithesis of collective bargaining in good faith and is further a rejection of the collective -bargaining principle. One need look no further than the Declaration of Policy in Section 1 (b) of the amended Act for authority . It there states "Industrial strife which interferes with the normal flow of commerce and with the full production of articles and commodities for commerce, can be avoided or substantially minimized if employers , employees , and labor organiza- tions each recognize under law one another's legitimate rights in their relations with each other.... " Similarly , Section 201 of the Act provides that " (a) sound and stable industrial peace and the advancement of the general welfare, health , and safety of the Nation and of the best interests of employers and employees can most satisfactorily be secured by the settlement of issues between employers and employees through the processes of conference and collective bargaining between employers and the representatives of their employees"; Here and elsewhere the Act clearly announces a policy of encouraging true collective bargaining. It is difficult to think of a clearer breach of good faith at the bargaining table TEXTILE WORKERS UNION OF AMERICA, CIO 771 than here. Stated plainly, it boils down to an instance of the right hand purporting to be bar- gaining in good faith and being blissfully unaware of the unprotected and unlawful activity of the left hand. Conceivably this might be approached on a technical, and what I deem un- realistic, basis and it might be held that an 8 (b) (3) finding is one restricted to conduct at the bargaining table, arguing that other remedies exist for this unprotected conduct. But it is precisely such a view that points up the fallacy of the claim. For, under the decisions cited above, an employer may discharge his employees for engaging in unprotected activities of the nature engaged in by Respondents herein. It is to my mind anomalous to follow this up by stating that, despite the right of the employer to discharge employees for such conduct, their labor organization which directed them to engage in such conduct will not be ordered to cease and desist therefrom and to thereafter bargain in good faith; one perforce flows from the other. I find support for this conviction in the language of the Board in the Phelps Dodge decision. The Board there referred to a labor organization which "exhibits a lack of fair dealing" and further engaged in "a harassing tactic irreconcilable with the Act's requirement of reasoned discussion in a background of balanced bargaining relations." The Board held that the slowdown "negated the existence of honest and sincere dealing in the Union's contemporaneous request to negotiate." And this is precisely what the General Counsel has contended herein. If the above-quoted language means what it says, it follows perforce, viewing this conduct by Re- spondents realistically for what it was and was calculated to achieve, that these Respondents have refused to bargain in good faith. Ican see no basis in logic for distinguishing this conduct from a contract demand for an illegal closed shop and a resulting work stoppage in support of that demand, which have been found by the Board to constitute a refusal to bargain. Fairmont Construction Co., et al., 95 NLRB 969. At this point certain of Respondents' defenses, not treated hereinabove, will be taken up. (1) In its brief, Respondents claim for the first time that rest periods were extended by the employees during a period of several months because they were suffering from strain brought on by the Company's experiments with new production methods. This claim I deem to be frivolous for the reason that it was not advanced at the hearing and for the further fact that there is no evidence in support ofit. The claim serves only to support the previous finding that this and the other conduct engaged herein by Respondents was motivated by a desire to harass and impede production and thereby exert pressure on the bargaining negotiations. (2) Respondents claim that the refusal to work overtime was a long-standing policy in the plant. The short answer to this is that the last contract between the parties established rates of pay for overtime work and was silent as to any overtime ban. Under these circumstances, the setting of hours of work was clearly a management function and overtime was properly scheduled. (3) Respondents claim that some or all of its practices, found herein to be unprotected, had been engaged in by them for a substantial period of time; that the Company took no steps to curtail them; and that the Company has therefore condoned it. The fact is that the Company did impose some disciplinary measures in February of 1953; indeed they were imposed upon shop chairman and International Representative Metzger among others. In addition, Respondents misconceive the nature of condonation which is properly applicable to a situation where an employer takes some affirmative action of a ratifying nature in the face of a known aberration, such as the case of a striker reinstated despite employer knowledge of his strike misconduct. What the claim of Respondents actually boils down to is that their conduct was of long-standing and that the Company is therefore estopped from claiming its illegality. In effect, Respondents are attempting to transfer the onus for their conduct to the Company and then characterize the position of the Company as one of eternal sm. I see no merit to this contention. (4) Respondents claim that they were not in a position to effectively call a strike at the Com- pany and that this should be taken into consideration as a mitigating circumstance in assessing their conduct. They point to the fact thatthe plant is located on a private street and claim that permission is needed to picket there. Thefactis however that there was no strike, permission to picket was never sought, and picketing is possible in the vicinity. What Respondents are actually attempting is to place reliance on those cases which permit picketing at a location removed from an employer's plant due to mitigating circumstances not pertinent herein and which need not be set forth. See Moore Drydock Company, 92 NLRB 547, and Schultz Refrig- erated Service, 87 NLRB 502. I fail to see how those cases can be of any assistance to Re- spondents where the sole issue herein is whether Respondents engaged in certain conduct for a specific purpose. There is no issue of primary of secondary picketing in this case. 772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (5) As stated above Respondents contended that shift meetings were called during working hours in order to provide a better attendance at union meetings in conformity with the wishes of the employees. However, as found above, this tactic was carried out because of an entirely different motive, namely, in order to exert pressure upon the Company. Respondents also claim that these meetings were called in order to properly inform the employees of what was going on in negotiations and thus refute the claims of the Company in letters to employees and in bulletin board notices. But by the same token this identical means of communication was open to Respondents and there is no issue of having an equal opportunity of communication with em- ployees which might serve as a mitigating circumstance under a totally different set of facts. (6) Respondents perhaps place their greatest stress herein on the decision in International Union, U.A.W., et al., v. Wisconsin Employment Relations Board, 336 U. S. 245. In that case, the Wisconsin board had enjoined conduct by a labor organization which was similar to that engaged in by Respondents herein. That labor organization challenged the jurisdiction of the State, claiming that there was Federal preemption of the field. The Court upheld the assertion of jurisdiction by the State, Respondents herein attach weight to some sweeping language in that decision which, it may be noted, is dictum, to the effect that the "Federal board has no authority either to investigate, approve or forbid the union conduct in question." The Court elsewhere stated that the Federal board "had been given no power" to forbid a strike "because its method is illegal" and that "the conduct here described is not forbidden by this [Federal] Act." While this language, at first blush, is impressive, it loses substantially all of its weight when note is taken of subsequent decisions bythe same court and by the Board. Thus the Court has subsequently upheld the discharge of a sympathetic striker although his conduct was not forbidden by the Act. N. L. R. B. v. Rockaway News Supply, Inc., 345 U. S. 71. And the Board has expressly enjoined concerted activity precisely because its method was illegal. Smith Cabinet Co., supra, and Cory Corp., 84 NLRB 972. Significantly, in a later decision involvingthe Wisconsin Board, the Court held that Congress had closed to State regulation the field of peaceful strikes in industries affecting commerce. Amalgamated Association, et al., v. Wisconsin Employment Relations Board, 340 U. S. 383. That decision might well appear to constitute authority for the proposition that the Federal board has exclusive let alone concurrent jurisdiction in this field. It must be borne in mind that the only issue, in the first Wisconsin case was, as the court stated, "whether Congress has protected union conduct which the state has forbidden and hence the state legislation must yield." The only point decided was that the intermittent work stoppages in that case were not "protected" under the Federal act from state action; as stated, the remainder of the decision was dictum and is therefore not deemed controlling herein. There is the additional factor that there is no evidence of any desire or intent of the State of Illinois to proceed in this matter. Even more significantly, so far as I am aware, that State does not have a mechanism, like that ofWiscons in, for the regulation of unfair labor practices as such. Therefore, I believe under the foregoing circumstances that, assuming the right of the State of Illinois to treat with the conduct in question herein under the police power of the State, this Board also has jurisdiction herein. See H. N. Thayer Co., et al., 99 NLRB 1122. What Respondents engaged in herein may well be summed up by the language of the Court of Appeals for the Seventh Circuit which said. "We are aware of no law or logic that gives the employee the right to work upon terms prescribed solely by him. That is plainly what was sought to be done in this instance. It is not a situation in which employees ceased work in protest against conditions imposed by the employer, but one in which the employees sought and intended to continue work upon their own notion of the terms which should prevail ... the facts do not constitute a strike." C. G. Conn Ltd. v. N. L. R. B., 108 F. 2d 390 (C. A. 7). And as found, the present Respondents engaged in this conduct for the primary purpose of forcing the Company's hand at the bargaining table. I find, in view of the foregoing considera- tions, that by engaging in the various types of conduct enumerated above, Respondents have refused to bargain collectively in good faith with the Company, within the meaning of Section 8 (b) (3) of the Act. C. Restraint and coercion Several incidents are claimed by the General Counsel to independently constitute evidence of restraint and coercion by Respondents within the meaning of Section 8 (b) (1) (A) of the Act. Thus, on February 19, 1953, as found, employee Arthur Menken, who had arranged to work overtime and was desirous of doing so, was warned by Respondent and Local Secretary Turk, TEXTILE WORKERS UNION OF AMERICA, CIO 773 "You better not work any overtime if you know what's good for you." This threat was uttered while Menken was at work that day and was followed during the same work day by another warning and threat from Steward Kaslofski to punch out when his 8 hours were up "if I knew what was good for me or I'd be sorry." Dorcie Whisler , whose testimony has previously been referred to, presented his testimony herein in deposition form on July 2, 1953, while under subpena, prior to the commencement of the hearing. On July 1 he was approached by Vice-President Wirtschoreck of the Local who advised him not to comply with the subpena or any subsequent subpena , describing these docu- ments in obscene terms. Wirtschoreck went on to state that , "You are awful foolish for going down there, Dorcie. I don't want to see you get hurt and you are only sticking your neck out." Wirtschoreck added, "I am just tellingyou this for your own good because you don't have to go down there ... if you do go down just tell them you don't want to talk." I find that the fore- going statements constituted a threat against Whisler. Just as testifying for and thus assisting a labor organization is deemed to be a protected concerted activity , Section 7 of the Act equally guarantees employees the right to refrain from assisting labor organizations in this manner and accordingly to testify against them if they wish. Progressive Mine Workers v. N. L. R. B., 187 F. 2d 298 (C. A. 7); Tri-County Employers Association, 03 NLRB 653; Ameri- can Thread Company, 101 NLRB 1306; Fox Midwest Amusement Corp., 98 NLRB 699; Medford Building and Construction Trades Council, 96 NLRB 165; and Shell Oil Co., 95 NLRB 102. I regard similarly herein and find equally violative of the rights of employees , the pressure exerted upon Adeline Kreil several days before she testified by Secretary-Treasurer Biga of the Local, as set forth above . Apparently having discovered that she was under subpena Biga asked Krell if she proposed to testify against Respondents . When Krell replied in the affirmative, Biga stated , "the people are going to make it pretty tough for you if we win. I hope you testify the right way." I find that Biga 's statement constituted a threat and was therefore violative of Kreil 's right to testify and refrain from assisting a labor organization.8 On January 28, as previously found , Shop Chairman Metzger parked his automobile in the only driveway leading into the plant at approximately 11:30 p. m., and proceeded to direct the first shift employees, as they reported for work, to the location where a union meeting was to be held . As a result, the shift was absent for the entire shift period from midnight to 8 a. m. The plant entrance at the gate opening is slightly over 19 feet in width , clearly wide enough for two automobiles to pass. According to the credited testimony of Foreman Robert Vath, he approached the driveway at approximately 11:40 p. m. and saw Metzger's automobile parked so as to prevent the passage of any other automobile. The vehicle faced the street at an angle and was resting diagonally across the gate entrance ; it was so situated as to leave less than a car width in space on either side. Metzger's car remained there for 4 or 5 minutes at which time he moved it in order to permit Vath to drive in . Metzger then backed his car into the same position across the driveway. Rank-and-file employees were in thevicinity at the time and , according to Vath, cars on both sides of the entrancewere respectively unable to leave or enter the plant parking area. That Metzger's purpose was to procure the attendance of the first shift employees at a union meeting and their corresponding absence from work has been found hereinabove; he was assisted in this by StewardZacek.Icredit Vath' s testimony herein and discredit Metzger's testimony that he parked his automobile so as to leave room for other cars to pass. The unreliability of his testimony, previously detailed, need not be repeated . I find that the fore- going conduct also constitutes restraint and coercion. United Mine Workers of America, 103 NLRB 1572, and Smith Cabinet Manufacturing Co., 81 NLRB 886. The General Counsel also argues with considerable logic for a finding herein that Re- spondents ' conduct hereinabove found to be violative of Section 8 (b) (3) of the Act, save for the conduct directed at the stevedores , is also violative of Section 8 (b) (1) (A) of the Act in that the employees of the Company have been restrained and coerced in the exercise of the rights guaranteed by Section 7 of the Act. As he recognizes , the Board has held that peaceable strike action by a labor organization to obtain an unlawful closed-shop agreement is not violative of Section 8 (b) (1) (A) of the Act. Amalgamated Meat Cutters, 81 NLRB 1052. But he argues , and I agree, that an intrinsic distinction may be made between that case and its supporting line of authority and, on the other hand , the present case where the crux of the matter is the tactics and means utilized by Respondents rather than solely the illegal objective to be obtained thereby. 8 Although Biga exerted similar pressure on another witness , Hammerschmidt, his language in that instance contained no threat and I base no adverse finding thereon. 774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD If the Board finds the picketuigofanemployer's premises so as to block ingress and egress violative of the Act, in that it restrains and coerces employees who wish to work in the face of strike action, and as a result are unable to, then the slowdowns, short walkouts, and ex- tensions of rest periods engaged in herein similarly restrained and coerced those employees at the Company who desired to work. In the present case there is evidence that other em- ployees were desirous of working on those occasions and it follows, viewing this matter realistically and not in an overly legalistic sense, that they were just as effectively prevented from working as in the mass picketing situation, and, moreover, by Respondents' physical tactics. 9 These unprotected and unlawful activities by Respondent have in fact compelled other em- ployees, by their very tactics, and in a very direct sense, to forego their right to refrain from engaging in ccacerted activities. It is obvious that the attempts of Respondents to interfere with and shut down production were just as directly aimed at those employees who did not support the unlawful activities being carried on. Here, unlike the Amalgamated Meat Cutters decision, supra, and subsequent decisions, we are not confronted with the claim that the prime objective of the conduct under consideration was the protection of the interests of the members of Respondents. In this respect, see the language in Capitol Service Co. v. N. L. R. B., 204 F. 2d 848 (C. A. 9). I find therefore that the above specified conduct by Respondents constitutes restraint and coercion of employees and is therefore violative of Section 8 (b) (1) (A) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondents set forth in section III, above, occurring in connection with the business operations of the Company set forth 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 It has been found that Respondents, by engaging in various types of unprotected activity, in a context of collective bargaining, have refused to bargain in good faith with the Company. It has further been found that by such conduct, as well as by other independent conduct, Respondents have restrained and coerced employees in the exercise of the rights guaranteed under Section 7 of the Act. It is noteworthy herein, in fashioning a remedy, that even while the present hearing was in progress, a walkout similar to those described hereuiabove took place and there is no evidence of any disavowal of responsibility for same by Respondents. I shall therefore recommend that Respondents cease and desist from engaging in the foregoing unlawful conduct and from in any manner restraining and coercing employees of the Company in the exercise of the rights guaranteed by the Act, and that Respondents also take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the above findings of fact and upon the entire record in the case I make the following: CONCLUSIONS OF LAW 1. Textile Workers of America, CIO, and Local 1172, Textile Workers of America, CIO, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By refusing to work overtime, refusing to work special hours, extending rest periods, engaging in slowdowns, engaging in walkouts or partial strikes for portions of shifts or for entire shifts, and by inducing employees of other concerns not to perform work for the Company, at a time when contract negotiations were being carried on with the Company, Respondents, their representatives, officers, and agents including Earl McGrew, Frank M. Metzger, Anton Dvorscak, and Frank Turk have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (3) and 8 (b) (1) (A) of the Act. 3. By threatening employees with reprisals for working overtime and giving testimony in this proceeding, and by blocking ingress and egress.to and from the plant, Respondents, 91 do not rely herein on the refusal to work special hours or overtime or on the conduct directed at stevedores and do not pass thereon. TEXTILE WORKERS UNION OF AMERICA, CIO 775 their representatives , officers , and agepts have engaged in and are engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A ) 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 MEMBERS OF TEXTILE WORKERS UNION OF AMERICA, CIO, AND LOCAL 1172, TEXTILE WORKERS UNION OF AMERICA, CIO, AND TO ALL EMPLOYEES OF PERSONAL PRODUCTS CORPORATION 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 you that: WE WILL NOT refuse to bargain collectively with Personal Products Corporation, for the bargaining unit described below, by engaging in slowdowns and unauthorized extensions of rest periods; by engaging in walkouts or partial strikes for portions of shifts or entire shifts ; by inducing employees of other concerns not to perform work for the Company; by refusing to work special hours or overtime ; or by engaging in any similar or related conduct in derogation of the statutory duty to bargain. The bargaining unit is: All production and maintenance employees excluding guards , inspectors, and office, clerical, and supervisory employees. WE WILL NOT threaten employees of Personal Products Corporation with reprisals for working overtime. WE WILL NOT threaten employees of Personal Products Corporation with reprisals for giving testimony in a proceeding before the National Labor Relations Board. WE WILL NOT block plant entrances so as to block ingress and egress of employees. WE WILL NOT in any other manner restrain or coerce the employees of Personal Products Corporation in the exercise of the right to refrain from engaging in any of the activities guaranteed by Section 7 of the National Labor Relations Act, except to the ex- tent that such right may be affected by an agreement requiring membership in a labor organization , as authorized in Section 8 (a) (3) of the Act. TEXTILE WORKERS UNION OF AMERICA, CIO, Earl McGrew Labor Organization By .............................................. ... . .... • ................................ Frank R. Metzger (Agent or representative) (Title) ........................ LOCAL 1172, TEXTILE WORKERS UNION OF Anton Dvorscak AMERICA, CIO ........................ By .............................................................................................. Frank Turk (Agent or representative) (Title) Dated ................ This notice must remain posted for 60 consecutive days from the date hereof , and must not be altered , defaced, or covered by any other material.